Thomas v. Perry

• Decision Date: 19 April 1988
• Citation: 246 Cal.Rptr. 156,200 Cal.App.3d 510
• Court: California Court of Appeals Court of Appeals
• Parties: Kenneth Morgan THOMAS, Plaintiff and Respondent, v. Barclay PERRY et al., Defendants and Appellants. Civ. B014485.

Page 156

246 Cal.Rptr. 156

200 Cal.App.3d 510

Kenneth Morgan THOMAS, Plaintiff and Respondent, v. Barclay PERRY et al., Defendants and Appellants.

Civ. B014485.

Court of Appeal, Second District, Division 5, California.

April 19, 1988.

Morrison & Foerster and Peter Brown Dolan and Maren E. Nelson, Los Angeles, for defendants and appellants.

Julian B. Fensten and Bruce Gelber, Beverly Hills, for plaintiff and respondent.

ASHBY, Acting Presiding Justice.

This is an appeal from an order denying a motion to compel arbitration. (Code Civ.Proc. § 1294, subd. (a).) Respondent Kenneth Morgan Thomas sued his former employer, Kidder, Peabody & Company, Inc., (hereafter Kidder, Peabody) and two of its employees, appellants Barclay Perry and James Johnston. Thomas sought to recover a $40,000 commission he alleged is due to him by virtue of an oral contract with Kidder, Peabody and appellants. He sued for breach of contract, seeking damages of $40,000, and for conversion, conspiracy and breach of fiduciary duty, for which he sought additional compensatory and punitive damages.

Appellants moved to compel arbitration pursuant to an agreement respondent signed at the time he was hired by Kidder, Peabody. ¹ The trial court denied the motion to compel arbitration, on the ground that under California Labor Code section The United States Supreme Court reversed, holding that section 2 of the Federal Arbitration Act preempts California Labor Code section 229. (Perry v. Thomas (1987) 482 U.S. ----, ----, 107 S.Ct. 2520, 2526, 96 L.Ed.2d 426, 437.) Section 2 of the Federal Arbitration Act " 'is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary. The effect of the section is to create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act.' [This body of substantive law is] enforceable in both state and federal courts." (Id. 482 U.S. at p. ----, 107 S.Ct. at 2525, 96 L.Ed.2d at p. 435.) The Supreme Court remanded this matter to us for further proceedings not inconsistent with its opinion. (Id. 482 U.S. at p. ----, 107 S.Ct. at 2527, 96 L.Ed.2d at p. 437.)

                229, respondent could maintain this suit notwithstanding his agreement to arbitrate. 2  The court rejected appellants' contention that California Labor Code section 229 is preempted by the Federal Arbitration Act, 9 United States Code section 1 et seq.  In a prior unpublished opinion, we affirmed the trial court's order.  (Thomas v. Perry (April 10, 1986) B014485.)   After review was denied by the California Supreme Court, appellants appealed to the United States Supreme Court.  (28 U.S.C. § 1257(2).) 3
                

On remand, respondent contends that the trial court's order denying the motion to compel arbitration may nevertheless be upheld on two alternative grounds: (1) "that the subject arbitration clause is an unconscionable and unenforceable contract of adhesion" and (2) "that these appellants, Barclay Perry and James Johnston, lack standing to enforce the arbitration clause." Finding no merit to these contentions, we reverse with instructions to grant the motion to compel arbitration.

FACTUAL BACKGROUND

In connection with his application for employment with Kidder, Peabody, respondent was required to execute a Uniform Application for Securities Industry Registration form, which contained a provision stating "I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions, or by-laws of the organizations with which I register, ..."

Rule 347 of the New York Stock Exchange Inc. (1975), with which respondent registered, provides that, "Any controversy between a registered representative and any member or member organization arising out of the employment or termination of employment of such registered representative by and with such member or member organization shall be settled by arbitration, at the instance of any such party, in accordance with the arbitration procedure prescribed elsewhere in these rules."

The dispute in this case involves an alleged agreement for commissions. According to the allegations of respondent's complaint, "[at] all times material herein, each defendant was acting in the course and scope of his employment for defendant, Kidder, Peabody. An oral agreement was made in October, 1982, between plaintiff and defendants [sic ] Johnston, which agreement was supervised by defendant Perry on behalf of defendant Kidder, Peabody."

