Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, George H. Wu, Judge.
Nathaniel J. Friedman for Plaintiffs and Appellants.
Arnold & Porter, Lawrence A. Cox, Brian K. Condon; Taylor Blessey, N. Denise Taylor and Julianne M. DeMarco for Defendants and Respondents.
KITCHING, J.
INTRODUCTION
Plaintiffs appeal a judgment confirming an arbitration award for defendants after the trial court denied plaintiffs’ petition to vacate the arbitration award. We conclude that because plaintiffs failed to raise a timely claim that the arbitration clause was invalid and unenforceable because of defendants’ non-compliance with disclosure requirements in Health and Safety Code section 1363.1, plaintiffs forfeited that claim on appeal. In addition, plaintiffs have failed to show that any grounds in Code of Civil Procedure section 1286.2 required vacation of the award because of arbitrator bias. Finally, we find that the trial court’s evidentiary rulings did not abuse its discretion. We affirm the judgment.
Unless otherwise specified, statutes in this opinion will refer to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL HISTORY
The Parties:
On August 12, 2005, plaintiffs M. Christina Moreno and Molly A. Moreno, a minor, by her guardian ad litem Rafael Moreno, filed a complaint alleging causes of action for rescission of contract, wrongful life, professional negligence, fraud, and bad faith breach of contract against defendants Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, Inc. (Kaiser) and eighteen individual defendants whom the complaint identified as licensed physicians, surgeons, or registered nurse practitioners employed by Kaiser. The complaint contained the following allegations.
The Complaint:
The arbitrator granted defendants’ motion for nonsuit for all causes of action other than the wrongful life cause of action. That cause of action was tried before the arbitrator. The complaint alleged that before September 2, 1999, Kaiser entered into an agreement with the City of Los Angeles, the employer of Rafael Moreno, as to which agreement he and his family (M. Christina Moreno and Molly A. Moreno) were third-party creditor beneficiaries. The complaint alleged that no plaintiffs received a copy of the contract between Kaiser and the City of Los Angeles. M. Christina Moreno, age 37, had RH negative blood type and had three prior spontaneous abortions. In spring and summer of 1999, M. Christina Moreno was pregnant with Molly A. Moreno. The complaint alleged that defendants failed to refer M. Christina Moreno to a perinatologist, failed to follow their own management plan, failed to diagnose and timely treat human chorionic gonadotropin abnormalities, and refused to schedule delivery at a level III maternal-fetal specialty unit. The complaint alleged that as a proximate result of Kaiser’s refusal to pay for medically required specialty services and providers, Molly A. Moreno developed cerebral palsy after delivery.
The wrongful life cause of action alleged that while Cristina Moreno was in their exclusive care and control, defendants did not obtain, and afforded Cristina Moreno no opportunity to exercise, voluntary and informed consent to defendants’ care and treatment. Before and after the September 2, 1999, birth of Molly Moreno, Cristina Moreno employed defendants to diagnose and treat her high-risk pregnancy and to do all things necessary for the care of herself and her fetus, including pre-natal care, delivery, and post-delivery care. The complaint alleged that defendants willfully or negligently examined and cared for Cristina Moreno and Molly Moreno while in utero, so that the probable genetic defect from which she suffers was not diagnosed, and Molly Moreno was diagnosed on March 20, 2000, with cerebral palsy. The complaint alleged that but for defendants’ failure to inform Cristina Moreno that she carried a fetus that was probably genetically compromised, Cristina Moreno would have terminated the pregnancy and Molly Moreno would not have been born.
The Arbitration Clause:
The complaint alleged that Rafael Moreno never received the Kaiser Permanente “Evidence of Coverage” for the City of Los Angeles. Defendants, however, provided evidence that Kaiser’s 1999 Evidence of Coverage contained a “Binding Arbitration” clause stating in relevant part: “Any dispute, except for Small Claims Court cases, shall be submitted to binding arbitration if: [¶] . . . [¶] 3. The claim arises from or is related to an alleged violation of any duty incident to or arising out of or relating to this [Evidence of Coverage], including any claim for medical or hospital malpractice, for premises liability, or relating to the coverage for, or delivery of, services or items, irrespective of the legal theories upon which the claim is asserted. [¶] For all claims subject to this arbitration provision, both Claimants and Respondents give up the right to a jury or court trial, and accept the use of binding arbitration.”
The Parties’ Stipulation, and the Trial Court’s Order, Submitting the Matter to Binding Arbitration:
In a “stipulation to submit to binding arbitration and stay action pending arbitration,” plaintiffs and defendants stipulated “to stay further proceedings in the above-entitled action as to these parties until arbitration of the claims and controversies alleged herein have been completed in accordance with the procedure for arbitration of actions set forth in the contractual arrangements between these parties. [¶] The parties also agree that this stipulation is without prejudice in that claimants will be afforded all rights as if the case were ordered into arbitration by the court. Additionally, the parties agree the case will be arbitrated with one single neutral arbitrator whose fees will be paid by Respondents.” The parties’ attorneys signed this stipulation. In an order filed on October 19, 2005, the trial court, pursuant to this stipulation and in accordance with section 1280 et seq., ordered proceedings stayed until arbitration of the claims was completed.
