ORDER GRANTING DEFENDANT'S SECOND MOTION TO COMPEL ARBITRATION

LAUREL BEELER, United States Magistrate Judge.

I. INTRODUCTION

Kathleen Lucas and Dan Martin (collectively, "Plaintiffs") filed the instant action against car rental company Hertz Corporation ("Hertz") in San Francisco County Superior Court on November 29, 2010. Notice of Removal, ECF No. 1 at 5-12 ("Complaint").1 Hertz removed the action to this court on March 31, 2011. Notice of Removal, ECF No. 1. Hertz now moves, for the second time, for an order compelling Plaintiffs to arbitrate their claims pursuant to an arbitration agreement incorporated by reference into the car rental agreement that Mr. Martin signed. Motion to Compel ("MTC"), ECF No. 37. For the reasons explained below, the court GRANTS Hertz's motion.

II. FACTS

Mr. Martin, who is a resident of the United States, rented a Daihatsu automobile from Costa Rica Rent a Car, a Hertz licensee, in Alajuela, Costa Rica on February 28, 2010. Complaint, ECF No. 1 at 5-6, ¶¶ 3, 11; Motion to Compel, ECF No. 37 at 5; Opposition, ECF No. 44 at 7.2 The car rental agreement, which is roughly half a page long and which was submitted by both Mr. Martin and Hertz, sets forth the rental price and then states in relevant part:

Calderon Declaration, ECF No. 39, Ex. A; Martin Declaration, ECF No. 40, Ex. A. Mr. Martin's signature is directly under this clause. Calderon Declaration, ECF No. 39, Ex. A; Martin Declaration, ECF No. 40, Ex. A.3 Mr. Martin's signature also appears on two of the addenda mentioned in the clause (DCLA001 and DCLA002). Calderon Declaration, ECF No. 39, Ex. E.4 The "folder jacket" referred to above is the paper sleeve into which the rental agreement is placed. Calderon Declaration, ECF No. 39 at 3, ¶ 6. Hertz submitted a copy of the folder jacket that Costa Rica Rent a Car used in February 2010. Id., Ex. C. Unlike the rental agreement and the addenda, it does not require the customer's signature or contain any space for acknowledgment or initials. Id., Ex. C. Employees of the Costa Rica Rent a Car are supposed to give the folder jacket to the customer at the time a vehicle is rented. Id. at 3, ¶ 6. The folder jacket contains the following arbitration agreement at the bottom-end of the fifth of five columns containing numerous legal provisions typed in small, tightly-packed font:

Id. at 4, ¶ 7, Ex. D.5

On March 6, 2010, Mr. Martin was driving the car to the home of the United States Ambassador to Costa Rica for a social function. Complaint, ECF No. 1 at 7, ¶ 12. Ms. Lucas, who also is a resident of the United States, was a passenger in the car. Id. After passing through the gate at the home, Mr. Martin was driving down a steep driveway leading to the house when the car unexpectedly began to accelerate. Id., ¶ 13. He depressed the clutch and the brake pedal, but the car did not stop. Id. The car crashed into a wall of the house, and Mr. Martin and Ms. Lucas were injured. Id., ¶ 14.

On November 29, 2010, Plaintiffs filed suit against Hertz in San Francisco County Superior Court, alleging causes of actions for strict liability and negligence. Id. at 5-12. In essence, Plaintiffs claim that Hertz placed the defective car into the stream of commerce and failed to properly maintain its safe condition. See id.

Hertz now moves, for a second time, to compel Mr. Martin to arbitrate his claims. Motion to Compel, ECF No. 37.6 Hertz argues that the rental agreement that Mr. Martin signed when he rented the car on February 28, 2010 incorporated by reference an arbitration agreement that requires him to resolve his claims by conciliation and arbitration in accordance with the bylaws of the International Center for Conciliation and Arbitration of the Costa Rican-American Chamber of Commerce ("CICA"). See id. The conciliation and arbitration are to take place in San Jose, Costa Rica. Mr. Martin opposed Hertz's motion. Opposition, ECF No. 44. The court heard oral argument on Hertz's motion on June 21, 2012.

