Rule 36-3. FILED OCT 26 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS 2 PROPERTIES HENDERSON 18, LLC v. San Diego Steel Holdings Group, Inc.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TODD LEE LEANY, Trustee of the Todd
Lee Leany Irrevocable Trust; CENTURY
PROPERTIES HENDERSON 18, LLC,

Plaintiffs-Appellees,

v.

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.

No. 19-16250

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

MEMORANDUM
*

TODD LEE LEANY, Trustee of the Todd
Lee Leany Irrevocable Trust; CENTURY

No. 19-16328

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

OCT 26 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2
PROPERTIES HENDERSON 18, LLC,

Plaintiffs-Appellants,

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.

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

CENTURY PROPERTIES HENDERSON
18, LLC,

Plaintiff-counter-
defendant-Appellant,

v.

SAN DIEGO STEEL HOLDINGS GROUP,
INC.,

Defendant-counter-claimant-
Appellee.

No. 19-17460

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

3
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.

4
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

5
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.

6
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.

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

I concur in the result.

1
FILED

OCT 26 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS