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`Filed 4/6/17
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`IN THE SUPREME COURT OF CALIFORNIA
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`S224086
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`Ct.App. 4/3 G049838
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`Riverside County
`Super. Ct. No. RIC1109398
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`SHARON MCGILL,
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`Plaintiff and Respondent;
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`v.
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`CITIBANK, N.A.,
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`Defendant and Appellant.
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`____________________________________)
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`In previous decisions, this court has said that the statutory remedies
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`available for a violation of the Consumers Legal Remedies Act (CLRA; Civ.
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`Code, § 1750 et seq.), the unfair competition law (UCL; Bus. & Prof. Code, §
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`17200 et seq.), and the false advertising law (id., § 17500 et seq.) include public
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`injunctive relief, i.e., injunctive relief that has the primary purpose and effect of
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`prohibiting unlawful acts that threaten future injury to the general public. (Cruz v.
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`PacifiCare Health Systems, Inc. (2003) 30 Cal.4th 303, 315-316 (Cruz);
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`Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066, 1077 (Broughton).) The
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`question we address in this case is the validity of a provision in a predispute
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`arbitration agreement that waives the right to seek this statutory remedy in any
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`forum. We hold that such a provision is contrary to California public policy and is
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`thus unenforceable under California law. We further hold that the Federal
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`Arbitration Act (FAA; 9 U.S.C. § 1 et seq.) does not preempt this rule of
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`California law or require enforcement of the waiver provision. We therefore
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`reverse the judgment of the Court of Appeal.
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`I. FACTUAL BACKGROUND
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`In 2001, plaintiff Sharon McGill opened a credit card account with
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`defendant Citibank, N.A. (Citibank) and purchased a “credit protector” plan
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`(Plan). Under the Plan, Citibank agreed to defer or to credit certain amounts on
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`McGill‟s credit card account when a qualifying event occurred, such as long-term
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`disability, unemployment, divorce, military service, or hospitalization. Citibank
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`charged a monthly premium for the Plan based on the amount of McGill‟s credit
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`card balance.
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`McGill‟s original account agreement did not contain an arbitration
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`provision. In October 2001, Citibank sent her a “Notice of Change in Terms
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`Regarding Binding Arbitration to Your Citibank Card Agreement” (2001 Notice),
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`which amended the original agreement by adding the following arbitration
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`provisions: “Either you or we may, without the other‟s consent, elect mandatory,
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`binding arbitration for any claim, dispute, or controversy between you and us
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`(called „Claims‟).” “All Claims relating to your account or a prior related account,
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`or our relationship are subject to arbitration, including Claims regarding the
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`application, enforceability, or interpretation of this Agreement and this arbitration
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`provision. All Claims are subject to arbitration, no matter what legal theory they
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`are based on or what remedy (damages, or injunctive or declaratory relief) they
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`seek. This includes Claims based on contract, tort (including intentional tort),
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`fraud, agency, your or our negligence, statutory or regulatory provisions, or any
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`other sources of law; . . . and Claims made independently or with other
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`claims . . . . Claims and remedies sought as part of a class action, private attorney
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`general or other representative action are subject to arbitration on an individual
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`(non-class, non-representative) basis, and the arbitrator may award relief only on
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`an individual (non-class, non-representative) basis.” “This arbitration provision is
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`governed by the Federal Arbitration Act (the „FAA‟).” “Claims must be brought
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`in the name of an individual person or entity and must proceed on an individual
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`(non-class, non-representative) basis. The arbitrator will not award relief for or
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`against anyone who is not a party. If you or we require arbitration of a Claim,
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`neither you, we, nor any other person may pursue the Claim in arbitration as a
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`class action, private attorney general action or other representative action, nor may
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`such Claim be pursued on your or our behalf in any litigation in any court.”
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`The 2001 Notice stated that McGill had the option to decline the arbitration
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`provision and to continue using her credit card under the existing terms until the
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`“later” of “the end of [her] current membership year or the expiration date on [her]
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`card(s).” McGill did not decline and, according to Citibank, the arbitration
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`provision became effective on November 30, 2001.
