Though not cited by the parties, we note one opinion of the Second District would move up the cut-off point to the time of hearing on the question of law. "A plaintiff may as a matter of right dismiss an action until there has been a hearing on the demurrer filed by a defendant and the matter has been submitted to the court." (Datner v. Mann Theatres Corp. (1983) 145 Cal.App.3d 768, 770 [voluntary dismissal entered before hearing on demurrer was valid].) However, Datner cited Wells as authority for this proposition. As we have seen, Wells indicated in dictum that the cut-off point was decision on the demurrer, not a hearing or submission. Furthermore, as we have seen, Christensen, citing Wells, saw no problem with allowing a plaintiff to dismiss before decision on a demurrer. (Christensen, supra, 33 Cal.3d at p. 785.) Datner does not mention Christensen, which was published three months before Datner. We therefore respectfully decline to follow Datner.
We conclude a plaintiff retains the right to voluntary dismissal at any time before a ruling by the trial court on a section 425.16 motion.
Defendant argues that when a matter has proceeded to a hearing on issues which will effectively dispose of the case, a trial has commenced for section 581 purposes. However, the cases cited by defendant are distinguishable, primarily because the plaintiffs tried to dismiss after the functional equivalent of a ruling disposing of the case, or where the ruling was a mere formality, or where voluntary dismissal would conflict with some statutory entitlement of the defendant apart from the merits of the pending motion -- circumstances not present in the case before us.
Thus, defendant cites Miller v. Marina Mercy Hospital (1984) 157 Cal.App.3d 765. There, plaintiffs failed to respond to a defense request for admissions on all issues in the case, which resulted in all issues being deemed admitted by operation of law. (Id. at p. 769.) The trial court denied the plaintiffs' request for relief from the deemed admissions. The defendants filed a motion for summary judgment based on the deemed admissions. Before the hearing on the summary judgment motion, the plaintiffs had the court clerk enter a dismissal without prejudice. The trial court nevertheless granted summary judgment in favor of the defendants. The appellate court affirmed, concluding that the plaintiffs' right to a voluntary dismissal terminated upon notification by defendants of the deemed admissions. (Id. at pp. 769-770.) The plaintiffs' right to voluntary dismissal conflicted with the defendants' right to have the deemed admissions. The deemed admissions effectively disposed of the entire case and thus cut off the plaintiffs' right to voluntary dismissal under section 581. (Ibid.) Unlike Miller, here there was no preexisting entitlement of defendant at the point in time when plaintiff dismissed the case.
Defendant also cites Cravens v. State Bd. of Equalization (1997) 52 Cal.App.4th 253. There, the defendant filed a motion for summary judgment. The plaintiff did not file any opposition but instead, one day before the hearing on the motion, had a dismissal without prejudice entered by the court clerk. The trial court nevertheless granted summary judgment in favor of the defendant. The appellate court affirmed, concluding that under the circumstances of the case, the entry of summary judgment was a mere formality, because the summary judgment statute gives the trial court discretion to grant summary judgment based on the absence of opposition, and the record showed the moving papers sufficed to entitle the defendant to summary judgment. Thus, the plaintiff's right to voluntary dismissal was cut off before formal decision on the summary judgment motion. Here, decision on the section 425.16 motion was not a mere formality. Hence, Cravens does not assist defendant in the case before us.
Defendant also cites Hartbrodt v. Burke (1996) 42 Cal.App.4th 168 (Hartbrodt). There, a discovery order required the plaintiff to produce a tape to the defendant within 30 days. The plaintiff disobeyed the order and refused to turn over the tape. The defendants moved for terminating sanctions, asking the court to dismiss the case with prejudice as a sanction under the discovery statutes. Before the hearing on the motion, the plaintiff requested a dismissal without prejudice. The trial court rejected the request and granted the defense motion for a dismissal with prejudice as a terminating sanction. The appellate court affirmed. The bulk of the opinion addressed discovery issues. As to the matter of voluntary dismissal, the appellate court quickly concluded that allowing the plaintiff to dismiss without prejudice would defeat the court' s power to enforce its discovery orders. (Id. at p. 175.) This consideration is not at issue in the case before us, where there is no preexisting court ruling or order which could be viewed as entitling the defendant to a final disposition of the case.
