Alberto v. Cambrian Homecare

Filed 4/19/23; Certified for Publication 5/10/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
JENNIFER PLAYU ALBERTO, B314192
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 20STCV41466)
v.
CAMBRIAN HOMECARE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Elihu M. Berle, Judge. Affirmed.
Atkinson, Andelson, Loya, Ruud & Romo, Amber S.
Healy, Neil M. Katsuyama, and Lauren D. Fierro, for
Defendant and Appellant.
Bibiyan Law Group, David D. Bibiyan, and Diego
Aviles, for Plaintiff and Respondent.
INTRODUCTION
Jennifer Playu Alberto, the respondent, is a former
employee of appellant Cambrian Homecare. When she was
hired, Alberto signed a written arbitration agreement.
Alberto brought wage-and-hour claims against
Cambrian. Cambrian petitioned for arbitration. The trial
court denied the petition. The trial court found that even if
the parties had formed an arbitration agreement, the
agreement had unconscionable terms, terms that so
permeated the agreement they could not be severed.
We affirm. The agreement, read together—as it must
be—with other contracts signed as part of Alberto’s hiring,
contained unconscionable terms. The trial court had
discretion to not sever the unconscionable terms, and to
refuse to enforce the agreement.
FACTUAL AND PROCEDURAL BACKGROUND1
A.Cambrian Hires Alberto; Alberto Signs
Agreements
Cambrian hired Alberto on or about September 17,
2019. That same day, as part of her orientation, a Cambrian
representative gave her agreements to sign. Three of those
agreements relate to resolution of potential disputes: a
“Dispute Resolution Process—Arbitration Agreement,” a
1 The parties do not materially dispute the facts we describe
here.
2
“Confidentiality Agreement,” and a “Confidentiality
Agreement Addendum.”
1. Arbitration Agreement
The Arbitration Agreement states that “[a]ny and all
claims or controversies arising out of Employee’s . . .
employment . . . or cessation of employment with Cambrian
shall be resolved through final and binding arbitration.” The
parties agreed not to “join or consolidate claims submitted
for arbitration under this Agreement with those of any other
persons, and that no form of class, collective, or
representative action” would be maintained without the
parties’ mutual consent. They “agree[d] that by signing this
Agreement[,] they have entered into a binding legal
agreement.” The agreement states that “[t]his Agreement is
entered into under the Federal Arbitration Act, and shall be
interpreted and construed in accordance with the law and
procedures developed under that statute.”
The Arbitration Agreement contains two signature
blocks, one for “Employee Name Printed” and one for “Paul
J. Quiroz” as “Managing Director.” Alberto signed the
Arbitration Agreement in the signature block allotted for
her. But the signature block for Mr. Quiroz, as “Managing
Director,” was left blank.
2. Confidentiality Agreement and
Addendum
Alberto signed the Confidentiality Agreement and
Addendum on the same day and as part of the same process
3
in which she signed the Arbitration Agreement. The
Confidentiality Agreement states that Alberto may not
disclose what that agreement calls “trade secrets.” It defines
such “trade secrets” broadly to include “information of a
confidential, proprietary or secret nature.” Notably, “[s]uch
trade secret information includes, but is not limited to,
compensation and salary data and other employee
information.” The Confidentiality Agreement required
Alberto to “acknowledge” that unauthorized use or disclosure
of Cambrian’s proprietary information “would cause
irreparable injury to the Company,” and to “consent to the
order of an immediate injunction, without bond, from any
court of competent jurisdiction, enjoining and restraining”
Alberto from “violating or threatening to violate” the
agreement. The agreement also states that if a dispute
arises “and a lawsuit is filed, the prevailing party shall be
entitled to reasonable attorney’s fees and costs.”
The Confidentiality Agreement Addendum requires
Alberto to keep confidential “[a]ll . . . employee information,”
including, without limitation, their “names . . . , addresses
and phone numbers.” The Addendum reiterates that
disclosure of such information would cause “irreparable
injury” to Cambrian, and that the failure to comply with the
agreement would entitle Cambrian “to seek injunctive or
equitable relief as well as monetary damages.”
