Garcia v. Socal Food Group LP

The petitioner must satisfy their burden “by a preponderance of the evidence, while a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. The trial court sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination.” (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842, internal citations omitted.)

Here, Defendant satisfied its initial burden by producing a copy of the arbitration agreement signed by Plaintiff on 4/16/2025. (ROA #52 [Marquez Barrera Decl.], ¶ 10, Exh. A [Agreement].)

In opposition, Plaintiff does not dispute that he signed the agreement. Instead, he contends that he has “no recollection of ever receiving, consenting to, or specifically signing” the agreement. (ROA #63 [Garcia Decl.], ¶ 8.) However, “an individual is capable of recognizing his or her own personal signature. If the individual does not deny that the handwritten personal signature is his or her won, that person’s failure to remember signing is of little or no significance.” (Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 757; see also id. at pp. 756 [“in the absence of any evidence that their purported signatures were not their own, there was no evidence that plaintiffs did not in fact sign the agreement”], 758 [“If a party confronted with his or her handwritten signature on an arbitration agreement is unable to allege that the signature is inauthentic or forged, the fact that that person does not recall signing the agreement neither creates a factual dispute as to the signature’s authenticity nor affords an independent basis to find that a contract was not formed”].)

Plaintiff also contends that there was no mutual assent or that he did not knowingly and voluntarily sign the agreement because:

• 9. No one at SFG ever explained to me the contents or the significance of an arbitration agreement. I was never told by anyone at SFG that I was giving up my rights to bring a lawsuit in court. In fact, the term “arbitration” as related to my employment was never brought up throughout the onboarding process or at any other time during my employment with SFG.

• 10. No employee or representative of Defendant, including Ms. Marquez Barrera, told me that acknowledging or signing such an

agreement was voluntary, that I could negotiate the terms of the agreement, that I could otherwise hold off on signing the agreement until I consulted with an attorney, or that I could revoke the agreement at a later time. I was never afforded the opportunity to ask questions about the onboarding documents, much less any arbitration agreement. I recall being told that I needed to sign the onboarding documents as a condition of working for SFG and that I could not begin employment with SFG until I signed documents. I was time pressured to sign the onboarding documents and felt pressured by the SFG representative to sign the documents as quickly as possible.

(Garcia Decl., ¶¶ 9-10.)

Even when “there is no evidence to contradict these facts, typically these arguments would not be dispositive and a person would be bound by the arbitration agreement he or she had signed. No law requires that parties dealing at arm’s length have a duty to explain to each other the terms of a written contract. Further, one who accepts or signs an instrument, which on its face is a contract, is deemed to assent to all its terms, and cannot escape liability on the ground that he has not read it. If he cannot read, he should have read it read or explained to him.” (Ramos v. Westlake Services, LLC (2015) 242 Cal.App.4th 674, 686, internal quotes, brackets, & citations omitted, emphasis added.)

Moreover, “[i]n the world of paper contracting, the outward manifestation of assent to the same thing by both parties is often readily established by the offeree’s receipt of the physical contract. The general rule is that a person is bound by the printed contractual provisions of an instrument which he accepts delivery of if, as an ordinarily prudent person, he could and should have read such provisions.” (Sellers v. JustAnswer LLC (2021) 73 Cal.App.5th 444, 461, internal quotes brackets, & citation omitted, citing Cal. State Automobile Assn. Inter-Insurance Bureau v. Garret Garages, Inc. (1967) 257 Cal.App.2d 71, 76.)

In any case, Defendant also provided contrary evidence:

• 5. As part of SoCal’s onboarding process for new employees, new hires are provided an onboarding packet consisting of standard hiring documents, including, among other items, the Mutual Agreement to Arbitrate Claims. . . . After a hiring decision is made, the onboarding packet is provided for the employee to review and complete. New employees are given time to review the documents and may complete them on site or take them home and return them completed. . . .

• 7. At all times during my employment with SoCal, employees are invited to ask questions if there is anything they do not understand in

the on boarding documents or if they want to clarify any issue regarding their employment.

