Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG05240428
Sepulveda, J.
In this wrongful death action, plaintiffs and appellants, Wanda O’Gilvie, Sarina Marie O’Gilvie, Stephen Leshay O’Gilvie, and Kenneth O’Gilvie (collectively plaintiffs), purport to appeal from an order denying their petition to vacate the arbitration award, as well as from an earlier order compelling arbitration of their claims. The arbitration award resolved appellants’ medical malpractice claims arising from the death of Marcina Marie O’Gilvie in favor of defendants and respondents Kaiser Foundation Hospitals, Kaiser Foundation Health Plan, Inc., and The Permanente Medical Group, Inc. (Kaiser). We conclude that the orders appealed from are not appealable and dismiss the appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
Decedent died on December 29, 2000, after going into a diabetic coma. The underlying action arises from Kaiser’s medical care of decedent from 1984 to 2000. Prior to commencing the instant litigation against Kaiser, plaintiffs demanded arbitration of their claims in February 2004. Then in November and December 2005, while the arbitration was pending, plaintiffs filed two civil complaints against Kaiser, which were subsequently consolidated.
In February 2006, Kaiser moved to compel arbitration of plaintiffs’ consolidated claims. In opposition, plaintiffs argued, among other things, that the arbitrator had committed misconduct by continuing the first arbitration hearing. In reply, Kaiser asserted that plaintiffs had agreed to the continuance, and that the arbitrator acted well within his contractual discretion in continuing the hearing.
Prior to the hearing on Kaiser’s motion to compel arbitration, the arbitrator resigned because plaintiffs had failed to pay their share of his fees. A second arbitrator was appointed and promptly recused himself.
At the March 8, 2006 hearing on the motion to compel arbitration, the trial court granted Kaiser’s motion and gave the parties 30 days to agree on an arbitrator. The trial court further ordered that if the parties could not agree on an arbitrator within this time period, the court would appoint an arbitrator. Plaintiffs did not object to this procedure.
Kaiser proposed two arbitrators to plaintiffs’ counsel, but did not receive a response. Kaiser submitted two names to the trial court for its consideration; plaintiffs did not submit a list of arbitrators to the court. At an April 2006 status conference, the trial court, rather than selecting an arbitrator proposed by Kaiser, appointed retired Judge Demetrios Agretelis as the arbitrator. Plaintiffs did not object to the appointment of Judge Agretelis, but requested the court to reconsider its ruling compelling arbitration. The trial court denied the motion for reconsideration and ordered the parties to submit their claims to arbitration before Judge Agretelis.
Although the arbitration was set to commence in September 2006, the parties agreed to two continuances, which moved the hearing to May 2007. Among other things, Judge Agretelis found that the coroner’s report defeated plaintiffs’ central theory that the allegedly undiagnosed diabetes caused decedent to go into a coma and suffer a fatal heart attack, and that plaintiffs failed to prove either a breach of the standard of care or causation.
Approximately three months after the arbitration award, Kaiser moved to dismiss the pending consolidated civil action in light of the final arbitration award in its favor. Rather than oppose the motion to dismiss their civil action, plaintiffs moved to vacate the arbitration award. The trial court granted the motion to dismiss the action and denied the motion to vacate the arbitration award. The instant appeal followed.
II. DISCUSSION
Despite the somewhat convoluted procedural background, this appeal is easily resolved. We begin and end our analysis with Mid-Wilshire Associates v. O’Leary (1992) 7 Cal.App.4th 1450 (Mid-Wilshire). There, the appellate court considered the exact issue before us, to wit, the appealability of an order denying a motion to vacate an arbitration award. In dismissing the appeal, Mid-Wilshire held there is a difference between the dismissal of a petition to confirm, correct, or vacate an arbitration award and the denial of the same petition. (Id. at pp. 1454-1455.) The court explained that while Code of Civil Procedure section 1294 authorizes an appeal from an order dismissing a petition to confirm, correct, or vacate an arbitration award (id., at subd. (b)), the same cannot be said of an order denying a petition to vacate an arbitration award. (Mid-Wilshire, supra, at p. 1454.) Rather, “[s]uch an order may be reviewed 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.” (Ibid.)
All further statutory references are to the Code of Civil Procedure.
As Mid-Wilshire instructs, the distinction between the dismissal and the denial of a motion to vacate an arbitration award is more than a matter of mere semantics. (Mid-Wilshire, supra, 7 Cal.App.4th at pp. 1454-1455.) “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.” (Ibid.)
Here, as in Mid-Wilshire, there is no judgment confirming the arbitration award. Thus, the appeal from the order compelling arbitration and the order denying the motion to vacate the award must be dismissed. Nevertheless, appellants argue this court should construe the order denying their petition as an order dismissing the same. We decline the invitation.
As previously discussed, section 1294 makes an explicit distinction between an order denying a petition and one dismissing a petition. Moreover, plaintiffs’ argument is based on case law that construes the statutory language liberally to allow for appeals from orders not identical to those recited but similar in effect. (See Jordan v. Pacific Auto. Ins. Co. (1965) 232 Cal.App.2d 127, 129.) Mid-Wilshire refused to adopt this approach: “[A]n order dismissing a petition to vacate or correct on the ground that the respondent is not bound by the arbitration agreement results in a final disposition of the proceeding with respect to that party and is, therefore, directly appealable. On the other hand, an order denying a petition to vacate on substantive grounds, which are enumerated in the applicable statute (... § 1286.2), is not a final disposition and, therefore, is not directly appealable. [Citations.]” (Mid-Wilshire, supra, 7 Cal.App.4th at p. 1454, citing Jordan v. Pacific Auto. Ins. Co., supra, at p. 129.)
Similarly, we must decline plaintiffs’ request that we treat this appeal as a petition for a writ of mandate. “To treat the instant appeal as a writ application would obliterate that bright line [between appealable and nonappealable orders] and encourage parties to knowingly appeal from nonappealable orders, safe in the knowledge that their appeal will be ‘saved by the appellate courts.’ We cannot condone or encourage such practice.” (Mid-Wilshire, supra, 7 Cal.App.4th at p. 1456.) We are not persuaded by plaintiffs’ arguments to the contrary.
III. DISPOSITION
The appeal is dismissed. Kaiser is entitled to recover its costs on appeal.
We concur: Reardon, Acting P.J., Rivera, J.