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Nixon Peabody LLP v. Superior Court (Cabot Golf CL-PP 1, LLC)

California Court of Appeals, Second District, Fourth Division

October 17, 2014

NIXON PEABODY LLP, Petitioner,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY. Respondent CABOT GOLF CL-PP 1, LLC., et al. Real Parties in Interest. (###Party2###)

ORIGINAL PROCEEDINGS in mandate. Michael L. Stern, Judge, Los Angeles County Super. Ct. No. BC483658

Page 819

COUNSEL

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.

OPINION

EPSTEIN, P. J.

Petitioner Nixon Peabody LLP seeks a writ of mandate directing the trial court to set aside its order granting real parties in interest's[1]

Page 820

motion to vacate their voluntary dismissal under Code of Civil Procedure section 473, subdivision (d)[2] 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 in interest purchased interests in two Florida golf clubs. Petitioner represented real parties in interest in the transaction. On April 27, 2012, real parties in interest 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 in interest. On advice of their new counsel, Michael S. Hull, real parties in interest 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 in interest actively litigated the three cases. Then, in November 2012, on Mr. Hull’s advice, real parties in interest dismissed the instant case and the federal action pending in the Central District of California, leaving only the federal action in the eastern district of Texas. Doing so exposed real parties in interest to the federal two-dismissal rule.[3] Realizing this, petitioner moved to dismiss the Texas case under this rule, arguing real parties in interest's second voluntary dismissal operated as a dismissal on the merits and claiming the Texas case was barred under the doctrine of res judicata. The district court granted petitioner’s motion and dismissed the Texas case with prejudice. Real parties in interest ...


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