Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Petitioner Elina Shaffy 

 

RESPONDING PARTY: Respondents Gary Motykie MD and Surgery on Sunset 

 

BACKGROUND 

This action arises from an allegedly botched nasal surgery.  The central issue is whether Respondent Gary Motykie MD performed a procedure called “turbinectomy” on Petitioner Elina Shaffy.   

Turbinates are shell-shaped networks of¿bones, vessels, and tissue within the nasal passageways.  They are responsible for warming, humidifying, and filtering the air we breathe, and they are the first defense against bacteria and viruses.  Turbinectomy is a medical procedure in which all or part of the lower turbinate is removed.   

Turbinectomy is an aggressive measure and only appropriate in severe circumstances such as cancer which were not present in Petitioner’s case.  Therefore, there was no dispute that had Dr. Motykie performed a turbinectomy on Petitioner, that would fall below the standard of care.   

Petitioner claims that Dr. Motykie performed a turbinectomy, leaving her with a painful and irreversible condition called Empty Nose Syndrome (“ENS”).  She claims her turbinates were intact and healthy prior to her nasal surgery with Dr. Motykie and that they were missing afterward.  Petitioner contends that no other doctor could have removed her turbinates.  Petitioner has sued both Dr. Motykie and his surgical center, Surgery on Sunset (collectively “Respondents”), for medical negligence and battery. 

Dr. Motykie argues he did not perform a turbinectomy.  Rather, he performed a turbinoplasty.  Turbinoplasty involves changing the position of the turbinate by pushing the turbinate to the side to open up the nasal passage and improve airflow.  A turbinoplasty is also referred to as an “outfracture” of the turbinates.  Respondent argues that performance of this procedure was within the standard of care. 

The matter was submitted to arbitration pursuant to the parties’ agreement that “any dispute as to medical malpractice … will be determined by submission to arbitration …. Both parties to this contract … are giving up their constitutional rights to have any such dispute decided in a court of law before a jury and instead are accepting the use of arbitration.”  (Ex. A to Petition.)   

An arbitration was held before a panel of three arbitrators and lasted four days.  Petitioner’s case included testimony by petitioner, a retained expert witness and a treating doctor.  Respondents’ case included testimony from Dr. Motykie as well as one expert witness, Dr. Jeffrey Suh. 

Two arbitrators found in favor of Respondents, concluding that Dr. Motykie did not perform a turbinectomy.  In doing so, the arbitrators relied on “[Dr. Motykie’s] Operative Report, his sworn testimony, his not billing for a turbinectomy, and submitting any tissue to pathology.”  (Interim Award at pp. 13-14.)  The arbitrators also highlighted the significance of Respondents’ expert, Dr. Suh, who was described as “the most qualified, thorough and credible expert witness.”  (Interim Award at p. 14.)  One arbitrator dissented, raising procedural and evidentiary issues with the award, which Petitioner has now adopted as the bases for her petition to vacate the arbitration award.   

This hearing is on Petitioner’s motion to vacate the arbitration award.  Petitioner argues that her petition should be granted because (1) she was substantially prejudiced by the misconduct of the neutral arbitrator (Hon. Candace Cooper, Ret.) in allowing inadmissible evidence, failing to issue a timely final award and failing to submit admitted exhibits to the court reporter; (2) Cooper exceeded her powers by allowing Respondents to elicit testimony on standard of care from their expert, Dr. Suh, when Respondents never disclosed Dr. Suh as a standard of care expert and by requiring the parties to meet and confer on attorneys’ fees and costs when the parties’ agreement did not allow for such an award, and (3) Petitioner was substantially prejudiced by Cooper’s refusal to hear evidence material to the controversy, including a CT Scan of Petitioner’s nose which would have allegedly discredited Dr. Suh’s testimony that Petitioner had sinusitis rather than ENS and an unnamed impeachment witness that would have testified Dr. Motykie had a pattern and practice of removing turbinates and not properly documenting the procedure or sending the tissue to a pathology lab.      

LEGAL STANDARD 

Statutes set forth specific grounds upon which an¿arbitrator’s award may be¿vacated (Code Civ. Proc. § 1286.2) or corrected (Code Civ. Proc. § 1286.60).  Except on these grounds,¿arbitration awards are immune from judicial review in proceedings to challenge or enforce the award.¿(Moncharsh v. Heily & Blase¿(1992) 3 Cal.4th 1, 12-13;¿Zazueta v. County of San Benito¿(1995) 38 Cal.App.4th 106, 110.)  In deciding an application to vacate an arbitration award, every presumption is made in favor of upholding the arbitration award.  (Popcorn Equipment Co. v. Page (1949) 92 Cal.App.2d 448, 451.) 