• 8. On or about April 16, 2025, SoCal hired Kalie Garcia . . . . Mr. Garcia spoke English well, and appeared to understand the onboarding paperwork. He spent approximately 30 minutes reviewing and completing the onboarding packet. His primary questions related to pay and hours. He was offered $20.00 per hour as a part-time employee, and he accepted. . . .

• 11. I am aware of no attempt by Mr. Garcia to ask questions regarding the arbitration agreement or to opt out during his employment. Based on my role and involvement in onboarding and recordkeeping, I would expect to be informed of any opt-out request or objection raised at the store level, and I am not aware of any such request. I am also not aware of any written modification to the arbitration agreement approved by Mr. Garcia and SoCal.

(Marquez Barrera Decl., ¶¶ 5, 7-8, 11.) But as noted above, even without contrary evidence, Plaintiff’s argument lacks merit. Plaintiff has not presented sufficient evidence to establish that Plaintiff was prevented by Defendant from asking questions or taking time to read and understand the agreement. Plaintiff has failed to establish that there was no mutual assent.

Nor is there sufficient evidence to establish fraud in the execution, as Plaintiff does not contend that Defendant affirmatively misrepresented anything about the agreement he was signing. Even if Defendant had told Plaintiff that the arbitration agreement was “unimportant, or that plaintiff[] need not read [it],” “[s]uch statements, even if falsely and fraudulently made, do not void a written contract, because it is generally unreasonable, in reliance on such assurances, to neglect to read a written agreement before signing it.

One party’s making of such an assurance does not, by itself, deprive the other party to a prospective contract of the reasonable opportunity to discover the character and essential terms of the agreement.” (Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 424.) Indeed, even “[o]ne party’s misrepresentations as to the nature or character of the writing do not negate the other party’s apparent manifestation of assent, if the second party had reasonable opportunity to know the character or essential terms of the proposed contract.

If a party, with such reasonable opportunity, fails to learn the nature of the document he or she signs, such negligence precludes a finding the contract is void for fraud in the execution. [¶] It follows that one party’s unreasonable reliance on the other’s misrepresentations, resulting in a failure to read a written agreement before signing it, is an insufficient basis, under the doctrine of

fraud in the execution, for permitting that party to avoid an arbitration agreement contained in the contract.” (Id. at p. 423.)

Therefore, the Court finds that the arbitration agreement exists between the parties.

FAA Governs Plaintiff also disputes that the FAA applies to this arbitration agreement because Defendant has not adequately shown that the agreement “evidenc[es] a transaction involving commerce.” (9 U.S.C. § 2.).

However, the agreement itself provides that “the Federal Arbitration Act shall govern the interpretation, enforcement and all proceedings pursuant to this Agreement.” (Agreement, p. 1.) This is a commonly acceptable and enforceable provision in an arbitration agreement. (See Volt Information Sciences, Inc. v. Bd. of Trustees of Leland Stanford Junior University (1989) 489 U.S. 468, 479 [“parties are generally free to structure their arbitration agreements as they see fit,” including by agreement to arbitration under the FAA]; Barrera v. Apple v. American Group LLC (2023) 95 Cal.App.5th 63, 76 [“since arbitration is a matter of contract, the FAA also applies if it is so stated in the agreement”].)

Therefore, the FAA governs this agreement.

Delegation Clause Defendant’s moving paper does not argue that this Court cannot decide threshold questions of the enforceability of the agreement or arbitrability of the parties’ claims. (See ROA #48 [Mot. P&A], pp. 8-9 [simply contending to this Court that Plaintiff’s claim fall[s] squarely within the scope of the Agreement” and that the Court should enforce the agreement].)

Nevertheless, in opposition, Plaintiff contends that the agreement does not contain a clear and unmistakable delegation clause. (ROA #67 [Opp.], pp. 12-13.) it is unclear why Plaintiff made this argument in the first place, as Defendant did not contend that the Court should not decide enforceability or arbitrability.

In reply, however, Defendant contends that the agreement does contain a clear and unmistakable delegation clause and that “issues of arbitrability and the interpretation of the Agreement are left to the arbitrator, not the Court.” (Reply at p. 11.)

