IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
October 24, 2011
GIL SANCHEZ, PLAINTIFF AND RESPONDENT,
VALENCIA HOLDING COMPANY, LLC, DEFENDANT AND APPELLANT.
(Los Angeles County Super. Ct. No. BC433634) APPEAL from an order of the Superior Court of Los Angeles County, Rex Heeseman, Judge. Affirmed.
The opinion of the court was delivered by: Mallano, P. J.
CERTIFIED FOR PUBLICATION
Plaintiff, a car buyer, filed this class action against a car dealer, alleging violations of the Consumers Legal Remedies Act (CLRA) (Civ. Code, §§ 1750-1784), the Automobile Sales Finance Act (ASFA) (Civ. Code, §§ 2981-2984.6), the unfair competition law (UCL) (Bus. & Prof. Code, §§ 17200-17210), the Song-Beverly Consumer Warranty Act (Song-Beverly Act) (Civ. Code, §§ 1790-1795.8), and Public Resources Code section 42885.*fn1
The car dealer filed a motion to compel arbitration pursuant to a provision in the sales contract, which also contained a class action waiver. The trial court determined that the class action waiver was unenforceable on the ground that a consumer is statutorily entitled to maintain a CLRA suit as a class action. (See Civ. Code, § 1781.) The arbitration provision in the sales contract stated that if the class action waiver was declared unenforceable, the entire arbitration provision was not to be enforced. Pursuant to this "poison pill" clause, the trial court denied the petition to compel arbitration. The car dealer appealed.
We affirm but for a different reason. We conclude that the arbitration provision is unconscionable: The provision is adhesive -- involving oppression and surprise due to unequal bargaining power -- and contains harsh one-sided terms that favor the car dealer to the detriment of the buyer. Because the provision contains multiple invalid clauses, it is permeated with unconscionability and unenforceable. We cannot sever all of the offending language. Thus, regardless of the validity of the class action waiver, the trial court properly declined to compel arbitration.
The allegations and facts in this appeal are taken from the pleadings and the exhibits submitted in connection with the petition to compel arbitration.
Plaintiff, Gil Sanchez, filed this class action in March 2010. Two months later, Sanchez filed a first amended complaint (complaint). It alleged as follows.
On August 8, 2008, Sanchez went to a car dealer, Mercedes-Benz of Valencia -- a fictitious business name for defendant Valencia Holding Company, LLC (Valencia) -- and expressed an interest in buying a certified pre-owned Mercedes. A salesman showed him a 2006 Mercedes-Benz S500V with an advertised price of around $48,000. Sanchez said he wanted to trade in his 2004 Cadillac Deville because he was "upside down" on it -- he owed more than the car was worth. The salesman told Sanchez they could probably "make the deal work," depending on how much Sanchez could afford as a down payment.
After a test drive, the salesman told Sanchez that Valencia would give him $6,000 for his Cadillac, on which Sanchez still owed approximately $20,800, creating a negative equity of $14,800. Sanchez made a down payment of $10,000. The salesman said Sanchez might be required to make a higher down payment, but it could be paid over time.
Valencia informed Sanchez that he had to pay $3,700 to have the Mercedes-Benz "certified" to qualify for an interest rate of 4.99 percent. That statement was false. The $3,700 payment was actually for an extended limited warranty, which was optional and unrelated to the interest rate. Sanchez agreed to the additional payment, believing it was a certification fee required to obtain the offered rate.
Sanchez met with Valencia's finance manager, who completed all of the financial information on the sales documents, including a preprinted "Retail Installment Sale Contract" (Sale Contract).*fn2 The total sales price was $53,498.60. The amount financed was $47,032.99, with a monthly payment of $888.31. The Sale Contract listed a charge of $347 for "license fees" and "N/A" for registration, transfer, and titling fees. It included a $28 "Optional DMV Electronic Filing Fee," but Valencia never discussed the fee with Sanchez or asked if he wanted to opt out of it. The Sale Contract also charged Sanchez new tire fees of $8.75 -- a new tire fee of $1.75 for each new tire, including the spare. But not all of the tires were new. Last, the contract showed a down payment of $15,000 instead of the $10,000 Sanchez had just paid.
Valencia represented that the vehicle was "certified," meaning it had been through a "rigorous inspection and certification process" in which any deficiencies were "repaired, replaced, or reconditioned." A certified vehicle comes with a 12-month limited warranty. As alleged, the "certified" classification and the certification program were "intentionally fraudulent." Nothing was done to improve the condition or operation of a certified vehicle.
Sanchez executed the Sale Contract and took possession of the vehicle on August 8, 2008. A few days later, Valencia called him and said he owed more toward the down payment. On August 15, 2008, Sanchez went to the dealership and wrote a check for $3,000. Sometime thereafter, Sanchez received another call, telling him he owed still more on the down payment. He went to the dealership and wrote a check for $2,000, bringing the total down payment to $15,000.
Shortly after the purchase, Sanchez experienced problems with the vehicle, including malfunctions with various electrical systems, water leaks inside the passenger cabin and the trunk, engine failures, and errors with the warning and indicator lights. Sanchez took the vehicle to authorized repair facilities on several occasions, including Valencia, but they were unable to repair the vehicle. Eventually, Valencia accused Sanchez of having tampered with the vehicle, told him it would cost $14,000 to make the repairs, and said the warranties would not apply. The accusation against Sanchez was false. Sanchez then had the vehicle inspected elsewhere and learned it had been in an accident or had been inadequately repaired before he bought it.
Sanchez alleges that Valencia violated several California laws by: (1) failing to separately itemize the amount of the down payment that is deferred to a date after the execution of the Sale Contract; (2) failing to distinguish registration, transfer, and titling fees, on the one hand, from license fees, on the other hand; (3) charging buyers the Optional DMV Electronic Filing Fee without discussing it or asking the buyer if he or she wanted to pay it; (4) charging new tire fees for used tires; and (5) telling Sanchez to pay $3,700 to have the vehicle certified so he could qualify for the 4.99 percent interest rate when that payment was actually for an optional extended warranty unrelated to the rate.
