appellant neighbors completion and production services company i would like to reserve three minutes for rebuttal this court should reverse the district court's order and require this wage in our dispute to be arbitrated as the lot of other documents and you know it's it's not first and foremost and it wasn't explained to them specifically and has it has been in some other cases where we've said there was no unconscionable that the state has necessarily declined to prosecute these claims and so it's left to if someone wishes to do it as a private attorney general they can so what's your best i don't doubt that the arbitration agreement says there are two my question is are they are bridgeable in the nature of the claims these these are claims by these are the states claims these states in force in claims which are being brought by a private attorney general the state has consented to let the private attorney general bring them but has to stay consented to arbitration well and i do understand although we have not brief the cases that have come claims but i was not clear whether that counts as dictum or whether that is in some way more binding it's certainly a suggestion but well in this county and house the same language right we really don't sort care which way you go with long as you're able to bring these clean somewhere well and not here's my difficulty to respond to it because there is plenty of authority to support your point the result in this case will bind the state of california with respect to those paga claims he won't find any individuals because they may retain their individual causes of action but it will end the paga case a great if this is arbitrated whichever way it comes out it will bind the state of california no second pog case could be brought on the attorney general couldn't wake up the next day and say opus i passed up a big opportunity this was arbitrary you'd come into court and say it was arbitrator ready we're done my rights to bring the paga claim that he also say and i'm perfectly happy if there are be treated as opposed to brought in court where does he as you do that with the knowledge that whatever rights and obligations the pla so so this actually arbitration litigation is more than the state would actually get if it were doing it itself but you do agree that the result in the case would preclude a second suit by the state for the exact  was in acted every employee in california now has the potential claim for this right the legislature said you have the potential to have this claim and at that point indeed and and each individual pla arbitrated in the wards confirm a second plaintiff could not bring up a clue that's that's california law that second point it could bring a claim on his own behalf for injuries that he or she suffered but they couldn't bring action there can't be a second individual paga action later on based on the same violations that are being alleged here i mean i hope your clients got to hope that a contract between thailand's and the city of long beach to determine at least according to the plaintiffs that that that agreement is subject to the prevailing wage laws of the state of california my client was sued in this case because we also the tidelands is the general contractor to neighbors and so on the one hand they are serving the paga claims and other claims against neighbors and then at the same time they're seeking a declaration that the main contract between the city of long beach and tide lines is a prevailing wage contract my clients are entitled to take advantage of and to enforce the dispute resolution program by the very terms of the agreement that that my client is an attended third party beneficiary of the agreement if you look at the definition of the company the definition within the d r p itself necessarily concludes a nyone who is alleged to be jointly and severally liable with neighbors also separately the definition of the company says that neighbors as agents are also within the ambit of the debt defined term company and in plaintiff's complaint in the action in the in the trial court they specifically allege that my client is jointly and severally liable with going to as well as that my my client guess i i guess this is a question you go to your opponent but where i read the straight to know it is so easy it's seems to me just derivative maybe i'm wrong maybe the other side has another argument that isn't it just derivative of the question of whether or not the plaintiff's dispute with neighbors goes to arbitration we would agree because this panel has been overview over the matter rather than sending it back to the trial court to resolve the issues that had not previously been resolved we're asking the panel to actually go to do so in like me on the record below did your opponent argue below that even if neighbors is entitle to arbitration you're not he did your honor and his arguments below dealt with his assertion by his arguments below as well as in this court he was they were arguing  that my client was not a so called electing entity and because my clients were not an elected entity they were not able to leave even if you're not entitled to arbitration wouldn't the appropriate thing to do in this case be to stay any litigation pending determination of whether or not in the arbitration neighbors had violated any agreement with well we would assert that because the declaratory relief claim is asserted by both against neighbors as well as eggs as well as  clients are very interested in the issue of whether and to what extent the the contract between the city of long beach on the one hand and tidelands on the other hand is a prevailing is a contract which calls for the prevailing wage and so as a agreements i'm turning to leave and i will