Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County No. BS119250, Charles F. Palmer, Judge.
John V. Colen, in pro. per., for Plaintiff and Appellant.
Arnold & Porter, Lawrence A. Cox and Brian K. Condon for Defendants and Respondents.
CROSKEY, J.
Appellant John V. Colen (Colen) has appealed from a judgment that confirms an arbitration award. The award was issued against Colen and in favor of Kaiser Foundation Hospitals, Kaiser Foundation Health Plan, Inc., and Southern California Permanente Medical Group (Kaiser). In the arbitration, Colen claimed damages arising from medical treatment he received from Kaiser. The arbitration award was issued after Kaiser’s motion for summary judgment was granted in the arbitration. The arbitrator granted the motion because (1) it was supported by a declaration from an expert witness medical doctor who opined that Kaiser’s treatment and care of Colen did not fall below the relevant standard of care, and (2) Colen failed to support his opposition to the motion with evidence from an expert to refute Kaiser’s expert’s opinion. After the arbitration award was issued, Colen filed a petition in the superior court to vacate the award and Kaiser filed a response and request to have the award confirmed. The trial court’s judgment on the matter recites that the court denied Colen’s petition and granted Kaiser’s request for confirmation of the award.
The rules for arbitration between Kaiser and its members provide for summary judgment as part of the arbitration process.
In between the filing of Colen’s petition to vacate the arbitration award and the judgment in favor of Kaiser arising from the denial of that petition, Kaiser filed (1) a motion for an order extending the deadline by which Kaiser was required to file its response to the petition to vacate the arbitration award, and (2) an ex parte application for an order shortening time to hear that motion. The ex parte application and the motion were granted. In this appeal, Colen challenges the granting of that motion to shorten time, and the granting of Kaiser’s motion for summary judgment. We find that Colen’s arguments on appeal are without merit and we will affirm the trial court’s judgment.
BACKGROUND OF THE CASE
1. The Arbitration Case
In 2005 to 2007, Colen received examinations and treatment from Kaiser (including among other things, five surgeries), that related to a medical procedure that had been performed on his shoulder by non-Kaiser medical providers in 2001. In August 2007, Colen served a demand for arbitration on Kaiser. He alleged that Kaiser was negligent in evaluating, diagnosing and treating him, and such negligence resulted in injuries to him. The demand was served by the attorney who was representing plaintiff at that time.
Colen and Kaiser chose retired Judge Eric Younger to serve as a neutral arbitrator, and in February 2008, Younger gave written notice of his agreement to serve as the arbitrator. By that time Colen was acting inpropria persona and apparently he has continued to represent himself throughout the arbitration and the court proceedings by which he sought to vacate the arbitration award.
In approximately March 2008, Colen served a document entitled a demand for arbitration and a complaint alleging professional negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress. Named as respondents in that document are Kaiser, King-Drew Medical Center, the Los Angeles County Board of Supervisors, the Riverside County Board of Supervisors, various medical centers, and various doctors. These other respondents were not involved in the arbitration and are not involved in this appeal.
In August 2008, Kaiser filed its motion for summary judgment on Colen’s claims against it. Kaiser asserted that its employees and its agents all had complied with the standard of care required of them with respect to the care and treatment of Colen, and therefore there were no triable issues of material fact as to Kaiser and summary judgment in its favor was appropriate. Kaiser based its motion on, among other things, the expert opinion of a medical doctor, board certified in orthopaedic surgery, who submitted a declaration stating that he reviewed the various medical records associated with Colen’s claim against Kaiser and, in his opinion, Kaiser and its agents and employees had all complied with the standard of care required of them with respect to their care and treatment of Colen.
The papers that Colen filed in opposition to Kaiser’s motion for summary judgment included a lengthy list of what he contended were triable issues of material fact that should defeat the summary judgment motion, as well as a recitation of what he asserted had occurred over the course of years with respect to the various medical procedures that were performed on his shoulder, including those performed by Kaiser. He also submitted evidentiary objections to portions of Kaiser’s moving papers. Additionally, his response to Kaiser’s separate statement disputed all of the asserted undisputed material facts in that separate statement. However, what Colen did not include in his opposition papers was evidence from a medical professional in support of his opposition—evidence to refute Kaiser’s expert’s opinion that Kaiser’s treatment of Colen was within the relevant standard of care.
