Filed 8/18/16 Tran v. Integra LifeSciences Corp. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

SANDRA TRAN,

 Plaintiff and Respondent,

v.

INTEGRA LIFESCIENCES 

CORPORATION, et al., 

 Defendants and Appellants.

 G051620

 (Super. Ct. No. 30-2014-00709423)

 O P I N I O N

Appeal from an order of the Superior Court of Orange County, Andrew P. 

Banks, Judge. Affirmed. Request for judicial notice granted.

Ogletree, Deakins, Nash, Smoak & Stewart, Vince M. Verde, Jordan R. 

Ferguson and Rafael G. Nendel-Flores, for Defendants and Appellants.

JML Law, Joseph M. Lovretovich, D. Aaron Brock, Christopher P. 

Brandes, Andrew S. Pletcher and Jennifer A. Lipski, for Plaintiff and Respondent. 
2

Defendants Integra LifeSciences Corporation (Integra) and its subsidiaries, 

IsoTis OrthoBiologics, Inc., and IsoTis, Inc., appeal from an order denying their motion 

to compel arbitration of Sandra Tran’s complaint alleging employment discrimination 

and wrongful termination.

1

Defendants argue the operative arbitration provision was 

agreed to by Tran when she first applied for employment with them, and that the trial 

court erred by concluding (1) that provision was superseded by a different arbitration 

provision Tran signed a few months later, and (2) the latter provision was unenforceable 

on the grounds of unconscionability. We affirm.

Defendants’ assertion that the first arbitration provision could only be 

superseded by a writing signed by the company president is unpersuasive because the 

restrictive language they rely on applies solely to a different provision within the same 

agreement. And we find no error in the trial court’s determination that the subsequent 

arbitration provision is unconscionable. Tran was required to sign that later provision

after she was already employed, with no opportunity to negotiate, and it is substantively 

unconscionable in multiple respects. The trial court did not abuse its discretion by 

refusing to substantially revise the provision to make it more fair. 

Finally, we reject defendants’ contention that the unenforceability of the 

later arbitration provision necessarily revived the earlier provision, which the trial court 

was obligated to enforce. The contention ignores (1) the existence of an intervening 

integrated agreement between Tran and her employer which had no arbitration provision, 

and (2) the fact the original agreement fails to specifically identify—let alone explicitly

bind—any party other than Tran. 

 

1

 Defendants have requested us to take judicial notice of documents reflecting that 

as of July 2015, Integra “completed a spin-off of its orthobiologics and spinal fusion 

hardware business” and the new entity, SeaSpine Holdings Corporation, now “serves as 

the ultimate parent company of the IsoTis Companies.” Defendants explain this is 

relevant to establish that SeaSpine is “an interested non-party in this matter.” The request 

is granted. 
3

FACTS

Tran sued Integra in March 2014, and while the complaint is not included 

in our record, both sides describe it as alleging various causes of action arising out of

employment discrimination in violation of Government Code section 12940, including 

gender and disability discrimination, failure to accommodate, harassment, and wrongful 

termination. 

In July 2014, defendants filed their motion to compel arbitration of the 

complaint, in accordance with the arbitration provision contained in an “Applicants 

Statement [and] Agreement” (Applicants Agreement) they contended Tran had signed 

when applying for a job with IsoTis OrthoBiologics, Inc. in 2006. (Boldface omitted.) 

The Applicants Agreement is a densely packed, single page document 

which begins with the sentence “In the event of my employment to a position in the 

Company, I will comply with all rules and regulations of the Company.” It then sets 

forth various requirements and policies of “the Company,”—which are never identified—

including that “the Company promotes a voluntary system of alternative dispute 

resolution, which involves binding arbitration to resolve all disputes which may arise out 

of the employment context.” The Applicants Agreement then recites that “I voluntarily 

agree that any claim, dispute, and/or controversy . . . 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 . . . shall be submitted to and determined 

exclusively by binding arbitration under the Federal Arbitration Act, in conformity with 

the procedures of the California Arbitration Act (Cal. Code Civ. Proc. Sec 1280 et seq., 
4

including section 1283.05 and all of the Act’s other mandatory and permissive rights to 

discovery).” The Applicants Agreement is not signed by any party other than Tran.

