Filed 9/28/20 Cohen v. Mylife.com CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JOSEPH COHEN, etc., D076067
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2018-
00060911-CU-BT-CTL)
MYLIFE.COM, INC.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Joel R. Wohlfiel, Judge. Reversed and remanded with directions.
Morrison & Foerster, Mark C. Zebrowski, and Benjamin S. Kagel for
Defendant and Appellant.
Schonbrun Seplow Harris & Hoffman, Helen I. Zeldes, Ben Travis, and
Paul L. Hoffman for Plaintiff and Respondent.
This is an appeal from an order denying the renewed motion of
defendant MyLife.com, Inc. (Defendant), to compel arbitration of the first
amended complaint (complaint) in the underlying lawsuit filed by plaintiff
Joseph Cohen (Plaintiff), on behalf of himself and all others similarly
situated. The trial court declined to enforce the arbitration provision in the
parties’ contract, ruling that it is void.
Because the parties “clearly and unmistakably” agreed that the
arbitrator, not the court, is to determine questions of arbitrability, we reverse
and remand with directions to grant Defendant’s motion. As a result, we do
not decide whether the arbitration provision is void, leaving that and related
issues for the arbitrator to decide in the first instance, pursuant to the
parties’ agreement.
I. FACTUAL AND PROCEDURAL BACKGROUND1
According to Defendant, through its website, MyLife.com, Defendant
provides online services that allow people “to understand and manage the
information that is available in the public domain about them.” Defendant
obtains this information from third-party sources and organizes it into a
“profile.” Anyone who conducts a “ ‘name search’ ” is able to view the
information in a person’s profile for free; whereas those who pay a
membership fee have access to more detailed information, as well as the
ability to manage the information in their profiles.
Defendant provides its services pursuant to the terms of a user
agreement (User Agreement) that is available on the home page and
numerous subpages of the MyLife.com website and is accessible by clicking
on a hyperlink. Anyone who uses Defendant’s service is subject to the terms
of the User Agreement; and, according to the terms of the User Agreement, a
user accepts the agreement in one (or more) of three ways: accessing the
1 In response to Plaintiff’s complaint, Defendant filed a motion to compel
arbitration. In support of and in opposition to the motion, the parties filed
declarations. The facts recited in the text, post, are based on the evidence
contained in the declarations or allegations contained in the complaint.
2
MyLife.com website “in any manner”; completing the registration or signing
in process; or subscribing to a paid membership.
In the complaint, Plaintiff alleges generally that “Defendant places
false and misleading incendiary information in [consumers’] profiles” that
harms consumers’ reputations and, more specifically, that his profile
contained such information. As a result, Plaintiff seeks “public injunctive
relief” under the state’s Unfair Competition Law (Bus. & Prof. Code, § 17200
et seq.) and the Consumer Legal Remedies Act (Civ. Code, § 1750 et seq.) and
individual relief for fraud and rescission of contract. According to his
appellate brief, by these claims, Plaintiff wants “to stop Defendant from
publishing false and reckless information about individuals.”
In response to the complaint, Defendant filed a renewed motion to
compel arbitration or, in the alternative, to stay the proceedings.2 Defendant
based the motion on an arbitration provision (Arbitration Provision) in the
User Agreement that Plaintiff entered into with Defendant. The Arbitration
Provision is found at section I.7. of the User Agreement and provides, in part,
that the parties “agree to arbitrate all disputes and claims arising out of or
relating to this [User] Agreement between [Defendant] and [Plaintiff].” The
Arbitration Provision also contains language that delegates to the arbitrator
all issues to be decided (Delegation Clause). In part the Delegation Clause
provides: “All issues are for the arbitrator to decide, including the scope of
this arbitration clause[.]” (Italics added.) In part, the Delegation Clause also
incorporates the Commercial Dispute Resolution Procedures and the
Supplementary Procedures for Consumer Related Disputes of the American
2 The parties do not tell us anything about a prior motion to compel
arbitration.
