However, Arbitrator Determined One Homeowner And HOA Prevailed, Hence The Awards.
In this category, we have posted on many homeowner disputes where one side prevailed and obtained substantial fee awards under CC&Rs and the Davis-Stirling Act’s fee-shifting statute. We also have posted on where both sides went away empty on fees because an arbitrator or trial judge found no one prevailed. Well, here is another one that falls within category number one.
Zokaei v. Mansoir, Case No. A167365 et al. (1st Dist., Div. 3 Aug. 20, 2024) (unpublished) involved noise disputes between downstairs and upstairs condominium owners where there was a CC&R initial provision allowing for fee recovery in a civil action and later amended through a CC&R provision providing for mandatory arbitration of these disputes. The parties, including HOA which was added to the dispute, had dueling demands and cross-demands on noise issues, with all parties praying for recovery of fees in their arbitration pleadings. The arbitrator denied all parties’ arbitration claims, but the arbitrator determined one of the homeowners and the HOA prevailed. After confirmation of the arbitration awards by the superior court, judgments were entered, in total, for the one homeowner/HOA and against the losing homeowner for $460,573.95.
The fee awards were affirmed, after a scholarly discussion of fee principles relating to arbitrator fee awards. First, all parties prayed for fees such that this issue was “teed up” for arbitrator determination. Second, AAA arbitration rules allow for fee recovery where all parties requested it and the law allows, the case here. Third, the CC&R arbitration amendment allowed for recovery of fees—such that even if this interpretation of the contractual provision was erroneous, it was not reviewable under Moshonov. Fourth, the term “civil action” in the original CC&R provision might be rationally interpreted to include arbitration, especially where other amendments referred to arbitration.
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