The hearing on the summary judgment motion was set as a telephonic hearing and scheduled for November 4, 2008. Colen requested a continuance of the hearing. The general basis of that request was that Kaiser was not cooperative in responding to Colen’s discovery and it was only after reviewing Kaiser’s moving papers that the identity of some of the medical personnel associated with his treatments came to light. Therefore, Colen claimed that he needed to secure testimony from several other persons as well as copies of writings and records. Colen also asserted that a continuance was needed so that the California Medical Board and the California Osteopathic Medical Board could express its views regarding (1) the standard of care with respect to the five surgeries and an additional procedure performed on Colen, and (2) Colen’s charge that Kaiser’s expert witness had engaged in unprofessional conduct when the expert provided a declaration in support of Kaiser’s summary judgment motion.
In its reply papers for its summary judgment motion, Kaiser cited to the Supreme Court’s opinion in Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001, where the court reaffirmed the rule that in a medical malpractice case, unless the conduct required of a doctor by the particular circumstances of the case is within the common knowledge of lay persons, the standard of care to be applied is a matter within the knowledge of experts and it can only be proved by their testimony. At the November 4 hearing for the summary judgment motion, the arbitrator addressed the written complaints that Colen had made to the respective medical boards, and the arbitrator advised Colen that as far as he (the arbitrator) knew, providing litigants with expert opinions regarding the standard of care was not a function of any state agency.
Colen had already been cited to the Flowers v. Torrance Memorial Hospital Medical Center case. Kaiser’s motion for summary judgment, which was served on Colen on August 21, 2008, cited it.
The arbitrator granted Colen a continuance but, in doing so, he set out certain steps that Colen needed to take before the new hearing date. The arbitrator’s instructions reaffirmed that Colen needed to obtain a medical expert to support the claim he was making against Kaiser.
Specifically, the arbitrator granted Colen an initial continuance on the following conditions, which the arbitrator then reiterated to the parties by e-mail on November 6. First, the arbitrator would have to receive, by 5:00 p.m. on November 11, an e-mail or fax letter from a physician “who can arguably qualify as an expert on issues essential to [Colen’s] case, saying that he/she will be prepared to file a Declaration which rebuts that of [Kaiser’s own standard of care expert whose declaration was included with Kaiser’s moving summary judgment papers].” If the arbitrator received the letter, then the hearing on the summary judgment motion would be continued for approximately one additional week.” During that additional week a copy of Colen’s expert’s declaration would have to be sent to the arbitrator and Kaiser’s attorney at least 48 hours before that continued hearing. If that occurred, then the hearing on the motion would be continued again to a specific date. However, if Colen did not present the arbitrator with a letter from a qualified physician attesting to his or her willingness to submit a declaration rebutting Kaiser’s expert’s opinion, then the arbitrator would (1) draft a tentative ruling on the summary judgment motion which would be based on the motion papers already presented by the parties, (2) e-mail the tentative ruling to the parties, and (3) set a hearing date for the summary judgment motion. Colen failed to comply with these instructions.
The arbitrator also acknowledged that Colen wanted a delay in the summary judgment hearing because he contended that Kaiser was not cooperating with discovery. However, the arbitrator wrote in his ruling that Colen had not presented evidence on whether the persons asserted to be standing in the way of discovery are related to Kaiser. The arbitrator also wrote that although theoretically it might be possible to present proof on standard of care issues (which would create questions of fact to oppose the summary judgment motion), by artfully cross-examining witnesses who presumably would be adverse witnesses, this would be “the very longest of long-shots, ” and Colen’s “belief that he can produce such evidence seems completely fanciful.” Additionally, the arbitrator noted that although Colen indicated he believed he did not give informed consent for one of the surgeries on which he based his allegation of medical negligence, even if such lack of informed consent could be demonstrated by Colen or a percipient witness, he would still need an expert witness to show a causal connection between lack of informed consent and medical consequences.
