Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. 1-05-CV041676
Mihara, J.
Alexa Nolder, the successor-in-interest to deceased plaintiff Leisa Lewis, challenges the superior court’s denial of Lewis’s petition to vacate an arbitration award in favor of defendants. Lewis claims that the arbitration award should have been vacated because the neutral arbitrator submitted an inaccurate disclosure and failed to disclose that his son had previously been employed as an attorney at the law firm that was representing defendants in the arbitration. We conclude that the neutral arbitrator was not required to disclose this information and that this information and the neutral arbitrator’s inaccurate disclosure (that no member of his family had ever been associated with an attorney for a party) did not create a basis for vacating the arbitration award. Hence, we affirm the superior court’s judgment confirming the arbitration award.
Lewis died while the appeal was pending. We will refer to appellant as Lewis for convenience.
I. Background
Lewis and defendants were parties to an agreement which required the arbitration of disputes between them. The arbitration agreement provided that neutral arbitrators would “comply with the Ethics Standards for Neutral Arbitrators in Contractual Arbitration, Division VI of the Appendix to the California Rules of Court.”
Lewis commenced arbitration proceedings on her medical malpractice claims against defendants. Defendants were represented by Robert Luft, an attorney at the San Jose office of the law firm Ropers, Majeski, Kohn & Bentley (Ropers). Lewis was provided with a list of 14 prospective neutral arbitrators. She and defendants were each allowed to strike four of the names on the list and were then required to rank the remaining names. Retired Judge William Giffen was one of the prospective neutral arbitrators on the list. Lewis did not strike Judge Giffen and ranked him as an acceptable neutral arbitrator.
In December 2002, Judge Giffen was selected as the neutral arbitrator. He subsequently provided a disclosure statement to the parties “[p]ursuant to the California Code of Civil Procedure 1281.9.” This disclosure statement contained the following statements: (1) “I am not nor are any members of my family related to the parties of this arbitration, nor are we or ever have been a party or have had a significant personal relationship with any party or lawyer for any party[;]” (2) “I have not nor have any members of my family had a professional relationship with a party or lawyer for a party[;]” and (3) “There is nothing which would interfere with my ability to be impartial to this arbitration.”
The arbitration hearing was held in October 2004 at Ropers’s San Jose office. Judge Giffen and defendants’ party arbitrator found in favor of defendant, and Lewis’s party arbitrator dissented.
In February 2005, after the issuance of the arbitration award, Lewis’s attorney learned that Judge Giffen’s son had previously been employed by Ropers. Jon Giffen had been employed as an associate attorney at Ropers’s San Francisco office from October 1993 to January 1996.
Lewis filed a petition to vacate the arbitration award on the ground that Judge Giffen’s “affirmatively misl[eading]” disclosure and his failure to disclose that his son had previously been employed by defendants’ attorneys had deprived her of the opportunity to disqualify Judge Giffen from serving as the neutral arbitrator.
Defendants opposed Lewis’s petition, and they submitted Judge Giffen’s declaration in support of their opposition. Judge Giffen declared that his disclosure “was incorrect” in stating that no member of his family had had a professional relationship with any lawyer for a party in the arbitration. His son, Jon Giffen, had once worked for Ropers. Judge Giffen stated that he “had genuinely forgotten” about his son’s former employment because it had occurred so long ago. He asserted that his son “has not maintained any sort of relationship with the Ropers firm.”
The superior court denied Lewis’s petition to vacate the arbitration decision. It noted that “[n]either California Code of Civil Procedure Section 1281.9 nor the Ethics Standards for Neutral Arbitrators required Judge Giffen to disclose his son’s relationship with Ropers.” The court considered whether “a person aware of the facts might reasonably entertain a doubt that the [arbitrator] would be able to be impartial” and concluded that “a reasonable person would not entertain a doubt about impartiality.”
Defendants filed a petition to confirm the arbitration award, and the superior court issued an order and thereafter a judgment confirming the arbitration award. Lewis filed a timely notice of appeal from the judgment.
II. Analysis
“The exclusive grounds for vacating [a non-judicial] arbitration award are those listed in section 1286.2.” (Luster v. Collins (1993) 15 Cal.App.4th 1338, 1345.) “The court shall vacate the [arbitration] award if the court determines any of the following: [¶] (1) The award was procured by corruption, fraud or other undue means. [¶] (2) There was corruption in any of the arbitrators. [¶] (3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator. [¶] . . . (6) An arbitrator making the award either: (A) failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware; or (B) was subject to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely demand to disqualify himself or herself as required by that provision.” (Code Civ. Proc., § 1286.2, subd. (a).)
