Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 505639
NEEDHAM, J.
Howard E. Hinman (Hinman) appeals from a judgment confirming two awards in an arbitration in favor of respondent Fujitsu Software Corp. (FSW), and from a post-judgment order awarding FSW contractual attorney fees as the prevailing party in the confirmation proceedings. Hinman contends the arbitration awards should not have been confirmed because: (1) the arbitrator awarded attorney fees to FSW even though, by Hinman’s estimation, he was the prevailing party in the arbitration; and (2) the arbitrator imposed liability on Hinman personally. He further contends that the post-judgment order was erroneous, because the trial court awarded FSW attorney fees in the confirmation proceedings, in addition to what the arbitrator had awarded with respect to the arbitration itself. We will affirm the judgment and the order.
I. FACTS AND PROCEDURAL HISTORY
This appeal arises from an arbitration brought by FSW against Hinman to compel compliance with the terms of a software distribution and services agreement. The arbitration had two phases, resulting in two “partial final” awards and a “final” award (Final Award). The partial final arbitration award of July 2005 (First Award) was the subject of a previous appeal (A112781), in which we upheld the judgment confirming the arbitration award. The appeal now before us challenges the trial court’s confirmation of the arbitrator’s “PARTIAL FINAL AWARD No. 2” of March 2006, and the arbitrator’s “FINAL AWARD” of April 6, 2006.
To provide context for this appeal, we first quote from our background discussion in appeal number A112781. We then turn to the facts underlying the instant appeal.
A. Background, Initial Arbitration Award, and Appeal No. A112781
“In 2003, Hinman and his partner, Glenn K. Dent, together doing business as zBatch, were developing software for ‘batch’ processing. [FSW] sought to distribute the zBatch software to its customers in object code form. To this end, in October 2003 Hinman and Dent signed a “FSW/ZBATCH MASTER DISTRIBUTION AND SERVICES AGREEMENT” (Master Agreement) with FSW.
“[1.] Master Agreement and Escrow Agreement
“The Master Agreement was entered into as of September 1, 2003, by and between FSW and ‘zBatch, a dba for Howard E. Hinman and Glenn K. Dent.’ Under section 2.1 of the Master Agreement, zBatch licensed FSW to distribute the zBatch software and/or bundle it with FSW products.
Unless otherwise indicated, all further section references are to the Master Agreement.
“FSW provided zBatch software to its customers pursuant to license agreements that entitled customers to a year of product ‘maintenance.’ FSW’s customers could also purchase extended maintenance coverage. In turn, the Master Agreement required zBatch to provide certain technical support and maintenance services in regard to the needs of FSW’s customers. Under section 4.5, entitled ‘Technical Support and Services,’ FSW would provide ‘Level 0’ and ‘Level 1’ direct support to FSW’s customers, but Hinman and Dent would provide ‘Level 2’ support (through FSW’s personnel) and ‘Level 3’ support. zBatch’s support obligations under section 4.5 pertained to ‘all [FSW]’s customers that have a paid license and support agreement’ through FSW support personnel. In addition, under section 4.1, zBatch warranted to FSW that the software would perform in accordance with specification for 12 months after delivery to the FSW customer, and zBatch agreed to either modify or correct any defective software to specification, or accept return of the product and refund the corresponding royalty.
“Pursuant to section 3.1, Hinman and Dent received, as royalties, a percentage of the zBatch product license and technical support fees that FSW charged its customers.
“The term of the Master Agreement was set forth in sections 6.1 and 6.2. Under those provisions, the Master Agreement had a two-year initial term unless terminated earlier by breach or insolvency. Thus, the ‘natural’ termination date of the Master Agreement, as the parties call it, was September 1, 2005.
“Certain matters were to survive termination of the Master Agreement. Section 6.3, entitled ‘Wind-Down,’ dictated that customer licenses of zBatch software would continue in effect: ‘All licenses in effect upon termination or expiration and for which ZBATCH has been paid shall survive any termination or expiration of this Agreement or any of its terms.’ Section 6.3 also provided that the parties would jointly instruct an escrow holder as to the termination of an escrow for source code . . .: ‘As part of the Wind-Down related to the normal expiration of the agreement, the parties shall jointly instruct, [sic] DSI as to the termination of the Escrow Agreement. (Exhibit D: Section 5.1(a).)’ In addition, section 6.4 set forth specific provisions of the Master Agreement surviving its termination, including, inter alia, section 4.1.
