Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 08CECG04019. Alan M. Simpson, Judge.
Doyle & Schallert and David Douglas Doyle for Defendant and Appellant.
Law Offices of Steven M. Sokoloff, Steven M. Sokoloff; Stephen F. Danz & Associates and Stephen F. Danz for Plaintiff and Respondent.
OPINION
HILL, P.J.
Defendant moved to compel arbitration of the claims asserted in plaintiff’s complaint, which included allegations of wrongful termination and disability discrimination in employment. The trial court denied the motion on the ground the arbitration agreement was unconscionable. We find plaintiff failed to establish the agreement was unconscionable and reverse the order.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed a complaint against defendant alleging 17 causes of action arising out of the termination of her employment. Her causes of action included wrongful constructive termination in violation of public policy, disability discrimination and other violations of the Fair Employment and Housing Act (FEHA; Gov. Code § 12940, et seq.), invasion of privacy, defamation, intentional and negligent infliction of emotional distress, and unfair business practices (Bus. & Prof. Code, § 17200, et seq.). She alleged she began working for defendant as a telephone exchange manager on March 13, 2008. On May 12, 2008, plaintiff’s boss sent her home because she was sick; when she arrived at work the following day, her boss gave her a final paycheck, said she was not terminated, but told her she could not come back without a note from her doctor specifically stating she was well enough to return to full time work and to perform the basic functions of her job. Twice she returned with notes from her doctor, but defendant contended they were insufficient; defendant asked her to provide a release of doctor-patient confidentiality to permit defendant to discuss her diagnosis and treatment with her doctor. On June 15, 2008, plaintiff resigned, protesting the requirement that she permit defendant to discuss her medical condition with her doctor.
Defendant filed a motion to compel arbitration, submitting an employee manual containing an arbitration provision and contending plaintiff initialed it on or about March 14, 2008. Plaintiff challenged defendant’s authentication of the employee manual, questioning whether the plaintiff initialed the manual submitted by defendant and whether the manual submitted was the one in effect on March 14, 2008. The copy of the employee manual filed with the trial court was missing the page containing the bulk of the arbitration provision. The court denied the motion without prejudice because the arbitration agreement submitted was incomplete.
Defendant filed a second motion to compel arbitration. In support, it submitted a complete, unsigned copy of the employee manual, a copy of the page plaintiff initialed, and an explanation that, when an employee initials the employee manual, only the initialed page is placed in the employee’s personnel file, not an entire copy of the manual. The declaration of defendant’s custodian of records stated the manual submitted was the version reviewed and initialed by plaintiff. Plaintiff opposed the motion, again challenging the authentication of the arbitration agreement, and contending the agreement was unconscionable.
The court denied the motion to compel arbitration, concluding the arbitration agreement was unconscionable and therefore unenforceable. Defendant appeals.
DISCUSSION
I. Standard of Review
“Absent conflicting extrinsic evidence, the validity of an arbitration clause, including whether it is subject to revocation on unconscionability grounds, is a question of law subject to de novo review. [Citations.]” (Roman v. Superior Court (2009) 172 Cal.App.4th 1462, 1468-1469 (Roman).) Where resolution of disputed facts is required, the substantial evidence standard of review applies. (Hartnell Community College Dist. v. Superior Court (2004) 124 Cal.App.4th 1443, 1448.)
II. Existence of An Arbitration Agreement
“On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: [¶] (a) The right to compel arbitration has been waived by the petitioner; or [¶] (b) Grounds exist for the revocation of the agreement.…” (Code Civ. Proc., § 1281.2.) “[W]hen a petition to compel arbitration is filed and accompanied by prima facie evidence of a written agreement to arbitrate the controversy, the court itself must determine whether the agreement exists and, if any defense to its enforcement is raised, whether it is enforceable. Because the existence of the agreement is a statutory prerequisite to granting the petition, the petitioner bears the burden of proving its existence by a preponderance of the evidence. If the party opposing the petition raises a defense to enforcement -- either fraud in the execution voiding the agreement, or a statutory defense of waiver or revocation [citation] -- that party bears the burden of producing evidence of, and proving by a preponderance of the evidence, any fact necessary to the defense. [Citation.]” (Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 413.)
