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Jo Ann M. De Sena v. Joseph Richert


May 13, 2013


(Super. Ct. No. 77395)

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

De Sena v. Richert



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


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 legal fees without prejudice to any application to the arbitrator for an award of fees. Plaintiff filed a timely notice of appeal.


Focusing strictly on Code of Civil Procedure section 1293.2,*fn5 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 v. Amherst Partners (2003) 107 Cal.App.4th 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 settlement agreements are contracts. (Canaan Taiwanese 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 (Corona, supra, 107 Cal.App.4th at pp. 706-707; see Carole Ring, supra, 87 Cal.App.4th at p. 259, fn. 5)--it is for a 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. (Marcus, supra, 129 Cal.App.4th at pp. 513-514, 516 [contractual provision for legal fees in any litigation, arbitration, or other legal proceeding arising between parties]; Corona, at p. 707 [the defendants 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*fn6 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.


The judgment is affirmed.

We concur: BLEASE , Acting P. J. NICHOLSON , J.

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