Filed 4/21/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

EVANGELINA YANEZ 

FUENTES,

Plaintiff and Respondent,

v.

EMPIRE NISSAN, INC., et al.,

Defendants and Appellants.

 B314490

 Los Angeles County

 Super. Ct. No. 20STCV35350

APPEAL from an order of the Superior Court of 

Los Angeles County, Mel Red Recana, Judge. Reversed.

Fisher & Phillips, John M. Polson, Tyler Rasmussen, Bret 

Martin, Megan E. Walker and Christopher C. Hoffman for 

Defendants and Appellants.

Shegerian & Associates, Carney R. Shegerian and Victoria 

A. Hane; Javanmardi Law|Holmquist Law, Peter A. Javanmardi 

and Marc A. Holmquist for Plaintiff and Respondent.
2

____________________

Evangelina Yanez Fuentes signed an arbitration agreement 

with Empire Nissan, Inc. Nissan fired Fuentes, she sued, and 

Nissan moved to compel arbitration. The trial court ruled the 

arbitration contract was unconscionable. The unconscionability 

defense has two mandatory elements: a party must establish 

both procedural and substantive unconscionability. (OTO, L.L.C. 

v. Kho (2019) 8 Cal.5th 111, 125 (Kho).) We reverse because 

there was a fatal omission: no substantive unconscionability.

By coincidence, this arbitration contract is substantially 

similar to the form Nissan arbitration contract in another case 

we decide today: Basith v. Lithia Motors, Inc. (Apr. 21, 2023, 

B316098) ___ Cal.App.5th ___. The contract also is substantially

similar to contracts in other cases, as we will describe.

I

When Fuentes applied to work for Nissan, she signed paper 

documents that included an “Applicant Statement and 

Agreement.” Below that heading, the print in this one-page form 

was strikingly minute and, in the record photocopy, blurry to 

boot. We append this one-page form to this opinion. (See 

appendix A, post.) The tiny and blurred print on this copy 

renders it largely unreadable. We also append a copy of its text, 

in larger font, as appendix B, post.

The longest paragraph squeezed something like 900 words 

into about three vertical inches. We quote these hundreds of 

words, which are the arbitration agreement in this case. To 

facilitate comprehension, we italicize the 12 key words and block 

indent this mammoth paragraph:
3

“I also acknowledge that the Company utilizes a system of 

alternative dispute resolution which involves binding 

arbitration to resolve all disputes which may arise out of 

the employment context. Because of the mutual benefits 

(such as possible reduced expense and possible increased 

efficiency) which private binding arbitration can provide 

both the Company and myself, I and the Company both 

agree that any claim, dispute, and/or controversy that 

either party may have against one another (including, but 

not limited to, any claims of discrimination and 

harassment, whether they be based on the California Fair 

Employment and Housing Act, Title VII or the Civil Rights 

Act of 1964, as amended, as well as all other applicable 

state or federal laws or regulations) which would otherwise 

require or allow resort to any court or other governmental 

dispute resolution forum between myself and the Company 

(or its owners, directors, officers, managers, employees, 

agents, and parties affiliated with its employee benefit and 

health plans) arising from, related to, or having any 

relationship or connection whatsoever with my seeking 

employment with, employment by, or other association with 

the Company, whether based on tort, contract, statutory, or 

equitable law, or otherwise, (with the sole exception of 

claims arising under the National Labor Relations Act 

which are brought before the National Labor Relations 

Board, claims for medical and disability benefits under the 

California Workers’ Compensation Act, and Employment 

Development Department claims) shall be submitted to and 

determined exclusively by binding arbitration. In order to 

provide for the efficient and timely adjudication of claims, 
4

the arbitrator is prohibited from consolidating the claims of 

others into one proceeding. This means that an arbitrator 

will hear only my individual claims and does not have the 

authority to fashion a proceeding as a class or collective 

action or to award relief to a group of employees in one 

proceeding. Thus, the Company has the right to defeat any 

attempt by me to file or join other employees in a class, 

collective, or joint action lawsuit or arbitration (collectively 

‘class claims’). I further understand that I will not be 

disciplined, discharged, or otherwise retaliated against for 

exercising my rights under Section 7 of the National Labor 

Relations Act, including but not limited to challenging the 

limitation on a class, collective, or joint action. I 

understand and agree that nothing in this agreement shall 

be construed so as to preclude me from filing any 

administrative charge with, or from participating in any 

investigation of a charge conducted by any government 

agency such as the Department of Fair Employment and 

Housing and/or the Equal Employment Opportunity 

Commission; however, after I exhaust such administrative 

process/investigation, I understand and agree that I must 

pursue any such claims through this binding arbitration 

procedure. I acknowledge that the Company’s business and 

the nature of my employment in that business affect 

interstate commerce. I agree that the arbitration and this 

Agreement shall be controlled by the Federal Arbitration 

Act, in conformity with the procedures of the California 

Arbitration Act (Cal. Code Civ. Proc. sec 1280 et seq., 

including section 1283.95 and all of the Act’s other 

mandatory and permissive rights in discovery). However, 
5

in addition to requirements imposed by law, any arbitrator 

herein shall be a retired California Superior Court Judge 

and shall be subject to disqualification on the same grounds 

as would apply to a judge of such court. To the extent 

applicable in civil actions in California courts, the following 

shall apply and be observed: all rules of pleading (including 

the right of demurrer), all rules of evidence, all rights to 

resolution of the dispute by means of motions for summary 

judgment, judgment on the pleadings, and judgment under 

Code of Civil Procedure Section 631.8. Resolution of the 

dispute shall be based solely upon the law governing the 

claims and defenses pleaded, and the arbitrator may not 

invoke any basis (including, but not limited to, notions of 

‘just cause’) other than such controlling law. The arbitrator 

shall have the immunity of a judicial officer from civil 

liability when acting in the capacity of an arbitrator, which 

immunity supplements any other existing immunity. 

Likewise, all communications during or in connection with 

the arbitration proceedings are privileged in accordance 

with Cal. Civil Code Section 47(b). As reasonably required 

to allow full use and benefit of this Agreement’s 

modifications to the Act’s procedures, the arbitrator shall 

extend the times set by the Act for the giving of notices and 

setting of hearings. Awards shall include the arbitrator’s 

written reasoned opinion. If CCP § 1284.2 conflicts with 

other substantive statutory provisions or controlling case 

law, the allocation of costs and arbitrator fees shall be 

governed by said statutory provisions or controlling case 

law instead of CCP § 1284.2. Both the Company and I 

agree that any arbitration proceeding must move forward 
6

under the Federal Arbitration Act (9 U.S.C. § § 3-4) even 

though the claims may also involve or relate to parties who 

are not parties to the arbitration agreement and/or claims 

that are not subject to arbitration, thus the court may not 

refuse to enforce this arbitration agreement and may not 

stay the arbitration proceeding despite the provisions of 

California Code of Civil Procedure § 1281.2(c). I 

UNDERSTAND BY AGREEING TO THIS BINDING 

ARBITRATION PROVISION, BOTH I AND THE 

COMPANY GIVE UP OUR RIGHTS TO TRIAL BY JURY.” 

