IN THE SUPREME COURT OF 

CALIFORNIA

ANGELICA RAMIREZ,

Plaintiff and Respondent,

v.

CHARTER COMMUNICATIONS, INC.,

Defendant and Appellant.

S273802

Second Appellate District, Division Four

B309408

Los Angeles County Superior Court

20STCV25987

July 15, 2024

Justice Corrigan authored the opinion of the Court, in which 

Chief Justice Guerrero and Justices Liu, Kruger, Groban, 

Jenkins, and Evans concurred.
1

RAMIREZ v. CHARTER COMMUNICATIONS, INC.

S273802

Opinion of the Court by Corrigan, J.

Defendant was sued by a former employee and 

unsuccessfully moved to compel arbitration. The trial court and 

the Court of Appeal concluded the arbitration agreement 

contained unconscionable provisions and declined to enforce it. 

We too conclude that certain provisions are substantively 

unconscionable. The next question revolves around remedy. 

Should the courts have refused to enforce the agreement, or 

could they have severed the unconscionable provisions and 

enforced the rest? We conclude the matter must be remanded 

for further consideration of this question in light of the 

conclusions and the analysis set out here. We also conclude the 

Court of Appeal’s decision did not violate the Federal 

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

I. BACKGROUND

A. Proceedings Below and Grant of Review

Defendant Charter Communications, Inc. (Charter) has 

nearly 100,000 employees and provides telecommunications 

services throughout the United States. Charter has adopted an 

alternative dispute resolution program called Solution Channel, 

which it describes as “the means by which a current employee, 

a former employee, an applicant for employment, or Charter can 

efficiently and privately resolve covered employment-based 

legal disputes.” 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

2

Charter job applicants had to agree to use Solution 

Channel. If a job offer was made, prospective employees used a 

computerized onboarding process. They were required to read 

several company documents and policies and to agree by use of 

an electronic signature. Those documents included a Mutual 

Arbitration Agreement (Agreement) and the Solution Channel 

Guidelines (Guidelines). 

Charter hired plaintiff Angelica Ramirez in July 2019. 

Using the onboarding process, Ramirez accepted the proposed 

Agreement, including adherence to the Guidelines. In May 

2020, Ramirez was fired. She sued Charter in July 2020, 

alleging claims for discrimination, harassment, and retaliation 

under the Fair Employment and Housing Act (Gov. Code, 

§ 12900 et seq.; FEHA) along with a claim of wrongful discharge 

in violation of public policy.1 

Relying on the Agreement, Charter moved to compel 

arbitration and to recover the attorney fees incurred in seeking 

that ruling. In opposition, Ramirez argued the Agreement was 

procedurally unconscionable as a contract of adhesion, and that 

several provisions were substantively unconscionable as well. 

The challenged provisions included those: describing which 

claims were subject to and excluded from arbitration; imposing 

a shortened filing period for certain claims; limiting the 

discovery available in arbitration; and allowing Charter to 

recover attorney fees in a manner contrary to FEHA. Charter 

1 Ramirez initially filed a complaint with the Department of 

Fair Employment and Housing (DFEH) for employment 

discrimination under FEHA, waived her right to a DFEH 

investigation, and requested an immediate right-to-sue letter. 

The request was granted. 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

3

urged the Agreement was not unconscionable. Alternatively, it 

argued that, if certain provisions were so held, they should be 

severed and the balance of the Agreement enforced. 

The trial court found that the Agreement was one of 

adhesion because it was required as a condition of employment. 

It concluded the Agreement was substantively unconscionable 

because it shortened the time for filing a claim; violated FEHA 

by failing to limit Charter’s recovery of attorney fees to cases 

involving frivolous or bad faith claims; and impermissibly 

allowed an interim fee award to a party which successfully 

compelled arbitration. The court rejected arguments that the 

discovery limitations and the exclusion of some claims were 

unconscionable. Finding the Agreement was “permeated with 

unconscionability,” the court refused to enforce it and denied the 

motion to compel arbitration. Charter appealed. 

The Court of Appeal affirmed the denial of Charter’s 

motion, although it disagreed with aspects of the trial court’s 

reasoning and concluded additional provisions were 

unconscionable. The court also disagreed with Patterson v. 

Superior Court (2021) 70 Cal.App.5th 473 (Patterson) as to the 

enforceability of a provision calling for an interim award of 

attorney fees following a successful motion to compel. 

We granted review to resolve that conflict and to 

determine whether the Court of Appeal erred in concluding the 

Agreement was unconscionable because it lacked mutuality in 

terms of the claims subject to and excluded from arbitration;

shortened the period for filing claims; and truncated discovery. 

We also agreed to resolve whether the Court of Appeal’s refusal 

to sever the unconscionable provisions and enforce the 

Agreement violated the FAA. 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

4

B. Relevant Provisions of the Agreement and the 

Guidelines

In Section A of the Agreement, Ramirez and Charter 

“mutually agree” that “any dispute arising out of or relating to 

[Ramirez’s] pre-employment application and/or employment 

with Charter or the termination of that relationship, except as 

specifically excluded below, must be resolved through binding 

arbitration by a private and neutral arbitrator, to be jointly 

chosen by [Ramirez] and Charter.” Sections B and C modify 

Section A and specify certain claims as subject to (Section B) or 

excluded from (Section C) arbitration. Among other claims, 

those for wrongful termination, discrimination, harassment, 

and retaliation are made subject to arbitration. 

Section E limits the time for filing an arbitration claim. 

Section I provides that the “arbitrator will decide all discovery 

disputes related to the arbitration” and that all arbitration 

proceedings are conducted pursuant to the Guidelines. 

Section K governs the allocation of arbitral costs, fees, and 

expenses. It requires that Charter pay “AAA administrative 

fees” and “the arbitrator’s fees and expenses.” “All other costs, 

fees and expenses associated with the arbitration, including 

without limitation each party’s attorneys’ fees, will be borne by 

the party” incurring them. Section K goes on to provide that 

“the failure or refusal of either party to submit to arbitration as 

required by this Agreement will constitute a material breach of 

this Agreement. If any judicial action or proceeding is 

commenced in order to compel arbitration, and if arbitration is 

in fact compelled or the party resisting arbitration submits to 

arbitration following the commencement of the action or 

proceeding, the party that resisted arbitration will be required 

to pay to the other party all costs, fees and expenses that they 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

5

incur in compelling arbitration, including, without limitation, 

reasonable attorneys’ fees.” 

As relevant here, the Guidelines set out general 

procedural rules for arbitration. These include how discovery is 

to be conducted and a provision that the “prevailing party” may 

recover, at the arbitrator’s discretion, “any remedy that the 

party would have been allowed to recover had the dispute been 

brought in court.” 

II. DISCUSSION

Federal and California law treat valid arbitration

agreements like any other contract and favor their enforcement. 

(9 U.S.C. § 2; OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 125 (Kho); 

Torrecillas v. Fitness Internat., LLC (2020) 52 Cal.App.5th 485, 

492 (Torrecillas).) The California Arbitration Act (Code Civ. 

Proc., § 1280 et seq.; CAA) expresses a “ ‘ “strong public policy in 

favor of arbitration as a speedy and relatively inexpensive 

means of dispute resolution.” ’ ” (Kho, at p. 125, quoting 

Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9.) A written 

agreement to submit a controversy to arbitration is valid, 

enforceable, and irrevocable, “save upon such grounds as exist 

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

Unconscionability provides such grounds. (Armendariz v. 

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

99 (Armendariz).) 

The “general principles of unconscionability are well 

established. A contract is unconscionable if one of the parties 

lacked a meaningful choice in deciding whether to agree and the 

contract contains terms that are unreasonably favorable to the 

other party.” (Kho, supra, 8 Cal.5th at p. 125; see also Baltazar 

v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1243 (Baltazar).) 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

6

Unconscionability has both a procedural and a substantive 

element. (Pinnacle Museum Tower Assn. v. Pinnacle Market 

Development (US), LLC (2012) 55 Cal.4th 223, 246 (Pinnacle).) 

The party resisting enforcement of an arbitration agreement 

has the burden to establish unconscionability. (Id. at p. 236.) 

Procedural unconscionability “addresses the 

circumstances of contract negotiation and formation, focusing 

on oppression or surprise due to unequal bargaining power.” 

(Pinnacle, supra, 55 Cal.4th at p. 246.) This element is generally 

established by showing the agreement is a contract of adhesion, 

i.e., 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.” (Yeng Sue Chow v. Levi Strauss & Co. (1975) 49 

Cal.App.3d 315, 325 (Yeng Sue Chow).) Adhesion contracts are 

subject to scrutiny because they are “not the result of freedom 

or equality of bargaining.” (Ibid.) However, they remain valid 

and enforceable unless the resisting party can also show that 

one or more of the contract’s terms is substantively 

unconscionable or otherwise invalid. 

Substantive unconscionability looks beyond the 

circumstances of contract formation and considers “the fairness 

of an agreement’s actual terms” (Pinnacle, supra, 55 Cal.4th at 

p. 246), focusing on whether the contract will create unfair or 

one-sided results (Armendariz, supra, 24 Cal.4th at p. 114). 

Substantively unconscionable contractual clauses “reallocate 

risks in an objectively unreasonable or unexpected manner.” 

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

Cal.App.4th 695, 703 (Serpa); see also Lange v. Monster Energy 

Co. (2020) 46 Cal.App.5th 436, 447 (Lange).) 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

7

Both procedural and substantive elements must be 

present to conclude a term is unconscionable, but these required 

elements need not be present to the same degree. (Baltazar, 

supra, 62 Cal.4th at p. 1243.) Courts apply a sliding scale 

analysis under which “the more substantively oppressive [a] 

term, the less evidence of procedural unconscionability is 

required to come to the conclusion that the term is 

unenforceable, and vice versa.” (Armendariz, supra, 24 Cal.4th 

at p. 114.) “[W]hether a contract is fair or works unconscionable 

hardship is determined with reference to the time when the 

contract was made and cannot be resolved by hindsight by 

considering circumstances of which the contracting parties were 

unaware.” (Yeng Sue Chow, supra, 49 Cal.App.3d at p. 325.) 

Appellate review of an order regarding an arbitration 

agreement’s validity is de novo if the evidence is not in conflict 

and the ruling is based entirely on an interpretation of law. 

(Pinnacle, supra, 55 Cal.4th at p. 236.) If a validity ruling rests 

on the trial court’s resolution of evidentiary disputes, 

substantial evidence review applies to the court’s factual 

findings. (Magno v. The College Network, Inc. (2016) 1 

Cal.App.5th 277, 283 (Magno).) The facts here are undisputed; 

our review is de novo. 

