SANCHEZ v. WESTERN PIZZA ENTERPRISES, INC












Filed 3/17/08






CERTIFIED FOR PUBLICATION



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

OCTAVIO SANCHEZ et al., Plaintiffs and Respondents, v. WESTERN PIZZA ENTERPRISES, INC., Defendant and Appellant.

B203961 (Los Angeles County Super. Ct. No. BC375868)

STORY CONTINUE FROM PART I….


An employee’s statutory right to reimbursement of job expenses is unwaivable (Lab. Code, §§ 2802, 2804; Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, 951-952), as is the statutory right to receive minimum wage (Lab. Code, § 1194; Gentry, supra, 42 Cal.4th at pp. 455-456). Because this action involves the enforcement of unwaivable statutory rights, the rule from Gentry applies. (Gentry, supra, at p. 457.)
Our consideration of the factors from Gentry, supra, 42 Cal.4th 443, supports the trial court’s decision. First, any individual recovery of the difference between the amounts paid for reimbursement of delivery expenses and the amounts actually incurred is likely to be modest. The same is true of any individual recovery for the alleged failure to pay minimum wage as a result. (See id. at pp. 457-458.) Second, the delivery drivers are low wage earners, and the potential for retaliation against members of the class who litigate or arbitrate individually is significant. (See id. at pp. 459-461.) Third, Sanchez presented evidence that most of the drivers are immigrants with limited English language skills who are likely to be unaware of their legal rights.[1] (See id. at p. 461.)
We conclude that the evidence supports the reason stated for the trial court’s decision that the class arbitration waiver is unenforceable under the rule from Gentry, supra, 42 Cal.4th 443. Western Pizza has not shown that the court applied improper legal criteria or made an erroneous legal assumption, and therefore has failed to show an abuse of discretion.
4. The Arbitration Agreement Is Unconscionable
a. Procedural and Substantive Unconscionability
Procedural and substantive unconscionability must both be present to justify the refusal to enforce a contract or clause based on unconscionability. (Armendariz, supra, 24 Cal.4th at p. 114.) Procedural unconscionability focuses on oppression or unfair surprise, while substantive unconscionability focuses on overly harsh or one-sided terms. (A & M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 486; U. Com. Code, com. 1, 23A West’s Ann. Com. Code (2002 ed.) foll. § 2302, p. 246.[2]) The more procedural unconscionability is present, the less substantive unconscionability is required to justify a determination that a contract or clause is unenforceable. Conversely, the less procedural unconscionability is present, the more substantive unconscionability is required to justify such a determination. (Armendariz, supra, 24 Cal.4th at p. 114.)
“[A] finding of procedural unconscionability does not mean that a contract will not be enforced, but rather that courts will scrutinize the substantive terms of the contract to ensure they are not manifestly unfair or one-sided. [Citation.] . . . there are degrees of procedural unconscionability. At one end of the spectrum are contracts that have been freely negotiated by roughly equal parties, in which there is no procedural unconscionability. Although certain terms in these contracts may be construed strictly, courts will not find these contracts substantively unconscionable, no matter how one-sided the terms appear to be. [Citation.] Contracts of adhesion that involve surprise or other sharp practices lie on the other end of the spectrum. [Citation.] Ordinary contracts of adhesion, although they are indispensable facts of modern life that are generally enforced [citation], contain a degree of procedural unconscionability even without any notable surprises, and ‘bear within them the clear danger of oppression and overreaching.’ [Citation.]
“Thus, a conclusion that a contract contains no element of procedural unconscionability is tantamount to saying that, no matter how one-sided the contract terms, a court will not disturb the contract because of its confidence that the contract was negotiated or chosen freely, that the party subject to a seemingly one-sided term is presumed to have obtained some advantage from conceding the term or that, if one party negotiated poorly, it is not the court’s place to rectify these kinds of errors or asymmetries.” (Gentry, supra, 42 Cal.4th at pp. 469-470.)
Unconscionability under California law is a generally applicable contract defense and therefore applies to arbitration agreements regardless of whether the FAA applies. (Armendariz, supra, 24 Cal.4th at p. 114.) Discover Bank, supra, 36 Cal.4th 148, held that a class arbitration waiver in a consumer credit cardholder agreement was unconscionable under California law.[3] (Id. at pp. 162-163.) Discover Bank held further that the FAA did not preempt California law on this point, and stated that state courts are not obliged to enforce contractual terms that “are found to be unconscionable or contrary to public policy under general contract law principles.” (Id. at p. 166.)
We independently review the trial court’s determination that a contractual provision is unconscionable if the material facts are undisputed, as here. (Gatton v. T‑Mobile USA, Inc. (2007) 152 Cal.App.4th 571, 579.)
b. The Arbitration Agreement is Procedurally Unconscionable
