Leos v. Darden Restaurants

 

 

 

 

 

 

 

 

 

 

 

Filed 6/4/13  Leos v. Darden Restaurants CA2/1

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
ONE

 

 
>

ALEXIS LEOS et al.,               Plaintiffs and Respondents,               v.   DARDEN RESTAURANTS, INC.,               Defendant and Appellant.

B241630         (Los Angeles County       Super. Ct. No. BC473673)

 

 

            APPEAL from
an order of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Daniel J. Buckley, Judge. 
Reversed with directions.

            Ogletree,
Deakins, Nash, Smoak & Stewart, Beth A. Gunn and Jennifer L. Katz
for Defendant and Appellant.

            Kesluk &
Silverstein, Douglas N. Silverstein, Lauren J. Morrison; The Rubin
Law Corporation and Steven M. Rubin for Plaintiffs and Respondents.

 

 

__________________________________________

 

            Plaintiffs filed this action against their former
employer, alleging causes of action arising out of the termination of their
employment.  The employer filed a motion
to compel arbitration pursuant to an arbitration
provision contained in a document entitled, “Dispute Resolution Process”
(DRP).  When plaintiffs were hired, they
signed an acknowledgement form stating they agreed to submit disputes to
arbitration.  They opposed the motion to
compel arbitration on the ground that the arbitration provision in the DRP was
unconscionable.  The trial court ruled in
plaintiffs’ favor and denied the motion. 
Defendant appealed.

            We conclude
the trial court erred.  Although the
arbitration agreement is procedurally unconscionable, none of its provisions is
substantively unconscionable.  We
therefore reverse the order denying the motion to compel arbitration.

>I

>BACKGROUND

            The facts
and allegations in this appeal are taken from the complaint and the
declarations and exhibits submitted in connection with the motion to compel
arbitration.

A.        Complaint

            On
November 17, 2011, plaintiffs Alexis Leos and Jennifer Stucker
(plaintiffs) filed this action against their former employer, Darden
Restaurants, Inc. (Darden), alleging causes of action under the Fair Employment
and Housing Act (FEHA) (Gov. Code, §§ 12900–12996) for href="http://www.fearnotlaw.com/">sexual harassment, retaliation, failure to
prevent harassment, and failure to investigate harassment.  Plaintiffs asserted common law causes of
action for constructive discharge in violation of public policy and wrongful
termination in violation of public policy. 
They also sought declaratory relief to the effect that Darden’s
arbitration provision was unenforceable.

B.        Motion to Compel
Arbitration

            On
February 22, 2012, Darden filed a motion
to compel arbitration pursuant to the DRP, which consists of 14 pages.  Under the DRP, the parties must seek to
resolve a dispute through four steps. 
The first step is the “open door” approach, which obligates the employee
to bring a “workplace concern or dispute” to the attention of management for
possible resolution.  If the open door
approach does not resolve the workplace concern or dispute, an employee may
submit the matter to “peer review,” which requires that a dispute be presented
to a panel of three employees.  Each side
is allowed 30 minutes to present its position to the panel, after which the
panel issues a nonbinding decision.  If
either the employee or Darden is dissatisfied with the decision of the peer
review panel, the dissatisfied party may request mediation within 30 days after
the panel’s decision.  Otherwise, the
panel’s decision becomes final and binding. 
The third step, mediation, is conducted in accordance with the mediation
rules of the American Arbitration Association (AAA).  Darden will pay the costs and fees of the
mediation service and the mediator.  If
the mediator, the employee, or Darden determines that further attempts to
mediate the dispute are not “worthwhile,” either the employee or Darden “can
submit the matter to binding arbitration.” 
Darden “will pay the arbitrator’s fees and expenses, any costs for the
hearing facility, and any costs of the arbitration service.”  The arbitration “will be conducted according
to the Employment Dispute Resolution Rules of the [AAA].”

            Plaintiff
Stucker commenced employment with Darden in January 2010.  On January 27, 2010, she signed a
“Dispute Resolution Process Acknowledgement,” which stated:  “I have received and reviewed the Dispute Resolution
Process (DRP) booklet.  This booklet
contains the requirements, obligations, procedures and benefits of the
DRP.  I have read this information
and understand and agree to the terms and conditions of the DRP.  I agree as a condition of my employment, to
submit any eligible disputes I may have to the company’s DRP and to abide by
the provisions outlined in the DRP.  I
understand that this includes, for example, claims under state and federal laws
relating to harassment or discrimination, as well as other employment-related
claims as defined by the DRP.  Finally, I
understand that the company is equally bound to all of the provisions of the
DRP.”

            Plaintiff
Leos was hired on or about March 3, 2010, and on the same day, signed a
Dispute Resolution Process Acknowledgment that contained the same language as
the one signed by Stucker.

            Darden
filed its motion to compel arbitration pursuant to the California Arbitration
Act (Code Civ. Proc., §§ 1281.2, 1281.4). 
In its memorandum of points and authorities, Darden argued that the
arbitration provision in the DRP satisfied the requirements set forth in Armendariz
v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83 (>Armendariz).

            Plaintiffs
filed an opposition, asserting the arbitration provision was
unconscionable.  In their supporting
declarations, plaintiffs stated that they signed the DRP acknowledgement “as a
condition of my employment”; they had “no choice but to sign [the
acknowledgement]” to obtain employment; they were told they had to sign the
acknowledgement “whether I wanted to or not”; and they were “not able to
negotiate the terms of the [DRP].”href="#_ftn1"
name="_ftnref1" title="">[1]

            The motion
to compel arbitration was heard on April 11, 2012.  Before the hearing, the trial court had
prepared a tentative ruling denying the motion on the ground that the
arbitration provision was unconscionable. 
At the conclusion of the hearing, the trial court adopted the tentative
ruling as its order denying the motion.

            Darden
filed an appeal from the order.  (See
Code Civ. Proc., § 1294,
subd. (a).)

