Judge Ralph C. Hofer, Case Number: 24NNCV06379, Date: 2025-04-11 Tentative Ruling

Plaintiff Shawn Forrester and plaintiff Matthew Johnson bring this action against their former employers, defendant BIPO Service USA Corp. and defendant Poizon, Inc., alleging that defendants engaged in race discrimination against plaintiffs, who were African American males, discriminating against them on the basis of their race, and wrongfully harassing them and creating a hostile work environment. The operative complaint, the First Amended Complaint (FAC), alleges that defendants retaliated against plaintiffs for seeking to exercise rights guaranteed under the California Fair Employment and Housing Act (FEHA), and subjected plaintiffs to inferior work assignments, working hours, and job conditions, and ultimately terminated each of them for discriminatory and retaliatory reasons.

The FAC alleges causes of action for race discrimination in violation of FEHA, harassment and hostile work environment, retaliation, failure to prevent/remedy discrimination and harassment in violation of FEHA, and wrongful termination in violation of public policy.

The file shows that on January 23, 2024, plaintiffs filed a Request for Dismissal, requesting that the action be dismissed with prejudice as to defendant Poizon, Inc. only. The dismissal was entered as requested the same date.

Plaintiffs Forrester and Johnson seek an order setting aside the dismissal with prejudice of defendant Poizon, Inc. (Poizon), arguing that plaintiffs’ counsel mistakenly requested the dismissal of Poizon, rather than defendant BIPO Service USA Corp., and mistakenly made such dismissal with prejudice instead of without prejudice, as was intended by plaintiffs.

“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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”

The trial court’s granting or denial of relief under this provision is reviewed for abuse of discretion. State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610. It is noted that appellate courts are traditionally “favorably disposed toward such action on the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies on their merits.” Mercantile Collection Bureau v. Pinheiro (1948) 84 Cal.App.2d 606, 608, citing Benjamin v. Dalmo Mfg. Co. (1947) 31 Cal.2d 523.

While the moving papers briefly argue that mandatory relief is liberally granted when accompanied by an attorney’s sworn affidavit attesting to mistake, inadvertence, surprise or neglect, the opposition argues that relief is not available under the mandatory provision of CCP section 473(b) based on an attorney affidavit of fault where a voluntary dismissal was requested and entered.

There is some question whether such mandatory relief is available in connection with a voluntary dismissal, as the resulting dismissal is not “entered against” the client, but rather has been requested. Huens v. Tatum (1997) 52 Cal.App.4th 259. The California Supreme Court in Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 256 has held that this circumstance does not present a bar to relief sought under the discretionary, rather than mandatory, provisions of the statute.

Counsel’s declaration here indicates that due to counsel’s “inadvertent and excusable,” mistake counsel filed a request to dismiss, with prejudice, Poizon, when at the time, counsel’s “intention was to dismiss Poizon without prejudice while Plaintiffs took the time to figure out certain case logistics, including who the proper Defendants are and how to best achieve service.” [DeCamp Decl., para. 2]. According to the motion, there was some confusion because prior to filing suit, plaintiffs requested their personnel files from Poizon, but received the files from BIPO, and that after serving BIPO a demand letter, a representative from Poizon responded. Uncertain as to which was the correct legal entity to pursue, plaintiffs intended to take time to sufficiently research which of the two parties, or both, were appropriate to name as defendants.

The reply clarifies that the error at issue sought to be corrected here is not dismissing Poizon, but dismissing it with prejudice, which is the aspect of the dismissal sought to be set aside. This action is a clear error on the part of counsel at the time, and as argued in the opposition, arguably not excusable neglect on the part of counsel, but inexcusable.

However, this situation appears to be a case where counsel exceeded the clients’ authority in dismissing the action against Poizon with prejudice. According to Weil & Brown, since a voluntary dismissal “affects the client’s substantive rights,” such a dismissal “requires the client’s express authority. Plaintiff’s attorney has no inherent or implied authority to dismiss the action without the client’s consent.” See Weil & Brown, California Practice Guide, Civil Procedure Before Trial (The Rutter Group, 2025 rev.) § 11:41.1, italics in the original, citing Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 404. “This is particularly true as to a dismissal with prejudice, because of its res judicata effect.” Id., italics in original.

Counsel’s declaration here clearly states counsel made a mistake, as counsel, “would not have dismissed Poizon, Inc. with prejudice as Plaintiffs’ intention was to determine whether suing Poizon was appropriate.” [DeCamp Decl., para. 5]. This showing is sufficient to establish an undisputed lack of authority in these circumstances. Hence, the court finds this ground an appropriate basis for setting aside the dismissal with prejudice.

The opposition argues that the mistake described does not make sense, but the court finds that the moving papers describe a mistake which does make sense given the two defendants each responding to communications directed at the other, and it should be encouraged that parties, if in doubt, investigate before formally pursuing a defendant which may not be a proper party. The opposition also argues that the relief sought, which appears to include leave to file a further amended pleading, is not appropriate and setting aside the dismissal would not accomplish what plaintiffs purportedly seek to accomplish as the operative complaint does not include sufficient allegations against Poizon.

It appears from the reply that plaintiffs are clarifying or correcting their position to indicate that the relief sought is in fact not to set aside the dismissal in its entirety, nor to file an amended pleading without advance leave of court, but limited to requesting that the court correct the dismissal of Poizon to be one without prejudice, rather than with prejudice. The reply indicates that plaintiffs understand that this relief would not automatically bring Poizon back into the case without further amendment of the pleadings or the filing of a new case. As so limited, the relief is granted.

Plaintiffs’ Motion for Relief from Entry of Dismissal of Poizon, Inc. With Prejudice Pursuant to Code of Civil Procedure Section 473(b) is GRANTED pursuant to CCP 473(b) based on counsel’s, mistake, surprise or excusable neglect, particularly in light of the inference which may be drawn from the moving papers that the request for dismissal filed by counsel on January 23, 2025 to the extent requested “with prejudice,” was indisputably made without the authority of the clients to dismiss the matter with prejudice. Dismissal “with prejudice” of this action as to defendant Poizon, Inc. is set aside, and the dismissal will be corrected to be entered “without prejudice.”

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