DISPUTESUITE.COM v. SCOREINC.COM

Respondent’s Answer to Petition for Review

Cal.June 18, 2015

Case No. $226652 JUN 18 2015 IN THE Frank A. MeGuire Clerk SUPREME COURT OF Deputy THE STATE OF CALIFORNIA Disputesuite.com, LLC., Plaintiff and Respondent, Vv. Scoreinc.comet al., Defendants and Appellants. After a Decision of the Court of Appeal Second Appellate District, Division Two Case No. B248692 Los Angeles County Superior Court, Case No. BC489083 Honorable James Chalfant ANSWERTO PETITION FOR REVIEW JamesJ. Little, (SBN 123373) J.J. LITTLE & ASSOCIATES,P.C. Fisherman’s Village 13763 Fiji Way, Suite EU-4 Marina del Rey, California 90292 Telephone: (310) 622-9527 Facsimile: (310) 477 9527 Attorneys for Plaintiff/Respondent Disputesuite.com, LLC. Case No. S226652 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA Disputesuite.com, LLC., Plaintiff and Respondent, Vv. Scoreinc.com et al., Defendants and Appellants. After a Decision of the Court of Appeal Second Appellate District, Division Two Case No. B248692 Los Angeles County Superior Court, Case No. BC489083 Honorable James Chalfant ANSWERTO PETITION FOR REVIEW James J. Little, (SBN 123373) J.J. LITTLE & ASSOCIATES,P.C. Fisherman’s Village 13763 Fiji Way, Suite EU-4 Marina del Rey, California 90292 Telephone: (310) 622-9527 Facsimile: (310) 477 9527 Attorneys for Plaintiff/Respondent Disputesuite.com, LLC. Table of Contents I. INTRODUCTION AND STATEMENTOFISSUES..........ccceesesceseeeseeees 1 II. STATEMENTOF THE FACTS...0....ceeccccccscesscsseesseeseceeeesesessesaesaeeeseesseeses 1 I]. THERE ARE NO GROUNDSFOR REVIEW.........cccccccssessesseteetseseesseseaes 2 A. Section 1717 and Decades of Case Law Already Provide Clear and Consistent Rules in this Area...eee ee eeeseseesseseeceseeseceeseeeeseeeesecesnesaeesseeseeenes 2 1. For Decades, California State Courts Have Consistently Applied Section L717. cece ecceeceeescessesesssseeeesscasssesseeecsesecesasscsecseesaesaeeaessevseesaeeaseesaeeaeeaetseensesae 3 2. Federal Courts Have Consistently Applied Section 1717. ........cccecceseeees 6 The Court of Appeal in This Case Correctly Applied Section 1717.......... 8 4. Review of the Court of Appeal’s Decision is Unwarranted and UMNeCESSALY. 20... eeseeesceeseeeeeeceseeeeeesnseseeseseneeceecsneecaeeceneesseseeseseensteaseeeesaes 9 B. PNECand Profit Concepts are Distinguishable Outlier Cases................... 10 C. Policy Arguments Do Not Support Score’s Petition. ..........cceceeesesseeeeees 12 TV. CONCLUSION(00eeeeseseeeeseceeeeeesesseseesseeseesseeesecsneesseseeseesaesassseeeneees 13 Table of Authorities Cases AdvanceFin. Res., Inc. v. Cottage Health Sys., Inc. (D. Or., Sep.1, 2009) 2009 WL 2871139...eeceeesseceeecesseeeesenseseseesessseessescsacecseesesseesseesseeseeeanees 8 Coward y. JP Morgan Chase Bank (E.D.Cal., Feb. 27, 2014) 2014 WL 813886... ceceesseeeesesereceseeseeescesseeesaesseensesesessceceeessecsseeseesseaesaeseeseesaeeeass 12 Delano Farms Co. v. California Table Grape Com’n (E.D. Cal. 2009) 623 F.Supp.2d 1144 (Fed. Cir. 2011) 655 F.3d 1337 weescccescseseseeteeeeeees 12 Elmsv. Builders Disbursements, Inc. (1991) 232 Cal.App.3d 671........ 10, 11 Estate ofDrummond(2007) 149 CalApp.4th 46.......ccccccssessscesseeeeeeees 4,10 Finley v. Superior Court (2000) 80 Cal.App.4th 1152.0... cceesesesseeeseseeees 6 Frog Creek Partners, LLC v. Vance Brown,Inc. (2012) 206 Cal.App.4th SS wieccecccssccesessseecssessecsseesaeansceeseeesesseesesseecseeeetaeeeeseaseesaeseeeasaeensenneas 5,9, 12 HSBC Bank USA v. DJR Properties, Inc. (E.D. Cal., Apr. 13, 2011) 2011 WL 1404899oeceseseeceseeceeenseeseseeeseseessecsaeseseeesessseeaesesesseneeees 8, 12 Hsu v. Abbara (1995) 9 Cal4th 863 ......ccccsessessssecssessscesessesseseeessssssseeseeseees 4 Idea Place Corp. v. Fried (N.D. Cal. 2005) 390 F.Supp.2d 903...........:c00 7 ii Kandy Kiss ofCalifornia, Inc. v. Tex-Ellent, Inc. (2012) 209 Cal.App.4th O04eecesceceeecseeeesssesseseseessersscesseesnecsaeseseneseeseesaesseseseeeeeaeseeeeesesesaneaesaeeees 11 Laurel Village Bakery, LLC v. Global Payments Direct, Inc. (N.D. Cal., Dec. 14, 2007) 2007 WL 