Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEALS from judgments and order of the Superior Court of San Diego County, Patricia A. Y. Cowett, Judge, Super. Ct. No. GIC845037
IRION, J.
Banc of America Investment Services, Inc. (BAIS) and David Ohanian appeal from (1) judgments entered in favor of Michael Parziale, Daniel Morilak and Richard Ina (together, plaintiffs) on an order confirming an arbitration award; and (2) the trial court's order denying BAIS and Ohanian's motion for a preliminary injunction. Plaintiffs cross-appeal from the trial court's denial of their request for an award of attorney fees incurred in connection with their opposition to BAIS and Ohanian's petition to vacate the arbitration award. Plaintiffs also move to dismiss both appeals filed by BAIS and Ohanian.
As we will explain, we conclude that we lack jurisdiction over both appeals filed by BAIS and Ohanian and over the cross-appeal, and we accordingly dismiss all of the pending appeals. We also deny plaintiffs' request that BAIS and Ohanian be ordered to pay the attorney fees incurred by plaintiffs in connection with their motion to dismiss.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Plaintiffs' Recruitment, Employment and Termination by BAIS
Each of the plaintiffs was employed as a financial advisor and securities broker by Merrill Lynch Business Financial Services, Inc., in Cleveland, Ohio. According to plaintiffs, they were recruited by BAIS for positions in San Diego. Plaintiffs claim that while recruiting them, BAIS made certain representations to them about the access that they would have to customers at certain branches of BAIS's retail banking subsidiary, Bank of America, N.A., and the amount of deposits held in those branches. Plaintiffs agreed to accept BAIS's offers of employment beginning in August 2003 and relocated to San Diego with their families.
BAIS made loans to each of the plaintiffs in August and October 2003, which were to be repaid over the course of six years. Parziale received loans in the amount of $400,000 and $422,000. Morilak received loans in the amount of $42,300 and $110,500, and Ina received loans in the amount of $367,000 and $291,00. The loans were evidenced by promissory notes. Each of the six annual principal payments due under the promissory notes corresponded to amounts that BAIS agreed to pay to plaintiffs under bonus agreements entered into in August and October 2003, assuming plaintiffs' continued employment at BAIS.
Each of the plaintiffs signed an acknowledgement of the promissory notes, which stated: "This loan does not constitute a bonus, and if I voluntarily terminate or am terminated for any reason, all outstanding principal and interest under the Note will become immediately due and payable to [BAIS] except as otherwise provided by the Note." Further, each of the promissory notes stated that BAIS had the right to declare it "immediately due and payable, without notice or demand, if (a) Employee's employment with [BAIS] is voluntarily or involuntarily suspended or terminated."
The promissory notes each contained an arbitration provision, stating that "[a]ny controversy or claim arising out of or relating to this Note or breach thereof shall be settled by arbitration in accordance with the rules of the National Association of Securities Dealers, Inc." Further, in connection with their employment at BAIS, plaintiffs each signed a form (Form U4, Uniform Application for Securities Industry Registration or Transfer), which stated: "I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions, or bylaws of the SROs indicated in Section 4 (SRO Registration) as may be amended from time to time and that any arbitration award entered against me may be entered as a judgment in any court of competent jurisdiction."
According to plaintiffs, in February 2004, they discovered that BAIS had allegedly made misrepresentations to induce them to leave their former employment. Among other things, plaintiffs claim that BAIS overstated the extent of customer assets at the relevant branches of Bank of America, N.A., and thus misrepresented to plaintiffs the volume of commissions that they could anticipate generating at BAIS. Plaintiffs also allege that they spoke to other BAIS employees whom had been recruited to leave their previous employment by means of alleged misrepresentations. Plaintiffs claim that they complained to BAIS about the alleged misrepresentations and, as a result, BAIS terminated plaintiffs' employment in November 2004 and then interfered with plaintiffs' preexisting client relationships.
B. The Lawsuit and the Arbitration
On March 29, 2005, plaintiffs filed a lawsuit against BAIS and Ohanian (plaintiffs' lawsuit). According to the complaint, Ohanian was a "Market Director" at BAIS, made misrepresentations to induce plaintiffs to come to work at BAIS, and participated in plaintiffs' termination. Plaintiffs asserted causes of action for violation of Labor Code section 970; violation of Labor Code section 232; fraud and deceit; negligent misrepresentation; wrongful termination in violation of public policy; breach of oral contract; tortious interference with prospective economic advantage; violation of Labor Code section 1050; defamation; promissory estoppel; and declaratory relief.