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`In February 2005, Citibank sent McGill a “Notice of Change in Terms,
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`Right to Opt Out, and Information Update” (2005 Notice), which informed her of
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`changes to the arbitration provisions and to several other aspects of her account
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`agreement. The 2005 Notice contained an opt-out provision similar to the opt-out
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`provision in the 2001 Notice. Again, McGill did not opt out and continued using
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`her credit card. In January 2007, Citibank sent McGill a complete copy of her
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`account agreement, which included arbitration provisions identical to those quoted
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`above.
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`In 2011, McGill filed this class action based on Citibank‟s marketing of the
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`Plan and the handling of a claim she made under it when she lost her job in 2008.
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`The operative complaint alleges claims under the UCL, the CLRA, and the false
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`advertising law, as well as the Insurance Code. For relief, it requests, among other
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`things, an injunction prohibiting Citibank from continuing to engage in its
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`allegedly illegal and deceptive practices.
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`Pursuant to the arbitration provision, Citibank petitioned to compel McGill
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`to arbitrate her claims on an individual basis. The trial court granted the petition
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`in part and denied it in part based on Broughton and Cruz, which together
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`established the following rule: Agreements to arbitrate claims for public
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`injunctive relief under the CLRA, the UCL, or the false advertising law are not
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`enforceable in California. Applying this rule — known as the Broughton-Cruz
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`rule — the trial court ordered McGill to arbitrate all claims other than those for
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`injunctive relief under the UCL, the false advertising law, and the CLRA. The
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`Court of Appeal reversed and remanded “for the trial court to order all of McGill‟s
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`claims to arbitration,” concluding that the FAA, as recently construed by the
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`United States Supreme Court in AT&T Mobility LLC v. Concepcion (2011) 563
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`U.S. 333 (Concepcion), preempts the Broughton-Cruz rule.
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`During oral argument in the Court of Appeal, McGill asserted that the
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`arbitration agreement is unenforceable because it purports to prohibit her from
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`pursuing claims for public injunctive relief, not just in arbitration, but in any
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`forum. The Court of Appeal did not mention this argument in its opinion. McGill
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`made the argument again in a petition for rehearing, which the Court of Appeal
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`denied without addressing the merits of the issue.
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`McGill filed a petition for review in this court, asserting (1) the Court of
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`Appeal erred in finding FAA preemption of the Broughton-Cruz rule, and (2) the
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`arbitration provision is invalid and unenforceable because it waives her right to
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`seek public injunctive relief in any forum. For reasons explained below, we agree
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`with her latter claim and we do not address the former.
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`II. DISCUSSION
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`We begin by summarizing the California consumer protection laws here at
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`issue. The Legislature enacted the CLRA “to protect consumers against unfair and
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`deceptive business practices and to provide efficient and economical procedures to
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`secure such protection.” (Civ. Code, § 1760.) “[T]o promote” these purposes, the
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`Legislature directed that the CLRA “be liberally construed and applied.” (Ibid.)
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`After setting forth a list of unlawful “methods of competition and unfair or
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`deceptive acts or practices” (id., § 1770), the CLRA authorizes any consumer who
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`has been damaged by an unlawful method, act, or practice to bring an action for
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`various forms of relief, including “[a]n order enjoining the methods, acts, or
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`practices” (id., § 1780, subd. (a)(2)). The CLRA also expressly declares that
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`“[a]ny waiver by a consumer” of the CLRA‟s provisions “is contrary to public
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`policy and shall be unenforceable and void.” (Id., § 1751.)
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`The UCL addresses “unfair competition,” which “mean[s] and include[s]
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`any unlawful, unfair or fraudulent business act or practice and unfair, deceptive,
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`untrue or misleading advertising and any act prohibited by [the false advertising
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`law].” (Bus. & Prof. Code, § 17200.) Its purpose “is to protect both consumers
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`and competitors by promoting fair competition in commercial markets for goods
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`and services.” (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 949.) “Actions for
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`relief” under the UCL may be brought by various government officials and “by a
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`person who has suffered injury in fact and has lost money or property as a result of
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`the unfair competition.” (Bus. & Prof. Code, § 17204.) “[T]he primary form of
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`relief available under the UCL to protect consumers from unfair business practices
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`is an injunction.” (In re Tobacco II Cases (2009) 46 Cal.4th 298, 319.) In this
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`regard, the UCL provides: “Any person who engages, has engaged, or proposes to
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`engage in unfair competition may be enjoined in any court of competent
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`jurisdiction. The court may make such orders or judgments . . . as may be
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`necessary to prevent the use or employment by any person of any practice which
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`constitutes unfair competition, as defined in this chapter, or as may be necessary to
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`restore to any person in interest any money or property, real or personal, which
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`may have been acquired by means of such unfair competition.” (Bus. & Prof.
