Filed 9/28/20 Cohen v. Mylife.com CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JOSEPH COHEN, etc.,

Plaintiff and Respondent,

v.

MYLIFE.COM, INC.,

Defendant and Appellant.

 D076067

 (Super. Ct. No. 37-2018-

00060911-CU-BT-CTL)

APPEAL from an order of the Superior Court of San Diego County, 

Joel R. Wohlfiel, Judge. Reversed and remanded with directions.

Morrison & Foerster, Mark C. Zebrowski, and Benjamin S. Kagel for 

Defendant and Appellant.

Schonbrun Seplow Harris & Hoffman, Helen I. Zeldes, Ben Travis, and 

Paul L. Hoffman for Plaintiff and Respondent.

This is an appeal from an order denying the renewed motion of 

defendant MyLife.com, Inc. (Defendant), to compel arbitration of the first 

amended complaint (complaint) in the underlying lawsuit filed by plaintiff 

Joseph Cohen (Plaintiff), on behalf of himself and all others similarly 
2

situated. The trial court declined to enforce the arbitration provision in the 

parties’ contract, ruling that it is void. 

Because the parties “clearly and unmistakably” agreed that the 

arbitrator, not the court, is to determine questions of arbitrability, we reverse 

and remand with directions to grant Defendant’s motion. As a result, we do 

not decide whether the arbitration provision is void, leaving that and related 

issues for the arbitrator to decide in the first instance, pursuant to the 

parties’ agreement.

I. FACTUAL AND PROCEDURAL BACKGROUND1

According to Defendant, through its website, MyLife.com, Defendant

provides online services that allow people “to understand and manage the 

information that is available in the public domain about them.” Defendant

obtains this information from third-party sources and organizes it into a 

“profile.” Anyone who conducts a “ ‘name search’ ” is able to view the 

information in a person’s profile for free; whereas those who pay a 

membership fee have access to more detailed information, as well as the 

ability to manage the information in their profiles. 

Defendant provides its services pursuant to the terms of a user 

agreement (User Agreement) that is available on the home page and 

numerous subpages of the MyLife.com website and is accessible by clicking 

on a hyperlink. Anyone who uses Defendant’s service is subject to the terms 

of the User Agreement; and, according to the terms of the User Agreement, a 

user accepts the agreement in one (or more) of three ways: accessing the 

1 In response to Plaintiff’s complaint, Defendant filed a motion to compel 

arbitration. In support of and in opposition to the motion, the parties filed 

declarations. The facts recited in the text, post, are based on the evidence 

contained in the declarations or allegations contained in the complaint.
3

MyLife.com website “in any manner”; completing the registration or signing 

in process; or subscribing to a paid membership. 

In the complaint, Plaintiff alleges generally that “Defendant places 

false and misleading incendiary information in [consumers’] profiles” that 

harms consumers’ reputations and, more specifically, that his profile 

contained such information. As a result, Plaintiff seeks “public injunctive 

relief” under the state’s Unfair Competition Law (Bus. & Prof. Code, § 17200 

et seq.) and the Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.) and 

individual relief for fraud and rescission of contract. According to his 

appellate brief, by these claims, Plaintiff wants “to stop Defendant from 

publishing false and reckless information about individuals.” 

In response to the complaint, Defendant filed a renewed motion to 

compel arbitration or, in the alternative, to stay the proceedings.2 Defendant

based the motion on an arbitration provision (Arbitration Provision) in the 

User Agreement that Plaintiff entered into with Defendant. The Arbitration 

Provision is found at section I.7. of the User Agreement and provides, in part,

that the parties “agree to arbitrate all disputes and claims arising out of or 

relating to this [User] Agreement between [Defendant] and [Plaintiff].” The 

Arbitration Provision also contains language that delegates to the arbitrator 

all issues to be decided (Delegation Clause). In part the Delegation Clause

provides: “All issues are for the arbitrator to decide, including the scope of 

this arbitration clause[.]” (Italics added.) In part, the Delegation Clause also 

incorporates the Commercial Dispute Resolution Procedures and the 

Supplementary Procedures for Consumer Related Disputes of the American 

2 The parties do not tell us anything about a prior motion to compel 

arbitration.
4

Arbitration Association (AAA Rules), which expressly give the arbitrator the 

authority to determine threshold issues of arbitrability.3 Pursuant to the 

Delegation Clause, Defendant argued to the trial court that issues of 

arbitrability are for the arbitrator, not the court, to decide. 