“During the effective period of the Master Agreement, FSW sold the zBatch software to several customers, many of whom prepaid for continuing support and maintenance for periods extending beyond the Master Agreement’s September 1, 2005 expiration date. Hinman and Dent received over $100,000 for the zBatch product and their support and maintenance obligations.
“As noted above . . . section 4.6 required zBatch to deposit the source code for the zBatch software into escrow with a third-party escrow company, DSI Technology Escrow Services, Inc. (DSI), which was owned by Iron Mountain Inc. Section 4.6 read: “Source Code Escrow. Upon the execution of this Agreement ZBATCH shall place into escrow with Data Securities a fully commented copy of the source code of the ZBATCH Software and shall promptly supplement such source code escrow with any Updates and Revisions. The terms and conditions of the Escrow including the cases triggering the release of the code shall be as set forth in the Data Securities agreement attached hereto as Exhibit D. FSW will be responsible for the expenses associated with maintaining this Source Code Escrow Agreement.” (Bold in original.)
“Attached as exhibit D to the Master Agreement was the escrow agreement to which section 4.6 referred. The escrow agreement was effective February 6, 2004, among DSI, ZBATCH, LLC, and FSW. Pursuant to section 5.1, the escrow agreement had an initial term of one year (to February 6, 2005), and then automatically renewed from year-to-year unless, inter alia, zBatch and FSW jointly instructed DSI otherwise.
“Section 4.1 of the escrow agreement set forth two particular ‘Release Conditions’ for the release of the source code from escrow to FSW: zBatch’s bankruptcy or inability to pay its debts, or, under certain conditions, its uncured failure to carry out ‘its support obligations pursuant to the [Master Agreement] or any applicable support or maintenance agreement.’ Upon release to FSW, FSW could use the source code to provide support and maintenance to its customers. (Escrow agreement, § 4.5.) The ostensible purpose of the escrow, therefore, was to enable FSW to provide customer support and maintenance for the zBatch product if zBatch defaulted on its obligations under the Master Agreement to do so.
“[2.] Hinman’s Refusal to Deposit the Source Code Into Escrow
“When they signed the Master Agreement, Hinman and Dent had not yet finished developing their zBatch software and had no source code to deposit. In response to FSW’s inquiry, Hinman advised FSW on March 16, 2004, that zBatch was ‘planning to look into setting up the Escrow in about 30 days time as we get closer to having some production code to place into it.’ In January 2005, FSW again asked Hinman and Dent whether they had deposited the source code into escrow. Dent responded that he and Hinman had never agreed to the escrow and that the escrow agreement (attached to the Master Agreement as an exhibit) was “defective” because they had not signed it.
“FSW sent a notice of breach of section 4.6 in March 2005. On March 22, 2005, Dent executed the escrow agreement on behalf of Hinman and Dent. Nevertheless, they did not deposit the source code into escrow, this time claiming the escrow agreement was invalid because FSW had entered into a ‘side’ agreement with Iron Mountain (by which FSW agreed to indemnify Iron Mountain from liability to zBatch in case the source code was accidentally disclosed).
“[3.] Arbitration
“FSW initiated arbitration proceedings before the American Arbitration Association (AAA) in San Francisco in April 2005, pursuant to section 9.4, which required binding AAA arbitration of all disputes. FSW sought to compel Hinman and Dent, ‘dba zBatch,’ to comply with their obligation to deposit the source code into escrow. It also requested such further relief as the arbitrator might deem appropriate. Hinman and Dent, referring to themselves in their pleadings as ‘collectively, “zBatch,”’ answered FSW’s demand for arbitration and asserted numerous claims of breach as counterclaims. The AAA, having received no objection to the proposed site of the arbitration from Hinman and Dent, determined that the arbitration would be conducted in San Jose. The parties stipulated to the appointment of Maurice Zilber as arbitrator.
“By letter of May 6, 2005, Hinman and Dent (also referenced in their counsel’s correspondence as ‘collectively, “zBatch”’) purported to terminate the Master Agreement for FSW’s default of its material obligations. The letter did not identify the nature of the default, but apparently the primary complaint was FSW’s indemnity agreement with Iron Mountain.
