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Court Split

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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