Filed 3/20/15 Laborers Pacific Southwest Regional Organizing Coalition v. Gomez CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



LABORERS PACIFIC SOUTHWEST                                          D065958
REGIONAL ORGANIZING COALITION,

         Plaintiff and Appellant,
                                                                    (Super. Ct. No.
         v.                                                          37-2013-00079562-CU-PT-CTL)

DEMETRIO GOMEZ, JR., et al,

         Defendants and Respondents.


         APPEAL from an order of the Superior Court of San Diego County, Lisa C.

Schall, Judge. Reversed with directions.

         Reich Adell & Cvitan and Carlos Roberto Perez for Plaintiff and Appellant.

         Michael N. Jackman for Defendant and Respondent Julie Su.

         No appearance for Defendant and Respondent Gomez.
                                              I.

                                     INTRODUCTION

       Laborers Pacific Southwest Regional Organizing Coalition (Coalition) appeals

from an order denying its first amended petition to compel arbitration, and subsequent

motion to compel arbitration, of a complaint that its former employee, Demetrio Gomez,

Jr. (Gomez) filed with the California Labor Commissioner (the Commissioner) to recover

unpaid overtime pay, liquidated damages for failure to pay minimum wage, vacation pay,

and statutory penalties.1 Coalition contends that the court erred in finding the arbitration

agreement between Coalition and Gomez to be unconscionable and therefore

unenforceable. We agree and, accordingly, reverse.

                                              II.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Gomez was employed by Coalition from August 4, 2003 to January 3, 2013.

According to Gomez's declaration in opposition to Coalition's motion to compel

arbitration, he and approximately 25 other Coalition employees attended a meeting on

November 9, 2012 in which two management employees of Coalition presented Gomez

and the other employees with an arbitration agreement and told them that they had to sign

1      Julie Su, in her capacity as the commissioner and chief of the Division of Labor
Standards Enforcement (DLSE), filed a response to Coalition's petition and filed the
respondent's brief in this appeal. Although the Commissioner's response below was filed
after Coalition filed its first amended petition to compel arbitration, the response refers to
Coalition's "unverified Petition to Compel Arbitration," rather than to the first amended
petition. The Commissioner's response presumably was intended to be to the first
amended petition.
                                               2
the agreement to continue working there.2 Gomez and the other employees were not

given an opportunity to examine the arbitration agreement in detail or consult with

counsel before they signed the agreement, and no one from Coalition explained the

agreement to them or discussed the effect that it would have on their rights as employees.

The employees were told that they had to turn in the signed agreement before they left the

meeting.

       Gomez signed the arbitration agreement. In his declaration, Gomez averred that

he did "not know any of the technical rules of law that are provided for in the arbitration

agreement," and that he did not believe that he could "go to arbitration under this

agreement without an attorney to help [him] understand what laws apply and how the

rules work." He stated that he was unable to afford counsel and lacked sufficient assets

to enable him to hire an attorney.

       The arbitration agreement requires arbitration of any dispute between Gomez and

Coalition relating to his employment. The agreement states, in relevant part: "In the

event of any question, claim, controversy, dispute, or disagreement of any kind or

character arising out of or during the course of or in any manner relating to the

employment relationship, or termination thereof, between the parties, the parties

expressly agree to resolve the issue or issues by arbitration in accordance with the Labor

Arbitration Rules of the American Arbitration Association in effect on the date of

demand of arbitration. The Coalition will provide the employee with a copy of the

2      The arbitration agreement was contained in a new employment manual.
                                           3
applicable Labor Arbitration Rules, at the Coalition's sole cost and expense, reasonably

promptly after receipt of written request for such Labor Arbitration Rules from

Employee."

       The arbitration agreement further provides: "The claims covered by this

Agreement include, but are not limited to, claims for wages or other compensation due;

claims for breach of any contract or covenant (express or implied); . . . claims for benefits

. . . ; and claims for violation of any Federal, state, or other governmental law, statute,

regulation or ordinance . . . ." The arbitration agreement excludes from arbitration only

employee claims for workers' compensation or unemployment compensation benefits.

       Regarding fees and costs, the arbitration agreement provides: "The Coalition will

pay the American Arbitration Association case processing fees, the fees and costs of the

Arbitrator and any hearing-associated room rental charges. Except as otherwise provided

herein, all other expenses shall be paid by the party incurring them."

