Filed 3/12/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

GERALD LANGE,

Plaintiff and Respondent,

v.

MONSTER ENERGY 

COMPANY,

Defendant and Appellant.

 B294091

 (Los Angeles County

 Super. Ct. No. BC697115)

APPEAL from an order of the Superior Court of Los 

Angeles County, Teresa A. Beaudet, Judge. Affirmed.

Shook, Hardy & Bacon, Frank C. Rothrock, Laura M. 

Booth, and Victoria P. McLaughlin for Defendant and Appellant.

Berenji Law Firm, Shadie L. Berenji, and Brittanee A. 

Marksbury for Plaintiff and Respondent.

____________________________
2

Monster Energy Company appeals from a trial court order 

denying its motion to compel arbitration. The trial court 

concluded that the parties’ arbitration agreement was so 

permeated with unconscionability that it could not remove the 

unconscionability merely by severing. The trial court based that 

conclusion on two independent grounds: that the existence of 

more than one unconscionable provision in the arbitration 

agreement precluded severance, and that merely severing 

provisions would not eliminate the unconscionability. We 

disagree with the trial court’s conclusion that the existence of 

more than one unconscionable provision precludes severance. 

But Monster did not address the trial court’s alternative basis for 

its order. We have undertaken an independent unconscionability 

analysis and we reach the same conclusion the trial court

reached. We affirm.

BACKGROUND

Monster hired Gerald Lange as a Monster Ambassador in 

October 2006. When he was hired, Lange signed an employment 

agreement that contained the following arbitration clause:

“4. Arbitration of Disputes/Litigation

“4.1 Any controversy or claim arising out of or 

relating to this Agreement or the breach thereof or any 

agreement entered into between the Company and you or 

otherwise arising out of your employment or the termination of 

that employment (including without implication of limitation any 

claims of unlawful employment discrimination whether based on 

age or otherwise) defamation, invasion of privacy, infliction of 

emotional distress, unlawful harassment, including similar 

claims such as, without limitation, claims arising under the 

California Fair Employment and Housing Act [(FEHA)], the 
3

Americans with Disabilities Act, Title VII of the Civil Rights Act 

of 1964, the Age Discrimination in Employment Act, the 

California Labor Code and Equal Pay Act, the Rehabilitation Act 

of 1974, the Employee Retirement Income and Security Act and 

any and all other contractual, tort, legal, equitable and statutory 

claims that may be lawfully submitted to arbitration, either by or 

against the Company shall, to the fullest extent permitted by 

law, be settled by binding arbitration conducted by 

JAMs/Endispute (‘JAMS’) in accordance with JAMS 

Comprehensive Arbitration Rules and Procedures (the ‘Rules’) 

applicable to employment disputes, in Orange County, California. 

Except as expressly allowed by the Statutory Claims as defined 

below, the arbitrator shall have no authority to award punitive or 

exemplary damages or any other amount for the purpose of 

imposing a penalty. Judgment upon the award rendered by the 

arbitrator may be entered in any court having jurisdiction.

“4.2 For any claims brought under [FEHA], Title 

VII of the Civil Rights Act of 1964, or any other local, state or 

federal statu[t]es (‘Statutory Claims’) (a) the substantive and 

remedial provisions applicable to the Statutory Claims shall be 

available to any party required to arbitrate Statutory Claims 

under this Agreement; (b) if the Rules do not already provide, 

either party submitting a Statutory Claim to arbitration shall be 

entitled to the full range of discovery provided under California 

Code of Civil Procedure section 1283.05; (c) you shall not be 

required to pay unreasonable costs or any of the arbitrator’s fees 

or expenses; and (d) the arbitrator must also issue a written 

award setting forth the essential findings and conclusions on 

which the award is based.
4

“4.3 Notwithstanding the forgoing, these provisions 

shall not preclude either party from pursuing a court action for 

the sole purpose of obtaining a temporary restraining order or a 

preliminary injunction in circumstances in which such relief is 

appropriate, provided that any other relief shall be pursued 

through an arbitration proceeding pursuant to this Agreement.

“4.4 Without in any way detracting from the intent 

and obligation of the Company and you to arbitrate all disputes 

and controversies between them in accordance with the above 

provisions, in the event that any controversy or claim is 

determined in a court of law, both you and the Company hereby 

irrevocably waive any and all rights to trial by jury in any legal 

proceeding arising out of or relating to this Agreement, the 

breach thereof or the employee’s employment or other business 

relationship. Except as otherwise required by law, both you and 

the Company hereby specifically waive any claims for punitive or 

exemplary damages or for any other amounts awarded for the 

purposes of imposing a penalty.

