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Filed 8/24/23 Ainsworth v. Boys & Girls Clubs CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

BRETT AINSWORTH,

Plaintiff and Respondent,

v.

BOYS & GIRLS CLUBS OF 

SONOMA VALLEY et al.

Defendants and Appellants.

 

 A165472

 (Sonoma County 

 Super. Ct. No. SCV-269901)

Defendants Boys and Girls Clubs of Sonoma Valley (the Club) and Cary 

Snowden, the Club’s president and chief executive officer, appeal from an 

order denying their motion to compel plaintiff Brett Ainsworth, a former 

employee, to arbitrate his employment-related and other claims. Ainsworth 

signed an employment agreement with the Club; two years later, he signed 

an agreement with Oasis Outsourcing (Oasis), which performed human 

resources and payroll functions for the Club. Both agreements contained 

arbitration clauses. The trial court concluded the later-signed Oasis 

agreement supplanted the Club agreement and, because it was procedurally 

and substantively unconscionable, the Oasis agreement was unenforceable. 

We disagree and reverse.

BACKGROUND

In May 2014, the Club hired Ainsworth as the human resources and 

volunteer manager. The day he was hired, Ainsworth signed a two-page
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employment agreement containing an arbitration clause. The clause was 

separated from other paragraphs and titled in bold text, “ARBITRATION 

OF DISPUTES.” It required Ainsworth and the Club to arbitrate any claim, 

controversy, or dispute arising between them. In addition, the parties had 

“the right to discovery in accordance with section 1283.05” of the Code of Civil 

Procedure, and the arbitrator must be a retired superior court judge or 

licensed attorney, or any other person mutually agreeable to the parties. 

Each party agreed to bear its own cost associated with arbitration —

including attorney fees — while evenly splitting the cost of the arbitrator.

The arbitration clause was followed by language in which the Club and 

Ainsworth waived their right to a jury trial. It said, this “CONSTITUTES A 

WAIVER OF [THE PARTIES’] RIGHT TO A TRIAL BY JURY OF ANY 

MATTERS SUBJECT TO ARBITRATION UNDER THIS CONTRACT.” The 

initials of Ainsworth and a Club representative appear immediately 

underneath the arbitration clause, indicating they understood the arbitration 

obligations.

Two years later, the Club hired Oasis to perform human resources and 

payroll functions for the Club. Ainsworth signed a one-page document titled

“Employee Acknowledgements.” It stated Oasis would pay Ainsworth, but 

the Club would still direct and control his “day-to-day work.” In addition, the 

agreement stated the Club and Ainsworth were free to engage in contracts 

together but “Oasis is not responsible for these things or for anything 

promised [to Ainsworth] by anyone other than Oasis.”

The Oasis agreement also contained an arbitration clause, requiring 

Ainsworth to arbitrate “any legal dispute with [the Club], Oasis, or any other 

party that may have an employment relationship [with Ainsworth].”

Additionally, arbitration would be conducted by a neutral arbitrator who 
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would abide by federal rules of evidence, the applicable statutes of limitation,

and who was authorized to grant the same remedies as a federal court “but 

no more.” It continued, “My agreement to these terms controls any 

conflicting dispute resolution agreement, including one entered into after I 

sign this document, if the conflicting agreement would prevent a matter in 

which Oasis or an insurance policy issued to Oasis is involved from being 

arbitrated, does not provide a jury waiver (if the matter is not arbitrated), or 

does not include a class action waiver (if the matter is a class action or 

potential class action.)” Ainsworth’s signature appears on the agreement —

the Club’s does not.

In March 2018, Snowden terminated Ainsworth’s employment. More

than three years later, Ainsworth filed a lawsuit seeking damages against

defendants for various claims, including wrongful termination, employment 

discrimination, and retaliation in violation of the California Fair 

Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.).

Relying on the arbitration provisions in both the Club and Oasis 

agreements, defendants moved to compel arbitration and sought a stay of 

judicial proceedings. All of Ainsworth’s claims, defendants argued, fell within 

the scope of the arbitration provisions. Defendants argued both agreements 

were enforceable and, if any provisions were unenforceable, they should be 

severed. In opposition, Ainsworth argued the arbitration agreement — not 

being specific as to which one — was invalid and unenforceable because it 

required “the employee to pay for cost and fees associated with arbitration.” 

Relevant here, Ainsworth argued the provision was “ ‘unconscionably

unilateral’ ” both in how it was written and defendants’ delay in enforcement.

