Central to impartial decision-making by arbitrators and judges alike is the need for them to make disclosures that may give rise to a challenge to the judge's impartiality by one of the parties, even if the judge or arbitrator concludes that he or she is not disqualified. The responsibility of judges to make such disclosures is well codified under California law. Canon 3E(2) of the California Code of Judicial Ethics states:
"In all trial court proceedings, a judge shall disclose on the record information that is reasonably relevant to the question of disqualification under Code of Civil Procedure section 170.1, even if the judge believes there is no actual basis for disqualification."
For trial judges, noncompliance with this ethical disclosure requirement may subject the judge to discipline by the Commission on Judicial Performance. (Cal. Const., art. VI, § 18.) (La Serena Properties, LLC v. Weisbach (2010) 186 Cal.App.4th 893, 902; see also, Brown v. American Bicycle Group, LLC (2014) 224 Cal.App.4th 665, 667, [stating: “In the published portions of this opinion, we consider Brown's contentions that the trial judge erred in failing to disclose his “significant financial ties with the insurance industry,” and that her due process right to an impartial judge was violated. We conclude that the trial judge was not required to disclose his ownership interests in various insurance related companies, since none of those companies was a party to this case or a carrier of ABG's. We further conclude that there was no violation of Brown's due process right to an impartial judge.”]
“[W]e are aware of no authority, and Brown has cited none, that supports the proposition that a trial judge is required to make disclosures under Canon 3(E)(2) in order to enable a party to file a peremptory challenge under section 170.6. Both former and current Canon 3E(2) require a trial court to disclose information that is “reasonably relevant to the question of disqualification under Code of Civil Procedure section 170.1.” (Brown v. American Bicycle Group, LLC (2014) 224 Cal.App.4th 665, 672.)
Despite some differences between the policies underlying arbitral disclosure and those underlying judicial recusal, there is no reason to interpret the appearance-of-partiality rule more broadly in the context of arbitrator disclosure than in the context of judicial recusal. The language of both applicable statutes is virtually identical, and the judicial standard is explicitly made applicable to arbitrators. (Code Civ. Proc. 1281.9(a)(1) (proposed neutral arbitrator must disclose “[t]he existence of any ground specified in Section 170.1 for disqualification of a judge”).) It may be appropriate for an arbitrator to resolve doubts in favor of disclosure, but the arbitrator has no legal duty to do so. (Haworth v. Super. Ct. (2010) 235 P.3d 152, 166 n. 14 (stating, “In contrast, a trial court judge must “disclose on the record information that is reasonably relevant to the question of disqualification under Code of Civil Procedure section 170.1, even if the judge believes there is no actual basis for disqualification.” (Cal. Code Jud. Ethics, canon 3E(2).) The arbitrator has no equivalent duty. As noted above, the arbitrator's duty to disclose extends to matters that would require a judge to disqualify himself or herself. The arbitrator, however, is not required to disclose all matters that a judge would be required to disclose.”))
Before a judicial officer agrees to officiate at an attorney's wedding, the officer must carefully evaluate all factors that may potentially impact disqualification. These factors include the extent of the judge's involvement in the ceremony and in other related events; the nature of the parties' past and current social/personal relationship; any ties or connections with the families of the wedding party; and the nature of the issues pending or likely to come before the court. (See generally United Farm Workers, supra, 170 Cal.App.3d at 104–105.)
Because the act of officiating may raise reasonable questions about the relationship, this fact is a matter that must be disclosed for a reasonable time. (Cal. Code Jud. Ethics, canon 3E(2)(a); see Cal. Judges Assn., Jud. Ethics Com., Judicial Ethics Update (November 2012) at 3 [“A judge, who has no social relationship with an attorney other than performing the attorney's wedding, is required to disclose that he/she performed the wedding in any cases in which the attorney appears for a period of at least two years”].) Not only is this required by the California Code of Judicial Ethics, but from a practical standpoint the disclosure allows the attorneys a full opportunity to raise factors that may influence the court's assessment of whether disqualification is required under section 170.1(a)(6)(A)(iii). (Wechsler v. Superior Court (2014) 224 Cal.App.4th 384, 396-97.)
Pursuant to Canon 3E (2) of the Code of Judicial Ethics, Judge McAdam hereby discloses on the record that defendant Hector Absi was his former neighbor in Davis, California. It should be noted that before this disclosure was made, the Court analyzed the issue of disqualification.
Jan 11, 2017
Yolo County, CA
The Court makes this Disclosure as required by California Code of Judicial Ethics, Canon 3E(2)(a). This matter is on calendar for trial resetting. This matter was filed on January 5, 2018. The November 27, 2018 trial date was continued pursuant to stipulation. A jury trial has been demanded by both parties and jury fees have been posted. The parties have indicated a 4-5 day trial estimate.
