Filed 4/27/23 New England Wire Technologies v. Cooner Sales 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

NEW ENGLAND WIRE 

TECHNOLOGIES 

CORPORATION 

et al.,

Plaintiffs and Appellants,

v.

COONER SALES COMPANY, 

LLC et al.,

Defendants and 

Respondents.

 B320514

 (Los Angeles County

 Super. Ct. No.21STCV43375)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Stephen I. Goorvitch, Judge. Affirmed.
2

Grignon Law Firm, Margaret M. Grignon, Anne M. 

Grignon; Hill, Farrer & Burrill, William A. White, G. Cresswell 

Templeton for Plaintiffs and Appellants.

Weinstein Law Firm and David R. Weinstein; Quintairos, 

Prieto, Wood & Boyer, David G. Halm; Larson, Steve E. Bledsoe, 

Jerry A. Behnke, Andrew J. Bedigian for Defendant and 

Respondent Cooner Sales Company; 

Schnader Harrison Segal & Lewis, Bruce B. Kelson, 

Stephen H. Dye for Defendant and Respondent American 

Arbitration Association. 

INTRODUCTION 

Appellants New England Wire Technologies Corporation 

and New England Electric Wire Corporation (collectively New 

England) have been engaged in arbitration proceedings with 

respondents Cooner Sales Co., LLC and Cooner Enterprises, Inc. 

(collectively Cooner entities) since 2009. Respondent American 

Arbitration Association, Inc. (AAA) is the administrator of the 

long-running arbitration, which has included approximately 100 

evidentiary hearings before a three-arbitrator panel and resulted 

in four interim awards.

In 2021, New England sought to disqualify all three 

arbitrators based on their failure to disclose that an attorney who 

represented Cooner Sales from 2015 to 2019 was also an active 

AAA arbitrator. New England also sought supplemental 

disclosures regarding the business relationship between that 

attorney and AAA. After the arbitrators and AAA refused New 

England’s demands, New England filed a complaint in superior 

court asserting causes of action for provisional remedies under 
3

Code of Civil Procedure section 1281.8,1 unfair competition under 

Business and Professions Code section 17200 et seq. (UCL), 

equitable severance of any provision in the arbitration agreement 

requiring use of AAA, and declaratory and injunctive relief

including cessation of the current arbitration proceedings and 

starting anew with a new arbitral administrator. Respondents 

separately filed demurrers to the complaint.

New England subsequently moved to disqualify the law 

firm representing Cooner Sales. New England alleged that an 

attorney disqualified from the arbitration in 2014 recently joined 

the firm, and his affiliation precluded the firm’s further 

participation in the superior court and arbitration proceedings. 

Cooner Sales opposed the motion.

The superior court sustained all three demurrers without 

leave to amend. On the causes of action asserted under section 

1281.8, the court ruled that New England sought remedies 

beyond the scope of section 1281.8 and failed to show that 

provisional remedies were necessary in any event. It further 

concluded the arbitrators were not required to make the 

requested disclosures, and, even if they were, New England failed 

to timely seek disqualification. In light of these rulings, the court 

further concluded that there were no bases upon which to grant 

equitable severance or declaratory or injunctive relief. The court 

also rejected the UCL claim, which sounded against AAA only, as 

derivative of the other causes of action. The court denied New 

England’s motion to disqualify Cooner Sales’s counsel as moot. 

On appeal, New England contends the court erred by 

sustaining the demurrers without leave to amend and by 

1 All further statutory references are to the Code of Civil 

Procedure unless otherwise indicated. 
4

declining to address its motion to disqualify counsel. We affirm. 

New England has not demonstrated an entitlement to relief 

under section 1281.8, it failed to challenge the ruling on the 

equitable severance cause of action, and its other claims are 

derivative or subject to arbitral immunity. New England has not 

cited any authority requiring the superior court to resolve 

motions to disqualify prior to resolving other dispositive motions, 

and we decline to infringe on the court’s wide discretion to control 

proceedings before it. The request for judicial notice is denied.

BACKGROUND2

I. The Parties 

New England designs, manufactures, and sells custom wire 

and cable. New England and a predecessor of the Cooner entities 

formed a partnership to distribute New England’s products in 

seven western states. In 1996, that partnership became Cooner 

Sales, a member-managed LLC Cooner Sales is governed by an 

operating agreement between its two members, New England 

Wire Technologies Corporation and Cooner Enterprises. New 

England Electric Wire Corporation holds a 35 percent 

membership interest in Cooner Sales, and Cooner Enterprises

holds the remaining 65 percent. Cooner Sales is and always has 

been managed by the three principals of Cooner Enterprises.

AAA is a provider of arbitration services. 

2 We draw the substantive factual allegations concerning the 

parties and the arbitration from New England’s complaint. We 

must accept these allegations as true for purposes of this appeal. 

(See Mathews v. Becerra (2019) 8 Cal.5th 756, 761-762.) We draw 

the limited and largely undisputed facts concerning Richmond’s 

disqualification from New England’s motion to disqualify Larson 

LLP. 
5

II. The Fifth Arbitration

The Cooner Sales operating agreement contains an 

arbitration provision stating that “[a]ny controversy or claim 

arising out of, or relating to this Agreement, or to the 

interpretation, breach or enforcement thereof, shall be settled by 

arbitration in Los Angeles, California in accordance with the 

rules then obtaining of the American Arbitration Association.” 

New England and Cooner Sales have arbitrated several disputes 

pursuant to this provision since 1998. Cooner Sales initiated the 

arbitration at issue, “the Fifth Arbitration,” in 2009, by asserting 

claims against New England. New England counter-claimed 

against both Cooner Sales and Cooner Enterprises. AAA is the 

administrator of the still-ongoing Fifth Arbitration, over which 

AAA arbitrators Peter D. Collisson, Paul E. Burns, and Hon. 

James M. Slater (Ret.) (collectively “the panel” or “the 

arbitrators”) are presiding. 

The lengthy Fifth Arbitration has been divided into 

multiple phases, and the parties have participated in 

approximately 100 evidentiary hearing days, most recently on 

May 31, 2019. The panel has issued four interim awards, most 

recently on March 31, 2021. The interim awards have been a 

mixed bag for the parties: on the one hand, the panel has 

determined that Cooner Sales is entitled to “millions of dollars” in 

unpaid commissions and profit disgorgements from New 

England; on the other, it has agreed with New England that the 

parties’ distribution agreement ended in 2016, Cooner Sales

improperly paid Cooner Enterprises’s legal expenses, and Cooner 

Sales should be dissolved unless Cooner Enterprises buys out 

New England Electric Wire Corporation’s interest in the LLC. 
6

III. Arbitration Counsel

A. Arbitrators Disqualify Cooner Entities’ Counsel

In 2014, the fifth year of the Fifth Arbitration, attorney 

Rick Richmond and his then-law firm, Jenner & Block, associated 

into the arbitration as counsel of record for both Cooner entities. 

New England filed an action in superior court seeking to 

disqualify Richmond and Jenner & Block due to an alleged 

conflict of interest between Cooner Sales and Cooner Enterprises

arising from New England’s counterclaims against Cooner Sales. 

The superior court referred the matter to the arbitrators, who

ultimately granted the motion. 

B. Cooner Sales Retains O’Brien and Larson LLP

Shortly thereafter, in January 2015, attorney Robert C.

O’Brien and his then-law firm Arent Fox LLP associated into the 

arbitration as counsel for Cooner Sales only. They filed an 

updated notice of appearance in April 2015. O’Brien 

subsequently left Arent Fox LLP to join a new firm, Larson 

O’Brien LLP, as a named partner. O’Brien and Larson O’Brien 

LLP continued to represent Cooner Sales. In September 2019, 

O’Brien left Larson O’Brien LLP to serve as National Security 

Advisor to former president Donald Trump. O’Brien withdrew as 

Cooner Sales’s counsel at that time, although the newly renamed 

Larson LLP continued to represent Cooner Sales in the Fifth 

Arbitration. 

IV. O’Brien’s Alleged Conflicts

A. Disclosures Relating to O’Brien

When O’Brien initially associated into the matter in early 

2015, arbitrators Collisson and Burns represented that they did 

not have any additional disclosures relating to O’Brien or Arent 

Fox LLP. Arbitrator Slater disclosed that he previously served as 
7

an arbitrator on three cases in which Arent Fox LLP represented 

parties. Slater stated that those previous matters would not 

affect his neutrality in this case. 