An award may be vacated only for fraud, corruption, misconduct, an undisclosed conflict, or similar “circumstances involving serious problems with the award itself, or with¿the fairness of the arbitration process.”¿(Moncharsh,¿3 Cal.4th at 12, see¿§ 1286.2, subd. (a).)  “[B]y voluntarily submitting to arbitration, the parties have agreed to bear the risk [of uncorrectable legal or factual error] in return for a quick, inexpensive, and conclusive resolution to their dispute.” (Moncharsh,¿3 Cal.4th at 11.) 

An award may be set aside entirely if the court finds any of the following grounds,¿CCP § § 1286.2(a)(1)-(6): 

(1) The award was procured by corruption, fraud or other undue means. 

(2) There was corruption in any of the arbitrators. 

(3) The rights of the party were substantially prejudiced by misconduct of a neutral arbitrator. 

(4) The arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted. 

(5) The rights of the party were¿substantially prejudiced¿by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor or by the refusal of the arbitrators to hear evidence material to the controversy or by¿other conduct of the arbitrators contrary to the provisions of this title. 

(6) An arbitrator making the award either: (A) failed to disclose within the time required for disclosure a ground for disqualification of which the arbitrator was then aware; or (B) was subject to disqualification upon grounds specified in¿Section 1281.91¿but failed upon receipt of timely demand to disqualify himself or herself as required by that provision. However, this subdivision does not apply to arbitration proceedings conducted under a collective bargaining agreement between employers and employees or between their respective representatives…" 

[CCP § 1286.2(a)(1)-(6).] 

Limiting grounds for judicial review effectuates the parties’ agreement that the award be final.  It also reflects that arbitrators ordinarily need not follow the law and may base their decisions on “broad principles of justice and equity” -- "paths neither marked nor traceable by judicial review."¿(Moncharsh, 3 Cal.4th at 11;¿Nogueiro v. Kaiser Found. Hospitals¿(1988) 203 Cal.App.3d 1192, 1195.)   

The merits of the controversy are generally not reviewable by the court when a petition to confirm or vacate is presented.¿(Moncharsh, 3 Cal.4th at 11.)  Thus, courts will¿not review¿the sufficiency of the evidence to support the award.¿(Morris v. Zuckerman¿(1968) 69 Cal.2d 686, 691.) 

Nor will courts pass upon the¿validity of the arbitrator’s reasoning.¿The court simply may not substitute its judgment for that of the arbitrator.¿ (Morris v. Zuckerman, 69 Cal.2d at 691;¿Department of Pub. Health of City & County of San Francisco v. Service Employees Int'l Union, Local 790¿(1989) 215 Cal.App.3d 429, 433, fn. 4 (“we do not see any logic in the arbitrator’s [decision] … however … the arbitrator had the power [to so decide]”).) 

Finally, and most importantly here, errors of law are not reviewable.  Generally, errors of law committed by the arbitrator, no matter how gross, are not grounds for challenging the arbitrator’s award under California law.¿(Moncharsh, 3 Cal.4th at 11;¿Richey v. AutoNation, Inc.¿(2015) 60 C4th 909, 916;¿Baize v. Eastridge Cos.¿(2006) 142 Cal.App.4th 293, 300-302.)    

There are two reasons:  First, the parties contracted that the arbitrator’s decision, right or wrong, would be conclusive.  Second, the risk of arbitral error has been reduced by statutory provisions allowing courts to vacate or correct for “serious problems with the award itself or with the fairness of the arbitral process.”  (Moncharsh,¿3 Cal.4th at 12.) 

Thus, for example, awards have been upheld despite erroneous application of the doctrine of collateral estoppel, erroneous application of res judicata, consideration of inadmissible evidence and erroneous denial of attorney’s fees.  (See¿State Farm Mut. Auto. Ins. Co. v. Guleserian¿(1972) 28 Cal.App.3d 397, 402;¿see also¿Moore v. First Bank of San Luis Obispo¿(2000) 22 Cal.4th 782, 789;¿Moshonov v. Walsh¿(2000) 22 Cal.4th 771, 779.) 

TIMELINESS OF OPPOSITION 

Respondents’ opposition was untimely.  The opposition was served and filed on March 8, 2023, 36 days after the opposition was due.  The Court, however, exercises its discretion to consider the untimely opposition given counsel’s declaration that the untimeliness was due to a calendaring mistake and the opposition was filed on March 8, 2023, almost two months in advance of the hearing date on the petition, giving Petitioner sufficient time to file a reply addressing arguments raised in the opposition.   

