Castro, Shantal A vs. Tractor Supply Company of Utah. LLC et al

Further, Defendants provide the declaration of the senior manager of human resources technology platforms who confirms the above and adds that on September 30, 2022, Plaintiff completed review of the ADRA, clicked on the "Agree" button which generated a "Certificate of Completion" for the ADRA. (Declaration of Angel P.P.1-12; Ex. 4.) In opposition, Plaintiff does not dispute reviewing the employee handbook, the updated employee handbook and signing the ADRA.

Authority and Analysis - Agreement to Arbitrate

"On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement." (Code Civ. Proc. Sec. 1281.2(a), (b).) (emphasis added.)

The motion to compel arbitration requires the facts are to be proven by affidavit or declaration and documentary evidence with oral testimony taken only in the court's discretion. (Code Civ. Proc., Sec.1290.2; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413-414.) The motion must set forth the provisions of the written agreement and the arbitration clause verbatim, or such provisions must be attached and incorporated by reference. (Cal. Rules of Court, rule 3.1330; see Condee v. Longwood Mgmt. Corp. (2001) 88 Cal.App.4th 215, 218.) Absent a challenge by the nonmoving party, this burden is met by simply providing a copy of the arbitration agreement. (Baker v. Italian Maple Holdings, LLC (2017) 13 Cal. App. 5th 1152, 1160; Cal. Rules of Court, rule 3.1330.)

"For purposes of a petition to compel arbitration, it is not necessary to follow the normal procedures of document authentication." (Condee, supra, 88 Cal.App.4th at 218; Sprunk v. Prisma LLC (2017) 14 Cal.App.5th 785, 793.) However, when the opposing party disputes the agreement, then the opposing party must provide evidence to challenge its authenticity. (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165.) Under California law, "[t]he burden of persuasion is always on the moving party to prove the existence of an arbitration agreement with the opposing party by a preponderance of the evidence ...." (Gamboa, supra, 72 Cal.App.5th at 164-165.) "However, the burden of production may shift in a three-step process." (Gamboa, supra, 72 Cal.App.5th at. 165.) "First, the moving party bears the burden of producing 'prima facie evidence of a written agreement to arbitrate the controversy.' [Citation.]" (Gamboa, supra, 72 Cal.App.5th at p. 165.) "The moving party 'can meet its initial burden by attaching to the [motion or] petition a copy of the arbitration agreement purporting to bear the [opposing party's] signature.' [Citation.]" (Id.) "For this step, 'it is not necessary to follow the normal procedures of document authentication.' [Citation.]" (Id.)

Here, Defendant has provided the ADRA it submits was electronically executed by Plaintiff in September 2022 in satisfaction of this initial burden. As noted above, Plaintiff does not dispute executing the ADRA. As such, the Court finds an agreement to arbitrate.

Facts - Scope of Agreement

The Agreement states it applies to claims for: "...all legal disputes or claims pertaining to Individual's employment or other relationship with the Company (including application for or termination of employment or other relationship or any background check process); wages, overtime, or other compensation; working conditions; independent contractor or overtime exemption status; discrimination, harassment, or retaliation; civil penalties arising from any legal violations that Individual personally suffered; breach of express or implied contract or fiduciary duty; negligence or other tort; or violation of any federal, state, or local law."

The Agreement excludes: "(a) constituting sexual harassment or sexual assault disputes as defined by the Federal Arbitration Act ("FAA"); (b) by Individual for workers' compensation benefits (although retaliation claims are covered by this MAA), unemployment benefits, or benefits under a plan or collective bargaining agreement that provides its own process for dispute resolution; (c) by either party seeking only a provisional remedy in any court of competent jurisdiction, including on the ground that any arbitration award to which the applicant for such relief may be entitled may be rendered ineffectual without provisional relief; (d) for which this MAA would be invalid or prohibited under federal law, or state or local law that is not preempted by federal law; (but if such a non-arbitrable claim subsequently becomes arbitrable while the claim is pending, it then shall be subject to this MAA); (e) to enforce this MAA, compel arbitration, or enforce, modify, or vacate an arbitrator's award1; (f) filed by Individual or on behalf of Individual in a class or collective action, prior to Individual's execution or deemed acceptance of these ADR Agreements as provided herein; or (g) filed with a federal, state, or local administrative agency such as the Equal Employment Opportunity Commission, National Labor Relations Board, or similar agency..."

