Filed 11/2/15 Guerra v. Long Beach Care Center CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


PAOLO GUERRA,                                                        B257157

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BC518902)
         v.

LONG BEACH CARE CENTER, INC.,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County.
Kenneth Freeman, Judge. Reversed with directions.


         Magnanimo & Dean, Frank A. Magnanimo, Rebecca L. Gombos for Defendant
and Appellant.


         Mahoney Law Group, Kevin Mahoney for Plaintiff and Respondent.


                  ___________________________________________________
       An employee signed an arbitration agreement, then filed a class action lawsuit
against his employer. When the employer moved to compel arbitration, the trial court
deemed the agreement unconscionable and denied the motion. We reverse. The
arbitration agreement is not unconscionable, and a single improper sentence relating to
arbitrator fees is severable.
                                           FACTS
       For 46 days, Paolo Guerra was employed at Long Beach Care Center, Inc. (LBCC)
as a laundry attendant. Guerra signed a two-page Mediation and Arbitration Agreement
(the Agreement) on the day he was hired. He and LBCC agreed to arbitrate “any disputes
[and] all claims,” including “all employment and employment related matters,”
specifically “claims regarding wages, compensation or employment benefits, and any and
all claims covered by any federal, state or local laws . . . .” The Agreement reads, “Both
parties to this contract, by entering into it, are giving up their constitutional right to have
any such dispute decide[d] in a court of law before a jury, and instead are accepting the
use of mediation and arbitration.”
       One month after Guerra was hired, his attorney threatened LBCC with a class
action lawsuit. He then filed a complaint alleging that LBCC failed to: pay overtime
wages, provide meal and rest periods, keep accurate payroll records, or pay wages at the
end of employment. He asserts that LBCC’s conduct violated the Labor Code, and was
an unfair or unlawful business practice.
       LBCC moved to stay the lawsuit and compel arbitration because the Agreement
covers all employment-related disputes and does not authorize class actions. LBCC
asserted that Guerra expressly agreed to arbitrate his individual claims. No exception to
arbitration applies, the Agreement is not unconscionable, and it meets legal standards for
employment arbitration agreements.
       In opposition, Guerra argued that the Agreement is unconscionable and adhesive,
and some of his claims are not arbitrable. He declared that he was distracted by a training
video when given the Agreement to review and sign. He did not understand the
Agreement when he signed it.

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                            THE TRIAL COURT’S RULING
       The court found “no dispute that there was an agreement to arbitrate here.” It also
found that the Agreement is unconscionable. Procedural unconscionability was shown
because the Agreement was presented on a “take it or leave it” basis with no opportunity
for meaningful negotiation, and Guerra had to sign it to start work. This was oppressive.
Guerra was surprised because he was “distracted” from reviewing the Agreement, and the
Agreement does not specify any arbitration rules, identifying “California law” as the
basis for dispute resolution.
       Guerra also demonstrated substantive unconscionability. The Agreement is one-
sided because it bars claimants who fail to pursue arbitration “with reasonable diligence,”
an undefined term. Other substantive provisions that are unconscionable include a one-
sided manner of selecting and paying the arbitrator; also, the equal allocation of attorney
fees and costs between the parties, unless the arbitrator rules that applicable law requires
otherwise, undercuts a prevailing employee’s right to recover fees under the Labor Code.
       The court refused to sever unconscionable provisions or limit their application to
avoid an unconscionable result because there is “more than one” unlawful provision in
the Agreement. It denied LBCC’s motion. LBCC appeals.
                                       DISCUSSION
1. Appeal and Review
       The denial of LBCC’s motion to compel is appealable. (Code Civ. Proc., § 1294,
subd. (a); Mercury Ins. Group v. Superior Court (1998) 19 Cal.4th 332, 349.) If the
extrinsic evidence is not in conflict, the trial court’s refusal to compel arbitration presents
a question of law. (Suh v. Superior Court (2010) 181 Cal.App.4th 1504, 1511-1512;
Mercuro v. Superior Court (2002) 96 Cal.App.4th 167, 174.) There is no conflicting
extrinsic evidence in this case. Review is de novo.
2. Unconscionability
       California has “a ‘strong public policy in favor of arbitration as a speedy and
relatively inexpensive means of dispute resolution.’” (Moncharsh v. Heily & Blase
(1992) 3 Cal.4th 1, 9; St. Agnes Medical Center v. PacifiCare of California (2003) 31

