Filed 9/12/14 Lawyers’ Mutual Ins. Co. v. Law Offices of Diana Courteau CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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 FIVE

LAWYERS’ MUTUAL INSURANCE 

COMPANY,

Plaintiff and Respondent,

v.

LAW OFFICES OF DIANA COURTEAU 

et al.,

Defendants and Appellants.

 B250158

 (Los Angeles County

 Super. Ct. No. BS133945)

APPEAL from a judgment of the Superior Court of Los Angeles County, Michelle 

R. Rosenblatt, Judge. Affirmed. 

Courteau & Associates and Diana L. Courteau for Defendants and Appellants.

Musick, Peeler & Garrett, Wayne B. Littlefield, Lynn A. O’Leary and Cheryl A. 

Orr for Plaintiff and Respondent.
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I. INTRODUCTION

Defendants, Law Offices of Diana Courteau doing business as Courteau & 

Associates, and Diana L. Courteau, appeal from a June 18, 2013 judgment. The 

judgment was entered after the trial court granted the petition to confirm an arbitration 

award filed by plaintiff, Lawyers’ Mutual Insurance Company. The trial court also

denied defendants’ petition to vacate the award. Defendants argue the arbitration award 

should be vacated pursuant to Code of Civil Procedure1sections 1281.9, subdivision (a) 

and 1286.2, subdivision (a)(6). Defendants assert the neutral arbitrator failed to disclose 

a relationship with plaintiff’s retired general counsel. They were members of 13 

specialty panels of Alternative Resolution Centers, the alternative dispute resolution 

provider. Defendants also contend the arbitration award should be vacated pursuant to 

section 1286.2, subdivision (a)(5). Defendants argue their rights were substantially

prejudiced by the refusal to continue the arbitration hearing. We affirm the judgment. 

II. BACKGROUND

A. Dispute Between The Parties

The following recitation of background matters are drawn from the petition and 

arbitration award. On June 1, 2010, plaintiff issued a professional liability insurance 

policy to defendants for the period June 3, 2010, to June 3, 2011. The policy’s limits of 

liability were $250,000 for each claim and $750,000 in the aggregate, inclusive of claim 

expenses after exhaustion of a $50,000 aggregate claim expense allowance. On July 26, 

2010, defendants notified plaintiff in writing of a potential legal malpractice lawsuit by a

former client, AAA Flag & Banner Manufacturing Company, Inc. (AAA Flag). On July 

30, 2010, plaintiff’s claims examiner, Birgit Sale, discussed the claim with Ms. Courteau. 

 

1

Further statutory references are to the Code of Civil Procedure unless otherwise 

indicated.
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Ms. Sale sent a letter to Ms. Courteau stating the insurer had opened a claim file and 

noting the policy limit was $250,000 per claim. On December 6, 2010, defendants 

submitted an application to plaintiff seeking to increase the policy limits to $1 million per 

claim and $3 million in the aggregate. On December 15, 2010, plaintiff issued amended 

policy declarations with the increased policy limits. The amendment effective date was 

December 15, 2010. 

On February 11, 2011, after the policy with the increased policy limits was issued, 

Ms. Courteau informed plaintiff that AAA Flag had filed a malpractice lawsuit. On July 

29, 2011, Ms. Courteau sent plaintiff the complaint filed on January 28, 2011, in AAA

Flag & Banner Mfg. Co., Inc. v. Courteau, Los Angeles County Superior Court case 

No. BC454049. In a March 3, 2011 letter to defendants, plaintiff agreed to provide a 

defense, without reservation of rights, subject to a policy limit of $250,000 for the legal 

malpractice claim. In an April 5, 2011 letter to plaintiff, defendants asserted the $1

million policy limit should apply to the malpractice claim. Defendants contended the 

policy limits had been increased prior to the filing of the malpractice lawsuit. The 

foregoing statement of facts is necessarily incomplete because defendants failed to 

provide all of the exhibits attached to the petitions to compel arbitration and vacate the 

award. 

