Filed 1/2/15 Guzman v. Top F inance CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

JOSE GUZMAN,
Plaintiff and Respondent,

v.

TOP FINANC E CO. et al.
, Defendant and Appellant. B252068
(Los Angeles County Super. Ct. No. BC497748)

APPEAL from an order of the Super ior Court of Los Angeles County. Kenneth R. Freeman, Judge. Reversed.

Foell & Elder, and William N. Elder Jr. for Defendant and Appellant.

Law Offices of Robert B. Mobasseri, Robert B. Mobasseri and Amy L. Hajduk for Plaintiff and Respondent.

____________________________________2

Top Finance Company, Inc. appeals from the trial court’s denial of its motion to compel arbitration

. Because we find the contract was not unconscionable, we reverse.
FACTS On December 19, 2012, Jose Guzman filed a complaint, alleging fraud and the violation of various consumer protection laws in conne ction with his purc hase of a 2005 Volkswagen Toureg from 605 Auto. Guzman alleged he saw the car advertised as a certified pre

- owned car for $14,99 5 with 12.99 percent APR financin g . When Guzman and his wife went to see the car, they were informed they did not qualify for the advertised price and finance rate due to their poor credit. They negotiated a sales price of $15,995 with an APR of 23. 99 percent and a $3,000 down payment. The Guzmans signed a retail installment sales contract , which contained an arbitration clause . Soon after their purchase, the Guzmans began to experience difficulty with the car. The middle rear seatbelt was not functional and various warning lights became illuminated. Guzman’s wife experienced trouble with the brakes and sudden acceleration wh ile driving on the freeway . O n a sepa rate occasion, she crashed into a neighbor ’ s gate when
the brakes failed. Guzman further alleged the car did not comply with California’s smog and safety pre

- sale requirements. Guzman attempted to have the car repair ed multiple
times under the 30 day warranty with no success

. The complaint alleged individual claims as well as class claims on behalf of : 1) persons who purchased a certified pre

- owned vehicle from 605 Auto without receiving a completed inspection rep ort indicating all the components inspected; 2) persons who purchased a vehicle from 605 Auto who paid a price h igher than that advertised; 3) persons who purchased a vehicle from 605 Auto who received a warranty different
from that advertised. 605 Auto a ssigned the sales contract to Top Finance on December 19, 2011. T hus, t he complaint was alleged agains t 605 Auto Sales, Top Finance Co., Travelers Casualty and Surety Company of America, and the three individuals involved in selling the car to the Guzmans

.3

Top Finance filed a petition to compel arbitration on July 26, 2013. 605 Auto and the individually named defendants joined in Top Finance’s petition to compel. Travelers opposed arbitration on the ground it wa s not a party to the sales contract. I t alleged it s sole involvement in the transaction arose from issuing a surety bond for $50,000 on
behalf of 605 Auto Sales. After extensive briefing and oral argument, t he trial court denied Top Finance’s petition

. The trial court found th e arbitration a greement was procedurally unconscionable because the provision was presented on a “take it or leave it” basis with no opportunity for Guzma n to negotiate the provision ; Guzman had no meaningful choice. The trial court also found the fee arrangement in the arbitration provision to be substantive ly unconscionab le because no fee waiver was allowed and fees were reimbursed at the arbitrator’s discretion. A ddition ally, there wa s no provision requiring a written decision from the arbitrator or any reference to the rules applicable to
the arbitration , including discovery rights. The trial court also found problematic the provision relating to an appeal to a three judge panel because there wa s no indication that was even allowed by the arbitration association

. I t also found inadequate mutuality because the arbitration provision allowed Top Finance to retain its rights to self

- help remedies, including repossession , while buyers were forced to surrender their rights to recovery through the courts. Top Finance time ly appealed

