Cox v. Bonni

Filed 12/17/18
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

LISA COX, B279476

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. LC094661)
v.

ARAM BONNI,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of
Los Angeles, Frank J. Johnson and Huey P. Cotton, Judges.
Affirmed.
Law Offices of Ramin R. Younessi, Ramin R. Younessi and
David Z. Sohn for Plaintiff and Appellant.
Carroll, Kelly, Trotter, Franzen, McKenna & Peabody,
Richard D. Carroll, David P. Pruett; Schmid & Voiles,
Denise H. Greer and Kathleen D. McColgan for Defendant
and Respondent.
_________________________
 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

2
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

1 We granted John Cox’s request to dismiss his appeal and
he is not a party here. For simplicity, in this opinion we use
“plaintiff” in the singular when describing the arbitration and
trial court proceedings. In so doing we do not intend to suggest
that John Cox was not also a party to those proceedings.

3
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

4
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

2Undesignated statutory citations are to the Code of Civil
Procedure.

5
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

6
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 arbitrator’s conduct during the proceedings.
Plaintiff argued that the neutral arbitrator had failed to disclose
his prior arbitrations and mediations involving Carroll Kelly and
also had failed to disclose the two ex parte communications with

7
defense counsel about which plaintiff’s counsel had inquired on
December 31, 2015 and January 9, 2016. Plaintiff further argued
that the neutral arbitrator’s other disclosures were improper,
that the neutral arbitrator tried to interfere with the plaintiff
party arbitrator’s dissent to the award, that the neutral
arbitrator improperly included Judicate West’s president in
discussions regarding the plaintiff party arbitrator’s dissent, and
that the neutral arbitrator threatened plaintiff’s counsel in his e-
mail response to the inquiry regarding ex parte communications.
Plaintiff’s counsel filed a declaration in support of the motion to
vacate, stating among other things that his office never received
any disclosures from the neutral arbitrator regarding his prior
involvement with Carroll Kelly. The plaintiff party arbitrator
also filed a declaration stating that he never received such
disclosures either.
Defendant opposed the motion, arguing among other things
that the neutral arbitrator had made all required disclosures,
and attaching in support the January 23, 2015 disclosures listing
the neutral arbitrator’s previous involvement with Carroll Kelly.
In reply, plaintiff argued that the disclosures lacked a proof of
service or declaration from the purported sender authenticating
them and thus were inadmissible.
On the day of the hearing on the motion, defendant filed a
declaration from an employee of Judicate West asserting that
he had sent the January 23 disclosures to the parties. The
declaration attached another copy of the disclosures along with
the proof of service. The trial court ordered the parties to provide
supplemental briefing addressing the timing of the disclosures
and whether plaintiff’s counsel received them.

8
 Plaintiff in her supplemental brief acknowledged for the
first time that her counsel received the January 23 disclosures,
and plaintiff’s counsel so admitted in an attached declaration, but
plaintiff argued that the disclosures were untimely.
After reviewing the supplemental briefing and hearing
argument, the trial court vacated the award. The court found
that the January 23 disclosures, made three months after Carroll
Kelly substituted in, were untimely, and defendant “never
addresse[d] head on the reason the disclosure was made so late.”
The court further ruled that, although the two ex parte
communications between the neutral arbitrator and defendant’s
counsel pertained to “administrative matters,” the neutral
arbitrator failed to disclose them and thus vacation was proper
under section 1286.2, subdivision (a)(6) or, alternatively,
subdivision (a)(3). 3

3 The trial court’s tentative ruling, which the court adopted
as its final order following the hearing, contained two parts, one
drafted before the parties provided supplemental briefing and one
drafted after. The result is confusing, because the first part
reflected the trial court’s finding at the time, in light of the
declarations of plaintiff’s counsel and her party arbitrator, that
the neutral arbitrator had never disclosed his relationship with
Carroll Kelly, whereas the second part reflected the trial court’s
later finding that the neutral arbitrator had provided the
disclosures, but they were untimely. Also, despite plaintiff’s
counsel’s admission to the contrary in the supplemental briefing,
the second part continued to state that plaintiff’s counsel denied
receiving the January 23 disclosures.

9
E. Motion for reconsideration
Defendant moved for reconsideration of the order vacating
the award. Defendant argued that plaintiff had shifted positions
in her supplemental briefing and had raised for the first time the
argument that the neutral arbitrator’s disclosures were untimely.
Defendant offered purportedly new evidence in the form of
declarations attempting to explain why the neutral arbitrator’s
disclosures were filed late and to show that defense counsel had
no improper ex parte communications with the neutral
arbitrator. One declaration, from the neutral arbitrator’s case
manager at Judicate West, claimed that the case manager first
learned of Carroll Kelly’s substitution on December 9, 2014, and
verified the substitution around January 12, 2015, at which point
Judicate West generated the disclosures that the neutral
arbitrator reviewed and signed on January 23, 2015.
Defendant further argued that Baxter v. Bock (2016)
247 Cal.App.4th 775 (Baxter), published the day before defendant
filed his supplemental brief, constituted new law justifying
reconsideration. Defendant also argued that plaintiff had
forfeited her objection to the neutral arbitrator’s late disclosures
by not raising it until after the arbitration award had issued.
Plaintiff opposed the motion, arguing that defendant’s
“new” facts could have been presented in opposition to the motion
to vacate, Baxter relied on existing case law, and the trial court
properly considered plaintiff’s argument that the disclosures were
untimely.
At the beginning of the hearing on the motion for
reconsideration, the trial court issued a tentative ruling denying
the motion. The court then heard argument. In addition to the
parties, the neutral arbitrator himself appeared in pro per,

