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Lopez v. 21st Century Insurance Co.3/10/2003
ble person knowing all of the facts and looking at the circumstances at the present time would question the impartiality of the [arbitrator]." [Citation.]' [Citation.]" (Id. at p. 1512, original italics.)
Without abusing its discretion, the trial court could conclude that a reasonable person might, on the facts of this case, form an impression of possible bias on the arbitrator's part. Mr. Grayson was required but failed to disclose that he had served as an arbitrator in 18 prior cases in which defendant was a party between 1995 and 2001. It was not entirely clear whether Mr. Grayson had served in each of those cases as a neutral or as a party arbitrator. Moreover, Mr. Grayson provided no meaningful information about the results of those prior arbitrations. Keeping in mind that "we should, if anything, be even more scrupulous to safeguard the impartiality of arbitrators than judges" (Commonwealth, supra, 393 U.S. at p. 149), we conclude the trial court could reasonably find that under the circumstances of this case a reasonable person might entertain a doubt about Mr. Grayson's impartiality. No abuse of discretion occurred.
Finally, defendant did not raise any issue with respect to the waiver provisions of section 1281.9, subdivision (d) in the trial court nor on appeal. It is undisputed both that Mr. Grayson failed to comply with the disclosure requirements of section 1281.9, subdivision (a) and plaintiffs did not serve a timely disqualification notice pursuant to section 1281.9, subdivision (b). Moreover, by failing to serve a timely disqualification notice, plaintiffs waived the right to disqualify Mr. Grayson for failing to comply with the disclosure requirements. (ยง 1281.9, subd. (d).) However, that waiver did not limit plaintiffs' right to vacate the award under section 1286.2. We question the logic of the statutory waiver rule as applied to a case like that before us. Plaintiffs made no effort to enforce Mr. Grayson's disclosure obligations, but later sought to vacate the arbitration award on grounds that would earlier have been apparent had the required disclosure been made. However, as presently drafted, the statutes specifically allow such. Moreover, defendant has not raised any issue with respect to the waiver provision. Therefore, any issue concerning the waiver question has itself been waived. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.)
IV. DISPOSITION
The order vacating the arbitration award is affirmed. Plaintiffs, Julissa Lopez and Lourdes Lopez, are to recover their costs on appeal from defendant, 21st Century Insurance Company.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur:
ARMSTRONG, J.
MOSK, J.
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