Nolder v. The Permanente Medical Group

Filed 9/28/07 Nolder v. The Permanente Medical Group CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Alexa Nolder, the successor-in-interest to deceased plaintiff Leisa Lewis, challenges the superior courts denial of Lewiss petition to vacate an arbitration award in favor of defendants.^[1] Lewis claims that the arbitration award should have been vacated because the neutral arbitrator submitted an inaccurate disclosure and failed to disclose that his son had previously been employed as an attorney at the law firm that was representing defendants in the arbitration. We conclude that the neutral arbitrator was not required to disclose this information and that this information and the neutral arbitrators inaccurate disclosure (that no member of his family had ever been associated with an attorney for a party) did not create a basis for vacating the arbitration award. Hence, we affirm the superior courts judgment confirming the arbitration award.

I. Background

Lewis and defendants were parties to an agreement which required the arbitration of disputes between them. The arbitration agreement provided that neutral arbitrators would comply with the Ethics Standards for Neutral Arbitrators in Contractual Arbitration, Division VI of the Appendix to the California Rules of Court.

Lewis commenced arbitration proceedings on her medical malpractice claims against defendants. Defendants were represented by Robert Luft, an attorney at the San Jose office of the law firm Ropers, Majeski, Kohn & Bentley (Ropers). Lewis was provided with a list of 14 prospective neutral arbitrators. She and defendants were each allowed to strike four of the names on the list and were then required to rank the remaining names. Retired Judge William Giffen was one of the prospective neutral arbitrators on the list. Lewis did not strike Judge Giffen and ranked him as an acceptable neutral arbitrator.

In December 2002, Judge Giffen was selected as the neutral arbitrator. He subsequently provided a disclosure statement to the parties [p]ursuant to the California Code of Civil Procedure 1281.9. This disclosure statement contained the following statements: (1) I am not nor are any members of my family related to the parties of this arbitration, nor are we or ever have been a party or have had a significant personal relationship with any party or lawyer for any party[;] (2) I have not nor have any members of my family had a professional relationship with a party or lawyer for a party[;] and (3) There is nothing which would interfere with my ability to be impartial to this arbitration.

The arbitration hearing was held in October 2004 at Roperss San Jose office. Judge Giffen and defendants party arbitrator found in favor of defendant, and Lewiss party arbitrator dissented.

In February 2005, after the issuance of the arbitration award, Lewiss attorney learned that Judge Giffens son had previously been employed by Ropers. Jon Giffen had been employed as an associate attorney at Roperss San Francisco office from October 1993 to January 1996.

Lewis filed a petition to vacate the arbitration award on the ground that Judge Giffens affirmatively misl[eading] disclosure and his failure to disclose that his son had previously been employed by defendants attorneys had deprived her of the opportunity to disqualify Judge Giffen from serving as the neutral arbitrator.

Defendants opposed Lewiss petition, and they submitted Judge Giffens declaration in support of their opposition. Judge Giffen declared that his disclosure was incorrect in stating that no member of his family had had a professional relationship with any lawyer for a party in the arbitration. His son, Jon Giffen, had once worked for Ropers. Judge Giffen stated that he had genuinely forgotten about his sons former employment because it had occurred so long ago. He asserted that his son has not maintained any sort of relationship with the Ropers firm.

The superior court denied Lewiss petition to vacate the arbitration decision. It noted that [n]either California Code of Civil Procedure Section 1281.9 nor the Ethics Standards for Neutral Arbitrators required Judge Giffen to disclose his sons relationship with Ropers. The court considered whether a person aware of the facts might reasonably entertain a doubt that the [arbitrator] would be able to be impartial and concluded that a reasonable person would not entertain a doubt about impartiality.

Defendants filed a petition to confirm the arbitration award, and the superior court issued an order and thereafter a judgment confirming the arbitration award. Lewis filed a timely notice of appeal from the judgment.

II. Analysis

The exclusive grounds for vacating [a non-judicial] arbitration award are those listed in section 1286.2. (Luster v. Collins (1993) 15 Cal.App.4th 1338, 1345.) The court shall vacate the [arbitration] award if the court determines any of the following: [] (1) The award was procured by corruption, fraud or other undue means. [] (2) There was corruption in any of the arbitrators. [] (3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator. []  . . . (6) An arbitrator making the award either: (A) failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware; or (B) was subject to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely demand to disqualify himself or herself as required by that provision. (Code Civ. Proc., 1286.2, subd. (a).)