Plaintiff opposed the motion on the following grounds: the User 

Agreement is void; no agreement exists between the parties; the Arbitration 

Provision is invalid; the Delegation Clause does not apply to the 

determination of arbitrability (leaving that issue to the court); and the User 

Agreement is unconscionable. 

Defendant filed a reply, relying on the Delegation Clause and the 

argument that, by entering into the User Agreement—which contains the 

Delegation Clause nested within the Arbitration Provision—the parties 

3 Rule R-8 of the AAA Rules is entitled “Jurisdiction” (Rule R-8) and 

provides in relevant part: “(a) The arbitrator shall have the power to rule on 

his or her own jurisdiction, including any objections with respect to the 

existence, scope or validity of the arbitration agreement. [¶] (b) The 

arbitrator shall have the power to determine the existence or validity of a

contract of which an arbitration clause forms a part. Such an arbitration 

clause shall be treated as an agreement independent of the other terms of the

contract. A decision by the arbitrator that the contract is null and void shall

not for that reason alone render invalid the arbitration clause.” 

(<https://www.adr.org/sites/default/files/Commercial_Dispute_Resolution_Pro

cedures-Amended.pdf> [as of Sept. 28, 2020], archived at 

<https://perma.cc/2MNH-K5FN>.) 

Defendant does not cite to Rule R-8, instead relying on rule R-7 of the 

AAA’s “Commercial Arbitration Rules and Mediation Procedures.” We note 

that this rule R-7 of the Commercial Arbitration Rules and Mediation 

Procedures (also entitled “Jurisdiction”) is almost verbatim the same as 

rule R-8 of the AAA Rules, quoted in the immediately preceding paragraph. 

(<https://www.adr.org/sites/default/files/CommercialRules_Web.pdf> [as of 

Sept. 28, 2020], archived at <https://perma.cc/4BJD-ZBKM>.) 
5

agreed to have the arbitrator, not the court, determine all issues, including 

the arbitrability of Plaintiff’s claims. 

At the hearing, the court confirmed its tentative ruling and denied

Defendant’s motion. As relevant to the principal issue we decide in this 

opinion, the court concluded that because the Delegation Clause did not 

“clear[ly] and unmistakab[ly]” delegate threshold arbitrability questions to 

the arbitrator, the court was required to determine them. Following that

ruling, the court decided the issue of arbitrability, concluding that the 

Arbitration Provision was void and unenforceable because it contained 

language that contravened California public policy (i.e., the statutory right to 

public injunctive relief). (Citing McGill v. Citibank, N.A. (2017) 2 Cal. 5th 

945 and Roberts v. AT&T Mobility LLC (N.D.Cal., Mar. 14, 2018, No. 15-CV03418-EMC) 2018 WL 13173464.)

Defendant timely appealed. (Code Civ. Proc., § 1294, subd. (a).)

II. DISCUSSION

On appeal, Defendant argues that the Delegation Clause “clearly and 

unmistakably” delegates issues of arbitrability to the arbitrator and that no 

contract defenses to the Delegation Clause apply. As we explain, we agree.

There is no uniform standard for reviewing an order denying a motion 

to compel arbitration. (Lopez v. Bartlett Care Center, LLC (2019) 39 

Cal.App.5th 311, 317.) “ ‘ “ ‘ “If the court’s order is based on a decision of fact, 

then we adopt a substantial evidence standard. [Citation.] Alternatively, if 

the court’s denial rests solely on a decision of law, then a de novo standard of 

review is employed.” ’ ” ’ ” (Ibid.) “Where, as here, the language of the 

4 The court of appeals affirmed the district court’s order in an 

unpublished memorandum filed after completion of briefing in this appeal. 

(Roberts v. AT&T Mobility LLC (9th Cir. 2020) 801 Fed.Appx. 492.)
6

arbitration agreement is not in dispute and the [trial court’s] arbitrability 

determination was not based on the credibility of extrinsic evidence, the 

applicable standard [of review] is de novo.” (Harshad & Nasir Corp. v. Global 

Sign Systems, Inc. (2017) 14 Cal.App.5th 523, 543-544.)

