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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

ELEM INDIAN COLONY OF POMO

INDIANS,

Plaintiff,

 v.

PACIFIC DEVELOPMENT PARTNERS X,

LLC, et al.,

Defendants.

 /

No. C 09-1044 CRB

ORDER DENYING MOTION TO

VACATE OR MODIFY ARBITRAL

AWARD

Claimants bring this action to vacate or modify an arbitral award made in favor of

Respondent Indian Tribe. The arbitrator found that a purported contract for casino

development was void for two independent reasons: (1) lack of regulatory approval, and (2)

lack of approval under the Tribe’s constitution. The arbitrator’s holding is affirmed based on

the lack of regulatory authority, and so the issue regarding the Tribe’s Constitution need not

be reached. 

The award of costs and attorney’s fees to the Tribe is similarly affirmed, as it was

authorized by the contract in question, and is permissible under California law. The Tribe is

also entitled to recover attorney’s fees stemming from litigating this motion.

///

///

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BACKGROUND

Respondent Elem Indian Colony of Pomo Indians (the “Tribe” or “Respondent”) is a

federally recognized Indian tribe located in Clearlake Oaks, Lake County, California. 

Compl. ¶ 6. The Tribe has a Constitution and Bylaws (“Elem Const.”) that establish the

Tribe’s government. Id. ¶ 11. The Tribe’s General Council is made up of all voting

members of the Tribe. Elem Const. art. III § 1. The Constitution also provides for an

executive committee, consisting of a Chairman, a Vice-Chairman, a Secretary-Treasurer, and

two committee members. Elem Const. art. III § 3. 

The Tribe’s Constitution grants the General Council the power to “manage, lease,

contract, or otherwise deal with tribally owned assets.” Elem Const. art. VII § 1(e). The

Constitution specifically states that the Executive Committee “shall not commit the Elem

Indian Colony to any contract, lease, or other transaction unless it is so authorized in advance

by a duly enacted ordinance or resolution of the General Council.” Elem Const. art. VII § 2. 

 In early 2007, Claimant Daniel Kerrigan began discussing a proposed casino project

on the Tribe’s lands with Tribe Chairman Raymond Brown. Compl. ¶ 14. At that time,

Kerrigan was associated with an entity named First Nations Capital, but was transitioning out

of his position with First Nations, and developing his own companies: Pacific Development

Partners X, LLC (“PDP”) and Pacific Tribal Partners, LLC (“PTP”) (Kerrigan, PDP, and

PTP are, collectively, “Claimants”). Id. Kerrigan Decl., ¶¶ 1, 5. 

At a meeting on July 22, 2007, the Executive Committee authorized Brown “to sign

either a letter of intent, MOU/MOA [Memorandum of Understanding / Memorandum of

Agreement] with First Nations Capital to exclusively work towards the development of a

casino contract.” Compl. ¶ 17. At the August 4, 2007 meeting of the General Council, the

Executive Committee sought the necessary approval to authorize Brown to sign a contract

with First Nations Capital. Id. ¶ 19. 

///

///

///

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The disparity between the authorization (for an agreement with First Nations) and the execution

(with PDP/PTP) was ruled out as grounds for voiding the contract by the arbitrator under the theory of

misnomer because at all times the tribe was working directly with Kerrigan, whether through First

Nations or PTP. Award, p. 5.

3

On September 4, 2007, former Chairman Brown and Kerrigan executed a

Memorandum of Agreement (“MOA”) between the Tribe and PDP.1

 Id. ¶¶ 2, 21. At the

time, the Tribe was not represented by an attorney in connection with the MOA. Id. ¶ 23. 

Pursuant to the agreement, PDP then issued a check to the Tribe in the amount of $10,000. 

Motion, p. 3:12-13. PDP also began preliminary environmental work and hired several Tribe

members for the project. Motion, p. 3:14-16. 

Over the next six months, the Tribe faced internal power struggles. Id. ¶ 16. On

March 22, 2008, the Executive Committee voted to recall Raymond Brown as chairman. Id.

¶ 14. The Executive Committee also voted to terminate the MOA. Id. ¶ 15.

On June 26, 2008, after the contract had been terminated, the Tribe sent a letter to the

National Indian Gaming Commission (“NIGC”) asking for review of the MOA. Bergin

Decl. attach. 11. About nine months later, on April 2, 2009, the NIGC sent a letter with the

opinion that the MOA is a management contract which is void without the NIGC Chairman’s

approval. Bergin Decl., attach. 12; 25 C.F.R. § 533.7. Such approval was never sought nor

granted. 

