Case May Not Be Dismissed During Appeal

Timothy Kowal, Esq.
April 7, 2022

Can you dismiss your lawsuit while it’s on appeal? No. That is the surprising holding of Curtin Maritime Corp. v. Pacific Dredge & Const. (D4d1 Mar. 22, 2022) no. -- Cal.Rptr.3d ---- 2022 WL 841760. The plaintiff had successfully opposed the defendant’s anti-SLAPP motion, and the defendant appealed the order denying its motion. The plaintiff decided to dismiss its claims. But the Court of Appeal held it could not dismiss until it was done with the appeal.

Plaintiff sued under the Unfair Competition Law and the Jones Act about whether the defendant’s sea vessel was U.S.-built. The defendant filed an anti-SLAPP motion. The trial court agreed the claims arose from protected activity (filing an application for coastwise endorsement with the Coast Guard), but found the plaintiff had established minimal merit for its claims. The defendant appealed.

While the appeal was still pending, the plaintiff dismissed its complaint without prejudice. The plaintiff then filed a motion to dismiss the appeal as moot.

An Appeal Is Not Rendered Moot Simply by Dismissing the Underlying Action

First, the unsurprising part of the opinion held that, no, dismissing the complaint does not moot the defendant’s anti-SLAPP motion, or the appeal of an order denying the anti-SLAPP motion. A defendant who files a successful anti-SLAPP motion is entitled to fees, so the defendant here was entitled that pursue that remedy, including through appeal: "This court can grant effective relief because our reversal of the denial of Pacific's motion to strike the complaint entitles it to an award of attorney fees and costs under section 425.16, subdivision (c).”

So the plaintiff remains exposed to the risk of anti-SLAPP attorney fees. Even though the plaintiff defeated the SLAPP motion in the trial court, unless the order is affirmed on appeal the plaintiff is not out of the woods yet. Dismissing the complaint does not change that.

A Plaintiff May Not Dismiss a Complaint Pending Appeal, Due to the Appellate Stay

The surprising holding of Curtin Maritime is that, once an appeal has been filed, the appellate stay under Code of Civil Procedure section 916 prevents the plaintiff from dismissing the lawsuit.

This is contrary to the general rule that a plaintiff may voluntarily dismiss the complaint with or without prejudice upon request to the court clerk, prior to trial. (§ 581, subds. (b) & (c).) Here is how the court explains the exception:

“Once a notice of appeal has been filed in the trial court, however, section 916 provides for an automatic stay of trial court proceedings "upon the matters embraced" in or "affected" by the appeal. Because the trial court proceedings were stayed when Pacific filed its notice of appeal, the trial court lacked jurisdiction to dismiss the case thereafter.” (Citing Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 188-189 [trial court had no jurisdiction to proceed with trial and enter judgment after appeal filed from order denying anti-SLAPP motion to strike].)

The court concluded: “Here, dismissing the case would impact the effectiveness of [defendant] Pacific's appeal, since it would foreclose the opportunity to recover attorney fees and costs as the prevailing party under section 425.16 upon reversal of the trial court's order denying Pacific's motion.”

Comment: That quote is not an accurate statement of the law. “A defendant has the right to seek costs after dismissal of the complaint, and attorney fees recoverable under statutory authorization are deemed an element of costs.” (Adler v. Vaicius (1993) 21 Cal.App.4th 1770, 1776.)

Prof. Shaun Martin agrees this holding “seems fairly revolutionary,” and links to “tons of cases that, in fact, got dismissed while the matter was on appeal.”

But now we have at least one published case that holds a plaintiff may not dismiss pending appeal. And when there’s a conflict — no matter how lopsided — trial courts may "exercise discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456, to choose between sides of any such conflict.”

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at or (714) 641-1232.

Get a weekly digest of these articles delivered to your inbox by subscribing here: