Opinion
D073089
10-30-2018
GREGORY AXTEN, Plaintiff and Respondent, v. NIKOLA AXTEN, Defendant and Appellant.
Law Office of Foroozandeh and Majid Foroozandeh for Defendant and Appellant. Law Offices of Andrew A. Kurz, Andrew A. Kurz; Blackmar, Principe & Schmelter, and Gerry C. Schmelter for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2017-00023681-CU-PA-CTL ) APPEAL from a judgment of the Superior Court of San Diego County, Lisa C. Schall, Judge. Affirmed. Law Office of Foroozandeh and Majid Foroozandeh for Defendant and Appellant. Law Offices of Andrew A. Kurz, Andrew A. Kurz; Blackmar, Principe & Schmelter, and Gerry C. Schmelter for Plaintiff and Respondent.
Nikola Axten appeals from a judgment confirming an arbitration award for attorney fees and costs in favor of Gregory Axten. She contends the award should have been corrected to include an additional attorney fee and cost award in her favor. We conclude that Nikola waived any claims on appeal by failing to provide an adequate appellate record. Because Gregory provided an adequate record allowing review of appellant's claims on the merits, we further conclude Nikola is not entitled to relief on the merits—the arbitrator did not determine she was a prevailing party entitled to recovery, and the arbitrator did not act in excess of his jurisdiction. As such, we affirm the judgment.
Because the parties share the same surname, for clarity we will refer to them by their first names.
BACKGROUND
1. Prior Litigation
Nikola and Gregory were married in 1990, separated in 1998, and divorced in 2004. As a result of their marital separation agreement, they each owned a 47.5 percent interest in John Foster, LLC (Foster LLC), an entity that owns a single asset—a commercial property leased to a soil engineering firm that is majority-owned by Gregory. (Their son owned the final 5 percent interest in Foster LLC.) Foster LLC's operating agreement contained an arbitration agreement that included a prevailing party fee provision stating: "The prevailing party shall be entitled to reimbursement of attorney fees, costs, and expenses incurred in connection with the arbitration."
Nikola did not include a copy of the Foster LLC operating agreement in her appellant's appendix.
In 2012, Nikola initiated a lawsuit in Orange County Superior Court against Gregory alleging Gregory's engineering firm paid below-market rent to Foster LLC (the Foster action). She contended she was entitled to 47.5 percent of unpaid rents plus interest, totaling $1,919,650.37.
Axten v. Axten et al. (Super. Ct. Orange County, 2012, No. 30-2012-00601531). It appears Foster LLC and the engineering firm were originally named as defendants in that action but obtained judgments of dismissal in their favor. They are not parties to this action.
Nikola subsequently filed a separate lawsuit in Orange County Superior Court against Gregory alleging he conspired with the founder of a company called Rate 1st to fraudulently induce her into investing approximately $400,000.00 in that company (the Rate 1st action). The Foster and Rate 1st actions were consolidated for trial.
Axten v. Rate 1st (Super. Ct. Orange County, 2013, No. 30-2013-00663109). It appears Rate 1st and its founder were originally named as defendants in that action. They are not parties to this action.
2. Agreement to Arbitrate and Subsequent Settlement Agreement
In 2014, prior to trial in the consolidated actions, Nikola voluntarily dismissed the Foster action and filed an arbitration demand as to those claims, apparently pursuant to the arbitration agreement in the Foster LLC operating agreement. In response to her offer to dismiss the Rate 1st action if Gregory would agree to binding arbitration of those claims, the parties entered into a written agreement to arbitrate pursuant to which the Rate 1st claims were consolidated with the Foster claims in arbitration. That agreement contained the same prevailing party fee provision from the Foster LLC operating agreement stating: "The prevailing party shall be entitled to reimbursement of attorney fees, costs and expenses incurred in connection with the arbitration." The agreement further provided: "All decisions of the arbitrator shall be final, binding and conclusive on both [p]arties. Judgment may be entered upon any such decision in accordance with applicable law in any court having jurisdiction thereof."
