Romadka

I. Introduction

Plaintiffs appeal from (1) an order of the Santa Clara Superior Court denying their motion to vacate dismissal with prejudice of their action against defendant, and (2) a subsequent judgment of the Santa Cruz Superior Court in favor of defendant based on the dismissal. Plaintiffs contend that their attorney’s dismissal of the action with prejudice was without their authority and therefore void. For the reasons explained below we reverse the Santa Clara County order. Because the ensuing Santa Cruz judgment was based on the res judicata effect of the Santa Clara dismissal, it also is reversed.

II. Facts

On July 20, 1984, plaintiffs filed a complaint in Santa Clara County against defendant and his brother to recover on several promissory notes. Plaintiffs obtained a default judgment against defendant’s brother. Plaintiffs, however, failed to serve defendant within three years and their action fell subject to mandatory dismissal without prejudice under Code of Civil Procedure section 583.250.

On December 18, 1987, still within the limitations period, plaintiffs refiled the action in Santa Cruz County. On June 30, 1988, plaintiffs’ attorney filed a request…