Associated Convalescent Enterprises v. Carl Marks & Co.

Action on a promissory note for unpaid principal ($1,040,000), for accrued interest thereon, for attorney’s fees, for foreclosure of the security for the note, for declaratory and equitable relief, for damages for fraud, and for other related relief. Demurrers were sustained to eight of the eleven causes of action. Plaintiff then filed an amended complaint, again setting forth 11 causes of action. Before defendants filed any pleadings thereto, the action was dismissed without prejudice at the request of plaintiff and without notice to defendants. (Code Civ. Proc., § 581, subd. 1.) Defendants thereupon moved for judgment for costs of suit (Code Civ. Proc., § 1032, subd. (a)) and for attorney’s fees. (Civ. Code, § 1717.) The motion was granted as to costs of suit, but denied as to attorney’s fees on the ground that defendants were not prevailing parties “in whose favor a final judgment is rendered,” as required by the last sentence of section 1717, Civil Code. Defendants thereupon submitted a proposed judgment; the court refused to sign the judgment, stating that the minute order was fully dispositive of the matter and that there was no requirement for signing and filing a…