We pause to note this lengthy paragraph is substantially 

similar to the arbitration contract not only in Basith, but also to 

the arbitration contracts in Kho, supra, 8 Cal.5th at page 119 and 

Davis v. TWC Dealer Group, Inc. (2019) 41 Cal.App.5th 662, 665–

674 (Davis). These cases all involved car dealerships. As was 

true here, the employer in Basith also was a Nissan dealership, 

although not the same one. Kho and Davis involved Toyota 

dealerships. (Kho, at p. 118; Davis, at p. 665.) Kho is unlike this 

case and unlike Basith, however, because our cases have no issue 

about administrative Berman hearings. The issue about Berman 

hearings was central to the Kho holding, where the majority and 

dissenting opinions used the word “Berman” over 100 times. 

Davis we discuss at the end of this opinion.

We return to the text of this arbitration agreement. After 

the just-quoted paragraph and near the bottom of this one-page 

form, this contract stated no “agreements contrary to the express 

language of this agreement are valid unless they are in writing 

and signed by the President of the Company . . . .”
7

Nissan later asked Fuentes to sign a second agreement. 

This one concerned trade secrets; it did not mention 

arbitration. About six months later, Nissan asked Fuentes to 

sign a third contract: another trade secret agreement 

substantially identical to the second agreement. The two trade 

secret agreements had integration clauses. Each stated the 

contract was the entire agreement between the parties 

“regarding the secrecy, use and disclosure of the Company’s 

Proprietary Information, Trade Secrets and Confidential 

Information and this Agreement supersedes any and all prior 

agreements regarding these issues.” These two agreements 

permitted Nissan to seek injunctive relief in the event of 

breach. The agreements also contained a severance provision 

allowing “any court of competent jurisdiction” to sever invalid, 

illegal, or unenforceable provisions. The final trade secret 

contract mirrored the earlier one and did not refer to arbitration.

After termination, Fuentes sued Nissan, as well as Romero 

Motors Corporation and Oremor Management & Investment 

Company, for discrimination and wrongful termination. We call 

all three defendants Nissan. Nissan moved to compel arbitration. 

The trial court found the arbitration agreement unconscionable 

and denied the motion. Nissan appealed. 

II

This dispute must go to arbitration.

A

The governing law is both federal and state in character. 

We begin with federal law. 

The contract provided the Federal Arbitration Act (9 U.S.C. 

§§ 1 et seq; the Act) would control, and the Act indeed does 
8

control: selling Nissan cars affects interstate commerce. No one 

disputes this. 

Congress passed the Act in response to judicial hostility to 

arbitration. The Act contains an enforcement mandate, which 

renders agreements to arbitrate enforceable as a matter of 

federal law, and a saving clause, which permits invalidation of 

arbitration clauses on grounds applicable to any contract. (9 

U.S.C. § 2; see AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 

333, 339–340 (Concepcion); Epic Systems Corp. v. Lewis (2018) 

138 S.Ct. 1612, 1621–1622.) 

The result is an equal-treatment principle: a state court 

may invalidate an arbitration agreement according to generally 

applicable contract defenses like unconscionability, but not on the 

basis of legal rules that apply only to arbitration or that derive 

their meaning from the fact that an agreement to arbitrate is at 

issue. Under this principle, the federal Act preempts any state 

rule discriminating on its face against arbitration, like laws 

prohibiting the arbitration of a particular type of claim. Even 

rules that are generally applicable as a formal matter are not 

immune to preemption by the Act. (Viking River Cruises, Inc. v. 

Moriana (2022) __ U.S. __ [142 S.Ct. 1906, 1917–1918] (Viking).) 

State courts cannot invalidate arbitration contracts on the 

basis of a special or selective arbitration-only version of 

unconscionability. This has been true at least since Concepcion

in 2011. (See Concepcion, supra, 563 U.S. at pp. 341–343.) That 

decision observed the judicial hostility towards arbitration had 

manifested itself in a great variety of devices and formulas that 

declared arbitration against public policy. The Concepcion

decision also noted that, in the past, California courts had been 
9

more likely to hold arbitration contracts unconscionable than 

other contracts. (Id. at p. 342.) 

In Concepcion and in the many cases that have followed it, 

the Supreme Court of the United States has prohibited state 

courts from selectively disfavoring arbitration agreements. (E.g., 

DIRECTV, Inc. v. Imburgia (2015) 577 U.S. 47, 53 [lower court 

judges are free to note their disagreement with a decision of this 

Court, but the Supremacy Clause forbids state courts to 

dissociate themselves from federal law because of disagreement 

with its content or a refusal to recognize a higher court’s superior 

authority]; see also id. at p. 54 [“we must decide whether the 

decision of the California court places arbitration contracts ‘on 

equal footing with all other contracts’ ”] [quoting Buckeye Check 

Cashing, Inc. v. Cardegna (2006) 546 U.S. 440, 443].)

When “California courts would not interpret contracts other 

than arbitration contracts the same way,” that selective judicial 

hostility to arbitration is preempted. (DIRECTV, Inc. v. 

Imburgia, supra, 577 U.S. at p. 55; see also id. at pp. 55–59.)

Turning now to state law, our review is independent, for 

the facts are undisputed. Fuentes had the burden of establishing 

unconscionability. (Kho, supra, 8 Cal.5th at p. 126.) 

The unconscionability defense has two parts: procedural 

unconscionability and substantive unconscionability. (Kho, 

supra, 8 Cal.5th at p. 125.) As the adjectives imply, procedural 

unconscionability concerns the fairness of the procedures 

surrounding the formation of the contract, while substantive 

unconscionability goes to whether its substance is unfair to the 

employee. (Ibid.) 
10

In other words, one issue focuses on the procedures leading 

up to the contract. The other issue is whether the final deal is 

fair.

Fuentes must show both procedural and substantive 

unconscionability to establish the defense. These two elements 

need not be present to the same degree. Rather we evaluate 

them on a sliding scale. The more substantively oppressive the 

contract terms, the less evidence of procedural unconscionability 

is required to conclude that the contract is unenforceable. 

Conversely, the more deceptive or coercive the bargaining tactics 

employed, the less substantive unfairness is required. (Kho, 

supra, 8 Cal.5th at pp. 125–126.)

Nearly every form employment contract can be perceived as 

having some procedural unfairness. Employees may lack power 

to bargain at all. Sometimes employers insist, “sign it or no job.” 

(Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1241, 1244.) 

