NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IRION, J.

Plaintiff Gwendolyn Wilson voluntarily dismissed her action against Defendant Nationstar Mortgage LLC ("Nationstar") on the eve of a hearing on Nationstar's pending demurrer and discovery motions, but the trial court struck her dismissal, sustained the demurrer with prejudice and granted the discovery motions (including a request for sanctions). Wilson appeals the trial court's order denying her motion to vacate those rulings, its award of attorney fees to Nationstar, and the subsequent amended judgment. She contends the trial court lacked jurisdiction to strike her voluntary dismissal and to enter any order or judgment in Nationstar's favor thereafter.

We conclude that the trial court was without jurisdiction to strike Wilson's dismissal, but that it retained jurisdiction to award discovery sanctions and attorney fees.

I.

FACTUAL AND PROCEDURAL BACKGROUND

In 2013, Wilson filed a complaint against Nationstar seeking to enjoin it from foreclosing on her real property. Nationstar demurred to her amended complaint, simultaneously filing a motion to strike, three motions to compel discovery responses and a motion to deem matters admitted. Wilson did not file an opposition to the demurrer or to any of Nationstar's motions.

The trial court issued a tentative ruling sustaining Nationstar's demurrer with leave to amend, granting its discovery motions and imposing discovery sanctions on Wilson. A few hours later, Wilson dismissed the action without prejudice. At the hearing on its motions the next day, Nationstar made a motion to strike the dismissal. Nationstar contended that Wilson improperly filed the dismissal after the court had issued an adverse tentative ruling. The court sought briefing on Nationstar's request to strike the dismissal and continued the hearing. Nationstar timely filed its brief, but Wilson filed a late brief after midnight on the hearing date.

In September 2014, the court ordered Wilson's dismissal stricken, sustained Nationstar's demurrer without leave to amend, granted Nationstar's discovery motions and awarded discovery sanctions. Judgment was entered in favor of Nationstar. Thereafter, Nationstar sought attorney fees pursuant to Civil Code section 1717 based on the attorney fee provision contained in the deed of trust pertaining to Wilson's property.

Although she did not timely file an appeal, Wilson subsequently filed a motion to vacate the September 2014 order and judgment. She sought relief pursuant to Code of Civil Procedure section 473, subdivision (b), based on her attorney's excusable neglect in filing an untimely opposition to Nationstar's motion to strike.1 Wilson further argued that the trial court did not have the legal authority to strike her voluntary dismissal. The court denied Wilson's motion to vacate and granted Nationstar's motion for attorney fees in February 2015. Later that month, the court entered an amended judgment, dismissing the case and awarding attorney fees and costs to Nationstar.

Wilson timely appealed the February 2015 order and judgment.

II.

DISCUSSION

A. Denial of Motion to Vacate

Wilson appeals the trial court order denying her motion to vacate the order striking her voluntary dismissal and the amended judgment that followed.2 She contends the order denying her motion to vacate is appealable because the trial court lacked jurisdiction to enter the September 2014 order and judgment after she timely dismissed the action, and therefore the order and judgment were void.

1. Appealability of an Order Giving Effect to a Void Judgment

A postjudgment order is subject to appeal. (§ 904.1, subd. (a)(2).) However, an order denying a motion to vacate a judgment is generally not appealable unless it decides new issues or the underlying judgment is void. (Carlson v. Eassa (1997) 54 Cal.App.4th 684, 690-691.) An order denying a motion to vacate a void judgment is itself void, and is thus appealable because it gives effect to the void judgment. (Ibid.; Carr v. Kamins (2007) 151 Cal.App.4th 929, 933-934 [order denying a nonstatutory motion to vacate a void judgment is appealable]; Reisman v. Shahverdian (1984) 153 Cal.App.3d 1074, 1087, fn. 3 [order denying a statutory motion to vacate a void judgment is appealable even if the motion was brought on other grounds].) For the reasons that follow, we conclude that the trial court's order striking the dismissal and the resulting judgment were void and the order denying Wilson's motion to vacate is therefore appealable.

2. Standard of Review

Whether an order or judgment is void presents a question of law, which we review de novo. (Nixon Peabody LLP v. Superior Court (2014) 230 Cal.App.4th 818, 822; see Lee v. Kwong (2011) 193 Cal.App.4th 1275, 1281 [whether a voluntary dismissal was timely filed also presents a question of law if based on undisputed facts].)

