#1: Post-Rejection Suit After Nonbinding Award Must Signal Award Rejection and Request for Trial De Novo; If Not, the Nonbinding Award May Become Binding.
Kessinger v. Pepper, Case No. D057680 (4th Dist., Div. 1 July 28, 2011) (unpublished) is a very important decision for litigants rejecting a non-binding arbitration award made in an arbitration under the Mandatory Fee Arbitration Act (MFAA). What essentially happened is that a losing litigant in a non-binding MFAA arbitration did timely file a post-rejection complaint, but (and you know what happens when you see a but) the complaint did not mention the arbitration, the award, or a de novo trial request. Legal boo-boo. The arbitration, rejected award, and new trial need to be mentioned in the complaint (Shiver, McGrane & Martin v. Littell, 217 Cal.App.3d 1041, 1045 (1990); see also Jud. Council of Cal. Forms ADR-104, ADR-105.) That meant that the appeal of the non-binding award was not timely made, so that the non-binding award was fully enforceable.
#2: Winning Client in MFAA Arbitration Not Entitled to Attorney’s Fees and Costs In Post-Arbitration Confirmation Battles, Because There Was No Trial After Arbitration–the Missing Predicate For An Award.
Client in Isaacson v. Maatuk, Case No. B224217 (2d Dist., Div. 2 July 28, 2011) (unpublished) must have felt pretty good. After all, he filed a MFAA petition to resolve a fee dispute with his former trial attorneys, winning $112,155 plus interest based on what client apparently deserved from a settlement in a contingency case (at least from the arbitral perspective). The arbitration award eventually was confirmed to judgment, with client seeking to recoup $19,662.50 in fees and $1,422.66 in costs under Business and Professions Code section 6204(d)–which allows a prevailing party in a post-award rejection trial to obtain fees and costs in the court’s discretion. The trial court denied fees, finding no entitlement because there was no trial after the arbitration. The reviewing court affirmed. Even though there were post-arbitration confirmation battles, any determination in them was not the equivalent of a trial, but only an evaluation of whether a new trial should proceed. The statute was clear, and the appellate court was not going to rewrite it despite client’s policy arguments to the contrary.