Stanford Law School - Robert Crown Law Library

Filed 2/24/11



IN THE SUPREME COURT OF CALIFORNIA



SONIC-CALABASAS A, INC.,

Plaintiff and Appellant,

S174475

v.

Ct.App. 2/4 B204902

FRANK MORENO,

Los Angeles County

Defendant and Respondent.

Super. Ct. No. BS107161



Under Labor Code section 98 et seq., an employee with a claim for unpaid wages

has a right to seek an informal hearing in front of the Labor Commissioner, a so-called

“Berman” hearing. If the employee obtains an award at the Berman hearing, the

employer may request de novo review of the award in the superior court, which the

statute calls an “appeal.” As explained at greater length below, the statutory regime of

which the Berman hearing is part contains a number of provisions designed to assist

employees during this process and to deter frivolous employer defenses. These

provisions include the Labor Commissioner‟s representation in the superior court of

employees unable to afford counsel, the requirement that the employer post an

undertaking in the amount of the award, and a one-way attorney fee provision that

requires an employer that is unsuccessful in the appeal to pay the employee‟s attorney

fees.

In this case, we must decide whether a provision in an arbitration agreement that

the employee enters as a condition of employment requiring waiver of the option of a

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Berman hearing is contrary to public policy and unconscionable. We conclude that it is,

and therefore reverse the Court of Appeal‟s contrary judgment. We nonetheless conclude

that arbitration agreements may be enforced after a Berman hearing has taken place, i.e.,

the appeal from such a hearing may be made, pursuant to a valid arbitration agreement, in

front of an arbitrator rather than in court.

Furthermore, we must decide whether a state law rule that a Berman waiver in an

arbitration agreement is unconscionable and contrary to public policy is preempted by the

Federal Arbitration Act (FAA; 9 U.S.C. § 1, et seq.). In arguing this issue, the parties

particularly focus on a recent United States Supreme Court case, Preston v. Ferrer (2008)
552 U.S. 346 (Preston), holding that a provision in this state‟s Talent Agencies Act

vesting original jurisdiction of all disputes under that statute with the Labor

Commissioner was preempted by the FAA. We conclude, as did the Court of Appeal

below, that Preston is distinguishable and that our holding is not preempted by the FAA.

I.

FACTS AND PROCEDURAL HISTORY

The facts are not in dispute. Frank Moreno is a former employee of

Sonic-Calabasas A, Inc. (Sonic), which owns and operates an automobile dealership. As

a condition of his employment with Sonic, Moreno signed a document entitled

“Applicant‟s Statement & Agreement.” The agreement set forth a number of conditions

of employment, including consent to drug testing and permission to contact former

employers, as well as a provision making the employment at will. Critically for our case,

the agreement contained a paragraph governing dispute resolution. The agreement

required both parties to submit their employment disputes to “binding arbitration under

the Federal Arbitration Act, in conformity with the procedures of the California

Arbitration Act (Cal. Code Civ. Proc. sec. 1280 et seq. . . .).” The agreement applied to

“all disputes that may arise out of the employment context . . . that either [party] may

have against the other which would otherwise require or allow resort to any court or other

governmental dispute resolution forum[,] . . . whether based on tort, contract, statutory, or

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equitable law, or otherwise.” The agreement specified that it did not apply to claims

brought under the National Labor Relations Act or the California Workers‟

Compensation Act, or to claims before the Employment Development Department.

Furthermore, the agreement provided that the employee was not prevented from “filing

and pursuing administrative proceedings only before the California Department of Fair

Employment and Housing or the U.S. Equal Opportunity Commission.”

At some point, Moreno left his position with Sonic. In December 2006, Moreno

filed an administrative wage claim with the Labor Commissioner for unpaid vacation pay

pursuant to Labor Code section 98 et seq.1 Moreno alleged that he was entitled to unpaid

“[v]acation wages for 63 days earned 7/15/02 to 7/15/06 at the rate of $441.29 per day.”

The filing of this claim is the first step toward obtaining a Berman hearing.

In February 2007, Sonic petitioned the superior court to compel arbitration of the

wage claim and dismiss the pending administrative action. (Code Civ. Proc., § 1281.2.)

Sonic argued Moreno waived his right to a Berman hearing in the arbitration agreement.

The Labor Commissioner intervened below on Moreno‟s behalf (§ 98.5), and

Moreno adopted the Labor Commissioner‟s arguments. The Labor Commissioner argued

that the arbitration agreement, properly construed, did not preclude Moreno from filing

an administrative wage claim under section 98 et seq. The Labor Commissioner argued

that resort to a Berman hearing was compatible with the arbitration agreement, because

the hearing could be followed by arbitration in lieu of a de novo appeal to the superior

court that is provided in section 98.2, subdivision (a). The Labor Commissioner

contended that a contrary interpretation of the arbitration agreement to waive a Berman

hearing would violate public policy, relying on our decision regarding mandatory


1

All statutory references are to this code unless otherwise indicated.

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employment arbitration agreements in Armendariz v. Foundation Health Psychcare

Services, Inc. (2000) 24 Cal.4th 83 (Armendariz).

The superior court denied the petition to compel arbitration as premature. Citing

Armendariz, the superior court stated that, as a matter of “basic public policy . . . until

there has been the preliminary non-binding hearing and decision by the Labor

Commissioner, the arbitration provisions of the employment contract are unenforceable,

and any petition to compel arbitration is premature and must be denied.”

Sonic appealed from the order of denial. (Code Civ. Proc., § 1294, subd. (a).)

