Filed 1/14/14 (unmodified version attached)
                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FIRST APPELLATE DISTRICT

                                              DIVISION THREE




KAUSHIK DATTANI et al.,                                   A138582

        Plaintiffs and Appellants,                        (San Francisco County
v.                                                        Super. Ct. No. CGC-11-509290)
GEEN HONE LEE,                                            ORDER MODIFYING OPINION
        Defendant and Respondent.
                                                          [NO CHANGE IN JUDGMENT]



THE COURT:

It is ordered that the opinion filed December 19, 2013, be modified as follows:

In the paragraph on page 6 immediately before the disposition, the following language is
added after the sentence that reads “At some point a defendant is entitled to finality.”

       This case is different from those where the merits have been resolved by an order
granting a motion for summary judgment or sustaining a demurrer without leave to
amend. In those situations, the defendant has acted to bring the case to a close and is
properly required to take the additional step of obtaining a judgment or order of dismissal
from which an appeal can be taken. (See Johnson v. Alameda County Medical Center
(2012) 205 Cal.App.4th 521, 531; Vitkievicz v. Valverde (2012) 202 Cal.App.4th 1306,
1310, fn. 2.) The defendant should not have that burden when the plaintiff has chosen to
end the case.

There is no change in the judgment.


Dated: _______________                        __________________________________
                                              McGuiness, P.J.


                                                     1
Filed 12/19/13 (unmodified version)
                                CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      FIRST APPELLATE DISTRICT

                                          DIVISION THREE


KAUSHIK DATTANI, et al.,
        Plaintiffs and Appellants,
                                                     A138582
v.
GEEN HONE LEE,                                       (San Francisco County
                                                     Super. Ct. No. CGC-11-509290)
        Defendant and Respondent.


        Defendant and respondent Geen Hone Lee has moved to dismiss the appeal of
plaintiffs and appellants Kaushik Dattani, et al. (Dattanis) on the ground that their notice
of appeal was not timely filed. We conclude that an appealable judgment was created
when Dattanis filed a request for dismissal without prejudice of all of their causes of
action that remained after a grant of summary adjudication against them. Thus, the notice
of appeal filed more than 180 days after the date of this judgment, was untimely. We
therefore grant the motion to dismiss.
                                          I. BACKGROUND
        Dattanis filed a four-count complaint against respondent. By order dated June 27,
2012, the court granted respondent’s motion for summary adjudication of Dattanis’s first
cause of action. On September 10, 2012, Dattanis filed a request for dismissal of all the
remaining causes of action. According to counsel’s uncontested declaration in support of
the motion to dismiss this appeal, she appeared on September 10, 2012, for trial of the
second, third, and fourth causes of action. Dattanis’s attorney appeared and told her that
he was dismissing those causes of action “in order to pursue an appeal.”
        The request for dismissal was filed on the requisite Judicial Council form with a
section to be completed by the clerk showing whether or not dismissal was entered as

                                                 1
requested. This section of the form was never completed by the clerk. The court’s
register of actions for September 10, 2012, states: “Removed from master court calendar
set for Sep-10-2012 – off calendar. Plaintiff’s counsel represented to the court that the
1st cause of action was adjudicated on 6/27/12 and a dismissal of all the other causes of
action was filed on 9/10/12.”
       On April 16, 2013, the court filed a “Judgment by the Court Under C.C.P. § 437c”
prepared by Dattanis’s counsel. The judgment states: “On June 27, 2012, this Court
granted [respondent’s] motion for summary adjudication on the first cause of action . . . .
On September 10, 2012, [Dattanis] dismissed their remaining causes of action . . . .
Accordingly, [Dattanis] have no further claims to prosecute, and the Court orders that
judgment shall be entered in favor of [respondent]. [Dattanis] shall recover nothing on
their complaint.”
       On May 6, 2013, Dattanis filed a notice of appeal from the April 16 judgment.
They checked the box on the form stating that the appeal was from a “[j]udgment after an
order granting a summary judgment motion.”
                                     II. DISCUSSION
       Respondent contends that Dattanis’s request for dismissal was the equivalent of a
judgment on the day it was filed, and appealable. If respondent is correct, then Dattanis’s
notice of appeal was untimely. Under California Rules of Court, rule 8.104(a)(1)(C), the
latest possible time to file a notice of appeal is 180 days after entry of judgment. If the
request for dismissal was tantamount to a judgment, then judgment was entered on
September 10, 2012, the date the request was filed by the clerk. (Palmer v. GTE
California, Inc. (2003) 30 Cal.4th 1265, 1268, fn. 2 [“a judgment’s date of filing, as
shown on a file stamp, is the judgment’s date of entry”].) The notice of appeal was filed
more than 180 days later, in May 2013.
        “Ordinarily, a plaintiff’s voluntary dismissal is deemed to be nonappealable on
the theory that dismissal of the action is a ministerial action of the clerk, not a judicial
act.” (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012
(Stewart).) However, a series of cases beginning with Ashland Chemical Co. v. Provence


