Opinion
F074590
05-30-2018
MOHAMMAD GORAYA, Cross-Defendant and Appellant, v. MILDRED K. STEPHENS, Cross-Complainant and Respondent.
Dessy & Dessy and Ronald D. Dessy for Cross-Defendant and Appellant. Yarra, Kharazi, Clason & Aniotzbehere, H. Ty Kharazi and Nicholas E. Aniotzbehere for Cross-Complainant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. S-1500-CV-282409)
OPINION
APPEAL from an order of the Superior Court of Kern County. Lorna H. Brumfield, Judge. Dessy & Dessy and Ronald D. Dessy for Cross-Defendant and Appellant. Yarra, Kharazi, Clason & Aniotzbehere, H. Ty Kharazi and Nicholas E. Aniotzbehere for Cross-Complainant and Respondent.
-ooOoo-
Mohammed Goraya appeals from the trial court's order vacating an arbitration award in his favor. On November 17, 2016, after soliciting a letter brief from Goraya regarding the timeliness of the appeal, this court issued an order deeming the appeal timely. After reviewing the record on appeal, however, it is apparent that the contentions in Goraya's letter brief were inaccurate and mistaken. Having again reviewed the question, which the parties analyzed in their appellate briefs, we are compelled to conclude that the appeal was, in fact, filed late. We lack jurisdiction to consider the merits and must dismiss the appeal.
FACTS AND PROCEDURAL HISTORY
Mildred Stephens owned a parcel of real property in Kern County. On May 23, 2014, she entered into an agreement to sell the property to Kulwinder Sekhon, with Goraya as broker or agent. Sekhon filed a complaint in the trial court on July 3, 2014, alleging that Stephens had refused to complete the sale.
Stephens filed a cross-complaint against Goraya in the trial court on August 12, 2014. It alleged that Goraya made false representations and used undue influence to obtain Stephens's signature on the agreement to sell her property. It prayed for a judgment against Goraya requiring him to indemnify Stephens should Sekhon obtain a judgment against her.
Sekhon filed a petition in the trial court to compel arbitration of his claim against Stephens pursuant to an arbitration clause included in the agreement for sale of the property. This petition was granted on November 10, 2014.
Goraya contacted the arbitrator to request that he be joined as a party in the arbitration so that he could assert a claim against Stephens for breaching the listing agreement between them by failing to pay his commission. The listing agreement included an arbitration clause. The arbitrator granted this request on April 16, 2015. Goraya also asked the arbitrator to join Selah Alnajar, the buyer to whom Stephens sold her property in preference to Sekhon. Goraya wished to assert against Alnajar a claim that Alnajar interfered in the sale agreement between Stephens and Sekhon, causing Goraya to lose his commission. The arbitrator granted that request on May 13, 2015.
Sekhon and Stephens resolved their dispute by means of a settlement agreement. As a result, Sekhon's complaint against Stephens in the trial court was dismissed with prejudice on December 4, 2015. The arbitrator issued a ruling on the remaining disputes involving Goraya, Stephens and Alnajar on January 27, 2016, and issued a corrected version of the ruling on February 18.
Subsequent references to dates are to dates in 2016.
The arbitrator ruled that Goraya had done nothing to incur any liability to Stephens. Instead, Goraya earned his commission and Stephens breached her obligation to him. Further, Alnajar unlawfully interfered with the sale from Stephens to Sekhon, and therefore shared in the liability for Goraya's lost commission. The arbitrator awarded Goraya the following amounts against Stephens and Alnajar: $20,400 plus interest for the commission; $10,000 for attorney fees; and $2,563.47 for costs.
Goraya filed a petition in the trial court to confirm the arbitrator's award, pursuant to Code of Civil Procedure section 1285. Stephens and Alnajar opposed the petition and requested, pursuant to section 1285.2, that the court vacate the award. They argued that their disputes with Goraya were never the subject of a demand for arbitration or an order to compel arbitration, and could not properly be subsumed under the order compelling arbitration of the dispute between Stephens and Sekhon. Consequently, they contended, the arbitrator had no authority to issue the award against them and in favor of Goraya, and they were denied due process of law.
Subsequent statutory references are to the Code of Civil Procedure.
