BALTAZAR v. FOREVER 21

Respondent’s Petition for Review

Cal.January 30, 2013

sueCOURT oUVSd345 D CO 4 | [Cx% | JAN 30-2013‘eh | SL \rank A. McGuire Clerk IN THE Deputy SUPREME COURT OF CALIFORNIA MARIBEL BALTAZAR, Plaintiff, VS. FOREVER21, INC., FOREVER 21 LOGISTICS, LLC, HERBER CORLETO,and, DARLENE YU, Defendants. After a Decision By the Court of Appeal, Second Appellate District, Division One Case No. B237173 (Los Angeles County Super. Ct. No. VC059254) PETITION FOR REVIEW The Law Offices ofMark Joseph Valencia, ALC Mark Joseph Valencia, State Bar No: 239876 Izabela Cywinska Valencia, State Bar No: 287721 633 W. Sth Street, 26th Floor Los Angeles, CA 90071 Telephone: 213-627-9944; Facsimile: 213-627-9955 mvalencia@mjvattorneys.com; icywinska@mjvattorneys.com Attorneys for Plaintiff and Petitioner, Maribel Baltazar IN THE SUPREME COURTOF CALIFORNIA MARIBEL BALTAZAR, Plaintiff, VS. FOREVER21, INC., FOREVER 21 LOGISTICS, LLC, HERBER CORLETO,and, DARLENEYU, Defendants. After a Decision By the Court of Appeal, Second Appellate District, Division One Case No. B237173 (Los Angeles County Super. Ct. No. VC059254) PETITION FOR REVIEW The Law Offices of Mark Joseph Valencia, ALC Mark Joseph Valencia, State Bar No: 239876 Izabela Cywinska Valencia, State Bar No: 287721 633 W. 5th Street, 26th Floor Los Angeles, CA 90071 Telephone: 213-627-9944; Facsimile: 213-627-9955 mvalencia@mjvattorneys.com; icywinska@mjvattorneys.com Attorneys for Plaintiff and Petitioner, Maribel Baltazar TABLE OF CONTENTS Page TABLE OF AUTHORITIES..............2 0.0 ccc cece eee e cece eee eee ee ee eee ili TISSUES PRESENTED............ 00. cece eee e ence nent tte e nee anne eee enes J WHY REVIEW SHOULD BE GRANTED. .......... 0... cece ce ceee eee eens 2 PROCEDURAL BACKGROUND......... 0... cece cece cee ee eee e nena en ene ees 3 FACTUAL BACKGROUND — LAWSUIT.............0. occ eee eee eens 4 FACTUAL BACKGROUND — ARBITRATION AGREEMENT........ 4 LEGAL DISCUSSION........ 0.0... cece eee ence eee cent teen e eee e eee nies 5 I Ul. UI. THE BALTAZAR COURT CRITICIZED THE TRIVEDI COURT, AND NOW THE LAW IS UNSETTLED AS TO WHETHER ORNOT AN ARBITRATION AGREEMENT THAT ALLOWS THE PARTIES TO SEEK INJUNCTIVE RELIEF IS SUBSTANTIVELY UNCONSCIONABLE, ESPECIALLYIN LIGHT OF THE TRIVEDI COURT ASSERTING THAT EMPLOYERS ARE MUCH MORE LIKELY THAN EMPLOYEESTO SEEK SUCH RELIEF........ 10 THE BALTAZAR COURT IGNORED THE PINEDO COURT AND AS A RESULT, THERE IS NOW A CONFLICT OF LAW AS TO WHETHER OR NOT AN ARBITRATION AGREEMENT THAT ONLY LISTS EMPLOYEE-INITIATED DISPUTESIS SUBSTANTIVELY UNCONSCIONABILE....... 13 CONTRARYTO THE LITTLE COURT, THE BALTAZAR COURT FINDS THAT THERE IS NO SUNBSTANTIVE UNCONSCIONALBILITY PRESENT IN THE FOREVER 21 ARBITRATION AGREEMENT, DESPITE THE AGREEMENT REQUIRING ITS EMPLOYEES TO TAKE “ALL NECESSARY STEPS” DURING ARBITRATION TO PRESERVE THE EMPLOYER’S CONFIDENTIAL INFORMATION, THEREBY IMPOSING A ONE-SIDED OBLIGATION ON THE EMPLOYEE................2002:ceeeee eens 16 CONCLUSION... ..... 00... c ceceeecteenenn ene ene nena tees 17 CERTIFICATE OF WORD COUNT......... 0.0... cc cece eee e ence renee eens 18 il TABLE OF AUTHORITIES Page Cases Baltazar v. Forever 21, Inc. (2012) 212 CalApp.4th 221......... cece ee eee eeneee ees 2,3, 14-15 Fitz v. NCR Corp. (2004) 118 Cal.App.4" TO2Q cece cece cence cece ene eneeeeeneeenes 11,12 Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064.00.00... 00. c cece ccc cece eee cence eee ee eeeeerereees 16 Mercuro v. Superior Court (2002) 96 Cal.App.4th 167........... ccc cececcce eee eee ee eeea seen ens 11,12 Pinedo v. Premium Tobacco Stores, Inc. (2000) 85 Cal.App.4th 774.20... ...cccccccccece cnc eneeneneneees 2,3, 13-15 Trivedi v. Curexo Technology Corp. (2010) 189 Cal.App.4th 387.000.0000... cccc cece eee eeeee ee 1,2, 3, 10-13 Statutes California Code of Civil Procedure B281.8.ccccece cence eee eeeeeeateneeeeestueennenas 1,11, 12 California Government Code $12940(a)...ccc cece cence cece cence tees eee eeneeteeeetetaeeenaaeens 12 SoAL )12 iil S12940G).. cece ccc cec eee ce neces neta ene eeee ed eneeeeneneeeeneeeen ees 12 §12940(K).. 0.0e cece cece cece renee ee eee eee ee eee ee teeeeeeneeeneeeenegas 12 SI 2965(C).. cece ccc ce cece eee ene ee teen eee e eect eee eens nen ents nena sated 12 California Rules of Court Rule 8.500(b).......ccccccceseecseceuseeeessceuseceeteeececseceutsecensseeeen2 iv IN THE SUPREME COURTOF CALIFORNIA MARIBEL BALTAZAR, Plaintiff, VS. FOREVER21, INC., FOREVER 21 LOGISTICS, LLC, HERBER CORLETO,and, DARLENE YU, Defendants. PETITION FOR REVIEW ISSUES PRESENTED Does any substantive unconscionability exist in an arbitration agreement whenthe arbitration agreementallows both the employer and the employee to seek injunctive relief pursuant to California Code ofCivil Procedure §1281.8, notwithstanding the Trivedi Court holding that such agreements favor employers because employers are morelikely to seek injunctiverelief than an employee? (Trivedi v. Curexo Technology Corp., (2010) 189 Cal.App.4th 387, 397). Is an arbitration agreementinherently one-sided, and accordingly, substantively unconscionable, as stated by the Pinedo Court, whenit only enumerates employee-initiated disputes as arbitrable, and doesnotlist examples of employer-initiated disputes as arbitrable? (Pinedo v. Premium Tobacco Stores, Inc., (2000) 85 Cal.App.4th 774, 781). Doesany substantive unconscionability exist when an arbitration agreement requires both the employer and the employee to agree that the employer, not the employee, has valuable confidential information, and further requires both parties in the course of arbitration proceedings to take “all necessary steps” to protect such information from the public? WHY REVIEW SHOULD BE GRANTED The Supreme Court may order review of a Court of Appeal decision when necessary to secure uniformity of decision or to settle an important question of law. (Cal Rules of Court, Rule 8.500(b).) Here, the Court of Appeal in Baltazar, without question, criticized the Trivedi Court of Appeal; the Baltazar Court further ignored the Pinedo Court of Appeal in its legal analysis. (Baltazar v. Forever 21, Inc., (2012) 212 Cal.App.4" 221, 238; Trivedi v. Curexo Technology Corp., (2010) 189 Cal.App.4th 387, 397; Pinedo v. Premium Tobacco Stores, Inc., (2000) 85 Cal.App.4th 774, 781).) Consequently, there is now split in appellate authority in relation to determining whether or not an arbitration