“On May 12, 2005, FSW amended its arbitration demand to impose individual liability on Hinman and Dent, since zBatch was not incorporated as a limited liability company (LLC) and merely operated as a ‘dba’ of zBatch. Hinman and Dent then sought, on May 27, 2005, to incorporate zBatch as a Delaware LLC.
“The arbitrator bifurcated the issues and set an initial hearing on contract interpretation for July 18, 2005. This initial hearing was to determine the merits of the escrow issue and the support and maintenance issues, including (1) whether zBatch’s support obligations extended beyond the termination date of the Master Agreement, such that the obligation to maintain an escrow of the software source code also extended to the end of the support obligations, and (2) assuming zBatch’s allegations of FSW’s breaches were true, whether those breaches would constitute grounds for termination of the Master Agreement. A second hearing to be held in September 2005 would cover all significant remaining issues.
“The parties, represented by counsel, appeared at the July 18 arbitration hearing and presented extensive arguments and offers of proof to the arbitrator.
“The arbitrator issued a ‘Partial Final Award,’ dated July 31, 2005. The award determined that: (1) zBatch LLC, Hinman and Dent had continuing support obligations that survive termination of the Master Agreement and extend through the expiration of the last customer license and support agreement in effect at the time of termination; (2) zBatch LLC, Hinman, and Dent were required to deposit zBatch software source code into escrow within 10 business days from receipt of the partial final award, and (3) the determination of whether zBatch, Hinman and Dent were entitled to terminate the Master Agreement due to FSW’s breach was deferred until evidentiary hearings in September 2005. The arbitrator also deferred a determination of an award of attorney fees and costs.
“The partial final award was served by fax upon Hinman and Dent on August 1, 2005. Despite FSW’s urging, Hinman and Dent refused to comply with the arbitrator’s order to deposit the source code into escrow. Counsel for Hinman and Dent withdrew from their representation on or about August 26, 2005.
“[4.] State Court Petition to Confirm Arbitration Award
“On August 30, 2005, FSW filed a petition in San Francisco Superior Court to confirm the partial final award (Code Civ. Proc., § 1285), along with an application for a temporary restraining order (TRO).
“After a hearing on August 31, 2005, Judge Warren declined to order Hinman et al. to deposit the source code into escrow, but issued a TRO requiring them to maintain zBatch source code in a form compatible with versions supplied to FSW customers and for which zBatch had been paid, and to continue to provide technical services to FSW’s customers using zBatch, pursuant to section 4.1.
“On September 29, 2005, Hinman appeared in pro per in the trial court proceedings, filing an opposition to the motion to confirm the arbitration award, and a cross-motion to ‘modify/correct or, alternatively, vacate’ the arbitration award, recuse the arbitrator, and obtain a return of fees. Dent and zBatch LLC joined Hinman’s opposition and cross-motion.
“The parties appeared before Judge Warren for a hearing on the parties’ cross-motions on October 13, 2005. By order dated October 26, 2005, the judge ordered zBatch LLC, Dent, and Hinman to comply with the partial final award and deposit the zBatch source code into escrow. By order dated October 26, 2005 and filed October 31, 2005, the court confirmed the partial final award in its entirety and ordered entry of judgment. Judgment was entered on October 31, 2005. Hinman filed a notice of appeal from the judgment.
“[5.] Hinman’s Federal Action
“On the day that FSW filed its petition in state court (August 30, 2005), Hinman filed a pro se petition to vacate the award in the Northern District of California. FSW filed a cross-motion to confirm the arbitration award.
“After Judge Warren issued his October 31, 2005 judgment, the federal court, in February 2006, granted FSW’s motion to stay the federal proceedings under the abstention doctrine, indicating that Hinman ‘appear[ed] to be avoiding an adverse ruling’ by maintaining the federal proceedings. [Footnote omitted.]” (Fujitsu Software Corp. v. Hinman (Sept. 28, 2006, A112781) [nonpub. opn.] at pp. 1-7.)
6. Appeal No. 112781
On appeal from the judgment confirming the First Award, Hinman contended: (1) the judgment was void due to lack of personal jurisdiction; (2) the trial court erred in affirming the arbitration award because the arbitrator exceeded his powers; (3) the court abused its discretion by confirming an award that indentured Hinman to perform free work in violation of the 13th Amendment of the United States Constitution; and (4) the arbitrator was biased against him.
