                                                                           FILED
                            NOT FOR PUBLICATION                             APR 28 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RAYMOND REUDY; MARK KEVIN                        No. 10-15533
HICKS, dba Advertising Display Systems,
                                                 D.C. No. 06-CV-05409-SC
              Plaintiffs - Appellants,
                                                 MEMORANDUM *
  v.

CBS CORPORATION, a Delaware
corporation; PATRICK ROCHE, an
individual,

              Defendants - Appellees,

  and

CLEAR CHANNEL OUTDOOR, INC., a
Delaware Corporation; WILLIAM
HOOPER, an individual; DOES 1-50,

              Defendants.




                   Appeal from the United States District Court
                      for the Northern District of California
                   Samuel Conti, Senior District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                        Argued and Submitted April 13, 2011
                             San Francisco, California

Before: KOZINSKI, Chief Judge, N.R. SMITH, Circuit Judge, and BLOCK,
District Judge.**

      1.       The plain language of the Purchase and Sale Agreement does not

limit entitlement to attorney’s fees to those incurred in an independent action to

enforce the agreement. See Thompson v. Miller, 4 Cal. Rptr. 3d 905, 913 (Ct. App.

2003). Because the fee provision allows either party to recover fees, section 1717

of the California Civil Code does not apply. See Associated Convalescent Enters.

v. Carl Marks & Co., 108 Cal. Rptr. 782, 785 (Ct. App. 1973).

      2.       There is no support for appellants’ contention that the fee-shifting

rule applicable to antitrust claims displaces the different rule set forth in the

agreement.

      3.       With respect to Roche’s attorney’s fees, the parties agreed that a

defaulting party would pay “any and all costs arising as a result of [its] default,

including reasonable attorneys’ fees.” On its face, that provision is not limited to

fees incurred by the contracting parties. In any event, Roche was a beneficiary of

the agreement’s covenant not to sue, and appellants do not dispute that CBS



       **
             The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.

                                            2
incurred fees defending him. See Loduca v. Polyzos, 62 Cal. Rptr. 3d 780, 786 (Ct.

App. 2007).

      AFFIRMED.




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