4
B. Alberto Files a Complaint; Cambrian
Demands Arbitration
On October 27, 2020, Alberto filed a complaint, alleging
multiple wage-and-hour causes of action. On January 4,
2021, Cambrian asked Alberto to arbitrate her dispute. She
refused and, on January 25, 2021, filed a “First Amended
Class Action Complaint,” again alleging wage-and-hour
causes of action, and also alleging she was an “‘aggrieved
employee’” under the Private Attorneys General Act (PAGA).
On March 17, 2021, Cambrian petitioned to compel
arbitration. Cambrian also contended that Alberto had
waived any class or representative claims.
On April 7, 2021, Alberto opposed the petition. She
argued that no arbitration agreement had been formed
because Cambrian had not signed the agreement. She also
argued that the Arbitration Agreement was “infected with
both procedural and substantive unconscionability, the taint
of which cannot be severed or cured.” On April 19, 2021,
Cambrian replied.
On April 29, 2021, the trial court considered
Cambrian’s petition, and asked for additional briefing on the
issue of whether the Arbitration Agreement delegated the
determination of the Arbitration Agreement’s validity to an
arbitrator, not the court. The parties filed supplemental
briefing. Cambrian initially asked the trial court to decide
the validity of the waiver of representative action but leave
for the arbitrator remaining issues concerning the
Arbitration Agreement’s validity. Ultimately, both
5
Cambrian and Alberto agreed that the trial court, not the
arbitrator, should decide all issues concerning the validity of
the agreement to arbitrate, a stipulation the trial court
accepted.
C. The Trial Court Denies Cambrian’s Petition
On June 11, 2021, the trial court denied Cambrian’s
petition to compel arbitration. The trial court found that
Cambrian’s failure to sign the Arbitration Agreement meant
that the parties had not formed an agreement to arbitrate.
It reasoned that the Arbitration Agreement contained an
“express[] provision that the parties need[ed] to sign it in
order [for it] to be binding.”
The trial court also found the Arbitration Agreement
unconscionable and unenforceable, even assuming it had
been formed. It found the agreement procedurally
unconscionable as a contract of adhesion. Recognizing that
both procedural and substantive unconscionability were
necessary to avoid enforcing the agreement, the trial court
found the agreement substantively unconscionable for three
reasons. First, it noted that the Confidentiality Agreement
and Addendum, which it found to be part of the “same
transaction” as the Arbitration Agreement, allowed
Cambrian to obtain injunctive relief in a court to remedy a
violation of Cambrian’s confidentiality interests, without the
need to post a bond or demonstrate irreparable injury, even
as Alberto’s claims against Cambrian were relegated to
arbitration. Second, the trial court found unconscionable the
6
Confidentiality Agreement’s prohibition on discussing salary
information. The trial court reasoned that if Alberto “sought
to avail herself of her rights under the Labor Code, she
would be faced with either the inability to discuss or disclose
salary information with other employees [under] the threat
of litigation, including potential liability for attorneys’ fees
and cost[s],” which would “dissuade employees from bringing
claims individually,” and impede “the ability for employees
to investigate facts for collective action.” Third, the trial
court found the agreement’s wholesale waiver of PAGA
claims unconscionable and against public policy. Based on
the combination of these three factors, the court found a
“high degree of substantive unconscionability.”
The trial court found the entire agreement to arbitrate
“permeat[ed]” by unconscionability, meaning that the
unconscionable provisions could not be severed and the
remainder of the Arbitration Agreement enforced. It noted
that “standing alone, none of these clauses would necessitate
a conclusion that the agreement is permeat[ed by]
unconscionability. However, taken together, such a
conclusion is required.” Cambrian timely appealed.
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion
in Refusing to Enforce the Agreement
Cambrian, on appeal, contests the trial court’s rulings
on contract formation and unconscionability. We need not
7
reach the contract formation issue. Assuming (without
deciding) that Cambrian and Alberto formed an arbitration
agreement despite Cambrian’s missing signature, the
agreement had unconscionable terms. The trial court was
not required to sever those terms, and therefore was not
required to enforce the Arbitration Agreement.
1. Unconscionable Terms
(a) Basic principles and standard of
review
Unconscionable terms in an arbitration agreement
cannot be enforced. (OTO, L.L.C. v. Kho (2019) 8 Cal.5th
111, 118.) “[T]he party opposing arbitration bears the
burden of proving by a preponderance of the evidence any
defense, such as unconscionability. [Citations.]” (Peng v.
