Long Beach Iron Works, Inc. v. International Molders & Allied Workers Union of North America, Local 374

Opinion

KAUS, P. J.

The superior court proceeding which is the genesis for the motion to dismiss on appeal to which this opinion is addressed, started with a petition to vacate an arbitration award, filed by the respondent and moving party in this court on August 5, 1971.

Before the petition was heard the appellants, on September 7, 1971, filed a motion for an order confirming the award. Respondent’s petition and appellants’ motion were both heard on October 19, Í971. On January 10, 1972, the court filed findings to the effect that the arbitrator had based his award on information not obtained in the arbitration hearing, that respondent’s rights were substantially prejudiced by the arbitrator’s conduct and that the award could not be corrected without affecting the merits of the decision on the controversy submitted to arbitration. From these findings the court concluded that the arbitrator’s conduct had violated section 1282.2, subdivision (g) of the Code of Civil Procedure

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and that the award should be vacated under the provisions of section 1282.2. An order was made vacating the award, ordering the controversy to be resubmitted to a different arbitrator and “denying”

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appellants’ motion to confirm the award. Appel

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lants’ notice of appeal is from the order of January 10, 1972, “and the whole thereof.”

Respondent now moved to dismiss the appeal on the ground that under section 1294, subdivision (c) an order vacating an award is not appeal-able if a rehearing in arbitration is ordered as was the case here. Appellant resists the motion, pointing out that it appealed from the whole of the order of January 10 which includes an order denying appellants’ motion to confirm the award. Such an order is supposedly appealable under section 1294, subdivision (b).

The pertinent provisions of section 1294 read as follows: “An aggrieved party may appeal from:

“(b) An order dismissing a petition to confirm, . . .