Opinion
NOT TO BE PUBLISHED
Appeals from a judgment and a postjudgment order of the Superior Court of Orange County No. 30-2008 00104181, Gregory Munoz, Judge.
Newport Law Group and David T. Sanford for Defendant and Appellant.
Mulcahy Reeves, James M. Mulcahy and Rex T. Reeves for Plaintiff and Respondent.
OPINION
IKOLA, J.
Defendant Yek, Incorporated appeals from a judgment confirming an arbitration award for plaintiff Mustard Franchise Corporation. It contends the court wrongly construed plaintiff’s application for a preliminary injunction as a petition to confirm the arbitration award. Defendant further contends the court wrongly issued an injunction directing it to transfer possession of its franchised restaurant to plaintiff without requiring it to post a bond and without the consent of its landlord.
We affirm. The court permissibly treated the preliminary injunction application as a petition to confirm, properly confirmed the arbitration award, and rightly issued a permanent injunction without requiring a bond.
Defendant also appeals from an order granting plaintiff a writ of possession. It contends its pending appeal from the judgment confirming the arbitration award stayed enforcement of that judgment. But an appeal from a judgment directing delivery of possession of real property does not stay enforcement of the judgment, unless the appellant posts an undertaking. Defendant failed to do so. We affirm.
FACTS
Defendant owned a franchise of plaintiff’s restaurant chain. After arbitration pursuant to their franchise agreement, the arbitrator found plaintiff was entitled to terminate defendant’s franchise.
Plaintiff informed defendant it would exercise its contractual rights to (1) purchase the franchise back from defendant, (2) take immediate possession of the restaurant, and (3) operate the restaurant on defendant’s behalf pending the sale. Defendant refused to turn over possession of the restaurant. It claimed doing so would violate its lease. Plaintiff sought a declaration from the arbitrator regarding its right to possession of the restaurant.
On March 13, 2008, the arbitrator ruled plaintiff was entitled to immediate possession of the restaurant. The ruling provided, “[Defendant] is hereby ordered to give immediate possession of the premises to [plaintiff] to operate the franchised business on behalf of [defendant]. Providing such possession and permission to operate the franchised business on behalf of [defendant] does not, in the arbitrator’s view, amount to an assignment or sub-letting of the premises by [defendant], nor has [defendant] identified any provision of the lease that would be violated by granting such possession.” Nonetheless, defendant continued operating the restaurant under a new name.
Six days later, plaintiff filed a breach of contract action against defendant and applied for a temporary restraining order (TRO) and an order to show cause (OSC) re preliminary injunction. The court issued the TRO and set a hearing on the OSC for April 2, 2008.
The day before the hearing, the court posted a tentative ruling stating it would construe the OSC as a petition to confirm the arbitration award. The tentative ruling further stated the court intended to grant the petition and order defendant to turn over immediate possession of the restaurant to plaintiff. The same day, defendant applied ex parte for an order continuing the OSC hearing and setting an evidentiary hearing on its claim the franchise agreement was unenforceable.
On the morning of the hearing, the parties appeared on defendant’s ex parte application. The court heard argument, and continued the hearing until the afternoon. It then heard argument on plaintiff’s OSC (deemed a petition to confirm) and further argument on defendant’s ex parte application. It confirmed the arbitration award and denied the ex parte application.
The court entered judgment for plaintiff accordingly. The judgment provided, “[Defendant] is hereby ordered to give immediate possession of the premises... to [plaintiff] to operate the franchised business on behalf of [defendant] as provided in section 10.4(f)(v) of the Franchise Agreement.”
A week after judgment was entered, defendant appealed without posting an undertaking. The next day, plaintiff applied ex parte for a writ of possession and an order shortening time for the hearing on the writ. Defendant filed an opposition to the application. The court issued an order shortening time and setting a briefing schedule. Defendant filed an opposition brief the day before the hearing, 12 days late. The court granted plaintiff’s application and directed the clerk to issue a writ of possession. Defendant appealed from this order. We consolidated the two appeals.
