Opinion
B302958
05-05-2021
MARIAM BOUARICH, Plaintiff and Respondent, v. COMERICA MANAGEMENT CO., INC., Defendant and Appellant.
Sheppard, Mullin, Richter & Hampton, Tracey A. Kennedy, Limore Torbati, Timothy T. Kim and Anna M. Stancu for Defendant and Appellant. Merino Yebri, Sam S. Yebri, Alexander M. Merino and Sara Khorasani for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. Los Angeles County Super. Ct. No. 19SMCV00383 APPEAL from an order of the Superior Court of Los Angeles County, Craig D. Karlan, Judge. Affirmed. Sheppard, Mullin, Richter & Hampton, Tracey A. Kennedy, Limore Torbati, Timothy T. Kim and Anna M. Stancu for Defendant and Appellant. Merino Yebri, Sam S. Yebri, Alexander M. Merino and Sara Khorasani for Plaintiff and Respondent.
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INTRODUCTION
Comerica Management Co., Inc. (Comerica) appeals from the trial court's order denying its motion to compel arbitration of and to stay its former employee Mariam Bouarich's wrongful termination and harassment lawsuit filed against it and one of its managing employees, Lilit Gasparyan. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Comerica uses a third party administered online platform to hire new employees. The online platform manages all steps of the new hire process, including "the job application, offer letter, background screening, and the signing of mandatory legal documents." New hires are required to complete the online "onboarding process" before starting their employment with Comerica.
In August 2018, Bouarich applied for a job with Comerica through this online platform. On August 10, 2018, Beverly O. Barriatos at Comerica Talent Acquisition sent Bouarich an email offering her a job as a bank teller at Comerica's Westwood branch. The email attached an offer letter, instructions to review the offer, and a summary of benefits. It advised Bouarich to respond to the job offer through Comerica's online career site. The email included embedded links to the online platform and instructions. The email provides, "The following information includes important details on Comerica Bank's required pre-employment activities. These details include . . . ." The email then lists three items labeled (A) through (C). Under "(A) Upon accepting your offer," the email explains Bouarich "will be immediately prompted to complete the Background Check Application, e-sign the Background Check Disclosure & Authorization form and acknowledge Onboarding Forms." The email does not describe the "Onboarding Forms."
Items (B) and (C) in the email are "Fingerprinting Instructions" and "Drug Screening Instructions," respectively. The email describes the background check, drug screen and fingerprint results as "pre-screening activities" and explains that, once those activities are complete, Bouarich will receive a " 'Welcome' email" confirming her start date. Barriatos invited Bouarich to contact her if she had questions about her offer or benefits, and to contact another individual for questions about the prescreening activities.
The offer letter itself is dated August 8, 2018, from Christopher T. Price at Comerica Bank. The letter offers Bouarich employment as a customer service representative and provides the terms. To accept the offer, Bouarich had to provide her online "acknowledgement of acceptance" through her electronic signature within three business days. Comerica would send Bouarich her first day details "after successful completion of the pre-employment screening process."
Bouarich had to electronically sign several documents as part of the "onboarding" process. First, she completed a background screening and authorization form. She electronically signed the form as directed by both typing in her name and using her "mouse to generate [her] signature."
Bouarich next received a welcome message bearing the Comerica logo from "Comerica Bank Talent Acquisition," asking her to "complete the attached new hire document(s) at your earliest convenience." The first document—a Labor Code section 2810.5 notice to employee, titled "California Labor Code"—appears below the welcome message (Labor Code notice or notice). The Comerica logo appears below that title. The notice states Bouarich's start date is September 10, 2018, and the legal name of her employer is "Comerica Management Company, Inc." At the bottom is an "Acknowledgement of Receipt." (Capitalization omitted.) Although the word "optional" follows the title, in parentheses is the note, "Please complete and submit with your new hire documents to [the talent acquisitions email]." Beverly O. Barriatos is typed in as the employer representative and Bouarich's name appears as the employee. The form notes, "The employee's signature on this notice merely constitutes acknowledgment of receipt."
The top of the following page states, "I acknowledge receipt of the California Labor Code. I Agree." Below that statement the next document, titled, "State of California Arbitration Agreement," begins.