III. LEGAL STANDARD

Under the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq., arbitration agreements "shall be valid, irrevocable, and enforceable, save upon such grounds that exist at law or in equity for the revocation of a contract." 9 U.S.C. § 2; see AT & T Mobility, LLC v. Concepcion, ___ U.S. ___, 131 S.Ct. 1740, 1746, 179 L.Ed.2d 742 (2011). Section 4 of the FAA permits a "party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration [to] petition any United States district court ... for an order directing that ... arbitration proceed in the manner provided for in [the arbitration] agreement." 9 U.S.C. § 4. If the court is satisfied "that the making of the arbitration agreement or the failure to comply with the agreement is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement." Id.

The FAA reflects "both a `liberal federal policy favoring arbitration,', and the `fundamental principle that arbitration is a matter of contract.'" Concepcion, 131 S.Ct. at 1745 (2011) (quoting Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) and Rent-A-Center, West, Inc. v. Jackson, ___ U.S. ___, 130 S.Ct. 2772, 2776, 177 L.Ed.2d 403 (2010)). "In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, and enforce them according to their terms." Id. at 1745-46 (citing Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006) and Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 478, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)). Nonetheless, when a question arises as to whether "a particular party is bound by the arbitration agreement," "the liberal federal policy regarding the scope of arbitrable issues is inapposite." Comer v. Micor, Inc., 436 F.3d 1098, 1104 n. 11 (9th Cir.2006) (emphasis in original; citation omitted).

IV. DISCUSSION

A. Whether a Valid Arbitration Agreement Exists

As an initial matter, Mr. Martin challenges the existence of a valid agreement to arbitrate. Opposition, ECF No. 44 at 8-14. As the party moving the court to compel arbitration, Hertz bears the burden of proving by a preponderance of the evidence the existence of a valid arbitration agreement. Olvera v. El. Pollo Loco, 173 Cal.App.4th 447, 453, 93 Cal.Rptr.3d 65 (2009).7

First, Mr. Martin argues that because, as he declares, he either was never given a copy of the folder jacket or was given it after he signed the rental agreement, he and Hertz never clearly agreed to the arbitration provision. Opposition, ECF No. 44 at 11-14.

"To evaluate the validity of an arbitration agreement, federal courts `should apply ordinary state-law principles that govern the formation of contracts.'" Ingle v. Circuit City Stores, Inc., 328 F.3d 1165, 1170 (9th Cir.2003) (quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995)). When considering a motion to compel arbitration, the court must initially determine whether the parties agreed to the arbitration clause. Bruni v. Didion, 160 Cal.App.4th 1272, 1283, 73 Cal.Rptr.3d 395 (2008). As stated above, there is no genuine dispute about whether Mr. Martin signed the car rental agreement that included language stating that he had read and accepted the terms and conditions as set forth in the folder jacket. The question, then, is whether the terms and conditions as set forth in the folder jacket were incorporated into the car rental agreement that Mr. Martin signed.

"Under California law, parties may validly incorporate by reference into their contract the terms of another document." Slaught v. Bencomo Roofing Co., 25 Cal.App.4th 744, 748, 30 Cal.Rptr.2d 618 (1994) (citing Baker v. Aubry, 216 Cal.App.3d 1259, 1264, 265 Cal.Rptr. 381 (1989)). "For the terms of another document to be incorporated into the document executed by the parties[,(1)] the reference must be clear and unequivocal, [(2)] the reference must be called to the attention of the other party and he must consent thereto, and [(3)] the terms of the incorporated document must be known or easily available to the contracting parties." Shaw v. Regents of University of California, 58 Cal.App.4th 44, 54, 67 Cal.Rptr.2d 850 (1997) (citations omitted); see also Koffler Elec. Mech. Apparatus Repair, Inc. v. Wartsila N.A., Inc., No. C-11-0052 EMC, 2011 WL 1086035, at *3 (N.D.Cal. Mar. 24, 2011) (noting and applying Shaw's articulation of the legal standard for incorporation by reference under California law).

