C. Respondents' Claims of "Fraud in the Application" and "Material Breach" Must Be Presented to the Arbitrator. Of course, respondents do not simply complain of fraud in the making of the arbitration provision. They also allege--and proved to the trial court's satisfaction--that Kaiser committed "fraud in the specific application" of the arbitration provision, i.e., during the course of performance under that provision in the arbitration proceedings below. In that regard, respondents claim that Kaiser intentionally stalled the process to avoid certain elements of damage that were available by contract and by statute while Mr. Engalla was alive, but were no longer recoverable once he died. We are unable to discern any legal basis for concluding that this type of "fraud" claim provides a basis for setting aside the arbitration agreement. The fraud which will justify rescission must induce the making of the contract; fraud related solely to performance will not suffice. (See Crow v. Kenworthy (1939) 30 Cal.App.2d 313, 315 [86 P.2d 154],; and see Civ. Code, @ 1689, subd. (b)(1).) >? So why not a breach of contract action? >? Kaiser's breach frees P from his performance. Respondents rely on Frey & Horgan Corp. v. Superior Court (1936) 5 Cal.2d 401, 404-405 [55 P.2d 203], and Weisman v. Johnson (1982) 133 Cal.App.3d 289, 295 [183 Cal.Rptr. 792], for their argument that breach of a "duty to cooperate" by a party to an arbitration agreement will suffice to prevent enforcement of the arbitration clause under a theory of "fraud in the application" of the arbitration clause. These cases cannot be stretched as far as respondents urge. They are more properly invoked in support of a claim of breach of the arbitration agreement or the covenant of good faith and fair dealing implied therein. n16 >? That sounds like this case precisely! - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n16 To the extent they support respondents' theory of "waiver," Weisman and Frey & Horgan Corp. will be discussed in more detail in section II.D., post. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Even if fraud occurring in the course of an arbitration were a cognizable basis for "revocation" of the agreement to arbitrate, however, we do not find sufficient evidence in the record of the summary trial court proceedings to support such a claim. >? Appeals court isn't supposed to reevaluate evidence At least to this point, there is no evidence of any misrepresentation or false promise by Kaiser or its attorneys on which Mr. Engalla, Mr. Rand, or respondents justifiably relied to their detriment during the course of the arbitration proceedings. Respondents' principal argument in this regard is that Mr. McComas feigned uncertainty about their agreement to have Judge Cooney serve as the neutral arbitrator, and misrepresented his availability, leading them to believe that it was "unrealistic" to expect Judge Cooney to conduct the arbitration hearing in September or October 1991. >? What about the Entire Course of Dealing? This argument seriously distorts the meaning of a single word used in one of the dozens of letters exchanged in this case. In that letter of October 7, Mr. McComas said: "You have written advising that you wish to set this matter for an arbitration hearing at an early date. Despite your stated desire to so do, neither you nor your clients have agreed to the appointment of a neutral arbitrator. At one point, I was advised by Michael Ney, defendants' party arbitrator, that you were in agreement that Judge Robert Cooney could serve as neutral arbitrator, but only if the case could be set for an arbitration hearing before the end of September, 1991. At that point in time, that kind of time schedule was unrealistic. The end of September has come and gone. To this date, neither you nor your clients have agreed to the appointment of a neutral arbitrator. Obviously, this case cannot proceed to an arbitration hearing unless and until neutral arbitrator is appointed. "We have proposed several persons to act as neutral arbitrator in this case. You apparently agreed to Judge Cooney with an unrealistic condition." Respondents argue that, in this letter, Mr. McComas "affirmatively misrepresented that a September hearing was unrealistic for Judge Cooney when, in fact, he had not explored the subject with Judge Cooney, who was available." Mr. McComas's October 7 letter, fairly read, contains no such misrepresentation. If