The trial court denied defendants’ motion to compel arbitration. It

determined both arbitration agreements were procedurally unconscionable as
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facially adhesive contracts. The court also concluded the Oasis agreement

featured other hallmarks of procedural unconscionability, such as the 

absence of a separate title, section, or place for parties to sign or initial 

acknowledging their understanding of the clause. The court determined the 

agreement was also substantively unconscionable. Among other things, the 

agreement limited recovery to remedies authorized under federal law — the 

court concluded those remedies may not be the same as remedies authorized 

under California law; the agreement failed to indicate whether discovery was 

allowed; and it failed to identify the neutral arbitration service or provide a 

copy of the rules. The court did not examine whether the Club agreement 

was substantively unconscionable. Finally, the court concluded the Oasis 

agreement was “part of a later employment agreement and appears to be the 

operative agreement, supplanting the earlier [Club] employment and 

arbitration agreements.”

DISCUSSION

Defendants urge us to reverse the denial of its motion to compel 

arbitration and stay judicial proceedings because the trial court erred by 

finding the Oasis arbitration agreement procedurally and substantively 

unconscionable.1

The framework for addressing these issues is as follows. General 

contract law principles govern whether parties entered a binding arbitration 

agreement. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development 

1 To the extent Ainsworth suggests defendants waived their right to 

arbitrate, he fails satisfy the heavy burden of proof to establish waiver. 

(Burton v. Cruise (2010) 190 Cal.App.4th 939, 945 [waiver not lightly 

inferred].) Ainsworth filed his complaint in December 2021 and defendants 

filed their motion to compel arbitration two months later. Ainsworth does 

not demonstrate defendants unreasonably delayed their arbitration demand 

or that he suffered prejudice due to any alleged delay.
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(US), LLC (2012) 55 Cal.4th 223, 236 (Pinnacle).) The “existence of an 

enforceable arbitration agreement is established under state law principles 

involving formation, revocation and enforcement of contracts generally.” 

(Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 

357.) It is “valid, enforceable and irrevocable” unless revocable on grounds 

that exist for any contract, such as unconscionability. (Code Civ. Proc., 

§ 1281; OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 125 (Kho); Lange v. Monster 

Energy Co. (2020) 46 Cal.App.5th 436, 445.) The party seeking arbitration 

must demonstrate the existence of an agreement. (Serafin v. Balco Properties 

Ltd., LLC (2015) 235 Cal.App.4th 165, 172–173.) Where the facts are not in 

dispute, we review de novo whether a valid agreement to arbitrate was 

formed. (Id. at p. 173.)

Unconscionability includes both procedural and substantive elements. 

(Pinnacle, supra, 55 Cal.4th at p. 246.) Procedural unconscionability focuses 

on “ ‘ “oppression” ’ or ‘ “surprise” ’ due to unequal bargaining power.” 

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

83, 114 (Armendariz).) Substantive unconscionability examines the fairness 

of the terms of the agreement and whether it is “ ‘ “overly harsh” ’ or ‘ “onesided.” ’ ” (Ibid.) Though an agreement to arbitrate is unenforceable if 

elements of both procedural and substantive unconscionability exist, they 

need not be present to the same degree. (Ibid.) Like a sliding scale, “the 

more substantively oppressive the contract term, the less evidence of 

procedural unconscionability is required to come to the conclusion that the 

term is unenforceable, and vice versa.” (Ibid.) “While the scale is sliding, 

there must be some weight on each side.” (Iyere v. Wise Auto Group (2023) 

87 Cal.App.5th 747, 759.)
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At the outset, defendants contend the trial court erred by finding the 

later-executed Oasis agreement controlled the dispute here because it 

“supplanted” the earlier Club agreement. We agree.

Generally, provisions of a later-executed agreement can supersede 

those of an earlier agreement if they involve the same parties. (E.g., 

Frangipani v. Boecker (1998) 64 Cal.App.4th 860, 863 [“[w]here there is an 

inconsistency between two agreements both of which are executed by all of 

the parties, the later contract supersedes the former”].) A substitution of a 

new obligation for an existing one — a novation — is made “by agreement 

and with the intent to extinguish the prior obligation.” (Wells Fargo Bank v. 

Bank of America (1995) 32 Cal.App.4th 424, 431; Civ. Code, § 1530.) But it 

must clearly appear the parties intended to extinguish their earlier

agreement. (Wells Fargo, at p. 432.)