II>

DISCUSSION

            name="sp_999_6">name=B12026556688>“‘“Whether
an arbitration provision is unconscionable is ultimately a question of law.”’
. . . ‘On appeal, when the extrinsic evidence is undisputed, as it is
here, we review the contract de novo to determine unconscionability.’”  (Suh v. Superior Court (2010)
181 Cal.App.4th 1504, 1511–1512, citations omitted; accord, Mercuro v.
Superior Court (2002) 96 Cal.App.4th 167, 174 (Mercuro).)

            As a
preliminary matter, the parties disagree as to whether the href="http://www.fearnotlaw.com/">arbitration provision is governed by the
Federal Arbitration Act (FAA) (9 U.S.C. §§ 1–16) or the California
Arbitration Act (CAA) (Code Civ. Proc., §§ 1280–1294.2).

            The FAA
applies to a contract “evidencing a transaction involving commerce.” 
(9 U.S.C. § 2, italics added.) 
As explained in Hedges v. Carrigan
(2004) 117 Cal.App.4th 578, the United States Supreme Court has
“‘interpreted the term “involving commerce” in the [FAA] as the functional
equivalent of the more familiar term “affecting commerce”—words of art that
ordinarily signal the broadest permissible exercise of Congress’ Commerce
Clause power. . . . Because the statute provides for “the
enforcement of arbitration agreements within the full reach of the Commerce Clause,”
. . . it is perfectly clear that the [FAA] name="citeas((Cite_as:_117_Cal.App.4th_578,_*5">encompasses a wider range
of transactions than those actually “in commerce”—that is, “within the flow of name="SR;3695">interstate commerce,” . . .’
. . . ‘Congress’ Commerce Clause power “may be exercised in
individual cases without showing any specific effect upon interstate
commerce” if in the aggregate the economic activity in
question would represent “a general practice . . . subject to federal
control.” . . . Only that general practice need bear on name="SR;3817">interstate commerce in a substantial
way.’”  (Hedges v. Carrigan, at pp. 585–586, citations omitted.)

            In >Woolls
v. Superior Court (2005)
127 Cal.App.4th 197, the Court of Appeal addressed whether the FAA
governed a dispute between a homeowner renovating his single family home
and the contractor retained to perform the work.  The Court of Appeal stated:  “Because [the contractor] has not presented a
factual record to establish [that the parties’ agreement involves interstate
commerce], his reliance on Hedges v. Carrigan[, supra,] 117 Cal.App.4th
578 is misplaced.  Hedges
found an agreement to purchase a single family residence ‘was
a contract which
evidenced a transaction
“involving commerce” name="SR;7403">within the meaning
of [the FAA].’
. . . There, the evidence showed, ‘[name="SR;7423">t]he anticipated financing
involved the use
of a . . .
Federal Housing Administration
home loan which
is subject to
the name="SR;7442">jurisdiction of the
United States Department
of Housing and
Urban Development headquartered
in Washington, D.C.
 Further, name="SR;7458">the various copyrighted
forms used by
the parties and
their brokers name="SDU_439">name="SR;7469">could only be name="SR;7472">utilized by members
of the National
Association of Realtors.’
. . . [¶]  Unlike
the showing made in cases such as . . . Hedges, [the contractor] has not presented
any facts to show the instant transaction involved interstate
commerce.  This case is akin to Steele
v. Collagen Corp. (1997) 54 Cal.App.4th 1474, 1490, wherein the party
asserting [the application of the FAA] ‘made no attempt to establish its
actions’ fell within the ambit of federal law. 
We conclude [the contractor] failed to meet his burden of establishing
the FAA [applies] . . . .” 
(Woolls v. Superior Court, at pp. 213–214, citations omitted; see Hoover v. American Income Life Ins. Co. (2012) 206 Cal.App.4th
1193, 1207 [party seeking to compel arbitration has burden of proving that
underlying agreement involves interstate commerce]; Shepard v. Edward Mackay
Enterprises, Inc. (2007) 148 Cal.App.4th 1092, 1099–1101 [discussing
whether FAA applies in context of real estate transactions].)

            In the
present case, the DRP recited that it “is governed by the Federal Arbitration
Act or whatever state law is required to
authorize and/or enforce the arbitration.” 
(Italics added.)  Without
evidentiary support, the DRP stated that it “is used throughout the United States.”  Although Darden contends in its opening brief
that it is “doing business in all 50 states and around the world, in the
operation of a restaurant—which involved numerous interstate transactions as
part of [plaintiffs’] day-to-day job duties,” Darden’s citations to the record
do not support that contention.  Further,
Darden’s motion to compel arbitration was brought pursuant to the CAA.  Because the DRP does not unequivocally state
that it is governed by the FAA, and Darden has not offered any evidence that
plaintiffs’ employment or any relevant transaction involved interstate
commerce, we conclude that the CAA governs this case.  We note, however, that regardless of whether
the FAA or the CAA applies, we would reach the same conclusion:  The arbitration provision is not
substantively unconscionable and is therefore enforceable.

A.        Doctrine of
Unconscionability

            “In 1979,
the Legislature enacted Civil Code section 1670.5, which codified the
principle that a court can refuse to enforce an unconscionable provision in a
contract. . . . As section 1670.5, subdivision (a)
states:  ‘If the court as a matter of law
finds the contract or any clause of the contract to have been unconscionable at
the time it was made 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.’  Because
unconscionability is a reason for refusing to enforce contracts generally, it
is also a valid reason for refusing to enforce an arbitration agreement under
[the CAA], which . . . provides that arbitration agreements are
‘valid, enforceable and irrevocable, save upon such grounds as exist for the
revocation of any contract.’  The United
States Supreme Court, in interpreting the same language found in section 2
of the FAA (9 U.S.C. § 2), recognized that ‘generally applicable
contract defenses, such as fraud, duress, or unconscionability, may be
applied to invalidate arbitration agreements . . . .’
. . .

            name="sp_999_7">name=B32026556688>“. . .
‘[U]nconscionability has both a “procedural” and a “substantive” element,’ the
former focusing on ‘“oppression”’ or ‘“surprise”’ due to unequal bargaining
power, the latter on ‘“overly harsh”’ or ‘“one-sided”’ name="SDU_88">results. . . . ‘The prevailing view is that
[procedural and substantive unconscionability] must both be present in
order for a court to exercise its discretion to refuse to enforce a contract or
clause under the doctrine of unconscionability.’ . . . But they need
not be present in the same degree. . . . [T]he 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, citations omitted; accord, Bruni v. Didion (2008)
160 Cal.App.4th 1272, 1288–1289.) 
“The party resisting arbitration bears the burden of proving
unconscionability.”  (>Pinnacle Museum Tower Assn. v. Pinnacle
Market Development (US), LLC (2012) 55 Cal.4th 223, 247.)