When the law attributes some procedural unfairness to every 

form employment contract, the real fight boils down to whether 

the substance of the final terms are fair. We must enforce this 

contract if its substance is even-handed.

B

We reverse the trial court’s ruling because this contract 

lacks substantive unconscionability. Its substance is fair. 

Fuentes launches five attacks on the substance of this 

contract. Each attack is unsuccessful.

1

Fuentes argues the tiny and unreadable print of Nissan’s 

form makes the substance of the contract unfair. 

Tiny font size and unreadability make it hard or impossible 

for employees to read, and thus to understand, the contract. 
11

(E.g., Fisher v. MoneyGram Intern., Inc. (2021) 66 Cal.App.5th 

1084, 1097-1103, 1107 [six-point font justified “an extreme 

assessment of procedural unconscionability”].) 

Tiny font size and unreadability go to the process of 

contract formation, however, and not the substance of the 

outcome. Font size and readability thus are logically pertinent to 

procedural unconscionability and not to substantive 

unconscionability. 

To make this logical point plain, imagine shrinking a 

contract fair in substance down to less than one–point font: a font 

so minute as to be completely unreadable without a strong 

magnifying glass. The fairness of the contract’s substance, 

however, remains unchanged. Font is irrelevant to fairness.

We go over this significant point in more detail.

Fuentes accurately summarizes the difference between 

procedural and substantive unconscionability. We quote page 17 

of her brief. “Procedural unconscionability specifically ‘concerns 

the manner in which the contract was negotiated and the 

circumstances of the parties at that time.’ (Kinney v. United 

Health Care Services, Inc. (1999) 70 Cal.App.4th 1322, 1329.) 

Substantive unconscionability focuses on overly harsh or oneside[d] results.”

Font size is not the substance of a contract. Terms can be 

fair or unfair in substance, no matter the font size. When an 

employer puts a contract in an unreadably minute font, this 

practice definitely is problematic, but not for substantive reasons. 

Rather, during contract formation, an employer’s practice of 

using tiny print creates the same potential for surprise as can 

practices like using baffling legalese, or imposing coercive time 

pressures, or preventing employees from consulting counsel. All 
12

deceptive and coercive procedures by employers can make it more 

likely employees do not fully understand, or do not understand at 

all, the arrangement to which they supposedly are assenting. If 

it is impossible to read, it will be impossible to understand. But 

once the parties have completed the contracting procedures, 

whether the substantive result is unconscionable is a 

conceptually separate question.

Our Supreme Court made these points in Kho. (Kho, 

supra, 8 Cal.5th at pp. 125–129.) Kho did not hold that font size 

counts twice in the analysis of unconscionability. 

Under California law, an agreement must be both 

procedurally and substantively unconscionable to be 

unenforceable. Allowing a single feature to count for both 

categories would nullify this requirement.

To nullify the element of substantive unconscionability 

would change the law. That change would make the 

unconscionability doctrine into a one-element defense where the 

sole issue would be whether there is procedural 

unconscionability. This would tend to call into question all form 

contracts—a profound change indeed. This change would be 

profound because there is procedural unconscionability whenever 

one party has superior bargaining power and presents a contract 

of adhesion on a take-it-or-leave-it basis. That describes 

innumerable contracts, especially in the online world, where the 

standard contract is take-it-or-leave-it. 

Just as it would be momentous to nullify the element of 

substantive unconscionability, so too would it be unwise to dilute 

or trivialize it by smuggling in procedural objections masked as 

substantive points. Watering down substantive 

unconscionability in this way would tend towards the same 

significant doctrinal revision as eliminating the substantive 
13

element altogether. Nor could courts cabin the development by 

making the new rules apply only to arbitration contracts. 

Arbitration-specific rules are preempted. (Concepcion, supra, 563 

U.S. at pp. 341–343; DIRECTV, Inc. v. Imburgia, supra, 577 U.S. 

at pp. 55–59.)

Is it strange that a contract can be enforced when it is 

nearly impossible to read? Contract law enforces contracts you 

cannot read at all, if you are blind, or illiterate, or the contract 

language is foreign to you. (E.g., Caballero v. Premier Care Simi 

Valley LLC (2021) 69 Cal.App.5th 512, 518–19 [inability to read 

English]; Randas v. YMCA of Metro. Los Angeles (1993) 17 

Cal.App.4th 158, 160, 163 [“literate in Greek but not English”], 

citing 3 Corbin, Contracts (1960) § 607, pp. 668–669.) Fuentes 

cites no case invalidating a contract solely because one side 

lacked the ability to read it and without regard to whether the 

substance was fair. Nor does she contend she asked for a more 

legible version and Nissan refused.

In sum, tiny and unreadable print indeed is a problem, but 

is a problem of procedural unconscionability. We cannot double 

count it as a problem of substantive unconscionability.

2

Fuentes argues the arbitration arrangement lacks 

mutuality. She contends the arbitration contract is unfair 

because her claims must all go to arbitration while Nissan, via 

the trade secret contracts, has left itself free to go to court. 

Fuentes says the second and third agreements about trade 

secrets modified the first contract about arbitration in a way that 

destroyed mutuality. 

It is said that, in assessing substantive unconscionability, 

the paramount consideration is mutuality. (Nyulassy v. Lockheed 

Martin Corp. (2004) 120 Cal.App.4th 1267, 1287 (Nyulassy).) Is 
14

this true? Is mutuality a “generally applicable” contract defense? 

(Concepcion, supra, 573 U.S. at p. 343.) The parties cite cases 

solely in the arbitration context. They have not put this point in 

dispute, however, and we do not pursue the question out of 

respect for their understanding of this controversy. The question 

is inessential to our decision because, assuming mutuality indeed 

is a generally applicable requirement, this contract has it.

Assessing mutuality requires us to interpret the interplay 

between the agreements. We independently review this question 

of contract interpretation. (RMR Equip. Rental, Inc. v. 

Residential Fund 1347, LLC (2021) 65 Cal.App.5th 383, 392.) 

Our starting point is, as always, the words of the contract. 

When different contracts relate to the same matter between the 

same parties, we interpret them together, meaning we aim to 

make the parts into a consistent and sensible whole. (Civ. Code, 

§ 1642.) We do so with awareness that federal and California law 

strongly favor arbitration. (9 U.S.C. § 2; Kho, supra, 8 Cal.5th at 

p. 125.) We search for a lawful and reasonable interpretation. 

(Civ. Code, § 1643.)

Under these principles, Fuentes’s argument is in error. 

The three contracts she entered preserve mutuality.

The first contract—the arbitration agreement itself—is 

completely mutual: Fuentes and Nissan both must use 

arbitration exclusively. Neither can go to court. The key 

language was, with our italics, that “I and the Company both 

agree that any claim . . . shall be . . . determined exclusively by 

binding arbitration.”