       After his employment with Coalition ended, Gomez filed a complaint with the

Commissioner, seeking to recover unpaid overtime pay, liquidated damages for failure to

pay minimum wage, vacation pay, and wages accrued under Labor Code3 section 203, as

a penalty. In November 2013, the Commissioner initiated a "Berman" hearing under




3      All subsequent statutory references are to the Labor Code unless otherwise noted.

                                              4
section 98 et seq. on Gomez's complaint.4 Coalition attended the Berman hearing on the

initially scheduled date and requested that the matter be stayed and deferred to arbitration

because of the arbitration agreement between Coalition and Gomez. The hearing officer

denied the request because Coalition had not filed a petition to compel arbitration. The

hearing officer also denied Coalition's request for a brief stay to enable it to file a petition

to compel arbitration and directed the parties to proceed with the hearing. However,




4        The California Supreme Court explained the Berman hearing process as follows:
" ' "If an employer fails to pay wages in the amount, time or manner required by contract
or by statute, the employee has two principal options. The employee may seek judicial
relief by filing an ordinary civil action against the employer for breach of contract and/or
for the wages prescribed by statute. (§§ 218, 1194.) Or the employee may seek
administrative relief by filing a wage claim with the commissioner pursuant to a special
statutory scheme codified in sections 98 to 98.8. The latter option was added by
legislation enacted in 1976 . . . and is commonly known as the 'Berman' hearing
procedure after the name of its sponsor.' " [Citation.]
         " 'Once an employee files a complaint with the Labor Commissioner for
nonpayment of wages, section 98, subdivision (a) " 'provides for three alternatives: the
commissioner may either accept the matter and conduct an administrative hearing
[citation], prosecute a civil action for the collection of wages and other money payable to
employees arising out of an employment relationship [citation], or take no further action
on the complaint. [Citation.]' " [Citation.] "If the commissioner decides to accept the
matter and conduct an administrative hearing, he or she must hold the hearing within 90
days." [Citation.] Moreover, prior to holding a Berman hearing or pursuing a civil
action, the Labor Commissioner's staff may attempt to settle claims either informally or
through a conference between the parties.' " (Sonic-Calabasas A., Inc. v. Moreno (2013)
57 Cal.4th 1109, 1127-1128 (Sonic II).)
         We will refer to the California Supreme Court's opinion at 57 Cal.4th 1109 as
Sonic II to distinguish it from the court's earlier opinion in the same case, Sonic-
Calabasas A., Inc. v. Moreno (2011) 51 Cal.4th 659 (Sonic I). The United States
Supreme Court granted certiorari in Sonic I, vacated the judgment, and remanded the case
to the California Supreme Court for further consideration in light of AT&T Mobility LLC
v. Concepcion (2011) 563 U.S. ___ [131 S.Ct. 1740]. (Sonic II, supra, 57 Cal.4th at p.
1124.)
                                                5
because it was late in the day, the hearing proceeded for only approximately one hour,

after which the hearing officer continued the matter to February 10, 2014.

       Coalition filed a petition to compel arbitration on December 2, 2013. On January

6, 2014, Coalition sent a letter to the Commissioner advising the Commissioner that it

had filed a petition to compel arbitration in the superior court and that a hearing date on

the petition had been set for February 21, 2014. Coalition requested that the

Commissioner stay the Berman hearing on Gomez's complaint until its petition to compel

arbitration was resolved. In a letter in response to Coalition's request for a stay, the

hearing officer denied the request on the ground "that the facts do not meet Division

standards for granting a continuance, i.e., 'extreme circumstances,' " and informed

Coalition that the Berman hearing would go forward as scheduled on February 10, 2014.

       Coalition filed a first amended petition to compel arbitration on January 22, 2014

that added the Commissioner as a respondent. A week later, Coalition filed a "Motion to

Compel Arbitration and Stay Proceedings" in which it asked the court to stay the

proceeding before the Commissioner.5 The Commissioner agreed to stay the Berman

proceeding until after the date of the hearing on Coalition's petition/motion to compel




5      It is unnecessary to file a "motion" to compel arbitration after filing a petition to
compel arbitration because Code of Civil Procedure section 1290.2 provides that a
petition to compel arbitration "shall be heard in a summary way in the manner and upon
the notice provided by law for the making and hearing of motions . . . ."

