Filed 2/23/16 Reitz-Diaz v. Nissan North America CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----



MARIA REITZ-DIAZ et al.,

                   Plaintiffs and Appellants,                                                C077814

         v.                                                                          (Super. Ct. No.
                                                                               39201100265023CUPASTK)
NISSAN NORTH AMERICA, INC.,

                   Defendant and Respondent.                                    DISMISSAL BY OPINION


         Maria Reitz-Diaz, Joseph Diaz, and Julian Diaz (plaintiffs) appeal from a
judgment dismissing their product liability claims against Nissan North America, Inc.1
Plaintiffs sued Diane Murdock (and 20 Doe defendants) for negligently colliding with



1       Due to their shared surname, we refer to individual members of this family by
their first names. In addition to his individual capacity, Joseph appears as guardian ad
litem for Julian, who is a minor. We refer to Nissan North America, Inc., as Nissan.

       Plaintiffs also named Nissan Trading Corporation, Nissan Automotive Inc., and
Stockton Nissan in amended complaints. In its respondent’s brief, Nissan states that
Nissan Trading Corporation and Nissan Automotive Inc. were never served. Plaintiffs do
not dispute the lack of service in their reply brief. In any event, these entities are not
parties to this appeal.

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their Nissan automobile. After plaintiffs and Murdock reached a settlement agreement,
Maria and Joseph dismissed their action with prejudice. Despite Maria and Joseph’s
dismissal, plaintiffs subsequently filed amended complaints that added products liability
claims and named Nissan as one of the Doe defendants. As to Julian’s claims against
Nissan, he filed a voluntary dismissal without prejudice before the trial court entered the
judgment from which he seeks review.
       Nissan contends we must dismiss the appeal because the trial court lacked
jurisdiction over the products liability claims after plaintiffs filed their voluntary
dismissals. We agree and dismiss the appeal.
                       FACTUAL AND PROCEDURAL HISTORY
       In June 2011, plaintiffs filed a complaint that claimed Diane Murdock and 20 Doe
defendants were driving or acting negligently in colliding with plaintiff’s automobile on
February 2, 2011. Maria and Julian claimed physical injuries resulting from the accident,
and Joseph asserted loss of consortium.
       In July 2013, Maria and Joseph dismissed their claims against Murdock with
prejudice. There are two requests for dismissal with prejudice. The first filed and
entered on July 10, 2013 added the dismissal “is effective as to Maria Reitz-Diaz &
Joseph Diaz as to Diane Murdock and is not effective as to any other defendant or
prospective defendant.” The second filed and entered on July 31, 2013 dismissed the
complaint with prejudice as to “Maria Reitz-Diaz & Joseph Diaz, individually, Each
party to bear own costs/atty fees.” At the time of dismissal no claim other than
negligence was asserted against Murdock and none of the Doe defendants had been
substituted for known defendants.
       On August 7, 2013, Maria, Joseph, and Julian filed a “Doe amendment to the
complaint” that added a new cause of action for product liability and named Nissan as
Doe defendant number two. Nissan demurred and the trial court sustained the demurrer
with leave to amend on grounds the product liability cause of action was untimely and the

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cause of action for product liability failed to allege sufficient facts. Plaintiffs filed a first
amended complaint on November 7, 2013, rendering the demurrer moot. The first
amended complaint for damages included the following causes of action: negligence
against Murdock, loss of consortium by Joseph, and product liability against Nissan.
Nissan demurred and the trial court sustained the demurrer with leave to amend to allege
facts explaining why Maria did not have reason to discover earlier the factual basis of her
product liability claim.
       On January 17, 2014, plaintiffs filed a second amended complaint for damages
that added allegations explaining the delayed discovery of the product liability claim
against Nissan. Nissan again demurred. After finding the delayed discovery rule did not
apply to toll the statute of limitations, the trial court sustained the demurrer without leave
to amend.
       Plaintiffs filed a motion for reconsideration that was denied as untimely and
defective.
       On August 4, 2014, Joseph (on behalf of Julian) dismissed the complaint against
Nissan. On September 23, 2014, the trial court entered a judgment of dismissal on
plaintiffs’ claims against Nissan. From this judgment of dismissal, plaintiffs filed a
notice of appeal on November 7, 2014.
                                         DISCUSSION
                                                I
              Trial Court Jurisdiction after Voluntarily Dismissal of Claims
       Nissan contends we must dismiss the appeal from a judgment entered after
plaintiffs filed voluntary dismissals. The contention is meritorious.
                                               A.
                            Jurisdiction as to Maria and Joseph
       It is well established that “[a] plaintiff’s voluntary dismissal of his [or her] action
has the effect of an absolute withdrawal of his [or her] claim and leaves the defendant as

