*1 Dist., Second B191810. Div. Seven. May [No. 2007.] ACOSTA, STEVEN M. Plaintiff and Appellant, KERRIGAN,
ROBERT H. Defendant and Respondent.
Counsel Weiss, Law J. and K. Hunt for Hyrum Offices Thomas Thomas J. Weiss Plaintiff and Appellant. Mark, and
Nordman Hair & Joel Susan M. Seemiller Cormany Compton, J. Brook Carroll for Defendant and Respondent.
Opinion (1) Steven M. JOHNSON, awarding . from order appeals J Robert H. fees in connection with his successful Kerrigan attorney under lease arising between arbitration of and an order Acosta’s agreement denying contends an interim for those same fees. Acosta award a claim we find Based unpersuasive. fees is impermissible, arbitrator, not Acosta also contends an between agreement parties, court, fees. Kerrigan attorney the trial have decided whether to award issue, the trial court had ultimately This we find to be a close but conclude that court and award before to determine proceedings we affirm the orders. to do so. Accordingly, also was in better position FACTS AND PROCEEDINGS BELOW to Acosta’s for writ of response complaint relief possession, injunctive damages forcible detainer and forcible other entry, Kerrigan and the defendants filed a under a in an “Occupancy Agreement” between Acosta clause Kerrigan. states, in “Any pertinent part, dispute regarding any *3 Agreement an act or which or would allegedly has violate any provision of this . . . Agreement will ... as submitted arbitration be the exclusive for such claim remedy or The trial court denied dispute.” Kerrigan’s on grounds the arbitration clause n was unconscionable and Kerrigan had waived his arbitrate dispute. Kerrigan and this court issued the trial appealed reversing opinion court’s order.1 conference,
At a status trial postappeal court ordered the matter to confirm, arbitration and it. stayed The reserved jurisdiction modify, vacate or correct arbitrator’s award to order of the dismissal The court also complaint. reserved for costs regarding request on and motion attorney fees stated intended to file. appeal Kerrigan $140,000 filed motion than
Kerrigan attorney more requesting to the pursuant part the arbitration clause in the Occupancy Agreement stating, “Should any hereafter institute party Agreement legal any action or administrative the other other proceeding against by any method than said be responding shall entitled to recover from party costs, all initiating damages, fees incurred attorneys’ expenses, motion, as a-result of such action.” In his asserted his Kerrigan “entitlement to recover fees is immediate upon successfully arbitra- moving case[] tion—as Kerrigan'now has done—and is enforceable now whether or not Kerrigan is ever at the ‘prevailing party’ merits conclusion arbitration proceedings.”2 fees,
In to Kerrigan’s motion for Acosta there is opposition argued no an interim fee to be authority award made before the conclu- permitting sion of the arbitration and before the is identified. He also prevailing party Acosta (Oct. B181678) [nonpub. opn.]. Agreement stating The Occupancy prevailing party also includes a separate concerning arising agreement a dispute under the is entitled to recover fees. be to arbitration the same for fees should Kerrigan’s subject
argued asserted did Acosta also against Kerrigan. manner as his claims to determine reasonable sufficient to allow the trial court submit evidence award. fee argument to hear oral before the trial court was scheduled day fees, an ex Acosta filed
Kerrigan’s parte application motion Code of Civil Procedure the trial court to under asking stay proceeding filed simultaneously section 1281.43 until court decided Acosta’s for fees. Kerrigan’s petition, out of and “obviously arises asserted to mandatory to the and therefore is subject relates Occupancy Agreement, arbitration.”
