Rosen

Is a defendant who prevails on a motion for judgment on the pleadings as to contractual causes of action, but remains as a defendant on tort counts, entitled to attorney fees pursuant to Civil Code section 1717 when the plaintiff subsequently voluntarily dismisses the defendant as to the “entire action”? Although we have not been cited to, nor independently discovered, authority directly on point, we conclude he is not.

I

Louis Rosen was given a right of first refusal in his lease on certain property. The lessors sold the demised property and an adjacent parcel to a joint venture, which in turn agreed to sell the adjacent parcel to The Robert P. Warmington Company (Warmington).

In March 1984, Rosen filed a complaint for specific performance, declaratory relief, breach of contract, and a variety of tort causes of action including interference with business advantage; all were premised on an alleged failure to allow him a right of first refusal on both parcels. He appended a demand for attorney fees pursuant to the lease agreement.

In July 1985, Warmington noticed its motion for judgment on the pleadings and dismissal of the first cause of action. Meanwhile, Rosen…