Filed 7/1/24 Helfet v. Motive Energy CA2/1

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

ANDREW HELFET,

Plaintiff and Respondent,

v.

MOTIVE ENERGY, INC., et al.,

Defendants and Appellants.

 B331359

 (Los Angeles County

 Super. Ct. No. 22STCV37392)

APPEAL from an order of the Superior Court of 

Los Angeles County, Carolyn B. Kuhl, Judge. Reversed.

Blank Rome, Natalie R. Alameddine and Nicole N. 

Wentworth for Defendants and Appellants.

Nosratilaw, Omid Norati, Rene M. Madonado and 

Sol Nunez for Plaintiff and Respondent.
2

Appellants Motive Energy, Inc., Motive Energy 

Telecommunications Group, Inc., Motive Energy Storage 

Systems, Inc., Motive Energy, LLC, and Advanced Charging 

Technologies, Inc. (collectively, Motive), along with appellants 

Robert J. Istwan, Leonard Stein, and Larry Snegg,1 appeal from 

an order denying their motion to compel respondent Andrew 

Helfet, a former Motive employee, to arbitrate his claims against 

them. The court denied the motion on two bases: (1) that the 

defendants failed to prove the existence of an agreement to 

arbitrate, because only Helfet—and not Motive—signed the 

agreement; and (2) even if an agreement to arbitrate existed, 

it is unenforceable because it is permeated by unconscionable

provisions that cannot be severed.

We conclude the court reversibly erred in concluding 

that no agreement to arbitrate existed, and in concluding that 

the agreement contained multiple unconscionable provisions. 

The court correctly concluded that one term, which entitled the 

prevailing party in arbitration to recover its costs and attorney

fees, was unconscionable. The court, however, abused its 

discretion in concluding that the unconscionable provision could 

not be severed. Accordingly, we reverse.

1 On the few occasions that we refer to the larger group of 

defendants that comprise the appellants in the instant matter—

i.e., both the individual defendants and Motive—we use the term 

“defendants.” 
3

FACTS AND PROCEEDINGS BELOW

A. The Disputed Agreement

Helfet is a former employee of Motive, a company providing 

telecommunications services to consumers. During Helfet’s new 

employee orientation and onboarding process at Motive, company 

personnel presented Helfet with a stand-alone document entitled 

“Employee Confidentiality and Mutual Arbitration Agreement—

California” (the agreement). (Full capitalization omitted.)

The agreement states that it is between Helfet and Motive, 

referred to in the agreement as “the company.” (Capitalization 

omitted.) Section 19 of the agreement (the arbitration provision) 

is entitled “Arbitration.” It provides, inter alia: “The company 

is committed to using binding arbitration to resolve all legal 

disputes, whether initiated by the company or by an employee, 

in a forum which provides this alternative to the court system. 

As a condition of employment or continued employment of 

[Helfet], [Helfet] agrees to use the arbitration forum. The 

company’s agreement to use binding arbitration is confirmed 

by its signature below; [Helfet]’s agreement is confirmed by 

[his] signature below or by [his] acceptance or continuation of 

employment upon notice of this policy. This policy is not subject 

to unilateral modification or rescission by the company; it may 

not be modified or rescinded except by a mutual, written and 

signed further agreement by both the company and [Helfet]. 

[¶] The company and [Helfet] hereby mutually agree that any 

dispute or controversy between the parties arising from or in any 

way related to [Helfet]’s employment with the company, shall be 

submitted to and determined by binding arbitration under the 

California Arbitration Act ( . . . Code Civ. Proc.[,] § 1280 et seq.) 

