COUNSEL:

Paul Nicholas Boylan for Plaintiff and Appellant.

David Howard and Mark Goldowitz for Defendant and Respondent.

Plaintiff James Kyle filed a civil action for damages against defendant Shelly Carmon. Claiming plaintiff's suit was a "strategic lawsuit against public participation" (SLAPP), defendant moved to dismiss the action pursuant to Code of Civil Procedure section 425.16. [FN 1] A hearing was held on the SLAPP motion and, at the conclusion of the hearing, the trial court took the motion under submission. While the motion was under submission, plaintiff filed with the clerk a voluntary dismissal of the action with prejudice pursuant to section 581. Despite the filing of the dismissal, the trial court then granted the SLAPP motion, entering an order striking plaintiff's complaint and awarding defendant attorney's fees and costs.

[FN 1] Undesignated statutory references are to the Code of Civil Procedure.

Plaintiff appeals, contending the trial court was without authority to strike the complaint once the dismissal with prejudice had been filed.

We conclude the voluntary dismissal was valid; we shall therefore reverse the trial court's order striking plaintiff's complaint. However, we shall affirm the trial court's award of attorney's fees and costs in favor of defendant.

On May 27, 1997, plaintiff (a school district superintendent according to the complaint) filed this lawsuit against defendant (and two others who were dismissed and are not party to this appeal). The first amended complaint alleged causes of action for invasion of privacy, defamation, and intentional infliction of emotional distress (together with other causes of action which were dismissed with prejudice before the current dispute arose). The factual allegations underlying the complaint are not at issue in this appeal.

On September 24, 1997, defendant filed a special motion to strike the complaint under section 425.16, subdivision (b)(1). The hearing on the motion was originally set for October 24, 1997, but was continued.

On December 8, 1997, the hearing was held. The court minutes reflect that the court heard argument at the hearing and took the matter under submission. [FN 2]

[FN2] On January 6, 1999 (three weeks after filing her respondent's brief on appeal), defendant filed in this court a motion to augment the record with a purported transcript of the December 8, 1997, hearing. She asserted the transcript would support the unsubstantiated assertion in her respondent's brief that the trial court was going to grant her section 425.16 motion. However, as pointed out in plaintiff's opposition to the motion to augment the record, the transcript submitted by defendant is not an official reporter's transcript (apparently, there is none) but was transcribed by a person not yet certified as a court reporter, who was working from a videotape of the hearing made by a defendant who is not party to this appeal. Additionally, defendant fails to show any excuse for failure to comply with Appendix A-2 of this court's internal operating practices and procedures, which states that a respondent's motion to augment should be filed within 15 days of the filing of the appellant's opening brief. (Ct. App., Third App. Dist., Internal Operating Practices & Proc., Appen. A-2, Augmentation of Record.)

We deny defendant's motion to augment the record.

We grant plaintiff's motion to disregard the portion of defendant's brief asserting the trial court at the hearing indicated an intent to grant the section 425.16 motion.

On December 10, 1997, plaintiff submitted to the court clerk a request for voluntary dismissal of his case with prejudice. The clerk filed the dismissal on December 11, 1997.

On December 17, 1997, the court filed its order (which was signed December 14th), striking the first amended complaint under section 425.16. The order (with no mention of the voluntary dismissal) stated the court determined the complaint arose from defendant's exercise of her right to free speech, and it was not probable that plaintiff would prevail if the action were allowed to proceed. The order also stated defendant was to recover costs and attorney's fees. [FN 3]

[FN3] Defendant asserts the trial court did award her attorney's fees on June 11, 1998. She gives no citation to the record but merely refers us to footnote three of her appellate brief, which says nothing about attorney's fees.

An order granting a motion to strike under section 425.16 is an appealable order. (See 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 971, pp. 434-435, citing Adohr Milk Farms, Inc. v. Love (1967) 255 Cal.App.2d 366, 370 [though motion to strike is ordinarily nonappealable, it is appealable as a final judgment if it removes the only cause of action alleged and leaves no issues to be determined].) A party may appeal from a purportedly void judgment in order to clear the record. (Ibid.; Casa De Valley View Owner's Assn. v. Stevenson (1985) 167 Cal.App.3d 1182, 1191, fn. 4.) This case presents a question of law, which we review de novo. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799.)

Although the merits of the section 425.16 motion are not at issue in this appeal, the nature of the motion will be a factor in our discussion of plaintiff's right to voluntary dismissal under section 581.

