Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. C03-02249
Sepulveda, J.
Appellant Robert L. Sanders Professional Law Corporation and respondent Renée Cooper participated in binding arbitration to resolve a dispute arising from appellant’s representation of respondent in her divorce proceedings. The trial court confirmed the arbitrator’s decision finding in favor of respondent, and also awarded respondent $25,000 in attorney fees pursuant to a stipulation between the parties resolving a separate action in bankruptcy court. Appellant argues that the trial court lacked jurisdiction to award respondent her attorney fees pursuant to the stipulation, and that the trial court misinterpreted the stipulation authorizing attorney fees. We affirm.
I.
Factual and Procedural Background
In April 2002, respondent entered into a retainer agreement with appellant to represent her in a dissolution of marriage proceeding that had been pending for nearly two years. The agreement provided that any dispute regarding legal malpractice would be subject to compulsory, binding arbitration. Appellant was substituted in as counsel on April 22, 2002, and represented respondent until July 17, 2003, when he withdrew as counsel. During that time, appellant billed respondent a total of more than $200,000 for attorney fees, administrative costs, costs advanced, and late fees.
On September 10, 2003, appellant filed the complaint in the instant action for breach of contract and two other causes of action, alleging that respondent owed $76,900.02 in unpaid fees for services rendered. Respondent filed a cross-complaint alleging malpractice on July 8, 2004.
On March 31, 2005, appellant filed a petition for involuntary bankruptcy against respondent (11 U.S.C. § 303); appellant apparently was the only creditor in the case. (In re Renee Cooper (E.D.Cal., No. 05-23593-D).) About a year later, the parties entered into a stipulation (the stipulation) that resolved the bankruptcy proceeding, but not the instant action. The stipulation provided, in relevant part, that appellant and respondent “agree that any claim under [section] 303(i) [of the Bankruptcy Code] is waived except with respect to attorneys’ fees as specifically agreed to as follows: [¶] If a final nonappealable judgment is entered in the Complaint filed by [appellant] against [respondent] in the state court case, Contra Costa Superior Court Case Number C03-02249 [the instant action], in favor of [appellant] in an amount less than 12, 300, [respondent] shall be entitled to a judgment against [appellant] for $25,000 as for [respondent’s] attorneys’ fees incurred in the involuntary [bankruptcy] proceeding; [¶] If a final nonappealable judgment is entered in the [instant action] in favor of [appellant], in the amount of 12, 300 or more, $20,000 shall be added to said judgement [sic] as for [appellant], attorneys’ fees incurred in the involuntary proceeding[.]” The agreement further provided: “All remaining issues between the parties shall be left to the determination of the state court.”
On October 23, 2006, appellant filed a petition in the instant action to compel arbitration of respondent’s cross-complaint alleging malpractice against him. The trial court granted the petition and ordered that the parties “proceed to arbitration in the manner prescribed by their Arbitration Agreement[] and that the arbitrator is to determine the arbitrability of fees.” Robert Sanders, the owner of appellant law firm, later filed a declaration stating that the reference to the arbitrability of fees was a “provision requiring the arbitrator to determine whether my claim for unpaid fees could be arbitrated.” The order granting the petition to compel arbitration did not refer to the stipulation. The trial court later granted appellant’s motion to compel respondent’s compliance with the arbitration order, but did not modify the issues to be considered by the arbitrator.
Following a one-day arbitration hearing at which respondent proceeded in propria persona, the arbitrator issued a written decision dated July 14, 2008. The arbitrator found that appellant had “failed in several respects to perform some of the services he was retained to perform” for respondent, had not appeared for a scheduled hearing in the divorce proceedings, had failed to take steps to recover $16,067 in attorney fees which respondent had been awarded, and that the amount of appellant’s claimed fees was “overreaching.” The arbitrator ordered that respondent was not obligated to pay any further attorney fees or costs to appellant. The arbitrator further ordered that appellant “shall pay to the prevailing party, [respondent], her arbitration costs, the amount of which shall be fixed by [her] cost bill....”
Respondent, still representing herself, submitted a cost bill to the arbitrator. She sought $112,205.39, which included $25,000 pursuant to the stipulation entered in the bankruptcy proceeding. Appellant opposed the request, and argued that respondent’s fee award should be limited to respondent’s “share of ADR Services fees and costs....” As for respondent’s request for $25,000 in attorney fees pursuant to the stipulation, appellant argued that respondent was not entitled to the money because two conditions had not been satisfied, namely, that a nonappealable judgment had not been entered in the trial court, and it was not in appellant’s favor in an amount less than $12,300. The arbitrator issued a minute order stating that appellant’s objections to the cost bill were “sustained as to all costs and fees which are not directly involved in the arbitration, ” and that respondent’s recoverable costs were limited to “ADR Services fees and costs, arbitration fees and costs, Mr. Lorenson’s witness fees, and mileage and tolls.”