B. Nomination Of Arbitrators

On May 20, 2011, defendants demanded arbitration of the coverage issue. The 

demand was made pursuant to the arbitration clause in the professional liability insurance 

policy. The arbitration agreement provides for three arbitrators. Each party would name 

a party arbitrator in writing within 10 days. The party arbitrators in turn would select the 

third neutral arbitrator. On June 2, 2011, plaintiff designated Andrew Waxler as its party 

arbitrator. On July 13, 2011, defendants selected Cynthia Bozzone as their party 

arbitrator. The party arbitrators could not agree on the selection of the neutral arbitrator. 
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On September 29, 2011, plaintiff filed a petition to have the trial court nominate 

the neutral arbitrator pursuant to section 1281.6. On December 8, 2011, plaintiff’s 

petition was granted. The parties were ordered to submit a list of up to five candidates, 

along with a description of their prior and existing relationship with each proposed 

arbitrator. Then at a hearing, the trial court would designate five nominees to serve as the 

third arbitrator from the lists submitted by the parties. If the parties could not agree on 

the third arbitrator, the trial court would hold another hearing to select one of the five 

nominees as the neutral arbitrator. 

Defendants submitted a list of five proposed arbitrators to the trial court. 

Defendants proposed Retired Court of Appeal Associate Justice Daniel A. Curry as the 

first of five candidates. Plaintiff proposed five other candidates but did not propose 

Retired Justice Curry. Defendants objected to all of plaintiff’s candidates including 

Retired Court of Appeal Justice John Zebrowski and Superior Court Judge Robert W. 

Thomas. Defendants objected even though they also had proposed Retired Justice 

Zebrowski and Judge Thomas. The trial court nominated four of the five candidates 

proposed by defendants, including Retired Justice Curry. Defendants objected to four of 

the five proposed arbitrators. They stated they did not have a “firm objection” to Retired 

Justice Curry. At a January 20, 2012 hearing, the trial court designated Retired Justice 

Curry as the neutral arbitrator. 

C. Arbitration

On January 11, 2013, defendants filed a motion seeking to rescind the appointment 

of the arbitrators and to stay the arbitration. Defendants challenged the arbitration 

panel’s decision to: curtail written discovery; limit defendants to one deposition; and 

preclude defendants from calling any witnesses at the January 25, 2013 arbitration 

hearing. 

On January 25, 2013, the arbitration hearing proceeded before Retired Justice 

Curry and plaintiff’s party arbitrator, Mr. Waxler, which was permitted under the 
5

arbitration agreement. Defendants and their party arbitrator, Ms. Bozzone, did not attend 

the arbitration hearing. Defendants also did not submit an arbitration brief. 

On February 4, 2013, after the arbitration hearing was concluded, Ms. Bozzone, 

defendants’ arbitrator, sent the following e-mail to Retired Justice Curry: “I 

unequivocally informed the [Alternative Resolution Centers] ‘confirmation’ secretary 

that I would be unable to appear, regardless of Ms. Courteau’s pending motion, because 

my mother was in ICU (in fact, I was standing in the ICU when I took her call that 

morning) - it’s a pity that she apparently failed to communicate anything to anyone. 

However, I believe it was reasonable of me to presume that such information would have 

been passed on to you, and that my communication with the [Alternative Resolution 

Centers’] secretary reaffirmed my earlier [e-mail] to you advising that she was in the 

hospital.” Retired Justice Curry responded on February 4, 2013, to Ms. Bozzone’s email: “I will not agree that we were informed before the Arbitration hearing that 

[M]s. Bozzone was not appearing because she was unable to appear. [¶] She and 

[M]s. Courteau decl[i]ned to appear. Neither requested a continuance. [¶] Ms. Courteau

did not file an Arbitration brief. They practice law out of the same office.” 

On February 19, 2013, the arbitration panel issued its findings and award. The 

arbitration award found in favor of plaintiff, “The Arbitration Panel finds that [plaintiff’s] 

coverage obligation under the Policy with respect to the Malpractice Lawsuit is limited to 

$250,000, inclusive of Claim Expenses after exhaustion of the $50,000 aggregate Claim 

Expense Allowance.” Plaintiff was awarded arbitration costs of $13,410. 

Ms. Bozzone, who did not attend the arbitration hearing, dissented from the award. 

Ms. Bozzone’s dissent states in part: “I dissent from both the hearing going forward 

without my participation and that of Ms. Courteau, and from the outcome set forth in the 

proposed Final Award. [¶] The panel was made aware prior to the January 25 hearing 

that I would not be in attendance at the hearing because there was pending before the 

Superior Court a motion brought by Courteau concerning the scope of the arbitration 

hearing and requesting a stay. Further, on or about the morning of January 23 I made 

[Alternative Resolution Centers] aware (through its confirmation secretary) that I could 
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not attend the January 25 arbitration hearing for the additional reason that my elderly 

mother was in ICU. The panel received copies of Courteau’s aforementioned motion 

well before the January 25 hearing.” 

