Opinion
G044371 Super. Ct. No. 30-2009-00123484
11-01-2011
WILLIAM RICHEY et al., Plaintiffs and Appellants, v. KENNETH ELLIOTT et al., Defendants and Respondents.
John J. Gulino for Plaintiffs and Appellants. Stalter & Pentis, James T. Stalter and Charles H. Smith for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115 .
OPINION
Appeal from a judgment of the Superior Court of Orange County, Luis A. Rodriguez, Judge. Affirmed.
John J. Gulino for Plaintiffs and Appellants.
Stalter & Pentis, James T. Stalter and Charles H. Smith for Defendants and Respondents.
In this case involving an unincorporated homeowners association, defendants filed a motion for summary judgment. Thereafter, counsel for plaintiffs advised defense counsel that a deposition would need to be postponed due to one of the plaintiffs' ill health. According to plaintiffs, defense counsel advised their attorney to dismiss without prejudice, stating that perhaps they could informally resolve the matter at a later date. Weeks later, after the date their opposition to the motion for summary judgment was due, plaintiffs filed a dismissal without prejudice. The next day, defendants filed a notice of intent to proceed with the summary judgment motion.
The court subsequently vacated the dismissal and indicated it would hear the summary judgment motion. Plaintiffs did not seek to have the court reconsider that decision or seek other relief. Instead, plaintiffs' counsel filed a short declaration in opposition to the summary judgment motion stating plaintiffs had dismissed only because of the conversation between counsel about a voluntary dismissal. They submitted nothing else in opposition to the motion for summary judgment, which was eventually granted. Plaintiffs now appeal, arguing the dismissal should not have been vacated. They do not contend the court otherwise erred in granting summary judgment. We find no abuse of discretion, and we therefore affirm.
I
FACTS
The underlying facts of this case are not relevant to the appeal; suffice to say that the litigants are members of an unincorporated homeowners association in Santa Ana. The dispute is about how defendants conducted themselves with respect to proposed new construction adjacent to the association, the expenditure of association funds, and related matters. Among other things, plaintiffs William and Kaye Richey alleged that defendants Kenneth and Janet Elliott conducted a campaign of misinformation about them due to their support for the construction project. The causes of action alleged included conspiracy to invade privacy and invasion of privacy, intentional infliction of emotional distress, slander, interference with a protected property interest, breach of fiduciary duty, and conversion.
On April 12, 2010, defendants moved for summary judgment. The hearing was set for July 1. Plaintiffs' opposition was due on June 17.
Sometime during the first week of June, plaintiffs' counsel John J. Gulino spoke with defense counsel Stanley Feldsott by telephone. According to Gulino, he told Feldsott that Kaye Richey could not attend her scheduled deposition due to a recently diagnosed serious illness. He purports that Feldsott told him that plaintiffs should consider dismissing their action without prejudice, and that he was not aware of any statute of limitations issue that would preclude the refiling of the case at a later date. They then discussed the possibility that if Kaye Richey's health improved, the parties could meet and attempt to resolve the case informally.
On June 16, Gulino stated in a letter to Feldsott's cocounsel, Martin Lee: "Mr. Feldsott and I also had a telephone conversation regarding . . . the probability that, due to the serious illness of one of my clients, we may be dismissing this action, without prejudice and then making an effort to discuss a resolution of these issues between us without the need to refile when my client's health improves."
On June 22, plaintiffs filed request for dismissal without prejudice. The next day, plaintiffs filed a notice of intent to proceed with hearing regarding their summary judgment motion. Defendants cited Cravens v. State Bd. of Equalization (1997) 52 Cal.App.4th 253 (Cravens), for the proposition that a party cannot avoid a ruling on a motion for summary judgment by dismissing their action without prejudice after their opposition to the motion is due. Plaintiffs' opposition was due on June 17. The attached proof of service stated the notice of intent was served on plaintiffs by mail.
The summary judgment motion was taken off calendar on July 1, but on July 6, the court vacated plaintiffs' dismissal of the action. The motion for summary judgment was rescheduled for July 22. On July 20, Gulino filed a declaration summarizing his telephone conversation with Feldsott. He stated: "Had I not had conversations with Mr. Feldsott and had he not agreed to what appeared to be a reasonable alternative to this litigation, considering the health of Kaye Richey, I would have completed and filed opposition to the Motion for Summary Judgment." The record does not demonstrate that plaintiffs filed any other pertinent documents.
On July 22, the hearing was continued to July 29. There is no indication in the record that plaintiffs filed anything further to oppose the motion. On July 29, Feldsott and Gulino appeared in court. The court granted the motion for summary judgment. We know nothing further about the hearing, as a reporter's transcript was not provided, nor do we know defendants' precise grounds for their motion, as their actual motion for summary judgment is also not in the record, nor is any order granting summary judgment. Judgment in defendants' favor was entered on August 19.
II
DISCUSSION
This case presents the limited question of whether the trial court had the power to grant defendants' motion for summary judgment, when plaintiffs' request for dismissal was filed after the deadline had passed for plaintiffs to oppose the motion. We do not review the merits of the summary judgment motion itself, as plaintiffs neither argued the merits nor provided an adequate record for this court to conduct such a review.
