Cano

Ronald Glover (defendant) appeals from an order denying his motion for dismissal with prejudice. (Code Civ. Proc., §§ 581d, 581, subd. (f)(2).) He brought the motion after a demurrer was sustained and Luis Cano (plaintiff) did not name him in the fourth amended complaint. The trial court dismissed the action as to defendant, but without prejudice. The court also denied his motion for costs and attorney’s fees on the ground that the motions were “premature.” We reverse.

Procedural History

On July 25, 2004, plaintiff sued William Tucker and defendant for breach of contract, common counts, and fraud after investing in L & H Concrete, Inc. Plaintiff claimed that Tucker and defendant breached a June 2001 contract to share profits.

As to plaintiff’s first, second and third amended complaints on the contract and common counts causes of action, the trial court sustained demurrers with leave to amend. Defendant’s demurrer to a cause of action for breach of fiduciary duty was also sustained with leave to amend.

Plaintiff filed a fourth amended complaint but did not name defendant. Defendant moved for dismissal and requested costs and attorney fees. (§581, subd. (f)(2).)…