Selby v. Cingular Wireless
Filed 8/25/06 Selby v. Cingular Wireless CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
| AMANDA SELBY, Plaintiff and Respondent, v. CINGULAR WIRELESS LLC, Defendant and Appellant. | G036158 (Super. Ct. No. 04CC06353) O P I N I O N |
Appeal from an order of the Superior Court of Orange County, Heidi Garmon, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Mayer, Brown, Rowe & Maw, Donald M. Falk and Frederick S. Levin; Elizabeth G. Oyer, for Defendant and Appellant.
Franklin & Franklin and J. David Franklin; Law Offices of Anthony A. Ferrigno and Anthony A. Ferrigno, for Plaintiff and Respondent.
Cingular Wireless LLC (Cingular) appeals from an order that denied its motion to compel arbitration in this class action by Amanda Selby. Selby alleges Cingular's customer service agreement, including an arbitration clause, is unconscionable and seeks injunctive and declaratory relief under the California Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.) (CLRA).
Cingular acknowledges Selby's claims are not subject to arbitration under California law (Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066), but it contends that the Federal Arbitration Act preempts law. (U.S.C. § 1 et seq.) Cingular states it has filed petitions for certiorari in the United States Supreme Court in several similar California cases in an attempt to overturn Broughton, and it asks us to await decision of those cases before hearing this appeal.
We see no reason to defer consideration of the appeal. At this writing, all of Cingular's petitions for certiorari have been denied.[1] Since the instant claims for injunctive and declaratory relief under the CLRA are not subject to arbitration, the motion to compel arbitration was properly denied.
Selby urges us to go beyond the decision below and consider her several claims that Cingular's customer service agreement is unconscionable. But we are an appellate court: We cannot resolve disputes in the first instance. So we leave resolution of those claims to the trial court.
The order appealed from is affirmed. Respondent is entitled to costs on appeal.
BEDSWORTH, ACTING P. J.
WE CONCUR:
O'LEARY, J.
IKOLA, J.
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[1] Parrish v. Cingular Wireless, LLC ( Oct. 3, 2005, A105518), cert. denied sub. nom. Cingular Wireless, LLC v. Mendoza (2006) __ U.S. __, 126 S.Ct. 2353; Meoli v. AT&T Wireless Services, Inc. (Sept. 30, 2005, A106061, 106340, 106341 ), cert. denied (2006) __U.S.__, 126 S.Ct. 2890; Wing v. Cingular Wireless, LLC (Oct. 3, 2005, A105906 ), cert. denied (2006) __U.S.__, 126 S.Ct. 2890; Bucy v. AT&T Wireless Services, Inc. (Sept. 30, 2005, A105910), cert. denied sub. nom. New Cingular Wireless Services, Inc. v. Bucy (2006) __ U.S.__, 126 S.Ct. 2889.
