1 Filed 1/14/14 (unmodified version attached) CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

KAUSHIK DATTANI et al., Plaintiffs and Appellants,

v. GEEN HONE LEE, Defendant and Respondent. A138582
(San Francisco County Super. Ct. No. CGC-11-509290)

ORDER MODIFYING OPINION

[NO CHANGE IN JUDGMENT]

THE COURT:
It is ordered that the opinion filed Dece mber 19, 2013, be m odified as follows:
In the paragraph on page 6 immediately before the disposition, the following language is added after the sentence that reads “At some point a defendant is entitled to finality.”

This case is different from those where th e merits have been resolved by an order granting a motion for summary judgment or sustaining a demurre r without leave to amend. In those situations, the defendant ha s acted to bring the case to a close and is properly required to take the additional step of obtaining a judgment or order of dismissal from which an appeal can be taken. (See Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 531; Vitkievicz v. Valverde (2012) 202 Cal.App.4th 1306, 1310, fn. 2.) The defendant should not have th at burden when the plaintiff has chosen to end the case.
There is no change in the judgment.

Dated: _______________

________________ __________________ McGuiness, P.J.1 Filed 12/19/13 (unmodified version) CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

KAUSHIK DATTANI, et al., Plaintiffs and Appellants,

v. GEEN HONE LEE, Defendant and Respondent. A138582
(San Francisco County Super. Ct. No. CGC-11-509290)

Defendant and respondent Geen Hone Lee has moved to dismiss the appeal of plaintiffs and appellants Kaushi k Dattani, et al. (Dattanis) on the ground that their notice of appeal was not timely filed. We conclude that an appealable judgment was created when Dattanis filed a request for dismissal wi thout prejudice of all of their causes of action that remained after a grant of summary adjudication against them. Thus, the notice of appeal filed more than 180 days after th e date of this judgment, was untimely. We therefore grant the motion to dismiss.
I. BACKGROUND Dattanis filed a four-count complaint agai nst respondent. By order dated June 27, 2012, the court granted respond ent’s motion for summa ry adjudication of Dattanis’s first cause of action. On September 10, 2012, Datta nis filed a request for dismissal of all the remaining causes of action. According to coun sel’s uncontested declaration in support of the motion to dismiss this appeal, she appear ed on September 10, 2012, for trial of the second, third, and fourth causes of action. Dattanis’s attorney appear ed and told her that he was dismissing those causes of action “in order to pursue an appeal.” The request for dismissal was filed on the requisite Judicial Council form with a section to be completed by the clerk showin g whether or not dismissal was entered as2 requested. This section of the form was never completed by the clerk. The court’s register of actions for September 10, 2012, states: “Removed from master court calendar set for Sep-10-2012 – off calendar. Plaintiff’ s counsel represented to the court that the 1st cause of action was adjudicated on 6/27/12 and a dismissal of all the other causes of
action was filed on 9/10/12.” On April 16, 2013, the court filed a “J udgment by the Court Under C.C.P. § 437c” prepared by Dattanis’s counsel. The judgment states: “On June 27, 2012, this Court granted [respondent’s] motion for summary adjudi cation on the first cause of action . . . . On September 10, 2012, [Dattanis] dismissed their remaining causes of action . . . . Accordingly, [Dattanis] have no further clai ms to prosecute, and the Court orders that judgment shall be entered in favor of [respon dent]. [Dattanis] shall recover nothing on their complaint.” On May 6, 2013, Dattanis filed a notice of appeal from the April 16 judgment. They checked the box on the form stating that the appeal was from a “[j]udgment after an order granting a summary judgment motion.”
II. DISCUSSION Respondent contends that Dattanis’s request for dismissal was the equivalent of a judgment on the day it was filed, and appealab le. If respondent is correct, then Dattanis’s notice of appeal was untimely. Under Califor nia Rules of Court, rule 8.104(a)(1)(C), the latest possible time to file a notice of appeal is 180 days after entry of judgment. If the request for dismissal was tantamount to a judgment, then judgment was entered on September 10, 2012, the date the re quest was filed by the clerk. ( Palmer v. GTE California, Inc. (2003) 30 Cal.4th 1265, 12 68, fn. 2 [“a judgment’s date of filing, as shown on a file stamp, is the j udgment’s date of entry”].) The notice of appeal was filed more than 180 days later, in May 2013. “Ordinarily, a plaintiff’s voluntary dism issal is deemed to be nonappealable on the theory that dismissal of th e action is a ministerial action of the clerk, not a judicial act.” ( Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1012 ( Stewart ).) However, a series of cases beginning with Ashland Chemical Co. v. Provence3 (1982) 129 Cal.App.3d 790 ( Ashland ) recognized an exception to this rule and “allowed appeals by plaintiffs who dismissed their co mplaints after an adve rse ruling by the trial court, on the theory the dismissals were not really voluntary, but only done to expedite an appeal.” ( Id . at p. 793; see id . at p. 792 [the plaintiff as ked the clerk to dismiss the compliant with prejudice “ ‘only for the purp ose of expediting appeal’ ” after the court
sustained the defendant’s demu rrer without leave to amend]; Denney v. Lawrence (1994) 22 Cal.App.4th 927, 930, fn. 1 ( Denney ) [following Ashland ; parties stipulated to a “judgment of dismissal” after a ruling advers e to the plaintiff in a defamation action]; Casey v. Overhead Door Corp. (1999) 74 Cal.App.4t h 112, 116, fn. 2 ( Casey ), disapproved on another ground in Jimenez v. Superior Court (2002) 29 Cal.4th 473, 481, fn. 1 [following Ashland and Denney ; court granted the defendant’s motion for summary adjudication and an in limine motion on the remaining cause of action; the defendant’s
motion for “nonsuit/dir ected verdict” was granted and a “stipulated judgment” was
entered for the defendant].)
Ashland
, Denney , and Casey stand for the propositions that an appeal will lie “when a dismissal was requested after an advers e trial court ruling so that an appeal could be taken promptly,” and the request for such dismissal “operates as a request for an entry of judgment based on the adverse ruling.” ( Denney , supra , 22 Cal.App.4th at p. 930, fn. 1.) It is unclear whether a judgment was entered in Ashland (

