Eckstein v. Kaiser Foundation Health Plan

Filed 8/29/07 Eckstein v. Kaiser Foundation Health Plan CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

INTRODUCTION

Appellants Bushra and David Eckstein appeal from a judgment of the Contra Costa County Superior Court against them and in favor of respondents Kaiser Foundation Health Plan, Inc., The Permanente Medical Group, Inc., and Kaiser Foundation Hospitals (collectively Kaiser). The judgment confirmed an arbitrators award against the Ecksteins and in favor of Kaiser. On appeal, the Ecksteins contend the trial court improperly denied their petition to vacate the arbitrators award because the arbitrators membership in Kaiser Foundation Health Plan (Kaiser Health) was disqualifying information and a required disclosure under Code of Civil Procedure section 1281.9,[1] and the arbitrators failure to disclose such membership is a ground for vacating the award ( 1286.2, subd. (a)(6)(A)). The Ecksteins argue further that Kaisers failure to disclose the membership resulted in an arbitral award procured by fraud and undue means ( 1286.2, subd. (a)(1) & (3)). Additionally, the Ecksteins contend the judgment should be reversed because the trial court improperly failed to issue a statement of decision. We shall affirm the judgment.

PROCEDURAL AND FACTUAL BACKGROUND

The Ecksteins medical malpractice claim was sent to arbitration pursuant to the terms of the Ecksteins health plan agreement with Kaiser.

On November 18, 2003, the Ecksteins served Kaiser with a demand for arbitration. The Ecksteins claimed that a Kaiser physician had breached the standard of care during a July 3, 2003 gynecologic surgery performed on Mrs. Eckstein.

The Office of the Independent Administrator (OIA) administered the arbitration. OIA informed the parties that, under the Rules for Kaiser Permanente Member Arbitrations Administered by the Office of the Independent Administrator (OIA Rules), the parties had two options for selecting a neutral arbitrator. Under the first option, the Ecksteins and Kaiser would jointly select any neutral arbitrator of their choosing. Under the second option, the OIA would send the parties a list of randomly selected potential arbitrators from the panel of neutral arbitrators maintained by the OIA. Along with the list of potential arbitrators, the OIA would attach a copy of the application form that the enumerated arbitrators provided to the OIA. The parties would then rank the potential arbitrators in order of preference.

OIA also informed the parties that claimants seeking damages of more than $200,000 were entitled to party arbitrators. Normally, the fees and expenses of the neutral arbitrator would be divided between the parties. Under the OIA Rules, claimants entitled to a party arbitrator could waive their right to a party arbitrator and, in exchange, Kaiser would pay all of the neutral arbitrators fees and expenses. Moreover, in exchange for Kaiser paying the fees and expenses of the neutral arbitrator, claimants would be required to waive any present and future claims based on Kaisers payment of the fees and expenses of the neutral arbitrator.

The parties utilized the first option for choosing a neutral arbitrator and jointly selected retired Judge Richard Patsey. The parties agreed to Patseys appointment based on their prior experience with him and knowledge of his reputation. Patsey was not on the list of potential arbitrators supplied to the parties. Consequently, the parties did not receive a copy of the application form Patsey provided to the OIA.

The Ecksteins were entitled to select party arbitrators in addition to the neutral arbitrator.[2] The Ecksteins, however, opted to give up their right to a party arbitrator in exchange for Kaiser paying all of the sole neutral arbitrators fees. The Ecksteins and their counsel signed two waiver forms, one waiving the right to a party arbitrator and one waiving any objection to Kaisers payment of the sole neutral arbitrators fees and expenses.

Before the arbitration commenced, Patsey provided the parties with a standard Judicial Arbitration and Mediation Services (JAMS) disclosure form. Patsey disclosed that he had acted as the neutral arbitrator and as a dispute resolution neutral in cases involving Kaiser, counsel for Kaiser, and counsel for the Ecksteins. Patsey provided the parties with a list of those cases. Patsey stated that he did not have any other professional relationships with any party or partys counsel. He also stated that he did not have a significant personal relationship with any party or partys counsel and that there were no other matters that might cause a person aware of the facts to reasonably entertain doubt about his impartiality.

Patsey did not mention his Kaiser Health membership on the JAMS disclosure form. However, on a 25-five page list of cases identifying the cases in which Patsey had served as either a neutral arbitrator or other dispute resolution neutral that involved the parties or parties counsel, Patsey disclosed that he had acted as the neutral arbitrator in the case of B. v. Kaiser. That case involved counsel for Eckstein, counsel for Kaiser, and Kaiser. In B. v. Kaiser, unlike the arbitration between the Ecksteins and Kaiser, Patsey was on the list of arbitrators sent by OIA. Consequently, in B. v. Kaiser, OIA sent the parties a copy of Patseys application to the OIA. In that application form, Patsey disclosed his Kaiser Health membership and stated that he did not feel his membership would affect his ability to decide cases where Kaiser was a party.[3] Patsey was chosen as the neutral arbitrator in B. v. Kaiser. Counsel for the Ecksteins did not recall reading Patseys application when choosing a neutral arbitrator for B. v. Kaiser and stated that in that case he ranked Patsey number one on the list of potential neutral arbitrators because of his experience with Patsey in a trial where Ecksteins counsel represented the other party and Patsey served as the trial judge.

After receipt of Patseys JAMS disclosure form in this case, neither the Ecksteins nor Kaiser raised an objection to Patseys appointment as the sole neutral arbitrator. On March 1, 2005, the arbitration between the Ecksteins and Kaiser commenced. The arbitration continued until March 17, 2005. On April 7, 2005, Patsey found for Kaiser and issued a seven-page award explaining the reasons behind his decision.

