Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. SCVSS109332 Frank Gafkowski, Jr., Judge. (Retired judge of the Los Angeles Mun. Ct., Southeast Dist., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Daksha Bhansali, in pro. per.; Lascher & Lascher, Wendy Lascher, and Eric R. Reed for Plaintiff and Appellant.
Reed Smith, Margaret M. Grignon, Judith E. Posner and Christine A. Kohler for Defendant and Respondent.
OPINION
Ramirez P.J.
Plaintiff, Daksha Bhansali, M.D. (Dr. Bhansali), a diagnostic radiologist specializing in neuroradiology, was a partner in Southern California Permanente Medical Group (SCPMG), a group of physicians who provide medical services to Kaiser Permanente Fontana Medical Center (Kaiser, or Kaiser Fontana). In 2002, Dale Daniels, M.D., and several other doctors (defendants), all surgeons at Kaiser, who were partners of SCPMG, signed a memorandum criticizing Dr. Bhansali’s competency and reliability, agreeing that she should not receive a full merit increase in pay, and limiting the number of additional procedures she should be permitted to do. When the defendants refused to retract the statements in the memorandum, Dr. Bhansali sued each of the defendant doctors, as individuals, for defamation, interference with economic advantage, and intentional infliction of emotional distress.
The defendants filed a motion to compel arbitration, which was granted, and later filed a motion for summary judgment in the arbitration proceedings. Finding that the memorandum was a privileged communication, and that Dr. Bhansali had failed to establish a triable issue of fact as to express malice, the arbitrator granted summary judgment in favor of the defendants, which was later confirmed by the trial court. Dr. Bhansali appeals from the order compelling arbitration on the grounds that (a) she did not sign the partnership agreement which included the arbitration term, and (b) her claims were outside the scope of the arbitration provision. She also challenges the order confirming the arbitrator’s award due to errors committed by the arbitrator. We affirm.
BACKGROUND
Because there was no trial and because the record of the arbitration proceedings is not before us, we glean the following facts from the pleadings filed in the trial court:
Dr. Bhansali joined SCPMG as an employee in September 1989, working as a radiologist at Kaiser Fontana. In September 1991, Dr. Bhansali sought to become and was elected as an SCPMG general partner. In October 2002, 13 of Dr. Bhansali’s partners, all of whom were surgeons at Kaiser Fontana, issued a written memorandum to the SCPMG area associate medical director, raising concerns about Dr. Bhansali’s (a) competency doing interventional radiology, (b) reliable usefulness of CT reporting (chest, abdomen, pelvis), and (c) interpersonal issues with patients and physicians. A copy of the memorandum was also sent to the then chief of radiology. Based on this memorandum, Dr. Bhansali’s ability to perform interventional procedures and image interpretation was restricted, and her specialty merit increase was reduced by 50 percent.
In October 2003, Dr. Bhansali filed a complaint against 15 individual doctors, 13 of which signed the memorandum. The complaint alleged three causes of action: (1) defamation, (2) interference with prospective economic advantage, and (3) intentional infliction of emotional distress. In January 2004, defendants collectively filed their answer, raising, among other affirmative defenses, the issues of binding arbitration, truth as an affirmative defense, and the assertion that the communication was privileged. (Civ. Code, § 47, subd. (c).)
In March 2005, defendants filed a motion to compel arbitration, which was later granted. On April 18, 2008, the arbitrator granted a motion for summary judgment in favor of defendants. Specifically, the arbitrator found that the memorandum was a privileged communication among members of a hospital staff regarding peer review of a physician’s qualifications, within the meaning of Civil Code section 43.8, and that Dr. Bhansali failed to show the existence of a triable issue of fact as to whether any of the defendant doctors acted with actual malice. Defendants then filed a petition to confirm the arbitrator’s award. Over Dr. Bhansali’s opposition, the trial court confirmed the arbitrator’s award and entered judgment in favor of defendants.
Dr. Bhansali timely filed a notice of appeal from the judgment.
DISCUSSION
1. The Trial Court Did Not Err in Granting Defendants’ Motion to Compel Arbitration.
Dr. Bhansali argues that the trial court erred in granting defendants’ motion to compel arbitration because (a) there was no contract to arbitrate, (b) the arbitration provision of the partnership agreement was not enforceable under implied-in-fact or estoppel theories, and (c) the arbitration provision is unconscionable. We disagree.