As described above, the car rental agreement specifically referenced the folder jacket and the terms and conditions found in it and required Mr. Martin to acknowledge that he read and understood them. See Calderon Declaration, Ex. A. It also required him to agree that he accepted those terms and conditions and executed the car rental agreement in full conformity with them. See id. Mr. Martin declares that he either was never given a copy of the folder jacket or was given it after he signed the rental agreement, but this representation is immaterial because the terms of an incorporated document must only have been easily available to him; they need not have actually been provided. See Wolschlager v. Fidelity National Title Ins. Co., 111 Cal.App.4th 784, 789-91, 4 Cal.Rptr.3d 179 (2003); Slaught v. Bencomo Roofing Co., 25 Cal.App.4th 744, 748-49, 30 Cal.Rptr.2d 618 (1994); see also Reilly v. WM Financial Servs., Inc., 95 Fed.Appx. 851, 852-53 (9th Cir.2004) (affirming district court's ruling that arbitration agreement was valid and enforceable even when plaintiffs contended that they never received or saw a copy of the incorporated arbitration agreement because the arbitration agreement was easily available to the plaintiffs). According to Mr. Calderon, it is standard policy and procedure for employees of the Costa Rican Hertz licensee to give the folder jacket to the customer at the time a vehicle is rented. Calderon Declaration, ECF No. 31 at 2, ¶ 6. Thus, even if Mr. Martin did not receive it, it appears that the folder jacket was easily available to him, and he does not declare facts to suggest otherwise. Courts have enforced incorporated arbitration agreements in similar situations. See Koffler, 2011 WL 1086035, at *4 (holding, under California law, that a set of general terms and conditions that included an arbitration agreement and that were not provided to plaintiff (but were available upon request) were properly incorporated by reference into a purchase agreement); Wolschlager, 111 Cal.App.4th at 789-91, 4 Cal.Rptr.3d 179 (holding that an arbitration clause in a title insurance policy was properly incorporated by reference into the preliminary title report and thus was binding upon the insured even though the insured had not seen the policy or the arbitration clause prior to approving the preliminary title report). Accordingly, the court finds that the arbitration agreement at issue in this case was properly incorporated by reference into the car rental agreement and that Mr. Martin agreed to it.8

Second, Mr. Martin argues that Costa Rican law provides that when an individual is a party to a commercial transaction that includes an arbitration agreement there must be written acceptance of both parties and that no one provided such a written acceptance on behalf of Costa Rica Rent a Car. Opposition, ECF No. 44 at 8-10. In support of this argument, Mr. Martin's counsel submits a declaration attaching: (1) an uncertified translation from http:// translate.google.com that purports to be Article 18 of Law 7727 (Law for the Alternative Resolution of Conflicts); (2) a chapter from The International Comparative Legal Guide to International Arbitration 2007 (Global Legal Group); and (3) a screenshot of an article from a website, http://www.fijatevos.com, that discusses Costa Rican law. See McGuinn Declaration, ECF No. 44-1, Exs. 1-3.

A court determining foreign law "may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence." Fed.R.Civ.P. 44.1. "Although, pursuant to Rule 44.1, courts may ascertain foreign law through numerous means, expert testimony accompanied by extracts from foreign legal materials has been and will likely continue to be the basic mode of proving foreign law." Universe Sales Co., Ltd. v. Silver Castle, Ltd., 182 F.3d 1036, 1038 (9th Cir.1999) (citation omitted). Mr. Martin's counsel's declaration is not expert testimony, and the documents submitted are of questionable accuracy. The court finds Mr. Martin's argument regarding Costa Rican law unsupported.9

Accordingly, the court finds that a valid arbitration agreement exists.

B. Whether Hertz May Enforce the Arbitration Agreement

The FAA "imposes certain rules of fundamental importance, including the basic precept that arbitration `is a matter of consent, not coercion.'" Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp., ___ U.S. ___, 130 S.Ct. 1758, 1773, 176 L.Ed.2d 605 (2010) (quoting Volt Information Sciences, Inc. v. Bd. of Trustees of Leland Stanford Univ., 489 U.S. 468, 479, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)).10 "The right to compel arbitration stems from a contractual right," which generally "may not be invoked by one who is not a party to the agreement and does not otherwise possess the right to compel arbitration." Britton v. Co-op Banking Group, 4 F.3d 742, 744 (9th Cir.1993) (citation omitted).