Plaintiffs' lawsuit also contained claims asserted by plaintiffs' spouses. Those claims were eventually resolved in favor of BAIS and Ohanian through summary judgment.
Labor Code section 970 provides: "No person, or agent or officer thereof, directly or indirectly, shall influence, persuade, or engage any person to change from one place to another in this State or from any place outside to any place within the State, or from any place within the State to any place outside, for the purpose of working in any branch of labor, through or by means of knowingly false representations, whether spoken, written, or advertised in printed form, concerning either: [¶] (a) The kind, character, or existence of such work; [¶] (b) The length of time such work will last, or the compensation therefore . . . ."
Labor Code section 232 provides: "No employer may do any of the following: [¶] (a) Require, as a condition of employment, that an employee refrain from disclosing the amount of his or her wages. [¶] (b) Require an employee to sign a waiver or other document that purports to deny the employee the right to disclose the amount of his or her wages. [¶] (c) Discharge, formally discipline, or otherwise discriminate against an employee who discloses the amount of his or her wages."
Labor Code section 1050 states: "Any person, or agent or officer thereof, who, after having discharged an employee from the service of such person or after an employee has voluntarily left such service, by any misrepresentation prevents or attempts to prevent the former employee from obtaining employment, is guilty of a misdemeanor."
The declaratory relief sought in the complaint was a judgment determining that plaintiffs were not obligated to repay the promissory notes "and/or that [plaintiffs] are entitled to offset any obligations they may owe to BAIS against the damages that [plaintiffs] are entitled to recover herein."
On the same day, BAIS commenced an arbitration against plaintiffs by filing a statement of claim with NASD Dispute Resolution, Inc. BAIS alleged that it had made a demand against plaintiffs for payment of all amounts of principal and interest due and owing under the promissory notes, but that plaintiffs had not paid. BAIS sought to recover from plaintiffs all amounts that BAIS claimed were due and owing under the promissory notes.
BAIS filed a motion to compel arbitration of plaintiffs' lawsuit. On August 16, 2005, the trial court granted the motion to compel arbitration in part, ruling that all of plaintiffs' claims, except the cause of action for violation of Labor Code section 232, must be arbitrated. The trial court stayed all proceedings in the action until completion of the arbitration.
The trial court denied the petition to compel arbitration as to the claims brought by plaintiffs' spouses and ordered that those claims be stayed pending the completion of the arbitration.
Several weeks before the trial court's ruling on the motion to compel arbitration, plaintiffs filed an answer and counterclaim in the arbitration proceeding. Plaintiffs' answer in the arbitration proceeding asserted several defenses, including allegations that (1) BAIS acted with unclean hands; (2) plaintiffs were fraudulently induced to execute the promissory notes; (3) BAIS's breach of contract excused plaintiffs' performance under the notes; and (4) if any amount was owing to BAIS under the promissory notes, it should be offset by the damages caused by BAIS.
Plaintiffs' arbitration counterclaim was filed against both BAIS and, as a third party claim, against Ohanian. The factual allegations in plaintiffs' arbitration counterclaim were the same as the factual allegations in plaintiffs' lawsuit. Plaintiffs alleged causes of action for violation of Labor Code section 970; fraud and deceit; negligent misrepresentation; wrongful termination in violation of public policy; breach of oral contract; tortious interference with prospective economic advantage; violation of Labor Code section 1050; defamation; promissory estoppel; and declaratory relief. Unlike the complaint in plaintiffs' lawsuit, the arbitration counterclaim did not include a claim for violation of Labor Code section 232.
On March 13, 2006, plaintiffs dismissed the claims for wrongful termination in violation of public policy and for declaratory relief from their arbitration counterclaim. In their notice of dismissal, plaintiffs stated that they were dismissing their claim for wrongful termination in violation of public policy, without prejudice, "based upon the fact that elements of such claim are being adjudicated in the California Superior Court, County of San Diego, and thus such dismissal will reduce the risk for unnecessary redundancy."