The case came before this Court when PDP/PTP sought arbitration to recoup losses;

the Tribe sought injunctive and declaratory relief from this Court on grounds that the MOA

was void under the Indian Gaming Regulatory Act (“IGRA”; 25 U.S.C. §§ 2701-2721)

making the arbitration clause similarly void. Compl. ¶ 53. This Court ordered the parties to

submit to arbitration to determine the validity of the MOA. Order Compelling Arbitration,

6/23/09.

The Arbitrator held for the Tribe. Award, p. 11. The MOA was found void and the

Claimants were held responsible for the costs of arbitration including attorney’s fees. Id. 

The Tribe was ordered to return the $10,000 previously paid to the Tribe by Claimants. Id.

The award was entered “in full settlement of all claims.” Id. 

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On December 24, 2009, the Tribe submitted a Request for Modification of the Arbitral

Award, in order to assign a specific dollar value to the award of attorney’s fees. Bergin

Supp. Decl., attach. 1, p.1. After objections from Claimant, the Arbitrator issued a PostAward Ruling on January 26, 2010 establishing parameters and conditions for the recovery

of attorney’s fees. Bergin Decl., attach. 18. Before the Arbitrator made any rulings vis à vis

the actual value of attorney’s fees, he resigned due to nonpayment of his retainer. See Bergin

Supp. Decl. ¶ 4 and attach. 2. Claimants have now brought this action to vacate or modify

the Arbitral award.

STANDARD OF REVIEW

The Federal Arbitration Act, 9 U.S.C. §§ 9-11, provides the exclusive grounds for

vacatur and modification of arbitration awards. Hall Street Associates, LLC v. Mattel, Inc.,

552 U.S. 576, 578 (2008). Review of arbitration awards is “both limited and highly

deferential;” an award may be vacated only if it is “‘completely irrational’ or ‘constitutes

manifest disregard of the law.’” Comedy Club, Inc. v. Improv West Associates, 553 F.3d

1277, 1288 (9th Cir. 2009). “Manifest disregard of the law” means that the arbitrator

“recognized the applicable law and then ignored it,” Comedy Club, 553 F.3d at 1290; the law

ignored “must be well defined, explicit, and clearly applicable.” Collins v. D.R. Horton, Inc.,

505 F.3d 874, 879-880 (9th Cir, 2007) (quoting Carter v. Health Net of Cal., Inc., 374 F.3d

830, 838 (9th Cir. 2004) (emphasis removed)). “[T]he ‘completely irrational’ standard is

extremely narrow and is satisfied only ‘where [the arbitration decision] fails to draw its

essence from the agreement.’” Comedy Club, 553 F.3d at 1288. Clearly erroneous findings

of fact or contradictory findings of fact do not render a decision completely irrational. 

Bosack v. Soward, 586 F.3d 1096, 1106 (9th Cir. 2009). 

Neither factual nor legal error are among the enumerated grounds for vacatur. 9

U.S.C. § 10. This stems from well-developed Ninth Circuit case law: “confirmation is

required even in the face of erroneous findings of fact or misinterpretations of law.” Kyocera

Corp. v. Prudential-Bache Trade Services, Inc., 341 F.3d 987, 997 (9th Cir. 2003) (en banc). 

See also Coutee v. Barrington Capital Group, LP, 336 F.3d 1128, 1133 (9th Cir. 2003). The

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Ninth Circuit recognized, though, that federal courts “will not confirm an arbitration award

that is legally irreconcilable with the undisputed facts” and that “an arbitrator’s failure to

recognize undisputed, legally dispositve facts may properly be deemed a manifest disregard

for the law.” Coutee, 336 F.3d at 1133. 

DISCUSSION

Claimants attack the arbitrator’s award on three grounds. First, they claim that the

arbitrator exceeded his authority by disregarding one of the stipulated facts, an action

Claimants argue is “manifest disregard for the law” under Coutee. Second, Claimants posit

that the arbitrator manifestly disregarded the law by not applying estoppel or retroactive

ratification here. Finally, Claimants hold that even if the other parts of the award stand, the

attorney’s fees should be thrown out because the Tribe failed to request them in the

arbitration proceedings. 