"The courts have made clear, however, that an obligation to arbitrate does not attach only to those who have actually signed the agreement to arbitrate. In certain circumstances, a signatory can compel a nonsignatory to arbitrate. For example, a nonsignatory may be bound by an agreement to arbitrate under ordinary contract and agency principles, such as `1) incorporation by reference; 2) assumption; 3) agency; 4) veil-piercing/alter ego; and 5) estoppel.'" Amisil Holdings Ltd. v. Clarium Capital Mgmt. LLC, 622 F.Supp.2d 825, 830 (N.D.Cal.2007) (quoting Comer, 436 F.3d at 1101) (adopting magistrate judge's report and recommendation).

"Conversely, in certain circumstances, a nonsignatory can compel a signatory to arbitrate. For instance, a nonsignatory can enforce an arbitration agreement as a third-party beneficiary. Also, a signatory can be compelled to arbitrate at the non-signatory's insistence under `an alternative estoppel theory' — i.e., `because of the close relationship between the entities involved, as well as the relationship of the alleged wrongs to the nonsignatory's obligations and duties in the contract ... and [the fact that] the claims were intimately founded in and intertwined with the underlying contract obligations.'" Id. at 830-31 (quoting Thomson-CSF, S.A. v. American Arbitration Ass'n, 64 F.3d 773, 778 (2d Cir.1995) and citing Comer, 436 F.3d at 1101) (internal citations and quotation marks omitted). Indeed, "courts have generally found ... [that] arbitration is more likely to be attained when the party resisting arbitration is a signatory." Amisil, 622 F.Supp.2d at 831 (citing CD Partners, LLC v. Grizzle, 424 F.3d 795, 799 (8th Cir.2005); Merrill Lynch Investment Managers v. Optibase, Ltd., 337 F.3d 125, 131 (2d Cir.2003); Thomson-CSF, 64 F.3d at 779).

Here, the court is faced with the latter circumstance, as Hertz, a nonsignatory to the car rental agreement, contends that Mr. Martin, a signatory, should be compelled to arbitrate his claim under third-party beneficiary and equitable estoppel theories. MTC, ECF No. 37 at 8-11.

It is true that "nonsignatories can enforce arbitration agreements as third party beneficiaries." Comer v. Micor, Inc., 436 F.3d 1098, 1101 (9th Cir.2006) (citing E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, 269 F.3d 187, 195 (3d Cir.2001)); see also Macaulay v. Norlander, 12 Cal.App.4th 1, 7-8, 15 Cal.Rptr.2d 204 (1992). As the Ninth Circuit has explained:

Balsam v. Tucows, Inc., 627 F.3d 1158, 1161 (9th Cir.2010).

Hertz argues that the language in the folder jacket stating that "any and all disputes, claims, differences, disputes or controversies arising out of or in relation to any aspect of this Agreement" shall be subject to arbitration suggests that Hertz was meant to be a third party beneficiary. MTC, ECF No. 37 at 10-11. The court does not believe that this language is sufficient, under the standard described above, to show that the parties intended the car rental agreement and folder jacket to be enforceable by third party beneficiaries (to the extent that Hertz even is a third party beneficiary). Indeed, a review of relevant authority suggests that it takes more than the "any and all disputes" — type language to support a finding of third party beneficiary enforceability. See, e.g., Chavez v. Bank of America, No. C 10-653 JCS, 2011 WL 4712204, at *5-6 (N.D.Cal. Oct. 7, 2011) (finding that a third party beneficiary could enforce an arbitration agreement where "[t]he Terms of Use explicitly references Intersections as a third party beneficiary under the contract and identifies Intersections as the provider of the service being offered to BANA's customers."); Arellano v. T-Mobile USA, Inc., No. C 10-05663 WHA, 2011 WL 1362165, at *6 (N.D.Cal. Apr. 11, 2011) (finding that an arbitration agreement evinced an intent to cover claims against third parties where it required arbitration for "any claims against other parties [besides T-Mobile] relating to Services or Devices provided or billed to [the subscriber] (such as [T-Mobile's] suppliers, Dealers or third party vendors) whenever [the subscriber] also assert[s] claims against [T-Mobile] in the same proceeding").

Regardless, even though Hertz cannot enforce the arbitration agreement as a third party beneficiary, the court finds that Hertz may enforce it under equitable estoppel.11 Two kinds of equitable estoppel may support a nonsignatory's right to compel arbitration: (1) when the signatory's claims against a nonsignatory arise out of the underlying contract; and (2) when the nonsignatory's conduct is intertwined with a signatory's conduct.

