Filed 6/24/14 Cellphone Termination Fee Cases CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE




CELLPHONE TERMINATION FEE                                                   A138424
CASES.
                                                                            (Alameda County
                                                                            Super. Ct. No. RG03121510
___________________________________/                                        JCCP No. 4332)

         In Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 Cal.App.4th 515
(Frog Creek) we held that under Civil Code section 1717, there may be only one
prevailing party on a given contract in a given lawsuit. (Id. at p. 520.) We therefore
reversed an award of attorney fees to a party that had defeated a petition to compel
arbitration filed in a pending contract action, because the opposing party was later found
to have recovered the greater relief on the contract. (Id. at pp. 520, 523.) We held that a
party that prevails on a petition to compel arbitration is not entitled to attorney fees under
Civil Code section 1717 where that party is not also the prevailing party on the merits of
the underlying lawsuit’s contract claims. (Id. at p. 520.)
         This appeal requires us to apply Frog Creek’s reasoning to a slightly different
factual scenario. In this case, appellant Sprint Spectrum, L.P. (Sprint) filed a petition to
compel arbitration in an existing civil action initiated by plaintiffs/respondents.1


1
 The respondents in this case are Ramzy Ayyad, Jeweldean Hull, Christine Morton,
Angela Rel, Richard Samko, and Amand Selby. We refer to them collectively as
Plaintiffs.

                                                             1
Plaintiffs successfully opposed Sprint’s petition to compel arbitration and later moved for
an award of attorney fees under Civil Code section 1717 and Code of Civil Procedure
section 1021.5 (section 1021.5), although the trial court had not yet fully resolved the
parties’ contractual claims. Unlike Frog Creek, here, when the trial court awarded fees, it
had yet to determine who was “the party prevailing on the contract” for purposes of Civil
Code section 1717.2 Nevertheless, the court granted Plaintiffs’ request for the attorney
fees incurred in resisting Sprint’s petition to compel arbitration on the ground that the
proceedings on the petition were a separate and distinct special proceeding within the
underlying action.
       Sprint appeals from the trial court’s order awarding attorney fees, arguing the
award must be reversed as premature. Sprint contends any award of attorney fees must
await the trial court’s final resolution of the merits so that there can be a proper prevailing
party determination under Civil Code section 1717.
       Frog Creek makes clear the proceedings on Sprint’s petition to compel arbitration
were part of the underlying action and were not a distinct special proceeding. We
therefore agree with Sprint that the trial court must resolve the merits of the underlying
contractual claims before it may award attorney fees under Civil Code section 1717.
Moreover, since the trial court expressly found an interim fee award under section 1021.5
would be inappropriate at this time, its order cannot be sustained under that statute either.
Accordingly, we will reverse.
                        FACTUAL AND PROCEDURAL BACKGROUND
       We set out the facts and procedural history of this case in some detail in our prior
opinions in Ayyad v. Sprint Spectrum, L.P. (2012) 210 Cal.App.4th 851 (Ayyad) and
Cellphone Termination Fee Cases (2011) 193 Cal.App.4th 298. We refer the reader to
those opinions for a full description of the facts. We limit our statement here to those
matters necessary for an understanding of the issues presented by the current appeal.

2
  Save in circumstances not present here, under Civil Code section 1717,
subdivision (b)(1), “the party prevailing on the contract shall be the party who recovered
a greater relief in the action on the contract.”

