Somers v. Pletcher CA2/5 ( 2015 )

Filed 10/8/15 Somers v. Pletcher CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
DIVISION FIVE
KEITH SOMERS, B253975
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC507823)
v.
MITCHELL PLETCHER et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of the County of Los Angeles,
Robert L. Hess, Judge. Affirmed.
Herrera & Associates, P.C., Alex H. Herrera for Plaintiff and Respondent.
Long & Delis, T. Patrick Long, Warren B. Campbell for Defendants and
Appellants.
INTRODUCTION
Defendants Mitchell Pletcher, Mitchell Anthony Productions, LLC (the production
company), and Concord Investment Counsel appeal from an order denying their motion
to compel arbitration. (Code Civ. Proc., § 1294, subd. (a) [an order denying a motion to
compel arbitration is directly appealable.].) Plaintiff, Keith Somers, was employed by the
production company as an actor, dancer, and vocalist for a theatrical show. He filed a
complaint against defendants and others for various causes of action, including violations
of the Fair Employment and Housing Act. Defendants moved to compel arbitration,
citing an arbitration agreement signed by plaintiff and the production company. Plaintiff
opposed the motion on various grounds, including the ground that the agreement was
unconscionable. The trial court denied the defendants’ motion. In the appeal, defendants
contend the agreement is not unconscionable and should be enforced. We affirm the
order denying the motion to compel arbitration.
BACKGROUND
A. Plaintiff’s Complaint
In a verified first amended complaint filed on August 2, 2013,1 plaintiff alleges the
following. Mr. Pletcher resides in Irvine, California. He is a sole shareholder, director,
and officer of the production company, a California corporation based in Irvine. Mr.
Pletcher is the sole shareholder, director, and officer of Concord Investment Counsel,
Inc., a California corporation.
On January 7, 2013, plaintiff and the production company entered into a written
agreement, called “Independent Contractor’s Agreement” (agreement) for plaintiff to be
in the cast of a musical theater production called “Beautiful” for a total compensation of
about $30,000. Mr. Pletcher signed the agreement on behalf of the production company.
1
A complaint was filed May 3, 2013. Plaintiff was granted a waiver of court fees.
2
Defendants made misrepresentations regarding the legitimacy of the theatrical
production, the production team’s experience and previous success, and the opening date
and venue of the show, and they made false promises regarding compensation and
schedules. Two hours after signing the agreement, plaintiff was offered a job with the
Discovery Channel, which plaintiff declined. The musical production was a sham: it was
intended to be a tax evasion scheme, not a legitimate production. Defendants did not
comply with the original rehearsal, performance or compensation schedule. Within
weeks, the performance venue, script, and role of the cast changed, which reduced the
schedule and compensation of plaintiff. Plaintiff informed Mr. Pletcher of his financial
position and stated he absolutely needed compensation from this job. Mr. Pletcher and
plaintiff entered into a new agreement regarding a new script, venue, and schedule, but
plaintiff was not included in rehearsal schedules or paid for his work and time dedicated
to the project. Plaintiff suffered financial hardship.
Plaintiff alleges numerous causes of action against defendants, including: fraud;
constructive fraud; conspiracy to defraud; intentional and negligent misrepresentation;
intentional interference with economic advantage; written and oral contract breach;
breach of the implied covenant of good faith and fair dealing; violations of the Fair
Employment and Housing Act (disparate impact, failure to prevent harassment and
discrimination, and hostile work environment); infliction of intentional emotional
distress; and intentional misclassification as an independent contractor. The agreement
contained an arbitration provision. Plaintiff alleged the cause of action for breach of
written contract was outside the scope of the provision. Further, plaintiff objected to the
arbitration provision on the ground it was unconscionable procedurally, due to inequality
in bargaining power, and unconscionable substantively, due to the requirement plaintiff
arbitrate in expensive federal arbitration and bear his own costs. Further, as plaintiff was
not compensated pursuant to the agreement, it was impossible for him to bear the costs.