Moreover, Hartbrodt cited only M & R Properties v. Thomson (1992) 11 Cal.App.4th 899 (M & R Properties), as holding that a plaintiff cannot defeat a defendant's right to obtain a determination on the merits by simply filing a voluntary dismissal when statutory authority entitles the defense to a final judgment. (Hartbrodt, supra, 42 Cal.App.4th at p. 176.) However, in M & R Properties, there was a ruling on the defense motion that was pending at the time of the plaintiff's purported dismissal. There, the defendants moved to dismiss the case for failure to bring it to trial within five years. The trial court issued a tentative ruling granting the motion. The plaintiffs did not request a hearing within the time allotted but instead dismissed the case without prejudice. The trial court vacated the plaintiffs' dismissal and entered an order of involuntary dismissal. The appellate court affirmed. It first determined that, when the plaintiffs failed to request a hearing within the time allotted, the tentative ruling became a formal ruling determining the rights of the parties. (M & R Properties, supra, 11 Cal.App.4th at p. 901.) The court concluded that where there was a conflict between the plaintiffs' right to voluntary dismissal and the defendants' right to mandatory dismissal, the defendants' right was stronger, and a "plaintiff's right to seek a voluntary dismissal is cut off by a ruling granting a defendant's motion to dismiss the action for lack of prosecution." (Id. at p. 902.)
Thus, M & R Properties does not assist defendant in the case before us, because here the record fails to show any ruling on the section 425.16 motion at the time plaintiff filed his voluntary dismissal. (See fn. 2, ante.)
Defendant also cites Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765. There, the defendants separately filed motions for summary judgment. The trial court issued a tentative ruling granting the motions. (Id. at p. 768.) A hearing was held, during which the trial court granted the plaintiff's request for a continuance to submit additional evidence. Instead of submitting additional evidence, however, the plaintiff filed with the court clerk a request for dismissal of the case without prejudice. (Ibid.) The trial court ordered plaintiff's request for dismissal stricken and entered summary judgment in favor of the defendants. (Ibid.) The appellate court affirmed, concluding the plaintiff could not dismiss a case without prejudice after an adverse tentative ruling on defense summary judgment motions and after hearing on the motions commenced and was continued for the express and exclusive purpose of permitting the plaintiff to produce evidence on the summary judgment motions. (Id. at pp. 770-772.) "Logic and fairness dictate that the right of a plaintiff to voluntarily dismiss an action before the commencement of trial is restricted not only by statutory limitations and judicial constructions of the phrase 'commencement of trial' ; it is also limited by the dismissal procedure' s conjunction with other judicial procedures. The interrelationship between various provisions of the Code of Civil Procedure must be considered when interpreting any one provision so that statutory harmony is achieved. [Citations.] . . . [¶ ] . . . [¶] We will not eviscerate the summary judgment procedure by permitting a plaintiff to voluntarily dismiss his or her action after commencement of a summary judgment hearing and continuation for the express and exclusive purpose of permitting the plaintiff an opportunity to present opposition evidence. The court correctly determined that appellant was not entitled to dismiss its action without prejudice and reassert the same allegations that it could not, or would not, defend when challenged by respondents' summary judgment motions." (Id. at pp. 771-772.)