Apr 08, 2019
Shasta County, CA
The Court makes this Disclosure as required by California Code of Judicial Ethics, Canon 3E(2)(a). This matter is on calendar for trial resetting. This matter was filed on January 5, 2018. The November 27, 2018 trial date was continued pursuant to stipulation. A jury trial has been demanded by both parties and jury fees have been posted. The parties have indicated a 4-5 day trial estimate.
Apr 08, 2019
Shasta County, CA
The Court makes this Disclosure as required by California Code of Judicial Ethics, Canon 3E(2)(a). Tentative Ruling on Order to Show Cause Re Monetary Sanctions: An Order to Show Cause Re: Sanctions issued on February 19, 2019 to Plaintiff for failure to timely serve the Amended Complaint on Defendant Shasta County. In light of the proof of service filed February 4, 2019 showing service of the Amended Complaint on Defendant, the Court declines to impose sanctions.
Mar 25, 2019
Shasta County, CA
The Court does not believe Judge Wood’s step-daughter or the Department of Child Support Services has any involvement in the investigation, management, prosecution or defense of this case but does disclose the employment relationship between named defendant County of Shasta and the Court’s first degree relative as required by California Code of Judicial Ethics, Canon 3E(2). properly sustained where the complaint fails to state facts sufficient to constitute a cause of action.
Oct 22, 2018
Shasta County, CA
The Court does not believe Judge Wood’s step-daughter or the Department of Child Support Services has any involvement in the investigation, management, prosecution or defense of this case but does disclose the employment relationship between named defendant County of Shasta and the Court’s first degree relative as required by California Code of Judicial Ethics, Canon 3E(2).
Dec 31, 2018
Shasta County, CA
GRANT DISQUALIFICATION, BECAUSE MCKAY DID NOT COMPLY WITH CCP 1281.9(a)(3) and (a)(4). PARTIES TO COMPLY WITH ALTERNATE ARBITRATOR SELECTION AS FOUND IN CMA. ARBITRATION CLAUSE NOT UNCONSCIONABLE AND COURT SEVERS FEE PROVISION. =(302/PHA/PB)
Jan 23, 2009
San Francisco County, CA
, a signed acceptance by that individual, and a proposed court order compliant with CCP §639.
Jun 15, 2018
Orange County, CA
The petition is GRANTED and the arbitration award is VACATED, under Code of Civil Procedure §§1286.2(a)(6), 1286.4, and 1281.9(a)(1), (5) and (6). The court has not considered any evidence of settlement negotiations and offers before the arbitration award, as such evidence is irrelevant and inadmissible under Evidence Code §§1152, 350 and 352. This case is ordered related to 17CV316384, which is petitioner’s original claim for uninsured motorist benefits, filed on 9/27/17.
Apr 19, 2018
Santa Clara County, CA
The court has considered the requirements of Canon 3E(1) and Canon 3E(2) and the California Judges Association Opinion 54 which provides guidance to judges who have served in a management capacity relating to litigation involving the court. In the current case, the court believes that disclosure but not recusal is the appropriate response as Mr. Plevin does not appear involved in the instant matter and the matters Mr. Plevin provided advice to court's counsel on are all completed.
Dec 13, 2018
Employment
Wrongful Term
San Diego County, CA
The court has considered the requirements of Canon 3E(1) and Canon 3E(2) and the California Judges Association Opinion 54 which provides guidance to judges who have served in a management capacity relating to litigation involving the court. In the current case, the court believes that disclosure but not recusal is the appropriate response as Mr. Plevin does not appear involved in the instant matter and the matters Mr. Plevin provided advice to court's counsel on are all completed.
Dec 13, 2018
Employment
Wrongful Term
San Diego County, CA
See CCP Section 1281.9(a)(3)-(9). 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. See CCP Section 1281.9(a)(1), (2); Cal. Rules of Court, Ethics Standards for Neutral Arbitrators in Contractual Arbitration (“Ethics Standards”).
Dec 13, 2017
Contra Costa County, CA
. §1281.9(a); Haworth v. Superior Court (2010) 50 Cal.4th 372, 381. The evaluation of impartiality is objective. There must be a specific identifiable reason for suspecting the arbitrator would not be impartial, but instead would favor one particular side. It does not matter if a litigant subjectively believes the arbitration might not be able to be impartial. Id. at 389.
Jan 29, 2019
Solano County, CA
The parties are to report back on 06/15/18 with (1) an agreement as to who will be appointed as the discovery referee or (2) two proposals for that side’s preferred referee, coupled with a curriculum vitae, a disclosure per CCP §1281.9, a signed acceptance by that individual, and a proposed court order compliant with CCP §639. See CCP §640. Parties shall exchange information on proposed referees at least 7 days prior to the hearing, so that objections per CCP §641 can be timely exercised.
