Barraza v. Tesla CA1/1 ( 2023 )

Filed 4/11/23 Barraza v. Tesla CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
JESSICA BARRAZA,
Plaintiff and Respondent,
A165347
v.
TESLA, INC., (Alameda County
Super. Ct. No. 21CV002714)
Defendant and Appellant.
After appellant Tesla, Inc., offered respondent Jessica Barraza a job,
company representatives asked her when she would give notice to her then-
current employer, and they gave her a start date at Tesla. The company then
had her sign a series of documents, none of which included an arbitration
clause. Around a month after Barraza quit her job, and one day after the
original start date, Tesla for the first time presented Barraza with a formal
offer letter that included an arbitration agreement. Later, Barraza sued for
sexual harassment at the company, and Tesla moved to compel arbitration.
The trial court denied the motion. Because we agree with the trial court that
the arbitration provisions in Barraza’s offer letter were procedurally and
substantively unconscionable, and because we also agree that the trial court
acted properly in declining to sever these terms, we affirm.
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I.
FACTUAL AND PROCEDURAL
BACKGROUND
Barraza has a high-school diploma and is the mother of two children.
In late July 2018,1 she was working as a sales associate at a home décor store
where she earned around $10 or $12 per hour. On July 31, she applied for a
job at Tesla. Tesla invited Barraza to an “on-site assessment” test on
August 15. Before she attended, though, Tesla asked her to sign two
documents, an “Applicant Non-Disclosure Agreement” and a “Visitor Safety &
Non-Disclosure Agreement,” both of which she signed. Neither one contains
an arbitration provision and instead they contemplate that disputes covered
by the agreements would be litigated in state or federal court.
Barraza visited Tesla again on August 23 for an interview. According
to Barraza, she received a verbal offer for a position on Tesla’s assembly line
paying $19 per hour, which she accepted. That there was a job offer and
acceptance was evidenced by a notation in Tesla’s human-resources system
stating “Selected at Sup Interview on 08/23. Accepted/verbal Offer.” The
interviewer told Barraza that Tesla would contact her about orientation
dates.
Over the following nearly two months, Tesla sent Barraza a series of
communications and documents related to starting work. On September 19,
a Tesla recruiting employee emailed Barraza stating that she (Barraza) had
“completed all pre-employment steps” for her new role, and that Tesla was
“excited to move [Barraza] on to the next round of the process.” The email
provided three options as to when Barraza could start work: as soon as
possible (October 1), if she did not need to provide notice to her current
All further date references are to the 2018 calendar year unless
1
otherwise specified.
2
employer; October 8, if she needed to give two weeks’ notice to her employer;
or another later date if she needed to provide more notice to her employer.
(The email also stated that Barraza’s start date was “tentative based on
business needs.”) Barraza replied that she would give her current employer
two weeks’ notice the following day and could begin at Tesla on October 8.
Barraza promptly gave notice to her employer, and once she did she could not
afford to turn down the job at Tesla because she needed to earn money to pay
her bills and support her two children. Tesla informed Barraza on
September 25 that her start date would be October 15, but the date was later
pushed back to October 22.
On October 1, Barraza received an email with the subject line
“Welcome to Tesla, Jessica!” The email stated, “Congratulations, Jessica! [¶]
We are very excited to have you as a member of our Tesla team where you
will help accelerate the shift towards sustainable transportation and energy
consumption.” It included information about an orientation date and Tesla’s
benefits package. The email also included instructions on how to log into
Tesla’s human-resources management system to complete required
“[o]nboarding tasks.” Barraza electronically signed six onboarding documents
on October 9. One of them was titled the “Tesla, Inc. Employee Non-
Disclosure and Inventions Assignment Agreement” and is referred to by the
parties as the “PIIA” (for Proprietary Information and Inventions
Agreement). The PIIA is a four-page form document that requires Barraza to
hold all of Tesla’s proprietary information in the strictest confidence (with the
exception of any disclosed prior inventions, which Barraza did not indicate
she had). A section of the document titled “LEGAL AND EQUITABLE
REMEDIES” states, “I acknowledge and agree that violation of this
Agreement by me may cause the Company irreparable harm and that the
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Company shall therefore have the right to enforce this Agreement and any of
its provisions by injunction, specific performance, or other equitable relief,
without bond and without prejudice to any other rights and remedies that the
Company may have for a breach of this Agreement.” The document further
provided that Barraza agreed to submit to jurisdiction to enforce the
agreement “in the state and federal courts located in the county and state in
which you are primarily assigned to work in by [Tesla].” Barraza’s
understanding was that she had to sign the PIIA and other onboarding
documents in order to work at Tesla, and no one ever suggested to her (nor
has Tesla suggested in this litigation) that she had the option of negotiating
any of the documents’ terms.
On October 16, Tesla emailed Barraza a link to an employment-offer
letter that included the arbitration agreement that is the subject of this
appeal. The subject line of the email states, “Please sign your Offer!” The
email provides, “Congratulations Jessica, [¶] It is our pleasure to formally
offer you the position of Production Associate, General Assembly Model 3 at
Tesla. Please take a moment to review the attached offer letter which
includes your proposed title, manager, compensation information, and start
date. We look forward to your confirmation and acceptance of this offer.”