Defendants did not sign the Oasis agreement. Moreover, nothing in 

that agreement clearly indicates the parties — Oasis and Ainsworth —

intended it to bind the Club or to supersede the arbitration agreement signed 

by Ainsworth and the Club (even assuming they could do so). (Civ. Code, 

§ 1639 [“When a contract is reduced to writing, the intention of the parties is 

to be ascertained from the writing alone, if possible”]; Grey v. American 

Management Services (2012) 204 Cal.App.4th 803, 807, 809 [an integration 

clause “is a key factor in divining” whether the parties “ ‘intended their 

writing to serve as the exclusive embodiment of their agreement’ ”].) Indeed, 

the Oasis agreement expressly states the Club, not Oasis, directs and 

controls Ainsworth’s daily work duties. And it further disavows the existence 

of any employment contract between Ainsworth and Oasis.

The statement in the Oasis agreement — that its arbitration 

obligations controlled if other agreements failed to include an arbitration 
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clause, a jury waiver if a matter is not arbitrated, or a class action waiver if 

the matter was a class action — does not demonstrate any intent to 

supersede the agreement into which the Club and Ainsworth entered. For 

one thing, the Club agreement contains an arbitration clause, jury waiver, 

and Ainsworth’s claims do not involve a class action. Moreover, the plain 

language of the Oasis agreement acknowledges the continued existence of the 

Club agreement; it is that employment agreement between defendants and 

Ainsworth which controls here. Given that conclusion, we need not address 

whether the Oasis agreement was unconscionable.

Next, defendants argue the trial court erred in finding the Club 

agreement procedurally unconscionable. We agree with defendants —

Ainsworth, as the party opposing arbitration, had the burden of proving the 

employment agreement is unconscionable. (Pinnacle, supra, 55 Cal.4th at 

p. 247.) He failed to do so.

Ordinarily, the procedural unconscionability analysis starts with 

determining whether an agreement is a contract of adhesion — a 

standardized contract, given by the party with superior bargaining power, 

“ ‘on a take-it-or-leave-it basis.’ ” (Kho, supra, 8 Cal.5th at p. 126.) An

arbitration agreement “imposed as a condition of employment [is] typically 

adhesive” with few employees being able to decline employment because of an 

arbitration agreement. (Ibid.; Lange v. Monster Energy Co., supra, 

46 Cal.App.5th at p. 446.) But whether the contract is adhesive is not 

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

215 Cal.App.4th 695, 704 (Serpa); Peng v. First Republic Bank (2013) 

219 Cal.App.4th 1462, 1470.) Adhesion alone only establishes a low degree of 

procedural unconscionability. (Davis v. Kozak (2020) 53 Cal.App.5th 897, 907

(Davis).)
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Instead, we consider whether there was oppression or surprise in the 

agreement. (Davis, supra, 53 Cal.App.5th at p. 906.) Oppression exists when 

a contract lacked any meaningful choice or negotiations. (Pinnacle, supra,

55 Cal.4th at p. 247.) Relevant factors include the circumstances 

surrounding contract negotiations, the signing of the contract, or the amount 

of time a party is given to consider the proposed contract. (Kho, supra, 

8 Cal.5th at pp. 126–127.) Furthermore, we consider the pressure imposed 

on a party to sign, the length of the contract and the complexity of the 

challenged provision’s language, the education and experience of the party, 

and whether an attorney assisted the employee in reviewing the document. 

(Id. at p. 127.)

Here, the trial court concluded that the Club agreement — on its

face — was a contract of adhesion. Ainsworth, however, failed to provide any 

evidence the agreement was presented to him on a “take-it-or-leave-it 

basis” — that he would not be hired if he did not sign the form. (Baltazar v. 

Forever 21, Inc. (2016) 62 Cal.4th 1237, 1245; McManus v. CIBC World 

Markets Corp. (2003) 109 Cal.App.4th 76, 91.) The agreement did not state 

that Ainsworth’s assent to its terms is “ ‘in consideration’ ” of his employment 

with the Club. (Davis, supra, 53 Cal.App.5th at p. 906.)

Moreover, Ainsworth failed to present any evidence of oppression. The

record contains no evidence to illustrate the circumstances under which the

Club agreement was signed or whether he was provided a meaningful 

opportunity to review or negotiate before signing. (Kho, supra, 8 Cal.5th at 

pp. 126–127.) Nor is there evidence the Club exerted any pressure on 

Ainsworth to sign or whether an attorney assisted Ainsworth in reviewing 

the agreements. (Id. at p. 127.) To the contrary, the only evidence in the 

record suggests there was no oppression in the signing of the Club 
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agreement. In his declaration, Ainsworth listed his educational 

background — including two graduate degrees and five professional 

certificates — which supports the finding that Ainsworth was educated 

enough to understand the agreement. (Ibid.) Moreover, the arbitration 

provision is short and written in plain language. (Ibid.)

