Filed 9/30/20 Burke, Williams & Sorenson v. Pinot-Walsh CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
PUBLIC—REDACTED VERSION
Redacts material from sealed record. (Cal. Rules of Court, rules 8.45, 8.46(f)(1) and (f)(2).)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
BURKE, WILLIAMS & SORENSON LLP et al., H042868
(Santa Clara County
Plaintiffs and Respondents, Super. Ct. No. 1-13-CV257143)
v.
AMY PINTO-WALSH,
Defendant and Appellant.
I. INTRODUCTION
This appeal arises from an attorney fee dispute between appellant Amy
Pinto-Walsh and her former attorneys, respondents Burke, Williams & Sorenson (BWS)
and Ropers, Majeski, Kohn & Bentley (RMKB). The parties entered into a stipulation
and arbitration agreement to resolve the attorney fee dispute. After an arbitration
hearing, the arbitrator awarded BWS and RMKB a significant amount of attorney fees.
Pinto-Walsh filed a motion to vacate the arbitration award and BWS and RMKB
filed a motion to confirm the award. After considering both motions, the trial court
confirmed the arbitration award. The record reflects the arbitration award was entered on
September 18, 2015.
On appeal, Pinto-Walsh contends that the trial court erred in confirming the
arbitration award because (1) the arbitrator exceeded his powers by issuing an award in
violation of public policy; (2) the arbitrator acted outside his statutory and contractual
authority; (3) the arbitrator failed to disclose his relationships with the attorneys from
BWS and RMKB; and (4) the arbitrator failed to consider material evidence.1
For the reasons stated below, we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
In May 2012 Pinto-Walsh entered into an attorney-client fee agreement with
BWS. In June 2012 Pinto-Walsh entered into a second fee agreement with RMKB as
1
Nearly all of the record and the parties’ briefs on appeal were filed under seal
pursuant to this court’s orders of March 6, 2019 and April 30, 2019, in accordance with
the trial court’s sealing orders. On June 5, 2020, this court issued an order to show cause
why this court should not order the following items in the record on appeal to be unsealed
because the trial court’s order sealing the entire trial court record was overbroad and
failed to expressly find facts to support sealing the entire record. (Cal Rules of Court,
rule 2.550 (d).): All portions of the opening brief, respondent’s brief, and reply brief, and
all portions of the record filed on appeal that address or relate to the following issue
stated in the opening brief: “Whether the trial court erred in failing to vacate an
arbitration award where the arbitrator should have been disqualified for failing to disclose
whether he had professional or important personal relationships with one party and/or its
counsel.”
On August 31, 2020, this court issued a second order to show cause why certain
portions of the record and the parties’ briefs should be unsealed because the trial court’s
order sealing the entire trial court record was overbroad and failed to expressly find facts
to support sealing the entire record, and because unsealing is necessary for the filing of a
public redacted version of the court’s opinion in this matter. (Cal. Rules of Court,
rules 2.550(d), 8.45, 8.46(f)(1) & (f)(2).)
Having received no responses to the orders to show cause from respondents, and
having considered the responses of appellant, concurrent with the filing of this opinion,
we hereby order the records and briefs previously filed under seal be unsealed as follows:
(1) All portions of the opening brief, respondent’s brief, and reply brief, and all portions
of the record filed on appeal that address or relate to the following issue stated in the
opening brief: Whether the trial court erred in failing to vacate an arbitration award
where the arbitrator should have been disqualified for failing to disclose whether he had
professional or important personal relationships with one party and/or its counsel; (2)
Clerk’s transcript pages 103, 143; 146; 772; 600, 676, lines 2-9; 605, lines 11-12; 614,
lines 5-10; 615-616; 625, line 5; 118-119; 302-303; 306-308; 613, lines 12-18; 613, lines
22-27; 611, lines 22-23; (3) Opening brief pages 31, paragraph 1; 33; 36, paragraph 1; 38,
40-41; and (4) Respondent’s brief page 36.
The order unsealing portions of the record and the parties’ briefs does not affect
any continuing obligations of confidentiality in the underlying matter.
2
co-counsel to BWS. Both fee agreements concerned Pinto-Walsh’s claims in the
underlying matter.
