Filed 6/29/16 Younessi v. Killackey CA2/5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


RAMIN R. YOUNESSI et al.,                                            B260308

         Plaintiffs and Appellants,                                  (Los Angeles County
                                                                     Super. Ct. No. BC494677)
         v.

MICHAEL A. KILLACKEY et al.,

         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of the County of Los Angeles,
Elizabeth Allen White, Judge. Affirmed.
         Law Offices of Ramin R. Younessi, Ramin R. Younessi, Gabriel J. Pimentel for
Plaintiffs and Appellants.
         Killackey Law Offices, Michael A. Killackey, Albert R. Killackey for Defendants
and Respondents.
                                    INTRODUCTION


       Plaintiffs and appellants Ramin R. Younessi (Younessi) and Law Offices of
Ramin R. Younessi, a professional law corporation (LORY-Corp.), appeal from a
judgment entered after the trial court granted a motion for judgment on the pleadings
filed by defendants and respondents Michael A. Killackey (Killackey) and Killackey Law
Offices, LLP (KLO-LLP). Plaintiffs contend that the trial court erred in acting upon four
ex parte applications in the course of the case: granting defendants’ ex parte application
for a trial continuance; denying plaintiffs’ ex parte application for a trial continuance or
stay of the proceedings; denying plaintiffs’ request for 30 days leave to amend the
complaint, rather than 5 days, after the trial court granted defendants’ first motion for
judgment on the pleadings; and vacating the plaintiffs’ voluntary dismissal of the
conversion cause of action that was filed the day before the judgment. We affirm the
judgment.


                  FACTUAL AND PROCEDURAL BACKGROUND


       This case concerns attorney fees for the representation of Veronica Munoz, who,
in November 2008, was injured in an automobile accident involving James Sheridan.
       In April 2010, Munoz retained LORY-Corp. to represent her as counsel in
connection with the November 2008 accident. Munoz agreed to pay LORY-Corp. a
contingency fee of 33 1/3 percent of the gross recovery obtained without a lawsuit or 40
percent of the gross recovery obtained if a lawsuit was filed.
       In April 2010, LORY-Corp. filed an action on behalf of Munoz and her passenger
against Sheridan (Sheridan action). Younessi’s only involvement in Munoz’s
representation was that on behalf of LORY-Corp.
       In June 2011, Munoz terminated LORY-Corp. as her attorney, and, according to
defendants, on the same day retained KLO-LLP to represent her in the Sheridan action.
KLO-LLP filed a substitution of attorney and became Munoz’s counsel of record in the

                                              2
Sheridan action. In December 2011 the Sheridan action settled, and on April 23, 2012,
KLO-LLP received settlement funds in the Sheridan action and deposited them into its
client trust account.
       On October 29, 2012, Younessi, through his counsel, LORY-Corp., filed the
original complaint in this case, asserting causes of action for compensation for legal
services rendered and breach of lien.1 The record contains no indication that Younessi or
LORY-Corp. has ever filed a notice of lien.
       On July 10, 2013, Younessi, through his counsel, LORY-Corp., filed a second
amended complaint (SAC) asserting causes of action for compensation for legal services
rendered, breach of lien, and conversion. Because of the settlement in the Sheridan
action, Younessi claimed that he was entitled to $640,000 under the terms of LORY-
Corp.’s retainer agreement, based on the reasonable value of his services rendered to
Munoz. Younessi also alleged that Killackey and KLO-Corp. breached Younessi’s lien
“arising out of his representation of” Munoz, and converted Younessi’s funds by
withholding $640,000 from him.
       On January 10, 2014, defendants filed an ex parte application to continue for at
least six months the trial set for March 7, 2014. The trial court granted defendants’ ex
parte application.2
       On June 11, 2014, defendants filed a motion for summary judgment or summary
adjudication (MSJ) against Younessi contending that, inter alia, Younessi lacked
standing. In their reply brief, defendants argued that Younessi failed to comply with
Mojtahedi v. Vargas (2014) 228 Cal.App.4th 974, 976, 977-979 (Mojtahedi), which
requires that a prior attorney suing a successor attorney for attorney fees must first sue
the client in a separate action and establish the existence, amount, and enforceability of

1      The original complaint was against Killackey and Killackey Law Offices, a
California corporation (KLO-Corp.) KLO-LLP was substituted as a defendant in place of
KLO-Corp. in the Second Amended Complaint.