            “‘The
procedural element of unconscionability focuses on two factors:  oppression and surprise. . . .
“‘Oppression’ arises from an inequality of bargaining power which results in no
real negotiation and ‘an absence of meaningful choice.’” . . .
“‘Surprise’ involves the extent to which the supposedly agreed-upon terms of
the bargain are hidden in a prolix printed form drafted by the party seeking to
enforce the disputed terms.” . . .’” 
(Bruni v. Didion,
supra, 160 Cal.App.4th at p. 1288.)

            “Of course,
simply because a provision within a contract of adhesion is not read or
understood by the nondrafting party does not justify a refusal to enforce
it.  The unbargained-for term may only be
denied enforcement if it is also substantively
unreasonable. . . . Substantive unconscionability focuses on
whether the provision is overly harsh or one-sided and is shown if the disputed
provision of the contract falls outside the ‘reasonable expectations’ of the
nondrafting party or is ‘unduly oppressive.’ . . . Where a party with
superior bargaining power has imposed name="citeas((Cite_as:_135_Cal.Rptr.3d_19,_*33">contractual terms on
another, courts must carefully assess claims that one or more of these
provisions are one-sided and unreasonable.” 
(Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 88,
citations omitted.)

            “Substantive
unconscionability pertains to the fairness of an agreement’s actual terms and
to assessments of whether they are overly harsh or one-sided. . . . 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
Museum Tower Assn. v. Pinnacle Market Development (US), LLC, >supra, 55 Cal.4th at p. 246,
citations omitted, italics added.)  Simply
put, the contract term must be either (1) overly harsh >or (2) so one-sided as to shock the
conscience.  (See id. at p. 248, citing 24 Hour Fitness, Inc. v.
Superior Court (1998)
66 Cal.App.4th 1199, 1213 [“substantive element . . .
traditionally involves contract terms that are so one-sided as to ‘shock the
conscience,’ or that impose harsh or
oppressive terms” (italics added)].)

B.        Procedural
Unconscionability

            Because
plaintiffs were required to sign the DRP acknowledgement as a condition of
employment, were unable to negotiate the terms of the DRP, and had no
meaningful choice in the matter, the DRP was oppressive and procedurally
unconscionable.  (See >Ajamian v. CantorCO2e, L.P. (2012)
203 Cal.App.4th 771, 796; Martinez
v. Master Protection Corp. (2004) 118 Cal.App.4th 107, 114.)  But the arbitration provision was not “‘“>hidden in a prolix printed form”’” (Bruni v. Didion, supra, 160 Cal.App.4th
at p. 1288, italics added) and therefore did not involve an element of
surprise.  On the contrary, the arbitration
provision was prominently featured as part of the DRP, and the DRP was a
stand-alone agreement that addressed only one subject:  the use of alternative dispute resolution in
lieu of a civil suit.

C.        Substantive
Unconscionability

            Plaintiffs
contend the arbitration provision is substantively unconscionable in five
respects.  We discuss them in turn.

            1.  Employer’s Right to Modify the DRP

            The DRP
states that it “may be updated from time to time as required by law.”  Plaintiffs contend this clause renders the
entire arbitration provision illusory and unenforceable or, in the alternative,
constitutes an unconscionable clause itself. 
We disagree with both contentions.

            As
plaintiffs correctly point out, “‘[A]n arbitration agreement allowing one party
the unfettered right to alter the
arbitration agreement’s existence or its scope is illusory,’” quoting >Dumais v. American Golf Corp. (10th Cir.
2002) 299 F.3d 1216, 1219.  (Italics
added.)  Plaintiffs also argue “[t]he
fact that Darden reserves the right to alter, amend, or modify the DRP at its
sole and absolute discretion at any time with or without notice creates no real
promise, and therefore, insufficient consideration to support an enforceable
agreement to arbitrate,” citing Floss v. Ryan’s Family Steak Houses, Inc.
(6th Cir. 2000) 211 F.3d 306, 315–316. 
And in Ingle v. Circuit City
Stores, Inc. (9th Cir. 2003) 328 F.3d 1165, the court of appeals
stated:  “By granting itself the sole
authority to amend or terminate the arbitration agreement, [the employer]
proscribes an employee’s ability to consider and negotiate the terms of her
contract.  Compounded by the fact that
this contract is adhesive in the first instance, this provision embeds its
adhesiveness by allowing only [the employer] to modify or terminate the terms
of the agreement.  Therefore, we conclude that the provision
affording [the employer] the unilateral power to terminate or modify the
contract is substantively unconscionable.” 
(Id. at p. 1179, fn.
omitted.)

            But under
California law, an employer’s unilateral right to modify an arbitration
provision is not unfettered; it is subject to the limitations imposed by the
covenant of good faith and fair dealing. 
In 24 Hour Fitness, Inc. v.
Superior Court, supra,> 66 Cal.App.4th 1199 (>24 Hour Fitness), a female employee
of 24 Hour Fitness, Inc., doing business as 24 Hour Nautilus
(Nautilus), filed suit against her employer and several male employees,
alleging sexual harassment.  Nautilus and
the individual defendants filed motions for summary judgment and summary
adjudication, seeking to establish that the employee had to arbitrate her claim
as mandated by the “Arbitration of Disputes” section of Nautilus’s “Personnel
Handbook.”  A separate document entitled,
“Employment Arbitration Procedure Manual,” was incorporated by reference into
the Personnel Handbook.

