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Court of Appeal:
Alleging Arbitrator Was Affected by Medication Can’t Be Raised for First Time in Court
Declaring That Contention Was Forfeited, Justice Moore Says, ‘You Snooze, You Lose’
By a MetNews Staff Writer
An allegation that an arbitrator was under the influence of pain medication during proceedings before him cannot be raised in the trial court as a ground for vacating the award where an objection was not made during the arbitration, Div. Three of the Fourth District Court of Appeal has held.
Affirming a decision by Orange Superior Court Judge Gregory H. Lewis denying a motion to vacate a Nov. 15, 2018 award by arbitrator George P. Schiavelli (since deceased), Tuesday’s opinion by Justice Eileen C. Moore declares:
“The trial court denied the petition based on principles of forfeiture: the losing partners failed to demand—at any pouit during the nine-day hearing—that the arbitrator needed to disqualify himself. Absent the legal jargon, the term ‘forfeiture’ essentially means: ‘You snooze, you lose.’ We agree with the trial court.”
Allegation in Petition
Brian Alper, Brett Ballou, and How Sweet It Is Partnership said in their Feb. 22, 2019 petition to vacate:
“During the course of the arbitration case, when the parties submitted matters for ruling upon by Schiavelli, he did not render his decisions for months and by then appeared to have forgotten relevant facts and items of evidence. During the arbitration hearing. Schiavelli made it known to the parties that he was party to a personal injury action, that his injuries were causing him great pain, and that he was taking powerful painkillers that ‘would knock a horse out.’ Schiavelli regularly administered the painkillers throughout the course of the 9-day arbitration hearing.”
Schiavelli had cancer at the time and was suffering continually from pain resulting from an accident that necessitated hip and knee replacements. He had resigned from the U.S. District Court for the Central District of California in order to make money as an arbitrator and mediator to provide security for his family as his abilities waned, and died Aug. 31, 2019 from the after-effects of a stem cell transplant.
Moore said that Code of Civil Procedure §170.1(a)(7), which authorizes a motion to disqualify a judge who is “unable to properly perceive the evidence or is unable to properly conduct the proceeding,” applies to arbitrators, but concluded that “plaintiffs forfeited their contention the arbitrator was disqualified due to opioid use because plaintiffs did not raise the issue of impairment at any point during the arbitration proceedings.”
Statutory Requirement
She noted that §170.3(c)(1) provides that a challenge “shall be presented at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.”
The justice went on to observe:
“In any event, our review of the transcript indicates the arbitrator was fully engaged, asked relevant questions, and was able to ‘properly perceive the evidence’ and ‘to properly conduct the proceedings.’…Plaintiffs make much of the arbitrator’s alleged comment that he was taking medications that were ‘’powerful enough to put down a horse.’ But this is obviously humorous hyperbole that no one would have taken seriously (indeed, neither plaintiffs nor their attorneys took the comment seriously). Further, the arbitrator’s comprehensive written rulings also tend to validate the arbitrator’s ability to perceive the evidence and to apply the law.”
The case is Alper v. Rotella, 2021 S.O.S. 1986.
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