Is a dismissal a “judgment”? Yes, but there’s a split of authority

Tim Kowal December 5, 2023

After plaintiff obtained a preliminary injunction preventing defendant pet stores from selling puppies, the legislature passed a law barring the retail sale of puppies. Having got what it came for, plaintiff dismissed the action without prejudice. The court awarded the successful plaintiffs over $46,000 in attorneys' fees. But to the plaintiffs’ chagrin, the award was against only one set of defendants. Plaintiffs appealed, arguing they should get to enforce the award against all the defendants.

But the defendants raised a good procedural objection: An appeal requires a final judgment. And a “dismissal” is not quite the same as a judgment. And if there is no judgment, then the cost award does not qualify as a post-judgment order.

That, the Court of Appeal held in Taft v. Salinas (D4d1 Nov. 30, 2023 No. D081025) [nonpub. opn.], makes no sense. True, there is one case, Mon Chong Loong Trading Corp. v. Superior Court (2013) 218 Cal.App.4th 87, which held an order on a motion to tax costs is not appealable when it follows a voluntary dismissal without prejudice. But there is another, better reasoned, case that holds the opposite. Gassner v. Stasa (2018) 30 Cal.App.5th 346 holds holds a costs order is appealable as a final judgment when it follows a clerk-entered voluntary dismissal without prejudice.

Even if it were not appealable under Code of Civil Procedure section 904.1(a)(2) as a postjudgment order, an award of fees meets all the requirements of an appealable collateral order.

Motion to dismiss denied. And on the merits, the court also agreed with the plaintiffs that they were entitled to a cost award against all the defendants.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.

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"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

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"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

— Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

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Is a dismissal a “judgment”? Yes, but there’s a split of authority

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"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187

"A judge is a law student who grades his own papers." — H.L. Mencken