In Sonic-Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659 [121 Cal.Rptr.3d 58, 247 P.3d 130] (Sonic I), we held as a categorical rule that it is contrary to public policy and unconscionable for an employer to require an employee, as a condition of employment, to waive the right to a Berman hearing, a dispute resolution forum established by the Legislature to assist employees in recovering wages owed. We further held that our rule prohibiting waiver of a Berman hearing does not discriminate against arbitration agreements and is therefore not preempted by the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.). We did not invalidate the arbitration agreement at issue. Instead, we held that if one of the parties is dissatisfied with the result of the Berman hearing, it can move to arbitrate the wage dispute consistent with the arbitration agreement, just as a dissatisfied party can obtain a trial in court without such an agreement.
The United States Supreme Court granted certiorari in this case, vacated the judgment, and remanded the case to this court for consideration in light of AT&T Mobility LLC v. Concepcion (2011) 563 U.S. ___ [179 L.Ed.2d 742, 131 S.Ct. 1740] (Concepcion). In Concepcion, the high court clarified the limitations that the FAA imposes on a state's capacity to enforce its rules of unconscionability on parties to arbitration agreements. In light of Concepcion, we conclude that because compelling the parties to undergo a Berman hearing would impose significant delays in the commencement of arbitration, the approach we took in Sonic I is inconsistent with the FAA. Accordingly, we now hold, contrary to Sonic I, that the FAA preempts our state-law rule categorically prohibiting waiver of a Berman hearing in a predispute arbitration agreement imposed on an employee as a condition of employment.
At the same time, we conclude that state courts may continue to enforce unconscionability rules that do not "interfere[] with fundamental attributes of arbitration." (Concepcion, supra, 563 U.S. at p. ___ [131 S.Ct. at p. 1748].)
The employee in this case contends that the particular arbitration scheme at issue is unconscionable, while the employer contends that its arbitration agreement offers adequate protections and advantages to facilitate the employee's claim and is not unreasonably one-sided. Because evidence relevant to the unconscionability claim was not developed below, we remand to the trial court to determine whether the present arbitration agreement is unconscionable under the principles set forth in this opinion.
Frank Moreno is a former employee of Sonic-Calabasas A, Inc. (Sonic), which owns and operates an automobile dealership. As a condition of his employment with Sonic, Moreno signed a document entitled "Applicant's Statement & Agreement." The agreement set forth a number of conditions of employment, including consent to drug testing and permission to contact former employers, as well as a provision making the employment at will. The agreement also contained a paragraph governing dispute resolution, which required both parties to submit employment disputes to "binding arbitration under the Federal Arbitration Act, in conformity with the procedures of the California Arbitration Act (Cal. Code Civ. Proc. sec. 1280 et seq....)." The arbitration provision applied to "all disputes that may arise out of the employment context ... that either [party] may have against the other which would otherwise require or allow resort to any court or other governmental dispute resolution forum[,] ... whether based on tort, contract, statutory, or equitable law, or otherwise." The provision specified that it did not apply to claims brought under the National Labor Relations Act (29 U.S.C. § 151 et seq.) or the California Workers' Compensation Act, or to claims before the Employment Development Department. The provision further stated that the employee was not prevented from "filing and pursuing administrative proceedings only before the California Department of Fair Employment and Housing or the U.S. Equal Opportunity Commission."
In December 2006, after leaving his position with Sonic, Moreno filed an administrative wage claim with the Labor Commissioner for unpaid vacation pay pursuant to Labor Code section 98 et seq. (All statutory references are to the Labor Code unless otherwise indicated.) Moreno alleged he was entitled to unpaid "[v]acation wages for 63 days earned 7/15/02 to 7/15/06 at the rate of $441.29 per day." The filing of such a claim is the first step toward obtaining a Berman hearing.
In February 2007, Sonic petitioned the superior court to compel arbitration of the wage claim and to dismiss the pending administrative action, arguing that Moreno waived his right to a Berman hearing in the arbitration agreement. The Labor Commissioner intervened on Moreno's behalf (§ 98.5), and Moreno adopted the Labor Commissioner's arguments. The Labor Commissioner argued that the arbitration agreement, properly construed, did not preclude Moreno from filing an administrative wage claim under section 98 et seq. According to the Labor Commissioner, resort to a Berman hearing was compatible with the arbitration agreement because the hearing could be followed by arbitration in lieu of a de novo appeal in the superior court under section 98.2, subdivision (a). The Labor Commissioner further argued that interpreting the arbitration agreement to waive a Berman hearing would violate public policy, relying on Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83 [99 Cal.Rptr.2d 745, 6 P.3d 669] (Armendariz).
The superior court denied the petition to compel arbitration as premature. Citing Armendariz, the court said that as a matter of "basic public policy ... until there has been the preliminary non-binding hearing and decision by the Labor Commissioner, the arbitration provisions of the employment contract are unenforceable, and any petition to compel arbitration is premature and must be denied."
Sonic appealed. The Labor Commissioner did not participate in the appeal. During the briefing period in the Court of Appeal, the United States Supreme
We granted Moreno's petition for review. As discussed below, we held in Sonic I that although Moreno could be compelled to arbitrate, he could not be required to waive his right to a Berman hearing before arbitration. Accordingly, we reversed the Court of Appeal and ordered reinstatement of the trial court's denial of Sonic's petition to compel arbitration. Sonic then petitioned the United States Supreme Court for a writ of certiorari. The high court granted the petition, vacated our judgment, and remanded the case to this court "for further consideration in light of AT&T Mobility LLC v. Concepcion, 563 U.S. ___ [179 L.Ed.2d 742, 131 S.Ct. 1740] (2011)." (Sonic-Calabasas A, Inc. v. Moreno (2011) 565 U.S. ___ [181 L.Ed.2d 343, 132 S.Ct. 496].) We requested supplemental briefing from the parties on how Concepcion affects our decision in Sonic I.
We begin by reviewing the Berman statutes and our opinion in Sonic I.
"Within 10 days after notice of the decision any party may appeal to the appropriate court, where the claim will be heard de novo; if no appeal is taken, the commissioner's decision will be deemed a judgment, final immediately, and enforceable as a judgment in a civil action. (§ 98.2.) If an employer appeals the Labor Commissioner's award, `[a]s a condition to filing an appeal pursuant to this section, an employer shall first post an undertaking with the reviewing court in the amount of the order, decision, or award. The undertaking shall consist of an appeal bond issued by a licensed surety or a cash deposit with the court in the amount of the order, decision, or award.' (§ 98.2, subd. (b).) The purpose of this requirement is to discourage employers from filing frivolous appeals and from hiding assets in order to avoid enforcement of the judgment. (Sen. Com. on Labor and Industrial Relations, Analysis of Assem. Bill No. 2772 (2009-2010 Reg. Sess.) as amended Apr. 8, 2010, p. 4.)
"Furthermore, the Labor Commissioner `may' upon request represent a claimant `financially unable to afford counsel' in the de novo proceeding and `shall' represent the claimant if he or she is attempting to uphold the Labor Commissioner's award and is not objecting to the Commissioner's final order. (§ 98.4.) Such claimants represented by the Labor Commissioner may still collect attorney fees pursuant to section 98.2, although such claimants have not, strictly speaking, incurred attorneys fees, because construction of the statute in this manner is consistent with the statute's goals of discouraging unmeritorious appeals of wage claims. [Citation.]" (Sonic I, supra, 51 Cal.4th at pp. 671-674, italics & fn. omitted.)
We then concluded that the protections afforded by a Berman hearing may not be waived as a condition of employment: "There is no question that the lawful payment of wages owed is not merely an individual right but an important public policy goal.... `Civil Code section 3513 provides, in pertinent part, that: "[a]nyone may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement." [¶] The determination of whether a particular statute is for public or private benefit is for the court in each case (1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 645, p. 586). The provisions of the Labor Code, particularly those directed toward the payment of wages to employees entitled to be paid, were established to protect the workers and hence have a public purpose. As was pointed out in In re Trombley (1948) 31 Cal.2d 801, 809 [193 P.2d 734]: "[i]t has long been recognized that wages are not ordinary debts, that they may be preferred over other claims, and that, because of the economic position of the average worker and, in particular, his dependence on wages for the necessities of life for himself and his family, it is essential to the public welfare that he receive his pay when it is due." [Citation.]' [Citation.]" (Sonic I, supra, 51 Cal.4th at p. 679.)
We went on to explain: "Although the statutory protections that the Berman hearing and the posthearing procedures afford employees were added piecemeal over a number of years, their common purpose is evident: Given the dependence of the average worker on prompt payment of wages, the Legislature has devised the Berman hearing and posthearing process as a means of affording an employee with a meritorious wage claim certain advantages, chiefly designed to reduce the costs and risks of pursuing a wage claim, recognizing that such costs and risks could prevent a theoretical right from becoming a reality. These procedures, including the employer undertaking and the one-way fee provision, also deter employers from unjustifiably prolonging a wage dispute by filing an unmeritorious appeal. This statutory regime therefore furthers the important and long-recognized public purpose of ensuring that workers are paid wages owed. The public benefit of the Berman procedures, therefore, is not merely incidental to the legislation's primary purpose but in fact central to that purpose. Nor can there be any doubt that permitting employers to require employees, as a condition of employment, to waive their right to a Berman hearing would seriously undermine the efficacy
We rejected Sonic's argument that "even if a nonarbitration clause that required a Berman hearing waiver is contrary to public policy, an arbitration clause containing the same waiver would not be, because arbitration offers the same or similar advantages as does the Berman hearing process." (Sonic I, supra, 51 Cal.4th at p. 680.) We explained that "the choice is not between a Berman hearing and arbitration, because a person subject to binding arbitration and eligible for a Berman hearing will still be subject to binding arbitration if the employer appeals the Berman hearing award. The choice is rather between arbitration that is or is not preceded by a Berman hearing. As discussed above, there are considerable advantages for employees to undergo the Berman hearing process before arbitration." (Ibid.) "In contrast, arbitration, notwithstanding its advantages as a reasonably expeditious means of resolving disputes, still generally bears the hallmark of a formal legal proceeding in which representation by counsel is necessary or at least highly advantageous. The arbitration in question here, for example, is to be conducted by a `retired California Superior Court Judge' and `to the extent applicable in civil actions in California courts, the following shall apply and be observed: all rules of pleading (including the right of demurrer), all rules of evidence, all rights to resolution of the dispute by means of motions for summary judgment, judgment on the pleadings, and judgment under Code of Civil Procedure section 631.8.' The arbitrator's award at either party's request will be reviewed by a second arbitrator who will `as far as practicable, proceed according to the law and procedures applicable to appellate review by the California Court of Appeal of a civil judgment following court trial.' A wage claimant undergoing arbitration will need the same kind of legal representation as if he or she were going to superior court." (Sonic I, supra, 51 Cal.4th at pp. 680-681.)
We therefore concluded that "an employee going directly to arbitration will lose a number of benefits and advantages. He or she will not benefit from the Labor Commissioner's settlement efforts and expertise. He or she must pay for his or her own attorney whether or not he or she is able to afford it — an attorney who may not have the expertise of the Labor Commissioner. Moreover, what matters to the employee is not a favorable arbitration award per se but the enforcement of that award, and an employee going directly to arbitration will have no special advantage obtaining such enforcement. Nor is there any guaranty that the employee will not be responsible for any successful employer's attorney fees, for under section 218.5, an employee who proceeds directly against an employer with a wage claim not preceded by a Berman hearing will be liable for such fees if the employer prevails on appeal. In short, the Berman hearing process, even when followed by binding arbitration, provides on the whole substantially lower costs and risks to the
We also rejected Sonic's argument that because employees have the option of pursuing a Berman hearing or going directly to court (§ 218), Berman hearings must be waivable in a predispute agreement. "The purpose of the Berman hearing statutes is to empower wage claimants by giving them access to a Berman hearing with all of its advantages. Allowing an employee the freedom to choose whether to resort to a Berman hearing when a wage claim arises, after evaluating in light of the particular circumstances whether such a hearing is advantageous, is wholly consistent with the public policy behind the Berman hearing statutes. A requirement that the employee surrender the option of a Berman hearing as a condition of employment is not. As we recognized in Armendariz, our concern is with the impermissible waiver of certain rights and protections as a condition of employment before a dispute has arisen. (See Armendariz, supra, 24 Cal.4th at p. 103, fn. 8.) We therefore find the argument that, because the Legislature intended an employee to have the option of a Berman hearing when a wage claim arises, the Legislature also must have intended to permit employers to require employees to waive that option as a condition of employment, to be unpersuasive." (Sonic I, supra, 51 Cal.4th at pp. 682-683, fn. omitted.) For the reasons above, we held that a Berman waiver in the context of a predispute arbitration agreement violates public policy. (Id. at p. 684.)
