and REINHARDT, Circuit Judge, concurring:
Plaintiffs Doe 1 and 2 have alleged sufficient facts to invoke California’s public policy. California courts have made clear that they will “refuse to defer to the selected forum if to do so would substantially diminish the rights of California residents in a way that violates our state’s public policy.” Mendoza, 90 Cal.App.4th 1, 108 Cal.Rptr.2d 699, 707 (2001) (emphasis added). In this case, plaintiffs, who allege that they were California residents at the time of the filing of the complaint, are bringing claims under California’s consumer protection statutes, while the defendant seeks to enforce the same AOL contract by relying on the exact contract provisions that Mendoza refused to apply. Nothing in California law suggests that a plaintiff must have been a resident for any period of time before invoking California’s public policy. To the contrary, being a resident at the time the complaint is filed is sufficient. See id. at 708, 709 (evaluating the effect of the forum selection clause on the rights of “California residents”).
As the per curiam opinion recognizes, California’s Consumer Legal Remedies Act states that “[a]ny waiver by a consumer of *1085the provisions of this title is contrary to public policy and shall be unenforceable and void.” Cal. Civ.Code § 1751. California public policy is offended by any clause that would require the plaintiffs, being California residents, to pursue their claims in a forum that does not permit class actions. This is true regardless of whether plaintiffs’ rights are waived directly by a forum selection clause or indirectly, as our colleague proposes, through conflicts of law analysis. As Mendoza made clear, “Enforcement of the contractual forum selection and choice of law clauses would be the functional equivalent of a contractual waiver of the consumer protections under the CLRA and, thus, is prohibited under California law.” Mendoza, 108 Cal. Rptr.2d at 702 (emphasis added). As a result, no further pleadings are necessary. Any purported waiver of the rights of a California consumer is unenforceable.
Our colleague has created a pleading requirement premised on a supposed distinction between California “consumers” and California “residents.” However, Mendoza treats California consumers and California residents as interchangeable, making it clear that, at least for the purposes of the California Consumers Legal Remedies Act, no such distinction exists under California law. This is not surprising given that it is difficult, if not impossible, to reside somewhere without also consuming there. Every California resident is a California consumer. Moreover, the California courts have never applied a pleading requirement such as that proposed by our colleague. If California wishes to adopt such a requirement, its courts are free to do so. However, as a federal court sitting in diversity jurisdiction, we apply, but do not create, state law. See Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Thus, we may not do so here.
We would add that we do not share our colleague’s fear that there will be a rush by out-of-staters to establish California residency in order to file consumer class actions — that we face a new “Gold Rush.” No such rush has occurred in the past despite the state’s policy designed to protect California consumers’ right to file class actions in cases of fraud or “unfair and deceptive business practices.” Mendoza, 108 Cal.Rptr.2d at 710.1 The chain of horrors tactic is not a credible one as urged in this case. There are far better reasons to move to the Golden State than are conjured up here by our imaginative and creative colleague.
. Judge Bea's reliance on the example of Seymour Lazar is entirely out of place. Mr. Lazar was a Californian from childhood. See Rhonda L. Rundle, “Legal Setback: A Career in Courts Leads to Trouble For Seymour La-zar,” Wall St. J., Jan. 19, 2006, at Al.