The Tribe counters on several fronts. First, the Tribe contends that the motion was

untimely. Next, the Tribe claims that the MOA was found to be void for two independent

reasons: first, the MOA was never received regulatory approval as required under the IGRA;

second, the MOA was never approved by the Tribe’s General Council and thus is void under

tribal law. Claimants only counter the second of these two independent arguments, and

largely ignore the first. Finally, the Tribe asserts that the award of attorney’s fees was not

only appropriate, but mandatory under California law.

As noted above, Claimants fail to account for the arbitrator’s second independent

justification for ruling against them: the contract was void because it did not receive the

required regulatory approval. Claimants may be correct that the majority of the arbitrator’s

opinion focused on the issue of tribal approval, it is not the case that the arbitrator “mentions

such issue only in passing.” Mot. at 6. The arbitrator wrote that the MOA “should have

received NIGC approval before it became operative.” Award at 10. There is no getting

around this statement. Therefore, the question of whether the arbitrator improperly ignored

stipulated facts is immaterial. The arbitrator’s ruling on the merits must stand because his

determination regarding regulatory approval was not in manifest disregard of the law. 

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The final question is whether the arbitrator’s award of attorney’s fees to the tribe

should stand. This Court concludes that the arbitrator’s award of fees and costs to the Tribe

was proper because the MOA was governed by California law, which permitted such an

award, and further concludes that the Tribe is entitled to recoup attorney’s fees and costs

incurred in defending against this motion in Federal Court for the same reason.

I. Timeliness of the Motion

Claimants admittedly filed this motion late, apparently due to the attorney’s slow

wristwatch. Bergin Supp. Decl., p.3:7-10. He thought he had filed it before midnight March

8, 2010, when in fact he filed it at 1:33 AM, March 9. Id. The Tribe now claims that the

motion was untimely, exceeding the three month deadline for filing a motion to vacate or

modify an award. 9 U.S.C. § 12. The award was emailed to all parties December 7, 2009. 

The three month deadline was on March 7, 2010, which was a Sunday, thus the deadline was

extended to Monday March 8, 2010. It seems that counsel worked feverishly to submit the

motion on March 8, but failed.

Claimants now bring several arguments supporting a deadline later than March 8. 

First, they claim that the statute of limitations was tolled pending resolution of the Tribe’s

December 24 Request for Modification of Arbitration Award. Second, they claim the statute

should be equitably tolled. Third, they argue that the statute did not begin to run until they

received mail service, which was sent December 23.

Claimants first cite well-developed caselaw holding that courts should refrain from

reviewing an arbitration award until it is final and binding. See, e.g., Kenner v. Dist. Council

of Painting and Allied Trades No. 36, 768 F.2d 1115, 1118 (9th Cir. 1985); Reply, p. 7:6-18. 

The Ninth Circuit in Millmen held that the award was not final when the arbitrator retained

jurisdiction over matters undecided on which the parties might not agree. Millmen Local 550

v. Wells Exterior Trim, 828 F.2d 1373, 1376-77 (9th Cir. 1987). Here, the arbitrator, after

the Tribe’s Request for Modification, similarly claimed jurisdiction to oversee the

calculations of attorney’s fees and Claimants’ objections to them. Therefore, because the

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While these bulletins and the later-cited informal opinion letter from the NIGC are not entitled

Chevron deference, they may be accepted by the court as persuasive. See First American Kickapoo v.

Multimedia Games, 412 F.3d 1166, 1174 (10th Cir. 2005) (citing SUWA v. Dabney, 222 F.3d 819, 828

(10th Cir. 2000); Skidmore v. Swift, 323 U.S. 134, 140 (1944)).

7

arbitration was not truly final as of December 7, the statutory period did not begin until later. 

Therefore, the motion was timely.

Because this Court finds this first argument persuasive, it does not reach the latter two

arguments.

II. The MOA was Void Under IGRA

The MOA was null and void because it was in fact a management contract and the

Chairman of the NIGC never approved of the agreement. See Award, p. 10. Because of this,

we need not reach the independent question of whether the Arbitrator overstepped his

authority in also voiding the agreement based on the Tribe’s General Council’s purported

failure to approve of the document before it was executed, as required by the Tribe’s

Constitution. Id. Because the arbitrator’s conclusion that MOA required regulatory approval

is not “completely irrational,” his decision cannot be set aside.

A. Legal Background

Pursuant to authority granted in 25 U.S.C. § 2702(b)(1), the NIGC has promulgated

regulations to implement the provisions of the IGRA. One of these regulations, found at 25

C.F.R. § 533.7 states that “[m]anagement contracts . . . that have not been approved by the

Chairman in accordance with the requirements of part 531 of this chapter and this part, are

void.” 

