Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BC352472, Alice E. Altoon, Judge.
Law Offices of Mark S. Branner and Mark S. Branner for Plaintiff and Appellant.
Law Offices of Rodney T. Lewin, Rodney T. Lewin and R. Stephen Duke for Defendants and Respondents.
TURNER, P. J.
Plaintiff, William Varela, appeals from a March 28, 2007 judgment entered on an arbitration award in favor of defendants, David Houston and Dawn Umemoto. We affirm the judgment.
This real property dispute proceeded to arbitration pursuant to a settlement agreement. The settlement agreement contained both an arbitration clause and an attorney’s fee provision. The arbitration clause called for arbitration of “any controversy, claim or dispute . . . arising out of or relating to this Agreement or the alleged breach thereof.” The legal fees provision authorized the prevailing party in arbitration to recover its attorney’s fees and costs. It also required the arbitrator’s award to specifically provide for the recovery of attorney’s fees and costs. The attorney’s fee provision stated: “Legal Fees and Costs. If any party to this Agreement institutes any action, suit, counterclaim, appeal, arbitration or mediation for any relief against another party, declaratory or otherwise . . ., to enforce the terms hereof or to declare rights hereunder . . ., then the prevailing party in such Action, whether by arbitration or final judgment, shall be entitled to have and recover of and from the other party all costs and expenses of the Action, including reasonable attorneys’ fees and costs . . . . Any [judgment, order, ruling, or award] entered in such Action shall contain a specific provision providing for the recovery of attorneys’ fees and costs . . . . A court or arbitrator shall fix the amount of reasonable attorneys’ fees and costs upon the request of either party. Any judgment or order entered in any final judgment shall contain a specific provision providing for the recovery of all costs and expenses of suit, including reasonable attorneys’ fees and expert fees and costs . . . .” (Italics added.)
The parties submitted the question of attorney’s fees to the arbitrator. Plaintiff concedes that, at the arbitrator’s request, the parties submitted declarations as to attorney’s fees and costs.
The arbitrator issued a binding award. The arbitrator ordered plaintiff to pay defendants $30,000 “as prevailing party attorneys fees.” Defendants sought confirmation of the award in the trial court. Plaintiff objected on grounds the arbitrator incorrectly exercised the power to award attorney’s fees to defendants. Plaintiff did not claim the arbitrator was without power to make the award. Plaintiff did not seek to correct or modify the award in the trial court.
On appeal, plaintiff contends it was an abuse of discretion to award attorney’s fees to defendants. We agree with defendants that the attorney’s fee award was an issue submitted to the arbitrator for decision and is not subject to judicial review for error. Our Supreme Court has held that when, as here, an arbitrator is empowered to award attorney’s fees, the decision is final and it is not subject to judicial review for error. (Moore v. First Bank of San Luis Obispo (2000) 22 Cal.4th 782, 786-788; Moshonov v. Walsh (2000) 22 Cal.4th 771, 775-779.) In Moore,the Supreme Court explained: “Where the entitlement of a party to attorney fees under Civil Code section 1717 is within the scope of the issues submitted for binding arbitration, the arbitrators do not ‘exceed[] their powers’ ([Code Civ. Proc.,] §§ 1286.2, subd. (d), 1286.6, subd. (b)), as we have understood that narrow limitation on arbitral finality, by denying the party’s request for fees, even where such a denial order would be reversible legal error if made by a court in civil litigation. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 28 . . .; Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 376-381 . . . .)” (Moore v. First Bank of San Luis Obispo, supra, 22 Cal.4th at p. 784.) Here, the fee question was submitted to the arbitrator for decision. The arbitrator’s decision is final; it is not subject to judicial review for error. (Moore v. First Bank of San Luis Obispo, supra, 22 Cal.4th at pp. 786-788; Moshonov v. Walsh, supra, 22 Cal.4th at pp. 775-779; Delaney v. Dahl (2002) 99 Cal.App.4th 647, 654-657; Pierotti v. Torian (2000) 81 Cal.App.4th 17, 23-26.)
Plaintiff raises additional arguments in his reply brief on appeal. We will not consider those assertions. Consistent with well-established authority, absent justification for failing to present an argument in the opening brief, this court will not consider an issue raised for the first time in a reply brief. (People v. Bonilla (2007) 41 Cal.4th 313, 349-350; Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4; People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26; People v. Peevy (1998) 17 Cal.4th 1184, 1206; Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10; Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11; Hibernia Sav. and Loan Soc. v. Farnham (1908) 153 Cal. 578, 584; Kahn v. Wilson (1898) 120 Cal. 643, 644; Crowley Maritime Corp. v. Boston Old Colony Ins. Co. (Jan. 11, 2008, A116710) __ Cal.App.4th __, __ [2008 WL 110098]; People v. Newton (2007) 155 Cal.App.4th 1000, 1005; In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 214; Authority for California Cities Excess Liability v. City of Los Altos (2006) 136 Cal.App.4th 1207, 1216, fn. 2; Singh v. Lipworth (2005) 132 Cal.App.4th 40, 43, fn. 2; Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 371, fn. 8; Save the Sunset Strip Coalition v. City of West Hollywood (2001) 87 Cal.App.4th 1172, 1181, fn. 3; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 763-766; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)
We deny defendants’ sanctions request. A party seeking sanctions on appeal must file a separate motion and include a declaration. (Cal. Rules of Court, rule 8.276; Kajima Engineering & Const., Inc. v. Pacific Bell (2002) 103 Cal.App.4th 1397, 1402; Committee to Save Beverly Highlands Homes Assn. v. Beverly Highlands Homes Assn. (2001) 92 Cal.App.4th 1247, 1273, fn. 10.) Absent compliance with the procedural separate motion requirement, a sanctions request may be denied. (Kajima Engineering & Const., Inc. v. Pacific Bell, supra, 103 Cal.App.4th at p. 1402; Committee to Save Beverly Highlands Homes Assn. v. Beverly Highlands Homes Assn., supra, 92 Cal.App.4th at p. 1273, fn. 10.) Defendants have not filed a separate sanctions motion.
The judgment is affirmed. Defendants, David Houston and Dawn Umemoto, are to recover their costs on appeal from plaintiff, William Varela.
We concur: MOSK, J., KRIEGLER, J.