Filed 6/28/22 Mirzoy a n v. West Coast Wound and Skin Care CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

D IVISION ONE

ANI MIRZOYAN

,

Plaintiff and Respondent

,

v.

WEST COAST WOUND AND SKIN CARE INC., et al.

,

Defendant s and Appellants ;

ANTHONY SAIDIANI,

Defendant. B 310901

(Los Angeles County Super. Ct. No. 20BBCV00378 )

APPEAL from an order of the Superior Court of
Los Angeles County

, William D. Stewart, Judge. Reversed and
remanded with instructions. Clark Hill, Rafael G. Nendel

- Flores and Monique A. Eginli
for Defendants and Appellant s West Coast Wound and Skin Care Inc. and Lydia Alsa

.2 No appearance for Defendant Anthony Saidiani. Lyon Law , G eoffrey C. Lyon and Henry Harmeling IV for
Plaintiff and Respondent.

____________________________

West Coast Wound and Sk in Care Inc. (WCW) hired
Ani Mirzoyan a s an administrative employee in November 2019

. Before the commencement of Mirzoyan’s tenure at WCW , she and a representative of WCW executed an arbitration agreement covering claims or controversies arising out of her employment. Mirzoyan alleges WCW wrongful ly terminated her in April 2020. Mirzoyan filed suit against WCW, Lydia Alsa, and Anthony Saidiani, alleging a wrongful termination claim and various
causes of action under the California Fair Employment and Housing Act (FEHA, G ov. Code, § 12900 et seq.) and Labor Code
sections 1102.5 and 1102.6

. WCW and Alsa (collectively, appellants) moved to compel arbitration. The trial court denied
the motion upon finding the arbitration agreement
unconscionable. Although the court found the agreement was procedurally unconscionable only to a limited degree as an adhesion contract , the court concluded the agreement was substantively unconscionable becau se it requires only Mirzoyan

to arbitrate her employment

- related claims

. Appellants seek
review of th e trial court’s order denying their motion. 1 The trial court did not err in finding that the arbitration agreement present ed a low degree of procedural

1 Although appellants identified Saidiani as a party to this appeal i n their civil case information statement

, Saidiani has not made an appearance before this court

.3

unconscionability. We , however, disagree with the court’s finding

t hat the agreement requires only Mirzoyan to arbitrate her claims. Although the arbitration agreement was inartfully drafted, the text nonetheless reveals that both Mirzoyan and
WCW agreed to submit their respective claims against each other
to final and b inding arbitration.
As to Mir z oyan’s other claims of substantive unconscionability, w e agree only as to two of them

— a one

- sided prearbitration condition requiring the employee but not the employer informally to attempt to negotiate her claims with the

em ployer

, and an attorney fees and costs provision requiring each
side to bear its own attorney fees and costs incurred in
arbitration . Because , however, these provisions are collateral to
the purpose of the arbitration agreement and can be easily
excised f rom the agreement , we sever them and otherwise enforce the arbitration agreement. Lastly, we conclude Alsa may enforce the agreement as a third

- party beneficiary , but remand to the trial court to determine, in the first instance, (a) whether Mirzoyan shoul d be required to arbitrate her claims against Saidiani ; and (b) whether the proceedings should be stayed pending completion of
arbitration. In sum, we reverse the order denying appellants’ motion to compel and remand the matter for further proceedings consistent with this opinion

.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize only those facts that are relevant to this appeal.4

1. Mirzoyan’s c omplaint
On June 15, 2020, Mirzoyan filed a complaint against WCW, Alsa, and Saidiani. 2 In the complaint, Mirzoyan allege s that from approximately November 2019 to her termination on or about April 17, 2020, she was employed as an “ ‘ I ntake
A dministrative As sista nt ’ ” at WCW. Mirzoyan aver s that Alsa was a “Scheduler” at WCW who “began to verbally harass [Mirzoyan] daily based on [Mirzoyan’s] race” from on or about November 5, 2019 until Alsa was terminated in or around
December 2019. Mirzoyan assert s that Saidi ani was the chief operating officer of WCW, and that he “created an objectively hostile working environment for [Mirzoyan]” and discriminated against Mirzoyan because of her pregnancy. Mirzoyan alleges WCW terminated her on or about April 17, 2020 on account of her pregnancy and in retaliation for making certain complaints of
unlawful discrimination

. The complaint levels the following fourteen causes of action: (1) wrongful termination in violation of public policy against WCW; (2) gender/pregnancy discrimination under FEHA against WCW; (3) harassment based on gender/pregnancy under FEHA against WCW and Saidiani; (4) har assment based on disability under FEHA against WCW and Saidiani; (5) disability discrimination under FEHA against WCW; (6) retaliation for requesting and using accommodations for disabilities under FEHA against WCW; (7) failure to engage in a timely, good faith, interactive process to determine reasonable accommodation for

2 Curiously, appellants did not designate the complaint for inclusion in the clerk’s transcript. We, sua sponte, take judicial notice of this pleading. (Evid. Code, §§ 452, subd. (d), 459.)5

disability under FEHA against WCW; (8) failure to reasonably accommodate disabilities under FEHA against WCW; (9) pregnancy disability leave retaliation under FEHA against WCW; (10) pregn ancy disability leave discrimination under FEHA against WCW; (11) harassment based on race under FEHA against Alsa; (12) failure to prevent and stop harassment, discrimination, and retaliation under FEHA against WCW; (13) retaliation for opposing violation s of FEHA against WCW; and (14) whistleblower retaliation under Labor Code
sections 1102.5 and 1102.6 against WCW.

