JONES, P. J., Concurring and Dissenting. Under compulsion of Discover Bank v. Superior Court (2005) 36 Cal.4th 148 [30 Cal.Rptr.3d 76, 113 P.3d 1100] {Discover Bank), I concur in my colleagues’ conclusion that the arbitration clauses before us are substantively unconscionable because of the prohibition in the mandatory arbitration provision against the pursuit of any remedy by a plaintiff as a representative of other potential claimants or class of claimants. But I cannot agree that the contracts are also procedurally unconscionable. In my view, plaintiffs do not show, on the record before us, [589]either surprise or oppression to support their procedural unconscionability claim. In the absence of both procedural and substantive elements of unconscionability, this court should decline to exercise its discretion to refuse to enforce the disputed clause. {Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114 [99 Cal.Rptr.2d 745, 6 P.3d 669] {Armendariz).) The trial court erred when it denied the motion to compel arbitration, and its order so holding should be reversed.
BACKGROUND
It is undisputed that the challenged terms of the cellular telephone service agreement were drafted by cellular telephone provider T-Mobile USA, Inc., and executed by each plaintiff when he/she signed up for T-Mobile cellular telephone service. The contracts were presented on a “take-it-or-leave-it” basis, were not subject to negotiation, and were therefore adhesive contracts. As recounted by the majority, a short paragraph directly above the signature line contained a statement that the customer’s signature constituted the customer’s acknowledgement of receipt, review of, and agreement to be bound by “the T-Mobile Terms and Conditions,” and that “All disputes are subject to mandatory arbitration in accordance with paragraph 3 of the Terms and Conditions.” A second notice appeared in the introductory paragraph, cautioning subscribers in capitalized letters that “BY ACTIVATION OR USING OUR SERVICE YOU AGREE TO BE BOUND BY THE AGREEMENT ... IF YOU DON’T AGREE WITH THESE T&C’S, DON’T USE THIS SERVICE OR YOUR UNIT.”
Customers were given a third notice on the closing seam of the shipping box containing the newly purchased handset. The box was sealed with a sticker that stated: “IMPORTANT Read the enclosed T-Mobile Terms & Conditions. By using T-Mobile service, you agree to be bound by the Terms & Conditions, including the mandatory arbitration and early termination fee provisions.”
Once the shipping box was opened, the subscriber found a “Welcome Guide.” Page 3 of the “Welcome Guide” was a table of contents, which listed “Terms and Conditions” as one of the sections of the guide. At the bottom of the table of contents was the statement: “Important Note: By using T-Mobile service, you acknowledge that you have read and agree to the terms and conditions of the Service Agreement.” The “Terms and Conditions” included in the welcome guide were identical to the terms and conditions given to the customers before they signed their service agreements, including the same introductory paragraph admonishing the customer to read the terms and conditions carefully and not to use the service if they did not agree with all terms and conditions.
[590]Section 5 of the terms and conditions, entitled “Cancellation and Return Policy,” describes a “Return Period.” It states, “[t]here is a Return Period during which you can cancel a newly activated line of Service without paying a cancellation fee. The Return Period is 14 calendar days from the date of Service activation or 30 days from the Phone’s purchase date if you have not activated service. . . . You may be required to pay a restocking fee. . . .”
The actions brought by plaintiffs Bruce Gatton, Jeweldean Hull, Christina Nguyen and Conor Vaughn, on behalf of themselves individually and on behalf of all similarly situated California residents, challenged the term in T-Mobile’s service agreement which imposed a fee for termination of the service agreement before its expiration date. The action of plaintiffs Nguyen and Adrianne Grant, brought on behalf of themselves individually and on behalf of all similarly situated California residents, concerns a locking device installed in T-Mobile handsets that prevents its subscribers from switching cell phone providers without purchasing a new handset.
