## Facts

- A minor plaintiff, through a guardian ad litem, sued a health-care entity and a physician for alleged delay in diagnosing a pseudomonas infection, claiming resulting severe neurological impairment.
- The minor’s mother also asserted negligent infliction of emotional distress as a bystander.
- Defendants moved for summary judgment supported by an expert declaration opining defendants met the applicable standard of care.
- With trial set for early May 2002, the summary judgment hearing was set in early April to satisfy statutory timing requirements.
- On March 20, 2002—one day before plaintiffs’ opposition to the summary judgment motion was due—plaintiffs filed a request for dismissal of the entire action without prejudice.
- The clerk entered the dismissal the same day; the summary judgment motion was taken off calendar.
- Defendants sought to restore the summary judgment motion to calendar and moved to strike or set aside the dismissal so the court could rule on the pending motion.
- The trial court struck the dismissal (or treated it as ineffective) and granted summary judgment for defendants.
- Plaintiffs appealed, contending the voluntary dismissal terminated the trial court’s power to decide the merits.

## Issues

1. Whether a plaintiff retains an absolute right under Cal. Civ. Proc. Code § 581(b)(1) to dismiss an action without prejudice before “commencement of trial” when a defense summary judgment motion is pending and close to hearing.
2. Whether a pretrial voluntary dismissal entered by the clerk is effective immediately and divests the trial court of jurisdiction to grant summary judgment thereafter.
3. Whether a summary judgment hearing constitutes “commencement of trial” for purposes of § 581(b)(1).

## Decision

- The Court of Appeal reversed the judgment.
- The court held plaintiffs’ voluntary dismissal without prejudice, filed and entered before commencement of trial, was effective upon filing.
- Because the dismissal was effective, the trial court lacked jurisdiction to strike it for purposes of reaching the merits or to rule on the summary judgment motion.
- The post-dismissal orders adjudicating the merits (including summary judgment) were void for lack of jurisdiction.
- The matter was remanded for further proceedings consistent with recognizing the effectiveness of the dismissal.

## Legal Principles

- Under Cal. Civ. Proc. Code § 581(b)(1), a plaintiff may dismiss an entire action without prejudice as a matter of right before the actual commencement of trial.
- “Commencement of trial” refers to the start of trial on the merits (e.g., opening statements or the taking of evidence), not pretrial proceedings.
- A summary judgment hearing is not a “trial” within the meaning of § 581(b)(1).
- A clerk-entered voluntary dismissal timely filed under § 581(b)(1) is effective immediately and generally terminates the court’s jurisdiction over the merits, leaving only limited authority over collateral matters such as costs or statutorily authorized fees.
- Policy concerns about a plaintiff avoiding an adverse ruling on a well-supported summary judgment motion cannot override the statute’s text; any narrowing of the dismissal right is for the Legislature.

## Conclusion

A plaintiff’s voluntary dismissal without prejudice filed before the actual start of trial remains effective even when a defense summary judgment motion is pending, and that dismissal deprives the trial court of jurisdiction to decide the merits, requiring reversal of a summary judgment entered after the dismissal.


Zapanta v. Universal Care, Inc., 107 Cal. App. 4th 1167, 132 Cal. Rptr. 2d 842 (Ct. App. 2003)