DISCUSSION
The Court Did Not Err by Confirming the Arbitration Award
Defendant concedes the merits of the initial arbitration award allowing plaintiff to terminate the franchise. It states in its opening brief, “For purposes of this appeal, [defendant] does not attack the findings or conclusions of the Interim [Arbitration] Award or findings resulting from that arbitration proceeding.” It instead challenges the order confirming the arbitrator’s March 13, 2008 ruling that plaintiff was entitled to immediate possession of the restaurant.
The arbitrator used the term “Interim” loosely. The ruling decided the only issues pending in the arbitration — plaintiff’s right to terminate the franchise agreement and defendant’s claim to rescind the franchise agreement. The arbitrator stated the “Interim Award [would] be subject to immediate confirmation and enforcement by any court of competent jurisdiction.” The award was interim only in that it reserved the parties’ right to request “further proceedings.” Plaintiff requested such proceedings when it sought a declaration regarding its right to possession. The resulting March 13, 2008 ruling on possession was, in any meaningful sense, final. In supplemental briefing, the parties agree the order confirming the arbitration award is appealable. So do we. (Code Civ. Proc., §§ 1294, subd. (d) [judgment on arbitration petition is appealable], 904.1, subd. (a)(1) [judgment is appealable].) All further statutory references are to the Code of Civil Procedure.
At the outset, defendant asserts the court erred by deeming the OSC to be a petition to confirm the award. Yet defendant acknowledges the court may “construe a motion bearing one label as a different type of motion” because the “‘nature of the motion is determined by the nature of the relief sought, not by the label attached to it.’” (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193.) The relief plaintiff sought in its OSC was an order directing defendant to turn over possession of the restaurant. Plaintiff relied upon the arbitration award, whereby the arbitrator had determined the merits of the dispute and found plaintiff was entitled to immediate possession. Plaintiff thus sought confirmation of the arbitration award. The court logically construed the OSC to be a petition to confirm that award.
Nonetheless, defendant asserts the court violated timing rules by construing the OSC as a petition to confirm. A party may not file or serve a petition “until at least 10 days after service of the signed copy of the award upon the petitioner.” (§ 1288.4.) The arbitrator issued the possession order on March 13, 2008, and plaintiff filed the TRO and OSC ex parte applications on March 19, 2008, only six days later.
But defendant shows no prejudice from the early filing. It repeatedly opposed the applications on the merits of turning over possession. Defendant filed written opposition to the ex parte applications on March 20, 2008, contending (1) defendant could not turn over possession without violating its lease, (2) plaintiff was suffering no harm, and (3) plaintiff had not confirmed the arbitration award. He filed further written opposition to the OSC on March 26, 2008, contending the franchise agreement was unenforceable. Six days later, the court posted its tentative ruling construing the OSC as a petition to confirm. The next day, defendant appeared at the hearing and argued the merits of the petition. Defendant thus had ample time to seek review or clarification from the arbitrator concerning its March 13 order, as well as to prepare opposition to the OSC/petition to confirm. Defendant does not show how the record would differ had plaintiff filed its OSC on March 23 instead of March 19.
Defendant further contends the court wrongly precluded it from challenging plaintiff’s entitlement to an injunction by deeming the OSC to be a petition to confirm. But the arbitrator had already determined plaintiff was entitled to immediate possession. The court confirmed that determination, as it must unless defendant shows grounds for correcting or vacating the award. (See § 1286; see also Glassman v. McNab (2003) 112 Cal.App.4th 1593, 1598.) Defendant asserts no such grounds, other than the arbitrator’s purported lack of authority to issue an injunction. Defendant misreads the franchise agreement, which simply preserves the parties’ rights to seek a preliminary injunction from the court pending arbitration. The franchise agreement allows the arbitrator to make the final determination on plaintiff’s right to immediate possession of the restaurant, which the court may confirm. But it does not give defendant what it seeks — a trial de novo on the issue of possession.
