Legal Question in Wills and Trusts in California

This is a probate case. I am the Respondent. The Attorney for the Petitioner wanted to settle the case out of court and the case was (dismissed with prejudice persettlement) - Case Dismissed/Disposed. The same attorney filed a dismissal with the court a few days later and requested the clerk to please dismiss this action "Without Prejudice". I read online that the purpose and effect of the words without prejudice in a judgment, order, or decree dismissing a suit are to prohibit the defendant from using the doctrine of Res Judicata in any later action by the same plaintiff on the subject matter. Therefore, the words without prejudice protect the plaintiff from a defendant's res judicata defense.

My question is: by him requesting "Without Prejudice", is this standard protocol when closing and finalizing any case, or should I be concerned that he selected "Without Prejudice" only to protect the Petitioner so that I give up my rights to defend myself? Another question: Should I tell the Attorney to change it to dismiss the action "With Prejudice", or do you think what he requested "Without Prejudice" is in good faith in order to finalize and close the case? I am Pro Se in this case. Your assistance is very much appreciated. Thank you.


Asked on 12/06/12, 2:50 pm

1 Answer from Attorneys
Jacob Kiani Law Office of Jacob I. Kiani

What I can tell you is that typically "without prejudice" means petitioner or plaintiff can refile the case. You want it dismissed "with prejudice" which means he may not bring a claim based on the same set of facts and circumstances.

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Answered on 12/06/12, 5:23 pm


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