Sixth District Honors Parties’ Stipulation Relating to Fee Recovery.
In Kontoudakis v. Beri-Scott Co., Case No. H034544 (6th Dist. May 24, 2010) (unpublished), the parties’ stipulation for arbitration had an important fee recovery provision. That provision stated: “Should either party be forced to seek enforcement of the arbitration award beyond simply filing it with this court, they shall be entitled to an award of all costs, fees and expenses including attorneys’ fees to be paid by the party against whom enforcement is ordered.” So, does this encompass attorney’s fees incurred when prevailing on appeal for purposes of enforcing the arbitration award?
You bet, said the Sixth District in Kontoudakis.
The party prevailing on appeal is entitled to recover costs on appeal, including attorney’s fees, a situation no less compelling in an arbitration context and pursuant to the parties’ own stipulation. (See Marcus & Millichap Real Estate Investment Brokerage Co. v. Woodman, 129 Cal.App.4th 508, 514 (2005); Corona v. Amherst Partners, 107 Cal.App.4th 701, 707 (2003); Carole Ring & Associates v. Nicastro, 87 Cal.App.4th 253, 260-261 (2001).)
The cause was remanded to have the trial court determine the fees for work incurred on appeal, which coincides with what we have seen in most cases. After all, appellate courts desire the lower courts to make factual determinations on fee substantiation, reasonableness, etc. (See, e.g., Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., 129 Cal.App.4th 1228, 1267 (2005).)