10
stating, “It’s my professional ox that’s being gored here.” The
neutral arbitrator argued that he properly disclosed the ex parte
communication regarding costs because he mentioned it in the
final award provided to the parties. He further argued that,
although his disclosures regarding Carroll Kelly were untimely,
plaintiff did not seek to disqualify him once plaintiff received the
disclosures, and only raised the issue after the neutral arbitrator
ruled in defendant’s favor.
The trial court stated that it was “satisfied that there’s
sufficient basis for reconsideration, both legally and factually,
and I’m going to grant the request for reconsideration.” The
court then confirmed the arbitration award without further
hearing or evidence. When plaintiff’s counsel asked the court to
explain why it had reversed its position from the tentative ruling,
the court said, “The argument, as articulated by [the neutral
arbitrator], makes clear that there was no prejudice and that the
untimeliness of the initial . . . disclosure [of the neutral
arbitrator’s prior relationship with Carroll Kelly] was matched by
the untimeliness of the objection to that disclosure.” The court
continued: “[W]ith respect to [the] ex parte communication,
that . . . was disclosed within five days. That point was never
brought to the court’s attention.”
The trial court entered judgment in favor of defendant.
Plaintiff timely appealed.

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 DISCUSSION

A. The Trial Court Properly Granted The Motion To
Compel Arbitration

1. Standard of Review
An order granting a petition to compel arbitration may be
reviewed on appeal from a subsequent judgment on the award.
(Ashburn v. AIG Financial Advisors, Inc. (2015) 234 Cal.App.4th
79, 94; §§ 1294, subd. (d), 1294.2.) We review for substantial
evidence a trial court’s determination that a valid arbitration
agreement exists between the parties. (Rice v. Downs (2016)
248 Cal.App.4th 175, 185.) We review de novo the trial court’s
interpretation of the agreement in the absence of any factual
dispute or conflicting evidence regarding the terms of the
agreement. (Ibid.) The determination of whether a party has
waived the right to arbitrate is generally a question of fact, also
reviewed under the substantial evidence standard. (St. Agnes
Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187,
1196 (St. Agnes).) Under this standard, “[w]e infer all necessary
findings supported by substantial evidence [citations] and
‘construe any reasonable inference in the manner most
favorable to the judgment, resolving all ambiguities to support
an affirmance.’ ” (Lewis v. Fletcher Jones Motor Cars, Inc.
(2012) 205 Cal.App.4th 436, 443.)

12
 2. Plaintiff Fails to Show Error in the Trial
Court’s Implicit Finding that the Arbitration
Agreement Satisfied the Requirements of
Section 1295, Subdivision (b)
Section 1295 contains mandatory provisions for medical
malpractice arbitration agreements. (See § 1295, subds. (a), (b);
Rosenfield v. Superior Court (1983) 143 Cal.App.3d 198, 200
(Rosenfield).) As relevant here, subdivision (b) requires that
certain language appear immediately before the signature line of
the agreement “in at least 10-point bold red type.” 4 A medical
malpractice arbitration agreement that fails to contain the
mandatory provisions of section 1295, including the requirement
of subdivision (b), is unenforceable. (Rosenfield, supra,
143 Cal.App.3d at p. 200.)
Plaintiff does not dispute that the arbitration agreements
at issue here contained the language required under
section 1295, subdivision (b), but argues that defendant failed to
present evidence that the language appeared in red type.
Plaintiff asserts that defendant “should have produced the
original [agreement] with [plaintiff’s] ink signature. Without this
original document, [defendant] cannot meet his burden to prove
the existence of a valid arbitration agreement.”

4 The language required to be in bold red type is:
“ ‘NOTICE: BY SIGNING THIS CONTRACT YOU ARE
AGREEING TO HAVE ANY ISSUE OF MEDICAL
MALPRACTICE DECIDED BY NEUTRAL ARBITRATION AND
YOU ARE GIVING UP YOUR RIGHT TO A JURY OR COURT
TRIAL. SEE ARTICLE 1 OF THIS CONTRACT.’ ” (§ 1295,
subd. (b).)

13
 Plaintiff’s argument is copied nearly verbatim from her
opposition to the petition to compel arbitration filed in the
trial court. Plaintiff fails to address, or even mention, that in
response to her opposition, defendant filed a declaration from his
counsel purportedly attaching a color copy of one of the two
arbitration agreements, and stating that counsel would provide a
color copy of the second agreement at the hearing on the petition
to compel. Plaintiff’s rehashing of her trial court arguments,
without acknowledgement and discussion of subsequent events
and developments, is grounds to deny her challenge. (See Pacific
Corporate Group Holdings, LLC v. Keck (2014) 232 Cal.App.4th
294, 313, fn. 16 (Pacific Corporate) [appellate court may deem
contention abandoned when appellant fails “ ‘to completely and
fairly summarize the evidence supporting the [trial] court’s
findings and judgment’ ”].)
Plaintiff further obscures the issue by not providing in the
appellant’s appendix a color copy of the agreement attached to
defendant’s counsel’s declaration, making it impossible to confirm
plaintiff’s claim that the agreement lacked the red type. Nor does
plaintiff address, or the record disclose, whether defendant
provided a color copy of the second agreement at the hearing. As
the party challenging the underlying trial court order, plaintiff
has the burden “ ‘to provide an adequate record to assess error.’ ”
(Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) Her
failure to do so is another basis to reject her challenge. (Ibid.)
To the extent plaintiff is arguing that a party seeking to
compel arbitration must provide the original signed arbitration
agreement as opposed to a copy, she cites no authority for this
proposition, and indeed courts have held that to prove the
existence of an arbitration agreement, “it is generally