The party seeking arbitration (here, Defendant) bears the burden of 

proving the existence of an arbitration agreement, whereas the party seeking 

to avoid arbitration (here, Plaintiff) bears the burden of establishing a 

defense to its enforcement. (Pinnacle Museum Tower Assn. v. Pinnacle 

Market Development (US), LLC (2012) 55 Cal.4th 223, 236 (Pinnacle); 

Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 890 (Aanderud).) 

A. The Federal Arbitration Act, not the California Arbitration Act, Applies

As a preliminary issue, we must determine whether the Federal 

Arbitration Act (FAA; 9 U.S.C. § 1 et seq.) or the California Arbitration Act 

(Code Civ. Proc., § 1280 et seq.) applies to the issues on appeal. 

Plaintiff contends that the state act applies because, pursuant to 

section II.16. of the User Agreement,5 the parties agreed that the User 

Agreement “is governed by the laws of the State of California, U.S.A., without 

regard to its conflicts of law provisions.” Defendant, by contrast, contends 

that the FAA applies because the User Agreement governs internet or online 

services, which involve interstate commerce.6 Defendant has the better 

position.

5 Section II.16. is part of the User Agreement’s terms of service for 

subscription (also known as premium) membership. 

6 In its order denying Defendant’s motion, the trial court cited evidence 

and expressly found that “Defendant is in the business of facilitating internet 

related searches of individual background information” and that “Defendant’s 
7

“ ‘The FAA applies when the contract [containing the arbitration 

provision] “evidences a transaction involving interstate commerce.” ’ ” 

(Philadelphia Indemnity Ins. Co. v. SMG Holdings, Inc. (2019) 44 

Cal.App.5th 834, 840.) In this context, “the word ‘involving’ is broad and is 

indeed the functional equivalent of ‘affecting’ ” interstate commerce. (AlliedBruce Terminix Companies, Inc. v. Dobson (1995) 513 U.S. 265, 273-274.) 

Because “use of the internet is intimately related to interstate commerce” 

(United States v. Sutcliffe (9th Cir. 2007) 505 F.3d 944, 952), Defendant’s 

online services provided over the internet, through the MyLife.com website 

and User Agreement, involve or affect interstate commerce. Therefore, the 

FAA applies. (Philadelphia Indemnity Ins. Co., at p. 840; see 9 U.S.C. § 2.)

Plaintiff’s reliance on a general choice of law provision (User 

Agreement, § II.16.) in an application of the Arbitration Provision (User 

Agreement, § I.7.) is misplaced. First, to the extent California law would 

contradict the parties’ agreement “to arbitrate all disputes and claims” here, 

“a general choice-of-law clause within an arbitration provision does not 

trump the presumption that the FAA supplies the rules for arbitration.” 

(Sovak v. Chugai Pharmaceutical Co. (9th Cir. 2002) 280 F.3d 1266, 1270; 

accord, Aviation Data, Inc. v. American Express Travel Related Services Co., 

Inc. (2007) 152 Cal.App.4th 1522, 1535.) For this reason, “we will interpret 

the choice-of-law clause as simply supplying state substantive, decisional law, 

and not state law rules for arbitration.” (Sovak, at p. 1270.)

Because the authorities on which Plaintiff relies are materially 

distinguishable, he does not convince us otherwise. In both Volt Info. 

Sciences v. Leland Stanford Jr. U. (1989) 489 U.S. 468 and Mastick v. TD 

business operations are interstate in nature[.]” This finding is supported by 

substantial evidence, and Plaintiff does not challenge it in any event. 
8

Ameritrade, Inc. (2012) 209 Cal.App.4th 1258, California law was applied 

because there were parties to the litigation that were not parties to the 

contract containing the arbitration provision. (Volt, at pp. 475-477; Mastick, 

at p. 1264.) Here, both parties to the litigation are parties to the User 

Agreement, which contains the Arbitration Provision.

B. The Delegation Clause, by Which the Arbitrator Determines Threshold 

Issues of Arbitrability, is Enforceable 

“A written provision in . . . a contract evidencing a transaction 

involving commerce to settle by arbitration a controversy thereafter arising 

out of such contract . . . shall be 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.) This statute “is a congressional declaration of a 

liberal federal policy favoring arbitration agreements, notwithstanding any 

state substantive or procedural policies to the contrary.” (Moses H. Cone 

Memorial Hosp. v. Mercury Constr. Corp. (1983) 460 U.S. 1, 24 (Moses H. 

