Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Merced County No. 148309. Ronald W. Hansen, Judge.
Miller, Morton, Caillat & Nevis, Peter V. Dessau and Roger F. Liu for Plaintiff and Appellant.
Lynch, Gilardi & Grummer, James E. Sell and Randel J. Campbell for Defendants and Respondents.
OPINION
Wiseman, Acting P. J.
This is an appeal from a judgment dismissing a petition requesting correction of an arbitration award. The question presented is whether the arbitrator “exceeded [his] powers” within the meaning of Code of Civil Procedure section 1286.6, subdivision (b), when he found there was no prevailing party and that, therefore, no party was entitled to attorneys’ fees under Civil Code section 3250, and that no party was entitled to recover its costs of suit under Code of Civil Procedure section 1032. The answer is “no” since the arbitrator had the power to make this finding. Consequently, no grounds exist under Code of Civil Procedure section 1286.6 for correcting the award by including attorneys’ fees and costs of suit. We affirm the judgment.
We reject the contention of defendants Swinerton Builders and United States Fidelity & Guaranty Company (collectively Swinerton) that the appeal must be dismissed because plaintiff Thompson Pacific Construction, Inc. (Thompson), accepted a tender of payment of the award and filed an acknowledgment of satisfaction of the judgment. Since only the attorneys’ fees and costs, not the underlying award of damages, are at issue in the appeal, Thompson did not waive its right to appeal by accepting satisfaction of the judgment. We also reject Swinerton’s request that we impose sanctions on Thompson for filing a frivolous appeal.
FACTUAL AND PROCEDURAL HISTORIES
Thompson filed an action for breach of contract against Swinerton in Merced County Superior Court on February 25, 2005. The complaint alleged that Swinerton was the general contractor on a building project at the University of California at Merced, that Thompson was a subcontractor, and that Swinerton failed to make certain payments and breached other terms of the parties’ contract. Swinerton’s bond surety for the project, United States Fidelity & Guaranty Company, was also named as a defendant. Later, the court granted a motion to compel arbitration pursuant to the parties’ contract.
The arbitrator awarded Thompson damages of $1,494,632.13 against both defendants. The arbitrator also found for Swinerton on a counterclaim, awarding it $301,086.53 as an offset against the damages awarded to Thompson.
The arbitrator’s written decision included a discussion of whether Thompson should receive an award of attorneys’ fees pursuant to Civil Code section 3250. Civil Code section 3250 is part of a series of statutes, beginning with Civil Code section 3247, requiring general contractors on public works projects to obtain payment bonds. Section 3250 provides that “[i]n any action [on a payment bond], the court shall award to the prevailing party a reasonable attorney’s fee, to be taxed as costs.”
The arbitrator found that there was no prevailing party because Thompson and Swinerton were both partially successful. Thompson received a substantial net award, but Swinerton successfully defended against claims of even greater value:
“3. … Since [section 3250] relates to disputes between the Surety and a claimant on the payment bond [i.e., Thompson], the issue is whether either of them ‘prevailed’ in this action.
“4. The Arbitrator awarded [Thompson] its contract balance and also found in [Thompson’s] favor on a number of [claims]. On the other hand, the Arbitrator found in favor of the Surety on the majority of the delay claims, on several claims asserted by [Thompson] on behalf of BAR [another subcontractor], and on the claim for compensation for remedial work performed in 2006. Although [Thompson] received a net award in its favor, the value of its claims that were successfully defended by the Surety far exceed those amounts.
“5. The Arbitrator has, therefore, concluded that neither [Thompson] nor the Surety ‘prevailed’ in this arbitration. The Surety and [Thompson] shall bear their own attorneys’ fees.”
For the same reason, the arbitrator found that there was no prevailing party for purposes of awarding costs of suit. He ruled that the parties would bear their own costs.
