Filed 9/3/13 Ayala v. Gutierrez CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


MABEL AYALA,                                                         B243006

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC451204)
         v.

DAVID GUTIERREZ et al. ,

         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Ralph W. Dau, Judge. Appeal treated as petition for extraordinary writ. The petition for
extraordinary writ is granted. Order vacated and remanded with directions.


         Law Offices of Jina A. Nam & Associates, Jina A. Nam for Plaintiff and
Appellant.


         No appearance for Defendants and Respondents.
                  ___________________________________________________
       While several of defendants’ motions were pending, plaintiff voluntarily dismissed
her complaint with prejudice. Following the dismissal, the trial court ruled on
defendants’ motions.
       Plaintiff attempts to appeal from the order granting the motions. Although the
order is not appealable, we exercise our discretion to treat plaintiff’s appeal as a petition
for an extraordinary writ. We conclude that the trial court lacked jurisdiction to grant the
motions. We therefore vacate the order and direct that the action be dismissed with
prejudice.
                                     BACKGROUND
       Plaintiff and appellant Mabel Ayala brought suit against various defendants,
including David Gutierrez and Old Mission Financial, Inc. (Old Mission), in December
2010. In April 2012, Gutierrez and Old Mission filed a motion for leave to file a cross-
complaint against Ayala. A week later they filed a motion to compel production of
documents and a motion to compel further answers to form interrogatories. Each of these
three motions was set to be heard on May 30, 2012.
       On May 30, before defendants’ motions were heard, Ayala filed a dismissal of the
entire action with prejudice. At the hearing on the motions, Ayala’s attorney informed
the trial court of the voluntary dismissal. Nevertheless, the trial court entertained oral
argument and took defendants’ motions under submission. Later that day it issued an
order granting the discovery motions and the motion for leave to file a cross-complaint.
Furthermore, in connection with the discovery motions, it ordered that plaintiff pay
Gutierrez and Old Mission $760.50.
                                       DISCUSSION
       Plaintiff attempts to appeal from the order granting the discovery motions and
leave to file the cross-complaint. Generally, an appeal may not be taken following a
voluntary dismissal. (Gutkin v. University of Southern California (2002) 101




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Cal.App.4th 967, 975.) Code of Civil Procedure section 904.1, subdivision (a)(2),1
allows an appeal from an order made after an appealable judgment, but does not provide
for appeal of an order made after voluntary dismissal. When extraordinary circumstances
are present, however, we have discretion to treat an appeal from a nonappealable order as
a petition for extraordinary writ. (Angell v. Superior Court (1999) 73 Cal.App.4th 691,
698.) We exercise that discretion here in the interest of judicial economy because, if we
do not do so, further trial court proceedings will occur in an action that was already
dismissed in its entirety.
       A plaintiff generally has the right to dismiss an entire action prior to the
commencement of trial. (§ 581, subds. (b), (c).) “A request for a dismissal is usually
effective upon filing, and no other action by the clerk or the court is required.” (Law
Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 876.) Neither the trial
court nor the clerk may prevent entry of the dismissal. (Aetna Casualty & Surety Co. v.
Humboldt Loaders, Inc. (1988) 202 Cal.App.3d 921, 931.) Upon the filing of a voluntary
dismissal, the trial court loses jurisdiction to act in the case “except for the limited
purpose of awarding costs and statutory attorney fees.” (Gogri v. Jack in the Box Inc.
(2008) 166 Cal.App.4th 255, 261.) All subsequent proceedings are void. (Aetna
Casualty, at p. 931.)
       Although section 581, subdivision (c), expressly allows voluntary dismissals to be
taken “prior to the actual commencement of trial,” “trial” in the context of section 581 is
not limited to the traditional understanding of the term. (Lewis C. Nelson & Sons, Inc. v.
Lynx Iron Corp. (2009) 174 Cal.App.4th 67, 76.) Instead, it can also include dispositive
pretrial proceedings, such as demurrers that are sustained without leave to amend or
successful motions for summary judgment. (Ibid.; Gogri v. Jack in the Box Inc., supra,
166 Cal.App.4th at p. 267.) A voluntary dismissal is considered ineffective if it is filed
after there has been “a public and formal indication by the trial court of the legal merits


1     Unless otherwise noted, all further statutory references are to the Code of Civil
Procedure.


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of the case” or “some procedural dereliction by the dismissing plaintiff that made
dismissal otherwise inevitable.” (Franklin Capital Corp. v. Wilson (2007) 148
Cal.App.4th 187, 200.) Thus, for example, a dismissal was found ineffective when it was
taken after the trial court had already issued an adverse tentative ruling on a motion for
summary judgment. (Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765, 767.) In
another case, when the defendants met their initial burden in moving for summary
judgment and the plaintiff failed to file an opposition, judgment in the defendants’ favor
was an inevitability that the plaintiff could not avoid by filing a request for dismissal
without prejudice. (Cravens v. State Bd. of Equalization (1997) 52 Cal.App.4th 253,
257.)
        At the time of dismissal in this case, there had been no determinative statement by
the trial court or dereliction on the part of Ayala that made judgment in defendants’ favor
inevitable. Two of defendants’ discovery motions were pending when the dismissal was
filed, and it appears that no opposition was filed to either motion. Although the motions
requested terminating sanctions, whether terminating sanctions would be imposed was a
matter of discretion for the trial court, and a decision to impose such sanctions could not
be made lightly. (See Parker v. Wolters Kluwer United States, Inc. (2007) 149
Cal.App.4th 285, 297; Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262,
279.) Unlike summary judgment proceedings, in which a plaintiff’s failure to file a
response to adequate moving papers results in an adverse judgment, Ayala’s failure to
oppose the discovery motions did not preclude any possibility of her prevailing. At the
time Ayala filed her request for dismissal, there was no formal indication that her lawsuit
would fail, and therefore Ayala’s request for dismissal with prejudice was effective.
        Ayala’s filing of the request for dismissal thus prevented the trial court from
ordering that Ayala pay defendants’ attorney fees in connection with the discovery
motions. Although under the anti-SLAPP (Strategic Lawsuit Against Public
Participation) statute (§ 425.16) a trial court may award defendants their fees even after
the plaintiff’s filing of a request for dismissal (see Law Offices of Andrew L. Ellis v.



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Yang, supra, 178 Cal.App.4th at p. 879), we find no similar authority for a postdismissal
award of fees on a routine discovery motion.2
       In sum, once the request for dismissal was filed, the trial court was without
jurisdiction to decide defendants’ discovery motions or their motion for leave to file a
cross-complaint. By filing the request for dismissal with prejudice, Ayala terminated the
action (except for the limited decision of how much, if any, costs or statutory attorney
fees are awardable).
                                     DISPOSITION
       The appeal from the May 30, 2012, order is treated as a petition for extraordinary
writ. The petition for extraordinary writ is granted and the May 30, 2012, order is
vacated. The matter is remanded to the trial court with directions that the case be
dismissed with prejudice. Plaintiff is awarded costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                          BOREN, P.J.
We concur:


       CHAVEZ, J.


       FERNS, J.*




2     Defendants did not file a respondents’ brief and thus did not provide any argument
supporting the position that fees could properly be awarded.

*     Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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