The NIGC has also issued bulletins to provide guidance on issues that may come

within the purview of the IGRA.2

 NIGC Bulletin 93-3 states that “if a tribe or contractor is

uncertain whether a gaming-related agreement requires the approval of either the NIGC or

the BIA, they should submit those agreements to the NIGC.” NIGC Bulletin 94-5 gives

guidance to Indian tribes and entities that may deal with them regarding what constitutes a

management contract, stating:

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Management encompasses many activities (e.g., planning, organizing, directing,

coordinating, and controlling). The performance of any one of such activities with

respect to all or part of a gaming operation constitutes management for the

purpose of determining whether any contract or agreement for the performance of

such activities is a management contract that requires approval. 

NIGC Bulletin 94-5 provides further guidance regarding the potential risk of acting

pursuant to a management contract that has not been approved by the NIGC Chairman:

A management contract that has not been approved by the Chairman is void.

Furthermore, the management of a gaming operation under a “management”

contract or agreement that has not been approved could result in the gaming

operation being closed. The consequences to the parties are:

• The tribe would have to close down the operation or operate it on

its own, and

• The management contractor would have to vacate the operation and

could be subjected to legal action to return to the tribe any funds it

received under the contract. 

B. The Terms of the MOA

The MOA, which refers to PDP as the “Company,” states that:

the Parties unequivocally agree by entering into this MOA to enter into the

definitive and legally binding agreements (“definitive agreements”) that shall

provide the governing details for the relationship between the Tribe and the

Company with respect to the planning, financing, development and management

of a Casino(s) and related facilities . . . .

See MOA Cl. 5. 

The MOA further requires that the Tribe enter into an exclusive management

agreement with PDP, which would give PDP the right to manage day-to-day operations at the

casino. See MOA Cl. 7; art II §§ 1-2. In exchange for management services over five years,

the MOA specifies that the management company shall be paid twenty-five percent of the

casino’s net gaming revenues. See MOA art. II §§ 3-4. The MOA provides that the Tribe

must approve PDP as the manager of the casino prior to execution of a subsequent

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See n.4, supra.

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Development Agreement, but that such approval shall be subject to the finalization of the

Management Agreement required by MOA art. II § 1, “and its approval by the NIGC.” The

MOA also specifies that the agreement shall terminate “[i]n the event that the Company or its

designee is not so approved as the manager by the NIGC.” See MOA art. III § 4. 

C. Discussion

The arbitrator’s conclusion that the MOA is a “management contract,” and is therefore

void without approval by the NIGC Chairman, is perfectly reasonable. The Tribe cites in the

Complaint to three similar cases where other courts found a contract was null and void

because it was not approved by the NIGC Chairman. See First American Kickapoo

Operations, LLC v. Multimedia Games, Inc., 412 F.3d 1166 (10th Cir. 2005); United States

v. Casino Magic Corp., 293 F.3d 419 (8th Cir. 2002); Machal, Inc. v. Jena Band of Choctaw

Indians, 387 F. Supp. 2d 659 (W.D. La. 2005). 

Like those contracts, the Tribe’s MOA includes many characteristics of a

“management contract.” The MOA states that PDP “shall exclusively manage the day-to-day

operations of the Casino(s)” on the Tribe’s lands. The MOA binds the Tribe to entering into

a management contract with PDP to manage all such casinos, and forbids the Tribe from

operating a gaming operation on its own. The MOA also contains provisions relating to

accounting and reporting, the length of the envisioned management relationship, and the

compensation based on a percentage of net gaming revenues. The MOA contemplates that

the parties will enter into a subsequent agreement to solidify some of the management terms,

but the MOA itself binds the Tribe to the management services of PDP. Accordingly, it is a

contract that cannot be enforced without approval of the NIGC Chairman. 

Although not binding, the NIGC’s Acting General Counsel arrived at the same

conclusion.3

 See Bergin Decl., attach.12. In response to an inquiry from the Tribe, Ms.

Coleman reviewed the MOA. She concluded that “[i]t is clear that the purpose of the

Agreement is to bind [PDP] to develop and manage a casino for the Tribe. Moreover, the

exclusive right to manage the day-to-day operations of the casino, the compensation under

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the Agreements, the term of years, and hiring of employees are all factors that indicate a

management relationship.” Id. In closing, Coleman stated: “It is my opinion that the

Agreement constitutes a management agreement requiring the approval of the NIGC

Chairman.” Id. 