On July 6, 2005, the Ecksteins filed a petition to vacate the arbitrators award on the ground that Patsey violated the disclosure requirements for neutral arbitrators set forth in section 1281.9. According to the Ecksteins, Patseys Kaiser Health membership constituted a ground for disqualification under sections 1281.9 and 1286.2, subdivision (a)(6)(A), and Patseys failure to disclose this disqualifying information required that the award be vacated. On July 18, 2005, the Ecksteins amended their petition to vacate the arbitrators award and added an alternative ground for vacating the award. The Ecksteins alleged that Kaiser knew of Patseys Kaiser Health membership, and, in view of the fact that Patseys Kaiser Health membership was disqualifying information, Kaiser likewise had a duty to disclose that information. The Ecksteins contended Kaisers failure to disclose the information amounted to procurement of the award by fraud and other undue means in violation of section 1286.2, subdivision (a)(1) and (3). On February 17, 2006, Kaiser filed a petition to confirm the arbitrators award. In response to the Ecksteins petition to vacate the arbitrators award, Kaiser argued that Patseys Kaiser Health membership was not disqualifying information; therefore, neither Patsey nor Kaiser had a duty to disclose the information and their lack of disclosure did not constitute grounds to vacate the award.

On March 10, 2006, the trial court heard the parties petitions to vacate and to confirm the arbitrators award. At the hearing, the trial court found that the facts were undisputed and the only evidence demonstrating a relationship between Kaiser and Patsey was Patseys Kaiser Health membership. The trial court noted that the Ecksteins did not present evidence of any contact between Patsey or any member of Patseys family and the physician who was the subject of the arbitration claim. The trial court stated that the only question before it was a question of law: whether an arbitrators Kaiser Health membership alone constituted disqualifying information such that disclosure of the membership was required. The trial court stated the arbitrators Kaiser Health membership did not meet any of the statutory grounds for disqualifying a neutral arbitrator because the membership was not a professional or personal relationship and the membership was not a matter that could cause a person aware of the facts to reasonably entertain a doubt about Patseys ability to be impartial.

On April 3, 2006, the trial court issued its separate orders, denying the Ecksteins petition to vacate the arbitrators award and granting Kaisers petition to confirm the award. Judgment was entered in favor of Kaiser and against the Ecksteins that same day.

On May 26, 2006, the Ecksteins filed a timely notice of appeal.

DISCUSSION

I. Arbitrators Duty to Disclose His Kaiser Health Membership

The Ecksteins contend the trial court improperly denied the petition to vacate the arbitrators award because Patseys Kaiser Health membership was disqualifying information and a required disclosure under section 1281.9, and Patseys failure to disclose such membership mandated vacation of the award ( 1286.2, subd. (a)(6)(A)). We disagree.

A. Previous disclosure to counsel not an issue on this appeal

As a threshold matter, we note that in the trial court, Kaiser contended that the Ecksteins waived any complaint about Patseys Kaiser membership because Patseys membership was disclosed to the Ecksteins counsel in materials forwarded to counsel in a different case. (See, ante, pp. 3-4 and fn. 3.) Although the Ecksteins refute this contention in their briefs on appeal, Kaiser has not raised this defense on appeal and we do not consider it.

B. Standard of review

Section 1286.2 sets forth the sole grounds for vacating an arbitration award. (Moncharsh v. Heily & Base (1992) 3 Cal.4th 1, 12; Harris v. Sandro (2002) 96 Cal.App.4th 1310, 1313.) Section 1286.2 provides that the court shall vacate the award if the court determines that the arbitrator making the award failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware. ( 1286.2, subd. (a)(6)(A).) Under California law, the general duty to disclose by a neutral arbitrator is set forth in section 1281.9, subdivision (a): 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 proposed neutral arbitrator would be able to be impartial. Section 1281.9, subdivision (a)(1) through (6), then enumerates specific activities identified by the Legislature as always giving rise to a reasonable doubt of impartiality.

Case law is unsettled as to what standard of review applies when a court reviews the trial courts decision as to whether an arbitrators relationship to a party or an attorney for a party satisfies the grounds for disqualification set forth in section 1281.9. Some reviewing courts apply a substantial evidence standard of review. (Michael v. Aetna Life & Casualty Ins. Co. (2001) 88 Cal.App.4th 925, 933.) Other courts review disqualification issues under an abuse of discretion standard. (Kaiser Foundation Hospitals, Inc. v. Superior Court (1993) 19 Cal.App.4th 513, 518; cf. People v. Alvarez (1996) 14 Cal.4th 155, 237 [recusal request].) In cases where the facts are undisputed, other courts apply a de novo standard of review. (Betz v. Pankow (1995) 31 Cal.App.4th 1503, 1508 (Betz); International Alliance of Theatrical Stage Employees, etc. v. Laughon (2004) 118 Cal.App.4th 1380, 1387 [waiver of disqualifying information], 1394 [disclosure under  1281.9 as a matter of statutory interpretation].) According to the courts that have applied a de novo standard of review, when the facts are undisputed, the only question before the reviewing court is interpretation of the governing disclosure statute and [i]t is axiomatic that the interpretation and application of statutes is a matter of independent review. (International Alliance of Theatrical Stage Employees, etc. v. Laughon, at p. 1387.)

Here, the trial court found that the facts were undisputed. Patsey, the sole neutral arbitrator, maintained a Kaiser Health membership, and Patsey did not disclose his membership to the Ecksteins. The trial court found there was no other evidence demonstrating a relationship between Kaiser and Patsey. Consequently, according to the trial court, the only question before it was a question of law: whether a neutral arbitrators Kaiser Health membership alone, in an arbitration involving Kaiser as a party, constituted a ground for disqualification under section 1281.9 such that disclosure of the membership was required. The trial court concluded that Patseys Kaiser Health membership, by itself, was not disqualifying information under section 1281.9. Therefore, Patseys failure to disclose his membership did not constitute a ground to vacate the award.