                                              2
       A Brief History of the Litigation
       This case was initially filed in July 2003 against Sprint and other providers of
cellular telephone service. The operative third consolidated amended complaint was filed
as “a class action . . . by current and/or former customers of wireless telephone services.”
The complaint alleged that “[P]laintiffs and the members of the class are individual
consumers who either are or, during the period extending from four years prior to the
filing of this action to the present, were subscribers to [Sprint’s] wireless telephone
service agreements that include an early termination fee [ETF] provision . . . .” Based on
a number of statutory and common law theories, Plaintiffs claimed Sprint charged them
unlawful ETFs for cancelling their cellular customer service agreements prior to the
expiration date specified in their contracts.
       By order of the Judicial Council, this action and others were designated Judicial
Council Coordinated Proceeding No. 4332 before a judge in Alameda County Superior
Court. (Cellphone Termination Fee Cases, supra, 193 Cal.App.4th at pp. 303 & fn. 4,
304.) On June 9, 2006, the trial court certified a plaintiff class consisting of: “ ‘All
persons who (1) had a wireless telephone personal account with [Sprint] with a California
area code and a California billing address[ ], who (2) cancelled the account at any time
from July 23, 1999, through [March 18, 2007], and (3) were charged an early termination
fee in connection with that cancellation.’ ”
       Sprint filed an answer to the operative complaint setting forth numerous
affirmative defenses, including arbitrability and setoff. It also filed a cross-complaint for
breach of contract against Plaintiffs, and it requested a return of the alleged benefits
conferred by Sprint in the event the court found the ETFs unenforceable.
       The class claims against Sprint and Sprint’s cross-claims and setoff defense were
tried in May 2008. (See Cellphone Termination Fee Cases, supra, 193 Cal.App.4th at
pp. 305, 307-308.) Plaintiffs prevailed on several statutory and common law claims. (Id.
at p. 308.) The jury found Plaintiffs were entitled to recover damages against Sprint, but
it also found Plaintiffs had breached their contracts with the carrier, thus entitling Sprint
to an amount of damages exceeding those Plaintiffs had recovered. (Id. at p. 307.) The


                                                3
trial court then granted Plaintiffs’ motion for a new trial on Sprint’s cross-claims and on
the court’s calculation of the setoff. (Id. at p. 309.)
       Both Plaintiffs and Sprint then filed appeals. (Cellphone Termination Fee Cases,
supra, 193 Cal.App.4th at p. 309.) On March 3, 2011, we issued our opinion in
Cellphone Termination Fee Cases, affirming the trial court “in all respects.” (Id. at
pp. 303, 330.) In our disposition, we remanded the case to the trial court “for retrial on
the issue of Sprint’s damages, and the calculation of any offset to which Sprint may be
entitled.” (Id. at p. 330.)
       After remand, Sprint moved to compel individual bilateral arbitration of the named
Plaintiffs’ claims.3 The trial court denied the petition on November 14, 2011. Its
principal ground for denial was that our opinion in Cellphone Termination Fee Cases had
limited the issues on remand to retrial of Sprint’s damages and calculation of any setoff
to which Sprint might be entitled. (Cellphone Termination Fee Cases, supra, 193
Cal.App.4th at p. 330.) Sprint appealed from the portions of the November 14, 2011
order denying its petition to compel arbitration. On December 16, 2011, the trial court
stayed all proceedings pending the outcome of that appeal.
       The Fee Award for the Proceedings on Sprint’s Petition to Compel Arbitration
       Several months later, Plaintiffs filed a motion for attorney fees and costs for
having successfully opposed Sprint’s petition to compel arbitration in the trial court.
They argued Sprint’s petition to compel arbitration had commenced a “‘special
proceeding’” which terminated in their favor when the trial court denied the petition on
November 14, 2011. After a hearing, the trial court granted Plaintiffs’ request for fees
and costs in a written order dated September 26, 2012.




3
 Sprint styled its request for arbitration as a “motion” rather than a “petition.” For the
sake of clarity, however, we will follow the statutory nomenclature and refer to it as a
petition in this opinion. (See Frog Creek, supra, 206 Cal.App.4th at pp. 521-522, fn. 4,
citing Code Civ. Proc., §§ 1281.2, 1292.4.)

