This case was last updated from Los Angeles County Superior Courts on 11/18/2020 at 06:35:05 (UTC).

ROGUE APPAREL GROUP, INC. VS COULTER VENTURES, LLC D/B/A ROGUE FITNESS

Case Summary

On 01/02/2020 ROGUE APPAREL GROUP, INC filed an Other - Arbitration lawsuit against COULTER VENTURES, LLC D/B/A ROGUE FITNESS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is TERESA A. BEAUDET. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0026

  • Filing Date:

    01/02/2020

  • Case Status:

    Other

  • Case Type:

    Other - Arbitration

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

TERESA A. BEAUDET

 

Party Details

Petitioner

ROGUE APPAREL GROUP INC.

Respondent

COULTER VENTURES LLC DBA ROGUE FITNESS

Attorney/Law Firm Details

Petitioner Attorneys

BLAKELY BRENT HERBERT

ZHAI MARK SHIQIAN

BLAKELY BRENT H.

ROTHMAN ANTHONY JASON

Respondent Attorneys

PRESIADO LEO

PRESIADO LEO J.

 

Court Documents

Notice - NOTICE OF ENTRY OF AMENDED JUDGMENT

10/29/2020: Notice - NOTICE OF ENTRY OF AMENDED JUDGMENT

Minute Order - MINUTE ORDER (HEARING ON APPLICATION FOR ORDER FOR APPEARANCE AND EXAMINATION)

10/20/2020: Minute Order - MINUTE ORDER (HEARING ON APPLICATION FOR ORDER FOR APPEARANCE AND EXAMINATION)

Order - ORDER ORDER ON STIPULATION

10/7/2020: Order - ORDER ORDER ON STIPULATION

Association of Attorney

10/6/2020: Association of Attorney

Notice of Ruling - NOTICE OF RULING OF MINUTE ORDER

10/7/2020: Notice of Ruling - NOTICE OF RULING OF MINUTE ORDER

Stipulation and Order - STIPULATION AND ORDER STIPULATION TO (1) CONTINUE JUDGMENT DEBTOR EXAMINATION, ETC.

10/7/2020: Stipulation and Order - STIPULATION AND ORDER STIPULATION TO (1) CONTINUE JUDGMENT DEBTOR EXAMINATION, ETC.

Notice of Ruling

10/7/2020: Notice of Ruling

Minute Order - MINUTE ORDER (HEARING ON APPLICATION FOR ORDER FOR APPEARANCE AND EXAMINATION)

10/8/2020: Minute Order - MINUTE ORDER (HEARING ON APPLICATION FOR ORDER FOR APPEARANCE AND EXAMINATION)

Notice of Ruling

10/9/2020: Notice of Ruling

Notice of Ruling - NOTICE OF RULING NOTICE OF ENTRY OF MINUTE ORDER

10/9/2020: Notice of Ruling - NOTICE OF RULING NOTICE OF ENTRY OF MINUTE ORDER

Judgment - JUDGMENT AMENDED JUDGMENT

9/1/2020: Judgment - JUDGMENT AMENDED JUDGMENT

Order - ORDER RE: COULTER VENTURES, LLC'S MOTION TO DETERMINE PREVAILING PARTY AND FIX ATTORNEYS' FEES

10/1/2020: Order - ORDER RE: COULTER VENTURES, LLC'S MOTION TO DETERMINE PREVAILING PARTY AND FIX ATTORNEYS' FEES

Judgment - JUDGMENT AMENDED JUDGMENT

9/1/2020: Judgment - JUDGMENT AMENDED JUDGMENT

Minute Order - MINUTE ORDER (HEARING ON MOTION FOR ATTORNEY FEES)

10/1/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION FOR ATTORNEY FEES)

Proof of Service (not Summons and Complaint) - PROOF OF SERVICE (NOT SUMMONS AND COMPLAINT) AMENDED

9/23/2020: Proof of Service (not Summons and Complaint) - PROOF OF SERVICE (NOT SUMMONS AND COMPLAINT) AMENDED

Brief - BRIEF APPENDIX OF EXHIBITS IN SUPPORT OF MOTION FOR ATTORNEYS FEES

9/8/2020: Brief - BRIEF APPENDIX OF EXHIBITS IN SUPPORT OF MOTION FOR ATTORNEYS FEES

Motion for Attorney Fees

9/1/2020: Motion for Attorney Fees

Notice - NOTICE OF CHANGE IN TIME FOR HEARING ON JUDGMENT DEBTOR EXAMINATION

9/3/2020: Notice - NOTICE OF CHANGE IN TIME FOR HEARING ON JUDGMENT DEBTOR EXAMINATION

31 More Documents Available

 

