Filed 6/3/15 Garrido v. Air Liquide Industrial US 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


MARIO GARRIDO,                                                       B254490

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BC485942)
         v.

AIR LIQUIDE INDUSTRIAL U.S. LP,

         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County.
Amy D. Hogue, Judge. Reversed.


         Littler Mendelson, Nancy E. Pritikin, Dominic J. Messiha, Jennifer Tsao for
Defendant and Appellant.


         Esensten Law, Robert Esensten, Jordan S. Esensten for Plaintiff and Respondent.


                  ___________________________________________________
       The trial court denied a motion to compel arbitration, finding that arbitration was
improper under Gentry v. Superior Court (2007) 42 Cal.4th 443 (Gentry). On appeal,
neither party contends that Gentry is still controlling after its holding was found
abrogated in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348
(Iskanian). We find no remaining basis to deny arbitration, and therefore reverse the trial
court’s order.
                          Factual and Procedural Background
       Defendant and appellant American Air Liquide, Inc. (Air Liquide1) produces and
distributes industrial gases throughout the United States. Plaintiff and respondent Mario
Garrido was hired as a truck driver by Air Liquide in June 2009. Garrido transported Air
Liquide gases to locations in California and neighboring states from Air Liquide’s
Sante Fe Springs production and distribution center.
       Upon his hiring, Garrido entered into an “Alternative Dispute Resolution
Agreement” (the ADR agreement). The ADR agreement stipulates that all disputes
arising out of Garrido’s employment with Air Liquide are to be resolved through
alternative dispute resolution, including arbitration “if necessary.” According to its
terms, the agreement, and any arbitration proceedings, are governed by the Federal
Arbitration Act (9 U.S.C. § 1, et seq.) (FAA).
       The ADR agreement allows the parties to conduct discovery and file motions in
arbitration. Prior to an employee-initiated arbitration, the employee is required to
contribute a sum toward the arbitrator’s fee equal to the then-current filing fee in the
applicable state or federal court for a complaint or first appearance, whichever is lower.
The arbitrator is authorized to provide to the prevailing party all remedies and costs
available under applicable law, and is required to issue a written opinion and award



1      Defendant states that it was named incorrectly in plaintiff’s complaint, and that its
actual name is Air Liquide Industrial U.S. LP. The proper name of defendant is
irrelevant to the matters decided in this appeal, and so we refer generally to defendant as
Air Liquide.


                                              2
stating essential findings and the conclusions upon which the award is based. The ADR
agreement prohibits arbitration on a class, collective, and representative basis, as well as
private attorney general actions.
       Garrido’s employment with Air Liquide was terminated in January 2011. In June
2012, Garrido filed a class action complaint against Air Liquide, alleging that it failed to
provide mandated timely meal periods (Lab. Code, §§ 226.7, 512) and accurate itemized
wage statements (Lab. Code, §§ 226, 226.3), failed to pay compensation due upon
separation of employment (Lab. Code, §§ 201-203), and committed unfair business
practices (Bus. & Prof. Code, § 17200, et seq.).
       Air Liquide promptly moved to compel arbitration of Garrido’s claims. Air
Liquide argued that the ADR agreement is binding and requires Garrido to arbitrate all of
his claims, and that the agreement’s class action waiver should be enforced. Garrido
opposed the motion, arguing that the FAA does not apply to transportation workers like
Garrido under 9 United States Code section 1, and that the ADR agreement is
unenforceable under the California Arbitration Act (Code Civ. Proc., § 1280 et seq.)
(CAA).
       The trial court denied Air Liquide’s motion to compel individual arbitration. It
found that the FAA applied due to the express terms of the ADR agreement, which states
that the agreement and any proceedings are governed by the FAA. However, the court
found that, even under the FAA, the ADR agreement could not be enforced pursuant to
Gentry, because, by denying the ability to bring a class claim, the agreement stood as an
obstacle to an employee’s right to vindicate statutory labor rights.
       Air Liquide timely appealed.
                                      DISCUSSION
       An order denying a petition to compel arbitration is appealable. (Code Civ. Proc.,
§ 1294, subd. (a).) When a trial court’s order is based on a question of law, we review
the denial de novo. (Avery v. Integrated Healthcare Holdings, Inc. (2013) 218
Cal.App.4th 50, 60.) Decisions of fact are reviewed for substantial evidence. (Ibid.)