2      The record does not contain the trial court’s order or a reporter’s transcript of the
hearing, but it appears undisputed that the court granted the application.

                                              3
the attorney fees. Defendants also argued that all of Younessi’s claims are based on
quantum meruit and the applicable two-year statute of limitations had expired.
       On June 23, 2014, Younessi substituted himself and another attorney as
Younessi’s counsel instead of LORY-Corp., which had been a suspended and
unregistered corporation throughout the lawsuit.3 On August 1, 2014, with LORY-Corp.
returned to good standing, Younessi moved to amend the operative complaint to add
LORY-Corp. as a plaintiff, and sought to add a new cause of action against defendants
for money had and received.
       Plaintiffs then initiated a separate lawsuit that they argue was filed “in order to
satisfy” Mojtahedi, supra, 228 Cal.App.4th at page 974. Specifically, on August 18,
2014, plaintiffs filed a declaratory relief action against Munoz (Munoz declaratory relief
action), seeking a determination of their right to all or a portion of the settlement
proceeds in the Sheridan action; of their lien against the settlement proceeds; of “the
reasonable value of services rendered [to Munoz] by” Younessi and LORY-Corp.; and of
the existence, amount, and enforceability of their lien on the settlement proceeds.
       At the August 25, 2014, hearing on defendants’ MSJ and Younessi’s motion for
leave to amend the complaint, the trial court stated that because the Munoz declaratory
relief action was not before it (and had not been “related” to the instant action), the trial
court could not control the time when Younessi and LORY-Corp. obtained a declaratory
judgment, if any, against Munoz, and it could not make a determination about whether
the applicable statute of limitations bars the Munoz declaratory relief action. The trial
court suggested that Younessi “jump through the procedural hoops to get [the Munoz
declaratory relief action] before [it]” so there could “be a determination on the statute of
limitations.” The trial court also noted there was no motion to stay pending before it.

3
        In 2002, LORY-Corp. was suspended by the Secretary of State and Franchise Tax
Board. On December 31, 2009, the California State Bar revoked LORY-Corp.’s law
corporation registration. Between June 30, 2014 and July 29, 2014, LORY-Corp. was
relieved of suspension by the Franchise Tax Board, the California State Bar certified that
LORY-Corp. was a registered law corporation, and the Secretary of State issued a
certificate of status stating that LORY-Corp. is in good standing.

                                               4
       The trial court ruled that “all of [Younessi’s] causes of actions [are based on his]
hold[ing] an attorney’s lien for legal services rendered to his client in the [Sheridan]
action. Without a lien, [Younessi] does not have any ownership interest or claim to the
right of possession in the money being held by [d]efendants.” The trial court stated that
the first cause of action for compensation for legal services rendered is a quantum meruit
claim and such a claim may be viable against Munoz, but not against defendants; and the
second cause of action for breach of lien and the third cause of action for conversion
necessarily depend upon the existence of the alleged attorney’s lien, but Younessi failed
to allege in his SAC that he “ha[d] obtained” a declaratory judgment against Munoz.
       The trial court exercised its discretion to treat defendants’ MSJ as a motion for
judgment on the pleadings (first MJOP); granted the motion; granted Younessi five court
days to file an amended complaint; and granted Younessi leave to add LORY-Corp. as a
plaintiff and to add a new cause of action for money had and received. As to the filing of
an amended complaint, the trial court stated, “[I]f [Younessi] does not plead in this third
amended complaint that he has first established the existence, amount, and enforceability
of his lien on the settlement money by way of a declaratory relief action against his client
Munoz, then Defendants may bring a dispositive motion which the Court would likely
grant without leave to amend.”
       On September 2, 2014, plaintiffs filed a third amended complaint (TAC), asserting
causes of action for compensation for legal services rendered, breach of lien, conversion,
and money had and received. Plaintiffs alleged that they filed on August 18, 2014, a
declaratory action against Munoz and therefore “are in the process of” establishing the
existence, amount, and enforceability of their lien on the settlement proceeds.
       A jury trial was scheduled for September 29, 2014. On September 4, 2014,
defendants filed an ex parte application seeking judgment on the pleadings based on the
TAC, or alternatively, an order specially setting a hearing on a second MJOP because
there was insufficient time to file a noticed motion. Defendants filed their second MJOP
concurrently with the ex parte application. On the same day, even though they had filed
the TAC, plaintiffs filed an ex parte application for an order extending the deadline to file