3
B. Motion to Compel Arbitration
1. Defendants’ Motion
On June 28, 2013, Mr. Pletcher filed a motion to compel arbitration and stay the
action. The production company and Concord Investment Counsel joined the motion. In
a memorandum of points and authorities, Mr. Pletcher cited to the arbitration provision in
the agreement: “ ‘In the event of any dispute arising under or involving any provision of
this Agreement or any dispute regarding claims involving unlawful discrimination and/or
unlawful harassment, not arising out of the termination of employment, or the termination
of employment (with the exception of . . . any wage and hour matter within the
jurisdiction of the California Labor Commissioner), contractor [plaintiff] and the
Company agree to submit any such dispute to binding arbitration pursuant to the
provisions of the Federal Arbitration Act, 9 U.S.C. section 1, et. Seq. [sic], if applicable,
or the provisions of Title of Part III [sic] of the California Code of Civil Procedure,
commencing at Section 1280 et. seq. . . . if the Federal Arbitration Act does not apply to
contractor’s employment . . . .’” The provision further provides: “Contractor and the
company agree that arbitration shall be the exclusive forum for resolving all disputes
arising out of or involving the contractor’s employment with the Company or the
termination of that employment (with the exception of . . . any wage and hour matter
within the jurisdiction of the California Labor Commissioner[.]” “The contractor and the
Company shall each bear their own costs for legal representation at any such arbitration
and the cost of the arbitrator, court reporter, if any, and any incidental costs of
arbitration.”
Mr. Pletcher contended that under both federal and state law, the arbitration
provision is enforceable as to all of plaintiff’s claims.
The agreement was attached to the motion. Under the agreement, plaintiff had the
position of “artist/dancer,vocalist/Lorenzo.” Plaintiff agreed to participate in rehearsals
at dance studios in Los Angeles and performances of the stage show under the
4
supervision of Mr. Pletcher, who was the producer/director, the choreographer, and all
production staff. The agreement provided the work week would be determined by the
director but would generally be five days a week, with potential for six to seven day
weeks, for a duration estimated to be 12 weeks. Compensation was $200 per day for
each rehearsal day and $250 per performance or, if there were two performances in one
day, $150 per performance. “Beautiful” would be produced at the Saban Theater, the
estimated date for the first performance was April 12, 2013, and the show would run for
12 weeks.2
2. Plaintiff’s Opposition
In an opposition filed on August 21, 2013, plaintiff contended Mr. Pletcher, a non-
attorney, does not have standing to bring the motion, plaintiff is not subject to the
arbitration provision, the claims are not subject to the arbitration provision, and, in the
alternative, the claims are independent and should be severed.3
In a supplement to opposition, filed on August 23, 2013, plaintiff contended
defendants waived their right to arbitrate by failing to resolve a dispute over arbitrator
fees.
In a second supplement to opposition, filed November 18, 2013, plaintiff opposed
the motion on the additional grounds that the arbitration provision is unconscionable and
the agreement is void as against public policy.4 He contended the provision was
procedurally unconscionable in that it was a standardized contract drafted by Mr.
2
No declaration in support of the motion to compel arbitration was filed with the
motion.
3
Mr. Pletcher filed a reply to plaintiff’s August 21, 2013 opposition, in which he
contended he is a party to the agreement, he has the right to compel arbitration for the
production company, plaintiff is bound to arbitration, and all further actions should be
stayed pending arbitration.
4
Defendants did not designate plaintiff’s second supplement to opposition to be
part of the clerk’s transcript. Plaintiff augmented the record with it.
5
Pletcher, it was presented on a take-it-or-leave-it basis, there were no negotiations
regarding the terms of the arbitration provision, the defendants refused to hire plaintiff
without plaintiff first agreeing to sign the agreement, and defendants had overwhelming
bargaining power. Plaintiff argued the provision is substantively unconscionable because
it produces an arbitrator proposed by defendants, the use of JAMS or AAA is precluded,
and arbitration costs are apportioned to the employee without regard to the merits of the
claim, which prices plaintiff out of the dispute resolution process.