Section 425.16 "is designed to protect citizens in the exercise of their First Amendment constitutional rights of free speech and petition. It is California's response to the problems created by meritless lawsuits brought to harass those who have exercised these rights." (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 644 (Church of Scientology); see also, section 425.16, subdivision (a).)

A SLAPP suit is subject to a special motion to strike the complaint under section 425.16, unless the court determines the plaintiff has established a probability of prevailing on the claim. (§ 425.16, subd. (b)(1).) "The moving party bears the initial burden of establishing a prima facie showing the plaintiff's cause of action arises from the defendant's free speech or petition activity. [Citation.] . . . If the defendant establishes a prima facie case, then the burden shifts to the plaintiff to establish '"a probability that the plaintiff will prevail on the claim,"' i.e., 'make a prima facie showing of facts which would, if proved at trial, support a judgment in plaintiff's favor.' [Citation.] In making its determination, the trial court is required to consider the pleadings and the supporting and opposing affidavits stating the facts upon which the liability or defense is based. [Citation.] Discovery is stayed upon the filing of the motion. [Citation.] However, upon noticed motion and for good cause shown, the court may allow specified discovery." (Church of Scientology, supra, 42 Cal.App.4th at pp. 646-647, italics omitted.)

The burden on the plaintiff is similar to the standard used in determining motions for nonsuit, directed verdict, or summary judgment. (Church of Scientology, supra, 42 Cal.App.4th at pp. 653-654; Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823-824.) "In order to preserve the plaintiff's right to a jury trial the court's determination of the motion cannot involve a weighing of the evidence." (Church of Scientology, supra, 42 Cal.App.4th at p. 654.) "It is recognized, with the requirement that the court consider the pleadings and affidavits of the parties, the test is similar to the standard applied to evidentiary showings in summary judgment motions . . . ." (Ibid., citing Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 15-16.)

Plaintiff contends the order striking the complaint under section 425.16 is void for lack of jurisdiction because plaintiff's voluntary dismissal of the case was valid, since the court had not yet ruled on the section 425.16 motion. We agree. [FN 4]

[FN 4] However, the parties agree that even if plaintiff's voluntary dismissal is valid, the trial court retained jurisdiction to award defendant attorney' s fees pursuant to a section 425.16 motion filed before plaintiff dismissed the case. (Moore v. Liu (1999) 69 Cal.App.4th 745, 751, fn. 3; see also, Coltrain v. Shewalter (1998) 66 Cal.App.4th 94, 107 [where plaintiff voluntarily dismisses suit while section 425.16 motion is pending, trial court has discretion to determine whether defendant is prevailing party for purposes of attorney's fees under section 425.16].) The plaintiff's right to dismiss while the section 425.16 motion was pending was not challenged in Moore or Coltrain, hence those cases do not assist us in resolution of this issue. (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 [opinion is not authority for proposition not therein considered].)

We shall conclude plaintiff's voluntary dismissal with prejudice was valid, where it was entered before a ruling on the section 425.16 motion. [FN 5] Therefore, the order striking the complaint is void.

[FN 5] We note we have no occasion in this appeal to decide whether a "tentative ruling" cuts off a plaintiff's right to dismiss a case voluntarily. (See M & R Properties v. Thomson (1992) 11 Cal.App.4th 899, 901 [tentative ruling became formal ruling when plaintiff failed to request hearing by the time allotted]; cf. Datner v. Mann Theatres Corp. (1983) 145 Cal.App.3d 768, 771 [informal tentative ruling expressed during chambers conference did not cut off plaintiff's right to voluntary dismissal].)

Section 581 allows a plaintiff voluntarily to dismiss a case before "commencement of trial." (§ 581, subds. (b), (c). [FN 6] "The purpose behind this right is to allow a plaintiff a certain amount of freedom of action within the limits prescribed by the code." (Cal-Vada Aircraft, Inc. v. Superior Court (1986) 179 Cal.App.3d 435, 446 (Cal-Vada Aircraft).) "Apart from certain . . . statutory exceptions, a plaintiff's right to a voluntary dismissal [before commencement of trial pursuant to section 581] appears to be absolute. [Citation.] Upon the proper exercise of that right, a trial court would thereafter lack jurisdiction to enter further orders in the dismissed action" (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 784 (Wells)), except for matters such as attorney's fees. (Fn. 4, ante.) An order by a court lacking subject matter jurisdiction is void. (Carlson v. Eassa (1997) 54 Cal.App.4th 684, 691.)

