Plummer v. Day | Eisenberg CA4/3

Filed 3/22/13 Plummer v. Day | Eisenberg CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

MARK B. PLUMMER,

Plaintiff and Respondent, G046567

v. (Super. Ct. No. 07CC05089)

DAY | EISENBERG, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, James J. Di Cesare, Judge. Affirmed. Eisenberg Law Firm and Mark W. Eisenberg for Defendant and Appellant. Law Offices of Mark B. Plummer and Mark B. Plummer for Plaintiff and Respondent.

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Defendant Day | Eisenberg (D.E.) appeals from a judgment confirming an arbitration award in favor of plaintiff Mark B. Plummer against codefendant Andrew 1 Bisom. The arbitrator also found Plummer‟s claims against D.E. were meritless. D.E. contends the court erred by denying D.E. costs as a prevailing party at arbitration. Because the arbitrator denied D.E.‟s requested costs, the trial court properly denied D.E.‟s motion to correct the arbitration award to award D.E. costs.

FACTS

Plummer sued D.E., Bisom, and another defendant for conversion and other causes of action. Plummer alleged he was entitled to a portion of the settlement proceeds from a personal injury case on which he, D.E., and Bisom had provided legal services. D.E., Plummer, and Bisom stipulated to submit “the pending claims to a binding arbitration . . . .” As to costs, the arbitration stipulation contained two provisions: “Parties shall be entitled to costs with respect to the arbitration per code” and “[c]osts of the arbitration will be split equally amongst the three parties subject to reallocation and recoverable costs.” In his written arbitration award, the arbitrator concluded Plummer‟s tort claims against D.E. were “legally and factually untenable.” As to Bisom, the arbitrator concluded Plummer was entitled to the reasonable value of his services, and awarded 1 A judgment entered after the court rules on a party‟s petition to confirm or correct a private arbitration award is appealable under Code of Civil Procedure section 1294, subdivision (d). All further statutory references are to the Code of Civil Procedure. The arbitration stipulation provided, “The parties to the arbitration waive any right to appeal.” We deny Plummer‟s motion for involuntary dismissal of this appeal because we affirm the judgment in favor of Plummer and because the arbitration‟s stipulation provision that the parties waive any right to appeal is vague (e.g., petitions to confirm or correct an award in the superior court might be considered a form of appeal). D.E.‟s argument concerning the non-appealability of arbitration awards under section 1141.23 is inapposite since that statute applies to judicial arbitration.