We rejected all of Hinman’s contentions and affirmed the judgment confirming the First Award.
B. The Second and Final Awards, Order on Attorney Fees, and Appeal
As mentioned, the arbitrator had deferred consideration of whether zBatch, Hinman, and Dent were entitled to terminate the Master Agreement due to purported breaches of FSW. In November 2005, the parties agreed to conduct the hearing on this second phase of the arbitration on December 19 and, if necessary, December 20, 2005.
Hinman, Dent, and zBatch had alleged in their counterclaims that FSW had breached numerous sections of the Master Agreement. In November 2005, Hinman added another counterclaim on zBatch’s behalf, alleging that FSW had breached section 2.2.2 by failing to provide its latest Windows COBOL compiler. FSW then added a new claim that Hinman breached section 2.2.2 by misusing FSW’s compiler products for his separate consulting activities.
Hinman and FSW each filed motions before the arbitration hearing. Hinman filed a request to vacate the first partial final arbitration award. He moved to dismiss the arbitrator for alleged bias. He also sought to postpone the December 19, 2005 hearing due to the holiday travel week and his wedding anniversary. FSW opposed this request, noting that Hinman must have known of the holidays and his anniversary when he agreed in November that the hearing would take place on December 19 and 20.
The arbitrator denied all of the parties’ pre-hearing motions. The parties exchanged pre-hearing briefs on December 12, 2005, and the hearing proceeded on December 19 and 20 as scheduled.
1. Arbitration Hearing
At the hearing, Hinman presented hours of testimony and “testimonial argument” on behalf of himself and Dent. Only one of his three witnesses appeared at the hearing. The parties presented documentary evidence as well.
2. Arbitrator’s Partial Final Award No. 2 (Second Award)
On March 2, 2006, the arbitrator issued a “PARTIAL FINAL AWARD No. 2” (Second Award). In the Second Award, the arbitrator ruled that “zBatch was not entitled to terminate the Master Agreement for cause on any basis alleged in [its] counterclaims” and was “not entitled to recover any damages” from FSW, but that Hinman was entitled to continue to use the FSW compilers in his possession without paying additional compensation to FSW. The arbitrator further ruled that FSW would recover from zBatch for the attorney fees and reasonable expenses FSW incurred “in connection with this arbitration,” and that zBatch would bear the AAA’s administrative fees and expenses and the arbitrator’s compensation and expenses. The Second Award defined “zBatch” the same way it was identified in the Master Agreement—as the “dba for Howard E. Hinman (‘Hinman’) and Glen[n] K. Dent (‘Dent’).”
In anticipation of the arbitrator’s Final Award, which would set forth the actual amount of attorney fees and costs awarded to FSW in connection with the arbitration, FSW filed a request for clarification that asked the arbitrator to confirm in the Final Award that the Second Award rendered Hinman and Dent personally liable for the attorney fees and costs awarded to FSW.
FSW also submitted a declaration indicating that FSW had incurred $279,313.19 for attorney fees and costs in the arbitration itself, while noting as well that “[t]he litigation total for matters concerning the confirmation or vacating of the first arbitration award [was] $200,876.97.” Hinman opposed FSW’s request for attorney fees and costs, arguing among other things that the arbitrator could not award the $200,876.97 incurred in the court proceedings because “the award of such fees [was] directly under the jurisdiction of the Judges of those courts, and these Judges have awarded no such fees in the cases currently before them.” Hinman continued: “Respondent respectfully argues that it would be highly inappropriate and an abuse of power for any Arbitrator to reach into any court room and order a party to pay fees and costs regarding any issue duly brought before those courts. This is under the sole jurisdiction of those Courts.”
3. Arbitrator’s Final Award
The arbitrator issued his “FINAL AWARD” on April 6, 2006. The arbitrator ruled that Hinman, Dent, and zBatch were jointly and severally liable to FSW for $270,000 (on FSW’s claim of $279,313.19) for “attorneys’ fees and expenses incurred by [FSW] in this proceeding.” The arbitrator did not address the $200,876.97 in fees incurred in confirming the arbitration award, which Hinman had urged were under the exclusive jurisdiction of the courts. The arbitrator also ruled that Hinman, Dent, and zBatch were jointly and severally liable for AAA expenses and the arbitrator’s compensation and expenses, and thus had to reimburse FSW for $13,648 that FSW had paid in that regard.
