Lee v. AT & T Wireless Services

Filed 5/26/06  Lee v. AT & T Wireless Services CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

            APPEALS from orders of the Superior Court of Los Angeles County, Emilie H. Elias, Judge.  Affirmed.

            Jones, Bell, Abbott, Fleming & Fitzgerald, Trenton J. Hill, William M. Turner and Catherine L. Dellecker for Plaintiff and Appellant.

            Kirkpatrick & Lockhart Nicholson Graham, Michael L. Mallow, Nicole M. Lee, Eric J. Kohm; Mayer, Brown, Rowe & Maw and Donald M. Falk for Defendants and Appellants.

I.            INTRODUCTION

            Plaintiff, Jerry Lee, appeals from an order denying a preliminary injunction request.  Plaintiff sought to prevent defendant, New Cingular Wireless Services, Inc. (Cingular), formerly known as AT& T Wireless Services, Inc. (AT& T), from enforcing a class action ban in the arbitration provision of a service agreement.  (AT& T Wireless Services, Inc. merged with Cingular Wireless LLC in October 2004.  AT& T Wireless Services, Inc. is now known as New Cingular Wireless Services, Inc.)  Defendant appeals from an order denying its motion to compel arbitration.  The trial court concluded the class action ban was unconscionable and unenforceable under Discover Bank v. Superior Court(2005) 36 Cal.4th 148, 162.  We hold this case is governed by the United States Arbitration Act (9 U.S.C. § 1 et seq.); under the United States Arbitration Act and Buckeye Check Cashing, Inc. v. Cardegna (2006) 546 U.S. __, __ [126 S.Ct. 1204, 1209], a challenge specifically to an arbitration clause is decided by the court rather than the arbitrator; under Discover Bank v. Superior Court, supra, 36 Cal.4th at page 162,the class action waiver in the arbitration agreement is unconscionable and unenforceable; the Discover Bank rule is applicable to contracts generally and is not preempted by the United States Arbitration Act; the trial court did not abuse its discretion in denying plaintiff's preliminary injunction motion; and the trial court properly denied defendants' motion to compel arbitration.  Accordingly, we affirm the orders.

II.            BACKGROUND

            In his first amended complaint, plaintiff, an AT& T customer, alleged:  defendant had violated California unfair business practice and consumer protection laws (Bus. & Prof. Code, §§ 17200 et seq., 17500 et seq.; Civ. Code, §§ 1750-1784); it had done so by intentionally misrepresenting to consumers amounts they would pay for cellular telephones, and falsely representing there would be no charge to upgrade to telephones purchased from defendant, when in fact a $15 charge was incurred.  Plaintiff sought to represent a class of consumers who had been charged the $15 upgrade fee.  Plaintiff requested a preliminary injunction as follows:  â€