The next court heard oral on Acosta’s ex parte day, *4 court attorney and motion for fees. trial took Kerrigan’s application order Kerrigan’s matter under submission and then issued minute granting matter, the court motion for fees in and it in As threshold part denying part. it had to claim for fees jurisdiction attorney found reserved decide Kerrigan’s ex arguing the assertion in Acosta’s (effectively rejecting parte application arbitration). for to The court also inter- claim fees was Kerrigan’s subject in the to mean the court Agreement relevant preted make of the arbitration before could a fee award before completion at was identified the arbitration. The court awarded prevailing party $60,000 to his in fees incurred in connection with successful attorney petition arbitration. compel award, filed
More than a month after the trial court made its to to Acosta’s still pending compel opposition petition for Acosta’s Kerrigan argued petition fees. Kerrigan’s ruled his motion. already moot because the court had upon to the object waived arbitration to “by failing He also asserted Acosta had status on this issue” jurisdiction postappeal court’s reservation conference. states, been pertinent part: application in “If an has Procedure section 1281.4 Code Civil controversy is arbitrate a which competent
made to a court ... order to State and such proceeding before court of this pending an issue involved in an action or shall, undetermined, proceeding pending or the court in which such action application proceeding until upon stay to action or the action or proceeding, motion of a such and, controversy is arbitration of such to is determined if an order arbitrate application ordered, until such earlier to arbitrate or until is had in accordance with order an arbitration specifies.” as the court time First, raised Acosta several to arguments response Kerrigan’s opposition. “the to argued Acosta court needs act on the order to assure proper review.” Acosta not argued also trial court should have decided appellate fees motion to before Acosta’s because Acosta requested stay Code of Civil proceedings pursuant Procedure section 1281.4 before the court ruled on Kerrigan’s motion. Acosta asserted he not Finally, did waive his to arbitration right by failing to the trial object court’s reservation of jurisdiction concerning Kerrigan’s claim for fees. Acosta stated claim for fees was of the contro- part versy court had ordered to previously arbitration. Acosta claimed he had a to file a arbitration in motion response Kerrigan’s fees and the trial court needed to decide his petition. The trial court heard oral on Acosta’s arbitra- and issued a tion minute order it. The stated it denying had already considered these same Acosta in rejected arguments made connection with his Kerrigan’s motion for fees. The opposition court con- cluded Acosta was it to reconsider its without asking ruling prior complying with for a motion for set forth in requirements reconsideration Code of Procedure Civil section 1008. filed a notice of from the trial court’s 2006 order appeal April motion for and the June 2006 order denying arbitration.4
DISCUSSION *5 (1) Acosta makes two contentions on claim for appeal: Kerrigan’s attorney incurred in fees connection with his successful to arbitration compel petition 4 Kerrigan appealed contends Acosta from nonappealable has two orders and this court has First, awarding no to decide the attorney matter. asserts an order fees made in petition with an granting compel nonappealable connection order to is a arbitration order. Second, he asserts to petition compel attorney Acosta’s arbitration of the for fees was fees, really improper awarding an motion of the and for reconsideration order therefore is not appealable an order either. Kerrigan’s awarding to position attorney appealable, As the order fees not this division is “Although compelling appealable, has concluded otherwise: an order is not arbitration an order aggrieved immediately an requiring party pay money perform to or some other act as a final of a and appealable determination collateral matter distinct severable from the 641, 645, subject (Lachkar (1986) general litigation.” Cal.App.3d v. Lachkar fn. 1 Cal.Rptr. awarding attorney [reviewing order costs and fees in connection with 501] Moreover, arbitration].) compel Kerrigan acknowledges, successful to as an order Proc., (Code denying to is an Civ. appealable order. § (a).) stay proceedings subd. Acosta filed arbitration and of requested his Thus, the trial before court ruled on motion for fees. even if the order awarding denying fees were not the order appealable, Acosta’s be appealable. would interim fees is be an award of attorney impermis- arbitrated the of evidence challenge sufficiency
sible. On Acosta does appeal, the fee of fees or the amount of submitted in support award.
I. COURT PROPERLY AWARDED THE TRIAL FEE A ATTORNEY
KERRIGAN REASONABLE THE PETITION TO COMPEL ARISING FROM ARBITRATION. above, of
As set forth moved for an award pursuant in full: Agreement “Any an arbitration clause in the stating, Occupancy of or act which Agreement this dispute regarding any Occupancy has or would of this allegedly any Occupancy Agreement violate provision (‘Arbitrable be in Los Angeles, will submitted Dispute’) California, law in before arbitrator licensed to practice experienced American Arbitra- California and selected in accordance with rules Association, or Should tion as exclusive such claim remedy dispute. or administra- legal this hereafter institute action any Agreement any party tive the other other than said proceeding against by any method all from initiating shall be entitled to recover responding party , costs, such as a result of fees incurred damages, expenses, attorneys’ action.”
