Freeman v. State Farm Mut. Auto. Ins. Co

In Freeman v. State Farm Mut. Auto. Ins. Co. (1975) 14 Cal. 3d 473, the court held: "The performance of the superior court's duty to decide whether issues must be arbitrated necessarily requires the court to examine and, to a limited extent, construe the underlying agreement. It is, of course, possible for the parties to agree that the arbitrator may determine the scope of his authority. 'The arbitrability of a dispute may itself be subject to arbitration if the parties have so provided in their contract.' Even then, it is necessary for the court to examine the contract to ascertain whether the parties 'have so provided.' " The court stated that Code of Civil Procedure section 1281.2 (see fn. 7, infra) requires the superior court to determine in advance whether there is a duty to arbitrate the controversy which has arisen, and held: "The performance of this duty necessarily requires the court to examine and, to a limited extent, construe the underlying agreement. para. It is, of course, possible for the parties to agree that the arbitrator may determine the scope of his authority. 'The arbitrability of a dispute may itself be subject to arbitration if the parties have so provided in their contract.' Even then, it is necessary for the court to examine the contract to ascertain whether the parties 'have so provided.' "