Filed 2/10/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

CHARLOTTE KIRK et al.,

Plaintiffs and 

Appellants,

v.

BRETT RATNER et al.,

Defendants and 

Respondents.

 B309880

 (Los Angeles County

 Super. Ct. No. 20STCP02842)

APPEAL from an order of the Superior Court of 

Los Angeles County, Christopher K. Lui, Judge. Dismissed.

Fagelbaum & Heller, Jerold Fagelbaum and Philip Heller 

for Plaintiffs and Appellants Charlotte Kirk and Neil Marshall. 

Lavely & Singer, Martin D. Singer, Michael E. Weinsten 

and Allison S. Hart for Defendants and Respondents Brett 

Ratner, Kevin Tsujihara, James Packer and Avi Lerner. 

___________________________
2

Charlotte Kirk, an actress, using the pseudonym Melissa 

Parker, entered into a confidential settlement agreement in 

August 2017 with four entertainment industry executives, Brett 

Ratner, Kevin Tsujihara, James Packer and Avi Lerner, using 

the fictitious names Clark Grandin, Bruce Hamilton, Gregory 

Kemp and Walter Nelson in the agreement and documents filed 

in the superior court. The agreement contained an arbitration 

clause.

The executives filed a demand for arbitration in June 2020, 

naming Kirk (as Parker) and Neil Marshall (actual name), Kirk’s 

fiancé, and two others as respondents, asserting claims for breach 

of contract, interference with contract and civil extortion. The 

executives obtained from an emergency arbitrator a preliminary 

injunction prohibiting Kirk, Marshall and the other respondents 

from disclosing confidential information as that term is defined in 

the settlement agreement, including any disclosures in court 

documents, and from initiating any lawsuit against the 

executives in violation of the arbitration provisions in the 

settlement agreement.

Kirk (as Parker) and Marshall filed a petition in superior 

court to vacate the preliminary injunction. Because the 

emergency arbitrator’s ruling was not an “award” within the 

meaning of Code of Civil Procedure section 1283.4,1 the court 

dismissed the petition for lack of jurisdiction. For the same 

reason, we dismiss Kirk and Marshall’s appeal as taken from a 

nonappealable order.2 

1 Statutory references are to this code. 

2 The settlement agreement obligated any party petitioning 

to vacate the arbitrator’s award to seek an order sealing all 

documents in the court file “to the greatest extent permissible by 
3

law.” The superior court made the required findings under 

California Rules of Court, rule 2.550 and granted motions by both 

sides to seal all documents filed with the court and implicitly 

approved the use of pseudonyms in court documents. While the 

appeal was pending in Division Three of this court, the presiding 

justice permitted appellants to file their appendix conditionally 

under seal, subject to further ruling by the panel hearing the 

case; and the parties used pseudonyms in their briefs

We notified the parties pursuant to California Rules of 

Court, rule 8.46(f)(3) that, absent a showing of good cause, we 

intended to unseal the entire record and use the true names of 

the parties in our opinion. We observed the documents filed 

under seal included newspaper and magazine articles that 

identified the parties (including photographs), discussed the 

underlying facts of the case and the parties’ dispute and 

described the events that prompted the executives to initiate 

arbitration. We suggested that, because the facts of the dispute 

have become public, any justification for using pseudonyms or 

sealing the record that may have existed no longer does. 

(See H.B. Fuller Co. v. Doe (2007) 151 Cal.App.4th 879, 898 

[“there is no justification for sealing records that contain only 

facts already known or available to the public”].) 

Kirk and Marshall, who challenge the validity of the 

confidentiality provisions in the settlement agreement, said they 

only filed the material under seal because they did not want the 

executives to accuse them of violating the settlement agreement 

and the preliminary injunction. 

