Filed 4/2/15 Tawfik-Oshana v. Wells Fargo Advisors CA6 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 

SIXTH APPELLATE DISTRICT 

MERA TAWFIK-OSHANA, 

Plaintiff and Appellant, 

v. 

WELLS FARGO ADVISORS, LLC et al., 

Defendants and Respondents. 

 H039626 

 (Santa Clara County 

 Super. Ct. No. 1-12-CV-222670) 

Plaintiff Mera Tawfik-Oshana appeals from a judgment entered after the trial court 

denied her petition to vacate an arbitration award in favor of defendants Wells Fargo 

Advisors, LLC, also known as Wachovia Securities, LLC, formerly doing business as 

Wells Fargo Investments, LLC; Robert Kricena; and George von Zedlitz (collectively, 

Wells Fargo) and granted defendants’ petition to confirm the award. She contends that 

(1) the trial court’s finding that she failed to participate in the arbitration was “without 

foundation and flawed,” (2) the arbitrator was “unqualified,” (3) her Labor Code claims 

were not arbitrable, (4) her Business and Professions Code claim was not arbitrable, and 

(5) the arbitration agreements were unconscionable and unenforceable under Armendariz 

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

abrogated in part on another ground in AT&T Mobility LLC v. Concepcion (2011) 

__U.S.__ [131 S.Ct. 1740, 1746] (Concepcion). We affirm. 
2 

I. Background 

Tawfik-Oshana was working as an investment advisor for Washington Mutual 

Bank (WAMU) and was “very successful in that role” when she was offered a position as 

a senior financial consultant for Wells Fargo in the fall of 2007. She claims that the 

senior regional sales manager who offered her the position promised her a $650,000 

“sign-on bonus” and told her that she would be eligible for an additional $350,000 bonus 

in two years if she continued to perform at the level she had attained during the past year 

at WAMU. Tawfik-Oshana accepted Wells Fargo’s written offer of employment on 

December 13, 2007. 

On December 18, 2007, she signed a Form U4 Uniform Application for Securities 

Industry Registration or Transfer (Form U4). Form U4 is a Financial Industry Regulatory 

Authority (FINRA) form that all “associated persons” of broker dealers, investment 

advisors, and securities issuers are required by law to sign before engaging in securities 

transactions as representatives of FINRA-member firms like Wells Fargo.1

 (17 C.F.R. 

§ 240.15b7-1; 10 Cal. Code Regs., § 260.210.) “The Form U4 is a contract between the 

regulatory organization . . . and the individual registrant. [Citation.]” (Valentine Capital 

Asset Management, Inc. v. Agahi (2009) 174 Cal.App.4th 606, 613 (Valentine).) 

 

1

 “FINRA is the self-regulatory organization [SRO] for securities brokers and 

brokerage firms and is the successor to the National Association of Securities Dealers, 

Inc. (NASD). [Citation.]” (Ronay Family Limited Partnership v. Tweed (2013) 216 

Cal.App.4th 830, 834, fn. 1 (Ronay).) “FINRA regulates member brokerage firms and 

exchange markets, subject to oversight by the SEC.” (Mathis v. United States SEC (2d. 

Cir. 2012) 671 F.3d 210, 215 (Mathis).) “FINRA was created in 2007 through the 

consolidation of the [NASD] and the member regulation, enforcement, and arbitration 

operations of the New York Stock Exchange. [Citations.]” (Sacks v. SEC (9th Cir. 2011) 

648 F.3d 945, 948, fn. 1.) “On July 26, 2007, . . . the NASD changed its corporate name 

to the Financial Industry Regulatory Authority, Inc. (‘FINRA’). [Citations.]” (Mathis, at 

p. 211, fn. 1.) 
3 

The Form U4 that Tawfik-Oshana signed contained an arbitration provision 

stating, “I agree to arbitrate any dispute, claim or controversy that may arise between me 

and my firm, or a customer, or any other person, that is required to be arbitrated under the 

rules, constitutions, or by-laws of the SROs indicated in Section 4 . . . as may be amended 

from time to time and that any arbitration award rendered against me may be entered as a 

judgment in any court of competent jurisdiction.” Tawfik-Oshana indicated one SRO in 

section 4, the NASD. 

Tawfik-Oshana resigned her position at WAMU on December 22, 2007, and 

reported for orientation at Wells Fargo that same day. She was given various documents 

to sign, including a promissory note “[i]n consideration of a loan of six hundred fifty 

thousand dollars” from Wells Fargo. The note provided that Wells Fargo would forgive 

the loan principal and the interest on the loan in 84 equal monthly increments 

commencing on the first day of the month following disbursement of the proceeds and 

continuing each month until the loan was repaid. The note stated that “[t]he 

compensation and withholding will be reported in the appropriate pay period for each 

monthly forgiveness.” The note also provided that the outstanding balance would 

“immediately become due and payable” upon the happening of specified events of 

default, including termination of employment “for any reason whatsoever.” 

The note contained its own arbitration provision. That provision stated that “[a]ny 

controversy regarding the validity, enforcement or construction of this Note or any 

dispute concerning the Undersigned’s employment or termination of employment with 

[Wells Fargo] shall be resolved by arbitration under the then-prevailing Rules of the 

[NASD]. Any state or federal court having jurisdiction to enter such an award may enter 

judgment upon any award rendered by the arbitrator(s) . . . .” The note further provided 

that “[i]n the event any action or lawsuit is required to be brought for collection of any 

amount under this Note, the Undersigned promises to pay reasonable attorney’s fees and 

costs, including all fees and costs involved in collection.” 
4 

The note stated that “[t]he Undersigned has reviewed the terms of this Note and 

has participated in its drafting, and agrees that the rule of construction by which 

ambiguities are resolved against the drafting party shall not apply in any interpretation of 

it. . . . [¶] The Undersigned executes this Note without reliance on any oral 

representations. This Note contains the entire agreement between the Undersigned and 

[Wells Fargo] with respect to the matters addressed in it, and supersedes all prior 

agreements, written or oral, between the Undersigned and [Wells Fargo] on such matters. 