                                               4
          In granting Plaintiffs’ request, the trial court ruled on a number of questions.4 It
first determined that Plaintiffs’ motion was not filed too early. It then decided Plaintiffs
were entitled to fees under both Civil Code section 1717 and section 1021.5. With regard
to the latter statute, the court noted Sprint’s cross-claims had yet to be retried, and
therefore it “expressly [did] not hold that the class has ‘prevailed’ on the merits of the
action as a whole.” It nevertheless rejected Sprint’s argument that fees were unavailable
under section 1021.5 because, Sprint asserted, that statute permits awards only to a
“successful party” in an “action.” (§ 1021.5 [“a court may award attorneys’ fees to a
successful party against one or more opposing parties in any action which has resulted in
the enforcement of an important right affecting the public interest . . . .” (italics added)].)
The trial court concluded section 1021.5 applies to special proceedings, and Plaintiffs had
prevailed in a such a special proceeding by successfully opposing Sprint’s petition to
compel arbitration. Both Plaintiffs and Sprint appealed from the September 26, 2012
order.5


4
  In making these rulings, the court relied upon the reasoning of an order it had entered on
July 9, 2012, awarding fees against AT&T Mobility LLC in another portion of the
coordinated proceeding. That order addressed “whether a petition to compel arbitration
that is filed in an ongoing lawsuit is a separate proceeding for all purposes and, if only for
some purposes, for what purposes.” In answering that question, the trial court chose to
follow the reasoning of Benjamin, Weill & Mazer v. Kors (2011) 195 Cal.App.4th 40
(Kors), an opinion issued by Division Two of this appellate district, which the lower
court construed as “hold[ing] that a petition to compel arbitration is a separate proceeding
for purposes of identifying the prevailing party and awarding fees to the prevailing
party.” The trial court acknowledged we had reached a contrary conclusion in Frog
Creek, but given the conflict in the decisions of the Court of Appeal, it chose to follow
what it believed to be the better rule. In its view, “the statutory scheme strongly suggests
that petitions to compel arbitration are analytically distinct special proceedings that are
nestled within actions, but not subsumed by the actions.” The trial court opined that Kors
was more persuasive than Frog Creek because, in the lower court’s view, Frog Creek
improperly focused its analysis on Civil Code section 1717, a statute of general
application, while failing to give adequate consideration to the specific statutory scheme
regarding petitions to compel arbitration.
5
  That appeal is before this division in case No. A136818. Our decision in that case
reverses the trial court’s September 26, 2012 award of attorney fees to Plaintiffs.

                                                 5
       On October 29, 2012, we filed our opinion in Ayyad, supra, 210 Cal.App.4th 851.
We held the trial court had correctly denied Sprint’s motion to compel arbitration on the
ground that our disposition in Cellphone Termination Fee Cases limited the court’s
jurisdiction on remand to the issues of Sprint’s damages and calculation of any setoff.
(Ayyad, at pp. 860-864.) After Sprint unsuccessfully sought review of our decision in the
California Supreme Court, we issued our remittitur.
       The Attorney Fee Award for the Appellate Proceedings in Ayyad
       Plaintiffs then moved for a supplemental award of attorney fees for the appellate
proceedings in Ayyad. On April 2, 2013, the trial court awarded Plaintiffs an additional
$244,462.50 in fees. In making the award of additional fees, the court relied on the
reasoning of its July 9, 2011 and September 26, 2012 orders.
       The trial court first ruled it would not stay Plaintiffs’ motion for fees related to
Sprint’s petition to compel arbitration pending resolution of the underlying class ETF
claims against Sprint. According to the court, “[t]he fees at issue are based on Plaintiffs’
status as prevailing parties in the special proceeding to compel arbitration, not the action
on the merits.” Adhering to the reasoning expressed in its July 9, 2012 order (see note 4,
ante), the trial court stated, “When a petition to compel arbitration is filed as a pleading in
an existing action the petition commences an analytically distinct special proceeding that
is nestled within the action, but not subsumed by the action.” Accordingly, as the
prevailing parties in that special proceeding, the Plaintiffs could “seek an award of fees
related to that special proceeding without regard to whether [they] might ultimately
prevail on the merits of the substantive claims.”
       The trial court next noted it was not dealing with “a motion for interim award of
attorneys fees before the conclusion of an action.” Although the court concluded such
interim awards are permitted under section 1021.5, it explained it would not make such
an award “at this time” based on the facts of the case. The trial court explained that while
Plaintiffs had prevailed on their class claims against Sprint, Sprint’s cross-claims against
the class had yet to be tried, and the court had yet to determine how those amounts would