For their part, the executives first contended, incorrectly, if 

the superior court’s order was not appealable, we would lack 

jurisdiction to decide whether documents in the appellate record 

should remain sealed. (See H.B. Fuller Co. v. Does, supra, 

151 Cal.App.4th at p. 889 [“[t]his court is master of its own 

files”].) The executives next argued the contractual provision to 

keep the names of the parties and the terms of the agreement 

secret overrode the right of public access. (See Cal. Rules of 
4

FACTUAL AND PROCEDURAL BACKGROUND

1. The Confidential Settlement Agreement

Following two days of mediation in August 2017 Kirk,

Joshua Newton (using the pseudonym Matthew Waller) and the 

executives entered into a confidential settlement agreement and 

mutual release that fully resolved (with no admission of 

wrongdoing) Kirk’s claims of sexual harassment, infliction of 

emotional distress and defamation. In addition to payment of 

substantial sums to Kirk, consideration for the settlement and 

promise of confidentiality included the executives’ agreement to 

invest in a film project to be written, directed and produced by 

Newton, starring Kirk as the female lead.

The settlement agreement’s confidentiality provision

prohibited Kirk and Newton from disclosing, directly or 

indirectly, “confidential information,” as defined in the 

agreement, to any person or entity, including media 

organizations or on Internet social media. “Confidential 

information,” as defined, included the facts, circumstances, 

Court, rule 2.550(d)(1).) While that might be true in some 

instances (see Universal City Studios, Inc. v. Superior Court 

(2003) 110 Cal.App.4th 1273, 1283), the widespread public 

disclosure of the information in the news media vitiates any such 

interest here because unsealing the record will no longer 

prejudice the interest in confidentiality. (See Cal. Rules of Court, 

rule 2.550(d)(3).) Acknowledging that fact, the executives also 

argued the media stories had not disclosed all of the confidential 

information and in some instances had described it inaccurately. 

We invited counsel for the executives to propose narrowly tailored 

redactions to protect such information. After reviewing their 

submission, we authorize limited redactions in a separate order 

filed concurrently with this opinion.
5

allegations and contentions giving rise to Kirk’s claims against 

the executives; the facts, circumstances, existence and substance 

of any encounter or communication between Kirk and any of the 

executives; and the settlement agreement, its negotiation and 

terms. The impermissible disclosure of confidential information 

was to be considered a material breach of the agreement. 

The parties agreed to arbitrate “any and all future disputes 

or controversies of any kind or nature between the Parties, 

including without limitation any claim [or] disputes regarding 

validity, interpretation, enforcement or claimed breach of this 

Agreement, however characterized . . . before JAMS under the 

JAMS Comprehensive Arbitration Rules and Procedures . . . or 

ADR pursuant to its rules, and California law, to the greatest 

extent permitted by law.” Kirk and Newton acknowledged an 

unauthorized disclosure of confidential information would cause 

irreparable harm to the executives and agreed that, upon any 

breach or threatened breach of the confidentiality provision, the 

executives would be entitled to immediately obtain injunctive 

relief from the arbitrator (ex parte issuance of a temporary 

restraining order and a preliminary injunction) preventing the 

disclosure (or further disclosure) of confidential information

pending the outcome of arbitration. Notwithstanding the 

arbitration provision, the parties further agreed, without waiving 

their right to arbitration, the executives could seek injunctive 

relief in court to prevent a breach of the settlement agreement. 

Several months after executing the settlement agreement, 

the parties entered into a confidential amendment agreement in 

which the executives promised to invest additional sums in the 

motion picture being developed by Newton and Kirk and Newton
6

reaffirmed the confidentiality and arbitration provisions of the 

settlement agreement. 

2. The Demand for Arbitration and the Preliminary 

Injunction

Because of ongoing disputes among the parties that 

allegedly included threats by Kirk and others to disclose 

confidential information, on June 12, 2020 the executives 

initiated arbitration with JAMS, asserting claims of breach of 

contract as to Kirk, Newton and John Cowan, an attorney 

representing Kirk who had signed a nondisclosure agreement 

accepting the confidentiality terms of the settlement agreement;

intentional interference with contract as to Marshall, who was 

not a party to the settlement agreement; and civil extortion 

against all four of them. Contemporaneously with their demand 

for arbitration the executives filed an ex parte application for a 

temporary restraining order and order to show cause 

re preliminary injunction. 

