Dinong v. Superior Court

California Court of Appeal Jun 12, 1981 No. Civ. 20574Published

Before: Paras

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Holding. Parties to a contractual arbitration agreement may appoint non-neutral arbitrators unless the agreement explicitly requires neutrality, and a court abuses its discretion by disqualifying such arbitrators for lack of impartiality.

Issues

Must parties to an arbitration contract each designate an arbitrator who is neutral with regard to the subject controversy?

Disposition. reversed

Quotations verified verbatim against the opinion

“Nothing in the Arbitration Act prohibits parties to a contract of arbitration from selecting an arbitrator “who, by reason of relationship to a party or similar factor, can be expected to adopt something other than a ‘neutral’ stance”

“we hold that respondent abused its discretion in ordering the disqualification of the nominated arbitrators.”

[302]

Opinion

PARAS, Acting P. J.

The issue in this proceeding for extraordinary relief is whether parties to an arbitration contract

must each designate as their arbitrator a person who is neutral with regard to the subject controversy.

Respondent court, in response to motions by each party seeking disqualification of the other’s nominated arbitrator, entered an order disqualifying both on the ground that they lacked impartiality. Respondent thereafter denied a motion for reconsideration. This petition followed.

The arbitrator nominated by petitioners (plaintiffs in the underlying medical malpractice action and one party) is a Sacramento trial attorney who has frequently represented plaintiffs in medical malpractice actions, and more specifically has participated in such actions against the present principal defendants (the other party). The arbitrator nominated by defendants (and real parties in interest) is an attorney whose firm is active in the representation of the principal defendants, Kaiser Foundation Hospital and Kaiser Permanente Medical Group.

The disqualification motions asserted various of the grounds set forth in Code of Civil Procedure section 170, relating to disqualification of judges. Applicability of that section was urged on the basis of Code of Civil Procedure section 1141.18, subdivision (d), which of course is included within the Code of Civil Procedure sections dealing with judicial arbitration. Respondent court, in making its challenged decisions, expressly refused to hold the statutory disqualification procedure applicable; instead, it found support for its order in the reciprocal duty of good faith and fair dealing implicit in all contracts.

As to contractual arbitration, Code of Civil Procedure section 1281.6 states that where “the arbitration agreement provides a method of appointing an arbitrator, such method shall be followed.” It is further provided in section 1282 that arbitration shall be conducted by a neutral arbitrator alone or in conjunction with other neutral or nonneutral arbitrators.

“[u]nless the arbitration agreement otherwise

Dinong v. Superior Court

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