Thompson filed a petition to correct the award. Relying on Code of Civil Procedure section 1286.6, subdivision (b), it asked the court to award attorneys’ fees and costs because it was the prevailing party and the arbitrator exceeded his powers by finding otherwise. Swinerton filed a response requesting that the petition be dismissed.
At the beginning of the hearing on the petition, the court stated its tentative decision to deny the requested relief. It gave two reasons. First, even assuming the arbitrator’s decision to deny attorneys’ fees and costs was erroneous, the error would not warrant a finding that the arbitrator exceeded his authority by making the decision in the first place. Second, Thompson waived the issue of the arbitrator’s authority to make the decision on attorneys’ fees and costs by failing to object to the submission of that issue to the arbitrator during the arbitration. The court made this decision final after hearing argument. It dismissed Thompson’s petition and confirmed the arbitration award.
DISCUSSION
I. Attorneys’ fees and costs
Thompson argues that the trial court erred in dismissing the petition and confirming the award as issued. We review de novo a ruling confirming an arbitration award, except that we review for substantial evidence issues in the ruling that rest on the trial court’s resolution of factual disputes. (Lindenstadt v. Staff Builders, Inc. (1997) 55 Cal.App.4th 882, 892, fn. 7.) The only disputed issue here—whether the arbitrator’s decision on attorneys’ fees and costs exceeded his powers—is an issue of law, so we will review the judgment de novo.
A party citing Code of Civil Procedure section 1286.6, subdivision (b), and arguing that an arbitrator’s decision on an issue “exceeded [the arbitrator’s] powers” can mean either of two things. First, the party can mean the issue was not arbitrable and should never have been submitted to the arbitrator for decision. Second, the party can mean the arbitrator lacked power to decide the issue as he decided it—i.e., unfavorably to the party—because the law required him to decide it another way.
Thompson willingly and without objection submitted its claim for attorneys’ fees to the arbitrator. Its position on appeal is that the arbitrator should have awarded attorneys’ fees to it, not that the decision whether to award them should have been made in a different forum. Further, if Thompson did mean its claim should never have been submitted to the arbitrator, we would agree with the trial court’s view that Thompson waived the claim by failing to make it before the arbitrator. (See Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 29-30 [claim that dispute not arbitrable because entire contract containing arbitration clause is illegal is waived unless party objects before submitting to arbitration; claim that arbitrator erred in enforcing specific illegal provision of contract waived unless party objects during arbitration].)
Thompson must, therefore, be making the claim in the second sense. Doing so is logically equivalent to arguing that an arbitration award should be altered by the court because the award is based on the arbitrator’s error of law. Thompson implicitly acknowledges this by devoting much of the argument in its brief to a discussion of why Civil Code section 3250 and Code of Civil Procedure section 1032 required the arbitrator to find that Thompson was the prevailing party and to award fees and costs to Thompson.
In general, the argument that an arbitration award should be altered because it reflects an error of law is foreclosed by precedent. Our Supreme Court has held that “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.” (Moncharsh v. Heily & Blase, supra, 3 Cal.4th at p. 6.) In that case, an attorney and his former law firm went to arbitration over fees from clients the attorney took with him when he left the firm. (Id. at pp. 6-7.) The arbitrator found for the firm. Among other things, it ruled that the attorney’s employment agreement with the firm, which required the attorney to split with the firm any fees he received from clients he took with him upon separation, did not violate the State Bar Rules of Professional Conduct. (Moncharsh v. Heily & Blase, supra, at p. 7.) The superior court denied the attorney’s petition to vacate and modify the award, holding that it had no power to set the award aside even if it was erroneous. (Id. at p. 8.) The Court of Appeal affirmed, stating that review of arbitrators’ awards for error is generally prohibited, but that there was an exception (not there applicable) for errors that appear on the face of an award and result in substantial injustice. (Ibid.) The Supreme Court also affirmed, but went farther than the Court of Appeal: It held that there was no exception for errors appearing on the face of the award and resulting in substantial injustice. (Id. at pp. 27-28.)
