Filed 8/24/26 Jones v. Kaiser Foundation Health Plan CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
EMERTHA JONES, B349611
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 24STCP02187)
v.
KAISER FOUNDATION HEALTH
PLAN, INC. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Doreen B. Boxer, Judge. Affirmed.
Emertha Jones, in pro. per., for Plaintiff and Appellant.
Cole Pedroza, Kenneth R. Pedroza, Dana L. Stenvick;
Manning│Kass and Chris Datomi for Defendants and
Respondents.
__________________________
INTRODUCTION
Emertha Jones initiated an arbitration against Kaiser
Foundation Health Plan, Inc., Kaiser Foundation Hospitals, and
Southern California Permanente Medical Group (collectively,
Kaiser) for alleged medical malpractice by their physicians. The
arbitrator concluded that Jones’s claim was time-barred and
issued an award in favor of Kaiser. Jones filed a petition in
superior court to vacate the award. Kaiser filed a cross petition
to confirm the award. The superior court denied the petition to
vacate, granted the petition to confirm, and entered judgment in
Kaiser’s favor.
Jones now appeals. Judicial review of an arbitration award
is limited, and we do not find any merit to Jones’s challenges to
the award in this case. Code of Civil Procedure1 section 340.5
sets forth the statute of limitations for medical malpractice,
which is “three years after the date of injury or one year after the
plaintiff discovers, or through the use of reasonable diligence
should have discovered, the injury, whichever occurs first.” Jones
asserts she was denied the opportunity to present evidence that
the three-year limit was tolled, but both her pleadings below and
in this court show that more than one year lapsed after she
discovered her injury before she brought her action against
Kaiser. As section 340.5 requires applying the one-year limit if it
“occurs first,” Jones’s claim is time-barred regardless of her
arguments about the three-year limit.
1 Unspecified statutory references are to the Code of Civil
Procedure.
2
FACTUAL AND PROCEDURAL BACKGROUND
We summarize only those portions of the arbitration and
superior court proceedings relevant to our resolution of this
appeal.
A. The Arbitration
1. Jones Files an Arbitration Demand Alleging Medical
Malpractice
On November 30, 2023, Jones filed a demand for
arbitration against Kaiser.2 The demand alleged, in relevant
part, as follows: Jones underwent a routine cervical examination
at Kaiser on January 9, 2019, and “[her] tests came back
[n]ormal.” In February 2019, she “began to experience light
streaks of blood when [she] had a bowel movement,” and was
examined by Dr. Benjamin Dacula. At Jones’s request, Dr.
Dacula provided a referral for a colonoscopy. Dr. William Go
performed the colonoscopy on May 21, 2019.
After the colonoscopy, Dr. Go informed Jones that she had
cancer and referred her to Kaiser’s radiation oncology
department. Jones saw Dr. Joan Ryoo on June 5, 2019, and saw
Dr. Seyed Monemian on June 26, 2019. Jones underwent
chemotherapy and radiation treatments which she completed in
September of 2019.
After completing her treatments, Jones “was never advised
that [she] needed to insert a vaginal dilator daily to prevent [her]
2 Jones’s demand named Kaiser Permanente Medical
Groups, but Southern California Permanente Medical Group was
treated as the proper respondent in the arbitration.
3
vagina from complet[e]ly closing nor was [she] ever exam[ined]
for it.” (Capitalization omitted.)
Jones saw Dr. Ryoo on February 3, 2022 for a follow-up
examination. Jones later began experiencing abdominal pain
and, on March 9, 2022, was seen at urgent care, where she
underwent tests and was sent home. She called Dr. Go on
March 11, and was seen by Dr. Dacula on March 18, 2022,
complaining about “excruciating pain.” Dr. Go referred Jones to
a gynecologist. Before she was seen by the gynecologist, Jones
went to urgent care twice, where CT scans were performed and
she was prescribed pain medication. Medical staff attempted to
insert an instrument into Jones’s vagina but were unable to do so
because Jones bled and experienced pain. The CT scans showed
that Jones had a fibroid.
