Maxwell v. Cooltech, Inc.

[631]

Opinion

BUCKLEY, J.

Statement of the Case

Lindemann Produce, Inc. (Lindemann), filed a complaint in the Kern County Superior Court on September 24, 1993, naming as defendants Cooltech, Inc. (Cooltech), and Phillip H. Maxwell et al. Both Maxwell and Cooltech filed answers.

On March 20, 1995, Maxwell filed and served a cross-complaint for equitable indemnity, contribution and declaratory relief against Cooltech et al. Service was effected by serving the cross-complaint personally on Cooltech’s attorney on March 20, 1995.

On March 22, 1995, the first amended complaint and the cross-complaint were dismissed with prejudice. The dismissals were entered on October 19, 1995. Thereafter, on February 13, 1996, cross-complainant Maxwell filed a motion to vacate the dismissal of the cross-complaint pursuant to Code of Civil Procedure section 473

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on the ground cross-complainant Maxwell never intended to dismiss the cross-complaint

with prejudice.

The motion was served on February 9, 1996, by mailing the motion to the attorney who represented Cooltech in the underlying action. The attorney for Cooltech appeared specially at the hearing on the motion to challenge the jurisdiction of the court to hear the motion based on lack of personal jurisdiction due to defective notice of the motion. The court, after hearing argument, granted Maxwell’s motion by vacating the dismissal with prejudice and replacing it with a dismissal without prejudice.

Discussion

Cooltech argues the court did not have personal jurisdiction over Cooltech after the voluntary dismissal. Cooltech concedes that notwithstanding the voluntary dismissal,

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the trial court retained subject matter jurisdiction to vacate the judgment under section 473

(Basinger