Week of April 20, 2009

"Defendants' argument is curious for another reason. If the rule summarized in Gogri and Franklin applies (which it does not), then Fries's dismissal was invalid because her right to dismiss was foreclosed by the tentative ruling. In that case, subsequent discovery orders are not void - but the basis for defendants' costs awards also disappears. This would seem to be a poor bargain, and, in fact, it is not what defendants appear to be seeking. Instead, it seems defendants would like this court to find the dismissal sufficiently valid to support their costs awards, but not so valid as to deprive the court of jurisdiction to rule on the discovery motions. Not surprisingly, they cite no law for this 'a little bit dismissed' theory."

Justice Peter J. Siggins

Fries v. Rite Aid Corporation (A120488, April 22, 2009
p. 12