Filed 5/27/15 HCF Ins. Agency v. Patriot Underwriters CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

HCF INSURANCE ANGENCY,
Plaintiff and Respondent,

v.
PATRIOT UNDERWRITERS, INC.,
Defendant and Appellant. B257715
(Los Angeles County Super. Ct. No. BC521271)

APPEAL from an order of the Superior Court of Lo s Angeles County, Richard Edward Rico, Judg e. Affirmed.
Chamberlin Keaster & Broc kman, Robert W. Keaster and Michael A. Miller for Defendant and Appellant. Winget Spadafora & Schwartzberg, Bra ndon S. Reif, David Maurer and Rafael DeAquino Villar for Plai ntiff and Respondent.2 I. INTRODUCTION

Defendant, Patriot Underwr iters, Incorporated, appeals from an order partially denying its amended motion to compel arb itration against plaintiff, HCF Insurance Agency. Plaintiff filed a first amended co mplaint containing multiple causes of action against defendant and other parties. As to defendant, plaintiff alleges the following causes of action: contract breach (first); breac h of the implied covenant of good faith and fair dealing (second); fraud (third); intenti onal interference with economic advantage (fourth); and unlawful group boycott in vi olation of Business a nd Professions Code section 16720 et seq., also known as the Ca rtwright Act (ninth). Defendant moved to compel arbitration pursuant to an agreement signed by plain tiff. The trial court ordered arbitration as to the contract and implied covenant breach claims because those two causes of action were within the scope of th e arbitration agreement. The trial court denied the arbitration petition as to the fraud and intentional inte rference with economic advantage causes of action. The trial court ru led those two claims did not fall within the scope of the arbitration agreement. The tria l court also denied th e arbitration petition as to the Cartwright Act cause of action. The tr ial court ruled application of the arbitration clause’s Florida choice-of-law provision prev ented plaintiff from secu ring any relief. The trial court found the group boycott cl aim involved an impor tant public policy
because it is California’s antitrust statute. We affirm the order partially denying
defendant’s motion to compel arbitration.

