Filed 4/19/21 Grabowski v. Kaiser Foundation Health Plan CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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

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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JOANNA G. GRABOWSKI,

Plaintiff and Appellant,

v.

KAISER FOUNDATION HEALTH 

PLAN, INC., et al.,

Defendants and Respondents.

 D076968

 (Super. Ct. No. 37-2019-

 00013115-CU-PA-CTL)

APPEAL from an order of the Superior Court of San Diego County, 

David M. Rubin, Judge. Reversed with directions.

Joanna G. Grabowski, in pro. per., for Plaintiff and Appellant.

Cole Pedroza, Kenneth R. Pedroza, Alysia B. Carroll; Davis, Grass, 

Goldstein & Finlay and Vincent J. Iuliano, for Defendants and Respondents.

Joanna G. Grabowski brought claims for medical malpractice against 

Kaiser Foundation Health Plan, Inc., Southern California Permanente 

Medical Group, and various associated physicians (collectively, Kaiser).1 The 

1 The physicians are Barbie Lynn Norman, Walter D. Vasquez, John 

Stewart Kennedy, and Diana Cantu.
2

claims were heard by an arbitrator, Byron Berry, pursuant to a contractual 

arbitration agreement. After a contested hearing, the arbitrator awarded 

judgment in favor of Kaiser. 

Grabowski petitioned the trial court to vacate the arbitration award. 

(Code Civ. Proc., § 1285; further statutory references are to the Code of Civil 

Procedure.) She alleged (1) the arbitrator committed misconduct, and 

revealed disqualifying bias, by engaging in an ex parte communication with 

Kaiser’s counsel about Grabowski’s self-represented status; (2) the arbitrator 

failed to disclose two matters involving Kaiser where he was selected as an 

arbitrator; and (3) the arbitrator improperly denied Grabowski’s request for a 

continuance of the arbitration hearing. The trial court found that “the 

arbitrator’s conduct did not rise to a level that substantially prejudiced 

[Grabowski’s] rights” and therefore dismissed her petition. 

Grabowski appeals the trial court’s order dismissing her petition. She 

reasserts all three grounds for vacating the arbitration award. We agree the 

award should be vacated. The ex parte communication between the 

arbitrator and Kaiser’s counsel was recorded by Grabowski’s mother as part 

of her effort to document the arbitration hearing. The audio recording 

reveals comments by the arbitrator making light of Grabowski’s selfrepresentation and her inability, in the arbitrator’s view, to effectively 

represent herself. The arbitrator volunteered these comments to Kaiser’s 

counsel, ex parte, and they shared a hearty laugh about Grabowski’s 

perceived shortcomings as an advocate.

The arbitrator committed misconduct on several levels. At least one 

requires vacating the arbitration award. A neutral arbitrator has a 

continuing duty to disclose all matters that could cause a person aware of the 

facts to reasonably entertain a doubt that the neutral arbitrator would be 
3

able to be impartial. The arbitrator’s ex parte communication with Kaiser’s 

counsel certainly qualifies. Because the arbitrator was aware of this 

communication and did not disclose it to Grabowski, the award must be 

vacated. (§ 1286.2, subd. (a)(6)(A).) We therefore reverse the order 

dismissing the petition with directions to grant the petition and vacate the 

arbitration award. In light of our conclusion, we need not consider the other 

grounds for vacating the award asserted by Grabowski.

FACTUAL AND PROCEDURAL BACKGROUND

In the underlying arbitration, Grabowski alleged that Kaiser 

negligently failed to diagnose a large, benign ovarian tumor. A Kaiser 

physician noted abnormalities in an early radiological scan and recommended 

follow-up, but this recommendation was not followed by Kaiser. Over the 

ensuing years, Grabowski suffered severe pain and discomfort, which she 

attributed to the growing tumor. The tumor was discovered when Grabowski 

was a teenager, after it had grown close to the size of a melon. Kaiser 

performed surgery to remove it. After the surgery, Grabowski continued to 

suffer severe pain. A different medical provider discovered that a portion of 

Grabowski’s small intestine had become trapped when her surgical incision 

was closed. 

Kaiser disputed that it should have diagnosed the tumor or that the 

tumor caused Grabowski’s years-long symptoms. It contended Grabowski’s 

pain was caused by other conditions. 