The complaint alleged that a class action was appropriate based on the numerosity of putative class members, the predominance of common questions of law and fact, the typicality of the claims, and the superiority and benefits of class litigation. Four distinct classes were proposed based on the particular violations committed by Valencia.
Fifteen causes of action were alleged. The first one, for violation of the CLRA, was premised on Valencia's false representations and sought injunctive relief and damages, including punitive damages. Of the remaining 14 causes of action -- alleging violations of the CLRA, ASFA, UCL, Song-Beverly Act, or section 42885 -- 12 sought injunctive relief, rescission of the Sale Contract, restitution, or some combination thereof, but no damages. The other two, alleging violations of section 42885 and the Song-Beverly Act, sought civil penalties or damages. Under section 42885, Sanchez sought a civil penalty not exceeding $25,000 for each used tire for which Valencia charged him a new tire fee. (See § 42885, subd. (e).) As provided in the Song-Beverly Act, he sought general and consequential damages plus a civil penalty up to two times actual damages. (See Civ. Code, § 1794.) The complaint also prayed for an award of attorney fees.
B. Motion to Compel Arbitration
On June 7, 2010, Valencia filed a motion to compel arbitration pursuant to an arbitration provision in the Sale Contract. The provision stated: "1. Either you or we may choose to have any dispute between us decided by arbitration and not in court or by jury trial.
"2. If a dispute is arbitrated, you will give up your right to participate as a class representative or class member on any class claim you may have against us including any right to class arbitration or any consolidation of individual arbitrations.
"3. Discovery and rights to appeal in arbitration are generally more limited than in a lawsuit, and other rights that you and we would have in court may not be available in arbitration.
"Any claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Clause, and the arbitrability of the claim or dispute), between you and us or our employees, agents, successors or assigns, which arises out of or relates to your credit application, purchase or condition of this vehicle, this contract or any resulting transaction or relationship . . . shall, at your or our election, be resolved by neutral, binding arbitration and not by a court action. . . . Any claim or dispute is to be arbitrated by a single arbitrator on an individual basis and not as a class action. You expressly waive any right you may have to arbitrate a class action. You may choose one of the following arbitration organizations and its applicable rules: the National Arbitration Forum . . . (www.arbforum.com), the American Arbitration Association . . . (www.adr.org), or any other organization that you may choose subject to our approval. . .
"Arbitrators shall be attorneys or retired judges and shall be selected pursuant to the applicable rules. The arbitrator shall apply governing substantive law in making an award. The arbitration hearing shall be conducted in the federal district in which you reside . . . . We will advance your filing, administration, service or case management fee and your arbitrator or hearing fee all up to a maximum of $2500, which may be reimbursed by decision of the arbitrator at the arbitrator's discretion. Each party shall be responsible for its own attorney, expert and other fees, unless awarded by the arbitrator under applicable law. If the chosen arbitration organization's rules conflict with this Arbitration Clause, then the provisions of this Arbitration Clause shall control. The arbitrator's award shall be final and binding on all parties, except that in the event the arbitrator's award for a party is $0 or against a party is in excess of $100,000, or includes an award of injunctive relief against a party, that party may request a new arbitration under the rules of the arbitration organization by a three-arbitrator panel. The appealing party requesting new arbitration shall be responsible for the filing fee and other arbitration costs subject to a final determination by the arbitrators of a fair apportionment of costs. Any arbitration under this Arbitration Clause shall be governed by the Federal Arbitration Act (9 U.S.C. § 1 et seq.) and not by any state law concerning arbitration.
"You and we retain any rights to self-help remedies, such as repossession. You and we retain the right to seek remedies in small claims court for disputes or claims within that court's jurisdiction, unless such action is transferred, removed or appealed to a different court. Neither you nor we waive the right to arbitrate by using self-help remedies or filing suit. Any court having jurisdiction may enter judgment on the arbitrator's award. This Arbitration Clause shall survive any termination, payoff or transfer of this contract. If any part of this Arbitration Clause, other than waivers of class action rights, is deemed or found to be unenforceable for any reason, the remainder shall remain enforceable. If a waiver of class action rights is deemed or found to be unenforceable for any reason in a case in which class action allegations have been made, the remainder of this Arbitration Clause shall be unenforceable." (Italics added, some capitalization omitted.)*fn3 
In anticipation of Sanchez's contentions, Valencia asserted in its moving papers that: (1) the arbitration provision was not procedurally or substantively unconscionable under the principles set forth in Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83 at page 114 (Armendariz); and (2) the class action waiver was not invalid under Discover Bank v. Superior Court (2005) 36 Cal.4th 148, overruled AT&T Mobility LLC v. Concepcion (2011) ___ U.S. ___ [131 S.Ct. 1740] (Concepcion). This second point was of special importance because the arbitration provision contained a "poison pill" clause -- if the class action waiver was found to be unenforceable, the entire arbitration provision was unenforceable, and the case would be adjudicated in a court of law.
Attached to the moving papers was a completed copy of the Sale Contract, a preprinted three-page document with provisions on both sides of each page. The three front pages required the buyer's signature or initials as to several provisions, indicating his consent. No signatures or initials were required on any of the back pages. The arbitration provision was the last provision in the Sale Contract, appearing at the bottom on the back of the last page. The buyer's final signature appeared on the front of the last page. No signature or initials appeared after or near the arbitration provision. The typeface and font size were the same throughout the Sale Contract, but the font size was small. Also, in comparison to the rest of the contract, the line spacing in the arbitration provision was reduced, giving it a "squashed" appearance and making it relatively more difficult to read.
In his opposition papers, Sanchez disagreed with Valencia's legal points. He also submitted a declaration, stating: ". . . When I signed the documents related to my purchase of the Subject Vehicle, I was presented with a stack of documents, and was simply told by the Dealership's employee where to sign and/or initial each one. All of the documents (including the purchase contracts) were pre-printed form documents. When I signed the documents, I was not given an opportunity to read any of the documents, nor was I given an opportunity to negotiate any of the pre-printed terms. The documents were presented to me on a take-it-or-leave-it basis, to either sign them or not buy the car. . . . There was no question of choice on my part or of my being able to 'negotiate' anything. And I had no reason to suspect that hidden on the back of the contracts . . . was a section that prohibited me from being able to sue the Dealership in court if I had a problem.