UNCONSCIONABLE AND UNENFORCEABLE CONTRACT OF ADHESION

Respondent contends "[a]s appellants have previously admitted, a wage-earner in THOMAS' position has no choice but to sign the clause or be excluded from working for any of the firms of the New York Stock Exchange; should a dispute arise, the arbitrator is selected by the Exchange, of which THOMAS' employer (Kidder Peabody) is a member-firm; and, furthermore, the rules for arbitration under this agreement do not allow for any meaningful discovery by an 'outsider' in THOMAS' position.... It is unconscionable to require THOMAS to submit his claim against Kidder Peabody's employees to an arbitrator selected by the very organization (N.Y.S.E.) of which Kidder Peabody is a member-firm."

Preliminarily, we must determine whether respondent's claim that the arbitration clause is an unconscionable and unenforceable contract of adhesion should be decided according to state law or according to federal law. The United States Supreme Court expressly addressed the choice of law issue in footnote 9 of its opinion, as follows: "We also decline to address Thomas' claim that the arbitration agreement in this case constitutes an unconscionable, unenforceable contract of adhesion. This issue was not decided below, see nn. 4 and 6, supra, and may likewise be considered on remand. [p] We note, however, the choice-of-law issue that arises when defenses such as Thomas' so-called 'standing' and unconscionability arguments are asserted. In instances such as these, the text of § 2 provides the touchstone for choosing between state law principles and the principles of federal common law envisioned by the passage of that statute: An agreement to arbitrate is valid, irrevocable, and enforceable, as a matter of federal law, [citation], 'save upon such grounds as exist at law or in equity for the revocation of any contract.' 9 USC § 2 [9 USCS § 2] (emphasis added). Thus state law, whether of legislative or judicial origin, is applicable if that law arose to govern issues concerning the validity, revocability, and enforceability of contracts generally. A state law principle that takes its meaning precisely from the fact that a contract to arbitrate is at issue does not comport with this requirement of § 2. [Citations.] A court may not, then, in assessing the rights of litigants to enforce an arbitration agreement, construe that agreement in a manner different from that in which it otherwise construes nonarbitration agreements under state law. Nor may a court rely on the uniqueness of an agreement to arbitrate as a basis for a state-law holding that enforcement would be unconscionable, for this would enable the court to effect what we hold today the state legislature cannot." ( Perry v. Thomas, supra, 482 U.S. at p. ---- n. 9, 107 S.Ct. at p. 2527, n. 9, 96 L.Ed.2d at p. 437 n. 9.)

Respondent's arguments in this case are clearly the type addressed to the uniqueness of an agreement to arbitrate. He complains of the manner in which the arbitrator is selected under the rules of the New York Stock Exchange, and of the absence under the arbitration rules of a court-style discovery process. Under footnote 9 of the United States Supreme Court opinion, therefore, respondent's claim that the arbitration agreement is unenforceable cannot be sustained on the basis of such state law authorities as Hope v. Superior Court (1981) 122 Cal.App.3d 147, 154, 175 Cal.Rptr. 851 and Graham v. Scissor-Tail, Inc. (1981) 28 Cal.3d 807, 825, 171 Cal.Rptr. 604, 623 P.2d 165, cited by respondent's brief in the earlier appeal of this case. Rather, we must determine whether the arbitration clause would be held unconscionable and unenforceable as a matter of federal law. (See Liddington v. The Energy Group, Inc. (1987) 192 Cal.App.3d 1520, 1526-1528, 238 Cal.Rptr. 202 [citing Perry ]; Tonetti v. Shirley (1985) 173 Cal.App.3d 1144, 1146-1151, 219 Cal.Rptr. 616 [pre-Perry, concluding that whether arbitration provision was unconscionable must be determined by federal rather than state law]; Chan v. Drexel Burnham Lambert, Inc. (1986) 178 Cal.App.3d 632, 637, 223 Cal.Rptr. 838 [pre-Perry, concluding that federal law governs, rather than state adhesion contract principles]; Bayma v. Smith Barney Respondent has cited no federal authority that the manner of selection of arbitrators or the informal discovery process under the rules of the New York Stock Exchange are so unfair that...