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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,

Plaintiff and Respondent,

v.

BAMBOO RETREATS, LLC,

Defendant and Appellant.

 B301641

 (Los Angeles County

 Super. Ct. No. BC671043)

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. 

___________________________
2

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 
3

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.” 
4

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
5

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 
6

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. 
7

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 
8

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).” 
9

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 
10

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.
11

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. 
12

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 
13

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.
14

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 
15

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. 
16

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).
17

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.
18

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. 
19

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.