Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Los Angeles County Super. Ct. No. BS099595 Elizabeth A. Grimes, Judge.
Steckbauer Weinhart Jaffee, William W. Steckbauer and Won M. Park for Plaintiff and Appellant.
Mitchell, Silberberg & Knupp and Richard S. Hessenius for Defendant and Respondent.
ALDRICH, J.
INTRODUCTION
Appellant Benham Soroudi was embroiled in a dispute with his brothers, respondents Mehdi Soroudi, Behrouz Soroudi, and Mehran Soroudi. The parties voluntarily submitted the dispute to arbitration. The parties agreed that the arbitration panel could decide the underlying dispute and additionally impose attorney fees if, in the future, any party did not honor the award or sought to vacate it. Appellant lost the arbitration. In the award, the arbitrators reserved jurisdiction to award attorney fees if anyone sought to vacate the award. Thereafter, appellant failed in his attempt to vacate the award and the trial court awarded respondents costs consisting of filing fees, motion fees, and service of process fees. The trial court confirmed the arbitration award, which was entered as a judgment. Then, the case was returned to the arbitrators, who ordered appellant to pay attorney fees. The trial court denied appellant’s second motion to vacate and confirmed the arbitrator’s attorney fee award as a judgment.
Appellant Benham Soroudi, also known as Behnam Soroudi, appeared in the trial court, and appears on appeal, for himself as an individual and as the trustee of appellants the Capital Trust, the Yitzhak Family Trust, and the Emerald Trust. We address these parties collectively as appellant.
The dispute on appeal deals only with the second judgment confirming the attorney fee award.
FACTUAL AND PROCEDURAL BACKGROUND
1. The dispute and the arbitration award.
Appellant and respondents (three of appellant’s brothers) were embroiled in a number of disputes involving a family run business and a number of other businesses. The business enterprises included a number of real estate ventures. Among other allegations, appellant alleged respondents had converted jointly owned properties and stolen millions of dollars.
In a written agreement dated April 24, 2002, appellant and respondents agreed to submit the disputes to arbitration through the Beis Din of the Rabbinical Council of California. The agreement to submit to binding arbitration stated in part: “The parties recognize and acknowledge that by agreeing to binding arbitration, they waive and surrender their right to present their dispute to a court. The only recourse to court will be in the event that one of the parties hereto does not honor this agreement or the decisions made by the arbitrators under this agreement. In the event that a party does not honor the decisions of the arbitrators or seeks to vacate the award, we authorize the arbitrators to award additional legal fees and costs.” (Italics added.) Further, “the arbitrators are authorized to make an award on attorneys fees and legal costs; . . . the parties agree that they will faithfully abide by and implement the award of the arbitrators and that judgment upon the award may be entered in the court pursuant to applicable California law, and that the award of the arbitrators may be enforced pursuant to the laws of the State of California.” (Italics added.)
Pursuant to the written agreement, the matter was heard by a panel of three rabbis, according to Din Torah (Jewish law). After hearings spanning two years, the panel (a Beis Din) rendered an award on July 31, 2005, finding for respondents. The award covered a broad range of issues. For example, the panel refused appellant’s request to dissolve the parties’ numerous partnerships, limited liability companies, corporations, and trusts. Appellant was ordered to pay respondents damages of approximately $1.9 million and appellant was enjoined from divulging respondents’ private or confidential information concerning business, tax or personal affairs. Other examples of the relief included ordering the parties to resign as trustees of the trusts of the other parties and to promptly execute documents required to carry out the award.
In paragraph IV (11) of the July 31, 2005, award, in a section entitled “Attorney Fees For Breach of Judgment,” the panel confirmed its authority to issue a further award for attorney fees and costs, if appropriate. It stated, “The Beis Din declares that in the event that one of the parties must have recourse to legal actions in order to enforce any of the rulings of this Judgment or due to any breach of this Beis Din’s rulings, that party shall be entitled to recover reasonable attorney’s fees and costs incurred therein, upon application to this Beis Din.” In paragraph IV (13), the award stated in part, “The Beis Din retains jurisdiction regarding any disputes that may arise regarding interpretation or implementation of this ruling.”
