United Shippers, Inc. v. Superior Court

Opinion

FEINBERG, J.

The facts are simple. Petitioner filed a complaint in the court below. Real parties in interest (real parties) demurred. The

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demurrer had a chequered history but, suffice it to say, that on January 15, 1979, it was argued. On January 19, 1979, the clerk of the superior court filed a dismissal of the action without prejudice, upon a written request therefor by petitioner, pursuant to Code of Civil Procedure section 581, subdivision l.

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Two days later, respondent superior court issued an order restraining the clerk from proceeding with the dismissal, i.e., entering it upon the judgment roll. Shortly thereafter, petitioner sought relief by way of an extraordinary writ from this court. Its petition was denied as “premature.” Thereafter, respondent held a hearing to determine whether it had jurisdiction to rule on the demurrer, i.e., had the action been “dismissed.” Respondent concluded it had jurisdiction and thereafter sustained the demurrer without leave to amend. Ultimately, respondent entered a judgment of dismissal, following which, this petition for prohibition or, in the alternative, certiorari or mandate was filed.

Real parties contend that at the hearing on January 15, 1979, the demurrer was submitted and the court had made a “tentative” ruling. Petitioner contends otherwise. In our view, this issue is irrelevant in determining whether petitioner had an absolute right to a dismissal on January 19, 1979. We shall assume, therefore, that real parties are correct and that the demurrer had been submitted prior to petitioner’s request for a dismissal.

Does a plaintiff have the absolute right to dismiss an action after a demurrer to his complaint has been submitted to the court for decision, assuming that in all other aspects such a dismissal complies with the conditions imposed by section 581, subdivision 1?

Our answer is that the plaintiff does have such a right.

Section 581, subdivision 1 provides in relevant part as follows: “An action may be dismissed in the following cases: [If] 1. By plaintiff, by written request to the clerk, filed with the papers in the case,... at any time before the