This Was a Terrible Strategy

Malek Media Grp. v. Axqg Corp., No. B. 299743 (D2d3 Dec. 16, 2020)

After losing an arbitration about the dissolution of a partnership, Loser did a deep Internet dive on the arbitrator’s background. It discovered that, many decades ago, the arbitrator was involved with a prominent gay rights organization. According to Loser, because the case purportedly involved sexual harassment by Loser, who is purportedly Catholic, and because gay rights proponents have some kind of purported relationship to #metoo or to hostility against the Catholic church, Arbitrator should have disclosed the relationship under Code of Civil Procedure § 1281.9(a). And then this failure to disclose is purportedly a basis to vacate the arbitration.

But potential arbitrators are only required to disclose facts that would cause a disinterested, objective observe to have doubts as to the arbitrator’s impartiality. It does not require disclosure of any fact that might concern a “partisan litigant emotionally involved in the controversy.” 

The Court finds Loser’s theory here to be ridiculous. (Or, more precisely, “strained and convoluted to say the least.”) The idea that the arbitrator’s involvement, decades ago, with an organization that supported a cause, which is arguably sympathetic with a different cause espoused by different organizations, whose views, if attributed to the arbitrator, might suggest some favoritism towards sexual harassment claimants or against Catholics, in a partnership dissolution case where Loser’s alleged sexual harassment was a minor and collateral issue and his Catholicism a nonissue is the kind of chain of crazy inferences that a rational disinterested observer would not draw. Were the disclosure standard to require otherwise, it would put a bullseye on every arbitrator for post-hoc allegation of inadequate disclosure by any losing party based on facts that could not possibly be even known to the arbitrator at the time of the disclosures.

Indeed, Loser’s argument is so far off the mark that the Court of Appeal awards sanctions for filing a frivolous appeal under Code of Civil Procedure § 907, which permits a sanction when any reasonable attorney would agree that the appeal is totally and completely without merit. Here, the Court finds Loser’s appeal to be “objectively and subjectively frivolous.” It was based on a series of dots, themselves largely unsupported by the evidence, that couldn’t be connected. 

It certainly did not help that Loser absurdly sought judicial notice of entire “the #MeToo” movement. Or that his whole theory was imbued with a deplorable bigotry. As the Court explains, the “Court of Appeal is not an appropriate forum to peddle far-fetched conspiracy theories, laced with sexism and homophobia, disguised as a legitimate appeal.”

Affirmed and sanctions awarded.