Pacific Preferred Properties, Inc. v. Moss

In Pacific Preferred Properties, Inc. v. Moss (1999) 71 Cal.App.4th 1456, the Court considered the prior decision in Super 7 Motel Associates v. Wang (1993), 16 Cal.App.4th 541 and found it distinguishable. "The critical difference between this case and Super 7 is the attorney's fees provision in issue here . . . unambiguously includes the broker within the ambit of its benefit provisions and its performance obligations. There can be no claim 'the prevailing party,' as used in the attorney's fees provision, is not intended to apply to the broker. The trial court attempted to evade the implication of party status arising from this salient consideration by characterizing the broker as an intended third party beneficiary of the buyer-seller contract. However, that ascription does not fit; the attorney's fees provision is not, of necessity, a benefit." (Pacific Preferred, supra, 71 Cal.App.4th at p. 1462.) The contract at issue in Pacific Preferred stated: "'22. ATTORNEY'S FEES: In any legal action, proceeding or arbitration arising out of this agreement, whether instituted by or against the BUYER or SELLER, or the Brokers named herein, the prevailing party(s) shall be entitled to reasonable attorney's fees and costs.'" (Pacific Preferred, supra, 71 Cal.App.4th at p. 1460.)