Filed 8/25/14




                            CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIFTH APPELLATE DISTRICT


UNITED HEALTH CENTERS OF THE SAN                                     F067763
JOAQUIN VALLEY, INC.
                                                         (Super. Ct. No. 11CECG02953)
        Petitioner,
                                                                   OPINION
SUPERIOR COURT OF FRESNO COUNTY,

        Respondent;

JENNIFER VRADENBURG-HAWORTH,

        Real Party in Interest.



ORIGINAL PROCEEDINGS; petition for writ of mandate. Mark W. Snauffer, Judge.
        Motschiedler, Michaelides, Wishon, Brewer and Ryan, Russell K. Ryan for
Petitioner.
        No appearance for Respondent.
        Michael J.F. Smith and John L. Migliazzo for Real Party in Interest.
                                           -ooOoo-
        The trial court vacated an arbitration award issued in favor of defendant United
Health Centers of the San Joaquin Valley, Inc. (UHC) in a wrongful termination case
brought against it by its former employee, plaintiff Jennifer Vradenburg-Haworth. The
basis of the trial court’s action was that the neutral arbitrator failed to comply with the
mandatory disclosure requirements of Code of Civil Procedure section 1281.91 and the
ethics standards for arbitrators. Although UHC presented evidence from which the trial
court could find that Vradenburg-Haworth’s counsel forfeited the right to seek to have
the award vacated on this basis, as that principle is explained in Dornbirer v. Kaiser
Foundation Health Plan, Inc. (2008) 166 Cal.App.4th 831 (Dornbirer), the trial court
determined that, pursuant to section 1281.85, subdivision (c) (hereafter 1281.85(c)), an
arbitrator’s mandatory disclosure obligations cannot be waived, and refused to consider
Dornbirer. The question before us is whether the forfeiture principles stated in
Dornbirer remain viable after the enactment of section 1281.85(c). We conclude that
they do. Accordingly, we grant UHC’s petition for writ of mandate and reverse the trial
court’s order vacating the arbitration award.
                   FACTUAL AND PROCEDURAL BACKGROUND
       UHC hired Jennifer Vradenburg-Haworth as a part-time physician in 2005. After
UHC terminated her employment in September 2010, she filed an action against UHC for
retaliation and wrongful termination in violation of public policy. UHC moved to compel
arbitration pursuant to an arbitration provision in Vradenburg-Haworth’s employment
contract. The trial court granted the motion on April 10, 2012.2
       UHC’s counsel, Russell K. Ryan, recommended to Vradenburg-Haworth’s
counsel, Michael J.F. Smith, that they select either Retired Judge Howard Broadman or
Retired Justice Nickolas Dibiaso as the arbitrator. Ryan further advised Smith that he
had used both arbitrators on a number of occasions and asked Smith to let him know if he
would agree to either one, or if he proposed an alternative. Eventually, Smith agreed to
have Judge Broadman arbitrate the case, and a stipulation and order was filed in which
the parties agreed to refer the matter to him.

       1   Undesignated statutory references are to the Code of Civil Procedure.
       2   Subsequent references to dates are to dates in 2012, unless otherwise stated.



                                                 2.
       The arbitration hearing was held before Judge Broadman from October 15 to
October 18. The parties submitted post-arbitration briefs. On December 15, Judge
Broadman issued written findings and judgment in UHC’s favor. Judge Broadman found
that UHC terminated Vradenburg-Haworth’s position due to the company’s financial
distress, the impracticality of employing part-time physicians, and personnel issues
within the clinic where she worked, and her termination was proper because she was an
at-will employee. He found there was no basis for her claims of retaliation and wrongful
termination in violation of public policy.
       UHC filed a petition to confirm the arbitration award on January 4, 2013. In
response, Vradenburg-Haworth asked the trial court to vacate the arbitration award
pursuant to section 1285.2, on the ground that Judge Broadman failed to comply with the
mandatory disclosure requirements of sections 1281.9 and 1281.85. She also asked the
trial court to vacate the award pursuant to section 1286.2, subdivision (a)(4), on the
ground Judge Broadman exceeded his powers when he made clear legal errors in his
decision.
       In Smith’s declaration in support of the request to vacate, he stated that before
selecting Judge Broadman as the arbitrator, he knew Judge Broadman “as a mediator”
and Judge Broadman “was once agreed upon as an arbitrator in another case” which
settled without a hearing. Smith declared that after Judge Broadman’s appointment on
May 17, he did not receive any disclosure from him as required by sections 1281.9 et seq.
Smith trusted Judge Broadman because of his experience as a judge and “our experience
using him as a mediator.” Smith further declared: “We have used him as a mediator,
occasionally. When I did not receive any CCP 1281.9 disclosure from him, I trusted that
this meant he had nothing to disclose.”
       Smith explained that after he received Judge Broadman’s award, he felt his client
was not given a fair hearing. He then “went looking for any disclosure from Mr.
Broadman. None existed in our file. We have a very diligent file maintenance clerk in

                                             3.
our office, who keeps all correspondence in all our cases filed carefully. She searched as
well. [Smith’s associate] Mr. [John] Migliazzo, who has worked on this case from its
beginning, also searched. No such letter was received in our office.” Neither Smith nor
Migliazzo found any disclosure from Judge Broadman, or his office, in their e-mail
inboxes, and no faxed disclosure was received in the office.
       Migliazzo asked Judge Broadman, in a December 28 letter and e-mail, for a
complete disclosure of any prior engagements Judge Broadman may have had with UHC
or Ryan, as Smith’s office had not received a disclosure. As of January 8, 2013, Smith
and Migliazzo had not received a disclosure letter from Judge Broadman. They did have
an e-mail exchange with him, in which Judge Broadman asked if they wanted a
conference call, but Smith responded that he only wanted a complete and accurate
disclosure.
       After receiving copies of Smith’s and Migliazzo’s correspondence to Judge
Broadman, Ryan sent Smith and Judge Broadman an e-mail advising that Judge
Broadman submitted a disclosure form in a June 28 letter, which Ryan supplemented
with a July 9 letter, both of which were submitted to Smith’s office. Ryan attached
copies of both letters to the e-mail. Ryan also advised that during the two years before
Judge Broadman’s appointment as arbitrator in this case, Judge Broadman served as a
mediator in two cases in which Ryan was involved, and more than two years before, both
Smith and he had selected Judge Broadman as a mediator in another case, and Judge
Broadman served as a special master in consolidated cases in which Ryan represented
one of the parties.
       Judge Broadman’s three page letter of June 28, which is addressed to both Smith
and Ryan, was characterized as a disclosure statement intended to comply with sections
170.1 and 1281.9, the disclosure requirements for arbitrators mandated by Standard 7 of
the Ethics Standards for Arbitrators found in the appendix to the California Rules of
Court, and any other statutes, rules and standards that may require disclosures or