2. Appellant’s first petition to vacate.
On October 11, 2005, appellant filed in the superior court a petition to vacate the July 31, 2005, award. (Case No. BS099595.)
Respondents opposed the petition. Respondents also requested the trial court confirm the arbitration award.
The trial court denied appellant’s petition to vacate and granted respondents’ request to confirm the arbitration award. The trial court further ruled, “Respondent[s are] ordered to submit a proposed form of judgment. Respondent[s] may recover costs pursuant to C.C.P. section 1293.2.”
On April 6, 2006, respondents filed their cost memorandum, utilizing a pre-printed form provided by the Judicial Council, form MC-010. The form listed a number of items for which respondents could submit a request, including attorney fees. Respondents only made a request for $2,880 for filing and motion fees, as well as $28 service of process expenditures, for a total of $2,908. Respondents did not seek an award for attorney fees.
This line on the pre-printed form read: “Attorney fees (enter here if contractual or statutory fees are fixed without necessity of a court determination; otherwise a noticed motion is required).”
On April 19, 2006, the trial court executed and filed a judgment denying appellant’s petition to vacate the arbitration award and confirming the arbitrator’s award. The judgment also stated, “Respondents are entitled to their costs of suit incurred herein pursuant to C.C.P. Section 1293.2, in the amount of $2,908.00.”
On April 25, 2006, notice of entry of judgment was served.
3. The arbitrators’ attorney fee award.
On August 8, 2006, respondents submitted a request to the arbitration panel for an award of $82,507.23 for attorney fees incurred in opposing appellant’s October 2005 motion to vacate and incurred in confirming the award as a judgment.
Appellant opposed the request for attorney fees, arguing that once the arbitration had ended in a final award, the arbitrators no longer had jurisdiction to supplement or correct the award.
On September 5, 2006, the panel rejected appellant’s arguments and awarded respondents $82,507.23 as reimbursement for attorney fees. In doing so, the panel quoted paragraphs IV (11) and IV (13) of the July 31, 2005, award to the effect that the arbitration agreement had authorized the arbitration panel to retain jurisdiction regarding disputes over the implementation and interpretation of the arbitrators’ ruling and to retain jurisdiction in the event any party resorted to legal action to enforce the panel’s decision or to award attorney fees due to any breach of the Beis Din’s rulings.
4. Appellant’s second petition to vacate.
On November 16, 2006, appellant filed in the superior court a petition to vacate the September 5, 2006, arbitration award. Appellant argued that the arbitrators had exceeded their powers in issuing that award because: (1) the trial court had the sole jurisdiction to award costs, including attorney fees awarded as costs pursuant to Code of Civil Procedure section 1293.2; (2) once the arbitration panel issued its July 31, 2005, award it no longer had jurisdiction to modify or amend it; (3) the agreement signed by the parties did not give the arbitration panel the power to render additional awards after an initial one was rendered; and (4) if respondents could obtain an award of attorney fees from the arbitration panel, their request was untimely (Cal. Rules of Court, rule 870.2(b)(1)).
At a hearing on January 11, 2007, the trial court rejected appellant’s argument and confirmed the second award. In part, the trial court held that the parties had granted the arbitrators “the authority to award additional [attorney] fees and costs . . . .”
On February 5, 2007, the trial court entered a judgment denying appellant’s second petition to vacate and confirming the September 5, 2006, award for attorney fees. Respondents served notice of entry of judgment. Appellant timely appealed from the February 5, 2007, judgment.
DISCUSSION
Appellant does not contest the trial court’s April 19, 2006, judgment confirming the July 31, 2005, arbitration award and awarding respondents $2,908 in costs for filing fees, motion fees, and service of process fees. Rather, appellant addresses the February 5, 2007, judgment. He contends the arbitrators exceeded their authority in issuing the second award of September 5, 2006, awarding respondents $82,507.23 in attorney fees.