No other agreement, statement of [sic] promise made by any party with respect to any of 

the matters addressed in this note will be binding or valid.” 

Tawfik-Oshana received a check for $650,000 about a week after she signed the 

note. She resigned from Wells Fargo four years later, in February 2011. On 

September 6, 2011, Wells Fargo demanded repayment of the balance owing on the note. 

On February 17, 2012, Wells Fargo initiated an arbitration proceeding before 

FINRA. Wells Fargo declared in its statement of claim in arbitration that it was a brokerdealer registered with the United States Securities and Exchange Commission [SEC] 

“and, among others, the State of California.” It asserted that FINRA had jurisdiction over 

the claim because Wells Fargo was a member of FINRA (formerly known as the NASD) 

and Tawfik-Oshana was at all times during her employment with Wells Fargo “an 

associated person of a member of FINRA.” Wells Fargo alleged that Tawfik-Oshana 

owed $386,635.68 plus interest and expenses under the note. 

Tawfik-Oshana ignored the pending arbitration proceeding and filed suit against 

Wells Fargo on April 17, 2012. Her complaint asserted causes of action for violations of 

the Labor Code, violation of Business and Professions Code section 17200, 

misrepresentation, and breach of oral contract. She alleged that she was enticed to join 

Wells Fargo with oral promises of a $650,000 “sign-on bonus” and a possible $350,000 

additional bonus in two years. She was “surprised and shocked” to learn that the “signon bonus” would be treated as a loan. She asserted that she was given no opportunity to 
5 

negotiate the loan or to seek legal advice before she signed it. She “felt she had no 

choice but to sign” it because she had ended her previous employment that morning. 

Within weeks after signing the note, she transferred $20 million of client brokerage and 

annuity accounts from WAMU to Wells Fargo. She claimed that her working 

environment began to deteriorate after that and that she began to encounter “other work 

conditions that were materially different from what she had been promised.” The 

“outright hostile work environment” and Wells Fargo’s failure to correct her 

compensation package “forced” her to resign on February 5, 2011. The complaint prayed 

for damages and for a declaration that the arbitration provision in the note was 

unconscionable and therefore unenforceable. 

On April 23, 2012, Tawfik-Oshana filed a “Notice and Objection” with FINRA. 

The document explained “as a courtesy” that she had filed suit against Wells Fargo and 

objected “to any assertion of jurisdiction over any claims between her and WELLS by 

FINRA, NASD, or any other arbitral forum or entity.” 

On May 8, 2012, FINRA notified Tawfik-Oshana that the case was ready for the 

appointment of an arbitrator. The letter warned her that if FINRA did not receive her 

arbitrator ranking lists by May 29, 2012, “you will be deemed to have accepted all 

Arbitrators on the lists.” In a separate letter, FINRA informed her that it had not received 

her statement of answer and that if that and other deficiencies were not corrected within 

30 days, “the panel will proceed with the arbitration as though the deficient counterclaim, 

cross claim or third party claim had not been made.” In a third letter, FINRA informed 

her that because it had not received her statement of answer, “pursuant to Code of 

Arbitration Procedure Rule 13806, no hearing will be held. This case will be decided 

based on the pleadings and other materials submitted by the parties.” 

 On May 23, 2012, Wells Fargo filed a petition in the trial court to compel 

arbitration and to stay Tawfik-Oshana’s lawsuit. Wells Fargo asserted that the Federal 

Arbitration Act (9 U.S.C. §§ 1-16 (FAA)) required and state law encouraged enforcement 
6 

of the arbitration agreement in the Form U4, which was “a contract evidencing a 

transaction involving commerce” under the FAA. Wells Fargo stated that it had not 

waived its right to arbitration and that no grounds existed for revocation of the 

agreement. 

On May 24, 2012, FINRA confirmed to Tawfik-Oshana’s counsel that without a 

court order staying the arbitration, a stipulation extending the answer deadline, or the 

filing of an answer, the matter would be “ripe to be decided on the papers” as soon as the 

arbitrator was appointed and entered a ruling. On May 31, 2012, the trial court stayed the 

arbitration proceedings pending a ruling on Wells Fargo’s petition to compel arbitration. 

Tawfik-Oshana opposed the petition to compel arbitration on the ground that the 

arbitration agreements were unenforceable. She argued that the arbitration provision in 

the note violated California law and public policy and was procedurally and substantively 

unconscionable and therefore unenforceable, that the Form U4 arbitration provision was 

unenforceable “for the same reasons,” and that her Business and Professions Code claim 

was not arbitrable at all because she was “functioning as a private attorney general in 

seeking an injunction . . . on behalf of the general public.” 

In July 2012, the trial court granted Wells Fargo’s petition to compel arbitration 

and stayed Tawfik-Oshana’s lawsuit. The order stated that “an employee signing a 

written contract is conclusively presumed to know its contents and to assent to them. 

[Citation.] The evidence . . . indicates that the Plaintiff signed and executed two separate 

documents containing an arbitration provision . . . . In reviewing the recent case of 

Hoover v. American Income Life Insurance Company [(2012) 206 Cal.App.4th 1193 

(Hoover)]), the Court finds that there is sufficient evidence to conclude that the [FAA] 

applies and therefore the general rule that an arbitration agreement does not apply to an 

action enforcing statutes governing collection of unpaid wages is inapplicable.” 

Tawfik-Oshana sought writ relief. This court summarily denied her petition. 

(Tawfik-Oshana v. Superior Court, H038776, Nov. 27, 2012.) 
7 

On July 30, 2012, FINRA notified Tawfik-Oshana that the arbitration would 

proceed with or without her participation. FINRA sent her a confirming e-mail on 

August 8, 2012. By letter dated August 18, 2012, it informed her that an arbitrator had 

been appointed and that case materials would be forwarded to the arbitrator for a decision 

without a hearing. 

