Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS in mandate, Super. Ct. No. BC410401, Maureen Duffy-Lewis, Judge.
Law Offices of Joseph M. Lovretovich, Joseph M. Lovretovich, Paul J. Kang and Ellen E. Cohen for Petitioner.
No appearance for Respondent.
Jackson Lewis, Yvonne Arvanitis Fossati and Dean A. Rocco for Real Parties in Interest.
CHANEY, J.
Plaintiff, John Henderson, filed a complaint against his employer, Macquarie Cook Energy, LLC (Macquarie), and two superiors for wrongful termination and related claims. The trial court ordered that all of the claims be arbitrated in accordance with an agreement plaintiff signed as a condition of employment. In a petition for writ of mandate challenging the trial court’s order, plaintiff asserts the arbitration agreement failed to satisfy minimum standards for enforceability set forth in Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 113-127 (Armendariz) and was unconscionable. We conclude the trial court properly granted Macquarie’s motion to compel arbitration and therefore deny the petition.
BACKGROUND
The complaint provides us with the basic factual background of this case. Plaintiff began working for Macquarie in 2005 as an “Executive.” He claims that beginning in 2006 he was subjected to harassment, discrimination and humiliation by a supervisor on the basis of his sexual orientation. After making several informal complaints, plaintiff filed a formal written complaint with Macquarie’s equal employment opportunity office. Macquarie subsequently transferred the supervisor to London but took no further action. Plaintiff was then subjected to retaliation and, in January 2009, his employment was terminated for pretextual reasons.
As a condition of employment, plaintiff had signed an arbitration agreement entitled “Arbitration Agreement For Employees of Macquarie Holdings (USA) Inc.” The agreement began, “Dear John: While Macquarie hopes that employment disputes with its Employees will not occur, Macquarie believes that where such disputes do arise, it is in the mutual interest of all concerned to handle them promptly and with a minimum of disturbance to the operations of Macquarie’s businesses and the lives of its Employees.”
The agreement described the claims subject to arbitration: “Under the [arbitration] Procedure, subject to certain limited exceptions, all disputes that may arise from your employment with Macquarie, the terms and conditions of your employment or the termination of your employment must (after good faith attempts to resolve the dispute internally through Macquarie management channels) be submitted for resolution by mandatory arbitration. This applies to issues initiated by employees and issues initiated by Macquarie.”
The agreement stated it was a condition of employment: “In agreeing to our mutual agreement to submit employment disputes for resolution by arbitration, you acknowledge that such agreement is given in exchange for rights to which you are not otherwise entitled—namely, your employment as a Macquarie Employee and the more expeditious resolution of such disputes.”
The agreement described a pre-arbitration dispute resolution procedure: “As a prerequisite for submitting an employment dispute to arbitration, both you and Macquarie agree to make good-faith efforts at resolving any dispute internally on an informal basis through Macquarie management channels appropriate to the circumstances of that individual dispute, including, but not limited to the Human Resources Manager.”
The agreement identified the controlling rules, including rules on discovery, confidentiality, and the selection of a neutral arbitrator: “Arbitrations under this policy will be conducted under the Employment Dispute Resolution Rules of the American Arbitration Association (AAA), with the proviso that the arbitration shall be strictly confidential. These Rules, incorporated by reference herein, include (but are not limited to) the procedures for the joint selection of an impartial arbitrator and for the hearing of evidence before the arbitrator and a written decision. The arbitrator shall have the authority to allow for appropriate discovery and exchange of information prior to a hearing, including (but not limited to) production of documents, information requests, depositions, and subpoenas. Discovery shall be conducted pursuant to the AAA rules. A copy of the complete AAA Employment Dispute Resolution Rules may be obtained from the AAA as Administrator. You may also access the Rules from AAA’s website at http://www.adr.org.”