The Labor Code notice and arbitration agreement seem to have the same font size, but the offer letter appears to have a larger font size. The arbitration agreement provides,
Nothing in the record states the font size of the arbitration agreement. Based on our visual inspection, it appears to be about size 8. The type is much smaller than, for example, correspondence between counsel demanding and refusing to arbitrate that is part of the record.
"The parties agree to the fullest extent permitted by law to arbitrate any and all disputes arising out of or relating to: . . . any claims or controversies related to your employment, or termination thereof, whether sounding in contract, tort or statute, including but not limited to any claims of breach of contract, wrongful termination, or age, sex, race, sexual orientation, disability or other discrimination or harassment.
"Each of us waives its, her or his rights to have such disputes tried by a court or jury. The arbitration shall be before a single neutral arbitrator selected by the parties. If the parties are unable to agree on a single neutral arbitrator, the arbitrator shall be selected in accordance with the rules of JAMS/DISPUTE. The arbitrator shall have the power to enter any award that could be entered by a judge of a trial court of the State of California, and only such power, and shall follow the law. . . . The arbitrator shall issue the award in writing . . . . The Agreement to arbitrate . . . shall be in accordance with the procedures established for arbitration in the California Code of Civil Procedure.
"The parties understand that by agreeing to arbitrate their disputes, they are giving up their right to have their disputes heard in a court of law, and, if applicable, by a jury.
"The arbitration and all proceedings, discovery and any arbitration award are confidential. Neither the parties nor the arbitrator(s) shall disclose any information obtained during the course of the arbitration to any person or entity who is not a party to the arbitration unless permitted by law. . . ."
Following the text appears: "Click here to open or download a copy of this agreement. Please provide your acknowledgement of the Arbitration Agreement for State of California New [H]ires." Bouarich's electronic signature—by typing her name—appears after the words, "I understand and agree," "I agree." "Accepted" appears under her typed name. This note follows: "IMPORTANT: [¶] Your onboarding documents will not be submitted until you complete the next step - REVIEW [¶] Select the forward arrow on the bottom of the 'Review' page to submit your onboarding documentation." The metadata shows Bouarich's signature was accepted.
Bouarich worked for Comerica for about three months from September 2018 until December 21, 2018, when Gasparyan, the branch manager, terminated her employment. On February 25, 2019, she filed a complaint in the Los Angeles Superior Court against Comerica, Gasparyan, and Doe defendants for wrongful termination, religious and national origin discrimination and harassment, and other causes of action.
Bouarich brought six of her 11 causes of action under Government Code section 12940, the Fair Employment and Housing Act (FEHA).
In response, Comerica filed a motion to compel arbitration and for a stay on the ground Bouarich's claims were covered by the arbitration agreement. In support of its motion, Comerica submitted the declaration of Catherin Garrett, Comerica's Senior Vice President of HR Operations, Technology and Risk and custodian of records for its personnel files. She attached to her declaration a copy of the arbitration agreement with Bouarich's electronic signature.
Bouarich opposed the motion. She declared that, when she accepted Comerica's offer, she "felt pressure to click on whatever links, and electronically sign whatever legal documents, that appeared on my small laptop screen that Comerica Bank presented me prior to my employment. I was electronically presented with numerous complex legal documents when I applied for employment. When signing these documents, I was never informed nor aware that I was apparently signing an 'arbitration agreement.' Nor did either I have any opportunity to review the documents, including the alleged arbitration agreement, or to consult with an attorney prior to signing them. In order to accept the job offer from Comerica Bank, the August 10, 2018 offer email required me to click and electronically sign what Comerica Bank provided to me. No one from Comerica Bank explained the documents to me." Bouarich denied having "read, reviewed, understood, or accepted any 'arbitration agreement.' " Bouarich argued the court should deny Comerica's motion because the arbitration agreement was (1) procedurally and substantively unconscionable, and (2) not authenticated by a witness with personal knowledge or supported by admissible evidence.