Wells Fargo’s “Final Submission” to the arbitrator argued that the terms of the 

note were clear and unambiguous, that Tawfik-Oshana had a duty to learn and know the 

contents of the contract before she signed it, and that she should be held to her 

contractual obligations. Wells Fargo reiterated that Tawfik-Oshana never filed an answer 

to its statement of claim. 

The arbitrator awarded Wells Fargo $386,723.18 in compensatory damages, 

interest at a rate of 4.13 percent per year until the award was paid in full, and $12,586.03 

in attorney’s fees and costs. 

Tawfik-Oshana petitioned to vacate the award on grounds that “the misconduct of 

a neutral arbitrator substantially prejudiced [her] rights” and “the arbitrator exceeded 

his . . . authority, and the award cannot not be fairly corrected.” She argued that the 

arbitrator “did not provide a written decision . . . with regard to her unwaivable statutory 

rights under the . . . Labor Code,” that the decision violated her statutory rights, and that 

“[t]he arbitration was procedurally and substantively unconscionable because it was a 

mandatory agreement created by the employer on a take-it-or leave it [sic] basis and 

allowed an assessment of fees and costs against the employee.” 

Wells Fargo opposed Tawfik-Oshana’s petition and petitioned to confirm the 

award. Wells Fargo argued among other things that any alleged failure of the arbitrator 

to rule on Tawfik-Oshana’s Labor Code and declaratory relief claims (which she did not 

raise as defenses or counterclaims) was “entirely Plaintiff’s fault” and did not in any 

event constitute grounds to vacate the award. 
8 

On March 20, 2013, the trial court issued a tentative ruling in favor of Wells 

Fargo. Tawfik-Oshana did not request oral argument. In a single order filed on 

April 3, 2013, the trial court denied Tawfik-Oshana’s petition to vacate the award and 

granted Wells Fargo’s petition to affirm it. The order stated that Tawfik-Oshana “had the 

opportunity to participate in the [arbitration] process . . . and chose not to do so. 

Accordingly, the Court finds that there is no valid legal or factual basis to set aside or 

vacate the arbitration award.” 

Tawfik-Oshana filed a timely notice of appeal. 

II. Discussion 

A. Appealability 

Tawfik-Oshana asserts that her appeal is from a judgment entered on May 2, 2013. 

There is no judgment in the record. Further, her notice of appeal asserted that she was 

appealing from an April 8, 2013 “Order Confirming Arbitration Award under CCP 

section 1285 et seq.” There is no order with that caption or any order with that date in the 

record. Thus, we must as a preliminary matter determine whether this appeal is properly 

before us. (Olson v. Cory (1983) 35 Cal.3d 390, 398.) 

The right to appeal is “wholly statutory.” (Powers v. City of Richmond (1995) 10 

Cal.4th 85, 109.) “[O]nce a petition to confirm, correct, or vacate [an arbitration award] 

is filed, the superior court has only four choices: It may (1) confirm the award, (2) 

correct the award and confirm it as corrected, (3) vacate the award, or (4) dismiss the 

proceedings.” (Sunnyvale Unified School Dist. v. Jacobs (2009) 171 Cal.App.4th 168, 

175.) “If the trial court which does not dismiss the petition also does not correct or 

vacate an arbitration award, it must confirm the award. Entry of judgment in conformity 
9 

therewith is required (Code Civ. Proc., § 1287.4),[2

] resulting in an appealable judgment 

under . . . section 1294, subdivision (d).” (Law Offices of David S. Karton v. Segreto

(2009) 176 Cal.App.4th 1, 9.) 

Here, the trial court entered its “Order Denying Plaintiff’s Petition to Vacate 

Arbitration Award and Granting Defendant’s Petition to Confirm Arbitration Award” on 

April 3, 2013. We assume that the “April 8, 2013” date in Tawfik-Oshana’s notice of 

appeal was a typographical error and that she intended to appeal from the April 3, 2013 

order. “However, neither an order denying a petition to vacate the award under . . . 

section 1286.2 nor an order confirming an award is directly appealable. [Citations.] 

Review of an order denying a petition to vacate may only be had upon appeal from the 

judgment of confirmation or by writ of mandate. [Citation.]” (Ahdout v. Hekmatjah 

(2013) 213 Cal.App.4th 21, 30 (Ahdout); § 1294.) As the record does not include a copy 

of the judgment, we take judicial notice on our own motion of the trial court’s public 

record docket entries, which reflect entry of judgment on May 2, 2013. (Evid. Code, 

§ 452, subd. (d); see Truong v. Nguyen (2007) 156 Cal.App.4th 865, 872.) We treat this 

appeal as taken from the May 2, 2013 judgment. (Ahdout, at p. 30.) 

B. Applicable Law and Standard of Review 

California and federal law favor the enforcement of contractual arbitration 

provisions. (§ 1281; 9 U.S.C. § 2.) The FAA governs arbitration provisions in written 

contracts “evidencing a transaction involving commerce . . . .” (9 U.S.C. § 2.) Both the 

Form U4 and the note that Tawfik-Oshana signed fit that definition. (Baker v. Aubry 

(1989) 216 Cal.App.3d 1259, 1263 (Baker); see Gilmer v. Interstate/Johnson Lane Corp.

(1991) 500 U.S. 20, 21-25 [implicitly holding FAA applicable to Form U4 registration]; 

 

2

 Subsequent statutory references are to the Code of Civil Procedure unless 

otherwise indicated. 
10 

see also Cortina v. Citigroup Global Markets, Inc. (S.D. Cal., Aug. 19, 2011, Civ. No. 