DISCUSSION 

Substantial Prejudice by Arbitrator Misconduct 

Petitioner argues that Cooper engaged in the following misconduct which substantially prejudiced her rights: (1) admitting Dr. Motykie’s second operative report, (2) failing to timely issue a final award, and (3) failing to complete the arbitration hearing record by submitting admitted exhibits to the Court Reporter.  The Court addresses each alleged misconduct in turn.     

Dr. Motykie prepared two operative reports after the nasal surgery.  (Ex. F to Petition, 551-555; Ex. 101:61-64.)  Both operative reports were admitted into evidence.  One operative report describes the portion of the surgery to improve breathing (septoplasty and turbinplasty) which was potentially covered by insurance.  (Ex. F to Petition, 551-552.)  The other operative report describes the cosmetic portion of the surgery (revision rhinoplasty) which was not covered by insurance.  (Ex. F to Petition, 553-556.)  Neither operative report stated that Dr. Motykie performed a turbinectomy.  (Ex. 101:61-64.) 

Petitioner argues that Dr. Motykie’s second operative report was erroneously admitted as it lacked a date and time stamp and was not paginated and therefore could not be properly authenticated.  Petitioner has cited no authority that absent a date and time stamp or pagination, a document cannot be authenticated.   

More importantly, Respondent argues (and Petitioner does not dispute) that Petitioner did not even challenge the admission of the second operative report at the time of the arbitration hearing.  (Opp. at 4; Ex. F to Petition, at pp. 551-555.)  By failing to challenge admissibility at the time of the hearing, Petitioner has waived her right to object to authenticity.   

In any event, even if the arbitrator’s admission of evidence was erroneous, that alone cannot support a vacatur.  The award of an arbitrator has been held binding although it is reached upon consideration of inadmissible evidence.  (Frantz¿v.¿Inter-Insurance Exchange (1964) 229 Cal.App.2d 269, 275.) “The arbitrator has broad discretion in conducting the hearing and ruling on admission of evidence.  And he is not required to follow the rules of evidence and procedure.” (Evans v. Centerstone Development Co. (2005) 134 Cal. App. 4th 151, 164 (citations omitted).)   

Further, even assuming there was an error of law, Petitioner was not substantially prejudiced as she had the ability to (and did in fact) test the credibility of the report.  (See, e .g., Ex. F to Appendix, 576-578.)  The arbitrators simply were not persuaded by her arguments. 

Petitioner next argues that her rights have been substantially prejudiced because of Cooper’s failure to issue a timely award.  The petition does not explain why the award is untimely, when the award should have been issued to be timely, and how Petitioner has been substantially prejudiced.  The interim award is a final determination on the merits.  Certainly, the “failure” to issue a final award has not handicapped Petitioner’s ability to move to vacate the arbitration award, as she is doing so now. 

Petitioner also argues that her rights have been substantially prejudiced because Cooper has not submitted the admitted exhibits to the court reporter.  Petitioner, however, concedes Cooper identified the exhibits that were to be admitted: “Arbitrator Cooper stated in the Interim Award that Exhibits 1-10, 15-17, 101-118 were received into evidence.”  (Motion at 12.)  Moreover, there is no dispute that Petitioner had copies of all of these exhibits.  Accordingly, Petitioner has not shown how this alleged “failure” substantially prejudiced any of her rights.           

Exceeding Powers 

Petitioner argues that Cooper exceeded her powers and the award cannot be corrected without affecting the merits of the decision because Cooper (1) allowed Respondents to elicit testimony from Dr. Suh regarding the standard of care when Respondents never disclosed Dr. Suh as a standard of care expert, and (2) required the parties to meet and confer regarding attorneys’ fees and costs.  The Court disagrees that either ground supports a finding that Cooper exceeded her powers.   

JAMS’ Scheduling Order No. 2 requires counsel to “identify all non-rebuttal percipient and expert witnesses … by May 13, 2022.”  (Ex. D to Petition.)  However, the same scheduling order states “approval for supplemental witness identification may be requested from the arbitrator.”  (Id.)  There is no limitation on the time in which the arbitrator may approve a supplemental witness identification, suggesting she may do so even at the arbitration hearing.  Thus, Cooper was well within her authority to allow Respondents to supplement their witness identification during the arbitration hearing.  

