Absence of Contract Did Not Defeat Fee Recovery.
Defendants LLC members nonsuited a case against plaintiff where one of the causes of action was a contract with a fees clause. The trial court denied a request for fees, with defendants appealing.
They gained a reversal in Choi v. Katofsky, Case No. B232580 (2d Dist., Div. 5 May 9, 2012) (unpublished).
The reason was simple and based upon Civil Code section 1717. Where the defense defeats a contract claim with a fees clause on the ground it is in nonexistent, that allows the prevailing defendants to recover fees. (Rainier National Bank v. Bodily, 232 Cal.App.3d 83, 86 (1991).) That led to a remand so the defense could seek to recover fees for prevailing below.