Friday, December 20, 2013

The Appeal Clock Runs from a Voluntary Dismissal

Dattani v. Lee, No. A13852 (D1d3, as modified Jan 14, 2013)

After the trial court granted summary adjudication in favor of defendant, plaintiffs filed a notice of voluntary dismissal of the remainder of their claims without prejudice. Almost six months later, the court signed a proposed defense judgment prepared by plaintiffs’ counsel. Plaintiffs filed a notice of appeal three weeks later. The court of appeal dismisses the appeal as untimely. An appeal of the summary adjudication was not barred by the subsequent voluntary dismissal, because, unlike in the recent Kurwa v. Kislinger, 57 Cal. 4th 1097 (2013), the appeal was not rendered unripe by an agreement to toll the statute of limitations. But when combined with the summary adjudication order, plaintiffs’ voluntary dismissal of the remainder of their claims ended the case and was effective as a final appealable judgment as soon as the dismissal was submitted to the court.  Since the notice of appeal was filed more than 180 days after the dismissal, the appeal was untimely under Rule of Court 8.104(a)(1)(C).

Appeal dismissed.

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