                                            4.
disqualifications by arbitrators in proceedings such as the one at issue. Judge Broadman
stated that he had not served as an arbiter in any matters involving Smith or his office, or
either of the parties. He had, however, served as an arbiter in two matters involving Ryan
or his law firm. For these two matters, Judge Broadman identified the case name, the
attorney for each plaintiff and defendant, and the outcome, i.e., whether he ruled in favor
of the plaintiff or defendant. For one matter, Judge Broadman stated the date was “[n]ot
recorded,” but the other matter took place in July 2007. Ryan’s law firm represented the
prevailing party in each arbitration. The disclosures did not include the amount of
monetary damages awarded as required by section 1281.9; instead, Judge Broadman
explained he does not disclose the exact amount of any awards due to his “perceived duty
to maintain confidentiality,” and invited the attorneys to contact either or both sides of
the dispute for that information.
         Due to a “previous failure on [his] part to maintain appropriate records,” Judge
Broadman asked the parties to advise him if they knew of any cases in which he had
served as an arbitrator so he could amend the disclosure. He also stated the disclosure
did not include mediations which may have been conducted with the parties’ attorneys
because his “system” did not “easily afford this information[.]” He was willing,
however, to try to locate the mediated cases if either party requested a complete
disclosure of them; if no request was made any further disclosure was waived. The letter
further advised that although Judge Broadman did not have current arrangements with
any party concerning prospective employment, he would entertain offers from the parties
and their counsel while the arbitration was pending for employment as a dispute
resolution neutral in other cases. He was not participating in, and had not participated in
within the last two years, discussions regarding prospective employment or service with a
party.
         Ryan’s July 9 letter informed Broadman and Smith that he had received Judge
Broadman’s June 28 correspondence constituting his disclosure statement in the case.

                                              5.
Ryan advised them that Judge Broadman (1) had served as an arbitrator in one case in
which Ryan was involved, which settled prior to the arbitration hearing although Judge
Broadman denied a summary judgment motion brought by Ryan’s client, and (2) had
been appointed the arbitrator in another case scheduled for arbitration in September 2007,
in which Ryan represented the plaintiff, which settled on the first day of the arbitration
with Judge Broadman’s assistance.
       In Smith’s declaration in support of the request to vacate, he stated that Judge
Broadman should have disclosed the four matters Ryan revealed in his July 9 letter and
January 2, 2013 e-mail. Smith also was aware of one engagement in which “we” retained
Judge Broadman as an arbitrator, which settled before a hearing, and one mediation
where “we” hired him as a mediator, which had to be rescheduled. Smith further
declared that “we did not receive information that might well have caused us to disqualify
[Judge] Broadman as an arbitrator[,]” and they still did not know how many mediations
Judge Broadman had conducted for Ryan or his law firm in the two years before his
appointment in the present case, the amount of monetary awards involved, or whether
they had discussed new or additional work while this matter was pending.
       Vradenburg-Haworth argued the award must be vacated pursuant to section
1286.2, subdivision (a)(6) because Judge Broadman refused to follow the mandatory
disclosure requirements of the Judicial Council’s ethic standards for arbitrators, which are
nonnegotiable and cannot be waived, and failed to serve her attorney with a disclosure.
She asserted Judge Broadman’s purported June 28 disclosure was grossly inadequate as
(1) Judge Broadman admitted he does not keep accurate or appropriate records, (2) he
attempted to waive his statutory compliance obligation, (3) the disclosure did not include
the four matters Ryan revealed or the two matters of which Smith was aware, which were
required to be disclosed, and (4) it did not disclose any discussions of prospective
employment.



                                             6.
       In reply, UHC argued Vradenburg-Haworth could not in good faith argue the
award should be vacated due to Judge Broadman’s purported failure to make the
disclosures required by section 1281.9 because (1) she never served a notice of
disqualification based on Judge Broadman’s failure to serve a timely disclosure, as
provided by section 1281.91; (2) Judge Broadman made the disclosure required by
section 1281.9 and, even if Smith did not receive the disclosure statement, he was put on
notice such a statement existed via Ryan’s July 9 letter which specifically referenced the
statement and disclosed the existence of two prior arbitrations involving Judge
Broadman; (3) the disclosure statement substantially complied with section 1281.9 and
made no material representations or omissions that would warrant disqualification; and
(4) Smith knew of Judge Broadman’s prior engagements with UHC’s counsel, yet chose
not to serve a notice of disqualification. UHC further argued Judge Broadman did not
commit legal error in deciding in its favor.
       In support of it opposition, UHC submitted the declaration of Judge Broadman’s
assistant, Karen Kimball, in which she stated she mailed the disclosure statement to
counsel for the parties at their respective addresses on June 28, and on or after July 9,
Judge Broadman gave her a copy of Ryan’s July 9 letter to file. Ryan stated in his
declaration accompanying the opposition that, to his best recollection, Judge Broadman
was advised he was appointed the arbitrator sometime in mid-June. Ryan further stated
he received Judge Broadman’s June 28 disclosure statement within a day or two of its
date and he then prepared his July 9 letter, which was sent by e-mail and regular mail to
both Judge Broadman and Smith. According to Ryan, at the time the disclosure
statement was served “there were ‘no current arrangement[s] concerning prospective
employment or other compensated service as a dispute resolution neutral’” between
Judge Broadman and himself or his firm, or any other matter “‘that could cause a person
aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator
would be able to be impartial.’”