                                               6
be set off. Since the amount of Plaintiffs’ monetary relief was not secure, the court
declined to award interim fees under section 1021.5.
       Citing its September 26, 2012 order, the court ruled Plaintiffs were entitled to fees
under the contractual fee shifting provision in Sprint’s customer agreements. In addition,
Plaintiffs were entitled to an award under section 1021.5 because that statute “applies
equally to actions and special proceedings.”
       Sprint filed a notice of appeal from the April 2, 2013 order.6 Plaintiffs did not
appeal.
                                         DISCUSSION
       Sprint raises a number of challenges to the trial court’s attorney fee award,
contesting Plaintiffs’ current entitlement to fees as well as the amount of the fees
awarded. We conclude we need reach only Sprint’s first argument—that the trial court
erred in finding Plaintiffs’ motion for fees was not premature.
       The trial court’s determination of the legal basis for an attorney fee award is a
question of law we review de novo. (Frog Creek, supra, 206 Cal.App.4th at p. 523.) As
we explain, Civil Code section 1717 does not permit Plaintiffs to recover attorney fees
for successfully resisting Sprint’s petition to compel arbitration prior to the trial court’s
resolution of the merits of the parties’ contractual claims. The proceedings on Sprint’s
petition were merely part of the underlying action and were not a distinct special
proceeding. For that same reason, the trial court’s award under section 1021.5 cannot be
sustained on the ground articulated by the lower court. And since the court expressly
declined to make an interim award of fees under section 1021.5, we have no occasion to
address whether such an award would be proper in these circumstances.




6
 An order requiring payment of attorney fees “is appealable as a final determination of a
collateral matter distinct and severable from the general subject of the litigation.”
(Lachkar v. Lachkar (1986) 182 Cal.App.3d 641, 645, fn. 1.)

                                               7
I.     The Attorney Fee Award Is Premature Under Civil Code Section 1717 Because the
       Trial Court Had Not Resolved the Merits of the Underlying Action.
       The key issue before us is whether Plaintiffs may be awarded attorney fees under
Civil Code section 1717 before the trial court resolves the merits of the parties’
contractual claims. As we shall demonstrate, Frog Creek, supra, 206 Cal.App.4th 515
precludes an attorney fee award under Civil Code section 1717 at this stage of the
litigation. In addition, as we explain in part II, post, because the trial court based its
award under section 1021.5 on the faulty premise that Plaintiffs were the successful
parties in a special proceeding, the latter statute also provides no support for the award.
       Because the reasoning of Frog Creek is central to our decision in this appeal, we
set forth the facts and holdings of that case in some detail. We will then apply the
analysis of Frog Creek to the present case.
       A.     The Decision in Frog Creek.
       In Frog Creek, supra, 206 Cal.App.4th 515, plaintiff Frog Creek Partners, LLC
(Frog Creek) filed an action for breach of contract against the defendant, Vance Brown,
Inc. (Brown). (Id. at p. 521.) Brown then filed a petition to compel arbitration in Frog
Creek’s action for breach of contract. (Ibid.) The trial court denied the petition when
Brown was unable to produce a version of the contract with an arbitration provision, a
decision we affirmed in the first appeal arising from the action. (Id. at pp. 520, fn. 2,
521-522.) Following remand, Brown renewed its petition to compel after it located
another contract. (Id. at p. 522.) The trial court denied the petition, but in the second
appeal, we reversed and ordered arbitration. (Id. at pp. 520, fn. 2, 522.) Brown then
prevailed in the arbitration, but the arbitrators declined to rule on the parties’ entitlement
to attorney fees in connection with the legal proceedings that preceded the arbitration.
(Ibid.) The parties then filed cross-motions under Civil Code section 1717 in the trial
court, with Brown seeking all of its prearbitration attorney fees and Frog Creek seeking
the fees incurred in defeating the initial petition to compel. (Id. at p. 523.) The trial court
determined Brown was the prevailing party in the arbitration and awarded Brown
attorney fees. (Ibid.) It also awarded Frog Creek the fees it sought, reasoning Frog