            The
employee opposed the motions on the ground that the Personnel Handbook was
illusory because Nautilus could amend it at anytime.  The handbook contained a provision
stating:  “‘I acknowledge that Nautilus
reserves the right to change any provision in this Handbook at any time for any
reason without advance notice.  Though
Nautilus can make changes, I understand that nothing in this name="sp_4041_1214">name="citeas((Cite_as:_66_Cal.App.4th_1199,_*1">Handbook can be modified or
deleted, nor anything added, in any way by oral statement or practice.  Only the President of Nautilus can change
this Handbook and the change must be in writing.  If Nautilus makes any material changes, it will
give me a copy of them.’”  (>24 Hour Fitness, >supra, 66 Cal.App.4th at pp. 1213–1214.)  When hired, the employee had signed an
acknowledgment form, reciting that she had received and read the handbook and
had also agreed to arbitrate all claims as provided in the arbitration
procedure manual.  (Id. at p. 1205.)  The
trial court denied the defendants’ motions. 
All parties sought writ relief.

            In
reversing the trial court as to all but one defendant, the Court of Appeal
concluded that the modification provision was not illusory, saying in
part:  “‘“[W]here the contract specifies
performance the fact that one party reserves the power to vary it is not fatal
if the exercise of the power is subject to prescribed or implied limitations
such as the duty to exercise it in good faith and in accordance with fair
dealings.”’ . . . Nautilus’s discretionary power to modify the terms
of the personnel handbook [by written] notice indisputably carries with it the
duty to exercise that right fairly and in good faith. . . . So
construed, the modification provision does not render the contract illusory.”  (24 Hour
Fitness, supra,
66 Cal.App.4th at p. 1214, citations omitted; accord, >Martinez v. Scott Specialty Gases, Inc.
(2000) 83 Cal.App.4th 1236, 1246.)

            In >Peleg v. Neiman Marcus Group, Inc.
(2012) 204 Cal.App.4th 1425, we held that, under California law, an
arbitration agreement is illusory and thus unenforceable if an employer’s
unilateral modifications apply where an employee’s claims have already accrued
or are known to the employer.  We also
discussed the application of the covenant of good faith and fair dealing,
stating:  “A unilateral modification
provision that is silent as to whether contract changes apply to claims,
accrued or known, is impliedly restricted by the covenant [of good faith and
fair dealing] so that changes do not apply to such claims.  Under this analysis, the arbitrationname="sp_7047_68"> name="citeas((Cite_as:_204_Cal.App.4th_1425,_*">agreement in 24 Hour
Fitness is not illusory.  If,
however, a modification provision expressly addresses whether contract changes
apply to claims that have accrued or are known to the employer, the covenant cannot
create implied terms that contradict the express
language. . . .  An
arbitration agreement that expressly exempts all claims, accrued or
known, from contract changes is valid and enforceable without resort to the
covenant.  If, on the other hand, an arbitration
agreement expressly applies a contract change to such claims, the covenant
cannot vary the plain language, and the agreement is illusory.”  (Id.
at p. 1465.)

            The
modification clause in this case does not grant Darden an unfettered right to change the terms of the arbitration
provision.  Rather, Darden reserves the
right to modify the arbitration provision “as required by law.”  In our view, the modification clause is neither
overly harsh or so one-sided as to shock the conscience.  We fail to understand how a clause permitting
a modification as required by law can
itself be unlawful.  If a particular
modification is required by law, then the change is necessary to avoid the very
result that plaintiffs seek here—the invalidation of the arbitration
provision.  An employer should not be
bound in perpetuity by the terms of an existing arbitration provision if a
judicial decision or statute renders the provision invalid in some respect.

            Plaintiffs
assert that the modification clause permits Darden to require that only
employee claims be submitted to arbitration, exempting its own claims from the
arbitration process.  But that type of
modification would not be required by law.  On the contrary, it would be unlawful.  (See, e.g., Armendariz, supra, 24 Cal.4th at
pp. 115–118.)  It would also be
inconsistent with the covenant of good faith and fair dealing.  Thus, to be lawful, an arbitration provision
must require that both sides submit their respective disputes to
arbitration.  (Ibid.)  Here, the DRP states
that it is “the sole means for resolving covered employment-related disputes,
instead of court actions.  >Disputes eligible for DRP must be resolved only through DRP, with the final
step being binding arbitration heard by an arbitrator.  This means DRP-eligible disputes will NOT BE RESOLVED BY A JUDGE OR JURY.  Neither the Company nor the Employee may
bring DRP-eligible disputes to
court.  The Company and the Employee
waive all rights to bring a civil court action for these disputes.”  (Italics added.)

            The
DRP exempts certain types of claims from arbitration:  claims for workers’ compensation or
unemployment insurance benefits; claims “that by law cannot be subjected to
mandatory arbitration”; and claims regarding wage scales, employee benefits,
work rules, food quality, service standards, or company policies and procedures
unless the dispute is “brought pursuant to a specific federal or state statute,
or other applicable legal standard.”  In
light of these exemptions, the DRP uses the term “DRP-eligible disputes” to
refer to claims not falling within one of the exemptions.

            In
sum, the clause granting Darden the right to modify the arbitration provision
in accordance with the law does not render arbitration illusory; employees and
Darden are both required to submit DRP-eligible claims to arbitration.  Nor is the modification clause substantively
unconscionable.

            2.  Limitations
on Discovery and the Arbitration Hearing

            Plaintiffs
challenge three clauses in the DRP’s arbitration provision that govern discovery
and the arbitration hearing.  First,
“[t]he arbitrator has the authority to authorize reasonably needed discovery >in addition to that provided by the
American Arbitration Association Rules.” 
(Italics added.)href="#_ftn2"
name="_ftnref2" title="">[2]  Second, “[t]he arbitration hearing will start
no later than ninety (90) days following the date of the selection of the
arbitrator.  However, the selected
arbitrator may extend the hearing date if good cause is shown by either party.”  And third, “[t]he arbitrator has the
authority to set the duration of the hearing after conferring with both
parties.  Typically, the arbitration
hearing shall last no longer than two (2) days.  Complex cases may require additional time.  The Employee and the Company representative
will each have one (1) day to present their side of the dispute.  The arbitrator may, for good cause, extend
the duration of the hearing and adjust the timing of the presentations.  Also, the arbitrator may extend the hearing
and any related discovery to whatever extent is necessary name="SDU_5">to meet any applicable legal requirements.”

