Jenkins v. Dermatology Management, LLC

Filed 11/20/24; Certified for Publication 12/19/24 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
ANNALYCIA JENKINS,
Plaintiff and Respondent,
v.
DERMATOLOGY
MANAGEMENT, LLC,
Defendant and Appellant.
2d Civ. No. B333759
(Super. Ct. No. 22CV-0564)
(San Luis Obispo County)
Appellant Dermatology Management, LLC, employed
respondent Annalycia Jenkins. After respondent had resigned
from her position, she brought a class action against appellant.
Appellant appeals from the trial court’s order denying its motion
to compel respondent to arbitrate her claims pursuant to an
arbitration agreement that she signed on her first day of work.
(Code Civ. Proc., § 1294, subd. (a).)
We conclude the arbitration agreement is procedurally and
substantively unconscionable. We reject appellant’s contention
that the trial court abused its discretion in refusing to sever the

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substantively unconscionable provisions and enforce the
remainder of the arbitration agreement. Accordingly, we affirm.
Our affirmance renders moot appellant’s contention that the trial
court erroneously denied its motion to dismiss respondent’s class
claims “because nothing in the [arbitration] agreement would
permit [her] to bring proposed class claims in arbitration.”
Factual and Procedural Background
Appellant “owns and operates medical dermatology offices
for patients to receive medical services, examinations, surgery,
and treatments. Licensed health care providers treat patients for
skin cancer, acne, and other skin conditions. [Appellant] has
multiple offices across California as well as in Nevada and
Arizona.”
In May 2019 respondent began employment as “a medical
assistant” for appellant. On her first day of work, respondent
signed a three-page arbitration agreement (“the Agreement”).
Appellant had pre-signed the Agreement four months earlier in
January 2019.
In June 2020 respondent resigned from her position with
appellant. In October 2022 she filed a class action against
appellant for unfair competition. (Bus. & Prof. Code, § 17200, et
seq.)
Appellant filed a motion to compel respondent to arbitrate
her individual claims and to dismiss her class claims. Following
a hearing, the court ruled that the Agreement is unenforceable
because it is substantively and procedurally unconscionable. The
court determined that the Agreement is substantively
unconscionable because (1) there is a lack of mutuality since the
Agreement requires respondent to arbitrate all of her claims, but
exempts from mandatory arbitration certain claims of her

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employer;1 (2) the Agreement “shortens the applicable statute of
limitations of claims against [appellant] to one year”; (3) it
imposes unreasonable restrictions on the parties’ discovery
rights; and (4) it requires the parties to equally share the
arbitrator’s fees and costs.
The court ruled that the Agreement is procedurally
unconscionable because it is “an adhesive contract” that “was
prepared and signed by [appellant] months before [respondent]
was hired.” Moreover, “[i]t is unlikely that any potential
employee would understand the implications of [the
substantively unconscionable] clauses – namely, that it would be
very difficult to prevail in a case against the employer. Further,
there is a ‘minimum degree of procedural unconscionability that
is always present with an adhesive contract.’ [Citation.]” The
court “decline[d] to sever the unconscionable terms because they
are pervasive.”
Enforceability of Arbitration Agreements
“Federal and California law treat valid arbitration
agreements like any other contract and favor their enforcement.”
(Ramirez v. Charter Communications, Inc. (2024) 16 Cal.5th 478,
492 (Ramirez).) “‘A contract is unconscionable if one of the
parties lacked a meaningful choice in deciding whether to agree
and the contract contains terms that are unreasonably favorable
to the other party.’ [Citations.] Unconscionability has both a
procedural and a substantive element. [Citation.] The party
1 The Agreement provides, “This Agreement does not cover
those Claims by [appellant] for injunctive and/or other equitable
relief for unfair competition and/or the use and/or unauthorized
disclosure of trade secrets or confidential information, as to which
[respondent] understand[s] and agree[s] that [appellant] may
seek and obtain relief from a court of competent jurisdiction.”

