Arbitration: $237,607.25 Arbitrator Fee Award Affirmed Despite Some Ambiguity On How Fee Proceedings Were Handled

We Don’t Necessarily Agree With The Result In This One—But It Does Reflect Deference To Arbitrator Decisions.

            Bacall v. Shumway, Case No. B302787 (2d Dist., Div. 8 Feb. 18, 2021) (unpublished) is an interesting affirmance of an arbitrator’s award of attorney’s fees in the amount of $237,607.25.  Although we do not opine often on the merits of the decision, this one is where the result seems to be unfair based on some statements by the arbitrator on how fees would be handled.

            Here, the arbitrator tried to do “equal justice” in a case where there was an inactive attorney claiming legal expenses and other costs for performing services for a successful actor/screenwriter Michael Bacall.  The underlying merits are not what we are discussing.  However, what happened was that the merits prevailing party requested fees/costs in a post-hearing arbitration brief.  The other side sent an email to the arbitrator indicating that these requests usually trailed the merits determination, but also indicated an immediate response would be filed if the arbitrator wanted to proceed more quickly.  The arbitrator said this in a responsive email: “Consideration of attorney fees will not take place until the case is decided and a prevailing party is determined.  Anything submitted in that regard will not be read until then.”  Based on this, no response was filed to the fees/costs request, but the arbitrator still issued a final award with a finding that respondents prevailed and were awarded $237,607.25 in fees/costs.  The aggrieved side tried to submit an opposition to the fees/costs request, but this was rebuffed by the arbitrator based on issuance of a final award.

            The 2/8 DCA affirmed, giving deference to the final award by the arbitrator, although candidly conceding that “the arbitrator’s response was vague.”  We agree.  The appellate panel said the other side had to seek clarification, which he did not do.  However, c’mon here … why shouldn’t the other side rely on the arbitrator’s earlier response that there would be subsequent activities on the fees/costs issue.  This one smacks of unfairness to us.