Appellant and attorney sanctioned a blistering $56,000 for their frivolous appeal. (Malek Media Group LLC v. AXGC Corp. (D2d3 Dec. 16, 2020) No. B299743.)
After a business dispute was decided against him, appellant decided to trawl the internet for dirt on the arbitrator, who, he discovered, was a founding member of GLAAD and maintained a Twitter account opining on "social justice" issues.
So appellant moved to disqualify the arbitrator and have the award thrown out. The grounds: the dispute involved, tangentially, an allegation that appellant sent sexually explicit text messages to two people (though not, apparently, to the respondent), thus warranting disqualification because of the arbitrator's "social justice" public comments and supposed endorsement of the #MeToo movement. Also: appellant is a Catholic, thus warranting disqualification of the GLAAD-affiliated arbitrator because GLAAD and the Catholic Church "were antagonistic to each other."
But it has long been the law that a judicial officer – whether a judge under CCP §§ 170.1 and 170.3 or an arbitrator under § 1281.9 – may not be disqualified merely due to the objector's hypersensitivity or undue suspicion. Instead, the eyes of "the partisan litigant emotionally involved in the controversy" are not the ones through which bias is measured.
For example, an unhappy litigant tried the same tactic, unsuccessfully, not ten years ago in Rebmann v. Rohde (2011) 196 Cal.App.4th 1283. The losing defendant trawled the web for dirt on an arbitrator who, defendant discovered, had lost family in the Holocaust and was a member of the "1939 Club" to prevent future Holocausts. Why was this objectionable? Because defendant's father had been in the SS.
Rebmann held that the arbitrator's personal connection with and opposition to the Holocaust was not grounds for disqualification, because there was no "particular reason" why the arbitrator should be biased against the defendant. Also significant to the analysis was the timing of the objection: "they should have done their Googling before the arbitration began," because litigants cannot "trifle with the courts by standing silently by, thus permitting the proceedings to reach a conclusion in which the party could acquiesce if favorable and avoid if unfavorable.”
Like the Fourth District in Rebmann, the Second District rejected appellant's claim of bias, as not even a close call. But unlike in Rebmann, Malek court imposed sanctions against the appellant. The Court found, concerning appellant's theory of bias, that there were "no dots to connect." But the Malek court went on to find appellant had "peddle[d] a far-fetched conspiracy theor[y], laced with sexism and homophobia." While the Court did not clearly connect the dots how this theory was more "far-fetched" or offensive than that in Rebmann, the Court added that appellant "has a history in this dispute of making frivolous claims," and had "adopted a war-like mentality" in the litigation. (A good example how overall litigation strategy can catch up with you.)
The Court imposed sanctions of $46,000 payable to the respondent, and $10,000 payable to the Court, both jointly and severally against both appellant and counsel. Counsel was also ordered to report the sanctions to the State Bar.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at [email protected] or (714) 641-1232.
