Filed 3/18/22 Nunez v. Cycad Management CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

JOSE MERCED NUNEZ,

Plaintiff and Respondent,

v.

CYCAD MANAGEMENT LLC,

Defendant and Appellant.

 B306986

 (Los Angeles County

 Super. Ct. No. 

 19STCV30365)

APPEAL from an order of the Superior Court of Los Angeles 

County, Dennis J. Landin, Judge. Affirmed.

David Weiss Law and Nicholas A. Weiss for Defendant and 

Appellant.

Alireza Alivandivafa; Light Law Group and Azad M. Marvazy for 

Plaintiff and Respondent.

________________________________________
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Appellant Cycad Management LLC moved to compel arbitration

of respondent Jose Merced Nunez’s lawsuit. (Code Civ. Proc., § 1281.2.) 

In support of the motion, Cycad offered a “Mutual Arbitration 

Agreement” (Agreement). The trial court found the Agreement

unconscionable and refused to enforce it.

Substantial evidence supports factual findings that the 

Agreement is adhesive because it was presented to Nunez as a 

nonnegotiable condition of his employment. It is procedurally 

unconscionable because it was given to Nunez in English, which he 

cannot read, without adequate explanation or a fee schedule. It is 

substantively unconscionable because it allows the arbitrator to shift

attorney fees and costs onto Nunez and drastically limits his ability to 

conduct discovery. We affirm the denial of Cycad’s motion to compel 

arbitration.

FACTS AND PROCEDURAL HISTORY

Cycad hired Nunez as a gardener in 2018. It required him to sign 

the Agreement, which mandates arbitration of “all disputes between 

Employee and Company relating, in any manner whatsoever, to the 

employment or termination” of the employee. It encompasses wage, 

tort, statutory, discrimination, and contract claims. It limits discovery 

to “three depositions and an aggregate of thirty (30) discovery requests 

of any kind, including sub-parts.”

Nunez filed suit on August 27, 2019.1 Cycad answered the 

complaint and initiated discovery. In April 2020, Cycad’s attorney 

1 The complaint is not in our record. Cycad states that Nunez 

asserts claims for battery; assault; violation of the Ralph Civil Rights 

Act of 1976 (Civ. Code, § 51.7); violation of the Tom Bane Civil Rights 

Act (Civ. Code, § 52.1); failure to provide a safe workplace; violation of 

right to protection from bodily harm; violation of the Whistleblower 

Protection Act; violations of Labor Code sections 201–203, 1198.5, and 

6310; infliction of emotional distress; and wrongful termination in 

violation of public policy. Defendant Bassam Alghanim joined Cycad’s 

motion to arbitrate but did not appeal. Defendant Wennington 

Corporation, N.V. did not join the motion or file a notice of appeal.
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found the Agreement and demanded arbitration. Nunez rebuffed the 

demand, asserting that Cycad waived its right to arbitrate; that he did 

not sign the Agreement or signed without informed consent; and the 

Agreement is unconscionable.

Cycad filed a motion to stay the litigation and compel arbitration, 

asserting that the Agreement is enforceable, covers the dispute and is 

not unconscionable. It argued that it did not waive arbitration by 

answering the complaint or serving discovery requests.

In opposition, Nunez’s counsel declared that arbitration is “an 

unfair forum” for employees. Moreover, Cycad served discovery 

requests that far exceed the limit imposed in the Agreement. Cycad did 

not prove the existence of an arbitration agreement: The signature

page is separate from the rest of the Agreement, which was not 

authenticated. The Agreement is unconscionable because it is adhesive 

and is in a language (English) that Nunez cannot read.

Nunez declared that he is “a native Spanish speaker with limited 

spoken English skills and an even more limited ability to read and 

write in English.” He speaks only Spanish at home. Cycad presented 

him “with a bunch of documents to sign, rushed, while I was working, 

where I was told that the documents simply referred to a change of 

company.” Nunez had no opportunity to review the documents or idea 

they included a waiver of his right to sue his employer. He declared, “I 

could not understand the documents that were provided in English, as I 

could not read or understand English well enough to understand such 

documents, a fact that the Defendants were unquestionably aware of” 

because they used bilingual coworkers to translate work orders and 

requests for him and gave him language lessons with a tutor.

Nunez declared that the documents were forced on him by 

manager Dilip Rodrigo, whose assistant told Nunez in Spanish “that I 

should sign the documents, or my employment would be terminated.” 

