Opinion
B294020
03-18-2020
SHO INOUYE, Plaintiff and Appellant, v. THE WELLPOINT COMPANIES OF CALIFORNIA, INC., Defendant and Respondent.
Gabriel J. Pimentel for Plaintiff and Appellant. Seyfarth Shaw, Jeffrey A. Wortman, and Amanda I. Fry for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BC527929) APPEAL from a judgment of the Superior Court of Los Angeles County, Teresa A. Beaudet, Judge. Affirmed. Gabriel J. Pimentel for Plaintiff and Appellant. Seyfarth Shaw, Jeffrey A. Wortman, and Amanda I. Fry for Defendant and Respondent.
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A former employee sued his former employer for wrongful termination and several other claims. The trial court granted the employer's motion to compel arbitration, and the arbitrator ultimately denied the employee all relief after eight days of hearings. The employee now argues that the trial court erred in compelling arbitration. We conclude there was no error, and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
In August 2010, Sho Inouye (plaintiff) started "work[ing] for" The WellPoint Companies of California, Inc. (WellPoint) "on a temporary, contract basis" through a temp agency called Populus Agency. Plaintiff worked as an auditor.
On December 3, 2010, plaintiff filled out an online job application to become a full-time WellPoint employee. The application contained a one-page, four paragraph Acknowledgment. The last paragraph provided:
If I am an applicant for employment in California, I understand if employed, I will be subject to the WellPoint California Arbitration policy. Thus, I agree to submit any dispute related to my employment or the termination of my employment to final and binding arbitration, as more fully described in the WellPoint California Arbitration policy.The final page of the application contained plaintiff's electronic signature.
In early February 2011, WellPoint offered plaintiff a full-time position. On February 10, 2011, it sent him a letter "confirm[ing] [its] offer" and fixing his "first day" as February 28, 2011. In the letter, WellPoint also informed plaintiff that it "uses an electronic onboarding tool to facilitate . . . pre-employment paperwork"; that plaintiff needed "to review and complete" "several forms" "prior to [his] first day of employment"; that WellPoint would be sending him an "email" "invite into [a] secure, personalized new hire portal"; and that, "as an associate of WellPoint," plaintiff would "be subject to the Company's binding arbitration policy, as more fully described on" WellPoint's intranet at "My HR, HR Policies, Arbitration." The letter explained that plaintiff's employment was "contingent upon receipt of [a] signed copy of this letter" that "accept[ed] the terms of th[e] Offer" as set forth in the letter. Plaintiff signed this letter.
WellPoint's arbitration policy (the policy) provided for the arbitration of "all claims arising out of or relat[ing] to the termination of [an associate's employment] (and for associates commencing employment in 2001 or later, all legal disputes)." The policy applied equally to WellPoint and all employees. The policy granted each side the right to conduct discovery, including the right to subpoena witnesses and documents, the right to depose one non-expert and one expert witness, and the right to "additional discovery that the Arbitrator finds the party requires to adequately arbitrate a claim, including access to essential documents and witnesses." The parties were entitled to a "full hearing" before an arbitrator who is a retired judge or "experienced . . . employment" lawyer, where each party had the right to be represented by counsel, to "present evidence and examine and cross-examine [the] witnesses," to file pre- and post-hearing briefs, to receive a "written opinion explaining the factual and legal basis for the award," and to file a motion for reconsideration. The party initiating any arbitration had to pay the filing fee and arbitrator's fee, but the employee's liability for such fees was capped at $250. The non-initiating party got to choose whether the procedures to be used are those from JAMS or the AAA. In a section entitled "Requirements for Modification or Revocation," the policy provided that it "can be revoked only by a writing signed by both the company's Chief Executive Officer and the [employee], which specifically states an intent to revoke this policy."
Plaintiff started his permanent employment with WellPoint on February 28, 2011.
Wellpoint fired plaintiff ten months later, on December 28, 2011.
II. Procedural Background
On November 15, 2013, plaintiff sued WellPoint and his immediate supervisor and alleged 12 different claims for relief. Plaintiff alleged that he was fired for (1) initially refusing to backdate multiple audits and filing a false expense report, and (2) later reporting to WellPoint that he had been pressured to backdate and file false reports and that other WellPoint employees were withholding audit results that had been completed.
