Dismissing a California case — and keeping the power to enforce the settlement

Most California cases end in a dismissal, and most dismissals follow a settlement. The two statutes that govern that ending do very different jobs: CCP 581 says when and how a case can be dismissed, and CCP 664.6 says what the court can still do afterwards.

Get the second one wrong and you have a settlement with no court behind it.

When a plaintiff can walk away

CCP 581(b)(1): an action may be dismissed

With or without prejudice, upon written request of the plaintiff to the clerk, filed with papers in the case, or by oral or written request to the court at any time before the actual commencement of trial, upon payment of the costs, if any.

Subdivision (c) says the same from the plaintiff's side: a plaintiff may dismiss the complaint "or any cause of action asserted in it, in its entirety, or as to any defendant or defendants, with or without prejudice prior to the actual commencement of trial."

This is broader than the federal rule. FRCP 41(a)(1) cuts off unilateral dismissal when an answer or summary judgment motion is served; California's line is trial itself.

It is not the most generous on the west coast, though. Washington's CR 41(a)(1)(B) requires the court to dismiss on the plaintiff's motion "at any time before plaintiff rests at the conclusion of plaintiff's opening case" — well past the point where California switches to dismissal with prejudice. Oregon runs the other way, cutting off notice dismissal five days before the day of trial under ORCP 54 A(1).

"Actual commencement of trial" is defined

CCP 581(a)(6) removes the guesswork:

A trial shall be deemed to actually commence at the beginning of the opening statement or argument of any party or his or her counsel, or if there is no opening statement, then at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence.

So jury selection is not the trigger. Neither is the trial call, nor motions in limine. The clock runs to opening statement, or to the first oath or first exhibit.

After trial commences, dismissal is with prejudice

CCP 581(e):

After the actual commencement of trial, the court shall dismiss the complaint … with prejudice, if the plaintiff requests a dismissal, unless all affected parties to the trial consent to dismissal without prejudice or by order of the court dismissing the same without prejudice on a showing of good cause.

And CCP 581(d): where the plaintiff abandons the case upon trial and before final submission, the court "shall dismiss … with prejudice."

The distinction between subdivisions (c) and (e) is the entire practical point of the definition in subdivision (a)(6). Before opening statement, the plaintiff chooses. After it, the default is with prejudice, and it takes consent or good cause to change that.

Two things that block a unilateral dismissal

CCP 581(i): no dismissal may be made under subdivision (b)(1) where

• affirmative relief has been sought by a defendant's cross-complaint; or
• a motion is pending to transfer the action to another court under CCP 396b.

A cross-complaint seeking affirmative relief keeps the case alive whatever the plaintiff does. The plaintiff may still dismiss its own complaint, but the action does not end.

CCP 581(j) adds a signature requirement: no dismissal under (b)(1) or (b)(2) except on the written consent of the attorney for the party applying, or, without that consent, on a court order after notice to the attorney.

CCP 581(k): no certified class action may be dismissed unless notice the court deems adequate has been given and the court orders the dismissal.

The other ways a case gets dismissed

CCP 581(b) also allows dismissal:

• (2) with or without prejudice, by any party upon the written consent of all other parties;
• (3) by the court, without prejudice, when no party appears for trial following 30 days' notice of time and place;
• (4) by the court, without prejudice, under the delay-in-prosecution provisions beginning at CCP 583.110;
• (5) by the court, without prejudice, when either party fails to appear at trial and the other appears and asks for dismissal — repeated in subdivision (l).

After a demurrer or motion to strike — CCP 581(f). The court may dismiss as to a defendant when a demurrer is sustained without leave and either party moves for dismissal; when a demurrer is sustained with leave and the plaintiff fails to amend in time and either party moves; and in the parallel situations for a motion to strike the whole complaint.

Note what that requires: a motion. A sustained demurrer without leave does not dismiss the case by itself.

Jurisdictional dismissals — CCP 581(h): the court may dismiss without prejudice where dismissal is made under CCP 418.10, the motion to quash service.

And the list is not exhaustive — CCP 581(m): the section "shall not be deemed to be an exclusive enumeration of the court's power to dismiss."

Delay dismissals

Two separate schemes sit behind CCP 581(b)(4).