3
Arbitration Association (AAA Rules), which expressly give the arbitrator the
authority to determine threshold issues of arbitrability.3 Pursuant to the
Delegation Clause, Defendant argued to the trial court that issues of
arbitrability are for the arbitrator, not the court, to decide.
Plaintiff opposed the motion on the following grounds: the User
Agreement is void; no agreement exists between the parties; the Arbitration
Provision is invalid; the Delegation Clause does not apply to the
determination of arbitrability (leaving that issue to the court); and the User
Agreement is unconscionable.
Defendant filed a reply, relying on the Delegation Clause and the
argument that, by entering into the User Agreement—which contains the
Delegation Clause nested within the Arbitration Provision—the parties
3 Rule R-8 of the AAA Rules is entitled “Jurisdiction” (Rule R-8) and
provides in relevant part: “(a) The arbitrator shall have the power to rule on
his or her own jurisdiction, including any objections with respect to the
existence, scope or validity of the arbitration agreement. [¶] (b) The
arbitrator shall have the power to determine the existence or validity of a
contract of which an arbitration clause forms a part. Such an arbitration
clause shall be treated as an agreement independent of the other terms of the
contract. A decision by the arbitrator that the contract is null and void shall
not for that reason alone render invalid the arbitration clause.”
( [as of Sept. 28, 2020], archived at
.)
Defendant does not cite to Rule R-8, instead relying on rule R-7 of the
AAA’s “Commercial Arbitration Rules and Mediation Procedures.” We note
that this rule R-7 of the Commercial Arbitration Rules and Mediation
Procedures (also entitled “Jurisdiction”) is almost verbatim the same as
rule R-8 of the AAA Rules, quoted in the immediately preceding paragraph.
( [as of
Sept. 28, 2020], archived at .)
4
agreed to have the arbitrator, not the court, determine all issues, including
the arbitrability of Plaintiff’s claims.
At the hearing, the court confirmed its tentative ruling and denied
Defendant’s motion. As relevant to the principal issue we decide in this
opinion, the court concluded that because the Delegation Clause did not
“clear[ly] and unmistakab[ly]” delegate threshold arbitrability questions to
the arbitrator, the court was required to determine them. Following that
ruling, the court decided the issue of arbitrability, concluding that the
Arbitration Provision was void and unenforceable because it contained
language that contravened California public policy (i.e., the statutory right to
public injunctive relief). (Citing McGill v. Citibank, N.A. (2017) 2 Cal. 5th
945 and Roberts v. AT&T Mobility LLC (N.D.Cal., Mar. 14, 2018, No. 15-CV-
03418-EMC) 2018 WL 13173464.)
Defendant timely appealed. (Code Civ. Proc., § 1294, subd. (a).)
II. DISCUSSION
On appeal, Defendant argues that the Delegation Clause “clearly and
unmistakably” delegates issues of arbitrability to the arbitrator and that no
contract defenses to the Delegation Clause apply. As we explain, we agree.
There is no uniform standard for reviewing an order denying a motion
to compel arbitration. (Lopez v. Bartlett Care Center, LLC (2019) 39
Cal.App.5th 311, 317.) “ ‘ “ ‘ “If the court’s order is based on a decision of fact,
then we adopt a substantial evidence standard. [Citation.] Alternatively, if
the court’s denial rests solely on a decision of law, then a de novo standard of
review is employed.” ’ ” ’ ” (Ibid.) “Where, as here, the language of the
4 The court of appeals affirmed the district court’s order in an
unpublished memorandum filed after completion of briefing in this appeal.
(Roberts v. AT&T Mobility LLC (9th Cir. 2020) 801 Fed.Appx. 492.)
5
arbitration agreement is not in dispute and the [trial court’s] arbitrability
determination was not based on the credibility of extrinsic evidence, the
applicable standard [of review] is de novo.” (Harshad & Nasir Corp. v. Global
Sign Systems, Inc. (2017) 14 Cal.App.5th 523, 543-544.)