On April 27, 2022, gynecology surgeon Dr. Malaika
Williams Amneus discovered that Jones’s vagina had closed. On
May 9, 2022, Dr. Amneus performed a surgery for the fibroid. At
a follow-up appointment on June 6, 2022, Dr. Amneus informed
Jones that her vagina was closed and she needed to see her
oncologist.
Jones saw Dr. Ryoo on August 4, 2022, and was given a
vaginal dilator and prescribed hydrocortisone cream to use twice
a day. This was the first time Jones had heard of a vaginal
dilator. Jones tried using the dilator for a year but it was
painful. During a medical examination on September 21, 2023,
Jones told the doctor she could no longer continue using the
dilator because “it was painful and not working.” The doctor told
Jones there was no cure and she was sorry.
Jones alleged she had suffered discomfort, depression, and
emotional distress.
4
2. The Arbitrator Concludes Jones’s Claim is Time-
barred and Issues an Award to Kaiser
According to Jones, between January and April 2024 the
parties to the arbitration exchanged discovery.
On May 19, 2024, Kaiser filed a motion in the arbitration
for judgment on the pleadings on the ground that Jones’s demand
for arbitration was time-barred by the one-year statute of
limitations set forth in section 340.5. Section 340.5 provides, in
relevant part: “In an action for injury or death against a health
care provider based upon such person’s alleged professional
negligence, the time for the commencement of action shall be
three years after the date of injury or one year after the plaintiff
discovers, or through the use of reasonable diligence should have
discovered, the injury, whichever occurs first. In no event shall
the time for commencement of legal action exceed three years
unless tolled for any of the following: (1) upon proof of fraud,
(2) intentional concealment, or (3) the presence of a foreign body,
which has no therapeutic or diagnostic purpose or effect, in the
person of the injured person.”
The arbitrator held a telephonic hearing on Kaiser’s motion
on June 11, 2024.
The arbitrator granted Kaiser’s motion in a detailed
written decision dated and delivered to the parties on June 14,
2024. The arbitrator first found that Jones was alleging medical
malpractice with respect to treatment she received between
January 9, 2019 and August 4, 2022, which resulted in “scarring
and strictures in [Jones’s] vaginal canal.” The arbitrator then
concluded that Jones’s claim was time-barred under the one-year
limitations period set forth in section 340.5. Citing Gutierrez v.
Mofid (1985) 39 Cal.3d 892, the arbitrator explained that this
5
one-year period “begins when the plaintiff suspects or should
suspect that their injury was caused by wrongdoing, regardless of
whether they know the precise nature of the wrongdoing.” The
arbitrator found, based on the treatment chronology Jones had
alleged in her arbitration demand, that “[Jones] discovered the
alleged malpractice on any[ ]one or all of four dates in 2022. The
last of the possible discovery dates was August 4, 2022, and thus
[Jones] had one year from that date to file a [c]laim. The best
outcome cutoff date (and liberally construing [Jones’s]
chronology) was in August 2022, which would require [Jones] to
file her claim no later than in August 2023.”
The arbitrator also found that Jones’s claim was time-
barred under the three-year limitations period set forth in section
340.5, stating, “The most liberally construed limit in this case
based upon [Jones’s] arguments would have been when [Jones]
should have been proscribed [sic] the dilator after completing
[radiation therapy] in September 2019. This would make the
three-year cutoff date September 2022.”