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Cal.4th 1187, 1204.) Consequently, the courts will indulge every intendment to give
effect to arbitration contracts. (Moncharsh, at p. 9.) Any doubts concerning the
construction of the contract, the scope of arbitrable issues, or defenses to arbitration
should be resolved in favor of arbitration. (Macaulay v. Norlander (1992) 12
Cal.App.4th 1, 6.)
       Once the party petitioning for arbitration shows the existence of an arbitration
agreement, “the court shall order the petitioner and the respondent to arbitrate the
controversy” unless there are grounds to revoke the agreement. (Code Civ. Proc.,
§ 1281.2.) The party opposing arbitration bears the burden of proving any defenses, such
as unconscionability. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development
(US), LLC (2012) 55 Cal.4th 223, 236 (Pinnacle); Engalla v. Permanente Medical
Group, Inc. (1997) 15 Cal.4th 951, 972.)
       A party of superior bargaining strength may impose a standardized contract that
leaves the other party only the opportunity to adhere to the contract or reject it.
(Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 113
(Armendariz).) Arbitration agreements imposed as a condition of employment leave no
opportunity to negotiate: most people are not in a position to refuse a job because of an
arbitration requirement. (Id. at pp. 114-115.)
       Guerra was presented with multiple documents, including the Agreement, and
declares, “I was [] told that I must sign the documents in order to start work.” LBCC
does not deny telling Guerra he must sign to start work. Because the Agreement was
imposed “as a condition of employment and there was no opportunity to negotiate,” it is
adhesive. (Armendariz, supra, 24 Cal.4th at pp. 114-115.)
       Adhesiveness alone does not make an arbitration contract unenforceable as a
matter of law. (McManus v. CIBC World Markets Corp. (2003) 109 Cal.App.4th 76, 91.)
If a contract is adhesive, the court then decides whether it is unenforceable because it was
unconscionable at the time it was made. (Civ. Code, § 1670.5, subd. (a); Armendariz,
supra, 24 Cal.4th at p. 113.) “‘One common formulation of unconscionability is that it
refers to ‘“an absence of meaningful choice on the part of one of the parties together with

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contract terms which are unreasonably favorable to the other party.’”’” (Sonic-
Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1133; Sanchez v. Valencia Holding
Co., LLC (2015) 61 Cal.4th 899, 910 (Sanchez).)
       A contract must be both procedurally and substantively unconscionable to be
unenforceable, though not to the same degree. “‘[A] sliding scale is invoked which
disregards the regularity of the procedural process of the contract formation, that creates
the terms, in proportion to the greater harshness or unreasonableness of the substantive
terms themselves.’ [Citations] In other words, the more substantively oppressive the
contract term, the less evidence of procedural unconscionability is required to come to the
conclusion that the term is unenforceable, and vice versa.” (Armendariz, supra, 24
Cal.4th at p. 114; Sanchez, supra, 61 Cal.4th at p. 910.)
       a. Procedural Unconscionability
       Procedural unconscionability focuses on oppression and surprise, due to unequal
bargaining power. (Armendariz, supra, 24 Cal.4th at p. 114; Sanchez, supra, 61 Cal.4th
at p. 910.) With respect to the element of “surprise,” the Agreement was not hidden in
the fine print of a lengthy contract. On the contrary, it is a conspicuous stand-alone
document entitled “Mediation and Arbitration Agreement.” Though he was handed other
documents (including an employee handbook, tax forms, health, safety, confidentiality
and training documents), there is no showing that Guerra was unaware of the Agreement.
       Above Guerra’s signature, in boldface capital letters, is the following: “I have
been given a full opportunity to review and analyze this agreement and may have an
attorney do so. I fully and completely understand all of the terms of this agreement and
am signing it voluntarily, freely, and knowingly.” A party may expressly consent to
arbitrate by signing an agreement, and it “may be binding on a party even if the party
never actually read the clause.” (Pinnacle, supra, 55 Cal.4th at p. 236.) “‘Reasonable
diligence requires the reading of a contract before signing it. A party cannot use his own
lack of diligence to avoid an arbitration agreement,’” and is bound regardless of whether
he read it or was aware of it when the agreement was signed. (Brookwood v. Bank of