The party seeking arbitration (here, Defendant) bears the burden of
proving the existence of an arbitration agreement, whereas the party seeking
to avoid arbitration (here, Plaintiff) bears the burden of establishing a
defense to its enforcement. (Pinnacle Museum Tower Assn. v. Pinnacle
Market Development (US), LLC (2012) 55 Cal.4th 223, 236 (Pinnacle);
Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 890 (Aanderud).)
A. The Federal Arbitration Act, not the California Arbitration Act, Applies
As a preliminary issue, we must determine whether the Federal
Arbitration Act (FAA; 9 U.S.C. § 1 et seq.) or the California Arbitration Act
(Code Civ. Proc., § 1280 et seq.) applies to the issues on appeal.
Plaintiff contends that the state act applies because, pursuant to
section II.16. of the User Agreement,5 the parties agreed that the User
Agreement “is governed by the laws of the State of California, U.S.A., without
regard to its conflicts of law provisions.” Defendant, by contrast, contends
that the FAA applies because the User Agreement governs internet or online
services, which involve interstate commerce.6 Defendant has the better
position.
5 Section II.16. is part of the User Agreement’s terms of service for
subscription (also known as premium) membership.
6 In its order denying Defendant’s motion, the trial court cited evidence
and expressly found that “Defendant is in the business of facilitating internet
related searches of individual background information” and that “Defendant’s
6
“ ‘The FAA applies when the contract [containing the arbitration
provision] “evidences a transaction involving interstate commerce.” ’ ”
(Philadelphia Indemnity Ins. Co. v. SMG Holdings, Inc. (2019) 44
Cal.App.5th 834, 840.) In this context, “the word ‘involving’ is broad and is
indeed the functional equivalent of ‘affecting’ ” interstate commerce. (Allied-
Bruce Terminix Companies, Inc. v. Dobson (1995) 513 U.S. 265, 273-274.)
Because “use of the internet is intimately related to interstate commerce”
(United States v. Sutcliffe (9th Cir. 2007) 505 F.3d 944, 952), Defendant’s
online services provided over the internet, through the MyLife.com website
and User Agreement, involve or affect interstate commerce. Therefore, the
FAA applies. (Philadelphia Indemnity Ins. Co., at p. 840; see 9 U.S.C. § 2.)
Plaintiff’s reliance on a general choice of law provision (User
Agreement, § II.16.) in an application of the Arbitration Provision (User
Agreement, § I.7.) is misplaced. First, to the extent California law would
contradict the parties’ agreement “to arbitrate all disputes and claims” here,
“a general choice-of-law clause within an arbitration provision does not
trump the presumption that the FAA supplies the rules for arbitration.”
(Sovak v. Chugai Pharmaceutical Co. (9th Cir. 2002) 280 F.3d 1266, 1270;
accord, Aviation Data, Inc. v. American Express Travel Related Services Co.,
Inc. (2007) 152 Cal.App.4th 1522, 1535.) For this reason, “we will interpret
the choice-of-law clause as simply supplying state substantive, decisional law,
and not state law rules for arbitration.” (Sovak, at p. 1270.)
Because the authorities on which Plaintiff relies are materially
distinguishable, he does not convince us otherwise. In both Volt Info.
Sciences v. Leland Stanford Jr. U. (1989) 489 U.S. 468 and Mastick v. TD
business operations are interstate in nature[.]” This finding is supported by
substantial evidence, and Plaintiff does not challenge it in any event.
7
Ameritrade, Inc. (2012) 209 Cal.App.4th 1258, California law was applied
because there were parties to the litigation that were not parties to the
contract containing the arbitration provision. (Volt, at pp. 475-477; Mastick,
at p. 1264.) Here, both parties to the litigation are parties to the User
Agreement, which contains the Arbitration Provision.
B. The Delegation Clause, by Which the Arbitrator Determines Threshold
Issues of Arbitrability, is Enforceable
“A written provision in . . . a contract evidencing a transaction
involving commerce to settle by arbitration a controversy thereafter arising
out of such contract . . . shall be valid, irrevocable, and enforceable, save
upon such grounds as exist at law or in equity for the revocation of any
contract.” (9 U.S.C. § 2.) This statute “is a congressional declaration of a
liberal federal policy favoring arbitration agreements, notwithstanding any
state substantive or procedural policies to the contrary.” (Moses H. Cone
Memorial Hosp. v. Mercury Constr. Corp. (1983) 460 U.S. 1, 24 (Moses H.
