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Jo Ann M. De Sena v. Joseph Richert

May 13, 2013

JO ANN M. DE SENA, PLAINTIFF AND APPELLANT,
v.
JOSEPH RICHERT, DEFENDANT AND RESPONDENT.



(Super. Ct. No. 77395)

The opinion of the court was delivered by: Butz , J.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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 written draft settlement of the underlying action in the presence of a mediator.*fn1 Plaintiff's attorney prepared a formal 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.*fn2 In a January 2011 ruling,*fn3 the mediator concluded that the proposed formal settlement agreement conformed to the draft settlement, with the exception of a minor provision.*fn4 The ruling did not address legal fees other 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]he arbitrator may assess fees and costs 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." (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]rbitrator may assess costs to any party deemed to prevail on the submitted issues in the sole judgment of the arbitrator." (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 ...


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