“Under the Federal Arbitration Act (FAA), the enforceability of an arbitration agreement is ordinarily to be determined by the court. The parties may agree in the arbitration provision, however, that the enforceability issue will be delegated to the arbitrator.” (Ajamian v. CantorCO2d, L.P. (2012) 203 Cal.App.4th 771, 781, internal citations omitted, citing AT&T Technologies v. Communications Workers (1986) 475 U.S. 643, 649.) “To establish this exception, it must be shown by ‘clear and unmistakable’ evidence that the parties intended to delegate the issue to the

arbitrator.” (Id.) “The “clear and unmistakable” test reflects a ‘heightened standard’ of proof.” (Id. at p. 782.) “That is because the question of who would decide the unconscionability of an arbitration provision is not one that the parties would likely focus upon in contracting, and the default expectancy is that the court would decide the matter. Thus, the Supreme Court has decreed, a contract’s silence or ambiguity about the arbitrator’s power in this regard cannot satisfy the clear and unmistakable evidence standard.” (Id., internal citations omitted, citing First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 943-945.)

Here, the arbitration agreement states: “If there is a dispute as to whether a claim is subject to arbitration, or regarding interpretation of this Agreement, the Arbitrator will decide such issue.” (Agreement at p. 3, ¶ 4.)

The Court finds that this delegation clause does not clearly and unmistakably delegate to the arbitrator questions about the “enforceability” of the agreement, as the agreement does not explicitly include “enforceability” as among the issues delegated to the arbitrator. (Cf. B.D. v. Blizzard Entertainment (2022) 76 Cal.App.5th 931, 957 [finding questions regarding enforceability delegated to arbitrator where arbitration provision uses word “enforceability” in delegation clause]; Aanderud v. Super. Ct. (2017) 13 Cal.App.5th 880, 892 [same].)

Therefore, the Court may and will determine the enforceability of the parties’ arbitration agreement.

Unconscionability The remainder of Plaintiff’s arguments go to whether the agreement is enforceable due to unconscionability.

Unconscionability has both a procedural and a substantive element: The procedural element focuses on the existence of “oppression or surprise due to unequal bargaining power,” and the substantive element focuses on “overly harsh or one-sided results.” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114, internal quotes omitted.) For unconscionability to render an agreement or clause unenforceable, both procedural and substantive unconscionability must be present—but “they need not be present in the same degree.” (Id.) A “sliding scale” applies such that “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.” (Id.)

The party opposing arbitration bears the burden of proving an unconscionability defense. (Prima Donna Development Corp. v. Wells Fargo Bank, N.A. (2019) 42 Cal.App.5th 22, 42.)

A. Procedural Unconscionability “Procedural unconscionability concerns the manner in which the contract was negotiated and the circumstances of the parties at that time. It focuses on the factors of oppression and surprise. The oppression component 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.” (Kinney v. United HealthCare Services, Inc. (1999) 70 Cal.App.4th 1322, 1329, internal quotes & citations omitted.) “‘Surprise’ involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in a prolix printed form drafted by the party seeking to enforce the disputed terms.” (A & M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 486.)

1. Contract of Adhesion Plaintiff contends that the instant agreement is an adhesion contract because it was drafted by Defendant, presented on a preprinted form with no blanks for negotiated terms, and offered to Plaintiff on a take-it-or-leave-it basis as part of onboarding paperwork that had to be completed before he could begin working. (Opp. at p. 6.)

Where an arbitration agreement is “imposed on employees as a condition of employment and there was no opportunity to negotiate,” there is “little dispute” that the arbitration agreement is “adhesive.” (Armendariz, supra, 24 Cal.4th at pp. 114-115; see also id. at p. 113 [defining “contract of adhesion” as “a standardized contract, which[is] imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it”].)

Here, Defendant also contends that “Mr. Garcia’s acceptance of the agreement was voluntary, and was not mandatory for hire.” (Marquez Barrera Decl., ¶ 14.) Indeed, the agreement itself includes a ¶ 8 titled “Voluntary Agreement” that states in all caps:

I acknowldege [sic] that I have carefully read this agreement, that I understsand [sic] its terms, that all understandings and Agreements between SFG and me relating to the subjects covered in the agreement are contained in it, and that I have entered into this agreement voluntarily and not in reliance on any promises or representations by the company other than those contained in this agreement itself.