                                               2
(1982) 129 Cal.App.3d 790 (Ashland) recognized an exception to this rule and “allowed
appeals by plaintiffs who dismissed their complaints after an adverse ruling by the trial
court, on the theory the dismissals were not really voluntary, but only done to expedite an
appeal.” (Id. at p. 793; see id. at p. 792 [the plaintiff asked the clerk to dismiss the
compliant with prejudice “ ‘only for the purpose of expediting appeal’ ” after the court
sustained the defendant’s demurrer without leave to amend]; Denney v. Lawrence (1994)
22 Cal.App.4th 927, 930, fn. 1 (Denney) [following Ashland; parties stipulated to a
“judgment of dismissal” after a ruling adverse to the plaintiff in a defamation action];
Casey v. Overhead Door Corp. (1999) 74 Cal.App.4th 112, 116, fn. 2 (Casey),
disapproved on another ground in Jimenez v. Superior Court (2002) 29 Cal.4th 473, 481,
fn. 1 [following Ashland and Denney; court granted the defendant’s motion for summary
adjudication and an in limine motion on the remaining cause of action; the defendant’s
motion for “nonsuit/directed verdict” was granted and a “stipulated judgment” was
entered for the defendant].)
        Ashland, Denney, and Casey stand for the propositions that an appeal will lie
“when a dismissal was requested after an adverse trial court ruling so that an appeal could
be taken promptly,” and the request for such dismissal “operates as a request for an entry
of judgment based on the adverse ruling.” (Denney, supra, 22 Cal.App.4th at p. 930, fn.
1.) It is unclear whether a judgment was entered in Ashland (Ashland, supra, 129
Cal.App.3d at p. 792), but judgments were entered in Denney and Casey from which the
appellants appealed. (Denney, supra, at p. 930; Casey, supra, 74 Cal.App.4th at p. 116.)
Here, no judgment was filed when the request for dismissal was made, and Denney,
Casey, and possibly Ashland may be distinguished on that ground.
       The distinction was eliminated in Stewart, where the reasoning of Ashland,
Denney, and Casey was extended to permit an appeal even though the record “contain[ed]
no judgment or order of dismissal and no indication that either was ever entered.”
(Stewart, supra, 87 Cal.App.4th at p. 1012.) But Stewart may also be distinguishable.
That appeal contested an order for sanctions, and the parties agreed “that a settlement had
been reached and a request for voluntary dismissal [was] entered with a stipulation that


                                               3
the sanction order would be appealed.” (Stewart, supra, at p. 1012.) “Since the parties
[were] in agreement that [a] dismissal was entered with the stipulation that appeal from
the trial court’s order imposing sanctions was to follow, [the appellate court was]
satisfied that an appealable order exist[ed].” (Ibid.) There is no agreement about
appealability in the record here.
       The next relevant case, and the one that most directly supports our holding, is
Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967 (Gutkin). There,
the plaintiff appellant sued a university and several individual defendants. A motion to
dismiss the individual defendants was granted after their demurrers were sustained, and
the case proceeded against the university. On August 10, 2001, in the face of a
threatened motion directed at his remaining claims, the plaintiff appellant “filed a
voluntary request for dismissal of his complaint ‘without prejudice’ ” (Gutkin, supra,
101 Cal.App.4th at p. 973.) “[The appellant] filed a notice of appeal on August 17, 2001.
He then twice sought entry of judgment of dismissal on the basis of the trial court’s
orders sustaining the demurrers to five of the seven causes of action and dismissal of the
individual defendants, as well as his own voluntary dismissal of the action. The court
clerk rejected [the appellant’s] proposed judgment of dismissal because a dismissal of the
complaint had been entered and notice of dismissal given. [The appellant] then followed
with a ‘supplemental notice of appeal’ on October 4, 2001.” (Ibid.)
       The Gutkin court held that the rulings on the demurrers could be contested in an
appeal filed following the request for dismissal. The court reasoned that the appellant
could not voluntarily dismiss the causes of action to which demurrers had been sustained
and, citing Ashland, Casey, and Stewart, held “that even though the trial court refused to
enter judgment following his voluntary dismissal of the complaint, the court’s order
sustaining the demurrers without leave to amend, combined with the dismissal of the
action, had the legal effect of a final, appealable judgment.” (Gutkin, supra, 101
Cal.App.4th at p. 974-975 [italics added].) We likewise conclude that the granting of
summary adjudication on the first cause of action here, combined with Dattanis’s request