Respondent, still proceeding without an attorney, filed a petition to confirm the arbitration award in the trial court, and requested (among other things) the $25,000 contemplated in the stipulation. Appellant opposed the petition, arguing (among other things) that the trial court lacked jurisdiction to enforce the stipulation, and that respondent was not entitled to recover under the stipulation in any event.
The parties interpreted the stipulation differently. At the time the parties entered into the stipulation, the Bankruptcy Code provided that a creditor needed to hold at least $12,300 in claims against a debtor in order to bring an involuntary bankruptcy proceeding. (11 U.S.C. § 303(b)(2).) According to respondent, the $12,300 figure in the stipulation was based on the minimum threshold amount to bring an involuntary bankruptcy proceeding. She argued that the intent of the stipulation was to reimburse her for the “defense fees” she incurred as the result of appellant’s meritless bankruptcy action, presumably meaning that an award of less than $12,300 to appellant would demonstrate that appellant had no basis for the bankruptcy petition and that appellant should therefore pay respondent for having to defend the action. Appellant argued, on the other hand, that the stipulation contemplated a judgment in his favor (but in an amount less than $12,300) before respondent was entitled to her attorney fees, and that respondent was not entitled to fees because judgment would be entered in her (as opposed to appellant’s) favor on his complaint.
The threshold amount is adjusted every three years to reflect the change in the consumer price index, and the current minimum amount is $14,425. (11 U.S.C. §§ 104(a)(1), 303(b)(2).)
It was clear at the hearing on the petition to confirm the arbitration award that the trial court agreed with respondent’s interpretation. In response to the argument of appellant’s counsel that the stipulation contemplated a judgment in appellant’s favor in the amount of at least one dollar before respondent could collect her attorney fees, the trial court stated, “No, it doesn’t say from one dollar. It says less than 12, 300. That’s all the way down to her winning money.” After further argument by appellant’s counsel, the trial court stated, “You’re trying to say that the judge felt that if [appellant] got $11,000 against [respondent], then she gets 25, 000, or if she completely defenses [sic] him she gets nothing? That is completely illogical, Counsel.”
The trial court granted respondent’s petition to confirm the arbitration award, granted her costs, and granted her the additional sum of $25,000 pursuant to the stipulation. It entered judgment on September 28, 2009. In this timely appeal, appellant challenges only the award of $25,000 to respondent pursuant to the stipulation.
The trial court later granted appellant’s motion to reconsider, and modified the order to award appellant costs in the amount of $16,127 on the cross-complaint, but did not otherwise modify its previous order.
Appellant appealed following the trial court’s order confirming the arbitration award (No. A125230). (Cf. Cummings v. Future Nissan (2005) 128 Cal.App.4th 321, 326-327 [appeal lies only from judgment entered on an order confirming arbitration award, not from order].) Appellant requested dismissal, and this court dismissed appeal No. A125230 on July 28, 2009. Appellant again appealed following the entry of judgment.
II. Discussion
A. Trial Court Had Jurisdiction To Award Attorney Fees.
Appellant argues that the trial court lacked jurisdiction to award respondent $25,000 pursuant to the stipulation. According to appellant, the arbitrator had jurisdiction to rule on “all issues pertaining to the complaint and cross-complaint, ” the stipulation was one of those “issues, ” the arbitrator’s denial of the fees contemplated by the stipulation constituted a decision on the merits that could not be reviewed by the trial court, and respondent’s request that the trial court award her $25,000 pursuant to the stipulation was an improper attempt to “correct” the arbitration award. We disagree.
1. Order compelling arbitration
When the trial court originally granted appellant’s petition to compel arbitration, it ordered that the parties proceed to arbitration pursuant to their arbitration agreement and that the arbitrator was to determine the arbitrability of fees-an obvious reference to the parties’ ongoing dispute over whether respondent owed appellant attorney fees in connection with her divorce proceeding, as appellant later acknowledged in a declaration filed in support of a motion to compel compliance with the order compelling arbitration. The order compelling arbitration did not refer to the stipulation. Although it may be true that “[a]ll issues involving the complaint and cross-complaint were submitted to arbitration, ” it does not follow that the “issue” of the stipulation was submitted to arbitration, as appellant claims. (Cf. Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 28 [arbitrator has authority to resolve entire merits of controversy submitted by parties].) There is nothing in the arbitrator’s decision to suggest that any evidence about the stipulation was presented at the arbitration hearing on the matter. This makes sense, because the stipulation represented a resolution of the bankruptcy proceedings, and did not constitute any continuing controversy between the parties at the time of the arbitration hearing. In other words, although the parties continued to dispute whether respondent owed appellant attorney fees for work done in the divorce proceedings and submitted that issue to binding arbitration, the issue of whether appellant should pay respondent for her attorney fees in the bankruptcy proceeding was resolved by the stipulation.