Tran opposed the motion to compel arbitration, and in support of her 

opposition, she declared she had signed no agreements with defendants in 2006—

although she did not deny signing the Applicants Agreement at some point. Instead, she 

stated that she “recall[ed] submitting my resume and/or a job application to Defendants in 

May or June of 2008”—without specifying what form that job application may have 

taken—and that she received an offer letter from IsoTis OrthoBiologics, Inc. in July 

2008. That letter, which contained no arbitration provision, stated it “sets forth the entire 

agreement between you and IsoTis. Once signed by you, it will become legally binding 

and will supersede all prior discussions, promises, and negotiations.” Tran signed that 

letter, acknowledging her agreement with its terms. 

Tran declared that after she commenced employment, as part of the 

orientation process, she was given a “stack of new-hire employment paperwork,” and 

lacking the time to fully review them all, and given no opportunity to take them home, 

she signed the documents where indicated. Although Tran did not remember any 

arbitration provisions contained within that stack of paperwork, she acknowledged the 

stack could have included a copy of the Applicants Agreement. 

Tran also stated that in October 2008, “[s]everal months into [her] 

employment,” she was asked to sign a document entitled “Confidentiality and Invention 

Disclosure Agreement” (Invention Agreement), which was described to her as an 

“industry standard agreement” providing that Integra would own any invention or 

discovery made by her during her employment. She stated she was not allowed sufficient 

time to review the Invention Agreement before signing it, was not given the opportunity 

to take it home, and was provided with a copy only after she signed it. 

The Invention Agreement states it is entered into “In consideration of 

[Tran’s] desire to obtain employment with Integra LifeSciences Corporation, any of its 
5

subsidiaries, or any of their respective successors or assigns”—the group of which is then 

collectively identified as “‘Company’”—and “Company’s desire to secure [Tran’s] 

services.” It includes only two substantive provisions: section 1 prohibits Tran from 

disclosing or using the company’s proprietary information, and section 2 gives the 

company ownership of any inventions or intellectual property she might develop during 

the period of her employment. Section 3 of the Invention Agreement is an arbitration 

provision which provides, in pertinent part that “[e]xcept as set forth in the last two 

sentences of this paragraph, I agree that any dispute or controversy arising out of my 

employment or this agreement, or relating to any interpretation, construction, 

performance or breach of this Agreement, shall be settled by an expedited arbitration to 

be held in Middlesex County, New Jersey, in accordance with the National Rules of the 

American Arbitration Association (then in effect) governing employment disputes, 

subject to the provisions of this Paragraph 3. The arbitration proceeding and all filing, 

testimony, documents and information relating to or presented during the arbitration 

proceeding shall be disclosed exclusively for the purpose of facilitating the arbitration 

process and for no other purpose and shall be deemed to be information subject to the 

confidentiality provisions of this Agreement. The arbitrator may grant injunctions or 

other relief in such dispute or controversy. . . . I agree that it would be impossible or 

inadequate to fully measure or calculate the Company’s damages from any breach of the 

covenants set forth in Sections 1 and 2 of this Agreement. Accordingly, I agree that if I 

breach any of these covenants, the Company will have available, in addition to any other 

right or remedy available, the right to obtain an injunction from a court of competent 

jurisdiction restraining such breach or threatened breach and to specific performance of 

any such provision of this Agreement.” (Italics added.)

The Invention Agreement also contains several “General Provisions,”

specifying, among other things that it is governed by New Jersey law and the parties 

consent to personal jurisdiction in any court in the state of New Jersey. It also specifies 
6

that Tran’s “obligations under this Agreement shall survive the termination of [her] 

employment . . . and shall be binding upon [her] heirs, executors, administrators and legal 

representatives.” It contains no reciprocal provision applicable to the company. To the 

contrary, it contains an additional provision reiterating that while “[t]his Agreement will 

be binding upon my heirs, executors, administrators and other legal representatives,” it 

“will be for the benefit of the Company, its successors, and its assigns.” (Italics added.)

Finally, the Invention Agreement reserves to the company “the right, in its 

sole discretion, to waive any term or provision of this agreement in such circumstances as 

the Company deems appropriate.” 

Tran’s opposition to the motion to compel was grounded on two 

contentions: first, that the operative arbitration provision was the one in the Invention 

Agreement, rather than the one in the Applicants Agreement; and second, that the 

provision in the Invention Agreement was unconscionable. The latter contention relied 

on several aspects of the provision, including that it was unilateral—effectively binding 

only Tran—that it incorporated an overly-broad confidentiality provision that would 

hamper Tran’s ability to prove any claims, and that it required Tran to arbitrate any 

claims in New Jersey, in accordance with New Jersey law, and to submit to the 

jurisdiction of the New Jersey courts. Tran also argued the arbitration provision in the 

Applicants Agreement, even if operative, was unenforceable, since the only other party to 

that agreement is an unidentified “Company,” the provision’s language binds only Tran 

and not the company, and no representative of that company had signed the agreement. 

