Opinion
A159947
02-17-2021
MARY KAY PARTRIDGE, as Trustee, etc., Plaintiff and Appellant, v. COLDWELL BANKER CUTTEN REALTY et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. DR190631)
Plaintiff Mary Kay Partridge filed suit against several defendants seeking to recover damages in connection with her purchase of a home that she alleges was remodeled without appropriate permits and suffered substantial remodeling defects. The trial court sustained a demurrer to her first amended complaint, but plaintiff failed to amend within the time provided. Defendants brought a motion to dismiss, which the trial court granted "without prejudice." Plaintiff did not seek relief from the dismissal nor appeal.
Approximately eight months later, plaintiff filed a second action against the same defendants. The trial court granted defendants' motion to strike her first amended complaint without leave to amend and entered a judgment of dismissal. Plaintiff appeals from that judgment, contending she was entitled to file the second action because the first action was dismissed without prejudice. For reasons we will explain, we affirm.
I. BACKGROUND
Plaintiff filed a complaint in March 2018 (first action), alleging various causes of action against defendants Coldwell Banker Cutten Realty, Felicia Costa, and Hiscox & Son Construction. After the trial court sustained a demurrer to the complaint, plaintiff filed a first amended complaint, adding Paul Harris as a defendant. Shortly thereafter, plaintiff filed an "amendment" to her first amended complaint, dismissing Harris as a defendant, but the record does not reflect that it was served on defendants or that plaintiff sought or obtained leave of court to file an amended complaint. Defendants filed a demurrer and motion to strike the first amended complaint, which was sustained by the trial court with 20 days' leave to amend.
Plaintiff's and defendants' unopposed requests for judicial notice of documents, pleadings, and orders filed in the first action are granted. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
Plaintiff did not amend her complaint within the time provided. Defendants filed a motion to dismiss seeking dismissal of plaintiff's complaint with prejudice under Code of Civil Procedure section 581, subdivision (f)(2) (section 581(f)(2)). Plaintiff apparently filed a late opposition, and defendants filed a reply. In November 2018, the trial court granted the motion to dismiss "without prejudice."
All further statutory references are to the Code of Civil Procedure.
In July 2019, plaintiff filed another complaint against Coldwell Banker Cutten Realty, Costa, and Hiscox & Son Construction (second action). The second action alleged many of the same causes of action as the first action, predicated on virtually identical factual allegations. Shortly after defendants Coldwell Banker Cutten Realty and Costa filed a demurrer and motion to strike the complaint, plaintiff filed an "amendment" adding Paul Harris to the action. Paul Harris filed a joinder in the other defendants' demurrer and motion to strike, and his own demurrer.
Although Paul Harris was also named as a party in the original complaint in the second action and a breach of contract claim was alleged against him, he was not listed on the caption. Defendant Hiscox & Son Construction was dismissed with prejudice shortly after the complaint was filed.
On November 5, 2019, prior to the hearing on the demurrer, plaintiff filed a first amended complaint. Defendants brought demurrers and a motion to strike the first amended complaint. Plaintiff filed late oppositions to the motions, and defendants filed replies. After a hearing, the trial court granted defendants' motion to strike without leave to amend and dismissed the action pursuant to section 581, subdivision (f)(3). In explaining its ruling, the trial court stated: "[B]y filing this action after the dismissal of [the first action], without filing either an appeal of that dismissal or a motion under Code of Civil Procedure section 473 to be relieved of that dismissal, and in this action asserting essentially the same claims, Plaintiff misused the process of the court. 'A court may, by virtue of its inherent power to prevent abuse of its processes, strike an amended complaint which is filed in disregard of established procedural processes.' "
Harris again filed both a joinder in Coldwell Banker Cutten Realty and Costa's demurrer and motion to strike, and his own demurrer.
Section 581, subdivision (f)(3) allows the court to dismiss a complaint "After a motion to strike the whole of a complaint is granted without leave to amend and either party moves for dismissal."
Plaintiff filed a timely appeal.
II. DISCUSSION
Plaintiff contends the trial court erred because she had a right to file the second action since her first action was dismissed "without prejudice."
As the parties agree, we review the trial court's decision for an abuse of discretion. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612.) Under the abuse of discretion standard, we will not disturb the trial court's ruling absent a " ' "clear case of abuse" ' " and " ' "a miscarriage of justice." ' " (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.) The burden is on plaintiff to establish an abuse of discretion. (Leader, at p. 612.)
Section 581(f)(2) allows a court to dismiss the complaint, "[e]xcept where Section 597 applies, after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal." Here, as plaintiff concedes, the trial court sustained a demurrer to her first amended complaint in the first action and plaintiff failed to amend within the time allowed. Thereafter, defendants moved to dismiss the action with prejudice pursuant to section 581(f)(2) based on plaintiff's failure to amend.
Section 597 applies to certain special defenses not at issue here.
Although the trial court's order contained a conclusory statement that the action was dismissed "without prejudice," our courts have held that a dismissal under section 581(f)(2) is necessarily with prejudice. (Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330 (Cano); see Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 785 [defendant was entitled to dismissal with prejudice when trial court sustained demurrer and plaintiff failed to amend]; Kruss v. Booth (2010) 185 Cal.App.4th 699, 713, fn. 14 [noting the Cano opinion is "largely a gloss" on § 581, subd. (f)].)
