Moore v. Bamboo Retreats CA2/7

Filed 7/19/21 Moore v. Bamboo Retreats CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
MESHAK MOORE, B301641
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC671043)
v.
BAMBOO RETREATS, LLC,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Mark V. Mooney, Judge. Affirmed with
directions.
Boren, Osher & Luftman, Jeremy J. Osher, and Aaron M.
Gladstein, for Defendant and Appellant.
MyBedBugLawyer, Brian J. Virag, and Luiza Patrikyan,
for Plaintiff and Respondent.
___________________________
INTRODUCTION
Bamboo Retreats, LLC appeals from an order denying a
motion to remand this case to arbitration, where an arbitrator
had been hearing claims by Meshak Moore against Bamboo.
Because the trial court did not have jurisdiction to hear the
motion, we affirm the order denying it. But we have a few more
things to say.
FACTUAL AND PROCEDURAL BACKGROUND
A. Moore Sues Bamboo, and the Trial Court Grants
Bamboo’s Motion To Compel Arbitration
In August 2017 Moore filed this action against Bamboo,
alleging that in July 2015 he leased an apartment or a house
from Bamboo for two months pursuant to a written lease and
that the premises were infested with bed bugs. Moore alleged the
bedbugs “latched onto [him] while he slept, sucked his blood until
they were gorged, and resist[ed] eradication.” Moore alleged he
suffered “[s]evere skin rash and personal injuries of the entirety
of the body”; damage to his “furniture, clothing and personal
belongings”; and “insect bites, sleeplessness, shame,
embarrassment, inconvenience, humiliation, grief, anxiety and
other symptoms.” Moore asserted causes of action for breach of
the warranty of habitability, negligence, nuisance, intentional
infliction of emotional distress, breach of contract, and breach of
the covenant of quiet enjoyment.
The lease included an arbitration provision, which stated:
“I agree that any dispute arising from or relating to a claim for
personal injury which is directly or indirectly related to, or
2
arising from a condition of the leased premises or common areas,
or any event there on [sic], shall be resolved solely by arbitration
conducted by the American Arbitration Association.” The lease
identified the “guests” as, and was signed in London by, Chase
Fontaine and King Tut.1
In October 2017 Bamboo filed a motion to compel
arbitration.2 Bamboo argued that the Federal Arbitration Act
(FAA) applied and that the arbitration provision “plainly
embraces all of [Moore’s] claims.” Bamboo also argued “there will
be no issues for the Court to decide once this case is submitted to
arbitration.” Moore opposed the motion, arguing, among other
things, that Bamboo waived its right to arbitration, that the
arbitration agreement did not apply to all of his causes of action,
and that the arbitration agreement was unconscionable. Bamboo
argued the arbitrator should decide the issue of waiver.
On January 26, 2018 the trial court granted Bamboo’s
motion to compel arbitration. The court ruled: “The court finds
that an arbitration agreement exists and that it is governed by
the Federal Arbitration Act and as such any objections to the
arbitration agreement or defenses of waiver must be decided by
the arbitrator. [¶] . . . [¶] This case is ordered stayed.” The court
set a hearing on the status of the arbitration for July 25, 2018.
1 Apparently, Chase Fontaine is a fictitious or “stage” name
for Moore, who eventually filed a document admitting he and
Chase Fontaine “are one and the same person.” The true identity
of King Tut remains a mystery.
2 There were some discussions in November 2016 and
August 2017 about arbitrating the dispute, but those discussions
ended with counsel for Moore’s August 9, 2017 email, which in its
entirety stated, “There is nothing to talk about.”
3
B. The Parties Drag Their Collective Feet in the
Arbitration
Moore did not do anything for almost five months. Finally,
on July 12, 2018, with only two weeks until the status conference
in court, counsel for Moore wrote counsel for Bamboo: “We would
like to get this case going. We would like to use an arbitrator
from Benchmark. Who would you like to use in this case?”