The parties agreed to arbitrate their consolidated claims and chose an arbitrator based in San Diego.
In 2016, the parties entered into a settlement agreement disposing of the claims in the consolidated arbitration. Pursuant to the settlement agreement, Gregory bought out Nikola's 47.5 percent interest in Foster LLC. The settlement agreement contained detailed provisions regarding how the commercial property's fair market value would be determined and included mutual general releases; a mutual disclaimer of liability; and a merger provision stating that "all prior representations, negotiations or agreements between the [p]arties . . . are deemed merged into this [a]greement."
The settlement agreement stated it was "dispositive of the claims asserted by [Nikola] in the Foster [a]rbitration and the Rate 1st [a]rbitration." It further provided:
"[Gregory] may bring motions to have the arbitrator determine that he was the prevailing party in the Foster Arbitration and in the Rate 1st Arbitration, and if so, the amount to be awarded for fees, costs, and expenses incurred by [Gregory] in connection with each matter."The settlement agreement contained no similar provision regarding Nikola's right to bring a motion for a fee award.
The settlement agreement contained an arbitration provision under which the parties agreed that "[a]ny dispute, claim or controversy arising out of or with respect to this [a]greement . . . shall be determined by binding arbitration before [the arbitrator]." It further contained a prevailing party fee provision that stated:
"The prevailing party in any action or other proceeding to interpret or enforce, or otherwise arising out of, this [a]greement, [Gregory's] motions for recovery of fees, costs and expenses, or the selection of the neutral appraiser and/or determination of fair market value, shall be entitled to recover reasonable attorneys fees, costs and expenses."
3. Gregory's Fees and Costs Award
Pursuant to the parties' settlement agreement, Gregory brought a motion in arbitration for a determination that he was the prevailing party in both the Foster and Rate 1st actions and, as such, entitled to fees and costs incurred, and a determination that the amounts requested were reasonable. Nikola opposed the fee motion, arguing that Gregory was not the prevailing party, and urged the arbitrator to "[f]ind [n]o [p]arty [p]revailed [a]nd [d]eny [a]ttorney [f]ees."
Nikola did not include a copy of Gregory's fee motion in her appellant's appendix; she included only her opposition to this motion.
The arbitrator determined Gregory had not established he was the prevailing party in the Foster action, but he had established he was the prevailing party in the Rate 1st arbitration action, and awarded fees and costs accordingly. The arbitrator's order awarding fees, dated May 5, 2017, provided the following analysis:
The arbitrator declined to award fees or costs associated with the portion of the Rate 1st litigation that occurred in Orange County Superior Court.
"1. The terms outlined in the Settlement Agreement . . . do not establish that [Gregory] is the prevailing party in relation to the claims asserted by [Nikola] in [the Foster action]. The Settlement Agreement provided for the buyout of [Nikola's] interest in the John Foster LLC. The buyout can be viewed as benefitting [Nikola] in relation to the types of tort claims asserted in the Foster [a]ction. By disposing of her interest in the LLC, she will no longer be impacted by any alleged wrongful conduct by [Gregory] in relation to the
LLC. Therefore, [Gregory's] [m]otion is denied for fees and costs allocable to the defense of the claims in the Foster [a]ction.
"2. [Gregory] is deemed the prevailing party in relation to the . . . Rate 1st [a]rbitration [a]ction . . . . [Gregory] is entitled to receive recovery of reasonable attorneys fees and costs allocable to the defense of the Rate 1st [a]rbitration [a]ction.
[¶] . . . [¶]
"4. It is hereby ordered that [Gregory's] [m]otion for [a]ward of [a]ttorneys [f]ees is granted in the amount of $94,972.00 and [c]osts in the amount of $ 18,191.00."
Gregory served a copy of the arbitration order awarding fees on May 19.
