Metropolitan News-Enterprise


Friday, March 2, 2007


Page 1


Where Lawyer Failed to Appear at Settlement Conference:

Right to Dismissal Before Sanctions Hearing Held Absolute


By TINA BAY, Staff Writer


A pending order to show cause regarding dismissal or other sanctions for an attorney’s failure to appear at a mandatory settlement conference does not cut off a plaintiff’s right to file a voluntary dismissal without prejudice, the Fourth District Court of Appeal has ruled.

Div. Three held Wednesday that when plaintiff’s counsel failed to appear at an OSC hearing concerning his non-appearance for a mandatory settlement conference, Orange Superior Court Judge Steven L. Perk erred in vacating the voluntary dismissal the attorney had filed the day before and dismissing the case with prejudice instead.

Under Code of Civil Procedure Sec. 581(b)(1)—which entitles a plaintiff to dismiss its action any time prior to the “commencement of trial”—Perk had no authority to order a dismissal with prejudice because the OSC did not implicate the start of a trial on the merits of the case, the justices said.

Presiding Justice David G. Sills, writing for Div. Three, said an OSC conducted in the wake of a failure to appear at a mandatory settlement conference is “miles away from the ‘commencement of trial’ which is the statutory benchmark for a plaintiff’s right to dismiss.”

Clear Law

According to caselaw interpreting Sec. 581(b)(1), Sills said, the only time a voluntary dismissal is ineffective is when it occurs in the light either of a public and formal indication by the trial court of the legal merits of the case, or of some procedural dereliction by the dismissing plaintiff that made dismissal otherwise inevitable.

The statute and caselaw are clear and “pretty hard to argue with,” the presiding justice wrote.

The case stemmed from Perk’s dismissal of Franklin Capital Corporation’s November 2003 debt collection action against debtor Douglas Wilson.  After repeatedly failing to appear in court, Franklin’s trial lawyer missed a mandatory settlement conference in May 2005, prompting the Perk to issue an OSC regarding dismissal or sanctions.

The day before the scheduled hearing on the OSC, the attorney filed a voluntary dismissal with the court clerk.

Sills noted that whether a plaintiff’s attorney acted in bad faith was irrelevant to the question of dismissal.

“The court may hit the attorney with penalties, perhaps even severe penalties…but, like the devil being allowed to afflict Job but only up to a point, there is one area that is off limits—the client’s cause of action or defense.  The client’s case may not be adversely affected by malfeasance solely attributable to the attorney.”

Client Not Implicated

Moreover, he said, there was no indication in the record that Franklin was implicated in any of its trial attorney’s failures to attend various court hearings.

Sills, in a footnote, said the court chose not to name Franklin’s trial attorney because there were not enough facts to  conclude he had acted in bad faith, and that “[i]t is becoming to the judiciary for judges to recall in such contexts the difficult exigencies of day-to-day law practice.”

Justice Richard D. Fybel concurred in the opinion.

In a separate two-page concurrence, Justice Richard M. Aronson expressed concern that Sec. 581’s definition of when trial commences “has been obscured by a growing thicket of judicial decision that rely more on the courts’ own sense of fairness than the Legislature’s express mandate.”

The issue appears ripe for further guidance from the Supreme Court or the Legislature, he said

 The case is Franklin Capital Corporation, 07 S.O.S. 1111.


Copyright 2007, Metropolitan News Company