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resisting enforcement of an arbitration agreement has the burden
to establish unconscionability.” (Ibid.)
“Procedural unconscionability ‘addresses the circumstances
of contract negotiation and formation, focusing on oppression or
surprise due to unequal bargaining power.’ [Citation.] This
element is generally established by showing the agreement is a
contract of adhesion, i.e., a ‘standardized contract which, imposed
and drafted by the party of superior bargaining strength,
relegates to the subscribing party only the opportunity to adhere
to the contract or reject it.’ [Citation.] Adhesion contracts are
subject to scrutiny because they are ‘not the result of freedom or
equality of bargaining.’ [Citation.] However, they remain valid
and enforceable unless the resisting party can also show that one
or more of the contract’s terms is substantively unconscionable or
otherwise invalid.” (Ramirez, supra, 16 Cal.5th at pp. 492-493.)
“Substantive unconscionability looks beyond the
circumstances of contract formation and considers ‘the fairness of
an agreement’s actual terms’ [citation], focusing on whether the
contract will create unfair or one-sided results [citation].
Substantively unconscionable contractual clauses ‘reallocate risks
in an objectively unreasonable or unexpected manner.’
[Citations.]” (Ramirez, supra, 16 Cal.5th at p. 493.)
“Both procedural and substantive elements must be
present to conclude a term is unconscionable, but these required
elements need not be present to the same degree. [Citation.]
Courts apply a sliding scale analysis under which ‘the more
substantively oppressive [a] term, the less evidence of procedural
unconscionability is required to come to the conclusion that the
term is unenforceable, and vice versa.’ [Citation.] ‘[W]hether a
contract is fair or works unconscionable hardship is determined

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with reference to the time when the contract was made and
cannot be resolved by hindsight by considering circumstances of
which the contracting parties were unaware.’” (Ramirez, supra,
16 Cal.5th at p. 493.)
Standard of Review
“Appellate review of an order regarding an arbitration
agreement's validity is de novo if the evidence is not in conflict
and the ruling is based entirely on an interpretation of law.
[Citation.] If a validity ruling rests on the trial court’s resolution
of evidentiary disputes, substantial evidence review applies to
the court's factual findings.” (Ramirez, supra, 16 Cal.5th at p.
493.) The parties agree that the trial court’s rulings on
procedural and substantive unconscionability are subject to de
novo review because they are based on undisputed facts.
The Agreement is Procedurally Unconscionable
“A court should consider substantive unconscionability only
after procedural unconscionability has been established. A
‘conclusion that a contract contains no element of procedural
unconscionability is tantamount to saying that, no matter how
one-sided the contract terms, a court will not disturb the contract
because of its confidence that the contract was negotiated or
chosen freely, that the party subject to a seemingly one-sided
term is presumed to have obtained some advantage from
conceding the term or that, if one party negotiated poorly, it is
not the court’s place to rectify these kinds of errors or
asymmetries. ” (Ramirez, supra, 16 Cal.5th at p. 494.)
Appellant contends respondent failed to carry her burden of
establishing that the Agreement is procedurally unconscionable
because she “has not submitted any evidence – including a
declaration of her own – as to the circumstances under which she

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signed the arbitration agreement.” Appellant made the same
contention below. The trial court responded: “[Appellant]
correctly points out that [respondent] did not file a declaration
describing unconscionable conditions regarding her signing of the
[A]greement. [Appellant] concludes this means there is no
evidence of procedural unconscionability. Had [respondent] filed
a declaration this would be an easy call. But even without a
declaration I feel there is enough evidence to show the minimal
amount of procedural unconscionability necessary to deny the
motion to compel [arbitration].”
We agree with the trial court that, despite the lack of a
declaration from respondent, the evidence establishes procedural
unconscionability. Johnna Rogers-Castro, appellant’s “vice
president of human resources,” declared: “The standard business
practice [when respondent was hired] was for the office’s practice
manager [Estephanie Abarca Calderon] to review all onboarding
documents, including . . . benefit forms, handbook
acknowledgment forms, and the mutual arbitration agreement,
with the newly hired employee on the employee’s first day. The
practice manager presented the documents and was available to
answer any questions.” Four months before appellant’s first day
of work, the Agreement had been signed by appellant’s “Chief
People Officer,” Siobhain McCarthy. How could respondent be
expected to negotiate with the office’s practice manager a
contract that had been pre-signed by appellant’s Chief People
Officer? A reasonable person in respondent’s position would have
concluded that the Agreement was a take-it-or-leave-it condition
of employment that could not be modified or refused. “No
evidence indicates [respondent] had any opportunity to negotiate

