Concepcion and the California Supreme Court (Updated 11/19/13)

The Center for Civic Mediation and LA County Bar are presenting a program tonight on the law of arbitration: "Will California Arbitration Law Survive the United States Supreme Court?" The panel includes Judge Daniel Buckley of the LASC, Richard Chernick, and my friend Debbie Saxe. I'm sure it will be entertaining and interesting.

So this seems like an appropriate time to update my list of cases in which the California Supreme Court has either granted or denied review of issues raised in AT&T Mobility LLC v. Concepcion (2011) 563 U.S. ___. Clicking on the case name will bring you to my discussion of it. I have listed the cases in chronological order, with their key rulings. The most recent cases are at the bottom.

Brown v. Ralphs Grocery Co. (7/12/11) 197 Cal.App.4th 489, review denied 10/19/2011:

• Wage and hour class action and PAGA representative action.
• Did not decide whether Concepcion overrules Gentry v. Superior Court (2007) 42 Cal.4th 443. 
• Concepcion does not apply in cases brought under the Labor Code Private Attorneys General Act (PAGA). 

Sanchez v. Valencia Holding Co., LLC (11/23/11) 201 Cal.App.4th 74, review granted 3/21/12 (Case No. S199119):

• Putative consumer class action under the Consumers Legal Remedies Act (CLRA), the Unfair Competition Law (UCL), and other California statutes. 
• Concepcion does not prevent courts from applying unconscionability analysis. 
• The arbitration agreement at issue was unconscionable and unenforceable. 
• Did not address enforceability of class action waiver. 

Wisdom v. AccentCare, Inc. (1/3/12) 202 Cal.App.4th 591, review granted 3/28/12 (Case No. S200128), dismissed 7/24/13:

• Multi-plaintiff wage and hour case (not class or representative PAGA action). 
• Without addressing Concepcion, held that arbitration agreement at issue was unconscionable and unenforceable. 
• Review apparently limited to issue of whether certain language is unconscionably unilateral or creates a mutual obligation to arbitrate. 
• Dismissed after settlement. 

Buzenes v. Nuvell Financial Services (1/25/12) review granted 5/9/12 (Case No. S200376) and briefing deferred pending Sanchez v. Valencia Holding Co.: 

• Individual consumer action under the Unfair Competition Law (UCL), and other California statutes and common law theories. 
• Concepcion does not prevent courts from applying unconscionability analysis. 
• The arbitration agreement at issue was unconscionable and unenforceable. 

Mayers v. Volt Management Corp. (2/2/12) 203 Cal.App.4th 1194, review granted 6/13/12 (Case No. S200709):

• Individual action under the California Fair Employment and Housing Act (FEHA). 
• Concepcion does not prevent courts from applying unconscionability analysis. 
• The arbitration agreement at issue was unconscionable and unenforceable. 

Samaniego v. Empire Today LLC (4/5/12) 205 Cal.App.4th 1138, review denied 7/11/12:

• Putative wage and hour class action. 
• Concepcion does not prevent courts from applying unconscionability analysis. 
• The arbitration agreement at issue was unconscionable and unenforceable. 

Kinecta Alternative Financial Solutions, Inc. v. Superior Court (4/25/12) 205 Cal.App.4th 506, review denied 7/11/12:

• Putative wage and hour class action. 
• The Court did not decide whether Concepcion overrules Gentry. 
• Assuming that Gentry is still good law, the plaintiff did not meet her burden of proving the Gentry factors. 
• Class arbitration was not authorized, citing Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. ___ (2010), so the class claims should have been dismissed. 

Hoover v. American Income Life Ins. Co. (6/13/12) 206 Cal.App.4th 1193, review denied 09/12/12:

• Putative wage and hour class action. 
• Defendant waived right to arbitrate by delaying motion. 
• Defendant failed to show that the contract at issue involved interstate commerce, the FAA did not apply, Labor Code section 229 was not preempted, and the defendant could not compel arbitration. 
• Claims for public injunctive relief are not subject to arbitration. 

