Filed 7/24/19
                CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                   SECOND APPELLATE DISTRICT
                          DIVISION FOUR



GREGORY A. COLE,                          B292331

       Plaintiff and Respondent,          (Los Angeles County
                                          Super. Ct. No. BC466925)
       v.

BETTY HAMMOND et al.,

       Defendants and Appellants.



     APPEAL from an order of the Superior Court of
Los Angeles County, Maria E. Stratton, Judge. Reversed and
remanded with instructions.
     Solomon T. Harris for Defendants and Appellants.
     Gieleghem Law Office and Neil Gieleghem for Plaintiff and
Respondent.




*     Pursuant to California Rules of Court, rules 8.1100 and
8.1110, this opinion is certified for publication with the exception
of part I of the Discussion section.
                          INTRODUCTION
       In a prior action, Neil Gieleghem and respondent Gregory
Cole, both attorneys, obtained a $500,000 judgment against
Anthony Sheen, a landlord, based on unpaid fees for legal
services they rendered to Sheen. In satisfaction of that
judgment, Cole and Gieleghem obtained an assignment of rent
from Sheen for a residential property.
       Appellants Betty and Ruth Hammond (the Hammonds)
were Sheen’s tenants. Cole and Gieleghem demanded that the
Hammonds pay their rent directly to them pursuant to the
assignment. The Hammonds refused, and Cole sued, alleging
breach of contract and related claims. Gieleghem appeared as
Cole’s attorney in the lawsuit.
       A few months after the initiation of the lawsuit in 2011, the
Hammonds began paying their rent to Cole and Gieleghem.
After the parties conducted some initial discovery, the case
languished for several years. In January 2018, the Hammonds
moved for mandatory dismissal of the action for failure to bring
the case to trial within five years, pursuant to Code of Civil
Procedure section 583.360.1 A mandatory dismissal would be
considered a determination on the merits entitling the prevailing
party to attorney fees under Civil Code, section 1717. However,
at the hearing on the motion, Cole sought to voluntarily dismiss
the case without prejudice pursuant to section 581, subdivision
(b)(1). The court granted Cole’s oral motion and dismissed the
case. The court subsequently denied the Hammonds’ motion to
vacate the dismissal. This appeal followed.



      All further statutory references are to the Code of Civil
      1

Procedure unless otherwise indicated.




                                 2
       The parties dispute whether this appeal is timely. We
conclude that it is. Substantively, the Hammonds contend the
trial court erred in granting Cole’s motion for voluntary
dismissal, arguing that they had the right to a mandatory
dismissal and the resulting attorney fees. We agree and
therefore reverse and remand for further proceedings.
           FACTUAL AND PROCEDURAL HISTORY
I.     Underlying Dispute
       The Hammonds are elderly sisters who rented a residence
on South Spaulding Avenue in Los Angeles, California (the
Spaulding property). They originally signed a monthly rental
agreement in 2001 with owner Dolores Quinlock Sheen. After
she died, the Spaulding property became an asset of a trust (the
Sheen trust), for which Anthony Sheen served as the trustee.
       As trustee, Sheen was involved in multiple probate
lawsuits that arose out of disputes related to the trust estate.
Cole and Gieleghem provided legal services to Sheen in
connection with the probate litigation. In January 2009, Cole
and Gieleghem sued Sheen for unpaid attorney fees. That
matter, Cole v. Sheen (LASC Case No. LC084204) (the fees
action), resulted in a judgment against Sheen and in favor of Cole
and Gieleghem for almost $500,000.
       On July 26, 2011, the court in the fees action granted an ex
parte application submitted by Cole and Gieleghem ordering
Sheen to “assign immediately to Judgment Creditors any and all
interest the Judgment Debtor has in, and any payments made in
connection with, the following assets of the Sheen Trust to the
extent necessary to satisfy” the judgment against Sheen (the
assignment order). As relevant here, the court ordered Sheen to