In the circumstances presented here, we believe the de novo standard of review is appropriate. As the trial court observed, the essential facts are undisputed. Consequently, only a question of law remains: in an arbitration involving Kaiser as party, does a neutral arbitrators Kaiser Health membership alone constitute a ground for disqualification under section 1281.9. Resolution of this issue depends upon interpretation of section 1281.9. It is axiomatic that the interpretation and application of statutes is a matter of independent review. (International Alliance of Theatrical Stage Employees, etc. v. Laughon, supra, 118 Cal.App.4th at p. 1387; see Betz, supra, 31 Cal.App.4th at p. 1508.)

C. Arbitrators Kaiser Health membership alone does not constitute disqualifying information under section 1281.9

The Ecksteins contend Patseys Kaiser Health membership constituted a ground for disqualification under section 1281.9, because the membership could cause a person aware of that fact to reasonably entertain a doubt about Patseys ability to be impartial. The Ecksteins also imply that Patseys Kaiser Health membership was disqualifying information under subdivision (a)(6) of section 1281.9, because the membership amounted to a professional and/or significant personal relationship between Patsey and Kaiser. We shall address each assertion separately.

1. Kaiser Health membership as a professional or significant personal relationship

Two sentences in the Ecksteins opening brief imply that Patseys Kaiser Health membership amounted to a professional and/or significant personal relationship between Patsey and Kaiser and, thus, was disqualifying information and a required disclosure under section 1281.9, subdivision (a)(6).[4] However, it is unclear from their appellate briefs whether the Ecksteins are indeed raising such an issue on appeal. Not only do they fail to cite any supporting authority, but they have not attempted to explain how a Kaiser Health membership amounts to a professional and/or significant personal relationship such that section 1281.9, subdivision (a)(6), would apply. The Ecksteins concede Patsey did not have a financial interest in the outcome of the arbitration arising from his Kaiser Health membership, and there is no evidence of interaction between Patsey or Patseys family members and the physician alleged to have committed medical malpractice in the underlying case. [T]he appellate court can treat as waived any issue that, although raised in the briefs, is not supported by pertinent or cognizable legal argument or proper citation of authority. [Citations.] (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006),  9:21, p. 9-6.) Appellants have waived this claim.

2. Patseys Kaiser Health membership does not cause a person to reasonably entertain doubt about his ability to be impartial

The Ecksteins contend Patseys Kaiser Health membership was a ground for disqualification under section 1281.9, subdivision (a), which provides that 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.

In order to determine the proper standard for disqualification under section 1281.9, subdivision (a), we look to the history of sections 1281.9 and 1286.2. Section 1286.2 sets forth the grounds for vacation of an arbitration award. Before the 2001 amendments, section 1286.2 stated in pertinent part: Subject to Section 1286.4 [conditions for vacation of award], the court shall vacate the award if the court determines any of the following: [] (a) The award was procured by corruption, fraud or other undue means. [] (b) There was corruption in any of the arbitrators. [] (c) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator. [] . . . [] (f) An arbitrator making the award was subject to disqualification upon grounds specified in Section 1281.9, but failed upon receipt of timely demand to disqualify himself or herself as required by that provision. (Stats. 1997, ch. 445,  4, pp. 2373.)

In Commonwealth Corp. v. Casualty Co. (1968) 393 U.S. 145 (Commonwealth), the United States Supreme Court construed nearly identical provisions for vacating an arbitration award under the United States Arbitration Act (9 U.S.C.  1-14). Title 9 of United States Code, section 10, provides in part:  (a) In either of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration[] (a) Where the award was procured by corruption, fraud, or undue means. [] (b) Where there is evident partiality or corruption in the arbitrators, or either of them. . . .   (Commonwealth, at p. 147, fn. 1.) Interpreting the statutory corruption grounds for vacating an arbitration award under the United States Arbitration Act, a plurality held that the arbitrators must disclose to the parties any dealings that might create an impression of possible bias.[5] (Id. at p. 149.) The plurality held that failure to make such disclosure constituted grounds for vacating an award; proof of actual fraud, corruption, or bias was not required. (Id. at p. 147.)

The California Court of Appeal adopted the Commonwealth impression of bias standard in Johnston v. Security Ins. Co. (1970) 6 Cal.App.3d 839, 841. Subsequent Court of Appeal decisions have applied and elaborated on the impression of bias standard in cases involving varying contexts. (E.g., Betz, supra, 31 Cal.App.4th at pp. 1506-1512; Kaiser Foundation Hospitals, Inc. v. Superior Court, supra, 19 Cal.App.4th at pp. 516-518; Banwait v. Hernandez (1988) 205 Cal.App.3d 823, 830-832 [that insurers law firm had represented neutral arbitrator in lawsuit did not create an impression of possible bias]; Figi v. New Hampshire Ins. Co. (1980) 108 Cal.App.3d 772, 776 [that neutral arbitrator had worked as accountant for partys arbitrator in unrelated cases created impression of possible bias]; Gonzales v. Interinsurance Exchange (1978) 84 Cal.App.3d 58, 61-67 [purely personal relationship between arbitrator and partys counsel did not create impression of possible bias]; San Luis Obispo Bay Properties, Inc. v. Pacific Gas & Elec. Co. (1972) 28 Cal.App.3d 556, 567-570.)