The arbitrator acknowledged that the three-year
limitations period was subject to tolling and addressed Jones’s
claim the statute of limitations had been tolled under section
340.5 due to fraud or concealment. The arbitrator rejected
Jones’s tolling claim, concluding that “[Jones] would need to
establish that the physicians knew that vaginal dilation following
[radiation therapy] was effective treatment and that the
physicians intentionally misled or failed to inform [Jones]. Proof
of the efficacy of vaginal dilation following radiotherapy
treatment would be necessary to establish that material
information was concealed from [Jones]. [Jones] has not
introduced any evidence of efficacy of dilation and that
6
[r]espondent physician(s) would or should have been aware of the
treatment in order to establish that there was a willful intent to
conceal the treatment.” The arbitrator noted that Jones had
requested leave to amend and implicitly denied the request.
The arbitrator entered an award in favor of Kaiser based on
her ruling that Jones’s claims were time-barred.
3. Jones Reiterates Her Request for Leave to Amend after
Receiving the Arbitrator’s Decision
The arbitrator delivered her decision to the parties by e-
mail on June 14, 2024. Jones responded to the e-mail requesting
the arbitrator put “[the arbitration] decision . . . on hold” so that
she could allege or submit facts to “prove [she] should be granted
the three[-]year statute [of limitations] instead of the one[-]year
statute [of limitations].” (Capitalization omitted.) On June 17,
2024, the arbitrator responded that her decision was final and
stated, in part, “The outcome of the [m]otion [for judgment on the
pleadings] was based upon [Jones’s] version of the dates and
facts . . . . Those facts . . . established the prima facie evidence for
application of [section 340.5].”
B. Superior Court Proceedings
1. Jones’s Petition to Vacate
On July 10, 2024, Jones filed a petition in superior court
pursuant to section 1286.2 to vacate the arbitration award on the
grounds that the arbitrator refused Jones’s request to amend her
claims and failed to consider facts regarding fraud and
concealment supporting Jones’s claim the statute of limitations
should be tolled. Jones claimed the award should be vacated
because “the arbitrator exceeded his or her authority, and the
award cannot be fairly corrected,” and because “the arbitrator
7
unfairly refused to postpone the hearing or to hear evidence
useful to settle the dispute.”3
Jones attached documents from the arbitration, including
the arbitrator’s ruling on the statute of limitations issue and
Jones’s subsequent e-mail to the arbitrator asking to “put on
hold” that decision for the arbitrator to consider Jones’s evidence
supporting her claim that the three-year statute of limitations
applied instead of the one-year period.
Jones summarized the chronology of her medical care
beginning on April 27, 2022, when she was informed by Dr.
Amneus that her vagina was closed, including Dr. Amneus
referring Jones to an oncologist on June 6, 2022, Dr. Ryoo
“document[ing] . . . [s]ignificant [v]aginal [s]tenosis ([s]carring)”
on August 4, 2022, and Dr. Ryoo informing her on September 21,
2023, that the “scarring . . . was irreversible.” Jones also
asserted that Dr. Ryoo had “documented and concealed pertinent
information when she discovered fibrosis (scarring)” on five dates
beginning on November 16, 2020, and “it should have been
disclosed to [Jones] that scarring was discovered by Dr. Ryoo,
before [Jones] discovered it [on April ]27[, 20]22.” Jones
contended that the three-year statute of limitations “should be
extended . . . to toll the repose period when [she] discovered the
injury [on] April[] 27, 2022.”
Jones filed an amended petition to vacate on September 4,
2024, again alleging the arbitrator had denied Jones’s request to
3 Jones utilized a form petition and made these claims by
checking boxes next to standard language asserting claims for
vacatur of an arbitration award under section 1286.2. The two
claims asserted by Jones corresponded to the grounds for vacatur
set forth in subdivision (a)(4) and (5) of section 1286.2.
8
amend and did not consider the facts Jones had proffered. Jones
continued to claim that the arbitration award should be vacated
because “the arbitrator unfairly refused to postpone the hearing
or to hear evidence useful to settle the dispute,” and also added
the claim that the award should be vacated because it “was
obtained by corruption, fraud, or other unfair means.”4 Jones
stated the petition was being amended to remove any reference to
the arbitration administrator and to “correct[] the names of the
Kaiser entities involved.”
