Filed 12/14/21 Odyssey Engineering v. Longo CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ODYSSEY ENGINEERING Inc., et. al.,

 Plaintiffs and Appellants,

v.

VINCENT LONGO et. al.,

 Defendants and Respondents.

 G059242

 (Super. Ct. No. 30-2018-01038748)

 O P I N I O N

Appeal from an order of the Superior Court of Orange County, Craig 

Griffin, Judge. Affirmed. Motion to supplement record denied.

Dracup & Patterson, Jeffrey A. Dracup and Terry Bell for Plaintiffs and 

Appellants.

Ropers Majeski, Andrew S. Hollins, Ethan A. Reimers; Messner Reeves 

and Andrew S. Hollins for Defendants and Respondents Vincent Longo, Wesrae 

Holdings, Inc., and Alex Marinescu.
2

Loeb & Loeb, W. Allan Edmiston and Saul D. Brenner for Respondents 

Stradling Yocca Carlson & Rauth and Mark Skaist.

* * *

Anthony Longo, Teresa Longo, and their company Odyssey Engineering 

Inc, (collectively Odyssey) appeal from an order denying their petition to vacate an 

arbitrator’s dismissal of their case against the law firm of Stradling Yocca Carlson & 

Rauth, P.C. and one of its attorneys, Mark Skaist (collectively Stradling).

Odyssey argues the dismissal order should be vacated for two reasons. 

First, because the decision to dismiss the case against Stradling, rather than issue a stay 

that would preserve Odyssey’s right to develop additional evidence, amounted to an 

improper refusal to hear evidence material to the controversy as set forth in Code of Civil 

Procedure section 1286.2, subdivision (a)(5).1 And second, because the arbitrator, retired 

Superior Court Judge Gail Andler, failed to disclose that her “economic interest” in the 

ADR provider, JAMS, was an ownership interest—which in the circumstances of this 

case amounted to a ground for disqualification as set forth in section 1284.6, 

subdivision (a)(6). 

Odyssey has also moved to supplement the record by asking to unredact a 

document it agreed to submit to the trial court in redacted form. Odyssey filed its motion 

to supplement after the respondents filed their briefs arguing that the lack of evidence 

establishing the extent to which any respondent or its counsel has done business with 

JAMS undermines Odyssey’s position on the disqualification issue. 

We deny Odyssey’s motion to supplement the record. Our review is of the 

trial court’s decision, and except in extraordinary circumstances, appellate rules require 

that our decision be based on the same evidence considered by the trial court. 

1 All further statutory references are to this code.
3

“‘It is an elementary rule of appellate procedure that, when reviewing the correctness of 

a trial court’s judgment, an appellate court will consider only matters which were part of 

the record at the time the judgment was entered. [Citation.] This rule preserves an orderly 

system of [litigation] by preventing litigants from circumventing the normal sequence of 

litigation.’” (Haworth v. Superior Court (2010) 50 Cal.4th 372, 379, fn. 2 (Haworth); 

People v. Brooks (1980) 26 Cal.3d 471, 484 [“Augmentation is not available . . . for the 

purpose of adding material that was not a proper part of the record in the trial court”].) A

request to augment after the opposing parties have filed their briefs is also untimely. 

(People v. Preslie (1977) 70 Cal.App.3d 486, 492 [requests for augmentation of the 

record “made after a reasonable time has expired from receiving the record on appeal, 

and particularly as late as those contained in briefs, will be denied absent a strong 

showing of unusual or unavoidable circumstances giving rise to the delay”].)

Here, Odyssey does not contend the omitted evidence was unavailable to it 

during the trial court proceedings, only that it apparently considered the evidence 

unnecessary until it reviewed the respondents’ briefs on appeal. Those are not the 

extraordinary circumstances that will justify augmentation of the record. 

We reject Odyssey’s substantive arguments as well. The arbitrator 

considered Odyssey’s evidence and arguments in opposition to Stradling’s motion to 

dismiss before ruling on its merits. The fact that her ruling may have been legally 

incorrect is not a basis to vacate the ruling under section 1286.2, subdivision (a)(5), even 

if its effect was to limit the issues or evidence in the arbitration. 