Docket Entries

  • 10/29/2020
  • DocketNotice (of Entry of Amended Judgment); Filed by COULTER VENTURES, LLC (Respondent)

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  • 10/20/2020
  • Docketat 10:00 AM in Department 50, Teresa A. Beaudet, Presiding; Hearing on Application for Order for Appearance and Examination - Held

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  • 10/20/2020
  • DocketMinute Order ( (Hearing on Application for Order for Appearance and Examination)); Filed by Clerk

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  • 10/09/2020
  • DocketNotice of Ruling (NOTICE OF ENTRY OF MINUTE ORDER); Filed by COULTER VENTURES, LLC (Respondent)

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  • 10/09/2020
  • DocketNotice of Ruling; Filed by COULTER VENTURES, LLC (Respondent)

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  • 10/08/2020
  • Docketat 10:00 AM in Department 50, Teresa A. Beaudet, Presiding; Hearing on Application for Order for Appearance and Examination - Not Held - Continued - Stipulation

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  • 10/08/2020
  • Docketat 08:30 AM in Department 50, Teresa A. Beaudet, Presiding; Hearing on Application for Order for Appearance and Examination - Not Held - Continued - Court's Motion

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  • 10/08/2020
  • DocketMinute Order ( (Hearing on Application for Order for Appearance and Examination)); Filed by Clerk

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  • 10/07/2020
  • DocketNotice of Ruling (OF MINUTE ORDER); Filed by COULTER VENTURES, LLC (Respondent)

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  • 10/07/2020
  • DocketOrder (Order on Stipulation); Filed by COULTER VENTURES, LLC (Respondent)

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30 More Docket Entries
  • 01/16/2020
  • DocketResponse to Petition (RESPONSE TO ROGUE APPAREL GROUP, INC.'S PETITION TO VACATE CONTRACTUAL ARBITRATION AWARD); Filed by COULTER VENTURES, LLC (Respondent)

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  • 01/16/2020
  • DocketPetition to Confirm Arbitration Award; Filed by COULTER VENTURES, LLC (Respondent)

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  • 01/03/2020
  • DocketMotion to Vacate (Arbitration Award); Filed by Rogue Apparel Group, Inc. (Petitioner)

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  • 01/03/2020
  • DocketMemorandum of Points & Authorities; Filed by Rogue Apparel Group, Inc. (Petitioner)

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  • 01/03/2020
  • DocketDeclaration (of Mark S. Zhai In Support); Filed by Rogue Apparel Group, Inc. (Petitioner)

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  • 01/03/2020
  • DocketMotion to Vacate (Arbitration Award); Filed by Rogue Apparel Group, Inc. (Petitioner)

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  • 01/02/2020
  • DocketCivil Case Cover Sheet; Filed by Rogue Apparel Group, Inc. (Petitioner)

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  • 01/02/2020
  • DocketCivil Case Cover Sheet; Filed by Rogue Apparel Group, Inc. (Petitioner)

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  • 01/02/2020
  • DocketPetition to Vacate or Alter Arbitration Award (CCP 1285 - 1287.6); Filed by Rogue Apparel Group, Inc. (Petitioner)

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  • 01/02/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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Tentative Rulings

Case Number: 20STCP00026    Hearing Date: October 01, 2020    Dept: 50

 

 

Superior Court of California

County of Los Angeles

Department 50

rogue apparel group, inc.,

Petitioner,

vs.

coulter ventures, llc,

Respondent.

Case No.:

20STCP00026

Hearing Date:

October 1, 2020

Hearing Time:

10:00 a.m.

[TENTATIVE] ORDER RE:

COULTER VENTURES, LLC’S MOTION TO DETERMINE PREVAILING PARTY AND FIX ATTORNEYS’ FEES

Background

On January 2, 2020, Petitioner Rogue Apparel Group, Inc. (“Petitioner”) filed a petition to vacate a contractual arbitration award that was awarded to Respondent Coulter Ventures, LLC (“Respondent”) on September 23, 2019 (the “Arbitration Award”). On July 15, 2020, the Court denied the petition, confirmed the Arbitration Award, and entered judgment in favor of Respondent.

