Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. CV 994835
Pollak, J.
This court previously affirmed a judgment confirming an arbitration award in favor of Kenneth Massa, doing business as Massa Construction Company, a home builder, against Allen Ruskin, for whom Massa had constructed a home. The judgment included attorney fees of $262,385, representing fees awarded by the arbitrator plus additional fees incurred in the post-arbitration proceedings in the trial court. Ruskin now appeals from the subsequent trial court order awarding Massa an additional $86,083.24 for attorney fees and costs incurred on the prior appeal. We find no merit in Ruskin’s contentions and shall affirm the order, which in turn will justify still additional fees for defending this appeal.
Background
In July 1998, Ruskin and Massa entered a contract under which Ruskin agreed to pay Massa $586,700 to build him a home in San Rafael. In September 1999, Massa filed a first amended complaint against Ruskin for breach of contract and to foreclose on his mechanic’s lien. The complaint alleged that during construction Ruskin ordered numerous changes and additions in the work to be performed, that Ruskin had agreed orally to reimburse Massa for the cost of the changes, and that the additional cost of these changes was $75,503.44, all of which was due and owing to Massa. In November 2001, Ruskin filed a complaint against Massa and others alleging breach of contract, intentional and negligent concealment, breach of warranty, unfair business practices, and negligence. Ruskin alleged that “[t]he actual value of the work performed by Massa on the Project does not exceed $400,000 . . .” and that “Massa has received approximately $180,000 in excess of the reasonable value of the work performed on the Project.” The two actions were consolidated and the court granted a petition to compel arbitration. Following an arbitration that consumed 21 days between December 2003 and June 2004, the arbitrator awarded Massa $168,253.36 “for unpaid sums on the base contract, change orders and extra work performed by the Contractor at the request of the Owner, interest penalties to and including June 30, 2004, under California Civil Code § 3260,” less a $500 offset, plus attorney fees of $209,197.50.
Ruskin filed in superior court a “Notice of Rejection of Arbitration Award” and then a motion to declare the award nonbinding and an alternative motion to vacate or correct the award. Massa filed a petition to confirm the award. The trial court denied Ruskin’s motions, granted the petition to confirm, and entered judgment for Massa in the amount of $367,861.12, which included attorney fees of $262,385.00.
Ruskin appealed that judgment, arguing that the arbitrator had an undisclosed bias, that the arbitration should not have been binding, and that the arbitrator exceeded his authority by awarding statutory penalties. This court affirmed the judgment. (Massa v. Ruskin (Aug. 29, 2006, A110704) [nonpub. opn.].)
Massa then made a motion in the trial court for an award of attorney fees incurred in defending Ruskin’s appeal. Over Ruskin’s opposition, the court granted the motion and awarded $86,083.24 for fees and costs incurred in the appeal. Ruskin moved for reconsideration and the court denied the motion. Ruskin timely noticed an appeal.
Discussion
On appeal, Ruskin pursues his argument that Massa is not entitled to any attorney fees in connection with the prior appeal. Although he argues that the attorney fees that have been awarded are “grossly disproportionate” to the amount that was in controversy in the initial arbitration, he makes no argument that the amount of the award should be reduced. He contends only that the entire award was improper and should be reversed.
The arbitrator specified numerous grounds for awarding attorney fees in connection with the arbitration, including Civil Code section 3260, subdivision (g), Code of Civil Procedure section 1033.5, subdivision (a)(10) (attorney fees allowable as costs when authorized by contract, statute or law), and “because a fee award is necessary to a ‘fair and just award.’ ” In requesting the trial court to award attorney fees for the prior appeal, Massa relied exclusively on section 3260.
Further statutory references are to the Civil Code unless otherwise noted.
Section 3260.1, subdivision (b) provides that an owner may withhold progress payments if there is a good faith dispute between the parties, but that “[i]f any amount is wrongfully withheld in violation of this subdivision, the contractor shall be entitled to the penalty specified in subdivision (g) of Section 3260.” That section further provides that “[i]n the event that retention payments are not made within the time periods required by this section, the owner or original contractor withholding the unpaid amounts shall be subject to a charge of 2 percent per month on the improperly withheld amount, in lieu of any interest otherwise due. Additionally, in any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to his or her attorney’s fees and costs.” (Ibid.)
Ruskin seems to suggest that the initial award of attorney fees was improper. He points to the language of section 3260 that the prevailing party is entitled to attorney fees “in any action for the collection of funds wrongfully withheld,” and cites McAndrew v. Hazegh (2005) 128 Cal.App.4th 1563, in which an award of attorney fees under section 3260 was reversed because the entire disputed amount that a building owner had refused to pay his contractor was not a “retention” within the scope of the statute. “The only dispute between the parties related to [the contractor’s] bills for extra work which [the owner] denied authorizing or owing and which [the contractor] acknowledged were not the subject of a written amendment to the contract.” (Id at p. 1567.)