The Labor Commissioner did not participate in the appeal, nor in proceedings before this

court. During the briefing period, the United States Supreme Court decided Preston,

which held that the Labor Commissioner‟s original and exclusive jurisdiction under the

Talent Agencies Act (Lab. Code, § 1700 et seq.) was preempted when the parties entered

into an arbitration agreement governed by the FAA. (Preston, supra, 552 U.S. 346.)

The Court of Appeal concluded at the threshold that Preston was not dispositive of

the appeal, reasoning that Preston applied to cases in which a party was challenging the

validity of a contract as a whole and seeking to have that challenge adjudicated by an

administrative agency; it did not apply to cases in which the party was challenging the

arbitration clause itself as unconscionable. The Court of Appeal further concluded that

the arbitration agreement, correctly interpreted, constituted a waiver of a Berman hearing.

By its terms, the agreement precluded Moreno from pursuing any judicial “or other

government dispute resolution forum,” subject to certain enumerated exceptions. “Given

that neither the Division of Labor Standards Enforcement nor the Labor Commissioner

was listed among the stated exceptions, we conclude, as a matter of law, that Moreno was

barred from pursuing an administrative wage claim under section 98 et seq.”

The Court of Appeal then concluded, for reasons explained below, that a Berman

waiver was not contrary to public policy. Moreno petitioned for review, contending the

Court of Appeal decided this question incorrectly. Sonic, in its answer to the petition,

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contended the Court of Appeal was correct, and renewed its argument that a holding

invalidating a Berman waiver would be preempted by the FAA, as construed in Preston.

We granted review to decide these questions.

II.

DISCUSSION

A. The Berman Hearing and Posthearing Procedures

As we have explained: “If an employer fails to pay wages in the amount, time or

manner required by contract or by statute, the employee has two principal options. The

employee may seek judicial relief by filing an ordinary civil action against the employer

for breach of contract and/or for the wages prescribed by statute. (§§ 218, 1194.) Or the

employee may seek administrative relief by filing a wage claim with the commissioner

pursuant to a special statutory scheme codified in sections 98 to 98.8. The latter option

was added by legislation enacted in 1976 (Stats. 1976, ch. 1190, §§ 4-11, pp. 5368-5371)

and is commonly known as the „Berman‟ hearing procedure after the name of its

sponsor.” (Cuadra v. Millan (1998) 17 Cal.4th 855, 858 (Cuadra), disapproved on other

grounds in Samuels v. Mix (1999) 22 Cal.4th 1, 16, fn. 4.)

Once an employee files a complaint with the Labor Commissioner for nonpayment

of wages, section 98, subdivision (a) “ „provides for three alternatives: the commissioner

may either accept the matter and conduct an administrative hearing [citation], prosecute a

civil action for the collection of wages and other money payable to employees arising out

of an employment relationship [citation], or take no further action on the complaint.

[Citation.]‟ ” (Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1115.)

“If the commissioner decides to accept the matter and conduct an administrative hearing,

he or she must hold the hearing within 90 days.” (Ibid.) Moreover, prior to holding a

Berman hearing or pursuing a civil action, the Labor Commissioner‟s staff may attempt

to settle claims either informally or through a conference between the parties. (Dept. of

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Industrial Relations, Div. of Labor Stds. Enforcement (DLSE), Policies and Procedures

for Wage Claim Processing (2001 rev.) pp. 2-3).

A Berman hearing is conducted by a deputy Labor Commissioner, who has the

authority to issue subpoenas. (Cal. Code Regs., tit. 8, §§ 13502, 13506.) “The Berman

hearing procedure is designed to provide a speedy, informal, and affordable method of

resolving wage claims. In brief, in a Berman proceeding the commissioner may hold a

hearing on the wage claim; the pleadings are limited to a complaint and an answer; the

answer may set forth the evidence that the defendant intends to rely on, and there is no

discovery process; if the defendant fails to appear or answer no default is taken and the

commissioner proceeds to decide the claim, but may grant a new hearing on request. (§

98.) The commissioner must decide the claim within 15 days after the hearing. (§ 98.1.)”

(Cuadra, supra, 17 Cal.4th at pp. 858-859.) The hearings are not governed by the

technical rules of evidence, and any relevant evidence is admitted “if it is the sort of

evidence on which responsible persons are accustomed to rely in the conduct of serious

affairs.” (Cal. Code Regs., tit. 8, § 13502.) The hearing officer is authorized to assist the

parties in cross-examining witnesses and to explain issues and terms not understood by

the parties. (DLSE, Policies and Procedures for Wage Claim Processing, supra, at p. 4.)

The parties have a right to have a translator present. (Ibid.; see § 105 [“Labor

Commissioner shall provide that an interpreter be present at all hearings and interviews

where appropriate.”].)

Once judgment is entered in the Berman hearing, enforcement of the judgment is

to be a court priority. (§ 98.2, subd. (e).) The Labor Commissioner is charged with the

responsibility of enforcing the judgment and “shall make every reasonable effort to

ensure that judgments are satisfied, including taking all appropriate legal action and

requiring the employer to deposit a bond as provided in Section 240.” (Id., subd. (i).)

Within 10 days after notice of the decision any party may appeal to the appropriate

court, where the claim will be heard de novo; if no appeal is taken, the commissioner‟s

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decision will be deemed a judgment, final immediately, and enforceable as a judgment in

a civil action. (§ 98.2.) If an employer appeals the Labor Commissioner‟s award, “[a]s a

condition to filing an appeal pursuant to this section, an employer shall first post an

undertaking with the reviewing court in the amount of the order, decision, or award. The

undertaking shall consist of an appeal bond issued by a licensed surety or a cash deposit

with the court in the amount of the order, decision, or award.” (§ 98.2, subd. (b).) The

purpose of this requirement is to discourage employers from filing frivolous appeals and

from hiding assets in order to avoid enforcement of the judgment. (Sen. Com. on Labor

and Industrial Relations, Analysis of Assem. Bill No. 2772 (2009-2010 Reg. Sess.) as

amended Apr. 8, 2010, p. 4.)