And the fact that an arbitrator’s disclosed financial interest in JAMS was 

based on an ownership stake, rather than a profit sharing or other interest in the company,

is not a ground for disqualification under section 1286.2, subdivision (a)(6). Even if it 

were, Odyssey was free to seek additional information about the nature of the arbitrator’s

economic interest at the time it was disclosed; its failure to do so forfeited the issue. 

The order is affirmed.
4

FACTS

Odyssey became embroiled in a dispute with Anthony Longo’s brother,

Vincent Longo, and his company, Wesrae Holdings, Inc. (collectively Wesrae), over 

allegations that Wesrae had embezzled funds from a third company, Futures Fins, LLC 

(Futures), which is jointly owned by Odyssey and Wesrae. Odyssey also claimed that 

Stradling, in its capacity as Futures’s legal counsel, aided and abetted Wesrae’s

embezzlement. 

Odyssey initiated a private arbitration of the dispute against both Wesrae 

and Stradling through ADR provider JAMS.2In April 2019, the JAMS arbitrator 

selected by the parties provided them with her initial disclosures, including that, within 

the preceding five years, she had served as a neutral arbitrator in other matters involving 

a party, a lawyer for a party, or law firm for a party to the current arbitration. At the 

same time, JAMS provided the parties with reports listing the arbitration matters handled

by the arbitrator within the last five years (and mediation matters handled within the past 

two years) that included any party or any lawyer or law firm representing a party to the 

present arbitration.

JAMS’s April disclosures also informed the parties that the arbitrator 

“practices in association with JAMS. Each JAMS neutral, including the neutral in this 

case, has an economic interest in the overall financial success of JAMS. In addition, 

because of the nature and size of JAMS, the parties should assume that one or more of the 

other neutrals who practice with JAMS has participated in an arbitration, mediation or 

other dispute resolution proceeding with the parties, counsel or insurers in this case and 

may do so in the future.” In connection with those disclosures, the parties were invited to 

make further inquiries related to them.

2 Odyssey also asserted a claim against Alex Marinescu, who is alleged to 

have aided and abetted Wesrae’s misconduct. 
5

In July 2019, Stradling moved to dismiss the claim against it, relying on 

McDermott, Will & Emery v. Superior Court (2000) 83 Cal.App.4th 378 for the 

proposition that dismissal is proper in cases where a law firm is unable to meaningfully 

defend itself due to the strictures of the attorney client privilege. In its opposition, 

Odyssey relied on Favila v. Katten Muchin Rosenman LLP (2010) 188 Cal.App.4th 189 

(Favila), to argue the court should stay the action rather than dismiss it because there was 

a realistic possibility that further litigation would result in either a waiver of the privilege 

or the discovery of evidence supporting an exception to it. In a decision that explained at 

some length why she concluded Favila was inapposite, the arbitrator granted Stradling’s

motion to dismiss.

Approximately two months after the arbitrator’s ruling, the Ninth Circuit 

Court of Appeals issued a decision, Monster Energy Co. v. City Beverages, LLC, 

940 F.3d 1130 (9th Cir. 2019) (“Monster Energy”), which vacated an arbitration decision 

on the basis that a JAMS arbitrator had failed to disclose (1) that he had an ownership 

interest in JAMS, and (2) that one of the parties to the case had a substantial, ongoing 

business relationship with JAMS. 

Apparently in response to the Monster Energy decision, the arbitrator in 

this case issued an additional disclosure in November 2019 stating she had “an equal 

share ownership interest” in JAMS, that she had “never received a profit distribution of 

more than .1% of JAMS total revenue in a given year,” and that she was “not privy to 

information regarding the number of cases or revenue related to cases assigned to other 

panelists.”