"`Substantively unconscionable terms may take various forms, but may generally be described as unfairly one-sided. One such form, as in Armendariz, is the arbitration agreement's lack of a "`modicum of bilaterality,'" wherein the employee's claims against the employer, but not the employer's claims
Applying these principles, we first observed that "the arbitration agreement was a contract of adhesion indisputably imposed as a condition of employment" and that "contract terms imposed as a condition of employment are particularly prone to procedural unconscionability." (Sonic I, supra, 51 Cal.4th at pp. 685-686.) "`[I]n 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.' (Armendariz, supra, 24 Cal.4th at p. 115.) Moreover, many employees may not give careful scrutiny to routine personnel documents that employers ask them to sign. (See Gentry, supra, 42 Cal.4th at p. 471.)
"Furthermore, for reasons suggested above, significant substantive unconscionability is also present. As explained, Berman hearing and posthearing procedures were designed to provide wage claimants with meritorious claims unique protections that lower the costs and risks of pursuing such claims, leveling a playing field that generally favors employers with greater resources and bargaining power. Requiring employees to forgo these protections as a condition of employment can only benefit the employer at the expense of the employee. Nor can we say, as also explained, that the benefits the employee gains from arbitration compensates for what he or she loses by forgoing the option of a Berman hearing.
"In sum, rather than being justified by `legitimate commercial needs' (see Armendariz, supra, 24 Cal.4th at p. 117), the main purpose of the Berman waiver appears to be for employers to gain an advantage in the dispute resolution process by eliminating the statutory advantages accorded to employees designed to make that process fairer and more efficient. We conclude the waiver is markedly one-sided and therefore substantively unconscionable. This substantive unconscionability, together with the significant element of procedural unconscionability, leads to the conclusion that the Berman waiver in the arbitration agreement at issue here is unconscionable." (Sonic I, supra, 51 Cal.4th at p. 686.)
Although we found the Berman waiver unconscionable and contrary to public policy, we did not invalidate the arbitration agreement. Instead, we held that an arbitration agreement may be enforced so long as arbitration is preceded by the option of a Berman hearing at the employee's request. If the employee chooses to have a Berman hearing, then the post-Berman hearing protections for employees would apply in arbitration: "A party to a Berman hearing seeking a de novo appeal via arbitration pursuant to a prior agreement rather than through a judicial proceeding would initially file an appeal in superior court pursuant to section 98.2, subdivision (a), together with a petition to compel arbitration. The superior court would determine whether the appeal is timely and whether it comports with all the statutory requirements, such as the undertaking requirement in subdivision (b). If so, and if the petition to compel arbitration is unopposed, or found to be meritorious, the trial court will grant the petition. The Labor Commissioner, pursuant to section 98.4, may then represent an eligible wage claimant in the arbitration proceeding. The one-way fee-shifting provisions of section 98.2, subdivision (c) will be enforced initially by the arbitrator, with such judicial review as may be appropriate." (Sonic I, supra, 51 Cal.4th at p. 676.)
Finally, we held that the FAA does not preempt this approach because "our conclusion that Berman waivers are contrary to public policy and unconscionable does not discriminate against arbitration agreements." (Sonic I, supra, 51 Cal.4th at p. 689.) "Rather, our conclusion that a Berman waiver is contrary to public policy and unconscionable is equally applicable whether the waiver appears within an arbitration agreement or independent of arbitration." (Ibid.) Below we discuss in greater detail Sonic I's analysis of the preemption issue after first examining the high court's decision in Concepcion.
Two months after Sonic I was filed, the United States Supreme Court issued its decision in Concepcion, supra, 563 U.S. ___ [131 S.Ct. 1740]. We now analyze the effect of that decision on Sonic I, beginning with a review of the state-law rule at issue in Concepcion.
In Discover Bank v. Superior Court (2005) 36 Cal.4th 148 [30 Cal.Rptr.3d 76, 113 P.3d 1100] (Discover Bank), this court confronted the question of whether provisions in arbitration agreements waiving class actions are unconscionable. We had previously approved of class arbitration as a means of "`"provid[ing] small claimants with a method of obtaining redress for claims
We further held that the FAA does not preempt this unconscionability rule. Reciting the applicable law, we said that "`the text of § 2 [of the FAA] provides the touchstone for choosing between state-law principles and the principles of federal common law envisioned by the passage of that statute: An agreement to arbitrate is valid, irrevocable, and enforceable, as a matter of federal law [citation], "save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2.... Thus state law, whether of legislative or judicial origin, is applicable if that law arose to govern issues concerning the validity, revocability, and enforceability of contracts generally. A state-law principle that takes its meaning precisely from the fact that a contract to arbitrate is at issue does not comport with this requirement of § 2. [Citations.] A court may not, then, in assessing the rights of litigants to enforce an arbitration agreement, construe that agreement in a manner different from that in which it otherwise construes nonarbitration agreements under state law. Nor may a court rely on the uniqueness of an agreement to arbitrate as a basis for a state-law holding that enforcement would be unconscionable, for this would enable the court to effect what ... the state legislature cannot.'" (Discover Bank, supra, 36 Cal.4th at pp. 164-165, quoting Perry v. Thomas (1987) 482 U.S. 483, 492-493, fn. 9 [96 L.Ed.2d 426, 107 S.Ct. 2520], italics added by Discover Bank.)
We reasoned that our unconscionability rule prohibiting class waivers is not preempted because it applies equally to arbitration and nonarbitration agreements: "[T]he principle that class action waivers are, under certain circumstances, unconscionable as unlawfully exculpatory is a principle of California law that does not specifically apply to arbitration agreements, but to contracts generally. In other words, it applies equally to class action
The high court in Concepcion held that the FAA preempts the unconscionability of class arbitration waivers in consumer contracts, thereby abrogating Discover Bank. Concepcion involved a class action filed in federal court alleging that AT&T engaged in fraud and false advertising by charging sales tax for phones it advertised as free. The value of the claim of the class representatives, Vincent and Liza Concepcion, was $30.22. AT&T moved to compel arbitration. The arbitration agreement provided that if an arbitration award was greater than AT&T's last written settlement offer, AT&T would pay at minimum $7,500 plus twice the plaintiff's attorney fees. The district court denied the motion to compel, holding that the class waiver made the arbitration agreement unconscionable under Discover Bank and that the $7,500 penalty did not cure the unconscionability because AT&T could always avoid the penalty by paying the face value of the claim. As the Ninth Circuit said in affirming the district court, "the maximum gain to a customer for the hassle of arbitrating a $30.22 dispute is still just $30.22." (Laster v. AT&T Mobility LLC (2009) 584 F.3d 849, 856.)
The Supreme Court reversed. While acknowledging that Discover Bank's unconscionability rule applies equally to arbitration and nonarbitration contracts, the high court concluded that more is required to avoid FAA preemption: "the inquiry becomes more complex when a doctrine normally thought to be generally applicable, such as duress or, as relevant here, unconscionability, is alleged to have been applied in a fashion that disfavors arbitration.... [A] court may not `rely on the uniqueness of an agreement to arbitrate as a basis for a state-law holding that enforcement would be unconscionable....' [Citation.]" (Concepcion, supra, 563 U.S. at p. ___ [131 S.Ct. at p. 1747].)
"An obvious illustration of this point," Concepcion said, "would be a case finding unconscionable or unenforceable as against public policy consumer arbitration agreements that fail to provide for judicially monitored discovery. The rationalizations for such a holding are neither difficult to imagine nor different in kind from those articulated in Discover Bank. A court might reason that no consumer would knowingly waive his right to full discovery, as this would enable companies to hide their wrongdoing. Or the court might
Such unconscionability rules, "`aimed at destroying arbitration' or `demanding procedures incompatible with arbitration,'" would contravene the FAA's "overarching purpose" of "ensur[ing] the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings." (Concepcion, supra, 563 U.S. at p. ___ [131 S.Ct. at p. 1748].) Similarly, the high court reasoned, "[r]equiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA." (Ibid.) According to Concepcion, classwide arbitration interferes with fundamental attributes of arbitration in several ways.
First, classwide arbitration "sacrifices the principal advantage of arbitration — its informality — and makes the process slower, more costly, and more likely to generate procedural morass than final judgment." (Concepcion, supra, 563 U.S. at p. ___ [131 S.Ct. at p. 1751].) "`In bilateral arbitration, parties forgo the procedural rigor and appellate review of the courts in order to realize the benefits of private dispute resolution: lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes.' [Citation.]" (Ibid.) Classwide arbitration, by contrast, is a slower process because "before an arbitrator may decide the merits of a claim in classwide procedures, he must first decide, for example, whether the class itself may be certified, whether the named parties are sufficiently representative and typical, and how discovery for the class should be conducted." (Ibid.)
Second, "class arbitration requires procedural formality" because of due process concerns. (Concepcion, supra, 563 U.S. at p. ___ [131 S.Ct. at p. 1751]; see ibid. ["The [American Arbitration Association's] rules governing class arbitrations mimic the Federal Rules of Civil Procedure for class
"Third, class arbitration greatly increases risks to defendants" and "is poorly suited to the higher stakes of class litigation" because of the lack of judicial review. (Concepcion, supra, 563 U.S. at p. ___ [131 S.Ct. at p. 1752].) "[I]n class-action arbitration huge awards (with limited judicial review) will be entirely predictable, thus rendering arbitration unattractive. It is not reasonably deniable that requiring consumer disputes to be arbitrated on a class-wide basis will have a substantial deterrent effect on incentives to arbitrate." (Id. at p. ___, fn. 8 [131 S.Ct. at p. 1752, fn. 8].)
The high court concluded: "Because it `stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,' [citation], California's Discover Bank rule is preempted by the FAA." (Concepcion, supra, 563 U.S. at p. ___ [131 S.Ct. at p. 1753].)
Sonic I explained that the present case was distinguishable from Preston because "the challenge is to a portion of the arbitration agreement — the Berman waiver — as contrary to public policy and unconscionable, rather than to the contract as a whole.... These cases are distinguished not merely because of the nature of the litigants' challenges, but also because of the fundamental differences between the two statutory regimes at issue. The statute in Preston, the TAA, merely lodges primary jurisdiction in the Labor Commissioner, and does not come with the same type of statutory protections as are found in the Berman hearing and posthearing procedures discussed above. In fact, notwithstanding Ferrer's argument that those in his position would be deprived of the Labor Commissioner's expertise (Preston, supra, 552 U.S. at p. 358), the Preston court recognized that section 1700.45 explicitly authorizes predispute agreements that allow parties to bypass the Labor Commissioner to resolve TAA issues through arbitration, albeit with certain conditions that could not lawfully be applied in that case (Preston, at p. 356). A predispute agreement that provides for such arbitration of TAA disputes, therefore, cannot be unconscionable or contrary to public policy. This is in marked contrast to the Berman hearing statutes, which have no comparable provision authorizing arbitration agreements that bypass the Labor Commissioner, and which we have construed as not permitting such agreements as a condition of employment." (Sonic I, supra, 51 Cal.4th at p. 692, fn. omitted.)