Arbitration:
The parties agreed on retired United States District Court Judge John F. Davies to serve as the single neutral arbitrator, but Judge Davies resigned as arbitrator because of a family illness. Retired Superior Court Judge Sherman W. Smith, Jr., replaced Judge Davies as arbitrator. Judge Smith filed required declarations pursuant to section 1281.9, subdivision (a)(2).
Before the arbitration, scheduled for July 24, 2006, Judge Smith heard various contested matters. One of these concerned defendants’ motion to augment the expert witness list to substitute Tam Asrat, M.D., instead of a previously designated expert witness, Michael Nageotte, M.D., who defendants asserted was not available to testify on the date of the arbitration. Plaintiffs opposed the motion. Judge Smith granted the motion to augment the expert witness list to substitute Dr. Asrat, required Kaiser to make Dr. Asrat available for deposition by plaintiffs’ attorney, and ordered Kaiser to bear the costs of the reporter and for the expert witness’s appearance, up to a two-hour limit. Plaintiffs’ attorney agreed to this order.
The arbitration was held from July 24 to 28, 2006. At the close of plaintiffs’ case, the arbitrator granted defendants’ motion for nonsuit for all causes of action other than the wrongful life cause of action. With regard to the wrongful life cause of action, the arbitrator issued an award on August 11, 2006, in favor of defendants. It concluded that plaintiffs had not sustained their burden of proving that Kaiser physicians were liable for Molly Moreno’s condition caused by their failure to possess and exercise that reasonable degree of skill, knowledge, and care ordinarily possessed and used by members of their medical community in similar circumstances.
Petition to Vacate the Arbitration Award:
On September 1, 2006, plaintiffs filed a petition to vacate the arbitration award. It claimed that Judge Smith was corrupt, alleging that a series of rulings would lead a reasonable person to believe that Judge Smith was biased in favor of the defendants, who were in a position to give Judge Smith substantial future business. In the hearing on the petition, for the first time plaintiffs argued that defendants violated disclosure requirements of Health and Safety Code section 1363.1. The trial court ordered additional supplemental written briefing on this issue. On January 29, 2007, the trial court’s order denied plaintiffs’ petition to vacate the arbitration award and rejected plaintiffs’ arguments about Health and Safety Code section 1363.1.
Notice of Appeal and Submission of an Appealable Order:
On February 8, 2007, plaintiffs filed a notice of appeal taken from the January 29, 2007, order. On March 2, 2007, defendants moved to dismiss the appeal as having been taken from a nonappealable order. On March 29, 2007, this court denied the motion to dismiss the appeal, and ordered plaintiffs to obtain an appealable order from the superior court and to file that judgment in this court within 30 days. On April 20, 2007, plaintiffs filed a conformed copy of an April 13, 2007, “stipulated judgment confirming arbitration award,” ordering that the arbitrator’s August 11, 2006, award be confirmed as a judgment pursuant to section 1287.4. This judgment is appealable. (§§ 1294, subd. (d) and 1287.4; Carpenters 46 Northern Cal. Counties Conf. Bd. v. David D. Bohannon Organization (1980) 102 Cal.App.3d 360, 363.) We deem the notice of appeal to refer to the after-filed appealable judgment. (National Marble Co. v. Bricklayers & Allied Craftsmen (1986) 184 Cal.App.3d 1057, 1060, fn. 1.)
ISSUES
Plaintiffs claim that the trial court erroneously denied the petition to vacate because:
1. Defendant Kaiser failed to comply with Health and Safety Code section 1363.1, which renders the arbitration void;
2. Plaintiffs did not waive their right to object to the lack of an agreement to arbitrate;
3. The arbitrator was biased against plaintiffs and was otherwise subject to objection or disqualification;
4. The arbitrator was biased, which prejudiced plaintiffs’ rights, under section 1286.2; and
5. The trial court abused its discretion in sustaining defendants’ evidentiary objections to plaintiffs’ submissions in the petition to vacate, and in overruling plaintiffs’ objections to defendant’s evidence.
DISCUSSION
1. Standard of Review
This court may vacate an arbitration award confirmed by the superior court only under limited circumstances. “We do not review the merits of the dispute, the sufficiency of the evidence, or the arbitrator’s reasoning, nor may we correct or review an award because of an arbitrator’s legal or factual error, even if it appears on the award’s face. Instead, we restrict our review to whether the award should be vacated under the grounds listed in section 1286.2.” (Roehl v. Ritchie (2007) 147 Cal.App.4th 338, 347.)
2. Because It Was Raised Too Late, Plaintiffs Have Forfeited Their Claim That Kaiser’s Violation of Disclosure Requirements of Health and Safety Code § 1363.1 Invalidated the Arbitration Agreement
Plaintiffs claim that Kaiser failed to comply with Health and Safety Code section 1363.1, which renders the arbitration agreement invalid. We disagree.