Pinto-Walsh’s claims in the underlying matter were mediated in 2012. After the
mediation, an attorney-client conflict arose. Pinto-Walsh discharged BWS and RMKB as
her attorneys in the underlying matter and substituted the law firm of Bradshaw &
Associates (Bradshaw). Subsequently, Bradshaw informed BWS and RMKB that the
matter had settled.
The parties entered into a stipulation and arbitration agreement regarding the
attorney fee dispute that had arisen between Pinto-Walsh and her former attorneys in the
underlying matter, BWS and RMKB. Under the terms of the arbitration agreement, the
arbitrator was selected by JAMS, which assigned the Hon. William F. Martin (Ret.).
Judge Martin issued a November 13, 2013 arbitration award that awarded BWS
and RMKB a significant amount of attorney fees and costs. BWS and RMKB filed a
petition to confirm the arbitration award pursuant to Code of Civil Procedure
section 1285.2 In response, Pinto-Walsh filed a motion to transfer venue, which the trial
court denied. Pinto-Walsh also filed a petition to vacate the arbitration award.
The trial court issued the final statement of decision on September 18, 2015. After
considering the parties’ briefing and argument, and overruling Pinto-Walsh’s objections
to the tentative statement of decision, the trial court concluded that Pinto-Walsh “has
failed to submit sufficient evidence in support of any ground asserted in her Petition to
Vacate the Arbitration Award.”
The trial court’s specific rulings included, among others, rejection of
Pinto-Walsh’s contention that “Judge Martin had a pre-existing relationship, professional
or personal, with any RMKB lawyer was based purely on speculation” and a ruling that
Pinto-Walsh had failed to submit sufficient evidence showing that the arbitration award
2
All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.
3
was either unconscionable or violated the Professional Rules of Conduct. The trial court
also denied Pinto-Walsh’s request for a stay to conduct discovery into any relationship
between Judge Martin and RMKB partners Wilson and Ward.
Having determined that Pinto-Walsh failed to submit sufficient evidence in
support of any ground asserted in her petition to vacate the arbitration award, the trial
court granted the petition to confirm the arbitration award. The record reflects that
judgment was entered on September 18, 2015.
III. DISCUSSION
Pinto-Walsh contends on appeal that the trial court erred in confirming the
arbitration award because (1) the arbitrator exceeded his powers by issuing an award in
violation of public policy; (2) the arbitrator acted outside his statutory and contractual
authority; (3) the arbitrator failed to disclose his relationships with the attorneys from
BWS and RMKB; and (4) the arbitrator failed to consider material evidence.
BWS and RMKB argue that Pinto-Walsh has forfeited these contentions because
her briefs present only a one-sided statement of facts. (See Mendoza v. City of West
Covina (2012) 206 Cal.App. 4th 702, 714.) In light of the “ ‘ “guiding principle of
deciding cases on their merits,” ’ ” we will reach the merits of Pinto-Walsh’s contentions
despite any deficiencies in the briefs. (See Chavez v. 24 Hour Fitness USA, Inc. (2015)
238 Cal. App. 4th 632, 644.)
A. General Legal Principles and Standard of Review
Through the California Arbitration Act, set forth in Title 9 of the Code of Civil
Procedure (§ 1280 et seq.), the Legislature has expressed a “ ‘strong public policy in
favor of arbitration as a speedy and relatively inexpensive means of dispute resolution.’
[Citations.]” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9 (Moncharsh).)
“ ‘Because the decision to arbitrate grievances evinces the parties’ intent to bypass
the judicial system and thus avoid potential delays at the trial and appellate levels, arbitral
finality is a core component of the parties’ agreement to submit to arbitration.’ ” (Richey
4
v. AutoNation, Inc. (2015) 60 Cal.4th 909, 916 (Richey).) “[I]t is the general rule that
parties to a private arbitration impliedly agree that the arbitrator’s decision will be both
binding and final” (Moncharsh, supra, 3 Cal.4th at p. 9), and thus they agree to bear the
risk of an arbitrator’s mistake “in return for a quick, inexpensive, and conclusive
resolution to their dispute.” (Id. at p. 11.)