. DISCUSSION On appeal, Top Finance challenges the trial court’s findings regarding the enforceability of the arbitration clause. Top Financ e contends the trial court took an overly hostile view of arbitration agreements by applying an “entir ely different and improperly stringent test to find arbitration agreements unconscionable which is not applied to other contracts.” We disagree. The trial court applied the correct test to determine unconscionability. However, we conclude the contract i s not sufficiently substantively unconscionable to render it unenforceable . Thus , we reverse the trial court’s denial of the motion to compel arbitration.4

I. The Arbitration Clause The sales contract is printed on a single sheet of paper 1 with text o n both sides of the page

. The buyer signs in eight places on the front page. Above the last signature line
is this statement in all capital letters and in bold

- faced type : “You agree to the terms of this contract. You confirm that before you signed thi s contract, we gave it to you, and you were free to take it and review it. You acknowledge that you have read both sides of this contract, including the arbitration clause on the reverse side, before signing below. You confirm that you received a complet ely filled

- in copy when you signed it. ” T he font
size in the box is not noticeably bigger than the text surrounding it, most of which is also
in bold and some of which is italicized. The back page of the contract is also dense with

text . The buyer is no t required to sign the back page. It contains a number of standard contract terms, such as provisions relating to late payment, seller’s right to cancel, warranties, finance charges and payments, and claims procedures. Some of these provisions are outlin ed by a box, including the arbitration clause, which is located at the bottom of the page. It reads:

1 The contract is form no. 553

- CA

- ARB (Rev. 1/10), printed by the Reynolds and Reynold s Company, and is apparently commonly used by car dealers. It is described in other decisions involving car dealers and manufacturers to be approximately 26 inches long. Numerous opinions address the enforceability of the arbitration clause found in form no. 553

- CA

- ARB. These cases are currently before the California Supreme Court and include: Vargas v. SAI Monrovia B., Inc. (2013) 216 Cal.App.4 th 1269, review granted Aug. 21, 2013, No. S212033; Vasquez v. Greene Motors, Inc. (2013) 214 Cal.App.4 th 117 2, review granted June 26, 2013, No. S210439; Natalini v. Import Motors, Inc. (2013) 213 Cal

. App.4th 587, review granted May 1, 2013, No. S209324; Flores v. West Covina Auto Group, LLC (2013) 212 Cal.App.4 th 895, review granted A ug. 27, 2014 , No. S208716; Goodridge v. KDF Automotive Group, Inc. (2012) 209 Cal.App.4 th 325, review granted December 19, 2012, No. S206153. The California Supreme Court has suspended briefing on each of these cases pending a decision in Sanchez v. Valencia Holding Co
., LLC (2011 ) 201 Cal.App.4 th 74, review granted March 21, 2012, No. S199119.5 “ ARBITRATION CLAUSE

“ PLEASE REVIEW

– IMPORTANT

– AFFECTS YOUR LEGAL
RIGHTS

“ 1. EITHER YOU OR WE MAY CHOOSE TO HAVE ANY DISPUTE
BETWEEN US DECIDED B Y ARBITRATION AND NOT IN COURT
OR BY JURY TRIAL.

“ 2. IF A DISPUTE IS ARBITRATED, YOU WILL GIVE UP YOUR
RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR
CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE
AGAINST US INCLUDING AN Y RIGHT TO CLASS ARBITRATION
OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS.

“ 3. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND
OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT
MAY NOT BE AVAILABLE IN ARBITRATION.

“ Any claim or dispute, whet her in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Clause, and the arbitrability of the claim or dispute), between you and us or our employees, agents, successors or assigns, which arises out of or relat es to your credit application, purchase or condition of this vehicle, this contract or any resulting transaction or relationship (including any such relationship with third parties who do not sign this contract) shall, at your or our election, be
resolved by neutral, binding arbitration and not by a court action. If federal law provides that a claim or dispute is not subject to binding arbitration, this Arbitration Clause shall not apply to such claim or dispute. Any claim or dispute is to be arbitrated b y a single arbitrator on an individual basis and not as a class action. You expressly waive any right you may have to arbitrate a class action. You may choose one of the following arbitration organizations and its applicable rules: the National Arbitrat ion Forum, Box6

50191, Minneapolis, MN 55405

- 0191 ( www.arbforum.com ), the American
Arbitration Assoc i ation, 335 Madison Ave, Floor 10, New York, NY
10017

- 4605 ( www.adr.org ), or any other organization that you may choose subject to our approval. You may ge t a copy of the rules of these organizations by contacting the arbitration organization or visiting its
website.