Procedural unconscionability focuses on oppression or unfair surprise, as we have stated. Oppression results from unequal bargaining power when a contracting party has no meaningful choice but to accept the contract terms. (A & M Produce Co. v. FMC Corp., supra, 135 Cal.App.3d at p. 486; see Spanogle, Analyzing Unconscionability Problems (1969) 117 U. Pa. L.Rev. 931, 944.) Unfair surprise results from misleading bargaining conduct or other circumstances indicating that a party’s consent was not an informed choice. (A & M Produce, supra, at p. 486; see Spanogle, supra, at p. 943.[4])
Gentry held that an employment arbitration agreement was procedurally unconscionable despite the presence of a 30‑day opt-out provision because there were indications that the plaintiff’s failure to exercise that option was not a free and informed decision. (Gentry, supra, 42 Cal.4th at pp. 470‑472.) Gentry stated that the plaintiff’s decision was not an informed decision because an explanation of the benefits of arbitration in an employee handbook failed to mention significant disadvantages of the particular arbitration agreement compared with litigation, and therefore was “markedly one-sided” and presented “a highly distorted picture.” (Gentry, supra, 42 Cal.4th at pp. 470, 471.) The handbook stated that arbitration was “ ‘much less expensive’ ” than litigation and that “ ‘the arbitrator can award monetary damages to compensate you for the harm you may have suffered.’ ” (Id. at p. 471.) It failed to disclose, however, that the arbitration agreement imposed (1) shorter limitations periods; (2) a limitation on the duration of backpay awardable as damages; (3) a limitation on the amount of punitive damages; and (4) a provision stating that attorney fees “ ‘generally’ ” would be borne by each party unless the arbitrator exercised his or her discretion to award fees to the employee, compared with a prevailing plaintiff’s entitlement to a fee award under Labor Section 1194, subdivision (a). (Gentry, supra, at pp. 470-471.) Although the lengthy arbitration agreement disclosed all of those terms, Gentry concluded that “only a legally sophisticated party would have understood that these rules and procedures are considerably less favorable to an employee than those operating in a judicial forum.” (Id. at p. 471.)
Gentry stated that the plaintiff’s decision likely was not made freely because the materials provided to the plaintiff clearly expressed the employer’s preference for arbitration. (Gentry, supra, 42 Cal.4th at pp. 471-472.) Gentry stated: “Given the inequality between employer and employee and the economic power that the former wields over the latter (see Armendariz, supra, 24 Cal.4th at p. 115), it is likely that Circuit City employees felt at least some pressure not to opt out of the arbitration agreement. The lack of material information about the disadvantageous terms of the arbitration agreement, combined with the likelihood that employees felt at least some pressure not to opt out of the arbitration agreement, leads to the conclusion that the present agreement was, at the very least, not entirely free from procedural unconscionability.” (Id. at p. 472, fn. omitted.)
The record here does not indicate a distorted presentation of the benefits of arbitration to the degree that was present in Gentry, supra, 42 Cal.4th 443. The arbitration agreement states that the purpose of the agreement is “to resolve any disputes that may arise between the Parties in a timely, fair and individualized manner,” but otherwise does not extol the benefits of arbitration. The arbitration agreement does not limit the limitations periods, the remedies available, or the amount of punitive damages. It states, “Except as otherwise required by law, each party shall bear its own attorney fees and costs,” and therefore incorporates any statutory right to recover fees rather than creating a presumption against a fee recovery. Thus, the arbitration agreement neither contains the same types of disadvantages for employees as were present in Gentry nor fails to mention such disadvantageous terms. Moreover, the arbitration agreement expressly states that that the agreement “is not a mandatory condition of employment.”
We conclude, however, that the record indicates a degree of procedural unconscionability in two respects. First, as in Gentry, supra, 42 Cal.4th at page 472, the inequality in bargaining power between the low-wage employees and their employer makes it likely that the employees felt at least some pressure to sign the arbitration agreement. Second, the arbitration agreement suggests that there are multiple arbitrators to chose from (“the then-current Employment Arbitration panel of the Dispute Eradication Services” and fails to mention that the designated arbitration provider includes only one arbitrator. This renders the arbitrator selection process illusory and creates a significant risk that Western Pizza as a “repeat player” before the same arbitrator will reap a significant advantage.[5] (See Armendariz, supra, 24 Cal.4th at p. 115; Mercuro v. Superior Court (2002) 96 Cal.App.4th 167, 178.) These circumstances indicate that the employees’ decision to enter into the arbitration agreement likely was not a free and informed decision but was marked by some degree of oppression and unfair surprise, i.e., procedural unconscionability. We therefore must scrutinize the terms of the arbitration agreement to determine whether it is so unfairly one-sided as to be substantively unconscionable.
c. The Arbitrator Selection Provision Is Substantively
Unconscionable

