MBE Rules · Remedies
Attorney's Fees
Cal. Civ. Proc. Code § 1021; Civ. Code § 1717
The rule
California follows the American rule — fees only by contract or statute; § 1717 makes unilateral contract fee clauses reciprocal, and voluntary pre-trial dismissal defeats a § 1717 contract-fee award.
In plain English
In California, the general rule is that each party pays their own attorney's fees unless there is a contract or statute that provides otherwise. Under California Civil Code § 1717, if one party has a fee clause in a contract, the other party can also recover fees, making it reciprocal. However, if a party voluntarily dismisses their case before trial, they cannot claim attorney's fees under that contract.
Worked example
Party A and Party B entered into a contract that included a clause stating that the prevailing party in any dispute would be entitled to attorney's fees. Party A sued Party B but then voluntarily dismissed the case before trial. Party A cannot recover attorney's fees under the contract because of the voluntary dismissal.
Memory hook
In California, you pay your own fees unless the contract says otherwise, but don’t dismiss early or lose your chance to collect!
The trap
Exams may present scenarios where a party dismisses their case and then tries to claim fees, leading students to overlook the impact of the dismissal on their fee recovery rights. Students might also confuse unilateral and reciprocal fee clauses.
How examiners test it
Questions often involve a fact pattern where one party has a fee clause and the other party dismisses their case, testing the candidate’s understanding of the implications of voluntary dismissal on fee recovery.
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