Larian v. Larian

MOSK, J., Concurring.

I concur in the result.

There was an arbitration pursuant to the September 28, 2000 Agreement to Arbitrate and Selection of Arbitrator. The arbitrator issued an award. Thus, because the arbitration had already taken place, there was no need to compel arbitration under that agreement. The parties entered into a new agreement on December 4, 2000, and pursuant to that agreement signed mutual general releases. Therefore, the only existing agreement between the pañíes was the December 4, 2000 agreement. That agreement contained an arbitration provision. I believe that arbitration should be compelled on the basis of that arbitration provision.

The December 4, 2000 agreement that contains the operative arbitration provisions includes the following choice-of-law clause. “This agreement shall be construed in accordance with and be governed by the laws of the State of California.” The majority conclude that this clause renders the Federal Arbitration Act, title 9, United States Code section 1, et seq. (FAA) “inapplicable.”

I am not so ceñain that the choice-of-law clause does exclude the application of the FAA. The issue is whether the applicable choice-of-law clause manifests an intention to be governed by California procedural rules applicable to arbitrations. (See Mount Diablo Medical Center v. Health Net of California, Inc. (2002) 101 Cal.App.4th 711, 722 [124 Cal.Rptr.2d 607].) In Mastrobuono v. Shearson Lehman Hutton, Inc. (1995) 514 U.S. 52, 58-59 [131 L.Ed.2d 76, 115 S.Ct. 1212], the United States Supreme Couri concluded that a choice-of-law clause dealing with a clause specifying that the agreement “shall be governed by the laws of the State of New York” did not preclude the applicability of the FAA. In Blue Cross of California v. Superior Court (1998) 67 Cal.App.4th 42, 62-63, fn. 8 [78 Cal.Rptr.2d 779], we said that Volt Information Sciences, Inc. v. Board of Trustees (1989) 489 U.S. 468 [103 L.Ed.2d 488, 109 S.Ct. 1248] “does not stand for the proposition a general choice of law provision evidences in all cases an express intent to incorporate a state’s arbitration rules into an arbitration agreement.”

*767If we did apply federal law, the result would be the same. Both federal and California state law have adopted the principle of separability by which the arbitrator is given the power to determine the validity of the contract without calling into question the validity of the arbitration clause from which he or she derives his or her power. (Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 315 [197 Cal.Rptr. 581, 673 P.2d 251]; Prima Paint Corp. v. Flood & Conklin Mfg. Co. (1967) 388 U.S. 395 [18 L.Ed.2d 1270, 87 S.Ct. 1801]; 1 Domke on Commercial Arbitration (3d ed. 2003) § 11.2, pp. 11.6-11.10.)

Accordingly, I agree with the conclusion of the majority.

A petition for a rehearing was denied November 16, 2005, and on November 11, 2004, the opinion was modified to read as printed above.