MOSTEN MANAGEMENT COMPANY, INC.; Real Estate Operations, Inc., Plaintiffs-Appellees, v. ZURICH-AMERICAN INSURANCE GROUP, Defendant-Appellant; Mosten Management Company, Inc.; Real Estate Operations, Inc., Plaintiffs-Appellants, v. Zurich-American Insurance Group, Defendant-Appellee

PAEZ, Circuit Judge,

dissenting.

I respectfully dissent. I would affirm for the reasons stated in the district court’s Order Regarding Attorneys’ Fees and Expenses and Pre-judgment Interest (April 10, 1996), Order Regarding Attorneys’ Fees and Expenses (February 6, 1997), Order Regarding Mosten’s Application for Post-trial Brandt Fees and Expenses (December 23, 1998), and Order Denying Plaintiffs’ Application for Appellate Brandt Fees (January 28, 2000).

MEMORANDUM

The district court erred in awarding Mosten attorneys’ fees under Brandt v. Superior Court, 37 Cal.3d 813, 210 Cal.Rptr. 211, 693 P.2d 796 (1985). Mosten initially brought both tort and contract claims against Zurich, but the district court granted Zurich summary judgment as to the latter claim; the only remaining claim was for breach of the implied covenant of good faith and fair dealing. However, Brandt fees may not be awarded for recovery on such claims. Burnaby v. Standard Fire Ins. Co., 40 Cal.App.4th 787, 47 Cal.Rptr.2d 326, 329 (Ct.App.1995); United Servs. Auto. Ass’n v. Dalrymple, 232 Cal.App.3d 182, 283 Cal.Rptr. 330, 332 (Ct.App.1991).

Because Mosten can’t satisfy the Brandt requirements for its trial fees, it can’t satisfy the same requirements for fees on appeal. The district court therefore did not err in denying Mosten’s application for appellate Brandt fees.

AFFIRMED in part and REVERSED in part. No costs.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Circuit Rule 36-3.