Filed 1/12/15 Anderson v. Kaiser Permanente CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


ADRIANA ANDERSON,                                                     B252061

         Plaintiff and Appellant,                                     (Los Angeles County
                                                                      Super. Ct. No. BC448028)
         v.

KAISER PERMANENTE MEDICAL
GROUP et al.,

         Defendants and Respondents.



         APPEAL from judgment of the Superior Court of Los Angeles County,
Barbara M. Scheper, Judge. Affirmed.


         A. Marcus Hall & Associates and Alvin M. Hall for Plaintiffs and Appellants.


         La Follette, Johnson, De Haas, Fesler & Ames, Brian W. Birnie and Jeffrey A.
Rector for Defendants and Respondents.


                                            _____________________
                                   INTRODUCTION
       Plaintiff Adriana Anderson appeals the superior court’s entry of judgment
confirming the arbitration award in favor of Defendants Kaiser Foundation Hospitals,
Inc., and Daniel V. Vigil, M.D. Plaintiff argues that the arbitration award should have
been vacated by the superior court under Code of Civil Procedure section1 1286.2,
subdivision (a)(5) because her rights were substantially prejudiced by the arbitrator’s
refusal to continue the arbitration hearing. We affirm the superior court’s confirmation of
the arbitration award because Plaintiff waived her request for continuance when her
counsel stipulated to proceed with arbitration without any live testimony.
                   FACTS AND PROCEDURAL BACKGROUND
       Plaintiff Adriana Anderson’s father, Anthony Anderson, died from rectal cancer in
2009. Plaintiffs Adriana Anderson, Anthony Anderson, Jr., and Anthony Anderson’s
estate filed a wrongful death and medical malpractice action against Defendants in Los
Angeles Superior Court, alleging the negligent failure to diagnose Anthony Anderson’s
rectal cancer in 2000. The court ordered the case into arbitration pursuant to the terms of
the decedent’s health plan contract with Kaiser. The arbitration hearing was set for
October 9, 2012. In the interim, the parties filed motions; several of the evidentiary
motions were pending at the time the arbitration commenced in October.
       On October 5, 2012, Plaintiffs served an ex parte application for an order to
continue the arbitration, which was scheduled to commence on October 9, 2012.
Plaintiffs argued that due to their counsel’s medical condition, which adversely affected
his cognitive status and performance, and Plaintiff Adriana Anderson’s absence from the
country, they required a continuance of the arbitration until January 21, 2013.
Specifically, counsel stated that he had recently changed medications to address his long-
term hypertension and it had negatively impacted his ability to sleep. He also argued that
because Plaintiff was studying abroad, the arbitration should be continued into January,
after she was expected to return, even though Plaintiff’s deposition had already been

1
       All subsequent statutory references are to the Code of Civil Procedure.


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taken by that point in time. Defendants opposed the motion to continue, arguing that
Plaintiffs’ counsel knew of Adriana Anderson’s intended absence since January 2012
when the arbitration hearings were calendared and that Defendants would be greatly
prejudiced by a continuance.
       When the parties convened with the arbitrator on October 9, 2012, the arbitrator
suggested and the parties agreed to meet and confer regarding the pending motions,
which included Plaintiffs’ motion to continue the arbitration. Plaintiffs’ counsel and
Defendants’ counsel came to a mutual agreement about the continuance and pending
evidentiary issues. The parties agreed to proceed with the arbitration, but that neither
side would offer any live testimony. Rather, all evidence would be submitted in the form
of declarations, deposition testimony, and medical records, and the parties could make
oral closing arguments. The arbitrator never made a ruling on Plaintiff’s request for a
continuance. After reviewing the evidence and hearing argument, the arbitrator issued an
award in favor of Defendants based on expiration of the statute of limitations and its
factual finding that the initial treating physician (Dr. Vigil) met the standard of care when
he treated Anthony Anderson in 2000.
       Plaintiffs then petitioned the superior court for review of the arbitration award.
Plaintiffs argued that the court must vacate the award under section 1286.2, subdivision
(a)(5), because their rights were substantially prejudiced by the arbitrator’s refusal to
continue the arbitration hearing. Defendants opposed the petition and requested the court
to enter judgment confirming the award. The superior court denied Plaintiffs’ petition
and entered judgment confirming the award, finding that the arbitrator never denied the
continuance and that Plaintiffs suffered no prejudice as a result of proceeding with the
arbitration as scheduled.
       Solely Plaintiff Adriana Anderson appeals the court’s judgment.
                                       DISCUSSION
       Plaintiff’s only argument on appeal is that the superior court erred in confirming
the arbitration award because she was substantially prejudiced by the arbitrator’s denial
of her request for a continuance. “Generally, an arbitrator’s decision in a dispute between