                                              6
arbitration and filed a response to the amended petition.6 The Commissioner also filed

opposition points and authorities to the petition to compel arbitration, in which the

Commissioner argued that the subject arbitration agreement was both procedurally and

substantively unconscionable. The Commissioner argued that the agreement was

procedurally unconscionable because Gomez was given the agreement to sign under

threat of discharge, and he was provided neither the opportunity to negotiate nor time to

review or seek advice regarding the agreement. The Commissioner argued that the

agreement was substantively unconscionable because it failed to provide an accessible

arbitral forum in which employees could effectively vindicate their statutory rights.

       The trial court denied Coalition's first amended petition and motion to compel

arbitration. The court ruled that the arbitration agreement was procedurally

unconscionable because the court was "not persuaded" that Coalition had provided

Gomez an opportunity to negotiate or reject the agreement. With respect to substantive

unconscionability, the court cited Sonic II, supra, 57 Cal.4th at page 1143 for the

principle that the "focus is on the terms of the agreement and whether those terms are

'unduly harsh' or 'unreasonably one-sided.' " The trial court continued: "The evidence

presented through the briefs and at the hearing indicates to the Court that arbitration of

[Gomez's] overtime claim does indeed call for legal assistance and it appears Mr. Gomez

is unable to achieve that at this time. The costs involved in retaining counsel could have


6      The Commissioner later agreed to extend the stay of the Berman hearing pending
the outcome of this appeal.
                                           7
the effect of discouraging pursuit of the claim, which is contrary to the state of the law.

In the context of wage disputes, the goal is to 'facilitate[] accessible, affordable resolution

of [such] disputes,' whether that be via a Berman hearing or contractual arbitration.

[(Sonic II, supra, at p. 1147.)] Under the circumstances of this case, the Court is not

persuaded that contractual arbitration will meet [Sonic II's] goals."

                                              III.

                                       DISCUSSION

       "There is a strong public policy in favor of arbitration. [Citations.] [¶] Under

both the Federal Arbitration Act (FAA) and the California Arbitration Act (CAA),

arbitration agreements are valid, irrevocable and enforceable except upon grounds that

exist for revocation of the contract generally.[7] [Citations.] [¶] . . . [¶] Like any other

contract, an agreement to arbitrate is subject to revocation if the agreement is

unconscionable. [Citations.] . . . [¶] Absent conflicting extrinsic evidence, the validity

of an arbitration clause, including whether it is subject to revocation as unconscionable, is

a question of law subject to de novo review." (Serpa v. California Surety Investigations,

Inc. (2013) 215 Cal.App.4th 695, 701-702, fn. omitted (Serpa).) "The standard of review

where the trial court resolved disputed facts in ruling on a motion to compel arbitration is

7       Code of Civil Procedure section 1281.2 provides: "On petition of a party to an
arbitration agreement alleging the existence of a written agreement to arbitrate a
controversy and that a party thereto refuses to arbitrate such controversy, the court shall
order the petitioner and the respondent to arbitrate the controversy if it determines that an
agreement to arbitrate the controversy exists, unless it determines that: [¶] (a) The right to
compel arbitration has been waived by the petitioner; or [¶] (b) Grounds exist for the
revocation of the agreement."
                                              8
substantial evidence." (Peng v. First Republic Bank (2013) 219 Cal.App.4th 1462,

1468.) The strong public policy in favor of arbitration requires courts to resolve any

doubts regarding the arbitrability of a dispute in favor of arbitration. (Coast Plaza

Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 686.)

       "Unconscionability consists of both procedural and substantive elements. The

procedural element addresses the circumstances of contract negotiation and formation,

focusing on oppression or surprise due to unequal bargaining power. [Citations.]

Substantive unconscionability pertains to the fairness of an agreement's actual terms and

to assessments of whether they are overly harsh or one-sided." (Pinnacle Museum Tower

Assn. v. Pinnacle Market Development (US) LLC (2012) 55 Cal.4th 223, 246

(Pinnacle).)8 "The party resisting arbitration bears the burden of proving

unconscionability. [Citations.] Both procedural unconscionability and substantive

unconscionability must be shown, but 'they need not be present in the same degree' and

are evaluated on ' "a sliding scale." ' [Citation.] '[T]he more substantively oppressive the

8       The California Supreme Court in Pinnacle stated 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." ' " (Pinnacle, supra, 55 Cal.4th
at p. 246.) The California Supreme Court in Sonic II noted that a number of Courts of
Appeal have also "used the shock the conscience standard in arbitration cases." (Sonic II,
supra, 57 Cal.4th at pp. 1159-1160.) However, the Sonic II majority used the phrase
"unreasonably one-sided" to describe substantive unconscionability (Id. at pp. 1125,
1146), and declined to decide "whether these different formulations actually constitute
different standards in practice and whether one is more objective than the other . . . ." (Id.
at p. 1160.) The Sonic II court stated: "It is enough to observe that courts, including
ours, have used various nonexclusive formulations to capture the notion that
unconscionability requires a substantial degree of unfairness beyond 'a simple old-
fashioned bad bargain.' " (Ibid.)
                                               9
contract term, the less evidence of procedural unconscionability is required to come to the

conclusion that the term is unenforceable, and vice versa.' " (Id. at p. 247.)

