Asthe majority opinion in the Court of Appeal, as well as the recent decision of the Court of Appeal in Windsor Pacific, supra, 213 Cal.App.4th 263, concluded, the ordinary meaning of the words > An attorney fee clause can provide for an attorney fee award in an action on the contract or, if worded more broadly, on noncontract actions. (Maj. opn., 6-7, citing Civ. Code, § 1717, and CodeCiv. Proc., § 1021.) Neither party, nor the Court of Appeal, has raised any issue in this case as to the application of Civil Code section 1717.

3. Plaintiffs’ Demand for Attorneys’ Fees Fails as a Matter of Law and Must Be Dismissed. Under California law, attorneys’ fees are not recoverable unless expressly authorized by statute or by the parties’ contract. (Cal. Civ. Proc. Code § 1021 (West 2017); Reynolds Metal Co. v. Alperson, 25 Cal. 3d 124, 127-28, 599 P.2d 83, 158 Cal. Rptr 1 (1979).) The Complaint does not include a contract between the parties that authorizes attorneys’ fees.

California follows the "American Rule," codified in Code of Civil Procedure section 1021, "under which parties to litigation pay their own attorneys' fees, unless a statute or contract provides otherwise." Summers v. Newman, 20 Cal.4th 1021, 1031 (1999); Cal. Code Civ. Proc. § 1021. Here, the SAC seeks recovery on the claim for breach of contract for damages, costs, and attorneys' fees incurred by Tabletop arising from the purchases of the Printer from Citizen.

Since SerranoIIT, the California Supreme Court has repeatedly acknowledgedthat viability of the common fundtheory as a basis for awardingattorneys’ fees. See, e.g., Trope v. Katz (1995) 11 Cal.4th 274, 279, 45 Cal.Rptr.2d 241 (noting that the California Supreme Court has relied onits "inherent equitable authority" to develop the common fund theory of recovery); Sam Andrews' Sons v. Agricultural Labor Relations Bd. (1988) 47 Cal.3d 157, 172 n.10, 253 Cal.Rptr. 30 ("This court has generally recognized only three exceptionsto the application of [Code of Civil Procedure] section 1021: the commonfund, substantial benefit, and private attorney general theories.") (emphasis added); Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 505, 198 Cal.Rptr. 551 ("[I]f the litigation has succeededin creating or preserving a commonfundfor the benefit of a numberof persons, the plaintiff may be awarded attorney fees out of that fund."); Serrano v. Unruh ("Serrano IV") (1982) 32 Cal.3d 621, 627, 186 Cal.Rptr. 754 (recognizing that the commonfund theory was a well-established exception to the general rule that counsel fees are not recoverable absent statute or enforceable agreement); Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 908, 160 Cal.Rptr. 124 (recognizing the common fundtheoryas a basis for awarding attorneys’ fees and holding that the California Public Utilities Commission "possesses equitable power to award attorney fees under the commonfund doctrine in quasi-judicial reparation actions."), disapproved on another point in K

Case5:09-cv-01911-EJD Document238 Filed09/10/14 Page34 of 49 PLAINTIFF’S RENEWED MOTION FOR FINAL APPROVAL - Case No. 5:09-CV-01911-EJD 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 M E H R I & S K A L E T , P L L C agreements between the parties if the agreement is otherwise valid. 30 California Code of Civil Procedure § 1021 essentially codifies the principle that courts should generally respect attorneys’ fee agreements made by and between the parties. “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties ....” Id.

Case5:09-cv-01911-EJD Document247 Filed09/10/14 Page34 of 49 PLAINTIFF’S RENEWED MOTION FOR FINAL APPROVAL - Case No. 5:09-CV-01911-EJD 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 M E H R I & S K A L E T , P L L C agreements between the parties if the agreement is otherwise valid. 30 California Code of Civil Procedure § 1021 essentially codifies the principle that courts should generally respect attorneys’ fee agreements made by and between the parties. “Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties ....” Id.

Daniels does not point to any contractual provision in the Creator Agreement in which Magicspace agreed to pay Daniels’ attorney’s fees in a proceeding seeking to vacate an arbitration award. Cal. Code Civ. Proc. § 1021. This should resolve the matter. California follows the “American rule” that parties bear their own fees in actions to enforce contracts unless the agreement provides otherwise.

” nor does the Award provide for fees-shifting. Cal. Code Civ. Proc. § 1021. This should resolve the matter.

/d. at 34-38. This Court first noted the general rule that each party pays its own attorneys’ fees, absent a specific statute or agreement by the parties. Jd. at 34 (citing Cal. Civ. Proc. Code § 1021). Despite this rule, the Serrano II Court acknowledged the well-recognized, equitable exception to the general rule whereby courts may award attorneys’ fees whenthe litigation creates a common fund: “[T]he well- established ‘common fund’ principle [applies] when a number ofpersons are entitled in commonto a specific fund, and an action brought by a plaintiff or plaintiffs for the benefit of all results in the creation or preservation ofthat fund, such plaintiff or plaintiffs may be awarded attorneys fees out of the fund.”

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.”) citing Chalmers v. City of Case 3:11-cv-02794-L-MDD Document 55 Filed 01/28/13 Page 7 of 19 Response to Plaintiff’s Supplemental Motion for Attorneys’ Fees 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986).