Filed 2/16/21 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

HARRY ROUS S OS et al.

,

Plaintiff s and Respondent s ,

v.

THEODOSIOS ROUSSOS

,

Defendant and Appellant. B 29 335 8

(Los Angeles County Super. Ct. No. BS 1 70767 )

APPEAL from a judgment of the Superior Court of Los Angeles County, Gregory W. Alarcon , Judge. Reversed and
remanded with directions

. Nossaman , Jennifer L. Meeker and Maya G. Hamouie for
Defendant and Appellant. RMO, Scott E. Rahn, Sean D. Muntz and David G. Greco
for Theocharis Roussos as Amicus Curiae on behalf of Defendant
and A p pellant. Kesselman Brantly Stockinger , S.V. Stuart Johnson and Ryan Davis for Plaintiffs and Respondents

. Theod osios ( Ted ) Roussos appeals from a judgment confirming an arbitration award removing the managing director2

of two corporations

, owned by Ted and his brother Harry Roussos
as cotrustees of two trusts

, and appoint ing the director proposed by Harry

. 1 Ted contends the arbitration award must be vacated
because of the arbitrator’s refu sal to re cuse himself after Ted timely served his disqualification notice

. Harry contends T ed waived his right to object to the arbitrator because five years earlier the parties had agreed th e specified arbitrator would have binding authority to arbitrate all issues

. However, the arbitrator was still a “proposed neutral arbitrator ” for the pres ent arbitration under Code of Civil Procedure section s 1281.9 and 1281.91, 2 and under section 1281.91, subdivision (b)(1), the arbitrator was required to disqualify himself upon Ted ’s timely service of a notice of disqualification. We conclude the partie s cannot contract away California’s statutory protections for parties to an arbitration

, including mandatory disqualification of a proposed arbitrator upon a timely demand . We reverse and
remand

. 3

1 Because the Roussos family members share the same last name, we refer to them by their first names to avoid confusion.

2 Further statutory references are to the Code of Civil Procedure.

3 Ted also contends on appeal the arbitration agreement

, entered in 2012, did not cover the parties’ 2016 disputes; the signatures on the arbitration agreement were not properly authenticated ; and Ha rry and his wife Christine Roussos failed to join indispensable parties. Because we reverse based on the required disqualification of the arbitrator , we do not address the other issues.3 FACTUAL AND PROCEDURAL BACKGROUND

A. The Trusts and Business Entities Harry and Ted are brothers and cotrustees of the S.M.B.
Investor Associates Irrevocable Trust (S MB Trust) and the O.F. Management Irrevocable Trust ( OF Trust )

. As cotrustees of the
two trusts, Harry and Ted had management role s and financial interests in multiple inter related companies (the Roussos entities). As cotrustees of the SMB Trust, Harry and Ted held ownership interests in Dazum Limited (Dazum)

, Ve l nor Overseas
Ltd. (Velnor)

, S

. M

. B

. Management, Inc. (SMB Management)

, and
S.M.B. Investor Associates, L.P. (SMB LP)

. A s cotrustees of the
OF Trust

, they held ownership interests in Fenbe, Ltd. (Fenbe), Kelroad International, Inc. (Kelroad), Liro, Inc. (Liro) , and O.F. Enterprises Ltd., L.P. (OF LP). In 2017 OF LP own ed two apartment buildings on Abbot K i nney Boulevard and Palo ma Avenue in Venice and a third apartment building in Colton . Liro

own ed a vacant lot on Abbot Kinney Boulevard and an apartment building on Ocean Front Walk in Venice

.

