I respectfully dissent.
The majority opinion is premised on a perceived inconsistency between Code of Civil Procedure section 581, subdivisions 1 and 3, which requires the court to construe the section and resolve the conflict.1 I find no inconsistency. Subdivision 1 of section 581 in plain language permits dismissal by the plaintiff at any time before the actual commencement of trial as defined by the statute. Subdivision 3 permits dismissal by the court, as pertinent herein, when a demurrer is sustained with leave to amend and the plaintiff fails to amend within the time allowed by the court and either party moves by noticed motion for dismissal.
When leave to amend is granted, the action remains viable until one of two events occurs: 1) the defendant moves for dismissal for failure of plaintiff to timely amend and the court dismisses the action, or 2) the trial commences. The mere filing of the notice to dismiss does not effect a dismissal. The trial court is required to exercise its discretion2 in determining if the action should be dismissed for plaintiff’s neglect in amending. The failure to amend does not ipso facto mean the plaintiff has opted to stand on the complaint. There may be an acceptable reason for not amending within the time limits or the plaintiff may intend to move for relief under section 473. I am mindful the plaintiff in the instant case did not seek section 473 relief but relied on what was believed to be a valid dismissal divesting the court of further jurisdiction. *791But this analysis is particularly appropriate in this case wherein, at least in my view, the defendant was quick at the starting gate in filing the motion to dismiss nine days after the time to amend had elapsed without a courtesy reminder to opposing counsel.3
The language of subdivisions 1 and 3 is clear and unambiguous. There is no need to construe the language and harmonize the provisions, and the courts “should not indulge in it.” (Solberg v. Superior Court (1977) 19 Cal.3d 182, 198 [137 Cal.Rptr. 460, 561 P.2d 1148].)
The majority poses the critical question of what are the time limits within which a voluntary dismissal may be effected. Neither that question nor its corollary of when does a trial on an issue of law commence is correctly answered. Reliance is placed on Goldtree v. Spreckels (1902) 135 Cal. 666 [67 P. 1091], decided when the statute at issue permitted a plaintiff to dismiss an action “at any time before trial.” But the ruling of Goldtree is simply that the dismissal statute encompasses a trial of law as well as a trial of fact and a hearing on a demurrer in which the demurrer is sustained without leave to amend is a final determination of the matter, foreclosing plaintiff’s right to dismiss. The majority quotes from Goldtree but omits that crucial language which clearly indicates it is the entry of a judgment which precludes voluntary dismissal. Thus, the complete statement from Goldtree is; “... there may be such a trial on a general demurrer to the complaint as will effectually dispose of the case where the plaintiff has properly alleged all the facts which constitute his cause of action. If the demurrer is sustained, he stands on his pleading and submits to judgment on the demurrer, and, if not satisfied, has his remedy by appeal. In such a case, we think, there would be a trial within the meaning of the code, and the judgment would cut off the right of dismissal, unless it was first set aside or leave given to amend.” (Goldtree v. Spreckels, supra, 135 Cal. at pp. 672-673; italics added.)
The Goldtree holding was concerned only with a demurrer sustained without leave to amend.4
*792However, the majority extrapolates this holding to apply to those cases in which leave to amend is granted, relying on dictum that “‘When a general demurrer to a petition is sustained, and the plaintiff declines to amend, he practically confesses that he has alleged in his pleading every fact he is prepared to prove in support of his action. Therefore, in such a case, nothing remains to be done except to render judgment for the defendant....” (Id., at p. 672.) Even this dictum contemplates a definitive act by the plaintiff—a declining to amend, and the entry of a judgment. Neither of these factors are present here and I conclude the precedential value of Goldtree, if any remains, is limited to hearings on demurrers sustained without leave to amend.
