A California appellate court held that an attorney's declaration that an arbitrator failed to make a required disclosure is not sufficient evidence to vacate the award for lack of disclosure in a construction arbitration case.

In Blank v. Bounds, No. G039284, 2008 WL 4147554 (Cal. Ct. App. Sept. 9, 2008), Blank contracted with Bounds to remodel Blank's home. The contract contained an arbitration agreement requiring arbitration through the Better Business Bureau (BBB). Blank was dissatisfied with Bounds's work, so Blank submitted claims to arbitration through the BBB, and Bounds submitted a cross-claim.

The arbitrator awarded Blank approximately $25,000 on his claim, but awarded Bounds approximately $75,000 on his cross-claim, thus awarding Bounds a net recovery of approximately $50,000. Blank moved to vacate the award on the ground that the arbitrator failed to disclose that both he and Bounds were members of the BBB. The only evidentiary support for the allegation of nondisclosure was a declaration from Blank's attorney. The attorney's declaration also asserted that the arbitrator exceeded his powers by awarding Bounds more damages than Bounds sought in the cross-claim.

The trial court denied Blank's motion to vacate and confirmed the award. The trial court held that Blank submitted no legal authority in support of his motion, and that Blank failed to submit sufficient evidence to support any of the grounds for vacatur set forth in Cal. Code Civ. Proc. § 1286.2. Blank appealed.

On appeal, the Court affirmed the trial court's decision. First, the Court noted that Blank never argued to the trial court that the arbitrator failed to make the specific disclosures required in consumer construction defect cases under Cal. Code Civ. Proc. § 1281.95(a). Second, Blank's motion was based entirely on the "scant declaration" of his attorney, which did not establish that the arbitrator failed to comply with § 1281.95. Furthermore, the Court observed that even if it were to consider the declaration as establishing the arbitrator's and Bounds's shared membership in the BBB, Blank still did not establish that the arbitrator failed to disclose those facts.

In addition, the Court found that Blank was on notice that the arbitrator had some professional relationship with the BBB because the arbitrator was selected to arbitrate the dispute through the BBB. Moreover, the Court noted that even if Blank had established that the arbitrator failed to disclose his membership in the BBB, that fact alone would not cause a person to reasonably doubt the arbitrator's impartiality.

Finally, the Court held that it would not consider Blank's claim that the arbitrator exceeded his power by awarding Bounds more than he had requested in his cross-claim because the record did not contain the cross-claim, the demand, or the record of the arbitration hearing itself. The Court stated that it was Blank's burden to make an adequate record and establish the trial court's error, and Blank failed to do so. Accordingly, the Court affirmed the trial court's decision to confirm the arbitration award.