Filed 7/24/19

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

GREGORY A. COLE,

Plaintiff and Respondent,

v.

BETTY HAMMOND et al.,

Defendants and Appellants.

 B292331

 (Los Angeles County

 Super. Ct. No. BC466925)

APPEAL from an order of the Superior Court of 

Los Angeles County, Maria E. Stratton, Judge. Reversed and 

remanded with instructions.

Solomon T. Harris for Defendants and Appellants.

Gieleghem Law Office and Neil Gieleghem for Plaintiff and 

Respondent.

* Pursuant to California Rules of Court, rules 8.1100 and 

8.1110, this opinion is certified for publication with the exception 

of part I of the Discussion section.
2

INTRODUCTION

In a prior action, Neil Gieleghem and respondent Gregory 

Cole, both attorneys, obtained a $500,000 judgment against 

Anthony Sheen, a landlord, based on unpaid fees for legal 

services they rendered to Sheen. In satisfaction of that 

judgment, Cole and Gieleghem obtained an assignment of rent 

from Sheen for a residential property. 

Appellants Betty and Ruth Hammond (the Hammonds) 

were Sheen’s tenants. Cole and Gieleghem demanded that the 

Hammonds pay their rent directly to them pursuant to the 

assignment. The Hammonds refused, and Cole sued, alleging 

breach of contract and related claims. Gieleghem appeared as 

Cole’s attorney in the lawsuit.

A few months after the initiation of the lawsuit in 2011, the 

Hammonds began paying their rent to Cole and Gieleghem. 

After the parties conducted some initial discovery, the case 

languished for several years. In January 2018, the Hammonds 

moved for mandatory dismissal of the action for failure to bring 

the case to trial within five years, pursuant to Code of Civil 

Procedure section 583.360.1 A mandatory dismissal would be 

considered a determination on the merits entitling the prevailing 

party to attorney fees under Civil Code, section 1717. However, 

at the hearing on the motion, Cole sought to voluntarily dismiss 

the case without prejudice pursuant to section 581, subdivision 

(b)(1). The court granted Cole’s oral motion and dismissed the 

case. The court subsequently denied the Hammonds’ motion to 

vacate the dismissal. This appeal followed. 

1 All further statutory references are to the Code of Civil 

Procedure unless otherwise indicated.
3

The parties dispute whether this appeal is timely. We 

conclude that it is. Substantively, the Hammonds contend the 

trial court erred in granting Cole’s motion for voluntary 

dismissal, arguing that they had the right to a mandatory 

dismissal and the resulting attorney fees. We agree and 

therefore reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

I. Underlying Dispute

The Hammonds are elderly sisters who rented a residence 

on South Spaulding Avenue in Los Angeles, California (the 

Spaulding property). They originally signed a monthly rental 

agreement in 2001 with owner Dolores Quinlock Sheen. After 

she died, the Spaulding property became an asset of a trust (the 

Sheen trust), for which Anthony Sheen served as the trustee. 

As trustee, Sheen was involved in multiple probate 

lawsuits that arose out of disputes related to the trust estate. 

Cole and Gieleghem provided legal services to Sheen in 

connection with the probate litigation. In January 2009, Cole 

and Gieleghem sued Sheen for unpaid attorney fees. That 

matter, Cole v. Sheen (LASC Case No. LC084204) (the fees 

action), resulted in a judgment against Sheen and in favor of Cole 

and Gieleghem for almost $500,000. 

On July 26, 2011, the court in the fees action granted an ex 

parte application submitted by Cole and Gieleghem ordering 

Sheen to “assign immediately to Judgment Creditors any and all 

interest the Judgment Debtor has in, and any payments made in 

connection with, the following assets of the Sheen Trust to the 

extent necessary to satisfy” the judgment against Sheen (the 

assignment order). As relevant here, the court ordered Sheen to 
4

assign “[a]ll rents from the tenants” of the Spaulding property, 

starting July 1, 2011. 

Gieleghem notified the Hammonds of the assignment order 

in a letter dated July 26, 2011. He further stated that under the 

assignment order, the Hammonds were “legally required to pay 

all rents . . . to Judgment Creditors, rather than to the 

Trustee/landlord.” The Hammonds contend they responded by 

asking Cole and Gieleghem for verification of their right to 

receive the rent, but that request was refused. The Hammonds 

also contacted Sheen and his attorney for instructions on how to 

proceed. 

The parties do not dispute that at the end of July 2011, the 

Hammonds paid their August rent of $1,400 to Wells Fargo (as a 

purported superior lienholder) at the direction of Sheen’s 

attorney. The following two months, the Hammonds paid their 

rent to the Sheen trust, at Sheen’s direction. From November 

2011 onward, they paid their rent to Cole and Gieleghem. 