Accordingly, courts generally may not review arbitration awards for errors of fact
or law, “even when those errors appear on the face of the award or cause substantial
injustice to the parties.” (Richey, supra, 60 Cal.4th at p. 916.) “An award may be
vacated only for fraud, corruption, misconduct, an undisclosed conflict, or similar
‘circumstances involving serious problems with the award itself, or with the fairness of
the arbitration process.’ (Moncharsh, at p. 12; see § 1286.2, subd. (a).) Otherwise,
judicial corrections are limited to remedying ‘obvious and easily correctable mistake[s],’
‘technical problem[s],’ and actions in excess of authority so long as the correction leaves
the merits of the decision unaffected. (Moncharsh, at p. 13.)” (Heimlich v. Shivji (2019)
7 Cal.5th 350, 367 (Heimlich).)
“ ‘ “On appeal from an order confirming an arbitration award, we review the trial
court’s order (not the arbitration award) under a de novo standard. [Citations.] To 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.” ’ [Citations.]” (ECC Capital
Corp. v. Manatt, Phelps & Phillips, LLP (2017) 9 Cal.App.5th 885, 900 (ECC Capital).)
B. Violation of Public Policy
On appeal, Pinto-Walsh contends that the arbitration award must be vacated
because the arbitrator exceed his powers by issuing an award that contravenes the public
policy set forth in the Rules of Professional Conduct.
Section 1286.2, subdivision (a)(4) provides that an arbitration award shall be
vacated if the court determines that “[t]he arbitrators exceeded their powers and the
award cannot be corrected without affecting the merits of the decision upon the
5
controversy submitted.” “Arbitrators may exceed their powers by issuing an award that
violates a party’s unwaivable statutory rights or that contravenes an explicit legislative
expression of public policy. [Citations.]” (Richey, supra, 60 Cal.4th at p. 916.)
Our analysis is guided by the California Supreme Court’s decision in Moncharsh.
In Moncharsh, the arbitration concerned a fee-splitting agreement between a law firm and
Philip Moncharsh, a former firm attorney. (Moncharsh, supra, 3 Cal.4th at p. 7.) The
arbitrator determined that, with the exception of one client, the fee-splitting agreement
was not unconscionable and did not violate the Rules of Professional Conduct, and the
trial court confirmed the arbitration award. (Ibid.) After the appellate court affirmed the
judgment, the Supreme Court granted review to clarify when the trial court may review
an arbitrator’s decision. (Id. at p. 8.) The court ruled that “[i]t is the general rule that,
with narrow exceptions, an arbitrator’s decision cannot be reviewed for errors of fact or
law.” (Id. at p. 11.)
The Supreme Court in Moncharsh court also rejected Moncharsh’s public policy
argument. “Moncharsh contends, as he did before the arbitrator, that [the fee-splitting
agreement ] is illegal and violates public policy because, inter alia, it violates former
rules 2-107 [prohibiting unconscionable fees], 2-108 [prohibiting certain types of fee
splitting arrangements], and 2-109 [prohibiting agreements restricting an attorney’s right
to practice], of the Rules of Professional Conduct of State Bar. We perceive, however,
nothing in the Rules of Professional Conduct at issue in this case that suggests resolution
by an arbitrator of what is essentially an ordinary fee dispute would be inappropriate or
would improperly protect the public interest. Accordingly, judicial review of the
arbitrator’s decision is unavailable.” (Moncharsh, supra, 3 Cal.4th at pp. 32-33,
fn. omitted; see also Cotchett, Pitre & McCarthy v. Universal Paragon Corp. (2010) 187
Cal.App.4th 1405, 1418 [“To permit judicial review of the arbitrator’s award in this case
would be contrary to the strong policy favoring the finality of arbitration awards, even
6
though the amount [of attorney fees] awarded has been couched as a public policy
violation”].)
Under Moncharsh, supra, 3 Cal.4th at pages 11, 32-33, we determine that judicial
review of the arbitration award pursuant to section 1286.2, subdivision (a)(4) is not
required. Pinto-Walsh essentially argues unreviewable errors of fact or law in support of
her contention that the arbitrator exceeded his powers by issuing an award that
contravenes the public policy set forth in the Rules of Professional Conduct.
Even assuming, without deciding, that judicial review is available with respect to
the public policy issue, we find no merit in Pinto-Walsh’s contention that Judge Martin
exceeded his powers by issuing an arbitration award that contravenes the public policy
set forth in the Rules of Professional Conduct. Our standard of review limits us to
determining whether the trial court’s finding is supported by substantial evidence.
(See ECC Capital, supra, 9 Cal.App.5th at p. 900.) In our review, we must also “draw
every reasonable inference to support the award. [Citation.]” (Alexander v. Blue Cross
of California (2001) 88 Cal. App. 4th 1082, 1087.)