In reply, defendants responded to Tran’s contention she had not signed the 

Applicants Agreement, or any other agreement with defendants, in 2006, by explaining 

that the Applicants Agreement had been a standard part of IsoTis OrthoBiologic’s, Inc.

employment application process when Tran applied for employment in 2008. The 

executed Applicants Agreement, along with a completed employment application form, 

were included in Tran’s personnel file. And although both documents bore a typewritten 
7

date of 2006, defendants surmised that both had actually been submitted by Tran when 

she applied for employment in 2008, but had been erroneously dated with the year 2006. 

Defendants also argued the surrounding circumstances make clear the identity of the 

“Company” in the Applicants Agreement, that the arbitration provision in the Applicants 

Agreement was not superseded by the provision in the Invention Agreement, that the 

arbitration provision in the Invention Agreement is not unconscionable, and that if the 

trial court found the Invention Agreement provision to be unenforceable, that finding

would necessarily revive the earlier arbitration provision in the Applicants Agreement. 

The trial court denied the motion to compel, explaining the later arbitration 

provision in the Invention Agreement was the controlling one, and finding that provision 

to be both procedurally and substantively unconscionable. With respect to the latter

point, the court stated there were several substantively unconscionable aspects to the 

provision, including the requirement that Tran, who both resided and worked in Southern 

California, must nonetheless arbitrate her claims in New Jersey and submit to the 

jurisdiction of the New Jersey courts. The court also rejected defendants’ request that it 

sever the unconscionable parts of the provision and enforce the provision without them. 

The court noted there were too many troublesome aspects of the provision and that 

excising all of them would require the court to “reform the agreement and provisions for 

arbitration.” 

DISCUSSION

1. Controlling Law and Applicable Standards of Review

Although defendants argue that the Federal Arbitration Act (FAA) (9 

U.S.C. §§ 1-16) rather than California law, governs this motion, the point is immaterial. 

Code of Civil Procedure section 1281.2 governs motions to compel arbitration brought in 

California courts, without regard to whether California law or the FAA otherwise applies 

to the proposed arbitration. (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 

Cal.4th 394, 410 [“Because the California procedure for deciding motions to compel 
8

serves to further, rather than defeat, full and uniform effectuation of the federal law’s 

objectives, the California law, rather than section 4 of the [FAA], is to be followed in 

California courts”].) Moreover, because the defense of unconscionability is generally 

applicable to contracts under California law, it remains an available defense to a petition 

to compel arbitration, even under the FAA. (Gutierrez v. Autowest, Inc. (2003) 114 

Cal.App.4th 77; see Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1142 

[“We begin by noting that . . . unconscionability remains a valid defense to a petition to 

compel arbitration”].)

The standards we apply in this appeal are well-settled. As a general matter, 

“[a] judgment or order of a lower court is presumed to be correct on appeal, and all 

intendments and presumptions are indulged in favor of its correctness.” (In re Marriage 

of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Moreover, “[t]he doctrine of implied 

findings requires the appellate court to infer the trial court made all factual findings 

necessary to support the judgment.” (Fladeboe v. American Isuzu Motors Inc. 150 

Cal.App.4th 42, 58.) Thus the burden is on defendants to affirmatively show error, even 

on issues where Tran had the burden of proof below. (Frank and Freedus v. Allstate Ins.

Co. (1996) 45 Cal.App.4th 461, 474.)

“On appeal from the denial of a motion to compel arbitration, 

‘[u]nconscionability findings are reviewed de novo if they are based on declarations that 

raise “no meaningful factual disputes.” [Citation.] However, where an unconscionability 

determination “is based upon the trial court’s resolution of conflicts in the evidence, or on 

the factual inferences which may be drawn therefrom, we consider the evidence in the 

light most favorable to the court’s determination and review those aspects of the 

determination for substantial evidence.” [Citation.] The ruling on severance is reviewed 

for abuse of discretion.’” (Samaniego v. Empire Today, LLC (2012) 205 Cal.App.4th 

1138, 1144.)
9

And to the extent defendants’ contentions turn on contractual interpretation, 

those contentions are subject to de novo review. (Morgan v. City of Los Angeles Bd. of 

Pension Comrs. (2000) 85 Cal.App.4th 836, 843 [The “interpretation of a contract is 

subject to de novo review where the interpretation does not turn on the credibility of 

extrinsic evidence”].) 