“Substantively unconscionable terms may take various forms, but may generally be described as unfairly one-sided.” (Little v. Auto Steigler, Inc. (2003) 29 Cal.4th 1064, 1071 (Little).) “Given the lack of choice and the potential disadvantages that even a fair arbitration system can harbor for employees, we must be particularly attuned to claims that employers with superior bargaining power have imposed one-sided, substantively unconscionable terms as part of an arbitration agreement. ‘Private arbitration may resolve disputes faster and cheaper than judicial proceedings. Private arbitration, however, may also become an instrument of injustice imposed on a “take it or leave it” basis. The courts must distinguish the former from the latter, to ensure that private arbitration systems resolve disputes not only with speed and economy but also with fairness.’ [Citation.]” (Armendariz, supra, 24 Cal.4th at p. 115.)
Sanchez contends the arbitration agreement is substantively unconscionable in several respects. He cites the class arbitration waiver, the small claims provision, the absence of any provision requiring a written arbitration award, the designation of an arbitration provider consisting of a single arbitrator, and the absence of any express provision for discovery. In light of our conclusion that the trial court properly decided that the class arbitration waiver is contrary to public policy and therefore unenforceable, we need not decide whether that provision is unconscionable. (See Gentry, supra, 42 Cal.4th at p. 467 [“the validity of a class arbitration waiver was analyzed in the previous part of this opinion in terms of unwaivable statutory rights rather than unconscionability”].)
Armendariz, supra, 24 Cal.4th 83, addressed some of the other bases for unconscionability asserted here. Armendariz held that an employee can be compelled to arbitrate unwaivable statutory claims only if certain minimum requirements are satisfied: (1) the arbitration agreement may not limit the statutory remedies available (id. at pp. 103-104); (2) the parties are entitled to discovery sufficient to vindicate the unwaivable statutory rights (id. at pp. 105-106); (3) the arbitrator must provide a written decision revealing “the essential findings and conclusions on which the award is based” (id. at p. 107); and (4) the employer must bear all costs that are unique to arbitration (id. at p. 113).[6] (See Little, supra, 29 Cal.4th at p. 1076.)[7] Armendariz held that to the extent that the arbitration agreement was silent on these issues, these requirements must be implied as a matter of law. (Armendariz, supra, 24 Cal.4th at pp. 106, 107, 113 [interpreted the agreement to provide for adequate discovery, a written arbitration award, and the employer’s payment of arbitration costs].) To the extent that the agreement expressly limited these rights, Armendariz held that the agreement was contrary to public policy and unenforceable. (Id. at p. 104 [stated that a provision limiting damages was unlawful].)
Armendariz also held that the arbitration agreement was procedurally and substantively unconscionable. (Armendariz, supra, 24 Cal.4th at pp. 114-121.) With respect to substantive unconscionability, Armendariz considered the lack of mutuality of the agreement to arbitrate and a limitation on recoverable damages. The arbitration agreement lacked mutuality because it required employees to arbitrate their wrongful termination claims against the employer but did not require the employer to arbitrate any of its claims against employees. (Id. at pp. 115-116.) Armendariz concluded that this provision was unfairly one-sided (id. at pp. 118-120) and concluded that the limitation on damages compounded the unconscionability of the arbitration agreement (id. at p. 121). In its discussion of substantive unconscionability, Armendariz did not consider those issues on which the arbitration agreement was silent where terms were implied as a matter of law. (Id. at pp. 115-121; see also id. at p. 124 [described the unlawful provisions as only “an unlawful damages provision and an unconscionably unilateral arbitration clause”].) Because those terms were implied as a matter of law, the absence of those express provisions was not unconscionable and provided no basis to deny the enforcement of the arbitration agreement. (Id. at pp. 106, 113; see Little, supra, 29 Cal.4th at p. 1075 & fn. 1 [stated that the absence of an express provision requiring judicial review was not unconscionable for this reason].)