Authority and Analysis - Scope of Agreement

The Agreement's scope expressly covers wage and hour violations, as well as the Business and Professions Code.

Facts - FAA Application

The Agreement states, as footnote 1: "The parties agree and stipulate that such actions and this MAA are governed by the FAA and not any state arbitration law..."

Authority and Analysis - FAA Application

The party asserting the FAA applies to an agreement has "the burden to demonstrate FAA coverage by declarations and other evidence." (Hoover v. American Income Life Ins.Co. (2012) 206Cal.App.4th 1193, 1207; see Shepard v. Edward Mackay Enterprises, Inc. (2007) 148Cal.App.4th 1092, 1101) In general, the FAA "governs arbitration provisions in contracts that involve interstate commerce." (Mastick v. TD Ameritrade, Inc. (2012) 209 Cal.App.4th 1258, 1263, 147 Cal. Rptr. 3d 717.) Title 9 of the United States Code section 2, ("the primary substantive provision of the FAA" as noted by Cronus Investments, Inc. v.

Concierge Services (2005) 35 Cal.4th 376, 384) provides in part: "A written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract . . . ." (9 U.S.C. Sec. 2,; see Allied-Bruce Terminix Cos. v. Dobson (1995) 513 U.S. 265, 277 ["involving commerce" broadly construed].) "The FAA applies to contracts that involve interstate commerce (9 U.S.C.

Sec.Sec. 1, 2), but since arbitration is a matter of contract, the FAA also applies if it is so stated in the agreement." (Davis v. Shiekh Shoes, LLC (2022) 84 Cal.App.5th 956, 963.) Here, it appears undisputed that the FAA applies.

Facts - Class Action Waiver

Further, the Agreement states: "Individualized Arbitration and Class Action Waiver. To the maximum extent permitted by law, (a) the arbitrator is prohibited from consolidating the claims of others into one proceeding or fashioning a proceeding as a class, collective, joint, or group action or as a representative action involving claims of or legal violations suffered by one or more other claimants (collectively, "Class Action") or awarding relief to, on behalf of, or based on the claims of or legal violations suffered by multiple claimants or individuals in one proceeding, and (b) the parties waive any right to proceed in a Class Action, provided that (x) any dispute concerning the scope or validity of this paragraph shall be decided by a court of competent jurisdiction and not the arbitrator, and (y) should a court determine this prohibition on Class Actions is invalid for any claims for any reason, the parties waive any right to arbitration of a Class Action for those claims (although any portion of the Class Action Waiver that is enforceable shall be enforced in arbitration) and instead agree and stipulate that such claims will be heard only by a judge, and not an arbitrator or jury, after the parties arbitrate any claims subject to this MAA."

Authority and Analysis - Class Action Waiver

As the FAA applies, the class action waiver is enforceable. (Viking River Cruises v. Moriana (2022) 596 U.S. 639, 651 ["'a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so'"]; AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 352 [holding class action waivers are enforceable under FAA and California rule to contrary preempted].) Therefore, the Court turns to defenses to enforcement of the Agreement.

Facts - Defenses to Enforcement - Unconscionability

As to unconscionability, Plaintiff declares that the ADRA was required to be completed in order to continue employment, that Plaintiff was instructed to complete and sign the ADRA as soon as possible. (Declaration of Plaintiff P.P.6, 8.) Further, that no person explained the contents of the ADRA or that signing it affected Plaintiff's rights to bring an action in court. (Declaration of Plaintiff P.6.) Further, Plaintiff states that while there was an opt out provision, no one informed Plaintiff of the need to take separate action to avoid arbitration. (Declaration of Plaintiff P.7.)

Additionally, that Plaintiff was not permitted to speak with an attorney or negotiate any terms. (Declaration of Plaintiff P.7.) Plaintiff indicates that Plaintiff would not have signed the ADRA had Plaintiff known it contained the arbitration provisions. (Declaration of Plaintiff P.9.) Further, Plaintiff identifies the a number of provisions that Plaintiff argues are substantively unconscionable, including compelling claims outside of the scope of the parties' relationship, a lack of mutuality including the "mass claims" term, an indefinite term, a waiver of jury trial, and circumvention of the EFAA.

Plaintiff argues that these terms cannot be severed and therefore the entire ADRP must be found unenforceable.