First Republic Bank (2013) 219 Cal.App.4th 1462, 1468.)
When the facts are not in dispute, this court reviews
unconscionability de novo. (Pinela v. Neiman Marcus Grp.,
Inc. (2015) 238 Cal.App.4th 227, 241 [reviewing de novo “the
legal question of unconscionability here, in the first
instance” when there were “no facts in dispute”].) Here, no
disputed factual issue bears upon our unconscionability
analysis. The parties do not dispute the language of the
relevant agreements. They do not dispute that Alberto was
required to sign the agreements as a condition of
employment. Accordingly, our review of Alberto’s
unconscionability defense is de novo.
8
“‘[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 v. Foundation Health Psychcare Services, Inc.
(2000) 24 Cal.4th 83, 114 (Armendariz).)
The trial court found a low degree of procedural
unconscionability due to the adhesive nature of the
agreement. Neither party contests this finding on appeal.
Therefore, only a high degree of substantive
unconscionability would render the agreement
unconscionable. (See, e.g., Ramirez v. Charter
Communications, Inc. (2022) 75 Cal.App.5th 365, 373,
review granted June 1, 2022, S273802 [“When, as here, the
degree of procedural unconscionability is low, the agreement
9
must be enforced unless the degree of substantive
unconscionability is high”].) We find that the trial court did
not err in finding a high degree of substantive
unconscionability.
(b) Relation of Confidentiality
Agreement to Arbitration
Agreement
Cambrian largely concedes that parts of the
Confidentiality Agreement are substantively unconscionable.
It argues, however, that unconscionability in the
Confidentiality Agreement does not matter. According to
Cambrian, because “the Confidentiality Agreement is not
part of the Arbitration Agreement . . . any purportedly
unconscionable provisions in the Confidentiality Agreement
have no bearing on the enforceability of the Arbitration
Agreement.” Not so.
“‘Under Civil Code section 1642, it is the general rule
that several papers relating to the same subject matter and
executed as parts of substantially one transaction, are to be
construed together as one contract [citation].’” (IMO
Development Corp. v. Dow Corning Corp. (1982) 135
Cal.App.3d 451, 463.) According to that rule, documents
executed as part of a single transaction are construed
together, even if they do not expressly refer to one another.
(Boyd v. Oscar Fisher Co. (1989) 210 Cal.App.3d 368, 378;
Cadigan v. American Trust Co. (1955) 131 Cal.App.2d 780,
10
786–787 [“it [is] unnecessary for either instrument to refer to
the other”].)
Here, we have no difficulty concluding that the
Arbitration Agreement and the Confidentiality Agreement
should be read together. They were executed on the same
day. They were both separate aspects of a single primary
transaction—Alberto’s hiring. They both governed,
ultimately, the same issue—how to resolve disputes arising
between Alberto and Cambrian arising from Alberto’s
employment. Failing to read them together artificially
segments the parties’ contractual relationship. Treating
them separately fails to account for the overall dispute
resolution process the parties agreed upon.
So, unconscionability in the Confidentiality Agreement
can, and does, affect whether the Arbitration Agreement is
also unconscionable. To hold otherwise would let Cambrian
impose unconscionable arbitration terms, and then avoid a
finding of unconscionability because it put the objectionable
terms in a (formally) separate document. That is contrary to
Civil Code section 1642. (See Brookwood v. Bank of America
(1996) 45 Cal.App.4th 1667, 1675–1676 [trial court properly
considered under Civil Code section 1642 separate
documents containing arbitration clauses and employment
contract with no such clause when all documents were part
of same transaction], abrogated on other grounds by
Donovan v. Rrl Corp. (2001) 26 Cal.4th 261, 279, as
recognized in Greif v. Sanin (2022) 74 Cal.App.5th 412, 439.)
11
Cambrian argues the trial court erred by
“incorporat[ing]” the terms of the Confidentiality Agreement
into the Arbitration Agreement, citing Troyk v. Farmers
Group, Inc. (2009) 171 Cal.App.4th 1305, 1331. This
argument confuses two principles of law. Construing
different instruments together pursuant to Civil Code
section 1642 is not the same thing as incorporating them
into one instrument. (Mountain Air Enterprises, LLC v.