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or refuse to sign the arbitration agreement.” (Martinez v. Master
Protection Corp. (2004) 118 Cal.App.4th 107, 114 (Martinez).)
In any event, “a complaining party need not show it tried to
negotiate standardized contract terms to establish procedural
unconscionability.” (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 127
(OTO L.L.C.); see also Carbajal v. CWPSC, Inc. (2016) 245
Cal.App.4th 227, 244 [“To establish procedural unconscionability,
Carbajal was not required to show she attempted to negotiate the
terms of the Agreement because the imbalance of bargaining
power is apparent from the relationship between the parties. CW
Painting was an employer and Carbajal . . . was not a highly
sought-after employee”].)
The Agreement was a contract of adhesion. “An adhesive
contract is standardized, generally on a preprinted form, and
offered by the party with superior bargaining power ‘on a take-it-
or-leave-it basis.’” (OTO, supra, 8 Cal.5th at p. 126.) Appellant
clearly had superior bargaining power. Respondent was not a
doctor or a registered nurse. Rogers-Castro declared: “As part of
her job duties, [respondent] assisted in administrative and
clinical duties, including obtaining patient vital signs,[2] medical
history, transcribing patient visits into the medical charts,
stocking the room with medical supplies, answering patient
questions, and processing biopsies. On occasion, [respondent]
had to assist with obtaining authorization for patients’
prescription medications or surgeries, which required working
2“The four main vital signs” are body temperature, pulse
rate, respiration rate (rate of breathing), and blood pressure
<https://www.hopkinsmedicine.org/health/conditions-and-
diseases/vital-signs-body-temperature-pulse-rate-respiration-
rate-blood-pressure> [as of Sept. 3, 2024], archived at <https:
//perma.cc/BW5C-JFZL>.

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with [appellant’s] billing specialists based in Nevada and with
national health insurance entities.”
“[I]n the case of preemployment arbitration contracts, the
economic pressure exerted by employers on all but the most
sought-after employees may be particularly acute, for the
arbitration agreement stands between the employee and
necessary employment, and few employees are in a position to
refuse a job because of an arbitration requirement.” (Armendariz
v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th
at p. 115 (Armendariz).)
We conclude the Agreement is procedurally unconscionable
based on (1) the inequality of bargaining power between the
parties, (2) the signing of the Agreement by the Chief People
Officer four months before the Agreement was presented to
respondent, and (3) the absence of the Chief People Officer when
the Agreement was presented to respondent. Rogers-Castro
declared, “The practice manager presented the documents and
was available to answer any questions.”
The Agreement Contains Multiple
Substantively Unconscionable Provisions
Lack of Mutuality
The trial court ruled that the Agreement contains multiple
substantively unconscionable provisions. “‘“[T]he paramount
consideration in assessing [substantive] conscionability is
mutuality.”’” (Carmona v. Lincoln Millennium Car Wash, Inc.
(2014) 226 Cal.App.4th 74, 85.) The Agreement is lacking in
mutuality because it requires respondent to arbitrate all of her
claims against appellant, but exempts from mandatory
arbitration certain claims by appellant, including claims “for

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injunctive and/or other equitable relief for unfair competition.”
(See fn. 1 at p. 3, ante.)
Respondent sought injunctive and other equitable relief for
violations of the Unfair Competition Law (UCL). (Bus. & Prof.
Code, § 17200, et seq.; see Korea Supply Co. v. Lockheed Martin
Corp. (2003) 29 Cal.4th 1134, 1144 [“A UCL action is equitable in
nature; damages cannot be recovered”].) The Agreement requires
respondent’s UCL action to be arbitrated, but it does not require
appellant to arbitrate an action against respondent for injunctive
or other equitable relief for unfair competition. In Martinez,
supra, 118 Cal.App.4th at p. 115, the court concluded that a
similar provision “is substantively unconscionable” for lack of
mutuality.
Shortening of Statute of Limitations
The Agreement imposes a one-year statute of limitations
that starts to run on “the date the aggrieved party first has
knowledge of the event giving rise to the Claim.” Respondent’s
sole claim is a UCL claim, and “[a]ny action on any UCL cause of
action is subject to the four-year period of limitations created by
[Business and Professions Code section 17208].”3 (Cortez v.
3 Business and Professions Code section 17208 provides
that a UCL action “shall be commenced within four years after
the cause of action accrued.” “Traditionally at common law, a
‘cause of action accrues “when [it] is complete with all of its
elements”—those elements being wrongdoing, harm, and
causation.’ [Citations.]” (Aryeh v. Canon Business Solutions, Inc.
(2013) 55 Cal.4th 1185, 1191.)

