D & J, INC. v. Ferro Corp.

Is a dismissal of an action at the request of the plaintiff after the commencement of trial “voluntary,” thus precluding an award of attorneys fees under Civil Code section 1717? Yes.

I

D & J, Inc. sued Ferro Corporation for breach of contract. During an in limine examination of the first witness, plaintiff moved to dismiss the action with prejudice. (Former Code Civ. Proc., § 581, subd. 5, now Code Civ. Proc., § 581, subd. (e).) The motion was granted, and defendant submitted a memorandum of costs and disbursements and sought to be declared the prevailing party in order to receive attorneys fees under Civil Code section 1717. Relying on subdivision (b)(2), the trial court determined there was no prevailing party. It provides, “Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.”

Ferro claims the dismissal was not “voluntary” within the meaning of Civil Code section 1717 because it was entered after commencement of trial and was with prejudice. These factors, retort D & J, are of no consequence: Because the plaintiff initiated the request for dismissal, and…