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America (1996) 45 Cal.App.4th 1667, 1674; 24 Hour Fitness, Inc. v. Superior Court
(1998) 66 Cal.App.4th 1199, 1215; Pinnacle, supra, 55 Cal.4th at p. 236.)
       Guerra did not declare that he failed to read the Agreement; rather, he states that “I
did not understand [the] arbitration agreement when I signed it.” If he did not understand
it, he must have read it. The element of surprise is not present.
       The Agreement specifies that the arbitrator(s) “shall apply applicable federal
and/or California law. California law regarding the rules of evidence and discovery shall
apply.” The Agreement also indicates that “the arbitration shall be governed by the
California Code of Civil Procedure relating to arbitration.” The trial court found this to
be procedurally unconscionable. Given this state’s well-developed laws, we fail to see
why the Agreement is unconscionable if “California law” governs arbitrations. There is
no authority supporting the notion that state law is inadequate to the task. Indeed, if the
parties fail to specify governing procedures, then the California Arbitration Act controls,
by default. (Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 399-400.)
       The adhesive, take-it-or-leave-it nature of the Agreement, imposed by an employer
with superior bargaining power, “is sufficient to establish some degree of procedural
unconscionability. Yet ‘a finding of procedural unconscionability does not mean that a
contract will not be enforced, but rather that courts will scrutinize the substantive terms
of the contract to ensure they are not manifestly unfair or one-sided.’” (Sanchez, supra,
61 Cal.4th at p. 915; Gentry v. Superior Court (2007) 42 Cal.4th 443, 469.)
       b. Substantive Unconscionability
       An arbitration agreement may be substantively unconscionable if “overly harsh” or
“unfairly one-sided” or “unduly oppressive.” (Sanchez, supra, 61 Cal.4th at pp. 910-911;
Armendariz, supra, 24 Cal.4th at p. 114.) If the agreement is not bilateral, so that only
the employee’s claims are subject to arbitration (but not the employer’s claims), it is
unfairly one-sided. (Armendariz, at pp. 118-119.) Or, if the party imposing arbitration
mandates a post-arbitration proceeding for its own benefit, at the expense of the party
obliged to accept arbitration, the provision may be substantively unconscionable. (Little
v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1071-1072.) A party cannot avoid a

                                              6
contractual obligation because he thinks, in retrospect, that it is unfair; “[n]ot all one-
sided contract provisions are unconscionable.” (Sanchez, at p. 911.)
       Here, arbitration is mutual: both Guerra and LBCC agreed to arbitrate “all
employment and employment-related matters,” stating that “Both parties to this contract,
by entering into it, are giving up their constitutional rights to have any such dispute
decide[d] in a court of law before a jury, and instead are accepting the use of mediation
and arbitration.” (Italics added.) This is not a contract that allows the employer to sue
for damages or injunctive relief, while employees are restricted to arbitration. (See
Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 86-87;
Armendariz, supra, 24 Cal.4th at pp. 115-120.) The parties’ agreement is not unilateral
or unfairly one-sided.
       The trial court found the Agreement substantively unfair because it requires “the
claimant” (meaning either LBCC or Guerra) to pursue arbitration claims “with reasonable
diligence.” State law gives the arbitrator the power to dismiss a dispute for failure to
proceed with reasonable diligence. (Burgess v. Kaiser Foundation Hospitals (1993) 16
Cal.App.4th 1077, 1081.) An arbitration claimant “bears the primary responsibility of
exercising diligence in order to advance progress towards the resolution of its claim.”
(Engalla v. Permanente Medical Group, Inc., supra, 15 Cal.4th at p. 980.) That the
Agreement spells out settled state law does not make it unconscionable.
       Guerra asserts that the Agreement lacks mutuality because it gives LBCC “the
right to unilaterally modify” its terms. The Agreement contains an integration clause
stating that it is the parties’ “entire agreement and understanding” and any changes “must
be in writing and signed by the Facility President.” This is not a unilateral modification
clause: it means that if the parties want to change the Agreement, the only LBCC
employee with authority to consent to changes is its chief executive.
       The Agreement provides that “[e]ach party shall pay for its own costs and
attorneys fees, unless an arbitrator rules that applicable law requires otherwise.” There is
no reason to believe that the arbitrator(s) would not apply the attorney fee provisions



