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

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

ANDREW HELFET

,

Plaintiff and Respondent,

v.

MOTIVE ENERGY, INC., et al.

,

Defendant s and Appellant s

. B 331359

(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 Defendant s and Appellant s

. 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
Rober t 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
the m . The court denied the motion on two bases: (1) that the
defendants failed to prove the existence of an agreement to arbitrate, because o n ly Helfet

— and not Motive

— s igned 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 p rovisions

. 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 provisi on c ould

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 sta n d

- alone document entitled

“ E mployee C onfidentiality and M utual A rbitra tion A greement

— California” (the agreement). (Full capitalization omitted.)
The a greement 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 p rovision) is entitled “ A rbitration .” It provides, inter alia : “T he c ompany is committed to using binding arbitration to resolve all legal disputes, whether initiated by the c ompany or by an employee,
in a forum which provides this alternative to the cour t system. As a condition of employment or continued employment of [Helfet]

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

c ompany’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 c ompany; it may
not be modified or re s cinded exc ept by a mutual, written and signed further agreement by both the c ompany and [Helfet]

. [ ¶ ] The c ompany 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 c ompany , shall be submitted to and determined by binding arbitration under the California Arbitration Act (

. . . Code Civ. Proc

. [

, ] § 1280 et seq.) (hereinafter ‘ a rbitration a greement ’ ). The c ompany and [Helfet]4

agree, however, that an exception to the a rbitration a greement exists for purposes of the c ompany seeking an injunction from any court of competent jurisdiction to enforce this a greement pursuant to s ection 7 of this a greement.” (Capitalization omitted.) Section 7 is captioned “ e nforcement of a greements”
and provides “ that a breach or violation by [Helfet] of s ection [s] 5, 6, and/or 9 ”

— which address the “ p rotection and o wnership o f ” certain proprietary information, “raiding,” defined as recruiting or encouraging Mo tive employees to terminate their employment with Motive, and “ i nventions/ i ntellectual p roperty r ights”

— “w ill cause immediate and irreparabl e damage to the c ompany which
cannot be easily

. . . quantified. (Boldface and capitalization omitted.) For that r eason, [Helfet] agrees that the c ompany shall be entitled, as a matter of right, to an injunction from any court of competent jurisdiction, restraining any further violation of this

a greement. This remedy shall be in addition to any other rights
and remed ies the c ompany may have pursuant to this a greement or law, including, specifically, the recovery of monetary damages, whether compensatory or punitive. ” ( Boldface & c apitalization omitted.) We shall refer to this aspect of the arbitration provision

as t he “injunctive relief exception.”
The arbitration provision clarifies that, other than the injunctive relief exception

, the arbitration provision “ governs all disputes between the c ompany 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 c ompa ny give up their rights to trial by jury. ” (Capitalization omitted.)5 The agreement also contains a provision entitled “Costs and Attorneys ’ Fees

, ” which provides: “I n the event of any proceeding, arbitration, or litigation between the parties arising
und er this a greement, 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 “ e mployee” and a “ Motive

. . .

r epre sentative.” (Capitalization omitted.) Helfet signed the agreement on May 7, 2020 as the “ e mployee

. ” No one signed
the agreement on behalf of Motive

.
B. Helfet’s Lawsuit and the Defendants’ Motion T o Compel Arbitration

O n 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 alleg es violations of the Labor Code, the Investigative Consumer Reporting Agencie s Act, and the Credit Reporting Agencies Act , and a cause of action under the Private Attorneys General Act. O n April 28, 2023, defendants moved
for an order dismissing the action and compelling Helfet to submit his claims to binding arbitration on an ind ividual basis, or, alternatively, compelling all arbitrable claims into individual arbitration and staying the non

- arbitrable claims pending
conclusion of arbitr ation

. 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 a n Agreement T o 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 her e, 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, “ t he 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
Entertainm ent, 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 ) , “t he 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 sub stantial 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 cour t ’ s conclusion that

‘ “ [t]he language of the provision shows that it was contemplated
t hat 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 include s: (1) the employe r having authored the written agreement and printed
it on the employer’s letterhead ( i bid. ; 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 requir ing the employee to sign it

as a conditi on 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 i bi d

. [“the arbitration clause declared [the employer’s] intent to be bound thereby” with language stating that “the c ompany likewise

agrees to mandatory final and binding arbitration of any c overed
d isputes” ] , 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 on boarding paperwork. (See Serafin, supra , 235 Cal.App.4th at p. 176;
Cruise , supra, 233 Cal.App.4th at p p . 39 8

– 39 9; 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 , to8

wit: “The c ompany is committed to using binding arbitration

to res olve all legal disputes .” “ The c ompany 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

, bo th [ Helfet ] and the c ompany 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 provid es 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 propos ed 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 c ompany’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 to9

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

a commitment to arbitrate that Motive attest s to without qualification elsewhere in the document. This interpretation
is guided not only by the specific lan guage 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 Motiv e present ing the agreement as a non

- negotiable prerequisite to employ ment
, then employ ing 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 m eans of assenting to
the arbitration provision, and that Motive’s failure to sign
the agreement does not signif y 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 d isadvantageous. 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.4 th 1153

. But

t he courts in these cases were interpreting language materially
different from that on which Helfet relies here

. T he facts and reasoning of these cases distinguish them from th is case in other respects as well

. Marc us 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 p p . 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 . . .

