Case Name: Michael Formico v. Kim Dincel, et al.

Case No.: 1-14-CV-263366

Motion for Summary Judgment by Defendants Kim Dincel and Dincel Law Group, A Professional Corporation

In or around October 2012, plaintiff Michael Formico (“Formico”) employed defendants Kim Dincel and Dincel Law Group, A Professional Corporation (erroneously sued as Dincel Law Group; collectively, “Dincel”) to defend Formico in an action filed in the United States District Court for the Northern District of California entitled Monterey Bay Boatworks Company v. Formico, case number 12-CV04544-LHK (“Underlying Action”). (Complaint, ¶7.) Plaintiff Formico had a meritorious defense to the Underlying Action. (Complaint, ¶8.) Defendants Dincel failed to exercise reasonable care and skill in representing Formico in the Underlying Action. (Complaint, ¶9.) As a result, plaintiff Formico suffered damages in the approximate amount of $200,000. (Complaint, ¶12.)

On April 7, 2014, plaintiff Formico filed a complaint against defendants Dincel asserting a single cause of action for legal malpractice. On July 10, 2014, defendants Dincel filed an answer to the complaint.

On February 24, 2016, the court issued an order, in relevant part, which deemed admitted the defendants’ request for admissions propounded upon plaintiff Formico on or about November 5, 2015.

On April 12, 2016, defendants Dincel filed this motion for summary judgment with a hearing date initially set for July 12, 2016.

On June 20, 2016, the clerk of court entered dismissal pursuant to plaintiff Formico’s request for dismissal of the entire action without prejudice.

In spite of the dismissal, defendants Dincel filed a reply on July 7, 2016 requesting the court grant summary judgment nevertheless. On July 12, 2016, the court continued the hearing on defendants’ motion for summary judgment to August 23, 2016.

On August 10, 2016, plaintiff Formico filed a responsive brief regarding dismissal. On the same date, defendants Dincel filed a response to plaintiff Formico’s responsive brief.

Discussion

In the reply brief filed by defendants Dincel on July 7, 2016, defendants Dincel cited Miller v. Marina Mercy Hospital (1984) 157 Cal.App.3d 765 (Miller) for the proposition that a plaintiff’s right to dismiss is terminated when requests for admissions propounded to plaintiff are deemed admitted against the plaintiff. Plaintiff’s attempt to dismiss in advance of the hearing on the motion for summary judgment is ineffective and the trial court retains jurisdiction to grant summary judgment.

In the responsive brief filed by plaintiff Formico, Formico relies exclusively on Zapanta v. Universal Care, Inc. (2003) 107 Cal.App.4th 1167 (Zapanta) where plaintiffs filed a request for dismissal one day before their opposition to summary judgment was due. The trial court struck the request for dismissal and granted summary judgment. The appellate court reversed. The appellate court held the plaintiffs’ dismissal was valid because “the case had not yet reached a stage where a final disposition was a mere formality.” (Zapanta, supra, 107 Cal.App.4th at pp. 1173 – 1174.) The court noted, however, that, “the right of a plaintiff to voluntarily dismiss an action before commencement of trial is not absolute.” (Id. at p. 1171.) The Zapanta court distinguished Miller on the basis that, “unlike Miller, respondents had no preexisting entitlement to a favorable disposition at the time appellants dismissed the action.” (Id. at p. 1173.)

The court agrees with defendants Dincel that the facts here are more analogous to Miller than to Zapanta. As discussed above, this court issued an order on February 24, 2016 which, in relevant part, deemed admitted the defendants’ request for admissions propounded upon plaintiff Formico on or about November 5, 2015. On May 17, 2016, this court denied plaintiff Formico’s motion for relief from deemed admissions. The net result is that defendants Dincel had a preexisting entitlement to a favorable disposition at the time plaintiff Formico dismissed the action on June 20, 2016. Plaintiff Formico’s dismissal filed June 20, 2016 is ineffective.

Accordingly, defendants Dincel’s motion for summary judgment of plaintiff Formico’s complaint is GRANTED.