Judge: Michael Shultz, Case: 21CMCV00076, Date: 2022-09-01 Tentative Ruling

INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:

1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.

2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and

3. Serve notice of the Court's ruling on all parties entitled to receive service.

If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on. 

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Case Number: 21CMCV00076    Hearing Date: September 1, 2022    Dept: A

21CMCV00076 Anthony Martin, Samuel Martin v. Jarvis Martin

[TENTATIVE] ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS

This action arises from Defendant’s alleged failure to repay a loan extended to him by his father, Plaintiff, Samuel Martin. Plaintiff, Anthony Martin (“Anthony”), alleged that Defendant refused to return his personal property. On July 28, 2022, the court heard and granted Defendant’s motion for judgment on the pleading as to the first, second, third, fifth, and sixth causes of action as they were barred by res judicata because an earlier action on the same claims and issues were dismissed with prejudice (19CMCV00072 Jarvis Martin v. Samuel Martin, Jr.)

On August 5, 2022, Defendant moved for judgment on the pleading on Plaintiff Anthony’s claim for conversion for the alleged refusal to return Anthony’s personal property after Defendant evicted Anthony from the Fernrock residence. Complaint ¶¶ 15-16, 38. Plaintiff did not file an opposition. However, on August 23, 2022, Plaintiffs dismissed the entire action without prejudice.

On August 24, 2022, Defendant filed a “Notice of Non-Opposition Notwithstanding the Request for Dismissal” contending that the court retains jurisdiction to rule on the motion despite the dismissal. Defendant argues that Plaintiffs’ right to voluntarily dismiss is “cut off” by an impending dispositive motion. Plaintiff’s failure to oppose the motion made dismissal inevitable. Accordingly, Defendant argues he is entitled to an order granting the motion.

Plaintiff has the right to request dismissal with or without prejudice prior to the actual commencement of trial. Code Civ. Proc., § 581 subd. (c). The term “trial” is not restricted to jury or court trials on the merits but includes other procedures that “effectively dispose of the case.” Cole v. Hammond (2019) 37 Cal.App.5th 912, 921. A voluntary dismissal is ineffective if the court has made a public and formal indication of the legal merits of the case (such as by posting a tentative ruling on a pending dispositive motion) or in light of “some procedural dereliction” by the dismissing plaintiff that made dismissal "ineffective", such as by filing a dismissal after failing to timely oppose a dispositive motion. Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 200. In the latter case, the court has “continuing jurisdiction to hear and rule on the pending motion." Cravens v. State Bd. of Equalization (1997) 52 Cal.App.4th 253, 255 [Voluntary dismissal filed after opposition due but before the hearing on defendant’s motion for summary judgment held ineffective]; Cole v. Hammond (2019) 37 Cal.App.5th 912, 925–926 [Failure to provide any viable basis in opposition to a motion to dismiss rendered the granting of the motion a “mere formality,” precluding Plaintiff’s right to voluntarily dismiss the action]; Hartbrodt v. Burke (1996) 42 Cal.App.4th 168, 176 [“It follows that appellant cannot defeat respondents' motion for a terminating discovery sanction by filing a voluntary dismissal where statutory authority entitles the defense to a final judgment. The trial court properly rejected appellant's voluntary dismissal without prejudice.”].

Plaintiff’s opposition to Defendant’s motion was due on August 19, 2022 (nine court days before the hearing). Code Civ. Proc., § 1005(b). Plaintiff did not file a written opposition but filed a voluntary dismissal without prejudice after the opposition was due. Civil Procedure section 438 entitles Defendant to an order granting judgment on the pleading if the complaint fails to state facts sufficient to constitute a cause of action against defendant. Code Civ. Proc., § 438 subd. (c)(1)(B). Accordingly, Plaintiff’s voluntary dismissal is ineffective and does not deprive Defendant of its statutory right to seek judgment on the pleading.

Defendant has established that Anthony’s conversion claim is barred by res judicata. A small claims plaintiff is estopped from relitigating the same claim in superior court “where the record is sufficiently clear to determine that the issue was litigated and decided against plaintiff in the small claims action.“ Bailey v. Brewer (2011) 197 Cal.App.4th 781, 791

In its primary aspect, res judicata, or claim preclusion, prevents relitigation of the same cause of action previously decided on the merits in a second suit between the same parties or parties in privity with them. Central Delta Water Agency v. Department of Water Resources (2021) 69 Cal.App.5th 170, 206. Three elements must be established: (1) the present proceeding is on the same cause of action as the prior proceeding; (2) there was a final judgment on the merits; (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceedings. Id.

The court takes judicial notice of the court records in the small claims action demonstrating that Anthony filed a 2019 action for conversion of personal property allegedly taken by Defendant after he allegedly evicted Anthony from the Fernrock premises. RJN, Ex. 2, .pdf page 10, ¶ 3.a., .pdf page 14-15, Evid. Code, § 452(d). On March 19, 2019, the court entered judgment in favor of Defendant and against Anthony after a non-jury trial. RJN Ex. 3. Accordingly, Anthony’s identical claim for conversion asserted here against Defendant based on the same facts asserted is barred.

Based on the foregoing, the court strikes Plaintiffs’ request for dismissal filed on August 23, 2022, as it is improper and not in conformity with California law. Code Civ. Proc., § 436. Defendant’s Motion for Judgment on the Pleading as to the fourth cause of action for conversion is GRANTED. Code Civ. Proc., § 438. As this motion is granted on the merits under the principles of res judicata, dismissal is made with prejudice.  Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 214–215. [“… the Legislature has made it clear, and Supreme Court case law has recognized, that dismissals for procedural dereliction pursuant to Chapter 1.5 [discretionary and mandatory dismissals] for lack of prosecution are to be without prejudice.”]. Dismissals for want of prosecution are not on the merits and “therefore, does not operate as res judicata to a subsequent proceeding.” Mattern v. Carberry (1960) 186 Cal.App.2d 570, 572.