Following a telephonic hearing, an emergency arbitrator, 

appointed pursuant to the JAMS rules identified in the 

settlement agreement, issued a temporary restraining order

prohibiting Kirk, Newton, Cowan and Marshall from disclosing 

any confidential information as defined in the settlement 

agreement and from filing a lawsuit in any court against the 

executives, and ordered Kirk, Newton, Cowan and Marshall to 

show cause on July 6, 2020 why a preliminary injunction 

containing the same prohibitions should not issue. Kirk and the 

other respondents filed opposition papers. 

The arbitrator issued a preliminary injunction on July 11, 

2020 after a video hearing held several days earlier. The 

arbitrator’s ruling enjoined Kirk, Newton, Cowan and Marshall 
7

and any person acting on their behalf from disclosing confidential 

information, including a disclosure in any document filed in 

court, and from filing a lawsuit in any court in violation of the 

arbitration provisions of the settlement agreement, the 

confidential amendment to the settlement agreement, the 

confidential nondisclosure agreement or a fourth agreement 

referred to as the Duchess Agreement. The emergency arbitrator 

declined to require the executives to post a bond. 

3. The Petition To Vacate the Preliminary Injunction

Kirk and Marshall on September 4, 2020 filed a petition to 

vacate the emergency arbitrator’s preliminary injunction, 

initiating a new action in Los Angeles Superior Court.

3 The 

petition asserted as grounds to vacate the injunction that, prior 

to issuance of the temporary restraining order, the emergency 

arbitrator failed to make the full disclosures required by 

section 1281.9, subdivision (a), and the California Rules of Court, 

Ethics Standards for Neutral Arbitrators in Contractual 

Arbitration, standard 7(d)(15) relating to facts that might cause a 

person to reasonably entertain a doubt that the arbitrator would 

be able to be impartial; the injunction violated section 1002, 

subdivision (d), which prohibits enforcement of settlement 

agreements that prevent disclosure of information regarding 

claims of sexual harassment and, therefore, was contrary to 

public policy and exceeded the emergency arbitrator’s authority; 

and, as to Marshall, the arbitrator exceeded her authority 

because Marshall, although a signatory of the Duchess 

Agreement, was not a party to the settlement agreement and 

3 Kirk and Marshall, using the Judicial Council’s optional 

form ADR-106, indicated all names used for petitioners and 

respondents, other than Marshall’s, were pseudonyms.
8

could not be compelled to arbitrate any disputes with the 

executives.

The executives filed an opposition to the petition, arguing 

the preliminary injunction did not constitute an “award” within 

the meaning of section 1283.4 and the superior court thus lacked 

jurisdiction to consider the petition. They also filed a response to 

the petition, addressing the merits of Kirk and Marshall’s 

arguments in support of vacating the injunction. 

Following receipt of a reply memorandum from Kirk and 

Marshall and a hearing on October 15, 2020, the superior court 

ruled it lacked jurisdiction to consider the petition, relying 

primarily on the decision of our colleagues in Division Two of this 

court in Lonky v. Patel (2020) 51 Cal.App.5th 831 (Lonky). The 

court denied the petition, stating it was “ordered dismissed 

without prejudice to refiling once a final award is issued.” 

Kirk and Marshall filed a timely notice of appeal.

DISCUSSION

1. Governing Law and Standard of Review

The parties’ settlement agreement specified arbitration 

proceedings were to be conducted under California law. Thus, 

the California Arbitration Act (CAA) (§ 1280 et seq.) governs the 

issuance of arbitration awards, superior court review of awards 

and appellate review of superior court orders and judgments 

approving or disapproving awards.

