M & R Properties v. Thomson

Opinion

This case presents an issue of first impression: whether a plaintiff can obtain a voluntary dismissal of an action after the defendant has

On July 11, 1986, plaintiffs M & R Properties, Rex Nordson and Maria Nordson filed a complaint against defendants estate of Dr. William Dubilier, Edward N. Thomson and Joseph Bachert. The complaint was brought, in part, on the grounds of breach of contract. The contract contained a clause entitling the prevailing party to its attorney fees. When plaintiffs did not bring the matter to trial within five years, defendants moved for mandatory dismissal of the action, a procedure which would be a determination on the merits entitling defendants to their attorney fees. (Code Civ. Proc., §§ 583.310, 583.360; Civ. Code, § 1717; Elms v. Builders Disbursements, Inc. (1991) 232 Cal.App.3d 671 , 675 [ 283 Cal.Rptr. 515 ].) The motion was noticed for September 12, 1991, at 10:30 a.m. The court issued a tentative ruling on September 11 granting the motion. The ruling further provided that any oral argument would be heard on September 12 at 9 a.m. The local rules of court provide that a party desiring a hearing on the motion must contact the court and opposing counsel “by 4:30 p.m. of the court day preceding the scheduled hearing.” (Marin County Super. Ct. Rules, rule 2.9(b).) Plaintiffs did not request oral argument. Instead, on September 12, at 10:39 a.m., they filed a request for dismissal of the action without prejudice. The clerk entered the voluntary dismissal on the same day. Defendants discovered that plaintiffs had obtained the voluntary dismissal when they sent plaintiffs a proposed order granting the motion for mandatory dismissal. Upon defendants’ motion, and over plaintiffs’ request for relief on the grounds of surprise, inadvertence or excusable neglect (Code Civ. Proc., § 473), the court vacated the voluntary dismissal and entered an order of mandatory dismissal. Plaintiffs appeal from these orders.

Discussion

We first consider the effect of the tentative ruling. The ruling stated the court’s intention to grant the defendants’ motion to dismiss. It provided that the ruling would determine the parties’ rights unless plaintiffs took affirmative steps to obtain a hearing on the matter. Plaintiffs were given until 4:30 p.m., September 11, to take those steps. When plaintiffs failed to act, the tentative ruling became the ruling of the court. It follows that as of 4:30 p.m., September 11, there was a ruling determining the rights of the parties.

There is no question but that plaintiffs’ September 12 voluntary dismissal would have been too late had the September 11 ruling resulted in actual

Plaintiffs, however, argue that their right to obtain a voluntary dismissal prior to commencement of trial is “absolute,” implying that it is therefore superior to defendants’ right to mandatory dismissal. A defendant’s right to a mandatory dismissal for failure to prosecute, and the defendant’s attendant right to a “determination on the merits” is no less absolute. In plaintiffs’ view, a plaintiff will always be able to defeat a defendant’s right to obtain a determination on the merits—no matter how meritless the action—by simply requesting a voluntary dismissal after failing to commence trial within the statutory period. In this view, the plaintiff’s interest prevails even though the plaintiff has done nothing until after the defendant has moved for a mandatory dismissal, and until after a court has ruled on the defendant’s motion. We decline to balance the competing rights in such a fashion as to render a defendant’s motion for mandatory dismissal pointless, and the ruling of the court on that motion a nullity.

We have found no case specifically considering the effect of a ruling on a motion to dismiss on a plaintiff’s right to a voluntary dismissal. There is, however, abundant authority for the general proposition that a plaintiff’s right to a voluntary dismissal is cut off as of the moment there is a ruling which effectively disposes of the case. Chief among the relevant cases is Wells v. Marina City Properties (1981) 29 Cal.3d 781 [ 176 Cal.Rptr. 104 , 632 P.2d 217 ]. The court there determined that the specific cutoff points enumerated in section 581 are not exclusive; rather the statutory language simply creates limits to the right to voluntary dismissal additional to those established by the case law. (29 Cal.3d at pp. 787-789.) The court cited established law that the plaintiff’s right to a voluntary dismissal is cut off upon a ruling which “ ‘will effectively dispose of the case,’ ” such as when a demurrer to the complaint is sustained without leave to amend. (Id. at p. 785, and see also discussion at pp. 786-787.) The court found that the same principles apply to cut off the right of the plaintiff to seek voluntary dismissal upon the expiration of the time to amend following the granting of a demurrer with leave to amend. As relevant here, the Wells court made it clear that the plaintiff’s right is cut off once it is established that there will be