". . . When I signed the purchase contract and related documents, the Dealership did not ask me if I was willing to arbitrate any disputes with it, did not tell me that there was an 'arbitration clause' on the back side of the purchase contract, and I did not see any such clause before I signed the documents. The Dealership did not explain to me what an arbitration clause was. I was not given any opportunity at any time during my transaction with [the] Dealership to negotiate whether or not I would agree to arbitrate any potential disputes. I was not given an option whether to sign a contract with an arbitration clause or one without.
". . . Prior to the filing of [Valencia's motion to compel arbitration], I had never heard of the National Arbitration Forum or American Arbitration Association. Nor was I aware that there was a clause in my contract with the Dealership supposedly requiring me to go to arbitration if I had a dispute with the Dealership and that I had to read the rules of those organizations before signing my purchase contracts. No one at the Dealership turned my purchase contract over and showed me the writing on the back or asked me to sign any sections on the back of the contract where I have now learned the arbitration clause is located.
". . . At no point during my transaction with the Dealership was I presented with a separate arbitration agreement to review and sign.
". . . On both occasions when I was at the Dealership and signed purchase contracts, I did not have, nor was I given, an opportunity to use a computer to download any information about arbitration organizations, including their procedures or rules, nor was I aware that I could or should have done this."
The motion to compel was heard on August 19 and September 13, 2010. At the September 13 hearing, the trial court stated it was denying the motion and would issue a written order within a week. On September 14, the trial court issued an order denying the motion. The court explained that the CLRA expressly provides for class actions and declares the right to a class action to be unwaivable. (See Civ. Code, §§ 1781, 1751.) As a consequence, the class action waiver in the arbitration provision was unenforceable. Further, in accordance with the poison pill clause, the unenforceability of the class action waiver made the entire arbitration provision unenforceable. The trial court therefore denied the motion. Valencia appealed.
"'"Whether an arbitration provision is unconscionable is ultimately a question of law."' . . . 'On appeal, when the extrinsic evidence is undisputed, as it is here, we review the contract de novo to determine unconscionability.'" (Suh v. Superior Court (2010) 181 Cal.App.4th 1504, 1511-1512, citations omitted; accord, Mercuro v. Superior Court (2002) 96 Cal.App.4th 167, 174.) Because this appeal presents a question of law, we may resolve it in the first instance, without remand to the trial court. "'We are not bound by the trial court's stated reasons, if any, supporting its ruling; we review the ruling, not its rationale.'" (Walgreen Co. v. City and County of San Francisco (2010) 185 Cal.App.4th 424, 433.)
The parties disagree as to whether the class action waiver is unenforceable under the CLRA, making the entire arbitration provision unenforceable under the poison pill clause. They also dispute whether the arbitration provision is procedurally and substantively unconscionable and whether the provision is permeated with unconscionability, rendering it unenforceable.
We do not address whether the class action waiver is unenforceable. Rather, we conclude the arbitration provision as a whole is unconscionable: The provision is procedurally unconscionable because it is adhesive and satisfies the elements of oppression and surprise; it is substantively unconscionable because it contains terms that are one-sided in favor of the car dealer to the detriment of the buyer. Because the provision contains multiple invalid terms, it is permeated with unconscionability and unenforceable. Severance of the offending terms is not appropriate. It follows that the case should be heard in a court of law.
A. General Principles of Unconscionability
As explained in Armendariz, supra, 24 Cal.4th 83: "In 1979, the Legislature enacted Civil Code section 1670.5, which codified the principle that a court can refuse to enforce an unconscionable provision in a contract. . . . As section 1670.5, subdivision (a) states: '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, 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.' Because unconscionability is a reason for refusing to enforce contracts generally, it is also a valid reason for refusing to enforce an arbitration agreement under Code of Civil Procedure section 1281, which . . . provides that arbitration agreements are 'valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.' The United States Supreme Court, in interpreting the same language found in section 2 of the FAA (9 U.S.C. § 2), recognized that 'generally applicable contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate arbitration agreements . . . .' . . .
". . . '[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. . . . '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.' . . . But they need not be present in the same degree. . . . [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." (Armendariz, supra, 24 Cal.4th at p. 114, citations omitted; accord, Bruni v. Didion (2008) 160 Cal.App.4th 1272, 1288-1289.)
Before applying Armendariz to the present case, we note that Concepcion, supra, 131 S.Ct. 1740, does not preclude the application of the Armendariz principles to determine whether an arbitration provision is unconscionable. Concepcion disapproved the "Discover Bank rule," stating: "In Discover Bank, the California Supreme Court applied [the doctrine of unconscionability] to class-action waivers in arbitration agreements and held as follows: [¶] '[W]hen the [class action] waiver is found in a consumer contract of adhesion in a setting in which disputes between the contracting parties predictably involve small amounts of damages, and when it is alleged that the party with the superior bargaining power has carried out a scheme to deliberately cheat large numbers of consumers out of individually small sums of money, then . . . the waiver becomes in practice the exemption of the party "from responsibility for [its] own fraud, or willful injury to the person or property of another." Under these circumstances, such waivers are unconscionable under California law and should not be enforced.'" (Concepcion, at p. 1746, italics added.) With the exception of the Discover Bank rule, the Court acknowledged that the doctrine of unconscionability is still a basis for invalidating arbitration provisions. (Concepcion, at pp. 1746, 1747; see Kanbar v. O'Melveny & Myers (N.D.Cal. 2011) 2011 U.S. Dist. Lexis 79447, pp. *15-*16, *23-*24, 2011 WL 2940690, pp. *6, *9.) Thus, Concepcion is inapplicable where, as here, we are not concerned with a class action waiver or a judicially imposed procedure that conflicts with the arbitration provision and the purposes of the Federal Arbitration Act (FAA) (9 U.S.C. §§ 1-16). (See Concepcion, at pp. 1748-1753.)
B. Procedural Unconscionability
"'The procedural element of unconscionability focuses on two factors: oppression and surprise. . . . "'Oppression' arises from an inequality of bargaining power which results in no real negotiation and 'an absence of meaningful choice.'" . . . "'Surprise' involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in a prolix printed form drafted by the party seeking to enforce the disputed terms." . . .'" (Bruni v. Didion, supra, 160 Cal.App.4th at p. 1288.)
