BEASLEY v. SELENE FINANCE, L.P., et al.

distinction is unavailing. The agreement allows for disclosure on a court order but the requirement of seeking a court order concerning an arbitration that is supposed to have its very existence kept secret still restricts informal information gathering and enables elder abusers to more easily reoffend. (Haydon at p. 1290 [reasons confidentiality unconscionable in elder abuse arbitration].)

The instant case does not feature every unconscionable term seen in Haydon, however. Haydon finds unconscionable an arbitration agreement’s provision that each side will pay its own costs and fees, another factor present in the agreement before this court. (Haydon, supra, 97 Cal.App.5th at p. 1291.) Further, Bickel v. Sunrise Assisted Living (2012) 206 Cal.App.4th 1, 10-13 (Bickel) states that a provision in an arbitration agreement holding that both sides will bear their own fees and costs in an elder abuse case is functionally an unenforceable and unconscionable waiver of the right to recover attorneys’ fees in elder abuse cases.

However, Haydon hinged its finding that the fees and costs provision was unconscionable as applied on evidence presented that JAMS charges high amounts for its services and the plaintiff had severely restricted income and limited assets. Plaintiffs here do not present such evidence. As for Bickel, that provision flatly stated that the parties would bear their own expenses while the provision before the court now says they will do so “unless otherwise provided by law,” thus allowing for recovery of attorneys’ fees on an elder abuse claim per the law.

In summary, the arbitration agreement under analysis features some procedural unconscionability matching some factors identified in Dougherty. The arbitration agreement also features a high degree of substantive unconscionability matching many of the most serious factors identified in Lopez and Haydon. There is sufficient procedural unconscionability paired with very significant substantive unconscionability such that the arbitration agreement is unenforceable as a whole. The court finds severance is not appropriate in these circumstances because the agreement is permeated with unconscionable purpose. (Dougherty, supra, 47 Cal.App.5th at p. 107.)

Conclusion. Moving Defendants’ motion to compel arbitration is denied.

BEASLEY v. SELENE FINANCE, L.P., et al. Case No. cu26-03170

Demurrer by Defendant MOREHOUSE HOMES, INC. to Plaintiff’s Complaint