Moreno and the Labor Commissioner as amicus curiae contend that the delay contemplated here presents no obstacle to accomplishing the objectives of the FAA. In his briefing, Moreno says: "While the facilitation of streamlined proceedings is an important purpose of the FAA, it is unequivocally clear that requiring arbitration proceedings to go forward at once, without any postponement or delay, regardless of the existence of generally applicable state contract law grounds supporting a discrete challenge to the enforceability of an arbitration agreement, is not a `fundamental attribute' of arbitration. Thus, a defense of fraud, duress or unconscionability as to some specific provision of the arbitration agreement will require the postponement of arbitration while the validity of the defense is adjudicated. `If a party challenges the validity under § 2 of the precise agreement to arbitrate at issue, the federal court must consider the challenge before ordering compliance with that agreement under § 4.' (Rent-A-Center West, Inc. v. Jackson, 561 U.S. ___, ___ [177 L.Ed.2d 403, 130 S.Ct. 2772, 2778] (2010).) Thus, the policy of promoting streamlined arbitration proceedings must yield to the assertion of a ground for revocation of a contract under the § 2 savings clause. This is necessary because the § 2 savings clause recognizes that implementation of a state policy aimed at preventing the unfairness of enforcing an arbitration agreement procured by fraud or duress, or a provision within the agreement that is unconscionable or that violates public policy, trumps the purpose of facilitating streamlined arbitration proceedings."
In sum, we hold that Sonic I's rule prohibiting waiver of a Berman hearing is preempted by the FAA.
Although we conclude that the FAA preempts a state-law rule categorically requiring arbitration to be preceded by a Berman hearing, our holding does not fully resolve the unconscionability claim in this case. In his opposition to the petition to compel arbitration, Moreno stated as an affirmative defense that "[i]f the arbitration agreement between the parties is construed as absolutely prohibiting Respondent from exercising [his] statutory right to initially invoke the non-binding or administrative remedy afforded by the Labor Commissioner, then the arbitral scheme crafted by Petitioner fails to provide an arbitral forum in which employees can fully and effectively vindicate their statutory rights to recover unpaid wages, and is thus contrary to public policy, unconscionable and unenforceable." Because Sonic I concluded categorically that arbitration must be preceded by a Berman hearing and that the petition to compel arbitration was premature, we had no occasion to address whether, without a Berman hearing, Moreno can vindicate his right to recover unpaid wages under this particular arbitral scheme. Moreover, we did not address whether any barrier to vindicating such rights would make the arbitration agreement unconscionable or otherwise unenforceable under California law and, if so, whether such a rule would be preempted by the FAA. We turn now to these questions.
What is new is that Concepcion clarifies the limits the FAA places on state unconscionability rules as they pertain to arbitration agreements. It is well established that such rules must not facially discriminate against arbitration and must be enforced evenhandedly. Concepcion goes further to make clear that such rules, even when facially nondiscriminatory, must not disfavor arbitration as applied by imposing procedural requirements that "interfere[] with fundamental attributes of arbitration," especially its "`lower costs, greater efficiency and speed, and the ability to choose expert adjudicators to resolve specialized disputes.' [Citation.]" (Concepcion, supra, 563 U.S. at pp. ___, ___ [131 S.Ct. at pp. 1748, 1751].) As the high court explained, if facial neutrality or evenhanded enforcement were the only principles limiting the scope of permissible state law defenses to arbitration, then a state court could — on grounds of unconscionability or public policy — compel the adoption of an arbitration procedure that would be arbitration in name only. It could impose judicially monitored discovery, evidentiary rules, jury trials, or other procedures that mimic court proceedings, and thereby undermine the FAA's purpose of encouraging arbitration as an efficient alternative to litigation. (563 U.S. at p. ___ [131 S.Ct. at p. 1747].)
Moreover, there are other ways an arbitration agreement may be unconscionable that have nothing to do with fundamental attributes of arbitration. In Little, for example, we found unconscionable a $50,000 threshold for an arbitration appeal that decidedly favored defendants in employment contract disputes. (Little, supra, 29 Cal.4th at pp. 1071-1074.) In Harper v. Ultimo (2003) 113 Cal.App.4th 1402, 1407 [7 Cal.Rptr.3d 418], the court found unconscionable an arbitration agreement with a damages limitation clause under which "the customer does not even have the theoretical possibility he or she can be made whole." And in Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 799-800 [137 Cal.Rptr.3d 773] (Ajamian), the court found unconscionable an arbitration agreement that, among other things, "impos[ed] upon [the employee] the obligation to pay [the employer's] attorney fees if [the employer] prevails in the proceeding, without granting her the right to recoup her own attorney fees if she prevails."
Consider also the form of unconscionability identified in Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77 [7 Cal.Rptr.3d 267] (Gutierrez). There, the plaintiff entered into an automobile lease agreement with the defendant automobile dealer. He subsequently sued the dealer over alleged fraud in the transaction. The adhesive agreement contained an inconspicuous arbitration clause. (Id. at pp. 83-84.) The Court of Appeal found that, based on the American Arbitration Association rules in effect at the time the defendant moved to compel arbitration, the plaintiff would have had to pay $8,000 in administrative fees to initiate the arbitration. (Id. at pp. 90-91.) It was undisputed that such fees exceeded the plaintiff's ability to pay. (Id. at p. 91.) In holding this aspect of the arbitration agreement unconscionable, Gutierrez said: "We conclude that where a consumer enters into an adhesive contract that mandates arbitration, it is unconscionable to condition that process on the consumer posting fees he or she cannot pay. It is self-evident that such a provision is unduly harsh and one-sided, defeats the expectations of the non-drafting party, and shocks the conscience. While arbitration may be within the reasonable expectations of consumers, a process that builds prohibitively expensive fees into the arbitration process is not. (See Patterson v. ITT Consumer Financial Corp. [(1993) 14 Cal.App.4th 1659, 1665 [18 Cal.Rptr.2d 563]].) To state it simply: it is substantively unconscionable to require a consumer to give up the right to utilize the judicial system,
The unconscionability doctrine we have stated above is not preempted by the FAA. In holding that an employee's surrender of Berman protections in their totality may be considered as a factor in determining whether an arbitration agreement is unconscionable, our doctrine does not facially discriminate against arbitration. It applies equally to arbitration and nonarbitration agreements that require employees to forgo the Berman protections in resolving wage claims. In addition, our unconscionability doctrine as applied does not pose an obstacle to the achievement of the FAA's objectives as construed in Concepcion. Because the Berman statutes promote the very objectives of "informality," "lower costs," "greater efficiency and speed," and use of "expert adjudicators" that the high court has deemed "fundamental attributes of arbitration" (Concepcion, supra, 563 U.S. at pp. ___-___ [131 S.Ct. at pp. 1748, 1751]; see Cuadra, supra, 17 Cal.4th at p. 858), the case-by-case application of unconscionability doctrine to agreements that require employees to forgo such benefits will, if anything, tend to promote the FAA's objectives rather than lead to any increase in cost, procedural rigor, complexity, or formality. As noted, there are potentially many ways to design arbitration, consistent with its fundamental attributes, so that it is affordable and accessible for wage claimants. Sonic argues that the arbitration process at issue here fits this description, and Sonic will have the opportunity on remand to provide evidence in support of its contention.
The distinction between state-law rules that undermine fundamental attributes of arbitration and state-law rules that do not may be further elucidated by considering an example drawn from the facts of Concepcion. As noted, Concepcion held that because class proceedings undermine arbitration's fundamental attributes of informality and efficiency, the FAA preempts a state unconscionability rule forbidding waiver of class proceedings. But Concepcion did not rule out other ways to enable consumers "to prosecute small-dollar claims that might otherwise slip through the legal system." (Concepcion, supra, 563 U.S. at p. ___ [131 S.Ct. at p. 1753].) The high court noted that the arbitration agreement at issue there "provides that AT&T will pay claimants a minimum of $7,500 and twice their attorney's fees if they obtain an arbitration award greater than AT&T's last settlement offer" and then observed that "[t]he District Court found this scheme sufficient to provide incentive for the individual prosecution of meritorious claims that are not immediately settled, and the Ninth Circuit admitted that aggrieved customers who filed claims would be `essentially guarantee[d]' to be made whole, [citation]." (Ibid.)
Suppose that, in light of Concepcion, a state legislature seeking to protect small-dollar claimants were to enact a generally applicable, unwaivable statute similar to the provision just described, requiring a defendant to pay a penalty plus attorney fees if a plaintiff with a low-value claim obtains an award through litigation or arbitration greater than the defendant's last settlement offer. Nothing in Concepcion suggests that such a statute — which is designed to achieve the same objective as a rule forbidding class waivers but does not interfere with fundamental attributes of arbitration — would be preempted by the FAA. Moreover, the fact that the statute would render invalid an arbitration (or nonarbitration) agreement at odds with the penalty scheme — and thus leave the parties to their usual rights and remedies under state law, including class proceedings — does not mean that the statute has somehow circumvented the FAA's preemption of state-law rules forbidding class waivers.
In this case, the types of benefits that would otherwise apply are ones designed to promote, not undermine, the speed, economy, informality, and efficiency of dispute resolution. Our unconscionability analysis does not pose an obstacle to the FAA's objectives any more than if the Legislature were to enact a statute requiring any dispute resolution mechanism, including arbitration, used in lieu of the Berman procedures to have features that mitigate risks and costs for wage claimants, so long as those features do not interfere with fundamental attributes of arbitration. Although Concepcion says state law cannot require a procedure that undermines fundamental attributes of arbitration "even if it is desirable for unrelated reasons" (Concepcion, at p. ___ [131 S.Ct. at p. 1753]), this does not mean that the FAA preempts generally applicable state laws that do not undermine fundamental attributes of arbitration.
While this case was pending before our court, the United States Supreme Court decided another arbitration case, American Express Co. v. Italian Colors Restaurant (2013) 570 U.S. ___ [186 L.Ed.2d 417, 133 S.Ct. 2304] (Italian Colors). We requested supplemental briefing from the parties on the significance of Italian Colors to the present dispute. Having reviewed the high
In Italian Colors, the owner of a small restaurant sought to bring a class action suit alleging that American Express had violated the Sherman Act (15 U.S.C. § 1 et seq.) by "us[ing] its monopoly power in the market for charge cards to force merchants to accept credit cards at rates approximately 30% higher than the fees for competing credit cards." (Italian Colors, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2308].) American Express moved to compel individual, bilateral arbitration pursuant to a standardized agreement with an express class action waiver. In response, the plaintiff merchants submitted a declaration from an economist showing that the cost of an expert analysis necessary to prove the antitrust claims would far exceed the maximum recovery for any individual plaintiff. On that basis, the plaintiffs argued that individual arbitration would be prohibitively costly and that enforcing the class action waiver would prevent them from effectively vindicating their rights under the Sherman Act. The high court rejected the plaintiffs' argument and upheld the arbitration agreement. (570 U.S. at p. ___ [133 S.Ct. at p. 2312].)
The high court explained that the principle that the FAA requires courts to enforce arbitration agreements according to their terms "holds true for claims that allege a violation of a federal statute, unless the FAA's mandate has been `"overridden by a contrary congressional command."'" (Italian Colors, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2309].) The high court found no contrary congressional command evident in the Sherman Act, observing that "the antitrust laws do not guarantee an affordable procedural path to the vindication of every claim." (570 U.S. at p. ___ [133 S.Ct. at p. 2309]; see id. at p. ___ [133 S.Ct. at p. 2309] ["The antitrust laws do not `evinc[e] an intention to preclude a waiver' of class-action procedure. [Citation.]"].) Further, the high court said: "Nor does congressional approval of [Federal Rules of Civil Procedure, rule] 23 establish an entitlement to class proceedings for the vindication of statutory rights." (Id. at p. ___ [133 S.Ct. at p. 2309].)
