Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV055859.
McAdams, J.
Appellant Preferred Energy Services, Inc. (PES) sued respondents Infoseek Corporation, Go.com, and Walt Disney Internet Group (hereafter jointly Infoseek) for breach of contract. The parties arbitrated their dispute and the arbitrator issued an award in favor of PES. PES petitioned the court to confirm the award and requested postarbitration, prejudgment interest; postaward attorney fees; and postaward costs. The trial court confirmed the award, but denied the request for interest, attorney fees, and costs.
On appeal, PES contends the court erred when it denied its requests for postaward, prejudgment interest; postaward attorney fees; and postaward costs. We agree and reverse the judgment. We also remand the matter to the trial court to determine the amount of interest, attorney fees, and costs due.
FACTS AND PROCEDURAL HISTORY
I. Contractual Relationship Between Parties
On May 12, 1999, Infoseek entered into a Consultant Agreement (Agreement) with PES in which it retained PES to review past charges on its “utility (electric, natural gas, water and/or sewer) and telecommunication vendor billings to determine if incorrect billings and/or overcharges exist[ed].” Pursuant to the Agreement, if PES determined that errors or overcharges existed, it would file claims on behalf of Infoseek and negotiate with Infoseek’s vendors to obtain refunds or credits for the errors or overcharges. In addition, PES agreed to “identify opportunities for [Infoseek] to achieve future on-going cost reductions” (hereafter on-going savings) that would not be dependent upon reductions in usage and or diminish the quality of Infoseek’s utility services.
In exchange, Infoseek agreed to pay PES 50 percent of all refunds or credits it obtained with regard to past services and 50 percent of the on-going savings identified in PES’s report with regard to future services for a period of 36 months.
The Agreement provided that “any dispute regarding or relating to this Agreement … shall be submitted to arbitration….” The Agreement also contained an attorney fees clause.
II. Nature of the Dispute
PES alleged Infoseek failed to pay PES 50 percent of the on-going savings PES procured for Infoseek with regard to services from AT & T and Sprint, two telecommunications providers. In its defense, Infoseek argued that it was fraudulently induced to enter into the Agreement and that the contract was therefore void or should be reformed to conform to the promises Infoseek relied on when entering into the contract. Infoseek also challenged the existence of a connection between the savings it received on its telecommunications costs and PES’s activities.
III. Arbitration Proceedings and Award
Pursuant to the Agreement, the parties arbitrated their dispute. The arbitration hearing was bifurcated, with separate hearings on the issues of liability and damages. On June 26, 2003, the arbitrator concluded that Infoseek was liable to PES for damages for failure to pay 50 percent of the savings PES procured for Infoseek from AT & T and Sprint for a period of three years. The arbitrator also held that Infoseek was wholly responsible for the administrative fees and expenses of the arbitration, as well as the arbitrator’s compensation, and ordered Infoseek to reimburse PES $5,710 that PES had deposited with the American Arbitration Association (AAA) to cover such fees and expenses.
The arbitrator held a further hearing on the issue of damages on October 1, 2004, and entered an interim award on November 22, 2004. The parties submitted further briefing on the interim award in January and February 2005.
On March 9, 2005, the parties submitted a joint letter to the arbitrator in which they stipulated that PES was entitled to $91,659 in damages for breach of the Agreement and $74,339 in interest. The parties continued to dispute the amount due for attorney fees. The joint letter also stated: “There only remains the issue of arbitration costs.”
After considering the parties’ submissions, the arbitrator issued a “Final Award” on April 11, 2005, awarding PES $91,659 in contract damages and $74,339 in interest. According to the award, PES’s attorney told the arbitrator “that the delay of one month in calculating the interest was his responsibility, so interest [was] claimed only through December.” The arbitrator ordered Infoseek to reimburse PES the $4,847.50 it had paid AAA toward the costs of the arbitration and awarded PES $36,664 in attorney fees. PES had a 40 percent contingency fee agreement with its attorneys. The arbitrator noted that the amount of the attorney fee award “was equivalent to the 40% contingency fee on the damages.” But the arbitrator explained that “the contingency fee arrangement was not a dispositive factor. The attorney fees were determined by looking at other factors as well as the contingency arrangement, including the hours [PES’s] attorney estimated he had spent and the hours spent by [Infoseek’s] attorney.”