Counsel for Bamboo subsequently advised the court that, even
though Moore had proposed using an alternative dispute provider
other than the American Arbitration Association (AAA), counsel
for Bamboo would “continue to meet and confer with [counsel for
Moore] in this regard.” Counsel stated that Bamboo’s “inclination
is to comply with the terms of the arbitration agreement” (i.e.,
select an arbitrator from the AAA, not from another provider).
On July 25, 2018 the court continued the status conference.
In July 2018 Moore filed a demand for arbitration with the
AAA, but according to Bamboo, under the wrong rules. In
October 2018 Moore refiled his demand for arbitration under
different rules.
At some point the AAA appointed an arbitrator; Moore
asserts this occurred on or about December 10, 2018, but he does
not cite any, and there is no, evidence in the record to verify the
date of appointment. Moore also suggests Bamboo delayed
participating in the arbitration and failed to participate in a
January 21, 2019 conference call with the arbitrator, but again
Moore does not cite any, and there is no, evidence in the record of
that either.
Once the arbitrator had been selected, Bamboo started to
play games. Bamboo advised the arbitrator that its attorneys
4
would not be representing Bamboo in the arbitration. Instead,
Bamboo said, a non-attorney named Mark Berkowitz, whose
written submissions to the arbitrator included the appellation
“not a lawyer,” would be representing the company in the
arbitration. Berkowitz’s first actions were to ask for a series of
extensions and to advise the arbitrator that, at least as of
February 13, 2019, Bamboo had not yet decided whether to
participate in the arbitration.
C. The Parties File Motions in the Arbitration
On April 3, 2019 the parties had a telephone conference
with the arbitrator. The arbitrator ruled the parties could have
until April 12, 2019 to file and serve “any and all Motions which
they may now wish to make.” The arbitrator stated: “After duly
considering whatever filings are made as set forth above, I will in
due course issue such Decisions/Orders as I determine are
appropriate for the then-existing circumstances.”
Moore did not file his motions by the arbitrator’s April 12,
2019 deadline. Instead, on April 12, 2019 Moore asked the
arbitrator for a one-week extension (to which Berkowitz, on
behalf of Bamboo, stipulated) to allow his attorneys to appear in
court on April 15, 2019 “to advise the Court on [Bamboo’s] refusal
to arbitrate the matter as ordered by the Court and request that
[the] stay be lifted [or] in the alternative request to shorten time
for the motion to be heard.” The arbitrator granted the request
in part, extending the deadline for filing motions to April 16,
2019. On April 15, 2019 the trial court denied Moore’s request to
lift the stay or shorten time.
On April 16, 2019 Bamboo, through Berkowitz, filed a
motion for an arbitration award by summary disposition that, in
5
its confusing and often inconsistent argument, reflected it had
been written by a non-lawyer. In essence, Bamboo argued it was
entitled to an award on all claims because Moore was not a party
to the contract and could not file a demand for arbitration,
Moore’s claims were barred by a two-year statute of limitations,
and Moore had waived his right to arbitrate.
At some point Moore filed with the arbitrator a motion to
remand the arbitration to the trial court, although the parties do
not say when Moore filed this motion; it is not in the record, and
there is no evidence of the grounds for that motion. Moore also
filed an opposition to Bamboo’s motion for an award by summary
disposition, and Bamboo filed a reply.
D. The Arbitrator Makes a Ruling of Sorts
On July 22, 2019 the arbitrator issued an order, more or
less. In a section titled “Some Background,” the arbitrator
shared some musings about the arbitration, which the arbitrator
said was “unique in a number of respects.” The arbitrator
observed that the lease was not signed by Bamboo and that it
was signed by Chase Fontaine and King Tut, but not Moore. The
arbitrator stated that the claims in the arbitration were “not only
for personal injury but for other matters as well,” that “it would
seem” the personal injury causes of action were not barred by the
statute of limitations, and that the court action and the
arbitration “have suspended/tolled any further ‘running’ of the
relevant Statutes of Limitations.” The arbitrator also stated that
Moore was asserting causes of action that were not for personal
injury, such as breach of the warranty of habitability, breach of
contract, intentional infliction of emotional distress, and
nuisance.