In support of its motion, defendant presented a copy of the arbitration agreement and a copy of the page initialed by plaintiff. The motion was accompanied by the declaration of Cynthia Downing, defendant’s custodian of records, who was president of defendant at the time of plaintiff’s employment. She stated that, when an employee joins defendant, the employee reviews and initials the employee manual and signs an acknowledgement of receipt of the manual. The initialed page and the signed acknowledgement are then placed in the employee’s personnel file. Downing identified exhibit A to her declaration as the page signed by plaintiff and exhibit C as the acknowledgement of receipt, both of which she obtained from plaintiff’s personnel file. She then stated: “The Employee Manual has been revised several times over the past several years. I reviewed the different revisions of the Employee Manual and matched the revision with the initialed page. Exhibit ‘B’ is a copy of the entire Employee Manual reviewed and initialed by Ms. Alexander.” In opposition, plaintiff contended she could not have signed this version of the manual because the first page of defendant’s exhibit B indicated the manual was “[u]pdated in July 2008” and plaintiff resigned in June, 2008. In reply, defendant asserted the arbitration provision was not revised during the relevant time period and pointed out that plaintiff did not deny initialing the arbitration agreement. Based on this evidence, the trial court implicitly found that the parties entered into an arbitration agreement, the terms of which were contained in the employee manual submitted as defendant’s exhibit B. Substantial evidence supports the trial court’s finding.
III. Unconscionability
“There are three steps in reviewing the validity of arbitration agreements. The first step involves identifying ‘whether the agreement implicates public or private rights.’ [Citation.]” (Fitz v. NCR Corp. (2004) 118 Cal.App.4th 702, 711 (Fitz).) Public rights include statutory rights established for a public reason, such as rights under the FEHA. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 100 (Armendariz).) They also include some nonstatutory rights, such as the right not to have one’s employment terminated in violation of public policy, which are designed to protect a public interest and cannot be contravened by a private agreement. (Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1077 (Little).) Such rights are deemed unwaivable. (Ibid.)
“The second step is to apply the enforceability standards applicable to those rights. ‘Where the plaintiff’s claims arise from unwaivable public rights, whether statutory or nonstatutory, the arbitration agreement must satisfy the minimum requirements set forth in Armendariz.’ [Citation.] ‘Where the plaintiff asserts private rights rather than (or in addition to) unwaivable public rights, the agreement to arbitrate those claims is tested only against conscionability standards.’ [Citation.] If the court finds that the arbitration provisions fail either of these standards, the third step is to determine whether the offending provisions can be excised from the agreement to arbitrate or whether the provisions so permeate the agreement as to render it void in its entirety. [Citations.]” (Fitz, supra, 118 Cal.App.4th at p. 712.)
A. Arbitration of FEHA claims
In Armendariz, the court determined that statutory claims under the FEHA are arbitrable, providing the arbitration agreement meets certain minimum requirements that permit the employee to vindicate his or her statutory rights. There, two employees sued their former employer for wrongful termination, alleging one cause of action for violation of the FEHA and three causes of action on tort and contract theories. (Armendariz, supra, 24 Cal.4th at p. 91.) They had executed arbitration agreements which required them to arbitrate claims of wrongful termination, and the defendant moved to compel arbitration. The trial court denied the motion, concluding the arbitration agreement was unconscionable. The defendant appealed. (Id. at p. 92.)