The high court then addressed the plaintiffs' contention that "a judge-made exception to the FAA ... serves to harmonize competing federal policies by allowing courts to invalidate agreements that prevent the `effective vindication' of a federal statutory right. Enforcing the waiver of class arbitration bars effective vindication, [the plaintiffs] contend, because they have no economic incentive to pursue their antitrust claims individually in arbitration." (Italian Colors, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2310].) According to the high court, the "effective vindication" exception "finds its origin in the desire to prevent `prospective waiver of a party's right to pursue statutory remedies,' [(Mitsubishi Motors, supra, 473 U.S. at p. 637, fn. 19)] (emphasis
In any event, neither the federal antitrust laws nor Federal Rules of Civil Procedure, rule 23 (28 U.S.C.) "establish[ed] an entitlement to class proceedings for the vindication of [the] statutory rights" at issue in Italian Colors. (Italian Colors, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2309].) According to the high court, the class waiver in Italian Colors could not have conflicted with other federal policy because "[n]o contrary congressional command requires us to reject the waiver of class arbitration here." (Ibid.) Here, by contrast, the Legislature has "establish[ed] an entitlement" (ibid.) to a specific set of protections in order to provide lay persons with an accessible, informal, and affordable mechanism for resolving wage claims. Whereas the class
Similarly, the high court's discussion of the "effective vindication" exception in Italian Colors — a doctrine that guides the harmonization of federal statutes — does not affect our analysis in the present case. In stating that "the fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy" (Italian Colors, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2311]), the high court was proceeding on the premise, established earlier in its opinion, that the "right to pursue" the antitrust remedy in that case encompassed no specific entitlement under the antitrust laws or Federal Rules of Civil Procedure, rule 23 (28 U.S.C.) to a class proceeding or to "an affordable procedural path to the vindication of every claim" (Italian Colors, at p. ___ [133 S.Ct. at p. 2309]). Here, by contrast, the Legislature adopted the Berman protections specifically to provide a "speedy, informal, and affordable method of resolving wage claims." (Cuadra, supra, 17 Cal.4th at p. 858.) Whereas in Italian Colors "the individual suit that was considered adequate to assure `effective vindication' of a federal right before adoption of class-action procedures did not suddenly become `ineffective vindication' upon their adoption" (Italian Colors, at p. ___ [133 S.Ct. at p. 2311]), here the Legislature enacted the Berman protections "as a means of affording an employee with a meritorious wage claim certain advantages, chiefly designed to reduce the costs and risks of pursuing a wage claim, recognizing that such costs and risks could prevent a theoretical right from becoming a reality" (Sonic I, supra, 51 Cal.4th at p. 679).
Toward the end of its opinion in Italian Colors, the high court added this paragraph concerning Concepcion: "Truth to tell, our decision in [Concepcion] all but resolves this case. There we invalidated a law conditioning enforcement of arbitration on the availability of class procedure because that law `interfere[d] with fundamental attributes of arbitration.' 563 U. S., at ___ [131 S.Ct. at p. 1748]. `[T]he switch from bilateral to class arbitration,' we said, `sacrifices the principal advantage of arbitration — its informality — and makes the process slower, more costly, and more likely to generate procedural morass than final judgment.' Id., at ___ [131 S.Ct. at p. 1751]. We specifically rejected the argument that class arbitration was necessary to prosecute claims `that might otherwise slip through the legal system.' Id., at ___ [131 S.Ct. at p. 1753]." (Italian Colors, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2312].) The high court ended this paragraph with a footnote responding to the dissent: "In dismissing [Concepcion] as a case involving pre-emption and not the effective-vindication exception, the dissent ignores what that case established — that the FAA's command to enforce arbitration agreements trumps any interest in ensuring the prosecution of low-value
As indicated, the high court understood the result in Italian Colors to be entailed by Concepcion, and one can see why. Concepcion upheld a class arbitration waiver in the face of a contrary unconscionability rule because the rule interfered with fundamental attributes of arbitration. In light of Concepcion's holding that class procedures interfere with fundamental attributes of arbitration, it is unsurprising that the high court in Italian Colors upheld a class waiver in the face of no contrary legislative command. But the logic that unites Italian Colors and Concepcion does not speak to whether the FAA preempts state-law protections for wage claimants that, unlike class procedures, do not interfere with fundamental attributes of arbitration. The high court's assertion in footnote 5 of Italian Colors that Concepcion "established ... that the FAA's command to enforce arbitration agreements trumps any interest in ensuring the prosecution of low-value claims" (Italian Colors, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2312, fn. 5]) must be read in the context of the paragraph that precedes it. Concepcion held that the FAA preempts a state-law rule that interferes with fundamental attributes of arbitration "even if [the rule] is desirable for unrelated reasons," such as facilitating the prosecution of "small-dollar claims that might otherwise slip through the legal system." (Concepcion, supra, 563 U.S. at p. ___ [131 S.Ct. at p. 1753].) Concepcion did not hold that the FAA preempts state-law rules designed to facilitate prosecution of small-dollar claims even when the rules do not interfere with fundamental attributes of arbitration, and we decline to infer such a broad expansion of Concepcion's holding from a footnote in Italian Colors.
Finally, the high court in Italian Colors ended its opinion by decrying prearbitration litigation over the expected costs of pursuing a particular legal claim or theory: "Such a preliminary litigating hurdle would undoubtedly destroy the prospect of speedy resolution that arbitration in general and bilateral arbitration in particular was meant to secure. The FAA does not sanction such a judicially created superstructure." (Italian Colors, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2312].) Again, the high court disapproved of "[s]uch a preliminary litigating hurdle" (ibid.) in a statutory context where no specific legislative mandate sought to ensure the affordability of pursuing the antitrust claim at issue there. The high court had no occasion to consider a statutory context in which specific legislation does seek to ensure the affordability of pursuing a particular kind of claim. Nor did the high court in Italian Colors consider the savings clause in section 2 of the FAA (9 U.S.C.
Justice Chin dissents from our treatment of Moreno's unconscionability claim on several grounds. To a significant extent, his dissent relitigates issues that this court has already decided to the contrary. And his only new argument — that the FAA preempts the unconscionability rule we set forth today — is unpersuasive for reasons we have discussed above and further elucidate below.
As an initial matter, Justice Chin says Moreno forfeited his right to litigate the unconscionability issue. The dissent acknowledges that Moreno asserted in the trial court, as a defense to enforcement of the arbitration agreement, that the agreement was unconscionable because it "`fails to provide an arbitral forum in which employees can fully and effectively vindicate their statutory rights to recover unpaid wages.' " (Conc. & dis. opn., post, at pp. 1175-1176.) The dissent insists, nevertheless, that Moreno's unconscionability claim should be deemed forfeited because "he did nothing further in the trial court to pursue either this or any other unconscionability defense." (Id. at p. 1176.) But a similar argument failed to persuade the court in Sonic I. (See Sonic I, supra, 51 Cal.4th at p. 685, fn. 10; id. at p. 713 (conc. & dis. opn. of Chin, J.).) Moreno raised the unconscionability defense and then chose, given the state of the law at the time, to focus in the trial court on his argument that waiver of a Berman hearing was per se unconscionable and contrary to public policy. Moreno will now have the opportunity to develop his unconscionability defense in light of the principles we articulate today.
The core of Justice Chin's dissent is his contention that the arbitration agreement at issue here is not unconscionable. He advances several arguments in support of this claim.
Justice Chin says we have improperly relaxed the unconscionability standard by using the phrase "unreasonably one-sided" instead of "so one-sided as to shock the conscience." (Conc. & dis. opn., post, at p. 1178.) Justice Corrigan also favors the term "shock the conscience." (Conc. opn., post, at p. 1172.) But an examination of the case law does not indicate that "shock the conscience" is a different standard in practice than other formulations or that it is the one true, authoritative standard for substantive unconscionability, exclusive of all others.
In Armendariz, the seminal California case to examine unconscionability in the context of adhesive arbitration agreements, we relied in part on A & M Produce, supra, 135 Cal.App.3d 473, to elucidate general principles of unconscionability. (See Armendariz, supra, 24 Cal.4th at pp. 113-114.) A & M Produce, which predates our arbitration cases, did not involve arbitration and made no reference to the "shock the conscience" standard. Upon reviewing case law from a variety of jurisdictions, A & M Produce stated that "`[u]nconscionability has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.'" (A & M Produce, at p. 486, quoting Walker-Thomas Furniture, supra, 350 F.2d at p. 449.)
Some Courts of Appeal, starting with California Grocers Assn. v. Bank of America (1994) 22 Cal.App.4th 205, 214-215 [27 Cal.Rptr.2d 396], have criticized the term "unreasonable" as overly subjective and have instead used the "shock the conscience" standard. But no uniformity has emerged in our lower courts. Some Courts of Appeal have used the "shock the conscience" standard in arbitration cases (see, e.g., Bigler v. Harker School (2013) 213 Cal.App.4th 727, 736 [153 Cal.Rptr.3d 78]; Mission Viejo Emergency Medical Associates v. Beta Healthcare Group (2011) 197 Cal.App.4th 1146, 1158-1159 [128 Cal.Rptr.3d 330]; Cotchett, Pitre & McCarthy v. Universal Paragon Corp. (2010) 187 Cal.App.4th 1405, 1419 [114 Cal.Rptr.3d 781]), while others have not (see, e.g., Zullo v. Superior Court (2011) 197 Cal.App.4th 477, 484 [127 Cal.Rptr.3d 461]; Olvera v. El Pollo Loco, Inc. (2009) 173 Cal.App.4th 447,
Next, Justice Chin argues what neither Sonic nor its amici curiae contend: that the Berman procedures do not actually benefit employees. He claims that because the Labor Commissioner may exercise her discretion in deciding whether to conduct Berman hearings, any value of the Berman procedure to Moreno is "entirely speculative." (Conc. & dis. opn., post, at pp. 1181, 1182.) Of course, no one can foresee with total certainty whether a particular employee's application for a Berman hearing will be granted, but that hardly means the Berman procedures have merely speculative value ex ante. If the Berman procedures were, in practice, rarely used and generally unavailable to the employee, the significance of waiving such procedures would be diminished. But the parties have not suggested, nor does the record before us indicate, that such is the case.
To the extent Justice Chin suggests that the Berman process is not well designed to facilitate prompt and enforceable resolution of wage claims, we have repeatedly concluded otherwise. In Cuadra, the court unanimously said: "The Berman hearing procedure is designed to provide a speedy, informal, and affordable method of resolving wage claims." (Cuadra, supra, 17 Cal.4th at p. 858.) In Lolley, the court unanimously said the fee-shifting provision in
To the extent Justice Chin suggests that the Berman protections, despite their design, do not actually achieve their intended purpose, his contention is unsupported by the record before us. Although it may take several months or even a year to resolve a wage claim through the Berman process, the record contains no evidence, and the dissent cites none, that enables us to compare this timeframe with the time required to resolve a similar claim through arbitration of the sort contemplated in the agreement here. Such evidence, if any, may be considered on remand. In addition, Justice Chin notes our statement in Gentry that "... Berman hearings may result in no cost savings to the employee" because of the possibility that "a losing employer has a right to a trial de novo in superior court ...." (Gentry, supra, 42 Cal.4th at p. 464.) But the court made that statement in the context of concluding that "... Berman hearings are neither effective nor practical substitutes for class action or arbitration." (Id. at p. 465.) The fact that thousands of individual Berman hearings would not result in cost savings as compared to a single class proceeding (id. at p. 464) sheds no light on whether Berman hearings would result in cost savings as compared to individual arbitrations of the same wage claims under the litigation-like rules set forth in the agreement in this case.
