The opinion of the court was delivered by: Robie , J.
Valdovino v. Mason McDuffie Real Estate CA3
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
In an action that arose out of a commercial real estate deal gone bad, the seller, David R. Valdovino, prevailed against the buyers on their claims for breach of contract and specific performance by establishing that no purchase contract was ever formed. Valdovino also prevailed against Mason McDuffie Real Estate, Inc., dba Prudential California Realty (Mason McDuffie) -- the brokerage firm that employed the real estate agent involved in the deal -- on Valdovino's cross-complaint against Mason McDuffie for breach of fiduciary duty and professional negligence (based on the actions of the agent, Roger Edwards) and on Mason McDuffie's cross-complaint against Valdovino for indemnity.
Postjudgment, the trial court ordered the buyers to pay some of Valdovino's attorney fees under the fee clause in the proposed purchase agreement. The court also ordered Mason McDuffie to pay most of Valdovino's remaining attorney fees in the action pursuant to the fee clause in the proposed purchase agreement "because he prevailed on his breach of fiduciary cause of action."
On appeal, Mason McDuffie contends the trial court erred in ordering it to pay attorney fees to Valdovino because Mason McDuffie "was not a party to any contract with an applicable fee provision." Valdovino contends Mason McDuffie forfeited this argument by failing to raise it in the trial court. We agree with Valdovino. In opposing Valdovino's fee motion, Mason McDuffie did not challenge Valdovino's right to fees; instead, Mason McDuffie challenged only the amount of fees Valdovino sought. Although we have discretion to consider Mason McDuffie's argument, raised for the first time on appeal, that the award of any fees was improper, Mason McDuffie offers us no reason why we should exercise that discretion in its favor and accordingly we decline to do so. Thus, we will affirm the attorney fee award.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2005, Valdovino, who owned an automotive repair business that included a parcel of real estate, entered into a listing agreement with Edwards, an agent employed by Mason McDuffie, to sell the business. The listing agreement included an attorney fees clause, but the scope of that clause was limited to litigation "regarding the obligation to pay compensation under th[e] listing agreement."*fn1
In June 2005, Zhi Zheng and Kevin Lee (the buyers) signed a "Standard Offer, Agreement and Escrow Instructions for Purchase of Real Estate (Non-Residential)" form, offering to purchase the business. The form includes an attorney fees clause, which provides in relevant part as follows: "If any Party or Broker brings an action or proceeding . . . involving the Property whether founded in tort, contract or equity, or to declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding, action, or appeal thereon, shall be entitled to reasonable attorneys' fees. . . . The term 'Prevailing Party' shall include, without limitation, a Party or Broker who substantially obtains or defeats the relief sought, as the case may be, whether by compromise, settlement, judgment, or the abandonment by the other Party or Broker of its claim or defense."
Valdovino signed the purchase agreement but added an addendum with additional terms. The buyers signed the addendum but also added one of their own. Valdovino never signed the second addendum.
After Valdovino refused to go through with the deal, the buyers sued him, eventually filing an amended complaint in December 2005, alleging causes of action for specific performance and breach of contract against him and a cause of action for professional negligence against Mason McDuffie. The buyers asserted that Mason McDuffie had altered terms in the first addendum without permission and that this alteration led Valdovino to claim there was no contract.
Valdovino filed a cross-complaint against Mason McDuffie and Edwards for breach of fiduciary duty and indemnity, claiming there was no meeting of the minds with the buyers because Edwards altered the addendum without permission.
Mason McDuffie filed a cross-complaint against Valdovino for indemnity, asserting that if Mason McDuffie was liable to the buyers, Valdovino was ...