                                               7.
       Ryan was surprised to see Migliazzo’s December 28 correspondence because he
knew Judge Broadman had mailed a disclosure statement in June. He followed up with
his January 2, 2013 e-mail, attaching a copy of the disclosure statement and his July 9
correspondence. Ryan reviewed his files to see if any information was missing and noted
there were two mediations he was involved in within the past two years with Judge
Broadman, which he revealed in his e-mail to Smith.
       After oral argument on the petitions, the trial court took the matter under
submission. On June 14, 2013, it issued a written ruling granting the motion to vacate
and denying the petition to confirm. The trial court found that the omission of
information in Judge Broadman’s disclosure statement, including his admissions that he
would not disclose arbitration awards and could not readily disclose mediations, required
the award be vacated because the statement fell short of what was legally required.
       In so finding, the trial court rejected UHC’s contention that any right to vacate the
award had been waived since Smith was aware of the relationship between Judge
Broadman and Ryan and his firm before the arbitration hearing, yet did nothing until after
the award was made. The trial court refused to follow the case UHC relied on,
Dornbirer, supra, 166 Cal.App.4th 831, in which the appellate court held that the
statutory scheme does not require an arbitration award be vacated when the arbitrator has
disclosed the grounds for disqualification generally, but has not provided all of the
specific details required by section 1281.9, and the parties nevertheless agreed to proceed
with the arbitration. (Dornbirer, supra, 166 Cal.App.4th at p. 846.) The trial court
determined the Dornbirer decision violated the rules of statutory construction and was
contrary to section 1281.85, subdivision (c), which provides that the ethics requirements
and standards applicable to arbitrators “are nonnegotiable and shall not be waived.” The
trial court did not make any factual findings and declined to address the other issues
presented by the parties as they were moot.



                                              8.
       UHC petitioned this court for a writ of mandate. We issued an alternative writ
directing the trial court to either vacate its order granting the petition to vacate the
arbitration award and issue an order denying the petition, or show cause why the required
relief should not issue. The superior court reviewed and reconsidered its ruling, but
declined to vacate or reverse it.
                                        DISCUSSION
       UHC contends the trial court erred in finding that Judge Broadman’s failure to
comply with the statutory disclosure requirements compelled vacatur of the arbitration
award because an arbitrator’s failure to comply does not automatically require vacating
the arbitration award. Instead, UHC argues, the court must consider whether the party
seeking to vacate the award was aware of, or knew about, the deficiencies in the
arbitrator’s disclosure, but waited to inquire further or challenge the arbitrator until after
the award was issued. UHC contends that in this case Smith knew Ryan and his firm had
prior engagements with Judge Broadman before the arbitration was held, yet did nothing,
and Smith’s failure to act precludes vacation of the award on the ground of
nondisclosure.
Review by Petition for Writ of Mandate is Appropriate
       As a threshold matter, we begin with Vradenburg-Haworth’s contention that writ
relief should be denied because UHC has failed to show irreparable harm or that it does
not have any other adequate remedy at law, as the expense of re-arbitrating the case is not
a sufficient basis to claim inadequacy for purposes of writ review. While it is true that
writ review is deemed extraordinary and appellate courts normally are reluctant to grant
it, writ review is appropriate where either (1) the party seeking the writ lacks an adequate
means, such as direct appeal, to obtain relief, (2) the petitioner will suffer harm or
prejudice which cannot be corrected on appeal, or (3) where the petition presents an issue
of first impression that is of general interest to the bench and bar. (Baeza v. Superior
Court (2011) 201 Cal.App.4th 1214, 1221.)

                                               9.
        These are all present here. An order vacating an arbitration award and ordering a
rehearing is not appealable. (Haworth v. Superior Court (2010) 50 Cal.4th 372, 379,
fn. 3 (Haworth).) In the absence of writ review, UHC will be required to fully comply
with the order, submit to a costly and time consuming arbitration, and then seek review
by way of appeal. The cost of having to re-arbitrate the case, coupled with the amount of
time necessary to complete the arbitration, justifies reviewing the order vacating the
arbitration award. (See, e.g., Parada v. Superior Court (2009) 176 Cal.App.4th 1554,
1566-1567.) Finally, the petition presents an issue of first impression, namely the
interpretation of section 1281.85(c), which has not been interpreted previously by the
courts. This is an issue of general interest to parties to arbitrations and their attorneys.
Accordingly, we conclude review by extraordinary writ proceeding is appropriate in this
case.
Standard of Review
        Where the material facts are undisputed, the trial court’s determination whether an
arbitrator failed to make required disclosures is reviewed de novo. (Haworth, supra, 50
Cal.4th at pp. 383, 388).) Where the facts are disputed, “‘[w]e must accept the trial
court’s resolution of disputed facts when supported by substantial evidence; we must
presume the court found every fact and drew every permissible inference necessary to
support its judgment, and defer to its determination of credibility of the witnesses and the
weight of the evidence.’” (Fininen v. Barlow (2006) 142 Cal.App.4th 185, 189-190
(Fininen).) This standard applies to judgments based on affidavits or declarations, as
well as judgments based on oral testimony. (Fininen, supra, 142 Cal.App.4th at p. 189.)
Disclosure Requirements
        In seeking to ensure that a neutral arbitrator serves as an impartial decision maker,
the statutory scheme requires the arbitrator to disclose to the parties any ground for
disqualification. (Haworth, supra, 50 Cal.4th at p. 381.) Within 10 days of receiving
notice of his or her nomination to serve as a neutral arbitrator, the proposed arbitrator is

