Grabowski v. Kaiser Found. Health Plan, Inc.

64 Cal.App.5th 67

278 Cal.Rptr.3d 553

Joanna G. GRABOWSKI, Plaintiff and Appellant,

v.KAISER FOUNDATION HEALTH PLAN, INC., et al., Defendants and Respondents.

D076968

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

Filed April 19, 2021

Joanna G. Grabowski, in pro. per., for Plaintiff and Appellant.

Cole Pedroza, Kenneth R. Pedroza, Alysia B. Carroll; Davis, Grass, Goldstein & Finlay and Vincent J. Iuliano, San Diego, for Defendants and Respondents.

GUERRERO, J.

Joanna G. Grabowski brought claims for medical malpractice against Kaiser Foundation Health Plan, Inc., Southern California Permanente Medical Group, and various associated physicians (collectively, Kaiser).¹ The claims were heard by an arbitrator, Byron Berry, pursuant to a contractual arbitration agreement. After a contested hearing, the arbitrator awarded judgment in favor of Kaiser.

Grabowski petitioned the trial court to vacate the arbitration award. ( Code Civ. Proc., § 1285 ; further statutory references are to the Code of Civil Procedure.) She alleged (1) the arbitrator committed misconduct, and revealed disqualifying bias, by engaging in an ex parte communication with Kaiser's counsel about Grabowski's self-represented status; (2) the arbitrator failed to disclose two matters involving Kaiser where he was selected as an arbitrator; and (3) the arbitrator improperly denied Grabowski's request for a continuance of the arbitration hearing. The trial court found that "the arbitrator's conduct did not rise to a level that substantially prejudiced [Grabowski's] rights" and therefore dismissed her petition.

Grabowski appeals the trial court's order dismissing her petition. She reasserts all three grounds for vacating the arbitration award. We agree the award should be vacated. The ex parte communication between the arbitrator and Kaiser's counsel was recorded by Grabowski's mother as part of her effort to document the arbitration hearing. The audio recording reveals comments by the arbitrator making light of Grabowski's self-representation and her inability, in the arbitrator's view, to effectively represent herself. The arbitrator volunteered these comments to Kaiser's counsel, ex parte, and they shared a hearty laugh about Grabowski's perceived shortcomings as an advocate.

The arbitrator committed misconduct on several levels. At least one requires vacating the arbitration award. A neutral arbitrator has a continuing duty to disclose all matters that could cause a person aware of the facts to reasonably entertain a doubt that the neutral arbitrator would be able to be impartial. The arbitrator's ex parte communication with Kaiser's counsel certainly qualifies. Because the arbitrator was aware of this communication and did not disclose it to Grabowski, the award must be vacated. ( § 1286.2, subd. (a)(6)(A).) We therefore reverse the order dismissing the petition with directions to grant the petition and vacate the arbitration award. In light of our conclusion, we need not consider the other grounds for vacating the award asserted by Grabowski.

FACTUAL AND PROCEDURAL BACKGROUND

In the underlying arbitration, Grabowski alleged that Kaiser negligently failed to diagnose a large, benign ovarian tumor. A Kaiser physician noted abnormalities in an early radiological scan and recommended follow-up, but this recommendation was not followed by Kaiser. Over the ensuing years, Grabowski suffered severe pain and discomfort, which she attributed to the growing tumor. The tumor was discovered when Grabowski was a teenager, after it had grown close to the size of a melon. Kaiser performed surgery to remove it. After the surgery, Grabowski continued to suffer severe pain. A different medical provider discovered that a portion of Grabowski's small intestine had become trapped when her surgical incision was closed.

Kaiser disputed that it should have diagnosed the tumor or that the tumor caused Grabowski's years-long symptoms. It contended Grabowski's pain was caused by other conditions.

The arbitration hearing was held over five days. The arbitrator heard percipient and expert testimony from both sides. Grabowski, now college-aged, represented herself. She was assisted by her mother. Kaiser was represented by an attorney, Vincent Iuliano, who is also co-counsel of record in this appeal.

In his award, the arbitrator found that Grabowski's tumor could not have been diagnosed until it became approximately the size of a melon. He understood Grabowski's expert to testify that Kaiser's physicians had individually met the requisite standard of care, but that Kaiser as a whole "breached its standard of care for not diagnosing the tumor earlier." The arbitrator rejected this theory, which he characterized as "an attempt to impose liability on Kaiser without finding fault or blame on any of the doctors" who treated Grabowski. The arbitrator noted that Grabowski had suffered severe pain for many years and continued to experience pain. He theorized that her pain was caused by "her intense engagement in athletics as a pitcher on her college softball teams."

