Prevailing Seller Failed To Apportion Fees On Defending The Compensable Contract Claim, With No Recovery Allowable Under The Non-compensable Tort Claims.
This case reinforces the propriety of apportioning fees on compensable contract claims for a prevailing party; after all, this is what the prevailing party can get—not non-compensable work on tort claims where a narrow contractual fees clause is involved.
In Cal Continental Capital, Inc. v. 1502 Rockwood, LLC, Case Nos. B331098 et al. (2d Dist., Div. 1 Aug. 31, 2026) (unpublished), seller prevailed on buyer’s claims to recover a commission for buyer’s broker. There was a modified contractual fees clause in the purchase agreement targeting claims to “interpret or enforce” the agreement, not extra-contractual activities such as tort/fraud claims. The lower court denied contractual fees altogether, given that seller did not apportion the fees expended on defending the compensable contract claim—prompting a cross-appeal by seller. The 2/1 DCA affirmed. The contractual fees clause was narrow, not extending to tort, extra-contractual claims—with seller failing to allocate out the compensable work on the contract claim. Once that was decided, the other work was non-compensable for uncovered tort claims under the contractual fees clause.