                                              5
the TAC to 30 days from the August 25, 2014, hearing (i.e., September 24, 2014), staying
the action, and continuing the trial date “so as to allow Plaintiff[s] to establish the
existence of his lien [against Munoz in the Munoz declaratory relief action].” Plaintiffs
stated, “If Plaintiff[s are] not permitted to adjudicate [their] declaratory relief action prior
to the trial in this case, this action will be subject to dismissal for failure to establish
Plaintiff[s’] lien . . . .”
        At the September 4, 2014, hearing on the ex parte applications, plaintiffs’ counsel
stated that he had not yet filed a notice of related case concerning the Munoz declaratory
relief action, but would do so “if the [trial] court is going to allow this action to proceed.”
Even though plaintiffs had filed the TAC already, plaintiffs’ counsel “wanted the 30 days
[to filed an amended complaint] . . . to attempt to obtain a stipulated judgment or some
other resolution in this declaratory action that could potentially allow us to have a defense
in opposition to this motion for judgment on the pleadings. [¶] . . . [¶] I could
conceivably next week come in with a judgment, declaratory judgment signed by the
judge stating that I have my lien . . . .” The trial court granted defendants’ ex parte
application for an order shortening time to hear their second motion for judgment on the
pleadings (second MJOP), and set the hearing for September 24, 2014, to allow 30 days
to pass after the August 25, 2014, hearing. The trial court denied plaintiffs’ ex parte
application, stating that it was “not going to keep this as a moving target” and that
because plaintiffs filed the TAC, their request for additional time to file the amended
complaint was moot.
        Plaintiffs filed an opposition and a supplemental opposition to the second MJOP.
Meanwhile, on September 12, 2014, plaintiffs filed a request for dismissal without
prejudice as to the cause of action for conversion only; the request for dismissal was
ambiguous because it did not identify which of the two plaintiffs was dismissing the
cause of action. The record does not indicate that this request was acted upon. On
September 23, 2014, one day before the hearing on defendants’ second MJOP, both
plaintiffs filed a request for dismissal without prejudice as to their conversion cause of
action. Dismissal was entered by a clerk on the same date.

                                                6
       On September 24, 2014, defendants’ second MJOP was heard, as was defendants’
ex parte application, filed that day, to set aside the dismissal of the conversion cause of
action (ex parte application to set aside dismissal). As to the second MJOP, the trial court
stated, “The court had construed the summary judgment filed by Michael Killackey and
The Killackey Law Offices as a Motion for Judgment on the Pleading[s] with leave to
amend. The conditions for leave to amend were very, very narrow; and the court
indicated that the court would strike anything that was not within that narrow window for
purposes of amendment. [¶] The amendment specifically related to whether or not the
lien was based upon an agreed upon lien, whether or not there had been a determination
as to the validity of the lien prior to the filing of the litigation.” The trial court took the
matters under submission.
       On September 29, 2014, the trial court granted defendants’ second MJOP without
leave to amend because the TAC did not allege that plaintiffs had obtained a judgment
against Munoz establishing the existence, amount, and enforceability of the lien on the
settlement proceeds. The trial court also granted defendants’ ex parte application to set
aside dismissal, stating that plaintiffs could not avoid the trial court’s August 25, 2014,
ruling regarding the deficiency of the conversion cause of action by simply dismissing it
without prejudice.
       Judgment was entered in favor of defendants. Plaintiffs filed a timely notice of
appeal.


                                        DISCUSSION


       A.      Ex Parte Applications to Continue
       Plaintiffs contend the trial court abused its discretion in granting defendants’ ex
parte application to continue the trial set for March 7, 2014, and, later, denying plaintiffs’
ex parte application to continue the hearing on defendants’ second MJOP or stay the
proceedings pending the resolution of the Munoz declaratory relief action. We disagree.



