Wilson

*190 Opinión

I. INTRODUCTION

After the attorney for plaintiff failed to appear for a mandatory settlement conference, the trial court set an order to show cause hearing (OSC) in regard to dismissal or other sanctions. The day before that hearing, plaintiff voluntarily dismissed its case without prejudice pursuant to section 581, subdivision (b)(1) of the Code of Civil Procedure. Nevertheless, the court held the hearing, at which it vacated the voluntary dismissal without prejudice and entered, in its stead, a new dismissal, by the court, with prejudice. This appeal is from the order denying plaintiff’s latter motion to vacate the new dismissal with prejudice. ' ' '

We must reverse. By its terms, section 581, subdivision (b)(1) confers on plaintiffs the right to dismiss anytime prior to the “commencement of trial.” As we explain below, a mandatory settlement conference,, or an ensuing OSC regarding dismissal or other sanctions for failure to appear at that mandatory settlement conference, does not in any way implicate the “commencement of trial.” Plaintiff had the statutory right to dismiss its case without prejudice, even on the eve of the hearing.

Also, even if plaintiff did…

I concur in the majority’s conclusion plaintiff properly invoked his statutory right to voluntarily dismiss his lawsuit before the trial court heard the motion to dismiss. Because Code of Civil Procedure section 581, subdivision (b)(1) (section 581), provides that a party may dismiss “at any time before the actual commencement of trial,” plaintiff was entitled to file a dismissal without prejudice, even if the court had posted a tentative ruling announcing its intention to dismiss plaintiff’s case with prejudice.

I write separately to voice my concern that section 581’s clear definition of when trial commences has been obscured by a growing thicket of judicial decisions that rely more on the courts’ own sense of fairness than the Legislature’s express mandate. For example, Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765 [ 57 Cal.Rptr.2d 4 ], relied upon “[l]ogic and fairness” and “the need to reconcile the competing interests” in denying the plaintiff the right to dismiss after the court continued the defendants’ summary judgment hearing to allow discovery. (Id. at p. 771.) Groth Bros. Oldsmobile, Inc. v. Gallagher (2002) 97 Cal.App.4th 60 [ 118 Cal.Rptr.2d 405 ], invoked…

After the attorney for the plaintiff failed to appear for a mandatory settlement conference, the trial court set an order to show cause hearing (OSC) in regard to dismissal or other sanctions. The day before that hearing, the plaintiff voluntarily dismissed its case without prejudice pursuant to section 581, subdivision (b)(1) of the Code of Civil Procedure. Nevertheless, the court held the hearing, at which it vacated the voluntary dismissal without prejudice and entered, in its stead, a new dismissal, by the court, with prejudice. This appeal is from the order denying the plaintiffs latter motion to vacate the new dismissal with prejudice.

We must reverse. By its terms, section 581, subdivision (b)(1) confers on plaintiffs the right to dismiss anytime prior to the "commencement of trial." As we explain below, a mandatory settlement conference, or an ensuing OSC dismissal or other sanctions for failure to appear at that mandatory settlement conference, does not in any way implicate the "commencement of trial." The plaintiff had the statutory right to dismiss its case without prejudice, even on the eve of the hearing.

Also, even if the plaintiff did not have the…