                                               7
contained in the Labor Code, as required by the Agreement. This is consistent with state
law. (Armendariz, supra, 24 Cal.4th at pp. 110-111.)
       The trial court took issue with the selection of the arbitrator(s). If mediation fails,
“each party shall select a party arbitrator and a third neutral arbitrator shall be selected by
the arbitrators appointed by the parties.” Or, the parties may, by mutual written
agreement, choose to select a single neutral arbitrator. Guerra is entitled to participate
fully in the selection process, either by naming his own party arbitrator, or by agreeing in
writing to a neutral third party arbitrator. Guerra is not required to accept a sole
arbitrator, picked by LBCC, who is so closely identified with one of the parties as to be in
fact, if not in name, a party to the contract. (Graham v. Scissor-Tail, Inc. (1981) 28
Cal.3d 807, 824-825.)
       Payment of arbitrator’s fees was another reason cited by the trial court for
invalidating the Agreement. The Agreement states that the single arbitrator’s fees “will
be split equally between the employee and [LBCC] except hourly employees will not be
required to pay more than $500.00.” This provision is fair because $500 is not “beyond
any expense that an employee would be required to bear if the action was brought in
court.” (McManus v. CIBC World Markets Corp., supra, 109 Cal.App.4th at p. 93.) The
cost is essentially the same as filing a court case.
       The Agreement requires that when multiple arbitrators are used, “Each party will
pay the fees and costs associated with their own party arbitrator.” This is the one element
of the Agreement that runs afoul of the law. “[W]hen an employer imposes mandatory
arbitration as a condition of employment, the arbitration agreement or arbitration process
cannot generally require the employee to bear any type of expense that the employee
would not be required to bear if he or she were free to bring the action in court” to ensure
that the employee will not be deterred by greater costs than the cost of litigation.
(Armendariz, supra, 24 Cal.4th at pp. 110-111.) While Guerra would have to pay $435 to
institute litigation in the Los Angeles Superior Court, he would not be required to pay for
the daily expense of having a judge.



                                               8
       The Agreement meets the requirements for a mandatory employment arbitration
agreement, save for one: (1) it provides for arbitrators named by each party, or a
mutually agreeable neutral arbitrator; (2) it provides for discovery pursuant to the Code
of Civil Procedure; (3) it requires a written award; and (4) it allows the same types of
relief that would be available in court. The only requirement that is not met is that
employees must pay arbitrator fees. (Armendariz, supra, 24 Cal.4th at p. 102.)
3. Severability
       As discussed, the Agreement is adhesive because it was imposed as a condition of
employment; however, it is mutual, is not unduly oppressive, nor unfairly one-sided, nor
overly harsh. As a matter of law, we cannot say that the Agreement is “‘“unreasonably
favorable to the more powerful party.’”” (Sanchez, supra, 61 Cal.4th at p. 911.) The
only improper provision in the two-page Agreement is a single sentence relating to the
payment of fees associated with party arbitrators.
       If a contract clause is unconscionable, “the court may refuse to enforce the
contract, or it may enforce the remainder of the contract without the unconscionable
clause, or it may so limit the application of any unconscionable clause as to avoid any
unconscionable result.” (Civ. Code, § 1670.5, subd. (a).) The question is whether the
contract as a whole is “permeated” by unconscionability. (Armendariz, supra, 24 Cal.4th
at p. 122.) If the purpose of the contract is “tainted with illegality” such that it cannot be
enforced, then an illegal provision within it should not be severed; but if the illegality “is
collateral to the main purpose of the contract, and the illegal provision can be extirpated
from the contract by means of severance or restriction, then such severance and
restriction are appropriate.” (Id. at p. 124.)
       The Agreement in this case is not permeated by unconscionability, nor is the
purpose of contract tainted with illegality. “Accordingly, the unconscionable provision
requiring payment of the fees can be severed” from the Agreement. (McManus v. CIBC
World Markets Corp., supra, 109 Cal.App.4th at p. 102.) LBCC concedes that it is
responsible for the cost of the arbitration. We direct the removal of the sentence “Each
party will pay the fees and costs associated with their own party arbitrator” from the