Nor was there evidence of surprise, such as “ ‘ “ ‘where the allegedly 

unconscionable provision is hidden within a prolix printed form.’ ” ’ ” (Kho, 

supra, 8 Cal.5th at p. 126.) Ainsworth does not argue — nor can he — the 

arbitration clause was hidden. The entire employment agreement is less 

than two pages long. (Roman v. Superior Court (2009) 172 Cal.App.4th 1462, 

1471 [finding no surprise where the arbitration provision was on the last 

page of a seven-page employment application].) Additionally, the arbitration 

clause was highlighted and contained in its own section titled 

“ARBITRATION OF DISPUTES.” (Serafin v. Balco Properties Ltd., LLC,

supra, 235 Cal.App.4th at p. 179 [procedural unconscionability is limited 

where an arbitration provision is highlighted for the employee].) Finally, 

Ainsworth initialed immediately underneath the arbitration clause indicating

he understood. In sum, Ainsworth has not met his burden of establishing the 

Club agreement is procedurally unconscionable beyond being standardized 

and on a preprinted form.

Finally, defendants argue that, to the extent the Club agreement 

contains substantively unconscionable provisions, the agreement is 

nonetheless enforceable because any such provisions can be severed. We 

agree. 

Even assuming a minimal amount of procedural unconscionability in 

the Club agreement, we must find a high level of substantive 

unconscionability to render it unenforceable. (Ajamian v. CantorCO2e, L.P.
10

(2012) 203 Cal.App.4th 771, 796.) We do not. “In assessing substantive 

unconscionability, the paramount consideration is mutuality.” (Abramson v. 

Juniper Networks, Inc. (2004) 115 Cal.App.4th 638, 664.) It is insufficient for 

an agreement to slightly favor one party. (Pinnacle, supra, 55 Cal.4th at 

p. 246.) Rather the agreement must be “ ‘so one-sided as to “shock the 

conscience.” ’ ” (Ibid.) To avoid being substantively unconscionable, an 

arbitration agreement must meet the following minimum standards: it must 

provide for (1) a neutral arbitrator, (2) adequate discovery, (3) a written 

decision, (4) the same remedies available in court, and (5) it must limit the 

expenses an employee must pay in arbitration. (Armendariz, supra, 

24 Cal.4th at p. 102.)

Here, the Club agreement requires both parties to arbitrate their 

claims. (Armendariz, supra, 24 Cal.4th at pp. 115–116.) The agreement 

further satisfies the neutral arbitration requirement. It mandates an 

arbitrator be “a retired Superior Court Judge or a licensed California 

attorney, or any other person mutually agreeable to the parties.” Although 

the agreement does not explicitly provide the arbitrator must be neutral, it 

requires arbitration to proceed in accordance with the California Arbitration 

Act (Code Civ. Proc., § 1280 et seq.). That act provides, in relevant part, 

“[u]nless the arbitration agreement otherwise provides, . . . [t]he arbitration 

shall be by a single neutral arbitrator.” (Id., § 1282, subd. (a).) Because the 

agreement does not state otherwise, we conclude it requires the appointment 

of a neutral arbitrator.

Similarly, the agreement satisfies both the discovery and written 

decision rewards requirements. It states discovery will be allowed in 

accordance with Code of Civil Procedure section 1283.05, which has been 

deemed adequate for arbitration purposes. (Armendariz, supra, 24 Cal.4th at 
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pp. 105–106 [inferring “that when parties agree to arbitrate statutory claims, 

they also implicitly agree, absent express language to the contrary, to such 

procedures as are necessary to vindicate that claim”].) And while the 

agreement does not state a written decision will be offered, when an 

arbitration agreement “covers FEHA claims and is silent as to the minimal 

elements of fairness required by Armendariz, courts will infer those terms.”

(Iyere v. Wise Auto Group, supra, 87 Cal.App.5th at p. 761.) Since the 

arbitration clause covers “wrongful termination or harassment, and any type 

of discrimination” and nothing in the agreement precludes issuing a written 

decision, we interpret it to require a written decision.

Defendants, however, concede there are two provisions in the Club 

agreement that are substantively unconscionable; we accept their concession. 

First, the agreement states “[e]ach party shall bear its own respective costs 

and expense, including attorney fees,” regardless of the type of action 

brought. This limits Ainsworth’s ability to potentially receive an award of 

attorney fees, an award expressly allowed under FEHA. (Gov. Code, § 12965, 

subd. (c)(6) [authorizing the court to award the prevailing party “reasonable 

attorney’s fees and costs, including expert witness fees”].) Denying an 

employee an award of attorney’s fees is substantively unconscionable. 