Nunez did not receive a copy of the documents, “which could have 

allowed me to translate them at home” with the help of family 

members, and “[t]here was never a meeting where the concept and 

content of the documents, including the alleged arbitration agreement, 
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were explained to me in English or Spanish.” No one gave him the 

American Arbitration Association (AAA) rules, which govern the 

Agreement. He believed he “had no choice but to sign these documents 

in order to have and keep [his] job.”

In reply, Rodrigo declared that he handed Nunez an offer of 

employment that referred to the Agreement. He did not tell Nunez to 

sign the documents immediately or be terminated. Instead, he 

instructed Nunez to take the documents home. Nunez returned the 

signed employment offer and Agreement 12 days later, and never asked 

Rodrigo to explain any part of them. Rodrigo does not state that he 

gave Nunez a copy of the AAA rules and fee schedule.

Cycad cited Rodrigo’s declaration to prove Nunez was not rushed 

or forced to sign the Agreement without having a chance to understand 

its contents. The Agreement is not unconscionable because Nunez had 

time to seek translation of it into Spanish by his family or bilingual 

employees at Cycad.

The Court’s Ruling

The court issued a written ruling on July 6, 2020. It 

acknowledged a strong public policy favoring arbitration and found 

Cycad proved the existence of an arbitration agreement bearing 

Nunez’s signature agreeing to submit all disputes, claims, or 

controversies arising from his employment to arbitration. It rejected 

Nunez’s claim questioning his signature because it is on a separate 

page from the body of the Agreement.

The court determined that the Agreement is procedurally 

unconscionable because it “was presented to Plaintiff in a manner that 

renders it a contract of adhesion, oppression and surprise, especially 

due to unequal bargaining power.” Cycad drafted it and “no evidence 

suggests that employees could either reject or negotiate the terms of 

the provision,” which was “a condition of Plaintiff’s employment.” 

Further, “despite knowing Plaintiff was not proficient in English, 

Cycad did not explain the arbitration provision in Spanish or provide a 

Spanish-language copy of it,” which constitutes oppression and 

surprise. “Cycad failed to draw Plaintiff’s attention to the arbitration 
5

provision or explain its import” and “[t]here is inadequate evidence that 

Plaintiff was instructed to ask questions or seek assistance.”

The court found substantive unconscionability because the 

Agreement “unfairly assigns arbitration fees and costs to Plaintiff and 

imposes limitations on discovery.” It “does not limit the amount of 

arbitration fees or provide for waiver of fees” if they are unaffordable. 

Discovery limitations work to the advantage of employers, who possess 

most of the evidence, and curtail employees’ ability to substantiate 

claims.

The court concluded, “In light of the pervasiveness of the 

unconscionable provisions related to arbitration and the fact that the 

purported scope of the arbitration provisions exceeded the plaintiff’s 

reasonable expectations, there are no isolated provisions that can be 

severed and the arbitration provisions as a whole are unenforceable.”

The court denied the motion to compel arbitration.

DISCUSSION

1. Appeal and Review

“Arbitration is favored in this state as a voluntary means of 

resolving disputes, and this voluntariness has been its bedrock 

justification.” (Armendariz v. Foundation Health Psychcare Services, 

Inc. (2000) 24 Cal.4th 83, 115 (Armendariz).) Arbitration agreements 

are “valid, enforceable and irrevocable, save upon such grounds as exist 

for the revocation of any contract.” (Code Civ. Proc., § 1281.) The court 

may refuse to enforce an unconscionable contract. (Civ. Code, 

§ 1670.5.) The denial of a petition to arbitrate is appealable. (Code 

Civ. Proc., § 1294, subd. (a).)

“The unconscionability of an arbitration agreement is a question 

of law that we review de novo, applying general principles of California 

contract law to determine the agreement’s enforceability. (Carmona v. 

Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 82

[(Carmona)].) To the extent the trial court relied on contested facts in 

making its determination, we review the court’s factual determinations 

for substantial evidence. (Ibid.) We will only reverse a trial court’s 

refusal to sever any unconscionable portions upon a showing of abuse of 
6

discretion.” (Dougherty v. Roseville Heritage Partners (2020) 47 

Cal.App.5th 93, 102.)

2. Unconscionability

“Unconscionability analysis begins with an inquiry into whether 

the contract is one of adhesion. [Citation.] ‘The term [contract of 

adhesion] signifies 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.’ [Citation.] If the contract is adhesive, the court must then 

determine whether ‘other factors are present which, under established 

legal rules—legislative or judicial—operate to render it 

[unenforceable].’ ” (Armendariz, supra, 24 Cal.4th at p. 113.)