The court rejected the plaintiffs’ argument that FEHA claims are not arbitrable. It recognized that certain statutory rights cannot be waived, and “arbitration agreements that encompass unwaivable statutory rights must be subject to particular scrutiny.” (Armendariz, supra, 24 Cal.4th at p. 100.) Statutory rights “‘established for a public reason cannot be contravened by a private agreement.’” (Ibid.) This includes rights under the FEHA, which are “for a public reason” and therefore unwaivable. (Id. at pp. 100-101.) The court concluded “an arbitration agreement cannot be made to serve as a vehicle for the waiver of statutory rights created by the FEHA.… [P]arties agreeing to arbitrate statutory claims must be deemed to ‘consent to abide by the substantive and remedial provisions of the statute. [Citation.] Otherwise, a party would not be able to fully “‘vindicate [his or her] statutory cause of action in the arbitral forum.’”’ [Citation.]” (Id. at p. 101.) The court set out five minimum requirements for the lawful arbitration of nonwaivable statutory rights pursuant to a mandatory employment arbitration agreement. “Such an arbitration agreement is lawful if it ‘(1) provides for neutral arbitrators, (2) provides for more than minimal discovery, (3) requires a written award, (4) provides for all of the types of relief that would otherwise be available in court, and (5) does not require employees to pay either unreasonable costs or any arbitrators’ fees or expenses as a condition of access to the arbitration forum.’” (Id. at p. 102.)
Applying the five requirements, the court noted the requirement of neutral arbitrators was not in issue. (Armendariz, supra, 24 Cal.4th at p. 103.) The arbitration agreement did not expressly allow discovery, but the court “infer[red] that when parties agree to arbitrate statutory claims, they also implicitly agree, absent express language to the contrary, to such procedures as are necessary to vindicate that claim, ” including “discovery sufficient to adequately arbitrate their statutory claim.” (Id. at p. 106.) Thus, that requirement was met. In order to ensure adequate judicial review, “an arbitrator in a FEHA case must issue a written arbitration decision that will reveal, however briefly, the essential findings and conclusions on which the award is based.” (Armendariz, supra, 24 Cal.4th at p. 107.) The arbitration agreement did not preclude such findings “and to the extent it applies to FEHA claims the agreement must be interpreted to provide for such findings.” (Ibid.)
The agreement incorporated by reference the provisions of Code of Civil Procedure section 1280, et seq.; section 1284.2 provided that “‘each party to the arbitration shall pay his pro rata share of the expenses and fees of the neutral arbitrator, together with other expenses of the arbitration incurred or approved by the neutral arbitrator....’” (Armendariz, supra, 24 Cal.4th at p. 107.) The court concluded “that when an employer imposes mandatory arbitration as a condition of employment, the arbitration agreement or arbitration process cannot generally require the employee to bear any type of expense that the employee would not be required to bear if he or she were free to bring the action in court.” (Id. at pp. 110-111.) “[S]ection 1284.2 is a default provision, and the agreement to arbitrate a statutory claim is implicitly an agreement to abide by the substantive remedial provisions of the statute.” (Id. at p. 112.) Accordingly, the court “interpret[ed] the arbitration agreement … as providing … that the employer must bear the arbitration forum costs.” (Id. at p. 113.)
The arbitration agreement, however, limited employees to the “exclusive remedy” of lost wages from the date of discharge to the date of the arbitration award, a limitation the court found was contrary to public policy and unlawful. (Armendariz, supra, 24 Cal.4th at pp. 103-104.) Thus, only four of the five requirements for arbitrability were met.
In the present case, the arbitration agreement expressly applies to “any employment related claim, ” including claims of unlawful harassment, discrimination, and wrongful termination. Thus, it encompasses plaintiff’s claims of violation of the FEHA and wrongful termination in violation of public policy. Plaintiff asserts the arbitration agreement does not provide for neutral arbitrators. It provides: “If you and PESC are unable to agree upon a neutral arbitrator, PESC will obtain a list of five (5) arbitrators from an arbitration service. A coin toss will determine who will alternately strike names from the list until only one name remains; the remaining person shall be the arbitrator.” Plaintiff interprets this provision as permitting defendant to hand pick the list of five potential arbitrators. Consistent with Armendariz, however, we will interpret the agreement as incorporating the procedures necessary to vindicate plaintiff’s claims based on FEHA and other nonwaivable rights. We will construe it to require the arbitration service, rather than defendant, to randomly select the initial list of five potential arbitrators. The parties will then determine by a coin toss who will be first to strike a name from the list. As so construed, the arbitration agreement provides for the selection of neutral arbitrators.