“ Arbitrators shall be attorneys or retired judges and shall be selected pursuant to the applicable rules. The arbitrator shall apply governin g substantive law in making an award. The arbitration hearing shall be conducted in the federal district in which you reside unless the Creditor

Seller is a party to the claim or dispute, in which case the hearing will be
held in the federal district wher e this contract was executed. We will advance your filing, administration, service or case management fee and your arbitrator or hearing fee all up to a maximum of $2500, which may be reimbursed by decision of the arbitrator at the arbitrator’s discretion . Each party shall be responsible for its own attorney, expert and other fees, unless awarded by the arbitrator under applicable law. If the chosen arbitration organization’s rules conflict with this Arbitration Clause, then the provisions of this Arbitr ation Clause shall control. The arbitrator’s award shall be final and binding on all parties, except that in the event the arbitrator’s award for a party is $0 or against a party is in excess of $100,000, or includes an award of injunctive relief against a party, that party may request a new arbitration under the rules of the arbitration organization by a three

- arbitrator panel. The appealing party requesting new arbitration shall be responsible for the filing fee and other arbitration costs subject to a final determination by the arbitrators of a fair apportionment of costs. Any arbitration under this Arbitration Clause shall be governed by the Federal Arbitration Act (9 U.S.C. § 1 et. seq.) and not by any state law concerning arbitration.7 “ You and we r etain any rights to self

- help remedies, such as repossession. You and we retain the right to seek remedies in small claims court for disputes or claims within the court’s jurisdiction, unless such action is transferred, removed or appealed in a different court. Neither you nor we waive the right to arbitrate by using self

- help remedies or filing suit. Any court having jurisdiction may enter judgment on the arbitrator’s award. This Arbitration Clause shall survive any termination, payoff or transfer of

t his contract. If any part of this Arbitration Clause, other than waivers of class action rights, is deemed or found to be unenforceable for any reason, the remainder shall remain enforceable. If a waiver of class action rights is
deemed or found to be un enforceable for any reason in a case in which class action allegations have been made, the remainder of this Arbitration
Clause shall be unenforceable. ”
II. The Law Regarding Enforceability of Arbitration Agreements
Both federal and California law expre ss a strong public policy preference for
arbitration. ( Moses H. Cone Memorial Hospital v. Mercury Construction Corp

. (1983) 460 U.S. 1, 24

- 25; Moncharsh v. Heily & Blase (1992) 3 Cal.4 th 1, 9 .) Thus, a ny doubt regarding the enforceabil ity of an arbitrati on agreement is generally resolved in favor of
arbitration. ( Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 686.) However, standard contract defenses still apply to invalidate an arbitration agreement. (

AT&T Mobility LLC v. Concepcion (2011) 131 S.Ct. 1740, 1746 ( Concepcion ).) The FAA makes clear that arbitration agreements are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (9 U.S.C. § 2 .) California Code of Civil Procedure, section 1281 similarly provides: “A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for t he revocation of any contract.” Accordingly, unconscionability remains a valid defense to a petition to compel arbitration, along with other contract
defenses such as fraud , mistake, or duress. ( Concepcion, supra, 131 S.Ct. at p. 1746.)8

Top Finance ackn owledges that an arbitration clause may be unenforceable under the
FAA if it is found to be unconscionable. The unconscionability doctrine seeks to invalidate contracts which are “unreasonably favorable to the more powerful party” (8 Williston on Cont racts (4th ed. 2010) § 18:10, p. 91). To that end
, contracts, particularly contracts of adhesion, may not impose terms that are “ overly harsh
, ” “unduly oppressive
, ” “so one