To declare an agreement unenforceable, a court must find both 

procedural and substantive unconscionability. Procedural 

unconscionability focuses on oppression or surprise due to unequal 

bargaining power; substantive unconscionability looks at overly harsh 

or one-sided results. (Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 

1237, 1243; AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 

340.)

a. Procedural Unconscionability

Cycad has superior bargaining power over gardeners who work 

for it. It drafted the Agreement and presented it to Nunez as a 

condition of employment, on a take it or leave it basis. Cycad concedes 

the Agreement is a contract of adhesion but claims there is “ ‘no other 

indication of oppression or surprise’ ” and Nunez had “ample time” to 

review the contract, ask questions, and have his family or Cycad 

translate it to Spanish.

By contrast, Nunez declares that he had no opportunity to review 

the Agreement, which was forced on him in a rush while he was 

working. He was told the English-language Agreement involved a 

change of company, not that it waived his right to a jury trial, and was

instructed to sign it or be fired. (Compare to Alvarez v. Altamed Health 

Services Corp. (2021) 60 Cal.App.5th 572, 591 [arbitration contract was 
7

mailed to plaintiff before she began employment with defendant, she 

had time to review it and did not claim inability to read English].)

The trial court resolved the facts against Cycad. When the court 

weighs conflicting declarations, we defer to its factual determinations; 

we have no authority to make new credibility findings. (Shamblin v. 

Brattain (1988) 44 Cal.3d 474, 479.)

The court found the Agreement “was presented to [Nunez] in a 

manner that renders it a contract of adhesion, oppression and 

surprise.” Circumstances showing oppression include (1) the amount of 

time an employee is given to consider a contract; (2) the pressure 

exerted on him to sign it; (3) its length and complexity; (4) his 

education and experience; and (5) whether he had legal assistance. 

(OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 126–127.) Significant 

oppression is shown when, as here, an arbitration agreement is 

presented to an employee while he is working, along with other 

documents, neither its contents nor its significance are explained, and 

the employee is told he must sign the agreement to keep his job. (Id. at 

p. 127.)

The court found it unconscionable that “despite knowing Plaintiff 

was not proficient in English, Cycad did not explain the arbitration 

provision in Spanish or provide a Spanish-language copy of it.” 

Procedural unconscionability arises when an arbitration agreement 

“was neither provided in a Spanish-language copy nor explained to 

respondents who did not understand written English.” (Penilla v. 

Westmont Corp. (2016) 3 Cal.App.5th 205, 209 (Penilla).)

It is undisputed that Nunez does not read English and Cycad did 

not provide a Spanish version of the Agreement. The Agreement is 

seven pages long and the AAA rules attached to the motion to compel 

are 41 single-spaced pages. It is untenable for Cycad to argue that 

Nunez’s family or a coworker could translate 48 pages of legalese into 

Spanish while Nunez listened to a translation that might not be 

correct, depending on the proficiency of the translator. (See Carmona, 

supra, 226 Cal.App.4th at p. 85 [arbitration clause was unconscionable 
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where it was not translated into Spanish for employees who did not 

read English].)

Rodrigo handed Nunez the Agreement without explaining its

import. It allows the arbitrator to award attorney fees to the prevailing 

party and to allocate between the parties the cost of filing, 

administrative, and arbitrator’s fees. The potential cost of the 

arbitration was an unknown surprise to Nunez because Cycad failed to 

provide the AAA fee schedule. Failure to provide documentation of 

arbitration fees supports a finding of unconscionability because it 

causes surprise. (Penilla, supra, 3 Cal.App.5th at p. 217.)

Cycad’s failure to provide a Spanish version of the Agreement or 

a fee schedule shows oppression and surprise amounting to procedural 

unconscionability. Cycad insists that Nunez was not rushed into 

signing the Agreement or face termination, but the court did not 

believe Cycad’s claim.

b. Substantive Unconscionability

Substantive unconscionability examines the fairness of a 

contract’s terms to ensure that a contract of adhesion does not impose 

terms that are overly harsh, unduly oppressive, or unfairly one-sided. 

(OTO, L.L.C. v. Kho, supra, 8 Cal.5th at pp. 129–130.) The court

focuses on terms that unreasonably favor the more powerful party, 

impair the integrity of the bargaining process, contravene public 

interest or policy, or attempt to impermissibly alter fundamental legal 

duties. This includes unreasonable or harsh terms or ones that 

undermine the nondrafting party’s reasonable expectations. (Id. at p. 