10cv2423-L(RBB)) 2011 U.S. Dist. Lexis 92954 at pp. 1, 4, & fn. 1 [holding that FAA 

governed dispute arising out of promissory note “related to a signing bonus [that] 

Petitioner received at the beginning of his employment as a financial advisor . . . .”].) 

The FAA governs here. 

“[T]he basic purpose of the [FAA] is to overcome courts’ refusals to enforce 

agreements to arbitrate.” (Allied-Bruce Terminix Cos. v. Dobson (1995) 513 U.S. 265, 

270.) Section 2 is “the primary substantive provision of the Act, declaring that a written 

agreement to arbitrate ‘in any . . . contract . . . involving commerce . . . shall be valid, 

irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the 

revocation of any contract.’ [Citation.]” (Moses H. Cone Memorial Hosp. v. Mercury 

Constr. Corp. (1983) 460 U.S. 1, 24.) “ ‘The effect of the section is to create a body of 

federal substantive law of arbitrability, applicable to any arbitration agreement within the 

coverage of the Act.’ [Citation.] Enacted pursuant to the Commerce Clause, . . . this 

body of substantive law is enforceable in both state and federal courts. [Citation.] . . . 

‘[I]n enacting [section] 2 . . . , Congress . . . withdrew the power of the states to require a 

judicial forum for the resolution of claims which the contracting parties agreed to resolve 

by arbitration.’ [Citation.] ‘Congress intended to foreclose state legislative attempts to 

undercut the enforceability of arbitration agreements.’ [Citation.] Section 2, therefore, 

embodies a clear federal policy of requiring arbitration unless the agreement to arbitrate 

is not part of a contract evidencing interstate commerce or is revocable ‘upon such 

grounds as exist at law or in equity for the revocation of any contract.’ [Citation.]” 

(Perry v. Thomas (1987) 482 U.S. 483, 489 (Perry).) “[N]othing in the Act indicat[es] 

that the broad principle of enforceability is subject to any additional limitations under 

state law.” (Id. at pp. 489-490.) 

The savings clause in section 2 of the FAA “preserves generally applicable 

contract defenses.” (Concepcion, supra, __ U.S. __ [131 S.Ct. at p. 1748].) Under that 
11 

clause, “ ‘[s]tate law, whether of legislative or judicial origin, is applicable if that law 

arose to govern issues concerning the validity, revocability, and enforceability of 

contracts generally.’ ” (Doctor’s Assocs., Inc. v. Casarotto (1996) 517 U.S. 681, 685 

(Doctor’s Assocs.).) “Thus, generally applicable contract defenses, such as fraud, duress, 

or unconscionability, may be applied to invalidate arbitration agreements without 

contravening [section] 2.” (Doctor’s Assocs., at p. 687.) “Courts may not, however, 

invalidate arbitration agreements under state laws applicable only to arbitration 

provisions.” (Ibid.) “By enacting [section] 2, . . . Congress precluded States from 

singling out arbitration provisions for suspect status, requiring instead that such 

provisions be placed ‘upon the same footing as other contracts.’ [Citation.]” (Doctor’s 

Assocs., at p. 687.) 

The FAA does not preempt state law mechanisms for enforcing or vacating 

arbitration awards, because those mechanisms are procedural rather than substantive. 

(Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1350-1351

(DIRECTV).) “ ‘[T]he United States Supreme Court does not read the FAA’s procedural 

provisions to apply to state court proceedings.’ ” (DIRECTV, at p. 1351; see Southland 

Corp. v. Keating (1984) 465 U.S. 1, 16, fn. 10 (Southland).) “ ‘[N]othing in the 

legislative reports and debates [on the FAA] evidences a congressional intention that 

postaward and state court litigation rules be preempted so long as the basic policy 

upholding the enforceability of arbitration awards remained in full force and effect.’ 

[Citation.]” (DIRECTV, at p. 1352.) 

Section 1286.2 lists the exclusive grounds for vacating a nonjudicial arbitration 

award. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 28.) It provides in pertinent 

part that “the court shall vacate the award if the court determines any of the following: 

[¶] . . . [¶] (3) The rights of the party were substantially prejudiced by misconduct of a 

neutral arbitrator. [¶] (4) The arbitrators exceeded their powers and the award cannot be 

corrected without affecting the merits of the decision upon the controversy 
12 

submitted. . . . .” (§ 1286.2, subd. (a).) “[A]n arbitrator exceeds his powers by acting 

without subject matter jurisdiction, deciding an issue that was not submitted to 

arbitration, arbitrarily remaking the contract, upholding an illegal contract, issuing an 

award that violates a well-defined public policy or statutory right, fashioning a remedy 

that is not rationally related to the contract, or selecting a remedy not authorized by law. 

[Citations.]” (Gravillis v. Coldwell Banker Residential Brokerage Co. (2010) 182 

Cal.App.4th 503, 511 (Gravillis).) 

“The decision to confirm or vacate an arbitration award lies with the trial court.” 

(Betz v. Pankow (1993) 16 Cal.App.4th 919, 923.) “We review de novo the trial court’s 

order confirming the arbitration award.” (Gravillis, supra, 182 Cal.App.4th at p. 511; see 

Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 376, fn. 9.) “We must 

accept the trial court’s findings of fact if substantial evidence supports them, and we must 

draw every reasonable inference to support the award.” (Alexander v. Blue Cross of 

California (2001) 88 Cal.App.4th 1082, 1087.) 

C. Failure to Participate in the Arbitration Process 

Tawfik-Oshana challenges the trial court’s conclusion that she failed to participate 

in the arbitration process as “without foundation and flawed.” She argues that “the 

record discloses no such ‘failure.’ ” We disagree. The arbitrator expressly found that 

Tawfik-Oshana did not sign the February 2012 submission agreement. The record 

further establishes that she did not file a statement of answer even after FINRA warned 

her in writing that she needed to correct “all deficiencies” within 30 days to avoid having 

the matter decided without any answer or counterclaim from her and without a hearing. 