14
sufficient . . . to present a copy of the [arbitration agreement]
to the court.” (Baker v. Italian Maple Holdings, LLC (2017)
13 Cal.App.5th 1152, 1160.)
As we mentioned above, the parties did not address the
issue of the red type at the hearing on the petition to compel
arbitration, and the trial court did not rule expressly on the
question. However, a trial court’s order is presumed to be correct,
and we will infer the trial court made all the necessary factual
findings to support its order, including that the agreements
conformed to the statutory requirements. (Roman v. Superior
Court (2009) 172 Cal.App.4th 1462, 1479, fn. 4 (Roman), citing
Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1134.)
3. Plaintiff Fails to Show Error in the Trial
Court’s Implicit Finding that Plaintiff Read and
Understood the Arbitration Agreements
Plaintiff argues that the arbitration agreements at issue
are void because plaintiff did not read and understand them.
“ ‘Ordinarily when a person with capacity of reading and
understanding an instrument signs it, he may not, in the absence
of fraud, imposition or excusable neglect, avoid its terms on the
ground he failed to read it before signing it.’ ” (Ramirez v.
Superior Court (1980) 103 Cal.App.3d 746, 754 (Ramirez).)
Ramirez held, however, that a party could invalidate a
medical malpractice arbitration agreement by “show[ing] that he
or she was coerced into signing or did not read the many waiver
notices provided and did not realize that the agreement was an
agreement to arbitrate.” (Id. at p. 756.) The Ramirez court
warned that such a showing would be difficult: A plaintiff would
“have to explain how her eyes avoided the 10-point red type above
the signature line; she will have to explain why she did not ask

15
questions about what she was signing; she will have to show that
no one explained the document to her or asked her to read it
before signing it; and she will have to explain why she did not
rescind the agreement within 30 days after it was signed,” as
permitted under section 1295, subdivision (c). (Ramirez, supra,
103 Cal.App.3d at pp. 756-757.)
Plaintiff claims that she did not recall seeing an arbitration
agreement in the stack of documents provided by defendant’s
staff, and “was told to sign [the documents] without ever once
reading any of them.” Plaintiff also asserts the staff never told
her she could receive treatment even if she declined to sign the
arbitration agreement.
Plaintiff cites no evidence in the record in support of
her factual assertions, which is grounds to deem her
argument waived. (Duarte v. Chino Community Hospital (1999)
72 Cal.App.4th 849, 856.) To the extent she intends to rely on the
declaration she filed in the trial court in support of her opposition
to the motion to compel arbitration, it is insufficient to satisfy the
showing required by Ramirez. Although the declaration asserted
that plaintiff signed the agreements without reading them, and
that defendant’s staff did not advise her to read them, plaintiff
fails to explain, for example, “why she did not ask questions
about what she was signing” or “why she did not rescind the
agreement within 30 days after it was signed.” (Ramirez, supra,
103 Cal.App.3d at pp. 756-757.)
As with plaintiff’s claim regarding the lack of red type, the
trial court did not rule expressly on the question of plaintiff’s
understanding of the arbitration agreements, nor did the parties
raise the issue during the hearing. We presume the trial court
made all the necessary factual findings to support its order,

16
including that plaintiff understood what she was signing.
(See Roman, supra, 172 Cal.App.4th at p. 1479, fn. 4.) Plaintiff’s
unsupported assertions on appeal cannot overcome that
presumption.

4. Plaintiff Fails to Show Error in the Trial
Court’s Finding that Defendant Did Not Waive
His Right to Arbitration
Plaintiff argues that even if the arbitration agreements
were valid, defendant waived his right to arbitrate by
unreasonably delaying his petition until April 2012, seven
months after being served with the first amended complaint, and
engaging in litigation conduct inconsistent with an intent to
arbitrate. We disagree.
California law “reflects a strong policy favoring arbitration
agreements,” and therefore “waivers are not to be lightly inferred
and the party seeking to establish a waiver bears a heavy burden
of proof.” (St. Agnes, supra, 31 Cal.4th at p. 1195.) Factors
relevant to a determination of waiver include: “ ‘ “(1) whether
the party’s actions are inconsistent with the right to arbitrate;
(2) whether ‘the litigation machinery has been substantially
invoked’ and the parties ‘were well into preparation of a lawsuit’
before the party notified the opposing party of an intent to
arbitrate; (3) whether a party either requested arbitration
enforcement close to the trial date or delayed for a long period
before seeking a stay; (4) whether a defendant seeking
arbitration filed a counterclaim without asking for a stay of the
proceedings; (5) ‘whether important intervening steps [e.g.,
taking advantage of judicial discovery procedures not available in
arbitration] had taken place’; and (6) whether the delay ‘affected,
misled, or prejudiced’ the opposing party.” ’ ” (Id. at p. 1196,

17
quoting Sobremonte v. Superior Court (1998) 61 Cal.App.4th 980,
992 (Sobremonte).)
Our Supreme Court has held that participation in
litigation, by itself, does not result in waiver, absent a showing of
prejudice by the party opposing arbitration. (St. Agnes, supra,
31 Cal.4th at p. 1203.) Prejudice is ordinarily found only where
the petitioning party’s conduct has “substantially undermined”
the public policy of favoring arbitration as a speedier and less
expensive means of resolving disputes or “substantially impaired
the other side’s ability to take advantage of the benefits and
efficiencies of arbitration.” (Id. at p. 1204.) “For example, courts
have found prejudice where the petitioning party used the
judicial discovery processes to gain information about the other
side’s case that could not have been gained in arbitration
[citations]; where a party unduly delayed and waited until the
eve of trial to seek arbitration [citation]; or where the lengthy
nature of the delays associated with the petitioning party’s
attempts to litigate resulted in lost evidence.” (Ibid.)
As an initial matter, plaintiff once again fails “ ‘to
completely and fairly summarize the evidence supporting the
[trial] court’s findings and judgment.’ ” (Pacific Corporate, supra,
232 Cal.App.4th at p. 313, fn. 16.) Specifically, plaintiff fails to
mention in her brief the evidence that defendant sent her a letter
demanding arbitration on February 8, 2012, approximately two
months after defendant answered the complaint, and labeled
subsequent discovery requests as pertaining to that arbitration
as opposed to the proceedings in the trial court. Plaintiff also
fails to mention the evidence put forth by defendant that she
never responded to the demand, necessitating the later motion to
compel. Thus, plaintiff’s suggestion that defendant waited until

