Fontana Construction v. Stone
Filed 5/17/06 Fontana Construction v. Stone CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
| FONTANA CONSTRUCTION, INC., Plaintiff and Respondent, v. BRUCE J. STONE et al., Defendants and Appellants. |
A111034
(San Francisco County Super. Ct. No. 402701)
|
This is an attempted appeal by defendants Bruce J. Stone, Clayton D. Root, and Jean Marie Offenbacher from a judgment confirming an arbitration award in favor of plaintiff Fontana Construction, Inc., and an order for foreclosure of plaintiff's mechanic's lien and sale of real property. Plaintiff has moved to dismiss the appeal as untimely filed. We grant the motion and dismiss the appeal.
We also grant plaintiff's unopposed request for an award of reasonable attorney fees incurred in bringing its motion to dismiss. The amount shall be determined by the superior court on remand.
BACKGROUND
Defendants engaged plaintiff to make improvements to a parcel of real property they own in San Francisco. Plaintiff subsequently brought an action against defendants to foreclose on its mechanic's lien, or, alternatively, for breach of contract. Defendant Stone cross-complained against plaintiff for breach of contract, fraud, general negligence, and intentional tort. The parties agreed to settle the case by submitting it to binding arbitration and that the arbitrator's award would be confirmed by the court as a judgment.
The net effect of the arbitrator's award favored plaintiff. The arbitrator subsequently issued an attorney fee award in favor of plaintiff as prevailing party, pursuant to an attorney fee clause in the parties' contract.
On April 9, 2004, plaintiff petitioned to confirm the arbitration award, to foreclose its mechanic's lien, and for costs and attorney fees, pursuant to Code of Civil Procedure sections 1285, 1285.4, 1286, and 1290 et seq. In response, defendants requested that plaintiff's petition to confirm be dismissed, and that the arbitration award be vacated or corrected to conform to their purported true statement of the facts.
At the June 10, 2004 hearing on the competing pleadings, the court dismissed defendants' motion as untimely filed. It did not vacate plaintiff's petition to confirm, but it declined to enter an order confirming the award because of omissions or conflicting or unclear statements in the award as to the exact amount of the award and as to the exact parties obligated by the arbitration award. Counsel for plaintiff informed the court that he would withdraw the petition to confirm, return to the arbitrator to clarify these two points, and then refile the petition. The court then took plaintiff's petition off calendar.
Thereafter, defendants filed a new petition to vacate or correct the arbitration award. Plaintiff opposed this petition to vacate, and at the September 21, 2004 hearing thereon, its attorney informed the court that he had not yet refiled the petition to confirm. The court took the matter under submission.
On November 9, 2004, the court denied defendants' petition to vacate the arbitration award.
On November 22, 2004, plaintiff filed a â€
