Konig v. U-Haul Company of California, B190547 (Cal. App. 1/18/2008)

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RON KONIG, Plaintiff and Appellant, v. U-HAUL COMPANY OF CALIFORNIA, Defendant and Respondent.

B190547

Court of Appeals of California, Second Appellate District, Division Five

January 18, 2008

Appeal from a judgment of the Superior Court of Los Angeles County, No. BC335055, Peter D. Lichtman, Judge. Affirmed in part; reversed in part with directions.

Law Office of Joseph Antonelli, Joseph Antonelli and Janelle Carney, for Plaintiff and Appellant.

Fulbright & Jaworski, James R. Evans, Jr., and Joseph H. Park; and Mariscal, Weeks, McIntyre & Friedlander, and Gary L. Birnbaum for Defendant and Respondent.

TURNER, P. J.

Plaintiff, Ron Konig, appeals from orders compelling arbitration and enforcing a class action waiver. We previously issued issue an opinion affirming both orders. (Konig v. U-Haul Co. of California (2006) 145 Cal.App.4th 1243, review granted Feb. 28, 2007, S149883.) Our Supreme court has remanded the cause to us with directions to reconsider our opinion in light of Gentry v. Superior Court (2007) 42 Cal.4th 443. The parties did not file any papers within the time frames specified in California Rules of Court, rule 8.200(b). The enforceability of the class action waiver is controlled by the analysis in Gentry v. Superior Court, supra, 42 Cal.4th at pages 453-466. Thus, the trial court is to revaluate the validity of the class action waiver.

The order compelling arbitration is affirmed. The order enforcing the class action waiver is reversed. Upon remittitur issuance, the trial court is to reconsider the order enforcing the class action waiver in light of Gentry v. Superior Court, supra, 42 Cal.4th at pages 453-466.

I concur:

KRIEGLER, J.

MOSK, J., Dissenting

I dissent.

I would reverse the trial court's orders in their entirety.

On appeal here, plaintiff argued that the motions to compel arbitration, to stay action pending arbitration and to dismiss class action claims should have been denied. Plaintiff argued that the arbitration clause in its entirety should not be enforced because of procedural and substantive unconscionability. One of the elements bearing on unconscionability was the class action waiver, which is unenforceable.¹

This court never dealt with the order to compel arbitration. Thus, at this stage, we cannot affirm that order. Compelling plaintiff to arbitrate effectively eliminates him as a class representative and thus the class action in this case. Accordingly, remanding this case would accomplish nothing and would be inconsistent with the Supreme Court's order. I would reverse based on my dissenting opinion in ...