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Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 179.)
The Agreement provides that any claim made after the expiration
of the one-year statute of limitations “shall be void and deemed
waived even if there is a federal or state statute of limitations
which would have given more time to pursue the Claim.”
“It is settled that parties may agree, in an arbitration
agreement or otherwise, to shorten the limitations period
applicable to a claim. [Citations.] However, the shortened
limitations period must be reasonable.” (Ramirez, supra, 16 Cal.
5th at p. 501.) The Court of Appeal held that an arbitration
agreement’s one-year statute of limitations was “unconscionable
because many of [the employee’s] claims have longer statute of
limitations.” (De Leon v. Pinnacle Property Management Services,
LLC (2021) 72 Cal.App.5th 476, 487, disapproved on other
grounds in Ramirez, supra, 16 Cal.5th at pp. 505-506.) In De
Leon the employee’s claims included a UCL claim. (Ibid; see also
Pinela v. Neiman Marcus Group, Inc. (2015) 238 Cal.App.4th 227,
254 [“‘Where, as in this case, arbitration provisions undermine
statutory protections, courts have readily found
unconscionability’”].)
Accordingly, “[t]he shortened [one-year] limitations period
provided by [appellant’s] arbitration agreement is unconscionable
and insufficient to protect its employees’ right to vindicate their
statutory rights.” (Martinez, supra, 118 Cal.App.4th at pp. 117-
118.)
Sharing Arbitrator’s Fees and Costs
Another substantively unconscionable provision is the
requirement that the parties “equally share [without limitation]
the fees and costs of the Arbitrator.” “[W]hen an employer
imposes mandatory arbitration as a condition of employment, the

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arbitration agreement or arbitration process cannot generally
require the employee to bear any type of expense that the
employee would not be required to bear if he or she were free to
bring the action in court.” (Armendariz, supra, 24 Cal.4th at pp.
110-111.) Thus, an employer can compel arbitration of a claim
only if the arbitration agreement “‘“does not require employees to
pay . . . any arbitrators’ fees or expenses as a condition of access
to the arbitration forum.”’” (Ramirez, supra, 16 Cal.5th at p.
504.)
“[T]he risk that a claimant may bear substantial costs of
arbitration . . . may discourage an employee from exercising the
constitutional right of due process.” (Martinez, supra, 118
Cal.App.4th at p. 116.) “The mere inclusion of the costs provision
in the arbitration agreement produces an unacceptable chilling
effect . . . .” (Id. at p. 117.)
Appellant contends the provision is not substantively
unconscionable because “[t]he arbitration agreement is governed
by AAA [American Arbitration Association] rules, requiring
[appellant] to pay arbitration costs.” (Capitalization and bold
omitted.) But the Agreement prevails over AAA rules. The
Agreement provides, “[Appellant] and [respondent] agree that,
except as provided in this Agreement, any arbitration shall be in
accordance with the then-current [rules] of the American
Arbitration Association . . . .” (Italics added.)
Limitation of Discovery
“[A]n arbitration agreement required as a condition of
employment must generally permit employees sufficient
discovery to adequately arbitrate any statutory claims. The scope
of what discovery is sufficient is determined by the arbitrator.”
(Ramirez, supra, 16 Cal. 5th at p. 505.) “Parties can agree to