We must to determine Agreement interpret or forum which forum—the trial court arbitration—is appropriate decide a with a successful incurred in connection this arbitration. Our interpretation provi- sion, evidence, novo subject in the absence to our de any extrinsic But contracting review.5 that turns to be no task. This case easy out proves as in which well as can hand the courts conundrum Legislature are slimmest contradictory interpretations plausible.6 By only two equally *6 5 739, (“If Gil v. (2004) Cal.Rptr.3d the Mansano 121 743 Cal.App.4th 420] See [7 contract, the the provision fee of present interpret not extrinsic evidence to the do the entitles whether contractual fee appellate determines de novo the attorney fees”). prevailing party to 6 contract, a a this involving of statute not In a somewhat different context the construction interpreta language yielded equally plausible problem faced a where the two division similar cases, truly (For resolving' conceding how difficulty a about while tions. comment the of such are, 1569, People (1989) Cal.Rptr. v. Weatherill they 1588-1589 Cal.App.3d [64 close see 215 Johnson, (dis. J.).) opn. of 298] 1130 we have elected margins to the construction adopt advocated this while
majority taken opinion, recognizing in the position dissenting reasonable, is opinion too. perfectly
Acosta contends claim under any arising Agreement— the Occupancy fees;—must for, a including claim arbitrated. be We ultimately conclude the oust agreement does not the trial court from adjudicate for fees as to Kerrigan’s request occurring before proceeding that Given judge. the trial court is deciding responsible the trial court also should compel responsible resolving be fees made in that for attorney connection with arbitration. The contract such be expressly contemplates might and, so, . if it required would be heard necessarily by not an arbitrator. judge contract, Although not an term express it a reasonable but appears admittedly inevitable that the forum authorized interpretation contract to decide a issue also given is authorized determine fee award any sense, associated its with and decision issue. hearing of that determination of whether and much be how awarded the prevailing is part parcel proceeding “ ‘ Moreover, arbitration. as has been observed frequently, “experienced best judge is the of the value of judge services rendered in professional ’ ”7 court.” To this court it makes more have the sense to who heard judge claim, too, the petition to arbitration decide the fee award rather than asking arbitrator come with a reasonable award up specifically to a related motion or she did not hear or decide. dissent, contrast, makes a but nonetheless reasonable contrary from the contract’s broad Our language. argues an colleague
arbitrator must resolve fees incurred in connection with arbitration because the arbitration clause states “[a]ny any of this dispute regarding Agree- ment” must be submitted to arbitration.8 The this dissent concludes broad language covers for fees issue here.
While breadth conceding defensible position logically, given the contract we adhere to the view. Whether or not a language, opposite arising under the controversy Occupancy Agreement subject to 7 Group, Cal.Rptr.2d PLCM Inc. Drexler Cal.4th P.2d 511]. 8 Italics added.
1131 Agree of also as a “dispute regarding [the] qualifies [an] arbitrator, court, must decide this type Yet the not an ment.” it is clear trial arbitration).9 the trial (in to Given connection with a compel arbitration, wé believe the also court must decide the to compel petition. made in connection with that same should decide a request to and hearing the fees is so related the closely Indeed for attorney request integral to be considered an reasonably decision of the as to a judicial of that under the contract is necessarily which even part proceeding Thus, breadth the contractual not an arbitral the despite proceeding. arbitrator, decision this all issues to language allocating by particular mentioned the award issue fall within only exception appears to the courts in order to the other attempt contract—a resort resist party’s with the clause.10 To this court it both consistent avoid arbitration appears to allow the contract as a matter of language preferable practical policy rather than an arbitrator to decide the fee award issue which is judge on the essentially proceeding part 11 decided by that trial judge.* THE AWARDED
