134 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com (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). 60 Little v. Auto Steigler, Inc., 29 Cal. 4th 1064 (2003) (special Armendariz rules apply to claim for dismissal in violation of public policy); see Mercuro v. Sup. Court (Countrywide Securities Corp.), 96 Cal. App. 4th 167, 180 (2002) (special rules cover claim under statute enacted for “public reason,” such as Labor Code sections 230.8 [protecting employee-parent for taking time off to visit school] and 970 [prohibiting false job promises to induce people to move]). 61 Nyulassy v. Lockheed Martin Corp., 120 Cal. App. 4th 1267, 1282-83 (2004). Importantly, the challenged arbitration agreement also required only the employee to arbitrate, and shortened the employee’ statutes of limitations, so the independent significance of the “free peek” provision was unclear. See also Carmona v. Lincoln Millennium Car Wash, Inc., 226 Cal. App. 4th 74, 89 (2014) (relying on Nyulassy to find a similar “unilateral `free peek’ provision” substantively unconscionable, because the provision unfairly favored the employer by subjecting employees to mandatory prearbitration disclosures while the employer had “no corresponding obligation … to discuss its disputes with employees before taking action in court or through arbitration”); Carlson v. Home Team Pest Defense, Inc., 239 Cal. App. 4th 619, 635 (2015) (arbitration agreement unconscionable in requiring employees, but not the employer, “to submit to an
RkJQdWJsaXNoZXIy OTkwMTQ4