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`Code, § 17203.)
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`The false advertising law makes unlawful “untrue or misleading”
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`statements designed to “induce the public to enter into any obligation” to purchase
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`various goods and services. (Bus. & Prof. Code, § 17500.) Like the UCL, the
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`false advertising law allows an action for relief to be brought by specified
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`government officials and “by any person who has suffered injury in fact and has
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`lost money or property as a result of a violation.” (Bus. & Prof. Code, § 17535.)
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`It also authorizes injunctive relief, stating: “Any person, corporation, firm,
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`partnership, joint stock company, or any other association or organization which
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`violates or proposes to violate this chapter may be enjoined by any court of
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`competent jurisdiction. The court may make such orders or judgments . . . as may
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`be necessary to prevent the use or employment by any person, corporation, firm,
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`partnership, joint stock company, or any other association or organization of any
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`practices which violate this chapter, or which may be necessary to restore to any
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`person in interest any money or property, real or personal, which may have been
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`acquired by means of any practice in this chapter declared to be unlawful.” (Ibid.)
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`In Broughton and Cruz, this court discussed the nature of the injunctive
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`relief available under these statutes. It distinguished between private injunctive
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`relief — i.e., relief that primarily “resolve[s] a private dispute” between the parties
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`(Broughton, supra, 21 Cal.4th at p. 1080) and “rectif[ies] individual wrongs” (id.
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`at p. 1080, fn. 5), and that benefits the public, if at all, only incidentally — and
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`public injunctive relief — i.e., relief that “by and large” benefits the general public
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`(id. at p. 1079) and that benefits the plaintiff, “if at all,” only “incidental[ly]”
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`and/or as “a member of the general public” (id. at p. 1080, fn. 5). For example,
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`the court explained in Broughton, an injunction under the CLRA against a
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`defendant‟s deceptive methods, acts, and practices “generally benefit[s]” the
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`public “directly by the elimination of deceptive practices” and “will . . . not
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`benefit” the plaintiff “directly,” because the plaintiff has “already been injured,
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`allegedly, by such practices and [is] aware of them.” (Ibid.) “[E]ven if a CLRA
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`plaintiff stands to benefit from an injunction against a deceptive business practice,
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`it appears likely that the benefit would be incidental to the general public benefit
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`of enjoining such a practice.” (Ibid.) Likewise, the court explained in Cruz, an
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`injunction under the UCL or the false advertising law against deceptive
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`advertising practices “is clearly for the benefit of . . . the general public”; “it is
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`designed to prevent further harm to the public at large rather than to redress or
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`prevent injury to a plaintiff.” (Cruz, supra, 30 Cal.4th at pp. 315-316.) To
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`summarize, public injunctive relief under the UCL, the CLRA, and the false
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`advertising law is relief that has “the primary purpose and effect of” prohibiting
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`unlawful acts that threaten future injury to the general public. (Broughton, supra,
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`at p. 1077.) Relief that has the primary purpose or effect of redressing or
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`preventing injury to an individual plaintiff — or to a group of individuals similarly
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`situated to the plaintiff — does not constitute public injunctive relief.
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`As noted ante, Broughton and Cruz collectively established the following
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`rule: Agreements to arbitrate claims for public injunctive relief under the CLRA,
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`the UCL, or the false advertising law are not enforceable in California. As also
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`noted ante, in the proceedings below, the parties and the courts focused on the
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`effect of this rule on Citibank‟s petition to compel McGill to arbitrate her claims
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`on an individual basis. The trial court applied the rule in declining to order
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`arbitration of claims for injunctive relief under the UCL, the false advertising law,
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`and the CLRA. The Court of Appeal, applying the high court‟s post-Cruz
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`decisions, concluded that the rule was preempted by the FAA and ordered all
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`claims to arbitration.