6
Turning, at least tangentially, to the motions filed by the
parties, the arbitrator stated that, “[a]lthough [Moore’s] counsel
and [Bamboo’s] representative have both made extensive written
‘arguments’ in supports of their respective positions, neither ‘side’
has submitted any formal evidence—e.g., in the form of either
‘Affidavits’, ‘Declarations Under Penalty of Perjury,’ etc.—in
support of their respective ‘arguments.’” In a section titled
“Decision,” the arbitrator stated: “At this point in time, it is clear
that [Bamboo’s] representative’s primary focus is on preventing
this dispute from proceeding to a resolution pursuant to the
AAA’s Commercial Arbitration Rules. Those Rules provide, inter
alia in Rule R-33, that Dispositive Motions may be allowed and
ruled upon only if the Arbitrator determines that the moving
party has shown that the motion is likely to succeed and dispose
of or narrow the issues in the case. However, thus far [Bamboo’s]
representative, although he has made extensive written
arguments (including citations to ‘legal authority’) in support of
his Dispositive Motion, has not submitted any evidence to
buttress his Dispositive Motion—e.g., no Affidavits, no
Declarations Under Penalty of Perjury, no meaningful 3rd party
letters or emails, etc.”
Rather than ruling on the motions on this basis, however,
the arbitrator proceeded to express some concerns about his
assignment. The arbitrator stated: “So too it is still not clear
who are the actual/correct parties—both as to Claimant(s)
and Respondent(s) in both the Court action and the
Arbitration proceeding.” “Further,” the arbitrator said, if the
July 2015 lease “is valid and enforceable, and it relates only [to]
the arbitrability of claims for personal injury,” some of
7
Moore’s other claims “should not be heard in an arbitration
proceeding but rather in a Court action.”
The arbitrator then revisited the trial court’s ruling on
Bamboo’s motion to compel arbitration and questioned whether
the court’s ruling was correct. “Although the Court correctly
cited the Federal Arbitration Act as applicable to this dispute, it
is also now become apparent in this arbitration proceeding that
further consideration needs to be given both to (a) what claims
(presumably only those for ‘personal injury’) are subject to
arbitration and (b) what persons and/or entities are the proper
parties to either or both the court action and the arbitration
proceeding? i.e. Any/all of the signatories to the July [2015] rental
agreement? The ‘landlord’, the ‘owner’, the Manager and/or the
member(s) of the LLC (and, if so, as of what date or dates).
California law does allow for one-member LLC’s (this named
Respondent may or may not be). And so too the members of
California LLC’s are normally not liable for acts or omissions of
the LLC except in very limited circumstances.”
The arbitrator continued: “Customarily these kind of
questions and concerns would be heard and resolved by the
Arbitrator—especially when all parties were represented by
experienced counsel. . . . However, I conclude that in the instant
case [Moore’s] counsel has made a compelling case for this
dispute to be ‘remanded’ to the Court (even though the Court,
once it has dealt with the above threshold questions (i.e., who are
the parties and what if any claims for other than personal injury
are subject to arbitration), may well—if it does not agree with
ALL the contentions set forth in [Moore’s] Motion to Remand—
once again order at least some part, if not all, of this dispute back
into arbitration).”
8
Finally, bringing its order to a close, the arbitrator granted
Moore’s motion to remand “in its entirety,” except for Moore’s
pending request for attorneys’ fees and costs (i.e., not in its
entirety), and denied Bamboo’s dispositive motion, also “in its
entirety.” The arbitrator also ruled: “This Order and Decision,
and the resultant Administrative Stay of this arbitration
proceeding, will remain in effect pending a further clarifying
order from the Court.” The arbitrator did not make any finding
or ruling on waiver.
E. The Trial Court Changes Course
On August 7, 2019, on the heels of the arbitrator’s order,
Moore filed in the trial court what is commonly called an ex parte
application (i.e., an application on shortened notice to the other
side) to “advise” the court of the arbitrator’s July 22, 2019 order.