            As a
federal district court has explained in deciding the validity of these same
clauses:  “Plaintiff contends that the
provisions concerning discovery and the duration of the hearing hinder his
ability to vindicate his statutory rights and therefore fail to satisfy Armendariz.  Specifically, Plaintiff argues, the
arbitration agreement does not allow for adequate time for discovery, because
it provides that the arbitration hearing start no later than 90 days following the
selection of the arbitrator.  He also
argues that it does not allow adequate time for the duration of the hearing,
which is set at two days.  Both of these
time limitations are subject to change by the arbitrator, for good
cause. . . . These limitations, according to Plaintiff, present
unconscionable barriers to the vindication of his rights because as the
plaintiff, he will require more time for discovery and more time to present his
case at arbitration compared to the [employer]. 
Moreover, the provision allowing the arbitrator to adjust the schedule
for good cause is inadequate, Plaintiff contends, because he would have to file
an ‘expensive’ motion for such relief from the arbitrator (presumably,
attorneys’ fees).

            name="citeas((Cite_as:_2008_WL_4949043,_*6_(C.">“Plaintiff’s arguments are
unpersuasive.  One of the benefits of
arbitration is that it generally allows parties to reach a resolution on the
merits more quickly than is possible in court. 
Thus, California courts do not by any means require that an arbitration
agreement permit ‘unfettered discovery.’ 
Mercuro[, supra,]
96 Cal.App.4th [at] 184.  Parties
may certainly ‘agree to something less than the full panoply of
discovery provided in [a civil action].’ 
Armendariz,
24 Cal.4th at 105-06.[href="#_ftn3" name="_ftnref3"
title="">[3]]

            “Courts
have upheld more stringent limitations on discovery.  In a case that Plaintiff himself cites for a
different point, the arbitration agreement limited the parties to three
depositions and an aggregate of 30 discovery requests of any kind, with
additional discovery requests to be granted only upon a showing of good
cause.  Mercuro, [supra,] 96 Cal.App.4th at 182. 
Yet the court rejected plaintiff’s argument that these limitations were
unconscionable . . . .’  Id.
at 183.

            “Something
more than Plaintiff’s speculative assertions about his ability to vindicate his
rights is needed to invalidate agreed-to discovery rules.  Mercuro and other cases make clear
that whether limitations on discovery violate the principles in Armendariz
depends on the complexity of the claims, the nature of proof required, the
precise discovery that the arbitration agreement does permit, and the burdens
that the agreement imposes on the party who seeks to exceed the limits.  See Ontiveros v. DHL Exp. (USA), Inc. [(2008)] 164 Cal.App.4th 494,
512 (invalidating provision limiting depositions to one individual and any
expert witness designated by another party because plaintiff would need to take
at least 15 to 20 depositions and the arbitration agreement’s ‘>substantial need’ standard imposed too
high a burden on plaintiff); Fitz v. NCR Corp. [(2004)] 118 Cal.App.4th 702, 717-18 (invalidating
limitation on number of depositions because plaintiff demonstrated that a
standard of ‘compelling need’
unfairly required parties to demonstrate that a fair hearing would be
‘impossible’ without additional discovery).

            “Plaintiff
has cited no authority finding presumptive time limits on discovery and the
duration of the hearing, such as the limits in the DRP, to be unconscionable
. . . . Nor has he shown how the discovery provision in the DRP would
necessarily prevent him from vindicating his statutory rights in his particular
case.  Therefore, the Court finds that
the minimum requirement of adequate discovery has been met.”  (Rutter
v. Darden Restaurants, Inc. (C.D.Cal., Nov. 18, 2008,
No. CV 08-6106 AHM) 2008 WL 4949043, pp. *5–*6, citation
omitted, some italics added.)

            “[A]rbitration
is meant to be a streamlined procedure. 
Limitations on discovery . . . is one of the ways streamlining
is achieved.  In Armendariz, the [Supreme Court] stated that the
parties were entitled to discovery sufficient to vindicate their
claims. . . . The court also acknowledged that discovery
limitations are an integral and permissible part of the arbitration
process. . . . Armendariz specifically recognized that parties
may agree to something less than the full panoply of discovery permitted [in
civil actions].”  (Dotson v. Amgen, Inc. (2010) 181 Cal.App.4th 975, 983,
citations omitted.)

            “[I]n Roman [v. Superior Court (2009) 172
Cal.App.4th 1462], our colleagues in Division Seven pointed out that the
rules of the American Arbitration Association (AAA) give the arbitrator
authority to limit discovery and ‘to order such discovery, by way of
deposition, interrogatory, document production, or otherwise, as the arbitrator
considers necessary to a full and fair exploration of the issues in dispute,
consistent with the expedited nature of . . . arbitration.’
. . . The Court of Appeal rejected the
argument that the [AAA discovery] name="citeas((Cite_as:_181_Cal.App.4th_975,_*9">provision was
unconscionable because it unfairly delegates to the arbitrator the absolute
discretion to deny depositions, contrary to the rules of civil discovery
. . . .  The Court [of
Appeal] said:  ‘In Armendariz, . . . the Supreme Court
rejected an employee’s similar claim that a purportedly inadequate provision
for discovery in an arbitration agreement was a proper ground for denying
arbitration of their FEHA claims. 
Although the [Supreme] Court observed “some discovery is often necessary
for vindicating a FEHA claim” . . . , it held “whether or not
the employees in this case are entitled to the full range of discovery provided
in [civil actions], they are at least entitled to discovery sufficient to
adequately arbitrate their statutory claim, including access to essential
documents and witnesses, as determined by the arbitrator(s)
. . . .” . . .’ . . . . The [Court of
Appeal] concluded:  ‘There appears to be
no meaningful difference between the scope of discovery approved in Armendariz
and that authorized by the AAA employment dispute rules . . . .’”  (Dotson
v. Amgen, Inc., supra,
181 Cal.App.4th at pp. 983–984, citations & fn.
omitted.)  As noted, the AAA employment
dispute rules apply under the DRP, and the arbitrator is authorized to permit
discovery in addition to what the AAA
rules provide.

