GRIMES, J., Dissenting. I respectfully disagree with my colleagues’ conclusion that the parties’ dispute does not fall within the arbitration provisions of their contracts and that it is unnecessary to decide the remaining issues in this appeal. For the reasons below, I would reach the other bases of the trial court’s ruling, affirming in part and conditionally reversing in part and remanding for the trial court to consider whether the arbitration provisions are unconscionable.
Plaintiffs are owner-operator truckdrivers who make deliveries to defendants’ customers. Plaintiffs sued defendants, claiming their contracts with defendants, the “Broker/Carrier Agreement” or the “Transportation Agreement,” incorrectly characterize plaintiffs as independent contractors. The agreements include extensive provisions regarding plaintiffs’ compensation. Nevertheless, plaintiffs claim they are employees and were denied wage and hour benefits under the Labor Code. The parties’ contracts contain dispute resolution provisions requiring the parties to submit their disputes to arbitration.
Defendants moved to compel arbitration, and the trial court granted the motion. The court declined to decide whether the arbitration provisions were unconscionable, finding that AT&T Mobility LLC v. Concepcion (2011) 563 U.S._[179 L.Ed.2d 742, 131 S.Ct. 1740] (Concepcion) abrogated the state law rule that an arbitration agreement should not be enforced if it is [25]unconscionable. The trial court reasoned that the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.) applied, and that plaintiffs were not exempt from arbitration under section 1 of the FAA, which exempts contracts of employment of transportation workers. (9 U.S.C. § 1.) The trial court concluded the exemption does not apply because plaintiffs are independent contractors, and not employees. The trial court also found that the parties did not agree to classwide arbitration.
I would affirm the trial court’s finding that the FAA applies to the parties’ dispute. Plaintiffs’ claims challenge whether the agreements control the terms of their compensation, or whether the Labor Code applies. Such a dispute falls squarely within the language of the arbitration clause, which requires arbitration of all disputes “with regard to [the] application or interpretation” of the parties’ agreements. Also, substantial evidence supports the trial court’s finding that plaintiffs are independent contractors. However, this finding is preliminary for the purpose of deciding whether plaintiffs fall within the exemption under section 1 of the FAA, and has no preclusive effect in the arbitration.
I would also affirm the trial court’s finding that the parties did not agree to classwide arbitration. Their agreements are silent on class treatment of disputes, and plaintiffs do not claim any implied agreement to resolve class claims in arbitration.
However, I would conditionally reverse and remand because the trial court declined to decide plaintiffs’ claims that the agreements are unconscionable. Although recent cases have made clear that classwide arbitration is not part of the unconscionability analysis, the other claims of unconscionability are not preempted by the FAA and must be decided, such as the limitation of remedies and inequality in bargaining power. Therefore, I would conditionally reverse so tire trial court may decide whether the agreements are unconscionable. If the trial court were to conclude that the agreements are not unconscionable, then the order compelling arbitration would be reinstated. If unconscionable, and the unconscionable terms may not be stricken, then the order compelling arbitration would be vacated.
DISCUSSION
The parties do not dispute that their agreements call for application of the FAA. It is undisputed that the agreements between the parties affect interstate commerce. Plaintiffs resist arbitration on several grounds, contending the controversy over misclassification is outside the scope of the arbitration agreements; plaintiffs, as transportation workers, are exempt from the FAA; [26]and the arbitration agreements are unconscionable or otherwise unenforceable. Plaintiffs also contend that the trial court erred in ordering individual rather than classwide arbitration.