DISCUSSION
It is well settled that an agreement to arbitrate is valid, irrevocable, and enforceable except when grounds exist for the revocation of any contract (Code Civ. Proc., §§ 1281, 1281.2, subd. (b)), and it is equally settled that a court can refuse to enforce an unconscionable provision in a contract. (Civ. Code, § 1670.5; Armendariz, supra, 24 Cal.4th at pp. 83, 114.)
1. Unconscionability
In Discover Bank our Supreme Court “ ‘briefly recapitulate^] the principles of unconscionability’ ” in the context of a challenge to a mandatory arbitration clause forbidding classwide arbitration that was added to the plaintiff’s bank credit card agreement 13 years after the plaintiff obtained the card. (Discover Bank, supra, 36 Cal.4th at p. 154.) The bank informed the plaintiff that continued use of the card would be deemed acceptance of the new terms unless the cardholder notified the bank that he did not want to accept the new terms and ceased using his account. (Id. at pp. 154, 160.) “ ‘[T]he doctrine has “ ‘both a “procedural” and a “substantive” element,’ the former focusing on ‘ “oppression” ’ or ‘ “surprise” ’ due to unequal bargaining power, the latter on ‘ “overly harsh” ’ or ‘ “one-sided” ’ results.” [Citation.] The procedural element of an unconscionable contract generally takes the form of a contract of adhesion, “ ‘which, imposed and drafted by the party of superior bargaining strength, relegates o the subscribing party only the opportunity to adhere to the contact or reject it.’ ” . . . [][] Substantively unconscionable terms may take various forms, but may generally be described as unfairly one-sided.’ (Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th [591106]4, 1071[130 Cal.Rptr.2d 892, 63 P.3d 979]....” (Discover Bank, supra, 36 Cal.4th at p. 160.)1
Discover Bank continued: “We agree that at least some class action waivers in consumer contracts are unconscionable under California law. First, when a consumer is given an amendment to its cardholder agreement in the form of a ‘bill staffer’ that he would be deemed to accept if he did not close his account, an element of procedural unconscionability is present, [quoting Szetela v. Discover Bank (2002) 97 Cal.App.4th 1094, 1100 [118 Cal.Rptr.2d 862] (Szetela).\\ Moreover, although adhesive contracts are generally enforced [quoting Scissor-Tail], class action waivers found in such contracts may also be substantively unconscionable inasmuch as they may operate effectively as exculpatory contract clauses that are contrary to public policy.” (Discover Bank, supra, 36 Cal.4th at pp. 160-161.)
For a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability, both procedural and substantive unconscionability must be present, although not necessarily in the same degree. (Armendariz, supra, 24 Cal.4th at p. 114; see also A & M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 487, 493 [186 Cal.Rptr. 114] (A & M Produce).) T-Mobile contends the service agreement at issue here is not procedurally unconscionable because there was no showing of surprise or oppression.2 I agree.
2. Procedural Unconscionability
A. Surprise
T-Mobile argues that plaintiffs cannot claim surprise regarding the service agreement’s arbitration provision because the provision was fully disclosed to [592]potential purchasers. As the majority notes, plaintiffs conceded in their reply brief the absence of the surprise component of procedural unconscionability. Plaintiffs’ efforts to resurrect this argument in supplemental briefing must fail. The record contains ample evidence of T-Mobile’s disclosures and admonitions given to subscribers before and after the purchase. The quantity and prominence of the disclosures and the grace period of 14 days from service activation or 30 days from purchase if no activation, should a customer decide he or she did not want to accept the terms of the service agreement, demonstrate the absence of surprise to support procedural unconscionability. I turn then to the issue of oppression.
B. Oppression
T-Mobile argues the oppression element of procedural unconscionability is lacking because plaintiffs could obtain mobile phone service from other providers whose agreements did not contain a mandatory arbitration provision and because there are no other indicia of oppression. Plaintiffs counter that the service agreement “provides a maximum degree of procedural unconscionability” because it is a standard form, preprinted, nonnegotiable contract of adhesion presented to them on a “take it or leave it” basis.