                                 3
assign “[a]ll rents from the tenants” of the Spaulding property,
starting July 1, 2011.
       Gieleghem notified the Hammonds of the assignment order
in a letter dated July 26, 2011. He further stated that under the
assignment order, the Hammonds were “legally required to pay
all rents . . . to Judgment Creditors, rather than to the
Trustee/landlord.” The Hammonds contend they responded by
asking Cole and Gieleghem for verification of their right to
receive the rent, but that request was refused. The Hammonds
also contacted Sheen and his attorney for instructions on how to
proceed.
       The parties do not dispute that at the end of July 2011, the
Hammonds paid their August rent of $1,400 to Wells Fargo (as a
purported superior lienholder) at the direction of Sheen’s
attorney. The following two months, the Hammonds paid their
rent to the Sheen trust, at Sheen’s direction. From November
2011 onward, they paid their rent to Cole and Gieleghem.
II.    Cole’s Lawsuit Against the Hammonds
       After the Hammonds failed to pay their August 2011 rent
to Cole and Gieleghem, Cole filed the instant lawsuit on August
4, 2011, alleging claims against the Hammonds for breach of
contract and common counts. Gieleghem appeared on the
complaint as the attorney of record for Cole, not as a party.2 In
the complaint, Cole alleged that the rents on the Spaulding
property were assigned to him pursuant to the assignment order,
that the Hammonds were given notice of that order at the time,


      2 In response to the Hammonds’ claim that he was an
indispensable party, Gieleghem asserted that he assigned his
interest in the judgment at issue to Cole three days before filing
this lawsuit.




                                 4
but they “failed and refused to pay said rents to Cole.” He alleged
damages of $495,025, the full amount of the judgment against
Sheen in the fees action.
       The Hammonds, in propria persona, filed a general denial,
contending that their “contract is with the landlord,” and
“[u]nless Court tells us otherwise payment goes to landlord.”
       In September 2011, Cole filed a notice of related case,
listing the fees action as potentially related to the instant case.
The court issued a minute order relating the cases on November
3, 2011. The court noted that the fees action was previously
related to the probate case, with the latter designated as the lead
case. The court found that the current case against the
Hammonds was “an action to enforce the same order” at issue in
the fees action. Thus, the court concluded that the cases were
related within the meaning of California Rules of Court, rule
3.300,3 “since the claims arise out of an order issued by the
probate court and concern the same claim against Trust
property.”
       The parties began discovery. Cole deposed the Hammonds
in late 2011 and conducted a physical inspection of their unit in
April 2012.4 In January 2013, Cole filed a substitution of
attorney, stating that he would represent himself. Cole took no
further action in this matter until 2018, after the Hammonds
filed the motion giving rise to the instant appeal.
III. Motion to Dismiss
       In January 2018, the Hammonds filed a motion to dismiss
for failure to bring the matter to trial within five years, pursuant

      3 All further references to court rules are to the California
Rules of Court unless otherwise indicated.
      4 The Hammonds retained counsel in October 2011.




                                  5
to section 583.360. They pointed out that the case had been
pending since August 2011, no actions had been taken since early
2013, and no trial date was set. They also declared that the
parties had not stipulated to extend the five-year deadline, and
the case had never been stayed. The Hammonds therefore
argued that dismissal was mandatory under section 583.360.
The motion was set for hearing on March 28, 2018.
       On March 15, 2018, Cole filed an opposition to the motion
to dismiss, with Gieleghem purporting to act as Cole’s attorney.
In the opposition, Cole argued that appeals filed in the related
cases operated to stay all of the cases related to the Sheen trust,
including this case. Cole’s motion included a list of nine appeals,
“at least four (4)” of which “were pending during part of the time
period at issue on Defendants’ Motion.” The four purportedly
relevant appeals listed by Cole included one from the fees action
and three from the probate litigation. Cole asserted that stays in
those cases operated to toll the expiration of the five-year period
in this case.
       The Hammonds filed their reply on March 21, 2018. They
objected that the opposition was untimely and that Gieleghem
was no longer counsel of record. They also argued that none of
the appeals operated to stay their case. Moreover, they noted
that only one of the listed appeals was even “superficially related”
to the instant case and would not allow Cole to avoid the
application of the five-year rule.
       Cole appeared without counsel at the March 28, 2018
hearing.5 At the start of the hearing, Cole told the court that he


      5Cole did not offer an explanation at the hearing for his
counsel’s failure to appear, nor did he request to represent
himself despite filing an opposition brief through counsel.