II. Cole’s Lawsuit Against the Hammonds

After the Hammonds failed to pay their August 2011 rent 

to Cole and Gieleghem, Cole filed the instant lawsuit on August 

4, 2011, alleging claims against the Hammonds for breach of 

contract and common counts. Gieleghem appeared on the 

complaint as the attorney of record for Cole, not as a party.2 In 

the complaint, Cole alleged that the rents on the Spaulding 

property were assigned to him pursuant to the assignment order, 

that the Hammonds were given notice of that order at the time, 

2 In response to the Hammonds’ claim that he was an 

indispensable party, Gieleghem asserted that he assigned his 

interest in the judgment at issue to Cole three days before filing 

this lawsuit. 
5

but they “failed and refused to pay said rents to Cole.” He alleged 

damages of $495,025, the full amount of the judgment against 

Sheen in the fees action. 

The Hammonds, in propria persona, filed a general denial, 

contending that their “contract is with the landlord,” and 

“[u]nless Court tells us otherwise payment goes to landlord.” 

In September 2011, Cole filed a notice of related case, 

listing the fees action as potentially related to the instant case. 

The court issued a minute order relating the cases on November 

3, 2011. The court noted that the fees action was previously 

related to the probate case, with the latter designated as the lead 

case. The court found that the current case against the 

Hammonds was “an action to enforce the same order” at issue in 

the fees action. Thus, the court concluded that the cases were 

related within the meaning of California Rules of Court, rule 

3.300,3 “since the claims arise out of an order issued by the 

probate court and concern the same claim against Trust 

property.” 

The parties began discovery. Cole deposed the Hammonds 

in late 2011 and conducted a physical inspection of their unit in 

April 2012.4 In January 2013, Cole filed a substitution of 

attorney, stating that he would represent himself. Cole took no 

further action in this matter until 2018, after the Hammonds 

filed the motion giving rise to the instant appeal. 

III. Motion to Dismiss

In January 2018, the Hammonds filed a motion to dismiss 

for failure to bring the matter to trial within five years, pursuant 

3 All further references to court rules are to the California 

Rules of Court unless otherwise indicated.

4 The Hammonds retained counsel in October 2011. 
6

to section 583.360. They pointed out that the case had been 

pending since August 2011, no actions had been taken since early 

2013, and no trial date was set. They also declared that the 

parties had not stipulated to extend the five-year deadline, and 

the case had never been stayed. The Hammonds therefore 

argued that dismissal was mandatory under section 583.360. 

The motion was set for hearing on March 28, 2018.

On March 15, 2018, Cole filed an opposition to the motion 

to dismiss, with Gieleghem purporting to act as Cole’s attorney. 

In the opposition, Cole argued that appeals filed in the related 

cases operated to stay all of the cases related to the Sheen trust, 

including this case. Cole’s motion included a list of nine appeals, 

“at least four (4)” of which “were pending during part of the time 

period at issue on Defendants’ Motion.” The four purportedly 

relevant appeals listed by Cole included one from the fees action 

and three from the probate litigation. Cole asserted that stays in 

those cases operated to toll the expiration of the five-year period 

in this case. 

The Hammonds filed their reply on March 21, 2018. They 

objected that the opposition was untimely and that Gieleghem 

was no longer counsel of record. They also argued that none of 

the appeals operated to stay their case. Moreover, they noted 

that only one of the listed appeals was even “superficially related” 

to the instant case and would not allow Cole to avoid the 

application of the five-year rule. 

Cole appeared without counsel at the March 28, 2018 

hearing.5 At the start of the hearing, Cole told the court that he 

5 Cole did not offer an explanation at the hearing for his 

counsel’s failure to appear, nor did he request to represent 

himself despite filing an opposition brief through counsel. 
7

wanted to file a voluntary request for dismissal of the case. The 

court suggested that Cole “make an oral motion and I will grant 

it.” After Cole confirmed his desire to “voluntarily dismiss this 

action,” the court stated it was granting Cole’s motion and 

dismissing the case without prejudice. Counsel for the 

Hammonds objected that the dismissal was without prejudice 

and noted that the “court should be concerned about abuse of 

process.” 

There is no record of a written order entered as a result of 

this hearing, or any notice of entry of such an order served on the 

Hammonds. Instead, Cole submitted a form request for 

voluntary dismissal without prejudice on March 28, 2018. The 

form was signed by Cole (not Gieleghem). The request was 

served on the Hammonds on March 28, 2018. The dismissal was 

entered and filed by the court on May 8, 2018. 

