The only reasonable interpretation of the parties intent in including paragraph 6 in the Release is that the parties intended that the Release itself would not preclude McDowell from pursuing her own action arising out of the accident, not that Mercier would have no right to defend against it. We also find Manning v. Wymer (1969) 273 Cal.App.2d 519 (Manning), on which McDowell principally relies, inapposite. In Manning, Wymer and Manning each filed suit claiming damages for personal injuries as the result of the other's negligent driving after their cars collided.
These issues cannot be relitigated by the Russells. We disagree with the BAP that Manning v. Wymer, 78 Cal.Rptr. 600 (Ct.App. 1969), mandates a different result. In Manning, the parties to a stipulated judgment agreed that the judgment would not have preclusive effect to a reserved cross-claim.
A voluntary dismissal "with prejudice" has the same effect as a common law retraxit -- it is equivalent to a verdict and judgment on the merits in favor of the opponent. (Manning v. Wymer (1969) 273 Cal.App.2d 519, 525 (Manning).) "In common law, a retraxit was 'a voluntary renunciation by plaintiff in open court of his suit, and cause thereof, and by it plaintiff forever loses his action.' [Citations.]
We have no quarrel with Travelers' proposition that parties may by agreement limit the legal effect of a dismissal with prejudice so that it would not constitute a retraxit and affect their rights in a later pending action. ( American Bankers Ins. Co. v. Avco-Lycoming Division (1979) 97 Cal.App.3d 732, 737 [ 159 Cal.Rptr. 70]; Manning v. Wymer (1969) 273 Cal.App.2d 519, 526 [ 78 Cal.Rptr. 600].) But the settlement agreement between RAS and Alpha here was not so broadly worded as to permit RAS to "present [its] case" including its defenses.
( Lareau v. Southern Pac. Transportation Co. (1975) 44 Cal.App.3d 783, 786 [ 118 Cal.Rptr. 837].) The parties to a settlement may, by their agreement, limit the application of even a dismissal with prejudice. ( Manning v. Wymer (1969) 273 Cal.App.2d 519, 527 [ 78 Cal.Rptr. 600].) On the record before us, it appears that Avco is not a "settling tortfeasor" as discussed in AMA (20 Cal.3d at pp. 603-604).
( Channell v. Anthony, 58 Cal.App.3d 290, 302 [ 129 Cal.Rptr. 704].) Being mindful of the policy of the law that cases be tried on their merits ( Manning v. Wymer, 273 Cal.App.2d 519, 528 [ 78 Cal.Rptr. 600]), we shall deem the appeal in the instant case to be from the order of dismissal filed August 11, 1976. (3) Defendant contends that plaintiff could not have appealed from the order of dismissal since his notice of appeal was not filed until 63 days after defendant notified plaintiff of the court's ruling citing rule 2(a), California Rules of Court.
The BAP reversed reasoning that litigants always can agree to limit or negate the preclusive effect of a judgment when it is the result of consensual resolution of the action. See Russell v. First Nat'l Bank (In re Russell), 166 B.R. 901, 905 (9th Cir. BAP 1994) (citing Manning v. Wymer, 273 Cal.App. 2d 519, 526-27 (1969)), rev'd, 76 F.3d 242 (9th Cir. 1996). Because the stipulated judgment specifically excluded the Russells, the BAP concluded that they were not precluded from bringing their subsequent civil rights action.
The parties to a judgment can agree that it will not have a preclusive effect on a separate lawsuit. Manning v. Wymer, 78 Cal.Rptr. 600, 605, 273 Cal.App.2d 519 (Cal.App. 1969). Although the debtors could have been more precise in reserving their cross-claim against FNB, the judgment is clear that it does not determine the debtors' liability on the underlying notes.
Again, all true. Of course, if Vasquez files an action against Michael's estate, Sharon as the administrator may be able to argue such an action is barred by claim or issue preclusion. (See Legendary Investors Group No. 1, LLC v. Niemann (2014) 224 Cal.App.4th 1407, 1411 ["[r]es judicata and collateral estoppel do generally preclude relitigating the same claims and issues after a dismissal with prejudice," although the parties in a settlement agreement may "'limit the legal effect of a dismissal with prejudice so that it would not constitute a retraxit and affect their rights in a later pending action'"]; Estate of Redfield (2011) 193 Cal.App.4th 1526, 1533 [a "dismissal with prejudice following a settlement constitutes a final judgment on the merits" and "'is determinative of the issues in the action and precludes the dismissing party from litigating those issues again'"]; Manning v. Wymer (1969) 273 Cal.App.2d 519, 525 [a dismissal with prejudice has the same effect as a common law retraxit and is equivalent to a verdict and judgment on the merits in favor of the defendant].) Sharon may also be able to argue Vasquez's claims against Michael's estate are barred by an applicable statute of limitations.
However, “parties may by agreement limit the legal effect of a dismissal with prejudice so that it would not constitute a retraxit and affect their rights in a later pending action.” (Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Casualty & Surety Co. of America (2005) 133 Cal.App.4th 1319, 1334, 35 Cal.Rptr.3d 496, citing American Bankers Ins. Co. v. Avco–Lycoming Division (1979) 97 Cal.App.3d 732, 737, 159 Cal.Rptr. 70; Manning v. Wymer (1969) 273 Cal.App.2d 519, 526, 78 Cal.Rptr. 600.) The mutual releases in the settlement agreement in the East West Bank case expressly exclude claims and defenses by and against appellant.