The oppression component of procedural unconscionability has long been described as arising from an inequality of bargaining power of the parties to the contract which results in no real negotiation and an absence of meaningful choice on the part of the weaker party. (A & M Produce, supra, 135 Cal.App.3d at p. 486; see also Wayne v. Staples, Inc, (2006) 135 Cal.App.4th 466, 480 [37 Cal.Rptr.3d 544]; Crippen v. Central Valley RV Outlet (2004) 124 Cal.App.4th 1159, 1164 [22 Cal.Rptr.3d 189]; Kinney v. United HealthCare Services, Inc. (1999) 70 Cal.App.4th 1322, 1329 [83 Cal.Rptr.2d 348].)
The majority ascribes to the California Supreme Court a consistent position that “ 1 “[t]he procedural element of an unconscionable contract generally takes the form of a contract of adhesion.” ’ ” (Maj. opn., ante, at p. 582; see Discover Bank, supra, 36 Cal.4th at p. 160, quoting Little, supra, 29 Cal.4th at p. 1071; see also Armendariz, supra, 24 Cal.4th at p. 113.) While our Supreme Court has repeated the quoted statement, I cannot agree that our high court views procedural unconscionability as established based only on the presence of “unequal bargaining power” (Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 925, fn. 9 [216 Cal.Rptr. 345, 702 P.2d 503]) or “an inequality of bargaining power that results in no real negotiation and an absence of meaningful choice” (Flores v. Transamerica Home First, Inc. (2001) 93 Cal.App.4th 846, 853 [113 Cal.Rptr.2d 376] (Flores), quoting A & M Produce, supra, 135 Cal.App.3d at p. 486). A review of the origin of these definitional statements leads me to conclude that more than the existence of an adhesive contract is required.
[593]Critical to an unconscionability analysis is Scissor-Tail, supra, 28 Cal.3d 807, in which the plaintiff contended he should not be compelled to arbitrate a dispute because the underlying agreement, at least to the extent it required arbitration of disputes between the parties, was “an unenforceable contract of adhesion.” (Id. atp. 817.) Scissor-Tail concluded the agreement was adhesive, i.e., a “ ‘standardized contract, which, 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.’ ” (Ibid., quoting Neal, supra, 188 Cal.App.2d at p. 694.) But Scissor-Tail continued: “To describe a contract as adhesive in character is not to indicate its legal effect. It is, rather, ‘the beginning and not the end of the analysis insofar as enforceability of its terms is concerned.’ [Citation.] . . . Thus, a contract of adhesion is fully enforceable according to its terms [citations] unless certain other factors are present which, under established legal rules—legislative or judicial—operate to render it otherwise.” (Scissor-Tail, supra, at p. 819, fns. omitted.) No subsequent case has disapproved this language. Indeed, although Discover Bank recited the A & M Produce analytic framework, Discover Bank also observed that contracts of adhesion are generally enforced, specifically quoting Scissor-Tail. (Discover Bank, supra, 36 Cal.4th at pp. 160, 161.)
Reading Scissor-Tail together with A & M Produce, and particularly the phrase in the latter decision—“ ‘an absence of meaningful choice on the part of’ ” the weaker party (A & M Produce, supra, 135 Cal.App.3d at p. 486)—, I conclude there is no taint of unconscionability from the bare fact that a contract is adhesive. Other factors must be present to preclude enforceability on grounds of unconscionability.
I recognize that a number of cases have implied, if not stated outright, that a contract of adhesion is inherently procedurally unconscionable. (See, e.g., Flores, supra, 93 Cal.App.4th at pp. 853-854; Marin Storage & Trucking, Inc. v. Benco Contracting & Engineering, Inc. (2001) 89 Cal.App.4th 1042, 1053 [107 Cal.Rptr.2d 645] (Marin Storage); Kinney v. United HealthCare Services, Inc., supra, 70 Cal.App.4th at p. 1329 (Kinney); Martinez v. Master Protection Corp. (2004) 118 Cal.App.4th 107, 114 [12 Cal.Rptr.3d 663] (Martinez).) “Analysis of unconscionability begins with an inquiry into whether the contract was a contract of adhesion—i.e., a standardized contract, imposed upon the subscribing party without an opportunity to negotiate the terms. [Citations.] A finding of a contract of adhesion is essentially a finding of procedural unconscionability. [Citations.]” (Flores, supra, 93 Cal.App.4th at p. 853.) However, a review of the nature and/or timing of the offer of the disputed contract provisions to plaintiffs in these cases generally shows the presence of facts supporting procedural unconscionability beyond the bare existence of a contract of adhesion.
