Zapanta

In this case, we address the question of whether the trial court erred in granting a defense motion for summary judgment where the plaintiffs filed a request for dismissal without prejudice one day before their opposition to the motion was due. Plaintiffs and appellants Christy Zapanta, by and through her guardian ad litem, Mary Jean Maloles, and Mary Jean Maloles, individually, maintain that they were entitled to voluntarily dismiss their action before commencement of trial under Code of Civil Procedure section 581, subdivision (b)(1). The trial court disagreed and granted summary judgment in favor of defendants and respondents Universal Care, Inc., and Eddie Quan, M.D. We reverse.

Background

Appellants commenced this medical malpractice action against respondents on May 24, 2001. Appellants claimed that respondents’ delay in diagnosing a pseudomonas bacterial infection resulted in the severe neurological impairment of Zapanta. Zapanta’s mother claimed negligent infliction of emotional distress as a bystander witness.

On March 7, 2002, respondents filed a motion for summary judgment, which included the declaration of an expert witness, Andrew P. Novom, M.D., who…