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If we file for a dismissal in an unlimited civil case, can the defendants go after us for their legal costs? we are in pro per.

San Francisco, CA |

what's the difference between with prejudice and without prejudice?

Attorney Answers 4


  1. Costs could be awarded following a voluntary dismissal if the other party files a Memorandum of Costs along with a proposed Judgment of Dismissal.

    A lawsuit in California can either be dismissed either “with prejudice" or “without prejudice”.

    In general, when there is a voluntary dismissal of an entire action, the action is no longer pending and the court's jurisdiction over the parties and the subject matter terminates. (In re Casa de Valley View Owner's Assn. (1985) 167 Cal.App.3d 1182, 1192.) This includes a dismissal pursuant to a settlement agreement. (Wackeen v. Malis (2002) 97 Cal.App.4th 429, 437.)

    Absent a pending lawsuit, a court cannot issue judgments or orders. (Hagan Engineering v. Mills (2003)115 Cal.App.4th 1004, 1007.) While the case is pending, the court can expressly reserve jurisdiction to enforce a settlement agreement after the entry of dismissal (Wackeen v. Malis, supra, at p. 437), but the parties cannot confer such jurisdiction simply by including language in the settlement agreement. The parties must make a specific request to the Court that it retain jurisdiction. Without such request and consent of the court, language in the settlement agreement is a nullity. (Hagan Engineering v. Mills, supra, at p. 1008.)

    Absent an applicable exception, a plaintiff’s right to dismiss anytime before trial is absolute. The clerk of the court has no discretion to refuse to enter the dismissal; and the court has no power to set it aside against plaintiff's will. (O’Dell v. Freightliner Corp. (1992) 10 Cal.App.4th 645, 659; Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 190; Henderson Receivables Origination LLC v. Red Tomahawk (2009) 172 Cal.App.4th 290, 302.) There are exceptions such as where there is a cross-complaint, complaint in intervention pending, dispositive ruling pending.

    When a request for dismissal with prejudice is filed, the term “with prejudice” means the plaintiff’s right of action is terminated and may not be revived. (Roybal v. University Ford (1989) 207 Cal.App.3d 1080, 1086-1087; Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813, 820-821.) A retraxit acts as a bar to any further action on the same cause. (Gagnon Co., Inc. v. Nevada Desert Inn (1955) 45 Cal.2d 448, 455.) It determines the issues in the case and precludes the dismissing party from litigating those matters a second time. It is well-settled that a retraxit is equivalent to a judgment on the merits, which bars a subsequent action for the same cause.

    As the Court of Appeal explained in Torrey Pines Bank , “[A] dismissal with prejudice [is] a retraxit constituting a decision on the merits invoking the principles of res judicata. [Citations.]” More specifically, it has been held: “[A] court will apply principles of res judicata to resolve precisely what causes of action or issues are barred as a result of the retraxit.... [R]es judicata principles are applied to ascertain the scope and effect of the retraxit and thus the principles operate together.” (Accord, Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Co. of America (2005)133 Cal.App.4th 1319, 1331.)

    Whether a plaintiff’s voluntary dismissal of the entire action will bar a subsequent proceeding by a defendant bars the present proceeding must be analyzed under res judicata principles. Under this doctrine, all claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date. Res judicata precludes piecemeal litigation by splitting a single cause of action or relitigation of the same cause of action on a different legal theory of for different relief.

    Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.


  2. If you dismiss the case, the other side is entitled to request that the court award costs by filing a Memorandum of Costs. If you are thinking about dismissing your case and you want to know that the other side will not pursue costs, call them and ask if they will waive costs if you dismiss the case. Dismissal without prejudice means that you can refile the case. Be mindful that any new filing must be within the statute of limitations.

    Dismissal with prejudice means that you are officially done; no ability to refile.

    You may want to consult with an attorney before you make any filing with the court.


  3. While I cannot give you legal advice in this forum, if you voluntarily dismiss the Defendants can pursue costs, such as filing fees, motions fees, deposition costs, etc. However, if they want attorney's fees, they are going to have to file a motion for fees and cite a statute or contractual provision that allows for the recovery of attorney's fees. Absent a few unique situations, an award of attorney's fees is not automatic. Also, if the fees are based on a contract, a voluntary dismissal by you generally bars an award of contractual attorney's fees. See Civil Code Section 1717(b)(2).

    THIS RESPONSE IS INTENDED TO CONVEY GENERAL INFORMATION ONLY. IT SHOULD NOT BE RELIED UPON OR TAKEN AS LEGAL ADVICE. FURTHER, THIS RESPONSE IS NOT INTENDED TO AND DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.


  4. There are legal costs and there are legal costs. Sometimes legal costs include attorney fees. Sometimes, in fact many times, the right to costs depends on the status and nature of the proceedings. You have asked a general question that cannot be answered without reference to specific facts which have been omitted. If you really want to know the "right" answer to your question, consult an attorney who has reviewed all the necessary facts of your case with you.

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