Also, in November 2019, JAMS sent the parties supplemental information 

regarding JAMS and its cases. The report identified the number of cases that JAMS—

broadly defined to include all JAMS neutrals in all the company’s offices—had 

administered during the preceding five years that had involved a “party, lawyer, or law

firm in the present case.” The numbers revealed in the report were redacted in the trial 
6

court filing and are not included in the record before us. This is the information 

appellants now ask us to consider.

The materials provided to the parties in November 2019 also noted that 

“JAMS administers approximately 13,000 cases per year,” and further stated “JAMS has 

approximately 400 neutrals on its panel, and a little over one quarter of JAMS neutrals 

have an equal ownership share in the company. Owners are not privy to information

regarding the number of cases or revenue related to cases assigned to other panelists. No 

shareholder’s distribution has ever exceeded 0.1% of JAMS total revenue in a given year. 

Shareholders are not informed about how their profit distributions are impacted by any 

particular client, lawyer or law firm and shareholders do not receive credit for the

creation or retention of client relationships.” The report also informed the parties that

“[t]his report is not provided to JAMS neutrals and will not be provided to the neutral in 

this matter.”

Based upon the arbitrator’s additional disclosure, Odyssey submitted a 

request to JAMS to disqualify Judge Andler as the case neutral and “restart the arbitration 

with a neutral arbitrator who holds no JAMS ownership.” It then filed a challenge for 

cause. JAMS denied both the request and the challenge. Odyssey also submitted a 

request directly to Judge Andler that she disqualify herself. She declined.

In December 2019, Odyssey filed a petition to vacate the arbitration 

decision dismissing Stradling, pursuant to section 1284.2. As grounds for the petition, 

Odyssey claimed (1) the arbitrator engaged in misconduct that substantially prejudiced its 

rights; (2) the arbitrator unfairly refused to postpone the hearing or hear evidence to settle 

the dispute; and (3) the arbitrator failed to disclose within the time for disclosure a 

ground for disqualification of which the arbitrator was then aware. 

In support of the disqualification argument, Odyssey’s counsel declared 

that “[f]ollowing the November 1, 2019 disclosure of Judge Andler’s ownership in 

JAMS, Claimants, by their legal counsel, timely filed a challenge to the continued service 
7

of arbitrator Andler in this matter . . . . [¶] Had this critical disclosure been made at the 

initial disclosure, I would have demanded JAMS provide the case load given to JAMS by 

Stradling. Seeing the case load Stradling provides to JAMS, (as JAMS disclosed on 

November 12, 2019), I would have moved to disqualify Judge Andler not only on the 

automatic disqualification permitted by Code Civ. Proc. § 1281.91 but based on the large 

firm bias her ownership in JAMS brings to this arbitration.”

Odyssey then filed a motion to disqualify Judge Andler from further 

participation in the case concurrently with its petition to vacate the contractual arbitration 

award. 

Stradling and Wesrae opposed the petition and motion, arguing the 

arbitrator had sufficiently disclosed her financial interest in the economic success of 

JAMS and that Odyssey waived any objection by failing to make a timely inquiry about 

the issue. They also claimed Odyssey was belatedly raising the issue solely because it 

disagreed with her ruling.

The trial court denied the petition and denied the motion to disqualify the 

arbitrator.

DISCUSSION

1. Governing Principles

Odyssey seeks to vacate a binding arbitration award. Section 1286.2 allows 

the courts to vacate such awards only in very limited circumstances because “it is the 

general rule that parties to a private arbitration impliedly agree that the arbitrator’s 

decision will be both binding and final.” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 

1, 9.) 

As explained by our Supreme Court, “Most legal errors in arbitration are 

not reviewable. [Citations.] An award may be vacated only for fraud, corruption, 

misconduct, an undisclosed conflict, or similar “circumstances involving serious 
8

problems with the award itself, or with the fairness of the arbitration process.” [Citation.] 