The letter attached to Barraza’s offer letter is just over three pages long. It
sets forth her pay rate ($19 per hour); her entitlement to health and dental
benefits, as well as to paid time off; and the process to vest in Tesla stock.
We sometimes refer to this document as the formal offer letter.
The formal offer letter first mentions arbitration around a page and a
half into the letter and states that “to ensure the rapid and economical
resolution of disputes that may arise in connection with your employment
with Tesla, you and Tesla agree that any and all disputes, claims, or causes
4
of action, in law or equity, arising from or relating to your employment, or the
termination of your employment, will be resolved, to the fullest extent
permitted by law by final, binding and confidential arbitration in your city
and state of employment conducted by the Judicial Arbitration and Mediation
Services/Endispute, Inc. (‘JAMS’), or its successors, under the then current
rules of JAMS for employment disputes.” The offer letter further provides
that (1) any action must be brought in a party’s individual capacity, and not
as a member of any class proceeding, (2) the arbitrator would “have the
authority to compel adequate discovery for the resolution of the dispute and
to award such relief as would otherwise be permitted by law,” (3) the
arbitrator would not have the authority to consolidate any claims or to award
relief to a group or class of employees, (4) the arbitrator shall issue a written
decision that includes the arbitrator’s essential findings and conclusions as
well as a statement of the award, (5) both the employee and Tesla “shall be
entitled to all rights and remedies that you or Tesla would be entitled to
pursue in a court of law,” and (6) Tesla shall pay “all fees in excess of those
which would be required if the dispute was decided in a court of law.”
Not all claims are subject to arbitration under the agreement. The
agreement provides that nothing “is intended to prevent either you or Tesla
from obtaining injunctive relief in court to prevent irreparable harm pending
the conclusion of any such arbitration. Notwithstanding the foregoing, you
and Tesla each have the right to resolve any issue or dispute arising under
the Proprietary Information and Inventions Agreement [a reference to the
PIIA] by Court action instead of arbitration.”
The arbitration agreement does not include or restrict “administrative
claims [Barraza] may bring before any government agency where, as a
matter of law, the parties may not restrict your ability to file such claims
5
(including discrimination and/or retaliation claims filed with the Equal
Employment Opportunity Commission and unfair labor practice charges filed
with the National Labor Relations Board).” Otherwise, though, “it is agreed
that arbitration shall be the exclusive remedy for administrative claims.”
Finally, the offer letter contains a severability clause, which provides
that “[i]f one or more of the provisions in this arbitration agreement, or any
portion thereof, are deemed invalid, unenforceable, or void under the Federal
Arbitration Act or other applicable law, then the remaining provisions, or
portions thereof, shall not thereby be affected and will continue in full force
and effect, and shall be given full effect without regard to the invalid,
unenforceable, or void provision, or portion thereof.”
The formal offer letter sets Barraza’s start date as October 22. It
concludes by stating that if Barraza accepts the offer, she should so indicate
by signing the letter and returning it to Tesla before October 18, at which
point it would expire. According to Tesla’s electronic records, Barraza clicked
on a link to the offer letter, which she signed on October 17 using an “e-
signature” created using Tesla’s applicant-tracking software system. At the
time Barraza signed the offer letter, she did not know what arbitration was
or even how to pronounce the word.
Barraza started working as a production associate at Tesla on
October 22. According to Barraza’s complaint, over the following three years
she was subject to near daily sexual harassment on Tesla’s factory floor that
was known to, and sometimes perpetrated by, supervisors and managers, and
complaints to human resources were ineffective.
Barraza sued Tesla in November 2021. As amended, her complaint
alleged that Tesla violated the California Fair Employment and Housing Act
(FEHA, Gov. Code, § 12900 et seq.) because of (1) sexual harassment (id.,
6
§ 12940, subd. (j)), (2) failure to prevent sexual harassment (id., § 12940,
subd. (k)), and retaliation (id., § 12940, subd. (h)). She also brought the
action as a representative action under the Labor Code Private Attorney
General Act of 2004 (PAGA, Lab. Code, § 2698 et seq.). She sought civil
penalties on behalf of herself and other female Tesla employees at its
Fremont factory for the company’s creation of an unsafe work environment.
And she sought a declaration that the arbitration agreement was
procedurally and substantively unconscionable and thus unenforceable (Code
Civ. Proc., § 1060).
Tesla filed a motion to compel arbitration of all of Barraza’s non-PAGA
claims. Barraza opposed the motion and argued that the arbitration
agreement was procedurally and substantively unconscionable and thus
unenforceable.
A hearing on the motion was held on the same day that the
U.S. Supreme Court held oral argument in Viking River Cruises, Inc. v.
Moriana (2022) __ U.S. __ [142 S.Ct. 1906] (Viking River), regarding the
arbitrability of PAGA claims.
The trial court denied the motion to compel. It concluded that the
timetable of Barraza’s application for employment established a high level of
procedural unconscionability. This was based on the fact she had quit her
previous job after being reasonably led to believe that she had been hired by
Tesla, and signed several documents to that effect, before she was presented
with the formal offer letter to sign. The court also concluded that the
agreement contained substantive unconscionability for reasons discussed in
more detail below. The court declined to sever unconscionable provisions so
that arbitration could proceed.
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II.
