Bilodeau v. Modern Mobile Homes CA2/6 ( 2021 )


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  • Filed 3/29/21 Bilodeau v. Modern Mobile Homes CA2/6
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
    not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
    has not been certified for publication or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION SIX
    RAYMOND BILODEAU et al.,                                       2d Civ. No. B302791
    (Super. Ct. No. 56-2018-
    Plaintiffs and Appellants,                               00521703-CU-PA-VTA)
    (Ventura County)
    v.
    MODERN MOBILE HOMES,
    INC. et al.,
    Defendants and
    Respondents.
    A note that was the subject of an arbitration contained a
    provision for attorney fees to the prevailing party in any action
    on the note. The arbitration agreement itself contained no
    provision for attorney fees. It was error for the trial court to
    award attorney fees to the prevailing party in a motion to vacate
    the arbitration award. We reverse.
    FACTS
    Modern Mobile Homes, Inc. (Modern) is a dealer in new
    and used mobile homes. It purchased a used mobile home and
    remodeled it for sale. Raymond and Joanna Bilodeau agreed to
    purchase the mobile home for $99,415. They paid $45,000 down.
    Modern financed the balance by taking the Bilodeaus’ note
    secured by a security agreement in the mobile home.
    The purchase agreement contained an arbitration clause
    providing in part, “Buyers and sellers agree that any dispute or
    claim in law or equity arising between them out of this
    agreement, or any resulting transaction, . . . shall be decided by
    neutral binding arbitration . . . .” The purchase agreement did
    not contain an attorney fee clause. The note provided, “If any
    action is instituted on this Note, I/we promise to pay such sums
    as the Court may fix as attorney’s fees.”
    Shortly after the purchase, the Bilodeaus began extensive
    modifications to the interior of the mobile home. They claimed
    that during the modifications they found substantial structural
    defects. They claimed that Modern had defrauded them, and
    demanded rescission of the purchase transaction.
    Modern refused rescission, denying any wrongdoing, and
    claiming the Bilodeaus’ modifications had left the mobile home
    an empty husk.
    Unable to reach a settlement, the Bilodeaus invoked
    arbitration. Their complaint in arbitration prayed for damages
    and rescission, including a declaration that the purchase money
    note and security agreement have been rescinded.
    After a hearing, the arbitrator awarded the $45,000 down
    payment to Modern and declared that the Bilodeaus’ note would
    be cancelled upon retransfer of the mobile home to Modern. The
    arbitrator did not award attorney fees.
    The Bilodeaus made a motion in the trial court to vacate
    the arbitration award. They alleged that the arbitrator
    2.
    committed misconduct by failing to disclose conflicts of interest.
    Modern opposed the motion. The trial court found against the
    Bilodeaus and denied the motion.
    Modern moved for attorney fees under the attorney fee
    clause in the note as the prevailing party in the motion to vacate.
    Modern requested $21,000. The trial court awarded Modern
    $10,000.
    DISCUSSION
    Code of Civil Procedure1 section 1284.2 provides: “Unless
    the arbitration agreement otherwise provides or the parties to
    the arbitration otherwise agree, each party to the arbitration
    shall pay his pro rata share of the expenses and fees of the
    neutral arbitrator, together with other expenses of the
    arbitration incurred or approved by the neutral arbitrator, not
    including counsel fees or witness fees or other expenses incurred
    by a party for his own benefit.”
    Here the arbitration agreement does not provide for an
    award of attorney fees. In the absence of any agreement
    providing for an award of attorney fees in an arbitration
    proceeding, the express terms of section 1284.2 preclude such an
    award.
    The trial court based its award of fees on a provision in the
    note. The note provides for an award of fees in any action on the
    note. The arbitrator could have, but did not award attorney fees
    in the arbitration. A petition to vacate an arbitration award is
    not an action on a note. An attorney fee provision applicable to a
    substantive claim does not extend to a petition to vacate an
    arbitration award resolving that claim. (Ling v P.F. Chang’s
    China Bistro, Inc. (2016) 
    245 Cal.App.4th 1242
    , 1263 [statute
    1   All statutory references are to the Code of Civil Procedure.
    3.
    providing for attorney fees on substantive claim does not apply to
    petition to vacate arbitration award].)
    Modern’s reliance on Carole Ring & Associates v. Nicastro
    (2001) 
    87 Cal.App.4th 253
    , and Marcus & Millichap Real Estate
    Investment Brokerage Co. v. Woodman Investment Group (2005)
    
    129 Cal.App.4th 508
    , is misplaced. In both those cases, there is
    an express provision for attorney fees in the contract for
    arbitration. (Carol Ring & Associates, at p. 261; Marcus &
    Millichap Real Estate Investment Brokerage Co., at p. 511, fn. 2.)
    Here the arbitration agreement contained no provision for
    attorney fees.
    Nevertheless, Bilodeau argues he is entitled to raise the
    issue of attorney fees post judgment. That may be true in some
    instances, but not in this case.
    DISPOSITION
    The order awarding attorney fees is reversed. Costs on
    appeal are awarded to appellants.
    NOT TO BE PUBLISHED.
    GILBERT, P. J.
    We concur:
    YEGAN, J.
    TANGEMAN, J.
    4.
    Henry J. Walsh, Judge
    Superior Court County of Ventura
    ______________________________
    Law Offices of Michael D. Kwasigroch, Michael D.
    Kwasigroch for Plaintiffs and Appellants.
    Law Office of Joseph R. Brown, Joseph R. Brown for
    Defendants and Respondents.
    5.
    

Document Info

Docket Number: B302791

Filed Date: 3/29/2021

Precedential Status: Non-Precedential

Modified Date: 3/29/2021