 It
would be patently unfair to hold that Volcano waived its contractual right to attorneys'
fees because it appropriately required Banas and Castella to plead the basis for their
standing to assert breach of contract.6 Cf Johnson v. Myers, 2014 WL 2214045, at *2
(N.D.Cal.May 28, 2014) ("it would be inequitable to limit defendants' attorney's fees
recovery to the assets of a single plaintiff when every litigant was

[47 F.Supp.3d 965]

arrangement with other former CardioSpectra shareholders, or the dismissed defendants, regarding
indemnification for attorneys' fees, that is their business.However, there is no question that, as
plaintiffs, Banas and Castella are liable for attorneys' fees in the first instance..." 
Banas and Castella then appeal...and file an affidavit of inability to pay.