(hereinafter ‘arbitration agreement’). The company and [Helfet]
4

agree, however, that an exception to the arbitration agreement 

exists for purposes of the company seeking an injunction from 

any court of competent jurisdiction to enforce this agreement 

pursuant to section 7 of this agreement.” (Capitalization 

omitted.) Section 7 is captioned “enforcement of agreements” 

and provides “that a breach or violation by [Helfet] of section[s] 5, 

6, and/or 9”—which address the “protection and ownership of” 

certain proprietary information, “raiding,” defined as recruiting 

or encouraging Motive employees to terminate their employment 

with Motive, and “inventions/intellectual property rights”—“will 

cause immediate and irreparable damage to the company which 

cannot be easily . . . quantified. (Boldface and capitalization 

omitted.) For that reason, [Helfet] agrees that the company shall 

be entitled, as a matter of right, to an injunction from any court 

of competent jurisdiction, restraining any further violation of this 

agreement. This remedy shall be in addition to any other rights 

and remedies the company may have pursuant to this agreement 

or law, including, specifically, the recovery of monetary damages, 

whether compensatory or punitive.” (Boldface & capitalization 

omitted.) We shall refer to this aspect of the arbitration provision 

as the “injunctive relief exception.”

The arbitration provision clarifies that, other than the 

injunctive relief exception, the arbitration provision “governs 

all disputes between the company and [Helfet],” and provides 

numerous, non-exhaustive examples of the types and nature 

of such possible disputes. (Capitalization omitted.) The 

arbitration provision concludes with the following statement:

“[Helfet] understands that by agreeing to this binding arbitration 

provision, both [he] and the company give up their rights to trial

by jury.” (Capitalization omitted.)
5

The agreement also contains a provision entitled “Costs 

and Attorneys’ Fees,” which provides: “In the event of any 

proceeding, arbitration, or litigation between the parties arising 

under this agreement, the prevailing party shall be entitled to 

costs and reasonable attorneys’ fees” (the fee-shifting provision).

(Capitalization omitted.) Finally, the agreement concludes 

with signature lines for both “employee” and a “Motive . . . 

representative.” (Capitalization omitted.) Helfet signed the 

agreement on May 7, 2020 as the “employee.” No one signed 

the agreement on behalf of Motive.

B. Helfet’s Lawsuit and the Defendants’ Motion 

To Compel Arbitration

On November 29, 2022, Helfet filed suit against 

defendants, both on his own behalf and purporting to represent 

similarly situated employees on a class-wide basis. The operative 

complaint in the action alleges violations of the Labor Code, the 

Investigative Consumer Reporting Agencies Act, and the Credit 

Reporting Agencies Act, and a cause of action under the Private 

Attorneys General Act. On April 28, 2023, defendants moved 

for an order dismissing the action and compelling Helfet to 

submit his claims to binding arbitration on an individual basis, 

or, alternatively, compelling all arbitrable claims into individual 

arbitration and staying the non-arbitrable claims pending 

conclusion of arbitration.

On June 28, 2023, the trial court denied the motion on 

the bases that (1) defendants had failed to prove the existence 

of an agreement to arbitrate, because Motive had not signed the 

agreement, and (2) the arbitration provision was unenforceable 

in any event, because it contained unconscionable provisions 

that could not be severed from the remainder of the agreement. 
6

Specifically, the court identified as unconscionable the injunctive 

relief exception and the fee-shifting provision.

The defendants timely appealed.

DISCUSSION

A. The Existence of an Agreement To Arbitrate

The defendants argue the trial court erred in concluding, 

based on Motive’s failure to sign the agreement, that no 

agreement to arbitrate existed. Whether a valid agreement to 

arbitrate was formed is reviewed de novo where, as here, the 

facts are not disputed.2 (Serafin v. Balco Properties Ltd., LLC

(2015) 235 Cal.App.4th 165, 173 (Serafin).)

