Filing Amended Cross-Complaint Deleting Contract Cross-Claim Was Tantamount To A “Dismissal.”
Although the procedural context was somewhat sui generis, a cross-complainant’s abandonment of a contract claim by filing an amended cross-complaint was tantamount to a dismissal so that no Civil Code section 1717 fees were recoverable, per the Santisas [one of our Leading Cases] rule.
The trial judge in Samax Development, LLC v. Century Community Lending Co., LLC, Case No. B257652 (2d Dist., Div. 7 Feb. 16, 2016) (unpublished) did award prevailing cross-defendants apportioned attorney’s fees under Civil Code section 1717 of $213,688 (out of fees of $1,220,545) based upon loan documents with fees clauses after a CCP § 638 adverse ruling on the cross-complaint against a cross-complainant for the period of time between filing of the original cross-complaint and the filing of the amended cross-complaint. The appellate court came to the rescue by reversing the fee award. The reason? The amendatory cross-complaint superseded the original cross-complaint such that it was tantamount to a dismissal, with “no reason to require [nonprevailing cross-complainant] to file a formal request for dismissal of his breach of contract cause of action after withdrawing it by amendment.” (Slip Op., p. 26.)