Datner v. Mann Theatres Corp.

Opinion

DALSIMER, J.

Appellant appeals from an order vacating and setting aside a dismissal which had been requested by appellant and entered by the clerk. Appellant also appeals from a subsequent order sustaining without leave to amend a demurrer filed by respondent to appellant’s complaint.

On April 16, 1981, appellant filed his complaint against respondent and others who are not parties to this appeal. On September 21, 1981, respondent filed a demurrer and motion to strike together with a notice of hearing thereon. On October 22, 1981, pursuant to Code of Civil Procedure

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section 581, subdivision 1, appellant filed a request for dismissal of the entire action as to all defendants without prejudice, and the dismissal was entered on the register of actions on that date. The declaration of respondent’s counsel filed with a supplemental memorandum of points and authorities in support of the demurrer avers that on the day before the hearing scheduled for the demurrer, respondent’s secretary received a telephone call from counsel for appellant advising that said counsel had caused the request for dismissal to be filed and that the hearing on the demurrer had been canceled; that thereafter, respondent’s counsel, learning that the demurrer had been taken off calendar by the clerk in Department D of the West District of the Los Angeles Superior Court, went to the court clerk’s office and contacted a

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supervisor; and that, upon verifying that the dismissal had been entered on the register of actions, respondent’s counsel complained of this action and was assured by the supervisor that she would take corrective action. We infer from the record that the corrective action taken was the preparation by the supervisor of a certificate of the clerk that the dismissal was entered by mistake and the execution by Judge Rafeedie of an order, based upon such certificate, vacating and setting aside the dismissal.

Appellant contends herein that the superior court was without jurisdiction to set aside appellant’s voluntary dismissal of the action and thus that the court was, a fortiori, without jurisdiction to thereafter rule on the demurrer filed by respondent. As we agree with these contentions, we reverse.