“MAKE SURE THAT YOU HAVE READ AND UNDERSTAND 

THE FOREGOING. YOU AGREE TO WAIVE THE RIGHT TO 

A JURY AND TO SUBMIT DISPUTES ARISING OUT OF OR 

RELATED TO THIS AGREEMENT OR YOUR EMPLOYMENT 

TO NEUTRAL, BINDING ARBITRATION.” 

Lange initialed in a designated space next to the last 

paragraph. 

The employment agreement’s paragraph 3 provided that 

“all the terms and conditions contained in the Employee 

Proprietary Information, Confidentiality, Intellectual Property 

and Non-Solicitation Agreement [(PIA)] attached [to the 
5

employment agreement] are incorporated herein . . . .” The PIA 

contained the following clause:

“14. Equitable Remedies. Employee acknowledges that 

irreparable injury will result to Company from Employee’s 

violation of any of the terms of this Agreement. Employee 

expressly agrees that Company shall be entitled, in addition to 

damages and any other remedies provided by law, to an 

injunction or other equitable remedy respecting such violation or 

continued violation, without the necessity of a bond or similar 

undertaking. Employee agrees to submit himself or herself to the 

jurisdiction of the Courts of the State of California, County of San 

Diego, in any proceeding to enforce the terms of this Agreement.” 

On November 14, 2017, Monster terminated Lange. 

On March 7, 2018, Lange sued Monster alleging causes of 

action for disability discrimination under FEHA, failure to 

engage in the interactive process, failure to provide reasonable 

accommodations, failure to prevent discrimination, and wrongful 

termination in violation of public policy. In response, Monster 

filed a motion to compel arbitration. The trial court heard 

argument on Monster’s motion on July 11, 2018. At the July 11 

hearing, the trial court requested supplemental briefing from the 

parties on two issues, one of which was “whether the problematic 

aspects of the arbitration agreement (punitive damages, costs, 

and the Proprietary Information Agreement) can or should be 

severed.” The trial court again heard argument on November 7, 

2018 and denied Monster’s motion to compel arbitration.

In its order denying the motion to compel arbitration, the 

trial court concluded that the arbitration agreement contained a 

low level of procedural unconscionability. The trial court 

concluded that the arbitration agreement’s provision “requiring 
6

[Lange] to waive punitive damages as a remedy for all 

nonstatutory claims” was substantively unconscionable. The 

trial court also concluded that the PIA’s “Equitable Remedies” 

section made the arbitration agreement one that “carves out 

claims arising out of a confidentiality agreement,” and that such 

an agreement “can be considered substantively unconscionable.” 

The trial court concluded that the unconscionable 

provisions could not be severed from the parties’ contract. The 

trial court wrote: “Finally, with regard to the severability of any 

of the above provisions, [Lange] contends that the [employment] 

agreement is so permeated with unconscionability that 

severability would not be appropriate. The [trial court] finds that 

there are two terms that are substantively unconscionable. The 

first is the provision requiring [Lange] to waive punitive damages 

as a remedy for all nonstatutory claims; the second is the 

provision excepting from arbitration claims to enforce the [PIA].

“Severance is inappropriate when the arbitration 

agreement contains ‘more than one unlawful provision’ and when 

‘there is no single provision a court can strike or restrict in order 

to remove the unconscionable taint from the agreement.’ 

[Citation.] In the instant case, there is more than one unlawful 

provision. . . .

“In light of the existence of two substantively 

unconscionable provisions and the inability to address the [PIA] 

issues by simply carving out a clause (i.e., paragraph 3 of the 

letter agreement is separate from the arbitration provision in 

paragraph 4 of the letter agreement, and the parties did 

separately enter into that agreement, thereby precluding a 

carveout that would purportedly eliminate the unconscionability), 
7

the [trial court] finds that the arbitration agreement is 

permeated with a high degree of substantive unconscionability.” 

Monster filed a timely notice of appeal. 

DISCUSSION

“California law . . . favors enforcement of valid arbitration 

agreements.” (Armendariz v. Foundation Health Psychcare 

Services, Inc. (2000) 24 Cal.4th 83, 97 (Armendariz).) “[U]nder 

California law . . . , an arbitration agreement may only be 

invalidated for the same reasons as other contracts.” (Id. at p. 