Indeed, the appendix plaintiffs filed is extremely limited. It includes neither the motion for summary judgment or any exhibits thereto, and also does not include the order stating the reasons why the court granted summary judgment. To the extent that plaintiffs omitted any relevant documents from the record, any issues those documents might have raised are waived. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
Standard of Review
Plaintiffs argue, citing cases that are in an entirely different procedural posture, that our review is de novo because the issue presented is a question of law. We disagree. Tire Distributors, Inc. v. Cobrae (2005) 132 Cal.App.4th 538 (Tire Distributors), a case involving the same legal issue on very similar facts, determined that abuse of discretion is the proper standard, and we agree. (Id. at p. 544.)
Vacating the Dismissal
"A plaintiff has the right to dismiss a defendant or an entire action without prejudice before the commencement of trial. (Code Civ. Proc., § 581, subds. (b), (c).)When a dismissal has properly been filed, the trial court loses jurisdiction to act in the case." (Tire Distributors, supra, 132 Cal.App.4th at p. 542.) Certain judicially recognized exceptions to this right, however, have been recognized by the courts.
Subsequent statutory references are to the Code of Civil Procedure.
One such exception is the right to dismiss when the case is on the verge of being decided by a motion for summary judgment. "[P]arties are not permitted to voluntarily dismiss their actions after the court has made a dispositive ruling or given some indication of the legal merits of the case, or when the procedural posture is such that it is inevitable the plaintiff will lose. After such occurrences . . . plaintiffs lose their right to voluntarily dismiss their case." (Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 877.)
In Cravens, the seminal case in this area, the defendants moved for summary judgment, but rather than filing opposition, the plaintiff filed a request for a dismissal without prejudice the day before the hearing. (Cravens, supra, 52 Cal.App.4th at pp. 255-256.) The trial court granted the motion, and the Court of Appeal affirmed. (Id. at p. 255.) In summary, the court stated: "[A] plaintiff may not frustrate the summary judgment statute by interposing a voluntary dismissal without prejudice in lieu of opposition to a defendant's motion. The plaintiff who waits until a motion for summary judgment has been filed, and the time for opposition has passed, to attempt to dismiss his or her complaint, is subject to the trial court's continuing jurisdiction to hear and rule on the pending motion." (Id. at. p. 255.)
Other cases are in accord. (See Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765, 768-772 [plaintiff's dismissal untimely when filed after tentative ruling granting defendant's motion for summary judgment and after hearing is continued]; Sweat v. Hollister (1995) 37 Cal.App.4th 603, 614-615 [dismissal was untimely when filed after trial court issued a final order by telephone granting defense motion for summary judgment even though oral argument had not yet been heard], disapproved on another ground in Santisas v. Goodin (1998) 17 Cal.4th 599, 609, fn. 5.)
Further, unlike other types of motions, under the summary judgment statute, section 437c, subdivision (b)(3), the court has the discretion to grant a motion for summary judgment if timely opposition is not received. The statute provides that "opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed . . . . Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion." Thus, a motion for summary judgment is distinguishable from other dispositive motions where the lack of an opposition does not provide independent authority to grant the motion.
Here, plaintiffs' sole argument is that they did not file the request for dismissal in lieu of filing opposition to the motion for summary judgment, but because they were misled by defense counsel's suggestion to dismiss the case without prejudice. They argue that "defendants should not be allowed to take advantage of the failure of the plaintiffs to file opposition based on the agreement suggested b[y] defendants' counsel."
But at the time the court vacated the dismissal, it had no knowledge of these facts. The dismissal was vacated on July 6, 2010, and Gulino's declaration was not filed until two weeks later, on July 20, in an attempt to oppose the summary judgment motion. The facts that the court had before it at the time it vacated the dismissal — the filing of the summary judgment motion and the dismissal after the date for the opposition was due — constituted evidence that plaintiffs were attempting to evade a ruling on the motion, just as in Cravens.
Even if the court had been inclined to give the evidence provided by Gulino's declaration any credence, plaintiffs did not create the procedural opportunity for the court to do so. Indeed, they were entirely dilatory in their actions. Rather than dismiss shortly after the conversation between Gulino and Feldsott "[d]uring the first week of June," they waited until the deadline for their opposition to the summary judgment motion passed on June 17 and filed the dismissal on June 22. Once they court vacated the dismissal on July 6, they did not seek rehearing of that decision or request relief under section 473. Nor did they take any action that would have allowed them to oppose the summary judgment motion on its merits, such as requesting a delay in the hearing or seeking leave to file a late opposition.
We expressly do not hold that the court should have done so — indeed, the evidence plaintiffs point to in Gulino's declaration is thin, and supported only by a letter that does not go nearly as far as plaintiffs seem to think. But plaintiffs did not give the trial court the opportunity to reach any conclusions about the validity of their argument by filing a motion to reconsider the decision to vacate the dismissal, or another motion that would have addressed this issue directly.
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As far as we can discern, the only item they filed between June 23, the date defendants filed their notice of intent to proceed, and the July 29 hearing on the summary judgment motion was Gulino's four-page declaration regarding the dismissal. That declaration was entirely ineffective as an opposition to the motion, and provided no grounds for its denial.
As we noted at the outset, the only issue before the court was whether it had sufficient evidence to vacate the dismissal on July 6. Plaintiffs missed a number of opportunities to request the trial court to either reconsider that decision or to oppose the summary judgment motion on its merits. Under the circumstances present in this record, we find the trial court did not abuse its discretion by vacating the dismissal.
III
DISPOSITION
The judgment is affirmed. Defendants are entitled to costs on appeal.
MOORE, J.
WE CONCUR:
RYLAARSDAM, ACTING P. J.
O'LEARY, J.