Under section 98.2, subdivision (c), “If the party seeking review by filing an

appeal to the superior court is unsuccessful in the appeal, the court shall determine the

costs and reasonable attorney‟s fees incurred by the other parties to the appeal, and assess

that amount as a cost upon the party filing the appeal. An employee is successful if the

court awards an amount greater than zero.” This provision thereby establishes a one-way

fee-shifting scheme, whereby unsuccessful appellants pay attorney fees while successful

appellants may not obtain such fees. (See Dawson v. Westerly Investigations, Inc. (1988)

204 Cal.App.3d Supp. 20, 24-25 [construing the predecessor statute, § 98.2, subd. (b)].)2


2

That section 98.2, subdivision (c) is especially protective of employees is evident

from the last sentence of that subdivision and the legislative history behind it. Before the
statute was amended in 2003, it did not explicitly provide that an employee would be
considered successful on appeal if the court awards an amount greater than zero (cf. Stats.
2002, ch. 784, § 522), but Court of Appeal decisions construed the statute in that manner.
(Cardenas v. Mission Industries (1991) 226 Cal.App.3d 952, 960; Triad Data Services,
Inc. v. Jackson (1984) 153 Cal.App.3d Supp. 1.) We disapproved of those cases in Smith
v. Rae-Venter Law Group (2002) 29 Cal.4th 345, 370-371, concluding that an employee
would be considered unsuccessful on appeal, and subject to section 98.2, subdivision
(c)‟s fee shifting provision, if its award on appeal was less than the Labor
Commissioner‟s award. The Legislature then amended the statute in 2003 specifically to
overule Smith v. Rae-Venter and to restore the law to be in accord with the holdings in

(footnote continued on next page)

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This is in contrast to section 218.5, which provides that in civil actions for nonpayment of

wages initiated in the superior court, the “prevailing party” may obtain attorney fees.

Furthermore, the Labor Commissioner “may” upon request represent a claimant

“financially unable to afford counsel” in the de novo proceeding and “shall” represent the

claimant if he or she is attempting to uphold the Labor Commissioner‟s award and is not

objecting to the Commissioner‟s final order. (§ 98.4.) Such claimants represented by the

Labor Commissioner may still collect attorney fees pursuant to section 98.2, although

such claimants have not, strictly speaking, incurred attorneys fees, because construction

of the statute in this manner is consistent with the statute‟s goals of discouraging

unmeritorious appeals of wage claims. (Lolley v. Campbell (2002) 28 Cal.4th 367, 376.)

In sum, when employees have a wage dispute with an employer, they have a right

to seek resolution of that dispute through the Labor Commissioner, either through the

commissioner‟s settlement efforts, through an informal Berman hearing, or through the

commissioner‟s direct prosecution of the action. When employees prevail at a Berman

hearing, they will enjoy the following benefits: (1) the award will be enforceable if not

appealed; (2) the Labor Commissioner is statutorily mandated to expend best efforts in

enforcing the award, which is also established as a court priority; (3) if the employer

appeals, it is required to post a bond equal to the amount of the award so as to protect

against frivolous appeals and evading the judgment; (4) a one-way attorney fee provision

will ensure that fees will be imposed on employers who unsuccessfully appeal but not on

employees who unsuccessfully defend their Berman hearing award, or on employees who

(footnote continued from previous page)

Cardenas and Triad. (See Legis. Counsel‟s Dig., Assem. Bill No. 223 (2003-2004
Reg.Sess.).) The legislative history shows that the Legislature was concerned that the
Smith v. Rae-Venter rule would discourage meritorious appeals by employees and even
discourage the use of Berman hearings altogether. (Sen. Com. on Labor and Industrial
Relations, Analysis of Assem. Bill No. 223 (2003-2004 Reg. Sess.) as introduced, p. 3.)

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appeal and are awarded an amount greater than zero in the superior court; (5) the Labor

Commissioner is statutorily mandated to represent in an employer‟s appeal claimants

unable to afford an attorney if the claimant does not contest the Labor Commissioner‟s

award.

B. Berman Hearings and Arbitration Are Compatible

We note that the Labor Commissioner, who intervened in this case at the trial

court level, did not contend that arbitration and Berman hearings are incompatible, or that

the present arbitration agreement could not be enforced, but only that “the arbitration

agreement should be construed as providing that respondent is entitled to initially pursue

his remedy before the Commissioner and is only required to proceed to arbitration if and

when a de novo appeal is filed.” The trial court‟s order did not irrevocably deny the

petition to compel arbitration but merely ruled that it could not be granted until a Berman

hearing had taken place. This is also Moreno‟s position before us. Because, as will

appear, the answer to the question whether a Berman hearing and arbitration are

compatible will shape our answer to the questions of whether a Berman waiver is

contrary to public policy and unconscionable, we address the former question first.

We construe the relevant statutes to permit binding arbitration after a Berman

hearing. We recently considered an analogous statutory scheme in Schatz v. Allen

Matkins Leck Gamble & Mallory LLP (2009) 45 Cal.4th 557 (Schatz). In that case, a

client in a fee dispute with his attorney first resorted to the Mandatory Fee Arbitration

Act (MFAA), which provides a nonbinding method of arbitrating attorney-client fee

disputes governed by rules established by the State Bar. (Bus. & Prof. Code, § 6200.)

