Viani

BACKGROUND

Plaintiffs sued Fair Oaks Estates based on an alleged injury sustained by the decedent while a facility employee moved her. Plaintiffs alleged the injury caused the decedent’s health to suddenly deteriorate, resulting in her death eight days later. The trial court granted a motion by Fair Oaks Estates for summary adjudication as to the negligence and wrongful death causes of action. Rather than proceed to trial on the remaining breach of contract claim, plaintiffs’ attorney sought to challenge the summary adjudication decision in an appeal to this court. He did so by voluntarily dismissing the entire action without prejudice. He then appealed from that voluntary dismissal. This court dismissed the appeal, concluding “a voluntary dismissal without prejudice is not a final judgment appealable on the merits.” (Viani v. Fair Oaks Estates, Inc., supra,

C094672.)

Plaintiffs then filed in the trial court a motion to set aside the voluntary dismissal under section 473. Plaintiffs argued the trial court should set aside the dismissal because plaintiffs did not know the dismissal would occur or the impact it would have on their lawsuit, and thus their attorney lacked authority…