M & R Properties v. Thomson

M & R Properties v. Thomson (1992) 11 Cal. App. 4th 899, explored the effects of a tentative ruling in the context of the defendant's right to dismiss an action for lack of prosecution under the five-year statute. In that case, the court issued a tentative ruling granting the defendant's motion to dismiss. The tentative ruling provided that any oral argument would be heard on September 12 at 9:00 a.m. and, consistent with local rules of court, required that a party desiring a hearing on the motion must contact the court and opposing counsel by 4:30 p.m. of the day preceding the hearing. ( Id. at p. 901.) The plaintiffs did not request oral argument, but instead filed a request for a voluntary dismissal without prejudice on September 12 at 10:39 a.m. The clerk entered the voluntary dismissal and the trial court vacated it and entered an order of mandatory dismissal. The Court of Appeal affirmed, recognizing that the case involved "the conflicting rights of a defendant to a mandatory dismissal--which is intertwined with the duty of the trial court to dismiss an action for lack of prosecution--and of a plaintiff to a voluntary dismissal." ( Id. at p. 902.) The court determined the defendant's right was stronger and concluded "that plaintiff's right to seek a voluntary dismissal is cut off by a ruling granting a defendant's motion to dismiss the action for lack of prosecution." (Ibid.) The court reasoned that "the opinion in Wells supports the conclusion that a plaintiff's right to a voluntary dismissal is cut off no later than the time of a ruling effectively disposing of the case (or at the end of a time period specified in that ruling), whether or not that disposition involves an adjudication of the actual merits of the action." ( Id. at p. 905.)