D. Parties’ Petitions

On April 2, 2013, plaintiff filed a petition to confirm the arbitration award. On 

April 24, 2013, defendants filed their petition to vacate the arbitration award and 

opposition to plaintiff’s petition to confirm. Defendants argued the arbitration award 

must be vacated under sections 1286.2, subdivision (a) and 1281.9, subdivision (a). The 

basis of defendants’ position was that Retired Justice Curry failed to disclose a

relationship with Jerold S. Sherman. Both Retired Justice Curry and Mr. Sherman are 

arbitrators affiliated with Alternative Resolution Centers and are listed together on 13 

specialty panels. Mr. Sherman was plaintiff’s senior vice-president and general counsel 

for 12 years before retiring in 2005. In addition, plaintiff’s attorney, Wayne B. 

Littlefield, endorsed Mr. Sherman on a Web site profile maintained by Alternative 

Resolution Centers. Ms. Courteau states in her declaration: “I would never have 

accepted that the arbitration have taken place with Curry, at [Alternative Resolution 

Centers], where [plaintiff’s] past Senior Vice President/General Counsel, Jerold Sherman, 

was present, working for [Alternative Resolution Centers], and interacting with other 

members at [Alternative Resolution Centers]. I absolutely believe Curry should have 

disclosed to Courteau, Curry’s professional/personal relationship with Sherman. Curry 

and [Alternative Resolution Centers] must have known that disclosing Sherman would 

have caused Courteau to have reasonable doubts as to the impartiality of Curry, 

especially where Curry shared 13 Specialty Panels with Sherman.” 

Defendants also contended the arbitration award should be vacated under section 

1286.2, subdivision (a)(5). Defendants argued their rights were substantially prejudiced 

by Retired Justice Curry’s refusal to postpone the arbitration hearing. Defendants 

asserted three days before the January 25 hearing, Ms. Bozzone informed Retired Justice 
7

Curry and Mr. Waxler that her mother was in a hospital in the intensive care unit. 

Ms. Bozzone’s declaration states: “My 88-year-old mother was a patient in the ICU of 

Little Company of Mary Hospital between January 20 and January 25, 2013. I apprised 

my co-arbitrators of this fact by [e-mail] on January 22, 2013. On or about January 23, 

2013, while I was present in the ICU, I was called by an [Alternative Resolution Centers]

receptionist to confirm my attendance at the January 25, 2013 arbitration. I specifically 

told the [Alternative Resolution Centers] individual who called me from [Alternative 

Resolution Centers] that my mother was in the hospital’s ICU and that I would be unable 

to attend the January 25 arbitration. Because I am an only child and my mother’s only 

living relative, it was imperative that I be present and available at the hospital during this 

period.” 

On May 14, 2013, plaintiff filed an opposition to defendants’ petition to vacate 

and reply brief in support of its petition to confirm the arbitration award. Plaintiff argued 

Retired Justice Curry made all appropriate disclosures and there was no basis for 

defendants’ suggestion he was biased against them. In addition, plaintiff argued 

defendants and Ms. Bozzone never requested a continuance of the arbitration hearing. 

Ms. Bozzone’s January 22, 2013 e-mail to Retired Justice Curry and Mr. Waxler states: 

“Ms. Courteau has a motion pending before the Superior Court, a copy of which you 

should both have received. I believe it would [be] entirely inappropriate to proceed with 

the arbitration hearing in Ms. Courteau’s absence; moreover, as a party arbitrator retained 

by Ms. Courteau, it would be inappropriate for me to appear at the January 25 hearing. I 

do not believe Ms. Courteau intends to appear on January 25 due to the pending motion. 

However, you may wish to confirm this. [¶] I should have communicated this position 

by this weekend, and I am sorry for the delay, but my mother has been in ICU at Little 

Company of Mary since Saturday Night and my mind has been elsewhere.” 