[FN 6] Section 581, subdivisions (b) and (c) provide in part:

"(b) An action may be dismissed in any of the following instances:

"(1) 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, upon payment of the costs, if any.

". . . . . . . . . . . . . . . . . . . . . . . . . . .

"(c) A plaintiff may dismiss his or her complaint, or any cause of action asserted in it, in its entirety, or as to any defendant or defendants, with or without prejudice prior to the actual commencement of trial."

Section 581's purpose in cutting off the plaintiff's absolute right to dismissal upon commencement of trial is to avoid abuse by plaintiffs who, when led to suppose a decision would be adverse, would prevent such decision by dismissing without prejudice and refiling, thus subjecting the defendant and the courts to wasteful proceedings and continuous litigation. (Wells, supra, 29 Cal.3d at pp. 785-786.) That purpose is not implicated here, where plaintiff dismissed the case with prejudice, such that he is precluded from refiling the action. (Adler v. Vaicius (1993) 21 Cal.App.4th 1770, 1776 [voluntary dismissal with prejudice is a final determination on the merits].) Plaintiff stresses his dismissal was with prejudice. Nevertheless, the current statute treats equally dismissals with or without prejudice, with respect to the right to dismiss before commencement of trial. [FN 7] (§ 581, subd. (c), fn. 6, ante.)

[FN 7] After commencement of trial, "the court shall dismiss the complaint . . . with prejudice, if the plaintiff requests . . . ." (§ 581, subd. (e).) Here, plaintiff did not proceed through the court but had the dismissal entered by the clerk. Therefore, we have no need to consider subdivision (e) of the statute in this appeal.

"Commencement of trial" in section 581 means the opening statement or argument, the swearing in of the first witness, or the introduction of any evidence. (§ 581, subd. (a)(6). [FN 8] However, case law holds that section 581 is not limited to "trial" in the conventional sense but also includes determinations on matters of law which dispose of the entire case, such as some demurrers and pretrial motions. (E.g. Wells, supra, 29 Cal.3d at p. 785 [once general demurrer is sustained with leave to amend, and plaintiff does not amend within time allotted, plaintiff can no longer voluntarily dismiss, even if court has not yet entered judgment on dismissal on the sustained demurrer]; Goldtree v. Spreckels (1902) 135 Cal. 666 [sustaining of demurrer without leave to amend as to two of three causes of action precluded plaintiff from voluntary dismissal of those two causes of action].) "The thread running through all these cases seems to be one of fairness: Once the parties commence putting forth the facts of their case before some sort of fact finder, such as an arbitrator, or at the pretrial stage a ruling is made on an issue of law or on admitted facts which effectively disposes of the plaintiff's case against him, it is unfair -- and perhaps a mockery of the system -- to allow the plaintiff to dismiss his complaint and refile. While our system is adversary and grounded on vigorous disputation, it is also dedicated to justice and grounded on the fundamental fairness of its proceedings." (Gray v. Superior Court (1997) 52 Cal.App.4th 165, 173 [evidentiary proceedings before referee in partition action constituted commencement of trial].)

[FN 8] Section 581, subdivision (a)(6) provides "'Trial.' A trial shall be deemed to actually commence at the beginning of the opening statement or argument of any party or his or her counsel, or if there is no opening statement, then at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence."

Here, a section 425.16 motion, if successful, effectively disposes of the entire case, because the court orders the plaintiff's complaint stricken.

The question before us is whether a plaintiff may validly have a voluntary dismissal entered by the clerk after a section 425.16 motion is filed by the defendant and a hearing is held, but before the court rules on the motion. We conclude the answer is yes.