                                              3
       As noted, the trial court found that denial of Air Liquide’s motion to compel
arbitration was mandated by Gentry. Following the trial court’s order, our Supreme
Court issued its decision in Iskanian, finding that Gentry’s holding was abrogated by a
United States Supreme Court decision, AT&T Mobility LLC v. Concepcion (2011) 563
U.S. __ [131 S.Ct. 1740] (Concepcion). (Iskanian, supra, 59 Cal.4th 348, 364.) Based
on Concepcion, Iskanian held that a state’s refusal to enforce a class waiver on grounds
of public policy or unconscionability was preempted by the FAA. (Iskanian, at pp. 359-
360, 364.)
       Garrido does not submit any reasoned argument supporting the proposition that
Gentry’s holding still constitutes an independent basis for denial of arbitration.2
Accordingly, we turn to the parties’ other contentions regarding the enforceability of the
ADR agreement.
I. The FAA does not apply
       In moving to compel arbitration, Air Liquide asserted, and the trial court agreed,
that the ADR agreement is governed by the FAA. The trial court’s decision was based
entirely on the language of the ADR agreement, which states that the agreement, and any
proceedings held pursuant to it, are subject to the FAA. Garrido contends that the ADR
Agreement is not governed by the FAA because the FAA does not apply to employment
contracts entered into by truck drivers.
       Section 1 of the FAA exempts from coverage of the FAA “contracts of
employment of seamen, railroad employees, or any other class of workers engaged in
foreign or interstate commerce.” (9 U.S.C. § 1; see also Circuit City Stores, Inc. v.
Adams (2001) 532 U.S. 105, 109 (Circuit City).) This “‘any other class of workers


2       Garrido bluntly states that the trial court’s analysis of Gentry remains valid.
Because Garrido offers no reasoned argument or citation to legal authority supporting this
contention, we consider this argument forfeited. (See Hill v. Affirmed Housing Group
(2014) 226 Cal.App.4th 1192, 1200; Provost v. Regents of University of California
(2011) 201 Cal.App.4th 1289, 1300 [omission of analysis and legal authority results in
forfeiture of argument].)


                                              4
engaged in foreign or interstate commerce’” has been defined to mean “transportation
workers.” (Circuit City, at p. 121.)
       Contrary to the trial court’s finding, a transportation worker’s employment
agreement does not become subject to the FAA simply because the agreement declares
that it is subject to the FAA. By stating that it is subject to and governed by the FAA, the
agreement necessarily incorporates section 1 of the FAA, which includes the exemption
for transportation workers. Accordingly, courts have found transportation workers’
employment agreements exempt from the FAA, even when the agreements purport to be
governed by the FAA. (See, e.g., Palcko v. Airborne Express, Inc. (3d Cir. 2004) 372
F.3d 588; Veliz v. Cintas Corp. (N.D.Cal. 2004) 2004 U.S. Dist. LEXIS 32208 (Veliz);
Western Dairy Transport, LLC v. Vasquez (Tex.App. 2014) 2014 Tex.App. LEXIS 8368
(Western Dairy).)
       This still leaves the question of whether Garrido was a “transportation worker”
under section 1 of the FAA. We find that he was. Garrido worked as a truck driver
transporting Air Liquide gases, frequently across state lines. “The most obvious case
where a plaintiff falls under the FAA exemption is where the plaintiff directly transports
goods in interstate, such as [an] interstate truck driver whose primary function is to
deliver mailing packages from one state into another.” (Veliz, supra, 2004 U.S. Dist.
LEXIS 32208 at p. *18.) “The FAA is inapplicable to drivers . . . who are engaged in
interstate commerce.” (Harden v. Roadway Package Systems, Inc. (9th Cir. 2001) 249
F.3d 1137, 1140; see also Western Dairy, supra, 2014 Tex.App. LEXIS at p. *6 [truck
drivers are “indisputably transportation workers”].)
       Citing to Hill v. Rent-A-Center, Inc. (11th Cir. 2005) 398 F.3d 1286, 1290 (Hill),
which found that “Congress was concerned only with giving the arbitration exemption to
‘classes’ of transportation workers within the transportation industry,” Air Liquide argues
that it is not in the transportation industry and so the FAA section 1 exemption cannot
apply. Hill did not delineate the contours of the “transportation industry.” Indeed, it
appears that the term is not rigid. “[T]he more related to the transportation industry an



