Filed 6/22/15 Morris v. O’Neill CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

RENA MORRIS,

Plaintiff and Appellant,

v.

MICHAEL O’NEILL et al.,

Defendants and Respondents.

 B258467

 (Los Angeles County

 Super. Ct. No. BS147624)

APPEAL from an order of the Superior Court of Los Angeles County, Joseph A. 

Kalin, Judge. Affirmed. 

John M. Gerro for Plaintiff and Appellant. 

No appearance for Defendants and Respondents. 

______________________
2

Rena Morris appeals from the denial of her petition to vacate a contractual 

arbitration award and to rescind her agreement to arbitrate her dispute with Michael 

O’Neill doing business as O’Neill Construction, a general contractor, relating to her

home improvement agreement with O’Neill. The arbitrator found Morris had established 

claims against O’Neill totaling $31,250 for unfinished or inadequately performed work 

on the home remodeling project, but concluded there was $32,957.11 due on the parties’ 

contract and awarded O’Neill the net balance of $1,707.11. Morris sought to vacate the 

award on the grounds the underlying contract violated public policy and should not have 

been enforced, the award was obtained by fraud or other undue means, the arbitrator 

failed to disclose required information and was biased in favor of the general contractor 

and her consent to arbitration was obtained through material misrepresentations 

concerning the arbitration process. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Dispute Regarding O’Neill’s Work on the Remodeling Project

Morris and O’Neill signed a proposal and contract for home improvement on 

December 23, 2010 for additions, remodeling and alterations to Morris’s home in 

Pasadena with a total price of $309,945. The contract provided the work was to be done 

in accordance with the approved plans attached as Addendum “A.” The addendum 

included a cost breakdown for separate items of work. Overhead and profit of $46,700

(approximately 2.5 percent for overhead; 15 percent for profit) was included in the total 

contract price. Morris gave O’Neill a check for $30,994.50 (10 percent of the contract 

price) the same day as the contract was signed.

During the period O’Neill worked on the project, he invoiced a total of 

$278,258.50; Morris paid O’Neill $270,803 and also paid approximately $32,000 for 

appliances, hardware and similar items that were separately billed. In December 2012 

Morris refused to pay O’Neill’s most recent invoice (for $7,455.50) because of her 

concerns about the quality of the work being performed and O’Neill’s failure to complete 

“punch list” items. O’Neill told Morris he would not continue working without payment 
3

of the invoice; Morris responded that she wanted assurances the defective work and 

punch list items would be corrected. An impasse was reached; and O’Neill stopped

working on the project.

2. Morris’s Complaint to the Contractors State License Board and Election To 

Arbitrate the Dispute

Morris filed a complaint against O’Neill with the Contractors State License Board 

(CSLB). The CSLB sent an expert to Morris’s residence to inspect and evaluate 

O’Neill’s work. In a July 10, 2013 report of inspection and estimate, a portion of which 

is attached as an exhibit to Morris’s petition to vacate the arbitration award, the CSLB 

expert concluded the work did not “meet accepted trade standards for goods & workmanlike construction” and estimated the cost to complete or correct the work to be 

$51,284.56. 

Rather than proceed with a disciplinary proceeding, the CSLB offered the parties 

the option of arbitrating their dispute through the CSLB’s voluntary arbitration program

as authorized by Business and Professions Code section 7085 et seq.

1

The Voluntary 

Arbitration Program Guide provided by CSLB to Morris and O’Neill with its arbitration

proposal explained, after the parties have agreed to arbitrate, CSLB refers the dispute to 

an “arbitration forum” to administer the arbitration: “The arbitration forum has 

professional arbitrators throughout California who have been trained to resolve 

construction disputes. All have undergone intensive training to ensure that both parties 

receive a fair hearing.” The brochure also advised, “Each party will be responsible for 

his or her own case presentation at the hearing, including relevant documents.” The 

Arbitration Mediation Conciliation Center (AMCC) is the dispute resolution firm used by 

CSLB to administer its voluntary arbitration program. 

Morris agreed to arbitration, listed items and related costs caused by O’Neill’s 

defective workmanship or failure to perform, and demanded the maximum $50,000 

award permitted by the CSLB program. O’Neill also agreed to arbitration; disputed 

 

1

Undesignated statutory references are to this code.
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Morris’s claims, asserting her estimated costs to complete or repair were excessive and 

many of the listed items were not part of the contract; and sought his own award of 

$30,000 (the approximate unpaid amount on the original home improvement contract). 

Morris and O’Neill were provided with the names of three potential arbitrators and their 

resumes. The parties selected Thomas L. Craigo.