A. Procedural Unconscionability 

The trial court and the Court of Appeal ruled that the 

Agreement was procedurally unconscionable because it was an 

adhesion contract required as a condition of employment. 

Charter does not challenge that conclusion. Instead, it urges the 

degree of unconscionability is low because the Agreement’s 

adhesive nature is the only basis for that finding. (See Dotson 

v. Amgen, Inc. (2010) 181 Cal.App.4th 975, 981 (Dotson).) 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

8

We have previously explained that there are “ ‘degrees of 

procedural unconscionability. At one end of the spectrum are 

contracts that have been freely negotiated by roughly equal 

parties, in which there is no procedural unconscionability. . . . 

Contracts of adhesion that involve surprise or other sharp 

practices lie on the other end of the spectrum. [Citation.] 

Ordinary contracts of adhesion, although they are indispensable 

facts of modern life that are generally enforced [citation], 

contain a degree of procedural unconscionability even without 

any notable surprises, and “bear within them the clear danger 

of oppression and overreaching.” [Citation.]’ ” (Baltazar, supra, 

62 Cal.4th at p. 1244, quoting Gentry v. Superior Court (2007) 

42 Cal.4th 443, 469.) Courts “must be ‘particularly attuned’ to 

this danger in the employment setting, where ‘economic 

pressure exerted by employers on all but the most sought-after 

employees may be particularly acute.’ ” (Baltazar, at p. 1244, 

quoting Armendariz, supra, 24 Cal.4th at p. 115; see also Kho, 

supra, 8 Cal.5th at p. 127.) Thus, although adhesion alone 

generally indicates only a low degree of procedural 

unconscionability, the potential for overreaching in the 

employment context warrants close scrutiny of the contract’s 

terms. 

B. Substantive Unconscionability

A court should consider substantive unconscionability 

only after procedural unconscionability has been established. A 

“conclusion that a contract contains no element of procedural 

unconscionability is tantamount to saying that, no matter how 

one-sided the contract terms, a court will not disturb the 

contract because of its confidence that the contract was 

negotiated or chosen freely, that the party subject to a seemingly 

one-sided term is presumed to have obtained some advantage 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

9

from conceding the term or that, if one party negotiated poorly, 

it is not the court’s place to rectify these kinds of errors or 

asymmetries.” (Gentry v. Superior Court (2007) 42 Cal.4th 443, 

470.)

As we observed in Baltazar, supra, 62 Cal.4th 1237, the 

unconscionability doctrine “ ‘ensures that contracts . . . do not 

impose terms that have been variously described as “ ‘ “overly 

harsh” ’ ” [citation], “ ‘unduly oppressive’ ” [citation], “ ‘so onesided as to “shock the conscience” ’ ” [citation], or “unfairly onesided” [citation]. All of these formulations point to the central 

idea that the unconscionability doctrine is concerned not with “a 

simple old-fashioned bad bargain” [citation], but with terms that 

are “unreasonably favorable to the more powerful party” 

[citation].’ ” (Baltazar, at p. 1244, quoting Sonic-Calabasas A, 

Inc. v. Moreno (2013) 57 Cal.4th 1109, 1145 (Sonic).) 

“ ‘Commerce depends on the enforceability, in most instances, of 

a duly executed written contract. A party cannot avoid a 

contractual obligation merely by complaining that the deal, in 

retrospect, was unfair or a bad bargain. Not all one-sided 

contract provisions are unconscionable; hence the various 

intensifiers in our formulations: “overly harsh,” “unduly 

oppressive,” “unreasonably favorable.” [Citation.] [¶] The 

ultimate issue in every case is whether the terms of the contract 

are sufficiently unfair, in view of all relevant circumstances, 

that a court should withhold enforcement.’ ” (Baltazar, at p. 

1245, quoting Sanchez v. Valencia Holding Co., LLC (2015) 61 

Cal.4th 899, 911−912 (Sanchez).) 

The Court of Appeal concluded that four aspects of the 

Agreement were substantively unconscionable: (1) the lack of 

mutuality in the covered and excluded claims provisions; (2) the 

shortened limitations periods for filing; (3) the limited number 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

10

of permitted depositions; and (4) the potential for an unlawful 

award of attorney fees. We discuss these in turn. 

1. Covered and Excluded Claims 

Ramirez asserted the Agreement was unconscionable 

because it compelled arbitration of claims more likely to be 

brought by an employee and excluded claims more likely to be 

brought by Charter. The trial court rejected the argument, but 

the Court of Appeal did not. It held the lack of mutuality in the 

Agreement’s covered and excluded claims clauses was 

substantively unconscionable. We agree. 

An arbitration agreement need not “mandate the 

arbitration of all claims between” the parties. (Armendariz, 

supra, 24 Cal.4th at p. 120.) However, if an agreement singles 

out certain claims for arbitration, there must be “mutuality.” 

(Ibid.) The agreement cannot require “one contracting party, 

but not the other, to arbitrate all claims arising out of the same 

transaction or occurrence or series of transactions or 

occurrences.” (Ibid.; see also Pinnacle, supra, 55 Cal.4th at pp. 

248−249.) Instead, a “ ‘modicum of bilaterality’ ” is required. 

(Armendariz, at p. 117.) Armendariz explained: “Given the 

disadvantages that may exist for plaintiffs arbitrating disputes, 

it is unfairly one-sided for an employer with superior bargaining 

power to impose arbitration on the employee as plaintiff but not 

to accept such limitations when it seeks to prosecute a claim 

against the employee, without at least some reasonable 

justification for such one-sidedness based on ‘business 

realities’ . . . If the arbitration system established by the 

employer is indeed fair, then the employer as well as the 

employee should be willing to submit claims to arbitration. 

Without reasonable justification for this lack of mutuality, 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

11

arbitration appears less as a forum for neutral dispute 

resolution and more as a means of maximizing employer 

advantage. Arbitration was not intended for this purpose.” (Id. 

at pp. 117–118.) “Although parties are free to contract for 

asymmetrical remedies and arbitration clauses of varying 

scope, . . . the doctrine of unconscionability limits the extent to 

which a stronger party may, through a contract of adhesion, 

impose the arbitration forum on the weaker party without 

accepting that forum for itself.” (Id. at p. 118.) 

As Armendariz made clear, unconscionability turns on 

both a one-sided result and the absence of justification for it. 

(Armendariz, supra, 24 Cal.4th at pp. 117−118.) We held “that 

an employer may not impose a system of arbitration on an 

employee that seeks to maximize the advantages and minimize 

the disadvantages of arbitration for itself at the employee’s 

expense,” but we also “emphasize[d] that if an employer does 

have reasonable justification for the arrangement — i.e., a 

justification grounded in something other than the employer’s 

desire to maximize its advantage based on the perceived 

superiority of the judicial forum — such an agreement would not 

be unconscionable.” (Id. at p. 120.) In the absence of 

justification, we assume the agreement is unconscionable. 

(Ibid.) 

Section B of the Agreement identifies covered claims as

those that “will be submitted to arbitration.” The term “covered 

claims” is generally defined as “all disputes, claims, and 

controversies that could be asserted in court or before an 

administrative agency or for which you or Charter have an 

alleged cause of action related to pre-employment, employment, 

employment termination or post-employment-related claims, 

whether the claims are denominated as tort, contract, common 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

12

law, or statutory claims.” Covered claims include those 

for: (1) unlawful termination; (2) unlawful failure to hire or 

promote; (3) unlawful discrimination, harassment, or 

retaliation; (4) wage and hour disputes; (5) violations of the 

Family Medical Leave Act, the Americans with Disabilities Act, 

or other similar state laws; (6) violations of whistleblower laws 

or the Sarbanes-Oxley Act; (7) violations of the Occupational 

Health and Safety Act or other similar laws; (8) improper 

background checks; (9) collection of overpaid wages and

commissions; (10) recovery of reimbursed tuition, relocation 

expense, or unauthorized company credit card charges; and 

(11) damage to or loss of Charter property.2 The Guidelines 

2 Section B provides in full: “You and Charter mutually 

agree that the following disputes, claims, and controversies 

(collectively referred to as ‘covered claims’) will be submitted to 

arbitration in accordance with this Agreement: [¶] 1. all 

disputes, claims, and controversies that could be asserted in 

court or before an administrative agency or for which you or 

Charter have an alleged cause of action related to preemployment, employment, employment termination or postemployment-related claims, whether the claims are 

denominated as tort, contract, common law, or statutory claims 

(whether under local, state or federal law), including without 

limitation claims for: collection of overpaid wages and 

commissions, recovery of reimbursed tuition or relocation 

expense reimbursement, damage to or loss of Charter property, 

recovery of unauthorized charges on company credit card; claims 

for unlawful termination, unlawful failure to hire or failure to 

promote, wage and hour-based claims including claims for 

unpaid wages, commissions, or other compensation or penalties 

(including meal and rest break claims, claims for inaccurate 

wage statements, claims for reimbursement of expenses); 

unlawful discrimination or harassment (including such claims 

based upon race, color, national origin, sex, pregnancy, age, 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

13

identify the first eight categories of claims as “employee claims” 

and the last three as “Charter claims.” 