In two companion cases, Moshonov v. Walsh (2000) 22 Cal.4th 771 (Moshonov) and Moore v. First Bank of San Luis Obispo (2000) 22 Cal.4th 782 (Moore), the Supreme Court applied this principle to two situations involving petitions under Code of Civil Procedure section 1286.6, subdivision (b), to correct an award to add attorneys’ fees the arbitrator had denied. Moshonov was a dispute between the buyer and sellers of a house; the purchase contract included an arbitration clause with a provision entitling the prevailing party to attorneys’ fees in a dispute to enforce the contract. (Moshonov, supra, 22 Cal.4th at pp. 773-774.) The dispute was arbitrated and the arbitrator ruled for the seller. The arbitrator found that the sellers were the prevailing parties but awarded them only costs, ruling that the fee provision did not encompass the parties’ dispute. The sellers filed, and the superior court denied, a petition to correct the award. The Court of Appeal affirmed. (Id. at pp. 774-775.) The Supreme Court agreed that the award was not subject to judicial correction. The parties had agreed to submit the fee issue to arbitration, so the arbitrator did not exceed her powers in deciding the issue; and a court had no authority to review the arbitrator’s decision for error. (Id. at p. 776.) The claim that the decision was in direct conflict with the terms of the contract was no basis for reviewing the award. (Id. at p. 777.)
In Moore, borrowers took loans from a bank, giving deeds of trust on their homes as security. The loan documents included an arbitration clause with an attorneys’ fees provision. The borrowers later sued the bank in an effort to void the loan agreements. The bank cross-complained for judicial foreclosure. The trial court granted the bank’s motion to compel arbitration. (Moore, supra, 22 Cal.4th at pp. 784-785.) The arbitrators awarded the borrowers relief by canceling the loan agreements, but declined without explanation to award them attorneys’ fees. The superior court and Court of Appeal rejected the borrowers’ petition to correct the award. (Id. at pp. 785-786.) As in Moshonov, the Supreme Court held that the arbitrators did not exceed their powers in deciding the fee issue because the parties agreed to submit that issue to arbitration. This meant that the arbitrators’ decision on the issue was unreviewable even if erroneous. “Having submitted the fees issue to arbitration, plaintiffs cannot maintain the arbitrators exceeded their powers, within the meaning of section 1286.6, subdivision (b), by deciding it, even if they decided it incorrectly.” (Moore, supra, 22 Cal.4th at p. 787.)
Moncharsh, Moshonov, and Moore control this case and compel affirmance. There are exceptions to the rule that an arbitrator’s decision on an issue the parties submitted to arbitration is not subject to review in court on the ground that the decision was erroneous. Contrary to Thompson’s arguments, however, these exceptions are not applicable here. In Moncharsh, the Supreme Court reviewed case law holding that an arbitrator’s decision may be reviewed for error where the entire contract in which the arbitration clause is contained is illegal or contrary to public policy. (Moncharsh v. Heily & Blase, supra, 3 Cal.4th at p. 32.) It also “recognize[d] that there may be some limited and exceptional circumstances justifying judicial review of an arbitrator’s decision when a party claims illegality affects only a portion of the underlying contract.” (Ibid.) This would include cases “in which granting finality to an arbitrator’s decision would be inconsistent with the protection of a party’s statutory rights.” (Ibid.) Further, the statutory policy with which the contract provision conflicts would have to be a policy directly at odds with the policy in favor of arbitration: “Absent a clear expression of illegality or public policy undermining this strong presumption in favor of private arbitration, an arbitral award should ordinarily stand immune from judicial scrutiny.” (Ibid.)
Thompson argues that this exception applies to this case because the arbitrator’s failure to award fees conflicts with the policy expressed in Civil Code section 3250 that subcontractors on public works projects should get paid and should not have to bear litigation costs to ensure that they get paid. Thompson makes a similar argument about the arbitrator’s decision not to award costs of suit, contending that this decision conflicts with the policy expressed in Code of Civil Procedure section 1032 that prevailing parties should be awarded costs.