In determining whether an unsigned document can support 

a motion to compel arbitration, “the presence or absence of a 

signature [is not] dispositive; it is the presence or absence of 

evidence of an agreement to arbitrate which matters.” (Banner 

Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 

348, 361 (Banner).) Because a signature is but one form of 

such evidence (see, e.g., id. at pp. 360–362; Serafin, supra, 235 

Cal.App.4th at p. 176), “the writing memorializing an arbitration 

agreement need not be signed by both parties in order to be 

2 Helfet contends this is a factual issue subject to 

substantial evidence review. We disagree. (See Juen v. Alain 

Pinel Realtors, Inc. (2019) 32 Cal.App.5th 972, 978 [rejecting 

substantial evidence review of the “trial court’s conclusion that 

‘ “[t]he language of the provision shows that it was contemplated 

that both the seller and the broker must agree to arbitration and 

indicate that assent by writing their initials in the appropriate 

place” ’ ” because “[t]he trial court’s ruling was based on contract 

interpretation, not on any disputed facts”], citing Romo v. Y-3 

Holdings, Inc. (2001) 87 Cal.App.4th 1153, 1158 (Romo).)
7

upheld as a binding arbitration agreement.” (Serafin, supra, 

at p. 176.) “Evidence confirming the existence of an agreement 

to arbitrate, despite an unsigned agreement, can be based, for 

example, on ‘conduct from which one could imply . . . acceptance 

of such a provision.’ ” (Ibid.) Such conduct includes: (1) the

employer having authored the written agreement and printed 

it on the employer’s letterhead (ibid.; Cruise v. Kroger Co. (2015) 

233 Cal.App.4th 390, 398 (Cruise)), (2) the employer having 

presented the agreement to the employee as part of a packet 

of onboarding materials and requiring the employee to sign it 

as a condition of employment (see Lara v. Onsite Health, Inc. 

(N.D.Cal. 2012) 896 F.Supp.2d 831, 844 (Lara) [applying 

California law, cited in Cruise, supra, at p. 399]), and (3) that

an employer-drafted agreement was “ ‘written in terms of both 

parties’ obligations.’ ” (Cruise, supra, at p. 398; see ibid. [“the 

arbitration clause declared [the employer’s] intent to be bound 

thereby” with language stating that “the company likewise 

agrees to mandatory final and binding arbitration of any covered 

disputes”], capitalization omitted.)

Here, Motive’s conduct provides strong evidence that 

Motive consented to the arbitration provision despite its failure 

to sign the agreement. Motive prepared the agreement and 

presented it to Helfet as part of his mandatory onboarding 

paperwork. (See Serafin, supra, 235 Cal.App.4th at p. 176; 

Cruise, supra, 233 Cal.App.4th at pp. 398–399; see also Lara, 

supra, 896 F.Supp.2d at p. 844.) The language of the agreement 

repeatedly refers to a mutual agreement to arbitrate all disputes 

(except those falling within the injunctive relief exception, 

a provision discussed further below) and includes several 

declarations of the company’s commitment to arbitration, to 
8

wit: “The company is committed to using binding arbitration 

to resolve all legal disputes.” “The company and [Helfet] hereby 

mutually agree that any dispute or controversy . . . shall be 

submitted to and determined by binding arbitration.” “[Helfet]

understands that by agreeing to this binding arbitration 

provision, both [Helfet] and the company give up their rights 

to trial by jury.” (Capitalization omitted & italics added.) (See 

Cruise, supra, at p. 399; see also Lara, supra, at p. 844.)

Helfet argues that this conduct does not support an 

agreement to arbitrate because the arbitration provision itself 

provides that both parties must sign in order to agree to its 

terms. In so arguing, he relies on cases establishing that “[w]hen 

it is clear . . . from a provision that the proposed written contract 

would become operative only when signed by the parties . . . 

[and/or] from any other evidence presented by the parties that 

both parties contemplated that acceptance of the contract’s terms 

would be signified by signing it, the failure to sign the agreement 

means no binding contract was created.” (Banner, supra, 62 

Cal.App.4th at p. 358, italics omitted; see Marcus & Millichap 

Real Estate Investment Brokerage Co. v. Hock Investment Co. 

(1998) 68 Cal.App.4th 83, 91 (Marcus) & Romo, supra, 87 

Cal.App.4th at p. 1160.) He argues this rule applies here based 

on the following agreement language: “The company’s agreement 

to use binding arbitration is confirmed by its signature below; 

[Helfet]’s agreement is confirmed by [Helfet]’s signature below or 

by [Helfet]’s acceptance or continuation of employment upon notice 

of this policy.” (Italics added.)