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limitations on discovery, but an arbitration agreement must
‘“‘ensure minimum standards of fairness’ so employees can
vindicate their public rights.’”’” (Murrey v. Superior Court (2023)
87 Cal.App.5th 1223, 1248 (Murrey).)
The Agreement contains the following discovery provision:
“Each party shall have the right to take the deposition of one
individual and any expert witness designated by another party.
Upon mutual consent or upon a showing of substantial need, each
party also shall have the right to propound requests for
production of documents to any party.” The trial court ruled that
this provision is substantively unconscionable because it
unreasonably limits respondent’s discovery rights.
Appellant argues that the provision does not limit discovery
rights. It “merely serves as the floor of permissible discovery.”
“Had [appellant] intended for the discovery provision to serve as
a ‘ceiling’ [for discovery], the [A]greement would have presented
limiting language such as, ‘each party shall have the right to take
the deposition of only one individual,’ or ‘each party shall have
the right to take a maximum of one deposition of an
individual.’” Appellant maintains that, since the discovery
provision establishes a floor rather than a ceiling for discovery,
the provision “must be read in conjunction with the AAA Rules,
which govern the [A]greement.”
The AAA employment dispute discovery rule provides:
“The arbitrator shall have the authority to order such discovery,
by way of deposition, interrogatory, document production, or
otherwise, as the arbitrator considers necessary to a full and fair
exploration of the issues in dispute, consistent with the expedited
nature of arbitration.” (AAA, Employment Arbitration Rules and
Mediation Procedure (revised Jan. 1, 2023), Rule 9 (hereafter

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Rule 9).) “[T]he AAA rules contain measures that ensure
adequate discovery.” (Fitz v. NCR Corp. (2004) 118 Cal.App.4th
702, 720 (Fitz).)
To determine the extent of permissible discovery, we must
interpret the Agreement’s discovery provision. “An arbitration
clause is governed by the same principles of interpretation as
other agreements. ‘“The fundamental rule is that interpretation
of . . . any contract . . . is governed by the mutual intent of the
parties at the time they form the contract. [Citation.] The
parties' intent is found, if possible, solely in the contract's written
provisions. . . .”’” (Gloster v. Sonic Automotive, Inc. (2014) 226
Cal.App.4th 438, 447.)
“[W]hen interpreting a contract, we strive to interpret the
parties’ agreement to give effect to all of a contract’s terms, and
to avoid interpretations that render any portion superfluous, void
or inexplicable.” (Brandwein v. Butler (2013) 218 Cal.App.4th
1485, 1507.) If, as appellant insists, AAA rules govern and the
Agreement’s discovery provision merely establishes a “floor” for
discovery, then the discovery provision is superfluous. Assuming
that, pursuant to AAA rules, the arbitrator has the power to
order whatever discovery the arbitrator “considers necessary to a
full and fair exploration of the issues in dispute” (Rule 9), there is
no need for the Agreement to state that “[e]ach party shall have
the right to take the deposition of one individual and any expert
witness designated by another party.” We cannot imagine that,
in an employment dispute, an arbitrator would completely bar a
party from taking any depositions or from deposing the other
party’s expert witness. “Normally, we assume the arbitrator will
act reasonably and in conformity with the law.” (Ramirez, supra,
16 Cal.5th at p. 506.) “Given the complexity of employment

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disputes, the outcomes of which are often determined by the
testimony of multiple percipient witnesses, as well as written
information about the disputed employment practice, it will be
the unusual instance where the deposition of two witnesses will
be sufficient to present a case.” (Fitz, supra, 118 Cal.App.4th at
p. 717.)
In addition, there is no need for the Agreement to state
that, “upon a showing of substantial need, each party also shall
have the right to propound requests for production of documents
to any party.” Applying the AAA discovery rules, no arbitrator
would deny a party the right to “propound requests for
production of documents” if the party made “a showing of
substantial need” for the documents.
Thus, appellant’s construction of the Agreement’s discovery
provision “violates fundamental principles of contract
interpretation by rendering [this provision] superfluous.” (Kern
County Hospital Authority v. Public Employment Relations Bd.
(2024) 100 Cal.App.5th 860, 887.) The discovery provision would
be unnecessary if AAA discovery rules apply and the provision
merely establishes a floor for discovery. “[Appellant] deliberately
replaced the AAA’s discovery provision with a more restrictive
one, and in so doing failed to ensure that employees are entitled
to discovery sufficient to adequately arbitrate their claims.
[Appellant] should not be relieved of the effect of an unlawful
provision it inserted in the [Agreement] due to the serendipity
that the AAA rules provide otherwise.” (Fitz, supra, 118
Cal.App.4th at p. 721.) Accordingly, the discovery provision is
substantively unconscionable.

