Viani v. Fair Oaks Estates CA3

Filed 8/20/24 Viani v. Fair Oaks Estates CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

MIRANDA VIANI et al.,

Plaintiffs and Appellants, C099457

v. (Super. Ct. No. 34-2020- 00280046-CU-PO-GDS) FAIR OAKS ESTATES, INC.,

Defendant and Respondent.

Miranda Viani, Robert Baker, and Michael Baker (collectively plaintiffs) sued Fair Oaks Estates, Inc. (Fair Oaks Estates or defendant), operator of an assisted living facility, asserting causes of action for wrongful death, negligence, and breach of contract arising from the death of Debra Baker (the decedent). After the trial court granted defendant’s summary adjudication motion with respect to the wrongful death and negligence claims, plaintiffs’ attorney obtained dismissal of the entire action without prejudice as a strategic attempt to appeal the summary adjudication decision. In an unpublished decision, this court dismissed that appeal for lack of appellate jurisdiction. (Viani v. Fair Oaks Estates, Inc. (Apr. 18, 2023, C094672) [nonpub. opn.].) Thereafter, plaintiffs filed a motion in the trial court to set aside their voluntary dismissal of the lawsuit under Code of Civil Procedure section 473.1 The trial court denied the motion.

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

1

Plaintiffs now seek to appeal from the denial of their motion to set aside the dismissal, contending the trial court was required to grant them relief (1) under the mandatory and discretionary provisions of section 473, subdivision (b), or (2) because their attorney lacked authority to dismiss the lawsuit. But the order denying the motion to set aside the dismissal is not an appealable order. Accordingly, we will dismiss this appeal. BACKGROUND Plaintiffs sued Fair Oaks Estates based on an alleged injury sustained by the decedent while a facility employee moved her. Plaintiffs alleged the injury caused the decedent’s health to suddenly deteriorate, resulting in her death eight days later. The trial court granted a motion by Fair Oaks Estates for summary adjudication as to the negligence and wrongful death causes of action. Rather than proceed to trial on the remaining breach of contract claim, plaintiffs’ attorney sought to challenge the summary adjudication decision in an appeal to this court. He did so by voluntarily dismissing the entire action without prejudice. He then appealed from that voluntary dismissal. This court dismissed the appeal, concluding “a voluntary dismissal without prejudice is not a final judgment appealable on the merits.” (Viani v. Fair Oaks Estates, Inc., supra, C094672.) Plaintiffs then filed in the trial court a motion to set aside the voluntary dismissal under section 473. Plaintiffs argued the trial court should set aside the dismissal because plaintiffs did not know the dismissal would occur or the impact it would have on their lawsuit, and thus their attorney lacked authority to dismiss the case on their behalf. Plaintiffs also argued the dismissal should be set aside under the discretionary and mandatory provisions of section 473, subdivision (b), because the dismissal resulted from their attorney’s mistaken belief that dismissing the case would allow them to appeal the summary adjudication ruling, and counsel submitted a declaration accepting