The eventual decision of the arbitrators acknowledged that plaintiffs had dismissed the claims for wrongful termination in violation of public policy and declaratory relief.
After holding 12 days of proceedings, the arbitration panel issued an award in favor of plaintiffs in September 2006. The arbitration award stated:
"After considering the pleadings, testimony, and evidence presented at the hearing, the Panel decided in full and final resolution of the issues submitted for determination as follows:
"1) BAIS'[s] claims are denied in their entirety.
"2) BAIS and Ohanian are jointly and severally liable to and shall pay Ina the sum of $675,000.00 in compensatory damages.
"3) BAIS and Ohanian are jointly and severally liable to and shall pay Morilak the sum of $200,000.00 in compensatory damages.
"4) BAIS and Ohanian are jointly and severally liable to and shall pay Parziale the sum of $733,000.00 in compensatory damages.
"5) The parties shall bear their respective costs, including attorney's fees.
"6) All other relief requested and not expressly granted is denied."
The arbitrators did not explain the basis for their decision, and the parties did not make a specific request for findings.
Following the arbitration award, the stay in the trial court was lifted and plaintiffs amended their complaint. In the amended complaint, plaintiffs asserted only two causes of action, which were asserted only against BAIS, not Ohanian — (1) compensatory and punitive damages for violation of Labor Code section 232; and (2) recovery of a civil penalty under Labor Code section 2699, premised on BAIS's alleged violation of Labor Code section 232. The cause of action for violation of Labor Code section 232 alleged: "The fact that [plaintiffs] engaged in discussions with other employees of [BAIS], regarding the terms of their respective compensation was a substantial motivating factor in Defendants' discriminatory and retaliatory decision to terminate [plaintiffs]."
The amended complaint also contained claims brought by plaintiffs' spouses against both BAIS and Ohanian. As we have noted, those claims have been resolved through summary judgment.
In general terms, Labor Code section 2699 authorizes an aggrieved employee to bring a civil action (pursuant to the procedures set forth in Lab. Code, § 2699.3) to collect civil penalties for violation of the Labor Code that would otherwise be collectable by the Labor and Workforce Development Agency or any of its departments, divisions, commissions, boards, agencies, or employees.
BAIS and Ohanian answered the amended complaint, alleging as an affirmative defense, among others, that the causes of action were barred by the doctrine of res judicata and principles of collateral estoppel.
C. The Trial Court Rulings at Issue in the Instant Appeals
In October 2006, each of the plaintiffs filed a petition to confirm the arbitration award in the same action in which their lawsuit was already pending. BAIS and Ohanian opposed the petitions to confirm by filing a petition to vacate the arbitration award, expressly stating that the petition to vacate constituted their response and opposition to the petitions to confirm. The petition to vacate argued that the arbitrators exceeded their powers by denying BAIS recovery on the promissory notes in that the arbitrators engaged in an " 'arbitrary remaking' " of the parties' contracts, and that the portion of the award denying recovery to BAIS should be vacated. Notably, the petition to vacate sought no relief with respect to the portion of the arbitration award that required BAIS and Ohanian to pay compensatory damages to plaintiffs.
As Ohanian was not a party to BAIS's affirmative claims against plaintiffs in the arbitration, it is not clear why Ohanian was made a party to the motion to vacate that portion of the arbitration award denying BAIS's claims against plaintiffs. Indeed, the opening appellate brief filed by BAIS and Ohanian acknowledges that "Ohanian had no claims against the plaintiffs under the promissory notes."
Plaintiffs opposed the petition to vacate and, based on an attorney fee provision in the promissory notes, requested an award of the $4,200 in attorney fees that they had incurred in connection with the petition to vacate.
The trial court denied the petition to vacate, confirmed the arbitration awards, and denied plaintiffs' request for attorney fees. With respect to the petition to vacate, the trial court explained, "There is no basis for a finding that the arbitration panel exceeded its powers. The Court is not persuaded that the arbitration panel arbitrarily rewrote the promissory notes based on the panel's decision to deny Defendant's claims on the promissory notes. There is also nothing to show or even suggest that the panel's award was not rationally related to the dispute and/or the defenses presented or that the award was not within the panel's scope of authority."
