Cases: Arbitration

Arbitration/Prevailing Party: Only One Prevailing Party For Civil Code Section 1717 Purposes Under One Contract After Exhaustion Of Arbitration Proceedings

Cases: Arbitration, Cases: Prevailing Party

  Parameters of “Discrete Win” Doctrine Probed, With Interim Wins On Petitions To Compel Arbitration Not Determining Eventual Winner Unless Discrete Proceeding Ended Matter.      Frog Creek Partners, LLC v. Brown, Case No. A129651 (1st Dist., Div. 5 May 24, 2012) (certified for publication) is a scholarly opinion considering, in a two party-one contract context […]

Arbitration/Consumer Statutes: Waiver Of Attorney’s Fees Recovery In Residency Arbitration Provision Was Against Public Policy

Cases: Arbitration, Cases: Consumer Statutes

  Fee-Shifting Provision in Elder Abuse Law Vetted An Important Public Policy.      The Fifth District in Bickel v. Sunrise Assisted Living, Case No. F062443 (5th Dist. May 21, 2012) (certified for publication) involved a plaintiff suing defendant assisted living facility for elder abuse. Plaintiff entered into a residency agreement with an arbitration clause, with

Arbitration: Parties Waived Right To Return To Arbitration When Failing To Reach A Resolution With Other Parties On Payment Of Nonpaying Parties’ Portion Of Arbitrator Fees

Cases: Arbitration

       In Cinel v. Christopher, 203 Cal.App.4th 759 (2012), the Second District, Division 1 affirmed a trial court’s order refusing to confirm as an award the arbitrator’s termination of the action for nonpayment of fees of several of the defendants. One party returned to the trial court to compel arbitration, arguing he had paid

Arbitration/Estoppel: Judicial Estoppel Puts The Kabosh On Appeal Claiming Fees Clause Did Not Cover Fees Incurred In Court Proceedings To Confirm Arbitration Award

Cases: Arbitration, Cases: Estoppel

  Court of Appeal Was Not Pleased With Appellant’s Inconsistent Positions.       Judicial estoppel is an equitable doctrine aimed at preventing litigants from taking two totally inconsistent positions in different phases of litigation–or prevent “playing fast and loose” with the judicial system or “gaming the system” by taking such inconsistent positions. (Uhrich v. State Farm

Arbitration/Prevailing Party/Section 1717: Prevailing Party On Sole Contract Claim Entitled To Fees

Cases: Arbitration, Cases: Prevailing Party, Cases: Section 1717

  “Each Side Bear Own Costs” Appellate Directive Did Not Bar Later Fee Request.      Tenzera, Inc. v. Osterman, Case No. B228189 (2d Dist., Div. 3 Apr. 19, 2012) (partially published; fee discussion not published) presented a situation where, after remand from a prior appellate opinion in the same case, a trial court denied attorney’s

Arbitration: Postarbitration Attorney’s Fees Are Available For Party Enforcing Arbitration Award, Even If Prearbitration Fees Denied By Arbitrator

Cases: Arbitration

    One Can Prevail For Purposes of Getting Postarbitration Fees Even If the Arbitrator Awarded No Fees For Arbitration Work.        Justice Ikola, on behalf of a 3-0 panel in Toal v. Tardif, Case No. G044823 (4th Dist., Div. 3 Mar. 29, 2012) (unpublished), drew an important distinction for parties involved in arbitration:

Arbitration/Costs/Res Judicata/Retention Agreements: Fee Award Against Losing Party In Arbitration Not Binding On Attorney-Client In Subsequent Quantum Meruit Lawsuit

Cases: Arbitration, Cases: Quantum Meruit, Cases: Retainer Agreements

  However, Attorney Did Prevail in Lawsuit, So Costs Should Have Been Awarded.      Attorney sued a former client in a dispute over attorney’s fees for services provided in an arbitration. Attorney, who replaced another attorney in an owner-contractor construction defect dispute, did win a $1,034,297, plus $40,125 attorney’s fees, award from an arbitrator, although

Arbitration/Costs/Section 998: Where Arbitration Submission Agreement Is Broad, Seek Winning 998 Enhancements From Arbitrator, Not Just The Court

Cases: Arbitration, Cases: Costs, Cases: Section 998

  Denial of 998 Cost Enhancements Was Not Improper.      Maaso v Signer, Case No. B228314 (2d Dist., Div. 2 Feb. 7, 2012) (certified for publication) is one of those lessons for all of us practitioners who arbitrate to take to heart–make sure you check the arbitration submission agreement for breadth of issues, meaning that

Arbitration/Employment: Contractual Arbitration Clause Invalidated, Among Other Things, Because Attorney’s Fees Granted To Mere Prevailing Party On FEHA Claims

Cases: Arbitration, Cases: Employment, Cases: Unconscionability

  Employee Won Substantive Unconscionability Argument Based on Absence of Frivolousness Requirement for Employer FEHA Fee Recovery.      Normally under FEHA, a prevailing defendant (usually, an employer) can only recoup fees if it proves that plaintiff employee’s claims were frivolous, unreasonable, without foundation, or brought in bad faith. What happens when an employer inserts an

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