1. The Claims Are Arbitrable.
When an arbitration agreement is subject to the FAA, “questions concerning the construction and scope of the arbitration clause are determined by federal law.” (Baker v. Aubry (1989) 216 Cal.App.3d 1259, 1263 [265 Cal.Rptr. 381].) Arbitration is strongly favored, and any doubts concerning the scope of arbitrable issues will be resolved in favor of arbitration. (United Transportation Union v. Southern Cal. Rapid Transit Dist. (1992) 7 Cal.App.4th 804, 808 [9 Cal.Rptr.2d 702].) When deciding whether the parties agreed to arbitrate a dispute, courts generally apply ordinary state law principles of contract interpretation. (First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 944 [131 L.Ed.2d 985, 115 S.Ct. 1920].) Notwithstanding the policy favoring arbitration, because “ ‘arbitration is a matter of contract!,] ... a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.’ ” (AT&T Technologies v. Communications Workers (1986) 475 U.S. 643, 648 [89 L.Ed.2d 648, 106 S.Ct. 1415] (AT&T Tech.); see Lawrence v. Walzer & Gabrielson (1989) 207 Cal.App.3d 1501, 1505 [256 Cal.Rptr. 6].) The party opposing arbitration has the burden to show that the agreement does not apply to the dispute. (Buckhorn v. St. Jude Heritage Medical Group (2004) 121 Cal.App.4th 1401, 1406 [18 Cal.Rptr.3d 215].)
The relevant portions of the parties’ agreements provide:
“11. DISPUTE RESOLUTION
“Having entered into this Agreement in good faith, the Parties agree that the terms and procedures set forth herein shall be controlling if a dispute arises with regard to its application or interpretation.”
“11.2 Arbitration. If after the expiration of the thirty (30) day period, a dispute is not resolved voluntarily, the Parties shall submit the matter for final and binding arbitration .... The award of the arbitrator may be enforced in any court of competent jurisdiction.”
“11.4 Discretion of Arbitrator.
“(a) The arbitrator shall base the award on the terms of this Agreement, federal transportation law, including existing judicial and administrative precedence, and by the arbitration law of the Federal Arbitration Act, title 9 [27]U.S. Code. The arbitrator shall apply each in the order or precedence with the former having primary control.”
“13.1 Governing Law. This Agreement shall be interpreted in accordance with the laws of the State of California, disregarding any choice-of-law principle under which that State would look to the laws of another jurisdiction. . . .”
The majority opinion concludes that the dispute between the parties was outside the scope of the arbitration clause, finding the “lawsuit does not concern the application or interpretation of the Agreements, but instead seeks to enforce rights arising under the Labor Code benefitting employees but not independent contractors.” (Maj. opn., ante, at p. 21.) I believe the majority interpreted the agreements too narrowly and, in so doing, ignored well-settled law favoring arbitration and requiring that any doubt about the applicability of an arbitration clause must be “resolved in favor of arbitration.” (Steelworkers v. Warrior & Gulf Co. (1960) 363 U.S. 574, 589 [4 L.Ed.2d 1409, 80 S.Ct. 1347].)
The arbitration clause applies to any “dispute [that] arises with regard to . . . application or interpretation” of the agreements. The agreements classify the “relationship of Carrier to Broker” as “that of an independent contractor.” They provide that the “Carrier shall not be subject to the direction, control or supervision of Brokerf.] . . . Under no circumstances shall employees or agents of Carrier be deemed employees ... of Broker.” The agreements have extensive provisions for the calculation of plaintiffs’ compensation as carriers. The complaint alleges that plaintiffs were misclassified as independent contractors and were entitled to protections conferred upon employees by the Labor Code, notwithstanding the representations made in the agreements. The resolution of plaintiffs’ claims requires an interpretation of the agreements and evaluation of the evidence to decide if the agreements apply to set the terms of plaintiffs’ compensation, or if the agreements do not accurately describe the parties’ relationship and the Labor Code governs plaintiffs’ rightful compensation. In short, this dispute concerns the application and interpretation of the agreements and therefore falls within the arbitration clause.
Broad arbitration clauses such as this one are consistently interpreted as applying to extracontractual disputes between the contracting parties. (Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 681, fn. 2, 686 [99 Cal.Rptr.2d 809] [where parties agreed to arbitrate “ ‘[a]ny problem or dispute arising under this Agreement and/or concerning the terms of this Agreement’ ” (italics omitted), the arbitration agreement was broad enough to encompass tort claims]; Berman v. Dean Witter & Co., Inc. [28](1975) 44 Cal.App.3d 999, 1003 [119 Cal.Rptr. 130] [“The phrase ‘any controversy . . . arising out of or relating to this contract . . .’is certainly broad enough to embrace tort as well as contractual liabilities so long as they have their roots in the relationship between the parties which was created by the contract.”].) The claims raised in the complaint challenge the agreements’ characterization of the parties’ relationship. Resolution of plaintiffs’ claims requires a determination whether the agreements apply to set the terms of plaintiffs’ compensation, or whether the Labor Code controls. Therefore, this dispute falls within the arbitration clause, which by its terms applies to any dispute with regard to the application of the agreements.