The court issued its ruling on April 14. It denied Goraya's petition to confirm the award and granted Stephens and Alnajar's request to vacate it. Its minute order stated:
"[Sekhon] and [Stephens] . . . already settled their dispute, thus, the only controversy that remains in this case is the claims asserted in the original Cross-Complaint by [Stephens] against Mr. Goraya. No responsive pleading to that Cross-Complaint was filed by Mr. Goraya with this Court, neither did Mr. Goraya file a pleading in the arbitration proceedings. This creates a due process issue. . . . [¶] The court does find the matters are inextricably intertwined . . . and therefore the matters would be properly arbitrated together once the pleading status was corrected."
On June 7, Goraya filed a "renewed motion" for confirmation of the arbitration award. Referencing the trial court's discussion of the lack of pleadings, this motion cited section 1282.2, subdivision (d), which provides that in an arbitration hearing, "rules of evidence and rules of judicial procedure need not be observed."
The trial court's ruling on the renewed motion was filed on July 29. The court deemed the motion a motion pursuant to section 1008, subdivision (b), which permits an unsuccessful moving party to "make a subsequent application for the same order upon new or different facts, circumstances or law." The court ruled that, with reasonable diligence, Goraya could have discovered the "different" law he cited (i.e., § 1282.2, subd. (d)) at the time he filed his original motion, as this law was enacted in 1961 and last amended in 1981. For this reason, the court denied the motion.
Stephens filed a request to voluntarily dismiss her cross-complaint against Goraya on August 25.
On September 1, the trial court issued an order stating the following:
"On August 31, 2016, [Goraya's counsel] appeared for a Case Management Conference that was set by this court as part of its ruling on July 14, 2016. No other parties appeared. Subsequent to the July 14, 2016 ruling Mildred Stephens dismissed her entire cross-complaint which resulted in a final disposition of the entire matter pending before the court and the Case Management Conference was vacated. The court has reviewed the file and finds the complaints and cross-complaints pending before it are concluded."
The July 14 ruling referred to here is the same as the ruling denying Goraya's renewed motion, which was filed on July 29. The trial court's docket shows this order first appearing in the minutes on July 14, and then being entered on July 29.
Goraya filed his notice of appeal on October 12.
DISCUSSION
As we will explain, there is no theory by which Goraya's appeal can be deemed timely.
The order denying Goraya's motion to confirm the arbitration award, and vacating that award, was entered on April 14. Goraya's notice of appeal, on its face, appeals from the court's order of that same date. This was an appealable order under section 1294 which provides that an aggrieved party may (1) appeal from an order denying a petition to confirm an arbitration award (§ 1294, subd. (b), and (2) appeal from an order vacating an arbitration award (§ 1294, subd. (c)).
When an order is appealable, a notice of appeal from the order must be filed on or before the earliest of the following (with "order" substituted for "judgment" as appropriate; see Cal. Rules of Court, rule 8.104(e)):
Subsequent references to rules are to the California Rules of Court.
"(A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled 'Notice of Entry' of judgment or a filed-endorsed copy of the judgment, showing the date either was served;
"(B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled 'Notice of Entry' of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or
"(C) 180 days after entry of judgment." (Rule 8.104(a)(1).)
In this case, there is no indication in the record that the trial court or any party ever served anyone with a document entitled "Notice of Entry," or with a file-stamped copy of the April 14 order. The court served its minute order on all parties by mail on April 14, but the copies served were not file-stamped and there was no document entitled "Notice of Entry."
Accordingly, the period of 180 days after entry of judgment applies. "The entry date of an appealable order that is entered in the minutes is the date it is entered in the permanent minutes." (Rule 8.104(c)(2).) The full text of the order appears on the trial court's docket for April 14; the copies mailed to the parties bear that date; a notation at the bottom of those copies indicates that the minute order was finalized by the clerk on the same date; and the proof of service shows that the copies were mailed on that date as well. There is no basis for deeming the date of entry to be any other date.
The Rules of Court provide that if an appealable minute order directs that a written order be prepared for signature, then the entry date is the date the signed order is filed. The rules further specify that the foregoing does not apply to a written order prepared under rule 3.1312, i.e., an order prepared by the prevailing party at the court's direction. (Rule 8.104(c)(2).) The minute order here directed the prevailing party to prepare an order under rule 3.1312. Again, the conclusion is that the order was entered on April 14.
In his letter brief, responding to our request that he show the timeliness of his appeal, Goraya asserted that his notice of appeal from that April 14 order was timely filed within 180 days after the order was made. That assertion is incorrect. The notice of appeal was filed in the trial court on October 12, which was not a weekend or a holiday. October 12 is 181 days after April 14, so the appeal is untimely.