- sided as to ‘shock the conscience, ’” or “unfairly one

- sided

. ” ( Sonic

- Calabasas A , Inc. v. Moreno (2013) 57 Cal.4th 1109, 1145
, citations omitted

. ) A court applying the unconscionability doctrine
must determine whether both procedural and substantive unconscionability exist in the agreement

. These elements are applied on a sliding sc ale: “the 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.” ( Armendari z v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114.) “Unconscionability is ultimately a question of law, which we review de novo when no meaningful factual disputes exist as to the evidence. [ Citation. ] We review the

court ’ s resolution of disputed facts for substantial evidence

. [ Citation. ] When the trial court makes no express findings, we infer that it made every implied factual finding necessary to support its order and review those implied findings for substantial evidence. [ Citation. ] ” ( Chin v. Advanced Fresh Concepts Fr anchise Corp. (2011) 194 Cal.App.4th 704, 708 ( Chin ) .) “ ‘ [W]here an unconscionability determination “ is based upon the trial

court ’ s resolution of conflicts in the evidence, or on the factual inferences which may
be drawn therefrom, we consider the evide nce in the light most favorable to the court ’ s determination and review those aspects of the determination for substantial
evidence. ”

. . . [Citation s .] ’ ” ( Ontiveros v. DHL Express (USA), Inc . (2008)
164 Cal.Ap p.4th 494 , 502 .)
II I

. Procedural Unconsc ionability “The procedural element addresses the circumstances of contract negotiation and formation, focusing on oppression or surprise due to unequal bargaining power.” ( Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 559

Cal .4th 223, 246 ( Pinnacle ) .) “ ‘ “Oppression occurs where a contract involves lack of negotiation and meaningful choice, surprise where the allegedly unconscionable provision is hidden within a prolix printed form.” ’ ” ( Id. at p. 247.) Even in adhesion contracts, courts will enforce provisions that are conspicuous, plain, and clear, and that do not “operate to defeat the reasonable expectations of the parties.” ( Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 710 .) Here, the trial court fou nd that Guzman was presented with a take

- it

- or

- leave

- it proposition and lacked any meaningful choice , fulfilling the oppression prong of procedural unconscionability . It further found the arbitration agreement was written in
small font on the back of the agreement and at the very end of the contract, which it
determined were c haracteristics indicative of surprise.
As a preliminary matter, we note the trial court failed to ci te to any evidence in the
record to support a finding of oppression , appearing to rely only on the allegations in the complaint and on the con tract . Allegations contained in an unverified complaint are not evidence. (See Code Civ. Proc., § 128.7, subd. (b)(3).) While the sales contract is pre

printed and standardized, that
, by its elf, does not prove Guzman was presented with a
take

- it

- or

- leave

- it contract. “ To describe a contract as adhesive in character is not to
indicate it s legal effect. It is, rather, ‘ the beginning and not the end of the analysis insofar
as enforceabilit y of its terms is concerned.’ [ Citation. ] Thus, a contract of adhesion is fully enfor ceable according to its terms [ citations ] unless certain other factors are present which, under establish ed legal rules

– legislative or judicial

– operate to render it
othe rwise. ” ( Graham v. Scissor

- Tail, Inc. (1981) 28 Cal.3d 807, 819

- 820 , fns. omitted ; see also Peng v. First Republic Bank (2013) 219 Cal.App.4 th 1462, 1470 [use of nonnegotiable contract, standing alone, insufficient to support a finding of procedural

uncon scionability]