These policies do not fall within the exception delineated in Moncharsh. That exception deals with arbitral enforcement of contract provisions that are illegal or contrary to public policy. No similar provision is claimed to be at issue here. Further, the policies expressed by Civil Code section 3250 and Code of Civil Procedure section 1032 do not undermine the presumption in favor of private arbitration. In effect, Thompson would have us hold that any arbitration result denying a party something to which the party is entitled by law is reviewable in court because the result is contrary to the policy expressed by the law in question. This holding, however, would swallow the rule that legally erroneous arbitration awards are not reviewable just because they are legally erroneous.
Aguilar v. Lerner (2004) 32 Cal.4th 974 and Board of Education v. Round Valley Teachers Assn. (1996) 13 Cal.4th 269, which Thompson cites, are not to the contrary. Both cases applied the Moncharsh exception to permit review of arbitration awards that were claimed to be inconsistent with statutory provisions that governed the arbitrability of an issue or reviewability of an arbitration award. (Aguilar v. Lerner, supra, 32 Cal.4th at pp. 982-983 [arbitrator’s action claimed to be inconsistent with Mandatory Fee Arbitration Act]; Board of Education v. Round Valley Teachers Assn., supra, 13 Cal.4th at pp. 276-277 [arbitrator’s action inconsistent with provisions of Ed. Code governing issues subject to collective bargaining and arbitration under collective bargaining agreements].) Unlike Civil Code section 3250 and Code of Civil Procedure section 1032, the laws at issue in these two cases had a direct bearing upon the policy in favor of the finality of arbitration.
In Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362 (Advanced Micro Devices), the Supreme Court discussed another exception to the general rule. An arbitrator found that Intel breached a contract and, as a remedy, awarded Advanced Micro Devices the right to use intellectual property owned by Intel. The question presented was whether this remedy exceeded the arbitrator’s powers. (Id. at pp. 366-367.) The Supreme Court held that it did not, because the remedy bore “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.” (Id. at p. 367.) Elaborating, the court explained:
“Arbitrators are not obliged to read contracts literally, and an award may not be vacated merely because the court is unable to find the relief granted was authorized by a specific term of the contract. [Citation.] The remedy awarded, however, must bear some rational relationship to the contract and the breach. The required link may be to the contractual terms as actually interpreted by the arbitrator (if the arbitrator has made that interpretation known), to an interpretation implied in the award itself, or to a plausible theory of the contract’s general subject matter, framework or intent. [Citation.] The award must be related in a rational manner to the breach (as expressly or impliedly found by the arbitrator).” (Advanced Micro Devices, supra, 9 Cal.4th at p. 381.)
Advanced Micro Devices stands for the proposition that a court can vacate or correct an arbitration award if it fails to have a rational relationship with the contract whose breach it purports to remedy. This is a narrow exception, and the Supreme Court has applied it narrowly. In Moshonov, it rejected the claim that the Advanced Micro Devices exception applied because the arbitrator’s refusal to award attorneys’ fees was in direct conflict with the attorney’s fees provision of the parties’ contract. (Moshonov, supra, 22 Cal.4th at p. 777.) The arbitrator found that the prevailing party had prevailed only on noncontractual claims and that the fee provision in their contract therefore was inapplicable. (Id. at p. 775.) The Supreme Court said the exception in Advanced Micro Devices “does not appear directly applicable” in Moshonov because the losing party’s liability was not based on the contract, so the question of whether the remedy rationally was related to the contract could not arise. (Moshonov, supra, at p. 778.) Further, the arbitrator’s decision to award fees was rational because it flowed from the arbitrator’s finding that the liability was noncontractual and consequently did not arise from a dispute to which the attorneys’ fees provision of the contract applied. (Ibid.)
