This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 RALPH CECIL, Deceased, By the 2 PERSONAL REPRESENTATIVE of 3 the WRONGFUL DEATH ESTATE, 4 ROGER CECIL, 5 Plaintiff-Appellee, 6

v. No. 32,433 7 SKILLED HEALTHCARE GROUP, INC., 8 SKILLED HEALTHCARE, L.L.C. 9 ST. THERESA HEALTHCARE and 10 REHABILITATION CENTER, L.L.C., 11 and ADMINISTRATOR MATTHEW TAIT, 12 Defendants-Appellants. 13 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY 14 Ted Baca, District Judge 15 Harvey & Foote Law Firm 16 Dusti D. Harvey 17 Jennifer J. Foote 18 Albuquerque, NM 19 for Appellee 20 Rodey, Dickason, Sloan, Akin & Robb, P.A. 21 W. Robert Lasater, Jr. 22 Sandra Beerle 23 Jocelyn Drennan 24 Albuquerque, NM 252 for Appellants 1 MEMORANDUM OPINION 2 FRY, Judge. 3
{1} Defendants appeal the district court’s denial of their motion to compel 4 arbitration. The district court concluded that the arbitration agreement at issue was 5 both procedurally and substantively uncons cionable and therefore void. Because we 6 agree with the district court that the arbitration agreement is substantively 7 unconscionable, we affirm the district c ourt’s ruling. We do not reach Defendants’ 8 argument that the agreement was not procedurally unconscionable. 9 BACKGROUND 10
{2} We briefly set out the relevant provisions of the arbitration agreement. The 11 agreement provided that any dispute betw een the parties would be resolved by 12 arbitration. The agreement defined “dispute” as 13 all disputed claims that the Fac ility and Resident may have against each 14 other associated with [the agreement], the relationship created by the 15 Admission Agreement and/or the provision of services under the 16 Admission Agreement, including all disputed claims arising out of or 17 related to treatment or services provided by Facility to Resident, 18 including disputed claims as to whether any services provided by Facility 19 to Resident were unnecessary, unauthorized, or were improperly, 20 negligently or incompetently rendered. 21 The agreement also defined collection claims by the Fac ility against the Resident as 22 a dispute. Immediately after, howev er, the agreement provided exemptions: 233 A [d]ispute for purposes of [the agreement] does not include claims for 1 monetary damages that fall within the jurisdictional limit of the New 2 Mexico metropolitan, magistrate or other small claims court. A [d]ispute 3 . . . also does not include claims related to the eviction, transfer or 4 discharge of Resident that are subject to a federal or state administrative 5 hearing process. 6 Thus, the agreement specifically required that all claims for monetary damages 7 exceeding the magistrate jurisdictional limitation must be arbitrated, including 8 specifically “claims for loss of consortium, wrongful death, emotional distress, 9 injunctive relief, or punitive damages.” 10
{3} Because this is a memorandum opinion and the parties are familiar with the 11 facts and procedural history of this case, wereserve further discussion of the pertinent 12 facts for our analysis. 13 DISCUSSION 14 Standard of Review 15
{4} A district court’s denial of a motion to compel arbitration is subject to de novo 16 review. Cordova v. World Fin. Corp. of N.M. , 2009-NMSC-021, ¶ 11, 146 N.M. 256, 17 208 P.3d 901. Whether an arbitration agreement is unconscionable also presents a 18 question of law subject to de novo review. Id. 19 Strausberg v. Laurel Healthcare Providers, LLC , 2013-NMSC-032, 304 P.3d 409 20
{5} As an initial matter, we first address issu es related to the change in the burden 21 of proof in regard to allegedly unconscionable arbitration agreements. While this 224 appeal was pending, our Supreme Court issued its decision in Strausberg and held that 1 the party opposing arbitration has the bur den to prove that the agreement is 2 unconscionable. Id. ¶ 3. Both parties raise the issue on appeal as to whether 3 Strausberg requires this Court to remand this case to the district court to determine 4 whether Plaintiff met the burden of proof. However, because we conclude that 5 Plaintiff met his burden to prove that th e arbitration agreement was unconscionable, 6 we do not believe that remand is necessary in this case. 7 Substantive Unconscionability 8
{6} “Unconscionability is an equitable doctrine, rooted in public policy, which 9 allows courts to render unenforceable an agreement that is unreasonably favorable to 10 one party while precluding a meaningf ul choice of the other party.” Cordova , 2009- 11 NMSC-021, ¶ 21. “Substantive unconscionability concerns the legality and fairness 12 of the contract terms themselves.” Id. ¶ 22. In determining whether a contract 13 provision is substantively unconscionable, we “focus[ ] on such issues as whether the 14 contract terms are commercially reasonable and fair, the purpose and effect of the 15 terms, the one-sidedness of the terms, and other similar public policy concerns.” Id. 16 While we do not require that the arbitr ation obligations be completely equal, Figueroa 17 v. THI of New Mexico at Casa Arena Blanca, LLC, 2013-NMCA-077, ¶ 32, 306 P.3d 18 480, “ ‘[c]ontract provisions that unreasonably benefit one party over another are 195 substantively unconscionable.’ ” (quoting Cordova , 2009-NMSC-021, ¶ 25). This is 1 a case-by-case determination. See Bargman v. Skilled Healthcare Group, Inc. , 2013- 2 NMCA-006, ¶ 17, 292 P.3d 1. 3
