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Hamilton v. Cooperative of American Physicians Inc./Mutual Protection Trust6/9/2005
h in turn would make applicable the discovery provisions in section 1286.05. Hamilton argues that the arbitrators incorrectly concluded this case did not arise out of a personal injury. According to Hamilton, even though his lawsuit is for breach of the implied covenant of good faith and fair dealing, the Tucker lawsuit involved a personal injury claim and the term "arising out of" should be interpreted broadly to include just such a circumstance. We need not consider the statutory construction of section 1283.1 because, even assuming that the arbitrators were mistaken, that mistake was not in excess of their powers.
Acting in excess of an arbitrator's power has a specific meaning. "Even where an arbitration agreement requires the arbitrator to apply a particular law or body of law, `an arbitrator's failure to apply such a law is not in excess of an arbitrator's powers within the meaning of [former] section 1286.2, subdivision (d) [now section 1286.2, subdivision (a)(4)].' " (Alexander v. Blue Cross of California (2001) 88 Cal.App.4th 1082, 1090 (Alexander), quoting Marsch v. Williams (1994) 23 Cal.App.4th 238, 244.) Where an arbitrator fails to adhere to the limits of her power of review, the arbitrator exceeds her powers. (California Faculty Assn. v. Superior Court (1998) 63 Cal.App.4th 935, 952.) Thus, for example, an arbitrator exceeds his power when he reexamines whether the parties are bound by a provision requiring arbitration. (Malek v. Blue Cross of Cal. (2004) 121 Cal.App.4th 44, 56.) An arbitrator exceeded his powers in awarding an unconstitutional gift of public funds which was unauthorized by law and which no court could confirm. (Jordan v. Department of Motor Vehicles (2002) 100 Cal.App.4th 431, 453.) "The pivotal question a court must answer when deciding whether an arbitrator exceeded his powers is whether the arbitrator had the authority to rule on a particular issue under the terms of the controlling arbitration agreement." (Kahn v. Chetcuti (2002) 101 Cal.App.4th 61, 65.) An arbitrator does not exceed his powers when he decides "an issue he was clearly authorized to decide." (Id. at p. 66.)
In Alexander, supra, 88 Cal.App.4th 1082, the court applied these principles in a case analogous to the present one. The Alexander court unequivocally held that once the issue of discovery is submitted to an arbitrator, a party cannot subsequently contend that the arbitrator exceeded his or her powers even if the arbitrator incorrectly decided the discovery issue. (Id. at p. 1089.) In Alexander, the arbitrator found that section 1283.1 was applicable, and therefore ordered discovery pursuant to section 1283.05. (Id. at p. 1088.) The arbitrator, however, did not apply a sanction as required under section 1283.05. (Ibid.) The Alexander court held that the failure to apply a mandatory sanction was not in excess of the arbitrator's powers. (Id. at p. 1090.) "Even where an arbitration agreement requires the arbitrator to apply a particular law or body of law, `an arbitrator's failure to apply such a law is not in excess of an arbitrator's powers within the meaning of [former] section 1286.2, subdivision (d) [now section 1286.2, subdivision (a)(4)].' " (Alexander, supra, at p. 1090, quoting Marsch v. Williams (1994) 23 Cal.App.4th 238, 244.)
Hamilton argues that, in contrast to Alexander, section 1286.1 not section 1286.05 is applicable here. However, that purported distinction is not accurate because the arbitrator in Alexander relied on section 1286.1 to find section 1286.05 to be applicable. While Alexander involved the decision not to apply a mandatory sanction, and this case involves the decision not to apply section 1286.1, both concern discovery determinations made by an arbitrato
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