Based on the record before us, we determine that the trial court’s finding that the
arbitration award did not violate public policy is supported by substantial evidence.
(See ECC Capital, supra, 9 Cal.App.5th at p. 900.)
C. The Arbitrator’s Statutory and Contractual Authority
Pinto-Walsh contends that the trial court erred in confirming the arbitration award
because the arbitrator exceeded his statutory and contractual authority in awarding
attorney fees that did not comport with the parties’ fee agreements.
According to Pinto-Walsh, the arbitrator was required to apply the rules for
contract interpretation set forth in Civil Code section 1636 et seq. and enforce the plain
language of the BWS fee agreement. BWS and RMKB disagree, maintaining that the
California Supreme Court ruled in Advanced Micro Devices v. Intel Corp. (1994) 9
Cal.4th 362 (Advanced Micro Devices) and Moncharsh “that it is up to the arbitrator to
7
determine his/her scope of authority under the parties’ agreement to arbitrate and that the
courts must defer to the arbitrator’s determination of the scope of his/her authority.”
We agree that California Supreme Court authority governs our resolution of the issue of
whether, as Pinto-Walsh claims, Judge Martin exceeded his authority by failing to
enforce the terms of the BWS fee agreement in determining the award of attorney fees.
In Advanced Micro Devices, the Supreme Court addressed the scope of the
arbitrator’s authority to decide a breach of contract issue and fashion a remedy.
(Advanced Micro Devices, supra, 9 Cal.4th at pp. 366-367.) The court ruled that
“[a]rbitrators are not obliged to read contracts literally, and an award may not be vacated
merely because the court is unable to find the relief granted was authorized by a specific
term of the contract. [Citation.] The remedy awarded, however, must bear some rational
relationship to the contract and the breach. . . . Where the damage is difficult to
determine or measure, the arbitrator enjoys correspondingly broader discretion to fashion
a remedy. [Citation.] [¶] The award will be upheld so long as it was even arguably
based on the contract; it may be vacated only if the reviewing court is compelled to infer
the award was based on an extrinsic source. [Citations.] In close cases the arbitrator’s
decision must stand. [Citation.]” (Id. at p. 381.)
Regarding the arbitrator’s authority to fashion a remedy for breach of contract, the
court in Advanced Micro Devices instructed that “[t]he choice of remedy . . . may at
times call on any decision maker’s flexibility, creativity and sense of fairness. In
private arbitrations, the parties have bargained for the relatively free exercise of those
faculties. Arbitrators, unless specifically restricted by the agreement to following legal
rules, ‘ “may base their decision upon broad principles of justice and equity . . . .”
[Citations.]’ ” (Advanced Micro Devices, supra, 9 Cal.4th at pp. 374-375.)
More recently, the California Supreme Court confirmed that “[w]hen parties
contract to resolve their disputes by private arbitration, their agreement ordinarily
contemplates that the arbitrator will have the power to decide any question of contract
8
interpretation, historical fact or general law necessary, in the arbitrator’s understanding of
the case, to reach a decision.” (Gueyffier v. Ann Summers, Ltd. (2008) 43 Cal.4th 1179,
1184 (Gueyffier).) Thus, “[a]bsent an express and unambiguous limitation in the contract
or the submission to arbitration, an arbitrator has the authority to find the facts, interpret
the contract, and award any relief rationally related to his or her factual findings and
contractual interpretation. [Citations.]” (Id. at p. 1182; Heimlich, supra, 7 Cal.5th at
p. 358 [same].)
In the present case, the parties agreed to private arbitration to resolve their dispute
arising out of the BWS and RMKB fee agreements. Accordingly, Judge Martin, as the
arbitrator, had the authority to make factual findings, interpret the parties’ fee
agreements, and fashion any legal or equitable remedy that bore a rational relationship to
the fee agreements. (See Gueyffier, supra, 43 Cal.4th at p. 1182; Advanced Micro
Devices, supra, 9 Cal.4th at p. 381.) It cannot be disputed that Judge Martin’s attorney
fees award bears a rational relationship to the BWS and RMKB fee agreements.