The agreement described how the costs of arbitration would be allocated: “The parties agree that Macquarie will pay all of the AAA administrative fees and the arbitrator’s fees and expenses. All other costs and expenses associated with the arbitration, including, without limitation, the party’s respective attorneys’ fees, shall be borne by the party incurring the expense.”
Finally, the agreement contains a severance clause that reads, in pertinent part, “If a court or arbitrator should determine that any portion of this agreement is overbroad or unreasonable, such provision shall be given effect to the maximum extent possible by narrowing the provision found to be overbroad or unreasonable.”
Macquarie asks this court to exercise this power.
The agreement was set forth in a stand-alone, three-page, single-spaced document in 10-point type. No copy of the AAA rules was attached.
Plaintiff signed the agreement, acknowledging that he “carefully read th[e] agreement,” understood and agreed to its terms, and entered into the agreement voluntarily. The agreement contained a signature line for Macquarie’s representative, but that line was apparently never signed.
Plaintiff’s complaint alleged five causes of action for violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and one cause of action for wrongful termination in violation of public policy. The complaint sought general and special damages, punitive damages, and the recovery of attorney fees and costs of suit.
Macquarie moved to compel arbitration pursuant to Code of Civil Procedure section 1281 et seq. Plaintiff opposed. The only substantive evidence provided by either side consisted of the agreement and its authentication. The trial court granted the motion, finding the agreement involved “no adhesion,” a “minimal” element of procedural unconscionability, and no substantive unconscionability.
Plaintiff then filed this petition for writ of mandate, arguing the agreement fails to provide for a neutral arbitrator, unfairly restricts discovery and limits remedies, and is procedurally and substantively unconscionable. After requesting informal opposition to the petition, we issued an order to show cause as to why the requested relief should not be granted. Macquarie indicated it intended to stand on its informal opposition. Plaintiff filed a reply.
DISCUSSION
A. Standard of Review
A petition to compel arbitration based on a written arbitration agreement will be granted unless grounds exist to revoke the agreement. (Code Civ. Proc., §§ 1281, 1281.2, subd. (b).) “The determination of arbitrability is a legal question subject to de novo review. [Citation.] We will uphold the trial court’s resolution of disputed facts if supported by substantial evidence. [Citation.] Where, however, there is no disputed extrinsic evidence considered by the trial court, we will review its arbitrability decision de novo. [Citation.]” (Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1277.)
Here, because no extrinsic evidence was presented by either side, we review the trial court’s ruling de novo.
B. General Principles
California law favors the enforcement of arbitration agreements. Any “doubts concerning the scope of arbitrable issues are to be resolved in favor of arbitration. [Citations.]” (Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 323.) Nevertheless, pursuant to “general contract law principles,” California courts may invalidate arbitration agreements when they contain provisions that are “unconscionable or contrary to public policy.” (Armendariz, supra, 24 Cal.4th at p. 99.)
An employer-employee arbitration agreement cannot be made to serve as a vehicle for the waiver of statutory or common law public rights. (Armendariz, supra, 24 Cal.4th at p. 101.) “[T]o ensure that mandatory arbitration agreements are not used to curtail an employee’s public rights, the California Supreme Court in Armendariz set forth five minimum requirements (the Armendariz requirements). Arbitration agreements in the employer-employee context must provide for: (1) neutral arbitrators, (2) more than minimal discovery, (3) a written award, (4) all types of relief that would otherwise be available in court, and (5) no additional costs for the employee beyond what the employee would incur if he or she were bringing the claim in court. [Citations.]” (Fitz v. NCR Corp. (2004) 118 Cal.App.4th 702, 712-713 (Fitz).)