                                              10.
required to disclose “all matters that could cause a person aware of the facts to reasonably
entertain a doubt that the proposed neutral arbitrator would be able to be impartial.”
(§ 1281.9, subd. (a), (b); Haworth, supra, 50 Cal.4th at p. 381.) Based on these
disclosures, or if no disclosure is made, the parties have the opportunity to disqualify the
proposed neutral arbitrator. (§ 1281.91, subds. (a), (b) & (d); Cal. Rules of Court, Ethics
Stds. for Neutral Arbitrators in Contractual Arbitration (Ethics Standards), std. 10(a);
Haworth, supra, 50 Cal.4th at p. 381.)3 Once an arbitration award is made, section
1286.2, subdivision (a)(6)(A) provides that vacation of the award is required if the




       3  Section 1281.91 provides: “(a) A proposed neutral arbitrator shall be disqualified if he
or she fails to comply with Section 1281.9 and any party entitled to receive the disclosure serves
a notice of disqualification within 15 calendar days after the proposed nominee or appointee fails
to comply with Section 1281.9.
        “(b)(1) If the proposed neutral arbitrator complies with Section 1281.9, the proposed
neutral arbitrator shall be disqualified on the basis of the disclosure statement after any party
entitled to receive the disclosure serves a notice of disqualification within 15 calendar days after
service of the disclosure statement.
        “(2) A party shall have the right to disqualify one court-appointed arbitrator without
cause in any single arbitration, and may petition the court to disqualify a subsequent appointee
only upon a showing of cause.
        “(c) The right of a party to disqualify a proposed neutral arbitrator pursuant to this section
shall be waived if the party fails to serve the notice pursuant to the times set forth in this section,
unless the proposed nominee or appointee makes a material omission or material
misrepresentation in his or her disclosure. Except as provided in subdivision (d), in no event
may a notice of disqualification be given after a hearing of any contested issue of fact relating to
the merits of the claim or after any ruling by the arbitrator regarding any contested matter.
Nothing in this subdivision shall limit the right of a party to vacate an award pursuant to Section
1286.2, or to disqualify an arbitrator pursuant to any other law or statute.
        “(d) If any ground specified in Section 170.1 exists, a neutral arbitrator shall disqualify
himself or herself upon the demand of any party made before the conclusion of the arbitration
proceeding. However, this subdivision does not apply to arbitration proceedings conducted
under a collective bargaining agreement between employers and employees or their respective
representatives.”
        Ethics Standard 10(a) adds that an arbitrator is also disqualified where a party serves a
notice of disqualification (1) after service of notice of the prepared nomination, or (2) after the
party becomes aware that an arbitrator made a material omission or misrepresentation in his or
her disclosure. (Ethics Std. 10(a)(3) & (4).)


                                                 11.
arbitrator “failed to disclose within the time required for disclosure a ground for
disqualification of which the arbitrator was then aware[.]”
       Section 1281.9, subdivision (a) provides a list of potentially disqualifying
information to which the parties are entitled. For example, the arbitrator must disclose
“any ground specified in Section 170.1 for disqualification of a judge,” as well as
“matters required to be disclosed by the ethics standards for neutral arbitrators adopted by
the Judicial Council pursuant to this chapter.” (§ 1281.9, subd. (a)(1), (2); see Ethics
Standards, std. 7(d).)4
        The proposed arbitrator’s initial disclosure must include “[t]he names of the
parties to all prior or pending noncollective bargaining cases in which the proposed
neutral arbitrator served or is serving as a party arbitrator for any party to the arbitration
proceeding or for a lawyer for a party and the results of each case arbitrated to
conclusion, including [1] the date of the arbitration award, [2] identification of the
prevailing party, [3] the names of the parties’ attorneys and [4] the amount of monetary
damages awarded, if any.” (§ 1281.9, subd. (a)(3).) The same information is required for
all such cases in which the proposed arbitrator has served or is serving as a neutral
arbitrator for any of the parties or their attorneys. (§ 1281.9, subd. (a)(4).)
       Pursuant to Ethics Standards, standard 7(d)(4), the arbitrator must disclose the
above information for matters in which he or she has served as a neutral or party-
appointed arbitrator within the preceding five years. Ethics Standards, standard

       4  The Ethics Standards referred to in section 1281.9, subdivision (a)(2), were
adopted by the Judicial Council in 2002 under the authority of section 1281.85, to
“establish the minimum standards of conduct for neutral arbitrators” and are “intended to
guide the conduct of arbitrators, to inform and protect participants in arbitration, and to
promote public confidence in the arbitration process.” (Ethics Standards, std. 1(a).)
Section 1281.85, subdivision (a), provides, in relevant part, that beginning on July 1,
2002, “a person serving as a neutral arbitrator pursuant to an arbitration agreement shall
comply with the ethic standards for arbitrators adopted by the Judicial Council pursuant
to this section. . . . ”



                                              12.
7(d)(5)(A) also requires disclosure of any pending or prior noncollective bargaining case
in which (1) the arbitrator has served as a dispute resolution neutral other than an
arbitrator, (2) the arbitrator was compensated for his or her services, (3) the case involved
a party or lawyer for a party, and (4) the arbitrator concluded his or her service within
two years before the date of the arbitrator’s proposed nomination or appointment. As
pertinent here, where the arbitrator has served as a mediator, he or she must disclose the
names of the parties in each prior and pending case, and the name of the attorney in the
current arbitration involved in each case. (Ethics Standards, std. 7(d)(5)(B).)
Forfeiture of Failures to Disclose
       Here, Vradenburg-Haworth asserts Judge Broadman’s failure to disclose the
amount of the arbitration awards and any mediations he conducted with the parties’
attorneys, along with his statement that further disclosure of mediations is “waived” if a
party does not request complete disclosure, rendered the June 28 disclosure statutorily
deficient. She asserts that, as a result, she did not have access to sufficient information to
have been able to discern that Judge Broadman had an incentive to rule in UHC’s favor.
UHC acknowledges Judge Broadman’s disclosure did not comply entirely with the
statutory requirements, but contends the incomplete disclosure does not provide sufficient
grounds to vacate the award.
       Not every omission of information that is required to be disclosed pursuant to
section 1281.9 constitutes a “ground for disqualification” within the meaning of section
1286.2, subdivision. (a)(6)(A). (Dornbirer, supra, 166 Cal.App.4th at p. 842.) Instead, a
“ground for disqualification” exists when the arbitrator failed to disclose the existence
and nature of any relationship between the arbitrator and the parties or the parties’
attorneys. (Ibid.)
       In Dornbirer, the arbitrator in a dispute between a patient and her medical
provider (Kaiser) disclosed his prior participation in several matters involving Kaiser and
its legal counsel. The disclosure statement omitted multiple pieces of information

