Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Los Angeles County Superior Court No. BS085380, Soussan G. Bruguera, Judge.
Overland Borenstein Scheper & Kim and Mark A. Borenstein, Diann H. Kim and Jeanie Kim for Plaintiffs and Appellants Marcus & Millichap Real Estate Investment Brokerage Corp., Tony Azzi and John P. Walsh.
Bingham McCutchen and Daniel Alberstone and Peter F. Smith for Defendants and Respondents Woodman Investment Group and Eli Sasson; Eric A. Schreiber for Defendant and Respondent Eli Sasson.
PERLUSS, P. J.
Marcus & Millichap Real Estate Investment Brokerage Corporation, Tony Azzizi and John P. Walsh (collectively Marcus & Millichap) appeal from an order awarding Woodman Investment Group, LLC and its managing partner Eli Sasson (collectively Woodman defendants) more than $115,000 in attorney fees following the issuance of the remittitur in Marcus & Millichap Real Estate Investment Brokerage Co. v. Woodman Investment Group (2005) 129 Cal.App.4th 508 (Woodman I), which awarded the Woodman defendants their costs on appeal. We reverse the order to the extent it awards the Woodman defendants nearly $80,000 in attorney fees for matters unrelated to the appeal in Woodman I and, in all other respects, affirm.
FACTUAL AND PROCEDURAL HISTORY
1. The Arbitration Agreement
Marcus & Millichap Real Estate Investment Brokerage Corporation entered into a written agreement with Woodman Investment Group in 2001 to represent it in connection with the sale of a shopping center located in Van Nuys, California. The representation agreement contained an arbitration provision requiring the parties to arbitrate any controversy “with respect to the subject matter of this [r]epresentation [a]greement or the transaction contemplated herein.” It also contained an attorney fee provision, authorizing an award of reasonable attorney fees to the prevailing party “[i]n any litigation, arbitration or other legal proceeding” arising under the representation agreement.
2. The Underlying Arbitration and Trial Court’s Order Vacating Arbitration
After a dispute arose between Marcus & Millichap and the Woodman defendants involving the representation agreement, Marcus & Millichap filed a demand for arbitration. On August 8, 2003, following a hearing in arbitration, the arbitrator issued an award in favor of Marcus & Millichap totaling nearly $300,000.
On August 27, 2003 Marcus & Millichap initiated an action in the Los Angeles Superior Court pursuant to Code of Civil Procedure section 1285 to confirm the arbitration award. On September 3, 2003 the Woodman defendants filed an answer to the petition to confirm the award and concurrently filed a cross-petition to vacate the award, arguing the arbitrator had exceeded her jurisdiction because Sasson was not a signatory to the representation agreement containing the arbitration provision. On December 10, 2003 the trial court agreed with the Woodman defendants and granted their petition to vacate the arbitration award in its entirety, concluding the award against Sasson could not be vacated without affecting the merits of the arbitrator’s decision as to the Woodman Investment Group. In the same order the court denied Marcus & Millichap’s petition to confirm the arbitration award.
3. The Woodman Defendants’ Motion to Recover Attorney Fees as the Prevailing Parties on the Petition to Vacate the Arbitration Award
On December 17, 2003 the Woodman defendants filed a motion to recover reasonable attorney fees as the prevailing party in connection with its successful petition to vacate the arbitration award. Marcus & Millichap opposed the motion. On March 2, 2004 the court issued a minute order granting the Woodman defendants’ motion for attorney fees, and on March 29, 2004 issued a signed order awarding the Woodman defendants $33,492.50 in attorney fees as the prevailing parties in the proceedings on their petition to vacate the arbitration award.