he had never discussed the matter with Judge Cooney, Mr. McComas could not have known that the judge was in fact available for an arbitration in September and October. n17 The plain import of Mr. McComas's October 7 letter is, thus, that the case was simply not ready for a hearing because no neutral arbitrator had been appointed and a great deal of planned discovery still needed to be completed by the parties. n18 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n17 Citing Boutwell v. Kaiser Foundation Health Plan (1988) 206 Cal.App.3d 1371, 1374 [254 Cal.Rptr. 173]), Kaiser further contends that it was Mr. Rand's duty, as the attorney prosecuting the claim, to contact Judge Cooney to arrange for a conference and hearing date. Kaiser reads too much into the Boutwell case. Under the plain terms of the Kaiser arbitration provision, it is the duty of the two party arbitrators to "select" the neutral arbitrator, and the duty of the neutral arbitrator to designate the time and place for the arbitration hearing. n18 This reading of Mr. McComas's October 7 letter is all the more clear when placed in the context of several other letters exchanged between counsel. Mr. Rand first agreed to Judge Cooney on September 5, "provided that he can be available to commence this matter this month," but also proposed two alternative retired judges to serve as neutral arbitrator. Mr. Rand followed up with an additional letter on September 18, asking for confirmation of his "agreement to one of Mr. Ney's suggestions." Mr. McComas did not respond until September 24, at which time he stated, "I was advised at one point that plaintiffs were in agreement that Judge Robert Cooney could act as neutral arbitrator in this case. [P] If for some reason Judge Cooney is not acceptable to you and your clients as a neutral arbitrator, please advise." Mr. Rand responded by letter dated September 26, in which he reiterated that his agreement to Judge Cooney had been conditional: "We had agreed to Judge Cooney only if he was going to be available to commence this arbitration in the very near future. I am still waiting to hear from you or Mr. Ney to determine whether his availability has been confirmed." - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Respondents also rely on a claim that Ms. Shiffrin misled Mr. Rand about Kaiser's willingness to expedite the arbitration proceedings. There is no merit to this claim. Ms. Shiffrin promptly responded to Mr. Rand's request for a copy of the arbitration provision, arranged for expedited copies of Mr. Engalla's Hayward medical records, and assigned the case to outside counsel who would be responsible for contacting Mr. Rand "in the near future" with Kaiser's party arbitrator designation. There was nothing false or misleading about this, or any subsequent communication from Ms. Shiffrin. On the other hand, there may well be substantial evidence that Kaiser and its counsel exhibited "a cavalier attitude toward time limits," especially when compared to Mr. Rand's diligence in trying to bring the case to an arbitration hearing before his client was expected to and did die. >? More than 'cavalier'! Cynical & self-serving.u It is possible to infer from his correspondence of October 7 that Mr. McComas was attempting to delay the appointment of a neutral arbitrator by expressing uncertainty about Mr. Rand's agreement to have Judge Cooney serve in that role. It is also possible to infer from the attorneys' correspondence, and from subsequent deposition testimony, that Mr. McComas stalled the depositions of the treating physicians in order to buy time with which to prepare them on theories developed by expert consultants. Likewise, it is possible to infer from the fact that Mr. McComas refused to stipulate to Mr. Rand's many suggestions for expediting the process that it was taking full advantage of its dominant position in an adhesive contractual relationship. >? And the Trial Court DID so find, in its discretion. While some or all of this conduct may have been improper under statutes that regulate lawyers' actions in litigation (see, e.g., Rosemont v. Superior Court (1964) 60 Cal.2d 709, 712, 715 [36 Cal.Rptr. 439, 388 P.2d 671]), and morally reprehensible if undertaken by Kaiser and its attorneys simply to stall the litigation until the claimant died, it is not the stuff of which a claim of fraud is made. >? Combined with the fiduciary duty it is! That said, we do not mean to