Opinion
H044035
06-27-2018
LI QIN, Plaintiff and Appellant, v. KAISER FOUNDATION HOSPITALS, ET AL., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. 16-CV-291867)
Li Qin appeals an order denying her petition to vacate an arbitration award. Because none of the situations in which a court is authorized to vacate an arbitration award is present here, we will affirm the order.
I. BACKGROUND
Qin brought a medical malpractice claim in arbitration against Kaiser Foundation Hospitals, under the provision in her Kaiser health plan requiring that any such dispute be resolved by private arbitration. She alleged two unrelated incidents of medical negligence: the misdiagnosis of a fracture in her leg, and a cesarean section procedure that left her with an incisional hernia.
Kaiser asked the arbitrator to summarily adjudicate the case in its favor because there were no disputed factual issues to be resolved at the arbitration hearing. The arbitrator ruled that Kaiser was entitled to summary adjudication of Qin's misdiagnosis claim because it was undisputed that the diagnosis occurred more than a year before the demand for arbitration, so the claim was barred by the statute of limitations. But the arbitrator determined there were disputed facts precluding summary adjudication of the hernia claim: Though Kaiser's expert witness opined that the treatment provided to Qin was not negligent, Qin submitted a declaration from her own medical expert indicating that the treatment fell below the standard of care. Her expert's declaration contained a significant disclaimer, however: "I hereby emphasize that this opinion is based upon information which has been provided to me by the claimant and her husband. I reserve the right to modify this opinion in the event that additional information is brought to my attention."
Before the date of the arbitration hearing, Kaiser moved to dismiss Qin's remaining claim. Kaiser argued that at the time Qin's expert rendered his opinion, he had not reviewed all the relevant medical records and was therefore not sufficiently familiar with the case to provide an expert opinion. In support of the motion, Kaiser submitted a recent email the expert sent to Qin, in which he told her (as foreshadowed by his earlier disclaimer) that he was now unable to testify there was negligence. He stated that after reviewing the records he saw nothing to indicate that Qin ever reported a problem after her cesarean section, which left him "unable to testify that there is evidence that an incisional hernia occurred at a very early post op time."
The arbitrator dismissed the claim, finding Qin had failed to comply with the rules regarding expert witness disclosure by not initially giving the expert the records necessary to assess the case. The arbitrator also found dismissal appropriate because expert medical testimony was required for Qin to prove her claim, and the expert's retraction of his opinion left her without any. The arbitrator further found that Qin and her husband had engaged in obstructive behavior during her deposition and therefore dismissal was warranted as a sanction for abusing the discovery process.
Qin petitioned the Superior Court for an order vacating the arbitration award. She appeals the denial of that petition.
II. DISCUSSION
A. LIMITATIONS ON JUDICIAL REVIEW OF ARBITRATION AWARDS
The role of courts in reviewing arbitration awards is very limited. When parties agree to resolve a dispute by private arbitration, they typically expect the dispute will be resolved outside the judicial system. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9 (Moncharsh).) "The arbitrator's decision should be the end, not the beginning of the dispute. [¶] ... Because the decision to arbitrate grievances evinces the parties' intent to bypass the judicial system and thus avoid potential delays at the trial and appellate levels, arbitral finality is a core component of the parties' agreement to submit to arbitration." (Id. at p. 10.) For that reason, a court has no power to set aside the decision of an arbitrator even when the decision is obviously wrong, either because of a legal error or a mistake of fact. (Royal Alliance Associates, Inc. v. Liebhaber (2016) 2 Cal.App.5th 1092, 1105.) The parties' agreement is that the arbitrator's decision, even if incorrect, will be final. (Moncharsh, at p. 12, citing Griffith Co. v. San Diego College For Women (1955) 45 Cal.2d 501, 515-516.)