Moreover, we are not persuaded by Pinto-Walsh’s contention that Judge Martin
exceeded his authority by failing to interpret the fee agreements under the rules for
contract interpretation set forth in Civil Code section 1636 et seq. and enforce the specific
terms of the agreements. As we have discussed, an arbitration award “is not ordinarily
reviewable for error by either the trial or appellate courts” (Moncharsh, supra, 3 Cal.4th
at p. 13) and “an award may not be vacated merely because the court is unable to find the
relief granted was authorized by a specific term of the contract” (Advanced Micro
Devices, supra, 9 Cal.4th at p. 381).
For these reasons, we find no merit in Pinto-Walsh’s contention that the arbitration
award must be vacated because Judge Martin exceeded his contractual and statutory
authority.
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D. Arbitrator Bias
Pinto-Walsh contends that the trial court erred in denying her petition to vacate the
arbitration award because Judge Martin “failed, and even refused, to disclose professional
and extensive personal relationships” with the RMKB attorneys, and for that reason
Judge Martin should have been disqualified.
1. Background
In her petition to vacate the arbitration award, Pinto-Walsh asserted that her
investigator had discovered substantial evidence of Judge Martin’s relationships with
RMKB attorneys that Judge Martin had failed to disclose. The investigator reported in
his declaration that Judge Martin and a RMKB partner, Richard K. Wilson, had graduated
from the University of California, Berkeley, in the same year; Judge Martin and Wilson
both worked as district attorneys in Northern California in 1977-1978; Wilson had
practiced criminal defense in the geographical area where Judge Martin was a district
attorney; RMKB partner Dennis J. Ward had been a pro tem judge and litigator in Santa
Clara County and had worked with the Santa Clara judiciary for 30 years; and Judge
Martin’s former spouse and Ward’s spouse worked in the same nursing field in the same
area for decades.
In opposition to the petition to vacate the arbitration award, attorney Wilson stated
in his supporting declaration that he did not have a personal or professional relationship
with Judge Martin; he did not know Judge Martin when they were both students at the
University of California, Berkeley; he did not work with Judge Martin when they were
assistant district attorneys in different counties (Solano and Santa Clara); he never
appeared before Judge Martin when he was on the bench; he has never socialized with
Judge Martin; and he did not submit a letter of recommendation when Judge Martin
applied for a judgeship.
Attorney Ward stated in his declaration in support of the opposition to the petition
to vacate the arbitration award that he did not have a personal or professional relationship
10
with Judge Martin; he tried a case before Judge Martin 20 years ago; he has never
socialized with Judge Martin or members of his family; his wife has no professional or
personal relationship with any member of Judge Martin’s family; and he did not submit a
letter recommending Judge Martin for a judgeship.
The trial court found, as set forth in the statement of decision, that “[w]hen Judge
Martin was assigned as the Arbitrator, Judge Martin made timely and complete
disclosures of any relationship with all lawyers at RMKB. Richard K. Wilson and
Dennis J. Ward were at all relevant times Partners at RMKB[.] RMKB was a party to the
stipulation to arbitrate. At the time JAMS served its initial disclosures, any and all
conflicts with RMKB were disclosed, including each and every RMKB office and
attorney. That disclosure revealed that Judge Martin did not have a single conflict of
interest related to any lawyer at any office of RMKB.”
The trial court further found that “[f]ollowing the arbitration hearing,
[Pinto-Walsh] made a request for a specific disclosure as to RMKB partner Dennis J.
Ward. Judge Martin complied with this request and provided a supplemental disclosure
specific to Dennis J. Ward. This supplemental disclosure was consistent with the initial
disclosure as to all RMKB lawyers provided at the commencement of the arbitration.
The Court finds that there is no evidence of a relationship between Judge Martin and any
attorney at RMKB requiring disclosure.”
In conclusion, the trial court stated that Pinto-Walsh “failed to submit sufficient
evidence in support of her claim that she was prejudiced by the alleged failure by Judge
Martin to submit a timely disclosure, or a specific disclosure as to Dennis J. Ward.
[Pinto-Walsh]’s claim that Judge Martin had a pre-existing relationship, professional or
personal, with any RMKB lawyer was based purely on speculation. [Pinto-Walsh] failed
to submit any evidence in support of her claim that Judge Martin was biased in favor of
RMKB.”