                                             4
for dismissal of the remaining causes of action, created a “final, appealable judgment”
that enabled Dattanis to contest the summary adjudication.
       Dattanis have filed an opening brief doing just that. They contend that summary
adjudication of the first cause of action was erroneous. They do not contest the causes of
action they voluntarily dismissed, and could not do so under Gutkin. Gutkin held that the
appellant there could not challenge rulings on the causes of action that were not resolved
by the demurrers in that case because, as to those causes of action, the appeal was barred
by the rule that voluntary dismissals are not appealable. (Gutkin, supra, 101 Cal.App.4th
at p. 975.) We have no reason to question that aspect of Gutkin here.
       Gutkin could be distinguished on the ground that, in that case, “a dismissal of the
complaint had been entered and notice of dismissal given.” (Gutkin, supra, 101
Cal.App.4th at p. 973.) Here, the trial court clerk merely filed and stamped Dattanis’s
request for dismissal on September 10, 2012. Dattanis do not contend that the dismissal
was ineffective on that date, and they would be estopped from so arguing because the
purported “judgment” they filed in April 2013 stated that they had “no further claims to
prosecute” because they “dismissed their remaining causes of action” on that date. That
estoppel aside, we hold that the mere filing of the request for dismissal, without further
action by the clerk, dismissed the remaining claims from the suit and created an
appealable judgment from which Dattanis could have contested the summary
adjudication ruling. As recently confirmed by the decision in Kurwa v. Kislinger (2013)
57 Cal.4th 1097 (Kurwa), the request for dismissal effectively ended proceedings in the
trial court, even though the causes of action were dismissed without prejudice. (Compare
Goldbaum v. Regents of the University of California (2011) 191 Cal.App.4th 703, 708
[suggesting that a dismissal with prejudice is required to create an appealable judgment]).
       In Kurwa, the plaintiff dismissed some of his causes of action with prejudice after
an adverse pretrial ruling. The parties agreed to dismiss their remaining claims against
each other without prejudice, and to waive the statute of limitations applicable to those
claims. Judgment was entered for the defendant from which the plaintiff appealed. The
court held that the judgment was not final and appealable under the one final judgment


                                             5
rule because the claims dismissed without prejudice were preserved for later litigation by
the waiver of the statute of limitations. (Kurwa, supra, 57 Cal.4th at pp. 1100, 1105.)
       Kurwa’s relevance here is that it did not attribute the lack of finality to the
dismissal of some of the causes of action without prejudice. The judgment was not final
because of the agreement to waive the statute of limitations as to those causes of action in
order to preserve them for future litigation. Kurwa quoted with approval the decision in
Abatti v. Imperial Irrigation Dist. (2012) 205 Cal.App.4th 650 (Abatti), where the court
held: “Dismissal of some counts without prejudice, by itself, does not deprive a
judgment of appealability, as ‘claims that are dismissed without prejudice are no less
final for purposes of the one final judgment rule than are adjudicated claims . . . .’
(Abatti, supra, at p. 665.) But where the parties have reached an agreement that assures
the potential for future litigation of the dismissed claims, the judgment ‘lacks sufficient
finality to be appealable pursuant to the one final judgment rule.’ (Id. at p. 667.)”
(Kurwa, supra, 57 Cal.4th 1097 at p. 1104.) “A plaintiff or cross-complainant has, of
course, the right to voluntarily dismiss a cause of action without prejudice prior to trial.
[Citations.] And as the Abatti court explained, such a dismissal, unaccompanied by any
agreement for future litigation, does create sufficient finality as to that cause of action so
as to allow appeal from a judgment disposing of the other counts.” (Id. at p. 1105.)
       Here, Dattanis’s dismissal of the remaining claims without prejudice operated as a
final judgment that resolved all the claims between the parties. Were we to conclude
otherwise, there would be no consequence to a plaintiff who dismisses claims to facilitate
appellate review but delays years before seeking entry of judgment. At some point a
defendant is entitled to finality. The appeal was filed more than 180 days after judgment
and is untimely.




                                               6
                                III. DISPOSITION
     The appeal is dismissed.



                                           _________________________
                                           Siggins, J.


We concur:


_________________________
McGuiness, P.J.


_________________________
Jenkins, J.




                                       7
A138582
Trial Court:                                 San Francisco County Superior Court


Trial Judge:                                 Hon. Harold E. Kahn


Counsel for Plaintiffs and Appellants:       Michael Timothy Heath,
                                               and
                                             Howard Olsen
                                               of Law Office of Michael Heath


Counsel for Defendant and Respondent:        Hannah C. Leung
                                               of Leung & Associates

                                             Christine A. Chorney
                                               of Casalina & Disston




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