2. Kaiser’s Petition to Confirm
On October 16, 2024, Kaiser filed a petition to confirm the
arbitration award.5
3. Jones’s Opposition to Kaiser’s Petition to Confirm
On October 28, 2024, Jones filed a response to Kaiser’s
petition to confirm. She contended the arbitration award should
be vacated, and not confirmed, because she had sought leave to
amend in the arbitration based on “additional evidence of fraud
and concealment” but the arbitrator nonetheless decided the
arbitration. Jones sought vacatur of the arbitration award under
section 1286.2, subdivisions (a)(3) (for “misconduct of [the]
arbitrator”) and (a)(5) (for the arbitrator’s failure “to postpone the
4 As noted, Jones utilized a form petition and made these
claims by checking boxes on the form. The two claims asserted
by Jones in her amended petition corresponded to the grounds for
vacatur set forth in subdivision (a)(1) and (5) of section 1286.2.
5 Kaiser filed an amended petition to confirm on
October 31, 2024, and on November 19, 2024 filed a further
amended petition, which included as attachments Jones’s
enrollment forms and the applicable arbitration agreements.
9
hearing upon sufficient cause being shown therefor” or “refus[ing]
. . . to hear evidence material to the controversy”).
4. Kaiser’s Opposition to Jones’s Petition to Vacate and
Response to Jones’s Opposition to Kaiser’s Petition to
Confirm
On October 31, 2024, Kaiser filed an opposition to Jones’s
petition and a response to Jones’s opposition to Kaiser’s petition.
In both pleadings, Kaiser argued that the arbitrator correctly
determined that the applicable statute of limitations barred
Jones’s medical malpractice claim and appropriately denied
Jones leave to amend her allegations, and that Jones failed to
establish any of the grounds for vacating an arbitration award
under section 1286.2 she relied upon.
5. Jones’s Reply in Support of Her Petition to Vacate
On November 5, 2024, Jones responded to Kaiser’s
opposition to her petition. She contended the arbitrator’s “refusal
to allow [Jones] to amend [her] complaint compromised the
fairness of the arbitration process.”
6. Jones Provides Additional Argument and Documents
In a March 7, 2025 filing, Jones contended that “[d]uring
[d]iscovery [in the arbitration process she] discovered that [her]
cancer-treating doctor was fully aware and documented that [she]
was scar[r]ed for life.” (Boldface omitted.) She further “argue[d]
that the statute [of limitations] should start when [she]
discovered in March 2024 during discovery, the doctor’s
intentional concealment and awareness of the scarring and
medical negligence” and that “the doctor’s failure to inform [her]
about the necessary aftercare treatments [was] a continuing
violation, which tolls the statute of limitations until the violation
10
ceases. The doctor’s omission prevented [Jones] from discovering
the full extent of [her] injury and taking timely legal action.”
Jones attached medical records which she contended supported
her argument.
7. The Superior Court’s Ruling
At the beginning of the August 6, 2025 hearing on the cross
petitions, the superior court indicated it had issued a tentative
ruling. Jones stated she had not received the tentative ruling, so
the court paused the hearing and arranged for the tentative
ruling to be printed and provided to Jones. The tentative ruling
was to grant Kaiser’s petition to confirm and deny Jones’s
petition to vacate. When the hearing resumed, Jones argued the
court should vacate the arbitration award “because [Jones]
discovered in March of 2024 that [her] physician knew of this, an
irreversible injury that took place long before 2023, and that they
were aware in 2020 and concealed it.” Jones contended that the
arbitrator’s refusal to allow her to amend based on this “new
evidence” “violat[ed] [section] 1286.2[, subdivision ](a)(5).”
Jones confirmed that “[she] discovered [her] injury in April
of 2022 . . . [and] filed a formal complaint in November of 2023.”
At the conclusion of the hearing the court took the matter
under submission, and later that day issued an order denying the
petition to vacate and granting the petition to confirm the award.