The Advanced Micro Devices exception does not authorize judicial review of the arbitrator’s award in this case. Here, the parties’ contract had no attorneys’ fees provision; Thompson challenges the arbitrator’s failure to award attorneys’ fees and costs available under the statutes. Advanced Micro Devices deals with the awarding of purported contract remedies that are not rationally supported by the parties’ contract. It says nothing about the non-awarding of remedies made available by statute. Further, the arbitrator’s ruling in this case rationally was related to the statutes. He found that there was no prevailing party because Swinerton successfully defended high-value claims, so no party was entitled to fees or costs under the applicable statutes. Thompson argues that this finding was erroneous. It claims there is always a prevailing party under Civil Code section 3250 because, unlike Civil Code section 1717, it does not expressly authorize the finding that there is no prevailing party. Even if this were correct, however, it would not make the arbitrator’s finding irrational. The arbitrator’s decision was supported by a plausible reason (each party won and lost on important parts of the case, so no party prevailed) and a plausible interpretation of Civil Code section 3250 (there may be no prevailing party in some cases). Advanced Micro Devices requires no more than this to allow the arbitrator’s award to stand.
Thompson relies on DiMarco v. Chaney (1995) 31 Cal.App.4th 1809 (DiMarco). That case involved an arbitration agreement under which the prevailing party was entitled to attorneys’ fees. The arbitrator found that one of the parties was the prevailing party, but refused to award attorneys’ fees. Purporting to apply Advanced Micro Devices, the Court of Appeal held that the arbitrator exceeded his powers because this result was inconsistent with the terms of the agreement. (Id. at pp. 1811, 1814-1815.) The Supreme Court declined invitations to overrule DiMarco in Moshonov and Moore, electing to distinguish it instead. (Moshonov, supra, 22 Cal.4th at p. 779; Moore, supra, 22 Cal.4th at p. 788.) The parties’ agreement in DiMarco provided that if there was a prevailing party, that party “shall” receive an award of attorneys’ fees. The arbitrator found a prevailing party, but mistakenly believed he had discretion to refuse to award fees to that party. The parties’ agreement was similar in Moore, but there the arbitrators did not designate a prevailing party, so the refusal to award fees was not inconsistent with the agreement. Even if the plaintiffs were the prevailing parties as a matter of law, they had established no more than legal error; this could not show that the arbitrators exceeded their powers. (Moore, supra, 22 Cal.4th at pp. 787-788.) In Moshonov, the arbitrator’s decision to deny fees was based on her determination that the claim upon which the prevailing party prevailed was not a contractual claim, so the victory fell outside the contract’s fee provision. This also was unlike the issue in DiMarco. (Moshonov, supra, 22 Cal.4th at p. 779.)
Although the Supreme Court did not overrule DiMarco, the grounds on which it distinguished it are exceedingly fine points. We believe the effect of Moshonov and Moore is—or nearly is—to confine DiMarco to its facts. We follow the Supreme Court’s approach to DiMarco in distinguishing it from the present case. Here, the arbitrator found that there was no prevailing party. Civil Code section 3250 therefore did not compel a fee award to any party, and Code of Civil Procedure section 1032 did not compel a costs award to any party. Thompson argues that section 3250 implicitly requires the court to find a prevailing party, but as we have said, this argument asserts at most an error of law.
For all these reasons, we conclude that the arbitrator did not exceed his powers when he decided not to award attorneys’ fees. The trial court did not err in dismissing the petition to correct the award.
II. Swinerton’s request to dismiss the appeal
Swinerton argues that we should dismiss this appeal instead of deciding it on its merits because Thompson accepted satisfaction of the judgment. We conclude that Thompson’s challenge to the denial of attorneys’ fees and costs never had any potential to affect the underlying judgment on the merits, so its acceptance of satisfaction of that judgment did not waive its right to appeal on the issue of fees and costs.