As part of the opposition to the petition to vacate, plaintiff submitted the January 

20, 2012 disclosure letter from Alternative Resolution Centers on behalf of Retired 

Justice Curry. The disclosure letter disclosed one prior matter each with plaintiff and 

defendants. Additionally, the disclosure letter states: “[Alternative Resolution Centers]
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is additionally requesting the judge to search his/her records to ascertain whether the 

attorneys or parties have compensated the judge directly during the past sixty months in 

any matter heard outside this office or in an independent forum. [Alternative Resolution 

Centers] is further asking said judge to forward any supplemental disclosures to your 

offices. [¶] To further comply with [Code of Civil Procedure] section 1281.85 as 

adopted by the Judicial Council of California and effective as of July 1, 2002 [Alternative

Resolution Centers] makes the following disclosure: If selected as a neutral arbitrator [,] 

the Arbitrator selected in the instance matter will entertain and accept offers of permitted 

employment or new professional relationships from parties, attorneys, or law firms 

involved in a case while this case is pending. [¶] [Alternative Resolution Centers] will 

endeavor to inquire of all neutrals if there are relationships with any of the attorneys, 

parties or carriers, etc. that would impair their ability to decide the matter in a completely 

fair and impartial way. [Alternative Resolution Centers] is additionally requesting all 

attorneys to the instant action advise this office if there are any disclosures they feel 

might affect the impartiality of the neutral.” 

Plaintiff also submitted the declaration of Retired Justice Curry in opposition to 

defendants’ petition to vacate the arbitration award. Retired Justice Curry states: “I have 

never met and do not know Jerold Sherman, Esq. Prior to Ms. Courteau mentioning 

Mr. Sherman’s name, I was unaware Mr. Sherman was affiliated with [Alternative 

Resolution Centers] or that Mr. Sherman had served as the general counsel of [plaintiff]. 

Such information would not have been [] relevant to my role as the third neutral arbitrator 

in the coverage arbitration between [plaintiff] and Ms. Courteau, and would not have 

impacted my impartiality. [¶] I have no interest in and derive no financial benefit from 

any matter handled by Mr. Sherman, and Mr. Sherman has no interest in and derives no 

financial benefit from any matter handled by me. I have no ownership or financial 

interest in [Alternative Resolution Centers]. [¶] Per [Alternative Resolution Centers’] 

regular practice, the disclosures made at the inception of the arbitration stated that I 

would entertain and accept offers of continued employment from the parties or their 

counsel. While the arbitration was pending, I was retained as mediator in one matter in 
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which Ms. Courteau was counsel and two matters in which Musick, Peeler & Garrett was 

counsel. [¶] Neither Ms. Courteau nor her appointed party arbitrator, Cynthia Bozzone, 

requested a postponement of the Arbitration scheduled for January 25, 2013 due to 

Ms. Bozzone’s mother’s illness. Ms. Bozzone mentioned that her mother had been in the 

hospital only after she and Ms. Courteau had indicated that they did not plan to attend the 

Arbitration.” 

E. Trial Court Ruling

On May 24, 2013, the trial court granted plaintiff’s petition to confirm and denied 

defendants’ petition to vacate the arbitration award. The trial court adopted its lengthy

tentative ruling as the final order after oral argument. The trial court rejected defendants’ 

argument that the arbitration award should be vacated because Retired Justice Curry 

failed to disclose an alleged significant personal and professional relationship with 

Mr. Sherman. The trial court found defendants presented no evidence that Retired Justice 

Curry had a personal relationship with Mr. Sherman. The trial court ruled Retired Justice 

Curry was not required to disclose that Alternative Resolution Centers employed 

someone who was previously an employee of plaintiff. The trial court ruled: “[T]he 

facts are that Sherman and [Retired Justice Curry] work at [Alternative Resolution 

Centers] and are on some of the same specialty panels. There is no evidence that [Retired 

Justice Curry] had any type of a relationship with Sherman either when Sherman worked 

for [plaintiff] or since he has been at [Alternative Resolution Centers]. There is no 

evidence that [Retired Justice Curry] knew Sherman. There is no evidence that even if he 

knew Sherman in a professional capacity that he would know he was formerly with 

[plaintiff] or that he had a relationship of some sort with Littlefield, an attorney at 

Musick, Peeler (but not the attorney at the Arbitration.)” 

