Aceves

Dissenting.

I disagree with the majority’s conclusion that the arbitration agreement “clearly and unmistakably” provided that the question whether this dispute is arbitrable must be resolved by the arbitrator. I agree with the district court that “it is clear that the parties’ arbitration agreement does not encompass representative claims.”

Under California law, ambiguities in a contract must be resolved against the drafter. Cal. Civ.Code § 1654 (West 1982); see Weeshoff Constr. Co. v. Los Angeles County Flood Control List., 88 Cal.App.3d 579, 587-88 , 152 Cal.Rptr. 19 (Cal.App.1979) (where a written contract includes some “uncertainty of meaning, [the contract] must be construed against the drafter”).

Here, the arbitration agreement states that “a claim can only be arbitrated on an individual basis and not as a class action.” The agreement also provides that “[i]f any party elects arbitration with respect to a claim, neither you [plaintiff Aceves] nor we [defendant Autonation] will have the right ... to participate as a representative or member of any class or claimants pertaining to such claim.” These provisions suggest that the arbitration agreement does not prohibit class…

MEMORANDUM **

Autonation and Mr. Wheels, Inc. d/b/a/ Power Toyota Cerritos (collectively “Auto-nation”) appeal a district court’s denial of their motion to compel arbitration. The district court had jurisdiction pursuant to 28 U.S.C. § 1331 because Autonation had previously removed the case, which alleged a violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et. seq., to federal court. We exercise jurisdiction pursuant to 9 U.S.C. § 16 (a)(l)(A)-(B), and we reverse and remand with instructions for the district court to compel arbitration regarding the scope of the arbitration agreement.

“[T]he question ‘who has the primary power to decide arbitrability’ turns upon what the parties agreed about that matter.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 , 115 S.Ct. 1920 , 131 L.Ed.2d 985 (1995). “Generally, the question of whether a dispute is arbitrable is decided by the courts. However, where the parties clearly and unmistakably provide otherwise, the courts will be divested of their authority and an arbitrator will decide in the first instance whether a dispute is arbitrable.” United Bhd. of Carpenters & Joiners of Am., Local No.…