4410396... eeeceeceeseeeeeeseterensessesseseesneaeseseenees 7 Maynard v. BTI Group, Inc. (2013) 216 Cal.App.4th 984.00... ceecceceeeseeees 13 N.R. v. San Ramon Valley Unified Sch. Dist., (N.D. Cal., July 5, 2006) 2006 WL 1867682... ceccccscssesesssccseeceeetseeeseesessceseeseceaceseseesseeeetessesssessesenseneenees 8 Otay River Constructors v. San Diego Expressway (2008) 158 Cal.App.4th 196 aesecscesssescessecscceseesecseseeaecssecseeeseessesececsesssesesenessuesaeesacsaseaessueaeensesseeaes 10, 11 People v. Pieters (1991) 52 Cal.3d 894 oo. cccccccsssesssessecsessssssessessssessteeneees 12 PNECCorp. v. Meyer (2010) 190 Cal.App.4th 66........::cccscsscscsseeesseees 10, 11 Presley ofSouthern California v. Whelan (1983) 146 Cal.App.3d 959, 196 CalRptr. 1, ccc eeccescessesesseessceesseeeeeceecessesessessesseesseeeseeeseesseeeseeeseeeateseesaee 3,4 Profit Concepts Management, Inc. v. Griffith (2008) 162 Cal.App.4th 95010, 11 Roberts v. Packard, Packard & Johnson (2013) 217 Cal.App.4th 822.....5, 6 Russell City Energy Co., LLC v. City ofHayward (N.D.Cal., Feb. 17, 2015) 2015 WL 983858... ccscscccssccsscesseesssessssscsessessneesseesseessssesessssssecaeeneesseeenues 7 Smith vy. State Bar (1985) 38 Cal.3d 525 vcccccsscccssccsssecsssesseessecesecsesesseeees 2 Turnerv. Schultz (2009) 175 Cal.App.4th 974........ccccccccssssessseessessseesees 10, 11 lil U.S. ex rel. Cericola v. Federal Nat. Mortg. Assoc. (C.D. Cal. 2007) 529 F.Supp.2d 1139 occcscceseccsneessesseessseseeseeeseeesesseseaeeeeeaeeerseeeesseaceeeanes 12 Vistan Corp. v. Fadei, USA, Inc. (N.D. Cal., Apr. 2, 2013) 2013 WL 1345023 oo..eeeceeccesceseeececeeeeseeececseeeseesseseesecacseecseteaeeaeeaeeaeceaeenecaesaessasaeeensesas 6, 7 Statutes California Civil Code § 1717... ccc eecessssstsseccecetecseesesessceesseseeseesseaes passim California Civil Code § 1717(a) .....ccccccscssecsstccesscessesssessssessseeeeeesseees 3, 6, 11 California Civil Code § 171 7(D)(1) eee ceeeececeececeeereeseceteeeeeeeeeseeeeeneesenes 3,5 Rules California Rules of Court, Rule 8.500(C)(2).......::e:cseceesceeseceeeeteeseeesseesseeesenees 2 iv ANSWER TO PETITION FOR REVIEW I. INTRODUCTION AND STATEMENT OF ISSUES The central question posed by Defendants and Petitioner Scoreinc.com, Joel S. Pate, and Joshua Carmona(“Score”) is “Whether contractual attorneys’ fees may be denied to a successful party who defeats a California lawsuit based on the mere fact that litigation may proceedin a different jurisdiction.” (Petition, at 1.) This question has already been answered affirmatively by countless California courts for over 30 years. Indeed, contrary to Score’s argument, there are not “two conflicting views as to whether a party may obtain contractual attorneys’ fees in the absenceofa final determination of the merits of the case.” (Petition, at 1.) Rather, the plain language of Civil Code section 1717! and an overwhelming numberof cases correctly interpreting that statute require a final determination of the merits of a case before a court may award contractual attorneys’ fees to the prevailing party. The Court of Appealin this case simply applied section 1717 and decades- long precedent to the facts of the case and correctly determined that merely successfully arguing that a forum selection clause required a transfer of the case to Florida did not render Score “the prevailing party” in the action as a whole. This ruling is consistent with scores of other California cases that hold that an interim procedural victory does not render a party “the prevailing party” under section 1717; that determination must await the final outcome of the contract claims in the case. Thefact that there are two distinguishable and outlying cases which depart from this long-standing rule does not warrant a grant of review by this Court. Il. STATEMENT OF THE FACTS For purposes of this answerto the petition for review only, Plaintiff and Respondent DisputeSuite.com, LLC (“DisputeSuite”) accepts the Court of ' All references are to the California Civil Code unless otherwisestated. 