Respondent now moves for an order determining that it is the prevailing party and entitled to an award of attorney’s fees in the amount of $63,466.50. The motion is unopposed.

Legal Standard

Civil Code section 1717 provides: “In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs.” Code of Civil Procedure section 1033.5, subdivision (a)(10)(A) states that attorneys’ fees authorized by contract may be recoverable. Finally, California Rules of Court, rule 3.1702(1) states: “A notice of motion to claim attorney's fees . . . must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case . . . .” (Cal. Rules of Court, rule 3.1702(1).) This is the only limitation under statutory and judicial authority regarding time of filing a motion for attorney’s fees.

“[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. … The reasonable hourly rate is that prevailing in the community for similar work. The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.” ((PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 [internal citations omitted].) “[T]he court's discretion in awarding attorney fees is … to be exercised so as to fully compensate counsel for the prevailing party for services reasonably provided to his or her client.” ((Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 395.) “[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” ((Id. at p. 396.) The trial court may reduce the award where the fee request appears unreasonably inflated, such as where the attorneys’ efforts are unorganized or duplicative. ((Serrano v. Unruh (1982) 32 Cal.3d 621, 635, fn. 21.)

Discussion

The Arbitration Award followed a dispute between the parties over the interpretation and enforcement of the “Settlement and Co-Existence Agreement” entered into by the parties in March 2017 (the “2017 Agreement”). (Van Es Decl., ¶ 4; Appendix, Ex. 1.) The 2017 Agreement includes the following provision at section 17:

“If a Party breaches this Agreement, any non-breaching Party is entitled, in addition to all other rights and remedies, to seek: (a) an injunction restraining the breach; and (b) a decree for specific performance of the provisions of this Agreement. If either Party breaches this Agreement, the non-breaching Party shall be entitled to reasonable attorneys’ fees connected to the enforcement of this Agreement.”

In the Arbitration Award, the arbitrator found that “RAG’s refusal – pending the outcome of this arbitration – to be financially responsible for Rogue Fitness’ litigation costs even though Rogue Fitness controlled the defense amounted to a breach of the 2017 Agreement.” (Appendix, Ex. 2, ¶ 33.) Based on this, the Court finds that Respondent was the prevailing party in the underlying arbitration and is thus entitled to an award of reasonable attorney fees connected to the enforcement of the 2017 Agreement.

Respondent was represented by two law firms in this action: Banner & Witcoff and Brown Rudnick LLP. Between January 3, 2020 and August 19, 2020, the attorneys at Banner & Witcoff spent 122.8 hours in connection with this action, at associate rates between $265/hour and $290/hour and partner rates between $450/hour and $540/hour, totaling $49,441.50 in fees. (Van Es Decl., ¶ 8; Appendix, Ex. 10.) Between January 6, 2020 and July 15, 2020, the attorneys at Brown Rudnick spent 24.1 hours in connection with this action, at an associate rate of $375/hour and a partner rate of $660/hour, totaling $14,025 in fees. (Presiado Decl., ¶ 10; Appendix, Ex. 11.)

The Court finds that the hourly rates requested by Respondent are reasonable and the hours identified in the Van Es and Presiado Declarations and the billing records in Exhibits 10 and 11 were reasonably expended.

Conclusion

Based on the foregoing, Petitioner’s motion for attorney fees is granted. The Court awards Petitioner $63,466.50 in attorney fees.

Petitioner is ordered to give notice of this ruling.

DATED: October 1, 2020 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court

Case Number: 20STCP00026    Hearing Date: July 15, 2020    Dept: 50

 

 

Superior Court of California

County of Los Angeles

Department 50

rogue apparel group, inc.,

Petitioner,

vs.

coulter ventures, llc,

Respondent.

Case No.:

20STCP00026

Hearing Date:

July 15, 2020

Hearing Time:

10:00 a.m.

[TENTATIVE] ORDER RE:

MOTION TO VACATE ARBITRATION AWARD

Background

On January 2, 2020, Petitioner Rogue Apparel Group, Inc. (“Petitioner”) filed a petition to vacate a contractual arbitration award that was awarded to Respondent Coulter Ventures, LLC (“Respondent”) on September 23, 2019 (the “Award”). (Zhai Decl., ¶ 2, Ex. B.)

Petitioner now moves the Court to vacate the Award pursuant to Code of Civil Procedure section 1286.2. Respondent opposes.

