Reitz-Diaz v. Nissan North America CA3

Filed 2/23/16 Reitz-Diaz v. Nissan North America CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

MARIA REITZ-DIAZ et al.,

Plaintiffs and Appellants, C077814

v. (Super. Ct. No. 39201100265023CUPASTK) NISSAN NORTH AMERICA, INC.,

Defendant and Respondent. DISMISSAL BY OPINION

Maria Reitz-Diaz, Joseph Diaz, and Julian Diaz (plaintiffs) appeal from a judgment dismissing their product liability claims against Nissan North America, Inc.1 Plaintiffs sued Diane Murdock (and 20 Doe defendants) for negligently colliding with

1 Due to their shared surname, we refer to individual members of this family by their first names. In addition to his individual capacity, Joseph appears as guardian ad litem for Julian, who is a minor. We refer to Nissan North America, Inc., as Nissan.

Plaintiffs also named Nissan Trading Corporation, Nissan Automotive Inc., and Stockton Nissan in amended complaints. In its respondent’s brief, Nissan states that Nissan Trading Corporation and Nissan Automotive Inc. were never served. Plaintiffs do not dispute the lack of service in their reply brief. In any event, these entities are not parties to this appeal.

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their Nissan automobile. After plaintiffs and Murdock reached a settlement agreement, Maria and Joseph dismissed their action with prejudice. Despite Maria and Joseph’s dismissal, plaintiffs subsequently filed amended complaints that added products liability claims and named Nissan as one of the Doe defendants. As to Julian’s claims against Nissan, he filed a voluntary dismissal without prejudice before the trial court entered the judgment from which he seeks review. Nissan contends we must dismiss the appeal because the trial court lacked jurisdiction over the products liability claims after plaintiffs filed their voluntary dismissals. We agree and dismiss the appeal. FACTUAL AND PROCEDURAL HISTORY In June 2011, plaintiffs filed a complaint that claimed Diane Murdock and 20 Doe defendants were driving or acting negligently in colliding with plaintiff’s automobile on February 2, 2011. Maria and Julian claimed physical injuries resulting from the accident, and Joseph asserted loss of consortium. In July 2013, Maria and Joseph dismissed their claims against Murdock with prejudice. There are two requests for dismissal with prejudice. The first filed and entered on July 10, 2013 added the dismissal “is effective as to Maria Reitz-Diaz & Joseph Diaz as to Diane Murdock and is not effective as to any other defendant or prospective defendant.” The second filed and entered on July 31, 2013 dismissed the complaint with prejudice as to “Maria Reitz-Diaz & Joseph Diaz, individually, Each party to bear own costs/atty fees.” At the time of dismissal no claim other than negligence was asserted against Murdock and none of the Doe defendants had been substituted for known defendants. On August 7, 2013, Maria, Joseph, and Julian filed a “Doe amendment to the complaint” that added a new cause of action for product liability and named Nissan as Doe defendant number two. Nissan demurred and the trial court sustained the demurrer with leave to amend on grounds the product liability cause of action was untimely and the