agreement is substantively unconscionable. Specifically, the Trivedi Court held that a provision in an arbitration agreement allowing the parties to seek injunctive relief in court, unfairly favored employers. (Trivedi v. Curexo Technology Corp., (2010) 189 Cal.App.4th 387, 397.) The Trivedi Court reasoned that it would be much morelikely that employers would benefit from this provision, as opposed to employees, since “it is far more likely that employers will invoke the court’s equitable jurisdiction in order to stop employee competition and protect intellectual property.” (Jbid.) The Baltazar Court, however, criticized the Trivedi Court, holding that even if such a provision existed in an arbitration agreement, there is still no degree of any substantive unconscionability, arguing that employees are just as likely to seek injunctive relief as employers are. (Baltazar v. Forever 21, Inc., (2012) 212 Cal.App.4" 221, 238-239.) In addition to criticizing the Trivedi Court, the Baltazar Court ignored the Pinedo Court. The Pinedo Court held that when anarbitration agreement only itemizes employee-initiated disputes as arbitrable (i.e., disputes arising from changesin position, conditions of employmentorpay, or end of employment), such an itemization is “inherently unfair” and substantively unconscionable because it specifically requires employee- initiated claims to be arbitrated. (Pinedo v. Premium Tobacco Stores, Inc., (2000) 85 Cal.App.4th 774, 781) Consequently, such an itemization leaves no doubt that such listed employee-initiated claims are arbitrable, but yet leaves ambiguity as to which specific employer-initiated claims are arbitrable, since those claims are not readily listed or enumerated. The Baltazar Court, however, ignored this rationale, and held that even if an arbitration agreement solely enumerates employee-initiated claims, there is no degree of substantive unconscionability, as long as the language preceding the enumeration stated: “including but not limited to.” (Baltazar v. Forever 21, Inc., (2012) 212 Cal.App.4" 221, 234.) This argument, however, lacks complete mutuality, because, the fact remains, employee-initiated claims are itemized, and employer-initiated claims are not itemized, leaving much room for argument by employers as to which of their claims are subject to the arbitration agreement. The impact of Baltazar will continue to perpetuate confusion amongst employers, employees, attorneys, trial courts, and appellate courts alike, and therefore, Maribel Baltazar respectfully requests the Supreme Court to grant herpetition so that authority may be uniformed. PROCEDURAL BACKGROUND On August 4, 2011, Maribel Baltazar, as Jane Doe, sued Forever 21, Inc., Forever 21 Logistics, L.L.C., Herber Corleto, Raul Martinez, and Darlene Yu. On September8, 2011, Forever 21, Inc., Forever 21 Logistics, L.L.C., Herber Corleto, and Darlene Yu filed a motion to compel arbitration. On October 7, 2011, Los Angeles Superior Court Judge Raul Sahagun denied the motion to compel arbitration holding that the arbitration agreement was both procedurally and substantively unconscionable, and therefore, unenforceable. (I CT 234-235.) Defendants, thereafter, filed a notice of appeal on November3, 2011. (I CT 236.) The Second Appellate District, Division One, reversed the trial court’s ruling on December20, 2012, finding that even thoughthe arbitration agreement was procedurally unconscionable, the arbitration agreement was not, in any way, substantively unconscionable. The Appellate Court consequently ordered the case to arbitration. FACTUAL BACKGROUND - LAWSUIT Defendant Forever 21 is an international clothing retail merchandizer. (I CT 3-4.) Plaintiff Maribel Baltazar, a woman of Mexican ancestry, was hired as an associate at Forever 21’s Distribution Warehouse, which is located in downtown Los Angeles. (/d.) As an associate in the Distribution Warehouse, Mrs. Baltazar would assist in receiving and organizing new merchandize, so that the new merchandize may be appropriately delivered to specific Forever 21 retail locations, which would then be sold to the public. (/d.) With regards to racial harassment and discrimination, Mrs. Baltazar alleges that her managers and co-employees, over the course of her employment, would often make highly inappropriate comments about her race. (I CT 5-7.) Specifically, Mrs. Baltazar alleges that her manager, Mr. Jeff Shin (“Mr. Shin”), who is of Korean descent, would often make statements to Mrs. Baltazar saying, “Korean people are better in every way,” “all Hispanics are poor and ignorant, and lack an education,” and that “Koreans are the best.” (/d.) Mrs. Baltazar further alleges that Mr. Shin would often tell Mrs. Baltazar that he “was amazed that a Hispanic girl could keep track ofall the movementin the warehouse.” (/d.) Mrs. Baltazar further alleges that Mr. Shin would randomly tell Mrs. 3 Baltazar that African Americans were “lazy,” and by way of example, explained to Mrs. Baltazar that Forever 21 had an African American employee who would often “fall asleep.” (/d.) Mrs. Baltazar, at all times, found these comments unwelcomed, highly offensive, and inflammatory. (id.) Mrs. Baltazar also alleges that her co-employee Darlene Yu (“Ms. Yu’) would also make racial remarks towards her. (I CT 7, In 9-25.) Mrs. Baltazar specifically alleges that Ms. Yu told Mrs. Baltazar that she better change the ink in the printers or that she would “kick” Mrs. Baltazar’s “ass.” Ud.) Mrs. Baltazar further alleges that Ms. Yu would refer to Mrs. Baltazar as “all you Mexicans” and complain about the way “Mexicans” write. (/d.) Mrs. Baltazar also alleges that Ms. Yu physically intimidated Mrs. Baltazar, by using her shoulder to shove Mrs. Baltazar. Ud.) In addition to the inappropriate comments and physical intimidation, Mrs. Baltazar further alleges that Hispanic associates were paid less than non- Hispanic associates. (I CT 6-7.) With regards to sexual harassment, Mrs. Baltazar alleges that defendants Mr. Corleto and Mr. Martinez, both co-employees of Mrs. Baltazar, sexually harassed Mrs. Baltazar, with the knowledge and ratification of Mrs. Baltazar’s supervisors. (I CT 4-11.) Specifically, Mrs. Baltazar alleges that Mr. Corleto would sexually harass Mrs. Baltazar by 29 66. telling her, “woman when do you want to sleep with me,” “when do you want meto sleep with you,” “you look so good,” “you have a good looking butt,” “your breasts are too big,” “your breasts are getting bigger,” [Mrs. Baltazar was pregnant when Mr. Corleto made this comment], and numerous other graphic and highly-vulgar comments that can be found in detail in Mrs. Baltazar’s complaint. [I CT 8, In.1 -9]. With regards to the sexual harassment by Raul Martinez, Mrs. Baltazar’s Forever 21 co-employee, Mrs. Baltazar asserts that he would also verbally abuse Mrs. Baltazar, by telling Mrs. Baltazar, “damn baby, are you going to let mehit it or what,” “hurry up you f—ing b—, give me my papers,” “stupid b—,” and “hey stupid b—, when will you let me hitit.”