II. BACKGROUND

A. Plaintiff’s Allegations

On September 12, 2013, plaintiff filed its complaint. Defendant moved to compel arbitration on October 25, 2013. Plaintiff s ubsequently filed a fi rst amended complaint on December 16, 2013, against: defendant; Intercare Specialty Risk Services, its3 fictitious business names and successors in interest; Kevin Hamm, president and chief shareholder of Intercare Specialty Risk Serv ices; Renee Iaia, president of Phoenix Risk Management Insurance Services, a related busin ess to Intercare Specialty Risk Services; and Shomer Insurance Agency, In corporated. We will focus on plaintiff’s claims against
defendant. Plaintiff provides brokerage and agency services for casualty, accident and health, property, life and surplus lines of insurance. Plaintiff is a California corporation with its principal place of business in Lo s Angeles. Plaintiff is auth orized to conduct business in California. Shomer Insurance Agency, In corporated and Interc are Specialty Risk Services are direct competitors with plaintiff in the insura nce market in the greater Los Angeles area. They specialize in brokering workers’ compensation policies for extended care facilities. Defendant had a sub-producer agreement with Interc are Specialty Risk
Services and Shomer Insuranc e Agency, Incorporated. Defendant is a Delaware corporation wi th its principal place of business in Fort Lauderdale, Florida. Defendant is a pr ogram administrator and managing general underwriter servicing regional and national wo rkers’ compensation insu rance carriers. Defendant provides products to insurance agencies and wholesalers with expertise in workers’ compensation. Defe ndant also offers services such as claims and risk management. Defendant is in competition with other managing general underwriters in California such as Safety Na tional Casualty Company. Defendant specializes in the creation a nd management of new individual, agency, or group captive insurers for wo rkers’ compensation. A captiv e insurer is a dedicated inhouse subsidiary entity which pr ovides insurance to its owner, a parent corporation. The parent corporation pays pr emiums to the captive insurer rather than an outside firm
to insure some business risk. The captive insurer reinvests the premiums it receives and then pays claims by drawing on the princi pal and return on its investment. Captive
insurers can lower costs and facilitate cove rage for certain hard-to-insure risks that traditional carriers may not underwrite.4 Around July 2012, defendant considered entering into a business relationship with plaintiff. The enterprise was to involve plaintiff’s healthcare-based workers’ compensation business. Defendant’s former regional vice president, David Duvall, requested significant proprietary information. The request was made so defendant could evaluate whether to enter into a group or agency captive insu rer agreement. The proprietary information disclose d included five years of conf idential client lists, effective dates, premiums, payroll figures and loss ra tios. On August 27, 2012, plaintiff and defendant entered into a sub-producer agreem ent. The August 27, 2012 sub-producer agreement was a precursor to forming captiv e insurer agreements. The August 27, 2012 sub-producer agreement allowed plaintiff to access defendant’s products directly without going through competitors like Intercare Specia lty Risk Services or Shomer Insurance Agency, Incorporated. Plain tiff and defendant expected to execute an ag ency captive insurer agreement in November 2012. Within the first few months after the August 27, 2012 sub-producer agreement was entered into , plaintiff submitted substantial “business”
to defendant. Around late August or early September of 2012, Intercare Specialty Risk Services and Shomer Insurance Agency, Incorporated employees learne d of plaintiff’s anticipated captive insurer agreement with defendant. Intercare Spec ialty Risk Services and Shomer Insurance Agency, Inco rporated employees agreed to exert pressure on defendant to exclude plaintiff as their brokerage market competitor. During or around September or October 2012, Mr. Hamm telephoned Steve Maria no, defendant’s chief executive officer. Mr. Hamm threatened to “pu ll business” from defendant ifit did not cancel its subproducer agreement with plaintiff. An un identified employee of Shomer Insurance Agency, Incorporated also communicated with defendant to cease “doing business” with plaintiff. Defendant agreed to cancel the sub-producer agreement because of the threats of Intercare Security Risk Services’ and Sh omer Insurance Agen cy, Incorporated’s employees. An unspecified employee of defe ndant instructed Mr. Duvall not to discuss
these conversations with indi viduals employed by plaintiff. In Nove mber 2012, Jason5 Adelman, plaintiff’s president, asked Mr. D uvall if defendant had approved the captive insurer agreement. Mr. Duvall reiterated that Mr. Mariano, defend ant’s chief executive officer, had approved it. In December 2012, defendant refused to enter into a captive insurer agreement with plaintiff. Defenda nt refused to do so despite numerous representations the captive insu rer agreement was approved an d finalized. On or around January 1, 2013, defendant term inated the sub-producer agreem ent. As previously noted, plaintiff alleges the following causes of action against defendant: contract breach (first); implied covenant breach (second); fraud (third); intentional economic advantage interference (fourth); and unlawful group boycott in violation of the Cartwright Act under Business and Professions Code section 16720, et seq. (ninth). Be cause they are the relevant factual matters in this appeal, we will discuss the allegations in the third, fourth
