New World Entertainment, Ltd. They follow different rules and serve different ends. They are as distinct in their elementary structure as dirt is to water. Mixing the two only produces mud-not the sort of stuff we willingly tread in. Nationwide Ins. In their supplemental briefing, the parties assert the document filed over the signature of Judge Kleaver is an appealable judgment. They do this, however, only by characterizing the stipulation to arbitrate as something it is not. A similar situation arose recently in the Fourth District.
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Old Republic Ins. The Old Republic court introduced the appellate jurisdiction issue as follows:. Depending upon the nature of the procedure adopted, these range from no judicial review to plenary review. Judicial arbitrations are governed by Code of Civil Procedure section Such a temporary judge has the power to render a judgment which is appealable in the same manner as one rendered by a constitutional judge.
Following such a trial on the merits, parties have the same rights of appeal as in all other cases tried in the superior court. However, absent a timely request for a trial de novo, the arbitration award constitutes a final, nonappealable judgment. Petroleum Maintenance Co. We consider this issue below. Such a judgment is subject to appeal in the same manner as any other judgment.
Accordingly, the trial court inspected the remainder of the document to determine what type of dispute resolution resulted from the stipulation. Viewing the stipulation as a whole, the Old Republic court determined that the parties intended that the dispute be resolved by arbitration. The stipulation presented in this proceeding is different from the stipulation in Old Republic in several ways.
If it was contractual arbitration, we cannot review directly the arbitrator's decision. We would review only the trial court's decision concerning the award for example, confirming, modifying, or vacating the award. Code Civ. If it was judicial arbitration, no review is available.
The defendants had to request a trial de novo to preserve review rights. I agree. Such an award is never a judgment until it is reduced to a judgment following the statutory procedure summarized above. See Rubin v.
Metzger v. Bose
Western Mutual Ins. The statutory procedure was not utilized here. Thus, there is no judgment.
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Faced with a similar situation, the parties in another case recognized the ineffectiveness of their agreement that an arbitration award would be appealable. National Union, supra, 69 Cal. Instead of urging the appellate court to rescue the appeal, the parties acted in the trial court to modify the agreement nunc pro tunc to be a reference agreement. The trial court entered the agreement as an order, treated the arbitration as a reference proceeding, and entered judgment on the arbitration order as if it had been a statement of decision from a referee.
Even though the parties and trial court went to such effort, the Court of Appeal was still hesitant to acknowledge appellate jurisdiction. However, since the arbitration had effectively become a reference proceeding, the court decided the appeal on the merits.
Blatantly missing in the proceeding at bar is any effort to transform the arbitration into anything other than an arbitration. Instead, the parties ask us to extend our jurisdiction to hear the matter.
The parties make three arguments in favor of appealability. None of these arguments is supported by the facts of this case. Instead, it is clear the parties entered into an agreement for binding arbitration, as the agreement states. First, the parties claim that, since the arbitration agreement provides for a final judgment and appeal from the final judgment, this court has appellate jurisdiction.
As stated above, however, the parties cannot create appellate jurisdiction by stipulation where none exists statutorily. The only ways to obtain review of an arbitrator's decision are after vacation, modification, or confirmation by the trial court in the case of contractual arbitration or after a trial de novo in the case of judicial arbitration. The parties argue that the arbitration agreement resulted in a reference proceeding under section At oral argument, the appellants indicated this was their preferred method for rescuing the appeal.
There is no mention of a reference proceeding anywhere in the parties' stipulation, in the other filings, or in the interactions between the court and the parties. As noted, it was agreed that the dispute was to be resolved through arbitration. The parties argue that finding this was an arbitration agreement exalts form over substance.
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The remainder of the record, however, belies this argument. The trial court did not appoint Judge Kleaver as a referee.
This is consistent with an arbitration agreement because in arbitration it is unnecessary for the court to appoint an arbitrator when one is chosen by the parties. Furthermore, the trial court did not enter judgment on the arbitrator's decision. Even if this was a reference proceeding, however, Judge Kleaver did not have authority to enter a judgment.
If this had been a reference proceeding, his filing would have been, at most, a statement of decision, upon which the trial court could have entered judgment. Merin Cal. No such judgment was entered. This was not a reference and no attempt was made to follow statutory reference procedure. The parties assert we must look to the intent of the parties. Board of Dental Examiners 46 Cal. Here, the agreement exudes an intent to enter into an arbitration agreement, not a reference agreement.
There were and continue to be on both sides experienced lawyers. I necessarily assume they knew the law and pertinent terms of art. I also assume they meant what they said. If they had intended this document to be a reference or, as discussed below, an appointment of a temporary judge, they would have said so. Now that they know their expression of their desires has missed the legal mark, they assert this court should stretch the law to suit their interests. This we may not do. Despite the well-known differences between arbitration, reference, and other types of proceedings, they make no attempt to identify this proceeding as anything other than an arbitration proceeding.
It is apparent that the parties would not have us consider their intent as of the time they entered into the agreement. Instead, they want us to find the intent they wish now they had then. By all indications of the parties' intent at the time they entered into the arbitration agreement, they did not intend a reference proceeding.
The parties urge us to find Judge Kleaver was appointed a temporary judge in this proceeding and therefore to find his decision appealable. Rules of Court, rule This is the fiction the majority adopts to reach the merits. The record, however, does not reflect an intent to agree to a hearing before a temporary judge. Nor does it show intent or action on the part of the trial court to appoint Judge Kleaver as a temporary judge in this action. To appoint a temporary judge the constitution requires the judge to take an oath of office Cal. The majority notes Judge Kleaver had previously taken the oath of office, because he was a judge.
Typed maj. That does little to show the parties and the court intended to appoint a temporary judge. It is nothing more than a coincidence that Judge Kleaver was a judge when the parties agreed to arbitrate their dispute with him acting as arbitrator. The parties, and apparently the majority, assert the failure to conform to all of the technical requirements does not defeat the appointment of a temporary judge.
See In re Richard S. They miss the point. The total lack of intent to appoint a temporary judge in this action defeats their argument, not a technical failure to conform to all of the requirements.
Judge Kleaver was not a temporary judge in this matter. It is nothing but a fiction the parties and the majority seek to impose in retrospect. Instead, it is clear Judge Kleaver knew he was acting as an arbitrator. In effect, the parties argue we should ignore the fact they entered into an arbitration agreement and thereby subvert the statutory procedure for obtaining review of an arbitrator's decision. The majority capitulates.