Provence

Ashland Chemical Company sued Ross Provence, Lee Epstein, and Ceramics International, Inc., on a promissory note and guaranty contract. The superior court sustained Provence’s demurrer without leave to amend and Ashland prematurely appealed. Then, realizing the court had not yet entered an appealable judgment, Ashland asked the clerk to dismiss the complaint with prejudice “only for the purpose of expediting appeal and in no way indicating] agreement or acquiesence [sic] with the Court’s ruling.” Ashland appeals the resulting judgment of dismissal.

Provence contends Ashland may not appeal after voluntarily dismissing its complaint (Parenti v. Lifeline Blood Bank (1975) 49 Cal.App.3d 331 [ 122 Cal.Rptr. 709 ]). However, 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. (See cases collected in Annot., 23 A.L.R.2d 664 , 673-675.) Here Ashland dismissed its complaint after the superior court sustained Provence’s demurrer without leave to amend. Moreover, it did so only to obtain a final judgment so it could…