2. Operative Arbitration Provision

Defendants claim the court erred in concluding that the arbitration 

provision in the Invention Agreement, rather than the one contained in the Applicants 

Agreement, is the operative provision. Their argument is twofold. First they contend the 

Applicants Agreement could not have been superseded by the Invention Agreement 

because the Applicants Agreement specifies it cannot be contradicted except by a writing 

signed by the company’s president—and the Invention Agreement was not such a 

writing. And second, defendants claim the arbitration provision in the Invention 

Agreement was not intended to supersede the earlier provision, but instead applies only to 

alleged breaches of the confidentiality and invention ownership provisions contained in 

that agreement. Both of these claims raise issues of contractual interpretation, subject to 

de novo review. Neither claim is persuasive.

Although defendants are correct that the Applicants Agreement includes 

language specifying that no agreements “contrary to the express language of the 

agreement are valid unless they are in writing and signed by the President of the 

Company,” they ignore the placement of that language within the document. The

language defendants rely upon is not found in a general provision which would 

presumably govern the entire document. Instead, it is contained within a single 

paragraph at the end of the document, which is phrased as a distinct

“agreement . . . regarding the rights of the Company or employee to terminate 

employment with or without good cause.” (Italics added.)
10

That paragraph is effectively a stand-alone agreement governing one issue: 

the at-will nature of the anticipated employment relationship—complete with its own 

integration clause. In its entirety, the paragraph states: “If hired, I agree as follows: My 

employment and compensation is terminable at-will, is for no definite period, and my 

employment and compensation may be terminated by the Company (employer) at any 

time for any reason whatsoever, with or without good cause at the option of either the 

Company or myself. No implied, oral, or written agreements contrary to the express 

language of the 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 

majority 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 and the

employee to terminate employment with or without good cause, and this agreement takes 

the place of all-prior and contemporaneous agreements, representations, and 

understanding of the employee and the Company.” (Italics added.) 

The paragraph specifies, both at its beginning and its end, that its subject 

matter is the at-will nature of the contemplated employment relationship. It never 

references anything outside its confines, and its language makes clear its sole purpose is 

to establish the at-will status of any employment relationship that might be created 

between Tran and the company, and to preclude any claim by Tran that the relationship 

either had been, or later became, anything other than at will.

Defendants rely on Rebolledo v. Tilly’s, Inc. (2014) 228 Cal.App.4th 900, 

as an example of a similar contractual provision which was found by this court to 

preclude amendment of the agreement’s arbitration agreement absent the required 

signatures. However, that provision is distinguishable because its requirement of specific 

signatures for modification was not limited to the at-will status of the employment 
11

relationship. It stated: “‘Employee’s [a]t-[w]ill status is the entire agreement between 

Employee and [Employer]. It supersedes all prior agreements, understandings and 

representations concerning Employee’s employment with [Employer]. Only the 

President, Senior Vice President and Director of Human Resources, acting together, may 

enter into a different employment agreement or modify [Employer’s] employment 

policies.’” (Id. at p. 923, italics partially omitted.) This court relied explicitly on that 

italicized language in rejecting the employer’s claim that the modification restriction 

applied only to the employee’s at-will status. We noted “[t]he agreement plainly requires 

signatures to change the employee’s status or ‘modify . . . employment policies.’ . . . If 

Employer intended to require signatures only to change an employee’s status, there 

would be no need to include the phrase ‘or modify . . . employment policies.’ The 

signature requirement is broadly written to encompass much more than a status change.” 

(Ibid.)

In this case, by contrast, the language in the Applicants Agreement 

restricting the creation of any agreement contradicting “the express language of the 

agreement” does not refer to anything other than the specific agreement that Tran would 

be an at-will employee. And because that language is found only within this distinct 

“agreement . . . regarding the rights of the Company . . . to terminate employment with or 

without good cause,” we conclude it imposed no restriction on alteration of the arbitration 

provision also included in the Applicants Agreement. 

Defendants’ second claim relies on the language of the Invention 

Agreement. They argue its integration clause reflects it was not intended to supersede the 

Applicants Agreement, and its arbitration provision is narrowly drawn to apply only to 

claims alleging breaches of its substantive provisions. Specifically, defendants assert that 

while the Invention Agreement’s integration clause states it “‘sets forth the entire 

agreement and understanding between the Company and [Tran] relating to the subject 

matter herein,’” that clause is not intended to actually supersede prior agreements
12

because it states only that it merges prior discussions and “does not provide that any prior 

agreements are superseded.” The contention borders on the frivolous. There is no 

requirement that the words “supersede” and “agreements” be actually used for an 

integration clause to have that effect. As cogently pointed out in Grey v. American 

Management Services (2012) 204 Cal.App.4th 803, 807, “[b]ecause the contract says it is 

the entire agreement, common sense dictates that it supersedes other prior agreements.”