B. Harry and Christine’s Demand for Arbitration and Motion
T o Compel Arbitration
On August 31, 2017 Harry and his wife Christine Roussos demanded arbitration pursuant to a December 2012 arbitration agreement signed by Christine

, Harry (individually and on beh alf of OF LP and SMB LP)

, Ted (individually and on behalf of OF LP and SMB LP)

, and two individuals signing on behalf of Liro, Kelroad, Fenbe, Dazum, Velnor, and SMB Management. T he arbitration agreement provide d the parties “stipulate and agree not to contest that Judge John P. Shook will arbitrate all issues4

with binding authority” over them. In their arbitration demand, Harry and Christine requested the appointment of a single
director for Ve lnor, Dazum, Kelro ad and Fenbe ; a stay of any distribution of cash or sale of assets held by Liro, OF LP

, and SMB Management ; and an order requiring Sarah Daly

, the
director of Liro and SMB Managemen t
, to keep Harry, Ted, and
other Roussos entities informed as to the business operations of
L i ro, SMB Management, SMB LP

, and OF LP. According to the demand, the arbitrator (Judge Shook) had previously appointed Daly to serve as the director of SMB Management and Liro

, but he did not appoint a director for Velnor, Daz um, Kelroad, or
Fenbe. The demand also alleged Daly was acting inappropriately with respect to her role as director of SMB Management and Liro. Harry and Christine’s demand for arbitration followed a prior
arbitration in which the arbitrator ordered part ition by sale of six properties held by OF LP, SMB LP, and Liro (the first arbitration)

. 4
On September 8, 2017 Harry and Christine filed a petition to compel arbitration naming Ted , SMB LP, OF LP, SMB Management , and Liro as respondents after they objected to the
arbitrator ’s jurisdiction to resolve the dispute

. 5 On October 6 Harry and Chr istine filed a motion to compel arbitration

, which
the trial court granted on March 5, 2018

. The trial court ordered
the parties to “ a rbitrate the controversies between them,

4 The first arbitration is the subject of Ted’s appeal in Roussos v. Roussos (Feb. 2, 2021, B293356 ) (nonpub. opn.)

.

5 Harry and Christine later dismissed SMB LP and O F LP from the petition.5

including the entire Petition scope, in accordance with their agreement to arbitrate.”

C. The Arbitrator’s Disclosure and Ted’s Notice of Disqualification
On March 13, 2018 Judge Shook served on the parties a
disclosu re report that disclosed two matters in which he had
served as a n arbitrator: (1) a March 2016 matter involving Ted, Harry, Christine, and the Roussos entities ; and (2) the first
arbitration involving Harry, Christine, and Ted resulting in a September 2016 arb itration award

. The cover letter to counsel stated, “[D] isclosures are being made for the prior sixty months pursuant to Code of Civil Procedure Sections 1281.6 and 1 28 1 .9. ”
The disclosure also provided, “ To further comp ly with CCP section 1281.85 as adopted by the Judicial Council of California
and effective as of July 1 , 2002 ARC [ ( Alternative Resolution Centers) ] makes the following disclosure: If selected as a neutral
arbitrator the Arbitrator selected in the instant 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. ARC will entertain offers of permitted employment or new profess ional relationships

— for example, as a neutral arbitrator or mediator

— from parties or attorneys involved in this case while this case is pending. ” The letter concluded, “[I] t is the position of ARC that the foregoing constitutes a complete and thorough dis closure. Proceeding to hearing in this matter shall be deemed acknowledgment of said disclosures and your acceptance of the
arbitrator. ”6 On March 22, 2018 Ted served a notice of disqualification
of Judge Shook as the arbitrator based on the disclosure re port pursuant to section 12 81.91 , subdivision (b)

. Ted asserted the arbitrator’s prior rulings and awards, as well as his relationships
with Ted’s prior attorney and Harry and Christine’s attorney

, could affect the arbitrator’s neutrality. The arbitrator denied
Ted’s disqualification request

.

D. The Arbitration Award As part of the 2018 arbitration

, Harry and Christine moved to remove and replace Daly as the director of SMB Management
and Liro

. T he a rbitrator had appointed Daly on June 6, 2016 to

serve as director of SMB Management and Liro upon Ted’s nomination, but at the time of the 2018 arbitration both Harry and Ted sought her removal and replacement. After a hearing

,

on March 30, 2018 the arbit rator revoked his prior appointment of Daly and removed her from her position as director of SMB Management and Liro. The arbitrator set an evidentiary hearing to consider Harry’s and Ted’s nomination s of individuals to serve

as the director of t he Rousso s entities

. After a hearing, on May 18, 2018 th e arbitrator in his final
amended award appoint ed David Kaplan, Harry’s choice of director, as the acting director for all of the Roussos entities.

