MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
1. The plain language of the Purchase and Sale Agreement does not limit entitlement to attorney's fees to those incurred in an independent action to enforce the agreement. See Thompson v. Miller, 112 Cal.App.4th 327, 4 Cal.Rptr.3d 905, 913 (2003). Because the fee provision allows either party to recover fees, section 1717 of the California Civil Code does not apply. See Associated Convalescent Enters, v. Carl Marks Co., 33 Cal.App.3d 116, 108 Cal.Rptr. 782, 785 (1973).
2. There is no support for appellants' contention that the fee-shifting rule applicable to antitrust claims displaces the different rule set forth the agreement.
3. With respect to Roche's attorney's fees, the parties agreed that a defaulting party would pay "any and all costs arising as a result of [its] default, including reasonable attorneys' fees." On its face, that provision is not limited to fees incurred by the contracting parties. In any event, Roche was a beneficiary of the agreement's covenant not to sue, and appellants do not dispute that CBS incurred fees defending him. See Loduca v. Polyzos, 153 Cal.App.4th 334, 62 Cal.Rptr.3d 780, 786 (2007).
AFFIRMED.