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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

DANIEL E. LUNGREN
 

Attorney General
 

OPINION : 

: No. 96-912 

of : 

: December 27, 1996 

DANIEL E. LUNGREN : 

Attorney General : 

:
 

ANTHONY S. Da VIGO :
 

Deputy Attorney General :
 

: 

THE HONORABLE TIM LESLIE, MEMBER OF THE CALIFORNIA STATE 

SENATE, has requested an opinion on the following questions: 

1. Does the common law immunity from civil liability for judicial officers apply to 

judicial and private arbitrators? 

2. Did the enactment or repeal of statutory immunity from civil liability for arbitrators 

affect the common law immunity from civil liability for judicial and private arbitrators? 

CONCLUSIONS 

1. The common law immunity from civil liability for judicial officers applies to 

judicial arbitrators; it also applies to private arbitrators when the latter are acting in their quasi-judicial 

capacities. 

2. The enactment of statutory immunity from civil liability for arbitrators did not 

affect the immunity applicable to judicial arbitrators, but did expand the scope of immunity for private 

arbitrators to that applicable to judicial officers. The statute's repeal reinstated the common law 

immunity for the quasi-judicial acts of private arbitrators. 

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ANALYSIS
 

The two questions presented for consideration concern the nature and extent of 

"common law" and statutory law immunity from civil suit for arbitrators conducting judicial and 

private arbitrations. Before addressing each question individual, we note the definitions of the terms 

involved in the two inquiries. "Arbitration is the submission for determination of a disputed matter to 

private unofficial persons selected in the manner provided by law or by agreement of the parties." 

(Stockwell v. Equitable F. & M. Ins. Co. (1933) 134 Cal.App. 534, 540; accord, Howard v. Drapkin 

(1990) 222 Cal.App.3d 843, 854, fn. 5; see 70 Ops.Cal.Atty.Gen. 203, 204 (1987).) "[A]ttributes of a 

true arbitration agreement [are]: (1) a third party decisionmaker; (2) a mechanism for ensuring 

neutrality with respect to the rendering of the decision; (3) a decisionmaker who is chosen by the 

parties; (4) an opportunity for both parties to be heard, and (5) a binding decision." (Cheng-Canindin 

v. Renaissance Hotel Associates (1996) 50 Cal.App.4th 676, 684.) "California's first arbitration statute 

was enacted in 1851." (Coopers & Lybrand v. Superior Court (1989) 212 Cal.App.3d 524, 530.) 

"Arbitration has evolved into a favored method for the resolution of disputes." (Thiele v. RML Realty 

Partners (1993) 14 Cal.App.4th 1526, 1531.) 

There are two types of arbitrations: judicial and private. Judicial arbitrations, 

sometimes known as "court-annexed" arbitrations, are conducted under the Judicial Arbitration Act 

(Code Civ. Proc., '' 1141.10-1141.31). (Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 403-404; 

Porreco v. Red Top RV Center (1989) 216 Cal.App.3d 113, 118-119; Sisler v. Superior Court (1988) 

205 Cal.App.3d 864, 867; Demirgian v. Superior Court (1986) 187 Cal.App.3d 372, 375.)1 "Along 

with its goal of resolving small claims efficiently and affordably, judicial arbitration is intended to ease 

court case loads." (Flynn v. Gorton (1989) 207 Cal.App.3d 1550, 1555; accord, Crampton v. 

Takegoshi (1993) 17 Cal.App.4th 308, 319.) 

Private arbitrations, also known as "general," "contractual," "nonjudicial," 

"commercial," and "true" arbitrations, are based upon the agreement of the parties and are conducted 

under a separate statutory scheme, sections 1280-1294.2. (Blanton v. Womancare, Inc., supra, 38 

Cal.3d at 402; Valsan Partners Ltd. Part. v. Calcor Space Facility, Inc. (1994) 25 Cal.App.4th 809, 

816; Crampton v. Takegoshi, supra, 17 Cal.App.4th at 319; Porreco v. Red Top RV Center, supra, 216 

Cal.App.3d at 118-120; Baar v. Tigerman (1983) 140 Cal.App.3d 979, 984.) 