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`Although we granted review to consider the Court of Appeal‟s conclusion,
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`it is now clear that the Broughton-Cruz rule is not at issue in this case. As detailed
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`above, late in the Court of Appeal proceedings, McGill asserted that the arbitration
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`provision purports to preclude her from seeking public injunctive relief in any
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`forum. She repeats that assertion in this court, citing the following clauses of the
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`arbitration provision: (1) “[a]n award in arbitration shall determine the rights and
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`obligations between the named parties only, and only in respect of the Claims in
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`arbitration, and shall not have any bearing on the rights and obligations of any
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`other person, or on the resolution of any other dispute”; (2) “[t]he arbitrator will
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`not award relief for or against anyone who is not a party”; (3) “the arbitrator may
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`award relief only on an individual (non-class, nonrepresentative) basis”; and (4)
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`“neither you, we, nor any other person may pursue the Claims in arbitration as a
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`class action, private attorney general action or other representative action.” At
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`oral argument before us, Citibank agreed with McGill‟s reading of the arbitration
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`provision.
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`Given the parties‟ agreement, we do not independently analyze the
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`arbitration provision, but proceed based on the parties‟ shared view that it purports
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`to preclude McGill from seeking public injunctive relief in arbitration, in court, or
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`in any forum. Because, as Citibank states, the parties “elected . . . to exclude
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`public injunctive relief from arbitration,” the Broughton-Cruz rule — which
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`applies only when parties have agreed to arbitrate requests for such relief — is not
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`at issue, and we need not consider the rule‟s vitality in light of the high court‟s
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`post-Cruz FAA decisions. Instead, the question before us is whether the
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`arbitration provision is valid and enforceable insofar as it purports to waive
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`McGill‟s right to seek public injunctive relief in any forum.
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`In answering this question, we first conclude that McGill‟s complaint does,
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`in fact, appear to seek the type of public injunctive relief that Broughton and Cruz
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`identified. The UCL claim alleges in part that Citibank‟s “advertising and
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`marketing” of the Plan “is unfair, deceptive, untrue and misleading” in various
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`respects, and that Citibank “continue[s] to violate” the UCL by selling the Plan
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`“with advertising that includes false, misleading or deceptive information, and
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`material omissions.” For relief, it asks, among other things, for an order requiring
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`Citibank “to immediately cease such acts of unfair competition and enjoining
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`[Citibank] from continuing to conduct business via the unlawful, fraudulent or
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`unfair business acts and practices complained of herein and from failing to fully
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`disclose the true nature of its misrepresentations.”
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`The false advertising claim incorporates the allegations of the UCL claim
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`and additionally alleges in part that Citibank “engaged in unfair, deceptive, untrue,
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`and misleading advertising, relating to” the Plan, and “disseminated or caused to
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`be disseminated materially untrue, and misleading advertising statements with the
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`intent to either directly or indirectly induce members of the public . . . to purchase”
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`the Plan. For relief, it requests, among other things, “injunctive relief.”
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`The CLRA claim incorporates the allegations of the UCL and false
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`advertising law claims and additionally alleges in part that Citibank made
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`“representations and omissions” about the Plan that “were false, deceptive and/or
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`misleading,” and that Citibank “continue[s] to violate the CLRA by making
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`misrepresentations and concealing material facts relating to” the Plan “and by
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`selling the [P]lan based upon these misrepresentations and material omissions.”
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`For relief, it requests, among other things, “injunctive relief.”
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`More generally, the complaint‟s prayer for relief requests, among other
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`things: (1) a declaration that Citibank violated the UCL, the false advertising law,
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`and the CLRA by “disseminating . . . unfair, deceptive, or misleading advertising,
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`and material omissions”; (2) “injunctive relief to ensure compliance with this
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`section, pursuant to California Business & Professions Code sections 17200 et
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`seq.” and “California Civil Code section 1750 et seq.”; (3) entry of an order
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`requiring Citibank “to immediately cease the wrongful conduct as set forth above”
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`and “enjoining” Citibank “from continuing to falsely advertise or conceal material
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`information and conduct business via the unlawful and unfair business acts and
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`practices complained of herein”; and (4) entry of a judgment “for injunctive
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`relief.” In light of these allegations and requests for relief, which Citibank
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`ignores, we disagree with Citibank that McGill has failed adequately to specify
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`“the actual nature of the injunctive relief” she seeks or “to explain how the public
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`at large would benefit from” that relief.1
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`We also disagree with Citibank that, because “McGill has not established
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`that any of the alleged conduct she challenges is ongoing or likely to recur,” she
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`“has failed to establish that the relief she seeks is, in fact, public injunctive relief.”