Appellants’ opening brief at times identifies the statute as Health and Safety Code section 1363 and at other times as Health and Safety Code section 1363.1. Health and Safety Code section 1363, subdivision (a), states that the Director of the Department of Managed Health Care (Health & Saf. Code, § 1341, subd. (b)) shall require each health care service plan to use disclosure forms or materials containing information about benefits, services, and terms of the plan contract. Among other information, “[i]f the plan utilizes arbitration to settle disputes,” the disclosure form is required to contain “a statement of that fact.” (Health & Saf. Code, § 1363, subd. (a)(10).) We assume, however, that the statute to which plaintiffs refer is Health and Safety Code section 1363.1, which is more detailed and specific about the disclosure of contract terms that require binding arbitration or restrict or require waiver of the right to jury trial. Health and Safety Code section 1363.1 states:
The parties’ attorneys signed a “stipulation to submit to binding arbitration and stay action pending arbitration.” The Moreno plaintiffs participated in the arbitration, do not claim that their attorney lacked authority to execute the stipulation to arbitrate or that their consent to arbitrate was fraudulently induced, and have not sought to repudiate that stipulation. Therefore they ratified their attorney’s stipulation to arbitrate. (Caro v. Smith (1997) 59 Cal.App.4th 725, 732.)
More importantly, plaintiffs claim that because Kaiser violated disclosure requirements of Health and Safety Code section 1363.1, the agreement to arbitrate was invalid and unenforceable. Even if it is true that Kaiser violated Health and Safety Code section 1363.1—a point it is unnecessary to decide—plaintiffs forfeited this claim by failing to raise it in a timely fashion. “[U]nless a party is claiming (i) the entire contract is illegal, or (ii) the arbitration agreement itself is illegal, he or she need not raise the illegality question prior to participating in the arbitration process, so long as the issue is raised before the arbitrator. Failure to raise the claim before the arbitrator, however, waives the claim for any future judicial review.” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 31.) A party who “sit[s] on his rights” during arbitration should not be allowed to assert those rights after receiving an adverse determination. (Id. at p. 30; see also Cummings v. Future Nissan (2005) 128 Cal.App.4th 321, 328-329.)
Plaintiffs rely on Malek v. Blue Cross of California (2004) 121 Cal.App.4th 44, 65, 72 (Malek) holding that an arbitration provision that fails to comply with disclosure requirements of Health and Safety Code section 1363.1 cannot be enforced. The plaintiffs in Malek, however, timely raised defendant’s failure to comply with Health and Safety Code section 1363.1 in opposing defendant’s petition to compel arbitration, and also in a motion to dismiss before the arbitrator, who granted that motion. (Malek, at p. 52, 53.) Non-compliance with Health and Safety Code section 1363.1 was also timely raised in the other cases plaintiffs rely on. (Smith v. PacifiCare Behavioral Health of Cal., Inc. (2001) 93 Cal.App.4th 139, 142-143, 148; Imbler v. PacifiCare of Cal., Inc. (2002) 103 Cal.App.4th 567, 569; Zembsch v. Superior Court (2006) 146 Cal.App.4th 153, 159.)
Here plaintiffs did not raise Kaiser’s violation of Health and Safety Code section 1363.1 before or during the arbitration, or even in their petition to vacate the arbitration award (despite the requirement in section 1285.8 that a petition to vacate an arbitration award “shall set forth the ground on which the request for such relief is based[.]”). They raised this issue for the first time in oral argument on their petition to vacate the arbitration award. Consequently this claim is forfeited.
The reporter’s transcript of the December 19, 2006, hearing on plaintiffs’ petition to vacate the arbitration award reflects that plaintiffs’ attorney, Mr. Freidman, raised section 1363.1 for the first time:
3. Plaintiffs Have Not Established Arbitrator Bias
Plaintiffs claim two grounds for vacation of the arbitrator’s award. Under section 1286.2, subdivision (a), “the court shall vacate the award if the court determines any of the following:
“(1) The award was procured by corruption, fraud or other undue means.
“[¶] . . . [¶]
“(3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator.”
Judicial review of private arbitration awards is limited to those grounds to vacate the award specified in sections 1286.2 and to correct the award specified in section 1286.6. (Moncharsh v. Heily & Blase, supra, 3 Cal.4th at pp. 26, 28.)
Plaintiffs cite four instances of arbitrator bias as grounds to vacate the award.
A. Plaintiffs Have Not Shown That Arbitrator Bias Because of the “Repeat Player
Syndrome” Was a Statutory Ground to Vacate the Arbitration Award
Plaintiffs define “the repeat player syndrome” as an arbitrator’s incentive to reach a result favorable to Kaiser, which participates in numerous arbitrations, so that arbitrator can obtain future arbitration assignments. In essence, plaintiffs argue that Kaiser’s acceptance of an arbitrator calls that arbitrator’s neutrality into question.
Plaintiffs’ motion to vacate provided no evidence that the arbitrator, retired Judge Sherman W. Smith, Jr., previously served as an arbitrator in arbitrations in which Kaiser was a party and failed to disclose those arbitrations as required by section 1281.9. Indeed, plaintiffs conceded that Judge Smith filed his required declarations. Plaintiffs did not serve a timely notice of disqualification of Judge Smith (§ 1281.91, subds. (a) and (b)(1)) and thus waived the right to disqualify the proposed neutral arbitrator. (Id. at subd. (c).) Thus there was no basis for the trial court to vacate the arbitration award on the ground of corruption pursuant to section 1286.2, subdivision (a)(1). (Michael v. Aetna Life & Casualty Ins. Co. (2001) 88 Cal.App.4th 925, 937.)