2. Appellants’ motion to compel arbitration and filings relating thereto
On December 18, 2020, appellants moved to compel Mirzoyan to submit h er claims to arbitration. 3 In support of the motion, appellants submitted the declaration of Dr. David Kay,
WCW’s chief executive officer . Dr. Kay attested that WCW provided Mirzoyan with an e mployment a greement and an arbitration agreement , both of whi ch Dr. Kay (on behalf of WCW) and Mirzoyan signed on or about November 4, 2019. These documents were attached to Dr. Kay’s declaration.
In Mirzoyan ’s opposition

, she argued that the arbitration agreement is unenforceable because it is procedurally and

su bstantively unconscionable. Mirzoyan d id not contest appellants’ assertion s that (a) she and WCW executed the arbitration agreement

, and (b) th e agreement covers the claims alleged in her complaint.

3 Although Saidiani appeared in the trial court proceedings, he did not join appellants’ motion to compel arbitration.6 Appellants filed a reply in support of their motion to compel.

3. The trial court’s order denying the motion to compel arbitration and appellants’ notice of appeal
On January 22, 2021, the trial court heard and denied appellants ’ motion to compel arbitratio n

. The court found the arbitration agreement “does reflect some limited degree of procedural unconscionability” because it is a contract of adhesion.
The court also concluded the arbitration agreement is substantively unconscionable because it “lacks mut uality between the parties

. ” Specifically, the court found t here exists under paragraphs 1 and 2 of the arbitration agreement “ an obligation binding [Mirzoyan] to bring all workplace concerns and disputes to company attention, and later arbitration, but no reciprocal obligation binding WCW.” The court declined to sever
the se unconscionable provisions from, and enforce the remainder of, the arbitration agreement on the ground that “an agreement’s lack of mutuality creates an ‘unconscionab le taint’ that permeates the entire agreement . . . .” Appellants timely appealed the trial court’s order denying
their motion. 4

STANDARD S OF REVIEW

“ ‘ In ruling on a motion to compel arbitration, the trial court shall order parties to arbitrate “if i t determines that an agreement to arbitrate the controversy exists

. . . . ” [Citation.]

4 “The denial of a motion to compel arbitration is an appealable order.” ( Hernandez v. Ross Stores, Inc. (2016) 7 Cal.App.5th 171, 17 6 ; Code Civ. Proc., § 1294, subd. (a) .)7

“ [T]he party seeking arbitration bears the burden of proving the existence of an arbitration agreement by a preponderance of the evidence, and the party opposing arbit ration bears the burden of proving by a preponderance of the evidence any defense . . . .” [Citation.] ’ ” ( Western Bagel Co., Inc. v. Superior Court (2021)
66 Cal.App.5th 649, 662 ( Western Bagel Co., Inc. ) .) Unconscionability is a defense to enforcement o f an arbitration agreement. (See Lange v. Monster Energy Co. (2020) 46 Cal.App.5th 436, 444

– 445 ( Lange ) .) “ ‘ “ [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. . . . . [T] he more substantively oppressive the contract term, the less evidence of procedural unconscionabili ty is required to come to the conclusion that the term is unenforceable, and vice versa. ’ [Citation.]” ( Id. at p. 44 5 .) “ [I]f a trial court concludes that an arbitration agreement contains unconscionable terms, it then ‘must determine whether these terms should be severed, or whether instead the arbitration agreement as a whole should be invalidated.’ [Citation.] ” ( Id. at pp. 452

– 453.)

“ ‘ In evaluating an order denying a motion to compel arbitration, “ ‘ “ we review the arbitration agreement de novo to determine whether it is legally enforceable, applying general principles of California contract law. ” ’ ” [Citation.] ’ ” ( Western Bagel Co., Inc.

, supra , 66 Cal.App.5th at p. 662 .) “We review a8

trial court’s order declining to sever . . . unconscionable provisions from an arbitration agreement for abuse of discretion. ” ( Lange

, supra , 46 Cal.App.5th at p. 453.)

