In Sherf v. Rusnak/Westlake et al., 2012 WL 4882547 (Cal.App. 2 Dist. 2012), the Court of Appeal in an unpublished decision, followed a similar analysis to the Caron decision, finding the class action waiver and arbitration clause in an automobile RISC enforceable, but remanding to the trial court for a determination of unconscionability. Sherf had signed a typical RISC for the purchase of a BMW car. The Contract was a one-page printed form provided by Rusnak and had provisions on both sides of the page. . . The complaint alleges that Rusnak improperly charged Sherf a statutory “tire fee” of $1.75 for a spare tire which was not provided or purchased. The complaint also alleges that Rusnak improperly charged him $1,149 for a tire service contract which was applicable only to “run flat” tires and not to the M Mobility tires installed on his car. Rusnak filed a petition to arbitrate, which the trial court denied. The Court of Appeal reversed and remanded.
Rusnak contends that the trial court erred in denying its motion to compel arbitration because, under Concepcion, the class action waiver provision in the arbitration agreement is enforceable. Rusnak also contends that any injunctive relief claim is subject to arbitration under the arbitration agreement. We agree that the class action waiver is enforceable under Concepcion, and conclude that Sherf has conceded Rusnak’s contention regarding injunctive relief. ¶ . . . Sherf asserts that the CLRA creates a statutory right to bring a class action and seek injunctive relief. Relying on Fisher v. DCH Temecula Imports LLC, supra, 187 Cal.App.4th 601, he argues that statutory rights may not be waived. We acknowledge that some cases give greater weight to the vindication of statu-tory rights in determining the enforceability of an arbitration agreement, but no special status is given statutorily-created rights in Concepcion. ¶ Although not cited by Sherf or in Concepcion, our Supreme Court has relied on statutory rights to invalidate a class action waiver in the context of employee rights. In Gentry v. Superior Court (2007) 42 Cal.4th 443, the court concluded that a class arbitration waiver in a case alleging violations of the Labor Code might “impermissibly interfere with employees’ ability” to enforce his or her unwaivable statutory right to enforce overtime pay laws. (Id. at p. 463.) Gentry concludes that, when a court concludes that “a class arbitration is likely to be a significantly more effective practical means of vindicating the rights of the affected employees than individual litigation or arbitration, and finds that the disallowance of the class action will likely lead to a less comprehensive enforcement of overtime laws …, it must invalidate the class arbitration waiver.” (Ibid.) ¶ There has been disagreement in the courts whether Gentry survives Concepcion in the area of employee rights. One appellate court has stated in dictum Gentry remains good law after Concepcion because “ ‘… Discover Bank is a case about unconscionability, [whereas] Gentry is concerned with the effect of a class action waiver on unwaivable rights regardless of unconscionability.’ ” ( Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489, 498.) Our Supreme Court has granted review in another case which concluded that Concepcion invalidated Gentry by making no distinction between statutory provisions and judicial decisions that serve as obstacles to enforcement of arbitration agreements. (Iskanian v. CLS Transp. Los Angeles (2012) 208 Cal.App.4th 949, review granted Sept. 19, 2012, S204032.) ¶ We need not comment on the continuing viability of Gentry because the instant case does not deal with employment issues. We conclude, however, that Concepcion rejects the argument that class action waivers in consumer contracts can be invalidated in order to vindicate statutory rights even if the statutory right is desirable for other reasons. Concepcion expressly concludes that nothing in FAA “suggests an intent to preserve state-law rules that stand as an obstacle to the accomplishment of the FAA’s objectives,” and arbitration agreements must be enforced “notwithstanding any state substantive or procedural policies to the contrary.” ( Concepcion, supra, 131 S.Ct. at pp. 1748–1749.) ¶ . . . The order of the trial court denying Rusnak’s motion to compel arbitration is reversed, and the matter is remanded to the trial court for a determination of whether an arbitration agreement is unconscionable under general principles of California law. Costs on appeal are awarded to appellants.