                                               8
Creek was the prevailing party on the initial petition to compel arbitration and in the first
appeal. (Ibid.)
       We reversed the award of attorney fees to Frog Creek. (Frog Creek, supra, 206
Cal.App.4th at pp. 547-548.) In the course of our opinion, we analyzed both the language
and legislative history of Civil Code section 1717 as well as the statutory and case law
related to attorney fee awards in disputes over arbitrability. (Id. at pp. 525-538.) That
analysis contains several points relevant here. First, we concluded that where attorney
fees are sought under Civil Code section 1717, “there may only be one prevailing party
entitled to attorney fees on a given contract in a given lawsuit.” (Id. at p. 520, fn.
omitted.) The prevailing party for purposes of the fee award is “the party who obtains
greater relief on the contract action . . . , regardless of whether another party also obtained
lesser relief on the contract or greater relief on noncontractual claims.” (Id. at p. 531.)
Consistent with this principle, we held “the trial court erred in awarding Frog Creek
attorney fees under Civil Code section 1717 for prevailing on the first petition to compel
arbitration because Brown prevailed on the contract action overall; the Legislature did not
intend to authorize multiple attorney fees awards to multiple prevailing parties on a single
contract in a given lawsuit.” (Id. at p. 546.) Thus, an award of attorney fees to a party
who defeats a petition to compel arbitration filed in a pending action is “ ‘premature’ ”
where the merits of the contractual claims have yet to be resolved. (See id. at p. 520.)
       Second, we expressly disagreed with the reasoning of Kors, supra, 195
Cal.App.4th 40. (Frog Creek, supra, 206 Cal.App.4th at p. 536.) In particular, we
rejected Kors’s implication “that a petition to compel arbitration filed in a pending
lawsuit constitutes a ‘discrete action’ providing a basis for a Civil Code section 1717
attorney fee award, even though that could result in multiple prevailing parties on one
contract in a given lawsuit.” (Frog Creek, supra, 206 Cal.App.4th at p. 537.) We
concluded neither the legislative history of the statute nor case law supported such an
interpretation. (Ibid.)
       Third, while we recognized petitions to compel arbitration have distinctive
characteristics that might arguably justify treating attorney fee requests related to such


                                              9
petitions differently from requests related to other proceedings, we found those
distinctions insufficient “to justify treating a petition to compel arbitration filed in a
pending lawsuit as a distinct action on the contract under Civil Code section 1717.”
(Frog Creek, supra, 206 Cal.App.4th at p. 537.) We explained that the Legislature could
have authorized fee awards on such petitions, as it had in other contexts, but had not done
so. (Id. at pp. 537-538.) In addition, even though petitions to compel arbitration are
independent of other contract claims in the lawsuit, they are no different from cross-
complaints in this respect, and courts may not award attorney fees under Civil Code
section 1717 to one party for prevailing on a complaint and another for prevailing on a
cross-complaint arising under the same contract. (Id. at p. 538.)
       Finally, we rejected the notion that specific contract language could justify a
separate attorney fee award. (Frog Creek, supra, 206 Cal.App.4th at pp. 544-546.)
Because one of the Legislature’s purposes in enacting Civil Code section 1717 was to
create a uniform treatment of fee recoveries in actions on contracts containing attorney
fee provisions, “ ‘[a] holding that in contract actions there is still a separate contractual
right to recover fees that is not governed by [Civil Code] section 1717 would be contrary
to this legislative intent.’ ” (Id. at p. 545, quoting Santisas v. Goodin (1998) 17 Cal.4th
599, 616.)
       B.     The Litigation Surrounding Sprint’s Petition Was Not a Special Proceeding
              Separate from the Underlying Action.
       Applying Frog Creek’s analysis to the case before us, it is apparent the trial court
erred in awarding Plaintiffs attorney fees under Civil Code section 1717 at this juncture.
Contrary to the trial court’s view of the issue, Sprint’s petition to compel arbitration did
not “commence[] an analytically distinct special proceeding . . . nestled within the
action[.]” As our colleagues in Division Three recently put it, “[a] petition to compel
arbitration filed in a pending lawsuit is ‘part of the underlying action’; it is not a distinct
action.” (Phillips v. Sprint PCS (2012) 209 Cal.App.4th 758, 772 (Phillips).) Instead,
“[Plaintiffs’] lawsuit was the action on the contract for purposes of Civil Code
section 1717; [Sprint’s] . . . petition to compel arbitration was a contract-based claim


