Filed 4 / 19 / 21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

STEVEN M. SPEIER,

Plaintiff , Cross

- defendant and Appellant,

v. THE ADVANTAGE FUND, LLC , et al.,

Defendants , C ross

- complainants and Respondents. G059216
(Super. Ct. No. 30

- 2017

- 00956650)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, James
Di Cesare, Judge. Affirmed.

Law Office of William B. Hanley and William B. Hanley for Plaintiff , Cross

- defendant and Appellant.

O ’ Melveny & Myers, Michael G. Yoder and Brandon C. Ama s h for
Defendants , Cross

- complainants and Respondents.

* * *2 INTRODUCTION Exercising de novo review, w e affirm the trial court’s judgment entered after the trial court granted a m otion to confirm an arbitration award and denied a motion
to vacate that award

. The applicable statute states that an award can only be vacated for a
failure to disclose if the arbitrator “failed to disclose

. . . a ground for disqualification. ” (Code Civ. Proc. , § 1286.2 , subd. (a) ( 6 )( A ) .) 1 Appellant contends the arbitrator failed to make required disclosures. Appellant does not contend the arbitrator was actually biased.
The sole basis for the appeal is the argument the arbitrator did not disclose information
that could cause a reasonable person aware of the facts to entertain a doubt that the
arbitrator would be able to be impartial.

The arbitration involved claims by a former investment fund ma n ager and his former employers, namely, the investment funds. All parties were sophisticated and engaged in a business

— not consumer

— dispute. Both the fund ma n ager an d the
investment funds were represented by large law firms

— Alston & B i rd for the fund manager and O’Melveny & Myers for the investment funds. Both law firms were freque n t users of the service s of the ADR provider, JAMS ; they each had 245 matters
before JA MS in the five

- year period preceding this arbitration.

We explain in detail in this opinion how the arbitrator and JAMS made
extensive prearbitration disclosures. The motion to vacate was based on the sole ground
that the arbitrator did not disclose the extent of JAMS ’s “business relationship” with O’Melveny & Myers and the arbitrator’s ownership i nterest in JAMS (not more than
.1 percent of total revenue in a given year)

.

Based on the facts and circumstances shown by this record, and applying
the analytical framework we discuss, we hold that th e arbitrator’s and JAMS’s
disclosures were sufficient , and the arbitrator was not required to disclose more

1 All further statutory references are to the Code of Civil Procedure unless otherwise specified

.3

information about the ext e nt o f JAMS’s business with O’Melveny & Myers, or the arbitrator’s own owne rship interest in JAMS. There is no issue of a repeat party or lawyer being favored over a non

- repeat party or la w yer; the parties in this business dispute are sophisticated; and the law fir ms were both frequent users of JAMS to the

same ext e nt.

* * *

Before addressing the merits in detail, we will make some observations of the big picture to give context to our decision.

First and foremost, the issues of disqualification and dis c l osu re are vitally important to the integrity of decision s and the decisi on

- making process. ( See Rothman, Fybel, MacLaren & Jacobson, Cal. Jud. Conduct Handbook (4th ed. 2017) § 7:1, p. 387.)

Second, the extent to which a disclosure is required is considered under an objective standard depending on the facts of each case. Hence, the test focuses on a reasonable person aware of the facts. As a result, there is no bright

- line rule and, in
another case, the type of disclosures we conclude were not required here may be required , depending on the facts of th at case.

Thi rd, disclosures are required where a reasonable, informed person c ould
entertain a doubt about the impartiality of the arbitrator. Significantly, “[a]ll the possible things that might be of interest to li tig ants and lawyers are not things which would be

c onsidered, in reason, ” to be relevant to the question of disqualification. (Rothman et al.,
Cal . Jud. Conduc t Handbook, supra , § 7:74, p. 496 .) T he statutes and ethical standards governing arbitrator disqualification upon which this appeal is based do no t require the disclosure of information other than that which could cause a person aware of all the facts to reasonably question the prospective arbitrator’s impartiality. None of the relevant
statutes and ethical standards provide s that a n arbitrator would be disqualified for failing

to disclose information outside of t he reasonable person standard

.4 Fourth, under the relevant t erms of the statute governing vacation of arbitration awards, the award could only be vacated and not confirmed if the arbitrator “failed to disclose

. . . a ground for disqualification. ” (§ 1286.2 , subd. (a) ( 6)(A) .) Un der
the governing statut es and ethi cal standards , required disclosure s are limit e d to matters reasonably related to disqualification . (See Rothman et al., Cal. Jud. Conduct Handbook,

supra , § 7:17, p. 414 , citing Code Civ. Proc., §§ 170.1

- 170.5 & Cal. Code Jud. Ethics,

canon 3E(2)(a). ) Here, that ground of disqualification is whether the arbitrator was required to disclose additional facts that could or might cause a person aware of the facts to reasonably entertain a doubt the arbitrator could not be impartial.

