Alper v. Rotella, No. G058088 (D4d3 May 5, 2021)
Under Code of Civil Procedure § 1281.91, an arbitrator is required to disqualify him or herself, “upon the demand of any party,” if a ground for DQing a sitting judge under § 170.1 is present. One of those grounds is an “impairment” that renders the judge (or arbitrator) “unable to properly perceive the evidence or . . . to properly conduct the proceeding.” § 170.1(a)(7). The arbitrator in this case had been in some kind of accident and was taking some pretty heavy pain meds. Arguably, that could be a ground for a DQ. But all the parties were made aware of the fact. And none of them objected during the proceedings.
But the losing party tried to vacate the award on that ground after the fact. No way. If a party wants a DQ, it has a statutory obligation to make a timely demand § 1281.91(d). Having known of the basis of a potential DQ and failed to timely raise it before the arbitrator, the losing party forfeited the ability to bring it up for the first time on a motion to vacate the award.
Affirmed.