But Procedural Unconscionability Was Low.
After Diaz and Martinez filed suit for various employment-related claims, their employer Hutchinson moved unsuccessfully to compel arbitration, and appealed. Diaz et al. v. Hutchinson Aerospace & Industry, Inc., et al., B271563 (2/8 10/27/17) (Flier, Bigelow, Rubin) (unpublished).
The Court of Appeal followed the template for analyzing unconscionability of the arbitration provision: procedural unconscionability, substantive unconscionability, severance.
Procedural unconscionability: low. Simple contract of adhesion.
Substantive unconscionability: high. The agreement was lop-sided, because the employer did not need to seek arbitration to obtain injunctive relief to enforce a confidentiality agreement. And discovery was too limited to allow Diaz and Martinez to adequately vindicate their rights: the agreement limited discovery to one set of 35 interrogatories, one set of document demands, one deposition, "and it expressly barred any further discovery."
Severance: multiple unconscionable provisions (two here) allowed the trial court, acting within an abuse of discretion standard, to refuse to sever unconscionable provisions.
COMMENT: Baltazar v. Forever 21, Inc., 62 Cal.4th 1237 (2016) allows a carve-out for an employer to reserve its statutory rights to seek provisional remedies in court during the pendency of arbitration -- after all, that is allowed by Cal. Code of Civ. Proc., section 1281.8(b). However, Baltazar didn't help the employer here, because the carve-out for injunctive relief was not limited to provisional remedies.
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