1

Filed 3/30/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

LORI DOUGHERTY, Individually and as Successor 

in Interest, etc., et al.,

Plaintiffs and Respondents,

v.

ROSEVILLE HERITAGE PARTNERS et al.,

Defendants and Appellants.

C087224

(Super. Ct. No. 34-2017-

00215283-CU-PO-GDS)

APPEAL from a judgment of the Superior Court of Sacramento County, Kevin R. 

Culhane, Judge. Affirmed.

Beach Cowdrey Jenkins, LLP, Spencer H. Jenkins, and Darryl C. Hottinger for 

Defendants and Appellants.

Newman & Broomand LLP, Daniel S. Newman, Danny A. Barak, and Teresa M. 

Boyd for Plaintiffs and Respondents.
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In January 2017, the 89-year-old father of plaintiffs Lori Dougherty and Julie Lee 

(collectively, plaintiffs) died while living in Somerford Place, an elder residential care 

facility owned and operated by defendants Roseville Heritage Partners, Somerford Place,

LLC, Five Star Quality Care, Inc., and Five Star Quality Care-Somerford, LLC 

(collectively, defendants). In July 2017, plaintiffs sued defendants, alleging elder abuse 

and wrongful death based upon the reckless and negligent care their father received while 

residing in defendants’ facility. 

Defendants appeal from the trial court’s April 2018 order denying their motion to 

compel arbitration and stay the action, contending the arbitration agreement does not 

contain any unconscionable or unlawful provisions. Alternatively, defendants argue the 

court abused its discretion by invalidating the agreement as a whole, rather than severing 

the offending provisions. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs’ father, who suffered from dementia, was admitted to Somerford Place 

in November 2016. In the two weeks leading up to his admission, he was removed from 

two other residential placements due to “aggressive behaviors” and not being a “good 

fit.” Between these placements, plaintiffs’ father had to stay in a local hospital. 

Plaintiffs’ father was scheduled to be released from the hospital the evening that 

Dougherty toured Somerford Place with its marketing director, Jennifer Deal. During the 

15- to 20-minute tour, Dougherty told Deal that Somerford Place was “the only feasible 

care option” for her father. At the time, Dougherty had power of attorney for her father. 

In Dougherty’s affidavit opposing defendants’ motion to compel arbitration, she 

stated that immediately after the tour, Deal presented her with 70 pages of admission 

documents. Pages 43 through 45 of the packet contained an arbitration agreement (the 

Agreement). Deal instructed Dougherty to sign the documents in the packet. 

Dougherty was “relieved” to have found a placement for her father; she was “crying” and 

“emotionally exhausted” as she signed the admission forms. Deal did not inform 
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Dougherty that she could reject, negotiate or modify any of the documents, which were 

provided on preprinted forms. Dougherty therefore “did not believe that [she] could 

modify, negotiate, or refuse any part of the admission documents.” Dougherty stated she 

did not learn she had signed an arbitration agreement until after she filed the complaint 

against defendants. 

Shortly after Dougherty finished signing the admission packet, her father arrived 

via ambulance. Deal had to stay with him while Dougherty “hurried” to the hospital to 

retrieve her father’s belongings. 

Deal testified in deposition proceedings that she had never read the arbitration 

agreement in its entirety, nor had she received training on it. Although she did not review 

each paragraph of the arbitration agreement with a prospective resident, she would give a 

“general overview” that it was an arbitration agreement where both sides waived their 

rights to a jury trial, and both parties agreed to abide by the arbitrator’s ruling. She 

would let a potential resident with questions about the agreement know that he or she 

could read it. Of the 20 or so signings she oversaw while working at Somerford Place, 

only one person had refused to sign the arbitration agreement. She did not say anything 

because it was not a mandatory document, and that individual eventually became a 

resident at the facility. Deal was unfamiliar with the American Arbitration Association 

(AAA) commercial rules (which must be followed under the Agreement), and she would 

not know where to direct someone to find a copy of the rules, especially since there was 

no copy at Somerford Place. 

1. The Agreement

The Agreement states that all disputes between the parties with more than $25,000 

at stake would be resolved through binding arbitration that was not subject to appeal. 

The arbitration panel would be composed of either one or three members, with the 

number to be chosen by the resident. The members of the panel would be chosen by the 

AAA or by mutual agreement by the parties. If a medical issue was “more likely than 
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not” to come before the panel, and the panel consisted of three members, one panel 

member would be a physician. 