Similarly here, we conclude that the absence of express provisions requiring a written arbitration award and allowing discovery does not render the arbitration agreement unconscionable. Rather, those terms are implied as a matter of law as part of the agreement. (Armendariz, supra, 24 Cal.4th at pp. 106, 107.)
The small claims provision states that for claims that do not exceed $50,000, the arbitrator may apply “relaxed rules of evidence, the use of broad principles of equity in place of strict application of law, telephonic hearings, and such other economic procedures as the Arbitrator deems appropriate under the circumstances of the dispute and consistent with due process.” An arbitrator ordinarily has broad discretion with respect to the procedures and law governing the arbitration. Rules of evidence and judicial procedure do not apply to arbitration proceedings unless the parties otherwise agree. (Code Civ. Proc., § 1282.2, subd. (d); Sy First Family Ltd. Partnership v. Cheung (1999) 70 Cal.App.4th 1334, 1342.) Arbitration procedures violate the common law right to a fair hearing “only in the clearest of cases, i.e., when the applicable procedures essentially preclude the possibility of a fair hearing.” (Graham v. Scissor-Tail, Inc. (1981) 28 Cal.3d 807, 826, fn. 23 (Scissor-Tail).) “Moreover, ‘[a]rbitrators, unless specifically required to act in conformity with rules of law, may base their decision upon broad principles of justice and equity, and in doing so may expressly or impliedly reject a claim that a party might successfully have asserted in a judicial action.’ [Citations.]” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 10‑11 (Moncharsh).)[8] We conclude that the matters authorized under the small claims provision are an ordinary incident of arbitration and that the small claims provision is not substantively unconscionable.
Finally, an arbitration agreement must provide for a neutral arbitrator. (Scissor‑Tail, supra, 28 Cal.3d at p. 826; see Armendariz, supra, 24 Cal.4th at p. 103 [stated that a neutral arbitrator “is essential to ensuring the integrity of the arbitration process”].) In our view, the designation of a “panel” of arbitrators consisting of a single arbitrator selected by Western Pizza created a false appearance of mutuality in the selection of an arbitrator. Moreover, the effective designation of a single arbitrator in what appears to be a standard arbitration agreement applicable to a large number of corporate employees gives rise to a significant risk of financial interdependence between Western Pizza and the arbitrator, and an opportunity for Western Pizza to gain an advantage through its knowledge of and experience with the arbitrator. (See Armendariz, supra, 24 Cal.4th at p. 115; Mercuro v. Superior Court, supra, 96 Cal.App.4th at p. 178.) We conclude that this provision is unfairly one-sided and substantively unconscionable.
5. The Entire Arbitration Agreement Is Unenforceable
A trial court may either sever an unconscionable or otherwise unlawful provision from an arbitration agreement and enforce the remainder, restrict the application of the provision so as to avoid unconscionable results, or refuse to enforce the entire agreement. (Armendariz, supra, 24 Cal.4th at pp. 122-124, citing Civ. Code, §§ 1670.5, 1598 & 1599 .) Although a court has some discretion in this regard, a court may refuse to enforce the entire agreement only if the central purpose of the agreement is tainted by illegality. (Ibid.) “If the central purpose of the contract is tainted with illegality, then the contract as a whole cannot be enforced. If the illegality is collateral to the main purpose of the contract, and the illegal provision can be extirpated from the contract by means of severance or restriction, then such severance and restriction are appropriate.” (Armendariz, supra, 24 Cal.4th at p. 124; accord, Little, supra, 29 Cal.4th at p. 1074.)
Whether a contract is severable in this regard is primarily a question of contract interpretation. “ ‘Whether a contract is entire or separable depends upon its language and subject matter, and this question is one of construction to be determined by the court according to the intention of the parties.’ ” (Armendariz, supra, 24 Cal.4th at p. 122, quoting Keene v. Harling (1964) 61 Cal.2d 318, 320.) Questions of contract interpretation are subject to de novo review unless the interpretation turns on the credibility of extrinsic evidence. (Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865.)
Armendariz stated that two reasons for severing or restricting illegal terms rather than voiding the entire contract are “first . . . to prevent parties from gaining undeserved benefit or suffering undeserved detriment as a result of voiding the entire agreement—
