2016-00194537-CU-OE

Julie Holmes vs. Kong’s Fashionia, Inc.

Nature of Proceeding: Hearing on Demurrer to the 2nd Amended Complaint

Filed By: Kim, Haewon

Defendants Kong’s Fashionia, Inc. and Joon Young Kong’s demurrer to Plaintiff Julie Holmes’s second amended complaint (“SAC”) with regard to individual defendant Joon Young Kong is dropped as moot. Plaintiff filed a request for dismissal as to Defendant Joon Young Kong on November 21, 2018.

The entry of the dismissal without prejudice had the effect of removing the Court’s jurisdiction in this matter. Plaintiff was entitled to dismiss the action “at any time before the actual commencement of trial.” (Code Civ. Proc. §581(b)(1).) Pursuant to Code of Civil Procedure section 581, a plaintiff may voluntarily dismiss an action, “with or without prejudice,” at any time before the “actual commencement of trial.” (§ 581(b)(1),

(c).) Indeed, to be clear, where the plaintiff has filed a voluntary dismissal of an action the court is without jurisdiction to act further, and any subsequent orders of the court are simply void. (Gherman v. Colburn (1971) 18 Cal.App.3d 1046, 1050; Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 78.)

The Court acknowledges the right of a plaintiff to voluntarily dismiss an action before commencement of trial pursuant to section 581 is not absolute. There are statutory exceptions to a plaintiff’s right of voluntary dismissal, and other limitations have evolved through the courts’ construction of the term “commencement of trial.” The meaning of the term “trial” is not restricted to jury or court trials on the merits, but includes other procedures that effectively dispose of the case. (Groth Bros. Oldsmobile v. Gallagher (2002) 97 Cal. App. 4th 60, 66.) Similarly, a plaintiff could not defeat a defendant’s motion for a terminating discovery sanction by a voluntary dismissal filed just before the sanction hearing, as such would undermine the discovery statutes. ( Hartbrodt v. Burke, (1996) 42 Cal.App.4th 168, 175; see also Cravens v. State Bd. of Equalization, (1996) 52 Cal. App. 4th 253, 256-257 [having failed to file timely opposition, dismissal one day prior to hearing summary judgment motion ineffective].) Yet, none of these exceptions apply here. No tentative ruling issued, merely a continuance of the demurrer.

While the Court notes the dismissal request was without prejudice and Defendants request the Court to enter a ruling dismissing Defendant Joon Young Kong with prejudice, the Court declines to address this argument, as it is without jurisdiction to

act.