SewTech USA v. Jackson CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. 37-2012-00076414-CU-BC-SC
- Trial judge
- John S. Meyer
- Outcome
- dismissed — Appeal dismissed; judicial notice request denied.
- Area
- civil
- Panel
- Richard D. Huffman, Sr. (author), Patricia D. Benke, Joan K. Irion
Analysis
The trial court set aside a clerk's entry of voluntary dismissal, determining it was erroneously entered and that the appellants lacked standing to oppose the motion. The Court of Appeal dismissed the appeal on its own motion, concluding that the trial court's order correcting a ministerial clerk error was not an appealable final judgment.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Trial court order setting aside and vacating the clerk's entry of voluntary dismissal“The trial court's June 28, 2013 decision to correct the clerk's entry did not constitute an appealable order, however, because that decision did not reflect the essential underlying final resolution of the action as a whole.” | unclear | not reached | agree with court The appellate court did not review the merits of the trial court's decision to set aside the dismissal because it determined it lacked jurisdiction. The court held that the order was not appealable under Code of Civil Procedure section 904.1 because it did not constitute a final judgment or an order expressly made appealable by statute. The court characterized the underlying clerk's dismissal as a ministerial act and the trial court's correction as an exercise of supervisory authority under section 128, neither of which creates an appealable event until the action is finally resolved. |
Authorities
- relied: H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357 — A voluntary dismissal entered by a clerk pursuant to a written request is a ministerial act, not an appealable judicial act.
- relied: In re Conservatorship of Martha P. (2004) 117 Cal.App.4th 857 — When Code of Civil Procedure section 581, subdivision (b)(1) applies, neither the clerk nor the trial court has discretion in the matter of voluntary dismissal.
- relied: Conservatorship of Ben C. (2007) 40 Cal.4th 529 — A reviewing court has inherent power to dismiss an appeal which it cannot or should not hear and determine.
- relied: Griset v. Fair Political Practices Commission (2001) 25 Cal.4th 688 — An appealable order is essential for the exercise of appellate jurisdiction.
- relied: Jennings v. Marralle (1994) 8 Cal.4th 121 — An order is not appealable unless expressly made so by statute.
- relied: Basinger v. Rogers & Wells (1990) 220 Cal.App.3d 16 — Distinguished or noted as contrary to the principle that voluntary dismissals via clerk request are ministerial.
The appellate opinion: sound — The opinion is sound because it correctly applies the well-established principle that ministerial acts by court clerks and subsequent corrections of those acts by the trial court under its supervisory powers do not constitute final judgments appealable under Code of Civil Procedure section 904.1. The court properly identified that the trial court's order did not resolve the underlying action on the merits, thus lacking the finality required for appellate jurisdiction.
How this analysis was made · dispute it
unusual dispositionThe trial court granted plaintiffs' motion to set aside the clerk's entry of a voluntary dismissal with prejudice that had been filed in pro. per. by one plaintiff after counsel withdrew, finding the dismissal was erroneously entered and that the defaulted defendants lacked standing to oppose. On appeal, the Court of Appeal held on its own motion that the order vacating the clerk's ministerial entry of dismissal was not an appealable order, dismissed the appeal, and denied respondents' request for judicial notice.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Order of June 28, 2013 granting plaintiffs' motion to set aside and vacate the clerk's entry of voluntary dismissal with prejudice (and finding defaulted defendants lacked standing to oppose)“court determines that the Request for Dismissal was erroneously entered.” | unclear | not reached | unsure The panel never reached the merits; it held the clerk's entry of a voluntary dismissal is a ministerial act (H.D. Arnaiz) and the order correcting it did not finally resolve the action, so no appealable order existed under section 904.1. The result is defensible, but the opinion itself flags contrary authority (Basinger) with a 'but see' and does not reconcile it, nor does it analyze whether a dismissal with prejudice entered by the clerk operates as a final judgment such that an order vacating it is appealable under section 904.1, subdivision (a)(2). Because the appealability question is contested in the case law and the panel's analysis is brief, I cannot say with confidence that the jurisdictional ruling was correct or incorrect. |
Authorities
- relied: H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357 — A voluntary dismissal entered by the clerk on written request is a ministerial act, not a judicial act, and is not an appealable final judgment.