3. The Arbitration

The arbitration took place on November 13, 2013, four to six weeks after the 

arbitrator had been selected. Neither side conducted any discovery. At the hearing

Morris presented the expert testimony of the CSLB inspector and a contractor she had 

retained who testified regarding the costs to complete the work O’Neill allegedly had not 

done. O’Neill, who was represented by counsel, testified, and Morris cross-examined 

him. O’Neill also presented declarations from an architect, electrician and a flooring 

subcontractor regarding the work they had performed at Morris’s residence. The 

arbitrator overruled Morris’s objections that she had not been told declarations could be 

submitted and that their use unfairly deprived her of an opportunity to cross-examine 

those three witnesses. 

The arbitrator issued his award on November 27, 2013. He found in favor of 

Morris on 11 of her claims (for example, he found she was entitled to $7,800 to 

“[r]emove and replace concrete driveway not done per contract” and $500 to “[r]eplace 

one (1) kitchen cabinet door and hardware, and one (1) glass bull nose tile in kitchen and 

re-grout, and adjust upper cabinet door in laundry room”), but denied four of her claims 

as not within the scope of O’Neill’s work. In total, the arbitrator found Morris had 

established $31,250 in claims for unfinished or inadequately performed work on the 

home remodeling project. However, he also concluded there was $32,957.11 due on the 

parties’ contract and awarded O’Neill the net balance of $1,707.11.

On December 7, 2013 Morris submitted an application to correct the arbitration 

award that challenged the arbitrator’s calculation of many of the items in his award, 

including the use of the full contract price as a basis for determining O’Neill’s 
5

entitlement to an offset. Morris argued O’Neill did not incur overhead and should not 

earn a profit on items he did not complete. After receiving a response from O’Neill’s 

counsel, the arbitrator denied the application, noting, “The Arbitrator has affirmed the 

amounts and descriptions listed in the Award, including the contract balance due 

Respondent. Accordingly, since no typographical error or miscalculation has been made, 

the Arbitrator finds no grounds for a correction under the purview of Business and 

Professions Code [section] 7085.5(s).” 

4. Morris’s Motion To Vacate the Arbitration Award

On March 5, 2014 Morris petitioned the superior court to vacate the arbitration 

award.

2

Her petition was supported by her own declaration and numerous exhibits. 

Morris contended aspects of her contract with O’Neill violated the requirements of the 

Business and Professions Code for home improvement contracts and, as such, was 

contrary to public policy and should not have been enforced. She also asserted material 

information about the arbitration process was not disclosed to her, particularly the 

unavailability of discovery and the fact that most of the possible arbitrators are Caucasian 

males and heavily aligned with the construction or insurance industries. As a result, she 

argued, her consent to arbitration was not informed. Morris additionally contended the 

arbitration award had been obtained by fraud or other undue means because O’Neill 

submitted altered or forged documents and the improper denial of prehearing discovery 

prevented her from properly responding to that material. Finally, Morris argued that both 

AMCC and arbitrator Craigo had failed to comply with disclosure requirements 

governing arbitration, including providing necessary information about potential conflicts 

of interest, and that Craigo exhibited extreme bias in favor of O’Neill.

O’Neill filed a response to the petition with his own declaration and documentary 

exhibits. He also filed evidentiary objections (primarily on the grounds of lack of 

 

2

The petition was filed by Morris herself with no identification of counsel who 

might be representing her. By the time her reply memorandum was filed, Morris was 

formally represented by counsel.
6

foundation or hearsay) to significant portions of Morris’s declaration in support of the 

petition. Morris filed a reply memorandum, a reply declaration and a response to the 

evidentiary objections. 

A hearing on Morris’s petition was held on May 13, 2014, and the matter was 

submitted. The appellate record does not include a reporter’s transcript of the hearing. 

On May 19, 2014 the court issued its ruling on submitted matters, without further written 

findings or explanation, sustaining nine of O’Neill’s evidentiary objections, denying the 

petition to vacate the arbitration award and denying the petition for relief from stipulation 

to voluntary CSLB arbitration. 

DISCUSSION

1. Standard of Review

As the Supreme Court and Courts of Appeal have repeatedly held, when parties 

agree to private arbitration, the scope of judicial review is strictly limited to give effect to 

the parties’ intent to bypass the judicial system and thereby avoid potential delays at the 

trial and appellate levels. (See Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 10

(Moncharsh); Gray v. Chiu (2013) 212 Cal.App.4th 1355, 1362.) Generally, a court may 

not review the merits of the controversy between the parties, the validity of the 

arbitrator’s reasoning or the sufficiency of the evidence supporting the arbitration award. 