                                 6
wanted to file a voluntary request for dismissal of the case. The
court suggested that Cole “make an oral motion and I will grant
it.” After Cole confirmed his desire to “voluntarily dismiss this
action,” the court stated it was granting Cole’s motion and
dismissing the case without prejudice. Counsel for the
Hammonds objected that the dismissal was without prejudice
and noted that the “court should be concerned about abuse of
process.”
       There is no record of a written order entered as a result of
this hearing, or any notice of entry of such an order served on the
Hammonds. Instead, Cole submitted a form request for
voluntary dismissal without prejudice on March 28, 2018. The
form was signed by Cole (not Gieleghem). The request was
served on the Hammonds on March 28, 2018. The dismissal was
entered and filed by the court on May 8, 2018.
IV. Motion to Vacate Prior Order of Dismissal
       On May 9, 2018, the Hammonds filed a motion to “vacate,
set aside, and correct the court’s March 28, 2018 – announced
[sic] order granting plaintiff’s request to dismiss this case.” They
argued that they were entitled to attorney fees under Civil Code,
section 1717, pursuant to the prevailing party provision in their
lease and that Cole’s oral motion to dismiss was an attempt to
avoid those fees. Further, they contended that they were entitled
to mandatory dismissal and that Cole therefore no longer had the
right to voluntarily dismiss his case.


Unsurprisingly, given the shifting appearances between Cole and
Gieleghem in this case, the court may have incorrectly believed
Cole was counsel rather than a party, as the judge remarked
during the hearing that Cole had to submit a filing electronically
“because you’re counsel.” Cole did not correct this statement.




                                 7
       Gieleghem, once again appearing as counsel for Cole, filed
an opposition to the motion on May 24, 2018. Cole argued that
the motion was “mis-captioned” as a motion to vacate, and was
instead an improper motion for reconsideration that did not meet
the requirements of section 1008. Specifically, he contended the
motion was untimely and did not set forth any new facts or law
justifying reconsideration. He also asserted that he had “an
absolute right to dismiss the case” and requested sanctions
against the Hammonds and their counsel. He also contended
that he dismissed the case (in 2018) because “his litigation
objectives had been met” – specifically, once the Hammonds
started paying the rent to him (in 2011), “there was no need to
continue to actively litigate the case.”
       In their reply, the Hammonds argued that their motion was
proper as a request for the court to vacate and correct the
judgment pursuant to sections 663 and 473, subdivision (d).
They also argued that the motion was timely under section 1008,
as they had never been served written notice of entry of the
court’s March 28, 2018 order, and was based on new facts and
circumstances given Cole’s oral motion for voluntary dismissal at
the hearing on their motion for mandatory dismissal. In
addition, they pointed out that Cole failed to address their
principal argument that their right to mandatory dismissal cut
off his right to voluntarily dismiss the case.
       Gieleghem appeared as counsel for Cole at the hearing on
the motion to vacate, on June 6, 2018. Defense counsel objected
to his appearance. Gieleghem stated that he was counsel of
record “because I filed pleadings in this case, in fact, the
opposition to this motion.” The court accepted Gieleghem’s
statement that he was “now in for all purposes.”




                               8
       The court denied the Hammonds’ motion in a written
ruling on June 13, 2018. The court concluded there were
insufficient grounds “to either vacate or reconsider defendants’
previous motion to dismiss. Plaintiff’s voluntary dismissal
without prejudice was not precluded by defendants’ pending and
un-decided motion to dismiss.” The court found that “[i]n reality,
defendants are moving for reconsideration” under section 1008,
but that they “failed to show new or different facts,
circumstances, or law.
       Further, the court rejected the Hammonds’ argument that
they had a superior right to mandatory dismissal. The court cited
a line of cases it read as holding that a plaintiff retained a right
to dismiss the action in the face of a pending dispositive motion,
before any ruling thereon, as long as the plaintiff did so “for a
valid independent reason” and not as a “tactical ploy.” The court
continued, “When this court heard defendant’s [sic] motion to
dismiss on March 28, 2018, the court had not issued a tentative
ruling or any sort of disposition. That lack of ruling is important
in determining this motion to vacate, set aside, or correct.
Plaintiff was not precluded from moving for a voluntary dismissal
without prejudice. Had the court issued some sort of ruling,
plaintiff would then have been cutoff.” The court also denied
Cole’s request for sanctions. The court ordered Cole to submit a
proposed order within five court days.
       The court signed the order submitted by Cole on June 27,
2018. Cole served a notice of entry of order on the Hammonds on
July 1, 2018. The Hammonds filed their notice of appeal on
August 30, 2018.