4. Judgment Confirming Second and Final Awards
FSW filed a petition in the trial court on April 21, 2006, to confirm the Second Award and the Final Award. On May 23, 2006, Hinman filed an opposition to FSW’s petition and a cross-petition to vacate the awards. Among other things, Hinman claimed that FSW was not entitled to attorney fees because he was the prevailing party, and the arbitrator erred in making Hinman and Dent personally liable.
The trial court confirmed the Second Award and the Final Award by written order filed on June 22, 2006. Judgment was entered on July 18, 2006, confirming the arbitration awards (including specifically the arbitrator’s award of $270,000 to FSW for attorney fees and expenses and $13,648 as reimbursement), and further ordering that FSW recover its reasonable attorney fees and costs “incurred in confirming and enforcing the awards.”
5. Order Awarding Additional Attorney Fees to FSW
On July 10, 2006, FSW filed a motion in the trial court requesting $133,571.55 in attorney fees as the prevailing party under Civil Code section 1717, in addition to the $270,000 awarded by the arbitrator, for attorney fees incurred in the proceedings confirming the arbitration awards. FSW supported its fee request with attorney billing statements, allocating its fees among the AAA, state, federal, and appellate proceedings.
Notwithstanding his representation to the arbitrator that the courts had sole jurisdiction to determine the attorney fees FSW incurred in confirming the arbitration awards, Hinman opposed FSW’s motion on the ground that FSW was attempting to “deceive” the trial court “into unknowingly revisiting the issue of an award of attorney’s fees that was previously decided by the Arbitrator in this matter.”
Before the hearing on FSW’s motion, FSW supplemented its fee request by $13,017.68 for its responses to Hinman’s opposition to the entry of judgment, his request for a stay, and his opposition to FSW’s fee request.
On August 7, 2006, the court awarded FSW $146,589.23 in attorney fees (both the $133,571.55 and the $13,017.68 FSW requested). Hinman filed a motion for reconsideration, which was denied.
This appeal followed.
II. DISCUSSION
Hinman contends it was error to confirm the Second Award and the Final Award because: the arbitrator abused his power in awarding attorney fees to FSW, since Hinman was really the prevailing party; and the arbitrator improperly modified one of the awards to impose liability on Hinman personally. Hinman further contends that the court erred in awarding FSW attorney fees in addition to what was awarded by the arbitrator. We address each contention in turn.
A. Judgment Confirming the Second and Final Arbitration Awards
The California Supreme Court determined the standard for judicial review of arbitration awards in Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1 (Moncharsh). The court noted that private arbitration is intended to be a “‘speedy and relatively inexpensive means of dispute resolution.’” (Id. at p. 9.) Particularly where, as here, the parties have agreed that disputes would be submitted to binding arbitration, the expectation is also that an arbitrator’s award will be final. (Ibid.) Because of these principles, the court concluded, “an arbitrator’s decision is not generally reviewable for errors of fact or law, whether or not such error appears on the face of the award and causes substantial injustice to the parties.” (Id. at p. 6.) Indeed, the merits of the controversy, the validity of the arbitrator’s reasoning, and the sufficiency of the evidence are not subject to judicial review. (Id. at p. 11.) Rather, review is strictly limited to instances in which there is “a statutory ground to vacate or correct the award.” (Id. at p. 28.)
Six statutory grounds for vacating an arbitration award are set forth in Code of Civil Procedure section 1286.2. Of these, Hinman comes closest to invoking Code of Civil Procedure section 1286.2, subdivision (a)(4), which provides that an arbitration award shall be vacated if “[t]he arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.” (Italics added.) An arbitrator “exceeds his powers when he acts in a manner not authorized by the contract or by law.” (Jordan v. Department of Motor Vehicles (2002) 100 Cal.App.4th 431, 443 (Jordan).) None of Hinman’s grounds for vacating the arbitration award falls within Code of Civil Procedure section 1286.2, subdivision (a)(4).
1. Arbitrator’s Award of Attorney Fees
Section 9.4 of the Master Agreement provides: “The substantially prevailing party shall be entitled to attorneys’ fees, witness fees and other costs awarded by the arbitrator.” Hinman does not dispute the arbitrator’s contractual authority to award attorney fees and costs, but claims the arbitrator erred in awarding FSW attorney fees because FSW was not the prevailing party.