Plaintiffs cite only one case referring to the “repeat player syndrome,” Mercuro v. Superior Court (2002) 96 Cal.App.4th 167. Mercuro defined the “repeat player effect” differently, as referring to advantages gained by the large, corporate employer who appeared before the same group of arbitrators, to the comparative disadvantage of an individual employee. (Id. at p. 178.) Its definition did include “the arbitrators’ cultivation of further business by taking a ‘split the difference’ approach to damages,” (ibid.) but the “repeat player” is the employer, not the arbitrator. Mercuro also addressed a different issue. The issue in Mercuro was not arbitrator bias as a statutory ground to vacate the award, but whether the underlying arbitration agreement was unenforceable because it was unconscionable. The Mercuro court declared itself “not prepared to say without more evidence the ‘repeat player effect’ is enough to render an arbitration agreement unconscionable.” (Id. at p. 179.) Given the lack of evidence of Judge Smith’s prior, pending, or future service as an arbitrator in matters in which Kaiser was or would be a party, plaintiffs have not established it as a ground under section 1286.2, subdivision (a) for vacating the arbitration award.
B. Plaintiffs Have Not Shown That the Arbitrator Was Biased By Failing to Remember a Witness Who Testified Eight Months Previously
Plaintiffs claim that the arbitrator’s ruling to allow defendant to substitute a new expert witness, Dr. Tam Asrat, for defendant’s previously designated perinatology expert witness, Dr. Michael Nageotte, showed the arbitrator’s bias.
In a June 14, 2006, letter to plaintiffs’ counsel, defendants’ counsel stated that she had recently learned that Dr. Nageotte would not be available to testify on the schedule arbitration date during the week of July 24, 2006. Because plaintiffs’ counsel had not yet taken Dr. Nageotte’s deposition, defendants’ counsel proposed replacing Dr. Nageotte with Dr. Asrat, another perinatologist. In a June 15, 2006, letter to defendants’ counsel, plaintiffs’ counsel stated that the replacement of Dr. Nageotte with Dr. Asrat was not acceptable, but further stated: “If [Kaiser] Health Plan would pick up ALL costs associated with a videotaped deposition of Dr. Nageotte (and I am even agreeable to your first examining) I would be agreeable to showing that videotape at the arbitration. [¶] Otherwise, you will have to do the best you are able.”
Although it is not in the record, defendants’ counsel submitted a motion to augment the expert witness pursuant to section 2034.610. In the hearing on the motion, plaintiffs’ counsel objected that the motion contained no declaration from Dr. Nageotte, and that defendant’s attorney’s declaration that she had recently learned that Dr. Nageotte would be unavailable to testify at the arbitration was hearsay and did not comply with section 2034.610. Plaintiffs’ counsel again offered to depose Nageotte, with defendant paying all costs (including Dr. Nageotte’s fees and the cost of an expedited reporter’s transcript), but otherwise opposed the motion. Responding to the arbitrator’s question why Dr. Nageotte was not available, defendants’ counsel stated that Nageotte would be out of the country during the arbitration, and that her paralegal had incorrect dates of Dr. Nageotte’s ability.
The arbitrator granted the motion to substitute Dr. Asrat, required Kaiser to make Dr. Asrat available for deposition by plaintiffs’ counsel, with Kaiser to bear costs of the reporter, expedited transcript, and the expert witness’s fee. Based on plaintiffs’ counsel’s time estimate to depose Dr. Asrat, the arbitrator ordered the deposition and costs incurred be limited to two hours. Defendants’ counsel agreed to this order.
On appeal, the issue is whether plaintiffs, as the party claiming the arbitrator was biased, met their burden of establishing the facts supporting the claim. (Reed v. Mutual Service Corp. (2003) 106 Cal.App.4th 1359, 1370.) The test is whether the facts create an impression of the arbitrator’s bias in a reasonable person’s mind. (Id. at p. 1371.)
Plaintiffs claim that defendants’ motion to augment the expert witness list with Dr. Asrat was “deliberately obtuse” about the reason for Dr. Nageotte’s unavailability. Plaintiffs do not cite defendants’ motion to augment the expert witness, and the record on appeal does not include that motion. An appellant must affirmatively show error by an adequate record; this court never presumes that error has occurred, and instead presumes that trial court’s judgment is correct. The absence of a complete record on appeal allows this court to treat the contention as waived. (Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448.)
Plaintiffs assert that the reason for defendants’ motion was a scheduling error in the office of defendants’ counsel. That is supported by statements of defendants’ counsel in the June 27, 2006, hearing on the motion to augment the expert witness list. Plaintiffs argue that this was not good cause to allow a party to substitute an expert witness, because section 2034.620, subdivision (c)(2), requires a determination of “mistake, inadvertence, surprise, or excusable neglect[.]” We disagree, and find that the mistake in scheduling Dr. Nageotte’s deposition by the paralegal of defendants’ attorney satisfies the statutory requirement of “mistake” or “inadvertence.”