            Here,
plaintiffs “assume[] that the arbitrator would not be fair in determining
whether additional [discovery was] needed. . . . Indeed, it is
quite the opposite.  We assume that the
arbitrator will operate in a reasonable manner in conformity with the law.”  (Dotson
v. Amgen, Inc., supra,
181 Cal.App.4th at p. 984.) 
Unlike the discovery limitations in Ontiveros v. DHL Exp. (USA), Inc., supra, 164 Cal.App.4th
494, and Fitz v. NCR Corp., supra,
118 Cal.App.4th 702 (Fitz),
“the discovery provision in this case does not require a showing of
‘substantial’ or ‘compelling’ need . . . to grant further
discovery.”  (Dotson, at p. 984.) 
“[T]he agreement allows for ‘[e]ither party [to] apply to the arbitrator
for further discovery’ upon a showing of [good] cause. . . .
Thus, the discovery provision is not substantively unconscionable.”  (Abeyrama
v. J.P. Morgan Chase Bank (C.D.Cal., June 22, 2012,
No. CV12-00445 DMG) 2012 WL 2393063, p. *4.)

            In short,
because the DRP’s limitations on discovery, the timing of the hearing, and the
length of the hearing are subject to change upon the arbitrator’s determination
of good cause, the limitations do not render the arbitration provision
unconscionable.

            3.  Cost of Reporter’s Transcript

            Under the
DRP, “the Employee may choose to arrange for a court reporter at [his or her]
own cost.”  Plaintiffs contend this
clause unfairly burdens them with arbitration expenses.  We disagree. 
Under Armendariz, an employer
in an FEHA action must “pay all types of costs that are unique to arbitration.”  (>Armendariz, supra, 24 Cal.4th at p. 113, italics added.)  The cost of a reporter’s transcript is not
that type of expense.  Even if
plaintiffs’ causes of action were adjudicated in a judicial forum, plaintiffs
would have to pay for a reporter’s transcript; the employer would not be
required to obtain a reporter’s transcript on the employees’ behalf.  As provided by the California Rules of Court,
“If the services of an official
court name="SR;716">reporter name="SR;717">are name="SR;718">not name="SR;719">available for
a hearing or trial in a civil case, a
party may arrange for the presence of a certified shorthand reporter to serve
as an official pro tempore reporter.  It
is that party’s responsibility to pay the
reporter’s fee for attendance at the proceedings, but the expense may be
recoverable as part of the costs, as provided by law.”  (Cal. Rules of Court, rule 2.956(c),
italics added.)

            Because an
employee would have to pay for a reporter’s transcript in a civil action,
Darden may impose the same cost requirement in an arbitration proceeding without
running afoul of Armendariz or the
doctrine of unconscionability.

            4.  Availability of Provisional Relief

            The
arbitration provision in the DRP states: 
“The arbitrator has the same authority as a court of law to grant
requested relief; this would include relief requested regarding temporary
restraints and preliminary injunctive remedies. 
However, this provision does not prevent either the Employee or the
Company from requesting available temporary or preliminary injunctive remedies
from an appropriate court, provided that the request does not remove the
dispute from final resolution by the arbitrator.  The request for temporary or preliminary
injunctive remedies does not waive the requesting party’s right to arbitrate
claims covered by the DRP.”  Plaintiffs
argue that, because of this language, the arbitration provision lacks mutuality
and is not bilateral.  In other words,
the arbitration provision exempts the causes of action that Darden would be
likely to bring.  We conclude otherwise.

            The CAA contains
a provision similar to the one in the DRP. 
Section 1281.8, subdivision (b) (section 1281.8(b)) of
the CAA provides:  “A party to an
arbitration agreement may file in the court
in the county in which an arbitration proceeding is pending, or if an arbitration
proceeding has not commenced, in any proper court,
an application for a provisional remedy
in connection with an arbitrable controversy, but only upon the ground that the
award to which the applicant may be entitled may be rendered ineffectual without
provisional relief.”  (Code Civ. Proc., § 1281.8,
subd. (b), italics added.)  The CAA
defines “provisional remedy” to include “[p]reliminary injunctions and
temporary restraining orders.”  (>Id., § 1281.8, subd. (a)(3).)  Section 1281.8(b) “‘was enacted
primarily to allow a party to an arbitration [or subject to an arbitration
agreement] to obtain provisional judicial remedies without waiving the right to
arbitrate, as some early cases had suggested.’” 
(Stirlen v. Supercuts, Inc.
(1997) 51 Cal.App.4th 1519, 1537 (Stirlen).)

            In >Stirlen, supra, 51 Cal.App.4th 1519, the
employer exempted from arbitration “‘[a]ny action initiated by the Company
seeking specific performance or injunctive or other equitable relief in
connection with any breach or violation of
[its intellectual property rights].’” 
(Stirlen, at p. 1528,
italics added; see Mercuro, >supra, 96 Cal.App.4th at pp. 177–178 [discussing >Stirlen].)  The arbitration agreement also limited the
parties’ remedies to “‘a money award not to exceed the amount of actual damages
for breach of contract’” and excluded “‘any other remedy at law or in equity,
including but not limited to other money damages, exemplary damages, specific
performance, and/or injunctive relief.’” 
(Stirlen, at p. 1529.)

            The Court
of Appeal concluded that the agreement’s lack of mutuality was unconscionable,
explaining:  “One of the most significant
discrepancies, of course, is the unilateral restriction on employee remedies
and the nature of the rights employees are deprived of in this manner.  While [the employer] is deprived of no common
law or statutory remedies that may be available to it under [the intellectual
property provisions] of the employment contract, remedies available to
employees in employment disputes are severely curtailed.  Not only are employees denied punitive
damages for tort claims, they are also denied relief for statutory claims
. . . . [The employer’s] arbitration clause not only deprives
employees of the exemplary damages and equitable relief available under [some]
federal statutes, but deprives them as well of the reasonable attorney fees,
including litigation expenses, and costs, that prevailing parties can obtain
under those statutes. . . . The only remedy left to
employees—actual damages for breach of contract—may bear no relation whatsoever
to the extent of the wrong and the magnitude of the injuries suffered at the
hands of the employer.  This would amount
to denial of the underlying cause of action, which would be preserved in name
only.”  (Stirlen, supra, 51 Cal.App.4th
at pp. 1539–1540.)

