Hypothetical One. Plaintiff files a state court lawsuit through counsel, plaintiff and his attorney decide to dismiss the lawsuit and refile it, and counsel does so, but in the dismissal, the attorney accidentally checks the "with prejudice" instead of "without prejudice". Plaintiff subsequently moves to vacate the state court dismissal under CCP 473 -- a dismissal that would otherwise be res judicata to the refiled complaint -- claiming that the dismissal with prejudice was void because he only authorized a dismissal without prejudice, not with prejudice. Do you vacate the dismissal?
Hypothetical Two. Plaintiff files a state court lawsuit through counsel, plaintiff and his attorney decide to file two other duplicative actions in federal court as well "to be safe", and then plaintiff and his attorney decide to dismiss the state suit and one of the federal actions and go forward with the third, and attorney does so. But neither person realizes that the dismissal of the state and federal actions will operate as a dismissal with prejudice under the federal two-dismissal rule, so plaintiff subsequently moves to vacate the state court dismissal under CCP 473 -- a dismissal that would otherwise be res judicata to the pending complaint -- claiming that a dismissal that was effectively with prejudice was void because he only authorized a dismissal without prejudice, not with prejudice. Do you vacate the dismissal?
What's the rule?
The Court of Appeal holds today that a court is required to vacate the dismissal in Hypothetical One but is precluded as a matter of law from vacating the dismissal in Hypothetical Two. Granting a writ of mandate in Hypothetical Two compelling the trial court to set aside its order vacating the dismissal.
Was that your answer as well?