In Michael v. Aetna Life & Casualty Ins. Co., supra, 88 Cal.App.4th at page 936, the Court of Appeal reiterated that the California provision mandating disclosure by an arbitrator where a person aware of the facts [might] reasonably entertain a doubt that the [arbitrator] would be impartial incorporated the Commonwealth impression of possible bias test. The court extracted the following principles from California cases: Social acquaintance, even of long duration and of a personal nature, without a substantial business relationship does not create an impression of possible bias. [Citations.] Membership in a professional organization does not provide a credible basis for inferring an impression of bias. [Citations.] (Id. at pp. 939-940.) Moreover, to create an impression of possible bias that therefore requires disclosure, a business relationship must be substantial and involve financial consideration. (Id. at p. 940.)

In 2001, the California statutes governing arbitrator disclosure were amended. To section 1286.2, the Legislature added that an award must be vacated when [a]n arbitrator . . . failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware; . . . ( 1286.2, subd. (a)(6)(A), as amended by Stats. 2001, ch. 362,  7, pp. 2856-2857.) Moreover, the Legislature amended section 1281.9, subdivision (a), to provide a general duty to disclose by a neutral arbitrator: 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 proposed neutral arbitrator would be able to be impartial. ( 1281.9, subd. (a), as amended by Stats. 2001, ch. 362,  5, pp. 2855-2856.) The Legislature expressly stated these amendments were declarative of existing case law which provides that an arbitration award may be vacated when a neutral arbitrator fails to disclosure a matter that might cause a reasonable person to question the ability of the arbitrator to conduct the arbitration proceeding impartially. (Stats. 2001, ch. 362,  8, p. 2857.) Consequently, there is no fundamental difference between the disqualification standard in section 1281.9, subdivision (a), and the impression of bias standard. (International Alliance of Theatrical Stage Employees, etc. v. Laughon, supra, 118 Cal.App.4th at p. 1393.)

Betz, supra, 31 Cal.App.4th 1503, provides a comprehensive summary of the impression of bias test. In Betz, the appellate court explained that [a]n 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. at p. 1511.) [T]he dispositive issue is whether the record establishes a reasonable impression of possible bias on the part of the arbitrator and thus requires that the award be vacated. [Citations.] (Id. at p. 1506.) The test is an objective onewhether such an impression is created in the eyes of the hypothetical reasonable person. [Citations.] As the cases demonstrate, the test is also fact specific. There is no bright line of demarcation for the existence of an impression of possible bias, and each case must be considered in light of its particular circumstances. [Citation.] [] A frequent cause for an impression of possible bias is the existence of a present or past relationship between the arbitrator and a party, its counsel or its witness. [Citations.] Such a relationship suggests pecuniary interest on the part of the arbitrator or that the arbitrator will place unusual trust or confidence in the party with whom the relationship existed, thus giving the arbitrator reason to favor the party for reasons wholly unrelated to the merits of the arbitration. [Citation.] (Id. at pp. 1508-1509.)

The Ecksteins contend that the impression of bias standard is improper because it requires that a party allege actual bias. Moreover, they argue we cannot rely on California case law interpreting arbitrator disclosures that predated the 2001 amendments to section 1281.9, subdivision (a). We disagree.

The impression of bias standard does not require that actual bias be alleged. The dispositive issue under the impression of bias test is whether the record establishes a reasonable impression of possible bias on the part of the arbitrator. (Betz, supra, 31 Cal.App.4th at p. 1506, italics added.) As discussed ante, the Legislature expressly stated their 2001 amendments to the grounds for vacatur were declarative of existing case law. (Stats. 2001, ch. 362,  8, p. 2857.).) Consequently, California cases interpreting the impression of bias test and predating the 2001 amendments to section 1281.9, subdivision (a), continue to apply.

The Ecksteins contend Patseys Kaiser Health membership was disqualifying information under section 1281.9, subdivision (a), because the average Kaiser patient in the shoes of [the Ecksteins] might/could have reasonably entertained a doubt that [Patsey] would be able to be impartial. The Ecksteins concede that Patseys Kaiser Health membership did not give Patsey a financial interest in the outcome of the arbitration. The Ecksteins argue, however, that the average Kaiser patient could still reasonably entertain doubt about Patseys ability to be impartial because the average Kaiser patient might or could wonder whether the arbitrator has always received good care at Kaiser, whether special attention to the arbitrators medical needs is provided because he is an arbitrator, . . . or whether a successful emergency procedure saved the arbitrators life or someone close to the arbitrator. The Ecksteins submitted no evidence in the trial court regarding the experiences of Patsey or his family at Kaiser to provide any substance to these speculations nor did they present any evidence about the nature and extent of Patseys membership other than the fact of Kaiser Health membership.

As an initial matter, the Ecksteins frame the issue incorrectly. The [impression of bias] test is an objective onewhether such an impression is created in the eyes of the hypothetical reasonable person. (Betz, supra, 31 Cal.App.4th at p. 1508, italics added.) Consequently, the question is not whether Patseys Kaiser Health membership might cause the average Kaiser patient in the Ecksteins shoes to reasonably entertain doubt about Patseys impartiality. The question we consider is whether Patseys Kaiser Health membership, by itself, might cause a reasonable person to entertain doubt about Patseys impartiality.

We are not aware of any California authority precisely addressing the issue of whether an arbitrators membership in a health plan creates a reasonable impression of bias where the health plan is a party to the arbitration. Nevertheless, some guidance is found in California cases holding that an arbitrators membership in the same profession as a party to the arbitration does not provide a credible basis for inferring an impression of bias. (San Luis Obispo Bay Properties,Inc v. Pacific Gas & Elec. Co., supra, 28 Cal.App.3d at p. 567; Ray Wilson Co. v. Anaheim Memorial Hospital Assn. (1985) 166 Cal.App.3d 1081, 1088, disapproved on other grounds in Moncharsh v. Heily & Blase, supra, 3 Cal.4th at pp. 27-28.) We also find instructive cases from this jurisdiction and others that have addressed the closely related issue of whether a juror can be challenged for cause or a judge must recuse him or herself when the juror or judge maintains membership in a health plan that is a party to the litigation.