When the arbitrators decided in the attorney‟s favor, the client, Schatz, filed a complaint

in superior court for a trial de novo, notwithstanding the fact that attorney and client had

entered into an agreement for binding arbitration. Schatz, in resisting a petition to

compel arbitration, argued that by its literal terms the MFAA, in Business and

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Professions Code section 6204, gives either party to an MFAA arbitration the right to a

“trial” after the arbitration if a request for a trial is filed within 30 days.

In answering the question of whether Schatz was bound by the arbitration

agreement, we framed the analysis in terms of whether the statutory language in the

MFAA was designed to impliedly repeal the California Arbitration Act (CAA), which

contemplated that binding arbitration agreements be enforced. We noted that all

presumptions are against implied repeal, and that, absent an express declaration of

legislative intent, courts will find an implied repeal only when there is no rational basis

for harmonizing the two potentially conflicting statutes, and the statutes are

irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent

operation. (Schatz, supra, 45 Cal.4th at p. 573.)

We concluded in Schatz that there was no such implied repeal. “ „Nothing in the

MFAA makes [a binding] arbitration agreement . . . unenforceable. The MFAA and the

CAA create two very different types of arbitration . . . . Both may be given effect.

Clients may, if they wish, request and obtain nonbinding arbitration under the MFAA.

That arbitration may, and often will, resolve the dispute. But if the client does not

request nonbinding arbitration, or if it is held but does not resolve the dispute, then the

MFAA has played its role, and the matter would continue without it. Either party may

then pursue judicial action unless the parties had agreed to binding arbitration. In that

event, the CAA would apply, and the dispute would go to binding arbitration. This

conclusion is consistent with the statutory language of both the MFAA and the CAA and

the strong public policy in favor of binding arbitration as a means of resolving

disputes.‟ ” (Schatz, supra, 45 Cal.4th at p. 574.)

As in Schatz, we do not construe the Berman hearing procedures as impliedly

repealing the CAA‟s requirement that arbitration agreements be enforced. Thus, as in

Schatz, notwithstanding the fact that Berman‟s nonbinding dispute resolution procedure

contemplates a de novo appeal to the superior court (§ 98.2, subd. (a)), we interpret that

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language to provide that “ „[e]ither party may . . . pursue judicial action unless the parties

had agreed to binding arbitration. In that event, the CAA would apply, and the dispute

would go to binding arbitration.‟ ” (Schatz, supra, 45 Cal.4th at p. 574.)

Like the Labor Commissioner below, we see no reason why the statutory

protections afforded employees following a Berman hearing cannot be made available in

an arbitration proceeding. A party to a Berman hearing seeking a de novo appeal via

arbitration pursuant to a prior agreement rather than through a judicial proceeding would

initially file an appeal in superior court pursuant to section 98.2, subdivision (a), together

with a petition to compel arbitration. The superior court would determine whether the

appeal is timely and whether it comports with all the statutory requirements, such as the

undertaking requirement in subdivision (b). If so, and if the petition to compel arbitration

is unopposed, or found to be meritorious, the trial court will grant the petition. The Labor

Commissioner, pursuant to section 98.4, may then represent an eligible wage claimant in

the arbitration proceeding. The one-way fee-shifting provisions of section 98.2,

subdivision (c) will be enforced initially by the arbitrator, with such judicial review as

may be appropriate.

The above framework does not purport to anticipate every problem that may arise

from dovetailing the Berman hearing statutes and the CAA. But the Labor

Commissioner‟s position below that the Berman hearing was merely preliminary to,

rather than preemptive of, binding arbitration confirms our conclusion that the two

statutory schemes are compatible and that having the Berman hearing precede arbitration

is workable.

That a Berman hearing and an arbitration pursuant to the CAA are compatible

does not, of course, answer the question whether an employer can require an employee to

waive a Berman hearing and go directly to arbitration as a condition of employment. We

turn now to the question.

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C. Does the Waiver of a Berman Hearing Violate Public Policy and Is It

Unconscionable?

In determining whether a Berman waiver violates public policy, we first review

the law related to mandatory employment arbitration agreements, i.e., arbitration

agreements that are conditions of new or continuing employment. In Armendariz, supra,

24 Cal.4th 83, we concluded that such agreements were enforceable, provided they did

not contain features that were contrary to public policy or unconscionable. (Id. at p. 99.)

We concluded that “arbitration agreements cannot be made to serve as a vehicle for the

waiver of [unwaivable] statutory rights,” such as rights under the Fair Employment and

Housing Act (FEHA). To ensure that such waiver did not occur, we held that arbitrations

addressing such statutory rights would be subject to certain minimal requirements. As we

later summarized these: “(1) the arbitration agreement may not limit the damages

normally available under the statute (Armendariz, supra, 24 Cal.4th at p. 103); (2) there

must be discovery „sufficient to adequately arbitrate their statutory claim‟ (id. at p. 106);

(3) there must be a written arbitration decision and judicial review „ “sufficient to ensure

the arbitrators comply with the requirements of the statute” ‟ (ibid.); and (4) the employer

must „pay all types of costs that are unique to arbitration‟ (id. at p. 113).” (Little v. Auto

Stiegler, Inc. (2003) 29 Cal.4th 1064, 1076 (Little).) We did not hold that the above

requirements were the only conditions that public policy could place on arbitration

agreements, and have since recognized other limitations. (See Gentry v. Superior Court

(2007) 42 Cal.4th 443, 463 (Gentry) [prohibition of class arbitration contrary to public

policy in some cases].)