We agree.

And defendants’ claim that the arbitration provision in the Invention 

Agreement was intended to apply only to alleged breaches of the confidentiality and 

invention ownership provisions of that document, and not to other claims, fares no better.

The trial court explicitly rejected this assertion on the basis that defendants were 

“judicially estopped from making that argument because [they] took the position in 

[another case] that it was an all-inclusive arbitration agreement.” Defendants do not 

acknowledge that finding in their opening brief, let alone explain why it might have been 

erroneous. They have consequently waived any challenge to it.

2

 “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.” (Badie v. Bank of America (1998) 67 

Cal.App.4th 779, 784-785.) In any event, defendants’ claim is contrary to the clear 

language of the provision itself, which states it applies to “any dispute or controversy 

arising out of [Tran’s] employment or this agreement.” We consequently reject this 

claim as well. 

 

2

 Defendants do address this issue in their reply brief. However, “[p]oints raised 

for the first time in a reply brief will ordinarily not be considered, because such 

consideration would deprive the respondent of an opportunity to counter the argument.” 

(American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.) “Obvious 

reasons of fairness militate against consideration of an issue raised initially in the reply 

brief of an appellant.” (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 

11.)
13

3. Unconscionability of Arbitration Provision in Invention Agreement

Defendants next argue the trial court erred in concluding the arbitration 

provision in the Invention Agreement was unconscionable and refusing to enforce it. 

Again, we cannot agree. 

“[T]he core concern of the unconscionability doctrine is the ‘“‘absence of 

meaningful choice on the part of one of the parties together with contract terms which are 

unreasonably favorable to the other party.’”’” (Sonic-Calabasas A, Inc. v. Moreno, 

supra, 57 Cal.4th at p. 1145.) In other words, unconscionability “‘has both a 

“procedural” and a “substantive” element.’ . . . [and] ‘both the procedural and substantive 

elements must be met before a contract or term will be deemed unconscionable. Both, 

however, need not be present to the same degree. A sliding scale is applied so that “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.”’” (Lhotka v. Geographic Expeditions, Inc. (2010) 181 Cal.App.4th 816, 

821.)

The first element, procedural unconscionability, “generally takes the form 

of a contract of adhesion, ‘“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.”’” (Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1071.) 

The evidence before the trial court easily supported such a finding in this case. Tran’s 

declaration stated that she was given the Invention Agreement in final form, and was 

asked to sign it as is, without even having sufficient time to review it. Defendants do not 

dispute those contentions, nor do they suggest Tran would have been permitted to 

negotiate the terms of the arbitration provision had she asked to do so. 

What defendants argue instead is that the court erroneously characterized 

the Invention Agreement as a “‘pre-employment’” agreement, when in fact Tran admitted 

she had signed it several months after her employment commenced. However, it is not 
14

clear why defendants believe that distinction helps them. It certainly does nothing to 

dispel the adhesive nature of the interaction. To the contrary, “[i]t is well settled that 

adhesion contracts in the employment context, that is, those contracts offered to 

employees on a take-it-or-leave-it basis, typically contain some aspects of procedural 

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

Cal.App.4th 695, 704.) We find no error in the trial court’s finding of procedural 

unconscionability. 

The second element, substantive unconsionability, “pertains to the fairness 

of an agreement’s actual terms and to assessments of whether they are overly harsh or 

one-sided. [Citations.] A contract term is not substantively unconscionable when it 

merely gives one side a greater benefit; rather, the term must be ‘so one-sided as to 

“shock the conscience.”’” (Pinnacle Museum Tower Assn. v. Pinnacle Market 

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

Tran argued the arbitration provision in the Invention Agreement was 

substantively unconscionable on several grounds, including (1) it required arbitration in 

New Jersey, despite the fact Tran both resided and was employed in California, and (2) it 

was effectively unilateral, requiring Tran to arbitrate her claims, but not requiring 

defendants to arbitrate theirs. The trial court agreed, and so do we.