IV. Motion to Vacate Prior Order of Dismissal

On May 9, 2018, the Hammonds filed a motion to “vacate, 

set aside, and correct the court’s March 28, 2018 – announced 

[sic] order granting plaintiff’s request to dismiss this case.” They 

argued that they were entitled to attorney fees under Civil Code, 

section 1717, pursuant to the prevailing party provision in their 

lease and that Cole’s oral motion to dismiss was an attempt to 

avoid those fees. Further, they contended that they were entitled 

to mandatory dismissal and that Cole therefore no longer had the 

right to voluntarily dismiss his case. 

 

Unsurprisingly, given the shifting appearances between Cole and 

Gieleghem in this case, the court may have incorrectly believed 

Cole was counsel rather than a party, as the judge remarked 

during the hearing that Cole had to submit a filing electronically 

“because you’re counsel.” Cole did not correct this statement.
8

Gieleghem, once again appearing as counsel for Cole, filed 

an opposition to the motion on May 24, 2018. Cole argued that 

the motion was “mis-captioned” as a motion to vacate, and was 

instead an improper motion for reconsideration that did not meet 

the requirements of section 1008. Specifically, he contended the 

motion was untimely and did not set forth any new facts or law 

justifying reconsideration. He also asserted that he had “an 

absolute right to dismiss the case” and requested sanctions 

against the Hammonds and their counsel. He also contended 

that he dismissed the case (in 2018) because “his litigation 

objectives had been met” – specifically, once the Hammonds 

started paying the rent to him (in 2011), “there was no need to 

continue to actively litigate the case.”

In their reply, the Hammonds argued that their motion was 

proper as a request for the court to vacate and correct the 

judgment pursuant to sections 663 and 473, subdivision (d). 

They also argued that the motion was timely under section 1008, 

as they had never been served written notice of entry of the 

court’s March 28, 2018 order, and was based on new facts and

circumstances given Cole’s oral motion for voluntary dismissal at 

the hearing on their motion for mandatory dismissal. In 

addition, they pointed out that Cole failed to address their 

principal argument that their right to mandatory dismissal cut 

off his right to voluntarily dismiss the case. 

Gieleghem appeared as counsel for Cole at the hearing on 

the motion to vacate, on June 6, 2018. Defense counsel objected 

to his appearance. Gieleghem stated that he was counsel of 

record “because I filed pleadings in this case, in fact, the 

opposition to this motion.” The court accepted Gieleghem’s 

statement that he was “now in for all purposes.” 
9

The court denied the Hammonds’ motion in a written 

ruling on June 13, 2018. The court concluded there were 

insufficient grounds “to either vacate or reconsider defendants’ 

previous motion to dismiss. Plaintiff’s voluntary dismissal 

without prejudice was not precluded by defendants’ pending and 

un-decided motion to dismiss.” The court found that “[i]n reality, 

defendants are moving for reconsideration” under section 1008, 

but that they “failed to show new or different facts, 

circumstances, or law. 

Further, the court rejected the Hammonds’ argument that 

they had a superior right to mandatory dismissal. The court cited 

a line of cases it read as holding that a plaintiff retained a right 

to dismiss the action in the face of a pending dispositive motion, 

before any ruling thereon, as long as the plaintiff did so “for a 

valid independent reason” and not as a “tactical ploy.” The court 

continued, “When this court heard defendant’s [sic] motion to 

dismiss on March 28, 2018, the court had not issued a tentative 

ruling or any sort of disposition. That lack of ruling is important 

in determining this motion to vacate, set aside, or correct. 

Plaintiff was not precluded from moving for a voluntary dismissal 

without prejudice. Had the court issued some sort of ruling, 

plaintiff would then have been cutoff.” The court also denied 

Cole’s request for sanctions. The court ordered Cole to submit a 

proposed order within five court days. 

The court signed the order submitted by Cole on June 27, 

2018. Cole served a notice of entry of order on the Hammonds on 

July 1, 2018. The Hammonds filed their notice of appeal on 

August 30, 2018. 
10

DISCUSSION

The parties raise two issues on appeal. First, Cole asserts 

that the appeal is untimely and moves to dismiss it on that basis. 

Second, the Hammonds argue the trial court erred in granting 

Cole’s motion for voluntary dismissal and denying their motions 

for mandatory dismissal and to vacate the prior order. We agree 

with the Hammonds that the appeal is timely and, substantively, 

that the trial court erred. We therefore reverse.

I. Timeliness of the Appeal

A. Background

Our analysis of the timeliness issue requires a brief 

recitation of the convoluted procedural history leading to the 

Hammonds’ appeal.

