Opinion
E052461
02-15-2012
RAY THUEMLER, Plaintiff and Appellant, v. CHRYSLER GROUP, LLC, Defendant and Respondent.
Krohn & Moss, Jennifer Basola and John D. Barker for Plaintiff and Appellant. Gates, O'Doherty, Gonter & Guy and Matthew M. Proudfoot for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. CIVRS1008390)
OPINION
APPEAL from the Superior Court of San Bernardino County. Robert S. Drake, Judge. (Retired Judge of the Mun. Ct. for the San Bernardino Jud. Dist. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Krohn & Moss, Jennifer Basola and John D. Barker for Plaintiff and Appellant.
Gates, O'Doherty, Gonter & Guy and Matthew M. Proudfoot for Defendant and Respondent.
I
INTRODUCTION
After plaintiff Ray Thuemler dismissed a lemon law action, he filed an identical second action against defendant Chrysler Group, LLC (Chrysler Group). The superior court sustained Chrysler Group's demurrer without leave to amend on the grounds of retraxit. Thuemler appeals from the judgment in favor of Chrysler Group.
Because the first action was dismissed with prejudice, we affirm the judgment: "A dismissal with prejudice is the modern name for a common law retraxit. (Robinson v. Hiles (1953) 119 Cal.App.2d 666, 672.)" (Torrey Pines Bank v. Superior Court (1989) 216 Cal.App.3d 813, 820.)
II
FACTUAL AND PROCEDURAL BACKGROUND
Few, if any, material facts are disputed by the parties.
Thuemler purchased a 2008 Jeep Wrangler for about $40,000. He claims the vehicle had various defects in the body, interior and exterior trim, the air conditioning system, and the electrical system. On October 31, 2008, he executed a written revocation of the purchase.
A. Dismissal of Thuemler v. Chrysler
Thuemler filed a complaint against Chrysler LLC (Chrysler) in January 2009 (Thuemler v. Chrysler LLC (Super. Ct. San Bernardino County, 2009, No. CIVRS900176) for breach of warranties under the Magnuson-Moss Warranty Act, 15 United States Code section 2301 et seq., and the Song-Beverly Consumer Warranty Act, Civil Code section 1790 et seq. When Chrysler filed bankruptcy in May 2009, the case was stayed.
The parties stipulated on September 18, 2009, to substitute Chrysler Group as the defendant in place of Chrysler and the parties intended to dismiss Chrysler only. Chrysler Group filed an answer in October 2009.
On November 12, 2009, the court filed Thuemler's request for dismissal. The request was signed by Thuemler's lawyer, Heather Antoine. Two boxes were checked on the form, instructing the court clerk to dismiss "with prejudice" the "[e]ntire action of all parties and all causes of action."
Thuemler's current lawyer, Jennifer Basola, did not realize the entire action had been dismissed until a few days before June 14, 2010, when the mandatory settlement conference had previously been scheduled. Thuemler immediately filed a motion to reinstate the case. In July 2010, the court denied Thuemler's motion to reinstate the 2009 case as untimely under Code of Civil Procedure section 473 because it had been filed more than six months after the case was dismissed. Thuemler did not appeal the dismissal.
B. Thuemler v. Chrysler Group LLC
On August 2, 2010, Thuemler filed the present action against Chrysler Group. The complaint is identical to the 2009 complaint against Chrysler. Chrysler Group demurred on the grounds that a dismissal with prejudice acts as a retraxit and bars another suit for the same causes of action. Because the 2009 case had been dismissed with prejudice, the court sustained Chrysler Group's demurrer without leave to amend and entered judgment in favor of Chrysler Group.
III
DISCUSSION
Thuemler argues there was a clerical error made when the trial court dismissed the entire 2009 case with prejudice. Thuemler also argues that the 2009 dismissal lacked finality and was not on the merits. Thuemler further contends the doctrine of res judicata should not apply under these circumstances.
The factual predicate for Thuemler's argument is wrong. He repeatedly asserts that the 2009 complaint was dismissed because of a clerical error. But the request for dismissal clearly instructs the clerk if the court "Please dismiss this action as follows [¶] . . . [w]ith prejudice [¶] . . . [¶] . . . [e]ntire action of all parties and all causes of action." Thuemler's attorney may have made a mistake when completing the form by checking the wrong box. But the court clerk did not err in following the instructions on the request for dismissal.