(Moncharsh, at p. 10.) “‘[I]t is within the power of the arbitrator to make a mistake either 

legally or factually. When parties opt for the forum of arbitration they agree to be bound 

by the decision of that forum knowing that arbitrators, like judges, are fallible.’” (Id. at 

p. 12; accord, Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909, 916 [“[g]enerally, courts 

cannot review arbitration awards for errors of fact or law, even when those errors appear 

on the face of the award or cause substantial injustice to the parties”]; Cable Connection, 

Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1340 [“the California Legislature 

‘adopt[ed] the position taken in case law . . . that is, “that in the absence of some limiting 

clause in the arbitration agreement, the merits of the award, either on questions of fact or 

of law, may not be reviewed except as provided in the statute”’”].)
7

Judicial review of an arbitration award is limited to “circumstances involving 

serious problems with the award itself, or with the fairness of the arbitration process.” 

(Moncharsh, supra, 3 Cal.4th at p. 12.) The only grounds on which a court may vacate

an award are enumerated in Code of Civil Procedure section 1286.2.

3

“[C]ourts are 

authorized to vacate an award if it was (1) procured by corruption, fraud, or undue 

means; (2) issued by corrupt arbitrators; (3) affected by prejudicial misconduct on the 

part of the arbitrators; or (4) in excess of the arbitrators’ powers.” (Cable Connection, 

Inc. v. DIRECTV, Inc., supra, 44 Cal.4th at p. 1344.) “There is a presumption favoring 

the validity of the award, and [the party challenging the award] bears the burden of 

establishing [a] claim of invalidity.” (Betz v. Pankow (1993) 16 Cal.App.4th 919, 923.)

Although a court generally may not review an arbitrator’s decision for errors of 

fact or law, an arbitrator exceeds his or her power within the meaning of Code of Civil 

Procedure section 1286.2 and the award is properly vacated when it violates an explicit 

legislative expression of public policy (see Moncharsh, supra, 3 Cal.4th at p. 32;

Cotchett, Pitre & McCarthy v. Universal Paragon Corp. (2010) 187 Cal.App.4th 1405, 

1416-1417), or when granting finality to the arbitration would be inconsistent with a 

 

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“[T]he court shall vacate the award if the court determines any of the following: 

[¶] (1) The award was procured by corruption, fraud or other undue means. [¶] 

(2) There was corruption in any of the arbitrators. [¶] (3) The rights of the party were 

substantially prejudiced by misconduct of a neutral arbitrator. [¶] (4) The arbitrators 

exceeded their powers and the award cannot be corrected without affecting the merits of 

the decision upon the controversy submitted. [¶] (5) The rights of the party were 

substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon 

sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence 

material to the controversy or by other conduct of the arbitrators contrary to the 

provisions of this title. [¶] (6) An arbitrator making the award either: (A) failed to 

disclose within the time required for disclosure a ground for disqualification of which the 

arbitrator was then aware; or (B) 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. However, this subdivision does not apply to 

arbitration proceedings conducted under a collective bargaining agreement between 

employers and employees or between their respective representatives.” (Code Civ. Proc., 

§ 1286.2, subd. (a).)
8

party’s unwaivable statutory rights. (Pearson Dental Supplies, Inc. v. Superior Court

(2010) 48 Cal.4th 665, 679; see Armendariz v. Foundation Health Psychcare Services, 

Inc. (2000) 24 Cal.4th 83, 106; Moncharsh, at p. 32; Ahdout v. Hekmatjah (2013) 

213 Cal.App.4th 21, 38-39 (Ahdout).)

Absent findings on disputed facts, we independently review the superior court’s 

order confirming or denying a request to vacate the award, including a determination 

whether the arbitrator failed to make required disclosures (Haworth v. Superior Court

(2010) 50 Cal.4th 372, 385-387; Gray v. Chiu, supra, 212 Cal.App.4th at p. 1362) and 

whether the arbitrator exceeded his or her powers in granting relief (Advanced Micro 

Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 376, fn. 2; Malek v. Blue Cross of 

California (2004) 121 Cal.App.4th 44, 55). However, to the extent the superior court’s 

decision to grant the petition to confirm and deny the petition to vacate the award rests on 

its determination of disputed factual issues, we review the court’s orders under the 

substantial evidence standard. (Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1217; 

Malek, at pp. 55-56; cf. Haworth, at pp. 382-383.)