i will assert that we had made the various arguments about why as a non signatory to the agreement or in title twenty four said because we're in a ted third party ben there doesn't seem to via the a counter argument on the other side i'm just trying to figure out whether this is an issue that's really contested we want to make sure that we if the court is inclined to reverse the district court but that it do so and that we send the claims against my two clients to arbitration as well with regard to the validity of a arbitration agreement itself i just starting backwards in time the issue of severability is one that has as has not been fully explored in federal courts more so it has been in calif and the california supreme court that starting with the armored cars decision back in two thousand court had directed that when you if you were to find the agreement was substantively or unconscionable that there still is a general direction that the agreement should be enforced if the provisions or several i'm interested in  that we have two provisions here that the other side says are unconscionable three but only to focus and two one of them says basically everybody bears their own costs in the arbitration but for the payment of that hundred fifty dollar the answer but straightforward your honor that those provisions dealing with allocation of fees and costs in the first place they don't all eliminate them several of the provisions say except as ever otherwise provided by law and  with regard to those means there was either go back to the statutory default or if there isn't a statutory default it would be up to the arbitrator you say leave it up to the arbitrator but we have a expectations were we to sever the what i would call the discovery provision which is the provision to provide for limited discovery and more at the discretion of the arbitrator were we to say that we're unconscionable and not saying we are good if we were to sever that to the extent that the california supreme court's decision an arm of doris is is the controlling law which at least at this point continues to be we do have arguments about concepcion but our arm and doris commands is that i don't read the discovery provision to differ from that in any way or what basically what it says is here are things you get as a matter of right you get a list of witnesses you get a list of documents and for the rest of your discovery the arbitrator can control the form and the timing and the the scope so you'd assume if there's more discovery it just says you know the arbitrator like any judge can say well it's not endless why don't you do it by you know two months from today or whatever i just don't see it as being different in any way from what would happen in court you're completely correct your honor i mean the provision does provide for exchange of in from you know the names and addresses  documents that's that's directly analogous to federal rule twenty six a where you also have initial disclosures the balance of the bar the discovery provision says that it will be governed by and the the tools available under the federal rules of civil procedure subject to the arbitrator's discretion as to the form frequency and content with governments to arbitrate his discretion because it almost see the arbitrated could have carte blanche which could create a whole different set of problems yes a no your honor once again the arbitrator by this agreement which if the arbitrator varies from the agreement then the arbitration decision would be subject to big picture the arbitrator is bound of apply the applicable law so at a minimum the minimum standard that the d c are to the d c circuit or this d c circulate circuit articulated in call the sufficient discovery that the california supreme court articulated in norman doris that is the applicable law and at a minimum they arbitrator would have to comply with that and order that that minimum i would go one step further that we here our court shouldn't have a presumption that arbitrators are going to be unreasonable that they're going to begin capable to perform the challenges of the responsibility and that they're going to act reasonably under the circumstances if so if it turns out that the plaintiffs needed more discovery they needed ten depositions or seven depositions or something like that we should presume that the arbitrator will do his or her job will exercise there is another question and if a that that is baked in that would make sure that discovery is not unfairly limited that would place an undue burden on employees there's baked into california and federal law on that subject from marmont doris that at a minimum it will not unfairly limit the employee's discovery there's the arbitration agreement in that section carefully what it says is a party only has to produce what they intend to use in the arbitration it says that it's discovery otherwise it has no timing or scope or anything else this is a clause drafted by the employer's attorneys that says that the parties will give what they intend to put on trial not what the other side wants which is real discovery but what they intend to do and then any discovery as to the amount shall be in the discretion of the arbitrator of an arbitrator can that this kind of close in an arbitration agreement is unconscionable then don't you run flat on it it's steps you know and we have a rule that applies only to arbitration agreements and  can't enforce those well we may have to address that where you try to right but what we we don't think that the conception of concepcion should apply and i know that i think the spring record is going to deal with that  probably sooner than rather than later but present doesn't concepcion flatly say that when you have a state rule