Thuemler primarily bases this appeal on an issue that was finally adjudicated in the 2009 case when the trial court ruled that Thuemler's motion to reinstate the 2009 case was untimely under Code of Civil Procedure section 473 because it was brought more than six months after the inadvertent dismissal. Thuemler did not argue, as he could have, that the dismissal of the 2009 case was not authorized by him. A dismissal affects the client's substantive rights and therefore requires the client's express authority. An attorney has no inherent or implied authority to dismiss the action without the client's consent. (Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 404.) This is particularly true as to a dismissal with prejudice because of its res judicata effect.
Where the attorney's lack of authority to dismiss is undisputed, it is an abuse of discretion for the court to refuse to set aside the dismissal. (Romadka v. Hoge (1991) 232 Cal.App.3d 1231, 1237.) In Romadka, plaintiff authorized dismissal of the action without prejudice. By mistake, plaintiff's attorney checked the "with prejudice" box on the request for dismissal form instead of the "without prejudice" box. Since the mistake was undisputed, plaintiff was entitled to have the unauthorized dismissal with prejudice vacated, and the dismissal amended to state it was without prejudice. (Romadka, at p. 1237.) Although Code of Civil Procedure section 473 relief normally must be sought within six months after a dismissal is entered, an unauthorized dismissal may be vacated at any time, i.e., "within a reasonable time after [the client's] learning of it, regardless of the time limitations in section 473." (Whittier Union High Sch. Dist. v. Superior Court (1977) 66 Cal.App.3d 504, 508.)
Based on the foregoing, Thuemler could have successfully argued in his motion to reinstate that his attorney had no authority to dismiss the entire 2009 case with prejudice even though more than six months had elapsed since the dismissal. If the trial court had still denied his motion, he could have appealed. By failing to appeal, he has lost the right to raise this issue in a subsequent appeal of a separate case. We are limited in our review of the present appeal to considering whether the 2009 dismissal, right or wrong, operates as a retraxit in the present case.
The principles of retraxit and res judicata are explained in Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Co. of America (2005) 133 Cal.App.4th 1319, 1330-1331:
". . . a retraxit—modernly effected by a plaintiff's filing of a dismissal of his or her action with prejudice—is deemed to be a judgment on the merits against that plaintiff. (Torrey Pines Bank[v. Superior Court], supra, 216 Cal.App.3d at p. 820; see Rice v. Crow (2000) 81 Cal.App.4th 725, 733-734 ['A retraxit is a judgment on the merits preventing a subsequent action on the dismissed claim']; Long Beach Grand Prix Assn. v. Hunt (1994) 25 Cal.App.4th 1195, 1198 ['A dismissal with prejudice "is equivalent to a judgment on the merits . . . ."']; Roybal [v. University Ford (1989) 207 Cal.App.3d 1080, 1085-1086]; Datta v. Staab [(1959)] 173 Cal.App.2d 613, 621 ['"A retraxit is equivalent to a verdict and judgment on the merits of the case . . ."'].) In its common law form, a retraxit resulted from a plaintiff's 'open and voluntary renunciation of his suit, in court,' resulting in the loss of his or her action forever. (Roybal, at p. 1086, citing 3 Blackstone, Commentaries 296.) A retraxit arising from a dismissal with prejudice thus operates as a legal fiction, and it is given the same finality as if the matter were adjudicated and proceeded to a final judgment on the merits."
Because a retraxit is deemed to be final judgment on the merits, Thuemler's argument that the dismissal of the 2009 case was not final or on the merits necessarily fails, as does his argument that the related principles of res judicata did not or should not apply. The requirement that an issue was "actually litigated" was satisfied by a dismissal with prejudice. (Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Co. of America, supra, 133 Cal.App.4th at pp. 1331-1333; Dunkin v. Boskey (2000) 82 Cal.App.4th 171, 181.)
IV
DISPOSITION
Thuemler failed to appeal the trial court's order denying his motion to reinstate the dismissal of the 2009 case. The dismissal with prejudice is a retraxit that bars a subsequent lemon law claim by Thuemler against Chrysler Group.
We affirm the judgment but order the parties to bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Codrington
J.
We concur:
McKinster
Acting P.J.
Richli
J.