At the March 28, 2018 hearing on the Hammonds’ motion 

for mandatory dismissal, the trial court granted Cole’s oral 

motion for voluntary dismissal and ordered the case dismissed 

without prejudice. There is no evidence in the record that the 

court entered a written order of dismissal or that notice of entry 

was served on the Hammonds. Instead, on the same day, Cole 

submitted to the clerk a form request for voluntary dismissal 

without prejudice.6 That dismissal was entered and filed by the 

6Although we need not reach this issue in resolving the 

Hammonds’ appeal, we note that they challenge the validity of 

Cole’s oral motion to dismiss as well as his subsequent form 

request based on several purported deficiencies. First, Cole 

appeared on his own behalf, sought a voluntary dismissal, and 

then filed the form request himself, despite the reappearance of 

Gieleghem as his counsel in filing the opposition to the motion to 

dismiss a few weeks prior. (See §§ 284, 285, 581, subd. (j).) 

Second, in his form request for dismissal, Cole checked the box 

indicating he was filing as counsel, rather than as a party, and 
11

clerk on May 8, 2018. Once again, there is no record that the 

Hammonds were served with notice of entry of this dismissal.

The court did enter a written order denying the 

Hammonds’ motion to vacate the voluntary dismissal on June 27, 

2018. Cole served the Hammonds with notice of entry of that 

order on July 1, 2018.7

In their notice of appeal, filed August 30, 2018, the 

Hammonds indicated that they were appealing from the following 

orders: (1) the March 28, 2018 order granting Cole’s motion to 

dismiss; (2) the May 8, 2018 entry of voluntary dismissal; and (3) 

the July 1, 2018 notice of entry of order denying the Hammonds’ 

motion to vacate.

Cole filed a motion to dismiss the appeal, incorporating by 

reference the argument from his respondent’s brief that the 

appeal was untimely under rule 8.108. The Hammonds opposed 

the motion and also requested oral argument on this issue. We 

deferred the ruling on the timeliness of the appeal to the panel. 

On July 3, 2019, we sent a letter to the parties directing them to 

focus their presentation during oral argument on the substantive 

issue in the appeal.

 

similarly signed the proof of service declaring that he was “not a 

party to the within action.” Cole did not respond to these issues 

in his briefing on appeal.

7 The Hammonds contend that the operative date should be 

July 2, 2018, the date this notice of entry was filed, rather than 

July 1, the date reflected on the proof of service. The deadlines 

under both rule 8.104 and 8.108 run from the date of service. 

Therefore, the operative date was July 1, 2018, the date the 

notice of entry was served on the Hammonds.
12

B. Analysis

“Compliance with the time for filing a notice of appeal is 

mandatory and jurisdictional. [Citation.] If a notice of appeal is 

not timely, the appellate court must dismiss the appeal.” 

(Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 

579, 582; see also rule 8.104(b) [“[N]o court may extend the time 

to file a notice of appeal. If a notice of appeal is filed late, the 

reviewing court must dismiss the appeal.”].) 

Rule 8.104(a)(1) contains the applicable time period for 

filing a notice of appeal. It provides that a notice of appeal must 

be filed “on or before the earliest of . . . (B) 60 days after the party 

filing the notice of appeal serves or is served by a party with a 

document entitled ‘Notice of Entry’ of judgment or a filedendorsed copy of the judgment, accompanied by proof of service;

or (C) 180 days after entry of judgment.” For purposes of these 

deadlines, the word “‘judgment’ includes an appealable order if 

the appeal is from an appealable order.” (Rule 8.104(e).)

Cole argues that the applicable date for calculating the 

deadline to appeal is July 1, 2018, the date he served the notice of 

entry of the court’s order denying the motion to vacate. He 

further acknowledges that “if calculated from that July 1, 2018 

date, an appeal filed on August 30, 2018 would be timely” under 

rule 8.104(a)(1)(B). He contends, however, that instead of the 

standard 60-day deadline under this rule, the Hammonds had 

only 30 days to appeal from the court’s June 27, 2018 order. 

Relying on rule 8.108(e)(1), he argues that “[w]hen a party files a 

valid motion for reconsideration, and the court denies the same, 

the deadline for appeal is 30 days (not 60 days).” He further 

claims the result would be the same if the Hammonds’ motion 

were construed as a motion to vacate, citing rule 8.108(c). 
13

This argument is meritless. Rule 8.108 expressly operates 

to extend the time to appeal, not limit it. Thus, rule 8.108(c) 

provides: “If, within the time prescribed by rule 8.104 to appeal 

from the judgment, any party serves and files ... a valid motion [ 

] to vacate the judgment, the time to appeal from the judgment is 

extended ... until the earliest of: (1) 30 days after the superior 

court clerk or a party serves an order denying the motion or a 

notice of entry of that order....” Rule 8.108(e) applies the same 

language to motions to reconsider an appealable order. Cole also 

ignores the plain language of rule 8.108(a): “This rule operates 

only to extend the time to appeal otherwise prescribed in rule 

8.104(a); it does not shorten the time to appeal. If the normal 

time to appeal stated in rule 8.104(a) is longer than the time 

provided in this rule, the time to appeal stated in rule 8.104(a) 

governs.”

