Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BC312536, James R. Dunn, Judge.
Eisenberg & Associates, Michael B. Eisenberg; Law Offices of David Himelson and David I. Himelson for Plaintiff and Appellant.
Gordon & Rees, Roger M. Mansukhani, Christopher B. Cato and Eric M. Volkert for Defendant and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Plaintiff Katrina Vargas appeals from a January 16, 2007 judgment confirming award of arbitrator in favor of defendant Cedars-Sinai Medical Center. At issue is whether the arbitration award should have been vacated because the arbitrator did not timely disclose he had been treated at defendant’s facility. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff brought this action against defendant alleging physical disability discrimination and failure to accommodate. On September 14, 2004, the trial court issued an order granting defendant’s motion to compel binding arbitration before the American Arbitration Association (AAA). Plaintiff vetoed one potential arbitrator when she disclosed that she had given birth to all of her children at defendant.
Ultimately, a retired judge, the honorable George M. Dell, was selected as the arbitrator for the case. In his disclosure letter, Judge Dell stated the following:
“1. There is no reason I cannot serve fairly and impartially as neutral arbitrator.
“2. As to the attorneys, parties and identified witnesses, I am acquainted with none of them, nor I am aware of any matters which should cause disqualification.
“3. I have performed a search with my Abacus computer software and set forth the following matter in which Cedars-Sinai was a party: Kushner v. Cedars-Sinai, in which I was a member of a three-person arbitration panel, decided in November 1998. I found no ‘hits’ relevant to arbitrations now pending or decided within the past five years; there have been no matters in which I served as mediator or in any other alternative dispute resolution capacity during the period January 1, 2002, to date.”
Defendant filed a motion for summary judgment or summary adjudication. Plaintiff filed opposition paperwork. The motion for summary judgment was heard on July 31, 2006. On August 2, 2006, the arbitrator issued an arbitration award granting defendant summary judgment. The arbitrator faxed it to AAA on August 4, and AAA faxed the arbitrator’s award to plaintiff on August 7. The award indicated that in finding plaintiff lacked substantial evidence to support her claims and establish a triable issue of material fact, the arbitrator also reflected and concluded that summary judgment, although a rare remedy, was appropriate in this case.
Plaintiff on August 21, 2006 raised an objection to AAA based upon the arbitrator’s comment at the hearing that he had been treated at defendant. On August 31, 2006, AAA acknowledged receipt of plaintiff’s letter and indicated that a request to vacate was not within its authority.
Defendant filed its petition to confirm the arbitration award on October 6, 2006 and served plaintiff by mail. Plaintiff filed a motion to vacate the award on November 3, 2006.
In support of plaintiff’s motion, plaintiff’s counsel recalled that during the hearing on the motion for summary judgment, the arbitrator stated that he “treats regularly” with defendant and they have “generally treated him well,” although he is aware that “they can make mistakes.” Defendant’s counsel recalled that near the outset of the litigation, during one of the many telephone conferences held with the arbitrator, the arbitrator made a comment that he had been treated at defendant’s facility. Defendant’s counsel also recalled at the beginning of the hearing on the motion for summary judgment, the arbitrator again mentioned that he had been treated at defendant’s facility. Defendant’s counsel did not recall any reference by the arbitrator that he was treated “regularly” at defendant’s facility. Defendant’s counsel recalled the arbitrator making this brief comment regarding treatment in the context of saying something to the effect that he had no knowledge of or experience with defendant’s practices as an employer and understood that, as with any employer, it was possible that it could act inappropriately with respect to an employee. Defendant’s counsel also recalled that the arbitrator made some comments generally to the effect that he had not met plaintiff, he understood her allegations were serious, and he would carefully consider all the evidence. Defendant’s counsel also indicated that the arbitrator stated that he did not have any preconceived beliefs that would affect his decision and that he would fairly evaluate the case in reaching a decision.
On December 5, 2006, the trial court granted defendant’s petition to confirm the arbitration award and denied plaintiff’s motion to vacate. The court found that plaintiff had not established sufficient evidence necessary to vacate the arbitrator’s award.
DISCUSSION
Under Code of Civil Procedure section 1286.2, subdivision (a)(6), the arbitrator’s failure to disclose a ground for disqualification is a basis for vacating an arbitration award. The right to obtain vacation of an arbitration award may be waived under certain circumstances, however. Defendant contends that under the circumstances of the instant case, we should find waiver. We agree.
In Fininen v. Barlow (2006) 142 Cal.App.4th 185, defendant sought to vacate an arbitration award based on the arbitrator’s failure to disclose his participation in a previous mediation involving defendant. The court held that defendant waived his right to vacation of the award, in that he participated in the nondisclosed case, had access to his files concerning the nondisclosed case, recognized the arbitrator during the arbitration proceedings, failed to request a continuance to investigate the arbitrator, consented to proceed with the arbitration after the arbitrator partially described the nondisclosed case, and did not object to the arbitrator until after the issuance of the arbitration award in favor of plaintiffs. (Id. at pp. 190-191.)
The situation here, while not identical, is similar in key respects. Plaintiff’s counsel had access to his files containing Judge Dell’s disclosure statement, which did not mention having been treated at defendant’s facility. Counsel was present at the arbitration proceedings when Judge Dell mentioned having been treated at defendant’s facility. Counsel continued to participate in the proceedings, during which he made no mention of the discrepancy and did not object to Judge Dell serving as the arbitrator or otherwise take any steps indicating that there was an issue of nondisclosure. It was only after Judge Dell issued an arbitration award in defendant’s favor that plaintiff objected to Judge Dell’s serving as arbitrator based on his nondisclosure.
We acknowledge that the trial court found no waiver, explaining that the attorney who was present at the arbitration, “Mr. Himelson did not disclose the statement made by Judge Dell at the summary judgment hearing to principal plaintiff’s counsel Mr. Eisenberg until after the award had been received from the AAA.” This finding was incorrect as a matter of law, however.
It is well established that “[u]nder the imputed knowledge theory, knowledge by any member of a law firm is imputed to all attorneys in the firm . . . .” (Derivi Construction & Architecture, Inc. v. Wong (2004) 118 Cal.App.4th 1268, 1273 [attorney disqualification]; Frazier v. Superior Court (2002) 97 Cal.App.4th 23, 30 [same].) Mr. Himelson’s knowledge of Judge Dell’s statements at the hearing was imputed to Mr. Eisenberg, just as Mr. Eisenberg’s knowledge of the contents of the client files was imputed to Mr. Himelson. If the rule were otherwise, attorneys could rely on their own failure to communicate with one another to obtain what amounts to “offer[ing] arbitral parties unfair ‘second bite[s] at the apple’” (Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 836, fn. 10) upon receipt of an unfavorable arbitration award. This is not permissible. (See, e.g., Pour Le Bebe, Inc. v. Guess? Inc. (2003) 112 Cal.App.4th 810, 831-832.)
Plaintiff’s counsel thus had knowledge of both Judge Dell’s disclosure statement and his statements during the arbitration proceedings but did not object to the failure to disclose until after receiving the unfavorable arbitration award. This justifies a finding of waiver. (Fininen v. Barlow, supra, 142 Cal.App.4th at pp. 190-191.)
We need not address the other bases of the trial court’s ruling. As a general rule, we will affirm a judgment if it is correct in law, even if made on an incorrect ground or for an erroneous reason. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19; Clothesrigger, Inc. v. GTE Corp. (1987) 191 Cal.App.3d 605, 611; Constance B. v. State of California (1986) 178 Cal.App.3d 200, 211.)
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, Acting P. J., VOGEL, J.