Section 1283.4 defines an arbitrator’s “award” as a written 

ruling that “include[s] a determination of all the questions

submitted to the arbitrators the decision of which is necessary in 

order to determine the controversy.” “The issuance of an ‘award’ 

is what passes the torch of jurisdiction from the arbitrator to the 

trial court.” (Lonky, supra, 51 Cal.App.5th at p. 843.) 
9

Section 1285 authorizes a party to an arbitration “in which an 

award has been made” to petition the superior court “to confirm, 

correct or vacate the award.” Section 1286 provides the superior 

court, if a petition has been properly served and filed, must 

confirm the award as made, confirm it as corrected, vacate the 

award or dismiss the proceeding.

Our jurisdiction to review superior court orders in 

arbitration matters is defined by section 1294. That statute

provides an appeal may be taken from “(a) An order dismissing or 

denying a petition to compel arbitration. [¶] (b) An order 

dismissing a petition to confirm, correct or vacate an award. [¶]

(c) An order vacating an award unless a rehearing in arbitration 

is ordered. [¶] (d) A judgment entered pursuant to this title. [¶]

(e) A special order after judgment.”

We independently review questions regarding our own 

jurisdiction. (California Redevelopment Assn. v. Matosantos

(2011) 53 Cal.4th 231, 252.) In addition, we review questions of 

statutory construction de novo. (California Building Industry

Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 

1041; In re Tobacco II Cases (2009) 46 Cal.4th 298, 311; 

see People v. The North River Ins. Co. (2021) 69 Cal.App.5th 

1079, 1087 [when the pertinent facts are undisputed, we review 

de novo both questions of jurisdiction and issues of statutory 

interpretation].)

2. The Order Dismissing the Petition To Vacate the 

Preliminary Injunction Is Not Appealable

The existence of an appealable order or judgment is a 

jurisdictional prerequisite to an appeal. (Walker v. Los Angeles

County Metropolitan Transportation Authority (2005) 35 Cal.4th 

15, 21; Jennings v. Marralle (1994) 8 Cal.4th 121, 126; Aixtron, 
10

Inc. v. Veeco Instruments Inc. (2020) 52 Cal.App.5th 360, 384.) 

A superior court’s order is generally appealable only when made 

so by statute. (Griset v. Fair Political Practices Com. (2001) 

25 Cal.4th 688, 696 [“[a] reviewing court has jurisdiction over a 

direct appeal only when there is (1) an appealable order or (2) an 

appealable judgment”; “[a] trial court’s order is appealable when

it is made so by statute”].) 

Neither Kirk and Marshall nor the executives question the

appealability of the superior court’s order dismissing the petition

to vacate the preliminary injunction: All parties cite Maplebear,

Inc. v. Busick (2021) 26 Cal.App.5th 394 (Maplebear), which

distinguished this court’s decision in Judge v. Nijjar Realty, Inc.

(2014) 232 Cal.App.4th 619 (Judge) and held a superior court

order dismissing a petition to vacate for lack of jurisdiction was

an appealable order. (Maplebear, at p. 402.) Nonetheless, we

must raise the issue on our own initiative whenever a doubt 

exists as to whether the superior court has entered an appealable 

judgment or order: “[W]e have an independent obligation in this 

as in every matter to confirm whether jurisdiction exists.” 

(California Redevelopment Assn. v. Matosantos, supra, 53 Cal.4th 

at p. 252; accord, Jennings v. Marralle, supra, 8 Cal.4th at p. 126;

see Olson v. Cory (1983) 35 Cal.3d 390, 398 [“since the question of 

appealability goes to our jurisdiction, we are dutybound to 

consider it on our own motion”].)

In Judge, supra, 232 Cal.App.4th 619 this court held the 

superior court’s order vacating an interim arbitration award (a 

“clause construction award” determining as a threshold matter 

that class and representative claims were subject to arbitration) 

was not appealable. (Id. at p. 622.) We explained, “Because the 

clause construction award does not qualify as an ‘award’ under 
11

section 1283.4, the trial court’s order is not an order vacating an 

arbitration award, and it is not appealable.” (Id. at pp. 633-634.) 