4. Nikola's Application to "Correct" the Fees and Costs Award
On May 26, Nikola served in the arbitration an "application to correct the arbitrator's award," in which she argued:
"[The arbitrator] . . . found that [Nikola] was the prevailing party in the [Foster action], but failed to award [Nikola] attorney fees and cost[s] as he did for [Gregory] in the [Rate 1st arbitration action].
"The [arbitration agreement], relied upon by [the arbitrator] did not require that the parties file a formal motion for attorney fees and cost. The award was mandatory.
"However, . . . the arbitrator had before him sufficient facts and law to make a decision that should have been bilateral given his findings that [Nikola] prevailed in the Foster matter."
Nikola requested an award of $99,322.50 in attorney fees and $7,851.39 in costs, "plus whatever [Nikola] owes to [the arbitrator] in the prosecution of the . . . Foster matter."
On June 5, the arbitrator summarily denied Nikola's application, stating in a written order it had been "read and reviewed" and was denied. The denial order was served on the parties to the arbitration on June 7.
5. Petition to Confirm Arbitration Award
On June 27, Gregory filed a petition in San Diego Superior Court to confirm the May 5 arbitration order awarding him $113,163.00 in fees and costs. He attached the parties' settlement agreement, identifying it as the applicable agreement to arbitrate, and described the parties' dispute subject to arbitration as "[a]ttorneys fees and costs to be awarded to Petitioner, Gregory Axten." He requested the court to confirm the arbitrator's order awarding fees, to enter judgment accordingly, and to award him fees and costs incurred in his action to confirm the arbitration award. Gregory served the petition and a notice of hearing thereon on July 10.
Nikola did not include a copy of this document in her appellant's appendix.
Nikola simultaneously filed in Orange County Superior Court a petition to "confirm in part" the arbitration award and "correct the award to include attorney fees and costs" incurred by Nikola as the prevailing party in the Foster action. Her petition was denied and dismissed on the ground that the court did not have jurisdiction to hear the matter. (Code Civ. Proc., § 1292.2 [petitions to confirm arbitration awards are properly filed in the county in which the arbitration occurred].) Nikola included copies of these documents in her appellant's appendix, but, because they are not part of the superior court record in this action, they are not properly part of appellant's appendix. (See discussion at fn. 9, post.) However, we exercise our discretion to take judicial notice of these documents. (Evid. Code, § 452.)
It appears that Nikola twice attempted to file responses to Gregory's petition in San Diego Superior Court on July 19 and August 18; however, the documents were rejected by the court clerk's office.
Nikola included copies of these and other unfiled documents in her appendix. Because they are not part of the record that was before the superior court in this action, these documents are not properly included in the appendix. (Cal. Rules of Court, rule 8.124(g); see Emerald Aero, LLC v. Kaplan (2017) 9 Cal.App.5th 1125, 1131, fn. 4.) We thus grant Gregory's motion to strike pages 16, 17-21, 53-72, and 74-86 of appellant's appendix.
Finally, on September 7, Nikola successfully filed a document entitled "points and authorities to confirm in part and correct the arbiter's award to include attorney fees and cost[s] in favor of [Nikola] as the prevailing party and demand for attorney fees and cost[s]." A proof of service accompanying this document indicates it was served on September 8. In her brief, Nikola argued the arbitration award was incomplete for "failure to consider a submitted issue" and further argued the arbitrator exceeded his power in denying a request for attorney fees contractually due. She argued she was entitled, contractually and statutorily, to attorney fees and costs as the prevailing party in the Foster action. She requested the court to either correct the award to include an attorney fee and cost award in her favor and, as corrected, to confirm it, or to vacate the award, leaving both parties without an award of fees or costs. She requested additional fees incurred in connection with the petition.
