Monday, January 12, 2026
Page 1
Court of Appeal:
Fees May Follow Prevailing on Motion to Appoint Arbitrator
Opinion Rejects Assertion That Success Was Only ‘Interim Procedural Step,’ Says Where Motion Was Filed After Previous Mediator Stepped Down in Case That Went Straight to Arbitration, Ruling Was Final Adjudication
By Kimber Cooley, associate editor
Div. One of the Fourth District Court of Appeal has held that a trial judge did not err in awarding a party attorney fees for succeeding on a motion to appoint an arbitrator under a contract providing that “the prevailing party” may recover such costs incurred “in having the matter ordered” to arbitration, rejecting the opposing side’s assertion that the ruling was premature as the success was only as to an “interim procedural step” in an ongoing dispute.
Distinguishing between orders to compel and those deciding requests to appoint an arbitrator, the court noted that, as to the former, a trial court will retain “twilight” jurisdiction until the matter is resolved but will not do so if the case began in arbitration and only bubbled up to the courthouse when things did not go as planned.
Justice Julia C. Kelety authored the decision, filed Dec. 17 and certified for publication on Thursday, saying:
“Where, as here, one party is forced to go to court to enforce a specific contractual provision like the appointment of an arbitrator, and prevails on that action when the trial court enters a final judgment in favor of that party, that party is entitled to its related attorney fees, apart from the attorney fees it may receive in arbitration or litigation over separate contractual claims.”
Acting Presiding Justice Terry B. O’Rourke and Justice Jose S. Castillo joined in the opinion.
Settlement Agreement
The question arose after a disagreement erupted in 2016 between the parties to a 2005 settlement agreement, Roberta V. Barbanell, El Rancho De Vida, El Rancho De Vida Three LLC, and El Rancho De Vida Four LLC (collectively, the “Barbanell entities”), on the one hand, and Raymond E. Lodge and Condor’s Nest LLC (together, “Lodge”), on the other, that purported to resolve a century-old water rights dispute.
Under the contract, they agreed to submit any controversies to mediation and that “[t]he prevailing party in the arbitration may recover its reasonable attorneys’ fees” and “all…costs incurred by that party in having the matter ordered to…arbitration.”
After the parties submitted their dispute to arbitration, Lodge filed two demands to disqualify the arbitrator several years into the proceedings, and the mediator withdrew from the action.
Lodge then filed a lawsuit asserting the same claims as those raised in the informal proceedings. The Barbanell entities responded by filing a petition to appoint a new arbitrator.
San Diego Superior Court Judge Earl H. Maas III granted the Barbanell entities’ request in May 2023, and judgment was entered in their favor. Maas further found that they were the prevailing parties and, as such, were entitled to request attorney fees “pursuant to subsequent filings.”
After succeeding in arbitration, the Barbanell entities returned to court to request an award of attorney fees. In March 2024, Maas granted the motion, and an amended judgment awarding them $68,800 was entered.
Recovery of Fees
On appeal, Lodge argued that the award was not warranted under Civil Code §1717, which provides for the recovery of fees “where the contract specifically” calls for one party to pay the other side’s litigation costs. He asserted that Maas’ order was premature because the underlying petition did not resolve all actions under the contract and, as such, the Barbanell entities were improperly adjudged the “prevailing parties.”
Kelety acknowledged that Lodge cited “a slew of cases that support postponing awards of attorney fees until the resolution of all claims pending in arbitration,” but said:
“Lodge does not, however, cite legal authority that supports postponing attorney fee awards where the superior court appoints an arbitrator….[I]t is a superior court’s jurisdiction over unresolved contract claims that forestalls attorney fees awards, and not the mere presence of disputes under the contract, and this disposes the appeal.”
She explained:
“Here, the Barbanell entities served Lodge with an arbitration complaint, Lodge responded with counterclaims, and the parties proceeded with the arbitrator without either party needing to file a motion to compel arbitration. After the original arbitrator withdrew…, the Barbanell entities filed an independent petition to appoint a new arbitrator….Thus, the trial court below had no twilight jurisdiction over the claims subject to arbitration—it instead resolved the only issue before it and appointed a new arbitrator so that the parties could finish the dispute resolution process.”
No Twilight Jurisdiction
Saying that “[w]here there is only a single issue in the action before the trial court, and its judgment disposes of that issue, there is no twilight jurisdiction that prevents a final determination of the parties’ rights or an award of attorney fees,” she remarked:
“Lodge…asks that we hold the presence of related contract claims pending in arbitration and litigation…forestall an award of attorney fees because the underlying petition to appoint an arbitrator…was an ‘interim procedural step.’ We decline to do so—the underlying petition was…a discrete action, where the only contract claim in the proceeding before the court was whether to grant the petition.”
Kelety added:
“The trial court here terminated the single issue before it when it entered judgment in favor of the Barbanell entities….Accordingly, we find no error in the trial court awarding such fees.”
The case is Barbanell v. Lodge, 2026 S.O.S. 106.
Copyright 2026, Metropolitan News Company