and ninth cause of action in detail. The allegations in the third cause of ac tion for fraud are difficult to follow. But the following are the relevant allegations. Since 2012, discussions between unspecified employees of plaintiff and defendant were held about entering in to a captive insurer agreement. As part of that process, pl aintiff shared confiden tial information with defendant. As noted, Mr. Duvall was defend ant’s former regional vice-president. On August 27, 2012, Mr. Duvall told Mr. Adelman, plaintiff’s pr esident, that defendant had approved group and agency captive insurer ag reements. Thereafter for several weeks,
Mr. Duvall made similar statements. As late as October 19, 2012, Mr. Duvall relayed a statement by Mr. Mariano, defendant’s chief executive officer, of the approval of the agency captive insurer agreement with plaintiff. Howe ver, Mr. Mariano’s statements
were false and he knew them to be so. Th e purpose of Mr. Mariano’s false statements was to: continue negotiation between plainti ff and defendant; maintain the appearance of good faith; keep plain tiff from securing workers’ compen sation insurance for its clients; continue securing confidential information from plaintiff; and further the boycott’s objectives. (We will describe the boyco tt allegations shortly.) Had unidentified employees of plaintiff known that Mr. Ma riano’s statements concerning the agency6 captive insurer agreement were untrue, negotiations would ha ve ceased. Plaintiff would have pursued other agency opport unities with other companies. For the intentional economic advantage interference cause of action, plaintiff alleges unidentified employees were having si milar discussions regarding captive insurer agreements with Safety National Insurance. Plaintiff provided National Safety Insurance with significant confidential information. De fendant knew: of the economic relationship between plaintiff and National Safety Insuranc e; plaintiff had a significant and profitable “book of business” with National Safety Insurance; and the economic relationship between plaintiff and National Safety Insura nce would be interrupted if Mr. Mariano’s false statements concerning th e captive insurer agreem ent turned out to be true. By its actions, defendant disrupted and interfered w ith plaintiff’s economic relationship with Safety National Insurance. Defendant cau sed plaintiff to suspend its negotiations regarding entering a captive in surer agreement with Safety National Insurance. As to the group boyc ott antitrust claim, plaintiff alle ges, Intercare Specialty Risk Services and Shomer Insurance Agency In corporated are horizontal competitors. Intercare Specialty Risk Services and Shom er Insurance Agency Incorporated entered into an agreement to threaten defendant. The first amended complaint describes the relationship between plaintiff, Intercare Specially Risk Serv ices and Shomer Insurance Agency Incorporated as follows: “At all relevant times, . . . Intercare [Specialty Risk Services] and Shomer [Insuran ce Agency Incorporat ed] provided brokerage services and sold various lines of specialized commerc ial insurance products to a significantly overlapping base of actual or potential customer s in direct competition with [plaintiff]. In some cases, [plaintiff], Intercare [Specially Risk Services] and Shomer [Insurance Agency Incorporated] were a ll brokers for defendant.” Ac cording to the first amended complaint, Intercare Specially Risk Services and Shomer In surance Agency Incorporated entered into an agreemen t to threaten defendant. The pur pose of the threat was to force defendant to terminate plain tiff’s existing sub-producer ag reement. The threat was designed to remove plaintiff as a competitor of Intercare Specially Risk Services and Shomer Insurance Agency In corporated. The first amen ded complaint describes the7 threat thusly: “To remove [plaintiff] as a direct competitor for brokering workers’ compensation coverage to extended care faci lities, Intercare [Speci alty Risk Services] and Shomer [Insurance Agency Incorporated], as horizontal competitors, entered into an agreement to threaten [defendant], and demand that, unless [defendant] terminated [plaintiff’s] existing Producer Agreement and re fused to engage in further dealings with [plaintiff], Intercare [Specialty Risk Services] and Shomer [Insurance Agency Incorporated] would cease to provide brokerage se rvices and stop doing business with [defendant]. Intercare [Sp ecialty Risk Services’] a nd Shomer [Insurance Agency Incorporated’s] accounts represent a subs tantial portion of [defendant’s] book of
business.” In January 2013, defendan t terminated the existing su b-producer agreement with plaintiff. Defendant stopped do ing business with plaintiff in furtherance of the unlawful group boycott. Plaintiff was thereby deni ed important access to defendant’s unique captive insurer products. Plai ntiff’s ability to compete has been severely impaired by defendant’s conduct. Plaintiff alleges th e foregoing anticompetitive conduct produced an antitrust injury.

