JUDGE ROLF M. TREU
DEPARTMENT 58
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Hearing Date: Thursday, April 3, 2014
Calendar No: 4
Case Name: Kim v. Solair Marketing LLC, et al.
Case No.: BC508236
Motion: Motion to Vacate Arbitration Award
Moving Party: Plaintiff Soon Joo Kim
Opposing Party: Defendant Solair Marketing LLC
Notice: OK

Tentative Ruling: Motion to vacate arbitration award is denied.
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Background and Procedural History –
On 5/7/13, Plaintiff Soon Joo Kim filed this action against Defendants Solair Marketing, Chicago Title Company, C T Corporation System, and United Escrow arising out of the alleged failure to return money deposited in connection with the purchase of a condominium unit. Plaintiff asserts causes of action for (1) breach of written contract, (2) money had and received, (3) unjust enrichment, and (4) conversion.

On 6/11/13, Plaintiff filed Doe Amendments naming Koar Wilshire Western, LLC; Wilshire Entertainment Center, LLC; Kia Wilwest, LLC; and Koar Institutional Advisors, LLC as Does 1-4 respectively.

On 7/23/13, pursuant to the parties’ stipulation, the Court ordered Plaintiff and Solair to binding arbitration. On 8/6/13, Plaintiff voluntarily dismissed Chicago Title, CT Corp., and United Escrow without prejudice. On 8/21/13, pursuant to the parties’ stipulation, the Court ordered Plaintiff and the remaining defendants (Doe Defendants 1-4) to binding arbitration.

Motion to Vacate Arbitration Award –
On 2/13/14, Plaintiff filed a motion to vacate arbitration award. An arbitration award will be vacated if the Court determines that:
An arbitrator making the award either: (A) failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware; or (B) was subject to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely demand to disqualify himself or herself as required by that provision. However, this subdivision does not apply to arbitration proceedings conducted under a collective bargaining agreement between employers and employees or between their respective representatives.
CCP § 1286.2(a)(6).

Plaintiff seeks to vacate the final arbitration award issued on 1/23/14 (Lee Decl. ¶¶ 2-3, Ex. A) on the ground that Plaintiff did not receive the arbitrator’s disclosure checklist (see id. ¶¶ 4-7, Exs. B-C). See also Kwon Decl. ¶ 8.

Plaintiff’s motion is purportedly directed at the arbitrator’s failure to disclose facts supporting current or prospective arrangements for employment or other compensated service. See CCP § 1281.9(a)(1). However, Plaintiff’s motion is not of the traditional kind based on the arbitrator’s knowing failure to disclose a ground for disclosure. See, e.g., Mt. Holyoke Homes, L.P. v. Jeffer Mangels Butler & Mitchell, LLP (2013) 219 Cal.App.4th 1299, 1310-12; Casden Park La Brea Retail LLC v. Ross Dress For Less, Inc. (2008) 162 Cal.App.4th 468, 477-78. Instead, Plaintiff’s motion is based on the failure to receive the disclosure checklist.

CCP § 1281.9(b) provides that “the proposed neutral arbitrator shall disclose all matters required to be disclosed pursuant to this section to all parties in writing within 10 calendar days of service of notice of the proposed nomination or appointment.” CCP § 1281.91(a) provides: “A proposed neutral arbitrator shall be disqualified if he or she fails to comply with Section 1281.9 and any party entitled to receive the disclosure serves a notice of disqualification within 15 calendar days after the proposed nominee or appointee fails to comply with Section 1281.9.” However, the right to disqualify can be waived:
The right of a party to disqualify a proposed neutral arbitrator pursuant to this section shall be waived if the party fails to serve the notice pursuant to the times set forth in this section, unless the proposed nominee or appointee makes a material omission or material misrepresentation in his or her disclosure. Except as provided in subdivision (d), in no event may a notice of disqualification be given after a hearing of any contested issue of fact relating to the merits of the claim or after any ruling by the arbitrator regarding any contested matter. Nothing in this subdivision shall limit the right of a party to vacate an award pursuant to Section 1286.2, or to disqualify an arbitrator pursuant to any other law or statute.
CCP § 1281.91(c).

Notably, Defendants submit that arbitration was commenced and the arbitrator was appointed on 10/11/13. Holland Decl. ¶ 2, Ex. 1. Plaintiff fails to submit any evidence that the notice of commencement of arbitration and appointment of arbitrator was not received. Therefore, even if Plaintiff’s evidence is credited (i.e., that the disclosure list was not received), Plaintiff had until 11/5/13 to give notice of disqualification of the arbitrator for the failure to provide the disclosure checklist. Plaintiff fails to submit any evidence that Plaintiff timely filed a notice of disqualification. This results in waiver of Plaintiff’s right to disqualify the arbitrator for failure to comply with CCP § 1281.9.

That CCP § 1281.91(c) does not limit the rights provided in CCP § 1286.2 does not help Plaintiff. Plaintiff’s motion does not assert that the arbitrator knowingly failed to disclose a ground for disqualification (CCP § 1286.2(a)(6)(A); see also CCP § 1281.9(c) (concerning a material omission or material misrepresentation)), or that the arbitrator failed to disqualify herself upon receipt of a timely demand to disqualify (CCP § 1286.2(a)(6)(B)). Plaintiff’s motion is entirely premised on the purported non-receipt of the arbitrator’s disclosure checklist, which is not a ground for vacating an arbitration award under CCP § 1286.2.

To the extent Plaintiff’s reply disputes the merits of the final arbitration award (Reply p. 7:13-8:24), “[a]n arbitrator’s decision generally is not reviewable for errors of fact or law.” (Ahdout v. Hekmatjah (2013) 213 Cal.App.4th 21, 33).

Therefore, the motion to vacate the arbitration award is denied.