The arbitration agreement provides: “You and PESC have the right to reasonable discovery at the discretion of the arbitrator and a written decision.” Plaintiff contends this provision does not meet the requirements of Armendariz, because it does not require “a written arbitration decision that will reveal, however briefly, the essential findings and conclusions on which the award is based.” (Armendariz, supra, 24 Cal.4th at p. 107.) The arbitration agreement in Armendariz did not provide for a written award at all. Nonetheless, the court held: “While such written findings and conclusions are not required under the [California Arbitration Act] (Code Civ. Proc., § 1283.4 …), nothing in the present arbitration agreement precludes such written findings, and to the extent it applies to FEHA claims the agreement must be interpreted to provide for such findings.” (Ibid.) Likewise, nothing in the arbitration agreement in defendant’s employee manual precludes requiring that the written award contain findings and conclusions, and, accordingly, to the extent it applies to FEHA and wrongful termination claims, we will construe the agreement to provide for such findings and conclusions. Thus, the arbitration agreement complies with the Armendariz requirement that it provide for a written award.
Finally, plaintiff asserts the arbitration agreement does not comply with Armendariz because “it is silent as to Plaintiff’s available remedies.” Armendariz noted “that an arbitration agreement may not limit statutorily imposed remedies.” (Armendariz, supra, 24 Cal.4th at p. 103.) “[A]n agreement to arbitrate a statutory claim implicitly incorporates ‘the substantive and remedial provisions of the statute’ so that parties to the arbitration would be able to vindicate their ‘“‘statutory cause of action in the arbitral forum.’”’ [Citation.]” (Ibid.) Thus, if the agreement is silent as to the employee’s remedies, all of the statutory remedies are available.
In Armendariz, the arbitration agreement expressly provided that the employee’s “exclusive remedies for violation of the terms, conditions or covenants of employment shall be limited to a sum equal to the wages [the employee] would have earned from the date of any discharge until the date of the arbitration award.” (Armendariz, supra, 24 Cal.4th at p. 92.) The court found the provision was unlawful because it limited the plaintiff’s statutory remedies. Here, the arbitration agreement does not limit plaintiff’s statutory remedies. It provides: “PESC is responsible for paying the cost of the arbitrator. PESC is not responsible for paying your attorney’s fees or your litigation costs unless ordered to do so by a judgment.” FEHA authorizes the court to make a discretionary award of reasonable attorney’s fees and costs to the prevailing party. (Gov. Code, § 12965, subd. (b).) The arbitration agreement does not restrict this authority; it simply advises the employee that the employer is not responsible for the employee’s attorney’s fees or costs in the absence of an order for their payment.
Thus, the arbitration agreement complies with the three requirements of Armendariz that plaintiff contends were not met. Plaintiff does not contend the arbitration agreement fails to comply with the remaining two requirements of Armendariz: that the agreement must provide for more than minimal discovery and that it must not require the employee to pay either unreasonable costs or costs that are unique to arbitration and would not be incurred by the employee if he or she litigated the dispute in court. Consequently, the trial court’s order denying arbitration cannot be justified on the ground the arbitration agreement failed to meet the requirements of Armendariz.
B. Unconscionability affecting claims of all types
An agreement to arbitrate disputes of any nature may be unenforceable if it is unconscionable. (Fittante v. Palm Springs Motors, Inc. (2003) 105 Cal.App.4th 708, 713.) An agreement to arbitrate statutory or other unwaivable rights must meet the requirements of Armendariz and conscionability in order to be enforceable. (Fitz, supra, 118 Cal.App.4th at p. 713.) Consequently, the court may deny a motion to compel arbitration of claims of any type, including wrongful termination in violation of public policy and FEHA claims, if it finds the arbitration agreement is unconscionable.
“The doctrine of unconscionability contains two components: procedural unconscionability and substantive unconscionability.” (Fitz, supra, 118 Cal.App.4th at p. 713.) Both must “‘be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability.’” (Armendariz, supra, 24 Cal.4th at p. 114.) They need not be present in the same degree; “the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” (Ibid.)
