Bilodeau v. Modern Mobile Homes CA2/6

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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.