The arbitration hearing was held over five days. The arbitrator heard 

percipient and expert testimony from both sides. Grabowski, now collegeaged, represented herself. She was assisted by her mother. Kaiser was 

represented by an attorney, Vincent Iuliano, who is also co-counsel of record 

in this appeal. 
4

In his award, the arbitrator found that Grabowski’s tumor could not 

have been diagnosed until it became approximately the size of a melon. He 

understood Grabowski’s expert to testify that Kaiser’s physicians had 

individually met the requisite standard of care, but that Kaiser as a whole 

“breached its standard of care for not diagnosing the tumor earlier.” The 

arbitrator rejected this theory, which he characterized as “an attempt to 

impose liability on Kaiser without finding fault or blame on any of the 

doctors” who treated Grabowski. The arbitrator noted that Grabowski had 

suffered severe pain for many years and continued to experience pain. He 

theorized that her pain was caused by “her intense engagement in athletics 

as a pitcher on her college softball teams.” 

The arbitrator concluded that Grabowski “failed to establish through 

expert testimony that the legal cause of her injuries was the failure of her 

Kaiser doctors to exercise the care and skill required under the 

circumstances.” He therefore awarded judgment in favor of Kaiser. 

Grabowski, represented by counsel, petitioned the trial court to vacate 

the award based on three primary grounds. She supported her petition with 

several declarations, documentary exhibits, and the audio recording of the 

arbitrator’s ex parte communication with Kaiser’s counsel. 

First, Grabowski contended that the arbitrator committed misconduct 

during an early break in the arbitration proceedings by joking with Kaiser’s 

counsel, ex parte, about Grabowski’s self-representation. Grabowski’s mother 

was recording the proceedings on her cell phone and had inadvertently left it 

going while she and Grabowski left the room. The unofficial transcript of the 

audio record submitted by Grabowski is reproduced below, with minor 

punctuation changes. Kaiser does not contest its general accuracy.
5

THE ARBITRATOR: “I’ve been doing this for a long time. 

This has been one of the bigger—bigger challenges, uh, 

because she doesn’t have an attorney. It makes it just 

kinda awkward.”

KAISER’S COUNSEL: “First time in 30 years in my 

practice . . . .”

THE ARBITRATOR: “For you?”

KAISER’S COUNSEL: “ . . . I’ve never seen this before.”

THE ARBITRATOR: “He’d, uh, everybody had 

representatives before?”

KAISER’S COUNSEL: “Absolutely.”

THE ARBITRATOR: “And this is the wrong case. This is the 

wrong case. How can you not have an attorney? Even 

in some union cases and stuff that I deal with quite a 

bit. (Laughs.) Private cases, uh, or what have you, 

’cause even with, uh, in union cases, uh, they have 

representatives who are not attorneys, but they know 

this stuff so well, they might, uh, you know, they’re just 

as qualified as an attorney. So, she must have a 

representative that you can rely on, you know, to make 

sure that everything’s done correctly. You know, but 

this is . . . . (Laughs.) [She] picked one of the toughest, 

factual cases I’ve ever dealt with to have somebody in 

[pro. per.] (Laughs.)”

Grabowski asserted that the arbitrator was “ ‘yukking it up’ ” with 

Kaiser’s counsel and that his comments, especially his tone and laughter, 

showed his disrespect and disregard for Grabowski. She contended that the 
6

ex parte communication showed bias, which was grounds for disqualification. 

(See §§ 170.1, subd. (a)(6), 1281.91, subd. (d).) She also argued that the 

communication showed corruption, fraud, or other undue means that 

required vacating the award. (See § 1286.2, subd. (a)(1)-(3).) 

Second, Grabowski contended the arbitrator failed to disclose two 

matters involving Kaiser where he accepted appointment as an arbitrator. 

Grabowski maintained that she would have sought to disqualify the 

arbitrator if these two matters had been disclosed. She argued that the 

arbitrator’s failure to disclose the two matters breached his ethical 

obligations and constituted a further ground for vacating the award. 

(See § 1286.2, subd. (a)(6)(A).)

Third, Grabowski contended the arbitrator failed to grant a 

continuance of the arbitration hearing, despite her showing of good cause to 

do so. Grabowski wanted more time to speak with her surgeon about 

treatment for spine conditions she believed were caused by Kaiser’s 

negligence. Grabowski argued the arbitrator’s failure to grant a continuance 

substantially prejudiced her rights and was therefore grounds for vacating 

the award as well. (See § 1286.2, subd. (a)(5).)

