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, Cross-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. Amash for 

Defendants, Cross-complainants and Respondents.

* * *
2

INTRODUCTION

Exercising de novo review, we affirm the trial court’s judgment entered 

after the trial court granted a motion 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 manager and 

his former employers, namely, the investment funds. All parties were sophisticated and 

engaged in a business—not consumer—dispute. Both the fund manager and the 

investment funds were represented by large law firms—Alston & Bird for the fund 

manager and O’Melveny & Myers for the investment funds. Both law firms were 

frequent users of the services of the ADR provider, JAMS; they each had 245 matters 

before JAMS 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 interest 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 the 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 extent of JAMS’s business with O’Melveny & Myers, or the 

arbitrator’s own ownership interest in JAMS. There is no issue of a repeat party or 

lawyer being favored over a non-repeat party or lawyer; the parties in this business 

dispute are sophisticated; and the law firms were both frequent users of JAMS to the 

same extent. 

* * *

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 disclosure are vitally 

important to the integrity of decisions and the decision-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 that case.

Third, disclosures are required where a reasonable, informed person could 

entertain a doubt about the impartiality of the arbitrator. Significantly, “[a]ll the possible 

things that might be of interest to litigants and lawyers are not things which would be 

considered, in reason,” to be relevant to the question of disqualification. (Rothman et al., 

Cal. Jud. Conduct Handbook, supra, § 7:74, p. 496.) The statutes and ethical standards 

governing arbitrator disqualification upon which this appeal is based do not 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 provides that an arbitrator would be disqualified for failing 

to disclose information outside of the reasonable person standard.
4

Fourth, under the relevant terms 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).) Under

the governing statutes and ethical standards, required disclosures are limited 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 finally, simply 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 BACKGROUND2

I.

THE FUNDS AND THEIR INVESTMENT MANAGERS

The Advantage Fund, LLC, the Discovery Fund, LLC, the Freedom Fund, 

LLC, and the Victory Fund, LLC (collectively, the Funds) invested in portfolios 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 investors became dissatisfied with the Funds’ performance and filed 

lawsuits against the Colton entities. In 2013, certain of the asserted claims were 

2

 The facts summarized in this section are taken from the final arbitration award and the 

parties’ counsel’s declarations filed in connection with their respective motions to 

confirm and vacate the award.
5

submitted to arbitration. During the pendency of that arbitration, in March 2015, the 

Funds’ shareholders elected Steven M. Speier as the new fund manager. 

About two years later, and in accordance with a settlement agreement 

between the Colton entities and shareholders of the Funds, the shareholders agreed to 

cooperate in removing Speier as fund manager and restoring the Colton entities to that 

role for the Funds. Speier received written notice of his removal for cause. 

In July 2017, Speier sent the Funds a letter alleging he was entitled to 

shareholder distribution payments and backend interest payments in the Funds’ profits. 

The Funds principally asserted that Speier had taken a shareholder distribution payment, 

improperly appointed himself president of the Funds, and paid himself a salary for 

performing the same duties as fund manager. 

II.

INITIATION OF ARBITRATION BETWEEN SPEIER AND THE FUNDS

After the parties unsuccessfully attempted to agree on an arbitrator to 

resolve their disputes, Speier filed a petition in the trial court to compel arbitration and 

for an order appointing 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 that either the parties agree to one of the five nominees, or 

the court would select an arbitrator from that list. The parties failed to stipulate to an 

arbitrator before the court’s deadline and the court 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 the 
6

Funds for breach of operating agreements, breach of the implied covenant of good faith 

and fair dealing, declaratory relief, and an accounting. 

III.

PREARBITRATION DISCLOSURES

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 disclosures 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 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.” 

The arbitrator further 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 

& Bird), the Funds, and the Funds’ arbitration counsel (O’Melveny & Myers). Those 

reports showed the arbitrator had a then-open mediation involving attorneys from Alston 

& Bird 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 from

O’Melveny & Myers who were not involved in the instant arbitration. No party filed any 

objection to the arbitrator’s assignment.
7

IV.

THE ARBITRATION

The Funds filed a response to Speier’s statement of claims and asserted 

their counterclaims against Speier for declaratory relief, breach of contract, breach of the 

implied covenant of good faith and 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 the 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 opposed the 

application, and the Funds replied. 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 counterclaims 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.