Fifth, and f

inally, si mply because a matter may not seem to be required to be disclosed by an arbitrator does not mean the arbitrator should not disclose the matter

. Indeed, disclosure may cause a meaningful discussion to better inform the arbitrator on the question of disqualification. (Rothman et al., Cal. Jud. Conduct Handbook, supra , § 7:73, p. 495.)

FACTUAL AND PROCEDURAL BACKGROUND 2

I.
T HE F UNDS AND T HEIR I NVESTMENT M ANAGERS
T he Advantage Fund, LLC, the Discovery Fund, LLC, the Freedom Fund, LLC, and the Victory Fund, LLC (collectively, the Funds) invest ed in portfolio s of commercial office buildings. Entities formed by David Colton (the Colton entities) served as the original fund manager for the Funds

. After many years , the Funds’
shareholders and inve stors became dissatisfied with the Funds’ performance and fil e d lawsuits against the Colton entities. In 2013, certain of the asserted claims w ere

2 Th e facts summarized in this section are taken from the final arbitration award and the parties’ counsel’s declarations filed in connection with their resp ective motions to confirm and vacate the award.5

submitted to arbitration

. During the pendency of t hat arbitration, i n March 2015, the
Fund s’ share h olders e lected Steven M. Speier as t he new f und manager

. About two years later , and in accordance with a settlement agreement
between the Colton entities and shareholders of the F unds, the shareholders agreed to cooperate in removing Speier as fund manager and re storing the Colton entit i es to that
role for the Funds

. Speier received written notice of his removal for cause.

In July 2017 , Speier se n t the Funds a letter alleging he was entitled to shareholder distribution payments an d backend intere st payments i n the Fund s’ profits

. The Funds principally asserted that Speier had tak en a shareholder distribution payment, improperly appoint ed himself president of the F unds , and pa id himself a salary for performing the same duties as fund manager

. II.
I NITIATION OF A RBITRATION B ETWEEN S PEIER AND THE F UNDS After the parties unsuccessfully attempted to agree on an arbitrator to resolve their disputes, Speier filed a petition in the t rial court to compel arbitration and
for an order appoint ing an arbitrator. The trial court granted the petition and nominated five retired judges from the list of potential arbitrators submitted by the parties to serve as arbitrator

. The court ordered t hat either the parties agree to one of the five nominees , or the court would select an arbitrator from that list. T he parties failed to stipulate to an
arbitrator before the court’s deadline and the c ourt thereafter appointed the Honorable
Gail A. Andler (Ret.) (the arbitrator) from that list to serve as the arbitrator. Later that month, Speier filed his demand for arbitration with JAMS , asserting claims against the6

Funds for b reach of o perating agreement s, breach of the implied covenant of good faith and fair dealing, declaratory relief , and an accounting.
III.
P REARBITRATION D ISCLOSURES JAMS and the arbitrator provided the parties with disclosures under (1) sections 170.1, 1281.6, 1281.85, 1281.9, 1281.95, and 1297.121, (2) the California
Rules of Court Ethics Standards for Neutral Arbitrators in Contractual Arbitration (the Ethics Standards) , and (3) JAMS Ethical Guidelines for Arbitrators . As relevant to the issues on appeal, the disclosu res included the arbitrator’s statement: “I practice in association with JAMS. Each JAMS neutral, including me, has an economic interest in the overall financial success of JAMS. In addition, because of the nature and size of JAMS, the parties should as sume 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.”

The arbitrator furth er disclosed 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. JAMS provided the parties with reports showing matters involving the arbitrator and Speier , Speier’s arbitration counsel ( Alston
& B i rd ) , the Funds , and the Funds’ arbitration counsel ( O’Melveny & Myers ) . Those reports showed the arbitrator had a then

- open mediation involving attorneys from Al ston & B i rd who were not involved in the instant arbitration, one then

- open mediation involving two attorneys from O’Melveny & Myers who were also serving as the Funds’
counsel in the instant arbitration, and one then

- open arbitration involving attorneys f rom O’Melveny & Myers who were not involved in the instant arbitration

. No party filed any objection to the arbitrator’s assignment.7 IV.
T HE A RBITRATION The Funds filed a response to Speier’s statement of claim s and asserted
their counterclaims against Speier for declaratory relief, breac h of contract, breach of the implied covenant of good faith a n d fair dealing, breach of fiduciary duty, corporate

waste , and unjust enrichment

.

