Kirk v. Ratner

Filed 2/10/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
CHARLOTTE KIRK et al., B309880
Plaintiffs and (Los Angeles County
Appellants, Super. Ct. No. 20STCP02842)
v.
BRETT RATNER et al.,
Defendants and
Respondents.
APPEAL from an order of the Superior Court of
Los Angeles County, Christopher K. Lui, Judge. Dismissed.
Fagelbaum & Heller, Jerold Fagelbaum and Philip Heller
for Plaintiffs and Appellants Charlotte Kirk and Neil Marshall.
Lavely & Singer, Martin D. Singer, Michael E. Weinsten
and Allison S. Hart for Defendants and Respondents Brett
Ratner, Kevin Tsujihara, James Packer and Avi Lerner.
___________________________
Charlotte Kirk, an actress, using the pseudonym Melissa
Parker, entered into a confidential settlement agreement in
August 2017 with four entertainment industry executives, Brett
Ratner, Kevin Tsujihara, James Packer and Avi Lerner, using
the fictitious names Clark Grandin, Bruce Hamilton, Gregory
Kemp and Walter Nelson in the agreement and documents filed
in the superior court. The agreement contained an arbitration
clause.
The executives filed a demand for arbitration in June 2020,
naming Kirk (as Parker) and Neil Marshall (actual name), Kirk’s
fiancé, and two others as respondents, asserting claims for breach
of contract, interference with contract and civil extortion. The
executives obtained from an emergency arbitrator a preliminary
injunction prohibiting Kirk, Marshall and the other respondents
from disclosing confidential information as that term is defined in
the settlement agreement, including any disclosures in court
documents, and from initiating any lawsuit against the
executives in violation of the arbitration provisions in the
settlement agreement.
Kirk (as Parker) and Marshall filed a petition in superior
court to vacate the preliminary injunction. Because the
emergency arbitrator’s ruling was not an “award” within the
meaning of Code of Civil Procedure section 1283.4,1 the court
dismissed the petition for lack of jurisdiction. For the same
reason, we dismiss Kirk and Marshall’s appeal as taken from a
nonappealable order.2
1 Statutory references are to this code.
2 The settlement agreement obligated any party petitioning
to vacate the arbitrator’s award to seek an order sealing all
documents in the court file “to the greatest extent permissible by
2
law.” The superior court made the required findings under
California Rules of Court, rule 2.550 and granted motions by both
sides to seal all documents filed with the court and implicitly
approved the use of pseudonyms in court documents. While the
appeal was pending in Division Three of this court, the presiding
justice permitted appellants to file their appendix conditionally
under seal, subject to further ruling by the panel hearing the
case; and the parties used pseudonyms in their briefs
We notified the parties pursuant to California Rules of
Court, rule 8.46(f)(3) that, absent a showing of good cause, we
intended to unseal the entire record and use the true names of
the parties in our opinion. We observed the documents filed
under seal included newspaper and magazine articles that
identified the parties (including photographs), discussed the
underlying facts of the case and the parties’ dispute and
described the events that prompted the executives to initiate
arbitration. We suggested that, because the facts of the dispute
have become public, any justification for using pseudonyms or
sealing the record that may have existed no longer does.
(See H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 898
[“there is no justification for sealing records that contain only
facts already known or available to the public”].)
Kirk and Marshall, who challenge the validity of the
confidentiality provisions in the settlement agreement, said they
only filed the material under seal because they did not want the
executives to accuse them of violating the settlement agreement
and the preliminary injunction.
For their part, the executives first contended, incorrectly, if
the superior court’s order was not appealable, we would lack
jurisdiction to decide whether documents in the appellate record
should remain sealed. (See H.B. Fuller Co. v. Does, supra,
151 Cal.App.4th at p. 889 [“[t]his court is master of its own
files”].) The executives next argued the contractual provision to
keep the names of the parties and the terms of the agreement
secret overrode the right of public access. (See Cal. Rules of
3
FACTUAL AND PROCEDURAL BACKGROUND
1. The Confidential Settlement Agreement
Following two days of mediation in August 2017 Kirk,
Joshua Newton (using the pseudonym Matthew Waller) and the
executives entered into a confidential settlement agreement and
mutual release that fully resolved (with no admission of
wrongdoing) Kirk’s claims of sexual harassment, infliction of
emotional distress and defamation. In addition to payment of
substantial sums to Kirk, consideration for the settlement and
promise of confidentiality included the executives’ agreement to
invest in a film project to be written, directed and produced by
Newton, starring Kirk as the female lead.