Additionally, an arbitration agreement may be invalidated if it is found to be unconscionable. (See Civ. Code, § 1670.5, subd. (a) [“[i]f the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result”]; see Armendariz, supra, 24 Cal.4th at pp. 113-114.) The doctrine of unconscionability includes both procedural and substantive elements. (Id. at p. 114.) Procedural unconscionability focuses on “‘“oppression”’” or “‘“surprise”’” due to unequal bargaining power. (Ibid.) “‘The procedural element of an unconscionable contract generally takes the form of a contract of adhesion, “‘“‘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.’”’”... [¶] Substantively unconscionable terms may take various forms, but may generally be described as unfairly one-sided.’ [Citation.]” (Discover Bank v. Superior Court (2005) 36 Cal.4th 148, 160.) Both procedural and substantive elements of unconscionability must be present for a court to refuse to enforce an arbitration contract or clause, though they need not be present in the same degree. (Ibid.) “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.” (Ibid.)
If only a portion of a contract is illegal or unconscionable, the court may refuse to enforce the entire contract, refuse to enforce only the offending provision, or so limit the application of the provision as to avoid any illegal or unconscionable result. (Civ. Code, § 1670.5, subd. (a); Armendariz, supra, 24 Cal.4th at p. 124.) Although Civil Code section 1670.5 “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.” (Armendariz, at p. 122.) “Courts are to look to the various purposes of the contract. If the central purpose of the contract is tainted with illegality, then the contract as a whole cannot be enforced. If the illegality is collateral to the main purpose of the contract, and the illegal provision can be extirpated from the contract by means of severance or restriction, then such severance and restriction are appropriate.” (Id. at p. 124 [holding that an arbitration agreement containing more than one unlawful clause could be permeated by an unlawful purpose].)
C. Analysis
1. Arbitrator Neutrality
Neutral arbitration “is essential to ensuring the integrity of the arbitration process.” (Armendariz, supra, 24 Cal.4th at p. 103.) Plaintiff argues the arbitration agreement does not ensure a neutral arbitrator because Macquarie has a “repeat player” advantage, i.e., an impediment to neutral arbitration in cases where the employer routinely appears before the same arbitration panel and provider. The argument is meritless.
The arbitration agreement provides for the “joint selection of an impartial arbitrator.” It also provides that the procedures that shall govern arbitration are those contained in the Employment Dispute Resolution Rules of the AAA. The applicable rules provide for the appointment of a neutral arbitrator. Rule 12(c) provides: “If the parties have not appointed an arbitrator and have not provided any method of appointment, the arbitrator shall be appointed in the following manner: [¶] 1. Shortly after it receives the Demand, the AAA shall send simultaneously to each party a letter containing an identical list of names of persons chosen from the Employment Dispute Resolution Roster. The parties are encouraged to agree to an arbitrator from the submitted list and to advise the AAA of their agreement. [¶] 2. If the parties are unable to agree upon an arbitrator, each party to the dispute shall have 15 days from the transmittal date in which to strike names objected to, number the remaining names in order of preference, and return the list to the AAA. If a party does not return the list within the time specified, all persons named therein shall be deemed acceptable. [¶] 3. From among the persons who have been approved on both lists, and in accordance with the designated order of mutual preference, the AAA shall invite the acceptance of an arbitrator to serve. If the parties fail to agree on any of the persons named, or if acceptable arbitrators are unable to act, or if for any other reason the appointment cannot be made from the submitted list, the AAA shall have the power to make the appointment from among other members of the panel without the submission of additional lists.” (AAA, National Rules for Resolution of Employment Disputes (June 1, 2009) rule 12(c).)
The AAA’s rules are “generally regarded to be neutral and fair.” (Lagatree v. Luce, Forward, Hamilton & Scripps (1999) 74 Cal.App.4th 1105, 1126–1127.)
Though the Supreme Court has acknowledged that an employer that repeatedly participates in arbitration may enjoy advantages (Armendariz, supra, 24 Cal.4th at p. 115), repeated arbitration does not, without more, call into question the potential for arbitration to be neutral. (See Mercuro v. Superior Court (2002) 96 Cal.App.4th 167, 178, fn. omitted [“While [the California] Supreme Court has taken notice of the ‘repeat player effect,’ the court has never declared this factor renders the arbitration agreement unconscionable per se.”].) In any event, plaintiff submitted no evidence, either in his opposition to Macquarie’s motion below or his petition here, indicating Macquarie repeatedly participates in arbitration. The record is therefore devoid of any indication that Macquarie would enjoy any advantage or that arbitration would otherwise be non-neutral.