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Trial Court Did Not Abuse Discretion in Refusing
to Sever Substantively Unconscionable Provisions
“If a contractual clause is found unconscionable, the court
may, in its discretion, choose to do one of the following: (1) refuse
to enforce the contract; (2) sever any unconscionable clause; or (3)
limit the application of any clause to avoid unconscionable
results. [Citation.] . . . The trial court's decision . . . is reviewed
for abuse of discretion.” (Ramirez, supra, 16 Cal.5th at p. 513.)
“At the outset, a court should ask whether ‘the central
purpose of the contract is tainted with illegality.’ [Citation.] If
so, the contract cannot be cured, and the court should refuse to
enforce it. If that is not the case, the court should go on to ask
first, whether the contract’s unconscionability can be cured
purely through severance or restriction of its terms, or whether
reformation by augmentation is necessary. [Citation.] If no
‘reformation is required,’ the offending provision can be severed
or limited, and ‘the rest of the arbitration agreement left intact,’
then severance or restriction is the preferred course for
provisions that are collateral to the agreement's main purpose.
[Citations.] If the unconscionability cannot be cured by
extirpating or limiting the offending provisions, but instead
requires augmentation to cure the unconscionability, then the
court should refuse to enforce the contract. [Citation.] Courts
cannot ‘rewrite agreements and impose terms to which neither
party has agreed.’” (Ramirez, supra, 16 Cal.5th at p. 516.)
Here, the four substantively unconscionable provisions can
be cured by severing them from the Agreement. The lack of
mutuality can be cured by deleting paragraph 2 entitled “Claims
Not Covered by this Agreement.” The statute of limitations
problem can be cured by (1) deleting “and Statute of

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Limitations” from the heading of paragraph 3 entitled,
“Required Notice of All Claims and Statute of Limitations,”
and (2) deleting the first sentence of paragraph 3 which
establishes the one-year statute of limitations. The limitation on
discovery can cured by deleting paragraph 4 entitled
“Discovery.” Finally, the arbitrator’s fees and costs problem can
be cured by deleting the first sentence of paragraph 7, which
provides, “The Company and I shall equally share the fees and
costs of the Arbitrator.”
“Even if a contract can be cured, the court should also ask
whether the unconscionability should be cured through severance
or restriction because the interests of justice would be furthered
by such actions. [Citation.] This part of the inquiry focuses on
whether mere severance of the unconscionable terms would
function to condone an illegal scheme and whether the defects in
the agreement indicate that the stronger party engaged in a
systematic effort to impose arbitration on the weaker party not
simply as an alternative to litigation, but to secure a forum that
works to the stronger party’s advantage. [Citation.] If the answer
to either question is yes, the court should refuse to enforce the
agreement.” (Ramirez, supra, 16 Cal.5th at pp. 516-517.)
“In conducting this analysis, the court may also consider
the deterrent effect of each option[, i.e., severance of the
substantively unconscionable provisions or refusal to enforce the
arbitration agreement]. . . . [S]evering multiple unconscionable
provisions from an agreement and enforcing the remainder could
‘create an incentive for an employer to draft a one-sided
arbitration agreement in the hope employees would not challenge
the unlawful provisions, but if they do, the court would simply
modify the agreement to include the bilateral terms the employer

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should have included in the first place.’ [Citation.] Although
there are no bright-line numerical rules regarding severance, it is
fair to say that the greater the number of unconscionable
provisions a contract contains the less likely it is that severance
will be the appropriate remedy.” (Ramirez, supra, 16 Cal.5th at
p. 517.) “‘[M]ultiple defects indicate a systematic effort to impose
arbitration on an employee not simply as an alternative to
litigation, but as an inferior forum that works to the employer's
advantage.’” (Id. at p. 515.)
A trial court “abuses its discretion when it misinterprets or
misapplies the law.” (In re M.W. (2018) 26 Cal.App.5th 921, 931.)
In its reply brief, appellant maintains that the trial court abused
its discretion because its ruling “strongly suggests that the
number of substantively unconscionable terms was the sole
reason it declined to exercise severance.” This, appellant asserts,
was “a mistake of law.” “[T]he presence of multiple
unconscionable clauses is merely one factor in the trial court’s
inquiry; it is not dispositive.” (Lange v. Monster Energy Company
(2020) 46 Cal.App.5th 436, 454.)
The trial court’s written ruling shows that it did not
conclude the Agreement was unenforceable merely because of the
number of substantively unconscionable provisions. It carefully
evaluated each provision as well as the procedurally
unconscionable factors. It stated, “The Arbitration Agreement is
procedurally unconscionable, and in conjunction with the
pervasive substantive unconscionability, is unenforceable.”
“[A] court [also] abuses its discretion where no reasonable
basis for the action is shown.” (Coalition for a Sustainable
Future in Yucaipa v. City of Yucaipa (2015) 238 Cal.App.4th 513,
519; see Denham v. Superior Court (1970) 2 Cal.3d 557, 566

