Filed 9/29/26 Kiker v. Pilch CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 EIGHT
DALE KIKER, B348548
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. 24STCP03104
v.
BORIS PILCH et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Holly J. Fujie, Judge. Affirmed.
Katten Muchin Rosenman, Christopher D. Beatty for
Defendants and Appellants.
Rutan & Tucker, Bradley A. Chapin and Briana F.
Richmond for Plaintiff and Respondent.
_________________________
Two doctors feuded, settled, then feuded about their
settlement. An arbitrator rejected one of the doctors’ claims that
the other doctor had breached their settlement agreement. The
trial court confirmed the award. It concluded the arbitrator’s
interpretation of the doctors’ settlement agreement was rational.
It also concluded the arbitrator’s findings — that the doctor
asserting breach had waived those breaches and failed to prove
damages from them — were findings within the scope of the
arbitrated controversy and were beyond court review. The
arbitrator’s waiver and no damages findings are indeed beyond
court review, and they independently support the trial court’s
confirmation of the award. We therefore affirm.
I.
We take the facts “from the arbitrator’s award and
memoranda of decision.” (Advanced Micro Devices, Inc. v. Intel
Corp. (1994) 9 Cal.4th 362, 367, fn. 1 (AMD); accord, Valencia v.
Mendoza (2024) 103 Cal.App.5th 427, 433, fn. 2 (Valencia).)
Boris Pilch and Dale Kiker are both anesthesiologists.
After working together for many years and setting up several
business entities, they parted ways in 2019 when Kiker struck
out and formed his own competing surgery center and billing
company. Pilch confronted Kiker about his competing entities
and sought relief in arbitration. The arbitration ended when
Pilch and Kiker signed a settlement agreement.
The settlement agreement, with a closing date of October
31, 2019, was, in large part, a purchase agreement. Kiker agreed
to buy out Pilch’s interests in their shared business entities.
Kiker would also make monthly payments to Pilch tied to
revenue from pre-buyout patient services. From those payments,
Kiker could deduct expenses with the approval of Marc Wolfsohn,
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a doctor who remained associated with Kiker’s and Pilch’s
business entities. Kiker, for transparency, had to provide Pilch
with access to QuickBooks accounting information until payment
of all pre-closing receivables.
After settlement, Kiker had his office manager, Ann Cox,
handle compliance. She prepared the figures, met with Wolfsohn
and Pilch, and sent Pilch the checks. She made three timely
payments for Kiker between November 2019 and January 2020.
She then made batch payments in August 2020 (for February
through July), November 2020 (for August through October), and
January 2021 (for the previous November and December). Cox
gave several reasons for these delayed batch payments. First, “it
was impractical to make monthly payments . . . because the
income” subject to distribution “had decreased significantly.”
Second, there were expenses related to a lawsuit that had been
pending at the time of settlement, and the settlement agreement
permitted deduction of those expenses. And third, Cox attributed
some delay to issues in her personal life. Pilch cashed each check
promptly and without objection.
After January 2021, no further payments occurred until
January 2023. Cox could not make payments for Kiker because a
billing company in Pilch’s control post settlement was not
providing necessary data.
“Pilch never complained about the timing or manner of the
payments.” That is, until 2023, when Pilch refused to cash the
check sent that year and initiated arbitration for asserted
breaches of contract. The demand, in which Pilch Investments
and Management, LLC joined as a claimant, sought relief from
Kiker personally and as trustee of the Dale G. Kiker Revocable
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Intervivos Trust, as well as from Central Pacific Pain
Management, a Medical Group, Inc.
Two months before the arbitration hearing, Pilch, in March
2024, made the appropriate billing records available. Cox
reviewed them and issued two final payments totaling just over
$4,000.
The arbitrator found for Kiker and the arbitration
respondents. The arbitrator found Cox’s testimony extremely
credible and Pilch’s testimony not credible. The arbitrator found
Pilch’s claimed breaches were nonexistent or technical in nature
and chose to read the settlement agreement through the lens of
section 15 of the agreement, which provided that whenever
possible the agreement be given a reasonable, practicable, and
workable interpretation. Thus, it found, for instance, no
actionable breach based on the lack of monthly payments, for
which Pilch sought no damages, and no actionable breach based
on Pilch’s lack of access to QuickBooks, as Pilch had access
through an accountant and had not offered credible evidence that
any receivables were left to collect.