. )
The record does not include a declaration or other evidence to establish Guzman lacked any meaningful choice. The only declarations contained in the record are ones by counsel for Top Finance and its custodian of records. Further, Top Finance opted not to include the reporter’s transcript in this record and thus, we are unable to determine if any10

evidence was presented at the hearing. It, however, is Guzman’s burden to prove any defense to enforcement of the arbitration provision. ( Ch in , supra, 194 Cal.App.4 th at

p. 708 .) Guzman has not identified any evidence of oppression other than by citation to the terms of the contract. Even if we accept the trial court’s finding that the arbitration clause was oppressive, though, w e find the arbitration provision lacking in s urprise. A rbitration is
and has been a common means of dispute resolution and an arbitration provision in a

consumer contract cannot fairly be said to defeat the reasonable expectations of

consumers. ( Patterson v. ITT C onsumer Financial Corp. (1993) 14 Cal.App.4th 16 59,
1665 [recognizing arbitration is within the reasonable expectati on of most consumers].) In evaluating the contract, t he arbitration clause cannot fairly be described as hidden or inconspicuous within a p rolix form. 2 There is no contention that it does not conform to state law, which requires at least 6

- point type. (Civ. Code, § 2981.9 [“ Every conditional sale contract subject to this chapter shall be in writing and, if printed, shall be printed in type no smaller than 6

- point, and shall contain in a single document all of the agreements of the buyer and seller with respect to the total cost and the terms of payment for the motor vehicle, including any promissory notes or any other evidences of indebtedne ss ”].) The contract itself is only one page with two sides. The form points out the existence of
the arbitration clause on the front side i n all capital letters, above the signature line for the buyer. The arbitration clause is also highlighted on the b ack in that it is outlined with a
la rge box, by far the largest of the three boxed

- in provisions on the page. The provision ’ s boldface, all capital heading further highlights it. Surprise is also lacking in that Guzman
does not contend he was denied an op portunity to read the contract before signing it.

2 Because a copy of the contract is contained in the record, there is no meaningful factual dispute as to its placement, size, and depiction relative to the entire contract. Thus, we revie w the arbitration clause de novo.11

IV. Substantive Unconscionability Given the lack of surprise and a ssuming some amount of oppression , the arbitration clause contains, at most, a low degree of procedural unconscionability.
Under t he sliding scale articulated in Armendariz
, a substantial degree o f substantive unconscionability would be required to defeat enforcement of the clause

. ( Armendariz,

supra , 24 Cal.4th at p. 114.) “Substantive unconscionability pertains to the fairness of an agreement ’ s actual terms and to assessments of whether they are overly harsh or one

sided. [Citations.] 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, supra , 55 Cal.4th at p. 246.) Guzman argues the trial court’s finding of substantive unconscionability should not be disturbed because Top Finance cannot attack the trial court’s order by raising new
factual and le gal issues on appeal. In short, Guzman contends Top Finance has forfeit ed
this is sue as well. Not so. Top Finance addressed whether the arbitration agreement was
unconscionable in its motion to compel arbitration , anticipating Guzman’s opposition

. That is sufficient for our purposes. To the extent Top Finance introduces facts outside of the record, we will disregard those facts. Following argument and briefing , the trial court found substantive unconscionability was presen t because : 1) there was no p rovision requiring a written decision from the arbitrator; 2) there was no reference to any discovery rights ; 3) there was no reference to the rules of the arbitral forum to be used; 4) the arbitration fee provisions were problematic ; 5) there was no provi sion for a n appeal to a three

- judge panel; and 6) there was no mutuality of remedies. We conclude none of these provisions
are sufficient to r ender the arbitration provision substantively unconscionable

. A

. Absence of Provisions Re quiring a Written Deci sion and Discovery Rights
The trial court found the absence of a provision requiring a written decision or one referencing discovery rights to be indicative of substantive unconscionability. Th e absence of these provisions is not overly harsh

. N othing i n the arbitration clause

prec ludes a written decision or discovery during the arbitration

. Indeed, Code of Civil12

Procedure section 1283.4 requires the award to be in writing. As a result, “ the a bsence 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.” ( Sanchez v. Western Pizza Enterprises, Inc. (2009) 172 Cal.App.4th 154, 177 , discussed o n a different issue in Iskanian v. CLS Transpor t ation Los Angeles, LLC (2014) 59 Cal.4th 348, 366.)
B . Rules of Arbitration Under the arbitration clause, a buyer has the choice of conducting the arbitration
with the National Arbitration Forum (NAF) , th e American Arbitration Association (AAA) , or “any other organization that [ buyer ] may choose subject to [ seller’s ] approval.” The buye r is then directed to “get a copy of the rules of these organizations by contacting the arbitration organization or visit ing its website.” The websites of the NAF
and AAA are listed in th e provision. The trial court found unconscionable the provision’s failure to reference the rules of the se arbitra tion organizations