B. Defendant’s Initial and Amende d Motion to Comp el Arbitration

As noted, on October 25, 2013, defendant moved to compel arbitration. After plaintiff filed its first amended complaint, defendant filed its amended motion to compel arbitration on January 21, 2014 . Defendant asserted the sub-producer agreement between plaintiff and defendant containe d an arbitration provision. At Section XVIII, entitled, “ARBITRAT ION,” the sub-prod ucer agreement provides, “(A) If any dispute, claim or differenc e arises out of or rela tes in any fashion or manner to this Agreement (refe rred to herein after as a ‘d ispute’, including a dispute for which a party seeks specific performance, such Dispute shall be [submitted] to arbitration.” At Section XIX, entitled, “APPLICABLE LAW,” the sub-producer agreement provides: “If any question arises at any time as to the validity, construction,8 interpretation or performance of this Agreement, the law of the State of Florida shall govern and control, without regard to its conflic ts of law principles. The laws of the State of Florida shall be the exclusive law governi ng any dispute arising un der this contract to the exclusion of the laws of any other stat e or jurisdiction.” Under the choice-of-law provision, defendant asserted its motion to compel arbitra tion pursuant to the Revised Florida Arbitration Code. (F la. Stats., § 682.01 et seq.) On March 20, 2014, plaintiff filed its opposition. Plaintiff argued the arbitr ation clause was unconscionable. Plaintiff asserted California law must apply becaus e the choice of law provision violates fundamental public policy. Plaintiff contende d that its antitrust cause of action would be de facto waived if Florida law applied.

C. Order Denying in Part Defendant’s Amended Motion to Compel Arbitration

On May 22, 2014, following a hearing, the trial court granted in part defendant’s amended motion to compel arbitration. Th e amended motion to compel arbitration was granted as to plaintiff’s first and second causes of action for contract and implied covenant breach respectively. The trial cour t ruled the first and se cond causes of action clearly arise from and relate to the sub-pr oducer agreement. The amended motion to compel arbitration was denied as to the third, fourth and ninth causes of action. The trial
court concluded the third and fo urth causes of action did not arise from or relate to the sub-producer agreement under Florida law. The trial court found that enforcing the choice of law provision for the ninth cause of action would create a fundamental conflict
with California law and denied the motion to co mpel arbitration. Proceedings concerning the third, fourth and ninth causes of action we re stayed pending resolution of arbitration
as to the first and second causes of action. Defendant timely appealed the partial denial of its amended motion to compel arbitration.9 III. DISCUSSION

A. The Amended Motion to Compel Arbitr ation is Not Equivalent to Demurrer or
Answer

Defendant argues plaintiff should have so ught leave of court to file its first amended complaint. Defendant has failed to identify any provision of Florida law that supports this contention. But even if Calif ornia law applies, defendant’s contention has
no merit. Defendant relies on Code of Civil Procedure se ction 472, which provides, “Any pleading may be amended once by the pa rty of course, and without costs, at any
time before the answer or demu rrer is filed, or after demurrer and before the trial of the
issue of law thereon . . . .” Defendant also relies upon Code of Ci vil Procedure section 1281.7, which provides, “A pe tition pursuant to Section 1281 .2 [to compel arbitration] may be filed in lieu of filing an answer to a complaint.” Defendant argues that under these two sections, a petition to compel arbitr ation is a proper responsive pleading.
Under defendant’s reas oning, since the petition to compel arbitration is like an answer, plaintiff should have been required to seek l eave of court before amending its complaint. Plaintiff contends defendant failed to pres erve this issue on appeal by not raising it before the trial court and thus waiving it. We agree. Defendant never objected to the filing of plaintiff’s first amended complaint. Defendant cites to a declaration from its counsel, who declared: “Plaintiff’s First Am ended Complaint was filed without leave of Court after [defendant] filed its original Motio n to Compel Arbitration.” This is neither an objection nor is it an argument. It is undis puted plaintiff did not seek leave of the trial court to file the first amended complaint. Nowhere in the declar ation nor in any of defendant’s papers filed in the trial court does defendant compla in that plaintiff’s amendment was improper. Even if this issue was pr operly raised, we disagree with defendant’s argument. Code of Civil Procedure section 422.10 provide s, “The pleadings allowed in civil actions are complaints, demurrers, answers, and cro ss-complaints.” Code of Civil Procedure10 section 422.10 unambiguously defines what plead ings are. Motions, such as the petition to compel arbitration, are not listed therein. No California statute states a motion to compel arbitration is the equivalent of an answer or a demurrer. Defendant relies on
Simmons v. Allstate Insurance Co. (2001) 92 Cal.Ap p.4th 1068, 1073 ( Simmons ) and argues litigants may not “amend[] ar ound” well-taken motions. In Simmons , the defendant, at the hearing on a section 425.16 special motion to strike, was denied leave to amend his cross-complaint. ( Id. at p. 1072.) Here, no such facts are present. The concerns raised by the special motion to strike are inapplicable here. No error occurred in connection with the filing of the first amended complaint without the trial court’s permission.