1. The arbitrators had the jurisdiction to issue the second arbitration award.
Parties are free to define by contract the scope of an arbitrator’s powers. “The powers of an arbitrator derive from, and are limited by, the agreement to arbitrate. [Citation.]” (Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 375.)
Code of Civil Procedure section 1284.2 “sets forth the legislative policy of this state that arbitration costs are to be borne by the party incurring them, unless the arbitration agreement provides otherwise. [Citations.]” (Austin v. Allstate Ins. Co. (1993) 16 Cal.App.4th 1812, 1815.) Section 1284.2 provides that, unless the parties agree otherwise, parties are to pay their own pro rata share of the arbitration proceedings such as costs of the neutral arbitrator; however, each party shall bear its own counsel fees or witness fees. Section 1284.2 is a default provision and comes into play only if the parties do not otherwise provide for costs and attorney fees in the arbitration contract. (Armendariz v. Foundation Health Psychare Services, Inc. (2000) 24 Cal.4th 83, 112; Thompson v. Jespersen (1990) 222 Cal.App.3d 964, 967-968; Woodard v. Southern Cal. Permanente Medical Group (1985) 171 Cal.App.3d 656, 664 [permits parties to arbitration to agree to a treatment of costs contrary to avoid the effect of section 1284.2]; Lifescan, Inc. v. Premier Diabetic Servs. (9th Cir. 2004) 363 F.3d 1010, 1013 [by its terms, section 1284.2 pro rata apportionment comes into play only if arbitration agreement is silent about apportionment of fees].) Thus, pursuant to Code of Civil Procedure section 1284.2, parties may make any agreement with regard to attorney fees incurred in judicial proceedings related to an arbitration.
Code of Civil Procedure section 1284.2 reads: “Unless the arbitration agreement otherwise provides or the parties to the arbitration otherwise agree, each party to the arbitration shall pay his pro rata share of the expenses and fees of the neutral arbitrator, together with other expenses of the arbitration incurred or approved by the neutral arbitrator, not including counsel fees or witness fees or other expenses incurred by a party for his own benefit.” (Italics added.)
Code of Civil Procedure section 1283.4 requires arbitrators to address all issues necessary to resolve the controversy. It states in part, “The award . . . shall include a determination of all the questions submitted to the arbitrators the decision of which is necessary in order to determine the controversy.”
The ability of a trial court to vacate an arbitration award is limited to the six reasons listed in Code of Civil Procedure section 1286.2. Only one of these reasons is relevant to the case before us. It provides that the court shall vacate the award if the court determines [t]he arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.” (Code Civ. Proc., § 1286.2, subd. (a)(4); see fn. 6.)
Appellant asserts the arbitrators exceeded their powers when they issued the second award. “In determining whether the arbitrator exceeded his powers in making the second arbitration award, we review the superior court’s decision de novo, but we ‘pay substantial deference to an arbitrator’s determination of his own authority.’ [Citation.] Any doubts about the arbitrator’s power to decide these issues must be resolved in his favor. [Citation.] As the Supreme Court has explained, ‘arbitrators do not “exceed[ ] their powers” within the meaning of section 1286.2, subdivision (d) and section 1286.6, subdivision (b) 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.’ (Moshonov v. Walsh (2000) 22 Cal.4th 771, 775.)” (Roehl v. Ritchie (2007) 147 Cal.App.4th 338, 347-348 (Roehl); see fn. 5.)
While arbitrators may not amend or modify awards they issue after being confirmed by the trial court (Roehl, supra, 147 Cal.App.4th at p. 340), arbitrators are empowered to issue successive awards when necessary to effectuate the terms of the arbitration contract and the contract grants the arbitrators such power. Hightower v. Superior Court (2001) 86 Cal.App.4th 1415 (Hightower) and Roehl, supra, 147 Cal.App.4th 338 provide examples of how provisions in arbitration contracts may result in a successive award process.