The settlement agreement’s confidentiality provision
prohibited Kirk and Newton from disclosing, directly or
indirectly, “confidential information,” as defined in the
agreement, to any person or entity, including media
organizations or on Internet social media. “Confidential
information,” as defined, included the facts, circumstances,
Court, rule 2.550(d)(1).) While that might be true in some
instances (see Universal City Studios, Inc. v. Superior Court
(2003) 110 Cal.App.4th 1273, 1283), the widespread public
disclosure of the information in the news media vitiates any such
interest here because unsealing the record will no longer
prejudice the interest in confidentiality. (See Cal. Rules of Court,
rule 2.550(d)(3).) Acknowledging that fact, the executives also
argued the media stories had not disclosed all of the confidential
information and in some instances had described it inaccurately.
We invited counsel for the executives to propose narrowly tailored
redactions to protect such information. After reviewing their
submission, we authorize limited redactions in a separate order
filed concurrently with this opinion.
4
allegations and contentions giving rise to Kirk’s claims against
the executives; the facts, circumstances, existence and substance
of any encounter or communication between Kirk and any of the
executives; and the settlement agreement, its negotiation and
terms. The impermissible disclosure of confidential information
was to be considered a material breach of the agreement.
The parties agreed to arbitrate “any and all future disputes
or controversies of any kind or nature between the Parties,
including without limitation any claim [or] disputes regarding
validity, interpretation, enforcement or claimed breach of this
Agreement, however characterized . . . before JAMS under the
JAMS Comprehensive Arbitration Rules and Procedures . . . or
ADR pursuant to its rules, and California law, to the greatest
extent permitted by law.” Kirk and Newton acknowledged an
unauthorized disclosure of confidential information would cause
irreparable harm to the executives and agreed that, upon any
breach or threatened breach of the confidentiality provision, the
executives would be entitled to immediately obtain injunctive
relief from the arbitrator (ex parte issuance of a temporary
restraining order and a preliminary injunction) preventing the
disclosure (or further disclosure) of confidential information
pending the outcome of arbitration. Notwithstanding the
arbitration provision, the parties further agreed, without waiving
their right to arbitration, the executives could seek injunctive
relief in court to prevent a breach of the settlement agreement.
Several months after executing the settlement agreement,
the parties entered into a confidential amendment agreement in
which the executives promised to invest additional sums in the
motion picture being developed by Newton and Kirk and Newton
5
reaffirmed the confidentiality and arbitration provisions of the
settlement agreement.
2. The Demand for Arbitration and the Preliminary
Injunction
Because of ongoing disputes among the parties that
allegedly included threats by Kirk and others to disclose
confidential information, on June 12, 2020 the executives
initiated arbitration with JAMS, asserting claims of breach of
contract as to Kirk, Newton and John Cowan, an attorney
representing Kirk who had signed a nondisclosure agreement
accepting the confidentiality terms of the settlement agreement;
intentional interference with contract as to Marshall, who was
not a party to the settlement agreement; and civil extortion
against all four of them. Contemporaneously with their demand
for arbitration the executives filed an ex parte application for a
temporary restraining order and order to show cause
re preliminary injunction.
Following a telephonic hearing, an emergency arbitrator,
appointed pursuant to the JAMS rules identified in the
settlement agreement, issued a temporary restraining order
prohibiting Kirk, Newton, Cowan and Marshall from disclosing
any confidential information as defined in the settlement
agreement and from filing a lawsuit in any court against the
executives, and ordered Kirk, Newton, Cowan and Marshall to
show cause on July 6, 2020 why a preliminary injunction
containing the same prohibitions should not issue. Kirk and the
other respondents filed opposition papers.
The arbitrator issued a preliminary injunction on July 11,
2020 after a video hearing held several days earlier. The
arbitrator’s ruling enjoined Kirk, Newton, Cowan and Marshall
6
and any person acting on their behalf from disclosing confidential
information, including a disclosure in any document filed in
court, and from filing a lawsuit in any court in violation of the
arbitration provisions of the settlement agreement, the
confidential amendment to the settlement agreement, the
confidential nondisclosure agreement or a fourth agreement
referred to as the Duchess Agreement. The emergency arbitrator
declined to require the executives to post a bond.