            The court
continued:  “The mandatory arbitration
requirement can only realistically be seen as applying primarily if not
exclusively to claims arising out of the termination of employment, which are
virtually certain to name="citeas((Cite_as:_51_Cal.App.4th_1519,_*1">be filed against, not by,
[the employer].  [The employer]
identifies no provision of the employment contract and no statute likely to
give rise to a claim [it] would be compelled to submit to arbitration.  The only ‘employment disputes’ likely to be
initiated by [the employer]—such as claims that an employee violated a non-competition agreement or divulged
confidential information—need not be arbitrated.  [¶] . . . [¶]  In short, the
arbitration clause provides the employer more rights and greater remedies than
would otherwise be available and concomitantly deprives employees of
significant rights and remedies they would normally enjoy.”  (Stirlen,
supra, 51 Cal.App.4th at
pp. 1540–1542, italics added.)

            In >Mercuro, supra, 96 Cal.App.4th 167, “[t]he arbitration agreement
specifically cover[ed] claims for breach of express or implied contracts or
covenants, tort claims, claims of discrimination based on race, sex, age or
disability, and claims for violation of any federal, state or other
governmental constitution, statute, ordinance, regulation or public name="sp_4041_176">name="citeas((Cite_as:_96_Cal.App.4th_167,_*17">policy.  Thus the agreement [required] arbitration of
the claims employees [were] most likely to bring against [the employer].  On the other hand, the agreement specifically
exclude[d] ‘claims for injunctive and/or other equitable relief >for intellectual property violations, unfair
competition and/or the use and/or unauthorized disclosure of trade secrets or
confidential information . . . .’  Thus the agreement exempt[ed] from
arbitration the claims [the employer was] most likely to bring against its
employees.”  (Id. at pp. 175–176, italics added.)  The Court of Appeal concluded that the lack
of mutuality rendered the arbitration agreement unconscionable.  (Id.
at p. 179; see Martinez v. Master
Protection Corp. (2004) 118 Cal.App.4th 107, 114–115 [arbitration
agreement lacked mutuality and was unconscionable because it exempted
employer’s claims for unfair competition and unauthorized disclosure of trade
secrets or confidential information].)

            In >Fitz, supra, 118 Cal.App.4th 702, an employer informed its employees about a new
arbitration policy by sending them a brochure. 
A letter accompanying the brochure stated that “the new policy would be
used to settle concerns over almost anything at work, ranging from disagreements
over assignments to perceived discriminatory treatment.”  (Id.
at p. 708.)  But the arbitration
policy “was not to be used ‘to resolve disputes over confidentiality/non-compete agreements or intellectual property rights.’”  (Id.
at p. 709, italics added.)  Relying
on Stirlen, supra, 51 Cal.App.4th at pages 1528 and 1537 (see >Fitz, at pp. 723–724), the Court of
Appeal in Ftiz concluded that the
lack of mutuality was unconscionable, saying: 
“An agreement may be unfairly one-sided if it compels arbitration of the
claims more likely to be brought by the weaker party but exempts from
arbitration the types of claims that are more likely to be brought by the
stronger party. . . . [¶] . . . [¶]  [The employer] asserts
that the [arbitration] policy is ‘completely bilateral’ because the policy does
not carve out particular types of claims where employees are name="sp_4041_725">name="citeas((Cite_as:_118_Cal.App.4th_702,_*7">required to arbitrate, but
the company is permitted to seek redress for the same claim in a judicial
forum. . . . [The employer] states that both the company and [an
employee] may submit disputes regarding noncompete agreements and intellectual
property rights to the courts.  Though
[the employer] cites cases where employees have filed actions against employers
over noncompete agreements and intellectual property claims, it is far more
often the case that employers, not employees, will file such
claims. . . .

            “The [arbitration] policy is
unfairly one-sided because it compels arbitration of the claims more likely to
be brought by [an employee], the weaker party, but exempts from arbitration the
types of claims that are more likely to be brought by [the employer], the
stronger party. . . .
[¶]  The [arbitration] policy fails to overcome the Armendariz
threshold, which states that arbitration agreements imposed in adhesive
contexts lack basic fairness if they require one party but not the other to
arbitrate all claims arising out of the same transaction or
occurrence. . . . For example, in a wrongful termination dispute
where the employee claims age discrimination and [the employer] argues the
employee was fired for divulging trade secrets to a competitor, the employee is
required to arbitrate her claim while [the employer] is permitted to [proceed
in a judicial forum].”  (>Fitz, supra, 118 Cal.App.4th at pp. 724–725, citation omitted.)

            We agree
with Stirlen, Mercuro, and Fitz but not
with the analysis of mutuality in Trivedi
v. Curexo Technology Corp. (2010) 189 Cal.App.4th 387 (Trivedi).  There, an
employer-employee arbitration agreement provided in part:  “‘[P]rovisional injunctive relief may, but
need not, be sought in a court of law while arbitration proceedings are
pending, and any provisional injunctive
relief granted by such court shall remain effective until the matter is
finally determined by the Arbitrator.’” 
(Trivedi, at
p. 396.)  The Court of Appeal
concluded that the language authorizing provisional injunctive relief was
coextensive with section 1281.8(b) of the CAA.  (Trivedi,
at pp. 396–397.)  Nevertheless, the
court found the clause unconscionable, reasoning that “allowing the parties
access to the courts only for injunctive relief favors [the employer], because
it is ‘more likely that . . . the employer[] would seek injunctive
relief.’  While the trial judge did not
cite authority supporting this conclusion, it is not a novel or unsupportable
proposition.”  (Id. at p. 397.)  The
Court of Appeal cited Mercuro and >Fitz as support for the trial court’s
conclusion.  (Ibid.)