98; Code Civ. Proc., § 1281.) Unconscionability in a contract is 

one reason a court may decline enforcement. (See Farrar v. 

Direct Commerce, Inc. (2017) 9 Cal.App.5th 1257, 1265 (Farrar).)

“The rules governing the role of the court in interpreting a 

written instrument are well established. The interpretation of a 

contract is a judicial function. [Citation.] In engaging in this 

function, the trial court ‘give[s] effect to the mutual intention of 

the parties as it existed’ at the time the contract was executed. 

[Citation.] Ordinarily, the objective intent of the contracting 

parties is a legal question determined solely by reference to the 

contract’s terms.” (Wolf v. Walt Disney Pictures & Television 

(2008) 162 Cal.App.4th 1107, 1125-1126.) “When the contract 

has been ‘reduced to writing,’ the parties’ intention ‘is to be 

ascertained from the writing alone, if possible,’ subject to other 

rules of interpretation.” (Rodriguez v. Oto (2013) 212 Cal.App.4th 

1020, 1028.)

A. Unconscionability

“Unconscionability is ultimately a question of law, which 

we review de novo when no meaningful factual disputes exist as 

to the evidence.” (Chin v. Advanced Fresh Concepts Franchise 

Corp. (2011) 194 Cal.App.4th 704, 708; Pinnacle Museum Tower 
8

Assn. v. Pinnacle Market Development (US), LLC (2012) 55 

Cal.4th 223, 236.)

“ ‘[U]nconscionability has both a “procedural” and a 

“substantive” element,’ the former focusing on ‘ “oppression” ’ or 

‘ “surprise” ’ due to unequal bargaining power, the latter on 

‘ “overly harsh” ’ or ‘ “one-sided” ’ results. [Citation.] ‘The 

prevailing view is that [procedural and substantive 

unconscionability] must both be present in order for a court to 

exercise its discretion to refuse to enforce a contract or clause 

under the doctrine of unconscionability.’ [Citation.] But they 

need not be present in the same degree. ‘Essentially a sliding 

scale is invoked which disregards the regularity of the procedural 

process of the contract formation, that creates the terms, in 

proportion to the greater harshness or unreasonableness of the 

substantive terms themselves.’ [Citations.] In other words, the 

more substantively oppressive the contract term, the less 

evidence of procedural unconscionability is required to come to 

the conclusion that the term is unenforceable, and vice versa.” 

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

1. Procedural Unconscionability

“ ‘[A] finding of procedural unconscionability does not mean 

that a contract will not be enforced, but rather that courts will 

scrutinize the substantive terms of the contract to ensure they 

are not manifestly unfair or one-sided. [Citation.] . . . [T]here are 

degrees of procedural unconscionability. At one end of the 

spectrum are contracts that have been freely negotiated by 

roughly equal parties, in which there is no procedural 

unconscionability. . . . Contracts of adhesion that involve 

surprise or other sharp practices lie on the other end of the 

spectrum. [Citation.] Ordinary contracts of adhesion, although 
9

they are indispensable facts of modern life that are generally 

enforced [citation], contain a degree of procedural 

unconscionability even without any notable surprises, and “bear 

within them the clear danger of oppression and overreaching.” ’ ” 

(Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1244

(Baltazar).)

The trial court concluded that the arbitration agreement, 

which was contained in an offer letter from Monster to Lange 

that became Lange’s employment agreement with his signature, 

represented a low level of procedural unconscionability. Lange 

raised the same contentions in the trial court as here. He 

contends here that the agreement represents a moderate (rather 

than low) level of procedural unconscionability for the three 

reasons he restates from his trial court arguments: (1) the 

arbitration agreement is an adhesion contract; (2) the arbitration 

agreement was inconspicuous; and (3) Monster failed to attach or 

otherwise include the governing arbitration rules.

We reach the same conclusion the trial court reached. The 

arbitration agreement constitutes a little more than a third of the 

entire three and a quarter page employment agreement. It is an 

adhesive contract, as are most employment agreements; “few 

employees are in a position to refuse a job because of an 

arbitration agreement.” (Armendariz, supra, 24 Cal.4th at p. 

115.) But the arbitration agreement was conspicuous. 