                                 9
                           DISCUSSION
      The parties raise two issues on appeal. First, Cole asserts
that the appeal is untimely and moves to dismiss it on that basis.
Second, the Hammonds argue the trial court erred in granting
Cole’s motion for voluntary dismissal and denying their motions
for mandatory dismissal and to vacate the prior order. We agree
with the Hammonds that the appeal is timely and, substantively,
that the trial court erred. We therefore reverse.
I.    Timeliness of the Appeal
      A.     Background
      Our analysis of the timeliness issue requires a brief
recitation of the convoluted procedural history leading to the
Hammonds’ appeal.
      At the March 28, 2018 hearing on the Hammonds’ motion
for mandatory dismissal, the trial court granted Cole’s oral
motion for voluntary dismissal and ordered the case dismissed
without prejudice. There is no evidence in the record that the
court entered a written order of dismissal or that notice of entry
was served on the Hammonds. Instead, on the same day, Cole
submitted to the clerk a form request for voluntary dismissal
without prejudice.6 That dismissal was entered and filed by the


      6Although we need not reach this issue in resolving the
Hammonds’ appeal, we note that they challenge the validity of
Cole’s oral motion to dismiss as well as his subsequent form
request based on several purported deficiencies. First, Cole
appeared on his own behalf, sought a voluntary dismissal, and
then filed the form request himself, despite the reappearance of
Gieleghem as his counsel in filing the opposition to the motion to
dismiss a few weeks prior. (See §§ 284, 285, 581, subd. (j).)
Second, in his form request for dismissal, Cole checked the box
indicating he was filing as counsel, rather than as a party, and




                                10
clerk on May 8, 2018. Once again, there is no record that the
Hammonds were served with notice of entry of this dismissal.
      The court did enter a written order denying the
Hammonds’ motion to vacate the voluntary dismissal on June 27,
2018. Cole served the Hammonds with notice of entry of that
order on July 1, 2018.7
      In their notice of appeal, filed August 30, 2018, the
Hammonds indicated that they were appealing from the following
orders: (1) the March 28, 2018 order granting Cole’s motion to
dismiss; (2) the May 8, 2018 entry of voluntary dismissal; and (3)
the July 1, 2018 notice of entry of order denying the Hammonds’
motion to vacate.
      Cole filed a motion to dismiss the appeal, incorporating by
reference the argument from his respondent’s brief that the
appeal was untimely under rule 8.108. The Hammonds opposed
the motion and also requested oral argument on this issue. We
deferred the ruling on the timeliness of the appeal to the panel.
On July 3, 2019, we sent a letter to the parties directing them to
focus their presentation during oral argument on the substantive
issue in the appeal.




similarly signed the proof of service declaring that he was “not a
party to the within action.” Cole did not respond to these issues
in his briefing on appeal.
       7 The Hammonds contend that the operative date should be

July 2, 2018, the date this notice of entry was filed, rather than
July 1, the date reflected on the proof of service. The deadlines
under both rule 8.104 and 8.108 run from the date of service.
Therefore, the operative date was July 1, 2018, the date the
notice of entry was served on the Hammonds.




                                11
B.      Analysis
        “Compliance with the time for filing a notice of appeal is
mandatory and jurisdictional. [Citation.] If a notice of appeal is
not timely, the appellate court must dismiss the appeal.”
(Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th
579, 582; see also rule 8.104(b) [“[N]o court may extend the time
to file a notice of appeal. If a notice of appeal is filed late, the
reviewing court must dismiss the appeal.”].)
        Rule 8.104(a)(1) contains the applicable time period for
filing a notice of appeal. It provides that a notice of appeal must
be filed “on or before the earliest of . . . (B) 60 days after the party
filing the notice of appeal serves or is served by a party with a
document entitled ‘Notice of Entry’ of judgment or a filed-
endorsed copy of the judgment, accompanied by proof of service;
or (C) 180 days after entry of judgment.” For purposes of these
deadlines, the word “‘judgment’ includes an appealable order if
the appeal is from an appealable order.” (Rule 8.104(e).)
        Cole argues that the applicable date for calculating the
deadline to appeal is July 1, 2018, the date he served the notice of
entry of the court’s order denying the motion to vacate. He
further acknowledges that “if calculated from that July 1, 2018
date, an appeal filed on August 30, 2018 would be timely” under
rule 8.104(a)(1)(B). He contends, however, that instead of the
standard 60-day deadline under this rule, the Hammonds had
only 30 days to appeal from the court’s June 27, 2018 order.
Relying on rule 8.108(e)(1), he argues that “[w]hen a party files a
valid motion for reconsideration, and the court denies the same,
the deadline for appeal is 30 days (not 60 days).” He further
claims the result would be the same if the Hammonds’ motion
were construed as a motion to vacate, citing rule 8.108(c).