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`As detailed ante, McGill alleges in her complaint that the conduct is ongoing. At
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`this stage of the proceeding — a motion to compel arbitration — it is premature to
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`1
`As Citibank observes, McGill‟s complaint also requests compensatory,
`monetary and punitive damages, and “injunctive relief in the form of restitution
`and/or disgorgement.” These remedies do not constitute public injunctive relief
`within the meaning of Broughton and Cruz. (Cruz, supra, 30 Cal.4th at pp. 317-
`320; Broughton, supra, 21 Cal.4th at p. 1084.)
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`consider whether she “has . . . established” these allegations with proof or how her
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`failure to do so would ultimately affect her request for injunctive relief. (See
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`Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 133 (plur. opn. of
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`George, C. J.) [“The mere fact that a defendant refrains from unlawful conduct
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`during the pendency of a lawsuit does not necessarily preclude the trial court from
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`issuing injunctive relief to prevent a posttrial continuation of the unlawful
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`conduct.”]; Robinson v. U–Haul Co. of California (2016) 4 Cal.App.5th 304, 315
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`[“[T]here is no hard-and-fast rule that a party‟s discontinuance of illegal behavior
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`makes injunctive relief . . . unavailable. „While voluntary cessation of conduct
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`may be a factor in a court‟s exercise of its equitable jurisdiction to issue an
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`injunction, it is not determinative.‟ ”].) In arguing otherwise, Citibank, quoting
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`Green Tree Financial Corp.-Ala. v. Randolph (2000) 531 U.S. 79, 91, asserts that
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`“ „the party resisting arbitration bears the burden of proving that the claims at issue
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`are unsuitable for arbitration.‟ ” But Citibank cites no authority — and we are
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`aware of none — applying this principle, which governs an effort to resist
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`arbitration of a claim the parties agreed to arbitrate, to an effort to pursue a claim
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`the parties excluded from arbitration.
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`We next address the following threshold issue: whether post-Cruz
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`amendments to the UCL and the false advertising law eliminated the ability of
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`private plaintiffs like McGill to seek public injunctive relief under those laws.2
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`Before 2004, these statutes authorized action by “any person acting for the
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`interests of itself, its members or the general public.” (Bus. & Prof. Code, former
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`§ 17204, as amended by Stats. 1993, ch. 926, § 2, p. 5198 [UCL]; id., former §
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`2
`We invited the parties and amicus curiae to submit supplemental briefs on
`this issue. Citibank‟s response, in addition to discussing the UCL and the false
`advertising law, added that public injunctive relief is unavailable in this case under
`the CLRA because the CLRA “does not apply to credit cards in the first place.”
`Because Citibank did not raise this issue in earlier briefing and it is outside the
`scope of our request for supplemental briefing, we decline to address it.
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`17535, as amended by Stats. 1972, ch. 711, § 1, p. 1299 [false advertising law].)
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`In 2004, the voters, by passing Proposition 64, amended these statutes to provide
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`that private individuals may (1) file an action for relief only if they have “suffered
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`injury in fact and [have] lost money or property as a result of” a violation (Bus. &
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`Prof. Code, §§ 17204, 17535), and (2) “pursue representative claims or relief on
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`behalf of others only if [they] meet[] [these] standing requirements . . . and
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`compl[y] with Section 382 of the Code of Civil Procedure,” which relates to
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`representative suits (id., §§ 17203, 17535). The amended statutes also specify that
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`“these limitations do not apply to claims brought . . . by the Attorney General, or
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`a[ny] district attorney, county counsel, city attorney, or city prosecutor in this
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`state.” (Ibid.) In uncodified sections, Proposition 64 identified the “[f]il[ing] [of]
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`lawsuits” by private attorneys “on behalf of the general public” as a misuse of the
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`unfair competition laws (Prop. 64, § 1, subd. (b)(4), 4D West‟s Ann. Bus. & Prof.
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`Code (2008 ed.) foll. § 17203, p. 409, hereafter Annotated Code), and stated the
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`voters‟ “intent . . . that only the California Attorney General and local public
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`officials be authorized to file and prosecute actions on behalf of the general
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`public” (id., § 1, subd. (f)).
