Fee Request Can Be Renewed If Someone Prevails, With Appellate Court Distinguishing Or Criticizing Other Decisions Suggesting Otherwise.
In Chan v. Delta Dental of California, Case No. A139739 (1st Dist., Div. 4 Feb. 17, 2017) (unpublished), Plaintiff successfully thwarted a defense motion to compel arbitration and then moved to recover her fees for success, with the lower court denying the fee request without prejudice to Plaintiff seeking attorney’s fees at the conclusion of the case. Plaintiff was unhappy, appealing the ruling but getting no further satisfaction at this juncture of the case.
The 1/4 DCA decided that the fee denial was not appealable, so that Plaintiff’s appeal was dismissed.
The fundamental problem in this appeal was that the matter was not concluded on the merits and was in a procedural context where there was no basis to conclude that a discrete proceeding had concluded in Plaintiff’s favor, which distinguished many cases cited by Plaintiff to the contrary. The closest decision that Plaintiff cited to a possible victory on appeal was Benjamin, Weill & Mazer v. Kors, 195 Cal.App.4th 40 (2011). However, the reviewing court found that the appealability issue was not addressed in Kors, augmented by other appellate courts criticizing Kors for the notion that a petition to compel arbitration in an ongoing case should be considered a “discrete proceeding” deserving of fee recovery.