Determining the validity of an arbitration clause, like the interpretation of any contract, is a question of law and our review is de novo. (Buckhorn v. St. Jude Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406.) This standard of review also applies to determinations of whether an arbitration agreement is operative against a nonsignatory. (Suh v. Superior Court (2010) 181 Cal.App.4th 1504, 1512.) Code of Civil Procedure sections 1281 and 1282, governing petitions to compel arbitration, reflect a strong public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution. (Wagner Construction Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 25.) Arbitration is an accepted and favored method of resolving disputes. (Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 706.)
Although arbitration is a matter of contract, arbitration agreements are regularly enforced against nonsignatories. (Mormile v. Sinclair (1994) 21 Cal.App.4th 1508, 1511.) The theories by which a nonsignatory may be bound to arbitrate include (1) incorporation by reference; (2) assumption; (3) agency; (4) veil-piercing or alter ego; (5) estoppels; and (6) third-party beneficiary. (Suh v. Superior Court, supra, 181 Cal.App.4th at p. 1513.)
Most situations involve a preexisting relationship between the nonsignatory and one of the parties to the agreement, or where the nonsignatory party is a member of a partnership or voluntary fraternal organization whose membership confers certain benefits as a result of the contract. (Gear v. Webster (1968) 258 Cal.App.2d 57 [realtor who was a member of the Bakersfield Board of Realtors was subject to arbitration provision]; Keller Construction Co. v. Kashani (1990) 220 Cal.App.3d 222, 228-229 [general partner is bound by an agreement to arbitrate disputes entered into by the limited partnership]; Harris v. Superior Court (1986) 188 Cal.App.3d 475, 478 [doctor who was associated with a medical group was bound by arbitration agreement naming the medical group].) Bhansali was a beneficiary of the partnership agreement, and was bound by the arbitration clause despite the fact she did not sign it.
As to unconscionability, Dr. Bhansali acknowledges she did not raise this issue in the trial court. The issue is forfeited. (City of San Diego v. D.R. Horton San Diego Holding Co. (2005) 126 Cal.App.4th 668, 685, citing, among other authorities, Damiani v. Albert (1957) 48 Cal.2d 15, 18.) Nevertheless, we disagree that the partnership agreement was a contract of adhesion because it was not unilaterally forced upon her; she voluntarily applied for and was elected to the status of a partner. Further, she enjoyed the benefits of the arbitration provision when she chose, in other matters, to invoke its terms. The arbitration agreement was not unconscionable.
2. The Claims Arising from the Memorandum Relating to Plaintiff’s Deficient Performance Were Within the Scope of the Arbitration Provisions of the Partnership Agreement.
Regarding the scope of the agreement, we determine that the gravamen of the suit for defamation and other intentional torts arises from a memorandum relating to her job performance and evaluation, matters expressly covered by the arbitration agreement. The memorandum at the core of this action was prepared and signed by members of SCPMG, on SCPMG memorandum letterhead, outlined their concerns about the competence and reliability of Dr. Bhansali to perform certain procedures, and was addressed to the SCPMG Area Associate Medical Director, with a copy forwarded to the doctor who was the head of the radiology department.
The dispute resolution procedure requires arbitration of certain disputes, including those where a physician “has a complaint with respect to an act or failure to act... of the Medical Director, any Associate Medical Director, Chief of Service or Physician in Charge, or the designee of any of the foregoing, ...” A “complaint” is defined as a statement by the complaining physician that the partnership, through the decision maker, has acted in a manner that adversely affected the complaining physician’s rights and/or interests. The memorandum signed by Dr. Bhansali’s partners qualifies as an “act” within the terms of the arbitration provision of the partnership agreement.
Further, Dr. Bhansali wrote to the chief of the department of general and vascular surgery requesting a retraction of the statements. After consulting with counsel, additional letters were sent to each doctor (all of whom are partners in SCPMG) who signed the memorandum, requesting retraction. Dr. Bhansali’s causes of action allege that the defamation resulted in partial loss of merit increases and restricted ability to perform interventional procedures and image interpretation, from which she derived additional compensation. The gravamen of the action relates to a complaint that the partnership acted in a manner that adversely affected Dr. Bhansali’s rights and/or interests, resulting from the partners’ and medical director’s failures to act in retracting the statements in the memorandum, within the meaning of the arbitration provision.