In response to a request from Collisson that the parties 

advise the panel if they were aware of any relationships requiring 

disclosure, O’Brien sent AAA’s Manager of ADR Services a letter 

on February 4, 2015. O’Brien’s letter stated, “pursuant to AAA 

Commercial Arbitration Rules and Mediation Procedures, Rule R17, Arent Fox is unaware of any circumstance likely to give rise 

to justifiable doubt as to the impartiality or independence of the 

arbitrators in this matter . . . including any bias or financial or 

personal interest in the result of the arbitration or any past or 

present relationship with the parties or their representatives.” 

Neither the panel nor O’Brien made any further disclosures. 

B. O’Brien’s Alleged Conflicts of Interest 

New England alleges that, at the time O’Brien sent his 

disclosure letter, “(a) he was an active roster member of the AAA, 

which is the DRPO [dispute resolution provider organization] in 

the Fifth Arbitration; (b) he intended to accept arbitration 

matters as a AAA arbitrator while he simultaneously represented 

[Cooner Sales] before the AAA panel members, who were all 

active co-members of the AAA’s arbitration roster with O’Brien; 

and (c) he also intended to market and promote the AAA’s 

services and/or be one of its speakers while he was also counsel 

for [Cooner Sales] in the Fifth Arbitration.” New England alleges 

that neither O’Brien, the panel, nor AAA informed it of these 

facts.

C. New England Discovers the Alleged Conflicts 

New England alleges: “In August 2021, New England’s 

counsel discovered that O’Brien had returned to his law firm 
8

(now Larson LLP) as ‘Partner Emeritus.’ While attempting to 

determine O’Brien’s status, New England’s counsel inadvertently 

learned for the first time that, while representing [Cooner Sales] 

in the Fifth Arbitration from 2015 to Fall 2019, O’Brien had 

simultaneously been serving as an AAA arbitrator in multiple 

other matters. Subsequently, New England’s counsel also 

inadvertently learned that, during the same time, O’Brien also 

served as an active AAA roster member and/or, upon information 

and belief, an active AAA marketer, promoter, and/or speaker. 

While O’Brien had offhandedly indicated in an early colloquy 

with the Panel that he had previously stood in their shoes as a 

AAA arbitrator or been a speaker at the AAA’s request, neither 

he, nor the Fifth Arbitration Panel members, nor the AAA, ever 

disclosed to New England that O’Brien was, in fact, an active 

AAA roster member, intended to accept AAA cases as an 

arbitrator, and market or promote the AAA, all the [sic] while he 

was simultaneously representing [Cooner Sales] before the three 

AAA roster members who presided over the Fifth Arbitration. As 

a result, New England reasonably entertains doubts about 

whether the Panel has been or is able to be impartial in the Fifth 

Arbitration, including, whether and to what extent O’Brien’s 

simultaneous business relationship with the AAA may have 

impacted the administration of the proceedings vis-à-vis the AAA 

and the Panel.” 

V. New England Requests Arbitrator Disqualification 

and Supplemental Disclosures

On September 24, 2021, New England requested in writing 

that the arbitrators disqualify themselves and disclose the full 

nature and extent of the business relationship between the AAA 
9

and O’Brien during O’Brien’s representation of Cooner Sales. 

The arbitrators declined recusal on October 4, 2021. 

On October 5, 2021, New England requested that the panel 

respond to its request for additional disclosures. The arbitrators 

responded to this request on October 12, 2021, stating that they 

would not “impose any requirement in this case that [they] 

disclose Robert O’Brien’s present or past status as a AAA 

arbitrator.” They further stated that they had no obligation to 

investigate or disclose “the full nature and extent of O’Brien’s 

business relationship with the AAA,” and instead were obligated 

only to “restate the extent we knew Mr. O’Brien—not to report 

whether he was a [sic] AAA arbitrator.” The arbitrators also 

asserted that if anyone had such an obligation, it was the AAA, 

not the individual arbitrators. 

On October 15, 2021, New England sent a letter to the AAA 

requesting disclosure of the full extent of O’Brien’s business 

relationship with the AAA from the time of his association into 

the case in January 2015 to the time of his departure from 

Larson O’Brien LLP in September 2019. New England also sent 

the panel a “Notice of Disqualification to Panel Members.” 

The AAA responded to New England’s letter on October 25, 

2021, stating: “AAA declines [New England’s] request for 

information regarding AAA and [Cooner Sales’s] former counsel 

Robert O’Brien. Standard 8(b) of California’s Ethics Standards 

for Neutral Arbitrators in Contractual Arbitration calls for 

additional provider organization-related disclosures only in 

consumer arbitration cases. . . . Because this matter is not a 
10

consumer arbitration, AAA will not provide the requested 

information absent party agreement.”3

The AAA’s Administrative Review Council denied New 

England’s notice of disqualification on November 9, 2021. It 

concluded the panel “should be reaffirmed as arbitrator for this 

case.” The AAA further asserted that its decision was 

“conclusive,” and any further objections to the panel “must be 

based on new grounds.” 

VI. New England Files Suit in Superior Court 

On November 24, 2021, New England filed a complaint 

against Cooner Sales, Cooner Enterprises, and AAA in superior 

court. In addition to the preceding allegations, it alleged that the 

panel “engaged in a series of irregular actions” that would cause 

a person aware of the facts to reasonably entertain a doubt about 

the panel’s impartiality after O’Brien appeared in the arbitration 

proceedings. The “irregular actions” “appeared to favor [Cooner 

Sales] immediately, in the long term, and/or when considered in 

the aggregate.” They included “repeatedly expanding the period 

for which [Cooner Sales] could seek monetary relief and 

repeatedly interjecting the Panel’s unilateral requests for 

additional evidence into the arbitration proceedings, even though 

the parties had already presented their respective cases.” New 

England further alleged that the panel’s “failed disclosures and 

usurpation of the Fifth Arbitration have been very costly,” in that 

3 In accordance with section 1281.85, the Judicial Council 

adopted ethics standards and requirements for neutral 

arbitrators. The standards are intended to “guide the conduct of 

arbitrators, to inform and protect participants in arbitration, and 

to promote public confidence in the arbitration process.” (Ethics 

Standards for Neutral Arbitrators, Standard 1(a).))
11

the panel had collected approximately $4.9 million in fees during 

the Fifth Arbitration, including approximately $3.5 million

incurred after O’Brien appeared. Each of New England’s five 

causes of action incorporated all preceding allegations. 

In the first cause of action, New England sought 

provisional relief against the Cooner entities under section 

1281.8. New England alleged that the arbitrators’ failure to 

supplement their disclosures and disqualify themselves 

“constitutes ongoing wrongful conduct, which unless and until 

enjoined and restrained by order of this Court, will cause great 

and irreparable injury” to New England. It alleged that it had 

“no adequate remedy at law for the injuries currently being 

suffered” and likely to be suffered, namely the “lost right to an 

undoubtedly impartial arbitral proceeding.” It requested as relief

“a temporary restraining order, an order to show cause, a 

preliminary injunction, and a permanent injunction disqualifying 

the current arbitration Panel and setting aside all interim 

awards issued by this disqualified Panel of arbitrators,” all of 

which it asserted were “essential to avoid irreparable injury to 

New England and to prevent the arbitration proceedings from 

being rendered ineffectual.” 

In its second cause of action, New England sought 

provisional relief under section 1281.8 against the Cooner 

entities and AAA. New England alleged that arbitrators 

Collisson and Burns actively practiced law throughout the Fifth 

Arbitration and “may have represented parties in AAA 

proceedings.” It further alleged that AAA “failed and is incapable 

of providing the requisite case management services it advertises, 

including, [sic] a complete, reliable, sufficient, and definitive 

record of the arbitration proceedings,” and required New England
12

to create a “document repository at great effort and expense, 

under severe and unfair time pressure, and subject to the Panel’s 

order and threat that any evidence or other materials would be 

excluded from the record if not timely included in the repository.” 

New England requested “a temporary restraining order, an order 

to show cause, a preliminary injunction, and a permanent 

injunction disqualifying the Panel, setting aside all Interim 

Awards issued by the disqualified AAA-appointed panel, 

precluding the AAA from continuing as the DRPO for arbitration 

proceedings between New England and [the] Cooner [entities], 

and ordering that a different DRPO conduct arbitration 

proceedings between [the] Cooner [entities] and New England 

anew.” 