Those claims were (1) violation of "Whistleblowing Law," (2) retaliation, (3) disability discrimination, (4) disability harassment, (5) failure to prevent discrimination and harassment, (6) failure to pay overtime compensation, (7) failure to provide itemized and accurate wage and hour statements, (8) waiting time penalties, (9) violation of the Unfair Competition Law, (10) wrongful termination, (11) intentional infliction of emotional distress, and (12) negligent infliction of emotional distress.
In February 2014, WellPoint filed a motion to compel arbitration and to stay plaintiff's pending lawsuit. Plaintiff opposed the motion, but submitted no evidence in opposition. After receiving WellPoint's reply and holding a hearing, the trial court granted the motion to compel.
The matter proceeded to arbitration in October 2017 on four claims—namely, retaliation in violation of the federal and California False Claims Acts, retaliation in violation of the Labor Code, and wrongful termination. The arbitration took eight days, during which time the parties called 17 witnesses and introduced 454 exhibits. The arbitrator ruled that plaintiff's claims lacked merit and awarded him nothing; the arbitrator awarded WellPoint $7,955.52 in costs.
The trial court subsequently granted plaintiff's unopposed motion to confirm the arbitration award.
Following the entry of judgment, plaintiff filed this timely appeal.
DISCUSSION
Plaintiff argues that the trial court erred in granting WellPoint's motion to compel arbitration because (1) he never agreed to arbitrate, and even if he did, (2) his agreement to do so was unconscionable and hence unenforceable. This appeal is timely because an order granting a motion to compel arbitration is appealable following the entry of a final judgment. (Cox v. Bonni (2018) 30 Cal.App.5th 287, 299; Jenks v. DLA Piper Rudnick Gray Cary US, LLP (2015) 243 Cal.App.4th 1, 7; see generally Code Civ. Proc., § 1294.2.)
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
I. Agreement to Arbitrate
Because arbitration is a "'matter of consent'" (Stolt-Nielsen S.A. v. AnimalFeeds Int'l Corp. (2010) 559 U.S. 662, 681), a trial court may grant a motion to compel arbitration only if "it determines that an agreement to arbitrate the controversy exists." (§ 1281.2; Long v. Provide Commerce, Inc. (2016) 245 Cal.App.4th 855, 861 [this is a "'"threshold question"'"].) The party moving to compel arbitration bears the burden of producing "prima facie evidence of a written agreement to arbitrate." (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.) A valid agreement to arbitrate, like any contract, rests upon "'"mutual assent"'" (Esparza v. Sand & Sea, Inc. (2016) 2 Cal.App.5th 781, 788 (Esparza), quoting Donovan v. RRL Corp. (2001) 26 Cal.4th 261, 270), which is evaluated "'"objective[ly]"'" by looking to "'"the reasonable meaning of the[ parties'] words and acts, and not their unexpressed intentions or understandings"' [citation]" (Harris v. TAP Worldwide, LLC (2016) 248 Cal.App.4th 373, 381 (Harris)). We review a finding that such an agreement exists de novo where the facts were undisputed (Id. at p. 380), and for substantial evidence where they were (Banner Entertainment, Inc. v. Superior Court (1998) 62 Cal.App.4th 348, 357).
As a threshold matter, it is far from clear that plaintiff's argument that he never agreed to arbitrate is properly before us. Plaintiff concedes that he is raising this argument for the first time on appeal. He nonetheless argues that this should be overlooked because the reasons he proffers for why there was no agreement at all are similar to the reasons he proffered to the trial court for why the policy was unconscionable. Not allowing plaintiff to recycle the same challenges in the service of a different type of challenge would, in his view, be "hyper-technical." Precedent seems to disagree, as several cases have treated the issues of whether there is an agreement to arbitrate and whether an agreement is unconscionable as distinct and, more to the point, not fungible. (E.g., Esparza, supra, 2 Cal.App.5th at p. 792; Flores v. Nature's Best Distribution, LLC (2016) 7 Cal.App.5th 1, 11.)
