Case Drew Three Opinions, A Concurrence Finding 70% Defense Allocation For Tort Claims Was Reasonable, But With A Dissenting Justice Finding More Delineation Between Contract/Tort Claims Was In Order.
Santisas v. Goodin, 17 Cal.4th 599 (1998) [our Leading Case #6] was substantively upfront and center in National Merchants Assn. v. Commercial Bank of California, Case No. B341687 (2d Dist., Div. 8 Jan. 12, 2026) (unpublished), but the matter of how to allocate between contract and tort claims drew splintered opinions in this matter.
In National Merchants Assn., plaintiff voluntarily dismissed a case without prejudice on the edge of trial with a referee in a mixed contract/tort case. The referee awarded the defense the full request of $913,534.47 in attorney’s fees and $196,424.82 in costs after the defense indicated that it was only claiming 70% of fees for work on the tort claims—given that Santisas would not allow for recovery on the contract claims unless they were inextricably intertwined with the tort claims. The 2/8 DCA affirmed, in a 2-1 opinion, including a concurrence by Justice Wiley and a concurrence/dissent by Justice Viramontes.
The panel did not doubt that Santisas controlled, brushing aside appellant’s arguments that it somehow did not. The majority and Justice Wiley’s concurrence found that the defense 70% allocation to tort claims justified the fee award [Justice Wiley put it this way, “[t]ypically in life, a rough estimate is good enough”]. The dissenting justice saw things differently: he believed that there needed to be a more precise delineation of the contract and tort claims so that the allocation could be justified.