Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. MSC09-02562
McGuiness, P.J.
Plaintiff Keith Gale purports to appeal from an order denying his motion to vacate a voluntary dismissal of the action with prejudice. Because the order denying Gale’s motion to vacate is not an appealable judgment, we shall dismiss the appeal.
Factual and Procedural Background
On January 11, 2010, Gale acting in propria persona, filed a first amended complaint against defendants Mitchell Wright, County Records Research (County Records), Stephan Pinto, and Denis Pinto. The first amended complaint contains claims for breach of contract, fraud, and infliction of emotional distress, among other causes of action. Gale alleged that real property he owned was sold in a foreclosure sale after defendant Denis Pinto foreclosed on a deed of trust securing loans made by him and/or his brother, defendant Stephan Pinto, to defendant Wright. Gale contends the defendants improperly altered the deed of trust, recorded the instrument, and then foreclosed on the deed. Gale alleges that defendant County Records was complicit in the purportedly improper foreclosure.
The register of actions reflects that a default was entered against defendants Wright, Stephan Pinto, and Denis Pinto on February 18, 2010. The register of actions also indicates that Gale filed requests for dismissal without prejudice as to Stephan Pinto and Denis Pinto on March 2, 2010. On April 19, 2010, Wright filed a motion to set aside the entry of default.
The following day, on April 20, 2010, Gale filed a request for dismissal with prejudice of the “[e]ntire action of all parties and all causes of action.” The court clerk entered the dismissal as requested on the same date.
Three months later, on July 20, 2010, Gale filed a motion seeking to set aside the dismissal. He sought relief pursuant to Code of Civil Procedure section 473, claiming the dismissal of the entire action was filed as a result of inadvertence, mistake, or excusable neglect. In a declaration accompanying the motion, Gale stated he misunderstood which parties would be included within the scope of the dismissal. He claimed his intent was to dismiss only defendant County Records, which was the sole defendant listed in the case caption on the request for dismissal. He interpreted the reference to “all parties and all causes of action” to “relate back to the Case Caption which listed only County Records.” He further claimed it was not his intent to dismiss any other defendant and that he intended to maintain his action against Wright.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
Wright opposed the motion. In Wright’s opposition papers, he claimed Gale had another legal action pending against him involving the same parties and facts. He also stated Gale had previously litigated the issues arising in this case in two additional and separate actions filed in Contra Costa County Superior Court. Wright asserted that Gale made a tactical litigation decision to dismiss the first amended complaint and should not be granted relief.
On August 31, 2010, the court held a hearing on Gale’s motion to set aside the dismissal. The minute order reflects that Gale was present with an attorney who was making a “special appearance” for that day only on his behalf. Wright was present and appeared in propria persona. The court’s tentative ruling was to deny the motion because Gale had “made an inadequate showing under CCP 473 or other basis on which the relief sought may be granted.” The court heard argument and took the matter under submission.
Aside from this one instance in which a lawyer made a special appearance on his behalf, Gale does not appear to have been represented by counsel in the trial court proceedings.
The court affirmed its tentative ruling and denied Gale’s motion to set aside the dismissal in an order filed September 10, 2010. Gale filed an appeal from the order on November 8, 2010.
Discussion
At the threshold, we must determine whether Gale has appealed from an appealable order. “The existence of an appealable [order or] judgment is a jurisdictional prerequisite to an appeal.” (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) We must raise the issue on our own initiative when a doubt exists as to whether the trial court has entered a judgment made appealable by statute. (Ibid.) If the order or judgment is not appealable, the appeal must be dismissed. (Canandaigua Wine Co., Inc. v. County of Madera (2009) 177 Cal.App.4th 298, 302.)
“ ‘It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.’ [Citations].” (People v. Mazurette (2001) 24 Cal.4th 789, 792.) “ ‘The primary statutory basis for appealability in civil matters is limited to the judgments and orders described in section 904.1 of the Code of Civil Procedure....” (H.D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1365 (H.D. Arnaiz).)
Section 904.1, subdivision (a)(2) permits an appeal to be taken from an order made after a final, appealable judgment. However, the order in this case did not follow an appealable judgment but instead followed an entry of a voluntary dismissal. “A voluntary dismissal under Code of Civil Procedure section 581, subdivision (b)(1) by written request to the clerk is not a final judgment, as no judgment, final or otherwise, is necessary to the dismissal. [Citations.]” (H.D. Arnaiz, supra, 96 Cal.App.4th at pp. 1364-1365; accord Yancey v. Fink (1991) 226 Cal.App.3d 1334, 1342-1343.) Moreover, “a plaintiff’s voluntary dismissal under section 581 has generally been held to be nonappealable, on the theory that the dismissal of the action is a ministerial action of the clerk, not a judicial act. [Citations.].” (Gray v. Superior Court (1997) 52 Cal.App.4th 165, 170; see also H.D. Arnaiz, supra, 96 Cal.App.4th at p. 1365.) Thus, because the underlying voluntary dismissal is not appealable, courts have concluded that orders on motions to vacate a voluntary dismissal are likewise not appealable. (H.D. Arnaiz, supra, 96 Cal.App.4th at pp. 1364-1366 [no appeal from order granting motion to vacate voluntary dismissal]; Gray v. Superior Court, supra, 52 Cal.App.4th at p. 171 [no appeal from order denying motion to vacate voluntary dismissal].)