Even after the trial court ordered the matter to arbitration, Tawfik-Oshana declined to 

submit an answer or a counterclaim. The record amply supports the trial court’s finding 

that she failed to participate in the arbitration process. 
13 

FINRA Code of Arbitration Procedure, rule 13806 describes the procedure to be 

followed in such situations. The rule applies in arbitrations involving a FINRA 

member’s claim that an associated person failed to pay money owed on a promissory 

note. It provides that if the associated person does not file an answer, a single arbitrator 

will be appointed, no initial prehearing conference or hearing will be held, and the 

arbitrator will render an award based on the pleadings and other materials submitted by 

the parties. 

Tawfik-Oshana maintains that she did participate in the arbitration by filing her 

“Notice and Objection” and “by allowing all her Superior Court documents and pleadings 

to be reviewed” by the arbitrator. She provides no record cite to support the latter 

assertion. “ ‘It is the duty of counsel to refer the reviewing court to the portion of the 

record which supports appellant’s contentions on appeal.’ ” (Sakaguchi v. Sakaguchi 

(2009) 173 Cal.App.4th 852, 862.) “Each and every statement in a brief regarding 

matters that are in the record on appeal, whether factual or procedural, must be supported 

by a citation to the record. This rule applies regardless of where the reference occurs in 

the brief.” (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 96, fn. 2; Cal. Rules of 

Court, rule 8.204(a)(1)(C).) “ ‘The appellate court is not required to search the record on 

its own seeking error.’ [Citation.] Thus, ‘[i]f a party fails to support an argument with 

the necessary citations to the record, . . . the argument [will be] deemed to have been 

waived. [Citations.]” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) 

To the extent that Tawfik-Oshana may be relying on the arbitrator’s statement in 

the award “acknowledg[ing] that he . . . read the pleadings and other materials filed by 

the parties,” she takes that statement out of context. We read the acknowledgment to 

refer to the pleadings and other materials that the parties filed with FINRA. There is no 

evidence in the record that the arbitrator was provided with or that he reviewed any trial 

court documents. The record establishes that the parties filed with FINRA and that the 

arbitrator reviewed (1) Wells Fargo’s signed submission agreement and its statement of 
14 

claim, to which it attached a copy of the note and a copy of its demand letter, (2) TawfikOshana’s two-page “Notice and Objection,” and (3) Wells Fargo’s “Final Submission,” 

to which it attached another copy of the note, another copy of Tawfik-Oshana’s “Notice 

of Objection,” a copy of the trial court’s order granting the petition to compel arbitration 

and staying Tawfik-Oshana’s lawsuit, a “Summary of Amounts Due,” a copy of a FINRA 

form reflecting Tawfik-Oshana’s termination date, another copy of the demand letter, and 

a copy of the $650,000 check that Tawfik-Oshana received. We reject Tawfik-Oshana’s 

argument that she participated in the arbitration by “allowing” the arbitrator to review 

documents she filed in the trial court. 

To the extent that Tawfik-Oshana contends that the arbitrator committed 

misconduct by failing to decide issues that she raised in the trial court but never 

submitted for arbitration, we reject that contention as well. Her appellate briefs contain 

numerous general assertions that the arbitrator “rejected” arguments from her trial court 

pleadings and “never decided” various other issues that she raised in the trial court. 

There is no evidence that the arbitrator was aware of those arguments. Because TawfikOshana failed to present these arguments for decision, she cannot fault the arbitrator for 

failing to decide them. 

D. Qualifications of the Arbitrator 

Tawfik-Oshana asserts that the arbitrator was “unqualified” because he “has no 

law degree” and his “experience shows nothing related to public policy employment 

issues, in particular claims under the Labor Code.” She does not develop the argument 

further or cite any authority to support the proposition that these are grounds for vacating 

an arbitration award. They are not. (§ 1286.2.) She does not claim that either arbitration 

agreement required FINRA to provide an arbitrator who possessed a law degree and 

particularized experience in deciding Labor Code claims. Neither agreement includes 
15 

any such requirement. She does not assert that any FINRA rule was violated. We find 

no evidence of any rules violation in the record. 

“It is the duty of counsel by argument and the citation of authorities to show that 

the claimed error exists.” (In re Estate of Randall (1924) 194 Cal. 725, 728 (Randall); 

see Cal. Rules of Court, rule 8.204(a)(1)(B).) “We are not bound to develop appellants’ 

arguments for them.” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 

830.) “ ‘Appellate briefs must provide argument and legal authority for the positions 

taken. “When an appellant fails to raise a point, or asserts it but fails to support it with 

reasoned argument and citations to authority, we treat the point as waived.” ’ [Citation.]” 

(Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) Because 

Tawfik-Oshana failed to support her complaints about the arbitrator’s purported lack of 

qualifications with reasoned argument or citations to authority, we reject them as not 

properly raised. (Randall, at p. 728.) 

E. Labor Code Claims 

Relying on Hoover, Tawfik-Oshana asserts that her Labor Code claims “derive 

from the ‘public policies’ imbedded in the Labor Code” and that “[t]he arbitration 

process may never be used as a vehicle to waive those statutorily protected rights.” She 

complains that the trial court “intentionally ignored” statements in Hoover that “[a]s a 

general rule, state statutory wage and hour claims are not subject to arbitration” and that 

“[a]n individual arbitration agreement also does not apply to an action to enforce statutes 

governing collection of unpaid wages, which ‘may be maintained without regard to the 

existence of any private agreement to arbitrate . . . .’ ([Lab. Code,] § 229.)” (Hoover, 

supra, 206 Cal.App.4th at pp. 1206-1207.) 

We reject the contention that the public policies imbedded in the Labor Code 

preclude arbitration of Tawfik-Oshana’s Labor Code claims. The FAA applies here. The 

United States Supreme Court has repeatedly held that where the FAA applies, it preempts 
16 

conflicting state laws. (E.g., Southland, supra, 465 U.S. at p. 16; Perry, supra, 482 U.S. 

at p. 491.) 