       We conclude that the trial court reasonably found that the subject arbitration

agreement is procedurally unconscionable based on the uncontroverted statements in

Gomez's declaration that he was presented with the arbitration agreement in a meeting

and told that he had to sign it to continue working for Coalition, and had to turn in the

signed agreement before he left the meeting.9 "It is well settled that adhesion contracts

in the employment context, that is, those contracts offered to employees on a take-it-or-

leave-it basis, typically contain some aspects of procedural unconscionability." (Serpa,

supra, 215 Cal.App.4th at p. 704.)

       We further conclude, however, that Gomez has not met his burden of showing

substantive unconscionability. The California Supreme Court in Sonic II provided

guidance to courts in determining whether an arbitration agreement that includes a waiver

of the right to a Berman hearing is substantively unconscionable. The Sonic II court

explained: "Although a court may not refuse to enforce an arbitration agreement imposed

on an employee as a condition of employment simply because it requires the employee to

bypass a Berman hearing, such an agreement may be unconscionable if it is otherwise

unreasonably one-sided in favor of the employer. . . . [T]he Berman statutes confer

important benefits on wage claimants by lowering the costs of pursuing their claims and

9      Coalition filed evidentiary objections to Gomez's declaration, but did not present
evidence that controverted the facts stated in Gomez's declaration. The court did not rule
on the evidentiary objections.
                                             10
by ensuring that they are able to enforce judgments in their favor. There is no reason

why an arbitral forum cannot provide these benefits, and an employee's surrender of such

benefits does not necessarily make the agreement unconscionable. The fundamental

fairness of the bargain, as with all contracts, will depend on what benefits the employee

received under the agreement's substantive terms and the totality of the circumstances

surrounding the formation of the agreement." (Sonic II, supra, 57 Cal.4th at p. 1125.)

       The Sonic II court further explained that "the core concern of unconscionability

doctrine is the ' " 'absence of meaningful choice on the part of one of the parties together

with contract terms which are unreasonably favorable to the other party.' " ' [Citations.]

The unconscionability doctrine ensures that contracts, particularly contracts of adhesion,

do not impose terms that have been variously described as ' " 'overly harsh' " ' [citation],

' "unduly oppressive' " [citation], ' "so one-sided as to 'shock the conscience' " ' [citation],

or 'unfairly one-sided' [citation]. All of these formulations point to the central idea that

the unconscionability doctrine is concerned not with 'a simple old-fashioned bad bargain'

[citation], but with terms that are 'unreasonably favorable to the more powerful party'

[citation]." (Sonic II, supra, 57 Cal.4th at p. 1145.) Thus, " ' "[t]he paramount

consideration in assessing [substantive] unconscionability is mutuality." ' " (Carmona v.

Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 85 (Carmona);

Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 120

["[A]rbitration agreement imposed in an adhesive context lacks basic fairness and

mutuality if it requires one contracting party, but not the other, to arbitrate all claims

                                              11
arising out of the same transaction or occurrence or series of transactions or

occurrences"].)

       We find nothing overly harsh, unduly oppressive, or unfairly one-sided about the

arbitration agreement in this case, and the Commissioner does not contend that the

agreement is one-sided. There are no provisions in the agreement that give Coalition an

unfair advantage over Gomez or create any lack of mutuality. In Carmona, the Court of

Appeal determined that an arbitration agreement lacked mutuality, and was therefore

substantively unconscionable, because it required arbitration for claims of employees, but

gave the employer a choice of forums for its claims against employees for breach of a

confidentiality agreement. (Carmona, supra, 226 Cal.App.4th at p. 86-88.) The

Carmona court additionally found that the arbitration agreement lacked mutuality

because it contained a unilateral fee-shifting provision that required employees to pay any

attorney fees that the employer incurred to enforce its rights under the employment

agreement, and it effectively created a presumption of irreparable harm to the employer

in its claims against employees for breach of the confidentiality agreement, but did not

state a reciprocal presumption of harm favoring employees in their claims against the

employer. (Id. at pp. 88-89.) Mercuro v. Superior Court (2002) 96 Cal.App.4th 167