2. Adequate Discovery
Plaintiff argues the arbitration agreement impermissibly restricts discovery. We disagree.
“[A] limitation on discovery is one important component of the ‘simplicity, informality, and expedition of arbitration.’ [Citation.]” (Armendariz, supra, 24 Cal.4th at p. 106, fn. 11.) However, though not entitled to a “full panoply of discovery,” employees are entitled to sufficient discovery to vindicate their discrimination claims. (Id. at pp. 105-106; Fitz, supra, 118 Cal.App.4th at p. 716; Mercuro v. Superior Court, supra,96 Cal.App.4th at p. 184.)
The agreement provides that “[t]he arbitrator shall have the authority to allow for appropriate discovery and exchange of information prior to the hearing, including (but not limited to) production of documents, information requests, depositions, and subpoenas.” Additionally, it provides that “[d]iscovery shall be conducted pursuant to the AAA rules.” Under those rules, the arbitrator has authority “to order such discovery, by way of deposition, interrogatory, document production, or otherwise, as the arbitrator considers necessary to a full and fair exploration of the issues in dispute, consistent with the expedited nature of arbitration.” (AAA, National Rules for Resolution of Employment Disputes (June 1, 2009) rule 9.)
The agreement thus affords plaintiff the opportunity to conduct meaningful discovery sufficient to vindicate his claims.
3. Limitation of Remedies
The Legislature has provided that a trial court, in its discretion, may award reasonable attorney fees and costs to a party that prevails in a FEHA action. (Gov. Code, § 12965, subd. (b) [“In actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney’s fees and costs....”].) An arbitration agreement may not limit this statutory entitlement to attorney fees. (Armendariz, supra, 24 Cal.4th at p. 103.)
As stated, the agreement here affirms that “[t]he arbitrator shall have the power to award all remedies that could be awarded by a court or administrative agency in accordance with the governing and applicable substantive law relating to covered claims.” But it also provides that “[t]he parties agree that Macquarie will pay all of the AAA administrative fees and the arbitrator’s fees and expenses. All other costs and expenses associated with the arbitration, including, without limitation, the party’s respective attorneys’ fees, shall be borne by the party incurring the expense.”
Attorney fees and costs are “remedies” for our purposes. (See Armendariz, supra, 24 Cal.4th at p. 103 [“an arbitration agreement may not limit statutorily imposed remedies such as punitive damages and attorney fees”].) Plaintiff argues the second quoted provision impermissibly limits the availability of attorney fees and costs if he prevails. Essentially ignoring this provision, Macquarie argues the first provision, which authorizes the arbitrator to award all remedies that could be awarded by a court according to applicable law, entitles the prevailing party to attorney fees available under the FEHA.
We agree with plaintiff that the second provision impermissibly limits the remedies available to plaintiff under the FEHA if he prevails. It is therefore contrary to public policy and unlawful. But we also agree with Macquarie that the first provision authorizes the award of attorney fees. The two provisions are thus contradictory and mutually incompatible. That does not mean the agreement’s treatment of attorney fees on the whole is unlawful, only that an ambiguity exists.
To the extent the attorney fee provision controls, it is severable. As will be seen, the arbitration agreement contains only this one unlawful provision, which is nullified by a contradictory provision elsewhere. The provision concerns only one remedy, not the scope of arbitration. Severance would remove the ambiguity and any unlawful taint from the agreement with minimal impact.
4. The Agreement is not Procedurally Unconscionable
Plaintiff argues the arbitration agreement is procedurally unconscionable because it was part of an employment contract prepared by Macquarie and presented to plaintiff on a take-it-or-leave-it basis, and because it referred to AAA rules but did not attach them. The arguments are meritless.