In my view, the majority opinion amounts to a judicial rule barring arbitration of wage and hour claims under the Labor Code in any contract that purports to have been made with an independent contractor, even a contract affecting interstate commerce. The high court has held that neither statutory nor judicial rules may interfere with enforcement of the FAA, so in my view, we are without authority to vacate the order compelling arbitration on this basis. (Concepcion, supra, 563 U.S. at p._[131 S.Ct. at p. 1747] [“When state law prohibits outright the arbitration of a particular type of claim, the analysis is straightforward: The conflicting rule is displaced by the FAA.”]; Perry v. Thomas (1987) 482 U.S. 483, 491 [96 L.Ed.2d 426, 107 S.Ct. 2520] [FAA preempts state law requirement that litigants be provided a judicial forum for wage disputes].)
Although the agreements require the arbitrator to “base the award on the terms of this Agreement, federal transportation law, including existing judicial and administrative precedence, and by the arbitration law of the Federal Arbitration Act, title 9 U.S. Code,” this limitation should not be read to exclude this dispute from arbitration. Contract terms must be interpreted as a whole and in context, rather than in isolation. (Thompson v. Toll Dublin, LLC (2008) 165 Cal.App.4th 1360, 1370 [81 Cal.Rptr.3d 736]; Civ. Code, § 1641.) To construe this clause as a limitation on arbitrability cannot be reconciled with the expansive language used earlier in the agreement. (AT&T Tech., supra, 475 U.S. at p. 649 [clauses limiting the scope of arbitration are construed as narrowly as possible]; Molecular Analytical Systems v. Ciphergen Biosystems, Inc. (2010) 186 Cal.App.4th 696, 705 [111 Cal.Rptr.3d 876].) The parties agreed that California law governs their agreements, as the contract has a choice-of-law provision designating California law as governing the contract’s interpretation.
The majority relies on Hoover v. American Income Life Ins. Co. (2012) 206 Cal.App.4th 1193 [142 Cal.Rptr.3d 312] (Hoover). In that case, the Court of Appeal affirmed denial of the defendant employer’s petition to compel arbitration, finding that the employer had waived its right to arbitrate the [29]plaintiff employee’s claims for compensation under the Labor Code. (Id. at pp. 1205-1206.) In dicta, the court also found the plaintiff’s statutory labor claims were not arbitrable. (Id. at p. 1206 [“Even if [the defendant] had not waived its right to assert arbitration, we would decide [the defendant] could not compel arbitration in the present case.”].) I do not find the dicta in Hoover to be instructive here, because Hoover found the FAA did not apply to the parties’ individual contracts since they did not involve interstate commerce. (206 Cal.App.4th at p. 1207.) And the arbitration agreement in the collective bargaining agreement did not apply to the plaintiff’s individual statutory claims under established authorities construing the Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq.). The Hoover court expressly acknowledged the FAA preempts the rule that statutory claims are not subject to private arbitration agreements when the arbitration agreement is in a contract involving interstate commerce. (206 Cal.App.4th at p. 1207.)
Indeed, the high court has established that statutory claims are arbitrable when the parties’ contract involves interstate commerce and is therefore governed by the FAA. (Mitsubishi Motors v. Soler Chrysler-Plymouth (1985) 473 U.S. 614, 626 [87 L.Ed.2d 444, 105 S.Ct. 3346] [“There is no reason to depart from [the policy favoring arbitration] where a party bound by an arbitration agreement raises claims founded on statutory rights.”].) Therefore, given the preference for arbitration and the broad language of the agreements, plaintiffs’ claims that the Labor Code governs their compensation, and not the compensation terms of their agreements, fall within the ambit of the arbitration clause.