The applicable disclosure requirements here were those set forth in the California Rules of Courts Ethics Standards for Neutral Arbitrators in Contractual Arbitration (Ethics Standards). Ethics Standard 7 provides: A person who is nominated or appointed as an arbitrator must disclose all matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed arbitrator would be able to be impartial, including [that] . . . The arbitrator was associated in the private practice of law with a lawyer in the arbitration within the last two years . . . The arbitrator or a member of the arbitrators immediate family is or, within the preceding two years, was an employee of or an expert witness or a consultant for a lawyer in the arbitration . . . . The Ethics Standards define Member of the arbitrators immediate family as the arbitrators spouse or domestic partner and any minor child living in the arbitrators household. (Ethics Standard 2.) Although many other disclosures are required, none of them are pertinent here.

A neutral arbitrator is required to disqualify himself or herself upon the demand of any party made before the conclusion of the arbitration proceeding if any ground specified in [Code of Civil Procedure] Section 170.1 exists. (Code Civ. Proc.,  1281.91, subd. (d).)^[2] One of the grounds specified in Code of Civil Procedure section 170.1 is [a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial. ( 170.1, subd. (a)(6)(A)(iii).)

The superior court found that Judge Giffen was not required to disclose the fact that his son had previously been employed by Ropers, and that a reasonable person aware of that fact and of Judge Giffens inaccurate representation on that subject would not doubt Judge Giffens ability to be impartial. We exercise de novo review on the question of what disclosures were required and the question of whether a reasonable person aware of the facts would doubt Judge Giffens impartiality, but we defer to the superior court on any disputed issues of fact. (Reed v. Mutual Service Corp. (2003) 106 Cal.App.4th 1359, 1365; Michael v. Aetna Life & Casualty Ins. Co. (2001) 88 Cal.App.4th 925, 933.)

The Ethics Standards do not explicitly require a neutral arbitrator to disclose that his adult son was employed, more than six years previously, by an attorney for a party to the arbitration. Indeed, a neutral arbitrator is only required to disclose his own prior association with an attorney for a party if that association occurred within the previous two years. And the only Ethics Standards that concern the prior employment of a neutral arbitrators children are limited to minor children living in the neutral arbitrators household, and employment in the previous two years. It is undisputed that Judge Giffens adult son did not live in his household and that his employment by Ropers ended more than six years before Judge Giffens disclosures.

The only possible basis for requiring Judge Giffen to disclose his sons prior employment was the catch-all requirement that a neutral arbitrator disclose any fact that could cause a person aware of the facts to reasonably entertain a doubt that the proposed arbitrator would be able to be impartial. We apply an objective standard: whether an average person on the street aware of a particular fact or set of facts might reasonably question the partiality of the arbitrator. (United Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d 97, 104-105.)

We are convinced that the average person on the street would not reasonably entertain a doubt about Judge Giffens impartiality simply because, six years earlier, his adult son had been employed for two years in a different office of the large law firm that now represented defendants. The mere fact of Judge Giffens sons prior employment did not suggest that Judge Giffen had any feelings, pro or con, about his sons former employer. The superior court credited Judge Giffens declaration that he had actually forgotten about his sons prior employment, and we must defer to that factual finding. The fact that Judge Giffen did not even remember that his son had previously been employed by Ropers did not raise any inference that could support a doubt about his impartiality. While it is true that Judge Giffen made an inaccurate disclosure, which stated that no member of his family had ever been associated with Ropers, the superior courts finding that the inaccuracy was due to forgetfulness precludes any inference that Judge Giffen had any nefarious purpose in making this inaccurate disclosure. As Judge Giffen was not required to make any disclosure in this regard, his inaccurate disclosure does not suggest any lack of impartiality, but rather an inaccurate attempt to offer a more complete than required disclosure.

The superior courts findings that Judge Giffen was not required to disclose this information and that this information and his inaccurate disclosure did not raise any doubt about his impartiality must be upheld. These findings precluded Lewis from establishing any of the grounds for vacating the arbitration award. Consequently, the superior court did not err in denying her petition to vacate the award, and the judgment confirming the award must be affirmed.

III. Disposition

The judgment is affirmed.

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Mihara, J.

WE CONCUR:

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Bamattre-Manoukian, Acting P.J.

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Duffy, J.

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^[1] Lewis died while the appeal was pending. We will refer to appellant as Lewis for convenience.

^[2] All statutory references are to the Code of Civil Procedure unless otherwise noted.