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Dismissal Without Prejudice prior to Demurrer hearing. Risk for fees/costs? Can Def fight dismissal hoping to win on Demurrer?

Yorba Linda, CA |
Filed under: Litigation

I am Plaintiff in an action against my lender/servicer, etc for 1) Wrongful Foreclosure, 2) Cancellation of Foreclosure Documents. 3) Preliminary Injunction/TRO to stay sale of the property.

My atty failed to appear @ ex parte re Bond so Injunction/TRO was dissolved by order of Court.

Def filed Demurrer re 1 & 2 above. Naturally, my atty failed to file opposition to Demurrer(seperate subject!). Hearing re Demurrer set for week of 7/18/11.

Meanwhile, I've successfully negotiated a mod of my loan directly with the bank. Accordingly, I don't see the need to pursue action or defend Demurrer and would like dismiss W/out Prejudice, maintaining my options in case mod doesn't work out.

Am I at risk for fees/costs upon dismissal? Does Def have any say re my dismissal w/out Prej?

Taking the scenario one step further.... Since the foreclosure proceeding at hand will be cancelled by statute (coming up on 1 yr from NOD), or, upon my first payment of the mod (due early August), if I were to dismiss with prejudice either now or after the 1 yr statute has passed, would Def be able to make a motion for costs? Also, if I were to dismiss without prejudice now, and change that to with prejudice after the 1 yr statute on the NOD passes, would Def be able to recover costs? Lastly, since this foreclosure proceeding will have been cancelled, will I have the option in the future (eg: a year from now) to refile a new Wrongful Foreclosure proceeding if for some reason it becomes necessary?

Attorney Answers 2

  1. Your attorney can file a Request for Dismissal Without Prejudice. Although the defendant(s) might file a Memorandum of Costs to recover costs and possibily a Motion for Attorney's Fees, the chance of the defendants seeking a Judgment of Dismissal in order to collect the costs is extremely small. The defendants do not have a say in the dismissal without prejudice.

    See California Code of Civil Procedure section 581.

  2. The case is yours and you can dismiss it at any times. There is a risk of the defendant filing for costs and often we request a waiver of costs in exchange for the dismissal. Defendants will do this because they like to know there is not more expense on the matter. The statute you need is attached in full but, in pertinent part, is:

    (b) An action may be dismissed in any of the following instances:
    (1) With or without prejudice, upon written request of the plaintiff to the clerk, filed with papers in the case, or by oral or written request to the court at any time before the actual
    commencement of trial, upon payment of the costs, if any.
    (2) With or without prejudice, by any party upon the written consent of all other parties.
    (3) By the court, without prejudice, when no party appears for trial following 30 days' notice of time and place of trial.
    (4) By the court, without prejudice, when dismissal is made pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110).
    (5) By the court, without prejudice, when either party fails to appear on the trial and the other party appears and asks for dismissal.
    (c) 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.

    If you liked this answer, click on the thumbs up or vote it best answer! Thanks. Eliz. C. A. Johnson Post Office Box 8 Danville, California 94526-0008 Legal disclaimer: I do not practice law in any state but California. As such, any responses to posted inquiries, such as the one above, are limited to a general understanding of law in California and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as legal advice can only be provided in circumstances in which the attorney is able to ask questions of the person seeking legal advice and to thus gather appropriate information.

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