E. The Trial Court’s Confirmation of the Arbitration Award
On June 6, 2018 Harry and Christine filed a petition and
motion to confirm the amended arbitration award. On June 18
Ted filed an answer to the petition , r equesting the trial court
vacate the award

. Ted also filed a n opposition to the motion to confirm t he amended a rbitration award

. Ted contended the7

award must be vacated because the arbitrator failed to disqualify
himself upon timely receipt of Ted’s notice of disqualification.
Ted also argued Harry and Christine ha d not authenticated the arbitration agreement because Harry’s declaration did not aver he saw an authorized agent of the Roussos entities sign the arbitration agreement ; th e arbitration agreement only covered the issues in dispute in 2012, not th e present d ispute ; the arbitrator exceeded his powers by issuing an award that w ent beyond the arbitration demand (removal of Daly) ; and the award
was void because the two trusts were not joined as indispensable partie s. On August 1, 2018 the trial court granted Harry and
Christine’s motion to confirm the amended arbitration award.
On August 31 the court entered judgment confirming the
amended arbitration award and ordering Ted to pay Harry and Christine $51,28 9.85 in attorneys’ fe es incurred to confirm the
award

. Ted timely appealed.

DISCUSSION

A. The Disclosure and Disqualification Requirements of the
Arbitration Act and E thics S tandards for N eutral
A rbitrators

“ The California Arbitration Act ( § 1280 et seq.) ‘ represents a compreh ensive statutory scheme regulating private arbitration
in this state. ’ ” ( H

aworth v. Superior Court (2010) 50 Cal.4th 372, 380; accord, Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9

. )

“ In 2001 the Legislature ‘ significantly revised the disclosure requirements and procedures for disqualifying arbitrators pursuant to private or contractual arbitration ’ and directed the8

Judicial Council to adopt ethical standards for neutral
arbitrators. [Citations.] ‘ The 2001 legislation arose out of a

p erceived lack of rigorous ethical standards in the private arbitration industry. Cosponsored by the Governor and the Judicial Council, the bill sought to provide “ basic measures of consumer protection with respect to private arbitration, such as
minimum e thical standards and remedies for the arbitrator ’ s failure to comply with existing disclosure requirements. ” ’” ( Honeycutt v. JP Morgan Chase Bank, N.A. (2018) 25 Cal.App. 5th
909
, 921 , fn. omitted ( Honeycutt ) ; accord, Azteca Construction, Inc. v. ADR Consulting, Inc. (2004) 121 Cal.App. 4th 1156, 1162, 1165 ( Azteca ) .)

“ The statutory scheme, in seeking to ensure that a neutral arbitrator serves as an impartial decision maker, requires the arbitrator to disclose to the par ties any grounds for disqualification. Within 10 days of receiving notice of his or her nomination to serve as a neutral arbitrator, the proposed arbitrator is required, generally, to ‘ disclose all matters that could cause a person aware of the facts to r easonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial. ’ ( § 1281.9, subd. (a).) ” 6 ( Haworth v. Superior Court

,

6 Section 1281.9, subdivision (a), provides in pertinent part

,
“ In any arbitration pursuant to an arbitration agreement, 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

propos ed neutral arbitrator would be able to be impartial, including all of the following: [¶] (1) The existence of any ground specified in Section 170.1 for disqualification of a judge

. . . . [¶] (2) Any matters required to be disclosed by the9

supra , 50 Cal.4th at p. 38 1, fn. omitted ; accord, Gray v. Chiu (2013) 212 Cal.App. 4th 1355, 1361.)
Sect ion 1281.91, subdivision (b), provides, “(1) If the proposed neutral arbitrator complies with Section 1281.9, the proposed neutral arbitrator shall be disqualified on the basis of the disclosure statement after any party entitled to receive the
disclosure serves a notice of disqualification within 15 calendar days after service of the disclosure statement. [¶] (2) A party shall have the right to disqualify one court

- appointed arbitrator without cause in any single arbitration, and may petition the

court t o disqualify a subsequent appointee only upon a showing of
cause.” As the Court of Appeal explained in Azteca, supra