In Gutierrez v. Autowest, Inc. (2003) 114 Cal.App.4th 77 (Gutierrez), the plaintiff leased a vehicle pursuant to a contract virtually identical to the one here and signed it under similar circumstances. The Court of Appeal had no difficulty concluding the arbitration provision was procedurally unconscionable, saying: "The trial court's implicit conclusion that the arbitration clause in the automobile lease is adhesive is supported by substantial evidence. The lease was presented to plaintiffs for signature on a 'take it or leave it' basis. Plaintiffs were given no opportunity to negotiate any of the preprinted terms in the lease. The arbitration clause was particularly inconspicuous, printed in eight-point typeface on the opposite side of the signature page of the lease. [The plaintiff] was never informed that the lease contained an arbitration clause, much less offered an opportunity to negotiate its inclusion within the lease or to agree upon its specific terms. He was not required to initial the arbitration clause. . . . He either had to accept the arbitration clause and the other preprinted terms, or reject the lease entirely. Under these circumstances, the arbitration clause was procedurally unconscionable." (Id. at p. 89, citation omitted; accord, Fittante v. Palm Springs Motors, Inc. (2003) 105 Cal.App.4th 708, 722-723.)
In language of equal importance in this case, another court explained: "[P]laintiffs are claiming that they never knowingly agreed to the arbitration provision. As in most, if not all, adhesion contract cases, they deny ever reading [it]. The general rule '"that one who signs an instrument may not avoid the impact of its terms on the ground that he failed to read the instrument before signing it"' applies only in the absence of '"overreaching"' . . . or '"'imposition'"' . . . . Thus, it does not apply to an adhesion contract. . . . Indeed, failure to read the contract helps 'establish actual surprise . . . .'" (Bruni v. Didion, supra, 160 Cal.App.4th at pp. 1290-1291, citations omitted.)
As a federal court explained in finding the identical arbitration provision to be procedurally unconscionable: "[The buyer] asserts the Contract was presented to him on a 'take-it-or-leave-it' basis, . . . and he did not have an opportunity for meaningful negotiation. [The lender] disputes this assertion . . . . [The buyer] has submitted a declaration describing the circumstances under which he signed the Contract. According to [him], he was not provided an opportunity to read the Contract prior to signing it. . . . Instead, the finance person simply 'held the contract flat on the desk with one hand and with the other pointed to the various places on the front of the contract for [the buyer] to sign that [were] marked in yellow.' . . . [The buyer] 'was not allowed to read the back of the contract [where the Arbitration Clause is located], or asked to sign anywhere on the back of the contract. The finance person did not turn the contract over at all during the signing.' . . . No one pointed out the Arbitration Clause or discussed it with [the buyer] at any time. . . . These circumstances are sufficient to . . . support a finding of oppression. [¶] . . . [¶]
"Oppression, however, is only one factor in the procedural unconscionability analysis. The other factor is surprise, and on this factor, [the buyer] asserts the Arbitration Clause was hidden in the lengthy form contract. [The lender] disputes this assertion, and points out that the Arbitration Clause is located within a box entitled 'ARBITRATION CLAUSE,' under which reads 'PLEASE REVIEW -- IMPORTANT -- AFFECTS YOUR LEGAL RIGHTS.' However, the border and heading typeface do not change the location of the Arbitration Clause, which is found at the end of the Contract. [The lender does] not dispute [the buyer's] assertion that he 'did not know there was any arbitration clause until [his] attorney told [him] [the lender] is trying to force arbitration.' . . . Based on this evidence, the Court finds [that the buyer] has demonstrated surprise. Combined with the finding of oppression, [the buyer] has shown the Arbitration Clause is procedurally unconscionable." (Smith v. Americredit Financial Services, Inc. (S.D.Cal. 2009) 2009 U.S. Dist. Lexis 115767, pp. *13-*16, 2009 WL 4895280, pp. *5-*6.)
For its part, Valencia argues procedural unconscionability is lacking because Sanchez could have gone elsewhere to buy a Mercedes-Benz from a dealer who did not require arbitration. But "absent unusual circumstances, use of a contract of adhesion establishes a minimal degree of procedural unconscionability notwithstanding the availability of market alternatives. . . . [C]courts are not obligated to enforce highly unfair provisions that undermine important public policies simply because there is some degree of consumer choice in the market." (Gatton v. T-Mobile USA, Inc. (2007) 152 Cal.App.4th 571, 585, fn. omitted; see id. at pp. 583-585 [discussing cases].) "The California Court of Appeal has rejected the notion that the availability in the marketplace of substitute employment, goods, or services alone can defeat a claim of procedural unconscionability." (Nagrampa v. MailCoups, Inc. (9th Cir. 2006) 469 F.3d 1257, 1283 (en banc).) And here, there is no evidence Sanchez could have purchased a Mercedes-Benz from a dealer who did not mandate arbitration. Far from it, in arguing that the arbitration provision involved no surprise, Valencia relies on case authority for the proposition that "arbitration per se may be within the reasonable expectation of most consumers." (Patterson v. ITT Consumer Financial Corp. (1993) 14 Cal.App.4th 1659, 1665; accord, Gutierrez, supra, 114 Cal.App.4th at p. 90.) If this is true, a potential buyer might reasonably assume that all Mercedes-Benz dealers would insist on arbitration and that there were no market alternatives, but a buyer would not expect to be bound by a provision as harsh as the one here.
In short, the arbitration provision satisfies the two elements of procedural unconscionability: oppression and surprise. Its location on the back of the last page in small font with reduced line spacing made it unnoticeable to the buyer.
C. Substantive Unconscionability
"Of course, simply because a provision within a contract of adhesion is not read or understood by the non-drafting party does not justify a refusal to enforce it. The unbargained-for term may only be denied enforcement if it is also substantively unreasonable. . . . Substantive unconscionability focuses on whether the provision is overly harsh or one-sided and is shown if the disputed provision of the contract falls outside the 'reasonable expectations' of the non-drafting party or is 'unduly oppressive.' . . . Where a party with superior bargaining power has imposed contractual terms on another, courts must carefully assess claims that one or more of these provisions are one-sided and unreasonable." (Gutierrez, supra, 114 Cal.App.4th at p. 88, citations omitted.)