Defendants contend the inclusion of what is effectively a forum selection 

clause for the required arbitration could not be considered unconscionable because such 

clauses are routinely inserted in agreements, are considered prima facie valid, and are not 

unreasonable. That is not entirely accurate. Instead, as explained by our Supreme Court, 

the propriety of a forum selection clause is evaluated by applying essentially the same 

analysis employed to determine unconscionability; i.e. was the agreement freely 

negotiated and was the result of that negotiation fair: “No satisfying reason of public 

policy has been suggested why enforcement should be denied a forum selection clause 

appearing in a contract entered into freely and voluntarily by parties who have 
15

negotiated at arm’s length. For the foregoing reasons, we conclude that forum selection 

clauses are valid and may be given effect, in the court’s discretion and in the absence of a 

showing the enforcement of such a clause would be unreasonable.” (Smith, Valentino & 

Smith, Inc. v. Superior Court (1976) 17 Cal.3d 491, 495-496, italics added; see America 

Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1, 11-12 [“California favors 

contractual forum selection clauses so long as they are entered into freely and voluntarily, 

and their enforcement would not be unreasonable”].) 

Here, as we have already noted, the arbitration provision in the Invention 

Agreement was not freely negotiated at arm’s length. Instead, it was unilaterally imposed 

on Tran by her employer. And while the state of New Jersey—the home state of 

Integra—might not have been a wholly arbitrary choice of forum, that does not make it 

an automatically reasonable location for the adjudication of Tran’s employment claims. 

This is especially true because Tran’s actual employer when she signed the agreement 

was Integra’s subsidiary, IsoTis OrthoBiologics, Inc., not Integra itself, and IsoTis 

OrthoBiologics, Inc. was apparently headquartered in Irvine, California.

3

 Moreover, 

Tran’s workplace was in California, and thus presumably the great majority of witnesses 

and other evidence relevant to her claims of workplace discrimination and harassment, 

were also in California. 

In challenging the trial court’s ruling, defendants make no effort to explain 

why New Jersey would be a reasonable location to arbitrate Tran’s employment claims. 

Instead, they argue that Tran failed to offer the court admissible evidence demonstrating 

that arbitrating in New Jersey would be a hardship for her. We disagree. The trial court 

was free to infer that conclusion from the undisputed facts that Tran lived and worked in 

California, the alleged events giving rise to her complaint occurred in California, and 

 

3

 According to the offer letter Tran signed IsoTis OrthoBiologics, Inc., was 

“based in Irvine, California.” 
16

most, if not all, of the witnesses and evidence she would need to prove her case were in 

California.

The second unconscionable aspect of the Invention Agreement’s arbitration 

provision is that it is effectively unilateral. As explained in Armendariz v. Foundation 

Health Psychcare, Inc. (2000) 24 Cal.4th 83 at page 117, “it is unfairly one-sided for an 

employer with superior bargaining power to impose arbitration on the employee as 

plaintiff but not to accept such limitations when it seeks to prosecute a claim against the 

employee.” Moreover, “[i]f the arbitration system established by the employer is indeed 

fair, then the employer as well as the employee should be willing to submit claims to 

arbitration. Without reasonable justification for this lack of mutuality, arbitration appears 

less as a forum for neutral dispute resolution and more as a means of maximizing 

employer advantage.” (Id. at p. 118.)

In this case, the unilateral effect of the arbitration provision is manifested in 

several ways. First, the provision is phrased in the first person singular: It repeatedly 

states “I agree” rather than “Tran and the Company agree” to its requirements. As Tran 

points out, such language is a hallmark of unilateral arbitration provisions. (See Higgins 

v. Superior Court (2006) 140 Cal.App.4th 1238, 1253-1254 [noting that a clause stating 

that “‘all disputes’” are subject to arbitration is not bilateral if “only one side (petitioners) 

agreed to that clause”].) 

Further, while the arbitration provision in the Invention Agreement requires 

Tran to arbitrate any claims arising out of her employment or the Invention Agreement, it 

expressly allows defendants to file suit in court if they allege Tran violated either the 

confidentiality provision or the invention ownership provisions of the agreement. While 

that carve-out does not technically exempt defendants entirely from the requirement to 

arbitrate their claims against Tran, it is difficult to conceive of what other claims they 

might ever have alleged against her. In Mercuro v. Superior Court (2002) 96 

Cal.App.4th 167, the court rejected a similar provision as unduly one-sided, noting that 
17

an arbitration agreement which “specifically excludes ‘claims for injunctive and/or other 

equitable relief for intellectual property violations, unfair competition and/or the use 

and/or unauthorized disclosure of trade secrets or confidential 

information. . . .’ . . . exempts from arbitration the claims [employer] is most likely to 

bring against its employees.” (Id. at p. 176.) The same is true here.