Kaiser opposed the petition to vacate. It contended that the recorded 

ex parte communication was not improper because it did not involve the 

merits of the arbitration. It maintained that the communication was not 

derogatory, did not reveal any bias, and did not constitute misconduct. 

Kaiser also contended that the arbitrator had served notice of the two 

additional matters involving Kaiser on Grabowski’s prior attorney, while he 

was still representing Grabowski. Regarding the continuance, Kaiser argued 

that Grabowski did not show good cause for a continuance because she did 

not link her spine treatment to Kaiser’s alleged negligence with competent 
7

evidence. And, in any event, Grabowski had not shown that the arbitrator’s 

failure to grant a continuance prejudiced her. 

After hearing argument, the trial court issued a written statement of 

decision. It found that the ex parte communication was improper and 

unethical. The court wrote, “Though very short, this was not a general 

discussion about scheduling or administration. Rather, the conversation 

centered on [Grabowski]: Her pro per status, that the case is factually 

complicated and the potential for an adverse result as a consequence of 

lacking an attorney to assist her.” However, the court found that Grabowski 

did not show how the communication “substantially prejudiced her rights” 

and she did not establish “a nexus between the communication and the 

award.” The court also found that Grabowski had not shown the arbitrator 

failed to provide notice of the two additional Kaiser matters to her prior 

counsel. Finally, it found that Grabowski did not adequately justify her 

request for a continuance and the arbitrator did not abuse his discretion by 

denying it. Overall, Grabowski “fail[ed] to demonstrate ‘substantial 

prejudice’ or a nexus between the arbitrator’s conduct and the arbitration 

award.” The court therefore dismissed her petition. Grabowski appeals.2

DISCUSSION

As noted, Grabowski contends the trial court erred by not vacating the 

arbitration award based on the arbitrator’s ex parte communication with 

Kaiser’s counsel. Among other things, Grabowski argues that the award 

must be vacated because the arbitrator failed to disclose the communication 

2 Grabowski represents herself in this appeal. “Under the law, a party 

may choose to act as his or her own attorney. [Citations.] ‘[S]uch a party is 

to be treated like any other party and is entitled to the same, but no greater 

consideration than other litigants and attorneys.’ ” (Nwosu v. Uba (2004) 

122 Cal.App.4th 1229, 1246-1247.)
8

as required by statute and ethical rules. (§ 1286.2, subd. (a)(6)(A).) We 

agree.3

“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.’ [Citation.] [¶] Generally, in the absence of a specific agreement 

by the parties to the contrary, a court may not review the merits of an 

arbitration award. [Citation.] Although the parties to an arbitration 

agreement accept some risk of an erroneous decision by the arbitrator, ‘the 

Legislature has reduced the risk to the parties of such a decision by providing 

for judicial review in circumstances involving serious problems with the 

award itself, or with the fairness of the arbitration process.’ ” (Haworth,

supra, 50 Cal.4th at p. 380.)

“The statutory scheme, in seeking to ensure that a neutral arbitrator 

serves as an impartial decision maker, requires the arbitrator to disclose to 

the parties any grounds for disqualification.” (Haworth, supra, 50 Cal.4th at 

3 In the trial court, Grabowski framed her contention somewhat 

differently, focusing on the misconduct of the arbitrator, rather than the 

failure to disclose. To the extent this reframing constitutes a new theory 

presented for the first time on appeal, Kaiser has not objected to it and we 

exercise our discretion to allow it. (See Ward v. Taggart (1959) 51 Cal.2d 

736, 742; Sheller v. Superior Court (2008) 158 Cal.App.4th 1697, 1709.) The 

material facts are undisputed. And, as we explain, the disclosure 

requirement presents a mixed question of fact and law that is predominantly 

legal and subject to de novo review. (Haworth v. Superior Court (2010) 

50 Cal.4th 372, 385-386 (Haworth).)
9

p. 381, fn. omitted.) If the 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. 

