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.)

Not surprisingly, Minor fails to provide any pertinent law to support his contention. A. Minor Is Not Entitled To Attorney's Fees Under California Civil Code § 1717 Minor claims he is the prevailing party with respect to his claim regarding the April Artworks and consequently is entitled to recovery of attorneys' fees pursuant to section 1717. However, Civil Code section 1717(a) only permits recovery of attorneys' fees following an action to enforce a contract that specifically entitles the prevailing party to recover its fees.

A-C thereto. 2 Defendant recognizes that pre-litigation fees and costs are properly recoverable under Cal. Civ. Code § 1717. The issue at bar is not whether Defendant has the option of recovering pre-litigation fees and costs as the “prevailing party.”

1 0057536-00003 Having considered Defendant Teleserve, LLC’s (“Teleserve”) Motion for Partial Summary Judgment, the accompanying Memorandum of Points and Authorities, the opposition and reply briefs, the evidence submitted, and the arguments presented at hearing, the Court finds that there is no genuine dispute as to any material fact and the Defendant is entitled to partial judgment as follows: (1) The most Plaintiff Ytel, Inc (“Ytel”) is entitled to collect under the terms of the applicable contract is $32,072.50. (2) Teleserve has previously tendered the amount of $32,072.50 to Ytel and is considered the prevailing party under California Civil Code section 1717. IT IS SO ORDERED.

One mayrationally believe that initiating litigation should carry different consequences than simply invoking a contract defensively in an existing lawsuit. That calculus makes particular sense in California, because creating a contractual right to attorney fees also spawnsa reciprocal potential forliability to the other side under Civil Code section 1717. (Hsu ». Abbara (1995) 9 Cal.4th 863, 870-871.) The parties mayprefer to retain the option of raising contract-based affirmative defenses without exposing themselves to that risk.

B. ¶ 3, Seisinger Dec. ¶ 3, Ex. B. ¶ 3; Cal. Civ. Code § 1717; Reudy v. Clear Channel Outdoors, Inc., 693 F.Supp.2d 1091, 1098 (N.D. Cal. 2010) (if one party is clearly entitled to attorneys’ fees under the agreement then the other side is also entitled to such fees if it prevails.); see also Khan Dec. ¶ 3, Ex.

Federal law also supplies the evidentiary requirements for attorneys’ fee awards in diversity cases. Yeager v. AT&T Mobility, 2012 WL 6629434 (E.D.Cal. Dec. 19, 2012) (Federal Rules of Evidence apply even in a diversity case, so that where plaintiff did not have personal knowledge of the services rendered by previous counsel, plaintiff’s submission of detailed invoices ... setting forth the services rendered was insufficient to meet his evidentiary burden); Buena Vista, LLC v. New Resource Bank, 2011 WL 250361 at *12 (N.D.Cal. 8 26 2011) (awarding fees under Cal. Civ. Code §1717 and Cal. Code Civ. Proc. §1021, but reciting federal requirement that “In calculating hours, the applicant has the burden of justifying his or her claim and must submit detailed time records for the court’s consideration.”)

Thus, another independently sufficient basis for the fee award is Defendants’ contractual agreement to pay attorneys’ fees and costs up to $410,000. Cal. Civ. Code § 1717; Farmers Ins. Exch., 250 F.3d at 1236-37 (applying § 1717 in a diversity action). This is to be done with the view that such agreements are highly favored at law and interpretation is to be in favor of enforcement if possible.

Under the “law of the case” doctrine and Bremen’s “prior judicial decision” language, the Court’s analysis should end here.13/14 If the Court is inclined to look for additional grounds, however, there are several other “fundamental” and “strong” policies California that will be contravened if the forum selection and choice of law clauses are enforced here. As discussed at length in Plaintiffs’ brief in opposition to KeyBank’s Motion to Compel Arbitration15 these include such policies that 1) favor consumer class actions, 2) prohibit class action bans in consumer adhesion contracts like the Note, and 3) underlie the statutory reciprocity for contractual attorneys fees in California Civil Code section 1717. In opposition to KeyBank’s motion to compel arbitration, Plaintiffs argued that applying Ohio law would contravene a “fundamental” policy of the UCL that has long allowed consumers 13 The law of the case doctrine precludes a court from reconsidering an issue that it has already resolved (here, that claims for injunctive relief under the UCL is a “fundamental” California public policy).