Section C of the Agreement generally excludes from 

arbitration “[a]ll other claims not covered under Section B.” It 

goes on to list as “specifically excluded” claims: (1) for workers’ 

compensation benefits; (2) for unemployment compensation 

benefits; (3) for violations of the National Labor Relations Act; 

(4) for violations of the Employee Retirement Income Security 

Act of 1974, or for breach of certain employee benefits or welfare 

plans; (5) arising under the Health Information Portability and 

Accountability Act of 1996; (6) arising under certain separation 

or severance agreements or noncompete agreements; (7) related 

to corrective action or other performance management that does 

religion, sexual orientation, disability, and any other prohibited 

grounds), claims for unlawful retaliation, claims arising under 

the Family Medical Leave Act, Americans with Disabilities Act 

or similar state laws, including unlawful denial of or 

interference with a leave of absence, claims for unlawful denial 

of accommodation or failure to engage in the interactive process, 

whistleblower claims, claims for violations of the SarbanesOxley Act, claims for violations of Occupational Safety and 

Health Administration or other safety or occupational health, 

whether arising before, during or after termination of your 

employment, claims related to background and any and all other 

pre-employment and employment checks, including any claims 

brought under the Fair Credit Reporting Act and/or similar 

federal, state or local statutes or ordinances; [¶] 2. all disputes, 

claims, and controversies set forth in Section B.1 above, whether 

made against Charter, or any of its subsidiaries, parent, or 

affiliated entities, or its individual officers, directors, 

shareholders, agents, managers, or employees (in an official or 

personal capacity, if such claim against the employee arises 

from or in any way relates to your pre-employment or 

employment relationship with Charter); [¶] 3. all disputes 

related to the arbitrability of any claim or controversy.” 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

14

not result in termination; (8) older than the applicable statute 

of limitations; (9) for injunctive and equitable relief “related to 

unfair competition and the taking, use or unauthorized 

disclosure of trade secrets or confidential information”; (10) for 

theft, embezzlement, or any criminal conduct; (11) covered by 

any collective bargaining or severance agreement or a written 

employment contract; (12) that were previously adjudicated; 

(13) for the assertion of any party’s intellectual property rights; 

and (14) that are “expressly non-arbitrable by statute, including 

12 USC § 5567(d)(2), 7 USC § 26(n), or 18 USC § 1514(e)(2).” 

The Guidelines classify the first eight categories of excluded 

claims as “employee claims,” the ninth, tenth, eleventh, and 

twelfth categories as “Charter claims,” and the thirteenth 

category as both an “employee” and a “Charter” claim.3 

The Court of Appeal held the Agreement “is unfairly onesided because it compels arbitration of the claims more likely to 

be brought by an employee, the weaker party, but exempts from 

arbitration the types of claims that are more likely to be brought 

by an employer, the stronger party.” For support, the Court of 

Appeal relied on Mercuro v. Superior Court (2002) 96 

Cal.App.4th 167 (Mercuro) and Fitz v. NCR Corp. (2004) 118 

Cal.App.4th 702 (Fitz). Evaluating agreements with coverage 

and exclusion clauses similar to those found in the Agreement, 

those Courts of Appeal concluded the agreements before them 

were substantively unconscionable because they “compel[led] 

arbitration of the claims employees are most likely to bring” and 

“exempt[ed] from arbitration the claims [the employer] is most 

3 The Guidelines do not identify the fourteenth category as 

either an “employee” claim or a “Charter” claim. 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

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likely to bring against its employees.” (Mercuro, at p. 176; 

accord Fitz, at pp. 724–726.) 

Here, the Court of Appeal’s finding that mutuality was 

lacking is well supported. As Charter’s own Guidelines make 

clear, a wide range of statutory and policy-based claims that 

would typically be initiated by an employee are directed into 

arbitration. On the other hand, only a small subset of claims 

that would typically be initiated by Charter are similarly 

directed. Meanwhile, the Agreement specifically excludes 

claims related to intellectual property rights and severance or 

noncompete agreements, claims for equitable relief related to 

unfair competition or the disclosure of trade secrets or 

confidential information, and claims for theft or embezzlement. 

Though the Guidelines classify the first two as “Charter” and 

“employee” claims, both are more likely to be employer-initiated. 

(See, e.g., Davis v. Kozak (2020) 53 Cal.App.5th 897, 916 (Davis); 

Fitz, supra, 118 Cal.App.4th at p. 725; Mercuro, supra, 96 

Cal.App.4th at p. 176.) Further, several of the exclusions for 

“employee claims” appear to be illusory. Workers’ compensation 

and unemployment insurance claims are excluded from 

arbitration by law. (Lab. Code, § 3602, subd. (a); see Rebolledo 

v. Tilly’s, Inc. (2014) 228 Cal.App.4th 900, 919.) Claims that 

have expired under an applicable statute of limitations cannot 

be brought in court. Thus, the contractual exclusion of those 

claims provides no additional benefit to employees. 

This lack of mutuality is indicative of substantive 

unconscionability. Charter resists this conclusion, arguing the 

Agreement is “fundamentally mutual” because it requires 

arbitration of claims Charter is likely to initiate and “exempts 

numerous types of claims that could be brought by an employee.” 

Relying on the Guidelines, Charter urges the exclusions for 
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16

claims related to intellectual property and separation 

agreements are mutual “because either Charter or a Charter 

employee could bring such claims.” That argument fails. While 

Ramirez could bring those types of claims, that remote 

possibility does not change the conclusion that the Agreement, 

as a whole, tends to exempt claims likely to be made by Charter 

while directing Ramirez’s likely claims into arbitration. As 

noted above, Armendariz requires arbitration agreements to 

have a modicum of bilaterality. (Armendariz, supra, 24 Cal.4th 

at p. 117.) But “nothing in Armendariz supports the conclusion 

that the presence of a modicum of bilaterality renders an 

agreement per se conscionable. The presence of a modicum of 

bilaterality will not save a clause that is, in practical effect, 

unjustifiably one sided.” (Cook v. University of Southern 

California (2024) 102 Cal.App.5th 312, 327.) 

Charter also argues there is nothing unfair about the 

exclusion of claims for injunctive or equitable relief based on 

unfair competition and the taking, use, or unauthorized 

disclosure of trade secrets or confidential information. Charter 

urges this exclusion is no broader than the protection provided 

by Code of Civil Procedure section 1281.8, subdivision (b), which 

allows a “party to an arbitration agreement [to] file [in court] an 

application for a provisional remedy in connection with an 

arbitrable controversy, but only upon the ground that the award 

to which the applicant may be entitled may be rendered 

ineffectual without provisional relief.” In Baltazar, supra, 62 

Cal.4th 1237, we held that an arbitration agreement that “does 

no more than recite the procedural protections already secured” 

was not substantively unconscionable. (Baltazar, at pp. 

1247−1248.) We held this was so “regardless of whether [the 

defendant was], practically speaking, more likely to seek 
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Opinion of the Court by Corrigan, J.

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provisional remedies than its employees,” because “simply 

reciting the parties’ rights under section 1281.8 does not place 

[the plaintiff] at an unfair disadvantage.” (Baltazar, at p. 1248.) 

Contrary to Charter’s assertion, the exclusion’s language

exceeds the protections offered by the Code of Civil Procedure 

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

is instructive. There, an arbitration agreement required an 

employee to arbitrate all disputes she had with her employer but 

allowed the employer to obtain an injunction to restrain the 

employee from breaching the agreement’s nondisclosure and 

exclusive use provisions. (Carbajal, at p. 249.) The employer 

argued the carve-out for injunctive relief was not 

unconscionable because it only provided the employer with 

rights “already granted” by the Code of Civil Procedure section. 

(Carbajal, at p. 250.) Carbajal rejected that argument. It 

reasoned that the statute “only authorizes a party to an 

arbitration agreement to seek a preliminary injunction or other 

provisional remedy ‘upon the ground that the award to which 

the applicant may be entitled may be rendered ineffectual 

without provisional relief.’ ” (Ibid.) By contrast, “the injunctive 

relief carve-out broadly authorizes [the employer] to seek any 

type of injunctive relief in court.” (Ibid.) As in Carbajal, the 

Agreement here excludes any request for injunctive relief, 

including one for a permanent injunction, related to unfair 

competition or unauthorized use of trade secrets or confidential 

information. This type of claim is more likely to be initiated by 

Charter, and the protection provided by the exclusion goes 

beyond that provided by the Code of Civil Procedure provision. 

The finding that the claims clauses lacked mutuality is 

well supported. But that finding alone is not sufficient to 

establish unconscionability. As explained, unconscionability in 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

18

this context requires a one-sided result along with the absence 

of a justification for it. Charter offered no justification in its 

briefing, instead taking the position that the Agreement was 

“fundamentally mutual.” Neither did it urge any justification in 

the Court of Appeal. Only when prodded at oral argument

before us did Charter assert that certain claims were excluded 

from arbitration because those claims “require[d] quick action.” 

Charter explained that the Agreement is “a nationwide 

agreement,” that “not every state has a provision . . . that allows 

arbitrating parties to go into court to get . . . quick relief,” and 

that it “decided to carve out those claims in their entirety.” 

“When an appellant fails to raise an issue in the opening 

brief, raising it for the first time in a reply brief or at oral 

argument, we generally decline to address the issue or address 

it in a summary manner.” (People v. Grimes (2018) 60 Cal.4th 

729, 757.) “Obvious reasons of fairness militate against 

consideration of an issue raised” so late. (Varjabedian v. City of 

Madera (1977) 20 Cal.3d 285, 295, fn. 11.) Bearing those 

considerations in mind, we decline to address the sufficiency of 

Charter’s proffered justification. In the absence of a cognizable 

justification, properly asserted, we “must assume” the 

Agreement’s lack of mutuality is unconscionable. (See 

Armendariz, supra, 24 Cal.4th at p. 120.) 

2. Filing Time Limits 

The Agreement places time limits on the filing of covered 

claims. It requires the “aggrieved party” to “give written notice 

of the claim, in the manner required by this Agreement, within 

the time limit established by the applicable statute of 

limitations for each legal claim being asserted.” It further 

provides that, “[t]o be timely, any claim that must be filed with 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

19

an administrative agency or body as a precondition or 

prerequisite to filing the claim in court, must be filed with 

Solution Channel within the time period by which the charge, 

complaint or other similar document would have had to be filed 

with the agency or other administrative body.” 

The Court of Appeal held this provision unconscionable, 

explaining that “the outside limit to file a FEHA lawsuit” when 

the Agreement was executed “could have been as long as three 

years.”4 (Italics added.) Under the Agreement, however, a 

FEHA claim had to be filed with Solution Channel within one 

year, the applicable deadline for filing an administrative claim. 

The Court of Appeal concluded the filing limitation was 

unconscionable for two reasons. First, “it cuts the period that 

would otherwise apply to file a FEHA action in court by as much 

as two years.” Second, it raised the possibility that Ramirez 

would “be compelled to arbitrate before DFEH has completed its 

investigation and issued a ‘right-to-sue’ letter.”