We do not tarry over whether plaintiff has forfeited his right to raise these challenges because those challenges are directed at a finding that the trial court necessarily made, that is, a finding that there was a valid agreement to arbitrate. We further conclude that plaintiff's challenges lack merit because plaintiff and WellPoint entered into a valid agreement to arbitrate, and do so for two independent reasons.
First, plaintiff agreed to be bound by the policy when he signed the February 10, 2011 offer letter. Because the trial court granted WellPoint's motion to compel, the court necessarily found that there was a valid agreement to arbitrate and, hence, necessarily found that plaintiff and WellPoint had agreed to the policy and, hence, necessarily found that plaintiff had had the opportunity to review the policy. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1134 ["the appellate court will imply findings to support the judgment"].) We are to review such "implied factual findings under the substantial evidence standard" (Fladeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 60), and thus to indulge "all reasonable inferences" to support those findings (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 958; Union Oil Co. v. Union Sugar Co. (1948) 31 Cal.2d 300, 314). Here, substantial evidence supports the trial court's implied finding that plaintiff had the opportunity to review the policy and thereafter assented to the policy. The February 10, 2011 offer letter indicated that WellPoint would grant him access to the "new hire portal" where he could access all "pre-employment paperwork," and provided plaintiff with instructions on how to access the policy on WellPoint's system. Plaintiff thereafter signed that offer letter, thereby indicating that he "accept[ed] the terms" of the letter, including the term that he would be "subject to" the policy. He also started working for WellPoint a few weeks later, which was permitted only if he filled out all the necessary paperwork accessible through the new hire portal. From these facts, the trial court could reasonably infer that WellPoint granted plaintiff access to its new hire portal, that this access included the ability to review the policy, that plaintiff reviewed all the necessary paperwork, or at least had the opportunity to do so (see Harris, supra, 248 Cal.App.4th at p. 383 [failure to "read or take the time to understand" an arbitration policy is "legally irrelevant"]; Avery Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 65-66 (Avery) [willful ignorance of a policy is no excuse]), and that plaintiff assented to that paperwork by signing the letter and beginning his permanent employment. Critically, plaintiff offered no evidence to dispute any of these reasonable inferences. On this record, therefore, the trial court had an ample basis for finding that plaintiff had agreed to arbitrate his claims.
Second, plaintiff separately agreed in his job application to "submit any dispute related to [his] employment or the termination of [his] employment" to arbitration, and this agreement is a distinct agreement to arbitrate separate and apart from the policy. A valid agreement to arbitrate can be formed in a job application. (E.g., Balandran v. Labor Ready, Inc. (2004) 124 Cal.App.4th 1522, 1530 ["an employment application can contain an arbitration clause regarding disputes arising out of the subsequent employment"]; Roman v. Superior Court (2009) 172 Cal.App.4th 1462, 1467 [same]; Mago v. Shearson Lehman Hutton, Inc. (9th Cir. 1992) 956 F.2d 932, 933-934 [same].) And where, as here, there is an "arbitration clause . . . in [an] employment application," an employee's assent to that clause can constitute an enforceable agreement to arbitrate, even if the application refers to a more extensive arbitration policy to which the employee did not have access at the time of the application. (Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 392, 396-397.) Thus, substantial evidence supports the trial court's finding that plaintiff's electronic signature on his job application bound him to the separate agreement to arbitrate contained in that application.
Plaintiff resists the conclusion that he agreed to arbitrate with what boils down to three arguments.
First, he argues that the trial court was wrong to rely on the job application and February 10, 2011 offer letter because WellPoint never proved that his signatures on those documents were authentic.
This argument lacks merit. In opposing WellPoint's motion to compel arbitration, Plaintiff never contested the authenticity of his electronic signature on the job application or his written signature on the offer letter. Because plaintiff did not raise this issue, WellPoint was not obligated to refute it. That is because a party moving to compel arbitration "is not required to authenticate an opposing party's signature on an arbitration agreement as a preliminary matter in moving for arbitration or in the event the authenticity of the signature is not challenged." (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 846; Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4th 1047, 1060; Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218; cf. Fabian v. Renovate America, Inc. (2019) 42 Cal.App.5th 1062, 1065, 1067-1068 [entertaining challenge to authenticity of signature when signatory contested it before the trial court]; Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1223 [party petitioning to compel arbitration may not rely upon arbitration agreement signed by other party's lawyer].)