. You r 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 Initi als /s/

___ Seller ’ s Initials_

_ _. ’ ” ( Id

. at p. 8 6 .) “ [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 the y , but not the sellers, had initialed. The court first analyzed the situation by “ [ a] pplying general California c ontract law” principles11

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

— bu t 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 [,]

. . . ‘ b uyer, s eller and a gent ’ did not agree to submit controversies to binding arbitration, as the
arbitration clause re quire [d]

. ” ( I bi d. , 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

. T he contract in Marcus included and expressly referenced a spa ce 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 arbitrat ion pro vision , 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 consen ted 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 e xecuting the agreement was a prerequisite to Motive employing Helf et

. 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 t he 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. 1 1 55.) The section was “titled ‘ m utual a greement to

a rbit rate c laims’ ” 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 fi nal 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 ‘ e mployee a cknowledgment’ . . . [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 h andbook supersedes and replaces any prior company h andbook. I agree to abide by these policies and rules during my employment, and understand the consequ ences if I do not. ’ ” ( I

bi d. , capitalization omitted. ) The employee had signed th is acknowledgment , but neither party had signed
the arbitration agreement section signature page . The court concluded, “based upon the disparate language between [the
arbit ration] 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. 11 59.) Because the employee had not signed the separate arbitration agreement,
there could be no agreement to arbitrate

. T he language in the arbitration section in Romo is materially different from that at issue here, because, like
the language in Marcus , i t describes that section as creating

an agreemen t to arbitrate between the partie s. As noted,
the arbitration provision here does not condition Motive ’s agreement on a signature

— rather, it refers to Motive’s14

commitment to arbitrating employee disputes, an d refers

to a Motive representative’s signature as “confirming” that
commitment. Moreover, Romo also did not have occasion

to consider the situation presented by th is 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 cou rt 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 establish es 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 ar bitration] 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 ar e 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 to15

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.5 th 232, 246 ( Nguyen ) .) “Both procedural

a nd 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 concede s , as it must, that the agreement is a
contract of adhesion and thus necessarily includes a t least a low level of procedural unconscionability. ( See Sanchez v. Car m ax Auto Superstores Cal ifornia , LLC (2014) 224 Cal.App.4th 398,
403

. ) They argue, however, that the court erred in concluding (1) that the inju nc tive relief exception was substantively unconscionable, and (2) that the fee

- shifting provision, which they acknowledge is substantively unconsci onable, 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 th e injunctive relief exception reflects a substantively

unconsc ionable 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, t he 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, th e 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

unc onscionable.” ’ ” ( 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 o f 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 ).)
S uch a provision may be unconscionable, however

, if it
contain s 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 essential17

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

p. 492
, italics added ; Lange, supra , 46 Cal.App.5th at p. 451.)
I n 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. 45 0 .) Specifically , the agreement stated t he employer

“ ‘enjoy [ed] a com petitive advantage as a result of its compilation, possession[,] and use of the p roprietary i nformation, and that [the employer] would suffer competitive harm if the p roprietary
i nformation became known to others outside the c ompany. ’ ” ( I bi d

. , capitalization omitted

. ) T he court , howe ver, went

on to conclude that other provisions rendered the carveout

unc onscionable; namely, the provision s permitt ing the employer
to obtain injunctive relief without “ ‘establishing all of the
essential elements f

or 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 i n 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 c ompany which

cannot be easily

. . . quantified ” and “[f] or that reason, ” includes the injunctive relief exception. (Capitali zation omitted.) We conclude that here, as in Lange , this is a legitimate commercial justification

. Therefore, the lack of mutuality does not render18

the exception unconscionable. Nor has Helfet argue d that the exception relieves Motive of any requiremen ts 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 Co urt Abused Its Discretion in Declining to Sever the Fee

- Shifting Provision

Motive concede s 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 empl oyee brought
the action in court. ( McManus v. CIBC World Markets Corp. (2003) 109 Cal.App.4th 76, 10 2 ( McManus ) , citing Armendariz,

supra , 24 Cal.4th at pp. 107

– 115 & Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1080

– 1081.) The y argue, however,
that the court reversibly erred in declining to sever th e provision s 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 un conscionable provision or whether to refuse to enforce
the entire agreement[,] .

. . it also appears to contemplate
the latter course only when an agreement is ‘ permeated ’ by19

unconscionability.” (

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

see Roman v. Super ior Court (2009) 172 Cal.App.4th 1462,
1477

- 1478 [ “ t he 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 t o 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 except ion 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].) ” ( McManu s, 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.]
B ecause the [fee

- shifting] provision is collateral to that purpose,
severance was available

. ” ( Gutierrez v. Autowest, Inc. (2003)20

114 Cal.App.4th 77, 9 2 ( Gutierrez ) .) The court thus reversibly erred in declining to sever the fee

- splitting provision and

co mpel arbitration. 5 (S ee, 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. 9 3 ; see Armendariz, supra , 24 Cal.4th at pp. 124

– 125, fn. 13 ) , and t he trial court never had occasion to consider whether the fee

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

per form 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 g ranting the motion to compel arbitration. Appellants are awarded their costs on appeal.

NOT TO BE PUBLISHED

.

R OTHSCHILD, P. J. We concur:

BENDIX , J.

WEINGART , J.