The arbitrator concluded that Grabowski "failed to establish through expert testimony that the legal cause of her injuries was the failure of her Kaiser doctors to exercise the care and skill required under the circumstances." He therefore awarded judgment in favor of Kaiser.

Grabowski, represented by counsel, petitioned the trial court to vacate the award based on three primary grounds. She supported her petition with several declarations, documentary exhibits, and the audio recording of the arbitrator's ex parte communication with Kaiser's counsel.

First, Grabowski contended that the arbitrator committed misconduct during an early break in the arbitration proceedings by joking with Kaiser's counsel, ex parte, about Grabowski's self-representation. Grabowski's mother was recording the proceedings on her cell phone and had inadvertently left it going while she and Grabowski left the room. The unofficial transcript of the audio record submitted by Grabowski is reproduced below, with minor punctuation changes. Kaiser does not contest its general accuracy.

THE ARBITRATOR: "I've been doing this for a long time. This has been one of the bigger—bigger challenges, uh, because she doesn't have an attorney. It makes it just kinda awkward."

KAISER'S COUNSEL: "First time in 30 years in my practice ...."

THE ARBITRATOR: "For you?"

KAISER'S COUNSEL: " ... I've never seen this before."

THE ARBITRATOR: "He'd, uh, everybody had representatives before?"

KAISER'S COUNSEL: "Absolutely."

THE ARBITRATOR: "And this is the wrong case. This is the wrong case. How can you not have an attorney? Even in some union cases and stuff that I deal with quite a bit. (Laughs.) Private cases, uh, or what have you, ‘cause even with, uh, in union cases, uh, they have representatives who are not attorneys, but they know this stuff so well, they might, uh, you know, they're just as qualified as an attorney. So, she must have a representative that you can rely on, you know, to make sure that everything's done correctly. You know, but this is .... (Laughs.) [She] picked one of the toughest, factual cases I've ever dealt with to have somebody in [pro. per.] (Laughs.)"

Grabowski asserted that the arbitrator was " ‘yukking it up’ " with Kaiser's counsel and that his comments, especially his tone and laughter, showed his disrespect and disregard for Grabowski. She contended that the ex parte communication showed bias, which was grounds for disqualification. (See §§ 170.1, subd. (a)(6), 1281.91, subd. (d).) She also argued that the communication showed corruption, fraud, or other undue means that required vacating the award. (See § 1286.2, subd. (a)(1)-(3).)

Second, Grabowski contended the arbitrator failed to disclose two matters involving Kaiser where he accepted appointment as an arbitrator. Grabowski maintained that she would have sought to disqualify the arbitrator if these two matters had been disclosed. She argued that the arbitrator's failure to disclose the two matters breached his ethical obligations and constituted a further ground for vacating the award. (See § 1286.2, subd. (a)(6)(A).)

Third, Grabowski contended the arbitrator failed to grant a continuance of the arbitration hearing, despite her showing of good cause to do so. Grabowski wanted more time to speak with her surgeon about treatment for spine conditions she believed were caused by Kaiser's negligence. Grabowski argued the arbitrator's failure to grant a continuance substantially prejudiced her rights and was therefore grounds for vacating the award as well. (See § 1286.2, subd. (a)(5).)

Kaiser opposed the petition to vacate. It contended that the recorded ex parte communication was not improper because it did not involve the merits of the arbitration. It maintained that the communication was not derogatory, did not reveal any bias, and did not constitute misconduct. Kaiser also contended that the arbitrator had served notice of the two additional matters involving Kaiser on Grabowski's prior attorney, while he was still representing Grabowski. Regarding the continuance, Kaiser argued that Grabowski did not show good cause for a continuance because she did not link her spine treatment to Kaiser's alleged negligence with competent evidence. And, in any event, Grabowski had not shown that the arbitrator's failure to grant a continuance prejudiced her.

After hearing argument, the trial court issued a written statement of decision. It found that the ex parte communication was improper and unethical. The court wrote, "Though very short, this was not a general discussion about scheduling or administration. Rather, the conversation centered on [Grabowski]: Her pro per status, that the case is factually complicated and the potential for an adverse result as a consequence of lacking an attorney to assist her." However, the court found that Grabowski did not show how the communication "substantially prejudiced her...