(1 CT 8, In. 18-25.) Mrs. Baltazar further asserts that Mr. Martinez further sexually harassed Mrs. Baltazar by coming behind Mrs. Baltazar, as she was bending down and drinking water from a Forever 21 drinking fountain, and rubbing his genitalia against Mrs. Baltazar’s genitalia. (I CT 9, In. 1- 9.) With regards to constructive discharge and retaliation, Mrs. Baltazar asserts that she reported the conduct of Mr. Shin, Mr. Corleto, Mr. Martinez, and Ms. Yu to Forever 21’s most senior Human Resources director, Ms. Lisa Kim (“Ms. Kim’). (I CT 10, In 5-14.) Mrs. Baltazar further asserts that Mrs. Baltazar even wrote a letter to Ms. Kim stating that a Forever 21 employee was “always touching his most intimate parts,” as well as other specific instances of harassment. (/d.) Mrs. Baltazar, in her letter to Ms. Kim, further requested that the harassment, touching, and groping stop, as Mrs. Baltazar, “can’t take it anymore.” (/d.) Mrs. Baltazar asserts that a Forever 21 Human Resources representative thereafter contacted Mrs. Baltazar, and told Mrs. Baltazar, “TI have a lot of work. There are a lot of people who have problems,” and that it would take some time for an investigation. (I CT 10.) Meanwhile during the pending investigation, Mr. Corleto and Mr. Martinez continued to sexually harass Mrs. Baltazar. (I CT 10, In 15-22.) Thereafter, Human Resources contacted Mrs. Baltazar and allegedly told her, “Nothing came up. Everyone is covering up. I guess youstill need witnesses even though you are telling the truth.” (J CT 10, In 23-26.) In January 2011, Mrs. Baltazar resigned from Forever 21. (I CT 4-10.) FACTUAL BACKGROUND — ARBITRATION AGREEMENT On November 13, 2007, Forever 21 interviewed Mrs. Baltazar Maribel Baltazar for employment. (I CT 206, In 9-20.) When Mrs. Baltazar arrived, she was greeted by a man who introduced himself as Mr. Ted Chung (“Mr. Chung”). (/d.) Mr. Chung thereafter provided Mrs. Baltazar with a comprehensive employment application, which contained numerous signature lines that were already highlighted in yellow for Mrs. Baltazar to sign. (I CT 206-219.) While filling out the application, Mrs. Baltazar noticed on pages eight and nine of the employmentapplication, that there was an “arbitration agreement.” (I CT 206, In. 21-26, 210-219.) On page nine, there was a signature block that was highlighted in yellow for Mrs. Baltazar to sign. Ud.) Mrs. Baltazar did not sign it, but instead continued filling out the rest of the employment application, and signed all other portions that were highlighted in yellow. (Jd) Mrs. Baltazar thereafter presented her employment application to Mr. Chung.(/d.) Mrs. Baltazar saw Mr. Chung sit down and review Mrs. Baltazar’s employmentapplication. (I CT 207, In. 1-16.) Mrs. Baltazar noticed that when Mr. Chung reviewed the unsigned arbitration section, Mr. Chung gave Mrs. Baltazar back her entire employment application and told her to sign the arbitration agreement. (/d.) Mrs. Baltazar specifically conveyed to Mr. Chungthat she did not want to sign the arbitration agreement. (/d.) Mr. Chung told Mrs. Baltazar that she had to sign it. Ud.) Mrs. Baltazar then shook her head without saying a word. (/d.) Mr. Chung then approached a Forever 21 manager by the name of Mr. Jeff Shin (Mr. Shin”), and they, in front of Mrs. Baltazar, conversed in Korean, which Mrs. Baltazar did not understand. (/d.) Mr. Shin then specifically told Mrs. Baltazar, “sign it or no job.” Mrs. Baltazar did not wantto sign it, but since she wasin need of a position and was in need of incomesince she had just separated from her husband (whom she later reconciled with), and had to immediately support her children, she reluctantly signed the arbitration agreement. (U/d.) After Mrs. Baltazar signed the arbitration agreement, Forever 21 immediately hired her, and she started workthat day. (/d.) Three months later in February 2008, Forever 21 tasked Mrs. Baltazar with processing new hire applications. (I CT 207, In. 17-26.) After interacting with some of the new hires, Mrs. Baltazar realized that some of the new hires exclusively spoke Spanish. (/d.) Mrs. Baltazar thereafter approached Mr. Chung andaskedif it was possible for the entire employmentapplication to be in Spanish. (U/d.) Mr. Chung informed Mrs. Baltazar that he would talk to Human Resources. (/d.) Mrs. Baltazar and Mr. Chung then discussed the necessity of the arbitration agreement and Mr. Chung informed Mrs. Baltazar that Forever 21 wants to arbitrate because it does not want to be bothered with a jury trial. Ud.) He further informed Mrs. Baltazar that “Human Resources wants everything signed.” (d.) Thereafter in June 2008, Mrs. Baltazar processed the employment application of a prospective Forever 21 employee. (I CT 208, In 1-11.) The prospective employee informed Mrs. Baltazar that she also did not want to sign the arbitration agreement. (/d.) Mrs. Baltazar and the prospective employees walked together to the main warehouse office. (/d) Mrs. Baltazar informed Mr. Chungthat the prospective employee did not want to sign the arbitration agreement. (/d.) Mr. Chung again confirmed to Mrs. Baltazar that all employees must sign the arbitration agreement. (/d.) The prospective employee then signed the arbitration agreement and departed from the main warehouse. (/d.) At this point, Mrs. Baltazar was in the office with both Mr. Jeff Shin and Mr. Chung. (/d.) Mrs. Baltazar again asked about the arbitration agreement. (/d.) Mr. Shin explained to Mrs. Baltazarthat all the employees have to sign the arbitration agreement, and then told Mrs. Baltazar, ““We Koreans have to be smart.” (/d.) With regards to the actual arbitration agreement that Mrs. Baltazar signed with Forever 21, the arbitration agreement lists only employee- initiated disputes subject