136 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com 72 Armendariz, 24 Cal. 4th at 124. 73 Armendariz, 24 Cal. 4th at 93 (citations omitted). See Wherry v. Award, Inc., 192 Cal. App. 4th 1242, 1250 (2011). 74 Juarez v. Wash Depot Holdings, Inc., 24 Cal. App. 5th 1197, 2013 (2018). The Court of Appeal breezed past the point that the English version was to control by adopting a cynical, speculative rationale: “At best, the difference in the severability clauses in the Englishlanguage and Spanish-language versions of the handbook is negligent; at worse, it is deceptive. Under the circumstances, we construe the ambiguous language against the interest of the party that drafted it. … This rule applies with particular force in the case of a contract of adhesion. … Wash Depot may have left the meaning of severability deliberately obscure, intending to decide at a later date what meaning to assert.” Id. at 2013 (citations omitted) (internal quotation marks omitted). 75 Ali v. Daylight Transport, LLC, 59 Cal. App. 5th 462 (2020). 76 Lange v. Monster Energy Co., 46 Cal. App. 5th 436, 454 (2020) (“No authority supports the trial court’s conclusion that any more than a single unconscionable provision in an arbitration agreement precludes severance.”) (emphasis in original). See Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1273 (9th Cir. 2017) (presence of more than one substantively unconscionable term “is only one of the relevant factors” in the severability inquiry, where “the dispositive question is whether ‘the central purpose of the contract’ is so tainted with illegality that there is no lawful object of the contract to enforce”). 77 Lange v. Monster Energy Co., 46 Cal. App. 5th 436, 455 (2020). 78 Kec v. Superior Court (R.J. Reynolds Tobacco Co.), 51 Cal. App. 5th 972 (2020). 79 Conyer v. Hula Media Services, LLC, 268 Cal. Rptr. 3d 346 (2020). The two offending provisions required the parties to pay pro rata shares of arbitral fees and costs, and required the arbitrator to award attorney fees to the prevailing party—provisions invalid under, respectively, Armendariz v. Foundation Health Psychcare Services, Inc., 24 Cal. 4th 83-84, 112 (2000) (employees can’t be compelled to pay more fees than what they would have to pay in court) and Serafin v. Balco Properties Ltd., 235 Cal. App. 4th 165, 183 (2015) (requiring each party to bear own attorney fees was unenforceable because it would deprive a FEHA plaintiff an unwaivable statutory remedy available if she prevailed: “[s]uch a modification of California law is inappropriate under Armendariz”). The Court of Appeal in Conyer explained why these provisions were severable: “Plaintiff has not shown that unconscionability so permeates the arbitration clause that the arbitrator’s fees and costs and the attorney fees provisions cannot be severed, leaving a fully mutual and enforceable arbitration agreement. This is not a case where we must reform the contract by augmenting it or otherwise rewriting the parties’ agreement, which of course we cannot do.” 53 Cal. App. 5th at 354. 80 Conyer v. Hula Media Servs., 268 Cal. Rptr. 3d 346 (2020), review granted, No. S264821 (Cal. Dec. 16, 2020). 81 Conyer v. Hula Media Services, 482 P.3d 988 (Mar. 25, 2021) (dismissing matter as moot). 82 Martinez v. BaronHR, Inc., 51 Cal. App. 5th 962, 967-68 (2020). 83 Id. at 969-70. 84 Esparza v. Sand & Sea, Inc., 2 Cal. App. 5th 781, 787 (2016) (citations omitted). 85 Id. at 789. 86 Mitri v. Arnel Mgmt. Co., 157 Cal. App. 4th 1164, 1170-71 (2007). See Gorlach v. Sports Club Co., 209 Cal. App. 4th 1497, 1509 (2012) (declining to enforce handbook arbitration clause because handbook told employees they must sign an arbitration agreement, “implying that it was not effective until (and unless) they did so. Because Gorlach never signed the arbitration agreement, we cannot imply the existence of such an agreement between the parties.”). 87 Ruiz v. Moss Bros. Auto Grp., Inc., 232 Cal. App. 4th 836, 842 (2014) (affirming order denying petition to compel arbitration where employer did not present enough evidence to show that employee’s electronic signature on the arbitration agreement was in fact the “act of” the employee). 88 Vasserman v. Henry Mayo Newhall Mem’l Hosp., 8 Cal. App. 5th 236 (2017). 89 Garner v. Inter-State Oil Co., 52 Cal. App. 5th 619, 624 (2020). 90 Diaz v. Sohnen Enters., 34 Cal. App. 5th 126 (2019) (when an at-will employee continues employment after notification that an agreement to arbitrate is a condition of continued employment, the employee impliedly consents to the arbitration agreement). 91 Coughenour v. Del Taco, LLC, 57 Cal. App. 5th 740 ( 2020). 92 Jarboe v. Hanlees Auto Group, 53 Cal. App. 5th 539, 550-51 (2020). 93 Id. at 554 (“These boilerplate allegations are not sufficient to support defendants’ equitable estoppel claim. … The defendants have not admitted that they are ‘joint employer[s]’ nor have they provided any evidence that shows a joint employment relationship with Jarboe.”). 94 Id. at 557. 95 Franco v. Greystone Ridge Condominium, 39 Cal. App. 5th 221, 223-24 (2019). 96 Fleming Distribution Co. v. Younan, 49 Cal. App. 5th 73 (2020). 97 AB 51, 2019 bill adding Lab. Code § 432.6 and Gov’t Code § 12953. 98 Chamber of Commerce of the United States v. Becerra, 438 F. Supp. 3d 1078 (E.D. Cal. Feb. 7, 2020). 99 Chamber of Commerce of the United States v. Bonta, 62 F.4th 473 (9th Cir. 2023). 100 SB 707, 2019 bill amending Code Civ. Proc. §§ 1280, 1281.96, and adding Civ. Code §§ 1281.97, 1281.98, 1281.99. Newly amended section 1281.96 of the Code of Civil Procedure will require arbitration providers to report publicly a large array of information on each arbitration within the last five years, including the identity of the nonconsumer party, the nature of the dispute, who won the arbitration, how often the nonconsumer party has been a party to arbitration, the name of the consumer party’s attorney, and the name of the arbitrator. The arbitration provider must also report, in the aggregate, the ethnicity, race, disability, veteran status, gender, gender identity, and sexual orientation of all its arbitrators, as self-reported by the arbitrators.
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