We disagree that this language precludes the company 

from assenting to the arbitration provision by some means 

other than signing the agreement. Rather, we read this to 
9

mean Motive’s signature on the broader agreement “confirm[s]”

a commitment to arbitrate that Motive attests to without 

qualification elsewhere in the document. This interpretation 

is guided not only by the specific language of the agreement—

the use of the word “confirm,” which we agree with defendants

connotes a previously established agreement—but also by the

agreement as a whole, including its multiple references to 

Motive’s commitment to arbitration, and by Motive presenting

the agreement as a non-negotiable prerequisite to employment, 

then employing Helfet after he signed it. (See Craig v. Brown

& Root, Inc. (2000) 84 Cal.App.4th 416, 420–421 [“a party’s 

acceptance of an agreement to arbitrate may be . . . [citations] . . .

implied-in-fact where, as here, the employee’s continued 

employment constitutes her acceptance of an agreement proposed 

by her employer”].)

For these reasons, we conclude that the agreement did not

require Motive’s signature as the only means of assenting to 

the arbitration provision, and that Motive’s failure to sign 

the agreement does not signify Motive did not assent to the 

arbitration provision.3

3 Helfet echoes the concerns of the trial court and argues 

that, if we conclude “ ‘an agreement had been formed, then 

employers like [the Motive] defendants . . . “could have their 

cake and eat it too.” ’ ” (Capitalization omitted.) Put differently, 

Helfet posits that an employer defendant could either force 

arbitration if the employer believed it advantageous to do so,

or refuse to arbitrate if the employer believed arbitration to

be disadvantageous. But were Motive to attempt to avoid

enforcement of the arbitration provision based on its own 

lack of signature, the reasoning which allows it to enforce the 

agreement would also prevent it from rejecting the agreement.
10

In arguing to the contrary, Helfet relies on Marcus, supra,

68 Cal.App.4th 83, and Romo, supra, 87 Cal.App.4th 1153. But 

the courts in these cases were interpreting language materially 

different from that on which Helfet relies here. The facts and 

reasoning of these cases distinguish them from this case in other

respects as well. 

Marcus involved a real estate purchase contract resulting 

from several offers and counteroffers passing back and forth 

between the buyers and sellers. (Marcus, supra, 68 Cal.App.4th 

at pp. 85, 89.) The initial offer from the buyers included a 

provision requiring arbitration that, in part, read as follows: 

“ ‘Notice: By initialing in the space below you are agreeing

to have any dispute arising out of the matters included in the 

‘Arbitration of Disputes’ provision decided by neutral arbitration 

as provided by California law and you are giving up any rights 

you might possess to have the dispute litigated in court or jury 

trial. By initialing in the space below you are giving up your 

judicial rights to discovery and appeal . . . . Your agreement to 

this arbitration provision is voluntary. [¶] We have read and 

understand the foregoing and agree to submit disputes arising 

out of the matters included in the “Arbitration of Disputes”

provision to neutral arbitration. [¶] ‘Buyer’s Initials /s/___

Seller’s Initials___.’ ” (Id. at p. 86.) “[A]lthough the buyers 

initialed the arbitration clause as part of their offer to purchase 

the property, the sellers never initialed this provision or 

otherwise indicated they accepted this provision in their 

counteroffers.” (Id. at p. 89.) The buyers later sought to compel 

arbitration based on the arbitration provision that they, but not 

the sellers, had initialed. The court first analyzed the situation 

by “[a]pplying general California contract law” principles 
11

regarding the legal effect of counteroffers, and concluded “the 

buyers [had] offered to include the arbitration provision as part 

of the purchase agreement” (italics omitted)—via the initialed 

arbitration provision in their offer—but that “the sellers did not 

accept that offer,” because they did not initial the arbitration 

provision in any counter offers, despite the arbitration clause 

requiring initials of all parties. (Ibid.) The Court of Appeal in 

Marcus noted that “[t]he terms of an offer must be ‘ “met exactly, 

precisely and unequivocally for its acceptance to result in the 

formation of a binding contract . . . ; and a qualified acceptance 

amounts to a new proposal or counteroffer putting an end to 

the original offer. . . . ” ’ [Citations.] [Because] [n]one of the 

subsequent counteroffers between the buyer and seller mentioned 

the arbitration provision[,] . . . ‘buyer, seller and agent’ did not 

agree to submit controversies to binding arbitration, as the 

arbitration clause require[d].” (Ibid., capitalization & italics 

omitted.)

