NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 26 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TODD LEE LEANY, Trustee of the Todd No. 19-16250 Lee Leany Irrevocable Trust; CENTURY PROPERTIES HENDERSON 18, LLC, D.C. No. 2:15-cv-01349-MMD-CWH Plaintiffs-Appellees,

v. MEMORANDUM*

SAN DIEGO STEEL HOLDINGS GROUP,

INC.,

Defendant-Appellant,

and

DAVID PERKINS; ERIC B. BENSON,

Defendants,

v.

UINTAH LAND INVESTMENTS, LLC, a Nevada Limited Liability Company,

Third-party-defendant- Appellee.

TODD LEE LEANY, Trustee of the Todd No. 19-16328 Lee Leany Irrevocable Trust; CENTURY

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

PROPERTIES HENDERSON 18, LLC,

D.C. No. Plaintiffs-Appellants, 2:15-cv-01349-MMD-CWH

v.

SAN DIEGO STEEL HOLDINGS GROUP,

INC.,

Defendant-Appellee,

and

DAVID PERKINS; ERIC B. BENSON,

Defendants,

v.

UINTAH LAND INVESTMENTS, LLC, a Nevada Limited Liability Company,

Third-party-defendant- Appellant.

CENTURY PROPERTIES HENDERSON No. 19-17460 18, LLC,

Plaintiff-counter- D.C. No. defendant-Appellant, 2:15-cv-01349-MMD-CWH

v.

SAN DIEGO STEEL HOLDINGS GROUP,

INC.,

Defendant-counter-claimant- Appellee.

2 Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding

Argued and Submitted October 9, 2020 Portland, Oregon

Before: PAEZ and RAWLINSON, Circuit Judges, and ANTOON, ** District Judge. Concurrence by Judge RAWLINSON

In these consolidated appeals, San Diego Steel Holdings Group, Inc. (San

Diego Steel) appeals the district court’s judgment as a matter of law on San Diego

Steel’s breach of fiduciary duty claim against Todd Leany, and Century Properties

Henderson 18, LLC (Century Properties) appeals the district court’s denial of its

motion for attorney’s fees. We have jurisdiction under 28 U.S.C. § 1291. Finding

no error, we affirm both judgments.1

1. We review de novo a district court’s judgment as a matter of law. Dees

v. Cnty. of San Diego, 960 F.3d 1145, 1151 (9th Cir. 2020). Judgment as a matter

of law is warranted if “a reasonable jury would not have a legally sufficient

evidentiary basis to find for the [non-moving] party.” Fed. R. Civ. P. 50(a)(1). In

assessing a motion for judgment as a matter of law, “[w]e ‘must view the evidence

** The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. 1 In a third appeal, Case No. 19-16328, Leany appealed some of the district court’s rulings, but he opted not to pursue that appeal. Thus, we address only San Diego Steel’s appeal in Case No. 19-16250 and Century Properties’ appeal in Case No. 19-17460.

3 in the light most favorable to the nonmoving party . . . and draw all reasonable

inferences in that party’s favor.’” Dees, 960 F.3d at 1151 (second alteration in

original) (quoting EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 961 (9th Cir.

2009)).

Under Nevada law, “[a] fiduciary relationship is deemed to exist when one

party is bound to act for the benefit of the other party.” Hoopes v. Hammargren,

725 P.2d 238, 242 (Nev. 1986). “The essence of a fiduciary or confidential

relationship is that the parties do not deal on equal terms, since the person in whom

trust and confidence is reposed and who accepts that trust and confidence is in a

superior position to exert unique influence over the dependent party.” Id. (quoting

Barbara A. v. John G., 193 Cal. Rptr. 422, 432 (Ct. App. 1983)).

Here, Leany was entitled to judgment as a matter of law on San Diego

Steel’s breach of fiduciary duty claim because the evidence presented at trial was

insufficient to establish a fiduciary relationship between these parties. San Diego

Steel conceded during trial that its “partnership” theory of fiduciary duty was

foreclosed by the district court’s summary judgment ruling on another claim. And

although Nevada law imposes duties on licensed real estate brokers, see § 645.252,

Nev. Rev. Stat., San Diego Steel presents no authority establishing that an

unlicensed person owes a fiduciary duty any time he performs an act defined as an

4 act of a real estate broker under Nevada Revised Statutes § 645.030.2 Finally, the

circumstances of this case—even as presented through San Diego Steel’s trial

witness, David Perkins—do not establish a “special relationship” or “agency” basis

for a fiduciary duty. These parties had long been adversaries, and San Diego Steel

clearly was not relying on Leany for real estate expertise. Perkins knew that Leany

had his own self-interest in mind in cooperating with San Diego Steel, and Leany

was not in a position of “trust and confidence.” The breach of fiduciary duty claim

thus failed as a matter of Nevada law.

2. Generally, the denial of an award of attorney’s fees is reviewed for abuse

of discretion. FDIC v. Lugli, 813 F.2d 1030, 1034 (9th Cir. 1987). But where, as

here, the propriety of a fee award depends on contractual interpretation or other

questions of law, we review the fee ruling de novo. Id. On de novo review, we

find no error in the district court’s denial of Century Properties’ motion for fees.

Under Nevada law, awards of attorney’s fees are allowed only where

authorized “by a statute, rule or contract.” U.S. Design & Constr. Corp. v. Int’l

2 We reject San Diego Steel’s reliance on Loomis v. Lange Financial Corp., 865 P.2d 1161 (Nev. 1993). There, the Supreme Court of Nevada mentioned but did not discuss breach of fiduciary duty claims against a California brokerage firm and brokers who were not licensed in Nevada. The Loomis defendants clearly held themselves out as brokers and entered into a marketing agreement with the plaintiffs. Those facts are quite different from those of the case before us, and we do not read Loomis as standing for the proposition that unlicensed persons who perform an action in a real estate transaction necessarily owe a fiduciary duty.

5 Bhd. of Elec. Workers, 50 P.3d 170, 173 (Nev. 2002); accord Flamingo Realty,

Inc. v. Midwest Dev., Inc., 879 P.2d 69, 73 (Nev. 1994). Century Properties

asserted contractual entitlement to attorney’s fees under what the parties referred to

at trial as the second Purchase and Sale Agreement (the March 31 Agreement), as

amended by the “First Amendment” to that agreement. The March 31 Agreement

contained an attorney’s fee provision, but the First Amendment did not.

The district court correctly construed these agreements in denying Century

Properties’ motion for fees. As the court noted, Century Properties was not

initially a party to the March 31 Agreement, which described San Diego Steel as

the seller. The March 31 Agreement was then amended by the First Amendment,

which named Century Properties as the seller under the March 31 Agreement in the

place of San Diego Steel. And simultaneously with the substitution of Century

Properties as the seller, the First Amendment released San Diego Steel from “all

obligations” under the March 31 Agreement. Thus, Century Properties and San

Diego Steel were never at the same time parties to the March 31 Agreement, the

only contract that contained a fee-shifting provision.

AFFIRMED.

6 Leany v. San Diego Steel Holdings Group, FILED Case Nos. 19-16250, 19-16328 and 19-17460 Rawlinson, Circuit Judge, concurring OCT 26 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I concur in the result.

1