First,

Fujian Pacific Elec. Co. v. Bechtel Power Corp., No. C 04-3126 MHP, 2004 WL 2645974, at *5 (N.D.Cal. Nov. 19, 2004) (quoting MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir.1999) and discussing federal appellate caselaw). See, e.g., Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 758 (11th Cir. 1993) ("Although Sunkist does not rely exclusively on the license agreement to support its claims, each claim presumes the existence of such an agreement. We find that each counterclaim maintained by Sunkist arises out of and relates directly to the license agreement."); Amisil, 622 F.Supp.2d at 840 (quoting Fujian). It applies in such a situation because "[a] signatory to an agreement cannot ... `have it both ways': it cannot on the one hand, seek to hold the non-signatory liable pursuant to duties imposed by the agreement, which contains an arbitration provision, but on the other hand, deny the arbitration provision's applicability because the defendant is a non-signatory." Fujian, 2004 WL 2645974, at *5; see also Larson v. Speetjens, No. C 05-3176 SBA, 2006 WL 2567873, *4 (N.D.Cal. Sept. 5, 2006) ("A party should not be allowed to claim the benefit of the contract and simultaneously avoid its burdens").

Second,

Fujian, 2004 WL 2645974, at *5 (quoting MS Dealer, 177 F.3d at 947). See Westmoreland v. Sadoux, 299 F.3d 462, 467 (5th Cir.2002) (providing that a nonsignatory can compel arbitration when the signatory raises allegations of substantially interdependent and concerted misconduct by the nonsignatory and the other signatory); Thomson-CSF, 64 F.3d at 778 (noting that a signatory can be bound to arbitrate with a nonsignatory "because of the close relationship between the entities involved, as well as the relationship of the alleged wrongs to the nonsignatory's obligations and duties in the contract ... and [the fact that] the claims were intimately founded in and intertwined with the underlying contract obligations"); see also Comer, 436 F.3d at 1101 (acknowledging the same but not applying the theory because, unlike here, it was a signatory, and not a nonsignatory, who invoked estoppel).

Because Plaintiffs do not bring any claims against Costa Rica Rent a Car — and so there are no claims against a signatory that are "inherently bound up" with claims against a nonsignatory — only the first theory of equitable estoppel applies. See Hawkins v. KPMG LLP, 423 F.Supp.2d 1038, 1050 (N.D.Cal.2006); see also Southern Energy Homes, Inc. v. Kennedy, 774 So.2d 540, 545 (Ala.2000) (noting that "`intertwining' requires at least two threads to weave together"). And, upon examination of Plaintiffs' claims, the court finds that Hertz may be allowed to compel Mr. Martin to arbitrate his claims because his claims "makes reference to or presumes the existence of" the underlying car rental agreement. Plaintiffs have sued Hertz for strict liability and negligence, and the entire factual basis for their claim relies upon the existence of the car rental agreement Mr. Martin signed when he rented the car from Costa Rica Rent a Car. Simply put, he would not have been able to rent the car — and thus would not have had any relationship with Hertz — without signing the rental agreement. In such a situation, it would not be fair to allow Mr. Martin to rely upon his signing the rental agreement to rent the car and to prevent Hertz from attempting to enforce the contract's arbitration clause.

C. Whether the Arbitration Agreement Is Unconscionable

Even if a valid arbitration agreement exists and Hertz is able to enforce it, Mr. Martin argues that it is unenforceable because it is unconscionable. Opposition, ECF No. 44 at 14-18. Because Mr. Martin is the party opposing enforcement of the otherwise valid arbitration agreement, he bears the burden to prove this defense. Engalla v. Permanente Medical Group, Inc., 15 Cal.4th 951, 972, 64 Cal.Rptr.2d 843, 938 P.2d 903 (1997).