18
April 2012 to assert his right to arbitrate is not well taken, and
her omission of relevant facts is grounds to deem her argument
abandoned. (Ibid.)
We also agree with the trial court that plaintiff did not
demonstrate prejudice from defendant’s delay in asserting his
right to arbitration. Plaintiff claims she was prejudiced by “the
cost, time, and resources expended in litigating in the superior
court for . . . seven months.” She argues that defendant
propounded multiple discovery requests that would not have been
available in arbitration. She contends that these actions
frustrated the purpose of arbitration by driving up costs and
causing delay. Plaintiff further argues that had she “known
earlier that she did not have a right to a jury trial, her tactical or
strategic approach to litigation would have changed accordingly.”
Plaintiff’s assertions do not demonstrate prejudice.
“Because merely participating in litigation, by itself, does not
result in waiver, courts will not find prejudice where the party
opposing arbitration shows only that it incurred court costs and
legal expenses.” (St. Agnes, supra, 31 Cal.4th at p. 1203.)
The fact that plaintiff expended money and resources in the
trial court does not establish prejudice.
Plaintiff also fails to show that defendant took advantage of
discovery procedures not available in arbitration, because the
arbitration agreements at issue here expressly granted the
parties the same ability to obtain discovery that they would have
in the trial court. The arbitration agreements provided that
discovery would be conducted pursuant to section 1283.05, under
which parties to an arbitration have the same right to obtain
discovery “as if the subject matter of the arbitration were pending
before a superior court of this state in a civil action other than a

19
limited civil case.” (§ 1283.05, subd. (a).) Plaintiff notes that,
unlike in the trial court, section 1283.05, subdivision (e) requires
the parties to seek leave from the arbitrator before taking
depositions. The arbitration agreements here, however, stated
that “depositions may be taken without prior approval of the
neutral arbitrator,” thus eliminating the only difference between
judicial discovery and discovery under section 1283.05.
The discovery provisions in the arbitration agreements
distinguish this case from those cited by plaintiff, Sobremonte,
supra, 61 Cal.App.4th 980, and Davis v. Continental Airlines, Inc.
(1997) 59 Cal.App.4th 205 (Davis). In those cases, the courts
found that “defendants used the discovery processes of the court
to gain information about plaintiff’s case which defendants could
not have gained in arbitration. After obtaining discovery from
plaintiff by court processes, defendants then belatedly sought to
change the game to arbitration, where plaintiff would not have
equivalent discovery rights.” (Davis, supra, 59 Cal.App.4th
at p. 215; see Sobremonte, supra, 61 Cal.App.4th at p. 996,
quoting Davis.) Although plaintiff speculates that the arbitrators
would have “limit[ed] the scope of discovery so as to streamline
the process,” the trial court reasonably could infer from the terms
of the agreements that the parties’ ability to conduct discovery
would be the same whether in arbitration or the superior court.
Plaintiff’s statement that “her tactical or strategic
approach” would have been different had she known the case
would be arbitrated is conclusory, with no explanation as to how
her approach would differ. Her statement, without more, fails to
demonstrate prejudice.
Plaintiff argues that defendant’s conduct prior to filing his
petition to compel arbitration was “inconsistent with an intent to

20
arbitrate [the] suit,” noting that defendant demanded a jury trial
in his answer, propounded “extensive” discovery, responded to
plaintiff’s discovery, failed to request arbitration in his case
management statement, failed to raise arbitration in multiple
trial court appearances, and moved to continue the trial date just
before filing his petition to compel arbitration. By these
actions—some occurring after defendant notified plaintiff of his
intent to arbitrate—defendant did nothing more than engage in
litigation. Without the requisite showing of prejudice, this is
conduct the Supreme Court has expressly held does not give
rise to waiver. (St. Agnes, supra, 31 Cal.4th at p. 1203.) The
trial court did not err in concluding that defendant had not
waived his right to arbitrate.

B. The Trial Court Properly Confirmed The Arbitration
Award
Plaintiff challenges the trial court’s order confirming the
arbitration award, arguing that the neutral arbitrator failed to
comply with the statutory disclosure requirements for his prior
work with Carroll Kelly and his ex parte communications with
defendant’s counsel. Plaintiff contends the trial court properly
vacated the award on this basis, and erred when it confirmed the
award upon reconsideration. We disagree.
We review a trial court’s order confirming an arbitration
award de novo. (Lindenstadt v. Staff Builders, Inc. (1997) 55
Cal.App.4th 882, 892, fn. 7.) However, “[t]o the extent that the
trial court’s ruling rests upon a determination of disputed factual
issues, we apply the substantial evidence test to those issues.”
(Ibid.)

21
 1. Plaintiff’s Objection to the Arbitrator’s
Disclosures Was Untimely
“In seeking to ensure that a neutral arbitrator serves as an
impartial decision maker, the statutory scheme requires the
arbitrator to disclose to the parties any ground for
disqualification.” (United Health Centers of San Joaquin Valley,
Inc. v. Superior Court (2014) 229 Cal.App.4th 63, 74-75
(United Health).) “Section 1281.9, subdivision (a) provides a list
of potentially disqualifying information to which the parties are
entitled.” (United Health, supra, 229 Cal.App.4th at p. 75,
quoting § 1281.9, subd. (a) (2).) Among other things, an
arbitrator must disclose specified information about prior and
pending matters in which he or she served or is serving as
an arbitrator or mediator and in which a party or a lawyer
for a party in the current arbitration was or is involved.
(United Health, supra, at p. 76; § 1281.9, subd. (a)(2)-(4);
Cal. Rules of Court, Ethics Standards for Neutral Arbitrators in
Contractual Arbitration (Ethics Standards), std. 7(d)(4)-(5).)
An arbitrator’s duty to disclose continues throughout the
proceeding: “If an arbitrator subsequently becomes aware of a
matter that must be disclosed . . . , the arbitrator must disclose
that matter to the parties in writing within 10 calendar days
after the arbitrator becomes aware of the matter.” (Ethics
Standards, std. 7(c)(2).) Section 1286.2, subdivision (a)(6)
requires a trial court to vacate an award if an arbitrator “failed
to disclose within the time required for disclosure a ground for
disqualification of which the arbitrator was then aware.”
(§ 1286.2, subd. (a)(6); United Health, supra, 229 Cal.App.4th
at p. 75.)