The claims presented by Dr. Bhansali were within the scope of the arbitration provisions of the partnership agreement.
3. The Trial Court Properly Granted the Petition to Confirm the Arbitrator’s Award.
Dr. Bhansali claims that the arbitrator’s errors require that this court vacate the award, and that the arbitrator’s refusal to hear evidence or postpone the hearing to obtain additional expert evidence resulted in prejudice. We disagree.
Dr. Bhansali has not presented us with an adequate record of the arbitration proceedings. A party challenging a judgment has the burden of showing reversible error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 575-575; see also, Bains v. Moores (2009) 172 Cal.App.4th 445, 478 [party appealing trial court’s ruling on demurrer must include the complaint and demurrer].) The record of the arbitration proceedings was not lodged with this court, so Dr. Bhansali has not provided an adequate record.
In all other respects, the order confirming the award of the arbitrator was proper. Code of Civil Procedure section 1285 authorizes any party to an arbitration in which an award has been made to petition the court to confirm, correct or vacate the award. Code of Civil Procedure sections 1285.2 and 1285.8 permit the party opposing confirmation to file a response to the petition, requesting that the award be corrected or vacated. Unless corrected or vacated, the court shall confirm the award. (Code Civ. Proc., § 1286.) The superior court is very limited in its ability to vacate or correct an arbitration award. (Wade v. Schrader (2008) 168 Cal.App.4th 1039, 1045.)
The general rule is that the merits of the controversy between the parties are not subject to judicial review. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 11.) This means that we may not review the validity of the arbitrator’s reasoning, the sufficiency of the evidence supporting the award, or any errors of fact or law that may be included in the award. (Ibid.; Harris v. Sandro (2002) 96 Cal.App.4th 1310, 1313.)
Dr. Bhansali asserts that the award should have been vacated because her rights were substantially prejudiced by the refusal of the arbitrator to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrator to hear evidence material to the controversy.
Based on the record before us, there was no abuse of discretion by the arbitrator by refusing to postpone the matter to permit Dr. Bhansali to produce additional expert evidence. The decision whether to grant a continuance lies in the first instance with the arbitrator. (SWAB Financial, LLC v. E*Trade Securities, LLC (2007) 150 Cal.App.4th 1181, 1196.) When the arbitrator exercises discretion in denying a postponement, we must first determine whether the arbitrator abused his or her discretion, and then determine if the party suffered substantial prejudice as a result. (Id. at p. 1198.)
We find no abuse of discretion. The answer to the complaint was filed in January 2004, raising the affirmative defense that the statements were privileged pursuant to Civil Code section 47, subdivision (c). Civil Code section 47, subdivision (c), defines as a privileged publication, one made in a communication, without malice, to an interested person, concerning job performance or qualifications of an applicant for employment. At some point in the proceedings, defendants raised the communication privilege covered by Civil Code section 43.8, according immunity from liability for communications of information in the possession of a person to any hospital, hospital medical staff when the communication is intended to aid in the evaluation of the qualifications, fitness, character, or insurability of a practitioner of the healing arts.
This affirmative defense is not included in the amended answer filed in January 2004, but it is discussed in the arbitrator’s written decision, and Dr. Bhansali does not claim lack of notice of that defense.
Thus, since January 2004, Dr. Bhansali has been aware that she would need to prove actual malice to overcome the asserted affirmative defenses to defamation, which would also affect her ability to recover under the other causes of action. The summary judgment motion in the arbitration proceedings was heard four years later, concluding with a partial/final award on April 18, 2008, in those proceedings. She had four years to investigate and produce evidence of actual malice prior to the hearing. It was not an abuse of discretion to deny Dr. Bhansali’s request for a postponement.
DISPOSITION
The judgment confirming the arbitration award is affirmed. Defendants are entitled to costs on appeal.
The partnership agreement provisions relating to arbitration of claims provides that each party shall bear its own costs and attorneys fees unless the arbitrator determines otherwise. While the arbitrator’s award is silent on the issue of costs, the superior court awarded costs to defendants in its order confirming the award.
We concur: Hollenhorst J., McKinster J.