The parties filed a document titled “Stipulation Re Confirmation of and Judgment on Arbitration Award” on April 18, 2007. This stipulation stated that, the court having dismissed Thompson’s petition, the parties had no objection to judgment being entered pursuant to the award without further notice or briefing. It also recited: “By this Stipulation, Thompson Pacific Construction, Inc., does not waive its right to appeal from the Court’s order dismissing its Petition, pursuant to CCP § 1294(b).” The trial court filed its order and judgment confirming the arbitration award and dismissing Thompson’s petition to correct the award the same day.
The judgment was paid in full. On May 1, 2007, Thompson filed an acknowledgment of satisfaction of the judgment, using the Judicial Council form approved for that purpose. The form stated that the judgment was satisfied in full and named Swinerton Builders as the judgment debtor being released.
The rule has long been settled that a party ordinarily cannot accept the benefits of a judgment and subsequently appeal from the judgment as well; the acceptance of benefits is treated as a waiver. (E.g., Lee v. Brown (1976) 18 Cal.3d 110, 114; Schubert v. Reich (1950) 36 Cal.2d 298, 299; Turner v. Markham (1907) 152 Cal. 246, 247; Lovett v. Carrasco (1998) 63 Cal.App.4th 48, 53.) It is equally well established, however, that this general rule does not apply where the appeal is from a severable portion of the judgment, and a reversal can have no effect on the appellant’s right to the benefits accepted. (Lee v. Brown, supra, 18 Cal.3d at p. 115; Lovett v. Carrasco, supra, 63 Cal.App.4th at p. 53.) In this case, the only question presented in the appeal is whether the arbitrator exceeded his powers when he refused to award attorneys’ fees and costs. We do not see how a holding for Thompson on this issue on appeal could have affected the parties’ rights with respect to the merits of the underlying case. This case falls within the exception to the general rule of waiver.
Swinerton argues that the issue raised in Thompson’s appeal is really not severable from or independent of the award on the underlying merits of the case because the determination on fees and costs “cannot be reviewed in a vacuum and such a review would not necessarily leave the rest of the award unaffected.” Swinerton does not explain how the rest of the award could even conceivably be affected, however. As we have said, we do not see how it could be impacted.
Citing Guho v. City of San Diego (1932) 124 Cal.App. 680, Swinerton also argues that the exception does not apply because Thompson filed an acknowledgment of satisfaction of the judgment. We are not persuaded. In that case, a prevailing plaintiff appealed from a judgment awarding him damages, claiming that the amount should have been larger. The losing defendant notified the plaintiff that it would pay the judgment only upon receiving an executed satisfaction of judgment, so the plaintiff executed and filed one. (Id. at pp. 681-682.) The Court of Appeal granted the defendant’s motion to dismiss the appeal. It concluded that the appeal did in fact implicate the portion of the judgment that was satisfied, since the court or jury could have determined in a rehearing of the case that the plaintiff was entitled to less than he received. (Id. at p. 683.) That is not the situation here, as we have said. As an alternative holding, the court also stated: “If it be assumed that this appellant had the right to accept the amount paid and thereafter appeal from the judgment, we think he waived this right by accepting such payment upon condition that he satisfy the judgment and by executing and authorizing to be filed, a full and complete satisfaction thereof.” (Id. at p. 684.) It is not clear why it mattered that providing a satisfaction of judgment was imposed by the defendant as a condition of payment, but it appears that the Court of Appeal treated this fact as an indication of the parties’ intent to waive the right to appeal. There is no comparable fact here. To the contrary, the parties stipulated just days before the acknowledgment of satisfaction was filed that Thompson was not waiving its right to appeal.
III. Swinerton’s request for sanctions
Swinerton argued in its appellate brief that we should impose sanctions on Thompson because the appeal is frivolous. Swinerton also filed a separate motion for sanctions. We conclude that the appeal is not frivolous and deny the motion.
An appeal is frivolous if any reasonable attorney would agree that it is totally devoid of merit. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649-650.) We are authorized to impose sanctions for frivolous appeals. (Code Civ. Proc., § 907; Cal. Rules of Court, rule 8.276(a)(1).)