[594]Flores, for example, concerned a “Loan Agreement and Note” and deed of trust for a reverse mortgage with a mandatory arbitration clause, which did not appear until page 11, section 20 of the 14-page agreement. (Flores, supra, 93 Cal.App.4th at p. 849.) Moreover, the “IMPORTANT INFORMATION FOR ALL BORROWERS” given to the 80- and 76-year-old plaintiffs indicated they were required to sign the standardized loan documents in order to establish the reverse mortgage; the plaintiffs were never told the loan documents were negotiable; and the mortgage company representative told them that the company was the only one in California that offered reverse mortgages, thereby indicating they had no real choice of alternate lenders. (Id. at pp. 851, 853.) Not only was the arbitration agreement presented on a “take it or leave it” basis, but the borrowers were affirmatively told they had no real alternative.
Marin Storage involved an indemnification clause that appeared on the reverse side of a document that described itself as a “Work Authorization and Contract,” but which was more obviously an invoice for work performed than a contract. (Marin Storage, supra, 89 Cal.App.4th at p. 1047.) The reverse side was difficult to read and was presented for signature at the jobsite with no reasonable opportunity to read or consider the terms, and, according to the evidence, the document was treated by the plaintiff corporation as an invoice, not a contract purporting to modify the critical allocation of risks and liability for damages. (Id. at pp. 1053, 1054.) While we found “no error in the trial court’s conclusion that the [contract] was a contract of adhesion and, hence, procedurally unconscionable,” the evidence concerning the appearance and presentation of the contract readily comported with the “unfair surprise” element of procedural unconscionability, i.e., supposedly agreed-upon terms that are hidden in a prolix printed form and never brought to the attention of the weaker party. (Id. at pp. 1054, 1056; see A & M Produce, supra, 135 Cal.App.3d at pp. 486, 488, 490.)
Kinney, supra, 70 Cal.4th 1322 involved a mandatory arbitration policy contained in an employee handbook issued by an employer health care services corporation. The employer required an employee with six years’ service to sign an acknowledgment of receipt of the handbook when she returned to work after a hospitalization. (Id. at pp. 1324—1326.) The employee was pressured to sign the form acknowledging receipt of the handbook the same day she received it, precluding her from reviewing the handbook or its arbitration clause. Significantly, the language used in the policy to describe its scope was so extensive as to make it difficult for a layperson to read and understand its parameters. “. . . [A]fter a statement of intent extolling the virtues of ... the arbitration process, the policy provides, in a fairly lengthy paragraph, that United is not required to pursue any claim of its own in an [595]arbitration setting.” {Id. at p. 1330.) Moreover, while the policy was unilaterally imposed on employees, the corporation could modify it at any time without notice. {Ibid.)
In Martinez, supra, 118 Cal.App.4th 107 prospective employee Martinez indicated to the human resources representative that he preferred not to sign an arbitration agreement. He was told he could not work for the employer if he did not sign and accept it. In finding the arbitration clause procedurally unconscionable, the court cited not only the inequality of bargaining power, but also the absence of meaningful choice. {Id. at p. 114.)
The factual circumstances in which the Flores, Kinney and Martinez contracts were made provide additional grounds to support a finding of oppression apart from the bare fact that the contracts at issue were contracts of adhesion, as that term is defined in Scissor-Tail and Neal. (See fn. 1, ante, at p. 591.)
