Legal Question in Construction Law in California

Re: Dismissal without prejudice

It is impossible to properly advise you on whether you SHOULD should file the dismissal. The attorney you fired is legally and ethically obligated to represent you until he or she has been relieved by court order or the filing of a substitution of attorney.

Your new attorney should be advising you on this issue. The statute of limitations in a construction defect case can be very tricky to resolve. There may be 2-3 different applicable time limits based on wether the defects were hidden or obviously and when they were discovered. If you dismiss, you risk not being able to refile of the applicable statute has passed. On the other hand, you risk losing if you are not prepared for your trial.

Even a dismissal without prejudice could result in judgment for costs being filed against you. The amount of recoverable costs might be negligible, but they might not.

The actual dismissal of the lawsuit is usually done within day of the filing of the request. It is a one page form that would take about 5 minutes for your "former" attorney to fill out. He or she must file the original with the court and mail copies to all of the other attorneys.

Re: Dismissal without prejudice

Why would you wait until one week before your trial to fire your attorney? If you dismiss with prejudice there is a very good chance that the statute of limitations has tolled on your cause of action so you would not be able to re-file. Secondly, the defendant's would most likely get a judgement for cost which could be quite substantial depending upon what they have done in the case.

I would move the Court for a continuance of the trial date so that you can get new counsel. You will most likely need to pay a $150.00 motion fee. The Court may or may not grant the motion.

Re: Dismissal without prejudice

Replacing your attorney doesn't ordinarily require or even suggest dismissing an action and re-filing. A dismissal without prejudice does preserve your right to re-file (subject of course to any applicable statute of limitations) but it is a fairly drastic step and will set you back in time and money.

Your new attorney may, however, properly recommend dismissing and re-filing if, for example, there are major technical errors in the previous attorney's work, such as (for example) naming the wrong defendants, failing to add an obvious cause of action, giving the opposition an obvious defense, or the like.

Meeting a September 8 court date might warrant a dismissal and re-filing, but, more likely than not is an over-drastic step. You don't say what the "court date" involves; it could be anything from a simple case management conference to the first day of trial. Substitution of counsel may be adequate reason to postpone the court date, or new counsel could show up and get by with being somewhat unprepared; or, as Mr. Starrett has pointed out, the out-going counsel is obliged to take derriere-garde steps to protect his soon-to-be former client's interests.

If a dismissal without prejudice is to be filed, the judge should be given as much prior notice as possible, as a courtesy. Filing the simple one-page dismissal request is easy, and most court clerks will accept them and enter a dismissal the same day, or the next, but this could vary from county to county with clerical staffs cut way back, as they are these days.

These are things that you should know as well-informed clients. The most important thing is to get a lawyer or law firm "on board" that you trust, as soon as possible, and collaborate with them on making the decision to dismiss, or not.