, 121 Cal.App. 4th at page 1163

, the disqualification provision

“ confers on both parties the unqualified right to remove a proposed arbitrator based on any disclosure required by law which could affect his or her neutrality. [Citation.] There is no good faith or good cause requirement for the exercise of this right, nor is there a limit on the number of proposed neutrals who may
be d isqualified in this manner. [Citation.] As long as the objection is based on a required disclosure, a party ’ s right to remove the proposed neutral by giving timely notice is absolute. ” ( F n. omitted; a ccord, Luce, Forward, Hamilton & Scripps, LLP v.

ethics stan dards for neutral arbitrators adopted by the Judicial Council pursuant to this chapter.

. . . [¶]

. . . [¶] (4) The names of the parties to all prior or pending noncollective bargaining cases involving any party to the arbitration or lawyer for a party for which the proposed neutral arbitrator served or is serving as neutral arbitrator, and the results of each case arbitrated to conclusion, including the date of the arbitration award, identification of the prevailing party, the names of the parties ’ attorneys and the amount of monetary damages awarded, if any. ”10

Koch (2008) 162 Cal.App. 4th 720, 729 ( Luce ) .) “ [ A party’s ] demand for disqualification of a proposed neutral arbitrator
therefore ha [s] the same practical effect as a timely peremptory challenge to a superior court judge under section 170.6

— disqualification i s automatic, the disqualified judge loses jurisdiction over the case and any subsequent orders or judgments made by him or her are void. ” ( Azteca

, at pp. 1169

- 1170.) However, “disqualification based on a disclosure is an absolute right only when the disclosure is legally required.” ( Luce , at p. 735.)
Neutral arbitrators (proposed or serving ) are also required to comply with the ethics standards for neutral arbitrators adopted by the Judicial Council. (§ 1281.85, subdivision (a) ; see Cal

. Ethics Standards for Neutral Arbitrators in Contractual Arbitration (Ethics S tandards) .) Further, s ection 1281.85, subdivision (c), provides that “[t]he ethics requirements and
standards of t his chapter are nonnegotiable and shall not be
waived.” The Judicial Council adopted the ethics standards in
2002 , explaining the purpose of the standards: “For arbitration to be effective there must be broad public confidence in the integrity and fairne ss of the process. Arbitrators are responsible to the parties, the other participants, and the public for conducting themselves in accordance with these standards so as
to merit that confidence. ” ( Ethics Standard s, std. 1( b ).) Standard 2(a)(1) (A) and (B) clarif ies that the standards apply to arbitrators selected by the parties or appointed by the court.
Ethics Standards, standard 7 (d) requires a “proposed
arbitrator or arbitrator ” to “disclose all matters that could cause

a pe rson aware of the facts to reasonably entertain a doubt that
the arbitrator would be able to be impartial .” Standard 7(d)11

includes as examples of required disclosures a family, “significant personal

, ” or attorney

- client relationship with a party or lawyer
in the arbitration ; a financial or other interest in the outcome of
the arbitration ; prior service as an arbitrator for a party or lawyer; and knowledge of “disputed evidentiary facts concerning the proceeding.” ( S td. 7(d)(2)

- ( 4 ), (7), (11)

- (13).) Stand ard 7(e) requires the arbitrator to disclose other matters relating to professional discipline and the arbitrator ’ s inability to conduct and complete the arbitration in a timely manner. Although the mandatory disqualification provisions of

s ection 1281.91

, subdivision (b)(1), appl y only to a “proposed
neutral arbitrator

, ” any neutral arbitrator (proposed or serving)

“ shall disqualify himself or herself upon the demand of any party made before the conclusion of the arbitration proceeding” if any ground for d isqualification in section 170.1 exists. (§ 1281.91, subd. (d).) Section 170.1, in turn, provides specific grounds for disqualification for a judge (and thus an arbitrator), including personal knowledge of disputed evidentiary facts concerning the

proce e d ing

, specified relationships with parties or lawyers in the proceeding, or a financial interest in the su b ject matter of the proceeding . (§ 170. 1 , subd. (a)(1)(A) , (3)(A), (4)

- (5) .) Further,
section 170. 1 , subdivision (a) (6)(A) , provides for disqualific ation if