whether it's common law rule or statute that applies only to arbitration the federal arbitration act pre amps that in two distinction would be to say it's in the consumer context has not that point has not been necessarily apply the employment context which i think you know we could go go on about all the differences between those two contexts but here you're talking about someone's livelihood who is trying to get a job they're trying to apply well i just i just have trouble reading they are the discovery provision is you do because it's only sub section a that says the party submits its own intended list but subsection b is separate and it doesn't say anything or suggest anything about b only what the party wants to suggest that it all it presupposes that there is ordinary discovery just like in court well i i would submit that if it said employees shall be entitled to minimum discovery that the arbitrator believes is necessary to vindicate their statutory right well that would be one way to do that would be one way to do it but when you take the bottom minimum of discovery to is to allow an arbitrator under the terms of the agreement to go to zero i see i don't read it as doing that and all that's right because they're there separate sections one says you must give the list of witnesses and documents separate section says that the form and scope of discovery is to be at the discretion of the arbitrator that presupposes there is a lot of stuff not covered in any way not what you intend to give us a list and i'll leave that with a respectful disagreement only because it takes that in my opinion down when it says the arbitrator can determine the amount of discovery and it doesn't say anything about a minimum then federal district judge two that we have we have twenty six a which says here's the mandatory discovery and then it's also to provisions for in our rules but they're all subject to the order of the court at the end of a federal district judge in a case say after mandatory discovery you come to me to ask for permission before you do anything that well that would have to be a motion for good cause to be a protective order because as it is now the statute provides that you get discovery under the civil discovery rule if this also print presupposes that you get discovery and the cannot decide no discovery it doesn't say that it says form amount and frequency so what has to be some amount there has to be some form and there have to be has to be some frequency i costs now the words i have to pay the arbitrator in order to in order to get into court and i don't have to pay a judge in order to get into what i'm here for finally so tell me a case that says that that the inability complaint no fees well here's the here's the problem what we're what we're looking at here is whether or not this agreement was drafted with unconscionable terms substantively unconscionable terms that were unfair or one sided and and what this isn't even this is an attorney's fees shall be borne by the party incurring them except as otherwise provided by law by the program or in the on section thirty which is a yes man will a general grant you have a specific feat i just don't understand this once you get what you want to be able to recover fees i do the other side says you can i do so why don't we both just agree with you and so you can recover california including under the statute we brought there are one way feeds so my client loses my client does not have to pay their fees their one way fees and i work fees against your client then they will be breaking the more specific because it's as two feet so if he can ignore the law as to fees and award for that's when this says this says all attorneys fees with drafted by the employer all attorney fees shall be borne by the party incurring them except as otherwise provided by an arbitrator to say why why should we interpret this agreement to lead to that ridiculous result why shouldn't we as judge preggers and did interpret the agreement to say no no you feel ward must follow the law not the whims of the arbitrary but if if an agreement and if we say that then the arbitrator would be bound by that so what does i would submit what does or in the what is or me well to me it means if the law doesn't tell you what to do the program doesn't tell you what to do to do the arbitrator can think about it and figure it out it's in its hierarchical it starts with the law and if that doesn't answer it you go to the program and if that doesn't answer the arbitrator can think about set up here and in a decision or some sort the arbitrator couldn't go anywhere else but they're right that's correct ok but but what we end up what if the court is having with all of these provisions to rewrite or strike or sever or this you're sensibly rewriting an arbitration in your fellow part why can't we just excise the clauses that are unconscionable and lead the remainder of the arbitration agreement intact well in what i would submit that is the proper way to look at it is to take all of these provisions and included in the sliding scale analysis of the procedural and substantive a concert ability and then decide whether or not they're green is unconscionable well let me move you to another issue because i'd like your take on it as well and that has to do with how we should treat the believe that there's any agreement by the state to an arbitrary why did why isn't the state when it when it didn't respond to your notice which effectively gives you the ability to bring  monitor it we're not going to supervise it and now it turns out that the guy they let bring it has an arbitration agreement well why should they care actually they do care because they get seventy five percent of the money and they are monitoring settlements