In its third cause of action, New England alleged that AAA 

engaged in unfair competition in violation of the UCL. New 

England alleged that AAA maintains a “secret arbitrator roster” 

that is “comprised of a substantial number of actively practicing 

attorneys who may represent or consult with clients in AAA 

arbitration proceedings presided over by other AAA arbitrators 

who also may be actively practicing attorneys.” New England

alleged that AAA “provides or can provide” its arbitrators with 

access to the roster, “at least regarding other roster members who 

represent parties before them so that the arbitrator may disclose 

the relationship to the parties,” but does not do so as a matter of 

policy in non-consumer arbitrations. New England alleged this 

policy was contrary to AAA’s advertising, which represents that 

AAA will “err on the side of transparency” and its arbitrators 

“should disclose” any “relationship of interest [that] crosses the 

arbitrator’s mind.” New England also alleged that AAA requires 

its roster members to “pledge to support the AAA and also to 
13

actively support both its policies and practices,” including 

recommending the use of AAA and its rules, to remain on the 

roster. Accordingly, New England alleged, AAA arbitrators’ 

financial success is “closely tied to the AAA’s business success 

and business model,” and arbitration parties aware of these 

circumstances might reasonably entertain a doubt about their 

impartiality when an opposing party is represented by a member 

of the roster. For these and other reasons, New England sought 

“to enjoin the AAA and its arbitrators: (a) from continuing to 

engage in such violations; and (b) from proceeding further with 

the Fifth Arbitration, particularly pending a determination on 

the merits of this complaint.” 

In its fourth cause of action, New England sought 

“equitable severance of arbitration agreement term or condition” 

against the Cooner entities. It alleged that AAA’s unfair and 

unlawful business practices “render any interpretation of the 

[Cooner Sales] Operating Agreement to require New England to 

use the AAA as a DRPO both unconscionable and inequitable, 

both in theory in and practice,” and New England would not be 

assured of impartial proceedings “so long as any AAA arbitrator 

presides over the arbitration proceedings or the AAA is the 

DRPO.” New England acknowledged that the arbitration 

provision in the Cooner Sales operating agreement “does not 

expressly require that the parties use the AAA as the DRPO, only 

that they arbitrate using the AAA’s then-obtaining rules,” and 

explained it sought to restrict any interpretation of the 

agreement to use AAA as the DRPO. It clarified that it was not 

seeking monetary damages or restitution, but “merely a ruling 

that the arbitration proceed anew before arbitrators affiliated 

with a different DRPO and administered by that DRPO, utilizing 
14

the AAA Commercial Arbitration Rules (aside from the rules 

dealing with the selection of arbitrator(s)).” 

In its fifth cause of action for declaratory relief against all 

defendants, New England sought “declaratory judgments and 

injunctive relief . . . including, without limit, declarations that 

the Panel members and AAA violated their disclosure and 

disqualification obligations under applicable law, that there is no 

requisite record of the Fifth Arbitration proceedings, that the 

current arbitration Panel and AAA are disqualified, and that the 

arbitration proceedings should proceed anew with a different 

DRPO than the AAA.” 

VII. Demurrers 

Cooner Sales, Cooner Enterprises, and AAA each 

separately demurred to New England’s complaint. 

Larson LLP filed Cooner Sales’s demurrer on January 14, 

2022. Cooner Sales generally demurred to the complaint in its 

entirety under section 430.10, subdivision (e), asserting it failed 

to state facts sufficient to constitute a cause of action. It also 

specifically demurred to each of the causes of action against it. 

Cooner Sales asserted that the first and second causes of action 

for provisional relief under section 1281.8 were legally deficient 

because New England failed to plead facts “demonstrating that (i) 

a final award will be rendered ineffectual and it will suffer 

irreparable harm absent provisional relief, (ii) it is likely to 

succeed on the merits, and (iii) there is no adequate remedy at 

law.” It further asserted that the potential harm to Cooner Sales

“significantly outweighs the potential harm to New England if 

the Court upends the Fifth Arbitration.” With respect to the 

fourth cause of action for equitable severance, Cooner Sales

argued that New England failed to identify a valid legal or 
15

factual basis for the requested relief. Cooner Sales asserted that 

the fifth cause of action for declaratory relief was legally 

deficient, based on untimely objections to the panel, and did not 

concern a justiciable controversy. 

Cooner Enterprises also filed a demurrer on January 14, 

2022. Like Cooner Sales, it generally demurred on the grounds 

that New England failed to allege facts or law sufficient to 

constitute causes of action. Cooner Enterprises asserted the first 

and second causes of action for provisional relief under section 

1281.8 failed to allege “facts sufficient to demonstrate the 

Arbitrators’ final award will be ineffectual; that without 

provisional relief, New England will suffer irreparable harm that 

outweighs harm to Cooner Enterprises an injunction would 

cause; that it (New England) is likely to succeed on the merits of 

its disqualification theory; or that New England has inadequate 

remedies at law.” Cooner Enterprises argued that the fourth and 

fifth causes of action failed because they were “entirely 

dependent” on the deficient first and second causes of action, and 

also did not allege facts warranting the relief requested. 

AAA filed its demurrer on January 18, 2022. It argued that 

the second, third, and fifth causes of action were legally deficient 

because AAA was immune from suit under the doctrine of 

arbitral immunity, AAA was not a necessary or proper party to 

the action, and New England waived any right to sue AAA by 

agreeing to its Commercial Arbitration Rules. 

All three defendants filed requests for judicial notice in 

support of their demurrers. AAA requested that the court take 

judicial notice of its Commercial Arbitration Rules, which were 

cited in New England’s complaint. Cooner Sales and Cooner 

Enterprises requested that the court take judicial notice of 
16

several arbitral documents in support of their demurrers, 

including New England’s demands for disqualification and 

disclosure, the arbitrators’ and AAA’s responses, and the fourth 

interim award. 

New England opposed the demurrers and requests for 

judicial notice. 

VIII. Motion to Disqualify Larson LLP 

On January 18, 2022, four days after Cooner Sales filed its 

demurrer, New England filed a motion to disqualify Larson LLP 

from representing Cooner Sales. New England asserted that the 

arbitrators previously disqualified attorney Richmond and his 

then-law firm, Jenner & Block, from representing both Cooner 

Sales and Cooner Enterprises due to an actual conflict 

precipitated by New England’s counterclaims against the Cooner 

entities. New England further asserted that, on August 30, 2021, 

it learned that Richmond had joined Larson LLP. New England

asserted that Larson LLP did not notify New England or the 

arbitrators of Richmond’s affiliation with Larson LLP. 

New England asserted that it raised the issue in its 

September 24, 2021 demand that the arbitrators disqualify 

themselves, but did not file a motion to disqualify Larson LLP in 

the arbitration because the arbitrators’ own alleged need for 

disqualification deprived them of “the jurisdiction or authority ‘to 

consider, act upon, or decide a motion to disqualify Larson LLP.’” 

Cooner Sales nevertheless opposed the disqualification of its 

counsel in its opposition to New England’s demand to disqualify 

the arbitrators. According to New England, Cooner Sales claimed 

Larson LLP obtained an ethics opinion and consent from Cooner 

Enterprises before it hired Richmond, and also implemented an 
17

ethical screen; neither Larson LLP nor Cooner Sales shared this 

information with New England. 

New England argued disqualification was required because 

Richmond already had been disqualified, and concerns about the 

duty of loyalty mandated the vicarious disqualification of any 

firm he subsequently associated with. It further argued that the 

conflict at issue could not be resolved by the consent of Cooner 

Sales or Cooner Enterprises, and consent from New England was 

required but not given. New England argued that it had 

standing to seek disqualification and was timely in its efforts to 

do so. New England’s counsel filed a declaration in support of the 

motion, to which he attached 17 supportive exhibits. New 

England also filed a request for judicial notice in support of the 

motion, and an ex parte request that the motion to disqualify be 

heard before the demurrers.

Cooner Sales opposed the motion to disqualify its counsel. 

It also filed declarations from members of Larson LLP, including 

Richmond, in support of the opposition. Cooner Sales contended 

there was never a conflict of interest between Cooner Sales and 

Cooner Enterprises in the first place, and the previous 

disqualification of Richmond should not be imputed to Larson 

LLP. It also asserted that New England lacked standing to 

disqualify its counsel and filed the motion for an improper 

purpose. Cooner Sales opposed the ex parte request to advance 

the hearing of the motion to disqualify. 

IX. Hearing and Ruling

A. Hearing 

The superior court granted in part New England’s request 

to advance the hearing on the motion to disqualify Larson LLP 

and rescheduled the hearings on all pending motions to the same 
18

date. Prior to the hearing, the court issued a tentative ruling 

stating an intention to sustain the demurrers without leave to 

amend and deny the motion to disqualify Larson LLP as moot.

At the hearing, the court expressed concern that New 

England was “taking an interlocutory appeal of a matter that 

would be resolved at the end of an arbitration and you are asking 

me to essentially supervise the arbitration.” The court stated 

that the Code of Civil Procedure included procedures to vacate an 

arbitration award issued by biased arbitrators, but “that’s at the 

end of the case.” The court heard arguments from all parties on 

these substantive issues. It also heard extensive argument 

regarding the motion to disqualify Larson LLP, and whether that 

motion needed to be resolved prior to the demurrers.

