In Natalini v. Import Motors, Inc., 2015 WL 8772839, at *2-3 (Cal.App. 1 Dist., 2015) (unpublished), the Court of Appeal was called upon to determine post-Sanchez whether a car dealer’s petition to arbitrate should still be denied once the unconscionability analysis is removed.  The Court of Appeal said that there was an insufficient evidentiary basis upon which the existence of a valid arbitration clause in the RISC was established.   The Court of Appeal summarized the procedural posture and its holding as follows:

Plaintiff and respondent Gabriel Natalini (respondent), a car buyer, filed this action alleging individual and class claims against defendant and appellant Import Motors, Inc. (appellant), a car dealer. Appellant filed a petition to compel arbitration pursuant to a provision in the car sales contract, but the trial court denied the petition because appellant had not proven the existence of an arbitration agreement, appellant had waived its right to pursue arbitration, and the arbitration provision was unconscionable. This court affirmed in an appeal filed January 7, 2013, on the basis that the arbitration provision was unconscionable; we did not address the trial court’s other grounds for denying appellant’s petition. (Natalini v. Import Motors, Inc. (2013) 213 Cal.App.4th 587 (Natalini I ).)  The California Supreme Court granted review and, on September 30, 2015, the Court transferred the matter for reconsideration in light of Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899 (Sanchez ). Sanchez held that terms substantively identical to those considered in our decision did not render an arbitration provision unconscionable. Although Sanchez undermines the reasoning of our prior decision, we again affirm the trial court’s denial of the petition for arbitration, now on the basis that appellant failed to prove the existence of an arbitration agreement.

The Court of Appeal found the declaration of counsel purportedly establishing the authenticity of the RISC to be insufficient to meet the dealer’s burden of shifting the burden to the customer.

In arguing the trial court erred in concluding it had not met its burden of proving the existence of an arbitration agreement, appellant relies on the Fourth District’s decision in Condee v. Longwood Management. Corp. (2001) 88 Cal.App.4th 215 (Condee ). There, the court stated, “For purposes of a petition to compel arbitration, it is not necessary to follow the normal procedures of document authentication.” (Id. at p. 218.) Condee reasoned that section 1281.2 does not require that the arbitration agreement be admitted into evidence or that the trial court determine the agreement’s validity. (Condee at p. 219.) Condee also emphasized the language of then rule 371 of the California Rules of Court (now rule 3.1330), which requires the petitioner to attach a copy of the agreement to the petition or to set forth its “provisions” in the petition. (Condee, at p. 219.) Condee concluded a petitioner is obligated only to “allege the existence of an agreement and support the allegation as provided in” the California Rules of Court; “[o]nce the petitioners had alleged that the agreement exists, the burden shifted to respondents to prove the falsity of the purported agreement.” (Condee, at p. 219.)   In the present case, appellant asserts it satisfied its burden as described in Condee by attaching the arbitration provision to its counsel’s declaration and by setting forth the language of the provision in the petition. It asserts, “[r]espondent then had the burden of proving the falsity of the agreement.” Appellant’s argument is a valid interpretation of Condee, but Condee fails to follow the California Supreme Court’s directives in Rosenthal on that point, as explained by another Fourth District decision. . . .Appellant does not argue it presented admissible evidence of the existence of an arbitration agreement, and it does not explain how its showing was sufficient to satisfy the requirements of Rosenthal, supra, 14 Cal.4th 394. Neither does appellant contend the trial court abused its discretion in declining to consider appellant’s supplemental declaration from its custodian of records. And, although respondent attached a contract with an arbitration provision to the Complaint, appellant denied the allegations of the Complaint in its answer and appellant does not argue respondent is estopped from disputing the existence of an arbitration agreement. Appellant has not shown the trial court erred in denying appellant’s petition on the basis that appellant failed to prove the existence of an agreement to arbitrate.

So, the class action proceeds in the superior court.  This serves as a reminder that the trial courts look for any basis to avoid Sanchez/Concepcion.