“ (i) The judge believes his or her recusal would further the interests of justice. [¶] (ii) The judge believes there is a substantial doubt as to his or her capacity to be impartial. [¶ ] [Or, ] (iii) A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial. ” T he trial

court must vacate an arbitration award if the arbitrator “was subject to disqualification upon grounds specified in Section 1281.91 but failed upon receipt of timely dem and to disqualify12

himself or herself as required by that provision. ” ( § 1286.2, subd. (a)(6)( B ).) “ ‘ On its face, the statute leaves no room for discretion. If a statutory ground for vacating the award exists, the trial court
must vacate the award. ’ ” ( H oneycutt, supra , 25 Cal.App. 5th at

p p. 924

- 925 ; accord, Luce, supra

, 162 Cal.App. 4th at p. 730 .)

B. Standard of Review “‘“On appeal from an order confirming an arbitration award, we review the trial court’s order (not the arbitration award) under a de novo standard. [Citations.] To the extent that the trial court’s ruling rests upon a determination of disputed factual issues, we apply the substantial evidence test to those issues.”’” ( ECC Capital Corp. v. Manatt, Phelps & Phillips , LLP (2017) 9 Cal.A pp. 5th 885, 900; accord, Douglass v. Serenivision,
Inc. (2018) 20 Cal.App. 5th 376, 386 ; see Haworth v. Superior
Court , supra , 50 Cal.4th at p. 383 [reviewing de novo whether trial court properly vacated arbitration award based on
arbitrator’s failure to di sclose certain circumstances].) W e also
review de novo “ legal issue [ s ] involving statutory construction and the ascertainment of legislative intent.” ( Azteca, supra

, 121 Cal.App. 4th at p. 1164.)

C. T he Award Must Be Vacated Based on the Arbitrator’s
Failur e T

o Disqualify Himself Upon Ted’s Timely Demand As discussed, on March 13, 2018 Judge Shook disclosed two
arbitrations in March and September 2016 in volving the parties
and their lawyers in which Judge Shook was the neutral
arbitrator

, pursuant to section 1281.9, subdivision (a)

. Ted timely served his notice of disqualification based on the
disclosures on March 22, 2018

— nine days after service of the13

disclosure report

. Harry and Christine contend in their supplemental briefing 7 that J udge Shook was not required to
make disclosures under section 1281.9 , subdivision ( a ) , and Ted did not have a right to disqualify Judge Shook under section 1281.91, subdivision (b)(1) , because both provisions apply only to

a “pr o posed neutral arbitrator

. ” Harry and Christine assert Judge Shook was the appointed arbitrator, not a “proposed”
arbitrator because the parties had agreed in their 2012 arbitration agreement that Judge Shook would arbitrate “all
issues ” arising among the parties

. Ted responds that even though the parties agreed in 2012 that Judge Shook would serve
as the arbitrator and he had presided over the first arbitration, he still was “proposed” for purposes of this arbitration because he could have declined the engagement or be come unavailable, or matters could have arisen since the initial agreement that would
have affected his impartiality

. We agree with Ted that Judge Shook was a “proposed
neutral arbitrator” subject to the disclosure and disqualification requirements of sect ions 1281.9 and 1281.91. As the cover letter to his disclosure report made clear, the disclosures were made to the parties to confirm their acceptance of Judge Shook as the
arbitrator. The letter provided, for example, that Judge Shook
would entertain an d accept offers of employment with the parties and attorneys while the arbitration was pending “[i]f selected as
a neutral arbitrator.” Similarly, the letter concluded that if the parties proceeded to the scheduled hearing, that would “be