At the July 24, 2019 hearing on Comerica's motion, the trial court noted Bouarich had represented she received an email with various employment documents, but the arbitration agreement was not among them. Accordingly, the court continued the hearing and ordered Comerica to file a supplemental declaration attaching "any and all additional documents provided to Plaintiff as part of her job offer acceptance email dated August 10, 2018, and which constitute the totality of her employment agreement." The court also gave Bouarich leave to file a surreply.
Comerica filed a supplemental declaration from Garrett attaching the documents it processed through its online platform to hire Bouarich. Comerica also provided a printout of the underlying metadata showing when Bouarich interacted with the online platform to accept her offer and complete the onboarding process.
Garrett declared Comerica electronically maintains its employees' personnel files. She accessed Bouarich's personnel file and retrieved physical copies of Bouarich's employment application, offer letter, and other documents she electronically signed or acknowledged through the online platform, including the arbitration agreement.
Garrett declared Bouarich "was required to review, acknowledge, and electronically sign mandatory legal documents," after she completed the background screening and authorization form. She said Bouarich first had to select " 'I agree' " to the Labor Code notice—acknowledging her receipt of it—before she could "proceed[ ] to the next step," which was to "review, acknowledge, and electronically sign" the arbitration agreement.
Garrett explained that, before submitting her electronic signature on either the Labor Code notice or arbitration agreement, the online platform "prompted" Bouarich to " 'review' these legal documents." Garrett declared Bouarich "would not have been able to proceed in the onboarding process without having acknowledged" the Labor Code notice and arbitration agreement "through the online platform."
In her surreply, Bouarich argued the arbitration agreement was not enforceable because (1) it did not identify the parties to the agreement, none of the defendants signed the agreement, and the agreement was not dated; (2) it was "a stand-alone and separate contract" from the notice that named Comerica as her employer; (3) the term "parties" was not defined and could not include Gasparyan; and (4) even if the arbitration agreement was part of the onboarding documents, it "was buried in hardly legible, fine print as part of a series of complex electronic documents that Defendants rushed Plaintiff into signing electronically." Bouarich noted that none of the documents attached to the Garrett declaration—except the arbitration agreement itself—mentioned arbitration.
The court convened a second hearing on October 16, 2019, and took the matter under submission. On November 14, 2019, the court issued its written ruling denying Comerica's motion. The trial court concluded the arbitration agreement was "one-sided" and unenforceable "based on the lack of identification and/or signature of either Defendant," and, thus, unconscionable under Armendariz v. Foundation Health Psychare Services, Inc. (2000) 24 Cal.4th 83, 113, 117 (Armendariz). Comerica timely appealed.
An order denying a motion to compel arbitration is immediately appealable. (Code Civ. Proc., § 1294, subd. (a).)
DISCUSSION
Comerica contends its failure to define "parties" or to sign the arbitration agreement did not render it substantively unconscionable because there was no doubt as to the identities of the parties at the time the contract was formed; the trial court erred by finding the agreement invalid under the unconscionability doctrine without first finding procedural unconscionability; and Gasparyan was able to enforce the arbitration agreement under the doctrines of agency or equitable estoppel.
1. Applicable law and standard of review
Under both California and federal law, a written arbitration agreement is "valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract." (Code Civ. Proc., § 1281; see also 9 U.S.C. § 2 [similar].) "California law, like federal law, favors enforcement of valid arbitration agreements." (Armendariz, supra, 24 Cal.4th at p. 97.) Nevertheless, a trial court may refuse to enforce an arbitration agreement "based on general contract law principles," including if the agreement is "unconscionable or contrary to public policy." (Id. at p. 99.)
The party who moves to compel arbitration "bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense." (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) Because unconscionability is a contract defense, Bouarich bears the burden of proof. (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 911; Civ. Code, § 1670.5, subd. (a) ["If 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."].)
" '[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." (Armendariz, supra, 24 Cal.4th at p. 114.) Both procedural and substantive unconscionability must be present for a court to be able to refuse to enforce a contract or a contract term, including an arbitration agreement, under the doctrine of unconscionability. (Ibid.) "But they need not be present in the same degree." (Ibid.) "[T]he 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." (Ibid.)