Legal Standard

“Any party to an arbitration in which an award has been made may petition the court to

confirm, correct or vacate the award. The petition shall name as respondents all parties to the arbitration and may name as respondents any other persons bound by the arbitration award.”

((Code Civ. Proc., § 1285.)

“A petition under this chapter shall: (a) Set forth the substance of or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence of such an agreement. (b) Set forth the names of the arbitrators. (c) Set forth or have attached a copy of the award and the written opinion of the arbitrators, if any.” ((Code Civ. Proc., § 1285.4.) “If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made…unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding.” ((Code Civ. Proc., § 1286.) Any response to the petition is required to be filed and served within 10 days after service of the petition. ((Code Civ. Proc., § 1290.6.)

The specific grounds upon which an arbitrator’s award may be vacated are set forth in Code of Civil Procedure section 1286.2, subdivision (a). That statute provides that the court shall vacate the award if it determines any of the following:

(1) The award was procured by corruption, fraud or other undue means.

(2) There was corruption in any of the arbitrators.

(3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator.

(4) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.

(5) The rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by other conduct of the arbitrators contrary to the provisions of this title.

(6) An arbitrator making the award either: ¿(A) failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware;¿or (B) was subject to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely demand to disqualify himself or herself as required by that provision.

Except on these grounds, arbitration awards are immune from judicial review in proceedings to challenge or enforce the award. ((Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 11.) Limiting grounds for judicial review effectuates the parties' agreement that the award be final. It also reflects that arbitrators ordinarily need not follow the law and may base their decisions on “broad principles of justice and equity.” ((Id. at p. 10.) “Neither the merits of the controversy ... nor the sufficiency of the evidence to support the arbitrator's award are matters for judicial review.” ((Morris v. Zuckerman (1968) 69 Cal.2d 686, 691.) The court “may not substitute its judgment for that of the arbitrators.” (Ibid. .)

Code of Civil Procedure section 1283.4 provides that an arbitration award shall “include a determination of all the questions . . . the decision of which is necessary in order to determine the controversy.” ((Code Civ. Proc., § 1283.4.) “[I]t is presumed that all issues submitted for decision have been passed on and resolved, and the burden of proving otherwise is upon the party challenging the award.” ((Rodrigues v. Keller (1980) 113 Cal.App.3d 838, 842.) “[T]o discharge that burden, the party attacking the award must demonstrate that a particular claim was expressly raised at some time before the award, and that the arbitrator failed to consider it.” ((Ibid. [internal citations omitted].) However, “the failure of an arbitrator to make a finding on even an express claim does not invalidate the award, so long as the award ‘serves to settle the entire controversy.” ((Id. at p. 843 [internal quotation mark omitted].) This is because “the merits of the controversy are for the arbitrator, not for the courts.” (Ibid. .) “[I]t is not appropriate for courts to review the sufficiency of the evidence before the arbitrator. . . .” (Ibid. .)

Discussion

Petitioner owns U.S. registered trademarks covering the “ROGUE” mark and variations thereof, which Petitioner acquired from a third party in 2015 and 2017. Respondent designs and manufactures strength and fitness equipment and began to sell clothing bearing “Rogue” and/or “Rogue Fitness” in 2007. In March 2017, after Petitioner accused Respondent of infringing its ROGUE trademarks, the parties entered into a Settlement and Co-Existence Agreement (the “Settlement Agreement”). (Zhai Decl., ¶ 1, Ex. A.) The Settlement Agreement included provisions under which Petitioner agreed to indemnify Respondent for certain liabilities “arising from or resulting from third-party challenges to [Respondent’s] exercise of its rights under Section 1(A) and 1(E)” of the Settlement Agreement. (Zhai Decl., ¶ 1, Ex. A, ¶ 9.)