Moore asked the court to lift the (litigation) stay and schedule a
trial setting conference. Bamboo filed an opposition the next day,
arguing that, under the AAA rules and the court’s prior order
compelling arbitration, the arbitrator was supposed to and should
decide arbitrability issues and that the court did not have
jurisdiction to rule on Moore’s application.
On August 9, 2019 the trial court granted the application.
The court lifted the stay, “remanded” the matter “back to the
Civil Active List,” and scheduled a trial setting conference for
September 5, 2019.
On August 21, 2019 Bamboo filed the motion that is the
subject of this appeal, titled a “Motion To Return Claims to
Arbitration and Stay Action Pursuant to Code of Civil Procedure
9
Section 1281.4,”3 asking the court to return the matter to
arbitration and to direct the arbitrator to rule on any
arbitrability issues. Bamboo argued that the court had already
granted its motion to compel arbitration and directed the
arbitrator to decide issues of arbitrability and that the
arbitrator’s July 22, 2019 remand order (if that’s what it was)
was improper. Bamboo also asked the court to reinstate the stay
pending completion of the arbitration.
Moore opposed the motion, arguing that Bamboo’s
representative “did everything in his power to delay and prevent
the arbitration from moving forward”; that Bamboo waived its
right to arbitrate by failing to initiate, pay for, and participate in
the arbitration; and that the arbitrator did not remand the
matter for the court to determine arbitrability issues but
essentially to get some advice on Moore’s motion to remand.
Moore argued Bamboo, its attorneys, and Berkowitz were trying
“to financially bleed [Moore] by filing motions in bad faith,
attaching declarations under oath when they have no intention of
arbitrating, having [Moore] initiate arbitration, then ask to be
refiled, then refuse to participate, claim there is no valid rental
agreement, trying to dismiss the arbitration after they ask for it,
and now once again lying to this Court in an attempt to get the
case back into arbitration so they can refuse to participate and
bleed [Moore] financially.” Moore asserted that Bamboo and its
representatives “blatantly perpetrated a fraud on the Court and
Plaintiffs,” that “[n]ow they are trying to do it again,” and that
the “take away from the Arbitrator[’]s ruling is that [Bamboo] did
not participate in the arbitration as ordered by the arbitrator on
3 Statutory references are to the Code of Civil Procedure.
10
numerous occasions.” Moore complained it was “unfathomable
that after all of its obstructive conduct [Bamboo] would file this
motion” and that Bamboo’s conduct was “egregious,” “in bad
faith,” and “the epitome of bad faith.”
On September 30, 2019 the trial court denied Bamboo’s
motion and set the case for trial. At the hearing, the trial court
stated that Bamboo “never answered the complaint or even the
petition for arbitration. They filed a dispositive motion, I don’t
have the motion itself, but it appears [Bamboo is] taking the
position that [it was not] a party to this contract . . . . Well, that
seems to be a pretty, pretty clear position that they’re taking, a
position inconsistent with pursuing the matter in arbitration. . . .
All this is pretty weird stuff, but for an arbitrator to send it
back—it says, ‘Plaintiff’s motion was granted in its entirety.’ So
that’s why . . . I am inclined to deny the motion to return it back
to arbitration. I think [Bamboo’s] acts have . . . waived [its] right
to pursue this matter in arbitration, given the history of the
case.” Suggesting Bamboo had the obligation to move the
arbitration along because, although Moore was the claimant,
Bamboo filed the motion to compel arbitration, and citing the
arbitrator’s statement that Berkowitz’s “primary focus” was on
preventing the arbitration from proceeding, the court found
Bamboo had “waived [the] right to pursue this matter in
arbitration based upon their refusal to get this matter arbitrated
expeditiously as they should have.” The court also stated that
the argument in Bamboo’s dispositive motion in the arbitration,
that there was no enforceable lease or arbitration provision, was
“inconsistent with trying to pursue this matter in arbitration.”