to arbitration, not employer-initiated disputes. (1 CT 216.) Specifically, the arbitration agreementlists the following types of disputes, all of which are employee-initiated: “claims for wages or other compensation due; claims for breach of any employment contract or covenant (express or implied); claims for unlawful discrimination, retaliation or harassment (including, but not limited to, claims based on employment benefits (except where an Employee’s benefit or pension plan contains a claims procedure which expressly provides for a final and binding arbitration procedure different from this one)), and Disputes arising out of or relation to the termination of the employment relationship between the parties, whether based on common law or statute, regulation, or ordinance.” (1 CT 216.) Additional provisions within the arbitration agreementinclude: “Pursuant to California Code of Civil Procedure §1281.8 either party hereto may apply to a California Court for any provisional remedy, including a temporary restraining order or preliminary injunction. (I CT 216.) KR “Both parties agree that the Company has valuable trade secrets and proprietary and confidential information. Both parties agree that in the course of any arbitration proceeding all necessary steps will be taken to protect from public disclosure such trade secrets and proprietary and confidential information.” (I CT 216.) LEGAL DISCUSSION iF THE BALTAZAR COURT CRITICIZED THE TRIVEDI COURT, AND NOW THE LAW IS UNSETTLED AS TO WHETHER OR NOT AN ARBITRATION AGREEMENT THAT ALLOWS THE PARTIES TO SEEK INJUNCTIVE RELIEF IS SUBSTANTIVELY UNCONSCIONABLE, ESPECIALLY IN LIGHT OF THE TRIVEDI COURT ASSERTING’- THAT EMPLOYERS ARE MUCH MORE LIKELY THAN EMPLOYEESTO SEEK SUCH RELIEF. The Trivedi Court, in its 2010 opinion, held that the arbitration agreement at issue was both procedurally and substantively unconscionable, and therefore unenforceable. (Trivedi v. Curexo Technology Corp., (2010) 189 Cal.App.4th 387.) Particularly, the Trivedi Court noted that the arbitration agreement was substantively unconscionable becauseit included a provision allowing the parties to seek 10 injunctive relief - relief very similar in scope to California Code of Civil Procedure §1281.8. (id. at p. 396-397.) The Court reasoned that the provision in the arbitration agreement was one-sided because such a provision favored employers because employers were more likely to seek such relief. Specifically, the Trivedi Court held: “However, we are convinced bythetrial court's other observation that allowing the parties access to the courts only for injunctive relief favors Curexo, because it is ‘more likely that [Curexo], as the employer, would seek injunctiverelief.’ While the trial judge did not cite authority supporting this conclusion, it is not a novel or unsupportable proposition. This same comment was made by the Fitz court, which observed that it is far more likely that employers will invoke the court's equitable jurisdiction in order to stop employee competition or to protect intellectual property. (Fitz v. NCR Corp. (2004) 118 Cal.App.4" 702, 725.) This same point was made by the court in Mercuro v. Superior Court (2002) 96 Cal.App.4" 167, 176).” (Id. at p. 396-397.) The Baltazar Court, however, stated that it did not agree “with the analysis of mutuality in Trivedi.” (Baltazar v. Forever 21, Inc., (2012) 212 Cal.App.4” 221, 238.) The Baltazar Court, argued, that it could not say that Forever 21 is more likely to seek injunctive relief than an employee, because in the present case, Mrs. Baltazar asserts six causes of action pursuant to the Fair Employment and Housing Act (“FEHA”), which, pursuant to Cal. Govt. Code §12965(c), authorizes an employee to seek injunctive relief. (/d. at p. 239.) This argument does not distinguish between potential and actual relief that Mrs. Baltazar is seeking. It is true that Mrs. Baltazar sues for six causes of action pursuant to the FEHA, however, she does not sue for any type of injunctive relief pursuant to California Govt. Code §12965, as the Baltazar Court opines. Rather, Mrs. ll Baltazar, sues for Hostile Work Environment pursuant to Cal. Govt. Code §12940(j), Failure to Prevent Harassment pursuant to Cal. Govt. Code §12940(k), Discrimination based on Race pursuant to Cal. Govt. Code §12940(a), and Retaliation pursuant to Cal. Govt. Code §12940(h). (I CT 3- 4.) Accordingly, when the Court asserts that the injunctive relief provision in the arbitration agreement does not favor employers more so than employees, it incorrectly presumes that Mrs. Baltazar is seeking injunctive relief at the outset, when in reality, her causes of action in her complaint seek monetary relief, and she does not seek injunctive relief pursuant to Cal. Govt. Code §12965. The other arguments offered by the Baltazar court are also unavailing. The Baltazar Court states that the cases cited by the Trivedi court do not support the proposition of the Trivedi rationale — that is, the Mercuro and Fitz cases, as relied upon by the Trivedi Court, do not suggest that the incorporation of section 1281.8 into an arbitration agreement is unconscionable. (Baltazar v. Forever 21 Inc., (2012) 212 Cal.App.4th 221, 238 citing Mercuro v. Superior Court (2002) 96 Cal.App.4th 167 and Fitz v. NCR Corp. (2004) 118 Cal.App.4" 702, 709.) However, when one carefully reviews the Trivedi rationale, the Trivedi Court did not cite Mercuro and Fitz to support the argument that the insertion of California Civil Procedure §1281.8 into an arbitration agreement is unconscionable, but rather, it cited Mercuro and Fitz to support the proposition that employers are more likely to imvoke injunctive relief “in order to stop employee competition or to protect intellectual property.” (Trivedi v. Curexo Technology Corporation, supra, 189 Cal.App.4" at p. 397.) This interpretation by the Trivedi Court supports its opinion and rationale that employers are more likely to benefit from injunctive relief in an arbitration agreement. The Baltazar Court, however, fails to clash with this proposition. 