2. O’Neill’s Violation of Several Statutory Requirements for Home Improvement 

Contracts Does Not Preclude Enforcement of the Contract Through 

Arbitration or Justify Expanded Judicial Review of the Arbitration Award

The Supreme Court in Moncharsh, supra, 3 Cal.4th at page 31 recognized that 

“‘the rules which give finality to the arbitrator’s determination of ordinary questions of 

fact or of law are inapplicable where the issue of illegality of the entire transaction is 

raised in a proceeding for the enforcement of the arbitrator’s award.’” In addition, the 

Moncharsh Court acknowledged “there may be some limited and exceptional 

circumstances justifying judicial review of an arbitrator’s decision when a party claims 

illegality affects only a portion of the underlying contract. Such cases would include 

those in which granting finality to an arbitrator’s decision would be inconsistent with the 

protection of a party’s statutory rights. [Citation.] [¶] Without an explicit legislative 

expression of public policy, however, courts should be reluctant to invalidate an 

arbitrator’s award on this ground.” (Id. at p. 32.) As recently summarized by our 
9

colleagues in Division Four of this court in Ahdout, supra, 213 Cal.App.4th at page 37, 

“Numerous courts have since construed Moncharsh to stand for the proposition that an 

arbitrator exceeds its power within the meaning of Code of Civil Procedure section 

1286.2 by issuing an award that violates a party’s statutory rights or ‘an explicit 

legislative expression of public policy.’” [Citations.] However, “[t]his exception is 

applicable only when there has been ‘“a clear expression of illegality or public policy”’ 

that undermines the presumption in favor of private arbitration.” (Ahdout, at p. 38.) 

Seeking to invoke this public policy exception to the general rule of limited 

judicial review of arbitration awards, Morris has identified in her appellate brief, as she 

did in her petition to vacate the arbitration award, a number of ways in which she 

contends the home improvement contract provided by O’Neill violated the disclosure 

requirements for such contracts set forth in section 7159. For example, it failed to 

include the approximate start and completion dates for the project or to provide written 

notice whether O’Neill had commercial general liability insurance and whether he and his 

subcontractors had worker’s compensation insurance.

4

 In addition, the contract did not 

state, as required, “the downpayment may not exceed $1,000 or 10 percent of the contract 

price, whichever is less”; and O’Neill, in fact, asked Morris to provide an initial deposit 

of $30,994.50 in violation of section 7159.5, subdivision (a)(3). 

Morris emphasizes that violation of the statutory limit on downpayments is a 

misdemeanor (see § 7159.5, subd. (b)), and failure by a contractor to provide the required 

information, notices and disclosure in the contract “is cause for discipline.” (§ 7159, 

subd. (a)(5).) As a consequence, she argues, the home improvement contract was illegal 

and should not have been enforced by the arbitrator. In support of her position Morris

quotes extensively from Ahdout, supra, 213 Cal.App.4th 21, in which the court held 

deference to the arbitrator’s decision was not required and the trial court should have 

 

4

Our review of the contract is substantially hampered by Morris’s failure to include 

a full copy of the contract and attachments in her Appellant’s Appendix, apparently by 

virtue of copying only one side of a document printed on both sides of each page. 
10

conducted a de novo review of the evidence to determine whether disgorgement of 

compensation for construction work was required by section 7031 because the work was 

performed by an unlicensed contractor: “[S]ection 7031 constitutes an ‘explicit 

legislative express of public policy,’ that if not enforced by an arbitrator, constitutes 

grounds for judicial review. ‘The purpose of the [CSLL] licensing law is to protect the 

public from incompetence and dishonesty in those who provide building and construction

services. . . . Section 7031 advances this purpose by withholding judicial aid from those 

who seek compensation for unlicensed contract work.’” (Ahdout, at p. 38.) 

Morris’s reliance on Ahdout is misplaced. There is a fundamental difference

between the attempt to recover compensation through judicial confirmation of an 

arbitration award for the unlicensed performance of contracting work, which the 

Legislature has absolutely prohibited in section 7031, subdivision (a), and a licensed 

contractor’s efforts to recover for his or her work notwithstanding the failure to comply 

with the disclosure requirements for a written home improvement contract, governed by 

sections 7150 et seq. and at issue in this case. As the Supreme Court held in Asdourian v. 

Araj (1985) 38 Cal.3d 276, the rule that a contract made in violation of a regulatory 

statute is unenforceable is not an inflexible one: “[T]he rule will not be applied where the 

penalties imposed by the Legislature exclude by implication the additional penalty of 

holding the contract void. [Citations.] Further, illegal contracts will be enforced to avoid 

unjust enrichment to the defendant at the expense of the plaintiff.” (Id. at p. 291.) 

Accordingly, even an oral contract for home improvements, not one that simply omits 

some of the required disclosures, may be enforced even though it violates section 7159: 

“Violation of section 7159 is a misdemeanor punishable by fine and/or imprisonment. 

Nothing in the statute declares that an oral contract entered into in contravention of 

section 7159 shall be void.” (Asdourian, at p. 291; see MW Erectors, Inc. v. 

Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412, 439 [“As the 

Asdourian majority noted, the statutes in question made violation of the writing 

requirement a misdemeanor, but they nowhere expressly declared that a noncomplying 
11

contract was void. . . . The agreements in question, the majority noted, were not 

‘“intrinsically illegal”’ (i.e., wrongful in their object) [citation]; thus, they were not 

automatically void, but merely voidable ‘depending on the factual context and the public 

policies involved.”].)