Cone); accord, AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339 

(Concepcion).) “California law, like federal law, favors enforcement of valid 

arbitration agreements.” (Armendariz v. Foundation Health Psychcare 

Services, Inc. (2000) 24 Cal.4th 83, 97 (Armendariz), abrogated in part on 

another ground in Concepcion, at pp. 339-340; accord, Aanderud, supra, 13 

Cal.App.5th at p. 889.) 

As a result of this “ ‘strong public policy in favor of arbitration[,] . . .

any doubts regarding the arbitrability of a dispute are resolved in favor of 

arbitration.’ ” (Aanderud, supra, 13 Cal.App.5th at p. 890; accord, Moses H. 

Cone, supra, 461 U.S. at pp. 24-25 [the FAA “establishes that, as a matter of 

federal law, any doubts concerning the scope of arbitrable issues should be 

resolved in favor of arbitration”].) This policy does not come into play, 

however, until after a court has found the parties agreed to arbitrate their 
9

dispute. (Metters v. Ralphs Grocery Co. (2008) 161 Cal.App.4th 696, 701

(Metters).) That is because “ ‘ “[t]here is no public policy favoring arbitration 

of disputes which the parties have not agreed to arbitrate.” ’ ” (Ibid.)

The FAA “allows parties to agree by contract that an arbitrator, rather 

than a court, will resolve threshold arbitrability questions as well as 

underlying merits disputes.” (Henry Schein, Inc. v. Archer and White Sales, 

Inc. (2019) __ U.S. __, __ [139 S.Ct. 524, 527 (Henry Schein), citing Rent-ACenter, West, Inc. v. Jackson (2010) 561 U.S. 63, 68-70 (Rent-A-Center); see 

Rent-A-Center, at pp. 69-70 [“parties can agree to arbitrate ‘gateway’ 

questions of ‘arbitrability,’ such as whether the parties have agreed to 

arbitrate or whether their agreement covers a particular controversy”]; First 

Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 943-944 (First 

Options).) In the event “the parties’ contract delegates the arbitrability 

question to an arbitrator, a court may not override the contract”; under such 

circumstances, “a court possesses no power to decide the arbitrability issue.” 

(Henry Schein, at p. __ [139 S.Ct.at p. 529].) 

If the parties dispute the threshold or gateway question of 

arbitrability—i.e., “whether their arbitration agreement applies to the 

particular dispute”—then “the question of who decides arbitrability is itself a 

question of contract.” (Henry Schein, supra, __ at p. __ [139 S.Ct.at p. 527].) 

The court determines the answer to that question. (Howsam v. Dean Witter 

Reynolds, Inc. (2002) 537 U.S. 79, 84 [courts decide “ ‘question[s] of 

arbitrability’ ”] (Howsam); see 9 U.S.C. § 4.) 

In cases subject to the FAA, when deciding whether the parties agreed 

to arbitrate a particular dispute, including arbitrability, courts “should apply 

ordinary state-law principles that govern the formation of contracts.” (First 

Options, supra, 514 U.S. at p. 944; accord, Wagner v. Stratton Oakmont, Inc.
10

(9th Cir. 1996) 83 F.3d 1046, 1049 [“We interpret the contract by applying 

general state-law principles of contract interpretation, while giving due 

regard to the federal policy in favor of arbitration by resolving ambiguities as 

to the scope of arbitration in favor of arbitration.”].) As a general rule, 

relevant state law requires the court to determine whether the parties 

objectively intended to submit the issue to arbitration. (First Options, at 

p. 944.) 

Where, as here, the issue is arbitrability, the court does not look to the 

contract as a whole; the only question is whether, under state law, the parties 

knowingly agreed to arbitrate issues of arbitrability under the contract. 

(Prima Paint Corp. v. Flood & Conklin Mfg. Co. (1967) 388 U.S. 395, 403-

404.) Challenges to the validity of the underlying contract (e.g., fraud in the 

inducement, ambiguity, lack of consideration, mutual mistake, 

unconscionability) are not considered at this stage. (Ibid.)