The rest of Justice Chin's dissent provides similarly scant support for its disparagement of the "asserted benefits of the Berman procedure" as "speculative." (Conc. & dis. opn., post, at p. 1182.) Although the mandatory assessment of costs and attorney fees against the unsuccessful party in an appeal applies to the employee as well as the employer, the statute's asymmetric definition of success plainly works in the employee's favor. (§ 98.2, subd. (c) ["An employee is successful if the court awards an amount greater than zero."].) And even if the benefit of this provision was not available when Moreno signed his agreement in July 2002 — a fact relevant to the unconscionability analysis on remand — there is no question that the benefit has been available since July 2003 (Stats. 2003, ch. 93, § 2, p. 790) and helps to "reduc[e] the costs and delays of prolonged disputes" by deterring meritless appeals (Lolley, supra, 28 Cal.4th at p. 376). Further, although the Labor Commissioner has discretion to stay an award for good cause, it is unclear how this detracts from the Labor Commissioner's statutory duty to "make every reasonable effort to ensure that judgments are satisfied." (§ 98.2, subd. (i).) For an employee seeking to collect a judgment, it surely helps to have the Labor Commissioner on your side. Finally, with
In sum, the Berman procedures taken together are the Legislature's solution to the real-world problems employees face in recovering wages owed. The Legislature has structured a set of informal procedures and incentives that make it more likely employees will be able to recover wages without incurring substantial attorney fees or the risk of liability for an employer's attorney fees. The Legislature has also enacted provisions to deter meritless appeals of wage claims through a trial de novo in superior court and to ensure that employees will be able to actually collect a favorable judgment. The dissent does not persuade us to second-guess the efficacy of this legislative solution or to depart from this court's consistent understanding of the Berman statutes' benefits. Because we see no basis to conclude that the benefits of the Berman procedures are "entirely speculative" (conc. & dis. opn., post, at pp. 1181, 1182) or that "arbitration is more streamlined than the Berman process ..." in this and every case (id. at p. 1187), we decline to reject Moreno's claim of unconscionability on such grounds and instead direct the trial court on remand to consider Moreno's claim in light of any relevant evidence that the parties may submit.
Justice Chin's other reasons for challenging our unconscionability analysis are likewise unpersuasive. He contends that our unconscionability rule is "hopelessly vague, uncertain, and subjective" because we do not define the terms "accessible," "affordable," "low-cost," "speedy," or "effective." (Conc. & dis. opn., post, at p. 1179.) But the principles we set forth today are hardly anomalous insofar as they are not bright-line formulations. As this court long ago stated in determining "reasonable water use" in a water rights case: "There would seem to be no more difficulty in ascertaining what is a reasonable use of water than there is in determining probable cause, reasonable doubt, reasonable diligence, preponderance of evidence, a rate that is just and reasonable, public convenience and necessity, and numerous other problems which in their nature are not subject to precise definition but which tribunals exercising judicial functions must determine." (Gin S. Chow v. City of Santa Barbara (1933) 217 Cal. 673, 706 [22 P.2d 5].) Many other examples abound. This court in Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 187 [83 Cal.Rptr.2d 548,
Nor is our approach inconsistent with Little, in which we said that, "[w]ithout more," arbitration conducted with many of the formalities of litigation is not unconscionably one-sided. (Little, supra, 29 Cal.4th at p. 1075, fn. 1.) We reaffirm that such arbitration is not per se unconscionable or contrary to public policy, and as explained above, there are many ways to structure arbitration to facilitate accessible and affordable resolution of wage disputes. (See ante, at pp. 1147-1148.) Our approach to unconscionability insists only that arbitration be so structured, and whether the arbitral process in this case, which includes the litigation-like formalities specified in the arbitration agreement, puts Moreno at such a disadvantage as to be unconscionable is a question to be determined on remand.
In addition to the concerns discussed above, Justice Chin argues that our approach to unconscionability violates the FAA as interpreted in Concepcion and Italian Colors. Again, the dissent's contention does not withstand scrutiny.
The dissent's fundamental error is its characterization of Concepcion's holding in the following terms: "The FAA, as the high court has construed it, precludes state courts from finding an arbitration provision unconscionable based on the need to protect `small-dollar claims that might otherwise slip through the legal system,' even though that goal may be `desirable.' (Concepcion, supra, 563 U.S. at p. ___ [131 S.Ct. at p. 1753].) It `trumps any interest in ensuring the prosecution of low-value claims' and `favor[s] the absence of litigation when that is the consequence of' following its `command' to enforce arbitration agreements `according to their terms.' (Italian
If the broad principle that arbitration agreements must be enforced according to their terms, notwithstanding the desirability of state laws protecting small-dollar claims, were the decisive principle in Concepcion, then why would the high court have bothered to spill so much ink explaining why class proceedings are incompatible with "fundamental attributes of arbitration"? (Concepcion, supra, 563 U.S. at pp. ___ - ___ [131 S.Ct. at pp. 1748-1753].) That entire discussion would have been unnecessary on Justice Chin's account of Concepcion. The holding of Concepcion is that "[r]equiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA." (Id. at p. ___ [131 S.Ct. at p. 1748], italics added.) Italian Colors, another case involving a class waiver, restated Concepcion's holding in exactly the same terms: "There [(in Concepcion)] we invalidated a law conditioning enforcement of arbitration on the availability of class procedure because that law `interfere[d] with fundamental attributes of arbitration.' 563 U. S. at ___ [131 S.Ct. at p. 1748]." (Italian Colors, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2312], italics added.) When footnote 5 of Italian Colors is read together with the paragraph in the main text that precedes it, the high court's statement that Concepcion established that "the FAA's command to enforce arbitration agreements trumps any interest in ensuring the prosecution of low-value claims" means that no such interest can save a state law from FAA preemption where "that law `interfere[s] with fundamental attributes of arbitration.'" (Italian Colors, at p. ___ & fn. 5 [133 S.Ct. at p. 2312 & fn. 5]; see ante, at p. 1156.)
Thus, Concepcion expressly states, and Italian Colors expressly confirms, that the dispositive rationale for Concepcion's preemption holding is that class proceedings interfere with "fundamental attributes of arbitration." (Concepcion, supra, 563 U.S. at p. ___ [131 S.Ct. at p. 1748]; see Italian Colors, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2312].) Remarkably, however, Justice Chin never mentions the high court's sustained focus on "fundamental attributes of arbitration" in his rendition of Concepcion's reasoning and result, and even affirmatively disclaims the relevance of such fundamental attributes in characterizing the principle established by Concepcion. (Conc. & dis. opn., post, at pp. 1185-1187, 1188-1189.)
Justice Chin does claim that "arbitration is more streamlined than the Berman process ..." and that our approach to unconscionability "is likely to produce procedures that are less efficient, more costly, more formal, and more time consuming than arbitration." (Conc. & dis. opn., post, at p. 1187.) But,
Instead of coming to grips with Concepcion's core rationale, Justice Chin's dissent assigns decisive weight to the general proposition that the FAA's principal purpose is to ensure enforcement of arbitration agreements "`according to their terms.'" (Conc. & dis. opn., post, at pp. 1186, 1187, 1189, 1191.) To be sure, this proposition is well established in the high court's FAA precedents. (See, e.g., Italian Colors, supra, 570 U.S. at p. ___, fn. 5 [133 S.Ct. at p. 2312, fn. 5]; Concepcion, supra, 563 U.S. at p. ___ [131 S.Ct. at p. 1748].) But the dissent attributes to the FAA a purpose to "pursue that broadest goal only at the expense of harming other values that the legislature deems important. After all, no statute ... pursues its `broad purpose' at all costs." (Scalia & Garner, Reading Law: The Interpretation of Legal Texts (2012) p. 21, citing Pension Benefit Guaranty Corp. v. The LTV Corp. (1990) 496 U.S. 633, 647 [110 L.Ed.2d 579, 110 S.Ct. 2668] ["`[I]t frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be the law.' [Citation.]" (italics added)].) The FAA itself makes explicit the other values at play. The statute's saving clause says an arbitration agreement may be held unenforceable "upon such grounds as exist at law or in equity for the revocation of any contract" (9 U.S.C. § 2), and the high court in Concepcion, after quoting this saving clause, recognized that the FAA "permits agreements to arbitrate to be invalidated by `generally applicable contract defenses, such as fraud, duress,
Under the dissent's sweeping view of FAA preemption, no unconscionability rule may take into account the surrender of statutory protections for certain claimants, whether or not those protections interfere with fundamental attributes of arbitration. Waiver of fee-shifting provisions favoring particular litigants (see Serpa, supra, 215 Cal.App.4th at pp. 709-710 [discussing fee shifting under FEHA]; Ajamian, supra, 203 Cal.App.4th at p. 800 [discussing § 1194]) or statutory protections for small-dollar claims modeled on the very arbitration agreement that the high court discussed approvingly in Concepcion (see ante, at p. 1150) must apparently count for nothing in a court's assessment of unconscionability. It is this approach, not ours, that "appears to go far beyond" the high court's pronouncements on FAA preemption. (Conc. & dis. opn., post, at p. 1186.) For the high court has never suggested that unconscionability doctrine must disavow any concerns about cost or other features of arbitration that prevent effective resolution of arbitral disputes.
Justice Chin also asserts, using various formulations, that our approach to unconscionability discriminates against arbitration. (Conc. & dis. opn., post, at p. 1190 ["`construe[s] [an arbitration] agreement in a manner different from that in which [a court] otherwise construes nonarbitration agreements under state law'"]; ibid. ["crafts different unconscionability rules for arbitration agreements"]; id. at pp. 1191-1192 ["`disfavors arbitration'" and "`derive[s] [its] meaning from the fact that an agreement to arbitrate is at issue'"].) The main problem, the dissent says, is that our unconscionability rule is "not a ground that exists at law or in equity for the revocation of any contract, but is ... merely a ground that exists for the revocation of arbitration provisions in contracts subject to the Berman statutes or to other statutes that `legislatively' afford to `a particular class ... specific protections in order to mitigate the risks and costs of pursuing certain types of claims.'" (Id. at pp. 1189-1190.)
Under Perry and Southland, the FAA clearly preempts a state unconscionability rule that establishes an unwaivable right to litigate particular claims by categorically deeming agreements to arbitrate such claims unenforceable. That is what the high court meant by its reference to "[a] state-law principle that takes its meaning precisely from the fact that a contract to arbitrate is at issue." (Perry, supra, 482 U.S. at p. 492, fn. 9.) The unconscionability rule we set forth today is not at all similar to the preempted state laws in Perry and Southland or their functional equivalents in unconscionability doctrine. Whereas the state-law rules in those cases overtly discriminated against arbitration in favor of litigation of certain claims, thereby rendering contracts to arbitrate such claims entirely enforceable, our unconscionability rule fully contemplates the enforceability of agreements to resolve wage disputes through arbitration in lieu of the Berman process. Our rule requires only that wage claimants have an accessible and affordable mechanism for dispute
Cantil-Sakauye, C. J., Kennard, J., Werdegar, J., and Corrigan, J., concurred.
I concur in the result and much of the analysis in the majority opinion, but I disagree with its failure to articulate a clear standard for assessing the unconscionability of arbitration terms in employment agreements.
The majority refers to several formulations but does not settle on a test for unconscionability. It describes an analysis in which the trial court weighs the Berman advantages waived against the benefits of arbitration to decide if the agreement is "unreasonably one-sided." (Maj. opn., ante, at pp. 1146, 1157.) Justice Chin characterizes this approach as interest weighing and criticizes it as insufficiently deferential to arbitration. Whereas the majority would remand for the trial court to determine unconscionability, Justice Chin would have us decide here that the agreement is not unconscionable.