Bamboo timely appealed from the court’s September 30, 2019
order.
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DISCUSSION
A. We Have Jurisdiction
Moore argues that the trial court’s September 30, 2019
order denying Bamboo’s motion to return the matter to
arbitration is not appealable and that we should dismiss
Bamboo’s appeal. Moore argues the trial court’s September 30,
2019 order was “not the type of order that falls within” section
1294, subdivision (a).
“[S]ection 1294 governs appealability of orders in
arbitration matters in California.” (Judge v. Nijjar Realty, Inc.
(2014) 232 Cal.App.4th 619, 632.) Section 1294 lists the orders
concerning arbitration that are appealable: an order dismissing
or denying a petition to compel arbitration; an order dismissing a
petition to confirm, correct or vacate an award; and an order
vacating an award, unless the court orders a rehearing in
arbitration; and several others. (See Swain v. LaserAway
Medical Group, Inc. (2020) 57 Cal.App.5th 59, 66; Hong v. CJ
CGV America Holdings, Inc. (2013) 222 Cal.App.4th 240, 248.)
An order denying a motion to return a matter to arbitration after
it has already been in arbitration is not on the list.
As Bamboo correctly points out, however, its motion to
return the matter to arbitration was the “functional equivalent of
a motion to compel arbitration,” the denial of which is appealable.
(See Lawson v. ZB, N.A. (2017) 18 Cal.App.5th 705, 714 [“the
functional equivalent of an order denying arbitration [is]
appealable under section 1294, subdivision (a)”]; see also MKJA,
Inc. v. 123 Fit Franchising, LLC (2011) 191 Cal.App.4th 643, 655
[because an order denying a stay of litigation pending arbitration
is the “functional equivalent of an order denying a petition to
12
compel arbitration,” the order is appealable under section 1294,
subdivision (a)]; Henry v. Alcove Investment, Inc. (1991)
233 Cal.App.3d 94, 99 [“an order staying arbitration is the
functional equivalent of an order refusing to compel arbitration”
and therefore is appealable].) Bamboo wanted to be in
arbitration, and the trial court denied its motion to get there.
That order is appealable under section 1294, subdivision (a), as
an order denying a motion to compel arbitration.
B. But the Trial Court Did Not
Bamboo argues that the trial court, once it granted
Bamboo’s motion to compel arbitration, did not have jurisdiction
to rule on Moore’s request to lift the stay pending arbitration and
set the case for trial and that the August 9, 2019 order was the
“necessary precursor” to Bamboo’s motion to return the case to
arbitration and to the court’s September 30, 2019 order denying
that motion. Bamboo asserts that, “because the arbitration was
still ongoing, i.e., on an administrative hold, the trial court lacked
jurisdiction to lift the stay, such that it should not have had the
subsequent opportunity to rule on—and deny—the Motion to
Return.” Where, as here, the procedural facts are not disputed,4
whether the trial court had “subject matter jurisdiction is a legal
question subject to de novo review.” (Guardianship of Ariana K.
(2004) 120 Cal.App.4th 690, 701; see People v. Bilbrey (2018)
25 Cal.App.5th 764, 770 [appellate court reviews de novo an
argument the trial court lacked jurisdiction to rule on a motion];
Day v. Collingwood (2006) 144 Cal.App.4th 1116, 1123 [same].)