The panel would follow the current AAA commercial arbitration rules. The rules 

were not attached to the Agreement, and the Agreement failed to state where they could 

be found. The panel could direct discovery, including, per the AAA commercial rules, 

the exchange of documents between the parties. In addition, in exceptional cases and 

“upon good cause shown and consistent with the expedited nature of arbitration,” the 

arbitrator had the discretion to order depositions. There was no provision in the rules for 

interrogatories or requests for admissions.

The panel could grant equitable relief and award economic and noneconomic 

damages, including for pain and suffering and mental anguish. However, the panel had 

“no authority” to award punitive or exemplary damages. 

The parties were to bear equally the costs and expenses of any arbitration 

proceedings. However, if the resident supplied an affidavit stating an inability to pay 

such expenses, defendants would pay the resident’s share of the costs and expenses. In 

such a situation, the defendants would acquire the right to choose whether the panel 

would be comprised of one or three arbitrators. 

The parties waived their right in advance to a trial by jury for any claims, 

controversies, or disputes for which arbitration was not allowed by law. The Agreement 

was to be construed and enforced under the Federal Arbitration Act (FAA) and its 

provisions were severable, should any portion be declared unenforceable. 

The Agreement also provided that it could be amended by the facility upon 30 

days’ written notice, and the resident would have 30 days upon receipt of the proposed 

amendment to terminate the agreement. Finally, each party agreed and acknowledged 

that it was entering into the Agreement voluntarily, had carefully read it, had asked any 

necessary questions, and had an opportunity to seek the advice of an attorney before 

signing it. 
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The Agreement was signed by Deal (on behalf of Somerford Place) and Dougherty

(as her father’s “authorized representative” under a power of attorney). 

2. Trial court’s denial of defendants’ motion to compel arbitration

In November 2017, defendants filed a motion to compel arbitration. Plaintiffs 

opposed the motion, arguing the Agreement was unconscionable and therefore 

unenforceable, and asked the court to strike the entire agreement. Plaintiffs argued the 

Agreement was procedurally unconscionable because it was “buried in the middle of” 70 

pages of admission documents. Deal also did not go over the Agreement with 

Dougherty, and plaintiffs were not provided a copy of the AAA commercial rules which 

would govern the arbitration proceedings. Plaintiffs also pointed to a provision in the 

Agreement that allowed defendants to modify the Agreement on 30 days’ notice. 

According to plaintiffs, if the resident did not agree with the modifications, the resident 

would then have to notify defendants of his or her intention to move out. In addition, 

plaintiffs argued, Dougherty was under considerable stress when she signed the 

documents and “was given no meaningful choice but to accept all terms presented by 

Deal as they were.” (Original italics.) 

Plaintiffs also argued the Agreement was substantively unconscionable because it 

“sharply curtail[ed]” plaintiffs’ discovery rights. Although the governing AAA 

commercial rules allowed for document exchange, plaintiffs noted there was no provision 

allowing for form or special interrogatories, and depositions were only allowed in 

“ ‘exceptional cases . . . [and] upon good cause shown.’ ” According to plaintiffs, these 

restrictions were unfair because the Elder Abuse and Dependent Adult Civil Protection 

Act (the Act) (Welf. & Inst. Code, § 15600 et seq.) requires a plaintiff to “prove 

systematic elder abuse as opposed to isolated mistakes by a facility.” Plaintiffs argued 

the discovery limitations would prevent them from investigating systematic abuse, 

including defendants’ staffing practices, training, oversight, and regulatory compliance. 
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Plaintiffs also argued the Agreement unfairly prohibited any arbitration panel from 

awarding punitive or exemplary damages, even though such damages were available 

under the Act, and that the Agreement unfairly deprived them of the ability to seek 

attorney fees. 

In addition, plaintiffs argued the Agreement unfairly hid the high cost of the AAA 

administrative fee schedule, which plaintiffs estimated would exceed $57,000. Finally, 

plaintiffs argued that defendants had waived their right to enforce the Agreement by 

breaching their promise to pay plaintiffs’ share of the arbitration costs after plaintiffs 

provided an affidavit stating they could not afford the costs and expenses of arbitration. 

After hearing argument, the trial court denied the motion to compel arbitration. 

