In California, following a mistrial, the plaintiff/cross-complainant may revive a claim abandoned prior to the first trial

In California, a new trial leaves the parties in the same position as if the first trial had never taken place.  Thus, in Gordon v. Nissan Motor Co. (2009), 170 Cal. App. 4th 1103, plaintiff abandoned one of his claims prior to trial.  After a mistrial was granted, plaintiff sought to revive the previously abandoned claim and assert it in the second trial.  The Superior Court ruled that plaintiff could not revive the abandoned claim.  On appeal from a judgment for the defendant in the second trial, the Court of Appeal reversed, holding that the error was reversible error per se, and held that an order granting a new trial leaves the parties in the same posture as if the first trial had never taken place.  Thus, abandonment of a claim in the first trial does not bind the plaintiff in the second trial.