We conclude that four clauses in the arbitration provision are unconscionable. First, a party who loses before the single arbitrator may appeal to a panel of three arbitrators if the award exceeds $100,000. Second, an appeal is permitted if the award includes injunctive relief. Third, the appealing party must pay, in advance, "the filing fee and other arbitration costs subject to a final determination by the arbitrators of a fair apportionment of costs." Fourth, the provision exempts repossession from arbitration while requiring that a request for injunctive relief be submitted to arbitration. Although these provisions may appear neutral on their face, they have the effect of placing an unduly harsh burden on the buyer. In assessing unconscionability, we focus on the practical effect of a provision, not a facial interpretation. (Saika v. Gold (1996) 49 Cal.App.4th 1074, 1079-1080 (Saika).)
1. Award Exceeding $100,000
Either party may appeal an initial decision exceeding $100,000. As courts have recognized, this type of provision, though neutral on its face, has the effect of benefiting the party that drafted the contract, here, the car dealer.
In Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064 (Little), an employment case, the arbitration provision allowed either party to appeal an initial award to a second arbitrator if it exceeded $50,000. The Supreme Court found the provision unconscionable, stating: "[The employer] and its amici curiae . . . claim that the arbitration appeal provision applied evenhandedly to both parties and that . . . there is at least the possibility that an employer may be the plaintiff, for example in cases of misappropriation of trade secrets. . . . But if that is the case, they fail to explain adequately the reasons for the $50,000 award threshold. From a plaintiff's perspective, the decision to resort to arbitral appeal would be made not according to the amount of the arbitration award but the potential value of the arbitration claim compared to the costs of the appeal. If the plaintiff and his or her attorney estimate that the potential value of the claim is substantial, and the arbitrator rules that the plaintiff takes nothing because of its erroneous understanding of a point of law, then it is rational for the plaintiff to appeal. Thus, the $50,000 threshold inordinately benefits defendants. Given the fact that [the employer] was the party imposing the arbitration agreement and the $50,000 threshold, it is reasonable to conclude it imposed the threshold with the knowledge or belief that it would generally be the defendant.
"Although parties may justify an asymmetrical arbitration agreement when there is a 'legitimate commercial need' . . . , that need must be 'other than the employer's desire to maximize its advantage' in the arbitration process. . . . There is no such justification for the $50,000 threshold." (Little v. Auto Stiegler, Inc., supra, 29 Cal.4th at p. 1073, citations omitted; accord, Gibson v. Nye Frontier Ford, Inc. (Alaska 2009) 205 P.3d 1091, 1098 & fn. 26.)
Little relied in part on Saika, supra, 49 Cal.App.4th 1074. In Saika, a patient signed a "Patient-Physician Arbitration Agreement" before undergoing a chemical skin peel of her face. The agreement provided that if an award exceeded $25,000, either party could request a trial de novo in superior court, and the arbitration award would be null and void. (Id. at p. 1077.) After the medical procedure, the patient filed a civil suit against the physician, alleging medical malpractice based on severe burns. The physician successfully moved to compel arbitration. The arbitrators awarded $325,000. The patient sought to strike the trial de novo clause and confirm the award; the physician countered with a request for a trial de novo. The trial court ruled in favor of the physician.
The Court of Appeal reversed, stating: "A trial de novo clause within the arbitration agreement purportedly allows either party to disregard the results of the arbitration and litigate in the courts when the arbitration award exceeds $25,000, but . . . the practical effect of the clause is to tilt the playing field in favor of the doctor. By making arbitration virtually illusory as far as one side is concerned, the clause contravenes the strong public policy favoring arbitration." (Saika, supra, 49 Cal.App.4th at pp. 1076-1077.)
As the court realized, an arbitration award in favor of a patient in a malpractice case would typically exceed $25,000 by such a substantial amount that only the physician would invoke the trial de novo clause; a claim by a physician against a patient, most likely a billing matter, would rarely result in an award exceeding $25,000, especially if the patient had private health insurance or was covered by some type of governmental assistance program. As the court explained: "True, there is a theoretical class of cases where the trial de novo clause could arguably benefit a patient -- namely, situations where the initial arbitration award exceeds $25,000 but is still so low that it represents an injustice. . . . For example, the case before us appears to involve facial disfigurement. The arbitrators handed down what appears, at least insofar as the record discloses, an appropriately large award. Had they only given [the patient] $25,001, the trial de novo clause would indeed have been of some benefit to her.
"But . . . [a]s a practical matter, the benefit which the trial de novo clause confers on patients is nothing more than a chimera. The odds that an award will both (a) clear the $25,000 threshold but (b) still be so low that the patient would want to have a trial de novo are so small as to be negligible. . . . [T]he cases where the trial de novo clause could possibly benefit the patient are going to be rare indeed.
". . . [W]hile the trial de novo clause in the present case purports to apply to both parties, it is the same 'heads I win, tails you lose' proposition that the court condemned in [prior case law.] [¶] . . . [¶]
". . . [P]ublic confidence in arbitration in large part depends on the idea that arbitration provides a fair alternative to the courts. That confidence is manifestly undermined when provisions in arbitration clauses provide that when one side wins the game doesn't count. . . . Alternative dispute resolution must be a genuine alternative to litigation in the courts, not a sham process by which one party to an agreement can increase the total costs of making a claim against it." (Saika v. Gold, supra, 49 Cal.App.4th at pp. 1080-1081, citation omitted.)
The same analysis applies here. The buyer will rarely benefit from the clause permitting an appeal of an award exceeding $100,000 because the buyer, not the dealer, is more likely to recover an award of that size. The buyer would tend to be satisfied with such an award; the car dealer would appeal it. Under the Sale Contract, Sanchez is obligated to make monthly payments totaling less than $50,000. In contrast, Valencia's obligations under the Sale Contract and California law are to sell a vehicle in working condition, to avoid misleading or false representations, and to comply with various consumer laws, the violation of which could result in substantial damages and civil penalties. A violation of the "new tire" statute alone (§ 42885) could result in civil penalties up to $125,000 if the car dealer knowingly misstated that all the tires, including the spare, were new. In short, there is no justification for the $100,000 threshold, other than to relieve the car dealer of liability it deems excessive.
