Judge: Laura A. Seigle, Case: 19STCV17968, Date: 2023-08-23 Tentative Ruling

Case Number: 19STCV17968    Hearing Date: August 23, 2023    Dept: 15

[TENTATIVE] ORDER RE REQUEST FOR JUDGMENT AND MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT

            On May 11, 2023, the court granted Defendant I-Ling Wu’s motion to dismiss the Second Amended Complaint pursuant to Code of Civil Procedure section 583.250.  The court stated in the May 11, 2023 minute order, among other things, that because Wu was added as a Doe defendant, the time to serve her with the complaint and summons began to run from the filing of the original complaint.  However, if Plaintiffs had sued Wu in a new action, the time to serve her with the complaint and summons would have run from the filing of the new complaint in the new action.  Therefore, the court dismissed Wu without prejudice.

            Also on May 11, 2023, in addition to the minute order, the court signed and entered an Order of Dismissal dismissing Wu without prejudice. 

            On May 24, 2023, Wu filed a memorandum of costs, and on May 30, 2023, she filed an amended memorandum of costs.  Plaintiffs did not file a motion to tax costs.

            On June 21, 2023, Wu lodged a proposed judgment.  On June 26, 2023, Plaintiffs filed an opposition to the request for judgment.  On July 13, 2023, Wu filed a proposed judgment including costs as the prevailing party. 

            A.        Request for Judgment with Cost Award

            Plaintiffs argues the language of the judgment is incorrect and Wu is not the prevailing party.  Wu argues she is the prevailing party because she was dismissed.

            “ ‘A defendant in whose favor a dismissal is entered is the prevailing party and is entitled to costs.  (C.C.P. 1032(a)(4).)  This is true where the plaintiff voluntarily dismisses or where the trial court orders an involuntary dismissal.  [Citations].’  (7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 92, p. 623.)  Defendant is entitled to costs regardless of whether the dismissal is with or without prejudice.  [Citations.]”  (Cano v. Glover (2006) 143 Cal.App.4th 326, 331.)  Because Wu was dismissed, she is the prevailing party.

            The costs listed on the amended cost memorandum are allowable except for the entries in Item 16 (d)-(h) for copies of excerpts of the trial transcript.  Under Code of Civil Procedure section 1033.5, subdivision (a)(9), costs of transcripts ordered by the court are allowable, but Defendant did not show the court ordered those copies of trial transcript excerpts.  Thus, the court awards $3,556.15 ($4,300.65 minus $744.50) in costs to Wu.  The request for costs added to the judgment is GRANTED.

            B.        Motion for Leave to File Third Amended Complaint

            On July 25, 2023, Plaintiffs file a motion for leave to file a third amended complaint to assert claims against Wu.  Plaintiffs argue that because the court dismissed Wu as a Doe defendant without prejudice, they can now file a third amended complaint adding her back in this case as a defendant.  Defendant argues that the signed order of dismissal of Wu constitutes a judgment pursuant to Code of Civil Procedure section 581d, and therefore it is too late to amend the complaint.  In reply, Plaintiffs argue that the court dismissed Wu without prejudice and said Plaintiffs could file another action against Wu if the statute of limitations had not run.

            Pursuant to Code of Civil Procedure section 581d, “[a]ll dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action and those orders when so filed shall constitute judgments and be effective for all purposes.”  On May 11, 2023, the court signed an order of dismissal of Wu, which was filed in this action.  Therefore the May 11, 2023 order constituted a judgment as to Wu.

            Once the trial court has entered judgment, it loses jurisdiction, except for ancillary matters like awarding fees and costs.  (Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 479 [“The entry of judgment ordinarily terminates a trial court’s jurisdiction to rule on the merits of a case, apart from ruling on a new trial motion, a motion to vacate the judgment or a similar motion”].)  The court no longer has jurisdiction to continue the litigation of this case.  Plaintiffs’ remedy is to file a new action against Wu, assuming the statute of limitations has not run.

            The motion for leave to file an amended complaint is DENIED.

            The moving party is to give notice.