Steinberg v. Hultman

Filed 3/15/06 Steinberg v. Hultman CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

George H. Hultman II appeals from an order denying his post-judgment motion to vacate a dismissal without prejudice filed by plaintiff/respondent Sharon L Steinberg. (Code Civ. Proc., § 581, subd. (b)(1).)^[1] Hultman claims that Steinberg dismissed her complaint to avoid summary judgment and for the improper purpose of refiling the action. The trial court denied Hultman's ex parte motion to enter a dismissal with prejudice or, in the alternative, grant summary judgment. There was no abuse of discretion and we affirm the post-judgment motion. .

After Steinberg moved to Camarillo, she was sued by a neighbor for obstructing an easement. (Lucci v. Steinberg, Ventura County Sup. Ct. No. CIV181220.) Steinberg settled the matter by entering into a confidential settlement agreement.

A second neighbor, Hamm, hired Attorney Hultman and sued to access the road easement. (Hamm, et al v. Steinberg, Ventura County Sup. Ct. No. CIV196719.) Steinberg filed a cross-complaint alleging violation of the confidentiality clause in the Lucci settlement agreement. The matter was tried and the jury, by special verdict, found no breach of the confidentiality clause.

On May 24, 2004, Steinberg sued Hultman for violation of the confidentiality clause in the Lucci settlement agreement. Hultman moved for summary judgment/summary adjudication and calendared the motion for June 20, 2005. (§ 437c.)

On June 8, 2005, Steinberg dismissed the action without prejudice. (§ 581, subd. (b)(1).)

On June 17, 2005, Hultman brought an ex parte motion, requesting that the trial court "correct" the dismissal to reflect that it was with prejudice, or in the alternative, that the trial court grant summary judgment. Hultman claimed that Steinberg had a history of filing groundless actions, dismissing the actions without prejudice, and then refiling the actions.

The trial court denied the motion on the ground that Steinberg "voluntarily dismissed without prejudice. The effect is that the pending motion for summary judgment is moot. The Court is not inclined to exercise any discretion it may have to alter the nature of the voluntary dismissal based on an unproved theory that the [dismissal] is a deliberate attempt to subvert the ability of the defendant to gain a favorable disposition."

Discussion

Section 581, subdivision (b)(1) provides that a plaintiff may dismiss an action with or without prejudice "at any time before the actual commencement of trial."^[2] The phrase "actual commencement of trial" has been construed to bar voluntary dismissals without prejudice where the plaintiff files the dismissal on the verge of trial or to avoid termination sanctions or summary judgment. (Groth Bros. Oldsmobile, Inc. v. Gallagher (2002) 97 Cal.App.4th 60, 69-70.) "These exceptions generally arise where the action has proceeded to a determinative adjudication, or to a decision that is tantamount to an adjudication." (Harris v. Billings (1993) 16 Cal.App.4th 1396, 1402.) In Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 785, our Supreme Court stated that the policy disfavoring tactical voluntary dismissals is to prevent plaintiffs from avoiding adverse decisions and starting the action anew, thereby subjecting the defendant to annoying and continuous litigation. " ' "If [plaintiff] could do so, litigation would become interminable, because a party who was led to suppose a decision would be adverse to him could prevent such decision and begin anew, thus subjecting the defendant to annoying and continuous litigation." ' [Citation.]" (Id., at

p. 785.)

Citing Cravens v. State Bd. of Equalization (1997) 52 Cal.App.4th 253, Hultman argues that a plaintiff loses the right to voluntarily dismiss where the defendant's pending summary judgment motion has ripened to the point that a grant of summary judgment is virtually guaranteed. In Cravens, the plaintiff did not oppose defendants' summary judgment motion and filed a dismissal without prejudice the day before the hearing on the summary judgment motion. Defendants had no notice of the dismissal, appeared, and were granted summary judgment. (Id., at p. 256.) It was an egregious case because the dismissal was secretly filed at the eleventh hour after the trial court made a tentative ruling on the summary judgment motion. (Id., at p. 257.) The Court of Appeal held that "entry of summary judgment in favor of [defendant was] a formality which [plaintiff] could not avoid by the stratagem of filing a last minute request for dismissal without prejudice." (Ibid.)