7 On January 8, 2021 we requested the parties provide supplemental briefing on whether Judge Shook was a “proposed neutral arbitrator” pursuant to section 1281.91, subdivision (b)(1). The parties filed supplemental briefs on January 18.14

deemed acknowled gment of

. . . your acceptance of the
arbitrator.” As the proposed neutral arbitrator, Judge Shook was legally required to make the disclosure s set forth in his disclosure report
, and Ted ha d an absolute right to disqualify him without

cause. ( Luce, supra , 162 Cal.App. 4th at p. 735 ; Azteca, supra

, 121 Cal.App. 4th at p. 1163 ; see § 1281.91, subd. (b)(1). ) But despite Ted’s notice of disqualification, the arbitrat or refused to disqualify himself. The trial court was therefore required to
vacate the aw ard u nder section 1286.2, subdivision (a)(6)(B),
because the arbitrator “ was subject to disqualification upon grounds specified in Section 1281.91 , but fail ed upon receipt of timely demand to disqualify himself or herself as required by that provision

. ”
Ha rry and Christine contend the trial court properly confirmed the arbitration award because Ted stipulated in the arbitration agreement for Judge Shook to serve as the arbitrator and “not to contest that Judge John P. Shook will arbitrate all
issues with bi nding authority,” so Ted could not withdraw his consent simply because the arbitrator ruled against him. But the parties to an arbitration agreement cannot contract away their statutory right to disqualify an arbitrator pursuant to section
1281.91. (

Azteca, supra

, 131 Cal.App. 4th at p. 1160.)
The Court of Appeal’s opinion in Azteca is instructive

. There, the parties agreed to private arbitration pursuant to construction industry dispute resolution procedures that provided , upon receiving an objection to an arbitrator, the American Arbitration Association (AAA) would make a conclusive
determination whether to disqualify the arbitrator. ( Azteca,

supra , 121 Cal.App. 4th at p. 1160.) Plaintiff Azteca15

Constructio n, Inc.

, demanded disqualification of the proposed arbitrator pursuant to section 1281.91, but the AAA decided there was no good cause for the disqualification and affirmed the appointment of the arbitrator. The trial court denied Azteca’s
motion to vacat e the arbitration award, finding Azteca had waived its right to disqualify the arbitrator by agreeing to the AAA rules. (

Azteca

, at p. 1162.) The Court of Appeal reversed, explaining, “While the parties may be free to contract among
themselves for altern ative methods of dispute resolution, such
contracts would be valueless without the state’s blessing. Because it imbues private arbitration with legal vitality by sanctioning judicial enforcement of awards, the state retains
ultimate control over the ‘stru ctural aspect[s] of the arbitration’ process. [Citation.] The critical subject of arbitrator neutrality is a structural aspect of the arbitration and falls within the Legislature’s supreme authority. [¶] Finally, the neutrality of
the arbitrator is of such crucial importance that the Legislature cannot have intended that its regulation be delegable to the unfettered discretion of a private business. ” ( Id

. at pp. 1167

- 1168.) “ Only by adherence to the Act’s prophylactic remedies can
the parties have confidence that neutrality has not taken a back seat to expediency.” ( Id

. at p. 1168.) We agree with the reasoning in Azteca

. Although federal and state law favor enforcement of valid arbitration agreements ( Armendariz v. Foundation Health Psychcare Services, Inc. (2000)

24 Cal.4th 83, 97 )

, the California Supreme Court has emphasized that certain “‘minimum levels of integrity’ [must] be achieved if
the [arbitration] arrangement in question is to pass judicial

muster ” ( Graham v. Scissor

- Tail, Inc. (1981) 28 Cal.3d 807, 825 ; accord

, Armendariz , at p. 103 ; see Honeycutt, supra

,16

25 Cal.App. 5th at p. 931 [“ The public deserves and needs to know that the system of private justice that has taken over large portions of California law prod uces fair and just results from
neutral decision makers. ”])

. As discussed, s ection 1281.9 is designed to ensure the neutrality of the arbitrator by enabling a party to disqualify the arbitrator for failure to make a required
disclosure or based on the dis closures. It is true, as argued by Harry and Christine, that Ted agreed Judge Shook would serve as the arbitrator, and nothing in the disclosure revealed information not previously known to Ted (that is, that Judge Shook was the arbitrator in the two prev ious matters). But section 1281.91 makes clear the arbitrator “shall” be disqualified upon the timely service of a notice of disqualification based on the
disclosure statement

