Nixon Peabody LLP v. Superior Court

Filed 10/17/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

NIXON PEABODY LLP, B256871

Petitioner, (Los Angeles County Super. Ct. No. BC483658) v.

SUPERIOR COURT OF THE COUNTY OF LOS ANGELES,

Respondent;

CABOT GOLF CL-PP 1, LLC., et al.

Real Parties in Interest.

ORIGINAL PROCEEDINGS in mandate. Michael L. Stern, Judge. Petition granted. Hill, Farrer & Burrill, Kevin H. Brogan, Dean E. Dennis, and William A. Meyers, for Petitioner. No appearance for Respondent. Winsten Law Group and Michael S. Winsten, for Real Parties in Interest.

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Petitioner Nixon Peabody LLP seeks a writ of mandate directing the trial court to 1 set aside its order granting real parties’ motion to vacate their voluntary dismissal under 2 Code of Civil Procedure section 473, subdivision (d) on the ground that the dismissal was void. Petitioner argues the trial court erred in its finding. We agree with petitioner and issue the writ.

FACTUAL AND PROCEDURAL SUMMARY The facts concerning the instant petition for writ are undisputed. In 2007, real parties purchased interests in two Florida golf clubs. Petitioner represented real parties in the transaction. On April 27, 2012, real parties initiated the underlying action in the Los Angeles County Superior Court against numerous entities, alleging that the private placement memorandum used was false and misleading and that petitioner failed in its duty to ensure proper disclosures were made to real parties. On advice of their new counsel, Michael S. Hull, real parties filed nearly identical suits in the United States District Court for the Eastern District of Texas on April 28, 2012, and in the United States District Court for the Central District of California on April 30, 2012. Over the next several months, real parties actively litigated the three cases. Then, in November 2012, on Mr. Hull’s advice, real parties dismissed the instant case and the federal action pending in the Central District of California, leaving only the federal action 1 The real parties in interest are Cabot Golf CL-PP 1, LLC, Cabot Golf CL-PP 3, LLC, Cabot Golf CL-PP 4, LLC, Cabot Golf CL-PP 5, LLC, Cabot Golf CL-PP 6, LLC, Cabot Golf CL-PP 7, LLC, Cabot Golf CL-PP 8, LLC, Cabot Golf CL-PP 9, LLC, Cabot Golf CL-PP 11, LLC, Cabot Golf CL-PP 12, LLC, Cabot Golf CL-PP 13, LLC, Cabot Golf CL-PP 14, LLC, Cabot Golf CL-PP 15, LLC, Cabot Golf CL-PP 16, LLC, Cabot Golf CL-PP 17, LLC, Cabot Golf CL-PP 18, LLC, Cabot Golf CL-PP 19, LLC, Cabot Golf CL-PP 20, LLC, Cabot Golf CL-PP 21, LLC, Cabot Golf CL-PP 22, LLC, Cabot Golf CL-PP 23, LLC, Cabot Golf CL-PP 24, LLC, Cabot Golf CL-PP 25, LLC, Cabot Golf CL-PP 26, LLC, Cabot Golf CL-PP 28, LLC, Cabot Golf CL-PP 29, LLC, Cabot Golf CL-PP 30, LLC, Cabot Golf CL-PP 31, LLC, Cabot Golf CL-PP 32, LLC, Cabot Golf CL-PP 33, LLC, and Cabot Golf CL-PP 34, LLC. 2 Subsequent section references are to the Code of Civil Procedure.