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`We conclude that these provisions do not preclude a private individual who
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`has “suffered injury in fact and has lost money or property as a result of” a
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`violation of the UCL or the false advertising law (Bus. & Prof. Code, §§ 17204,
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`17535) — and who therefore has standing to file a private action — from
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`requesting public injunctive relief in connection with that action. A person who
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`meets these requirements is “fil[ing]” the “lawsuit[]” or “action[]” on his or her
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`own behalf, not “on behalf of the general public.” (Prop. 64, § 1, subds. (b)(4)),
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`(f), Ann. Code, supra, at p. 409.) This remains true even if the person seeks, as
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`one of the requested remedies, injunctive relief “the primary purpose and effect
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`of” which is “to prohibit and enjoin conduct that is injurious to the general
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`public.” (Broughton, supra, 21 Cal.4th at p. 1077.) We find nothing in the ballot
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`materials for Proposition 64 suggesting that voters, in stating their intent “that only
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`the California Attorney General and local public officials be authorized to file and
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`prosecute actions on behalf of the general public” (Prop. 64, § 1, subd. (f), Ann.
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`Code, supra, at p. 409), meant to preclude individuals who meet the standing
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`requirements for bringing a private action from requesting such relief. On the
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`contrary, the Attorney General‟s “Official Title and Summary” explained that,
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`under Proposition 64, “if [an] individual was actually injured by, and suffered
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`financial/property loss because of, an unfair business practice,” he or she could
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`“sue” for “private enforcement of [the] unfair business competition laws.” (Voter
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`Information Guide, Gen. Elec. (Nov. 2, 2004), official title and summary of Prop.
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`64, p. 38.) As we have already noted ante, “an injunction” is “the primary form of
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`relief available under the UCL to protect consumers from unfair business
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`practices.” (In re Tobacco II Cases, supra, 46 Cal.4th at p. 319; see Clayworth v.
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`Pfizer, Inc. (2010) 49 Cal.4th 758, 789 [ “[i]f a party has standing under” the UCL,
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`“it may seek injunctive relief”].)
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`For several reasons, we also conclude that a request for such relief does not
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`constitute the “pursu[it]” of “representative claims or relief on behalf of others”
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`within the meaning of Business and Professions Code sections 17203 or 17535,
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`such that “compli[ance] with Section 382 of the Code of Civil Procedure” is
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`required. First, reading the phrase “on behalf of others” (Bus. & Prof. Code,
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`§§ 17203 or 17535) as referring to the general public would create conflict with
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`other parts of Proposition 64. This reading would seem to authorize private
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`individuals to proceed on behalf of the general public if they “compl[y] with
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`Section 382 of the Code of Civil Procedure” (Bus. & Prof. Code, §§ 17203,
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`17535), which would conflict with the voters‟ stated intent “that only the
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`California Attorney General and local public officials be authorized to file and
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`prosecute actions on behalf of the general public” (Prop. 64, § 1, subd. (f), Ann.
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`Code, supra, at p. 409, italics added). We must, if possible, “harmonize all of the
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`relevant provisions of” Proposition 64. (Spanish Speaking Citizens’ Foundation,
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`Inc. v. Low (2000) 85 Cal.App.4th 1179, 1227 [construing Prop. 103].)
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`Second, we have held that the phrase “compl[y] with Section 382 of the
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`Code of Civil Procedure” (Bus. & Prof. Code, §§ 17203, 17535) “imposes a
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`requirement that the action be brought as a class action.” (Arias v. Superior Court
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`(2009) 46 Cal.4th 969, 978.) This requirement has never been imposed with
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`regard to requests to enjoin future wrongful business practices that will injure the
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`public, and we find nothing in the ballot materials for Proposition 64 suggesting an
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`intent to link or restrict such relief to the class action context. Indeed, imposing
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`this requirement would largely eliminate the ability of a private plaintiff to pursue
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`such relief, because class certification requires “the existence of both an
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`ascertainable class and a well-defined community of interest among the class
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`members” (Washington Mutual Bank v. Superior Court (2001) 24 Cal.4th 906,
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`913), and “ „the general public‟ . . . fails to meet” this requirement (Czap v. Credit
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`Bureau of Santa Clara Valley (1970) 7 Cal.App.3d 1, 6).
