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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.,

Plaintiffs and Appellants,

v.

MICHAEL A. KILLACKEY et al.,

Defendants and Respondents.

 B260308

 (Los Angeles County

 Super. Ct. No. BC494677)

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.
2

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 
3

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 LORYCorp.’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.
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 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. 
5

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 
6

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.
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 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.
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 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 
9

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-inintervention 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. 
10

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 
11

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 
12

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 
13

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.
14

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 
15

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 
16

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.