After All, Defendants Did Show The Contract Was Inapplicable To Them, Such That The Hsu Decision Governed.
One of our leading cases is Hsu v. Abbara, 9 Cal.4th 863, 870 [Leading Case #2] holds that a party is entitled to Civil Code section 1717 attorney’s fees when the party prevails on grounds the contract is inapplicable, invalid, unenforceable, or nonexistent, if the opposing party would have entitled to fees had it prevailed. The 2/8 DCA, in McLean v. Rosman, Case No. B308260 (2d Dist., Div. 8 Oct. 5, 2022) (unpublished), found Hsu dispositive, affirming a lower court award of fees to defendants where they showed that a settlement agreement, with a fees clause, was inapplicable to them because they never signed it and the plaintiffs had failed to perfect a lien by recording the settlement. The panel also observed that Canal-Randolph Anaheim, Inc. v. Wilkoski, 78 Cal.App.3d 477, 486 (1978), which held that section 1717 does not apply to a person not a party to the contract, was impliedly overruled by Hsu.