Metropolitan News-Enterprise

 

Wednesday, December 19, 2018

 

Page 1

 

Fourth District Says Post-Dismissal Cost Orders Are Appealable

 

By a MetNews Staff Writer

 

The Fourth District Court of Appeal has departed from a prior case from this district in holding that an order awarding costs made after a voluntary dismissal without prejudice is appealable because it constitutes a final judgment.

The opinion by Presiding Justice Manuel A. Ramirez of Div. Two, filed Monday, comes in a case where Upland attorney Marc E. Grossman’s firm was representing another member of the bar, Beverly Jean Gassner of the same city, in her action to recover fees from a former client.

Gassner dismissed her case voluntarily without prejudice; San Bernardino Superior Court Judge Michael A. Sachs awarded costs to the defendant against both Gassner and Grossman.

Ramirez explained that while the order awarding costs was appealable, Grossman had not made a timely appeal. However, his other appeal, from an order denying a motion to vacate the costs order, was timely, was appealable, the jurist said, because the underlying order was void and the appeal was timely.

“The bulk of this opinion is devoted to appealability,” he noted, “because it poses a more difficult issue than do the merits.”

(In an unpublished portion of the opinion, Div. Two reversed the order as to Grossman because he was not a party to the case.)

Split in Authority

The presiding justice noted the split in authority created by Mon Chong Loong Trading Corp. v. Superior Court, a 2013 case from this district’s Div. Three, and Mesa Shopping Center-East, LLC v. O Hill, a 2014 case from Div. Three of his own district.

In Mong Chong Loong, then-Justice H. Walter Croskey (now deceased) cited Code of Civil Procedure §904.1(a)(1), which allows appeals from “a judgment, except an interlocutory judgment,” and §904.1(a)(2), which allows appeals from an order made after such final judgment.

He wrote:

“An order on a motion to tax costs is ordinarily ‘separately appealable as an order after final judgment.’…That is, an appeal may be taken from a postjudgment order….Here, however, there has been no judgment, only a dismissal, and the entry of dismissal by the clerk is a ‘ministerial, not a judicial, act, and no appeal lies therefrom.’…Therefore, the order taxing costs follows a non-appealable voluntary dismissal, and is similarly non-appealable.”

(In that case, the court nevertheless reached the merits of the appeal by using “its discretion to construe an appeal as a petition for writ of mandate.”)

Other View

In Mesa, Justice Raymond J. Ikola took note of  Mon Chong Loong and replied:

“In our view, the law has taken a wrong turn to the extent it suggests the court’s resolution of the O Hill Investors’ motion is not appealable. We agree that a voluntary dismissal entered by the clerk is (generally) not a judgment. We also agree that an order granting a motion to vacate a voluntary dismissal is not appealable as such because it allows the action to continue until entry of a final judgment occurs. But we conclude that a voluntary dismissal in conjunction with the postdismissal rulings made here are appealable as a judgment and orders attached thereto.”

He said:

“Common sense dictates that we forego a hypertechnical interpretation of section 904.1…

“We therefore conclude the court’s postjudgment orders and the underlying voluntary dismissal are appealable.”

Ramirez declared:

“In our view, Mesa is more persuasive than Mon Chong Loong. Mon Chong Loong jumped to the conclusion that a costs order after a voluntary dismissal without prejudice is appealable—if at all—only as a postjudgment order under Code of Civil Procedure section 904.1, subdivision (a)(2). While the vast majority of costs orders are entered after a final judgment and are therefore appealable on that theory, Mesa correctly recognized that a costs order may be appealable on some other theory, including, if it qualifies, as a final judgment.”

He went on to explain:

“A voluntary dismissal by the clerk without prejudice…is clearly not a judgment.…

“It follows that a costs order following a voluntary dismissal by the clerk without prejudice is not appealable as a postjudgment order under Code of Civil Procedure section 904.1, subdivision (a)(2). For the same reason, however, such a costs order is the final determination of the parties’ rights; hence, it is a judgment and appealable as such under Code of Civil Procedure section 904.1, subdivision (a)(1).”

The case is Gassner v. Stasa, 2018 S.O.S. 5998.

 

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