. Under these circumstances, we fail to see how this is substantively
unconscionable. The arbitration provision allows the buyer a choice of arbitral forums, including ones whi ch are not listed. It further references the rules for the NAF and AAA by directing the buyer to those organizations’ websites. Gi ven the widespread availability of the internet, this contract term does not “shock the conscience,” particularly when the buyer can choose a forum other than the NAF or AAA. Fur ther,
there is no indication the rules of the NAF or the AAA are themselve s s ubstantively
unconscionable. T he mere act of referencing the rules of an arbitral organization by directing a buyer to a website is in sufficient to sustain a finding of substantive unconscionability. ( See Lane v. Francis Capital Management LLC (2014) 224 Cal.App.4th 676, 692 [permissible to incorporate by reference AAA rules].)
1 . Arbitration Fees
The trial court next t ook issue with the apporti onment of fees between the parti es. The arbitration clause provides that the seller will advance “[the buyer ’ s ] filing, administration, service or case management fee and [the buyer ’ s ] arbitrator or hearing fee13

all up to a maximum of $2500, which may be reimbursed by decision of t he arbitrator at the arbitrator’ s discretion.” E ach party is responsible for his or her own attorney, expert, and other fees, unless awarded by the arbitrator under applicable law.
The trial court found this cost provi sion to be unconscionable because “[a]ssuming arguendo that the cost of the arbitration exceeds $2,500, and the Plaint iff were to prevail, then Plaintiff would not necessarily be reimbursed for the arbitration costs exceeding that amount. There is no way of determining how much these arbitration fees would be. Moreover, there is no potential for a fee waiver under the te rms of the arbitration provision, as is allowed for indigent plaintiffs for cases filed in court.” We do not agree that the provision is unduly harsh and one sided. In shifting the first $2,500 of costs to the seller , the provision helps buyers. That b uyers may be responsible for their own costs above that amount does not seem unfair on its face

. A “determination that arbitral fees in consumer cases are unreasonable should be made on a

case

- by

- case basis, with the consumer carrying the burden of proof. ” ( Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77, 97 ( Gutierrez ) .) In Gutierrez , the plaintiffs presented substantial evidence in the trial court that the arbitration administrative fees they would be required to pay exceeded their ability to pay

. ( Id. at pp. 90

- 91.) They provided the court with a copy of the AAA rules in effect at the time the defendants moved to compel arbitration and a declaration from a AAA administrator describing how
costs were to be calculated under those rules. In addit ion, the plaintiffs submitted a declaration setting forth their income, expenses, and savings to show that the required fees exceeded their ability to pay. ( Ibid .) The plaintiffs ’ arbitration agreement provided no effective procedure for them to obtain a fee waiver or reduction. ( Id . at p. 91.) Here, the re is no evidence , much less substantial evidence, that the arbitration fees
would be prohibitively high. It is telling that the trial court noted “[t]here is no way of determining how much these arbi tration fees would be. ” Gutierrez ably illustrates how to prove whether arbitration fees a re unduly harsh or one sided. The trial court’s comment suggests no evidence was presented on this issue.14

As to the trial court’s remark that there is no potentia l for a fee waiver for indigent parties, Code of Civil Procedure section 1284.3, subdivision (b)(1) requires all fees and costs charged upon a consumer by a private arbitration company, exclusive of arbitrator fees, to be waived for an indigent consumer. Given the arbitration provision’s silence on this subject, subdivision (b) is implied as part of the contract. ( See Sanchez v. Western Pizza Enterprises, Inc. , supra, 172 Cal.App.4 th at p. 177 .) We note also that the provision
for initial roun d costs does not on its face violate Code of Civil Procedure section 1284.3,
which prohibits nonprevailing consumers from being responsible for the opposing party's

costs. (Code Civ. Proc., § 1284.3, subd. (a).) The contractual provision does not say that buyers wil l be responsible for the seller’s costs, only the buyers ’ own costs.
2