(§ 1286.2, subd. (a)(6)(A).) “Under the applicable California statute, an 

arbitrator’s failure to make a required disclosure requires vacation of the 

award, without a showing of prejudice.” (Haworth, at p. 394.) The statute 

“leaves no room for discretion.” (Ovitz v. Schulman (2005) 133 Cal.App.4th 

830, 845; accord, Benjamin, Weill & Mazer v. Kors (2011) 195 Cal.App.4th 40, 

73 (Benjamin).)

“The arbitrator disclosure rules are strict and unforgiving. And for 

good reason. Although dispute resolution provider organizations may be in 

the business of justice, they are still in business. The public deserves and 

needs to know that the system of private justice that has taken over large 

portions of California law produces fair and just results from neutral decision 

makers.” (Honeycutt v. JPMorgan Chase Bank, N.A. (2018) 25 Cal.App.5th 

909, 931 (Honeycutt).)

Section 1281.9 requires that, “when a person is to serve as a neutral 

arbitrator, the proposed 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,” including 

certain enumerated matters. (§ 1281.9, subd. (a).) Among the enumerated 

matters is “[t]he existence of any ground specified in Section 170.1 for 

disqualification of a judge.” (§ 1281.9, subd. (a)(1).) Section 170.1, in turn, 

states that a judge “shall be disqualified” if, for any reason, “[a] person aware 

of the facts might reasonably entertain a doubt that the judge would be able 

to be impartial.” (§ 170.1, subd. (a)(6)(A)(iii).) “Bias or prejudice toward a 
10

lawyer in the proceeding may be grounds for disqualification.” (§ 170.1, 

subd. (a)(6)(B).)

Section 1281.85 imposes additional disclosure requirements. It states, 

“a person serving as a neutral arbitrator pursuant to an arbitration 

agreement shall comply with the ethics standards for arbitrators adopted by 

the Judicial Council pursuant to this section. . . . The standards shall 

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.” (§ 1281.85, 

subd. (a).)

The Judicial Council subsequently adopted the Ethics Standards of 

Neutral Arbitrators in Contractual Arbitration. (Honeycutt, supra, 

25 Cal.App.5th at p. 921.) California Rules of Court, Ethics Standard 7 

addresses disclosure. Like its statutory counterpart, Ethics Standard 7 

requires disclosure of “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 various enumerated matters. (Ethics Standards, 

std. 7(d).) Among the enumerated matters is any other matter that “[m]ight 

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

arbitrator would be able to be impartial[.]” (Ethics Standards, 

std. 7(d)(15)(A).)

The Ethics Standards impose a continuing duty of disclosure, “applying 

from service of the notice of the arbitrator’s proposed nomination or 

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

Standards, std. 7(f); see Honeycutt, supra, 25 Cal.App.5th at pp. 922-923.) If, 

after the time for initial disclosures has passed, “an arbitrator subsequently 
11

becomes aware of a matter that must be disclosed . . . , the arbitrator must 

disclose that matter to the parties in writing within 10 calendar days after 

the arbitrator becomes aware of the matter.” (Ethics Standards, std. 7(c)(2).)

A federal appellate court has interpreted these statutes as imposing an 

initial duty of disclosure under section 1281.9 and a continuing duty of 

disclosure under section 1281.85 and the Ethics Standards. (See Johnson v. 

Gruma Corp. (9th Cir. 2010) 614 F.3d 1062, 1067-1068.) As relevant here, 

regardless of its source, the substantive duty 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” remains the 

same. (§ 1281.9, subd. (a); Ethics Standards, std. 7(d).)

“ ‘The “reasonable person” is not someone who is “hypersensitive or 

unduly suspicious,” but rather is a “well-informed, thoughtful observer.” ’ 

[Citation.] ‘[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.’ ” 

(Haworth, supra, 50 Cal.4th at p. 389.)

“ ‘Impartiality’ entails the ‘absence of bias or prejudice in favor of, or 

against, particular parties or classes of parties, as well as maintenance of an 

open mind.’ [Citation.] In the context of judicial recusal, ‘[p]otential bias and 

prejudice must clearly be established by an objective standard.’ ” (Haworth,

supra, 50 Cal.4th at p. 389.) “ ‘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.’ ” (Ibid.) 

“ ‘Bias is defined as a mental [predilection] or prejudice; a leaning of the 

mind; “a predisposition to decide a cause or an issue in a certain way, which 
12

does not leave the mind perfectly open to conviction.” ’ ” (Baxter v. Bock 

(2016) 247 Cal.App.4th 775, 791.)

