Gorman

This appeal is from an order of the superior court, (Hon. Kevin McKenney) granting defendant and respondent John Gorman's motion for attorney's fees and costs. Wolpoff & Abramson and Calvin S. Rose appeared for plaintiff and appellant MBNA America Bank, N.A. Gorman and Miller and John Gorman appeared for defendant and respondent.

On August 4, 2004, appellant obtained an arbitration award in the amount of $8,042.29 against respondent. On May 26, 2005, appellant filed a petition to confirm the arbitration award in the trial court. In an order filed on February 1, 2006, the trial court denied the petition to confirm arbitration award on the ground that under Badie v. Bank of America (1998) 67 Cal.App.4th 779 , 79 Cal.Rptr.2d 273 (Badie), "a mailed insert or `bill stuffer' cannot serve as a waiver of the procedural right of trial by jury or as a basis for enforcement of an ADR clause by a unilaterally issued change in the original agreement."

On February 16, 2006, filed a motion for attorney's fees and costs. Respondent argued that his fees and costs were recoverable under (1) the attorney's fee provision in the credit card agreement sued upon by appellant; and (2)…