                                             13.
required under section 1281.9, including the number of times the arbitrator had presided
over arbitrations in which Kaiser was a party, as well as the dates, results, and names of
all attorneys involved in those arbitrations. The patient did not make further inquiry into
these omissions, nor did she serve a disqualification notice or demand pursuant to section
1281.91. (Dornbirer, supra, 166 Cal.App.4th at pp. 836-837.)
       After the arbitrator ruled in Kaiser’s favor, the patient petitioned the superior court
to vacate the award pursuant to section 1286.2. On appeal from the denial of her petition,
the patient argued that any information required to be disclosed pursuant to section
1281.9 constitutes a “ground for disqualification” which the arbitrator must disclose in
order to avoid mandatory vacatur under section 1286.2, subdivision (a)(6)(A).
(Dornbirer, supra, 166 Cal.App.4th at p. 842.) Kaiser responded that this interpretation
of the law “would have absurd results, in that a party could successfully move to have
any arbitration award vacated if an arbitrator failed to disclose the amount of a single
prior award or failed to provide the name of a single attorney involved in a prior
arbitration.” (Ibid.) The appellate court agreed with Kaiser.
       The appellate court concluded that “not every item of information that is required
to be disclosed under section 1281.9 constitutes a ‘ground for disqualification’ as the
term is used in section 1286.2. Rather, the most reasonable interpretation of the statutory
scheme is that the words ‘failed to disclose within the time required for disclosure a
ground for disqualification of which the arbitrator was then aware’ in section 1286.2 refer
to a failure to disclose the existence and nature of any relationship between the arbitrator
and the parties or the parties’ attorneys, not the specifics of each such relationship.”
(Dornbirer, supra, 166 Cal.App.4th at p. 842.) Although the arbitrator has a duty to
comply with section 1281.9, the disclosure of past or present relationships constitutes
inquiry notice of the potential for bias. (Dornbirer, supra, at p. 842.) The statutory
scheme does not require an arbitration award to be vacated “when the arbitrator has
generally disclosed the grounds for disqualification, i.e., his or her relationships and prior

                                             14.
interactions with the parties to the arbitration and/or their attorneys, but has not provided
all of the specific details required under section 1281.9, and despite the omissions, the
parties agreed to go forward with the arbitration.” (Id. at p. 846.)
       In so holding, the appellate court observed that its interpretation of the statute gave
effect to section 1281.91, subdivision (c), “which states that a party waives the right to
disqualify a proposed neutral arbitrator if that party fails to meet the time requirements
set forth in that section. The exception to this waiver applies only if the proposed
arbitrator made a material omission or material misrepresentation in his or her disclosure.
(§ 1281.91, subd. (c).) Interpreting section 1286.2 to permit a party to vacate an
arbitration award at the conclusion of the arbitration based on an arbitrator’s failure to
disclose details such as the dates of prior arbitrations or the awards in prior arbitrations
when that party knew about those prior arbitrations and did not request additional
information or move to disqualify the arbitrator would undermine the purpose of the
times limitations imposed in subdivision (c) of section 1281.91. The waiver provision
would have no effect because a party could simply wait until the arbitration is over and
then move to vacate the award, despite having failed to move to disqualify the proposed
arbitrator before the arbitration commenced.” (Dornbirer, supra, 166 Cal.App.4th at
pp. 845-846.)
       The court concluded that because the patient consented to proceed with the
arbitration despite being aware of the deficiencies in the arbitrator’s disclosure, pursuant
to subdivision (c) of section 1281.91 she waived her right to disqualify the arbitrator and
could not challenge the arbitration award on the ground his failure to provide the dates,
outcomes and names of other attorneys involved in his prior Kaiser arbitrations
constitutes a ground for disqualification. (Dornbirer, supra, 166 Cal.App.4th at p. 846.)
As the court explained, “[b]y failing to raise this issue earlier, [the patient] waived the




                                              15.
right to disqualify [the arbitrator] based on an inadequate disclosure that did not amount
to a material omission or misrepresentation.” (Ibid.)5
       Based on Dornbirer, UHC asserts the trial court erred in vacating the arbitration
award because the evidence presented below showed that, before the arbitration began,
Smith knew that he himself had prior engagements with Judge Broadman, and knew and
was put on notice of prior engagements Judge Broadman had with UHC’s counsel, yet
did not make further inquiry or disqualify Judge Broadman; instead, he chose to wait and
see how the arbitration turned out, then challenge the award. The trial court, however,
did not decide this factual issue. Instead, while the trial court recognized that Dornbirer
supported UHC’s position, it refused to follow the case on the ground it was wrongly
decided and contrary to section 1281.85(c), which states, “The ethics requirements and
standards of this chapter [i.e. Chapter 2, “Enforcement of Arbitration Agreements”] are
nonnegotiable and shall not be waived.”
       In this proceeding, Vradenburg-Haworth contends that Dornbirer has been
overruled by section 1281.85(c), which was added to section 1281.85 in 2010 by
Assembly Bill 1090, after Dornbirer was decided. (Stats. 2009, ch. 133, § 1 (Assem. Bill
No. 1090), eff. Jan. 1, 2010.) She asserts that section 1281.85(c) and subsequent case law
“unequivocally eliminated any possibility of ‘waiver.’” The resolution of this issue turns
on the type of “waiver” prohibited by section 1281.85(c), which is an issue of statutory
construction.