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`Supporting this conclusion is our 2000 decision in Kraus v. Trinity
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`Management Services, Inc. (2000) 23 Cal.4th 116, 121, which explained that
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`under the UCL‟s then-existing standing provision, not all actions “brought on
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`behalf of absent persons by a private party” had to be “certified as a class action.”
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`After noting that that standing provision authorized “ „[a]ny person acting for the
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`interests of itself, its members or the general public‟ . . . [to] seek UCL relief on
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`behalf of the general public,” we stated: “We use the term „representative action‟
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`to refer to a UCL action that is not certified as a class action in which a private
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`person is the plaintiff and seeks disgorgement and/or restitution on behalf of
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`persons other than or in addition to the plaintiff.” (Kraus, at p. 126, fn. 10, italics
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`added.) It seems likely that when the voters, just a few years later in 2004, revised
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`the UCL‟s standing provisions to require “representative claims” to be brought as
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`class actions (Bus. & Prof. Code, § 17203), they had in mind, not an action
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`requesting public injunctive relief, but the kind of “ „representative action‟ ” we
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`discussed in Kraus, i.e., “a UCL action that is not certified as a class action in
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`which a private person is the plaintiff and seeks disgorgement and/or restitution
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`on behalf of persons other than or in addition to the plaintiff.” (Kraus, at p. 126,
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`fn. 10, italics added.)
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`Having determined that public injunctive relief remains a remedy available
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`to private plaintiffs under the UCL and the false advertising law, as well as under
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`the CLRA, we next conclude that the arbitration provision here at issue is invalid
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`and unenforceable under state law insofar as it purports to waive McGill‟s
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`statutory right to seek such relief. Civil Code section 3513 provides: “Any one
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`may waive the advantage of a law intended solely for his benefit. But a law
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`established for a public reason cannot be contravened by a private agreement.”
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`Consistent with this provision, we have explained that “a party may waive a
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`statutory provision if a statute does not prohibit doing so [citation], the statute‟s
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`„public benefit . . . is merely incidental to [its] primary purpose‟ [citation], and
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`„waiver does not seriously compromise any public purpose that [the statute was]
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`intended to serve‟ [citation].” (DeBerard Properties, Ltd. v. Lim (1999) 20
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`Cal.4th 659, 668-669.) By definition, the public injunctive relief available under
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`the UCL, the CLRA, and the false advertising law, as discussed in Broughton and
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`Cruz, is primarily “for the benefit of the general public.” (Broughton, supra, 21
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`Cal.4th at p. 1082; see Cruz, supra, 30 Cal.4th at p. 315.) Its “evident purpose,”
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`the court said in Broughton, is “to remedy a public wrong,” “not to resolve a
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`private dispute” (Broughton, at p. 1080), and any benefit to the plaintiff requesting
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`such relief “likely . . . would be incidental to the general public benefit of
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`enjoining such a practice.” (Id. at p. 1080, fn. 5.) Accordingly, the waiver in a
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`predispute arbitration agreement of the right to seek public injunctive relief under
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`these statutes would seriously compromise the public purposes the statutes were
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`intended to serve. Thus, insofar as the arbitration provision here purports to waive
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`McGill‟s right to request in any forum such public injunctive relief, it is invalid
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`and unenforceable under California law.
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`Citibank does not argue that the waiver is valid under California law.
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`Instead, it argues that a California rule precluding enforcement of the waiver
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`would be preempted by the FAA. According to Citibank, the FAA requires
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`enforcement of the arbitration provision “as written, regardless of what it says or
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`implies about claims seeking public injunctive relief.” “[A] court,” Citibank
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`asserts, “may not avoid the FAA by applying state-law rules of contract
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`interpretation to limit the scope of an agreement to arbitrate.”
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`We reject Citibank‟s overbroad view of the FAA. As Citibank observes,
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`the high court has stated that section 2 of the FAA requires courts to “place
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`arbitration agreements on an equal footing with other contracts [citation] and [to]
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`enforce them according to their terms.” (Concepcion, supra, 563 U.S. at p. 339.)
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`However, the high court has qualified this statement by reference to “[t]he final
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`phrase of § 2,” which is known as the FAA‟s “saving clause” and which “permits
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`arbitration agreements to be declared unenforceable „upon such grounds as exist at
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`law or in equity