12 Finally, the Baltazar court stated that “because the Agreement is subject to the CAA, not the FAA, section 1281.8 would apply even ifit were not expressly mention[ed] in the Agreement.” (Baltazar v. Forever 21 Inc., supra, 212 Cal.App.4th at p. 239.) It should be well noted that the California Arbitration Act applies only after the arbitration agreement is deemed enforceable and conscionable, hence not unconscionable. If the contract, however, is deemed unconscionable and unenforceable, the California Arbitration Act [including all of its provisions, including section 1281.8] is inapplicable since there is no enforceable arbitration agreement to begin with. Therefore, to argue, that a provision of the California Arbitration Act would apply to a conscionable and enforceable agreement, before even making a determination as to whether or not that same arbitration agreement is unconscionable, is counter-intuitive andillogical, because the inquiry is whether or not the arbitration agreement, as it is presently written, is one-sided. Accordingly, the insertion of the injunctive relief language is indeed one sided because as the Trivedi Court asserted, employers are morelikely to invoke injunctive relief than employees. il. THE BALTAZAR COURT IGNORED THE PINEDO COURT AND AS A RESULT, THERE IS NOW A CONFLICT OF LAW AS TO WHETHER OR NOT AN ARBITRATION AGREEMENT THAT ONLY LISTS EMPLOYEE-INITIATED DISPUTES IS SUBSTANTIVELY UNCONSCIONABILE. The Baltazar Court ignored the Pinedo Court, and now there is even more conflict into the assessment of whether an arbitration agreement is 13 substantively unconscionable. In Pinedo, the arbitration agreementlisted disputes subject to the arbitration as: “Any controversy or dispute arising out of or relating to this Agreement or relating to Employee’s employment by employerincluding any changes in position, conditions of employment or pay, or the end of employment thereof. . . shall be settled by arbitration. . . .” (Pinedo v. Premium Tobacco Stores, Inc., (2000) 85 Cal.App.4th 774, 775.) The Pinedo Court finding that the arbitration agreement was unconscionableruled: “The agreement is also inherently one-sided: it addresses only claims involving terms of employment described as claims based on ‘changes in position, conditions of employment or pay, or the end of employment.’ These are claims which would normally be brought by the employee against the employer. .. .” (Pinedov. Premium Tobacco Stores, Inc., supra, 85 Cal.App.4th at p. 781.) In Baltazar, the arbitration agreement only enumerated and listed disputes that were typically asserted by employees. Hence, the Forever 21 arbitration agreementread: “For purposes of this Agreement, the term ‘Disputes’ means and includes any claim or action arising out of or in any way related to the hire, employment, remuneration, separation or termination of Employee. The potential Disputes which the parties agree to arbitrate, pursuant to this Agreement, include but are not limited to: claims for wages or other compensation due; claims for breach of any employment contract or covenant (express or implied); claims for unlawful discrimination, retaliation or harassment (including, but not limited to, claims based on employment 14 benefits (except where an Employee's benefit or pension plan contains a claims procedure which expressly provides for a final and binding arbitration procedure different from this one)), and Disputes arising out of or relating to the termination of the employment relationship between the parties, whether based on common law or statute, regulation, or ordinance. (I CT 216.) If one were to assess the language in the Forever 21 arbitration agreement in light of Pinedo, one would conclude that the listing and enumeration of employee-initiated disputes is substantively unconscionable, as the Pinedo court stated that such a listing is “inherently unfair.” (Pinedo v. Premium Tobacco Stores, Inc., supra, 85 Cal.App.4th at p. 781.) The Baltazar court, however, ignored the Pinedo Court, and now, there will be confusion among appellate courts, and trial courts alike, as to whether an arbitration agreement is substantively unconscionable ifit only lists and enumerates disputes that are likely to be asserted by employees, and fails to list and enumerate disputes that are likely to be asserted by employers. It should be well noted that the Baltazar Court emphasized the “include but are not limited to” language in the Forever 21 arbitration agreement and argued that even though the enumerated claims were employee-initiated, it did not matter because all disputes were subject to the arbitration agreement. (Baltazar v. Forever 21 Inc., supra, 212 Cal.App.4th at p. 234.) The arbitration agreement in Pinedo, however,like in Forever 21’s arbitration agreement, also included similar language, that is “any controversy or dispute arising out of or relating to this Agreement or relating to Employee’s employment by employer.” (Pinedo v. Premium Tobacco Stores, Inc., supra, 85 Cal.App.4th at p. 775.) Yet, the Pinedo Court still found the language to be inherently one-sided. Accordingly, 15 Plaintiffs petition should be granted to uniform the law and to prevent future confusion by the trial and appellate courts. Il. CONTRARY TO THE LITTLE COURT, THE BALTAZAR COURT FINDS THAT THERE IS NO SUNBSTANTIVE UNCONSCIONALBILITY PRESENT IN THE FOREVER 21 ARBITRATION AGREEMENT, DESPITE THE AGREEMENT REQUIRING ITS EMPLOYEES TO TAKE “ALL NECESSARY STEPS” DURING ARBITRATION TO PRESERVE THE EMPLOYER’S CONFIDENTIAL INFORMATION, THEREBY IMPOSING A ONE-SIDED OBLIGATION ON THE EMPLOYEE. “Substantive unconscionability” refers to terms that unreasonably favor one party. (Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1071.) Substantive unconscionability exists where the terms are written to favor one party. (Jbid.) In Forever 21’s arbitration agreement, it requires the following: “Both parties agree that the Company has valuable trade secrets and proprietary and confidential information. Both parties agree that in the course of any arbitration proceeding all necessary steps will be taken to protect from public disclosure such trade secrets and proprietary and confidential information.” (1 CT 216.) In the event that Forever 21 participates in arbitration, the Forever 21 arbitration agreement forces the employee to take “all necessary steps” to 16 protect the employer’s “trade secrets and proprietary and confidential information.” (I CT 216.) This is clearly a one-sided term and solely benefits the employer. Nowhere does the Forever 21 arbitration agreement state that Forever 21 must take all necessary steps in relation to the employee's privacy and confidential information, but strictly limits it to the