As noted, in order to prevail, Grabowski “is not required to prove that 

[the arbitrator] actually was influenced by bias.” (Haworth, supra, 50 Cal.4th 

at p. 384.) Instead, the “sole issue” is whether the information was required 

to be disclosed. (Ibid.) Whether disclosure was required “is a mixed question 

of fact and law that should be reviewed de novo. The applicable rule provides 

an objective test by focusing on a hypothetical reasonable person’s perception 

of bias. The question is not whether [the arbitrator] actually was biased or 

even whether he was likely to be impartial; those questions involve a 

subjective test that appropriately could be characterized as primarily factual. 

The question here is how an objective, reasonable person would view [the 

arbitrator’s] ability to be impartial.” (Id. at pp. 385-386.) Where, as here, 

there are no underlying material facts in dispute, our review of the court’s 

order denying Grabowski’s petition to vacate is de novo. (Mt. Holyoke 

Homes, L.P. v. Jeffer Mangels Butler & Mitchell, LLP (2013) 219 Cal.App.4th 

1299, 1312.)

Initially, we note that the arbitrator’s ex parte communication with 

Kaiser’s counsel was not ethical. Kaiser does not dispute this conclusion. 

California Rules of Court, Ethics Standard 14, subdivision (a) provides, “An 

arbitrator must not initiate, permit, or consider any ex parte communications 

or consider other communications made to the arbitrator outside the presence 

of all of the parties concerning a pending or impending arbitration, except as 

permitted by this standard, by agreement of the parties, or by applicable 

law.” Even where an ex parte communication is permitted, as for example

about administrative matters, “the arbitrator must promptly inform the other 

parties of the communication and must give the other parties an opportunity 
13

to respond before making any final determination concerning the matter 

discussed.” (Ethics Standards, std. 14(b).) The ex parte communication here 

was not about “administrative matters” and was therefore prohibited by 

Ethics Standard 14.

Beyond its prohibited nature, we conclude a person aware of the ex 

parte communication could reasonably entertain a doubt that the arbitrator 

would be able to be impartial. The communication showed that the arbitrator 

had concluded that Grabowski could not be an effective advocate for herself. 

While this conclusion may not necessarily evince bias in and of itself, the 

arbitrator’s decision to share his conclusion with Kaiser’s counsel certainly 

does. The arbitrator plainly felt a connection to Kaiser’s counsel, which made 

him comfortable enough to violate ethical rules and comment on Kaiser’s 

opponent.

Moreover, the arbitrator’s comments went far beyond the bare 

conclusion that Grabowski was ineffective. The audio recording, which 

reveals the arbitrator’s tone and attitude, is striking. The arbitrator 

commiserated with Kaiser’s counsel about their shared predicament (in his 

view) and shared a hearty laugh at Grabowski’s expense. The arbitrator

vividly expressed his incredulity that Grabowski was representing herself. 

The arbitrator also commented on the nature of the case itself, stating that 

Grabowski “picked one of the toughest, factual cases [the arbitrator had] ever 

dealt with to have somebody in [pro. per.]” His emotional response is 

apparent. The exact reason for the laughter is somewhat unclear, but it was 

clearly improper. Whether it was nervous laughter at the ethical 

transgression that had just occurred, disbelieving laughter that Grabowski 

was so unable to represent herself, or derisive laughter about Grabowski’s 
14

perceived incompetence, it highlights the reasons why the ex parte 

communication was improper.

A person aware of the ex parte communication could reasonably believe 

that the arbitrator did not take Grabowski seriously and could not maintain 

an open mind about her claims. He was biased against her for a particular 

reason, i.e., her self-represented status. A person aware of the ex parte 

communication could also reasonably believe that the arbitrator was partial 

to Kaiser’s counsel, again for a specific reason. He was a fellow professional 

at the mercy (in the arbitrator’s view) of Grabowski’s lack of legal training

and perceived incompetence.

Again, we emphasize that an arbitrator’s private conclusion that an 

advocate is ineffective or incompetent does not necessarily create grounds for 

disqualification. The dispositive circumstances here are the arbitrator’s 

decision to share this conclusion with Kaiser’s counsel and the arbitrator’s

obviously emotional response to Grabowski’s self-representation. A 

reasonable person could conclude that these were not the actions and 

statements of an impartial decision maker.