22
 While failure to disclose properly a ground for
disqualification generally mandates vacation of the award, this
rule only applies if the party moving to vacate “had no reason to
know of the existence of a nondisclosed matter.” (United Health,
supra, 229 Cal.App.4th at p. 85.) If a party is “aware that a
disclosure is incomplete or otherwise fails to meet the statutory
disclosure requirements,” the party “cannot passively reserve the
issue for consideration after the arbitration has concluded.”
(Ibid.)
This principle is illustrated by Dornbirer v. Kaiser
Foundation Health Plan, Inc. (2008) 166 Cal.App.4th 831
(Dornbirer). In Dornbirer, an arbitrator disclosed to the parties
in advance of the arbitration that he had served as an arbitrator
in previous matters involving the defendant. (Id. at pp. 836-837.)
After the arbitrator ruled in the defendant’s favor, the plaintiff
moved to vacate the award under section 1286.2. (Dornbirer,
supra, 166 Cal.App.4th at p. 835.) The plaintiff contended the
disclosure was unclear as to how many matters involving the
defendant the arbitrator had served in, and did not include the
details required under section 1281.9 such as the dates of those
arbitrations, what awards were granted, and what other
attorneys were involved. (Dornbirer, supra, at p. 836.)
The Court of Appeal rejected the plaintiff’s argument. The
court reasoned that the disclosure, however inadequate, “put [the
plaintiff] on notice that [the arbitrator] had served as an
arbitrator in a number of cases in which [the defendant] was a
party.” (Dornbirer, supra, 166 Cal.App.4th at p. 842.) Despite
this knowledge, the plaintiff “agreed to go forward with the
arbitration. Allowing [the plaintiff] to successfully petition to
vacate the arbitration award in this case, at this stage of the

23
proceedings . . . would undermine the statutory scheme. Under
[the plaintiff’s] interpretation, a party could simply hold off on
raising the issue of the completeness of the arbitrator’s
disclosure, wait to see if he or she is pleased with the arbitration
award, and, if unhappy with the award, challenge the award on
the basis” of the incomplete disclosure. (Id. at pp. 842-843.)
In the instant case, we conclude that although the neutral
arbitrator did not provide his disclosures within the time
required by statute, plaintiff forfeited her challenge by not
objecting to the disclosures until after the award issued.
Plaintiff’s counsel admitted that he received the neutral
arbitrator’s disclosures in January 2015. Plaintiff’s counsel also
knew several months earlier that Carroll Kelly had substituted in
as defendant’s counsel. Thus, plaintiff’s counsel was on notice
that the neutral arbitrator’s disclosures were potentially
untimely, having been served more than 10 days after the
substitution occurred. Plaintiff took no action, however, until the
arbitration panel issued an award in defendant’s favor, some 10
months later, at which point plaintiff attempted to vacate the
award based on the neutral arbitrator’s purported failure to
disclose. Under United Health and Dornbirer, plaintiff cannot do
so. The trial court thus erred when it vacated the award based
on the neutral arbitrator’s untimely disclosures, and correctly
held upon reconsideration that plaintiff’s objection was itself
untimely. 5

5 In the section of her opening brief summarizing the
procedural history of the case, plaintiff claims that other
disclosures the neutral arbitrator made earlier in the proceedings
were also statutorily deficient in that they lacked certain

24
 In her opening brief, plaintiff offers no argument to the
contrary other than to quote extensively from the trial court’s
original order vacating the award. 6 As we have explained, that
earlier order was in error. Moreover, plaintiff’s argument is
misleading because she primarily quotes from the first section of
the vacation order, in which the trial court, based on
representations by plaintiff’s counsel and her party arbitrator,
incorrectly concluded that the neutral arbitrator had failed to
provide any disclosures at all. (See fn. 4, ante.) Plaintiff also
states in her summary of the case’s procedural history, in
boldface and italicized font, that “After Carroll Kelly
substituted in, [the neutral arbitrator] did not provide any
disclosures regarding his work and other history with
Carroll Kelly.” This is inaccurate—upon review of additional
evidence the trial court concluded that the neutral arbitrator had
provided the disclosures, as plaintiff’s counsel ultimately
admitted. Plaintiff’s briefing thus does not “ ‘completely and
fairly summarize the evidence supporting the [trial] court’s

required advisory language. Plaintiff makes no arguments based
upon the purported deficiencies, and notably does not assert that
the deficiencies alone would support vacating the award. We
thus decline to address the purported deficiencies further.
6 Plaintiff purports to incorporate by reference her
arguments from her memorandum of points and authorities filed
in the trial court in support of her motion to vacate the award.
“It is inappropriate for an appellate brief to incorporate by
reference arguments contained in a document filed in the trial
court.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th
830, 854.) We disregard plaintiff’s arguments to the extent she
did not include them in her opening brief. (Ibid.)