Authority and Analysis - Defenses to Enforcement - Unconscionability

The inquiry into unconscionability consists of two prongs: A contract will be revoked if it is both procedurally unconscionable and substantively unconscionable. (Armendariz v. Foundation Health Psychcare Service, Inc. (2000) 24 Cal.4th 82, 102.) Procedural and substantive unconscionability need not be present to the same degree. "[T]he 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. at 114.)

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. The component of surprise arises when the challenged terms are 'hidden in a prolix printed form drafted by the party seeking to enforce them.'" (Nyulassy v.

Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1281.) The Court also considers whether circumstances of the contract's formation created such oppression or surprise that closer scrutiny of its overall fairness is required. (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 126-127.) "The circumstances relevant to establishing oppression include, but are not limited to (1) the amount of time the party is given to consider the proposed contract; (2) the amount and type of pressure exerted on the party to sign the proposed contract; (3) the length of the proposed contract and the length and complexity of the challenged provision; (4) the education and experience of the party; and (5) whether the party's review of the proposed contract was aided by an attorney." (Id.)

As OTO recognizes, the pressure exerted on a standard employee to accept an adhesive arbitration agreement as a condition of employment is "particularly acute," which indicates oppression. (Id. at 127.) "An adhesive contract is standardized, generally on a preprinted form, and offered by the party with superior bargaining power on a take-it-or-leave-it basis. (Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1245.) Arbitration contracts imposed as a condition of employment are typically adhesive. (Armendariz, supra, 24 Cal.4th at 114-115; Serpa v.

California Surety Investigations, Inc. (2013) 215 Cal.App.4th 695, 704.) But the fact that an agreement is adhesive is not, alone, sufficient to render it unconscionable. (Malone v. Superior Court (2014) 226 Cal.App.4th 1551, 1561.) "[A] compulsory pre-dispute arbitration agreement is not rendered unenforceable just because it is required as a condition of employment or offered on a 'take it or leave it' basis." (Lagatree v. Luce, Forward, Hamilton & Scripps (1999) 74 Cal.App.4th 1105, 1127.) Here, the Court agrees that the Agreement at issue has some degree of procedural unconscionability as a preprinted form provided to an employee, that the Agreement appears to be a condition of employment and that the Agreement was not the product of negotiation.

Substantive Unconscionability

"Substantive unconscionability occurs when a contract, particularly, contracts of adhesion, impose terms "that have been variously described as overly harsh, unduly oppressive, so one-sided as to shock the conscience, or unfairly one-sided. All of these formulations point to the central idea that the unconscionability doctrine is concerned not with a simple old-fashioned bad bargain, but with terms that are unreasonably favorable to the more powerful party. Unconscionable terms impair the integrity of the bargaining process or otherwise contravene the public interest or public policy or attempt to impermissibly alter fundamental legal duties." (OTO, L.L.C. v.

Kho, supra, 8 Cal. 5th at 129-30, internal quotations and citations omitted.) Armendariz sets forth elements of essential substantive fairness as follows: (1) provide for a neutral arbitrator: (2) provide for adequate discovery; (3) require the arbitrator to issue a written decision that permits limited judicial review; (4) provide for the same remedies that would otherwise be available to the employee in court; (5) not require the employee to bear costs unique to arbitration; and (6) provide a "modicum of bilaterality" between the employer and employee. (Armendariz, supra. 24 Cal 4th at 102-113, 117-118.)

Scope, Duration and Mutuality

Here, the ADRA states: "1. Individual and the Company waive all rights to trial in court before a judge or jury on all claims covered by this Mutual Arbitration Agreement ("MAA")...

2. Except as provided below, claims subject to this MAA include without limitation all legal disputes or claims pertaining to Individual's employment or other relationship with the Company (including application for or termination of employment or other relationship or any background check process)..." (ADRA - Mutual Arbitration Agreement - Sections 1, 2.) "3. Claims subject to these ADR Agreements include claims against the Company or the Company's parents, subsidiaries, affiliates, divisions, brands, successors, assigns, clients, and customers; their alleged agents, joint or co-employers, and joint ventures; and their respective owners, directors, officers, employees, or agents, whether current, former, or future, as all these individuals and entities are third-party beneficiaries to these ADR Agreements, are entitled to the rights and benefits under them, and may enforce them as if they were parties... 4...

These ADR Agreements cannot be orally modified and shall remain in effect even after the termination of Individual's employment or other association..." (ADRA - General Provisions - Sections 3, 4.)