Arbitration commanded a more significant amount of space in the 

short employment agreement than did any other subject. And 

Lange placed his initials at the end of a double-spaced, all 

capital-letter paragraph that stated: “MAKE SURE THAT YOU 

HAVE READ AND UNDERSTAND THE FOREGOING. YOU 

AGREE TO WAIVE THE RIGHT TO A JURY AND TO SUBMIT 
10

DISPUTES ARISING OUT OF OR RELATED TO THIS 

AGREEMENT OR YOUR EMPLOYMENT TO NEUTRAL, 

BINDING ARBITRATION.” 

Lange has also failed to persuade us that the agreement is 

made more procedurally unconscionable by Monster’s failure to 

attach the “JAMS Comprehensive Arbitration Rules and 

Procedures” referenced in the arbitration agreement. Addressing 

a very similar argument, the Supreme Court in Baltazar said, 

“Baltazar’s argument . . . might have force if her 

unconscionability challenge concerned some element of the . . . 

rules of which she had been unaware when she signed the 

arbitration agreement. But her challenge to the enforcement of 

the agreement has nothing to do with the . . . rules; her challenge 

concerns only matters that were clearly delineated in the 

agreement she signed. Forever 21’s failure to attach the . . . rules 

therefore does not affect our consideration of Baltazar’s claims of 

substantive unconscionability.” (Baltazar, supra, 62 Cal.4th at p. 

1246.) While Lange’s arguments in the trial court discussed

JAMS rules that he contended were substantively 

unconscionable, those contentions were not briefed here. Because 

none of Lange’s substantive unconscionability arguments here 

has anything to do with the JAMS rules applicable to the parties’ 

dispute, we agree that Monster’s failure to attach those rules 

does not bear on the arbitration agreement’s procedural 

unconscionability.

Lange cannot reasonably argue that he was surprised by 

the existence of an arbitration agreement or its terms. Monster 

made no attempt to hide the arbitration agreement, and Lange 

indicated with his initials that he had read and understood the 

arbitration agreement. The agreement was adhesive, but 
11

represents no surprise and no more than the low level of 

procedural unconscionability contained in any employment 

agreement for an employee not in a “position to refuse a job 

because of an arbitration agreement.” (Armendariz, supra, 24 

Cal.4th at p. 115.)

2. Substantive Unconscionability

While procedural unconscionability “addresses the 

circumstances of contract negotiation and formation, focusing on 

oppression and surprise due to unequal bargaining power,” 

substantive unconscionability “pertains to the fairness of the 

agreement’s actual terms.” (Von Nothdurft v. Steck (2014) 227 

Cal.App.4th 524, 535.) “Cases have talked [of substantive 

unconscionability] in terms of ‘overly harsh’ or ‘one-sided’ results. 

[Citations.] One commentator has pointed out, however, that ‘. . . 

unconscionability turns not only on a “one-sided” result, but also 

on an absence of “justification” for it[ ]’ [citation], which is only to 

say that substantive unconscionability must be evaluated as of 

the time the contract was made. [Citation.] The most detailed 

and specific commentaries observe that a contract is largely an 

allocation of risks between the parties, and therefore that a 

contractual term is substantively suspect if it reallocates the 

risks of the bargain in an objectively unreasonable or unexpected 

manner.” (A & M Produce Co. v. FMC Corp. (1982) 135 

Cal.App.3d 473, 487.)

Our Supreme Court considered substantive 

unconscionability in detail in Sonic-Calabasas A, Inc. v. Moreno 

(2013) 57 Cal.4th 1109, 1145. “The unconscionability doctrine 

ensures that contracts, particularly contracts of adhesion, do not 

impose terms that have been variously described as ‘ “ ‘overly 

harsh’ ” ’ [citation], ‘ “unduly oppressive” ’ [citation], ‘ “so one-
12

sided as to ‘shock the conscience’ ” ’ [citation], or ‘unfairly onesided’ [citation]. All of these formulations point to the central 

idea that unconscionability doctrine is concerned not with ‘a 

simple old-fashioned bad bargain’ [citation], but with terms that 

are ‘unreasonably favorable to the more powerful party’ [citation]. 

These include ‘terms that impair the integrity of the bargaining 

process or otherwise contravene the public interest or public 

policy; terms (usually of an adhesion or boilerplate nature) that 

attempt to alter in an impermissible manner fundamental duties 

otherwise imposed by the law, fine-print terms, or provisions that 

seek to negate the reasonable expectations of the nondrafting 

party, or unreasonably and unexpectedly harsh terms having to 

do with price or other central aspects of the transaction.’ 

[Citation.]” (Ibid.; also Sanchez v. Valencia Holding Co., LLC 

(2015) 61 Cal.4th 899, 910-911.)