In Kaiser Foundation Health Plan, Inc. v. Superior Court (2017) 

13 Cal.App.5th 1125 (Kaiser Foundation) we held a superior 

court judgment confirming a “partial final award” issued by an 

arbitration panel (determining issues of preemption and 

exhaustion, while leaving unresolved the merits of the parties’ 

claims of underpayment and overpayment) was not appealable 

because “the ‘award’ did not meet the section 1283.4 standards 

for an award.” (Id. at p. 1131.) Again we explained, “Parties 

generally have broad leeway to structure an arbitration as they 

see fit, free from statutory constraints. . . . Parties’ requests for 

judicial approval or disapproval of arbitration awards are, 

however, subject to statutory constraints that limit when and 

under what circumstances courts may review arbitrators’ rulings. 

Those restrictions deprive trial courts of jurisdiction to review an 

award that does not qualify as an award under section 1283.4 

and appellate courts of jurisdiction to review on appeal a 

judgment that does not qualify as a final judgment under 

section 1294[, subdivision] (d).” (Ibid.)

In light of Judge and Kaiser Foundation, our jurisdiction to 

consider the merits of Kirk and Marshall’s appeal turns on two 

questions. First, is the arbitrator’s ruling granting a preliminary 

injunction an award within the meaning of section 1283.4 even 

though it left unresolved the merits of the parties’ claims? 

Second, if it is not, is an order dismissing a petition to vacate an 

arbitrator’s order that is not an award appealable, as the court 

held in Maplebear, supra, 26 Cal.App.5th 394, even though a 
12

superior court order granting the petition to vacate is not? We 

answer both questions “no.”4

a. The arbitrator’s grant of a preliminary injunction is 

not an award within the meaning of section 1283.4

Kirk and Marshall concede the arbitrator’s preliminary 

injunction ruling, a provisional order leaving unresolved all 

issues of liability and final relief for the parties, does not appear 

to be an award within the meaning of section 1283.4, as that 

statutory term was explained in Lonky, supra, 51 Cal.App.5th 

831. Nonetheless, they contend we should deem as final for 

judicial review purposes such an interim award of equitable 

relief. Their arguments are unpersuasive.

Kirk and Marshall first point out, if the executives had 

obtained a preliminary injunction from the superior court, the 

order would have been immediately subject to review in this 

court. But as Kirk and Marshall recognize, appellate review of a 

preliminary injunction is expressly authorized by section 904.1, 

subdivision (a)(6). (See County of San Diego v. State of California

4 We recognize our first question overlaps to a significant 

extent with the issue raised by Kirk and Marshall’s appeal. If 

the preliminary injunction ruling is not an award within the 

meaning of section 1283.4, the superior court likely would not 

have had jurisdiction to consider the petition to vacate. 

(See Judge, supra, 232 Cal.App.4th at p. 634, fn. 12.) However, 

as we explained in Kaiser Foundation, supra, 13 Cal.App.5th at 

page 1146, whether an arbitrator’s order is an award for purposes 

of the superior court’s jurisdiction to confirm or vacate it and 

whether the ensuing superior court order is appealable (rather 

than reviewable only by writ) are not identical questions, as 

illustrated by the decision in Hightower v. Superior Court (2001) 

86 Cal.App.4th 1415. 
13

(1997) 15 Cal.4th 68, 110 [“order granting the preliminary 

injunction was ‘immediately and separately appealable’ under . . . 

section 904.1, subdivision (a)(6)”].) Whether an arbitrator’s 

preliminary injunction, which is not enforceable as a court order, 

may be immediately reviewed by a court is an entirely different

question, which depends on the proper interpretation of the 

governing provisions of the CAA, not section 904.1. 

(Cf. Gastelum v. Remax Internat., Inc. (2016) 244 Cal.App.4th 

1016, 1022 [“there is a general prohibition against [appealing] 

nonfinal interlocutory orders in section 904.1, subdivision (a)(1) 

which applies in the arbitration context”].)