The Court of Appeal was correct. It is settled that parties 

may agree, in an arbitration agreement or otherwise, to shorten 

4 The Agreement was executed in 2019. At that time, an 

employee had one year from an employer’s discriminatory act to 

file a FEHA claim with DFEH. (Baxter v. Genworth North 

America Corp. (2017) 16 Cal.App.5th 713, 730 (Baxter).) DFEH 

then had up to one year from the filing of the claim to complete 

its investigation and issue a right-to-sue letter. (Gov. Code., 

§ 12965, subd. (c)(1)(A).) The employee then had one year after 

the issuance of the right-to-sue letter to file a lawsuit alleging 

the FEHA claims set out in the administrative claim. (Baxter, 

at p. 730.) A 2020 amendment extended “the time for filing [an 

administrative FEHA] claim to three years from the date of the 

challenged conduct.” (Brome v. Dept. of the California Highway 

Patrol (2020) 44 Cal.App.5th 786, 793, fn. 2.) 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

20

the limitations period applicable to a claim. (See Fageol Truck 

& Coach Co. v. Pacific Indemnity Co. (1941) 18 Cal.2d 748, 753; 

Ellis v. U.S. Security Associates (2014) 224 Cal.App.4th 1213, 

1222 (Ellis).) However, the shortened limitations period must 

be reasonable. (Ellis, at p. 1222; see also Baxter, supra, 16 

Cal.App.5th at p. 731.) Ellis held that an agreement imposing 

a six-month limitation on the filing of any employee claim, 

including a FEHA claim, violated public policy. (Ellis, at p. 

1225.) The court reasoned an employee would “necessarily” 

have at least two years to file a FEHA lawsuit. (Ellis, at p. 

1225.) Thus, the Legislature had determined that two years was 

“ ‘sufficient . . . for the effective pursuit of the judicial remedy.’ ” 

(Ibid., citation omitted.) By comparison, the contractual sixmonth limitations period did not give Ellis sufficient time to 

vindicate her statutory rights. (Ibid.) Further, the “shortened 

limitation period would thwart [an] aspect of the FEHA that is 

critical in some cases: the administrative enforcement by the 

DFEH itself.” (Id., at p. 1226.) The court noted the filing of an 

administrative claim was “ ‘often the only remedy for employees 

with modest salaries and small claims; they need [DFEH] 

because they are not likely to find a private lawyer to represent 

them.’ ” (Ibid., citation omitted.) The six-month limitations 

period would “effectively eliminate[] any meaningful 

participation by [DFEH].” (Ibid.) These factors rendered the 

contractual limitations period unreasonable. (Ibid.)

Baxter, supra, 16 Cal.App.5th 713 reached a similar 

conclusion. There, an employment arbitration agreement 

provided that, if a claim “requires the filing of a charge with an 

administrative agency before a court action may be instituted,” 

the deadline for an arbitration claim was “the administrative 

agency filing deadline.” (Id. at p. 730.) Thus, as in this case, a 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

21

FEHA claim had to be submitted to arbitration within one year. 

(Baxter, at p. 730.) Baxter held this shortened limitations period 

was unconscionable. (Id. at p. 732.) Following Ellis, it reasoned 

that “[r]educing the time to pursue a claim by as much as twothirds does not provide sufficient time to vindicate an 

employee’s statutory rights under [FEHA].”5 (Baxter, at p. 732.) 

The relevant circumstances here are identical to those in 

Baxter. The Agreement requires FEHA claims to be submitted 

to arbitration. The filing limitation provision requires that any 

such claim be filed with Solution Channel within the one-year 

period to submit an administrative claim to DFEH. This 

limitation truncates the period the Legislature has determined 

employees need to effectively vindicate their rights. As a result, 

it potentially deprives Charter employees of meaningful DFEH

participation. It is “problematic to require [an] employee to 

arbitrate statutory FEHA claims before an administrative 

investigation can be conducted.” (Baxter, supra, 16 Cal.App.5th 

at p. 734.) The “involvement of the DFEH serves an important 

function [and] ‘ “may be helpful . . . because it requires a prompt, 

detailed response from the employer, giving the employee a free, 

quick look at the defenses the employer is likely to raise.” ’ ” 

(Ibid., quoting Ellis, supra, 224 Cal.App.4th at p. 1226.) The 

filing limitation substantially shortens the time for fully 

pursuing a FEHA claim and may preclude a DFEH 

investigation, rendering it substantively unconscionable. 

5 Other Courts of Appeal reached similar conclusions. (See 

Magno, supra, 1 Cal.App.5th at p. 291; Penilla v. Westmont 

Corp. (2016) 3 Cal.App.5th 205, 222; Ali v. Daylight Transport, 

LLC (2020) 59 Cal.App.5th 462, 478.)
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

22

Charter lodges two arguments against this conclusion. 

First, it argues the limitation provision is ambiguous and should 

be construed in a way that renders it valid rather than 

unenforceable. According to Charter, the first sentence of the 

clause indicates that the “normal statute of limitations” applies 

to any claim submitted to arbitration, whereas the second 

sentence provides a shorter limitations period for certain claims 

that must be filed with an administrative agency before being 

filed in court. Given this “ambiguity,” Charter argues the 

provision “should be interpreted in a way to make the 

Agreement operative.” Charter relies on the rule that 

ambiguous terms in a contract should be construed in favor of 

enforceability and validity where it can be done without 

violating the parties’ intent. (See, e.g., Civ. Code, § 1643.) 

Charter urges we should construe the provision to allow an 

employee the same time to file a FEHA claim in arbitration as 

he or she would normally have to file such a claim in court. 

We reject this strained interpretation. The principle

Charter cites applies when a contract contains a genuine 

ambiguity. (Roman v. Superior Court (2009) 172 Cal.App.4th 

1462, 1473 (Roman).) It does not apply when ambiguity is 

absent. “[W]hen the language of a contract is plain and 

unambiguous it is not within the province of a court to rewrite 

or alter by construction what [the parties have] agreed upon.” 

(Crow v. P.E.G. Construction Co. (1957) 156 Cal.App.2d 271, 

278.) The relevant language is plain and unambiguous. The 

first sentence creates a general limitations period for all claims 

covered by the Agreement. The second sentence creates a 

specific limitations period, applicable to any claim that must be 

filed with an administrative agency before being filed in court. 

That type of claim must be filed with Solution Channel by the 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

23

deadline for submitting the administrative claim. We cannot 

rewrite or alter by construction the unambiguous terms the 

parties agreed upon. 

Second, Charter argues the filing limitation had no impact 

on Ramirez in the context of this case because she sought an 

immediate right-to-sue letter and relinquished her right to a 

DFEH investigation. Stated differently, Charter argues that 

even if the clause might create unconscionable results in some 

instances, it did not do so for Ramirez. But whether a contract 

“works unconscionable hardship is determined with reference to 

the time when the contract was made” and cannot be resolved 

in hindsight, “considering circumstances of which the 

contracting parties were unaware.” (Yeng Sue Chow, supra, 49 

Cal.App.3d at p. 325.) Charter’s reliance on post-formation 

circumstances violates this principle. Moreover, FEHA 

protections “are for the benefit of the entire public, not just [this] 

plaintiff[].” (Wherry v. Award, Inc. (2011) 192 Cal.App.4th 1242, 

1249 (Wherry); see also Ellis, supra, 224 Cal.App.4th at p. 1220.) 

FEHA’s protections, including its limitations periods, cannot be 

abrogated by private agreement. As Civil Code section 3513 

provides: “Any one may waive the advantage of a law intended 

solely for his benefit. But a law established for a public reason 

cannot be contravened by a private agreement.”6 

6 Charter argues that, even if the filing limitation was 

unconscionable when the deadline for filing an administrative 

claim was one year, it is no longer so because the deadline for 

filing an administrative claim is now three years. (See ante, p. 

19, fn. 4.) Again, an unconscionability evaluation looks to when

the contract was made. Here, the Agreement was executed in 

2019, when the applicable deadline for filing an administrative 

claim was one year. 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

24

3. Limits on Discovery

Under the Agreement, an “arbitrator will decide all 

discovery disputes related to the arbitration.” The Guidelines 

provide greater detail in three paragraphs under the heading 

“Exchanging Information and Preparing for Hearing.” The 

parties are allowed 90 days “to exchange information and take 

depositions.” During that time, each party is “permitted to take 

up to four (4) depositions and allowed up to 20 total 

interrogatories (including subparts) and up to 15 total requests 

for documents to the other party.” Any “disagreements 

regarding the exchange of information or depositions will be 

resolved by the arbitrator to allow a full and equal opportunity 

to all parties to present evidence that the arbitrator deems 

material and relevant to the resolution of the dispute.” 

Armendariz, supra, 24 Cal.4th 83 provided a standard 

that many cases have used to evaluate the validity of discovery 

limits. A brief review will provide context. The Armendariz

plaintiffs sued their employer for FEHA violations, and the 

employer moved to compel arbitration. (Armendariz, at p. 92.) 

In opposition, the plaintiffs first argued that a mandatory 

agreement to arbitrate claims arising under a state 

antidiscrimination statute, like FEHA, is prohibited. We 

rejected that broad argument, but held that arbitration of a 

claim based on nonwaivable statutory civil workplace rights 

could only be compelled if the agreement satisfied five minimum 

requirements. Such an agreement “is lawful if it ‘(1) provides 

for neutral arbitrators, (2) provides for more than minimal 

discovery, (3) requires a written award, (4) provides for all types 

of relief that would otherwise be available in court, and (5) does 

not require employees to pay either unreasonable costs or any 

arbitrators’ fees or expenses as a condition of access to the 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

25

arbitration forum.’ ”

7

 (Armendariz, at p. 102, quoting Cole v. 

Burns Intern. Security Services (D.C. Cir. 1997) 105 F.3d 1465, 

1482.)

As to discovery, we stated that parties to an arbitration 

clause can agree “to something less than the full panoply of 

discovery provided” in the Code of Civil Procedure (Armendariz, 

supra, 24 Cal.4th at pp. 105−106), but that “adequate discovery 

is indispensable for the vindication of FEHA claims” 

(Armendariz, at p. 104).8 Although the Armendariz agreement 

contained no discovery provision at all (id. at p. 92), we 

concluded the absence of such a provision did not automatically 

render the plaintiff’s FEHA claim inarbitrable. (Armendariz, at 

p. 106.) Instead, we “infer[red] that when parties agree to 

arbitrate statutory claims, they also implicitly agree, absent 

7 Charter criticizes the Court of Appeal for failing to address 

the Agreement’s purported compliance with Armnedariz’s five 

requirements. As Fitz, supra, 118 Cal.App.4th 702, explained, 

“[t]he Armendariz requirements are an application of general 

state law contract principles regarding the unwaivability of 

public rights in the arbitration context.” (Fitz, at p. 713.) To be 

enforceable, an agreement to arbitrate “public rights” — which 

are those rights “that affect ‘ “society at large” rather than the 

individual’ and include discrimination claims under FEHA” 

(Fitz, at p. 711) — “must satisfy the Armendariz requirements” 

and “must be conscionable” (Fitz, at p. 713). Here, Ramirez only 

challenged enforcement on unconscionability grounds. Whether 

an agreement satisfies Armendariz’s requirements may inform 

the determination whether it or any of its provisions is 

unconscionable, but the two inquiries are distinct. This may 

explain why the Court of Appeal did not separately address the 

Agreement’s purported compliance with Armendariz. 