            We decline
to follow Trivedi for three
reasons.  First, Mercuro and Fitz do not
suggest that an arbitration clause similar to section 1281.8(b) is
unconscionable.  Both of those cases
stand for the proposition that an arbitration agreement is unconscionable if it
exempts claims likely to be brought by an employer but requires arbitration of
claims likely to brought by an employee. 
Although the unconscionable provision in Mercuro authorized the parties to seek injunctive relief in a
judicial forum, it permitted that type of relief only for claims the employer
was likely to bring:  “‘intellectual
property violations, unfair competition and/or the use and/or unauthorized
disclosure of trade secrets or confidential information.’”  (Mercuro,
supra, 96 Cal.App.4th at
p. 176.)  Similarly, in >Fitz, the unconscionable agreement
exempted from arbitration the type of claims only an employer would bring:  “‘disputes over confidentiality/non-compete
agreements or intellectual property rights.’” 
(Fitz, supra, 118 Cal.App.4th at p. 709.)  Here, the arbitration provision does not
exempt from arbitration any claims that Darden is more likely to pursue, and
the provision allowing the parties to obtain provisional remedies in court is
not tied to any type of claim.

            Second, we
cannot say that Darden is more likely to seek injunctive relief than an
employee.  In the present case, for
example, the complaint alleges six causes of action.  Four of those causes of action are based on
the FEHA, which authorizes an employee to seek injunctive relief.  (See Gov. Code, § 12965, subd. (c)(3); Aguilar v. Avis Rent A Car
System, Inc. (1999)
21 Cal.4th 121, 131–132.)  Further, as Stirlen pointed out, the Age Discrimination in Employment Act of
1967 (29 U.S.C. §§ 621–634) expressly permits an employee
to seek “equitable relief” (id.,
§§ 626(c)(2), 633a(c)), and, under the public accommodation provisions of
the Americans with Disabilities Act of 1990 (42 U.S.C.
§§ 12101–12213), injunctive relief is available (id., § 12188(a)(2)). 
(See Stirlen, >supra, 51 Cal.App.4th at
p. 1540.)  In addition,
Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000e to
2000e‑4) also authorizes injunctive relief (id., § 2000e‑5(g)(1)).

            Third,
because the DRP is subject to the CAA, section 1281.8(b) would apply
regardless of the analogous provision in the DRP.  Put another way, an arbitration agreement
governed by the CAA permits a party to seek provisional remedies, such as a
preliminary injunction, in court even if the arbitration provision does not expressly
authorize the parties to seek such relief. 
This is so because, as noted, section 1281.8(b) is part of the
CAA.  We fail to see how the provisional
relief clause in the DRP is unconscionable given that section 1281.8(b)
would be read into the DRP in any event. 
We are aware of no authority for the proposition that a right conferred
by the CAA may be unconscionable.

            It follows that the DRP’s
provisional remedy language is neither overly harsh nor so one-sided as to
shock the conscience.

            >5. 
Prohibition of Class and Collective Actions

            The DRP provides:  “The arbitrator will have no right or
authority to hear or rule on any dispute brought by any person as a class
action, collective action or on behalf of any other person or entity
. . . . The arbitrator has no jurisdiction to certify any group
of current or former employees, or applicants for employment, as a class or
collective action in any arbitration proceeding.”

            Plaintiffs challenge this
prohibition on the ground that it conflicts with the National Labor Relations
Act (29 U.S.C. §§ 151–168) as interpreted in D.R. Horton
(2012) 357 NLRB No. 184.  We
reject plaintiffs’ argument for two reasons. 
First, they have not brought a class action or a collective action.  Rather, this is an action by two individuals
seeking relief for themselves only. 
Because the DRP’s prohibition of class and collective actions has no
effect on plaintiffs’ ability to pursue their claims as pleaded, the purported
unconscionability of that prohibition is irrelevant in this case.  Second, we agree with other Courts of Appeal
that D.R. Horton does not
invalidate class or collective action waivers in an arbitration agreement.  (See Truly
Nolen of America v. Superior Court (2012) 208 Cal.App.4th 487,
514–515; Nelsen v. Legacy Partners
Residential, Inc. (2012) 207 Cal.App.4th 1115, 1132–1134.)

            For the first time on appeal,
plaintiffs argue that the DRP’s prohibition of class and collective actions is
invalid under Gentry v. Superior Court
(2007) 42 Cal.4th 443.  This
argument fails for three reasons.  First,
as with plaintiffs’ contention based on D.R. Horton,
the question of whether Gentry
invalidates a class or collective action waiver is irrelevant in a case brought
on an individual basis.  Second, because
plaintiffs did not rely on Gentry in
the trial court, we decline to address whether Gentry was overruled by AT&T
Mobility LLC v. Concepcion (2011) 563 U.S. ___ [131 S.Ct.
1740].  (See Premier Medical
Management Systems, Inc. v. California Ins. Guarantee Assn. (2008)
163 Cal.App.4th 550, 564 [argument not raised in trial court is forfeited
on appeal]; Perez v. Grajales (2008) 169 Cal.App.4th 580, 591–592
[same].)  And third, plaintiffs have not
made the evidentiary showing required by Gentry
to invalidate a class or collective action waiver.  (See Gentry,
at pp. 457–463.)

            In sum, the DRP’s arbitration
provision is not substantively unconscionable, and the trial court therefore
erred in denying the motion to compel arbitration.  Any request for appellate
attorney fees should be name="sp_4041_1544">presented in the first instance
to the trial name="citeas((Cite_as:_196_Cal.App.4th_1533,_*">court on remand.  (See Cal. Rules of Court,
rule 3.1702(a), (c).)

>III

>DISPOSITION

            The order is reversed, and, on remand, the trial court
shall enter a new order granting the motion to compel arbitration.  Appellant is entitled to costs on appeal.

            NOT TO BE PUBLISHED.

 

                                                                                    MALLANO,
P. J.

We concur:

 

            ROTHSCHILD, J.

 

            CHANEY, J.