Otherwise, judicial corrections are limited to remedying ‘obvious and easily correctable 

mistake[s]’ ‘technical problem[s],’ and actions in excess of authority so long as the 

correction leaves the merits of the decision unaffected. [Citation.] ‘[B]y voluntarily 

submitting to arbitration, the parties have agreed to bear the risk [of uncorrectable legal 

or factual error] in return for a quick, inexpensive, and conclusive resolution to their 

dispute.’” (Heimlich v. Shivji (2019) 7 Cal.5th 350, 367, fn. omitted (Heimlich).)

2. Arbitrator’s Failure to Allow Odyssey to Present Its Case Against Stradling

One of the limited grounds for vacating an arbitration award is that the 

arbitrator prevented a party from fairly presenting its case. (§ 1286.2, subd. (a)(5)

(subdivision (a)(5)) [“[t]he rights of the party were substantially prejudiced by . . . the 

refusal of the arbitrators to hear evidence material to the controversy”].)

Odyssey argues the arbitrator in this case improperly refused to hear 

material evidence because she erroneously granted a request for dismissal by Stradling,

rather than conditionally staying the proceeding against it pursuant to Favila, as 

advocated by Odyssey. Odyssey argues that ruling is reviewable under subdivision (a)(5) 

because its effect was to unfairly deny Odyssey the opportunity to present material

evidence it hoped to later develop in support of maintaining its claim for damages against 

Stradling. 

We disagree. As explained by our Supreme Court in Heimlich, 

subdivision (a)(5) cannot be spun into a justification for reviewing the merits of an 

arbitrator’s ruling, even in cases where the ruling had the effect of eliminating a party’s 

claim. In Heimlich, the arbitrator concluded—incorrectly as it turns out—that he lacked 

jurisdiction to award costs. Although the appellant argued the award could be vacated 

under subdivision (a)(5) because the erroneous ruling amounted to an unfair refusal to

consider his evidence of costs, the Supreme Court concluded “[t]his analysis fails.” 

(Heimlich, supra, 7 Cal.5th at p. 368.)
9

As the Supreme Court pointed out, “[t]he provision is not ‘a back door to 

Moncharsh through which parties may routinely test the validity of legal theories of 

arbitrators.’ [Citation.] 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 present evidence on a disputed material 

issue. . . . [Citation.] . . . To conduct an arbitration without abiding by that principle 

evinces bias, constituting misconduct. [¶] . . . [¶] In contrast, section 1286.2, 

subdivision (a)(5) does not contemplate vacation of an award merely because arbitrators 

refuse to consider evidence they find legally irrelevant, even if the irrelevance 

determination rests upon an incorrect legal foundation.” (Heimlich, supra, 7 Cal.5th at 

pp. 368-369, italics added.)

The Supreme Court then reached this conclusion: “There is a difference 

between a legal conclusion that jurisdiction is lacking and an arbitrary refusal to hear 

relevant evidence on an issue properly before the arbitrator. [The appellant’s] complaint 

is with the underlying jurisdictional determination. Neither that determination nor the 

resulting refusal to consider evidence erroneously deemed irrelevant is misconduct under 

the evidentiary prong of section 1286.2, subdivision (a)(5).” (Heimlich, supra, 7 Cal.5th 

at p. 369.)

On a more practical level, the Supreme Court observed that “[t]o 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.” (Heimlich, supra, 7 Cal.5th. at p. 370.)

This case cannot be materially distinguished from Heimlich. The arbitrator 

here considered Odyssey’s opposition to Stradling’s motion, and she explained in some 
10

detail why she disagreed with Odyssey’s assertion that Favila justified a stay, rather than 

an outright dismissal, of its claim against Stradling. 

Odyssey’s complaint is that the arbitrator “failed to apply Favila properly,”

not that the arbitrator reached her decision in a procedurally unfair manner. It may be 

true that the arbitrator erred in her analysis of Favila, but for purposes of our review, it 

does not matter. Pursuant to Heimlich, Odyssey’s complaint does not warrant vacation of 

the award under subdivision (a)(5).