In Hightower, supra, 86 Cal.App.4th 1415 the founders of a software company had a shareholders agreement that included buy-sell arrangements and an arbitration provision. (Id. at pp. 1420, 1423.) After arbitration, the arbitrator concluded that one party (O’Dowd) was entitled to purchase the shares of the other party (Hightower). In order to give O’Dowd the benefits he was entitled to under the agreement, the arbitrator issued a partial award providing O’Dowd with additional time to arrange financing for the buyout. The arbitrator’s award included a reservation of jurisdiction to address issues that might arise thereafter. (Id. at pp. 1425-1428.) In writ of mandate proceedings, we held that the award should be confirmed by the trial court and that the arbitrator was procedurally correct in making the award. (Id. at pp. 1429, fn. 20, 1440-1441.)
We rejected Hightower’s argument that Code of Civil Procedure section 1283.4 mandated a single, final award resolving all issues disputed by the parties. (Hightower, supra, 86 Cal.App.4that p. 1433.) Rather, in order to effectuate the arbitrator’s broad power to fashion appropriate remedies (id. at pp. 1434-1437), the “principle of arbitral finality . . . does not preclude the arbitrator from making a final disposition of a submitted matter in more than one award. Nor does section 1283.4 . . . compel such a result.” (Id. at p. 1433.) Quoting the Supreme Court, we stated, “ ‘an arbitrator’s choice of relief does not exceed his or her powers as long as it “bears a rational relationship to the underlying contract as interpreted, expressly or impliedly, by the arbitrator and to the breach of contract found, expressly or impliedly by the arbitrator.” [Citation.] (italics added.)’ (Moshonov. v. Walsh[, supra, ]22 Cal.4th [at p.] 777.)” (Hightower v. Superior Court, supra, at p. 1437.)
In Roehl, supra, 147 Cal.App.4th 338, the parties disagreed as to the distribution of trust property. Pursuant to the trust’s arbitration provision, the dispute was heard by an arbitrator. The arbitrator issued an award effectively deciding the most important issue, “whether a corporate note was separate or community property. While the arbitrator referred to the distribution values in a trial exhibit (exhibit 20), he did not make the exhibit a part of the award. Instead, he expressly left open his options to work with the trustee to make a different distribution if ‘in light of new developments’ a ‘somewhat different distribution of assets would benefit the estate.’ ” (Id. at pp. 340-341.) The award was confirmed by the superior court and the resulting judgment was affirmed on appeal. (Id. at pp. 344-345.) Thereafter, the arbitrator was asked by one party to address additional issues, including the valuation of a parcel of property that had been valued in exhibit 20. (Id. at p. 345.) The arbitrator issued a second award allocating various assets and assigning a specific value to the parcel of property according to a new appraisal. (Id. at p. 346.) The trial court confirmed the second award, which was entered as a judgment. (Id. at p. 347.)
Roehl addressed the second judgment. (Roehl, supra, 147 Cal.App.4th at p. 347.) Roehl rejected the arguments that the arbitrator had no jurisdiction to issue the second award after confirming the first and that the arbitrator impermissibly modified a final decision. Roehl deferred to the arbitrator’s powers to determine the scope of his contractual authority, and resolve any doubts in favor of upholding the second arbitration award. (Id. at p. 350.) Roehl concluded that the arbitrator did not revisit previously determined issues. (Id. at pp. 341, 349.) Rather, in issuing the first award, the arbitrator had reserved jurisdiction to address issues as they arose, and specifically left open the door for additional arbitration proceedings. (Id. at pp. 349-350.) The fact that the first award was judicially confirmed did not alter that conclusion. (Id. at p. 350.)