benefit of the employer. The Baltazar court found that the Forever 21 arbitration agreement was not substantively unconscionable in any regard, despite the Little case stating that “substantive unconscionability exists where the terms are written to favor one party.” The Baltazar Court essentially refused to abide by the standard in determining the existence of substantive unconscionability, and now accordingly, the Baltazar case, sets precedent allowing attorneys representing employers to argue that even if an arbitration agreement is one sided, it does not mean that it is substantively unconscionable. This argument will further complicate efforts by employees to prove that an arbitration agreementis substantively unconscionable, and also hinder employee-safeguards from mandatory arbitration. CONCLUSION Plaintiff Maribel Baltazar respectfully requests that this Supreme Court grant her petition so that the law in relation to substantive unconscionability may be reconciled and applied uniformly. // // // // H // 17 January 28, 2013 18 Respectfully Submitted, THE LAW OFFICES OF MARK JOSEPH VALENCIA, ALC VWfel Mark Joseph/Walencia, Esq. Attorney for Plaintiff and Petitioner, Maribel Baltazar CERTIFICATE OF WORD COUNT (Cal. Rules of Court, rule 8.204(c)(1)) The text of this brief consists of 4,403 words as counted by the Mircrosoft Word software program used to generatethisbrief. Wlfbho MarkJoseph Valencia, Esq. January 28, 2013 Attorney for Plaintiff and Petitioner, MARIBEL BALTAZAR 19 APPELLATE COURT OPINION CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATEDISTRICT MARIBEL BALTAZAR, Plaintiff and Respondent, V. FOREVER21, INC.,et al., Defendants and Appellants. DIVISION ONE B237173 (Los Angeles County Super. Ct. No. VC059254) COURT OF APPEAL - SECOND DIST. Tarr? fT Fi LIS iD HkG 202012 JOSEPH A. LANE Clerk Deputy Clerk APPEAL from an order of the Superior Court of Los Angeles County, Raul A. Sahagun, Judge. Reversed with directions. Gilbert, Kelly, Crowley & Jennett, Arthur J. McKeon II, Rebecca J. Smith and Edward E. Ward for Defendants and Appellants. Law Offices ofMark Joseph Valencia and Mark Joseph Valencia for Plaintiff and Respondent. Plaintiff filed this action against her former employer and three employees, alleging she was constructively discharged andsubjected to discrimination and harassment based on race and sex. The employer and twoofthe employees filed a motion to compelarbitration pursuant to an arbitration agreement between plaintiff and the employer. Plaintiff opposed the motion, arguing the agreement was unconscionable. The trial court ruled in plaintiff's favor and denied the motion. Defendants appealed. Weconcludethetrial court erred. Althoughthe arbitration agreement was a contract of adhesion, it was not substantively unconscionable. In particular, we do not find unconscionable a provision in the arbitration agreement allowing either party to seek provisional remedies — such as a temporary restraining order oran injunction — in court. Noris any other provision substantively unconscionable. Wetherefore reverse the order denying the motion to compelarbitration. J BACKGROUND The facts and allegationsin this appeal are taken from the complaint and the declarations and exhibits submitted in connection with the motion to compel arbitration. A. Complaint | This action was filed on August 4, 2011. The complaint alleges as follows. Plaintiff, Maribel Baltazar, is a married woman ofMexican ancestry. She began working for Forever 21, Inc. (Forever 21), as an “associate” on or about November 13, 2007. Forever2] is a clothing retail merchandiser. Plaintiff worked in the company’s distribution center in downtown Los Angeles. Thedistribution center sorted incoming clothing so it would be properly delivered to Forever 21’s retail locations. The complaint doesnot allege whether shipments fo the warehouse came from outofstate or whether deliveriesfrom the warehouseto retail locations were sent outofstate. From early 2008 through the end of 2008,oneofplaintiff's managers maderacist statements to or about her. Throughout her employment, Forever 21 discriminated against Hispanic associates by paying them less than non-Hispanic associates who were performing the same duties. When plaintiff complained about the pay disparity, her 2 superiors responded with laughter. Korean employees received prefer ential treatmentat the distribution center. Oneofplaintiff's coworkers, Darlene Yu, made racist remarksto plain tiff, threatened to “‘kick [her] ass,’” assaulted her on two occasions by “physica lly shouldering”her, and assaulted her on a third occasion by throwing an envel opethat touchedher. Plaintiff reported these events to management, but no one took any action. Plaintiff was a victim ofracial harassment throughout her employment. Beginning in April 2008, plaintiff was sexually harassed by her supervisor, Herb er Corleto. He frequently commentedon plaintiff's breasts and “butt” and askedhe rto “sleep with [him].’” Corleto also asked plaintiff if she and her husband perf ormed certain sexualacts. Oneofplaintiff's coworkers, Raul Martinez, sexually harassedplaintiff by ma king crudesexual comments about her body,staring at her breasts, and asking her w hen they were going to have sexualrelations. In June 2009, whenplaintiffwas drinking at t he water fountain and wasslightly bent down, Martinez “rubbedhis genitalia agai nst [plaintiffs] genitalia.” On another occasion in June 2009, Martinez touched plai ntiff's breasts with his knuckles. From December 2009 through around June 2010, Marti nez would often touch his genitalia in front of plaintiff and bite his lower lip. Plaint iff reported Martinez’s conduct to management and the human resources department. S he received no response. | In December 2008, plaintiff became pregnant. In February 2009, plaintiffs physician restricted her working conditions: She wasnotto lift more than 10 pounds or climb ladders orstairs. Plaintiff showed her managersa physician’s note that listed the restrictions. Plaintiffwas still required to lift merchandise exceeding 10 pounds. On one occasion shefell and injured herselfwhile carrying a bag of clothes weighing more than 10 pounds. | In March 2010,plaintiff complained to Forever 21’s senior human resources officer, Ms. Kim, about being sexually harassed. Kim told plaintiff to put her complaints in writing. Plaintiff sent Kim an