8 Code of Civil Procedure section 1283.05 establishes rules 

regarding discovery that can be obtained in arbitration 

proceedings under the CAA. 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

26

express language to the contrary, to such procedures as are 

necessary to vindicate that claim.” (Ibid., italics added.) 

Accordingly, we held that “whether or not the employees [were] 

entitled to the full range of discovery provided in Code of Civil 

Procedure section 1283.05, they are at least entitled to discovery 

sufficient to adequately arbitrate their statutory claim, 

including access to essential documents and witnesses, as 

determined by the arbitrator(s).”9 (Armendariz, at p. 106.) 

Armendariz stands for the principle that an arbitration 

agreement required as a condition of employment must 

generally permit employees sufficient discovery to adequately 

arbitrate any statutory claims. The scope of what discovery is 

sufficient is determined by the arbitrator. Here, Ramirez 

argued the discovery provision was substantively 

unconscionable because it allowed for only four depositions 

while she would need at least seven to substantiate her claims.10 

The trial court rejected her argument, but the Court of Appeal 

did not. It reasoned that while Ramirez had estimated, without 

dispute from Charter, that she needed to take at least seven 

depositions, the discovery provision limited her to four and the 

9 Armendariz held that the arbitration agreement there was 

unconscionable and unenforceable because it lacked mutuality 

and did not permit recovery of the full range of damages 

normally available to a plaintiff under FEHA. (Armendariz, 

supra, 24 Cal.4th at pp. 120−121.) The opinion did not address 

the unconscionability of any contractual discovery limits or lack 

thereof. (Id. at pp. 113−121.) 

10 Ramirez stated she would need to depose her former 

supervisor, a human resources representative, the four people 

hired by her former supervisor during her pregnancy leave, and 

the person most knowledgeable at Charter regarding its human 

resources and pregnancy leave policies. 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

27

arbitrator had no authority to expand that number. As a result, 

it concluded the authorized discovery was inadequate to permit 

a fair pursuit of her claims. 

One difficulty with that analysis is that the Court of 

Appeal looked to specific circumstances that only arose after the 

contract was executed. As noted, an unconscionability 

assessment focuses on circumstances known at the time the 

agreement was made. (Yeng Sue Chow, supra, 49 Cal.App.3d at 

p. 325.) The Court of Appeal acknowledged this general 

principle, but reasoned that other courts had “consistently 

assessed unconscionability for limitations on discovery as 

applied to a particular plaintiff.” The Court of Appeal is correct 

that several appellate decisions have assessed the 

unconscionability of discovery provisions in the manner 

described. (See Baxter, supra, 16 Cal.App.5th at pp. 727–730; 

see also De Leon v. Pinnacle Property Management Services LLC

(2021) 72 Cal.App.5th 476, 489; Davis, supra, 53 Cal.App.5th 

897, 912; Torrecillas, supra, 52 Cal.App.5th at p. 497; Sanchez 

v. Carmax Auto Superstores California, LLC (2014) 224 

Cal.App.4th 398, 405–406; Ontiveros v. DHL Express (USA), Inc.

(2008) 164 Cal.App.4th 494, 513–514 (Ontiveros).) This 

approach to addressing unconscionability challenges to 

discovery clauses in arbitration agreements seems to be taking 

hold, and it clearly looks to post-contract formation 

circumstances. We disapprove this line of reasoning. 

The assessment of whether a discovery clause is 

unconscionable should focus on general factors that can be 

examined without relying on subsequent developments. Those 

factors include the types of claims covered by the agreement, the 

amount of discovery allowed, the degree to which that amount 

may differ from the amount available in conventional litigation, 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

28

any asymmetries between the parties with regard to discovery, 

and the arbitrator’s authority to order additional discovery. As 

Kho, supra, 8 Cal.5th 111 explained, “a substantive 

unconscionability analysis is sensitive to ‘the context of the 

rights and remedies that otherwise would have been available 

to the parties.’ [Citation.] We must examine both the features 

of the dispute resolution adopted as well as the features 

eliminated.” (Id. at p. 130.) Allowing the arbitrator to deviate 

from agreed-upon default discovery limits ensures that neither 

party will be unfairly hampered in pursuing a statutory claim 

based on circumstances that arise post-formation. We note that 

giving the arbitrator authority to expand discovery based on 

Armendariz’s requirement is one way the adequacy concern can 

be addressed. We do not foreclose other formulations that 

ensure adequate discovery to vindicate a specific claim.

The second difficulty with the Court of Appeal’s analysis 

is that it misinterpreted the scope the arbitrator’s authority. As 

mentioned, the Agreement states the “arbitrator will decide all 

discovery disputes related to the arbitration” and the Guidelines 

provide that “[a]ny disagreements regarding the exchange of 

information or depositions will be resolved by the arbitrator to 

allow a full and equal opportunity to all parties to present 

evidence that the arbitrator deems material and relevant to the 

resolution of the dispute.” The Court of Appeal held that 

language empowered the arbitrator to resolve disagreements as 

to “things like the identity of persons sought to be deposed, 

objections made during depositions, and the dates, location, and 

duration of depositions,” but not to order additional depositions. 

There is no compelling reason to construe the applicable 

provisions in such a limited way. While the language could have 

been more precise, it seems clear the Agreement and the 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

29

Guidelines give the arbitrator the authority to resolve “all 

discovery disputes” in a manner that allows “a full and equal 

opportunity” to discover and present relevant and material 

evidence. Understood in this way, if the arbitrator determined 

additional depositions were necessary to satisfy the Armendariz

requirement, the Guidelines would permit the arbitrator to 

order expanded discovery. Normally, we assume the arbitrator 

will act reasonably and in conformity with the law. (Dotson, 

supra, 181 Cal.App.4th at p. 981.) 

At a minimum, the clause is ambiguous as to whether the 

arbitrator can order additional discovery. Where a contract is 

susceptible to two interpretations, one which renders it valid 

and the other which renders it void, a court should select the 

interpretation that makes the contract valid. (Civ. Code, 

§§ 1643, 3541; see also Hammond v. Haskell (1910) 14 Cal.App. 

522, 526.) Construing the Agreement and Guidelines to prevent 

the arbitrator from ordering additional discovery deemed 

appropriate could render the provisions invalid under 

Armendariz. (See Fitz, supra, 118 Cal.App.4th at pp. 717−719.) 

However, if construed to allow the arbitrator to order additional 

discovery as needed to allow a full and fair exploration of the 

issues in dispute, the discovery provisions would be valid. (See 

Armendariz, supra, 24 Cal.4th at p. 106; see also Roman, supra, 

172 Cal.App.4th at pp. 1475−1476; Dotson, supra, 181 

Cal.App.4th at pp. 982−984.) Even if we were to assume for the 

sake of argument that the Agreement and the Guidelines are 

susceptible to either interpretation, we would conclude the 

arbitrator has authority to order additional discovery if the 

arbitrator determines that action is necessary to allow fair 

arbitration of the claim. Such an interpretation of the 

provisions eliminates any unconscionability. 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

30

4. Award of Interim Attorney Fees

Under Section K of the Agreement, the parties agreed 

“that the failure or refusal of either party to submit to 

arbitration as required by this Agreement will constitute a 

material breach of this Agreement. If any judicial action or 

proceeding is commenced in order to compel arbitration, and if 

arbitration is in fact compelled or the party resisting submits to 

arbitration following the commencement of the action or 

proceeding, the party that resisted arbitration will be required 

to pay to the other party all costs, fees and expenses that they 

incur in compelling arbitration, including, without limitation, 

reasonable attorneys’ fees.” The trial court found this clause 

was “unusual, lack[ed] mutuality, and produce[d] overly harsh 

results.” The Court of Appeal agreed, holding the clause is 

unenforceable because it violates FEHA’s asymmetric rule 

regarding awards of costs and fees. We agree with the courts 

below that the clause has the potential to result in an unlawful 

award of attorney fees and is substantively unconscionable. 

“Several well-established rules govern [the] imposition of 

fees and costs incurred in actions under” FEHA. (Patterson, 

supra, 70 Cal.App.5th at p. 477.) FEHA grants a trial court 

discretion to award “reasonable attorney’s fees and costs” to “the 

prevailing party.” (Gov. Code, § 12965, subd. (c)(6).) However, 

it also provides that “a prevailing defendant shall not be 

awarded fees and costs unless the court finds the action was 

frivolous, unreasonable, or groundless when brought, or the 

plaintiff continued to litigate after it clearly became so.” (Gov. 

Code, § 12965, subd. (c)(6), italics added.) The legislative intent 

behind this asymmetric rule is “clear[:] To allow a prevailing 

FEHA defendant to collect fees and costs . . . when the plaintiff 

brought a potentially meritorious suit that ultimately did not 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

31

succeed would undercut the Legislature’s intent to promote 

vigorous enforcement of our civil rights laws.” (Pollock v. TriModal Distribution Services, Inc. (2021) 11 Cal.5th 918, 949.) 

Armendariz, supra, 24 Cal.4th 83 articulated a second rule 

governing FEHA fees and costs. “[W]hen an employer imposes 

mandatory arbitration as a condition of employment, the 

arbitration agreement or arbitration process cannot generally 

require the employee to bear any type of expense that the 

employee would not be required to bear if he or she were free to 

bring the action in court.” (Armendariz, at pp. 110−111.) We 

reasoned that this rule would “ensure that employees bringing 

FEHA claims will not be deterred by costs greater than the 

usual costs incurred during litigation.” (Id. at p. 111.) 

Read together, the statutes and Armendariz make clear 

that an arbitration agreement imposed as a condition of 

employment cannot require an employee to pay attorney fees to 

the employer in the arbitration of a statutory claim, unless the 

arbitrator finds that the action was frivolous, unreasonable, or 

groundless when brought, or that the employee continued to 

litigate after it clearly became so. The Court of Appeal correctly 

concluded that Section K could violate the dictates of FEHA and 

Armendariz. The provision unambiguously requires an award 

of attorney fees, even if the moving party is a defendant in a 

FEHA action and the arbitrator has made no finding of frivolity,

groundlessness, or continued litigation. Permitting payment of 

attorney fees in these circumstances would be inconsistent with 

Armendariz’s directive that a mandatory arbitration agreement 

cannot require employees to bear any expense that they would 

not be required to bear if they were able to bring the action in 

court. The provision thus creates a potential obligation to pay 

costs only in an arbitral setting. The provision would also 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

32

undermine the public policy embodied in FEHA’s asymmetric 

rule. As a result, the clause is unconscionable. 