Mandatory — the five-year rule. CCP 583.310: "An action shall be brought to trial within five years after the action is commenced against the defendant." CCP 583.360 makes dismissal mandatory if it is not, "on the court's own motion or on motion of the defendant, after notice," and the requirements "are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute."

CCP 583.340 excludes from that computation any period during which the court's jurisdiction to try the action was suspended, prosecution or trial was stayed or enjoined, or bringing the action to trial was "impossible, impracticable, or futile."

The separate guide on the California five-year rule covers this in full.

Discretionary — CCP 583.410: the court "may in its discretion" dismiss for delay in prosecution, on its own motion or on the defendant's, if that appears appropriate.

But CCP 583.420(a) sets thresholds. The court may not dismiss under this article unless:

• service was not made within two years after commencement against that defendant; or
• the action was not brought to trial within three years of commencement (or two, where the Judicial Council has so prescribed for that court); or
• a new trial was granted and the action was not again brought to trial within the times the section sets.

Making the dismissal effective

CCP 581d does two things that matter for what comes next:

A written dismissal of an action shall be entered in the clerk's register and is effective for all purposes when so entered. All dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action, and those orders when so filed shall constitute judgments and be effective for all purposes.

Two consequences. A party's dismissal takes effect on entry in the register, not on filing the request. And a court-ordered dismissal is a judgment — which is what makes it appealable and what starts post-judgment clocks.

Enforcing a settlement: CCP 664.6

The problem CCP 664.6 solves is simple to state. Once the case is dismissed, the court has nothing before it. If the defendant then stops paying, the plaintiff's remedy would be a new lawsuit for breach of the settlement agreement — years of work to enforce the end of the last case.

CCP 664.6 lets the court keep hold of the case instead. The section was rewritten operative January 1, 2025, and the current version is considerably more useful than what it replaced.

The core provision

CCP 664.6(a):

If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If the parties to the settlement agreement or their counsel stipulate in writing or orally before the court, the court may dismiss the case as to the settling parties without prejudice and retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.

Two distinct remedies:

1. Judgment on the settlement terms, on motion — no new action required.
2. Dismissal without prejudice with retained jurisdiction to enforce until full performance.

The second is the one to ask for in any settlement paid over time. It is not automatic. The parties or their counsel must stipulate to it, in writing or orally before the court.

Who can sign

CCP 664.6(b) defines when "a writing is signed by a party":

(1) The party. (2) An attorney who represents the party. (3) If an insurer is defending and indemnifying a party to the action, an agent who is authorized in writing by the insurer to sign on the party's behalf. This paragraph does not apply if the party whom the insurer is defending would be liable under the terms of the settlement for any amount above the policy limits.

Counsel's signature now suffices. That is the most consequential part of the 2025 rewrite, and it removes the trap of a mediated settlement signed by lawyers and unenforceable under this section for want of client signatures.

With two guardrails. CCP 664.6(c): paragraphs (2) and (3) do not apply in a civil harassment action, an action under the Family Code, an action under the Probate Code, or a matter adjudicated in juvenile or dependency court. In those, the party signs.

And CCP 664.6(d): an attorney who signs on a party's behalf without the party's express authorization "shall, absent good cause, be subject to professional discipline," in addition to any civil remedies.

Read (b), (c) and (d) together and the design is clear. Attorney signatures are made effective, and the check against misuse is discipline rather than unenforceability.

The court can start the process itself

CCP 664.6(e)(1): where a party seeking affirmative relief has filed a notice of conditional settlement, the court may, on its own motion and without any stipulation, set an order to show cause why it should not dismiss the entire action without prejudice and retain jurisdiction to enforce the settlement.

Subdivision (e)(2) excludes actions under the permissive-joinder provisions beginning at CCP 378 and PAGA actions under Labor Code section 2698.

If an OSC arrives after your conditional settlement notice, this is why.