3. The Petition To Vacate the Preliminary Injunction
Kirk and Marshall on September 4, 2020 filed a petition to
vacate the emergency arbitrator’s preliminary injunction,
initiating a new action in Los Angeles Superior Court.3 The
petition asserted as grounds to vacate the injunction that, prior
to issuance of the temporary restraining order, the emergency
arbitrator failed to make the full disclosures required by
section 1281.9, subdivision (a), and the California Rules of Court,
Ethics Standards for Neutral Arbitrators in Contractual
Arbitration, standard 7(d)(15) relating to facts that might cause a
person to reasonably entertain a doubt that the arbitrator would
be able to be impartial; the injunction violated section 1002,
subdivision (d), which prohibits enforcement of settlement
agreements that prevent disclosure of information regarding
claims of sexual harassment and, therefore, was contrary to
public policy and exceeded the emergency arbitrator’s authority;
and, as to Marshall, the arbitrator exceeded her authority
because Marshall, although a signatory of the Duchess
Agreement, was not a party to the settlement agreement and
3 Kirk and Marshall, using the Judicial Council’s optional
form ADR-106, indicated all names used for petitioners and
respondents, other than Marshall’s, were pseudonyms.
7
could not be compelled to arbitrate any disputes with the
executives.
The executives filed an opposition to the petition, arguing
the preliminary injunction did not constitute an “award” within
the meaning of section 1283.4 and the superior court thus lacked
jurisdiction to consider the petition. They also filed a response to
the petition, addressing the merits of Kirk and Marshall’s
arguments in support of vacating the injunction.
Following receipt of a reply memorandum from Kirk and
Marshall and a hearing on October 15, 2020, the superior court
ruled it lacked jurisdiction to consider the petition, relying
primarily on the decision of our colleagues in Division Two of this
court in Lonky v. Patel (2020) 51 Cal.App.5th 831 (Lonky). The
court denied the petition, stating it was “ordered dismissed
without prejudice to refiling once a final award is issued.”
Kirk and Marshall filed a timely notice of appeal.
DISCUSSION
1. Governing Law and Standard of Review
The parties’ settlement agreement specified arbitration
proceedings were to be conducted under California law. Thus,
the California Arbitration Act (CAA) (§ 1280 et seq.) governs the
issuance of arbitration awards, superior court review of awards
and appellate review of superior court orders and judgments
approving or disapproving awards.
Section 1283.4 defines an arbitrator’s “award” as a written
ruling that “include[s] a determination of all the questions
submitted to the arbitrators the decision of which is necessary in
order to determine the controversy.” “The issuance of an ‘award’
is what passes the torch of jurisdiction from the arbitrator to the
trial court.” (Lonky, supra, 51 Cal.App.5th at p. 843.)
8
Section 1285 authorizes a party to an arbitration “in which an
award has been made” to petition the superior court “to confirm,
correct or vacate the award.” Section 1286 provides the superior
court, if a petition has been properly served and filed, must
confirm the award as made, confirm it as corrected, vacate the
award or dismiss the proceeding.
Our jurisdiction to review superior court orders in
arbitration matters is defined by section 1294. That statute
provides an appeal may be taken 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 judgment.”
We independently review questions regarding our own
jurisdiction. (California Redevelopment Assn. v. Matosantos
(2011) 53 Cal.4th 231, 252.) In addition, we review questions of
statutory construction de novo. (California Building Industry
Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032,
1041; In re Tobacco II Cases (2009) 46 Cal.4th 298, 311;
see People v. The North River Ins. Co. (2021) 69 Cal.App.5th
1079, 1087 [when the pertinent facts are undisputed, we review
de novo both questions of jurisdiction and issues of statutory
interpretation].)
2. The Order Dismissing the Petition To Vacate the
Preliminary Injunction Is Not Appealable
The existence of an appealable order or judgment is a
jurisdictional prerequisite to an appeal. (Walker v. Los Angeles
County Metropolitan Transportation Authority (2005) 35 Cal.4th
15, 21; Jennings v. Marralle (1994) 8 Cal.4th 121, 126; Aixtron,
9
Inc. v. Veeco Instruments Inc. (2020) 52 Cal.App.5th 360, 384.)
