De Sena v. Richert CA3CA3

Filed 5/13/13 De Sena v. Richert CA3CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Nevada) ----

JO ANN M. DE SENA, C070461

Plaintiff and Appellant, (Super. Ct. No. 77395)

v.

JOSEPH RICHERT,

Defendant and Respondent.

Like spectators at a sporting event with a beach ball, some litigants manage to keep an action bouncing along in the air indefinitely. This is an appeal from the denial of a motion for legal fees incurred in the course of confirming the ruling of a mediator acting as an arbitrator, involving a settlement reached in the course of mediation of an underlying action. We shall affirm the trial court’s order denying the legal fees.

1

FACTUAL AND PROCEDURAL BACKGROUND

The facts of the underlying dispute between the parties, who are neighboring property owners, are irrelevant to this appeal. While there are hundreds of pages in the joint appendix (and its augmentation), the pertinent facts are few.

Plaintiff Jo Ann M. De Sena and defendant Joseph Richert executed a written draft settlement of the underlying action in the presence of a mediator.1 Plaintiff’s attorney prepared a formal settlement agreement, to which defendant raised repeated objections. Pursuant to the draft settlement, the mediator sat as an arbitrator over the dispute about the provisions of the proposed formal settlement.2 In a January 2011 ruling,3 the mediator concluded that the proposed formal settlement agreement conformed to the draft settlement, with the exception of a minor provision.4 The ruling did not address legal fees other than to state “All claims for attorney fees and costs in this mediation, arbitration or action shall be made pursuant to noticed motion or as otherwise provided