- relied: Griset v. Fair Political Practices Commission (2001) 25 Cal.4th 688 — An appealable order or judgment is a jurisdictional prerequisite to appellate review.
- relied: Jennings v. Marralle (1994) 8 Cal.4th 121 — An order is not appealable unless expressly made so by statute; appealability is jurisdictional.
- relied: Conservatorship of Martha P. (2004) 117 Cal.App.4th 857 — When section 581, subdivision (b)(1) is properly utilized by a plaintiff, neither the clerk nor the trial court has any discretion regarding entry of the dismissal.
- relied: Conservatorship of Ben C. (2007) 40 Cal.4th 529 — A reviewing court has inherent power, on motion or its own motion, to dismiss an appeal it cannot or should not hear and determine.
- relied: Basinger v. Rogers & Wells (1990) 220 Cal.App.3d 16 — Cited by the panel only as contrary ('but see') authority on whether a voluntary dismissal with prejudice is an appealable judgment; the panel did not reconcile it with H.D. Arnaiz.
- missed: Gagnon Co. v. Nevada Desert Inn (1955) 45 Cal.2d 448 — Supreme Court decision treating a voluntary dismissal as having the effect of a judgment and reviewing on appeal a trial court order setting such a dismissal aside; binding authority bearing on whether an order vacating a clerk-entered dismissal is appealable.
The appellate opinion: sound with gaps — The panel correctly framed appealability as jurisdictional and cited apt authority for the ministerial character of a clerk's entry of voluntary dismissal, and dismissal for want of an appealable order is a defensible result. However, it acknowledged contrary authority (Basinger) with a bare 'but see,' did not address Supreme Court precedent treating orders vacating voluntary dismissals as reviewable, and did not analyze whether a dismissal with prejudice functions as a final judgment under section 904.1, subdivision (a)(2).
Opinion
Filed 11/5/14 SewTech USA v. Jackson CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SEWTECH USA, LLC, et al., D064402 Plaintiffs and Respondents, v. (Super. Ct. No. 37-2012-00076414- CU-BC-SC) CHRISTOPHER JACKSON, et al., Defendants and Appellants.
APPEAL from a judgment of the Superior Court of San Diego County, John S.
Meyer, Judge. Motion to dismiss appeal granted; request for judicial notice denied.
Christopher Jackson, in pro. per., for Defendant and Appellant Christopher Jackson.
La Toya Hicks, in pro. per., for Defendant and Appellant La Toya Hicks.
Fagelbaum & Heller, Philip Heller and Jerold Fagelbaum for Plaintiffs and Respondents.
This action for damages on contract and tort theories was brought by plaintiffs and respondents SewTech USA, LLC and its member/manager Neal Flaster (together Respondents), acting through counsel, against defendants and appellants Christopher Jackson and La Toya Hicks (Appellants), based on a dispute over a purchase agreement for a business membership interest. Appellants now challenge a trial court order of June 28, 2013 that granted Respondents' motion to set aside and vacate the superior court clerk's entry of dismissal of the action. (Code Civ. Proc., § 581 et seq.; all further statutory references are to this code unless noted.)
I
INTRODUCTION
The clerk's dismissal of this action on December 5, 2012 was entered pursuant to a request for voluntary dismissal with prejudice, nominally filed in propria persona by Flaster alone, after Respondents' counsel had withdrawn as attorney of record. As of that time, both Appellants (also in propria persona) were in default status and had brought several ex parte requests for immediate from default. They were told by the trial court to bring noticed motions instead.