The arbitrator issued his award on November 18, 2008. In the award, the arbitrator (1) discussed the materials submitted by the parties in connection with the summary judgment motion, (2) observed that Colen’s evidentiary objections to Kaiser’s points and authorities were not appropriate because points and authorities are not intended to be evidence, and (3) noted that Colen’s evidentiary objections to Kaiser’s expert’s declaration were not well taken because expert witnesses are permitted to cite to materials they have reviewed even though the materials are hearsay and the expert lacks personal knowledge with respect to them.
The arbitrator prefaced the heart of his ruling with the observation that “[i]t can be said with certainty [that Colen’s] injuries are very major, long-lasting and debilitating. This is part of the tragedy of the result here, i.e., that whether there was medical negligence or not (and the only evidence on that subject, coming from [Kaiser’s expert witness], is, of course, negative), Mr. Colen has been through truly extraordinary problems with his shoulder. This is not a nuisance case. Indeed, most anyone looking at Mr. Colen’s statement of facts would wonder ‘what in the world went wrong with his medical care?’ and it is tragic that the Arbitrator’s answer must be ‘I don’t have a clue, ’ as the evidence upon which he might well have had a ‘winning’ case simply was never presented.” (Italics omitted.) The arbitrator noted that in conversations among friends, Colen’s argument that he had horrible medical problems and therefore Kaiser must have done something wrong “is not an illogical leap, but, sadly, it does not come close to refuting—in the evidentiary requirements of... our law—[Kaiser’s] evidence that the standard-of-care was complied with.”
Citing Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, the arbitrator noted that under California law, Colen “was presented with an absolute requirement of negating [the evidence of Kaiser’s expert witness] in at least some material respect” and Colen did not meet that requirement. The arbitrator concluded that because Colen had not produced evidence (such as a declaration or deposition testimony) from a medical expert regarding whether Kaiser’s medical caregivers failed to exercise the level of skill, knowledge and care that is ordinarily possessed by medical professionals when they treated Colen, he could not prevail in the arbitration. The court noted that expert opinion evidence is required in arbitrations and trials because arbitrators and judges are not trained in medicine. The arbitrator observed that even though he regretted having to grant Kaiser’s summary judgment motion, “this arbitration flows from a system based, if informally, on law and on evidence, not sympathy.” The arbitrator also mentioned that Colen had made a complaint to the state medical board about Kaiser’s expert witness, who, the arbitrator noted, “had nothing whatsoever to do with [Colen’s] care.”
2. Motion to Vacate Award
Colen filed a petition to vacate the arbitration award on February 24, 2009. As grounds under Code of Civil Procedure section 1286.2 for vacating the award, Colen asserted that (1) the arbitrator exceeded his authority and the award cannot be fairly corrected, and (2) the arbitrator unfairly refused to postpone the summary judgment hearing or to hear evidence that would be useful to settle the dispute. Regarding the first ground, Colen asserted that the arbitrator failed to hold a mandatory settlement meeting as provided for in “Arbitration Rule 26, ” apparently meaning a rule in the “Rules for Kaiser Permanente Member Arbitrations.” Colen did not explain how the failure to hold the mandatory settlement meeting prejudiced him.
Unless otherwise indicated, all references herein to statutes are to the Code of Civil Procedure.