By the time of the hearing, defendants had agreed to pay plaintiffs’ share of the 

arbitration expenses, thus the court rejected plaintiffs’ waiver argument. But the court 

ruled that the Agreement was procedurally unconscionable because it was part of a 70-

page stack of documents that Dougherty lacked time to review because her father was 

arriving “imminently” in an ambulance after having been found not suitable for other 

facilities. Given the circumstances, the trial court did not find it dispositive that the 

Agreement was a separate document, or that the volume of documents was “necessitated”

by statutory requirements. In addition, plaintiff was never told that she could modify, 

negotiate, or refuse to sign any of the admission documents. The court also noted that 

Dougherty did not even know there was an arbitration agreement until after the lawsuit 

was filed. The court found that plaintiffs had established that Dougherty had “no 

opportunity to negotiate the [A]greement.” 

The court further found the Agreement was substantively unconscionable because 

of its restrictions on discovery, limitations on damages, and advance waiver of jury trial 

rights for any nonarbitrable causes of action. The discovery provisions were particularly 

unconscionable in the context of plaintiffs’ elder abuse claims because they “limit the 

statutory rights provided by the [Code of Civil Procedure] that are necessary to vindicate 
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the statutory rights provided by the Elder Abuse Act.” Because the contract was 

“permeated with unconscionable provisions,” the court declined defendants’ request to 

sever the offending provisions and instead declared the entire Agreement void. 

DISCUSSION

I

Defendants argue that the trial court erred in finding the Agreement to be both 

procedurally and substantively unconscionable and therefore unenforceable. 

Alternatively, defendants argue that the trial court abused its discretion in invalidating the 

Agreement rather than simply severing the offending provisions. 

Arbitration agreements are “valid, enforceable and irrevocable, save upon such 

grounds as exist for the revocation of any contract.” (Code Civ. Proc., § 1281.) 

California and federal law each favor enforcement of valid arbitration agreements. 

(Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97 

(Armendariz).) However, we will not enforce an arbitration agreement that functions as 

an advance waiver of a claimant’s statutory rights. (Id. at pp. 99-100.) If an arbitration 

agreement contains provisions that are unconscionable, courts may (1) refuse to enforce

the agreement or (2) sever the offending provisions and enforce the remainder of the 

agreement. (Id. at p. 114.)

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 unequal bargaining power, the latter on overly harsh or 

one-sided results.” ’ ” (Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1243.) 

“Oppression arises from an inequality of bargaining power that results in no real 

negotiation and an absence of meaningful choice. Surprise involves the extent to which 

the supposedly agreed-upon terms are hidden in a prolix printed form drafted by the party 
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seeking to enforce them. [Citation.] The substantive element has to do with the effects 

of the contractual terms and whether they are overly harsh or one-sided. [Citations.]” 

(Flores v. Transamerica HomeFirst, Inc. (2001) 93 Cal.App.4th 846, 853 (Flores), italics 

omitted.)

“The party resisting arbitration bears the burden of proving unconscionability. 

[Citations.] Both procedural unconscionability and substantive unconscionability must 

be shown, but ‘they need not be present in the same degree’ and are evaluated on ‘ “a 

sliding scale.” ’ [Citation.] [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.” (Pinnacle Museum Tower Assn. v. Pinnacle 

Market Development (US), LLC (2012) 55 Cal.4th 223, 247 (Pinnacle).) 

The unconscionability of an arbitration agreement is a question of law that we 

review de novo, applying general principles of California contract law to determine the 

agreement’s enforceability. (Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 

Cal.App.4th 74, 82.) To the extent the trial court relied on contested facts in making its 

determination, we review the court’s factual determinations for substantial evidence. 

(Ibid.) We will only reverse a trial court’s refusal to sever any unconscionable portions

upon a showing of abuse of discretion. (Id. at p. 83.) 

1. Procedural unconscionability

Defendants argue the Agreement was not procedurally unconscionable because it 

was incumbent upon Dougherty to read the contract before signing it, and there was no 

evidence that Somerford Place was the only option for plaintiffs’ father. Also, the 

Agreement was a separate document within the admission packet, and it was separately 

signed by Dougherty. The Agreement explained the primary rights Dougherty would be 

giving up and contained a clause whereby Dougherty agreed that she was voluntarily 

entering into the Agreement. Defendants also point to Deal’s “practice” of telling 
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prospective residents that he or she does not have to sign the arbitration agreement, 

although they cite no evidence for this factual proposition. 

In addition, according to defendants, it would be unfair to consider the size of the 

admission packet as evidence of procedural unconscionability because the Legislature 

requires facilities like Somerford Place to “provide an extensive amount of information in 

its admission agreement.” Defendants further argue it would be unfair to refuse to 

enforce the Agreement when plaintiffs are seeking to enforce other admission documents. 