MOTIONS TO CONFIRM AND VACATE THE AWARD

In November 2019, the Funds filed a motion in the trial court seeking an 

order confirming the final arbitration award and entry of final judgment. Hanley sent a 

letter to JAMS requesting for the first time “information relating to the following: 

(1) ownership interest of [the arbitrator] in JAMS and (2) the number of arbitrations 

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 revenue related to cases assigned to other panelists. Shareholders 

receive no information regarding any potential impact on distributions by any particular 

client, lawyer, or law firm. Shareholders do not receive credit for the creation or 

retention of client relationships.” 

As to Hanley’s second request, JAMS’s response letter stated: “We have 

not limited our response to the O’Melveny firm. Instead, we enclose a report that 

provides JAMS usage history for all of the firms, lawyers, and parties in this matter for 

the five years prior to commencement of this arbitration.” The enclosed report showed, 

as reported by the trial court in its minute order confirming the award, that 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 & Bird; no party objected in the trial court or challenges on appeal the court’s 

summary of the report. 

The report also stated: “JAMS administers approximately 13,000 cases per 

year,” defined as any case in which JAMS receives a payment, regardless of which party 

or parties paid. The report 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.” 
9

Speier filed an 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 Ethics Standards by failing to disclose her ownership in JAMS and 

the amount of business JAMS has conducted with O’Melveny & 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 conformity 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.

OVERVIEW OF AN ARBITRATOR’S DUTY TO DISCLOSE MATTERS THAT COULD OR 

MIGHT CAUSE A PERSON AWARE OF THE FACTS TO REASONABLY ENTERTAIN A 

DOUBT THAT THE ARBITRATOR WOULD BE ABLE TO BE IMPARTIAL.

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 relatively 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.4th 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 Legislature has reduced that 
10

risk 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, however, are strictly limited by statute. As relevant to this 

case, section 1286.2, subdivision (a)(6)(A) requires the trial court to vacate an arbitration 

award by an arbitrator who “failed to disclose within the time required for disclosure a 

ground for 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 reasonably 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 disclosed by the ethics standards for neutral arbitrators adopted by 

the Judicial Council” (id., subd. (a)(2)), and “the 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 parties’ 

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 the Ethics Standards 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 impartial.” (Ethics Standards, std. 
11

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

states: “A person who is nominated or appointed as an arbitrator must make a reasonable 

effort to inform himself or herself of matters that must 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 arbitrator 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 that 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], federal 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.

STANDARD OF REVIEW

Here, the facts are not in dispute. The Supreme Court in Haworth, supra,

50 Cal.4th at page 385, under similar circumstances, stated that whether the arbitrator 

was 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 determinations.” (Id. at p. 388.)

III.

UNDER THE CIRCUMSTANCES OF THIS CASE, NEITHER THE ARBITRATOR’S 

OWNERSHIP INTEREST IN JAMS NOR THE EXTENT OF JAMS’S BUSINESS WITH 

O’MELVENY & MYERS COULD OR MIGHT CAUSE A REASONABLE PERSON AWARE OF 

THE FACTS TO ENTERTAIN A DOUBT THAT THE ARBITRATOR WOULD BE ABLE TO BE 

IMPARTIAL.

Speier’s challenge to the final arbitration award is not based on either the

contention the arbitrator failed to disclose any information specifically required to be 

disclosed by the Code of Civil Procedure or Ethics Standards, or the contention the 

arbitrator was in fact biased. Instead, Speier’s challenge is limited to the argument the 

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 standard 7 of the Ethics Standards. Speier 

relies solely on his contention the arbitrator’s ownership interest in JAMS and JAMS’s 
13

prior business relationship with O’Melveny & Myers was required to have been disclosed 

under this category.

It is undisputed that the arbitrator offered a complete disclosure of her 

current and prior dealings with the parties, the parties’ attorneys, and the parties’ 

attorneys’ law firms in this case. 

If this were a consumer case, which all parties agree it was not, standard 8 

of the Ethics Standards 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 arbitration,

4

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) further requires the arbitrator also to 

4

 The term “Consumer arbitration” is defined in standard 2(d) as “an arbitration 

conducted under a predispute arbitration 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 

the arbitration provision in the contract.” A “Consumer party,” in turn, is defined in 

standard 2(e) as “a party to an arbitration agreement who, in the context of that arbitration 

agreement, is any of the following:

“(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 of 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 the 

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 reasonable 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 matters with O’Melveny & Myers automatically 

constitute information that must be disclosed by an arbitrator, standard 8(a)(2) makes 

clear such information is not subject to mandatory disclosure in nonconsumer 

arbitrations.