                                                7
              1.     Standard of Review
       We review a trial court’s ruling on a motion for a stay under the abuse of
discretion standard. (Bains v. Moores (2009) 172 Cal.App.4th 445, 480.) Similarly, a
trial court’s ruling whether a particular hearing or trial should be postponed is reviewed
for abuse of discretion. (Dailey v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974,
1004.) “‘The policy favoring a full and fair hearing calls for a more careful appellate
review of the exercise of discretion in denying a continuance [citation], but it is usually
upheld.’ [Citation.] However, it is much more difficult to demonstrate an abuse of
discretion when a continuance is granted. “‘“On an appeal from the judgment (the order
itself being nonappealable) it is practically impossible to show reversible error in the
granting of a continuance.”’” [Citations.]” (Bussard v. Department of Motor Vehicles
(2008) 164 Cal.App.4th 858, 863, fn. 1.)
       “An abuse of discretion occurs ‘where, considering all the relevant circumstances,
the court has exceeded the bounds of reason or it can fairly be said that no judge would
reasonably make the same order under the same circumstances.’ [Citation.]” (In re
Marriage of Olson (1993) 14 Cal.App.4th 1, 7.) “[A] trial court’s ruling will not be
disturbed, and reversal of the judgment is not required, unless the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice. [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067,
1113, overruled on another point by People v. Rundle (2008) 43 Cal.4th 76, 151.)


              2.     Analysis


                     a)     Defendants’ Ex Parte Application to Continue Trial
       Plaintiffs have not established the trial court abused its discretion in granting
defendants’ January 10, 2014, ex parte application to continue the trial. Plaintiffs
contend the trial court erred because defendants’ ex parte application did not include a
declaration of irreparable harm or immediate danger they would have suffered if their
request for a trial continuance was not heard ex parte, as required by California Rules of

                                              8
Court, rule 3.1202. Plaintiffs have forfeited this contention. There is nothing in the
record to establish plaintiffs objected on that basis during the trial court proceedings. “A
party forfeits the right to claim error as grounds for reversal on appeal when he or she
fails to raise the objection in the trial court. [Citations.]” (In re Dakota H. (2005) 132
Cal.App.4th 212, 221-222; In re Levi U. (2000) 78 Cal.App.4th 191, 201; In re Seaton
(2004) 34 Cal.4th 193, 198.)
       In any event, the declaration attached to the application did provide a factual basis
for why relief was needed immediately given the March 12, 2014 trial date: the last day
to serve written discovery was the following business day, January 13, 2014; the deadline
to exchange experts was January 21, 2014; the deadline to respond to the complaint-in-
intervention was January 24, 2014; and the discovery cut-off date was February 10, 2014.
Thus, the declaration stated, “the pleadings will not be at issue until well after the
discovery cut-off date and possibly the scheduled trial date.”
       Plaintiffs also contend that the trial court erred in granting the ex parte application
because it was not served on plaintiffs “at the first reasonable opportunity,” as required
by California Rules of Court, rule 3.1206, and abused its discretion in denying plaintiffs’
request they be provided with time to review the ex parte application and file an
opposition addressing defendants’ arguments. In plaintiffs’ opposition to defendants’ ex
parte application, they argue they were not served with the ex parte application as of the
time plaintiff’s opposition was executed, but was advised the ex parte application had not
yet been completed. Plaintiffs state defendants did not serve their ex parte application
until the morning of the hearing. Plaintiffs however have not established when the ex
parte application was completed, or that it was not served on plaintiffs “at the first
reasonable opportunity.” Plaintiffs have not established the trial court abused its
discretion in granting defendants’ ex parte application, or denying plaintiffs’ request they
be permitted to file an opposition addressing the specific arguments contained in the
application.