In 1947, subdivision 1 was amended to its present form to allow a plaintiff to dismiss “at any time before the actual commencement of trial,” which is defined as “the beginning of the opening statement of the plaintiff, or his counsel, and if there shall be no opening statement of the plaintiff or his counsel, then at the time of administering of the oath or affirmation to the first witness, or the introduction of any evidence .. .. ” The majority, having resolved the alleged conflict between subdivisions 1 and 3, then determines that subdivision 3 as amended “did not address the issue before us, namely, when does the trial of an issue of law commence?” (Ante, p. 788.) The rationale for this somewhat puzzling conclusion is that the amendment was aimed at eliminating the practice of plaintiffs dismissing actions at commencement or during trial and refiling anew; that it would subvert this legislative purpose to construe the amendment “as extending the opportunities for voluntary dismissal beyond those recognized by Goldtree.” (Ante, p. 788.) The flaw in such reasoning is that the legislative purpose is not being served. If that purpose be to prevent voluntary dismissals during trial, the purpose is accomplished by prohibiting voluntary dismissals after commencement of trial and by statutorily defining when a trial commences.
I perceive no extension of or conflict with Goldtree. Simply stated, a plaintiff may not dismiss without prejudice after a demurrer is sustained without leave to amend (Goldtree) or after commencement of trial (§ 581, subd. 1).
*793The issue is essentially one of. jurisdiction. A voluntary dismissal divests the court of jurisdiction as does an involuntary dismissal ordered by the court. Implicit recognition of this is found in the language of subdivision 3 which distinguishes between actions in which a demurrer is sustained without leave and those in which leave is granted but the plaintiff fails to timely amend. In the former situation, the court is empowered to enter the dismissal without more; in the latter the court may order dismissal only on motion of a party. It is the order of dismissal which divests the court of jurisdiction, not the running of the time for amendment or noticing the motion to dismiss.
Consistent with this opinion, I would disapprove the dictum of Parenti v. Lifeline Blood Bank (1975) 49 Cal.App.3d 331 [122 Cal.Rptr. 709], that the right to voluntary dismissal may be exercised after an order sustaining a demurrer without leave to amend. United Shippers, Inc. v. Superior Court (1980) 104 CaI.App.3d 359 [162 Cal.Rptr. 871] does not address the issue before us as no decision on the demurrer had been made at the time of the voluntary dismissal. In dictum, the majority approved the holding that a voluntary dismissal may be entered after a demurrer is submitted but before a decision has been rendered.5 This approval appears to further obfuscate the issue of when a trial of law commences. According to the majority, in demurrer hearings, it is when the demurrer is sustained without leave or if leave is granted upon expiration of the time to amend, no amendment having been made. By its dictum, the majority now has the trial of law commencing upon the ruling of the court sustaining the demurrer. If sustained with leave, we have the situation that plaintiff is precluded from dismissing even during the time to amend and the distinction between without and with leave becomes meaningless.
I would affirm the order vacating the dismissal with prejudice.
Bird, C. J., concurred.
Respondent’s petition for a rehearing was denied September 16, 1981. Bird, C. J., was of the opinion that the petition should be granted.
A11 further statutory references, unless otherwise noted, are to the Code of Civil Procedure.
Section 581 provides: “An action may be dismissed in the following cases: ...” (Italics added.)
I do not mean to condone procrastination and slothfulness on the part of attorneys, but as a former practicing attorney, I am aware of the problems of inept personnel who fail to calendar or miscalendar deadlines and the burden of determining priorities in the workload of a busy attorney.
Under the somewhat peculiar facts of that case, a demurrer was sustained to two of three causes of action in the complaint. When trial commenced on the third cause of *792action, plaintiff moved to dismiss the two causes to which the demurrer had been sustained. The motion was denied and judgment entered for defendant. The plaintiff appealed from that judgment and secured a reversal of the adverse ruling on the demurrer.
“... we note that such right of voluntary dismissal, ... would not be impaired pri- or to a decision sustaining the demurrer....” (Ante, pp. 788, 789.)