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Adams v. Torbarina2/13/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
INTRODUCTION
Plaintiff appeals the denial of her petition to vacate an arbitration award based on corruption of a neutral arbitrator for failing to disclose substantial business relationships with another arbitrator, with an attorney representing the defendant, and with other members of that attorney's law firm. Plaintiff did not provide evidence of matters that the neutral arbitrator should have disclosed, and the neutral arbitrator's disclosure did not reveal dealings that might create an impression of possible bias. Plaintiff also claims her party arbitrator lacked authority to select the neutral arbitrator, but she later withdrew that objection and is bound by the allegation in her verified petition that she appointed that party arbitrator, who therefore had authority to select a neutral arbitrator. We conclude that the trial court did not abuse its discretion in denying plaintiff's ex parte motion for a continuance to take discovery of the neutral arbitrator, when plaintiff made that ex parte motion five days before the hearing on the petition and did not meet her burden of showing diligence in attempting to obtain discovery or that discovery was likely to produce evidence of arbitrator bias. The trial court correctly denied the petition to vacate, and we affirm a judgment for defendant.
FACTUAL AND PROCEDURAL HISTORY
Milka Torbarina, M.D. provided medical services for Christine Adams pursuant to a written agreement, which required the parties to arbitrate medical malpractice claims. Adams brought a medical malpractice claim against Torbarina for battery arising out of a surgery Torbarina performed in 1994.
The arbitration agreement required each party to select a "party arbitrator" and the two party arbitrators to select a third "neutral arbitrator." Torbarina appointed Theodore Hammond as party arbitrator; Adams appointed Michael Moorehead, and later replaced Moorehead with C. Snyder Patin. Patin's September 24, 1997, letter to Hammond suggested his four choices for neutral arbitrators, one of which was former Supreme Court Justice David Eagleson. Hammond's October 14, 1997, letter advised Justice Eagleson he was appointed neutral arbitrator.
Justice Eagleson accepted the appointment in an October 20, 1997, letter to Hammond, Patin, Adams's counsel Frances Diaz, and Torbarina's counsel Don Fesler, of the firm of La Follette, Johnson, DeHaas, et al. Concerning disclosure, the letter stated:
"By way of disclosure please be advised as follows:
"1. I have sat as a co-arbitrator with Mr. Hammond in the past, I was the neutral.
"2. I do not know Frances Diaz.
"3. I arbitrated a case one time where Mr. Fesler represented the respondent, but I do not recall the outcome. There have been other occasions when I have served as the neutral arbitrator in cases where the La Follette firm was defending the respondent, and I have also mediated cases where the La Follette firm was representing one of the parties.
"4. I mediated a case several years ago where Mr. Patin represented the respondent. He used to appear before me when I sat in Department 1 in the Los Angeles Superior Court 1978-82, but I never tried a case in which he was involved.
"5. I do not know the claimant.
"6. I do not know the responde
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