As a preliminary matter, we do not consider the Marcus 

arbitration provision to be similar to the language on which 

Helfet seeks to rely. The contract in Marcus included and 

expressly referenced a space for the parties to initial and thereby 

signify their acceptance of the arbitration provision, separate 

from their agreeing to other provisions in the purchase contract. 

And the language of the arbitration provision described the 

initials of all parties in this space as creating an agreement 

to arbitrate that otherwise would not be part of the purchase 

contract. This is in stark contrast with language that, as 

discussed above, we interpret as stating the company’s signature 

confirms a commitment to arbitration already expressed in 

absolute terms.
12

It is also significant that, in Marcus, the parties could 

reject the proposed arbitration provision, yet agree to the 

purchase contract in other respects. The purchase contract 

described the arbitration provision as a “voluntary” potential 

add-on to the contract. Here, by contrast, Motive required 

Helfet to accept the agreement without change as a condition 

of employment. This is significant, because if the parties can 

only agree to all the provisions in the agreement or nothing at 

all, conduct suggesting that the agreement between the parties 

is operative necessarily implies both parties consented to all 

the provisions contained therein. And here, the parties’ conduct 

overwhelmingly signifies an operative agreement between Motive 

and Helfet: namely, Motive employed Helfet, and executing the 

agreement was a prerequisite to Motive employing Helfet.

4 (See 

Banner, supra, 62 Cal.App.4th at p. 361 [discussing cases in 

which parties had ratified unsigned agreements by repeatedly 

acknowledging their validity].)

Although the second case Helfet relies on, Romo, supra, 

87 Cal.App.4th 1153, involved an employment relationship, it is 

nonetheless distinguishable. The arbitration provision in Romo 

was one of numerous sections in a 44-page employee handbook. 

(Id. at p. 1155.) The section was “titled ‘mutual agreement to

arbitrate claims’ ” and provided that “the company and the 

employee hereby consent to the resolution by arbitration of all

claims or controversies for which a court otherwise would be 

authorized by law to grant relief.” (Ibid., capitalization omitted.) 

The final page of this section “contain[ed] lines for dates and 

4 Of course, it is undisputed that Helfet executed the 

agreement by signing it. Motive’s conduct thus need only support 

that it agreed.
13

signatures of the employee and the employer.” (Id. at p. 1156.) 

In addition, at the end of the entire handbook, under “an 

unnumbered heading titled ‘employee acknowledgment’ . . . [was]

a place for date and signature by the employee” (underscoring 

omitted) and the following language: “ ‘I acknowledge receipt 

of my copy of the handbook . . . . I have read and understood 

its contents, including company policies and rules governing 

my conduct, wages and working conditions as an employee. I 

understand that this handbook supersedes and replaces any 

prior company handbook. I agree to abide by these policies and 

rules during my employment, and understand the consequences 

if I do not.’ ” (Ibid., capitalization omitted.) The employee had

signed this acknowledgment, but neither party had signed 

the arbitration agreement section signature page. The court 

concluded, “based upon the disparate language between [the 

arbitration] section . . . and the remaining portions of the 

employee handbook” that “the employee handbook contain[ed] 

two separate and severable agreements: (1) the agreement to 

arbitrate which is the subject of [one section in the handbook]; 

and (2) an agreement to be bound by the ‘benefits,’ ‘policies,’

‘rules’ and ‘procedures’ contained within the remaining sections

of the employee handbook.” (Id. at p. 1159.) Because the

employee had not signed the separate arbitration agreement,

there could be no agreement to arbitrate.

