Cal-Vada Aircraft, Inc. v. Superior Court

In this case we decide whether a partial adjudication of issues pursuant to Code of Civil Procedure section 437c constitutes a “trial” under Code of Civil Procedure section 581, subdivision (a), the “voluntary dismissal” statute.

*438 Petitioners Cal-Vada Aircraft, Inc., and Michael A. Brown (Cal-Vada) seek a writ of mandate to compel the trial court to vacate both its order setting aside Cal-Vada’s voluntary dismissal of cross-defendant Bussey without prejudice and its subsequent order dismissing Bussey with prejudice. Prior to trial, Cal-Vada filed a voluntary dismissal pursuant to Code of Civil Procedure section 581, subdivision (a), 1 dismissing its cross-complaint against Bussey only, without prejudice. The trial court, ruling that an earlier partial summary adjudication constituted a commencement of the trial, set the voluntary dismissal aside and, on its own initiative, dismissed Bussey from the action with prejudice. Cal-Vada contends the trial court erred in concluding the order of partial summary adjudication of some, but not all, of the issues, was equivalent to the commencement of trial within the meaning of section 581, subdivision (a), and thus it was error…

Reid & Axelrod, Peter Axelrod, Neil D. Reid, Bronson, Bronson & McKinnon, Paul H. Cyril, Elliot L. Bien and Richard R. Dale for Real Parties in Interest.

OPINION

REGAN, Acting P.J.

In this case we decide whether a partial adjudication of issues pursuant to Code of Civil Procedure section 437c constitutes a "trial" under Code of Civil Procedure section 581, subdivision (a), the "voluntary dismissal" statute.

Petitioners Cal-Vada Aircraft, Inc., and Michael A. Brown (Cal-Vada) seek a writ of mandate to compel the trial court to vacate both its order setting aside Cal-Vada's voluntary dismissal of cross-defendant Bussey without prejudice and its subsequent order dismissing Bussey with prejudice. Prior to trial, Cal-Vada filed a voluntary dismissal pursuant to Code of Civil Procedure section 581, subdivision (a), [1] dismissing its cross-complaint against Bussey only, without prejudice. The trial court, ruling that an earlier partial summary adjudication constituted a commencement of the trial, set the voluntary dismissal aside and, on its own initiative, dismissed Bussey from the action with prejudice. Cal-Vada contends the trial court erred in concluding the order of partial…

do not read the thoughtful majority opinion as reaching the question whether the order of summary adjudication entered in this action would be given effect in any subsequent action filed by plaintiff. With that understanding, I concur in the opinion.