This case was last updated from Los Angeles County Superior Courts on 10/10/2021 at 01:06:06 (UTC).

VICTOR SAAVEDRA VS BMW OF NORTH AMERICA, LLC., A DELAWARE LIMITED LIABILITY COMPANY,, ET AL.

Case Summary

On 08/12/2020 VICTOR SAAVEDRA filed a Personal Injury - Other Personal Injury lawsuit against BMW OF NORTH AMERICA, LLC , A DELAWARE LIMITED LIABILITY COMPANY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are DAVID J. COWAN and KEVIN C. BRAZILE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0571

  • Filing Date:

    08/12/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DAVID J. COWAN

KEVIN C. BRAZILE

 

Party Details

Plaintiff

SAAVEDRA VICTOR

Defendants

BMW OF NORTH AMERICA LLC. A DELAWARE LIMITED LIABILITY COMPANY

NICK ALEXANDER IMPORTS A CALIFORNIA LIMITED LIABILITY COMPANY

Attorney/Law Firm Details

Plaintiff Attorney

DAVOODI NATAN

Defendant Attorney

CHINERY JACQUELINE BRUCE

 

Court Documents

Notice of Ruling

3/9/2021: Notice of Ruling

Order - RULING: FEBRUARY 3, 2021

2/3/2021: Order - RULING: FEBRUARY 3, 2021

Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL ARBITRATION; CASE MANAGEMENT CONF...)

2/3/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION TO COMPEL ARBITRATION; CASE MANAGEMENT CONF...)

Opposition - OPPOSITION TO MOTION TO COMPEL ARBITRATION

1/20/2021: Opposition - OPPOSITION TO MOTION TO COMPEL ARBITRATION

Notice of Case Reassignment and Order for Plaintiff to Give Notice

12/22/2020: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Declaration - DECLARATION OF TYLER WEIGHT ISO MTC ARB

11/25/2020: Declaration - DECLARATION OF TYLER WEIGHT ISO MTC ARB

Motion to Compel Arbitration

11/25/2020: Motion to Compel Arbitration

Declaration - DECLARATION OF RONALD GRIPP ISO MTC ARB

11/25/2020: Declaration - DECLARATION OF RONALD GRIPP ISO MTC ARB

Case Management Statement

11/12/2020: Case Management Statement

Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

11/24/2020: Minute Order - MINUTE ORDER (CASE MANAGEMENT CONFERENCE)

Answer

9/18/2020: Answer

Answer

9/29/2020: Answer

Proof of Personal Service

8/20/2020: Proof of Personal Service

Proof of Personal Service

8/20/2020: Proof of Personal Service

Summons - SUMMONS ON COMPLAINT

8/12/2020: Summons - SUMMONS ON COMPLAINT

Civil Case Cover Sheet

8/12/2020: Civil Case Cover Sheet

Notice of Case Assignment - Unlimited Civil Case

8/12/2020: Notice of Case Assignment - Unlimited Civil Case

Complaint

8/12/2020: Complaint

9 More Documents Available

 

Docket Entries

  • 11/09/2021
  • Hearing11/09/2021 at 08:30 AM in Department 20 at 111 North Hill Street, Los Angeles, CA 90012; Post-Arbitration Status Conference

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  • 03/09/2021
  • DocketNotice of Ruling; Filed by BMW OF NORTH AMERICA, LLC., a Delaware Limited Liability Company, (Defendant); NICK ALEXANDER IMPORTS, a California Limited Liability Company (Defendant)

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  • 02/03/2021
  • Docketat 08:30 AM in Department 20, Kevin C. Brazile, Presiding; Hearing on Motion to Compel Arbitration - Held - Motion Granted

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  • 02/03/2021
  • Docketat 08:30 AM in Department 20, Kevin C. Brazile, Presiding; Case Management Conference - Held

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  • 02/03/2021
  • DocketRuling: February 3, 2021; Filed by Clerk

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  • 02/03/2021
  • DocketMinute Order ( (Hearing on Motion to Compel Arbitration; Case Management Conf...)); Filed by Clerk

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  • 01/27/2021
  • DocketReply (Defendants? Reply To Plaintiff?s Opposition To Defendants? Joint Motion To Compel Arbitration And Stay Action); Filed by BMW OF NORTH AMERICA, LLC., a Delaware Limited Liability Company, (Defendant); NICK ALEXANDER IMPORTS, a California Limited Liability Company (Defendant)