Fuentes says the problem arose, not in the arbitration 

agreement, but from the later trade secret contracts. She argues 

the later contracts allow Nissan recourse to court for injunctions 
15

and, by virtue of their integration clauses, these contracts 

eclipsed the arbitration agreement and destroyed its mutuality. 

Fuentes misinterprets the contracts. Reading the contracts 

together, Nissan has a right to seek trade secret injunctions only 

in arbitration. (O’Hare v. Municipal Resource Consultants (2003) 

107 Cal.App.4th 267, 278 [“it is well settled arbitrators commonly 

provide equitable relief as part of their decision”].) This 

preserves mutuality.

The arbitration contract has supervening force because it 

specifies it can be modified only in a writing signed by the 

company president, and that president never signed any 

modification. Together with the principle that the law strongly 

favors arbitration, these points win the day for Nissan. 

The reasonable interpretation is that the agreements, 

taken as a whole, preserve mutuality. 

Added support for this conclusion flows from the fact the 

trade secret contracts make no reference to arbitration. It would 

be incongruous to interpret contracts unrelated to arbitration as 

destroying a contract centrally concerned with arbitration. (Cf. 

Jenks v. DLA Piper Rudnick Gray Cary US LLP (2015) 243 

Cal.App.4th 1, 15–16 [termination letter did not supersede 

agreement to arbitrate where letter with integration clause did 

not address arbitration].)

Fuentes disputes this conclusion by pointing to the 

severability paragraph in the trade secret contracts, to which we 

add emphasis:

“Each provision of this Agreement is intended to be 

severable. If any court of competent jurisdiction determines that 

one or more of the provisions of this Agreement, or any part 

thereof, is or are invalid, illegal or unenforceable, such invalidity, 
16

illegality or unenforceability shall not affect or impair any other 

provision of this Agreement, and this Agreement shall be given 

full force and effect while being construed as if such an invalid, 

illegal or unenforceable provision had not been contained within 

it. If the scope of any provision of this Agreement is found to be 

too broad to permit enforcement of such provision to its full 

extent, you consent to judicial modification of such provision and 

enforcement to the maximum extent permitted by law.”

Fuentes incorrectly maintains the effect of the italicized 

word “court” is to abrogate the mutuality of the arbitration 

agreement and to doom it. 

This interpretation is unreasonable. In light of our state’s 

strong policy favoring arbitration, the reasonable interpretation 

of the severability clause is that it protects the balance of the 

agreement from developing case law decisions that unexpectedly 

invalidate some provision within the agreement. This reasonable 

interpretation preserves mutuality and arbitration.

This reasonable interpretation extends through the final 

sentence quoted above, which refers to “judicial” modification. 

An arbitrator does “judicial” work in an arbitration setting. 

Fuentes cites Carmona v. Lincoln Millennium Car Wash, 

Inc. (2014) 226 Cal.App.4th 74 (Carmona), which is not on point. 

In Carmona, the employee signed an employment agreement that 

contained an arbitration clause and a confidentiality 

subagreement. (Id. at pp. 79–80.) The confidentiality 

subagreement contained an enforcement clause explicitly 

allowing the employer to seek relief for breach of the agreement 

in either court or arbitration. (Ibid.) By contrast, the trade 

secret agreements here neither address arbitration nor give 

Nissan a choice between court or arbitration.
17

In sum, the trial court erred by faulting this arbitration 

agreement for a lack of mutuality. Properly interpreted, the 

agreement is even-handed and enforceable.

3

We understand Fuentes to argue that, even if there 

actually is mutuality as a matter of law, the contract is still 

substantively unconscionable and unfair because the existence of 

separate contracts would be confusing to a layperson. This 

argument is incorrect. 

In essence, this argument is that separate contracts are 

unfair: the whole thing was not user-friendly. Certainly a 

profusion of contracts can be a problem. But the problem is of 

procedural rather than substantive unconscionability. Multiple 

contracts are like tiny print or obscure legalese or extreme time 

limits that force one to read in a rush. All these procedural 

problems make it hard to understand the deal. But just as a fair 

contract can be written in microscopic font, so too can it be 

written in confusing legalese and in multiple contracts. 

In short, there was no substantive unconscionability 

because there was full mutuality. Whether the contracts’ 

multiplicity or convoluted language would be confusing to 

laypeople is an issue, but not an issue of substantive 

unconscionability. To mistake a procedural objection for a 

problem of substance would unwisely dilute this doctrine, as we 

have described. 

4

Another argument about substantive unfairness is that 

Fuentes was the only one to sign the arbitration agreement, and 

this shows a lack of mutuality. 
18

This argument is misplaced. Nissan’s missing signature is 

irrelevant to whether the substance of the contact is fair. A 

missing signature cannot make a fair deal unfair. 

The presence of a signature might be pertinent to whether a 

contract exists at all, but that is not our issue. The issue here is 

only whether an existing contract is fair. These questions are 

analytically separate. 

A signature can be important to show contractual assent, 

but that is beside the point here: Nissan certainly assented to its 

own arbitration agreement—the agreement that it drafted and 

required Fuentes to sign and that it now is trying to enforce. In 

this setting, no signature was necessary to prove Nissan’s assent. 

(Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal.App.4th 

165, 176 [what matters is whether there is agreement, not 

whether there is a signature; agreement can be found from 

conduct that ratifies or impliedly accepts the deal].) Had Nissan 

not assented, there would be no contract at all. The trial court 

expressly found the parties had entered a contract. Fuentes does 

not challenge this finding on appeal. 

5

Fuentes’s final argument is that the arbitration agreement 

is unfair because it did not explain how to initiate arbitration. 

This same invalid complaint appeared in a recent case. There, an 

employee said an arbitration agreement was unfair because it 

“did not tell her how to initiate arbitration.” (Alvarez v. Altamed 

Health Services Corp. (2021) 60 Cal.App.5th 572, 590 (Alvarez).) 

The Alvarez court rejected this complaint. It reasoned “the 

failure to provide a copy of the arbitration rules generally raises 

procedural unconscionability concerns only if there is a 

substantively unconscionable provision in the omitted rules. The 
19

agreement in this case states the procedures of the California 

Arbitration Act will apply. There are no substantively 

unconscionable rules in the Act.” (Ibid.) 

We follow Alvarez. Fuentes’s agreement states the 

procedural rules of the California Arbitration Act apply. Fuentes 

does not challenge these rules, which are not unconscionable. In 

this situation, failing to include instructions does not establish 

substantive unconscionability.

6

Fuentes urges us to follow Davis, which invalidated a 

substantially similar arbitration agreement. We respectfully 

disagree with Davis’s analysis of substantive unconscionability. 

We see four problems.

First, the Davis opinion conceived of font size as an issue of 

substance. (Davis, supra, 41 Cal.App.5th at p. 674.) We have 

explained why we believe this is improper double counting.