Iskanian v. CLS Transportation L.A., LLC (6/4/12) 206 Cal.App.4th 949, review granted 9/19/12 (Case No. 204032): 

• Putative wage and hour class action. 
• Concepcion overruled Gentry. 
• The NLRB incorrectly decided D.R. Horton. 
• Concepcion applies to PAGA actions. 
• Contrary to Reyes v. Macy’s Inc. (2011) 202 Cal.App.4th 1119, the plaintiff could pursue individual PAGA claims in arbitration. 

Nelsen v. Legacy Partners Residential, Inc. (7/18/12) 207 Cal.App.4th 1115, review denied 11/2/12:

• Assuming (without deciding) that Gentry is still good law, the plaintiff did not make the factual showing required by Gentry. 
• The NLRB incorrectly decided D.R. Horton, and in any case the NLRB likely did not apply to the plaintiff, who was an apartment manager. 
• Concepcion abrogates California's Broughton-Cruz rule that actions for public injunctive relief are not subject to arbitration. 

Caron v. Mercedes-Benz Financial Services USA LLC (7/30/12) 208 Cal.App.4th 26, review granted 10/24/12 (Case No. 205263) and briefing deferred pending Iskanian:

• Putative consumer class action under the Consumers Legal Remedies Act (CLRA), the Unfair Competition Law (UCL), and other California statutes. 
• The FAA preempts the CLRA's prohibition of class action waivers. 

Truly Nolen of America v. Superior Court (Miranda) (8/9/12) 208 Cal.App.4th 487, no petition for review filed.

• Putative wage and hour class action. 
• Concepcion "implicitly disapproved the reasoning of the Gentry," but lower courts should adhere to Gentry until the Supreme Court rules on the issue. 
• Even if Gentry still is good law, the plaintiffs failed to establish the Gentry factors. 
• Remanded to the trial court to determine whether the parties had an implied agreement to engage in class arbitration. 
• Declined to follow D.R. Horton. 
• The plaintiffs waived their argument that the arbitrator, rather than the trial court, should determine whether the matter could proceed as a class arbitration. 

Goodridge v. KDF Automotive Group, Inc. (8/24/12) 209 Cal.App.4th 325, review granted 12/19/12 (Case No. S206153) and briefing deferred pending Sanchez v. Valencia Holding Co.:

• Consumer class action under the Consumers Legal Remedies Act (CLRA), the Unfair Competition Law (UCL), and other California statutes. 
• The arbitration agreement at issue was unconscionable and unenforceable. 
• Did not address presence or enforceability of class action waiver. 

Reyes v. Liberman Broadcasting Inc. (8/31/12) --- Cal.App.4th ---, review granted 12/12/12 (Case No. 205907) and briefing deferred pending Iskanian:

• Putative wage and hour class action and PAGA representative action. 
• Given the possibility that California law prior to Concepcion barred enforcement of the arbitration agreement, the defendant did not waive its right to arbitration by not making its motion sooner. 
• The NLRA does not prohibit enforcement of arbitration agreements that do not provide for class arbitration. 

Phillips v. Sprint PCS (9/26/12) --- Cal.App.4th ---, review denied 12/19/12:

• Putative consumer class action. 
• Trial court did not abuse discretion in allowing defendant to renew petition to compel arbitration after Concepcion. 
• The trial court correctly determined that the arbitrator should decide whether the contract as a whole, rather than just its class action waiver clause, was unconscionable and unenforceable. 

Elijahjuan v. Superior Court (10/17/12) 210 Cal.App.4th 15, review denied 1/16/13:

• Putative wage and hour class action alleging misclassification of independent contractors. 
• Alleged misclassification of petitioners as independent contractors did not fall within relatively narrow scope of arbitration agreement. 

Franco v. Arakelian Enterprises, Inc. (11/26/12) 211 Cal.App.4th 314, review granted 2/13/13 (Case No. S207760) and briefing deferred pending Iskanian:

• Putative wage and hour class action. 
• Gentry remains good law after Concepcion and invalidated the class action waiver. 
• Because the class action waiver was invalid, Stolt-Nielsen required that the action remain in court, where plaintiff could pursue class certification. 