Consistent with the application she filed in arbitration, Nikola requested fees of $99,322.50 and costs of $7,851.39. She contemporaneously filed a declaration of counsel purporting to substantiate these amounts. She purportedly served her brief and supporting documents on Gregory on September 8, 2017.
In a subsequently filed supplemental brief, Nikola similarly argued she was statutorily entitled to costs of suit, including attorney fees authorized by contract as the prevailing party in the Foster action and the arbitrator's failure to award such costs violated her statutory rights; as such the decision in arbitration was subject to being vacated or corrected.
On September 15, Gregory submitted a memorandum of points and authorities in support of his petition to confirm the arbitration award in which he argued that Nikola was not entitled to seek fees under the parties' settlement agreement, her application to correct the fee order did not constitute a proper request for fees, the arbitrator did not and could not determine she was the prevailing party because she did not prevail, and it was inappropriate to relitigate the arbitrator's determinations.
Nikola did not include in her appellant's appendix a copy of this memorandum or any of the documents Gregory contemporaneously filed in support thereof.
6. Hearing and Order on Petition to Confirm
The parties appeared for a hearing on the petition to confirm the arbitration award, where the court indicated it was inclined to confirm the award. Following the hearing, the court entered a minute order finding that Gregory's petition complied with the statutory requirements for confirmation and confirmation was warranted. (Code Civ. Proc., § 1285 et seq.) Nikola was not entitled to the relief she was requesting because by failing to timely file a petition to correct the award or respond to Gregory's petition to confirm, she was procedurally barred from recovery, and she had not established she was entitled to relief on the merits because her arguments regarding entitlement to fees and costs all rested on the mistaken premise that the arbitrator determined she was the prevailing party in the Foster action, which the arbitrator did not do. In fact, the arbitrator considered Nikola's argument she was the prevailing party and rejected it. The court determined Gregory was entitled to an award of fees and costs incurred in confirming the arbitration award and directed him to submit a finalized accounting of such fees and costs. The court subsequently entered judgment confirming the arbitration award.
Unless otherwise specified, subsequent statutory references are to the Code of Civil Procedure.
The court subsequently awarded Gregory additional fees and costs of $10,045.00 incurred in filing the petition to confirm.
7. Appeal
Nikola filed a premature notice of appeal from the court's minute order granting Gregory's petition to confirm the arbitration award. This court issued an order notifying the parties we would construe Nikola's premature notice of appeal as taking the appeal from the judgment confirming the arbitration award. (Baldwin Co. v. Rainey Construction Co., Inc. (1991) 229 Cal.App.3d 1053, 1057, fn. 2 [appeal from order confirming award construed as having been taken from final judgment].)
In her opening brief on appeal, Nikola again stated she appeals from the court's minute order. We reiterate that no appeal lies from an order confirming an arbitration award. The appeal is properly taken from the judgment entered on the award. (Cummings v. Future Nissan (2005) 128 Cal.App.4th 321, 326-327; Giorgianni v. Crowley (2011) 197 Cal.App.4th 1462, 1470.) Similarly, an order denying a request to correct an arbitration award is not appealable; the appeal must be taken from the ensuing judgment of confirmation. (Mid-Wilshire Associates v. O'Leary (1992) 7 Cal.App.4th 1450, 1454.)
On appeal, Nikola seeks to reverse the judgment entered in Gregory's favor, arguing that the arbitration award should be corrected to include an award of fees and costs in her favor as the prevailing party in the Foster action. Nikola did not raise on appeal her alternate argument asserted in the trial court that the arbitration award, if not corrected, should be vacated.
DISCUSSION
1. Applicable Law and Standard of Review
Pursuant to section 1285, any party to an arbitration may petition the court to "confirm, correct or vacate the award" made in arbitration. "Once a petition to confirm an award is filed, the superior court must select one of only four courses of action: It may confirm the award, correct and confirm it, vacate it, or dismiss the petition." (EHM Productions, Inc. v. Starline Tours of Hollywood, Inc. (2018) 21 Cal.App.5th 1058, 1063 (EHM Productions); see § 1286.)