Plaintiff responds with the general maxim that "a litigant may raise for the first time on appeal a pure question of law which is presented by undisputed facts" (De Anza Santa Cruz Mobile Estates Homeowners Assn. v. De Anza Santa Cruz Mobile Estates (2001) 94 Cal.App.4th 890, 908), and asserts that the inauthenticity of his signatures fits within this maxim. He is wrong. The facts regarding the authenticity of his signatures are not in dispute only because he never disputed them. Had he done so, WellPoint would have had the opportunity to introduce further evidence of their authenticity. By lying in wait until appeal, plaintiff has deprived WellPoint of the ability to do so and is now trying to use that inability to declare himself the victor. Courts do not tolerate such gamesmanship. (Sacramentans for Fair Planning v. City of Sacramento (2019) 37 Cal.App.5th 698, 718 ["The exception to the forfeiture rule for issues of law raised for the first time on appeal does not apply to unresolved factual issues."]; Marsango v. Automobile Club of Southern California (1969) 1 Cal.App.3d 688, 695 ["To permit a change of theory on appeal is to allow one party to deal himself a hole card to be disclosed only if he loses."]; see generally Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 780 ["stringently appl[ying]" maxim allow issues to be raised on appeal "when the new theory depends on controverted factual questions whose relevance thereto was not made to appear at trial"].)
Second, plaintiff contends that, even if his signatures are authentic, his consent to arbitration is still invalid because (1) he never had the opportunity to review the policy—or the AAA or JAMS rules potentially applicable under the policy—prior to starting his employment with WellPoint because he never had access to WellPoint's intranet where the policy was housed, and (2) another acknowledgment document he signed on February 13, 2011 attesting that he "read" various "documents . . . made available to [him] on the new hire portal" and would "abid[e] by the policies and procedures listed therein" did not cure this deficiency because the document did not list the policy among the "documents" he attested to reading. For support, he cites Sparks v. Vista Del Mar Children & Family Services (2012) 207 Cal.App.4th 1511(Sparks), overruled in part by Harris v. TAP Worldwide, LLC (2016) 248 Cal.App.4th 373, 390 and Trivedi v. Curexo Technology Corp. (2010) 189 Cal.App.4th 387 (Trivedi), overruled in part on another ground by Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1248 (Baltazar).
This argument lacks merit for several reasons. To begin, and as described above, the trial court's finding that plaintiff had access to the policy through the new hire portal, and "accept[ed]" the policy after having the opportunity to review it, is supported by substantial evidence. This renders Sparks inapt, because Sparks held that placing an arbitration policy in an "informational" handbook "not intended to create a contract of employment" did not automatically bind to arbitration an employee who received that handbook. (Sparks, supra, 207 Cal.App.4th at pp. 1520-1523; accord, Esparza, supra, 2 Cal.App.5th at pp. 790-793 [same]; Grey v. American Management Services (2012) 204 Cal.App.4th 803, 808 [uploading arbitration policy onto company intranet does not create binding agreement to arbitrate].) And if plaintiff entered into an agreement to arbitrate by virtue of submitting his job application that is separate and apart from the policy, plaintiff's access to the policy is of no consequence. Substantial evidence in any event supports an implicit factual finding that plaintiff had access to WellPoint's intranet prior to starting as a permanent employee. That is because he was, in the words of his own complaint, "work[ing] for" WellPoint "on a temporary, contract basis" at the time he submitted his job application. This constitutes a judicial admission. (Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th 1264, 1271 ["The admission of fact in a pleading is a 'judicial admission'" and is binding on the party making that admission].) A trial court could reasonably infer that, although a temporary contract employee for a company might not fill out employment paperwork for that company, that employee nonetheless has access to the company's internal website in order to do his job. Again, critically, plaintiff offered no evidence to dispute this otherwise reasonable inference. WellPoint's failure to give plaintiff a copy of the AAA or JAMS rules—an omission plaintiff raises for the first time on appeal (Crawford v. JPMorgan Chase Bank, N.A. (2015) 242 Cal.App.4th 1265, 1274 [forfeiture])—is also of no consequence unless the content of those rules somehow renders the arbitration unconscionable (Baltazar, supra, 62 Cal.4th at p. 1246), and plaintiff makes no such argument. This renders Trivedi inapt, because it dealt with the failure to disclose the AAA rules that granted the employer a right to prevailing party attorney fees without the limitation imposed by the Labor Code on such an award. (Trivedi, supra, 189 Cal.App.4th at p. 395; see also Harper v. Ultimo (2003) 113 Cal.App.4th 1402, 1406-1407 [arbitration rules limited available remedies].)