Following nine days of an arbitration hearing, in June 2019, the arbitrator
issued an interim award which denied Speier relief on his claims and awarded the Funds damages in the amount of $353,183.93 plus prejudgment interest. The arbitrator also found the Funds to be the prevailing parties and invited t he Funds to submit an application for attorney fees and costs. Speier did not object to the interim award. The Funds submitted an application for attorney fees and costs, Speier oppos ed the application , and the Funds repl ied . Speier thereafter retained new counsel, William B. Hanley, and requested the opportunity to submit a supplemental opposition ; the arbitrator granted the request

.

In August 2019, the arbitrator issued the final arbitration award which
stated the Funds had established their counter claims and were entitled to a principal
award (which included prejudgment interest) in the amount of $433,117.23
, plus an award of $2,112,974.03 for attorney fees and $157,709.87 in costs.
V.
M OTION S TO C ONFIRM AND V ACATE THE A WARD
I n November 2019, the Funds filed a motion in the trial court seeking an order confirming the final arbitration a w ard and entry of final judgment. Hanley sent a letter to JAM S requesting for the first time “information relating to the following: (1) ownership intere st of [the arbitrator] in JAMS and (2) the number of arbitrat ions JAMS has had with O’Melveny & Myers in the past five (5) years.”8 In response, JAMS sent Hanley a letter stating the arbitrator is “an owner panelist of JAMS” and added that “[o]wners are not privy to information regarding the
number of cases or re v enue related to cases assigned to other panelists. Shareholders receive no information regarding any potential impact on distributions by any particular client, lawyer, or la w firm. Shareholders do not receive credit for the c reation or
retention of client relationships.”

As to Hanley’s second request, JAMS’s response letter stated: “ W e have not limited our response to the O’Melveny firm. Instead, we enclose a report tha t provide s JAMS usage history for all of the firms, lawyers, and parties in this matter for the five years pri o r to commencement of this arbitration.” The enclosed report showed, as reported by the trial court in its minute order confirming the award, tha t in the preceding five years, JAMS administered 58 arbitrations, 27 references, and 160
mediations , for a total of 245 matters, involving O’Melveny & Myers , and 36 arbitrations, 18 court references, and 191 mediations , for a total of 245 matters, involving
Alston & B i rd ; no party objected in the trial court or challenges on appeal the court’s summary of the report

.

The report also stated: “ JAMS administers ap p r o ximately 13,000 cases per
year , ” defined as any case in which JAMS receives a payme nt, regardless of which party or parties paid. The report further stated: “ JAMS has approximately 400 neutrals on its panel, and a li t tle over one quarter o f 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 shareh o lder’s distribution h a s ever exceeded 0 .1% of JAMS total revenue in a given year. Shareholders are not
informed about ho w their profit distributions are imp acted by any particular client, lawyer or l a w firm and share h olders do not receive credit f or the creation or retention of client relationships. ”9 Speier filed a n opposition to the motion to confirm the final award and a
motion to vacate the final award that were both based solely on the ground the arbitrator
failed to make material disclosures required by sections 1286.2, subdivision (a)(6)(A),
1281 , 170.1 , and the Ethic s Standards by failing to disclose her ownership in JAMS and
the amount of business JAMS has conducted with O’Mel v eny & Myers.

Following a hearing , the trial court denied the motion to vacate and
confirmed the final arbitration award. Judgment was entered in favor of the Funds and against Speier in con formity with the final award in the amount of $433,117.23, plus attorney fees in the amount of $2,112,974.03, and costs in the amount of $157,709.87

. Speier appealed.

DISCUSSION
I. O VERVIEW OF AN A RBITRATOR ’ S D UTY TO D ISCLOSE M ATTERS T HAT C OULD OR M IGHT C AUSE A P ERSON A WARE OF THE F ACTS TO R EASONABLY E NTERTAIN A D OUBT THAT THE A RBITRATOR W OULD B E A BLE TO B E I MPARTIAL . A. The California Arbitration Act “The California Arbitration Act (§ 1280 et seq.) ‘represents a comprehensive statutory scheme regulating private arbitration in this state.’ [Citation.] The statutory scheme reflects a ‘ strong public policy in favor of arbitration as a speedy
and relativ ely inexpensive means of dispute resolution. ’ [Citation.] ‘ [I]t is the general rule that parties to a private arbitration impliedly agree that the arbitrator ’ s decision will be both binding and final. ’ ” ( Haworth v. Superior Court (2010) 50 Cal.4 th 372, 380 ( Haworth ) .)
Because a court may not generally review the merits of an arbitration
award , parties to an arbitration agreement assume some risk of an erroneous decision by
the arbitrator. ( Haworth, supra , 50 Cal.4th at p. 380