Where, as here, the parties’ agreement (User Agreement) contains an 

agreement to arbitrate (Arbitration Provision) that contains a term 

delegating issues of arbitrability to the arbitrator (Delegation Clause), we 

must determine whether the Delegation Clause is enforceable. (Aanderud, 

supra, 13 Cal.App.5th at p. 891.) Here, because there is no dispute about the 

existence of the Arbitration Provision, Plaintiff bears the burden of 

establishing a defense to its enforcement, including first the Delegation 

Clause. (Id. at p. 890; see Pinnacle, supra, 55 Cal.4th at p. 236.)

We defer the question of arbitrability to the arbitrator only where 

“ ‘there is clear and unmistakable evidence’ ” that the parties intended to 

delegate this determination. (Henry Schein, supra, __ U.S. at p. __ [139 S.Ct. 

at p. 531], quoting First Options, supra, 514 U.S. at p. 944; accord, Rent-ACenter, supra, 561 U.S. at p. 69, fn. 1; Howsam, supra, 537 U.S. at p. 83; 
11

Aanderud, supra, 13 Cal.App.5th at p. 893.) “The ‘clear and unmistakable’

test reflects a ‘heightened standard of proof’ that reverses the typical 

presumption in favor of the arbitration of disputes.” (Aanderud, at p. 892.) 

For a delegation clause to be enforceable, there are “ ‘two prerequisites’ ”: 

(1) “ ‘the language of the clause must be clear and unmistakable’ ”; and 

(2) “ ‘the delegation must not be revocable under state contract defenses such 

as fraud, duress, or unconscionability.’ ” (Ibid.)

1. The Language of the Delegation Clause is Clear and 

Unmistakable

The Delegation Clause at issue in this appeal provides in full: 

“The arbitration shall be governed by the Commercial 

Dispute Resolution Procedures and Supplementary 

Procedures for Consumer Related Disputes (collectively, 

‘AAA Rules’) of the American Arbitration Association 

(‘AAA’), as modified by this Agreement, and shall be

administered by the AAA. All issues are for the arbitrator 

to decide, including the scope of this arbitration clause, but 

the arbitrator is bound by the terms of this Agreement. A 

judgment upon the award entered by the arbitrator may be

entered in any court having jurisdiction thereof.”7

Plaintiff contends that, because this language “ ‘is silent regarding the 

determination of enforceability . . . , it is presumed th[e] Court determines 

the issue or arbitrability.’ ” 

Consistently, Plaintiff attempts to distinguish many of the authorities 

on which Defendant relies on the basis that, in those cases, the applicable 

provision expressly delegated to the arbitrator determinations of the 

“enforceability” or the “validity” of the arbitration agreement at issue (italics 

7 Defendant tells us that this language, contained within the Arbitration 

Provision, is the Delegation Clause “in full.” Although Plaintiff focuses on 

one sentence in particular (“All issues are for the arbitrator to decide . . . .”), 

he does not argue otherwise.
12

added). (See Aanderud, supra, 13 Cal.App.5th at p. 892 [“ ‘validity, or 

enforceability’ ”]; Malone v. Superior Court (2014) 226 Cal.App.4th 1551, 

1560 [“enforceability”]; Taylor v. Shutterfly, Inc. (N.D. Cal., Sept. 11, 2018, 

No. 18-CV-00266-BLF) 2018 WL 4334770, at *3 [“enforceability”]; Olivas v. 

Hertz Corp. (S.D. Cal. Mar. 12, 2018, No. 17-CV-01083-BAS-NLS) 2018 WL 

1306422, at *10 [“validity”].) Plaintiff’s attempt to distinguish those cases is 

misplaced, however, because there is no authority that requires an

enforceable delegation clause to affirmatively mention or to specifically 

reference or incorporate the issues of arbitrability, enforceability, or validity 

of the arbitration agreement. To the contrary, as we explained ante, for a 

delegation clause to be enforceable, the “ ‘two prerequisites’ ” are that the 

language of the clause “ ‘be clear and unmistakable’ ” and that the delegation 

not be “ ‘revocable under state contract defenses.’ ” (Aanderud, supra, 13 

Cal.App.5th at p. 892.)

By the Delegation Clause here, the parties clearly and unmistakably 

agreed to delegate to the arbitrator “[a]ll issues . . . , including the scope of 

this arbitration clause”—which necessarily includes the issue of arbitrability. 

