Appellate Court So Holds in Prior Case After a Rehearing.
In a prior post on October 13, 2010, we reviewed the case of Benjamin, Weill & Mazer v. Kors, Case No. A125732 (1st Dist., Div. 2), which was published but then erased from the books after the appellate court granted a rehearing on its own motion on October 26, 2010. Now, the same case has been republished, following rehearing, on May 5, 2011. No change in result, but another section added on an attorney’s fees issue.
Kors is interesting reading for those of you embroiled in any controversy involving mandatory fee arbitration versus contractual arbitration procedural rules. This one was a real mess on that issue, but the appellate court eventually held that a fee arbitration did proceed as if it was contractual so that wife was entitled to arbitrator disclosures, without which she was deprived of her important rights, requiring the reversal of a substantial adverse fee award in favor of her former attorneys.
However, wife was denied her request for an award of attorney’s fees for compelling arbitration in the first place, even though the arbitration agreement had a broadly worded fee clauses covering “enforcement of the agreement.” The appellate court reversed the fee denial, finding that her win on this separate issue did mean she prevailed for a fee award even though she might later lose at the merits stage of the arbitration. (See Acosta v. Karington, 150 Cal.App.4th 1124, 1130-1131 (2007); accord, Turner v. Schultz, 175 Cal.App.4th 974, 979-980 (2009).) The Kors panel did not find persuasive law firm’s reliance on Lachkar v. Lachkar, 182 Cal.App.3d 641, 648-649 (1986), which arose under a prior Civil Code section 1717 version that was narrower in scope than the present language. The appellate court also sided with Turner’s criticism of Lachkar, meaning that the win on the discrete compel issue satisified the prevailing party definition of section 1717.