4. Marcus & Millichap’s Appeal of the Attorney Fee Order and its Motion to Compel Sasson to Arbitration
Marcus & Millichap did not appeal from the court’s December 10, 2003 order vacating the arbitration award. It did, however, appeal from the March 29, 2004 order awarding the Woodman defendants their attorney fees in connection with their successful petition to vacate the arbitration award. On April 15, 2004, the same day it filed its notice of appeal from the attorney fee order, Marcus & Millichap also filed a motion in the trial court (under the same case number as its original petition) to compel arbitration against Sasson on the theory that Sasson was the alter ego of Woodman Investment Group. On May 17, 2004 Marcus & Millichap also filed a new demand for arbitration before the American Arbitration Association.
Marcus & Millichap filed an amended motion for an order compelling arbitration against Sasson as the alter ego of Woodman Investment Group on April 30, 2004.
5 Marcus & Millichap’s Motion to Compel Arbitration
On May 27, 2004, while the appeal from the March 29, 2004 attorney fee order was pending, the trial court granted Marcus & Millichap’s motion to compel Sasson to arbitration, explaining at the hearing that it had vacated the arbitration on the technicality that Sasson was not a signatory to the representation agreement containing the arbitration provision and had always intended a rehearing of the arbitration upon a proper finding that Sasson was the alter ego of Woodman Investment Group. Thereafter, the trial court denied the Woodman defendants’ several motions directed to challenging that order (including a June 18, 2004 motion for judgment on the pleadings and a motion to vacate the May 27, 2004 order granting the motion to compel arbitration), rejecting the argument it lacked jurisdiction to consider the motion to compel arbitration or to order arbitration once time to appeal the December 10, 2003 order vacating the arbitration award had lapsed.
6. Our Affirmance of the Attorney Fee Order (Woodman I)
On May 17, 2005 we filed our opinion in Woodman I, supra, 129 Cal.App.4th 508, affirming the trial court’s order granting the Woodman defendants’ motion for $33,492.50 in attorney fees on the ground they were the prevailing parties in the proceedings on the petition to vacate the arbitration award. We rejected the suggestion that the continuing proceedings in the trial court rendered the order vacating the arbitration not yet final or appealable. We explained, “Whether or not Marcus & Millichap is correct in asserting it may initiate another arbitration proceeding to determine its right to a commission without an express order for rehearing pursuant to section 1287 -- an issue not presented by Marcus & Millichap’s appeal from the order awarding costs and attorney fees and as to which we express no view -- its argument that the judicial proceeding it initiated is not yet ‘final’ is unpersuasive.” (Woodman I,at p. 514.) When an order vacates an arbitration without ordering a rehearing, the “order[] . . . is, of necessity, ‘final.’” (Id. at p. 515.) We awarded the Woodman defendants their costs on appeal. (Id. at p. 517.)
7. The Woodman Defendants’ Motions to Recover Attorney Fees in the Trial Court Following our Remittitur
Following issuance of the remittitur in Woodman I, supra, 129 Cal.App.4th 508, on June 24, 2005 the Woodman defendants moved for reconsideration of the trial court’s ruling denying their motion for judgment on the pleadings directed to Marcus & Millichap’s April 15, 2004 motion to compel arbitration on the ground the trial court lacked jurisdiction to order arbitration following its initial order vacating the arbitration award. The Woodman defendants argued our decision in Woodman I, which held the December 10, 2003 order vacating the arbitration was a final order, demonstrated the trial court had erred in denying their original motion.
A few days later, on June 28, 2005, the Woodman defendants filed a motion to recover attorney fees and costs in the amount of $111,220 pursuant to the attorney fee provision in the representation agreement. The Woodman defendants explained they had incurred $35,573.50 in attorney fees in connection with the appeal in Woodman I, supra, 129 Cal.App.4th 508 and $67,446.50 in connection with “postarbitration judicial proceedings,” defined as “all judicial proceedings in the trial court following the trial court’s February 9, 2004 order awarding the Woodman defendants their attorney fees as the prevailing party” in the proceedings on the petition to vacate the award; and “expected” to incur an additional $8,200 in connection with both the motion for reconsideration and motion for attorney fees. Both motions were set for hearing on July 28, 2005.