In addition, defendants argue that courts have made clear that the failure to attach any 

governing AAA rules does not render an arbitration agreement procedurally 

unconscionable, especially since Dougherty claimed she did not even realize she had 

signed an arbitration agreement at the time. Finally, defendants argue that a party has no 

affirmative duty to tell another party that the terms of a proposed agreement are 

negotiable. Defendants’ contentions lack merit.

As courts have explained, the initial question regarding procedural 

unconscionability is whether the contract was one of adhesion, namely, a “ ‘standardized 

contract, which, imposed and drafted by the party of superior bargaining strength, 

relegates to the subscribing party only the opportunity to adhere to the contract or reject 

it.’ ” (Armendariz, supra, 24 Cal.4th at p. 113; see also Pinnacle, supra, 55 Cal.4th at p. 

247 [“ ‘ “Oppression occurs where a contract involves lack of negotiation and meaningful 

choice, surprise where the allegedly unconscionable provision is hidden within a prolix 

printed form” ’ ”]; Cubic Corp. v. Marty (1986) 185 Cal.App.3d 438, 449 [“[i]n the 

characteristic adhesion contract, the stronger party has drafted the contract and given the 

weaker party no opportunity to negotiate its terms and the weaker party may have no 

realistic opportunity to look elsewhere for a more favorable contract, but must adhere to 

the standardized agreement”].) “A finding of a contract of adhesion is essentially a 

finding of procedural unconscionability. [Citations.]” (Flores, supra, 93 Cal.App.4th at 

p. 853.) 
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For example, in Flores, the court found procedural unconscionability where a set 

of preprinted loan documents that included arbitration clauses was presented by 

defendant for plaintiffs’ signature. (Flores, supra, 93 Cal.App.4th at pp. 849-850, 853-

854.) The documents were cast in generic language, and the plaintiffs were never 

informed that the documents or arbitration provisions were negotiable. (Id. at p. 853.) 

The documents indicated that to establish the loan the plaintiffs sought, they had to sign 

the loan documents. In addition, the defendant’s representative told the plaintiffs that 

defendant was the only company in California who offered the type of loan that the 

plaintiffs sought, indicating that the plaintiffs had “no real choice of alternate lenders.” 

(Ibid.) Because the facts indicated the arbitration agreement was imposed upon the 

plaintiffs on a “ ‘take it or leave it’ basis,” the court concluded it was a contract of 

adhesion and therefore procedurally unconscionable. (Id. at p. 854.)

Similarly here, the arbitration agreement was provided on a preprinted form to 

Dougherty as part of a 70-page packet of admission documents for her father, who was

being released from the hospital and needed to find a care facility that day. Although 

being pressed for sufficient time to thoroughly read and understand an arbitration 

agreement is not, standing alone, an indicator of procedural unconscionability (see 

Brookwood v. Bank of America (1996) 45 Cal.App.4th 1667, 1674 [a plaintiff may be 

bound by the provisions of an arbitration agreement “ ‘regardless of whether [she] read it 

or [was] aware of the arbitration clause when [she] signed the document’ ”]), the situation 

here was more complicated because two other facilities had already found Dougherty’s 

father to be unsuitable. Dougherty communicated her family’s predicament and her 

accompanying lack of bargaining power to Deal, telling Deal that Somerford Place was 

“the only feasible care option.” 

Although the admission documents may have been required by law to include 

multiple disclosures, the Agreement was still buried within the packet at pages 43 

through 45. In addition, defendants failed to make available a copy of the governing 
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AAA commercial rules which contain the guidelines for the limited discovery available 

under the Agreement. (See, e.g., Lane v. Francis Capital Management LLC (2014) 224 

Cal.App.4th 676, 690 [the failure to attach incorporated arbitration rules is not “by itself” 

sufficient to sustain a finding of procedural unconscionability, but it “could be a factor 

supporting a finding of procedural unconscionability where the failure would result in 

surprise to the party opposing arbitration”].) Despite Deal’s testimony that the 

Agreement was not a “force[d]” (mandatory) document, Dougherty stated in her 

declaration that Deal instructed her to sign the admission documents. Dougherty 

perceived she did not have the ability to “modify, negotiate, or refuse any part of the 

admission documents.” 

Based on the adhesiveness of the agreement, and the oppression and surprise 

present, we conclude the trial court properly found the Agreement was imposed on a 

“take it or leave it” basis and evinced a high degree of procedural unconscionability. 