Regarding his second ground for vacating the arbitration award, Colen asserted in his petition to vacate that on November 18, 2008, the arbitrator refused Colen’s request that a ruling on the summary judgment motion be postponed until Colen received a ruling from the medical board regarding Colen’s complaint against Kaiser’s expert witness. Colen cited a published opinion of the California Attorney General, dated April 28, 2004, in which the attorney general opined that when a physician testifies as an expert in a civil proceeding regarding what the applicable standard of care is for a defendant in that proceeding and whether the defendant’s actions fell below that standard of care, the physician may be subject to professional discipline by the medical board if that testimony constitutes unprofessional conduct. Colen also asserted that “rule 24” provides that an arbitrator should serve his or her award within 18 months of when the “independent administrator” receives a demand for arbitration, but if the parties, their attorneys and the arbitrator all agree that a claim is a complex case, the 18 months can be extended to 24 to 30 months, and in an extraordinary case where disposition cannot be made within 30 months the time may be extended if all parties, their attorneys and the arbitrator agree to the extension. Colen asserted that only 15 months had lapsed between service of his demand for arbitration on the independent administrator (which occurred on August 9, 2007), and the date of the arbitrator’s award (November 18, 2008). He asserted that “[n]ot counting fee waiver delay time and the 90 days postponement, there was still time up to August 10, 2010 [With a Designation of Extraordinary Arbitration under Kaiser Arbitration Rule 24].” Colen’s petition did not present evidence that Kaiser, its attorney, and the arbitrator would have agreed to extend the 18-month deadline.
The petition to vacate the arbitration award was heard and denied on January 8, 2010, and the minute order for that date states that on the same day the court granted Kaiser’s request to confirm the award. Judgment in favor of Kaiser was signed and filed on February 22, 2010. Notice of entry of judgment was served on Colen on March 9, 2010, and Colen filed this timely appeal from the resulting judgment.
DISCUSSION
1. Colen Has Not Demonstrated That the Trial Court Abused Its Discretion When It Extended the Time for Filing Kaiser’s Response to the Petition to Vacate the Arbitration Award
As noted above, Colen filed his petition to vacate the arbitration award on February 24, 2009, and the following day he served it on Kaiser by mail addressed to an address in Pasadena, California. Section 1290.6 provides that a response to a petition to confirm, correct or vacate an arbitration award must be filed and served within10 days after service of the petition if the petition was served inside the State of California. Section 1290 provides that “[t]he allegations of a petition are deemed to be admitted by a respondent duly served therewith unless a response is duly served and filed.”
Kaiser sought a one-day extension of time from the trial court to file its response to Colen’s petition to vacate the arbitration award. It did so using the following analysis. Section 1013 provides for a five-day extension of the 10-day period in which to file Kaiser’s response to Colen’s petition to vacate because service of the petition was made by first-class mail. Thus, Kaiser argued, the fifteenth day after Colen’s service of his petition on Kaiser fell on Thursday, March 12. Kaiser stated that although it timely served its response on Colen on March 12, it was one day late in filing the response with the court because the response was not filed until March 13. Thus, Kaiser requested a one-day extension of the time to file its response. Section 1290.6 provides that the statutory time 10-day limit for serving and filing a response may be extended by a written agreement by the parties, or by the court for good cause. Here, Colen refused to grant an extension of time to respond. The trial court granted Kaiser’s motion for the one-day extension.
On appeal, Colen contends that the trial court committed reversible error when it granted Kaiser the extension of time under section 1290.6. Colen overlooks section 1013’s five-day extension of the period. Thus, he contends that the trial court actually granted a “3-4” day extension of section 1290.6’s 10-day response period. Moreover, that is his only analysis of the question as to whether the trial court erred in granting the extension of time to Kaiser. He also failed to acknowledge that section 1290.6 provides for a 10-day extension in the discretion of the trial court. Thus, he does not acknowledge that the trial court had discretion to extend Kaiser’s time to respond to his petition, and he does not analyze whether the trial court abused that discretion.
We note that Colen also contends in this appeal that the trial court committed reversible error when it “grant[ed] the late considered Petition to Confirm Kaiser’s Arbitration Award.” Colen does not cite to the appellate record to show that any Petition to Confirm the arbitration award was filed by Kaiser. However, we do note that Kaiser requested, in its response to Colen’s petition to vacate the award, that the trial court confirm the award. Section 1285.2 provides that “[a] response to a petition under this chapter may request the court to dismiss the petition or to confirm, correct or vacate the award.” Thus, by granting Kaiser’s motion to extend the time for filing its response to the petition to vacate the arbitration award, the trial court also extended the time for requesting that the arbitration award be confirmed.