Presumably the reference was through December 2004.
The award also provided: “This Final Award is in full settlement of all claims submitted to the arbitration and this matter is now closed, but for the calculation of interest for which the arbitrator retains jurisdiction as set forth above, and the specification of arbitration costs.”
After the arbitrator issued her Final Award, PES claimed “interest for January 2005 to the date of the award,” which was April 11, 2005. The issue was submitted to the arbitrator for “further clarification or ruling” in July 2005. Infoseek opposed the request for additional interest, arguing that the parties had stipulated to $74,339 in interest in their March 9, 2005 joint letter. On August 2, 2005, the arbitrator denied PES’s request for additional interest. The arbitrator explained, “The interest in the Final Award was awarded in the precise amount to which the parties had stipulated. It is not within the scope of my authority as arbitrator to alter the Final Award….”
IV. Delay in Payment of Arbitration Award
On August 29, 2005, counsel for PES sent counsel for Infoseek a letter, requesting payment of the arbitration award within 10 days.
On October 4, 2005, counsel for PES sent an e-mail to counsel for Infoseek inquiring regarding the status of the payment. He asked opposing counsel to inform him if there was some legitimate reason for the delay, “otherwise my marching orders are to seek confirmation of the award and a judgment.”
That same day, counsel for Infoseek responded that he had spoken with the case manager at AAA and was trying to figure out how Infoseek was to reimburse PES for its share of the arbitration costs. He wanted to know whether AAA was going to refund PES the amount it had advanced toward the arbitration and then bill Infoseek or whether Infoseek was to reimburse PES directly and if so, how much. The case manager had responded that the file was in storage. Counsel for Infoseek promised to contact the case manager at AAA again and told counsel for PES that the case manager’s response was the only thing he was waiting for before “cutting” a check.
On November 3, 2005, counsel for PES contacted Infoseek’s counsel regarding the payment again. He suggested Infoseek pay the principal amount due on the award and that they resolve the “trivial amount of costs later.” He also asserted that PES was entitled to interest from the date of the award.
On November 10, 2005, counsel for Infoseek responded that after the arbitrator’s decision of August 2, 2005, rejecting PES’s request for additional interest, the only issue was the calculation of PES’s costs. He stated that he had never received any information regarding costs from PES’s attorneys, but that he had obtained some cost information from AAA. He stated, “Since receiving that information a month ago, I will and do, plead the press of business in not requesting the check from my client to satisfy this award.” He also argued that the arbitrator had already ruled that PES was not entitled to additional interest, that Infoseek should not have to write piecemeal checks, and that PES was not entitled to interest after August 2, 2005, since the delay in determining the final amount due was caused by PES’s failure to submit cost information necessary to determine the final award.
V. Petition and Motion to Confirm Arbitration Award
In January 2006, PES filed a petition to confirm the arbitration award. In addition to entering judgment in accordance with the award, PES asked the court to award interest from April 11, 2005 (the date of the arbitrator’s Final Award), at the contractual rate of 18 percent, plus attorney fees and costs of suit. Infoseek filed an “answer” to the petition to confirm the arbitration award in which it alleged that it had offered to satisfy the arbitration award in full.
In April 2006, PES filed a motion to confirm the arbitration award. Citing Code of Civil Procedure section 1288, PES argued that the award was final and binding on Infoseek, since Infoseek did not challenge the award within 100 days after the service of the award. PES also asked the court to award: (1) postaward, prejudgment interest from April 11, 2005, to the date of judgment; (2) attorney fees for confirming and enforcing the award; (3) arbitration costs that were not covered by the Final Award; and (4) costs of the judicial proceeding.
Code of Civil Procedure section 1288 provides: “A petition to confirm an award shall be served and filed not later than four years after the date of service of a signed copy of the award on the petitioner. A petition to vacate an award or to correct an award shall be served and filed not later than 100 days after the date of the service of a signed copy of the award on the petitioner.” (Italics added.)