1 Appeal’s recitation of the facts and procedural backgroundofthis case. (Cal. Rule of Ct. 8.500(c)(2).) To the extent the petition, however, suggests that the only connection the case had with California was that DisputeSuite’s counsel practices here (petition, at 4), this statement should be disregarded as unsupported by the record. (Smith v. State Bar (1985) 38 Cal.3d 525, 541.) To wit, the record demonstrates that there was a mandatory California forum selection clause in the End User Agreement, and that Score hadalso orally agreed to DisputeSuite’s CEO to be boundto the California forum selection clause. (3 AA 609-610). Ill. THERE ARE NO GROUNDS FOR REVIEW A. Section 1717 and Decades of Case Law Already Provide Clear and Consistent Rules in this Area. Score contends that review is necessary because “[t]here are two conflicting views as to whether a party may obtain contractual attorneys’ fees in the absence of a final determination of the merits of the case.” (Petition, at 1.) This is notso. Section 1717 and decades of California case law, including from this Court and federal courts applying California law, have consistently provided that a party cannot obtain contractual attorneys’ fees until after a final determination on the merits of the contract claims in the case. In other words, there is clear and consistent precedent establishing that only after a final resolution ofall contract claims in the action can a court determine a prevailing party for purposes of awarding attorneys’ fees pursuant to section 1717. First, this rule is set forth in the plain language of section 1717, which states in part, In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awardedeither to one of the parties or to the prevailing party, then the party whois determinedto be the party prevailing on the contract, whether heorsheis the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to othercosts.” (Civ. Code § 1717(a) [emphasis added].) Further, The court, upon notice and motion by a party, shall determine whois the party prevailing on the contract for purposesofthis section, whetheror not the suit proceedsto final judgment. Exceptas provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determinethat there is no party prevailing on the contract for purposes ofthis section. (Civ. Code § 1717(b)(1) [emphasis added].) For over 30 years, courts have consistently held, based on this statutory language, that a prevailing party determination cannot be made based on an interim procedural victory, but must await a final outcome on the merits of the action. The Court of Appeal simply followed this statutory language and precedentin holding that Score could not be awarded attorneys’ fees for succeeding in changing the forum whenthe parties’ contract claimsare still pending, yet to be resolved, in a Florida court. 1. For Decades, California State Courts Have Consistently Applied Section 1717. The Court of Appeal’s decision in this case is neither an outlier nora trail- blazer. Rather, the Court followed clear precedent from previous decisionsin this state over the past three decades. Forinstance, in Presley ofSouthern California v. Whelan (1983) 146 Cal.App.3d 959 [196 Cal.Rptr. 1, 3], the appellate court vacated a grant of summary judgment and remandedthe caseto the trial court for further proceedings. (/d. at 1.) Appellant sought attorneys’ fees for its appellate victory, pursuant to section 1717, arguing it was the prevailing party. The court disagreed. It held that the “winnerin the action . . . is yet to be determined. The reversal of the summary judgmentis merely an interim stage ofthe litigation. .. .” (Id. at 2 [emphasis added].) The court continued: The problem with allowing a plaintiff who has succeeded in having a summary judgmentagainst him reversed, but who ultimately loses the case, to collect the fees he incurred on the appealis the focus on 3 procedural victories during the courseoftrial rather than on thefinal disposition of the substantive issues. (Id. at 3.) Accordingly, as far back as 32 years ago, section 1717 wasinterpreted as disallowing a grant of contractual attorneys’ fees for a mere interim procedural victory—like a change in forum. In 1995, this Court, in Hsu v. Abbara (1995) 9 Cal.4th 863, validated that interpretation, holding that the meaning of section 1717 is clear—only after a final resolution of the contract claims in an action can a court determine whether party is a prevailing party for purposes of awarding contractual attorney fees. Specifically, this Court stated: Accordingly, we hold that in deciding whetherthere is a “party prevailing on the contract,” the trial court is to comparethe relief awarded on the contract claim or claims with the parties’ demands on those same claims andtheir litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources. The prevailing party determination is to be made only uponfinal resolution of the contract claims and only by “a comparison ofthe extent to which each party ha[s] succeeded and failed to succeed in its contentions.” [Citation.] (Id. at 876 [emphasis added].) Morerecent cases are in accord. In Estate ofDrummond (2007) 149 Cal.App.4th 46, an attorney filed a petition in probate court against his former clients seeking to recover fees. (Jd. at 49.) The clients, however, had already filed a suit against the attorney in civil court. U/d.) Thetrial court ruled that the attorney’s claim against the clients should have been made as a compulsory cross- claim in the clients’ civil case, and the probate case was dismissed. (/d.) When the attorney re-filed his claim as a cross-complaint in the clients’ civil court action, the clients movedto collect attorneys’ fees on the groundsthat they were the prevailing party pursuant to section 1717. Ud.) Thetrial court denied the motion for fees, and the clients appealed. (/d. at 50.) The appellate court held that the trial court had not abusedits discretion in denying fees. (/d. at 54.) Relying on Hsu, the court stated that “the prevailing 4 party determination must await the ‘final resolution of the contract claims’” and, therefore, “[i]t “necessarily follows that no fee award can be made before such a ‘final resolution.’” (Jd. at 51 [quoting Hsu, supra, 9 Cal.4th at 876].) The court further explainedthat “‘prevailing on the contract,’ [] implies a strategic victory at the end ofthe day, not a tactical victory in a preliminary engagement.” (/d. at 51.) A party does not prevail when they “have at no time wona victory ‘on the contract’” but instead “only succeeded at moving a determination on the merits from one forum to another.” (/d. at 52-53.) Indeed, to hold otherwise, as Score urges, would be contraryto the plain language of section 1717, which makesclear that there can only be one prevailing party—‘“the prevailing party”—on a contract. (Civ. Code § 1717(b)(1) [emphasis added].) Indeed, in Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 Cal.App.4th 515, the Court of Appeal again confirmedthat the clause “the party prevailing on the contract” reflects the Legislature’s intent that “in any given lawsuit there can only be one prevailing party on a single contract for the purposes of an entitlement to attorneys fees.” (/d. at 531.) Thus, the term “action on a contract” within the meaning of section 1717 “refers to the contract claims in the lawsuit as a whole.” (/d. at 539.) Thus, in Frog Creek Partners, although defendant successfully enforced an arbitration clause in the contract, defendant wasnotentitled to attorneys’ fees under section 1717 becauseit did not prevail on the merits of the contract claims overall in the action. (/d. at 546.) Roberts v. Packard, Packard & Johnson (2013) 217 Cal.App.4th 822 is also in accord. In Roberts, plaintiffs filed an action against their former attorneys for breach offiduciary duty, conversion, and declaratory relief. (/d. at 826.) The attorneys filed a successful petition to compel arbitration based on an arbitration provisionin the parties’ contingency fee agreement. (Jd. at 827.) Like Score does here, the attorneys argued that they were entitled to attorneys’ fees because they prevailed on a contractual provision—thearbitration clause. (/d. at 829.) Relying on the plain language of section 1717, which allowsfor attorneys’ fees to the 5 prevailing party “in any action on a contract,” the appellate