Plaintiff Not Permitted To Voluntarily Dismiss To Avoid Adverse Decision.

Plaintiff’s opposition to a demurrer was filed late, and the court gave plaintiff two choices:  (1) the court would strike the opposition and go ahead with the hearing; or (2) the court could continue the hearing and order plaintiff to pay any costs incurred as a result of the continuance plus attorney fees and have counsel come back next time with a declaration as to fees.  Instead, all defense counsel agreed to read the late opposition and that the court could hear the matter later that morning.  However, plaintiff told the court:  “I was wondering if it wouldn’t be just wise to go ahead and dismiss this without prejudice and then refile with possibly an attorney to work on this for me.” The court went ahead and heard the demurrer, and sustained it without leave to amend. Plaintiff’s sole contention on appeal is that the trial court erred in denying his oral request at the hearing on the demurrer to voluntarily dismiss his case without prejudice pursuant to Code of Civil Procedure section 581. Noting that a plaintiff may not file a voluntary dismissal in order to avoid an impending adverse decision, the appellate court affirmed. (Pielstick v. Midfirst Bank (Cal. App. Second Dist., Div. 2; March 26, 2014)224 Cal.App.4th 1452, [169 Cal.Rptr.3d 642].)