" 'On appeal from an order confirming an arbitration award, we review the trial court's order (not the arbitration award) under a de novo standard. [Citations.] To the extent that the trial court's ruling rests upon a determination of disputed factual issues, we apply the substantial evidence test to those issues.' " (Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1217.)
"[I]t is the general rule that, with narrow exceptions, an arbitrator's decision cannot be reviewed for errors of fact or law." (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 11.) The narrow exceptions to this general rule are limited "to those cases in which there exists a statutory ground to vacate or correct the award." (Id. at p. 28; accord ECC Capital Corp. v. Manatt, Phelps & Phillips, LLP (2017) 9 Cal.App.5th 885, 899-900 ["Judicial review of an arbitration award is ordinarily limited to the statutory grounds for vacating an award under section 1286.2 and correcting an award under 1286.6."].) "Neither the trial court, nor the appellate court, may 'review the merits of the dispute, the sufficiency of the evidence, or the arbitrator's reasoning, nor may we correct or review an award because of an arbitrator's legal or factual error, even if it appears on the award's face.' " (EHM Productions, supra, 21 Cal.App.5th at pp. 1063-1064.)
2. Inadequate Appellate Record
Gregory contends Nikola has forfeited her claims on appeal by providing this court an inadequate appellate record. Nikola, in turn, contends Gregory's "pleading and exhibits to affirm the award are clearly not relevant here." We agree with Gregory that Nikola's appellate record is inadequate, and thus she has forfeited her claims on appeal.
The California Rules of Court require an appellant who elects to proceed by appendix to include, among other things, any document filed in the trial court which "is necessary for proper consideration of the issues, including . . . any item that the appellant should reasonably assume the respondent will rely on." (Cal. Rules of Court, rule 8.124(b)(1)(B).) An appellant must support all statements of fact in his briefs with citations to the record (Cal. Rules of Court, rule 8.204(a)(1)(C)) and must confine his statements "to matters in the record" on appeal. (Cal. Rules of Court, rule 8.204(a)(2)(C).)
"It is . . . a fundamental rule of appellate review that an appealed judgment or order is presumed correct. [Citation.] . . . . To overcome this presumption, the appellant must provide an adequate appellate record demonstrating error. [Citation.] ' "A necessary corollary to this rule [is] that a record is inadequate . . . if the appellant predicates error only on the part of the record he [or she] provides the trial court, but ignores or does not present to the appellate court portions of the proceedings below which may provide grounds upon which the decision of the trial court could be affirmed." [Citation.]' [Citation.] Where the appellant fails to provide an adequate record of the challenged proceedings, we must presume that the appealed judgment or order is correct, and on that basis, affirm." (Jade Fashion & Co. Inc. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th 635, 643-644; Jameson v. Desta (2018) 5 Cal.5th 594, 609 [appellant has the burden of providing an adequate appellate record; "[f]ailure to provide an adequate record on an issue requires that the issue be resolved against [the appellant]"].)
Nikola's appendix is wholly inadequate. In addition to improperly including materials not filed in the superior court, Nikola failed to include required documents such as the notice of entry of judgment, the register of actions, Gregory's petition to confirm the arbitration award, and Gregory's points and authorities and other documents filed in support of his petition to confirm the arbitration award. (See Cal. Rules of Court, rules 8.122(b)(1) & (3), and 8.124(b)(1)(B).) In fact, Nikola's appendix fails to include any brief or pleading filed by Gregory, at all.
See footnote 9, ante.
By failing to furnish an adequate record of the proceedings below, Nikola has forfeited any claims she may have on appeal. As the California Supreme Court has recently emphasized, if the appellate record is inadequate for meaningful review, " ' "the appellant defaults and the decision of the trial court should be affirmed." ' " (Jameson v. Desta, supra, 5 Cal.5th at p. 609; see Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 ["Because they failed to furnish an adequate record of the . . . proceedings, defendants' claim must be resolved against them."].) On this basis alone, the judgment should be affirmed. However, because Gregory has filed a respondent's appendix including the necessary documents (which demonstrate judgment was properly entered), we will review the judgment on the merits.