Cone); accord, AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339
(Concepcion).) “California law, like federal law, favors enforcement of valid
arbitration agreements.” (Armendariz v. Foundation Health Psychcare
Services, Inc. (2000) 24 Cal.4th 83, 97 (Armendariz), abrogated in part on
another ground in Concepcion, at pp. 339-340; accord, Aanderud, supra, 13
Cal.App.5th at p. 889.)
As a result of this “ ‘strong public policy in favor of arbitration[,] . . .
any doubts regarding the arbitrability of a dispute are resolved in favor of
arbitration.’ ” (Aanderud, supra, 13 Cal.App.5th at p. 890; accord, Moses H.
Cone, supra, 461 U.S. at pp. 24-25 [the FAA “establishes that, as a matter of
federal law, any doubts concerning the scope of arbitrable issues should be
resolved in favor of arbitration”].) This policy does not come into play,
however, until after a court has found the parties agreed to arbitrate their
8
dispute. (Metters v. Ralphs Grocery Co. (2008) 161 Cal.App.4th 696, 701
(Metters).) That is because “ ‘ “[t]here is no public policy favoring arbitration
of disputes which the parties have not agreed to arbitrate.” ’ ” (Ibid.)
The FAA “allows parties to agree by contract that an arbitrator, rather
than a court, will resolve threshold arbitrability questions as well as
underlying merits disputes.” (Henry Schein, Inc. v. Archer and White Sales,
Inc. (2019) __ U.S. __, __ [139 S.Ct. 524, 527 (Henry Schein), citing Rent-A-
Center, West, Inc. v. Jackson (2010) 561 U.S. 63, 68-70 (Rent-A-Center); see
Rent-A-Center, at pp. 69-70 [“parties can agree to arbitrate ‘gateway’
questions of ‘arbitrability,’ such as whether the parties have agreed to
arbitrate or whether their agreement covers a particular controversy”]; First
Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 943-944 (First
Options).) In the event “the parties’ contract delegates the arbitrability
question to an arbitrator, a court may not override the contract”; under such
circumstances, “a court possesses no power to decide the arbitrability issue.”
(Henry Schein, at p. __ [139 S.Ct.at p. 529].)
If the parties dispute the threshold or gateway question of
arbitrability—i.e., “whether their arbitration agreement applies to the
particular dispute”—then “the question of who decides arbitrability is itself a
question of contract.” (Henry Schein, supra, __ at p. __ [139 S.Ct.at p. 527].)
The court determines the answer to that question. (Howsam v. Dean Witter
Reynolds, Inc. (2002) 537 U.S. 79, 84 [courts decide “ ‘question[s] of
arbitrability’ ”] (Howsam); see 9 U.S.C. § 4.)
In cases subject to the FAA, when deciding whether the parties agreed
to arbitrate a particular dispute, including arbitrability, courts “should apply
ordinary state-law principles that govern the formation of contracts.” (First
Options, supra, 514 U.S. at p. 944; accord, Wagner v. Stratton Oakmont, Inc.
9
(9th Cir. 1996) 83 F.3d 1046, 1049 [“We interpret the contract by applying
general state-law principles of contract interpretation, while giving due
regard to the federal policy in favor of arbitration by resolving ambiguities as
to the scope of arbitration in favor of arbitration.”].) As a general rule,
relevant state law requires the court to determine whether the parties
objectively intended to submit the issue to arbitration. (First Options, at
p. 944.)
Where, as here, the issue is arbitrability, the court does not look to the
contract as a whole; the only question is whether, under state law, the parties
knowingly agreed to arbitrate issues of arbitrability under the contract.
(Prima Paint Corp. v. Flood & Conklin Mfg. Co. (1967) 388 U.S. 395, 403-
404.) Challenges to the validity of the underlying contract (e.g., fraud in the
inducement, ambiguity, lack of consideration, mutual mistake,
unconscionability) are not considered at this stage. (Ibid.)