Even assuming Cooper’s decision to allow Dr. Suh’s standard of care testimony was erroneous, the error was harmless.  Petitioner did not depose either of Respondents’ two experts prior to the arbitration.  The suggestion that Petitioner would have taken the deposition of Dr. Suh had the designation identified him as a standard of care expert is far-fetched.  Given the late supplementation, Cooper also allowed Petitioner an additional two days to prepare for the cross-examination of Dr. Suh.  There is no indication that Petitioner asked for more time or the opportunity to depose Dr. Suh.  (Ex. F to Petition, 467-468.)  Finally, Petitioner has not shown that had Respondents’ other expert (Dr. Harry Marshak), instead of Dr. Suh, testified about standard of care, the result would have been any different.  Because Dr. Marshak never testified at the hearing and Petitioner never deposed him, Petitioner has no basis to argue that Dr. Marshak’s testimony would have been materially different (and weaker) than the testimony of Dr. Suh. 

Petitioner next argues that Cooper exceeded her authority by ordering the parties to meet and confer on attorneys’ fees and costs.  Petitioner argues that the parties’ arbitration agreement does not allow for an award of attorneys’ fees and costs.  But there is no present award of fees and costs.  Accordingly, there is no showing that Cooper exceeded her powers by simply requesting the parties discuss fees and costs.          

Substantial Prejudice by Refusal to Hear Evidence Material to Controversy   

Petitioner argues that she was substantially prejudiced by Cooper’s decisions to (1) exclude a CT scan of Petitioner’s nose to discredit parts of Dr. Suh’s testimony, and (2) refusal  to allow an impeachment witness to testify that Dr. Motykie had a pattern and practice of removing turbinates and not properly documenting the procedure or sending the tissue to a pathology lab.   

As to the CT scan, while the petition explains the significance of the scan to discrediting Dr. Suh’s testimony which was central to the arbitration award, nowhere in the petition does Petitioner explain why Cooper’s exclusion of the scan for lack of foundation was in error.  In other words, Petitioner does not show how she established foundation for the scan but was nevertheless precluded from introducing it.  Respondents argue (and Petitioner does not dispute) that Petitioner made “no attempt [] to authenticate the CT scan and no attempt to lay the required foundation”.  (Opp. at 6.)  For this reason alone, the Court cannot conclude Petitioner was substantially prejudiced.   

As to the unidentified impeachment witness, the witness’ testimony was clearly material as it would have shown Dr. Motykie had a practice of removing turbinates without documenting it or sending it to the pathology lab.  Two of the stated bases for the arbitrators’ conclusion that Dr. Motykie did not perform a turbinectomy are (1) the operative report (which made no reference to a turbinectomy) and (2) the fact no tissues were sent to the pathology lab.  (Ex. G at 13-14.)  However, the arbitrators concluded Petitioner’s witness was not a proper impeachment witness, and the testimony should instead have been introduced in Petitioner’s case-in-chief.  (Ex. F at 838-839.)  Petitioner does not explain how this ruling was in error, or why she chose not to present the evidence in her own case-in-chief.  While the Court may not necessarily agree with the exclusion of this evidence, the Court cannot substitute its judgment for that of the arbitrators’ particularly where, as here, there is a reasonable basis for the ruling.  (See¿Advanced Micro Devices, Inc. v. Intel Corp.¿(1994) 9 Cal.4th 362, 375 (“Arbitrations may… be lengthy and complicated…. A reviewing court is thus not in a favorable position to¿substitute its¿judgment for that of the¿arbitrators as to what relief is most just and equitable under all the circumstances”).) 

 

Binding Arbitration 

Petitioner argues that the arbitration agreement does not specify that the arbitration award will be “binding,” nor does the arbitration agreement even mention the word “binding.”  Accordingly, Petitioner claims the Court should set aside the arbitration award as not all parties agree to the award.  The Court disagrees.  Whether or not the arbitration agreement mandated that an award would be binding, Petitioner clearly agreed that it would be binding by submitting a demand to JAMS which states that Petitioner “hereby demands that you [Dr. Motykie] submit the following dispute to final and binding arbitration.”  (Ex. L to Opp. at p.3 (emphasis added).) Further, neither silence nor ambiguity provides a sufficient basis for concluding that parties to an arbitration agreement agreed to undermine the central benefits of arbitration – i.e., a final binding, arbitration award.  (Western Bagel Co. Inc. v. Superior Court (2021) 66 Cal. App. 5th 649, 666.)  The party’s typical expectation under the¿California Arbitration Act (which governs the arbitration agreement at issue here) is that the¿arbitration award will be final and binding.  (Rosenson v. Greenberg Glusker Fields Claman & Machtinger LLP (2012) 203 Cal. App. 4th 688, 693.) 

CONCLUSION 

Based on the foregoing, the Court DENIES the petition to vacate the arbitration award. 

 

IT IS SO ORDERED. 

 

DATED: May 5, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court