To determine whether an agreement to arbitrate is enforceable, the court must "apply ordinary state-law principles that govern the formation of contracts." Circuit City Stores v. Adams, 279 F.3d 889, 892 (9th Cir.2002) (quoting First Options of Chi., Inc., 514 U.S. at 944, 115 S.Ct. 1920). "General contract defenses such as fraud, duress or unconscionability, grounded in state contract law, may operate to invalidate arbitration agreements." Id. (citing Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996)); see also Ticknor v. Choice Hotels Int'l, Inc., 265 F.3d 931, 937 (9th Cir.2001) (citing same). "If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract." Cal. Civ.Code § 1670.5(a).12

Unconscionability has both a procedural and a substantive component. Armendariz v. Found. Health Psychcare Servs., 24 Cal.4th 83, 114, 99 Cal.Rptr.2d 745, 6 P.3d 669 (2000). Although both components must be present before a court will refuse to enforce a contract, a sliding scale applies: "the more substantively oppressive the contract terms, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa." Id.

1. Procedural Unconscionability

"The procedural element of the unconscionability analysis concerns the manner in which the contract was negotiated and the circumstances of the parties at that time." Gatton v. T-Mobile USA, Inc., 152 Cal.App.4th 571, 581, 61 Cal.Rptr.3d 344 (2007) (citing Kinney v. United HealthCare Services, Inc., 70 Cal.App.4th 1322, 1329, 83 Cal.Rptr.2d 348 (1999)). "The element focuses on oppression or surprise." Id. (citing Armendariz, 24 Cal.4th at 114, 99 Cal.Rptr.2d 745, 6 P.3d 669). "Oppression arises from an inequality of bargaining power that results in no real negotiation and an absence of meaningful choice." Id. (citing Flores v. Transamerica HomeFirst, Inc., 93 Cal.App.4th 846, 853, 113 Cal.Rptr.2d 376 (2001)). "Surprise is defined as `the extent to which the supposedly agreed-upon terms of the bargain are hidden in the prolix printed form drafted by the party seeking to enforce the disputed terms.'" Id. (quoting Stirlen v. Supercuts, Inc., 51 Cal.App.4th 1519, 1532, 60 Cal.Rptr.2d 138 (1997)) (internal quotation marks omitted).

Here, Mr. Martin argues that the arbitration agreement is procedurally unconscionable on the basis of surprise. Opposition, ECF No. 44 at 15-17.13 As support he points out that between "3,000 and 4,000 words," nearly of which use all capital letters, appear on the folder jacket "in tightly compacted typeface of four columns," making them "nearly illegible." Id. at 17. Moreover, the arbitration agreement is contained under the hearing "Applicable Law and Jurisdiction," "which fails to bring the true import of the paragraph to the reader's attention." Id.

Surprise may be based on the arbitration agreement's location. Newton v. American Debt Services, Inc., 854 F.Supp.2d 712, 724-25 (N.D.Cal.2012) (citing Sanchez v. Valencia Holding Co., LLC, 201 Cal.App.4th 74, 91, 135 Cal.Rptr.3d 19 (2011)). In Newton, for example, the court found procedural unconscionability where the arbitration clause was located on the back of a double-sided agreement, which was incorporated by reference into the primary contract and not contained within the contract itself, and where the plaintiff was not required to sign any part of the incorporated agreement, including the arbitration clause. Id.

The location of the arbitration agreement on the folder jacket at issue here is similarly problematic. First, it is found on the folder jacket and not on the rental agreement that Mr. Martin signed. See Calderon Declaration, ECF No. 39, Ex. C. Mr. Martin did not have to sign or initial anywhere on the folder jacket (and, in fact, he declares that he may not have even received the folder jacket). Martin Declaration, ECF No. 26-1 at 2, ¶ 7. Second, as Mr. Martin pointed out, while the arbitration agreement was not in all capital letters (like the other terms and conditions) and was set off with a subject heading, it was in exceedingly small print at the corner of a document (the folder jacket) that is covered with several thousand other words. See Calderon Declaration, ECF No. 39, Ex. C. A simple look at the folder jacket makes it clear that any attempt to highlight the arbitration clause was unsuccessful. See id. Simply put, the arbitration agreement most certainly is "hidden in the prolix" folder jacket. On these facts, the court finds that the arbitration agreement is moderately procedurally unconscionable.14