In addition, the trial court denied defendants’ petition to vacate the arbitration 

award under section 1286.2, subdivision (a)(5). The trial court found defendants and 

their party arbitrator never requested a continuance of the arbitration hearing. The trial 
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court stated: “A later claim that the failure to attend is due to Bozzone’s family 

emergency is disingenuous. The Court does not question the fact that Bozzone had a 

family emergency for which a reasonable continuance could have been granted had that 

request been made. However, there was no reason for the neutral to postpone the 

arbitration without a request from Bozzone following the January 22 [e-mail] in which 

Bozzone stated that she would not be attending due to Courteau not attending. Despite a 

discrepancy in the evidence whether Bozzone spoke to a secretary the day before the 

arbitration, there is no evidence whatsoever that Bozzone or Courteau requested from 

[Retired Justice Curry] a continuance of the arbitration. Given that the arbitration 

provision of the policy signed by the parties reflects that a decision and award could be 

rendered by two of the three arbitrators, the decision of Courteau’s party arbitrator not to 

[formally] request a postponement and the decision of Courteau herself not to attend the 

arbitration and not to request a postponement was risky. Nevertheless it was the risk that 

Courteau took. The Court finds that this is not a situation in which the party arbitrator 

sought a postponement of the arbitration due to her family emergency, which would have 

warranted a postponement. Instead, it was a decision akin to a boycott of the 

proceedings.” 

III. DISCUSSION

A. Arbitrator’s Disclosure Obligations

Section 1286.2, subdivision (a)(6) states: “Subject to Section 1286.4, the court 

shall vacate the award if the court determines any of the following: . . . [¶] (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. . . .” Section 1281.9, subdivision (a) provides, “In any arbitration pursuant to 

an arbitration agreement, when a person is to serve as a neutral arbitrator, the proposed 
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neutral arbitrator shall 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 . . . .” 

In Haworth v. Superior Court (2010) 50 Cal.4th 372, 381 (Haworth), our Supreme 

Court explained: “The applicable statute and standards enumerate specific matters that 

must be disclosed. The arbitrator must disclose specified relationships between the 

arbitrator and the parties to the arbitration, including involvement in prior arbitrations, an 

attorney-client relationship with any [party or] attorney involved in the arbitration, and 

any significant personal or professional relationship with a party or an attorney involved 

in the arbitration. (§ 1281.9, subd. (a)(3)-(6).) The arbitrator also must disclose ‘any 

ground specified in Section 170.1 for disqualification of a judge,’ as well as ‘matters 

required to be disclosed by the ethics standards for neutral arbitrators adopted by the 

Judicial Council.’ (§ 1281.9, subd. (a)(1)-(2); see Cal. Rules of Court, Ethics Stds. for 

Neutral Arbitrators in Contractual Arbitration (Ethics Standards).) The Ethics Standards 

require the disclosure of ‘specific interests, relationships, or affiliations’ and other 

‘common matters that could cause a person aware of the facts to reasonably entertain a 

doubt that the arbitrator would be able to be impartial.’ (Ethics Stds., com. to std. 7.) 

Specific matters that must be discloses include, for example, the arbitrator’s financial 

interest in a party or the subject of the arbitration, the arbitrator’s knowledge of disputed 

facts relevant to the arbitration, and the arbitrator’s ‘membership in any organization that 

practices invidious discrimination on the basis of race, sex, religion, national origin, or 

sexual orientation.’ (Ethics Stds., std. 7(d)(13); see id., std. 7(d)(9), (10), (12).)” 

(Accord, Nemecek & Cole v. Horn (2012) 208 Cal.App.4th 641, 646 (Nemecek).) 

The disclosure requirements are intended only to ensure the arbitrator’s 

impartiality. (Haworth, supra, 50 Cal.4th at p. 393; Nemecek, supra, 208 Cal.App.4th at 

p. 646.) Our Supreme Court stated, “They are not intended to mandate disclosure of all 

matters a party might wish to consider in deciding whether to oppose or accept the 

selection of an arbitrator.” (Haworth, supra, 50 Cal.4th at p. 393; Nemecek, supra, 208 

Cal.App.4th at p. 646.) An arbitrator’s alleged failure to disclose is a mixed question of 
12

law and fact that is subject to de novo review. (Haworth, supra, 50 Cal.4th at pp. 384-

386; Mt. Holyoke Homes, L.P. v. Jeffer Mangels Butler & Mitchell, LLP (2013) 219 

Cal.App.4th 1299, 1312.)

