Judge: Mark H. Epstein, Case: 19SMCV02112, Date: 2023-10-13 Tentative Ruling

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Case Number: 19SMCV02112    Hearing Date: October 13, 2023    Dept: I

Pan seeks to confirm the arbitration award.  Such an order flows as a matter of course from the court’s denial of the petition to vacate, an order now on appeal.  Kapur claims that this court is without jurisdiction to enter an order confirming the award because Kapur has appealed the court’s prior order.  That, according to Kapur, means that this court cannot now confirm the award, as doing so would affect the merits of the appeal.  Pan argues that Kapur’s appeal is faulty.  According to Pan, Kapur appealed from an order denying its motion to vacate the arbitration award rather than an actual dismissal of its petition to vacate.  The court of Appeal in Mid-Wilshire Associates v. O’Leary (1992) 7 Cal.App.4th 1450 held that this is a distinction with a difference.  The former is not appealable; the latter is.  (An order denying a motion to vacate will be reviewable, however, following an order confirming the arbitration award.)  Pan contends that what is really happening is that Kapur is trying to take an appeal from what ought to be a judgment requiring Kapur to pay Pan money (because the arbitrator so ordered) and obtain a stay without posting a bond.

The court will inquire about this a bit further.  It does appear that Pan is right about the appealability of the court’s order.  And further, an order confirming the arbitration award follows as a matter of course from the denial of a petition to vacate or correct an award.  So as a practical matter, Pan has the better of it.  And it might be that Pan has the better of it as a technical matter as well because of Mid-Wilshire. 

That said, though, at the status conference on October 11, 2023, Kapur’s counsel informed the court that Kapur had filed the opening brief and that Pan’s brief was due that day (and the appellate court had ordered that no further extensions would be granted).  Pan was not at the hearing, so the court did not want to inquire further.  But the court is curious as to whether Pan has moved to dismiss the appeal for want of jurisdiction.  If not, the court is curious as to why not.  If so, then the court would like to know how the appellate court ruled.  If no motion was filed, the court would like to know if the jurisdictional issue was highlighted in the brief.  Again, if not, why not?  If so, the court would wonder why it was raised in that fashion rather than on motion.  The point is that Pan’s problem is, to some degree, one of its own making.  Pan could have brought a cross-motion to confirm the award.  Pan could have included such an order in its proposed order language (because the confirmation follows as a matter of law).  But it did not. 

If this court has jurisdiction, it is inclined to GRANT Pan’s motion inasmuch as the court’s denial of the petition to vacate means that the award should be confirmed as a matter of law.  But if the court lacks jurisdiction, then Pan must await the appellate court’s ruling.