4 Some of the facts regarding waiver are disputed.
13
The trial court did not have jurisdiction to rule on either
Moore’s ex parte application or Bamboo’s motion. Once a court
has granted a motion to compel arbitration, section 1281.4
“requires a court to stay an action submitted to arbitration
pursuant to an agreement of the parties. Beyond that, the court’s
role is fairly limited. Once a petition is granted and the lawsuit
is stayed, ‘the action at law sits in the twilight zone of abatement
with the trial court retaining merely vestigial jurisdiction over
matters submitted to arbitration.’ [Citation.] During that time,
under its ‘vestigial’ jurisdiction, a court may: appoint arbitrators
if the method selected by the parties fails (§ 1281.6); grant a
provisional remedy ‘but only upon the ground that the award to
which an applicant may be entitled may be rendered ineffectual
without provisional relief’ (§ 1281.8, subd. (b)); and confirm,
correct or vacate the arbitration award (§ 1285). Absent an
agreement to withdraw the controversy from arbitration,
however, no other judicial act is authorized. [Citation.] [¶] In the
interim, the arbitrator takes over. It is the job of the arbitrator,
not the court, to resolve all questions needed to determine the
controversy. [Citations.] The arbitrator, and not the court,
decides questions of procedure and discovery.” (Titan/Value
Equities Group, Inc. v. Superior Court (1994) 29 Cal.App.4th 482,
487-488, fn. omitted; accord, Optimal Markets, Inc. v. Salant
(2013) 221 Cal.App.4th 912, 923-924; Cinel v. Christopher (2012)
203 Cal.App.4th 759, 769.) “Appellate courts have . . . routinely
rejected parties’ efforts to have courts overstep their limited
jurisdiction in cases that are stayed pending binding contractual
arbitration.” (Optimal Markets, Inc., at p. 924.)
Where a party fails to participate in an arbitration after the
trial court has granted a motion to compel arbitration, the other
14
party’s “only avenue for redress” is in the arbitration proceeding.
(Blake v. Ecker (2001) 93 Cal.App.4th 728, 737, disapproved on
another ground in Le Francois v. Goel (2005) 35 Cal.4th 1094,
1107, fn. 5; accord, SWAB Financial, LLC v. E*Trade Securities,
LLC (2007) 150 Cal.App.4th 1181, 1200-1201; see Titan/Value
Equities Group, Inc. v. Superior Court, supra, 29 Cal.App.4th at
p. 488 [“It is . . . up to the arbitrator, and not the court, to grant
relief for delay in bringing an arbitration to a resolution.”].) “The
trial court may not step into a case submitted to arbitration and
tell the arbitrator what to do and when to do it: it may not resolve
procedural questions, order discovery, determine the status of
claims before the arbitrator or set the case for trial because of a
party’s alleged dilatory conduct. It is for the arbitrator, and not
the court, to resolve such questions.” (Titan/Value, at p. 489; see
Byerly v. Sale (1988) 204 Cal.App.3d 1312, 1316 [“only the
arbitrator should determine whether there has been an
unreasonable delay in prosecution which would justify
dismissal”].) Moore explicitly, although perhaps unwittingly,
concedes this point.
Thus, if Moore believed Bamboo was unreasonably delaying
the arbitration or engaging in other dilatory conduct after the
trial court granted Bamboo’s motion to compel arbitration, Moore
had the obligation to raise, and the arbitrator had the obligation
to decide, that issue in the arbitration. (Cf. Brock v. Kaiser
Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1808 [remedy
for “dilatory tactics” in an arbitration is to “move in the
arbitration proceedings to terminate them for failure to pursue
the arbitration claim with reasonable diligence”].) Moore may
have raised the issue in his motion (in the arbitration) to remand;
that motion is not in the record on appeal, so we do not know.
15
But we do know the arbitrator did not find Bamboo unreasonably
delayed the arbitration proceedings or waived its right to
arbitrate; the arbitrator’s comment that Berkowitz’s motivation
appeared to be “preventing” the arbitration from proceeding did
not amount to such a finding. More important, the arbitrator did
not make any rulings or enter an award based on such a finding.