(Mercuro) similarly illustrates the lack of mutuality that is required to render an

arbitration agreement substantively unconscionable. The Court of Appeal in Mercuro

determined that the arbitration agreement at issue was substantively unconscionable for,

among other reasons, lack of mutuality because it required arbitration of claims that

                                             12
employees were most likely to bring against the employer but specifically excluded

claims that the employer was most likely to bring against employees. (Id. at pp. 175-176,

179.) Thus, the arbitration agreements that were determined to be substantively

unconscionable in Carmona and Mercuro were blatantly and unfairly one-sided. No such

patent lack of mutuality is present in the arbitration agreement at issue in this case.

       The Sonic II court emphasized that "[w]aiver of [the] protections [that a Berman

hearing provides] does not necessarily render an arbitration agreement unenforceable, nor

does it render an arbitration agreement unconscionable per se. But waiver of these

protections in the context of an agreement that does not provide an employee with an

accessible and affordable arbitral forum for resolving wage disputes may support a

finding of unconscionability." (Sonic II, supra, 57 Cal.4th at p. 1146.) However, "[i]n

evaluating the substantive terms of an arbitration agreement, a court applying

unconscionability doctrine must consider not only what features of dispute resolution the

agreement eliminates but also what features it contemplates." (Ibid., italics added.)

       By its terms, the arbitration agreement in this case contemplates providing "a final

and binding method for [employees] and [Coalition] to use in the event a question,

dispute, or disagreement of any kind or character arises . . . regarding the employment

relationship between them that they are unable to resolve themselves." (Italics added.)

Thus, a significant feature of the agreement is that the arbitration decision will be final

and not subject to challenge by appeal, as an administrative decision in a Berman

proceeding would be. An additional feature of the arbitration agreement that benefits

                                              13
employees is the provision that Coalition "will pay the American Arbitration Association

case processing fees, the fees and costs of the Arbitrator and any hearing-associated room

rental charges." This provision brings the agreement within Sonic II's requirement that

"an adhesive arbitration agreement that compels the surrender of Berman protections as a

condition of employment [must] provide for accessible, affordable resolution of wage

disputes." (Sonic II, supra, 57 Cal.4th at p. 1150.)

       As noted above, the trial court based its determination of substantive

unconscionability on the finding that "arbitration of [Gomez's] claims [calls] for legal

assistance and it appears that Mr. Gomez is unable to achieve that at this time." The

court concluded that "[t]he costs involved in retaining counsel could have the effect of

discouraging pursuit of the claim, which is contrary to the state of the law."

       The fact that the arbitration agreement does not require Coalition to bear the cost

of legal counsel to represent Gomez in the arbitration does not support a finding that the

arbitral scheme contemplated by the agreement is substantively unconscionable. As the

California Supreme Court explained in Sonic II, "[t]he unconscionability inquiry is not a

license for courts to impose their renditions of an ideal arbitral scheme. Rather, in the

context of a standard contract of adhesion setting forth conditions of employment, the

unconscionability inquiry focuses on whether the arbitral scheme imposes costs and risks

on a wage claimant that make the resolution of the wage dispute inaccessible and

unaffordable, and thereby 'effectively blocks every forum for the redress of disputes,



                                             14
including arbitration itself.' " (Sonic II, supra, 57 Cal.4th at pp. 1147-1148, italics

added.)

       We are aware of no authority supporting the proposition that an employee's having

to bear the cost of retaining counsel to represent him or her in the arbitration of a wage

claim constitutes imposition of the type of "costs and risks . . . that make the resolution of

the wage dispute inaccessible and unaffordable, and thereby 'effectively blocks every

forum for the redress of disputes, including arbitration itself.' " (Sonic II, supra, 57

Cal.4th at p. 1148.) An arbitration agreement, like the one in the present case, that does

not require the employer to provide the employee with counsel in the arbitration of a

wage dispute but otherwise provides the employee with "an accessible and affordable

arbitral forum for resolving wage disputes" (id. at p. 1146) cannot be deemed

substantively unconscionable solely because the employee will have to pay for his or her

own counsel, if the employee chooses to be represented by counsel.