In Hinerfeld-Ward, Inc. v. Lipian (2010) 188 Cal.App.4th 86, Division Four of this 

court—the same division that decided Ahdout—applied Asdourian and upheld 

enforcement of an oral contract even though it violated the statutory requirement that

home improvement contracts be in writing. Affirming the trial court’s judgment, the 

appellate court reasoned the enforcement of an oral home improvement contract depends 

on an evaluation of the particular facts of the case including the relative sophistication of 

the homeowners or their representatives on the project and whether it would be unjust not 

to allow recovery for substantial work that had been performed. The court concluded, 

based on the evidence presented at trial, “this is a compelling case warranting 

enforcement of the oral home improvement contract under the Asdourian, supra, 

38 Cal.3d 276, line of authority.” (Hinerfeld-Ward, at pp. 94-95; see also Arya Group, 

Inc. v. Cher (2000) 77 Cal.App.4th 610, 615-616 [§ 7164, which was intended to extend 

the protections of § 7159 to consumers who contract to construct single-family residences

and which, like § 7159 requires those contracts to be in writing with specified notices and 

disclosures, did not bar enforcement of an oral contract for construction of a singlefamily residence; failure to enforce the oral contract would have unjustly enriched the 

owner because a substantial part of the work had been completed before the contractor 

was terminated].) 

Contrary to Morris’s contention, her home improvement contract with O’Neill, 

even if it failed to comply with all the requirements of sections 7159 and 7159.5, was not 

void or per se unenforceable. As demonstrated by the Hinerfeld-Ward and Arya Group,

decisions, the nature of the Asdourian inquiry—evaluating the significance of the 

regulatory violations involved and the relative equities of the homeowner’s and 

contractor’s situation— is precisely the type of fact-intensive question that the parties’ 
12

voluntary decision to arbitrate properly commits to the arbitrator. The public policy 

exception to the general rule that the merits of an arbitration award are not subject to 

review by the superior court is inapplicable here, and the superior court did not err in 

denying the petition to vacate the award on this ground. 

3. The Award Was Not Obtained by Fraud or Other Undue Means

Courts have “set forth a three-part test to be used to determine whether an 

arbitration award should be vacated for fraud. ‘First, the movant must establish the fraud 

by clear and convincing evidence. [Citations.] Second, the fraud must not have been 

discoverable upon the exercise of due diligence prior to or during the arbitration. 

[Citations.] Third, the person seeking to vacate the award must demonstrate that the 

fraud materially related to an issue in the arbitration.’” (Pour Le Bebe, Inc. v. Guess? 

Inc. (2003) 112 Cal.App.4th 810, 830.)

Morris’s fraud argument is predicated on her assertions that O’Neill submitted 

altered or forged documents (receipts for purchases) as exhibits during the arbitration 

proceeding and, because she was denied the opportunity to conduct any discovery prior to 

the arbitration hearing, she was unable to respond appropriately to the fabricated 

evidence. Morris further contends she only learned she would not be permitted any 

discovery after she had elected arbitration and, accordingly, could not have discovered

the purported fraud prior to or during the arbitration.

In support of her argument the arbitration award was obtained by O’Neill’s use of 

fraudulent exhibits, Morris asserted in her declaration, “Many providers have rules that 

create a nearly absolute right for the exchange of documents and witness lists . . . . 

However, when I requested subpoenas and document exchange from AMCC I was 

informed that no discovery was permitted whatsoever.” O’Neill’s objection to this 

statement as hearsay and lacking foundation was sustained by the superior court, and

Morris has not challenged that evidentiary ruling on appeal. Accordingly, that statement 

was not considered by the superior court and is not properly part of the record on appeal. 

(See Salas v. Department of Transportation (2011) 198 Cal.App.4th 1058, 1074 
13

[appellant’s failure to properly challenge the trial court’s many evidentiary rulings 

forfeits the issue on appeal]; Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480, 1492, 

fn. 14 [same].) Morris proffered no other evidence to support her claim she requested 

and was denied the opportunity to conduct discovery—in particular, she provided no 

material from AMCC discussing discovery rights and no correspondence with either 

AMCC or arbitrator Craigo in which she requested discovery from O’Neill, let alone any 

confirmation of her assertion that those requests were denied. In contrast, in his 

opposition to the petition, O’Neill declared Morris never contacted him to request any 

discovery during the four-to-six-week period between the selection of the arbitrator and 

the date of the arbitration hearing. “Had she contacted me directly she would have 

received all discovery requested.” 