Plaintiff submitted a declaration in support, in which he declared: “When I was
hired, I was never given any opportunity to negotiate the terms of my employment
agreement. If I refused to sign the contract I was given, I simply wouldn’t have gotten
the job. The job was presented to me in a take it or leave it fashion; I either take the job,
sign the agreement, or I leave. An original agreement was provided to me that did not
include an arbitration page. Quickly afterwards, a new and ‘revised’ agreement was sent
to me for signing. The contract was created and drafted by Defendants, and I did not
participate in the drafting in any manner whatsoever. Not a single term in the contract
was negotiable, nor did I negotiate any. The process of signing the agreement and
agreeing to the terms presented were dictator like in that Defendants had overwhelming
bargaining power, and I had none. All cast members, including myself[,] were required
to sign almost the exact same agreements.”
Plaintiff’s attorney submitted a declaration in support, in which he declared that, in
May 2013, he informed Mr. Pletcher that plaintiff was willing to arbitrate his claims
using JAMS because JAMS uses a fee waiver protocol, which “would make arbitration
possible.” If plaintiff qualified for a fee waiver, the costs of arbitration would shift to Mr.
Pletcher. Mr. Pletcher rejected using JAMS.5
5
Defendants did not file a written reply to plaintiff’s second supplement. In the
appeal, they contend the second supplement was untimely filed, counsel did not receive it
until the morning of the hearing, and the declaration of plaintiff was not signed under
penalty of perjury. To the extent defendants contend the trial court erred in “allowing”
the second supplement, the record does not indicate defendants objected at the hearing or
ask for a continuance. The objection has been forfeited. (In re S.B. (2004) 32 Cal. 4th
6
 C. Order Denying Motion to Compel Arbitration
On November 26, 2013, a hearing was held on the motion to compel
arbitration.6 Honorable Robert L. Hess presided. There was no court reporter. Judge
Hess denied the motion, ruling that the arbitration agreement was procedurally
unconscionable because it was presented on a take it or leave it basis and substantially
unconscionable because it did not provide for discovery and required each party to bear
one-half the costs of arbitration without cost-shifting. Plaintiff was ordered to prepare an
order. The order after hearing was signed by Judge Hess and filed on February 20, 2014.
DISCUSSION
A. Adequacy of the Record
Defendants failed to provide a reporter’s transcript or suitable substitute (Cal.
Rules of Court, rule 8.1377 [settled statement]8) of the hearing on the motion to compel
arbitration. A party challenging a judgment or order has the burden of showing
1287, 1293 [“a reviewing court ordinarily will not consider a challenge to a ruling if an
objection could have been but was not made in the trial court”].)
6
Mr. Pletcher augmented the record with a motion for sanctions he filed in the case
which was heard and denied by Judge Hess on November 20, 2013, six days before Judge
Hess presided at the hearing on the motion to compel arbitration. Plaintiff’s payroll
history, attached to the sanctions motion, indicated plaintiff worked ten days in the first
two weeks, four days in the next four weeks, and no days thereafter. In a declaration of
Mitchell Pletcher, Mr. Pletcher declared the production company lost $400,000 on the
project. In May 2013, plaintiff was granted a fee waiver when he filed the complaint, as
his income was at the poverty level and he needed food stamps to survive.
7
Hereinafter, all references to rules refer to the California Rules of Court.
8
Rule 8.137(b)(1) provides that an appellant intending to proceed by settled
statement must prepare “a condensed narrative of the oral proceedings” for settlement by
the trial judge.
7
reversible error by an adequate record. (Ballard v. Uribe (1986) 41 Cal. 3d 564, 574;
Rossiter v. Benoit (1979) 88 Cal. App. 3d 706, 712.) In the absence of an adequate record
on appeal to establish error, the judgment is presumed correct and must be affirmed.