DISCUSSION
A. General Principles and the Standard of Review.
The Federal Arbitration Act (FAA, 9 U.S.C. § 1 et seq.) provides that a
written agreement to arbitrate “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.) The FAA expresses favor for arbitration
agreements. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development
(US), LLC (2012) 55 Cal.4th 223, 235 (Pinnacle).) “In determining the rights
of parties to enforce an arbitration agreement within the FAA’s scope, courts
apply state contract law while giving due regard to the federal policy favoring
arbitration.” (Id. at p. 236.)
The FAA was recently amended, and if Barraza had sued Tesla after
the amendment, her claims for sexual harassment would not be subject to
arbitration. In March 2022, the President signed the Ending Forced
Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (9 U.S.C.
§§ 401, 402), which voids predispute arbitration clauses in cases involving
allegations of sexual harassment. (See Murrey v. Superior Court
87 Cal.App.5th 1223 (Murrey).) The amendment, however, does not apply in
this case because it is applicable only to lawsuits filed after its enactment.
(Id. at p. 1235.) Thus, the pre-amendment law governing the FAA applies.
“The party seeking arbitration bears the burden of proving the
existence of an arbitration agreement, and the party opposing arbitration
bears the burden of proving any defense, such as unconscionability.”
(Pinnacle, supra, 55 Cal.4th at p. 236.) Barraza does not dispute the
existence of an agreement between her and Tesla, but she contends that the
arbitration provision is unconscionable. “The general principles of
unconscionability are well established. A contract is unconscionable if one of
8
the parties lacked a meaningful choice in deciding whether to agree and the
contract contains terms that are unreasonably favorable to the other party.
[Citation.] Under this standard, the unconscionability doctrine ‘ “has both a
procedural and a substantive element.” ’ [Citation.] ‘The procedural element
addresses the circumstances of contract negotiation and formation, focusing
on oppression or surprise due to unequal bargaining power. [Citations.]
Substantive unconscionability pertains to the fairness of an agreement’s
actual terms and to assessments of whether they are overly harsh or one-
sided.’ ” (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 125.) Both procedural and
substantive unconscionability must be shown to establish the defense. (Ibid.)
The doctrine of unconscionability ensures that contracts, particularly
those of adhesion, do not impose terms that are overly harsh, unduly
oppressive, or are so one-sided as to shock the conscience. (Sanchez v.
Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 910 (Sanchez).) It does not,
however, encompass a simple bad bargain. (Id. at p. 911.) “An evaluation of
unconscionability is highly dependent on context.” (Ibid.) “The doctrine often
requires inquiry into the ‘commercial setting, purpose, and effect’ of the
contract or contract provision.” (Ibid.) “[T]he substantive unfairness of the
terms must be considered in light of any procedural unconscionability. The
ultimate issue in every case is whether the terms of the contract are
sufficiently unfair, in view of all relevant circumstances, that a court should
withhold enforcement.” (Id. at p. 912.)
“Where, as here, the evidence is not in conflict, we review the trial
court’s denial of arbitration de novo.” (Pinnacle, supra, 55 Cal.4th at p. 236.)
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B. The Arbitration Provision Is Procedurally Unconscionable.
Tesla first argues that the formal offer letter was not procedurally
unconscionable, but we are not persuaded.
“A procedural unconscionability analysis ‘begins with an inquiry into
whether the contract is one of adhesion.’ [Citation.] 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, L.L.C. v.
Kho, supra, 8 Cal.5th at p. 126.) There appears to be no real dispute here
that Tesla had far superior bargaining power and that Barraza’s formal offer
letter containing the arbitration provisions was a contract of adhesion. The
question, therefore, is “whether circumstances of the contract’s formation
created such oppression or surprise that closer scrutiny of its overall fairness
is required.” (Ibid.) “ ‘ “ ‘Oppression occurs where a contract involves lack of
negotiation and meaningful choice, surprise where the allegedly
unconscionable provision is hidden within a prolix printed form.’ ” ’ ” (Ibid.)
Where a party has no ability to individually negotiate a contract’s
terms, could not opt out of an arbitration provision, and thus had no
meaningful choice but to accept an arbitration provision as drafted by the
other party, this establishes at least a minimal level of procedural
unconscionability. (Bakersfield College v. California Community College
Athletic Assn. (2019) 41 Cal.App.5th 753, 762–763.) We agree with the trial
court that these factors plus the additional facts Barraza established
demonstrated a “considerable” level of procedural unconscionability. Barraza
quit her previous job after Tesla led her to believe she had secured a job, and
after she signed several documents that gave no indication she was agreeing
to arbitration, and if anything, suggested that disputes would be resolved in
court. As the trial court put it, “Tesla either orchestrated this sequence of
10
events on purpose or was unacceptably indifferent to the situation in which
this placed Barraza. Basically, Barraza was ambushed.” This conclusion
goes to the “oppression” aspect of procedural unconscionability. (OTO,
L.L.C. v. Kho, supra, 8 Cal.5th at pp. 126–127 [one circumstance relevant to
establishing oppression is “the amount and type of pressure exerted on the
party to sign the proposed contract”].)
Tesla acknowledges on appeal that when “arbitration is a condition of
employment, there is inherently economic pressure on the employee to accept
arbitration,” which “alone is a fairly low level of procedural
unconscionability.” (Alvarez v. Altamed Health Services Corp. (2021)
60 Cal.App.5th 572, 591.) The company argues, though, that there is nothing
inherently unfair about arbitration agreements or including one in an
employment contract. (E.g., Serafin v. Balco Properties Ltd., LLC (2015)
235 Cal.App.4th 165, 179; Lagatree v. Luce, Forward, Hamilton & Scripps
(1999) 74 Cal.App.4th 1105, 1124.) In doing so, it focuses narrowly on the
circumstances surrounding the formal offer letter but not the events leading
up to it.
