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In California, any party may disqualify a arbitrator within 15 days of receipt of their disclosure form. CCP 1281.91. The right to disqualify is absolute, may be exercised without cause, and an unlimited number of arbitrators may be disqualified.

In a consumer arbitration, what recourse does the consumer have if the business decides to serially disqualify arbitrators in perpetuity?

From Roussos v. Roussos, 60 Cal. App. 5th 962, 275 Cal. Rptr. 3d 196 (2021):

Section 1281.91, subdivision (b), provides, “(1) If the proposed neutral arbitrator complies with Section 1281.9, the proposed neutral arbitrator shall be disqualified on the basis of the disclosure statement after any party entitled to receive the disclosure serves a notice of disqualification within 15 calendar days after service of the disclosure statement. [¶] (2) A party shall have the right to disqualify one court-appointed arbitrator without cause in any single arbitration, and may petition the court to disqualify a subsequent appointee only upon a showing of cause.” As the Court of Appeal explained in Azteca, supra, 121 Cal.App.4th at page 1163, 18 Cal.Rptr.3d 142, the disqualification provision “confers on both parties the unqualified right to remove a proposed arbitrator based on any disclosure required by law which could affect his or her neutrality. [Citation.] There is no good faith or good cause requirement for the exercise of this right, nor is there a limit on the number of proposed neutrals who may be disqualified in this manner. [Citation.] As long as the objection is based on a required disclosure, a party's right to remove the proposed neutral by giving timely notice is absolute.” (Fn. omitted; accord, Luce, Forward, Hamilton & Scripps, LLP v. Koch (2008) 162 Cal.App.4th 720, 729, 75 Cal.Rptr.3d 869 (Luce).) “[A party's] demand for disqualification of a proposed neutral arbitrator therefore ha[s] the same practical effect as a timely peremptory challenge to a superior court judge under section 170.6—disqualification is automatic, the disqualified judge loses jurisdiction over the case and any subsequent orders or judgments made by him or her are void.” (Azteca, at pp. 1169-1170, 18 Cal.Rptr.3d 142.) However, “disqualification based on a disclosure is an absolute right only when the disclosure is legally required.” (Luce, at p. 735, 75 Cal.Rptr.3d 869.)

Josh Johnson
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2 Answers2

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CCP § 1281.6 provides that a party may petition the court for the appointment of an arbitrator, if the agreed method fails to appoint an arbitrator.

Then under § 1281.91, one party may only disqualify without cause only one court-appointed arbitrator.

In extreme cases, a party may also petition to move the case to court if the other party is engaging in other dilatory conducts rising to the level of waiving arbitration.

Lerner v. Masterson:

  1. Petition to Appoint an Arbitrator

If a party to arbitration engages in dilatory conduct and an arbitrator has not been appointed, the other party may petition the trial court to appoint an arbitrator under section 1281.6. “In the absence of an agreed method [to appoint an arbitrator], or if the agreed method fails or for any reason cannot be followed, or when an arbitrator appointed fails to act and his or her successor has not been appointed, the court, on petition of a party to the arbitration agreement, shall appoint the arbitrator.” (§ 1281.6.)

Once an arbitrator has been appointed, the arbitration may proceed even without the participation of one of the parties: “If a court has ordered a person to arbitrate a controversy, the arbitrators may hear and determine the controversy upon the evidence produced notwithstanding the failure of a party ordered to arbitrate, who has been duly notified, to appear.” (§ 1282.2, subd. (e).)

The Engalla court concluded a trier of fact could find that the defendant's pattern of delay, which was arguably unreasonable or conducted in bad faith, waived the arbitration agreement and allowed the claimants to proceed in court. (Engalla, supra, 15 Cal.4th at p. 984.) The court emphasized that “the delay must be substantial, unreasonable, and in spite of the claimant's own reasonable diligence. When delay in choosing arbitrators is the result of reasonable and good faith disagreements between the parties, the remedy for such delay is a petition to the court to choose arbitrators under section 1281.6, rather than evasion of the contractual agreement to arbitrate. The burden is on the one opposing the arbitration agreement to prove to the trial court that the other party's dilatory conduct rises to such a level of misfeasance as to constitute a waiver [citation], and such waiver ‘is not to be lightly inferred' [citation].” (Id. at p. 984.)

xngtng
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CCP 1281.91 prevents a business from disqualifying arbitrators in perpetuity.

Contrary to your characterization, it does not allow the disqualification "without cause" of "an unlimited number of arbitrators." Instead, it permits each party to disqualify "one" arbitrator without cause. That party may then petition to disqualify subsequent arbitrators, but only "upon a showing of cause."

bdb484
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