The arbitrator went on to explain that:
“More importantly, the missing component from all of these
purported breaches is any actual harm to Claimants. Claimants
cannot demonstrate any connection between the alleged breaches
and any actual, tangible harm suffered by Pilch.
“For instance, Claimants cannot identify any amount they
are owed as a result of payments being made every several
months instead of monthly. Presumably, if Pilch had actually
suffered harm, he would have complained much earlier. Instead,
Pilch cashed the checks he received and, as Cox, Kiker, and
Wolfsohn all testified, he never complained about unpaid monies,
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improper deductions, the timing of the payments or anything of
the sort.
“The Arbitrator also agrees that Pilch waived the right to
challenge any of [ ] Kiker’s alleged breaches by not raising any of
these issues prior to initiating this arbitration.
“Lastly, the Arbitrator agrees that Pilch failed his burden
of proof regarding damages. Pilch made no effort to quantify or
calculate his damages. He did not present any expert witnesses
or expert reports to present a calculation of his alleged damages.
Instead, he simply testified that he left it to his lawyers.”
Following the arbitration, Kiker and the respondent
petitioned the superior court to confirm the award while Pilch
and the claimants requested its vacatur.
The superior court confirmed the award and denied
vacatur.
The court concluded Pilch and the claimants had “not
shown that the Arbitrator exceeded his authority in interpreting
the Settlement Agreement. The Settlement Agreement
specifically states that it ‘shall whenever possible be given a
reasonable, practical and workable interpretation so as to effect
the general intentions of the Parties hereto.’ . . . The Arbitrator
concluded that Respondent did not suffer damages from the
failure to make monthly payments, the deducted expenses were
in accordance with historical practices, Respondent had proper
access to Quickbooks, and Respondent waived his claims by
failing to bring them earlier. . . . Thus, the decision of the
Arbitrator was within the scope of the controversy submitted to
him and rationally based upon the terms of the Settlement
Agreement.”
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The court also concluded “the Arbitrator’s comments on the
complexity of the matter and finding that Pilch was not a credible
witness do not create an impression of personal bias against
Respondents.”
The trial court entered judgment on May 28, 2025 and
Kiker served notice of entry that same date. On July 7, 2025, the
trial court entered an amended judgment that filled in stipulated
amounts for blanks left for awards of attorney fees and costs.
Pilch, on July 24, 2025, timely appealed from the judgment.
Whether Pilch Investments and Management, LLC, also
appealed is unclear, and is ultimately unimportant in light of our
affirmance.
II.
Pilch seeks reversal of the trial court’s rulings and vacatur
of the arbitration award. He asserts the arbitrator improperly
remade the parties’ settlement agreement, interpreting it
irrationally and exceeding his authority. Pilch asserts the
arbitrator strayed so far from the contract, in fact, that the award
violates important public policies surrounding contracting that
courts should protect. And finally, Pilch asserts the arbitrator’s
award arose from bias. None of these contentions warrants
vacatur.
A.
“ ‘Typically, those who enter into arbitration agreements
expect that their dispute will be resolved without necessity for
any contact with the courts.’ ” (Heimlich v. Shivji (2019)
7 Cal.5th 350, 366.) “The scope of judicial review of arbitration
awards is extremely narrow.” (Ahdout v. Hekmatjah (2013)
213 Cal.App.4th 21, 33.) Code of Civil Procedure section 1286.2
circumscribes when vacatur of arbitration awards is available.
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(Moshonov v. Walsh (2000) 22 Cal.4th 771, 775 (Moshonov).)
Vacatur is justified when, as relevant here, “arbitrators exceed[]
their powers and the award cannot be corrected without affecting
the merits of the decision upon the controversy submitted”
(§ 1286.2, subd. (a)(4)) and when “misconduct of a neutral
arbitrator,” which can include actions that create the impression
of bias, substantially prejudices a party’s rights (id., subd. (a)(3);
FCM Investments, LLC v. Grove Pham, LLC (2023)