                                              9
                      b)     Plaintiffs’ Ex Parte Application to Continue Trial or Stay the
                             Proceedings
       The trial court did not abuse its discretion in denying plaintiffs’ request for a
continuance of the trial or stay of the proceedings. Plaintiffs argue they filed the Munoz
declaratory relief action on August 18, 2014, “in order to satisfy” Mojtahedi, supra, 228
Cal.App.4th at pages 974, 976, 977-979, as under that decision a prior attorney suing a
successor attorney for attorney fees must first sue the client in a separate action and
establish the existence, amount, and enforceability of the attorney fees. They sought ex
parte relief to continue the trial or stay the proceedings until there was a final resolution
of the Munoz declaratory relief action. Plaintiffs contend Mojtahedi, published on
August 8, 2014, “caused a significant and unanticipated change in the status of the case,
which prevented [plaintiffs] from being ready for trial.” We disagree.
       Mojtahedi, supra, 228 Cal.App.4th 974 did not create a “significant and
unanticipated change” in the law regarding plaintiffs’ right to recover a portion of the
settlement money in the Sheridan action. Mojtahedi did not even purport to establish
new law but simply relied upon existing law requiring an attorney to first bring a suit
against the client before suing a successor attorney, stating that this law was “well
established.” (Mojtahedi, supra, 228 Cal.App.4th at p. 977.) Mojtahedi stated, “It is well
established that ‘“[a]fter the client obtains a judgment [or settlement], the attorney must
bring a separate, independent action against the client to establish the existence of the
lien, to determine the amount of the lien, and to enforce it.”’ (Brown v. Superior Court
(2004) 116 Cal.App.4th 320, 328 [], quoting Carroll [v. Interstate Brands Corp. (2002)]
99 Cal.App.4th [1168,] 1173; accord, Valenta [v. Regents of University of California
(1991)] 231 Cal.App.3d [1465,] 1470 [(Valenta)]; Hansen [v. Jacobsen (1986)] 186
Cal.App.3d [350,] 356 [(Hansen)]; Bandy [v. Mt. Diablo Unified Sch. Dist. (1976)] 56
Cal.App.3d [230,] 234 [(Bandy)]; Hendricks v. Superior Court (1961) 197 Cal.App.2d
586, 589 [].)” (Mojtahedi, supra, 228 Cal.App.4th at pp. 977-978.) “[T]he central
principle conveyed by Valenta, Hansen, and Bandy [is] the attorney’s lien is only
enforceable after the attorney adjudicates the value and validity of the lien in a separate

                                              10
action against his client.” (Id. at p. 978.) “Without an enforceable lien, [the former
attorney] cannot prove that he has a right to a portion of the settlement money.” (Id. at p.
977.)
        It had long been held that an attorney employed under a continent fee contract and
discharged prior to the occurrence of the contingency is limited to quantum meruit
recovery for the reasonable value of the services rendered up to the time of discharge.
(See, Joseph E. Di Loreto, Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 156; Hansen, supra,
186 Cal.App.3d at p. 356; Fracasse v. Brent (1972) 6 Cal.3d 784, 793.) Although there
is a basis for a former attorney’s quantum meruit claim against a former client for
attorney fees, there is no basis for such a claim against the subsequent attorney. (Olsen v.
Harbison (2010) 191 Cal.App.4th 325, 332.)
        In Mojtahedi, the plaintiff simply tried to distinguish his case from the established
case law in ways that the Court of Appeal viewed as “insignficant” and that “fail[ed] to
alter the applicability of the central principle conveyed” in the case law that the attorney
must first “adjudicate[] the value and validity of the lien in a separate action against his
client” before enforcing it against another attorney. (Mojtahedi, supra, 228 Cal.App.4th
at p. 978.) The court observed, for instance, that it was settled that it was irrelevant
whether the attorney asserted that there was no actual dispute between him and his client
about the amount owed. (Id. at p. 979.)
        Plaintiffs provided the legal services to Munoz, not to defendants. Plaintiffs
therefore must litigate with Munoz the existence, amount, and enforceability of the
attorney fees. Both in the trial court and in their briefs, plaintiffs did not even attempt to
distinguish the applicability of the “central principle” that they must first establish the
lien, as the plaintiff attempted to in Mojtahedi. They claimed that the central principle
was a change in the law. There is no support for this claim in Mojtahedi, which
recognizes that law as long settled.
        Plaintiffs did not even file the Munoz declaratory relief action until almost two
years after Younessi filed his original complaint against defendants seeking attorney fees
purportedly based on his representing Munoz. The trial court did not abuse its discretion

                                              11
in denying plaintiffs’ ex parte request for a continuance of the trial or a stay of the
proceedings until there was a final resolution of that declaratory relief action, which
under existing law, plaintiffs should have filed several years prior.


