believe that the substantive unconscionable of another provision that substantively unconscionable is their confidentiality slash provision which does not allow for a person in arbitration or in mediation  to discuss anything basically with coworkers it was strict discovery and we feel that the previous president versus eighteen t which was actually a narrow or restrictive or confidentiality provision city of circuit city versus math or allows the people to basically like in this case this is one of the aspects here as waves in our issue which means that if you knew you were missing lunches or missing overtime three four years ago you basically if you didn't bring it within that one year of knowledge you have that you've lost it which is different from a statue of limitations provision that says you bring it within a year of being let go or a year of when you initiate the based on on conditions so that if you miss if you if there's a policy that says you're always you always have to work through lunch once you once were through lunch it appears that you have to bring with any air rather th being able to bring up later and limit the time period that that's covered by the damage and that is that essentially what you're saying well it's not i think you could go back under most legal regimes now four years  provision rolling out she is then presented with this option either quitting or abiding by if she were to abide by it how could she go back and immediately how could she go back for her previous wage claims think let's hope they wouldn't come and argue that ok well we sent a number of letters to them asking them about this issue and they never agreed to abide by a well let's just take it in terms of the real question is if you look at their excerpts of record on page nineteen it says it must be served within one year of the date the claim for roads we feel that this is actually falls within go versus circuit city and circuit city greenmount or that it does involve the continued violation issues that w i don't quite understand just well i'm not only seems to classify it as a notice provision but you lose your claims if you don't give notice so here they're sort of having it both ways blurring the distinction between  claim which has a one year statute of limitations which this was approximately i can't remember the dates but she was like oh i believe in the summer of two thousand and four and heard her claim a rose in being clear about whether this is now is in my opinion whether we could go back four years and was where did you get your calling agreement i mean so in other words you're saying you're negotiating and now you're unsure sure whether she may have lost her one year well i mean they were we were negotiating over this issue so they were and i guess perhaps in the course of that she would have lost it did she ever fi we were not certain and certainly the language of the arbitration agreement makes it unclear about whether this is a no as or whether this is a statue of limitations provision we were unclear about losing and i think that point that out not brief about losing contact her or she didn't contact me until months after she was let go which means that she was already pursuant to this amount in the stocks limitations losing weight claims going back four years i'm not understanding  it's either a yes or no but you can get you might you disagree on that point that's correct i mean the basic issue for us is this is a waste playing with three to two to three years to actual imitations if after she's like oh when she contacts an attorney we file a claim how are we to know what they are and that you as a statue limitations provide a provision as especially when we contact them try to find an answer and we you know are they going to say no it actually goes back three four years or are they going to say no employer context it's even to me more oppressive because employers would know all about other employees would no doubt would be able to talk to managers supervisors etc without theoretically violating this but th the court to clarify and rewrite the statue limitations in a way that was clear or to make it comply with the mandatory exactly your honor and to try to find out how the confidentiality provision  we got rid of the one year notice just hypothetically would would you would you and we got rid of this confidentiality you would still be upset with this agreement correct the reason for that is first of all unless cases even if it's quite unconscious so you kind of moving along and the question is what point do you say well you know this is these are cars are no good but we're just going to chop how do we decide that i mean our major quarrel if the provisions are stricken that we believe are on a on a forcible that i provided that notice because we also brought an action for declaratory relief is given to that disagree with that your honor i think that the essay and loose forward and the supreme court's decision in in adams is very clear that you have to treat employment arbitration as contract the same way you would treat any other contract and so looking  the f a a and adams and the lease for district decision of this court all point towards having to apply neutral contract principles in an employment arbitration contract the same way you would in any other contract and i'm not aware of a case subsequent to the dean witter case which you're absolutely correct your honor is like this and the dean witter case i think is the one you're referring to the intermediate appellate court case in california granted it's an intermediate appellate court case and it's you know a few years old but to my knowledge it's still good law there flexible than people who in the job for a while in terms of what their actual options are because obviously when somebody works at a place for a while you have an investment there in terms of seniority in terms of benefits in terms of promotions in terms  for a new about for a new hire who doesn't have a job i mean a new hire presumably who is looking for a job she'll have got here actually what i'm saying your honor is that she would have a number of months to consider that as opposed to the new hire position where you know somebody might not have that point of of all of them and i recognize that there are a lot of cases out there and they you know they make fun shades of distinction but i think in particularly considering you know that again you have to apply neutral contract principles the same way you would in any other  not both a notice and a statute of limitations for vision i don't think it is your honor and if i could just take this moment to it's just clarify something that opposing