1. Procedural unconscionability
Procedural unconscionability focuses on “‘“oppression”’ or ‘“surprise”’ due to unequal bargaining power.” (Armendariz, supra, 24 Cal.4th at p. 114.) Oppression “‘arises from an inequality of bargaining power of the parties to the contract and an absence of real negotiation or a meaningful choice on the part of the weaker party. [Citations.]’ [Citation.]” (Fitz, supra, 118 Cal.App.4th at p. 721.) It “generally takes the form of an adhesion contract.” (Id. at p. 713.) An adhesion contract is one in which a party with superior bargaining strength drafts the contract and presents it to the weaker party on a take it or leave it basis. (Mercuro v. Superior Court (2002) 96 Cal.App.4th 167, 174.) “The adhesive nature of the contract will not always make it procedurally unconscionable. When bargaining power is not grossly unequal and reasonable alternatives exist, oppression typically inherent in adhesion contracts is minimal. [Citation.]” (Roman, supra, 172 Cal.App.4th at p. 1470, fn. 2.)
The surprise component of procedural unconscionability “‘“‘involves the extent to which the terms of the bargain are hidden in a “prolix printed form” drafted by a party in a superior bargaining position.’”’ [Citations.]” (Wayne v. Staples, Inc. (2006) 135 Cal.App.4th 466, 480.)
Although plaintiff argues that an arbitration agreement is procedurally unconscionable when it is offered on a take it or leave it basis, she did not submit any evidence that defendant presented the arbitration agreement to her on a take it or leave it basis. Plaintiff presented no evidence of the circumstances under which she was presented with and initialed the employee manual. She also submitted no evidence of the relative bargaining power of the parties. Thus, she did not demonstrate that the agreement was adhesive or oppressive.
Citing Gentry v. Superior Court (2007) 42 Cal.4th 443 (Gentry), plaintiff asserts the arbitration agreement is procedurally unconscionable because it did not set out the advantages and disadvantages of arbitration. In Gentry, the court found an arbitration agreement was “not entirely free from procedural unconscionability” despite its inclusion of a 30-day opt out period, because its explanation of the advantages and disadvantages of arbitration was distorted. (Id. at p. 472, fn. omitted.) The agreement described the advantages and disadvantages of arbitration generally, without focusing on the specific provisions of the agreement in issue that were disadvantageous to the employee. (Id. at p. 471.) Because of the one-sided description, employees reading the agreement might not have appreciated its unfavorable provisions and might have been discouraged from opting out by the pro-arbitration slant and the employer’s obvious preference for arbitration. (Id. at pp. 470-471.)
Neither Armendariz nor Gentry held that an arbitration agreement must contain an explanation of the advantages and disadvantages of the agreement in order to avoid procedural unconscionability. Rather, Gentry found that the explanation included in the agreement under review was misleading and caused the opt-out provision to be ineffective to counteract the “take it or leave it” nature of the agreement or to balance the unequal bargaining power of the parties. In the instant case, the arbitration agreement did not contain a misleading explanation of the advantages and disadvantages of arbitration. Thus, we need not consider the effect of such a misleading explanation on the conscionability of the arbitration agreement.
Plaintiff also argues that the agreement was procedurally unconscionable because it was “buried at the end of [the] document … after a completely unrelated section dedicated to voice mail and cell phone use.” In Kinney v. United Healthcare Services (1999) 70 Cal.App.4th 1322, the court noted that the surprise component of procedural unconscionability is found when “the terms to which the party supposedly agreed [are] hidden in a prolix printed form drafted by the party seeking to enforce them.” (Id. at p. 1329.) It found the surprise component was satisfied. The arbitration policy was contained in a handbook in a large three-ring binder, which the plaintiff was pressured to sign without having time to review it. The language of the policy was “so extensive as to render it difficult for a layperson to read and understand the parameters of the policy. This [was] particularly true regarding the unilateral nature of the arbitration obligation; after a statement of intent extolling the virtues of utilizing the arbitration process, the policy provide[d], in a fairly lengthy paragraph, that United [was] not required to pursue any claim of its own in an arbitration setting.” (Id. at p. 1330.)
