Judge: Armen Tamzarian, Case: 22STCV00057, Date: 2024-11-18 Tentative Ruling

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Case Number: 22STCV00057    Hearing Date: November 18, 2024    Dept: 52

Plaintiff Neil J. Bitton’s Petition to Vacate Arbitration Award and Request for Jury Trial

Plaintiff Neil J. Bitton moves to vacate the arbitration award issued in favor of defendant Airbnb, Inc.  Plaintiff argues the award must be vacated on three grounds under the Federal Arbitration Act (FAA) and for one other reason. 

Corruption or Fraud

            Plaintiff does not show “the award was procured by corruption, fraud, or undue means.”  (9 U.S.C. § 10(a)(1).)  He argues defendant’s counsel committed perjury during the arbitration.  He provides no evidence supporting that assertion.  He makes only a conclusory accusation in his declaration.  (Bitton Decl., ¶ 5.) 

Moreover, plaintiff gives no evidence or explanation of how any perjury affected the award.  Vacating the award because it was procured by fraud or undue means “requires a showing that the undue means caused the award to be given.”  (A.G. Edwards & Sons, Inc. v. McCollough (9th Cir. 1992) 967 F.2d 1401, 1403.)  Defendant shows the arbitrator issued an award against plaintiff because he did not appear at the hearing or present any evidence.  (Minor Decl., Ex. 23, p. 2.)  The arbitrator also ruled that the written evidence plaintiff submitted before the hearing was insufficient.  (Ibid.)  Plaintiff shows no reason why supposed perjury by defendant’s counsel impacted the award.

Partiality

Plaintiff does not show “evident partiality or corruption in the arbitrators.”  (9 U.S.C. § 10(a)(2).)  “ ‘Evident partiality may be found only “where a reasonable person would have to conclude that an arbitrator was partial to one party to the arbitration.” ’ ”  (National Football League Management Council v. National Football League Players Ass’n (2d Cir. 2016) 820 F.3d 527, 548.) 

Plaintiff argues the arbitrator was partial because defendant chose him.  Defendant presents evidence showing the American Arbitration Association (AAA) chose the arbitrator, Robert M. Dawson.  On October 3, 2023, AAA sent a letter to the parties stating, “Per the applicable Consumer Arbitration Rules, the American Arbitration Association (AAA) has made an administrative appointment of Robert M. Dawson to serve as arbitrator.”  (Minor Decl., Ex. 9.)  Plaintiff also does not show he made any objection to Dawson’s appointment.

Plaintiff also contends the arbitrator was partial because he had a financial interest in being repeatedly selected by defendant.  Courts have recognized the “repeat player” effect as a legitimate concern but have not applied it in the absence of evidence showing bias in the circumstances.  (See Mercuro v. Superior Court (2002) 96 Cal.App.4th 167, 179; Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 985-986.)  “ ‘[T]he party alleging evident partiality [in actual bias cases] must establish specific facts which indicate improper motives.’ ”  (Woods v. Saturn Distribution Corp. (9th Cir. 1996) 78 F.3d 424, 427.)  Plaintiff does not meet his burden.

Refusal to Postpone Hearing

            Plaintiff does not show the arbitrator committed “misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy.”  (9 U.S.C. § 10(a)(3).)  Plaintiff asserts the arbitrator refused to postpone the hearing despite plaintiff’s documented medical emergency.  The arbitrator, however, expressly considered plaintiff’s purported medical emergency and the evidence plaintiff submitted in support of his request to postpone or re-set the hearing.  (Minor Decl., Ex. 23, p. 2.)  The arbitrator ruled, “The contradictions in the evidence provided render it woefully short of constituting good cause.”  (Ibid.) 

The Arbitrator Was Not a Judge

            Finally, plaintiff argues the arbitrator was not qualified because he has never been a judge.  Arbitrators are not required to be judges.  Even if they were, plaintiff cites no authority that an arbitrator’s lack of qualifications constitutes a basis for vacating an arbitration award under the FAA.

Disposition

            Plaintiff Neil J. Bitton’s petition to vacate arbitration award is denied.