DISCUSSION

A. The A rbitration A greement Possesses Some Limited Degree of Procedural Unconscionability

T he trial court did not err in finding that the arbitration
agreement “does reflect some limited degree of procedural unconscionability” because it is an adhesion contract. Appellants do not challenge the trial court’s finding that the arbitration
agreement is an adhesion contract. In addition, Dr. Kay
admitted in his decl aration that WCW’s offer of employment to Mirzoy an “was conditional based on [Mirzoyan] executing ” the
“standard stand

- alone” arbitration agreement

. This evidence indicates WCW presented the arbitration agreement to Mirzoyan as a condition of employment w ithout any opportunity to negotiate its standardized terms. Mirzoyan intimates that the trial court minimized the degree to which the agreement is procedurally unconscionable

. Specifically, she argues th e agreement contains an element of surprise because “ the recitals and Par[agraph] 5 are intended to cause the reader to think the agreement requires all parties to mutually arbitrate all claims, when . . . only the employee’s claims ‘shall’ go to arbitration, while the employer’s ‘may.’ ” This argument fai ls because, as we explain in Discussion, part B, post , the arbitration agreement obligates her and WCW to submit their respective claims against each other to binding arbitration.
Because the only indici um of procedural unconscionability presented by the a rbitration agreement is its status as a contract9

of adhesion, the trial court did not err in finding the agreement presents a low degree of procedural unconscionability. (See Serpa v. California Surety Investigations, Inc. (2013)
215 Cal.App.4th 695, 704 [“ It 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.

. . . [¶] . . . When, as here, there is no other indication of oppression or surprise, ‘ the degree of procedural unconscionability of an adhesion agreement is low

. . . .’ ”].)

B. The A rbitration A greement Is Mutually Binding
The crux of this appeal is whether the trial court erred in concluding the arbitration agreement obligates Mirzoyan but not
WCW to arbitrate claims. The court’s conclusion in that regard hinged on its construction of p aragraphs 1 and 2 of the
agreement
, which provide : “1. Employee is obligated to bring all workplace concern(s) or dispute(s) (‘Issue’) to the attention of Company management, in writing, for possible resolution. The writing should contain a brief description of the issue, the parties involved, and relevant da te(s). Company response, if any, will be provided to the Employee within thirty (30) days of the date the issue is brought to Company’s attention.
“2. If after thirty (30) days the Employee is not satisfied with Company response, then the Issue, which inc ludes but is not limited to, any and all claims or controversies arising out of Employee’s application or candidacy for employment, employment , or cessation of employment with the Company, shall be resolved through final and binding arbitration pursuant to the National Rules for the Resolution of Employment Disputes of the10

American Arbitration Association (‘AAA’) in existence as of the time the dispute arises. A copy of the Rules can be obtained from the AAA’s website, adr.org/Dispute Resolution
Services/A rbitration/Mediation/Employment Rules , or will be provided to you upon request. Arbitration may be initiated by either the Employee or the Company in accordance with the procedures specified in those Rules. The claims which are subject
to arbitration sha ll include, but not be limited to, any and all employment

- related claims or controversies, such as breach of employment agreement, breach of the covenant of good faith and fair dealing, negligent supervision or hiring, wrongful discharge in violation of pu blic policy , unpaid wages of overtime under the state and federal wage payment laws, breach of privacy claims

, intentional or negligent infliction of emotional distress claims, fraud, defamation, and divulgence of trade secrets.” At first blush, p aragrap h 1 and the first sentence of

p aragraph 2 suggest the arbitration contemplated by this
agreement encompasses only claims raised by Mirzoyan after she
had presented them to WCW. T he remainder of p aragraph 2 and
other text in the arbitration agreement , however, demonstrate
that the parties intended to be mutually bound to arbitrate any disputes between them relating to Mir zo yan’s employment. 5 (See Quantification Settlement Agreement Cases (2011)

2 01 Cal.App. 4th 758, 799 [“ ‘[E]ven if one provision of a contract is clear and explicit, it does not follow that that portion alone

5 As we explain in Discussion, part C.1, post , however,

p aragraphs 1 and 2 obligate only Mirzoyan to participate in the prearbitration dispute resolution mechanism before submitting her claims to arbitration.11

must govern its interpretation; the whole of the contract must be taken together so as to give effect to every part.’ ”].)
F irst, the provision allowing “[a] rbitration [to] be initiated by either the Employee or the Company in accordance with the procedures specified in [the aforementioned AAA] Rules” supports this conclusion

. 6 AAA r ule 4 indicate s that in the
absence of the parties’ “joint request for arbitration,” arbitration
must be initiated by filing a “Demand” that raises a “claim” to
which the other party may respond. 7 If WCW’s claims were not covered by the arbitration agreement

, then , if WCW exercised its contractual right to initiate arbitration by presenting a claim against Mirzoyan , she could simply refuse to participate in the
arbitration and insist that WCW file a court action. (See Holley v. Silverado Senior Living Management, Inc. (2020)

6 We use the shorthand “AAA r ules” to refer to these procedures.

7 In support of their motion to compel, appellants requested judicial notice of the AAA r ules , a copy of which was attached to the ir request

. The trial court did not rule on this request fo r judicial notice , presumably because it s denial of the underlying motion to compel mooted the request

. We take judicial notice of the AAA r ules because Mirzoyan does not dispute their authenticity on appeal