The only documents that are in the clerk’s transcript are papers filed by Colen and some of those generated by the trial court. We granted Kaiser’s request to augment the appellate record with documents it filed, as well as papers filed by Colen and additional papers of the trial court.
2. Colen Did Not Present Cause to the Trial Court to Grant His Petition to Vacate the Arbitration Award
a. Standard of Review
Although a court of appeal reviews an arbitration award deferentially, its review of a trial court’s order on a section 1285 petition concerning the award is reviewed de novo. (Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 376, fn. 9, recognizing de novo standard of review for an order confirming an award; SWAB Financial, LLC v. E*Trade Securities, LLC (2007) 150 Cal.App.4th 1181, 1196 (SWAB Financial), trial court order vacating an award; Schlessinger v. Rosenfeld, Meyer & Susman (1995) 40 Cal.App.4th 1096, 1103, trial court order dismissing petition to vacate an award.) Further, when the trial court’s ruling includes a determination of disputed factual issues, we apply the substantial evidence test to those issues. (SWAB Financial, supra, 150 Cal.App.4th at pp. 1196, 1198; Malek v. Blue Cross of California (2004) 121 Cal.App.4th 44, 55-56.) Here, there were no disputed issues of material fact because Colen never presented testimony from a medical expert to raise a question of fact regarding the testimony presented by Kaiser in its medical expert witness’ declaration.
b. Issues Presented to Trial Courts and Reviewing Courts by Section 1286.2, Subdivision (a) (5)
Colen’s appellate challenge to the denial of his petition to vacate the arbitration award essentially rests on his trial court request to have the award vacated under section 1286.2, subdivision (a) (5), to wit, that the hearing on Kaiser’s motion for summary judgment should have been postponed by the arbitrator because Colen presented sufficient cause for the postponement—a need to marshal his evidence to defeat the motion—and by not receiving the postponement, his rights were substantially prejudiced. Subdivision (a)(5) has been described as a safety valve that permits courts to intercede “ ‘when an arbitrator has prevented a party from fairly presenting its case.’ ” (SWAB Financial, supra, 150 Cal.App.4th at p. 1196.)
Under the arbitration rules that governed the parties’ arbitration, whether to grant a postponement of an arbitration hearing is a matter for the arbitrator. The person requesting the postponement must state the reasons in writing for the request and the arbitrator must give a written decision on the request that states the reason for granting or denying it. This indicates an intention for the arbitrator to have discretion on the matter of postponements of hearings.
In SWAB Financial, the court stated that when an arbitrator exercises discretion in denying a continuance of a hearing, the trial court that has been asked to vacate the arbitration award must decide whether the arbitrator abused his or her discretion by denying the continuance after sufficient cause for the continuance was shown. And if there was an abuse of discretion, the trial court must also decide whether the party asking for the postponement suffered substantial prejudice as a result of the arbitrator’s denial of the continuance. (SWAB Financial, supra, 150 Cal.App.4th at p. 1198.) Because we apply a de novo standard of review to the trial court’s order denying Colen’s petition to vacate the arbitration award, we must decide those same two issues in this appeal. If Colen presented sufficient reason for the continuance of the summary judgment hearing, did the arbitrator abuse its discretion when it denied Colen that continuance? And if there was such an abuse of discretion, did Colen suffer substantial prejudice because of it? If the answer to both of those questions is “yes, ” then Colen’s motion to vacate the arbitration award should have been granted.
c. Colen Did Not Present Sufficient Reason to Postpone the Hearing on Kaiser’s Summary Judgment Motion
Colen’s demand for arbitration was served on Kaiser on August 9, 2007. On February 12, 2008, the arbitrator gave notice of his intent to serve as the parties’ arbitrator. It appears that the arbitration hearing was scheduled for December 8, 2008.
In the meantime, on August 21, 2008, Kaiser served its motion for summary judgment on Colen in which Kaiser asserted that it had complied with the applicable standard of care in its care and treatment of Colen and there are no triable issues of material fact relating to Colen’s claims against Kaiser.