In Fittante, the court concluded surprise was present. “The arbitration clause, though hidden ‘in plain sight, ’ is nonetheless hidden for purposes of this analysis. It is only one of several provisions in a dense, single-spaced page at the end of the five-page employment application. While it appears to be in bold type, so are several other provisions; the typeface is quite small, and not otherwise distinguished from any of the other provisions of the employment application. There are no headings or other obvious indications that an applicant is giving up significant legal rights.” (Fittante, supra, 105 Cal.App.4th at p. 723.)
The court in Higgins v. Superior Court (2006) 140 Cal.App.4th 1238 also found the surprise component satisfied. “[T]he arbitration provision appears in one paragraph near the end of a lengthy, single-spaced document.… [The respondents] made no effort to highlight the presence of the arbitration provision in the Agreement. It was one of 12 numbered paragraphs in a section entitled ‘MISCELLANEOUS.’ In contrast to several other paragraphs, no text in the arbitration provision is highlighted. No words are printed in bold letters or larger font; nor are they capitalized. Although petitioners were required to place their initials in boxes adjacent to six other paragraphs, no box appeared next to the arbitration provision.” (Id. at pp. 1252-1253.)
In Roman, the court concluded surprise was not demonstrated. “The arbitration provision was not buried in a lengthy employment agreement. Rather, it was contained on the last page of a seven-page employment application, underneath the heading ‘Please Read Carefully, Initial Each Paragraph and Sign Below.’ It was set forth in a separate, succinct (four-sentence) paragraph that Roman initialed, affirming she had seen it.” (Roman, supra, 172 Cal.App.4th at p. 1471.)
Here, the arbitration agreement was found at the end of a 27-page employee manual. It consists of several paragraphs in a separate section with a heading in capital letters, apparently in bold print: “BINDING ARBITRATION AGREEMENT, READ THIS SECTION CAREFULLY BEFORE YOU SIGN ACKNOWLEDGEMENT OF RECEIPT OF PESC’S EMPLOYEE MANUAL.” Although lengthy, the arbitration agreement is in straightforward language, rather than legal jargon. In the sixth paragraph, in capital letters and bold print, the agreement states: “ONLY THE ARBITRATOR, NOT A JUDGE OR JURY, WILL DECIDE THE CLAIM OR DISPUTE.” The last paragraph of the arbitration agreement appears immediately before the line plaintiff initialed, in capital letters and bold print: “THIS AGREEMENT IS A WAIVER OF ALL RIGHTS TO A CIVIL COURT ACTION FOR A DISPUTE TERMINATION, COMPENSATION DECREASE, AND/OR AN EMPLOYMENT RELATED CLAIM, INCLUDING CLAIMS FOR UNLAWFUL HARASSMENT, DISCRIMINATION OR RETALIATION ALLEGEDLY OCCURING IN THE COURSE OF OR PRIOR TO OR AFTER YOUR EMPLOYMENT; ONLY THE ARBITRATOR, NOT A JUDGE OR JURY, WILL DECIDE THE CLAIM(S) OR DISPUTE(S).”
The arbitration agreement is not “buried” at the end of the document, hidden in plain sight, or hidden in a prolix printed form. It appears in its own section, with a conspicuous heading identifying it as an arbitration agreement. Its provisions conspicuously advise that the agreement waives the right to a civil court action and twice advise that “only the arbitrator, not a judge or jury, will decide the claim or dispute.” (Capitalization omitted.) The element of surprise is not present.