In Kimbley v. Kaiser Foundation Hospitals (1985) 164 Cal.App.3d 1166 (Kimbley), the plaintiff in a malpractice action appealed following a jury verdict in favor of defendant, Kaiser Foundation Hospitals. The sole question on appeal [was] whether subscribers to the Kaiser Foundation Health Plan should have been automatically excluded as jurors in [an] action against the plan or its related entities. (Id. at p. 1168.) The Court of Appeal held that Kaiser Health members should not be excluded from a jury where Kaiser was a party based solely on their Kaiser Health membership. (Ibid.) According to the court, [m]embership in a health plan is not, per se, an interest in the outcome of a case. It is at best a remote and tenuous connection, unlike, for example, stock ownership in an insurer-defendant. [Citation.] It is well settled that a remote or insignificant interest cannot support a challenge for cause. Customers of a defendant utility company may not be disqualified on the basis of their business dealings with that company. There must be some inquiry regarding the nature and extent of such a relationship. [Citation.] Even a physician-patient relationship between a juror and a doctor-defendant will not, by itself, justify disqualification. (Scott v. McPheeters (1942) 52 Cal.App.2d 61, 64-65.) (Kimbley, at p. 1171, fn. omitted.) The court noted, [w]hile actual bias [on the part of the juror] need not be shown . . . , actual interest must. Plaintiff never offered evidence of any interest [on the part of the juror-Kaiser Health members] in the event of the action or the main question of the action. (Id. at pp. 1171-1172.)

In Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 148 (Fein), the issue was not whether Kaiser Health members were rendered excludable for cause where Kaiser was a party to the case, but whether the trial court abused its discretion by discharging without individual examination prospective jurors who were Kaiser Health members because Kaiser was a party to the case. The California Supreme Court held that the trial court did not abuse its discretion in discharging the prospective jurors without individual examination. (Id. at p. 148.) The Court explained: [E]ven if membership in Kaiser is not itself disqualifying, it is not apparent that the trial court abused the broad discretion it retains over the jury selection process [citation] by excusing the members in this case. As its comments to the jury suggest, the [trial] court had apparently discovered through past experience that in this situation the individual voir dire procedure would prove very time-consuming and unproductive, with a substantial portion of the Kaiser members ultimately being subject to challenge by one party or the other. (Ibid.) According to the court, the trial court may reasonably have felt that the process of conducting an extensive voir dire of all Kaiser members might itself prejudice prospective jurors who did not belong to Kaiser. . . . [S]uch questioning would invariably involve the recounting of specific, potentially prejudicial incidents concerning the prospective jurors and Kaiser, as well as the exploration of the relative satisfaction or dissatisfaction with Kaiser of the particular jurors on this venire. Such matters would, of course, not be admissible in the actual trial of the case, and the [trial] court may have feared that such revelations on voir dire might taint all of the other prospective jurors in the courtroom. Under these circumstances, it cannot be said that the trial court abused its discretion in excusing the Kaiser members without individual examination. (Ibid.)

In Christiansen v. National Sav. and Trust Co. (D.C. Cir. 1982) 683 F.2d 520 (Christiansen), a case involving a determination of whether a fiduciary duty was owed to persons under a federal employee group health insurance program, the District of Columbia Circuit Court raised sua sponte the question whether federal judges who were or might be insured under the same plan should be disqualified from hearing and deciding the case. (Id. at p. 524.) The circuit court held that the interest of subscribing federal judges was too contingent and remote to warrant disqualification in the circumstances presented. (Id. at p. 526.) According to the court, a reasonable person would not question a judges impartiality to decide the case merely because he was a subscriber to the subject health insurance plan and a member of the class represented by the plaintiffs because there was no evidence that a subscribing judge would receive any monetary benefit from an outcome favorable to the plaintiffs. (Id. at pp. 525-526.) Moreover, the circuit court held that subscription in the subject health insurance plan did not amount to a financial interest or other substantial interest in the subject matter in controversy or in a party to the proceeding because the subscribing judges did not enjoy collective ownership of the plan, did not take proportionate management of the affairs of the plan, and did not participate in the profits and losses of the health plan. (Id. at p. 526.)

Our review of the cases addressing judge recusal and jury disqualification demonstrate that mere membership in a health plan is insufficient to cause a reasonable person to doubt the members ability to be impartial. Reasonable doubt about the members impartiality may arise when additional information regarding the nature and extent of the relationship is submitted. (Kimbley, supra, 164 Cal.App.3d at p. 1171.) Even in Fein, supra, 38 Cal.3d 137, where the California Supreme Court held that the trial court did not abuse its discretion by excusing, without individual examination, jurors who were Kaiser Health members, the courts decision did not depend on its doubt that the excused jurors could be impartial given their Kaiser Health membership. (Id. at p. 148.) The Fein court affirmed on the ground the trial court could reasonably find that individual voir dire of the Kaiser members would have resulted in a waste of time and judicial resources and could also result in taint[ing] the jury. (Ibid.) The trial court dismissed the Kaiser Health members because its experience in other cases had demonstrated extensive voir dire of Kaiser Health members was necessary before the member was subject to challenge by a party, and that extensive [individual] voir dire caused jury selection to become a time-consuming process. (Ibid.) The trial courts explanation supports that additional information regarding a Kaiser Health members actual experience with Kaiser is necessary in order for one to entertain a reasonable doubt about that members impartiality.

