Metropolitan News-Enterprise


Friday, November 17, 2023


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Court of Appeal:

Dispositive Tentatives Marked Start of Trial; Too Late for Dismissal Without Prejudice


By a MetNews Staff Writer


A Los Angeles Superior Court judge erred in dismissing an action without prejudice, as requested by the plaintiff, after making tentative rulings which, if adopted, would have resulted in a judgment on the merits in favor of the defendants, Div. Four of the Court of Appeal for this district held yesterday.

Defendants Norik Barseghian and Rita Gharibians were listed on a lease as guarantors of the performance by tenant Ideal Kitchen Supply, Inc. However, they never signed the guaranty.

After Ideal was evicted, Ricardo Canales, as trustee of the Canales Family Trust, added Barseghian and Gharibians as defendants, seeking damages arising chiefly from Ideal’s failure to pay rent and to maintain the property. On the day set for trial—April 18, 2022—Judge Ralph C. Hofer tentatively granted a motion in limine excluding evidence of the guaranty and said he was inclined to grant judgment on the pleadings, sua sponte.

 The following day, Canales filed a request for a dismissal without prejudice, which was entered the day after that. Barseghian and Gharibians purported to appeal.

Non-Appealable Order

A dismissal without leave to amend is not an appealable order, Justice Helen Zukin noted, but said that Div. Four would treat the appeal as a petition for a writ of mandate, which was granted, in an unpublished opinion.

At issue was whether a dismissal without prejudice was proper under Code of Civil Procedure §581. Subd. (c) provides that “[a] plaintiff may dismiss his or her complaint, or any cause of action asserted in it, in its entirety, or as to any defendant or defendants, with or without prejudice prior to the actual commencement of trial. The applicability,” while subd. (e) says:

“After the actual commencement of trial, the court shall dismiss the complaint, or any causes of action asserted in it, in its entirety or as to any defendants, with prejudice, if the plaintiff requests a dismissal, unless all affected parties to the trial consent to dismissal without prejudice or by order of the court dismissing the same without prejudice on a showing of good cause.”

Zukin wrote: “The commencement of trial may take place even before the trial court makes an actual ruling on a pending dispositive motion when there ‘was some objective indicia, e.g., by way of publicly announced tentative ruling . . . , that the plaintiff’s case was inherently defective on the merits.’ ”

She went on to say:

“The court’s tentative ruling (specifically, granting its own motion for judgment on the pleadings), if adopted, adjudicated the action against  plaintiff in favor of defendants on the merits. Plaintiff cannot argue  otherwise. Moreover, allowing plaintiff to dismiss without prejudice after  learning of the adverse tentative ruling is contrary to the policy of section 581….”

‘Good Cause’

The jurist declared:

“Because we conclude trial had already commenced at the time plaintiff requested a dismissal, section 581, subdivision (e) controls….[T]he trial court had no ability to accept plaintiff’s request for dismissal without prejudice, absent a showing of good cause.”

Hofer had specified that he was “not exercising its discretion” as “there was no showing of good cause.”

The opinion directs the Superior Court “to set aside the dismissal without prejudice and allow plaintiff, if requested, to dismiss the complaint against defendants with prejudice…or proceed to trial.”

Barseghian and Gharibians appealed Hofer’s order denying them an award of attorney fees. Zukin said:

“[T]he order denying defendants’ motion for attorney fees is reversed without prejudice to either party pursuing them in the trial court following resolution of the case.”

Zukin’s opinion came in Canales v. Superior Court (Barseghian), B321796.

Ara Joe Keropian of AJK Law Firm in Sherman Oaks represented Barseghian and Gharibians and Lane M. Nussbaum, Richard J. Uss and Wayne M. Abb of the Agoura Hills firm of Nussbaum APC acted for Canales.


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