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Courts of Appeal inconsistent when applying Concepcion

Trial and appellate courts throughout California continue to struggle with the scope and breadth of the U.S. Supreme Court's decision in AT&T Mobility v. Concepcion, 2011 DJDAR 5846 (2011).

Recently, in Caron v. Mercedes-Benz, 2012 DJDAR 10502 (Cal. App. 4th Dist. July 30, 2012), Division 3 of the 4th District Court of Appeal held that the Federal Arbitration Act preempts the California Consumer Legal Remedy Act's prohibition against class action waivers (California Civil Code Section 1751) in arbitration agreements. The Court of Appeal relied on the Concepcion decision in reversing the superior court, which found itself bound by an earlier Court of Appeal decision reaching the opposite conclusion in Fisher v. DCH Temecula Imports LLC, 187 Cal. App. 4th 601 (Cal. App 4th Dist. Aug. 13, 2010). The Caron opinion thus arguable creates a split in authority with Fisher that may warrant later resolution by the state Supreme Court.

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