Ayala v. Gutierrez CA2/2

Filed 9/3/13 Ayala v. Gutierrez CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

MABEL AYALA, B243006

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. BC451204) v.

DAVID GUTIERREZ et al. ,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County. Ralph W. Dau, Judge. Appeal treated as petition for extraordinary writ. The petition for extraordinary writ is granted. Order vacated and remanded with directions.

Law Offices of Jina A. Nam & Associates, Jina A. Nam for Plaintiff and Appellant.

No appearance for Defendants and Respondents. ___________________________________________________

While several of defendants’ motions were pending, plaintiff voluntarily dismissed her complaint with prejudice. Following the dismissal, the trial court ruled on defendants’ motions. Plaintiff attempts to appeal from the order granting the motions. Although the order is not appealable, we exercise our discretion to treat plaintiff’s appeal as a petition for an extraordinary writ. We conclude that the trial court lacked jurisdiction to grant the motions. We therefore vacate the order and direct that the action be dismissed with prejudice. BACKGROUND Plaintiff and appellant Mabel Ayala brought suit against various defendants, including David Gutierrez and Old Mission Financial, Inc. (Old Mission), in December 2010. In April 2012, Gutierrez and Old Mission filed a motion for leave to file a cross- complaint against Ayala. A week later they filed a motion to compel production of documents and a motion to compel further answers to form interrogatories. Each of these three motions was set to be heard on May 30, 2012. On May 30, before defendants’ motions were heard, Ayala filed a dismissal of the entire action with prejudice. At the hearing on the motions, Ayala’s attorney informed the trial court of the voluntary dismissal. Nevertheless, the trial court entertained oral argument and took defendants’ motions under submission. Later that day it issued an order granting the discovery motions and the motion for leave to file a cross-complaint. Furthermore, in connection with the discovery motions, it ordered that plaintiff pay Gutierrez and Old Mission $760.50. DISCUSSION Plaintiff attempts to appeal from the order granting the discovery motions and leave to file the cross-complaint. Generally, an appeal may not be taken following a voluntary dismissal. (Gutkin v. University of Southern California (2002) 101