and they are attempting to use this to find their enforcement so why should they care about the forum if they've given up the right to bring it well i don't believe that they have i would submit that if they right but i think arbitration i think the law would say that it order for something to be there has to be a mutual a set and there is no mutual assent of the state of california and i think that's what judge a person was how he was reading is  well i don't think that's the holding of it i would call that dicked and i don't think that there that any court has issued a ruling stating that pago claims as a matter of poll on a representative basis on behalf of the state of california and that and that by being silent on the issue the state has there therefore waived or or given or assent my humble opinion that that's not a scenting to arbitration and i think that until the legislature amends twenty six ninety nine and says hi the claims may be arbitrated out to represent the basis but what the and i think the way that it's read in drought that it is is not assuming any alternative dispute resolution it's why do you assume that there is scenting to a person's ability not to and there's nothing that i see in there that that arbitration is a matter of contract it's not a deal this additional mally of wish though interest can be vindicated we are right that you can't waive those bag right but but you still haven't told me of the labor commissioner can be arbitrated without the assent of the labor commissioner the state would in my humble opinion be new while i think it and arbitrator's decision have a perfect ability to pursue the remedy in the form that they signed up to do so to do it in stead of california wants to show up an object they can do it but why had how does that how does the agreement become unconscionable because your clients it's not it's not wave a ball because your clients are directly affected by that but why are your clients directly affected by where it gets litigated well with respect to the arbitration  agreement it is much more difficult to vindicate the statutory rights under this arbitration all the reasons we've already articulated ok including here's a theoretical question for you could these individual also settle their private claims if they wanted to well the votes yes or no question can they settle them the law says they can ok so if they can settle them and have no forum at all and maybe give away part of the state's opportunity to collect a hundred percent why i don't see it theoretically why this is any more onerous on behalf of the state when they give you permission to pursue the claims as you see that they don't have to get approved they don't approve it why do well there might be vindicated if you go into it or betrays you settle their pocket claim you give them notice they have the ability to come in and say no right they get notice and they can come in and standing of timelines to participate and arbitration if that is what turns out to be the case what we brought wasn't that the clarity relief claimed we didn't bring the wage claims public work should be resolved by the court and that and that they're not technically a party to the arbitration agreement because the agreement do you think that to say so let's assume that we order your individual clients or betray should you think your clients get to arbitra claim against neighbors about whether they're entitled to prevailing wages because this isn't a public project but the court at the same time we're making be making a separate determination between your clients and tidelands in the city about whether they're subject to the prevailing wage statute we would ask the court to bifurcate it to determine the declaratory relief issue first and then determine whether or not the this is a legal it's a legal issue so to determine whether or not the project is a public prevail on that cause of action that's correct and but and so the way we have approached this was we didn't we thought that the arbitration agreement was unconscionable and therefore we should bifurcated could i make one point on the on the procedural in country to belittle but i think it's critical the plaintiffs have to agree to the arbitration agreement as a condition of applying for employment not as a condition of employment and  that one page that first page that they have to sign when they apply says the agreement may be they may be available for you but it's not presented to them and and so my argument  when you look at it from that context it's actually very high procedural in concert ability thank you can based on how each of you have that judge graber cited supports this position secondarily with regard to the paga question which has been kwaito point of discussion today it's a very dynamic area of the law there has been a lot of  as well as you know certain other projects that are going on there the issue involving neighbors is a very small subset it is a small subset of that entire thing so whether and to what extent the work that neighbors was doing  that was on a public work or not will be an issue that will impact the claims against neighbors and it is a very smaller subset about the of the entire contract made of resolve whether or work on the project that's that that's completely right your honor but the point is is versus key bank as well as the u s supreme court's decision in retreat financial versus randolph both of those cases determined that if there was no cost provision at all that the agreements nevertheless would be enforceable where especially there's no evidence that the costs will be so for him but it does to prevent the plaintiffs to the decay there i so we believe that the the the the cost issue although it can be several although it can be