On August 3, 2018, a third party, Oregon Brewing Company (“OBC”), filed a lawsuit against Respondent in federal court in Ohio, alleging claims of trademark infringement and related state law claims (the “Ohio Action”). Respondent notified Petitioner on August 3, 2018 of the Ohio Action, but the parties disagreed as to the scope of the indemnity obligations under the Settlement Agreement. Therefore, on January 8, 2019, pursuant to an arbitration clause in the Settlement Agreement, Respondent initiated arbitration in order to address the dispute. On September 23, 2019, the arbitrator issued a Final Award in the underlying arbitration. (Zhai Decl., ¶ 2, Ex. B.) The Final Award incorporated an earlier interim award issued on June 26, 2019, wherein the arbitrator found that Respondent was entitled to control the defense of the Ohio Action and that Petitioner must indemnify Respondent for all potential damages in the Ohio Action. (Zhai Decl., ¶ 3, Ex. C.) The Final Award awarded $540,498.50 to Respondent, which consists of the following:

  1. Reasonable attorney’s fees and costs incurred by Respondent in defending the Ohio Action ($119,966);

  2. Reasonable attorney’s fees and costs incurred in connection with the arbitration ($386,248); and

  3. Allocation of the administrative fees and expenses of the arbitration, including the arbitrator’s compensation ($34,284.50).

Petitioner contends that the arbitrator exceeded his powers when he awarded the attorney’s fees and that the arbitrator substantially prejudiced Petitioner’s rights by his refusal to hear evidence material to the attorney’s fee award.

“Arbitrators ‘exceed[] their powers’ by acting without subject matter jurisdiction, deciding an issue that was not submitted to arbitration, arbitrarily remaking the contract, upholding an illegal contract, issuing an award that violates a well-defined public policy or a statutory right, fashioning a remedy that is not rationally related to the contract, or selecting a remedy not authorized by law.” ((Greenspan v. LADT, LLC (2010) 185 Cal.App.4th 1413, 1436 [internal citations omitted].)

Petitioner argues that the arbitrator exceeded his powers because he lacked authority to award any attorney fees to Respondent. For the arbitration, the parties agreed to proceed under the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”). (Rule 47(d)(ii) of the AAA Commercial Rules authorizes “an award of attorneys’ fees if all parties have requested such an award or it is authorized by law or their arbitration agreement.”[1]

First, Petitioner contends that an award of attorney fees is not authorized because both parties did not request such an award. Petitioner acknowledges that it originally requested attorney fees among its claims against Respondent, but Petitioner asserts that it withdrew its counterclaim for attorney fees on June 13, 2019, prior to the close of the arbitration proceedings.[2] Based on this, Petitioner argues that the arbitrator no longer had authority to award any attorney fees on the basis that all parties had requested them. In the Interim Award, the arbitrator addressed this issue as follows: “Pursuant to Rule 8, the Arbitrator holds that once all parties have requested an award of attorneys’ fees, the Arbitrator is authorized by Rule 47(d)(ii) to award attorneys’ fees notwithstanding one parties’ subsequent withdrawal of its own claim for attorneys’ fees.” (Zhai Decl., ¶ 3, Ex. C, § 32.) Rule 8 of the AAA Commercial Rules provides that “[t]he arbitrator shall interpret and apply these rules insofar as they relate to the arbitrator’s powers and duties.” The arbitrator further noted that he had imposed a deadline for amendments to the parties’ respective claims, and that Petitioner’s request to withdraw its attorney fee claim came after the deadline had passed. (Zhai Decl., ¶ 3, Ex. C, § 32.)

Respondent counters that, because Petitioner failed to raise this argument to the arbitrator, it is waived for judicial review. But in support of this proposition, Respondent cites to inapposite case law. In Moncharsh v. Heily & Blasé, supra, 3 Cal.4th at page 31, the Court of Appeal held that “unless a party is claiming (i) the entire contract is illegal, or (ii) the arbitration agreement itself is illegal, he or she need not raise the illegality question prior to participating in the arbitration process, so long as the issue is raised before the arbitrator.” “Failure to raise the claim before the arbitrator, however, waives the claim for any future judicial review.” (Ibid.) Here, Petitioner does not argue that the Settlement Agreement is illegal, or that the arbitration agreement itself is illegal. Petitioner does not argue that Rule 47(d)(ii) is illegal, either. Therefore, Petitioner was not required to raise the issue of the propriety of awarding attorney fees before the arbitrator.