particularly when there has been full or partial performance of the contract. [Citations.] . . . Second, more generally, the doctrine of severance attempts to conserve a contractual relationship if to do so would not be condoning an illegal scheme. [Citations.]” (Armendariz, supra, 24 Cal.4th at pp. 123-124.) “The overarching inquiry is whether ‘ “the interests of justice . . . would be furthered” ’ by severance. [Citation.]” (Id. at p. 124.)
The arbitration agreement in Scissor-Tail provided for arbitration before the union of the party imposing the agreement. (Scissor-Tail, supra, 28 Cal.3d at p. 813.) Scissor‑Tail concluded that this provision was unconscionable because the arbitrator was likely to be biased in favor of that party. (Id. at pp. 826-828.) Rather than invalidate the arbitration agreement in its entirety, Scissor-Tail concluded that the parties should be afforded an opportunity to agree on an arbitrator and, failing any agreement, the court on the petition of either party should appoint a neutral arbitrator pursuant to Code of Civil Procedure section 1281.6. (Scissor-Tail, supra, at p. 831.) Armendariz later explained that the statute, which provides for the court to appoint an arbitrator in the absence of an agreed method of selection by the parties, effectively authorized the reformation of the arbitration agreement in Scissor-Tail with respect to the selection of an arbitrator. (Armendariz, supra, 24 Cal.4th at p. 126.)
The arbitration agreement in Armendariz included both an unlawful damages limitation and an unconscionably unilateral provision requiring the arbitration of only the employee’s claims against the employer. (Armendariz, supra, 24 Cal.4th at p. 124.) Armendariz stated: “[s]uch multiple defects indicate a systematic effort to impose arbitration on an employee not simply as an alternative to litigation, but as an inferior forum that works to the employer’s advantage. In other words, given the multiple unlawful provisions, the trial court did not abuse its discretion in concluding that the arbitration agreement is permeated by an unlawful purpose. [Citation.]”[9] (Ibid.) Armendariz also stated that the unilateral arbitration clause was not capable of severance or restriction but could be removed from the agreement only through reformation and augmentation of the agreement, which is not permitted. (Id. at pp. 124‑125.) This further indicated that the arbitration agreement was permeated by unconscionability. (Ibid.) Armendariz therefore invalidated the entire arbitration agreement. (Ibid.)
Armendariz stated in dicta that although the court need not decide whether the unlawful damages provision alone would justify the refusal to enforce the arbitration agreement: “An employer will not be deterred from routinely inserting such a deliberately illegal clause into the arbitration agreements it mandates for its employees if it knows that the worst penalty for such illegality is the severance of the clause after the employee has litigated the matter. In that sense, the enforcement of a form arbitration agreement containing such a clause drafted in bad faith would be condoning, or at least not discouraging, an illegal scheme, and severance would be disfavored unless it were for some other reason in the interests of justice. [Citation.] . . . . Because we resolve this case on other grounds, we need not decide whether the state of the law with respect to damages limitations was sufficiently clear at the time the arbitration agreement was signed to lead to the conclusion that this damages clause was drafted in bad faith.” (Armendariz, supra, 24 Cal.4th at p. 125, fn. 13.)
The arbitration agreement in Little included only one unlawful provision allowing review by a second arbitrator of any award over $50,000. (Little, supra, 29 Cal.4th at pp. 1071-1074.) Little concluded that this provision could be severed without disturbing the rest of the arbitration agreement and that no reformation was needed. (Id. at p. 1075.) Little distinguished Armendariz, supra, 24 Cal.4th 83, on these grounds. (Little, supra, 29 Cal.4th at p. 1075.) Little stated further that there was “no indication that the state of the law was ‘sufficiently clear at the time the arbitration agreement was signed to lead to the conclusion that this [appellate arbitration provision] was drafted in bad faith.’ (Armendariz, supra, 24 Cal.4th at pp. 124-125, fn. 13.)” (Id. at pp. 1075-1076.) Little concluded that severance was appropriate and that the arbitration agreement was valid and enforceable with the unconscionable provision stricken. (Id. at p. 1076.)
