Metropolitan News-Enterprise


Friday, September 6, 2013


Page 1


Judge Dau Entered Order in Absence of Jurisdiction—C.A.


By a MetNews Staff Writer


Los Angeles Superior Court Judge Ralph Dau acted in the absence of jurisdiction when he granted the defendants’ discovery motions in a case which the plaintiff had dismissed with prejudice, the Court of Appeal for this district has ruled.

Presiding Justice Roger Boren of Div. Two wrote the opinion, filed Tuesday.

The appeals court treated the purported appeal of nonappealable orders by erstwhile plaintiff Mabel Ayala as a petition for an extraordinary writ, granted it, and directed that Dau’s order of May 30, 2012.

In that order, Dau compelled discovery responses by Ayala and payment of $760.50 in discovery sanctions, and granted leave for a cross complaint to be filed.

Boren wrote:

“A plaintiff generally has the right to dismiss an entire action prior to the commencement of trial….Neither the trial court nor the clerk may prevent entry of the dismissal….Upon the filing of a voluntary dismissal, the trial court loses jurisdiction to act in the case ‘except for the limited purpose of awarding costs and statutory attorney fees.’…All subsequent proceedings are void.”

Boren acknowledged that a voluntary dismissal is ineffective where the trial court has signaled which side is going to win. That does not apply in the present case, he said, explaining:

“At the time Ayala filed her request for dismissal, there was no formal indication that her lawsuit would fail, and therefore Ayala’s request for dismissal with prejudice was effective.

“Ayala’s filing of the request for dismissal thus prevented the trial court from ordering that Ayala pay defendants’ attorney fees in connection with the discovery motions….Although under the anti-SLAPP…statute…a trial court may award defendants their fees even after the plaintiff’s filing of a request for dismissal…, we find no similar authority for a postdismissal award of fees on a routine discovery motion.”

The case is Ayala v. Gutierrez, B243006. Jina A. Nam represented Ayala and there was no appearance for the respondent.


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