                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 17 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JACQUELINE MCFADDIN, individually                No.   15-55886
and on behalf of all others similarly
situated,                                        D.C. No.
                                                 5:14-cv-02369-VAP-SP
              Plaintiff-Appellee,

 v.                                              MEMORANDUM*

E.A. RENFROE & COMPANY, INC., a
Georgia corporation,

              Defendant-Appellant.



JACQUELINE MCFADDIN,                             No.   15-56404

              Plaintiff-Appellee,                D.C. No.
                                                 5:15-cv-01044-VAP-SP
 v.

E.A. RENFROE & COMPANY, INC., a
Georgia corporation,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                    Virginia A. Phillips, Chief Judge, Presiding

                       Argued and Submitted August 8, 2017
                               Pasadena, California

Before: REINHARDT, KOZINSKI, and CHRISTEN, Circuit Judges.


      California law governs the determination of whether the parties’ arbitration

agreement is unconscionable. Under California law, “the strong preference is to

sever unless the agreement is permeated by unconscionability.” Ajamian v.

CantorCO2e, L.P., 203 Cal. App. 4th 771, 802 (2012) (internal quotation marks

omitted); see Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1272 (9th Cir. 2017).

We agree with the district court that the choice of forum provision, the prevailing

party provision, and the cost provision are unconscionable. Renfroe stipulated it

would not enforce the choice of forum provision, and the prevailing party and cost

provisions are severable. See Fittante v. Palm Springs Motors, Inc., 105 Cal. App.

4th 708, 727 (2003). Hence, we vacate its ruling that the entirety of the arbitration

agreement is unenforceable.

      The district court did not address whether the arbitration agreement’s waiver

of class action claims is enforceable and applies to McFaddin’s California’s Private

Attorneys General Act claim. The district court shall address this issue before

reconsidering whether the agreement remains enforceable.


                                          2
Appellant’s motion for judicial notice (dkt. 55) is denied.

VACATED and REMANDED.




                                    3