. ) The Legis la ture has reduced that10

ris k by providing for judicial review when there are “‘serious problems with the award itself, or with the fairness of the arbitration process. ’” ( Ibid. ) The grounds for judicially vacating an arbitration award , howeve r, are strictly limited by statute . As relevant to this

case, s ection 1286.2, subdivision (a) (6)(A) req uires the trial court to vacate an arbitration award by an arbitrator who “failed to disclose within the time required for disclosure a ground f o r disqualification of which the arbitrator was then aware.” Section 1281.9, subdivision (a) requires arbitrators to disclose “all matters
that could cause a person aware of the facts to r easonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial.” (Italics added.) Section 1281.9 provides a list of matters to be disclosed which includes the “existence of any ground specified in Section 170.1 for disqualification of a judge” ( id. , subd. (a)(1)) , “matters required to be dis closed by the ethics standards for neutral arbitrators adopted by the Judicial Council” ( id. , subd. (a)( 2 )) , and “ t he names of the parties to all prior or pending noncollective bargaining cases in which the proposed neutral arbitrator served or is serving as a party arbitrator for any party to the arbitration proceeding or for a lawyer for a party and the results of each case arbitrated to conclusion, including the date of the arbitration award, identification of the prevailing party, the names of the parti es’ attorneys and the amount of monetary damages awarded, if any ” ( id. , subd. (a)(3) , italics
added ). Section 170.1, subdivision (a)(6)(A)(iii) mandates disqualification of a judge when a “person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” Standard 7(d) of t he E thics S tandards requires arbitrators to disclose, among other things, “ all matters that could cause a person aware of the facts

to reasonably entertain a doubt that the arbitrator would be able to be impartial, including , but not limited to , ” as cited by Speier in his opening brief , “ (15) Any other
matter that: [¶] (A) Might cause a person aware of the facts to reasonably entertain a
doubt that the arbitrator would be able to be impartia l.” (Ethics Standards , std.11

7(d)(15)(A), italics added .) In his opening brief, Speier also cites s tandard 9 , which

states : “A person who is nominated or appointed as an arbitrator must make a reasonable
effort to inform himself o r herself of matters tha t m ust be disclosed under standards 7 and
8.” ( Id. , std. 9(a).)
B.

The Objective, Reasonable Person Standard “‘The “reasonable person” is not someone who is “hypersensitive or unduly suspicious,” but rather is a “well

- informed, thoughtful observer.”’ [Citations.] ‘[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.’ [Citations.] [¶] ‘An impression of possible bias in the arbitration context means that one could reasonably form a belief that an arbitrato r was biased for or against a party for a particular reason .’” ( Haworth, supra , 50 Cal.4th at
p. 389.) 3 The reasonable person standard is objective: “ Courts apply an objective test in determining whether under section 1281.9, subdivision (a) neutral arbitrators must disclose matters that could reasonably cause a person aware of the facts to entertain a doubt that the proposed arbitrator would be impartial. [Citation.] The ‘objective

test

. . . focuses on a reasonable person’s perception of bias and does not require actual
bias. ’ [Citation.] Accordingly, we are not concerned with the subjective question of whether the arbitrator was actually biased, but whether an objective, reasonable person aware of the facts reasonably could entertain a doubt tha t he could be impartial in the

3 The California Supreme Court noted: “In interpreting a comparable provision of the federal law requiring recusal of a judge when his or her ‘impartiality might reasonably be questioned’ [citation], federa l courts have stated that the appearance

- of

- partiality ‘standard “must not be so broadly construed that it becomes, in effect, presumptive, so that recusal is mandated upon the merest unsubstantiated suggestion of personal bias or prejudice.”’” ( Haworth, supra , 50 Cal.5th at p. 389.)12

case. ” ( Malek Media Group, LLC v. AXQG Corp. (2020) 58 Cal.App.5th 817, 828, citing Haworth, supra , 50 Cal.4th at pp. 385

- 386.)
II.
S TANDARD OF R EVIEW
Here , the facts are not in dispute. The Supreme Court in H aworth , supra , 50 Cal.4 th at page 38 5 , under similar circumstances , stated that whether the arbitrator

wa s required to make certain disclosures is “ a mixed question of fact and law that should
be reviewed de novo. ” The Supreme Court explained: “ We conclude that employment
of a de novo standard of review for issues concerning arbitrator disclosure will assist in ensuring both consistency in the law and finality of arbitration awards, without sacrificing accuracy in those determination s .” ( Id. at p. 388.)
I II