Next, Kirk and Marshall argue, although the court in 

Lonky explained a ruling that is not an award within the 

meaning of section 1283.4 is not subject to confirmation, 

correction or vacation by the superior court (Lonky, supra, 

51 Cal.App.5th at p. 844), Lonky also recognized that the court of 

appeal in Hightower v. Superior Court (2001) 86 Cal.App.4th 

1415 (Hightower) held, in appropriate circumstances, successive 

awards may be issued by an arbitrator and the absence of the

final award does not necessarily preclude judicial review of the 

interim award. (Lonky, at p. 846.) Hightower does not help Kirk

and Marshall. 

The dispute in Hightower concerned implementation of a 

buy-sell provision in an agreement between two 50 percent 

shareholders of a corporation. The arbitrator issued a partial 

final award that gave one shareholder the right to obtain 

financing to buy the shares of the other, reserving jurisdiction to 

determine issues that might arise if the option was exercised. 

(Hightower, supra, 86 Cal.App.4th at pp. 1426-1428.) The 

superior court denied the losing shareholder’s petition to vacate 
14

the award. The court of appeal—in a writ proceeding—

determined the superior court had jurisdiction to decide the 

petition, holding the award, although not final, satisfied the 

requirements of section 1283.4 because it “determined all issues 

that are necessary to the resolution of the essential dispute 

arising from Hightower’s breach. . . . Nothing remains to be 

resolved except those potential and conditional issues that 

necessarily could not have been determined . . . when the [award] 

was issued.” (Hightower, at p. 1439.)

As explained in Lonky, supra, 51 Cal.App.5th at page 845, 

what Hightower teaches is that, “in the context of a series of 

rulings . . . a particular ruling is an ‘award’ only if that ruling 

(1) ‘determine[s] all issues that are necessary to the resolution’ of 

‘“the controversy”’ being subject to arbitration, and (2) leaves 

unresolved only those ‘issues’ that are ‘potential,’ ‘conditional’ or 

that otherwise ‘could not have been determined’ at the time of the 

ruling.” Our analysis in Kaiser Foundation similarly emphasized 

the very limited nature of the Hightower decision: “The 

arbitrator in Hightower resolved all the issues necessary as of the 

date of the award to determine the parties’ controversy regarding 

the breach of the shareholder agreement and the appropriate 

remedy for the breach. The issues left open for resolution in a 

subsequent award simply could not have been decided as part of 

the partial final award because their nature and scope were 

uncertain as of the award date.” (Kaiser Foundation, supra, 

13 Cal.App.5th at p. 1149.) Here, in contrast to Hightower, no 

part of the controversy between Kirk and Marshall, on the one 

hand, and the executives, on the other, was resolved by the 

preliminary injunction. The issues left open were neither 
15

potential nor conditional based on events yet to occur; they were 

known and capable of being resolved.

Kirk and Marshall attempt to erase this clear distinction 

between the preliminary injunction here and the award in 

Hightower by arguing that whether interim equitable relief 

should be granted was a discrete matter; all issues necessary for 

resolution of that question were determined; and the remaining 

disputed matters could not be decided with the preliminary 

injunction ruling because discovery and an evidentiary hearing 

were necessary for the arbitrator to rule on the merits of the 

parties’ controversy. We rejected a substantially similar 

argument in Kaiser Foundation, where the parties argued the 

issues of preemption and exhaustion, decided in the initial phase 

of the arbitration proceeding, were, in effect, raised and 

completely resolved in a separate action for declaratory relief 

before the arbitration panel. (Kaiser Foundation, supra, 

13 Cal.App.5th at p. 1140.) Because the parties did not, in fact, 

initiate a separate arbitration proceeding for the preemption and 

exhaustion issues, however distinct from the underlying merits 

they may have been, the request that the arbitrators decide them 

first, we held, did not convert an interlocutory ruling into a final 

one subject to judicial review. (Id. at p. 1146 [“The text of 

section 1283.4 is clear: It specifies that an award must resolve 

the parties’ controversy, not a question within the controversy”].) 