Numerous distinctions exist between judicial and private arbitrations (Blanton v. 

Womancare, Inc., supra, 38 Cal.3d at 401-402; Crampton v. Takegoshi, supra, 17 Cal.App.4th at 319; 

Porreco v. Red Top RV Center, supra, 216 Cal.App.3d at 118-119), and "other than Section 1280.1," 

the two statutory schemes "are mutually exclusive and independent of each other" (' 1140.30).2 

1 Unidentified section references hereinafter are to the Code of Civil Procedure. 

2 The provisions of section 1280.1 are discussed below in response to the second question. 

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Immunity from civil liability for judicial officers "bars civil actions against judges for 

acts performed in the exercise of their judicial functions and it applies to all judicial determinations, 

including those rendered in excess of the judge's jurisdiction, no matter how erroneous or even 

malicious or corrupt they may be." (Howard v. Drapkin, supra, 222 Cal.App.3d at 851, fn. omitted; 

see Greene v. Zank (1984) 158 Cal.App.3d 497, 507.) The purpose of granting immunity to judges for 

their judicial acts is to prevent intimidation and foster "principled and fearless decision-making." 

(Pierson v. Ray (1967) 386 U.S. 547, 554; see Hardy v. Vial (1957) 48 Cal.2d 577, 582-583; Thiele v. 

RML Realty Partners, supra, 14 Cal.App.4th at 1531; Baar v. Tigerman, supra, 140 Cal.App.3d at 

982.) As stated in Howard v. Drapkin, supra, 222 Cal.App.3d at 852: 

". . . The public is best served when its judicial officers are free from fear of 

personal consequences for acts performed in their judicial capacity. [Citation.] `If 

judges were personally liable for erroneous decisions, the resulting avalanche of suits, 

most of them frivolous but vexatious, would provide powerful incentives for judges to 

avoid rendering decisions likely to provoke such suits. [Citation.] The resulting 

timidity would be hard to detect or control, and it would manifestly detract from 

independent and impartial adjudication.' [Citation.] `It is a judge's duty to decide all 

cases within his jurisdiction that are brought before him, including controversial cases 

that arouse the most intense feelings in the litigants. His errors may be corrected on 

appeal, but he should not have to fear that unsatisfied litigants may hound him with 

litigation charging malice or corruption. Imposing such a burden on judges would 

contribute not to principled and fearless decision-making but to intimidation.' 

[Citation.] `"The justification for [judicial immunity] is that it is impossible to know 

whether [a person's claim against an official] is well founded until the case has been 

tried, and that to submit all officials, the innocent as well as the guilty, to the burden of 

a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the 

most resolute, or the most irresponsible, in the unflinching discharge of their duties."' 

[Citations.] Thus, the protection must be absolute, even to the malicious or corrupt 

judge. The effect of judicial immunity is that the action against the judicial officer 

must be dismissed. [Citation.]" 

While granting judicial immunity from civil liability protects the finality of a judge's decision by 

preventing a collateral attack, a party may of course seek reversal of the decision by an appellate court 

in case of abuse or error. (Ibid.) 

1. Common Law Immunity 

The first question to be resolved is whether the common law immunity from civil 

liability for judicial officers applies to judicial and private arbitrators. We conclude generally that it 

does. 

At its first session following the formation of a state government, the Legislature 

adopted the common law of England as the basis for the state's jurisprudence. (Fowler v. Smith (1852) 

2 Cal. 568, 568-569; 66 Ops.Cal.Atty.Gen. 293, 295 (1983).) Civil Code section 22.2 now provides: 

"The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of 

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the United States, or the Constitution or laws of this state, is the rule of decision in all courts of this 

State." 

"The concept of judicial immunity is long-standing and absolute, with its roots in 

English common law." (Howard v. Drapkin, supra, 222 Cal.App.3d at 851.) With respect to whether 

common law judicial immunity extends to judicial arbitrators, the Howard court found: 

". . . Thus, we believe it appropriate that these `nonjudicial persons who fulfill 

quasi-judicial functions intimately related to the judicial process' [citation] should be 

given absolute quasi-judicial immunity for damage claims arising from their 

performance of duties in connection with the judicial process. Without such immunity, 

such persons will be reluctant to accept court appointments or provide work product for 

the courts' use. . . . 