Moreover, an unconscionability evaluation “often requires 

inquiry into the ‘commercial setting, purpose, and effect’ of the 

contract or contract provision.” (Sanchez, supra, 61 Cal.4th at 

p. 911.) Here, the potential effects of Section K support a finding 

of unconscionability because the clause does not take into 

account a situation in which some arguments made by the 

resisting party are successful. It is possible that a court could 

find parts of the Agreement unconscionable, sever those parts 

from the Agreement, and enforce the remainder by compelling 

arbitration. In such a case, Charter could argue that Section K

should be read to require Ramirez to pay Charter’s fees and 

costs because “arbitration [would] in fact [have been] 

compelled.” In other words, Charter could urge that Ramirez 

should be required to pay Charter’s attorney fees even if she 

successfully asserted that parts of the Agreement as written 

were unenforceable, but the court cured those defects by 

severing the offending provisions. Though we take no view here 

on whether Charter would prevail, the possibility of such an 

outcome could chill an employee’s right to challenge the 

enforceability of an arbitration agreement. (See Civ Code, 

§ 1281.2; see also Sargon Enterprises, Inc. v. Browne George 

Ross LLP (2017) 15 Cal.App.5th 749, 770.) 

Charter resists this conclusion, relying on Patterson, 

supra, 70 Cal.App.5th 473, which interpreted the same 

agreement involved here. Patterson sued Charter, alleging 

FEHA violations, and Charter moved to compel arbitration. 

Patterson opposed, arguing the Agreement was unconscionable 

and unenforceable. Unlike this case, the trial court granted the 
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Opinion of the Court by Corrigan, J.

33

motion to compel.11 (Patterson, at pp. 478−479.) The trial court 

then granted Charter’s attorney fee request, reasoning that 

FEHA’s asymmetric rule did not apply. (Patterson, at p. 480.) 

Patterson sought relief via a second petition for writ of mandate, 

arguing the fee award violated FEHA’s asymmetric attorney fee 

rule. (Patterson, at p. 480.) 

The Court of Appeal began by clarifying the issue to be 

resolved. The court noted it was not reviewing the order 

compelling the parties to arbitrate. (Patterson, supra, 70 

Cal.App.5th at p. 486, fn. 5.) Rather, it assumed the Agreement 

was enforceable and addressed the validity of the fee award. (Id. 

at pp. 484−486.) As to that question, the court held that, where 

“there is no other contract issue . . . to be resolved [and] [t]he 

only contract dispute [is] the enforceability of the arbitration 

agreement,” the prevailing party “is entitled to its fees under 

[Section K] to the extent not otherwise prohibited or limited by 

FEHA.” (Id. at p. 486, italics added.) 

Patterson went on to consider how FEHA’s asymmetric 

rule applied. Several appellate decisions have held that 

arbitration agreements covering FEHA claims were 

unconscionable because they authorized the recovery of attorney 

fees by the prevailing party or required each party to bear its 

own fees and costs, rather than adopting FEHA’s asymmetric 

rule. (See Patterson, supra, 70 Cal.App.5th at p. 488, citing 

Trivedi v. Curexo Technology Corp. (2010) 189 Cal.App.4th 387, 

395, disapproved on another ground in Baltazar v. Forever 21, 

Inc., supra, 62 Cal.4th at p. 1246; accord Wherry, supra, 192 

11 The Court of Appeal summarily denied Patterson’s 

petition for writ of mandate challenging that ruling. (Patterson, 

supra, 70 Cal.App.5th at p. 479.) 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

34

Cal.App.4th at p. 1249; Serpa, supra, 215 Cal.App.4th at pp. 

709−710.) Analogizing to those cases, Patterson reasoned that 

“[p]ermitting Charter to recover its attorney fees for a successful 

motion to compel arbitration in a pending FEHA lawsuit[,] 

without a showing the plaintiff’s [opposition] was objectively 

groundless,” would deny the “plaintiff the rights guaranteed by 

[FEHA] with a corresponding chill on access to the courts for any 

employee or former employee who has an arguably meritorious 

argument that the [Agreement] is unenforceable. Even with a 

strong claim of unconscionability, [the] employee might not 

pursue it and risk a substantial award of attorney fees before 

arbitration begins.” (Patterson, at p. 489.) Citing the “strong 

public policy favoring arbitration” and “the requirement we 

interpret the provisions in a contract in a manner that render[s] 

them legal rather than void when possible,” the Court of Appeal 

construed Section K “to impliedly incorporate [FEHA’s] 

asymmetric rule for awarding attorney fees and costs.” 

(Patterson, at p. 490.) The court cited Armendariz, supra, 24 

Cal.4th 83, Pearson Dental Supplies, Inc. v. Superior Court

(2010) 48 Cal.4th 665 (Pearson Dental), and Roman, supra, 172 

Cal.App.4th 1462 for support. Construed in that manner, 

Patterson stated the provision would “preclude an award of 

attorney fees and costs to Charter following a successful motion 

to compel arbitration absent a showing that [the employee’s] 

opposition to the motion was frivolous, unreasonable or 

groundless.” (Patterson, at p. 490.) The matter was then 

remanded to the trial court with directions to vacate its fee 

award and “conduct a hearing to make the required findings” if 

Charter continued to pursue its request. (Ibid.) 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

35

Charter urges us to construe Section K of the Agreement 

as Patterson did.12 Even if we conclude the clause may conflict 

with FEHA’s asymmetric rule in some instances, Charter urges

us to interpret the provision to “render it lawful by reading it to 

only allow attorneys’ fees where the plaintiff’s opposition to the 

motion to compel arbitration was frivolous or groundless.” 

Charter cites Civil Code sections 1643 and 3541, along with the 

cases cited by Patterson, for support.

Charter’s reliance on Patterson is misplaced for several 

reasons. First, Patterson did not expressly hold that Section K 

complies with FEHA. The court noted it had summarily denied 

the plaintiff’s writ petition challenging the order compelling 

arbitration, and that the order would “be reviewable on appeal 

from a final judgment.” (Patterson, supra, 70 Cal.App.5th at p. 

486, fn. 5.) The summary denial of a petition for writ of mandate 

generally is not res judicata as to the legal issues presented (see 

Hagan v. Superior Court (1962) 57 Cal.2d 767, 770) and it is 

“ ‘axiomatic that cases are not authority for propositions not 

considered’ ” (Sonic, supra, 57 Cal.4th at p. 1160). Patterson

does not stand for the proposition that Section K is conscionable. 

On the contrary, Patterson’s reasoning suggests the 

provision is not enforceable in all its potential applications. To 

12 In the alternative, Charter argues that Section K is not 

unconscionable “because it is outside of FEHA’s purview.” 

According to Charter, the clause “deals with the enforcement of 

the Agreement, not with the underlying FEHA action.” We 

disagree. The Agreement covers a variety of claims, including 

FEHA claims. Section K authorizes an award of attorney fees 

on a motion to compel arbitration of a covered claim. FEHA 

limits the availability of fee and cost awards to prevailing 

defendants in FEHA actions. To the extent Section K tests those 

limits in a FEHA-based claim, it is within FEHA’s purview.
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

36

bring Section K into compliance with FEHA, Patterson

construed the clause as if it incorporated an exception modeled 

on FEHA’s asymmetric cost and fee rule. Under Patterson’s 

construction, the provision would allow Charter to recover 

attorney fees it incurred in compelling arbitration of a FEHA 

claim, but only if the employee’s opposition to Charter’s motion 

to compel was found frivolous, unreasonable, or groundless. 

Patterson did not conclude Section K is enforceable as written. 

At most, it stands for the proposition that an attorney fee award 

to Charter could be lawful if additional findings, not required by 

the Agreement, were made.

Second, the authorities Patterson relied on in interpreting

Section K do not support its construction. Patterson cited Civil 

Code sections 1643 and 3541. Civil Code section 3541 sets out a 

maxim of jurisprudence, applicable to all contracts, stating a 

preference for “[a]n interpretation which gives effect” over “one 

which makes void.” Civil Code section 1643 establishes a rule 

of contract interpretation, requiring a contract to “receive such 

an interpretation as will make it lawful, operative, definite, 

reasonable, and capable of being carried into effect, if it can be 

done without violating the intention of the parties.” We have 

previously applied these code sections here, when addressing 

any potential ambiguity in the applicable discovery provisions. 

Section K, however, is not ambiguous. It clearly requires

payment of attorney fees to a party who successfully compels 

arbitration. The payment obligation is unqualified. Civil Code 

sections 1643 and 3541 state a legislative preference for an 

interpretation that is lawful, valid, and effective, but that 

preference is circumscribed by the parties’ clearly agreed-upon 

language. Patterson’s interpretation is inconsistent with the 

statutes upon which it relied. (See Serpa, supra, 215 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

37

Cal.App.4th at p. 709 [declining to read FEHA’s asymmetric 

rule into an arbitration agreement that unambiguously required 

each party to bear its own attorney fees].) 

Patterson also cited Armendariz, supra, 24 Cal.4th 83, 

Pearson Dental, supra, 48 Cal.4th 665, and Roman, supra, 172 

Cal.App.4th 1462 to support its construction. According to 

Patterson, Pearson Dental and Roman stand for the proposition 

that courts must interpret contract provisions in a manner that 

“render[s] them legal rather than void when possible.” 

(Patterson, supra, 70 Cal.App.5th at p. 490.) This

characterization sweeps too broadly. Indeed, Roman and 

Pearson Dental are consistent with our interpretation of Section 

K. If a contractual provision is ambiguous, and one 

interpretation would render it valid while another would render 

it void, a court should select the interpretation that renders it

valid. (Roman, at p. 1473; Pearson Dental, at p. 682; Civ. Code,

§§ 3541, 1643.) Neither case suggests a court can construe an 

unambiguous contractual clause to mean something it does not 

say, in violation of the parties’ clear and agreed-upon language.