Plaintiffs argue that a motion to augment an expert witness list made after discovery has closed is allowed only in “exceptional circumstances.” Plaintiffs assert that defendants’ counsel had sufficient time after designation of expert witnesses and after the setting of the arbitration date to discover the scheduling error. Plaintiffs provide no evidence to support this claim of sufficient time. Plaintiffs argue there was an “insufficient basis” to augment the expert witness list by Dr. Asrat’s name, but provides no further discussion or citation of evidence. The point is therefore waived. (Jimmy Swaggart Ministries v. State Bd. of Equalization (1988) 204 Cal.App.3d 1269, 1294.)
This claim is based on section 2034.610, subdivision (b), stating: “A motion [to augment an expert witness list by adding an expert witness] under subdivision (a) shall be made at a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Under exceptional circumstances, the court may permit the motion to be made at a later time.”
Plaintiffs claim that Judge Smith falsely stated in the hearing on the motion to augment that he was not familiar with Dr. Asrat, when in fact Dr. Asrat had appeared before Judge Smith in an arbitration eight months earlier. The transcript, however, shows the arbitrator made no statement that he was not familiar with Dr. Asrat. Instead the arbitrator did not know if Dr. Asrat was male or female.
The transcript states:
Plaintiffs claim that eight months earlier, Judge Smith served as arbitrator in a proceeding involving Kaiser in which the same counsel appeared for Kaiser and in which Dr. Asrat testified. The citation to the record in plaintiffs’ brief does not support this assertion. Nonetheless when the arbitration began on July 24, 2006, defendants’ counsel addressed comments in plaintiffs’ response to defendants’ arbitration brief, filed approximately one week earlier. The transcript shows that Plaintiffs’ attorney withdrew any objection based on Judge Smith’s lack of impartiality based on a failure to recall Dr. Asrat’s name. Thus the record provides no support for a claim that the arbitrator was biased, and the facts cannot have created an impression of bias in a reasonable person’s mind.
“Ms. Taylor [defendants’ counsel]: [¶] . . . [¶] . . . Mr. Friedman states on page 2 [that] he learned of an arbitration where you, Judge Smith, presided in a case entitled Ali vs. Kaiser Foundation Health Plan.
C. Plaintiffs Have Not Shown Arbitrator Bias Because of Rulings Excluding Evidence to Impeach a Defense Expert Witness
Plaintiffs claim that arbitrator bias was evident in Judge Smith’s consistent rulings excluding plaintiffs’ evidence available to impeach Dr. Asrat.
Plaintiffs refer to a settlement in the Gutteridge matter, citing a declaration by plaintiffs’ attorney, Mr. Friedman, which states: “[D]eclarant is informed and believes and thereupon alleges, that in fact, Dr. Asrat consented to his insurance company paying $750,000, to settle Gutteridge v. Hoag Memorial Hospital, Presbyterian and Tamerou Asrat, M.D., in the year 2004.” In the arbitration, the record shows that defendants’ attorney objected to questioning of Dr. Asrat concerning the Gutteridge case:
“By Mr. Friedman:
“Q. Doctor, less than two years ago, you were involved in a case called [Gutteridge], were you not?
“A. Yes, I was.
“Q. You consented to settlement of that case for something approaching your policy limit, did you not?
“Ms. Taylor: I’m going to object, Your Honor. That question lacks foundation and it’s irrelevant.
“Judge Smith: What’s the relevance?
“Mr. Friedman: The relevance is it goes to credibility. An expert is vouched for by the party providing him. Dr. Williams has been attacked rather unmercifully in here. Dr. Williams never has suffered even so much as an indemnity payment of a dime.
“Judge Smith: No one’s ever asked him that question.
“Ms. Taylor: First of all, he didn’t testify to that[.]
“[¶] . . . [¶]
“Mr. Friedman: I don’t propose to go into the merits [of the Gutteridge matter]. I’m going into the fact of the settlement, which was substantial.
“Judge Smith: Why? What is the relevance of that?
“Mr. Friedman: Because it’s been my experience over 40-odd years that physicians consent to settlement for substantial money only when they believe that . . . there is liability.
“Judge Smith: And if there was liability, so what?
“Mr. Friedman: It is a negative factor.
“[¶] . . . [¶]
“Judge Smith: Why is it negative? [¶] . . . [¶] That’s just like somebody has a car accident. Just because somebody had another car accident before, does that mean that’s going to come in?
“Mr. Friedman: I think not. I think not.
“Judge Smith: So why would it come in in this case?
“Mr. Friedman: Because this is a professional who has the power to veto any settlement.
“Judge Smith: Mr. Friedman, that doesn’t go to credibility, other than the fact that he has been a defendant in a medical malpractice suit. I mean, I could see some bias being implied . . . because maybe he’s against people being sued for medical malpractice and he maybe has . . . a biased position about those types of suits, but that only goes to the fact that he himself has been a defendant in these types of suits, which is already in. Going any further than that, I don’t see any relevance of it.
“Mr. Friedman: All right. Then I don’t want to prolong it. I’ll let it go.
“Q. By the way Doctor, the charges against you in the [Gutteridge] case involved failure to timely diagnose fetal distress and failure to timely perform emergency C-section; correct?
“A. Those were the allegations.
“Q. That’s right, and you settled the lawsuit?
“A. I made a business decision to settle the lawsuit not having anything to do with malpractice.”
