Fees are recoverable when the plaintiff prevails, invalidating the contract, as well as when the plaintiff loses and the contract is enforced. Ordinarily, attorney fees would not be awarded to either party under a contract that concerned an illegal subject matter. But the illegality exception to the rule of mutuality of contractual attorney fee awards does not apply when, as here, the litigation involves the “invalidity” or “unenforceability” of an otherwise legal contract, such as a contract invalidated due to a conflict of interest.
California Court of Appeal, First District, Division One; (Humes, J.); December 15, 2017; 2017 WL 6397685.