In Basinger v. Rogers & Wells (1990) 220 Cal.App.3d 16, 20-21, Division One of the Fourth District Court of Appeal deviated from this principle when it held that an order vacating previously filed voluntary dismissals was appealable. The court supported its holding by a single citation to the rule, as stated in Witkin’s treatise on California Procedure, that orders vacating dismissals are generally appealable. (Id. at p. 21.) However, the court failed to consider the caveat to this rule—“ ‘[a] vacating order is not appealable unless it vacates a prior appealable judgment. [Citation.]’ (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 149, p. 215.)” (H.D. Arnaiz, supra, 96 Cal.App.4th at p. 1365.) Further, in the case of an order denying a motion to vacate, as we are presented with here, the general rule is that such orders are nonappealable, with rare exceptions. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 197, p. 273.) Because Basinger v. Rogers & Wells cites no statutory basis for appellate review of an order granting or denying a motion to vacate a voluntary dismissal, we join the H.D. Arnaiz court in declining to follow it. (See H.D. Arnaiz, supra, 96 Cal.App.4th at p. 1366.)
The authorities relied upon by Gale do not compel a different conclusion. He cites a probate case in which an interested party sought to vacate an order granting the executor’s motion to dismiss a will contest. (See Estate of Baker (1915) 170 Cal. 578, 581.) There was no dispute the dismissal order the interested party sought to vacate in that case was itself appealable, unlike a voluntary dismissal. (Id. at pp. 581-582.) The other authorities cited by Gale to support his claim that an order denying a motion to vacate is appealable are similarly inapposite. (See Dominguez v. City of Alhambra (1981) 118 Cal.App.3d 237, 241 [order denying leave to file amended complaint is appealable as final determination of the plaintiff’s rights]; Majors v. County of Merced (1962) 207 Cal.App.2d 427, 432 [order denying motion to substitute party and file amended complaint treated as final judgment]; Lamont v. Wolfe (1983) 142 Cal.App.3d 375, 382 [order sustaining demurrer without leave to amend may be deemed to incorporate appealable judgment of dismissal].)
Accordingly, we conclude the order denying Gale’s motion to set aside his voluntary dismissal is not an appealable order, compelling dismissal of his appeal. Our conclusion does not mean that a party aggrieved by an order on a motion to vacate a voluntary dismissal is left without any recourse. Such an order may be challenged by a petition for a writ of mandate. (See H.D. Arnaiz, supra, 96 Cal.App.4th at p. 1366; Gray v. Superior Court, supra, 52 Cal.App.4th at pp. 170-171; see also Cal-Vada Aircraft, Inc. v. Superior Court (1986) 179 Cal.App.3d 435, 438, 448 [writ of mandate to vacate order setting aside voluntary dismissal].)
We have the discretion to treat a purported appeal from a nonappealable order as a petition for writ of mandate. (See Wells Properties v. Popkin (1992) 9 Cal.App.4th 1053, 1055.) We exercise that power only under extraordinary circumstances compelling enough to suggest we would issue a peremptory writ in the first instance if the matter had been pursued as a petition for writ of mandate. (Ibid.; accord H.D. Arnaiz, supra, 96 Cal.App.4th at pp. 1366-1367.) No such extraordinary circumstances exist here.
Gale has offered no compelling reason for this court to conclude the trial court abused its discretion in denying his motion to vacate the voluntary dismissal. (See Sprague v. County of San Diego (2003) 106 Cal.App.4th 119, 127-128 [order granting or denying relief under section 473, subdivision (b) reviewed for abuse of discretion].) Among other things, the sparse record provided to this court does not include a transcript of the hearing at which the court heard argument on his motion. We therefore lack a proper record to assess the court’s exercise of its discretion. Further, inferences that may be drawn from the available facts support a ruling denying relief under section 473. For example, it is reasonable to conclude that Gale knew how to dismiss individual defendants without dismissing the entire action since he had done so previously when he dismissed individual defendants Stephan and Denis Pinto.
As a final matter, we note that Gale has requested oral argument in response to a notice sent by the court’s clerk, as a matter of course, when an appeal is fully briefed. A party’s right to oral argument exists in any appeal considered on the merits and decided by written opinion. (See Moles v. Regents of University of California (1982) 32 Cal.3d 867, 871; accord Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1255.) Because we dismiss the appeal without reaching the merits, appellant does not have a right to oral argument, which we find in this instance to be unnecessary to our procedural dismissal of the appeal.
Disposition
The appeal is dismissed. Because Wright filed no respondent’s brief or motion to dismiss in this court, each party shall bear its own costs on appeal.
We concur: Pollak, J., Jenkins, J.