       5 See Fininen, supra, 142 Cal.App.4th 185, 190-191 [arbitrator’s failure to fully
disclose prior mediation of a matter involving Barlow, who was a party to the arbitration,
did not provide grounds for vacating the arbitration award where Barlow, who was
challenging the award, recognized the arbitrator at the outset of the arbitration and had
access to the information concerning the mediation in his own files]; Britz, Inc. v. Alfa-
Laval Food & Dairy Co. (1995) 34 Cal.App.4th 1085, 1096-1097 (Britz) [reaching a
similar conclusion under provisions of the Federal Arbitration Act (9 U.S.C. § 1 et seq.)]




                                            16.
       Section 1281.85(c) does not define the term “waived.” In determining the
statute’s meaning, “[o]ur task is to discern the Legislature’s intent. The statutory
language itself is the most reliable indicator, so we start with the statute’s words,
assigning them their usual and ordinary meanings, and construing them in context. If the
words themselves are not ambiguous, we presume the Legislature meant what it said, and
the statute’s plain meaning governs. On the other hand, if the language allows more than
one reasonable construction, we may look to such aids as the legislative history of the
measure and maxims of statutory construction. In cases of uncertain meaning, we may
also consider the consequences of a particular interpretation, including its impact on
public policy.” (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1190;
People v. Smith (2004) 32 Cal.4th 792, 797-798.) Moreover, “[r]eviewing courts may
turn to the legislative history behind even unambiguous statutes when it confirms or
bolsters their interpretation.” (In re Gilbert R. (2012) 211 Cal.App.4th 514, 519.)
       “‘To resolve [an] ambiguity, we rely upon well-settled rules. “The meaning of a
statute may not be determined from a single word or sentence; the words must be
construed in context, and provisions relating to the same subject matter must be
harmonized to the extent possible. [Citation.] Literal construction should not prevail if it
is contrary to the legislative intent apparent in the statute. . . . An interpretation that
renders related provisions nugatory must be avoided [citation]; each sentence must be
read not in isolation but in light of the statutory scheme [citation]; and if a statute is
amenable to two alternative interpretations, the one that leads to the more reasonable
result will be followed [citation].” [Citations.]’ (People v. Shabazz (2006) 38 Cal.4th 55,
67–68; see also Robert L. v. Superior Court (2003) 30 Cal.4th 894, 903 [statutory
language should not be interpreted in isolation, but must be construed in the context of
the entire statute of which it is a part, in order to achieve harmony among the parts].) We
must interpret a statute in accord with its legislative intent and where the Legislature
expressly declares its intent, we must accept that declaration. (Tyrone v. Kelley (1973)

                                               17.
9 Cal.3d 1, 10–11.) Absurd or unjust results will never be ascribed to the Legislature,
and a literal construction of a statute will not be followed if it is opposed to its legislative
intent. (Webster v. Superior Court (1988) 46 Cal.3d 338, 344; Lungren v. Deukmejian
[(1988)] 45 Cal.3d [727], 735.)” (In re J.B. (2009) 178 Cal.App.4th 751, 756.)
       The term “waiver” can have multiple meanings. As our Supreme Court has
explained: “Generally, ‘waiver’ denotes the voluntary relinquishment of a known right.
But it can also mean the loss of an opportunity or a right as a result of a party’s failure to
perform an act it is required to perform, regardless of the party’s intent to abandon or
relinquish the right. [Citations.] The term ‘waiver’ has also been used as a shorthand
statement for the conclusion that a contractual right to arbitration has been lost.” (Platt
Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 315.) In some cases, such as those which
hold that a party may “waive” its right to arbitrate by failing to timely demand arbitration,
the use of the word “waiver” connotes “the loss or forfeiture of a right resulting from
failure to perform a required act.” (Ibid.)
       The Dornbirer case used the word “waiver” in the sense of a forfeiture of a right
resulting from failure to perform an act. As we have explained, the court held that, by
consenting to proceed with the arbitration despite being aware of the deficiencies in the
arbitrator’s disclosure, the patient “waived” her right to disqualify the arbitrator on the
basis of the inadequate disclosure. (Dornbirer, supra, 166 Cal.App.4th at p. 846.) Thus,
the court determined that by failing to perform certain acts permitted by statute, namely
by failing to serve a notice of disqualification pursuant to section 1281.91 after becoming
aware of the deficient disclosure statement, the patient lost her right to vacate the
arbitration award based on the deficient statement.
       The legislative history of section 1281.85(c), however, reflects that the term
“waived” in that subdivision is used in a different way, as the subdivision was enacted to




                                              18.
prohibit contractual waivers of the statutory right to disqualify an arbitrator, not
forfeitures of rights resulting from the failure to perform an act.6 A report of the
Assembly Committee on Judiciary states that, according to the bill’s author, “‘[t]he bill
amends the Code of Civil Procedure to prohibit arbitration providers and arbitrators from
contracting out of California’s ethical standards.’” (Assem. Comm. on Judiciary,
Analysis of Assem. Bill No. 1090 (2009-2010 Reg. Sess.), as introduced Feb. 27, 2009,
hearing date May 5, 2009, p. 3.) The report explains: “Although it should be clear that
[the Ethics Standards] were established primarily for the purpose of public protection and
therefore should not be subject to negotiation or waiver, there have been reported
instances of private judging companies imposing and attempting to defend contractual
waivers of these obligations, and there have no doubt been unreported instances as well.
(E.g., Azteca Construction, Inc. v. ADR Consulting Inc., 121 Cal.App.4th 1156 (2004)
[(Azteca)]; Jevne v. Superior Court, 35 Cal.4th 935 (2005).) This bill would settle any
doubt on the matter by declaring expressly that arbitrator ethics rules are not subject to
negotiation or waiver.” (Assem. Comm. on Judiciary, Analysis of Assem. Bill No. 1090
(2009-2010 Reg. Sess.), as introduced Feb. 27, 2009, hearing date May 5, 2009, p. 3.)7