Although the Woodman defendants’ attorney fee motion stated the court awarded attorney fees on February 9, 2004, the actual order was made on March 29, 2004.
Marcus & Millichap opposed both the motion for reconsideration and the motion for attorney fees. As to the attorney fee motion, they observed the bulk of the fees requested ($67,446.50) related to their second motion to compel Sasson to arbitration, proceedings that were not yet final and thus for which no prevailing party could be determined. They also argued the amount of fees sought was unreasonable.
On November 11, 2005, after taking the matter under submission following the July 28, 2005 hearing and without ruling directly on either the motion for reconsideration or the motion for attorney fees, the trial court simply “dismissed the action without prejudice.” At a December 5, 2005 hearing on the Woodman defendants’ motion for clarification of the court’s November 11, 2005 order, the court explained it dismissed the case “pursuant to” our decision in Woodman I:“I did not act on [the] motions whatsoever because the matter should have been dismissed as soon as the appellate court sent the decision down. And I think the decision said that I correctly vacated -- ruled in your [the Woodman defendants’] favor and vacated the arbitration award. I correctly granted you attorney’s fees. And then my job in that action was over and so I dismissed the case.” The court also explained it viewed the second motion to compel arbitration as a separate action, distinct from the initial petition, and did not intend to dismiss that separate action. The court invited the Woodman defendants to bring a new motion for attorney fees if they believed they were entitled to additional fees following its order dismissing the action.
On December 23, 2005 Woodman filed a new motion for attorney fees. This time, the Woodman defendants sought $115,832.50 in attorney fees, providing the same basic calculations as in the prior motion, but adding an additional $4,612 in attorney fees incurred in connection with the prior reconsideration and attorney fee motion as well as the December 23, 2005 motion for attorney fees. After holding a hearing on March 2, 2006 and taking the matter under submission, on June 15, 2006 the court granted the motion in its entirety and awarded the Woodman defendants $115,832.50 in attorney fees. The June 15, 2006 attorney fee order is the subject of the instant appeal.
8. The Woodman Defendants’ Purported Appeal from the November 11, 2005 Minute Order Dismissing the Case
While the parties were still litigating the attorney fee issue in the trial court, on January 3, 2006 the Woodman defendants filed a notice of appeal purporting to appeal from the trial court’s November 10, 2005 minute order dismissing the case. In their briefs filed in connection with that appeal, the Woodman defendants argued the court lacked jurisdiction to issue its May 27, 2004 order compelling them to arbitration. Although neither the order granting the motion to compel arbitration nor the court’s unsigned minute order purporting to dismiss the case was an appealable order (Code Civ. Proc., § 1294; Muao v. Grosvenor Properties, Ltd. (2002) 99 Cal.App.4th 1085, 1088-1089 [order granting petition to compel arbitration not appealable order]; Code Civ. Proc., § 581d [to be appealable order, dismissal must be in form of written order signed by court]), we exercised our discretion to treat the improper appeal as a petition for writ of mandate to reach the merits of the dispute. (See Woodman Investment Group, LLC v. Superior Court (July 23, 2007, B188553) [nonpub. opn.] at p. 11 (Woodman II).)
On July 23, 2007 we issued our decision Woodman II, supra, B188553, holding the trial court had jurisdiction to compel arbitration notwithstanding the court’s failure to expressly order a rehearing in conjunction with its initial order vacating the arbitration award. In reaching that conclusion, we explained, although the second motion to compel Sasson to arbitration should have been filed as a petition in a separate proceeding, the fact it was mistakenly filed in the same proceeding with the same case number did not change the character of the motion as an initiation of a separate proceeding following a final order vacating the arbitration award. We also found substantial evidence supported the court’s finding Sasson is the alter ego of Woodman Investment Group. (Woodman II,B188553, at pp. 13-16, 18-20.)
