McCarty v. Kaiser Foundation Hospitals CA2/4 ( 2023 )

Filed 4/26/23 McCarty v. Kaiser Foundation Hospitals CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(a). This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
KODY McCARTY, B313796
Petitioner and Appellant, (Los Angeles County
v. Super. Ct. No.
21STCP00455)
KAISER FOUNDATION
HOSPITALS et al.,
Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, treated as an original petition for writ of
mandate, Gregory Keosian, Judge. Petition denied.
Franklin L. Ferguson, Jr. for Petitioner and Appellant
Cole Pedroza, Kenneth R. Pedroza, Matthew S. Levinson;
La Follette, Johnson, DeHaas, Fesler & Ames, Brian M. Meadows
and Myra Firth for Respondents.
INTRODUCTION
Kody McCarty appeals from an order denying his petition
to vacate an arbitrator’s grant of summary judgment in favor of
Kaiser Foundation Hospitals and Southern California
Permanente Medical Group’s (collectively, Kaiser). Although an
order denying a petition to vacate an arbitrator’s award is not
appealable, we exercise our discretion to treat the appeal as a
petition for writ of mandate. For the reasons discussed below, we
deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
McCarty was a member of Kaiser’s health plan and
executed an arbitration agreement under which he agreed to
arbitrate claims of medical malpractice. In March 2019, McCarty
served Kaiser with a demand for arbitration, alleging medical
malpractice. McCarty alleged he had been “experiencing severe,
painful symptoms emanating from an initial misdiagnosis, as
well as a litany of prescribed medications, all originating from the
actions of Dr. Jeffrey Siegel.”
Kaiser moved for summary judgment, contending no triable
issues of material fact existed regrading Kaiser’s compliance with
the applicable standard of care in its treatment of McCarty.
McCarty opposed the motion, and submitted declarations from
two experts in support of his opposition. On October 28, 2020,
after hearing oral argument, the arbitrator granted Kaiser’s
motion. The arbitrator found McCarty’s experts presented no
reliable foundation for their opinions, and concluded McCarty
had not met his burden of showing a triable issue of fact exists.
On November 12, 2020, McCarty moved for a new trial. The
arbitrator denied the motion on January 11, 2021.
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On February 5, 2021, McCarty petitioned the superior
court to vacate the award. (Code Civ. Proc., § 1285.)1 He served
the petition on Kaiser on April 7, 2021. McCarty argued the
arbitrator exceeded her authority, refused to hear evidence useful
to settle the dispute, and failed to make timely disclosures.
Kaiser opposed the petition, arguing the petition is untimely
because it was served on Kaiser more than 100 days after the
date of service of the award (see § 1288), and, alternatively, there
is no statutory basis upon which to vacate the award. Kaiser also
asked the trial court to confirm the award.
The court denied the petition to vacate. It concluded the
petition was untimely and, even if it were timely, McCarty failed
to “articulate a basis upon which to grant relief.” McCarty
appeals from the order denying his petition to vacate.2
DISCUSSION
A. Appealability
Although Kaiser has not objected to McCarty’s appeal on
jurisdictional grounds, the existence of an appealable judgment
or order “is a jurisdictional prerequisite to an appeal.” (Jennings
v. Marralle (1994) 8 Cal.4th 121, 126.) We have an “independent
obligation” to review whether we have jurisdiction over an
1 All further undesignated statutory references are to the
Code of Civil Procedure.
2 We issued an order to show cause why the appeal should
not be dismissed as having been taken from a nonappealable
order. McCarty filed a response, and we deferred ruling until
after appellate briefs were filed. We address the issue in Section
A of the Discussion, infra.
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appeal. (California Redevelopment Assn. v. Matosantos (2011) 53
Cal.4th 231, 252.)
Section 1294 defines the arbitration orders that may be
appealed: “(a) An order dismissing or denying a petition to compel
arbitration. [¶] (b) An order dismissing a petition to confirm,
correct or vacate an award. [¶] (c) An order vacating an award
unless a rehearing in arbitration is ordered. [¶] (d) A judgment
entered pursuant to this title. [¶] (e) A special order after final
judgment.”
An order denying a petition to vacate an arbitration award
is not listed in section 1294, and therefore is not directly
appealable. (Kaiser Foundation Health Plan, Inc. v. Superior
Court (2017) 13 Cal.App.5th 1125, 1138, fn. 9 [“Section 1294’s list
of appealable orders does not include orders denying petitions to
confirm, correct, or vacate an award . . .”].) That is because, under
the California Arbitration Act (CAA), when a party petitions to
confirm, correct, or vacate an arbitration award, “‘the superior
court has only four choices: It may (1) confirm the award, (2)
correct the award and confirm it as corrected, (3) vacate the
award, or (4) dismiss the proceedings.’” (Law Offices of David S.
