Facts

On December 1, 2006 Plaintiff Jeffrey K. Hitz was retained by Defendant Alta Investment Company ("Alta") to locate a tenant for a building in Westlake Village owned by Alta. Oaks Christian High School ("Oaks") is located next to this building. The listing agreement between Plaintiff and Alta stated: "The Owner identifies the following parties as excluded per paragraph 7.1". One of those parties was Oaks. In March 2007, Plaintiff contacted Oaks and then negotiated lease terms with Oaks to use the building as a middle school. In April 2007, Plaintiff created a letter of intent and draft-lease documents, and sent the documents to Alta. Alta instructed Plaintiff not to negotiate with Oaks. Alta and Oaks then directly negotiated lease terms. The listing period expired on May 30, 2007. In April 2008, Alta and Oaks entered into a 35-year lease.

In July 2007 Alta hired Plaintiff to locate a new building for a company that was then occupying the Westlake Village property. Plaintiff presented an offer on behalf of Alta to buy a building in Newbury Park for $6 million. Eventually Alta's representative and the owner negotiated a lease with an option to purchase the building for $6.825 million. Alta exercised the option and escrow closed in August 2009. Alta paid Plaintiff a commission of $175,000 for the purchase of the second building.

PLAINTIFF'S CONTENTIONS:
Plaintiff contended that he was entitled to a commission of approximately $600,000 for the lease with Oaks. He contended that Oaks was not an excluded party under the listing agreement. With regard to the purchase of the Newbury Park property, Plaintiff contended that even though he was paid a commission of $175,000, he was also entitled to interest and attorneys' fees. Plaintiff sued Alta and its partners on breach of contract claims regarding both transactions. Plaintiff also claimed that there was tortious interference with one or both contracts by Oaks and two of its principals, Alta's representative and Alta's accountant, the seller of the Newbury Park property, and the seller's brokers.

DEFENDANTS' CONTENTIONS:
Defendants contended that Oaks was expressly excluded from the listing agreement. Defendants' representatives testified that they had told Plaintiff before the listing agreement was signed that Oaks was off limits and that Plaintiff agreed to stay away from Oaks. As an alternative, Defendants contended that at best Plaintiff was entitled to only half a commission under the terms of the lasting agreement. With regard to the Newbury Park property, Defendants contend that Alta paid Plaintiff a commission as called for once escrow closed, and that no other amounts were due. Defendants contended that there was no tortious interference with either contract.

Settlement Discussions

Defendants made a 998 offer in September 2008 for $175,000. Plaintiff's initial demand was $1,234,432. Plaintiff settled with Oaks for $50,000. In March 2009, Plaintiff made a 998 offer of $999,999. Plaintiff's demands thereafter varied but never went below $650,000, which was the demand made after the judgment in the first trial. Defendants offered $350,000 at the second settlement conference (before the first trial), and again offered $350,000 at the settlement conference prior to the second trial. At that last settlement conference, Plaintiff's final demand was between $700,000-$800,000. Plaintiff raised its demand to $1 million prior to the second trial.

Damages

Plaintiff claimed a lost commission of approximately $600,000, interest and attorney's fees with regard to the Westlake Village property. For the Newbury Park transaction, Plaintiff claimed interest of approximately $5,000 plus attorney's fees.

Result

After the first bench trial, Judge Richard Wolfe ruled in favor of Defendants on all causes of action. Defendants were awarded $101,000 in attorneys' fees and $17,000 in costs. Plaintiff appealed. The court of appeal affirmed the judgment with regard to the interference with contract claims as well as the claims concerning the Newbury Park transaction, but ordered a new trial on the issue of whether Alta was required under the listing agreement for the Westlake Village property to have Plaintiff negotiate the lease with Oaks on Alta's behalf. In the second bench trial, Judge Russell Kussman found that Oaks was not an excluded party in the listing agreement and that Alta and its partners breached the listing agreement by not having Plaintiff negotiate the lease terms with Oaks. The Court's amended judgment, issued on June 11, awarded Plaintiff $1,174,156 as follows: $597,732 principle, $236,308 interest, $333,616 in attorney's fees, and $6,500 in costs.

Other Information

Defendants contend that the court of appeal held that Oaks is an excluded party. Judge Kussman ruled that the court of appeal did not decide the issue and left it for the trial court to determine on retrial. Defendants filed an appeal on June 1, 2012. FILING DATE: July 8, 2008.