Valencia emphasizes that an appeal of the initial award is permitted if either party brings a claim and recovers nothing. By providing an appeal where the arbitrator awards nothing, one party is not favored over the other. We cannot say that one of the parties is more likely to lose regardless of which party is the claimant or the respondent. Nevertheless, under the appeal clauses, if the buyer prevails but believes the award is too low, the arbitration is at an end unless the buyer recovers nothing; if the buyer prevails and recovers a substantial sum, the car dealer can start anew before a three-member panel if the award exceeds what the dealer considers too high. A truly bilateral clause would allow a buyer to appeal an award below $100,000.
2. Appeal of Award that Includes Injunctive Relief
The arbitration provision allows an appeal by either party if an award against it contains injunctive relief. This type of appeal unduly burdens the buyer because the buyer, not the car dealer, is more likely to obtain an injunction.
"[I]mmediate injunctive relief [is often] essential to protect consumers against further illegal acts of the defendant." (People v. Pacific Land Research Co. (1977) 20 Cal.3d 10, 20.) In litigation by consumers, "the importance of providing an effective injunctive remedy becomes manifest." (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 107.)
Preliminary injunctive relief is appropriate only if two interrelated factors are present: (1) the plaintiff is likely to prevail on the merits at trial; and (2) the interim harm the plaintiff is likely to sustain in the absence of an injunction is greater than the harm the defendant will probably suffer if an injunction is issued. (Vo v. City of Garden Grove (2004) 115 Cal.App.4th 425, 433.) A consideration of interim harm includes the inadequacy of other remedies, including damages, and the degree of irreparable injury the denial of the injunction would cause. (Id. at p. 435; Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1352; 5 Witkin, Cal. Procedure (5th ed. 2008) Provisional Remedies, § 337, p. 282.)
Preliminary injunctions are of particular importance in protecting the interests of consumers. (See, e.g., Regents of University of California v. ABC (9th Cir. 1984) 747 F.2d 511, 521; Sanderson Farms, Inc. v. Tyson Foods, Inc. (D.Md. 2008) 547 F.Supp.2d 491, 508-509; R.L. Polk & Co. v. INFOUSA, Inc. (E.D.Mich. 2002) 230 F.Supp.2d 780, 796-797; F.T.C. v. Staples, Inc. (D.D.C. 1997) 970 F.Supp. 1066, 1091-1092; see also Vo v. City of Garden Grove, supra, 115 Cal.App.4th at p. 435 [one factor weighing against issuance of preliminary injunction is any adverse effect it would have on public interest].)*fn4
Not surprisingly, it is the buyer, not the car dealer, who would be seeking preliminary or permanent injunctive relief, primarily to enforce consumer laws like the CLRA. If an interim award (preliminary injunction) or final award (permanent injunction) is issued against the car dealer, the arbitrator has favorably reviewed the merits of the buyer's claims and determined that the interests of consumers will be irreparably injured without injunctive relief.
Nevertheless, here, the arbitration provision's appeal clauses allow the car dealer to delay the effect of an injunction by way of appellate review before a three-member arbitration panel. By subjecting injunctive relief to an appeal process, only the car dealer is benefited, making the clause one-sided and undermining the purpose of the CLRA to protect consumer rights.
In addition, the arbitration provision is silent as to the procedure for taking an appeal. Presumably, if the arbitrator issues a preliminary injunction in the form of an interim award, the car dealer may appeal at that time, putting the rest of the case on hold pending a decision by the three-member appellate panel. This delay is inconsistent with the enforcement of consumer rights laws and the expediency of the arbitration process.
Thus, when it serves the car dealer's interests -- if an award against it is less than $100,000 -- the buyer cannot appeal, and the car dealer touts the benefits of mandatory arbitration: "efficient, streamlined procedures[,] . . . the informality of arbitral proceedings . . . , reducing the cost and increasing the speed of dispute resolution." (Concepcion, supra, 131 S.Ct. at p. 1749.) But when those factors do not benefit the car dealer -- if injunctive relief would issue against only it -- then delay, complexity, and higher costs take precedence, and the buyer is subjected to another level of arbitral review, denying the weaker party of the benefits of arbitration.
3. Advance Payment of Fees and Costs on Appeal
As provided in the arbitration provision, if either party recovers nothing, it "may request a new arbitration under the rules of the arbitration organization by a three-arbitrator panel. The appealing party requesting new arbitration shall be responsible for the filing fee and other arbitration costs subject to a final determination by the arbitrators of a fair apportionment of costs." (Italics added.)
Yet the AAA rules do not even mention arbitration costs where a consumer appeals an initial award to a three-member panel. Nor do they permit any kind of appeal. (See AAA, Consumer Procedures [as of Oct. 24, 2011]; Consumer-Related Disputes Supplementary Procedures [as of Oct. 24, 2011]; see also AAA, Commercial Arbitration Rules and Mediation Procedures (eff. June 1, 2009) [as of Oct. 24, 2011].) And the appeal clauses in the Sale Contract require the appealing party to advance the fees and costs for both parties.
The CLRA confers unwaivable statutory rights on consumers and accords them some of the rights set forth in Armendariz, supra, 24 Cal.4th at pages 103-113. (See Gutierrez, supra, 114 Cal.App.4th at p. 95 & fn. 14; D.C. v. Harvard-Westlake School (2009) 176 Cal.App.4th 836, 854-855 [discussing Gutierrez].) One of those rights limits the payment of arbitral expenses by the buyer.
