In Roberts v. El Cahon Motors, Inc., ___ Cal.App.4th ___ (Nov. 8, 2011), the Court of Appeal (Fourth Appellate District, Division One) rejected the argument that it was okay for a defendant to wait and see how the Supreme Court would rule in Concepcion before seeking to compel arbitration:
At oral argument, El Cajon argued it waited to compel arbitration because it was unsure of the state of the law regarding the enforceability of the waiver of classwide claims in the arbitration provision at issue here, as evidenced by the U.S. Supreme Court's recent decision in Concepcion and by other recent cases (see e.g., Smith v. Americredit Fin. Servs., Inc. (S.D.Cal. 2009) 2009 WL 4895280). We find this excuse unavailing. El Cajon cannot proverbially "have its cake and eat it too." That is, if El Cajon wanted to arbitrate the dispute involving Roberts, it should have promptly invoked arbitration regardless of the validity of the waiver provision in the arbitration provision. After all, Concepcion was not decided until April 2011, more than a year after El Cajon moved to compel arbitration. In addition, El Cajon's argument assumes that Concepcion would have been decided favorably to El Cajon, which of course was entirely speculative at the time El Cajon moved to compel arbitration. Finally, Concepcion arguably does not preempt "all California law relating to unconscionability" because "[g]eneral state law doctrine pertaining to unconscionability is preserved unless it involves a defense that applies 'only to arbitration or that derive[s its] meaning from the fact that an agreement to arbitrate is at issue.' " (Mission Viejo Emergency Medical Associates. v. Beta Healthcare Group (2011) 197 Cal.App.4th 1146, 1158, fn. 4, quoting Concepcion, supra, 563 U.S. at p. ___ [131 S.Ct. at p. 1746].) Here, whether the arbitration provision was valid and enforceable notwithstanding the waiver of classwide claims in that provision was an issue between the parties, as evidenced by the trial court's alternative finding the arbitration provision was substantively and procedurally unconscionable. (See fn. 7, ante.)
Slip op. at 19 n.10. The quotation from Mission Viejo is interesting because that case was not a class action (which Roberts is).
Matt Bailey has a lengthier post on Roberts over at his blog, Bailey Class Action Daily.