EHM Prods., Inc. v. Starline Tours of Hollywood, Inc.
EHM Prods., Inc. v. Starline Tours of Hollywood, Inc.
Opinion of the Court
*1060Starline Tours of Hollywood, Inc. (appellant) appeals from a judgment confirming an arbitration award. The arbitration involved a contract dispute between appellant and EHM Productions, Inc. doing business as TMZ (respondent) regarding appellant's duty to defend respondent in a lawsuit brought by appellant's bus drivers. Respondent obtained an award requiring appellant to defend respondent in the bus driver action. Following arbitration, the award was confirmed by a JAMS appellate panel. Respondent filed a petition to confirm the award, which was granted. Appellant appealed, and this court affirmed the award on October 4, 2017.
*1061After respondent filed its petition to confirm the arbitration award, the JAMS appellate panel determined that appellant owed respondent $41,429.92 in costs. Following confirmation of the initial arbitration award, respondent sought, and received, confirmation of the cost award. Appellant now appeals from the second judgment granting respondent's petition to confirm the cost award. Appellant's sole contention on appeal is that the trial court *864erred by entering two consecutive judgments resulting from the same arbitration. We find that appellant has failed to demonstrate error, therefore we affirm the second award.
BACKGROUND
In August 2012, appellant and respondent entered into a written contractual agreement captioned "TMZ-Starline Tour Bus Agreement." The agreement solidified the parties' intent to run a "TMZ branded, multi-media Hollywood bus tour in Southern California."
In December 2012, several bus drivers filed a putative class action against appellant alleging that it had violated certain wage and hour laws. The named plaintiffs sought to represent all similarly situated employees regardless of whether they worked in connection with the TMZ tour or one of appellant's other tours. On June 14, 2013, the putative class action complaint was amended to add TMZ Productions, Inc. (TMZ Productions) as a defendant.
Respondent tendered its defense to appellant. Appellant responded that it had no duty to indemnify TMZ Productions, but offered to indemnify under certain conditions.
In August 2013, respondent retained counsel to represent respondent and TMZ Productions. Between June 2013 and January 2014, respondent voluntarily agreed with the plaintiffs in the underlying lawsuit to be added as a defendant in order to secure the dismissal of TMZ Productions. The plaintiffs added respondent as a defendant in January 2014 and voluntarily dismissed TMZ Productions in April 2014.
PROCEDURAL HISTORY
The arbitration
On June 2, 2014, respondent filed a demand for arbitration, alleging breach of contract by appellant arising from its refusal to defend respondent in the underlying lawsuit. Respondent sought a declaration that appellant was required to defend TMZ Productions and respondent. Respondent sought an award of its costs and fees incurred through January 31, 2015, and a *1062declaration that appellant is required to pay respondent's reasonable attorney fees as they are incurred going forward.
The partial final award
On June 8, 2015, the arbitrator issued a "partial final award." The arbitrator found that appellant was obligated to defend TMZ Productions and respondent in the underlying lawsuit. The arbitrator ordered appellant to pay respondent $185,725 for its attorney fees and $15,836.83 for its costs incurred in the underlying action through January 31, 2015. The arbitrator further ordered appellant to pay respondent's reasonable attorney fees and costs in the underlying action going forward. The arbitrator expressly reserved jurisdiction over the matter "to ensure enforcement of [appellant's] defense obligation, payment of [respondent's] reasonable attorneys' fees and costs, and to resolve any dispute regarding indemnity, if necessary."
Appellant appealed the award under the JAMS Optional Appeal Procedure, as permitted in the parties' agreement. The appellate panel affirmed the arbitrator's partial final award in its entirety. The determination of costs on appeal was reserved for further decision.
On May 9, 2016, respondent filed a petition to confirm the partial final award in Superior Court. Starline opposed the petition on numerous grounds. On June 21, 2016, the trial court granted the petition, ordering respondent to give notice and *865prepare and serve a proposed order. Appellant objected to the proposed order. The court held a hearing on July 27, 2016. At the conclusion of the hearing, the court signed an amended judgment confirming the arbitration award.
On August 26, 2016, appellant filed an appeal from the judgment. On October 4, 2017, this court filed an opinion affirming the judgment in full.
Award of costs for the JAMS appeal
On May 12, 2016, three days after respondent filed its petition to confirm the partial final award, the JAMS appellate panel issued its "Final Award on Appeal" (cost award), determining respondent's costs for the JAMS appeal.
On August 22, 2016, respondent petitioned for confirmation of the cost award. Appellant opposed the petition, arguing, among other things, that *1063respondent waived its right to obtain confirmation of the cost award by failing to present it for confirmation prior to the entry of the first judgment.
The trial court rejected appellant's arguments and entered a judgment confirming the cost award on January 23, 2017. The court ordered appellant to pay respondent $41,429.92 in accordance with the cost award. The court cited Hightower v. Superior Court (2001)
Appeal of the cost award
Appellant filed a timely notice of appeal of the cost award on March 20, 2017.
DISCUSSION
I. Standard of review
The trial court's decision granting respondent's petition to confirm the cost award is reviewed de novo. ( Advanced Micro Devices, Inc. v. Intel Corp. (1994)
We briefly review the procedures leading up to confirmation of an arbitration award. Pursuant to Code of Civil Procedure section 1285, any party to an arbitration in which an award has been made may petition the court to "confirm, correct or vacate the award."
