Refiling The Case In A Different Jurisdiction Was The Key Distinction.
In DisputeSuite.com, LLC v. Scoreinc.com, Case No. S226652 (Cal. Supreme Court Apr. 6, 2017) (published), our state supreme court faced the issue of whether fee recovery under Civil Code section 1717 was properly denied against a litigant obtaining a dismissal of an action by a California court based on a forum selection clause. The high court, in a unanimous decision authored by Justice Werdegar, said "no," but based on the fact that the litigant indeed did file an action is a different jurisdiction such that the dispute had not been definitively resolved in anyone's favor. The prevailing party determination was keyed to the fact the action was refiled in a different jurisdiction.