March 5, 2009
Shaggy Cow Story
The California Court of Appeal for the Fourth Appellate Division, Division Three, affirmed an arbitration award, concluding that the trial court had not erred in declining to vacate the award because of alleged bias of the arbitrator. The dispute involved a second boat dock that the dissatisfied claimants marketed while selling their home on Harbor Island in Newport Beach. The buyers (who won the arbitration) claimed that the second dock was a misrepresentation concerning the conveyed property. Three days after the arbitration hearing, the attorneys for both sides attended a St. Patrick's Day party at Muldoon's Irish Pub that the arbitrator also attended. They all exchanged cordial greetings, mingled and parted amicably.
Counsel for the home sellers raised the bias issue after the adverse tentative decision of the arbitrator was released. He represented that he made inquiries that revealed that the arbitrator and opposing counsel "are both in the Celtic Bar Association and regularly attend meetings at Muldoon's..." and may have gone on a CLE trip to Scotland together. Opposing counsel responded that the 10 day Scotland trip was attended by 65 people and that he had had little contact with the arbitrator: "My wife and I were admiring the extraordinary sight of a herd of shaggy long haired cows standing in knee-deep mud in a pasture behind Culloden House when [the judge and others] approached us...We spent a few light moments exchanging comments, primarily about cows, and went on our separate ways."
The court here held that the trial court could reasonably have found insufficient evidence of bias. The common bar membership did not establish that they were "drinking buddies" as alleged. The fact that opposing counsel also had offered a paperback that he had finished reading to the arbitrator's spouse as they were returning from Scotland was also insufficient: "no reasonable person would view such a trivial travel courtesy with suspicion." (Mike Frisch)
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