Patterson also suggested its contractual interpretation 

was consistent with our approach in Armendariz. (Patterson, 

supra, 70 Cal.App.5th at p. 490.) Again, the characterization of 

Armendariz is overbroad. As mentioned, Armendariz held “that 

a mandatory employment arbitration agreement that contains 

within its scope the arbitration of FEHA claims impliedly 

obliges the employer to pay all types of costs that are unique to 

arbitration.” (Armendariz, supra, 24 Cal.4th at p. 113.) The 

Armendariz agreement contained no provision governing 

arbitration costs. (Ibid.) In light of the agreement’s silence on 

the subject, Armendariz inferred that the parties had agreed to 

allocate costs, expenses, and fees in a manner consistent with 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

38

applicable legal standards. Armendariz did not rewrite the 

contract to avoid the unconscionability embedded in its 

unambiguous terms. It inferred the agreement complied with 

applicable legal standards precisely because the parties had not 

unambiguously agreed otherwise. 

Finally, Patterson suggested its interpretation was 

supported by the “strong public policy favoring arbitration.” 

(Patterson, supra, 70 Cal.App.5th at p. 490.) But that policy 

“make[s] ‘arbitration agreements as enforceable as other 

contracts, . . . not more so.’ ” (Morgan v. Sundance, Inc. (2022) 

596 U.S. 411, 418 [142 S.Ct 1708, 1713].) Section K is 

unconscionable because it unambiguously violates FEHA. The 

policy favoring arbitration cannot save it.13 Patterson v. 

13 In its opinion, the Court of Appeal expressed concern 

about the second sentence of Section K of the Agreement, which 

states that, aside from administrative fees and the arbitrator’s 

fees and expenses, “[a]ll other costs, fees and expenses 

associated with the arbitration, including without limitation 

each party’s attorneys’ fees, will be borne by the party” incurring 

them. The court was concerned the clause might “deprive[] an 

employee of his or her statutory right to recover attorney fees if 

the employee prevails on a FEHA claim.” However, because 

neither party had questioned the validity of that part of Section 

K, the Court of Appeal did not delve into the matter. The parties 

likewise did not address the question in their briefing here. 

Amicus curiae Jamin Soderstrom has done so in an amicus brief. 

He also urges that three more of the Agreement’s provisions are 

unconscionable: (1) Section D, which deals with the capacity in 

which each party may file covered and excluded claims; 

(2) Section L, which deals with the parties’ jury trial rights; and 

(3) Section Q, which is a severance clause. Ramirez has not 

challenged the enforceability of any of those provisions here. We 

express no view on their validity or enforceability. The Court of 

Appeal remains free on remand to entertain supplemental 

briefing if it deems such briefing will be helpful to its review.
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

39

Superior Court, supra, 70 Cal.App.5th 473 is disapproved to the 

extent it is inconsistent with the views expressed herein.

C. Severance

Civil Code section 1670.5, enacted in 1979, “codifie[s] the 

principle that a court can refuse to enforce an unconscionable 

provision in a contract.” (Armendariz, supra, 24 Cal.4th at p. 

114.) It provides: “If the court as a matter of law finds the 

contract or any clause of the contract to have been 

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

enforce the contract, or it may enforce the remainder of the 

contract without the unconscionable clause, or it may so limit 

the application of any unconscionable clause as to avoid any 

unconscionable result.” (Civ. Code, § 1670.5, subd. (a).) If a 

contractual clause is found unconscionable, the court may, in its 

discretion, choose to do one of the following: (1) refuse to enforce 

the contract; (2) sever any unconscionable clause; or (3) limit the 

application of any clause to avoid unconscionable results. 

(Farrar v. Direct Commerce, Inc. (2017) 9 Cal.App.5th 1257, 

1273−1274 (Farrar).) The “strong legislative and judicial 

preference is to sever the offending term and enforce the balance 

of the agreement.” (Roman, supra, 172 Cal.App.4th at p. 1477.) 

Though 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 unconscionability.” (Armendariz, 

supra, 24 Cal.4th at p. 122.) The trial court’s decision to act as 

Civil Code section 1670.5 permits is reviewed for abuse of 

discretion. (Murphy v. Check ’N Go of California, Inc. (2007) 156 

Cal.App.4th 138, 144 (Murphy).) 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

40

Here, the trial court found three aspects of the Agreement 

unconscionable: the time limits imposed on the filing of certain 

claims; the allowance for an award of attorney fees to Charter 

without a finding the plaintiff’s claim was frivolous or 

groundless; and the allowance for an award of attorney fees for 

a successful motion to compel arbitration. Noting that there was 

“ ‘more than one unlawful provision’ ” and “that ‘there [was] no 

single provision a court can strike or restrict in order to remove 

the unconscionable taint from the agreement,’ ” the court 

determined that severance was improper and refused to enforce 

the Agreement. The Court of Appeal affirmed that decision. It 

reasoned that severance “may be properly denied when the 

agreement contains more than one unconscionable provision” 

and the unconscionable taint cannot be removed from the 

agreement by striking or restricting a single provision. The 

court concluded that it had identified “multiple defects” that 

“worked to Ramirez’s distinct disadvantage,” making a denial of 

severance “entirely reasonable.” 

Charter contends the lower courts erred. According to 

Charter, the Court of Appeal assumed that “while one or two 

provisions may be severed from an arbitration agreement, three 

or four is too many.” Charter urges that there is no hard and 

fast rule regarding the number of provisions that may be 

severed from a contract. Here, Charter argues that all 

unconscionable provisions were collateral to the main purpose 

of the Agreement and therefore should have been severed, with 

the remainder of the Agreement enforced. Charter also argues 

the trial court and the Court of Appeal failed to account for 

Section Q of the Agreement, which provides that “if any portion 

or provision of this Agreement . . . is determined to be illegal, 

invalid, or unenforceable by any court of competent jurisdiction 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

41

and cannot be modified to be legal, valid, or enforceable, the 

remainder of this Agreement shall not be affected by such 

determination and shall be valid and enforceable to the fullest 

extent permitted by law, and said illegal, invalid, or 

unenforceable portion or provision shall be deemed not to be a 

part of this Agreement.” 

Armendariz, supra, 24 Cal.4th 83 explained how a court 

should determine whether and how to exercise its discretion 

under Civil Code section 1670.5. As mentioned, in Armendariz

we found two aspects of the challenged arbitration agreement 

unconscionable: its lack of mutuality; and the fact it did not 

permit recovery of damages normally available under FEHA. 

(Armendariz, supra, 24 Cal.4th at pp. 120–121.) We began by 

noting the dearth of authority considering “when a trial court 

abuses its discretion by refusing to enforce an entire agreement” 

and “what it means for an agreement to be permeated by 

unconscionability.” (Id. at p. 122.) Therefore, we turned to 

“statutory and case law discussing . . . when it is proper to sever 

illegal contract terms.” (Ibid.) 

In particular, we noted Civil Code sections 1598 and 1599. 

Civil Code section 1598 provides that “[w]here a contract has but 

a single object, and such object is unlawful, whether in whole or 

in part, or wholly impossible of performance, or so vaguely 

expressed as to be wholly unascertainable, the entire contract is 

void.” Civil Code section 1599 provides that “[w]here a contract 

has several distinct objects, of which one at least is lawful, and 

one at least is unlawful, in whole or in part, the contract is void 

as to the latter and valid as to the rest.” Armendariz observed 

that those statutes furnish “[t]wo reasons for severing or 

restricting illegal terms rather than voiding the entire contract.”

(Armendariz, supra, 24 Cal.4th at p. 123.) “The first is to 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

42

prevent parties from gaining undeserved benefit or suffering 

undeserved detriment as a result of voiding the entire 

agreement — particularly when there has been full or partial 

performance of the contract.” (Id. at pp. 123−124.) Second, “the 

doctrine of severance attempts to conserve a contractual 

relationship if to do so would not be condoning an illegal 

scheme.” (Id. at p. 124.) We stated that the “overarching 

inquiry is whether ‘ “the interests of justice . . . would be 

furthered” ’ by severance.” (Id. at p. 124, quoting Benyon v. 

Garden Grove Medical Group (1980) 100 Cal.App.3d 698, 713.) 

We also noted that, in deciding to enforce a contract, the court 

“must have the capacity to cure the unlawful contract through 

severance or restriction of the offending clause.” (Armendariz, 

at p. 124.) If the court lacks that capacity, it must refuse to 

enforce the contract. (Id. at p. 125.) 

We concluded that the “basic principles of severability that 

emerge” from the statutes and case law regarding “illegal 

contracts appear fully applicable to the doctrine of 

unconscionability.” (Armendariz, supra, 24 Cal.4th at p. 124.) 

We explained: “Courts are to look to the various purposes of the 

contract. If the central purpose of the contract is tainted with 

illegality, then the contract as a whole cannot be enforced. If 

the illegality is collateral to the main purpose of the contract, 

and the illegal provision can be extirpated from the contract by 

means of severance or restriction, then such severance and 

restriction are appropriate.” (Ibid.) 

In Armendariz, “two factors weigh[ed] against severance” 

for the agreement at issue. First, the agreement contained 

“more than one unlawful provision; it has both an unlawful 

damages provision and an unconscionably unilateral arbitration 

clause. Such multiple defects indicate a systematic effort to 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

43

impose arbitration on an employee not simply as an alternative 

to litigation, but as an inferior forum that works to the 

employer’s advantage.” (Armendariz, supra, 24 Cal.4th at p. 

124.) “[G]iven the multiple unlawful provisions, the trial court 

did not abuse its discretion in concluding that the arbitration 

agreement is permeated by an unlawful purpose.” (Ibid.) 

Second, regarding the “agreement’s lack of mutuality,” we 

reasoned that “such permeation is indicated by the fact that 

there is no single provision a court can strike or restrict in order 

to remove the unconscionable taint from the agreement.” 

(Armendariz, supra, 24 Cal.4th at pp. 124−125.) Instead, “the 

court would have to, in effect, reform the contract, not through 

severance or restriction, but by augmenting it with additional 

terms.” (Id. at p. 125.) We observed that neither Civil Code 

section 1670.5 nor the CAA authorized “reformation by

augmentation,” and concluded that because “a court is unable to 

cure this unconscionability through severance or restriction and 

is not permitted to cure it through reformation and 

augmentation, it must void the entire agreement.” 

(Armendariz, at p. 125.) 

