Judge: David B. Gelfound, Case: 23CHCV01495, Date: 2024-10-30 Tentative Ruling

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Case Number: 23CHCV01495    Hearing Date: October 30, 2024    Dept: F49

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F49

MOTION TO AMEND DISMISSAL

Motion filed: 6/20/24

MOVING PARTY: Plaintiff Ely Obverto Perla

RESPONDING PARTY: None.

NOTICE: OK.

RELIEF REQUESTED: An order granting Plaintiff’s motion to amend dismissal of the entire action from “without prejudice” to “with prejudice.”

TENTATIVE RULING: The motion is GRANTED IN PART.

BACKGROUND

This action arises from alleged personal injuries and damages sustained by Plaintiff Ely Obverto Perla (“Plaintiff” or “Perla”) as a result of an automotive collision on June 21, 2021.

On May 22, 2023, Plaintiff filed the Complaint against Defendant Ningyalai Amiri (“Defendant” or “Amiri”) and Does 1 to 10, alleging the following causes of action: (1) Motor Vehicle Liability, and (2) General Negligence. Subsequently, on July 18, 2023, Amiri filed the Answer to the Complaint.

            On May 16, 2024, Plaintiff filed a Request for Dismissal, dismissing the Complaint without prejudice, which was entered by the Clerk on the same day.

            On June 20, 2024, Plaintiff filed the instant Motion to Amend Dismissal (the “Motion”).

            No Opposition or Reply papers have been received by the Court.

ANALYSIS

“A plaintiff may dismiss his or her complaint, or any cause of action asserted in it, in its entirety, or as to any defendant or defendants, with or without prejudice prior to the actual commencement of trial.” (Code Civ. Proc., § 581, subd. (c).)

Numerous cases note that voluntary dismissal of a lawsuit terminates the trial court's jurisdiction over the matter. (Aetna Casualty & Surety Co. v. Humboldt Loaders, Inc. (1988) 202 Cal.App.3d 921, 931; Associated Convalescent Enterprises v. Carl Marks & Co., Inc. (1973) 33 Cal.App.3d 116, 120.) (But see, Basinger v. Rogers & Wells (1990) 220 Cal.App.3d 16, 21–22 [which notes the breadth of this statement must be limited so as to except the trial court's retention of jurisdiction to vacate the dismissal upon motion of a party pursuant to Code of Civil Procedure section 473].)

Code of Civil Procedure section 473, subdivision (b) provides, in part, “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473, subd. (b).) Plaintiff or Cross-Complainant has standing to move to vacate and set aside their voluntary dismissal. (See W.Bradley Electric, Inc. v. Mitchell Engineering (2024) 100 Cal.App.5th 1.)

A.    Motion to Amend Dismissal

Plaintiff moves to dismiss the Complaint and the entire action of all parties and all causes of action with prejudice. Plaintiff also acknowledges that he has previously requested a voluntarily dismissal without prejudice.

Plaintiff’s counsel, Bobby Waltman (“Waltman”), attests that “[t]he parties resolved this matter and it was Plaintiff’s intention to dismiss this entire action with prejudice but, due to my error in completing the request for dismissal, I accidentally filed the request for dismissal without prejudice.” (Waltman Decl. ¶ 2.)

Moreover, Waltman states, “I called Mr. Mark Lobre, defense counsel, after he alerted me to my mistake in dismissing this action without prejudice, and I let him know that I would file a motion to amend the request for dismissal to be ‘with prejudice,’ which he was in support of and agreed to.” (Waltman Decl. ¶ 3.)

The Court notes that the case file reflects two Request for Dismissal were filed on the same day, May 16, 2024; one requesting dismissal with prejudice and the other without prejudice. The Court clerk first entered the request for dismissal without prejudice. Consequently, the request for dismissal with prejudice was not entered, as the action had already been dismissed without prejudice based on the earlier entry.

Based on the above records and declarations, the Court finds that Plaintiff has sufficiently demonstrated the existence of mistake, inadvertence, surprise, or excusable neglect.

Therefore, the Court GRANTS IN PART the Motion, vacating and setting aside the voluntary dismissal without prejudice, entered on May 16, 2024, pursuant to Code of Civil Procedure section 473, subdivision (b).

Plaintiff may now file a proper voluntary dismissal with prejudice in accordance with Code of Civil Procedure section 581, subdivision (c).

CONCLUSION

Plaintiff Ely Obverto Perla’s Motion to Amend Dismissal is GRANTED IN PART, consistent with the above ruling.

Moving party to provide notice.