Finally, citing Fitz, plaintiff contends the agreement was procedurally unconscionable because it failed to set forth the rules that would govern arbitration. Fitz, however, did not hold that an arbitration agreement is procedurally unconscionable if it does not contain the rules that will govern the arbitration. The discussion in Fitz to which plaintiff cites does not relate to unconscionability, but to whether the arbitration agreement met the Armendariz requirement that, when nonwaivable rights are involved, the arbitration agreement must provide for adequate discovery. (Fitz, supra, 118 Cal.App.4th at pp. 715-721.) The court noted that, in a prior case in which an arbitration agreement incorporated the arbitration rules of the Better Business Bureau (BBB), the court “refused to enforce the arbitration agreement because: (1) the BBB rules were not attached to the work contract, which forced the customer to go to another source to learn that the arbitration agreement curtailed his ability to receive full relief and (2) the clause failed to state whether arbitration would be conducted under the BBB’s rules as of the time of contracting or at the time of arbitration.” (Id. at p. 721.) Similarly, the arbitration agreement in Fitz incorporated the arbitration rules of the American Arbitration Association (AAA), which were not attached, so the employee was required “to go to another source in order to learn the full ramifications of the arbitration agreement.” (Ibid.)
The arbitration agreement in this case does not incorporate by reference the procedural rules of a private arbitration organization without providing easy access to those rules. Rather, it specifies that arbitration will be conducted in accordance with the state arbitration statutes (Code Civ. Proc., § 1280, et seq.). Those statutes do not “curtail [the employee’s] ability to receive full relief” (Fitz, supra, 118 Cal.App.4th at p. 721), so the employee was not required to go to another source in order to discover those limitations. We reject the suggestion that, if arbitration is to be conducted pursuant to the state arbitration statutes, those statutes must be set out verbatim in the arbitration agreement to avoid having the agreement held unconscionable and unenforceable. Plaintiff has not cited us to any case so holding. The arbitration agreement in Armendariz incorporated by reference the arbitration procedures of Code of Civil Procedure section 1280, et seq., and the court did not hold the agreement was unconscionable for that reason. (Armendariz, supra, 24 Cal.4th at p. 92.) In fact, the court concluded the arbitration agreement provided for adequate discovery by incorporating by reference the arbitration statutes, including the discovery provisions of Code of Civil Procedure section 1283.05; it did not require that the agreement set out verbatim those discovery provisions. (Armendariz, at pp. 104-106.)
Accordingly, we conclude the arbitration agreement was not procedurally unconscionable on its face, and plaintiff failed to present any extrinsic evidence to satisfy her burden of proving by a preponderance of the evidence that the arbitration agreement was procedurally unconscionable.
2. Substantive unconscionability
“Substantive unconscionability focuses on the actual terms of the agreement and evaluates whether they create ‘“‘overly harsh”’ or ‘“‘one-sided’” results’ [citations], that is, whether contractual provisions reallocate risks in an objectively unreasonable or unexpected manner.” (Roman, supra, 172 Cal.App.4th at pp. 1469-1470.) “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.’ … If the arbitration system established by the employer is indeed fair, then the employer as well as the employee should be willing to submit claims to arbitration.” (Armendariz, supra, 24 Cal.4th at pp. 117-118.) “‘[A]n arbitration agreement imposed in an adhesive context lacks basic fairness and mutuality if it requires one contracting party, but not the other, to arbitrate all claims arising out of the same transaction or occurrence or series of transactions or occurrences.’ [Citation.]” (Fitz, supra, 118 Cal.App.4th at p. 723.)
Plaintiff contends the arbitration agreement is substantively unconscionable because it requires plaintiff to arbitrate her claims against defendant, but does not require defendant to arbitrate claims against plaintiff. The agreement provides:
“You and PESC agree that any employment related claim made by you, including unlawful harassment, discrimination, wrongful termination or wrongful conduct allegedly occurring prior to, in the course of, or after your employment with PESC will be submitted to final and binding arbitration and not to any other forum.…
“If your employment is terminated, or you believe that any of your rights as an employee have been violated, and you believe that the action was wrongful, you and PESC agree to submit any dispute or claim arising out of such action (including, but not limited to, claims of unlawful harassment or discrimination based on race, sex, age, national origin, disability, or termination in violation of law or public policy) exclusively to binding arbitration before a neutral arbitrator.”
The agreement also provides:
“You and PESC agree that this arbitration shall be the exclusive means of resolving any dispute(s) arising out of the hiring process and/or arising out of termination of your employment, and/or any claim(s) such as unlawful harassment or discrimination allegedly occurring in the course of your employment.”
