If a suit is dismissed on forum non conveniens grounds, the defendant is not entitled to an attorney fee award as the prevailing party, at least if the plaintiff can and does re-file suit in the other forum. The dismissal of a breach of contract complaint for forum non conveniens (based on a forum selection clause in the contract) did not make the defendant a prevailing party entitled to an attorney fee award under Civ. Code 1717 when the plaintiff had promptly refiled his complaint in the chosen forum. A procedural victory that results in transferring an active contract dispute from one forum to another is not a final resolution of the contract dispute and so it is premature to award attorney fees. However, if something prevented the plaintiff from refiling in the chosen forum—such as the statute of limitations—then the defendant might properly be found to be the prevailing party entitled to fees.
California Supreme Court (Werdegar, J.) ; April 6, 2017; 2017 WL 1279701