The summary judgment motion hearing was set for November 4, 2008. Colen obtained a continuance of that hearing to November 11, but as noted above, the continuance was based on two very specific conditions. Colen had to submit a letter from medical expert in which the expert stated he would present a declaration, in support of Colen’s opposition to the summary judgment motion, to rebut Kaiser’s medical expert’s declaration. If Colen submitted the letter, then a further continuance would be automatically granted to allow Colen to meet the second condition, which was submission of the declaration from Colen’s medical expert. If Colen met that second condition, a third continuance would be automatically granted.
In his detailed ruling granting Colen the continuance of that November 4 summary judgment hearing, the arbitrator observed that even though it was not likely that Colen would locate a medical expert witness for his case “because he has not done so in the many months this matter has been moving toward hearing, ” nevertheless the arbitrator would “indulge [Colen] in every courtesy and opportunity which are appropriate to his propria persona status, while preserving [Kaiser’s] rights to a result which is consistent with California law.” The arbitrator also observed that in March and May of 2008, as well as at the November 4, 2008 hearing, he had explained to Colen “in detail the perils of attempting to represent onself [sic] in a medical malpractice action” and he explained that “the necessity to arrange for a medical expert to support [Colen’s] case [was] perhaps the most important function to be performed, either by an attorney for [Colen] or, if he persisted in moving forward by himself, by [Colen].” The arbitrator also stated that Colen was advised that if he did not come forward with his own medical expert, most certainly Kaiser would move for summary judgment and “the chances of its being granted were overwhelming.” Additionally, the arbitrator stated that in May Colen was given the Los Angeles County Bar Association’s Lawyer Referral Website.
Colen told the arbitrator that he called two people on the Bar website and was turned down, and the reason in one of those calls was because a $600 retainer was required.
As stated above, Colen never met even the first condition to produce a letter from a medical doctor who agreed to submit an opinion declaration regarding standard of care issues. So, the summary judgment motion was heard on November 18. In his petition to vacate the arbitration award, Colen stated that on November 18 he asked for another continuance of the summary judgment hearing until he could receive a ruling from the medical board regarding the complaint that he filed with the board against Kaiser’s medical expert witness. The complaint filed with the medical board asserts that the expert witness engaged in unprofessional conduct. Specifically, in his complaint Colen challenged the truthfulness of various statements of fact made by the medical expert, in the expert’s declaration, regarding Colen’s medical conditions and treatments. Colen stated in his petition to vacate the arbitration award that he wanted the medical board ruling so that he could show the arbitrator that the expert’s declaration should be disallowed in the arbitration. Colen asserted that the denial of a continuance on November 18 constituted a “gross abuse of discretion.” He makes the same argument in this appeal. He contends that in lieu of the letter that the arbitrator told him to submit by November 11, he made an attempt on that date to submit to the arbitrator, via e-mail, the complaint to the medical board that he made about Kaiser’s expert. He contends that submitting the medical board complaint rather than the letter was an attempt “to utilize and substitute the services of Medical Experts at the California Medical Board to evaluate the Standard of Care Statements by [Kaiser’s expert] in his Kaiser Declaration within the Neutral Arbitrator’s time deadline.” Clearly, that argument does not wash. Sending the arbitrator a copy of the medical board complaint is not even remotely the same as sending him a letter from a medical doctor who is willing to file a declaration on behalf of Colen to support Colen’s opposition to the motion for summary judgment. Moreover, Colen had already been warned in Kaiser’s summary judgment reply papers that a letter from a medical board would not be made under oath and thus would not be effective as proof to support his opposition to the summary judgment.
In his medical board complaint filed against Kaiser’s expert, Colen stated that he also filed complaints with the nurses’ registry regarding some of the nurses who treated him.
