Mid-Wilshire Associates v. O'Leary

• Decision Date: 09 July 1992
• Docket Number: MID-WILSHIRE,No. B058970,B058970
• Citation: 9 Cal.Rptr.2d 862,7 Cal.App.4th 1450
• Court: California Court of Appeals Court of Appeals
• Parties: ASSOCIATES, Plaintiff and Appellant, v. Winifred K. O'LEARY et al., Defendants and Respondents.

Page 862

9 Cal.Rptr.2d 862

7 Cal.App.4th 1450

MID-WILSHIRE ASSOCIATES, Plaintiff and Appellant, v. Winifred K. O'LEARY et al., Defendants and Respondents.

No. B058970.

Court of Appeal, Second District, Division 5, California.

July 9, 1992.

Nossaman, Guthner, Knox & Elliott, Karen McLaurin Chang and James C. Powers, Los Angeles, for plaintiff and appellant.

Solish, Jordan & Wiener, Lyn Skinner Foster and Jonathan Solish, Los Angeles, for defendants and respondents.

GRIGNON, Associate Justice.

Plaintiff and appellant Mid-Wilshire Associates purports to appeal from an order denying its petition to vacate or correct an arbitration award, as well as an earlier order compelling arbitration of its claims. Appellant is the lessee under a 99-year land lease between respondents Winifred K. and Charles O'Leary, and appellant's predecessor in interest. Respondent Wells Fargo Bank, N.A., succeeded to the interest of Charles O'Leary. We conclude that the orders appealed from are not appealable and dismiss the appeal.

FACTS AND PROCEDURAL BACKGROUND

The instant litigation concerns a 99-year land lease executed in 1967. The subject real property, which was vacant land at the time of the execution of the lease, is located on Wilshire Boulevard in Los Angeles. After entering into the lease, appellant's predecessor constructed a 20-story office building on the property. The lease provides that this improvement is the property of the lessee, not the lessor.

The lease includes a rent escalation clause. That clause provides that the rent shall be recomputed every 15 years, or sooner if the Consumer Price Index increases by more than 20 percent during a 15-year period, based on reappraisal of the "value of the demised premises, appraised as vacant land." The first reappraisal was to be made as of January 1, 1990. When the parties could not agree as to the value of the demised premises, respondents made a demand for arbitration under the terms of the lease.

On June 8, 1990, appellant filed a complaint for declaratory relief seeking a judicial declaration construing the reappraisal provision of the lease as providing for valuation of the demised premises as vacant land subject to the laws, zoning, and building requirements in force as of the date of appraisal. Respondents filed a petition to compel arbitration. The petition was granted and the matter arbitrated. According to appellant, the arbitrator improperly considered the size and nature of the improvements constructed on the demised premises in valuing the land.

Appellant moved to vacate or correct the arbitration award. That motion was denied on May 8, 1991, and appellant filed its notice of appeal on June 3, 1991. Respondents apparently filed a proposed judgment, which is not part of the record on appeal. On June 6, 1991, appellant filed objections to the form of the proposed judgment submitted by respondents. Appellants argued that no order confirming the arbitration award had been made, and no judgment could be entered without such an order. In addition, appellant maintained

that the court lacked jurisdiction to confirm the arbitration award or enter judgment because of appellant's pending appeal.

DISCUSSION

As a threshold issue, we address whether this court has jurisdiction to consider an appeal from the denial of appellant's motion to vacate or correct the arbitration award. An aggrieved party may appeal from an order dismissing a petition to confirm, correct or vacate an award. (Code Civ.Proc., § 1294, subd. (b).) No appeal, however, will lie from an order denying vacation or correction of an arbitration award. (Hyatt v. Eckel Valve Co. (1959) 169 Cal.App.2d 35, 39, 336 P.2d 551; National Marble Co. v. Bricklayers & Allied Craftsmen (1986) 184 Cal.App.3d 1057, 1060-1061, fn. 1, 229 Cal.Rptr. 653.) Such an order may be reviewed upon an appeal from the judgment of confirmation. (Ibid.; cf. Jordan v. Pacific Automobile Ins. Co. (1965) 232 Cal.App.2d 127, 129, 42 Cal.Rptr. 556.) Similarly, an order to compel arbitration is an interlocutory order which is appealable only from the judgment confirming the arbitration award and, in certain exceptional circumstances, by writ of mandate. (United Firefighters v. Los Angeles (1991) 231 Cal.App.3d 1576, 1581-1582, 283 Cal.Rptr. 8.) In this case, there is neither an order confirming the award nor a judgment. Accordingly, the appeal from the order compelling arbitration and the order denying the motion to vacate or correct the award must be dismissed.

Appellant requests that this court construe the order denying the petition to vacate or correct the arbitration award as an order dismissing a petition to vacate or correct an arbitration award, which construction would make the order appealable. (Code Civ.Proc., § 1294, subd. (b).) We decline to so construe the order.

The statute plainly provides for an appeal from an order "dismissing" a petition to vacate or correct an arbitration award. It makes no such provision for the denial of such a petition. Moreover, the Legislature was aware of the difference between "dismissing" and "denying" a petition, since it used both terms in a prior subdivision of the same statute. (Id. at subd. (a), "dismissing or denying a petition to compel arbitration.") Further, dismissal of a petition to confirm, correct, or vacate may be brought solely on the ground that the respondent is not bound by the arbitration award and was not a party to the arbitration. (Code Civ.Proc., § 1287.2.) Thus, an 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 (Code Civ.Proc., § 1286.2), is not a final disposition and, therefore, is not directly appealable. (Olivera v. Modiano-Schneider, Inc. (1962) 205 Cal.App.2d 9, 10-11, 23 Cal.Rptr. 30; Hyatt v. Eckel Valve Co., supra, 169 Cal.App.2d at p. 39, 336 P.2d 551; cf. Arrieta v. Paine, Webber, Jackson & Curtis, Inc. (1976) 59 Cal.App.3d 322, 326, fn. 1, 130 Cal.Rptr. 534; Glesby v. Balfour, Guthrie & Co., Ltd. (1944) 63 Cal.App.2d 414, 417, 147 P.2d 60; Jordan v. Pacific Auto Ins. Co., supra, 232 Cal.App.2d at p. 129, 42 Cal.Rptr. 556.) Review of an order denying such a petition may be had upon appeal from the judgment of confirmation or by writ of mandate. ¹

Appellate jurisdiction is solely within the province of our Legislature, since the right to appeal is not conferred by our Constitution but by statute. (Kinoshita v. Horio (1986) 186 Cal.App.3d 959, 962, 231 Cal.Rptr. 241.) This court is without power to bestow jurisdiction on itself, nor may the parties create jurisdiction by consent, waiver, or estoppel. ²

We also decline to assume jurisdiction by treating this appeal as a petition for writ of mandate. (Olson v. Cory, (1983) 35 Cal.3d 390, 398-401, 197 Cal.Rptr. 843, 673 P.2d 720.) First, appellant has not expressly requested that we do so. Secondly, an adequate remedy lies in the...