Tesla notes that the email to Barraza attaching the formal offer letter
did not provide any deadline for signing and in fact offered to answer any
questions, and Tesla insists that it “did not exert any pressure on Barraza to
sign the contract.” But at that point, Barraza already had quit her previous
job after Tesla specifically asked how much notice she would have to provide
to that previous employer. Tesla claims that there was no “sense of urgency”
in its October 16 email, which may have been true as far as the company was
concerned. But from Barraza’s point of view, the email arrived a day after
she was originally told she would start at Tesla, and nearly a month after she
told Tesla she would provide two weeks’ notice to her previous employer.
11
Regardless of the substance or tone of the email forwarding the formal offer,
the reality was that Barraza had essentially no choice but to sign the letter in
order to secure a job and continue to support her family.
Tesla contends it is “not to blame . . . for Barraza’s decision to quit her
home décor store job without knowing what the terms of employment for the
next job would be.” But the contention is at least partially disingenuous,
since Tesla had previously specifically asked how much notice Barraza had to
provide. The company stresses that at the time Barraza quit there were
several other terms of employment (besides the arbitration agreement)
unknown to her. But a closer look at these terms reveals they either were
actually known to Barraza or were of far less importance than the dispute-
resolution procedures.2 Tesla contends Barraza did not know what her “title”
would be when she quit her former job. Barraza attested that she attended
an onsite interview for “a position on the assembly line,” where she
ultimately worked. She worked as a “Production Associate,” a fairly generic
title that would not likely affect a decision to take a different job. Tesla also
says Barraza did not know at the time she quit her what her hourly wage at
Tesla would be, but that is not quite true. She attested she “believe[d she]
was told that the pay was $19 per hour,” which is what her rate turned out to
be. Tesla further notes that Barraza did not know what her start date would
be, but again this is at least somewhat disingenuous given that Tesla
provided different start dates that depended on how soon Barraza could give
2 At oral argument, Tesla reiterated its argument that arbitration
terms cannot be disfavored over other contract terms. For purposes of this
appeal, we assume, without deciding, that the standards for reviewing
agreements to arbitrate employment sexual-harassment claims in cases filed
before the Ending Forced Arbitration of Sexual Assault and Sexual
Harassment Act of 2021 were unaffected by the Act and the policies it
reflects.
12
notice. And while it is true, as Tesla contends, that Barraza did not know
when she quit her previous job “whether she would receive a recommended
equity grant,” this is hardly a standard benefit that would necessarily weigh
on a potential non-exempt employee’s decision to quit a job for one that pays
more. We thus reject Tesla’s argument that the trial court “single[d] out
arbitration for disfavored treatment,” since this was a major term that was
effectively hidden from Barraza until after she was initially told she would
start work at Tesla. As Barraza puts it, unlike the other terms Tesla lists on
appeal, “[i]t was the unappealing, unfavorable non-mutual arbitration
provision that Tesla withheld until it was too late.”
We agree with Tesla insofar as it claims that that the “surprise”
element of procedural unconscionability was missing here, since the
arbitration provisions were not hidden in the formal offer letter or otherwise
difficult to read. (Cf. OTO, L.L.C. v. Kho, supra, 8 Cal.5th at pp. 126, 128.)
But where, as here, “ ‘an adhesive contract is oppressive, surprise need not be
shown.’ ” (Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267,
1281.)
C. The Arbitration Provisions Are Substantively Unconscionable.
We next conclude, as did the trial court, that the arbitration provisions
of the formal offer letter were substantively unconscionable.
“Substantive unconscionability pertains to the fairness of an
agreement’s actual terms and to assessments of whether they are overly
harsh or one-sided. [Citations.] A contract term is not substantively
unconscionable when it merely gives one side a greater benefit; rather, the
term must be ‘so one-sided as to “shock the conscience.” ’ ” (Pinnacle, supra,
55 Cal.4th at p. 246.)
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The trial court acknowledged that the formal offer letter’s arbitration
agreement appeared in some ways to have been drafted to meet the
requirements in the employment context, as set forth in Armendariz v.
Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83(Armendariz): It was “nominally mutual,” it provided for adequate discovery,
specified the applicable rules, set an appropriate venue, called for a written
decision, did not limit remedies, and stated that Tesla would pay any costs of
litigation that exceeded what Barraza would otherwise incur in court. The
trial court nonetheless found three elements of substantive unconscionability:
(1) lack of mutuality, (2) complete confidentiality, and (3) a ban on
representative actions. We separately address these factors.
1. The Formal Offer Letter Lacked Mutuality.
As we have said, the formal offer letter stated that notwithstanding the
arbitration provisions, Barraza and Tesla each had the right to resolve any
dispute under the PIIA “by Court action instead of arbitration.” The trial
court agreed with Barraza that “Tesla ha[d] reserved its right to go to court
for the claims it is likely to have and has relegated Barraza to arbitration for
her likely claims.” The court concluded that Tesla had failed to justify the
wholesale exclusion of PIIA claims from arbitration and that the agreement
was therefore substantively unconscionable in part for lack of mutuality.
