(Super. Ct. No. TCV0001479) APPEAL from a judgment of the Superior Court of Placer County, Trilla Bahrke, Court Commissioner. Dismissed.
The opinion of the court was delivered by: Robie , J.
CERTIFIED FOR PUBLICATION
After this court in an earlier writ proceeding directed the trial court to enter an order denying a petition to compel arbitration filed by plaintiff Fleur du Lac Estates Association (the Association) (see Mansouri v. Superior Court (2010) 181 Cal.App.4th 633, 643), defendant Zari Mansouri sought attorney fees and costs from the Association on the theory that she was the prevailing party in the proceeding to compel arbitration. The trial court concluded that Mansouri's fee motion and costs memoranda were untimely. Mansouri moved for reconsideration and, in the alternative, for relief under Code of Civil Procedure*fn1 section 473, subdivision (b) (section 473(b)) based on excusable mistake. The trial court denied that motion, too.
On Mansouri's appeal from the order denying her motions for reconsideration and for relief under section 473(b), we conclude the order is not appealable.*fn2 As Mansouri appears to recognize, the only way the order could have been appealable would have been as an order after final judgment under subdivision (e) of section 1294 (part of the California Arbitration Act) (§ 1280 et seq.). But for that to be the case, the order denying the Association's petition to compel arbitration that this court directed the trial court to enter would have had to be the equivalent of the final judgment in this proceeding to compel arbitration. It was not. As we will explain, our decision in the earlier writ proceeding left open the possibility that the Association could file another petition to compel arbitration of the same dispute, which the Association did. Because that petition was granted, and because the trial court retains jurisdiction in this proceeding to enter and enforce any resulting arbitration award, the proceeding remains unresolved. Because the order denying the Association's first petition to compel arbitration did not put an end to the proceeding, that order cannot be considered the equivalent of a final judgment, and therefore none of the orders that followed -- including the order Mansouri purports to appeal -- is appealable as an order after final judgment. Additionally, we decline Mansouri's request to treat this appeal as a writ petition. Accordingly, we will dismiss Mansouri's appeal as being from a non-appealable order.
FACTUAL AND PROCEDURAL BACKGROUND*fn3
Mansouri owns a condominium unit within Fleur du Lac Estates at Lake Tahoe. The Association is the homeowners' association for the development, and Mansouri is a member of the Association.
In December 2006, Mansouri submitted an application to the Association's architectural control committee to remodel various parts of her condominium, including the patio. In July 2008, after the remodeling was complete, the Association notified Mansouri that the patio improvements did not conform to the plans the committee had approved. The Association requested that Mansouri remove the nonconforming patio improvements. She refused.
In September 2008, the Association requested that Mansouri agree to submit the dispute to binding arbitration before a single arbitrator selected by the Association and threatened court action if she did not do so. When Mansouri refused, the Association commenced this action by filing a petition to compel arbitration under an arbitration provision contained in the second restated declaration of covenants, conditions and restrictions for the Association (CC&R's). That provision provides that any dispute between the Association and an owner about the meaning or effect of any part of the CC&R's will be settled by binding arbitration before a three-member panel of arbitrators, with one arbitrator selected by the Association, one selected by the owner, and the third selected by the other two.
The trial court granted the Association's petition to compel arbitration and awarded the Association attorney fees. (Mansouri v. Superior Court, supra, 181 Cal.App.4th at p. 636.) Mansouri sought relief in this court by means of a petition for a writ of mandate. (Ibid.) "We granted an alternative writ . . . to consider (1) whether the arbitration provision in the CC&R's [wa]s unenforceable and unconscionable; (2) if the arbitration provision [wa]s valid, whether this dispute f[ell] outside of the scope of the arbitration provision; and (3) whether the Association complied with the applicable statutory requirements for a petition to compel arbitration. We conclude[d] the arbitration provision [wa]s enforceable, [wa]s not unconscionable, and [wa]s applicable. However,
in the published portion of [our] opinion, we [also]
conclude[d] a party seeking to compel arbitration under . . . section 1281.2 . . . must establish it demanded arbitration under the parties' arbitration agreement and that the other party refused to arbitrate under the agreement before it is entitled to an order granting a petition to compel such arbitration. As the Association . . . failed to show it requested Mansouri to arbitrate under the arbitration provision of the CC&R's and that Mansouri refused to arbitrate under such provision, [we concluded the Association's] petition to compel such arbitration should have been denied. [Accordingly, w]e . . . issue[d] a writ of mandate requiring the trial court to vacate its order compelling arbitration and awarding attorney fees and to enter a new order denying the Association's petition." (Id. at pp. 636-637) We also awarded Mansouri her costs on appeal. (Id. at p. 643.)
Following our decision in the writ proceeding, in May 2010 Mansouri filed in the trial court a memorandum of costs on appeal seeking $1,522.44 in appellate costs, a memorandum of costs seeking $350 in trial court costs, and a motion for $209,075.14 in attorney fees under two attorney fees provisions in the CC&R's. Mansouri sought the award of attorney fees on the theory that she was "the prevailing party in this suit."
The Association moved to strike Mansouri's costs memoranda and opposed her fee motion. Among other things, the Association argued that Mansouri's request for her fees and costs was untimely and she was not the prevailing party because this court's ruling "guarantee[d] resolution [of the dispute] via three-panel arbitration," which the Association claimed it "had sought since the commencement of these proceedings."
In January 2011, the trial court agreed with the Association that Mansouri was too late in filing her costs memoranda and her fee motion and on that basis granted the Association's motion to strike the memoranda and denied Mansouri's motion for fees. Mansouri did not appeal from that order; instead, she filed a motion for reconsideration under ...