Vacating a voluntary dismissal in California

Vacating a voluntary dismissal in California is the topic of this blog post.

Vacating a voluntary dismissal in California requires that a motion to vacate be filed pursuant to the provisions of Code of Civil Procedure section 581.

Code of Civil Procedure section 581 states in pertinent part that an action may be dismissed with or without prejudice by a plaintiff at any time before the actual commencement of the trial.

The Appellate Courts in the State of California have stated in published decisions that the right of a plaintiff to file a voluntary dismissal is not absolute as the meaning of the term “trial” is not restricted to jury or court trials on the merits, but also includes other procedures that effectively dispose of the case. These procedures include certain motions for summary judgment, demurrers, motions for terminating sanctions and similar motions.

Circumstances where vacating a voluntary dismissal in California is appropriate include cases where a general demurrer has been sustained without leave to amend, a general demurrer has been sustained with leave to amend but no amendment has been filed within the allotted time, and where all issues have been deemed admitted in favor of a defendant. Another example would be a plaintiff who files a voluntary dismissal instead of filing an opposition to a motion for summary judgment.

The California Courts have ruled that allowing a plaintiff to file a voluntary dismissal in circumstances such as the ones mentioned above would subject a defendant to continuous litigation, would not allow for the orderly and timely disposition of civil litigation and would delay any resolution of the validity of the pleading filed by the plaintiff. This would be contrary to the strong public policy in California of determining actions on their merits.

Attorneys or parties in California who would like to view a portion of a sample 13 page motion to vacate a voluntary dismissal in California that includes a memorandum of points and authorities with citations to case law and statutory authority can use the link shown below.

Sample Motion to Vacate Voluntary Dismissal in California by Stan Burman on Scribd


The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.  For licensed attorneys and law firms that need assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.