Lange contends that the arbitration agreement is 

substantively unconscionable in five ways. We address them in 

turn.

a. Punitive Damages Waiver

The arbitration agreement states: “Except as expressly 

allowed by the Statutory Claims as defined below, the arbitrator 

shall have no authority to award punitive or exemplary damages 

or any other amount for the purpose of imposing a penalty.” In 

another section—facially applicable only “in the event that any 

controversy or claim is determined in a court of law”—the 

agreement provides: “Except as otherwise required by law, both 

you and the Company hereby specifically waive any claims for 

punitive or exemplary damages or for any other amounts 

awarded for the purposes of imposing a penalty.” Lange 
13

contends—and the trial court agreed—that the agreement’s 

punitive damages waiver is substantively unconscionable.

As the trial court explained, “the provision requiring 

[Lange] to waive punitive damages as a remedy for all 

nonstatutory claims is substantively unconscionable” because an 

employee “seeking to arbitrate a Tameny claim should have the 

benefit of . . . ‘the availability of damages remedies equal to those 

available in a Tameny suit brought in court, including punitive 

damages . . . .”1 (Quoting Little v. Auto Stiegler, Inc., supra, 29 

Cal.4th at p. 1081.) The waiver of punitive damages as a remedy 

for all nonstatutory claims, then, is substantively unconscionable 

regardless of its mutuality.2

b. PIA Equitable Remedies Clause

Three of Lange’s substantive unconscionability arguments 

stem from the Equitable Remedies Clause in the PIA. The 

employment agreement’s paragraph 3 incorporates “all the terms 

1 “In Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 

178 . . . , [the Supreme Court] recognized that although 

employers have the power to terminate employees at will, they 

may not terminate an employee for a reason that is contrary to 

public policy.” (Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 

1064, 1076.) A Tameny claim is a nonstatutory claim for 

wrongful termination in violation of public policy.

2 Monster contends that the words “[e]xcept as otherwise 

required by law” in the second punitive damages waiver—the one 

implicated only “in the event that any controversy or claim is 

determined in a court of law,” saves the first punitive damages 

waiver from an unconscionability finding. Monster has not 

forcefully asserted the argument here, and we do not analyze it 

other than to say the argument is not supported by the 

contractual language.
14

and conditions contained in the” PIA into the employment 

agreement. The PIA’s Equitable Remedies clause states: 

“Employee acknowledges that irreparable injury will result to 

Company from Employee’s violation of any of the terms of this 

Agreement. Employee expressly agrees that Company shall be 

entitled, in addition to damages and any other remedies provided 

by law, to an injunction or other equitable remedy respecting 

such violation or continued violation, without the necessity of a 

bond or similar undertaking. Employee agrees to submit himself 

or herself to the jurisdiction of the Courts of the State of 

California, County of San Diego, in any proceeding to enforce the 

terms of this Agreement.” Lange asserts that the entire provision 

constitutes an unconscionable one-sided carveout, that the waiver 

of a showing of irreparable injury is unconscionable, and that the 

waiver of an injunction bond or undertaking is unconscionable.

i. One-Sided Carveout

Lange first contends that the Equitable Remedies clause 

constitutes a one-sided carveout provision that renders the 

arbitration agreement essentially illusory as to Monster. 

Monster counters that incorporation of the PIA into the 

employment agreement subjects the PIA to the arbitration 

agreement.

“Several contracts relating to the same matters, between 

the same parties, and made as parts of substantially one 

transaction, are to be taken together.” (Civ. Code, § 1642.) The 

PIA contains no arbitration provision. The arbitration 

agreement, on the other hand, does provide in paragraph 4.3 for 

“a court action for the sole purpose of obtaining a temporary 

restraining order or a preliminary injunction in circumstances in 

which such relief is appropriate, provided that any other relief 
15

shall be pursued through an arbitration proceeding pursuant to 

this Agreement.” The two equitable remedies clauses—the 

arbitration agreement’s paragraph 4.3 and the PIA’s Equitable 

Remedies clause—are not mutually exclusive. Nor is the 

arbitration agreement’s equitable remedies provision one-sided; it 

expressly allows “either party” to seek a temporary restraining 

order or preliminary injunction in court “in circumstances in

which such relief is appropriate.” The PIA’s Equitable Remedies 

clause does no more than express a set of circumstances under 

which equitable relief may be appropriate and create procedural 

delimitations applicable exclusively in those circumstances.

