A recent Metropolitan News story, “Plaintiff May Dismiss at Last Minute, Blocking Attorney Fee Award,” reports that a plaintiff who senses imminent loss of a case is entitled to dismiss with prejudice before the case is submitted and, by doing so, cuts off the defendant’s right to attorney fees under a contractual provision for such fees being awarded the prevailing party, under an opinion filed yesterday by this district’s Court of Appeal.

Justice Audrey Collins of Div. Four wrote the opinion which reverses a decision by Los Angeles Superior Court Judge Elizabeth Allen White. White denied a plaintiff’s motion to dismiss following a bench trial and before the receipt of written closing arguments, found for the defendant, and awarded $137,000 in attorney fees.  White explained:

“So, when we talk about trying to voluntarily dismiss something in between the time that the evidence is submitted to the court, and the time that closing briefs arrive, I can’t imagine—I can’t imagine under any circumstance that you could just voluntarily dismiss—well, it looks like a losing battle here, so I am going to avoid the attorney’s fees—that’s just sabotage. It is sandbag. It is improper.”  She went on to say:

“We had had a full trial, and you want to come in at the last minute recognizing that, perhaps, your client is in peril and avoid the attorney’s fees? No.”

Plaintiff Achikam Shapira—who had sued his former employer, Lifetech Resources, LLC, claiming that it breached his employment contract—appealed.

In explaining the reversal, Collins pointed to Code of Civil Procedure §581(e) which provides:

“After the actual commencement of trial, the court shall dismiss the complaint...with prejudice, if the plaintiff requests a dismissal....”

She also drew attention to Civil Code section 1717(b)(2) which sets forth:

 “Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.”

The jurist said:

“Section 581(e) provides a right to dismiss a case before the completion of trial, and the court erred by refusing to dismiss the case upon Shapira’s request. As such, there was no prevailing party under section 1717(b)(2), and the attorney fees award was erroneous.”

Collins acknowledged that White’s “position is understandable from a fairness perspective,” but said it is statutorily precluded.

The case is Shapira v. Lifetech Resources, LLC, B283445.