B. Legal Standard for Arbitration

1. Florida’s appellate standard of review of arbitration issues

We apply the following standard of re view under Florida law to the issue of whether the parties agreed to arbitrate th e fraud and economic interference causes of action: “The question of whether a disputed i ssue is subject to arbitration is a matter of contract interpretation, and our review is de novo. Ocwen Fed. Bank FSB v. LVWD, Ltd.
, 766 So.2d 248, 249 (Fla. 4th DCA 2000). In Citigroup, Inc. v. Boles , 914 So.2d 23 (Fla. 4th DCA 2005), this court disc ussed the application of arbitration provisions: [¶] Notwithstanding that arbitration is favored in the law, constructi on of an arbitration clause remains subject to the contract law requi rement ‘that the court discern the intent of the parties from the language used in their agreement.’ Citigroup, Inc. v. Amodio , 894 So.2d 296, 298 (Fla. 4th DCA 2005). ‘[A]rbi tration is mandatory only where the subject matter of the controversy falls within what the parties have agreed will be submitted to
arbitration.’ Ocwen Fed. Bank FSB v. LVWD, Ltd. , 766 So.2d 248, 249 (Fla. 4th DCA 2000). ‘[I]t is the language of the agreement that defines the scope of an arbitration agreement.’ Amodio, 894 So.2d at 298.” ( Florida Environmental Services, Inc. v.11 Rentoumis (Fla.Dist.Ct.App. 2007) 950 So.2d 46 6, 470.) Under Florida law, in determining whether a cause of action is within the scope of an arbitration agreement, we examine the factual allegations of the first amended complaint. ( Ibid .; Singer v. Gaines (Fla.Dist.Ct.App. 2005) 896 So.2d 851, 854.) In addition, the Federal Arbitration Act a pplies to this action. “Section 2 of the [Federal Arbitration Act] . . . declares that a written agreement to arb itrate in any contract involving interstate commerce or a maritime transaction ‘shall be valid, irrevocable, and enforceable, save upon such gro unds as exist at law or in e quity for the revocation of any contract[]’ . . . .” ( Volt Information Services, Inc. v. Bo ard of Trustees of Leland Stanford Junior University (1989) 489 U.S. 468, 474 ( Volt ), citing 9 U.S.C. § 2.) As previously stated, plaintiff is a California corporation with its principle place of business in Los Angeles, California. Defendant is a Delawa re corporation with its principle place of business in Fort Lauderdale, Florida. Our case arises from a contract evidencing a transaction involving commerce. The United States Supreme Court held: “The [Federal Arbitration Act] was designed ‘to overrule the judiciary’s longst anding refusal to enfo rce agreements to arbitrate,’ [citation], and place such agre ements ‘“upon the same footing as other contracts,”’ [citations].” ( Volt, supra
, 489 U.S. at p. 478.) “A rbitration under the Act is a matter of consent, not co ercion, and parties are generally free to structure their arbitration agreements as they see fit. Just as they may lim it by contract the issues which they will arbitrate, [citation], so too may th ey specify by contract the rules under which
that arbitration will be conduct ed. Where, as here, the par ties have agreed to abide by state rules of arbitration, enforcing those rule s according to the term s of the agreement is fully consistent with the goals of the [Federal Arbitration Act] . . . .” ( Id. at p. 479.) Unless subject to the limited preemptive effe ct of the Federal Arbitration Act, it is undisputed that the arbitra tion provision at issue is s ubject to Florida law. Under Florida’s arbitration statutes, th e following are the controlling principles which apply to plaintiff’s fra ud and economic interference cl aims: “[T]here are three
elements for courts to consid er in ruling on a mo tion to compel arbitration of a given12 dispute: (1) whether a valid written agreem ent to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether th e right to arbitration was waived. (See Terminix Int’l Co., LP v. Ponzio (Fla.Dist.Ct.App. 1997) 693 So.2d 104, 106.)” ( Seifert v. U.S. Home Corp. (Fla. 1999) 750 So.2d 633, 636 ( Seifert ).) The parties do not dispute the existence of a valid arbitration agreement, nor do they argue waiver of the right to
arbitrate has occurred. As to whether an arbitrable issue exists , the Florida Supreme Court held: “[T]he determination of whether an arbitration clause requires arbitration of a particular dispute necessarily ‘rests on the in tent of the parties.’ [Citations.] A natural corollary of this rule is that no party may be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate. [Citations.]” ( Id. at p. 636; see Seaboard
Coast Line R.R. Co. v. Trailer Train Co. (11th Cir. 1982) 690 F.2d 1343, 1352.) The Florida Supreme Court concluded in the co ntext of “arising out of or relating to” agreements: “[E]ven in contracts containing broad arbitration provisions, the determination of whether a particular claim must be submitted to arbitration necessarily depends on the existence of some nexus betw een the dispute and the contract containing the arbitration clause. [¶] Disputes aris e in many and varied contexts and the mere coincidence that the parties in dispute have a contractual re lationship will ordinarily not be enough to mandate arbitration of the disput e. In other words, th e mere fact that the dispute would have arisen but for the ex istence of the contract and consequent relationship between the parties is insufficien t by itself to transform a dispute into one ‘arising out of or relating to’ the agreement. [Citations.] These cases hold that for a tort claim to be considered ‘arising out of or rela ting to’ an agreement, it must, at a minimum,
raise some issue the re solution of which requires refere nce to or construction of some portion of the contract its elf. [Citations.]” ( Seifert
, supra, 750 So.2d at p. 638; see Hersman, Inc. v. Fleming Cos., Inc. (M.D.Ala. 1998) 19 F.Supp .2d 1282, 1286-1287.)13 2. Fraud cause of action