2. Substantial Evidence Supports the Trial Court’s Preliminary Finding That Plaintiffs Are Independent Contractors.
Plaintiffs urge that even if their claims fall within the arbitration clause, they are nonetheless exempt from arbitration because the FAA does not apply to “contracts of employment of . . . workers engaged in foreign or interstate commerce.” (9 U.S.C. § 1.) This exemption applies to “contracts of employment of transportation workers” (Circuit City Stores, Inc. v. Adams (2001) 532 U.S. 105, 119 [149 L.Ed.2d 234, 121 S.Ct. 1302]), but does not apply to contracts establishing an independent contractor (rather than employment) relationship. (See, e.g., Owner-Operator Independent Drivers v. Swift (D.Ariz. 2003) 288 F.Supp.2d 1033, 1035-1036.)
Generally, it is for the court to determine the question of arbitrability, rather than the arbitrator. (AT&T Tech., supra, 475 U.S. at p. 649.) A court ruling on arbitrability usually does not reach the merits of the underlying dispute between the parties. (Ibid.) Here, because the exemption under section 1 of the FAA turns on whether plaintiffs are employees or independent [30]contractors, arbitrability and the underlying dispute are inextricably intertwined. The only court to consider whether a court must decide if a dispute is exempt from arbitration under section 1 of the FAA, even if that determination may incidentally reach the merits of the dispute, concluded that “the best reading of the law requires the . . . court to assess whether a Section 1 exemption applies before ordering arbitration.” (In re Van Dusen (9th Cir. 2011) 654 F.3d 838, 846 (Van Dusen).)
In Van Dusen, the Ninth Circuit Court of Appeals denied a petition for writ of mandamus to compel the district court to decide the petitioners’ claim of exemption. The petitioners, like plaintiffs in our case, were truckdrivers who signed independent contractor agreements but who claimed entitlement to wage and hour benefits as employees. The district court compelled arbitration without deciding whether the plaintiffs were employees, finding the arbitrator should make that determination. The Ninth Circuit found the petitioners made “a strong argument that the District Court erred,” but declined to issue the writ. (Van Dusen, supra, 654 F.3d at p. 840.) Summarizing its views of the petitioners’ arguments, the court found “the best reading of the law requires the district court to assess whether a Section 1 exemption applies before ordering arbitration. We acknowledge, however, that the law’s repeated admonishments that district courts refrain from addressing the merits of an underlying dispute can be read to favor the District Court’s decision. This factor, along with the lack of controlling precedent, render the question relatively close.” (Id. at p. 846.) The Ninth Circuit declined to issue the writ because it could not find the district court committed “clear error.” (Ibid.) That was because “the question in this case—whether the district court, as opposed to an arbitrator, must determine the applicability of an FAA exemption—is one of first impression in the federal courts of appeal.” (Id. at p. 845.)
Following the analysis of the Ninth Circuit in Van Dusen, I would find the trial court correctly reached the question of whether plaintiffs are employees or independent contractors to determine whether the FAA exemption applies. (See Rite Aid of Pennsylvania v. Food Workers Union, Local 1776 (3d Cir. 2010) 595 F.3d 128, 135-137 [discussing federal decisions interpreting arbitration clauses in collective bargaining agreements that “have made clear that where the merits and arbitrability questions are inextricably intertwined, a court’s arbitrability decision may, of necessity, touch incidentally on the merits”].) Because in this case plaintiffs disputed that they are independent contractors, our review of the trial court’s determination is under the substantial evidence standard of review. (Suh v. Superior Court (2010) 181 Cal.App.4th 1504, 1511 [105 Cal.Rptr.3d 585].)
The question of whether plaintiffs are employees or independent contractors turns on the degree of control exercised by defendants. Although the [31]“control test” is the most important consideration, there are other indicia of the nature of the relationship, such as the right to discharge at will, and other factors, such as “ ‘(a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee. ’ ” (Arzate v. Bridge Terminal Transport, Inc. (2011) 192 Cal.App.4th 419, 425-426 [121 Cal.Rptr.3d 400] (Arzate).)
It was plaintiffs’ burden to demonstrate they are employees and the FA A does not apply. (Kam-Ko Bio-Pharm Trading Co. v. Mayne Pharma Inc. (9th Cir. 2009) 560 F.3d 935, 940.) Plaintiffs’ declarations provided somewhat conclusory facts. For example, plaintiff Dave Van Huynh declared that defendants “controlled my compensation and delivery schedules. I did not have any control over which customers I could work with or what deliveries I could take. All delivery assignments were ... on a ‘take it or leave it’ basis. If I refused a specific assignment, I could be punished by [defendants] in the form of a fine.” He also averred that he had to contact defendants’ dispatchers to get his assignments, and that the dispatchers designated the schedule and route of the delivery. He could not negotiate his compensation rate, had to follow defendants’ policies and procedures, and had to place defendants’ logo on his truck. While his agreement with defendants was in force, he was not allowed to contract with other companies. He was not allowed to hire drivers without defendants’ permission. Other employees submitted nearly identical declarations.
