If Your Case Is Dismissed for Failure to Prosecute, Simply Refile the Case

Timothy Kowal, Esq.
November 24, 2021

This topic comes up periodically, but it is still a little puzzling.

A complaint is filed. For one reason or another, the court dismisses the complaint without prejudice. But: the court does not sign the dismissal order. A dismissal order must be signed under Code of Civil Procedure section 581d. So the appeal from the unsigned dismissal is dismissed in Alaoui v. Vaynerman (D2d5 Nov. 8, 2021) 2021 WL 5175659 (no. B308421) (nonpub. opn.).

Here is why I say this is a little puzzling. True, section 581d requires that a mandatory dismissal be signed. (Voluntary dismissals need not be signed.) But in other cases where the case is effectively over but the trial court forgets the ministerial act of entering a judgment, appellate courts may simply deem the nonappealable order to be appealable. (E.g., Swain v. California Casualty Ins. Co. (2002) 99 Cal.App.4th 1, 6 ["[B]ecause the order on summary judgment effectively disposed of the issues...we can amend it to do explicitly what it did only implicitly."]; Holt v. Booth (1991) 1 Cal.App.4th 1074, 1081 ["`[T]he [appellate] court may, in its discretion, where the intention of the trial court was clear, order judgment rather than send the case back for the performance of that act.'"] quoting Tsarnas v. Bailey (1960) 179 Cal.App.2d 332, 337.)

So, why didn't the court simply deem the unsigned dismissal to be a signed dismissal here? (Or in Lee v. Medrano (D2d5 Feb. 24, 2021) No. B305536 (nonpub. opn.), involving a similar situation?)

Here is what I think. A dismissal without prejudice, even though involuntary, is still without prejudice. The words "without prejudice" mean something. Those words mean the claims may be brought again. That makes a mandatory dismissal without prejudice different from other nonappealable adjudications, like orders sustaining a demurrer, or orders granting summary judgment. Those orders cut off the plaintiff's right to refile the case, regardless of whether a judgment has been entered. As I explained here, orders that put the writing on the wall cut off the plaintiff's right to voluntarily dismiss and refile the action.

But a dismissal based on failure to prosecute, for example, does not have the same effect. The only remedy for failure to prosecute (Code Civ. Proc., § 581(b)(4)) and failure to appear at trial (Code Civ. Proc., § 581(b)(5)) is dismissal "without prejudice." Until such a dismissal is signed, the plaintiff may simply refile the action. That is why a dismissal without prejudice is not appealable. (Eaton Hydraulics Inc. v. Continental Casualty Co. (2005) 132 Cal.App.4th 966, 974-975, fn. 6 ["A dismissal 'without prejudice' necessarily means without prejudice to the filing of a new action on the same allegations, so long as it is done within the period of the appropriate statute of limitations."].) The Aloui court further cites City of Los Angeles v. City of Los Angeles Employee Relations Bd. (2016) 7 Cal.App.5th 150, 157 [a dismissal order is appealable as a final judgment when the order complies with section 581d, which states “[a]ll dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action ....”]; Katzenstein v. Chabad of Poway (2015) 237 Cal.App.4th 759, 768; Powell, supra, 197 Cal.App.4th at 1577-1578.) Without a signed order of dismissal (or a judgment), we lack jurisdiction to hear this appeal and must dismiss it. (Munoz v. Florentine Gardens (1991) 235 Cal.App.3d 1730, 1732.)

No mere ministerial act of the court can change that.

And that is (I think) the reason the appellate courts do not tend to simply "deem" unsigned mandatory dismissal orders to be appealable. Appellate courts only "deem" orders to be appealable when all that is standing in the way of the order becoming appealable is the trial court's ministerial act. But in the case of an unsigned dismissal based on a failure to prosecute, something else could happen: namely, the plaintiff may still refile the action. That act by the plaintiff would render the order nonfinal, and thus nonappealable.

The recognition that the plaintiff still has a role to play explains why the Court of Appeal concluded in Lee v. Medrano that "Plaintiff is thus free, if she wishes, to pursue whatever means she believes is most expedient to perfect her appeal." If a plaintiff, having been handed a dismissal for failure to prosecute the case, wants to resume the case, the plaintiff need simply refile the case. A trip to the Court of Appeal is not necessary.

But What If the Dismissal Renders the Claims Time-Barred?

The more practical problem with a dismissal without prejudice is it may render claims barred by the applicable statutes of limitation. That may be why the plaintiff in Alaoui moved to set aside the dismissal under Code of Civil Procedure section 473. But the denial of that motion was not appealable because the underlying order — the unsigned dismissal — was not signed and thus nonappealable. There must be a valid underlying final judgment when relying on the statutory provision that authorizes an appeal from a post-judgment order. (See, e.g., Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1394; see also Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1578 (Powell).)

What the plaintiff probably needed to do here (and may still do on remand) is to make a record that the claims will be time-barred in the event the trial court does not reinstate the complaint (if indeed that is the case). Armed with that record, the plaintiff may argue in the Court of Appeal that the dismissal does in fact operate as a final adjudication of the claims.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. 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 tkowal@tvalaw.com or (714) 641-1232.

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