Gray

—In this case we hold that a plaintiff’s right to dismiss his complaint “at any time before the actual commencement of trial” (Code Civ. Proc., § 581, subd. (b)(1)) is cut off by the commencement of evidentiary proceedings before a referee appointed in a partition action.

Petitioner Lendal Galen Gray is a defendant in an action for partition of real property filed by real party in interest, plaintiff Dennis R. Hunter. After an evidentiary hearing before a referee, and the referee’s finding and recommendation in favor of petitioner, real party voluntarily dismissed his partition complaint without prejudice. (§581.) Petitioner moved to vacate the dismissal on the ground that real party was barred from a voluntary dismissal because trial—the proceedings before the referee—had actually commenced. (§ 581, subd. (c).) Respondent superior court denied the motion to vacate on the primary ground that the proceeding before the referee was not the commencement of trial under section 581, subdivision (c), because the referee’s determination is merely advisory to the court. Petitioner seeks a prerogative writ to set aside the order denying the motion to vacate. We issued an order to…