Here we must decide whether an employee in the context of an arbitration

agreement can waive the right to a Berman hearing and posthearing protections. In

concluding that such rights may be waived, the Court of Appeal first acknowledged,

correctly, that the right to vacation pay was a vested right and therefore unwaivable under

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section 227.3.3 (See Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774, 780, 784.)

Having established the vested right to vacation pay, the court framed its inquiry as

follows: “We must decide whether the absence of these statutory protections will

significantly impair Moreno‟s ability to vindicate his wage rights in arbitration.

According to Gentry . . . , „Armendariz makes clear that for public policy reasons we will

not enforce provisions contained within arbitration agreements that pose significant

obstacles to the vindication of employees‟ statutory rights.‟ (Gentry, supra, 42 Cal.4th at

p. 463, fn. 7.)”

The court then reasoned that the Berman hearing and post-Berman protections

would not significantly impair Moreno‟s ability to vindicate his right to vacation pay

through arbitration. “Significantly, all of these statutory protections are only available if

and when an employer appeals from an adverse administrative ruling. Obviously, it is

impossible to determine whether Moreno will prevail at the administrative hearing.

Accordingly, it is impossible to determine whether Moreno will lose any statutory

protections if the Berman waiver is enforced. Unless enforcing the Berman waiver will

pose significant obstacles to the vindication of Moreno‟s statutory wage rights,

Armendariz does not require us to invalidate the waiver. At most, enforcing the Berman

waiver will eliminate the possibility of receiving statutory protections that are contingent

on an administrative ruling in Moreno‟s favor. We are not persuaded that the loss of

what are merely contingent benefits can be equated with the significant obstacle to the

vindication of statutory rights that Armendariz sought to address.”

3

Section 227.3 states in part: “Unless otherwise provided by a collective-

bargaining agreement, whenever a contract of employment or employer policy provides
for paid vacations, and an employee is terminated without having taken off his vested
vacation time, all vested vacation shall be paid to him as wages at his final rate in
accordance with such contract of employment or employer policy respecting eligibility or
time served; provided, however, that an employment contract or employer policy shall
not provide for forfeiture of vested vacation time upon termination.”

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The Court of Appeal elaborated: “[T]he record contains no evidence that Moreno

or any other wage claimant lacks the knowledge, skills, abilities, or resources to vindicate

his or her statutory wage rights in an arbitral forum. Even assuming the arbitral process

is more difficult to navigate than the Berman process, there is nothing in this record to

indicate that enforcing a Berman waiver will significantly impair the claimant‟s ability to

vindicate his or her statutory rights. In short, Moreno has failed to demonstrate either the

inadequacy of the arbitral forum provided by his arbitration agreement or the existence of

a factual basis to invalidate all Berman waivers as against public policy.”

In the present case, however, the question is not whether, in a court‟s judgment,

the absence of statutory protections afforded by the Berman hearing and the potential

post-Berman protections would significantly impair Moreno‟s ability to vindicate his

unwaivable right to vacation pay in arbitration. Rather, the question is whether the

employee‟s statutory right to seek a Berman hearing, with all the possible protections that

follow from it, is itself an unwaivable right that an employee cannot be compelled to

relinquish as a condition of employment. We conclude that it is.

The question whether the waiver of a particular statutory protection is contrary to

public policy essentially entails discerning legislative intent. Sometimes statutory rights

are made expressly unwaivable. (See § 1194 [right to recover minimum wage

notwithstanding any agreement]; Civ. Code, § 1751 [waiver of rights under the Consumer

Legal Remedies Act unenforceable and void].) In other cases, whether a statute can be

waived may be implied from the context and purpose of the statute. Thus, in Armendariz,

we deduced the unwaivability of FEHA rights to redress nondiscrimination from the fact

that it incorporated this state‟s strong public policy against various types of employment

discrimination. (Armendariz, supra, 24 Cal.4th at pp. 100-101.)

There is no question that the lawful payment of wages owed is not merely an

individual right but an important public policy goal. As one appellate court correctly

summarized the matter: “Civil Code section 3513 provides, in pertinent part, that:

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„[a]nyone may waive the advantage of a law intended solely for his benefit. But a law

established for a public reason cannot be contravened by a private agreement.‟ [¶] The

determination of whether a particular statute is for public or private benefit is for the

court in each case (1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, § 645, p.

586). The provisions of the Labor Code, particularly those directed toward the payment

of wages to employees entitled to be paid, were established to protect the workers and

hence have a public purpose. As was pointed out in In re Trombley (1948) 31 Cal.2d

801, 809: „[i]t has long been recognized that wages are not ordinary debts, that they may

be preferred over other claims, and that, because of the economic position of the average

worker and, in particular, his dependence on wages for the necessities of life for himself

and his family, it is essential to the public welfare that he receive his pay when it is due.‟

(Also see Kerr’s Catering Service v. Department of Industrial Relations (1962) 57 Cal.2d

319, 326-327.)” (Henry v. Amrol, Inc. (1990) 222 Cal.App.3d Supp. 1, 6.)

Although the statutory protections that the Berman hearing and the posthearing

procedures afford employees were added piecemeal over a number of years, their

common purpose is evident: Given the dependence of the average worker on prompt

payment of wages, the Legislature has devised the Berman hearing and posthearing

process as a means of affording an employee with a meritorious wage claim certain

advantages, chiefly designed to reduce the costs and risks of pursuing a wage claim,

recognizing that such costs and risks could prevent a theoretical right from becoming a

reality. These procedures, including the employer undertaking and the one-way fee

provision, also deter employers from unjustifiably prolonging a wage dispute by filing an

unmeritorious appeal. This statutory regime therefore furthers the important and

long-recognized public purpose of ensuring that workers are paid wages owed. The

public benefit of the Berman procedures, therefore, is not merely incidental to the

legislation‟s primary purpose but in fact central to that purpose. Nor can there be any

doubt that permitting employers to require employees, as a condition of employment, to

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waive their right to a Berman hearing would seriously undermine the efficacy of the

Berman hearing statutes and hence thwart the public purpose behind the statutes.