e-mail, describing theacts of harassment and 3 discrimination. Thereafter, plaintiff was contacted by Mr. Paredes, who worked in th e human resources department. He delayed an investigation into plaintiff's complaint s. In May 2010, Paredesinformedplaintiff that he had completed the investigation, and “(njothing came up.” After the investigation, Corleto and Martinez continued to harass plaintiff. In January 2011, plaintiff e-mailed the human resources department and stated she was quitting “because of the harassment and discrimination.’” The departmentreplied that plaintiff should attend a meeting scheduled for January 28, 2011, at 10:00 a.m., a nd two supervisory employeesfrom the human resources department would meet with her. Plaintiff showed up for the meeting. She waited 20 minutes. Nooneelse entered the room. Plaintiff turned in her badge and resigned. The complaint contains nine causes of action, six ofthem underthe Fair Employment and Housing Act (FEHA) (Gov. Code, §§ 12900-12996): (1) hostile work environment based on racial harassment(id., § 12940, subd.(j)); (2) failure to prevent racial harassment and discrimination (id., § subd. (k)); (3) race discrimination (id., subd.(a)); (4) hostile work environment based on sexual harassment (id., subd. (j)); (5) failure to prevent sexual harassment(id., subd.(k)); and (6) retaliation (id., subd. (h)). The remaining causesof action allege a violation of the Ralph Civil Rights Act of 1976 (Civ. Code, § 51.7); constructive discharge in violation of public policy; and intentional infliction of emotional distress. Named as defendants were Forever 21, Forever 2) Logistics, LLC, Darlene Yu, Herber Corleto, and Raul Martinez. B. Motion to Compel Arbitration On September8, 2011, Forever 21, Forever 21 Logistics, LLC, Darlene Yu, and Herber Corleto (collectively defendants) filed a motion to compelarbitration of plaintiffs claims pursuant to the Federal Arbitration Act (FAA) (9 U.S.C. §§ 1-16) and the California Arbitration Act (CAA) (Code Civ. Proc., §§1280-1294.2; all undesignated section referencesare to the Code of Civil Procedure). Attached to the motion was an “Arbitration Agreement” (Agreement) dated November 13, 2007, and bearing a signature reading, “Maribel Baltazar.” In their supporting papers, defendants argued that the 4 Agreementsatisfiedthe arbitrationstandardsset forth in Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83. ‘Plaintiff filed an opposition, asserting the Agreement was unconscionable. Ina supporting declaration, plaintiff stated that on November 13, 2007, she had an interview at the Forever 21 warehouse in downtown Los Angeles. Whenshe arrived, she was greeted . by a Korean man, Mr. Chung, who introduced himself andhanded her an employment application. The application consisted of 11 pages, several ofwhich requiredplaintiffs signature at the bottom of the page. The signature lines were highlighted in yellow. Page 8 wasentitled, “AGREEMENT TO ARBITRATE.” The Agreement continued onto the ninth page, at the bottom ofwhich was a yellow highlighted signature line. Plaintiff signedall ofthe signaturelines in the application with the exception of the onefor the Agreement. She handedthe application to Chung. He reviewed the application and gave it back to her, saying she had to sign the Agreement.. Plaintiff shook her head, indicating she would not do so. Chung took the application and spoke to another Forever 21 employee, Mr. Shin. The men spoke in Korean,andplaintiff did not understand what they said. Eventually, Shin told plaintiff, “‘sign it or no job.’” Plaintiff “had no other choice but to sign the [Agreement].” After plaintiff signed the Agreement, she washired and started to work that day. The motion to compelarbitration cameon for hearing on October 7, 2011. The trial court denied the motion,stating the Agreement was unconscionable. Thetrial court found that the Agreementwas substantively unconscionable because (1) it required the arbitration of employee — but not employer — claims, (2) it gave Forever 21 the right to take “‘all necessary steps’”to protect its trade secrets or other confidential information, and (3) it mandated arbitration even if the Agreement was unenforceable. | Defendants appealed. | 0 DISCUSSION “<<“Whether an arbitration provision is unconscionableis ultimately a question of law.” ... ‘On appeal, when the extrinsic evidence is undisputed,as it is here, we review 5 the contract de novoto determine unconscionability.’” (Suh v. Superior Court (2010) 181 Cal.App.4th 1504, 1511-1512,citations omitted; accord, Mercurov. Superior Cou rt (2002) 96 Cal.App.4th 167, 174 (Mercuro).) “We interpret the Agreement. . in light of [its] plain meaning. . . . Under the plain meaningrule, courts give the wordsofthe contract . . . their usual and ordinary meaning. . . . ‘{W]e interpret the wordsin their ordinary sense, accordingto the plain meaninga layperson would attach to them.” (Valencia v. Smyth (2010) 185 Cal.App.4th 153, 162, citations omitted.) As a preliminary matter, the parties disagree as to whether the Agreement is governed by the FAA or the CAA. The Agreementis silent on the issue. (Cf. Volt Info. Sciences v. Leland Stanford Jr. U. (1989) 489 U.S. 468, 476 & fn. 5, 478-479 [109 S.Ct. 1248] [parties may adopt procedural provisions ofCAA in arbitration agreement otherwise governed by FAA]; Valenciav. Smyth, supra, 185 Cal.App.4th at pp. 173-175, 177-180 [FAA’s procedural provisions do not applyin state court unless arbitration agreement expressly adopts them].) The FAA applies to a contract “evidencing a transaction involving commerce.” (9 U.S.C.§ 2, italics added.) The United States Supreme Court has “interpreted the term “involving commerce” in the [FAA] as the functional equivalent ofthe more familiar term “affecting commerce” — wordsofart that ordinarily signal the broadest permissible | exercise of Congress’ Commerce Clause power.. . . Because the statute provides for “the enforcementofarbitration agreements within the full reach of the CommerceClause,” . . . it is perfectly clear that the [FAA] encompassesa wider range of transactions than those actually “in commerce” — thatis, “within the flow of interstate commerce,”...’