Perry involved a stockbroker’s claim for unpaid commissions under Labor Code 

section 229, which provides that wage collection actions can be litigated in court 

notwithstanding any private agreement to arbitrate. The trial court denied the defendant 

employer’s motion to compel arbitration. The California Supreme Court affirmed. The 

United States Supreme Court reversed. The court held that the “clear federal policy” in 

favor of arbitration “places [section] 2 of the Act in unmistakable conflict with 

California’s [section] 229 requirement that litigants be provided a judicial forum for 

resolving wage disputes. Therefore, under the Supremacy Clause, the state statute must 

give way.” (Perry, supra, 482 U.S. at p. 491.) California cases applying the FAA are in 

accord. (E.g., Baker, supra, 216 Cal.App.3d at pp. 1266-1267 [holding that Baker’s 

claim for overtime pay, even if based on a statutory right under former Labor Code 

section 510, was subject to arbitration because “[t]he [FAA] preempts our state law in 

this area.”].) 

Hoover does not advance Tawfik-Oshana’s position.3

 In Hoover, a sales agent for 

an insurance company sued her former employer for violations of the Labor Code. 

(Hoover, supra, 224 Cal.App.4th at pp. 1197, 1199-1200.) The trial court denied the 

employer’s motion to compel arbitration. (Id. at p. 1201.) The Court of Appeal affirmed, 

holding that the employer waived its right to seek arbitration. (Id. at p. 1198.) The court 

added that arbitration could not be compelled even in the absence of waiver because the 

employer had not shown that the contract at issue involved interstate commerce. (Id. at 

p. 1207.) The court noted that “Hoover was not an employee of a national stock 

brokerage firm or the employee of a member of a national stock exchange.” (Id. at 

 

3

 At oral argument, Tawfik-Oshana conceded that Hoover did not support her 

position, and she withdrew all arguments relying on that case. 
17 

p. 1208.) Thus, “the FAA did not apply [and] the exception favoring federal preemption 

and arbitration did not operate.” (Ibid.) 

Hoover is inapposite because the contracts at issue here involved interstate 

commerce. The trial court expressly so found when it ordered the parties to arbitration. 

Substantial evidence supported the trial court’s finding. Wells Fargo submitted evidence 

that it is a nationwide financial services organization providing a full range of investment 

and brokerage services, that it is regulated by SRO’s such as FINRA, and that “as a 

registered securities broker/dealer[, it] was at all relevant times . . . a member of the 

FINRA.” It submitted evidence that Tawfik-Oshana was at all relevant times during her 

employment a registered representative of FINRA and an associated person of Wells 

Fargo, a FINRA member firm. “It is well settled that disputes between a member of a 

national stock exchange and its employee are governed by the [FAA] where there is a 

binding arbitration agreement.” (Baker, supra, 216 Cal.App.3d at p. 1263.) “State and 

federal courts must enforce the [FAA] with respect to all arbitration agreements covered 

by that statute.” (Marmet Health Care Center, Inc. v. Brown (2012) ___ U.S. ___ [132 

S.Ct. 1201, 1202].) Tawfik-Oshana’s reliance on Hoover is misplaced. 

To the extent that Tawfik-Oshana contends that Armendariz prohibits arbitration 

of her Labor Code claims, we reject the contention. In Armendariz, the California 

Supreme Court addressed two different grounds for invalidating mandatory arbitration 

provisions in employment contracts, unlawfulness and unconscionability. (Armendariz, 

supra, 24 Cal.4th at p. 113.) Addressing lawfulness, the court held that antidiscrimination 

claims under California’s Fair Employment and Housing Act (Gov. Code, § 12900 et 

seq.) (FEHA) are arbitrable “if the arbitration permits an employee to vindicate his or her 

statutory rights.” (Armendariz, at p. 90.) “[F]or such vindication to occur, the arbitration 

must meet certain minimum requirements, including neutrality of the arbitrator, the 

provision of adequate discovery, a written decision that will permit a limited form of 

judicial review, and limitations on the costs of arbitration.” (Id. at pp. 90-91; Boghos v. 
18 

Certain Underwriters at Lloyd’s of London (2005) 36 Cal.4th 495, 505.) The Armendariz 

court held that arbitration provisions that do not satisfy the five minimum requirements 

are contrary to public policy and “grounds for invalidating or revoking an arbitration 

agreement and denying a petition to compel arbitration . . . .” (Armendariz, at p. 110.) 

But those minimum requirements have no application here. 

Armendariz’s prohibition against the arbitration of claims asserting unwaivable 

statutory rights arose in the context of “a mandatory employment arbitration 

agreement . . . which an employer imposes on a prospective or current employee as a 

condition of employment.” (Armendariz, supra, 24 Cal.4th at p. 90.) There is no 

employment agreement at issue here. Tawfik-Oshana does not challenge the “written 

employment offer” that she accepted on December 13, 2007, nor has she included a copy 

of that written offer in the record on appeal. The Form U4 is not an employment 

contract. (See Circuit City Stores, Inc. v. Adams (2001) 532 U.S. 105, 113, citing Gilmer 

v. Interstate/Johnson Lane Corp., supra, 500 U.S. 20, 25, fn. 2.) Nor was it imposed on 

Tawfik-Oshana by Wells Fargo. “The Form U4 is a contract between the regulatory 

organization . . . and the individual registrant. [Citation.]” (Valentine, supra, 174 

Cal.App.4th at p. 613.) To the extent it was “imposed” on Tawfik-Oshana, it was 

imposed by federal and state law, not by Wells Fargo. (17 C.F.R. § 240.15b7-1; 10 Cal. 

Code Regs., § 260.210.) 