We first dispose of defendant's apparent argument that, since a section 425.16 motion presents evidence to the trial court, the motion falls with section 581's express provision that trial commences upon the introduction of any evidence. Defendant also argues a hearing on a SLAPP motion is a "mini-trial[] on affidavits," hence a "trial" within the meaning of section 581. We disagree. A section 425.16 motion is in the nature of a motion for nonsuit, directed verdict, or summary judgment. (Church of Scientology, supra, 42 Cal.App.4th at pp. 653-654; Wilcox v. Superior Court, supra, 27 Cal.App.4th at pp. 823-824.) Although evidence is submitted, there is no weighing of evidence. (Ibid.) This is in contrast to defendant's cited authority -- Gray v. Superior Court, supra, 52 Cal.App.4th 165, which held trial commenced under section 581 once evidentiary proceedings began before the referee in a partition action. The referee does weigh the evidence as a trier of fact (though the referee's decision is not binding on the trial court). (Id. at p. 171.) Indeed, Gray stated trial commences under section 581 "[o]nce the parties commence putting forth the facts of their case before some sort of fact finder . . . ." (Id. at p. 173.) Because the trial court ruling on a SLAPP motion does not find facts, the submission of evidence in a section 425.16 motion does not constitute "commencement of trial" under section 581.

Various courts have indicated -- in holdings or dictum -- that a plaintiff has an absolute right to voluntary dismissal before the court rules on a pending demurrer or pretrial motion that may dispose of the entire case. For example, Wells, supra, 29 Cal.3d 781, construing section 581's language about "actual commencement of trial," 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 under section 581, even if the court has yet to enter a judgment of dismissal on the sustained demurrer. The Supreme Court concluded this represented no change from judicial construction of a prior version of the statute which afforded plaintiff the right to dismiss at any time before trial. (Id. at pp. 785, 787.) Wells described the issue as a conflict between a plaintiff's absolute right to dismiss before commencement of trial, and the defendant's statutory right to a dismissal with prejudice after a demurrer is sustained with leave to amend and the plaintiff fails to amend. When the plaintiff fails to amend, said the court, nothing remains to be done except render judgment. (Id. at p. 785.) In dictum, Wells stated: "(Anticipating another possible source of procedural confusion [citation], we note 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.)" (Wells, supra, 29 Cal.3d at pp. 789-790, original italics.)

This dictum was discussed in Christensen v. Dewor Developments (1983) 33 Cal.3d 778 (Christensen) -- a case not cited by the parties. In Christensen, the plaintiffs filed a lawsuit alleging various contract claims but also alleging the dispute was subject to an arbitration clause in the contract. (Id. at pp. 780-781.) The defendants successfully demurred. The plaintiffs filed an amended complaint which again acknowledged the arbitration clause. (Id. at p. 781.) The defendants filed a demurrer, asserting among other things that the plaintiffs had waived their right to arbitrate. One day before the scheduled hearing on the demurrer, the plaintiffs dismissed their complaint without prejudice. [FN 9] (Ibid.) Thereafter, the plaintiffs filed a petition to compel arbitration. The defendants moved to vacate the dismissal and enter a new dismissal with prejudice. (Id. at p. 784.) The trial court denied the petition to compel arbitration, concluding the plaintiffs had waived the right to arbitrate. (Id. at p. 781.) The trial court denied the motion to vacate the dismissal, ruling that a voluntary dismissal after the filing of an amended complaint and before the ruling on the demurrer to that amended complaint was permissible. (Id. at pp. 784-785.)

[FN 9] The opinion does not state whether dismissal was entered by the clerk or the court, but the context suggests it was the clerk.

After affirming the trial court's order denying the petition to compel arbitration, the Supreme Court said in Christensen: "Since the issue was vigorously argued below and is asserted by defendants on appeal, and will undoubtedly be raised in the event plaintiffs seek to renew their litigation, we briefly discuss whether plaintiffs properly dismissed their complaint without prejudice." [FN 10] (Id. 33 Cal.3d at p. 784.) Christensen quoted the Wells dictum about plaintiffs having the right to dismiss before a ruling on a demurrer, and concluded the plaintiffs had the right to dismiss the complaint without prejudice before any decision on the demurrer to the first amended complaint. (Christensen, supra, 33 Cal.3d at p. 785.) Christensen,noted with approval the result in cases such as United Shippers, Inc. v. Superior Court (1980) 104 Cal.App.3d 359 (disapproved on other grounds in Wells, supra, 29 Cal.3d at p. 789), which upheld a voluntary dismissal without prejudice entered by the clerk, where the dismissal was entered after a demurrer had been argued and submitted but before the court ruled on the demurrer.

[FN 10] Even assuming this reflects dictum, dictum of the California Supreme Court is not binding but is entitled to great weight where the issue was carefully considered. (Chevron U.S.A., Inc. v. Workers' Comp. Appeals Bd. (1990) 219 Cal.App.3d 1265, 1272; People v. Mayo (1986) 185 Cal.App.3d 389, 395.)