At the conclusion of the hearing, the court requested 

supplemental briefing on two issues related to the motion to 

disqualify: (1) whether the court was required to resolve the 

motion before ruling on the demurrers, and (2) whether New 

England was required to raise the disqualification issue with the 

arbitrators before seeking relief in the superior court. New 

England and Cooner Sales filed supplemental briefing addressing 

the court’s questions. The court took the matter under 

submission upon receipt of the supplemental briefing. 

B. Ruling

On April 11, 2022, the court issued a written order denying 

the requests for judicial notice, sustaining the demurrers without 

leave to amend, and denying the motion to disqualify Larson LLP 

as moot. The court concurrently entered an order dismissing the 

action with prejudice. 

In the written order, the court stated that it sustained the 

Cooner entities’ demurrers to the first and second causes of action 
19

for provisional relief “for multiple independent reasons.” First, 

the court ruled that New England “seek[s] a remedy beyond the 

scope authorized by Code of Civil Procedure section 1281.8.” The 

court explained that section 1281.8 authorized only “provisional” 

or temporary remedies aimed at maintaining the status quo, such 

as temporary restraining orders, writs of possession, and 

appointment of receivers. The court found that New England

instead sought “affirmative relief from the court,” namely 

removing the arbitrators and DRPO, vacating all interim awards, 

and starting the arbitration anew. The court concluded such 

expansive relief was beyond that authorized by the plain 

language of section 1281.8. The court added that even if it were 

to look beyond the plain language of section 1281.8, it would 

decline to afford the requested relief on the grounds that doing 

would “undermine the intent of section 1285, et seq., which is that 

arbitrations proceed without judicial interference and such 

matters are resolved at the conclusion of the arbitration 

proceeding.” 

In the alternative, the court concluded that New England

failed to establish that provisional relief was necessary and it had 

no adequate remedy at law. Quoting Azteca Construction, Inc. v. 

ADR Consulting, Inc. (2004) 121 Cal.App.4th 1156, 1167 (Azteca), 

it reiterated that the “‘penalty for noncompliance’ with applicable 

disclosure requirements is ‘judicial vacation of the arbitration 

award,’” which constituted an adequate remedy at law. It further 

concluded that New England failed to demonstrate a likelihood of 

success on the merits, because the disclosures it wanted the 

arbitrators to make were required only in consumer arbitrations, 

and O’Brien’s mere appearance on the roster of AAA arbitrators 

“raises no question whether they would be fair and impartial.” 
20

The court added that even if New England were likely to succeed 

on the merits, it “waived the right to seek disqualification on this 

issue” by failing to timely seek disqualification of the arbitrators 

after O’Brien’s comments regarding his relationship with AAA. 

The court sustained the demurrer to the third cause of 

action for unfair competition, concluding “it is derivative of the 

first and second causes of action.” The court also sustained the 

demurrers to the fourth cause of action for equitable severance 

and the fifth cause of action for declaratory relief “for the reasons 

discussed” in connection with the first and second causes of 

action. It added that declaratory relief was not warranted 

because such relief “‘should not be used for the purpose of 

anticipating and determining an issue which can be determined 

in the main action.’” 

The court denied the motion to disqualify Larson LLP as 

moot, “having ruled that Plaintiffs’ action is untenable as a 

matter of law.” It rejected New England’s contention that it was 

required to resolve the disqualification motion before ruling on 

the demurrers, noting New England’s acknowledgement that 

“California courts have not directly answered this question” and 

citing its inherent power to control matters pending before it. 

The court explained that policy considerations did not change its 

ruling, because “no unfair advantage would be afforded to 

[Cooner Sales] by ruling on the demurrer before ruling on the 

motion for disqualification. Mr. Richmond’s employment at 

Larson LLP does not affect the court’s interpretation of section 

1281.8 and its application to the facts alleged in the complaint.” 

The court also added that it declined to resolve the 

disqualification motion first in part due to New England’s 

“gamesmanship”: “Plaintiffs’ insistence that the court rule on 
21

this motion first is nothing more than an attempt to have this 

court issue an order of disqualification against Larson LLP, 

which Plaintiffs would then cite as collateral estoppel before the 

arbitration panel. The arbitration panel—not this court—should 

resolve any issue whether Mr. Richmond’s employment precludes 

Larson LLP from continuing to represent [Cooner Sales] in the 

arbitration.”4

New England timely appealed. It also filed a request that 

we take judicial notice of the complaint it filed in 2014 to 

disqualify Richmond, and the superior court’s ruling in that case. 

That motion is denied as unnecessary to resolution of this appeal.

(See JRS Products, Inc. v. Matsushita Electric Corp. of America

(2004) 115 Cal.App.4th 168, 174 & fn. 4.) 

DISCUSSION 

I. Demurrers 

New England contends the court improperly sustained the 

demurrers because its complaint alleged facts sufficient “to state 

disqualification of both the arbitrators and AAA,” “to state UCL 

claims against AAA,” 

A. Standard of Review 

A demurrer tests the legal sufficiency of the factual 

allegations in a complaint. (Title Ins. Co. v. Comerica Bank–

California (1994) 27 Cal.App.4th 800, 807.) We review de novo 

the dismissal of a civil action after a demurrer is sustained 

without leave to amend. (Cantu v. Resolution Trust Corp. (1992) 

4 Cal.App.4th 857, 879 (Cantu).) In doing so, “we determine 

4 Cooner Sales represents in its brief, without citation to the 

record, that New England filed a motion to disqualify Larson LLP 

in the Fifth Arbitration shortly after the superior court issued its 

ruling, and the motion remains pending. 
22

whether the complaint states facts sufficient to constitute a cause 

of action.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “‘We 

treat the demurrer as admitting all material facts properly 

pleaded, but not contentions, deductions or conclusions of fact or 

law.’” (Ibid.) “Further, we give the complaint a reasonable 

interpretation, reading it as a whole and its parts in their 

context.” (Ibid.)

The appellant bears the burden of demonstrating that the 

superior court erroneously sustained the demurrer as a matter of 

law. (Rakestraw v. California Physicians’ Service (2000) 81 

Cal.App.4th 39, 43.) To establish that a cause of action has been 

adequately pled, an appellant must demonstrate he or she has 

alleged “facts sufficient to establish every element of that cause of 

action. [Citation.]” (Cantu, supra, 4 Cal.App.4th at pp. 879–880.) 

If the complaint fails to plead any essential element of a 

particular cause of action, we affirm the sustaining of a 

demurrer. (Ibid.) Additionally, “[w]e review the correctness of 

the trial court’s action in sustaining the demurrer, not the court’s 

statement of reasons for its action.” (Martis Camp Community 

Assn. v. County of Placer (2020) 53 Cal.App.5th 569, 610.) 

Accordingly, “[w]e affirm the judgment if it is correct for any 

reason, regardless of the trial court’s stated reasons.” (MKB 

Management, Inc. v. Melikian (2010) 184 Cal.App.4th 796, 802.)

We review an order denying leave to amend for an abuse of 

discretion. “If we find that an amendment could cure the defect, 

we conclude that the trial court abused its discretion and we 

reverse; if not, no abuse of discretion has occurred.” (Schifando v. 

City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) The appellant 

bears the burden of demonstrating the manner in which the 

complaint might be amended. (Ventura29 LLC v. City of San 
23

Buenaventura (2023) 87 Cal.App.5th 1028, 1037; Blank v. 

Kirwan, supra, 39 Cal.3d at p. 318.) 

B. First and Second Causes of Action

In its first and second causes of action, New England

sought provisional relief under section 1281.8. “Provisional 

remedies” authorized by section 1281.8 “include[] the following: 

(1) Attachments and temporary protective orders . . . [;] (2) Writs 

of possession . . . [;] (3) Preliminary injunctions and temporary 

restraining orders issued pursuant to Section 527[; and] (4) 

Receivers appointed pursuant to Section 564.” (§ 1281.8, subd. 

(a).) A party to an arbitration proceeding may apply for a 

provisional remedy under section 1281.8 “only upon the ground 

that the award to which the applicant may be entitled may be 

rendered ineffectual without provisional relief.” (§ 1281.8, subd. 

(b).) This is because the statute “does not speak to any and all 

types of harm. It addresses only a circumstance in which a party 

might prevail in an arbitration but still have no recourse due to 

some changing condition.” (Riverside County Sheriff’s 

Department v. Stiglitz (2014) 60 Cal.4th 624, 633.)

“[T]he possibility that an arbitration award might be 

rendered ineffectual is a threshold or minimum requirement.” 

