ANTRANIK ZARTARIAN v. WORLDWIDE ENVIRONMENTAL PRODUCTS INC

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Court of Appeal, Second District, California.

ANTRANIK ZARTARIAN, Plaintiff and Appellant, v. WORLDWIDE ENVIRONMENTAL PRODUCTS, INC., Defendant and Respondent.

B219196

Decided: November 18, 2010

Law Offices of Haig P. Ashikian and Haig P. Ashikian for Plaintiff and Appellant. Pistone & Wolder, Thomas A. Pistone and Eric J. Medel for Defendant and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Plaintiff and appellant Antranik Zartarian (Zartarian) purports to appeal an order denying his motion for reconsideration.   Zartarian's motion sought reconsideration of an earlier order denying his petition to compel arbitration of his action against defendant and respondent Worldwide Environmental Products, Inc. (Worldwide).

No appeal lies from the order denying reconsideration of the earlier order.   Therefore, the purported appeal must be dismissed.

FACTUAL AND PROCEDURAL BACKGROUND1

On January 3, 2005, Zartarian filed suit against Worldwide arising out of the termination of his employment.

On December 8, 2005, after the parties stipulated to binding arbitration, the trial court dismissed the action and retained jurisdiction to enforce a subsequent arbitration award.

Three and a half years later, on or about June 12, 2009, Zartarian filed a petition to compel arbitration.

1. The July 28, 2009 hearing and ruling on the petition to compel arbitration.

On July 28, 2009, the petition to compel arbitration came on for hearing.   At the outset, the trial court tentatively ruled it would deny the petition to compel arbitration, based on Zartarian's lack of diligence in waiting nearly four years to initiate arbitration.

Zartarian's counsel, Haig Ashikian, attributed part of the delay to the fact Zartarian had filed a State Bar complaint against him in 2007, and counsel suffered a 90-day suspension from October 2008 to January 2009.

Worldwide, in turn, argued “[t]he period of time when there was no communication from Mr. Zartarian with his counsel is from August 2006 through September 2008.   Discussions about events that occurred in 2008 really do not refute the court's tentative and the reasoning behind it because there's no explanation as to 2007, end of 2006.   This case sat quietly for years without any attention.   Whether that's the fault of the client or the attorney I don't think is really an issue here.   It's just the fact that my client was being prejudiced by that.”

The trial court adhered to its tentative ruling and denied the petition to compel arbitration.

2. Motion for reconsideration.

Zartarian then filed a motion for reconsideration of the previous order denying the petition to compel arbitration.  (Code Civ. Proc., § 1008, subd (a).)

On September 14, 2009, the trial court denied reconsideration, stating Zartarian failed to show new or different facts, circumstances or law.

3. Notice of appeal.

On September 21, 2009, Zartarian filed notice of appeal.   The notice of appeal specified the September 14, 2009 order denying reconsideration.

CONTENTIONS

Zartarian contends:  there is no dispute that an agreement to arbitrate exists;  he did not waive his right to arbitrate;  Worldwide cannot claim waiver as an equitable defense due to its unclean hands.

Before addressing the merits, the threshold issue is appealability.

DISCUSSION

1. Appealability.

Zartarian's opening brief on appeal, in the statement of appealability, asserts the order denying his petition to compel arbitration is appealable pursuant to Code of Civil Procedure section 1294, subdivision (a).   However, the opening brief's statement of appealability is disingenuous.

Zartarian is correct in that an appeal lies from an order denying a petition to compel arbitration.  (Code Civ. Proc., § 1294, subd. (a).)  Therefore, Zartarian could have appealed the July 28, 2009 order denying his petition to compel arbitration.   However, the notice of appeal discloses Zartarian did not seek appellate review of said order.

The notice of appeal, which was filed September 21, 2009, specifies only the September 14, 2009 order denying Zartarian's motion for reconsideration of the previous order.2

The prevailing view is that no appeal lies from an order denying reconsideration.  (Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) 166 Cal.App.4th 1625, 1633.)   Even assuming an order denying reconsideration is appealable where the motion for reconsideration is made in part upon new grounds (ibid ;  Freeman v. State Farm Mut. Auto Ins. Co. (1975) 14 Cal.3d 473, 477, fn. 2;  9 Witkin, Cal. Procedure (5th ed.   2008) Appeal, § 165, pp. 241-242), the trial court found Zartarian's motion for reconsideration failed to show any new grounds which could not have been raised earlier.   Zartarian has not shown the trial court's determination in that regard was erroneous.

In sum, because no appeal lies from the September 14, 2009 order denying reconsideration, this court lacks jurisdiction to proceed.   The purported appeal must be dismissed.3

DISPOSITION

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. This summary is gleaned from the scant record on appeal..  FN1. This summary is gleaned from the scant record on appeal.

FN2. We note the appellant's civil case information statement (p. 1), like the appellant's opening brief (p. 5.), asserts the appeal is taken from the July 28, 2009 order denying the petition to compel arbitration.   However, the notice of appeal speaks for itself.   Zartarian appealed the September 14, 2009 order denying reconsideration..  FN2. We note the appellant's civil case information statement (p. 1), like the appellant's opening brief (p. 5.), asserts the appeal is taken from the July 28, 2009 order denying the petition to compel arbitration.   However, the notice of appeal speaks for itself.   Zartarian appealed the September 14, 2009 order denying reconsideration.

FN3. Even assuming Zartarian had perfected an appeal from the July 28, 2009 order denying his petition to compel arbitration, the order would have been summarily affirmed.   It is rudimentary that an appellant affirmatively must show error by an adequate record.  (9 Witkin, Cal. Procedure, supra, Appeal, § 628, p. 704.)   Here, Zartarian has failed to supply this court with copies of the following documents:  his petition to compel arbitration and any supporting declarations;  and Worldwide's response to that petition and any supporting declarations.   The clerk's transcript consists solely of (1) the appellant's notice designating the record on appeal;  (2) a case summary consisting of the superior court docket entries;  (3) the December 28, 2005 minute order dismissing the action but retaining jurisdiction to enforce any arbitration award;  (4) the September 14, 2009 minute order denying the motion for reconsideration;  (5) notice of errata filed August 31, 2009 in connection with the motion for reconsideration;  and (6) the notice of appeal filed September 21, 2009.   Without copies of the papers filed in connection with the petition to compel and opposition thereto, this court is in no position to review the July 28, 2009 order denying Zartarian's petition to compel arbitration..  FN3. Even assuming Zartarian had perfected an appeal from the July 28, 2009 order denying his petition to compel arbitration, the order would have been summarily affirmed.   It is rudimentary that an appellant affirmatively must show error by an adequate record.  (9 Witkin, Cal. Procedure, supra, Appeal, § 628, p. 704.)   Here, Zartarian has failed to supply this court with copies of the following documents:  his petition to compel arbitration and any supporting declarations;  and Worldwide's response to that petition and any supporting declarations.   The clerk's transcript consists solely of (1) the appellant's notice designating the record on appeal;  (2) a case summary consisting of the superior court docket entries;  (3) the December 28, 2005 minute order dismissing the action but retaining jurisdiction to enforce any arbitration award;  (4) the September 14, 2009 minute order denying the motion for reconsideration;  (5) notice of errata filed August 31, 2009 in connection with the motion for reconsideration;  and (6) the notice of appeal filed September 21, 2009.   Without copies of the papers filed in connection with the petition to compel and opposition thereto, this court is in no position to review the July 28, 2009 order denying Zartarian's petition to compel arbitration.

CROSKEY, J. ALDRICH, J.