counsel said opposing counsel characterize it a number of times as having to provide one your notice from the  arises if you read the actual agreement and i think this is on page eight of the record the notice must be given with within one calendar year from the condition or situation providing the basis for the claim is known to the employee which i think is very different could go back whenever the limitations period is you couldn't cope beyond it but you like the fact you go for the limitations program also not paid for for lunch hour when make a difference in other words as long as the west carries within the times with incidents within the limitations carried if not being paid for lunch hour that would count and my understanding is that you're kind of right that here is that not right you're trying to say that that that it isn't good enough that you know that's what's happened to you during the limitations limitations a statute of limitations as i understand it is measures both sort of the timeframe from within which you can bring the claim and also the damages that you can that you can ask for because you can't go back beyond the statute of limitations a notice provision is essentially the first half if you will of that statute of limitations it is you have to let us know that this claim exists in that you intend to bring a claim where you know within x amount of time for x in this case as one year from when you have knowledge of it still have as many years as you would normally have under under the prevailing law which and i think this panel is made of an excellent point earlier that in a lot of instances this is actually the same set of limitations for the you know for the provisions that are that are at issue are i said to the allegations issue in the complaint that from the from which this arises but i think that that's the distinction and i'm having trouble because if if the statute of limitations on something in your view when the person that had to talk to tell you at the time that a rose the next first arose which would be two years before and so i've lost my claim i think i think that would be a two step analysis your honor which i  regardless you know when you when you give us notice on that second claim and you want and you go to arbitrate if it's if the mediation is unsuccessful you would have the same ability to argue continuing violations you know what it's not only this one that i'm  i'm complaining of you know six months ago but there was this other time that the same thing happened you know a year ago and although you know it's not the same instance and that's outside the statue of limitations you know i feel that they were connected and you know obviously this kind of knows that there's a whole body of case law around that sort of telling you know determining when that's the case and why it's not nothing in this provision stop somebody from making that argument the same way that you could make a continuing continuing violent argument with respect to i'm sorry going to take another claim where there is a three year and you know give notice of that claim within the one year you've lost the claim correct absolutely so you so in that regard you have shortened the statute of if the panel's uncomfortable then you know then the agreement certainly provides for that separate and apart from you know that your general ability you know to it to sever unconscionable her vision which the court has regardless but i'm saying that even outside of that is this the intent of this provision is only  expounding on why that provision is there in the phrase i was it is but but regardless of that is the subs an important question of your question i don't think that this violates california law and i don't think it violates california law because there's nothing in here i've heard a couple of references from opposing counsel so this is a gag order and when you have a provision in here that says that you can't you know that there arbitration will be you know will be confidential but you're still allowed to talk to a talk with anybody you need to talk to talk with in order to bring your arbitration patricia i don't think i would if i read that i wouldn't think that somebody was directly involved in the an arbitration if they were a potential witness and i wanted to talk to them have you ever heard any other problems about the line sure the sexual harassment of this partner that seems to me to not be a person who's directly involved so that's why i got stuck and i misinterpreting that respect i have a slightly different perpetration of the language than the panel does not directly involved you can you can divulge just anyone you can divulge anything rather to anyone not directly involved in the mediation arbitration or the content of the pleadings i think that if you you know again let's take the  and that's why i'm having trouble trying to really imagine being either only albany or being you know has a melanie going to go get witness from the last employer to find out that there is a problem i think  because that would not be a third party not connected with the mediation but they were tracing but failing that i would just again point out that there is the savings loss at the beginning of the provision which if the panel you know perceives this to be an insurmountable difficulty under your california law say that you can't even recall you could still leave it in there and give it to california people because they're supposed to know that falling down into california well i think that if the panel makes that decision that then clearly the law in this case will be the next if that's the decision of the panel then that will be the decision fell by the law going forward and in california this would not be applicable to thank you thank you i think thing is problematic for two reasons one it's just there was not much partly with the reason why we need them to be confidential but you know to answer your question about seeing as well i think in all honesty that saying it is extremely problematic after loose forward loose after this panel's decision and was forward because if you read it if you read taking it very explicitly he says that the reason that they have a problem with the confidentiality provision is because they feel that the employer has you know a you know a repeat play or advantage in arbitration and lose forward rejected thank you thank you very much i just would like to address one real basic issue is on the confidentiality provision i think your your honour's are right we had no idea of knowing based on how it's drafted who we could talk to if we could talk to frankly anyone thank you for your arguments morning