Cole concedes that the Hammonds filed their appeal within 

60 days of the service of notice of entry on July 1, 2018. The 

appeal is timely under the 60-day limit in rule 8.104(a)(1)(B).8 

The prior dismissal orders of March 28 and May 8, 2018 as the 

underlying appealable orders. (See Mesa Shopping Center-East, 

LLC v. O Hill (2014) 232 Cal.App.4th 890, 898 [holding that 

voluntary dismissal and order denying motion to vacate dismissal 

8We also reject Cole’s suggestion that this court’s prior 

denial of a writ petition filed by the Hammonds as untimely 

somehow operates to bar this appeal as well. The Hammonds 

filed their petition for writ of mandate on September 24, 2018. 

We denied that petition as untimely, as it was filed more than 60 

days after the July 1, 2018 service of the notice of entry. Of 

course, the notice of appeal at issue here was filed almost a 

month earlier, on August 30, 2018, and therefore does not suffer 

from the same defect.
14

were “appealable as a judgment and orders attached thereto”]; 

see also § 581d [dismissals ordered by the court must be by 

written order and constitute a judgment when filed].) The 

Hammonds were not served with notice of entry of either order; 

thus the time to appeal runs 180 days from the date of entry. 

(Rule 8.104(a)(1); see also Carmel, Ltd. v. Tavoussi (2009) 175 

Cal.App.4th 393, 399 [requiring service of notice of entry of the 

order “as contemplated by the rules governing the timeliness of 

appeals”].) 

Because the Hammonds filed their appeal within 180 days 

after entry of the earliest order, on March 28, 2017, as well as 

within 60 days of the service of a notice of entry on July 1, 2018, 

that appeal was timely under rule 8.104(a). Thus, the extension 

provisions of rule 8.108 are inapplicable. Cole’s motion to dismiss 

is therefore denied.

II. Court Order Granting Voluntary Dismissal

The Hammonds contend that their right to a mandatory 

dismissal for lack of prosecution prevails over Cole’s right as a 

plaintiff to a voluntary dismissal and therefore that the trial 

court erred in granting Cole’s motion to dismiss and denying 

theirs. We agree.

Our review is principally one of the application of law to 

the facts, and is therefore de novo. (See Zapanta v. Universal 

Care, Inc. (2003) 107 Cal.App.4th 1167, 1171; Groth Bros. 

Oldsmobile, Inc. v. Gallagher (2002) 97 Cal.App.4th 60, 65.) We 

review any factual findings by the trial court for substantial 

evidence. (See Bowers v. Bernards (1984) 150 Cal.App.3d 870, 

873-874.)

A plaintiff’s right to voluntary dismissal is governed by 

section 581, subdivision (b)(1): “An action may be dismissed in 
15

any of the following instances. . . . With or without prejudice, 

upon written request of the plaintiff to the clerk, filed with 

papers in the case, or by oral or written request to the court at 

any time before the actual commencement of trial.”

But “[t]he right of a plaintiff to voluntarily dismiss an 

action before commencement of trial is not absolute.” (Harris v. 

Billings (1993) 16 Cal.App.4th 1396, 1402.) There are statutory 

exceptions to a plaintiff’s right of voluntary dismissal, and “other 

limitations have evolved through the courts’ construction of the 

term ‘commencement of trial.’” (Ibid.) The meaning of the term 

“trial” is not restricted to jury or court trials on the merits, but 

includes other procedures that “effectively dispose of the case.” 

(Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 785 

(Wells).)

One such disposition is the defendant’s right to dismissal 

due to a plaintiff’s failure to prosecute the case. Section 583.310 

requires that “[a]n action shall be brought to trial within five 

years after the action is commenced against the defendant.” A 

defendant’s right to dismissal after expiration of the five-year 

period is set forth in section 583.360, which provides: “(a) An 

action shall be dismissed by the court on its own motion or on 

motion of the defendant, after notice to the parties, if the action is 

not brought to trial within the time prescribed by this article. [¶] 

(b) The requirements of this article are mandatory and are not 

subject to extension, excuse, or exception except as expressly 

provided by statute.” “Thus, unless some specified exception 

applies, a trial court has a mandatory duty to dismiss an action 

and a defendant has an absolute right to obtain an order of 

dismissal, once five years has elapsed from the date the action 
16

was commenced.” (M&R Properties v. Thomson (1992) 11 

Cal.App.4th 899, 902–903 (M&R).) 