imply that the Engallas are barred from recovery of the elements of damage lost because they were unable to complete an arbitration in the Kaiser system while Mr. Engalla was still alive. At most, however, respondents' evidence to this point establishes a breach of the arbitration agreement or the covenant of good faith and fair dealing implied by law therein. In this regard, we disagree with the suggestion in Kaiser's brief that it has no further "duty to cooperate" once a claim is presented for arbitration. Far from it. Kaiser has contractual obligations to appoint its party arbitrator within 30 days of service of the claim, to negotiate in good faith for appointment of a neutral arbitrator within 60 days, and to proceed toward a hearing within a "reasonable" time thereafter. >? Sue for breach It has also specifically agreed to be bound by procedural rules contained in the California Code of Civil Procedure, including those pertaining to discovery and sanctions for discovery abuse. >? Sue for abuse of discovery rules Arbitrators are free to fashion any relief they consider "just and fair under the circumstances existing at the time of the arbitration" for violation of any of these contractual duties. >? But if the arbitration process has been corrupted?? (See Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 383 [36 Cal.Rptr.2d 581, 885 P.2d 994].) Alternatively, respondents may have been entitled to remedies under statutes designed to control and/or punish discovery abuse. We agree with Kaiser when it argues that the neutral arbitrator has "ample power to rectify abusive conduct which comes to his or her attention during the arbitration proceeding." Under California law, once a neutral arbitrator is appointed for a Kaiser arbitration (whether by agreement or by court order), he or she controls the scope and course of discovery and can impose discovery sanctions--just as the superior court can--where warranted by a party's dilatory conduct or bad faith. >? Ask for Sanctions for bad faith (See @ 1283.05, subds. (b)-(c), 1283.1.) The arbitrator may also look to other procedural statutes as a " 'measuring rod' " with which to assess and then to punish abusive or dilatory conduct by the parties or their lawyers in the arbitration. (See, e.g., Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1808 [13 Cal.Rptr.2d 678], citing Young v. Ross-Loos Medical Group, Inc. (1982) 135 Cal.App.3d 669, 673 [185 Cal.Rptr. 536].) n19 In addition, there is nothing in the Code of Civil Procedure or the parties' arbitration agreement to prevent the neutral arbitrator (or the court, if an order pursuant to section 1281.6 is sought) from imposing sanctions for abusive conduct in the process provided for selection of the neutral arbitrator. >? Ask for Sanctions for abusive conduct Then, too, as Kaiser also acknowledges in its brief, "Should the neutral fail to correct misconduct which compromises the fairness of the proceeding, the courts can vacate the award for 'corruption.' " (See @ 1286.2, subd. (a); see also 9 U.S.C. @ 10.) >? Vacate the award for 'corruption' - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n19 Thus, for example, if a neutral arbitrator were appointed within the 60-day period provided by the Service Agreement (or shortly thereafter pursuant to section 1281.6) and Kaiser were to engage in misconduct thereafter in order to prevent an arbitration during the claimant's lifetime, it is possible that, upon request by the offended party, the arbitrator could dismiss the arbitration (see, e.g., @ 2023, subd. (b)(4)) without prejudice, allowing the claimant to proceed to superior court within the period provided by the applicable statute of limitations. (See Brock v. Kaiser Foundation Hospitals, supra, 10 Cal.App.4th at p. 1808.) >? Sure! And never get another job from Kaiser! - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The point is that respondents' claim of "fraud in the application"-whether denominated as such, or as a claim for breach of the arbitration agreement or the covenant of good faith and fair dealing--is predicated on the existence of duties created by the arbitration agreement and must be decided by the arbitrator. >? Complete non sequitur! Any other approach would seriously compromise the utility of arbitration, allowing a party who has agreed to arbitrate the right to withdraw from a pending arbitration whenever he or she experiences frustration at the pace of the