Sonic argues in effect that even if a nonarbitration clause that required a Berman

hearing waiver is contrary to public policy, an arbitration clause containing the same

waiver would not be, because arbitration offers the same or similar advantages as does

the Berman hearing process. We disagree. As the previous part of this opinion makes

clear, the choice is not between a Berman hearing and arbitration, because a person

subject to binding arbitration and eligible for a Berman hearing will still be subject to

binding arbitration if the employer appeals the Berman hearing award. The choice is

rather between arbitration that is or is not preceded by a Berman hearing. As discussed

above, there are considerable advantages for employees to undergo the Berman hearing

process before arbitration. First, the Labor Commissioner‟s staff is directed to settle

claims either informally or through a conference between the parties. (DLSE, Policies

and Procedures for Wage Claim Processing, supra, at pp. 2-3.) If no settlement is

obtained, a Berman hearing is to be conducted in “an informal setting preserving the

rights of the parties” (§ 98, subd. (a)), conducted, as explained above, without discovery

or formal rules of evidence, and with the hearing officer‟s assistance in cross-examining

witnesses and understanding terms and issues. It is thus structured so that an employee

can avail himself or herself of the process without the need of counsel. An employee

who is successful at a Berman hearing will have the resources of the Labor

Commissioner behind him or her to ensure that the judgment is enforced. (§ 98.2, subd.

(i).) If the employer appeals, then the employer must post an undertaking in the amount

of the award to ensure enforcement of the judgment if the employee ultimately prevails.

(§ 98.2, subd. (b).) An employee unable to afford counsel will be represented by the

Labor Commissioner if the employer requests arbitration and the employee does not

contest the commissioner‟s award. (§ 98.4.) Moreover, an employee in this

16

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circumstance will not be liable for the employer‟s attorney fees if the employer prevails

on appeal. (§ 98.2, subd. (c).)

In contrast, arbitration, notwithstanding its advantages as a reasonably expeditious

means of resolving disputes, still generally bears the hallmark of a formal legal

proceeding in which representation by counsel is necessary or at least highly

advantageous. The arbitration in question here, for example, is to be conducted by a

“retired California Superior Court Judge” and “to the extent applicable in civil actions in

California courts, the following shall apply and be observed: all rules of pleading

(including the right of demurrer), all rules of evidence, all rights to resolution of the

dispute by means of motions for summary judgment, judgment on the pleadings, and

judgment under Code of Civil Procedure section 631.8.” The arbitrator‟s award at either

party‟s request will be reviewed by a second arbitrator who will “as far as practicable,

proceed according to the law and procedures applicable to appellate review by the

California Court of Appeal of a civil judgment following court trial.” A wage claimant

undergoing arbitration will need the same kind of legal representation as if he or she were

going to superior court.

Thus, an employee going directly to arbitration will lose a number of benefits and

advantages. He or she will not benefit from the Labor Commissioner‟s settlement efforts

and expertise. He or she must pay for his or her own attorney whether or not able to

afford it — an attorney who may not have the expertise of the Labor Commissioner.

Moreover, what matters to the employee is not a favorable arbitration award per se but

the enforcement of that award, and an employee going directly to arbitration will have no

special advantage obtaining such enforcement. Nor is there any guaranty that the

employee will not be responsible for any successful employer‟s attorney fees, for under

section 218.5, an employee who proceeds directly against an employer with a wage claim

17

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not preceded by a Berman hearing will be liable for such fees if the employer prevails on

appeal.4 In short, the Berman hearing process, even when followed by binding

arbitration, provides on the whole substantially lower costs and risks to the employee,

greater deterrence of frivolous employer claims, and greater assurance that awards will be

collected, than does the binding arbitration process alone.5

Sonic argues that we can construe the arbitration agreement, as we did in

Armendariz, to provide protections equivalent to those available during and after a

Berman hearing. The argument is without merit. In Armendariz, we recognized that in


4

At oral argument, Sonic‟s counsel argued that its arbitration in fact resembled a

Berman hearing in its informality, and the arbitrator would or might incorporate Berman-
like protections such as one-way fee shifting. Nothing in the arbitration agreement, nor
anything else in the record before us, confirms these representations. It may be possible
for an arbitration system to be designed so that it provides an employee all the advantages
of the Berman hearing and posthearing protections. But there is no indication that the
present arbitration system is so designed.

5

Nor are we persuaded to the contrary by assertions about arbitration‟s greater

expedition. Based on the various statutory deadlines, as well as memoranda by the Labor
Commissioner and declarations by labor law attorneys, we concluded in 1998 that the
time between filing a complaint with the Labor Commissioner and a Berman hearing date
is usually four to six months. (Cuadra, supra, 17 Cal.4th at pp. 860-862 & fn. 7.) Sonic,
in its petition to compel arbitration below, documented three cases in which the
commencement of a Berman hearing took longer than this average, in one case slightly
under four years, in two other cases slightly under one year. No doubt the time between
the filing of an administrative complaint and commencement of a Berman hearing is
subject to variation. Whether the delays represent a backlog in the Labor
Commissioner‟s workload, or were generated by the parties themselves, or how these
times compare to the completion of an arbitration, is not clear. It may be the case that
once a dispute has arisen, some employees‟ assessment of the time it will take to conduct
a Berman hearing, when compared to the time it will take to resolve a claim by going
directly to arbitration, will weigh in favor of the latter course. That an employee may
make this assessment does not alter the fact that he or she gains no advantage, and places
himself or herself at a possible significant disadvantage, by agreeing to waive the option
of a Berman hearing in advance as a condition of employment.

