Merritt v. Mozilo CA6

Filed 8/25/21 Merritt v. Mozilo CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

SALMA MERRITT et al., H047636 (Santa Clara County Plaintiffs and Appellants, Super. Ct. No. 2009-1-CV-159993)

v.

ANGELO MOZILO et al.,

Defendants and Respondents.

Plaintiffs Salma Merritt and David Merritt obtained two loans to purchase a home. After they were unable to repay the loan, they brought an action against several defendants for predatory lending practices. The trial court entered a judgment of dismissal after granting defendants’ motions for judgment on the pleadings.1 Plaintiffs appealed, and on September 17, 2019, this court affirmed the judgment. (Merritt et al. v. Countrywide Financial Corp. et al. (Sept. 17, 2019, H041560) [nonpub. opn.] (H041560).) The remittitur issued on November 25, 2019.

1 One motion for judgment on the pleadings was brought by defendants: Countrywide Home Loans, Inc. (CHL) and its parent company Countrywide Financial Corporation (CFC); their successor in interest, Bank of America, N.A.; former CFC Chief Executive Officer Angelo Mozilo; former CFC executive David Sambol; former CHL branch manager Michael Colyer; and former Bank of America Chief Executive Officer Kenneth Lewis (collectively Countrywide defendants). A second motion was brought by defendant JPMorgan Chase Bank, N.A. (Chase). Chase appeared on behalf of Bear Stearns.

On September 26, 2019, Countrywide defendants filed with the clerk a request to voluntarily dismiss without prejudice a cross-complaint it had filed on August 30, 2012.2 The clerk entered the dismissal as requested. Plaintiffs subsequently filed an application requesting that the trial court: (a) vacate the entry of dismissal; or (b) amend the judgment of dismissal to include the cross-complaint; or (c) dismiss the cross-complaint with prejudice based on abandonment; or (d) enter an order holding that this court’s 2019 opinion is a final judgment as to the cross-complaint. After obtaining briefing, the trial court denied the application, finding that Countrywide defendants “had the right to dismiss the cross-complaint.” Plaintiffs appeal, arguing that it was improper for the clerk to enter a dismissal without prejudice because: (a) the cross-complaint had been abandoned; (b) Code of Civil Procedure section 581, subdivision (i)3 precluded voluntary dismissal; (c) the case had already been adjudicated; (d) lack of jurisdiction precluded voluntary dismissal; and (e) principles of retraxit demand that the voluntary dismissal be deemed to be with prejudice. We reject these arguments and affirm the order. I. DISCUSSION Section 581 permits a plaintiff to voluntarily dismiss, with or without prejudice, a case or any cause of action before “the actual commencement of trial.” (§ 581, subds. (b)(1), (c).) “Apart from certain . . . statutory exceptions, a plaintiff’s right to a voluntary dismissal [before commencement of trial pursuant to section 581] appears to be absolute. [Citation.] Upon the proper exercise of that right, a trial court would thereafter lack jurisdiction to enter further orders in the dismissed action.” (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 784.)