Ashland
, supra , 129 Cal.App.3d at p. 792), but judgments were entered in Denney and Casey from which the appellants appealed. ( Denney , supra , at p. 930; Casey , supra , 74 Cal.App.4th at p. 116.) Here, no judgment was filed when the request for dismissal was made, and Denney , Casey , and possibly Ashland may be distinguished on that ground.
The distinction was eliminated in Stewart , where the reasoning of Ashland
, Denney , and Casey was extended to permit an appeal even though the re cord “contain[ed] no judgment or order of dismissal and no in dication that either was ever entered.” ( Stewart , supra , 87 Cal.App.4th at p. 1012.) But Stewart may also be distinguishable. That appeal contested an order for sanctions, and the parties agreed “that a settlement had been reached and a request for voluntary dism issal [was] entered with a stipulation that4 the sanction order would be appealed.” ( Stewart , supra , at p. 1012.) “Since the parties [were] in agreement that [a] dismissal was entered with the stipulation that appeal from the trial court’s order imposing sanctions wa s to follow, [the appellate court was] satisfied that an appeal able order exist[ed].” ( Ibid. ) There is no agreement about appealability in th e record here. The next relevant case, and the one that most directly suppor ts our holding, is Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967 ( Gutkin ). There, the plaintiff appellant sued a university and several indivi dual defendants. A motion to dismiss the individual defendants was grante d after their demurrers were sustained, and the case proceeded against th e university. On August 10, 2001, in the face of a
threatened motion directed at his remaining claims, the plaintiff appellant “filed a voluntary request for dismissal of his complaint ‘without prejudice’ ” ( Gutkin
, supra , 101 Cal.App.4th at p. 973.) “[The appellant] filed a notice of appeal on August 17, 2001. He then twice sought entry of judgment of dismissal on the basis of the trial court’s orders sustaining the demurrers to five of th e seven causes of action and dismissal of the individual defendants, as well as his own vo luntary dismissal of the action. The court clerk rejected [the appellant’s] proposed judg ment of dismissal because a dismissal of the complaint had been entered and notice of dism issal given. [The appellant] then followed with a ‘supplemental notice of ap peal’ on October 4, 2001.” ( Ibid .)
The Gutkin court held that the rulings on the demurrers could be contested in an appeal filed following the request for dismissa l. The court reasoned that the appellant could not voluntarily dismiss the causes of action to which demurrers had been sustained and, citing Ashland
, Casey , and Stewart , held “that even though the trial court refused to enter judgment following his voluntary dismissal of the co mplaint, the court’s order sustaining the demurrers withou t leave to amend, combined with the dismissal of the action, had the legal effect of a final, appealable judgment .” ( Gutkin
, supra , 101 Cal.App.4th at p. 974-975 [ italics added].) We likewise c onclude that the granting of summary adjudication on the first cause of ac tion here, combined with Dattanis’s request5 for dismissal of the remaining causes of acti on, created a “final, appealable judgment”
that enabled Dattanis to cont est the summary adjudication. Dattanis have filed an opening brief doing just that. They contend that summary adjudication of the first cause of action was e rroneous. They do not contest the causes of action they voluntarily dismissed, and could not do so under Gutkin

