Haworth v. Superior Court

• Decision Date: 10 July 2008
• Docket Number: No. B204354.,B204354.
• Citation: 164 Cal.App.4th 930,79 Cal. Rptr. 3d 800
• Parties: RANDAL D. HAWORTH et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; SUSAN AMY OSSAKOW, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

164 Cal.App.4th 930

79 Cal. Rptr. 3d 800

RANDAL D. HAWORTH et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; SUSAN AMY OSSAKOW, Real Party in Interest.

No. B204354.

Court of Appeals of California, Second District, Division Five.

July 10, 2008.

As modified July 28, 2008.

Schmid & Voiles, Suzanne De Rosa and Denise Greer for Petitioners. No appearance for Respondent.

Bostwick & Associates, Jeffrey S. Mitchell; Dunn & Koes, Pamela E. Dunn, Daniel J. Koes and Mayo L. Makarczyk for Real Party in Interest.

OPINION

KRIEGLER, J.

Petitioners Randal D. Haworth and The Beverly Hills Surgical Center, Inc. (collectively referred to as Haworth), seek a writ of mandate directing respondent court to reinstate an arbitration award in their favor. The arbitration award found Haworth not liable on claims of medical malpractice and battery in relation to cosmetic surgery that Haworth performed on Susan Amy Ossakow (Ossakow). Respondent court vacated the award on the ground that one of the arbitrators failed to disclose that when he was a sitting judge he received a public censure by the California Supreme Court for disparaging his female employees and colleagues based on their physical attributes, sexuality, and ethnicity. Because respondent court correctly concluded that the arbitrator's censure would cause a reasonable person to doubt his impartiality, we hold that the arbitration award was properly set aside and deny the petition.

FACTS AND PROCEDURAL HISTORY

On September 11, 2003, Haworth performed an elective cosmetic procedure on Ossakow's lips. It was the fifth cosmetic procedure performed on Ossakow's face. According to Ossakow, Haworth not only performed the agreed upon procedure, but further altered her nose and its underlying musculature without her consent. Ossakow alleged the procedures were done improperly, leaving her with pain, numbness, swelling, an inability to eat or speak normally, and deformities in her lip and chin areas. Ossakow filed an action against Haworth for medical malpractice and battery.

Because Ossakow had signed an arbitration agreement, the parties stipulated that the matter would be sent to binding, contractual arbitration. The arbitration agreement provided that the matter would be considered by a panel of three arbitrators, consisting of an arbitrator selected by each party and one "neutral" arbitrator. The agreement further provided that "the arbitrators shall be governed by the California Code of Civil Procedure provisions relating to arbitration."

Haworth selected an arbitrator and proposed four other arbitrators to serve as the neutral arbitrator, including retired Los Angeles Superior Court Judge Norman Gordon (Judge Gordon). Counsel for Ossakow then selected her arbitrator and stated she would be amenable to having Judge Gordon sit as the neutral arbitrator. Ossakow's counsel contacted Judge Gordon and asked if he were willing to serve as the neutral arbitrator. If Judge Gordon were willing, counsel asked that he send confirmation "along with any other pertinent information." Judge Gordon replied by accepting the appointment and enclosed a "Disclosure" revealing that he had been involved in legal proceedings with members of defense counsel's law firm, but otherwise had nothing to disclose to the parties.

Arbitration proceedings commenced. Haworth won a summary adjudication motion on the battery claim. The arbitration went forward on the medical malpractice claim. In a two-to-one decision, with Ossakow's chosen arbitrator dissenting, the panel found that Ossakow failed to prove the procedures were performed without consent, and that Haworth's performance did not fall below the relevant standard of care. The majority arbitrators stated that Ossakow was not credible because the severity of the symptoms to which she testified went beyond what she described to her doctors, adding, "This claimant has had five prior facial surgeries." Similarly, in summarizing Ossakow's expert's testimony, these arbitrators noted, "One thing probably everyone can agree upon, after five facial surgeries, [Ossakow] could have done without a sixth one."

After receipt of the arbitration award, Ossakow discovered that when Judge Gordon was on the bench, he had been publically censured by the California Supreme Court for making sexually explicit remarks, ethnic slurs, and derogatory comments to or about his female employees and colleagues based on their physical attributes.¹ (See In re Gordon, supra, 13 Cal.4th 472, 473-474.) She thereupon moved respondent court to vacate the arbitration award because Judge Gordon did not disclose his censure prior to the arbitration, as required by California Code of Civil Procedure, section 1281.9.² Specifically, she asserted that Judge Gordon's censure revealed his bias toward women based on their physical attributes, a fact that raised questions regarding Judge Gordon's ability to be impartial in her case, and which should have been disclosed to the parties.

