Filed 10/9/19 Estrada v. North Kern State Prison CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

NICK ESTRADA,

Plaintiff and Appellant,

v.

NORTH KERN STATE PRISON,

Defendant and Respondent.

F077871

(Super. Ct. No. BCV-17-101449 SDS)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Stephen D. Schuett, Judge.

Nick Estrada, in pro. per., for Plaintiff and Appellant.

Xavier Becerra, Attorney General, Monica N. Anderson, Assistant Attorney General, Neah Huynh and Misha D. Igra, Deputy Attorneys General, for Defendant and Respondent.

-ooOoo-

Appellant Nick Estrada is a former prison inmate who is representing himself in this lawsuit. Estrada contends the trial court erred when it considered and sustained the demurrer to his complaint instead of granting his motion for voluntary dismissal. The Attorney General’s office agrees, contending this court “should vacate the judgment and direct the superior court to grant Estrada’s motion for voluntary dismissal.” Based on our review of the appellate record and briefs, we concur in the reasoning presented by the parties.

We therefore reverse the judgment and remand with directions to grant Estrada’s motion for voluntary dismissal.

FACTS AND PROCEEDINGS

This litigation began in June 2017 when Estrada submitted a civil complaint and request to waive court fees to the Kern County Superior Court. In October 2017, Estrada filed a first amended complaint.

In April 2018, defendant North Kern State Prison filed a demurrer. Defendant asserted (1) it was immune from liability for any malpractice by an employee in providing medical care to an inmate and (2) the narrow exception of Government Code section 845.6 relating to the failure to summon immediate medical care did not apply in this case. The demurrer was set to be heard on May 15, 2018.

On May 8, 2018, a week before the scheduled hearing on the demurrer, Estrada delivered a motion for voluntary dismissal without prejudice to prison officials for mailing to the superior court. It was mailed to the court the next day.

The May 15, 2018, hearing was scheduled for 8:30 a.m. Estrada appeared on his own behalf and defendant appeared through counsel. Both sides used CourtCall. The parties agree Estrada informed the trial court he had mailed a motion for dismissal to the court and Estrada asked that the dismissal be entered. The court asked the courtroom clerk if the papers had been received and the clerk stated nothing was on record. The court proceeded with the hearing and announced it would sustain defendant’s demurrer without leave to amend.

Later that morning, at 9:23 a.m., the trial court denied Estrada’s motion for voluntary dismissal. The time and date of the court’s order was stamped on the first page of the motion.

Within a week, Estrada mailed a motion to the trial court requesting the court to defer its decision on the demurrer and rule on Estrada’s motion to dismiss. This motion was filed by the trial court on May 24, 2018.

On June 15, 2018, the court signed and filed an order sustaining the demurrer without leave to amend. On July 3, 2018, the court signed and filed a judgment of dismissal stating the action was dismissed with prejudice as to defendant. On July 5, 2018, the trial court also filed an order dismissing action. Estrada filed a timely appeal.

DISCUSSION

I. LEGAL PRINCIPLES

A. Prison Delivery Rule

The prison delivery rule “provides that the time of the filing constructively occurs, as a matter of law, when the self-represented prisoner properly delivers the notice [of appeal] to the prison authorities for forwarding to the superior court clerk. As such, the rule does not subvert the policies of speedy resolution and finality of judgment that underlie the jurisdictional requirement of a timely appeal. The rule simply ensures that the requirement has the same practical effect in all cases.” (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 120–121.) In Silverbrand, the Supreme Court extended the prison delivery rule, previously applied only in criminal cases, to the filing of notices of appeal in civil cases. The court noted the United States Supreme Court rules apply the federal “ ‘prison mailbox rule’ ” to the filing of any document without distinguishing between civil and criminal cases. (Id. at p. 122; see Cal. Rules of Court, rule 8.25(b)(5).)

The prison delivery rule for notices of appeal in civil actions has been extended to other types of documents filed in civil cases. For example, in Moore v. Twomey (2004) 120 Cal.App.4th 910, the appellate court applied the prison delivery rule and concluded “a civil complaint by a pro se prisoner litigant should be deemed filed when it is delivered to prison authorities for forwarding to the superior court.” (Id. at p. 918.) In Bontilao v. Superior Court (2019) 37 Cal.App.5th 980, the appellate court applied the prison delivery rule and determined the plaintiff’s challenge to a superior court judge under Code of Civil Procedure section 170.6 was untimely.

Based on the foregoing authority, we conclude the prison delivery rule applies to Estrada’s motion for voluntary dismissal. The parties have reached the same conclusion.

B. Timely Voluntary Dismissal

A plaintiff has the right to dismiss an action, with or without prejudice, if the dismissal is filed “prior to the actual commencement of trial.” (§ 581, subd. (c).) “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.” (§ 581, subd. (a)(6).) Case law broadly interprets the statutory term actual commencement to include circumstances in which a pretrial procedure has effectively disposed of a case or made an adverse judgment “ ‘inevitable.’ ” (Gogri v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255, 261–262, 263.) For instance, a trial is deemed to have commenced upon the sustaining of a demurrer without leave to amend (Bank of America, N.A. v. Mitchell (2012) 204 Cal.App.4th 1199, 1210) and upon the issuance of a tentative ruling sustaining an unopposed demurrer without leave to amend (Groth Bros. Oldsmobile, Inc. v. Gallagher (2002) 97 Cal.App.4th 60, 73).

In contrast, the filing of an order sustaining a demurrer with leave to amend does not preclude a plaintiff from filing a voluntary dismissal before the time to amend expires. (Parsons v. Umansky (1994) 28 Cal.App.4th 867, 871–872.) Also, issuance of a notice that the court is considering the imposition of terminating sanctions does not preclude the plaintiff from filing a voluntary dismissal prior to the hearing. (Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 207; see Lewis C. Nelson & Sons, Inc. v. Lynx Iron Corp. (2009) 174 Cal.App.4th 67, 80 [plaintiff’s subjective lack of good faith in seeking a dismissal does not, by itself, terminate the statutory right to dismiss without prejudice].)

When a voluntary dismissal is timely filed under section 581, the trial court is without jurisdiction to act further other than to award costs and attorney fees. (Gogri v. Jack in the Box Inc., supra, 166 Cal.App.4th at p. 268.) Orders entered by a court that lacks jurisdiction following the filing of a voluntary dismissal are void. (Paniagua v. Orange County Fire Authority (2007) 149 Cal.App.4th 83, 89.)

II. ANALYSIS

Under California’s prison delivery rule, the trial court is deemed to have received and filed Estrada’s motion for voluntary dismissal on May 8, 2018, when Estrada delivered it to a prison official for mailing to the superior court. Pursuant to section 581 and the case law interpreting that statute, Estrada was entitled to have his motion for dismissal granted. Also, the trial court lacked jurisdiction to hear and sustain the demurrer. As a result, the orders and judgment filed by the trial court are void. (Paniagua v. Orange County Fire Authority, supra, 149 Cal.App.4th at p. 89.)

Therefore, as stated in the respondent’s brief filed by the Attorney General’s office, this court “should vacate the judgment and direct the superior court to grant Estrada’s motion for voluntary dismissal.”

DISPOSITION

The trial court is directed to (1) vacate the July 3, 2018, judgment of dismissal; (2) vacate its June 15, 2018, order sustaining the demurrer without leave to amend; (3) vacate its July 5, 2018, order dismissing action with prejudice; and (4) grant Estrada’s motion for voluntary dismissal without prejudice.

The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278.)