We conclude that on this record, Patseys Kaiser Health membership does not create a reasonable impression of bias and was not disqualifying information under section 1281.9, subdivision (a). A relationship that creates a reasonable impression of possible bias suggests a pecuniary interest on the part of the arbitrator or that the arbitrator will place unusual trust or confidence in the party with whom the relationship existed, thus giving the arbitrator reason to favor the party for reasons wholly unrelated to the merits of the arbitration. [Citation.] (Betz, supra, 31 Cal.App.4th at pp. 1508-1509.) The Ecksteins concede, and we agree, that Patseys Kaiser Health membership did not give Patsey a financial interest in the outcome of the arbitration. Moreover, we find that Patseys membership in Kaiser Health, by itself, is too attenuated to reasonably suggest that Patsey would place unusual trust in Kaiser and favor Kaiser for that reason. There is no evidence that Patsey was given special attention as a patient at Kaiser because of his role as an arbitrator, nor is there any evidence of contact between Patsy or his family and the subject physician. We refuse to speculate about possible scenarios arising from Patseys membership that could raise a reasonable impression of bias. On the record before us, which contains only the fact of Patseys Kaiser Health membership, no reasonable impression of possible bias exists.

We conclude that the trial court properly denied the Ecksteins petition to vacate the award; Patseys Kaiser Health membership by itself does not create a reasonable doubt as to his ability to remain impartial and, therefore, was not disqualifying information and a required disclosure under section 1281.9, subdivision (a).

3. Kaisers payment of all of Patseys arbitration fees pursuant to the parties agreement

On appeal, the Ecksteins attempt to advance a new theory in support of their contention that Patseys Kaiser Health membership was a ground for disqualification under section 1281.9, subdivision (a). The Ecksteins appear to contend that Patseys Kaiser Health membership could cause a person to reasonably entertain doubt about Patseys impartiality because Kaiser paid for all of Patseys arbitration fees. As the Ecksteins did not raise this theory in the trial court, we treat the issue as waived. (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486 [the right to complain on appeal may be waived if the issue was not raised in the trial court].)

Moreover, the record demonstrates that the Ecksteins expressly waived any objection based on Kaisers payment of Patseys arbitration fees and expenses. The Ecksteins were obliged to pay half of Patseys fees. They voluntarily and with the aid of counsel elected to give up their obligation to pay half of Patseys fees and shifted the cost to Kaiser. In exchange for bearing the complete cost of the arbitrator, Kaiser required that the Ecksteins execute a written waiver of any and all objections based on Kaisers payment of Patseys fees. The Ecksteins signed the waiver form, and Kaiser accepted the waiver and paid the fees in full. This express waiver is an additional basis for concluding that the Ecksteins new argument is barred on this appeal.

In any event, we note that the Ecksteins have not demonstrated how Patseys Kaiser Health membership relates to the alleged perception of bias that arises from Kaisers payment of his arbitration fees. Much of the Ecksteins argument relies solely on an inference of bias arising from Kaisers financing the cost of the arbitrators services and not from the fact that Patsey is a Kaiser Health member. For example, the Ecksteins concede that Patsey has no financial interest in the arbitration arising from his Kaiser Health membership; but, they argue the membership constituted disqualifying information because Kaiser paid all of Patseys arbitration fees and a reasonable person might conclude that Patsey has a financial interest in finding for Kaiser because he would wish to stay on Kaisers panel of arbitrators. The bias that is the focus of this argument arises from Kaisers payment of Patseys arbitration fees. The alleged perception of bias is not related at all to Patseys Kaiser Health membership. If the Ecksteins were concerned that shifting the cost of the arbitrator to Kaiser would create bias, they could have opted to pay half of Patseys fees. Instead, they chose to let Kaiser finance the cost of the arbitrators services. Tying a meritless claim regarding Patseys Kaiser membership to an expressly waived claim regarding Kaisers payment of the Ecksteins portion of the arbitrators fee does not advance the Ecksteins argument.

II. Vacation of Arbitration Award Based on Allegations of Fraud and Procurement of Award By Undue Means

The Ecksteins contend the trial court improperly denied their petition to vacate the arbitrator's award because Kaiser procured the award by fraud and other undue means. (1286.2, subd. (a)(1) & (3).)[6]

Subdivision (a)(1) states that the award is to be vacated if procured by corruption, fraud or other undue means. (Italics added.) The principle of ejusdem generis instructs that when a statute contains a list or catalogue of items, a court should determine the meaning of each by reference to the others, giving preference to an interpretation that uniformly treats items similar in nature and scope. [Citations.]. . .  [] This rule cautions against an overly broad interpretation of the term undue means. If the Legislature intended to permit an arbitration award to be vacated whenever the prevailing party engages in tactics that might in any way seem unfair, it would not have used the specific examples of fraud and corruption to describe the type of undue means it had in mind. (Pour Le Bebe, Inc. v. Guess? Inc. (2003) 112 Cal.App.4th 810, 826-827.) The term undue means . . . clearly connotes behavior that is immoral if not illegal. See Blacks Law Dictionary [at page] 1697 (Rev. 4th ed. 1968) (Undue means more than necessary; not proper; illegal, and denotes something wrong, according to the standard of morals which the law enforces. Undue influence means any improper or wrongful constraint, machination, or urgency of persuasion whereby the will of a person is overpowered.).  (Pour Le Bebe, Inc. v. Guess? Inc., at p. 831.)

A. Theories advanced in the trial court and on appeal

The Ecksteins argue Kaiser knew of Patseys Kaiser Health membership and Kaisers failure to disclose the membership amounted to procurement of the award by fraud and other undue means. According to the Ecksteins, Kaiser committed fraud in two separate ways.

First, they argue that Kaiser had a duty to disclose Patseys Kaiser Health membership because of the provisions of Patseys JAMS disclosure form. The JAMS disclosure form completed by Patsey required that the parties review the form and report any inaccuracies to the other party. On the JAMS form, Patsey indicated that there were no other matters that might cause a person aware of the facts to reasonably entertain doubt about his impartiality. The Ecksteins contend Patseys Kaiser Health membership was a matter that might cause a person aware of the facts to reasonably entertain doubt about Patseys impartiality; thus, Kaisers failure to correct this alleged inaccuracy amounted to negligent misrepresentation and fraud.