In addition to the amounts awarded in arbitration, PES claimed $42,272.90 in postaward, prejudgment interest. PES based its interest claim on 395 days at $107.02 per day; the daily interest figure was based on a total arbitration award of $217,017 at 18 percent interest. PES argued that it had “spent an additional year litigating the arbitration award, costs, interest and attorney fees….” It claimed $16,909.16 in attorney fees for postaward activities; which was equivalent to 40 percent of the postaward, prejudgment interest. PES claimed $9,507.50 in arbitration costs and a $40 filing fee for the motion to confirm the award and asked the court to enter a total judgment of $276,239.06.
In opposition to the motion, Infoseek argued that it did not dispute the arbitration award and had been prepared to pay it since October 2005 when the amount owed became certain. It also argued that the arbitration award was not final until August 2, 2005, the date the arbitrator denied PES’s request for additional interest covering the period January 2005 through April 11, 2005. Infoseek contended that the reason for the delay was PES’s failure to provide information regarding its costs of arbitration. It argued that PES was not entitled to attorney fees because it had failed to prove the reasonable amount of the fees and the arbitrator had already rejected PES’s request for additional fees. Finally, it argued the motion was wholly unnecessary.
At the hearing on the motion, the parties advised the court that they were having settlement discussions and asked the court to defer ruling on the motion. The court allowed counsel to argue the matter and took the motion under submission. The parties did not settle.
In July 2006, the court issued an order confirming the arbitration award in the amount of $207,509.50. It denied PES’s request for additional attorney fees and interest “because there was no need to incur these expenses.” In April 2007, the court entered judgment in accordance with the order on the motion. PES appeals.
DISCUSSION
I. Standard of Review
In this appeal, we review the trial court’s order confirming the arbitration award. PES raises two issues on appeal. It contends the trial court erred when it denied PES’s request for postaward, prejudgment interest and when it denied PES’s request for postaward attorney fees.
With regard to the interest issue, PES does not discuss the standard of review. Infoseek argues that the order denying PES’s claim for postaward, prejudgment interest should be reviewed for an abuse of discretion because the award of prejudgment interest was discretionary under Civil Code section 3287, subdivision (b).
All further statutory references are to the Civil Code, unless otherwise stated.
As for the attorney fee issue, neither party cites any authority relating to the standard of review. PES argues that the court abused its discretion when it denied the attorney fees request. It also contends the court’s decision was “wrong as a matter of law.” Infoseek suggests the abuse of discretion standard applies.
We begin by acknowledging the limited scope of a court’s review of arbitration awards. “When parties choose to forgo the traditional court system and arbitrate their claims, it is assumed they wish to have a final and conclusive resolution of their dispute. The Legislature has recognized this underlying assumption of finality and has, by statute, limited the grounds for judicial review of an arbitrator’s award. (Code Civ. Proc, § 1286.2.) Consistent with this legislative intent, [our State Supreme Court has] recognized the general rule that ‘an arbitrator’s decision cannot be reviewed for errors of fact or law.’ ” (Aguilar v. Lerner (2004) 32 Cal.4th 974, 981-982, citing Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 11.) “Under Moncharsh, we cannot review the merits of the controversy, the arbitrator’s reasoning, or the sufficiency of the evidence supporting the award. [Citation.] Even ‘an error of law apparent on the face of the award that causes substantial injustice does not provide grounds for judicial review.’ ” (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 23 (Pierotti).)
PES has not asked us to review any alleged errors in the arbitrator’s award or the arbitration proceedings. Instead, it alleges the trial court erred in denying its requests for postaward interest and postaward attorney fees in the postarbitration proceedings in the trial court. With regard to the standard of review in such cases, one court has stated: “In reviewing a judgment confirming an arbitration award, we must accept the trial court’s findings of fact if substantial evidence supports them, and we must draw every reasonable inference to support the award.” (Pierotti, supra, 81 Cal.App.4th at p. 24.) To the extent the court’s order applied legal rules to undisputed facts or involved the interpretation of a contract or writing, it is subject to this court’s independent review. (Parsons v. Bristol Development Corp. (1965) 62 Cal.2d 861, 865-866 [interpretation of writings]; Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888 [application of legal rules to undisputed facts].)
