A Hearing Delayed Is a Hearing Nonetheless.

Pielstick v. Midfirst Bank, No. B247106 (D2d2 Mar. 26, 2014)

Defendants demurred the second amended complaint brought by plaintiff, who is a pro per. At the hearing on the demurrer, the case was called, but defendants explained that they not received plaintiff’s opposition. The court twice continued the hearing to later in the day so that the court and the defendants could read plaintiff’s papers. At the continued hearing plaintiff asked to dismiss his case without prejudice under Code of Civil Procedure § 581, which permits a plaintiff to voluntarily to dismiss with or without prejudice “any time before the actual commencement of trial[.]” The court denied the request and granted the demurrer.

Read literally, § 581 would permit plaintiffs to perpetually delay the inevitable by dismissing a case without prejudice in order to avoid an impending adverse decisions on a dispositive motion. To prevent this result, courts have put a gloss on “commencement of trial” as it appears in § 581 to encompass any hearing on a dispositive motion, including a demurer. Thus, plaintiff could have dismissed his case without prejudice at any time before the demurrer hearing. But he didn’t do that. He asked to dismiss after the hearing was underway. Indeed, his request came after it had been continued twice. Reviewing the relevant precedent, the court holds that trial had begun for the purposes of § 581: “Where a trial court has allowed a brief continuance of a dispositive hearing for a limited purpose, a plaintiff is not entitled to utilize that time to file a voluntary dismissal of the action with the intention of reasserting the same allegations at a later date.” Plaintiff’s request was thus untimely.

Affirmed.