As I have noted, numerous appellate courts have defined the “oppression” component of procedural unconscionability more broadly than simply the presentation of an adhesive contract on a “take it or leave it” basis. “. . . [0]ur state’s highest court recognized the point at which an adhesion contract becomes oppressive: ‘In many cases of adhesion contracts, the weaker party lacks not only the opportunity to bargain but also any realistic opportunity to look elsewhere for a more favorable contract; he must either adhere to the standardized agreement or forego the needed service.’ ” {Morris v Redwood Empire Bancorp (2005) 128 Cal.App.4th 1305, 1320 [27 Cal.Rptr.3d 797], quoting Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 669, 711 [131 Cal.Rptr. 882, 552 P.2d 1178] {Madden)3
Dean Witter Reynolds, Inc. v. Superior Court (1989) 211 Cal.App.3d 758 [259 Cal.Rptr. 789] {Dean Witter), for example, considered at length the availability of alternative sources of financial services in deciding whether “oppression” and unconscionability had been established to support an experienced investor’s challenge under the Consumers Legal Remedies Act (CLRA; Civ. Code, § 1750 et seq.) to the contract governing his individual retirement account. The court rejected the investor’s contention that availability of alternate sources is irrelevant to the adhesion analysis. “[E]ven though a contract may be adhesive, the existence of ‘meaningful’ alternatives ... in the form of other sources of supply tends to defeat any claim of unconscionability as to the contract in issue.” {Dean Witter, supra, 211 Cal.App.3d at [596]p. 771.) While the investor’s experience and sophistication were factually significant, the court held, “[The investor] was not shown to lack a meaningful choice with respect to the termination fee, and hence the ‘oppression’ factor of the procedural element of unconscionability was not established.” (Id. at p. 772.)
In the case before us, these precedents inform my assessment of whether and to what extent the availability of alternative sources for the goods or services offered in an indisputably adhesive contract will avoid a finding that a challenged arbitration provision is procedurally unconscionable. No case has been cited to us which considered this precise issue. Only Szetela, supra, 97 Cal.App.4th at page 1100 appears to have considered the question in the context of determining the enforceability of an arbitration clause in a contract for consumer goods or services.4
Szetela is factually similar to Discover Bank. A longtime bank cardholder received, in the form of a “bill staffer,” an amendment to his cardholder agreement that provided for mandatory arbitration and prohibited class arbitration. His choices were to accept the amendment or to close his account. Szetela specifically rejected the contention that the availability of a meaningful opportunity to obtain the offered goods or services elsewhere without the offending contract term “is the relevant test for unconscionability.” (Szetela, supra, 97 Cal.App.4th at p. 1100.) “[W]hether Szetela could have found another credit card issuer who would not have required his acceptance of a similar clause is not the deciding factor.” (Id. at p. 1100.) The court observed that procedural unconscionability focuses “on the manner in which the disputed clause is presented to the party in the weaker bargaining position. When the weaker party is presented the clause and told to ‘take it or leave it’ without the opportunity for meaningful negotiation, oppression, and therefore procedural unconscionability, are present. [Citation.] These are precisely the facts in the case before us. [Plaintiff] received the amendment to the Cardholder Agreement in a bill staffer, and under the language of the amendment, he was told to ‘take it or leave it.’ His only option, if he did not wish to accept the amendment, was to close his account. We agree with [plaintiff] that the oppressive nature in which the amendment was imposed establishes the necessary element of procedural unconscionability.” (Ibid.)
[597]Read in its factual context, Szetela does not purport to dispense entirely with consideration of “absence of meaningful choice” in a procedural unconscionability analysis. Unlike the circumstances of the instant case, Szetela was conducting a procedural unconscionability analysis of a new adhesive condition imposed on an existing consumer agreement.