The language in the arbitration section in Romo is 

materially different from that at issue here, because, like 

the language in Marcus, it describes that section as creating 

an agreement to arbitrate between the parties. As noted, 

the arbitration provision here does not condition Motive’s

agreement on a signature—rather, it refers to Motive’s 
14

commitment to arbitrating employee disputes, and refers 

to a Motive representative’s signature as “confirming” that 

commitment. Moreover, Romo also did not have occasion 

to consider the situation presented by this appeal: namely, 

the significance of an employer failing to sign an arbitration 

provision the employer prepared and presented to an employee.

In Romo, the issue presented was the lack of the employee’s 

signature. Helfet’s efforts to treat this fact as insignificant are

unpersuasive.

For these reasons, we conclude the court erred in finding 

Motive had failed to prove the existence of an arbitration 

agreement between them and Helfet. We therefore turn to 

the court’s alternative conclusion that any such agreement was 

unconscionable and unenforceable. 

B. Unconscionability and Severance Issues

A court may properly deny a motion to compel arbitration 

despite the existence of an arbitration agreement when the 

party seeking to avoid arbitration establishes that the agreement 

is unconscionable. (See Armendariz v. Foundation Health 

Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114 (Armendariz); 

see also Rosenthal v. Great Western Fin. Securities Corp. (1996)

14 Cal.4th 394, 413 [“[i]f the party opposing the petition [to 

compel arbitration] raises a defense to [its] enforcement . . . 

[citation] . . . that party bears the burden [of proof]”].)

“Unconscionability ‘ “ ‘refers to “ ‘an absence of meaningful 

choice on the part of one of the parties together with contract 

terms which are unreasonably favorable to the other party.’ ” 

[Citation.] As that formulation implicitly recognizes, the doctrine 

of unconscionability has both a procedural and a substantive 

element, the former focusing on oppression or surprise due to 
15

unequal bargaining power, the latter on overly harsh or one-sided 

results.’ ” ’ (Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 

1243 . . . (Baltazar).)” (Nguyen v. Applied Medical Resources 

Corp. (2016) 4 Cal.App.5th 232, 246 (Nguyen).) “Both procedural 

and substantive unconscionability must be present for the 

court to refuse to enforce a contract under the doctrine of 

unconscionability, although ‘ “they need not be present in 

the same degree.” ’ (Baltazar, supra, 62 Cal.4th at p. 1243.)”

(Nguyen, supra, at p. 247.)

Motive concedes, as it must, that the agreement is a 

contract of adhesion and thus necessarily includes at least a low 

level of procedural unconscionability. (See Sanchez v. Carmax 

Auto Superstores California, LLC (2014) 224 Cal.App.4th 398, 

403.) They argue, however, that the court erred in concluding 

(1) that the injunctive relief exception was substantively 

unconscionable, and (2) that the fee-shifting provision, which 

they acknowledge is substantively unconscionable, could not 

be severed from the agreement. We address each point below.

1. The Injunctive Relief Exception Was 

Not Unconscionable

The court concluded, and Helfet argues on appeal, 

that the injunctive relief exception reflects a substantively 

unconscionable carveout to the arbitration provision, because 

it is “one-sided and meant to benefit solely [Motive].” Where, 

as here, there is no factual dispute affecting the question 

of unconscionability, the trial court’s unconscionability 

determination is a question of law subject to de novo review. 

