Opinion
F072290
02-17-2017
MANJIT KAURA, Plaintiff and Appellant, v. KAISER FOUNDATION HEALTH PLAN, INC., et al., Defendants and Respondents.
Oddenino & Gaule and John V. Gaule for Plaintiff and Appellant. LeBeau Thelen and Patrick Charles Carrick for Defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. S-1500-CV-283786)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge. Oddenino & Gaule and John V. Gaule for Plaintiff and Appellant. LeBeau Thelen and Patrick Charles Carrick for Defendants and Respondents.
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Appellant appeals from a judgment entered on an arbitration award. She challenges the trial court's denial of her petition to vacate the arbitration award. Because her opening brief addresses only the substance of the arbitrator's nonappealable decision, she has not established any reversible error in the trial court's denial of the petition to vacate. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Manjit Kaura initiated a contractual arbitration proceeding against Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, Southern California Permanente Medical Group, and two doctors (Kaiser parties), seeking damages for alleged medical malpractice. She alleged the Kaiser parties misdiagnosed her tongue cancer, causing a delay in treatment and resulting in damages. The Kaiser parties brought a motion for summary judgment in the arbitration proceeding, in part asserting Kaura could not establish the element of causation. The motion was supported by the declaration of Dr. Judith Luce, an oncologist. Based on a review of Kaura's medical records, Luce opined that, even if Kaura had been diagnosed earlier, the outcome would not have been any different; she still was a Stage I patient when diagnosed, and the delay had no impact on her prognosis or her treating modality. The surgery she underwent was the same that would have been performed had she been diagnosed earlier.
Kaura's opposition to the motion was supported by the declaration of Dr. E. A. Hankins III, a dermatologist, who opined, based on Kaura's medical records that a biopsy should have been scheduled much earlier and, if it had been, the cancer would have been diagnosed earlier and it would not have been as extreme. Each side objected to portions of the other side's expert declaration.
The arbitrator granted the Kaiser parties' motion for summary judgment. He found the undisputed facts asserted by the Kaiser parties (including those supported by the Luce declaration) were "supported by competent, admissible evidence" and met their burden of demonstrating there was no triable issue of material fact on causation or damages. He concluded Kaura had not met her burden to show the existence of a triable issue of material fact. Therefore, he granted the motion and ordered that judgment be entered in favor of the Kaiser parties.
Kaura petitioned to vacate the arbitration award on the ground misconduct of the neutral arbitrator substantially prejudiced her rights. (Code Civ. Proc., § 1286.2, subd. (a)(3).) The alleged misconduct was that the arbitrator "inexplicably ignored" Hankins' declaration, which refuted the Luce declaration, and he failed to rule on Kaura's objections to the Luce declaration. The Kaiser parties opposed the petition, in part asserting Kaura had not established valid grounds for vacating an arbitration award. The trial court denied the petition, finding there was no misconduct of the neutral arbitrator substantially prejudicing Kaura's rights, and the Hankins declaration did not controvert the Luce declaration to raise a triable issue of material fact. The trial court subsequently entered judgment confirming the arbitration award, and Kaura's prematurely filed appeal was deemed an appeal from that judgment.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
DISCUSSION
I. Standard of Review
Arbitration awards are subject to extremely narrow judicial review. (Marsch v. Williams (1994) 23 Cal.App.4th 238, 243.) Courts will not review the merits of the controversy between the parties, the validity of the arbitrator's reasoning, or the sufficiency of the evidence supporting an arbitrator's award. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 11.) "[T]he exclusive grounds for vacating an arbitration award are the [six] statutory grounds found in Code of Civil Procedure section 1286.2. [Citation.] Unless one of the enumerated grounds exists, a court may not vacate an award even if it contains a legal or factual error on its face which results in substantial injustice." (Marsch, supra, at pp. 243-244, fns. omitted.)
"The party seeking to vacate an arbitration award bears the burden of establishing that one of the ... grounds ... applies and that the party was prejudiced by the arbitrator's error." (Royal Alliance Associates, Inc. v. Liebhaber (2016) 2 Cal.App.5th 1092, 1106.) We review de novo the trial court's order on the petition to vacate the arbitration award; we review for substantial evidence any determinations of disputed factual issues. (Ibid.)