court rejected the attorneys’ argument. (Civ. Code § 1717(a) [emphasis added].) The Court explained, “The commonunderstanding of an action to enforceis that it is a proceedinginitiated by the filing of a claim. Thus, an action not only encompasses the complaint but refers to the entirejudicialproceeding . . . and is generally considered synonymouswith suit. [Citation.]” (Roberts, supra, 217 Cal.App.4th at 832 [internal quotations omitted].) Further, “[p]rocedural steps taken during pendinglitigation are not an ‘action’ within the meaning ofsection 1717.” Ud.) Thus, the Roberts court concludedthat the attorneys’ petition to enforce the contractual arbitration provision “did not commence an ‘independent lawsuit’ or constitute a ‘distinct action’; it was part of the underlying proceeding.” (Id. at 834.) Because “[o]nly one side—plaintiffs or their former attorneys—can prevail in enforcing the contingency fee agreement. . . the determination of the prevailing parties must await the resolution ofplaintiffs’ causes of action by an arbitrator.” (Ud. at 843.) Accordingly, clear and consistent rules already exist in this area, contrary to Score’s contention. (Petition, at 2.) These rules unambiguously provide that a party cannot obtain contractual attorneys’ fees in the absenceofa final determination of the merits of the case. 2. Federal Courts Have Consistently Applied Section 1717. Federal courts applying California law havealso consistently applied section 1717 in the same manner. Federal courts “appear uniform in denying fees under Section 1717 where a non-merits decision results in dismissal of the contract claim.” (Vistan Corp. v. Fadei, USA, Inc. (N.D. Cal., Apr. 2, 2013) 2013 WL 1345023, at *3.)? In other words, like the decades of California state case law 2 Indeed, DisputeSuite did not find a single federal decision to the contrary, and Score does not cite to any contrary federal decisions. “Decisions of the federal courts interpreting California law, although not binding,. . . are persuasive.” (Finley v. Superior Court (2000) 80 Cal.App.4th 1152, 1160.) 6 discussed above, federal courts consistently interpret section 1717 as disallowing contractual attorneys’ fees to a party who merely obtains a procedural interim victory, as opposed to a victory on the merits of the contract claimsin the action as a whole. Forinstance, in Laurel Village Bakery, LLC v. Global Payments Direct, Inc. (N.D. Cal., Dec. 14, 2007) 2007 WL 4410396,in a case that mirrors this one, defendants secured a dismissal of the case after enforcing a forum selection clause in the contract. (/d. at *1.) Defendants then sought contractual attorneys’ fees under section 1717, which the magistrate denied. (/d.) On appeal to the district court, the court upheld the magistrate’s order, finding that defendants were not the “prevailing party” within the meaning of section 1717 “because no decision has been reached on the merits of Plaintiff's contract claims.” (/d. at *4.) Similarly, in Idea Place Corp. v. Fried (N.D. Cal. 2005) 390 F.Supp.2d 903, the court denied contractual attorneys’ fees to the party who had secured a dismissal for lack of subject matter jurisdiction because that interim victory meant plaintiff couldstill pursue its contract claims in state court. (/d. at 905.) Thus, the court concluded, “it remains to be seen whichentity is the ‘prevailing party’ on Plaintiff's contract action.” (/d.) The federal case law is overwhelmingly uniform on this matter. (See, e.g., Russell City Energy Co., LLC v. City ofHayward (N.D.Cal., Feb. 17, 2015) 2015 WL 983858, at *4 [denying contractual attorneys’ fees to party who wondismissal of claims for lack of subject matter jurisdiction, when breach of contract claims werestill pending in state court, because there had not yet been final resolution of the contract claim’s merits]; Vistan Corp., supra, 2013 WL 1345023, at *4 [denying contractual attorneys’ fees after case was dismissed for lack of federal jurisdiction because there was no determination of the contract claim’s merits]; HSBC Bank USA v. DJR Properties, Inc. (E.D. Cal., Apr. 13, 2011) 2011 