Under the sliding scale approach, only a low level of substantive unconscionability is 

therefore required to render the arbitration agreement unenforceable.

2. Substantive unconscionability

Defendants first cite AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333 [179 

L.Ed.2d 742] for the proposition that the substantive unconscionability doctrine may not 

be invoked under the FAA, which governs the construction and enforcement of the 

Agreement. We disagree, given that Concepcion also held that the FAA “permits 

agreements to arbitrate to be invalidated by ‘generally applicable contract defenses, such 

as fraud, duress, or unconscionability.’ ” (Id. at p. 339.)

Defendants next argue that a finding of substantive unconscionability is not 

supported by the factors considered by the trial court. According to defendants, courts 

have recognized that limited discovery rights are the hallmark of arbitration. Regardless, 

defendants assert, the AAA commercial rules provide for “significant discovery.” 

Defendants next argue the jury trial waiver was not at issue because plaintiffs failed to 
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argue that any of their claims (elder abuse and wrongful death) were nonarbitrable. In 

addition, the cost-sharing provision was not at issue because (1) no costs had yet been 

incurred, and (2) defendants agreed to pay plaintiffs’ share of the costs. Finally, 

defendants argue the modification provision was not substantively unconscionable 

because it allowed plaintiffs to terminate the Agreement within 30 days if they did not 

agree to the changes. 

We agree with the trial court’s conclusion that the Agreement was substantively 

unconscionable, particularly given the accompanying evidence of procedural 

unconscionability. 

Plaintiffs allege a claim of neglect pursuant to the Act, which was “adopted to 

protect a particularly vulnerable portion of the population from gross mistreatment by 

adding heightened remedies to enable interested persons to engage attorneys to take up 

the cause of abused elderly persons.” (Benun v. Superior Court (2004) 123 Cal.App.4th 

113, 125.) These heightened remedies include attorney fees and costs for a winning 

plaintiff, damages for pain and suffering, and punitive damages. (Welf. & Inst. Code, 

§ 15657; see also Delaney v. Baker (1999) 20 Cal.4th 23, 26; Berkley v. Dowds (2007) 

152 Cal.App.4th 518, 529 [the Act provides for attorney fees, costs, and punitive 

damages under certain conditions].) To obtain the available remedies, a plaintiff “must 

demonstrate by clear and convincing evidence that [a] defendant is guilty of . . . reckless, 

oppressive, fraudulent, or malicious conduct.” (Delaney, at p. 31; see also Carter v. 

Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405 [a plaintiff 

claiming elder abuse “ ‘must allege conduct essentially equivalent to conduct that would 

support recovery of punitive damages’ ”].)1 

1 To establish a claim for neglect under the Act, a plaintiff “must allege (and 

ultimately prove by clear and convincing evidence) facts establishing that the defendant

(1) had responsibility for meeting the basic needs of the elder or dependent adult, such as 
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As courts have noted, “[t]he denial of adequate discovery in arbitration 

proceedings leads to the de facto frustration of” statutory rights such as claims brought 

under the Act. (Armendariz, supra, 24 Cal.4th at p. 104.) In addition, an arbitration 

agreement “may not limit statutorily imposed remedies such as punitive damages and 

attorney fees.” (Id. at p. 103; see also Bickel v. Sunrise Assisted Living (2012) 206 

Cal.App.4th 1, 12-13 [waiver in residency agreement of plaintiff’s statutory remedies

under the Act unenforceable as contrary to public policy].)

We agree with the trial court that the discovery limitations here unfairly and 

unreasonably favor defendants. As operators of an elder residential care facility, it is 

foreseeable that defendants would face suits under the Act such as the one brought by 

plaintiffs. Even though the law requires plaintiffs to establish their elder abuse claims 

under the clear and convincing evidence standard, the governing AAA commercial rules 

only permit depositions in “exceptional cases” at the discretion of the arbitrator, upon a 

showing of good cause, and “consistent with the expedited nature of arbitration.” It is 

unclear whether an arbitrator would consider plaintiffs’ case to be “exceptional” with 

sufficient “good cause” to warrant depositions. In addition, although the arbitrator has 

authority to require document discovery, there is no provision for interrogatories or 

nutrition, hydration, hygiene or medical care [citations]; (2) knew of conditions that made 

the elder or dependent adult unable to provide for his or her own basic needs [citations]; 

and (3) denied or withheld goods or services necessary to meet the elder or dependent 

adult’s basic needs, either with knowledge that injury was substantially certain to befall 