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  • 01/20/2021
  • DocketOpposition (to Motion to Compel Arbitration); Filed by VICTOR SAAVEDRA (Plaintiff)

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  • 12/22/2020
  • DocketNotice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by Clerk

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  • 11/25/2020
  • DocketDeclaration (of Tyler Weight ISO MTC Arb); Filed by BMW OF NORTH AMERICA, LLC., a Delaware Limited Liability Company, (Defendant); NICK ALEXANDER IMPORTS, a California Limited Liability Company (Defendant)

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5 More Docket Entries
  • 11/12/2020
  • DocketCase Management Statement; Filed by BMW OF NORTH AMERICA, LLC., a Delaware Limited Liability Company, (Defendant); NICK ALEXANDER IMPORTS, a California Limited Liability Company (Defendant)

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  • 09/29/2020
  • DocketAnswer; Filed by NICK ALEXANDER IMPORTS, a California Limited Liability Company (Defendant)

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  • 09/18/2020
  • DocketAnswer; Filed by BMW OF NORTH AMERICA, LLC., a Delaware Limited Liability Company, (Defendant)

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  • 08/21/2020
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 08/20/2020
  • DocketProof of Personal Service; Filed by VICTOR SAAVEDRA (Plaintiff)

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  • 08/20/2020
  • DocketProof of Personal Service; Filed by VICTOR SAAVEDRA (Plaintiff)

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  • 08/12/2020
  • DocketCivil Case Cover Sheet; Filed by VICTOR SAAVEDRA (Plaintiff)

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  • 08/12/2020
  • DocketComplaint; Filed by VICTOR SAAVEDRA (Plaintiff)

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  • 08/12/2020
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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  • 08/12/2020
  • DocketSummons (on Complaint); Filed by VICTOR SAAVEDRA (Plaintiff)

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Tentative Rulings

Case Number: 20STCV30571    Hearing Date: February 03, 2021    Dept: 20

Tentative Ruling

Judge Kevin C. Brazile

Department 20


Hearing Date: Wednesday, February 3, 2021

Case Name: Victor Saavedra v. BMW of North America, LLC, et al.

Case No.: 20STCV30571

Motion: Compel Arbitration

Moving Party: Defendants BMWNA and Nick Alexander Imports

Responding Party: Plaintiff Saavedra

Notice: OK


Ruling: The Motion to Compel Arbitration is GRANTED.

All matters are now stayed pending arbitration.

Defendants to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect rather than in person in view of the COVID-19 pandemic.


BACKGROUND

On August 12, 2020, Plaintiff Victor Saavedra filed a Complaint against Defendants BMW of North America, LLC (“BMWNA”), Nick Alexander Imports, and Does 1-100, stating claims for violation of the Song-Beverly Act, breach of implied warranty of merchantability, negligent repair, and misrepresentation arising out of Plaintiff’s purchase of a used 2018 BMW 430i Gran Coupe Series in May 2018.

On November 25, 2020, Defendants BMWNA and Nick Alexander Imports filed a Motion to Compel Arbitration.

On January 20, 2021, Plaintiff filed an Opposition to the Motion to Compel Arbitration.

On January 27, 2021, Defendants filed a Reply to the Opposition.

DISCUSSION

Applicable Law

A trial court is required to grant a motion to compel arbitration “if it determines that an agreement to arbitrate the controversy exists.” (CCP § 1281.2) However, there is “no public policy in favor of forcing arbitration of issues the parties have not agreed to arbitrate.” (Gorlach v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1505) “Thus, in ruling on a motion to compel arbitration, the court must first determine whether the parties actually agreed to arbitrate the dispute.”  (Mendez v. Mid-Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541) “Where the record shows that there was an agreement to arbitrate, the trial court is required to order arbitration unless it determines that the petitioner waived its right to arbitration or that grounds existed for revocation of the agreement.” (Valsan Partners Limited Partnership v. Calcor Space Facility, Inc. (1994) 25 Cal.App.4th 809, 810)

 

Application to Facts

Initial Arguments

First, Plaintiff argues BMW does not intend to arbitrate despite moving to compel arbitration, citing one other case in which arbitration with BMW has not begun “[a]lmost a year” after arbitration was compelled. (Opposition, p. 3.) This is not a grounds to deny the motion. Plaintiff provided no evidence this Motion was brought in bad faith in order to stall and did not give the Court any reason to think BMW would stall in initiating arbitration here, particularly given Plaintiff’s silence as to the facts of that case. Indeed, Plaintiff notes the trial court compelled arbitration in that case, but claims in passing that it is “similar yet distinguishable.” It is not clear to the Court how distinguishable the case really is and whether a different result is warranted merely on the grounds of delay in an entirely unrelated action.