                                  12
       This argument is meritless. Rule 8.108 expressly operates
to extend the time to appeal, not limit it. Thus, rule 8.108(c)
provides: “If, within the time prescribed by rule 8.104 to appeal
from the judgment, any party serves and files … a valid motion [
] to vacate the judgment, the time to appeal from the judgment is
extended … until the earliest of: (1) 30 days after the superior
court clerk or a party serves an order denying the motion or a
notice of entry of that order….” Rule 8.108(e) applies the same
language to motions to reconsider an appealable order. Cole also
ignores the plain language of rule 8.108(a): “This rule operates
only to extend the time to appeal otherwise prescribed in rule
8.104(a); it does not shorten the time to appeal. If the normal
time to appeal stated in rule 8.104(a) is longer than the time
provided in this rule, the time to appeal stated in rule 8.104(a)
governs.”
       Cole concedes that the Hammonds filed their appeal within
60 days of the service of notice of entry on July 1, 2018. The
appeal is timely under the 60-day limit in rule 8.104(a)(1)(B).8
The prior dismissal orders of March 28 and May 8, 2018 as the
underlying appealable orders. (See Mesa Shopping Center-East,
LLC v. O Hill (2014) 232 Cal.App.4th 890, 898 [holding that
voluntary dismissal and order denying motion to vacate dismissal


     8  We also reject Cole’s suggestion that this court’s prior
denial of a writ petition filed by the Hammonds as untimely
somehow operates to bar this appeal as well. The Hammonds
filed their petition for writ of mandate on September 24, 2018.
We denied that petition as untimely, as it was filed more than 60
days after the July 1, 2018 service of the notice of entry. Of
course, the notice of appeal at issue here was filed almost a
month earlier, on August 30, 2018, and therefore does not suffer
from the same defect.




                               13
were “appealable as a judgment and orders attached thereto”];
see also § 581d [dismissals ordered by the court must be by
written order and constitute a judgment when filed].) The
Hammonds were not served with notice of entry of either order;
thus the time to appeal runs 180 days from the date of entry.
(Rule 8.104(a)(1); see also Carmel, Ltd. v. Tavoussi (2009) 175
Cal.App.4th 393, 399 [requiring service of notice of entry of the
order “as contemplated by the rules governing the timeliness of
appeals”].)
       Because the Hammonds filed their appeal within 180 days
after entry of the earliest order, on March 28, 2017, as well as
within 60 days of the service of a notice of entry on July 1, 2018,
that appeal was timely under rule 8.104(a). Thus, the extension
provisions of rule 8.108 are inapplicable. Cole’s motion to dismiss
is therefore denied.
II.    Court Order Granting Voluntary Dismissal
       The Hammonds contend that their right to a mandatory
dismissal for lack of prosecution prevails over Cole’s right as a
plaintiff to a voluntary dismissal and therefore that the trial
court erred in granting Cole’s motion to dismiss and denying
theirs. We agree.
       Our review is principally one of the application of law to
the facts, and is therefore de novo. (See Zapanta v. Universal
Care, Inc. (2003) 107 Cal.App.4th 1167, 1171; Groth Bros.
Oldsmobile, Inc. v. Gallagher (2002) 97 Cal.App.4th 60, 65.) We
review any factual findings by the trial court for substantial
evidence. (See Bowers v. Bernards (1984) 150 Cal.App.3d 870,
873-874.)
       A plaintiff’s right to voluntary dismissal is governed by
section 581, subdivision (b)(1): “An action may be dismissed in




                                14
any of the following instances. . . . With or without prejudice,
upon written request of the plaintiff to the clerk, filed with
papers in the case, or by oral or written request to the court at
any time before the actual commencement of trial.”
       But “[t]he right of a plaintiff to voluntarily dismiss an
action before commencement of trial is not absolute.” (Harris v.
Billings (1993) 16 Cal.App.4th 1396, 1402.) There are statutory
exceptions to a plaintiff’s right of voluntary dismissal, and “other
limitations have evolved through the courts’ construction of the
term ‘commencement of trial.’” (Ibid.) The meaning of 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
(Wells).)
       One such disposition is the defendant’s right to dismissal
due to a plaintiff’s failure to prosecute the case. Section 583.310
requires that “[a]n action shall be brought to trial within five
years after the action is commenced against the defendant.” A
defendant’s right to dismissal after expiration of the five-year
period is set forth in section 583.360, which provides: “(a) An
action shall be dismissed by the court on its own motion or on
motion of the defendant, after notice to the parties, if the action is
not brought to trial within the time prescribed by this article. [¶]
(b) The requirements of this article are mandatory and are not
subject to extension, excuse, or exception except as expressly
provided by statute.” “Thus, unless some specified exception
applies, a trial court has a mandatory duty to dismiss an action
and a defendant has an absolute right to obtain an order of
dismissal, once five years has elapsed from the date the action