Second, Davis suggested that it “can be argued” the 

agreement was substantively unconscionable because only the 

employee and not the employer had signed the form. (See Davis, 

supra, 41 Cal.App.5th at p. 674.) Our analysis of the signature 

issue, set forth above, is contrary to Davis’s tentative suggestion. 

Third, Davis also implied, without saying so expressly, that 

there was substantive unconscionability because the employer 

“has the unilateral right to change or modify the agreement at 

any time, and without notice” to the employee. (See Davis, supra, 

41 Cal.App.5th at pp. 674-675.) 

Case law counters Davis. (See Peng v. First Republic Bank

(2013) 219 Cal.App.4th 1462, 1473 [“the Agreement’s unilateral 

modification provision is not substantively unconscionable”]; 24 

Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 
20

1214 [“the modification provision does not render the contract 

illusory”]; Serpa v. California Surety Investigations, Inc. (2013)

215 Cal.App.4th 695, 706 [“it has long been the rule that a 

provision in an agreement permitting one party to modify 

contract terms does not, standing alone, render a contract 

illusory because the party with that authority may not change 

the agreement in such a manner as to frustrate the purpose of 

the contract”]; Harris v. TAP Worldwide, LLC (2016) 248 

Cal.App.4th 373, 389; Avery Integrated Healthcare Holdings, Inc.

(2013) 218 Cal.App.4th 50, 61 [“An arbitration agreement 

between an employer and an employee may reserve to the 

employer the unilateral right to modify the agreement.”]; see 

generally, Asmus v. Pacific Bell (2000) 23 Cal.4th 1, 16 

[employer’s unilateral right to modify employment agreement 

does not make agreement illusory]; cf. Peleg v. Neiman Marcus 

Group, Inc. (2012) 204 Cal.App.4th 1425, 1433 [“If a modification 

provision is restricted—by express language or by terms implied 

under the covenant of good faith and fair dealing—so that it 

exempts all claims, accrued or known, from a contract change, 

the arbitration contract is not illusory.”].)

Moreover, and alternatively, Fuentes forfeited this 

unilateral modification argument. Her brief said nothing about 

it. Nissan had no notice or opportunity to be heard on this claim.

Fourth, Davis found substantive unconscionability because 

the agreement’s “broad language could be read to preclude Labor 

Code Private Attorneys General Act (PAGA; Lab. Code, § 2698 et 

seq.) representative actions, a violation of public policy.” (Davis, 

supra, 41 Cal.App.5th at pp. 675-676.) As support, Davis cited 

Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 

Cal.4th 348, 383 (Iskanian). (Davis, at p. 676.) The Supreme 
21

Court of the United States, however, ruled that the Federal 

Arbitration Act “preempts the rule of Iskanian insofar as it 

precludes division of PAGA actions into individual and nonindividual claims through an agreement to arbitrate.” (Viking, 

supra, 142 S.Ct. at p. 1924.)

Once again, Fuentes also forfeited this PAGA argument. 

Her brief never mentioned it. Nissan never got notice or an 

opportunity to be heard on this point. Any discussion of PAGA 

proceeds without briefing from the parties.

We also distinguish this case from Davis, in two different 

ways.

From its initial paragraph to its last page, the Davis

opinion prominently focused on the attorney misconduct in the 

case. (See Davis, supra, 41 Cal.App.5th at p. 665 [court 

published to remind counsel of “the importance of candor toward 

the court”], id. at p. 667 [“the quotation misrepresents the 

agreements here”], ibid. [appellate defense counsel’s “conduct is 

not to be condoned”], id. at p. 670 [“Such hyperbole has no place 

here”], id. at p. 671 [“We are dumbfounded.”], id. at p. 676 

[“Amazingly,” counsel at oral argument told court he had not 

read the footnote about which the court had written him in a 

letter], id. at p. 678 [“hard to imagine a more obvious violation” of 

a professional conduct rule for attorneys].) We have no attorney 

misconduct in this case. 

Nor do we have the three separate and internallycontradictory arbitration contracts that troubled the Davis court. 

(See Davis, supra, 41 Cal.App.5th at p. 675 [“In addition to the 

internal confusion, the three agreements contain several 

inconsistencies, if not downright contradictions.”].)
22

For these six reasons, we do not accept Fuentes’s 

suggestion that we follow Davis.

Given that there is no substantive unconscionability, we 

need not and do not address procedural unconscionability. (Kho, 

supra, 8 Cal.5th at p. 125 [the defense of unconscionability 

requires both].)

DISPOSITION

We reverse and direct the trial court to grant the motion to 

compel arbitration. We award costs to the appellants. 

WILEY, J.

I concur: 

HARUTUNIAN, J.*

* Judge of the San Diego Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.
1

STRATTON, P.J., Dissenting.

The arbitration agreement speaks for itself. The print is so 

fine it is unreadable without magnification. See if you can read it 

without giving up. And it appears to include the identical font 

and language found procedurally unconscionable in Davis v. TWC 

Dealer Group, Inc. (2019) 41 Cal.App.5th 662 (Davis) and OTO, 

L.L.C. v. Kho (2019) 8 Cal.5th 111 (Kho).

How do we know the language and font are the same? Here 

is a description of the agreement in Davis: “The first agreement 

. . . is entitled ‘Applicant Statement and Agreement’ (hereinafter, 

for consistency with the briefing, Agreement No. 1.) Agreement 

No. 1 is one page long and consists of six paragraphs, all in 

identical and small–and quite difficult to read–font. None of the 

six paragraphs is labeled or titled, in boldface or otherwise. The 

fourth of the six paragraphs is the one that refers to arbitration, 

though hardly in language that is easy to comprehend. The 

paragraph is 30 lines long, and ends with these three sentences: 

‘If CCP § 1284.2 conflicts with other substantive statutory 

provisions ore controlling case law, the allocation of costs and 

arbitrator fees shall be governed by said statutory provisions or 

controlling case law instead of CCP § 1284.2. Both the Company 

and I agree that any arbitration proceeding must move forward 

under the Federal Arbitration Act (9 U.S.C. §§ 3–4) even though 

the claims may also involve or relate to parties who are not 

parties in the arbitration agreement and/or claims that are not 

subject to arbitration; thus, the court may not refuse to enforce 

this arbitration agreement and may not stay the arbitration 

proceeding despite the provisions of California Code of Civil 

Procedure § 1281.2(c). I UNDERSTAND BY AGREEING TO 

THIS BINDING ARBITRATION PROVISION BOTH I AND THE 
2

COMPANY GIVE UP OUR RIGHTS TO TRIAL BY JURY.’ ” 

(Davis, supra, 41 Cal.App.5th at pp. 665–666.)