25
findings and judgment,’ ” which is grounds to reject her
challenge. (Pacific Corporate, supra, 232 Cal.App.4th at p. 313,
fn. 16.)
In her reply brief, plaintiff argues that while she may have
forfeited the right to disqualify the neutral arbitrator by not
timely objecting to his late disclosures, she did not thereby forfeit
the right to vacate the award, which she contends is a separate
right. She notes that, under section 1281.91, subdivision (c), a
party must seek to disqualify an arbitrator within 15 days of the
arbitrator’s failure to provide the required section 1281.9
disclosures, or else the party waives the right to disqualify
(absent certain exceptions not applicable here). But, plaintiff
further notes, that same subdivision states that it shall not
“ ‘limit the right of a party to vacate an award pursuant to
Section 1286.2.’ ” Plaintiff contends this provision establishes
that “forfeiting a right to disqualify the [arbitrator] does not
prevent vacatur of the award.” She further asserts that
Dornbirer and United Health “only discuss disqualification, not
vacatur.”
Plaintiff mischaracterizes Dornbirer and United Health,
both of which involved challenges to orders either granting or
denying motions to vacate arbitration awards. (See Dornbirer,
supra, 166 Cal.App.4th at p. 834; United Health, supra,
229 Cal.App.4th at p. 68.) Dornbirer expressly discussed
section 1281.91, subdivision (c), and concluded that “to permit a
party to vacate an arbitration award at the conclusion of the
arbitration” based on a deficiency in the arbitrator’s disclosures
of which the party was aware and yet took no action to address
“would undermine the purpose of the time limitations imposed”

26
in section 1281.91, subdivision (c). (Dornbirer, supra, at p. 846;
see United Health, supra, at p. 78 [analyzing Dornbirer].)
We agree. In stating that the provisions of section 1281.91
do not limit a party’s right to vacate an award under
section 1286.2, it cannot have been the intent of the
Legislature thereby to permit a party to hold a known ground
for disqualification in reserve, ready to play as a trump card
once the award issued. As Dornbirer concluded, such an
interpretation would render the time limits in section 1281.91
meaningless, to say nothing of the unfairness to the other parties
to the arbitration.

2. The Arbitrator’s Ex Parte Communications
With Defendant’s Counsel Were Insufficient to
Justify Vacating the Award
Ethics Standards, standard 14 (standard 14) governs ex
parte communications in contractual arbitration. Under
standard 14(a), “[a]n arbitrator must not initiate, permit, or
consider any ex parte communications or consider other
communications made to the arbitrator outside the presence of all
of the parties concerning a pending or impending arbitration,
except as permitted by this standard, by agreement of the
parties, or by applicable law.” Standard 14(b) provides that “An
arbitrator may communicate with a party in the absence of other
parties about administrative matters, such as setting the time
and place of hearings or making other arrangements for the
conduct of the proceedings, as long as the arbitrator reasonably
believes that the communication will not result in a procedural or
tactical advantage for any party. When such a discussion occurs,
the arbitrator must promptly inform the other parties of the
communication and must give the other parties an opportunity to

27
respond before making any final determination concerning the
matter discussed.”
In its order vacating the award, the trial court concluded
that the two ex parte communications identified by plaintiff
pertained to “administrative matters” under standard 14(b),
but that the neutral arbitrator had failed to disclose them. The
trial court found this failure justified vacation under section
1286.2, subdivision (a)(6), for nondisclosure of a ground for
disqualification, or, alternatively, subdivision (a)(3), which
requires a court to vacate an award if a party’s rights “were
substantially prejudiced by misconduct of a neutral arbitrator.”
Upon reconsideration, however, the trial court found that
the neutral arbitrator had disclosed the communication regarding
defendant’s waiver of section 998 costs in the written final award,
thus complying with standard 14. The trial court did not address
the second ex parte communication, in which the neutral
arbitrator and defendant’s counsel discussed their mutual
availability for the previously scheduled arbitration; however, we
may infer from its ruling that it found that nondisclosure of that
communication did not justify vacating the award.
The trial court’s ruling upon reconsideration was correct.
As to the communication regarding defendant’s waiver of costs, it
is questionable whether disclosing the communication in the final
award satisfied standard 14(b), when plaintiff was not given “an
opportunity to respond” before the award was finalized. We need
not resolve that issue, however, because even if the neutral
arbitrator had not disclosed the communication at all, vacation
would not be warranted under section 1286.2, subdivisions (a)(3)
and (6), the provisions cited in the trial court’s prior order and by
plaintiff on appeal.

28
 Section 1286.2, subdivision (a)(3) requires vacation when
an arbitrator’s misconduct “substantially prejudiced” a party.
We do not condone the neutral arbitrator’s failure to include
plaintiff’s counsel in the communications regarding waiver of
costs prior to issuing the final award. Plaintiff, however, does not
claim she suffered any prejudice thereby, and given that the
communication took place after the arbitrators issued the interim
award, which did not differ materially from the final award, it
could not have affected the award itself.
We further hold that failure to disclose the communication
regarding waiver of costs was not a “ground for disqualification”
under section 1286.2, subdivision (a)(6). Section 1281.91,
subdivision (a) states that failure to comply with the disclosure
requirements of section 1281.9 is grounds for disqualification.
Section 1281.9, subdivision (a)(2), in turn, incorporates the
disclosures required by the Ethics Standards, which would
include standard 14. But courts have held that “not every item of
information that is required to be disclosed under section 1281.9
constitutes a ‘ground for disqualification’ as the term is used in
section 1286.2.” (Dornbirer, supra, 166 Cal.App.4th at p. 842;
accord, United Health, supra, 229 Cal.App.4th at p. 77.)
In Dornbirer, for example, the Court of Appeal held that,
although section 1281.9 requires arbitrators to disclose detailed
information regarding past arbitrations involving the parties or
their attorneys, failure to disclose those details does not mandate
vacation of the award. (Dornbirer, supra, 166 Cal.App.4th
at p. 842.) Rather, section 1286.2, subdivision (a)(6) mandates
vacation only when an arbitrator “fail[s] to disclose the existence
and nature of any relationship between the arbitrator and the
parties or the parties’ attorneys, not the specifics of each