Roehl also rejected the argument that the arbitrators impermissibly reserved jurisdiction to make an incremental award. This argument was based on the general rule that arbitrators may not correct or modify awards once they are confirmed as judgments. (Roehl, supra, 147 Cal.App.4th at p. 351.) Quoting from Hightower, supra, 86 Cal.App.4th at page 1434 , Roehl stated, “[arbitrators have the] ability to use ‘a multiple incremental or successive award process as a means, in an appropriate case, of finally deciding all submitted issues.’ ” (Roehl, supra, at p. 351.) “Arbitration awards may contemplate future proceedings. [Citations.]” (Id. at p. 352.)
Here, the arbitration agreement envisioned situations in which the parties were obligated to return to the arbitrators to address additional issues. The parties agreed that “[i]n the event that a party does not honor the decisions of the arbitrators or seeks to vacate the award, . . . the arbitrators [are authorized] to award additional legal fees and costs.” Thus, according to the explicit terms of the arbitration agreement, if a party sought to vacate the award, the arbitrators had the jurisdiction to make an award based upon the other party’s expenditure of legal fees in opposing a motion to vacate. This provision was consistent with the powers granted to the parties by Code of Civil Procedure section 1284.2 that enables parties to contractually make arrangements for the payment of attorney fees.
Appellant suggests that when respondents sought and obtained $2,908 from the trial court for filing fees, motion fees, and service of process fees, respondents conceded that the trial court, and not the arbitrators, had jurisdiction to award all costs, including attorney fees. However, we are not called upon to decide if the trial court had jurisdiction to issue the first award.
Further, when the arbitrators rendered the initial decision on July 31, 2005, they acknowledged this specific grant of authority, and reserved the authority to render a subsequent award to reimburse any party who opposed a motion to vacate. The first award stated: “in the event that one of the parties may have recourse to legal actions in order to enforce any of the rulings of this Judgment or due to any breach of this Beis Din’s ruling, that party shall be entitled to recover reasonable attorney’s fees and costs incurred therein, upon application to this Beis Din.” (Italics added.) When appellant challenged the arbitrators’ July 31, 2005, decision by filing the first petition to vacate the award and respondents incurred attorney fees in opposing that petition, respondents were entitled to seek reimbursement from the Beis Din for those expenditures. As the arbitrators concluded in determining the scope of their authority under the arbitration contract, the arbitrators had the jurisdiction to award respondents attorney fees for their expenditures in opposing the motion to vacate.
We cannot conclude the arbitrators’ construction of the arbitration agreement was erroneous. The arbitration agreement explicitly authorized the arbitrators to issue an award of attorney fees expended to combat a motion to vacate. Like Hightower and Roehl, the arbitrators had the jurisdiction to utilize a reasonably necessary incremental process to issue successive awards. (Cf. Ajida Technologies, Inc. v. Roos Instruments, Inc. (2001) 87 Cal.App.4th 534, 547-548 [given nature of the contract and character of dispute, arbitrators were warranted in fashioning a remedy that permitted future arbitral jurisdiction regarding attorney fees and costs in event there were future disputes over the award].)
2. Appellant’s contentions are not persuasive.
Appellant contends the arbitrators exceeded their powers and were foreclosed from issuing the second award of September 5, 2006, because arbitrators cannot amend their awards. (Code Civ. Proc., §§ 1286.2, subd. (a)(4), 1286.6.) However, like Hightower, supra, 86 Cal.App.4th 1415, the issue addressed in the second arbitration could only have arisen after the first award was issued. (Id. at pp. 1433-1434, fn. 29.) And, like Roehl, supra, 147 Cal.App.4th 338,the arbitrators here reserved jurisdiction to address issues that arose after the second award. (Id. at p. 343; Patchett v. Bergamot Station, Ltd. (2006) 143 Cal.App.4th 1390, 1395, fn. 2 [second award did not alter or amend first award]; compare with, Elliott & Ten Eyck Partnership v. City of Long Beach (1997) 57 Cal.App.4th 495 [impermissible for arbitrator, as compared to judicial officers, to issue a supplemental award modifying the initial award].) The second award did not impermissibly amend or modify the first award because the second award addressed the discrete issue of respondents’ entitlement to attorney fees expended to oppose appellant’s first motion to vacate. Obviously, this issue could not have been addressed in the first arbitration proceeding.