I understand that by signing this agreement I am giving up my right to a jury trial.

I further acknowledge that I have been given the opportunity to discuss this agreement with my private legal counsel and have availed myself of that opportunity to the extent I wish to do so.

(Agreement, pp. 3-4, ¶ 8, capitalization omitted, underlining original.)

However, as Defendant also acknowledges, “the onboarding packet is provided for the employee to review and complete,” and “[a]s a standard practice, employees are not scheduled to begin work unless and until the required onboarding documents are completed and signed.” (Marquez Barrera Decl., ¶¶ 5-6.) Moreover, Plaintiff attests that he “recall[s] being

told that [he] needed to sign the onboarding documents as a condition of working for SFG and that [he] could not begin employment with SFG until [he] signed documents.” (Garcia Decl., ¶ 10.)

The Court finds that in light of this evidence, the agreement is adhesive because Plaintiff was not given any opportunity to negotiate the terms and was given the agreement on a take-it-or-leave-it basis.

In any case, “the adhesive nature of a contract is one factor the courts may consider in determining the degree of procedural unconscionability.” (Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 84, fn. 4.) Moreover, the “adhesive aspect of an agreement is not dispositive,” as overall enforceability still depends on the “sliding scale” analysis of procedural and substantive unconscionability. (Serpa v. Cal. Surety Investigations, Inc. (2013) 215 Cal.App.4th 695, 704; see also Graham v. Scissor-Tail, Inc. (1981) 28 Cal.3d 807, 817 [contracts of adhesion are “an inevitable fact of life for all citizens”].)

Therefore, Plaintiff has shown a minimal degree of procedural unconscionability due to the adhesive nature of the agreement.

2. Surprise Surprise occurs when “the allegedly unconscionable provision is hidden within a prolix printed form.” (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 126, internal quotes omitted.)

Here, Plaintiff contends that there was surprise because he was not informed of the terms or significance of the arbitration agreement, and the agreement was among the “stack” of onboarding documents he had to review and sign. (Opp. at p. 6.)

However, there is insufficient evidence to establish how many documents Plaintiff was required to review as part of the onboarding materials. Moreover, the parties do not dispute that the arbitration agreement was a standalone, 4-page document clearly labeled “Mutual Agreement to Arbitrate Claims” in bold. (Agreement, p. 1, bolding omitted.)

Under these facts, the Court does not find that the agreement is procedurally unconscionable due to surprise.

B. Substantive Unconscionability “Substantive unconscionability pertains to the fairness of an agreement’s actual terms and to assessments of whether they are overly harsh or onesided.” (Hayden v. Elegance at Dublin (2023) 97 Cal.App.5th 1280, 1287, internal quotes omitted.) “[T]he central idea [is] that unconscionability doctrine is concerned not with a simple old-fashioned bad bargain, but with terms that are unreasonably favorable to the more powerful party.” (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 910-911, internal quotes & citations omitted [also confirming that “overly harsh,” “unduly oppressive,” “so one-sided as to shock the conscience,” and “unfairly one

sided” all point to this same “central idea”].) Unconscionable terms include those that “contravene the public interest or public policy” or “terms . . . that attempt to alter in an impermissible manner fundamental duties otherwise imposed by the law.” (Id. at p. 911.) “[W]here no meaningful choice was exercised upon entering the contract, the test is whether the terms are so extreme as to appear unconscionable according to the mores and business practices of the time and place.” (Id. at p. 912, internal quotes omitted.)

Plaintiff contends that the subject arbitration agreement is substantively unconscionable because it is overbroad in scope. This argument has merit.

The agreement provides, in relevant part, in ¶ 1, “Claims Covered by the Agreement”:

SFG and I mutually consent to the resolution by arbitration of all claims or controversies (‘claims’), past, present, or future, whether or not arising out of my affiliation with SFG (or its termination), that SFG may have against me or that I may have against SFG or against its officers, directors, partners, employees or agents in their capacity as such or otherwise. The claims covered by this Agreement include, but are not limited to, claims for wages or other compensation due; claims for breach of any contract or covenant (express or implies); tort claims; claims for discrimination (including, but not limited to, race, sex, sexual orientation, religion, national origin, age, marital status or medical condition, handicap or disability); claims for benefits; and claims for violation of any federal, state, or other governmental law statue, regulation, or ordinance, except claims excluded elsewhere in this Agreement.