. Appeal to a Three

- Member Panel
The trial court further found the provision allowing an appeal to a three

- member panel to be problematic as there i s nothing to indicate the rule s of the NAF or AAA permitted such appeals. We decline to find this provision unconscionable for that reason. There is no indication the NAF or AAA does not permit such appeals. Further, the arbitration clause allows the parties to agree on an arbitral forum that is not the NAF or AAA. Thus, the parties are free to select one which does allow an appe al to a three

member panel. In any case, even if we assume this provision is substantively unconscionable, it alone does not render the provision unconscio nable under the sliding
scale articulated in Armendariz.
3 . Mutuality of Remedies
The trial court devote d the majority of its ruling on this issue to a finding that the arbitration clause inadequately provided a mutuality of remedies. Under the arbitra tion clause, “ [t he buyer] and [the seller] retain any rights to self

- help remedies, such as repossession. [The buyer] and [the seller] retain the right to seek remedies in small claims court for dispu tes or claims within that court’ s jurisdiction, unless such action is transferred, removed or appealed to a different court. Neither [The buyer] nor [the seller] waive the right to arbitrate by using self

- help remedies or filing suit.”15

The trial court found this provision unconscionable because : “It is to tally unclear how Plaintiff would have a ‘repossession’ remedy here; it is likely that remedy would apply only to the Defendants. It also is unclear what other ‘self

- help’ remedies Plaintiff (and other consumers signing the [contract]) would have, outside of the required arbitration.” The trial court found this provision resulted in a lack of mutuality. That is, the provision exempts from arbitration the seller’ s most likely claims

– repossession of vehicles for nonpayment of vehicle loans and small clai ms su its for nonpayment

– while buyers’ claims will always fall within the arbitration cla use. We disagree

. To say this pr ovision is unduly harsh and one sided because it exempts the self

help remedy of repossession is unpersuasive. Self

- help remedies are, by definition, outside the judicial system. Top Finance ’ s right to repossess derives from the sales contract, which provides that it may repossess a vehicle if the buyer defaults. Repossession does not require court action. It would defy logic to require the dealership to invoke the quasi

-

judicial process of arbitration to accomplish something that does not normally require the judicial process. In other words, there is nothing harsh or one sided about exempting repossession from arbitration when it is exempt from the judicial process as part of the status quo. Moreover, the notion that the buyer has no corresponding self

- help remedies that would be exempt is not a consequence of the arbitration agreement. If there is a disparity in remedies, thi s is true whether the buyer is compelled to arbitration o r is free to file suit in court. The trial court found this provision analogous to the one in Abramson v. Juniper
Networks , Inc. (2004) 115 Cal.App.4 th 638. Abramson is distinguishable. There, a n employment agreement required the parties to arbitrate all claims, except those relating to trade secrets, confidential information and other intellectual property. ( Id. at p p. 664

- 665.) Thus, i t exempted from arbitration certain types of legal dispute s requiring the judicial process, not extrajudicial, self

- help remedies as in this case

. The exemption of small claims court disputes likewise does not seem unduly harsh
or one sided. The provision is neutral and applies to any party ’ s small claims di spute. Buyers could have a small claims dispute against the dealership

– for example, for the16

cost to repair a defective condition of the vehicle

— and it would be exempt from
arbitration. They benefit from this provision just as much as the dealership.
DISPOSITION The trial court’s order denying Top Finance’s motion to c ompel arbitration is reversed. Top Finance to recover its costs on appeal.

BIGELOW, P.J.
We concur:

RUBIN, J.

GRIMES, J.