                                             5
enterprise is, the less necessary it becomes for the employee to be directly transporting
goods.” (Veliz, supra, 2004 U.S. Dist. LEXIS 32208 at p. *23.)
       A significant portion of Air Liquide’s business involves the transportation of its
gases across states lines. Thus, it must be said that Air Liquide is at least somewhat
involved in the transportation industry. And unlike the plaintiff in Hill—an “account
manager” whose truck delivery duties were incidental to his job (398 F.3d at pp. 1287,
1289)—Garrido’ s duty as a truck driver was the transportation of goods. Air Liquide
cites to no authority holding that a truck driver whose responsibility is to move products
across state lines does not fall under section 1 of the FAA. The fact that Garrido
transported Air Liquide’s own products (rather than those of an Air Liquide client) is of
little consequence: “a trucker is a transportation worker regardless of whether he
transports his employer’s goods or the goods of a third party; if he crosses state lines he is
‘actually engaged in the movement of goods in interstate commerce.’” (International
Brotherhood of Teamsters Local Union No. 50 v. Kienstra Precast, LLC (7th Cir. 2012)
702 F.3d 954, 957.)
       Thus, because Garrido was a transportation worker, the FAA does not apply to the
ADR agreement.
II. The CAA does apply
       The parties disagree on whether the CAA applies in the absence of the FAA.
Garrido asserts that, because the ADR agreement does not specifically reference the
CAA, the agreement cannot be subject to the CAA, and since neither the CAA nor the
FAA govern, arbitration of this action is improper.
       Nothing in the CAA, however, requires that an arbitration agreement explicitly
reference the CAA to be enforceable under California law. Code of Civil Procedure
section 1281 provides that “[a] written agreement to submit to arbitration . . . is valid,
enforceable and irrevocable, save upon such grounds as exist for the revocation of any
contract.” California has a “‘strong public policy in favor of arbitration as a speedy and
relatively inexpensive means of dispute resolution.’” (Moncharsh v. Heily & Blase



                                              6
(1992) 3 Cal.4th 1, 9.) Any doubts of arbitrability are resolved in favor of arbitration.
(Wagner Construction Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 26.)
       Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110
(Rodriguez), a case relied on by Garrido, does not support his position. The court in that
appeal found that an agreement to arbitrate pursuant to the FAA was enforceable and that
the plaintiff could not avoid arbitration under Code of Civil Procedure section 1281.2,
subdivision (c). (Rodriguez, at pp. 1117, 1121-1122.) The court did not analyze whether
the CAA would apply had the FAA not governed.
       In contrast, Ruiz v. Sysco Food Services (2004) 122 Cal.App.4th 520 examined the
effect of the CAA on an arbitration agreement that did not explicitly reference the CAA.
The plaintiff in Ruiz argued that California law was not incorporated into an arbitration
provision because the provision did not expressly refer to California law. (Ruiz, at p.
533.) The appellate court deemed the lack of reference immaterial and directed the trial
court to grant the defendant’s petition to compel arbitration under California law. (Id. at
pp. 538-539.) In reaching a similar conclusion, the appellate court in Lagatree v. Luce,
Forward, Hamilton & Scripps (1999) 74 Cal.App.4th 1105 (Lagatree) noted that the
issue of whether it applied the FAA or the CAA to an arbitration agreement “appear[ed]
to be academic,” stating: “Assuming arguendo that the FAA does not apply, we would
assess the validity of the parties’ arbitration agreements under the California Arbitration
Act.” (Lagatree, at pp. 1120-1121.)
       Garrido also contends that Air Liquide waived its right to move for arbitration
under California law by basing its motion to compel arbitration on the FAA. We
disagree. In the trial court, Air Liquide moved for an order “compelling arbitration and
staying this civil action pending . . . arbitration” based on the “valid and enforceable
arbitration agreement that requires Garrido to bring his claims in arbitration, and in his
individual capacity.” Although Air Liquide erroneously argued that arbitration should
proceed under the FAA, it did not contend that arbitration was not compelled or was
improper under the CAA. Moreover, after Garrido argued in his opposition that the FAA
was inapplicable, Air Liquide replied that the ADR agreement was enforceable under