Thus plaintiffs’ attorney both discontinued the line of questioning of Dr. Asrat about the prior Gutteridge case, and elicited further testimony showing that questions about that matter had no relevance to Asrat’s testimony in this case, which did not involve either failure to timely diagnose fetal distress or to timely perform an emergency C-section. Thus the record does not support a claim that the arbitrator was biased, and the facts cannot have created an impression of bias in a reasonable person’s mind.
Plaintiffs also argue that they presented one expert witness, Dr. Williams, but the arbitrator allowed defendants to present two expert witnesses, Dr. Asrat and Dr. Cowan. This would indicate arbitrator bias only if plaintiffs sought to present a second expert witness and the arbitrator erroneously excluded that second expert witness’s testimony. There is no claim that this is what happened.
Plaintiffs argue that the Arbitrator relied heavily on the testimony of both defense expert witnesses in his written decision. The written opinion rejects Dr. Williams’s expert opinion that Kaiser providers fell below the standard of care, and accepts the expert opinion of Dr. Asrat and Dr. Cowan that it was up to the treating OB physician to determine the appropriate course of treatment, that Kaiser did not fall below the standard of care, and that “based on the baby’s head circumference of 32½ cm at birth and the head circumference at 19 weeks being normal for [that] date it would have been almost impossible to detect microcephaly in a period of time within which a legal abortion could have been performed.”
Plaintiffs also claim that in the arbitration proceeding, the arbitrator sustained defense objections to plaintiffs’ counsel’s cross-examination of Dr. Asrat. Plaintiffs do not support this claim with evidence from the record, and consequently waive the point. Plaintiffs claim that the arbitrator overruled plaintiffs’ counsel’s objections to Dr. Cowan’s testimony as cumulative of Dr. Asrat’s testimony. Plaintiffs cite six such objections, but make no attempt to show that such rulings were erroneous.
As plaintiffs conceded in their petition to vacate the arbitration award, they did not claim that the arbitrator abused his discretion in making rulings or that the evidence was not sufficient to support the award. These concessions preclude a claim of bias based on the evidence upon which the arbitrator relied.
D. Plaintiffs Have Not Shown Arbitrator Bias Because of the Exclusion of Evidence
Plaintiffs claim the arbitrator excluded plaintiffs’ cross-examination of witnesses and especially expert witnesses. Plaintiffs identify no such witnesses, provide no citations to such exclusion of evidence, and do not further discuss this claim. It is therefore waived. (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303; In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 278.)
Plaintiffs also claim that the arbitrator disregarded the testimony of plaintiffs’ expert witness that the “suggested treatment” in the document “Management of Unexplained, Elevated MS-AFP and/or MS-HCG” was a strong recommendation to undertake a treatment process, rather than a mere “suggestion.” The arbitrator, however, relied on testimony of defendants’ experts, Dr. Cowan and Dr. Asrat, whose opinion was that the suggested course of treatment was only a “suggestion” and that the treating OB physician had the duty to determine the appropriate course of treatment. This reflects merely a conflict in the evidence, and does not indicate arbitrator bias.
4. Plaintiffs Have Not Shown Arbitrator Bias Because of Grand Jury Testimony in an Unrelated Case
Plaintiffs claim that arbitrator bias requires vacation of the arbitration award under all grounds enumerated in section 1286.2.
This claim is based on testimony of Richard David Cordova before the Los Angeles County Grand Jury on August 3 and 4, 2006, in People v. Wong. Plaintiffs submitted this testimony as part of a supplemental declaration to their motion to vacate, filed on October 23, 2006. The supplemental declaration argued that the grand jury testimony showed that the Kaiser Foundation Health Plan had a culture of corporate corruption. Cordova, President and Chief Executive Officer of Children’s Hospital in Los Angeles, was formerly employed by Kaiser from 1998 to 2004, first as Vice-President and Service Area Manager for four hospitals in Northern California, then as Chief Operating Officer for the Southern California Region, and finally as Regional President for Southern California. As Regional President, for two years he supervised the subject of the grand jury investigation, Leland Wong, Kaiser’s Director of Southern California Government and Community Relations. Wong had a budget for both community benefit and government relations, which amounted to tens of millions of dollars. Cordova’s duties included approving Wong’s expenditures, including his personal expense claims. Wong had authority to sign for up to $50,000 in expenditures, but had to seek approval for expenditures above that amount. An investigation of Wong’s expenditures began in October 2003. It disclosed that Wong had purchased hundreds of Laker tickets over the previous seven or eight years. These were inappropriate expenditures.
Citing Cordova’s testimony that Wong had authority to sign for up to $50,000 in expenditures, plaintiffs’ supplemental declaration to the petition to vacate argued that “some Kaiser functionary” used Kaiser’s funds to obtain a favorable decision in this arbitration.
Plaintiff has shown no evidence of any link between Wong and Judge Smith, no evidence that Wong was involved in Kaiser arbitrations, or any other evidence that would support a claim that Kaiser paid money to influence the result of the arbitration. Wong’s expenditures violated Kaiser’s own expense policies, and as Cordova stated, were inappropriate. This evidence is insufficient to create an impression of the arbitrator’s bias in a reasonable person’s mind. (Reed v. Mutual Service Corp., supra, 106 Cal.App.4th at p. 1371.)