130.) Where there is substantial procedural unconscionability, “even a 

relatively low degree of substantive unconscionability may suffice to 

render the agreement unenforceable.” (Ibid.) This is particularly true 

if an employer used “deceptive or coercive” tactics. (Id. at pp. 125–126.)

Substantive aspects of the Agreement militate against 

enforcement, when combined with unfair and deceptive tactics of giving 

Nunez an English contract and misrepresenting its contents.

The Agreement enables the arbitrator to impose on Nunez all 

attorney fees plus filing, administrative, and arbitrator’s fees. When
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employment is conditioned on mandatory arbitration, the employee

cannot be forced to pay costs that would not be incurred if the case were 

litigated in court. (Armendariz, supra, 24 Cal.4th at pp. 110–111.) 

Absent the Agreement, Nunez could litigate without the prospect of 

paying Cycad’s attorney fees.

Nunez alleges violations of civil rights laws. (See fn. 1, ante.) 

They confer unwaivable statutory rights and prohibit an arbitrator’s

imposition of attorney fees and costs because it would deter the filing of 

hate crimes claims. (D.C. v. Harvard-Westlake School (2009) 176 

Cal.App.4th 836, 839.) By empowering the arbitrator to impose

arbitration and attorney fees on the losing party, the Agreement

violates Armendariz. (Wherry v. Award, Inc. (2011) 192 Cal.App.4th 

1242, 1248–1249 (Wherry).)

The Agreement limits discovery to “three depositions and an 

aggregate of thirty (30) discovery requests of any kind, including subparts.” This places an employee “at a disadvantage in proving her 

claim while [the employer] is likely to possess many of the relevant 

documents and employ many of the relevant witnesses,” unfairly 

preventing Nunez from vindicating statutory claims. (Fitz v. NCR 

Corp. (2004) 118 Cal.App.4th 702, 717; Kinney v. United Healthcare 

Servs. (1999) 70 Cal.App.4th 1322, 1332 [because an employer “is 

presumably in possession of the vast majority of evidence that would be 

relevant to employment-related claims against it, the limitations on 

discovery, although equally applicable to both parties, work to curtail 

the employee’s ability to substantiate any claim”]; De Leon v. Pinnacle 

Property Management Services, LLC (2021) 72 Cal.App.5th 476, 487–

488 [arbitration provision in employment contract limiting parties to 20 

interrogatories and three depositions was unfair to employee].)

3. Severability

A court may sever unconscionable provisions and enforce the 

remainder of the agreement, or it may “refuse to enforce the contract.” 

(Civ. Code, § 1670.5, subd. (a).) The interests of justice govern

severance. (Armendariz, supra, 24 Cal.4th at p. 124.) “[M]ultiple 

defects indicate a systematic effort to impose arbitration on [a weaker 
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party] . . . as an inferior forum that works to [the stronger party’s] 

advantage.” (Ibid.)

Cycad presented Nunez with an arbitration agreement in a 

language he cannot read, misrepresented the nature of the document, 

denied him an opportunity to review it, included unfair and onerous 

provisions limiting discovery, and chilled his ability to claim civil rights 

violations by dangling the financial risk of paying Cycad’s attorney fees 

if he loses.

Though public policy generally favors arbitration, “when the 

agreement is rife with unconscionability, as here, the overriding policy 

requires that the arbitration be rejected (Armendariz, supra, 24 Cal.4th 

at p. 127).” (Wherry, supra, 192 Cal.App.4th at p. 1250.) Eliminating 

unfair clauses in the Agreement cannot save it: Nunez never knew 

what he signed in the first place, having done so under compulsion, 

threatened with termination if he failed to sign a document in a foreign 

language on the spot. The Agreement is not a voluntary means of 

resolving disputes between the parties. (Armendariz, at p. 115.)

Accordingly, we decline Cycad’s invitation to remand the case for

reconsideration due to “changed circumstances.”2

2 Given our conclusion that the Agreement is unconscionable, we 

do not reach Nunez’s contentions that it is not properly authenticated, 

lacks mutual consent, or that third party defendants did not sign it and 

Cycad waived arbitration by failing to promptly invoke it. The trial 

court made no factual findings on these issues.
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DISPOSITION

The order denying appellant’s motion to compel arbitration is 

affirmed. Appellant to bear all costs on appeal.

NOT TO BE PUBLISHED.

LUI, P. J.

We concur:

ASHMANN-GERST, J.

CHAVEZ, J.