(See Farrar v. Direct Commerce, Inc. (2017) 9 Cal.App.5th 1257, 1273
[substantive unconscionability present where contract had carve-out for
confidentiality agreement that was not limited to provisional judicial
remedies].)
On appeal, Tesla first argues that the formal offer letter was not non-
mutual since a hypothetical employee who signed the PIIA could sue Tesla
for patent infringement or misappropriation of trade secrets if that employee
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listed any prior inventions to exclude from the scope of the agreement. But
the likelihood that a prospective factory worker would list such an invention
appears low, and in any event Barraza listed none.
Tesla next directs the court to the portion of Armendariz that held that
not “all lack of mutuality in a contract of adhesion was invalid” and that “ ‘a
contract can provide a “margin of safety” that provides the party with
superior bargaining strength a type of extra protection for which it has a
legitimate commercial need without being unconscionable.’ ” (Armendariz,
supra, 24 Cal.4th at p. 117.) But this principle does not assist Tesla.
Armendariz relied on Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519,
which analyzed an employment agreement that contemplated court action for
various confidentiality and trade-secrets issues but binding arbitration for
employment issues. (Id. at pp. 1528–1529.) The court acknowledged that a
contract may provide a margin of safety for legitimate needs but stressed that
“unless the ‘business realities’ that create the special need for such an
advantage are explained in the contract itself, . . . it must be factually
established.” (Id. at p. 1536.) Because no such reasons were set forth in the
contract and had not been established by the party seeking arbitration,
Division Two of this court concluded that those factors weighed in favor of
substantive unconscionability. (Id. at pp. 1536–1537, 1542.) Armendariz
likewise concluded that “it is unfairly one-sided for an employer with superior
bargaining power to impose arbitration on the employee as plaintiff but not
to accept such limitations when it seeks to prosecute a claim against the
employee, without at least some reasonable justification for such one-
sidedness based on ‘business realities.’ ” (Armendariz, supra, at p. 117.) And
it found the agreement at issue in that case to contain “unconscionable one-
sidedness.” (Id. at p. 121; see also Murrey, supra, 87 Cal.App.5th at
15
pp. 1251–1252 [where intellectual property claims excluded from arbitration,
lack of mutuality “add[ed] to th[e] agreement’s substantive
unconscionability”].)
The trial court here concluded that Tesla presented “no factual showing
of business reasons justifying the wholesale exemption of PIIA claims and
other NDA claims from the arbitration agreement.” Tesla claims the PIIA
itself provides such justification because it states that Barraza acknowledges
that any violation of the agreement “may cause [Tesla] irreparable harm.” It
argues that the PIIA is thus comparable to the agreement in Baltazar v.
Forever 21, Inc. (2016) 62 Cal.4th 1237, but we are not persuaded. In
Baltazar, the parties agreed that if a claim went to arbitration, the parties
were authorized to seek preliminary injunctive relief. (Id. at p. 1241.) Our
Supreme Court concluded that this clause simply restated existing law that a
party to an arbitration agreement may seek provisional remedies (Code Civ.
Proc., § 1281.8, subd. (b)), and thus the agreement was not unconscionable.
(Baltazar, at p. 1241.) This conclusion did not rest on the fact that the
parties’ agreement specified that the company had valuable trade secrets and
confidential information, as Tesla claims. (Id. at pp. 1241, 1250.) Tesla does
not address the point that here the PIIA is not limited to provisional
remedies already contemplated by statute.
Nor did Tesla provide a legitimate commercial need for the PIIA’s
statement that because a violation of the agreement may cause Tesla
irreparable harm, the company “shall therefore have the right to enforce this
Agreement and any of its provisions by injunction, specific performance, or
other equitable relief, without bond and without prejudice to any other rights
and remedies that the Company may have.” (Italics added.) Because such a
provision authorizes the stronger party to obtain injunctive relief without
16
having to establish all the essential elements for the issuance of an
injunction, it is substantively unconscionable. (Lange v. Monster Energy Co.
(2020) 46 Cal.App.5th 436, 451 [unconscionable to waive requirements that
bond be posted]; Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 250
[same].)
We agree with the trial court that the formal offer letter was
substantively unconscionable for lack of mutuality.
2. The Formal Offer Letter’s Confidentiality Provision Is
Substantively Unconscionable.
Barraza argued below that the requirement that employment disputes
be resolved by “binding and confidential arbitration” (italics added) was
substantively unconscionable because it “create[d] a barrier” for her to gather
evidence since it prohibited her from telling other people she was pursuing
claims of sexual harassment. When questioned by the trial court repeatedly
at the hearing on Tesla’s motion what the term “confidential arbitration”
meant, Tesla’s counsel responded that arbitration hearings were generally
confidential, that the term would be interpreted by the arbitrator pursuant to
JAMS rules, and that Tesla had not taken any steps to prevent Barraza from
engaging in informal discovery. Barraza’s attorney responded that the term
was ambiguous, which added to its unconscionability, and that JAMS rules
provide only that the arbitrator is required to keep arbitration confidential
17
but do not provide further guidance on whether the parties were required to
do so.3
The trial court concluded that “[t]he simple provision for a ‘confidential
arbitration’ without any qualification” was as broad as clauses struck down
by other courts, including this court in Ramos v. Superior Court (2018)
28 Cal.App.5th 1042, 1067 (Ramos). It thus found the confidentiality
provision to be substantively unconscionable.