In Hinman’s view, the arbitration resulted in a split decision: FSW won the first round (First Award) by obtaining an order requiring Hinman to place source code into escrow and continue support; but, Hinman claims, he prevailed on the major issue of the second round of the arbitration (Second Award) when the arbitrator permitted him to use FSW’s compilers in his possession. Hinman also points out that FSW was “not awarded a single penny in damages—not a penny,” and the $270,000 awarded by the arbitrator is more than twice the royalties he received during the distribution relationship.
Hinman’s arguments are meritless. First, an arbitrator’s award of attorney fees and costs may not be attacked on the ground that the arbitrator erred factually or legally in determining the prevailing party. (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 23-26 (Pierotti); Creative Plastering, Inc. v. Hedley Builders, Inc. (1993) 19 Cal.App.4th 1662, 1666 [court “lack[s] the authority to reverse or modify [an] arbitrator’s prevailing party finding].) Indeed, an attempt to obtain review on this issue is subject to sanctions. (Pierotti, supra, at pp. 31-33.) Because the arbitrator in this matter had contractual authority to determine the prevailing party, as a matter of law neither we nor the trial court could strike the arbitrator’s award on the ground that the arbitrator erred in making this determination.
Second, Hinman fails to establish that the arbitrator erred in deeming FSW to be the “substantially prevailing party.” FSW certainly prevailed in the First Award, which rejected Hinman and Dent’s claim that they did not need to place their zBatch source code into escrow. In the Second Award, the arbitrator rejected all of Hinman and Dent’s eight counterclaims. Although the arbitrator allowed Hinman to use FSW’s compiler in his possession, it was not unreasonable for the arbitrator to conclude that FSW substantially prevailed in the second phase of the arbitration (Second Award), as well as the first phase and the arbitration overall (Final Award).
Third, the arbitrator did not abuse its discretion in setting the amount of the award. Although Hinman claims the award was “excessive” in light of the amounts he received under the Master Agreement, he provides no authority for the proposition that the amount of attorney fee compensation awarded to the opposing party is limited by the amount the losing party earned under the contract. Nor does Hinman demonstrate that the invoices submitted to the arbitrator were inaccurate or failed to substantiate the arbitrator’s calculation of the award.
The trial court did not err in confirming the arbitrator’s award of attorney fees.
2. Arbitrator’s Clarification in Final Award Regarding Personal Liability
Hinman contends that the arbitrator erred in the Final Award in stating that Hinman was personally liable for FSW’s attorney fees and costs, because in so doing the arbitrator improperly modified the Second Award. Specifically, Hinman contends that the Second Award named zBatch LLC—not Hinman as an individual—as the party liable for FSW’s attorney fees and costs. He therefore characterizes FSW’s request to the arbitrator as a request to modify the Second Award, which the arbitrator approved in the Final Award by stating expressly that Hinman was personally liable.
Hinman’s argument has no merit. It is not the case that the arbitrator held only zBatch LLC liable in the Second Award and then changed his mind in the Final Award by holding Hinman, Dent, and zBatch LLC jointly and severally liable. The Second Award was against Hinman and Dent personally, as it defined them as follows: “zBatch, a dba for Howard E. Hinman (‘Hinman’) and Glen[n] K. Dent (‘Dent’) (collectively referred to as ‘[z]Batch’).” (Italics added.) Persons behind a “dba” are personally liable for any claim against it, since use of a fictitious business name does not create a separate legal entity or insulate the individuals from personal liability. (Pinkerton’s, Inc. v. Superior Court (1996) 49 Cal.App.4th 1342, 1348.) The Second Award against “zBatch” thus made Hinman and Dent personally liable, and the arbitrator’s express statement to that effect in the Final Award was not a modification of the Second Award. Indeed, FSW’s letter to the arbitrator sought to clarify the Second Award in regard to Hinman’s personal liability, not to modify it.