(Woolley v. Embassy Suites, Inc. (1991) 227 Cal.App.3d 1520, 

1529 (Woolley).) “The logical reason” for this requirement “is to 

ensure that the court does not invalidate the province of the 

arbitrator—i.e., the court should be empowered to grant 

provisional relief in an arbitrable controversy only where the 

arbitrator’s award may not be adequate to make the aggrieved 

party whole.” (Id. at p. 1527.) Beyond this minimum 

requirement, the ordinary statutory or common law requirements 

for obtaining the desired provisional remedy still apply; section 
24

1281.8 was intended to preserve the rules of equity that generally 

apply in the context of provisional relief. (Id. at p. 1528; see also 

California Retail Portfolio Fund GMBH & Co. KG v. Hopkins 

Real Estate Group (2011) 193 Cal.App.4th 849, 856.) Thus, a 

party seeking injunctive relief pursuant to section 1281.8 must 

demonstrate that it satisfies the traditional requirements for 

such relief: “that the applicant is likely to prevail on the merits, 

has no adequate alternative remedy, and will suffer irreparable 

harm if the injunction is denied.” (Davenport v. Blue Cross of 

California (1997) 52 Cal.App.4th 435, 450.)

1. Adequate Alternative Remedy

The failure of the arbitrators to disqualify themselves is not 

a “changing condition” that might leave New England with no 

recourse against the Cooner entities. This alone severely 

undermines the claims for provisional relief under section 1281.8.

Even if we assume a final arbitration award would be ineffectual 

due to the arbitrators’ failure to disqualify themselves, the 

existence of an adequate alternative remedy is clear. The 

California Arbitration Act, § 1280, et. seq., addresses both the 

grounds for disqualification of an arbitrator and the remedy if the 

arbitrator improperly fails to disqualify himself or herself. 

Section 1281.91, subdivision (d) states in part, “If any ground 

specified in Section 170.1 exists, a neutral arbitrator shall 

disqualify himself or herself upon the demand of any party made 

before the conclusion of the arbitration proceeding.” If the 

arbitrator “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,” the 

superior court must vacate the arbitration award. (§ 1286.2, 
25

subd. (a)(6); see also Haworth v. Superior Court (2010) 50 Cal.4th 

372, 381 (Haworth).)

New England acknowledges that vacatur of a final 

arbitration award is “one means of judicial enforcement,” but 

contends “[i]mmediate review also makes sense” because a 

disqualified arbitrator lacks the power, right, or privilege to hear 

a case. We disagree. Numerous cases demonstrate that the 

appropriate remedy when an arbitrator fails to make required 

disclosures is vacatur of the final award pursuant to section 

1286.2, subdivision (a)(6). (See, e.g., Haworth, supra, 50 Cal.4th 

at p. 383 [“In the event Ossakow establishes that Judge Gordon 

failed to make a required disclosure, she is entitled to vacation of 

the arbitration award”]; Grabowski v. Kaiser Foundation Health 

Plan, Inc. (2021) 64 Cal.App.5th 67, 80 [“The arbitrator did not 

make the required disclosure. [Section 1286.2, subdivision 

(a)(6)(A)] therefore requires that the arbitration award be 

vacated, without any further showing.”]; Roussos v. Roussos

(2021) 60 Cal.App.5th 962, 974 [“[D]espite Ted’s notice of 

disqualification, the arbitrator refused to disqualify himself. The 

trial court was therefore required to vacate the award under 

section 1286.2, subdivision (a)(6)(B).”]; Honeycutt v. JPMorgan 

Chase Bank, N.A. (2018) 25 Cal.App.5th 909, 930 [“under section 

1286.2, the arbitrator’s failure to disclose the four arbitrations 

with counsel for Chase was a failure ‘to disclose within the time 

required for disclosure a ground for disqualification of which the 

arbitrator was then aware,’ which requires vacatur of the 

award”]; Azteca, supra, 121 Cal.App.4th at p. 1169 [“Since . . .

Taylor’s pre-arbitration disqualification was mandatory, the 

award to ADR Consulting must be vacated.”].) “‘A remedy is not 

inadequate merely because more time would be consumed by 
26

pursuing it through the ordinary course of law.’” (Baeza v. 

Superior Court (2011) 201 Cal.App.4th 1214, 1221.)

New England relies on Advantage Medical Services, LLC. v. 

Hoffman (2008) 160 Cal.App.4th 806 (Advantage Medical) to 

support its contention that interim awards “may be subject to 

immediate judicial review.” In Advantage Medical, an AAA

arbitrator who was also a practicing attorney allowed “coverage 

counsel” for Advantage Medical’s insurer to be present during the 

arbitration hearing. (Advantage Medical, supra, 160 Cal.App.4th 

at p. 811.) When counsel announced her appearance as “coverage 

counsel for Lloyds [sic] of London,” the arbitrator did not inquire 

into the identity of the Lloyd’s syndicates counsel represented, 

nor did he disclose that he and his law firm represented “P & I 

Clubs” that were “directly tied to Lloyd’s of London through 

maritime syndicates.” (Id. at p. 812.) 

Hoffman discovered this information only after the 

arbitrator issued an interim award in Advantage Medical’s favor. 

(Advantage Medical, supra, 160 Cal.App.4th at p. 812.) Hoffman 

alerted AAA to the issue and requested disqualification of the 

arbitrator and additional disclosures. (Ibid.) After the arbitrator

declined to respond to the request for disclosures and refused to 

disqualify himself, and AAA confirmed his appointment, Hoffman 

filed suit in superior court. (Id. at pp. 812-813.) Specifically, 

Hoffman “filed a petition for an order disqualifying the arbitrator 

under section 1281.91, subdivision (a)(1) and (2) and vacating the 

interim award under sections 1286 and 1286.2, subdivision 

(a)(6).” (Id. at p. 813.) The superior court concluded the 

arbitrator violated Ethics Standard 7 (“Standard 7”) of the Ethics 

Standards for Neutral Arbitrators in Contractual Arbitrators 

(“Ethics Standards”) and section 1281.9 by failing to disclose his 
27

relationship with Lloyd’s syndicates, and that a person aware of 

the facts could reasonably entertain a doubt as to the arbitrator’s 

impartiality. (Id. at p. 815.) It accordingly disqualified the 

arbitrator and vacated the interim award under section 1286.2, 

subdivision (a)(6). (See id. at pp. 816-817.) Advantage Medical 

appealed. The appellate court reversed the superior court’s order 

disqualifying the arbitrator but affirmed vacatur of the award 

after concluding the superior court’s ruling was supported by 

substantial evidence. (Id. at pp. 818-819.)

Advantage Medical is distinguishable procedurally. First, 

the appellate court did not discuss the interim nature of the 

challenged arbitration award. Cases are not authority for 

propositions they do not consider. (B.B. v. County of Los Angeles

(2020) 10 Cal.5th 1, 11.) Second, Hoffman did not seek 

provisional relief under section 1281.8; instead, she pursued 

vacatur of the award under section 1286.2, subdivision (a)(6), the 

prescribed avenue for relief when an arbitrator fails to make 

required disclosures or disqualify himself or herself. (See Azteca, 

supra, 121 Cal.App.4th at p. 1167 [the “penalty for 

noncompliance” with disclosure requirements is “judicial vacation 

of the arbitration award”].) Third, the appellate court reversed 

the superior court’s order disqualifying the arbitrator because it 

concluded that the California Arbitration Act “does not provide 

for the disqualification of an arbitrator after he or she has ruled 

on an issue of contested fact.” (Advantage Medical, supra, 160 

Cal.App.4th at p. 810.) It held that the petition to disqualify the 

arbitrator “was not viable because he had already issued the 

interim award,” and Hoffman’s “recourse was to seek vacatur of 

the interim award based on [the arbitrator’s] failure to comply 

with disclosure requirements.” (Id. at p. 821.) According to New 
28

England’s brief, disqualification of the arbitrators is the very 

relief it seeks, despite their issuance of four interim awards. 

Advantage Medical is directly contrary to this request. 5

2. No Likelihood of Success on the Merits

a. No Duty to Disclose

New England argues that it alleged facts sufficient to 

prevail on the merits, namely that the arbitrators had a duty to 

inquire about and disclose O’Brien’s relationships with AAA 

under the applicable statutes and Ethics Standards. The 

superior court found this argument wanting, as do we.

To ensure that arbitrators serve as impartial 

decisionmakers, the California Arbitration Act “requires the 

arbitrator to disclose to the parties any grounds for 

disqualification.” (Haworth, supra, 50 Cal.4th at p. 381.) 