The court concluded that, based on the limited scope of judicial
review of an arbitrator’s decision, “it [was] not authorized to
address the merits of the [a]rbitrator’s granting [j]udgment on
the [p]leadings for [Kaiser], which was based on the [s]tatute of
[l]imitations applicable to healthcare providers, commencing
upon accrual of [Jones’s] malpractice claim, and calculated based
on [Jones’s] [d]emand for [a]rbitration on November 30, 2023.”
11
The court further stated that resolution of a motion for judgment
on the pleadings was properly based on the allegations made by
the claimant, in this case Jones’s allegations in her demand for
arbitration.
The court entered judgment on August 22, 2025, from
which Jones timely appealed.
DISCUSSION
A. Legal Principles and Standard of Review
“California law favors alternative dispute resolution as a
viable means of resolving legal conflicts.” (Richey v. AutoNation,
Inc. (2015) 60 Cal.4th 909, 916.) “[I]t is the general rule that
parties to a private arbitration impliedly agree that the
arbitrator’s decision will be both binding and final.” (Moncharsh
v. Heily & Blase (1992) 3 Cal.4th 1, 9, fn. omitted.) “Because the
decision to arbitrate grievances evinces the parties’ intent to
bypass the judicial system and thus avoid potential delays at the
trial and appellate levels, arbitral finality is a core component of
the parties’ agreement to submit to arbitration.” (Id. at p. 10.)
“[A]n arbitrator’s decision is not generally reviewable for
errors of fact or law, whether or not such error appears on the
face of the award and causes substantial injustice to the parties.”
(Moncharsh v. Heily & Blase, supra, 3 Cal.4th at p. 6.) Instead,
“judicial review of private, binding arbitration awards is
generally limited to the statutory grounds for vacating (§ 1286.2)
or correcting (§ 1286.6) an award.” (Moshonov v. Walsh (2000) 22
Cal.4th 771, 775, citing Moncharsh, at pp. 8-28.) Thus, there are
three types of petitions available—to vacate, correct, or confirm
an award. (§ 1285.) As relevant here, when a petition is filed,
“the court shall confirm the award as made . . . unless . . . it
corrects the award and confirms it as corrected, vacates the
12
award or dismisses the proceeding.” (§ 1286.) “If an award is
confirmed, judgment shall be entered in conformity
therewith. . . .” (§ 1287.4.)
Jones sought to vacate the arbitration award under section
1286.2. “To determine whether an arbitration award should be
vacated under . . . section 1286.2, we review the trial court’s
decision de novo.” (Bacall v. Shumway (2021) 61 Cal.App.5th
950, 957.) We likewise “review de novo [a] trial court’s order
confirming [an] arbitration award.” (Greenspan v. LADT, LLC
(2010) 185 Cal.App.4th 1413, 1435.) “ ‘Issues of statutory
interpretation and the application of that interpretation to a set
of undisputed facts are questions of law subject to independent
review . . . .’ ” (Soni v. SimpleLayers, Inc. (2019) 42 Cal.App.5th
1071, 1087.) “We apply the substantial evidence test to the trial
court’s determination of disputed factual issues.” (Ibid.)
B. Arbitration Terms
As relevant here, the parties’ arbitration agreement
required “[b]inding [a]rbitration” for, among others, “any claim
for medical or hospital malpractice (a claim that medical services
or items were unnecessary or unauthorized or were improperly,
negligently, or incompetently rendered).” The agreement
provided, “A claim shall be waived and forever barred if [among
other reasons] on the date the [d]emand for [a]rbitration of the
claim is served, the claim, if asserted in a civil action, would be
barred as to the [r]espondent served by the applicable statute of
limitations.” It also provided, as relevant here, “Arbitrations
shall be governed by [the parties’ arbitration agreement],
[s]ection 2 of the Federal Arbitration Act[ (FAA)], and the
California Code of Civil Procedure provisions relating to
13
arbitration that are in effect at the time the statute is
applied . . . .”