The determination of the legal basis for an attorney fee award is a question of law, which is reviewed de novo. (Connerly v. State Personnel Board (2006) 37 Cal.4th 1169, 1175.) The amount of statutory or contractual attorney fees to be awarded is reviewed for an abuse of discretion. (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1094-1095 (PLCM).)
II. Interest
PES contends the trial court erred when it failed to award PES interest from the date of the arbitration award to the date of the judgment (postaward, prejudgment interest) pursuant to section 3287, subdivision (a). It contends that the postaward, prejudgment interest accrued as a matter of law and that Infoseek could have avoided liability for such interest by paying the arbitration award.
Infoseek argues that PES is not entitled to postaward, prejudgment interest because the interest authorized by section 3287, subdivision (a) only applies to liquidated contract damages claims and PES’s claim was unliquidated. It contends the amounts due under the arbitration award were unliquidated because the court retained jurisdiction over the issue of costs and PES’s damages were neither certain nor capable of being made certain.
Any party to an arbitration may petition the court to confirm, correct or vacate the arbitrator’s award. (Code Civ. Proc., § 1285.) In response, the opposing party may ask the court to “dismiss the petition or to confirm, correct or vacate the award.” (Code Civ. Proc., § 1285.2.) Upon the service and filing of such petitions or responses, the court “shall confirm the award as made,” unless “it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding.” (Code Civ. Proc., § 1286.) An arbitration “award that has not been confirmed or vacated has the same force and effect as a contract in writing between the parties to the arbitration.” (Code Civ. Proc., § 1287.6) Once the award is confirmed, the judgment entered thereon has the same force as any other civil judgment and may be enforced accordingly. (Code Civ. Proc., § 1287.4.)
Any request to correct or vacate an arbitration award must be made within 100 days of service of the award. (Code Civ. Proc., § 1288.) But any party to the arbitration has four years to petition the court to confirm an award. (Ibid.)
In this case, the arbitrator served the Final Award on or about April 11, 2005. PES filed its petition to confirm the award on January 9, 2006, well after the 100-day deadline for a petition to vacate or correct the award had passed, but within the four-year period authorized by the statute for a petition to confirm an award. Thus, the trial court was empowered to confirm the award or dismiss the proceeding, but could not vacate or correct the award.
In its petition to confirm the arbitration award, PES asked the court to award interest from April 11, 2005, until the date the trial court issued its judgment confirming the award. The court denied the request for interest on the ground that the motion to enforce the award was unnecessary.
Section 3287 provides for the recovery of prejudgment interest on damages. “The purpose of prejudgment interest is to compensate plaintiff for loss of use of his or her property.” (Segura v. McBride (1992) 5 Cal.App.4th 1028, 1041.) Subdivision (a) of section 3287 addresses the award of interest on liquidated claims. It provides in pertinent part: “Every person who is entitled to recover damages certain, or capable of being made certain by calculation, and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day….” “In an action on a contractual obligation, a party is entitled to prejudgment interest under this provision ‘as a matter of right.’ ” (Pierotti, supra, 81 Cal.App.4th at p. 27.) “Under section 3287, subdivision (a) the court has no discretion, but must award prejudgment interest upon request, from the first day there exists both a breach and a liquidated claim.” (North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824, 828 (North Oakland).)
Section 3287, subdivision (b), addresses the award of interest on unliquidated contract claims. It provides: “Every person who is entitled under any judgment to receive damages based upon a cause of action in contract where the claim was unliquidated, may also recover interest thereon from a date prior to the entry of judgment as the court may, in its discretion, fix, but in no event earlier than the date the action was filed.” “Under section 3287, subdivision (b) the court has discretion to decide whether prejudgment interest should be awarded on an unliquidated contractual claim. It is up to the judge to determine the date from which interest runs, but in no event may the court fix a date earlier than the filing of the action.” (North Oakland, supra, 65 Cal.App.4th at p. 829.)
PES claims postaward, prejudgment interest pursuant to the mandatory provision in section 3287, subdivision (a) and cases that have applied that provision to arbitration awards.