(Maria P. v. Riles (1987) 43 Cal. 3d 1281, 1295-1296; Ballard v. Uribe, supra, 41 Cal.3d
at pp. 574-575.)
We provided the parties an opportunity to brief the issue of the adequacy of the
record. Defendants responded, explaining “[t]he only oral proceedings were perfunctory
arguments on the written motion. No evidence was submitted or taken at the oral
hearing. The only submissions to the trial court were the papers filed in support of and in
opposition to the motion to compel arbitration.” Plaintiff did not address the issue.
We conclude the record is adequate to show whether or not there is reversible
error. The minute order of the proceedings on November 26, 2013 is a sufficient record
of the court’s ruling. The papers filed on the motion that were before the court at the
hearing are contained in the record, as is Mr. Pletcher’s motion for sanctions that was
heard by Judge Hess six days earlier.9 In these circumstances, although lacking a
reporter’s transcript or settled statement, the record is minimally sufficient for us to be
able to review for substantial evidence the court’s resolution, express or implied, of the
disputed facts necessary to support the legal determination that the arbitration agreement
was unconscionable. (Chin v. Advanced Fresh Concepts Franchise Corp. (2011) 194
Cal. App. 4th 704, 708; Stirlen v. Supercuts, Inc. (1997) 51 Cal. App. 4th 1519, 1527 fn. 2.)
“ ‘[I]n the absence of indications to the contrary, a general finding includes a finding of
all the special facts necessary to sustain it.’ [Citations.]” (Albonico v. Madera Irrigation
Dist. (1960) 53 Cal. 2d 735, 741.)
9
At defendants’ request, the record was augmented with Mr. Pletcher’s motion for
sanctions.
8
B. Legal Standards
Both state and federal laws favor enforcement of valid arbitration agreements.
(Armendariz (2000) 24 Cal. 4th at 83, 97 (Amendariz).) However, courts will not enforce
arbitration provisions that are unconscionable or contrary to public policy. (Sanchez v.
Valencia Holding Co., LLC (2015) 61 Cal. 4th 899, 910; Pinnacle Museum Tower Assn. v.
Pinnacle Market Development (U.S.), LLC (2012) 55 Cal. 4th 223, 247 (Pinnacle);
Armendariz, supra, 24 Cal.4th at p. 114.) The party opposing arbitration, in this case
plaintiff, bears the burden of proving that an arbitration agreement is unenforceable based
on unconscionability. (See Sanchez v. Valencia Holding Co. LLC (2015) 61 Cal. 4th 899,
911 (Sanchez); Pinnacle, supra, 55 Cal.4th at p. 247.)
“Under California law, courts may refuse to enforce any contract found ‘to have
been unconscionable at the time it was made,’ or may ‘limit the application of any
unconscionable clause.’ Cal. Civ. Code Ann. § 1670.5(a) (West 1985).” (AT&T Mobility
LLC v. Concepcion (2011) 563 U.S. ___, ___ [131 S. Ct. 1740, 1745-1746].)
“ ‘“One common formulation of unconscionability is that it refers to ‘ “an absence
of meaningful choice on the part of one of the parties together with contract terms which
are unreasonably favorable to the other party.”’ [Citation.] As that formulation
implicitly recognizes, the doctrine of unconscionability 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.”’ [Sonic-Calabasas A,
Inc. v. Moreno (2013) 57 Cal. 4th 1109, 1133 (Sonic II).] [para.] “‘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
9
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].) Courts may
find a contract as a whole ‘or any clause of the contract’ to be unconscionable. (Civ.
