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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.,

Plaintiff s and Appellant s ,

v.
MICHAEL A. KILLACKEY et al.,
Defendants and Respondents. B260308
(Los Angeles County Super. Ct. No. B C 494677 )

APPEAL from a judgment of the Superior Court of the County of Los Angeles, Elizabeth Allen White, Judge. Affirme d. 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.2 INTRODUCTION

Plainti f fs and appellant s Ramin R. Younessi (Younessi) and Law Offices of
Ramin R. Younessi, a professional law corporation ( L ORY

- Corp

. ) , appeal from a judgment entered after the trial court grant ed a motion for judgment on the pleadings filed by defendants and respondents Michael A. Killa ckey (Killackey) and Killackey Law Offices, LLP (KLO

- LLP)

. Plaintiff s contend that the trial court erred in acting upon four ex parte applications in the course of the case: g ranting defendants’ ex parte application for a trial continuance; denying plain tiffs’ 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 Veronic a Munoz, who,
in November 2008, was injured in an automobile accident involving James Sheridan. In April 2010, Munoz retained L ORY

- Corp. to represent her as counsel in
connection with the November 2008 accident. Munoz agreed to pay L ORY

- Corp

. a conting ency fee of 33 1/3 percent of the gross recovery obtai ned without a lawsuit or 40 percent of the gross recovery ob tained if a lawsuit was filed. In Apri l 2010, L ORY

- Corp

. filed an action on behalf of Munoz and her passenger against Sheridan (Sheridan ac tion). Younessi ’ s only involvement in Munoz ’ s

re presentation was that on behalf of L ORY

- Corp. In June 2011, Muno z terminated L ORY

- Corp

. as her attorney, and, according to defendants, on the same day retained KLO

- LLP to represent her in the Sheridan act ion.
KLO

- LLP filed a substitution of attorney and became Munoz ’ s counsel of record in the3

Sheridan action. In December 2011 the Sheridan action settled
, and o n April 23, 2012,
KLO

- LLP received settlement funds in the Sheridan action and deposited them in to its
client trust account. On October 29, 2012, Y ounessi, through his counsel, L ORY

- 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, Y ounessi, through his counsel, L ORY

- Corp., filed a second amended complaint (SAC) asserting causes of action for compensation for legal services rendered, breach of lien, and conversion. B ecause 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 a lleged 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
l east six months the trial set for March 7, 2014

. T he 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, Youn essi 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 m ust first sue the client in a separate action and establish the existence, amount, and enfo rc eability 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 S ec ond 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

.4

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 substitut ed himself and another attorney as
Younessi ’ s counsel instead of L ORY

- Corp. , which had been a suspended and unregistered corporation throughout the lawsuit. 3 On August 1, 2014, with LORY

- Corp.
returned t o 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 ag ainst defendants for money h ad and r eceived

. Plaintiffs then initiated a separate lawsuit that they argue was fil ed “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 port ion 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 th e 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 th e Munoz declaratory
relief action was not before it (and had not been “related” to th e 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 applica ble statute of limitations bars the Munoz decl aratory 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 ther e 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 Decem

ber 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 cer tified 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.5

The trial court ruled that “ all of [Younessi ’ s] c auses of action s [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] d oes 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 wo uld 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 Septembe r 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 mo tion. 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 exte nding the deadline to file6

the TAC to 30 days from the Aug ust 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 Plainti ff [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 appl ications, 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.”
E ven though plaintiffs had fi led the T AC 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 motio n 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 ord er 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, s tating 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 secon d MJOP. Meanwhile, o n 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 dismiss ing the
cause of action. The record does not indicate tha t 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 c au se of
action. Dismissal was entered by a clerk on the same date.7

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 Moti on for Judgment on the Pleading[s] with leave to
amend. Th e 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 b ased 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 defend ants ’ second MJOP without leave to amend because the TAC did not allege that plaintiffs had obtain ed a judgment against Munoz establishing the existence, amount, and enforceability of the lien on the settlement proceeds. The trial court also granted defen dants ’ 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 ca u se of action by simply dismissing it without prejudice. Judgment was entere d in favor of defendants. Plaintiffs filed a timely notice of appeal.