(Agreement, p. 1, ¶ 1, underlining original, bolding of each instance of “SFG” omitted, other bolding & italics added.)

In Cook v. University of Southern California (2024) 102 Cal.App.5th 312, 321-325, similar provisions were held to be unconscionably overbroad in scope. (See also Stoker v. Blue Origin, LLC (2026) 120 Cal.App.5th 91, 107-108 [same].)

While the Cook court “recognize[d] that employment contracts can provide a ‘margin of safety’ that grants extra protection to the party with superior bargaining power if there is a legitimate commercial need for doing so,” it also held that “the ‘business realities’ that give rise to that special need [must be] explained in the contract itself [or] must be factually established.” (Cook, supra, at p. 324.) Here, the 2023 Agreement itself offers no legitimate commercial need for such broad coverage. Nor has Defendant offered any evidence on this point.

Defendant contends that Cook is distinguishable because “USC was and is a massive enterprise,” such that “[i]f the plaintiff in Cook was injured at a USC football game at the Coliseum, had malpractice case at Arcadia Hospital, or had a fraud case with USC credit union, all of these claims would be covered by the arbitration agreement.” (ROA #69 [Reply], p. 8.) Defendant contends that “[i]n comparison, Defendant is a small regional

chain of Del Taco franchises. Plaintiff would have no viable business relationship with Defendant apart from possibly patronizing one of its stores, which he has not indicated any intention to ever do. Defendant’s operations are small and specific, and not remotely comparable to USC.” (Id.) In support, Defendant quotes the following passage from Ayala-Ventura v. Superior Court (2026) 119 Cal.App.5th 241:

The agreement in Cook was unconscionable in part because of the multifarious ways in which a claim against USC “completely unrelated to [Cook’s] employment” could arise. (Cook, at 318.) As an example, the trial court observed that if Cook were to undergo a botched surgery at USC’s hospital in 15 years, her claims would still be subject to arbitration. (Ibid.) Given CCS solely provides commercial janitorial services, we are hard-pressed to discern how a similarly vast range of claims completely unrelated to Ayala- Ventura’s employment could arise, nor does Ayala-Ventura offer a similar panoply of potential claims she might assert. The Agreement’s scope is not unconscionably broad under the circumstances in this case.

(Reply at p. 8.)

But here, Defendant is “a Del Tacho franchisee” that “operates 39 Del Taco restaurants throughout California.” (Marquez Barrera Decl., ¶¶ 2-3.) As Defendant acknowledges in its reply, Plaintiff could patronize one of its many stores and be injured such that Plaintiff would have tort and other types of non-employment claims against Defendant that would be compelled to arbitration by the plain terms of ¶ 1 of the agreement. Given that Defendant operates a public-facing and -serving business with numerous locations, such operations create much more realistic possibilities for future tort or non-employment claims that have nothing to do with Plaintiff’s employment than in Ayala-Ventura where the defendant-employer was a commercial janitorial services company.

Therefore, Cook is directly applicable, while Ayala-Ventura is distinguishable, and the agreement here is overbroad in scope.

The Court also finds that the agreement’s duration is overbroad because it is infinite. The agreement not only explicitly states that it applies to all “future” claims, but it also explicitly states that “[t]his Agreement to arbitrate shall survive the termination of my employment and the expiration of any benefit plan.” (Agreement, ¶¶ 1, 5.) Indefinite duration was also found to be substantively unconscionable under similar circumstances in Cook. (Cook, supra, 102 Cal.App.5th at pp. 325-326.)