May 18, 2018
Orange County, CA
(See CCP §§1281.9(a), 1286.2(a)(6).) Plaintiff’s counsel, James Orland, states in his declaration that the Arbitrator had been involved in a dispute with a swimming pool contractor in 1997, which was heard before an arbitrator in 2000—nearly 20 years ago. (Mot. at p.9; Orland Decl., ¶17, Ex. L.)
Aug 17, 2018
Los Angeles County, CA
CCP §1281.9(a). But, only if the matter "could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitration would be able to be impartial." Id. "The "person" referenced in this disclosure requirement concerning partiality is an objective, reasonable person. (Guseinov v. Burns (2006) 145 Cal.App.4th 944, 960, 51 Cal.Rptr.3d 903.)
Jun 15, 2016
Personal Injury/ Tort
Fraud
Ventura County, CA
CCP §1281.9(a). But, only if the matter "could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitration would be able to be impartial." Id. "The "person" referenced in this disclosure requirement concerning partiality is an objective, reasonable person. (Guseinov v. Burns (2006) 145 Cal.App.4th 944, 960, 51 Cal.Rptr.3d 903.)
Jun 15, 2016
Personal Injury/ Tort
Fraud
Ventura County, CA
(See CCP §§1281.9(a), 1286.2(a)(6).) Plaintiff’s counsel, James Orland, states in his declaration that the Arbitrator had been involved in a dispute with a swimming pool contractor in 1997, which was heard before an arbitrator in 2000—nearly 20 years ago. (Mot. at p.9; Orland Decl., ¶17, Ex. L.)
Oct 19, 2018
Los Angeles County, CA
(Id. at 1310 (quoting CCP section 1281.9(a)).) The disclosure requirement “involves an objective test that focuses on a reasonable person’s perception of bias and does not require actual bias.” (Id. at 1311.) “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.” (Id. (emphasis in original).)
Dec 13, 2016
Elaine Lu or Yolanda Orozco
Los Angeles County, CA
CCP § 1281.9(a)(6) & (b)(bold emphasis added). An award must be vacated if the court determines, inter alia, that the rights of a party were substantially prejudiced by the misconduct or bias of a neutral arbitrator. (Code Civ. Proc., § 1286.2, subds. (b) & (c).) The established test for making this determination when a party asserts prejudice because of an arbitrator's conflict of interest is whether the record reveals facts which might create an impression of possible bias.
Jul 12, 2019
Personal Injury/ Tort
Fraud
Los Angeles County, CA
(CCP § 1281.9(a).) “The question is not whether [the arbitrator] might actually be biased; the question is whether ‘a person aware of the facts might reasonably entertain a doubt that the [arbitrator] would be able to be impartial’ given the particular circumstances of the case. (Citation.) The test is an objective one-whether the facts might create an impression of possible bias in the eyes of the hypothetical reasonable person.” (Ceriale v. AMCO Ins. Co. (1996) 48 Cal.App.4th 500, 506.)
Aug 18, 2017
Orange County, CA
CJE Canon 3E(2)(a) states: “A judge shall disclose information that is reasonably relevant to the question of disqualification under [CCP] 170.1, even if the judge believes there is no actual basis for disqualification.” Rezaipour’s contention is unpersuasive. The operative words are “reasonably relevant.” As noted ante, case law does not support disqualification of a judge who receives local judicial benefits in cases involving the county.
Sep 06, 2018
Administrative
Writ
Los Angeles County, CA
Proc. 1281.9(a-b).) An arbitrator's failure to timely comply with these disclosure obligations may be grounds for vacatur of the arbitration award. (Ovitz v. Schulman (2005) 133 Cal.App.4th 830, 844-45.) Respondents contend the award should be vacated in this matter because the arbitrator failed to timely disclose the fact that he acted as co-counsel with Petitioner on an unrelated case in 2015. (Opp. at pp. 3-4.)
May 23, 2018
Other
Intellectual Property
San Diego County, CA
Arbitrator Nondisclosure and Bias General Disclosure Requirements: Pursuant to CCP §1281.9(a), “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 … (1) the existence of any ground specified in Section 170.1 for disqualification of a judge [and] (2) any matters required to be disclosed by the ethics
Jul 17, 2020
Orange County, CA
Prior to the issuance of a Temporary Restraining Order and Order to Show Cause Re: Preliminary Injunction, the Emergency Arbitrator failed to make the full disclosures required pursuant to CCP § 1281.9(a) and California Rules of Court, Ethics Standards 7(d)(15) relating to the Emergency Arbitrator’s knowledge of facts which “might cause a person aware of the facts to reasonably entertain a doubt that the arbitrator would be able to be impartial.” 2.
Oct 15, 2020
Other
Intellectual Property
Los Angeles County, CA
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