(See Farrar v. Direct Commerce, Inc. (2017) 9 Cal.App.5th 

1257, 1265.) 
16

By its own terms, the exception is indeed one-sided in 

favor of Motive, as it permits injunctive relief only for breaches

by Helfet of certain provisions protecting only Motive. But a 

contract “ ‘ “can provide a ‘margin of safety’ that gives the party

with superior bargaining strength a type of extra protection 

for which it has a legitimate commercial need without being 

unconscionable.” ’ ” (Baltazar, supra, 62 Cal.4th at p. 1250; 

see also Civ. Code, § 1670.5, subd. (b) [“[w]hen it is claimed 

or appears to the court that the contract or any clause 

thereof may be unconscionable the parties shall be afforded a 

reasonable opportunity to present evidence as to its commercial 

setting, purpose, and effect to aid the court in making the 

determination”].) Therefore, “provisions that allow employers 

to seek a preliminary injunction outside of arbitration for 

breach of a confidentiality agreement are not, by themselves, 

unconscionable, simply because they primarily benefit 

employers.” (Alberto v. Cambrian Homecare (2023) 91 

Cal.App.5th 482, 492; Lange v. Monster Energy Co. (2020) 46 

Cal.App.5th 436, 450 (Lange) [lack of mutuality in carve-out 

allowing employer to seek preliminary injunctive relief did not 

alone render the provision unconscionable; accord, Carbajal v. 

CWPSC, Inc. (2016) 245 Cal.App.4th 227, 250 (Carbajal).)

Such a provision may be unconscionable, however, if it 

contains additional terms that “exceed the legitimate ‘margin 

of safety’ for the employer.” (Alberto, supra, 91 Cal.App.5th at 

p. 492; accord, Lange, supra, 46 Cal.App.5th at p. 451.) Thus, 

an exception to an arbitration agreement “ ‘is substantively 

unconscionable when it authorizes the stronger party to 

obtain injunctive relief without establishing all of the essential 
17

elements for the issuance of an injunction.’ ” (Alberto, supra, at 

p. 492, italics added; Lange, supra, 46 Cal.App.5th at p. 451.)

In Lange, supra, 46 Cal.App.5th 436, this court concluded

the lack of mutuality in an injunctive relief carveout to an 

arbitration agreement was not unconscionable where the 

agreement identified a “ ‘reasonable justification for [the 

carveout’s] lack of mutuality’ [namely,] . . . protecting [the

employer’s] ‘confidential and proprietary information.’ ” (Id.

at p. 450.) Specifically, the agreement stated the employer 

“ ‘enjoy[ed] a competitive advantage as a result of its compilation, 

possession[,] and use of the proprietary information, and that 

[the employer] would suffer competitive harm if the proprietary 

information became known to others outside the company.’ ” 

(Ibid., capitalization omitted.) The court, however, went 

on to conclude that other provisions rendered the carveout

unconscionable; namely, the provisions permitting the employer

to obtain injunctive relief without “ ‘establishing all of the 

essential elements for the issuance of an injunction’ ”—that is,

without posting a bond or establishing irreparable harm—

something for which the employer had identified “no legitimate 

commercial need.” (Id. at p. 451.)

The arbitration provision here describes a justification

for its injunctive relief exception similar to that in Lange: 

that “a breach or violation by [Helfet] [of certain provisions 

protecting Motive’s intellectual property rights] . . . will cause 

immediate and irreparable damage to the company which 

cannot be easily . . . quantified” and “[f]or that reason,” includes 

the injunctive relief exception. (Capitalization omitted.) We 

conclude that here, as in Lange, this is a legitimate commercial 

justification. Therefore, the lack of mutuality does not render 
18

the exception unconscionable. Nor has Helfet argued that the 

exception relieves Motive of any requirements for obtaining 

an injunction. Given the arguments raised by the parties, and 

in light of our decision in Lange and the cases on which it relies, 

the court abused its discretion in concluding the injunctive relief 

exception was unconscionable. 

2. The Court Abused Its Discretion in 

Declining to Sever the Fee-Shifting

Provision

Motive concedes that the trial court correctly concluded 

the cost-sharing provision is unconscionable “in that, at the time 

of execution, [it] created the risk that the employee would be 

required to pay costs prohibited by [California Supreme Court 

case law]”—namely, arbitration forum costs, or expenses the 

employee would not be required to bear if the employee brought 

the action in court. (McManus v. CIBC World Markets Corp.

(2003) 109 Cal.App.4th 76, 102 (McManus), citing Armendariz, 

supra, 24 Cal.4th at pp. 107–115 & Little v. Auto Stiegler, Inc.

