Arbitration/Fees/Settlement: Sixth District Holds That Party May Ask Arbitrator For Attorney's Fees Based On Section 998 Settlement Offer, After The Arbitrator Has Ruled On The Merits

The Case Is Heimlich v. Shivji, Case No. H042641 (6^th Dist. May 31, 2017).  

     Ordinarily, a prevailing party's request for fees and costs in an arbitration is presented to the arbitrator, before an award is rendered, unless the arbitrator and the parties agree to address fees and costs after an interim award is made.  But what if the arbitrator has already rendered a final award, and the basis for the fees/cost request is a Cal. Code of Civ. Proc. section 998 procedure, allowing the prevailing party to seek fees/costs?  In the ordinary situation, the trier of fact doesn't even know that a section 998 offer has been made until after a party has prevailed and seeks costs and fees based on that provision.  Here, the arbitrator believed that the arbitrator's jurisdiction to rule on the request had expired after the arbitrator's final award had been made.  Not so, ruled the Court of Appeal, in an interesting disposition of the matter:

The court is directed to enter an order partially vacating the award and, with the parties’ consent, to order a hearing on Client’s request for section 998 costs before the same arbitrator so that the arbitrator may make an additional award. If the parties do not consent or the arbitrator again refuses to reach the merits of the section 998 request, the court shall hear and determine Client’s request for section 998 costs.