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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.

Filed 10/2/13 (unmodified version attached)

Pub. Order 9/26/13

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.

ORDER MODIFYING OPINION

BY THE COURT:

It is ordered that the opinion filed herein on August 29, 2013, be modified as follows:

1. On page 3, footnote 1, delete the last sentence of the footnote beginning “In Sanchez, the Supreme Court stated” and the subsequent citation.

There is no change in the judgment.

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 ...


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