Code, § 1670.5, subd. (a).) [para.] As we stated in Sonic II: ‘The unconscionability
doctrine ensures that contracts, particularly contracts of adhesion, do not impose terms
that have been variously described as “ ‘ “overly harsh”’” (Stirlen v. Supercuts, Inc.[,
supra, 51 Cal.App.4th at p. 1532]), “ ‘unduly oppressive’” (Perdue v. Crocker National
Bank (1985) 38 Cal. 3d 913, 925 . . .), “ ‘so one-sided as to “shock the conscience”’”
(Pinnacle[, supra, 55 Cal.4th at p. 246]), or ‘unfairly one-sided’ (Little [v. Auto Stiegler,
Inc. (2003)] 29 Cal.4th [1064,] 1071 . . . ). 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.]’
(Sonic II, supra, 57 Cal.4th at p. 1145.) . . . [para.] . . . The ultimate issue in every
case is whether the terms of the contract are sufficiently unfair, in view of all relevant
circumstances, that a court should withhold enforcement.” (Sanchez, supra, 61 Cal.4th at
pp. 910-911.)
“ ‘When the weaker party is presented the clause and told to “take it or leave it”
without the opportunity for meaningful negotiation, oppression, and therefore procedural
unconscionability, are present.’ [Citations.]” (McManus v. CIBC World Markets Corp.
(2003) 109 Cal. App. 4th 76, 91; accord, Sanchez, 61 Cal.4th at p. 915.)
“Unconscionability is ultimately a question of law, which we review de novo
when no meaningful factual disputes exist as to the evidence. . . . We review the court’s
resolution of disputed facts for substantial evidence. . . . When the trial court makes no
10
express findings, we infer that it made every implied factual finding necessary to support
its order and review those implied findings for substantial evidence.” (Chin v. Advanced
Fresh Concepts Franchise Corp., supra, 194 Cal.App.4th at p. 708.) “When the validity
of an arbitration clause turns on a factual determination[,] ‘[t]he standard on appeal is
whether there is substantial evidence to support the trial court’s finding.’ [Citation.]”
(Stirlen v. Supercuts, Inc., supra, 51 Cal.App.4th at p. 1527 fn. 2.)
C. Fair Employment and Housing Act Claims and Arbitration
“It is indisputable that an employment contract that required employees to waive
their rights under the [Fair Employment and Housing Act] to redress sexual harassment
or discrimination would be contrary to public policy and unlawful. [para.] . . . “[A]n
arbitration agreement cannot be made to serve as a vehicle for the waiver of statutory
rights created by the [Fair Employment and Housing Act].” (Armendariz, supra, at pp.
100-101; accord, Ellis v. U.S. Security Associates (2014) 224 Cal. App. 4th 1213, 1220-
1221.)
In the context of Fair Employment and Housing Act claims, our Supreme Court
required certain protections to prevent such waiver: the arbitration agreement may not
limit the damages normally available under the statute (Armendariz, supra, 24 Cal.4th at
p. 103); there must be discovery sufficient to adequately arbitrate the employee’s
statutory claim (id. at p. 106); there must be a written arbitration decision and judicial
review “‘sufficient to ensure the arbitrators comply with the requirements of [the]
statute’” (ibid.); and the employer must “pay all types of costs that are unique to
arbitration” (id. at p. 113). (Accord, Sonic II, supra, 57 Cal.4th at p. 1130; Little v. Auto
Stiegler, Inc. (2003) 29 Cal. 4th 1064, 107.)
11
Here, the arbitration provision applies to Fair Employment and Housing Act
claims.10 The requirement that plaintiff and the production company shall “bear their
own costs for legal representation at any such arbitration and the cost of the arbitrator,
court reporter, if any, and any incidental costs of arbitration” abrogates plaintiff’s right
under the Fair Employment and Housing Act to have the employer pay all costs and fees
that are unique to arbitration. This is a violation of public policy as a matter of law.
(Armendariz, supra, 24 Cal.4th at pp. 103, 113; see Broughton v. Cigna Healthplans
(1999) 21 Cal. 4th 1066, 1087.)
D. Unconscionability
1. Procedural Unconscionability
Defendants contend the arbitration provision is not procedurally unconscionable.