I agree with Justice Chin that the proper test for determining unconscionability here is whether the terms are "`so one-sided as to "shock the conscience."'" (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 246 [145 Cal.Rptr.3d 514, 282 P.3d 1217].) Courts are not free to alter terms to which the contracting parties agreed simply because they find the terms unreasonable or ill advised. (American Software, Inc. v. Ali (1996) 46 Cal.App.4th 1386, 1391 [54 Cal.Rptr.2d 477].) The unconscionability defense requires a much stronger showing of unfairness. The majority opinion mentions the "shock the conscience" standard, but only as one of several formulations. (See maj. opn., ante, at p. 1144.) In my view, we should provide clarity here. Courts of Appeal have successfully applied the "shock the conscience" standard to decide whether contractual employment arbitration terms are substantively unconscionable. (See, e.g., Peng v. First Republic Bank (2013) 219 Cal.App.4th 1462; Serpa v. California Surety Investigations, Inc. (2013) 215 Cal.App.4th 695, 703, 710 [155 Cal.Rptr.3d 506].) We should settle on this clear test. Under the "shock the conscience" standard, arbitration provisions are not unconscionable simply because their enforcement will require the employee to forego Berman procedures.
However, unconscionability is a fact-specific defense. Appellate courts are at a disadvantage when the question is not fleshed out in the trial court. Thus,
It should be stressed that our decision today does not require trial courts to adopt a new procedure or analytical approach when an unconscionability defense concerns an arbitration provision in an employment contract. Considerations outlined in the majority opinion may be relevant to such an analysis, but lower courts retain discretion to weigh these considerations as appropriate in each particular case. Today's decision holds only that unconscionability remains a defense to enforcement of an arbitration clause in an employment contract and that, while the relinquishment of Berman procedures is one factor to be weighed in considering unconscionability, this factor alone is not sufficient to support an unconscionability finding.
With this understanding, I join the majority's decision.
In Sonic-Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659, 669 [121 Cal.Rptr.3d 58, 247 P.3d 130] (Sonic I), a bare four-to-three majority of this court held that the arbitration provision here at issue is both contrary to our state's public policy and unconscionable — and therefore unenforceable — to the extent it precludes Frank Moreno from pursuing an administrative hearing — known as a "Berman hearing" — before submitting his claim for vacation pay to arbitration. I agree with the majority's conclusion that the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.) preempts Sonic I's public policy rationale. However, I disagree with the majority's decision to remand this case on the issue of unconscionability. As I explain below, we should reject Moreno's unconscionability claim for two reasons: (1) he forfeited it by failing to raise and pursue it below and (2) he has not met, and cannot meet, his burden of showing unconscionability. I also disagree with the majority's advisory opinion regarding the unconscionability principles the trial court should apply on remand. In my view, those principles are both contrary to state law and invalid under — and thus preempted by — the FAA. I dissent from this aspect of the majority's opinion and from the judgment.
Frank Moreno was an employee of Sonic-Calabasas A, Inc. (Sonic). In December 2006, after voluntarily ending his employment, he filed a wage claim with the Labor Commissioner pursuant to Labor Code section 98
In February 2007, Sonic filed in the superior court a petition to compel arbitration of Moreno's claim and to dismiss his pending administrative action. It relied on the broad and comprehensive arbitration provision in an agreement Moreno signed on July 14, 2002, which provides in relevant part: "I ... acknowledge that [Sonic] utilizes a system of alternative dispute resolution that involves binding arbitration to resolve all disputes that may arise out of the employment context. Because of the mutual benefits (such as reduced expense and increased efficiency) which private binding arbitration can provide both [Sonic] and myself, both [Sonic] and I agree that any claim, dispute, and/or controversy (including, but not limited to, any claims of discrimination and harassment ...) that either I or [Sonic] ... may have against the other which would otherwise require or allow resort to any court or other governmental dispute resolution forum arising from, related to, or having any relationship or connection whatsoever with my seeking employment with, employment by, or other association with [Sonic], whether based on tort, contract, statutory, or equitable law, or otherwise, (with the sole exception of claims arising under the National Labor Relations Act ..., claims for medical and disability benefits under the California Workers Compensation Act, and Employment Development Department claims) shall be submitted to and determined exclusively by binding arbitration under the Federal Arbitration Act, in conformity with the procedures of the California Arbitration Act (Cal. Code Civ. Proc. sec. 1280 et seq., including section 1283.05 and all of the Act's other mandatory and permissive rights to discovery). However, nothing herein shall prevent me from filing and pursuing administrative proceedings only before the California Department of Fair Employment and Housing, or the U.S. Equal Opportunity Commission."
Moreno and the Labor Commissioner, who intervened on Moreno's behalf, opposed Sonic's motion to compel. They argued that, insofar as the arbitration agreement deprives Moreno of the benefits of the Berman procedure, it is unenforceable as against public policy.
The superior court denied the petition to compel arbitration, agreeing that the arbitration provision violates public policy insofar as it waives Moreno's right to pursue a Berman hearing. The Court of Appeal reversed, finding "no evidence" in the record "that Moreno or any other wage claimant lacks the knowledge, skills, abilities, or resources to vindicate his or her statutory rights in an arbitral forum."
In my dissent in Sonic I, I explained that the FAA, under the United States Supreme Court's binding interpretation of that statute, preempts the Sonic I majority's public policy rationale. (Sonic I, supra, 51 Cal.4th at pp. 706-712 (dis. opn. of Chin, J.).) After we decided Sonic I, the high court held in Concepcion that the FAA preempts the California rule, announced by another four-to-three majority of this court in Discover Bank v. Superior Court (2005) 36 Cal.4th 148 [30 Cal.Rptr.3d 76, 113 P.3d 1100] (Discover Bank), that certain waivers of classwide arbitration procedures are unconscionable and unenforceable. (Concepcion, supra, 563 U.S. at pp. ___ - ___ [131 S.Ct. at pp. 1747-1748].) Concepcion confirms my discussion in Sonic I. I therefore agree with the majority that the FAA preempts Sonic I's public policy rationale.
As the majority acknowledges (maj. opn., ante, at pp. 1149-1150), because unconscionability is a contract defense, the party resisting enforcement of an arbitration provision has the burden of proving unconscionability. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236 [145 Cal.Rptr.3d 514, 282 P.3d 1217] (Pinnacle).) In light of this principle, both this court and our Courts of Appeal have held that a party resisting arbitration forfeits the defense of unconscionability by failing to pursue it in the trial court. (Pearson Dental Supplies, Inc. v. Superior Court (2010) 48 Cal.4th 665, 681 [108 Cal.Rptr.3d 171, 229 P.3d 83]; Mastick v. TD Ameritrade, Inc. (2012) 209 Cal.App.4th 1258, 1266-1267 [147 Cal.Rptr.3d 717].)
The record here supports application of this forfeiture rule to Moreno's unconscionability claim. At no point in the trial court did Moreno claim that the arbitration provision here is "unreasonably one-sided in favor of the employer." (Maj. opn., ante, at p. 1125.) He did allege in his response to Sonic's petition to compel that the arbitration provision is unconscionable because it "fails to provide an arbitral forum in which employees can fully
Were it either necessary or appropriate to reach the unconscionability claim Moreno is now asserting, under existing California law, I would reject it.
Civil Code section 1670.5, subdivision (a), authorizes a court, upon finding "as a matter of law" that a "contract or any clause of the contract" was "unconscionable at the time it was made," to "refuse to enforce the contract," to "enforce the remainder of the contract without the unconscionable clause," or to "so limit the application of any unconscionable clause as to avoid any unconscionable result." The official Assembly comment accompanying this section explains: "The basis test [of unconscionability] is whether, in the light of the general background and the needs of the particular case, the clauses involved are so one-sided as to be unconscionable under the circumstances existing at the time of the making of the contract.... The principle is one of prevention of oppression and unfair surprise [citation] and not of disturbance of allocation of risks because of superior bargaining power." (Rep. on Assem. Bill No. 510 (1979-1980 Reg. Sess.) 5 Assem. J. (1979-1980 Reg. Sess.) p. 9231, reprinted as Legis. Com. com., 9 West's Ann. Civ. Code (2011 ed.) foll. p. § 1670.5, p. 74 (Official Comment).) Consistent with this comment, we recently reaffirmed in the context of determining the validity of an arbitration provision that "[a] contract term is not substantively unconscionable when it merely gives one side a greater benefit; rather, the term must be `so one-sided as to "shock the conscience."' [Citation.]" (Pinnacle, supra, 55 Cal.4th at p. 246.)
Under these principles, the arbitration provision at issue here is not unconscionable. As the majority notes, in evaluating a claim that a contract is
Supporting my conclusion is this court's decision in Little v. Auto Steigler, Inc. (2003) 29 Cal.4th 1064 [130 Cal.Rptr.2d 892, 63 P.3d 979]. There, a terminated employee sued his former employer for tortious demotion and termination in violation of public policy, breach of an implied contract of continued employment, and breach of the implied covenant of good faith and fair dealing. (Id. at p. 1069.) The employer moved to compel arbitration under a provision that, like the one now at issue, specified that the arbitrator must be a retired California superior court judge and made applicable the ordinary civil rules of pleading, rules of evidence, and resolution of disputes by motions. (Id. at pp. 1069-1070.) The majority rejected the argument that "incorporation of [these] legal formalities into" the arbitration procedure rendered the arbitration agreement "unconscionable," explaining: "Without more, ... we cannot say that these provisions, which make arbitration more closely follow judicial procedures, are unconscionably one-sided. It is not at all obvious that such provisions would inordinately benefit [the employer] rather than [the employee]." (Little, supra, 29 Cal.4th at p. 1075, fn. 1.) A similar conclusion is appropriate here.
The majority believes that Moreno, who made no attempt in the trial court to show unconscionability, should nevertheless have a second chance. After concluding that, under the FAA, "unconscionability remains a valid defense to a petition to compel arbitration" (maj. opn., ante, at p. 1142), the majority reasons that, because Moreno did not "develop[]" his unconscionability claim below (maj. opn., ante, at p. 1125), remand is appropriate so the trial court can consider that claim "in the first instance" (maj. opn., ante, at pp. 1171-1172). Because this conclusion "is decisive of the appeal"
Moreover, there are numerous problems with the majority's dicta, starting with its articulation of the general unconscionability standard. According to the majority, the trial court may declare the arbitration provision unconscionable upon finding that it is "unreasonably" one-sided in favor of the employer. (Maj. opn., ante, at pp. 1124-1125.) If, by this, the majority means "`so one-sided as to "shock the conscience"'" (Pinnacle, supra, 55 Cal.4th at p. 246), then, as discussed above, I agree. And, as explained above, the arbitration agreement is not so one-sided as to shock the conscience simply because it fails to exclude wage claims from the otherwise broad agreement to arbitrate all claims either party may have against the other.
However, if, by "unreasonably one-sided," the majority means something less, then I disagree. As our Courts of Appeal have consistently recognized, the phrase "shock the conscience" is not, as the majority suggests (maj. opn., ante, at p. 1146), "synonymous with `unreasonable.' Basing an unconscionability determination on the reasonableness of a contract provision would inject an inappropriate level of judicial subjectivity into the analysis. `With a concept as nebulous as "unconscionability" it is important that courts not be thrust in the paternalistic role of intervening to change contractual terms that the parties have agreed to merely because the court believes the terms are unreasonable. The terms must shock the conscience.' [Citations.]" (Morris v. Redwood Empire Bancorp (2005) 128 Cal.App.4th 1305, 1322-1323 [27 Cal.Rptr.3d 797], quoting American Software, Inc. v. Ali (1996) 46 Cal.App.4th 1386, 1391 [54 Cal.Rptr.2d 477]; see Walnut Producers of California v. Diamond Foods, Inc. (2010) 187 Cal.App.4th 634, 647-648 [114 Cal.Rptr.3d 449]; Belton v. Comcast Cable Holdings, LLC (2007) 151 Cal.App.4th 1224, 1247 [60 Cal.Rptr.3d 631]; Aron v. U-Haul Co. of California (2006) 143 Cal.App.4th 796, 809 [49 Cal.Rptr.3d 555]; Wayne v. Staples, Inc. (2006) 135 Cal.App.4th 466, 483 [37 Cal.Rptr.3d 544]; Koehl v. Verio, Inc. (2006) 142 Cal.App.4th 1313, 1340 [48 Cal.Rptr.3d 749]; California Grocers Assn. v. Bank of America (1994) 22 Cal.App.4th 205, 214-215 [27 Cal.Rptr.2d 396].)