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parties to an arbitration agreement is subject to only limited judicial review.” (Berglund
v. Arthroscopic & Laser Surgery Center of San Diego, L.P. (2008) 44 Cal.4th 528, 534,
italics omitted.) We do not review arbitration decision for errors of fact or law. (SunLine
Transit Agency v. Amalgamated Transit Union, Local 1277 (2010) 189 Cal.App.4th 292,
302.) Rather, our review of arbitration awards is typically limited to the statutory
grounds for vacating or correcting an award, as set forth in sections 1286.2 and 1286.6.
(Id. at pp. 302-303; Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 12-13.) We review
de novo the superior court’s order confirming or vacating the arbitration award pursuant
to these statutes. (SWAB Financial LLC v. E*Trade Securities LLC (2007)
150 Cal.App.4th 1181, 1196 (SWAB); Alexander v. Blue Cross of California (2001)
88 Cal.App.4th 1082, 1087.) “However, we apply the substantial evidence test to the
trial court’s ruling to the extent it rests upon a determination of disputed factual issues.”
(SWAB, at p. 1196.)
       Here, Plaintiff asserts that pursuant to section 1286.2, subdivision (a)(5), we
should vacate the arbitration award because she was prejudiced by the arbitrator’s denial
of her request for continuance. Under section 1286.2, subdivision (a)(5), courts shall
vacate arbitration awards where “[t]he rights of the party were substantially prejudiced by
the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown
therefor . . . .” Plaintiff’s counsel submitted a motion to continue the arbitration just four
days prior to the first arbitration hearing. In the motion, counsel emphasized two reasons
for continuance: Plaintiff’s absence from the country and counsel’s own medical
condition.
       Plaintiff asserts that the arbitrator “summarily denied” her motion for a
continuance on October 9, 2013 and substantially prejudiced her by doing so. Yet,
nowhere in the record is there evidence of this summary denial. Rather, substantial
evidence supports the superior court’s finding that there was no evidence that the
arbitrator denied Plaintiff’s requested continuance. The record indicates that the
arbitrator never ruled on this issue and Plaintiff offers no citation to the record showing
that her continuance was denied. Rather, the record reflects that on October 9, 2013, the


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parties met and conferred regarding the motion for continuance and other pending
motions regarding evidence, resolved the issues, and agreed to proceed with arbitration.
       The arbitration award issued by the arbitrator evidences the parties’ stipulation
regarding the pending motions, which included Plaintiff’s request for a continuance.
When setting forth the procedural history of the case in the Arbitration Award, the
arbitrator wrote: “There were motions and oppositions filed on both sides. The arbitrator
was advised that the parties believed they could work out some form of stipulation that
would narrow and address pending issues. After a brief and confidential meeting
between them, the parties advised the arbitrator that they had reached [an] agreement. In
lieu of live testimony at the arbitration hearing and ruling on various motions, the parties
agreed they would submit the matter on declarations of the experts, medical records
attached to respondent’s arbitration brief and the deposition of claimant Adriana
Anderson, decedent’s daughter.”
       Defense Attorney Brian W. Birnie provided a declaration in support of
Defendants’ opposition to the motion to vacate the arbitration award, describing these
events in greater detail. In his declaration, he stated that at the October 9, 2012
arbitration hearing, the arbitrator suggested and the parties agreed to meet and confer
regarding the pending motions; one of the pending motions was Anderson’s motion to
continue the arbitration. Birnie attested that during the 20 to 40 minute meeting, Alvin
M. Hall (Plaintiff’s attorney) and Birnie mutually agreed to proceed with arbitration and
resolved the pending evidentiary issues. Defendants explain that through this agreement,
they “forfeited certain legal rights and potential remedies” in order to proceed with the
arbitration and accommodate Hall’s needs. Namely, pursuant to the agreement,
Defendants could not present: any testimony from Defendant Dr. Vigil as his deposition
had not been taken, live testimony from their own experts, or additional medical records.
By the agreement, Defendants also waived their pending motion to exclude testimony
from Plaintiffs’ experts, which was based on Plaintiff’s failure to produce their experts
for deposition.



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       On appeal, Plaintiff briefly responds to Defendants’ argument regarding the
stipulation, arguing that the record fails to show “the degree of coercion that occurred
ultimately compromising the Appellant’s due process rights.” Plaintiff asserts that
Defendants’ characterization of her participation in the arbitration as free and voluntary
“wholly misrepresents what actually occurred and flies in the face of a formal request to
continue the matter based upon medical considerations.” Based on our review of the
record, it appears that Plaintiff makes this argument for the first time on appeal. (Ochoa
v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3 [“arguments not
asserted below are waived and will not be considered for the first time on appeal”].)
In addition, Plaintiff does not identify the manner in which she or her counsel was
coerced or forced to stipulate to proceeding with the arbitration. Plaintiff also fails to
provide us with any evidence of this alleged coercion. “It is well settled, of course, that
a party challenging a judgment has the burden of showing reversible error by an adequate
record.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) Plaintiff has failed to meet her
burden on appeal as there is no evidence of, or even argument about, the existence of
coercion below. Moreover, given the benefits Plaintiff obtained via the stipulation,
namely an accommodation for her counsel’s medical issue by the elimination of live
testimony and waiver of Defendants’ motion to exclude her experts, the stipulation itself
does not appear coercive.
       Based on the foregoing, the court’s factual finding that the arbitrator did not deny
Plaintiff’s motion for continuance is supported by substantial evidence. As the court
never refused to postpone the hearing, Plaintiff does not have a statutory basis for
reversal under section 1286.2, subdivision (a)(5), which only authorizes vacating the
arbitration award where “[t]he rights of the party were substantially prejudiced by the
refusal of the arbitrators to postpone the hearing upon sufficient cause being shown . . . .”
Plaintiff has not asserted any other statutory basis for setting aside the arbitration award.
We therefore affirm the superior court’s confirmation of the arbitration award.




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                                    DISPOSITION
      The judgment is affirmed. Defendants Kaiser Foundation Hospitals, Inc., and
Daniel V. Vigil, M.D., are awarded their costs on appeal.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                KITCHING, Acting P. J.

I concur:




                    ALDRICH, J.




                    KUSSMAN, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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