The issue, then, is to ascertain the point at which a plaintiff 

loses the right to voluntarily dismiss a case in the face of a 

defendant’s motion for mandatory dismissal under section 

583.360. We find the discussion in Franklin Capital Corp. v. 

Wilson (2007) 148 Cal.App.4th 187 (Franklin) instructive. In 

Franklin, the court reviewed an exhaustive list of cases 

addressing the issue of “when—and when not—a plaintiff’s 

statutory right to dismiss pursuant to section 581, subdivision 

(b)(1) is cut off by the presence of some impending ‘dispositive’ 

procedure.” (Id. at p. 194.) To harmonize the results, the court 

adopted a “mere formality” test. Under that test, a voluntary 

dismissal is ineffective if there has been either: (1) “public and 

formal judicial expressions of the merits of a case in the context 

of a substantively dispositive proceeding” or (2) “some procedural 

dereliction by the dismissing plaintiff that made dismissal 

otherwise inevitable” (Id. at p. 200, 202.)

Under the first prong of this test, therefore, a plaintiff’s 

voluntary dismissal would be valid if, for example, it was filed 

while a motion for summary judgment was pending but the court 

had not yet issued a tentative or final ruling. (See, e.g., Zapanta 

v. Universal Care, Inc., supra, 107 Cal.App.4th at pp. 1173–1174.) 

The plaintiff’s right to dismiss would be cut off, however, if the 

court had issued a tentative or final ruling on a dispositive 

motion. (See Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 

765 [adverse tentative summary judgment ruling]; Groth Bros. 

Oldsmobile, Inc. v. Gallagher (2002) 97 Cal.App.4th 60 [tentative 

ruling to sustain demurrer without leave to amend].)
17

Under the second prong of the test, the cases considered 

instances of “legal inevitability of dismissal based on dispositive 

procedural inaction by the plaintiff (like not filing opposition to a 

summary judgment motion or not bringing the case to trial in five 

years).” (Franklin, supra, 148 Cal.App.4th at p. 201; see also 

Cravens v. State Bd. of Equalization (1997) 52 Cal.App.4th 253 

[plaintiff not permitted to dismiss one day prior to hearing on 

summary judgment motion where plaintiff failed to oppose the 

motion]; Miller v. Marina Mercy Hospital (1984) 157 Cal.App.3d 

765, 770 [plaintiffs’ right to dismiss terminated after defendants 

notified them of deemed admissions effectively disposing of the 

case].)

Having distilled the relevant test, the Franklin court 

turned to the facts before it. There, after plaintiff’s counsel failed 

to appear at a mandatory settlement conference, the trial court 

issued an order to show cause regarding “Dismissal and/or 

sanctions.” (Franklin, supra, 148 Cal.App.4th at p. 191.) Before 

the hearing on the order to show cause, the plaintiff filed a 

voluntary dismissal without prejudice. At the hearing, the court 

entered a dismissal with prejudice and denied the plaintiff’s 

subsequent motion to vacate. (Id. at p. 192.) On appeal, the 

court found that the pending hearing did not cut off the plaintiff’s 

right to voluntarily dismiss the case, as there had been no 

indication of the trial court’s ruling and it was not inevitable that 

the court would dismiss the case as a result of the order to show 

cause. (Id. at p. 209.) 

The Franklin court also cited to M&R, supra, 11 

Cal.App.4th 899, which involved the five-year rule at issue here. 

In M&R, the defendants filed a motion to dismiss the case for 

failure to bring the matter to trial within five years. (Id. at p. 
18

901.) The plaintiffs filed a request for voluntary dismissal after 

the court issued a tentative ruling granting the motion and after 

the time for oral argument had expired, but before the dismissal 

order had been filed. (Ibid.) The court noted that, under section 

583.360, “unless some specified exception applies, a trial court 

has a mandatory duty to dismiss an action and a defendant has 

an absolute right to obtain an order of dismissal, once five years 

has elapsed from the date the action was commenced.” (Id. at p. 