Second, Plaintiff argues the Court should “declare[] void” Defendant’s arbitration clause because it would be inefficient for arbitration of the damages claims to proceed in parallel with court proceedings on the injunctive relief claim. (Motion, p. 14-15.) The sole case cited by Plaintiff, Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, does not support Plaintiff, merely opining in a footnote as to how strongly “favored” arbitration agreements are under California law compared to the FAA. (Id. at 90, fn. 10.) The Court is not aware of, and Plaintiff has not cited, any authority “void[ing]” an arbitration clause on the grounds that arbitration would be inefficient. This flies in the face of the rule that an arbitration agreement “is to be rescinded on the same grounds as other contracts” only. (Id.) Courts are not authorized to void regular contracts on the grounds that enforcement would be inefficient.

Third, Plaintiff argues the agreement does not apply to the claims for negligent repair and misrepresentation because the agreement only covers claims “relate[d] to your credit application, purchase or condition of this vehicle.” (Opposition, p. 3.) Plaintiff claims the negligent repair and misrepresentation claims “do NOT relate to Plaintiff’s credit application, purchase or pre-sale condition of the vehicle.” (Opposition, p. 4.) The arbitration agreement does not say it covers claims related to the “pre-sale condition” of the vehicle—it covers claims relating to the condition of the vehicle. Repairs, and the failure thereof, clearly pertain to the condition of the repaired vehicle. Similarly, Plaintiff contends Defendants made misrepresentations regarding the condition of the vehicle. (Complaint, para. 60-64 (alleging defects existed “at the time [the vehicle] left BMWNA’s . . . control”) 72-73 (alleging Defendants misrepresented that the car was safe and serviced properly after repairs)) The Court is therefore unpersuaded that these claims fall outside the scope of the agreement.

Fourth, Plaintiff argues Defendant intentionally concealed the sales contracts (which contained the arbitration agreement) from Plaintiff. (Opposition, p. 4 (“Defendant never let Plaintiff read the Sale Contracts that allegedly contains the offending arbitration provisions, and was not permitted a fair opportunity to review the contents of the Agreement.”)) There is simply no evidence to support this argument. No affidavit was provided, and the concealment of the agreement is not even alleged in the Complaint (this would not be evidence in any event). Plaintiff’s bare unverified assertion that he was intentionally prevented from reading the contracts is not a basis to refuse to enforce the arbitration clause. There is simply no evidence the contracts were concealed, much less any evidence of deliberate fraud or lack of consent.  

Fifth, the Court notes BMWNA asserts standing to enforce the arbitration agreement as a third-party beneficiary and on an equitable estoppel theory. In turn, Plaintiff argued BMWNA is not a third-party beneficiary because it “has no stake in the negligent repair cause of action nor the misrepresentation cause of action.”[1] (Opposition, p. 3.) The negligent repair and misrepresentation causes of action are both stated against BMWNA. (Complaint, para. 55 (“NEGLIGENT REPAIR (Against Defendants BMWNA, NAI and DOES 1-100)”); para. 70 (“MISREPRESENTATION (Against BMWNA, NAI and DOES 1-100)”)) Plaintiff’s argument that BMWNA “has no stake” in those claims therefore appears erroneous.

Unconscionability and the CLRA Anti-Waiver Statute

Plaintiff contends the agreement is procedurally unconscionable because Defendants fraudulently concealed the sales contract from him (Opposition, p. 4) and substantively unconscionable because (1) waivers of the right to sue under Song-Beverly are unenforceable generally, (2) class action waivers are substantively unconscionable, and (2) compelling arbitration would “nullify Song-Beverly’s fee-shifting statute.” The substantive unconscionability arguments typically hinge on Civ. Code sec. 1751, the Consumer Legal Remedies Act (CLRA) anti-waiver provision providing that “[a]ny waiver by a consumer of the provisions of this title is contrary to public policy and shall be unenforceable and void.” This argument fails because the CLRA anti-waiver provision is largely preempted by the FAA in this context, as discussed below.[2]