Interim equitable relief, issued as part of an ongoing arbitration 

proceeding (indeed, in aid of, and to preserve, the ability of the 

arbitrator to resolve the dispute) is no less interlocutory and 

nonreviewable. (See Lonky, supra, 51 Cal.App.5th at p. 847 

[“What matters is whether the ruling ‘resolve[d] the parties’ 

controversy, not a question within the controversy.’ [Citation.] 
16

Were the rule otherwise, almost every ruling would be an ‘award’ 

because almost every ruling decides the issue it was called upon 

to decide”].)5

In a final argument for immediate judicial review of the 

preliminary injunction, after observing that no published 

California case has considered the precise question presented 

here—that is, judicial review of an arbitrator’s award of interim 

equitable relief— Kirk and Marshall urge us to follow analogous 

federal law on the issue (while acknowledging we are not bound 

to do so), which treats such orders as sufficiently final for the 

district courts to confirm and enforce them. The federal policy, 

however, is based on the provisions of the Federal Arbitration Act

(FAA) (9 U.S.C. § 1 et seq.), which differ from those in the CAA 

by allowing for immediate review of certain interlocutory or 

partial awards. (See Judge, supra, 232 Cal.App.4th at p. 631 

[“There are differences between the two provisions. For example, 

Section 16 of the FAA states that certain interlocutory orders are 

appealable; section 1294 does not”].) The question before us is 

not whether that policy is sound, as Kirk and Marshall suggest, 

but whether such resort to the courts is permissible in light of the 

limited scope of judicial review authorized by the CAA. For the 

reasons discussed, it is not. (See generally Moncharsh v. Heily & 

Blase (1992) 3 Cal.4th 1, 10 [“the decision to arbitrate grievances

evinces the parties’ intent to bypass the judicial system and thus

5 Similarly in Judge we explained that, unlike the partial 

final award in Hightower, the clause construction award, while 

arguably distinct from the merits of the parties’ dispute, did not 

“merely reserve potential or conditional issues relating to 

implementation of a remedy.” (Judge, supra, 232 Cal.App.4th at 

p. 636.)
17

avoid potential delays at the trial and appellate levels”]; Kaiser

Foundation, supra, 13 Cal.App.5th at p. 1150 [“it has long been

recognized that parties typically choose arbitration precisely to

avoid ‘the complications of traditional judicial review’”].)

b. The superior court’s order dismissing Kirk and 

Marshall’s petition lacks the finality required for it to 

be appealable

Quoting section 1294, subdivision (c), which makes 

appealable “[a]n order vacating an award unless a rehearing in 

arbitration is ordered,” we observed in Judge, supra, 

232 Cal.App.4th at page 633, “at first blush,” a superior court’s 

order vacating an arbitrator’s clause construction award without 

ordering a rehearing would appear to be appealable. However, 

referring to case law holding an order confirming an interim 

arbitration award is not appealable under sections 1287.4 and 

1294, subdivision (d)6—that is, where the merits of the parties’ 

underlying controversy have not been fully resolved—we 

explained the appeal then before us raised the question whether 

that same finality requirement applied to all orders listed in 

section 1294, including an order vacating a nonfinal arbitration 

award. We held it did. (Judge, at pp. 633-634.)

“There are good reasons for applying a finality requirement 

to orders listed in section 1294,” we stated. (Judge, supra, 

232 Cal.App.4th at p. 634.) “Without such a requirement, a wide 

variety of orders vacating (or dismissing petitions to vacate)

interim arbitration awards would be appealable, which would 

6 Section 1287.4 provides, “If an award is confirmed, 

judgment shall be entered in conformity therewith.” 

Section 1294, subdivision (d), as discussed, makes appealable a 

judgment confirming an arbitration award.
18

interfere with the ‘“efficient, streamlined procedure[]”’ that is 

supposed to be arbitration’s ‘fundamental attribute.’” (Ibid.)