5. Plaintiffs Have Not Shown That the Trial Court’s Evidentiary Rulings Were an Abuse of Discretion
Plaintiffs claim that the trial court erroneously sustained defendants’ objections to plaintiffs’ exhibits, materials, and comments in the petition to vacate.
The trial court sustained a defense objection to a November 16, 2006, Los Angeles Times article, “L. A. Files patient ‘Dumping’ Charges.” Plaintiffs argue that this item was relevant to plaintiffs’ statements concerning Kaiser’s corporate conduct and culture. The lack of any further argument, and the fact that the item of evidence is not in the record on appeal, forfeit this claim on appeal. (Interinsurance Exchange v. Collins, supra, 30 Cal.App.4th at p. 1448.)
The trial court sustained a defense objection to statements by plaintiffs’ attorney in an October 23, 2006, declaration that Kaiser Foundation Health Plan “was an enterprise infused with the corporate culture of corruption” and to Cordova’s grand jury testimony about Leland Wong’s acts. The beliefs of plaintiffs’ attorney concerning the nature of Kaiser Foundation Health Plan’s enterprise was not evidence. Cordova’s testimony about Wong’s activities had no relevance, because Kaiser did not employ Wong after early 2004. The complaint was not filed until August 12, 2005, and Judge Smith was appointed arbitrator in this matter in 2006. The exclusion of the grand jury testimony as irrelevant was well within the trial court’s discretion.
The trial court sustained a defense objection to other statements by plaintiffs’ attorney, Mr. Friedman, in an October 23, 2006, declaration that it was Friedman’s belief that a Kaiser functionary paid Kaiser funds to obtain a favorable decision in this arbitration. There was no evidentiary basis for this opinion, and the trial court properly sustained the defense objection to it.
The trial court sustained a defense objection to another newspaper article referred to by plaintiffs. The newspaper article reports a ruling by a New York state court finding that Richard A. Grasso had breached his fiduciary duties by failing to disclose the value of his compensation, and requiring him to return $100 million in compensation to the New York Stock Exchange. The newspaper article lacks any relevance to this arbitration, and such articles are inadmissible hearsay (Tibbetts v. Van de Kamp (1990) 222 Cal.App.3d 389, 395, fn. 5). The sustaining of this objection was not an abuse of discretion.
The trial court sustained a defense objection to a written decision adopting the determination of an independent medical review organization, dated November 16, 2006. The letter was from the Independent Medical Review Compliance Manager of the State of California Department of Managed Care to Rafael Moreno regarding patient Molly Moreno. It stated that Moreno’s request for authorization and coverage for home health physical therapy and occupational therapy for Molly Moreno was referred to the Department’s Independent Medical Review organization, through which independent medical providers resolve disputes about health care services. The letter stated that the independent provider determined that the service requested was not medically necessary, and therefore the Department could not require Moreno’s health plan to provide that service. This letter has no relevance to a claim of arbitrator bias, and the trial court was within its discretion in sustaining the objection to its admission.
Plaintiffs claim that the trial court abused its discretion in overruling plaintiffs’ objections to declarations of Alice Davis and to Kaiser’s documentation attempting to show compliance with Health and Safety Code section 1363.1 in its Plan documents.
Alice Davis’s declaration supported defendants’ supplemental response to plaintiffs’ petition to vacate arbitration award filed on December 4, 2006. Davis, employed by Kaiser as Operations Manager for Special Accounts, stated that Kaiser stored and maintained contracts entered into between the Kaiser Health Plan and members, and that Kaiser Health Plan’s records reflected that Molly A. Moreno, Rafael Moreno, and M. Christina Moreno were enrolled as Health Plan members and/or family dependent members during 1999. Plaintiffs objected to this evidence in that its late submission would deny due process to plaintiffs, based on San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 312-313 (San Diego Watercrafts). Plaintiffs make the same argument on appeal. San Diego Watercrafts involved evidentiary submissions in a summary judgment proceeding, and held that there was no absolute prohibition on consideration of evidence not referenced in separate statements, and that review of a trial court’s refusal to consider evidence because of the failure to comply with the separate statement requirement in section 437c should use an abuse of discretion standard. (San Diego Watercrafts, at p. 310-311.) This arbitration was not a summary judgment proceeding and was not governed by section 473c. Plaintiffs themselves submitted numerous supplemental pleadings, declarations, and items of evidence after their petition to vacate. Plaintiffs opposed the defendants’ December 4, 2006, supplemental response, and in their December 7, 2006, objection and again in a January 8, 2007, objection to any consideration of Davis’s declaration. Even if it was improperly admitted, there is no evidence that Davis’s declaration played any part in the order denying the petition to vacate. We find no abuse of discretion in this evidentiary ruling.
As for Kaiser’s late submission of evidence of compliance with Health and Safety Code section 1363.1, we have found that this issue has been waived by plaintiffs’ failure to timely raise it. We find no abuse of discretion in the trial court’s overruling of plaintiffs’ objection to that evidence.
DISPOSITION
The judgment is affirmed. The parties are ordered to bear their own costs on appeal.
We concur: KLEIN, P. J., CROSKEY, J.