“Within 10 days of receiving notice of his or her nomination to 

5 Section 1281.91, subdivision (d) provides that “[i]f any 

ground specified in Section 170.1 exists, a neutral arbitrator shall 

disqualify himself or herself upon the demand of any party made 

before the conclusion of the arbitration proceeding.” Advantage 

Medical did not discuss the impact of this provision on the 

timeliness of Hoffman’s petition, despite her reliance on section 

1281.9, subdivision (a)(1), which requires arbitrators to disclose 

“[t]he existence of any ground specified in Section 170.1 for 

disqualification of a judge.” Even if section 1281.91, subdivision 

(d) extends the timeframe in which a party may seek 

disqualification beyond the resolution of a contested issue of fact, 

the party still must “show the omitted disclosures were 

disqualifying within the meaning of the governing statutes and 

ethics standards as a matter of law.” (Speier v. The Advantage 

Fund, LLC (2021) 63 Cal.App.5th 134, 151 (Speier).) As 

discussed more fully below, New England did not make that 

showing.
29

serve as a neutral arbitrator, the proposed arbitrator is required, 

generally, to ‘disclose all matters that could cause a person aware 

of the facts to reasonably entertain a doubt that the proposed 

arbitrator would be able to be impartial.’” (Ibid., quoting 

§ 1281.9, subd. (a).) Matters that must be disclosed include 

“[a]ny matters required to be disclosed by the ethics standards for 

neutral arbitrators adopted by the Judicial Council . . .,” and 

“[a]ny professional or significant personal relationship the 

proposed neutral arbitrator . . . has or has had with any party to 

the arbitration proceeding or lawyer for a party.” (§ 1281.9, subd. 

(a)(2), (6).) Arbitrators must also disclose “[t]he existence of any 

ground specified in Section 170.1 for disqualification of a judge” 

(§ 1281.9, subd. (a)(1)), including any reason “[a] person aware of 

the facts might reasonably entertain a doubt that the judge 

would be able to be impartial.” (§ 170.1, subd. (a)(6)(A)(iii).) “The 

Ethics Standards require the disclosure of ‘specific interests, 

relationships, or affiliations’ and other ‘common matters that 

could cause a person aware of the facts to reasonably entertain a 

doubt that the arbitrator would be able to be impartial.’” 

(Haworth, supra, 50 Cal.4th at p. 381.) Ethics Standard 7 sets 

forth numerous matters that must be disclosed by a person 

nominated or appointed as an arbitrator. (See generally Ethics 

Standards for Neutral Arbitrators, Standard 7.) It also provides 

that the duty of disclosure is a continuing one. (See Ethics 

Standards for Neutral Arbitrators, Standard 7(c), (f).) 

Ethics Standard 8 lists additional disclosures that must be 

made in consumer arbitrations,6 including “[a]ny significant past, 

6 “A ‘consumer arbitration’ is ‘an arbitration conducted under 

a predispute arbitration provision contained in a contract’ where 
30

present, or currently expected financial or professional 

relationship or affiliation between the administering dispute 

resolution provider organization and a party or lawyer in the 

arbitration.” (Ethics Standards for Neutral Arbitrators, 

Standard 8(b)(1).) It expressly provides that “[a]n arbitrator is 

not required to make the disclosures required by this standard if 

he or she reasonably believes that the arbitration is not a 

consumer arbitration based on reasonable reliance on a consumer 

party’s representation that the arbitration is not a consumer 

arbitration.” (Ethics Standards for Neutral Arbitrators, 

Standard 8(a)(2).) 

New England acknowledges that the Fifth Arbitration is 

not a consumer arbitration, and asserts that it is not relying on 

Ethics Standard 8 here. However, it relies on Gray, which held 

that a superior court erred in denying a section 1286.2 petition to 

vacate an arbitration award where the arbitrator failed to comply 

with Ethics Standard 8. (See Gray, supra, 212 Cal.App.4th at pp. 

1364-1366.) New England asserts that Gray stands for the 

broader proposition that disclosure of the DRPO-attorney 

relationship required by Ethics Standard 8 is also required under

section 1281.9, subdivision (a)(1), the catchall provision requiring 

disclosure of all matters that could cause a person aware of the 

facts to reasonably entertain a doubt that the proposed arbitrator 

would be able to be impartial. New England specifically points to 

a footnote in Gray stating that a reasonable person could doubt 

the ability of the arbitrator to be impartial where he and an 

attorney in the matter belonged to the same DRPO, knew of one 

the ‘consumer party was required to accept the arbitration 

provision in the contract.’” (Gray v. Chiu (2013) 212 Cal.App.4th 

1355, 1363 fn. 4, quoting Ethics Standard 2(d)(3).) 
31

another’s affiliation prior to the arbitration, and worked from the 

same office where photographs of the DRPO’s arbitrators were 

displayed. (See Gray, supra, 212 Cal.App.4th at pp. 1360, 1364, 

fn. 5.) 

This broad reading of Gray does not square with the

explicit proviso in Ethics Standard 8(a)(2) that the disclosures

required by Ethics Standard 8 are not required unless the 

arbitration is a consumer arbitration. Even if Gray bore the 

weight New England seeks to place upon it, New England did not 

allege facts nearly as egregious as those summarized in the 

footnote. There are no allegations in the complaint that O’Brien

and the arbitrators knew one another, shared an office, or even 

saw one another prior to the arbitration. The disclosure of their 

shared affiliation with AAA was thus not required unless, “under 

the specific facts and circumstances of the case, the information 

could reasonably raise a doubt in a person aware of the facts and 

about the arbitrator’s impartiality.” (Speier, supra 63 

Cal.App.5th at pp. 149-150.) This standard is an objective one 

(id. at pp. 147-148), and “‘[a]n impression of possible bias in the 

arbitration context means that one could reasonably form a belief 

that an arbitrator was biased for or against a party for a 

particular reason.’” (Haworth, supra, 50 Cal.4th at p. 389.) Here, 

although New England alleges the arbitrators were biased, it also 

alleges that the arbitrators’ rulings and interim awards have 

been mixed, with some favoring the Cooner entities and others 

favoring New England. An objective observer would not 

reasonably entertain a doubt about the arbitrators’ impartiality. 

b. Delay in Seeking Relief

Even if disclosures were required, New England’s delay in 

requesting them provides an alternative basis for affirming the 
32

ruling. Advantage Medical is instructive. There, Hoffman sought 

to obtain additional disclosures and disqualify the arbitrator 

shortly after learning that he and his firm had a connection to 

Lloyd’s of London. Here, New England explicitly alleges that 

O’Brien “offhandedly indicated in an early colloquy with the 

Panel that he had previously stood in their shoes as a AAA 

arbitrator or been a speaker at the AAA’s request.” Rather than 

seek further disclosures from or disqualification of the arbitrators 

at that time, New England waited an additional six years to raise 

the issue. “If a party learns the arbitrator failed to disclose 

information relevant to disqualification, the party must object ‘at 

the earliest practicable opportunity after discovery of the facts 

constituting the ground for disqualification.’ (§ 170.3, subd. 

(c)(1).) ‘While failure to disclose properly a ground for 

disqualification generally mandates vacation of the award, this 

rule only applies if the party moving to vacate “had no reason to 

know of the existence of a nondisclosed matter.” [Citation.] If a 

party is “aware that a disclosure is incomplete or otherwise fails 

to meet the statutory disclosure requirements,” the party “cannot 

passively reserve the issue for consideration after the arbitration 

has concluded.”’ [Citation.]” (Alper v. Rotella (2021) 63 

Cal.App.5th 1142, 1152-1153; see also Goodwin v. Comerica 

Bank, N.A. (2021) 72 Cal.App.5th 858, 870 (Goodwin).)7 New 

England pleads its awareness in the complaint. 

7 Both New England and Cooner Sales relied on Goodwin

during oral argument. Although Goodwin supports the 

proposition that section 1281.91, subdivision (d) extends the time 

to seek disqualification beyond a hearing on any contested issue 

of fact where “any ground specified in Section 170.1 exists” (see 

Goodwin, supra, 72 Cal.App.5th at p. 869), it also holds that a 
33

In its briefing and during oral argument, New England 

suggested it was excused from acting in 2015 because O’Brien’s 

comments suggested only a previous affiliation with AAA, not a 

current one. However, “[c]ourts have also held that if the 

arbitrator disclosed information or a party had actual knowledge 

of information putting the party on notice of a ground for 

disqualification, yet the party failed to inquire further, the 

arbitrator’s failure to provide additional information regarding 

the same matter does not justify vacating the award.” (Mt. 

Holyoke Homes, L.P. v. Jeffer Mangels Butler & Mitchell, LLP

(2013) 219 Cal.App.4th 1299, 1314.) Here, New England alleges 

actual knowledge of at least a potential conflict of interest 

involving O’Brien as early as 2015. Its delay in raising concerns 

precludes it from demonstrating the likelihood of prevailing on 

the merits necessary to support injunctive relief under section 

1281.8. 