                                                 9
Agreement, and instead impose the costs of the arbitration on LBCC. (Roman v.
Superior Court (2009) 172 Cal.App.4th 1462, 1477-1478.)
4. Class Claims
       The Agreement does not contain an express waiver of class claims. By the same
token, it does not expressly authorize class claims. It is silent on the issue. The parties
submitted no extrinsic evidence that they intended to arbitrate on a classwide basis. Both
sides agree that terms were never discussed when the Agreement was signed.1
       Arbitration is a matter of contract and, as such, “it is a way to resolve those
disputes—but only those disputes—that the parties have agreed to submit to arbitration.”
(First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 943; Garden Fresh
Restaurant Corp. v. Superior Court (2014) 231 Cal.App.4th 678, 684.) It cannot be
presumed that the parties consented to classwide arbitration when the arbitration
agreement is silent on class actions. (Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp.
(2010) 559 U.S. 662, 685; Garden Fresh, at p. 686.) The benefits of arbitration—lower
cost, efficiency, and speed—are reduced in class actions; moreover, due process concerns
arise because an award would “adjudicate the rights of absent parties and bind them, not
just the parties to the arbitration agreement,” and the decision is unreviewable. (Garden
Fresh, at pp. 686-687; Stolt-Neilsen, supra, 559 U.S. at pp. 685-686.) In short,
“[a]rbitration is poorly suited” to class actions, which interfere with the fundamental
attributes of bilateral arbitration. (AT&T Mobility LLC v. Concepcion (2011) 563 U.S.
333 [131 S.Ct. 1740, 1752]; Garden Fresh, at p. 689.)
       Absent evidence of any discussion between the parties about class actions, we
deduce their intent from the language in the Agreement. (Nelsen v. Legacy Partners
Residential, Inc. (2012) 207 Cal.App.4th 1115, 1129.) It reads, “the ‘Facility’ and I agree



1       The trial court did not reach the issue of whether class arbitration is permissible,
after finding the Agreement unconscionable. There is no dispute that the parties did not
discuss class issues at the time of contracting. As a result, the issue is decided as a matter
of law from the language of the Agreement.


                                             10
to mediate and arbitrate any disputes.” By its ordinary meaning, language limiting the
arbitration agreement to the employer and the employee unambiguously negates any
intention to include other employees in the arbitration and contemplates two-party—not
class—arbitration. (Id. at pp. 1130-1131; Kinecta Alternative Financial Solutions, Inc. v.
Superior Court (2012) 205 Cal.App.4th 506, 517-519.)
       Language in the Agreement that the parties intend to “bind all other parties whose
claims may arise out of or relate to the claims covered by this Agreement” must be read
in conjunction with the preceding sentence, relating to LBCC’s affiliates, subsidiaries,
partners, officers, directors, employees or agents. It cannot mean that employees who are
not parties to the Agreement (and who perhaps never signed an arbitration agreement) are
bound by the arbitration decision. It would be a patent due process violation to sweep the
claims of nonparty employees into Guerra’s dispute, without giving them any right to
select their own attorneys and arbitrators, or the opportunity to opt out of the arbitration.
The same analysis applies to contract language stating that the parties consent to the
joinder of persons who “would otherwise be a proper additional party.” Provisions in the
Agreement requiring that a claimant arbitrate in a single proceeding all claims arising
from “the same incident” does not give Guerra the right to arbitrate on behalf of other
employees, only his own wage and hour claims.
                                      DISPOSITION
       The order denying the petition to compel arbitration is reversed. The trial court is
to enter a new order dismissing the class claims and granting the motion to compel
arbitration of Guerra’s individual claims, with the proviso that the one sentence relating
to arbitrator fees and costs be removed, as described in this opinion. Long Beach Care
Center, Inc., is entitled to recover its costs on appeal from Paolo Guerra.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                           BOREN, P.J.
We concur:
              CHAVEZ, J.                   HOFFSTADT, J.

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