18

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some cases, terms in an arbitration agreement that are unconscionable or contrary to

public policy may be severed and the rest of the agreement enforced. (Armendariz,

supra, 24 Cal.4th at pp. 123-124; see Little, supra, 29 Cal.4th at pp. 1075-1076.) We also

construed an arbitration agreement that was silent about some matters, such as costs, so

as to make it conform to public policy. (Armendariz, supra, at p. 113.) Here, Sonic does

not ask us to sever an unlawful provision or to construe a provision in a manner that

renders it lawful, but rather to, in effect, reform a statute. As reviewed above, the

statutory protections pursuant to sections 98.2 and 98.4 are contingent on the Labor

Commissioner‟s findings in a Berman hearing that an employee‟s claim is meritorious.

For this court to order the Labor Commissioner or arbitrator to provide those protections

when there has been no prior favorable determination in a Berman hearing is contrary to

statute and beyond our authority.6

Contrary to Sonic‟s suggestion, and that of the dissent, the fact that the Berman

hearing is merely an option for employees, who may also go directly to court (§ 218),

does not alter the nonwaivability of the Berman hearing protections, for it is precisely

that option which an employer may not foreclose in a predispute agreement. The purpose

of the Berman hearing statutes is to empower wage claimants by giving them access to a

Berman hearing with all of its advantages. Allowing an employee the freedom to choose


6

This is not to say that Armendariz is irrelevant in the context of

post-Berman-hearing arbitration. As Sonic appears to have conceded at oral argument,
Armendariz‟s procedural protections, and in particular its fee-shifting requirement, are
applicable. A wage claimant who has undergone a Berman hearing cannot be compelled
to bear arbitration forum costs he or she would not be required to pay if the employer
appealed to superior court. (See Armendariz, supra, 24 Cal.4th at p. 113.) A contrary
rule that would subject a wage claimant to either the risk or the reality of being saddled
with substantial arbitration costs that could either diminish or nullify a potential award or
discourage employees from seeking such an award in the first place would be in
fundamental conflict with the purpose of a Berman hearing to provide employees a low-
cost and effective means of vindicating such claims.

19

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whether to resort to a Berman hearing when a wage claim arises, after evaluating in light

of the particular circumstances whether such a hearing is advantageous, is wholly

consistent with the public policy behind the Berman hearing statutes. A requirement that

the employee surrender the option of a Berman hearing as a condition of employment is

not. As we recognized in Armendariz, our concern is with the impermissible waiver of

certain rights and protections as a condition of employment before a dispute has arisen.

(See Armendariz, supra, 24 Cal.4th at p. 103, fn. 8.)7 We therefore find the argument

that, because the Legislature intended an employee to have the option of a Berman

hearing when a wage claim arises, the Legislature also must have intended to permit

employers to require employees to waive that option as a condition of employment, to be

unpersuasive.

Sonic finds support for the Court of Appeal‟s holding in Gentry, in which we

concluded that some class arbitration waivers are unlawful but declined to categorically

declare invalid all such waivers. Gentry is readily distinguishable. Class arbitration is a

judicially devised procedure. We acknowledged that class actions or arbitrations were

not categorically necessary to vindicate statutory rights, and that under some

circumstances, those rights could be adequately enforced by individual action. (Gentry,

supra, 42 Cal.4th at pp. 462, 464.) We further recognized the well-established principle

that “ „[t]rial courts are ideally situated to evaluate the efficiencies and practicalities of

permitting group action . . . .‟ ” (Id. at pp. 463-464, quoting Linder v. Thrifty Oil Co.

(2000) 23 Cal.4th 429, 435.) In the present case, in contrast, the Berman hearing and

posthearing procedures have been mandated by the Legislature to be available to all


7

We thus do not decide whether it is contrary to public policy to knowingly and

voluntarily waive the right to seek a Berman hearing as part of a freely negotiated,
nonstandard contract, such as may exist between an employer and a highly compensated
executive employee.

20

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employees with wage complaints that fall within the scope of the statute. As discussed

above, that mandate represents a legislative judgment about the special protections and

procedural rights that should be afforded to persons with wage claims in order to ensure

that such claims be fairly resolved. The judgment that such a waiver is contrary to public

policy is not contingent upon the determination of a trial court, during a petition to

compel arbitration, about whether and to what extent a particular wage claimant will

benefit from the Berman hearing process. Indeed, as the Court of Appeal acknowledged,

the trial court at that stage is in no position to determine such matters.