A superior court’s order is generally appealable only when made
so by statute. (Griset v. Fair Political Practices Com. (2001)
25 Cal.4th 688, 696 [“[a] reviewing court has jurisdiction over a
direct appeal only when there is (1) an appealable order or (2) an
appealable judgment”; “[a] trial court’s order is appealable when
it is made so by statute”].)
Neither Kirk and Marshall nor the executives question the
appealability of the superior court’s order dismissing the petition
to vacate the preliminary injunction: All parties cite Maplebear,
Inc. v. Busick (2021) 26 Cal.App.5th 394 (Maplebear), which
distinguished this court’s decision in Judge v. Nijjar Realty, Inc.
(2014) 232 Cal.App.4th 619 (Judge) and held a superior court
order dismissing a petition to vacate for lack of jurisdiction was
an appealable order. (Maplebear, at p. 402.) Nonetheless, we
must raise the issue on our own initiative whenever a doubt
exists as to whether the superior court has entered an appealable
judgment or order: “[W]e have an independent obligation in this
as in every matter to confirm whether jurisdiction exists.”
(California Redevelopment Assn. v. Matosantos, supra, 53 Cal.4th
at p. 252; accord, Jennings v. Marralle, supra, 8 Cal.4th at p. 126;
see Olson v. Cory (1983) 35 Cal.3d 390, 398 [“since the question of
appealability goes to our jurisdiction, we are dutybound to
consider it on our own motion”].)
In Judge, supra, 232 Cal.App.4th 619 this court held the
superior court’s order vacating an interim arbitration award (a
“clause construction award” determining as a threshold matter
that class and representative claims were subject to arbitration)
was not appealable. (Id. at p. 622.) We explained, “Because the
clause construction award does not qualify as an ‘award’ under
10
section 1283.4, the trial court’s order is not an order vacating an
arbitration award, and it is not appealable.” (Id. at pp. 633-634.)
In Kaiser Foundation Health Plan, Inc. v. Superior Court (2017)
13 Cal.App.5th 1125 (Kaiser Foundation) we held a superior
court judgment confirming a “partial final award” issued by an
arbitration panel (determining issues of preemption and
exhaustion, while leaving unresolved the merits of the parties’
claims of underpayment and overpayment) was not appealable
because “the ‘award’ did not meet the section 1283.4 standards
for an award.” (Id. at p. 1131.) Again we explained, “Parties
generally have broad leeway to structure an arbitration as they
see fit, free from statutory constraints. . . . Parties’ requests for
judicial approval or disapproval of arbitration awards are,
however, subject to statutory constraints that limit when and
under what circumstances courts may review arbitrators’ rulings.
Those restrictions deprive trial courts of jurisdiction to review an
award that does not qualify as an award under section 1283.4
and appellate courts of jurisdiction to review on appeal a
judgment that does not qualify as a final judgment under
section 1294[, subdivision] (d).” (Ibid.)
In light of Judge and Kaiser Foundation, our jurisdiction to
consider the merits of Kirk and Marshall’s appeal turns on two
questions. First, is the arbitrator’s ruling granting a preliminary
injunction an award within the meaning of section 1283.4 even
though it left unresolved the merits of the parties’ claims?
Second, if it is not, is an order dismissing a petition to vacate an
arbitrator’s order that is not an award appealable, as the court
held in Maplebear, supra, 26 Cal.App.5th 394, even though a
11
superior court order granting the petition to vacate is not? We
answer both questions “no.”4
a. The arbitrator’s grant of a preliminary injunction is
not an award within the meaning of section 1283.4
Kirk and Marshall concede the arbitrator’s preliminary
injunction ruling, a provisional order leaving unresolved all
issues of liability and final relief for the parties, does not appear
to be an award within the meaning of section 1283.4, as that
statutory term was explained in Lonky, supra, 51 Cal.App.5th
831. Nonetheless, they contend we should deem as final for
judicial review purposes such an interim award of equitable
relief. Their arguments are unpersuasive.
