Judge: Stephen I. Goorvitch, Case: 20STCV48029, Date: 2024-07-12 Tentative Ruling

Case Number: 20STCV48029    Hearing Date: July 12, 2024    Dept: 82

Industrial Service Oil Company, Inc. v. California Department of

Toxic Substances Control

Case No. 20STCV48029

[Tentative] Order Denying Motion to Vacate Entry of Dismissal

INTRODUCTION

            Petitioner Industrial Service Oil Company, Inc. (“Petitioner”) filed a petition for writ of mandamus and complaint for declaratory relief on December 16, 2020.  Then, on April 2, 2024, Petitioner filed a request for dismissal without prejudice, which the Clerk’s Office processed as a ministerial function.  Now, Respondent California Department of Toxic Substances Control (“DTSC” or “Respondent”) moves for an order vacating the dismissal, arguing that Petitioner’s right to voluntary dismissal had lapsed because the trial had commenced.  Respondent asks this court to enter a judgment in its favor or dismiss the case with prejudice.  The court finds that the dismissal with properly entered because trial had not “commenced” as of April 2, 2024.  Therefore, the motion is denied. 

PROCEDURAL HISTORY

On December 16, 2020, Petitioner filed its verified petition for writ of mandamus and complaint for declaratory relief.  The petition challenged certain “Final Inspection Violation Scores” issued to Petitioner’s permitted hazardous waste facility on October 28, 2020, pursuant to Respondent’s Violation Scoring Procedure regulations (Cal. Code Regs. Title 22, §§ 66271.50 et seq.) (the “VSP Regulations”). 

The court (Beckloff, J.) held a trial setting conference on April 7, 2023.  The court set the hearing on the petition on April 10, 2024, and ordered Petitioner’s opening brief to be filed at least 60 days before the hearing date.  (See Court’s Minute Order, dated April 7, 2023.)  However, the court’s minute order noted that Petitioner would be filing an amended petition.  (Ibid.)    

            Beginning in September 2023, Petitioner’s counsel wrote to Respondent’s counsel regarding possible amendment of the petition “to respond to the recent actions by DTSC affecting ISOC’s facility.”  (Elliott Decl. ¶ 4.)  On January 8, 2024, about one month before the opening brief was due, Petitioner’s counsel provided Respondent’s counsel with a proposed amended petition and requested that Respondent stipulate to its filing.  (Ibid.)  On January 19, Respondent’s counsel informed Petitioner’s counsel that Respondent would not stipulate to the filing of an amended petition.  (Ibid.)

            On January 30, 2024, more than a week before the opening brief was due, Petitioner filed an ex parte application to set a hearing date on Petitioner’s motion for leave to file a first amended complaint and to continue trial.  The court (Beckloff, J.) denied the ex parte application and indicated that the parties could submit a stipulation to continue the trial date to a date in July 2024.  (See Court’s Minute Order, dated January 31, 2024.) 

Petitioner did not file an opening brief.  Respondent filed a one-page opposition asking the court to deny the writ because Petitioner did not file an opening brief or, in the alternative, dismiss the case with prejudice for lack of prosecution.  On April 2, 2024, about one week before the hearing on the petition, Petitioner filed a request for dismissal without prejudice.  The Clerk’s Office processed the request as a ministerial function.

DISCUSSION

            Notwithstanding the dismissal, the court has jurisdiction to rule on the instant motion because Respondent contends that the dismissal was not properly entered.  (See e.g. Goldtree v. Spreckels (1902) 135 Cal. 666, 673 [affirming trial court’s order cancelling the entry of dismissal by the clerk]; Tire Distributors, Inc. v. Cobrae (2005) 132 Cal.App.4th 538, 542 [“When a dismissal has properly been filed, the trial court loses jurisdiction to act in the case.”]; see also Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 784 [same].) 

            Reaching the merits of Respondent’s motion, the court finds that the request for dismissal was proper.  “A plaintiff has the right to dismiss a defendant or an entire action without prejudice before the commencement of trial.  (Code Civ. Proc., § 581, subds. (b), (c).)…. The right to dismiss is not unlimited, however. In addition to certain statutory limitations on that right, others have evolved judicially.”  (Tire Distributors, Inc., supra, 132 Cal.App.4th at 542.)  “The general rule is that a party may obtain a voluntary dismissal at any time prior to a ruling, or something tantamount thereto (i.e., a formal and public indication of the merits), on [a] dispositive motion.”  (Lewis C. Nelson & Sons, Inc. v. Lynx Iron Corp. (2009) 174 Cal.App.4th 67, 79.)

The courts have developed certain limitations on a plaintiff’s right to voluntary dismiss an action based on the courts’ construction of the term “commencement of trial.”  (Harris v. Billings (1993) 16 Cal.App.4th 1396, 1402.)  The term “trial” is not restricted to jury or court trials on the merits, but includes other procedures that effectively dispose of the case. (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 785.)  Commencement of trial is considered to have occurred if there has been either (1) “public and formal judicial expressions of the merits of a case in the context of a substantively dispositive proceeding” or (2) “some procedural dereliction by the dismissing plaintiff that made dismissal otherwise inevitable.” (Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 200, 202.)

