Grabowski v. Kaiser Found. Health Plan, Inc., No. D076968 (May 10, 2021)
Plaintiff lost a medmal arbitration, in which she was pro se. During a break, while she wasn’t present, the arbitrator and defendant’s counsel had an ex parte conversation about the difficulties with the fact that plaintiff didn’t have a lawyer and her inefficacy as an advocate for herself. The lawyer and the arbitrator had a laugh about it. Unbeknownst to them, the conversation was recorded. Plaintiff’s mother, who had been recording the proceedings with her phone to make a record, had left it on during the break.
Arbitrators, of course, are not supposed to have ex parte discussions with one party’s lawyers about the other party. Because such communications are a potential grounds for disqualification as facts that might reasonably give rise to a doubt over the arbitrator’s impartiality if known by an objective observer, an arbitrator is required to disclose them. See Code Civ. Proc.§ 1281.9(a). A failure to do so is, effectively, structural error meriting the vacation of an arbitration award even without any showing of prejudice. See § 1286.2(a)(6)(A).) Which is what happens here.
Reversed.