Cox v. Bonni

30 Cal.App.5th 287

241 Cal.Rptr.3d 359

Lisa COX, Plaintiff and Appellant,

v.Aram BONNI, Defendant and Respondent.

B279476

Court of Appeal, Second District, Division 1, California.

Filed December 17, 2018

Law Offices of Ramin R. Younessi, Ramin R. Younessi and David Z. Sohn, Los Angeles, for Plaintiff and Appellant.

Carroll, Kelly, Trotter, Franzen, McKenna & Peabody, Richard D. Carroll, David P. Pruett, Long Beach; Schmid & Voiles, Denise H. Greer and Kathleen D. McColgan, Los Angeles, for Defendant and Respondent.

BENDIX, J.

Plaintiff Lisa Cox (plaintiff) appeals from the judgment confirming an arbitration award in favor of defendant and respondent Aram Bonni, M.D. (defendant), whom she sued for medical malpractice following a hysterectomy. Plaintiff had moved successfully to vacate the award based on the neutral arbitrator’s failure timely to disclose his past dealings and ex parte communications with defendant’s counsel. Defendant thereafter moved for reconsideration. The arbitrator himself appeared at the hearing on the motion, arguing that plaintiff forfeited any objection to his untimely disclosures by not raising the issue until the arbitration was over, and that he disclosed one of the two challenged ex parte communications in the written award itself. The trial court granted reconsideration based on the arbitrator’s arguments and confirmed the award without further briefing or hearing.

Plaintiff raises three challenges on appeal. First, she challenges the trial court’s order compelling the parties to arbitrate, arguing that the arbitration agreements did not conform to statutory requirements, that she did not read and understand the agreements when she signed them, and that defendant waived his right to arbitrate by litigating the case for more than three months before asserting his right to arbitrate. Second, she challenges the trial court’s confirmation of the arbitration award, arguing that the previous order vacating the award was correct. Lastly, she challenges the trial court’s grant of reconsideration, arguing that defendant’s motion was not based on new facts or law, and the trial court erred in permitting the arbitrator to present argument.

This case involves unfortunate conduct by plaintiff’s counsel and the neutral arbitrator in the proceedings on review before us. This conduct includes omissions of key facts and misrepresentations by plaintiff’s counsel that would allow us to deem plaintiff’s challenges as forfeited. This conduct also includes actions by the neutral arbitrator that understandably could cause someone to question his impartiality. This having been said, we conclude that none of plaintiff’s challenges is meritorious and thus affirm the judgment.

BACKGROUND

A. Complaint, discovery, and demand for arbitration

On August 24, 2011, plaintiff filed a complaint for medical malpractice against defendant and Weight Loss Centers, a business entity with whom defendant was affiliated, alleging that defendant negligently performed a hysterectomy on plaintiff. On September 2, 2011, plaintiff amended the complaint to add her husband John Cox as a plaintiff, alleging damages from loss of consortium.¹

Defendant answered the complaint on December 14, 2011. At the same time, defendant served 12 sets of discovery requests on plaintiff and her husband, including form and special interrogatories, requests for production of documents, and requests for admissions.

On February 8, 2012, defendant’s counsel sent a letter to plaintiff’s counsel attaching two physician-patient arbitration agreements signed by plaintiff and a representative of defendant’s medical corporation on August 28 and September 10, 2010, which defendant’s counsel claimed to have discovered while reviewing plaintiff’s medical records. Defendant’s counsel demanded arbitration in light of the agreements. According to defendant’s counsel, plaintiff’s counsel never responded to the demand.

The next day, February 9, defendant served notices of deposition on both plaintiff and her husband. On February 16, 2012, defendant served four more sets of interrogatories on plaintiff and her husband. The caption page for each of the February 16 sets stated "In The Matter Of The Arbitration Between" the Coxes, defendant, and Weight Loss Centers (boldface and some capitalization omitted).

On March 16, 2012, defendant applied ex parte for an order continuing the trial date, which the trial court granted. The record on appeal does not contain a reporter’s transcript or minute order from any proceeding related to that ex parte application, but plaintiff’s counsel asserted in a later declaration that defendant did not "mention ... a desire or intent to arbitrate" at the hearing.