, there is no indication she did so below, and t he AAA r ules “are not subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (See Evid. Code, § § 452, subd. (h) , 459 ; Emerald Aero, LLC v. Kaplan (2017) 9 Cal.App.5th 1125, 1132, fn. 5 [sua sponte taking judicial notice of arbitration association rules]; San Francisco CDC LLC v. Webcor Construction L.P. (2021) 62 Cal. App.5th 266, 281, fn. 5 [taking judicial notice of a document in part because its authentici ty had not been challenged] .)12

53 Cal. App.5th 197, 201 [ “ ‘[P]arties can only be compelled to arbitrate when they have agreed to do so. [Citation.] “Arbitration is a matter of consent, not coercion

. . . .” ’ ”].) Thus,
we cannot construe the arbitration agreement as encompassing only Mirzoyan’s claims without running afoul of our obligation to “ ‘avoid [an] interpretation[ ] that render[s] any portion superfluous, void or inexplicable.’ [Citation.]” (See United Farmers Agents Assn., Inc. v. Farmers Group, Inc. ( 2019)

32 Cal.App.5th 478, 495 ( United Farmers Agents Assn., Inc. ) .)
Second

, p aragraph 2 provides a nonexhaustive list of “[t]he claims which are subject to arbitration

. . . . ” Several of the
claims listed are those that an employee would likely assert , s uch

as “wrongful discharge in violation of public policy ” and “unpaid

. . . overtime under the state and federal wage payment
laws .” Nevertheless, the list includes a claim that only an employer would be expected to raise

— i.e., “divulgence of
trade secrets.” (See Mercuro v. Superior Court (2002)

96 Cal.App.4th 167, 171, 17 6 [identifying claims for “ ‘the use
and/or unauthorized disclosure of trade secrets or confidential
information’ ” as causes of action the employer “is most likely to bring agains t its employees”].) Accordingly, this aspect of the agreement further evinces the parties’ intention to be bound to arbitrate Mirzoyan ’s and WCW ’s claims

. Third, p aragraph 5 employs language suggesting the parties intended that the arbitration agreement b e mutually binding

. P aragraph 5 provides: “ The parties to this Agreement
intend to arbitrate any disputes between them on an individual basis only. To the fullest extent permitted by law, the parties agree that they shall not join or consolidate claims submitted for arbitration under this Agreement with those of any other13

persons, and that no form of class, collective, or representative
action shall be maintained without the mutual consent of the parties.” (Italics added.) Paragraph 5 would not have refer red to “the parties[’]”
intent to arbitrate “any disputes between them ” and barred either side from joining or consolidating “claims submitted for
arbitration” if only Mirzoyan were obligated to submit her claims

t o final and binding arbitration

. Moreover, the fa ct that the following p aragraph states that “ Employee will not be disciplined or retaliated against by the Company if Employee seeks to pursue claims on a class, collective, or representative basis” further supports th e inference that the agreement is mutually binding

, given that the two provisions differentiate between (1) the rights and obligations of “the parties” vis

- à

- vis joinder and (2) those of just “Employee”

— i.e., Mirzoyan. (Italics added.) (Cf. Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107,

1111

– 1112, 1134

– 1137 [ rejecting the plaintiffs’ argument that the term “Purchaser” in an agreement included a contracti ng party’s subsidiaries in part because the agreement’s definition of
“Purchaser” did not include subsidiaries and, “[w]hen the parties intended to identify ‘subsidiaries[ ]’ [elsewhere in the agreement

, ] they knew how to do so” ].) Mirzoyan contends that “ Paragraph No. 5 applies to class, collective and representative actions” and “[o]nly an employee would bring a class, collective or representative action, not an employer against the employee.” Mirzoyan overlooks the text in

p aragraph 5 that bars not only class, collective, or representative actions, but any joinder or consolidation of claims submitted to arbitration

, thus prohibiting WCW from joining claims against Mirzoyan with claims belonging to persons other than WCW

.14 Lastly, the arbitration agreement ’s recitals confirm our interpretation of the arbitration agreement as being mutual. One of the recitals states, “Employee and Company desire to resolve any and all future disputes between them in the most expediti ous and economical f

ashion possible” and “Employee and Company recognize and agree that arbitration of any and all disputes
between them through binding, impartial arbitration is in the
best interest s of both parties . . . .” (Italics added.) (See Burch v. Premier Homes, LL C (2011) 199 Cal.App.4th 730, 744 ( Burch ) [indicating that a n agreement’s recitals may provide evidence of the contracting parties’ intent].) In sum, when the arbitration agreement’s terms are read as a whole, it is evident that each side agreed to submit its or her respective employment

- related claims to final and binding
arbitration. The trial court erred in holding that the arbitration
agreement is substantively unconscionable because it lacks mutuality.