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[“‘Discretion is abused whenever, in its exercise, the court exceeds
the bounds of reason, all of the circumstances before it being
considered . . .’”].) “Under the abuse of discretion standard, we
presume the trial court properly applied the law and acted within
its discretion unless the appellant affirmatively shows
otherwise.” (Canyon Crest Conservancy v. County of Los Angeles
(2020) 46 Cal.App.5th 398, 409.) This court has “previously
commented on the ‘daunting task’ confronting an appellant who
seeks reversal of a trial court’s discretionary ruling.”
(Dreamweaver Andalusians, LLC v. Prudential Ins. Co. of
America (2015) 234 Cal.App.4th 1168, 1171, citing Estate of
Gilkison (1998) 65 Cal.App.4th 1443, 1448-1449.)
Appellant has failed to show that the trial court exceeded
the bounds of reason in refusing to enforce the Agreement instead
of severing the unconscionable provisions. “[T]he trial court
[here] could have reasonably concluded that ‘[the four
substantively unconscionable] defects indicate a systematic effort
to impose arbitration on an employee not simply as an
alternative to litigation, but as an inferior forum that works to
the employer's advantage.’” (Alberto v. Cambrian Homecare
(2023) 91 Cal.App.5th 482, 496.) “When we consider the
[Agreement’s] procedural [unconscionability] and substantively
unconscionable provisions together, they indicate a concerted
effort to impose on an employee a forum with distinct advantages
for the employer.” (Murrey, supra, 87 Cal.App.5th at p. 1256.)
In addition, the trial court could have reasonably
concluded that “[t]o enforce the agreement would incentivize
employers to impose multiple unlawful arbitration provisions on
employees, who would likely forego bringing suit for fear they
would be forced to bear [half] the costs and burdens of the one-

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sided arbitration agreement. If an employee had the resources to
bring suit in court and challenge enforcement of the arbitration
agreement, the employer could still compel arbitration if the trial
court was willing to sever the offending provisions.” (Mills v.
Facility Solutions Group, Inc. (2022) 84 Cal.App.5th 1035, 1067–
1068.)
“The overarching inquiry is whether ‘“the interests of
justice . . . would be furthered”’ by severance.” (Armendariz,
supra, 24 Cal.4th at p. 124.) The trial court acted within its
discretion in impliedly determining that the interests of justice
would not be furthered by severing the substantively
unconscionable provisions. Despite the Agreement’s statement
that respondent “entered into this agreement voluntarily,” the
Agreement is not “a voluntary means of resolving disputes.” (Id.
at p. 115 [“Arbitration is favored in this state as a voluntary
means of resolving disputes, and this voluntariness has been its
bedrock justification”].)
Disposition
The order denying appellant’s motion to compel arbitration
is affirmed. Respondent shall recover her costs on appeal.
YEGAN, J.
We concur:
GILBERT, P. J.
BALTODANO, J.

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Tana L. Coates, Judge
Superior Court County of San Luis Obispo
______________________________
Epstein Becker & Green and Kevin D. Sullivan, Benjamin
T. Runge, for Defendant and Appellant.
Lawyers for Justice and Edwin Aiwazian, Elizabeth
Parker-Fawley, Arman Marukyan, for Plaintiff and Respondent.

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Filed 12/19/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
ANNALYCIA JENKINS,
Plaintiff and Respondent,
v.
DERMATOLOGY
MANAGEMENT, LLC,
Defendant and Appellant.
2d Civ. No. B333759
(Super. Ct. No. 22CV-0564)
(San Luis Obispo County)
ORDER CERTIFYING
OPINION FOR PUBLICATION
[NO CHANGE IN JUDGMENT]
THE COURT:
The opinion in the above-entitled matter filed on
November 20, 2024, was not certified for publication in the
Official Reports. For good cause, it now appears that the opinion
should be published in the Official Reports and it is so ordered.
GILBERT, P. J. YEGAN, J. BALTODANO, J.

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