In Britz, Inc. v. Alfa-Laval Food & Dairy Co. (1995) 34 Cal.App.4th 1085 (Britz), the court held that a successful party to an arbitration is entitled to “ ‘recover damages certain’ ” within the meaning of section 3287, subdivision (a) on the date the arbitrator renders his or her award and is therefore entitled to postaward, prejudgment interest under section 3287, subdivision (a). (Id. at p. 1106.) The court reasoned that “[t]he arbitration award itself result[s] in a new and fixed liability [citation]. Regardless of the individual elements that comprised that liability, respondents were entitled to payment of the fixed sum upon issuance of the award. [¶] … Although the interest was pre-‘judicial judgment,’ it was post-‘contractual judgment.’ ” (Id. at p. 1107.) The court stated that any result that denied the party who had prevailed at arbitration postaward interest would punish the party for using arbitration instead of the court system to resolve its dispute. (Ibid.)
In Pierotti, supra, 81 Cal.App.4th at pages 26-28, the party who prevailed at arbitration filed a petition to confirm the arbitration award and asked the court for interest from the time the arbitrator issued the award to the time the trial court issued its judgment confirming the award. The trial court granted the petition to confirm the arbitration award, but did not award the interest. On appeal, the court concluded that the trial court had erred, that Britz was controlling, and that the trial court was required to award postaward, prejudgment interest. (Id. at p. 27.) The court rejected the contention that the arbitrator had specifically denied the prevailing party’s request for postaward, prejudgment interest. The court observed that the prevailing party first requested this type of interest in his petition to confirm the arbitration award and that the issue before the arbitrator was preaward interest, not postaward, prejudgment interest. (Id. at pp. 27-28.)
Infoseek acknowledges that the recovery of prejudgment interest is mandatory under section 3287, subdivision (a) in cases involving liquidated damages claims. But it contends that PES’s damages were unliquidated and thus subject to the discretionary provision in section 3287, subdivision (b). It argues the court did not abuse its discretion in denying interest under that provision.
Since the arbitration award was unconfirmed prior to entry of judgment and was not subject to being corrected, we review the award de novo to determine whether it states a claim for liquidated or unliquidated damages since an unconfirmed arbitration award has the same force and effect as a contract (Code Civ. Proc., § 1287.6).
Infoseek asserts the damages set forth in the Final Award were unliquidated because the “award did not specify a fixed, determinable sum as the arbitrator expressly reserved jurisdiction to address the issue of costs.” Infoseek asserts PES failed to disclose its costs and it was therefore impossible for Infoseek to calculate the amount owed. We disagree and conclude that the damages set forth in the Final Award were liquidated.
“ ‘Damages are deemed certain or capable of being made certain within the provisions of subdivision (a) of section 3287 where there is essentially no dispute between the parties concerning the basis of computation of damages if any are recoverable but where their dispute centers on the issue of liability giving rise to damage.’ [Citation.] … [S]ection 3287 mandates an award of prejudgment interest where ‘ “the amount of the plaintiff’s claim” ’ can be determined by established market values or by computation. [Citation.] Thus, it is clear that … section 3287 looks to the certainty of the damages suffered by the plaintiff, rather than to a defendant’s ultimate liability, in determining whether prejudgment interest is mandated. An award of prejudgment interest is intended to make the plaintiff whole ‘for the accrual of wealth which could have been produced during the period of loss.’ ” (Wisper Corp. v. California Commerce Bank (1996) 49 Cal.App.4th 948, 958 (Wisper).) The test for recovery of prejudgment interest under section 3287, subdivision (a) is whether defendant actually knows the amount owed or from reasonably available information could have computed the amount owed. (Wisper, at p. 960.) Section 3287 does not authorize prejudgment interest “ ‘where the amount of damage, as opposed to the determination of liability, “depends upon a judicial determination based upon conflicting evidence and is not ascertainable from truthful data supplied by the claimant to his debtor.” [Citations.]’ [Citation.] Thus, where the amount of damages cannot be resolved except by verdict or judgment, prejudgment interest is not appropriate.” (Wisper,p. 960.)