In sum, even if Morris had established that O’Neill submitted falsified receipts or 

other fabricated evidence at the hearing, something we do not decide, she has failed to 

demonstrate the purported fraud could not have been discovered prior to or at the 

arbitration. Accordingly, there was insufficient evidence to justify vacating the 

arbitration award on this ground. (See Pour Le Bebe, Inc. v. Guess? Inc., supra, 

112 Cal.App.4th at p. 830.)

4. The Arbitrator Did Not Violate Any Applicable Disclosure Requirements 

a. The governing law

Since 1994 Code of Civil Procedure section 1281.9, part of the California 

Arbitration Act (Arbitration Act) (Code Civ. Proc., § 1280 et seq.),

5

has required a 

proposed neutral arbitrator to disclose various matters relating to his or her ability to be 

impartial, specifically including “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 . . . .” (Code Civ. Proc., § 1281.9, subd. (a); see Mahnke v. Superior Court

 

5

The Arbitration Act “‘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.’” (Haworth v. Superior Court, supra, 50 Cal.4th at p. 380.) 
14

(2009) 180 Cal.App.4th 565, 573-574.)

6

In 2002 the Legislature amended Code of Civil 

Procedure section 1281.9, subdivision (a)(1), to specifically require a proposed neutral 

arbitrator to disclose “whether or not he or she has a current arrangement concerning 

prospective employment or other compensated service as a dispute resolution neutral or is 

participating in, or, within the last two years, has participated in, discussions regarding 

such prospective employment or service with a party to the proceeding.”

Code of Civil Procedure section 1281.95, applicable to contractual arbitration of 

residential construction defect claims, similarly requires the arbitrator to disclose, among 

other matters, “whether the arbitrator or his or her employer or arbitration service had or 

has a personal or professional affiliation with either party.” (Code Civ. Proc., § 1281.95, 

 

6

As part of a revision of Code of Civil Procedure section 1281.9 in 2001, the 

Legislature added current subdivision (a)(2), which requires disclosure by proposed 

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

neutral arbitrators adopted by the Judicial Council” (Stats. 2001, ch. 362, § 5, pp. 3491-

3492) and, at the same time, enacted Code of Civil Procedure section 1281.85, which 

directed the Judicial Council to adopt ethical standards for all neutral arbitrators—

standards that were specifically to “address the disclosure of interests, relationships, or

affiliations that may constitute conflicts of interest, including prior service as an arbitrator 

or other dispute resolution neutral entity, disqualifications, acceptance of gifts, and 

establishment of future professional relationships.” (Stats. 2001, ch. 362, § 4, pp. 3490-

3491.) Now incorporated into the California Rules of Court, the Ethics Standards for 

Neutral Arbitrators in Contractual Arbitration (Ethics Standards) “establish the minimum 

standards of conduct for neutral arbitrators who are subject to these standards. They are 

intended to guide the conduct of arbitrators, to inform and protect participants in 

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

Std. 1(a).) 

Although Morris bases her contention that Craigo violated his disclosure 

obligations in substantial part by referring to provisions of the Ethics Standards, Standard 

3(b)(2)(G) provides the standards do not apply to an arbitrator serving in “[a]n arbitration 

of a complaint filed against a contractor with the [CSLB] under Business and Professions 

Code sections 7085 through 7085.7.” The April 2002 report to the Judicial Council that 

recommended the initial adoption of the Ethics Standards explained CSLB arbitrations 

were exempted because sections 7085 through 7085.7 appeared to establish a statutory 

arbitration program that was separate and distinct from arbitration under the Arbitration 

Act. 
15

subd. (a).) And section 7085.5, subdivision (c), which provides rules of conduct for 

CSLB-referred arbitrations, as here, states, “No person shall serve as an arbitrator in any 

arbitration in which that person has any financial or personal interest in the result of the 

arbitration.” (See also Mahnke v. Superior Court, supra, 180 Cal.App.4th at pp. 579-580

[even in the absence of a statutory disclosure requirement, arbitrator must disclose 

whether a substantial past or present business relationship exists with a party, counsel or 

witness].)

Under the Arbitration Act the parties have an opportunity to disqualify the 

proposed neutral arbitrator based on the disclosures made. (Code Civ. Proc., §§ 1281.91, 

subds. (b)(1), (d), 1281.95, subd. (b); see Haworth v. Superior Court, supra, 50 Cal.4th at 

p. 381.)

7

 In addition, a proposed neutral arbitrator must be disqualified if he or she fails 

to comply with the Code of Civil Procedure section 1281.9 disclosure requirements. 