DISCUSSION

A

. Ex Parte Applications to Continue
Plaintiff s 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.8 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 d iscretion. ( 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 uph eld. ’ [Citation.] How ever, it is much more difficult to demonstrate an abuse of
discretion when a continuance is granted

. “ ‘ “ O n an appeal from the judgment (the order itself being nonappealable) it is practically impossible to show reversible error in t he 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 reaso n or it can fairly be said that no judge would reasonably make the same orde r 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 ) Defendant s ’ E x Parte A pplication to C ontinue T rial
Plaintiffs have not establish ed the trial court abused its discretion in granting
defendants ’ January 10, 2014, ex parte applic ation 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 hear d ex parte , as required by California Rules of9

Court, rule 3.1202. Plaintiffs have forfeited this contention. There is nothing in the record to establish p laintiffs objected on that basis during the trial court proceedings. “ A party forfeits the rig ht 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 C al.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, Janu ary 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 dat e.”
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 oppor tunity,” 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 defenda nts did not serve their ex parte application
until t he 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.10 b ) Plaintif

fs ’ Ex Parte Application to Continue Trial o r Stay t he 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
declarator y relief action on August 18, 2014, “in order to satisfy” M ojtahedi
, supra , 228 Cal.App.4th at pages 974, 976, 977

- 979 , as under t hat 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 M ojtahedi , p ublished 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.
M ojtahedi
, supra , 228 Cal.App.4th 974 did not create a “significant and unanticipa ted 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

aga inst the client before suing a successor attorney , stating that this law was “well
established.” ( M

ojtahedi
, supra , 228 Cal.App.4th at p. 977. ) M ojtahedi stated
, “ It is well
established that ‘ “[a]fter the client obtains a judgment [or settlement] , the at torney must bring a separate, independent action against the client to establish the existence of the lien, to determine the amount o f the lien, and to enforce it. ” ’ ( Brown v. Superior Court (2004) 116 Cal.App.4th 320, 328 [ ] , quoting Carroll [ v. Intersta te Brands Corp . ( 2002 )] 99 Cal.App.4th [1168,] 1173; a ccord, 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, ] 23 4 [( Bandy )]; Hendricks v. Superior Court (1961) 197 Cal.App.2d 586, 589 [ ] .) ” ( M

ojtahedi
, supra , 228 Cal.App.4th at pp. 977

- 978.) “ [ T ] he central principle conveyed by Valenta
, Hansen
, and Bandy [is] the attorney ’ s l ien is only enforceable after the attorney adjudicates the value and validity of the lien in a separate11

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.)
I t ha d long been held that a n 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 r endered 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 h is case from the est ablished 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. ( M ojtahedi
, 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, p laintiffs d id 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 claim ed that th e cent ral 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 c omplaint against defendants seeking attorney fees purportedly based on his representing Munoz

. The trial court did not abuse its discretion12

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 th at declaratory relief action , which under existing law, plaintiffs should have filed several years prior

.

B

. 30 Days Leave t o Amend Complaint
Plaintiff s contend the trial court erred by failing to permit plaintiffs ’ 30 days lea ve 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, t he 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 fil ed 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

argue d, as they do on a ppeal, 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 p arte 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, a s 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 not13

presumed (Code Civ. Proc.
, § 475); it is a n 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 Mun oz declaratory relief action . A s 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 p laintiffs 30 days leave to file an amended complaint , instead of five days.

C

. Vacating the Dismissal of t he Conversion Cause o f Action
Plaintiff s contend the trial court erred in vacating the voluntary dismissal of the
conversion cause of action

. Pla intiffs 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, wi th 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 Ap peal Case No. B265750

.14

commencement of trial.” “B ut ‘ [t]he right of a plaintiff to voluntarily dismiss an action
before commencement of trial is not absolute. ’ [Citation.] Th ere are statutory exceptions to a plaintiff ’ s rig ht of vol untary 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 procedure s that ‘ “ effect ively dispose of the case. ” ’ [Citation.]” ( Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App. 4th 765 , 769.) That is, “[t] hese exceptions genera lly 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 .)

“ W hen the [ voluntary] di smissal 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 di smissal 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 witho ut 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 su bjecting 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 201 1 ) ¶ ] 11:25. 3 , p. 11

- 1 2 .) This is precisely what occurred here. As was
the court in Gray [ v. Superior Court (1997) 52 Cal.App. 4th 165 ], we are persuaded that15

the ‘ thread o f fairness is twisted out of true by the facts of this case. ’ ([ Id .] a t p. 173.) ” ( Groth Bros. Oldsmobile, supra, 97 Cal.App.4th at pp. 72

- 73.) On August 25, 2014, judgment o n the pleadings was granted against Younessi on the SAC , including the t hird ca use of a ction for c onversion. T he t rial c ourt permit ted
Younessi a “ very very narr ow” 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, wh ether or not there had been a determination as to the validity of the lien prior to the filing of the litigation.” The t rial c ourt specifically stated, “ if [Younessi] does not plead in this third amended complaint that he has first established the
existen ce, 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 conversi on 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 w as provided leave to amen d. 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
enforceabi lity 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 heari ng. The TAC did not cure the deficiency the trial court identified in the SAC on August 25, and the MJOP challenging the TAC had been16

pending since September 4. P laintiffs c an not avoid the imminent ruling by simply voluntarily dismissing the cause of act ion without prejudice. The trial court did not err in grant ing 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 judgm ent 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.