Sundowner Towers, LLC (2017) 3 Cal.5th 744, 759 [“‘“[J]oint
execution would require the court to construe the two
agreements in light of one another; it would not merge them
into a single written contract”’”].) Cambrian is correct—the
Arbitration Agreement and the Confidentiality Agreement
do not incorporate one another. But, since the two
agreements were part of a single transaction (Alberto’s
hiring and the dispute resolution procedure applicable to
Alberto) unconscionability in the Confidentiality Agreement
is relevant in determining whether the parties’ agreement to
arbitrate was unconscionable.2 We turn now to that
question.
2 At oral argument, Cambrian contended that Ahern v. Asset
Management Consultants, Inc. (2022) 74 Cal.App.5th 675supports its position. We disagree. In Ahern, one agreement
lacked an arbitration clause while another agreement contained a
“narrow” one. (Id. at 689.) Our colleagues in Division Seven
rejected an argument that Civil Code section 1642 compelled the
importation of the arbitration clause from one agreement into the
other, finding that the two separate agreements covered “distinct
and successive phases” of a real estate transaction, with nothing
(Fn. is continued on the next page.)
12
(c) Non-mutuality
“‘[T]he paramount consideration in assessing
conscionability is mutuality.’ [Citation.]” (Davis v. Kozak
(2020) 53 Cal.App.5th 897, 910.) Here, the trial court found
the Confidentiality Agreement’s injunction provisions made
the parties’ agreement to arbitrate insufficiently mutual.
The Arbitration Agreement required Alberto to arbitrate all
of her claims against Cambrian. But the Confidentiality
Agreement allowed Cambrian to obtain—outside of
arbitration—an “immediate” injunction for Alberto’s breach
of Cambrian’s confidentiality requirements. Specifically, the
Confidentiality Agreement required Alberto to consent to an
“order of an immediate injunction, without bond, from any
court of competent jurisdiction, enjoining and restraining”
Alberto from disclosing confidential or proprietary
information. It allowed Cambrian to obtain attorney fees if
it prevailed on such an injunction. An injunction enforcing
“suggesting arbitration was mandatory” for disputes relating to
the agreement without an arbitration clause. (Id. at 696.) Here,
the Confidentiality Agreement and Arbitration Agreements do
not cover distinct phases of a transaction. Instead, they
represent the parties’ overall agreement as to how to handle
dispute resolution in connection with Alberto’s employment.
Ahern says nothing about the issue before us—whether, when
there are two separate agreements, both executed on a single day
as part of an employee’s hiring, and both of which govern dispute
resolution as part of the overall employment relationship, we
may conclude the unconscionability in both agreements renders
the agreement to arbitrate unconscionable.
13
Cambrian’s confidentiality terms would, of course,
exclusively benefit Cambrian.
The trial court’s finding was well supported by
California law. To be sure, provisions that allow employers
to seek a preliminary injunction outside of arbitration for
breach of a confidentiality agreement are not, by themselves,
unconscionable, simply because they primarily benefit
employers. (Lange v. Monster Energy Co. (2020) 46
Cal.App.5th 436, 450 [provision allowing employer to seek
preliminary injunctive relief for breach of confidentiality
agreement was within legitimate “margin of safety” for
employer and not unconscionable]; Carbajal v. CWPSC, Inc.
(2016) 245 Cal.App.4th 227, 250 (Carbajal) [right to
preliminary injunctive relief protected by California
Arbitration Act].) But additional provisions that waive the
employer’s need to obtain a bond before seeking an
injunction, waive the employer’s need to show irreparable
harm, and require an employee to consent to an immediate
injunction are unconscionable. They exceed the legitimate
“margin of safety” for the employer and are not mutual.
(Lange, supra, 46 Cal.App.5th at 451 [“injunctive relief
provisions that waive a bond and waive the requirement that
a party show irreparable harm are substantively
unconscionable”]; Carbajal, supra, 245 Cal.App.4th at 250
[“injunctive relief carve-out provision creates further
substantive unconscionability because it waives the
requirement that [employer] post a bond to obtain an
injunction or other equitable relief”]; ibid. [“arbitration
14
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”].)3 Each
of those provisions was present here—the Confidentiality
Agreement and Addendum waived Cambrian’s need to
obtain a bond before seeking an injunction, required Alberto
to agree in advance to the existence of irreparable injury,
and required Alberto to consent to the issuance of an
injunction. Those terms made the injunction provision
unconscionable.