Because a reasonable person aware of the ex parte communication 

could reasonably entertain a doubt that the arbitrator would be able to be 

impartial, the arbitrator was required to disclose the communication within 

10 calendar days. (Ethics Standards, std. 7(c)(2).) Grabowski would then 

have had the opportunity to disqualify the arbitrator. (See § 1281.91, 

subd. (d); Ethics Standards, std. 10(a)(3).) The arbitrator did not make the 

required disclosure. The statute therefore requires that the arbitration 

award be vacated, without any further showing. (§ 1286.2, subd. (a)(6)(A); 

see Haworth, supra, 50 Cal.4th at p. 394.)
15

In its appellate briefing, Kaiser did not address whether the arbitrator 

should have disclosed the ex parte communication or whether the arbitration 

award must be vacated based on his failure to do so. Instead, it argued only 

that the ex parte communication did not constitute corruption, fraud, or the 

use of undue means to obtain an arbitration award. At oral argument, Kaiser 

conceded the ex parte communication should have been disclosed, but it 

maintained that a further showing was required to vacate the award. In its 

briefing, Kaiser asserted that Grabowski must show “ ‘substantial prejudice 

or a nexus between the award and the alleged undue means used to attain 

it.’ ” Although this phrase appears in quotation marks in Kaiser’s briefing, it 

does not appear in either of the authorities Kaiser cites: section 1286.2, 

subdivision (a), and Pour Le Bebe, Inc. v. Guess? Inc. (2003) 112 Cal.App.4th 

810, 834 (Pour Le Bebe). 

In any event, Kaiser does little to explain the basis for this legal 

standard or why it should be applied here. Pour Le Bebe references a “nexus”

requirement in discussing a federal appellate decision: “As the Ninth Circuit 

said in A.G. Edwards, a court should not presume that perjured evidence or 

evidence procured by undue means had an impact on the arbitrators. Since 

‘arbitrators are not required to state the reasons for their decisions’; we 

‘presume[] the arbitrators took a permissible route to the award where one 

exists’; and the applicable statute provides for vacation of an award 

‘ “procured by corruption, fraud, or undue means” ’ [citation], the moving 

party needs to demonstrate a nexus between the award and the alleged 

undue means used to attain it.” (Pour Le Bebe, supra, 112 Cal.App.4th at 

pp. 833-834, quoting A.G. Edwards & Sons, Inc. v. McCollough (9th Cir. 

1992) 967 F.2d 1401, 1403.) Perjured evidence or evidence procured by 

undue means—through no fault of the arbitrator—is not at issue here.
16

Pour Le Bebe itself considered “whether ‘other undue means’ includes 

representation of the prevailing party by an attorney with a potential conflict 

of interest[.]” (Pour Le Bebe, supra, 112 Cal.App.4th at p. 826.) The losing 

party criticized the arbitration panel “for its limited inquiry into the conflict 

issue, but [it] highlight[ed] no aspect of the arbitrators’ award that might 

have been impacted by any confidential information allegedly obtained” by 

the conflicted attorneys. (Id. at p. 835.) Because the losing party “failed to 

show by clear and convincing evidence that a conflict existed and that it had 

a substantial impact on the panel’s decision,” the court affirmed an order 

denying a petition to vacate. (Id. at p. 837.) A conflicted attorney—likewise 

not due to any fault of the arbitrator—is also not at issue here.

Kaiser also relies on Pacific Vegetable Oil Corp. v. C.S.T., Ltd. (1946) 

29 Cal.2d 228, but it does not explain how that 70-year-old opinion relates to 

the current statutory scheme governing arbitration. Pacific Vegetable held 

that, in order to justify vacating an arbitration award, “the misconduct or 

error complained of, to whatever class it might belong, must be of such 

character that the rights of the party complaining were prejudiced thereby.” 

(Id. at p. 240.) Here, to the extent this standard is relevant, Grabowski’s 

rights were substantially prejudiced because she was unable to exercise her

statutory right to disqualify an arbitrator that a reasonable person could 

doubt would be impartial. (See Benjamin, supra, 195 Cal.App.4th at p. 73.) 