Plaintiff cites to Cook v. University of Southern California (2024) 102 Cal.App.5th 312, where the court found agreement was overbroad in scope because it required arbitration of "all claims, whether or not arising out of Employee's University employment, remuneration or termination." (Id. at 321.) The court found the term substantively unconscionable as it "required Cook to arbitrate claims that are unrelated to her employment with USC." (Id.) The Cook court contrasted its clause with the one in Roman v.

Superior Court (2009) 172 Cal.App.4th 1462. In Roman, the clause at issue stated it applied to "all disputes and claims arising out of the submission of this application," and "all disputes . . . which might arise out of my employment with the company." (Id. at 1467.) Cook noted: "In Roman, unlike here, the arbitration clause in question was expressly limited to claims arising from the employee's job application and subsequent employment." (Cook, supra, 102 Cal.App.5th at 323.)

However, the Court notes Ayala-Ventura v. Superior Court (Feb. 19, 2026, No. F089695) ___Cal.App.5th___ [2026 Cal. App. LEXIS 163], which notes Cook is factually distinguishable and that unconscionability is highly dependent on context: Cook must be considered in its own context which differs materially from the circumstances in this case. (Sanchez v. Valencia Holding Co., LLC, supra, 61 Cal.4th at p. 911 ["An evaluation of unconscionability is highly dependent on context."].) As in Cook, the Agreement potentially covers a broad array of claims regardless of whether they arise out of Ayala-Ventura's employment with CCS.

But the Cook court did not conclude an arbitration agreement covering all claims including those unrelated to employment is per se unconscionable as Ayala-Ventura seems to argue. Because "parties are free to contract for asymmetrical remedies and arbitration clauses of varying scope," the Agreement's purportedly broad scope does not necessarily mandate a finding of unconscionability. (Armendariz, supra, 24 Cal.4th at p. 118.) 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, supra, 102 Cal.App.5th at p. 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.

This more limited potential claims bears on Ayala-Ventura's claim the Agreement is unconscionable because it is infinite in duration. The Agreement states it "shall survive the termination of [Ayala-Ventura's] employment. It can only be revoked or modified by a writing signed by [Ayala-Ventura] and the Human Resources Representative of the Company that specifically states an intent to revoke or modify this Arbitration Agreement." Ayala-Ventura argues this language is substantially the same as the language the Cook court found unconscionable because the agreement survived indefinitely following the plaintiff employee's termination.

Specifically, the agreement in Cook provided it "'shall survive the termination of Employee's employment, and may only be revoked or modified in a written document that expressly refers to the "Agreement to Arbitrate Claims" and is signed by the President of the University.'" (Cook, supra, 102 Cal.App.5th at p. 317.) Though the Agreement's language is substantially like that in Cook, we reiterate the importance of context in determining unconscionability. The various potential claims that could arise against USC together with the agreement's infinite duration made it unconscionable.

Ayala-Ventura claims if she were injured in an automobile accident caused by one of CCS's company vehicles 10 years after her employment, she would be compelled to arbitrate a claim. But without facts about the number of company vehicles generally in use by CCS, we are unable to assess the probability of this occurrence, which appears speculative at best. Nothing in the record indicates CCS's operations have anything like the well-known, broad capacity of USC's reach. Cook could be subject to the arbitration agreement forever in any manner of ways including not just a botched surgery but an injury while attending a USC football game in 15 years." (Id. at *29-31.)

Similarly, here, any anticipated claims against Defendant that do not arise out of employment and which may occur years in the future are speculative under this analysis as Defendant is not similarly situated as USC. Given that Defendants are retailers of rural lifestyle products, and lacking evidence as to the probability of the occurrence of a future claim involving a vehicular accident, slip and fall or other cause of action against Defendant, the Court finds Ayala-Ventura applicable to distinguish Cook and find no substantive unconscionability present based on these terms.

Cook also examined the issue of mutuality, noting "The agreement requires Cook to arbitrate any and all claims she may have against USC 'or any of its related entities, including but not limited to faculty practice plans, or its or their officers, trustees, administrators, employees or agents, in their capacity as such or otherwise.' However, the agreement does not require USC's 'related entities' to arbitrate their claims against Cook." (Cook, supra, 102 Cal.App.5th at 326.) The court concluded "This confers a benefit on USC and its broadly defined 'related entities' that is not mutually afforded to Cook." (Id. at 327.)