Moreover, as worded, the agreement also requires Plaintiff to arbitrate his claims—including claims that have nothing to do with Plaintiff’s “affiliation with SFG”—against third parties, including Defendant’s “partners, employees, or agents”, while those same parties are not bound by the agreement to arbitrate any claims they may have against Plaintiff. (Id.) In Cook, the court found similar terms to lack mutuality. (Cook, supra, 102 Cal.App.5th at pp. 326-328.) The Cook court explicitly noted that “[t]he

concern here is not that the arbitration agreement provides ancillary benefits to third parties. The concern is that the agreement provides benefits to broad swaths of third party beneficiaries only in favor of USC without any showing of justification for this one-sided treatment.” (Id. at p. 327.) Specifically, the Cook court noted that “[n]o explanation is offered as to why Cook should be required to give up the ability to ever bring claims in court against a USC employee that are unrelated to USC or her employment there.” (Id. at p. 327.) The same is true here.

Defendant further contends that Cook is distinguishable because “the USC agreement was expressly required for hire.” (Reply at p. 9.) While in its recitation of facts, the Cook court noted that “Cook’s employment offer was contingent upon Plaintiff executing an employment agreement and arbitration agreement” (Cook, supra, 102 Cal.App.5th at p. 317), the Cook court’s analysis of the substantive unconscionability of the agreement’s terms did not rely on the agreement’s requirement for hire. Moreover, as the Court already found, the instant agreement was adhesive in nature given the evidence presented by both sides.

The Court also agrees with Plaintiff that “the wholesale PAGA waiver . . . is unlawful.” (Opp. at p. 8.) In ¶ 2 of the agreement, the agreement provides:

Both SFG and I agree that neither of us shall initiate, prosecute or participate in any class-action lawsuit, arbitration or proceeding or any action or proceeding under the California Private Attorneys General Act of 2004 or any similar law providing for a right of action by an employee on behalf of the State or on behalf of other current or former employees in any way related to any claim covered by this Agreement. Both SFG and I agree to waive any right that either of us may have to initiate, prosecute or participate in a class action lawsuit, arbitration or proceeding or any action or proceeding under the California Private Attorneys General Act of 2004 or any similar law providing for a right of action by an employee on behalf of the State or on behalf of other current or former employees in any way related to any claim covered by this Agreement.

(Agreement, ¶ 2, bolding of “SFG” throughout omitted.) It is true that an arbitration agreement’s waiver of an employee’s representative PAGA claim remains unenforceable under Iskanian v. CLS Transportation Los Angeles (2014) 59 Cal.4th 348, 359-360 and Viking River Cruises, Inc. v. Morian (2022) 596 U.S. 639, 662. (Mills v. Facility Solutions Group, Inc. (2022) 84 Cal.App.5th 1035, 1062-1063.)

The Court does, however, reject Plaintiff’s other arguments on substantive unconscionability.

First, Plaintiff contends that the “modification provision” of the agreement lacks mutuality. (Opp. at pp. 7-8.) That provision, found in ¶ 5 under “Requirements for Modification or Revocation,” merely states that the agreement “can only be revoked or modified by a writing signed by me and by the President or Vice President of SFG.” (Agreement, p. 3, ¶ 5, bolding

omitted.) As this provision explicitly requires both parties to agree to any revocation or modification, Plaintiff’s argument lacks merit.

Second, Plaintiff also contends that the agreement’s inclusion of a wholesale waiver of class actions is substantive unconscionable. (Opp. at p. 8.) However, under the FAA, class action waivers are enforceable. (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 352.) Plaintiff cites no authority to the contrary, and Ramirez v. Charter Communications, Inc. (2024) 16 Cal.5th 478 does not hold or suggest otherwise.

In sum, the Court finds that the parties’ arbitration agreement is substantively unconscionable because of its overbroad scope, duration, lack of mutuality with respect to third-party claims, and inclusion of a waiver of Plaintiff’s right to bring representative PAGA claims.

Severance Accordingly, the remaining issue is whether the unconscionable provisions of the parties’ arbitration agreement may be severed.