Davis involved a second and third agreement as well. The 

second agreement included the following language which is also 

in the fourth mega-paragraph of the agreement under inspection 

here: “ ‘Because of the mutual benefits (such as reduced expense 

and increased efficiency) which private binding arbitration can 

provide both the Company and myself, I and the Company both 

agree that any claim, dispute, and/or controversy that either 

party may have against one another (including, but not limited 

to, any claims of discrimination and harassment, whether they be 

based on the California Fair Employment and Housing Act, Title 

VII of the Civil Rights Act of 1964, as amended, as well as all 

other applicable state or federal laws or regulations) which would 

otherwise require or allow resort to any court or other 

governmental dispute resolution forum between myself and the 

Company (or its owners, directors, officers, managers, employees, 

agents, and parties affiliated with its employee benefit and 

health plans) arising from, related to, or having any relationship 

or connection whatsoever with my seeking employment with, 

employment by, or other association with the Company, whether 

based on tort, contract, statutory, or equitable law, or otherwise, 

(with the sole exception of claims arising under the National 

Labor Relations Act which are brought before the National Labor 

Relations Board, claims for medical and disability benefits under 

the California Workers’ Compensation Act ,and Employment 

Development Department claims) shall be submitted to and 

determined exclusively by binding arbitration.’ ” (Davis, supra, 

41 Cal.App.5th at pp. 666–667, fn. 2.) The Davis court describes 

this sentence as “15 lines long.” (Id. at p. 666.)
3

The Davis Court notes the language and font before it are 

virtually identical to the language and font adjudged 

procedurally unconscionable in the Kho case. (Davis, supra, 

41 Cal.App.5th at pp. 671–672; Kho, supra, 8 Cal.5th at p. 119.) 

Here is what our Supreme Court said about the virtually 

identical language and font in Kho: “The facts also support the 

trial court’s finding of surprise. The agreement is a paragon of 

prolixity, only slightly more than a page long but written in an 

extremely small font. The single dense paragraph covering 

arbitration requires 51 lines. As the Court of Appeal noted, the 

text is ‘visually impenetrable’ and ‘challenge[s] the limits of 

legibility.’ [¶] The substance of the agreement is similarly 

opaque. The sentences are complex, filled with statutory 

references and legal jargon. The second sentence alone is 12 lines 

long. . . . A layperson trying to navigate this block text, printed 

in tiny font, would not have an easy journey.” (Kho, at p. 128.)

All this is to say that I, like the trial court here and as 

conceded by Nissan, would find this arbitration agreement 

riddled with procedural unconscionability, as were the similar 

agreements in Davis and Kho. Given the tiny font, prolixity, and 

the trial court’s finding that this was a “take it or leave it” 

contract of adhesion, I would find a very high degree of 

procedural unconscionability, as did the trial court.

I disagree with the majority on the issue of substantive 

unconscionability. As did the courts in Davis and Kho, I would 

also find this agreement sufficiently substantively 

unconscionable. According to the Kho Court, substantive 

unconscionability is concerned with terms that are unreasonably 

favorable to the more powerful party. (Kho, supra, 8 Cal.5th at 

p. 130.) “Substantive terms that, in the abstract, might not 
4

support an unconscionability finding take on greater weight 

when imposed by a procedure that is demonstrably oppressive. 

Although procedural unconscionability alone does not invalidate 

a contract, its existence requires courts to closely scrutinize the 

substantive terms ‘to ensure they are not manifestly unfair or 

one-sided.’ [Citation.] We hold that, given the substantial 

procedural unconscionability here, even a relatively low degree of 

substantive unconscionability may suffice to render the 

agreement unenforceable.” (Id. at p.130.)

Given the complete unreadability of this arbitration 

agreement, I would find an extremely high degree of procedural 

unconscionability, requiring then, as the sliding scale analysis 

allows, a low degree of substantive unconscionability.

Font and typeface have generally been linked to the 

analysis of procedural unconscionability only, not substantive 

unconscionability. However, when discussing substantive 

unconscionability, the Kho Court appeared to endorse the idea 

that “fine-print terms” would support a finding of substantive, as 

well as procedural, unconscionability. (Kho, supra, 8 Cal.5th at 

p. 130 [“Unconscionable terms ‘ “impair the integrity of the 

bargaining process or otherwise contravene the public interest or 

public policy” ’ or attempt to impermissibly alter fundamental 

legal duties. [Citation.] They may include fine-print terms, 

unreasonably or unexpectedly harsh terms regarding price or 

other central aspects of the transaction, and terms that 

undermine the nondrafting party’s reasonable expectations.”].) 

The Kho Court quoted language from Sanchez v. Valencia 

Holding Co., LLC (2015) 61 Cal.4th 899, 911, which was 

describing general unconscionability principles. Although the 

trial court and the Davis Court had no doubt about using fine 
5

print as a basis to find substantive unconscionability (Davis, 

supra, 41 Cal.App.5th at p. 674.), I am unsure whether the Kho

Court meant to extend the indicia of substantive 

unconscionability to “fine-print terms.” If it did, then the fine 

print here, which is so small as to challenge the limits of 

legibility, qualifies.

Nonetheless, the ridiculously tiny print in this agreement 

prompts for me a discussion of mutuality, a consideration for 

substantive unconscionability. I agree with the trial court which 

found: “[T]he text of the arbitration agreement here is also 

‘visually impenetrable’ and ‘challenge[s] the limits of legibility.’ 

Not only is the agreement’s text here extremely small, the font of 

the text is also muddied and broken up, making the agreement 

nearly unreadable. Further exacerbating this problem, the 

provision providing for arbitration is in massive single-block 

paragraph that is not separated by any spacing. Indeed, the 

court can barely identify in the agreement the above mentioned 

arbitration provision that Defendants set forth. Even after 

identifying the arbitration provision, the court can hardly follow 

the rest of the enormous paragraph – the severely strained eyes 

become lost and encompassed in a wall of barely legible text.”

Substantive unconscionability focuses on the agreement’s 

substance, and whether it is one-sided enough to “shock the 

conscience.” (Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 

1519, 1542.) In assessing substantive unconscionability, the 

paramount consideration is mutuality. (Nyulassy v. Lockheed 

Martin Corp. (2004) 120 Cal.App.4th 1267, 1287.) Generally, 

lack of mutuality is discussed in terms of a stronger party 

imposing terms on a weaker party without accepting those terms 
6

for itself. (Armendariz v. Foundation Health Psychcare (2000) 

24 Cal.4th 83, 118.)

I would expand that concept with this particular 

agreement. This agreement with font so small as to challenge 

the limits of legibility implicates a lack of mutuality. Presumably 

the employer who drafted the document knows the terms and 

provisions it included in the agreement. However, the employee 

who is given this illegible document cannot discern the terms and 

provisions. If you can’t know what you are signing because the 

other party gives you only an unreadable copy, the stronger party 

is imposing unknowable terms on the weaker party. Terms 

unknowable to one side only are different from difficult, 

confusing, or prolix terms. Their unknowability is sufficient to 

“shock the conscience.”

