It was CC collection debt case with Plaintiff, FIA services. My answer to summon was general denial of all allegations. I wonder if I could ask judge to dismiss the case with prejudice?
Can I still do anything to change the dismissal from without to with prejudice?
No. The court can only dismiss WITHOUT prejudice when no party appears for trial following 30 days' notice of time and place of trial.
California Code of Civil Procedure section 581, subdivision (a), provides:
"(a) As used in this section:
(1) "Action" means any civil action or special proceeding.
(2) "Complaint" means a complaint and a cross-complaint.
(3) "Court" means the court in which the action is pending.
(4) "Defendant" includes a cross-defendant.
(5) "Plaintiff" includes a cross-complainant.
(6) "Trial." A trial shall be deemed to actually commence at the
beginning of the opening statement or argument of any party or his or
her counsel, or if there is no opening statement, then at the time
of the administering of the oath or affirmation to the first witness,
or the introduction of any evidence.
(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."
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. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.
Technically you could file for a motion to reconsider but the chances of getting a judge to dismiss a case with prejudice in this scenario are close to zero.
This is just my opinion and not a comprehensive answer. You assume the risk because this answer may not apply to your situation depending on the facts.
Without the court reviewing the facts of the case before dismissal for failure to appear, the judge is unable to enter dismissal with prejudice. Below is one of my blog postings on dismissal with prejudice of a credit card lawsuit. You should be happy that the case was dismissed, because sometimes the judge will not dismiss and require a notice be sent to the attorney who failed to appear to give them one more chance to present their case for trial. If no other entity files a lawsuit against you on this debt or if they fail to file within the statute of limitations period, then the debt will be considered discharged by law, once the period of time to file has expired. I have explained this in the second link, below.
Robert Stempler (please see DISCLAIMER below)
NOTICE: The above statements are provided for general information purposes only and are not intended as legal advice or advice of any sort for a specific case or legal matter. If you do not have a signed attorney-client fee agreement with the Consumer Law Office of Robert Stempler, APLC ("the Firm"), then until such written fee agreement is provided and signed by both a prospective client and attorney for a particular case, neither Mr. Stempler nor the Firm will represent you nor will they be your attorney in any matter and you remain responsible for retaining your own attorney and for compliance with any and all deadlines and for any statutes of limitations that may pertain to potential claims. Comments made on a public forum, such as Avvo.com, to not have any confidentiality because others may read them. If you desire a private consultation with Mr. Stempler that is confidential, please go to www.StopCollectionLawsuits.com and submit a free eCase Review.
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