Nevertheless, Respondent’s next argument, that the arbitrator’s interpretation and application of Rule 47(d)(ii) cannot be judicially reviewed on the merits, is well-taken. It is undisputed that when the parties’ claims and counterclaims were filed, both parties requested attorney fees. (Zhai Decl., ¶ 3, Ex. C, § 14.4.) Under a plain reading of Rule 47(d)(ii), the condition to an award of attorney fees was met (“The award of the arbitrator(s) may include . . . an award of attorneys’ fees if all parties have requested such an award . . . .”). Rule 47(d)(ii) imposes no time limit on the request, so the fact that Petitioner withdrew its claim for attorney fees on the last day of the arbitration hearing does not necessarily invalidate an award of attorney fees. More importantly, the dispute over the attorney fee award is, by its nature, procedural, as it involves interpretation of Rule 47(d)(ii). When a procedural dispute arises concerning the conduct of the arbitration hearing, courts properly defer to the arbitrator’s interpretation and application of the operative rules. (See Greenspan v. LADT, LLC, supra, 185 Cal.App.4th at p. 1451 [“Because LADT's argument is based on procedural disputes concerning the conduct of the arbitration hearing and the scheduling of deadlines—the resolution of which is vested solely in the arbitrator under JAMS Rules—we defer to the arbitrator's interpretation and application of the Rules, as we now discuss.”].) Here, Petitioner’s challenge to the Final Award is based on an alleged violation of Rule 47(d)(ii), and Rule 8 grants the arbitrator authority to interpret the governing rules. Accordingly, the Court defers to the arbitrator’s decision that Rule 47(d)(ii) permitted him to award attorney fees to Respondent.

Petitioner also argues that the arbitrator exceeded his powers by holding that Respondent was entitled to indemnity “for all potential damages in the Ohio Action arising from [Respondent’s] use of ROGUE on clothing, both before and after March 2017.” (Zhai Decl., ¶ 2, Ex. B, § VI(d).) Petitioner argues that Civil Code section 2778, subdivision (3) allows “only those defense costs that were incurred in good faith, and in the exercise of a reasonable discretion.” (City of Watsonville v. Corrigan (2007) 149 Cal.App.4th 1542, 1552 [internal quotations omitted].) Thus, according to Petitioner, until the conclusion of the Ohio Action, whether defense costs were incurred in good faith and in the exercise of a reasonable discretion cannot be fully determined. But the arbitrator’s use of the word “potential” indicates that the arbitrator did take into consideration the contingent nature of any fee award. Therefore, the Court does not find that the arbitrator exceeded his powers.

Next, Petitioner argues that the arbitrator failed to hear evidence material to the issue of the reasonableness of Respondent’s requested attorney fees. Petitioner asserts that it filed an opposition to Respondent’s request for attorney fees, which presented evidence against and objected to all fees sought by Respondent (the “Fee Opposition”). (Zhai Decl., ¶ 4, Ex. D.) Petitioner argues that the arbitrator did not consider Petitioner’s evidence because the arbitrator stated in the Final Award that Petitioner’s Fee Opposition “made no specific mention of the hours spent by [Respondent’s] attorneys in the Ohio Action.” (Zhai Decl., ¶ 2, Ex. B, p. 2-3.) But Petitioner points to no portion of the Fee Opposition to the attorney fees request that makes specific mention of the hours relating to the Ohio Action. Moreover, based on the Court’s review of the Fee Opposition, there was no evidence submitted to the arbitrator regarding the reasonableness of the requested fees. If no evidence was submitted, then the fact that the arbitrator did not consider evidence is not dispositive as to the issue of whether the Final Award should be vacated. Indeed, it is apparent that the arbitrator considered Petitioner’s arguments regarding the reasonableness of the requested fees, and as noted by Respondent, “courts will not review the validity of [an] arbitrator’s reasoning.” (Moncharsh v. Heily & Blase, supra, 3 Cal.4th at p. 11.) Thus, the Court does not find that the arbitrator refused to hear material evidence relating to the fees issue.

Conclusion

Based on the foregoing, Petitioner’s motion to vacate the arbitrator’s final award is denied.

The Court orders that the Final Award is confirmed. (Law Offices of David S. Karton v. Segreto (2009) 176 Cal.App.4th 1, 8-9 [“If the trial court which does not dismiss the petition also does not correct or vacate an arbitration award, it must confirm the award. Entry of judgment in conformity therewith is required.”].)

The Court will sign the proposed judgment submitted by Respondent.

Respondent is ordered to give notice of this ruling.

DATED: July 15, 2020 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court


[1] Although neither of the parties request that the Court take judicial notice of this rule, the Court may and does take judicial notice on its own volition. (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 752.)

[2] The Court notes that Petitioner does not cite to any evidence in support of any of the procedural facts. Nevertheless, the arbitrator states in the Interim Award (Zhai Decl., ¶ 3, Ex. C) that the evidentiary hearings took place on June 12-13, 2019.

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