Under the CLRA, a consumer does not have to pay arbitration costs or arbitrator fees (arbitral expenses) that he or she cannot afford or that are prohibitively high. (See Gutierrez, supra, 114 Cal.App.4th at pp. 89-90 & fn. 9.) Yet the appeal clauses mandate that the appealing party bear the arbitral expenses for both parties in advance, subject to reallocation between the parties at the end of the proceeding. But a reapportionment at the conclusion of the arbitration is inadequate. (Id. at p. 90.) "[That] possibility . . . provides little comfort to consumers . . . who cannot afford to initiate the [appeal] process in the first place." (Ibid.) Items covered by an appeal payment made in advance include, as stated in the Sale Contract, "the filing fee and other arbitration costs." Arbitrator fees in Los Angeles average around $450 per hour. (See ADR Services, Inc., Southern California Mediation & Arbitration Panel [as of Oct. 24, 2011].) Hearing room rental costs and the arbitrator's travel expenses may also be included. (See D.C. v. Harvard Westlake School, supra, 176 Cal.App.4th at p. 849, fn. 4.)
Because the arbitration provision leaves the buyer in the dark as to the amount to be paid in advance, creating the possibility that the buyer may have to advance unaffordable expenses, the provision discourages buyers from pursuing an appeal and enforcing their rights under the CLRA. In contrast, the AAA consumer rules ensure that a consumer does not have to advance an exorbitant sum at the beginning of the arbitration process, although, as noted, the rules do not address or permit an appeal. (See AAA, Consumer Arbitration Costs [as of Oct. 24, 2011]; AAA, Administrative Fee Waivers and Pro Bono Arbitrators [as of Oct. 24, 2011.) The requirement that the appealing party pay the filing fee and arbitration costs of both parties in advance puts an unduly harsh, if not insurmountable, burden on the buyer.
"Unconscionability is determined as of the time the contract is made. . . . The flaw in this arbitration agreement is readily apparent. Despite the potential for the imposition of a substantial [advance of appellate costs], there is no effective procedure for a consumer to obtain a [cost] waiver or reduction. A comparison with the judicial system is striking. . . . [T]he judicial system provides parties with the opportunity to obtain a judicial waiver of some or all required court fees.
"The Government Code prescribes a tripartite means test for litigants seeking such a waiver. . . . The first two tests automatically exempt a party who receives certain designated governmental benefits . . . or who falls below a designated poverty limit . . . . Under the third test, courts have discretion to exempt litigants 'unable to proceed without using money which is necessary for the use of the litigant or the litigant's family to provide for the common necessaries of life.' . . . The Judicial Council, at the Legislature's direction, has provided a set of forms and rules that supplement the Government Code statute. . . . These rules detail the application form . . . , the procedure for determining the application . . . , and when a hearing is required . . . . Denial of the application, in whole or in part, 'shall include a statement of reasons.' . . .
"In contrast, the [arbitration provision here does not indicate] . . . how this process is begun, or who makes the determination, or what criteria are utilized to decide if [costs] should be reduced or deferred. . . .
"We do not mean to suggest that an arbitration agreement requiring the posting of [costs] to initiate the [appeal] process must provide a cost-waiver procedure that duplicates the judicial waiver procedure. But the agreement must provide some effective avenue of relief from unaffordable fees. This one does not." (Gutierrez, supra, 114 Cal.App.4th at pp. 91-92, citations omitted.)
4. Remedies Exempt from Arbitration
The arbitration provision expressly exempts self-help remedies including repossession, which is perhaps the most significant remedy from the car dealer's perspective. The buyer has no effective self-help remedies against a car dealer, and none of the buyer's remedies is exempt. Yet one of the most important remedies to a consumer -- injunctive relief -- is subject to arbitration. While a buyer is likely to seek an injunction against a car dealer -- 13 of the 15 causes of action in this case do -- we find it difficult to conceive of a situation where the dealer would be requesting that type of relief against the buyer.
In Flores v. Transamerica HomeFirst, Inc. (2001) 93 Cal.App.4th 846, the plaintiffs obtained a reverse mortgage on their home. The loan agreement contained an arbitration clause requiring the arbitration of all controversies with the exception of self-help remedies, stating: "'[T]his Section does not limit [the lender's] right to foreclose against the Property (whether judicially or non-judicially by exercising [its] right of sale or otherwise), to exercise self-help remedies such as set-off, or to obtain . . . appointment of a receiver from any appropriate court, whether before, during or after any arbitration.'" (Id. at p. 850.) The plaintiffs filed suit against the lender, alleging fraud, unfair business practices, and violation of the CLRA. The lender moved to arbitrate the case. The trial court denied the motion. The Court of Appeal affirmed, stating that "[a]s a practical matter, by reserving to itself the remedy of foreclosure, [the lender] has assured the availability of the only remedy it is likely to need. . . . The clear implication is that [the lender] has attempted to maximize its advantage by avoiding arbitration of its own claims." (Id. at p. 855; see also Arguelles-Romero v. Superior Court (2010) 184 Cal.App.4th 825, 845, fn. 21 [car buyer misinterpreted arbitration provision to allow car dealer to seek deficiency judgment in court instead of arbitration].)
By exempting repossession -- to which only the car dealer would resort -- from arbitration, while subjecting a request for injunctive relief -- the buyer's comparable remedy -- to arbitration, the Sale Contract creates an unduly oppressive distinction in remedies. This is especially so given that the California Arbitration Act (Code Civ. Proc., §§ 1280-1294.2) exempts preliminary injunctions from arbitration, allowing an application for "provisional" remedies to be filed directly in court (id., § 1281.8). Nevertheless, the Sale Contract dictates otherwise. As several courts have held, arbitration provisions are unconscionable if they provide for the arbitration of claims most likely to be brought by the weaker party but exempt from arbitration claims most likely to be filed by the stronger party. (See, e.g., Armendariz, supra, 24 Cal.4th at p. 119; Baker v. Osborne Development Corp. (2008) 159 Cal.App.4th 884, 896; Fitz v. NCR Corp. (2004) 118 Cal.App.4th 702, 724-725.)
Finally, the requirement that the buyer seek injunctive relief from the arbitrator is inconsistent with the CLRA. As our Supreme Court has explained: "[T]he purpose of arbitration is to voluntarily resolve private disputes in an expeditious and efficient manner. . . . Parties to arbitration voluntarily trade the formal procedures and the opportunity for greater discovery and appellate review for '"the simplicity, informality, and expedition of arbitration."' . .