" 'On appeal from the denial of a motion to compel arbitration, "we review the arbitration agreement de novo to determine whether it is legally enforceable, applying general principles of California contract law." ' [Citation.] Thus, unconscionability is a question of law we review de novo." (Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 82.) To the extent the trial court's determination turned on the resolution of contested facts, we review those factual determinations for substantial evidence. (Ibid.)
2. The trial court did not err in finding the agreement substantively unconscionable
Comerica first argues it established a valid arbitration agreement existed between the parties. " An essential element of any contract is the consent of the parties, or mutual assent.' [Citation.] Further, the consent of the parties to a contract must be communicated by each party to the other. (Civ. Code, § 1565, subd. 3.) 'Mutual assent is determined under an objective standard applied to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts, and not their unexpressed intentions or understandings.' [Citation.]" (Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal.App.4th 165, 173 (Serafin).)
Bouarich does not seem to contest the existence of a valid arbitration agreement, focusing instead on her defense to its enforcement based on unconscionability. Thus, she does not dispute that her electronic signature appears on the arbitration agreement. Rather, she declared she felt pressure to click on and electronically sign whatever documents Comerica presented to her. She asserts she thus was not aware she was signing an arbitration agreement: she did not read, review, understand, or accept it. Nevertheless, by electronically signing the arbitration agreement, she attested, as the trial court recognized, "I understand and agree," demonstrating her assent to its terms.
Unlike Bouarich, Comerica did not electronically sign the agreement. Indeed, no signature block for its representative's signature appears on the agreement. As the trial court noted, however, a "writing memorializing an arbitration agreement need not be signed by both parties in order to be upheld as a binding arbitration agreement." (Serafin, supra, 235 Cal.App.4th at p. 176.) Rather, a party's agreement to arbitrate "can be based, for example, on 'conduct from which one could imply either ratification or implied acceptance of a such a provision.' " (Ibid. [employer, who drafted arbitration agreement, but did not sign it, evidenced its intent to be bound by the agreement's terms by invoking the arbitration process to recover overpayment made to former employee and moving to compel arbitration of employee's claims against it]; see Civ. Code, § 3388 ["A party who has signed a written contract may be compelled specifically to perform it, though the other party has not signed it, if the latter has performed, or offers to perform it on his part."].)
Comerica presented evidence of its intent to be bound by the agreement: Comerica sent the form agreement to Bouarich through its online portal; the agreement provides that the parties to the agreement "are giving up their right to have their disputes heard in a court of law, and, if applicable, by a jury"; and Comerica petitioned the trial court to compel arbitration under the agreement.
Despite Comerica's evidence that both it and Bouarich assented to the arbitration agreement, we agree with the trial court that it is not enforceable under the doctrine of unconscionability. As the trial court noted, the arbitration agreement repeatedly refers to "the parties" and their mutual agreement to arbitrate their disputes, but does not define "parties." Bouarich is identified as a party to the agreement through her electronic signature, but Comerica's name appears nowhere in the agreement. Thus, our issue is not with Comerica's failure to sign the agreement alone, but with its added failure to "identify with which entity or entities [Bouarich] had agreed to submit" disputes related to her employment to "binding arbitration." (Flores v. Nature's Best Distribution, LLC (2016) 7 Cal.App.5th 1, 9, 11 (Flores) [declining to analyze whether the agreement was unconscionable due to conclusion the parties did not reach agreement "on the matter of submitting any or all of the plaintiff's claims to final and binding arbitration"].)
Comerica argues Flores is irrelevant because it concluded the arbitration agreement could not be enforced based on lack of mutual assent, rather than unconscionability. We nevertheless find the case instructive. There, an employee signed an arbitration agreement that was part of the packet of documents her employer gave to all new hires. (Flores, supra, 7 Cal.App.5th at p. 4.) The agreement stated, "employee and Company agree to submit all . . . disputes to the American Arbitration Association for mediation and binding arbitration." (Ibid.) The Court of Appeal held the employee's signature on the agreement failed to reflect her assent to submit her claims against defendants to binding arbitration. (Id. at p. 9.) The court concluded the agreement was invalid for several reasons. It first noted the body of the agreement did not define the term " 'employee' " or " 'Company.' " The employee's name was printed and signed under " 'Employee,' " but the signature block for " 'Authorized Employer Signature' " was not filled out at all. (Ibid.) Thus, the court concluded the agreement was "ambiguous regarding . . . whether the arbitration provision of the [a]greement . . . applied to any or all of plaintiff's claims against any or all of defendants in the instant action," as well as the rules governing the arbitration. (Id. at p. 11, italics added.)