(d) Discussion of wages
The trial court found the Confidentiality Agreement’s
prohibition on discussing wages unconscionable. As we
describe above, the Confidentiality Agreement treated
“compensation and salary data and other employee
information” as a supposed “trade secret” that Alberto could
be enjoined from discussing. Cambrian does not
meaningfully contest the trial court’s conclusion that this
provision was unconscionable, arguing only that a case relied
upon by Alberto (Ting v. AT&T (9th Cir. 2003) 319 F.3d
1126) is inapposite.
3 Cambrian attempts to distinguish Lange and Carbajal by
noting that the carveouts in those cases were set forth in the
arbitration agreements themselves, not separate documents.
Because the trial court properly construed the agreements in this
case in light of each other, this distinction is immaterial.
15
The trial court was correct on this point. The Labor
Code provides that “No employer may do any of the
following: [¶] (a) Require, as a condition of employment, that
an employee refrain from disclosing the amount of his or her
wages. [¶] (b) Require an employee to sign a waiver or other
document that purports to deny the employee the right to
disclose the amount of his or her wages. [¶] (c) Discharge,
formally discipline, or otherwise discriminate against an
employee who discloses the amount of his or her wages.”
(Lab. Code, § 232.) The Confidentiality Agreement on its
face violated the Labor Code.
A facially illegal provision, in direct contravention of
the Labor Code, is unconscionable. And the provision was
not merely illegal or unconscionable in a general sense. It
was a kind of illegality that directly affected Alberto’s status
in the arbitration process. As the trial court explained, if
Alberto “sought to avail herself of her rights under the Labor
Code, she would be faced with either the inability to discuss
or disclose salary information with other employees [under]
the threat of litigation, including potential liability for
attorneys’ fees and cost[s].” The trial court rightly noted
that this provision “dissuade[d] employees from bringing
claims individually,” and impeded “the ability for employees
to investigate facts” that might be used in a representative
action, including a PAGA action. The trial court was thus
16
correct to find the restriction on discussing wages rendered
the Arbitration Agreement substantively unconscionable.4
(e) PAGA claims
“A PAGA representative action is . . . a type of qui tam
action,” in which “‘an “aggrieved employee” may bring a civil
action personally and on behalf of other current or former
employees to recover civil penalties for Labor Code
violations.” (Iskanian v. CLS Transportation Los Angeles,
LLC (2014) 59 Cal.4th 348, 380, 381 (Iskanian).) “‘An
employee plaintiff suing . . . under the [PAGA] does so as the
proxy or agent of the state’s labor law enforcement
agencies.’” (Id. at 380.)
The Arbitration Agreement provided that “no form of
class, collective, or representative action” would be
4 Under the Federal Arbitration Act (“FAA”), issues that go
to the validity of an underlying contract, as opposed to the
validity of an arbitration agreement itself, are normally decided
by an arbitrator, not the court. (See Buckeye Check Cashing, Inc.
v. Cardegna (2006) 546 U.S. 440, 445–446 [“unless the challenge
is to the arbitration clause itself, the issue of the contract’s
validity is considered by the arbitrator in the first instance”].)
The parties’ briefing does not address the applicability of this
aspect of the FAA to this case, perhaps because the parties
stipulated to the court deciding all issues around the validity of
the agreement to arbitrate. Accordingly, we do not consider how
this aspect of the FAA might matter to this case, except to note
that, as we discuss above, the restriction on discussing wages
here is not merely a generally illegal provision, but an illegal
provision that directly affects the one-sidedness of the arbitration
process.
17
maintained without the parties’ mutual consent. Citing
Iskanian, the trial court found this provision unconscionable
because it required Alberto to waive her PAGA claims.
In Iskanian, our Supreme Court held that “an
employee’s right to bring a PAGA action is unwaivable,” and
that “a prohibition of representative claims frustrates the
PAGA’s objectives.” (Iskanian, supra, 59 Cal.4th at 383,
384.) Our Supreme Court therefore concluded that
“where . . . an employment agreement compels the waiver of
representative claims under the PAGA, it is contrary to
public policy and unenforceable as a matter of state law.”