On appeal, Tesla contends that “[t]he most reasonable interpretation of
the term ‘confidential arbitration’ is that only the arbitration proceedings
themselves are ‘confidential,’ such that the public may not attend.” It argues
that the trial court improperly interpreted the term “confidential arbitration”
in a “maximally restrictive manner.” (E.g., Pearson Dental Supplies, Inc. v.
Superior Court (2010) 48 Cal.4th 665, 682 [clause stating that parties agreed
to arbitration to avoid formal administrative proceedings interpreted by court
in a way to render it lawful].) Were this in fact the “most reasonable” way to
interpret the term, presumably Tesla would not have waited until its appeal
to raise it for the first time. As the trial court observed, “if Tesla meant to
limit confidentiality, it could have so provided.”
The confidentiality provision is comparable to the one in Ramos, supra,
28 Cal.App.5th at p. 1065. There, the arbitration provision provided that “all
aspects of the arbitration shall be maintained by the parties and the
3 Rule 26 of the JAMS Employment Arbitration Rules & Procedures,
effective June 1, 2021, provides that the arbitrator shall maintain the
confidentiality of the arbitration proceeding and award except in certain
circumstances, the arbitrator may issue orders to protect proprietary or
confidential information, and the arbitrator may exclude non-parties from a
hearing. The trial court granted Tesla’s request that it take judicial notice of
the JAMS rules. On its own motion, this court also takes judicial notice of
the rules. (Evid. Code, § 459.)
18
arbitrators in strict confidence.” (Ibid.) Because the clause required the
plaintiff employee to keep all aspects of arbitration secret, this court held, she
would violate it if she tried to contact any witness outside of formal discovery.
(Id. at p. 1066.) Such a limitation would increase the costs of discovery by
requiring the plaintiff to conduct depositions instead of informal interviews,
which would “defeat[] the purpose of using arbitration as a simpler, more
time-effective forum for resolving disputes,” and it unreasonably favored the
defendant employer to the detriment of employees. (Ibid.) For all of these
reasons, the court found the clause to be substantively unconscionable. (Id.
at pp. 1066–1067.) Tesla claims that the confidentiality provision here is
distinguishable from the one in Ramos because here, the agreement “does not
specify that everything about the arbitration shall remain confidential.”
Again, though, we agree with the trial court that the fact the confidentiality
provision here does not include any qualification means it “is effectively just
as just as broad as the clause[] struck down in Ramos.”
Tesla relies on other cases that are inapposite. For example, it cites
this court’s opinion in Epstein v. Vision Service Plan (2020) 56 Cal.App.5th
223. Detailed confidentiality provisions in Epstein governed “a confidential,
medical peer review process,” which was an “entirely different” context from
the employment dispute in Ramos. (Epstein at p. 245.) Tesla also contends
that its confidentiality agreement “is much closer to the confidentiality
provision” that was found acceptable in Sanchez v. Carmax Auto Superstores
California, LLC (2014) 224 Cal.App.4th 398, 408. The Sanchez court did not
directly quote the confidentiality provision at issue but stated that it
“require[d] that the arbitration (including the hearing and record of the
proceeding) be confidential and not open to the public unless the parties
agree otherwise, or as appropriate in any subsequent proceeding between the
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parties, or as otherwise may be appropriate in response to governmental or
legal process.” (Ibid.) In a single line of analysis, the court concluded that
the provision was not substantively unconscionable because it was
comparable to a case where the court concluded that the fact that a transcript
of an arbitration proceeding was to remain confidential was not substantively
unconscionable. (Ibid., quoting Woodside Homes of Cal., Inc. v. Superior
Court (2003) 107 Cal.App.4th 723, 732, see also Woodside at pp. 725, 731.)
Again, had Tesla wanted to limit its confidentiality provision to apply only to
the arbitration hearing itself, it could have done so. As drafted, the
confidentiality provision is unconscionable. Moreover, we agree with Murrey,
supra, 87 Cal.App.5th 1223 , that Carmax and Woodside are not “persuasive
in the context of a workplace sexual harassment complaint.” (Murrey at
p. 1254.)
In Murrey, the plaintiff employee signed an agreement stating “she
would not ‘publish or disseminate’ the arbitration award.” (Murrey, supra,
87 Cal.App.5th at pp. 1253–1254.) The court noted that Congress and the
President believed that barring arbitration of sexual-harassment claims was
“necessary due to growing evidence the secretive nature of arbitration was
fostering ‘the growth of office cultures that ignore harassment and retaliate
against those who report it, prevent future victims from being warned about
dangerous companies and individuals, and create incentives for the corporate
protection of rapists and other serial harassers.’ ” (Id. at pp. 1254–1255,
citing H.R.Rep. No. 117-234, 2d Sess., p. 4 (2022).) Although recent FAA
amendments did not apply in Murrey, the court found that the confidentiality
provision was substantively unconscionable because it “serve[d] no purpose
other than to benefit [the employer]. Future employees cannot take
advantage of findings in past arbitrations or prove a pattern of
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discrimination and/or retaliation. . . . In addition, ‘keeping past findings
secret undermines an employee’s confidence in the fairness and honesty of
the arbitration process and thus potentially discourages that employee from
pursuing a valid discrimination claim.’ ” (Id. at p. 1255.) The same
principles are at play here. We likewise conclude that the confidentiality
clause in the formal offer letter benefits only Tesla and is substantively
unconscionable.