                                               10
within the larger action and [Plaintiffs’] victory [on the petition] was not a basis for a fee
award under Civil Code section 1717.” (Frog Creek, supra, 206 Cal.App.4th at p. 541.)
       Here, although Sprint’s petition to compel arbitration has been decided, the
underlying action of which the petition is a part had not reached its conclusion when the
trial court awarded Plaintiffs their attorney fees. As the trial court itself recognized,
Sprint’s cross-claims against the class had yet to be tried, and the court had yet to
determine how those amounts would be set off. Indeed, the trial court relied on its
September 26, 2012 order, in which it “expressly [did] not hold that the class has
‘prevailed’ on the merits of the action as a whole.” (Italics added.) Therefore, at that
point the trial court could not predict which party would “recover[] a greater relief in the
action on the contract.” (Civ. Code, § 1717, subd. (b)(1).) And since under Civil Code
section 1717, there may be only one prevailing party in the action (Frog Creek, supra,
206 Cal.App.4th at pp. 531, 539), an award of attorney fees under that statute was simply
premature.7
       The prevailing party determination must await resolution of the merits of the
parties’ claims. (Roberts v. Packard, Packard & Johnson (2013) 217 Cal.App.4th 822,
843 (Roberts) [reversing fee award to party that prevailed on petition to compel
arbitration filed in contract action; prevailing party determination under Civ. Code,
§ 1717 had to await resolution of contract causes of action]; Green v. Mt. Diablo Hospital
Dist. (1989) 207 Cal.App.3d 63, 76 [trial court properly denied Civ. Code, § 1717
attorney fee request where “there ha[d] been no final determination of the rights of the
parties”]; see Hsu v. Abbara (1995) 9 Cal.4th 863, 876 [“The prevailing party
determination is to be made only upon final resolution of the contract claims and only by
‘a comparison of the extent to which each party ha[s] succeeded and failed to succeed in
its contentions.’ ”].) It necessarily follows that at the time the trial court entered its order

7
  Plaintiffs have requested that we take judicial notice of an August 2, 2013 special
verdict form returned in the retrial of Sprint’s cross-claims. As Plaintiffs concede, this
document concerns a matter that occurred after entry of the order that is the subject of
this appeal. We therefore decline their request for judicial notice. (See Lucky United
Properties Investment, Inc. v. Lee (2013) 213 Cal.App.4th 635, 649, fn. 5.)