. U NDER THE C IRCUMSTANCES OF T HIS C ASE , N EITHER THE A RBITRATOR ’ S O WNERSHIP I NTEREST IN JAMS N OR THE E XTENT OF JAMS ’ S B USINESS WITH O’M ELVENY & M YERS C OULD OR M IGHT C AUSE A R EASONABLE P ERSON A WARE OF THE F ACTS TO E NTERTAIN A D OUBT THAT THE A RBITRATOR W OULD B E A BLE TO B E I MPARTIAL . Speier’s challenge to the final arbitration award is not based on either the
contention the arbitrator fail ed to disclose any information specifically required to be disclosed by the C ode of Civil Procedure or E thic s S tandards , or the contention the arbitrator was in fact biased. Instead, Speier’s challenge is limited to the argument th e award must be vacated because the arbitrator failed to disclose information that raises a doubt about the arbitrator’s impartiality within the meaning of sections 170.1, subdivision (a)(6)(A)(iii) and 1281.9, subdivision (a), and s tandard 7 of the E thics S tandards . Speier relies solely o n his contention the arbitrator’s ownership interest in JAMS and JAMS’s13

prior business relationship with O’Melveny & Myers was required to have been disclosed under this category.

I t is undisputed t hat the arbitrator off ered a complete disclosure of her current and prior dealings with the parties, the parties’ attorneys, and the parties’ attorney s’ law firms in this case

.

If this were a consumer case, which all parties agree it was not, s tandard 8
of the E thics S tandar ds would apply to require the type of disclosures Speier argues
should have been made here. Standard 8, entitled “Additional disclosures in consumer arbitrations administered by a provider organization , ” requires at subpart (b) that in a

consumer arbitrat ion , 4 the arbitrator must disclose “[a]ny significant past, present, or

current l y expected finan cial or professional relationship or affiliation between the administering dispute resolution provider organization and a party or lawyer in the
arbitrat ion

. ” In consumer arbitration s , s tandard 8(c) further requires the arbitrator also to

4 The term “Consumer arbitration” is defined in s tandard 2 (d) as “an arbitration conducted under a predispute arbi tration provision contained in a contract that meets the criteria listed in paragraphs ( 1) through (3) below

. . . [¶] (1) The contract is with a consumer party, as defined in these standards; [¶] (2) The contract was drafted by or on behalf of the nonconsumer party; and [¶ ] (3) The consumer party was required to accept th e arbitration provision in the contract.” A “Consumer party,” in turn, is defined in
s tandard 2(e) as “ a party to an arbitration agreement who, in the context of that arbitration agreement, is any of the f ollowing: “(1) An individual who seeks or acquires, including by lease, any goods or services primarily for personal, family, or household purposes including, but not limited to, financial services, insurance, and other goods and services as defined in section 1761 of the Civil Code; “(2) An individual who is an enrollee, a subscriber, or insured in a health

- care service plan within the meaning of section 1345 of the Health and Safety Code or health

- care insurance plan within the meaning of section 106 o f the Insurance Code; “(3) An individual with a medical malpractice claim that is subject to the arbitration agreement; or

“ (4) An employee or an applicant for employment in a dispute arising out of or relating to the employee ’ s employment or the applicant ’ s prospective employment that is subject to the arbitration agreement. ”14

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 th e provider organization.”

Standard 8( a)(2) has this important proviso : “An 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 reasona ble reliance on a consumer party’s representation that the arbitration is not a consumer arbitration.” (Italics added.) 5 Therefore, contrary to Speier’s argument that the arbitrator’s ownership interest in JAMS
and the extent of JAMS ’ s prior business ma tters with O’Melveny & Myers automatically
constitute information that must be disclosed by an arbitrator, s tandard 8(a)(2) makes
clear such information is not subject to mandatory disclosure in nonconsumer
arbitrations

. We next consider whethe r such disclosures were 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.
There are no facts or circums tances in our record , and Speier does not point to any , that
show how the arbitrator ’s recei pt a distribution of not more than .1 percent of JAMS ’s total revenue in a given year in any way favors one party or party’s law firm over the
other

.