Baltazar v. Forever 21, Inc. (12/20/12) 212 Cal.App.4th 221, review granted 3/20/13 (Case No. S208345), briefing originally deferred pending Wisdom v. Accentcare, briefing ordered on 8/28/13:

• Individual discrimination action. 
• Unconscionability analysis survives Concepcion. 
• The defendant did not offer evidence to show that the agreement evidenced "a transaction involving commerce," so the California Arbitration Act (CAA) applied, rather than the Federal Arbitration Act (FAA). 
• Because the CAA allows parties to seek provisional remedies in court, arbitration agreement allowing parties to do so was not substantively unconscionable. 

Flores v. West Covina Auto Group (1/11/13) 212 Cal.App.4th 895, review granted 4/10/13 (Case No. S208716) and briefing deferred pending Iskanian:

• Putative consumer class action under the Consumers Legal Remedies Act (CLRA), Automobile Sales Finance Act (ASFA), and Unfair Competition Law (UCL). 
• FAA preempts the CLRA's prohibition on class action waivers. 
• Arbitration agreement was somewhat procedurally unconscionable, but not substantively unconscionable. 

Natalini v. Import Motors (1/7/13, pub. 2/5/13) 213 Cal.App.4th 587, review granted 5/1/13 (Case No. S209324) and briefing deferred pending Sanchez v. Valencia Holding Co.:

• Concepcion does not invalidate unconscionability analysis. 
• The arbitration agreement was procedurally and substantively unconscionable. 

Compton v. Superior Court (American Management Services, LLC) (3/19/13) 214 Cal.App.4th 873, review granted 6/12/13 (Case No. S210261) and briefing deferred pending Sanchez v. Valencia Holding Co.:

• Putative wage and hour class action. 
• Unconscionability analysis survives Concepcion. 
• Agreement was unenforceable as procedurally and substantively unconscionable. 

Vasquez v. Greene Motors, Inc. (3/27/13) 214 Cal.App.4th 1172, review granted 6/27/13 (Case No. S210439) and briefing deferred pending Sanchez v. Valencia Holding Co.:

• Putative consumer class action under the Consumers Legal Remedies Act (CLRA), Automobile Sales Finance Act (ASFA), and Unfair Competition Law (UCL). 
• Arbitration agreement was enforceable. It was procedurally unconscionable because presented on a take-it-or-leave-it basis, but it was not so substantively unconscionable as to "shock the conscience." 
• Under Concepcion, FAA preempts arguments that class action waiver and required arbitration of "public" claims were substantively unconscionable. 

Vargas v. SAI Monrovia B, Inc. (6/4/13) 216 Cal.App.4th 1269, review granted 8/21/13 (Case No. S212033) and briefing deferred pending Sanchez v. Valencia Holding Co.:

• As in Sanchez, arbitration provision in standard automobile retail installment sale contract was unconscionable and unenforceable. 

Leos v. Darden Restaurants, Inc. (6/4/13, pub. 6/24/13) --- Cal.App.4th ---, review granted 9/11/13 (Case No. S212511) and briefing deferred pending Baltazar v. Forever 21:

• Individual action for sexual harassment, retaliation, and wrongful termination. 
• Defendant did not present evidence that any relevant transaction "involved interstate commerce," and the Federal Arbitration Act (FAA) did not apply. 
• Arbitration agreement was substantively unconscionable, but not substantively unconscionable. 

Brown v. Superior Court (Morgan Tire & Auto, LLC) (6/4/13) 216 Cal.App.4th 1302, review granted 9/11/13 (Case No. S211962) and briefing deferred pending Iskanian:

• Representative PAGA wage and hour action. 
• Defendant did not waive its right to compel arbitration by litigating in court before Concepcion. 
• The NLRB incorrectly decided D.R. Horton. 
• All PAGA actions are representative actions. 
• FAA does not preempt California law prohibiting waiver of an employee's right to bring a PAGA representative action. 
• Trial court should have compelled individual arbitration of non-PAGA claims. 

Continue to stay tuned. I will continue to update this list every couple of months as new cases come down. And if you know of any cases that I've missed, feel free to drop me a line.