Claimants do not attempt to refute the Tribe’s characterization of the MOA. Rather,

they put all of their effort into proving that the Tribe’s General Council properly authorized

Chairman Brown to execute the MOA. Because the MOA is clearly void for lack of NIGC

approval, we need not reach the second issue of whether the General Council authorized

execution of the MOA. Lack of NIGC approval is a completely independent ground for

voiding the MOA, and the arbitrator’s award must therefore be affirmed.

III. Attorney’s Fees

A. Attorney’s Fees in Arbitration

A federal court may modify or correct an award “[w]here the arbitrators have awarded

upon a matter not submitted to them.” 9 U.S.C. § 11(b). A court may “strike all or a portion

of an award pertaining to an issue not at all subject to arbitration.’” Schoenduve Corp. v.

Lucent Techs., Inc., 442 F.3d 727, 732 (9th Cir. 2006) (quoting Kyocera Corp., 341 F.3d at

997-98). In this matter, the MOA authorized an award of attorney’s fees to the prevailing

party in arbitration. MOA §§ VI ¶ 6e. Throughout the proceedings, Claimants maintained

that if they prevailed, they were entitled to attorney’s fees and arbitration costs. Claimants’

Statement of Demand ¶ 13; Claimants’ Closing Arguments. Respondent Tribe did not make

that assertion in the arbitration proceedings. Post-Award Ruling, p. 2. Claimants now ask

this Court to modify the arbitral award pursuant to 9 U.S.C. § 11(b) so as to remove the

award of attorney’s fees to the Tribe because they were not an issue submitted to the

arbitrator. 

Under the Federal Arbitration Act, 9 U.S.C. §§ 1-14, an arbitrator has no inherent

authority, aside from contractual or statutory authority, to award attorney’s fees. Similarly,

under AAA Commercial Arbitration Rule R-43(d)(ii), an arbitrator may not (barring statutory

or contractual authority) award attorney fees unless all parties have requested them. The

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 The arbitrator expressly noted that the award of attorney’s fees did not stem from the MOA,

but “on merit for work performed” “because of their failure to prove their case.” Post-Award Ruling,

Bergin Decl. attach. 18. Based upon the above-cited authorities, the arbitrator did not have discretion

to award fees for that reason. However, the question before this Court is not whether the arbitrator

identified the proper legal justification for the award, but rather whether “any rational basis exists for

the award.” Lifecare Intern., Inc. v. CD Med., Inc., 68 F.3d 429 (11th Cir. 1995) (emphasis in original).

The parties agreed that the MOA was to be governed by the laws of California. MOA, § VII,

¶ 3.

11

FAA and the Arbitration Rule have identical caveats: the arbitrator is barred from awarding

attorney’s fees if the issue was not submitted, unless he has statutory or contractual authority. 

The MOA itself gives the arbitrator the necessary contractual authority to grant attorney’s

fees to the prevailing party, and California law confers on the arbitrator statutory authority to

award fees even in the face of a finding that the contract is void.4

 Therefore, the award must

stand. 

California Civil Code § 1717 authorizes the award of contractual attorneys’ fees even

where that contract has been held to be void. The California Supreme Court explained in

Hsu held that “a party is entitled to attorney fees under section 1717 ‘even when the party

prevails on grounds the contract is inapplicable, invalid, unenforceable or nonexistent, if the

other party would have been entitled to attorney's fees had it prevailed.’” Hsu v. Abbara, 9

Cal. 4th 863, 870 (1995) (citing Bovard v. American Horse Enterprises, Inc., 201

Cal.App.3d 832, 842 (1988)). The underlying policy is to establish parity of remedies in a

situation where attorney’s fees would otherwise be available to only one party. Hsu, 9 Cal.

4th at 870. The Court further explained that such a grant of fees in a dispute over a contract

with a fee provision is mandatory, not discretionary. Hsu 9 Cal. 4th at 872, 877. The Ninth

Circuit, before Hsu, reached the same conclusion interpreting section 1717. Diamond v.

John Martin Co., 753 F.2d 1465, 1467 (9th Cir. 1985) (“Where, as here, a party sued under

an alleged contract containing an attorney’s fee clause prevails by establishing that there was

no such contract, that party is entitled to a section 1717 fee award.”). 

Claimants argue, citing Roy Allen, that the California Civil Code does not apply here

because this is not a diversity action. See Roy Allen Slurry Seal v. Laborers Int’l Union, 241

F.3d 1142, 1146 (9th Cir. 2001). On the contrary, although this case is not a diversity action,

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The arbitrator held in the Post-Award Ruling (Bergin Decl., attach. 18, p.2) that he had no

jurisdiction to make an award of attorney’s fees for this district court action.