3. Arbitrator’s Failure to Disclose Ownership Interest in JAMS 

Odyssey also argues the arbitrator’s decision must be vacated under 

subdivision (a)(6) of section 1286.2 (subdivision (a)(6)) because the arbitrator failed to 

disclose that she had an ownership interest in JAMS. Relying on the Ninth Circuit 

decision in Monster Energy, Odyssey contends the arbitrator’s ownership interest in the 

company would cause “a person aware of the facts to reasonably entertain a doubt that 

the proposed neutral arbitrator would be able to be impartial.” (Quoting section 1281.9, 

subd. (a).) 

In Monster Energy, the majority considered whether an arbitration award 

should be vacated because the arbitrator’s disclosure of “‘an economic interest in the 

overall financial success of JAMS’”—the same disclosure made in this case—was an 

insufficient disclosure of the arbitrator’s ownership interest in the provider. (Monster

Energy, supra, 940 F.3d. at pp. 1133-1134, 1136.) However, the Monster Energy

majority analyzed that issue under the Federal Arbitration Act (FAA), rather than under 

section 1286.2.

3

 The majority concluded that an arbitrator’s ownership interest must be 

3 The Monster Energy majority does acknowledge California’s requirement 

that arbitrators disclose “‘any known facts that a reasonable person would consider likely 

to affect the impartiality of the arbitrator’” (Monster Energy, supra, 940 F.3d at p. 1137),

as an “example” of the disclosure rules enacted by “states within our circuit” (id. at 

p. 1136), but the case does not apply that standard.
11

disclosed in any case where a party has “nontrivial business dealings” with the provider.

(Id. at p. 1136.)

The majority made clear that its conclusion was based in part on the need to 

ensure transparency in cases involving inexperienced litigants. Although it 

acknowledged that the participants in the arbitration before it were “sophisticated 

companies,” the Monster Energy majority noted that arbitrations often involve “every 

day” disputes “including in employment-related disputes, consumer transactions, housing 

issues, and beyond [which] means that arbitration will often take place between unequal 

parties.” (Monster Energy, supra, 940 F.3d. at p. 1137.) As a result, the majority 

reasoned the better rule would be to require more explicit disclosure when an arbitrator 

holds an ownership interest in the ADR provider. 

However, as pointed out by another panel of this court in Speier v. The 

Advantage Fund, LLC (2021) 63 Cal.App.5th 134 (Speier), the disclosure rules are more 

explicit and detailed under California law, and they distinguish between different types of 

cases. Thus, “in a consumer arbitration, the arbitrator must disclose ‘[a]ny significant 

past, 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.’ In consumer arbitrations, standard 8(c) [of the California Rules of 

Court Ethics Standards for Neutral Arbitrators in Contractual Arbitration] further requires 

the arbitrator also to provide information regarding ‘[a]ny financial relationship or 

affiliation the arbitrator has with the provider organization other than receiving referrals 

of cases, including whether the arbitrator has a financial interest in the provider 

organization or is an employee of the provider organization.’” (Speier, supra, at p. 149, 

fn. omitted.)

Speier also notes the same rule states “‘[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 
12

party’s representation that the arbitration is not a consumer arbitration.’” (Speier, supra, 

63 Cal.App.5th at p. 149.)

Given California’s more nuanced disclosure rules, we are not persuaded 

that Monster Energy’s one-size-fits-all disclosure standard applies here. Instead, we 

concur with the analysis in Speier, which addressed the same disqualification argument 

made here by Odyssey, in essentially the same factual circumstances. After pointing out 

that under California law, an arbitrator in a commercial dispute is not required to disclose 

an ownership interest in the ADR provider, Speier considered whether such a disclosure 

was “nevertheless required because, under the specific facts and circumstances of this 

case, the information could reasonably raise a doubt in a person aware of the facts about 

the arbitrator’s impartiality.” (Speier, supra, 63 Cal.App.5th at p. 150; see § 170.1, subd. 

(a)(6)(A)(iii).)