We disagree with Kaiser’s suggestion that her rights were not prejudiced 

because she was able to present her evidence to the arbitrator and the 

arbitrator allegedly “paid careful consideration to Grabowski’s argument and 

evidence.” Grabowski was entitled to the safeguards set out in the statutory 

scheme to ensure that she was informed of any potential for bias in the 

neutral arbitrator, so that her evidence and argument would be heard by an 
17

impartial decision maker (or at least one whose potential biases were known). 

Because those safeguards were disregarded here, the entire arbitration is 

suspect.4

Kaiser asserts that the award should not be vacated because “even if 

the ex parte communication did not occur, the result would have been the 

same.” Kaiser does not offer any support for such a legal standard in this 

context or any cogent argument why we should adopt it. Moreover, as 

evidence that the result would have been the same, Kaiser cites the 

arbitrator’s factual findings. In a situation where the arbitrator’s 

impartiality is at issue, such reliance is unpersuasive.

Although Kaiser did not raise them in its briefing, the trial court relied 

on several authorities that considered ex parte communications in other 

contexts. They are not applicable because they did not consider—and 

apparently did not involve—communications that could cause a person aware 

of the facts to reasonably entertain a doubt that the arbitrator would be able 

to be impartial, thereby imposing the requirement of disclosure. The focus in 

these authorities was whether the arbitrator’s receipt of the communication 

exposed him to new evidence or arguments, to which the opposing party could 

not respond. (See Baker Marquart LLP v. Kantor (2018) 22 Cal.App.5th 729, 

740-741 [reversing an order confirming an arbitration award, based on ex 

parte confidential brief submitted to the arbitrator without notice to the 

opposing party; “Under the facts of this case, we conclude Baker Marquart 

had no meaningful or adequate opportunity to respond to the new claims 

4 For this reason, it could be argued that the arbitration award must be 

vacated for the additional reason that Grabowski’s rights “were substantially 

prejudiced by [the] misconduct of a neutral arbitrator.” (§ 1286.2, 

subd. (a)(3).)
18

Kantor raised for the first time in its confidential brief. This is neither fair 

nor proper.”]; Maaso v. Signer (2012) 203 Cal.App.4th 362, 372 [affirming an 

order vacating an arbitration award, based on an ex parte letter brief 

submitted by a party arbitrator to the neutral arbitrator; “While it may be 

true that Maaso had an opportunity to present all of his evidence during the 

arbitration hearing, Maaso was prevented from presenting all of his 

arguments to the neutral arbitrator. As the plaintiff with the burden of proof 

on the issue of causation, Maaso did not have the last word because he did 

not have an opportunity to rebut the arguments made in Hammond’s ex 

parte letter brief.”]; A.M. Classic Construction, Inc. v. Tri-Build 

Development Co. (1999) 70 Cal.App.4th 1470, 1476 [affirming an order 

denying a petition to vacate, based on an ex parte communication informing 

the arbitrator that he had inadvertently failed to resolve one claim; “In the 

absence of a showing that the arbitrator was improperly influenced or 

actually considered evidence outside the original arbitration proceedings such 

that appellants needed a further opportunity to be heard on the stop notice 

claim, appellants cannot demonstrate that the amended award was procured 

by corruption, fraud, undue means, or misconduct of the arbitrator within the 

meaning of section 1286.2, subdivisions (a), (b) or (c).”].) 

Unlike these cases, the issue here is not a party’s (or a party 

arbitrator’s) attempt to influence the neutral arbitrator through an ex parte 

communication. Instead, the issue is the arbitrator’s own decision to engage 

in an ex parte communication, revealing significant potential bias. It is not 

primarily a matter of Grabowski’s inability to respond; it is the arbitrator’s 

failure to disclose a potentially disqualifying matter.

The trial court also cited Cox v. Bonni (2018) 30 Cal.App.5th 287. In 

Cox, there were two ex parte communications at issue: (1) a short 
19

conversation between the arbitrator and defense counsel, during a different 

arbitration, about scheduling for the next week; and (2) an ex parte email 

from defense counsel to the arbitrator declining to seek costs in the 

arbitration under section 998. (Cox, at pp. 296-297.) The plaintiff argued 

that the arbitration award should be vacated based on, among other things, 

the arbitrator’s failure to disclose the communications. (Id. at pp. 309-310.) 