903.) As such, the court rejected the plaintiffs’ contention that 

their right to obtain a voluntary dismissal was “superior to 

defendants’ right to mandatory dismissal,” declining “to balance 

the competing rights in such a fashion as to render a defendant’s 

motion for mandatory dismissal pointless, and the ruling of the 

court on that motion a nullity.” (Id. at pp. 902–903.) The court 

concluded that “a plaintiff’s right to a voluntary dismissal is cut 

off no later than the time of a ruling effectively disposing of the 

case (or at the end of a time period specified in that ruling)” and 

“that when there is a conflict between a plaintiff's right to 

voluntary dismissal and a defendant’s right to a mandatory 

dismissal, the defendant’s right prevails.” (Id. at p. 905.)9

Here, the trial court held that Cole retained the right of 

voluntary dismissal because it had not yet issued any ruling on 

the Hammonds’ pending motion for mandatory dismissal. In 

doing so, the court focused solely on the first prong of the twopart test elucidated in Franklin. Considering the second prong of 

9 The Franklin court noted that the plaintiff’s right in M&R

was cut off both because the court had issued a ruling and 

because of the procedural inevitability of dismissal upon the 

defendant’s motion to dismiss. (Franklin, supra, 148 Cal.App.4th 

at p. 204.)
19

that test, however, we conclude that the Hammonds’ right to a 

mandatory dismissal prevails over Cole’s asserted right to 

voluntarily dismiss the case. As mandated under section 

583.360, by the expiration of the five-year period and followed the 

Hammonds’ filing of their motion to dismiss, dismissal was a 

legal inevitability. 

This legal inevitability is key to the second part of the test. 

It is what distinguishes this case from cases—such as those cited 

by the trial court—upholding a motion for voluntary dismissal 

because it was filed when a substantive motion was pending but 

not yet ruled upon. (See Christensen v. Dewor Developments

(1983) 33 Cal.3d 778 [valid dismissal filed before hearing on 

demurrer]; Zapanta v. Universal Care, Inc., supra, 107 

Cal.App.4th at pp.1173–1174 [“At the time appellants filed their 

[section 581] request for dismissal, the opposition to the summary 

judgment motion was not past due, no hearing on the motion had 

been held and no tentative ruling or other decision tantamount to 

an adjudication had been made in respondents’ favor. In other 

words, the case had not yet reached a stage where a final 

disposition was a mere formality.”]; Kyle v. Carmon (1999) 71 

Cal.App.4th 901, 910 [plaintiff’s voluntary dismissal was valid 

after defendant filed an anti-SLAPP motion to strike but before 

the court ruled].) 

The Supreme Court’s discussion in Wells, supra, 29 Cal.3d 

781, highlights this distinction. In Wells, the court held that once 

a general demurrer is sustained with leave to amend and the 

plaintiff does not amend within the time allotted, the plaintiff 

can no longer voluntarily dismiss the action pursuant to section 

581, even if the court has yet to enter a judgment of dismissal on 

the sustained demurrer. (Id. at p. 789.) The court reasoned that 
20

when a “general demurrer to a petition is sustained, and the 

plaintiff declines to amend, . . . nothing remains to be done except 

to render judgment for the defendant.” (Id. at p. 785.) 

Conversely, the court noted in dictum, that “such right of 

voluntary dismissal, which is not barred until expiration of 

plaintiff's time to amend after the sustaining of the demurrer, 

would also not be impaired prior to a decision sustaining the 

demurrer.” (Id. at pp. 789–790.)

The trial court here interpreted M&R and the dictum in 

Wells to mean that plaintiff’s right to dismiss remained viable 

until it issued a ruling for defendant. But such an interpretation 

conflicts with the cases decided under the standards articulated 

in the second prong of the Franklin test, including Wells itself. 

These cases hold that a plaintiff’s right to voluntary dismissal 

ends when resolution in favor of the defendant is inevitable, even 

absent a ruling by the court. (See Franklin, supra, 148 

Cal.App.4th at pp. 202-203 [collecting cases]; see also Cravens v. 

State Board of Equalization (1997) 52 Cal.App.4th 253, 257 [no 

voluntary dismissal after time to oppose summary judgment had 

passed]; London v. Morrison (1950) 99 Cal.App.2d 876 [dismissal 

where case ordered transferred but plaintiff’s time to pay transfer 

fees had expired, giving defendant statutory right to dismissal.) 

Under section 583.360, the court is required to dismiss the action 

upon the expiration of the five-year period and a motion by 

defendant to dismiss. Once those steps have occurred, as they 

did here, dismissal is inevitable.

Cole argued below that mandatory dismissal was not a 

foregone conclusion because he presented a substantive 

opposition to the Hammonds’ motion. In that opposition, Cole 

asserted that the “pendency of” appeals in other Sheen trust 
21

cases “stayed trial court proceedings in the cases included in the 

Sheen Trust Litigation, including this case.” But he has provided 

no evidence that this case was stayed. Further, he has cited to no 

authority establishing that a stay in one case automatically stays 

a separate, related case for the purpose of tolling the five-year 

limitations period. (See § 583.340 [five-year limitation excludes 

time during which: “(a) The jurisdiction of the court to try the 

action was suspended[;] (b) Prosecution or trial of the action was 

stayed or enjoined[;] [or] (c) Bringing the action to trial, for any 

other reason, was impossible, impracticable, or futile.”].)