96 Cal.App.5th 545, 553 (FCM)). “[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 (1992)
3 Cal.4th 1, 6 (Moncharsh).)
Our review is de novo, but “to the extent the trial court’s
decision to grant a petition to confirm or deny an arbitration
award rests on its determination of disputed factual issues, we
review the court’s orders for substantial evidence.” (Valencia,
supra, 103 Cal.App.5th at p. 442.) An “ ‘appellant bears the
burden of establishing [its] claim of invalidity.’ ” (Ibid.) More
than that, an appellant must show prejudice from an arbitrator’s
asserted errors or bias. (Richey v. AutoNation, Inc. (2015)
60 Cal.4th 909, 916, 920 (Richey); id. at p. 920 [“Even if the
arbitrator erred, and even if such an error could serve as a basis
for vacating an arbitration award [under subdivision (a)(4)],
plaintiff has not shown that the error was prejudicial”]; Royal
Alliance Associates, Inc. v. Liebhaber (2016) 2 Cal.App.5th 1092,
1106; § 1286.2, subd. (a)(3) [requiring prejudice], id., subd. (a)(4)
[only permitting vacatur for exceeding power if “the award cannot
be corrected without affecting [its] merits”]; Cal. Const., art. VI,
§ 13.)
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B.
The arbitrator’s interpretation of the parties’ contract,
whether or not irrational or violative of public policies regarding
contract, does not warrant vacatur under section 1286.2,
subdivision (a)(4)’s prohibition of acts in excess of an arbitrator’s
power.
Pilch, attacking the award as beyond the arbitrator’s
power, argues a decision exceeds an arbitrator’s powers “if it is so
utterly irrational that it amounts to an arbitrary remaking of the
contract between the parties.” (Southern Cal. Rapid Transit Dist.
v. United Transportation Union (1992) 5 Cal.App.4th 416, 423.)
Kiker, defending the award, accepts review for arbitrariness, but
cautions this exception to an award’s finality is so “narrow” and
“so strict that it should discourage all but the most serious claims
of abuse.” (Pacific Gas & Electric Co. v. Superior Court (1993)
15 Cal.App.4th 576, 594.) Any interpretation “within the
ordinary bounds of semantic permissibility” (id. at p. 594) or
“arguably based on the contract” (AMD, supra, 9 Cal.4th at
p. 381) should survive scrutiny. Our Supreme Court has
cautioned arbitrators do not exceed their powers “merely by
rendering an erroneous decision on a legal or factual issue, so
long as the issue was within the scope of the controversy
submitted to the arbitrators.” (Moshonov, supra, 22 Cal.4th at
p. 775.) It has expressly declined to address “whether an
arbitrator’s interpretation of a contract is subject to review for
‘irrationality’ or ‘arbitrariness.’ ” (AMD, at p. 377, fn. 10.)
We need not delve into the arbitrator’s interpretations of
the settlement agreement or address, more generally, what
threshold permits a court to reject an arbitrator’s interpretations.
Nor, moreover, need we inquire whether, as Pilch alleges, the
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arbitrator’s interpretations violated important public policies of
contract law. (Cf. Moncharsh, supra, 3 Cal.4th at p. 32 [“Without
an explicit legislative expression of public policy, however, courts
should be reluctant to invalidate an arbitrator’s award on this
ground”].) This is so because any error in contract interpretation
would be harmless given the remainder of the award. (Richey,
supra, 60 Cal.4th at pp. 916, 920.) The arbitrator not only found
the absence of the breaches Pilch asserted but also found Pilch
waived those breaches and had not shown damages from them.
Put another way, the arbitrator’s award stands on independent
grounds that do not implicate the supposed interpretive errors
Pilch raises.
As to the arbitrator’s waiver finding, Pilch argues it
“suffers from two fatal defects: it misstates California’s waiver
standard, and it fabricates a contractual obligation that does not
exist.” To start, the arbitrator did not fabricate a contractual
obligation; he found waiver of contractual breaches. Waiver is
the “ ‘intentional relinquishment or abandonment of a known
right’ ” (United States v. Olano (1993) 507 U.S. 725, 733) and may
be implied from conduct (Barsamyan v. Appellate Division of
Superior Court (2008) 44 Cal.4th 960, 969; accord, Wellness Int’l
Network, Ltd. v. Sharif (2015) 575 U.S. 665, 684 [“ ‘actions rather
than words’ ”]). To the extent Pilch contends the arbitrator made
an error of law or fact regarding waiver, we do not review
arbitration awards for errors or evidentiary sufficiency.