Code of Civil Procedure section 1286.2, subdivision (a)(4) states, “Subject to Section 1286.4, the court shall vacate the award if the court determines. . . [t]he arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.”
Citing Code of Civil Procedure section 1293.2, appellant contends only the trial court, and not arbitrators, has jurisdiction to award post-arbitration attorney fees as these are given to the prevailing party as “costs.” (Code Civ. Proc., § 1293.2 [“The court shall award costs upon any judicial proceeding under this title as provided in Chapter 6 (commencing with Section 1021) of Title 14 of Part 2 of this code.”]; Code Civ. Proc., § 1033.5, subd, (a)(10)(A) [items recoverable as costs under Code Civ. Proc., § 1032 include attorney fees when authorized by contract]; Code Civ. Proc., § 1032, subd. (a)(4) [defining prevailing party]; Carole Ring & Associates v. Nicastro (2001) 87 Cal.App.4th 253, 261 [“costs” to prevailing party under Code of Civil Procedure section 1293.2 includes attorney fees; determining who is prevailing party for determination of post-arbitration judicial proceedings is a judicial function, distinct from arbitrator’s decision whether to award fees in the arbitration proceeding itself]; Marcus & Millichap Real Estate Investment Brokerage Co. v. Woodman Investment Group (2005) 129 Cal.App.4th 508 [same].) Appellant notes that the first judgment acknowledged the applicability of Code of Civil Procedure section 1293.2, as it stated, “Respondents are entitled to their costs of suit incurred herein pursuant to C.C.P. Section 1293.2, in the amount of $2,908.00.” In a related argument, appellant contends that because the Legislature enacted Code of Civil Procedure section 1293.2 to distinguish between costs incurred in arbitration from costs incurred in judicial proceedings and left the trial court to determine the amount of attorney fees to be awarded in the latter, it is illegal for the parties to contractually designate the arbitrators to award attorney fees. Thus, appellant contends respondents were obligated to ask the trial court for the attorney fee award, as costs, and the failure to do so precluded the arbitrators from awarding attorney fees.
For this argument, appellant cites Austin v. Allstate Ins. Co., supra, 16 Cal.App.4th at pages 1815-1816, Woodard v. Southern Cal. Permanente Medical Group, supra, 171 Cal.App.3d at page 665, Dickinson v. Kaiser Foundation Hospitals (1980) 112 Cal.App.3d 952, and Tipton v. Systron Donner Corp. (1979) 99 Cal.App.3d 501 at page 507. These cases discuss the Legislature’s intent to distinguish “between costs incurred in an arbitration proceeding and costs incurred in superior court to enforce an arbitration award, allowing for costs to the prevailing party only in the latter. [Citation.]” (Austin v. Allstate Ins. Co., supra, at pp. 1815-1816.) Appellant’s analysis ignores the fact that costs pursuant to Code of Civil Procedure section 1293.2 are only awarded to prevailing parties. The contract before us obligated the parties to obtain from the arbitrators an award of attorney fees in the event there was a motion to vacate. It was not specific to prevailing parties. It is clear that the arbitrators, in interpreting the arbitration contract, concluded they had jurisdiction to address the attorney fee issue because the arbitration contract did not discuss prevailing parties. Thus, the clause upon which the arbitrators relied to issue the second award was not illegal.