For all these reasons, the superior court properly sustained 

the demurrers to the first and second causes of action. New 

England asserts that it “should be allowed to take discovery and 

amend its complaint to allege additional facts about O’Brien’s 

undisclosed, extensive AAA relationships for the nearly five years 

he was Cooner [Sales]’s lead counsel in the arbitration,” but it 

gives no indication what its additional allegations may be or how 

they may cure the defects in its claims. We thus are unable to 

conclude the court abused its discretion by denying leave to 

amend. (See Moore v. Centrelake Medical Group Inc. (2022) 83 

Cal.App.5th 515, 537. 

party is “required to ‘object “at the earliest practicable 

opportunity after discovery of the facts constituting the ground 

for disqualification[.]”’” (Id. at p. 870.) 
34

C. Remaining Causes of Action

1. Third Cause of Action

The superior court also sustained respondents’ demurrers 

to the third, fourth, and fifth causes of action. In the third cause 

of action, New England alleged that AAA’s business model 

(including its “secret roster” and policies of not disclosing when 

counsel belongs to AAA and requiring pledges of support) and 

advertising campaigns touting transparency were unfair, false, 

and misleading, in violation of the UCL. The superior court 

sustained AAA’s demurrer to this cause of action on the grounds 

that it was “derivative of the first and second causes of action.” 

New England contends it stated a valid UCL claim. It highlights

AAA’s alleged policy of not disclosing “when a party is 

represented in AAA arbitrations by a lawyer who is an AAA 

arbitrator,” which it asserts is unlawful because it violates 

sections 170.1, subd. (a)(6)(A)(iii) and 1281.9, subdivision (a)(1), 

both of which require disqualification of an arbitrator where a 

person aware of the facts might reasonably entertain a doubt as 

to an arbitrator’s impartiality. New England adds that parties to 

AAA arbitrations might entertain such doubt if “an adverse 

party’s lawyer is an active AAA arbitrator and may also accept 

AAA matters during arbitration,” or if they knew “the lawyer and 

arbitrator had pledged to always promote AAA.” 

The UCL broadly defines unfair competition as “any 

unlawful, unfair or fraudulent business act or practice and 

unfair, deceptive, untrue or misleading advertising.” (Bus. & 

Prof. Code, § 17200.) For instance, a business practice may be 

“unfair” under the UCL even if not prohibited by other law. 

(Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 
35

1134, 1143.) “While the scope of conduct covered by the UCL is 

broad, its remedies are limited. [Citation.] A UCL action is 

equitable in nature; damages cannot be recovered.” (Id. at p. 

144.) Plaintiffs are generally limited to restitution or injunctive 

relief. (Ibid.) New England requests the latter here, specifically 

preliminary and permanent injunctions staying the arbitration 

proceedings, enjoining the arbitrators and AAA from continuing 

to engage in the alleged disclosure and disqualification violations, 

and enjoining the arbitrators and AAA from proceeding further 

with the arbitration. 

Though there is considerable overlap between the 

allegations of the UCL claim and those made elsewhere in the 

complaint, it is a stretch to deem the UCL claim wholly 

derivative of the others. The claim here rests on at least some 

allegations outside its other causes of action—in particular, its 

allegations about AAA’s allegedly false advertising of case 

management services. (Medical Marijuana, Inc. v. 

ProjectCBD.com (2020) 46 Cal.App.5th 869, 896 [UCL claim is 

wholly derivative where it is based solely on allegations of other 

claims].) Presumably cognizant of this, New England and AAA 

both address another basis on which AAA demurred to the cause 

of action: arbitral immunity.

Arbitral immunity shields arbitrators from “‘court actions 

for their activities in arriving at their award.’” (Stasz v. Schwab

(2004) 121 Cal.App.4th 420, 430 (Stasz).) The doctrine is well 

established in California. (Ibid.) “The application of arbitral 

immunity does not turn on whether the act is discretionary 

instead of ministerial or administrative.” (Id. at p. 431.) Instead, 

it shields all functions that are integrally related to the arbitral 

process, even where arbitrators fail to exercise proper care, skill, 
36

or impartiality in their performance of arbitral functions.8 (Id. at 

pp. 431, 438.) Arbitral immunity extends “to organizations that 

sponsor arbitrations, like the AAA.” (Id. at p. 433.) 

New England contends its third cause of action cannot be 

subject to arbitral immunity because arbitral immunity only 

shields arbitrators and DRPOs from liability for damages, and 

UCL claims can only seek equitable relief. AAA responds it is 

entitled to arbitral immunity. It cites La Serena Properties, LLC 

v. Weisbach (2010) 186 Cal.App.4th 893 (La Serena), which we 

find materially indistinguishable from the instant case. 

In La Serena, parties to an arbitration administered by 

AAA sued the arbitrator and the AAA “alleging five separate 

causes of action, all of which arise out of the alleged failure of 

arbitrator Weisbach to disclose a certain conflict of interest 

during the appointment process”—a romantic relationship with 

the sibling of an attorney representing the party opposing 

plaintiffs. (La Serena, supra, 186 Cal.App.4th at p. 896, 897.) 

The plaintiffs sought “damages, as well as other relief”; their 

causes of action included a UCL claim alleging false advertising. 

(Id. at pp. 896, 899-900.) Weisbach and the AAA both filed 

demurrers contending that the suit was barred by arbitral 

immunity for quasi-judicial acts. (Id. at p. 900.) The superior 

court agreed and sustained the demurrers without leave to 

amend. (Ibid.) 

The appellate court affirmed. It concluded there was “no 

doubt that the alleged failure to make adequate disclosures of 

potential conflicts of interest falls within the scope of the absolute 

8 Stasz reiterates that the “remedy for arbitrator bias or 

misconduct is a civil action seeking to vacate the arbitration 

award.” (Stasz, supra, 121 Cal.App.4th at p. 438.) 
37

immunity for quasi-judicial acts.” (Id. at p. 903.) The court 

rejected the plaintiffs’ contention that arbitral immunity did not 

reach their claims for “conspiracy to commit fraud while soliciting 

arbitration business.” (Id. at pp. 905-906.) It emphasized that 

“the gravamen of [plaintiffs’] claims against Weisbach and AAA 

relates to the failure to disclose a proposed relationship with a 

party that was required to be disclosed,” and concluded that 

“creative pleading” could not circumvent the doctrine. (Id. at p. 

906.) Notably, the court found support in an analogous case 

holding that plaintiffs could not evade the litigation privilege “by 

trying to frame a derivative cause of action for violating the 

Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.).” 

(Ibid.) The court held the “alleged claims of misconduct, no 

matter how pleaded, all arise out of the conflict of interest 

disclosure procedure that is integrally part of the arbitration 

process” and affirmed the judgment in full, even as to the UCL 

claim. (Id. at pp. 896-897.) 

New England argues La Serena is distinguishable because 

it involved claims for damages in addition to those seeking 

equitable relief. We are not persuaded. Nothing in the reasoning 

of La Serena depends on a distinction between claims for 

monetary damages (which, in any event, are not an available 

remedy under the UCL) and claims for equitable relief. Much 

like La Serena, the gravamen of New England’s UCL claim is a 

challenge to the arbitration’s disclosure process. The claim 

concerns the arbitrators’ and AAA’s failure to disclose any 

information about O’Brien, and even the bulk of the advertising 

allegations concern representations about disclosure and 

transparency. The remedy that New England seeks is, in part, 

an injunction enjoining the ongoing arbitration. That its UCL 
38

claim seeks injunctive relief does not alter the fact that New 

England hopes to use the UCL to impose collateral liability on 

AAA based upon AAA’s conduct of functions integral to the 

process of an arbitration in which New England is a party—

precisely what arbitral immunity forbids. The other authorities 

on which New England relies do not involve efforts by arbitration 

parties to interfere with the arbitration process, and do not 

address the concerns raised in La Serena. In addition, those 

authorities are largely federal, and at least one is unpublished. 

None is as analogous or persuasive as La Serena, which we follow 

here in light of the circumstances of this case. 

New England has not demonstrated how it would amend 

the third cause of action to avoid arbitral immunity. Therefore, 

we decline to find the superior court abused its discretion by 

denying leave to amend.

2. Fourth Cause of Action

New England does not make any substantive arguments 

regarding the fourth cause of action, which sought equitable 

severance of any portion of the Cooner Sales operating agreement 

that required the use of AAA as a DRPO, in its opening brief. 

New England mentions the fourth cause of action in a footnote of 

its reply brief, asserting that the facts giving rise to a reasonable 

doubt as to the arbitrators’ impartiality “also support [New 

England’s] fourth claim to sever such requirement.” This belated 

and terse allusion to the fourth cause of action does little to 

demonstrate the court erred in sustaining the demurrer without 

leave to amend. (See Badie v. Bank of America (1998) 67 

Cal.App.4th 779, 784-785 [“When an appellant fails to raise a 

point, or asserts it but fails to support it with reasoned argument 
39

and citations to authority, we treat the point as waived.”].) We 

accordingly find no basis to disturb that ruling.