       6 On February 7, 2014, Vradenburg-Haworth filed a request for judicial notice of
her reply memorandum filed in support of her request to vacate the arbitration award and
the following legislative reports concerning section 1281.85(c): (1) Assem. Comm. on
Judiciary, Analysis of Assem. Bill No. 1090 (2009-2010) Reg. Sess.), Hearing on Private
Arbitration: Ethics, synopsis, as introduced Feb. 27, 2009; (2) Assem. Floor Analysis,
Analysis of Assem. Bill No. 1090 (2009-2010 Reg. Sess.) as amended May 12, 2009;
(3) Sen. Comm. on Judiciary, Analysis of Assem. Bill No. 1090 (2009-2010 Reg. Sess.),
as amended May 12, 2009; and (4) Sen. Floor Analysis, analysis of Assem. Bill No. 1090
(2009-2010 Reg. Sess.) as amended May 12, 2009. We deferred ruling on the motion.
UHC has not objected to the request, which we now grant. (Evid. Code, §§ 452, subds.
(c) and (d), 459; Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 544 & fn. 4; Intel
Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1350, fn. 3.)
       7According to a Senate Judiciary Committee analysis, “[i]n response to instances
where an arbitrator has imposed contractual waivers of these obligations, this bill would
provide that existing ethical standards and requirements for neutral arbitrator are not


                                             19.
       After explaining that the bill does not involve the more controversial issue of
whether parties should even be compelled to waive their legal rights by mandatory
private arbitration clauses in adhesion contracts, the Assembly report states that the
proposed bill avoids the controversy “because it is limited only to involuntary waiver of
the arbitrator ethics rules. Ironically then, despite this worthy measure, parties would
continue to be compelled to waive their underlying statutory and constitutional rights
under mandatory private arbitration clauses.” (Assem. Comm. on Judiciary, Analysis of
Assem. Bill No. 1090 (2009-2010 Reg. Sess.), as introduced Feb. 27, 2009, hearing date
May 5, 2009, pp. 4-5.)
       The Azteca case referenced in the legislative history of section 1281.85(c), which
Vradenburg-Haworth asserts supports her position, involved the resolution of a conflict
between the rules of the American Arbitration Association (AAA) and section 1281.91,
subdivision (b), which permits a party uncomfortable with a proposed arbitrator’s
disclosures to disqualify the arbitrator within 15 days after receipt of the disclosure
statement. (Azteca, supra, 121 Cal.App.4th at p. 1160.) The plaintiff demanded
arbitration pursuant to a provision in the parties’ written contract which compelled
arbitration through AAA and its rules, one of which provided that if a party objected to a
neutral arbitrator’s continued service, AAA would determine whether the arbitrator
should be disqualified. (Id. at pp. 1160-1161.) After the proposed arbitrator served a
disclosure statement in compliance with section 1281.9, the plaintiff timely demanded
disqualification of the proposed arbitrator. AAA, however, determined there was no
good cause for disqualification and affirmed the appointment. The arbitration proceeded
to its conclusion, which resulted in an award to the defendant. (Azteca, supra, 121
Cal.App.4th at p. 1161.) The plaintiff filed a petition to vacate the award, claiming the


subject to negotiation and may not be waived.” (Sen. Judiciary Comm., Analysis of
Assem. Bill No. 1090 (2009-2010 Reg. Sess.), as amended May 12, 2009, p. 1.)



                                             20.
arbitrator was required to disqualify himself on timely receipt of its objection under
section 1281.91, subdivisions (b)(1) and (d). The trial court denied the petition, finding
the plaintiff waived the statutory disqualification right by agreeing to AAA arbitration.
(Azteca, supra, 121 Cal.App.4th at p. 1162.)
       The Court of Appeal reversed, holding that “[t]he provisions for arbitrator
disqualification established by the California Legislature may not be waived or
superseded by private contract[,]” therefore the arbitrator’s refusal to disqualify himself
following the plaintiff’s timely demand rendered the award subject to vacatur. (Azteca,
supra, 121 Cal.App.4th at p. 1160.) In so holding, the appellate court rejected the
defendant’s argument that the AAA rule took precedence over the statutory scheme based
on freedom of contract principles, namely that the parties voluntarily contracted to limit
their statutory disqualification rights and were free, under Civil Code section 3513,8 to
waive a statutory provision intended for their benefit. (Azteca, supra, at pp. 1166-1168.)
       The court instead determined the AAA rule must yield to the disqualification
scheme of sections 1281.9 and 1281.91 because (1) Civil Code section 3513 also
provides that “a law established for a public reason cannot be contravened by a private
agreement[,]” and the pertinent statutes were enacted primarily for a public purpose;
(2) “[t]he critical subject of arbitrator neutrality is a structural aspect of the arbitration
and falls within the Legislature’s supreme authority”; and (3) an arbitrator’s neutrality “is
of such critical importance that the Legislature cannot have intended that its regulation be
delegable to the unfettered discretion of a private business.” (Azteca, supra, 121
Cal.App.4th at pp. 1166-1168.) Accordingly, the court concluded that the plaintiff could
not, by agreeing to submit to arbitration before the AAA, waive its statutory rights to


       8Civil Code section 3513 provides: “Anyone may waive the advantage of a law
intended solely for his benefit. But a law established for a public reason cannot be
contravened by a private agreement.”