C. Certain Provisions o f the A rbitration A greement Are Substantively Unconscionable

1. The prearbitration dispute resolution mechanism is substantively unconscionable
Paragraph 1 of the arbitration agreement requires the employee to “bring all workplace concern(s) or dispute(s) . . . to the attention of Company management ” “for possible resolution” in a writing “contain[ing] a brief description of the issue, the parties involved, and relevant date ( s ) ,” and pr ovides that the “Company[’s] response, if a ny” will be provided to the employee
within 30 days thereafter. The first sentence of p aragraph 2
authorizes the employee to arbitrate the workplace concern or15

dispute “[i]f after thirty (30) days the Employee is not satisfied
with Company response . . . .” The arbitration agreement does not contain any language requiring WCW to discuss its claims with Mirzoyan before resorting to arbitration.
“W hile on [their] face, th[ese] provision[s] may present a
laudab le mechanism for resolving employment disputes informally

, ” the ir “unilateral nature” “suggests that [WCW] would receive a ‘free peek’ at [Mirzoyan’s] case, thereby obtaining an advantage if and when [she] were to later demand
arbitration. ” (See Nyulassy v. Lockheed Martin Corp. (2004)
120 Cal.App.4th 1267 , 12 82

– 1283 ( Nyulassy ) ; see also id. at

p. 1273 & fn. 4 [ indicating that the arbitration clause in Nyulassy required the plaintiff

- employee , but not the defendant

- employer,

to adhere to the prearbitration dispute resolution procedure] .)
Given t h e unfairly one

- sided nature of the arbitration
agreement ’s prearbitration dispute resolution mechanism

, and appellants’ failure to offer any justific ation for it after Mirzoyan raised the issue in her respondent’s brief, we conclude this prearbitration dispute resolution mechanism is substantively
unconscionable. (See id. at pp. 1283, 1287

– 1288 [concluding that an arbitration clause was substantively unconscionable in part
because of its one

- sided prearbitration dispute resolution

m echanism] ; Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74

, 78

– 79, 81, 89

– 90 [concluding that a

“ unilateral ‘free peek’ provision” was one of s everal “unconscionable provisions” in an arbitration agreement ]; Lange

, supra , 46 Cal.App.5th at p. 447 [ “[S] ubstantive unconscionability

‘ pertains to the fairness of the agreement ’ s actual terms. ’ [Citation.] . . . ‘ “[U]nconscionability turns not only on a ‘ one

-16

sided ’ result, but also on an absence of ‘ justification ’ for
it

. . . . ” ’ ”].)

2. The attorney fees/costs provision is substantively
unconscionable
Paragraph 7 of the arbitration agreement provides in pertinent part : “ The parties

. . . shall be responsible for their own attorneys’ fees and costs incurred in presenting their case to the
Arbitrator. ” Mirzoyan argues that this provision is substantively
unconscionable because it bars her fro m invoking her statutory right to seek attorney fees and costs if she prevails on her claims.
W e agree

. Before reaching Mirzoyan’s challenge to this provision

, we address a related issue . Mirzoyan points out that

p aragraph 18(c) of the e mployment a greement provides : “If either party employs attorneys to enforce any rights arising out of or relating to this agreement, the losing party shall reimburse the prevailing party for its reasonable attorneys’ fees.” The trial court rejected Mirzo yan’s reliance on p aragraph 18(c) , reasoning
that (a) she had “fail[ed] to show that either the A rbitration
A greement or the Employment Agreement contain provisions providing for any supplantation of the A rbitration A greement ’s attorney fee provision ” foun d in p aragraph 7, and (b) “[t]he
A rbitration A greement . . . provides in paragraph 12 [that it] . . . supersede[s] all prior agreements or understandings between the parties concerning the subject matter of arbitration.” 8

8 (See also Code Civ. Proc. , § 1856, subd. (a) [“ Terms set forth in a writing intended by the parties as a final expression of their agreement with respect to the terms included therein17 Mirzoyan does not contest the trial court’s conclusion that

p aragraph 7 of the arbitration agreement supersedes

p aragraph 18(c) of the e mployment a greement

. Accordingly,

we proceed on the assumption that p aragraph 7

— and not

p aragraph 18(c)

— governs the part ies’ rights vis

- à

- vis attorney
fees and costs

. (See Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999) 75 Cal.App. 4th 110 , 118 [“ [T] he general rule [is] that trial court rulings are presumed correct. ”];
In re D.N. (2020) 56 Cal.App. 5th 741
, 767 [ “ ‘[I]t is as much the duty of the respondent to assist the [appellate] court upon the appeal as it is to properly present a case in the first instance, in the court below.’ ”].) As previously noted, p aragraph 7 requir es both parties to bear their respecti ve attorney fees and costs, regardless of whether Mirzoyan prevails. Conversely, FEHA provides that “the court, in its discretion, may award to the prevailing party . . . reasonable attorney’s fees and costs, including expert witness fees, except that

. . . a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so. ” (See Gov

. Code, § 12 965, subd. (c) (6).)
Labor Code section 1102.5 authorizes “ [t] he court

. . . to award reasonable attorney ’ s fees to a plaintiff who brings a
successful action for a violation of ” that statute. (See Lab. Code, § 1 102.5, subd. (j).)

may not be contradicted by evidence of a prior agreement or of a contemporaneous oral agreement.” ].)18 Paragraph 7 ’s attorney fee s and cost s provis i o n is thus substantively unconscionable because it abridges Mirzoyan’s statutory rights to seek attorney fees and costs as a prevailing party. (See Serafin v. Balco Properties Ltd., LLC (2015)