“Any health care service plan that includes terms that require binding arbitration to settle disputes and that restrict, or provide for a waiver of, the right to a jury trial shall include, in clear and understandable language, a disclosure that meets all of the following conditions:
“(a) The disclosure shall clearly state whether the plan uses binding arbitration to settle disputes, including specifically whether the plan uses binding arbitration to settle claims of medical malpractice.
“(b) The disclosure shall appear as a separate article in the agreement issued to the employer group or individual subscriber and shall be prominently displayed on the enrollment form signed by each subscriber or enrollee.
“(c) The disclosure shall clearly state whether the subscriber or enrollee is waiving his or her right to a jury trial for medical malpractice, other disputes relating to the delivery of service under the plan, or both, and shall be substantially expressed in the wording provided in subdivision (a) of Section 1295 of the Code of Civil Procedure.
“(d) In any contract or enrollment agreement for a health care service plan, the disclosure required by this section shall be displayed immediately before the signature line provided for the representative of the group contracting with a health care service plan and immediately before the signature line provided for the individual enrolling in the health care service plan.”
“Mr. Freidman: [I]t’s the contract matter that is the most significant . . . . [¶] . . . There is a code section called Health and Safety Code section [1363.1]. Are you familiar with it?
“The Court: Not – it’s not – is it in your papers?
“Mr. Friedman: No.
“[¶] . . . [¶]
“The Court: That’s why I’m not familiar with it because normally I read the papers.
“Mr. Friedman: I’d like to familiarize yourself very briefly.
“[¶] . . . [¶]
“Mr. Friedman: [W]hen Health and Safety Code section [1361.1] was passed, [Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699] became [a] dead letter. Because [1363.1] was a dagger aimed at the heart of Kaiser, and it has certain substantial requirements.
“The Court: Let me stop you. If that is entirely true, why isn’t it in your papers?
“Mr. Friedman: Because at that point I didn’t know what they were going to say, and I didn’t want to give away everything.”
“Arbitrator Smith: “[M]r. Friedman [plaintiffs’ counsel] . . . because of your own schedule, you’re going to be on holiday, that you’re not going to be able to depose Dr. Asrat. But I’m assuming, Ms. DeMarco [defendants’ counsel], you would represent that if Mr. Friedman would wish to depose Dr. Asrat, you would make her available – is it he or she?
“Ms. DeMarco: He.
“Arbitrator Smith: You would make him available for his deposition in a timely fashion prior to the arbitration.”
“[A]t the time that Mr. Friedman, on behalf of his clients, agreed to have you substitute for Judge Davies[.] [O]n April 21 you sent, on J.A.M.S. stationery, a disclosure. And the disclosure clearly stated in more than one location that you had been the arbitrator on that case, that I was the defense attorney, that Ms. DeMarco was involved in the case, that Kaiser was my client and that there was a defense nonmonetary award. So that case was disclosed.
“Immediately upon your appointment or stipulation as the mutual arbitrator in this case – and was not raised at all by way of objection by Mr. Friedman, . . . until we received this so-called reply memorandum. . . . Mr. Friedman states . . . ‘given that suspicious circumstance, the burden is upon Arbitrator Smith to demonstrate, not simply plead, his impartiality as to the parties.’ [¶] [I] am obligated . . . to confirm with the court, Judge Smith, that he is indeed impartial as to all parties in this case. [¶] And I am obligated, I believe, to obtain a statement from Mr. Friedman that he is not questioning that impartiality . . . . [¶] . . . [¶] [I] would request the court’s further advice on the issue before we begin.
“Mr. Friedman: Well, arbitrators don’t give advice, ma’am. [¶] Mr. Arbitrator, in a sense I apologize. In a sense. I had no knowledge [until a] couple of days after our previous conference on June 27th. That’s when I learned because I was beginning to investigate this Dr. Asrat that he had testified for Kaiser in this case. Well, maybe it was overreaction. It might be.
“But I was concerned that you . . . asked whether this Dr. Asrat was a he or a she. And when I learned that he had testified in the Ali case, I was really concerned. I mean, it was only eight months before. Had you forgotten that he had
“Judge Smith: [M]r. Friedman, the only way you can survive in this business is after you finish a case . . and you’ve rendered an award – is to put it out of your mind and move on to the next case. There were approximately . . . 10 to 12 physicians who testified in that case. And the name, when I saw it, did not ring a bell whatsoever. I had no clue as to who that person was.
“Mr. Friedman: All right. Well, I’ll more than accept that. Because one thing I can tell you for sure is that reply was dictated before, antes, I took Asrat’s deposition. This fellow is a punch ticket.
“Judge Smith: Well . . . that’s argument, Mr. Friedman.
“Mr. Friedman: I understand that, and we’re going to touch on that in opening statement. The most remarkable deposition I ever took. And, no, I don’t have any problem with your impartiality, your statement that, you know, you put it out of your mind once this is – I didn’t know there were eight to ten experts.
“But be that as it may, I accept your representation as a gentleman, and at this moment, I certainly do not feel that you have any problem with being impartial notwithstanding – and I knew of the defense award or nonaward in Ali at the time I accepted Ms. Taylor’s recommendation of you. So I knew that. And as I say, you will hear it in a few minutes. Once I deposed [Dr.] Asrat, any concern I had went out the window. . . .
“Judge Smith: All right[.]”