The first paragraph discusses only claims made by plaintiff, and requires they be submitted to binding arbitration. The second paragraph requires that “any dispute or claim arising out of” specified circumstances -- a wrongful termination or violation of the employee’s rights as an employee -- be arbitrated; it describes situations that would ordinarily result only in claims by the employee against the employer. The third paragraph also provides for arbitration of “any dispute(s) arising out of” specified situations; again, those situations generally will result in claims by the employee, rather than the employer. The agreement does not require that defendant arbitrate “any employment related claim” it may have against plaintiff. It only requires arbitration of plaintiff’s claims and specified types of claims that are more likely to belong to the employee than the employer.
“An agreement may be unfairly one-sided if it compels arbitration of the claims more likely to be brought by the weaker party but exempts from arbitration the types of claims that are more likely to be brought by the stronger party.” (Fitz, supra, 118 Cal.App.4th at p. 724.) Although the arbitration agreement does not expressly exempt from arbitration the employer’s claims or the types of claims more likely to be brought by the employer, it defines the claims subject to arbitration and, by implication, excludes other claims the parties may have against each other. Thus, it implicitly excludes the employer’s claims. Consequently, if the agreement were adhesive and the employer the stronger party, we would conclude the arbitration agreement is one-sided and lacks the mutuality necessary to avoid substantive unconscionability. As discussed previously, however, plaintiff presented no evidence of the circumstances under which the agreement was executed or of the relative bargaining strength of the parties. Because both substantive and procedural unconscionability must “‘be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability’” (Armendariz, supra, 24 Cal.4th at p. 114), we conclude the trial court erred in denying defendant’s motion to compel arbitration based on unconscionability.
IV. Untimely Motion for Reconsideration
Plaintiff contends defendant’s second motion to compel arbitration should not have been considered because it constituted an untimely motion for reconsideration unsupported by new facts, circumstances, or law. Code of Civil Procedure section 1008 governs motions for reconsideration, as well as renewed motions. It provides, in pertinent part:
“(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.
“(b) A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.” (Code Civ. Proc., § 1008, subds. (a), (b).)
Defendant’s motion was a renewal of its own motion, governed by subdivision (b). That subdivision contains no time limit for making a second motion. Consequently, defendant’s second motion was not untimely.
Defendant’s original motion was denied without prejudice. Regarding the renewal of a motion denied without prejudice, Farber v. Bay View Terrace Homeowners Assn. (2006) 141 Cal.App.4th 1007 states:
“LeFrancois v. Goel (2005) 35 Cal.4th 1094 … holds that Code of Civil Procedure section 1008 prohibits a party from filing repetitive motions for the same relief, but a court may, on its own motion, reconsider a prior interim ruling it believes to be mistaken. [Citation.] ‘[I]f the court is seriously concerned that one of its prior interim rulings might have been erroneous, and thus that it might want to reconsider that ruling on its own motion … it should inform the parties of this concern, solicit briefing, and hold a hearing.’ [Citation.]
“Here, the trial court indicated it wanted to reconsider the fee issue when it denied the first motion without prejudice, so Code of Civil Procedure section 1008 is inapplicable. Denial of a motion without prejudice impliedly invites the moving party to renew the motion at a later date, when he can correct the deficiency that led to the denial.” (Farber, supra, at p. 1015.)
The trial court denied defendant’s first motion without prejudice, on the ground the supporting papers were insufficient; a page of the arbitration agreement was missing and it was not clear the version of the employee manual submitted was the same one initialed by plaintiff. By denying the first motion without prejudice, the trial court implicitly invited defendant to correct the errors in the paperwork and renew the motion. Defendant did so and the trial court granted the renewed motion. There was no violation of Code of Civil Procedure section 1008.
DISPOSITION
The order denying defendant’s motion to compel arbitration is reversed and the matter is remanded with directions to the trial court to enter a new order granting the motion. Defendant is awarded its costs on appeal.
WE CONCUR: DETJEN, J., VORTMANN, J.
Judge of the Tulare Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.