There are other reasons to find this agreement 

substantively unconscionable. The Agreement provides that “all 

terms and conditions of my employment, with the exception of 

the arbitration agreement, may be changed or withdrawn at 

Company’s unrestricted option at any time, with or without good 

cause. No implied, oral or written agreements contrary to the 

express language of this agreement are valid unless they are in 

writing and signed by the President of the Company (or majority 

owner or owners if Company is not a corporation).” This very 

term, which gives the Company the unilateral right to change or 

modify the employment agreement at any time without notice to 

the employee, was found substantively unconscionable in Davis. 

(Davis, supra, 41 Cal.App.5th at pp. 674–675.)

Moreover, the provision that “the Company has the right to 

defeat any attempt by me to file or join other employees in a 

class, collective, or joint action lawsuit or arbitration (collectively 
7

‘class claims’)” appears to preclude Labor Code Private Attorneys 

General Act (PAGA, Lab. Code § 2698 et seq.) representative 

actions in any forum, a violation of public policy. (Davis, supra, 

41 Cal.App.5th at p. 675; see also Sakkab v. Luxottica Retail N. 

Am., Inc. (9th Cir. 2015) 803 F.3d 425, 429–430 [Ishkanian held 

that a waiver depriving a PAGA plaintiff of any forum was 

unenforceable].) The ambiguity of this sentence (is this a waiver 

or a threat?) renders it unintelligible to a layperson and 

consequently manifestly unfair.

There is also the issue of confusion caused by the existence 

of separate agreements. In the “Dealership Confidential 

Agreement,” reference is made to the consequences of a “court of 

competent jurisdiction” determining that one or more of the 

provisions are invalid or unenforceable. This seems to suggest 

that the Company is not bound to arbitrate any claims of 

improper disclosure of the company’s propriety information, trade 

secrets and confidential information, despite the language in the 

formal arbitration agreement that everything is arbitrable except 

for two named exceptions which do not include trade secret 

claims. It is true enough that an employer certainly has the right 

to protect its trade secrets as it so chooses. But the upshot of the 

language it has used in the Dealership Agreement is that this 

arguable additional exception to arbitration for only the employer 

is confusing to a layperson and, as such, is unfair.

Based on the foregoing, I would find a sufficient level of 

substantive unconscionability in this arbitration agreement to 

render it unenforceable. I part company with several approaches 

taken by the majority in its analysis. First, the majority appears 

to dismiss Kho as inapposite because it involved a Berman

hearing waiver and Davis as inapposite because it also involved 
8

misconduct by counsel. That the Kho and Davis courts 

adjudicated issues in addition to unconscionability does not 

negate their conclusions about unconscionability. As far as I am 

concerned, their analyses are right on point.

Second, “watering down” unconscionability analysis is not 

what I have in mind. Acknowledging the obvious is my intention. 

Holding a signatory to an illegible contract that is also as prolix 

as this one strains the concepts of mutuality, fairness and 

common sense. If an employee literally cannot read the contract, 

how is that substantively fair? The drafting party must have had 

a reason to use prolix language in tandem with tiny print. One 

inference is that this was so employees would indeed not be able 

to read and then figure out what they were signing. Another is 

that the employer may have figured it did not matter whether the 

agreement was legible because if the applicant wanted the job 

badly enough, they would sign anything. Or perhaps the 

employer was just careless in the drafting process. Whatever the 

motivation, the result is a document that is not readable. I 

acknowledge the law generally does not give breaks to those who 

decline to read what they are signing. That is not the case here; 

even if the employees wanted to read what they were signing, 

they could not do so. The employer has insisted that the 

employee sign an agreement with unknowable terms. That 

makes the agreement one-sided and not mutual. The employer 

knows what is in the agreement because the employer drafted it. 

The employee has no way of knowing without great 

magnification. Acknowledging the extraordinary illegibility of 

this agreement does not water down our way of analyzing 

unconscionability. It is time that this form agreement, which 
9

appears to be in use by auto dealerships around the state, be 

invalidated once and for all. Accordingly, I dissent.

STRATTON, P. J. 
1

APPENDIX A
1

APPENDIX B

APPLICANT STATEMENT AND AGREEMENT

In the event of my employment to a position in this 

Company, I will comply with all rules and regulations of 

this Company. I understand that the Company reserves 

the right to require me to submit to a test for the presence 

of drugs in my system prior to employment and at any time 

during my employment, to the extent permitted by law. I 

also understand that any offer of employment may be 

contingent upon the passing of a physical examination. 

Further, I understand that at any time after I am hired, 

the Company may require me to submit to an alcohol test, 

to the extent permitted by law. I consent to the disclosure 

of the results of any physical examination and tests results 

to the Company. I also understand that I may be required 

to take other tests such as personality and honesty tests 

prior to employment and during my employment. I 

understand that should I decline to sign this consent or 

decline to take any of the above tests, my application for 

employment may be rejected or my employment may be 

terminated. I understand that bonding may be a condition 

of hire. If it is, I will be so advised either before or after 

hiring and a bond application will have to be completed. I 

hereby authorize the Company with which I have applied 

for employment to share my Application for Employment 

with other affiliated companies/employers, and hereby 

agree that all terms, conditions and/or agreements 

contained in this Applicant’s Statement and Agreement, or 

any other documents pertaining to my application for 
2

employment, shall be enforceable by me and by such other 

companies/employers (including their managers, employees 

and agents), even though I have not signed a separate 

Applicant’s Statement and Agreement for those other 

companies/employers. 

By signing below, I acknowledge that the Company may 

contact my previous employers and I authorize those 

employers to disclose to the Company all records and 

information pertinent to my employment with them. In 

addition to authorizing the release of any information 

regarding my employment, I hereby fully waive any rights 

or claims I have or may have against my former employers, 

their agents, employees and representatives, as well as 

other individuals who release information to the Company, 

and release them from any and all liability, claims, or 

damages that may directly or indirectly result from the use, 

disclosure, or release of any such information by any person 

or party, whether such information is favorable or 

unfavorable to me. I authorize the persons named herein 

as personal references to provide the Company with any 

pertinent information they may have regarding myself. I 

further understand that as a condition of employment, I 

may be required to complete additional documentation 

which would permit the Company and its designated 

investigative Consumer Reporting Agency to conduct an 

investigation of my background, which may include inquiry 

into my past employment, education, and activities, 

including, but not limited to, credit, criminal background 

information and driving record.
3

 I do not wish to receive a copy of the Investigative 

Consumer (background) Report at no cost, if the Company 

collects, assembles, evaluates, compiles, reports, transmits, 

transfers, or communicates information on my character, 

general reputation, personnel characteristics, or mode of 

living, for employment purposes, which are matters of 

public record, and does not use the services of an 

investigative consumer reporting agency.