“ ‘[W]here there is a large discrepancy between the amount of damages demanded in the complaint and the size of the eventual award, that fact militates against a finding of the certainty mandated by [section 3287].’ Conversely, where there is no significant disparity between the amount claimed in the complaint and the final judgment, this factor generally tends to show that damages were certain or capable of calculation.” (Wisper, supra, 49 Cal.App.4th at p. 961.)
The Final Award awarded PES specific dollar amounts for contract damages ($91,659), pre-award interest ($74,339), attorney fees ($36,664), and arbitration expenses ($4,847.50) for a total award of $207,509.50. The amounts awarded as contract damages and interest were based on the parties’ March 9, 2005 stipulation. As of that date, there was no dispute with regard to those figures. Although PES later tried to persuade the arbitrator to increase the amount awarded for the pre-award interest to cover the period from January 2005 until April 11, 2005, the arbitrator denied the request and relied on the parties’ stipulation regarding the amount of the interest. Neither PES nor Infoseek petitioned the court to vacate or correct the amounts awarded by the arbitrator within 100 days of service of the award. The amounts were therefore final and not subject to correction by the trial court. Finally, the trial court entered judgment for the exact amount the arbitrator awarded in her Final Award.
In its petition and its motion to confirm the arbitration award, PES asked for additional arbitration costs, over and above the $4,847.50 awarded by the arbitrator. If the amount the arbitrator awarded in arbitration costs was too low, it was incumbent upon PES to ask the arbitrator to modify the award or file a timely petition to correct the award with the court. It did neither. PES has not appealed the court’s failure to award the additional arbitration costs.
For all these reasons, we conclude the damages awarded in the arbitration award were liquidated and there is no merit to Infoseek’s contention that the damages pursuant to the arbitration award were unliquidated. In our view, Britz controls this case and the court erred when it failed to award PES postaward, prejudgment interest under section 3287, subdivision (a). We shall therefore remand the matter to the trial court for further proceedings to determine the amount of postaward, prejudgment interest to be awarded.
III. Attorney Fees
PES contends it was entitled to attorney fees and costs for the postarbitration proceedings in the trial court pursuant to the attorney fees clause in the Agreement and Code of Civil Procedure section 1293.2. It contends the court had no discretion to invoke equitable considerations to deny costs and fees.
Infoseek contends PES was not entitled to attorney fees and costs because it was not the prevailing party in the postarbitration judicial proceedings. It argues that although the court “routinely” confirmed the arbitration award, it denied PES the “real relief” it sought: prejudgment interest. Infoseek also argues that the order denying fees and costs should be upheld because PES failed to provide an adequate evidentiary basis for its fees claim. PES has not responded to the latter contention.
A court must award costs in a judicial proceeding to confirm, correct, or vacate an arbitration award. (Code Civ. Proc., § 1293.2; Carole Ring & Associates v. Nicastro (2001) 87 Cal.App.4th 253, 260.) Attorney fees are recoverable as costs if authorized by contract. (Code Civ. Proc., § 1033.5, subd. (a)(10)(A).) The award of costs pursuant to Code of Civil Procedure section 1293.2, including attorney fees authorized by contract, is mandatory. (Corona v. Amherst Partners (2003) 107 Cal.App.4th 701, 707; Carole Ring, at p. 260.)
The “determination under Code of Civil Procedure section 1293.2 which party, if either, is the prevailing party in postarbitration proceedings is a judicial function distinct from the arbitrator’s decision to award or not to award fees in the arbitration proceeding itself.” (Marcus & Millichap Real Estate Investment Brokerage Co. v. Woodman Investment Group (2005) 129 Cal.App.4th 508, 513.) “[Code of Civil Procedure] section 1293.2 itself, requires postarbitration judicial proceedings to be considered a discrete ‘legal proceeding’ for purposes of determining a party’s right to an award of attorney fees.” (Id. at p. 516.)
