Russo, Joel Benjamin v. Hellon, Aaron

The pertinent question, then, is whether circumstances of the contract's formation created such oppression or surprise that closer scrutiny of its overall fairness is required. [Citations.] ‘“‘Oppression occurs where a contract involves lack of negotiation and meaningful choice, surprise where the allegedly unconscionable provision is hidden within a prolix printed form.’ [Emphasis Added] Here, Plaintiff cannot legitimately argue he was surprised by the arbitration clause. The April 2 and 3, 2018 documents were 1-2 pages.

Importantly, the arbitration agreement was a primary focus of those documents. It cannot be argued that the arbitration agreements were hidden in these documents. The other documents, the 2019 and 2020 documents, were 5-6 pages. Unlike the 2018 documents, these documents covered other topics and were not focused on arbitration. However, considering the arbitration agreement appears in all 4 documents presented to Plaintiff, that fact undermines the argument Plaintiff was surprised by the existence of the arbitration provisions.

As noted, there is a degree of adhesion in every employment contract. Because the Court finds no additional element of procedural unconscionability, the Court finds a minimal level of procedural unconscionability exists.

Substantive Unconscionability Ali, supra at p.477 Substantive unconscionability examines the fairness of a contract's terms. This analysis ‘ensures that contracts, particularly contracts of adhesion, do not impose terms that have been variously described as “‘“overly harsh”’” [citation], “‘unduly oppressive’” [citation], “‘so one-sided as to “shock the conscience”’” [citation], or “unfairly one-sided” [citation]. The opposition makes 5 arguments for substantive unconscionability.

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Party Against Whom the Claim is Brought Selects the Arbitration Service As Ali notes, one sided provisions may be substantively unconscionable. We have denied motions in the past where the clause only authorized employee claims to arbitration but allowed employer claims to proceed to court. While this provision is one sided to a degree, this does not “shock the conscience”. This provision merely allows Defendant to choose the arbitration service. Simply because Defendant can choose the service does not render the process “unreasonably favorable” to Defendant. There is no evidence that any one service would be favorable to Defendant.

Requirement the Arbitrator be a Superior Court Judge Plaintiff provides conjecture, not facts or evidence that this requirement is substantively unconscionable.

Formal Procedures The Court fails to see why more formal procedures similar to court procedures would favor one party over the other.

Parties Who Are Not Parties to the Agreement The agreements explicitly include as persons subject to arbitration agents and managers of Defendant. There is no dispute that Mr. Hellon was a manager, in fact the pleading expressly alleges the same. In any event, Plaintiff does not explain why his participation in arbitration is substantively unconscionable.

Class Action Waivers Class action waivers may be enforceable, see AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333. Even if a PAGA waiver is void, the term can be severed.

In sum, the Court finds a low degree of substantive unconscionability exists, if any.

Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114: The prevailing view is that [procedural and substantive unconscionability] must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability." (Stirlen v. Supercuts, Inc., supra, 51 Cal. App. 4th at p. 1533 (Stirlen).) But they need not be present in the same degree. "Essentially a sliding scale is invoked which disregards the

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regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves." (15 Williston on Contracts (3d ed. 1972) 1763A, pp. 226-227; see also A & M Produce Co., supra, 135 Cal. App. 3d at p. 487.) In other words, 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. [Emphasis Added] Because there is only a small degree of procedural and substantive unconscionability, the motion is granted. Accordingly, the case is stayed. Defendants shall prepare and submit a form of order consistent with this ruling within 2 weeks.

9-10. 26CV01568 Burger Hut Inc v. Williams, Priscilla K et al

EVENT: (1) Demurrer of Defendants Reuben James Williams and Priscilla K. Williams to Complaint (2) Defendants’ Motion to Strike

Defendants’ request for judicial notice filed in conjunction with the moving papers is granted. Defendants’ supplemental request for judicial notice filed in conjunction with the reply is denied. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537[The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.])

Demurrer

Breach of Contract Cause of Action Defendants argue Exhibit B to the Complaint is nothing more than an offer. The Court disagrees. While the document indicates at the beginning that it is an offer, the end of the document provides signature lines for plaintiffs with the important notation “accepted by”. Defendants contend Exhibit B is unenforceable because it provides no time for performance. Civ. Code § 1657. Time of performance of contract If no time is specified for the performance of an act required to be performed, a reasonable time is allowed. If the act is in its nature capable of being done instantly— as, for example, if it consists in the payment of money only—it must be performed immediately upon the thing to be done being exactly ascertained.

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