CONTENTIONS
Marcus & Millichap contends the court erred as a matter of law in awarding the Woodman defendants $79,029 in attorney fees for postarbitration judicial proceedings unrelated to the appeal in Woodman I, supra, 129 Cal.App.4th 508. They also contend the court abused its discretion in awarding the Woodman defendants $35,573.50 in attorney fees in connection with the appeal in Woodman I because that amount of fees is unreasonable.
DISCUSSION
1. Standard of Review
The question of a party’s entitlement to attorney fees is a legal issue subject to de novo review. (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175-1176; Leamon v. Krajkiewcz (2003) 107 Cal.App.4th 424, 431; Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142.) The question whether the amount of a legally authorized fee award is reasonable, however, is a matter within the trial court’s broad discretion and will only be disturbed on appeal when that discretion is manifestly abused. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 [trial court enjoys “broad discretion” in determining amount of reasonable attorney fees because experienced trial judge is in best position to decide value of professional services rendered in court]; MHC Financing Limited Partnership Two v. City of Santee (2005) 125 Cal.App.4th 1372, 1397; see also Fed-Mart Corp. v. Pell Enterprises, Inc. (1980) 111 Cal.App.3d 215, 228 [appellate court will interfere with determination of reasonable attorney fees “only where there has been a manifest abuse of discretion”].)
2. The Woodman Defendants Were Not Legally Entitled to Attorney Fees for Postarbitration Judicial Proceedings Involving Marcus & Millichap’s April 15, 2004 Motion to Compel Arbitration
The Woodman defendants were the prevailing parties on the petition to vacate the arbitration award; and, for that effort, the trial court awarded them $33,492.50 in attorney fees, an order we affirmed in Woodman I, supra, 129 Cal.App.4th 508. We also awarded the Woodman defendants their costs on appeal, which, in the context of this case, required the trial court to determine reasonable attorney fees incurred on appeal. (Id. at p. 516.) Instead of limiting their request in the trial court to attorney fees and other costs incurred in connection with the appeal in Woodman I, however, the Woodman defendants renewed their motion for reconsideration of the trial court’s order denying judgment on the pleadings and filed a motion seeking all attorney fees incurred in the postarbitration judicial proceedings leading up to the trial court’s November 10, 2005 minute order purporting to dismiss “the action.” According to the Woodman defendants, the trial court proceedings involving the cross-petitions to vacate and confirm the arbitration award and the subsequent (and successful) effort by Marcus & Millichap to compel Sasson to arbitration constituted “one proceeding” in which they were the prevailing party, having obtained an order vacating the arbitration. Although they acknowledge Marcus & Millichap succeeded in its subsequent motion to compel Sasson to arbitration, they insist the trial court was without jurisdiction to make that order; and the trial court realized as much when it issued its November 10, 2005 minute order “dismissing the action.”
In Woodman II, supra, B188553, we expressly rejected the argument that the August and September 2003 cross-petitions to confirm and vacate the arbitration award comprised the same proceeding as Marcus & Millichap’s subsequent April 15, 2004 motion to compel Sasson to arbitration. We held, whether or not Marcus & Millichap should have filed a new petition to compel arbitration rather than filing a motion under the same case number as the original cross petitions to confirm and vacate the arbitration award, the effect of the April 15, 2004 motion to compel Sasson to arbitration was to initiate a separate proceeding: “Regardless of whether a petition to compel arbitration should have been filed under the old case number or a new one, the trial court had jurisdiction to hear it. A petition to compel arbitration would have commenced a judicial proceeding distinct and separate from the judicial proceeding involving the petitions to confirm and vacate the arbitration award which had since become final. We do not hold otherwise simply because Marcus & Millichap filed a motion to compel arbitration in a judicial proceeding it (and the trial court) believed was still pending.” (Woodman II, supra, B188553, at p. 13.) Whatever the November 10, 2005 minute order purporting to dismiss the action was intended to accomplish, it was not intended to dismiss the second and distinct proceeding initiated on April 15, 2004 to compel Sasson to arbitration. (Ibid.)