H. TRIAL COURT PROPERLY ATTORNEY AS TO THE FEES PROCEEDINGS THE TO COMPEL ARBITRATION ON PETITION AT WHAT MAY BE AN INTERIM STAGE OF THE OVERALL PROCEEDINGS IN THIS CASE. orders, this court to reverse the Acosta also “there was no asserts urging valid invoked or the court for determination by [Kerrigan] authority Acosta cites Bell v. Farmers Insurance interim fee on motion.” ordinary 9 Cal.Rptr.2d 178] Chase v. 1157 Cal.App.4th Blue Cross of California court”). (“Enforcement question Of an arbitration Having sought argued Kerrigan petard. be on his own Acosta in effect should hoisted also succeeded, forum, not having to enforce as the should be proper argued by judicial improper entitled to award he have the fee issue decided forum was however, argument, against could be Acosta any type forum to hear issues. The same made all, it Kerrigan. effect next to After petard, perhaps to the he should be hoisted on his own Thus, argued by judge Acosta who all the be decided not an arbitrator. he issues should issue, not complain be heard to when one such forum, court. As has' been preferred appeal decided his the trial this resolved, decide argument which forum is to least who won over underlying petard it is the who remains aloft. step case has been allowed to off his while loser merely Kerrigan stated change our-opinion We are issue because persuaded this for fees could have been submitted to properly at oral he believed his right if had not to arbitration. waived Assuming Acosta had analysis issue. Incidentally, agree we with dissent’s on the'waiver fees—which we conclude did arbitrate right. that not—Acosta did not waive *8 1132
Exchange12 of his support position interim fee award at issue was here case, In that impermissible. the trial court made an interim award of attorney fees under Labor Code section “which gives employees right recover reasonable fees in attorney a successful suit for overtime compensa- tion.”13In whether the determining interim fee award after the plaintiffs made on prevailed summary adjudication as to one of the defendant’s defenses was permissible, Court of recited Appeal general “rule that each party must bear his or her own fees attorney unless contractual or provision statute otherwise.”14 The provides appellate concluded there no was clear intent” “expression legislative an interim fee award indicating authorized under that statute.15 particular
Here, the contractual at issue states a provision who is forced party to file arbitration of a under the arising Occupancy , Agreement may recover his fees incurred in making successful attorney petition. Acosta states no valid reason why Kerrigan have to wait until the end of the case to recover fees is entitled to by on prevailing virtue motion. specific is not Kerrigan to recover fees under attempting attorney provision an award of permitting fees to the party prevailing merits of a claim Rather, under the arising Occupancy Agreement.16 he is seeking incurred while contract, an enforcing independent of the fees to which he is entitled even if he loses the case on the merits in the arbitration. A who is entitled to party recover fees he or she incurred in making a successful discovery motion need not wait until the end case before fortiori, the claim for filing fees.17 A entitled to an interim fee award in this case where he has already prevailed independent proceeding in the contract. contemplated
The dissent with our interim agrees conclusion an fee award is permissible under the words, terms of the In other Occupancy Agreement. who party ón a prevails has an immediate to make a claim for the fees he incurred the trial court getting to move the to arbitration. But controversy should that why to wait party have fees, arbitrator to resolve the claim for as the dissent concludes? Kerrigan was forced to file a arbitration in the trial court in response to Acosta’s because Acosta complaint refused to abide a valid 12 Exchange Bell v. Farmers Ins. 87 Cal.App.4th Cal.Rptr.2d 805 [105 59]. 13 Bell v. Exchange, supra, Ins. Farmers Cal.App.4th 87 at page 829. 14 Exchange, Bell Farmers supra, Ins. Cal.App.4th page 87 at 830. 15 Bell Exchange, supra, v. Farmers Ins. Cal.App.4th 87 at page 833. 16 Lachkar, supra, Lachkar v. Compare Cal.App.3d page 182 (party. who filed successful arbitration was not entitled to interim award of because, incurred in connection with that under Civ. Code at the time the § made, award was prevailing pursuant statute”). “there was no to that 17 See Code of Civil Procedure section 2023.030.
clause in the We not believe also should Agreement. do be forced to file a claim in arbitration so that he can recover the fees separate *9 his successful arbitration before the incurred bringing petition decide claim for fees is court. an arbitrator this Having impractical decide the claim for inefficient. The trial court is in the best position fees—and the entitled fees—immediately successful to recover those party after the heard that in that court. judge party prevails reasons, we
For conclude the trial court awarded foregoing properly fees he incurred in the successful bringing arbitration.
DISPOSITION The orders fees and awarding respondent attorney denying appellant’s arbitration of the fees issue are affirmed. Respon- dent is entitled to recover his costs on appeal.
