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Haworth v. Superior Court

Issue Discussed: Bias/Evident Partiality

Submitted by Aluyah I. Imoisili

Date Promulgated: July 10, 2008

Issue Decided: Whether an arbitrator’s failure to disclose censure results in vacatur of an arbitration award for arbitrator bias under California law.

In Haworth v. Superior Court, a California Court of Appeals held that an arbitration award was properly vacated, under California law, where a neutral arbitrator failed to disclose that he had been censured by the California Supreme Court. Haworth v. Superior Court, 164 Cal. App. 4th 930, 943-44 (Cal. Ct. App. 2008).

The arbitration dispute reached the Court when Randal D. Haworth and The Beverly Hills Surgical Center (collectively, “Haworth”) sought a writ of mandate that the California Superior Court reinstate an arbitration award that found Haworth not liable for claims of medical malpractice and battery arising from an elective cosmetic lip surgery that Haworth conducted on Susan Amy Ossakow. Id. at 934. Prior to the arbitration hearing, the neutral arbitrator, a retired Los Angeles Superior Court Judge, sent a “Disclosure” revealing that he had been involved in litigation with Haworth’s counsel’s law firm, but disclosed nothing else. Id. at 935. After receiving the arbitration award dismissing her claims, Ms. Ossakow discovered that the neutral arbitrator, while serving as a judge, had been publicly censured by the California Supreme Court “for making sexually explicit remarks, ethnic slurs, and derogatory comments to or about his female employees and colleagues based on their physical attributes.” Id. at 935-36. Ms. Ossakow moved to vacate the arbitration award on the grounds that California Code of Civil Procedure 1281.9 required the neutral arbitrator to have disclosed his censure because it revealed his bias towards women based on their physical appearance and raised concerns about his ability to be impartial in her case. Id. at 936. After the Los Angeles Superior Court granted Ms. Ossakow’s motion, Haworth sought the writ of mandate.

The Court of Appeals denied Haworth’s petition. The Court reasoned that because a reasonable person, apprised of the fact that the arbitrator received censure for disparaging women for their physical attributes, would “harbor doubts as to [the arbitrator’s] ability to be impartial” in a case involving a woman’s allegation that her physical appearance was damaged a cosmetic’s surgeon’s malpractice, disclosure was required. Id. at 939, 943-44. The Court rejected Haworth’s argument that the arbitrator had no duty to disclose the censure because it was in the public records, holding instead that the arbitrator bears the burden of disclosure. Id. at 939-41. The Court also disagreed with Haworth’s suggestion that censure is solely intended to promote confidence in the judiciary, urging that censure may also be considered in assessing an arbitrator’s impartiality. Id. at 941-43.