In any event, whether it was accomplished by clarification of the Second Award or by a modification, Hinman fails to establish that the arbitrator abused his discretion in making Hinman personally liable. We addressed a similar issue in appeal number A112781, ruling that the arbitrator had not erred in holding Hinman and Dent, as well as zBatch LLC, responsible for continuing support obligations and depositing the source code into escrow. Not only are persons behind a “dba” personally liable for any claim against it, an arbitrator has broad discretion to fashion an appropriate remedy under the circumstances. (Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 373, 381, 383.) As we pointed out in the prior appeal, Hinman was one of the individuals who agreed to perform, and could and would perform, zBatch’s obligations under the Master Agreement. (A112781, at p. 18.) Here, the Second Award was imposed against “zBatch, a dba for Howard E. Hinman (‘Hinman’) and Glen[n] K. Dent (‘Dent’),” which is how those parties were identified in the Master Agreement, and it was Hinman who represented zBatch as well as himself and Dent in prosecuting the counterclaims for FSW’s purported breaches of the Master Agreement in the second phase of the arbitration.
3. Trial Court’s Confirmation of Arbitrator’s Award of Fees
Hinman contends it was error for the trial court to confirm the arbitrator’s award of attorney fees, because although FSW prevailed in the first round of the arbitration, it did not recover any damages.
Hinman’s contention is unavailing, again for multiple reasons. First, as mentioned, the arbitrator’s prevailing party determination is not reviewable by the court. (Pierotti, supra, 81 Cal.App.4th at pp. 23-26.) The trial court could not have declined to confirm the arbitration award on the ground that Hinman was the prevailing party.
Second, it is immaterial that FSW did not recover monetary damages. A party may be a prevailing party if it obtains non-monetary relief (such as what FSW obtained here). The prevailing party is the one who more significantly prevailed on its claims, whether or not those claims sought money.
Lastly, the cases on which Hinman relies are inapposite. In Horning v. Shilberg (2005) 130 Cal.App.4th 197 (Horning), the plaintiff “suffered no damages” and thus recovered no relief (monetary or non-monetary) against the defendant. (Id. at pp. 201-202.) The appellate court in Horning held that the trial court had not abused its discretion in deeming the defendant to be the prevailing party and awarding the defendant contractual attorney fees. (Id. at pp. 202, 209-210.) The holding in Horning, however, is not instructive in the matter before us, since the Horning court did not specifically address the propriety of the prevailing party determination. (Ibid.) At any rate, Horning is factually distinguishable. While the plaintiff in Horning recovered nothing against the defendant, FSW recovered non-monetary relief against Hinman and Dent—an order requiring them to deposit their source code into escrow and confirming that their support and maintenance obligations continued after the Master Agreement’s termination for pre-paying customers.
Hinman also refers us to the following sentence in Sapp v. Barenfeld (1949) 34 Cal.2d 515, 524 (Sapp): “Proof that a contract has been breached is not sufficient to entitle a party to damages for the breach without proof that damage has been suffered.” Sapp, however,is not on point. Sapp held, among other things, that an arbitrator did not have to consider a claim of breach where there was no evidence that the purported breach caused any damages. (Ibid.) This holding was based on the principle that damage is an essential element of a cause of action. But Sapp had nothing to do with whether a party who obtains non-monetary relief and defeats the other parties’ claims may be a prevailing party for purposes of awarding attorney fees. Moreover, while Sapp involved a party’s failure to offer evidence sufficient to support an essential element of a claim, FSW proved its entitlement to injunctive and declaratory relief and defeated all of Hinman’s counterclaims.
Hinman has failed to establish any error in the trial court’s judgment confirming the Second Award and the Final Award.
B. Trial Court’s Post-Judgment Order Awarding Additional Attorney Fees
Hinman challenges the trial court’s post-judgment order awarding FSW $146,589.23 in attorney fees, beyond the $270,000 in attorney fees and costs awarded by the arbitrator. He contends that he was subjected to a “sort of ‘double jeopardy’” because the court’s award of $146,589.23 in attorney fees was for the same period of time as the arbitrator’s award of attorney fees. He also maintains that the order constituted a modification of the Final Award, and it was therefore errant because FSW did not file a petition for modification pursuant to Code of Civil Procedure section 1285. Hinman does not dispute that the amount of the fees was supported by the evidence.
Civil Code section 1717, subdivision (a) provides: “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.”