235 Cal.App.4th 165 , 183 ( Serafin ) [“ By requ iring both parties to bear their own attorney fees and costs, the provision before us

. . . runs counter to FEHA which allows a successful plaintiff to recover attorney fees and costs from the employer (but does not similarly allow an employer to recover f ees and costs from an employee in most cases). [Citation.] Such a modification of California law is inappropriate

. . . as it has the effect of denying a plaintiff the rights and remedies he or she would have if he or she were litigating his or her claim s in court. ”].) Appellants do not dispute th e general proposition that a contractual provision requiring an employee to bear his or her own attorney fees and costs is substantively unconscionable. Instead, they assert that the following language from

p ara graph 8 empowers the arbitrator to order appellants to pay Mirzoyan ’s attorney fees and costs if she prevails : “The Arbitrator shall have the power to award all legal relief available in a court of law, including any and all damages that may be available for any of the claims asserted.” Appellants’ resort to paragraph 8 fails

. Although the
American Rule “prov ides that each party to a lawsuit must ordinarily pay his or her own attorney fees,” there are several exceptions to this rule, including when “ ‘fees are specifically provided for by statute . . . .’ ” (See Tract 19051 Homeowners Assn. v. Kemp (2015) 60 Cal.4th 1135, 1142 & fn. 2 .) In addition, a prevailing party is typically entitled to costs as a matter of right. (See Code Civ. Proc., § 1032, subd. (b).) By its terms, the19

fees/costs clause of paragraph 7 bars Mirzoyan from invoking exceptions to the American R ule and obtaining a cost award as a prevailing party via the Code of Civil Procedure and/ or FEHA

, given that the contractual provision requir es each side to bear its own attorney fees and costs

. I f pa ragraph 8 were interpreted to allow Mirzoyan to nevertheless seek recover y of attorney fees and

costs
, then the fee s /costs provision of paragraph 7 becomes nugatory

. We cannot countenance such a construction of the

contract. (See United Farmers Agents Assn., Inc.

, supra , 32 Cal.App.5th at p. 495.) Appellants further maintain that AAA r ule 39(d) safeguards Mirzoyan’s right to seek attorney fees and costs if she prevails in the arbitration. As pertinent here, that r ule provides: “The arbitrator may grant any remedy or relief that would have been available to the parties had the matter been heard in court including awards of attorney’s fees and costs, in accordance with applicable law.” It appears that appellants are claiming that

r ule 39(d) should be treated as a term of the arbitration agreement

. Regardless of whether that premise is valid, it would

not resuscitate the enforceability of the fees/costs provision of

p aragraph 7 . To hold otherwise would , once again, prevent the attorney fees/costs provision from serving any pu rpose

. 9

9 AAA r ule 1 provides that “[i]f a party establishes that an adverse material inconsistency exists between the arbitration agreement and these rules, the arbitrator shall apply these rules.” Appellants do not contend that AAA r ule 1 invalidates the portion of paragraph 7 that precludes Mirzoyan from obtaining an award of attorney fees and costs.20 For these reasons, we conclude that the portion of

p aragraph 7 requiring each side to bear its own attorney fees and costs is substantively unconscionable.

3. Th e clauses providing that the arbitral award will be “final and binding” are not substantively
unconscionable
Mirzoyan claims th e arbitration agreement ’s provisions requiring the parties to submit to final and binding arbitration operate as a waiver of her right to vacate an award on the ground
that “ ‘[t]he arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted. ’ ” Statutory and case law do not support this contention

.

“ [ T ] he ‘final and binding’ language of [an] arbitration agreement does not pre clude judicial review of an ar bitration award pursuant to Code of Civil Procedure sections 1286.2
and 1286.6.” (See Serafin

, supra , 235 Cal.App.4th at p. 184 .) In turn, Code of Civil Procedure section 1286.2, subdivision (a)(4)
authorizes the relief Mirzoyan claims is necessary to safeguard her rights

, i .e., a court shall vacate an award if “[t]he arbitrators exceeded their powers and the award cannot be corrected without affecting the merits of the decision upon the controversy submitted.” ( Code Civ . Proc., § 1286.2, subd. (a)(4).) Appellants claim the F ederal Arbitration Act ’s judicial review provisions found in title 9 U nited S tates C ode sections 9
and 10 govern any future petition to vacate an arbitral award.
Much like Code of Civil Procedure s ection 1286.2, title 9 U nited
States Code section 10 would allow the parties to seek vacation of
an award on the ground that “the arbitrators exceeded their powers . . . .” (See 9 U.S.C. § 10(a)(4) .) W hether this federal21

procedure would apply to a petition to vacate filed in this matter is not altogether clear

, 10 and is an issue we need not decide.
E ven if the federal judicial review procedures we re applicable, the parties’ obligation to submit to final and binding arbitration
would not be substantively unconscionable because they could petition to vacate the award under title 9 U nited S tates C ode
section 10

.

