Wednesday, May 16, 2007

Acosta v. Kerrigan (Cal. Ct. App. - May 16, 2007)

The central issue in this appeal is whether the trial court or arbitrator is the one who should decide whether (and the extent to which) attorney's fees are contractually recoverable for prevailing on a petition to compel arbitration. Interesting, and important.

But even more interesting is the interchange between the majority and the dissent. Here's what Justice Johnson says in holding that the trial court, rather than the arbitrator, should decide the issue:

"Our interpretation of this attorney fee provision, in the absence of any extrinsic evidence, is subject to our de novo review. But that turns out to be no easy task. This case proves contracting parties as well as the Legislature can hand the courts a conundrum in which two contradictory interpretations are equally plausible. By only the slimmest of margins we have elected to adopt the construction advocated in this majority opinion, while recognizing the position taken in the dissenting opinion is perfectly reasonable, too."

Talk about modesty. Which is something that's nice to see. Meanwhile, here's how Justice Zelon opens her dissent: "While I concur . . . that the issue presented by this case is extremely close, I cannot conclude that this is a matter for the trial court, rather than the arbitrator."

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