3. Our Conclusion That the Arbitration Provisions Are
Substantively Unconscionable Does Not Turn on Whether the
Ban on Representative Actions May Be Considered
Unconscionable.
The trial court last focused on the fact that the formal offer letter bars
representative actions, which Barraza argued was unconscionable since an
employee’s right to bring a PAGA claim is unwaivable under Iskanian v. CLS
Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 383 (Iskanian). The
court stated, “At the time the contract was presented, it nominally had
Barraza waive a right that the California Supreme Court had held to not be
waivable.”
Shortly after Tesla appealed, the U.S. Supreme Court issued Viking
River, supra, ___ U.S.___ [142 S.Ct. 1906]. The court distinguished between
PAGA actions where an employee is acting as a representative of the state
versus PAGA actions where they are based on code violations experienced by
other employees. (Id. at p. 1916.) Division Five of this court recently
summarized Viking River’s analysis and holding: “[T]he United States
Supreme Court characterized Iskanian as adopting two rules: The ‘principal
rule prohibits waivers of “representative” PAGA claims . . . . That is, it
prevents parties from waiving representative standing to bring PAGA claims
in a judicial or arbitral forum. But Iskanian also adopted a secondary rule
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that invalidates agreements to separately arbitrate or litigate “individual
PAGA claims for Labor Code violations that an employee suffered,” on the
theory that resolving victim-specific claims in separate arbitrations does not
serve the deterrent purpose of PAGA.” (Vaughn v. Tesla, Inc. (2023)
87 Cal.App.5th 208, 234, petn. rev. filed Feb. 14, 2023, S278613, quoting
Viking River, supra, at pp. 1916–1917.) “Viking River held the FAA did not
preempt Iskanian to the extent the decision prohibited waiver of an
employee’s right to pursue a ‘representative’ PAGA claim on behalf of the
state. [Citation.] That is because ‘the FAA does not require courts to enforce
contractual waivers of substantive rights and remedies.’ ” (Vaughn at
p. 234.) “On the other hand, Viking River held Iskanian was preempted to
the extent it ‘invalidates agreements to arbitrate only “individual PAGA
claims for Labor Code violations that an employee suffered.” ’ ” (Ibid.)
Viking River held that the arbitration agreement at issue there remained
invalid to the extent it was “construed as a wholesale waiver of PAGA
claims.” (Viking River at pp. 1924–1925.) But the Supreme Court further
concluded that the plaintiff’s representative claim had to be dismissed
because she no longer had standing to pursue it, and she was required to
arbitrate her individual claims. (Id. at p. 1925.)
In a single paragraph in its opening brief, Tesla argues that the formal
offer letter’s inconsistency with Iskanian “ha[s] minimal significance . . . .
because an employer may compel an employee to arbitrate her individual
PAGA claim and, once ‘an employee’s own dispute is pared away from a
PAGA action, the employee is no different from a member of the general
public, and PAGA does not allow such persons to maintain suit,’ ” quoting
Viking River, supra, 142 S.Ct. at p. 1925. The company does not specifically
argue, though, that Barraza somehow lacks standing to represent other Tesla
22
employees. In its reply brief, Tesla acknowledges that the company did not
seek to compel arbitration of any part of Barraza’s PAGA claims when it filed
its motion to compel before the Viking River decision.
Barraza argues that Viking River does not affect the illegality of the
ban on representative actions in this case, since the Supreme Court
specifically held that the FAA did not preempt the aspect of Iskanian that
found wholesale waivers of PAGA claims to be invalid. (Viking River, supra,
142 S.Ct. at pp. 1924–1925.) The law regarding the arbitration of PAGA
claims is currently is flux. Our Supreme Court is currently considering the
question of whether an employee who has been compelled to arbitrate PAGA
claims that are premised on Labor Code violations actually sustained by that
employee maintains statutory standing to pursue PAGA claims arising out of
events involving other employees in court or in any other forum the parties
agree is suitable. (Adolph v. Uber Technologies, Inc. (Apr. 11, 2022, G059860
[nonpub. opn.], rev. granted July 20, 2022, S274671).)
To the extent that a complete ban on representative PAGA actions may
still be considered unconscionable, the formal offer letter’s ban adds to the
agreement’s substantive unconscionability. But our conclusion that the
formal offer letter is substantively unconscionable does not hinge on whether
Iskanian still applies. Although both procedural and substantive
unconscionability must be present to find an arbitration agreement
unenforceable, “they need not be present in the same degree.” (Armendariz,
supra, 24 Cal.4th at p. 114.) Courts instead use a sliding scale, such that
“the 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.) Here, there was a high level of
procedural unconscionability, meaning we need less evidence of substantive
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unconscionability to conclude that the arbitration terms were unenforceable.
As the trial court put it, “If the ‘sliding scale’ language in Armendariz and
other cases is to actually be followed, only a low degree of substantive
unconscionability should be required here.” We agree and conclude that the
agreement’s lack of mutuality and its confidentiality clause are sufficient
indications of substantive unconscionability to find that the arbitration
provisions are unenforceable.