       B.     30 Days Leave to Amend Complaint
       Plaintiffs contend the trial court erred by failing to permit plaintiffs’ 30 days leave
to amend complaint after the trial court granted defendants’ first MJOP. We disagree.
       On June 11, 2014, defendants filed a MSJ against Younessi arguing, inter alia, that
a prior attorney suing a successor attorney for attorney fees must sue the client and
establish the existence, amount, and enforceability of the attorney fees. At the August 25,
2014, hearing on the motion, the trial court exercised its discretion to treat defendants’
MSJ as a MJOP; granted the motion; and granted Younessi five court days to file a third
amended complaint.
       Younessi (the only plaintiff at the time) did not object at the August 25, 2014,
hearing to the five-day period for amendment. Instead, plaintiffs timely filed the TAC on
September 2, 2014.
       When defendants filed a second motion for judgment on the pleadings and sought
an expedited hearing on it ex parte on September 4, 2014, plaintiffs for the first time
sought 30 days leave to file an amended complaint, instead of five days. Plaintiffs
argued, as they do on appeal, that under Civil Procedure Code section 438, subdivision
(h)(2), when a MJOP is granted with leave to amend the complaint, the trial court “shall”
grant 30 days leave to amend the complaint.
       The trial court did not err in denying plaintiffs’ ex parte application for 30 days
leave to amend. It was only after plaintiffs filed their TAC that they filed an ex parte
application seeking additional time to file the amended complaint. Therefore, as the trial
court stated in denying plaintiffs’ ex parte application, plaintiffs’ request was moot.
       Even if the trial court erred by not allowing plaintiffs 30 days leave to amend,
plaintiffs fail to establish that they were prejudiced by the error. Prejudice is not



                                              12
presumed (Code Civ. Proc., § 475); it is an appellant’s burden to affirmatively
demonstrate prejudicial error. (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.)
       Plaintiffs argue they were prejudiced because “[i]t is reasonable to assume that had
[plaintiffs’] been provided this additional time to amend, they would have been
successful in obtaining a stipulated judgment from [] Munoz because fighting the
declaratory action was never in her interest.” Plaintiffs similarly argue, “Had [plaintiffs]
been given the statutorily mandated 30 days leave to amend in September 2014, it is
possible that they could have obtained [Munoz’s] consent to a stipulated judgment, and
would have therefore been able to plead in the [TAC] that they established their lien
against her.” These arguments are not only speculative but actually refuted by the record.
Plaintiffs did not obtain Munoz’s consent to a stipulated judgment by the September 24,
2014, hearing—which was 30 days from when the first MJOP was granted. Moreover,
Munoz did, in fact, “fight[]” the Munoz declaratory relief action. As plaintiffs admit,
Munoz successfully argued that action was barred by applicable statute of limitations and
was dismissed.4 Plaintiffs have failed to establish they were prejudiced by the trial
court’s failure to permit plaintiffs 30 days leave to file an amended complaint, instead of
five days.


       C.     Vacating the Dismissal of the Conversion Cause of Action
       Plaintiffs contend the trial court erred in vacating the voluntary dismissal of the
conversion cause of action. Plaintiffs filed one request for voluntary dismissal that was
not acted upon (perhaps because it was ambiguous as to which plaintiff sought dismissal)
and then filed a second request the day before the MJOP hearing that was signed by a
clerk. The trial court did not err in vacating that dismissal.
       Section 581, subdivision (c) of the Code of Civil Procedure provides “[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