Charter argues the trial court and the Court of Appeal 

erroneously assumed that a bright line rule prohibits severance 

where an agreement has more than one unconscionable 

provision. Neither court stated its reliance on such an 

assumption expressly, though both did highlight the number of 

unconscionable provisions as a key factor in their decisions to 

refuse to enforce the Agreement. We note that some Courts of 

Appeal have treated the severance question as more of a 

quantitative inquiry than a qualitative one. (See, e.g., Carmona 

v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 

74, 90; Ontiveros, supra, 164 Cal.App.4th at p. 515; Murphy, 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

44

supra, 156 Cal.App.4th at p. 149.) However, other courts have 

rejected the proposition that “more than a single unconscionable 

provision in an arbitration agreement precludes severance.” 

(Lange, supra, 46 Cal.App.5th at p. 454.) As Lange made clear, 

the “presence of multiple unconscionable clauses is merely one 

factor in the trial court’s inquiry, it is not dispositive.” (Ibid.; 

see also Bolter v. Superior Court (2001) 87 Cal.App.4th 900, 

911.) 

Here, we clarify that no bright line rule requires a court to 

refuse enforcement if a contract has more than one 

unconscionable term. Likewise, a court is not required to sever 

or restrict an unconscionable term if an agreement has only a 

single such term. Instead, the appropriate inquiry is qualitative 

and accounts for each factor Armendariz identified. At the 

outset, a court should ask whether “the central purpose of the 

contract is tainted with illegality.” (Armendariz, supra, 24 

Cal.4th at p. 124.) If so, the contract cannot be cured, and the 

court should refuse to enforce it. If that is not the case, the court 

should go on to ask first, whether the contract’s 

unconscionability can be cured purely through severance or 

restriction of its terms, or whether reformation by augmentation 

is necessary. (See Armendariz, supra, 24 Cal.4th at pp. 

124−125.) If no “reformation is required,” the offending 

provision can be severed or limited, and “the rest of the 

arbitration agreement left intact,” then severance or restriction 

is the preferred course for provisions that are collateral to the 

agreement’s main purpose. (Little v. Auto Stiegler, Inc. (2003) 

29 Cal.4th 1064, 1075; see also Armendariz, at p. 124; Farrar, 

supra, 9 Cal.App.5th at p. 1275.) If the unconscionability cannot 

be cured by extirpating or limiting the offending provisions, but 

instead requires augmentation to cure the unconscionability, 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

45

then the court should refuse to enforce the contract. (Mercuro, 

supra, 96 Cal.App.4th at p. 185; see id. at pp 185−186.) Courts 

cannot “rewrite agreements and impose terms to which neither 

party has agreed.” (Sonic, supra, 57 Cal.4th at p. 1143.) 

Even if a contract can be cured, the court should also ask 

whether the unconscionability should be cured through 

severance or restriction because the interests of justice would be 

furthered by such actions. (Armendariz, supra, 24 Cal.4th at p. 

124.) This part of the inquiry focuses on whether mere 

severance of the unconscionable terms would function to 

condone an illegal scheme and whether the defects in the 

agreement indicate that the stronger party engaged in a 

systematic effort to impose arbitration on the weaker party not 

simply as an alternative to litigation, but to secure a forum that 

works to the stronger party’s advantage. (Ibid.) If the answer 

to either question is yes, the court should refuse to enforce the 

agreement. 

In conducting this analysis, the court may also consider 

the deterrent effect of each option. As Mills v. Facility Solutions 

Group, Inc. (2022) 84 Cal.App.5th 1035 explained, severing 

multiple unconscionable provisions from an agreement and 

enforcing the remainder could “create an incentive for an 

employer to draft a one-sided arbitration agreement in the hope 

employees would not challenge the unlawful provisions, but if 

they do, the court would simply modify the agreement to include 

the bilateral terms the employer should have included in the 

first place.” (Id. at p. 1045.) Although there are no bright line 

numerical rules regarding severance, it is fair to say that the 

greater the number of unconscionable provisions a contract 

contains the less likely it is that severance will be the 

appropriate remedy. 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

46

Finally, if the contract contains a severance clause, the 

court should take it into account as an expression of the parties’ 

intent that an agreement curable by removing defective terms 

should otherwise be enforced. (See Baeza v. Superior Court

(2011) 201 Cal.App.4th 1214, 1229−1230; Alvarez v. Altamed 

Health Services Corp. (2021) 60 Cal.App.5th 572, 596; Civ. Code, 

§ 1636.) That said, we note that the parties to an agreement 

cannot divest a trial court of its discretion under Civil Code 

section 1670.5 by including such a severance clause. (Haydon v. 

Elegance at Dublin (2023) 97 Cal.App.5th 1280, 1292.)

Accordingly, courts may liberally sever any 

unconscionable portion of a contract and enforce the rest 

when: the illegality is collateral to the contract’s main purpose; 

it is possible to cure the illegality by means of severance; and

enforcing the balance of the contract would be in the interests of 

justice. (See Armendariz, supra, 24 Cal.4th at pp. 124−125; 

accord Marathon Entertainment, Inc. v. Blasi (2008) 42 Cal.4th 

974, 991; Adair v. Stockton Unified School Dist. (2008) 162 

Cal.App.4th 1436, 1450.) Here, the Court of Appeal concluded 

that four aspects of the Agreement are unconscionable. We 

concur as to three of the four but conclude the discovery rules 

imposed by the Agreement and the Guidelines are not 

unconscionable. That difference alone might not merit reversal 

of the Court of Appeal’s judgment. However, for the reasons set 

out below, we conclude that reversal and remand for further 

proceedings is warranted. 

First, it is not clear that the Court of Appeal would have 

affirmed the ruling had it reached the conclusion we draw 

regarding the Agreement’s discovery limits. The court 

specifically identified the “unconscionable provision on 

depositions” as the one aspect of the Agreement and Guidelines 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

47

that could not be severed. Second, neither the trial court nor the 

Court of Appeal discussed how Section Q fit into its decision, and 

both courts focused great attention on the number of 

unconscionable provisions. As clarified here, the decision 

whether to sever unconscionable provisions and enforce the 

balance is a qualitative one, based on the totality of the 

circumstances. The court cannot refuse to enforce an agreement 

simply by finding that two or more collateral provisions are 

unconscionable as written and eschewing any further inquiry. 

Third, there remain open questions regarding the 

unconscionability and enforceability of certain of the 

Agreement’s provisions. (See ante, p. 38, fn. 13.) 

On remand, the Court of Appeal may consider the 

severance question anew, in light of its answers to those 

questions, and in a manner consistent with this opinion. 

D. FAA Preemption

The Agreement expressly provides that it “will be 

governed” by the FAA. The “overarching purpose” of the FAA 

“is to ensure the enforcement of arbitration agreements 

according to their terms so as to facilitate streamlined 

proceedings.” (AT&T Mobility LLC v. Concepcion (2011) 563 

U.S. 333, 344.) Charter argues it would contravene the FAA to 

apply the general law of unconscionability and to refuse to sever 

the Agreement’s unconscionable provisions and enforce the rest. 

Patterson rejected a similar argument, stating that 

“Charter’s abbreviated and overly broad discussion of FAA 

preemption . . . omit[ted] several fundamental principles of FAA 

jurisprudence.” (Patterson, supra, 70 Cal.App.5th at p. 491.) As 

Patterson explained, although the FAA “requires courts to place 

arbitration agreements on an equal footing with other contracts 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

48

and to enforce them according to their terms,” it also permits 

courts to declare arbitration agreements unenforceable upon the 

same grounds as any other contract, including 

unconscionability. (Patterson, at p. 491, citing McGill v. 

Citibank, N.A. (2017) 2 Cal.5th 945, 961−962.) Thus, it does not 

contravene the FAA to find that certain provisions of the 

Agreement are unconscionable. The FAA seeks to treat

interpretation and enforcement of arbitration agreements 

equally with other contracts. Such treatment continues to 

recognize the severance of unconscionable claims as an option 

for the court’s consideration. As McGill observed, it was not 

Congress’s intent to make arbitration agreements more 

enforceable than other contracts. (McGill, at p. 962.) 

The approach adopted here is not hostile to arbitration. 

We continue to note the strong federal and state policies and 

preferences for treating arbitration agreements like any other 

contract and favoring their enforcement. However, other 

statements of policy recognize that a favorable view of 

arbitration does not undermine a solicitude to the potential for 

overreaching when the parties are of unequal bargaining power. 

This is particularly so when a proposed agreement unfairly 

impinges on the rights and protections the Legislature has 

taken care to recognize and protect. The approach we adopt here 

gives the courts authority to consider all relevant statements of 

policy bearing on the question of contract enforcement. 
RAMIREZ v. CHARTER COMMUNICATIONS, INC.

Opinion of the Court by Corrigan, J.

49

III. DISPOSITION

The Court of Appeal’s judgment is reversed. The matter 

is remanded for further proceedings consistent with our 

decision. 

CORRIGAN, J.

We Concur:

GUERRERO, C. J.

LIU, J.

KRUGER, J.

GROBAN, J.

JENKINS, J.

EVANS, J.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion Ramirez v. Charter Communications, Inc.

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 75 Cal.App.5th 365

Review Granted (unpublished) 

Rehearing Granted

__________________________________________________________

Opinion No. S273802

Date Filed: July 15, 2024

__________________________________________________________

Court: Superior

County: Los Angeles

Judge: David J. Cowan

__________________________________________________________

Counsel:

Hill, Farrer & Burrill, James A. Bowles, Casey L. Morris, Elissa L. 

Gysi; Seyfarth Shaw and Kiran A. Seldon for Defendant and 

Appellant.

Eimer Stahl, Robert E. Dunn; and Fred J. Hiestand for the Chamber of 

Commerce of the United States of America and the Civil Justice 

Association of California as Amici Curiae on behalf of Defendant and 

Appellant.

Coblentz Patch Duffy & Bass, Fred Alvarez, Anthony D. Risucci and 

Tom Lin for Employers Group as Amicus Curiae on behalf of 

Defendant and Appellant.

Panitz Law Group and Eric A. Panitz for Plaintiff and Respondent. 

Soderstrom Law and Jamin S. Soderstrom for Lionel Harper, Hassan 

Turner, Luis Vazquez and Pedro Abascal as Amici Curiae on behalf of 

Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

Kiran A. Seldon

Seyfarth Shaw LLP

2029 Century Park East, Suite 3500

Los Angeles, CA 90067

(310) 277-7200

Eric A. Panitz

Panitz Law Group APC

18000 Studebaker Road, Suite 700

Cerritos, CA 90703

(562) 924-7800

Jamin S. Soderstrom

Soderstrom Law PC

1 Park Plaza, Suite 600

Irvine, CA 92614

(949) 667-4700