II. Issues on Appeal
On appeal, the judgment is presumed correct and the burden is on the appellant to affirmatively demonstrate error. (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1408.) The appellant "must raise claims of reversible error [and] 'present argument and authority on each point made.'" (In re Sade C. (1996) 13 Cal.4th 952, 994.) Each point raised in the appellant's brief must be stated under a separate heading or subheading summarizing the point and must be supported by argument and, if possible, by citation of authority. (Cal. Rules of Court, rule 8.204(a)(1)(B).) If not, the argument may be treated as forfeited. (Golden Day Schools, Inc. v. Department of Education (1999) 69 Cal.App.4th 681, 695, fn. 9; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4 (Opdyk).)
The argument section of Kaura's opening brief presents only one heading: "The arbitrator and the trial court both erred in determining there was no triable issue of fact raised by the Appellant's opposition to Respondents [sic] motion for summary judgment." Under that heading, Kaura provides authorities regarding when a motion for summary judgment should be granted, then reviews the expert opinion evidence presented to the arbitrator in support of and opposition to the Kaiser parties' motion for summary judgment. She asserts Hankins' declaration rebutted Luce's declaration, then concludes: "Both the arbitrator and the lower court seemed to have based their rulings on credibility of Dr. Hankins' declaration and whether Appellant would have ultimately prevailed at trial. The only issue for the arbitrator and the lower court was a determination as to whether there was a triable issue of fact. Dr. Hankins' declaration established a triable issue of fact."
Kaura appealed from the judgment confirming the arbitration award, which was entered after the trial court denied her petition to vacate the arbitration award. After arbitration, the trial court must confirm the arbitration award as made, unless it corrects the award and confirms it as corrected, vacates the award, or dismisses the proceeding. (§ 1286.) Kaura did not seek correction of the award or dismissal of the proceeding. Thus, the only issue that may be raised in this appeal is whether the trial court properly denied Kaura's petition to vacate the award and therefore correctly entered a judgment confirming the award.
That issue presents the question whether, in the trial court, Kaura established any of the statutory grounds for vacating the award. The only ground raised in the trial court was that misconduct of the arbitrator substantially prejudiced Kaura's rights. (§ 1286.2, subd. (a)(3).) Kaura's opening brief fails to address that issue. Because it does not address that issue, it fails to demonstrate that Kaura made the necessary showing of misconduct to warrant vacating the arbitration award and fails to establish that the trial court committed any reversible error when it denied Kaura's petition to vacate.
In her reply brief, Kaura asserts her opening brief mentioned that the petition to vacate was based on the arbitrator's failure to rule on Kaura's objection to the declaration of the Kaiser parties' expert, Luce. First, the opening brief contains no separate argument with its own heading raising that point. The cited mention of the failure to rule on Kaura's objections appears only in the procedural history portion of her opening brief. "The purpose of requiring headings and coherent arguments in appellate briefs is 'to lighten the labors of the appellate [courts] by requiring the litigants to present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised, as they read, of the exact question under consideration, instead of being compelled to extricate it from the mass.'" (Opdyk, supra, 34 Cal.App.4th at pp. 1830-1831, fn. 4.) We decline to formulate Kaura's argument for her.
Second, points raised for the first time in a reply brief, unaccompanied by any reason for omitting them from the opening brief, will ordinarily not be considered; such consideration would deprive the respondent of an opportunity to counter the argument. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453; Diamond Springs Lime Co. v. American River Constructors (1971) 16 Cal.App.3d 581, 609.)
Third, "[t]he arbitrator has broad discretion in conducting the hearing and ruling on the admission of evidence" and "is not required to follow the rules of evidence and procedure" applicable in court proceedings. (Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 164; § 1282.2, subds. (c), (d).) Kaura has not demonstrated either that the arbitrator failed to rule on her objections or that a failure to rule on them constituted misconduct for purposes of section 1286.2, subdivision (a)(3).
We note the arbitrator's order on the motion for summary judgment stated the Kaiser parties met their burden of demonstrating there was no triable issue of material fact on the elements of causation and damages, relying "in particular" on the paragraphs of the Luce declaration to which Kaura objected. He then found the facts in the Kaiser parties' separate statement were "supported by competent, admissible evidence." By inference, he found the evidence in the Luce declaration admissible and overruled Kaura's objections to it.
To the extent the second argument in Kaura's reply brief may be an attempt to resurrect her trial court argument that the arbitrator committed misconduct by ignoring the Hankins' declaration, the argument is also forfeited by failure to raise it in her opening brief.
For all of these reasons, we conclude Kaura has failed to establish any prejudicial error in the trial court's decision to deny the petition to vacate the arbitration award.
DISPOSITION
The judgment is affirmed. Respondents are entitled to their costs on appeal.
/s/_________
HILL, P.J. WE CONCUR: /s/_________
GOMES, J. /s/_________
SMITH, J.