Post-Arbitration Fees and Judgment Enforcement: Court Of Appeal Considers Some Interesting Fee Award Appellate Challenges In These Two Areas

 

Sixth District Likes Trial Court’s Rulings Across the Board on Fee Issues.

     In Exatron, Inc. DiFrancesco, Case No. H033094 (6^th Dist. Dec. 9, 2009) (unpublished), plaintiff’s prior attorney’s fees and costs award from a contractual arbitration against defendant were affirmed in a prior appellate decision. Nine months later, plaintiff filed for supplemental fees and expenses of $105,919 to confirm the arbitration award, enforce the judgment, and defend the appeal. Ultimately, the trial court determined that plaintiff was only entitled to recover $42,195 in attorney’s fees incurred in enforcing the judgment (the confirmed arbitration award), denying in the process plaintiff’s Code of Civil Procedure section 473 mandatory and discretionary motions to allow the other supplemental fees and expenses.

     Both sides appealed; both sides lost.

     In an interesting 3-0 panel decision penned by Acting Presiding Justice Bamattre-Manoukian, the Sixth District made these determinations:

• Plaintiff’s post-confirmation attorney’s fees were governed by the fee motion deadlines in California Rules of Court, rule 3.1702 (former rule 870.2), not some longer time period claimed by plaintiff;
• Plaintiff’s appellate fees were governed by CRC, rules 3.1702(c) and 8.278(c)(1), namely, filing a fee motion and costs memorandum within 40 days after the clerk sends notice of the issuance of a remittitur;
• Plaintiff’s counsel’s mandatory 473 motion did not work, because it only applies to defaults, default judgments, or dismissals, not merits-type determinations such as a fee ruling or summary judgment decision (Huh v. Wang, 158 Cal.App.4^th 1406, 1418 (2007) [refusing to limit Huh to just summary judgment determinations]);
• Plaintiff’s discretionary 473 motion lacked merit, because the attorney error in filing for fees was not excusable, involving decision making on an issue that was not that complex or debatable in nature; and
• Plaintiff’s judgment enforcement fees were properly awarded because the underlying judgment “implicitly” awarded fees to plaintiff, the judgment creditor, even though there was no express award under CCP section 1033.5(a)(10)(A) (Code Civ. Proc., sec. 685.040).

     BLOG UNDERVIEW—The Sixth District’s reasoning on the judgment enforcement fees was mimicked recently in an unpublished decision by the Fourth District, Division 1. In DiCara v. Cahuilla Band of Indians, Case No. E047529 (4^th Dist., Div. 2 Dec. 10, 2009) (unpublished), the Court of Appeal concluded that a confirmed judgment of an arbitration award—one containing an award of fees and costs by the arbitrator--qualified for post-judgment enforcement fees under section 685.040.