court's permission i'd like to reserve five minutes of my time for a bottle this appeal raises two issues the first question is whether under the federal arbitration act a court or an arbitrator determines whether a contractual arbitration is often as it is here satisfied by the fact that something is a contract of adhesion now the allegation here is that the arbitration clause is itself and he says and it's descriptively true that of argument is the arbitration clause because the next step is the question of substantive unconscionably which goes to oppressive or one sided terms here the allegations of substantive unconscionably concerning the arbitration participated in the arbitration proceedings for quite some period of time with the the plaintiff participated in the arbitration proceedings basically because she was  to participate in something far away and presumably expensive and she actually was not able to when she contested the venue and cost at every opportunity she had and ultimately she she had to give up she she information and didn't didn't grant the waiver and she she she she tried to give them the information to justify a fee waiver and she didn't get it and but it's also that activity inconsistent with her position that the arbitration itself is unconscionable shouldn't the first thing that she should have done would have been to seek some sort of an injunction a judicial action to prevent the arbitration from going forward instead she participated in the arbitration for a year before raising the argument that you know pressed on appeal that she had to fall participating she was raising these very arguments front from the guinean she was contesting but she didn't raise the argument that i can't be forced to go to arbitration that's that's the distinction and the way to do it is to seek some sort of a judicial order in joining the arbitration from proceeding if she truly essentially goes to the entirety of the contract so at least under california law on the first prong the entirety of the contract is being deemed unconscionable is it your argument that you can take a subset decisions it's very clear that procedural and substantive unconscionable earlier necessary so in fact the only provision of the contract here that's alleged to be unconscionable satisfying both elements is the the party would be freed introduce evidence to say ok you know did the rest of the contract is different there are different there was an opportunity to negotiate these other provisions and the arbitrator wouldn't be for close ruling on that because that question wasn't properly before the and she signed it and it was only when they sought to arbitrate that she very well and the evidence is that she she said that she had no opportunity for negotiation when mr grampus after did in describing the contract for mission it contract that wasn't disputed in the district court found that it wasn't disputed so it's not just that the district court passed on the issue it found that it wasn't in dispute that there was an agreed there was agreement on all sides was there any question raised by her with irrelevant and to the extent that it matters that shouldn't weigh against somebody challenging a clause so if you are you conceding that the remaining provisions of the contract are not unconscionable and we that that's not before the would make a natural sense to get to the substantive point if it wasn't procedurally and possible first instance it's a two step process and sort of like qualified immunity you can are used to me anyway well over to the procedural unconscionable it should be decided by the arbitrator to a large extent it came up during oral argument on the original appeal i mean there were there was were mentions of it in the briefing but the unconscionable from a procedural standpoint but that doesn't end the inquiry then you have to take the next and determine whether it's substantively unconscionable so you can have lots of contracts of this but unless there's something wrong with the substantive provision in question that doesn't make any difference in the labeling of unconscionable may be put already but legally in significant unless you tired to step through my understanding of what the plaintiff in this case was unconscionable and ruling in your favor was it right for the district court to rule on your favorite word should it not have ruled on that question i think it was perfectly acceptable for it to rule on substantive unconscionable  were would happen in this case there would be a motion before the arbitrator on that issue there wouldn't be a full blown hearing or trial of the case there would be preparing motion deciding that so would be brief ability but they need not be present in the same degree i think that's a phrase used by the california supreme court so the supreme court of california is analyzing this is sort of an intertwined issue if i understand what the theory was the guest of the panel is that if there is a claim of contract the decision which argued that which they only argue goes to one clause but this decision might implicate the other parts of the contract and the whole thing has to go to arbitration if that's true but arbitrator and then go back and forth for years i don't think you go back and forth for years but i'm not sure if that makes more sense and i think the finding prime the paint was because it goes it's an attack on the entire contract you could you could have arbitration and the reason we know that is mr grampa said in her declaration that she didn't even know there was an arbitration provision in the contract which of course was contrary to what she signed under oath in the franchise agreement which said that she read the entire arbitrator and get the arbitrator first to declare whether it's a contract of a piece that would be step one and then if the arbitrator says yes it's a contract that he then it would go interrupt if there's a contract of adhesion and then go to the court that's one possibility but i don't believe that's the only possibility i think as was done in this case and it's done in many cases the district court showing that the actual costs should have incurred would have been more than the cost incurred but what she argued and again i think it's important to look at what she argued in the district court not what she later argued in the ninth circuit in the district court her argument was that the costs weren't disclosed that was the sole argument that was made and that can be found in the record on page eighty eight and that is the argument that the district court rejected by finding that the costs or the fact that there would be costs were clearly disclose would to get into court because the armed terrorists and the cases that talk about that are employment or consumer cases where somebody is effectively being shut out from defending or prosecuting a statutory right and there is no the actual filing fees as opposed to the total cost of litigating are probably almost always more in an arbitration contacts than the filing fee for court and i  contract between companies and individuals that impose costs in excess of court costs and require long distance then you travel are unconscionable that there's california law on all these points and there's every reason for the court to decide that