On the first ex parte communication, Cox noted that plaintiff’s counsel was 

actually aware of the communication before the arbitration hearing began. 

(Id. at p. 310.) By not objecting at that time, the plaintiff forfeited any 

challenge to the resulting award. (Id. at p. 311.) On the second ex parte 

communication, Cox noted that “ ‘not every item of information that is 

required to be disclosed under section 1281.9 constitutes a “ground for 

disqualification” as the term is used in section 1286.2.’ ” (Id. at p. 310, 

quoting Dornbirer v. Kaiser Foundation Health Plan, Inc. (2008) 

166 Cal.App.4th 831, 842 (Dornbirer).) Cox agreed that it would be “absurd” 

to vacate an arbitration award “based on minor omissions of details.” (Cox, at 

p. 310.) It therefore concluded that “section 1286.2 cannot be read to require 

vacation of an award when an arbitrator fails to disclose an ex parte 
20

communication waiving section 998 costs that did not prejudice the other 

party.” (Ibid.)5

Here, unlike Cox, there is no issue of forfeiture. And the required 

disclosure, of a matter that could cause a person aware of the facts to 

reasonably entertain a doubt that the arbitrator would be able to be 

impartial, is a ground for disqualification. (See §§ 170.1, subd. (a)(6)(A)(iii), 

1281.91, subd. (d).) The prejudice to Grabowski is apparent.

In sum, the arbitrator’s ex parte communication with Kaiser’s counsel 

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

5 In Dornbirer, this court considered a neutral arbitrator’s disclosure 

statement, which disclosed a number of prior arbitrations where the 

defendant was a party, but which did not include certain information 

required by statute for each arbitration, such as the dates, the prevailing 

parties, the names of the attorneys, and the amount of any monetary 

damages awarded. (Dornbirer, supra, 166 Cal.App.4th at p. 840; see 

§ 1281.9, subd. (a)(3)-(4).) The plaintiff argued that “each and every item of 

information that is required to be disclosed pursuant to section 1281.9 

constitutes a ‘ground for disqualification’ ” under section 1286.2, 

subd. (a)(6)(A). (Dornbirer, at p. 842.) This court disagreed. We held that 

“section 1286.2 cannot be read to nullify every arbitration award that stems 

from an arbitration in which the arbitrator failed to disclose all of the details 

of prior arbitrations, particularly where neither party challenged the 

arbitrator despite being aware that this information was not contained in the 

arbitrator’s disclosure.” (Ibid.) We explained, “When a party has been 

informed of the existence of a prior relationship between the arbitrator and 

another party or an attorney, that party is aware of facts that would put the 

party on notice of the potential for bias. If the arbitrator does not include 

additional information regarding such a relationship in the disclosure, a 

party has sufficient information to inquire of the arbitrator concerning that 

information. It is only when the arbitrator fails to acknowledge the existence 

of such a relationship that a party is without sufficient information to 

question the impartiality of the arbitrator.” (Ibid.) Dornbirer does not apply 

here. Among other things, Grabowski was completely unaware of the facts 

that could lead to doubts about the arbitrator’s impartiality.
21

the arbitrator would be able to be impartial. The arbitrator was therefore 

required to disclose the communication to Grabowski, so she could decide 

whether to seek his disqualification. (§ 1281.85; Ethics Standards, std. 7(d).) 

The arbitrator did not disclose the communication, and Grabowski was 

unable to exercise her right. The arbitrator’s failure to disclose a ground for 

disqualification requires that the arbitration award be vacated without any 

further showing of prejudice. (§ 1286.2, subd. (a)(6)(A); Haworth, supra, 

50 Cal.4th at p. 394.) “While that rule seems harsh, it is necessary to 

preserve the integrity of the arbitration process.” (Gray v. Chiu (2013) 

212 Cal.App.4th 1355, 1366; accord, Honeycutt, supra, 25 Cal.App.5th at 

pp. 931-932.)

DISPOSITION

The order dismissing Grabowski’s petition to vacate is reversed. On 

remand, the trial court is directed to grant Grabowski’s petition, vacate the 

arbitration award, and proceed pursuant to Code of Civil Procedure

section 1287. Grabowski is entitled to her costs on appeal.

GUERRERO, J.

WE CONCUR:

BENKE, Acting P. J.

DO, J.