Tuesday, April 17, 2018

Eject!!!

Shapira v. Lifetech Res., No. B283445 (D2d4 Apr. 17, 2018)

At trial, prior to making his closing argument, Plaintiff, sensing he was going down, tried to dismiss his case with prejudice under Code of Civil Procedure § 581(e). The trial court denied the motion and, after ruling for Defendant on the merits, awarded Defendant a substantial amount of attorneys' fees under Civil Code § 1717. 

But that was error.

Section 581(e) expressly permits a plaintiff to voluntarily dismiss a case, with prejudice, after the commencement of trial. If the dismissal is requested prior to the case being submitted for decision—which was not the case here because closings were not complete—leave of court is not required. So the trial court didn't have authority to deny the dismissal. And since Civil Code § 1717(b)(2) says there is no prevailing party when a case is terminated by voluntary dismissal, it was therefore also error to award fees to defendant. 

It might not seem fair to let Plaintiff weasel out of a fee award when he bailed while on the cusp of losing, but that’s what the law says.

Reversed.

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