D. The Trial Court Did Not Abuse Its Discretion When It Declined to
Sever Unconscionable Provisions.
Finally, Tesla challenges the trial court’s decision not to sever the
unconscionable arbitration provisions from the remainder of the formal offer
letter and thus allow the case to proceed to arbitration following severance.
Tesla contends that the parties are bound by the severance clause of the
formal offer letter, which provides, “If one or more of the provisions of this
arbitration agreement, or any portion thereof, are deemed invalid,
unenforceable, or void under the Federal Arbitration Act or other applicable
law, then the remaining provisions, or portions thereof, shall not thereby be
affected and will continue in full force and effect, and shall be given full effect
without regard to the invalid, unenforceable or void provision, or portion
thereof.” Tesla’s contention that this provision deprived the trial court of its
discretion to decline to sever unconscionable provisions is mistaken.
Civil Code section 1670.5, subdivision (a), provides that “[i]f the court
as a matter of law finds [a] contract or any clause of the contract to have been
unconscionable at the time it was made[,] the court may refuse to enforce the
contract, or it may enforce the remainder of the contract without the
unconscionable clause, or it may so limit the application of any
unconscionable clause as to avoid any unconscionable result.” (Italics added.)
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“ ‘ “In deciding whether to sever terms rather than to preclude enforcement of
the provision altogether, the overarching inquiry is whether the interests of
justice would be furthered by severance; the strong preference is to sever
unless the agreement is ‘permeated’ by unconscionability.” . . . . An
agreement to arbitrate is considered “permeated” by unconscionability where
it contains more than one unconscionable provision. [Citation.]’ ” (De Leon v.
Pinnacle Property Management Services, LLC (2021) 72 Cal.App.5th 476,
492.)
In Armendariz, the court stated that Civil Code section 1670.5,
subdivision (a) “appears to give a trial court some discretion as to whether to
sever or restrict the unconscionable provision or whether to refuse to enforce
the entire agreement. But it also appears to contemplate the latter course
only when an agreement is ‘permeated’ by unconscionability.” (Armendariz,
supra, 24 Cal.4th at p. 122.) The court proceeded to analyze “the question of
when a trial court abuses its discretion by refusing to enforce an entire
agreement.” (Ibid., italics added.) And it concluded that severance was
inappropriate in that case in part because there were “multiple unlawful
provisions,” meaning “the trial court did not abuse its discretion in concluding
that the arbitration agreement [was] permeated by an unlawful purpose.”
(Id. at p. 124, italics added.)
Tesla claims that, instead of reviewing the trial court’s decision not to
sever for an abuse of discretion, we should review de novo the parties’
“contractual severability agreement.” It is true, as we have said, and
consistent with cases cited in Tesla’s severance analysis, that we review de
novo the language of an arbitration clause to determine whether it is
unconscionable. (See Pinnacle, supra, 55 Cal.4th at p. 236; see also, e.g.,
EFund Capital Partners v. Pless (2007) 150 Cal.App.4th 1311, 1320.) Tesla
25
claims we must rely on the general rule that courts review contract terms de
novo in analyzing the severance clause. (E.g., San Diego Water Authority v.
Metropolitan Water Dist. of Southern California (2017) 12 Cal.App.5th 1124,
1156 [interpreting de novo the terms of an exchange agreement between two
water agencies].) This argument ignores the fact that we already have
reviewed the formal offer letter de novo and found it to be substantively and
procedurally unconscionable. It would hardly make sense to decide the
contract was forced on Barraza and thus procedurally unconscionable but
then apply the severance clause because, standing alone, the clause is not
unconscionable. Doing so would not avoid the unconscionable result of the
formal offer letter that we already have concluded exists here. (Cf. Civ. Code,
§ 1670.5, subd. (a).)
Once again we are persuaded by the analysis in Murrey, supra,
87 Cal.App.5th 1223. There, as here, the arbitration provisions “contained a
high degree of procedural unconscionability. If these provisions had not been
challenged in litigation, [Barraza] would have been at a significant
disadvantage during arbitration. . . . When we consider the procedural and
substantively unconscionable provisions together, they indicate a concerted
effort to impose on an employee a forum with distinct advantages for the
employer.” (Id. at p. 1256.) As in Murrey and Armendariz, we conclude that
“the arbitration agreement is permeated by an unlawful purpose.”
(Armendariz, supra, 24 Cal.4th at p. 124; Murrey at p. 1256.) And as the trial
court noted, severance would “mean[] that the lack of mutuality under which
Barraza’s likely claims would be arbitrated and Tesla’s likely claims litigated
would never be addressed,” since Tesla would still have the benefit of being
able to pursue litigation under the PIIA. Tesla’s counsel suggested at oral
argument that the solution would be to require that Tesla’s PIIA claims be
26
arbitrated. But this proposed solution would require not just severing the
PIIA exclusion in the arbitration agreement, but also reforming or voiding
the separate PIIA agreement. For all these reasons, we conclude that the
trial court did not err in declining to sever the unconscionable provisions.
III.
DISPOSITION
The order denying Tesla’s motion to compel arbitration is affirmed.
Barraza shall recover her costs on appeal.
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_________________________
Humes, P.J.
WE CONCUR:
_________________________
Banke, J.
_________________________
Swope, J.*
*Judge of the Superior Court of the County of San Mateo, assigned by
the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
Barraza v. Tesla A165347
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