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Little v. Auto Stiegler2/27/2003
based on contract-including, for example, . . . defamation and tortious interference claims . . . -implement values that society has in one way or another thought deserving." (Brown, supra, 257 F.3d at p. 826.) Under this public policy rationale, "it is hard to see what falls outside it." (Ibid.) For example, under the majority's logic, any arbitration of an intentional tort claim must abide by the Cole/Armendariz requirements because such claims are unwaivable under Civil Code section 1668.
In this respect, this case is no different from Mastrobuono. In Mastrobuono, the United States Supreme Court held that the FAA preempted a judicially created rule prohibiting arbitrators from awarding punitive damages even though a state court created the rule for public policy reasons. (Mastrobuono, supra, 514 U.S. at pp. 55, 58.) The same reasoning precludes our application of the judicially created Cole/Armendariz requirements to the arbitration of Tameny claims. By creating a rule applicable only to arbitration provisions, the majority necessarily violates the FAA. (See Doctor's Associates, Inc. v. Casarotto (1996) 517 U.S. 681, 687 ["Courts may not, however, invalidate arbitration agreements under state laws applicable only to arbitration provisions"].)
Our extension of Armendariz to Tameny claims therefore usurps Congress's authority to establish "the supreme law of the land" (U.S. Const., art. VI, cl. 2) and the Legislature's "responsibility to declare the public policy of the state" (Green, supra, 19 Cal.4th at p. 71). Moreover, by imposing arbitration-specific restrictions that have no congressional or legislative basis, the majority not only undermines the "liberal federal policy favoring arbitration" (Moses H. Cone Hospital v. Mercury Constr. Corp. (1983) 460 U.S. 1, 24), but also contravenes California's "strong public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution" (Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 322). Even if Tameny claims cannot be effectively vindicated absent imposition of the Cole/Armendariz requirements, both Congress and our Legislature have declined to impose them. By disregarding their intentions, the majority appears intent on turning "the judicial clock backwards to an era of hostility toward arbitration." (Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 714.) Indeed, this court appears to be "chip[ping] away at" United States Supreme Court precedents broadly construing the scope of the FAA "by indirection," despite the high court's admonition against doing so. (Circuit City Stores, Inc. v. Adams (2001) 532 U.S. 105, 122.) I therefore urge the high court to clarify once and for all whether our approach to arbitration law comports with its precedents.
BROWN, J.
WE CONCUR:
BAXTER, J.
CHIN, J.
Review Granted XXX 92 Cal.App.4th 329
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