Karton v. Segreto (2009) 176 Cal.App.4th 1, 8.) Thus, after
denying the petition to vacate, the trial court ordinarily confirms
the arbitration award and enters an appealable judgment. (See
Mid-Wilshire Associates v. O'Leary (1992) 7 Cal.App.4th 1450,
1454-1455 (Mid-Wilshire).) But the trial court apparently did not
do so here. No final judgment confirming the award appears in
the record.
While we could dismiss the appeal for lack of appellate
jurisdiction (see Mid-Wilshire, supra, 7 Cal.App.4th at p. 1454),
we may deem an appeal from a nonappealable order as a petition
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for writ of mandate, provided there are “unusual circumstances.”
(Olson v. Cory (1983) 35 Cal.3d 390, 401.) We conclude such
circumstances are present here. Although Kaiser, in its
opposition to McCarty’s petition, requested the court confirm the
arbitration award, the court seemingly did not respond to its
request. Requiring McCarty to return to the trial court to obtain
an appealable judgment would impose needless delay and
unnecessary costs. Kaiser has not argued the issue of jurisdiction
and has substantively addressed the merits of the appeal. Under
these circumstances, we exercise our discretion to treat the
appeal as a petition for a writ of mandate.
B. Legal Principles and Standard of Review
“Any party to an arbitration in which an award has been
made may petition the court to confirm, correct or vacate the
award.” (§ 1285.) “A petition to vacate an award or to correct an
award shall be served and filed not later than 100 days after the
date of the service of a signed copy of the award on the
petitioner.” (§ 1288.)
“The scope of judicial review of arbitration awards
is extremely narrow because of the strong public policy in favor
of arbitration and according finality to arbitration awards.”
(Ahdout v. Hekmatjah (2013) 213 Cal.App.4th 21, 33 (Ahdout).)
Thus, “an arbitrator’s decision is not generally reviewable for
errors of fact or law, whether or not such error appears on the
face of the award and causes substantial injustice to the parties.”
(Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1,
6 (Moncharsh).) “However, Code of Civil Procedure section
1286.2 provides limited exceptions to this general rule.” (Ahdout,
supra, 213 Cal.App.4th at p. 33.) “The party seeking to vacate an
arbitration award bears the burden of establishing that one of the
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six grounds listed in section 1286.2 applies and that the party
was prejudiced by the arbitrator’s error.” (Royal Alliance
Associates, Inc. v. Liebhaber (2016) 2 Cal.App.5th 1092, 1106.)
McCarty relies on section 1286.2, subdivisions (a)(4) and
(a)(5) as the statutory basis for challenging the award.
Subdivision (a)(4) allows a court to vacate an award when “[t]he
arbitrators exceeded their powers and the award cannot be
corrected without affecting the merits of the decision upon the
controversy submitted.” (§ 1286.2, subd. (a)(4).) Under
subdivision (a)(5), the court shall vacate the award if “[t]he rights
of the party were substantially prejudiced . . . 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.” (§ 1286.2, subd. (a)(5).)
We review the trial court’s order denying McCarty’s
petition to vacate the arbitration award de novo. (Bacall v.
Shumway (2021) 61 Cal.App.5th 950, 957.)
C. Analysis
Preliminary, the parties dispute whether the petition is
timely under section 1288. Kaiser contends the petition is
untimely because McCarty served the petition on Kaiser more
than 100 days after the date of service of the arbitrator’s order
granting Kaiser’s motion for summary judgment. (See § 1288
[petition to vacate an award “shall be served and filed not later
than 100 days after the date of the service of a signed copy of the
award on the petitioner”].) McCarty counters that the 100-day
clock did not start ticking until the arbitrator served the order
denying McCarty’s motion for a new trial. It follows, according to
McCarty, that his petition to vacate is timely because he filed and
served the petition within 100 days of the date of service of the
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order denying his motion for a new trial. But even if we assume
without deciding that the petition is timely, as discussed in
greater detail below, McCarty has not established any of the
conditions for vacating an arbitration award set out in section
1286.2, subdivision (a).
McCarty contends the arbitrator exceeded her authority by:
(1) granting summary judgment on the issue of informed consent
when, according to McCarty, the issue is ordinarily a question for
the trier of fact and expert testimony is not necessary to establish
the absence of informed consent; (2) declining to find the alleged
lack of informed consent caused McCarty’s injuries; (3)
“rejecti[ng]” McCarty’s “expert testimony”; and (4)
“disregard[ing]” statements in McCarty’s declaration purportedly
establishing damages. We conclude the crux of these arguments
is a challenge to the legal and factual findings of the arbitrator,
placing it beyond the permissible scope of our review.
