©2025 Seyfarth Shaw LLP www.seyfarth.com 2025 Cal-Peculiarities | 139 arbitration, deprived employees of right to recover statutory costs and reasonable attorney fees if employee prevailed, and limited employee to one deposition; trial court could declare entire agreement unconscionable rather than severing unconscionable provisions where unconscionable provisions governing arbitrability, discovery, and costs permeated entire agreement). Ontiveros has since been abrogated as to its conclusion that an arbitration agreement is unconscionable simply by virtue of delegating the issue of arbitrability to the arbitrator. See Tiri v. Lucky Chances, Inc., 226 Cal. App. 4th 231, 248-50 (2014) (recognizing Ontiveros’s abrogation in light of Rent-ACenter, West, Inc. v. Jackson, 561 U.S. 63 (2010), which held that such delegation clauses are valid absent a challenge specific to the delegation clause). 39 Ramos v. Sup. Court, 28 Cal. App. 5th 1042, 1057-58 (2018) (holding it was unnecessary to first find whether law firm “income partner” was an employee of the firm, since the firm had a superior bargaining position akin to that of an employer-employee relationship). See also Ali v. Daylight Transp., LLC, 59 Cal. App. 5th 462 (2020) (applying Armendariz to arbitration agreement between transportation company and truck drivers classified as independent contractors); Subcontracting Concepts (CT), LLC v. De Melo, 34 Cal. App. 5th 201, 209-10 (2019) (applying Armendariz to arbitration agreement because of “power imbalance” between the parties, without deciding whether individual classified as an independent contractor was really an employee); Wherry v. Award, Inc., 192 Cal. App. 4th 1242, 1249) (applying Armendariz to arbitration agreement even though plaintiffs were independent contractors, given that the arbitration provision was mandatory). 40 Torrecillas v. Fitness Int’l, LLC, 52 Cal. App. 5th 485, 492 (2020). 41 Id. at 492-501. 42 OTO, L.L.C. v. Kho, 8 Cal. 5th 111, 126-27 (2019). 43 Id. at 128. 44 42 Cal. 4th 443 (2007). 45 Circuit City Stores, Inc. v. Najd, 294 F.3d 1104, 1108 (9th Cir. 2002); Circuit City Stores, Inc. v. Ahmed, 283 F.3d 1198, 1198-1200 (9th Cir. 2002). 46 42 Cal. 4th at 471-72. 47 Id. at 480-81 (Baxter, J., dissenting). 48 Trivedi v. Curexo Tech. Corp., 189 Cal. App. 4th 387 (2010). See also Mayers v. Volt Mgmt. Corp., 203 Cal. App. 4th 1194, 1208 (2012) (“By failing to even identify the set of arbitration rules that would apply to the parties’ final and binding arbitration of employment disputes, the arbitration provisions subjected plaintiff to unreasonable surprise and oppression.”). 49 Baltazar v. Forever 21, Inc., 62 Cal. 4th 1237, 1246 (2016) (unanimously upholding an arbitration agreement against claims of unconscionability). The agreement, which appeared in a job application, was enforceable even though (i) it was made a condition of employment, (ii) the employer did not provide the employee with a copy of the arbitration rules, (iii) the agreement gave both sides the right to seek provisional judicial relief, (iv) the agreement said the claims subject to arbitration were all employment-related claims, including but “not limited to” a series of claims that only an employee would bring, and (v) the agreement provided for “all necessary steps” to protect “trade secrets and proprietary and confidential information.” 50 Wherry v. Award, Inc., 192 Cal. App. 4th 1242 (2011). 51 Penilla v. Westmont Corp., 3 Cal. App. 5th 205 (2016); see Carmona v. Lincoln Millennium Car Wash, Inc., 226 Cal. App. 4th 74, 80-81 (2014) (finding procedural unconscionability where employees spoke little or no English and had just minutes to read and sign English language arbitration documents). 52 Subcontracting Concepts (CT), LLC v. De Melo, 34 Cal. App. 5th 201, 80-81 (2019). 53 Chavarria v. Ralphs Grocery Co., 733 F.3d 916 (9th Cir. 2013) (employer arbitration policy deemed so one-sided it “shocked the conscience” and was unenforceable under California law). 54 OTO, L.L.C. v. Kho, 8 Cal. 5th 111 (2019). 55 Id. As Justice Chin noted in dissent, this opinion creates tension with the FAA, which prohibits courts from refusing to enforce arbitration on the basis that another forum was preferable or that arbitration would not be effective in vindicating a statutory right. 56 Armendariz, 24 Cal. 4th at 117. (“Given the disadvantages that may exist for plaintiffs arbitrating disputes, it is unfairly one-sided for an employer with superior bargaining power to impose arbitration on the employee as plaintiff but not to accept such limitations when it seeks to prosecute a claim against the employee, without at least some reasonable justification for such one-sidedness based on ‘business realities.’”‘). The language about “disadvantages that may exist for plaintiffs arbitrating disputes” betrays a judicial prejudice against arbitration, which is antithetical to the FAA. 57 Thus, Trivedi v. Curexo Tech. Corp., 189 Cal. App. 4th 387, 396-97 (2010), disapproved of a provision permitting the parties to seek judicial injunctive relief while arbitration proceeded, because Trivedi viewed the employer as more likely to seek injunctive relief than the employee. What makes this conclusion particularly peculiar, even for California, is that the California Arbitration Act itself authorizes precisely this sort of interim judicial injunctive relief. Civ. Proc. Code § 1281.8(b) (party to arbitration agreement may seek provisional judicial relief, if arbitral award “may be rendered ineffectual without provisional relief[,]” without thereby waiving the right to arbitrate). Finally, in 2016, the California Supreme Court repudiated this holding of Trivedi: “[A]n arbitration agreement is not substantively unconscionable simply because it confirms the parties’ ability to invoke undisputed statutory rights.” Baltazar v. Forever 21, Inc., 62 Cal. 4th 1237 (2016). 58 Trivedi, 189 Cal. App. 4th at 394-95 (arbitration agreement cannot serve to waive statutory rights, and so arbitration clause calling for prevailing-party attorney fees was “substantively unconscionable” because it put the suing employee “at greater risk than if he brought his FEHA claims in court”); see also Wherry v. Award, Inc., 192 Cal. App. 4th at 1248-49 (arbitration agreement authorizing arbitrator to award costs, including arbitration fees, to the prevailing party was substantively unconscionable, because the agreement would cause a losing FEHA plaintiff to pay costs greater than the costs of litigating in court). 59 See Chavarria v. Ralphs Grocery Co., 733 F.3d 916, 923-26 (9th Cir. 2013).
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