Arbitration: Court of Appeal, Fourth District, Division 3, Rejects Appellant's Argument that Arbitrator Needed to Disclose that His Parents Were German Jewish Refugees from Nazi Germany.

 

Court Affirms Judgment that Includes Arbitrator's Award of $1,136,000 in Attorney's Fees and Costs.

     The Hon. Stephen E. Haberfeld (Ret.), was valedictorian at UCLA, an articles editor at Harvard Law School, a law clerk on the U.S. Court of Appeals, 2^nd Circuit, an Assistant Watergate Special Prosecutor, and a U.S. Magistrate Judge. Acting as a JAMS arbitrator, in a dispute involving the Rebmann and the Rohde parties, Haberfeld awarded $1000 in damages to the Rebmann parties, and also awarded them a wopping $1,136,000 in attorney's fees and costs. Rebmann v. Rohde, G043665 (4^th Dist. Div. 3, June 28, 2011) (certified for publication). Apparently the attorney's fees award set off bells and whistles.

     Defendant/Appellant Peter Rohde informed the trial court that if only he had "known about his religious affiliation, his cultural affiliation, and the dedication to keeping the memory of the Holocaust alive, I never would have allowed him to be the arbitrator in my case." Mr. Rohde's father, and his wife's father served in the SS during WWII.

     Judge Luesebrink found that the defendants had not presented any evidence that Haberfeld had knowingly failed to disclose any material facts, issued a protective order preventing the defendants from taking Haberfeld's deposition, and confirmed the arbitration award. Defendants appealed.

     First, the Court of Appeal ruled that Haberfeld had no duty to disclose. The standard is not whether the arbitrator's background might have led defendants to question his ability to be impartial, but whether a person aware of the facts might have reasonably so believed. Here, "[t]here was nothing at all in the arbitrator's professional record that indicated bias toward Germans (or anyone else)."

     The Court was displeased that information about the arbitrator's background, available by Googling, was not raised as an issue until after defendants lost. "'[I]t is inappropriate to allow any party to 'trifle with the courts by standing silently by, thus permitting the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable,’" citing Dietz v. Meisenheimer & Herron, 177 Cal.App.4^th 771, 800 (2009).

     The Court also rejected the "tacit assumption" that "a judge who is a member of a minority cannot be fair when a case somehow related to that minority status – no matter how remote or tenuous that relationship might be – comes before that judge." "While defendants purport to rely on Haberfeld's 1939 Club involvement and family history," explained the Court, "they use these factors as a proxy for arguing that Haberfeld should have disclosed that he is Jewish and of German ancestry." (Curiously, all the parties to the arbitration, and the arbitrator, were of German ancestry.)

     We note in passing that attempts to remove a judge, because of religion, race, or ethnicity, have a history of failure.

     Item: Judge Constance Baker Motley, who was African American, a woman, and a former civil rights activist, explained the faulty logic in a case involving whether a female judge needed to recuse herself from hearing a sex discrimination case: "indeed, if background or sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this court could hear this case, or many others, by virtue of the fact that all of them were attorneys, of a sex, often with distinguished law firm or public service backgrounds. See Blank v. Sullivan and Cromwell, 418 F. Supp. 1, 4 (S.D.N.Y. 1976).

     Item: In U.S. v. El-Gabrowny, 844 F.Supp. 955 (S.D.N.Y. 1994), United States District Court Judge Mukasey refused to recuse himself "on the ground that I follow the precepts of Orthodox Judaism and hold Zionist political beliefs " The case involved a wide-ranging conspiracy to, among other things, bomb the World Trade Center, and vehicular tunnels in NYC. "The objection here is not based on race or sex or the Mormon religion, but the motion in this case is in all relevant ways the same as the motions in those cases; it is the same rancid wine in a different bottle."

     Item: More recently, in Perry v. Schwarzenneger (N.D. Cal., No.C-09 02292 JW, June 14, 2011), the effort to remove a judge based on minority membership surfaced with Judge Vaughn Walker, the federal judge who heard the case involving Prop. 8, California's no on same-sex marriages proposition, because Judge Walker is involved in a committed relationship with another man. Chief District Court Judge James Ware rejected the recusal effort. “The fact that a federal judge shares a fundamental characteristic with a litigant, or shares membership in a large association such as a religion, has been categorically rejected by federal courts as a sole basis for requiring a judge to recuse her or himself,” wrote Judge Ware.

     Second, the Court rejected the argument that it was error to quash the deposition subpoena of the arbitrator. Defendants never served the notice of appeal or the briefs on Haberfeld or his attorney. As a matter of due process, Haberfeld needed to be a party to the appeal. Moreover, an arbitrator's deposition may only be taken if the information sought is relevant to "a statement or conduct that could . . . give rise to disqualification proceedings . . ." Here, the arbitrator’s identity and family background constituted neither a statement nor conduct..

     Third, the Court rejected the notion that a statement of decision was required. A petition to confirm or vacate an arbitration award is not a trial, and therefore not subject to Code of Civ. Proc. § 632, governing the statement of decision requirement.

     The 3-0 opinion was authored by Justice Moore. Respondents were awarded costs on appeal.

     PRACTICE TIP: Cite legal authority and the record with specificity. The Court of Appeal (footnote 3) chastised appellants for their citations to the record, finding them to be "profoundly unhelpful to this court."

     HAT TIP: We thank our friend, attorney Susan R. Medwied, for bringing this opinion to our attention.