In that same letter brief, Goraya contended that the April 14 order was not appealable because it "included a provision for a rehearing in arbitration" and was therefore not appealable under section 1294, subdivision (c). Section 1294, subdivision (c) provides that an aggrieved party may appeal from an order vacating an arbitration award unless a rehearing in arbitration is ordered.
The relevant page of the court's order—a page omitted from the copy of the order that Goraya's counsel included in his letter brief—states only that "the matters would be properly arbitrated together once the pleading status was corrected." This statement does not purport to order a rehearing in arbitration and in fact no such rehearing was ever ordered nor were the deficiencies in the pleadings ever corrected.
Although the order contains that comment about the possibility of future arbitration, that remark must be understood in the context of the court's findings preceding that comment. In vacating the arbitration award, the court noted that Goraya had been named by Stephens in a cross-complaint for indemnity but had filed no responsive pleading and had made no appearance in the case. Moreover, it noted that Goraya had neither filed nor served a cross-complaint against either Stephens or Alnajar, who was not a party to the case. Recognizing the due process issues involved in confirming an arbitration award against Stephens and Alnajar, the trial court vacated that award. Its comment about the possibility of arbitration if proper pleadings were filed and proper notice given was no more than a recognition that Goraya's potential claims might properly be arbitrated together. The trial court made no order compelling arbitration of those potential claims and Goraya did not seek to obtain such an order.
In his appellate briefs, Goraya's counsel argues that the clock for the appeal deadline did not start running until September 1, because the April 14 order was "modified by" the September 1 order. He contends that the order vacating the arbitration award did not become final, for purposes of appeal, until the hearing on September 1, when the court determined a "final disposition" of the entire case.
In its September 1 order, the court did not purport to modify its previous order vacating the arbitration award, nor did it render any final judgment on the April 14 order. Indeed, the court made no mention of that order. Rather, the court undertook to explain why a previously scheduled case management conference was vacated, noting that the dismissal of the cross-complaint left no pleadings remaining before the court. Goraya's contention that the April 14 order did not become final, for purposes of appeal, until September lacks both factual and legal support. As noted, nothing in the September 1 order either modified or finalized the court's April 14 order.
Section 1294 provides that an aggrieved party may appeal from an order vacating an arbitration award. It does not require that an appealable order foreclose the possibility of arbitration altogether (Marcus & Millichap Real Estate Investment Brokerage Co. v. Woodman Investment Group (2005) 129 Cal.App.4th 508, 514-515) or finalize the litigation (Michael v. Aetna Life & Cas. Ins. Co. (2001) 88 Cal.App.4th 925, 932).
Other theories by which Goraya's appeal might be deemed timely also fail. The order filed on July 29, in which the trial court denied Goraya's "subsequent application for the same order" (§ 1008, subd. (b)) is itself arguably an appealable order, since it too denied a request to confirm the arbitration award and upheld the previous order to vacate the award. But the appeal is still untimely if it is construed as an appeal from that order. Stephens's counsel served all parties with file-stamped copies of the signed order by mail on August 5. The notice of appeal could be filed no later than 60 days after this date (rule 8.104(a)(1)(B).) The deadline thus was October 4, and the notice of appeal was eight days late by this measure.
Finally, Goraya's renewal of his motion to confirm the arbitration award arguably was a motion to reconsider under section 1008, subdivision (a), instead of a subsequent application for the same order, under section 1008, subdivision (b). A motion to reconsider (unlike a subsequent application for the same order) must be filed within 10 days after service on the party of the notice of entry of the order denying the original motion. Goraya's renewal was filed on June 7, which was more than 10 days after April 14. But as we have seen, what the court served on the parties was not titled "Notice of Entry" of the April 14 order and was not a file-stamped copy of that order. So, perhaps, that 10-day period was never triggered. In that case, the notice of appeal was timely if it was filed by the earliest of: 30 days after service of the order denying the motion to reconsider (August 5); or 90 days after the filing of the motion to reconsider (June 7); or 180 days after entry of the original order (April 14). (Rule 8.108(e).) These dates are September 4, September 5, and October 11. The notice of appeal was filed not only after the earliest of these dates, but after all of them.
We have no power to extend the time to file a notice of appeal, and we have no jurisdiction over a late appeal. Goraya's appeal must be dismissed. (Van Beurden Ins. Services v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56; Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1454; rule 8.104(b).)
DISPOSITION
The appeal is dismissed. Costs on appeal are awarded to respondent Stephens.
/s/_________
ELLISON, J. WE CONCUR: /s/_________
PEÑA, Acting P.J. /s/_________
SMITH, J.
Retired judge of the Fresno Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------