Appellant argues the trial court was foreclosed from entering a judgment on the second award because a judgment had already been entered. Appellant points to the general rule that “[w]hen a court has jurisdiction over the parties and subject matter of a suit, its jurisdiction continues until a final judgment is entered. (Riley v. Superior Court (1957) 49 Cal.2d 305, 309.)” (Shapell Industries, Inc. v. Superior Court (2005) 132 Cal.App.4th 1101, 1108-1109.) Appellant also cites the one final judgment rule (Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 118) that absent statutory authority, “there can be but one final judgment between two parties or sets of parties in an action or proceeding except as otherwise provided by statute. [Citation.]” (Bodine v. Superior Court (1962) 209 Cal.App.2d 354, 361, accord, Rogers v. Bill & Vince’s, Inc. (1963) 219 Cal.App.2d 322, 325.)
However, “[j]urisdiction over a cause or parties after a final judgment is recognized in California by statutory and decisional law in exceptional and limited situations . . . .” (Colvig v. RKO General, Inc. (1965) 232 Cal.App.2d 56, 72 (Colvig).) These exceptions include Code of Civil Procedure section 1292.6 in which trial courts retain jurisdiction to hear subsequent petitions “involving the same agreement to arbitrate and the same controversy . . . .” Respondents’ request to have the arbitrators’ award of attorney fees confirmed involved the same agreement to arbitrate, issues arising from the same controversy, and the same arbitration as had been submitted to the trial court upon respondents’ first request to confirm the arbitration award, but involved an issue that occurred in the future. (See Valsan Partners Limited Partnership v. Calcor Space Facility, Inc. (1994) 25 Cal.App.4th 809, 820 [discussing successive arbitrations; limited jurisdiction discussion in Colvig to apply to the same arbitration].) Thus, the statutory reservation of jurisdiction in Code of Civil Procedure section 1292.6, gave the trial court the authority to hear the request to confirm the arbitrators’ award of attorney fees.
Code of Civil Procedure section 1292.6 states: “After a petition has been filed under this title, the court in which such petition was filed retains jurisdiction to determine any subsequent petition involving the same agreement to arbitrate and the same controversy, and any such subsequent petition shall be filed in the same proceeding.”
Lastly, appellant notes that there was more than three months between the time notice of entry of the first judgment was given on April 25, 2006, and the time respondents submitted a request to the arbitration panel for attorney fees, on August 8, 2006. Appellant contends the request for attorney fees was untimely pursuant to California Rules of Court, rule 3.1702, formerly rule 870.2(b)(1). This rule discusses the time in which a party must seek in the trial court an award of attorney fees. Appellant has not offered any authority to support this proposition that this statute applies when a party is seeking attorney fees from an arbitration panel, and then seeks to confirm that award in the trial court.
California Rules of Court, rule 3.1702 reads in part:
DISPOSITION
The judgment is affirmed. Respondents are awarded costs on appeal.
We concur: KLEIN, P. J., KITCHING, J.
Respondents are: Mehdi Soroudi, individually and as trustee of the Century Trust, DYS Trust, DSS Trust, Regency Trust, and the Mehdi Soroudi Family Trust; Behrouz Soroudi, individually and as trustee of the Miketz Trust and the Paragon Trust; and Mehran Soroudi, also known as Michael Soroudi. For simplicity, we address these parties jointly as respondents.
A fifth Soroudi brother is not involved in this litigation.
Code of Civil Procedure section 1286.6, subdivision (b) states, “Subject to Section 1286.8, the court, unless it vacates the award pursuant to Section 1286.2, shall correct the award and confirm it as corrected 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 . . . .”
“(a) Application
“Except as otherwise provided by statute, this rule applies in civil cases to claims for statutory attorney’s fees and claims for attorney’s fees provided for in a contract. Subdivision[] (b) . . . appl[ies] when the court determines entitlement to the fees, the amount of the fees, or both, whether the court makes that determination because the statute or contract refers to ‘reasonable’ fees, because it requires a determination of the prevailing party, or for other reasons.
“(b) Attorney’s fees before trial court judgment
“(1) Time for motion
“A notice of motion to claim attorney’s fees for services up to and including the rendition of judgment in the trial court – including attorney’s fees on an appeal before the rendition of judgment in the trial court – must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108.
“. . .”