Ashland Chemical Co. v. Provence

In Ashland Chemical Co. v. Provence (1982) 129 Cal. App. 3d 790, the plaintiff dismissed the complaint with prejudice after the trial court had sustained a defendant's demurrer without leave to amend. The plaintiff expressly dismissed the complaint " 'only for the purpose of expediting appeal,' " to obtain a final judgment to enable it to contest the court's ruling. (Id. at p. 792.) On appeal the court rejected the defendant's contention that the plaintiff may not appeal after voluntarily dismissing its complaint, noting, "many courts have allowed appeals by plaintiffs who dismissed their complaints after an adverse ruling by the trial court, on the theory the dismissals were not really voluntary, but only done to expedite an appeal." (Id. at p. 793.) The trial court sustained the defendant's demurrer without leave to amend, and the plaintiff prematurely appealed. (Id. at p. 792.) Realizing that the trial court had not yet entered an appealable judgment, the plaintiff asked the clerk to dismiss the complaint with prejudice solely for the purpose of expediting the appeal and in no way indicating agreement with, or acquiescence in, the court's ruling. (Ibid.) The court found that, under those circumstances and particularly because the plaintiff dismissed its complaint only to obtain a final judgment so it could contest the court's ruling, the plaintiff's request for a dismissal was tantamount to a request to enter judgment on the defendant's demurrer and the appeal would be permitted. (Id. at p. 793.)