Section 11.8 of the franchise agreement provides, “This arbitration clause does not deprive either party of any right it may otherwise have to seek provisional injunctive relief from a court of competent jurisdiction.” Section 11.9 provides, “[I]f [plaintiff] can prove to a court of competent jurisdiction that there is a substantial likelihood of [defendant’s] breach or threatened breach of any of the terms of this Agreement, [plaintiff] will be entitled to an injunction restraining the breach... until a final determination is made by an arbitrator.” Section 10.4(f)(v) provides, “Upon [plaintiff’s] written election to buy the franchised business, [it] [has] the right to immediate possession and may seek provisional relief from any court of competent jurisdiction to enforce this right.”
Changing tacks, defendant contends the court wrongly ordered it to turn over possession to plaintiff without requiring plaintiff to post a bond. It relies upon section 529, which provides, “On granting an injunction, the court... must require an undertaking on the part of the applicant to the effect that applicant will pay to the party enjoined any damages... the party may sustain by reason of the injunction, if the court finally decides that the applicant was not entitled to the injunction.” As the final phrase suggests, this section governs only preliminary injunctions, which are issued “to maintain the status quo pending trial on the merits.” (DVD Copy Control Assn., Inc. v. Bunner (2004) 116 Cal.App.4th 241, 249.) The court did not issue a preliminary injunction to maintain the status quo pending a final adjudication. It entered judgment directing defendant to turn over immediate possession of the restaurant to plaintiff. This constitutes a permanent injunction. “‘A permanent injunction is a determination on the merits that a plaintiff has prevailed [against the defendant] and that equitable relief is appropriate.’” (City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1293.) Section 529 requires no bond in this case. “We cannot order any bond on the issuance of the permanent injunction after final judgment....” (Shahen v. Superior Court (1941) 46 Cal.App.2d 187, 189.)
Finally, defendant contends the court wrongly adjudicated its landlord’s rights. It claims its lease prohibits it from transferring its possessory rights to anyone without the landlord’s consent. The arbitrator rejected this claim in his March 13, 2008 ruling. “[I]t is the general rule that, with narrow exceptions, an arbitrator’s decision cannot be reviewed for errors of fact or law.” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 11.) Moreover, “a party to an arbitration may not circumvent the 100-day time requirement in which to seek the vacation of an award by attempting to raise his or her objections to the award in an appeal from the judgment entered following an order of confirmation.” (Louise Gardens of Encino Homeowners’ Assn., Inc. v. Truck Ins. Exchange, Inc. (2000) 82 Cal.App.4th 648, 659.)
Enforcement of the Judgment Was Not Stayed Pending Appeal
Defendant separately appeals from the May 8, 2008 order issuing a writ of possession to plaintiff. It claims its April 10, 2008 notice of appeal from the judgment confirming the arbitration award stayed the case pending appeal. It relies upon section 916, subdivision (a), which provides in part, “[T]he perfecting of an appeal stays proceedings in the trial court upon the judgment... including enforcement of the judgment....” But it overlooks the limiting clause at the start of section 916, subdivision (a): “Except as provided in Section 917.1 to 917.9....”
Section 917.4 exempts judgments transferring possession of real property from the general stay provision of section 916. It provides, “The perfecting of an appeal shall not stay enforcement of the judgment... if the judgment... appealed from directs the... delivery of possession of real property which is in the possession or control of the appellant... unless an undertaking in a sum fixed by the trial court is given....” (§ 917.4.) The judgment directs defendant to deliver possession of the restaurant to plaintiff, yet defendant did not post any undertaking. Thus, the appeal from the judgment confirming the arbitration award did not stay enforcement of that judgment.
DISPOSITION
The judgment and postjudgment order are affirmed. Plaintiff shall recover its costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., MOORE, J.