On its face, the PIA’s Equitable Remedies clause does not 

apply broadly to every dispute the parties may encounter, nor 

does it modify the terms of the employment agreement or its 

arbitration agreement. It applies only internally to the PIA, and 

even then its entire function is to define rights and 

responsibilities between the parties should they litigate issues 

covered by the PIA.

While the PIA’s Equitable Remedies clause lacks 

mutuality, the “reasonable justification for this lack of mutuality” 

is evident on the face of the PIA. The PIA was created for the 

purpose of protecting Monster’s “confidential and proprietary 

information.” In the PIA, Lange acknowledged that Monster 

“enjoys a competitive advantage as a result of its compilation, 

possession[,] and use of the Proprietary Information, and that 

[Monster] would suffer competitive harm if the Proprietary 

Information became known to others outside the Company.”

In Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519, 

1536, the court explained that “a contract can provide a ‘margin 

of safety’ that provides the party with superior bargaining 
16

strength a type of extra protection for which it has a legitimate 

commercial need without being unconscionable.” In its entirety, 

the PIA is a “margin of safety” for Monster against the possibility 

that employees will purloin proprietary information and use it 

against the company. That the PIA contains an equitable 

remedies provision does not release the PIA from the force of the 

parties’ arbitration agreement. And that the PIA’s equitable 

remedies provision is not inconsistent with the employment 

agreement’s equitable remedies provision reinforces that the two 

may be read in harmony. 

Lange also asserts that the Equitable Remedies clause’s 

reference to damages renders it unconscionable; Lange reads the 

clause to allow Monster damages where Lange would not be so 

entitled. We disagree with Lange’s interpretation. The sentence 

Lange challenges states: “Employee expressly agrees that 

Company shall be entitled, in addition to damages and any other 

remedies provided by law, to an injunction or other equitable 

remedy respecting such violation or continued violation, without 

the necessity of a bond or similar undertaking.” We address the 

remainder of the sentence below, but note that the reference to 

“damages” in the Equitable Remedies clause is a general 

reference to other remedies to which Monster may be entitled, 

and not an investiture of remedies not otherwise available. In 

context, the clause’s reference to damages does not itself create 

unconscionability.

We will not find the PIA’s Equitable Remedies clause 

substantively unconscionable based on a lack of mutuality; the 

PIA is itself a “margin of safety” for which Monster has a 

legitimate commercial need. (See Stirlen, supra, 15 Cal.App.4th 
17

at p. 1536.) The clause is, however, unconscionable for other 

reasons we discuss below.

ii. Waiver of Injunction Bond & Assumption 

of Irreparable Injury

Lange contends that injunctive relief provisions that waive 

a bond and waive the requirement that a party show irreparable 

harm are substantively unconscionable. Monster argues that 

these are merely provisions which provide Monster with a

commercially justifiable “margin of safety.” We agree with 

Lange. 

“An arbitration provision lacks mutuality and is 

substantively unconscionable when it authorizes the stronger 

party to obtain injunctive relief without establishing all of the 

essential elements for the issuance of an injunction.” (Carbajal v. 

CWPSC, Inc. (2016) 245 Cal.App.4th 227, 250.) As we have 

explained, the PIA is, in its entirety, a “margin of safety” for 

Monster, and for which it has a legitimate commercial need. But 

Monster has articulated—and we can discern—no legitimate 

commercial need for the specific provisions in the PIA granting it 

predispute relief from having to “establish[ ] all of the essential 

elements for the issuance of an injunction.” (Ibid.)

c. Jury Trial Waiver

The parties’ arbitration agreement contains the following 

language in paragraph 4.4: “Without in any way detracting from 

the intent and obligation of the Company and you to arbitrate all 

disputes and controversies between them in accordance with the 

above provisions, in the event that any controversy or claim is 

determined in a court of law, both you and the Company hereby 

irrevocably waive any and all rights to trial by jury in any legal 

proceeding arising out of or relating to this Agreement, the 
18

breach thereof or the employee’s employment or other business 

relationship. Except as otherwise required by law, both you and 

the Company hereby specifically waive any claims for punitive or 

exemplary damages or for any other amounts awarded for the 

purposes of imposing a penalty.” Lange put his initials next to 

the next paragraph, which states in part in all capital letters, 

“YOU AGREE TO WAIVE THE RIGHT TO A JURY AND TO 

SUBMIT DISPUTES ARISING OUT OF OR RELATED TO THIS 

AGREEMENT OR YOUR EMPLOYMENT TO NEUTRAL, 

BINDING ARBITRATION.”