Here, the arbitration clause applied to “a ny dispute, claim, or difference aris[ing] out of or relat[ing] in any fashion or manner to” the sub-pr oducer agreement. The third cause of action alleges defendant made false representations regarding entering into an agency captive insurer agreement. The prop osed agency captive in surer contract is different from the sub-producer agreement. The alleged misrepresentations caused plaintiff to forego other agency captive insurer or similar ag reements. The third cause of
action concerns issues with defendant’s conduc t as to the proposed agency captive insurer agreement. This does not arise out of or relate to the sub-producer agreement. Defendant contends that plaintiff cannot distinguish Florida cases that have held fraud claims fall within the broad scope of th e arbitration clause at issue here. Defendant’s argument is unmeritorious. Florid a courts have held that fraud claims are
related to broad arbitration clauses becaus e the deceit allegedly induced the contract formation or actually invo lved interpretation of the agreement. (See Jackson v. Shakespeare Foundation, Inc. (Fla. 2013) 108 So.3d 587, 5 95 [party’s fraud claim within scope of arbitration provision and inex tricably intertwine d with contract]; Beazer Homes Corp. v. Bailey (Fla.Dist.Ct.App. 2006) 940 So.2d 4 53, 459 [fraud in inducement claim
was within broad arbitration cl ause as it could have been restated as contract breach claim]; Passerrello v. Robert L. Lipton, Inc. (Fla.Dist.Ct.App. 1997) 690 So.2d 610, 611 [fraud in inducement claim as to entire contra ct was within broadly stated arbitration clause].) Here, no such contractual nexus ex ists between the alleged fraud and the subproducer agreement. Under Florida law, pl aintiff’s fraud claim does not “raise some
issue the resolution of which requires reference to or co nstruction of some portion of” the sub-producer agreement. ( Seifert
, supra, 750 So.2d at 638; see Vernett v. AmericanIndian Enterprises, Inc. (Fla.Dist.Ct.App. 2014) 152 So.3d 856, 858.)14 3. Intentional Prospective Economic Advantage Interference Cause of Action

