Cal.Rptr.3d 474] APPEAL from a judgment of the Superior Court
of Sacramento County, Christopher E. Krueger, Judge.
Reversed. (Super. Ct. No. 34201380001636)
[Copyrighted Material Omitted]
Employment Law and Maloney Employment Law and C. Christine
Maloney, Oakland, for Plaintiffs and Appellants.
Sears Linkert & Jaime and Ronald E. Enabnit, Sacramento, for
Defendant and Respondent California Community College
Attorneys and Richard R. Clouse and Erin A. Halas, Rancho
Cucamonga, for Defendant and Respondent Southern California
Acting P. J.
this case, we are asked to determine the enforceability of an
arbitration agreement under the law of unconscionability.
"Unconscionability consists of both procedural and
substantive elements. [Citation.] Procedural
unconscionability ‘addresses the circumstances of contract
negotiation and formation, focusing on oppression or surprise
due to unequal bargaining power.’ [Citation.] ‘Substantive
unconscionability pertains to the fairness of an agreement’s
actual terms and to assessments of whether they are overly
harsh or one-sided.’ [Citation.] Both elements must be
present for a court to refuse to enforce an arbitration
agreement. [Citation.] However, the elements do not need to
be present in the same degree and are evaluated on a ‘ "
‘sliding scale.’ " ’ [Citation.] ‘ " ‘[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.’
" ’ [Citation.] ‘The ultimate issue in every case is
whether the terms of the contract are sufficiently unfair, in
view of all relevant circumstances, that a court should
withhold enforcement.’ " (Magno v. The College
Network, Inc. (2016) 1 Cal.App.5th 277, 284-285, 204
California Community College Athletic Association (Athletic
Association) [254 Cal.Rptr.3d 475] administers
intercollegiate athletics for the California community
college system. The parties agree that, as a condition of
participating in the intercollegiate football league,
plaintiff Bakersfield College (the College) agreed to be
bound by the Athletic Association’s bylaws and constitution,
including a provision requiring the College to resolve any
sanctions and penalty disputes by binding arbitration.
Instead of proceeding through binding arbitration to
challenge the sanctions and penalty decisions issued by the
Athletic Association and codefendant the Southern California
Football Association (the Football Association) (collectively
defendants) against the College, the College and coplaintiffs
Jeffrey Chudy and the Kern Community College
District (collectively plaintiffs) elected to
file civil litigation. Plaintiffs argued they were excused
from pursuing binding arbitration because the arbitration
provision was unconscionable.
trial court said the "issue [wa]s close," but
ultimately, after severing the one-sided attorney fees
subsections, found the arbitration provision was not
unconscionable. The trial court, therefore, found plaintiffs’
litigation was barred by the failure to exhaust their
agree with the trial court that this was a close case but
conclude the arbitration provision was unconscionable.
Accordingly, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Football Association is a football conference organized under
the Athletic Association’s constitution and bylaws to
regulate intercollegiate football competition among 37
California community colleges within its geographic
boundaries. Pursuant to the Athletic Association’s
constitution, the Football Association, as a conference, or
its conference commissioner may impose sanctions on the
Athletic Association’s member colleges. The College is one
such member college.
member college is required to follow and is subject to the
Athletic Association’s constitution and bylaws. As is
pertinent here, article 7 of the Athletic Association’s
constitution sets forth an appeals process. The appeals
process applies to an appeal defined as "a written
request by the college president requesting a review of an
inferior body’s interpretation of the rules and/or the
enforcement of a penalty." The process starts with a
ruling by a conference commissioner, who is "responsible
for the first level interpretation, ruling, and enforcement
of th[e] Constitution and Bylaws ." "The
conference commissioner shall interpret and rule on the
provisions of the Constitution and Bylaws for
colleges, students, college administrators, and employees of
member schools in his/her conference."
appeal from a conference commissioner’s ruling flows as
follows: first to the conference appeals board (here, the
Football Association), then to the Athletic Association
appeals board, then to the Athletic Association board, and
finally to binding arbitration before a three-person panel.
The appeals are generally decided based on the original
materials submitted at the first level of appeal and no
additional materials [254 Cal.Rptr.3d 476] may be provided at
the next level of appeal.
binding arbitration provision provides a panel shall be
established to "include approximately twelve individuals
who are familiar with the California Community Colleges,
their procedures, their intercollegiate athletic programs and
the [Athletic Association]." The panel members are
appointed for three-year terms in a rotating manner.
panel members shall be nominated by the Athletic
Association’s executive and the executive director of the
Community College League of California (the League). Member
colleges may also nominate a person to
serve on the panel and "shall have a reasonable voice in
the selection of the persons appointed to the Panel."
The Athletic Association’s executive director and the
League’s executive director "shall make the final
decision regarding appointment."
college wishes to pursue binding arbitration, it must submit
the arbitration request in writing to the Athletic
Association’s executive director within five working days of
the Athletic Association board’s denial of an appeal. At the
same time, the college must give written notice of the
"facts and issues to be determined" in arbitration.
A party to the arbitration has the right to be represented by
an attorney at any proceeding or hearing; "[h]owever, to
minimize the expense and to encourage cooperation and
collegiality, it is desired that the services of legal
counsel not be over-utilized."
five working days after receiving a request for arbitration,
the Athletic Association’s executive director shall present a
list of panel members to the Athletic Association board and
the president of the appealing college. The Athletic
Association board and the president of the appealing college
shall thereafter agree to three panelists to preside over the
arbitration within five working days. If ...