In Flores v. West Covina Auto Group, ___ Cal.App.4th ___ (Jan. 11, 2013), the Court of Appeal (Second Appellate District, Division Eight) affirmed an order compelling arbitration in a putative class action brought under the CLRA.
The panel held (among other things) that under Concepcion, the FAA preempts the CLRA's no-waiver provision (Civil Code section 1751) and, accordingly, the no-class-action arbitration clause in the vehicle installment sale contract was enforceable. Slip op. at 10-15. This part of the opinion concludes:
In sum, the CLRA’s prohibition against class waivers is preempted by the FAA. The waiver of class arbitration rights in appellants’ sales contract is not unenforceable under the CLRA. The poison pill provision ‑‑ which makes the arbitration clause unenforceable if the class arbitration waiver is unenforceable ‑‑ is thus not triggered.
Id. at 15.
The Court of Appeal reached a similar conclusion in Caron v. Mercedes-Benz Financial Services USA LLC, 145 Cal.Rptr.3d 296 (2012) (discussed in this blog post). The Supreme Court granted review in Caron on October 24, 2012. Caron v. Mercedes-Benz Fin. Servs. USA, No. S205263. Briefing has been deferred in Caron pending resolution of Iskanian v. CLS Transportation, No. S204032.
Like Caron, Flores creates a split in authority with Fisher v. DCH Temecula Imports LLC, 187 Cal. App. 4th 601 (2010) (discussed in this blog post). A "grant and hold" order is very possible here as well, if a petition for review is filed.