The agreement itself provides in ¶ 6 that “[i]f any portion of this Agreement is adjudged to be void or otherwise unenforceable, in whole or in part, such adjudication shall not affect the validity of the remained [sic] of the Agreement.” (Agreement, ¶ 6; see also Roman v. Super. Ct. (2009) 172 Cal.App.4th 1462, 1477-1478, quoting Armendariz, supra, 24 Cal.4th at p. 122 [“the strong legislative and judicial preference is to sever the offending term and enforce the balance of the agreement: Although ‘the statute appears to give a trial court some discretion as to whether to sever or restrict the unconscionable provision or whether to refuse to enforce the entire agreement[,] . . . it also appears to contemplate the latter course only when an agreement is “permeated” by unconscionability’”].)

There are “no bright line rules” requiring courts to refuse enforcement of the agreement or to sever or restrict an unconscionable term depending on the number of unconscionable terms. (Ramirez v. Charter Communications, Inc. (2024) 16 Cal.5th 478, 516.) Instead, in determining whether severance is appropriate or even possible, “[c]ourts are to look to the various purposes of the contract. If the central purpose of the contract is tainted with illegality, then the contract as a whole cannot be enforced. If the illegality is collateral to the main purpose of the contract, and the illegal provision can be extirpated from the contract by means of severance or restriction, then such severance and restriction are appropriate.” (Armendariz, supra, 24 Cal.4th at p. 124.)

Here, Plaintiff contends that the agreement is so permeated with illegality that it cannot be saved by severance and should not be enforced. (Opp. at pp. 14-15.) The Court agrees based upon the agreement’s substantively unconscionable scope, duration, and lack of mutuality with respect to thirdparty claims. The Court also finds that the illegality taints the central purpose of the contract—i.e., arbitration—such that the contract as a whole cannot be enforced.

Notably, Defendant does not address this argument in its reply. At most, Defendant contends that “[w]hile Defendant acknowledges that the PAGA bar is unenforceable, it is the only substantive unfair provision, and therefore it can easily be severed from the Agreement.” (Reply at p. 13.) While the Court agrees that the waiver of Plaintiff’s right to bring representative PAGA claims could be severed, that does not address how the remaining unconscionable terms permeate the agreement’s central purpose.

Moreover, Defendant’s failure to address the severability issue more broadly— including whether the agreement may be enforced as a whole when its arbitration provisions’ scope, duration, and lack of mutuality are found unconscionable, and whether such provisions are part of the central purpose of the contract or collateral such that the agreement as a whole may be saved through severance—constitutes a concession on these points. (DuPont Merck Pharmaceutical Co. v. Super. Ct. (2000) 78 Cal.App.4th 562, 566 [“By failing to argue the contrary, plaintiffs concede this issue”].)

In sum, the Court finds that the agreement contains both elements of procedural and substantive unconscionability, and since the unconscionability permeates the central purpose of the agreement, the Court exercises its discretion to refuse to enforce the agreement as a whole.

Accordingly, Defendant’s motion to compel arbitration is DENIED.

Moving party shall give notice. 112 Harmon vs. Wescom Central Credit Union

2025-01528737 Motion to Compel Arbitration

Defendant Wescom Central Credit Union’s Motion to Compel Arbitration is DENIED.

Defendant’s motion seeks “an order compelling the complaint of Plaintiff ERICK HARMON (‘Plaintiff’) to binding arbitration and staying all superior court proceedings in this matter until the completion of the arbitration.” (ROA #18, p. 1.)

Plaintiff does not dispute that the subject arbitration agreement is governed by the Federal Arbitration Act (FAA) and that he has refused arbitration. Instead, Plaintiff disputes the existence of the agreement and contends that the agreement is unenforceable because it is unconscionable and cannot be saved by severance. (ROA #29 [Opp.], passim.)

Procedural Issues As an initial matter, the Court notes after filing and serving its initial moving papers including a supporting declaration by Pamela Escobar on 3/17/2026 (ROA #16, 18), Defendant thereafter on 7/13/2026 filed and served another supporting declaration by Jennifer A. Morin (ROA #27, Exh. AA [Morin Decl.]). The 7/13/2026 declaration was still timely filed and served pursuant to Code of Civil Procedure (CCP) section 1005, subdivision (b). Therefore, the Court may properly consider Morin’s declaration.

Defendant’s initial moving papers relied exclusively on a 2023 arbitration agreement between the parties, as that was also the only agreement attached