3. Procedural Bar
The trial court order confirming the arbitration award concluded that Nikola was procedurally barred from correcting the award.
"[Nikola] is procedurally barred from correcting the award. [She] failed to timely file a [m]otion to [c]orrect [a]ward (within 100 days after the award) [§ 1288.2] or timely respond to a petition to confirm arbitration with a request to correct the award (within 10 days after the petition was filed) [§ 1290.6]. Since [Nikola] failed to meet these statutory deadlines and because [section] 1286.8(a) prohibits the court from correcting an award unless a petition or response
requesting that the award be corrected has been duly served and filed, the [c]ourt lacks jurisdiction to correct the award."
As the trial court recognized, it may correct an arbitration award only if "[a] petition or response requesting that the award be corrected has been duly served and filed . . . ." (§ 1286.8.) "A response requesting . . . that an award be corrected shall be served and filed not later than 100 days after the date of service of a signed copy of the award . . . ." (§ 1288.2; accord § 1288 ["A petition to vacate an award or to correct an award shall be served and filed not later than 100 days after the date of the service of a signed copy of the award on the petitioner."].) If the party who lost in the arbitration does not serve and file a petition to vacate or a response to a petition to confirm within the 100-day period from the date of service of the award, the award must be treated as final. (Eternity Investments, Inc. v. Brown (2007) 151 Cal.App.4th 739, 745.)
Nikola contends the trial court's determination that she was procedurally barred is erroneous. She argues that she filed a petition in Orange County Superior Court to have the award corrected on June 27, within 100 days of the arbitrator's fee award. We reject this argument. Documents filed in Orange County Superior Court are not part of the record in this case and were not duly served and filed in this action such that they meet the 100-day statutory requirement under section 1288.2.
Nikola also contends we should consider the rejected documents for purposes of compliance with the statutory deadline. She claims she attempted to timely file a response to Gregory's petition in this action on July 13, but this response was rejected by the clerk's office because Gregory "change[d] his nomenclature" from respondent to petitioner at the time he filed his petition for confirmation of the award. She contends Gregory "should not . . . benefit[] from the mistake he created," and, under principles of equity, the court should consider the timing of these attempts to file. We reject this argument. Because Gregory initiated this action in the superior court by filing a petition to confirm an arbitration award, he is the petitioning plaintiff in this litigation. As the party responding to Gregory's petition, Nikola is the respondent. It does not matter that Nikola was the claimant in the arbitration, while Gregory was deemed the respondent in the arbitration. The parties' prior arbitration and the present action to confirm the award entered there are separate and distinct proceedings, and it is appropriate (not gamesmanship or mistake) for the parties to bear different titles in each.
It appears that Nikola's filings in San Diego Superior Court may have been rejected because the documents listed Nikola as the petitioning party (while it was Gregory who had filed the petition to compel in this action) and Nikola's counsel as counsel for petitioner.
Although we are not persuaded by Nikola's arguments, still we are not convinced that she was procedurally barred from relief. Both parties (and the trial court) apparently assume the 100-day deadline for filing a request to correct the arbitration award was triggered by service of the arbitrator's order awarding Gregory fees pursuant to section 1288.2. But this fails to account for Nikola's application to the arbitrator to correct the award. "If an application is made to the arbitrators for correction of the award, the date of the service of the award for the purposes of this article [including section 1288.2] shall be deemed to be . . . [¶] [t]he date of service upon the petitioner of a signed copy . . . of the denial of the application." (§ 1288.8, subd. (a).) Nikola was served with the arbitrator's denial of her application on June 7, 2017. Thus, under section 1288.8, Nikola's 100-day period did not begin to run until at least that date. The "points and authorities to confirm in part and correct the arbiter's award to include attorney fees and cost[s]" Nikola filed in the superior court on September 7 and served September 8 was filed within 100 days of June 7 and could be construed to be a "petition or response requesting that the award be corrected," satisfying the statutory requirement of sections 1286.8, subdivision (a) and 1288.2, to timely file a correction request.