I also acknowledge that the Company utilizes a system of 

alternative dispute resolution which involves binding 

arbitration to resolve all disputes which may arise out of 

the employment context. Because of the mutual benefits 

(such as possible reduced expense and possible increased 

efficiency) which private binding arbitration can provide 

both the Company and myself, I and the Company both 

agree that any claim, dispute, and/or controversy that 

either party may have against one another (including, but 

not limited to, any claims of discrimination and 

harassment, whether they be based on the California Fair 

Employment and Housing Act, Title VII or the Civil Rights 

Act of 1964, as amended, as well as all other applicable 

state or federal laws or regulations) which would otherwise 

require or allow resort to any court or other governmental 

dispute resolution forum between myself and the Company 

(or its owners, directors, officers, managers, employees, 

agents, and parties affiliated with its employee benefit and 

health plans) arising from, related to, or having any 

relationship or connection whatsoever with my seeking 
4

employment with, employment by, or other association with 

the Company, whether based on tort, contract, statutory, or 

equitable law, or otherwise, (with the sole exception of 

claims arising under the National Labor Relations Act 

which are brought before the National Labor Relations 

Board, claims for medical and disability benefits under the 

California Workers’ Compensation Act, and Employment 

Development Department claims) shall be submitted to and 

determined exclusively by binding arbitration. In order to 

provide for the efficient and timely adjudication of claims, 

the arbitrator is prohibited from consolidating the claims of 

others into one proceeding. This means that an arbitrator 

will hear only my individual claims and does not have the 

authority to fashion a proceeding as a class or collective 

action or to award relief to a group of employees in one 

proceeding. Thus, the Company has the right to defeat any 

attempt by me to file or join other employees in a class, 

collective, or joint action lawsuit or arbitration (collectively 

“class claims”). I further understand that I will not be 

disciplined, discharged, or otherwise retaliated against for 

exercising my rights under Section 7 of the National Labor 

Relations Act, including but not limited to challenging the 

limitation on a class, collective, or joint action. I 

understand and agree that nothing in this agreement shall 

be construed so as to preclude me from filing any 

administrative charge with, or from participating in any 

investigation of a charge conducted by any government 

agency such as the Department of Fair Employment and 

Housing and/or the Equal Employment Opportunity 

Commission; however, after I exhaust such administrative 
5

process/investigation, I understand and agree that I must 

pursue any such claims through this binding arbitration 

procedure. I acknowledge that the Company’s business and 

the nature of my employment in that business affect 

interstate commerce. I agree that the arbitration and this 

Agreement shall be controlled by the Federal Arbitration 

Act, in conformity with the procedures of the California 

Arbitration Act (Cal. Code Civ. Proc. sec 1280 et seq., 

including section 1283.95 and all of the Act’s other 

mandatory and permissive rights in discovery). However, 

in addition to requirements imposed by law, any arbitrator 

herein shall be a retired California Superior Court Judge 

and shall be subject to disqualification on the same grounds 

as would apply to a judge of such court. To the extent 

applicable in civil actions in California courts, the following 

shall apply and be observed: all rules of pleading (including 

the right of demurrer), all rules of evidence, all rights to 

resolution of the dispute by means of motions for summary 

judgment, judgment on the pleadings, and judgment under 

Code of Civil Procedure Section 631.8. Resolution of the 

dispute shall be based solely upon the law governing the 

claims and defenses pleaded, and the arbitrator may not 

invoke any basis (including, but not limited to, notions of 

“just cause”) other than such controlling law. The 

arbitrator shall have the immunity of a judicial officer from 

civil liability when acting in the capacity of an arbitrator, 

which immunity supplements any other existing immunity. 

Likewise, all communications during or in connection with 

the arbitration proceedings are privileged in accordance 

with Cal. Civil Code Section 47(b). As reasonably required 
6

to allow full use and benefit of this Agreement’s 

modifications to the Act’s procedures, the arbitrator shall 

extend the times set by the Act for the giving of notices and 

setting of hearings. Awards shall include the arbitrator’s 

written reasoned opinion. If CCP § 1284.2 conflicts with 

other substantive statutory provisions or controlling case 

law, the allocation of costs and arbitrator fees shall be 

governed by said statutory provisions or controlling case 

law instead of CCP § 1284.2. Both the Company and I 

agree that any arbitration proceeding must move forward 

under the Federal Arbitration Act (9 U.S.C. § § 3-4) even 

though the claims may also involve or relate to parties who 

are not parties to the arbitration agreement and/or claims 

that are not subject to arbitration, thus the court may not 

refuse to enforce this arbitration agreement and may not 

stay the arbitration proceeding despite the provisions of 

California Code of Civil Procedure § 1281.2(c). I 

UNDERSTAND BY AGREEING TO THIS BINDING 

ARBITRATION PROVISION, BOTH I AND THE 

COMPANY GIVE UP OUR RIGHTS TO TRIAL BY JURY.

I hereby state that all the information that I provided on 

this application or any other documents filled out in 

connection with my employment, and in any interview is 

true and correct. I have withheld nothing that would, if 

disclosed, affect this application unfavorably. I understand 

that if I am employed and any such information is later 

found to be false or incomplete in any respect, I may be 

discharged from employment. 
7

I agree as follows: My employment and compensation are 

terminable at will, are for no definite period, and my 

employment and compensation may be terminated by the 

Company (employer) at any time and for any reason 

whatsoever, with or without good cause at the option of 

either the Company or myself. Consequently, all terms and 

conditions of my employment, with the exception of the 

arbitration agreement, may be changed or withdrawn at 

Company’s unrestricted option at any time, with or without 

good cause. No implied, oral or written agreements 

contrary to the express language of this agreement are 

valid unless they are in writing and signed by the President 

of the Company (or majority owner or owners if Company is 

not a corporation). No supervisor or representative of the 

Company, other than the President of the Company (or 

major owner or owners if Company is not a corporation), 

has any authority to make any agreements contrary to the 

foregoing. This agreement is the entire agreement between 

the Company and the employee regarding the rights of the 

Company or employee to terminate employment with or 

without good cause and this agreement takes the place of 

all prior and contemporaneous agreements, 

representations, and understandings of the employee and 

the Company. 

Should any term or provision, or portion thereof, be 

declared void or unenforceable, it shall be severed and the 

remainder of this agreement shall be enforced. 
8

If you have any questions regarding this statement, please 

ask a Company representative before signing. I hereby 

acknowledge that I have read the above statements and 

understand the same. 

DO NOT SIGN UNTIL YOU HAVE READ THE ABOVE 

STATEMENT & AGREEMENT

 Applicant Signature Date