The agreement also was ambiguous with respect to which disputes were subject to the agreement and which were subject to an arbitration procedure in a referenced collective bargaining agreement, as well as which AAA rules applied. (Flores, supra, 7 Cal.App.5th at p. 10.)
The agreement here is similarly silent as to the counterparty or counterparties with whom Bouarich agreed to arbitrate disputes and who may enforce the agreement—Comerica alone? Comerica's affiliates? Comerica's executives? Other Comerica employees? At a minimum, the ambiguity as to the parties bound by the agreement creates a substantively unconscionable one-sided arbitration agreement, if not a lack of mutual assent. As the trial court explained, a Comerica entity, subsidiary, or beneficiary could avoid arbitrating its claims against Bouarich, and instead sue her in court, because it is neither a defined party nor a signatory. Conversely, while a Comerica affiliate could force Bouarich—as a signatory to the agreement—to arbitrate her claims, she could not do the same. The agreement thus lacks the level of mutuality required for an employer to impose an agreement to arbitrate as a condition of employment. (See Armendariz, supra, 24 Cal.4th at pp. 117-118 [holding it "unfairly one-sided for an employer with superior bargaining power to impose arbitration on the employee as plaintiff but not to accept such limitations when it seeks to prosecute a claim against the employee"].)
Comerica contends California law does not require all parties to be "expressly identified" or for all parties to sign an agreement for it to be enforceable. The cases on which Comerica relies for this proposition do not involve contracts that failed to do both, however: In Bernard v. Walkup (1969) 272 Cal.App.2d 595, 599-600, 602, the court found an attorney bound by a written contingent fee contract with the plaintiff in a legal malpractice case where the attorney said he did not sign the agreement until more than two years after he allegedly committed malpractice, but before the four-year limitations period for written contracts expired. The contract there was on letterhead identifying the attorney. (Id. at p. 598.) In Performance Plastering v. Richmond American Homes of California, Inc. (2007) 153 Cal.App.4th 659, 668, the defendant, a builder, argued settlement agreements it entered into with its subcontractor were void because the subcontractor did not sign them. The court noted there was no allegation the settlement agreements were not fully executed, and the builder had accepted payment under the agreements. The settlement agreements at issue there also clearly identified the builder and subcontractor as parties to the agreements. (Id. at p. 666.) In Fagelbaum & Heller LLP v. Smylie (2009) 174 Cal.App.4th 1351, 1364-1365, the defendant client contended the arbitration clause in the retainer agreement he and the plaintiff law firm signed was unenforceable because the other clients named in the agreement had not signed it. The court concluded the client did not prove signatures of all the clients were contemplated as a condition precedent to the validity of the contract. His signature bound him to the agreement and arbitration provision. (Id. at p. 1365.)
Comerica notes no published case has found an arbitration agreement to be substantively unconscionable because the name of the employer or its representative's signature is missing. Yet, Comerica cites no authority where a court has enforced an arbitration agreement that failed both to name the parties to it and to include the employer's signature.
Finally, People v. Bradford (1955) 130 Cal.App.2d 606—which Comerica cites for the proposition that an agreement is "enforceable even if all parties are not expressly identified where 'there is no doubt as to the existence of the parties to [the] contract' "—is inapposite. That case involved a defendant's appeal from his conviction for violating section 11500 of the Health and Safety Code that required the jury to find a contract to sell heroin existed. (Bradford, at p. 608.) The court concluded substantial evidence supported the jury's finding because the evidence left "no doubt" that the defendant was the seller and an informant was the buyer (or an intermediary for an undercover officer) even though the informant's name was not given into evidence. (Id. at pp. 608-609.)