(Italics added.) In addition, by the Delegation Clause here, the parties also 

clearly and unmistakably agreed to incorporate the AAA Rules, which 

expressly provide that the arbitrator will decide “his or her own jurisdiction, 

including any objections with respect to the existence, scope or validity of the 

arbitration agreement.”8 (Rule R-8, italics added; see fn. 3, ante.)

8 We acknowledge, as Plaintiff points out, that Rule R-8 does not 

delegate to the arbitrator exclusive authority to determine arbitrability. 

Nonetheless, it is additional evidence that, contrary to Plaintiff’s principal 

argument (and the ruling of the trial court), the Delegation Clause is not 

silent on issues related to arbitrability. It evidences the parties’ intent that 

the arbitrator, not the court, decide such issues. 
13

Plaintiff contends that the parties’ incorporation of the AAA Rules 

(and, presumably, Rule R-8 in particular) “is insufficient to establish 

delegation in consumer contracts involving at least one unsophisticated 

party.”9 (Citing Eiess v. USAA Federal Savings Bank (N.D. Cal. 2019) 404 

F.Supp.3d 1240, 1253 (Eiess).10) We express no opinion on this issue, since 

the record in this case contains no evidence, either way, regarding Plaintiff’s 

sophistication.

Plaintiff suggests that Ajamian v. CantorCO2e, L.P. (2012) 203 

Cal.App.4th 771 (Ajamian) is “instructive.” However, based on the 

differences between the parties’ agreement in Ajamian and in the present 

case, Ajamian supports the contention that the parties here clearly and 

unmistakably delegated to the arbitrator the issue of arbitrability. In 

Ajamian, the parties agreed to resolve by arbitration “[a]ny disputes, 

differences or controversies” in an employment agreement between the 

9 We infer from Plaintiff’s argument and the authorities he cites (e.g., 

Brennan v. Opus Bank (9th Cir. 2015) 796 F.3d 1125; Galilea, LLC v. AGCS 

Marine Ins. Co. (9th Cir. 2018) 879 F.3d 1052, 1062; Dream Theater, Inc. v. 

Dream Theater (2004) 124 Cal.App.4th 547) that, absent a showing of at least 

one unsophisticated party, incorporation of arbitration rules in which the 

arbitrator is delegated the responsibility of determining issues of arbitrability 

is sufficient evidence of a clear and unmistakable delegation.

10 Eiess suggests that the defendant, as the moving party, is required to 

present “evidence that [the plaintiff] possesses a heightened level of 

sophistication.” (Eiess, supra, 404 F.Supp.3d at p. 1254.) However, the 

moving party is required only to establish the existence of an arbitration 

agreement; after that, the party opposing arbitration has the burden of 

establishing a defense to any delegation clause (Pinnacle, supra, 55 Cal.4th 

at p. 236; Aanderud, supra, 13 Cal.App.5th at p. 890), which would be the 

time to present evidence of the parties’ sophistication. Plaintiff did not do so 

here.
14

plaintiff and her employer. (Id. at p. 783, italics added.) The court concluded 

that this language was ambiguous: It could cover all disputes, differences or 

controversies including arbitrability; or it could be limited to “substantive

disputes, claims or controversies.” (Id. at p. 783.) The agreement contained 

further ambiguity as to the scope of the arbitrator’s powers in that it

delegated to “a ‘court of competent jurisdiction’ ” the authority to determine 

whether a specific covenant in the agreement was impermissibly broad. (Id. 

at p. 792.) Since, under this delegation of power, the parties agreed that the 

court could limit the scope of the covenant, such an agreement was 

inconsistent with the argument that the parties intended that all disputes be 

decided by the arbitrator. (Id. at p. 793.) In contrast, here the parties agreed 

that the arbitrator would decide “[a]ll issues” without limitation—“including 

the scope of this arbitration clause.” (Italics added.)

For the foregoing reasons, the parties clearly and unmistakably agreed 

to delegate to the arbitrator all questions regarding the arbitrability of the 

User Agreement.