... ‘Congress’ Commerce Clause power “may be exercised in individual cases without showing any specific effect uponinterstate commerce”if in the aggregate the economic activity in question would represent“a general practice . . . subject to federal control.” . . . Only that general practice need bear oninterstate commerce in a substantial way.’” (Hedges v. Carrigan (2004) 117 Cal-App.4th 578, 585-586,citations omitted.) In Woolls v. Superior Court (2005) 127 Cal.App.4th 197, the Court ofAppeal addressed whether the FAA governed a dispute between a homeowner renovating his single family home and the contractorretained to perform the work. The Court of App eal stated: “Because [the contractor] has not presented a factual record to establish [that the parties’ agreementinvolvesinterstate commerce], his reliance on Hedges v. Carrigan{, supra,] 117 Cal.App.4th 578 is misplaced. Hedges found an agreement to purchase a single family residence ‘was a contract which evidenced a transaction “involving commerce”within the meaningof [the FAA].’ . . . There, the evidence showed, *[t]he anticipated financing involved the use ofa . . . Federal Housing Administration home loan which is subject to the jurisdiction of the United States Department of Housing and Urban Development headquartered in Washington, D.C. Further, the various copyrighted forms used by the parties and their brokers could only beutilized by members of the National Association of Realtors.” ... [{] Unlike the showing made in cases such as . . . Hedges, [the contractor] has not presented anyfacts to show the instant transaction involved interstate commerce. This case is akin to Steele v. Collagen Corp. (1997) 54 Cal.App.4th 1474, 1490, wherein the party asserting [the application of the FAA] ‘madenoattempt to establish its actions’ fell within the ambit of federal law. We conclude[the contractor] failed to meet his burden ofestablishing theFAA [applies] ....” (Woolls v. Superior Court, at pp. 213-214,citations omitted; see Hoover v. American Income Life Ins. Co. (2012) 206 Cal.App.4th 1193, 1207 [party seeking to compel arbitration has burden of proving that underlying agreementinvolvesinterstate commerce]; Shepard v. Edward Mackay Enterprises, Inc. (2007) 148 Cal.App.4th 1092, 1099-1101 [discussing whether FAA applies in context of real estate transactions].) In the present case, defendants have offered no evidence showing that plaintiff's employmentor any pertinenttransaction involved interstate commerce, nor have they cited anything in the record to that effect. Instead, they contend the FAA governs an arbitration agreement unless the parties expressly “opt out” of its coverage. For that " proposition, defendants rely solely on Wolsey, Ltd. v. Foodmaker, Inc. (9th Cir. 1998) 144 F.3d 1205. But Wolsey addressed whether the termsofthe parties’ contract 7 constituted an agreementto arbitrate under the FAA. The Ninth Circuit held that the parties’ dispute resolution procedurescreated an enforceable arbitration agreement under the FAA even though the arbitrators’ decision was nonbinding. (See Wolsey, at pp. 1207 — 1209.) The Ninth Circuit then discussed whether the agreement was governedby the procedural provisions of the CAA in light of the following contractual language: “‘[T]his Agreement.. . shall be interpreted and construed under the laws of the State of California, U.S.A.” (Id. at p. 1209.) The court concludedthat California’s arbitration provisions did not apply. (Jd. at pp. 1209-1213.) That aspect of Wolsey has been rejected by our Supreme Court. (See Cronus Investments,Inc. v. Concierge Services (2005) 35 Cal.4th 376, 393, fn. 8, followed in Mastick v. TD Ameritrade, Inc. (2012) 209 Cal.App.4th 1258, 1263-1265; see also Mount Diablo Medical Center v. Health NetofCalifornia,Inc. (2002) 101 Cal.App.4th 711, 717-726 [disagreeing with Wolsey’s choice-of-law analysis]; Valencia v. Smyth, supra, 185 Cal.App.4th at pp. 173-175, 177-180 [CAA’s procedural provisions apply in state court unless arbitration agreement expressly adopts FAA’s procedural provisions].) In sum, Wolsey doesnot support the application of the FAA in this case and there is no evidencethatplaintiff's employmentor any relevant transaction involved interstate commerce. Wetherefore conclude the Agreement is governed by the CAA. On appeal, defendants contend the Agreementis not unconscionable and should be enforced. Plaintiff argues in favorofthetrial court’s ruling. We conclude the Agreement is not substantively unconscionable in any respect andreverse thetrialcourt. A. Doctrine of Unconscionability “In 1979, the Legislature enacted Civil Code section 1670.5, which codified the principle that a court can refuse to enforce an unconscionable provision in a contract. .. . As section 1670.5, subdivision (a) states: ‘If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainderofthe contract without the unconscionableclause, or it may so limit the application of any unconscionable clause as to avoid any unconscionableresult.’ Becauseunconscionability 8 is a reason for refusing to enforce contracts generally, it is also a valid reasonfor refusing to enforce an arbitration agreement under [the CAA],which ... prov ides thatarbitration agreements are ‘valid, enforceable and irrevocable, save upon such gro undsas exist for the revocation of any contract.’ The United States Supreme Court, in i nterpreting the same language foundin section 2 ofthe FAA (9 U.S.C. § 2), recognized tha t‘generally applicable contract defenses, such as fraud, duress, or unconscionability , may be applied to invalidate arbitration agreements ....’... “ _. ‘[U]nconscionability has both a “procedural” and a “substantive” eleme nt,’ the formerfocusing on “oppression”? or ‘“surprise”’ due to unequalbargain ing power, the latter on “overly harsh”or “one-sided”results.. . . “The prevailing view is that [procedural and substantive unconscionability] must both be present in ord er for a court to exercise its discretion to refuse to enforce a contract or clause under the doct rine of unconscionability.’ . . . But they need notbe present in the same degree. .. . [T]h e more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to cometo the conclusion that the term is unenforc eable, and vice versa.” (Armendariz v. Foundation Health Psychcare Services, Inc., supra , 24 Cal.4th at p. 114, citations omitted; accord, Bruni v. Didion (2008) 160 C al.App.4th 1272, 1288-1289.) “The party resisting arbitration bears the burden ofproving unconscionability.” (Pinnacle Museum TowerAssn.v. Pinnacle Market Developm ent | (US), LLC (2012) 55 Cal.4th 223, 247.) | “