                                              7
California law. Under these circumstances, there is not cause to find that Air Liquide
waived the right to move for arbitration under the CAA.
III. Arbitrability of Labor Code violations
       Garrido next contends that his claims are not arbitrable pursuant to Labor Code
section 229, which provides, in pertinent part, that actions “for the collection of due and
unpaid wages claimed by an individual may be maintained without regard to the
existence of any private agreement to arbitrate.” This exemption from arbitration is
effective, except when preempted by the FAA. (Hoover v. American Income Life Ins.
Co. (2012) 206 Cal.App.4th 1193, 1207.)
       The problem Garrido faces is that none of his claims are for “due and unpaid
wages.” Lane v. Francis Capital Management LLC (2014) 224 Cal.App.4th 676 (Lane)
examined the same Labor Code violations that Garrido alleges existed here. Lane found
that an action under Labor Code section 226.7 was not one for due and unpaid wages, but
rather for a failure to provide mandated meal and rest breaks. (Lane, at p. 684, citing
Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1256-1257 [“‘[A Labor
Code] section 226.7 claim is not an action brought for nonpayment of wages; it is an
action brought for nonprovision of meal or rest breaks.’”].) Similarly, an action under
Labor Code section 226 is not for due and unpaid wages but instead addresses a failure to
provide itemized wage statements, while Labor Code sections 201 through 203 assess
“‘waiting time penalties’” when wages are not immediately paid upon termination.
(Lane, at p. 684.)
       Since none of Garrido’s causes of action seek the recovery of due and unpaid
wages, the exemption from arbitration found in Labor Code section 229 does not apply.
IV. Unconscionability analysis
       Garrido also argues that the ADR agreement cannot be enforced because it is
unconscionable. “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
contract term, the less evidence of procedural unconscionability is required to come to the
conclusion that the term is unenforceable, and vice versa.’” (Pinnacle Museum Tower
Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 247
(Pinnacle).)
       A. Procedural unconscionability
       “[P]rocedural unconscionability requires oppression or surprise. ‘“Oppression
occurs where a contract involves lack of negotiation and meaningful choice, surprise
where the allegedly unconscionable provision is hidden within a prolix printed form.”’”
(Pinnacle, supra, 55 Cal.4th 223, 247.)
       Garrido asserts that the ADR agreement was presented on a “take it or leave it”
basis without any room to negotiate its terms. Adhesion contracts in the employment
context contain aspects of procedural unconscionability. (Serpa v. California Surety
Investigations, Inc. (2013) 215 Cal.App.4th 695, 704 (Serpa).) Nevertheless, an
agreement is not unenforceable simply because it is adhesive. (Ibid.; see also Lagatree,
supra, 74 Cal.App.4th 1105, 1123 [“the mandatory nature of an arbitration agreement
does not, by itself, render the agreement unenforceable”].)
       The ADR agreement provides that discovery and motion practice are to be
conducted in accordance with the Federal Rules of Civil Procedure (FRCP). Garrido
contends that Air Liquide’s failure to provide him with a copy of the FRCP was
procedurally unconscionable. Failure to attach a copy of arbitration rules can support a
finding of procedural unconscionability when such a failure would result in surprise.
(Lane, supra, 224 Cal.App.4th 676, 690.) When the applicable rules are commonplace
and easily obtainable through the Internet, however—as the FRCP are—a failure to
provide a copy does not in itself constitute procedural unconscionability. (Lane, at p.
691-692; see also Bigler v. Harker School (2013) 213 Cal.App.4th 727, 737 [absence of
rules “is of minor significance”].)
       Garrido also argues that the ADR agreement is concealed and inconspicuous. In
Samaniego v. Empire Today, LLC (2012) 205 Cal.App.4th 1138, 1146, the arbitration
agreement was made up of “11 pages of densely worded, single-spaced text presented in

