Filed 3/30/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

SITRICK GROUP, LLC,

Plaintiff and Respondent,

v.

VIVERA 

PHARMACEUTICALS, INC.,

Defendant and Appellant.

 B317546

 (Los Angeles County Super.

 Ct. No. 21STCP02156)

APPEAL from the judgment of the Superior Court of Los 

Angeles County, Barbara M. Scheper, Judge. Affirmed.

De Novo Law Firm, Benjamin Yrungaray for Defendant 

and Appellant.

Nemecek & Cole, Frank W. Nemecek and Claudia L. Stone

for Plaintiff and Respondent.
2

* * * * * *

The California Arbitration Act (the Act) (Code Civ Proc., § 

1280 et seq.)1 requires potential and retained arbitrators to 

disclose, among other things, matters that the Ethics Standards 

for Neutral Arbitrators in Contractual Arbitration (Ethics 

Standards) dictate must be disclosed. (§ 1281.9, subd. (a)(2).) Do 

the Ethics Standards require a retained arbitrator in a 

noncommercial case to disclose in one matter that he has been 

subsequently hired in a second matter by the same party and 

same law firm? We hold that the answer is “no,” at least where 

the arbitrator has previously informed the parties—without any 

objection thereto—that no disclosure will be forthcoming in this 

scenario. Because the arbitrator’s disclosures were proper here, 

the trial court properly overruled an objection based on 

inadequate disclosure. We accordingly affirm.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. Breach of contract

Sitrick Group, LLC (Sitrick) is a “corporate communication 

advisor and crisis manager.” In mid-2019, Vivera 

Pharmaceuticals, Inc. (Vivera) was developing a medical test kit, 

but had received “negative publicity” from its litigation with a 

rival company. Vivera hired Sitrick to manage a public relations 

campaign aimed at curbing the negative press.

On July 10, 2019, Vivera signed a written contract 

retaining Sitrick and agreeing to pay an hourly rate for its 

services. The contract contained an agreement to arbitrate “any 

dispute or claim arising out of or relating to” the contract.

1 All further statutory references are to the Code of Civil 

Procedure unless otherwise indicated.
3

Between July 2019 and May 2020, Sitrick provided 

$292,773.32 in services to Vivera. Vivera did not make any 

payments.

B. Arbitration

1. Initiation of arbitration, selection of arbitrator, 

and disclosures

On June 26, 2020, and again on July 16, 2020, Sitrick filed 

demands for arbitration with Judicial Arbitration and Mediation 

Services (JAMS).

On August 20, 2020, the parties selected retired Judge 

Coleman A. Swart (Judge Swart) to arbitrate their dispute. 

Five days later, on August 25, 2020, Judge Swart issued to 

the parties a written “Disclosure Checklist for All Arbitrations.” 

As pertinent here, the checklist indicated that:

● Judge Swart “will . . . entertain offers of employment 

or new professional relationships . . . from a party [or] lawyer in 

the arbitration . . . while [the] arbitration is pending, including 

offers to serve as a dispute resolution neutral in another case,” 

and relatedly advised that “[i]f this is a nonconsumer arbitration, 

the arbitrator will not inform the parties if he or she 

subsequently receives an offer or new matter while the 

arbitration is pending.”

● “Based on the parties’ written submissions,” the 

arbitration in this case “is NOT a Consumer Arbitration.”

● The above-two disclosures “constitute[] a waiver of 

any further requirement to disclose subsequent employment 

involving the same parties or lawyers or law firms.”

Vivera did not object to Judge Swart serving as the 

arbitrator within 15 days of receiving the checklist.
4

On February 24, 2021, JAMS set the arbitration for a 

three-day hearing starting on May 26, 2021.

2. Judge Swart’s new retention and voluntary 

disclosure

On April 13, 2021, Judge Swart was selected to serve as an 

arbitrator in a separate matter between Sitrick and Legacy 

Development (the Legacy matter). In that matter, Sitrick was 

employing the same law firm (but a different lawyer) as was 

representing it in the arbitration with Vivera.

On May 14, 2021, JAMS disclosed Judge Swart’s retention 

in the Legacy matter to Vivera.

3. Vivera’s motion to disqualify Judge Swart

On May 19, 2021, Vivera moved to disqualify Judge Swart 

based on Sitrick and the same law firm being involved in the 

Legacy matter as well as Judge Swart’s “inadequate” disclosure of 

his retention in the Legacy matter.

