A very interesting opinion was recently published by the Second District Court of Appeal in Acosta v. Kerrigan, affirming an order awarding interim attorney fees in connection with his successful petition to compel arbitration of a dispute between the parties arising under a lease agreement and denying a petition to compel arbitration of the actual request for those same attorney fees. Acosta and Kerrigan had a lease agreement that including an arbitration clause and the following fee-shifting provision regarding petitions to compel arbitration:
Should any party to this Agreement hereafter institute any legal action or administrative proceeding against the other by any method other than arbitration, the responding party shall be entitled to recover from the initiating party all damages, costs, expenses and attorneys' fees incurred as a result of such action.
We've been seeing more and more of these. For now, at least, they are enforceable. In all likelihood, under Civil Code section 1717, a losing petitioner would also be on the hook for fees if the trial court found the arbitration agreement to be unenforceable, but that is another case for another day. We recently filed an opposition to an arbitration agreement in which our opposition prayed for interim fees under an identical fee-shifting provision, and the petitioner took the petition off calendar.