                                 15
was commenced.” (M&R Properties v. Thomson (1992) 11
Cal.App.4th 899, 902–903 (M&R).)
       The issue, then, is to ascertain the point at which a plaintiff
loses the right to voluntarily dismiss a case in the face of a
defendant’s motion for mandatory dismissal under section
583.360. We find the discussion in Franklin Capital Corp. v.
Wilson (2007) 148 Cal.App.4th 187 (Franklin) instructive. In
Franklin, the court reviewed an exhaustive list of cases
addressing the issue of “when—and when not—a plaintiff’s
statutory right to dismiss pursuant to section 581, subdivision
(b)(1) is cut off by the presence of some impending ‘dispositive’
procedure.” (Id. at p. 194.) To harmonize the results, the court
adopted a “mere formality” test. Under that test, a voluntary
dismissal is ineffective 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” (Id. at p. 200, 202.)
       Under the first prong of this test, therefore, a plaintiff’s
voluntary dismissal would be valid if, for example, it was filed
while a motion for summary judgment was pending but the court
had not yet issued a tentative or final ruling. (See, e.g., Zapanta
v. Universal Care, Inc., supra, 107 Cal.App.4th at pp. 1173–1174.)
The plaintiff’s right to dismiss would be cut off, however, if the
court had issued a tentative or final ruling on a dispositive
motion. (See Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th
765 [adverse tentative summary judgment ruling]; Groth Bros.
Oldsmobile, Inc. v. Gallagher (2002) 97 Cal.App.4th 60 [tentative
ruling to sustain demurrer without leave to amend].)




                                 16
       Under the second prong of the test, the cases considered
instances of “legal inevitability of dismissal based on dispositive
procedural inaction by the plaintiff (like not filing opposition to a
summary judgment motion or not bringing the case to trial in five
years).” (Franklin, supra, 148 Cal.App.4th at p. 201; see also
Cravens v. State Bd. of Equalization (1997) 52 Cal.App.4th 253
[plaintiff not permitted to dismiss one day prior to hearing on
summary judgment motion where plaintiff failed to oppose the
motion]; Miller v. Marina Mercy Hospital (1984) 157 Cal.App.3d
765, 770 [plaintiffs’ right to dismiss terminated after defendants
notified them of deemed admissions effectively disposing of the
case].)
       Having distilled the relevant test, the Franklin court
turned to the facts before it. There, after plaintiff’s counsel failed
to appear at a mandatory settlement conference, the trial court
issued an order to show cause regarding “Dismissal and/or
sanctions.” (Franklin, supra, 148 Cal.App.4th at p. 191.) Before
the hearing on the order to show cause, the plaintiff filed a
voluntary dismissal without prejudice. At the hearing, the court
entered a dismissal with prejudice and denied the plaintiff’s
subsequent motion to vacate. (Id. at p. 192.) On appeal, the
court found that the pending hearing did not cut off the plaintiff’s
right to voluntarily dismiss the case, as there had been no
indication of the trial court’s ruling and it was not inevitable that
the court would dismiss the case as a result of the order to show
cause. (Id. at p. 209.)
       The Franklin court also cited to M&R, supra, 11
Cal.App.4th 899, which involved the five-year rule at issue here.
In M&R, the defendants filed a motion to dismiss the case for
failure to bring the matter to trial within five years. (Id. at p.




                                 17
901.) The plaintiffs filed a request for voluntary dismissal after
the court issued a tentative ruling granting the motion and after
the time for oral argument had expired, but before the dismissal
order had been filed. (Ibid.) The court noted that, under section
583.360, “unless some specified exception applies, a trial court
has a mandatory duty to dismiss an action and a defendant has
an absolute right to obtain an order of dismissal, once five years
has elapsed from the date the action was commenced.” (Id. at p.
903.) As such, the court rejected the plaintiffs’ contention that
their right to obtain a voluntary dismissal was “superior to
defendants’ right to mandatory dismissal,” declining “to balance
the competing rights in such a fashion as to render a defendant’s
motion for mandatory dismissal pointless, and the ruling of the
court on that motion a nullity.” (Id. at pp. 902–903.) The court
concluded that “a plaintiff’s right to a voluntary dismissal is cut
off no later than the time of a ruling effectively disposing of the
case (or at the end of a time period specified in that ruling)” and
“that when there is a conflict between a plaintiff's right to
voluntary dismissal and a defendant’s right to a mandatory
dismissal, the defendant’s right prevails.” (Id. at p. 905.)9
       Here, the trial court held that Cole retained the right of
voluntary dismissal because it had not yet issued any ruling on
the Hammonds’ pending motion for mandatory dismissal. In
doing so, the court focused solely on the first prong of the two-
part test elucidated in Franklin. Considering the second prong of


      9 The Franklin court noted that the plaintiff’s right in M&R
was cut off both because the court had issued a ruling and
because of the procedural inevitability of dismissal upon the
defendant’s motion to dismiss. (Franklin, supra, 148 Cal.App.4th
at p. 204.)




                                18
that test, however, we conclude that the Hammonds’ right to a
mandatory dismissal prevails over Cole’s asserted right to
voluntarily dismiss the case. As mandated under section
583.360, by the expiration of the five-year period and followed the
Hammonds’ filing of their motion to dismiss, dismissal was a
legal inevitability.
       This legal inevitability is key to the second part of the test.
It is what distinguishes this case from cases—such as those cited
by the trial court—upholding a motion for voluntary dismissal
because it was filed when a substantive motion was pending but
not yet ruled upon. (See Christensen v. Dewor Developments
(1983) 33 Cal.3d 778 [valid dismissal filed before hearing on
demurrer]; Zapanta v. Universal Care, Inc., supra, 107
Cal.App.4th at pp.1173–1174 [“At the time appellants filed their
[section 581] request for dismissal, the opposition to the summary
judgment motion was not past due, no hearing on the motion had
been held and no tentative ruling or other decision tantamount to
an adjudication had been made in respondents’ favor. In other
words, the case had not yet reached a stage where a final
disposition was a mere formality.”]; Kyle v. Carmon (1999) 71
Cal.App.4th 901, 910 [plaintiff’s voluntary dismissal was valid
after defendant filed an anti-SLAPP motion to strike but before
the court ruled].)
       The Supreme Court’s discussion in Wells, supra, 29 Cal.3d
781, highlights this distinction. In Wells, the court held that once
a general demurrer is sustained with leave to amend and the
plaintiff does not amend within the time allotted, the plaintiff
can no longer voluntarily dismiss the action pursuant to section
581, even if the court has yet to enter a judgment of dismissal on
the sustained demurrer. (Id. at p. 789.) The court reasoned that




                                 19
when a “general demurrer to a petition is sustained, and the
plaintiff declines to amend, . . . nothing remains to be done except
to render judgment for the defendant.” (Id. at p. 785.)
Conversely, the court noted in dictum, that “such right of
voluntary dismissal, which is not barred until expiration of
plaintiff's time to amend after the sustaining of the demurrer,
would also not be impaired prior to a decision sustaining the
demurrer.” (Id. at pp. 789–790.)
       The trial court here interpreted M&R and the dictum in
Wells to mean that plaintiff’s right to dismiss remained viable
until it issued a ruling for defendant. But such an interpretation
conflicts with the cases decided under the standards articulated
in the second prong of the Franklin test, including Wells itself.
These cases hold that a plaintiff’s right to voluntary dismissal
ends when resolution in favor of the defendant is inevitable, even
absent a ruling by the court. (See Franklin, supra, 148
Cal.App.4th at pp. 202-203 [collecting cases]; see also Cravens v.
State Board of Equalization (1997) 52 Cal.App.4th 253, 257 [no
voluntary dismissal after time to oppose summary judgment had
passed]; London v. Morrison (1950) 99 Cal.App.2d 876 [dismissal
where case ordered transferred but plaintiff’s time to pay transfer
fees had expired, giving defendant statutory right to dismissal.)
Under section 583.360, the court is required to dismiss the action
upon the expiration of the five-year period and a motion by
defendant to dismiss. Once those steps have occurred, as they
did here, dismissal is inevitable.
       Cole argued below that mandatory dismissal was not a
foregone conclusion because he presented a substantive
opposition to the Hammonds’ motion. In that opposition, Cole
asserted that the “pendency of” appeals in other Sheen trust