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2. Analysis
The California Supreme Court has stated the grounds for disqualification of an
arbitrator: “The statutory scheme, in seeking to ensure that a neutral arbitrator serves as
an impartial decision maker, requires the arbitrator to disclose to the parties any grounds
for disqualification. Within 10 days of receiving notice of his or her nomination to serve
as a neutral arbitrator, the proposed arbitrator is required, generally, to ‘disclose all
matters that could cause a person aware of the facts to reasonably entertain a doubt that
the proposed neutral arbitrator would be able to be impartial.’ (§ 1281.9, subd. (a).)
Based upon these disclosures, the parties are afforded an opportunity to disqualify the
proposed neutral arbitrator. (§ 1281.91, subds. (b), (d).) If an arbitrator ‘failed to
disclose within the time required for disclosure a ground for disqualification of which the
arbitrator was then aware,’ the trial court must vacate the arbitration award. (§ 1286.2,
subd. (a)(6)(A).)” (Haworth v. Superior Court (2010) 50 Cal.4th 372, 381 (Haworth),
italics added.)
“The applicable statute and standards enumerate specific matters that must be
disclosed. The arbitrator must disclose specified relationships between the arbitrator and
the parties to the arbitration, including involvement in prior arbitrations, an
attorney-client relationship with any attorney involved in the arbitration, and any
significant personal or professional relationship with a party or an attorney involved in
the arbitration. (§ 1281.9, subd. (a)(3)-(6).) The arbitrator also must disclose ‘any
ground specified in Section 170.1 for disqualification of a judge,’ as well as ‘matters
required to be disclosed by the ethics standards for neutral arbitrators adopted by the
Judicial Council.’ (§ 1281.9, subd. (a)(1), (2); see Cal. Rules of Court, Ethics Stds. for
Neutral Arbitrators in Contractual Arbitration (Ethics Standards).) The Ethics Standards
require the disclosure of ‘specific interests, relationships, or affiliations’ and other
‘common matters that could cause a person aware of the facts to reasonably entertain a
doubt that the arbitrator would be able to be impartial.’ (Ethics Stds., com. to std. 7.)
12
Specific matters that must be disclosed include, for example, the arbitrator’s financial
interest in a party or the subject of the arbitration, the arbitrator’s knowledge of disputed
facts relevant to the arbitration, and the arbitrator’s ‘membership in any organization that
practices invidious discrimination on the basis of race, sex, religion, national origin, or
sexual orientation.’ (Ethics Stds., std. 7(d)(13); id., std. 7(d)(9), (10), & (12).)”
(Haworth, supra, 50 Cal.4th at p. 381.)
Pinto-Walsh contends that her petition to vacate the arbitration award should have
been granted because there was an appearance of possible bias due to Judge Martin’s
“extensive links to Mr. Wilson and Mr. Ward,” and his “refusal to address any personal
and professional relationships with them.” She also contends the arbitration award
should be vacated so she can conduct discovery as to the past professional and personal
relationships between Judge Martin and the RMKB attorneys, “including whether either
had a hand in preparing Judge Martin’s judicial application prior to his appointment to
the bench in 1989.”
BWS and RMKB argue there is no merit in Pinto-Walsh’s contention of arbitrator
bias, since, as shown by their declarations, there is no evidence of any relationship
between Judge Martin and the RMKB attorneys, Wilson and Ward.
In Haworth, the California Supreme Court instructed that “ ‘[a]n impression of
possible bias in the arbitration context means that one could reasonably form a belief that
an arbitrator was biased for or against a party for a particular reason.’ [Citation.]”
(Haworth, supra, 50 Cal.4th at p. 389.) The court also instructed that the de novo
standard of review applied to “issues concerning arbitrator disclosure . . . .” (Id. at
p. 388.)
Applying the de novo standard, we agree with the trial court that Pinto-Walsh
presented no evidence to support a reasonable belief that Judge Martin was biased against
Pinto-Walsh because he had a “significant personal or professional relationship” with
either attorney Wilson or attorney Ward. (See Haworth, supra, 50 Cal.4th at p. 381.)
13
Pinto-Walsh’s investigator discovered that Judge Martin and Wilson attended the same
large university at the same time, and that Judge Martin served on the bench in the same
geographical area that Wilson and Ward practiced law. As the trial court found,
Pinto-Walsh’s claim of a disqualifying personal or professional relationship between
Judge Martin and either Wilson or Ward on the basis of this evidence is mere speculation.
Our review of the available record shows that, to the contrary, Judge Martin, Wilson, and
Ward and their families had no relationships at all, with the exception of the insignificant
relationship of Ward trying a case before Judge Martin 20 years ago.