On February 13, 2007, the trial court entered three judgments with respect to the order confirming the arbitration award, adjudging that each of the plaintiffs was to recover from BAIS and Ohanian, jointly and severally, the amount awarded by the arbitration panel, together with interest.
While the petition to confirm the arbitration award and the petition to vacate were pending, BAIS and Ohanian filed a motion that they labeled "Motion for Preliminary Injunction." Through their motion, BAIS and Ohanian sought to enjoin plaintiffs from litigating the causes of action in the amended complaint. BAIS and Ohanian contended that subject matter presented in plaintiffs' Labor Code section 232 cause of action had already been litigated in the arbitration and that injunctive relief was thus warranted under Code of Civil Procedure section 526, subdivision (a)(6) " 'to prevent a multiplicity of proceedings.' " They also argued that the litigation of plaintiffs' amended complaint should be enjoined because principles of res judicata and collateral estoppel bar plaintiffs from relitigating their Labor Code section 232 cause of action, and that the Labor Code section 2699 cause of action was barred by res judicata because it "could have been adjudicated" in the arbitration.
Ohanian purported to be a moving party, although neither of the two causes of action asserted by plaintiffs in the amended complaint was pled against Ohanian.
On February 22, 2007, the trial court denied the motion for preliminary injunction. The trial court stated that ". . . Defendants have failed to show that Plaintiffs' claim for violation of Labor Code [section] 232 — which prohibits discharge, formal discipline, or discrimination by an employer against an employee for disclosing the amount of his or her wages — was actually litigated and/or determined by the arbitration panel. Accordingly, Plaintiffs' claim is not barred by res judicata or collateral estoppel." The trial court concluded that because the cause of action for recovery under Labor Code section 2699 is derivative of the Labor Code section 232 cause of action, it also was not barred by res judicata or collateral estoppel.
BAIS and Ohanian filed two separate notices of appeal on March 8, 2007. The first appeal was from the judgments on the order confirming the arbitration award. The second appeal was from the order denying the motion for preliminary injunction. The two appeals were assigned a single appellate case number. Plaintiffs filed a cross-appeal, challenging the trial court's order denying their request for attorney fees incurred in opposing the motion to vacate the arbitration award.
Although not identified as an issue in either of their notices of appeal, BAIS and Ohanian argue in their appellate briefing the additional issue of whether the trial court erred in denying their motion to compel arbitration of the Labor Code section 232 cause of action. As the issue was not appealed, we do not address it. We express no view on whether, in a properly noticed appeal from a final judgment, BAIS and Ohanian may obtain review of the trial court's decision denying their motion to compel arbitration of the Labor Code section 232 cause of action.
D. Plaintiffs' Motion to Dismiss the Appeals
Plaintiffs have filed a motion to dismiss both appeals. With respect to the appeal from the judgments on the order confirming the arbitration award, plaintiffs argue that because their amended complaint remained to be resolved, the judgments did not have the finality required to be appealable. With respect to the appeal from the order denying the preliminary injunction, plaintiffs argue that motion was not substantively a motion for a preliminary injunction, but rather a motion for summary judgment or a permanent injunction, and thus BAIS and Ohanian cannot appeal from the order denying the motion. BAIS and Ohanian filed an opposition to the motion to dismiss the appeal, and upon our request, plaintiffs filed a reply to that opposition. We also ordered that the motion to dismiss would be considered together with the appeal.
In their motion to dismiss, plaintiffs also argue that the positions taken in the two appeals are inconsistent — as one appeal seeks to reverse the order confirming the arbitration award, and the other relies on the finality of the arbitration award. Plaintiffs argue, "Appellants['] two appeals cannot possibly co-exist. As long as Appellants are appealing to reverse the arbitrators' decision, they cannot contend that decision is 'final' for purposes of res judicata. And, as long as Appellants are asserting on appeal that the arbitrators' decision is final for purposes of res judicata, they cannot ask this Court to reverse it." We do not address this argument because it goes to the merits of the appeals, which, as we will explain, we lack jurisdiction to consider.
II
DISCUSSION
As a threshold matter, we consider plaintiffs' motion to dismiss the appeals. As we will explain, we conclude that neither the order denying the motion for preliminary injunction nor the judgments on the order confirming the arbitration award are appealable, and we accordingly dismiss the appeals because we lack jurisdiction over them. (See Jennings v. Marralle (1994) 8 Cal.4th 121, 126 ["The existence of an appealable judgment is a jurisdictional prerequisite to an appeal"]; Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696 (Griset) ["A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment"].)