Unlike Cravens, the trial court did not rule on the merits of Hultman's summary judgment motion and there was no evidence that Steinberg secretly filed the dismissal to thwart a dispositive ruling. The trial court reasonably concluded that there is no bright line rule as to when a plaintiff loses the right to voluntarily dismiss without prejudice. (See Weil & Brown, Cal. Practice Guide, Civil Procedure Before Trial (Rutter 2005) [¶] 11:25.1, pp. 11-11 to 11-12; Groth Bros. Oldsmobile, Inc. v. Gallagher, supra, 97 Cal.App.4th at p. 70.) A plaintiff may dismiss without prejudice where "no hearing on the [summary judgment] motion had been held and no tentative ruling or other decision tantamount to an adjudication had been made in [defendants'] favor." (Zapanta v. Universal Care, Inc. (2003) 107 Cal.App.4th 1167, 1173 [dismissal filed one day before summary judgment opposition papers due].) "[E]very court to consider this issue has based its holding on the facts and circumstances surrounding the dismissal, evaluating whether allowing the dismissal to stand would be unfair or would endorse dishonest litigation tactics." (Tire Distributors, Inc. v. Cobrae (2005) 132 Cal.App.4th 538, 544.)

The record supports the finding that the dismissal was filed in good faith. Steinberg attempted to settle the matter by faxing Hultman a settlement proposal and proposed voluntary dismissal on June 3, 2005. Hultman did not respond. Steinberg filed the voluntary dismissal on June 8, 2005, 12 days before the June 20, 2005 hearing on the summary judgment motion. In opposing Hultman's motion to strike the dismissal, counsel for Steinberg stated: "She has no intention of refiling any new action against Mr. Hultman on the basis of the facts claimed in her complaint against him. I think that's kind of the point of her voluntary dismissal."

Hultman did not want to be foreclosed from bringing an action for malicious prosecution or seeking sanctions. The trial court found that Steinberg had already dismissed the action and "we'll just have to see what she does next." It found that Hultman "can't deliberately string it out [to] fatten up your claim for malicious prosecution . . . ."^[3]

No abuse of discretion occurred. (Tire Distributors, Inc. v. Cobrae, supra, 132 Cal.App.4th at p. 544.) It is a well-established public policy that settlements are favored and should be encouraged, even when a defendant is unwilling to settle. (Villa v. Cole (1992) 4 Cal.App.4th 1327, 1338.) For example, a plaintiff may voluntarily dismiss an action to preclude a motion for sanctions. (Hart v. Avetoom (2002) 95 Cal.App.4th 410, 414-415 [dismissal without prejudice precluded § 128.7 sanctions].) "The law favors the resolution of disputes. 'This policy would be ill-served by a rule which would virtually compel the plaintiff to continue his litigation in order to place himself in the best posture for defense of a malicious prosecution action.' [Citation.]" (Oprian v. Goldrich, Kest & Associates (1990) 220 Cal.App.3d 337, 344-345.)

The judgment (order denying motion to strike voluntary dismissal without prejudice) is affirmed. The parties shall bear their own costs on appeal.

NOT TO BE PUBLISHED.

YEGAN, Acting P.J.

We concur:

COFFEE, J.

PERREN, J.

Steven Hintz, Judge

Superior Court County of Ventura

______________________________

Jeffrey A. Brightwell, for Appellant.

Mark R. Wietstock, for Respondent.

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^[1] All statutory references are to the Code of Civil Procedure.

^[2] Section 581, subdivision (b) states in pertinent part: "An action may be dismissed in any of the following instances: [¶] (1) With 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." (Emphasis added.)

^[3] We take judicial notice of the superior court minutes which reflect that Hultman filed a $698.50 cost bill after the dismissal was entered.