On May 24, 2021, JAMS’s National Arbitration Committee 

denied Vivera’s motion. Specifically, the Committee explained 

that the disclosure of the Legacy matter was “a courtesy[ and] not 

a required disclosure” because, in the disclosure checklist, Judge 

Swart had indicated he could entertain new offers while this 

nonconsumer arbitration was pending without having to disclose 

them and because Vivera had not objected to that term within 

the 15-day window for doing so. Further, the Committee found 

that the overlap of party and law firm between the two 

arbitrations did not suggest that Judge Swart was “bias[ed]” or 

unable to be fair or impartial. The Committee did not inform 

Judge Swart of Vivera’s motion or its ruling on that motion.
5

4. Arbitration hearing and award

Judge Swart held the hearing in this arbitration from May 

26 to May 28, 2021. Vivera elected not to participate. In his 

interim and final awards, Judge Swart concluded that Vivera had 

breached its contract with Sitrick, and that it owed a total of 

$556,639.98 comprised of unpaid services, interest through the 

date of the award, attorney’s fees, and costs. 

The final award was served on the parties on June 23, 

2021.

II. Procedural Background

On July 6, 2021, and again on August 10, 2021, Sitrick filed 

petitions to confirm the arbitration award.

On July 26, 2021, and again on September 8, 2021, Vivera 

filed what it captioned as “oppositions” to Sitrick’s petitions, but 

which asked the trial court to vacate the arbitrator’s award due 

to Judge Swart’s inadequate disclosure of the Legacy matter.

The trial court issued an order confirming the arbitrator’s 

award.

Vivera filed this timely appeal.

DISCUSSION

Vivera argues that the trial court erred in confirming the 

arbitration award because Judge Swart did not comply with the 

Act’s disclosure requirements. Where, as here, resolution of an

argument turns on statutory interpretation and the application of 

undisputed facts to those statutes, our review is de novo. 

(Haworth v. Superior Court (2010) 50 Cal.4th 372, 383 (Haworth); 

Luce, Forward, Hamilton & Scripps, LLP v. Koch (2008) 162 

Cal.App.4th 720, 729-730 (Luce); Martinez v. Brownco 

Construction Co. (2013) 56 Cal.4th 1014, 1018.)
6

The Act is meant to be a “comprehensive statutory scheme 

regulating private arbitration” in our State. (Moncharsh v. Heily 

& Blase (1992) 3 Cal.4th 1, 9.) To ensure that an arbitrator is 

truly neutral and able to “serve[] as an impartial decision 

maker,” the Act “requires [a potential] arbitrator to disclosure to 

the parties any grounds for disqualification.” (Haworth, supra, 

50 Cal.4th at p. 381; Azteca Construction, Inc. v. ADR Consulting, 

Inc. (2004) 121 Cal.App.4th 1156, 1165 [requiring disclosures as a 

means of “protecting the fairness of the [arbitration] process” 

given the “mighty and largely unchecked power” “arbitrators 

wield”]; § 1281.9, subd. (a).) The Act enforces this duty of 

disclosure by empowering a party to vacate an arbitration award 

if an arbitrator fails to make the disclosures required by the Act 

or fails to disqualify himself when a party objects on the basis of 

those disclosures. (§ 1286.2, subd. (a)(6).)

As pertinent here, the Act requires a potential arbitrator to 

“disclose” “[a]ny matters required to be disclosed” by the Ethics 

Standards.2 (§ 1281.9, subd. (a)(2); Ethics Standards, archived at 

<https://perma.cc/PSF3-XA23> (as of Mar. 21, 2023).) As a 

general matter, 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; see also, 

Gray v. Chiu (2013) 212 Cal.App.4th 1355, 1362-1363.) More 

specifically, the Ethics Standards pertinent to the issues in this 

2 By not raising it on appeal, Vivera has abandoned its 

argument that Judge Swart’s retention in the Legacy matter 

disqualified him from serving as an arbitrator under the 

standards set forth in Code of Civil Procedure section 170.1. 
7

case require a potential arbitrator to disclose any relationship he 

or she has with any party or party’s lawyer at the time of the 

disclosure or at any time in the past. (Ethics Standards, std.