In the instant case, there has been no “judicial expression of the merits.”  Nor was there any “procedural dereliction” that made dismissal “otherwise inevitable.”  The failure to file an opening brief does not mandate dismissal; it is discretionary.  “The court may construe the absence of a memorandum as an admission that the motion or special demurrer is not meritorious and cause for its denial . . . .”  (Cal. Rules of Court, rule 3.1113(a).)  Therefore, Respondent’s motion fails on the merits.  Respondent cites an appellate decision from over 100 years ago, which states: “In a proceeding for the writ of mandate affirmative allegations of the answer, if not demurrable, are to be taken as true unless they are countervailed by proof presented by the petitioner.”  (Vanderbush v. Board of Public Works of City of L.A. (1923) 62 Cal.App. 771, 775.)  This case does not divest the court of discretion.  Indeed, unlike Code of Civil Procedure section 437c, which governs motions for summary judgment, there is no statute or rule of court that makes it “inevitable” that a court would deny a petition or dismiss the case with prejudice based upon the failure to file an opening brief. 

It is worth noting that the court would not have denied the writ or dismissed the instant case with prejudice because the record reflects an intention to file an amended petition and good cause to do so.  At the trial setting conference on April 7, 2023, the court noted that an amended petition would be filed.  (See Court’s Minute Order, dated April 7, 2023.)  Beginning in September 2023, Petitioner’s counsel wrote to Respondent’s counsel regarding possible amendment of the petition “to respond to the recent actions by DTSC affecting ISOC’s facility.”  (Elliott Decl. ¶ 4.)  On January 8, 2024, about a month before the opening brief was due, Petitioner’s counsel provided Respondent’s counsel with a proposed amended petition and requested that Respondent stipulate to its filing.  (Ibid.)  In a declaration, Petitioner’s counsel explains the reasons Petitioner sought to amend the petition:

Following the filing of the ISOC I Complaint, DTSC undertook a number of administrative actions affecting ISOC’s facility, including: (1) the issuance of new Inspection Violation Scores for the facility based on alleged 2021-2023 violations post-dating the filing of the ISOC I Complaint; (2) communications between DTSC and ISOC stating the agency’s intent to pursue administrative enforcement against Plaintiff for alleged violations that pre-date Plaintiff’s acquisition of the facility and are outside the applicable five-year statute of limitations; and (3) DTSC’s imposition of third-party audit requirements on the facility and threatened enforcement thereof, among other actions. These developments occurred after the filing of the original Complaint, in some cases as late as fall of 2023, many months after the Court set the current hearing and briefing schedule in this matter. 

(Id. ¶ 3.)  Respondent’s counsel refused and indicated that he would oppose any motion to amend.  (Id. ¶ 4.)  On January 30, 2024, shortly before the opening brief was due, Petitioner’s counsel filed an ex parte application to set a hearing date on a motion for leave to file a first amended complaint and continue the trial, but the court denied the ex parte application.  (See Court’s Minute Order, dated January 31, 2024.)  The court suggested that the parties submit a stipulation to continue the trial date to afford sufficient time to hear the motion before the opening brief was due, but as discussed, Respondent’s counsel refused to do so.  Therefore, Petitioner filed a separate action on March 19, 2024, to address these subsequent administrative actions.  (See id. ¶ 6; see LASC Case No. 24STCV06917 [the “ISOC II” action].)  This record would not support denying the writ or dismissing the case with prejudice under these circumstances. 

            Nor is there any prejudice to Respondent.  Petitioner represents that “the ISOC II action does not re-allege Plaintiff’s challenges to the specific VSP scores at issue in ISOC I (though it references the earlier alleged violations and scoring actions for necessary background and context for the new claims.”  (Oppo. 3:6-8.)  Footnote 5 of ISOC II supports that statement:

“On December 16, 2020, Petitioner filed a Petition for Writ of Mandamus and Complaint for Declaratory Relief challenging the Final Inspection Violation Scores issued by the DRO in October 2020 for the ten-year period between January 1, 2009 to December 31, 2018. See Industrial Service Oil Co. v. Department of Toxic Substances Control, et al., Los Angeles County Superior Court Case No. 20STCV48029. Those scores are not challenged in this action.” 

(ISOC II at 11, fn. 5; see case file for LASC Case No. 24STCV06917.)  Respondent does not refute these arguments, only speculating that “ISOC may try to amend ISOC II to add the same claims set forth in ISOC I.”  (Reply, p. 7:12-13.)   

CONCLUSION AND ORDER

            Based on the foregoing, Respondent’s motion is denied.  Respondent’s counsel shall provide notice and file proof of service with the court.