The applicable disclosure requirements here were those set forth in the California Rules of Court’s Ethics Standards for Neutral Arbitrators in Contractual Arbitration (Ethics Standards). Ethics Standard 7 provides: “A person who is nominated or appointed as an arbitrator must disclose all matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed arbitrator would be able to be impartial, including [that] . . . The arbitrator was associated in the private practice of law with a lawyer in the arbitration within the last two years . . . The arbitrator or a member of the arbitrator’s immediate family is or, within the preceding two years, was an employee of or an expert witness or a consultant for a lawyer in the arbitration . . . .” The Ethics Standards define “Member of the arbitrator’s immediate family” as “the arbitrator’s spouse or domestic partner and any minor child living in the arbitrator’s household.” (Ethics Standard 2.) Although many other disclosures are required, none of them are pertinent here.
A neutral arbitrator is required to “disqualify himself or herself upon the demand of any party made before the conclusion of the arbitration proceeding” if “any ground specified in [Code of Civil Procedure] Section 170.1 exists.” (Code Civ. Proc., § 1281.91, subd. (d).) One of the grounds specified in Code of Civil Procedure section 170.1 is “[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” (§ 170.1, subd. (a)(6)(A)(iii).)
All statutory references are to the Code of Civil Procedure unless otherwise noted.
The superior court found that Judge Giffen was not required to disclose the fact that his son had previously been employed by Ropers, and that a reasonable person aware of that fact and of Judge Giffen’s inaccurate representation on that subject would not doubt Judge Giffen’s ability to be impartial. We exercise de novo review on the question of what disclosures were required and the question of whether a reasonable person aware of the facts would doubt Judge Giffen’s impartiality, but we defer to the superior court on any disputed issues of fact. (Reed v. Mutual Service Corp. (2003) 106 Cal.App.4th 1359, 1365; Michael v. Aetna Life & Casualty Ins. Co. (2001) 88 Cal.App.4th 925, 933.)
The Ethics Standards do not explicitly require a neutral arbitrator to disclose that his adult son was employed, more than six years previously, by an attorney for a party to the arbitration. Indeed, a neutral arbitrator is only required to disclose his own prior association with an attorney for a party if that association occurred within the previous two years. And the only Ethics Standards that concern the prior employment of a neutral arbitrator’s children are limited to “minor” children living in the neutral arbitrator’s household, and employment in the previous two years. It is undisputed that Judge Giffen’s adult son did not live in his household and that his employment by Ropers ended more than six years before Judge Giffen’s disclosures.
The only possible basis for requiring Judge Giffen to disclose his son’s prior employment was the catch-all requirement that a neutral arbitrator disclose any fact “that could cause a person aware of the facts to reasonably entertain a doubt that the proposed arbitrator would be able to be impartial.” We apply an objective standard: whether an “average person on the street” aware of a particular fact or set of facts might reasonably question the partiality of the arbitrator. (United Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d 97, 104-105.)
We are convinced that the “average person on the street” would not reasonably entertain a doubt about Judge Giffen’s impartiality simply because, six years earlier, his adult son had been employed for two years in a different office of the large law firm that now represented defendants. The mere fact of Judge Giffen’s son’s prior employment did not suggest that Judge Giffen had any feelings, pro or con, about his son’s former employer. The superior court credited Judge Giffen’s declaration that he had actually forgotten about his son’s prior employment, and we must defer to that factual finding. The fact that Judge Giffen did not even remember that his son had previously been employed by Ropers did not raise any inference that could support a doubt about his impartiality. While it is true that Judge Giffen made an inaccurate disclosure, which stated that no member of his family had ever been associated with Ropers, the superior court’s finding that the inaccuracy was due to forgetfulness precludes any inference that Judge Giffen had any nefarious purpose in making this inaccurate disclosure. As Judge Giffen was not required to make any disclosure in this regard, his inaccurate disclosure does not suggest any lack of impartiality, but rather an inaccurate attempt to offer a more complete than required disclosure.
The superior court’s findings that Judge Giffen was not required to disclose this information and that this information and his inaccurate disclosure did not raise any doubt about his impartiality must be upheld. These findings precluded Lewis from establishing any of the grounds for vacating the arbitration award. Consequently, the superior court did not err in denying her petition to vacate the award, and the judgment confirming the award must be affirmed.
III. Disposition
The judgment is affirmed.
WE CONCUR:Bamattre-Manoukian, Acting P.J., Duffy, J.