C. Analysis
Jones claims the arbitrator denied her a fair hearing by
refusing to consider evidence which Jones asserts showed that
Kaiser physicians concealed their knowledge of the injury from
her, and by denying Jones the opportunity to amend her
allegations. Jones further claims that because of the concealment
she was entitled to tolling of the three-year limitations period
under section 340.5, which undermined the arbitrator’s
conclusion that Jones’s claims were time barred by section 340.5.
Based on these claims, Jones contends the superior court erred in
failing to vacate the arbitration award under section 1286.2,
subdivision (a)(1) and (5), as well as under the FAA.
Jones also contends the superior court erred in issuing its
ruling denying her motion to vacate (and granting Kaiser’s
petition to confirm) before the hearing on the motion.6
6 At oral argument, Jones argued for the first time that the
arbitration provision in her agreement with Kaiser was
unenforceable on statutory grounds. Jones has forfeited this
claim by failing to raise it in the trial court or in her opening brief
on appeal. (In re I.C. (2018) 4 Cal.5th 869, 888, fn. 5 [party
forfeited argument raised for the first time at oral argument “by
failing to raise it in a timely manner”]; Keener v. Jeld-Wen, Inc.
(2009) 46 Cal.4th 247, 264 [“ ‘ “ ‘ “No procedural principle is more
familiar to this Court than that a constitutional right,” or a right
of any other sort, “may be forfeited in criminal as well as civil
cases by the failure to make timely assertion of the right before a
tribunal having jurisdiction to determine it” ’ ” ’ ”].) Although a
party may challenge a court’s fundamental jurisdiction to
14
1. Section 1286.2, Subdivision (a)(5)
The grounds for vacatur under section 1286.2, subdivision
(a)(5) most closely mirror Jones’s claims, and thus we address
this provision first. As relevant here, subdivision (a)(5) requires
vacatur where “[t]he rights of the party were substantially
prejudiced . . . by the refusal of the arbitrator[] to hear evidence
material to the controversy.” (Ibid.)7
This provision “was designed as a ‘safety valve in private
arbitration that permits a court to intercede when an arbitrator
has prevented a party from fairly presenting its case.’ [Citation.]
It comes into play, for example, when an arbitrator, without
justification, permits only one side to present evidence on a
disputed material issue.” (Heimlich v. Shivji (2019) 7 Cal.5th
350, 368.) “Where, as here, a party complains of excluded
material evidence, the reviewing court should generally focus
adjudicate a matter at any point (Kabran v. Sharp Memorial
Hospital (2017) 2 Cal.5th 330, 339), Jones’s claim regarding the
enforceability of the parties’ arbitration agreement does not
implicate the trial court’s fundamental jurisdiction to confirm an
award in an arbitration that she initiated.
7 Jones also asserts this theory under section 10(a)(3) of the
FAA, which provides for vacatur of an arbitration award, in
relevant part, “where the arbitrators were guilty of misconduct
. . . in refusing to hear evidence pertinent and material to the
controversy.” (9 U.S.C. § 10(a)(3).) Jones has forfeited any claim
under this statute by failing to assert it in her petition to vacate
or otherwise raise it before the superior court. (Keener v. Jeld-
Wen, Inc., supra, 46 Cal.4th at p. 264.) Even if Jones had not
forfeited her claim under section 10(a)(3) of the FAA, she has not
shown how the claim is any different from her claim under
section 1286.2, subdivision (a)(5).
15
first on prejudice, not materiality. To find substantial prejudice
the court must accept, for purposes of analysis, the arbitrator’s
legal theory and conclude that the arbitrator might well have
made a different award had the evidence been allowed.” (Hall v.
Superior Court (1993) 18 Cal.App.4th 427, 439.)
