Third District Distinguishes Otay River In The Process.
Here is one for all of you procedural buffs, involving a dismissal of an appeal of a motions for reconsideration/473 relief of a fee request denial after the appellant beat back a motion to compel arbitration. The problem here was that the earlier motion to compel arbitration denial did not preclude a future motion, which was granted, such that any fee determination would have to await what happens in a judgment based on more subsequent events.
Fleur du Lac Estates Assn. v. Mansouri, Case No. C068693 (3d Dist. Apr. 23, 2012) (certified for publication) involved a situation where defendant/homeowner/appellant sought to recover fees/costs for prevailing in an earlier proceeding to compel arbitration against HOA about alleged nonconforming patio improvements which were subject to HOA removal demands. Appellant moved to recover $209,075.14 in attorney’s fees after winning an earlier writ proceeding by which HOA’s motion to compel was denied. The trial court found the fee motion/costs memo to be untimely, further denying a motion for reconsideration and CCP § 473(b) (mistake/excusable neglect) relief. That prompted appellant’s appeal from the reconsideration and § 473 denials.
Appellant’s appeal was dismissed.
The Third District essentially determined that the matter was not conclusively determined for fee purposes, even on a finite basis, so as to allow for appealability of the fee denial at this stage. HOA did file a second petition to compel arbitration, which was granted because it did produce the proof missing from the first showing. Even though there was an argument to be made as to whether contractual arbitration statutes or general appellate statutes applied, the Court of Appeal concluded that the reasoning under the applicable general appellate jurisdictional statutes could have equal force to cases like the one before it. It found that cases like Otay River Constructors v. San Diego Expressway, 158 Cal.App.4th 796, 803 (2008) were distinguishable because the order before it was not final on the issue of whether arbitration between the parties could be compelled. (In Otay River, the petition to deny arbitration was grounded on the fact that the claims arose out of an agreement only allowing for litigation of disputes–final, no further issues remaining as far as compelling arbitration was concerned.)
However, to make sure that appellant had some comfort, the appellate court confirmed that appellant would be able to challenge the fee denial later down the line, on appeal from any final judgment entered in the proceeding. (Benjamin, Weill & Mazer v. Kors, 195 Cal.App.4th 40, 80 (2011).) So, ultimate solace went to appellant, allowing her to try again for fees once the final battle was won–despite the apparent substantial expenditure of resources by both sides even up to this juncture of the case.
For further comments on the arbitration aspects of the case, check out the post on California Mediation and Arbitration.