12

it is an action “on the contract” and the contract in question (the MOA) has a choice of law

provision naming California law. MOA, § VII, ¶ 3. As in Resolution Trust, where a contract

contains an attorney’s fees clause and that contract is explicitly governed by California law, a

federal court must apply the state law governing attorney’s fees. Resolution Trust Corp. v.

Midwest Federal Savings, 36 F.3d 785, 800 (9th Cir. 1993). Thus, Roy Allen’s restriction

against using state attorney’s fee law does not apply because this is a contract action

explicitly governed by California law. Like Resolution Trust, the contract at issue here, the

MOA, contains an attorney’s fee provision and is explicitly governed by California law. See

also Lafarge v. Kaiser Cement, 791 F.2d 1334, 1339, 1341 (9th Cir. 1986) (“The

Kaiser-Foley contract provides that Kaiser is entitled to attorney fees in any action to enforce

the contract. The contract also provides that it is to be interpreted in accordance with

California law. California Civil Code, section 1717 makes the contract provision for attorney

fees applicable to Foley also, if Kaiser's motion constitutes an action ‘on the contract’.”).

 So, regardless of how the arbitrator characterized his grant of the fee award, the Tribe

was and is entitled to attorney’s fees under the Hsu and Diamond interpretations of section

1717. The arbitrator did not manifestly disregard any law here. Claimant stresses that

attorney’s fees were not an issue submitted by both parties for arbitration, but it cannot

escape the fact that if it had prevailed, Claimant would have a contractual right to attorney’s

fees through the MOA. This is just the situation section 1717 was meant to address and both

California and the Ninth Circuit are clear that in this type of situation, the Tribe is entitled to

recover attorney’s fees even though the MOA is void. The exact value of the fees is an issue

for arbitration, not this Court, so the issue of the exact value of attorney’s fees for the

arbitration must be remanded to arbitration for calculation.

B. Attorney’s Fees Stemming from This Motion

The Tribe contends that Claimants are also liable for fees incurred in defending

against this motion to vacate, in addition to fees from the arbitration.5

 See, e.g., LaFarge ,

Case 3:09-cv-01044-CRB Document 50 Filed 05/19/10 Page 12 of 13
United States District Court

For the Northern District of California

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 The Tribe has represented to this Court that funds now exist to pay the arbitrator, so

presumably there will be no problem securing the services of an arbitrator.

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 This Court is also in receipt of Defendants’ Motion for Leave to File Motion for

Reconsideration. That motion is moot in light of this written order, and Defendants are advised to

resubmit such a motion if it remains appropriate. 

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791 F.2d at 1340-41. The Arbitration Clause of the MOA states that the prevailing party in

arbitration is entitled to attorney’s fees not only for the arbitration, but also for “the

enforcement of its judgment.” MOA, § VI, ¶ 6e. Because the controlling law of the MOA is

California law, attorney’s fees for this action should be governed by section 1717, as they

were in Lafarge. 791 F.2d at 1341. Under Lafarge, the prevailing party in a federal action to

enforce an arbitration agreement is entitled to attorney’s fees under section 1717. 791 F.2d at

1340-41. Therefore, the Tribe is entitled to fees.

To conclude, the Court finds that the Tribe is entitled to attorney’s fees and other costs

stemming from the arbitration proceedings. The valuation of those fees are REMANDED to

arbitration for assessment, as it is the province of the arbitrator to assess the value of the

awards granted in arbitration.6

 Further, the Tribe is entitled to attorney’s fees stemming from

defending the motion in this Court, pursuant to California Civil Code section 1717 as

interpreted in Lafarge.

CONCLUSION

For the abovementioned reasons, the motion to vacate or modify the arbitral award is

DENIED. The issue of assessment of fees and costs stemming from the arbitration is

REMANDED to arbitration. Further, the Tribe is entitled to recover attorney’s fees and costs

stemming from this federal action. The Tribe should therefore submit a proposed order as to

that issue in addition to a declaration setting forth sufficient evidence regarding the fees to

which it is entitled for opposing this motion.7

IT IS SO ORDERED.

May , 2010 

CHARLES R. BREYER

UNITED STATES DISTRICT JUDGE

Case 3:09-cv-01044-CRB Document 50 Filed 05/19/10 Page 13 of 13