Accordingly, we determine that the trial court did not err in denying the petition to
vacate the arbitration award on the ground of arbitrator bias and denying Pinto-Walsh’s
request for further discovery.
E. Evidentiary Error—Exclusion of Expert Opinion
Finally, Pinto-Walsh contends that the arbitration award must be vacated because
Judge Martin refused to hear and consider material evidence, consisting of the opinion of
one of her experts regarding attorney fees.
The trial court determined that “[Pinto-Walsh] failed to submit sufficient evidence
in support of her claim that the Arbitrator excluded material evidence or that [she] was
substantially prejudiced therefrom.”
Section 1286.2, subdivision (a)(5) provides in part that the court shall vacate an
arbitration award when “[t]he rights of the party were substantially prejudiced by . . . the
refusal of the arbitrators to hear evidence material to the controversy . . . .”
However, “vacation of an award for ‘refusal . . . to hear evidence material to the
controversy’ (§ 1286.2, subd. (a)(5)) must rest on more than a simple error in applying
the rules of evidence. . . . [S]ection 1286.2 subdivision (a)(5), ‘if not properly limited,
could swallow the rule that arbitration awards are generally not reviewable on the merits.’
The provision is not ‘a back door to Moncharsh through which parties may routinely test
the validity of legal theories of arbitrators.’ [Citation.] Instead, it was designed as a
14
‘safety valve in private arbitration that permits a court to intercede when an arbitrator has
prevented a party from fairly presenting its case.’ [Citation.] It comes into play, for
example, when an arbitrator, without justification, permits only one side to present
evidence on a disputed material issue. [Citation.] The Arbitration Act codifies ‘the
fundamental principle that “[a]rbitration should give both parties an opportunity to be
heard.” [Citation.] . . . [T]he opportunity to be heard must be extended to all parties
equitably.’ [Citation.]” (Heimlich, supra, 7 Cal.5th at pp. 368-369.)
We determine that Pinto-Walsh has not shown that Judge Martin’s exclusion of
certain expert opinion was prejudicial, for two reasons. First, the record reflects that
Pinto-Walsh was not prevented from presenting evidence on the issue. (See (Heimlich,
supra, 7 Cal.5th at pp. 368-369.) Second, “section 1286.2, subdivision (a)(5) does not
contemplate vacation of an award merely because arbitrators refuse to consider evidence
they find legally irrelevant, even if the irrelevance determination rests upon an incorrect
legal foundation. [Citations.]” (Id. at p. 369.)
We are also not persuaded by Pinto-Walsh’s reliance on the decision in Burlage v.
Superior Court (2009) 178 Cal.App.4th 524). According to Pinto-Walsh, the present
case is “nearly identical” to Burlage, where the appellate court ruled that the arbitration
award should be vacated because the arbitrator had made a legal error and consequently
excluded relevant evidence. (Id. pp. 529-530.) However, the decision in Burlage was
disapproved by our Supreme Court in Heimlich, supra, 7 Cal.5th at page 370.
F. Evidentiary Error—Exclusion of Value-Added Evidence
Pinto-Walsh also contends that Judge Martin made a prejudicial evidentiary error
by refusing to consider the evidence of the value added by Bradshaw’s contribution in
obtaining the settlement.
The trial court found that Pinto-Walsh had not shown that she was not given
adequate time to present evidence during the arbitration hearing. Accordingly, the trial
court concluded that Pinto-Walsh had failed to submit sufficient evidence in support of
15
her-claim that she was substantially prejudiced by Judge Martin’s decision to deny her
motion to reopen the evidence after the conclusion of the hearing.
Pinto-Walsh asserts that she was prejudiced because Judge Martin struck all of her
evidence regarding the value added by Bradshaw. However, as BWS and RMKB note,
the record reflects that Judge Martin only struck the post-arbitration evidence that Pinto-
Walsh sought to admit regarding the value of Bradshaw’s contribution.
We therefore find no merit in Pinto-Walsh’s conclusory assertion that she was
prejudiced by Judge Martin’s exclusion of the evidence regarding the value of
Bradshaw’s contribution.
IV. DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondents.
16
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ELIA, J.
WE CONCUR:
_______________________________
PREMO, Acting P. J.
_______________________________
DANNER, J.
H042868
Burke, Williams & Sorenson LLP et al. v. Pinto-Walsh