Moreover, the stipulation contemplated the entry of a final judgment before an award of attorney fees under the agreement. The trial court, and not the arbitrator, had jurisdiction to enter a “final nonappealable judgment, ” as contemplated by the stipulation.
2. Arbitrator’s award of arbitration costs
The fact that respondent, while she was proceeding without an attorney, requested in a cost bill that the arbitrator grant her $25,000 pursuant to the stipulation does not support appellant’s argument that the issue of whether respondent was ever entitled to $25,000 under the stipulation was finally decided by the arbitrator. The arbitrator’s decision directed respondent to submit a cost bill setting forth her “arbitration costs.” After respondent requested $112,205.39 (including the $25,000 in the stipulation) in her cost bill, appellant objected generally that respondent sought “some costs that do not appear related to the litigation at all.” As for the $25,000, appellant specifically argued that the conditions of the stipulation had not been satisfied. In the order taxing respondent’s cost bill, the arbitrator ordered that the bill was taxed “as to all items that are unrelated to the arbitration and are unsupported with documentation.” Although the arbitrator did not specifically state why he declined to award respondent $25,000 pursuant to the stipulation, the fact that he declined to award costs that were “unrelated to the arbitration” suggests that he concluded that the $25,000 was not a cost of arbitration. The arbitrator’s order taxing costs does not, as appellant argues, establish that the arbitrator made a final decision on the merits as to whether respondent was ever entitled to attorney fees pursuant to the stipulation.
For this reason, Moshonov v. Walsh (2000) 22 Cal.4th 771, upon which appellant relies, is distinguishable, because the arbitrator in that case was expressly empowered to rule on whether the prevailing party could be awarded attorney fees pursuant to the parties’ contract, and the arbitrator actually decided the prevailing party’s entitlement to fees. (Id. at p. 776.) And unlike in Morris v. Zuckerman (1968) 69 Cal.2d 686, upon which appellant also relies, respondent here did not submit evidence on the stipulation or argue that it was an issue to be “adjudicat[ed].” (Id. at p. 694.)
3. No petition to “correct” arbitration award
A party to an arbitration in which an award has been made may petition the court to confirm, correct, or vacate the award. (Code Civ. Proc. § 1285.) The trial court may correct an award only in limited circumstances (Code Civ. Proc. § 1286.6), and the party seeking correction of an award must file a petition to correct within 100 days of service of an arbitration award (Code Civ. Proc. § 1288). Here, respondent filed a petition to confirm the award, and asked that the trial court additionally award her $25,000 pursuant to the stipulation. She did not request that the trial court correct the arbitrator’s determination that the attorney fees described in the stipulation were not an arbitration cost, as appellant now claims. Instead, she requested that the trial court award her $25,000 pursuant to the stipulation when it entered final judgment, something that the court (and not the arbitrator) was authorized to do. Because respondent was not awarded $25,000 pursuant to the stipulation in response to a petition to correct the arbitration award, we reject appellant’s arguments that (1) respondent did not meet the statutory deadline for filing a petition to correct an arbitration award (Code Civ. Proc. § 1288), and (2) the statutory grounds for correcting an arbitration award (Code Civ. Proc. § 1286.6) were not met here.
Respondent did request that the trial court correct the arbitrator’s determination that appellant was the “prevailing party” on her cross-complaint because she decided not to pursue it. Respondent’s request to modify the determination of who was the prevailing party on her cross-complaint (which the trial court rejected) had nothing to do with the terms of the stipulation, and her request is not an issue in this appeal.
Both the trial court’s tentative ruling and its order granting respondent’s petition states that respondent’s petition “to confirm” the arbitration award was granted. We are aware that the trial court’s subsequent judgment states that the court confirmed the arbitration award “subject to the correction” that respondent be awarded her attorney fees pursuant to the stipulation. The judgment was drafted by appellant’s counsel, and appears to be worded in such a way as to make it appear that the trial court “correct[ed]” the award as that term is used in Code of Civil Procedure section 1286.6. Because the record as a whole reveals that this is not the case, and because the judgment does not cite to the statutes governing the correction of arbitration awards, we conclude that the wording of the judgment does not establish that the trial court corrected (as opposed to confirmed) the arbitrator’s award, as appellant claims.