The Legislature has mitigated the risk of an erroneous arbitration decision by providing for limited judicial review "in circumstances involving serious problems with the award itself, or with the fairness of the arbitration process." (Moncharsh, supra, 3 Cal.4th at p. 12.) The grounds for vacating an arbitration award are set forth in Code of Civil Procedure, section 1286.2, subdivision (a), which provides that a court shall vacate an award if (1) it was procured by corruption, fraud, or other undue means; (2) there was corruption in the arbitrator; (3) a party was prejudiced by the arbitrator's misconduct; (4) the arbitrator exceeded his or her powers; (5) a party was prejudiced by the arbitrator's refusal to postpone the hearing, refusal to hear evidence, or other conduct contrary to law; or (6) the arbitrator failed to disclose a conflict of interest. Those are the only circumstances under which a court is authorized to vacate an arbitration award. (Moncharsh, at p. 33.) We review de novo a trial court's order denying a petition to vacate an arbitration award, though we defer to the trial court's findings regarding any disputed facts so long as they are supported by substantial evidence. (Maaso v. Signer (2012) 203 Cal.App.4th 362, 371.)
B. NO GROUNDS FOR VACATING AN ARBITRATION AWARD ARE PRESENT
Qin, who is representing herself on appeal (as she did below), primarily contends that the arbitrator's decision was incorrect because her case is meritorious. That is not a basis for a court to vacate an arbitration award. (See Moncharsh, supra, 3 Cal.4th at p. 12.) But she also asserts that the arbitration was corrupt and the procedure unfair, circumstances which potentially could allow for the award to be vacated. Though Qin has not specified the precise legal grounds on which she relies, we analyze her arguments under the framework of section 1286.2, subdivision (a) (unspecified statutory references are to the Code of Civil Procedure), since that statute provides her only possible avenue for relief.
Qin's failure to provide legal authority to support her arguments is a violation of the California Rules of Court. (Cal. Rules of Court, rule 8.204(a)(1)(B).) So too is her failure to support most of the factual assertions in her brief with citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).) Not being represented by an attorney does not excuse a party from complying with the rules. (Nowusa v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) We will nonetheless exercise our discretion to reach the merits of Qin's contentions. (Cal. Rules of Court, rule 8.204(e)(2)(C).) But her disregard of the rules could be deemed a waiver of her arguments on appeal, and provides an alternative ground for affirmance.
Qin asserts that the arbitrator's ruling summarily adjudicating the claim for misdiagnosis of her leg fracture was based on false evidence. We construe that as a contention under section 1286.2, subdivision (a)(1) that the arbitration award was based on corruption or fraud. We note that it is permissible for an arbitrator to employ a summary adjudication procedure for resolving claims with no disputed material factual issues. (Schlessinger v. Rosenfeld, Meyer & Susman (1995) 40 Cal.App.4th 1096, 1104.) The arbitrator here determined it was undisputed that Qin's misdiagnosis claim was time barred because her demand for arbitration was submitted more than one year after the diagnosis in question. Qin asserts that Kaiser's attorneys "fabricated a false [demand for arbitration] via some computer technic [sic]," presumably a demand showing a later filing date. But nothing in the record supports that assertion, and the burden is on Qin as the party attacking the arbitration award to show why it should be vacated. (Lopes v. Millsap (1992) 6 Cal.App.4th 1679, 1685.) Since the record does not support the contention, we must reject it.
Qin also contends that the award in Kaiser's favor resulted from improper ex parte communication between its lawyers and the arbitrator. This argument too can be construed as a contention that the award was procured by fraud or corruption (§ 1286.2, subd. (a)(1).) The record does contain several emails between Kaiser's attorneys and the arbitrator, but the messages predating the arbitrator's decision relate only to scheduling various hearings. While it would have been advisable for counsel to copy Qin on every communication with the arbitrator to avoid accusations of improper ex parte contact, we see nothing in the emails to indicate the arbitration award was obtained by fraud, corruption, or other improper means.