The note that Tawfik-Oshana signed is not an employment contract either. It is 

prominently titled “PROMISSORY NOTE.” It contains all of the terms that one would 

expect to find in a promissory note given as security for a loan. Among other things, it 

states the principal amount of the loan and the interest rate, describes prepayment and 

lien terms, and specifies “events of default . . . .” The note does not include terms that 

one would expect to find in a written employment agreement. It says nothing about 

Tawfik-Oshana’s starting date or title. It does not describe her compensation or her 

entitlement to health care or other benefits. It refers to the $650,000 she received as a 
19 

“loan” rather than as a “sign-on bonus.” It says nothing about the possibility of an 

additional $350,000 bonus that Tawfik-Oshana claims she was promised. It does not 

state where her office would be located, although she claims she was promised 

assignment to “the high-volume, stable Westgate office in San Jose.” The note cannot 

reasonably be considered an employment contract. 

Even if it could be, nothing in the record suggests that it was a condition of 

Tawfik-Oshana’s employment. (Armendariz, supra, 24 Cal.4th at p. 90.) She declared 

that neither the regional sales manager who offered her the position “nor anyone at Wells 

Fargo ever suggested the document was negotiable” and that she “had no choice but to 

sign” all of the documents she was presented with on her first day since she had already 

quit her job at WAMU. But she did not declare that anyone told her that she had to sign 

the note as a condition of her employment or that it was not negotiable. Nor could she. 

The note expressly stated that “[t]he Undersigned has reviewed the terms of this Note and 

has participated in its drafting . . . .” Armendariz’s minimum requirements were never 

triggered here because neither of the arbitration provisions that Tawfik-Oshana 

challenges was contained in a mandatory employment arbitration agreement that Wells 

Fargo imposed on her as a condition of her employment. Her reliance on Armendariz is 

misplaced. 

F. Business and Professions Code Claim 

Tawfik-Oshana contends that the trial court erred in compelling arbitration of her 

Business and Professions Code claim. Relying on Broughton v. CIGNA Healthplans of 

California (1999) 21 Cal.4th 1066 (Broughton) and Brown v. Ralph’s Grocery Co.

(2011) 197 Cal.App.4th 489 (Brown), she argues that the claim is not arbitrable because 

she is “seeking to act as a private attorney general to enjoin future unlawful practices on 

behalf of the general public.” We reject the argument. 
20 

In Broughton, the California Supreme Court held that claims under the Consumers 

Legal Remedies Act (CLRA) for injunctive relief to protect the public from deceptive 

business practices are nonarbitrable. (Broughton, supra, 21 Cal.4th at pp. 1082-1084.) 

CLRA claims seeking damages are “fully arbitrable and should be severed from an 

injunctive relief action when . . . a plaintiff requests both types of relief.” (Broughton, at 

p. 1072.) The court later extended Broughton to prohibit arbitration of consumer claims 

to enjoin unfair competition and deceptive advertising under the Unfair Competition Law 

(Bus. & Prof. Code, § 17200 et seq. (UCL)) where the injunctive relief is sought to 

prevent further harm to the public at large rather than simply to redress or prevent injury 

to a plaintiff. (Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal.4th 303, 307, 315-

316, 317-320 (Cruz).) 

In Brown, the Court of Appeal held that a waiver in an arbitration agreement of an 

employee’s right to pursue a representative action under the Labor Code Private 

Attorneys General Act of 2004 (PAGA)4

 was unenforceable under California law. 

(Brown, supra, 197 Cal.App.4th at p. 494.) Relying in part on Broughton and Cruz, the 

Brown court concluded that the FAA did not preempt state law holding such waivers 

unenforceable because the law did not conflict with the purposes of the FAA. (Brown, at 

pp. 494, 501-502.) Several years later, the California Supreme Court held in Iskanian v. 

CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian) that “an 

arbitration agreement requiring an employee as a condition of employment to give up the 

right to bring representative PAGA actions in any forum is contrary to public policy” and 

that the FAA does not preempt that state court rule. (Iskanian, at pp. 360, 384.) 

 

4

 PAGA “authorizes an employee to bring an action for civil penalties on behalf of 

the state against his or her employer for Labor Code violations committed against the 

employee and fellow employees, with most of the penalties going to the state.” 

(Iskanian, supra, 59 Cal.4th at pp. 360, 378-382; Lab. Code, §§ 2698-2699.5.) 
21 

None of these cases help Tawfik-Oshana. Unlike Broughton and Cruz, her case 

was not a consumer case. Unlike in Brown, her complaint did not invoke PAGA, seek 

civil penalties, or allege compliance with the administrative prerequisites to pursuing a 

PAGA action. (Lab. Code, § 2699.3, subd. (a); see Arias v. Superior Court (2009) 46 

Cal.4th 969, 981 [“Before bringing a civil action for statutory penalties, an employee 

must comply with Labor Code section 2699.3.”].) There is no evidence in the record that 

she satisfied those prerequisites. 

Unlike in the above cases, Tawfik-Oshana’s complaint contained no hint that she 

was asserting a representative claim or seeking to act as a private attorney general. 

(Compare Cruz, supra, 30 Cal.4th at pp. 308-309, 315.) Her complaint did not mention 

other aggrieved persons or suggest in any way that she sought relief on behalf of anyone 

but herself. She alleged that Wells Fargo “failed to pay Plaintiff wages, used the illusory 

promise of a sign-on bonus, then attempted to recoup that bonus as a ‘loan’ in violation 

of the Labor Code.” Her complaint did not mention PAGA. Instead, it invoked the 

“California Unfair Trade Practices Act (a.k.a. ‘UCL,’ Unfair Competition Laws, 

California Bus. & Prof. Code Sec. 17200 et seq.)” She asserted that Wells Fargo’s 

alleged violations of the Labor Code constituted unfair competition and unfair business 

practices under the UCL. It was not until Wells Fargo petitioned to compel arbitration 

that Tawfik-Oshana argued in her opposition brief that she was seeking an injunction 

under the UCL “on behalf of herself and the citizens of California to enjoin defendant’s 

violations of California’s employment laws and regulations.” On this record, the trial 

court properly rejected that argument. The trial court did not err in compelling arbitration 

of Tawfik-Oshana’s individual Business and Professions Code claim. (See Cruz, supra, 

30 Cal.4th at pp. 317-320 [reiterating arbitrability of UCL claims for restitution or 

disgorgement].) 
22 

G. Unconscionability

Tawfik-Oshana contends that the trial court erred in denying her motion to vacate 

and in confirming the arbitration award because the arbitration agreements that she 

signed were procedurally and substantively unconscionable. We disagree. 

