“Each Side Bear Own Costs” Appellate Directive Did Not Bar Later Fee Request.
Tenzera, Inc. v. Osterman, Case No. B228189 (2d Dist., Div. 3 Apr. 19, 2012) (partially published; fee discussion not published) presented a situation where, after remand from a prior appellate opinion in the same case, a trial court denied attorney’s fees requests to a contractual prevailing party in arbitration proceedings and based on pursuing a previous appeal based on two grounds: (1) the appellate court directive in the earlier matter denying costs on appeal was determinative of the fee request; and (2) defendants did not prevail.
The appellate court reversed. “Each side bearing own costs” language in the previous appellate opinion did not determine who should bear their own attorney’s fees on appeal. The Court of Appeal cited Mustachio v. Great Western Bank, 48 Cal.App.4th 1145, 1149-1150 (1996) for this proposition, which is also supported by Butler-Rupp v. Lourdeaux, 154 Cal.App.4th 918, 925-928 (2007). Also, defendants did obtain an unqualified victory in defensing the contract cause of action in the arbitration proceedings, entitling them to fees. (Civ. Code, § 1717; Scott Co. v. Blount, Inc., 20 Cal.4th 1103, 1109 (1999).) So, the matter goes back to have the lower court reconsider defendants’ request for more than $124,000 in fees to pursue the prior appeal. (The appellate court did cite Butler-Rupp for the lower court’s “broad discretion” to award reasonable attorney’s fees.)
BLOG UNDERVIEW – Co-contributor Marc, in his California Mediation and Arbitration blog (which you can hyperlink to on our home page), has posted a commentary on the arbitration aspects of this opinion, including whether prejudgment interest accrues while the arbitration result is pending on appeal – an issue of first impression in California.