proceedings. >? No! When there has been fraud or breach. A recent decision by the Fourth District Court of Appeal, Titan Value Equities Group, Inc. v. Superior Court (1994) 29 Cal.App.4th 482 [35 Cal.Rptr.2d 4] (Titan), supports this conclusion. In Titan, two investors filed suit in 1992 against Titan/Value Equities Group, Inc., and other defendants to recover losses suffered in securities trading. The defendants promptly moved to stay the litigation and to compel arbitration before the National Association of Securities Dealers in accordance with an agreement the investors had signed when they opened securities accounts in 1990. (29 Cal.App.4th at pp. 484-485.) When the investors agreed to stipulate to arbitration, the trial court denied defendants' petition as moot and stayed the litigation. However, the arbitration stalled as a result of the bankruptcy of two individual defendants, discovery disputes, and scheduling conflicts. (Id. at p. 485.) In February 1994, the investors' counsel appeared in court for a "progress conference," expressed frustration about the arbitration, and asked the trial court to resume control of the case. The trial court agreed to reassert its jurisdiction and set the case for trial on June 10, 1994. (Titan, supra, 29 Cal.App.4th at p. 485.) In response, the defendants again moved to stay the superior court action, and sought an order compelling arbitration. The trial court issued an order compelling arbitration but imposed numerous conditions, including one requiring defendants to respond to certain discovery requests. The trial court further ordered the parties to conduct an arbitration before the end of June 1994 and, failing that, to return to court for trial on the previously established trial date. (Id. at pp. 485-486.) Defendants sought writ review of this ruling, arguing that the trial court exceeded its jurisdiction by attempting to control the conduct of the litigation while it was pending in the arbitral forum. (Titan, supra, 29 Cal.App.4th at pp. 486-487.) The Fourth District agreed and held that, with only a few exceptions expressly provided by statute (see @ 1281.6 [power to appoint an arbitrator where the method chosen by the parties has failed], @ 1281.8 [power to grant provisional remedies where a proper award would be rendered ineffectual without the provisional relief]; and @ 1285 [power to confirm, correct, or vacate the arbitration award on specified grounds]), the trial court is not authorized to interfere in a matter that has been submitted to arbitration. (Titan, supra, 29 Cal.App.4th at pp. 487-488.) " 'An arbitration has a life of its own outside the judicial system.' [Citation.] The trial court may not step into a case submitted to arbitration and tell the arbitrator what to do and when to do it; it may not resolve procedural questions, order discovery, determine the status of claims before the arbitrator or set the case for trial because of a party's alleged dilatory conduct. It is for the arbitrator, and not the court, to resolve such questions." (Id. at p. 489, quoting Byerly v. Sale (1988) 204 Cal.App.3d 1312, 1316 [251 Cal.Rptr. 749]; see also Brock v. Kaiser Foundation Hospitals, supra, 10 Cal.App.4th at p. 1796; McRae v. Superior Court (1963) 221 Cal.App.2d 166, 171 [34 Cal.Rptr. 346].) Of course, unlike Titan, supra, 29 Cal.App.4th 482, the instant case did not involve a court-ordered stay of litigation pending completion of arbitration proceedings (@ 1282.4), a situation in which the court is said to retain " 'vestigial' jurisdiction" over the matter submitted to arbitration. (Titan supra, at p. 487, quoting Brock v. Kaiser Foundation Hospitals, supra, 10 Cal.App.4th at p. 1796.) It is also distinguishable in that the trial court here did not simply impose conditions on the conduct of the arbitration; it assumed full jurisdiction of the matter. Nevertheless, the reasoning of Titan applies. If the trial court lacks the authority to impose conditions on a pending arbitration in order to rectify a party's dilatory conduct, a fortiori, it lacks the power to completely remove the matter from the arbitral forum for that reason. >? Not just Delay! Fraud, corruption, breach, oppression! Unless otherwise provided by statute or by the parties' agreement, it is the job of the arbitrator--and not the court--to grant appropriate relief for delay in bringing a pending arbitration to a resolution. (Titan, supra, 29 Cal.App.4th at pp. 487-488.)