FILED
NOT FOR PUBLICATION
JUL 19 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAMER SALAMEH, et al., No. 14-56387
Plaintiffs - Appellants, D.C. No.
3:09-cv-02739-GPC-BLM
v.
5TH ROCK, LLC and MKP ONE, LLC, MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Argued and Submitted July 6, 2016
Pasadena, California
Before: VANASKIE,** MURGUIA, and WATFORD, Circuit Judges.
Plaintiffs appeal from an award of $405,371.25 in attorney’s fees to
defendants. The district court did not abuse its discretion in granting the award.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Thomas I. Vanaskie, United States Circuit Judge for
the U.S. Court of Appeals for the Third Circuit, sitting by designation.
Page 2 of 3
The plaintiffs’ general objections to the awarding of fees under the purchase
contract lack merit. In the appeal from their lawsuit’s dismissal, we held that the
interests they purchased were not securities. Salameh v. Tarsadia Hotel, 726 F.3d
1124, 1129–32 (9th Cir. 2013). That decision forecloses their argument here that
the purchase contract is illegal and hence unenforceable for failing to comply with
securities laws. Their alternative argument that the contract’s fees provision does
not cover the fraud causes of action also fails. The provision permits fees in any
legal action “arising out of this Contract,” and this language is broad enough to
encompass tort claims based on the contract’s underlying transaction. See, e.g.,
Santisas v. Goodin, 951 P.2d 399, 405 (Cal. 1998). The fees provision is therefore
enforceable and applicable to the fraud causes of action.
As for the reasonableness of the fees award, the district court was not
required to further apportion the fees between the claims or the defendants. The
district court had discretion not to exclude fees for legal work common to both the
fraud and securities claims because the claims shared core factual allegations and
overlapping legal elements. See Jankey v. Lee, 290 P.3d 187, 198 (Cal. 2012).
Plaintiffs’ reliance on Carver v. Chevron U.S.A., Inc., 14 Cal. Rptr. 3d 467 (Ct.
App. 2004), to support a contrary result is misplaced because the statutes
governing the securities claims do not indicate a legislative policy to forbid fees for
Page 3 of 3
overlapping fee-shifting claims. See Jankey, 290 P.3d at 198–99. The district
court also had discretion not to limit fees for work representing additional
defendants in the lawsuit because the alleged liability of all the defendants shared
an overlapping factual and legal basis. See Cruz v. Ayromloo, 66 Cal. Rptr. 3d
725, 730 (Ct. App. 2007).
AFFIRMED.
Appellees’ motion for sanctions is DENIED. Their motion for judicial
notice is GRANTED.