                                20
cases “stayed trial court proceedings in the cases included in the
Sheen Trust Litigation, including this case.” But he has provided
no evidence that this case was stayed. Further, he has cited to no
authority establishing that a stay in one case automatically stays
a separate, related case for the purpose of tolling the five-year
limitations period. (See § 583.340 [five-year limitation excludes
time during which: “(a) The jurisdiction of the court to try the
action was suspended[;] (b) Prosecution or trial of the action was
stayed or enjoined[;] [or] (c) Bringing the action to trial, for any
other reason, was impossible, impracticable, or futile.”].)
       The cases Cole cited in his opposition to the Hammonds’
motion to dismiss discuss the effect of an appeal on trial
proceedings in the same action and are thus inapplicable here.
(See Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th
180, 191 [considering “whether trial court proceedings on the
merits following an appeal from the denial of an anti-SLAPP
motion are embraced in or affected by that appeal”]; Mattel, Inc.
v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th
1179, 1189 [considering whether an automatic stay results when
the moving party appeals from denial of a special motion to
strike].)
       Moreover, Cole has made no showing that the instant
litigation was affected by the appeals in any of these other cases.
His showing is particularly weak given the fact that only one of
the four appeals he cites was taken in the fees action and
therefore could arguably affect the assignment order. The
remaining appeals were taken in the underlying probate
litigation. Even assuming the running of the five-year period was
tolled during the pendency of an appeal in the fees action, which
Cole contends lasted 364 days between 2012 and 2013, the five-




                                21
year period would have run before the Hammonds filed their
motion to dismiss in 2018.
       Cole did not expressly raise this argument on appeal, apart
from stating that the trial court “would have had [this argument]
before it” when ruling on the motion to dismiss. His appellate
brief did not present any argument or authority regarding the
merits of his position that the five-year period was tolled for
several years. During oral argument, Cole’s counsel asserted
that he did not have the opportunity to address this argument on
appeal because it was not raised in the Hammonds’ opening brief.
That is incorrect. The Hammonds argued in their opening brief
that at the time they moved to dismiss the case, the trial court’s
“own record facially proved” that the case had never been stayed
and there was nothing to prevent mandatory dismissal. They
further contended that Cole’s opposition to the motion to dismiss
was a “sham” and that the listed appeals in other cases did not
operate to toll his five-year deadline to prosecute this lawsuit.
Cole did not respond to these arguments. In any event, Cole had
the opportunity to provide evidence to the trial court supporting
his tolling claim and failed to do so.
       Thus, Cole failed to provide any viable basis to oppose the
Hammonds’ motion to dismiss. Because the granting of that
motion was a mere formality by the time of the hearing, Cole no
longer had the right to move for a voluntary dismissal of the case.
       Cole also contends that substantial evidence supports an
implied factual determination by the trial court that he acted in
good faith in dismissing his complaint for the “independent
reason” that his litigation objectives were met. We reject this
contention for several reasons. First, the record lacks substantial
evidence to support a finding that Cole dismissed the case for an




                                22
independent reason. By Cole’s own admission, his litigation
objective was met when the Hammonds started paying their rent
directly to him in 2011, but he did not move to dismiss the case
until 2018. Second, it is not clear from the record that the trial
court made such a finding. Third, a finding that Cole acted in
good faith (even if supported by the record) would not be
sufficient to grant his request for voluntary dismissal in the face
of the Hammonds’ pending motion to dismiss under section
583.360. We agree with the court in Franklin that a plaintiff’s
right to dismiss is not properly based on “some generalized
‘unfairness’ or ‘good faith’ test,” untethered from the statutory
right under section 581 to dismiss prior to commencement of
trial. (See Franklin, supra, 148 Cal.App.4th at pp. 208-209,
discussing Tire Distributors, Inc. v. Cobrae (2005) 132
Cal.App.4th 538.)
       Accordingly, we conclude that the trial court erred in
denying the Hammonds’ motion for mandatory dismissal
pursuant to section 583.360, and instead granting Cole’s motion
for voluntary dismissal. Upon remand, the Hammonds may
choose to move for attorney fees based on their contention that
they are the prevailing parties, pursuant to a clause in their
rental agreement. (Civ. Code, § 1717, subd. (a); see also § 1033.5,
subd. (a)(10)(A).)




                                23
                          DISPOSITION
      The judgment is reversed. The case is remanded with
directions to vacate Cole’s voluntary dismissal, grant the
Hammonds’ motion to dismiss, and for further proceedings
consistent with this opinion. Appellants are awarded their costs
on appeal.
            CERTIFIED FOR PARTIAL PUBLICATION



                       COLLINS, J.

We concur:



MANELLA, P. J.



WILLHITE, J.




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