Lange contends that the agreement’s jury trial waiver is 

substantively unconscionable. Monster responds that the jury 

waiver was an inherent component of the parties’ agreement to 

resolve disputes through arbitration and is, therefore, not 

unconscionable. 

Lange and Monster are not arguing about the same jury 

trial waiver. While Monster refers to a jury trial waiver inherent 

in arbitration agreements, Lange’s argument is focused on the 

jury trial waiver preceded by the words “in the event that any 

controversy or claim is determined in a court of law.” And that 

jury trial waiver is not susceptible to any interpretation other 

than as an unconscionable predispute jury trial waiver. (See 

Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 961.)

B. Severance of Unconscionable Provisions

As the trial court did, we have found substantive 

unconscionability in the parties’ arbitration agreement and 

related provisions. 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 
19

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.”3 

The Supreme Court has interpreted this provision to mean that if 

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.” (Gentry v. Superior 

Court (2007) 42 Cal.4th 443, 472-473, abrogated on other grounds 

as recognized in Iskanian v. CLS Transportation Los Angeles, 

LLC (2014) 59 Cal.4th 348, 360.) “[T]he strong legislative and 

judicial preference is to sever the offending term and enforce the 

balance of the agreement: Although ‘the statute appears to give a 

trial court 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 latter 

course only when an agreement is “permeated” by 

unconscionability.’ ” (Roman v. Superior Court (2009) 172 

Cal.App.4th 1462, 1477-1478, quoting Armendariz, supra, 24 

Cal.4th at p. 122; Dotson v. Amgen, Inc. (2010) 181 Cal.App.4th 

975, 986.)

3 The Legislative Committee Comments to Civil Code 

section 1670.5 state: “Under this section the court, in its 

discretion, may refuse to enforce the contract as a whole if it is 

permeated by the unconscionability, or it may strike any single 

clause or group of clauses which are so tainted or which are 

contrary to the essential purpose of the agreement, or it may 

simply limit unconscionable clauses so as to avoid unconscionable 

results.” (Legis. Com., com. on Assem. Bill No. 510 (1979-1980 

Reg. Sess.) reprinted at 8 West’s Ann. Civ. Code (2011 ed.) foll. § 

1670.5, p. 75, italics added.)
20

We review a trial court’s order declining to sever the 

unconscionable provisions from an arbitration agreement for 

abuse of discretion. (See Armendariz, supra, 24 Cal.4th at p. 

124.) “All exercises of discretion must be guided by applicable 

legal principles, however, which are derived from the statute 

under which discretion is conferred. [Citation.] If the court’s 

decision is influenced by an erroneous understanding of 

applicable law or reflects an unawareness of the full scope of its 

discretion, the court has not properly exercised its discretion 

under the law. [Citation.] Therefore, a discretionary order based 

on an application of improper criteria or incorrect legal 

assumptions is not an exercise of informed discretion and is 

subject to reversal.” (Farmers Ins. Exchange v. Superior Court

(2013) 218 Cal.App.4th 96, 106.)

The major premise of Monster’s primary contention on 

appeal is that the trial court concluded that because the parties’ 

agreement contains more than a single unconscionable provision, 

it had no discretion to sever those provisions. Monster argues 

that this is an incorrect legal standard the trial court relied on to 

reach its discretionary determination that the parties’ arbitration 

agreement was permeated by unconscionability.

Citing Farrar, the trial court here stated that “[s]everance 

is inappropriate when the arbitration agreement contains ‘more 

than one unlawful provision’ and when ‘there is no single 

provision a court can strike or restrict in order to remove the 

unconscionable taint from the agreement.’ ” The trial court’s 

statements at the July 11, 2018 hearing on Monster’s motion 

further clarify its understanding. The trial court said, “the court 

did address the notion of severance, but unfortunately you’ve got 

more than one problem here. And under the current 
21

interpretations, we’re not really allowed to start reforming the 

whole document when it requires more than one change.” (Italics 

added.) Later at that same hearing, the trial court said, “you 

know, the way I came out in the end on the [unconscionability of 

the PIA clause], if this was the only problem, I think we could 

sever it based on the arguments you made . . . . But, like I said 

before, the problem is you’ve got too many items to sever here.” 