An arbitrator exceeds her powers within the meaning of
section 1286.2, subdivision (a)(4) by issuing an award that
“violates a party’s unwaivable statutory rights or that
contravenes an explicit legislative expression of public policy.”
(Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909, 916.) But,
“‘“[a]rbitrators do not ordinarily exceed their contractually
created powers simply by reaching an erroneous conclusion on a
contested issue of law or fact, and arbitral awards may not
ordinarily be vacated because of such error. . . .””’ (Id. at p. 917.)
McCarty fails to identify an “unwaivable statutory right”
purportedly violated by the award. Nor does he identify an
“explicit legislative expression of public policy.” The closest he
comes is vaguely asserting the arbitrator disregarded summary
judgment standards, which “compose a very significant aspect of
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California’s public policy ‘bedrock.’” Holding an arbitrator
exceeded her powers every time she supposedly violated
“summary judgment standards”—by e.g., granting a summary
judgment motion when, in the petitioner’s view, evidence
established triable issues of fact—would “permit the exception to
swallow the rule of limited judicial review; a litigant could always
contend the arbitrator erred and thus exceeded [her] powers.”
(Moncharsh, supra, 3 Cal.4th at p. 28.) Accordingly, we reject
McCarty’s contention that vacation of the award is warranted
under section 1286.2, subdivision (a)(4) merely because, in his
view, the arbitrator erroneously concluded no issues of material
fact existed on the issue of informed consent, and found
McCarty’s expert declarations to be conclusory and lack
foundation.
McCarty also seeks vacatur of the award under section
1286.2, subdivision (a)(5), which applies when “[t]he rights of the
party were substantially prejudiced . . . by the refusal of the
arbitrator[ ] to hear evidence material to the controversy.”
McCarty argues the arbitrator prejudiced McCarty’s rights by
failing to consider the medical records cited by his experts, on the
purportedly erroneous ground that the records had not been
properly authenticated.
“The “vacation of an award for ‘refusal . . . to hear evidence
material to the controversy’ . . . must rest on more than a simple
error in applying the rules of evidence.” (Heimlich v. Shivji (2019)
7 Cal.5th 350, 368 (Heimlich).) “Instead, it was designed as a
‘safety valve in private arbitration that permits a court to
intercede when an arbitrator has prevented a party from fairly
presenting its case.’ [Citation.] It comes into play, for example,
when an arbitrator, without justification, permits only one side to
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present evidence on a disputed material issue.” (Ibid.) “To allow
an arbitration award to be set aside under section 1286.2,
subdivision (a)(5), whenever an erroneous legal ruling results in
the exclusion of evidence deemed important would undermine a
foundation of the Arbitration Act, that an arbitrator’s legal error
ordinarily is not judicially reviewable.” (Id. at p. 370.)
Here, McCarty’s contention that the arbitrator erred by
ruling the records were not properly authenticated targets an
alleged error of law (i.e., that the arbitrator misapplied the rules
of evidence), taking it beyond the scope of our review. (Heimlich,
supra, 7 Cal.5th at p. 370.) Moreover, McCarty fails to
demonstrate substantial prejudice from the alleged error, but
merely states (without explanation) that exclusion of the records
“negatively prejudice[ed] [his] cause.”
For these reasons, we conclude McCarty failed to
demonstrate the trial court erred in denying his petition to vacate
the arbitration award.3
3 We note that McCarty argued in the trial court that the
arbitrator failed to disclose within the time for disclosure a
ground for disqualification of which the arbitrator was then
aware. (§ 1286.2, subd. (a)(6)(A).) McCarty mentions this issue for
the first time in the conclusion of his appellate brief, perhaps
inadvertently, because the sentence is in a paragraph that
appears to have been copied and pasted from McCarty’s petition
to vacate the arbitration award. Because McCarthy does not
argue the point and support it with reasoned argument and
reference to legal authority, we deem this contention forfeited
and decline to address it further. (See Benach v. County of Los
Angeles (2007) 149 Cal.App.4th 836, 852 [points of error raised
but unsupported by reasoned argument and citations to legal
authority may be treated as forfeited].)
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DISPOSITION
The petition for writ of mandate is denied. Kaiser is
awarded its costs in this proceeding.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, Acting P. J.
We concur:
COLLINS, J.
DAUM, J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to Article VI, section 6, of the California
Constitution.
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