KAISER FOUNDATION HOSPITALS, A NON-PROFIT CORPORATION, et al. vs IRBY

26CV187141: KAISER FOUNDATION HOSPITALS, A NON-PROFIT CORPORATION, et al. vs IRBY 09/01/2026 Hearing on Motion to Confirm Arbitration Award in Department 514

Tentative Ruling - 08/26/2026 Julie Wilensky

For the reasons discussed below, the amended petition to confirm the arbitration award is GRANTED, and the cross-petition to vacate the arbitration award is DENIED.

BACKGROUND

On 5/7/2026, Kaiser Foundation Hospitals, Kaiser Foundation Health Plan, Inc., and The Permanente Medical Group, Inc. (collectively, “Kaiser”) commenced this action to confirm an Order Granting Summary Judgment (“Award”) issued by Hon. Timothy Volkmann (Ret.) (“arbitrator”) on 4/7/2026.

On 6/23/2026, the Court continued this matter to 9/1/2026 for pleading and service defects, and permitted Kaiser to file and serve an amended petition to confirm the Award by 8/4/2026. On 7/24/2026, Kaiser served Claimant and Respondent Littleton Steven Irby (“Irby”) with its amended Petition and supporting documentation. (Nguyen Decl. ¶ 2.) On 8/10/2026, Irby filed a cross-petition to vacate the Award. Due to inadvertent error by Kaiser’s counsel, the amended petition was not filed until 8/19/2026; however, the Court disregards this filing delay because the amended petition was timely served and there is no evidence of prejudice.

PROCEDURAL ISSUES

Irby filed the cross-petition to vacate after the 100-day statutory period expired on 7/16/2026. (See CCP § 1288.2.) In a supplemental memorandum filed on 8/19/2026, Irby noted the delayed filing and requested relief from the statutory deadline based on equitable tolling and other grounds, citing multiple unsuccessful efforts to file the petition.

The Court agrees that relief is warranted in these circumstances, and further notes that Kaiser has not asserted Irby’s cross-petition was untimely, thus forfeiting any argument as to timeliness. California courts have applied equitable tolling principles to other provisions of the California Arbitration Act. (See e.g., Law Finance Group, LLC v. Key (2023) 14 Cal.5th 932, 954-55 [holding that the doctrines of equitable tolling and estoppel could apply to the 100-day deadline under CCP section 1288.2 to vacate an arbitration award].) The Court addresses the parties’ arguments on the merits.

ARBITRATION AWARD

In January 2026, Irby submitted a demand for arbitration pursuant to the binding arbitration provision in Irby’s enrollment agreement with Kaiser. (Won Decl. Exs. A, B.) On or about 10/3/2025, Irby filed his operative demand asserting a cause of action for “delayed medical care/negligent care” to conform to the arbitrator’s 8/21/2025 order on Kaiser’s demurrer. (Won 26CV187141: KAISER FOUNDATION HOSPITALS, A NON-PROFIT CORPORATION, et al. vs IRBY 09/01/2026 Hearing on Motion to Confirm Arbitration Award in Department 514 Opp. Decl. Ex. 4.) Irby alleged that in 2023, Kaiser’s negligent delay in diagnosing and treating a serious infection in Irby’s right hand caused a preventable worsening of Irby’s condition and resulted in significant harm. (Id.)

On 12/17/2025, Kaiser filed a motion for summary judgment (“MSJ”) in the arbitration proceeding. Irby filed an opposition and Kaiser filed a reply. At the arbitrator’s invitation, Irby filed a supplemental response addressing issues raised in Kaiser’s reply. (Won Opp. Decl. Exs. 9-12.) Two days before the 3/27/2026 MSJ hearing, having reviewed the parties’ briefs and evidence, the arbitrator issued a detailed tentative ruling in favor of Kaiser. (Won Decl. Ex. C.) On 3/27/2026, the arbitrator held a telephonic hearing attended by all parties.

On 3/29/2026, the arbitrator issued a final ruling on the MSJ. After considering the parties’ arguments and admissible evidence, the arbitrator concluded that Irby did not provide admissible, legally persuasive expert testimony rebutting the opinions of Kaiser’s retained experts regarding the applicable standard of care, and granted the MSJ. (Id. Ex. D.)

Kaiser seeks to confirm the Award, which consists of the arbitrator’s Order granting Summary Judgment. Irby seeks to vacate the Award pursuant to Code of Civil Procedure (“CCP”) section 1286.2, subdivisions (a)(4) and (a)(5).

DISCUSSION

If apetition to confirm an arbitration award is filed, the court“shall confirm the award as made . . . unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding.”(CCP § 1286.)Thus, before confirming the award the Court must determine whether grounds exist to vacate the award.

Irby argues that the Court should vacate the award under CCP section 1286.2, subdivision (a)(4), on the ground that the arbitrator exceeded his powers and the award cannot be corrected without affecting the merits of the decision, and subdivision (a)(5), on the ground that Irby’s rights were substantially prejudiced by the refusal of the arbitrator to postpone the hearing upon sufficient cause being shown therefor. The Court addresses Irby’s arguments in turn.