2. The Delegation Clause is Not Unconscionable

Even where the parties clearly and unmistakably agree to delegate 

issues of arbitrability to the arbitrator, “ ‘the delegation must not be 

revocable under state contract defenses such as . . . unconscionability.’ ” 

(Aanderud, supra, 13 Cal.App.5th at p. 892.) In this regard, Plaintiff argues 

that the Delegation Clause is “void due to the contract defense of 

unconscionability.” Plaintiff, as “the party opposing arbitration[,] bears the 

burden of proving . . . unconscionability.” (Pinnacle, supra, 55 Cal.4th at 

p. 236.)

State law applicable to contracts generally governs whether a valid 

arbitration agreement exists. (Perry v. Thomas (1987) 482 U.S. 483, 492, 

fn. 9; Metters, supra, 161 Cal.App.4th at p. 701.) As will be outcome 
15

determinative in this appeal, “[w]hen determining whether a delegation 

clause is unconscionable, any claim of unconscionability must be specific to 

the delegation clause.” (Aanderud, supra, 13 Cal.App.5th at p. 895, italics 

added; Nielsen Contracting, Inc. v. Applied Underwriters, Inc. (2018) 22 

Cal.App.5th 1096, 1109 (Nielsen Contracting) [court resolves challenge to a 

delegation clause only “when a specific contract challenge is made to the 

delegation clause”].) In Rent-A-Center, supra, 561 U.S. 63, for example, 

because, in the trial court, “none of [the] substantive unconscionability 

challenges was specific to the delegation provision,” the Supreme Court did 

not reach the merits of the argument that the arbitration provision was 

unconscionable. (Id. at pp.73, 75-76.)].) 

Thus, as potentially applicable to the contract at issue in the present 

appeal, California state law provides in relevant part: “If the court as a 

matter of law finds the . . . [Delegation C]lause of the contract to have been 

unconscionable at the time it was made the court may refuse to enforce the 

[User Agreement], or it may enforce the remainder of the [User Agreement]

without the unconscionable clause, or it may so limit the application of any 

unconscionable clause as to avoid any unconscionable result.” (Civ. Code, 

§ 1670.5, subd. (a), italics added; see Armendariz, supra, 24 Cal.4th at 

p. 114.)

“ ‘[U]nconscionability has both a “procedural” and a “substantive” 

element,’ the former focusing on ‘oppression’ or ‘surprise’ due to unequal 

bargaining power, the latter on ‘overly harsh’ or ‘one-sided’ results.” 

(Armendariz, supra, 24 Cal.4th at p. 114.) “ ‘The prevailing view is that 

[procedural and substantive unconscionability] must both be present in order 

for a court to exercise its discretion to refuse to enforce a . . . clause under the 

doctrine of unconscionability.’ ” (Ibid., italics added.) However, the two types 
16

of unconscionability “need not be present in the same degree[:] . . . [T]he 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.” (Ibid.) In application, “by the use of a sliding 

scale, a greater showing of procedural or substantive unconscionability will 

require less of a showing of the other to invalidate the claim.” (Ajamian, 

supra, 203 Cal.App.4th at p. 795.) 

Here, with regard to substantive unconscionability, Plaintiff relies on 

the following two arguments:

• “the provisions in the User Agreement [A]rbitration [P]rovision that 

deny Plaintiff a right to public injunctive relief are the exact type of 

provisions that are substantively unconscionable under California law, 

as it denies Plaintiff any forum for him to seek to enforce his statutory 

rights” (initial italics added); and

• “the User Agreement contains a clause that states in part, ‘We may

modify any of the terms and conditions contained in this [User] 

Agreement at any time in our sole discretion. The updates and all 

changes will be posted at mylife.com/user-agreement.’ ” (Italics added.) 

Since neither of these unconscionability challenges is specific to the 

Delegation Clause, however, Plaintiff has not presented for our consideration 

any claim of substantive unconscionability. (Rent-A-Center, supra, 561 U.S. 

at pp. 72 [“unless [the party opposing the delegation] challenged the 

delegation provision specifically, we must treat it as valid”], 73 [“we need not 

consider that claim because none of [the party’s] substantive 

unconscionability challenges was specific to the delegation provision”]; 

Aanderud, supra, 13 Cal.App.5th at p. 895 [“any claim of unconscionability 

must be specific to the delegation clause”]; Nielsen Contracting, supra, 22 
17

Cal.App.5th at p. 1108 [“an argument that the arbitration agreement or the 

underlying contract is unenforceable is not sufficient to trigger the court’s 

obligation to resolve contentions regarding the enforceability of a severable 

delegation clause”].) 