WL 1404899, *2 [denying contractual attorneys’ fees after case was dismissed for lack of subject matter jurisdiction because there was no determination of the contract claim’s merits]; Advance Fin. Res., Inc. v. Cottage Health Sys., Inc. (D. Or., Sep.1, 2009) 2009 WL 2871139, at *2 [denying attorneys’ fees undersection 1717 after case was dismissed on jurisdictional grounds because there wasnotyet a final resolution of the underlying contract claim]; N.R. v. San RamonValley Unified Sch, Dist., (N.D. Cal., July 5, 2006) 2006 WL 1867682, *3 [denying contractual attorneys’ where plaintiffs breach of contract claims had been dismissed for lack of subject matter jurisdiction, noting that, “Plaintiffs remain free, after this Court’s decision, to pursue their breach of contract claims in state court.”].) 3. The Court ofAppeal in This Case Correctly Applied Section 1717. The Court of Appeal’s decision was therefore merely one more case in the long line of cases denying contractual attorneys’ fees to a party who secures an interim procedural victory as opposed to a victory after the final resolution of the contract claims. The Court of Appeal correctly upheld thetrial court’s denial of contractual attorneys’ fees to Score. By way of background,after thetrial court granted DisputeSuite a preliminary injunction, Score obtained a dismissal of the case based on a Florida forum-selection clause in one of the parties’ contracts.’ (Typed Opn., at 3.) DisputeSuite re-filed the case in Florida. (/d.) Score then sought attorneys’ fees in the amount of $84,640 on the groundthat they were the prevailing party, under section 1717, in connection with the motion to dismiss. Ud.) Thetrial court denied the award, and Score appealed. (/d.) The Court of Appeal found that Score’s position was “inconsistent with the plain language”of section 1717 that “‘the party prevailing on the contract shall be the party who recovereda greater relief in the action on the contract.’” (Typed 39 666Opn., at 8 [court’s emphasis].) “Action on the contract” “‘refers to the contract 3 DisputeSuite maintainedthat the California forum-selection clause in the End User Agreement governed. (Typed Opn., at 3.) 8 claimsin the lawsuit as a whole’, since a single action can involved multiple contract claims,like here.” (Id. [quoting Frog Creek Partners, supra, 206 Cal.App.4th at 539].) Under section 1717 “‘there can only be one prevailing party 399on a given contract in a given lawsuit.’” (Ud. [quoting Frog Creek Partners, supra, 206 Cal.App.4th at 543].) That determination can not be made until the final resolution of the contract claims in a Florida court, and therefore, the Court held that “it would be premature to makea prevailing party determination at such juncture.” (Jd. at 9; see also trial court’s finding at 6 AA 1376 [“This does not mean,of course, that [Score] may not recovertheir attorneys’ fees incurred in defending the California action should they prevail in the Florida lawsuit.”].) Like countless courts before it, the Court here reasoned that the Legislature, in enacting section 1717, surely did not intend the opposite result, which would result in “piecemeal attorney fee awards for each resolution of a contract clause.” (Typed Opn., at 8.) 4. Review ofthe Court ofAppeal’s Decision is Unwarranted and Unnecessary. Accordingly, the Court of Appeal engaged in a simple application of the facts to the language of section 1717, and concluded that Score was not a prevailing party in an action on the contract within the meaning ofthat statute. The Court’s decision wasin line with decadesof state and federal case law. The Court neither erred, nor departed from the long line of case law before it. Review of the Court’s decision is therefore unnecessary. Score is thus incorrect in claiming there is a “glaring need for clear and consistent rules in this area.” (Petition, at 2.) There already are clear and consistent rules in this area, rules that are set forth within the plain language of section 1717 and routinely applied by state and federal courts. Score is also incorrect in attempting to couch the Court of Appeal’s decision or Estate of Drummondas presenting a conflict or a split of authority. These cases are simply two in long line of cases uniformly and consistently applying section 1717.