{7} Defendants argue that the arbitration ag reement at issue is not one-sided or 4 oppressive because the agreement fairlyand reasonably protects the respective 5 interests of all parties. Defendants point out that the agreement provides for an 6 unbiased decision-making body, does not restrictthe remedies that the arbitrators may 7 award, does not alter the resident’s legal rights or otherwise exculpate Defendants 8 from liability, and requires Defendants to pay 100 percent of the arbitrators’ fees. 9 Defendants further argue that there is no ev idence in the record that they would be 10 more likely than any other party to invokethe small claims ex ception that exempts 11 from arbitration any claim under the magistrate or metropolitan court jurisdictional 12 limit of $10,000. See NMSA 1978, § 35-3-3(A) (2001) (providing a $10,000 13 jurisdictional limitation on magistrate courts). 14
{8} While we recognize that the portions of the agreement cited by Defendants are 15 fair to Plaintiff, this C ourt has repeatedly held that“we refuse to enforce an 16 [arbitration] agreement where the drafter unreasonably reserve[s] the vast majority of 17 his claims for the courts, while subjecting the weaker party to arbitration on 18 essentially all of the claims that party is [most] likely to bring.” Figueroa , 2013- 196 NMCA-077, ¶ 30; see Ruppelt v. Laurel Healthcare Providers, LLC , 2013-NMCA1 014, ¶ 16, 293 P.3d 902 (c oncluding that the arbitration agreement was substantively 2 unconscionable where “[i]t provide[d the d]ef endants with a judicial forum to litigate 3 [their] most likely and benefi cial claims while totally excluding access to the judicial 4 system for claims regarding negligent care, the most likel y claims to be pursued by 5 a resident”), cert. denied, Ruppelt v. Meadows , 2012-NMCERT-012, 299 P.3d 422. 6 We see no principled distinction be tween the arbitration agreement in Figueroa , 7 which exempted small claims below $2,500, and the exemption in this case, which 8 allows claims under $10,000 to be exempted from arbitration. 2013-NMCA-077, ¶ 28. 9 Arguably, the agreement here allows for even more of the types of small claims 10 Defendants are most likely to bring, such as collection actions, to be exempted from 11 arbitration while forcing “claims for loss of consortium, wrongful death, emotional 12 distress, injunctive relief, or punitive damages”—claims the resident is most likely to 13 bring—into arbitration. Id. ¶ 29 (“[A]lthough the exemption from arbitration for 14 claims under $2,500 grants some judicial rights to the resident, . . . the practical effect 15 of this agreement is no different from Cordova and Rivera : the resident is precluded 16 from bringing any claims that he or sh e would likely have, while the most likely 17 claims the nursing home would have ag ainst the resident are excluded from 18 arbitration.”). Thus, as we concluded in Figueroa , we hold that the agreement in this 197 case is unfair and unreasonably one-sided. See 2013-NMCA-077, ¶ 18 (“[A]lthough 1 the exemption provision may facially app ear to apply evenhandedly, its practical 2 effect unreasonably favors [the d]efendants, and the provisions bilateral appearance 3 is inaccurate.” (citation omitted)). 4
{9} We further reject Defendants’ argument th at there is no basis for this Court to 5 presume that Defendants are more likely th an Plaintiff to invoke the small claims 6 exception. Plaintiff proffered evidence to th e district court that collection actions by 7 nursing homes generally fall under the $10, 000 limitation found in the agreement. 8 Although evidence of other nursing home coll ection actions is ha rdly conclusive, 9 Defendants offered nothing to rebut the thrust of Plaintiff’s evidence: that the $10,000 10 exemption is another way of exempting from arbitration claims Defendants are most 11 likely to bring. Furthermore, this Court has recognized that small claims exemptions 12 are generally intended to benefit nursing homes. See id. ¶ 31 (“Common sense 13 dictates that the most likely claims [thed]efendant would have against a resident 14 would be related to its provisi on of services to that resident: i.e., the collection of fees 15 for services[.]”); Ruppelt , 2013-NMCA-014, ¶ 15 (“Common sense dictates that 16 claims relating to collection of fees . . . are the types of remedies that a nursing home, 17 not its resident, is most likely to pursue.”) . We therefore conclude that there is a 18 sufficient basis to conclude that the small claims exemption, though facially bilateral, 198 was intended to exempt claims Defendants were most likely to bring against Plaintiff. 1 See Ruppelt , 2013-NMCA-014, ¶ 15 (“Although the exemption provision is facially 2 bilateral in the sense that it does not comp letely extinguish [the p]laintiff’s right to 3 access the courts, in effect this distinction from Cordova and Riverais illusory.”). 4
{10} Finally, we reject Defendants’ argumen t that there may be some reasonable 5 justification for the small claims exempti on, such as arbitration being unfeasible in 6 small claims matters because paying the arbitrators would make the process cost7 prohibitive. Defendants did not present ev idence below, even when it was believed 8 that the burden of proof was theirs, regard ing the costs involved in pursuing the types 9 of small claims that are most likely to be pursued by nursing homes. See Bargman , 10 2013-NMCA-006, ¶ 17 (“It is noteworthy that in none of the foregoing cases 11 [ Figueroa and Ruppelt] did the defendant drafter of the arbitration provision offer 12 evidence tending to prove that it was not unreasonable or unfair to except certain 13 claims from arbitration even if they wereclaims most likely to be pursued by the 14 defendant.”). Accordingly, we re ject this argument by Defendants. 15 CONCLUSION 16
{11} For the foregoing reasons, we hold th at the arbitration agreement is 17 substantively unconscionable and affirm the district court’s order denying Defendants’ 18 motion to compel arbitration. 199 {12} IT IS SO ORDERED. 1

2 CYNTHIA A. FRY, Judge 3 WE CONCUR: 4

5 MICHAEL D. BUSTAMANTE, Judge 6

7 TIMOTHY L. GARCIA, Judge 8