This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restricti ons on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 NINA R. STRAUSBERG, 2 Plaintiff-Appellant, 3 v. No. 29,238 4 LAUREL HEALTHCARE PROVIDERS, 5 LLC, and ARBOR BROOK, LLC, d/b/a 6 ARBOR BROOK HEALTHCARE, 7 Defendants-Appellees, 8 LISA S. NOYA BURNETT, M.D. and 9 THE FOUR HUMOURS HEALTHCARE, LLC, 10 Defendants. 11 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 12 Clay P. Campbell, District Judge 13 Harvey Law Firm, LLC 14 Dusti D. Harvey 15 Jennifer J. Foote 16 Albuquerque, NM 17 for Appellant 18 Keleher & McLeod, P.A. 19 Mary Behm 20 Hari-Amrit Khalsa 212 Albuquerque, NM 1 for Appellees 2 MEMORANDUM OPINION 3 VIGIL, Judge. 4 {1} This case is before us on remand from our Supreme Court to consider “whether 5 the district court erred by granting Defendants’ motion to compel arbitration and by 6 dismissing Plaintiff’s case.” Strausberg v. Laurel Healthcare Providers, LLC 7 (Strausberg II) , 2013-NMSC-032, ¶ 59, 304 P.3d 409. Because we conclude that the 8 arbitration agreement is substantivel y unconscionable and thus unenforceable, we 9 reverse and remand. 10 I. BACKGROUND 11 {2} Despite signing a mandatory arbitration agreement prior to her admission for 12 treatment, Plaintiff Nina Strausberg brought suit against Arbor Brook Healthcare 13 nursing home and others alleging neglig ence. Defendants moved to compel 14 arbitration and to dismiss Plaintiff’s case. Plaintiff responded that the arbitration 15 agreement is unenforceable because it is procedurally and substantively 16 unconscionable. The district court granted Defendants’ motion and Plaintiff appealed. 17 We reversed, holding that the district court erroneously shifted the burden to Plaintiff 18 to prove that the arbitration agreement is unconscionable. Strausberg v. Laurel 193 Healthcare Providers, LLC (Strausberg I) , 2012-NMCA-006, ¶¶ 20-21, 269 P.3d 914, 1 rev’d by Strausberg II, 2013-NMSC-032, ¶ 3. Our Supreme Court reversed, holding 2 that because unconscionability is an affirmative defense and federal law requires 3 arbitration agreements to be treated the same as other contracts, the party asserting 4 unconscionability has the burden of proving that the contract is unenforceable. 5 Strausberg II, 2013-NMSC-032, ¶ 3. On remand, we now consider whether the 6 district court erred in granting Defendant s’ motion to compel arbitration and to 7 dismiss Plaintiff’s case, despite Plai ntiff’s procedural and substantive 8 unconscionability arguments. 9 II. DISCUSSION 10 {3} Plaintiff challenges the enforceability of the arbitration agreement, arguing that 11 “(1) the circumstances surrounding [the arbitration agreement’s] signing render it 12 procedurally unconscionable . . . ; and (2) the arbitration agreement’s reservation of 13 certain types of disputes renders it s ubstantively unconscionable[.]” Because we 14 conclude that the substantive unconscionability of the arbitration agreement is 15 apparent on its face, we do not addre ss Plaintiff’s procedural unconscionability 16 argument. See Figueroa v. THI of N.M. , 2013-NMCA-077, ¶ 23, ___ P.3d ___ 17 (“[W]here an agreement is so one-sidedthat the substantive unconscionability is 18 apparent on the face of the contract, anal ysis of the procedural unconscionability of 194 the formation of the contract is unnecessary to establish that the contract is 1 unconscionable.”). 2 {4} “We review de novo any grant of a motion to compel arbitration.” AFSCME 3 v. City of Albuquerque , 2013-NMCA-049, ¶ 7, 299 P.3d 441, cert. granted , 2013- 4 NMCERT-004, 301 P.3d 859. Similarly, “[w]e review whether a contract is 5 unconscionable as a matter of law.” Cordova v. World Fin. Corp. of N.M. , 2009- 6 NMSC-021, ¶ 11, 146 N.M. 256, 208 P.3d 901. 7 {5} “Substantive unconscionability concerns th e legality and fairness of the contract 8 terms themselves. . . . The s ubstantive analysis focuses on such issues as whether the 9 contract terms are commercially reasonable and fair, the purpose and effect of the 10 terms, the one-sidedness of the terms, and other similar public policy concerns.” Id. 11 ¶ 22. “Contract provisions that unreason ably benefit one party over another are 12 substantively unconscionable.” Id. ¶ 25. 13 {6} The arbitration agreement at issue hererequires arbitration of “any and all 14 disputes associated with this Arbitrati on Agreement and the relationship created by 15 the Admission Agreement and/or the provision of services under the Admission 16 Agreement (including, without limitation, cl ass action or similar proceedings; claims 17 for negligent care against Facility; claims against Facility or any of its employees, 18 managers or members).” The arbitrati on agreement also provides that “[the] 195 Arbitration Agreement shall not apply to disputes pertaining to collections or 1 discharge of residents.” 2 {7} Plaintiff asserts that “[t]he agreement as written requires that residents give up 3 their rights to sue in court for the vast majority of suits they could bring, while the 4 facility retains the right to pursue in court the only types of suit that it would bring 5 against the resident. As such, it is truly one-sided for the vast majority of disputes 6 between the parties, and is unenforceab le as substantively unconscionable under 7 Cordova .” See id. ¶ 32. We recently addre ssed a similar substantive 8 unconscionability argument inRuppelt v. Laurel Healthcare Providers LLC, 2013- 9 NMCA-014, ¶¶ 10-18, 293 P.3d 902 and Figueroa , 2013-NMCA-077, ¶ 30. 10 Defendants respond that the arbitration agreement is not substantively unconscionable 11 because the language in the arbitration ag reement that creates an exception to the 12 arbitration requirement is applicable to both parties. 13 {8} As with Ruppelt and Figueroa , the arbitration agreement here requires 14 arbitration of the vast majority of clai ms that would be brought by the patient while 15 excluding those disputes that would almost exclusively be pursued by the nursing 16 home. Although the exception language faciallyappears neutral, it is meaningless in 17 practice. See Ruppelt , 2013-NMCA-014, ¶ 15 (“Common sense dictates that claims 18 relating to collection of fees and discharge of residents are the types of remedies that 196 a nursing home, not its resident, is most likely to pursue.”). The availability to 1 Defendants of a choice of whether to litigate or arbitrate their cl aims where Plaintiff 2 has no such options establishes substantive unconscionability of the arbitration 3 agreement. See Figueroa , 2013-NMCA-077, ¶ 30 (“While weagree that arbitration 4 obligations do not have to becompletely equal, and that parties may freely enter into 5 reasonable agreements to exempt certain claims from arbitration, we refuse to enforce 6 an agreement where the drafter unreasonably re served the vast majo rity of his claims 7 for the courts, while subjecting the weaker party to arbitration on e ssentially all of the 8 claims that party is likely to bring.”). As a result, we conclude th at the district court 9 erred in concluding that the arb itration agreement is enforceable. 10 III. CONCLUSION 11 {9} The order of the district court is reversed. 12 {10} IT IS SO ORDERED. 13

____________ ____________________ 14 MICHAEL E. VIGIL, Judge 15

WE CONCUR: 16

_________________________________ 17 JAMES J. WECHSLER, Judge 187 _________________________________ 1 MICHAEL D. BUSTAMANTE, Judge 2