* Thus,to the extent Scoretries to frame the Court’s decision as “inviting non- California plaintiffs to file lawsuits here” or “effectively eliminat[ing] the concomitant fee exposure for plaintiffs in pursuing suchlitigation,” Score is wrong. The Court’s decision does not encourage such behavior any more than the Legislature’s decision to pass the current version of section 1717 did in 1987, or any more than the scores of courts who have consistently interpreted section 1717 in the past 30 years. B. PNECandProfit Concepts are Distinguishable Outlier Cases Petitioners argue that review should be granted because of two cases, Profit Concepts Management, Inc. v. Griffith (2008) 162 Cal.App.4th 950 and PNEC Corp. v. Meyer (2010) 190 Cal.App.4th 66. These cases are mere outliers from the overwhelming body ofcase law that interprets section 1717, distinguishable, and do not warrant a grant of review. In Profit Concepts, the court upheld an award ofattorneys’ fees to a party whoobtained a dismissal of the case due to lack of personal jurisdiction over the defendant. (162 Cal.App.4th at 955.) The court apparently failed to recognize that, as required by section 1717, a final determination as to the contract claims in the action had not yet been made. Rather, the court relied primarily on two cases * Although notraised in the petition for review, Score argued to the Court of Appealthat three other cases also supported an award of attorneys’ fees, Turner v. Schultz (2009) 175 Cal.App.4th 974, Otay River Constructors v. San Diego Expressway (2008) 158 Cal.App.4th 796, and Elms v. Builders Disbursements, Inc. (1991) 232 Cal.App.3d 671. Yet in each of these cases, where contractual attorneys’ fees had been awarded, there had beena final resolution of the contract claims in each of the complaints. (See Turner, supra, 175 Cal.App.4th at 983-984; Otay River Constructors, supra, 158 Cal.App.4th at 807; and Elms, supra, 232 Cal.App.3d at 675.) By contrast here, and like in the line of cases cited above, there has been nofinal resolution of the contract claims in DisputeSuite’s complaint. Those claims are pending in Florida. 10 from 1975 and 1976, over ten years before the Legislature amended section 1717 to its current form. (/d. at 954-955.) Indeed, the trial court in this case found the reasoning of Profit Concepts “unconvincing and superficial.” (6 AA 1374.) Twoyearslater, the court in PNEC madea similar ruling based primarily on the reasoning in Profit Concepts, as opposed to the analysis of the language in section 1717. The court also based its reasoning on a line ofcases that are clearly distinguishable (see footnote 4, supra), Turner, supra, 175 Cal.App.4th 974, Otay River Constructors, supra, 158 Cal.App.4th 796, and Elms, supra, 232 Cal.App.3d 671. To wit, in all three of those cases, a resolution of the underlying complaint, including the contract claims, had been reached. (See footnote 4, supra.) By contrast, in this case, the underlying contract claims contained within the complaint—those brought by DisputeSuite—arestill pending in Florida. Finally, the PNECcourt also acknowledgedthat“the language of the fee-shifting provision in the instant case differs from the contract provisions at issue in Profit Concepts and the other aforementioned cases.” (PNEC, supra, 190 Cal.App.4th at 72.) Perhaps this Court previously granted review of Kandy Kiss ofCalifornia, Inc. v. Tex-Ellent, Inc. (2012) 209 Cal.App.4th 604 (rev. granted January 16, 2013, S206354, rev. dismissed August 13, 2014) becauseit erroneously followed the reasoning ofPNEC and Profit Concepts. However, now that Kandy Kiss is depublished, per California Rules of Court, Rule 8.1105(e)(1), PNEC and Profit Concepts appear to be the only published California decisions applying section 1717 in a mannerdifferent from the three-decades long line of cases that have consistently applied that statute. Their existence does not warrant this