. Gutkin held that the appellant there could not challenge rulings on th e causes of action that were not resolved by the demurrers in that case because, as to those causes of action, the appeal was barred by the rule that voluntary dismissals are not appealable. ( Gutkin
, supra , 101 Cal.App.4th at p. 975.) We have no reas on to question that aspect of Gutkin here.
Gutkin could be distinguished on the ground th at, in that case, “a dismissal of the complaint had been entered and notice of dismissal given.” ( Gutkin
, supra , 101 Cal.App.4th at p. 973.) Here, the trial c ourt clerk merely filed and stamped Dattanis’s request for dismissal on September 10, 2012. Dattanis do not contend that the dismissal was ineffective on that date, and they woul d be estopped from so arguing because the purported “judgment” they filed in April 2013 stated that th ey had “no further claims to prosecute” because they “dismissed their remaining causes of action” on that date. That estoppel aside, we hold that the mere filing of the request for dismissal, without further action by the clerk, dismissed the remain ing claims from the suit and created an appealable judgment from which Dattanis could have contested the summary adjudication ruling. As recently confirmed by the decision in Kurwa v. Kislinger (2013) 57 Cal.4th 1097 ( Kurwa ), the request for dismissal effec tively ended proceedings in the trial court, even though the causes of action were dismissed without prejudice. (Compare Goldbaum v. Regents of th e University of California (2011) 191 Cal. App.4th 703, 708 [suggesting that a dismissal with prejudice is required to create an appealable judgment]).
In Kurwa , the plaintiff dismissed some of his causes of action with prejudice after an adverse pretrial ruling. The parties agreed to dismiss their remaining claims against each other without prejudice, a nd to waive the statute of lim itations applicable to those claims. Judgment was entered for the defend ant from which the plai ntiff appealed. The court held that the judgment was not final and appealable under the one final judgment6 rule because the claims dismissed without pr ejudice were preserved for later litigation by the waiver of the statute of limitations. ( Kurwa , supra , 57 Cal.4th at pp. 1100, 1105.)
Kurwa ’s relevance here is that it did not attribute the lack of finality to the
dismissal of some of the causes of action w ithout prejudice. The judgment was not final because of the agreement to waive the statute of limitations as to those causes of action in order to preserve them for future litigation. Kurwa quoted with approval the decision in Abatti v. Imperial Irrigation Dist. (2012) 205 Cal.App.4th 650 ( Abatti ), where the court
held: “Dismissal of some counts with out prejudice, by itself, does not deprive a judgment of appealability, as ‘claims that are dismissed without prejudice are no less final for purposes of the one final judgment rule than are adjudicated claims . . . .’ ( Abatti
, supra , at p. 665.) But where the parties ha ve reached an agreement that assures the potential for future litigation of the dismis sed claims, the judgment ‘lacks sufficient finality to be appealable pursuant to the one final judgment rule.’ ( Id. at p. 667.)” ( Kurwa , supra , 57 Cal.4th 1097 at p. 1104.) “A pl aintiff or cross-complainant has, of course, the right to voluntarily dismiss a cause of action without prejudice prior to trial. [Citations.] And as the Abatti court explained, such a dism issal, unaccompanied by any agreement for future litigation, does create sufficient finality as to that cause of action so as to allow appeal from a judgment disposing of the other counts.” ( Id. at p. 1105.) Here, Dattanis’s dismissal of the remaini ng claims without prejudice operated as a final judgment that resolved all the claims between the par ties. Were we to conclude otherwise, there would be no consequence to a plaintiff who dismisses claims to facilitate appellate review but delays years before se eking entry of judgment. At some point a defendant is entitled to finality. The appeal wa s filed more than 180 days after judgment and is untimely.7 III. DISPOSITION The appeal is dismissed.

_ ____________ ____________ Siggins, J.

We concur:

_____________ ____________ McGuiness, P.J.

_____________ ____________ Jenkins, J.8 A138582 Trial Court: San Francisco County Superior Court

Trial Judge: Hon. Harold E. Kahn

Counsel for Plaintiffs and Appellant s: Michael Timothy Heath, and Howard Olsen of Law Office of Michael Heath

Counsel for Defendant and Re spondent: Hannah C. Leung of Leung & Associates
Christine A. Chorney of Casalina & Disston