As discussed above, procedural unconscionability focuses on oppression and surprise in the making of the agreement. “Oppression results from unequal bargaining power, when a contracting party has no meaningful choice but to accept contract terms. Unfair surprise results from misleading bargaining conduct or other circumstances indicating that party’s consent was not an informed choice.” (Dotson v. Amgen, Inc. (Jan. 21, 2010, B212965) ___Cal.App. ___ [2010 Cal.App. LEXIS 129*6-*7]; Kinney v. United HealthCare Services, Inc. (1999) 70 Cal.App.4th 1322, 1327, 1329 [when an employer required the employee to acknowledge consent to terms of an arbitration agreement as a condition of continued employment, employee had no opportunity to negotiate terms].) Adhesion contracts in the employment context typically contain some measure of procedural unconscionability. (See, e.g., Armendariz, supra, 24 Cal.4th at p. 115 [“in the case of preemployment arbitration contracts, the economic pressure exerted by employers on all but the most sought-after employees may be particularly acute, for the arbitration agreement stands between the employee and necessary employment, and few employees are in a position to refuse a job because of an arbitration requirement”].) But “[t]he adhesive nature of the contract will not always make it procedurally unconscionable. When bargaining power is not grossly unequal and reasonable alternatives exist, oppression typically inherent in adhesion contracts is minimal. [Citations.]” (Roman v. Superior Court (2009) 172 Cal.App.4th 1462, 1470, fn. 2 (Roman).)
Here, the trial court found no adhesion in the arbitration agreement. Though plaintiff argues he had no opportunity to negotiate the terms of the agreement nor any meaningful choice in accepting them, he adduces no evidence supporting these assertions and the face of the agreement provides none. To the contrary, plaintiff’s status as a newly hired “executive” implies he had at least a modicum of negotiating power, and the informal opening (“Dear John”) suggests the agreement was not a boilerplate form attached to every employment contract.
Assuming the arbitration agreement really was presented with no opportunity for negotiation, any procedural unconscionability is minimal. The agreement was not buried in a lengthy employment contract, but was rather a separate, three-page document conspicuously entitled “Arbitration Agreement for Employees of Macquarie Holdings (USA) Inc.” Plaintiff signed the last page, indicating he had carefully read the agreement and understood and agreed to its terms. (Cf. Higgins v. Superior Court (2006) 140 Cal.App.4th 1238, 1252–1253 [procedural unconscionability high when arbitration provision was buried in 24-page, single-spaced document] and, “[a]lthough petitioners were required to place their initials in boxes adjacent to six other paragraphs, no box [for initials] appeared next to the arbitration provision”].) The agreement is clear, concise, and, except for the remedies and provisions discussed above, unambiguous. Nor does plaintiff assert that his decision to accept arbitration as a condition of employment was rushed or coerced. In such circumstances, the courts find minimal procedural unconscionability. (See, e.g., Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1292 [“... ‘the compulsory nature of a predispute arbitration agreement does not render the agreement unenforceable on grounds of coercion or for lack of voluntariness’”].)
Citing Fitz, supra, 118 Cal.App.4th 702 and Harper v. Ultimo (2003) 113 Cal.App.4th 1402, plaintiff argues the arbitration agreement is procedurally unconscionable because it incorporates the rules of the AAA without attaching them. These cases do not assist him. In Fitz, the arbitration agreement at issue had a discovery provision that was materially inconsistent with the discovery provision in the AAA rules. (Id. at p. 721.) The court held that allowing unattached AAA arbitration rules to trump the inconsistent rules in the agreement would fail to provide employees with adequate notice of the applicable rules of discovery. (Id. at p. 721.) In Harper v. Ultimo the arbitration provision at issue incorporated the arbitration rules of the Better Business Bureau (BBB), which precluded the consumer from obtaining damages. (Id. at p. 1405.) The court refused to enforce the arbitration provision because a consumer would be surprised by the discrepancy between the arbitration agreement and the (unattached) BBB rules. (Id. at pp. 1406–1407.)
