Marcus & Millichap Real Estate Investment Brokerage Co. v. Woodman Investment Group

The trial court denied a petition to confirm an arbitration award filed by Marcus & Millichap Real Estate Investment Brokerage Company, Tony Azzi and John P. Walsh (collectively Marcus & Millichap) and granted the cross-petition to vacate the award filed by Woodman Investment Group, LLC (Woodman) and Eli Sasson, Woodman's managing partner, on the ground the arbitrator exceeded her authorized powers and the award could not be corrected without affecting the merits of the decision. (Code Civ. Proc., § 1286.2, subd. (a)(4).) [1] The court did not issue an order for rehearing pursuant to section 1287, and no appeal was taken from the order vacating the arbitration award. The trial court then awarded attorney fees and costs pursuant to section 1293.2 to Woodman and Sasson as the prevailing parties in the postarbitration judicial proceedings. Marcus & Millichap appeals the award of fees and costs. We affirm.

Marcus & Millichap filed a demand for arbitration in May 2002 for payment of a commission pursuant to a listing agreement with Woodman dated April 19, 2001 covering a shopping center located on Woodman Avenue in Van Nuys, California. Woodman filed a cross-complaint…

The trial court denied a petition to confirm an arbitration award filed by Marcus & Millichap Real Estate Investment Brokerage Company, Tony Azzi and John P. Walsh (collectively Marcus & Millichap) and granted the cross-petition to vacate the award filed by Woodman Investment Group, LLC (Woodman) and Eli Sasson, Woodman’s managing partner, on the ground the arbitrator exceeded her authorized powers and the award could not be corrected without affecting the merits of the decision. (Code Civ. Proc., § 1286.2, subd. (a)(4).) 1 The court did not issue an order for rehearing pursuant to section 1287, and no appeal was taken from the order vacating the arbitration award. The trial court then awarded attorney fees and costs pursuant to section 1293.2 to Woodman and Sasson as the prevailing parties in the postarbitration judicial proceedings. Marcus & Millichap appeals the award of fees and costs. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Arbitration

Marcus & Millichap filed a demand for arbitration in May 2002 for payment of a commission pursuant to a listing agreement with Woodman dated April 19, 2001, covering a shopping center located on Woodman Avenue in Van…

I respectfully dissent from that portion of the opinion holding that the arbitration proceedings in the trial court were final thereby entitling Woodman to claim attorney fees. The majority opinion, in my view, is overly technical in its approach to the problem, and sidesteps equitable principles which should lead to a reversal. Of great importance is the fact that the Legislature has not revealed its intent when it enacted Code of Civil Procedure section 1287 as to the meaning of the word “rehearing.” In my view the question is one of first impression and requires the application of two guiding principles which I hereafter discuss. Before applying the guiding principles which I find applicable and determinative of the appeal, it first appears prudent to repeat the content of the statute which is pertinent to the central issue in this case. Section 1287 is entitled “Rehearing before arbitrators” and provides as follows:

When the Legislature uses language in a statute which is indicative of discretion, such as the use of “may” in Code of Civil Procedure, section 1287, as opposed to more mandatory language such as “must” or “shall,” the parties to litigation and the courts are left…