(Moncharsh, supra, 3 Cal.4th at p. 6; Brawerman v. Loeb & Loeb
LLP (2022) 81 Cal.App.5th 1106, 1131 [“[C]ourts cannot review
the merits of the controversy, the validity of the arbitrator’s
reasoning, or the sufficiency of the evidence supporting an
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arbitrator’s award”]; Bacall v. Shumway (2021) 61 Cal.App.5th
950, 961 [same].)
Waiver aside, the arbitrator found no damages. “A breach
of contract is not actionable without damage.” (Bramalea
California, Inc. v. Reliable Interiors, Inc. (2004) 119 Cal.App.4th
468, 473.) On appeal, Pilch contends he could have obtained
nominal damages, but Pilch points to no evidence that he
requested nominal damages before the arbitrator. The arbitrator
never considered the issue, and that theory of relief is forfeited.
(Moncharsh, supra, 3 Cal.4th at p. 31 [“Failure to raise [a] claim
before the arbitrator, however, waives the claim for any future
judicial review”]; Tribeca Companies, LLC v. First American Title
Ins. Co. (2015) 239 Cal.App.4th 1088, 1103, fn. 12 [“Tribeca has
made no argument that it might have been entitled to nominal
damages and costs, and therefore has forfeited any such
contention”].)
C.
Finally, vacatur is not required because of any appearance
of bias.
The test for arbitral bias is “whether a hypothetical
reasonable person (i.e., a disinterested, well-informed, thoughtful
member of the public) would form an impression of possible bias
on the part of the arbitrator.” (FCM, supra, 96 Cal.App.5th at
p. 555, italics omitted.) “ ‘ “An impression of possible bias in the
arbitration context means that one could reasonably form a belief
that an arbitrator was biased for or against a party for a
particular reason.” ’ [Citation.] The test is objective and fact-
specific; there is no bright-line demarcation for the impression of
bias, and each case must be considered in light of the particular
facts involved.” (Ibid.)
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Pilch offers this evidence of asserted bias:
First, the arbitrator, in his ruling, stated he had “informed
counsel that their presentation of the case was very confusing
and hard to follow” prompting solicitation of closing briefs instead
of closing oral arguments. While those briefs were somewhat
helpful, the arbitrator “still had an extremely difficult time
putting together the pieces of this puzzle.” Thus, the arbitrator
engaged in an “excruciatingly painful review of the witness
testimony, documentary evidence,” and closing briefs.
Second, during Pilch’s direct examination, the arbitrator
stated “I mean, this is incredibly confusing. I am having a hard
time trying to put it together . . . And let me just state, I got to be
honest with you, I am struggling how I am going to resolve this
case because I am not following any of this.”
Third, Pilch points to interjections during his testimony. In
one instance, the arbitrator cut Pilch off mid-sentence. He did so,
however, to enforce a ruling on an objection that had been
interposed and to have counsel move on to another question. In
other instances, the arbitrator asked Pilch’s lawyer to “ask
another question,” asked Pilch to “listen closely to what he is
asking you and only answer the question,” and asked Pilch to
“[not] elaborate.”
Fourth, the arbitrator determined Pilch was not a credible
witness.
Fifth, the arbitrator adopted findings prepared by Kiker.
Pilch cites two cases in support of vacatur based on bias,
FCM and Grabowski v. Kaiser Foundation Health Plan, Inc.
(2021) 64 Cal.App.5th 67. Neither is apposite. In FCM, the
appellate court found bias when an arbitrator explicitly based a
credibility determination on a party’s use of a language
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interpreter. (FCM, supra, 96 Cal.App.5th at p. 549.) In
Grabowski, the arbitrator engaged in unethical, undisclosed ex
parte communications with one party’s lawyer where he derided
the performance of the other party, who was self-represented.
(Grabowski, at pp. 78–79.) “The arbitrator plainly felt a
connection to . . . counsel, which made him comfortable enough to
violate ethical rules and comment on [counsel’s] opponent.” (Id.
at p. 79.) An audio recording of the encounter strikingly revealed
the arbitrator’s tone and attitude. It revealed commiseration
with counsel, discussions about the case’s merits, and a shared
“hearty laugh.” (Id. at pp. 78–79.)
The arbitrator’s remarks here, made in the course of the
proceedings and made openly to both counsel, do not remotely
betray the appearance of bias.
DISPOSITION
We affirm the judgment and award costs to respondent.
SCHERB, J.
We concur:
STRATTON, P. J.
WILEY, J.
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