Hasler v. Howard

Opinion

GILBERT, P. J.

This case is out of gas. The fumes will not move it an inch towards attorney’s fees.

In

Hasler v. Howard

(2004) 120 Cal.App.4th 1023 [16 Cal.Rptr.3d 217], we affirmed the denial of an award of attorney’s fees to the prevailing defendant on the ground that the attorney’s fees clause was not broad enough to encompass the plaintiff’s causes of action. Here we hold that plaintiff is not entitled to an award of attorney’s fees for prevailing on appeal.

Hsu

v.

Abbara

(1995) 9 Cal.4th 863 [39 Cal.Rptr.2d 824, 891 P.2d 804], does not authorize an award of fees simply because the opposing party claimed them. We reverse.

FACTS

Geoff Hasler sued his real estate broker Cynthia D. Howard for fraud, breach of fiduciary duty and breach of the duty to disclose. He alleged the home he listed with Howard was worth $4.5 million, but Howard encouraged

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him to accept an offer of $3.7 million. He claims Howard did not disclose that she also represented the buyers.

Hasler prayed for the following: damages and the difference between the sales price and the value of the property; for “all damages that will compensate plaintiff”; for punitive damages; and for reasonable attorney’s fees and costs. But he voluntarily dismissed his complaint prior to trial. The dismissal was not pursuant to a settlement.

Howard made a motion for attorney’s fees as the prevailing party. She based her motion on a provision in the listing agreement that stated: “In any action, proceeding, or arbitration between Seller and Broker regarding the obligation to pay compensation under this Agreement, the prevailing Seller or Broker shall be entitled to reasonable attorney’s fees and costs . . . .”