For all the forgoing reasons, we conclude that the trial court had jurisdiction to award respondent her attorney fees pursuant to the stipulation.
B. Trial Court Correctly Interpreted Stipulation.
We next reject appellant’s argument that in awarding respondent $25,000 pursuant to the stipulation, the trial court impermissibly “rewrote the Stipulation.” “When faced with a dispute over the meaning of a contractual provision, the court must first determine whether the provision is ambiguous, i.e., whether, on its face, the language of the provision is capable of different, yet reasonable interpretations. [Citations.] If an ambiguity is found, the court must determine which of the plausible meanings the parties actually intended. (Civ. Code, § 1636; [citations].) When the parties offer no extrinsic evidence concerning the meaning of the contractual language, or when the extrinsic evidence offered is not in conflict, ascertaining the intended meaning is solely the duty of the court. [Citation.]” (Falkowski v. Imation Corp. (2005) 132 Cal.App.4th 499, 505-506.)
“In determining which of the plausible meanings was intended, we are required to deduce the parties’ intent from the language of the contract alone, if possible. (Civ. Code, § 1639; [citations].) Accordingly, at least in the first instance, contractual interpretation turns on ‘what was intended by what was said-not what a party intended to say.’ [Citation.] In evaluating the contractual language, however, we also ‘ “tak[e] into account all the facts, circumstances and conditions surrounding the execution of the contract.” ’ [Citations.]” (Falkowski v. Imation Corp., supra, 132 Cal.App.4th at p. 506.) “[T]he ‘interpretation of a contract is subject to de novo review where the interpretation does not turn on the credibility of extrinsic evidence.’ [Citations.]” (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co. (2003) 107 Cal.App.4th 516, 520.)
The stipulation provides that if a judgment is entered in this action “in favor of [appellant] in an amount less than 12, 300, [respondent] shall be entitled to a judgment against [appellant] for $25,000 as for [respondent’s] attorneys’ fees....” The arbitrator determined that respondent owed appellant no additional attorney fees as appellant’s complaint alleged, which resulted in a judgment in respondent’s favor. Appellant claims, as he did below, that a judgment in appellant’s favor was “a condition precedent” to an award of attorney fees to respondent. In other words, appellant would have us read the term a judgment “in favor of [appellant] in an amount less than 12, 300” as excluding a situation where, as here, appellant recovered nothing. We agree with the trial court that such an interpretation is “illogical, ” because it would mean that respondent was entitled to her attorney fees if the arbitrator found that she owed appellant $12,299, but that she was not entitled to fees if the arbitrator determined that she owed appellant nothing. (People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 107 Cal.App.4th at p. 526 [courts must give “ ‘ “reasonable and commonsense interpretation” ’ of a contract consistent with the parties’ apparent intent”].)
The commonsense interpretation of the stipulation is that it called for appellant to pay respondent’s attorney fees to defend the bankruptcy action if it was later determined that respondent did not owe appellant more than $12,300, which is what the arbitrator found. Appellant does not really argue that his own interpretation of the stipulation is a plausible one. In addressing the trial court’s comment that appellant’s interpretation of the contract was “illogical, ” appellant argues that the stipulation “was negotiated and written by the parties and their counsel and not the bankruptcy judge, ” which does not address the underlying illogic to appellant’s interpretation.
Appellant also contends that the stipulation “was worded as it was because at the time it was entered into, Respondent was conceding that she owed Appellant some amount of unpaid attorney’s fees.” First, we note that the arbitrator addressed the fact that respondent had previously acknowledged she owed fees to appellant, but concluded that this “appears always to have been in the context of being assured of recouping by obtaining fee awards against her husband, ” and that respondent’s relationship with appellant later “broke down at the point where she began questioning the authenticity of the billings.” Second, even if respondent at one point acknowledged that she owed appellant money, this does not explain why the stipulation would be worded in such a way that respondent would not be entitled to fees if it was later determined that she, in fact, owed appellant nothing. Taking into account all the facts, circumstances, and conditions surrounding the execution of the stipulation (Falkowski v. Imation Corp., supra, 132 Cal.App.4th at p. 506), we agree with respondent that the trial court correctly interpreted the agreement.
C. Certificate of Interested Entities or Persons.
Finally, although it is true that respondent’s brief did not comply with California Rules of Court, rule 8.208(d)(1), because respondent did not include a certificate of interested entities or persons with the brief, we decline to strike the brief for failure to comply with the rule as appellant suggests. (Cal. Rules of Court, rule 8.208(d)(3)(B).) Respondent filed her certificate on June 1, 2010, curing the defect.
III.
Disposition
The judgment is affirmed. Respondent shall recover her costs on appeal.
We concur: Ruvolo, P.J., Reardon, J.