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Peng v. First Republic Bank

California Court of Appeals, First District, First Division

August 29, 2013

ANNA PENG, Plaintiff and Respondent,
v.
FIRST REPUBLIC BANK, Defendant and Appellant.

Pub. Order 9/26/13 (See End of Opn.).

Superior Court of San Francisco City and County, No. CGC-11-516927 Hon. Harold E. Kahn Judge

Miller Law Group, Joseph P. Mascovich, Mary L. Guilfoyle, Bethany A. Vasquez, Noah Levin for Defendant and Appellant.

Law Offices of Waukeen Q. McCoy, Waukeen Q. McCoy for Plaintiff and Respondent.

DONDERO, J.

Plaintiff Anna Peng sued her employer, defendant First Republic Bank, for employment discrimination, intentional infliction of emotional distress, and wrongful termination. The trial court denied defendant’s motion to compel arbitration, finding the parties’ arbitration agreement to be fatally unconscionable. The court rejected defendant’s argument that the unconscionable provisions, if any, were severable. We conclude the agreement is not unconscionable and now reverse.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff began working for defendant as an assistant manager in September 2005. In 2007, defendant became a wholly owned subsidiary of Merrill Lynch & Co., Inc. In January 2009, Bank of America purchased Merrill Lynch and subsequently sold defendant to private investors. Defendant emerged as an independent bank on July 1, 2010.

On March 26, 2010, defendant made a written offer to plaintiff for employment as an assistant manager with the newly chartered bank. The offer was subject to plaintiff’s agreement to be bound by a number of employment conditions and policies, including defendant’s arbitration agreement. The offer stated that it was valid for 25 days.

The offer enclosed a single page with the words “ARBITRATION AGREEMENT” (Agreement) appearing in bold, capital letters at the top. The Agreement provides, in part: “The undersigned Employee, [plaintiff], Assistant Manager, and [defendant] agree that any claims either party has arising out of or relating to the Employee’s employment shall be resolved by final and binding arbitration. Arbitration shall apply to any and all common law or statutory claims, with the exception of any claims that the Employee may have for workers’ compensation benefits or unemployment compensation benefits.”

Although she had 25 days to consider the offer, plaintiff accepted it after four days and signed the Agreement on March 30, 2010. She did not object or express any reluctance to signing the Agreement at the time it was presented to her. Nor did she express any concerns about the Agreement at any time during her employment.

Defendant terminated plaintiff’s employment on May 23, 2011, for reasons that are not material to the issues on appeal.

On December 28, 2011, plaintiff filed a complaint alleging claims against defendant for race and gender discrimination, equal pay/compensation discrimination, hostile work environment, retaliation, intentional infliction of emotional distress, and wrongful termination in violation of public policy.

On February 2, 2012, defendant moved to compel arbitration, contending plaintiff had agreed to arbitrate all claims arising out of her employment. The motion was based ...


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