Defendants contend the trial court erred by not vacating the arbitration award 

under section 1286.2, subdivision (a)(6). Defendants argue: under section 1281.9, 

subdivision (a), Alternative Resolution Centers should have disclosed that it employed 

Mr. Sherman, plaintiff’s retired senior vice-president and general counsel; Mr. Sherman

shared 13 specialty panels with Retired Justice Curry; Mr. Littlefield, plaintiff’s coverage 

counsel, knew Mr. Sherman; this occurred when Mr. Sherman was the plaintiff’s general 

counsel; Mr. Littlefield is directly involved in the arbitration proceedings; and Mr. 

Littlefield endorsed Mr. Sherman in Alternative Resolution Centers’ promotional 

materials. 

Relying on Gray v. Chui (2013) 212 Cal.App.4th 1355, 1362-1363 (Gray), 

defendants argue Alternative Resolution Centers and Retired Justice Curry were required 

to disclose their relationship with Mr. Sherman. In addition, defendants argue, 

Alternative Resolution Centers and Retired Justice Curry should have disclosed 

Mr. Sherman’s relationship with Mr. Littlefield. Before explaining why defendants’ 

arguments are without merit, we set forth the facts in Gray in some detail.

In Gray, the late William Ginsburg, counsel for a doctor, affiliated with a dispute 

resolution provider organization, ADR Services, Inc. Mr. Ginsburg continued to 

represent the doctor throughout all of the arbitration proceedings conducted before ADR 

Services, Inc. Mr. Ginsburg affiliated with ADR Services, Inc. after arbitration 

proceedings commenced against the doctor but before the arbitration hearing. (Gray, 

supra, 212 Cal.App.4th at pp. 1360-1361.) Mr. Ginsburg began providing arbitration 

services through ADR Services, Inc. in March 2010 but, as noted, continued to serve as 

counsel for the doctor in the arbitration matter. (Id., at pp. 1359-1360.) The neutral 

arbitrator, Retired Judge Alan Haber, was affiliated with ADR Services, Inc., which 

provided arbitration services to the parties. (Ibid.) In January and April 2010, Retired 

Judge Haber sent the parties disclosure statements indicating he had no significant 
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personal or professional relationship with any of the parties or litigants. (Id. at p. 1360.) 

In February 2011, Retired Judge Haber issued a binding arbitration award for defendants. 

(Ibid.) Plaintiff filed a petition to vacate the arbitration award based on Retired Judge 

Haber’s failure to disclose that Mr. Ginsburg was an employee of ADR Services, Inc. 

(Ibid.) 

Retired Judge Haber submitted a declaration which denied the existence of any

social relationship with Mr. Ginsburg. (Gray, supra, 212 Cal.App.4th at p. 1361.) 

Retired Judge Haber learned Mr. Ginsburg would be working with ADR Services, Inc. in 

the middle of 2010. (Ibid.) At one point in the opinion, the Court of Appeal described 

the interactions between Retired Judge Haber and Mr. Ginsburg: “Judge Haber 

occasionally saw Ginsburg at the Century City office of ADR, when they exchanged 

greetings, with little or no conversation. On one occasion before the arbitration, 

Ginsburg told Judge Haber that he would ‘participate with Doctor Chiu’ in the 

arbitration. Judge Haber ‘made certain that [he did] not discuss any matters involving the 

Gray’ case with Ginsburg.” (Id. at p. 1361.)

The Court of Appeal held the arbitration award should have been vacated based on 

Retired Judge Haber’s failure to disclose Mr. Ginsburg’s ADR, Services, Inc.

membership. (Gray, supra, 212 Cal.App.4th at pp. 1365-1366.) The Court of Appeal

held Retired Judge Haber did not comply with Standard 8 of the Ethics Standards for 

Neutral Arbitrators in Contractual Arbitration (Ethics Standard). The Court of Appeal 

held under Ethics Standard 8, Retired Judge Haber was required to disclose that 

Mr. Ginsburg, a lawyer representing a party in the arbitration, was a member of ADR

Services, Inc. (Id. at p. 1364.) 

