30 Cal. App. 5th 287
Cal. Ct. App. 5th2018Background
- Cox sued Dr. Bonni for malpractice after a 2010 hysterectomy; defendant later produced two physician-patient arbitration agreements dated August and September 2010.
- Defendant demanded arbitration in Feb 2012 and filed a verified petition to compel arbitration in April 2012; the trial court ordered arbitration.
- A three-arbitrator panel (two party arbitrators and a neutral from Judicate West) heard the case; interim and final awards favored defendant.
- The neutral arbitrator provided written disclosures on January 23, 2015 listing prior matters involving defendant’s substituted counsel (Carroll Kelly); plaintiff’s counsel admitted receiving those disclosures but waited until after the adverse award to move to vacate.
- Plaintiff moved to vacate the award arguing the neutral arbitrator’s disclosures were untimely and that there were improper ex parte contacts and other misconduct; the trial court initially vacated the award.
- On reconsideration (after the neutral arbitrator appeared and argued), the trial court reversed and confirmed the award; the Court of Appeal affirmed.
Issues
| Issue | Cox's Argument | Bonni's Argument | Held |
|---|---|---|---|
| Validity of arbitration agreements (statutory form: red type; and plaintiff’s claimed failure to read/understand) | Agreements lacked proof originals showed required 10‑point bold red warning; Cox did not read/understand so agreement is void | Agreements satisfied §1295(b); color copies and trial evidence sufficed; Ramirez factors not met | Court inferred trial court found statutory text present and Cox failed to carry burden to show coercion or excusable neglect; agreements enforceable |
| Waiver of right to arbitrate | Bonni delayed and litigated for months (discovery, appearances) so he waived arbitration | Bonni timely demanded arbitration (Feb 2012) and plaintiff showed no prejudice from delay; agreements permitted equivalent discovery | No waiver; courts disfavor inferring waiver absent prejudice; substantial evidence supports compelling arbitration |
| Vacatur for neutral arbitrator’s untimely disclosures (§1286.2 / §1281.9 / §1281.91) | Disclosures made months after counsel substitution; failure to disclose is statutory ground for vacatur | Cox received disclosures in Jan 2015 and knew substitution earlier but raised objection only after adverse award; doctrine bars holding disclosure in reserve | Court: objection forfeited — party on notice of untimely disclosure must object promptly; vacatur for untimely disclosure was erroneous |
| Vacatur for alleged ex parte communications and other misconduct | Neutral had ex parte contacts with defense counsel and other improper conduct (pressuring dissent, involving ADR admin); prejudiced Cox | Communications were administrative, or were disclosed (the waiver of costs was noted in the final award); no substantial prejudice or disqualifying relationship | Court: even if communications occurred, they did not constitute disqualifying relations or cause substantial prejudice; forfeiture applies where plaintiff knew of at least one communication pre‑hearing; no vacatur |
Key Cases Cited
- St. Agnes Medical Ctr. v. PacifiCare of Cal., 31 Cal.4th 1187 (Cal. 2003) (waiver of arbitration requires showing of prejudice; waivers not lightly inferred)
- Dornbirer v. Kaiser Found. Health Plan, Inc., 166 Cal.App.4th 831 (Cal. Ct. App. 2008) (party on notice of an arbitrator’s prior matters must timely object; holding disclosure in reserve until after an adverse award is impermissible)
- United Health Ctrs. of San Joaquin Valley, Inc. v. Superior Court, 229 Cal.App.4th 63 (Cal. Ct. App. 2014) (arbitrator disclosure duties and timeliness; objections must be timely)
- Ashburn v. AIG Fin. Advisors, Inc., 234 Cal.App.4th 79 (Cal. Ct. App. 2015) (appellate review of order compelling arbitration from judgment confirming award)
- Ramirez v. Superior Court, 103 Cal.App.3d 746 (Cal. Ct. App. 1980) (circumstances in which a signor may avoid an arbitration agreement for not reading/understanding it)
- Le Francois v. Goel, 35 Cal.4th 1094 (Cal. 2005) (limits on reconsideration motions; court may reconsider on its own motion with notice/opportunity to be heard)
- Barthold (In re Marriage of Barthold), 158 Cal.App.4th 1301 (Cal. Ct. App. 2008) (clarifies that a trial court may grant relief on reconsideration on its own motion when correcting its own error)