5 Speier tacitly admits in his opening brief that a disclosure of the extent of JAMS ’ s business relationships with a law firm involved in an arbitration is not automatically required in the nonconsumer context under California law . Speier argues : “ It should be incumbent on the dispute resolution provider organization who is coordinating, administering, or providing arbitration services to disclose to all parties in writing any signi ficant past, present, or currently expected financial or professional relationship or affiliation between the administering dispute organization provider not only with the parties or the individual lawyer for the parties but also the law firms. Such a rul e exits in consumer arbitrations (Ethics Standard s 8 (b) [&] (d); CCP § 1281.92). It should be part of commercial arbitrations as well.” (Underlining omitted.)15 Th e parties ’ arbitration attorneys are from law firms that had the same
number of matters before JAMS in the five years prior to the arbitrator’s assignment to
this case. Therefore, the information Speier contends should have been known and disclosed by the arbitrat or , whether considered independently or collectively as a whole , does not reasonably raise a doubt about the arbitrator’s impartiality. As the arbitrator did not fail to make a required disclosure, and Speier offers no other challenges to the arbitration award, the trial court did not err by denying Speier’s motion to vacate, confirming the final award, and entering judgment accordingly. (See Rivera v. Shivers (2020) 54 Cal.App.5 th 82, 89 [“Where a party files a petition to confirm an arbitrat ion award pursuant to section 1285 et seq., ‘the court shall confirm the award as made’ unless it ‘vacates the award or dismisses the proceeding .’ (§ 1286.)”].)

At oral argument, Speier’s counsel focused on the words “might” and “could” in the authoritie s. H is argument , unfortunately, ignore d three fundamental principles that apply to the analysis. First, it reads out the legal express concepts of a “person aware of the facts” and a “reasonable” person.

Second, Speier’s argument ignores the context of the statutes and ethics standards upon which he relies , which provide for the disqualification of a prospective
arbitrator based on his or her failure to make a required disclosure under the code. (See § 1281.91 , subd. (a) [“A proposed neutral arbitrator shall be disqualified if he or she fails to comply with Section 1281.9”] , italics added ; § 1286.2 , subd. (a)(6) [an arbitration
award shall be vacated if the arbitrator fail ed to “disclose

. . . a ground for disqualification ” or 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”] , italics added ; E thics Standards, std. 7(a) [“This standard is intended to identify the matters that must be disclosed by a person nominated or appointed as an arbitrator”], italics added.) These statutes and standards do not provide for the disclosure of any additional information a party mig ht find relevant to its16

determination whether to select a particular arbitrator , much less the invalidation of an
arbitration award based on the failure to make such a disclosure.

Third, at oral argument, Speier’s counsel argued that even at the postarbitr ation award stage of the case , Speier ha d an absolute right to disqualify the
arbitrator because of information the arbitrator did not disclose. To review, in order to
vacate an arbitration award based on a disclosure Speier wanted to have been made by
th e arbitrator, the arbitrator had to have failed to disclose “a ground for disqualification.” (§ 1286.2 , subd. (a)(6)(A).) Speier once had the right to disqualify “one court

- appointed arbitrator without cause in any single arbitration” after the arbitrator made disclosures
under section 1281.9 , but any such challenge to the arbitrator’s appointment had to be
made within 15 calendar days after service of the disclosure statement ( § 1281.91,
subd. (b))

. Speier did not make such a challenge during the statutorily proscribed time
frame. He did not make his challenge until after the Funds sought to confirm the
arbitration award. Section 1281 .91, subd ivision (c) provides that except as provided in subdivision (d) , 6 “ in no event may a notice of disqualification be given after a hearing of any contested issue of fact relating to the merits of the claim or after any ruling by the arbitrator regarding any contested matter . (I talics added .) At the procedural stage of
opp osing the Funds’ motion to confirm the arbitration award , and while moving to have the award vacated, Speier had to show the omitted disclosures were disqualifying within the meaning of the governing statutes and ethics standards as a matter of law. For t he
reasons discussed ante , he did not.

6 Subdivision (d) of section 12 8 1.91 provides that if a ground for disqualification specified under 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 .” (Italics added.)17 The statutory treatment of challenges to disclosures makes sense. If a party is dissatisfied with an actual disclosure that is made by the arbitrator, the party has an
absolute one

- time right to disqualify the arbit rator within 15 days. If a party challenges confirmation and seeks to vacate an award already made because of a claim a disclosure

was not ma d e, the party must show that such disclosure would have required disqualification. This Legislature ’s solution ba lances a party’s right to disqualify an arbitrator based on disclosures actually made a gainst a party’s remedy if the party
believes a disclosure must have been made but was not. Section 1286.2, subdivision (a)(6)(A)’ s requirement that the absent dis c losu re would have otherwise been disqualifying is consistent with the rule that any error must be prejudicial to support
reversal.
I V

. C ASES R ELIED ON BY S PEIER

A. Monster Energy Co

. v. City Beverages, LLC Speier heavily relies on the Ninth Circuit decision in Monster Energy Co

. v. City Beverages , LLC (9th Cir. 2019) 940 F.3d 1130 ( Monster Energy ) . While that opinion bears some similarities to the instant case, it is inap posite to the facts before us

.

