Arbitration: After Having An Arbitration Award Previously Vacated And Having A New Petition To Compel Arbitration Denied, $181,375 Fee And $42,828.88 Cost Awards Affirmed On Appeal

Appellate Court Found That Fee/Costs Awards Were Not Premature.

            In Borisoff v. The Pullman Group, LLC, Case No. B297162 et al. (2d Dist., Div. 1 Jan. 11, 2022) (unpublished), a substantial prior arbitration award was vacated, a lower court refused to grant a new motion to compel arbitration, and the lower court awarded the party fending off the arbitration award and motion $181,375 in fees and $42,828.88 in costs (many of which were arbitration costs).  The arbitration petitioning party challenged the awards as being premature and not within the scope of the contractual agreements between the parties.

            The 2/1 DCA affirmed.  Although acknowledging that there was no final judgment because the other side’s affirmative claims still existed, the appellate court found that the contractual clause between the parties was broad enough to allow for arbitration and post-arbitrations fees/costs because Borisoff forestalled arbitration.  In doing so, it relied on Marcus & Millichap Real Estate Inc. Brokerage Co v. Woodman Inv. Grp., 129 Cal.App.4^th 508, 514-515 to decide that Borisoff prevailed at the arbitration and post-arbitration stage. It also found that the arbitration expenses were recoverable based on the wording of the fees clause.

            BLOG OBSERVATION—The problem here is the appellate court’s resolution of the prematurity argument.  This same Division reached a contrary result in Roberts v. Packard, Packard & Johnson, 217 Cal.App.4^th 822 (2013), where there were remaining claims to be resolved.  Roberts was not even discussed in the opinion.