Many of the averments are contradicted by the express terms of the agreements, and plaintiffs’ own evidence supports a finding of an independent contractor relationship. For example, the agreements are not exclusive and permit plaintiffs to provide transportation services for other companies. The agreements also state that plaintiffs were responsible for providing labor at their own discretion and expense. The agreements establish flat compensation rates depending upon the delivery destination city. Title on the trucks was held in plaintiffs’ names, and they were compensated in a piece-rate manner, for each delivery made, with no tax deductions withheld from their checks.
Defendants offered evidence that plaintiffs maintained their own motor carrier permits and insurance, and drove their own trucks. Defendants did not [32]“hire drivers or maintain vehicles to transport property” and are not “licensed motor carrier[s].” Plaintiffs, and not defendants, hired and trained drivers. Plaintiffs were required to bear all expenses associated with their equipment. Plaintiffs were not paid wages, and received Internal Revenue Service 1099 forms. Defendants did not direct which route to take to make deliveries, and plaintiffs decided for themselves how to deliver the loads they accepted from defendants. Plaintiffs were also free to contract with other companies.
There was substantial evidence that the degree of control exercised by defendants is only that of a broker seeking a carrier to meet its customers’ shipment needs. Plaintiffs owned their trucks, were paid by the delivery, and were required to maintain their own permits and insurance. These are indicia of an independent contractor, rather than an employment relationship. (Arzate, supra, 192 Cal.App.4th at pp. 425-426.)
Nevertheless, the trial court’s finding that plaintiffs are independent contractors should not preclude the arbitrator from concluding that plaintiffs are employees. Attaching a preclusive effect to the trial court’s finding would be contrary to the policy favoring arbitration, as it would substitute the judge for the arbitrator to decide the merits of the dispute. Additionally, the requirements for collateral estoppel are not satisfied, such as a final decision on the merits. (Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511 [94 Cal.Rptr.3d 1, 207 P.3d 506].) Given the summary nature of a motion to compel arbitration, and the limited facts available to the court and the parties, the trial court’s preliminary findings regarding the relationship between the parties are not “final and on the merits.”
3. Unconscionability Must Be Decided.
Plaintiffs asserted an unconscionability defense in opposition to defendants’ motions to compel arbitration. The trial court, relying on the high court’s opinion in Concepcion, concluded that the FAA preempts state law unconscionability defenses to arbitration, as set forth in Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83 [99 Cal.Rptr.2d 745, 6 P.3d 669] (Armendariz), and therefore declined to rule on plaintiffs’ claims of unconscionability. In my view, Concepcion answered only the narrow question of whether section 2 of the FAA, which permits arbitration agreements to be declared unenforceable “upon such grounds as exist at law or in equity for the revocation of any contract” (9 U.S.C. § 2), “preempts California’s rule classifying most collective-arbitration waivers in consumer contracts as unconscionable.” (Concepcion, supra, 563 U.S. at p._[131 S.Ct. at p. 1746].)
After Concepcion, the high court issued its opinion in Marmet Health Care Center v. Brown (2012) 565 U.S. _ [182 L.Ed.2d 42, 132 S.Ct. 1201], [33]reversing West Virginia’s judicial rule that predispute arbitration agreements in a personal injury or wrongful death action against a nursing home are unenforceable because they violate public policy. However, the Marmet court remanded for further proceedings to reconsider the alternative basis for the opinion of the West Virginia Supreme Court of Appeals, that enforcement of the arbitration agreements would be unconscionable. (Marmet, supra, 565 U.S. at p._[132 S.Ct. at p. 1204] [“On remand, the West Virginia court must consider whether, absent that general public policy [against arbitration of negligence actions against nursing homes], the arbitration clauses ... are unenforceable under state common law principles that are not specific to arbitration and pre-empted by the FAA.”].) The Marmet opinion makes clear that common law principles of unconscionability apply to arbitration agreements so long as there is no categorical rule that is displaced by the FAA.
