The National Law Review says the holding of Mountain Air is critical to the structure and language of attorneys’ fees clauses in California. How so? Well, If a party uses a contract solely in defense — for example, using a contractual release as a defense to a tort claim — California law does not permit an attorneys’ fees award to the defendant if the clause only covers an “action or proceeding to enforce” the contract, or any similar language. So, in order to ensure that a contractual attorneys’ fees provision will cover this situation, the clause must show explicit intent to include affirmative defenses based on the parties’ rights in the contract.
You know all of those words in your business contracts? Well, they count and they could add up to some big numbers if you don’t have the right ones in the right places. And that’s where “Mr. Affirmative Defense,” Dean Sperling comes in, helping to get your contracts straight and all of your legal matters resolved with YOUR best interests in mind.
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