In Cano, the appellate court considered and rejected the plaintiff's argument that a dismissal under section 581(f)(2) may be without prejudice. (Cano, supra, 143 Cal.App.4th at pp. 329-330.) There, the plaintiff omitted one of the defendants from his fourth amended complaint after having unsuccessfully stated claims against him in earlier pleadings. The defendant sought dismissal under section 581(f)(2), but the trial court dismissed him without prejudice. (Cano, at p. 329.) The Cano court reversed, directing the trial court to enter a dismissal with prejudice in favor of defendant. (Id. at p. 332.)
The court explained that although "[t]he phrase 'may dismiss' [in section 581, subdivision (f)] means discretionary dismissal," there have been "no cases [that] have held that a dismissal pursuant to [section 581(f)(2)] may be without prejudice. The right to dismiss without prejudice is expressly permitted by other subdivisions of section 581 but [section 581(f)(2)] does not so provide. [Citations.] '[A] plaintiff's right to a voluntary dismissal is cut off as of the moment there is a ruling which effectively disposes of the case.' [Citation.] The dismissal without prejudice is also at variance with the California Rules of Court. Rule 325(f) provides for dismissal, by ex parte application or noticed motion, of 'the entire action and for entry of judgment after the expiration of the time to amend following the sustaining of a demurrer . . . ." [Citation.] Judgment may only be entered if the case has been adjudicated to finality." (Cano, supra, 143 Cal.App.4th at pp. 329-330, italics added by Cano.)
California Rules of Court, former rule 325(f) has been renumbered rule 3.1320(h).
The Cano court concluded that under section 581(f)(2), a defendant has a right to dismissal with prejudice once the trial court sustains a demurrer to the complaint and the plaintiff fails to amend within the time allowed. (Cano, supra, 143 Cal.App.4th at p. 330.) Plaintiff does not discuss or distinguish Cano. We agree with the straightforward interpretation presented in that case, and decline to revisit the issue here.
Plaintiff also contends the first action was never determined " 'on the merits' " because it was dismissed without prejudice, and thus is not "entitled to res judicata effect." We find this argument unpersuasive. "The failure to amend and state a cause of action against defendant is an admission that plaintiff has stated the case as strongly as he can and there are no facts that could be alleged to cure the defect." (Cano, supra, 143 Cal.App.4th at p. 330; Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 457; see Keidatz v. Albany (1952) 39 Cal.2d 826, 828 [order dismissing suit after general demurrer has been sustained "is a judgment on the merits to the extent that it adjudicates that the facts alleged do not constitute a cause of action, and will, accordingly, be a bar to a subsequent action alleging the same facts. [Citations.] Moreover, even though different facts may be alleged in the second action, if the demurrer was sustained in the first action on a ground equally applicable to the second, the former judgment will also be a bar."].) The Cano court rejected the argument that the defendant could still be brought into the case on a theory not tested by the demurrer because such tactics would " 'allow him to reassert the same allegations in still another complaint, seeking a more favorable ruling from another court, rather than to proceed in a more appropriate, expeditious and final, course to appeal on the legal sufficiency of those allegations. [¶] The obvious consequence of such a statutory construction would be to prolong, rather than to terminate, lawsuits. It would not serve the orderly and timely disposition of civil litigation. No good reason appears why encouragement should be given to such tactics, the effect of which is to expose defendants to duplicative "annoying and continuous litigation," to burden our trial court with "fruitless" proceedings, and to delay the ultimate resolution of the validity of the plaintiff's pleading.' " (Cano, at p. 330, quoting Wells v. Marina City Properties, Inc., supra, 29 Cal.3d at pp. 788-789.)
We likewise find unpersuasive plaintiff's argument that sections 583.130, 583.410, and 581, subdivision (g), involving involuntary dismissals for delay in prosecution, provide for dismissal without prejudice and are not a final judgment on the merits. Plaintiff asserts, under these authorities, that she may file a new action so long as the statute of limitations has not run on her claims. This case, however, does not involve a discretionary dismissal for failure to prosecute under section 583.110 et seq. Plaintiff cites no facts showing any delay in prosecution of the matter, and neither defendants nor the trial court cited or relied on sections 583.130, 583.410, or 581, subdivision (g) as a basis for the court's order.
The only cases plaintiff cites in support of her argument, moreover, are inapposite because they concern discretionary dismissals for failure to prosecute (see, e.g., Buell v. CBS, Inc. (1982) 136 Cal.App.3d 823, 826-827 [dismissal under former § 581a for failure to serve the complaint is not a dismissal on the merits]; Fierro v. Landry's Restaurant Inc. (2019) 32 Cal.App.5th 276, 288 [dismissal under § 583.360 for failure to prosecute does not bar subsequent action]) or voluntary dismissals by plaintiffs (see, e.g., Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 190, 219 [trial court lost authority to dismiss case with prejudice after plaintiffs validly exercised right to dismiss voluntarily]; see also Wells v. Marina City Properties, Inc., supra, 29 Cal.3d at p. 784 [stating rule regarding voluntary dismissals]), facts not at issue in this case.
Here, the trial court dismissed plaintiff's second action because she failed to take any action to set aside the dismissal of the first action or appeal the judgment, and instead filed a second action alleging similar claims predicated on the same facts. On this record, plaintiff has not shown the trial court abused its discretion in dismissing the second action.
We note that although plaintiff complains the trial court relied on defense counsel's representations about the similarity of her claims in the first and second actions rather than reviewing the pleadings itself, plaintiff makes no effort to explain, with reference to particular facts or causes of action, how the claims in the second action are different from those raised in the first action or cure the defects in the original pleading. --------
III. DISPOSITION
The judgment is affirmed. Costs are awarded to defendants on appeal.
MARGULIES, ACTING P. J. WE CONCUR: BANKE, J. SANCHEZ, J.