The form provision in question incorporated verbatim the disclosure requirement in section 1281.9, subdivision (a). As discussed ante, Patseys Kaiser Health membership was not a required disclosure under section 1281.9, subdivision (a). Therefore, Patsey accurately indicated that there were no other matters that might cause a person aware of the facts to reasonably entertain doubt about his impartiality. As the membership was not a matter covered under the JAMS disclosure provision, the disclosure form was accurate and Kaiser did not fail in its duty to cure inaccuracies on the form. Accordingly, we conclude that Kaiser did not fail its duty to cure inaccuracies on the JAMS disclosure form and Kaiser did not procure the award by fraud and other undue means in this fashion. (See Michael v. Aetna Life & Casualty Ins. Co., supra, 88 Cal.App.4th at p. 943 [where a person aware of the facts would not reasonably entertain a doubt that the appraiser would be able to be impartial, no disclosure was required by [the appraiser] and no corruption in an arbitrator provided a ground for vacating the appraisal award under  1286.2].)

We also reject the Ecksteins second theory of fraud based upon Kaisers alleged duty to provide a fair arbitral forum. The Ecksteins contend that an implied covenant of good faith and fair dealing arose out of the arbitration agreement and required Kaiser to provide a fair arbitral forum. The Ecksteins argue that a fair arbitral forum was not possible without disclosure of Patseys Kaiser Health membership, and further urge that Kaiser committed fraud and deprived them of a fair arbitral forum when it failed to disclose the membership. The Ecksteins have not alleged that Patsey was actually biased because of his Kaiser Health membership, but again contend disclosure was required because Patseys Kaiser Health membership created a reasonable impression of bias. We have rejected that contention. Consequently, we conclude that Kaisers failure to disclose Patseys membership did not deprive the Ecksteins of a fair arbitral forum and Kaiser did not procure the award by fraud or other undue means. Accordingly, the trial court properly denied the Ecksteins petition to vacate the award on that basis. (See Michael v. Aetna Life & Casualty Ins. Co., supra, 88 Cal.App.4th at p. 943.)

B. New theory advanced only on appeal

On appeal, the Ecksteins advance a new theory in support of their argument that Kaiser procured the award by undue means. The Ecksteins argue that Kaiser procured the award by undue means when Kaiser, without first advising the Ecksteins of Patseys Kaiser Health membership, accepted the Ecksteins waiver of the right to a party arbitrator and the Ecksteins waiver of objections based on Kaisers payment of the arbitrators fees. The Ecksteins contend the argument relating to the waiver of the right to a party arbitrator is not a new theory on appeal. However, their record citations do not indicate they raised this as a separate theory in the trial court, and the record shows that the Ecksteins never clearly raised this argument below. The fact that the Ecksteins petitioned this court to take judicial notice of their right to select a party arbitrator and the waiver form through which they gave up that right further supports our conclusion that this theory was not properly advanced in the trial court.

The Ecksteins concede that the argument relating to the waiver of objections based on Kaisers payment of Patseys arbitration fees is a new theory that was not raised in the trial court. However, they argue that we should consider the issue because new theories may be advanced on appeal when the issue posed is purely on a question of law, is based on undisputed facts, and involves important questions of public policy.

We conclude that both theories, one relating to the Ecksteins waiver of the right to a party arbitrator and the other relating to their waiver of objections based on Kaisers payment of Patseys arbitration fees, are new theories advanced on appeal. Neither theory involves important questions of public policy. As the Ecksteins did not raise these issues in the trial court, we treat the issues as waived. (See Hepner v. Franchise Tax Bd., supra, 52 Cal.App.4th 1475, 1486.)

III. Statement of Decision

The Ecksteins contend the judgment should be reversed because the trial court improperly failed to issue a statement of decision We disagree.

A. Trial court background

On February 24, 2006, the Ecksteins submitted declarations in support of their petition to vacate the arbitrators award. The declarations stated that they would not have accepted Patsey as the sole neutral arbitrator if they had known that the arbitrator was a Kaiser Health member at the commencement of the arbitration.

The Ecksteins submitted to Kaiser a request for admissions dated July 20, 2005, requesting that Kaiser admit Patsey was a Kaiser Health member when he was selected, at the time of arbitration, and at the time of the award. Kaiser submitted a response to the request, admitting these facts.

The Ecksteins submitted to Kaiser a second request for admissions dated January 4, 2006, requesting that Kaiser admit Patsey did not disclose he was a Kaiser Health member, Kaiser did not disclose Patseys membership after receipt of the JAMS disclosure form, and OIA did not disclose Patseys membership. Kaiser submitted a response to the request, admitting these facts.

On March 10, 2006, the Ecksteins filed a request for a statement of decision. In sum, the Ecksteins requested that the trial court address the following issues in the statement of decision: (1) whether the arbitrator was a Kaiser Health member when he was selected, at the time of the arbitration, and at the time of the award; (2) whether the Kaiser Health membership was disclosed; (3) whether Kaiser Health membership was a professional or personal relationship within the meaning of section 1281.9, subdivision (a)(6)[7]; (4) whether the Kaiser membership was a required disclosure under section 1281.9, subdivision (a); and (5) whether the proper standard for disqualification under section 1281.9, subdivision (a), was impression of bias.

The hearing on the Ecksteins petition to vacate the arbitrators award and on Kaisers petition to affirm the arbitrators award was held on the same day. The hearing was concluded in one day.