the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with 

conscious disregard of the high probability of such injury (if the plaintiff alleges 

recklessness) [citations]. The plaintiff must also allege (and ultimately prove by clear 

and convincing evidence) that the neglect caused the elder or dependent adult to suffer 

physical harm, pain or mental suffering. [Citations.] Finally, the facts constituting the 

neglect and establishing the causal link between the neglect and the injury ‘must be 

pleaded with particularity,’ in accordance with the pleading rules governing statutory 

claims. [Citation.]” (Carter v. Prime Healthcare Paradise Valley LLC, supra, 198 

Cal.App.4th at pp. 406-407.)
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requests for admissions. These discovery restrictions run the risk of frustrating plaintiffs’ 

statutory rights under the Act. (See Armendariz, supra, 24 Cal.4th at p. 104 [“[t]he 

denial of adequate discovery in arbitration proceedings leads to the de facto frustration 

of” statutory rights such as claims brought under the Act].)

Defendants cite Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 

83 Cal.App.4th 677 for the proposition that no “case . . . has ever held that an arbitration 

provision is substantially unconscionable merely because a party’s discovery rights are 

limited in arbitration. Limited discovery rights are the hallmark of arbitration.” (Id. at p. 

689.) In fact, courts have made clear that limited discovery rights may be substantively 

unconscionable, especially in the context of statutory claims. (See Baxter v. Genworth 

North America Corp. (2017) 16 Cal.App.5th 713, 730 [employment arbitration 

guidelines, which set default limitations on discovery that may be conducted in 

preparation for arbitration, but which granted arbitrator right to expand discovery “ ‘for 

good and sufficient cause shown,’ ” were substantively unconscionable]; see also Fitz v. 

NCR Corp. (2004) 118 Cal.App.4th 702, 716 [curtailment of discovery imposed by 

arbitration agreement fell short of minimum standards of fairness required for employee’s 

vindication of public rights, where former employee sued for age discrimination in 

violation of the Fair Employment and Housing Act].) Moreover, here the Agreement 

also limited plaintiffs’ rights to recover remedies made available under the Act, including 

punitive damages and attorney fees. (See Armendariz, supra, 24 Cal.4th at p. 103 [an 

arbitration agreement “may not limit statutorily imposed remedies such as punitive 

damages and attorney fees”].) In addition, the Agreement required plaintiffs to waive in 

advance their right to a jury trial for any dispute for which arbitration is not allowed by 

law. Regardless of whether plaintiffs have currently filed such a claim, our Supreme 

Court has made clear that predispute contractual jury trial waivers are unenforceable 

under California law. (Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 961

[“Resolving any ambiguity in favor of preserving the right to jury trial, as we must, we 
15

conclude [Code of Civil Procedure] section 631 does not authorize predispute waiver of 

that right”].)

Under the circumstances, we find that the Agreement was substantively 

unconscionable. 

3. The trial court did not abuse its discretion in denying severance

In their briefing, and at oral argument, defendants asserted that even if the 

Agreement contained provisions that are procedurally or substantively unconscionable, 

the proper remedy was to sever those provisions, not invalidate the entire agreement. We 

find no abuse of discretion.

A trial court may refuse to enforce an arbitration agreement if it is permeated by 

unconscionability. (Armendariz, supra, 24 Cal.4th at p. 122.) “One relevant factor in 

assessing severability is whether the agreement contains more than one objectionable 

term. [Citation.]” (Abramson v. Juniper Networks, Inc. (2004) 115 Cal.App.4th 638, 

666.) “ ‘An arbitration agreement can be considered permeated by unconscionability if it 

“contains more than one unlawful provision . . . . Such multiple defects indicate a 

systematic effort to impose arbitration . . . not simply as an alternative to litigation, but as 

an inferior forum that works to the [employer’s] advantage.” [Citations.]’ ” (Samaniego 

v. Empire Today, LLC (2012) 205 Cal.App.4th 1138, 1149.)

Given our conclusion that the Agreement suffered from multiple defects rendering 

it procedurally and substantively unconscionable, we further conclude that the trial court 

did not abuse its discretion in finding that the Agreement was “permeated with 

unconscionable provisions,” and therefore refusing to simply sever the offending clauses.
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DISPOSITION

The order is affirmed. Plaintiffs shall recover their costs on appeal. (Cal. Rules of 

Court, rule 8.278(a).) 

 KRAUSE , J.

We concur:

 MURRAY , Acting P. J.

 HOCH , J.