Where, as here, the parties’ agreement (User Agreement) contains an
agreement to arbitrate (Arbitration Provision) that contains a term
delegating issues of arbitrability to the arbitrator (Delegation Clause), we
must determine whether the Delegation Clause is enforceable. (Aanderud,
supra, 13 Cal.App.5th at p. 891.) Here, because there is no dispute about the
existence of the Arbitration Provision, Plaintiff bears the burden of
establishing a defense to its enforcement, including first the Delegation
Clause. (Id. at p. 890; see Pinnacle, supra, 55 Cal.4th at p. 236.)
We defer the question of arbitrability to the arbitrator only where
“ ‘there is clear and unmistakable evidence’ ” that the parties intended to
delegate this determination. (Henry Schein, supra, __ U.S. at p. __ [139 S.Ct.
at p. 531], quoting First Options, supra, 514 U.S. at p. 944; accord, Rent-A-
Center, supra, 561 U.S. at p. 69, fn. 1; Howsam, supra, 537 U.S. at p. 83;
10
Aanderud, supra, 13 Cal.App.5th at p. 893.) “The ‘clear and unmistakable’
test reflects a ‘heightened standard of proof’ that reverses the typical
presumption in favor of the arbitration of disputes.” (Aanderud, at p. 892.)
For a delegation clause to be enforceable, there are “ ‘two prerequisites’ ”:
(1) “ ‘the language of the clause must be clear and unmistakable’ ”; and
(2) “ ‘the delegation must not be revocable under state contract defenses such
as fraud, duress, or unconscionability.’ ” (Ibid.)
1. The Language of the Delegation Clause is Clear and
Unmistakable
The Delegation Clause at issue in this appeal provides in full:
“The arbitration shall be governed by the Commercial
Dispute Resolution Procedures and Supplementary
Procedures for Consumer Related Disputes (collectively,
‘AAA Rules’) of the American Arbitration Association
(‘AAA’), as modified by this Agreement, and shall be
administered by the AAA. All issues are for the arbitrator
to decide, including the scope of this arbitration clause, but
the arbitrator is bound by the terms of this Agreement. A
judgment upon the award entered by the arbitrator may be
entered in any court having jurisdiction thereof.”7
Plaintiff contends that, because this language “ ‘is silent regarding the
determination of enforceability . . . , it is presumed th[e] Court determines
the issue or arbitrability.’ ”
Consistently, Plaintiff attempts to distinguish many of the authorities
on which Defendant relies on the basis that, in those cases, the applicable
provision expressly delegated to the arbitrator determinations of the
“enforceability” or the “validity” of the arbitration agreement at issue (italics
7 Defendant tells us that this language, contained within the Arbitration
Provision, is the Delegation Clause “in full.” Although Plaintiff focuses on
one sentence in particular (“All issues are for the arbitrator to decide . . . .”),
he does not argue otherwise.
11
added). (See Aanderud, supra, 13 Cal.App.5th at p. 892 [“ ‘validity, or
enforceability’ ”]; Malone v. Superior Court (2014) 226 Cal.App.4th 1551,
1560 [“enforceability”]; Taylor v. Shutterfly, Inc. (N.D. Cal., Sept. 11, 2018,
No. 18-CV-00266-BLF) 2018 WL 4334770, at *3 [“enforceability”]; Olivas v.
Hertz Corp. (S.D. Cal. Mar. 12, 2018, No. 17-CV-01083-BAS-NLS) 2018 WL
1306422, at *10 [“validity”].) Plaintiff’s attempt to distinguish those cases is
misplaced, however, because there is no authority that requires an
enforceable delegation clause to affirmatively mention or to specifically
reference or incorporate the issues of arbitrability, enforceability, or validity
of the arbitration agreement. To the contrary, as we explained ante, for a
delegation clause to be enforceable, the “ ‘two prerequisites’ ” are that the
language of the clause “ ‘be clear and unmistakable’ ” and that the delegation
not be “ ‘revocable under state contract defenses.’ ” (Aanderud, supra, 13
Cal.App.5th at p. 892.)