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

"We therefore hold that absolute quasi-immunity is properly extended to these 

neutral third parties for their conduct in performing dispute resolution services which 

are connected to the judicial process and involve either (1) the making of binding 

decisions, (2) the making of findings or recommendations to the court or (3) the 

arbitration, mediation, conciliation, evaluation or other similar resolution of pending 

disputes." (Id., at pp. 857-860.) 

Accordingly, the common law immunity from civil liability for judicial officers applies to judicial 

arbitrators. In case of abuse or error, judicial arbitration awards may be corrected, modified, or 

vacated (' 1141.22), and "[a]ny party may elect to have a de novo trial, by court or jury, both as to law 

and facts" (' 1141.29, subd. (b)). (See Blanton v. Womancare, Inc., supra, 38 Cal.3d at 401; 

Crampton v. Takegoshi, supra, 17 Cal.App.4th at 319; Porreco v. Red Top RV Center, supra, 216 

Cal.App.3d at 119; Demirgian v. Superior Court, supra, 187 Cal.App.3d at 375.) 

With regard to private arbitrations, courts recognized early on that contractual 

arbitrators serve in a quasi-judicial capacity3 and extended judicial immunity to private arbitrators 

functioning in such capacity. (Coopers & Lybrand v. Superior Court, supra, 212 Cal.App.3d at 534.) 

Common law immunity is extended to all functions that are "integrally related to the arbitral process." 

(Thiele v. RML Realty Partners, supra, 14 Cal.App.4th at 1530, citing Austern v. Chicago Bd. Options 

Exchange, Inc. (2d Cir. 1990) 898 F.2d 882, 886.) 

3 In determining whether a person is acting in a quasi-judicial fashion, the courts look at the nature of the duty performed 

to determine whether it is a judicial act--not the name or classification of the officer who performs it. (Thiele v. RMC Realty 

Partners, supra, 14 Cal.App.4th at 1530; American Arbitration Assn. v. Superior Court (1992) 8 Cal.App.4th 1131, 1134; 

Howard v. Drapkin, supra, 222 Cal.App.3d at 853-854; Coopers & Lybrand v. Superior Court, supra, 212 Cal.App.3d at 

534.) 

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In Baar v. Tigerman, supra, 140 Cal.App.3d 979, however, the court rejected the 

suggestion that private arbitrators should be immune from suit for the failure to render a decision. 

While observing that judges could not be sued for such failure, the court noted that "[t]o date, no case 

has extended arbitral immunity to cover such a situation." (Id., at p. 983.) The court concluded that 

civil liability may be imposed upon a private arbitrator to "uphold the contractual obligations of [the] 

arbitrator to the parties involved" to render a decision. (Id., at p. 985; see Moore v. Conliffe (1996) 7 

Cal.4th 634, 655; American Arbitration Assn. v. Superior Court, supra, 8 Cal.App.4th at 1133; Coopers 

& Lybrand v. Superior Court, supra, 212 Cal.App.3d at 524.) As with judicial arbitration awards, in 

case of abuse or error, private arbitration awards may be corrected ('' 1286.6-1286.8) or vacated (''

1286.2-1286.4) upon application of a party. (See Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 

12-13.) 

We thus conclude in answer to the first question that the common law immunity from 

civil liability for judicial officers applies to judicial arbitrators; it also applies to private arbitrators when 

the latter are acting in their quasi-judicial capacities. 

2. Statutory Immunity 

The second question to be resolved concerns the statutory immunity from civil liability 

for arbitrators that was enacted and recently repealed by the Legislature. Did such enactment or repeal 

affect a judicial or private arbitrator's common law immunity from civil liability? We conclude that 

the statute's enactment expanded the immunity for private arbitrators and that its repeal eliminated such 

expansion of the immunity. 

In 1985 (Stats. 1985, ch. 709, ' 1) the Legislature enacted section 1280.1 to provide as 

follows: 

"An arbitrator has the immunity of a judicial officer from civil liability when 

acting in the capacity of arbitrator under any statute or contract. 