The fourth cause of action alleges defe ndant interfered with plaintiff’s economic relationship with Safety National Insurance. As previously recounte d, plaintiff was also discussing entering into a captiv e insurer agreement with Safe ty National Insurance. Because of Mr. Mariano’s alleged misreprese ntations concerning a potential agreement, plaintiff ceased its negotiations with Safety Na tional Insurance. This interference with a potential agreement with Safety National Insurance does not arise out of or relate to the sub-producer agreement.
Defendant’s citation to Florida cases is unpersuasive. None of the Florida cases support defendant’s assertion. (See Xerox Corp. v. Smartech Document Management,
Inc. (Fla.Dist.Ct.App. 2007) 979 So.2d 957, 959-960 [intentional interference with advantageous business relationship claim fell within broadly stated clause]; Henderson v.
Idowu (Fla.Dist.Ct.App. 2002) 828 So.2d 451, 453 [inten tional interference with advantageous business relationship claim fell within broad arbitration clause because it related to employment contract containing the agreement to arbitrate] .) Here, plaintiff’s intentional interference with prospective economic advantage cause of action has no nexus to the sub-producer agreement. It doe s not require “reference to or construction of” the sub-producer agreement. ( Seifert, supra, 750 So.2d at 638; see Kolsky v. Jackson (Fla.Dist.Ct.App 2010) 28 So. 3d 965, 969.) The trial cour t did not err by finding this
cause of action not arbitrable.