By the Delegation Clause here, the parties clearly and unmistakably
agreed to delegate to the arbitrator “[a]ll issues . . . , including the scope of
this arbitration clause”—which necessarily includes the issue of arbitrability.
(Italics added.) In addition, by the Delegation Clause here, the parties also
clearly and unmistakably agreed to incorporate the AAA Rules, which
expressly provide that the arbitrator will decide “his or her own jurisdiction,
including any objections with respect to the existence, scope or validity of the
arbitration agreement.”8 (Rule R-8, italics added; see fn. 3, ante.)
8 We acknowledge, as Plaintiff points out, that Rule R-8 does not
delegate to the arbitrator exclusive authority to determine arbitrability.
Nonetheless, it is additional evidence that, contrary to Plaintiff’s principal
argument (and the ruling of the trial court), the Delegation Clause is not
silent on issues related to arbitrability. It evidences the parties’ intent that
the arbitrator, not the court, decide such issues.
12
Plaintiff contends that the parties’ incorporation of the AAA Rules
(and, presumably, Rule R-8 in particular) “is insufficient to establish
delegation in consumer contracts involving at least one unsophisticated
party.”9 (Citing Eiess v. USAA Federal Savings Bank (N.D. Cal. 2019) 404
F.Supp.3d 1240, 1253 (Eiess).10) We express no opinion on this issue, since
the record in this case contains no evidence, either way, regarding Plaintiff’s
sophistication.
Plaintiff suggests that Ajamian v. CantorCO2e, L.P. (2012) 203
Cal.App.4th 771 (Ajamian) is “instructive.” However, based on the
differences between the parties’ agreement in Ajamian and in the present
case, Ajamian supports the contention that the parties here clearly and
unmistakably delegated to the arbitrator the issue of arbitrability. In
Ajamian, the parties agreed to resolve by arbitration “[a]ny disputes,
differences or controversies” in an employment agreement between the
9 We infer from Plaintiff’s argument and the authorities he cites (e.g.,
Brennan v. Opus Bank (9th Cir. 2015) 796 F.3d 1125; Galilea, LLC v. AGCS
Marine Ins. Co. (9th Cir. 2018) 879 F.3d 1052, 1062; Dream Theater, Inc. v.
Dream Theater (2004) 124 Cal.App.4th 547) that, absent a showing of at least
one unsophisticated party, incorporation of arbitration rules in which the
arbitrator is delegated the responsibility of determining issues of arbitrability
is sufficient evidence of a clear and unmistakable delegation.
10 Eiess suggests that the defendant, as the moving party, is required to
present “evidence that [the plaintiff] possesses a heightened level of
sophistication.” (Eiess, supra, 404 F.Supp.3d at p. 1254.) However, the
moving party is required only to establish the existence of an arbitration
agreement; after that, the party opposing arbitration has the burden of
establishing a defense to any delegation clause (Pinnacle, supra, 55 Cal.4th
at p. 236; Aanderud, supra, 13 Cal.App.5th at p. 890), which would be the
time to present evidence of the parties’ sophistication. Plaintiff did not do so
here.
13
plaintiff and her employer. (Id. at p. 783, italics added.) The court concluded
that this language was ambiguous: It could cover all disputes, differences or
controversies including arbitrability; or it could be limited to “substantive
disputes, claims or controversies.” (Id. at p. 783.) The agreement contained
further ambiguity as to the scope of the arbitrator’s powers in that it
delegated to “a ‘court of competent jurisdiction’ ” the authority to determine
whether a specific covenant in the agreement was impermissibly broad. (Id.
at p. 792.) Since, under this delegation of power, the parties agreed that the
court could limit the scope of the covenant, such an agreement was
inconsistent with the argument that the parties intended that all disputes be
decided by the arbitrator. (Id. at p. 793.) In contrast, here the parties agreed
that the arbitrator would decide “[a]ll issues” without limitation—“including
the scope of this arbitration clause.” (Italics added.)