We disagree.
Substantial evidence supports a finding that the agreement is an adhesive contract
and thus oppressive. Plaintiff declared Mr. Pletcher imposed the contract on him and
every other cast member, on a take it or leave it basis, as a condition of employment, with
no opportunity to negotiate. “The process of signing the agreement and agreeing to the
terms presented were dictator like[.]” (See Armendariz, supra, 24 Cal.4th at pp. 114-115
[an arbitration agreement imposed on employees as a condition of employment and with
no opportunity to negotiate is adhesive].) “[T]he adhesive nature of [a] contract is
sufficient to establish some degree of procedural unconscionability.” (Sanchez, supra, 61
Cal.4th at p. 915.) As there is substantial evidence the contract is one of adhesion, the
trial court correctly ruled the arbitration provision was procedurally unconscionable.
10
As noted, the arbitration agreement provides “arbitration shall be the exclusive
forum for resolving all disputes arising out of or involving the contractor’s employment
with the Company[.]” (Supra, at p. 3.)
12
2. Substantive Unconscionability
Substantive unconscionability focuses on overly harsh or one-sided results.
(Sonic-Calabasas, supra, 57 Cal.4th at p. 1133; Little, supra, 24 Cal.4th at p. 1071.)
Defendants contend the agreement was not substantively unconscionable.
As noted, the arbitration provision, which applies to Fair Employment and
Housing Act claims, violates public policy in that it requires plaintiff to pay costs of
arbitration. An arbitration provision which violates public policy is substantively
unconscionable. (Sanchez, supra, 61 Cal.4th at p. 911; Armendariz, supra, 24 Cal.4th at
pp. 91; Wherry v. Award, Inc. (2011) 192 Cal. App. 4th 1242, 1248 [“Elimination of or
interference with any of these basic provisions [of the Fair Employment and Housing
Act] makes an arbitration agreement substantively unconscionable”]; Ontiveros v. DHL
Express (USA), Inc. (2008) 164 Cal. App. 4th 494, 510.)
Moreover, the arbitration provision requires each party to bear his own costs for
legal representation. This requirement abrogates plaintiff’s right to the discretionary
recovery of attorney fees as a prevailing party to a Fair Employment and Housing Act
claim. (Gov. Code § 12965, subd. (b) [“In civil actions brought under this section, the
court, in its discretion, may award to the prevailing party . . . reasonable attorney’s fees
and costs, including expert witness fees”].) “ ‘In [Fair Employment and Housing Act]
actions, attorney fee awards, which make it easier for plaintiffs of limited means to
pursue meritorious claims . . . “are intended to provide ‘fair compensation to the
attorneys involved in the litigation at hand and encourage[] litigation of claims that in the
public interest merit litigation.’ ” [Citation.]’ (Chavez v. City of Los Angeles [(2010)] 47
Cal.4th [970,] 984.)” (Trivedi v. Curexo Technology Corp. (2010) 189 Cal. App. 4th 387,
394.) As the arbitration provision requires plaintiff to pay his own attorney fees in
contravention of his rights under the Fair Employment and Housing Act, the provision is
substantively unconscionable. (See Id., 189 Cal.App.4th at pp. 394-396; Wherry v.
Award, Inc., supra, 192 Cal.App.4th at p. 1249.)
13
Further, plaintiff’s attorney stated in a declaration that plaintiff could not afford to
engage in arbitration proceedings unless he did not have to pay the fees of arbitration.
The trial court granted plaintiff’s application for a waiver of court fees when plaintiff
filed the complaint in May 2013. Mr. Pletcher stated in a declaration that plaintiff’s
income was at the poverty level and plaintiff needed food stamps to survive. The
foregoing is substantial evidence the cost provision rendered arbitration unaffordable for
plaintiff. As arbitration is the exclusive forum for resolving all disputes and arbitration
costs must be shared between the parties, the evidence plaintiff cannot afford to pay costs
means the arbitration provision deprives plaintiff of access to any forum in which to
adjudicate his claims. (See Sonic II, supra, 57 Cal.4th at pp. 1144-1145 [“ ‘it is
substantively unconscionable to require a consumer to give up the right to utilize the
judicial system while imposing arbitral forum fees that are prohibitively high. Whatever
preference for arbitration might exist, it is not served by an adhesive agreement that
effectively blocks every forum for the redress of disputes, including arbitration itself.’