(Serpa, supra, 215 Cal.App.4th at pp. 709–710; Armendariz, supra, 

24 Cal.4th at pp. 103–104.)

Second, the provision requiring Ainsworth to pay one-half of the 

arbitration costs is unconscionable. When mandatory arbitration is a 

condition of employment, the arbitration agreement generally cannot require 

employees “to bear any type of expense that the employee would not be 

required to bear” if they brought the action in court. (Armendariz, supra, 

24 Cal.4th at pp. 110–111.) This ensures “that employees bringing FEHA 
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claims will not be deterred by costs greater than the usual costs incurred 

during litigation, costs that are essentially imposed on an employee by the 

employer.” (Id. at p. 111.)

Concluding these provisions are substantively unconscionable does not 

require voiding the entire arbitration agreement. Courts have discretion to 

sever unconscionable clauses and enforce the remainder of the contract. (Civ.

Code, § 1670.5, subd. (a); Armendariz, supra, 24 Cal.4th at p. 124.) Indeed, 

there is a strong preference for courts to sever unconscionable provisions 

unless unconscionability permeates the entire agreement. (De Leon v. 

Pinnacle Property Management Services, LLC (2021) 72 Cal.App.5th 476, 

492.) Specifically, examining 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.” (Armendariz, at p. 124.) But 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.)

Severing the unconscionable attorney fees and arbitration cost 

provisions here is appropriate. Both can be removed without having to 

reform the Club agreement by augmenting it with additional terms, 

indicating unconscionability does not permeate the agreement. (Armendariz, 

supra, 24 Cal.4th at pp. 125–126.) Indeed, courts have severed provisions 

limiting attorney fees awards — a restriction that has been described as 

collateral to the main purpose of the agreement — enforcing the remainder of 

the agreement. (Serpa, supra, 215 Cal.App.4th at p. 711.) Doing so here 

results in each party being responsible for its own attorney fees unless FEHA 

or other statutes compel a different result. (Serpa, at p. 710, fn. 8; Iyere v. 

Wise Auto Group, supra, 87 Cal.App.5th at p. 761 [inferring terms where 
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agreement is silent].) Similarly, provisions requiring employees to pay the 

costs of arbitration have also been severed. (McManus v. CIBC World 

Markets Corp., supra, 109 Cal.App.4th at pp. 101–102.) By striking that 

provision, the Club agreement is silent on costs, thus permitting a court to 

infer the employer must pay arbitration costs. (Armendariz, at p. 113.)

To the extent Ainsworth contends, relying on Martinez v. Master 

Protection Corp. (2004) 118 Cal.App.4th 107, one substantively 

unconscionable provision alone renders the entire agreement unenforceable, 

we disagree. While courts may indeed find unconscionability permeates an 

agreement when there is more than one unconscionable provision and refuse 

to enforce it, those are not the circumstances here. (Ramirez v. Charter 

Communications, Inc. (2022) 75 Cal.App.5th 365, 386; Lange v. Monster 

Energy Co., supra, 46 Cal.App.5th at p. 454.) Both the attorney fees and 

arbitration cost provisions are collateral to the main purpose of the 

employment agreement and less egregious than other arbitration agreements 

containing, for example, unconscionably unilateral arbitration obligations. 

(Compare with Armendariz, supra, 24 Cal.4th at p. 124 [severance 

inappropriate when the lack of mutuality permeated the agreement]; Davis, 

supra, 53 Cal.App.5th at p. 918 [same]; Martinez, at pp. 115, 119 [the costsplitting provision, in addition to, the lack of mutuality of the arbitration 

provisions, and a six-month statute of limitation provision that unlawfully 

restricted an employee’s ability to vindicate rights indicated a “ ‘systemic 

effort to impose arbitration on an employee . . . as an inferior forum that 

works to the employer’s advantage’ ”].) The agreement does not contain such 

unilateral arbitration obligations. And severing two sentences in the 

arbitration clause regarding costs and attorney fees cures the substantive 

unconscionability. (Armendariz, at p. 125.)
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Given the Club agreement’s minor, if any, procedural unconscionability 

and the fact that substantively unconscionable provisions are collateral to the 

purpose of the agreement, the interests of justice are best served by severing 

the unconscionable provisions and enforcing the remaining provisions.

DISPOSITION

The order denying defendants’ motion to compel arbitration and to stay 

proceedings is reversed. On remand, the trial court shall vacate its order 

denying the motion, strike the limitation on the attorney fees provision and 

the arbitration cost provision, and enforce the remaining provisions. In the 

interests of justice, the parties are to bear their own costs.
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_________________________

Rodríguez, J.

WE CONCUR:

_________________________

Fujisaki, Acting P. J.

_________________________

Petrou, J.

A165472