Kirk and Marshall first point out, if the executives had
obtained a preliminary injunction from the superior court, the
order would have been immediately subject to review in this
court. But as Kirk and Marshall recognize, appellate review of a
preliminary injunction is expressly authorized by section 904.1,
subdivision (a)(6). (See County of San Diego v. State of California
4 We recognize our first question overlaps to a significant
extent with the issue raised by Kirk and Marshall’s appeal. If
the preliminary injunction ruling is not an award within the
meaning of section 1283.4, the superior court likely would not
have had jurisdiction to consider the petition to vacate.
(See Judge, supra, 232 Cal.App.4th at p. 634, fn. 12.) However,
as we explained in Kaiser Foundation, supra, 13 Cal.App.5th at
page 1146, whether an arbitrator’s order is an award for purposes
of the superior court’s jurisdiction to confirm or vacate it and
whether the ensuing superior court order is appealable (rather
than reviewable only by writ) are not identical questions, as
illustrated by the decision in Hightower v. Superior Court (2001)
86 Cal.App.4th 1415.
12
(1997) 15 Cal.4th 68, 110 [“order granting the preliminary
injunction was ‘immediately and separately appealable’ under . . .
section 904.1, subdivision (a)(6)”].) Whether an arbitrator’s
preliminary injunction, which is not enforceable as a court order,
may be immediately reviewed by a court is an entirely different
question, which depends on the proper interpretation of the
governing provisions of the CAA, not section 904.1.
(Cf. Gastelum v. Remax Internat., Inc. (2016) 244 Cal.App.4th
1016, 1022 [“there is a general prohibition against [appealing]
nonfinal interlocutory orders in section 904.1, subdivision (a)(1)
which applies in the arbitration context”].)
Next, Kirk and Marshall argue, although the court in
Lonky explained a ruling that is not an award within the
meaning of section 1283.4 is not subject to confirmation,
correction or vacation by the superior court (Lonky, supra,
51 Cal.App.5th at p. 844), Lonky also recognized that the court of
appeal in Hightower v. Superior Court (2001) 86 Cal.App.4th
1415 (Hightower) held, in appropriate circumstances, successive
awards may be issued by an arbitrator and the absence of the
final award does not necessarily preclude judicial review of the
interim award. (Lonky, at p. 846.) Hightower does not help Kirk
and Marshall.
The dispute in Hightower concerned implementation of a
buy-sell provision in an agreement between two 50 percent
shareholders of a corporation. The arbitrator issued a partial
final award that gave one shareholder the right to obtain
financing to buy the shares of the other, reserving jurisdiction to
determine issues that might arise if the option was exercised.
(Hightower, supra, 86 Cal.App.4th at pp. 1426-1428.) The
superior court denied the losing shareholder’s petition to vacate
13
the award. The court of appeal—in a writ proceeding—
determined the superior court had jurisdiction to decide the
petition, holding the award, although not final, satisfied the
requirements of section 1283.4 because it “determined all issues
that are necessary to the resolution of the essential dispute
arising from Hightower’s breach. . . . Nothing remains to be
resolved except those potential and conditional issues that
necessarily could not have been determined . . . when the [award]
was issued.” (Hightower, at p. 1439.)
As explained in Lonky, supra, 51 Cal.App.5th at page 845,
what Hightower teaches is that, “in the context of a series of
rulings . . . a particular ruling is an ‘award’ only if that ruling
(1) ‘determine[s] all issues that are necessary to the resolution’ of
‘“the controversy”’ being subject to arbitration, and (2) leaves
unresolved only those ‘issues’ that are ‘potential,’ ‘conditional’ or
that otherwise ‘could not have been determined’ at the time of the
ruling.” Our analysis in Kaiser Foundation similarly emphasized
the very limited nature of the Hightower decision: “The
arbitrator in Hightower resolved all the issues necessary as of the
date of the award to determine the parties’ controversy regarding
the breach of the shareholder agreement and the appropriate
remedy for the breach. The issues left open for resolution in a
subsequent award simply could not have been decided as part of
the partial final award because their nature and scope were
uncertain as of the award date.” (Kaiser Foundation, supra,
13 Cal.App.5th at p. 1149.) Here, in contrast to Hightower, no
part of the controversy between Kirk and Marshall, on the one
hand, and the executives, on the other, was resolved by the
preliminary injunction. The issues left open were neither
14
potential nor conditional based on events yet to occur; they were
known and capable of being resolved.