“ ‘[U]nconscionability has both a “procedural” and a “substantive” element,’ the 

former focusing on ‘ “oppression” ’ or ‘ “surprise” ’ due to unequal bargaining power, the 

latter on ‘ “overly harsh” ’ or ‘ “one-sided” ’ results. [Citation.] ‘The prevailing view is 

that [procedural and substantive unconscionability] must both be present in order for a 

court to exercise its discretion to refuse to enforce a contract or clause under the doctrine 

of unconscionability.’ [Citation.] But they need not be present in the same degree. 

‘Essentially a sliding scale is invoked . . . .’ In other words, 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.” 

(Armendariz, supra, 24 Cal.4th at p. 114.) 

Tawfik-Oshana argues that the Form U4 arbitration agreement was procedurally 

unconscionable because it was a contract of adhesion imposed on her with no opportunity 

for negotiation. We reject the argument. 

A contract of adhesion is “ ‘a standardized contract, which, imposed and drafted by 

the party of superior bargaining strength, relegates to the subscribing party only the 

opportunity to adhere to the contract or reject it.” (Armendariz, supra, 24 Cal.4th at 

p. 113.) The Form U4 arbitration agreement does not fit that definition. The Form U4 

was a contract between Tawfik-Oshana and FINRA, not between her and Wells Fargo. 

(Valentine, supra, 174 Cal.App.4th at 613.) It was not drafted by Wells Fargo. (See 

Desiderio v. National Assn. of Securities Dealers, Inc. (2nd Cir. 1999) 191 F.3d 198, 207 

[“the arbitration clause in Form U-4 was drafted by the NASD in cooperation with other 

self-regulatory organizations” and approved by the SEC].) To the extent it was 

“imposed” on Tawfik-Oshana, it was imposed by law, not by Wells Fargo. (17 C.F.R. 
23 

§ 240.15b7-1; 10 Cal. Code Regs., § 260.210.) Wells Fargo had no choice in the matter. 

Federal law prohibits it from engaging in securities transactions unless all natural persons 

“associated with” it who effect or are involved with effecting such transactions are 

registered or approved according to certain standards, “including . . . submitting and 

maintaining all required forms . . . .” (17 C.F.R. § 240.15b7-1.) California law similarly 

requires that “[u]pon employment of an individual as an agent,” registered broker-dealers 

like Wells Fargo must obtain and file “a properly executed application for registration, on 

the [Form U4] . . . .” (10 Cal. Code Regs., § 260.210, subds. (a), (b).) The Form U4 that 

Tawfik-Oshana signed was not a contract of adhesion. 

Even if we assume that it was, it did not render the arbitration provision 

procedurally unconscionable. Procedural unconscionability “focus[es] on ‘ “oppression” ’ 

or ‘ “surprise” ’ due to unequal bargaining power.” (Armendariz, supra, 24 Cal.4th at 

p. 114.) Wells Fargo did not wield superior bargaining strength in obtaining the Form U4 

from Tawfik-Oshana. The law required it to obtain and Tawfik-Oshana to provide her 

signature on the form. The form cannot have come as a surprise to Tawfik-Oshana. She 

had worked in the securities industry since at least 1993 and was merely transferring her 

registration to her latest employer. Nor can she claim to have been surprised by the 

arbitration provision. By signing the form, she expressly acknowledged “that I have read 

and understand the items and instructions on this form . . . .” We conclude that the Form 

U4 arbitration provision was not procedurally unconscionable. 

Because procedural and substantive unconscionability must both be present before 

a court will refuse to enforce a contract or clause under the doctrine of unconscionability, 

our conclusion that the Form U4 arbitration agreement was not procedurally 

unconscionable makes it unnecessary for us to address Tawfik-Oshana’s contention that 

it was also substantively unconscionable. (Crippen v. Central Valley RV Outlet (2004) 

124 Cal.App.4th 1159, 1167.) We conclude that unconscionability did not render the 

Form U4 arbitration provision unenforceable. 
24 

We have rejected Tawfik-Oshana’s other challenges to the Form U4 arbitration 

provision. Thus, the trial court did not err in compelling arbitration of Tawfik-Oshana’s 

claims under that provision.5

 Tawfik-Oshana did not establish that the arbitrator 

committed misconduct or exceeded his powers by deciding issues that were properly 

before him. It follows that the trial court did not err in confirming the arbitrator’s award 

after Tawfik-Oshana failed to establish a statutory ground for vacating it. (§ 1287.4.) 

III. Disposition 

The judgment is affirmed.

 

5

 This conclusion makes it unnecessary for us to address Tawfik-Oshana’s 

contention that the arbitration provision in the promissory note was unenforceable. She 

does not dispute that both arbitration provisions separately covered the claims she asserts. 

She raises the same challenges to both arbitration provisions. We have rejected those 

challenges with respect to the Form U4 provision. Even if the arbitration provision in the 

note was unconscionable or otherwise unenforceable, Tawfik-Oshana was required to 

arbitrate her claims under the Form U4 arbitration provision. 
25 

 ___________________________ 

 Mihara, J. 

WE CONCUR: 

_____________________________ 

Premo, Acting P. J. 

_____________________________ 

Elia, J.