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Shivani Bigler v. the Harker School Et. Al

February 6, 2013


Trial Court: Santa Clara County Superior Court Trial Judge Hon. Kevin McKenney Super. Ct. No. CV200932)

The opinion of the court was delivered by: Elia, J.


(Santa Clara County

The Harker School (Harker) and one of its teachers, Peter Itokazu, appeal from an order denying their petition to compel arbitration of contract and tort claims brought by plaintiff Shivani Bigler, a student at the school.*fn1 Defendants contest the superior court's conclusion that a broad arbitration provision in the enrollment contract signed by Shivani's parents is unconscionable and therefore unenforceable. They further challenge the court's finding that the contracting parties would not have reasonably expected the tort allegations of the complaint to be included in the arbitration process. Having independently considered these issues in light of the record, we agree with Harker that the arbitration provision is valid and applicable to the tort allegations.


Shivani was enrolled at Harker from 1999 until April 27, 2011. Each year her parents were presented with an enrollment contract for the following school year. In January 2010, the Head of School enclosed a letter along with the proposed contract for the 2010-2011 school year. In the letter sent to the Biglers, he asked them to return the contract with their deposit by February 10, 2010, in order to ensure that space was reserved for Shivani in the 11th grade.

On May 13, 2011 Shivani, represented by the Biglers as her guardians ad litem, filed a complaint against Harker and one of its teachers, Peter Itokazu. Shivani claimed that she was "mistakenly or wrongfully accused of an honor code violation," which was "not investigated and resolved pursuant to fundamentally fair policies and procedures and in good faith." The accusation was later related by Anthony Silk, another instructor, in an assembly attended by the entire upper school student body, many of whom knew the identity of the student described in the presentation. The Biglers withdrew Shivani from the school on April 27, 2011, to avoid her having to accept an "undeserved" two-day suspension and the accompanying "lifelong mark against her record."

Shivani's complaint further related an incident in March of that year, in which Itokazu sarcastically belittled and humiliated her in front of other students. Shivani had participated in an academic competition sponsored by the Rotary Club. After her team finished second, Shivani went to his classroom after school to "share the news of her accomplishment" with Itokazu. Itokazu, however, "displayed a lack of interest that confused and hurt Shivani. She mentioned to him that she thought he would be happier for her. With several students in the classroom watching, Mr. Itokazu began jumping around a desk at the front of the classroom in a sarcastic 'dance,' sarcastically saying words to the effect that he was so happy with her second-place finish." He then "hopped up to Shivani and wrapped his arms around her while facing her, pinning her arms to her sides. He held Shivani tightly against him so she couldn't move or get free of his grip, then began hopping up and down with her, repeating words of similar sarcastic import as before." After several seconds of this "dancing" in front of the other students, Itokazu "released her with sufficient force to cause Shivani to fall backward onto the classroom floor, backpack and all."

Shivani asserted eight causes of action in her complaint. Against only Harker she alleged breach of contract and breach of the covenant of good faith and fair dealing, as a third-party beneficiary of the enrollment agreement signed by her parents; defamation occurring at the student assembly; and negligent hiring, retention, and/or supervision of Itokazu. She further alleged battery, defamation, and negligent infliction of emotional distress against both Harker and Itokazu arising out of Itokazu's conduct; and interference with prospective economic advantage against only Itokazu.

The same day they filed the complaint on Shivani's behalf, the Biglers initiated contractual arbitration in their own names, alleging breach of contract, breach of the covenant of good faith and fair dealing, and negligent hiring, retention, and/or supervision against Harker. Based on the same facts that were alleged in Shivani's complaint, the Biglers generally asserted that Harker violated their rights under the enrollment agreement and the Student/Parent Handbook to a "meaningful investigation" of the accusations against Shivani, to allow her to present her side of the story, and "to have Shivani be represented" at the Honor Council proceeding by her student adviser or another faculty member. The Biglers alleged that they had attempted to persuade Harker to re-evaluate the disciplinary consequences imposed on Shivani "and to honor its obligations to [the Biglers] under the enrollment agreement, Handbook, and other sources of express and implied obligation." In both the first two claims the Biglers finally asserted that they were entitled to a declaration from the arbitrator regarding whether Shivani was entitled under the contract and the good-faith covenant to receive fair procedures for investigating and remediating allegations of academic dishonesty. As a result of Harker's denial of a fair hearing to Shivani, the Biglers themselves had allegedly suffered "irreparable harm" through Shivani's loss of future educational and employment opportunities and the loss of both their and Shivani's association with the Harker community.*fn2

Thus, in the Biglers' first and second arbitration claims, Harker was alleged to have made an "arbitrary and capricious decision to discipline Shivani," in violation of the "rules, policies, procedures, and standards contained in the Handbook and/or any other source of rights and obligations controlling the contractual relationship between Mr. and Mrs. Bigler and Harker." In the third claim they alleged a duty by Harker, acting in loco parentis, to use reasonable care in hiring, supervising, and retaining faculty. Harker failed to use such care; it knew or should have known that Itokazu was an "unfit and/or incompetent" teacher who posed a "substantial and unreasonable risk of harm to Harker students, including Shivani."

Defendants demanded arbitration of Shivani's claims, but the Biglers refused, citing defects in the demand. On June 10, 2011, defendants petitioned the superior court for an order to compel the Biglers to arbitrate Shivani's claims. They relied on the following paragraph in the enrollment contract the Biglers had signed for the 2010-2011 school year: "Arbitration. [¶] I understand and agree that any dispute involving the School, except with respect to my obligation to pay tuition or fees, shall be resolved by arbitration. Arbitration shall be conducted in Santa Clara County by a single neutral arbitrator according to the commercial rules of the American Arbitration Association then in effect. The decision of the arbitrator shall be final and binding, with no right of appeal. The arbitrator shall award attorneys' fees and costs, including the expense of arbitration, to the prevailing party."

In the petition defendants noted that the Biglers themselves had demanded arbitration of their own claims, which overlapped those of Shivani, yet they had refused to arbitrate Shivani's third-party beneficiary claims under the same contract. Thus, defendants argued, equitable estoppel prevented the Biglers from depriving defendants of the same right to arbitration. Defendants added that if they prevailed, they would waive the contract provision entitling them to attorney fees.

The Biglers opposed the petition on the ground that enforcement of the arbitration provision against Shivani would be procedurally and substantively unconscionable. The provision was procedurally unconscionable, they argued, because (1) the enrollment contract was a "take-it-or-leave-it, adhesory" contract imposed on them by a stronger party, (2) application of the provision would be oppressive in view of the "nature of the harm Shivani suffered and the inadequacy of the arbitral forum to make her whole," (3) the contract contained an "illegal fee-shifting provision," (4) Harker failed to provide them with a copy of ...

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