One hundred days from June 7, 2017 is September 15, 2017. Under section 1013, subdivision (a), Nikola would be afforded an additional five calendar days for service by mail, extending her 100-day period to September 20, 2017.
Even if the court were to construe Nikola's September 7 filing as a response requesting that the arbitration award be corrected, that document undisputedly was not filed within the 10-day deadline for responding to Gregory's petition, which was served on July 10. (§ 1290.6 [response to a petition to confirm arbitration award due within 10 days of service of the petition].) Unlike the 100-day rule, however, the 10-day response deadline "may be extended by an agreement in writing between the parties to the court proceeding or, for good cause, by order of the court." (§ 1290.6). (Cf. Abers v. Rohrs (2013) 217 Cal.App.4th 1199, 1211-1212 [because the 100-day limitation for a petition to confirm, correct, or vacate an arbitration award is jurisdictional, the court may not provide relief from 100-day rule in § 1288].) In light of Nikola's prior unsuccessful attempts to file, the trial court could have found good cause to extend the 10-day deadline and accept Nikola's brief as a response to Gregory's petition, satisfying section 1290.6. As such, we assume without deciding that Nikola was not procedurally barred from obtaining the relief she requested in the superior court.
Although Gregory filed his petition to confirm the arbitration award on June 27, it does not appear from the record that he served the petition until he noticed the hearing thereon on July 10.
4. Nikola Has Not Established She Is Entitled to Relief
Even assuming Nikola was not procedurally barred from relief, we conclude she is not entitled to relief on the merits.
a. Contractual Right to Prevailing Party Fees and Costs
Gregory contends Nikola disclaimed any rights to prevailing party attorney fees and costs when she entered into the settlement agreement disposing of the Foster and Rate 1st claims in the consolidated arbitration. Gregory acknowledges that the parties' underlying agreements (the Foster LLC operating agreement and the agreement to arbitrate the Rate 1st action) both contained mutual prevailing party fee provisions; however, when the parties entered into their final settlement agreement, they agreed that only Gregory could pursue a request for prevailing party fees. Nikola, in turn, claims this argument is "simple down to earth hogwash," and argues the agreements should be read together and understood to reserve to Gregory (but not extinguish for Nikola) a right that already existed for both parties under the prior agreements to seek prevailing party fees and costs. Alternatively, Nikola argues that Civil Code section 1717 renders mutual any unilateral right to prevailing party fees and costs. Moreover, Nikola contends that the settlement agreement itself contains a prevailing party fee provision.
Gregory further contends that, even if Nikola was entitled to seek prevailing party fees, she waived any entitlement because she did not file a proper fee motion in the arbitration requesting a finding that she was the prevailing party. Indeed, when Gregory filed his motion for fees in arbitration, Nikola opposed his motion, but she did not request fees of her own. Only after the arbitrator entered a fee award in Gregory's favor, concluding he was the prevailing party only in the Rate 1st action, did Nikola file her "application" to "correct" that award, requesting fees as the purported prevailing party in the Foster action.