Jones’s claim under section 1286.2, subdivision (a)(5) fails
because it is clear, based on the arbitrator’s decision, that even if
the arbitrator had considered Jones’s evidence of alleged
concealment, the arbitrator would have reached the same
conclusion that Jones’s malpractice claims were time-barred
under section 340.5. The arbitrator concluded that Jones’s claims
were time-barred under both the one-year and three-year
limitations periods set forth in section 340.5. Under the statute,
a claim is time-barred if it was not asserted within either the one-
year period or the three-year period. Jones’s concealment claim
only applied to the three-year limitations period. Thus, even if
Jones had been able to show the three-year period should have
been tolled, under the arbitrator’s analysis the one-year
limitations period still barred Jones’s malpractice claims.
Jones’s theory was that Kaiser physicians concealed their
knowledge of her injury before Jones discovered it. But once
Jones discovered her injury—which she conceded below and
repeats in her appellate briefing occurred in April of 2022—the
one-year period began to run and Jones was required to assert
her malpractice claim by April of 2023. Jones argues that under
Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103 and Fox v. Ethicon
Endo-Surgery, Inc. (2005) 35 Cal.4th 797, “the statute of
limitations is tolled when a defendant’s conduct conceals the
cause of injury.” This argument fails because, under section
340.5, the tolling provisions only apply to the three-year period
16
and not to the one-year period. (See § 340.5.) The argument also
misunderstands the applicable rule, known as the “ ‘discovery
rule.’ ” (Fox, at p. 807.) Under this rule “plaintiffs are charged
with presumptive knowledge of an injury if they have
‘ “ ‘information of circumstances to put [them] on inquiry’ ” ’ or if
they have ‘ “ ‘the opportunity to obtain knowledge from sources
open to [their] investigation.’ ” ’ [Citation.] In other words,
plaintiffs are required to conduct a reasonable investigation after
becoming aware of an injury, and are charged with knowledge of
the information that would have been revealed by such an
investigation.” (Id. at pp. 807-808, fn. omitted.) Here, based on
Jones’s allegations, not only was she aware of her injury by April
of 2022, but she was aware of the alleged cause of the injury by
August of 2022, more than a year before she asserted her medical
malpractice claim.
The facts here are analogous to those in Hall, where “[t]he
arbitrator received an informal offer of proof, determined that
even if presented the evidence would not persuade him against
the [parties who ultimately prevailed in the arbitration], and
denied [the losing party] the opportunity to replace his offer of
proof with actual testimony.” (Hall v. Superior Court, supra, 18
Cal.App.4th at p. 439.) The court concluded that, under these
circumstances, section 1286.2, subdivision (a)(5) did not apply
because the “[t]he arbitrator did not prevent [the losing party]
from fairly presenting his defense. Instead, the arbitrator
concluded that [the losing party’s] defense, even with the
proffered evidence, lacked merit.” (Hall, at p. 439.)8
8 Jones requests judicial notice of documents showing she
submitted a complaint to the California Medical Board about the
17
2. Section 1286.2, Subdivision (a)(1)
Jones alleges that Kaiser “fail[ed] to timely disclose critical
medical records—evidence that was essential to establishing
fraudulent concealment and the tolling of the statute of
limitations under [section] 340.5.” Jones contends Kaiser’s
conduct requires vacatur of the arbitration award under section
1286.2, subdivision (a)(1), which provides for vacatur of an award
that “was procured by corruption, fraud or other undue means.”
