Judge: Melissa R. Mccormick, Case: Cook v. Cook, Date: 2022-11-10 Tentative Ruling

Defendant Kenneth A. Cook’s Motion to Dismiss

Defendant Kenneth A. Cook moves for an order dismissing this case with prejudice.  The court exercised its discretion to consider defendant’s late-filed reply.  For the following reasons, defendant’s motion is denied.

The court dismissed this case without prejudice on August 30, 2021 when plaintiff Kirsten B. Cook failed to appear for trial.  The court issued a signed order of dismissal the same day, which was filed in the court file and served on the parties by the clerk.  See ROA Nos. 495 & 496. 

Civil Procedure Code section 581d states:  “A written dismissal of an action shall be entered in the clerk’s register and is effective for all purposes when so entered.  All 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, and the clerk shall note those judgments in the register of actions in the case.”  An “[o]rder of dismissal, signed by the trial court and entered by the court clerk, constitutes a judgment under Code of Civil Procedure section 581d.”  Moorer v. Noble L.A. Events, Inc. (2019) 32 Cal.App.5th 736, 741 n.3.

Defendant’s arguments that the court can and should modify or amend the August 30, 2021 signed order of dismissal to a dismissal with prejudice are not persuasive legally or factually.

Defendant also requests an award of costs.  Defendant’s notice of motion, however, does not state defendant seeks a costs award.  See Cal. R. Ct. 3.1110(a).  Defendant’s request for an award of costs is denied without prejudice to defendant filing and serving a motion for costs should defendant desire to do so.

Plaintiff’s request for judicial notice of Exhibits B and C is denied.  It is not necessary to seek judicial notice of documents in the court file for this case.  Plaintiff’s request for judicial notice of Exhibit E is granted, although its relevance to the instant motion is unclear.  The court further notes that a court may take judicial notice of the existence of a document in a court file, including the truth of results reached, but a court may not take judicial notice of the truth of hearsay statements in decisions and court files.  Richtek USA, Inc. v. UPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 658. 

Defendant’s requests in his reply that the court vacate or waive previously-imposed sanctions and make other orders regarding the previously-imposed sanctions are denied.  

Plaintiff’s evidentiary objections were not material to the disposition of the motion.

Clerk to give notice.