While the existence of a contract of adhesion is frequently the starting point for a procedural unconscionability analysis, adhesiveness and procedural unconscionability are discrete concepts. In my view, a contract of adhesion is not per se procedurally unconscionable. Even assuming the parties to the agreement do not have equal bargaining power, a realistic opportunity for the weaker party to avail him or herself of meaningful market alternatives can obviate oppression for purposes of procedural unconscionability. (Wayne v. Staples, Inc., supra, 135 Cal.App.4th at p. 482; Morris v. Redwood Empire Bancorp, supra, 128 Cal.App.4th at p. 1320.) I do not disagree with Szetela that the availability of alternate sources of a product or service without binding the consumer to the objectionable class action waiver is not the “determinative” factor. (Szetela, supra, 97 Cal.App.4th at p. 1100.) But it is a relevant factor. Indeed, the greater the number of alternatives available to the consumer, the more bargaining power is shifted to the consumer. I do not suggest that the existence of marketplace choice altogether negates the oppression aspect of procedural unconscionability. The extent and significance of meaningful alternatives must be assessed in the light of the particular circumstances of each transaction. Analyzed in this light, I conclude the service agreement herein has not been shown to be procedurally unconscionable.
As T-Mobile argues, and plaintiffs do not dispute, when plaintiffs entered into their service agreements with T-Mobile, two other nationwide wireless telephone companies, Nextel and Sprint, had service agreements that did not contain a class action waiver provision, and, in the case of Nextel, no arbitration agreement at all.5
Furthermore, this agreement was presented to the customer at the time of the initial purchase, and, even after the purchase, the customer had a 14-day return period from date of activation, or a 30-day return period from date of [598]purchase if not activated. These facts distinguish it from Szetela and Discover Bank, in which the bank sent their existing bank card customers a mandatory arbitration/class action waiver provision as a “bill staffer” addendum to their existing service agreements and forced the customers either to accept the new terms or to cancel their established accounts. While the T-Mobile customers may not have been able to negotiate the arbitration/class action waiver provision in the service agreement as part of their purchase negotiation, they were not confronted with a postpurchase choice of either accepting a more restrictive clause, to an extant agreement, or forgoing entirely the service they had originally agreed to and enjoyed.
As Armendariz, supra, 24 Cal.4th 83 and other decisions make plain, adhesive contracts of employment present very different policy considerations from the adhesive consumer contract for a service such as a cell phone. Employment contracts that contain mandatory arbitration clauses are especially susceptible to being oppressive because “in the case of preemployment arbitration contracts, the economic pressure exerted by employers on all but the most sought-after employees may be particularly acute, for the arbitration agreement stands between the employee and necessary employment, and few employees are in a position to refuse a job because of an arbitration requirement.” (Id. at p. 115; see also Little, supra, 29 Cal.4th at p. 1071; Independent Assn. of Mailbox Center Owners, Inc. v. Superior Court (2005) 133 Cal.App.4th 396, 410 [34 Cal.Rptr.3d 659] [franchise agreements akin to employment contracts because franchisees’ livelihoods are involved]; Fitz v. NCR Corp. (2004) 118 Cal.App.4th 702, 722 [13 Cal.Rptr.3d 88] (Fitz).)
Nothing like the economic pressure of obtaining or retaining employment is present in this case. However useful, convenient, or necessary cell phones may be, they are qualitatively different from the offer of a job, or the offer of continued employment (see Fitz, supra, 118 Cal.App.4th at p. 722), or the imposition of a more restrictive policy to an existing employment (see Kinney, supra, 70 Cal.App.4th 1322) or after one has accepted employment (Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519, 1534 [60 Cal.Rptr.2d 138]), for which the job seeker or employee has no realistic alternative. An employee who has no opportunity to negotiate an employer’s mandatory arbitration clause in the employment contract is limited to agreeing to the clause or forfeiting a paycheck and livelihood, and often crucial attendant benefits such as health care insurance or an employer-sponsored pension program. Here, the contract at issue concerned a nonunique consumer good—mobile phone service—available new or used from several sources. There was no evidence that plaintiffs were unaware of the existence of other cell phone providers or that the services of the other providers were not available to them.