Jones has forfeited this claim because she has raised it for
the first time in her appeal. (Keener v. Jeld-Wen, Inc., supra, 46
Cal.4th at p. 264.) Even if Jones had not forfeited this claim, it
fails because the allegedly withheld records in no way relate to
when Jones herself discovered her injury and the one-year
statute of limitations began to run.
medical treatment at issue in her claim against Kaiser. We deny
that request. “Reviewing courts generally do not take judicial
notice of evidence not presented to the trial court” absent
“exceptional circumstances.” (Vons Companies, Inc. v. Seabest
Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) No such
exceptional circumstances are present here. In addition, judicial
notice is inappropriate because the documents are “not relevant
to dispositive issues on appeal.” (Arce v. Kaiser Foundation
Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.). Jones
contends that the fact the California Medical Board opened an
investigation shows the records which she sought to submit to the
arbitrator were “material.” They might be material to the
California Medical Board’s inquiry about the standard of care
provided, but they have nothing to do with whether the one-year
statute of limitations bars Jones’s claim.
18
3. Jones’s Claim Under Section 10(a)(2) of the FAA and
Section 1286.2, Subdivision (a)(3)
Jones contends the superior court erred in failing to vacate
the award under section 10(a)(2) of the FAA (“evident partiality
. . . in the arbitrator[]”) and section 1286.2, subdivision (a)(3)
(“misconduct of [the] arbitrator”) on the ground the arbitrator
favored Kaiser by denying amendment and refusing to consider
new evidence. Jones has forfeited this claim because she did not
raise a claim under the FAA or section 1286.2, subdivision (a)(3)
in her petition to vacate or her amended petition to vacate.
(Keener v. Jeld-Wen, Inc., supra, 46 Cal.4th at p. 264.) Even if
Jones had raised this argument before the superior court, it is not
persuasive. Jones’s claims regarding partiality and misconduct
relate to her arguments regarding the tolling of the three-year
prong of section 340.5. They cast no doubt on the applicability of
the one-year statute of limitations, which as already noted
Jones’s own appellate briefing makes clear applies here to bar
her claims.
Jones also failed to raise below, and has therefore forfeited,
her claim that the arbitration should be vacated under
Armendariz v. Foundation Health Psychcare Services, Inc. (2000)
24 Cal.4th 83, for failing to “meet ‘minimum standards of
fairness.’ ” (Boldface omitted.) Even if Jones had not forfeited
this claim, it fails because the court in Armendariz addressed
issues “related to the validity” of an agreement to arbitrate, not
the grounds for vacatur of an arbitration award. (Armendariz, at
p. 90.) The Armendariz court did not establish new grounds for
vacating an arbitration award in addition to those set forth in
section 1286.2.
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4. Jones’s Claim that the Superior Court Denied Her a
Hearing
Jones contends the superior court acted improperly by
issuing its ruling before holding a substantive hearing on the
parties’ petitions. This contention appears to be based on a
procedural misunderstanding. Prior to the hearing the court
issued a tentative ruling based on the parties’ written
submissions, not a final ruling. Jones received a printed copy of
the tentative ruling at the beginning of the hearing and the court
allowed her time to review it before presenting her oral
argument. After both parties presented argument, the court took
the matter under submission and issued a final ruling later that
day. The court informed Jones at the hearing that the document
it provided to Jones before the hearing began was “a tentative
ruling to help [the parties] understand the law that the court
[saw] right [then],” and Jones could “tell [the court] something,
perhaps, that [she thought] that [the court] missed or [was]
misconstruing or [the court] should consider something different.”
Jones then presented her arguments to the court.
There is nothing wrong with the practice of providing a
tentative ruling, which courts routinely do to give the parties
information on how the court views the issues based on the
briefing. This allows the parties to focus their arguments on
what they believe is most important and what they believe the
court has incorrectly considered. Nothing suggests that the
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superior court did not consider Jones’s arguments made during
the hearing before issuing its final ruling.9
DISPOSITION
The judgment is affirmed. Respondents are awarded their
costs on appeal.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
BENDIX, Acting P. J.
M. KIM, J.
9 Jones asserted at oral argument that the trial court had
signed its tentative ruling before providing it to her at the
beginning of the hearing. This claim is not supported by the
record. The transcript of the hearing shows that the court signed
an order to appoint a court reporter to transcribe the hearing;
this order was separate from the court’s ruling on the parties’
petitions.
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