Speier observed that “‘“The ‘reasonable person’ is not someone who is 

‘hypersensitive or unduly suspicious,’ but rather is a ‘well-informed, thoughtful 

observer’”’” and that “‘[t]he partisan litigant emotionally involved in the controversy 

underlying the lawsuit is not the disinterested objective observer whose doubts 

concerning the judge’s impartiality provide the governing standard.’” (Speier, supra, 

63 Cal.App.5th at p. 147.) The Speier panel then concluded that, because the parties’ 

attorneys were from law firms that had identical numbers of cases before JAMS in the 

five-year period preceding the arbitration, the arbitrator’s ownership interest in JAMS did 

not reasonably raise a doubt about the arbitrator’s impartiality. (Id. at p. 150.)

This case is distinguishable from Speier in that we do not know the number 

of matters each side (including their respective counsel) has had before JAMS in the five 

years preceding the arbitration. But neither did the arbitrator. JAMS’s disclosure made 

clear the total number of cases a particular party, attorney, or law firm brings to JAMS is 

not shared with its neutrals. Because the arbitrator had no knowledge of those case 
13

numbers, we cannot see how they would be pertinent in assessing her impartiality in a 

particular case.

4

Rather than arguing specific numbers, Odyssey relies on the assertion that 

Stradling itself is a large law firm, and both Stradling and Wesrae were represented by 

other large law firms, while Odyssey is represented by a small law firm.5 According to 

Odyssey, these ‘“BigLaw”’ firms would naturally be viewed as “‘“a source or potential 

source of . . . additional income, for the arbitrator”’” based upon her ownership interest in 

JAMS, and thus a reasonable person would consider that ownership interest to be a 

reason to doubt her impartiality.

What Odyssey’s argument ignores is the fact that prior to this arbitration,

JAMS had disclosed to the parties that “[e]ach JAMS neutral, including the neutral in 

this case, has an economic interest in the overall financial success of JAMS” (original 

italics). The disclosure did not use the word “ownership,” but it conveyed that the 

individual neutrals would somehow share in JAMS’s “financial success”; it thus 

suggested that if JAMS did well financially so too would they. Given that disclosure, we 

see little difference between an “economic interest” and an “ownership interest,” as either 

might raise some concern about an arbitrator’s impartiality.

The dissenting judge in Monster Energy made a similar point: “The 

majority reasons . . . that the Arbitrator’s interest as a JAMS owner should have been 

4 Monster Energy is distinguishable on this point. In that case, Monster (a 

large soft drink company) had inserted a provision in its form franchise agreements that 

required any disputes to be arbitrated by JAMS in its Orange County, California, 

location. (Monster Energy, supra, 940 F.3d at p. 1136.) That arbitration provision would 

suggest to any individual arbitrator handling one of the Monster cases that Monster was 

responsible for providing a steady stream of business to JAMS’s Orange County office.

5 Wesrae argues that Odyssey’s characterization of the size of these law firms

is not supported by evidence in the record. The point is well-taken, but we will assume, 

for purposes of evaluating the argument, that they are among the many large law firms 

that utilize the services of ADR providers, including JAMS.
14

specifically disclosed because it ‘greatly exceeds the general economic interest that all 

JAMS neutrals naturally have in the organization.’ [Citation.] I do not see how this 

information would have made a material difference in Olympic Eagle’s evaluation of the 

Arbitrator. Owners of JAMS have an interest in maximizing JAMS’s amount of 

business, because they share in JAMS’s profits. Likewise, non-owner arbitrators have an 

interest in advancing their professional careers and maintaining their status with JAMS, 

which creates similar incentives to decide cases in a way that is acceptable to repeat 

player customers—otherwise, JAMS might terminate the non-owner’s JAMS affiliation. 

[¶] . . . Because both types of arbitrators would have at least some incentive to keep 

repeat customers of JAMS such as Monster happy, it is unclear why knowing the details 

of the financial relationship between any specific potential arbitrator and JAMS would 

make a material difference . . . . That an arbitrator has an ownership interest in the 

arbitration firm, not just a financial interest in that firm more generally, is hardly the sort 

of ‘real’ and ‘not trivial’ undisclosed conflict that our court has held requires vacatur.” 