A. Refusal to Postpone MSJ Proceedings (CCP § 1286.2(a)(5))

Legal Standard. The Court shall vacate the award if it determines that “the rights of the party were substantially prejudiced by the refusal of the arbitrators to postpone the hearing upon sufficient cause being shown therefor.” (CCP § 1286.2(a)(5).) “[W]hen, as here, an arbitrator exercises discretion in denying a continuance request, there are two issues to be resolved in vacatur proceedings. First, the trial court must determine whether the arbitrator abused his or her discretion by refusing to postpone the hearing upon sufficient cause being shown. Second, if there was an abuse of discretion, the trial court must determine whether the moving party suffered substantial prejudice as a result.” (SWAB Fin., LLC v. E*Trade Sec., LLC (2007) 150 Cal.App.4th 1181, 1198.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

26CV187141: KAISER FOUNDATION HOSPITALS, A NON-PROFIT CORPORATION, et al. vs IRBY 09/01/2026 Hearing on Motion to Confirm Arbitration Award in Department 514

Dispute. In support of its MSJ, Kaiser offered expert opinions by Dr. Benny Gavi and Dr. M. Eric Gershwin regarding the standard of care. (Won Decl. Ex. D at p. 2.) In opposition, Irby submitted a declaration by Nurse Leigh Massey, who opined that Kaiser fell below the standard of care. (Id.) In reply, Kaiser argued that Nurse Massey was not qualified to offer an opinion as to the standard of care for physicians and her declaration contained other defects and omissions. (Id. at p. 3.) With the arbitrator’s permission, Irby submitted a response that addressed Kaiser’s reply arguments including its objections to the Massey opinion. (Id.)

The arbitrator deemed the “major and defining issue” of the MSJ to be “the inadmissibility of the Massey opinions” submitted by Irby. The arbitrator concluded that no applicable case law allows a nurse to offer opinion testimony regarding the diagnosis and treatment provided by a physician, and absent a qualified expert, Irby failed to establish a breach of the standard of care or causation for his injuries. The arbitrator acknowledged Irby’s argument that Kaiser had known of the Massey declaration for several months and failed to advise as to its potential legal insufficiency, but explained that Kaiser had no obligation to advise Irby of potential challenges with his case, nor did Kaiser know what expert Irby would employ until it received Irby’s opposition to the MSJ.

Irby requested a continuance to locate a qualified expert, but Kaiser objected and the arbitrator denied the request. (Won Decl. Ex. D at pp. 3-5.)

Irby contends that the arbitrator caused substantial prejudice by denying his request to continue the MSJ hearing to locate, retain, and obtain an expert declaration from a physician on the standard of care issue. Irby also points to other factors that contributed to his alleged prejudice, including that Kaiser filed its MSJ while there were unresolved discovery disputes, and that despite the expert exchange deadline on 4/6/2026, Kaiser did not point out until 10 days before the MSJ hearing that Nurse Massey was unqualified. The Court disregards the former issue because it does not specifically pertain to the arbitrator’s denial of the continuance request, nor does Irby cite any legal authority establishing that open discovery disputes or deadlines necessarily establish prejudice; the latter issue was addressed in the Award.

Irby has not established that the arbitrator abused his discretion by denying the requested continuance. Irby cites Royal Alliance Associates, Inc. v. Liebhaber (2016) 2 Cal.App.5th 1092 in support of this argument, but Liebhaber is inapposite. There, the arbitration panel denied a party’s request to elicit further testimony from a witness who was present at the hearing, and did not address or decide the issue here, i.e., whether the denial of a request to postpone arbitration proceedings to obtain further evidence would be an abuse of discretion.

Irby did not submit an admissible expert opinion after having an equal opportunity as Kaiser to obtain such evidence. A litigant appearing in propria persona “is entitled to the same, but no greater, consideration than other litigants and attorneys” and “is held to the same restrictive rules of procedure as an attorney.” (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638–39.) Kaiser objected to Irby’s continuance request. Irby does not identify what evidence would have been presented if the continuance had been granted.

The Court therefore declines to find that the arbitrator abused his discretion by denying the continuance so that Irby could locate and retain an expert after the

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

26CV187141: KAISER FOUNDATION HOSPITALS, A NON-PROFIT CORPORATION, et al. vs IRBY 09/01/2026 Hearing on Motion to Confirm Arbitration Award in Department 514 parties had submitted their MSJ filings, including a supplemental response by Irby. Thus, the Court need not reach the question of whether the denial caused prejudice. The petition to vacate the Award is denied on this basis.

B. Arbitrator’s Authority (CCP § 1286.2(a)(4))

Legal Standard. The Court shall vacate the award if it determines that the arbitrator exceeded his powers “and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.” (CCP § 1286.2(a)(4).)