Gray is distinguishable from the present case. In Gray, the Court of Appeal held 

Retired Judge Haber failed to comply with Ethics Standard 8. Ethics Standard 8, 

subdivision (b)(1)(A) provides in relevant part: “‘[I]n a consumer arbitration . . . in 

which a [dispute resolution provider organization] is coordinating, administering, or 

providing the arbitration services, a person who is nominated or appointed as an 

arbitrator . . . must disclose . . . : [¶] (1) Relationships between the [dispute resolution 
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provider organization] and party or lawyer in the arbitration [¶] Any 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. Information that must be disclosed under this standard includes: [¶] (A) A 

party, a lawyer in the arbitration, or a law firm in which a lawyer in the arbitration is 

currently associated is a member of the [dispute resolution provider organization].” 

(Gray, supra, 212 Cal.App.4th at p. 1363.) 

Nothing in section 1281.9, subdivision (a) or the Ethics Standards required Retired 

Justice Curry in 2012 and 2013 to disclose that Mr. Sherman is an arbitrator affiliated 

with Alternative Resolution Centers. Mr. Sherman stopped working for plaintiff in 2005. 

Mr. Sherman is not a party or lawyer involved in the arbitration. Mr. Sherman is 

endorsed by plaintiff’s coverage counsel, Mr. Littlefield. However, there is no evidence 

Mr. Sherman, who had not worked for plaintiff since 2005, had any involvement in the 

arbitration proceedings. It is undisputed Retired Justice Curry, the neutral arbitrator, 

never knew or had even met Mr. Sherman. Retired Justice Curry was unaware 

Mr. Sherman was affiliated with Alternative Resolution Centers. Retired Justice Curry 

had no knowledge Mr. Sherman had served as plaintiff’s general counsel. This issue was 

first brought to Retired Justice Curry’s attention during the enforcement proceedings in 

the trial court. Retired Justice Curry had no ownership or financial interest in Alternative 

Resolution Centers and derived no financial benefit from any matter handled by 

Mr. Sherman. 

Defendants argue the failure to disclose the relationship with Mr. Sherman could 

cause a person aware of the facts to reasonably entertain a doubt that Retired Justice 

Curry would be impartial. Determination as to a neutral arbitrator’s impartiality is based 

on an objective reasonable person standard. Our Supreme Court explained: “[T]he 

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.’” [Citations.] ‘The “reasonable person” is not 

someone who is “hypersensitive or unduly suspicious,” but rather is a “well-informed, 
15

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.” [Citation.]’” (Haworth, supra, 50 Cal.4th at p. 389; see Wechsler v. 

Superior Court (2014) 224 Cal.App.4th 384, 389.) Here, an objective observer would not 

find Retired Justice Curry was biased for or against a party for a particular reason. 

Retired Justice Curry had no personal or professional relationship with Mr. Sherman who

was not involved in the arbitration. Retired Justice Curry and Mr. Sherman had never 

met or communicated in any way. And Mr. Sherman stopped working for plaintiff over 

one-half a decade before the dispute between the parties developed. This is an entirely 

different situation than was present in Gray. Neither Retired Justice Curry nor 

Alternative Resolution Centers was required to disclose that Mr. Sherman is a member of 

that dispute resolution provider organization. (See Haworth, supra, 50 Cal.4th at p. 391; 

Mt. Holyoke Homes, L.P. v. Jeff Mangels Butler & Mitchell, LLP, supra, 219 Cal.App.4th 

at p. 1311.) 

 

B. Postponement Of Arbitration Hearing

Section 1286.2, subdivision (a)(5) states: “Subject to Section 1286.4, the court 

shall vacate the award if the court determines any of the following: . . . [¶] (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.” Section 1286.2, subdivision (a)(5) is a 

safety valve that permits a court to intercede when an arbitrator has prevented a party 

from fairly presenting its case. (SWAB Financial, LLC v. E*Trade Securities, LLC 

(2007) 150 Cal.App.4th 1181, 1196 (SWAB Financial, LLC); Hall v. Superior Court 
16

(1993) 18 Cal.App.4th 427, 439.) Here defendants must prove the arbitrators abused 

their discretion in refusing to continue the arbitration and that prejudice resulted. (SWAB 

Financial, LLC, supra, 150 Cal.App.4th at p. 1198.) We review the trial court’s order de 

novo where the facts are undisputed. (SWAB Financial, LLC, supra, 150 Cal.App.4th at 

p. 1196; Malek v. Blue Cross of California (2004) 121 Cal.App.4th 44, 55.) To the extent 

the trial court’s ruling rests upon a determination of disputed facts, we apply the 

substantial evidence test. (SWAB Financial, LLC, supra, 150 Cal.App.4th at p. 1196; 

Malek v. Blue Cross of California, supra, 121 Cal.App.4th 44 at pp. 55-56.)