A. Motion to Dismiss the Appeal of the Judgment on the Order Confirming the Arbitration Award
Plaintiffs move to dismiss the appeal from the judgments on the order confirming the arbitration award. They argue that the judgments are not final appealable judgments because there are still issues left to be litigated in the trial court, and thus the appeal violates the " 'one final judgment' rule," which is "a fundamental principle of appellate practice that prohibits review of intermediate rulings by appeal until final resolution of the case." (Griset, supra, 25 Cal.4th at p. 697.) Specifically, plaintiffs point out that their claims for recovery under Labor Code section 232 and Labor Code section 2699 are still pending, and they argue that a final judgment will exist when those claims are ultimately resolved.
In support of their motion to dismiss, plaintiffs rely on Rubin v. Western Mutual Ins. Co. (1999) 71 Cal.App.4th 1539 (Rubin), which established that a judgment on an order confirming an arbitration award lacks the finality required for an appeal when causes of action remain to be litigated in the trial court. In Rubin, the plaintifffiled a lawsuit against her insurance carrier for failure to provide coverage for property damage sustained in an earthquake. (Id. at pp. 1541-1542.) The issue of the dollar value of the property damage was then referred to arbitration and decided. Although the insurance carrier's liability under the four causes of action alleged in plaintiff's complaint remained to be litigated, the arbitration award on the damages issue was confirmed and entered as a judgment by the trial court. (Id. at p. 1543.) The insurance carrier filed an appeal from the judgment on the order confirming the arbitration award. Because plaintiffs' causes of action were still being litigated, Rubin concluded that the judgment was not final and dismissed the appeal. (Id. at pp. 1547, 1549.)
Rubin explained that although Code of Civil Procedure section 1294 states that " '[a]n aggrieved party may appeal from: . . . (d) A judgment entered pursuant to this title' " (i.e., concerning arbitration), Code of Civil Procedure section 1287.4 makes clear that a judgment entered on an order confirming an arbitration award " 'is subject to all the provisions of law relating to a judgment in a civil action.' " (Rubin, supra, 71 Cal.App.4th at pp. 1548, fn. 6, 1547.) Rubin concluded that "[i]n this context, all means all," including the prohibition on appeal of interlocutory judgments contained in Code of Civil Procedure section 904.1, subdivision (a)(1). (Rubin,at p. 1547.) Rubin thus establishes that when causes of action remain to be litigated in the trial court, a judgment on an order confirming an arbitration award lacks the finality required for an appeal. (Ibid.)
Applying the principle set forth in Rubin, we conclude that the appeal from the judgments on the order confirming the arbitration award must be dismissed. Because plaintiffs' two causes of action remain to be resolved in the trial court, there is no final judgment in the action, and the judgments on the order confirming the arbitration award therefore lack the required finality. "An appeal from a judgment that is not final violates the one final judgment rule and must therefore be dismissed . . . ." (Sullivan, supra, 15 Cal.4th at pp. 307-308, citations omitted.)
BAIS and Ohanian argue that Rubin, supra, 71 Cal.App.4th 1539, 1547-1548, is distinguishable on the ground that the arbitrator's award in Rubin did not resolve any of the plaintiff's four causes of action and instead resolved only the necessary issue of the amount of property damage, whereas in this case the arbitrators' award resolved several of the causes of action between the parties. We do not perceive this distinction as significant. The important point is that causes of action remained to be litigated in both this case and Rubin. " 'A judgment is final "when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined." ' " (Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304 (Sullivan).) Here, the litigation between the parties was not terminated by the judgments, and therefore the judgments were not final. We also attach no significance to the fact that the issues addressed in the arbitration and the issues remaining to be litigated might be characterized as separate and independent issues. "[A]n appeal cannot be taken from a judgment that fails to complete the disposition of all the causes of action between the parties even if the causes of action disposed of by the judgment . . . may be characterized as 'separate and independent' from those remaining." (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 743.)
