De Sena v. Richert
Filed 5/13/13 De Sena v. Richert CA3CA3
NOT TO BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF
THIRD APPELLATE DISTRICT
(Nevada
----
JO ANN M. De SENA,
Plaintiff and Appellant,
v.
JOSEPH RICHERT,
Defendant and Respondent.
C070461
(Super. Ct. No. 77395)
Like
spectators at a sporting event with a beach ball, some litigants manage to keep
an action bouncing along in the air indefinitely. This is an appeal from the denial of a
motion for legal fees incurred in the course of confirming the ruling of a
mediator acting as an arbitrator, involving a settlement reached in the course
of mediation of an underlying action. We
shall affirm the trial court’s order denying the legal fees.
FACTUAL AND PROCEDURAL BACKGROUND
The facts
of the underlying dispute between the parties, who are neighboring property
owners, are irrelevant to this appeal.
While there are hundreds of pages in the joint appendix (and its
augmentation), the pertinent facts are few.
Plaintiff
Jo Ann M. De Sena and defendant Joseph Richert executed a
underlying action in the presence of a mediator.
settlement agreement, to which defendant raised repeated objections. Pursuant to the draft settlement, the
mediator sat as an arbitrator over the dispute about the provisions of the
proposed formal settlement.
name="_ftnref2" title="">[2] In a January 2011 ruling,
the mediator concluded that the proposed formal settlement agreement conformed
to the draft settlement, with the exception of a minor provision.
than to state “All claims for attorney fees and costs in this mediation,
arbitration or action shall be made pursuant to noticed motion or as otherwise
provided by law.†In March 2011, the
parties jointly dismissed the underlying action with prejudice.
Plaintiff
filed an amended petition to confirm the ruling as an arbitration award. On motion of plaintiff, the trial court
issued an order confirming the award and entered judgment for plaintiff on October 5, 2011. Defendant filed a motion to vacate the
judgment.
Meanwhile,
plaintiff filed a memorandum of costs
claiming legal fees pursuant to a noticed motion. In her motion, she contended entitlement to
legal fees pursuant to Civil Code section 1717 and Code of Civil Procedure
section 1293.2 as a prevailing party on a contract providing for the recovery
of legal fees. Plaintiff’s attorney
asserted his reasonable hourly rate was $400; he designated $56,865.23 of his
total bill of $151,520 as attributable costs of suit (without explaining the
manner in which he derived that rather specific figure).
Plaintiff
identified the contract as the settlement agreement. The draft settlement had provided “Each side
[was] to bear their [sic] own
attorney fees and costs of suit.†It
also provided, however, that “[t]
to any party deemed to prevail on the submitted
issues [related to the enforceability and interpretation of this agreement]
in the sole judgment of the arbitrator.â€
(Italics added.) The formal
settlement agreement, in somewhat different language, also provided that “all
parties herein agree that they . . . shall . . . be solely
and exclusively responsible for their own costs and attorney’s fees, whether
arising from contract, tort, [or] statute or otherwise,†except that in “all
disputes related to the enforceability and interpretation of this agreement[,]
[t]he [a]
deemed to prevail on the submitted issues
in the sole judgment of the arbitrator.â€
(Italics added.)
The trial
court denied defendant’s motion to vacate the judgment without
elaboration. The trial court concluded
that the provision for the award of legal fees in any dispute over enforcement
of the settlement agreement reserved that decision for the arbitrator to make in
arbitration proceedings, and did not otherwise provide for legal fees
generally in any court action to
enforce an arbitration award or give a court
the authority to award legal fees. It
thus denied plaintiff an award of legal fees without prejudice to any
application to the arbitrator for an award of fees. Plaintiff filed a timely notice of appeal.
DISCUSSION
Focusing
strictly on Code of Civil Procedure section 1293.2,
plaintiff asserts she is the prevailing party and therefore an award of
her legal fees as costs is mandatory on the grant of her petition to
confirm. That is true, however, only
where an award of legal fees is authorized
by contract within the meaning of section 1033.5 of this code. (Marcus
& Millichap Real Estate Investment Brokerage Co. v. Woodman Investment
Group (2005) 129 Cal.App.4th 508, 513 (Marcus); Corona
701, 707 (Corona);
Carole Ring & Associates v. Nicastro
(2001) 87 Cal.App.4th 253, 260 (Carole
Ring).) The central question in this
appeal, therefore, is whether the scope of
the legal fee provision in the draft settlement included authorization for an award of legal fees in judicial
proceedings enforcing the mediator’s ruling in connection with the draft
settlement. Plaintiff does not engage
this question at all in her opening brief as anything other than a settled
point. Defendant on his part simply
asserts over and over that a contract did not even exist between the parties,
ignoring both plaintiff’s express reliance on the draft settlement (both in the
trial court and on appeal) and the fundamental principle that
Christian Church v. All World Mission Ministries (2012)
211 Cal.App.4th 1115, 1123.) We are
thus left to undertake our task of interpreting the provisions of the draft
agreement de novo (id. at
pp. 1123-1124) without any assistance from the parties.
Because
defendant emphasizes the point, we note it is immaterial that the mediator did
not identify a prevailing party or award legal fees. Even where an arbitrator omits the issue of
legal fees incurred during arbitration proceedings or expressly refuses to
award them—neither circumstance being subject to judicial review (
trial court to decide independently whether a party is entitled under a
contract to legal fees in a postarbitration judicial proceeding to enforce an
award, assuming the arbitrator did not expressly construe the provision for
legal fees to the contrary. (
provision for legal fees in any
litigation, arbitration, or other legal proceeding arising between parties];
conceded that contract authorized award]; Carole
Ring, at pp. 256, fn. 2 [contractual provision for award of legal fees
authorized in any action, proceeding,
or arbitration arising out of agreement], 260-261.)
The
intent reflected in the terms of the draft (and formal) settlement agreements
was for the parties to bear their own costs and legal fees except in matters relating to the enforceability and interpretation
of the settlement agreement (undoubtedly as a way to avert any subsequent
truculence about settling the dispute).
This exception, however, is limited to issues of enforceability and
interpretation submitted to the mediator
for binding arbitration, as to which the mediator possesses sole discretion
to award costs or legal fees. As the
trial court correctly recognized, this is not the equivalent of the customary
provision allowing for the award of legal fees in any action on a contract, such as in Marcus or Carole Ring. Plaintiff does not provide any authority that
involves language equally limited as in the present case. We therefore conclude the trial court was
correct in denying an award of legal fees to plaintiff.
DISPOSITION
The
judgment is affirmed.
BUTZ , J.
We concur:
BLEASE ,
Acting P. J.
NICHOLSON , J.
name="_ftn1" title="">[1] Although neither party discusses the point,
the mediation confidentiality agreement provided that any settlement agreement
resulting from the mediation was admissible evidence in any action to enforce
its terms, and it is thus properly before us.
(Provost v. Regents of
201 Cal.App.4th 1289, 1305.)
name="_ftn2" title="">[2] The draft settlement provided, “Each side
agrees that the mediator, sitting as a binding arbitrator, will decide all
disputes related to the enforceability and interpretation of this agreement,â€
no doubt premised on the mediator’s presence and participation in connection
with the settlement.