Comerica also argues there is "no doubt" it is the counterparty to the agreement because, before Bouarich signed it, she "received the name of the counterparty to the Agreement, i.e., her legal employer" through the Labor Code notice. Bouarich may have acknowledged receipt of the Labor Code notice identifying Comerica as her legal employer, but the arbitration agreement does not refer to that notice. " ' " 'For the terms of another document to be incorporated into the document executed by the parties the reference must be clear and unequivocal.' " ' " (R. W.L. Enterprises v. Oldcastle, Inc. (2017) 17 Cal.App.5th 1019, 1027-1028 (R.W.L. Enterprises).)
That is not the case here. The message to Bouarich attaching the Labor Code notice and arbitration agreement did not describe those documents. It merely asked Bouarich to "complete the attached new hire document(s)." The welcome email, notice, and arbitration agreement are printed as a single, two-page exhibit, and the arbitration agreement is separated from Bouarich's acknowledgement of the Labor Code notice by a dotted line. According to Garrett, however, Bouarich had to select "I agree" at the end of the notice before she could "proceed[ ] to the next step"—the arbitration agreement. We therefore can infer that, when viewed through the online platform, the notice and arbitration agreement did not appear as a single, multi-page document. Rather, only after acknowledging the notice by selecting "I agree," was Bouarich directed to the arbitration agreement.
Moreover, neither document refers to the other. Nor does the arbitration agreement mention Bouarich's "employer," much less her "legal employer." Certainly, on this record, the arbitration agreement cannot be said to " ' "guide[ ] the reader" ' " to the Labor Code notice or vice versa. (R.W.L. Enterprises, supra, 17 Cal.App.5th at p. 1028.) Accordingly, we cannot conclude the Labor Code notice supplied the definition of "the parties" in the arbitration agreement merely because Bouarich purportedly acknowledged the notice "just before" she electronically signed the agreement. Comerica's failure to define the parties bound to the agreement renders its terms " ' " ' "unreasonably favorable" ' " ' " to it, the more powerful party. (Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1243 (Baltazar).)
3. The evidence supports the trial court's implied finding of procedural unconscionability
Comerica also contends the trial court's order must be reversed because it did not find the agreement procedurally unconscionable. "California's statutory scheme regarding contractual arbitration . . . requires a statement of decision for any ruling denying a motion to compel arbitration if a party requests one." (Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 970.) Nothing in the record suggests Comerica asked for a statement of decision, or the court intended its written ruling as one. As a result, we apply "the doctrine of implied findings and presume[ ] the trial court made all necessary findings supported by substantial evidence." (Ibid.) As we have discussed, both procedural and substantive unconscionability must be present for a court to refuse to enforce an arbitration agreement. Because Bouarich presented evidence that the agreement had some degree of procedural unconscionability, we can infer the trial court impliedly found it was.
Contrary to Comerica's assertion, "procedural unconscionability requires oppression or surprise." (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 247, italics added.) " ' "Oppression occurs where a contract involves lack of negotiation and meaningful choice, surprise where the allegedly unconscionable provision is hidden within a prolix printed form." ' " (Ibid.) A contract of adhesion is " ' "a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it." ' " (Davis v. Kozak (2020) 53 Cal.App.5th 897, 906 (Davis).) Contracts of adhesion " 'contain a degree of procedural unconscionability even without any notable surprises, and "bear within them the clear danger of oppression and overreaching." ' " (Baltazar, supra, 62 Cal.4th at p. 1244.) " 'Arbitration contracts imposed as a condition of employment are typically adhesive.' " (Davis, at p. 906.) Our Supreme Court has "instructed that courts must be 'particularly attuned' to this danger in the employment setting, where 'economic pressure exerted by employers on all but the most sought-after employees may be particularly acute.' " (Baltazar, at p. 1244.)