The cases Cole cited in his opposition to the Hammonds’ 

motion to dismiss discuss the effect of an appeal on trial 

proceedings in the same action and are thus inapplicable here. 

(See Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 

180, 191 [considering “whether trial court proceedings on the 

merits following an appeal from the denial of an anti-SLAPP 

motion are embraced in or affected by that appeal”]; Mattel, Inc. 

v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 

1179, 1189 [considering whether an automatic stay results when 

the moving party appeals from denial of a special motion to 

strike].)

Moreover, Cole has made no showing that the instant 

litigation was affected by the appeals in any of these other cases. 

His showing is particularly weak given the fact that only one of 

the four appeals he cites was taken in the fees action and 

therefore could arguably affect the assignment order. The 

remaining appeals were taken in the underlying probate 

litigation. Even assuming the running of the five-year period was 

tolled during the pendency of an appeal in the fees action, which 

Cole contends lasted 364 days between 2012 and 2013, the five-
22

year period would have run before the Hammonds filed their 

motion to dismiss in 2018.

Cole did not expressly raise this argument on appeal, apart 

from stating that the trial court “would have had [this argument] 

before it” when ruling on the motion to dismiss. His appellate 

brief did not present any argument or authority regarding the 

merits of his position that the five-year period was tolled for 

several years. During oral argument, Cole’s counsel asserted 

that he did not have the opportunity to address this argument on 

appeal because it was not raised in the Hammonds’ opening brief. 

That is incorrect. The Hammonds argued in their opening brief 

that at the time they moved to dismiss the case, the trial court’s 

“own record facially proved” that the case had never been stayed 

and there was nothing to prevent mandatory dismissal. They 

further contended that Cole’s opposition to the motion to dismiss 

was a “sham” and that the listed appeals in other cases did not 

operate to toll his five-year deadline to prosecute this lawsuit. 

Cole did not respond to these arguments. In any event, Cole had 

the opportunity to provide evidence to the trial court supporting 

his tolling claim and failed to do so.

Thus, Cole failed to provide any viable basis to oppose the 

Hammonds’ motion to dismiss. Because the granting of that 

motion was a mere formality by the time of the hearing, Cole no 

longer had the right to move for a voluntary dismissal of the case.

Cole also contends that substantial evidence supports an 

implied factual determination by the trial court that he acted in 

good faith in dismissing his complaint for the “independent 

reason” that his litigation objectives were met. We reject this 

contention for several reasons. First, the record lacks substantial 

evidence to support a finding that Cole dismissed the case for an 
23

independent reason. By Cole’s own admission, his litigation 

objective was met when the Hammonds started paying their rent 

directly to him in 2011, but he did not move to dismiss the case 

until 2018. Second, it is not clear from the record that the trial 

court made such a finding. Third, a finding that Cole acted in 

good faith (even if supported by the record) would not be 

sufficient to grant his request for voluntary dismissal in the face 

of the Hammonds’ pending motion to dismiss under section 

583.360. We agree with the court in Franklin that a plaintiff’s 

right to dismiss is not properly based on “some generalized 

‘unfairness’ or ‘good faith’ test,” untethered from the statutory 

right under section 581 to dismiss prior to commencement of 

trial. (See Franklin, supra, 148 Cal.App.4th at pp. 208-209, 

discussing Tire Distributors, Inc. v. Cobrae (2005) 132 

Cal.App.4th 538.) 

Accordingly, we conclude that the trial court erred in 

denying the Hammonds’ motion for mandatory dismissal 

pursuant to section 583.360, and instead granting Cole’s motion 

for voluntary dismissal. Upon remand, the Hammonds may 

choose to move for attorney fees based on their contention that 

they are the prevailing parties, pursuant to a clause in their 

rental agreement. (Civ. Code, § 1717, subd. (a); see also § 1033.5, 

subd. (a)(10)(A).) 
24

DISPOSITION

The judgment is reversed. The case is remanded with 

directions to vacate Cole’s voluntary dismissal, grant the 

Hammonds’ motion to dismiss, and for further proceedings 

consistent with this opinion. Appellants are awarded their costs 

on appeal.

CERTIFIED FOR PARTIAL PUBLICATION

COLLINS, J.

We concur:

MANELLA, P. J.

WILLHITE, J.