134 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com 29 AT&T Mobility LLC v. Concepcion, 563 U.S. 321, 131 S. Ct. 1740, 1747 (2011). 30 See Discover Bank v. Sup. Court, 36 Cal. 4th 148 (2005) (in contract of adhesion, arbitration provisions that waive class actions are void as against public policy). 31 Sonic-Calabasas A, Inc. v. Moreno, 51 Cal. 4th 659 (2011) (“Sonic I”). 32 Sonic-Calabasas A, Inc. v. Moreno, 132 S. Ct. 496 (2011) (remanding to Supreme Court of California for further consideration in light of AT&T Mobility LLC v. Concepcion, 563 U.S. 321 (2011)). On remand, the California Supreme Court acknowledged that the FAA, as interpreted by Concepcion, preempts any categorical bar on Berman hearing waivers. Nonetheless, the California Supreme Court insisted that unconscionability could still be found, on a case-by-case basis, and that a Berman hearing waiver may be considered a relevant factor supporting an ultimate finding of unconscionability. Sonic-Calabasas A, Inc. v. Moreno, 57 Cal. 4th 1109 ( 2013) (“Sonic II”) (unconscionability remains a valid defense against enforcement of arbitration agreements). 33 Direct TV, Inc. v. Imburgia, 136 S. Ct. 463 (2015). 34 Lamps Plus, Inc. v. Varela, 139 S. Ct. 1407, 1412-13 (2019). 35 Id. at 1412-13. 36 Id. at 1416. Lamps Plus followed the U.S. Supreme Court case in Stolt-Nielsen S.A. v. Animal Feeds Int’l Corp., 559 U.S. 662, 684 (2010), which held that parties who have not contracted for class arbitration may not be forced to arbitrate class claims, and that class arbitration was inappropriate to order where the arbitration agreement was silent on class arbitration. 37 Armendariz v. Foundation Health Psychcare Services, Inc., 24 Cal. 4th 83 (2000). 38 E.g., Ontiveros v. DHL Express (USA), Inc., 164 Cal. App. 4th 494 (2008) (upholding denial of motion to compel arbitration of suit for employment discrimination; arbitration agreement was unconscionable, and therefore unenforceable, because employee had to sign it to be hired, and because agreement gave arbitrator sole authority to determine arbitrability, required employee to pay costs unique to 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 Transport, 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).
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