Of course, as noted in Armendariz, if an employer has “reasonable 

justification for the arrangement—i.e., a justification grounded in something other than 

the employer’s desire to maximize its advantage based on the perceived superiority of the 

judicial forum—such an agreement would not be unconscionable.” (Armendariz, supra, 

24 Cal.4th at p. 120.) In this case, it appears defendants attempted to justify their 

exemption from arbitration by having Tran agree that “it would be impossible or 

inadequate to fully measure and calculate the Company’s damages from [her] breach of 

the [confidentiality and invention ownership provisions] of this Agreement,” and thus in 

the event of her breach of either of those obligations, the company would be allowed “in 

addition to any other right or remedy available” to pursue claims for injunction or 

specific performance in court. That justification fails, however, because the arbitration 

provision itself specifically empowers the arbitrator to “grant injunctions or other relief”

in any controversy. 

In any event, the troubling unilateral character of this arbitration provision 

is also exacerbated by other provisions in the Invention Agreement. As we have already 

noted, it also specifies that Tran’s “obligations under this Agreement shall survive the 

termination of [her] employment . . . and shall be binding on [her] heirs, executors, 

administrators and legal representatives,” but it contains no reciprocal provision 

applicable to the company. To the contrary, in a separate provision, it reiterates that 

while “[t]his Agreement will be binding upon my heirs, executors, administrators and 

other legal representatives,” it “will be for the benefit of the Company, its successors, and 

its assigns.” (Italics added.)
18

Most significantly, however, the Invention Agreement specifically reserves 

to the company “the right, in its sole discretion, to waive any term or provision of this 

agreement in such circumstances as the Company deems appropriate.” (Italics added.)

Such an unfettered unilateral right would essentially defeat the supposed bilateral nature 

of the arbitration provision contained therein, even in the absence of the other language 

already accomplishing that result. (See Asmus v. Pacific Bell (2000) 23 Cal.4th 1, 15 

[“[W]hen a party to a contract retains the unfettered right to terminate or modify the 

agreement, the contract is deemed to be illusory”].)

The Invention Agreement’s requirement that Tran arbitrate her claims in 

New Jersey, and submit to the jurisdiction of the New Jersey courts, combined with the

various provisions reflecting the unilateral nature of that arbitration requirement,

demonstrates a high degree of substantive unconsionability. Consequently, even 

assuming a relatively low degree of procedural unconscionability, we find no error in the 

trial court’s determination that the arbitration requirement was unconscionable.

Nor do we believe the trial court abused its discretion by refusing to sever 

the unconscionable provisions. As explained in Armendariz, where an arbitration 

agreement has more than one unconscionable provision, “[s]uch multiple defects indicate 

a systematic effort to impose arbitration on an employee not simply as an alternative to 

litigation, but as an inferior forum that works to the employer’s advantage.” 

(Armendariz, supra, 24 Cal.4th at p. 124.) In that situation, the Supreme Court held “the 

trial court did not abuse its discretion in concluding that the arbitration agreement is 

permeated by an unlawful purpose” and refusing to enforce that agreement. (Ibid.) We 

conclude the same is true here.

Besides, as the trial court pointed out, it could not simply sever a provision 

to make this agreement operate reasonably and bilaterally. Because there are numerous 

troublesome aspects to the agreement, it would require substantial revision to make it 

fair. The court was not required to undertake that task. Further, even if the court could 
19

have revised the agreement to make it operate bilaterally, the effort would be a 

meaningless one, since the parties’ employment relationship had already ended and 

defendants are not asserting any claims against Tran. Thus, even if the trial court were 

able to strike the language that effectively exempts defendants from arbitrating their

claims, it would not actually change anything. The court was not required to engage in 

such a fiction. 

Finally, the fact defendants were willing to waive the requirement that Tran 

arbitrate in New Jersey changes nothing. The same offer was made by the defendants in 

Armendariz, and rejected by the Supreme Court: “[W]hether an employer is willing, now 

that the employment relationship has ended, to allow the arbitration provision to be 

mutually applicable, or to encompass the full range of remedies, does not change the fact 

that the arbitration agreement as written is unconscionable and contrary to public policy.

Such a willingness ‘can be seen, at most, as an offer to modify the contract; an offer that 

was never accepted. No existing rule of contract law permits a party to resuscitate a 

legally defective contract merely by offering to change it.’” (Armendariz, supra, 24 

Cal.4th at p. 125.)