First, Plaintiff contends claims under the Song-Beverly Act are not subject to arbitration at all, arguing that “[r]equiring a consumer to submit to arbitration, as a condition of a sales transaction, constitutes a waiver of the consumer's right to file an ‘action’ in a court of justice under Civil Code section 1780” which violates the anti-waiver provision. (Opposition, p. 5.) As discussed further below, Plaintiff does not cite any case endorsing this broad view of Section 1751, which is not discussed in the case law and is contradicted by the existence of any cases compelling arbitration of Song-Beverly Act or CLRA claims. (See, e.g., Felisilda v. FCA U.S. LLC (2020) 53 Cal.App.5th 486 (nonsignatory manufacturer compelled arbitration of Song-Beverly Act claims on equitable estoppel theory); Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066, 1072 (“an action for damages under the CLRA is fully arbitrable.”)) If Plaintiff were correct, these claims would not be subject to arbitration at all, because the agreement to arbitrate would on its face violate Section 1751. But CLRA and Song-Beverly Act claims are arbitrable, as shown by Felisilda and Broughton. Further, as discussed below, a rule that Song-Beverly Act claims are non-arbitrable would almost certainly be preempted by the FAA, given that the relevant CLRA anti-waiver provision has already been found to be preempted by the FAA in other contexts. (See Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 924.)

In support, Plaintiff relies on America Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1, Wang v. Massey Chevrolet (2002) 97 Cal.App.4th 856, and Ting v. AT & T (N.D. Cal. 2002) 182 F.Supp.2d 902 (which is not binding authority). All of these cases are distinguishable,[3] but in particular, it is difficult to explain Plaintiff’s extensive reliance on the non-binding district court decision in Ting (Opposition, p. 9-11) which was reversed by the Ninth Circuit in Ting v. AT&T (9th Cir. 2003) 319 F.3d 1126. Plaintiff represents that Ting was “reversed on other grounds” by the Ninth Circuit, but that does not appear accurate. The Ninth Circuit reversed in part on the grounds that the CLRA anti-waiver provision is preempted by the FAA, while Plaintiff cites the district court’s decision for the proposition that “legal remedies provisions of contracts . . . which, inter alia, banned class actions . . . violated public policy by seeking to impose an effective waiver of the statutory rights provided to consumers under the CLRA, and thus were void and unenforceable under CLRA's anti-waiver provision.” (Opposition, p. 6-7.)

The Ninth Circuit found the CLRA anti-waiver provision “is not a law of ‘general applicability’” and so the anti-waiver provision was preempted by the FAA with regards to the provisions at issue. (Id. at 1147-48 (“AT&T contends that the [FAA] preempts the application of the CLRA. . . . [O]n this issue of law, we agree with AT&T.”)) Thus, the Ninth Circuit held the CLRA anti-waiver provision did not render the agreement “void and unenforceable,” reversing the district court on that point. That holding is clearly relevant where Plaintiff contends the CLRA anti-waiver provision bars enforcement of the arbitration clause here.

Next,, Plaintiff contends the class action waiver renders the agreement unenforceable. The arbitration agreement here is subject to the FAA, providing that “[a]ny arbitration under this Arbitration Provision shall be governed by the Federal Arbitration Act [cite] and not by any state law concerning arbitration.” (Barmasse Decl., Ex. A.)  Our Supreme Court has already held that “CLRA's anti-waiver provision is preempted insofar as it bars class waivers in arbitration agreements covered by the FAA.” (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 924.) A “state rule can be preempted not only when it facially discriminates against arbitration but also when it disfavors arbitration as applied.” (Id.; AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 341.) A “state rule invalidating class waivers interferes with arbitration's fundamental attributes of speed and efficiency, and thus disfavors arbitration as a practical matter. (Id.) The unambiguous ruling in Sanchez defeats any reliance on Szetala, an appellate case decided eleven years before Sanchez which did not consider FAA preemption.

Finally, Plaintiff contends the arbitration clause “must be deemed void since it forces the consumer to waive the consumer's unwaivable right under Song-Beverly and the CLRA to recover attorney's fees and costs.” (Opposition, p. 8.) As discussed above, the CLRA anti-waiver provision is preempted by the FAA because the anti-waiver provision is not a law of “general applicability” such that it would be enforceable under Section 2 of the FAA.

