Thomson

This case presents an issue of first impression: whether a plaintiff can obtain a voluntary dismissal of an action after the defendant has obtained a ruling dismissing the same action involuntarily, but before the order for involuntary dismissal has been filed. The trial court found that in such circumstances the plaintiff had no right to a voluntary dismissal. We agree.

On July 11, 1986, plaintiffs M & R Properties, Rex Nordson and Maria Nordson filed a complaint against defendants estate of Dr. William Dubilier, Edward N. Thomson and Joseph Bachert. The complaint was brought, in part, on the grounds of breach of contract. The contract contained a clause entitling the prevailing party to its attorney fees. When plaintiffs did not bring the matter to trial within five years, defendants moved for mandatory dismissal of the action, a procedure which would be a determination on the merits entitling defendants to their attorney fees. (Code Civ. Proc., §§ 583.310, 583.360; Civ. Code, § 1717; Elms v. Builders Disbursements, Inc. (1991) 232 Cal.App.3d 671, 675 [ 283 Cal.Rptr. 515 ].) The motion was noticed for September 12, 1991, at 10:30 a.m. The court issued a tentative…