Plaintiff sued defendant for breach of contract, common counts, and fraud. The Ventura County Superior Court, California, denied defendant’s motion for dismissal with prejudice. The trial court also denied defendant’s motion for costs and attorney fees. Defendant appealed.
California Business Lawyer & Corporate Lawyer, Inc. understands CACI concealment
Overview
Defendant brought the motion to dismiss under Code Civ. Proc., § 581, subd. (f)(2), after a demurrer was sustained and plaintiff did not name defendant in the fourth amended complaint. Plaintiff argued that a dismissal without prejudice was proper because defendant could still be brought into the case on a theory not tested by demurrer. The court disagreed, noting that plaintiff was unable to amend the allegations of his complaint to satisfy the trial court that a cause of action was stated, even though he had been given several opportunities to amend his complaint. Plaintiff forfeited his right to dismiss without prejudice when he filed his fourth amended complaint and did not name defendant in that complaint. The failure to amend and state a cause of action against defendant was an admission that plaintiff had stated the case as strongly as he could and that there were no facts that could be alleged to cure the defect. Defendant was entitled to costs under Code Civ. Proc., § 1032, regardless of whether the dismissal was with or without prejudice. Defendant was also entitled to attorney fees under Civ. Code, § 1717, because he prevailed at the pleading stage.
Outcome
The order denying defendant’s motion for dismissal with prejudice and the order denying defendant’s motion for attorney fees and costs were reversed, and the matter was remanded with directions to enter a dismissal with prejudice in favor of defendant and to determine defendant’s costs and attorney fees.