Here, plaintiff does not argue that discovery provisions in the arbitration agreement are inconsistent with those found in the AAA arbitration rules or that remedies available under the agreement are inconsistent with those made available under the AAA. He argues only that reference to unattached AAA rules renders an arbitration agreement procedurally unconscionable per se. We find no authority supporting the argument and he cites to none. As noted, the agreement indicates the AAA rules can be obtained from the AAA and gives the address where they can be found online. Nothing indicates reference to the rules creates any surprise.
5. The Agreement is not Substantively Unconscionable
“[P]rocedural unconscionability alone does not render an agreement unenforceable. There must also be some measure of substantive unconscionability. [Citations.]” (Roman, supra, 172 Cal.App.4th at p. 1471.) Plaintiff first argues the arbitration agreement is substantively unconscionable because it requires that “the arbitration shall be strictly confidential.” (Ex. E., p. 81.) The argument is meritless.
Confidentiality provisions in arbitration agreements are not per se unconscionable. (See Woodside Homes of Cal., Inc. v. Superior Court (2003) 107 Cal.App.4th 723, 732 [“nothing unreasonable or prejudicial” about confidentiality provision in a contract].) Under the AAA rules, “[t]he arbitrator shall maintain the confidentiality of the arbitration and shall have the authority to make appropriate rulings to safeguard that confidentiality, unless the parties agree otherwise or the law provides to the contrary.” (AAA, National Rules for Resolution of Employment Disputes (June 1, 2009) rule 23.) Further, section 1281.9 of the Code of Civil Procedure, which provides that “[i]n order to preserve confidentiality,” a proposed neutral arbitrator need not disclose the names of any party in prior arbitration, contemplates that at least some part of arbitration may be kept confidential. (Id. at subd. (a).)
Plaintiff does not argue that the confidentiality provision is per se unconscionable, and he admits it is facially mutual. But citing Ting v. AT&T (9th Cir. 2003) 319 F.3d 1126(Ting) and Davis v. O’Melveny & Myers (9th Cir. 2007) 485 F.3d 1066(Davis), he argues the provision favors Macquarie by effectively precluding him “from having access to precedent to obtain needed information to build a case against the company.” The cases are inapposite.
In Ting, a class action lawsuit on behalf of over 7 million residential telephone customers, at issue was a provision in long-distance telecommunication carrier contracts that required “‘[a]ny arbitration [to] remain confidential.’” (319 F.3d at p. 1151.) The court concluded the provision was unconscionable because “plaintiffs are unable to mitigate the advantages inherent in being a repeat player. This is particularly harmful here, because the contract at issue affects seven million Californians. Thus, AT&T has placed itself in a far superior legal posture by ensuring that none of its potential opponents have access to precedent while, at the same time, AT&T accumulates a wealth of knowledge on how to negotiate the terms of its own unilaterally crafted contract. Further, the unavailability of arbitral decisions may prevent potential plaintiffs from obtaining the information needed to build a case of intentional misconduct or unlawful discrimination against AT&T.” (Id. at p. 152.) Ting has no application here because plaintiff makes no showing that Macquarie is a “repeat player” or, assuming it is, that arbitration confidentiality will put it in a superior legal posture.
