Holding Somewhat Came to the Same Result as Watson v. Knorr, But Based On Uniquely Worded Settlement Agreement Fees/Cost Clauses.
“Like spectators at a sporting event with a beach ball, some litigators manage to keep an action bouncing along in the air indefinitely,” is the beginning sentence in De Sena v. Richert, Case No. C070461 (3d Dist. May 13, 2013) (unpublished). Although the first sentence alone is hard to beat, a trial court denied fees to a party winning an arbitration award–a determination affirmed on appeal.
Volleyball. Ansel Adams, photographer. 1943.
In this one, the parties entered into a settlement agreement before a mediator who, pursuant to the parties’ stipulation, agreed to act as an arbitrator over any dispute about the terms in the settlement agreement. There were some fees clauses, but they were limited and peculiar in nature, most of them allowing the arbitrator to fix costs and fees.
Plaintiff moved to confirm the mediator ruling on the settlement agreement as an arbitration award and judgment, which the trial court did do. Plaintiff then filed a fee request of $56,865.23 (although spending more than $151,000 and providing no explanation for the allocated fee request). The basis was CCP § 1293.2, which allows judicial confirmation proceeding fee/costs-shifting to the litigant successfully confirming an arbitration award. The trial court denied the fee request based on setttlement agreement clauses stating that the arbitrator was the one to determine arbitral fees and nothing in the settlement agreement dealt with court action fees.
The appellate panel affirmed based on the particular wording of the settlement agreement provisions making clear that enforceability and interpretation issues still resided with the arbitrator, such that the failure to involve the arbitrator was fatal to the legal fees request.