In Monster Energy , Anhe u ser

- Busch distributor , Oly m pic Eagle , agreed to sell Monster Energy drinks for 20 years in an exclusive territory. ( Monster Energy,

supra , 940 F.3d at p p . 1132

- 1133.) When a dispute arose between the parties, Monster Energy filed an action in the di strict court seeking to compel arbitration of the dispute pursuant to Monster Energy’s form agreement with its distributors, including Olympic Eagle

. ( Id. at p. 1133.) The district court ordered arbitration before JAMS Orange County

. ( Ibid. ) The partie s agreed on an arbitrator from a list of seven proposed arbitrators provide d by JAMS. ( Ibid. ) The selected arbitrator disclosed, among other things, like the arbitrator here, that he had an economic interest in the overall financial18

success of JAMS , and “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 p roceed i ngs with the par ties , c o unsel

or insurers in this case and may do so in the future.” ( I bi d. )
The arbitrator issued an interim award in favor of Monster Energy

. ( Monster Energy, supra , 940 F.3d at p. 1133.) A fter Monster Energy filed a petition to confirm the award, Ol y mpic Eagle cross

- petitioned for its vacatur on the ground the
arbitrator had failed to disclose he was a co

- owner of JAMS and Mons ter Energy ’s business relationship with JAMS. ( Ibid .) The district court confirmed the award and Olympic Eagle appealed. ( Ibid .)

The maj ority in Monster Energy framed the issues presented in this way: “Our inquiry is thus two

- fold: we must determine (1) whether the Arbitrator’s ownership
interest in JAMS was sufficiently substantial, and (2) whether JAMS and Monster were engaged in nontr ivial business dealings. If the answer to both questions is affirmative, then the relationship required disclosure, and supports vacatur. ” ( Monster Energy, supra , 940 F.3d at p. 1136.) The majority held that the arbitrator’s right to a portion of profits
from all JAMS arbitrations was substantial. ( I bid

. ) The majority observed : “Monster’s form contracts contain an arbitration provision that designates JAMS Orange County as
its arbitrator. As a r esult, over the past five years, JAMS has administered 97 arbitrations for Monster: an average rate of more than one arbitration per month. Such a rate of business dealing is hardly trivial, regardless of the exact profit

- share that the Arbitrator
obtain ed. In sum, these facts demonstrate the Arbitrator had a ‘substantial interest in [JAM S,] which has done more than trivial business with [Monster] ’

— facts that create an impression of bias, should have been disclosed, and therefore support vacatur.” ( I bi d

. , fn.
omitted. ) Monster Energy, supra , 940 F.3d 1130 is inapposite to the instant case for
several reasons. First, Monster Energy is a federal court decision interpreting federal law19

and does not rely upon any California statute , E thic s S tandard s , or case law . (See Nagel
v. Twin Laboratories , Inc. (2003) 109 Cal.App.4 th 39, 55 [“ ‘ federal decisional authority is neither binding nor controlling in matters involving state law ’ ”] .)

Second, the most glaring difference s are th a t Monster Energy was a party to the dispute, had appea r ed before JAMS repeatedly , and had JAMS written into its arbitration agreement. None of those facts is present here. The arbitration provision in the operating agreements d id not require the use of or even suggest any part icular arbitrator or arbitration provider . Furthermore, it was Speier , not the Funds, who moved to compel the arbitration of the parties’ disputes and for an order appointing an arbitrator
in this case

. Finally and s ign i ficantly, the majority opinion concluded that Monster Energy’s repeat business with JAMS , which included 97 matters in the previous five
years , was nontrivial , and that that nontrivial business history, coupled with the arbitrator’s ownership stake in JAMS, triggered the duty to disclose. ( Monster Energy,

supra , 940 F.3d at p. 1136. ) Conspicuously absent from the opinion is any reference to Olympic Eagle’s prior business dealings with JAMS , if any. ( Id. at p. 1140, fn. 2 (dis. opn.) [ “ There appears to be nothing in the record that indicates whether Olympic Eagle was a repeat customer of JAMS or how frequently it engages in arbitrations ” ].) In the absence of such information, t he majority opinion in Monster Energy implicitly assumes Olympic Eagle had little if any such prior business dealings with JAMS

. The majority expressed concern that disclosures of prior business dealings “ are particularly important
for one

- off parties facing ‘ repeat players. ’ See Lisa B. Bingham, Employment
Arbitration: The Repeat Player E ffect, 1 Emp. Rts. & Emp. Pol ’ y J. 189, 209

