Ashland Chemical Co. v. Provence

Opinion

BROWN (Gerald), P. J.

Ashland Chemical Company sued Ross Provence, Lee Epstein, and Ceramics International, Inc., on a promissory note and guaranty contract. The superior court sustained Provence’s demurrer without leave to amend and Ashland prematurely appealed. Then, realizing the court had not yet entered an appealable judgment, Ashland asked the clerk to dismiss the complaint with prejudice “only for the purpose of expediting appeal and in no way indicating] agreement or acquiesence

[sic]

with the Court’s ruling.” Ashland appeals the resulting judgment of dismissal.

Provence contends Ashland may not appeal after voluntarily dismissing its complaint

(Parenti

v.

Lifeline Blood Bank

(1975) 49

[793]

Cal.App.3d 331 [122 Cal.Rptr. 709]). However, many courts have allowed appeals by plaintiffs who dismissed their complaints after an adverse ruling by the trial court, on the theory the dismissals were not really voluntary, but only done to expedite an appeal. (See cases collected in Annot., 23 A.L.R.2d 664, 673-675.) Here Ashland dismissed its complaint after the superior court sustained Provence’s demurrer without leave to amend. Moreover, it did so only to obtain a final judgment so it could contest the court’s ruling. Under these circumstances, Ash-land’s request for dismissal was tantamount to a request to enter judgment on Provence’s demurrer. We allow the appeal.

Ashland’s complaint, filed April 22, 1980, alleges for a first cause of action: Ashland is a Kentucky corporation; Ceramics is a California corporation; Provence and Epstein are California residents; Provence, Epstein and Ceramics executed a promissory note favoring Ashland on March 1, 1975, in Kentucky; Provence, Epstein and Ceramics promised to pay the note in Kentucky by December 31, 1975, but did not; the note said it was “governed by and construed in accordance with the laws of the Commonwealth of Kentucky”; and Kentucky’s statute of limitations on promissory notes is 15 years. Ashland alleges in its second cause of action on January 24, 1974, in Kentucky, Provence and Epstein guaranteed in. writing all Ceramics’ future debts.