Friday, April 24, 2020
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Riverside-Based C.A. Panel Permits Dismissal After Opinion Is Issued
Justices Were Able to Take Action in Scrapping Feb. 27th Decision In Light of Emergency Order Extending Time Periods
By a MetNews Staff Writer
Div. Two of the Fourth District Court of Appeal yesterday took the unusual action, in response to a motion of the losing party for a dismissal, of vacating its opinion in the case.
Ordinarily, the Feb. 27 opinion would have become final as to the Court of Appeal after 30 days, stripping it of the power to take further action in the case. However, the Fourth District, with the permission of Chief Justice Tani Cantil-Sakauye, on April 9, issued an emergency order, based on the coronavirus epidemic, extending all time periods by 30 days, retroactively to March 19.
The initial opinion affirmed a judgment for the defendants in a malicious prosecution action. That judgment followed a granting of their anti-SLAPP motion.
The unpublished opinion by Justice Carol D. Codrington said that Jamieson Brown’s suit against Courtyard Partners-Palm Springs, L.P. for bringing an unlawful detainer action against him two years earlier arose from protected conduct and that the plaintiff could not show a probability of prevailing on the merits because the one-year statute of limitation had expired.
The Court of Appeal yesterday issued an order saying:
“The court has considered appellant’s motion for dismissal as well as respondents’ letter response. Opinion filed Feb 27, 2020 is vacated & court will file a new opinion dismissing the appeal pursuant to the request.”
That new opinion, by Codrington, declares:
“After we issued a tentative opinion, heard oral argument, and issued our final opinion, but before the remittitur issued, Brown moved to dismiss the appeal.
“An appellant may not dismiss an appeal as a matter of right….Rather, pursuant to California Rules of Court, rule 8.244(c)(2), ‘On receipt of a request or stipulation to dismiss, the court may dismiss the appeal and direct immediate issuance of the remittitur.’ (Italics added.) Thus, dismissal is discretionary. We grant the request, vacate our prior opinion, and dismiss the appeal.”
The opinion does not explain why the court exercised its discretion to scrap an opinion that had been filed.
The case is Brown v. Kimball, Tiery & St. John, LLP, E069422.
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