3. A Judgment Entered After a Timely Voluntary Dismissal Is Void

A plaintiff has the right to dismiss an action, with or without prejudice, if the dismissal is filed "prior to the actual commencement of trial." (§ 581, subd. (c).) Section 581, subdivision (a)(6) provides: "[a] trial shall be deemed to actually commence at the beginning of the opening statement or argument of any party or his or her counsel, or if there is no opening statement, then at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence." Case law broadly interprets the statutory term actual commencement to include circumstances in which a pretrial procedure has effectively disposed of a case or made an adverse judgment "`inevitable.'" (Gogri v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255, 261-262, 263 (Gogri).) Examples of such circumstances include the sustaining of a demurrer without leave to amend (Bank of America, N.A. v. Mitchell (2012) 204 Cal.App.4th 1199, 1210 (Bank of America)), the issuance of a tentative ruling sustaining an unopposed demurrer without leave to amend (Groth Bros. Oldsmobile, Inc. v. Gallagher (2002) 97 Cal.App.4th 60, 73 (Groth)), and the sustaining of a demurrer with leave to amend where the plaintiff does not amend before the time for amendment expires (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 789 (Wells)). "Commencement of trial" also is deemed to occur when a plaintiff fails to respond to a request for admissions that results in all dispositive issues being deemed admitted. (Miller v. Marina Mercy Hospital (1984) 157 Cal.App.3d 765, 767 (Miller).)

In contrast, an order sustaining a demurrer with leave to amend does not preclude a plaintiff from filing a voluntary dismissal before the time to amend expires. (Parsons v. Umansky (1994) 28 Cal.App.4th 867, 871-872 (Parsons).) Similarly, issuance of a notice that the court is considering the imposition of terminating sanctions does not preclude the plaintiff from filing a voluntary dismissal prior to the hearing. (Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 207 (Franklin).) In addition, a plaintiff's bad faith or gamesmanship in seeking to dismiss a case is insufficient to deprive him or her of the right to dismiss an action under section 581. (Ibid.; Lewis C. Nelson & Sons, Inc. v. Lynx Iron Corp. (2009) 174 Cal.App.4th 67, 80 (Lewis) [plaintiff's subjective lack of good faith in seeking a dismissal does not, by itself, terminate the statutory right to dismiss without prejudice]; but see Hartbrodt v. Burke (1996) 42 Cal.App.4th 168, 175 (Hartbrodt) [affirming trial court's refusal to permit voluntary dismissal in an attempt to evade a terminating sanction for plaintiff's failure to comply with the court's discovery order].)

Significantly, once a voluntary dismissal is timely filed under section 581, the trial court is without jurisdiction to act further other than to award costs and attorney fees. (Gogri, supra, 166 Cal.App.4th at p. 268.) Consequently, after a plaintiff's voluntary dismissal is timely filed, the trial court may not vacate the dismissal or enter an order dismissing the action with prejudice. (Harris v. Billings (1993) 16 Cal.App.4th 1396, 1405 (Harris).) Orders entered by a court that lacks jurisdiction following the filing of a voluntary dismissal are void. (Paniagua v. Orange County Fire Authority (2007) 149 Cal.App.4th 83, 89 (Paniagua).)

4. Analysis

Wilson contends she filed the voluntary dismissal without prejudice before any special circumstance or pretrial procedure that rendered an adverse judgment inevitable. (Gogri, supra, 166 Cal.App.4th at pp. 261-262, 263.) We agree. Although Wilson did not file the voluntary dismissal until after the court had issued a tentative ruling on Nationstar's demurrer, that ruling sustained the demurrer with leave to amend. In accordance with the authorities cited above, this ruling did not constitute the "commencement of trial" for purposes of section 581. Notably, even if the court's ruling had been final rather than tentative, Wilson would have retained the right to dismiss the action without prejudice until the time for amendment of her complaint expired. (Parsons, supra, 28 Cal.App.4th at pp. 871-872; Wells, supra, 29 Cal.3d at pp. 789-790; cf. Bank of America, supra, 204 Cal.App.4th at p. 1210 [no right to dismiss without prejudice after demurrer sustained without leave to amend]; Groth, supra, 97 Cal.App.4th at p. 73 [same for tentative ruling sustaining demurrer without leave to amend].)

Nationstar argues that its pending demurrer inevitably would have disposed of Wilson's case because she failed to file an opposition to the demurrer demonstrating how the complaint could be amended to state a claim. We disagree. The tentative ruling indicated the court planned to exercise its discretion to grant Wilson leave to amend, even absent such a showing, as was its right. (§§ 472a, subd. (c), 430.41, subd. (e)(1); see generally California War Veterans for Justice v. Hayden (1986) 176 Cal.App.3d 982, 985.) Accordingly, Wilson's right to voluntarily dismiss her claims was preserved and entry of judgment in Nationstar's favor was not inevitable.3

Nationstar further contends Wilson's voluntary dismissal was untimely because the court was going to deem dispositive matters admitted. However, Nationstar relies on inapposite authority holding that a plaintiff may not file a voluntary dismissal after requests for admission (dispositive of plaintiff's entire case) are deemed admitted. (Miller, supra, 157 Cal.App.3d at p. 767.) Here, Wilson filed her voluntary dismissal before Nationstar's requests for admission were deemed admitted.