[Citation.]”].) This is an overly harsh and one-sided result.
Defendants do not contend plaintiff failed to present evidence that, at the time the
agreement was entered into, the parties reasonably expected plaintiff would not be able to
afford arbitration costs. (See Sanchez, supra, 61 Cal. 4th at p. 920 [“courts are required
to determine the unconscionability of the contract ‘at the time it was made.’
[Citation]”].) “‘Because a predispute arbitration agreement is an agreement to settle
future disputes by arbitration, the proper inquiry is what dispute resolution mechanism
the parties reasonably expected the employee to be able to afford. Absent unforeseeable
(and thus not reasonably expected) circumstances, there is no reason to think that what an
employee can afford when a wage dispute arises will materially differ from the parties’
understanding of what the employee could afford at the time of entering the agreement.’
(Sonic II, supra, 57 Cal.4th at p. 1164.)” (Ibid.)
Even if it could have reasonably been expected at the time of entering into the
agreement that plaintiff would be able to afford arbitration, there is evidence events
occurred that were not reasonably expected, that rendered arbitration unaffordable when
14
the disputes arose. The agreement indicated plaintiff would be paid by the day, with at
least five days of work per week for 12 weeks of rehearsal, followed by performances
five days per week for 10 weeks. However, after only two weeks, Mr. Pletcher
substantially cut back the rehearsal schedule and thus plaintiff’s pay. This evidence
plaintiff received less compensation than the parties expected is substantial evidence that
arbitration costs which may have been expected to be affordable when the agreement was
entered into were not affordable at the time of the dispute.
The trial court correctly concluded the arbitration provision is unconscionable.
E. Requests for Alternative Relief
Defendants request that, if the arbitration provision’s rules and procedures for
arbitration are unconscionable, we order the parties to arbitrate their claims pursuant to
the California Arbitration Act, Code of Civil Procedure, section 1280 et seq. Defendants
also appear to request that, if we find the arbitration provision is unconscionable, we
sever any unconscionable portions and enforce the remainder. In addition, defendants
request that, if the court concludes plaintiff is financially unable to afford to arbitrate, the
court should order the parties to arbitrate in a forum, such as JAMS, that allows for fee
waivers. Alluding to an issue but failing to brief it with any specificity forfeits the issue.
(In re Marriage of Falcone & Fyke (2008) 164 Cal. App. 4th 814, 830 [appellant
“provides no argument or citation to authority in support of [the] contention. We are not
bound to develop appellants’ arguments for them. . . . The absence of cogent legal
argument or citation to authority allows this court to treat the contentions as waived[.]
([See Cal. Rules of Court, rule 8.204(a)(1)(B) [each point in a brief must be supported by
‘argument and, if possible, by citation of authority’])]; St. Sava Mission Corp. v. Serbian
Eastern Orthodox Diocese (1990) 223 Cal. App. 3d 1354, 1372, fn. 6.) Defendants
provide no argument or citation to authority supporting the contentions that these
alternative reliefs should be ordered and we should make the orders. Accordingly,
15
defendants forfeited the contentions by alluding to the issues but not briefing them with
any specificity.
DISPOSITION
The order denying the motion to compel arbitration is affirmed. Plaintiff, Keith
Somers, may recover his appeal costs from defendants Mitchell Pletcher, Mitchell
Anthony Productions, LLP, and Concord Investment Counsel.
KIRSCHNER, J.
We concur:
KRIEGLER, Acting P.J.
BAKER, J.

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
16