It is not true, as plaintiffs claim, that the only decisions which cut off the right to a voluntary dismissal are those which in some way adjudicate the merits of an action. Section 581, in focusing on “commencement of trial,” certainly requires no adjudication of the merits. Indeed, that section was amended to include language of “commencement” in response to concerns that a plaintiff might be able to obtain a voluntary dismissal after the parties had engaged in litigation but before the merits had been fully adjudicated. (Wells v. Marina City Properties, Inc., supra, 29 Cal.3d at p. 788.) In any event, the merits of plaintiffs’ instant argument are laid to rest by the Wells court’s express citation to London v. Morrison (1950) 99 Cal.App.2d 876 [ 222 P.2d 941 ] for the proposition that something other than commencement of trial can act as the cutoff date for voluntary dismissal. The situation in London perhaps most closely parallels our own. In that case, the complaint had been filed in Los Angeles, but the action had been ordered transferred to San Diego. At that time section 581b provided that such an action “must be dismissed by the court in which the action . . . was originally commenced . . . where the costs and fees [of transfer] have not been so paid for one year after the entry of the order for transfer.” The plaintiffs failed to file the requisite transfer fees within the specified time period. The defendants, accordingly, filed a motion to dismiss the action. The plaintiffs filed a request for voluntary dismissal after the defendants’ motion was filed, but before it was heard. The court found that the plaintiffs had no right to a voluntary dismissal. “By filing the voluntary dismissal, they undertook to defeat respondents of such rights as might attach to a judgment of dismissal. They knew that a year had elapsed after entry of the order of transfer and that respondents have already filed their motion for a dismissal of the action under the provisions of section 581b. In filing the voluntary dismissal they were in no better position than is the plaintiff who files a dismissal after a cause has been fully tried or a demurrer sustained without leave to amend. Whenever such action has been attempted it ended disastrously for the

The court in London, therefore, held that the plaintiffs’ right to a voluntary dismissal was cut off once the defendants’ right to a mandatory dismissal had become fixed, whether or not by an actual ruling of the court, and irrespective of whether that ruling in any way adjudicated the merits of the case. The Supreme Court in Wells did not fully adopt the holding indicating, rather, that the cutoff date should run from some sort of ruling, at least when the motion to dismiss might be denied. (Wells v. Marina City Properties, Inc., supra, 29 Cal.3d at pp. 789-790, and see Christensen v. Dewor Developments (1983) 33 Cal.3d 778 , 785 [ 191 Cal.Rptr. 8 , 661 P.2d 1088 ], and Cal-Vada Aircraft, Inc. v. Superior Court (1986) 179 Cal.App.3d 435 , 442-443 [ 224 Cal.Rptr. 809 ].) The Wells court did, however, approve by implication that no adjudication of the merits was necessary to cut off the plaintiffs’ right to a voluntary dismissal. Thus, the opinion in Wells supports the conclusion that a plaintiff’s right to a voluntary dismissal is cut off no later than the time of a ruling effectively disposing of the case (or at the end of a time period specified in that ruling), whether or not that disposition involves an adjudication of the actual merits of the action. We adopt that conclusion. In addition, we conclude, as have all other courts which considered the matter, that when there is a conflict between a plaintiff’s right to voluntary dismissal and a defendant’s right to a mandatory dismissal, the defendant’s right prevails.

The order vacating plaintiffs’ voluntary dismissal and the order dismissing the case for failure to bring to trial within five years are affirmed.

Newsom, Acting P. J., and Dossee, J., concurred.

Appellants’ petition for review by the Supreme Court was denied February 18, 1993.