In opposing plaintiffs' motion to dismiss the appeals, BAIS and Ohanian argue that even if the judgments on the order confirming the arbitration award are not sufficiently final to permit an appeal, they may nevertheless appeal from the judgments under the collateral order doctrine. Under the collateral order doctrine "there is an exception to the one final judgment rule when there is a final determination of some collateral matter distinct and severable from the general subject of the litigation. If this determination requires the aggrieved party immediately to pay money or perform some other act, then that party is entitled to appeal even though litigation of the main issues continues." (City of Morgan Hill v. Brown (1999) 71 Cal.App.4th 1114, 1128 (Morgan Hill).) "Over 50 years ago, our Supreme Court stated the minimum conditions for the appealability of a collateral order: 'It is not sufficient that the order determine finally for the purposes of further proceedings in the trial court some distinct issue in the case; it must direct the payment of money by appellant or the performance of an act by or against him.' " (Lester v. Lennane (2000) 84 Cal.App.4th 536, 561 (Lester), quoting Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 119.)
The collateral order doctrine does not apply here because BAIS and Ohanian are not challenging the portion of the arbitration award that requires them to pay money to plaintiffs. As stated in BAIS and Ohanian's appellate briefing, ". . . BAIS has never challenged in any court the arbitrator's decision to award plaintiffs collectively $1.6 million on their affirmative claims. In its petition to vacate, BAIS challenged only the portion of the arbitrators' award denying BAIS relief on its affirmative claims against the plaintiffs. . . . BAIS thereby waived any right to challenge any other portion of the arbitration award." Because BAIS and Ohanian are not challenging the portion of the judgment awarding $1.6 million to plaintiffs, this appeal does not concern an order that " 'direct[s] the payment of money by appellant or the performance of an act by or against him' " as required for the application of the collateral order doctrine. (Lester, supra,84 Cal.App.4th at p. 561.)
We need not, and do not, determine whether the judgment on an order confirming an arbitration award can properly be viewed as a "collateral matter distinct and severable from the general subject of the litigation." (Morgan Hill, supra, 71 Cal.App.4th at p. 1128.)
We will accordingly grant plaintiffs' motion to dismiss the appeal from the judgments on the order confirming the arbitration award.
B. Dismissal of the Appeal from the Order Denying the Preliminary Injunction
We next address plaintiffs' argument that the order denying the motion for preliminary injunction is not an appealable order.
There is no dispute that an order denying a motion for preliminary injunction is normally appealable pursuant to Code of Civil Procedure section 904.1, subdivision (a)(6). However, relying on the principle that "[i]t is the substance and effect of the court's order or judgment and not the label that determines whether or not it is appealable" (Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 645, italics added), plaintiffs argue that the motion brought by BAIS and Ohanian was not in substance a motion for a preliminary injunction, and thus the order denying it is not appealable. As we will explain, we agree.
A preliminary injunction is a vehicle through which a plaintiff may seek temporary injunctive relief pending a final decision on the merits. A preliminary injunction " 'amounts to a mere preliminary or interlocutory order to keep the subject of litigation in status quo pending the determination of the action on its merits,' " and "the affirmance or reversal of its denial does not and cannot eliminate the need for additional proceedings on the merits." (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 191.) BAIS and Ohanian did not seek temporary injunctive relief through their motion. Instead, they sought a ruling that would conclusively and permanently prevent plaintiffs from going forward with their claims based on principles of res judicata and collateral estoppel. Thus, in substance, BAIS and Ohanian were seeking a ruling on the affirmative defenses of res judicata and collateral estoppel asserted in their answer.
A pretrial ruling on an affirmative defense is normally sought through a motion for summary adjudication or summary judgment (see Code Civ. Proc., § 437c, subds. (a), (f)(2)). An order denying a motion for summary judgment or summary adjudication is not appealable until final judgment is entered in the action. (Martin Marietta Corp. v. Insurance Co. of North America (1995) 40 Cal.App.4th 1113, 1121, fn. 4; Code Civ. Proc., § 904.1, subd. (a)(1).)
Because we must focus on the substance of BAIS and Ohanian's motion, rather than the label attached to it, we conclude that the trial court's order denying the motion is not in substance an order ruling on a motion for a preliminary injunction, but instead was analogous to a ruling on a summary judgment motion concerning affirmative defenses, and thus is not appealable. (See Melchor Investment Co. v. Rolm Systems (1992) 3 Cal.App.4th 587, 592 [relying on the substance rather than the label attached to a motion to conclude that an order refusing to preliminarily enjoin arbitration is equivalent to a nonappealable order compelling arbitration, and thus not appealable].) Accordingly, we dismiss the appeal of the order denying the motion for a preliminary injunction.