In Kaiser Foundation, supra, 13 Cal.App.5th at page 1139, 

we reiterated the holding of Judge that the finality requirement 

of earlier case law applied to all orders listed in section 1294, not 

just to judgments entered under section 1294, subdivision (d), 

and that superior court orders confirming, vacating or dismissing 

petitions directed to interim and nonfinal arbitration awards 

were not appealable.7 Because the emergency arbitrator’s 

preliminary injunction ruling is not an award within the meaning 

of section 1283.4 and is anything but final, Kirk and Marshall’s 

appeal from the superior court’s dismissal of their petition to 

vacate that interim order must be dismissed as taken from a 

nonappealable order.

We recognize the court in Maplebear, supra, 26 Cal.App.5th 

394 reached a contrary conclusion, declining to follow the full 

reach of Judge and holding an order dismissing a petition to 

7 Even Hightower, supra, 86 Cal.App.4th 1415, which 

recognized an arbitrator was authorized to issue incremental 

awards and held under certain limited circumstances such an 

incremental award could be confirmed by the superior court, did 

not hold the resulting nonfinal order was appealable. Rather, 

reviewing the superior court’s interlocutory judgment in a writ 

proceeding, the court of appeal explained, “Appellate relief from 

such judgment, as is true with respect to interlocutory judgments 

generally, would be available by application for an extraordinary 

writ. The granting of appellate relief at this stage, however, 

would, as in all such cases, require a proper showing of 

justification for immediate appellate intervention; in other words, 

the aggrieved party would have to make a demonstration as to 

why an appeal from the judgment confirming the ultimate final 

award would not be adequate.” (Id. at p. 1440.)
19

vacate a partial final award regarding class arbitration for lack of 

jurisdiction was appealable. (Maplebear, at pp. 401-402.)8

Noting the superior court in Judge had reached the merits of the 

arbitrator’s interim ruling, the Maplebear court stated, “Our case 

is different. Here, we confront an appeal from a trial court order 

that dismissed a petition to vacate on the ground of no trial court 

jurisdiction. We conclude that the trial court order is appealable 

under section 1294, subdivision (b), as an order dismissing a 

petition to vacate an arbitration award.” (Id. at p. 402.) Nothing 

more was said. In particular, the court left unexplained why an 

order granting or dismissing a petition to vacate an interim 

award on the merits was not appealable notwithstanding the 

literal language in section 1294, subdivisions (b) and (c), but an 

order dismissing the same petition for lack of jurisdiction was.

In fact, the distinction identified in Maplebear makes little 

sense. By this reasoning, if the superior court fails to recognize 

the limits of its jurisdiction and grants a petition to vacate a 

nonfinal award that it ought not to have even considered—as was 

the case in Judge—the erroneous order is not appealable. But if 

8 The primary challenge to appealability in Maplebear, 

supra, 26 Cal.App.5th 394 was that the superior court had 

denied, rather than dismissed, the petition to vacate the 

arbitrator’s interim award, an order not listed as appealable in 

section 1294. (Maplebear, at pp. 400-401.) The court of appeal 

rejected that argument, reasoning the CAA does not contemplate 

denial of a petition to vacate an award in the circumstances 

presented by the case before it, and construed the superior court’s 

order as dismissing the petition to vacate an award. (Id. at 

p. 401.) The superior court here used both verbs, dismissing, as 

well as denying, Kirk and Marshall’s petition to vacate the 

preliminary injunction. 
20

the superior court properly understands that interim rulings by 

an arbitrator are not reviewable until the final award is entered 

and dismisses a premature petition to vacate, that entirely 

correct jurisdictional ruling is appealable. Nothing in the 

governing statutory language, let alone public policy encouraging 

arbitration as a speedy and relatively inexpensive method of 

dispute resolution with limited judicial intervention, supports 

that outcome.

We adhere to the holding and rationale of Judge and 

dismiss the appeal.

DISPOSITION

The appeal is dismissed. The parties are to bear their own 

costs in this proceeding.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.