29
relationship.” (Dornbirer, supra, at p. 842, italics added.) The
Dornbirer court reasoned that to conclude otherwise would lead
to absurd results, with arbitration awards vacated based on
minor omissions of details. (Ibid.) We similarly conclude that
section 1286.2 cannot be read to require vacation of an award
when an arbitrator fails to disclose an ex parte communication
waiving section 998 costs that did not prejudice the other party.
The record also supports the trial court’s implicit finding
that the award should be confirmed despite the neutral
arbitrator’s failure to disclose the ex parte communication with
defendant’s counsel regarding their mutual availability for the
previously scheduled arbitration. In the e-mail to the neutral
arbitrator inquiring about that communication, plaintiff’s counsel
stated that he first learned of it from defendant’s counsel “the
weekend before the arbitration.” Thus, plaintiff’s counsel knew of
the communication before the arbitration began, yet waited until
the arbitration panel issued the award before inquiring further
and objecting to the communication. Plaintiff therefore forfeited
any challenge to the award on that basis. (See Dornbirer, supra,
166 Cal.App.4th at pp. 842-843.)

3. Plaintiff Has Not Presented Properly on Appeal
Her Additional Arguments in Support of
Vacating the Award, and They Lack Merit
In the introduction to her opening brief on appeal, plaintiff
copies nearly verbatim from her motion to vacate the award in
the trial court, and in so doing states several purported examples
of arbitrator misconduct raised in the trial court, but upon which
the trial court did not base its original vacation order. Plaintiff
claims “[t]he award was procured by undue means, corruption,
fraud or other misconduct” because, according to plaintiff, the

30
neutral arbitrator resisted including the plaintiff party
arbitrator’s dissent along with the award, breached
confidentiality by including Judicate West’s president in
discussions regarding the dissent, complained about the plaintiff
party arbitrator’s written assessment of the case, and
“threatened [plaintiff’s] counsel” when plaintiff’s counsel inquired
by email about the ex parte contacts. Plaintiff summarizes the
purported facts underlying these claims in the procedural history
section of her appellate brief. Plaintiff again refers to these
claims in her reply brief, arguing that the trial court’s order
confirming the award was not based on substantial evidence
because it ignored plaintiff’s other evidence of “bias and non-
disclosure” apart from the neutral arbitrator’s late-filed
disclosures, including the breach of confidentiality by involving
Judicate West’s president in discussions and the e-mail plaintiff
claims “threatened [her] counsel.”
Plaintiff has not presented these arguments properly on
appeal. The additional points raised in her introduction and
summary of the procedural history are not included in the
argument section of her opening brief, nor does she support those
points with either argument or citation to authority elsewhere in
the brief. (See Cal. Rules of Court, rule 8.204(a)(1)(B).) Her
attempt to rectify this in her reply brief is unavailing. (See
Telish v. State Personnel Bd. (2015) 234 Cal.App.4th 1479, 1487,
fn. 4 [“An appellant’s failure to raise an argument in the opening
brief waives the issue on appeal.”].)
Even if plaintiff had presented these arguments properly,
they would not warrant reversal of the judgment. Whether the
purported acts occurred, and if so, whether they were sufficiently
indicative of misconduct, fraud, or corruption to negate the award

31
were questions of fact within the purview of the trial court. The
trial court acknowledged these additional purported acts in its
order vacating the award but did not assert them as a basis for
vacation. Instead, it based its ruling on the neutral arbitrator’s
untimely disclosures and ex parte communications. The
trial court did not refer to the additional acts again when it
reconsidered its earlier order and confirmed the award. We infer
the trial court continued to conclude that the additional acts were
insufficient to justify vacating the award. The trial court was
entitled to make this determination as the finder of fact, and we
will not disturb its finding on appeal. In so holding, once again,
we do not condone the neutral arbitrator’s conduct; in particular,
the neutral arbitrator’s e-mail to plaintiff’s counsel warning him
“to be careful who you accuse of engaging in unethical behavior”
was unprofessional strong-arming.
C. The Trial Court Properly Reconsidered The Order
Vacating The Award
In addition to challenging the merits of the trial court’s
order confirming the arbitration award, plaintiff argues that the
order was procedurally erroneous because defendant’s motion for
reconsideration did not comply with the strict requirements of
section 1008. She also contends it was error for the trial court to
allow the neutral arbitrator to present argument and for the trial
court to rely on that argument in granting reconsideration. We
conclude that the trial court properly granted reconsideration on
its own motion, which was not subject to the requirements of
section 1008. Although we agree it was error for the trial court to
allow the neutral arbitrator to argue in favor of reconsideration,
that error was not prejudicial.

32
 1. The Trial Court Properly Granted
Reconsideration on Its Own Motion
“Section 1008, subdivision (a) requires that a motion for
reconsideration be based on new or different facts, circumstances,
or law. A party seeking reconsideration also must provide a
satisfactory explanation for the failure to produce the evidence at
an earlier time.” (New York Times Co. v. Superior Court (2005)
135 Cal.App.4th 206, 212 (New York Times).) A trial court
may not grant a party’s motion for reconsideration that
does not comply with section 1008. (New York Times, supra,
135 Cal.App.4th at p. 211, citing Le Francois v. Goel (2005)
35 Cal.4th 1094, 1096, 1108 (Le Francois).) However,
section 1008 imposes no limits on “a court’s ability to reconsider
its previous interim orders on its own motion, so long as it gives
the parties notice that it may do so and a reasonable opportunity
to litigate the question.” (Le Francois, supra, at pp. 1096-1097.)
The parties here argue as to whether defendant’s motion
was based on “new or different facts, circumstances, or law.”
These arguments are beside the point, because it is evident the
trial court did not reconsider its order based on any of the
purportedly new law or facts in defendant’s motion, but on its
own realization that its earlier order was in error, as permitted
by Le Francois. (See In re Marriage of Barthold (2008) 158
Cal.App.4th 1301, 1308 (Barthold) [“Le Francois simply requires
that the trial court reconsider a prior ruling based on its own
realization that the ruling was erroneous, and not based upon a
determination that the motion to reconsider should itself be
granted on its merits”].)
In granting reconsideration, the trial court did not refer to
the purportedly new evidence and law raised by defendant’s