(Code Civ. Proc., § 1281.91, subd. (a).) “If an arbitrator ‘failed to disclose within the 

time required for disclosure a ground for disqualification of which the arbitrator was then 

aware,’ the trial court must vacate the arbitration award. ([Code Civ. Proc.,] § 1286.2, 

subd. (a)(6)(A).)” (Haworth, at p. 381; accord, Gray v. Chiu, supra, 212 Cal.App.4th at 

p. 1366; International Alliance of Theatrical Stage Employees, etc. v. Laughon (2004) 

118 Cal.App.4th 1380, 1393.) 

b. The arbitrator did not fail to disclose any conflict of interest due to his past 

relationship to CNA 

In her declaration in support of the petition to vacate the arbitration award, Morris 

stated she learned after the arbitration that the arbitrator “failed to disclose a conflict of 

interest that would lead a consumer to subjectively believe the arbitrator was biased 

because he has his own arbitration company Craigo ADR, Inc., and one of his web pages 

is directly electronically linked to CNA, the insurance company that furnishes [O’Neill]

 

7

Unlike mandatory disqualification under the Arbitration Act (Code of Civ. Proc., 

§ 1281.9, subds. (b)(1), (d)), CSLB arbitration rules provide that the CSLB or appointed 

arbitration association “shall determine whether the arbitrator should be disqualified and 

shall inform the parties of its decision, which shall be conclusive.” (§ 7085.5, subd. (c).) 
16

with his construction bond and a probable source of business for the arbitrator who used 

to work as a claims adjuster for CNA.” In the petition itself, but not her sworn 

declaration, Morris identified the web page to which she referred as part of the social 

networking site LinkedIn and asserted, “On his site at LinkedIn, the arbitrator boldly

displays the CNA logo next to his name. Clicking onto the logo links the person to the 

CNA Insurance website.” She then contended Craigo had an “expectation of receiving 

referral business for arbitration from insurance carriers, including CNA who provides 

contractors’ bonds” and argued such an expectation “strongly adversely impacts his 

ability to maintain impartiality as an arbitrator because he would necessarily favor the 

industry to insure repeat business from that industry.”

In his opposition papers O’Neill explained Morris had access prior to selection of 

the arbitrator to Craigo’s resume, which reflected that he had not had any connection with 

CNA for a period of 14 years. Craigo’s one-page resume was attached as an exhibit to 

O’Neill’s papers and disclosed Craigo had worked for CNA Insurance Companies from 

1994 to 2000 as a “Negotiator/Claims Consultant.” The resume also indicated Craigo 

had worked for American States Insurance Company in various claims capacities from 

1980 through 1994 and described himself as a “claims professional.” In her reply 

declaration Morris confirmed she had received the resume prior to Craigo’s selection by 

the parties. O’Neill also declared, “[T]he arbitrator did not have knowledge as to the fact 

CNA was the company insuring my bond.” Morris replied that she had mentioned 

CNA’s status during the arbitration proceedings.

CNA was not a party, counsel or witness in this proceeding. Indeed, Morris, like 

all parties considering voluntary arbitration through a CSLB referral, was expressly 

advised in the information packet she received that Civil Code Section 2855 “may 

preclude a consumer from collecting the amount of an Award from the proceeds of a 
17

contractor’s bond.”

8

 Be that as it may, unquestionably the arbitrator disclosed both his 

past employment relationship with CNA and his extensive professional history as a 

claims professional with the insurance industry. No competent evidence was presented in 

the superior court that Craigo had any current or ongoing professional relationship with 

CNA or that he had engaged in discussions regarding prospective employment or service 

as a dispute resolution neutral with CNA or any other insurance company that required 

disclosure. Morris’s unsworn speculation regarding the CNA icon or logo next to 

Craigo’s listing of his employment history on a LinkedIn page is an entirely inadequate 

basis upon which to vacate the arbitration award.

9

 

Morris also argues CSLB failed to inform her that AMCC does not make 

disclosures required by Code of Civil Procedure section 1281.96 for private arbitration 

companies administering consumer arbitrations, including detailed information about past 

awards. She maintains such disclosures would have demonstrated a marked procontractor bias, which manifested itself in the manner in which Craigo conducted the 

arbitration here. In her declaration in support of the petition to vacate, Morris asserted 

that AMCC did not publish its arbitration results but supported that claim only by 

reference to the information sheet AMCC had provided her in connection with the CSLB 

arbitration program. O’Neill objected to this portion of Morris’s declaration for lack of 

foundation. That objection was sustained, and Morris does not challenge the evidentiary 

ruling on appeal. Thus, there is no factual basis for Morris’s argument on this point. 

Moreover, although Code of Civil Procedure section 1286.2, subdivision (a)(6), requires 

the superior court to vacate an arbitration award if the arbitrator failed to disclose a 

ground for his or her disqualification, nothing in that provision or Code of Civil 

 

8

Civil Code section 2855 provides, “An arbitration award rendered against a 

principal alone shall not be, be deemed to be, or be utilized as, an award against his 

surety.”