Bouarich presented evidence that the arbitration agreement here was a contract of adhesion, and thus bore at least some degree of procedural unconscionability. It was a form agreement included among several other employment documents that Comerica required Bouarich to sign as a condition of her employment and was printed in small font. Bouarich also declared she did not have an opportunity to negotiate the terms of the arbitration agreement—she was required to electronically sign each document she clicked on in order to accept Comerica's job offer. The evidence also demonstrates Bouarich had little time to read and consider the agreement. And, there is no evidence Bouarich actually had the ability to ask anyone at Comerica about the agreement before signing it. In any event, Comerica does not contend Bouarich could have opted out of the arbitration agreement or negotiated its terms. (Davis, supra, 53 Cal.App.5th at p. 907 [explaining "a complaining party need not show it tried to negotiate standardized contract terms to establish procedural unconscionability"].) Comerica itself describes the arbitration agreement as a "mandatory legal document[ ]" that all new hires had to complete as part of the "onboarding process." In other words, Comerica presented the arbitration agreement on a take-it-or-leave-it basis. Bouarich therefore established at least a "modest degree of procedural unconscionability." (Nguyen v. Applied Medical Resources Corp. (2016) 4 Cal.App.5th 232, 248 [alone, an arbitration agreement " 'presented as a "take-it-or-leave-it" contract of adhesion in the employment context' " establishes " 'only a modest degree of procedural unconscionability' "].)
Comerica refers to the three business days—from the date of the offer, Wednesday, August 8, 2018, until Monday, August 13, 2018—Bouarich had to accept her job offer. Yet, the offer was not emailed to her until Friday, August 10, 2018, leaving her with only the weekend to complete the onboarding process. And, while the email and offer letter advised Bouarich to whom to direct her questions about the offer, benefits, and prescreening activities, they did not tell Bouarich that she could ask questions about the arbitration agreement or to whom to direct those questions. They did not mention the arbitration agreement at all. Certainly, Bouarich would be hard-pressed to find someone over the weekend to speak to at Comerica's administrative offices or to find an attorney to help her.
The evidence does not demonstrate Comerica engaged in sharp practices or that additional elements of surprise exist to find a heightened degree of procedural unconscionability, however. (Baltazar, supra, 62 Cal.4th at p. 1244 [degrees of procedural unconscionability exist where " '[c]ontracts of adhesion that involve surprise or other sharp practices lie' " at the high end of the spectrum].) The agreement itself was not complex. It consisted of only a few paragraphs, and—in a stand-alone paragraph—provided "[t]he parties underst[ood] that by agreeing to arbitrate their disputes, they are giving up their right to have their disputes heard in a court of law and, if applicable, by a jury."
Bouarich contends the agreement's failure to identify the applicable arbitration rules clearly or to provide a copy of them to her "adds another layer of procedural unconscionability." Our Supreme Court has held the failure to attach applicable arbitration rules does not itself create a greater degree of procedural unconscionability where the employee does not contend he or she was surprised by something hidden in the rules or the rules were unfair. (Baltazar, supra, 62 Cal.4th at p. 1246.) We thus reject Bouarich's contention to the extent it is based on the mere fact Comerica did not provide her with the applicable arbitration rules. We agree the agreement is unclear as to what arbitration rules apply, however. Comerica asserts the JAMS rules apply. The agreement provides that, if the parties cannot agree, a neutral arbitrator "shall be selected in accordance with the rules of JAMS/DISPUTE," but does not state the arbitration will be conducted in accordance with those rules. Rather, the agreement provides it "shall be in accordance with the procedures established for arbitration in the California Code of Civil Procedure." Although unclear, we cannot say this ambiguity, without more, creates unfair surprise. (Cf. Flores, supra, 7 Cal.App.5th at pp. 10-11 [finding no mutual assent to arbitration where agreement failed to identify which set of AAA rules applied to plaintiff's claims and differing versions existed].)
Nevertheless, given the one-sided nature of the agreement, the modest degree of procedural unconscionability present here was sufficient for the trial court to find the agreement unenforceable. (Davis, supra, 53 Cal.App.5th at p. 905 ["the more substantively one-sided the contract term, the less evidence of procedural unconscionability required to conclude that the term is unenforceable"].)
Because we conclude the arbitration agreement was unenforceable, and there is no evidence Bouarich agreed to arbitrate disputes with Gasparyan, we need not determine whether the trial court abused its discretion when it alternatively denied the motion under section 1281.2, subdivision (c) of the Code of Civil Procedure.
DISPOSITION
The order denying Comerica's motion to compel arbitration is affirmed. Mariam Bouarich is to recover her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J. We concur:
LAVIN, Acting P. J.
Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.