What you can still file afterwards

CCP 664.6(f) is the part that makes retained jurisdiction work in practice. After judgment or dismissal without prejudice under the section:

(1) A party may file a motion or other document pertaining to the settlement, including an application for determination of good faith settlement, a motion for the reduction or determination of a lien, a petition related to the compromise of the claim of a minor or person with a disability, or, if the terms of a settlement are not performed, a motion based upon such terms. Responsive filings and related documents may also be filed. (2) The court shall exercise its retained jurisdiction if a party files a notice that a written settlement agreement required of all parties was not signed by all parties. (3) A party who has paid a first appearance fee shall not be assessed a first appearance fee again for filing a motion, notice or other document pertaining to the settlement after entry of judgment or dismissal without prejudice. (4) The clerk of the court shall accept any motion, notice, or other document properly filed by a party after entry of judgment or dismissal without prejudice.

Paragraph (2) is mandatory — "shall exercise." Paragraphs (3) and (4) exist because parties were being charged fresh appearance fees and having filings rejected by clerks in a closed case.

And CCP 664.6(g): nothing precludes a party from filing a request for dismissal with prejudice after the court has dismissed without prejudice under the section. That is the closing step once the settlement is fully performed.

The cost consequence of a dismissal

CCP 1032(a)(4) defines "prevailing party" to include "a defendant in whose favor a dismissal is entered." And CCP 1032(b): "Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs."

A plaintiff who dismisses voluntarily therefore hands the defendant prevailing-party status and a costs claim as of right. CCP 581(b)(1) says as much in its closing words — "upon payment of the costs, if any."

What those costs are — CCP 1033.5(a): filing, motion and jury fees; deposition taking, recording and transcription, plus interpreter fees and travel; service of process; attachment expenses; surety bond premiums; ordinary witness fees; court-ordered expert fees; court-ordered transcripts; attorney's fees where authorized by contract, statute or law; court reporter fees; models and exhibit enlargements where reasonably helpful to the trier of fact; and e-filing fees where the court requires e-filing.

What they are not — subdivision (b): fees of experts not ordered by the court; investigation expenses in preparing for trial; postage, telephone and photocopying other than exhibits; juror investigation and voir dire preparation; and transcripts not ordered by the court.

Subdivision (c) adds the tests: costs are allowable if incurred whether or not paid, must be reasonably necessary to the conduct of the litigation rather than merely convenient, and must be reasonable in amount.

Any settlement should therefore say who bears costs. Silence leaves CCP 1032(b) operating.

How California compares

A short checklist

Dismissing

1. Check whether trial has actually commenced as CCP 581(a)(6) defines it. That is the line between choosing your prejudice and taking it with.
2. Check for a cross-complaint seeking affirmative relief. CCP 581(i) blocks the unilateral route.
3. Expect a costs bill. A dismissed defendant is a prevailing party as of right.
4. If a demurrer was sustained without leave, move for dismissal. It does not happen on its own.
5. Confirm entry. A dismissal is effective when entered in the clerk's register; a court-ordered dismissal must be a signed written order, and it is a judgment.

Settling

1. Decide early whether you need retained jurisdiction. Any settlement performed over time does.
2. Ask for it expressly. CCP 664.6(a) requires a stipulation, in writing or orally before the court — it is not implied by a dismissal.
3. Get the signatures right. Counsel's signature works under CCP 664.6(b)(2) — except in civil harassment, Family Code, Probate Code, juvenile and dependency matters.
4. If you sign for a client, have express authorization. CCP 664.6(d) attaches professional discipline.
5. If a conditional settlement notice is on file, expect an OSC under CCP 664.6(e).
6. On default, file a motion in the old case — CCP 664.6(f)(1) permits it, the clerk must accept it, and there is no second appearance fee.
7. Dismiss with prejudice once performance is complete, as CCP 664.6(g) allows.
8. Address costs in the settlement. CCP 1032(b) runs by default.

Where these sections live

• CCP 581 — Dismissal of actions
• CCP 581d — Entry and effect of a dismissal
• CCP 583.310 — Five years to bring an action to trial
• CCP 583.340 — Time excluded from the computation
• CCP 583.360 — Mandatory dismissal
• CCP 583.410 — Discretionary dismissal for delay
• CCP 583.420 — Conditions required for a delay dismissal
• CCP 664 — Entry of judgment
• CCP 664.6 — Judgment on a settlement; retained jurisdiction
• CCP 1032 — Prevailing party costs
• CCP 1033.5 — Items allowable as costs

This page explains what the Code says. It isn't legal advice, and Judicial Council forms and Rules of Court implementing CCP 664.6 are outside what this site reproduces.