Arbitrator’s Consideration of 998 Offer After Close Of Evidence Did Not Alter The Result.
In Hartzler v. 110 Management, Inc., Case No. B290134 (2d Dist., Div. 4 June 12, 2019) (unpublished), property manager of Amy Lee Hartzler, who co-founded the rock band Evanescence, sued for alleged unpaid commissions under a management agreement with a mandatory arbitration provisions and a mandatory attorney’s fees/costs provision in favor of the prevailing party. The matter proceeded to arbitration and, after the close of evidence, Ms. Hartzler disclosed a CCP § 998 offer for $100,000. Property manager only won $4,833.66 in unpaid commissions, a tiny fraction of amounts claimed as owing, with the arbitrator deeming Ms. Hartzler to be the prevailing party. She won $1,036,773.68 in fees and costs under the fees clause. The lower court confirmed the arbitration award.
Property manager, obviously “mad as a wet hen,” appealed. Didn’t work. The appellate court, in line with the lower court, believed that property manager was challenging the merits of the arbitrator’s rulings, something that is generally unreviewable (and was unreviewable here). On the 998 issue, Mr. Hartzler’s disclosure of the 998 offer after the close of evidence did not affront section 998, which only indicates that the offer “cannot be given in evidence upon the trial or arbitration.” It also found that Heimlich v. Shivji, the Second District appellate district recently reversed by the California Supreme Court (see our May 30, 2019 and May 31, 2019 posts), did not dictate a contrary result. Substantial fee/costs award affirmed.
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