2. Substantive Unconscionability

Even so, for Mr. Martin to defeat Hertz's motion, the arbitration agreement would have to be substantively unconscionable as well. Armendariz, 24 Cal.4th at 114, 99 Cal.Rptr.2d 745, 6 P.3d 669. Substantive unconscionability focuses on the harshness and one-sided nature of the substantive terms of the contract. A & M Produce Co. v. FMC Corp., 135 Cal.App.3d 473, 486-87, 186 Cal.Rptr. 114 (1982). An agreement to arbitrate will satisfy this general standard for substantive unconscionability if the agreement lacks a "modicum of bilaterality." Armendariz, 24 Cal.4th at 117, 99 Cal.Rptr.2d 745, 6 P.3d 669. Whether an arbitration agreement is sufficiently bilateral is determined by an examination of the actual effects of the challenged provisions. Ellis v. McKinnon Broadcasting Co., 18 Cal.App.4th 1796, 1803, 23 Cal.Rptr.2d 80 (1993) ("Substantive unconscionability ... refers to an overly harsh allocation of risks or costs which is not justified by the circumstances under which the contract was made.") (internal quotation marks omitted).

Mr. Martin argues that the arbitration agreement is substantively unconscionable because it requires that any arbitration will be governed by CICA's procedural rules, and those rules may not allow for any pre-arbitration discovery. Opposition, ECF No. 44 at 17-18.15 Hertz argues that this does not render the arbitration agreement substantively unconscionable because any limitations on pre-arbitration discovery would affect both parties equally. Reply, ECF No. 49 at 13.

Prior to the Supreme Court's ruling in Concepcion, numerous courts, at both the state and federal level, found arbitration agreements substantively unconscionable where the rules of the arbitral forum allowed for only minimal discovery or where the affect of the discovery rules operated solely to one side's benefit. See, e.g., Ontiveros v. DHL Express (USA), Inc., 164 Cal.App.4th 494, 513, 79 Cal.Rptr.3d 471 (2008) (finding arbitration agreement substantively unconscionable because it allowed for only one deposition absent a showing of substantial need); Fitz v. NCR Corp., 118 Cal.App.4th 702, 716-17, 13 Cal.Rptr.3d 88 (2004) (finding arbitration agreement was substantially unconscionable because, "[t]hough NCR contends that the ACT policy's limits on discovery are mutual because they apply to both parties, the curtailment of discovery to only two depositions does not have mutual effect and does not provide Fitz with sufficient discovery to vindicate her rights"); see also Doubt v. NCR Corp., No. C 09-05917 SBA, 2010 WL 3619854, at *7 (N.D.Cal. Sep. 13, 2010) (citing Fitz and finding arbitration agreement substantively unconscionable where it limited discovery to only two depositions (aside from depositions of any expert witnesses expected to testify at the hearing) unless the arbitrator found a "compelling need to allow it"). Indeed, Mr. Martin relies on pre-Concepcion decisions in support of her argument. See Opposition, ECF No. 44 at 18 (citing Fitz, 118 Cal.App.4th at 717-18, 13 Cal.Rptr.3d 88; Martinez v. Master Protection Corp., 118 Cal.App.4th 107, 118-19, 12 Cal.Rptr.3d 663 (2004); Kinney v. United HealthCare Servs., Inc., 70 Cal.App.4th 1322, 1322, 83 Cal.Rptr.2d 348 (1999)).

Concepcion, however, suggests that limitations on arbitral discovery no longer support a finding of substantive unconscionability. The Supreme Court provided the following guidance:

Accordingly, the court finds that in this post-Concepcion landscape, the arbitration agreement is not substantively unconscionable. See Concepcion, 131 S.Ct. at 1747.

V. CONCLUSION

Based on the foregoing, the court finds that the arbitration agreement at issue is procedurally unconscionable, but not substantively unconscionable. Hertz's motion to compel arbitration, then, is GRANTED.

A Further Case Management Conference is scheduled for August 9, 2012. As discussed at the June 21, 2012 hearing, by that date, the parties should have completed their depositions and engaged in the private mediation described in their March 29, 2012 case management conference statement. See 3/29/2012 CMC Statement, ECF No. 33. The parties then will be better situated to discuss their next steps (including the interplay with the new, related case, Lucas, et al. v. Daihatsu Motor Co., et al., No. C12-02644 LB).

This disposes of ECF No. 37.

IT IS SO ORDERED.