Arbitration: Arbitrator’s Failure To Award Fees To Prevailing Party, Despite Mandatory Fee Clauses, Was Not Erroneous

 

You Agree To Arbitrate, You Take What The Arbitrator Gives You.

    Tenant winning an arbitration against landlord under a commercial lease, containing arbitration and attorney’s fees clauses, was miffed when the arbitrator also determined that each party was to bear its own costs and fees.  Tenant appealed in Setareh v. Bierer, Case No. B267426 (2d Dist., Div. 3 Sept. 9, 2016) (unpublished), but did not receive a different result.  Two California Supreme Court decisions previously determined that an arbitrator can deny fees, even under a mandatory fees clause because the merits of an arbitrator’s decisions is not reviewable.  (Moshonov v. Walsh, 22 Cal.4th 771, 776, 779 (2000); Moore v. First Bank of San Luis Obispo, 22 Cal.4th 782, 788 (2000).)  Put another way, you get what you get when you go to arbitration, with few exceptions—arbitrator can decide cases based on “rough justice, general equity” in many, many situations and there is nothing an aggrieved participant can do to overturn the result.