Court’s time. As one court putit, “The fact that there is now an outlier case in an otherwise uniform body of case law does not transform an old issue into a ‘novel’ one. (Hannah v. Western Gateway Regional Recreation Park & Dist. (E.D. Cal., Sept. 25, 2007) 2007 WL 2795769, at *2.) Indeed,trial courts are routinely able to reject the application and reasoning of outlier cases as contrary to all persuasive authority. (See, e.g., Coward v. JP Morgan Chase Bank (E.D.Cal., Feb. 27, 2014) 11 2014 WL 813886, *4; Delano Farms Co. v. California Table Grape Com’n (E.D. Cal. 2009) 623 F.Supp.2d 1144, 1163, affd, (Fed. Cir. 2011) 655 F.3d 1337; HSBC Bank USA, supra, 2011 WL 1404899,at *2; U.S. ex rel. Cericola v. Federal Nat. Mortg. Assoc. (C.D. Cal. 2007) 529 F.Supp.2d 1139, 1150.) To the extenttrial courts find those cases unconvincing, they are free to reject their application, as the trial court did in this case. (Typed Opn., at 18 [“Thetrial court . . . reasonably declined Score’s invitation to follow two unpersuasive, outlier cases that are further distinguishable from the facts of this case.”].) C. Policy Arguments Do Not Support Score’s Petition. Reversing the current rule (as Score wants) would create a nightmare situation for courts. Allowing a party to obtain attorneys’ fees for interim procedural victories or for individual contract clauses would require trial courts to determine whichparties prevailed on each distinct contractual claim and make multiple fee awards accordingly. Score’s interpretation would allow parties to make attorneys’ fee motions multiple times throughout the course oflitigation, and would require trial courts to make piecemeal attorneys’ fee awards for every resolution of every contract clause. As the court in Frog Creek Partners explained, that approach “would place a great burden onthetrial courts to partition fees in a lawsuit among various independentcontract claims, each of whichis technically a separate cause of action.” (Frog Creek Partners, supra, 206 Cal.App.4th at 542-43.) Surely such a result was not intended by the Legislature in drafting section 1717. As such, Score’s argument must be rejected. (Peoplev. Pieters (1991) 52 Cal.3d 894, 903 [party’s legal interpretation should not be accepted if it would lead to an absurd result].) Moreover, Score’s interpretation eviscerates the plain meaning of section 1717, which requires a court to makethe prevailing party determination by determining who recovered a greater reliefin the action on the contract. (Civ. Code § 1717.) A party that prevails on its interpretation of one clause in a contract, the forum selection clause for instance, maystill lose on the larger set of 12 breach of contract claims. As one court stated, one party may have “wona battle,” but the other party “won the warandis the prevailing party.” (Maynard v. BTI Group, Inc. (2013) 216 Cal.App.4th 984, 994.) Under Score’s interpretation, the party who lost the war—wholostall of the controlling, important, and case- determining substantive aspects of the action—could nevertheless be awarded attorneys’ fees. Again, the Legislature surely did not intend such a result, asis clear from the plain language of section 1717. Finally, Score contends that current rule, as expressed in section 1717 and decadesof case law, will incentivize forum shopping in California courts and burden the judiciary. (Petition, at 11.) Yet Score points to no evidence to support this argument. To the contrary, the burden on the judiciary comes (and would multiply if Score had its way) from litigants like Score who seek attorneys’ fees for interim procedural victories. IV. CONCLUSION For the reasons discussedherein, the petition for review should be denied. 13 CERTIFICATE OF COMPLIANCE PURSUANT TO CALIFORNIA RULES OF COURT, RULE 8.504(d)(1) Pursuant to California Rules of Court, Rule 8.504(d)(1), I certify that the attached answer, including footnotes, contains 4,519 words, exclusive of the Table of Contents and Table of Authorties (as counted by the computer program used to prepare this document). Dated: June 15, 2015 J.J. LITTLE & ASSOCIATES,P.C. —