Plaintiff argues that, because the User Agreement (at § II.10.) grants 

Defendant the sole discretion to modify the terms and conditions of the 

agreement, the Delegation Clause (at § I.7.) is unconscionable. However, 

Plaintiff has forfeited appellate consideration of s argument, since he did not 

raise it in the trial court. (Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 

Cal.4th 1334, 1350, fn. 12 [“ ‘A party is not permitted to change his position 

and adopt a new and different theory on appeal. To permit him to do so 

would not only be unfair to the trial court, but manifestly unjust to the 

opposing litigant.’ ”].) More to the point, in Rent-A-Center, supra, 561 U.S. 

63, the party arguing that an arbitration agreement was unconscionable “did 

not contest the validity of the delegation provision in particular” until the 

appeal to the Supreme Court. (Id. at p. 74, italics added.) Because “[h]e 

brought this challenge to the delegation provision too late,” “he forfeited” it.

(Id. at pp. 75-76 & fn. 5.) 

In any event, even if we assume that the modification provision 

(§ II.10.) is unconscionable, that does not make the Delegation Clause (§ I.7.) 

unconscionable. 

In Ingle v. Circuit City Stores, Inc. (9th Cir. 2003) 328 F.3d 1165, the 

lone authority on which Plaintiff relies, the provision allowing for unilateral 

modifications by the employer was contained in the arbitration provision 

itself, and allowed the employer to “modify or terminate any and all dispute 

resolution agreements with its employees unilaterally.” (Id. at p. 1179.) In 

contrast, here, the provision allowing for unilateral modifications is contained 
18

in an entirely separate section of the User Agreement and does not mention 

the Delegation Clause. Thus, Plaintiff’s challenge is not to the

unconscionability of the Delegation Clause (§ I.7.) but rather to the 

unconscionability of the modification provision (§ II.10.). 

Moreover, “the fact that one party reserves the implied power to 

terminate or modify a unilateral contract is not fatal to its enforcement, 

if the exercise of the power is subject to limitations, such as fairness 

and reasonable notice.” (Asmus v. Pacific Bell (2000) 23 Cal.4th 1, 16 

[employment security policy].) As this requirement of fairness and 

reasonable notice applies in the context of an agreement to arbitrate 

disputes, “the unilateral right to modify the arbitration agreement[, including 

a delegation provision,] is restricted by the implied covenant of good faith and 

fair dealing.” (Serpa v. California Surety Investigations, Inc. (2013) 215 

Cal.App.4th 695, 708, fn. 7.) More specifically, pursuant to this restriction,

“implied in the unilateral right to modify [a delegation clause nested in an 

arbitration provision] is the accompanying obligation to do so upon 

reasonable and fair notice.” (Id. at p. 708.) For this reason, therefore, had we 

reached the merits of Plaintiff’s untimely argument, because “the implied 

covenant of good faith and fair dealing limits [Defendant’s] authority to 

unilaterally modify the arbitration agreement” (ibid.), we would have had 

little difficulty concluding that an application of the implied covenant to the 

modification provision (§ II.10.) would preclude the Delegation Clause (§ I.7.) 

from being substantively unconscionable on its face under California law. 

Accordingly, even without considering Plaintiff’s claim of procedural 

unconscionability, Plaintiff has not met his burden of proving that the 

Delegation Clause is unconscionable.
19

3. Conclusion

Because the language of the Delegation Clause is clear, unmistakable,

and not unconscionable, it is enforceable. (Aanderud, supra, 13 Cal.App.5th

at p. 892.) The trial court erred in concluding otherwise. 

Thus, the arbitrator shall determine all issues of arbitrability; and for 

this reason, we do not reach—and, thus, express no opinion on—Plaintiff’s 

argument that the Arbitration Provision is void. 

III. DISPOSITION

The order denying Defendant’s renewed motion to compel arbitration of 

Plaintiff’s first amended complaint is reversed. The matter is remanded with 

directions to grant the motion and to either stay or dismiss the action, as 

requested in the renewed motion. Defendant is entitled to its costs on appeal. 

(Cal. Rules of Court, rule 8.278(a)(2).)

IRION, J.

WE CONCUR:

HUFFMAN, Acting P. J.

HALLER, J.