9

Morris provided no evidence that Craigo had actually authorized inclusion of the

icon or a hyperlink to CNA’s website on his LinkedIn page. It is at least as likely the 

placement of those items was done automatically by the social networking site itself.
18

Procedure section 1281.96 itself authorizes vacation of an otherwise proper arbitration 

award based on a provider’s nondisclosure of consumer arbitration information. 

5. Morris’s Consent To Arbitration Was Informed and Voluntary 

Morris contends her consent to arbitration was not informed because it was given 

without knowledge she would not be entitled to discovery and without awareness of the 

arbitrator’s potential conflict of interest or bias. As discussed above, there is no 

evidentiary support for the claim Morris was denied the right to conduct discovery, and 

her claim the arbitrator failed to make required disclosures lacks merit. Morris’s 

challenge to the validity of her consent to arbitrate on these grounds, like her challenge to 

the arbitration award itself, was properly rejected by the trial court.

6. The Arbitrator Did Not Exceed His Authority in Making an Affirmative Award 

to O’Neill Based on the Contract Price

Morris’s final argument is that the arbitrator exceeded his authority in using the 

full contract price as a basis to offset the damages proved by Morris and to affirmatively 

award O’Neill $1,707.11. She contends the only issue before the arbitrator was whether 

O’Neill was responsible for various construction defects and insists she did not agree to 

arbitrate the question whether she had breached the contract. 

An arbitrator exceeds his or her power by deciding an issue that was not submitted 

to arbitration. (See Kelly Sutherlin McLeod Architecture, Inc. v. Schneickert (2011) 

194 Cal.App.4th 519, 531; Jordan v. Department of Motor Vehicles (2002) 

100 Cal.App.4th 431, 443.) However, in determining whether the arbitrators exceeded 

their powers within the meaning of the Code of Civil Procedure section 1286.2, 

subdivision (a)(4), courts must give “substantial deference to the arbitrators’ own 

assessments of their contractual authority . . . .” (Advanced Micro Devices, Inc. v. Intel 

Corp., supra, 9 Cal.4th at p. 373.) A deferential standard is in keeping with the general 

rule of arbitral finality and ensures that judicial intervention in the process is minimized. 

(Ibid. [“[a] rule of judicial review under which courts would independently redetermine 

the scope of an arbitration agreement already interpreted by the arbitrator would invite 
19

frequent and protracted judicial proceedings, contravening the parties’ expectations of 

finality”].)

On Attachment A to her submission to voluntary arbitration form, Morris 

identified as among the issues she was agreeing to arbitrate, “O’Neill Construction failed 

to complete the project within the time period promised and abandoned the project before 

completion.” She sought an award of $50,000, the maximum permitted in a CSLB 

voluntary arbitration. O’Neill in submitting his own form was deemed to have denied 

Morris’s allegations, including that he had breached the contract and had abandoned the 

project. O’Neill expressly sought $30,000 in damages, essentially the full amount 

remaining on the contract price. 

The issue whether there had been a breach of the home improvement contract was 

plainly before the arbitrator: That was the essence of Morris’s claims, not simply 

O’Neill’s counterclaim. Once Morris agreed to submit to the arbitrator the questions of 

O’Neill’s contractual performance, she necessarily submitted the question of what, if any 

remedy was appropriate based on the liability findings. The remedy selected by the 

arbitrator, not only offset but also a modest affirmative award to O’Neill, bears a rational 

relationship to the issues properly before the arbitrator and thus was within the scope of 

his authority. (See Advanced Micro Devices, Inc. v. Intel Corp., supra, 9 Cal.4th at

p. 367 [“in the absence of more specific restrictions in the arbitration agreement, the 

submission or the rules of arbitration, the remedy an arbitrator fashions does not exceed 

his or her powers if it bears a rational relationship to the underlying contract as 

interpreted, expressly or impliedly, by the arbitrator and to the breach of contract found, 

expressly or impliedly, by the arbitrator”].)

To the extent Morris contends the arbitrator undervalued the claims she proved 

regarding O’Neill’s poor performance or unfairly calculated O’Neill’s entitlement for 

unpaid invoices to include profit on work he did not complete, those are questions of fact 

and law resolved by the arbitrator and, whether or not in error, are not properly subject to 
20

judicial review. (See Cable Connection, Inc. v. DIRECTV, Inc., supra, 44 Cal.4th at

p. 1340; Moncharsh, supra, 3 Cal.4th at p. 10.)

DISPOSITION

The order denying the petition to vacate the arbitration award is affirmed. 

Because O’Neill did not participate in the appeal, no costs are awarded. 

PERLUSS, P. J.

We concur: 

ZELON, J.

IWASAKI, J.*

 

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.