Defendants argue the trial court erred by not vacating the arbitration award under 

section 1286.2, subdivision (a)(5). Defendants contend: their rights were substantially 

prejudiced by Retired Justice Curry’s refusal to postpone the arbitration hearing; the trial 

court erred in finding the arbitration hearing could only be postponed by written request;

they did not have to request for a continuance in writing because Retired Justice Curry 

had decreed that the arbitration would be informal; and the trial court erred by not finding 

there was sufficient cause for postponing the arbitration hearing. 

The trial court did not err by denying defendants’ petition to vacate the arbitration 

award under section 1286.2, subdivision (a)(5). Defendants and Ms. Bozzone did not 

request a postponement of the arbitration hearing. As noted, Ms. Bozzone’s January 22, 

2013 e-mail to Retired Justice Curry and Mr. Waxler states: “Ms. Courteau has a motion 

pending before the Superior Court, a copy of which you should both have received. I 

believe it would [be] entirely inappropriate to proceed with the arbitration hearing in 

Ms. Courteau’s absence; moreover, as a party arbitrator retained by Ms. Courteau, it 

would be inappropriate for me to appear at the January 25 hearing. I do not believe 

Ms. Courteau intends to appear on January 25 due to the pending motion. However, you 

may wish to confirm this. [¶] I should have communicated this position by this 

weekend, and I am sorry for the delay, but my mother has been in ICU at Little Company 

of Mary since Saturday Night and my mind has been elsewhere.” Ms. Bozzone’s January 

22, 2013 e-mail indicates defendants and she did not intend to attend the arbitration 

hearing. However, as previously explained, Retired Justice Curry stated: “Neither 
17

Ms. Courteau nor her appointed party arbitrator, Cynthia Bozzone, requested a 

postponement of the Arbitration scheduled for January 25, 2013 due to Ms. Bozzone’s 

mother’s illness. Ms. Bozzone mentioned that her mother was in the hospital only after 

she and Ms. Courteau had indicated they did not plan to attend the Arbitration.” 

No doubt, Ms. Bozzone had good cause for postponement of the hearing. 

Ms. Bozzone’s mother was hospitalized. But neither defendants nor Ms. Bozzone

requested a continuance of the hearing from Retired Justice Curry. There is no merit to 

defendants’ argument the trial court erred in requiring that their continuance request be in 

writing. There is no evidence defendants made any oral or written request. There is no 

evidence defendants ever contacted the arbitrators and requested the arbitration hearing

be postponed. It is impossible for an arbitrator to abuse discretion when she or he is not 

asked to make the challenged decision. Moreover, defendants did not appear at the 

arbitration hearing to request a postponement. Retired Justice Curry did not abuse his 

discretion by going forward with the arbitration hearing because defendants and 

Ms. Bozzone never requested a postponement. The trial court properluy ruled no abuse 

of discretion occurred. 

Two brief final comments are in order. First, defendants have failed to 

demonstrate they were prejudiced because the arbitration hearing was not continued. 

(Manson v. Wilcox (1903) 140 Cal. 206, 208-209; SWAB Financial, LLC v. E*Trade 

Securities, LLC, supra, 150 Cal.App.4th at p. 1198; Cothron v. Interinsurance Exchange 

(1980) 103 Cal.App.3d 853, 860-861.) Defendants have failed to demonstrate they had

any chance of prevailing in the arbitration had there been a continuance. Second, we 

need not address the question of whether all of defendants’ claims have been forfeited 

because they chose not to appear at the arbitration. (See A/S Ganger Rolf v. Zeeland 

Transportation, Ltd. (S.D.N.Y. 1961) 191 F.Supp. 359, 363; Comerica Bank v. Howsam

(2012) 208 Cal.App.4th 790, 826.) 
18

IV. DISPOSITION

The judgment is affirmed. Plaintiff, Lawyers’ Mutual Insurance Company, shall 

recover its appeal costs from defendants, Law Offices of Diana Courteau, doing business 

as Courteau & Associates, and Diana L. Courteau.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

KRIEGLER, J.

MINK, J.*

 

*

 Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice 

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