For the foregoing reasons, the parties clearly and unmistakably agreed
to delegate to the arbitrator all questions regarding the arbitrability of the
User Agreement.
2. The Delegation Clause is Not Unconscionable
Even where the parties clearly and unmistakably agree to delegate
issues of arbitrability to the arbitrator, “ ‘the delegation must not be
revocable under state contract defenses such as . . . unconscionability.’ ”
(Aanderud, supra, 13 Cal.App.5th at p. 892.) In this regard, Plaintiff argues
that the Delegation Clause is “void due to the contract defense of
unconscionability.” Plaintiff, as “the party opposing arbitration[,] bears the
burden of proving . . . unconscionability.” (Pinnacle, supra, 55 Cal.4th at
p. 236.)
State law applicable to contracts generally governs whether a valid
arbitration agreement exists. (Perry v. Thomas (1987) 482 U.S. 483, 492,
fn. 9; Metters, supra, 161 Cal.App.4th at p. 701.) As will be outcome
14
determinative in this appeal, “[w]hen determining whether a delegation
clause is unconscionable, any claim of unconscionability must be specific to
the delegation clause.” (Aanderud, supra, 13 Cal.App.5th at p. 895, italics
added; Nielsen Contracting, Inc. v. Applied Underwriters, Inc. (2018) 22
Cal.App.5th 1096, 1109 (Nielsen Contracting) [court resolves challenge to a
delegation clause only “when a specific contract challenge is made to the
delegation clause”].) In Rent-A-Center, supra, 561 U.S. 63, for example,
because, in the trial court, “none of [the] substantive unconscionability
challenges was specific to the delegation provision,” the Supreme Court did
not reach the merits of the argument that the arbitration provision was
unconscionable. (Id. at pp.73, 75-76.)].)
Thus, as potentially applicable to the contract at issue in the present
appeal, California state law provides in relevant part: “If the court as a
matter of law finds the . . . [Delegation C]lause of the contract to have been
unconscionable at the time it was made the court may refuse to enforce the
[User Agreement], or it may enforce the remainder of the [User Agreement]
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), italics added; see Armendariz, supra, 24 Cal.4th at
p. 114.)
“ ‘[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.”
(Armendariz, supra, 24 Cal.4th at p. 114.) “ ‘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 . . . clause under the
doctrine of unconscionability.’ ” (Ibid., italics added.) However, the two types
15
of unconscionability “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.” (Ibid.) In application, “by the use of a sliding
scale, a greater showing of procedural or substantive unconscionability will
require less of a showing of the other to invalidate the claim.” (Ajamian,
supra, 203 Cal.App.4th at p. 795.)
Here, with regard to substantive unconscionability, Plaintiff relies on
the following two arguments:
• “the provisions in the User Agreement [A]rbitration [P]rovision that
deny Plaintiff a right to public injunctive relief are the exact type of
provisions that are substantively unconscionable under California law,
as it denies Plaintiff any forum for him to seek to enforce his statutory
rights” (initial italics added); and
• “the User Agreement contains a clause that states in part, ‘We may
modify any of the terms and conditions contained in this [User]
Agreement at any time in our sole discretion. The updates and all
changes will be posted at mylife.com/user-agreement.’ ” (Italics added.)
Since neither of these unconscionability challenges is specific to the
Delegation Clause, however, Plaintiff has not presented for our consideration
any claim of substantive unconscionability. (Rent-A-Center, supra, 561 U.S.
at pp. 72 [“unless [the party opposing the delegation] challenged the
delegation provision specifically, we must treat it as valid”], 73 [“we need not
consider that claim because none of [the party’s] substantive
unconscionability challenges was specific to the delegation provision”];
Aanderud, supra, 13 Cal.App.5th at p. 895 [“any claim of unconscionability
must be specific to the delegation clause”]; Nielsen Contracting, supra, 22
16
Cal.App.5th at p. 1108 [“an argument that the arbitration agreement or the
underlying contract is unenforceable is not sufficient to trigger the court’s
obligation to resolve contentions regarding the enforceability of a severable
delegation clause”].)
