Judge: William A. Crowfoot, Case: 19STCV17399, Date: 2022-09-13 Tentative Ruling

Case Number: 19STCV17399    Hearing Date: September 13, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On May 20, 2019, Plaintiff Osko Karagossian (“Plaintiff”) filed this action against Defendant Derek Povah (“Povah”), County of Ventura (“Ventura”), and Las Virgenes Unified School District (“Las Virgenes”) arising from a motor vehicle collision.  On September 16, 2019, Plaintiff filed the operative First Amended Complaint.  Povah and Las Virgenes filed separate answers on September 16, 2019, and October 21, 2019.  Povah has been represented throughout this litigation by Bretoi, Lutz & Stele (“BLS”) while Las Virgenes has been represented by Bordin Semmer LLP (“Bordin Semmer”). 

On February 2, 2022, at 12:02 p.m., Plaintiff filed a request for dismissal of the entire action with prejudice.  The clerk entered dismissal on the same date.  Also on the same day, at 1:30 p.m., Las Virgenes’ motion for terminating sanctions came on for hearing.  Plaintiff did not appear, the Court was not informed of the request for dismissal, and the motion was granted which dismissed Plaintiff’s action.

On February 15, 2022, Las Virgenes filed and electronically served a memorandum of costs seeking $5,385.49 in costs from Plaintiff for filing fees and the depositions of Plaintiff.  No motion to tax costs was filed.  A proposed judgment was filed on March 15, 2022.  It stated that judgment was “entered in favor of [Las Virgenes]” and awarded Las Virgenes costs in the same amount.  Plaintiff filed an objection to the proposed judgment on March 24, 2022. 

At a status conference on June 20, 2022, this hearing was set so that the parties could brief the Court on whether defendant Las Virgenes’ proposed judgment and requests for costs was appropriate. 

II.          DISCUSSION

First, Plaintiff argues that judgment should not be entered in favor of Las Virgenes because the request for dismissal with prejudice was predicated on a settlement agreement.  Plaintiff settled the action with Povah, but Las Virgenes was not involved in the settlement negotiations.  As noted above, Povah and Las Virgenes are represented by separate counsel.  Without Las Virgenes’ involvement or participation in the settlement negotiations, Las Virgenes did not discharge its right to seek costs against Plaintiff in exchange for the dismissal. 

Second, the Court considers whether Las Virgenes is entitled to a judgment in its favor and if Plaintiff’s request for dismissal deprived it of jurisdiction to rule on Las Virgenes’ motion for terminating sanctions. Section 581(c) provides a plaintiff with the right to dismiss a complaint “with or without prejudice prior to the actual commencement of trial.”  (Code Civ. Proc., § 581, subd. (c).)  After the actual commencement of trial, a court’s dismissal of the complaint at plaintiff’s request is with prejudice unless all affected parties consent to a dismissal without prejudice or a showing of good cause.  (See Code Civ. Proc., § 581, subd. (e).)  

Las Virgenes argues that Plaintiff’s voluntary dismissal was ineffective because the Court had already posted its ruling on Las Virgenes’ pending motion for terminating sanctions.  The “mere formality” test set forth by the Court of Appeal in Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 200 (“Franklin”), is as follows: “When the dismissal could be said to have been taken (a) in the light of a public and formal indication by the trial court of the legal merits of the case, or (b) in the light of some procedural dereliction by the dismissing plaintiff that made dismissal otherwise inevitable, then the voluntary dismissal is ineffective.”  The Franklin Court embarked on a detailed discussion of cases discussing when a plaintiff’s statutory right to dismiss ends.  One such case in its discussion, Hartbrodt v. Burke (1996) 42 Cal.App.4th 168 (“Hartbrodt”), presents similar circumstances as this action, as it involves a dismissal prior to a hearing on a terminating sanctions order.  (Franklin, 148 Cal.App. 4th at pp. 205-207; 216.)  The Franklin Court acknowledged that Hartbrodt did not fit neatly into the “mere formality” test because there was no tentative ruling or indication that dismissal was inevitable, and disapproved of using “essential equities” alone as the benchmark for assessing when the statutory right to dismiss ends.  Yet, its discussion of Hartbrodt is helpful because it reminds the reader that a dismissal pursuant to terminating sanctions is res judicata and therefore, involves the legal “merits” of the case.  (Franklin, supra, 148 Cal.App.4th at p. 216 [citing Kahn v. Kahn (1977) 68 Cal.App.3d 372.)  In light of the public posting of the tentative ruling on the morning of February 2, 2022, Plaintiff’s failure to oppose the motion (or appear at the hearing), and the res judicata nature of terminating sanctions, the Court concludes that Plaintiff’s right to voluntarily dismiss his case had been cut off and that his request for dismissal was ineffective.  Accordingly, Las Virgenes is entitled to a judgment in its favor. 

Third, Plaintiff argues that costs should not be awarded to Las Virgenes because it is not the prevailing party.  Plaintiff cites to Civil Code section 1717(b)(2) as authority that in a case that has been dismissed pursuant to settlement there is no prevailing party.  But this provision is inapplicable because this was not an action on a contract.  Instead, the Court looks to § 1032(a)(4), which defines a “prevailing party” as “the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.”  (Code Civ. Proc., § 1032(a)(4).) 

Here, Las Virgenes is considered the “prevailing party” based on two of the definitions provided in section 1032: (1) it obtained a dismissal in its favor and (2) Plaintiff did not recover anything from Las Virgenes because the settlement was with Povah.  As for the costs that Las Virgenes can recover, the Court finds that the memorandum of costs was timely filed and that Plaintiff’s objections are not only untimely, but without merit.  Plaintiff claims that $110 of the costs are improperly included because the “scheduling attorney” is Christina Toroyan of BLS.  However, the invoice also shows that it was Bordin Semmer that was billed.  Accordingly, Plaintiff’s untimely request to tax this cost is denied. 

III.        CONCLUSION

The Court OVERRULES Plaintiff’s objections to the proposed judgment submitted by Las Virgenes on March 15, 2022.  Judgment is to be entered in favor of Las Virgenes and Las Virgenes is entitled to recover costs in the amount of $5,385.49 from Plaintiff. 

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.