Swinerton advances two grounds for its motion. First, it contends that the appeal is frivolous because Thompson accepted payment and filed an acknowledgment of satisfaction of the judgment. We have already said that these facts do not make the appeal dismissible; they also fail to show that it is frivolous. Second, Swinerton argues that the appeal is frivolous because it is well established than an arbitration award cannot be reviewed in court even if it is legally incorrect and results in substantial injustice. Swinerton contends no reasonable attorney could conclude that this case falls outside this general rule. We turn to this argument now.
In essence, Thompson’s appeal rests on an idea that, when our Supreme Court declined to overrule DiMarco in Moshonov and Moore, it left an opening for certain types of claims that arbitrators exceeded their powers by refusing to award legally mandated attorneys’ fees. As we have said, our view is that Moshonov and Moore confine DiMarco to facts the same or nearly the same as those in DiMarco itself, i.e., to the situation where the parties’ contract says fees must be awarded to the prevailing party and the arbitrator finds a prevailing party but still refuses to award fees. Not every reasonable attorney would necessarily reach the same conclusion, however. In Moshonov and Moore, the Supreme Court identified facts that made DiMarco different, but it did not explain why those facts controlled the outcome. Attorneys know that facts like those in Moshonov and Moore will not support a petition to correct an arbitration award and that facts like those in DiMarco might support such a petition, but they are left to speculate about cases that are distinguishable from all three of these. Consequently, while any reasonable attorney would rate the present appeal a weak one, we cannot say any reasonable attorney would find it totally and completely devoid of merit. In so holding, we bear in mind the Supreme Court’s warning that sanctions for frivolous appeals “should be used most sparingly to deter only the most egregious conduct.” (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 651.)
Swinerton cites Pierotti v. Torian (2000) 81 Cal.App.4th 17. There the arbitrator found the plaintiff to be the prevailing party and awarded him attorneys’ fees on the basis of the attorneys’ fees clause in the parties’ contract. The defendant appealed from a judgment confirming the award, arguing that the prevailing-party determination was erroneous. The Court of Appeal affirmed and awarded sanctions to the plaintiff. (Id. at p. 21.) In finding the appeal frivolous, it relied on the principle that arbitration awards generally are unreviewable. It also cited Creative Plastering, Inc. v. Hedley Builders, Inc. (1993) 19 Cal.App.4th 1662, which held that an arbitrator’s finding for purposes of a fee award that one party prevailed was not reviewable in court. This case was cited and discussed extensively in the plaintiff’s brief but ignored in the defendant’s brief. (Pierotti v. Torian, supra, 81 Cal.App.4th at pp. 31-32.) Responding to the defendant’s argument that the Supreme Court’s decision to issue written opinions in Moshonov and Moore showed that similar issues were not easy to decide, the Court of Appeal distinguished those cases, stating that Creative Plastering was squarely on point and “emphasize[d] that this case involve[d] an element of procedural misbehavior that was lacking in Moore and Moshonov .…” (Pierotti v. Torian, supra, 81 Cal.App.4th at p. 32, fn. 9.) In the present case, Swinerton has cited no precedent that is precisely on point, i.e., no previous case in which it was held that an arbitrator did not exceed his powers by finding there was no prevailing party and declining to award attorneys’ fees under a statute alleged to require a fee award. Further, there is no element of procedural misbehavior. There is no inconsistency between the holding in Pierotti and our conclusion that the present appeal is not frivolous.
DISPOSITION
The judgment is affirmed. The motion for sanctions is denied. Defendants Swinerton Builders and United States Fidelity & Guaranty Company are awarded their costs on appeal.
WE CONCUR: Levy, J., Gomes, J.
“[T]he court … shall correct the award and confirm it as corrected if the court determines that: [¶] … [¶] (b) The arbitrators exceeded their powers but the award may be corrected without affecting the merits of the decision upon the controversy submitted .…”