The Court’s power is limited. “Courts are authorized to vacate an award if it was “(1) procured by corruption, fraud, or undue means; (2) issued by a corrupt arbitrator; (3) affected by prejudicial misconduct on the part of the arbitrator; or (4) in excess of the arbitrator’s powers.” (Cohen v. TNP 2008 Participating Notes Program, LLC (2019) 31 Cal.App.5th 840, 868.) “The court may correct, as opposed to vacate, an award where ‘[t]here was an evident miscalculation of figures or an evident mistake,’ ‘[t]he arbitrators exceeded their powers but the award may be corrected without affecting the merits of the decision,’ or ‘[t]he award is imperfect in a matter of form, not affecting the merits of the controversy.’” (Ibid.)

“Arbitrators may exceed their powers when they act in a manner not authorized by the contract or by law, act without subject matter jurisdiction, decide an issue that was not submitted to arbitration, arbitrarily remake the contract, uphold an illegal contract, issue an award that violates a well-defined public policy, issue an award that violates a statutory right, fashion a remedy that is not rationally related to the contract, or select a remedy not authorized by law.” (Ibid.) “However, ‘[a]rbitrators do not ordinarily exceed their contractually created powers simply by reaching an erroneous conclusion on a contested issue of law or fact, and arbitral awards may not ordinarily be vacated because of such error.’” (Id. at 869.)

Dispute. Irby contends that the arbitrator exceeded his power by failing to determine the second of “two distinct theories” of medical negligence, and failing to resolve all issues in violation of CCP section 1283.4. Section 1283.4 requires the award to “include a determination of all the questions submitted to the arbitrators the decision of which is necessary in order to determine the controversy.”

Irby articulates the second theory of medical negligence as “corporate and administrative negligence.” (Pet. to Vacate, Att. 5, p. 8.) Kaiser disputes that Irby’s institutional or corporate liability theory presented a separate, distinct claim that section 1283.4 required the arbitrator to resolve. Kaiser’s position is persuasive based on the record before the Court. For example, on 8/21/2025 the arbitrator issued an order sustaining Kaiser’s first demurrer and instructing Irby to amend the claim to focus on existing theories and “not raise new theories.” (See Won Opp. Decl. Ex. 3 at ¶ 7.) Irby’s operative corrected second amended demand (“CAD”) acknowledged that Irby was asserting “a single cause of action for Delayed Medical Care and Negligence.” (Id. Ex. 4.) On 11/30/2025, the arbitrator’s order overruling Kaiser’s demurrer to the CAD stated that the

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

26CV187141: KAISER FOUNDATION HOSPITALS, A NON-PROFIT CORPORATION, et al. vs IRBY 09/01/2026 Hearing on Motion to Confirm Arbitration Award in Department 514 CAD “states a legally sufficient claim under the theory of Delayed Medical Care / Negligence.” (Id. Ex. 8.) In articulating this theory, Irby directs the Court to paragraph 6 of the CAD:

The negligent delay in care was compounded by other administrative failures during this period that evidenced a chaotic and substandard level of care, including the automatic ordering of unauthorized tests and the creation of false medical record entries. These facts provide context for the overall failure of Respondents’ systems to provide adequate and safe patient care.

(Pet. to Vacate, Ex. F at ¶ 6.) On its face, the above language does not articulate a separate, distinct claim requiring determination by the arbitrator; rather, it indicates that the administrative failures provided “context” for the inadequate care that Irby received. The arbitrator construed the CAD as presenting one claim for “delayed medical care/negligent care.” (Won Decl. Ex. D p. 2.) The Court respects the arbitrator's judgment on this point. (See Hightower v. Superior Ct. (2001) 86 Cal.App.4th 1415, 1439.)

Because the arbitrator did not leave separate claims undecided, this case is distinguishable from Kaiser Foundation Health Plan, Inc. v. Superior Court (2017) 13 Cal.App.5th 1125, 1131, cited by Irby. There, the arbitration panel only decided preliminary issues of “Medicare Act preemption and exhaustion,” but “left unresolved all of the other questions the arbitrators will have to decide in order to determine the parties’ controversy.” (Id.) Here, the arbitrator determined the merits of Irby’s claim for delayed medical care/negligent care, as articulated in the CAD.

For the foregoing reasons, the Court finds no basis to vacate the Award on the ground that the arbitrator exceeded his authority by leaving any claims undetermined. The cross-petition is DENIED on this ground.

ORDER

The amended petition to confirm the Award is GRANTED.

The cross-petition to vacate the Award is DENIED.

Kaiser shall lodge a proposed judgment within 7 days of this order.

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SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

26CV187141: KAISER FOUNDATION HOSPITALS, A NON-PROFIT CORPORATION, et al. vs IRBY 09/01/2026 Hearing on Motion to Confirm Arbitration Award in Department 514 1. Log into eCourt Public Portal 2. Case Search 3. Enter the Case Number and select “Search” 4. Select the Case Name 5. Select the Tentative Rulings Tab 6. Select “Click to Contest this Ruling” 7. Enter your Name and Reason for Contesting 8. Select “Proceed”

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