2011-00115159-CU-PN

Catherine Carter Brister vs. Kaiser Permanente Medical Cente

Nature of Proceeding: Motion to Vacate Judgment

Filed By: Brister, Catherine Canter

Plaintiff Brister’s petition/motion to correct and/or vacate arbitrator’s order granting the
Kaiser defendants’ motion for summary judgment is DENIED, as follows.

In this action, plaintiff alleges medical malpractice against the Kaiser defendants. The
dispute was ordered to arbitration and the Kaiser defendants moved for summary
judgment on the grounds that they did not breach the applicable standard of care and
that any alleged breach was not the proximate cause of plaintiff’s injuries or damages.
When plaintiff failed to present any competent evidence in opposition to the motion,
the arbitrator gave plaintiff an additional 30 days to produce admissible evidence which
demonstrated a triable issue of material fact. Based on the present record, it appears
plaintiff submitted no admissible evidence or in particular, a declaration by a qualified
medical expert addressing the issues of standard of care and/or causation. As a
result, the arbitrator granted summary judgment for the Kaiser defendants.

In the present petition/motion, plaintiff appears to contend that she provided “definitive
evidence” of the “diagnosis & care treatment plan” which justified denial of summary
judgment and that she should have been given a second 30-day extension within
which to produce evidence in opposition to the summary judgment motion. Plaintiff’s
petition/motion concludes with a request for “a total review of the summary Judgment [
sic] granted” and “to vacate the Awarded Summary Judgment [sic].”

The Kaiser defendants oppose the present petition/motion, making several arguments.
Among others, defendants contend that plaintiff was given additional time to submit
evidence in opposition but she instead merely offered excerpts of her medical records,
which were clearly insufficient to show any triable issue of material fact with respect to
the standard of care or causation.

At the outset, the Court notes that the grounds on which an arbitration award may be
vacated are statutorily limited to the following:

(1) The award was procured by corruption, fraud or other undue means.
(2) There was corruption in any of the arbitrators.
(3) The rights of the party were substantially prejudiced by misconduct of a
neutral arbitrator.
(4) The arbitrators exceeded their powers and the award cannot be corrected
without affecting the merits of the decision upon the controversy submitted.
(5) The rights of the party were substantially prejudiced by the refusal of the
arbitrators to postpone the hearing upon sufficient cause being shown therefor
or by the refusal of the arbitrators to hear evidence material to the controversy
or by other conduct of the arbitrators contrary to the provisions of this title.
(6) 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.
(Code Civ. Proc. §1286.2)

Similarly, the grounds for correcting an arbitration award are limited and such relief is
available only where:

(1) There was an evident miscalculation of figures or an evident mistake in the
description of any person, thing or property referred to in the award;
(2) The arbitrators exceeded their powers but the award may be corrected
without affecting the merits of the decision upon the controversy submitted; or
(3) The award is imperfect in a matter of form, not affecting the merits of the
controversy. (Code Civ. Proc. §1286.6)

However, plaintiff has failed to demonstrate that any of the aforementioned grounds for
either vacating or correcting the arbitrator’s granting of summary judgment in favor of
the Kaiser defendants exists in the present case.

Moreover, while plaintiff specifically requests “a total review of the summary Judgment
[sic] granted,” this Court is largely precluded from reviewing the arbitrator’s decision in
this case. Specifically, the California Supreme Court has explained:

“As the courts of this state have repeatedly emphasized, the merits of a
controversy that has been submitted to arbitration are not subject to judicial
review. This means that we may not review the validity of the arbitrator’s
reasoning, the sufficiency of the evidence supporting the award, or any errors of
fact or law that may be included in the award.” (Moncharsh v. Heily & Blase
(1992) 3 Cal.4th 1, 11 (emphasis added).)

This same limitation has been reiterated multiple times by the courts of this state. “
Judicial review is severely limited because that result ‘vindicates the intentions of the
parties that the award be final, and because an arbitrator is not ordinarily constrained
to decide according to the rule of law….’ [Citations].)” (Harris v. Sandro (2002) 96
Cal.App.4th 1310, 1313 (emphasis added).) The exclusive grounds for judicial review
of arbitration awards are statutory and otherwise, arbitration awards are immune from
judicial review in proceedings to confirm or challenge the award. ( Trabuco Highlands
Community Assn. v. Head (2002) 96 Cal.App.4th 1183, 1188.)

Based on the foregoing, the present petition/motion must be and hereby is denied.

It is worth noting here that even if this Court were to review defendants’ earlier motion
for summary judgment, no error could be found. It is well established that a plaintiff
opposing a summary judgment motion must present competent, admissible evidence
which demonstrates the existence of some triable issue of material fact which
precludes judgment as a matter of law for the moving party, and that if plaintiff fails to
meet this burden of production, summary judgment must be granted for the moving
party. Here, the Court concurs with the arbitrator’s determination that plaintiff failed to
present any competent evidence showing a triable issue of material fact and thus, the
granting of summary judgment was proper.

This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)