Plaintiff argues that, because the User Agreement (at § II.10.) grants
Defendant the sole discretion to modify the terms and conditions of the
agreement, the Delegation Clause (at § I.7.) is unconscionable. However,
Plaintiff has forfeited appellate consideration of s argument, since he did not
raise it in the trial court. (Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44
Cal.4th 1334, 1350, fn. 12 [“ ‘A party is not permitted to change his position
and adopt a new and different theory on appeal. To permit him to do so
would not only be unfair to the trial court, but manifestly unjust to the
opposing litigant.’ ”].) More to the point, in Rent-A-Center, supra, 561 U.S.
63, the party arguing that an arbitration agreement was unconscionable “did
not contest the validity of the delegation provision in particular” until the
appeal to the Supreme Court. (Id. at p. 74, italics added.) Because “[h]e
brought this challenge to the delegation provision too late,” “he forfeited” it.
(Id. at pp. 75-76 & fn. 5.)
In any event, even if we assume that the modification provision
(§ II.10.) is unconscionable, that does not make the Delegation Clause (§ I.7.)
unconscionable.
In Ingle v. Circuit City Stores, Inc. (9th Cir. 2003) 328 F.3d 1165, the
lone authority on which Plaintiff relies, the provision allowing for unilateral
modifications by the employer was contained in the arbitration provision
itself, and allowed the employer to “modify or terminate any and all dispute
resolution agreements with its employees unilaterally.” (Id. at p. 1179.) In
contrast, here, the provision allowing for unilateral modifications is contained
17
in an entirely separate section of the User Agreement and does not mention
the Delegation Clause. Thus, Plaintiff’s challenge is not to the
unconscionability of the Delegation Clause (§ I.7.) but rather to the
unconscionability of the modification provision (§ II.10.).
Moreover, “the fact that one party reserves the implied power to
terminate or modify a unilateral contract is not fatal to its enforcement,
if the exercise of the power is subject to limitations, such as fairness
and reasonable notice.” (Asmus v. Pacific Bell (2000) 23 Cal.4th 1, 16
[employment security policy].) As this requirement of fairness and
reasonable notice applies in the context of an agreement to arbitrate
disputes, “the unilateral right to modify the arbitration agreement[, including
a delegation provision,] is restricted by the implied covenant of good faith and
fair dealing.” (Serpa v. California Surety Investigations, Inc. (2013) 215
Cal.App.4th 695, 708, fn. 7.) More specifically, pursuant to this restriction,
“implied in the unilateral right to modify [a delegation clause nested in an
arbitration provision] is the accompanying obligation to do so upon
reasonable and fair notice.” (Id. at p. 708.) For this reason, therefore, had we
reached the merits of Plaintiff’s untimely argument, because “the implied
covenant of good faith and fair dealing limits [Defendant’s] authority to
unilaterally modify the arbitration agreement” (ibid.), we would have had
little difficulty concluding that an application of the implied covenant to the
modification provision (§ II.10.) would preclude the Delegation Clause (§ I.7.)
from being substantively unconscionable on its face under California law.
Accordingly, even without considering Plaintiff’s claim of procedural
unconscionability, Plaintiff has not met his burden of proving that the
Delegation Clause is unconscionable.
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3. Conclusion
Because the language of the Delegation Clause is clear, unmistakable,
and not unconscionable, it is enforceable. (Aanderud, supra, 13 Cal.App.5th
at p. 892.) The trial court erred in concluding otherwise.
Thus, the arbitrator shall determine all issues of arbitrability; and for
this reason, we do not reach—and, thus, express no opinion on—Plaintiff’s
argument that the Arbitration Provision is void.
III. DISPOSITION
The order denying Defendant’s renewed motion to compel arbitration of
Plaintiff’s first amended complaint is reversed. The matter is remanded with
directions to grant the motion and to either stay or dismiss the action, as
requested in the renewed motion. Defendant is entitled to its costs on appeal.
(Cal. Rules of Court, rule 8.278(a)(2).)
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.
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