                                             9
small typeface,” was one of 37 sections of a larger document, and did not contain an
individual heading. The court found that the agreement, written in English and presented
to employees who could not read English, was procedurally unconscionable. (Id. at pp.
1145-1146.) In Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 89 (Gutierrez), an
arbitration clause was “particularly inconspicuous,” printed in eight-point font on the
opposite side of a lease agreement. In contrast, the ADR agreement here is set off as an
individual document, it has its own signature page, it is clearly labeled “Alternative
Dispute Resolution,” it is not densely formatted, and it is printed in reasonably large-
sized text. In addition, there is no evidence that Garrido cannot read English. Unlike the
agreements at issue in the cases relied on by Garrido, the ADR agreement here is not
concealed or inconspicuous.
       Garrido’s remaining argument, that the ADR agreement conceals its nature by not
adequately disclosing the requirement of binding arbitration, is also untenable. The
agreement’s title, “Alternative Dispute Resolution,” is accurate, as the agreement
provides for an initial informal dispute resolution process, as well as binding arbitration,
if necessary. The agreement discusses binding arbitration at length, and arbitration is the
subject of numerous distinct, individual paragraphs within the agreement. In addition,
the front page of the ADR agreement states in bold capitalized letters: “NOTE: THIS
ADR AGREEMENT IS A WAIVER OF THE PARTIES’ RIGHTS TO A CIVIL
COURT ACTION.” This is not an example of a cryptic arbitration requirement buried in
a prolix printed form. A brief perusal of the ADR agreement makes obvious that the
parties waive their rights to court action and agree to binding arbitration when necessary.
       When, as here, any oppression or surprise rests almost entirely on the adhesive
nature of the agreement, “‘the degree of procedural unconscionability of an adhesion
agreement is low, and the agreement will be enforceable unless the degree of substantive
unconscionability is high.’” (Serpa, supra, 215 Cal.App.4th 695, 704, quoting Ajamian
v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 796.)




                                             10
       B. Substantive unconscionability
       “Substantive unconscionability pertains to the fairness of an agreement’s actual
terms and to assessments of whether they are overly harsh or one-sided. [Citations.] 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 223, 246.)
       In arguing that the ADR agreement is substantively unconscionable, Garrido
contends that the ADR agreement—when read in conjunction with other documents he
signed upon hiring—is unilateral and only applies to claims made by employees, not
claims made by Air Liquide. “[A]n arbitration 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 arising out of the same transaction or occurrence or series of
transactions or occurrences.” (Armendariz v. Foundation Health Psychcare Services, Inc.
(2000) 24 Cal.4th 83, 120 (Armendariz).) The terms of the ADR agreement itself are
mutual. The agreement explicitly states: “All disputes arising out of or relating to the
interpretation and application of this ADR Agreement or the employee’s employment
with Air Liquide or the termination of employment, including for example and without
limitation, any claims for unfair competition, theft of trade secrets, wrongful termination,
. . . or retaliation, shall be resolved through ADR, including binding arbitration if
necessary.” Conceding that the ADR agreement requires both parties to arbitrate their
claims, Garrido argues that its mutuality is contradicted by a separate confidentiality
agreement. Nothing in the confidentiality agreement, however, provides that Air Liquide
may bring claims against employees in court instead of through arbitration. Nor does
another document signed by Garrido relating to software piracy. In brief, if Air Liquide
were to bring a claim against Garrido, the ADR agreement would govern.
       Garrido also contends that the ADR agreement shortens the statute of limitations
applicable to claims by employees, a condition that, if true, can result in a finding of
substantive unconscionability. (Martinez v. Master Protection Corp. (2004) 118
Cal.App.4th 107, 117.) The ADR agreement, though, does no such thing. Instead, it

                                              11
allows an employee to present a written notice of dispute “within 180 days or the
applicable statute of limitations period (whichever is greater).” This clause would never
result in a shorter statute of limitations period. Garrido points out that a post-notice
procedure in the ADR agreement requires the noncomplaining party to respond within
20 business days to the notice of dispute, and that the complaining party then must reply
by sending a “second notice” within five business days. But, by the time this second
notice is due, the alternative dispute resolution process has already begun and so a failure
to reply within five days would not impact the statute of limitations. Further, the ADR
agreement provides for no penalty for a tardy second notice. Thus, this arbitration
procedure does not affect the statute of limitations.
       Garrido further argues that the ADR agreement contains excessive fee provisions.
“[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.” (Armendariz, supra, 24 Cal.4th 83, 110-111.) The
ADR agreement meets this standard. Air Liquide is to pay for fees and expenses of the
arbitrator, except that, in an employee-initiated arbitration, the employee must
“contribute a sum equal to the then-current filing fee in the applicable State or Federal
Court for a complaint or first appearance, whichever is lower, toward the arbitrator’s
fee.” This “contribution” to the arbitrator, offsetting some of the costs of arbitration, is
similar to the expense an employee would pay to bring a court action, and it is worded to
require an employee to pay no more than he or she would in court.3 Garrido also takes


