Case Proceeded to a Determinative Stage, So Fees Were Recoverable In Order to Prevent Procedural Gamesmanship.
The problem here was that the demurrer without leave ruling was a “determinative adjudication” that could not be undone by a dismissal, whether with or without prejudice. (Goldtree v. Spreckels, 135 Cal. 666, 672-673 (1902); Wells v. Marina City Properties, Inc., 29 Cal.3d 781, 789 (1981); Vanderkous v. Conley, 188 Cal.App.4th 111, 114-115, 117 (2010).) Fee award goes to the Borrower in this one.
Bank loses a demurrer without leave to amend against borrower based on anti-deficiency prohibitions. Borrower then moves to recover attorney’s fees based on contractual fee clauses, with Bank responding by dismissing the action with prejudice. Ah, ha, cries Bank, you–the Borrower–cannot prevail based on the dismissal. The trial court did not buy it awarding Borrower attorney’s fees of $8,400 and $534.72 in costs.
On appeal by Bank, neither did the appellate court when sustaining the fee/costs award in Bank of America, N.A. v. Mitchell, Case No. B233924 (2d Dist., Div. 4 Apr. 10, 2012) (certified for publication).