7(d); Honeycutt v. JPMorgan Chase Bank, N.A. (2018) 25 

Cal.App.5th 909, 922-923 (Honeycutt); Roussos v. Roussos (2021) 

60 Cal.App.5th 962, 972.) What is more, the Ethics Standards 

make this duty of disclosure “a continuing duty” that applies 

“until the conclusion of the arbitration proceeding.” (Ethics 

Standards, std. 7(f); Luce, supra, 162 Cal.App.4th at p. 729.) As 

part of that continuing duty to disclose, an arbitrator must 

always disclose, at the time of appointment, if he or she “will 

entertain offers of employment or new professional relationships” 

with a party or a lawyer for a party “as a dispute resolution 

neutral” during the pendency of the arbitration. (Ethics 

Standards, std. 12(b)(1); Honeycutt, at p. 923.) If the parties do 

not timely object to the arbitrator’s indicated willingness to 

entertain new offers of employment, the scope of the arbitrator’s 

duty to make further disclosures depends on whether the current 

arbitration is a “consumer” arbitration or a “nonconsumer” 

arbitration. If the current arbitration is a “consumer” 

arbitration, the arbitrator has a continuing duty to disclose to the 

parties “if he or she subsequently receives an offer” and if he or 

she has accepted any such offer. (Ethics Standards, stds.

12(b)(2)(A), 7(b)(2)(B).) But if the current arbitration is a 

“nonconsumer” arbitration, the arbitrator is “not required” to 

disclose any future offers of employment as long as the arbitrator 

tells the parties, up front, that he or she “will not inform the 

parties if he or she subsequently receives an offer while th[e] 

arbitration is pending.” (Ethics Standards, stds. 12(b)(2)(B),
8

12(d)(4)(A), 7(b)(2)(A); Ovitz v. Schulman (2005) 133 Cal.App.4th 

830, 840-841 [so noting].)

Judge Swart’s disclosures complied with the Ethics 

Standards and consequently complied with the Act. Contrary to 

what Vivera contends, the arbitration in this case is a 

“nonconsumer” arbitration. Judge Swart’s disclosure checklist so 

indicated. What is more, the Ethics Standards define a 

“consumer arbitration” to specifically exclude “arbitration 

proceedings conducted under or arising out of. . . private sector . . 

. agreements” (Ethics Standards, std. 2(d)), yet that is precisely 

what the contract between Sitrick and Vivera is—a private sector 

agreement between two companies. In the disclosure checklist, 

Judge Swart disclosed that he would “entertain offers of 

employment” “as a dispute resolution neutral” while this 

arbitration was pending. Vivera did not object to this disclosure 

within the 15 days the Act specifies for such objections to be 

made; thus, Vivera is deemed to have acceded to this term of 

Judge Swart’s retention. (§ 1281.91, subds. (b)(1) [15-day 

requirement], (c) [waiver of disqualification if there is no timely 

objection to disclosure].) As a result, Judge Swart was under no 

obligation to make any further disclosures because, as required 

by the Ethics Standards, he had specifically informed the parties 

that he was not required to do so in the initial disclosure 

checklist. (Jolie v. Superior Court (2021) 66 Cal.App.5th 1025, 

1048 [“In nonconsumer arbitrations, . . . if the arbitrator states 

he or she will entertain offers of employment or new professional 

relationships and he or she will not inform the parties of offers or 

acceptance of offers, no further disclosure of subsequent offers 

need be made.”].) Because Judge Swart was not required to 

disclose the Legacy matter (and did so voluntarily solely as a 
9

courtesy to the parties), his failure to do so is not a basis for 

vacating the arbitration award. (Luce, supra, 162 Cal.App.4th at 

p. 735 [“disqualification based on a disclosure is an absolute right 

only when the disclosure is legally required”], italics added.)

Vivera resists this conclusion with two further arguments. 

First, Vivera asserts that the month-long delay between Judge 

Swart being appointed in the Legacy matter and that 

appointment being disclosed provides a basis for disclosure. It 

does not. A disclosure that is not required cannot be the basis for 

vacating an arbitration award, late or not. Second, Vivera 

contends that Judge Swart’s decision to voluntarily disclose the 

Legacy matter somehow makes that disclosure a required one. 

Again, it does not. This precise argument was rejected in Luce, 

supra, 162 Cal.App.4th at pages 724-725, 735, and for what we 

agree are good reasons.

* * *

In light of our analysis, we have no occasion to reach 

Sitrick’s alternative arguments for affirming.3

3 Also, we have no occasion to address whether Vivera’s 

responses to Sitrick’s petitions to confirm the arbitration award—

which appear to have been filed more than 10 days after Vivera 

was served with those petitions—were untimely filed, which 

would thereby obligate us to affirm without reaching the merits 

of Vivera’s challenges on appeal. (See generally, Darby v. 

Sisyphian, LLC (2023) 87 Cal.App.5th 1100, 1111-1112.)
10

DISPOSITION

The judgment is affirmed. Sitrick is entitled to its costs on 

appeal.

CERTIFIED FOR PUBLICATION.

 ______________________, J.

 HOFFSTADT

We concur:

_________________________, P. J.

LUI

_________________________, J.

ASHMANN-GERST