Qin argues that the result of the arbitration was essentially preordained because the arbitrator was biased in Kaiser's favor, given that, according to Qin, the arbitrator receives the majority of her income from arbitrating claims brought against Kaiser. We treat that as a contention under section 1286.2, subdivision (a)(2) that there was corruption in the arbitrator. In pressing the point, Qin asserts that Kaiser pays its lawyers and the arbitrator premium salaries "like a tyrannical master raises and feeds two teams of dogs" for protection. The argument is not without eloquence. But again, Qin provides no facts to support it. There is nothing in the record showing that the arbitrator receives most of her income from Kaiser, so the premise for the bias argument fails. Qin also asserts as evidence of bias that the arbitrator denied every motion she brought. Contrary to that assertion, the record reveals that the arbitrator granted at least two of her motions (to compel certain depositions).
Qin contends that the arbitrator improperly dismissed her hernia claim. We construe that as a contention under section 1286.2, subdivision (a)(4) that the arbitrator exceeded her powers. The arbitrator's order dismissing the claim was based on a failure to comply with the rules governing expert witness disclosure, a lack of any medical expert testimony to support the claim, and disruptive conduct by Qin during her deposition amounting to an abuse of the discovery process. Qin argues that the dismissal was legally incorrect and that the facts do not support the decision. She asserts, for instance, that her expert submitted to a deposition and that she otherwise complied with the applicable discovery rules. But an arbitrator does not exceed her powers by making a decision that is legally or factually wrong. (Moncharsh, supra, 3 Cal.4th at p. 28.) And an arbitrator generally has the power to order any relief that can be ordered by a court (Advanced Micro Devices, Inc. v. Intel. Corp. (1994) 9 Cal.4th 362, 384), including discovery sanctions. (Alexander v. Blue Cross of California (2001) 88 Cal.App.4th 1082, 1089.) Qin has not shown that the arbitrator exceeded her powers by dismissing the hernia claim.
Qin argues that the award should be vacated because Kaiser did not obtain her informed consent as required by law before performing a surgical procedure, and because her deposition was "torturing and oppressive" and should have resulted in discovery sanctions against Kaiser's counsel. Even if true, neither of those circumstances would be a basis to vacate an arbitration award. (See § 1286.2, subd. (a).) Qin argues in passing that her constitutional right to due process was violated by the arbitration. But since an arbitration award is the product of a private arrangement, not state action, arbitration proceedings do not implicate the right to due process. (Rifkind & Sterling, Inc. v. Rifkind (1994) 28 Cal.App.4th 1282, 1292.)
C. QIN'S MOTIONS ARE DENIED
Qin filed various motions in this court that we ordered considered with the merits of her appeal. She moved to compel Kaiser to produce documents in response to a discovery request, but discovery is not allowed while an appeal is pending unless necessary to preserve evidence and then only after obtaining an order from the trial court. (Code Civ. Proc., §§ 2036.010, 2036.030). And a motion to compel discovery responses can only be brought in the trial court. We therefore deny the motion.
Qin moved to augment the record on appeal to include certain emails attached to the motion and other documents, such as the arbitration agreement, which she does not have but asserts are in Kaiser's possession. Some of the emails attached to the motion are already contained in the record, as is the arbitration agreement. The other identified documents were not before the trial court. For those reasons, the motion to augment is denied.
Qin also filed a document entitled "Appeallant's [sic] Petition for the Hearing of Her Case of Appeal," which appears to have been prompted by a misperception that our order deferring her motions for consideration with the appeal was an order dismissing the appeal. She asks that this court not dismiss the appeal without first "schedul[ing] a hearing." We have not dismissed the appeal, and we heard oral argument before the matter was submitted and decided, so that request is moot.
III. DISPOSITION
The order denying the petition to vacate the arbitration award is affirmed. Respondents shall recover costs on appeal.
/s/_________
Grover, J.
WE CONCUR:
/s/_________
Premo, Acting P. J. /s/_________
Elia, J.