Meanwhile, there have been inconsistent appellate opinions in California about the scope of Concepcion as it may affect the unconscionability defense to enforcement of arbitration (except as to class action waivers),1 but the California Supreme Court has not yet decided this question. Recently, however, the Supreme Court found the FAA applied in a construction defect dispute and then analyzed whether the arbitration clause was unconscionable under Armendariz—without any citation to Concepcion. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 246-250 [145 Cal.Rptr.3d 514, 282 P.3d 1217].)
Therefore, I hesitate to conclude that Concepcion abrogated Armendariz, except to the extent that a categorical prohibition against classwide arbitration will no longer render an agreement to arbitrate unconscionable. As such, the trial court was required to entertain plaintiffs’ unconscionability defense to arbitration, to the extent those challenges attacked the agreement to arbitrate rather than the contract as a whole. (Buckeye Check Cashing, Inc. v. Cardegna (2006) 546 U.S. 440, 445-446 [163 L.Ed.2d 1038, 126 S.Ct. 1204].)
An appellate court cannot, in the first instance, determine whether an agreement is unconscionable. (Caron v. Mercedes-Benz Financial Services [34]USA LLC, supra, 208 Cal.App.4th at p. 26.) Here, plaintiffs raised numerous arguments concerning the enforceability of the agreements, such as the limitation of remedies and that the contracts were adhesive. Therefore, I would conditionally reverse and remand so that the trial court can consider and decide these arguments. (Id. at p. 27.) If the trial court were to conclude that the arbitration provision is not unconscionable, then I would order the trial court to reinstate the order compelling arbitration. If unconscionable, and the unconscionable terms may not be stricken, then I would order the trial court to vacate the order compelling arbitration.
4. The Parties Did Not Agree to Classwide Arbitration.
Lastly, I would affirm the trial court’s order for individual arbitration, because the agreements are silent as to class arbitration of disputes, and plaintiffs have never claimed there was an implicit agreement between the parties to submit any disputes to classwide arbitration. Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. (2010) 559 U.S. 662 [176 L.Ed.2d 605, 130 S.Ct. 1758] held that, under the FAA, a party may not be compelled to submit to class arbitration unless the arbitration contract provides a basis for concluding that the parties agreed to do so. (Stolt-Nielsen S. A., at p._[130 S.Ct. at p. 1775]; see Reyes v. Liberman Broadcasting, Inc. (2012) 208 Cal.App.4th 1537, 1543-1545 [146 Cal.Rptr.3d 616].) Here, the agreements are completely silent about class arbitration of claims, and therefore, there is no basis for concluding that defendants consented to class arbitration. I am not persuaded by plaintiffs’ argument that the National Labor Relations Act’s guarantee of the right to form labor organizations and unions (29 U.S.C. § 157) somehow guarantees a right to class arbitration of employment disputes.
A petition for a rehearing was denied November 8, 2012, and petitioners’ petition for review by the Supreme Court was denied January 16, 2013, S206886.
See, e.g., Caron v. Mercedes-Benz Financial Services USA LLC (2012) 208 Cal.App.4th 7 [145 Cal.Rptr.3d 296] (Concepcion invalidates class action waiver in Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.) that would interfere with arbitration); Nelsen v. Legacy Partners Residential, Inc. (2012) 207 Cal.App.4th 1115 [144 Cal.Rptr.3d 198] (applying Armendariz factors but finding arbitration agreement was not unconscionable; declining to decide if Concepcion abrogates Gentry v. Superior Court (2007) 42 Cal.4th 443 [64 Cal.Rptr.3d 773, 165 P.3d 556] (Gentry)); Truly Nolen of America v. Superior Court (2012) 208 Cal.App.4th 487, 493 [145 Cal.Rptr.3d 432] (“Although Concepcion’s reasoning strongly suggests that Gentry’s holding is preempted by federal law, the United States Supreme Court did not directly rule on the class arbitration issue in the context of unwaivable statutory rights and the California Supreme Court has not yet revisited Gentry. Thus, we continue to be bound by Gentry under California’s stare decisis principles.”).