- 17 (1997) (finding that employees disproportionately failed to recover damages against repeat

- player employers compared to non

- repeat

- player employers). ” ( Id. at p. 1138 , italics omitted .)20 Here, Speier’s and th e Funds’ arbitration counsel’s respective law firms had significant business involvement with JAMS and had had an equal number of matters
before it in the preceding five

- year period

. So even if we were to adopt Monster Energy’s “non trivial” business deali ngs disclosure standard, on our record, the degree of each law firm’s business dealings with JAMS w as nontrivial in relation to the other. And, of course, here there is no contention of undisclosed repeat business by a party.
B. Advantage Medical Services, LLC v. Hoffman Speier argues that the arbitrator was not excused from disclosing her ownership interest in JAMS or JAMS’s business history with O’Melveny & Myers
because she was unaware of it. In support of his argument, Speier cites Advantage Medical Services, LLC v. H offma n (200 8 ) 160 Cal.App.4 th 806 ( Advantage )

. Advantage is also inapp licable to the instant case.

In Advantage , supra , 160 Cal.App.4th at page 809 , the defendants sought
an order disqualify ing the arbitrator and vacat ing an arbitration award after they had
learned that the arbitrator and his law firm had represented several protection and indemnity clubs (P&I Clubs) which procured reinsurance support from syndicates of Lloyd ’ s of London (Lloyd’s) and that Lloyd’s also had insured one of the p laintiffs in the
arbitration

. The arbitrator had granted th at plaintiff’s request to permit a representative
from its insurer to attend the arbitration without requiring the plaintiff to disclose to the defendants, or apparently even to the arbitrator, the identity of that representative or the
insurer itself. ( Id. at p. 818.)

Substantial evidence identified in detail in the o pinion showed the significant contacts and relationship s between the arbitrator and his law firm to Lloyd’s

— the arbitrator would have been required to disclose such information had he known the identity of the representative or the insurer itself

. ( Advant age , supra , 160 Cal.App.4th at
p

. 819.) The arbitrato r , however , denied the defendants’ requests for disclosure of the21

identity of the insurer and/or the insurer’s representative who was present during the
arbitration

. ( Id. at p. 818.) Even after the arbitrator had learned the identity of the Lloyd’s coverage counsel, he did not make any disclosures about his professional relationship with Lloyd’s ; “[c]onspicuously absent from the record is evidence of any disclosure by [the arbitrator] regarding his or [his law firm’s] involvement with Lloyd’s in representing P&I Club clients

. ” ( Ibid. ) The arbitrator later denied he or his law firm ever represented a syndicate of Lloyd’s but did not address whether he or his law firm had any other busi ness relationship with or connection to Lloyd’s members or syndicates
other than an attorney

- client relationship. ( Id. at p. 818.)

Noting the “unusual and striking circumstances triggering defendants’ argument [the arbitrator] violated his disclosure o bligations, ” a panel of this court in Advantage , supra , 160 Cal.App.4th 806 held th e trial court did not err by vacating the
arbitration award because (1) the arbitrator had a duty , mandated by section 1281.85,
subdivision (a), through its incorporation of standard 9(a) of the Ethics Standards , 7 to inquire about the identity of the plaintiff’s insurer’s representative; (2) the arbitrator had a mandatory obligation under section 1281 .9 to disclose his and his law firm’s involvement with Lloyd’ s ; (3) the arbitrator’s failure to inquire did not excuse his failure to make mandatory disclosures; and (4) the information that the arbitrator failed to disclose

“ ‘ could cause a person aware of the facts to reasonably entertain a doubt that [ the
arbitrator ] would be able to be impartial

. ’ ” ( Id. at p p

. 818

- 819.)

In Advantage , supra , 160 Cal.App.4th 806, the arbitrator’s failure to inquire
at least contributed to the arbitrator’s failure to make mandatory disclosures under the
relevant law

. Here, even if we were to assume the arbitrator had had a duty to make inquiries about her ownership status with JAMS and about JAMS’s business relationship

7 Standard 9(a) states: “A person who is nominated or appointed as an arbitrator must make a reasonable effort to inform himself or herself of matter s that must be disclosed under standards 7 and 8.”22

with O’Melveny & My ers during the five years preceding arbitration , any failure to make such inquiries was harmless because, for the reasons discussed ante , such information
could not cause a reasonable person aware of the facts to doubt th e impartiality of the
arbitrator.

DISPOSITION

The judgment is affirmed. Respondents shall recover costs on appeal.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

GOETHALS, J.