Judge: Martha K. Gooding, Case: 22-01280865, Date: 2023-08-21 Tentative Ruling
Motion to Set Aside/Vacate Dismissal
The Court GRANTS the Motion by Plaintiffs Mark Forbush and Carol Forbush (collectively, “Plaintiffs”) to vacate the Dismissal with Prejudice filed in this action on 9/19/22 and to permit them to file a dismissal of the action without prejudice.
A. Facts
On 9/14/22, Plaintiffs sued Defendant Hamilton Cove Homeowners Association for breaches of the CC&Rs, statutory violations, breach of fiduciary duty, negligence, declaratory relief, and injunctive relief. (ROA 2).
Just five days later, on 9/19/22, prior to service on Defendant or any appearance by Defendant, Plaintiffs filed a request for dismissal of the entre action with prejudice. (ROA 12).
The paralegal for Plaintiffs’ counsel, Ms. Jimenez, testifies that she mistakenly filed the case in Orange County and the Clerk told her to dismiss it and refile in Los Angeles. (Jimenez Decl., ¶¶1, 2.) The caption filed in this action clearly shows that the action was intended to be filed in Los Angeles County; it appears the clerk crossed out “Los Angeles” on the caption page and inserted “Orange.” (ROA 2) When Ms. Jimenez realized the proper venue of the case was Los Angeles (because the property at issue is located in Los Angeles County), she drafted and filed the Request for Dismissal, checking the box that the dismissal was with prejudice. (Jimenez Decl., ¶2.)
On 9/22/22, just a few days later, Ms. Jimenez re-filed the identical Complaint in Los Angeles Superior Court. (Jimenez Decl., ¶3; RJN Ex. 1.)
Plaintiffs’ counsel, Mr. Ross (who represents Plaintiffs both on this Motion and in the Los Angeles action), testifies that neither he nor Plaintiffs had any knowledge the case had been filed in the wrong county or that it had been dismissed with prejudice by his paralegal. (Ross, Esq. Decl., ¶¶3, 4.) Mr. Ross testifies he had no authority from his clients to dismiss this case with prejudice. (Ross Esq. Decl., ¶7.)
Mr. Ross determined that he needed to take action when the Defendant filed a motion for judgment on the pleadings in the Los Angeles case based on the erroneous dismissal with prejudice in this case, arguing res judicata. (RJN, Ex. 2.) This Motion was filed days later. (ROA 21).
Trial is set in the second action in Los Angeles Superior Court on September 25, 2023, in Department S-26. (Ross, Esq. Decl., ¶2.)
B. Merits
Plaintiffs move under CCP section 473(d), citing significant authority holding that “dismissal of a cause of action by an attorney acting without any authority from his client is an act beyond the scope of his authority which, on proper proof, may be vacated at any time. ...” (Whittier Union High Sch. Dist. v. Superior Court (1977) 66 Cal.App.3d 504, 509; see also Bowden v. Green (1982) 128 Cal.App.3d 65, 73–74 [where attorney dismissed cross-complaint without client's authority, court held: “Because counsel's dismissal stipulation was wholly unauthorized and was made without the knowledge or consent of his clients, it could not form the basis of a valid judgment”]; Bice v. Stevens (1958) 160 Cal.App.2d 222, 233 [trial court abused its discretion when it refused to vacate dismissal with prejudice entered by attorney who lacked client authorization].)
In Romadka, the attorney erroneously entered a voluntary dismissal of the client’s case with prejudice, instead of without prejudice. (Romadka v. Hoge (1991) 232 Cal.App.3d 1231, 1237.) While attorneys are “ ‘authorized by virtue of [their] employment to bind [their] client[s] in procedural matters arising during the course of the action [, they] may not impair the[ir] client[s'] substantial rights or the cause of action itself.’ (Linsk v. Linsk (1969) 70 Cal.2d 272, 276.)” (Id. at p. 1235.) The attorney's unauthorized dismissal of the case with prejudice was held to be invalid in Romadka because it disposed of the client's substantive rights. “ ‘[D]ismissal of a cause of action by an attorney acting without any authority from his client is an act beyond the scope of his authority which, on proper proof, may be vacated at any time. ...’ (Whittier Union High Sch. Dist. v. Superior Court (1977) 66 Cal.App.3d 504, 509.)” (Id. at p. 1236.)
“An attorney's unauthorized disposition of clients' substantive rights is invalid and a judgment based thereon is therefore void.” (Romadka v. Hoge, supra, 232 Cal.App.3d at p. 1236; see also Bowden v. Green (1982) 128 Cal.App.3d 65, 73–74 [where attorney dismissed cross-complaint without client’s authority, court held: “Because counsel's dismissal stipulation was wholly unauthorized and was made without the knowledge or consent of his clients, it could not form the basis of a valid judgment”]; Bice v. Stevens (1958) 160 Cal.App.2d 222, 233 [trial court abused its discretion when it refused to vacate dismissal with prejudice entered by attorney who lacked client authorization].)
Based on the evidence presented to the Court, it is clear that neither Plaintiffs nor Mr. Ross authorized this case to be dismissed with prejudice.
Defendant argues that a showing of diligence is required because the court is invoking its equitable authority. The Court is not persuaded. Defendant cites no case on point showing a time limit or diligence requirement on the facts presented here.
Finally, even if there were a diligence requirement, the Court finds that the requirement would apply to the Plaintiffs and not to the attorney whose employee filed the erroneous dismissal with prejudice. A dismissal with prejudice clearly disposes of the client’s substantive rights and therefore requires for its validity the authorization of the client. (Romadka, supra, 232 Cal.App.3d at p. 1236.)
On the evidence presented here, there is no conceivable reason to dismiss the action with prejudice rather than without prejudice. The clients should not be penalized for this error when there is no evidence presented to show their knowledge of the dismissal at any time.
The 9/19/22 dismissal with prejudice is hereby vacated. Plaintiffs may file a dismissal without prejudice.
Plaintiffs are ordered to give notice.