In Discover Bank, the trial court determined that a class arbitration waiver in a consumer credit cardholder agreement was unconscionable and that the provision was severable, and struck it from the arbitration agreement. (Discover Bank, supra, 36 Cal.4th at p. 155.) The Court of Appeal held that any California rule prohibiting class arbitration waivers was prohibited by the FAA and issued an extraordinary writ directing the trial court to issue an order enforcing the arbitration agreement as written. (Ibid.) The California Supreme Court held that the class arbitration waiver was unconscionable under general contract law principles and that the FAA did not preempt California law on this issue. (Id. at pp. 162-163, 165-166.) Discover Bank therefore reversed the judgment by the Court of Appeal (id. at p. 174), and did not address the question of severability.
Gentry held that a class arbitration waiver in an employment arbitration agreement was unenforceable if the trial court on remand determined that class arbitration would be a significantly more effective means than individual arbitrations to vindicate the employees’ right to overtime pay. (Gentry, supra, 42 Cal.4th at p. 466.) Gentry also held that a 30-day opt-out provision was procedurally unconscionable (id. at pp. 470‑472), and remanded the matter for a decision by the trial court as to whether the original arbitration agreement or an amended agreement was effective, whether the agreement contained substantively unconscionable terms, and whether severance was appropriate (id. at pp. 472-473). Gentry stated: “Generally speaking, when an arbitration agreement contains a single term in violation of public policy, that term will be severed and the rest of the arbitration agreement enforced. (Little, supra, 29 Cal.4th at pp. 1074-1075.) We believe that severance is particularly appropriate in the case of class arbitration waivers because, unlike limitations on remedies or other limitations that are invalid on their face (see Armendariz, supra, 24 Cal.4th at pp. 103-104), such waivers will only be invalidated after the proper factual showing, as discussed above. The presence of a class arbitration waiver in an employee arbitration agreement therefore does not by itself ‘indicate a systematic effort to impose arbitration on an employee not simply as an alternative to litigation, but as an inferior forum that works to the employer’s advantage.’ (Id. at p. 124.)” (Gentry, supra, 42 Cal.4th at p. 466.)
Some Court of Appeal opinions have held that arbitration agreements containing more than one unlawful provision of importance were permeated by an unlawful purpose and have refused to enforce the agreements. (E.g., Ontiveros, supra, 164 Cal.App.4th 494, 515; Murphy, supra, 156 Cal.App.4th at p. 149.) Other opinions holding that severance was not available relied at least in part on the inability to remove the unconscionable effect of the provisions without impermissibly reforming or augmenting the agreement, a factor that is not present here. (E.g., Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1287-1288; Fitz v. NCR Corp. (2004) 118 Cal.App.4th 702, 726-727; Martinez v. Master Protection Corp. (2004) 118 Cal.App.4th 107, 119; Abramson v. Juniper Networks, Inc. (2004) 115 Cal.App.4th 638, 666-667; O’Hare v. Municipal Resource Consultants (2003) 107 Cal.App.4th 267, 279; Mercuro v. Superior Court, supra, 96 Cal.App.4th at pp. 185-186; see also Ontiveros, supra, 164 Cal.App.4th at p. 515, fn. 16.)
The arbitration agreement here includes a class arbitration waiver that is contrary to public policy and an unconscionable arbitrator selection clause, as we have stated. These are important provisions that, if they were not challenged in litigation, could create substantial disadvantages for an employee seeking to arbitrate a modest claim. Although it may be true that neither of these provisions alone would justify the refusal to enforce the entire arbitration agreement (see Gentry, supra, 42 Cal.4th at p. 466; Scissor‑Tail, supra, 28 Cal.3d at p. 828), we believe that these provisions considered together indicate an effort to impose on an employee a forum with distinct advantages for the employer. As in Armendariz, supra, 24 Cal.4th at page 124, we conclude that the arbitration agreement is permeated by an unlawful purpose. Accordingly, the denial of the motion to compel arbitration was proper.









DISPOSITION
The order is affirmed. Sanchez is entitled to recover his costs on appeal.

CERTIFIED FOR PUBLICATION


CROSKEY, J.
We Concur:


KLEIN, P. J.


ALDRICH, J.


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