On this issue, the Ayala-Ventura court also distinguished Cook, stating: "The employee in Cook was obliged to arbitrate her claims against USC, its related entities, as well as its "officers, trustees, administrators, employees or agents," but only USC was bound to arbitrate its claims against the plaintiff. The agreement lacked mutuality because USC's "'related entities'" were not bound to it. (Cook, supra, 102 Cal.App.5th at p. 319.) Here, the Agreement's definition of "Company" expressly includes CCS's related entities and binds those entities to arbitration.

Cook was also bound to arbitrate any claims against USC's officers, trustees, administrators, employees or agents "'in their capacity as such or otherwise.'" (Id. at p. 317, italics added.) This language was understood as requiring Cook to arbitrate any claims against these individuals even where they were not acting in their identified capacity. In contrast, the Agreement expressly limits arbitration to claims against CCS's employees or agents in their capacity as such. Any claims Ayala-Ventura may have against employees or agents unrelated to their role are therefore not subject to the Agreement." (Id. at *33-34.)

Here, the Court likewise finds the Ayala-Ventura court's contrasting of Cook applicable, where there is no binding of the other entities in any capacity beyond the connection to the employment. The scope of the ADRA states that claims must "pertain[] to Individual's employment or other relationship or any background check process" which, in the Court's view, limits any claims against Defendants' other entities to employment related disputes. As such, the Court does not find a lack of mutuality.

Mass Claims

As to the "mass claims term" the ADRA states: "If 20 or more individuals seek to initiate arbitrations with the Company raising similar claims, and counsel for the individuals bringing the claims are the same or coordinated or the claims are otherwise coordinated ("Mass Claims"), these additional procedures shall apply. Individual understands and agrees that if Individual chooses to initiate Individual's claim as part of Mass Claims, the adjudication of Individual's claim may be delayed. Counsel for the individuals initiating Mass Claims and counsel for the Company shall each select up to five arbitration proceedings (per side) to be filed in and proceed in arbitration in bellwether proceedings to be resolved individually, with each arbitration proceeding assigned to a different arbitrator.

In the meantime, no other arbitration proceeding of Mass Claims may be filed or deemed filed in arbitration, neither the arbitration administrator (if any) nor any arbitrator is authorized to accept or administer arbitrations commenced in violation of these procedures, and no arbitration costs or fees shall be due other than for those arbitration proceedings selected by the parties to proceed as bellwether proceedings...."

Here, Plaintiff argues that this term cannot be mutual, where it only applies to multiple claims against Defendants. Additionally, that it imposes an unreasonable delay as to cases beyond the first set of bellwether proceedings. Plaintiff cites to a district court opinion that found a mass claims term unconscionable where there was no time limit on hearing claims beyond the first "initial test cases" in contrast to other mass claims terms that imposed a 120 day limit before mediation of the remaining cases and an option to opt out after a 90 day medication period. (MacClelland v.

Cellco P'ship (N.D.Cal. 2022) 609 F. Supp. 3d 1024, 1043, contrasting (McGrath v. Doordash, Inc. (N.D.Cal. Nov. 5, 2020, No. 19-cv-05279-EMC) 2020 U.S.Dist.LEXIS 207491, at *1.) The Court agrees that the provision here is more like the one found unconscionable in MacClelland than the term examined in McGrath as it lacks any opt out process while awaiting adjudication of the bellwether cases. As such, the Court finds this mass claim term unconscionable.

Waiver of Jury Trial

The ADRA states: "1. Individual and the Company waive all rights to trial in court before a judge or jury on all claims covered by this Mutual Arbitration Agreement ("MAA")." (ADRA - Mutual Arbitration Agreement - Section 1.) "INDIVIDUAL IS KNOWINGLY AND VOLUNTARILY WAIVING THE RIGHT TO FILE A LAWSUIT AGAINST THE COMPANY OR PROCEED IN FRONT OF A JUDGE OR JURY, EXCEPT AS DESCRIBED HEREIN. Furthermore, for any claim not subject to individual arbitration, the parties waive any right to a jury and instead agree and stipulate that the claim(s) at issue will be heard only by a judge, to the maximum extent permitted by law." (ADRA - General Provisions - Section 1.) "[I]t has always been understood without question that parties could eschew [a] jury trial . . . by agreeing to a method of resolving [a] controversy, such as arbitration, which does not invoke a judicial forum. . . . [P] . . . [P] When parties agree to submit their disputes to arbitration they select a forum that is alternative to, and independent of, the judicial . . . ." ((Madden v.

Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 713-714.)

In Lange v. Monster Energy Co. (2020) 46 Cal.App.5th 436, 451-453, the jury waiver provision stated: "Without in any way detracting from the intent and obligation of the Company and you to arbitrate all disputes and controversies between them in accordance with the above provisions, in the event that any controversy or claim is determined in a court of law, both you and the Company hereby irrevocably waive any and all rights to trial by jury in any legal proceeding arising out of or relating to this Agreement, the breach thereof or the employee's employment or other business relationship.

Except as otherwise required by law, both you and the Company hereby specifically waive any claims for punitive or exemplary damages or for any other amounts awarded for the purposes of imposing a penalty....YOU AGREE TO WAIVE THE RIGHT TO A JURY AND TO SUBMIT DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR EMPLOYMENT TO NEUTRAL, BINDING ARBITRATION." The Lange court described the arguments as follows: "Lange contends that the agreement's jury trial waiver is substantively unconscionable.

Monster responds that the jury waiver was an inherent component of the parties' agreement to resolve disputes through arbitration and is, therefore, not unconscionable." The court resolved this, noting: "Lange and Monster are not arguing about the same jury trial waiver. While Monster refers to a jury trial waiver inherent in arbitration agreements, Lange's argument is focused on the jury trial waiver preceded by the words "in the event that any controversy or claim is determined in a court of law."

And that jury trial waiver is not susceptible to any interpretation other than as an unconscionable predispute jury trial waiver. (See Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 961.)" (Id.)

As such, the first section quoted above, found in the ADRA - Mutual Arbitration Agreement - Section 1, is the inherent component of the parties' agreement to arbitrate disputes. The second section quoted above, found in the ADRA - General Provisions - Section 1, does not appear to be limited to claims within the scope of the ADRA by its plain language, as it states "INDIVIDUAL IS KNOWINGLY AND VOLUNTARILY WAIVING THE RIGHT TO FILE A LAWSUIT AGAINST THE COMPANY OR PROCEED IN FRONT OF A JUDGE OR JURY."

To the extent this second section attempts to enforce a pre-dispute waiver of any non-arbitrable claim, it is unenforceable, and substantively unconscionability. (See Grafton, supra, 36 Cal.4 th at 961 ["Resolving any ambiguity in favor of preserving the right to jury trial, ...[] we conclude section 631 [of the Code of Civil Procedure] does not authorize predispute waiver of th[e] right [to a jury trial]"] without some legislative authorization.) As such, the Court finds the second section quoted above unconscionable under Lange and Grafton.

Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 or "EFAA" mandates that "no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute." (Title 9 of the United States Code section 402, subdivision (a).) Here, the Agreement expressly carves out sexual assault and harassment, stating: "The only legal disputes or claims excluded from this MAA are those: (a) constituting sexual harassment or sexual assault disputes as defined by the Federal Arbitration Act ("FAA");" As such, the Court does not find the exclusion of sexual assault or harassment claims violates the EFAA. As such, this term is not unconscionable.

Severance

Courts have discretion to sever unconscionable clauses and enforce the remainder of the contract. (Civ. Code, Sec. 1670.5, subd. (a); Armendariz, supra, 24 Cal.4th at p. 1244.) There is a strong preference for courts to sever unconscionable provisions unless unconscionability permeates the entire agreement. (De Leon v. Pinnacle Property Management Services, LLC (2021) 72 Cal.App.5th 476, 492.) However, if "the central purpose of the contract is tainted with illegality, then the contract as a whole cannot be enforced." (Armendariz, supra, 24 Cal.4th at p. 124.) But 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." (Id.)

Here, the ADRA states: "Except as otherwise provided in paragraphs 5 and 6 of the MAA, if a Term conflicts with a mandatory provision of applicable law that is not preempted by the FAA, or conflicts with the FAA, the conflicting provision shall be severed automatically, and the remainder construed to incorporate the mandatory provision. In the event of such severance or modification, the remainder shall not be affected." The Court will strike the mass claims section (ADRA - Mutual Arbitration Agreement - Section 7) and the Section 1 of the General Provisions as to waiver of jury (ADRA - General Provisions - Section 1). As such, the ADRA, as modified, lacks substantive unconscionability. Therefore, the Court grants the motion.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings. Re: Asman, Bruce E. et al vs. Ponce, Cipriano et al