At the hearing, the trial court found that the facts were undisputed. The trial court then found that the Ecksteins had not shown either a professional or significant personal relationship between Kaiser and Patsey. Explaining the reasoning behind its conclusion, the court stated: Professional relationship does not meandoes not equal membership in Kaiser. A professional relationship with Kaiser, as all the cases talk about, means that they represented Kaiser in some capacity, in past arbitrations, or had some other arrangement where the party with whom the supposed professional relationship existed, hadhad a business relationship. The trial court continued: A professional relationship may exist between a patient and an individual doctor. It then noted that [t]here are hundreds if not thousands of doctors in the Kaiser system, and the Ecksteins did not submit any evidence that either Patsey or his spouse was treated by the doctor whose conduct was called into question.

The trial court also found that mere membership in Kaiser did not create an impression of bias and was, therefore, not a required disclosure. According to the trial court, everything in the universe does not have to be disclosed. It only has to be those things that a reasonable person might then draw a conclusion from, that this person might be biased. [] . . . [] Im analogizing it to the disclosures that are necessary in the judicial context, and its not required in that. [] Theres specific case law that holds that one doesnt, for example, have to disclose that you are a member of the Credit Union thats a party to the lawsuit, soI cannot see that this meets the statutory requirements.

The trial court then denied the Ecksteins request for a statement of decision. The Ecksteins argued that under section 632, and Betz v. Pankow (1993) 16 Cal.App.4th 931, they were entitled to a statement of decision because there were factual issues to be resolved. The trial court stated: I am not giving a Statement of Decision, because this is purely a legal issue. The facts are not in dispute. Ive looked at 1291 CCP and the cases cited therein, and it indicates that the trial court does not have an obligation to make Findings of Fact and Conclusions of Law if the only thing Im deciding is a legal issue.

On March 16, 2006, the Ecksteins filed another request for a statement of decision. This request reiterated verbatim the request for a statement of decision filed March 10, 2006.

On April 3, 2006, the trial court issued its separate orders denying the Ecksteins petition to vacate the arbitrators award and granting Kaisers petition to confirm the arbitrators award. In its order of denial, the trial court stated: [T]he Petition to Vacate the Arbitration Award is DENIED. The Court finds that mere membership in the Kaiser Foundation Health Plan is not sufficient to create an impression of bias. See Betz v. Pankow (1995) 31 Cal.App.4th 1503 and the cases cited in [Kaisers] brief.

B. Legal Discussion

The Ecksteins contend the trial court improperly denied their request for a statement of decision. According to the Ecksteins, there were factual issues left unresolved. The Ecksteins argue that whether the award was procured by fraud or other undue means required a factual determination. Moreover, the Ecksteins contend their declarations submitted on February 24, 2006 created issues of fact. Relying on Hutchins v. Galanda (1990) 216 Cal.App.3d 1529, the Ecksteins argue that the trial courts failure to issue a statement of decision requires reversal. We disagree.

First, we conclude that the trial court did not commit error in choosing not to issue a written statement of decision given the length of the trial and the trial courts detailed oral explanation behind its findings. Section 632 provides: In superior courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. . . . The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision. Section 632 further provides: The statement of shall be in writing, unless the parties appearing at trial agree otherwise; however, when the trial is concluded in one calendar day or in less than 8 hours over more than one day, the statement of decision may be made orally on the record in the presence of the parties. ( 632.) [D]etailed evidentiary analysis is not required by law. [Citation]. (Olen Commercial Realty Corp. v. County of Orange (2005) 126 Cal.App.4th 1441, 1452.) [A]ll that is required is an explanation of the factual and legal basis for the courts decision regarding the principal controverted issues at trial as are listed in the request. [Citation.] (Hellman v. La Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224, 1230.)

Here, the record shows that the trial concluded in one calendar day. Consequently, the trial court was at liberty to rely on an oral statement of decision, which it did, addressing the listed factual and legal issues. The requests asked that the trial court address the following issues in the statement of decision: (1) whether the arbitrator was a Kaiser Health member when he was selected, at the time of the arbitration, and at the time of the award; (2) whether the Kaiser Health membership was disclosed; (3) whether Kaiser Health membership was a professional or personal relationship within the meaning of section 1281.9, subdivision (a)(6); (4) whether the Kaiser Health membership was a required disclosure under section 1281.9, subdivision (a); and (5) whether the proper standard for disqualification under section 1281.9, subdivision (a), was impression of bias. On appeal, the Ecksteins do not argue that any of these five issues where left unresolved by the trial court. We agree that these issues were resolved by the trial court. The trial court addressed whether the arbitrator was a Kaiser Health member throughout the arbitration process and whether the Kaiser Health membership was disclosed when it stated that the facts were undisputed. Kaiser admitted and did not dispute that Patsey was a Kaiser Health member throughout the arbitration and disclosure process. Kaiser also did not dispute that neither Patsey, Kaiser, nor OIA informed the Ecksteins of the membership during the subject arbitration requests for admissions. Accordingly, the trial court properly found and stated that the facts were undisputed. The trial court also adequately addressed the remaining listed issues. The trial court provided detailed explanations regarding why Kaiser Health membership did not amount to a profession or significant personal relationship and why the membership did not create a reasonable impression of bias under section 1281.9, subdivision (a).

Second, the issues allegedly left unresolved were not properly specified in either of the Ecksteins requests for a statement of decision. Neither the March 10, 2006 request, nor the March 16, 2006 request, identified whether the award was procured by fraud or other undue means as an issue requiring a factual determination. Nor did the Ecksteins identify any facts stated in their declarations as raising any controverted issues requiring a factual determination other than those stated in the requests. Section 632 expressly requires that [t]he request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision. (Italics added.) The Ecksteins cannot, on appeal, argue that the trial court failed to respond to certain factual questions when they did not id