BAIS and Ohanian point out that in opposing the motion in the trial court, plaintiffs did not take issue with the labeling of the motion as a motion for a preliminary injunction. Plaintiffs' failure to raise the issue in the trial court has no bearing on the jurisdictional question of appealability. In the trial court, plaintiffs apparently made the tactical decision to oppose the motion by addressing the merits of the res judicata and collateral estoppel arguments, and did not address whether the motion was properly brought as a motion for a preliminary injunction. Now that BAIS and Ohanian have attempted to appeal from the order denying the motion, the proper label for the motion has become crucially relevant to our appellate jurisdiction, and plaintiffs are entitled to make the argument that we lack jurisdiction because the motion was not in substance a motion for a preliminary injunction, even though they did not contest the label for the motion in the trial court. Moreover, we reject the suggestion that by not earlier objecting to the characterization of the motion, plaintiffs waived their right to challenge the appealability of the order. "The parties cannot create appellate jurisdiction by consent, waiver, or estoppel." (Vivid Video, Inc. v. Playboy Entertainment Group, Inc. (2007) 147 Cal.App.4th 434, 440-441.)
C. Plaintiffs' Cross-appeal
Plaintiffs have filed a cross-appeal of the trial court's denial of their request for an award of attorney fees incurred in opposing the petition to vacate the arbitration award. In their motion to dismiss the appeal, plaintiffs state that if we dismiss BAIS and Ohanian's appeals, we may dismiss their cross-appeal without prejudice to their ability to raise the issue after an appealable final judgment is entered. Indeed, the approach suggested by plaintiffs is proper and necessary. We lack jurisdiction over the cross-appeal for the same reason we lack jurisdiction over BAIS and Ohanian's appeals, namely, final judgment has not yet been entered in this action. We thus dismiss plaintiffs' cross-appeal. Plaintiffs may raise the issue contained in their cross-appeal either through an appeal or cross-appeal after a final judgment is entered in this action.
D. Attorney Fees Incurred by Plaintiffs in Connection with the Motion to Dismiss
In their motion to dismiss the appeals, plaintiffs request that we award them the attorney fees that they have incurred in connection with that motion.
As authority for their request, plaintiffs cite California Rules of Court, rule 8.276(e), which gives the appellate court the authority to "impose sanctions . . . on a party . . . for: [¶] (A) Taking a frivolous appeal or appealing solely to cause delay." In their reply briefing on the motion to dismiss, plaintiffs also cite Code of Civil Procedure section 907, which states that "[w]hen it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just."
Exercising our discretion in the matter, we deny plaintiffs' request that, as a sanction, we require BAIS and Ohanian to pay the attorney fees incurred in connection with the motion to dismiss. Based on the complexity of the legal issues presented by the motion to dismiss, we conclude that it is possible that BAIS and Ohanian reasonably and in good faith rejected plaintiffs' request to voluntarily dismiss the appeals in order to obtain a definitive ruling from us on the issues presented. We note that because BAIS and Ohanian may have been uncertain about our view on finality, they had to file an appeal to protect their appellate rights. (See Maides v. Ralphs Grocery Co. (2000) 77 Cal.App.4th 1363, 1366 [the failure to file a notice of appeal from a final judgment within the applicable time period deprives the appellate court of jurisdiction over the appeal].)
DISPOSITION
Plaintiffs' motion to dismiss both of the appeals filed by BAIS and Ohanian is granted, and those appeals are dismissed. Plaintiffs' cross-appeal is also dismissed. We deny plaintiffs' request to require BAIS and Ohanian to pay plaintiffs' attorney fees incurred in connection with the motion to dismiss. When a final judgment is entered in this action, the parties may file notices of appeal raising challenges to any appealable interlocutory rulings or judgments of the trial court. Plaintiffs are awarded all their costs on appeal with respect to both the appeals filed by BAIS and Ohanian and plaintiffs' cross-appeal.
WE CONCUR: BENKE, Acting P. J., HALLER, J.