Dr. Farzan Alamirad D.D.S., Inc. v. Sherbank Azizi etc. CA2/4

Filed 11/19/20 Dr. Farzan Alamirad D.D.S., Inc. v. Sherbank Azizi etc. CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

DR. FARZAN ALAMIRAD B296752 D.D.S., INC., (Los Angeles County Plaintiff and Appellant, Super. Ct. No. BS174763) v.

SHERBANK AZIZI DENTAL CORPORATION,

Defendant and Respondent.

APPEAL from an order of the Superior Court of Los Angeles County, Patricia Nieto, Judge. Reversed and remanded. Law Offices of Geoffrey G. Melkonian, Geoffrey G. Melkonian for Plaintiff and Appellant. No appearance for Defendant and Respondent.

INTRODUCTION

Farzan Alamirad filed his initial complaint against his former employer, Sherbank Azizi Dental Corporation d/b/a Green Dental & Orthodontics (Sherbank Azizi), erroneously sued as Green Dental & Orthodontics, Inc., in September 2015 (the “first action”). Sherbank Azizi answered the complaint and filed a cross-complaint for fraud and breach of contract. The parties later agreed to arbitrate their claims. Alamirad never commenced arbitration, however. On November 22, 2017, Alamirad voluntarily dismissed his claims without prejudice, and Sherbank Azizi dismissed its cross-complaint without prejudice. On December 17, 2018, Alamirad re-filed his claims, this time styling the action as a petition to compel arbitration on behalf of his company, Dr. Farazan Alamirad D.D.S., Inc. The trial court denied the petition on the sole ground that Alamirad was barred from filing a petition alleging the same claims as the first action. The trial court reasoned that, despite Alamirad’s contention that the first action was dismissed without prejudice, a party may not unilaterally dismiss the entire action without prejudice once a cross-complaint has been filed under Code of Civil Procedure section 581, subdivision (i).1 Unfortunately, however, the parties failed to provide the trial court with all of the relevant information. They neglected to direct the trial court to a November 22, 2017 minute order (the “Minute Order”) in the first action stating the action was dismissed by both parties without prejudice: “Defendant dismisses cross-complaint without prejudice. . . . Plaintiff’s claims are dismissed without prejudice.” Azizi claims the Minute Order was misplaced and not in the court file at the time of the hearing on the petition. The Minute Order apparently has since been found, and appears in the record on appeal. We therefore reverse