Judge: Richard Y. Lee, Case: 30-2022-01260983, Date: 2022-10-06 Tentative Ruling

Defendant, Yoder Development, Inc. (“Yoder”) filed a demurrer to Plaintiff’s Complaint, seeking an order sustaining its demurrer as to the third through seventh causes of action of the Complaint filed by Plaintiff, Marijana Lucic (“Plaintiff”).

Yoder also filed a motion to strike portions of Plaintiff’s Complaint, moving for an order striking portions of Plaintiff’s Complaint at the caption page, number 7; and at paragraph 3, lines 4-5 of the fraud cause of action relating to punitive damages.

The instant demurrer and motion to strike were filed on July 11, 2022.

On September 12, 2022, Plaintiff, in pro per, filed a “Notice of Dismissal” indicating that Yoder Development, Inc. has been dismissed, without prejudice. (ROA 51.)

A plaintiff may unilaterally dismiss the complaint before trial under Code of Civil Procedure section 581 which sets forth the situations in which a plaintiff may voluntarily dismiss the complaint or the entire action. (Sanabria v. Embrey (2001) 92 Cal.App.4th 422, 425.) An action may be dismissed “[w]ith or without prejudice, upon written request of the plaintiff to the clerk, filed with papers in the case, or by oral or written request to the court at any time before the actual commencement of trial, upon payment of the costs, if any.” (Code Civ. Proc. § 581(b)(1).)

“A written dismissal of an action shall be entered in the clerk’s register and is effective for all purposes when so entered.” (Code Civ. Proc. § 581d.) “Entry of dismissal is entered in the clerk’s register and is effective when entered [Citation.] Entry of dismissal terminates the action against the dismissed defendants. [Citation.]” (Sanabria v. Embrey (2001) 92 Cal.App.4th 422, 425.) “A request for entry of voluntary dismissal under Code of Civil Procedure section 581 is made by submitting Judicial Council Form 982(a)(5) [current Judicial Council Form CIV-110] to the clerk. The clerk enters the dismissal in the clerk’s register. [Citation.] The party requesting dismissal is required to serve and file notice of entry of dismissal. [Citation.]” (Id. at pp. 425-426.)

The Court notes that Judicial Council Form CIV-110, entitled, “Request for Dismissal” has a notation in the lower left hand corner indicating that it is a “Form Adopted for Mandatory Use.” “Forms adopted by the Judicial Council for mandatory use are forms prescribed under Government Code section 68511. Wherever applicable, they must be used by all parties and must be accepted for filing by all courts.” (California Rules of Court, rule 1.31(a).)

Here, Plaintiff did not use Judicial Council Form CIV-110 concerning a request for dismissal, which was adopted for mandatory use. In turn, dismissal has not been entered by the clerk. Nevertheless, the Court construes Plaintiff’s “Notice of Dismissal” as to Yoder, as indicating a request by Plaintiff to dismiss, without prejudice, Yoder from Plaintiff’s Complaint. The Court notes that no opposing papers have been filed by Plaintiff. Based on the foregoing, the Court dismisses Defendant, Yoder Development, Inc., without prejudice, as to Plaintiff’s Complaint filed on May 23, 2022. (ROA 22.)

Plaintiff to immediately give Notice of Entry of Dismissal and no later than ten (10) days of the notice of ruling.

Yoder’s demurrer to the Complaint and motion to strike portions of the Complaint are VACATED without prejudice to re-filing if Plaintiff fails to give Notice of Entry of Dismissal.

Yoder to give notice.