Third and lastly, plaintiff argues that the policy is unenforceable because it unilaterally grants WellPoint the right to modify its terms, thereby rendering the contract illusory. "A contract is unenforceable as illusory when one of the parties has the unfettered or arbitrary right to modify or terminate the agreement . . . ." (Harris, supra, 248 Cal.App.4th at p. 385; Davis v. TWC Dealer Group, Inc. (2019) 41 Cal.App.5th 662, 674-675 (Davis).) The policy is not illusory. As noted above, it has a section entitled "Requirements for Modification or Revocation," and contains a single paragraph providing that the policy "can be revoked only by a writing signed by both the company's Chief Executive Officer and the [employee], which specifically states an intent to revoke this policy." As we read this language, the policy (a) allows for revocation only upon the consent of both parties, and (b) does not allow for modification at all. Thus, it does not unilaterally grant WellPoint any right to modify and does not render the policy illusory and hence unenforceable.
Because this argument is specific to the policy, it does not apply to the extent we rely upon the validity of the separate agreement to arbitrate in plaintiff's job application.
Plaintiff resists this conclusion. He argues that the policy's modification and revocation clause renders the policy illusory because, in his view, there is a distinction between modifying a contract and revoking it, and the policy's limitations on revocation do not apply to its modification and thus grant WellPoint the unfettered power to modify the policy at its whim. We need not decide whether plaintiff's proffered distinction is valid because, assuming it is, WellPoint's right to modify the policy is still restrained by the implied covenant of good faith and fair dealing, which requires employers to exercise any seemingly unfettered power to modify an arbitration agreement "'fairly and in good faith,'" so as not to render the agreement illusory and unenforceable. (Peng v. First Republic Bank (2013) 219 Cal.App.4th 1462, 1473-1474 (Peng); 24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1214 (24 Hour Fitness); Peleg v. Neiman Marcus Group, Inc. (2012) 204 Cal.App.4th 1425, 1433 (Peleg); Serpa v. California Surety Investigations, Inc. (2013) 215 Cal.App.4th 695, 706 (Serpa); Harris, supra, 248 Cal.App.4th at p. 389 (overruling the contrary analysis in Sparks, supra, 207 Cal.App.4th 1511; Avery, supra, 218 Cal.App.4th at p. 61; see generally, Asmus v. Pacific Bell (2000) 23 Cal.4th 1, 16.) At oral argument, plaintiff heralded Davis, supra, 41 Cal.App.5th 662, as renouncing the above cited solid wall of authority that reads the implied covenant into facially unilateral modification clauses to save them. To be sure, Davis listed four different aspects of the three internally inconsistent arbitration agreements at issue in that case that rendered them substantively unconscionable, and listed as one of those aspects the employer's "unilateral right to change or modify the [arbitration] agreement at any time." (Id. at p. 675.) But Davis made no mention of the above cited precedent that calls for the incorporation of the implied covenant yet at the same time cited Peleg, which incorporates that precedent. We therefore decline to read Davis's silence as rejecting the above cited precedent and, to the extent Davis so suggests, we respectfully disagree with Davis.