Plaintiff cites Gutierrez, supra, 114 Cal.App.4th in support of his argument that the agreement improperly “nullifies” the Song-Beverly Act fee-shifting statute, but Gutierrez does not support Plaintiff. In fact, the Gutierrez court explained that “[w]hen parties agree to arbitrate claims under the CLRA, they impliedly agree to the rules necessary to permit a vindication of those statutory claims.” (Id. at 101.) Not only does this show that CLRA claims are arbitrable, including Song-Beverly claims, it indicates that deficiencies under the CLRA may be addressed in compelling arbitration. For example, “when parties agree to arbitrate statutory claims, it is reasonable to imply an agreement that the fees and costs provided for by the statute will be awarded.” (Id. at 99; Broughton, supra, 21 Cal.4th at 1086-87.) This addresses Plaintiff’s point regarding the Song-Beverly fee-shifting statute, which is impliedly transposed into arbitration. It is also permissible to “imply[] an additional agreement, in the absence of express language to the contrary, that unaffordable fees are not to be imposed at the time of the award. Implying this additional agreement ensures that consumers will not be deterred from pursuing their statutory claims by the fear that the arbitrator will allocate unaffordable fees to them.” (Id. at 100.) Thus, Plaintiff’s concerns about being “force[d] . . . to shell out tens of thousands of dollars” are also addressed by an implied agreement under Gutierrez.

In sum, the Court rejects each argument asserted. Plaintiff has adduced no evidence of procedural unconscionability, merely asserting in the Opposition that Defendants intentionally concealed the relevant contracts. Indeed, nowhere in the Opposition does Plaintiff even argue the agreement was adhesive. Plaintiff also did not show the agreement was procedurally unconscionable, relying almost exclusively on the CLRA anti-waiver provision which is largely preempted by the FAA in this context. “The prevailing view is that procedural and substantive unconscionability must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114.) Neither form of unconscionability was shown here.

Stay

Finally, Defendants seek to stay court proceedings pending arbitration. “If a court . . . has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.” (CCP sec. 1281.4.) The Court has ordered arbitration of the claims. Thus, the Court “shall . . . stay the action” while arbitration proceeds.

 

CONCLUSION

The Motion to Compel Arbitration is GRANTED.

All matters are now stayed pending binding arbitration.

Defendants to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LA Court Connect rather than in person in view of the COVID-19 pandemic.


[1] Plaintiff also claims he “would reassert those causes of action” if BMWNA claims it “would benefit from protection” against those claims; it is unclear to the Court what Plaintiff means by this.

[2] Plaintiff also argues that his claim for injunctive relief “against the ongoing deceptive practices of Defendants” is not subject to arbitration. (Opposition, p. 2; Warren-Guthrie v. Health Net (2000) 84 Cal.App.4th 804, 817.) This argument fails because there is no claim for injunctive relief, so Plaintiff’s arguments are speculative, pertaining to a claim not raised. (See Complaint (no prayer for injunctive relief or relief re: deception))

[3] In Wang, supra, the Court of Appeal explained that “[t]o permit the bar or defense of the parol evidence rule under the instant facts is to deem the Legislature to have engaged in an absurd task: the Legislature would have made a practice unlawful but would have precluded a plaintiff from ever establishing it by application of the parol evidence rule.” (Id. at 870.) “Further, permitting a parol evidence bar or defense under the instant circumstances would be tantamount to construing the written contract as constituting essentially a waiver of the protections of the act, which waiver is contrary to public policy” under Section 1751. (Id.)

In America Online, supra, the Court of Appeal found unenforceable a forum selection clause which designated Virginia, noting the “unavailability of class actions and the apparent limitation in injunctive relief,” the unavailability of “punitive damages [and] enhanced remedies for disabled and senior citizens” under Virginia law, and “[m]ore nuanced differences [such as] the reduced recovery under the VCPA for ‘unintentional’ acts, a shorter period of limitations, and Virginia's use of a Lodestar formula alone to calculate attorney fees recovery.” (America Online, supra, 90 Cal.App.4th at 18.) Noting the “cumulative importance of even these less significant differences,” the court found “[e]nforcement of a forum selection clause, which would impair these aggregate rights, would itself violate important California public policy.” (Id.)

Both Wang and America Online are distinguishable in that neither involved an arbitration agreement. There were thus no issues of FAA preemption, whereas here the FAA preempts Plaintiff’s arguments under the CLRA anti-waiver provision. Indeed, the America Online court noted in passing that “remedies under the CRLA are arbitrable so long as the substantive rights of the plaintiffs are not impaired.” (Id. at 20.) Wang in particular is irrelevant where the parol evidence rule is not even at issue here; America Online at least opined on class action waivers such as the one present here, albeit in a different context.

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