(2003) 29 Cal.4th 1064, 1080–1081.) They argue, however, 

that the court reversibly erred in declining to sever the provisions 

it concluded were unconscionable, including the fee-shifting

provision, and that we should reverse the order denying their 

motion to compel arbitration on this basis.

Whether to sever an unconscionable provision in a contract 

is a matter within the discretion of the court. (See Civ. Code, 

§ 1670.5, subd. (a).) Although “the statute appears to give a 

trial court some discretion as to whether to sever or restrict 

the unconscionable provision or whether to refuse to enforce 

the entire agreement[,] . . . it also appears to contemplate 

the latter course only when an agreement is ‘permeated’ by 
19

unconscionability.” (Armendariz, supra, 24 Cal.4th at p. 122; 

see Roman v. Superior Court (2009) 172 Cal.App.4th 1462, 

1477-1478 [“the strong legislative and judicial preference 

is to sever the offending term and enforce the balance of the 

agreement”].) This occurs where “the central purpose of the 

contract is tainted with illegality” rather than “the illegality 

[being] collateral to the main purpose of the contract.” 

(Armendariz, supra, 24 Cal.4th at p. 124.) In considering 

whether an agreement is permeated by unconscionability, courts

take into consideration the extent to which the court would need 

to effectively rewrite a portion of the parties’ contract, as well 

as the number of unconscionable provisions. (Id. at pp. 124–125.)

Applying these considerations, the fee-shifting provision 

is severable. “[W]ith the exception of the [fee-shifting] provision, 

the arbitration agreement[ ] [was] otherwise enforceable . . . [and] 

[is] not so ‘permeated’ with unconscionable provisions that it 

cannot be saved. (Armendariz, supra, 24 Cal.4th at pp. 122–125; 

[Citation].)” (McManus, supra, 109 Cal.App.4th at pp. 101–102; 

see ibid. [concluding on this basis that an “unconscionable 

provision requiring payment of . . . [costs] can be severed.”].) The 

court need not revise the agreement after striking the offending 

fee-shifting provision. Rather, the court can simply excise it, 

leaving to the arbitrator the question of whether and to whom to 

award attorney’s fees—precisely what the arbitrator would have 

done, had the agreement not included any provision regarding 

attorney’s fees to begin with. Nor was “[t]he main purpose of 

the arbitration [provision] . . . to regulate costs [and fees], but 

[rather] to provide a mechanism to resolve disputes. [Citation.]

Because the [fee-shifting] provision is collateral to that purpose, 

severance was available.” (Gutierrez v. Autowest, Inc. (2003) 
20

114 Cal.App.4th 77, 92 (Gutierrez).) The court thus reversibly 

erred in declining to sever the fee-splitting provision and 

compel arbitration.5 (See, e.g., Nguyen, supra, 4 Cal.App.5th 

at pp. 255-256 [where “[a]bsent the fee-splitting provision, . . . 

no other possibly substantively unconscionable provision in 

the arbitration clause,” provision severable]; accord, McManus, 

supra, 109 Cal.App.4th at pp. 101–102 [provision requiring 

sharing of arbitration hearing fees].)

5 Admittedly, “a single unconscionable term could justify 

a refusal to enforce an arbitration agreement if it were drafted 

in bad faith” (Gutierrez, supra, 114 Cal.App.4th at p. 93; see 

Armendariz, supra, 24 Cal.4th at pp. 124–125, fn. 13), and the 

trial court never had occasion to consider whether the fee-shifting 

provision alone was severable. We need not instruct the court to 

perform this analysis following remand, however, because there 

is no evidence in the record, based on which the court could 

conclude that the fee-shifting provision was included in bad faith. 

We may therefore, in the first instance on appeal, decide that the

provision is severable.
21

DISPOSITION

The order is reversed. Following remand, the court shall 

enter a new order striking the fee-shifting provision from the 

agreement and granting the motion to compel arbitration.

Appellants are awarded their costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

BENDIX, J.

WEINGART, J.