Hedges

*580 Opinion

I. INTRODUCTION

Defendant, Stephen E. Carrigan, individually and doing business as National Real Estate Council, appeals from an order denying his petition pursuant to Code of Civil Procedure section 1281.2 1 to compel plaintiffs, Arthur W. Hedges and Dimity Hedges, to arbitrate a dispute. The dispute arose from plaintiffs’ purchase of a single family residence from the sellers and defendants, Lane G. Weinman and Cynthia N. Weinman. In the published portion, we discuss whether section 1298 is subject to the limited preemptive effect of the United States Arbitration Act. We affirm.

II. BACKGROUND

On September 9, 2002, plaintiffs filed their action on a number of contractual and tort theories against: the Weinmans; Mr. Carrigan, who was plaintiffs’ broker; and Todd Olsen Realty and Debbie Schreve, who was the Weinmans’ broker. The complaint alleged that defendants failed to disclose several defects in the residence, which plaintiffs discovered after they purchased and occupied the home in September 2000.

On February 7, 2003, Mr. Carrigan filed a petition for an order compelling plaintiffs to mediate and to arbitrate the controversy. (The parties subsequently agreed…

I concur in the result.

Having held that there was no enforceable arbitration agreement and therefore affirming the trial court’s denial of the petition to arbitrate, this court should not have reached the constitutional issue of preemption in order to make substantially inoperative an important state consumer protection law—Code of Civil Procedure section 1298. (See Palermo v. Stockton Theatres, Inc. (1948) 32 Cal.2d 53, 65 [ 195 P.2d 1 ] [“ ‘[a] court will not *588 decide a constitutional question unless such construction is absolutely necessary’ ”]; Kollander Construction, Inc. v. Superior Court (2002) 98 Cal.App.4th 304, 314 [ 119 Cal.Rptr.2d 614 ] [“[w]e are constrained to avoid constitutional questions where other grounds are available and dispositive”].)

Moreover, the parties before the trial court did not argue, and the trial court did not rely upon, the preemption doctrine. The parties did not even raise the issue before this court. They only discussed the point after this court advanced the preemption issue. Under those circumstances," the preemption argument should have been deemed waived (i.e., forfeited). (See Nemarnik v. Los Angeles Kings Hockey Club (2002) 103…

Certified for Partial Publication [*]

Defendant, Stephen E. Carrigan, individually and doing business as National Real Estate Council, appeals from an order denying his petition pursuant to Code of Civil Procedure section 1281.2 [1] to compel plaintiffs, Arthur W. Hedges and Dimity Hedges, to arbitrate a dispute. The dispute arose from plaintiffs' purchase of a single family residence from the sellers and defendants, Lane G. Weinman and Cynthia N. Weinman. In the published portion, we discuss whether section 1298 is subject to the limited preemptive effect of the United States Arbitration Act. We affirm.

On September 9, 2002, plaintiffs filed their action on a number of contractual and tort theories against: the Weinmans; Mr. Carrigan, who was plaintiffs' broker; and Todd Olsen Realty and Debbie Schreve, who was the Weinmans' broker. The complaint alleged that defendants failed to disclose several defects in the residence, which plaintiffs discovered after they purchased and occupied the home in September 2000.

On February 7, 2003, Mr. Carrigan filed a petition for an order compelling plaintiffs to mediate and to arbitrate the controversy. (The parties…