3. Fifth Cause of Action

With regard to the fifth cause of action for declaratory 

relief, New England contends it adequately alleged the “actual 

controversy relating to the legal rights and duties of the 

respective parties” required by section 1060. It further asserts 

that “AAA’s disqualification would not be determined in the 

arbitration between the parties, and could not be duplicative.” 

“Where a trial court has concluded the plaintiff did not 

state sufficient facts to support a statutory claim and therefore 

sustained a demurrer as to that claim, a demurrer is also 

properly sustained as to a claim for declaratory relief which is 

‘wholly derivative’ of the statutory claim.” (Ball v. FleetBoston 

Financial Corp. (2008) 164 Cal.App.4th 794, 800; see also § 1061 

[“The court may refuse to exercise the power granted by this 

chapter in any case where its declaration or determination is not 

necessary or proper at the time under all the circumstances.”].) 

The fifth cause of action seeks a declaratory judgment providing, 

among other things, “Plaintiffs’ interpretation of the Panel 

members’ investigation, disclosure, and disqualification 

obligation is correct;” “Given the facts of this case, a person might 

reasonably entertain a doubt that the arbitrators could be 

impartial”; “The Panel members violated their duties of 

investigation, disclosure, and disqualification under applicable 

law”; “New England has no adequate remedy at law . . .”; “The 

Panel members are disqualified as arbitrators in the Fifth 

Arbitration”; “All interim awards issued by the Panel are set 

aside”; “The AAA’s refusal to order the Panel members to 

supplement their disclosures and disqualify themselves 
40

constitutes wrongful conduct”; and “The AAA’s wrongful conduct 

entitles New England to all the provisional remedies [and 

injunctive relief] it seeks in its Complaint.” These requests are 

virtually identical to the allegations and demands made in the 

first and second causes of action. The superior court accordingly 

properly sustained the demurrer to the fifth cause of action

without leave to amend.

II. Motion to Disqualify Counsel

New England contends the superior court erred by 

declining to address its motion to disqualify Cooner Sales’s 

counsel. It further contends it should not need to “re-raise” the 

issue of disqualification with the arbitrators, because they 

already disqualified Richmond in 2015, and the disqualification 

of Richmond’s new firm, Larson LLP, should be automatic and 

unwaivable by consent or ethical screening. New England also 

asserts it has standing to seek disqualification, and did so 

promptly. We need only address its first contention, which we 

reject.

It is “well established that courts have fundamental 

inherent equity, supervisory, and administrative powers, as well 

as inherent power to control litigation before them.” (Rutherford 

v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967.) These 

inherent powers permit superior courts to exercise reasonable 

control over all proceedings connected with pending litigation, 

including rules of procedure, to ensure the orderly administration 

of justice. (Ibid.) The Legislature also has recognized and 

codified this authority, which encompasses the ability to 

disqualify an attorney. (Ibid.; § 128, subd. (a)(5); see Cal Pak 

Delivery, Inc. v. United Parcel Service, Inc. (1997) 52 Cal.App.4th

1, 8, 9 (Cal Pak).)
41

The exercise of these inherent and statutory powers is a 

matter vested within the sound discretion of the superior court, 

and is subject to review under the abuse of discretion standard. 

(See Schimmel v. Levin (2011) 195 Cal.App.4th 81, 87

(Schimmel).) The court’s discretion is not boundless, however; it 

is limited by applicable legal principles, and its rulings may be 

reversed if they lack a reasonable basis. (Cal Pak, supra, 52 

Cal.App.4th at p. 9.) 

New England cites federal authority holding that “a district 

court must reach the merits of a disqualification motion before 

ruling on a dispositive motion.” (Bowers v. Ophthalmology Group

(6th Cir. 2013) 733 F.3d 647, 654-655; see also Grimes v. District 

of Columbia (D.C. Cir. 2015) 794 F.3d 83, 90 [“Once a party 

moves to disqualify an adverse party’s counsel, the district court 

may not entertain a dispositive motion filed by the very counsel 

alleged to be conflicted until the court has first determined 

whether that counsel is disqualified.”].) Federal appellate court 

decisions are not binding on this court, though we may consider 

their persuasive value. (People v. Brooks (2017) 3 Cal.5th 1, 90.)

New England also cites as “instructive” three Court of 

Appeal cases: Schimmel, supra, 195 Cal.App.4th at pp. 87-88, Cal 

Pak, supra, 52 Cal.App.4th at pp. 7-10, and Jarvis v. Jarvis

(2019) 33 Cal.App.5th 113 (Jarvis). None of these cases holds 

that a court must rule on a disqualification motion before ruling 

on a dispositive motion. 

In Schimmel, the appellate court concluded the superior 

court did not abuse its discretion by resolving a motion to 

disqualify prior to ruling upon a petition to compel arbitration 

filed by the challenged attorney. (See Schimmel, supra, 195 

Cal.App.4th at pp. 86-88.) The appellant contended that the 
42

superior court should have granted the petition, then stayed the 

action to permit the arbitrator to resolve the remaining motions, 

including the motion to disqualify. (Id. at p. 86.) The appellate 

court rejected this argument. Relying on section 128, subdivision 

(a)(5), it held that the superior court “possesses the power to 

control judicial proceedings in the furtherance of justice,” and did 

not abuse that discretion by resolving the motions in the order it 

did. (Id. at p. 87.) 

In Cal Pak, the superior court disqualified Cal Pak’s 

counsel after he “admitted he had offered to sell out his client and 

the class which the client was seeking to represent for a payment 

to himself personally of approximately $8 to $10 million.” (Cal 

Pak, supra, 52 Cal.App.4th at pp. 5-6.) On the same day, the 

superior court sustained a demurrer to Cal Pak’s complaint 

without leave to amend; the appellate court “observe[d] that it is 

unclear whether the grant of the demurrer in this action 

preceded or followed the disqualification ruling.” (Id. at pp. 7, 9.) 

The appellate court nevertheless rejected counsel’s argument 

that the superior court lacked jurisdiction to disqualify him after 

it had sustained the demurrer and dismissed the case. (Id. at p. 

9.) As in Schimmel, the appellate court emphasized the superior 

court’s inherent power to control the proceedings before it. (Ibid.)

In Jarvis, brothers Todd and James each controlled a 50 

percent interest of a limited partnership that owned a parcel of 

land. (Jarvis, supra, 33 Cal.App.5th at p. 120.) James filed an 

action for partition of the land by sale, naming Todd and the 

partnership as defendants. Todd and the partnership each filed 

demurrers to the complaint. While the demurrers were pending, 

James moved to disqualify Roscoe, the counsel representing the 

partnership. (Id. at pp. 120-121.) The superior court heard the 
43

demurrers and the motion to disqualify at the same time. (Id. at 

p. 127.) It granted the motion to disqualify Roscoe and dismissed 

the demurrer he had filed on behalf of the partnership without 

prejudice. (Ibid.) The appellate court affirmed; like the courts in 

Schimmel and Cal Pak, it emphasized the superior court’s 

inherent power to control the proceedings before it before 

reaching the merits of the motion. (See id. at pp. 128, 133-140.) 

New England argues that these cases collectively 

demonstrate “(1) a trial court should decide a motion to disqualify 

counsel before deciding other issues, (2) if the trial court 

disqualifies an attorney, the motions filed by that attorney should 

be stricken, and (3) the trial court does not lose jurisdiction over a 

motion to disqualify counsel even when it first decides a 

dispositive motion and dismisses a case. Thus, the trial court 

here should have ruled on [New England’s] motion to disqualify 

Larson and, after determining that Larson had already been 

disqualified, should have stricken the Cooner [Sales] demurrer 

papers filed by his firm.” 

As New England acknowledged below, no California 

authority, including those cited here, holds that courts must

address motions to disqualify before addressing other motions. 

Schimmel, Cal Pak, and Jarvis all highlighted superior courts’ 

inherent powers to manage the proceedings before them. The 

court here invoked the same powers, and considered “the specific 

facts of this case,” including “gamesmanship” by New England, 

when deciding to resolve the demurrers prior to the motion to 

disqualify. New England has not demonstrated that this 

considered exercise of discretion was beyond the bounds of 

reason. We accordingly affirm the court’s denial of the motion as 

moot. 
44

DISPOSITION 

The judgment is affirmed. Respondents may recover their 

costs of appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

CURREY, ACTING, P.J.

DAUM, J.

 Judge of the Los Angeles County Superior Court, assigned 

by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.