B. Petition to compel arbitration

On April 6, 2012, defendant filed a verified petition to stay the trial court proceedings and compel the parties to arbitration. Plaintiff opposed the petition, arguing that defendant had waived his right to arbitrate by unduly delaying his petition and by engaging in litigation and discovery inconsistent with an intent to arbitrate. Plaintiff further argued that defendant had failed to prove that certain language in the arbitration agreements had been presented to plaintiff in bold red type as required by Code of Civil Procedure section 1295, subdivision (b),² and that plaintiff was not aware that the documents she signed included an arbitration provision. Plaintiff provided a declaration in support of her opposition claiming, among other things, that at the time of her medical treatment, she did not read the documents presented to her by defendant’s receptionist and that the receptionist insinuated that plaintiff should fill them out quickly.

Defendant filed a reply supported by defendant’s counsel’s declaration purporting to attach a color copy of the September 10 arbitration agreement, and stating that counsel would provide a color copy of the August 28 agreement at the hearing on the petition.

The hearing on the petition, held June 7, 2012, focused on plaintiff’s argument that defendant had waived his right to arbitrate. Neither the parties nor the court raised or addressed plaintiff’s arguments regarding the red type or her lack of understanding of the arbitration agreements. Following the hearing, the trial court ordered the parties to arbitration, finding that plaintiff had not shown prejudice from defendant’s delay in asserting his right to arbitrate.

C. The arbitration

The parties proceeded to arbitration. Plaintiff and defendant each chose a party arbitrator; the defendant party arbitrator was replaced when its initial choice died during the proceedings. The party arbitrators jointly selected a neutral arbitrator as the third arbitrator on or about September 5, 2012. The neutral arbitrator was affiliated with Judicate West, a provider of alternative dispute resolution services, which also served as the administrator of the arbitration.

In October 2014, the law firm of Carroll, Kelly, Trotter, Franzen, McKenna & Peabody (Carroll Kelly) substituted in as defendant’s counsel. Notice of the substitution was served on plaintiff on October 28, 2014. On January 23, 2015, Judicate West provided written disclosures to the parties listing the neutral arbitrator’s previous work as an arbitrator or mediator in cases involving Carroll Kelly.

The arbitration hearing took place in October 2015. On or about November 11, 2015, the arbitration panel issued an interim award finding in favor of defendant and awarding nothing to plaintiff and her husband, with the plaintiff party arbitrator dissenting. The interim award notified the parties that if they wished to request a hearing regarding costs pursuant to section 998, they must do so within five days.

On November 25, 2015, the neutral arbitrator issued a document entitled "Final Arbitration Award" (boldface and some capitalization omitted) stating that defendant had advised the panel by e-mail that defendant would not seek costs pursuant to section 998. The document attached the interim award, stating that "the award may now be considered final for all purposes."

On December 31, 2015, plaintiff’s counsel e-mailed the neutral arbitrator informing him that on the weekend before the arbitration hearing, defendant’s counsel told plaintiff’s counsel that he had spoken to the neutral arbitrator about the neutral arbitrator’s availability during the arbitration. Plaintiff’s counsel asked the neutral arbitrator "to confirm whether or not you had any telephonic or in person discussions outside of the Judicate West office with [defendant’s counsel] either the weekend preceding the arbitration or during the arbitration." The neutral arbitrator replied by e-mail that the week before arbitration he was in a mediation on a different case at which defense counsel was present. The neutral arbitrator asked defense counsel if the defense was "going to be ready to go on Monday." Defense counsel said yes and asked if the neutral arbitrator would be available all five days the following week, to which the neutral arbitrator also said yes. The neutral arbitrator said that was the extent of the conversation, and he had no further conversations with defense counsel about plaintiff’s case. The neutral arbitrator ended the e-mail stating, "You are a competent young professional with hopefully a long and successful career ahead of you. You need to be careful who you accuse of engaging in unethical behavior."

On January 9, 2016, plaintiff’s counsel informed the neutral arbitrator that plaintiff’s counsel had not received a copy of the e-mail referenced in the written final award in which defendant’s counsel declined to seek costs. Plaintiff’s counsel requested that the neutral arbitrator provide the e-mail, which the neutral arbitrator did. Dated November 17, 2015, it read, "On behalf of the defense, we waive all costs associated with the award."

D. Motion to vacate award

Plaintiff moved to vacate the arbitration award on the basis of the neutral...