Plaintiff again asserts his argument that he was not aware of the policy's terms, but this is (a) not supported by the record, and (b) irrelevant because plaintiff's awareness of a contract's potentially illusory terms has no bearing on whether they are, under the law, illusory (cf. Fitz v. NCR Corp. (2004) 118 Cal.App.4th 702, 722 [party's awareness of one-sided contractual terms does not render them less one-sided]).
Plaintiff alternatively points to language in his job application and in the February 13, 2011 acknowledgment he signed. The job application says that "WellPoint has the right to modify its policies and practices without giving [the employee] notice of the changes," and the acknowledgment says that the "policies and procedures" listed in that letter "are continually evaluated and may be amended, modified, deleted or added to, as WellPoint deems appropriate at any time." Plaintiff's alternative argument also lacks merit. For starters, the modification and/or revocation clauses in these other documents are different from the modification and/or revocation clause in the policy itself, and the policy's clause is the one that applies to the policy itself; the others are accordingly irrelevant. (See Harris, supra, 248 Cal.App.4th at p. 387 ["the more specific provision must be enforced"].) Plaintiff goes on to argue that the language in the acknowledgment letter allows for modification "at any time," that this language is "express" language that cannot be "saved" by the implied covenant for good faith and fair dealing, and that this language therefore impermissibly empowers WellPoint to retroactively modify the arbitration agreement even as to accrued claims. This argument fails because the acknowledgment letter (1) by its own terms does not apply to the policy (as the acknowledgment does not list the policy as one of the documents plaintiff is acknowledging), and (2) does not expressly speak to retroactive modification of the arbitration procedures as to pending claims, and its silence on this point means that the implied covenant still applies. (Peleg, supra, 204 Cal.App.4th at p. 1465 [so holding]; Serpa, supra, 215 Cal.App.4th at p. 708 [same].)
For these reasons, the trial court correctly concluded that plaintiff had agreed to arbitrate the instant dispute.
II. Unconscionability
Like any other contract, an agreement to arbitrate is invalid if it is unconscionable. (OTO, LLC v. Kho (2019) 8 Cal.5th 111, 125 (OTO); 9 U.S.C. § 2; § 1281; Civ. Code, § 1670.5, subd. (a).) A party seeking to invalidate an agreement to arbitrate as unconscionable bears the burden of proving its unconscionability. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) A contract is unconscionable if there is "'"'"an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party."'"'" (Baltazar, supra, 62 Cal.4th at p. 1243.) Consequently, the doctrine of unconscionability requires proof of both procedural unconscionability and substantive unconscionability; the more of one that exists, the less of the other than must exist for a contract to be declared invalid due to unconscionability. (Id. at pp. 1243-1244.) Procedural unconscionability is assessed along a "'spectrum'": At one end are "'contracts that have been freely negotiated'"; at the other are "'[c]ontracts of adhesion that involve surprise or other sharp practices.'" (Id. at p. 1244.) Substantive unconscionability exists when a contract's term are themselves "'"'overly harsh'"'" or "'"'so one-sided as to "shock the conscience."'"'" (Ibid.) We independently review a finding that that an agreement is unconscionable where the facts were undisputed (Serpa, supra, 215 Cal.App.4th at p. 702), and for substantial evidence where they were (Carlson v. Home Team Pest Defense, Inc. (2015) 239 Cal.App.4th 619, 630).
The trial court did not err in concluding that the policy is not unconscionable. To be sure, the policy is an adhesion contract because WellPoint required plaintiff to "accept[]" it without modification as a condition of his permanent employment. But adhesive arbitration agreements are "typical[]" in the employment context (OTO, supra, 8 Cal.5th at p. 126), and qualify as a "low" degree of procedural unconscionability absent further proof that the employee was "lied to, placed under duress, or otherwise manipulated into signing the arbitration agreement." (Baltazar, supra, 62 Cal.4th at p. 1245; Serpa, supra, 215 Cal.App.4th at p. 704.) Plaintiff proffers no such proof of deception or duress. Because it comes with a relatively low degree of procedural unconscionability, the policy is unconscionable only if it has a high degree of substantive unconscionability due to overly harsh and one-sided terms. (Dotson v. Amgen, Inc. (2010) 181 Cal.App.4th 975, 982.) The terms of the policy do not meet this threshold. The policy binds both WellPoint and the signatory employee to arbitrate all of their claims; caps the employee's arbitration fees at a reasonable level; grants both sides equal rights to discovery, a fair hearing, and a written award based on the evidence; and does not limit (or for the employer, expand beyond statutory law) their remedies. Such terms are not substantively unconscionable. (E.g., Peng, supra, 219 Cal.App.4th at pp. 1472-1473 [both parties' claims subject to arbitration; not unfair]; 24 Hour Fitness, supra, 66 Cal.App.4th at p. 1213 [equal rights to discovery and open remedies; not unfair].)