D. The Prearbitration Dispute Resolution and Attorney
Fees/Costs Provisions Are Severable f rom the
A rbitration A greement Paragraph 11 of the arbitration agreement provides: “If, for any reason, any provision of this Agreement is determined by an arbitrator or a court of competent jurisdiction to be illegal or otherwise invalid, all other provis ions of this agreement shall remain in full force and effect, insofar as they are consistent with existing law.”

“ Civil Code section 1670.5, subdivision (a) states that ‘ [i]f the court as a matter of law finds the contract or any clause of the
contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result. ’ ” ( Lange

, supra , 46 Cal.App.5th at p. 452.)

10 Paragraph 9 of the arbitration agreement provides that the “ Agreement is entered into under the Federal Arbitration Act, and shall be interpreted and construed in accordance with the law and procedures developed under that statute.”22 In determin ing whether to sever one or more unconscionable provisions from a contract, “ ‘[c]ourts are to look to the various purposes of the contract[. ]’ . . . ‘ If the c entral purpose of the contract is tainted with illegality, then the
contract as a whole cannot be enforced. If the illegality is collateral to the main purpose of the contract, and the illegal provision can be extirpated from the contract by means of

seve rance or restriction, then such severance and restriction are appropriate. ’ [Citation.]” (See Lange

, supra , 46 Cal.App. 5th at

p. 454.)
“ ‘[T]he strong legislative and judicial preference is to sever the offending term and enforce the balance of the agre ement: Although “[Civil Code section 1670.5] appears to give a trial court
some discretion as to whether to sever or restrict the unconscionable provision or whether to refuse to enforce the entire agreement[,]

. . . it also appears to contemplate the lat ter course only when an agreement is ‘permeated’ by unconscionability.” ’ [Citations.]” ( See Lange

, supra , 46 Cal.App.5th at p. 45 3.)
T he trial court concluded that the entire arbitration
agreement was unenforceable because its “lack of mutuality

create s an ‘unconscionable taint’ that permeates the entire
agreement

. . . . ” The court found that this taint could be purged only “through augmentation rather than merely severing or restrict[ing] the agreement: an action that t he court is not authorized to perform.” The trial court did not consider whether
the arbitration agreement would have been enforceable if its only two substantively unconscionable aspects were the prearbitration dispute resolution mechanism and the attorn ey fees/costs provision addressed in Discussion, parts C.1 & C.2, ante

.23 We conclude , as a matter of law, that th e se two features of the arbitration agreement can be severed from the remainder of the agreement

. (See Lange

, supra , 46 Cal.App.5th at p. 453 [ holding that although the trial court’s decision whether to sever offending clauses from an arbitration agreement is reviewed for
abuse of discretion

, that discretion is constrained by “ ‘applicable legal principles ’ ” ] .) Although the prearbitration dispute resolution process is designed to “ resolv [e] employment disputes informally ” (see Nyulassy

, supra , 120 Cal.App.4th at p. 1282), it is nonetheless collateral to the main purpose of the arbitration agreement

. Assuming arguendo par agraphs 1 and 2 of the arbitration agreement would preclude Mirzoyan from initiating arbitration
until she ha d presented her claims to WCW in accordance with the procedures delineated in those two paragraphs

, the text of the arbitration agreement nonetheless indicate s that compelling her participation in this prearbitration dispute resolution
mechanism is not the central purpose of the contract. Specifically, t he recitals indicate the principal objective of the agreement is to enable the parties “ to resolve any and all future disputes between them in the most expeditious and economical fashion possible

, ” that is, “through binding, impartial
arbitration.” 11 (See Burch

, supra , 199 Cal.App.4th at p. 744

11 In their appellate briefing, neither side address es whether Mirzoyan participa ted in the arbitration agreement’s prearbitration dispute resolution process before she filed suit. Additionally, appellants do not claim that any failure on Mirzoyan’s part to comply with these prearbitration dispute resolution procedures would bar her f rom arbitrating her claims against them.24

[indicating that an agreement’s recitals may p rovide evidence of the contracting parties’ intent].)
T he portion of p aragraph 7 that requir es each side to bear its own attorney fees and costs i s a collateral provision

, given
that “ the main purpose of the arbitration agreement [i s ] not to regulate costs, but to provide a mechanism to resolve disputes. ” (See Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77

, 92; see also Serafin

, supra , 235 Cal.App.4th at p p

. 183

– 184 [concluding that a provision requiring each party to bear its own attorney fees and costs was collateral to the main purpose of an arbitration agreement].)
We agree with appellants that “ ‘ the illegal provision[s] can be extirpated from the contract by means of seve rance . . . .’ [Citation.] ” (See Lange

, supra , 46 Cal.App.5th at p. 454.) As appellants demonstrate in their opening brief, the prearbitration dispute resolution mechanism can be readily excised from the contract by deleting the entirety of p aragraph 1 and the first half
of the introduction sentence of p aragraph 2