Once Respondents obtained counsel, their application to set aside the clerk's dismissal was filed as an ex parte matter and later set for hearing. Over opposition by Appellants, the trial court set the clerk's dismissal aside, stating in the June 28, 2013 minute order that "given the timing of events (e.g., [Respondents] allegedly consenting to a dismissal when defaults were already obtained) and the contentious history between the parties, as well as no evidence to contradict [the individual Respondent's] declaration, the court determines that the Request for Dismissal was erroneously entered. [¶] The Court further notes that [Appellants] continued to be in default. They have no standing to 2 oppose this motion. [¶] The request for dismissal entered on December 5, 2012, is hereby set aside and vacated."
During preparation of this appellate record, this court sent a letter to the parties, citing to Griset v. Fair Political Practices Commission (2001) 25 Cal.4th 688, 696 and Jennings v. Marralle (1994) 8 Cal.4th 121, 126, for the concept that an appealable order is essential for the exercise of appellate jurisdiction, and an order is not appealable unless expressly made so by statute (e.g., a vacating order that vacates a prior appealable judgment). (§ 904.1, subd. (a)(2); 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 195, p. 272.) Our letter also cited to H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1364-1365, for the principle that a voluntary dismissal after a written request to the court clerk is not a final judgment because it constitutes a ministerial act, not an appealable judicial act. (But see Basinger v. Rogers & Wells (1990) 220 Cal.App.3d 16, 21.)
We then received Respondents' motion to dismiss the appeal, filed October 23, 2013, challenging the appealability of the June 28, 2013 order. The presiding justice determined that the parties' briefs on appeal should address the issue of appealability, and denied the motion to dismiss the appeal, without prejudice to consideration of the matter by this assigned panel.
Also before us at this time is Respondents' motion for judicial notice of copies of the registers of actions and case summaries in this action and in several related actions among the parties, both in the San Diego and the Los Angeles Superior Courts.
3 II
ANALYSIS
Our review of the record, motions and briefing leads us to conclude the June 28, 2013 order is not an appealable one. As explained in H.D. Arnaiz, Ltd. v. County of San Joaquin, supra, 96 Cal.App.4th 1357, 1364-1365, the clerk's entry upon the request for voluntary dismissal amounted to a ministerial act. (See In re Conservatorship of Martha P. (2004) 117 Cal.App.4th 857, 866 [when the voluntary dismissal section, section 581, subdivision (b)(1) applies "and is properly utilized by a plaintiff presenting a dismissal request to the clerk or court, '[n]either the clerk nor the trial court has any discretion in the matter.' "].)
Upon Respondents' showing about whether the clerk's dismissal procedure was properly utilized in this case, the trial court exercised its supervisorial authority to set it aside. (§ 128, subd. (a)(5) [court shall have power to "control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto"]'; § 128, subd.
(a)(8) [court's power to "amend and control its process and orders so as to make them conform to law and justice"].)
The trial court's June 28, 2013 decision to correct the clerk's entry did not constitute an appealable order, however, because that decision did not reflect the essential underlying final resolution of the action as a whole. (§ 904.1; see Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544, fn. 8 [" 'A "reviewing court has inherent power, on 4 motion or its own motion, to dismiss an appeal which it cannot or should not hear and determine." ' "].)
Although Respondents have requested oral argument, we have no jurisdiction to hear this case, due to the lack of an appealable order. We determine on our own motion that the appeal must be dismissed, foreclosing oral argument. The effect of this dismissal of the appeal is to leave the June 28, 2013 order in place. (§ 913; 9 Witkin, Cal.
Procedure, supra, Appeal, § 762, p. 835.) Respondents' judicial notice request is denied.
DISPOSITION
Appeal dismissed; judicial notice request denied. The parties are to bear their own costs on appeal.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
Cites, in this corpus
- San Diego County Health & Human Services Agency v. Ben C. S126664 · 2007-02-05
- San Diego County Health & Human Services Agency v. Martha P. D042175 · 2004-04-12
- H. D. Arnaiz Ltd. v. County of San Joaquin C035433 · 2002-03-21
- Griset v. Fair Political Practices Commission S077219 · 2001-05-24
- Jennings v. Marralle S034510 · 1994-08-01
- Basinger v. Rogers & Wells D009842 · 1990-05-08