C. Ninth Cause of Action

The ninth cause of action, vi olation of the Cartwright Ac t, raises different issues than the foregoing analysis concerning the th ird and fourth causes of action. To begin with, the ninth cause of action arises out of or relates to the sub-producer agreement. Plaintiff alleges that defendant terminated the sub-producer agreement under threat from Intercare Specially Risk Services and Shom er Insurance Agency Incorporated. This15 cause of action thus necessarily requires “reference to or construction of” the subproducer agreement as it re lates to defendant. ( Seifert, supra, 750 So.2d at p. 638; see BKD Twenty-One Management Co., Inc. v. Delsordo (Fla.Dist.Ct.App. 2012) 127 So.3d 527, 531.) Because the ninth cause of action ar ises out of or relates to the sub-producer agreement, under Florida cont ract law, it potentially is subject to the arbitration agreement. Under Florida law, the controlling revisi on concerning enforcement of arbitration agreements is Florida Statutes section 682.02, subdivisions (1) and (2) which state: “(1) An agreement contained in a record to subm it to arbitration any existing or subsequent controversy arising between the parties to the agreement is va lid, enforceable, and irrevocable except upon a ground that exists at law or in e quity for the revocation of a contract. [¶] (2) The court shall decide wh ether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate.” Any inconsis tency between Florida
Statutes section 682.02 and the Federal Arbitra tion Act must be resolved in favor of the federal law. ( Rewards Hotel Management Company, LL C v. Elite General Contractors,
Inc. (Fla.Dist.Ct.App. 2003) 860 So.2d 1011, 1014; Trojan Horse, Inc. v. Lakeside
Games (Fla.Dist.Ct.App. 1988) 526 So.2d 194, 196.) Under Florida law, any challenge
to the enforceability of an arbitration agreement on pub lic policy grounds is resolved by the trial court, not the arbitrator. ( Shotts v. OP Winter Haven, Inc. (Fla. 2011) 86 So.3d 456, 471 ( Shotts ); AMS Staff Leasing, Inc. v. Taylor (Fla.Dist.Ct.App. 2015) 158 So.3d 682, 685.) The Florida Supreme Court has held that an agreement to arbitrate is unenforceable if it violates public policy. ( Gessa v. Manor Care of Florida, Inc. (Fla. 2011) 86 So.3d 484, 493 ( Gessa ); Shotts, supra, 86 So.3d at p. 465.) Under Florida law, an arbitration agreement violates public po licy if it defeats the purpose of a remedial statute. ( McKenzie Checked Advance of Florida, LLC v. Betts (Fla. 2013) 112 So.3d 1176, 1183; Lacey v. Healthcare & Retirement Corp. of America (Fla.Dist.Ct.App. 2005) 918 So.2d 333, 334.) Similarly, an arbitrati on agreement that diminishes or circumvents remedies provided by a remedial statute violates public policy and is thus unenforceable.16 ( Gessa, supra , 86 So.3d at p. 493; Shotts, supra, 86 So.3d at p. 474.) A remedial statute is one that provides redress for a grievanc e or that confers or changes a remedy. ( Capone v. Philip Morris USA, Inc. (Fla. 2013) 116 So.3d 363, 376; Blankfield v. Richmond Health Care, Inc. (Fla.Dist.Ct.App. 2005) 902 So.2d 296, 298.) A remedial statute provides regulations which are conducive to the public good. ( Capone v. Philip Morris USA, Inc. , supra, 116 So.3d at p. 376; Lacey v. Healthcare & Retirement Corp. of
America , supra, 918 So.2d at p. 334.)
We now turn to Florida’ s antitrust laws to determin e if their enforcement will diminish any of plaintiff’s rights. Flor ida has its own antitrust statutes. (See MYD Marine Distributor, Inc. v. Internat. Paint Limited (Fla.Dist.Ct.App. 2011) 76 So.3d 42, 46; Duck Tours Seafari, Inc. v. City of Key West (Fla.Dist.Ct.App. 20 04) 875 So.2d 650, 652.) Florida Statutes section 542.18 states, “Every contract, combination, or conspiracy
in restraint of trade or comme rce in this state is unlawful. ” Florida Statutes section 542.19 states, “It is unlawful for any person to monopolize, attemp t to monopolize, or combine or conspire with any other person or persons to monopolize any part of trade or
commerce in this state.” An unlawful horizontal restrain t can occur when competitors conspire to induce an entity wh ich deals with them to cease dealing with another market competitor. ( Parts Depot Company, L.P. v. Florida Auto Supply, Inc. (Fla.Dist.Ct.App. 1996) 669 So.2d 321, 324; St. Petersburg Yacht Charters, Inc. v. Morgan Yacht, Inc. (Fla.Dist.Ct.App. 1984) 457 So .2d 1028, 1040.) Plaintiff ar gues that if Florida antitrust law applies, it cannot recover for losses incurre d outside that state. The only Florida antitrust decision expressly on point is Oce Printing Systems USA, Inc. v. Mailers Data Services, Inc. (Fla.Dist.Ct.App. 2000) 760 So.2d 10 37, 1041, which holds: “[I]t appears from the plain language of the Antitrust Act that it is aimed at regulating trade or
commerce that occurs in Flor ida, regardless of where the contract, conspiracy, or monopoly occurs. It is the effect on trade that must occur in Florida, not the actions giving rise to the effect on trade.”].) Pl aintiff’s alleged damages were sustained in California. Plaintiff alleges it, Intercare Sp ecialty Risk Services and Shomer Insurance Agency, Incorporated are competitors in the same insu rance field in the greater Los17 Angeles area. Plaintiff alleges the misconduc t all occurred in Los Angeles County. Thus, plaintiff would be unable to state a cl aim under Florida Statutes, sections 542.18
and 542.19. None of the alle gations in the first amended co mplaint allege any effect on
trade or commerce in Florida. Under Florida antitrust law, pl aintiff is unable to recover any damages for any of the conduct occurring in Los Angeles County. Thus, under Florida law, the agreement to arbitrate plaint iff’s antitrust claims violates that state’s public policy. Plaintiff cannot recover for any damages sustained in Los Angeles County arising from the alleged horizontal restraint on trade under Florida law. Thus, as to plaintiff’s horizontal restraint claims, the ar bitration agreement is unenforceable. We need not address the parties’ alternative argu ments concerning a violation of California’s fundamental public policies.18 IV. DISPOSITION

The order denying in part the amended motio n to compel arbitration is affirmed. Plaintiff, HCF Insurance Agency, may recove r its appeal costs from defendant, Patriot Underwriters, Incorporated.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

KRIEGLER, J.

GOODMAN, J. *

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.19