Thus, Mary Morgan expressly looked beyond statutory limitations and judicial constructions of section 581. We need not decide whether this approach is proper. Suffice it to say that in this case there was no similar manipulation by the plaintiff, delaying a court ruling on a defense motion in order to sneak in a voluntary dismissal. Allowing voluntary dismissal in the case before us does not offend notions of justice or respect for the
judicial process. Plaintiff acknowledges that he remains subject to a court order requiring him to pay defendant's attorney's fees under section 425.16, despite his dismissal of the case. Thus, we do not find Mary Morgan controlling. [FN 11]
Defendant cites our opinion in Cal-Vada Aircraft, supra, 179 Cal.App.3d 435. We there said: "'[I]t should . . . be clear that an action is not subject to dismissal where issues of law leading to its final determination have been submitted . . . . The essential thing is that the action be brought to a stage where final disposition is to be made of it.' [Citation.] Thus, while [the California Supreme Court] has not construed the nature of partial summary adjudication in context with the voluntary dismissal statute, it has held plaintiffs are barred from dismissal when a question of law which leads to the final determination, i.e., which will effectively dispose of the case, has been heard and determined accordingly." (Cal-Vada Aircraft, supra, 179 Cal.App.3d at pp. 443-444, original italics, quoting Berri v. Superior Court (1955) 43 Cal.2d 856, 859-860 [plaintiff could not voluntarily dismiss after demurrer was sustained without leave to amend, though no judgment entered yet].) Defendant argues that after the hearing, the matter was at a stage where final disposition was to be made of it, hence cutting off plaintiff's right to voluntary dismissal. However, we made this statement in Cal-Vada Aircraft in the context of deciding that an order granting summary adjudication as to some but not all issues in the case did not effectively dispose of the entire case, hence did not cut off the plaintiff's right to voluntary dismissal. Indeed, other comments in Cal-Vada Aircraft suggest the cutoff point for voluntary dismissal is the court's decision determining a dispositive question of law. (Cal-Vada Aircraft, supra, 179 Cal.App.3d at pp. 443, 444.) Thus, Cal-Vada Aircraft does not support defendant's position.
Defendant cites Kelley v. Bredelis (1996) 45 Cal.App.4th 1819. There, the plaintiffs filed a request for trial de novo following an adverse arbitration award. Two weeks before trial, the plaintiffs filed a request for dismissal with prejudice. The defendant moved to vacate the request for trial de novo and enter judgment on the arbitration award. The trial court granted the defense motions. The appellate court affirmed, holding the plaintiffs' request for dismissal of the case two weeks before trial constituted a repudiation of their request for a trial de novo and warranted the reinstatement of the arbitration award. Given the strong public policy favoring arbitration, the court saw no reason to allow a dissatisfied party to render the entire arbitration proceeding a judicial nullity by the simple procedural tactic of requesting a trial de novo, and then dismissing that request. (Id. at pp. 1826-1827.) That the dismissal was with prejudice made no difference. (Id. at p. 1827.) Here, no similar insult to the judicial system occurs.
Defendant argues that upholding plaintiff's voluntary dismissal frustrates the purpose of section 425.16, because it forces defendant to litigate whether she has secured a favorable termination for purposes of her separate malicious prosecution suit against plaintiff. However, even assuming for the sake of argument that defendant will face an increased burden in her malicious prosecution suit, defendant cites no authority indicating that the purpose of section 425.16 is to assist defendants when they switch roles and become plaintiffs seeking damages for malicious prosecution. The purposes of section 425.16 are adequately served by the defensive remedies provided in that statute -- striking the complaint and awarding attorney' s fees and costs to the defendant.
Defendant also argues that upholding plaintiff's voluntary dismissal frustrates the purpose of section 425.16, because it forces her to "re-litigate" the issue of whether she is entitled to recover her attorney's fees and costs, whereas such an award is automatic where the court rules in defendant' s favor on a section 425.16 motion. (§ 425.16, subdivision (c). [FN 12] However, as we explain post, we do not require relitigation of the fee/cost award.
We conclude plaintiff's voluntary dismissal was valid, hence the trial court lacked jurisdiction to strike the complaint.
We shall now consider and affirm the trial court's award of attorney's fees and costs to defendant.
Section 425.16, subdivision (c), footnote 12, ante, provides "a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs."
The December 17, 1997, order which is the subject of this appeal, stated "the court determines that each cause of action of the First Amended Complaint arises from acts of Shelly Carmon in furtherance of her right of free speech. The court further determines that it is not probable that plaintiff would prevail if the action were allowed to proceed." The court order, in addition to striking the complaint, also awarded defendant her attorney's fees and costs (without specifying any amount). The record on appeal contains no order concerning the amount. Defendant asserts some undisclosed amount was awarded in June 1998, but she gives no citation to the record and merely refers us to a footnote in her appellate brief which says nothing about this matter.