Perluss, J.,P. concurred. ZELON, J., While I concur Dissenting. conclusion that an majority’s interim award of fees is under the terms of this sought appropriately close, and concur that the agreement issue this case is presented by extremely court, I cannot conclude that this is a matter for the trial rather than the arbitrator. broad, language agreement this arbitration of “[a]ny requiring of this
dispute regarding any or an act which Occupancy Agreement has or would violate of this allegedly any provision Occupancy Agreement.” Indeed, court, at the trial that this could not respondent never asserted dispute be submitted to properly arbitration under the terms of the agreement; instead, he asserted that the failure of Acosta to to the trial court’s object reservation of after this court ordered the contractual jurisdiction submitted to arbitration was a waiver. He conceded at oral that argument matter would be but for claimed waiver. The of this arbitrable history not, however, case does of waiver. support finding First, court, made at the conclusion of in its reservation of jurisdiction, did not after we reversed denial of the hearing hear from to the of the fee either with party respect arbitrability filed, that had not been filed. After the request, yet request heard, the matter did not make that the had any finding to be that the of fees had been excluded from the agreed disputes question arbitrated; instead, it had reserved court relied on the fact that solely to Acosta’s hearing. that issue at the earlier opposition over which had been filed stay, prior arbitration and date, fees, a later did Kerrigan again to the but was not heard until hearing arbitrable, rather that that the matter was not but not argue had waived. arbitrate been (St. Agnes to establish a waiver defense is heavy. burden of proof
Medical Center v. (2003) 31 Cal.4th PacifiCare of California and the are not to be inferred lightly P.3d Cal.Rptr.3d 727] [“waivers waiver bears a burden of Courts proof’].) to establish a seeking heavy “ ‘ “(1) whether *10 a waiver claim: assessing consider a number of factors when arbitrate; (2) whether ‘the actions are inconsistent with the tight the party’s ‘were invoked’ and the substantially parties has been litigation machinery notified the well into of a lawsuit’ before the party opposing preparation arbitrate; either (3) intent whether a party requested of an before seeking date or for a delayed long period enforcement close to the trial (4) defendant arbitration filed a counterclaim seeking whether a stay; (5) ‘whether interven without for a asking stay important proceedings; of not avail discovery ing taking advantage judicial procedures steps [e.g., ‘affected, (6) whether the delay able in had taken place’; arbitration] ’ ” (Id. mislead, 1196.) A of showing p. or prejudiced’ opposing party.” (Berman v. to a waiver claim. some from the is essential delay prejudice 1359, Health Net 295].)1 (2000) 80 1364 Cal.Rptr.2d Cal.App.4th [96 the fee issue that should have asserted that Even if we were to find reserved, was has arbitrable at the where hearing so. “Prejudice from Acosta’s failure to do failed to demonstrate any prejudice means normally in the waiver of the context of in arbitration.” the other to. ability participate some impairment party’s .of (Groom v. Health Net (2000) Cal.Rptr.2d 82 1197 Cal.App.4th [98 836].) found where the petitioning party “For courts example, prejudice have information about the other side’s discovery gain used judicial process [citation]; where a party could not have been gained.in case that [citations]; the eve of to seek arbitration and waited until unduly delayed with the nature of the associated delays petitioning or where the lengthy (St. Agnes in evidence resulted lost litigate party’s attempts [citation].” 1204). None California, supra, Medical 31 Cal.4th at Center PacificCare of these factors are present here. hearing the benefits and of the trial majority correctly assesses efficiencies factor, significant I conclude it is While this is a cannot
fee motion rather than an arbitrator. to be determining disputes how were outweigh the choices made sufficient to resolved. This failure to show must be prejudice balanced our against strong public “ in favor
policy where regarding scope ‘[d]oubts arbitrable issues must be resolved in favor of arbitration’ Cabot & ”(Kennedy; Dealers, Co. v. National Assn. Securities Inc. 41 Cal.App.4th 66]). The to a broad arbitration Cal.Rptr.2d parties agreed provision, covering any asserted the dispute. Kerrigan, having breadth of that previously now, agreement, does not seek to limit its nor should he. doubt in scope Any this matter should be resolved favor of the arbitration to which the parties to the time the agreed arose. I prior dissent. Accordingly, respectfully