DC

A student and his parents filed this action against his school, alleging it was liable under the state’s hate crimes laws (Civ. Code, .§§ 51.7, 52.1) for death threats he received from classmates who misperceived his sexual orientation. The trial court ordered that all of the claims— the statutory hate crimes claim and several common law claims—be arbitrated in accordance with the school’s enrollment contract, which contained not only an arbitration provision but also a provision entitling the “prevailing party” to attorney fees. The arbitrator found in favor of the school on all claims and awarded it over $521,000 in arbitral expenses and attorney fees.

The primary question on appeal is whether the arbitrator could impose a type of expense on plaintiffs they would not have been required to bear if the dispute had been heard in court. We conclude that because the hate crimes laws constitute unwaivable statutory rights comparable to antidiscrimination laws, such expenses are prohibited. Otherwise, the filing of hate crimes claims would be deterred. (See Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 110-113 [ 99 Cal.Rptr.2d 745 , 6 P.3d 669…

The majority concludes that under Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83 [ 99 Cal.Rptr.2d 745 , 6 P.3d 669 ] (Armendariz), plaintiffs cannot be required to bear any type of expense in arbitration that would not have been imposed if their hate crimes claim had been heard in a court. Nothing in the record before us, however, indicates that plaintiffs properly preserved that issue by raising it before the arbitrator. I would therefore affirm on that basis, without reaching the merits.

“Failure to raise [a claim of illegality] before the arbitrator . . . waives the claim for any future judicial review.” (Moncharsh v. Hetty & Blase (1992) 3 Cal.4th 1, 31 [ 10 Cal.Rptr.2d 183 , 832 P.2d 899 ] (Moncharsh).) As the Supreme Court has explained, any other rule would be “inconsistent with the basic purpose of private arbitration, which is to finally decide a dispute between the parties. Moreover, we cannot permit a party to sit on his rights, content in the knowledge that should he suffer an adverse decision, he could then raise the illegality issue in a motion to vacate the arbitrator’s award. A contrary rule would condone a level of ‘procedural…

A student and his parents filed this action against his school, alleging it was liable under the state's hate crimes laws (Civ. Code, §§ 51.7, 52.1) for death threats he received from classmates who misperceived his sexual orientation. The trial court ordered that all of the claims— the statutory hate crimes claim and several common law claims—be arbitrated in accordance with the school's enrollment contract, which contained not only an arbitration provision but also a provision entitling the "prevailing party" to attorney fees. The arbitrator found in favor of the school on all claims and awarded it over $521,000 in arbitral expenses and attorney fees.

The primary question on appeal is whether the arbitrator could impose a type of expense on plaintiffs they would not have been required to bear if the dispute had been heard in court. We conclude that because the hate crimes laws constitute unwaivable statutory rights comparable to antidiscrimination laws, such expenses are prohibited. Otherwise, the filing of hate crimes claims would be deterred. (See Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 110-113 [ 99 Cal.Rptr.2d 745 , 6…