4     The trial court’s ruling in the Munoz declaratory relief action is on appeal in Court
of Appeal Case No. B265750.

                                              13
commencement of trial.” “But ‘[t]he right of a plaintiff to voluntarily dismiss an action
before commencement of trial is not absolute.’ [Citation.] There are statutory exceptions
to a plaintiff’s right of voluntary dismissal, and ‘other limitations have evolved through
the courts’ construction of the term “commencement of trial.”’ [Citation.] The meaning
of the term ‘trial’ is not restricted to jury or court trials on the merits, but includes other
procedures that ‘“effectively dispose of the case.”’ [Citation.]” (Mary Morgan, Inc. v.
Melzark (1996) 49 Cal.App.4th 765, 769.) That is, “[t]hese exceptions generally arise
where the action has proceeded to a determinative adjudication, or to a decision that is
tantamount to an adjudication. [Citation.]” (Cravens v. State Bd. of Equalization (1997)
52 Cal.App.4th 253, 256; Mary Morgan, Inc. v. Melzark, supra, 49 Cal.App.4th at pp.
768-769.)
       “When the [voluntary] dismissal could be said to have been taken [¶] . . . in the
light of a public and formal indication by the trial court of the legal merits of the case, or
[¶] . . . in the light of some procedural dereliction by the dismissing plaintiff that made
dismissal otherwise inevitable, then the voluntary dismissal is ineffective.” (Franklin
Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 200 (Franklin Capital).) The court
in Groth Bros. Oldsmobile, Inc. v. Gallagher (2002) 97 Cal.App.4th 60 (Groth Bros.
Oldsmobile) held that a voluntary dismissal without prejudice is invalid once the trial
court posts an adverse tentative ruling on a dispositive motion. (Id. at p. 72.) The court
in Groth Bros. Oldsmobile reasoned, “As Weil and Brown caution, ‘Allowing plaintiff to
dismiss after learning of an adverse tentative ruling seems contrary to policies noted in
Wells [v. Marina City Properties, Inc. (1981) 29 Cal.3d 733, 781]. It would permit a
plaintiff “who was led to suppose a decision would be adverse to him to prevent such
decision and begin anew, thus subjecting the defendant to announcing and continuous
litigation.” Moreover, it would waste “the time and money of the people in a fruitless
proceeding in the courts . . .” [Wells v. Marina City Properties, Inc., supra, 29 C.3d at
[p.] 785 . . . .]’ (Weil & Brown [, Cal. Practice Guide: Civil Procedure Before Trial (The
Rutter Group 2011) ¶] 11:25.3, p. 11-12.) This is precisely what occurred here. As was
the court in Gray [v. Superior Court (1997) 52 Cal.App.4th 165], we are persuaded that

                                               14
the ‘thread of fairness is twisted out of true by the facts of this case.’ ([Id.] at p. 173.)”
(Groth Bros. Oldsmobile, supra, 97 Cal.App.4th at pp. 72-73.)
       On August 25, 2014, judgment on the pleadings was granted against Younessi on
the SAC, including the third cause of action for conversion. The trial court permitted
Younessi a “very very narrow” leave to amend—the expressed purpose of the leave to
amend was to allow Younessi the opportunity to plead “whether or not the lien was based
upon an agreed upon lien, whether or not there had been a determination as to the validity
of the lien prior to the filing of the litigation.” The trial court specifically stated, “if
[Younessi] does not plead in this third amended complaint that he has first established the
existence, amount, and enforceability of his lien on the settlement money by way of a
declaratory relief action against his client Munoz, then Defendants may bring a
dispositive motion which the Court would likely grant without leave to amend.” (Italics
added.) This constitutes “a public and formal indication by the trial court of the legal
merits of the case.” (Franklin Capital, supra, 148 Cal.App.4th at p. 200.) That is, the
trial court had determined, prior to plaintiff’s voluntary dismissal of its conversion cause
of action without prejudice, that the operative complaint was defective because it did not
allege Younessi established the existence, amount, and enforceability of his lien on the
settlement money by way of a declaratory relief action against his client Munoz. For that
reason, the trial court provided Younessi with an opportunity to amend the operative
complaint to avoid a dispositive motion.
       Although plaintiffs filed a TAC, it did not cure the defect for which Younessi was
provided leave to amend. It did not allege plaintiffs established the existence, amount,
and enforceability of the lien on the settlement money. Plaintiffs merely alleged in the
TAC that they “are currently in the process of” establishing the existence, amount, and
enforceability of their lien on the settlement proceeds.
       At the time plaintiffs filed their request for dismissal, it was clear that a dispositive
motion—the second MJOP—was pending and all their causes of action were subject to
dismissal at the September 24 hearing. The TAC did not cure the deficiency the trial
court identified in the SAC on August 25, and the MJOP challenging the TAC had been

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pending since September 4. Plaintiffs cannot avoid the imminent ruling by simply
voluntarily dismissing the cause of action without prejudice. The trial court did not err in
granting defendants’ ex parte application to set aside the clerk’s entry of dismissal of the
conversion cause of action on the previous day. The court properly did so and then
proceeded to enter judgment for defendants on the entire TAC, as it ruled on August 25
that it would do absent a successful amendment.


                                      DISPOSITION


       The judgment is affirmed. The parties are to bear their own costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                                  RAPHAEL, J.


We concur:



              KRIEGLER, Acting P.J.



              BAKER, J.





       Judge of the Superior Court of the County of Los Angeles, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.

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