33
motion, but only the arguments raised by the neutral arbitrator
at the hearing on the motion. The trial court stated, “I’m
persuaded by what [the neutral arbitrator] has argued.” When
explaining its reasoning for reconsideration, it referred to the
points, “as articulated by [the neutral arbitrator],” that plaintiff
failed to object to the neutral arbitrator’s untimely disclosure,
and that one of the ex parte communications was disclosed in the
written award. These arguments were based on facts available
to the trial court at the time it initially ordered the award
vacated, and indeed could have been raised by defendant when
he opposed plaintiff’s motion to vacate. (See Barthold, supra,
158 Cal.App.4th at p. 1314 [reconsideration on trial court’s own
motion must be based on evidence submitted with original motion
being reconsidered].)
Thus, the trial court did not grant reconsideration based on
the purportedly new law and facts defendant put forth in its
motion for reconsideration, but on the trial court’s own authority
after it reexamined the existing evidence in light of the neutral
arbitrator’s arguments. Plaintiff offers no argument to the
contrary, other than to make the conclusory statement that the
trial court did not grant the motion under its own authority. On
this record, we must disagree.
We acknowledge that the trial court stated at the hearing
that it was “grant[ing] the request for reconsideration,” and the
judgment signed by the trial court stated “the Court granted the
motion for reconsideration of defendant Aram Bonni, M.D.” This
does not affect our conclusion that the trial court reconsidered its
prior ruling under its own authority. In Barthold, the trial court
issued an order stating “[t]he motion for reconsideration is
granted,” but the Court of Appeal held that the trial court

34
had granted the motion on its own authority. (Barthold, supra,
158 Cal.App.4th at pp. 1308-1309.) The appellate court noted
that the trial court had not based its ruling on any purportedly
“new” evidence submitted in the motion for reconsideration, but
on evidence the trial court had before it when it made its original
order. (Id. at p. 1309.) The trial court’s order also referenced
the court’s inherent authority to reconsider its prior rulings.
(Id. at pp. 1306, 1309.) Under those circumstances, the Barthold
court concluded that in stating that the motion for
reconsideration was granted, “the [trial] court simply meant
that it was providing the relief sought by the motion, and
did not mean to say that it was granting the motion itself.”
(Id. at p. 1309.)
We reach the same conclusion here. Although the
trial court did not invoke its inherent authority expressly, in
context, it was clear the trial court did so. The trial court did not
grant defendant’s motion on the merits, but only the relief sought
by that motion. (Barthold, supra, 158 Cal.App.4th at p. 1309.)

2. Any Error in Permitting the Arbitrator to
Argue Before the Trial Court Was Harmless
Plaintiff argues that it was improper for the neutral
arbitrator to argue before the trial court, citing, among other
things, the ethical rules for arbitrators and the Evidence Code.
She also objects that the trial court deprived her of an
opportunity to “obtain witnesses who would provide testimony
contrary to [the neutral arbitrator]’s assertions and argument” by
confirming the award without further hearing or evidence.
Evidence Code section 703.5 broadly prohibits arbitrators
from “testify[ing], in any subsequent civil proceeding, as to any
statement, conduct, decision, or ruling, occurring at or in

35
conjunction with” an arbitration over which they presided. There
are limited exceptions to this prohibition, one of which permits an
arbitrator to provide testimony that “addresses [a] charge of bias,
partiality or improper conduct.” (Betz v. Pankow (1993)
16 Cal.App.4th 919, 927.)
Here, the proceedings in the trial court concerned the
neutral arbitrator’s purported improper conduct, thus potentially
implicating the exception noted above. It does not appear to us,
however, that the neutral arbitrator merely testified. The record
demonstrates that he propounded legal argument as if he were
an advocate for defendant, pointing out, for example, plaintiff’s
failure to timely object to his late disclosures. This was improper,
and the trial court erred in allowing the neutral arbitrator to do
so.
We nonetheless hold that the error was harmless. “[T]he
California Constitution requires that in any case in which a trial
judge reconsiders an erroneous order, and enters a new order
that is substantively correct, the resulting ruling must be
affirmed regardless of any procedural error committed along the
way.” (Barthold, supra, 158 Cal.App.4th at p. 1313.) Here the
trial court’s order confirming the award was substantively
correct. The undisputed evidence showed that the neutral
arbitrator provided the disclosures required by law, and plaintiff
did not timely object to the lateness of those disclosures. As for
the ex parte communications, to the extent the neutral arbitrator
did not disclose them properly, neither constituted a ground for
disqualification nor substantially prejudiced plaintiff. Thus, the
trial court’s original order vacating the award was in error, and
the trial court correctly confirmed the award upon
reconsideration.

36
 Plaintiff claims she was “deprived of any opportunity to
challenge anything that [the neutral arbitrator] argued,”
suggesting that the trial court should have granted further
briefing or hearing. Plaintiff does not, however, explain what she
might have offered that would have undercut the trial court’s
ruling. The neutral arbitrator’s arguments were based on
undisputed evidence of which plaintiff was well aware, and
plaintiff suggests no other evidence she might have introduced if
given further opportunity. To the extent the trial court deprived
plaintiff of an opportunity to challenge the neutral arbitrator’s
legal arguments, this appeal has provided plaintiff with that
opportunity, and her arguments have not persuaded us. Thus, a
remand for further hearing would serve no purpose.

DISPOSITION
The judgment is affirmed. Defendant is awarded his costs
on appeal.
CERTIFIED FOR PUBLICATION.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

CHANEY, J.

37