                                               21.
disqualify an arbitrator under the methods set forth in section 1281.9 and 1281.91.
(Azteca, supra, 121 Cal.App.4th at p. 1168.)
       Both Azteca and the legislative history of section 1281.85(c) demonstrate that
section 1281.85(c) was enacted to address contractual waiver of the disclosure
requirements and Ethics Standards, not a party’s forfeiture of its statutory right to
disqualify an arbitrator as was the case in Dornbirer. Moreover, to interpret § 1281.85(c)
as the trial court did would render nugatory section 1281.91, subdivision (c), which
expressly states that a party’s right to disqualify a proposed neutral arbitrator “shall be
waived” if the party fails to serve a notice of disqualification pursuant to the times set
forth therein. For these reasons, we conclude the term “waived” as used in section
1281.85(c) refers only to contractual waivers and reject Vradenburg-Haworth’s
contention that Dornbirer has been overruled by statute.
       Vradenburg-Haworth also asserts existing case law, specifically Gray v. Chiu
(2013) 212 Cal.App.4th 1355 (Gray) and Mt. Holyoke Homes, L.P. v. Jeffer Mangels
Butler & Mitchell, LLP (2013) 219 Cal.App.4th 1299 (Mt. Holyoke) requires vacatur. In
Gray, an arbitrator failed to comply with a requirement of the Ethics Standards that he
disclose that the attorney for one of the defendants in a malpractice case worked for the
same dispute resolution provider organization (DRPO). (Gray, supra, 212 Cal.App.4th at
p. 1358.) The nine day arbitration took place at the DRPO office, where hallways and
meeting areas displayed posters with photographs and names of panel members,
including the attorney, brochures throughout the office included the attorney’s name and
biographical information and, according to the attorney’s declaration, he saw the
plaintiff’s counsel reviewing these brochures during the arbitration. (Id. at p. 1360.) The
trial court denied the plaintiff’s petition to vacate the arbitrator’s award. (Id. at p. 1361.)
       The appellate court held the arbitrator was compelled to disclose that the attorney
was a member of the DRPO and his failure to do so required vacatur of the award under
section 1286.2, subdivision (a)(6). (Gray, supra, 212 Cal.App.4th at pp. 1364-1365,

                                              22.
1366.) In so holding, the court rejected the defendant’s argument that the plaintiff
waived the right to seek vacatur based on the arbitrator’s failure to disclose because the
plaintiff knew or should have known of the attorney’s membership from the posters and
brochures present where the arbitration took place. (Id. at pp. 1365-1366.) The court
based its rejection on two grounds: (1) section 1281.85(c) prohibits waiver of the Ethics
Standards, and (2) the Ethics Standards require an arbitrator to make timely disclosure,
i.e. within 10 days after the arbitrator becomes aware of the matter, yet the evidence of
the attorney’s membership did not surface until long after the arbitrator became aware of
the information. (Gray, supra, 212 Cal.App.4th at p. 1366.)
        In Mt. Holyoke, the arbitrator of a legal malpractice action failed to disclose that
he listed a partner of the defendant law firm as a reference on his resume, which was
available on the internet at the time of the arbitration award. The plaintiff, however, did
not discover this fact until after the arbitration. (Mt. Holyoke, supra, 219 Cal.App.4th at
p. 1312.) The appellate court held the arbitrator was required to disclose the information
and disagreed with the defendants’ contention that vacatur was precluded because the
plaintiff had constructive knowledge of the information since it was readily discoverable
on the internet. (Id. at p. 1313.) The court explained that a party to an arbitration is not
required to investigate a proposed neutral arbitrator to discover information the arbitrator
is required to disclose; instead, it is the arbitrator’s obligation to timely disclose. (Ibid.)
       The court recognized that an arbitrator’s failure to disclose would not justify
vacating an award if (1) “the party challenging the award had actual knowledge of the
information yet failed to timely seek disqualification”; or (2) “the arbitrator disclosed
information or a party had actual knowledge of information putting the party on notice of
a ground for disqualification, yet the party failed to inquire further,” citing Dornbirer,
Fininen and Britz. (Mt. Holyoke, supra, 219 Cal.App.4th at pp. 1313-1314.) The court,
however, distinguished its case from these situations, as it was undisputed the plaintiff
did not discover the resume until after the arbitration and there was no indication she

                                              23.
previously had actual knowledge of information that would have put her on inquiry
notice of the undisclosed fact. (Ibid.)
       Neither Mt. Holyoke nor Gray preclude our conclusion that section 1281.85(c)
prohibits contractual waivers, not forfeitures, and that the holding in Dornbirer is still
viable. While Gray certainly provides support for Vradenburg-Haworth’s contention that
the disclosure requirements cannot be waived, we decline to follow Gray because the
appellate court did not consider the legislative history of section 1281.85(c) or analyze
whether that subdivision applied to forfeitures of the type discussed in Dornbirer. While
Mt. Holyoke explains that a party is not required to investigate a proposed arbitrator to
uncover information the arbitrator is obligated to disclose, it also notes a party may
forfeit his or her ability to vacate an arbitrator’s award if the party was aware of omitted
or incomplete information yet took no action to either disqualify the arbitrator or obtain
more information.
       Under Dornbirer, section 1286.2(a)(6)(A) provides a remedy to those parties who
had no reason to know of the existence of a non-disclosed matter. While an arbitrator has
a duty to disclose all of the details required to be disclosed pursuant to section 1281.9 and
the Ethic Standards, a party aware that a disclosure is incomplete or otherwise fails to
meet the statutory disclosure requirements, cannot passively reserve the issue for
consideration after the arbitration has concluded. Instead, the party must disqualify the
arbitrator on that basis before the arbitration begins.
       The issue in this case then, is whether the facts, as presented in the declarations
filed below, show that Vradenburg-Haworth’s attorneys had actual knowledge of a
ground for disqualification before the arbitration commenced. The trial court, having
rejected the applicability of Dornbirer, never reached this issue. Since this involves an
issue of fact based on conflicting evidence, we decline UHC’s invitation to decide the
issue ourselves and Vradenburg-Haworth’s invitation to distinguish Dornbirer on its
facts, and instead remand the matter for the trial court to determine the factual posture of

                                              24.
the case and whether the principles as stated in Dornbirer apply to those facts. Neither
do we decide the other issues that were before the trial court on the petition to confirm,
and request to vacate, the award, which the trial court found were moot. While it is clear
Judge Broadman willfully failed to comply with his disclosure obligations, our opinion
should not be construed as condoning or excusing his behavior.
                                      DISPOSITION
       The petition for writ of mandate is granted. This court’s alternative writ of
mandate, filed December 11, 2013, is discharged. Let a peremptory writ of mandate
issue directing the respondent superior court to vacate its June 14, 2013 order vacating
the arbitration award and to reconsider the parties’ petitions in light of this opinion.
Defendant UHC is entitled to recover its costs in this writ proceeding.



                                                                   _____________________
                                                                        Gomes, Acting P. J.
WE CONCUR:


 _____________________
Kane, J.


 _____________________
Detjen, J.




                                             25.