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though he [or she] had never been a party. (Holt Mfg. Co. v. Collins, 154 Cal. 265, 275;
King v. Superior Court, 12 Cal.App.2d 501, 507.) When an action is willfully dismissed
by the plaintiff against one or more of several defendants the effect is the same as if the
action had been originally brought against the remaining defendants. (Page v. W. W.
Chase Co., 145 Cal. 578, 574.) When dismissed against a sole defendant it is as though
no action had ever been filed.” (Cook v. Stewart McKee & Co. (1945) 68 Cal.App.2d
758, 761 (Cook).) Thus, Cook holds that “[b]y the clerk’s entry [of a voluntary dismissal]
no judicial act has been exercised from which appeal may be prosecuted.” (Ibid.)
       Maria and Joseph filed their dismissal against Murdock on July 10, 2013. At the
time, no claim other than negligence was asserted against Murdock and none of the Doe
defendants had been substituted for known defendants. Instead, Murdock was the sole
named defendant and negligence was the only theory of liability. Consequently, Maria
and Joseph’s voluntary dismissal deprived the trial court of jurisdiction over any new
claims they may have wished to assert in this case.
       Maria and Joseph argue the trial court had jurisdiction to hear their claims against
Nissan because they filed amended complaints in which they substituted Nissan for a Doe
defendant. We reject the argument. “ ‘[I]t is a well-settled proposition of law that where
the plaintiff has filed a voluntary dismissal of an action . . . , the court is without
jurisdiction to act further [citations], and any subsequent orders of the court are simply
void. [Citation.]’ (Gherman v. Colburn (1971) 18 Cal.App.3d 1046, 1050.) [¶] Plaintiff
could not overcome the effect of his voluntary dismissal by merely filing a motion for
leave to amend the complaint.” (Paniagua v. Orange County Fire Authority (2007) 149
Cal.App.4th 83, 89.) Paniagua notes that “ ‘[a] motion relates to some question that is
collateral to the main object of the action and is connected with and dependent upon the
principal remedy.’ [Citations.] A ‘motion’ therefore implies the ‘pendency of [a] suit[]
between the parties,’ [citation] and is ancillary to an ongoing action or proceeding.
[Citations.]’ ” (Ibid.) Here, there was no claim pending for product liability or against

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Nissan when Maria and Joseph filed their voluntary dismissal. Consequently, there was
no action pending for them in which they could file an amended complaint.2 (Ibid.)
       Maria and Joseph also assert Nissan is estopped from raising its jurisdictional
challenge for the first time on appeal after years of litigation. We reject the assertion. As
the California Supreme Court has stated, “ ‘an act beyond a court’s jurisdiction in the
fundamental sense is null and void’ ab initio. ([People v.] Williams [(1999)] 77
Cal.App.4th [436,] 447.) ‘Therefore, a claim based on a lack of [ ] fundamental
jurisdiction[ ] may be raised for the first time on appeal. (People v. Chadd (1981) 28
Cal.3d 739, 757.)” (People v. Lara (2010) 48 Cal.4th 216, 225.) Jurisdiction cannot be
conferred by estoppel. (In re Griffin (1967) 67 Cal.2d 343, 346.)
       Because the trial court lacked jurisdiction over Maria and Joseph’s action after
they filed their voluntary dismissal, we dismiss their appeal from the judgment entered
after their dismissal. (Cook, supra, 68 Cal.App.2d at pp. 760, 764 [appeal dismissed after
plaintiffs voluntarily dismissed their action in the trial court].)
                                               B.
                                   Jurisdiction as to Julian
       Nissan’s motion to dismiss contends that “Julian Diaz’s claim was dismissed and
he is not a party to this appeal.” Although Julian’s claim was dismissed prior to entry of
judgment, it appears he is a party to the appeal as reflected in the notice of appeal filed by
plaintiffs. Plaintiffs’ opposition to dismissal and their briefs on the merits do not appear
to abandon the appeal on behalf of Julian. Accordingly, we consider the trial court’s
jurisdiction over Julian’s claims against Nissan.




2       In light of our conclusion that the appeal must be dismissed for lack of
jurisdiction, we do not consider the parties’ arguments regarding whether the delayed
discovery rule tolled the statute of limitations for plaintiffs’ product liability claims
against Nissan.

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       As Julian’s guardian ad litem, Joseph voluntarily dismissed Julian’s claims against
Nissan before the trial court entered the judgment being challenged on appeal. Although
Julian’s claims against Nissan were dismissed without prejudice, no attempt to file a new
action or amend the complaint was made. Thus, the voluntary dismissal filed by Joseph
as guardian ad litem deprived the trial court of jurisdiction over Julian’s claims against
Nissan and precludes Julian’s present appeal. (Cook, supra, 68 Cal.App.2d at pp. 760-
761.) Thus, Julian’s appeal must be dismissed.
                                      DISPOSITION
       The appeal is dismissed. Nissan North America, Inc., shall recover its costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)



                                                              /s/
                                                  HOCH, J.



We concur:



        /s/
NICHOLSON, Acting P. J.



             /s/
DUARTE, J.




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