       The Commissioner cites the benefits that a Berman hearing provides to employees

as summarized by the Sonic II court,10 and characterizes the trial court's finding of

substantive unconscionability based on Gomez's inability to afford counsel in the

arbitration as the court's having focused on the employee's right to be represented by the




10     Among other benefits, the Sonic II court noted that "section 98.4 provides that a
wage claimant who is 'financially unable to afford counsel' may be represented by the
commissioner in the event the employer appeals and 'shall' be represented by the
commissioner if the employee seeks to uphold a Berman hearing award." (Sonic II,
supra, 57 Cal.4th at p. 1130.)
                                            15
commissioner in an appeal of the Berman hearing decision to superior court.11 The

Commissioner argues that an arbitration agreement that forces an employee to forfeit that

particular benefit of the Berman procedure "does not provide equivalent protections to a

wage claimant in the arbitration arena, and therefore does not provide the accessible and

affordable process contemplated by the law," and "results in substantive

unconscionability."

       As our discussion above indicates, we do not share the Commissioner's view that

Gomez's forfeiture of the right to possibly be represented by the Commissioner in an

appeal from a Berman decision renders the arbitration agreement substantively

unconscionable simply because Gomez is unable to afford counsel to represent him in the

arbitration. The Sonic II court observed that "there is no single formula for designing an

arbitration process that provides an effective and low-cost approach to resolving wage

disputes. There are potentially many ways to structure arbitration, without replicating the

Berman protections, so that it facilitates accessible, affordable resolution of wage

disputes. [There is] no reason to believe that the specific elements of the Berman statutes

are the only way to achieve this goal or that employees will be unable to pursue their

claims effectively without initial resort to an administrative hearing as opposed to an

adequate arbitral forum." (Sonic II, supra, 57 Cal.4th at p. 1147.) The Sonic II court


11     We fail to see the connection between the court's finding of substantive
unconscionability based on Gomez's inability to afford counsel in the arbitration and an
employee's right under section 98.4 to be represented by the commissioner in an appeal
of the Berman hearing decision to superior court.
                                            16
expressly held that "[w]aiver of the Berman protections will not, by itself, support a

finding of unconscionability where the arbitral scheme at issue provides employees with

an accessible and affordable process for resolving wage disputes." (Id. at pp. 1147-

1148.) The Commissioner's argument that the subject arbitration agreement is

substantively unconscionable as applied to Gomez because he is unable to afford counsel

is contrary to this principle.12

       "In sum, unconscionability doctrine does not mandate the adoption of any

particular form of dispute resolution mechanism, and courts may not decline to enforce

an arbitration agreement simply on the ground that it appears to be a bad bargain or that

one party could have done better. Unconscionability doctrine is instead concerned with

whether the agreement is unreasonably favorable to one party, considering in context 'its

commercial setting, purpose, and effect.' " (Sonic II, supra, 57 Cal.4th at p. 1148.)

       Bearing in mind the strong public policy in favor of arbitration and the

requirement that we resolve any doubts regarding the arbitrability of a dispute in favor of

arbitration (Coast Plaza Doctors Hospital v. Blue Cross of California, supra, 83

Cal.App.4th at p. 686), we conclude that the Commissioner has not met her burden of

showing that the subject arbitration agreement is unreasonably favorable to Coalition and

therefore substantively unconscionable. The arbitration agreement in this case satisfies


12      Under the Commissioner's reasoning, an arbitration agreement that requires waiver
of a Berman hearing would never be enforceable against an employee who shows an
inability to afford counsel in the arbitration unless the agreement provides that the
employer will pay the cost of the employee's counsel.
                                               17
Sonic II's requirement of providing employees with an accessible and affordable process

for resolving wage disputes. "[T]he fact that arbitration supplants an administrative

hearing cannot be a basis for finding [the] arbitration agreement unconscionable." (Sonic

II, supra, 57 Cal.4th at 1146.) Because the arbitration agreement is not subject to

revocation on the ground that it is unconscionable, Coalition's petition to compel

arbitration must be granted. (Code Civ. Proc., § 1281.2.)

                                                 IV.

                                         DISPOSITION

       The order denying Coalition's first amended petition to compel arbitration and

motion to compel arbitration and stay proceedings is reversed. The court is directed to

enter a new order granting the first amended petition to compel arbitration and motion to

compel arbitration, and staying the Berman proceedings before the Commissioner until

completion of the arbitration. Coalition is awarded its costs on appeal.




                                                                               AARON, J.

WE CONCUR:



              McCONNELL, P. J.



                         IRION, J.


                                            18