Thus, although the Woodman defendants are plainly the prevailing parties in the first proceeding involving cross-petitions to confirm and vacate the arbitration award and were properly awarded their attorney fees in the trial court in connection with that proceeding (see Woodman I, supra, 129 Cal.App.4th at pp. 514-515), they are not the prevailing parties in connection with Marcus & Millichap’s second and successful effort to compel Sasson to arbitration. In that proceeding, there has been no final order disposing of the action (see Code Civ. Proc., § 1294 [order compelling arbitration not appealable order]; Gordon v. G.R.O.U.P., Inc. (1996) 49 Cal.App.4th 998, 1004, fn. 8 [order compelling arbitration not appealable except upon order confirming arbitration award]; Muao v. Grosvenor Properties, Ltd., supra, 99 Cal.App.4th 1085[same]), and thus no “prevailing party” for purposes of awarding attorney fees. (See La Pietra v. Freed (1978) 87 Cal.App.3d 1025, 1030, 1031 [because trial court’s ruling granting Freed’s motion to compel arbitration was “interlocutory in nature and as such not appealable as a final judgment,” “there was no final determination of the rights of the parties and Freed is therefore not a prevailing party” and “not entitled to attorney’s fees at this time”]; see also Lindenstadt v. Staff Builders, Inc. (1997) 55 Cal.App.4th 882, 894, fn. 9 [once arbitration is ordered, absent a subsequent order confirming or vacating arbitration award, there is no “prevailing party” and no basis for trial court to award attorney fees].)
3. The Trial Court Did Not Abuse Its Discretion in Awarding the Woodman Defendants $35,573.50 in Connection with the Appeal in Woodman I
Although Marcus & Millichap acknowledges the Woodman defendants are entitled to their attorney fees as the prevailing parties in connection with the appeal in Woodman I, supra, 129 Cal.App.4th 508, it urges the amount of the award -- $35,573.50 -- is inherently unreasonable and amounts to an abuse of the trial court’s discretion. In connection with their attorney fee request, the Woodman defendants provided the declaration of its attorney, Daniel Alberstone, who testified as to his billing rate of $410 an hour and provided a copy of the invoices detailing that he spent more than 82 hours on the appeal. He also testified his associates had spent a number of hours assisting him in that effort and explained the issues raised by Marcus & Millichap in the appeal, including its challenge to the finality of the trial court’s order vacating the arbitration, presented additional issues that made the appeal much more complex than it would otherwise have been. Although the amount of the award may seem high when compared to the $2,050 in attorney fees Marcus & Millichap asserts the trial court awarded the Woodman defendants in preparing and arguing their motion for attorney fees in the trial court, in light of the trial court’s broad discretion in these matters and the evidence presented in support of the award, we cannot say the trial court “manifestly abused its discretion” in awarding $35,573.50 in attorney fees in connection with the Woodman I appeal. (See PLCM Group, Inc. v. Drexler, supra, 22 Cal.4th at p. 1095.)
The Woodman defendants’ request for judicial notice of various documents filed in Woodman I, supra, 129 Cal.App.4th 508 to illustrate the complexity of the appeal is denied as unnecessary; judicial notice is not required for us to review court filings in Woodman I.
We reject Marcus & Millichap’s contention the attorney fee order must be reversed in its entirety because it is impossible to determine the portion of the fee award attributable to the appeal in Woodman I, supra, 129 Cal.App.4th 508. In fact, the trial court ordered a total of $115,832.50 in attorney fees in accordance with the amounts requested in the attorney-fee motion, which expressly stated $35,573.50 of that amount was incurred in connection with the Woodman I appeal.
DISPOSITION
The June 15, 2006 order of attorney fees is reversed to the extent it awards the Woodman defendants $79,029 in attorney fees unrelated to the appeal in Woodman I, supra, 129 Cal.App.4th 508. In all other respects, the order is affirmed. Each party is to bear his and its own costs on appeal.
We concur: WOODS, J., ZELON, J.