Otay River Constructors v. San Diego Expressway

Where an action is brought solely to compel arbitration of contractual disputes between the parties, we conclude that (1) a party who succeeds in obtaining an order denying the petition to compel arbitration is a prevailing party in the action on the contract even though the merits of the parties’ underlying contractual disputes have not yet been resolved and (2) an order denying a request for costs and attorney fees under such circumstances is appealable as a “special order after final judgment” under Code of Civil Procedure section 1294, subdivision (e). (All statutory references are to the Code of Civil Procedure unless otherwise specified.) Based on these conclusions, we reverse the order of the superior court denying fees and costs to defendant herein.

FACTUAL AND PROCEDURAL BACKGROUND

In connection with its development of two related highway projects in San Diego County, San Diego Expressway (Expressway), entered into two design-build contracts with general contractor Otay River Constructors (Otay) referred to herein as the “Gap/Connector Contract” and the “Toll Road Contract” (together the Design-Build Contracts). Thereafter, the parties entered into a third…