Arbitrator’s Disclosure Obligations And Motion To Vacate.

In Dornbirer v. Kaiser Foundation (2008) 166 Cal.App.4th 831, [83 Cal.Rptr.3d 116], the arbitrator in a dispute between a patient and her medical provider (Kaiser) disclosed his prior participation in several matters involving Kaiser and its legal counsel. The disclosure statement omitted multiple pieces of information required under Code of Civil Procedure section 1281.9, including the number of times the arbitrator had presided over arbitrations in which Kaiser was a party, as well as the dates, results, and names of all attorneys involved in those arbitrations. The patient did not make further inquiry into these omissions, nor did she serve a disqualification notice or demand pursuant to section 1281.91. The Dornbirer court held that although an arbitrator has a duty to comply with 1281.9, the disclosure of past or present relationships constitutes inquiry notice of the potential for bias and does not require an arbitration award to be vacated “when the arbitrator has generally disclosed the grounds for disqualification.” Then, in 2010, the Legislature added section 1281.85c), which provides that the ethics requirements and standards applicable to arbitrators “are nonnegotiable and shall not be waived.”

In the present wrongful termination matter, the arbitrator is a presiding judge who was first suggested by the defense, and who ruled in favor of the defense. Plaintiff asked the superior court to vacate the arbitration award on the ground the arbitrator failed to comply with the mandatory disclosure requirements. Plaintiff’s counsel declared: “When I did not receive any Code of Civil Procedure 1281.9 disclosure from him, I trusted that this meant he had nothing to disclose.” The superior court granted plaintiff’s motion to vacate the award.

The appellate court granted the defendant employer’s petition for writ of mandate, stating: “The question before us is whether the forfeiture principles stated in Dornbirer remain viable after the enactment of section 1281.85(c). We conclude that they do.” The matter was remanded to the trial court “to determine the factual posture of the case and whether the principles as stated in Dornbirer apply to those facts,” while, at the same time stating: “While it is clear Judge Broadman willfully failed to comply with his disclosure obligations, our opinion should not be construed as condoning or excusing his behavior.” (United Health Centers v. Sup. Ct. (Vradenburg-Haworth) (Cal. App. Fifth Dist.; August 25, 2014) 229 Cal.App.4th 63, [177 Cal.Rptr.3d 214].)