                                               11
awarding attorney fees, Plaintiffs were not entitled to fees under Civil Code section 1717
despite their success in opposing Sprint’s request for arbitration. “[D]efeating a petition
to compel arbitration filed in a pending action does not justify a grant of fees under Civil
Code section 1717 where the merits of the contract claims remain pending in that action.”
(Frog Creek, supra, 206 Cal.App.4th at p. 535.)
       C.     We Decline to Reconsider Frog Creek.
       Plaintiffs contend that because of the conflict between Kors and Frog Creek, the
trial court was entitled to choose the decision it found more persuasive. (See Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456 [where decisions of appellate
courts are in conflict, “the court exercising inferior jurisdiction can and must make a
choice between the conflicting decisions”].) Initially, while we do not quarrel with this
proposition as a legal matter, we find it difficult to understand the trial court’s choice
from a purely practical perspective. The coordinated proceeding from which this appeal
is taken has generated dozens of appeals and writ petitions to this court, all of which have
been assigned to this division. Under the rules governing assignment of cases in this
appellate district, any appeal from the lower court’s fee award was destined to come
before us. (See Ct. App., First Dist., Internal Operating Practices and Proc., III A(1),
Assignment of Cases to Divisions [“if multiple appeals or writ petitions arise from the
same trial court action or proceeding, . . . later appeals or writ petitions are assigned to
the same division to which the first appeal or writ petition was assigned”].)
       Plaintiffs’ counsel acknowledged at oral argument that in Frog Creek, we
thoroughly considered and analyzed this issue, including the matter of the Legislature’s
intent in amending Civil Code section 1717 in 1987. Under principles of stare decisis,
we are disinclined to depart from that decision in the absence of a compelling reason to
do so. (Opsal v. United Services Auto. Assn. (1991) 2 Cal.App.4th 1197, 1203-1204
[“Respect for our colleagues and the orderly administration of justice . . . dictate that
there be a compelling reason before we overrule a decision of another panel of this
court.”].) The trial court’s reasoning and Plaintiffs’ arguments in this court are based
almost entirely on statutory and case authorities we reviewed, discussed, and rejected in


                                              12
Frog Creek.8 Neither the trial court nor Plaintiffs have cited to us any new authority that
would call into question the exhaustive analysis of our earlier decision. In fact, the recent
cases considering this question have followed Frog Creek and refused to follow Kors.
(See Roberts, supra, 217 Cal.App.4th at pp. 838-843; Phillips, supra, 209 Cal.App.4th at
pp. 772-773.) We therefore decline Plaintiffs’ invitation “to consider the authorities
supporting [their] view afresh and hold that [Plaintiffs’] arbitration fees are awardable
before a final judgment on the merits.” (Fn. omitted.)
       D.     The Language of the Attorney Fee Provision Does Not Trump the Statutory
              Scheme.
       Plaintiffs also argue that under the language of the attorney fee provision at issue
here, “fees are specifically awardable for compelling arbitration no matter what the
outcome on the merits.”9 (Fn. omitted.) Thus, Plaintiffs claim, there was no reason for
the trial court to wait for final judgment before awarding fees. This argument conflicts
directly with Frog Creek. As explained above, we there rejected the proposition that
specific contractual language could justify a separate fee award under Civil Code
section 1717, because that would undermine the Legislature’s intent to establish uniform
treatment of fee recoveries in actions on contracts containing attorney fee provisions.
(Frog Creek, supra, 206 Cal.App.4th at pp. 544-546.) Plaintiffs offer us no reason to

8
  The only “new” authority Plaintiffs cite is Brock v. Kaiser Foundation Hospitals (1992)
10 Cal.App.4th 1790. Plaintiffs pick various quotes from this case and claim it stands for
the proposition “that arbitration even within existing litigation is a separate proceeding.”
Although Plaintiffs have not provided page citations for all of their quotations, we have
located and examined them. They do not support the proposition for which they are
cited. (See id. at p. 1799, fn. 7 [requirement that petition to compel arbitration be filed in
an action pending in superior court “does not mean . . . that the arbitration is a subsidiary
proceeding which necessarily falls with the paramount legal action[,]” since petition to
compel arbitration may be filed even in absence of existing legal action]; id. at pp. 1805-
1806 [trial court has no power to dismiss contractual arbitration proceeding because such
a proceeding is grounded in contract, not in action at law].)
9
  The contractual attorney fee clause in Sprint’s contracts provides: “If any party files a
judicial or administrative action asserting a claim that is subject to arbitration and another
party successfully stays such action or compels arbitration, the party filing that action
must pay the other party’s costs and expenses incurred in seeking such stay or compelling
arbitration, including attorney’s fees.”