II. Appellant has failed to show that the one final judgment rule precludes confirmation of the cost award
Appellant argues that the incremental judgments entered in this case violate the one final judgment rule. ( Fleuret v. Hale Constr. Co. (1970)
The authority cited by appellant does not support appellant's position that the one final judgment rule prevented the trial court from confirming the cost award in this case. Fleuret involved a direct action and a cross-action. The trial court found in favor of the cross-defendants on the cross-complaint and entered a judgment that the cross-plaintiff take nothing on his cross-complaint. However, the issues raised in the direct action, and the resulting damages, had not been determined, and no judgment had been entered on the original complaint. Under those circumstances, the court determined that "[a] cross-complaint is not considered sufficiently independent to allow a separate final judgment to be entered upon it. [Citation.]" ( Fleuret, supra, 12 Cal.App.3d at p. 230,
*1065Nor does Kurwa . Kurwa explains that "[u]nder California's 'one final judgment' rule, a judgment that fails to dispose of all the causes of action pending between the parties is generally not appealable. [Citations.]" ( Kurwa, supra , 57 Cal.4th at p. 1100,
Appellant has failed to provide legal support for its argument that the one final judgment rule precludes confirmation of the cost award in this matter. Further, as the trial court pointed out, Hightower suggests that an incremental award process may be appropriate in situations where not all issues may be resolved at the time of the initial partial final award. ( Hightower, supra , 86 Cal.App.4th at p. 1419,
On appeal, the appellant argued that the partial final award was invalid because it violated section 1283.4.
Appellant questions the relevance of Hightower based on the disposition in that case. The Court of Appeal issued a writ of mandate directing the trial court to confirm the partial final award, enter "[a]n appropriate interlocutory judgment" and "send[ ] the matter back to the arbitrator for such further proceedings as may be required to permit the issuance of a final award *1066resolving all remaining issues." ( Hightower, supra , 86 Cal.App.4th at p. 1441,
While the procedure undertaken by respondent in this case may not be identical to that in Hightower , appellant has cited no law supporting its position that the procedure undertaken in this case was error. Hightower supports the incremental award process used by the arbitrator in this matter, thus the cost award was the proper subject of a petition to confirm.
Appellant also attempts to distinguish Hightower because it involved costs that had not yet been incurred. In contrast, appellant argues, in this case there were no "potential and conditional issues" at hand. ( Hightower, supra , 86 Cal.App.4th at p. 1439,
Hightower approved an incremental process where it is "reasonably necessary, if not essential" to the establishment and enforcement of the remedy that the arbitrator has fashioned. ( Hightower, supra , 86 Cal.App.4th at p. 1439,
When presented with a petition to confirm an arbitration award, the court's role is to "confirm, correct, or vacate the award, or dismiss the petition entirely. [Citations.]" ( Cinel v. Christopher (2012)
III. Principles of waiver and estoppel do not preclude confirmation of the cost award
Appellant next argues that respondent should not be permitted to seek separate confirmation of awards and cost awards in sequential fashion when those awards co-exist before any judgment has been entered. Appellant asks that we determine that appellant has waived any right to obtain, or should be estopped, from seeking confirmation of the cost award. Appellant cites Oakland Raiders v. Oakland-Alameda County Coliseum, Inc. (2006)
Appellant notes that respondent had four years to confirm the underlying arbitration award, (§ 1288), thus could have waited for the cost award prior to filing a petition to confirm. Appellant cites several cases as examples of situations where an arbitration award and subsequent cost award were presented simultaneously to the trial court for confirmation.
Appellant criticizes respondent's choice not to present the cost award to the trial court via amended petition. Appellant cites In re Marriage of Corona (2009)
DISPOSITION
The judgment is affirmed.
We concur:
LUI, P.J.
ASHMANN-GERST, J.
EHM Productions, Inc. v. Starline Tours of Hollywood, Inc. , B277311 [nonpub. opn.].
The JAMS appellate panel had reserved this issue in its April 11, 2016 order.
All further statutory references are to the Code of Civil Procedure.
Pursuant to section 1286.2, a court may vacate an arbitration award if the court determines any of the following:
"(1) The award was procured by corruption, fraud, or other undue means.
"(2) There was corruption in any of the arbitrators.
"(3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator.
"(4) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.
"(5) The rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title.
"(6) An arbitrator making the award either: (A) failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware; or (B) was subject to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely demand to disqualify himself or herself as required by that provision."
Section 1283.4 provides that an arbitration 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."
Appellant has requested that this court reverse the trial court judgment and direct the trial court to enter an order "denying" the petition. The statutory scheme does not provide an option for "denial" of a petition to confirm arbitration, as appellant has requested. (Law Offices of David S. Karton v. Segreto (2009)
(See, e.g., DiMarco v. Chaney (1995)
We note that the arbitrator in this matter has reserved jurisdiction to enforce appellant's defense obligation going forward. Thus, the arbitrator may enter future substantive and cost awards. Appellant's position that there may be only one final judgment for one arbitration could arguably prevent confirmation of such future awards in this matter. Under the circumstances of this case, where appellant has an ongoing enforceable obligation to defend respondent, such a result would be inequitable.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.