Here, however, while a portion of the dispute involved Massa’s claim for extra payments, the arbitrator’s award also included amounts due under the contract that Ruskin refused to pay. Any argument that the attorney fees should have been apportioned between the fees attributable to the dispute over the retention and the fees attributable to other issues has been waived since no such argument appears to have been made to either the arbitrator or the trial court. (See, e.g., Planned Protective Services, Inc. v. Gorton (1988) 200 Cal.App.3d 1, 12-13 [party may not challenge attorney fee award on appeal on a ground not raised in the trial court], disapproved on other grounds by Martin v. Szeto (2004) 32 Cal.4th 445, 451, fn. 7.) In any event, although Ruskin’s brief seems to imply that the initial withheld retention was $10,000, he does not point to any evidence in the record that confirms this amount or would allow this court to make any such allocation. Moreover, we are in no position to determine whether the attorney time devoted to issues concerning the retention can be segregated from hours devoted to other issues, much less to determine how many hours were spent on which issues.
The applicability of section 3260 was addressed in our first opinion. In rejecting Ruskin’s argument that the arbitrator had exceeded his authority in making an award under section 3260, our opinion in the prior appeal at pages 14 and 16 reads: “The arbitrator found that Massa was entitled to penalties under . . . section 3260.1 because there was not a good faith dispute that would have entitled Ruskin to withhold payment. The award stated that ‘[t]he Owner manufactured false issues, including many punch lists, in an unsuccessful attempt to force the Contractor to abandon his legitimate claims for payment on the Contract and change orders. By refusing to pay the sums rightfully due the contractor, the Owner has wrongfully withheld payment for more than five years. But for the Contractor and his attorney’s stubborn refusal to give up their claims over the last five-plus years, the Owner would have profited from his wrongful refusal to pay the Contractor’s valid claims.’ The arbitrator concluded that because there was not a good faith dispute entitling Ruskin to withhold payment, ‘the penalties of . . . section 3260 et seq. apply. Therefore, the Owner is liable for the Contractor’s attorney fees, costs and 2% per month interest penalty on the improperly withheld amount.’ . . . [¶] . . . [¶] The award in this case meets [the] standard [established in Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362].”
Ruskin also argues that because “[t]he appeal concerned only the undisclosed bias of the arbitrator, the binding nature of the arbitration, and procedural aspects of notice and the authority of the arbitrator to hear and adjudicate certain claims,” the appeal did not come within the ambit of the attorney fee provision. However, the applicability of section 3260 does not turn on the grounds on which the owner challenged the award, but on whether the owner had a good faith basis for withholding payment that was due the contractor. The arbitrator found that there was no good faith basis and on appeal this court upheld the order confirming that award, including the award of attorney fees. The prior appeal was as much a part of the legal proceedings necessary to enforce Massa’s rights as any other stage of the arbitration and litigation. Hence, having already determined that Massa is entitled to his attorney fees under section 3260, his present argument may well be foreclosed simply by virtue of the law of the case doctrine. (See, e.g., Davies v. Krasna (1975) 14 Cal.3d 502, 507 [“a matter adjudicated on a prior appeal normally will not be relitigated on a subsequent appeal in the same case”]; Wilder v. Whittaker Corp. (1985) 169 Cal.App.3d 969, 972 [“ ‘decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case’ ”].)
In all events, the award of attorney fees for the appeal is fully justified under the principle reiterated in Morcos v. Board of Retirement (1990) 51 Cal.3d 924 (Morcos), on which the trial court relied. In Morcos, the Supreme Court stated “the general principle that statutes authorizing attorney fee awards in lower tribunals include attorney fees incurred on appeals of decisions from those lower tribunals.” (Id. at p. 927.) The court reaffirmed that “‘[i]t is established that fees, if recoverable at all—pursuant either to statute or parties’ agreement—are available for services at trial and on appeal.’ ” (Ibid., italics added.) The court cited numerous examples in varied contexts in which this general rule has been applied. (Id. at pp. 927-928.) We see no reason why it is not, and should not be, applicable here.
Ruskin also urges us to view the action as more akin to Brandt v. Superior Court (1985) 37 Cal.3d 813 and Burnaby v. Standard Fire Ins. Co. (1995) 40 Cal.App.4th 787. In those cases, attorney fees on appeal were denied because attorney fees had been recovered at trial as a measure of damages for an insurer’s breach of contract and breach of the covenant of good faith and fair dealing. The Burnaby court criticized the reasoning of Brandt, urging the Supreme Court to reconsider this anomalous rule. But in any event, the attorney fees in the present case have been awarded pursuant to a statute explicitly authorizing such fees in the circumstances that have been determined to exist here. The attorney fee award does not rest on the unique principle adopted in Brandt.
We do not agree with Ruskin that the substantial amount of penalties, interest and attorney fees for which he has been held liable in this litigation are attributable to a dispute concerning only $10,000. The record reflects that Ruskin wrongfully withheld over an extended period of time a substantially larger amount that was due Massa. We are not unsympathetic with the substantial amount of attorney fees that he has been compelled to pay, but we have no basis to question that the fees reflect reasonable hourly rates and the number of hours that Massa’s attorneys were required to expend to defend against Ruskin’s many claims and contentions that have been determined to be without merit.
Disposition
The judgment is affirmed. Costs and attorney fees to be paid by Ruskin. (Cal. Rules of Court, rules 8.278(d)(2) & 3.1702.)
We concur: McGuiness, P. J., Siggins, J.