Moreover, Colen’s request to continue the hearing to allow time for a reply from the medical board, even if such a reply would be sufficient to defeat the summary judgment motion, was quite untimely. According to Colen, he submitted his complaint about Kaiser’s expert to the medical board in early November 2008. Thus, although Kaiser served Colen with its motion for summary judgment on August 21, 2008, and although that motion specifically states that the hearing on it would be on November 4, 2008, Colen let over two months lapse before he took what he asserts was action designed to refute the standard of care evidence presented by Kaiser’s expert witness. “It is, after all, the malpractice claimant in arbitration, like the plaintiff in litigation, who bears the primary responsibility of exercising diligence in order to advance progress towards the resolution of its claim.... ” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 980.) Thus, there was no abuse of discretion when the arbitrator denied Colen a second continuance of the summary judgment hearing.
d. Colen Has Not Demonstrated the Arbitrator Was Biased Against Him
Colen contends the arbitrator was biased against him. Colen contends bias is demonstrated by certain remarks made by the arbitrator in his arbitration award. In footnote 4 in that award, the arbitrator stated he was aware of Colen’s complaint about Kaiser’s expert to the medical board and that the complaint was based on the expert’s declaration. The arbitrator stated he was not aware of any fact “suggesting any merit in that complaint; [the expert’s] offense seems to consist of Mr. Colen’s disagreeing with him.” In another portion of the award the arbitrator stated: “It is clear from Mr. Colen’s having made a complaint to the state about [Kaiser’s expert] (who merely submitted an evidentiary Declaration, and had nothing whatever to do with his care) that he will seek to cause professional harm to anyone who questions his views about his medical treatment, and this is also sad.”
Plaintiff never claimed bias, in his petition to vacate the arbitration award, as a ground for vacation. Nor do the arbitrator’s remarks demonstrate it. Indeed, the whole of both the arbitration award and the arbitrator’s November 6 ruling wherein he granted Colen a continuance of the summary judgment hearing demonstrate quite the opposite. They convey sympathy for Colen’s physical condition and Colen’s apparent lack of understanding of what he needed to do to stave off a summary judgment.
DISPOSITION
The judgment from which Colen has appealed is affirmed. All parties shall bear their own costs on appeal.
We Concur: KLEIN, P.J., ALDRICH, J.
Moreover, that was not the first time that Colen had been informed that proof regarding his medical care would require testimony from a medical expert. In his “Arbitration Award on Granting of Respondents’ Motion for Summary Judgment, ” the arbitrator stated that he had done everything he knew how to do to encourage Colen to find an attorney to present his case in arbitration, and that his initial efforts at encouraging Colen to obtain counsel were in March and May of 2008. The arbitrator noted that he had told Colen that even with all of the experience he (the arbitrator) had in presiding over numerous arbitrations, trials and settlements of medical malpractice cases, and even though he had graduated with honors from a prestigious law school, he would never represent himself in a medical malpractice case. The arbitrator also noted that when he encouraged Colen to find an attorney, he stressed that perhaps the most important thing an attorney could do for Colen was to arrange for a medical expert to support Colen’s case against Kaiser, and he admonished Colen that finding such an expert to support his case was “absolutely critical” because Kaiser would “certainly move” for a summary judgment if Colen did not have an expert to support his claims against Kaiser. The arbitrator noted that even though plaintiff expressed an understanding of the points that the arbitrator was making to him, comments made by Colen later, “especially at the final oral argument on November 18 make it clear that he did not understand them.”
The arbitrator also noted that Colen told him that he had contacted a few attorneys but preferred to press his case on his own. The arbitrator observed that because it did not “seem appropriate” for him to press Colen about his efforts to secure an attorney, it was not possible to know whether Colen did not go to the “right” attorneys or did not try hard enough, or whether appropriate attorneys were contacted but they did not feel that Colen’s case had merit or sufficient economic potential. The arbitrator observed that Kaiser’s counsel was of necessity present during the conversations that the arbitrator had with Colen and therefore there was a risk of Colen inadvertently revealing a potentially privileged communication.
We observe that in the Rules for Kaiser Permanente Member Arbitrations, Colen was advised that a medical expert is “[a]lmost always” necessary to prove a claim of medical malpractice, and that is pursuant to California law. The rules also give a short description of what a summary judgment is and they state that if Kaiser has included an expert’s declaration with its summary judgment papers, “you probably need to do the same.”