No authority supports the trial court’s conclusion that any 

more than a single unconscionable provision in an arbitration 

agreement precludes severance.4 “An arbitration agreement can

be considered permeated by unconscionability if it ‘contains more 

than one unlawful provision . . . .’ ” (Trivedi v. Curexo Technology 

Corp. (2010) 189 Cal.App.4th 387, 398, italics added, disapproved 

of on other grounds by Baltazar, supra, 62 Cal.4th at p. 1248.) 

That is because multiple unconscionable clauses serve as 

evidence of “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.) But the presence of 

multiple unconscionable clauses is merely one factor in the trial 

court’s inquiry; it is not dispositive. (See ibid.) That an 

agreement can be considered permeated by unconscionability if it 

4 Farrar does not support the proposition for which the trial 

court cited it. In Farrar, the court concluded that a single 

provision was unconscionable and it could be severed. There 

were not multiple unconscionable provisions at issue, and the 

court did not conclude that more than a single unconscionable 

provision would preclude severability. (Farrar, supra, 9 

Cal.App.5th at pp. 1274-1275.)
22

contains more than one unlawful provision does not compel the 

conclusion that it must be so.5

Armendariz outlines the contours of the trial court’s 

inquiry. “Courts are to look to the various purposes of the 

contract,” the Supreme Court said. (Armendariz, supra, 24 

Cal.4th at p. 124.) “If the central 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 severance or restriction, then such 

severance and restriction are appropriate.” (Ibid.)

We agree with the trial court’s conclusion that it is not 

allowed to “start reforming the whole document . . . .” But the 

trial court is not empowered to reform the parties’ contract 

anyway (except under limited circumstances not present here). 

(Armendariz, supra, 24 Cal.4th at p. 125; Kolani v. Gluska (1998) 

64 Cal.App.4th 402, 407-408.) Armendariz focused on whether 

the trial court could “strike or restrict” unconscionable provisions 

to “remove the unconscionable taint from the agreement.” 

(Armendariz, at pp. 124-125.) The Supreme Court concluded that 

the trial court in that instance “would have to, in effect, reform 

the contract, not through severance or restriction, but by 

augmenting it with additional terms.” (Ibid., italics added.)

5 Lange cites on a variety of appellate cases wherein the 

presence of multiple substantively unconscionable terms have 

been found sufficient to support a trial court’s conclusion that the 

contract was permeated with unconscionability. None of those 

cases, however, determined that the presence of multiple 

substantively unconscionable terms required the trial court to so 

conclude.
23

The Ninth Circuit considered the question before us in 

Poublon v. C.H. Robinson Company (9th Cir. 2017) 846 F.3d 

1251, 1273. There, as here, a party argued that “an agreement is 

necessarily permeated by unconscionability if more than one 

clause in the agreement is unconscionable or illegal.” (Ibid.) The 

court responded: “We disagree; California courts have not 

adopted such a per se rule.” (Ibid.) The court there noted, as we 

have, that the presence of more than one substantively 

unconscionable term “is only one of the relevant factors” in the 

trial court’s severability inquiry. (Ibid.) “In each case” regarding 

severance, the Ninth Circuit said, “the dispositive question is 

whether ‘the central purpose of the contract’ is so tainted with 

illegality that there is no lawful object of the contract to enforce.” 

(Ibid.) We agree.

We return, however, to the major premise of Monster’s 

primary contention on appeal—that the trial court based its 

ruling entirely on its incorrect understanding of the law. We do 

not read the trial court’s ruling as Monster does. The trial court 

appears to have based its ruling on two alternative grounds; that 

there was more than a single unconscionable term in the 

arbitration agreement and that one of those terms so permeated 

the arbitration agreement with unconscionability that the trial 

court could discern no reasonable means of severance that would 

remedy the unconscionability. While we agree with Monster that 

the trial court relied on an erroneous understanding of applicable 

law regarding the number of unconscionable provisions that may 

render an arbitration agreement irreparable by severance, there 

has been no argument here about the alternative ground for the 

ruling. Consequently, we cannot conclude the trial court abused 

its discretion when it denied Monster’s motion. Indeed, we agree 
24

with the trial court that the parties’ arbitration agreement is 

permeated with too high a degree of unconscionability for 

severance to rehabilitate.

DISPOSITION

The trial court’s order is affirmed. Lange is entitled to 

costs on appeal.

CERTIFIED FOR PUBLICATION

CHANEY, Acting P. J.

We concur:

BENDIX, J.

WEINGART, J.*

* Judge of the Los Angeles Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.