What is the test for dismissal of an action where there is a cross-complaint?

Probate Code section 1000 states in relevant part: Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions ... under Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice in, proceedings under this code.... Probate Code section 1000 does not create an independent right to a full trial whenever there is a contested issue of fact. The statute merely provides that the provisions of the Code of Civil Procedure apply when the Probate Code is silent as to a particular rule of procedure. (See Cal. Law Revision Com. com., 52 West's Ann. Prob.Code (2002) foll. 1000, p. 459; Merrill v. Finberg (1992) 4 Cal.App.4th 1443, 1447, 6 Cal.Rptr.2d 434 [statute creates rule of default adopting civil practice rules].)

Generally speaking, a pleader cannot remove from a case, after an adverse ruling, the issue that he or she tendered. ( Schnitman v. Husted (1929) 99 Cal.App. 666, 670, 279 P. 194.) Code of Civil Procedure section 581, subdivision (i) provides that no dismissal of an action may be made where affirmative relief has been sought by the cross-complaint of the defendant. The controlling factor is whether the other party has requested affirmative relief, regardless of the form of the pleading. Affirmative relief does not include mere defensive matter. Rather, it refers

[84 Cal.Rptr.3d 395]

to new matter that in effect amounts to a counterattack. The relief sought, if granted, operates not as a

[167 Cal.App.4th 743]