Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 30-2008-00101870 Kazuharu Makino, Judge.
Law Offices of Rick L. Raynsford and Rick L. Raynsford for Plaintiff and Appellant.
Jeffrey Lewis for Defendants and Respondents.
OPINION
O’LEARY, J.
Dan Bader purports to appeal from an order denying his petition to correct an arbitration award (Code Civ. Proc., § 1285) he obtained against Greg Askins individually and doing business as American West (hereafter collectively and in the singular Askins). He contends the arbitrator exceeded his powers by refusing to also award him attorney fees. We find the order is not appealable, and we dismiss the appeal.
All further statutory references are to the Code of Civil Procedure.
FACTS
Bader’s complaint alleged that in June 2006, Bader and Askins entered into an oral agreement pursuant to which Bader would sell businesses under Askins’ broker’s license and receive 40 percent of the total commissions Askins received on those sales. Additionally, they orally agreed Bader would place bank loans and receive the entire bank referral fee equal to one percent of the total loan amount. Thereafter, Bader procured a sale of a business for which he should have received a commission of $13,200. In October 2007, he placed a loan for which he should have received a fee of $2,200 but for which he had only been paid $1,525 by Askins. Bader sought damages from Askins in the amount of the unpaid commissions for the two completed transactions, $13,875, plus interest from December 2007, on several theories including breach of oral contract, account stated, services rendered, quantum meruit, and unjust enrichment.
Bader’s complaint also contained causes of action for fraud and rescission, alleging that in December 2007, Askins induced Bader to sign a written agreement that would provide him with a lower commission rate on his sales, based on misrepresentations of high sales volume and high commissions in the office. Bader sought rescission of the written agreement and damages.
Askins filed a petition to compel arbitration pursuant to the written agreement, which contained an arbitration clause and an integration clause. The trial court granted the petition and ordered the matter into arbitration.
The arbitrator’s award was filed on February 2, 2009. The arbitrator found the specific commissions Bader sought were earned by him before the written agreement was signed in November 2007, and thus the contractual relationship pertaining to those commissions was oral. The arbitrator awarded Bader the $13,875 in unpaid commissions he sought, plus $1,483.63 in prejudgment interest. Bader was awarded costs, “but as the contract of the parties was oral[,] [Bader] is not entitled to attorney’s fees.”
On February 27, 2009, Bader filed a motion titled, “Motion to Compel Arbitrator to Award Attorney’s Fees.” He cited sections 1284 and 1286.6 as authority for his motion and claimed the arbitrator had exceeded his powers by not awarding attorney fees. He argued that by sending the matter to arbitration, the trial court had essentially determined the parties rights were to be decided under the written agreement, which contained an attorney fees provision.
In his opposition, Askins noted the issue of Bader’s entitlement to attorney fees had been briefed and litigated in the arbitration proceeding, and thus Bader was asserting an error of law or fact by the arbitrator, which was not grounds for overturning the award. Askins also demonstrated he had paid Bader the full amount of the arbitration award, $15,400, and Bader had accepted and negotiated the check.
On March 27, 2009, the court entered an order denying Bader’s motion. Bader filed a notice of appeal from the order.
DISCUSSION
This appeal is easily resolved. We can begin and end our analysis with Mid-Wilshire Associates v. O’Leary (1992) 7 Cal.App.4th 1450 (Mid-Wilshire), which compels the conclusion the order is not appealable.
Although titled, “Motion to Compel Arbitrator to Award Attorney’s Fees[,]” Bader’s motion was a petition to correct the arbitrator’s award. (§ 1285.) His citation to sections 1284 and 1286.6 as authority for his motion indicates (and his moving papers confirm) the ground upon which he relied was that “[t]he arbitrator[] exceeded [his] powers but the award may be corrected without affecting the merits of the decision upon the controversy submitted[.]” (§ 1286.6, subd. (b).)
In Mid-Wilshire, 7 Cal.App.4th 1450, the Court of Appeal considered the appealability of an order denying a section 1285 motion to vacate an arbitration award. The court noted section 1294 authorizes an appeal from an order dismissing a petition to confirm, correct, or vacate an arbitration award. (§ 1294, subd. (b).) But the same is not true of an order denying a petition to vacate an arbitration award: “Such an order may be reviewed upon on appeal from the judgment of confirmation.... In this case, there is no judgment confirming the award. Accordingly, the appeal from the order compelling arbitration and the order denying the motion to vacate or correct the award must be dismissed.” (Mid-Wilshire, supra, 7 Cal.App.4th at p. 1454, citations omitted.)
As Mid-Wilshire explains, “Appellate jurisdiction is solely within the province of our Legislature, since the right to appeal is not conferred by our Constitution but by statute. [Citation.] This court is without power to bestow jurisdiction on itself, nor may the parties create jurisdiction by consent, waiver, or estoppel.” (Mid-Wilshire, supra, 7 Cal.App.4th at p. 1455, fn. omitted.) The court was careful to draw a distinction between the dismissal and the denial of a motion to vacate an arbitration award, explaining more than mere semantics were at stake. (See Sy First Family Ltd. Partnership v. Cheung (1999) 70 Cal.App.4th 1334, 1345.)
Askins filed a motion to dismiss Bader’s appeal pursuant to the reasoning of Mid-Wilshire. In his opposition, and opening brief, Bader ignores Mid-Wilshire but offers several reasons why we should consider the merits of his appeal. None are persuasive.
In his opening brief, in the requisite statement of appealability (Cal. Rules of Court, rule 8.204(a)(2)(B)), Bader states the order is appealable under section 904.1, subdivision (a)(13), which authorizes an appeal “[f]rom an order granting or denying a special motion to strike under [s]ection 425.16.” That provision is obviously inapplicable.
In his opposition to the motion to dismiss, Bader suggests we construe the order denying his motion to correct the arbitrator’s award as a judgment confirming the arbitrator’s award (§ 1287.4), which would be appealable (§ 1294, subd. (d)). Although we have discretion to save a premature appeal, Bader offers no compelling reason for us to do so here. (Boyer v. Jensen (2005) 129 Cal.App.4th 62, 69; Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007, 1010.) Nor can we find any compelling reason to treat his appeal as a petition for a writ of mandate. (See Mid-Wilshire, supra, 7 Cal.App.4th at p. 1456.)
DISPOSITION
The appeal is dismissed. Respondents shall recover their costs on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J.MOORE, J.