3      The two cases cited by Garrido pertaining to improper fee provisions, Gutierrez
and Ingle v. Circuit City Stores, Inc. (9th Cir. 2003) 328 F.3d 1165, 1177, are
distinguishable. In Gutierrez, the administrative fee to initiate an arbitration was a
“prohibitively high” $8,000, much greater than the amount that would be required in
court. (114 Cal.App.4th at pp. 90-91.) In Ingle, the employee was required to pay a fee
directly to her employer. The court found that a “true filing fee” could be appropriate,
but requiring employees to pay a fee to the very entity against which they sought redress
could deter employees from initiating complaints. (328 F.3d at pp. 1177.)

                                              12
issue with the ADR agreement’s requirement that the initial notice of dispute be delivered
by hand or sent via facsimile or overnight delivery to Air Liquide. Again, this
requirement contemplates no greater cost (and may be significantly cheaper) than
equivalent expenses in a court action, where a process server is usually employed to
effect service.
       Garrido next characterizes the ADR agreement as “litigator friendly” because it
allows both parties to bring motions as allowed by the FRCP. Garrido’s characterization
is incorrect. It should go without saying that a plaintiff can benefit from the ability to file
a motion just as a defendant can. And Garrido would certainly not avoid motion practice
by bringing his action in court rather than through arbitration.
       Finally, Garrido argues that we should consider the ADR agreement’s class waiver
provision as a factor in assessing substantive unconscionability. He contends that, under
Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109 (Sonic II), a class action
waiver cannot constitute the entire basis for finding an agreement unconscionable, but the
court is required to consider the effects of a class action waiver in conjunction with other
factors in determining whether an arbitration agreement is unconscionable. He further
asserts that Chavarria v. Ralphs Grocery Co. (9th Cir. 2013) 733 F.3d 916 (Chavarria)
held an arbitration agreement to be unconscionable because, among other issues, it
contained a class action waiver.
       Contrary to Garrido’s analysis, neither Sonic II nor Chavarria relied on a class
waiver to find an arbitration agreement unconscionable. In Sonic II, the emphasis was on
the efficiencies provided by the “Berman” statutes (Lab. Code, §§ 98-98.8), which allow
a labor commissioner to resolve wage claims in a speedy and informal manner. (57
Cal.4th at pp. 1128-1129.) Our Supreme Court held: “The fact that the FAA preempts
Sonic I’s [Sonic-Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659] rule requiring
arbitration of wage disputes to be preceded by a Berman hearing does not mean that a
court applying the unconscionability analysis may not consider the value of benefits
provided by the Berman statutes, which go well beyond the hearing itself.” (Sonic II,
supra, 57 Cal.4th 1109, 1149.) In Chavarria, the United States Court of Appeals for the

                                              13
Ninth Circuit found an arbitration policy unconscionable because of excessive
administrative and filing costs imposed on employees, not because of a class action
waiver. (733 F.3d at pp. 926-927.) The Chavarria court expressly noted that the United
States Supreme Court, in American Express Corp. v. Italian Colors Restaurant (2013) __
U.S. __ [133 S.Ct. 2304], held that—although a class action waiver could result in higher
costs for individual litigants—the waiver did not prevent plaintiffs from vindicating
statutory rights because “‘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.’”
(Chavarria, supra, 733 F.3d at pp. 926-927, citing Italian Colors, 133 S.Ct. at pp. 2310-
2311.)
         It is possible that, under appropriate circumstances, the effects of a class action
waiver could still be properly considered when assessing the potential unconscionability
of an arbitration agreement under the CAA.4 This is not an issue we need decide here,
however. The ADR agreement lacks any traditional traits of substantive
unconscionability and presents only a minor level of procedural unconscionability. A
finding of unconscionability, therefore, is unwarranted.
                                        DISPOSITION
         The order denying Air Liquide’s motion to compel individual arbitration is
reversed. The parties shall bear their own costs on appeal.
         NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                             BOREN, P.J.
We concur:


         ASHMANN-GERST, J.                   HOFFSTADT, J.



4      Garrido’s respondent’s brief offers no analysis of whether or when a class waiver
could be considered under the CAA when analyzing unconscionability.


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