, without requiring a showing of good cause

. Under Harry and Christine’s read ing of section 1281.91, once the parties agreed not to contest Judge Shook serving as the arbitrator, the parties would be limited in their ability to object to Judge Shook based on any changed circumstances since the parties had stipulated to the arbi tration agreement in December
2012. For example, Judge Shook could have accept ed repeat referrals from the attorneys for one side of the dispute with the opposing party having limited recourse despite the possible impact of the referrals on his neutrality

. 8 This would be contrary

8 Ted could still have challenged Judge Shook based on any ground for disqualification under section 170.1 (applicable to proposed and serving arbitrators). T he acceptance of repeat referrals c ould fall wit hin section 170.1, subdivision ( a ) (6) (A)(iii) (“ [a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial”) , but this provision would not provide the certainty of disqualification afforded by the17

to the intent of the Legislature in enactin g section 1281.9 and
1281.91 “to inform and protect participants in arbitration, and to promote public confidence in the arbitration process.” ( Ethics
St an d ard s, std. 1(a); see Azteca, supra , 121 Cal.App. 4th at

p. 1167 .) Harry and Christine ’s reliance on Fininen v. Barlow (2006 )

142 Cal.App. 4th 185, 1 90

- 191 ( Fininen ) and Dornbirer v. Kaiser Foundation Health Plan, Inc. (2008) 166 Cal.App. 4th 831, 846 ( Dornbirer ) to argue the trial court has discretion whether to
vacate an arbitration award under section 1286.2 , subdivision ( a )( 6 ), is misplaced

. In Fininen , the arbitrator disclosed he had previously mediated a construction collection dispute involving appellant Mark Barlow , but the arbitrator failed to provide any specifics of the prior mediation. ( Fininen , at p. 188 .) Following the disclosures, Barlow and the opposing party waived any potential conflicts. ( I

bi d

. ) The Court of Appeal affirmed the tr ial
court’s denial of Barlow’s motion to vacate the arbitration award
because Barlow was a party to the nondisclosed case on which he
had access to his own file

, consented to proceed with the
arbitration based on the incomplete information

, and waited until after the arbitrator ruled against him to object to the arbitrator. ( Id . at p. 190.) On these facts the court concluded it would be
“absurd to construe section 1286.2, subdivision (a)(6) to require

t hat the arbitration award be vacated based on an incomplete or untimely disclosure

. ” ( Id . at pp. 190

- 191.)

mandator y disqualification provision of section 1281.91, subdivision (b)(1). We are not suggesting Judge Shook took any actions that created an actual conflict or affected his impartiality

, only that Ted had a right to disqualify him based on the disclosure state ment.18 Similarly, i n Dornbirer

, an arbitrator disclosed numerous prior arbitrations involving defendant Kaiser Permanente or its counsel, but the arbitrato r ’s disclosure did not contain complete
information on the details of the arbitrations, including the dates, the names of the attorneys, and the specifics of the award

. ( Dornbirer, supra , 166 Cal.App. 4th at pp. 840

- 841.) The Court of Appeal concluded the incomplete disclosure s under section 128 1.9 did not support vacatur because the plaintiff was on notice prior to the arbitration of the missing information but consented to the
arbitration and failed to raise an objection until after the
arbitrator ruled in favor of Kaiser. ( Dornbirer

, at p. 846.) The Court of Appeal explained the plaintiff’s remedy for the
arbitrator’s “ failure to meet the statutory disclosure requirements was to disqualify him on that basis before the arbitration commenced, not after the arbitration was over. ” ( Ibid. )
Unlike the appellants in Fininen and Dornbirer , Ted served a timely disqualification n otice before commencement of the
arbitration

. Further, both cases concerned the materiality of incomplete disclosures under section 1281.91, subdivision (a), for purposes of disqualification , not the absolute right to disqualification under section 1281.9 1, subdivision (b)(1) and (2), under which a party has a right to disqualify an arbitrator
without cause one time in a single arbitration

. Ted properly exercised his right to disqualify the arbitrator.

DISPOSITION

T he judgment is reversed and remanded with directions for
the trial court to vacate its order granting the petition to confirm19

the arbitration award , and to enter a new order vacating the
award

. Ted Roussos is to recover his costs on appeal.

FEUER, J.
We concur :

PERLUSS , P. J.

SEGAL , J.