The Other Side Dismissed Its Lawsuit Without Prejudice. Is It Over, and Can We Recover Our Costs?

Last updated: November 2026. Reviewed by Pavel Kolmogorov, California business litigation attorney (State Bar No. 321018).

A voluntary dismissal without prejudice ends the lawsuit but not the claim. The plaintiff may file again if the statute of limitations allows. Under California Code of Civil Procedure section 581, a plaintiff may dismiss this way at any time before trial actually begins. The defendant then ordinarily counts as a prevailing party and is entitled to costs under section 1032. Attorney fees are harder, because Civil Code section 1717 bars fees on contract claims after a voluntary dismissal. Kolmogorov Law, P.C. advises businesses on each end of a dismissal.

Call (909) 235-6116 or contact us online to discuss a dismissal that was just filed, or one you are weighing.

What section 581 lets a plaintiff do

A plaintiff may dismiss an action, with or without prejudice, by written request to the clerk or by request to the court at any time before the actual commencement of trial, on payment of the costs, if any. (Code Civ. Proc., § 581, subd. (b)(1).) The dismissal can cover the whole complaint, a single cause of action, or a single defendant. (Code Civ. Proc., § 581, subd. (c).) No motion is needed and the defendant's consent is not required.

Without prejudice, the claim survives the case. With prejudice, it does not: the California Supreme Court treats that dismissal as the equivalent of a final judgment on the merits, a point covered on our page about res judicata and collateral estoppel.

When the right to dismiss ends

The statute sets the line at the start of trial. Trial actually commences at the beginning of the opening statement or argument of any party. If there is no opening statement, it commences when the first witness is sworn or any evidence is introduced. (Code Civ. Proc., § 581, subd. (a)(6).) After that, a requested dismissal is with prejudice unless every affected party consents or the court finds good cause. (Code Civ. Proc., § 581, subd. (e).)

Courts have also cut the right off earlier than a literal trial. One Court of Appeal decision collected the cases into a two-part test. Under that test a dismissal is ineffective if it follows a public and formal indication by the trial court of the legal merits of the case, or a procedural default by the plaintiff that made dismissal inevitable. A publicly announced tentative ruling on a dispositive motion is an example of the first. A failure to oppose summary judgment on time is an example of the second. A hearing on possible sanctions that had not yet been decided was not enough. (Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187.) The test is that court's summary of earlier decisions, and a concurring justice in the case questioned it.

A plaintiff also cannot use this route to dismiss the action where a defendant's cross-complaint seeks affirmative relief. (Code Civ. Proc., § 581, subd. (i).) The cross-complaint remains to be decided.

Is it over? Refiling after a dismissal without prejudice

For now, yes. For good, not necessarily. Nothing in section 581 extends the statute of limitations, so the practical question is how much of the original period remains. A plaintiff with time left may be able to refile, in the same court or in another proper one. A plaintiff whose period has expired has usually given up the claim, whatever the dismissal form says. If the parties want the claim preserved while they talk, the dependable way is a written tolling agreement.

Take a distributor sued by a former supplier over unpaid invoices. The supplier dismisses without prejudice after a damaging deposition, with a year left on the limitations period. The distributor should keep its litigation hold in place, because the case may return in better shape.

Costs and attorney fees after a dismissal

Costs follow the dismissal. A prevailing party is entitled to costs as a matter of right, and the definition includes a defendant in whose favor a dismissal is entered. (Code Civ. Proc., § 1032, subds. (a)(4), (b).) The Supreme Court applied that rule to defendants whose plaintiffs had voluntarily dismissed. (Santisas v. Goodin (1998) 17 Cal.4th 599, 606.) A dismissal given in exchange for a settlement payment is different. The Supreme Court later held that it is not a dismissal in the defendant's favor, so the plaintiff is the prevailing party for costs unless the settlement provides otherwise. Our page on recoverable court costs lists what qualifies and how to claim it.

