Jacqueline McFaddin v. E.A. Renfroe & Co.

FILED
NOT FOR PUBLICATION
OCT 17 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACQUELINE MCFADDIN, individually No. 15-55886
and on behalf of all others similarly
situated, D.C. No.
5:14-cv-02369-VAP-SP
Plaintiff-Appellee,
v. MEMORANDUM*
E.A. RENFROE & COMPANY, INC., a
Georgia corporation,
Defendant-Appellant.
JACQUELINE MCFADDIN, No. 15-56404
Plaintiff-Appellee, D.C. No.
5:15-cv-01044-VAP-SP
v.
E.A. RENFROE & COMPANY, INC., a
Georgia corporation,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Virginia A. Phillips, Chief Judge, Presiding
Argued and Submitted August 8, 2017
Pasadena, California
Before: REINHARDT, KOZINSKI, and CHRISTEN, Circuit Judges.
California law governs the determination of whether the parties’ arbitration
agreement is unconscionable. Under California law, “the strong preference is to
sever unless the agreement is permeated by unconscionability.” Ajamian v.
CantorCO2e, L.P., 203 Cal. App. 4th 771, 802 (2012) (internal quotation marks
omitted); see Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1272 (9th Cir. 2017).
We agree with the district court that the choice of forum provision, the prevailing
party provision, and the cost provision are unconscionable. Renfroe stipulated it
would not enforce the choice of forum provision, and the prevailing party and cost
provisions are severable. See Fittante v. Palm Springs Motors, Inc., 105 Cal. App.
4th 708, 727 (2003). Hence, we vacate its ruling that the entirety of the arbitration
agreement is unenforceable.
The district court did not address whether the arbitration agreement’s waiver
of class action claims is enforceable and applies to McFaddin’s California’s Private
Attorneys General Act claim. The district court shall address this issue before
reconsidering whether the agreement remains enforceable.
2
Appellant’s motion for judicial notice (dkt. 55) is denied.
VACATED and REMANDED.
3