, such t hat the first operative provision of the arbitration agreement would begin
with : “ [ A ] ny and all claims or controversies arising out of Employee’s application or candidacy for emp loyment, employment, or cessation of employment with the Company, shall be resolved through final and binding arbitration . . . .” 12 The attorney fees and costs provision may be re moved by simply

12 In offering these proposed deletions to the arbitration agreement, a ppellants were actually attempting to show that any lack of mutuality could be removed from the agreement

. Nevertheless, the deletions they p roposed have the effect of excising the prearbitration dispute resolution mechanism from the arbitration agreement

.25

deleting the underlined text from the second sentence of

p aragraph 7: “The parties may be represented by their own attorneys in the arbitration proceeding and shall be responsible for their own attorneys’ fees and costs incurred in presen ting
their case to the Arbitrator .” (Under scor ing added.) No text
needs to be added to the arbitration agreement to purge it of illegality. Additionally, we observe that the presence of more than

one unconscionable provision does not , per se, establish that
severance is improper. (See Lange

, supra , 46 Cal.App.5th at

p p

. 454

– 455.) Rather, “ ‘the dispositive question is whether “the central purpose of the contract ” is so tainted with illegality that there is no lawful object of the co ntract to enforce.’ [Citation.]” ( Id. at p. 455.) As we have explained above, the answer to that dispositive question is “no. ”

E. Appellants’ Request for an Order Compelling Mirzoyan to Arbitrate Her Claims Against Saidi ani and for a Stay Should Be Address ed by the Trial Court Upon Remand

A ppellants ask us to “reverse the Trial Court’s ruling and
remand this case with instructions to enter a new order compelling [Mirzoyan] to arbitrate her claims against all Defendants and staying all Trial Court proceeding s pending completion of arbitration.” (Italics added.) Appellants argue that even though Alsa and Said ia n i are not signatories to the arbitration agreement , those two defendants may compel Mirzoyan to arbitrate her claims against them

. We agree that Alsa may enforce the terms of the arbitration agreement against Mirzoyan

. The arbitration
agreement provides that it is “intended to apply to any claim26

Employee may have against any of the Company’s officers, directors, employees, agents, or any of its affiliated or related
entities . . . .” In her complaint, Mirzoyan alleges that Alsa was a “Scheduler” at WCW when she “verbally harass [ ed Mirzoyan] daily based on [Mirzoyan’s] race

. . . . ” T h e pleading indicates the job title “Scheduler” r efers to a position of employment at
WCW

. Therefore, Alsa is a third

- party beneficiary of the arbitration agreement

. 13 Although appellants asked the trial court for an order compelling Mirzoyan to arbitrate her claims against all named
defendants , the court did n ot address whether Mirzoyan’s claims against Said ia ni are subject to arbitration because it denied the entirety of th e motion to compel

. For that same reason, the trial
court had no occa sion to address appellants’ request to stay the
action pending arbitration

.

13 (See Cargill, Inc. v. Souza (2011) 201 Cal.App.4th 962, 967 [ holding that “ ‘ “ [t] he test for determining whether a contract was made f

or the benefit of a third person is whether an intent to benefit a third person appears from the terms of the
contract [,] ” ’ ” and that a third

- party beneficiary “ may enforce the contract” ]; Michaelis v. Schori (1993) 20 Cal.App.4th 133, 135, 139 [holding that a nonsignatory employee or associate could invoke an arbitration agreement against a plaintiff who was a party thereto because the contract provided that all claims against the employees and associates of the defendant

- signatory must be arbitrated]; Harris v. Superior Court (1986) 188 Cal.App.3d 475, 477, 478

– 479 [holding that a doctor

- employee of a professional corporation was a third

- party beneficiary of an arbitration agreement that covered claims agains t the professional corporation and its “ ‘employees or other contracting health professionals’ ”].)27 Because appellants do not explain why

— despite Saidi a ni’s failure to join their motion to compel

— Mirzoyan should be
ordered to arbitrate her claims against Said ia ni , we decline to

r each this issue

. (See Hernandez v. First Student, Inc. (2019)

37 Cal.App.5th 270, 277 [“ ‘We are not bound to develop appellants’ arguments for them.’ ”].) We leave that matter for the
trial court to decide in the first instance upon remand. B ecause the resolution o f that issue affects whether a stay of all or only part of the trial court proceedings may be appropriate, appellants’ request for a stay is not ripe for our review. (See
Wilson & Wilson v. City Council of Redwood City (2011)

191 Cal.App.4th 1559, 1573 [“ ‘ A controversy is “ripe” when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision
to be made.’ ”].) On remand, t he trial court may address the propriety of appellants’ request for a stay in the first instance as well.28 DISPOS ITION

We reverse the trial court’s order denying the motion to compel arbitration

. Upon remand, the trial court shall : (a) determine in the first instance whether to compel
Ani Mirzoyan to arbitrate her claims against Anthony Saidi a ni

, and (b) undertake further proceedings consistent with this opinion. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED.

BENDIX, J.

We concur:

ROTHSCHILD, P. J.

C HANEY, J.