(Id. at 384.) In Viking River Cruises, Inc. v. Moriana (2022)
142 S.Ct. 1906, 1914, decided after the trial court’s ruling,
the United States Supreme Court found a different part of
Iskanian’s interpretation of PAGA preempted by the FAA.
But the United States Supreme Court did not disturb
Iskanian’s holding that a blanket PAGA waiver is
unconscionable under California law. Rather, the United
States Supreme Court found that, insofar as Iskanian
invalidated a provision for being “a wholesale waiver of
PAGA claims, . . . that aspect of Iskanian is not preempted
by the FAA.” (Viking River Cruises, supra, 142 S.Ct. at
1924–1925.) Although the trial court did not have the
benefit of Viking River Cruises when it ruled, that opinion
would not have changed the outcome. Both before and after
Viking River Cruises, blanket waivers of PAGA claims are
unconscionable. Therefore, the trial court’s ruling on this
issue was correct.
18
2. Severance
Thus, we affirm the trial court’s finding that the three
provisions it identified—the non-mutual confidentiality
injunction provisions, the prohibition on discussion of wages,
and the prohibition on representative and PAGA claims—
contained a high degree of substantive unconscionability.
We next determine whether the trial court acted properly
when it refused to sever these provisions from the rest of the
parties’ agreement to arbitrate.
Unlike our de novo review of Alberto’s
unconscionability defense, the decision on whether to sever
unconscionable terms from an agreement is “reviewed for
abuse of discretion” under Civil Code section 1670.5.
(Lhotka v. Geographic Expeditions, Inc. (2010) 181
Cal.App.4th 816, 821, 826.) “‘A ruling amounts to an abuse
of discretion when it exceeds the bounds of reason, and the
burden is on the party complaining to establish that
discretion was abused.’” (Workman v. Colichman (2019) 33
Cal.App.5th 1039, 1056.) In the context of severing
unconscionable provisions from an arbitration agreement,
“the 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 some
discretion as to whether to sever or restrict the
unconscionable provision or whether to refuse to enforce the
entire agreement[,] . . . it also appears to contemplate the
latter course only when an agreement is “permeated” by
unconscionability.’ [Citation.]” (Roman v. Superior Court
19
(2009) 172 Cal.App.4th 1462, 1477–1478, quoting
Armendariz, supra, 24 Cal.4th at 122.)
Here, the trial court concluded that, although none of
the unconscionable provisions on their own “would
necessitate a conclusion that the agreement is permeat[ed
by] unconscionability . . . taken together, such a conclusion is
required.” Based on the finding that severance was not
possible and unconscionability “permeat[ed]” the Arbitration
Agreement, the trial court refused to enforce it.
We find that the trial court’s determination that the
agreement was permeated by unconscionability, while not
required, was within its discretion. One factor weighing
against severance is when “the arbitration agreement
contains more than one unlawful provision.” (Armendariz,
supra, 24 Cal.4th at 124.) As discussed above, three aspects
of the agreements are unconscionable: the carve-outs
permitting Cambrian to obtain an injunction from the courts
on one-sided terms on matters more significant to Cambrian
while relegating the claims most significant to Alberto to
arbitration, the illegal prohibition on Alberto discussing her
wages, and the waiver of PAGA claims. Taken together, the
trial court could have reasonably concluded that “[s]uch
multiple defects indicate 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.” (Ibid.) Thus, the trial court’s finding
that unconscionability permeated the arbitration agreement
as a whole and its refusal to sever the unconscionable
20
provisions was a reasonable exercise of its discretion. The
trial court was not required to sever the offending provisions
and enforce the remainder of the Arbitration Agreement.
DISPOSITION
The trial court’s order denying arbitration is affirmed.
Respondent is awarded her costs on appeal.
DAUM, J. *
We concur:
COLLINS, J.
CURREY, Acting P.J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to Article VI, section 6, of the California
Constitution.
21
Filed 5/10/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
JENNIFER PLAYU ALBERTO, B314192
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 20STCV41466)
v.
ORDER GRANTING
CAMBRIAN HOMECARE, PUBLICATION
Defendant and Appellant.
THE COURT:*
The opinion in the above-entitled matter filed on April 19, 2023, was
not certified for publication in the Official Reports. Good cause appearing, it
is ordered that the opinion in the above-entitled matter be published in the
official reports.
*CURREY, Acting P.J. COLLINS, J. DAUM, J.**
**Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.