Unfortunately, it appears the majority does, in fact, mean something less. Early in its opinion, the majority indicates that whether the arbitration provision is unconscionable turns on "[t]he fundamental fairness of the bargain," which "depend[s] on what benefits the employee received under the
In the end, the majority, though purporting to provide guidance to the trial court, refuses to say precisely what standard the court should apply on remand in determining unconscionability. Instead, after asserting that our case law "does not indicate" whether the shock the conscience standard is "different" from the many other standards the majority puts forth, or "is the one true, authoritative standard for substantive unconscionability, exclusive of all others" (maj. opn., ante, at p. 1159), the majority declines to decide these questions and leaves it to the trial court to determine which of the majority's "nonexclusive formulations" to apply (maj. opn., ante, at p. 1160). In my view, Pinnacle settles the question; the arbitration provision at issue is unconscionable only if it is so one-sided as to shock the conscience. (Pinnacle, supra, 55 Cal.4th at p. 246.)
The majority's dicta regarding how the general unconscionability standard should be applied in this specific case is also problematic. The majority offers a number of different formulations, indicating that the arbitration agreement's validity turns, variously, on whether the arbitration procedure (1) will enable Moreno to "vindicate his right to recover unpaid wages" (maj. opn., ante, at p. 1142) or "obtain prompt, affordable, and enforceable resolution of [his] wage claim" (maj. opn., ante, at p. 1147); (2) will "impose[] costs and risks ... that make the resolution of the wage dispute inaccessible and unaffordable, and thereby `effectively blocks every forum for ... redress'" (id. at p. 1148); and (3) will provide "an effective and low-cost approach to resolving wage disputes" (id. at p. 1147), a "speedy, informal, and affordable resolution" of Moreno's wage claim (maj. opn., ante, at p. 1149), or an "accessible" and "affordable" forum for resolving his wage dispute (maj. opn., ante, at pp. 1147-1148, 1149). These terms are hopelessly vague, uncertain, and subjective. The majority offers no clue as to what it means to
Even were these terms capable of precise definition, the inquiry necessary to apply them would be difficult, if not impossible. Under our law, a determination of unconscionability must be based on the circumstances that existed "at the time [the contract] was made" (Civ. Code, § 1670.5, subd. (a)), not on hindsight in light of subsequent events (Setzer v. Robinson (1962) 57 Cal.2d 213, 217 [18 Cal.Rptr. 524, 368 P.2d 124]; Colton v. Stanford (1890) 82 Cal. 351, 403 [23 P. 16]). Accordingly, under the majority's approach, a trial court, in determining accessibility and affordability, will have to determine, not what Moreno can afford today, but what he could have afforded at the time he signed the arbitration agreement. (Parada v. Superior Court (2009) 176 Cal.App.4th 1554, 1583 [98 Cal.Rptr.3d 743] (Parada).)
Equally, if not more, problematic is the majority's view that, in determining unconscionability, a trial court may consider "the value of" the benefits under the Berman procedure that Moreno has surrendered. (Maj. opn., ante,
Also speculative is the majority's assertion that the Berman procedure is speedy, informal, and affordable. Regarding speed, we have previously observed that, because of "the time consumed by the various procedural steps" in Berman proceedings, there is "typically" a four-to six-month "delay" between the filing date and the Berman hearing. (Cuadra v. Millan (1998) 17 Cal.4th 855, 860 [72 Cal.Rptr.2d 687, 952 P.2d 704].) In this case, Sonic has documented cases in which commencement of a Berman hearing took a year or more.
Regarding formality, a Berman hearing is not nearly as informal as the majority suggests. In 2002, when Moreno signed the arbitration agreement, the Labor Commissioner's published policies and procedures stressed (and
Other asserted benefits of the Berman procedure are likewise speculative. The majority notes that, before the holding of a Berman hearing, the Labor Commissioner's staff "`may attempt to settle claims either informally or through a conference between the parties.'" (Maj. opn., ante, at p. 1128, italics added.) However, these efforts are entirely discretionary; in any given case, the Labor Commissioner may choose not to make any informal settlement attempts. The majority also emphasizes the requirement that an employer wishing to file an appeal must post an undertaking with the court in the amount of the award. (Maj. opn., ante, at p. 1129.) However, an employee who has agreed to arbitrate a controversy may obtain provisional remedies — such as an attachment or a preliminary injunction requiring payment of wages during the arbitration — in connection with the controversy.
My conclusion that, at the petition to compel stage, the value of the Berman procedure to a particular employee in a given case is speculative does not, as the majority asserts, "disparage[]" that procedure. (Maj. opn., ante, at p. 1161.) It is, after all, the majority that is requiring the trial court to determine the potential "value" of the Berman procedure to Moreno. (Maj. opn., ante, at p. 1149.) Insofar as the majority presumes that the Berman procedure would be beneficial to Moreno and superior to Sonic's arbitration procedure, and the majority places the burden on Sonic to introduce evidence showing otherwise (see maj. opn., ante, at p. 1147), the majority reverses our established approach to unconscionability. As earlier noted, Moreno, as the party asserting the defense, has the burden to prove unconscionability. (Pinnacle, supra, 55 Cal.4th at p. 236.) Thus, he should have the burden of proving the value of the Berman procedure in this case and the features, costs, and risks of Sonic's arbitration procedure. (See Dryer v. Los Angeles Rams (1985) 40 Cal.3d 406, 415 [220 Cal.Rptr. 807, 709 P.2d 826] ["the
Indeed, my conclusion regarding the speculative benefit of a Berman proceeding and my consequent rejection of the majority's case-by-case approach are fully consistent with our existing precedent, including the Sonic I majority's opinion in this very case. In Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 111 [99 Cal.Rptr.2d 745, 6 P.3d 669], the court observed that "[t]urning a motion to compel arbitration into a mini-trial on the comparative costs and benefits of arbitration and litigation for a particular employee would not only be burdensome on the trial court and the parties, but would likely yield speculative answers." In this case, the Sonic I majority extended this analysis to the comparative costs and benefits of arbitration and Berman procedures; in adopting a categorical prohibition against all Berman waivers as a matter of public policy, it expressly rejected the very case-by-case approach the majority now proposes precisely because a trial court, at the petition to compel "stage," "is in no position to determine" "whether and to what extent a particular wage claimant will benefit from the Berman hearing process." (Sonic I, supra, 51 Cal.4th at p. 683.) The majority fails to explain why, in the context of determining unconscionability — rather than public policy — during a petition to compel, a trial court is in any better position to determine "whether and to what extent a particular wage claimant will benefit from the Berman hearing process." (Sonic I, supra, 51 Cal.4th at p. 683.) The majority's superficial and unpersuasive attempt to distance itself from Sonic I's unqualified statement (maj. opn., ante, at pp. 1164-1165), and its embrace of the case-by-case approach it previously rejected in this very case, suggest that the majority, having been rebuffed by the high court in its first attack on this predispute arbitration agreement, is now simply searching for a new plan of attack.
For all of the preceding reasons, the approach to unconscionability the majority's dicta outlines is hopelessly vague and unworkable, and is inconsistent with existing California law.
In Sonic I, it was clear to me that the FAA, as authoritatively construed by the United States Supreme Court, preempts the Sonic I majority's public policy rule. (Sonic I, supra, 51 Cal.4th at pp. 706-712 (dis. opn. of Chin, J.).) It is equally, if not more, clear that, under the high court's decisions, the FAA preempts the unconscionability analysis the majority's dicta now describes.
Not surprisingly, this conclusion most clearly appears from Concepcion, the very decision the high court directed us to consider when it vacated the
More recently, in American Express Co. v. Italian Colors Restaurant (2013) 570 U.S. ___, ___ [186 L.Ed.2d 417, 133 S.Ct. 2304, 2310] (Italian Colors), the high court further explored the "effective vindication" approach that underlies the majority's unconscionability discussion. (See maj. opn., ante, at p. 1142 [Sonic I "did not address whether any barrier to vindicating such rights would make the arbitration agreement unconscionable"].) There, in resisting a motion to compel arbitration, the plaintiffs argued that a class action waiver in the relevant arbitration provision prevented them from effectively vindicating their rights under the federal antitrust laws "because they [had] no economic incentive to pursue their antitrust claims individually in arbitration." (Italian Colors, supra, at p. ___ [133 S.Ct. at p. 2310].) In support, they submitted a declaration showing that their maximum individual recovery would be approximately $38,000, and the cost of the expert analysis necessary to prove their claims would be at least several hundred thousand dollars and could exceed $1 million. (Id. at p. ___ [133 S.Ct. at p. 2308].) The high court rejected the argument, explaining: The effective vindication "exception" to the FAA's requirement that arbitration agreements be enforced according to their terms "finds its origin in the desire to prevent `prospective waiver of a party's right to pursue statutory remedies,' [citation]. That would certainly cover a provision in an arbitration agreement forbidding the assertion of certain statutory rights. And it would perhaps cover filing and administrative fees attached to arbitration that are so high as to make access to the forum impracticable. [Citation.] But the fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy. [Citation.]" (570 U.S. at pp. ___ - ___ [133 S.Ct. at pp. 2310-2311].) As Concepcion "established," "the FAA's command to enforce arbitration agreements trumps any interest in
Under these binding precedents, the FAA preempts the approach to unconscionability the majority describes. To the extent an arbitration agreement "forbid[s] the assertion of certain statutory rights," and "perhaps" to the extent it imposes "filing and administrative fees ... that are so high as to make access to the forum impracticable," the FAA may not require enforcement of the agreement according to its term. (Italian Colors, supra, 570 U.S. at pp. ___ - ___ [133 S.Ct. at pp. 2310-2311].) Short of that, under the FAA, an arbitration provision may not be invalidated as unconscionable because of a court's subjective determination that a given arbitration procedure is not "affordable" and "accessible" (maj. opn., ante, at pp. 1148, 1149), or that its costs and risks "`effectively'" render a wage claim not worth pursuing (maj. opn., ante, at p. 1142) and thus erect a "barrier to vindicating [wage] rights" (maj. opn., ante, at p. 1143). The FAA, as the high court has construed it, precludes state courts from finding an arbitration provision unconscionable based on the need to protect "small-dollar claims that might otherwise slip through the legal system," even though that goal may be "desirable." (Concepcion, supra, 563 U.S. at p. ___ [131 S.Ct. at p. 1753].) It "trumps any interest in ensuring the prosecution of low-value claims" and "favor[s] the absence of litigation when that is the consequence of" following its "command" to enforce arbitration agreements "according to their terms." (Italian Colors, supra, at p. ___, fn. 5 [133 S.Ct. at p. 2312, fn. 5], italics added.) The majority's approach, which appears to go far beyond what the high court has declared the FAA permits, is therefore preempted.
