Kibbitz Costs Kaiser Arb Award

Grabowski v. Kaiser Found. Health Plan, Inc., No. D076968 (May 10, 2021)

Plaintiff lost a medmal arbitration, in which she was pro se. During a break, while she wasn’t present, the arbitrator and defendant’s counsel had an ex parte conversation about the difficulties with the fact that plaintiff didn’t have a lawyer and her inefficacy as an advocate for herself. The lawyer and the arbitrator had a laugh about it. Unbeknownst to them, the conversation was recorded. Plaintiff’s mother, who had been recording the proceedings with her phone to make a record, had left it on during the break. 

Arbitrators, of course, are not supposed to have ex parte discussions with one party’s lawyers about the other party. Because such communications are a potential grounds for disqualification as facts that might reasonably give rise to a doubt over the arbitrator’s impartiality if known by an objective observer, an arbitrator is required to disclose them. See Code Civ. Proc.§ 1281.9(a). A failure to do so is, effectively, structural error meriting the vacation of an arbitration award even without any showing of prejudice. See § 1286.2(a)(6)(A).) Which is what happens here.

Reversed.

Inexcusable Neglect Can Still Merit a Continuance

Levingston v. Kaiser Foundation Health Plan, Inc., No. E066271 (D4d2 Aug 17, 2018)

This is some kind of whistleblower case against Kaiser Permanente. Kaiser moved for summary judgment. Plaintiff opposed. Her opposition included some inadvertently disclosed privileged document that apparently belonged to Kaiser. That got her counsel DQ’ed and her opposition struck. The court ordered former counsel not to discuss the document and continued the SJ hearing for six months to let plaintiff get new counsel.

Alter Ego Doctrine Is Not a Recipe to End-Around MICRA

Gopal v. Kaiser Foundation Health Plan, No. B259808 (D2d1 Jun. 23, 2016)

The court here upholds a granted summary judgment motion where an insurance plan was dismissed from a med-mal case due to lack of evidence that it was the alter ego of the principal defendants. Plaintiffs claimed a “single-enterprise” theory. I.e., that the various defendants, even if not in a clean vertical relationship, seriously abused the corporate form to perpetrate a fraud or accomplish an inequitable result. Plaintiffs didn’t show that here. Instead, they were using the alter ego theory to end around MICRA’s limitation on med-mal damages against heath care providers. The court notes that MICRA’s limits are not an “injustice” that can or should be remedied by ignoring the corporate form. They are, instead, a public policy determination by the California legislature, which courts must honor.

Affirmed.