In Davis, supra,485 F.3d 1066,the confidentiality provision “preclude[d] even mention to anyone ‘not directly involved in the mediation or arbitration’ of ‘the content of the pleadings, papers, orders, hearings, trials, or awards in the arbitration’ or even ‘the existence of a controversy and the fact that there is a mediation or an arbitration proceeding.’” (Id. at p. 1078.) The court concluded the provision was improper, reasoning that “[s]uch restrictions would prevent an employee from contacting other employees to assist in litigating (or arbitrating) an employee’s case. An inability to mention even the existence of a claim to current or former O’Melveny employees would handicap if not stifle an employee’s ability to investigate and engage in discovery. The restrictions would also place O’Melveny ‘in a far superior legal posture’ by preventing plaintiffs from accessing precedent while allowing O’Melveny to learn how to negotiate and litigate its contracts in the future. [Citation.] Strict confidentiality of all ‘pleadings, papers, orders, hearings, trials, or awards in the arbitration’ could also prevent others from building cases. [Citation.]” (Id. at p. 1078.) The confidentiality provision here calls only for confidentiality of the arbitration itself, not of the content of pleadings, papers, orders, hearings, trials or awards. Nothing in the record indicates plaintiff would be prevented from obtaining assistance in the arbitration or stifled in his ability to investigate and engage in discovery.
Plaintiff next argues the requirement that the employee first submit to an employer-controlled dispute resolution is unconscionable. The Agreement provides that “[a]s a prerequisite for submitting an employment dispute to arbitration, both [plaintiff] and Macquarie agree to make good-faith efforts at resolving any dispute internally on an informal basis through Macquarie management channels appropriate to the circumstances of that individual dispute, including, but not limited to the Human Resources Manager.”
A unilateral, pre-arbitration dispute resolution requirement may be unconscionable if it gives the employer a “‘‘free peek”’” at the [employee’s] case, thereby obtaining an advantage if and when plaintiff were to later demand arbitration.” (Nyulassy v. Lockheed Martin Corp., supra, 120 Cal.App.4th at p. 1283). In Nyulassy, upon which plaintiff relies, the arbitration agreement required the employee “to submit to discussions with his supervisors in advance of, and as a condition precedent to, having his dispute resolved through binding arbitration.” (Id. at p. 1282.) But because the arbitration agreement was unilateral—the employee was required to arbitrate his disputes against his employer but the employer was not required to arbitrate its disputes against him—the dispute resolution requirement was likewise unilateral. (Id. at pp. 1282-1283.)
Nothing in our record indicates the pre-arbitration dispute resolution requirement is unilateral or unfair. On the contrary, the provision “present[s] a laudable mechanism for resolving employment disputes informally.” (Nyulassy v. Lockheed Martin Corp., supra, 120 Cal.App.4th at p. 1282.)
Finally, plaintiff argues the arbitration agreement is substantively unconscionable because Macquarie did not sign it. The argument is without merit. In the employment context, a “written agreement” to arbitrate does not require that the writing memorializing the arbitration agreement be signed by the employer and its employee. On the contrary, as we explained in Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, general principles of contract law are applied to determine whether the parties entered a binding agreement to arbitrate, and such an agreement may be shown by an employee’s express acceptance of an agreement or may be implied by the parties’ conduct. (Id. at p. 420.) In Craig, substantial evidence established that the employer hired plaintiff in 1981, that it adopted a dispute resolution program in 1993, that plaintiff received a brochure explaining the employer’s program (including terms for the arbitration of legal disputes) in 1993 and 1994, and that plaintiff continued to work for the employer until 1997, at which time he was terminated. Based on these facts, we ruled that the evidence supported the conclusion that the employer and plaintiff agreed to arbitration. (Id. at pp. 420-422.) Similarly here, Macquarie’s submitting the mutual arbitration agreement to plaintiff and its purported insistence that he sign it constitutes substantial evidence that it agreed to arbitration.
DISPOSITION
The petition for a writ of mandate is denied.
Pursuant to the terms of the arbitration agreement and Macquarie’s request that we sever any invalid or unenforceable provision, the sentence “All other costs and expenses associated with the arbitration, icluding, without limitation, the party’s respective attorneys’ fees, shall be borne by the party incurring the expense.” is stricken from the agreement.
Each party shall bear its own costs on writ proceeding.
We concur: MALLANO, P. J., ROTHSCHILD, J.