4. Revival of Arbitration Provision in the Applicants’ Agreement

Defendants’ last argument is that even if the trial court correctly concluded 

that the arbitration provision in the Applicants Agreement had been superseded by the 

provision in the Invention Agreement, the trial court’s refusal to enforce the latter 

provision necessarily “revive[d] the arbitration provision within the Applicants 

Agreement.” In support of that argument, defendants cite Airs Int’l v. Perfect Scents 

Distributions, Ltd. (N.D.Cal. 1995) 902 F.Supp. 1141, 1148, for the proposition that “if a 

subsequent agreement is voidable, the prior contract becomes enforceable again.”

But whatever the validity of that legal proposition, it does not help 

defendants here. In making that assertion, defendants have failed to account for the 

employment offer letter that Tran signed after the Applicants Agreement and before the 
20

Invention Agreement. That letter also contains an integration clause, which specifies it 

“sets forth the entire agreement between you and IsoTis. Once signed by you, it will 

become legally binding and will supersede all prior discussions, promises, and 

negotiations.” (Italics added.) Thus, it is that offer letter, not the Invention Agreement, 

which actually superseded and extinguished the Applicants Agreement Tran signed when 

she applied for employment with IsoTis OrthoBiologics, Inc.

4

And consequently, the 

court’s finding that the arbitration provision contained in the Invention Agreement was 

not enforceable could only have revived an arbitration provision contained in the offer 

letter. But there was none. 

In any event, defendants have never established that the Applicants 

Agreement, even if it were revived, would actually entitle them to arbitrate Tran’s claims 

against them. As we have already noted, the Applicants Agreement specifically identifies 

only one party, Tran, and she is the only signatory. It otherwise merely refers to the other 

party as the company, without ever identifying what specific company it is referring to. 

On appeal, defendants do not acknowledge this problem, preferring instead to imply they 

are all one undifferentiated entity or purposes of that agreement. Thus their opening brief 

 

4

 The only part of the Applicants Agreement that would not have been 

automatically superseded by the offer letter is what we have already identified as the 

stand alone paragraph specifying that if Tran is hired, her employment would be at will. 

As we explained, it is that stand-alone provision which included the sentence specifying 

it could only be contradicted by an agreement signed by the company president. 

However, the point is moot because nothing in the offer letter contradicted that provision. 

Instead, the offer letter contains a similar provision, stating that “IsoTis OrthoBiologics, 

Inc. is an at-will employer, and cannot guarantee employment for any specific duration. 

You are free to resign, and IsoTis is entitled to terminate your employment at any time, 

with or without cause.” And just like the similar provision in the Applicants Agreement, 

the provision in the offer letter specifies the at-will nature of the employment 

relationship—but no other provision in the agreement—can only be altered by agreement 

of the highest company executive: “This provision can only be changed or revoked by 

the CEO, and cannot be changed by any express or implied agreement based on 

statements or action by any employee or supervisor.” 
21

simply asserts that the Applicants Agreement was entered into between all three of them, 

collectively, and Tran. And thereafter, they make references to Tran “interview[ing] with 

Appellants” and “working for Appellants” 

However, defendants otherwise inform us they are not all the same 

company. Rather, they explain that IsoTis OrthoBiologics, Inc. and IsoTis, Inc. are 

subsidiaries of Integra. Thus, the language of the Applicants Agreement suggests it 

would apply to only one of them, while not specifying which one. This omission is in 

marked contrast to the Invention Agreement, which clearly states that the “Company”

referenced therein encompasses Integra, any of its subsidiaries, or any of their successors 

and assigns. When this issue was raised by Tran at the trial court level, defendants 

simply dismissed it, claiming “[Tran’s] argument that the agreement’s term, ‘Company,’

is vague is without merit given the context in which [Tran] was supplied the agreement.” 

They do not explain what context that was, other than to note it was “IsoTis 

OrthoBiologics [which] provided [Tran] with the Applicant’s Agreement concurrently 

with her application for employment.”

The only inference we could draw from that terse response is that IsoTis 

OrthoBiologics, Inc.—the specific company Tran applied to work for—is the only likely 

candidate to fill the role of “Company” in the Applicants Agreement. By contrast, the 

other two defendants, Integra and IsoTis, Inc., have no claim to that status. Thus, at best, 

the Applicants Agreement might have provided a basis for one of these three defendants 

to demand that Tran arbitrate her claims against. It was not, however a sufficient basis to 

grant their combined motion to compel Tran to arbitrate against all of them. 
22

DISPOSITION

The order is affirmed. Defendants request for judicial notice is granted. 

Tran is to recover her costs on appeal.

THOMPSON, J.

WE CONCUR:

ARONSON, ACTING P. J.

IKOLA, J.