Here, FSW was entitled to its reasonable attorney fees and costs under Civil Code section 1717. The action was on a contract—the Master Agreement. Section 9.4 of the Master Agreement provided that attorney fees and costs could be recovered by the substantially prevailing party. (Ajida Technologies, Inc. v. Roos Instruments, Inc. (2001) 87 Cal.App.4th 534, 552 (Ajida) [a “contract [fee] provision that permits the recovery of fees in arbitration is broad enough to include fees in related judicial proceedings”].) As discussed above, FSW was the prevailing party under the First Award, as well as the Second Award and Final Award. Furthermore, both the First Award and the Second Award and Final Award were confirmed in the trial court, making FSW the prevailing party in the trial court confirmation proceedings as well. (See generally Hsu v. Abbara (1995) 9 Cal.4th 863, 874-877 [where party unequivocally wins on a contract claim, it is the prevailing party; where the decision on a contract claim does not represent an unqualified win for either party, trial court has discretion under Civil Code section 1717 to determine who prevailed]; Sears v. Baccaglio (1998) 60 Cal.App.4th 1136, 1158 [court’s discretion in determining prevailing party is particularly broad]; McLarand, Vasquez & Partners, Inc. v. Downey Savings & Loan Assn. (1991) 231 Cal.App.3d 1450, 1456 [same].)
The $146,589.23 awarded in the trial court’s attorney fees order of August 7, 2006, was the amount FSW incurred in the state, federal, and appellate court proceedings—essentially the attorney fees incurred in obtaining confirmation of the arbitration awards, as opposed to the fees incurred in the arbitration proceedings themselves. Hinman’s argument that FSW should not be able to recover them because they were referenced in FSW’s application for attorney fees to the arbitrator is specious.
In its application to the arbitrator, FSW distinguished between the attorney fees incurred in the arbitration proceedings and the fees incurred in obtaining confirmation of the award. After FSW referenced the amount of attorney fees incurred in confirming the award, Hinman represented to the arbitrator that such fees were solely within the jurisdiction of the courts. The arbitrator thereafter did not award fees and costs pertaining to the confirmation of the arbitration awards, omitting any reference to those fees and costs altogether from the Final Award. Instead, the arbitrator characterized FSW’s declaration in support of its fee request as directed only to the amount of its arbitration fees and costs, describing FSW’s declaration as a “Declaration with respect to Attorneys’ Fees and Costs total[ing] $279,313.19”and concluding that “Hinman, Dent and zBatch LLC shall jointly and severally pay to Fujitsu $270,000 in respect to attorneys’ fees and expenses incurred by Fujitsu in this proceeding.” (Italics added.) In other words, consistent with Hinman’s argument, the arbitrator imposed attorney fees only for fees incurred in the arbitration proceeding.
Because Hinman argued successfully in the arbitration that the arbitrator could not award attorney fees for the court proceedings due to the trial court’s exclusive jurisdiction, he is barred by the doctrine of judicial estoppel from arguing that the trial court had no authority to award the fees. (Weinberg v. Safeco Ins. Co. of America (2004) 114 Cal.App.4th 1075, 1085 [party judicially estopped from claiming that arbitrator should have awarded costs and prejudgment interest, because during the arbitration the party argued that the arbitrator could not be requested to make such an award].)
Moreover, since the arbitrator’s Final Award did not address the award of attorney fees incurred in regard to the confirmation of the arbitration awards, it was neither prejudicial nor erroneous for the trial court to consider those fees. Because Hinman fails to demonstrate that the trial court erred in calculating the amount of the fees, he has not demonstrated error in the trial court’s award.
Lastly, Hinman’s argument that the trial court’s award of attorney fees is precluded by Code of Civil Procedure section 1285 is meritless. Code of Civil Procedure section 1285 provides that an arbitration award may be modified by filing a petition in the trial court. In seeking its attorney fees incurred in confirmation of the arbitration awards, FSW was not attempting to modify the Final Award, but to obtain recovery for a category of attorney fees that the Final Award had notaddressed. Code of Civil Procedure section 1285 did not apply.
Code of Civil Procedure section 1285 reads: “Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award. The petition shall name as respondents all parties to the arbitration and may name as respondents any other persons bound by the arbitration award.”
Hinman has failed to establish that the trial court erred in awarding FSW attorney fees in its order of August 7, 2006.
III. DISPOSITION
The judgment and the post-judgment order of August 7, 2006, are affirmed.
We concur. JONES, P. J., GEMELLO, J.