(Monster Energy, supra, 940 F.3d at pp. 1140-1141 (dis. opn. of Friedland, J.).)6

6 The Monster Energy majority notes that while JAMS’ initial disclosure 

revealed that all JAMS neutrals have an “economic interest” in the company’s financial 

success, only about one-third of those neutrals actually have an ownership interest in the 

company. (Monster Energy, supra, 940 F.3d. at p. 1136, fn. 2.) Based on that difference, 

the majority seems to assume, without explanation, that the initial “economic interest” 

disclosure made by JAMS refers only to “the general economic interest that all JAMS 

neutrals naturally have in the organization,” while the undisclosed ownership interest of 

some neutrals “greatly exceeds” that general interest. (Ibid.) We find this reasoning 

difficult to follow. There are various ways in which a neutral could directly share in 

JAMS’s financial success—e.g., a profit-sharing agreement—that are distinct from an 

ownership interest. And a significant profit-sharing agreement could be even more 

lucrative than a small ownership interest. We assume JAMS’s initial disclosure was

intended to put the parties on notice that a potential arbitrator had some sort of financial 

stake in the success of the company; the disclosure then left it to the parties to decide 

whether further inquiry on the subject was required. 
15

We believe the initial JAMS disclosure, which informed the parties that 

each of its neutrals has an “economic interest” in the financial success of the entity 

overall, was sufficient to trigger an obligation in any party to seek clarification if the 

issue raised a concern. (See Dornbirer v. Kaiser Foundation Health Plan, Inc. (2008) 

166 Cal.App.4th 831, 841 (Dornbirer) [“although Adelman’s disclosure letter may be 

ambiguous with regard to the precise number of cases he had previously arbitrated in 

which Kaiser was a party, the disclosure was sufficient to put Dornbirer on notice that 

Adelman had served as an arbitrator in a large number of such cases. If Dornbirer was 

concerned about the number of times Adelman had served as an arbitrator for Kaiser, she 

had the opportunity to ask for clarification”].)

A party cannot ignore an issue that is disclosed by the arbitrator before the 

arbitration, and later seek to overturn the result based on that same issue. As stated in 

Dornbirer, a party’s remedy when an arbitrator has failed to make required disclosures 

under section 1281.9, or has made incomplete disclosures, is to seek disqualification 

under section 1281.91, subdivision (a), before the arbitration takes place.7 (Dornbirer, 

supra, 166 Cal.App.4th at p. 846.) A party’s failure to do so results in a forfeiture of the 

right to disqualify the arbitrator.8 (§ 1281.91, subd. (c).)

Odyssey argues that it did in fact challenge Judge Andler as soon as it could 

after JAMS provided its “ownership interest” disclosure in November 2019, and that this 

7 Section 1281.91, subdivision (a), states: “A proposed neutral arbitrator 

shall be disqualified if he or she fails to comply with Section 1281.9 and any party 

entitled to receive the disclosure serves a notice of disqualification within 15 calendar 

days after the proposed nominee or appointee fails to comply with Section 1281.9.”

8 Section 1281.91, subdivision (c), states in pertinent part: “The right of a 

party to disqualify a proposed neutral arbitrator pursuant to this section shall be waived if 

the party fails to serve the notice pursuant to the times set forth in this section, unless the 

proposed nominee or appointee makes a material omission or material misrepresentation 

in his or her disclosure.”
16

challenge satisfied the requirements of section 1281.91. We are not persuaded. Odyssey 

was on notice well before the arbitration commenced of Judge Andler’s “financial 

interest” in JAMS. As discussed in Dornbirer, once Odyssey became aware of the 

arbitrator’s economic interest in JAMS, it had an obligation to either make further inquiry 

about the subject or proceed with the arbitration and accept its outcome.

DISPOSITION

The order is affirmed. Stradling is entitled to its costs on appeal.

GOETHALS, J.

WE CONCUR:

O’LEARY, P. J.

MARKS, J.*

*Judge of the Orange County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.