"This section shall remain in effect only until January 1, 1991, and as of that 

date is repealed, unless a later enacted statute, which is enacted before January 1, 1991, 

deletes or extends that date." 

In 1990 (Stats. 1990, ch. 817, ' 2) the Legislature extended the date of repeal from 1991 to 1996, and 

added a second paragraph as follows: "The immunity afforded by this section shall supplement, and 

not supplant, any otherwise applicable common law or statutory immunity."4 In 1995 (Stats. 1995, ch. 

209, ' 2) the Legislature extended the date of repeal to January 1, 1997. Accordingly, as of January 1, 

1997, the statutory immunity from liability for arbitrators is repealed. 

4 Particular statutes providing arbitrators with immunity are found in Code of Civil Procedure section 1297.119 

(international commercial dispute arbitrations) and Business and Professions Code section 6200, subdivision (f) (attorney fees 

arbitrations). Both statutes provide for the same immunity which attaches in judicial proceedings. Neither is affected by the 

repeal of section 1280.1. 

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Section 1280.1 is contained in the statutory scheme governing private arbitrations, and 

therefore has no bearing on judicial arbitrations. (Porreco v. Red Top RV Center, supra, 216 

Cal.App.3d at 118-119.) By the same enactment which added section 1280.1 in 1985, however, 

section 1141.30 (applicable to judicial arbitrations) was amended to read in part as follows: 

"The provisions of [sections 1141.10-1141.31] shall not be construed in 

derogation of the provisions of [sections 1280-1294.2], and, to that extent, the 

provisions of [sections 1141.10-1141.31] and [sections 1280-1294.2], other than the 

provisions of Section 1280.1, are mutually exclusive and independent of each other." 

(Stats. 1985, ch. 709, ' 2.) 

Section 1141.30 currently contains the above quoted language respecting "other than the provisions of 

Section 1280.1." 

From 1986 to 1997, while section 1280.1 was the law of California, private arbitrators 

had the same immunity from civil liability as a "judicial officer"--which was the same immunity 

extended under the common law to judicial arbitrators. Hence both judicial and private arbitrators had 

the same degree of immunity and to that extent, the two statutory schemes were not "mutually 

exclusive and independent of each other." 

Section 1280.1 was enacted in response to the court's decision in Baar v. Tigerman, 

supra, 140 Cal.App.3d 979, discussed above, which held that a private arbitrator may be sued by a 

party to the arbitration for the failure to render a decision. (Moore v. Conliffe, supra, 7 Cal.4th at 

654-655; Thiele v. RML Realty Partners, supra, 14 Cal.App.4th at 1526; American Arbitration Assn. v. 

Superior Court, supra, 8 Cal.App.4th at 1133; Coopers & Lybrand v. Superior Court, supra, 212 

Cal.App.3d at 534-536.) Under the terms of section 1280.1, such suits could no longer be maintained 

under the common law rule. (See Civ. Code, ' 22.2; 74 Ops.Cal.Atty.Gen. 86, 88 (1991); 67 

Ops.Cal.Atty.Gen. 369, 379-381 (1984).) 

Upon the repeal of section 1280.1 on January 1, 1997, the common law immunity for 

private arbitrators is again in effect, allowing arbitration parties to sue such arbitrators for the failure to 

render a decision. The enactment of section 1280.1 for 11 years may thus be seen as an experiment by 

the Legislature to determine whether private arbitrators require shielding from liability for the failure to 

perform their contractual duties in rendering a decision. (Howard v. Drapkin, supra, 222 Cal.App.3d 

at 853, fn. 4; Coopers & Lybrand v. Superior Court, supra, 22 Cal.App.3d at 536-537.) Ultimately the 

Legislature appears to have concluded that such shielding is unnecessary. 

In answer to the second question, we thus conclude that the enactment of statutory 

immunity from civil liability for arbitrators did not affect the immunity applicable to judicial arbitrators, 

but did expand the scope of immunity for private arbitrators to that applicable to judicial officers. 

Section 1280.1's repeal reinstates the common law immunity for quasi-judicial acts, with private 

arbitrators remaining liable for their contractual obligations owed to the parties. 

* * * * * 

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