A few weeks before the filing of plaintiff's opening brief on appeal, the Fourth District held "where the plaintiff voluntarily dismisses an alleged SLAPP suit while a special motion to strike is pending, the trial court has discretion to determine whether the defendant is the prevailing party for purposes of attorney' s fees under . . . section 425.16, subdivision (c). In making that determination, the critical issue is which party realized its objectives in the litigation. Since the defendant's goal is to make the plaintiff go away with its tail between its legs, ordinarily the prevailing party will be the defendant. The plaintiff, however, may try to show it actually dismissed because it had substantially achieved its goals through a settlement or other means, because the defendant was insolvent, or for other reasons unrelated to the probability of success on the merits." (Coltrain v. Shewalter (1998) 66 Cal.App.4th 94, 107.) Another case (published between the filing of the respondent's and reply briefs in the appeal before us) disagreed with Coltrain concerning the effect of a plaintiff's reasons for voluntary dismissal, pointing out, e.g., that settlement of a SLAPP suit would merely mean that the plaintiff had succeeded chilling the exercise of constitutional rights. (Moore v. Liu (1999) 69 Cal.App.4th 745, 752.) Moore nevertheless agreed "a plaintiff's voluntary dismissal of a suit, after a section 425.16 motion to strike has been filed, neither automatically precludes a court from awarding a defendant attorney's fees and costs under that section, nor automatically requires such an award." (Moore v. Liu, supra, 69 Cal.App.4th at p. 753.) Under Moore, "the trial court's adjudication of the merits of a defendant's motion to strike is an essential predicate to ruling on the defendant's request for an award of fees and costs. An award of these expenses under section 425.16 is only justified when a defendant demonstrates that plaintiff's action falls within the provisions of subdivision (b) and the plaintiff is unable to establish a reasonable probability of success." (Id. at p. 752.)
Plaintiff's opening brief on appeal did not mention Coltrain. Defendant's brief cited Coltrain as requiring relitigation of the attorney's fee/cost award. Plaintiff in his reply brief, citing Coltrain and the newly-filed Moore, agreed the matter should be remanded for reconsideration as to whether an award of attorney's fees and costs is appropriate.
However, we see no need for remand in this case. In Coltrain, the defendants filed the section 425.16 motion, the plaintiffs voluntarily dismissed the case, and as a result the original section 425.16 motion was never ruled on. (Coltrain v. Shewalter, supra, 66 Cal.App.4th at p. 100.) However, the defendants then filed a motion for attorney's fees under section 425.16. After a hearing, the trial court granted the motion. (Ibid.) The appellate court affirmed, concluding that upon the plaintiffs' voluntary dismissal, a presumption arose that defendants were the prevailing parties, and plaintiffs presented no evidence dispelling the presumption. (Id. at p. 107.) The sole reason for the dismissal argued on appeal was that plaintiffs ran out of money. (Ibid.) The appellate court said no evidence supported this claim and, even if true, it merely showed the plaintiffs filed an action they could not afford to win, which arguably proved the case was a pure SLAPP suit. [FN 13] (Id. at pp. 107-108.) In Moore, the trial court declined to reach the merits of the section 425.16 motion because of the voluntary dismissal. The appellate court reversed and remanded for adjudication of the merits of the section 425.16 as a predicate for a fee/cost award.
Here, the trial court conducted a hearing and adjudicated the merits of the section 425.16 motion. The court order reflects the court determined the complaint arose from the exercise of free speech rights, and it was not probable that the plaintiff would prevail. On appeal, plaintiff does not propose any conceivable circumstance that would justify denial of a fee and cost award to defendant. He does not suggest that, if given the opportunity on remand, he could show his voluntary dismissal was motivated by some reason unrelated to the pending section 425.16 motion.
We conclude the trial court's adjudication of the merits of the section 425.16 motion support affirmance of the award of attorney's fees and costs to defendant, without the need for remand.
The December 17, 1997, order is reversed insofar as it strikes the complaint, but affirmed insofar as it awards attorney's fees and costs to defendant. Defendant shall recover her costs on appeal.
SIMS, Acting P.J.
We concur: DAVIS , J., and RAYE, J.