"On the other hand, the evident purpose of the injunctive relief provision of the CLRA is not to resolve a private dispute but to remedy a public wrong. Whatever the individual motive of the party requesting injunctive relief, the benefits of granting injunctive relief by and large do not accrue to that party, but to the general public in danger of being victimized by the same deceptive practices as the plaintiff suffered. . . . In other words, the plaintiff in a CLRA damages action is playing the role of a bona fide private attorney general. . . .
"In addition to the fact that the injunction is for the public benefit, we are cognizant of the evident institutional shortcomings of private arbitration in the field of such public injunctions. . . . [C]courts that have generally affirmed the ability of arbitrators to issue injunctions acknowledge that the modification or vacation of such injunctions involves the cumbersome process of initiating a new arbitration proceeding. . . . While these procedures may be acceptable when all that is at stake is a private dispute by parties who voluntarily embarked on arbitration aware of the trade-offs to be made, in the case of a public injunction, the situation is far more problematic. The continuing jurisdiction of the superior court over public injunctions, and its ongoing capacity to reassess the balance between the public interest and private rights as changing circumstances dictate, are important to ensuring the efficacy of such injunctions. In some cases, the continuing supervision of an injunction is a matter of considerable complexity. . . . Indeed, in such cases, judges may assume quasi-executive functions of public administration that expand far beyond the resolution of private disputes. . . . Arbitrators, on the other hand, in addition to being unconstrained by judicial review, are not necessarily bound by earlier decisions of other arbitrators in the same case. Thus, a superior court that retains its jurisdiction over a public injunction until it is dissolved provides a necessary continuity and consistency for which a series of arbitrators is an inadequate substitute. [¶] . . . [¶]
"In short, there are two factors taken in combination that make for an 'inherent conflict' between arbitration and the underlying purpose of the CLRA's injunctive relief remedy. First, that relief is for the benefit of the general public rather than the party bringing the action. . . . Second, the judicial forum has significant institutional advantages over arbitration in administering a public injunctive remedy, which as a consequence will likely lead to the diminution or frustration of the public benefit if the remedy is entrusted to arbitrators." (Broughton v. Cigna Healthplans, supra, 21 Cal.4th at pp. 1080-1082, citations & fn. omitted.)*fn5
D. Severance or Non-enforcement
"'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, 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.' [(Civ. Code, § 1670.5, subd. (a).)] [We have the authority] under this statute to refuse to enforce an entire agreement if the agreement is 'permeated' by unconscionability. . . . An arbitration agreement can be considered permeated by unconscionability if it 'contains more than one unlawful provision. . . . Such multiple defects indicate a systematic effort to impose arbitration . . . not simply as an alternative to litigation, but as an inferior forum that works to the [stronger party's] advantage.' . . . 'The overarching inquiry is whether "'the interests of justice . . . would be furthered'" by severance.'" (Lhotka v. Geographic Expeditions, Inc. (2010) 181 Cal.App.4th 816, 826.)
The arbitration provision in the Sale Contract suffers from four defects, all of which tilt the arbitration unfairly in favor of the car dealer. First, the dealer may appeal to a three-member panel an adverse monetary award that only the buyer is likely to receive -- an award exceeding $100,000. While the car dealer, when sued, may appeal an adverse award it considers too high, the buyer, when the claimant, cannot appeal a monetary award it considers too low, other than a total loss. Second, the car dealer may appeal an award of injunctive relief -- a remedy only the buyer would seek -- to a three-member panel, thereby undermining the purpose of that type of remedy and the goals of arbitration itself: speedy, inexpensive relief to enjoin unlawful conduct affecting numerous consumers. Third, the advance payment of arbitral expenses on appeal requires the buyer, when appealing to a three-member panel, to pay the expenses of both parties even though he or she may not be able to afford them, thereby discouraging enforcement of the CLRA and violating the buyer's right to avoid paying exorbitant arbitral expenses. Fourth, the remedy of most importance to the dealer -- repossession -- is exempt from arbitration, but one of the buyer's most significant remedies --injunctive relief -- is not exempt. These defects lead us to conclude that the arbitration provision is permeated with unconscionability.
In addition, not all of the offending clauses can be cured by striking them. The unconscionable taint of the clause requiring an advance payment of both parties' arbitral expenses in the event of an appeal cannot be cleansed by some type of judicial restriction or deletion. The vice of the clause is not that the buyer, when the appellant, has to pay some of the costs of appeal. Rather, the clause does not establish a procedure or criteria for determining how much the buyer can afford to pay. (See Gutierrez, supra, 114 Cal.App.4th at pp. 91-92.) "[T]here is no single [clause] a court can strike or restrict in order to remove the unconscionable taint from the [arbitration provision]. Rather, the court would have to, in effect, reform the [provision], not through severance or restriction, but by augmenting it with additional terms. Civil Code section 1670.5 does not authorize such reformation by augmentation, nor does the arbitration statute. Code of Civil Procedure section 1281.2 authorizes the court to refuse arbitration if grounds for revocation exist, not to reform the [provision] to make it lawful. Nor do courts have any such power under their inherent limited authority to reform contracts. . . . Because a court is unable to cure this unconscionability through severance or restriction and is not permitted to cure it through reformation and augmentation, it must void the entire [provision]." (Armendariz, supra, 24 Cal.4th at pp. 124-125, citations omitted, italics added.)
Accordingly, we conclude the arbitration provision is procedurally and substantively unconscionable. The provision is permeated with unconscionability. And the defect concerning the advance payment of appeal expenses by the buyer cannot be cured in an appropriate way. Thus, the trial court properly denied the motion to compel arbitration.
The order is affirmed.
CERTIFIED FOR PUBLICATION.
ROTHSCHILD, J., Concurring.
I agree that the arbitration agreement is unconscionable for the following reasons: First, it is procedurally unconscionable because it is a contract of adhesion. (Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1280 & fn. 11.) Second, it is substantively unconscionable because (1) the provision making monetary awards of exactly $0 or more than $100,000 appealable is unfairly one-sided; and (2) the provision requiring the appealing party to advance all costs of the appeal is unfairly one-sided. Third, the unconscionable aspects of the agreement are not severable or susceptible of reformation. I therefore concur in the judgment.