Assuming, for the sake of argument, Nikola was contractually entitled to fees and costs if she was the prevailing party and she did not waive that entitlement by failing to properly seek fees in arbitration, still she has not established any ground for reversal of the judgment confirming the arbitration award in Gregory's favor, as we explain next.
b. Omitted Issue
Nikola urges this court to recognize an exception to the general rule of arbitral finality that would justify amendment of an arbitration award when the arbitrator has omitted an issue. She contends A.M. Classic Construction, Inc. v. Tri-Build Development Co. (1999) 70 Cal.App.4th 1470 and subsequent cases support her position and permit the correction of an arbitration award to add the omitted fee award in her favor. The law does not support her position. In A.M. Classic Construction, the court permitted the arbitrator to amend an arbitration award that had previously been confirmed in superior court, and was thus final, where the amendment was done to include rulings on an omitted issue. (Id. at pp. 1472-1473.) This case is inapposite here, where Nikola has asked the superior court—not the arbitrator—to correct and confirm an arbitration award.
In addition to being unsupported by the law, Nikola's theory is also unsupported by the facts. The arbitrator did not omit to consider the issue of whether Nikola was entitled to prevailing party fees. To the contrary, in response to Nikola's application to correct the award entered in Gregory's favor, the arbitrator clearly stated he had "read and reviewed" Nikola's request and denied it. Thus, it is clear from the record that the arbitrator expressly declined to award prevailing party fees to Nikola. Under established principles, it is not the role of this court to second-guess the arbitrator on such issues. (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 26 ["Who is the prevailing party is a mixed question of law and fact, and [courts] simply have no power to second-guess the arbitrator's decision on that issue."].)
c. Arbitrator Did Not Act in Excess of Jurisdiction
Nikola alternatively argues she is entitled to a corrected award under section 1286.6 because the arbitrator's refusal to award her fees as the prevailing party in the Foster action amounts to an act in excess of the arbitrator's jurisdiction. Nikola contends she was the prevailing party because she obtained nearly one million dollars in monetary recovery under the settlement, and as the prevailing party, she is entitled to an award of fees and costs under the parties' agreements and under sections 1032 and 1033.5, subdivision (a)(10). Nikola contends the arbitrator's failure to award these costs constitutes an act in excess of the arbitrator's powers and that the trial court therefore should have corrected the arbitration award to include her costs.
The trial court may correct the arbitration award "if the court determines that: [¶] . . . [¶] [t]he arbitrators exceeded their powers but the award may be corrected without affecting the merits of the decision upon the controversy submitted . . . ." (§ 1286.6, subd. (b).) "[A]rbitrators do not exceed their powers 'merely by rendering an erroneous decision on a legal or factual issue, so long as the issue was within the scope of the controversy submitted to the arbitrators.' " (Taylor v. Van-Catlin Construction (2005) 130 Cal.App.4th 1061, 1066.) Nikola does not dispute, and indeed, the agreements confirm, that the prevailing party fee dispute issue was within the scope of the parties' agreement to arbitrate. Where an arbitrator is authorized under the parties' agreement to determine who is the prevailing party, courts lack the authority to reverse or modify the arbitrator's prevailing party finding. (Creative Plastering, Inc. v. Hedley Builders, Inc. (1993) 19 Cal.App.4th 1662, 1666.)
We reject Nikola's contention the arbitrator determined she was the prevailing party in the Foster action. The arbitrator determined that Gregory was not the prevailing party in that dispute, but, as the trial court recognized, this is not necessarily a determination that Nikola was the prevailing party. Initially, the arbitrator acknowledged only that the parties' ultimate settlement of that dispute, involving the buyout of Nikola's shares in the Foster LLC by Gregory, "can be viewed as benefitting [N]ikola . . . ." Then, when presented with Nikola's prevailing party fee request, the arbitrator expressly declined to award fees (as noted ante). These actions undermine Nikola's claim that the arbitrator determined she was the prevailing party.
In sum, the arbitrator did not find Nikola was a prevailing party entitled to fees and costs, and the trial court did not err in confirming the arbitration award, as the award did not exceed the arbitrator's powers.
DISPOSITION
The judgment is affirmed. Respondent Gregory Axten is entitled to costs on appeal.
GUERRERO, J. WE CONCUR: O'ROURKE, Acting P. J. DATO, J.