Kirk and Marshall attempt to erase this clear distinction
between the preliminary injunction here and the award in
Hightower by arguing that whether interim equitable relief
should be granted was a discrete matter; all issues necessary for
resolution of that question were determined; and the remaining
disputed matters could not be decided with the preliminary
injunction ruling because discovery and an evidentiary hearing
were necessary for the arbitrator to rule on the merits of the
parties’ controversy. We rejected a substantially similar
argument in Kaiser Foundation, where the parties argued the
issues of preemption and exhaustion, decided in the initial phase
of the arbitration proceeding, were, in effect, raised and
completely resolved in a separate action for declaratory relief
before the arbitration panel. (Kaiser Foundation, supra,
13 Cal.App.5th at p. 1140.) Because the parties did not, in fact,
initiate a separate arbitration proceeding for the preemption and
exhaustion issues, however distinct from the underlying merits
they may have been, the request that the arbitrators decide them
first, we held, did not convert an interlocutory ruling into a final
one subject to judicial review. (Id. at p. 1146 [“The text of
section 1283.4 is clear: It specifies that an award must resolve
the parties’ controversy, not a question within the controversy”].)
Interim equitable relief, issued as part of an ongoing arbitration
proceeding (indeed, in aid of, and to preserve, the ability of the
arbitrator to resolve the dispute) is no less interlocutory and
nonreviewable. (See Lonky, supra, 51 Cal.App.5th at p. 847
[“What matters is whether the ruling ‘resolve[d] the parties’
controversy, not a question within the controversy.’ [Citation.]
15
Were the rule otherwise, almost every ruling would be an ‘award’
because almost every ruling decides the issue it was called upon
to decide”].)5
In a final argument for immediate judicial review of the
preliminary injunction, after observing that no published
California case has considered the precise question presented
here—that is, judicial review of an arbitrator’s award of interim
equitable relief— Kirk and Marshall urge us to follow analogous
federal law on the issue (while acknowledging we are not bound
to do so), which treats such orders as sufficiently final for the
district courts to confirm and enforce them. The federal policy,
however, is based on the provisions of the Federal Arbitration Act
(FAA) (9 U.S.C. § 1 et seq.), which differ from those in the CAA
by allowing for immediate review of certain interlocutory or
partial awards. (See Judge, supra, 232 Cal.App.4th at p. 631
[“There are differences between the two provisions. For example,
Section 16 of the FAA states that certain interlocutory orders are
appealable; section 1294 does not”].) The question before us is
not whether that policy is sound, as Kirk and Marshall suggest,
but whether such resort to the courts is permissible in light of the
limited scope of judicial review authorized by the CAA. For the
reasons discussed, it is not. (See generally Moncharsh v. Heily &
Blase (1992) 3 Cal.4th 1, 10 [“the decision to arbitrate grievances
evinces the parties’ intent to bypass the judicial system and thus
5 Similarly in Judge we explained that, unlike the partial
final award in Hightower, the clause construction award, while
arguably distinct from the merits of the parties’ dispute, did not
“merely reserve potential or conditional issues relating to
implementation of a remedy.” (Judge, supra, 232 Cal.App.4th at
p. 636.)
16
avoid potential delays at the trial and appellate levels”]; Kaiser
Foundation, supra, 13 Cal.App.5th at p. 1150 [“it has long been
recognized that parties typically choose arbitration precisely to
avoid ‘the complications of traditional judicial review’”].)
b. The superior court’s order dismissing Kirk and
Marshall’s petition lacks the finality required for it to
be appealable
Quoting section 1294, subdivision (c), which makes
appealable “[a]n order vacating an award unless a rehearing in
arbitration is ordered,” we observed in Judge, supra,
232 Cal.App.4th at page 633, “at first blush,” a superior court’s
order vacating an arbitrator’s clause construction award without
ordering a rehearing would appear to be appealable. However,
referring to case law holding an order confirming an interim
arbitration award is not appealable under sections 1287.4 and
1294, subdivision (d)6—that is, where the merits of the parties’
underlying controversy have not been fully resolved—we
explained the appeal then before us raised the question whether
that same finality requirement applied to all orders listed in
section 1294, including an order vacating a nonfinal arbitration
award. We held it did. (Judge, at pp. 633-634.)