Respondent court granted Ossakow's motion to vacate the arbitration award. It found that a reasonable person advised of Judge Gordon's censure would entertain a doubt as to his impartiality, requiring disclosure pursuant to Code of Civil Procedure section 1281.9. The arbitration award was vacated, and a new arbitration ordered. The instant petition for writ of mandate followed.

On January 22, 2008, this court denied Haworth's petition, with one justice voting to issue an order to show cause. The California Supreme Court granted Haworth's petition for review and transferred the matter back to this court with directions to vacate the denial and issue an alternative writ of mandate. An alternative writ of mandate thereupon issued, directing respondent court to vacate its order or show cause why it should not be directed to do so by this court. By way of a minute order, respondent court respectfully declined to vacate its order. Thus, we turn to the merits of Haworth's petition.

STANDARD OF REVIEW

Generally, we review an order vacating an arbitration award de novo. (Malek v. Blue Cross of California (2004) 121 Cal.App.4th 44, 55-56 ; Reed v. Mutual Service Corp. (2003) 106 Cal.App.4th 1359, 1364-1365 (Reed).) However, factual determinations underlying the order are reviewed for substantial evidence. (Reed, supra, 106 Cal.App.4th at p. 1365; Betz v. Pankow (1993) 16 Cal.App.4th 919, 923 (Betz I).) This court has specifically held that whether an arbitrator had a duty to disclose information that might indicate bias is a question of fact for the trial court and is entitled to deferential review. (Guseinov v. Burns (2006) 145 Cal.App.4th 944, 957 (Guseinov).)

Nevertheless, the parties suggest that a de novo standard of review should be applied in this case because the facts underlying respondent court's determination that a reasonable person might doubt Judge Gordon's ability to be impartial are undisputed. There are cases suggesting that when the facts allegedly demonstrating bias are not in dispute, a de novo standard of review may be applied. (Casden Park La Brea Retail LLC v. Ross Dress for Less, Inc. (2008) 162 Cal.App.4th 468, 476, fn. 7 ; Betz v. Pankow (1995) 31 Cal.App.4th 1503, 1508 (Betz III).) However, the weight of authority applies the substantial evidence standard of review, even when the underlying facts are undisputed, recognizing that the question of whether the particular circumstances of a case require disclosure is itself a factual determination for the trial court to make. (E.g., Luce, Forward, Hamilton & Scripps, LLP v. Koch (2008) 162 Cal.App.4th 720, 734 [arbitrator served with party's lawyer and witness on boards of professional organizations]; Guseinov, supra, 145 Cal.App.4th at pp. 951, 957 [arbitrator served as an uncompensated mediator in a prior case in which plaintiff's attorney represented a party]; O'Flaherty v. Belgum (2004) 115 Cal.App.4th 1044, 1105-1106 (dis. opn. of Grignon, J.) [arbitrator in law firm dissolution was previously represented by the law firm for some parties and had separated from his own law firm in difficult circumstances]; Reed, supra, 106 Cal.App.4th at pp. 1370-1371 [arbitrators had a practice of entertaining prearbitration motions to limit or dismiss arbitrable claims]; Michael v. Aetna Life & Casualty Ins. Co. (2001) 88 Cal.App.4th 925, 931, 933 (Michael) [arbitrator had prior and ongoing relationship with the defendant]; see also Figi v. New Hampshire Ins. Co. (1980) 108 Cal.App.3d 772, 776 .) While we recognize the conflict in the authorities as to the correct standard of review, we need not attempt to resolve the dispute, as our decision would be the same under either standard.

DISCUSSION

(1) The Code of Civil Procedure explicitly requires a person nominated for service as a neutral arbitrator in a contractual arbitration to disclose any matter that could cast doubt on his or her ability to be impartial.³ Section 1281.9, subdivision (a), mandates that the proposed neutral arbitrator "shall 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." Such facts include any that would constitute grounds for a sitting judge to disqualify himself or herself, as required by section 170.1. (§ 1281.9, subd. (a)(1).) Section 170.1, subdivision (a)(6)(A) requires a judge to step aside if "[f]or any reason:

"(i) The judge believes his or her recusal would further the interests of justice.

"(ii) The judge believes there is a substantial doubt as to his or her capacity to be impartial.

"(iii) A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial."

(2) The Legislature recently instructed the Judicial Council to promulgate a code of ethics to which neutral arbitrators "shall" adhere. (§ 1281.85, subd. (a).) In creating those "minimum" standards, the Judicial...