Attorney fees are a separate question with a split answer. Where a contract has a fee clause, section 1717 controls fees on the contract claims. It says that where an action has been voluntarily dismissed, or dismissed pursuant to a settlement, there is no prevailing party for purposes of that section. (Civ. Code, § 1717, subd. (b)(2).) In Santisas the Supreme Court held that this bars a defendant's fees for defending the contract claims, even when the contract would allow them. The bar stops there. Tort and other noncontract claims fall outside section 1717, and a fee clause worded broadly enough may still support fees for defending those. The court left open how to divide fees for work common to both. Our page on the attorney fees clause and Civil Code section 1717 covers the statute in full.

If your plaintiff just dismissed

Get the filed dismissal and read which parties and claims it covers, and whether it is with or without prejudice. Claim costs promptly. Have the fee clause and the complaint read side by side to see which causes of action sound in contract and which do not. Keep preserving evidence if the claim can still be refiled. Then consider whether you have claims of your own. Whether a dismissal can support a later claim against the plaintiff is covered on our page about malicious prosecution.

If you are the plaintiff thinking of dismissing

Check four things first: the limitations date, the costs you will owe, your exposure to fees on any noncontract claims, and whether a ruling or a missed deadline has already closed the window. If the dismissal is part of a settlement, the agreement should say who bears fees and costs, because section 1717 will not supply a prevailing party. Our page on settlement agreements and releases covers the related terms.

What to bring to the first meeting

• The complaint, any cross-complaint, and the filed request for dismissal.
• The contract, with its attorney fees clause marked.
• A record of your defense costs to date, separated from attorney fees.
• Any pending motions and tentative rulings.
• The dates that matter for the statute of limitations.

Frequently asked questions

The other side dismissed its lawsuit against us without prejudice. Is it over, and can we recover our costs?

The case is over, but the claim may not be. In California a dismissal without prejudice under Code of Civil Procedure section 581 lets the plaintiff refile within the statute of limitations. You are a prevailing party for costs under section 1032, which includes a defendant in whose favor a dismissal is entered. Costs are not the same as attorney fees.

We spent heavily defending a contract case and the plaintiff dismissed a week before trial. Can we recover attorney fees under the fee clause?

Not on the contract claims. California Civil Code section 1717, subdivision (b)(2), provides that there is no prevailing party when an action is voluntarily dismissed, and the Supreme Court has enforced that bar even against a clear fee clause. Fees for defending tort or other noncontract claims may still be recoverable if the clause is worded broadly enough to reach them.

What does dismissal without prejudice mean?

It means the lawsuit ends without a decision on the merits and without barring a new one. In California the plaintiff may file the same claim again, so long as the statute of limitations has not expired. A dismissal with prejudice is the opposite: it is treated as a final judgment and the claim cannot be brought again.

Can a plaintiff dismiss after a tentative ruling on summary judgment?

It may be too late. California Code of Civil Procedure section 581 allows dismissal before the actual commencement of trial. One Court of Appeal has nonetheless summarized the cases as holding a dismissal ineffective when it follows a public, formal indication by the trial court of the merits. A publicly announced tentative ruling on a dispositive motion has been treated that way.

Can a case be refiled after a voluntary dismissal?

If the dismissal was without prejudice, yes, within the limitations period for the claim. California Code of Civil Procedure section 581 does not extend that period. If the dismissal was with prejudice, it operates as a final judgment on the merits, and the same cause of action cannot be brought again against the same party.

Talk to a California civil litigation attorney

If a case against your company was just dismissed, or you are deciding whether to dismiss your own, call (909) 235-6116 or contact us online. Kolmogorov Law, P.C. is a business litigation firm in Irvine, California. A senior attorney leads the matter, with an associate and a paralegal as the work requires. See also our civil litigation page.

This page provides general information about California law and is not legal advice. Outcomes depend on the contract, the timing of the dismissal, and the court.