Opinion
G055436
10-30-2018
PETER KOTE, Plaintiff and Appellant, v. JASON A. BLONSKA et al., Defendants and Respondents.
Law Offices of Teresa Gorman, Teresa Gorman and Steven Giammichele for Plaintiff and Appellant. Slovak Baron Empey Murphy & Pinkney, H. Neal Wells III, Charles L. Gallagher and Wendy S. Dowse for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2014-00759639) OPINION Appeal from a judgment of the Superior Court of Orange County, Kim R. Hubbard, Judge. Motion to dismiss appeal granted. Law Offices of Teresa Gorman, Teresa Gorman and Steven Giammichele for Plaintiff and Appellant. Slovak Baron Empey Murphy & Pinkney, H. Neal Wells III, Charles L. Gallagher and Wendy S. Dowse for Defendants and Respondents.
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Plaintiff and appellant Peter Kote (plaintiff), as trustee of a trust, and defendant and respondent Randolf W. Katz (Katz) arbitrated objections Katz made to an accounting filed by Kote. Kote filed a petition to correct or vacate the award (Petition to Vacate). Katz filed an objection to the Petition to Vacate and, with defendant and respondent Jason A. Blonska (Blonska; together with Katz, defendants), the successor trustee, filed a petition to confirm the award (Petition to Confirm). The court issued an order denying the Petition to Vacate and confirmed the award but the record does not reflect a judgment was ever entered. Plaintiff's notice of appeal stated he was appealing a "judgment" entered pursuant to Code of Civil Procedure section 1294, subdivision (d) (all further statory references are to this code). But again there is no judgment in the record.
Defendants filed a motion to dismiss this appeal as premature based on the fact no judgment was ever entered. According to the declaration filed in support of the motion, after the court confirmed the awards defendants submitted and served a proposed judgment, which the court never signed.
When defendants scheduled a judgment debtor examination of plaintiff, he filed an ex parte motion to vacate the debtor examination, claiming the awards were "not a money judgment" (italics omitted) and that the notice of appeal stayed enforcement. The court granted the motion to vacate on the ground the "underlying order" on which the debtor examination was based was stayed until the appeal was decided.
Soon thereafter defendants' counsel proposed the parties stipulate to enter judgment to save the premature appeal. Plaintiff's lawyer declined to do so, claiming his appeal from the order denying the petition to vacate the arbitration award was proper.
A party may not appeal from an order denying a petition to vacate or granting a petition to confirm an arbitration award. (§ 1294, subd. (d); Ahdout v. Hekmatjah (2013) 213 Cal.App.4th 21, 30.) A judgment on the order must be entered. (Cummings v. Future Nissan (2005) 128 Cal.App.4th 321, 326-327 ["This is a fundamental appellate principle"].)
Section 1294 provides: "An aggrieved party may appeal from: [¶] (a) An order dismissing or denying a petition to compel arbitration. [¶] (b) An order dismissing a petition to confirm, correct or vacate an award. [¶] (c) An order vacating an award unless a rehearing in arbitration is ordered. [¶] (d) A judgment entered pursuant to this title. [¶] (e) A special order after final judgment." --------
Nevertheless, plaintiff claims there is authority allowing him to appeal from the order confirming the arbitration award. But no recent case has properly allowed appeal from an order confirming an arbitration award or denying a petition to vacate an arbitration award without a judgment. A number of the cases plaintiff quotes refer to an appeal from a judgment confirming the award. (E.g., Law Offices of David S. Karton v. Segreto (2009) 176 Cal.App.4th 1, 3; Mid-Wilshire Associates v. O'Leary (1992) 7 Cal.App.4th 1450, 1454, 1455.) In fact, the latter case specifically holds an order denying a petition to vacate is not appealable; a judgment is required. (Mid-Wilshire Associates v. O'Leary, at p. 1455.)
Further, some of the cases that refer to appeal from an order seem to result from imprecise language or are just incorrect. For example Thriftimart, Inc. v. Superior Court (1962) 202 Cal.App.2d 421 cites section 1294 for the proposition that an order confirming an arbitrator's award is appealable. (Id. at pp. 424-425.) But the statute does not bear that out.
Likewise, Cummings v. Future Nissan, supra, 128 Cal.App.4th 321 states a "party resisting arbitration may seek review of the ruling on appeal from an order that confirms the award." (Id. at p. 329.) But the case on which Cummings relies, Abramson v. Juniper Networks, Inc. (2004) 115 Cal.App.4th 638, does not deal with an order confirming an arbitration award but instead an order compelling arbitration. (Id. at p. 648.) And it states such an order may be reviewed "on appeal from the final judgment." (Ibid.) Further, as noted above, Cummings specifically held an appeal may not be taken from an order but only a judgment confirming an arbitration award. (Cummings v. Future Nissan, supra, 128 Cal.App.4th at p. 326.)
A previous iteration of section 1294, former section 1293, allowed "an appeal from 'an order confirming, modifying, correcting or vacating an award, or from a judgment upon an award, as from an order or judgment in an action.'" (Corbett v. Petroleum Maintenance Co. (1953) 119 Cal.App.2d 21, 22.) But that section was repealed "[e]ffective September 15, 1961 chapter 461, section 1 of the Statutes of 1961 (p. 1540) repealed title 9 (commencing with § 1280) of part 3 of the Code of Civil Procedure, the entire arbitration statute, and enacted a new title 9 on the same subject." (Hohn v. Hohn (1964) 229 Cal.App.2d 336, 338.) In Cummings v. Future Nissan, supra, 128 Cal.App.4th 321 the court noted the plaintiff was relying on "outdated authority permitting an appeal in the absence of a judgment, because the current statute no longer provides for this option." (Id. at p. 327 & fn. 5.)
Plaintiff's reliance on section 680.230 that "'Judgment' means a judgment, order, or decree entered in a court of this state" is misplaced. In the context of confirming an arbitration award, an order and a judgment are not equivalent.
Plaintiff cites section 1287.4, which states, "If an award is confirmed, judgment shall be entered in conformity therewith," claiming it "makes the law regarding civil judgments applicable to arbitration." We do not understand this argument. If anything section 1287.4 works against plaintiff. And it does not mean entry of judgment is self-executing.
Therefore, we grant defendants' motion to dismiss the appeal. Defendants are entitled to costs on appeal.
THOMPSON, J. WE CONCUR: ARONSON, ACTING P. J. IKOLA, J.