We next consider whether 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 circumstances in our record, and Speier does not point to any, that 

show how the arbitrator’s receipt 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 

significant 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 rule exits in 

consumer arbitrations (Ethics Standards 8 (b) [&] (d); CCP § 1281.92). It should be part 

of commercial arbitrations as well.” (Underlining omitted.) 
15

The 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 arbitrator, 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.5th 82, 89 [“Where a party files a petition to confirm an arbitration 

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 authorities. His argument, unfortunately, ignored 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 failed 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; Ethics 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 might find relevant to its 
16

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 

postarbitration award stage of the case, Speier had 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 

the 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, subdivision (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. (Italics added.) At the procedural stage of 

opposing 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 the 

reasons discussed ante, he did not.

6

 Subdivision (d) of section 1281.91 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 arbitrator within 15 days. If a party challenges 

confirmation and seeks to vacate an award already made because of a claim a disclosure 

was not made, the party must show that such disclosure would have required 

disqualification. This Legislature’s solution balances a party’s right to disqualify an 

arbitrator based on disclosures actually made against 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 disclosure would have otherwise been 

disqualifying is consistent with the rule that any error must be prejudicial to support 

reversal.

IV.

CASES RELIED ON BY SPEIER

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 inapposite to the facts before us. 

In Monster Energy, Anheuser-Busch distributor, Olympic Eagle, agreed to 

sell Monster Energy drinks for 20 years in an exclusive territory. (Monster Energy, 

supra, 940 F.3d at pp. 1132-1133.) When a dispute arose between the parties, Monster 

Energy filed an action in the district 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 parties agreed on an arbitrator from a list of seven proposed 

arbitrators provided by JAMS. (Ibid.) The selected arbitrator disclosed, among other 

things, like the arbitrator here, that he had an economic interest in the overall financial 
18

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 proceedings with the parties, counsel 

or insurers in this case and may do so in the future.” (Ibid.)

The arbitrator issued an interim award in favor of Monster Energy. 

(Monster Energy, supra, 940 F.3d at p. 1133.) After Monster Energy filed a petition to 

confirm the award, Olympic Eagle cross-petitioned for its vacatur on the ground the 

arbitrator had failed to disclose he was a co-owner of JAMS and Monster Energy’s 

business relationship with JAMS. (Ibid.) The district court confirmed the award and 

Olympic Eagle appealed. (Ibid.) 

The majority 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 nontrivial 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. (Ibid.) The majority observed: “Monster’s 

form contracts contain an arbitration provision that designates JAMS Orange County as 

its arbitrator. As a result, 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 

obtained. In sum, these facts demonstrate the Arbitrator had a ‘substantial interest in 

[JAMS,] which has done more than trivial business with [Monster]’—facts that create an 

impression of bias, should have been disclosed, and therefore support vacatur.” (Ibid., 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 law
19

and does not rely upon any California statute, Ethics Standards, or case law. (See Nagel 

v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39, 55 [“‘federal decisional authority 

is neither binding nor controlling in matters involving state law’”].) 

Second, the most glaring differences are that Monster Energy was a party

to the dispute, had appeared 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 did not require the use of or even suggest any particular 

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 significantly, 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, the 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 Effect, 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 the 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 “nontrivial” business dealings disclosure standard, on our record, the degree of 

each law firm’s business dealings with JAMS was 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. Hoffman (2008) 160 Cal.App.4th 806 (Advantage). Advantage

is also inapplicable to the instant case. 

In Advantage, supra, 160 Cal.App.4th at page 809, the defendants sought 

an order disqualifying the arbitrator and vacating 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 plaintiffs in the 

arbitration. The arbitrator had granted that 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 opinion showed the 

significant contacts and relationships 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. (Advantage, supra, 160 Cal.App.4th at 

p. 819.) The arbitrator, however, denied the defendants’ requests for disclosure of the 
21

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 business 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 obligations,” a panel of this court in 

Advantage, supra, 160 Cal.App.4th 806 held the 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 pp. 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 matters that must be disclosed 

under standards 7 and 8.” 
22

with O’Melveny & Myers 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 the 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.