In Lee v. Southern California University for Professional Studies, ___ Cal.App.4th ___ (Mar. 16, 2007), the Court of Appeal (Fourth Appellate District, Division Three) affirmed an order denying a motion to compel arbitration, holding that if the class representative did not sign a contract with an arbitration clause, such a motion may not be granted even if members of the putative class did. The first paragraph of the opinion reads:
Plaintiff Patricia Lee sued the Southern California University for Professional Studies for violation of the Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.) and Business and Professions Code section 17200. The complaint includes class action allegations. Because some of the potential class members — not including Lee — signed a contract including an arbitration clause, defendant filed a motion to compel arbitration, which the trial court denied. We affirm and find that no grounds exist for compelling arbitration when the only plaintiff currently before the court never agreed to arbitrate her claims. The question of whether she is an adequate class representative for those who did, and all other matters pertaining to whether the action is appropriate for class treatment, are issues for the trial court to decide when Lee moves to certify the class.
Slip op. at 2. The opinion also makes the interesting point that the class certification motion need not exactly track the class definition pleaded in the complaint:
Lee has not, as of yet, brought a motion to certify any class. It is quite possible that when she does so, she will seek to narrow the definition of the class to law students only, none of whom signed arbitration agreements, according to SCUPS’s own evidence. She is certainly entitled to do that — SCUPS offers no authority for the proposition that a plaintiff is bound by a preliminary class definition set forth in the complaint. It is also possible (and this court takes no position on this) that however Lee defines the class, any motion for class certification will be denied for other reasons. We cannot know this, of course, because there has, as of yet, been no such motion. Lee is the only plaintiff before the court at the moment, and she is not bound by an arbitration agreement; therefore, she cannot be compelled to arbitrate.
Slip op. at 5 (footnote omitted). Finally, the opinion reiterates the rule, adopted by the Supreme Court in 2003, that UCL injunctive relief claims are not arbitrable in any event:
SCUPS next argues that because the UCL claim is a representative action, Lee is bound by the arbitration agreements of some of the individuals she seeks to represent. Lee’s UCL claim, however, seeks only injunctive relief. Even if Lee had consented to an arbitration clause, she would not be required to arbitrate a claim under the UCL that seeks only injunctive relief on behalf of the public, as opposed to restitution and/or disgorgement of profits. (Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal.4th 303, 315-316 (Cruz).) Thus, if she had signed an agreement with an arbitration clause, Lee’s claim for damages under the CLRA would be arbitrable. But her claims for injunctive relief, under either the CLRA or UCL, would not be. (Id. at pp. 311-316.)
Slip op. at 5-6.