Notwithstanding the imbalance in the bargaining power between T-Mobile and its cell phone subscribers, plaintiffs have not persuaded me there is [599]procedural unconscionability in the making of the service agreement. Plaintiffs were fully apprised of the terms of the service agreement, and they did not present evidence of lack of meaningful alternative sources or other arrangements to meet their cellular telephone needs. In these circumstances, T-Mobile’s conduct cannot be deemed oppressive.
As I stated at the outset, the Armendariz analytic framework requires both procedural and substantive elements before a court can exercise its discretion to refuse to enforce a contract under the unconscionability doctrine. (Armendariz, supra, 24 Cal.4th at p. 114; see also A & M Produce, supra, 135 Cal.App.3d at p. 487.) Because there is an absence on this record of both the surprise and oppression factors of procedural unconscionability, the service agreement is not unconscionable, and T-Mobile’s motion to compel arbitration should be granted.
Appellant’s petition for review by the Supreme Court was denied October 10, 2007, S154947.
The definition of “contract of adhesion” that appears in the quote from Little— “ ‘ “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” ’ ” (Little v. Auto Stiegler, Inc., supra, 29 Cal.4th at p. 1071 (Little))—is taken from Neal v. State Farm Ins. Cos. (1961) 188 Cal.App.2d 690, 694 [10 Cal.Rptr. 781] (Neal). Graham v. Scissor-Tail, Inc. (1981) 28 Cal.3d 807, 817 [171 Cal.Rptr. 604, 623 P.2d 165] (Scissor-Tail), characterized it as the “serviceable general definition [that has] well stood the test of time and will bear little improvement.”
In a single paragraph the trial court concluded the service agreement has “some indications” of procedural unconscionability, but “these [unidentified] indications are not particularly strong.” But the court’s actual references reflect the absence of procedural unconscionability. The court noted that adhesive contracts are generally enforced, that the arbitration provision is in paragraph 3 of the agreement and in capital letters (implying it was not hidden from the purchaser), that the contract comes with the phone and is accepted by use of the phone, and that use of a form contract and acceptance by using the product are not per se unconscionable. It denied the motion to compel after concluding that it was substantively unconscionable under the Discover Bank analysis.
Villa Milano Homeowners Assn. v. II Davorge (2000) 84 Cal.App.4th 819, 827 [102 Cal.Rptr.2d 1], took a different view of Madden, stating: “[T]he court [in Madden] left open the possibility that, in a given case, a contract might be adhesive even if the weaker party could reject die terms and go elsewhere. [Citation.]”
In Aral v. Earthlink, Inc. (2005) 134 Cal.App.4th 544 [36 Cal.Rptr.3d 229] the terms of the services agreement for a digital subscriber line (DSL), including a class action waiver, were presented in what Aral characterized as a “ ‘take it or leave it’ ” basis, either through the customer’s installation of the software necessary to activate the DSL or through the materials included in the package in which the software was mailed to the customer “with no opportunity to opt out.” (Id. at p. 557.) Aral concluded “[t]his is quintessential procedural unconscionability.” (Ibid.) Aral does not assist in the resolution of the case before us because the issue of whether meaningful choices of DSL service were available to the customers was nowhere raised in Aral.
See majority opinion, ante, at page 583, footnote 6. The referenced “third consolidated amended” complaints against Nextel and Sprint in the coordinated proceeding and the attached service agreements are in the record on appeal. Because plaintiffs failed to respond to T-Mobile’s contention asserted in the trial court and on appeal that alternative sources were available, I would view the point as conceded. (Fisher v. Gibson (2001) 90 Cal.App.4th 275, 283-284 [109 Cal.Rptr.2d 145].) Rather, plaintiffs’ opposition to T-Mobile’s motion to compel in the trial court and its arguments on appeal presumed that plaintiffs’ allegations of a “contract of adhesion” describe “maximum procedural unconscionability” under California law. I believe California law provides otherwise.