The majority's attempts to reconcile its dicta with these binding precedents are unpersuasive. The majority first asserts that, "[b]ecause the Berman statutes promote the very objectives of `informality,' `lower costs,' `greater efficiency and speed,' and use of `expert adjudicators,'" its approach "does not pose an obstacle to the achievement of the FAA's objectives as construed in Concepcion." (Maj. opn., ante, at p. 1149.) However, it is obvious that using the unconscionability doctrine to invalidate arbitration agreements and mandate either Berman procedures or Berman-like procedures frustrates what Concepcion, like many high court decisions before it, identified as "[t]he `principal purpose' of the FAA": "to `ensur[e] that private arbitration agreements are enforced according to their terms.' [Citations.]" (Concepcion, supra, 563 U.S. at p. ___ [131 S.Ct. at p. 1748]; see Stolt-Nielsen S. A. v. AnimalFeeds Int'l Corp. (2010) 559 U.S. 662, 682 [176 L.Ed.2d 605, 130 S.Ct. 1758] ["we have said on numerous occasions that the central or
But here, because arbitration is more streamlined than the Berman process, the majority's approach also frustrates other FAA objectives the high court emphasized in Concepcion. (Concepcion, supra, 563 U.S. at p. ___ [131 S.Ct. at p. 1749].) As explained above (ante, pp. 1179-1180), because the procedural steps of the Berman process cause appreciable delay before an administrative hearing is even held and because any party to that process is entitled to a formal trial de novo in superior court after a Berman hearing, the majority's approach is likely to produce procedures that are less efficient, more costly, more formal, and more time consuming than arbitration. In asserting otherwise, the majority never factors in the trial de novo option under the Berman statutes; it makes no attempt to explain how a procedure involving an administrative hearing followed by a full, formal trial de novo in superior court does not interfere with the attributes of arbitration it identifies: lower costs, greater efficiency and speed, and informality. (Maj. opn., ante, at p. 1143.) Moreover, Concepcion does not, as the majority suggests, identify the "use of `expert adjudicators'" as a benefit of arbitration (maj. opn., ante, at p. 1149); it identifies "`the ability to choose expert adjudicators'" (Concepcion, supra, at p. ___ [131 S.Ct. at p. 1751], italics added). The Berman process eliminates this choice and, contrary to the parties' agreement, imposes a particular adjudicator. Thus, contrary to the majority's assertion (maj. opn., ante, at p. 1149), the majority's approach does contravene Concepcion's preemption principles by "`stand[ing] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress' "in passing the FAA. (Concepcion, supra, 563 U.S. at p. ___ [131 S.Ct. at p. 1753], italics added).
Moreover, Italian Colors establishes that the very process the majority prescribes for determining the accessibility and affordability of the arbitration procedure in a given case poses such an obstacle. There, the high court rejected an approach that would "`require courts to proceed case by case to tally the costs and burdens to particular plaintiffs in light of their means'" and "`the size of their claims ....'" (Italian Colors, supra, 570 U.S. at pp. ___ - ___ [133 S.Ct. at pp. 2311-2312].) "Such a preliminary litigating hurdle," the court explained, "would undoubtedly destroy the prospect of
Nothing supports the majority's unsupported speculation that its case-by-case inquiry will be different, i.e., that a minitrial on the comparative costs and benefits of arbitration and the Berman procedure for a particular employee will not impose a preliminary litigating hurdle. (Maj. opn., ante, at p. 1158.) Under the majority's approach, the parties will be submitting evidence on any number of issues, including the following: what arbitration procedure the employee can currently afford and whether that "materially differ[s]" from what he should or could have afforded when the parties signed the arbitration agreement (maj. opn., ante, at p. 1164); what were (and perhaps are) the rules that govern the arbitration; what will the unspecified arbitration procedures be; are Berman procedures "in practice, rarely used and generally unavailable to the employee" (maj. opn., ante, at p. 1160); how long will it take to resolve the employee's wage claim through the Berman procedure, including a possible trial de novo in superior court, and how long will it take to resolve the wage claim through the arbitration procedure (maj. opn., ante, at p. 1161); how much will it cost to resolve the employee's wage claim through the Berman procedure, including a possible trial de novo, and how much will it cost to resolve the wage claim through the arbitration procedure (maj. opn., ante, at p. 1161); how often do parties request a trial de novo (maj opn., ante, at p. 1167)? Given the parties' need to litigate all of these matters in the trial court, and the availability of appellate review of the trial court's decision (Code Civ. Proc., § 1294, subd. (a); Parada, supra, 176 Cal.App.4th at p. 1560), the majority's "anticipat[ion]" that its approach will not create the kind of preliminary, arbitration-delaying litigating hurdle Italian Colors discussed (maj. opn., ante, at p. 1157) is just wishful thinking. This conclusion reflects a "lack of confidence" only in the majority's unwarranted optimism, not, as the majority asserts, "in the ability of our trial courts." (Maj. opn., ante, at p. 1167.)
In any event, I disagree with the majority that, so long as states and their courts do not interfere with fundamental attributes of arbitration, Concepcion allows them to invalidate arbitration agreements as unconscionable based on a policy judgment that the arbitration procedure is not adequately affordable and accessible. (Maj. opn., ante, at pp. 1144-1158.) Under the majority's narrow reading of Concepcion, the FAA's savings clause permits states, for policy reasons, to impose all sorts of arbitration procedures that are not within the terms of the parties' arbitration agreement, so long as those procedures do not interfere with fundamental attributes of arbitration. This view is contrary to the high court's statement in Concepcion that the FAA
Indeed, the majority's assertion that its weighing approach to unconscionability applies, not generally, but only where "a particular class has been legislatively afforded specific protections in order to mitigate the risks and costs of pursuing certain types of claims ..." (maj. opn., ante, at p. 1152) further demonstrates that the majority's approach is inconsistent with, and therefore preempted by, the FAA. The majority premises its approach on the FAA's savings clause, which provides that arbitration agreements "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. § 2; see maj. opn., ante, at p. 1143.) In Southland, Justice Stevens invoked this clause to justify the prohibition against arbitration we had read into California's Franchise Investment Law (Corp. Code § 31000 et seq.). (Southland, supra, 465 U.S. at pp. 18-22 (conc. & dis. opn. of Stevens, J.).) He reasoned that, because a contract void as contrary to public policy is revocable at law or in equity, the FAA does not preempt a state law that "provid[es] special protection" to franchisees by declaring agreements to arbitrate claims under the Franchise Investment Law void as a matter of public policy. (465 U.S. at pp. 21-22 (conc. & dis. opn. of Stevens, J.).) The majority in Southland rejected this view, finding that the "defense to arbitration" we had read into the Franchise Investment Law was "not a ground that exists at law or in equity `for the revocation of any contract' but merely a ground that exists for the revocation of arbitration provisions in contracts subject to the California Franchise Investment Law." (465 U.S. at p. 16, fn. 11.) It also rejected the view that "`a state policy of providing special protection for franchisees ... can be recognized without impairing the basic purposes of the [FAA]' [Citation.]."
The majority's approach is inconsistent with Southland. Like the defense to arbitration we read into the Franchise Investment Law, the defense to arbitration the majority now reads into the Berman statutes is not a ground that exists at law or in equity for the revocation of any contract, but is, according to the majority's own assertion, merely a ground that exists for the revocation of arbitration provisions in contracts subject to the Berman statutes or to other statutes that "legislatively" afford to "a particular class ... specific protections in order to mitigate the risks and costs of pursuing certain types of claims." (Maj. opn., ante, at p. 1152.) Moreover, it "conflict[s] with" the FAA by enabling our Legislature, "simply by passing statutes such as" the Berman statutes, "to override the declared [federal] policy requiring enforcement of arbitration agreements" and to "wholly eviscerate congressional intent to place arbitration agreements `upon the same footing as other contracts.'" (Southland, supra, 465 U.S. at pp. 16-17, fn. 11.) Under Southland, it is, therefore, preempted.
Given this analysis, I disagree with the majority's broad assertion that the FAA does not preempt unconscionability rules that apply "uniquely in the context of arbitration." (Maj. opn., ante, at p. 1143.) As the high court has held, in cases where the FAA applies, a state court may not, "in assessing the rights of litigants to enforce an arbitration agreement, construe that agreement in a manner different from that in which it otherwise construes nonarbitration agreements under state law." (Perry v. Thomas (1987) 482 U.S. 483, 492, fn. 9 [96 L.Ed.2d 426, 107 S.Ct. 2520].) In other words, as Concepcion explains, "a [state] court may not `rely on the uniqueness of an agreement to arbitrate as a basis for a state-law holding that enforcement would be unconscionable....'" (Concepcion, supra, 563 U.S. at p. ___ [131 S.Ct. at p. 1747].) The majority's approach violates this principle insofar as it departs from our existing law of unconscionability and crafts different unconscionability rules for arbitration agreements.
Finally, for two reasons, I also disagree with the majority's view that the high court's FAA decisions allow us to "consider the value of benefits provided by the Berman statutes" in determining unconscionability. (Maj. opn., ante, at p. 1149.) First, insofar as this approach will require a complex and speculative inquiry into the purported value of the Berman statutes to a particular employee at the time the contract was signed, it is, as earlier explained, inconsistent with Italian Colors, supra, 570 U.S. at pages ___ - ___ [133 S.Ct. at pp. 2311-2312]. Second, even were it possible for a trial court to assign any meaningful value to these speculative benefits, considering that value would be fundamentally inconsistent with Concepcion and Italian Colors. In the former, the high court held that state courts may not base a finding of unconscionability on the value of class arbitration to litigants with "small-dollar claims." (Concepcion, supra, 563 U.S. at p. ___ [131 S.Ct. at p. 1753].) In the latter, the court, expressly applying Concepcion, held that an arbitration agreement may not be invalidated based on individualized proof that what the plaintiffs have waived — the right to class arbitration — is so valuable that, without it, the costs of pursuing their claims are prohibitive. (Italian Colors, supra, 570 U.S. at pp. ___ - ___ [133 S.Ct. at pp. 2311-2312].) These binding interpretations of the FAA preclude us from invalidating an arbitration provision as unconscionable based on the supposed value to a particular employee of the Berman procedure. As Concepcion "established," "the FAA's command to enforce arbitration agreements trumps any interest in ensuring the prosecution of low-value claims." (Italian Colors, supra, at p. ___, fn. 5 [133 S.Ct. at p. 2321, fn. 5].) Thus, it is the high court, not I, that has construed the FAA to require adherence to its primary purpose — enforcing arbitration agreements according to their terms — "`at the expense of harming other values that the legislature deems important.'" (Maj. opn., ante, at p. 1167.) The court could hardly have been clearer in Italian Colors: the FAA "favor[s] the absence of litigation when that is the consequence of" following its "command" to enforce arbitration agreements "according to their terms." (Italian Colors, supra, at p. ___, fn. 5 [133 S.Ct. at p. 2312, fn. 5].)
For all of the above reasons, the majority's approach is inconsistent with the FAA. Although the majority purports to be faithfully applying "the FAA's saving clause" (maj. opn., ante, at p. 1142), which permits arbitration agreements "to be invalidated by `generally applicable contract defenses, such as ... unconscionability'" (Concepcion, supra, 563 U.S. at p. ___ [131 S.Ct. at p. 1746]; see 9 U.S.C. § 2), it is, in reality and contrary to Concepcion, applying the unconscionability defense "in a fashion that disfavors arbitration" (Concepcion, at p. ___ [131 S.Ct. at p. 1747]) and that
In Concepcion, the high court, in invalidating another of this court's unconscionability rules for refusing to enforce arbitration provisions, first noted that "judicial hostility" towards arbitration has "manifested itself in `a great variety' of `devices and formulas.'" (Concepcion, supra, 563 U.S. at p. ___ [131 S.Ct. at p. 1747].) Then, in the very next sentence, it commented: "And although these statistics are not definitive, it is worth noting that California's courts have been more likely to hold contracts to arbitrate unconscionable than other contracts. [Citations.]" (Ibid.) Ignoring the high court's clear message and undeterred by another reversal, today, the majority "`formula[tes]'" yet another "`device[]'" (ibid.) for invalidating arbitration agreements: a case-by-case, hopelessly vague, subjective, and indeterminable assessment of (1) the value of the benefits of the Berman procedure to a particular employee and (2) the accessibility and affordability to that employee of the specific arbitration procedure to which he or she has agreed. The majority's approach is inconsistent with California law and is preempted by the FAA. I therefore dissent from that part of the majority's opinion and from the judgment.
Baxter, J., concurred.