Plaintiff makes no argument at all as to whether the streamlined agreement to arbitrate in the job application is unconscionable. He has accordingly waived any such argument on appeal.
Plaintiff contends that the policy suffers from high degrees of both procedural and substantive unconscionability.
He asserts that the policy suffers from "overwhelming" procedural unconscionability because (1) he never had access to the policy before he "accept[ed]" it, and (2) the references to the policy in his job application and in the February 10, 2011 offer letter were "hidden within" these large documents in "small font." His first argument lacks merit because, as explained above, substantial evidence supports that plaintiff did have access to the policy prior to accepting it as a term of his employment. Thus, plaintiff's reliance on Chavarria v. Ralphs Grocery Co. (9th Cir. 2013) 733 F.3d 916, 922-926, is inapt because the employee in that case did not receive a copy of the arbitration policy until after she allegedly agreed to it and because the policy in that case was also substantively unconscionable. Plaintiff's second argument lacks merit because the references to arbitration set forth in his job application and offer letter were in no sense hidden. The job application was 22 pages long only because it required plaintiff to fill in his resume; the application's reference to the policy appeared on a separate Acknowledgment page with only four paragraphs, and the policy was discussed in its own separate paragraph—the last one on the page. The February 10, 2011 offer letter was less than two pages long and discussed the policy on the first page. Contrary to what plaintiff seems to suggest, an arbitration agreement does not have to be on its own page in 24-point font to be valid.
Plaintiff also asserts that the policy was substantively invalid because it (1) granted WellPoint a unilateral—and hence, unfairly one-sided—power to modify the policy, and (2) applied only to an employee's claims because, as a practical matter, it was unlikely WellPoint would ever have a claim against an employee. We have already rejected the first argument. Plaintiff cites Ingle v. Circuit City Stores, Inc. (9th Cir. 2003) 328 F.3d 1165 (Ingle) for the proposition that an employer's power to modify an arbitration agreement renders it invalid. (Id. at p. 1179.) That is certainly what Ingle says, but Ingle—as other courts have noted—got California law wrong because it completely ignored the long and unbroken precedent applying the implied covenant of good faith and fair dealing to place limits on the seemingly unlimited power to revoke. (E.g., Borgarding v. JPMorgan Chase Bank (C.D. Cal. 2016) 2016 U.S. Dist. LEXIS 191612, *23-24 ["Ingle's holding on unilateral modification provisions no longer accurately describes California law."].) And plaintiff's second argument invites us to elevate speculation over who might sue whom more often (because plaintiff has offered no evidence on this point) over the plain language of the policy, which expressly applies to "claims the company may have against the associate." For obvious reasons, we decline this invitation.
We also reject plaintiff's Davis-based argument that WellPoint's failure to "countersign" the arbitration agreement renders that agreement substantively unconscionable; where, as here, the agreement by its plain language binds the employer and is required as a condition of employment, we reject the suggestion that the employer is somehow not bound by the agreement because it did not affix a signature to the agreement.
For these reasons, the trial court correctly ruled that the policy is not unconscionable.
* * *
Because, as both parties concede, the trial court decided for itself whether there was an agreement to arbitrate and whether the agreement was unconscionable, we have no reason to address the parties' further, labored discussion over whether the policy impermissibly delegated to the arbitrator the authority to decide those issues.
DISPOSITION
The judgment is affirmed. WellPoint is entitled to its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, Acting P.J.
ASHMANN-GERST /s/_________, J.
CHAVEZ