                                             13
revisit our decision in Frog Creek on this point, and indeed their brief does not even
mention Frog Creek’s analysis of the issue.
II.    The Attorney Fee Award Cannot Be Sustained Under Section 1021.5.
       Our analysis in the preceding part of this opinion demonstrates the fee award is
also premature under section 1021.5. The trial court concluded Plaintiffs were the
prevailing parties in what it called a special proceeding, and it awarded fees based on
Plaintiffs’ success in that distinct proceeding. But since we have held that Sprint’s
petition to compel arbitration did not commence a distinct proceeding—special or
otherwise—the trial court could not award fees on that ground.
       Nor can we uphold the trial court’s order as an interim award under
section 1021.5. The trial court expressly ruled Plaintiffs’ motion was not one “for interim
award of attorneys fees before the conclusion of an action.” It opined that while it would
have been permitted to make an award of attorney fees under section 1021.5, it would not
do so “at this time” because Sprint had yet to retry its cross-claims, and thus “even
though Plaintiffs have prevailed on their claims, the amount of monetary relief is not
‘secure.’” The lower court not only clearly declined to exercise its discretion to make an
award of interim fees, it stated plainly that such an award would not be appropriate under
the present circumstances of the case. Plaintiffs have not appealed from that portion of
the order.10
       Even if, in the absence of a cross-appeal, Plaintiffs could seek affirmance on the
ground that an interim award would be proper under section 1021.5, they do not



10
  Citing Sundance v. Municipal Court (1987) 192 Cal.App.3d 268, Plaintiffs make a
cursory argument that the trial court’s fee award was not premature because “litigation
need not be concluded before statutory fees can be awarded.” This perfunctory assertion
notwithstanding, Plaintiffs filed no cross-appeal, and they do not take issue with either
the trial court’s finding that their entitlement to monetary relief is not secure or with its
conclusion that an interim award would be improper. Instead, like the trial court,
Plaintiffs contend the award is justified because the litigation of Sprint’s petition to
compel arbitration was a “special proceeding” in which they have fully and finally
prevailed. As we have explained, this argument is untenable in light of Frog Creek.

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specifically argue the trial court’s order should be upheld as one.11 Thus, although “an
action must not always be completely resolved prior to an award of fees” under that
statute (Urbaniak v. Newton (1993) 19 Cal.App.4th 1837, 1844), we have not even been
asked to affirm the order before us on that basis. (Cf. Coalition for L.A. County Planning
Etc. Interest v. Board of Supervisors (1977) 76 Cal.App.3d 241, 246 [plaintiffs argued
attorney fee award was proper under theories rejected by trial court].) As a consequence,
the issue has not been presented for our decision, and we will not further address the
parties’ arguments under section 1021.5.
       In declining to reach the issue, we intimate no view on whether it would be proper
to award Plaintiffs attorney fees under section 1021.5, either at this time or upon
conclusion of the action. As Plaintiffs correctly note, “an attorney fee award may be
justified even when plaintiff’s legal action does not result in a favorable final judgment.”
(Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565.) Here, however, the trial
court made no interim award, and Plaintiffs have not appealed that decision. We
therefore need not address whether section 1021.5 would authorize an attorney fee award
under these circumstances at this stage of the case.
                                       DISPOSITION
       The order from which the appeal is taken is reversed. Sprint shall recover its costs
on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)


11
  In fact, at oral argument Plaintiffs’ counsel expressly stated that the award was not an
interim one. Counsel also sought to raise an argument not presented in Plaintiffs’ brief,
contending that section 1021.5 confers upon trial courts great latitude to decide whether
equitable considerations dictate an attorney fee award in certain circumstances.
According to counsel, the trial court was therefore authorized to decide that the
proceedings on the petition to compel arbitration were separate enough to justify a fee
award prior to resolution of the merits. We decline to address contentions first raised at
oral argument. (See County of Sonoma v. Superior Court (2010) 190 Cal.App.4th 1312,
1326, fn. 10.) We observe nevertheless that this new equitable argument is based on the
same faulty premise as Plaintiffs’ other arguments—that the proceedings on Sprint’s
petition to compel arbitration were separate and distinct from the larger action of which
they were a part. Since we have rejected this premise, we would also be constrained to
reject this latest argument even if it had been properly presented.

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                                 _________________________
                                 Jones, P.J.




We concur:


_________________________
Needham, J.


_________________________
Bruiniers, J.




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