The arbitrator did not strike any of Bamboo’s papers, impose
evidentiary or issue sanctions, enter Bamboo’s default, proceed to
conduct the arbitration without Bamboo, or, most significantly,
enter an award.5
The trial court also lacked jurisdiction under sections
1283.4 and 1285 to rule on the arbitrator’s order because the
5 Although the issue is for the arbitrator, one circumstance
that generally would not support a finding of waiver is Bamboo’s
reluctance or failure to participate in the arbitration. Moore, as
the claimant, has the obligation to pursue his claims in the
arbitration. “It is, after all, the . . . claimant in arbitration, like
the plaintiff in litigation, who bears the primary responsibility of
exercising diligence in order to advance progress towards the
resolution of its claim [citation], and [the defendant] is under no
obligation to press for appointment of arbitrators when a
claimant is himself dilatory.” (Engalla v. Permanente Medical
Group, Inc. (1997) 15 Cal.4th 951, 980.) Thus, Moore’s argument
that “Bamboo failed to initiate the Arbitration it compelled” has
it backward. But the arbitrator can consider that, even under
Moore’s chronology, six to nine months of the delay was
attributable to Moore (January 2018, when the trial court
granted Bamboo’s motion to compel arbitration, to July or
October 2018, when Moore filed his original and subsequent
demands for arbitration), and only four months of the delay was
attributable to Bamboo (December 2018, when the arbitrator
apparently was appointed, to April 2019, when Bamboo filed its
motion in the arbitration).
16
order was not, and did not purport to be, an award. (See Kaiser
Foundation Health Plan, Inc. v. Superior Court (2017)
13 Cal.App.5th 1125, 1131 [an arbitration “award must ‘include a
determination of all the questions submitted to the arbitrators
the decision of which is necessary in order to determine the
controversy’”]; Judge v. Nijjar Realty, Inc., supra,232 Cal.App.4th at p. 634, fn. 12 [trial court did not have
jurisdiction “to vacate a less than final ruling made by the
arbitrator”]; Knight et al., Cal. Practice Guide: Alternative
Dispute Resolution (The Rutter Group 2020) ¶ 5:422.5 [an
“interim order cannot be confirmed, corrected or vacated by a
court”].) The arbitration is not over; it is, according to the
arbitrator, only “administratively stayed” until the trial court
issues a “further clarifying order” the arbitrator hoped would
address “threshold questions” of arbitrability. The arbitrator’s
order was essentially an invitation for the court to provide an
advisory opinion or give further input on an issue that was
exclusively for the arbitrator. Whatever the arbitrator’s order
was, it was not an award the trial court could “confirm, correct or
vacate.” (§ 1285.)
Because the trial court did not have jurisdiction on
September 30, 2019 to rule on Bamboo’s motion to return the
matter to arbitration and to stay the action, the trial court
properly denied the motion, although for the wrong reason. The
trial court erred, however, in setting the case for trial.6 Of
course, the trial court did not have jurisdiction on August 9, 2019
to rule on Moore’s ex parte application either; the court erred at
6 Bamboo’s motion to stay the action was technically moot
because the prior stay under section 1281.4 was still in effect.
17
that time in granting Moore’s application, lifting the stay,
remanding the case to the civil active list,7 and setting the case
for trial. Therefore, that order was not valid. But because
Bamboo did not appeal from that order, its correction will have to
occur another day. (See K.J. v. Los Angeles Unified School Dist.
(2020) 8 Cal.5th 875, 881 [“‘[T]he timely filing of an appropriate
notice of appeal or its legal equivalent is an absolute prerequisite
to the exercise of appellate jurisdiction.’”]; In re G.C. (2018)
27 Cal.App.5th 110, 117 [an appellate court lacks jurisdiction to
review an order from which the appellant did not timely appeal].)
Nothing in this opinion should be construed as precluding
Bamboo from filing in the trial court a motion for reconsideration
of the court’s August 9, 2019 order granting Moore’s ex parte
application to advise the court of the arbitrator’s order
remanding the matter back to the trial court and to lift the stay,
so that the trial court can vacate that order as well.
7 There is, in fact, no longer such thing as a “civil active list.”
There are only cases assigned to civil departments. Some cases
are more active than others, and some cases are waiting for an
arbitration to conclude.
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DISPOSITION
The order is affirmed. The trial court is directed to deny for
lack of jurisdiction Bamboo’s motion to return the matter to
arbitration and to deny the motion to stay the action as moot.
The parties are to bear their costs on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
McCORMICK, J.*
* Judge of the Orange County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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