The attorney fees clause in the Agreement provided: “In the event of any proceeding relating to this Agreement, the prevailing party shall be entitled to recover from the other party reasonable attorney’s fees, out of pocket costs….” (Italics added.) Thus, the Agreement specifically provided for an award of costs in the postarbitration proceedings in the trial court. Moreover, PES was the prevailing party in the postarbitration proceedings. It obtained an order confirming the arbitration award and entry of judgment based on that order. As we have held, PES was also entitled to postaward, prejudgment interest. As set forth above, under these circumstances, an award of costs, including PES’s contract attorney fees, was mandatory.
We turn next to Infoseek’s contention that the court properly denied attorney fees because PES failed to provide an adequate evidentiary basis for its fees claim. As noted before, the size of an attorney fee award is within the sound discretion of the trial court. We review the amount of attorney fees awarded under the abuse of discretion standard. (PLCM, supra, 22 Cal.4th at p. 1095.)
In its motion to confirm the arbitration award, PES claimed $16,909.16 in attorney fees for postaward activities, which was 40 percent of the amount it claimed for postaward, prejudgment interest. The record did not contain any evidence regarding the amount of time PES’s counsel spent on postaward legal work or a reasonable hourly rate for comparable work in the community. PES relied solely on its 40 percent contingency agreement.
“In awarding a reasonable fee, a court may consider a contingent fee agreement, but the agreement ‘ “is neither the sole factor nor a factor to be given any greater weight than any other….” … The contract is some evidence of the value of an attorney’s services, but as with other items of evidence, it is not controlling.’ ” (Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265, 1296.) “ ‘ “The starting point for every fee award, once it is recognized that the court’s role in equity is to provide just compensation for the attorney, must be a calculation of the attorney’s services in terms of the time he [or she] has expended on the case. Anchoring the analysis to this concept is the only way of approaching the problem that can claim objectivity, a claim which is obviously vital to the prestige of the bar and the courts.” ’ ” (Id. at p. 1297, citing Serrano v. Priest (1977) 20 Cal.3d 25, 48, fn. 23.) Other factors the court may consider include “ ‘the nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure, and other circumstances in the case.’ ” (PLCM, supra, 22 Cal.4th at p. 1096.)
The court did not make any findings regarding the reasonableness of PES’s attorney fees claim. At the hearing on the motion to confirm the award, the court stated: “It seems to me it is an unnecessary motion….” In its order on the motion, the court denied PES’s request for attorney fees and interest “because there was no need to incur these expenses.” For the following reasons, we disagree with that conclusion.
An arbitration award is not directly enforceable. Until confirmed or vacated in court proceedings, it has no more force or effect than a contract between the parties. (Code Civ. Proc., § 1287.6.) Code of Civil Procedure section 1285 provides that as matter of right any party to an arbitration may petition the court to confirm, vacate or correct the award. Unless the court corrects or vacates the award or dismisses the proceeding, the court must confirm the award. (Code Civ. Proc., § 1286.) All arbitration awards, including awards that have been satisfied, are subject to confirmation. (Pacific Law Group: USA v. Gibson (1992) 6 Cal.App.4th 577, 580.) PES waited almost nine months after the arbitrator issued her award to petition the court to confirm the award and one year after the award to file the motion to confirm the award. During that time, Infoseek did not pay the award. Since PES was entitled to confirm the award, we conclude the court abused its discretion when it determined the motion was unnecessary and denied attorney fees in their entirety for that reason.
Pursuant to the statutory scheme, PES is entitled to recover the costs it incurred in the postaward judicial proceedings, which include reasonable attorney fees. Since the trial court denied postaward costs and attorney fees in their entirety and did not make a determination regarding the reasonableness of the postaward attorney fees claimed here, we shall remand the matter for further proceedings on the issue of the amount of postaward costs and attorney fees to be awarded.
DISPOSITION
The judgment confirming the arbitration award is reversed and the matter is remanded to the trial court to conduct further judicial proceedings regarding the amounts to be awarded as: (1) postaward, prejudgment interest and (2) postaward costs, including reasonable attorney fees for postaward services. Thereafter, the court shall enter a new judgment confirming the arbitration award and awarding said interest, attorney fees, and costs.
WE CONCUR Bamattre-Manoukian, Acting P.J., Duffy, J.