Nationstar also contends Wilson's voluntary dismissal was improper gamesmanship designed to avoid an adverse ruling. While this court does not condone litigation "gamesmanship," a plaintiff's right to voluntarily dismiss his or her action is unaffected by the fact a plaintiff acts with bad faith or gamesmanship in so doing. (Franklin, supra, 148 Cal.App.4th at p. 210; Lewis, supra, 174 Cal.App.4th at p. 80.) Nationstar quotes language from several cases referring to a plaintiff's gamesmanship and bad faith, but in each of those cases there were additional grounds, not applicable here, precluding the plaintiff from dismissing the case.4 Wilson's subjective reasons for filing an 11th-hour dismissal are simply not dispositive.5 (Gogri, supra, 166 Cal.App.4th at p. 269, fn. 11.)

Wilson's timely dismissal of the action deprived the trial court of jurisdiction to take any further actions, other than to award costs and attorney fees. (See Gogri, supra, 166 Cal.App.4th at p. 268.) Accordingly, since the trial court was without jurisdiction to strike Wilson's voluntary dismissal and enter judgment against her, both the order and judgment are void. (See Harris, supra, 16 Cal.App.4th at p. 1405; Paniagua, supra, 149 Cal.App.4th at p. 89.)

B. Jurisdiction to Award Attorney Fees and Sanctions Following Dismissal

Wilson contends that her timely voluntary dismissal deprived the trial court of jurisdiction to award sanctions in conjunction with the discovery motions that were pending at the time of the dismissal and that Civil Code section 1717 precluded an award of contractual attorney fees because there was no prevailing party following her voluntary dismissal. We are not persuaded.

1. Standard of Review

The extent of the court's jurisdiction following voluntary dismissal presents a question of law subject to independent review. (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907 (Kyle).) We also independently review whether the court has a statutory basis to award attorney fees. (Abouab v. City and County of San Francisco (2006) 141 Cal.App.4th 643, 661.)

2. Governing Principles

As described above, following a plaintiff's timely voluntary dismissal of an action, a court retains jurisdiction to award costs and statutory attorney fees. (Gogri, supra, 166 Cal.App.4th at p. 261.) Since the award of attorney fees for discovery abuses is statutorily authorized, following dismissal a court retains the authority to award such fees. (§ 2023.030, subd. (a); see Kyle, supra, 71 Cal.App.4th at pp. 917, 919 [recognizing that a court retains jurisdiction to award statutory attorney fee sanctions associated with a pending special motion to strike under § 425.16 after a plaintiff's voluntary dismissal]; Liu v. Moore (1999) 69 Cal.App.4th 745, 751 (Liu) [same].) Following a timely voluntary dismissal, the court also retains jurisdiction to award contractually-based attorney fees, unless such recovery is precluded by Civil Code section 1717. (Code Civ. Proc., §§ 1032, subds. (a)(4) & (b), 1033.5, subd. (a)(10)(A); Santisas v. Goodin (1998) 17 Cal.4th 599, 606-609 (Santisas).).

Civil Code section 1717 provides that there is no "prevailing party" in an action that is voluntarily dismissed, thus generally precluding an award of attorney fees. (Id., subd. (b)(2).) However, this limitation does not apply to noncontractual (i.e., tort or statutory) causes of action for which fees are recoverable under a contract. (Santisas, supra, 17 Cal.4th at p. 617; Gogri, supra, 166 Cal.App.4th at p. 274.)

3. Analysis

Under the foregoing principles, the court had the authority to award discovery sanctions to reimburse Nationstar for attorney fees it incurred in preparing the discovery motions that were pending at the time of the dismissal. (See, e.g., Kyle, supra, 71 Cal.App.4th at p. 908, fn. 4; Liu, supra, 69 Cal.App.4th at p. 751.) Likewise, it retained jurisdiction to award attorney fees Nationstar incurred in defending against Wilson's noncontract based causes of action.6 (Gogri, supra, 166 Cal.App.4th at p. 261.) Wilson does not contend her action is based on contract and the causes of action in her operative complaint are based exclusively on statute (violation of Bus. & Prof. Code, § 17200 et seq. and Civ. Code, § 2920.5 et seq.) or tort (wrongful foreclosure and negligence, fraud and negligent misrepresentation in connection therewith). The court therefore did not err in awarding discovery sanctions and attorney fees to Nationstar.

DISPOSITION

The trial court's February 2015 order is affirmed to the extent it awarded attorney fees to Nationstar and denied Wilson's motion to vacate the portion of the court's September 2014 order awarding discovery sanctions to Nationstar. In all other respects, the February 2015 order and amended judgment are reversed. The parties are to bear their own costs on appeal.

BENKE, Acting P. J. and O'ROURKE, J., concurs.