“There are good reasons for applying a finality requirement
to orders listed in section 1294,” we stated. (Judge, supra,
232 Cal.App.4th at p. 634.) “Without such a requirement, a wide
variety of orders vacating (or dismissing petitions to vacate)
interim arbitration awards would be appealable, which would
6 Section 1287.4 provides, “If an award is confirmed,
judgment shall be entered in conformity therewith.”
Section 1294, subdivision (d), as discussed, makes appealable a
judgment confirming an arbitration award.
17
interfere with the ‘“efficient, streamlined procedure[]”’ that is
supposed to be arbitration’s ‘fundamental attribute.’” (Ibid.)
In Kaiser Foundation, supra, 13 Cal.App.5th at page 1139,
we reiterated the holding of Judge that the finality requirement
of earlier case law applied to all orders listed in section 1294, not
just to judgments entered under section 1294, subdivision (d),
and that superior court orders confirming, vacating or dismissing
petitions directed to interim and nonfinal arbitration awards
were not appealable.7 Because the emergency arbitrator’s
preliminary injunction ruling is not an award within the meaning
of section 1283.4 and is anything but final, Kirk and Marshall’s
appeal from the superior court’s dismissal of their petition to
vacate that interim order must be dismissed as taken from a
nonappealable order.
We recognize the court in Maplebear, supra, 26 Cal.App.5th
394 reached a contrary conclusion, declining to follow the full
reach of Judge and holding an order dismissing a petition to
7 Even Hightower, supra, 86 Cal.App.4th 1415, which
recognized an arbitrator was authorized to issue incremental
awards and held under certain limited circumstances such an
incremental award could be confirmed by the superior court, did
not hold the resulting nonfinal order was appealable. Rather,
reviewing the superior court’s interlocutory judgment in a writ
proceeding, the court of appeal explained, “Appellate relief from
such judgment, as is true with respect to interlocutory judgments
generally, would be available by application for an extraordinary
writ. The granting of appellate relief at this stage, however,
would, as in all such cases, require a proper showing of
justification for immediate appellate intervention; in other words,
the aggrieved party would have to make a demonstration as to
why an appeal from the judgment confirming the ultimate final
award would not be adequate.” (Id. at p. 1440.)
18
vacate a partial final award regarding class arbitration for lack of
jurisdiction was appealable. (Maplebear, at pp. 401-402.)8
Noting the superior court in Judge had reached the merits of the
arbitrator’s interim ruling, the Maplebear court stated, “Our case
is different. Here, we confront an appeal from a trial court order
that dismissed a petition to vacate on the ground of no trial court
jurisdiction. We conclude that the trial court order is appealable
under section 1294, subdivision (b), as an order dismissing a
petition to vacate an arbitration award.” (Id. at p. 402.) Nothing
more was said. In particular, the court left unexplained why an
order granting or dismissing a petition to vacate an interim
award on the merits was not appealable notwithstanding the
literal language in section 1294, subdivisions (b) and (c), but an
order dismissing the same petition for lack of jurisdiction was.
In fact, the distinction identified in Maplebear makes little
sense. By this reasoning, if the superior court fails to recognize
the limits of its jurisdiction and grants a petition to vacate a
nonfinal award that it ought not to have even considered—as was
the case in Judge—the erroneous order is not appealable. But if
8 The primary challenge to appealability in Maplebear,
supra, 26 Cal.App.5th 394 was that the superior court had
denied, rather than dismissed, the petition to vacate the
arbitrator’s interim award, an order not listed as appealable in
section 1294. (Maplebear, at pp. 400-401.) The court of appeal
rejected that argument, reasoning the CAA does not contemplate
denial of a petition to vacate an award in the circumstances
presented by the case before it, and construed the superior court’s
order as dismissing the petition to vacate an award. (Id. at
p. 401.) The superior court here used both verbs, dismissing, as
well as denying, Kirk and Marshall’s petition to vacate the
preliminary injunction.
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the superior court properly understands that interim rulings by
an arbitrator are not reviewable until the final award is entered
and dismisses a premature petition to vacate, that entirely
correct jurisdictional ruling is appealable. Nothing in the
governing statutory language, let alone public policy encouraging
arbitration as a speedy and relatively inexpensive method of
dispute resolution with limited judicial intervention, supports
that outcome.
We adhere to the holding and rationale of Judge and
dismiss the appeal.
DISPOSITION
The appeal is dismissed. The parties are to bear their own
costs in this proceeding.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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