Moreover, notwithstanding the Court of Appeal‟s and Sonic‟s suggestions,

Berman hearings and posthearing protections are by their own terms made available to all

statutorily eligible wage earners, not merely low-wage workers. This legislative

determination cannot be modified by a judicial determination that employees earning

something more than a low wage do not really require these protections and therefore can

be required to waive them as a condition of employment. Sonic suggests that the fact that

Moreno had been earning over $100,000 at the time he left his employment means that he

would not be in the class of persons unable to afford counsel and eligible for

representation by the Labor Commissioner in the event of an appeal. But extending this

suggestion into an argument that a Berman waiver as applied to Moreno is not contrary to

public policy suffers from at least three flaws. First, as Moreno‟s counsel points out,

there is nothing in the record regarding Moreno‟s present financial condition. Second,

the determination of whether a claimant is unable to afford counsel is vested solely in the

Labor Commissioner under section 98.4, and a superior court deciding a petition to

compel arbitration is in no position to guess what the commissioner‟s determination will

be. Third and most fundamentally, even if it could be determined that Moreno‟s financial

condition was such that he would not be represented by the Labor Commissioner, the

Berman statutes provide, as explained, many advantages to all wage claimants, not only

indigent ones. These include the informal hearing itself, the commissioner‟s settlement

21

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efforts, the bonding requirement ensuring that wage awards to employees actually be

enforced, and the one-way fee-shifting provision discouraging frivolous employer

appeals and encouraging the pursuit of meritorious claims without fear of financial

penalty.8 We therefore conclude the Berman waiver at issue here is contrary to public

policy.9


8

Sonic also cites in support Giuliano v. Inland Empire Personnel, Inc. (2007) 149

Cal.App.4th 1276. In that case, a high-ranking executive sued his former employer for
breach of contract and for nonpayment of statutory wages under section 200 et seq. The
Court of Appeal, in upholding the employer‟s petition to compel arbitration, rejected the
argument that the Armendariz requirements applied in that case, which it characterized as
a “garden-variety” breach of contract action. (Giuliano, supra, at p. 1289.) The plaintiff
in Giuliano did not seek a Berman hearing but filed an action directly in court. That case
is therefore inapposite.

9

The dissent goes to great lengths in its attempts to show that a Berman waiver is

not contrary to public policy. Yet it does not contest in any concrete way that Berman
hearings and posthearing protections provide important advantages to employees not
present if the employee went directly to arbitration, or that permitting a Berman hearing
waiver as a condition of employment would substantially undermine the legislative
policy behind the Berman hearing statutes. It is true, as discussed above, that a given
employee may choose to forgo a Berman hearing and go directly to arbitration, perhaps
concluding, for example, that his or her strong case may be resolved more quickly. But
whatever advantages arbitration without a Berman hearing may have for an employee
will be realized if the employee is given a choice, once a wage dispute arises, of going
directly to arbitration or going first to the Labor Commissioner. It is precisely this choice
that the Berman statutes authorize and the predispute waiver at issue in this case, which
the dissent would uphold, seeks to revoke. Moreover, the dissent‟s conjecture that
employers who cannot insert Berman waivers into arbitration agreements will likely
abandon arbitration of wage claims (dis. opn., post, at p. 28, fn. 8) is groundless
speculation. The dissent also seeks to minimize the public importance of the Berman
hearing legislation, notwithstanding venerable case law discussed above affirming that
the collection of wages owed not only vindicates individual rights but fulfills an
important public purpose. (See Armendariz, supra, 24 Cal.4th at pp. 100-101
[anti-employment-discrimination statutes unwaivable notwithstanding significant
individual benefit to employees].) Nor does the dissent‟s lengthy discussion of the case
law of the United States Supreme Court and this court (see dis. opn., post, at pp. 11-16)
— case law that merely stands for the uncontroversial proposition that statutory claims
are generally arbitrable — shed light on the present case. Nor is the dissent correct when

(footnote continued on next page)

22

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Our conclusion is the same if we analyze the issue in terms of unconscionability.10

One common formulation of unconscionability is that it refers to “ „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.‟ ” (Ingle v. Circuit City Stores, Inc. (9th Cir.

(footnote continued from previous page)

it asserts that our public policy arguments are at odds with those of Moreno. Moreno
argues vigorously that the Berman waiver, by forcing employees to forego the various
statutory advantages discussed above and in great detail in his briefs, “limits the remedies
that would otherwise be available to enforce employees‟ statutory rights [e.g., one-way
fee-shifting and undertaking requirements], and . . . imposes costs exceeding those that
the employee would normally incur [e.g., costs of counsel].” We agree.

10

We requested supplemental briefing on the unconscionability issue, which was not

argued in the courts below. Sonic contends that we should not address unconscionability,
principally arguing that it was not afforded the opportunity to produce evidence regarding
unconscionability. (See Civ. Code, § 1670.5, subd. (b).) It is true, as has been stated,
that “[u]nconscionability is a question of law for the court. [Citations.] Nonetheless,
factual issues may bear on that question.” (Wayne v. Staples, Inc. (2006) 135
Cal.App.4th 466, 480.) When, however, there is no dispute as to the evidence, the court
may resolve the unconscionability issue in the context of a petition to compel arbitration
without resort to such a hearing and testimony. (See, e.g., Armendariz, supra, 24 Cal.4th
at pp. 115-121.) Here, the only issue that Sonic specifically cites as requiring further
factual or evidentiary exploration is that of surprise. As will appear below, however, we
do not rely on the element of surprise in our procedural unconscionability analysis, but on
the uncontested fact that the agreement was one of adhesion and imposed as a condition
of employment.

Moreover, Moreno did raise the unconscionability issue below as an affirmative

defense to the petition to compel arbitration. Although as a matter of general policy we
do not decide issues not raised in the Court of Appeal (Cal. Rules of Court, rule
8.500(c)(1)), we may depart from that policy when an important countervailing purpose
would be served. (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1,
6-7 & fn. 2 [this court has the discretion to consider important issues of law not argued by
the parties below].) Here, as explained below, the issues of public policy and
unconscionability are closely linked, and a decision on both issues will serve to clarify
the scope of our holding, as well as more fully explain our conclusion that a rule
generally prohibiting a Berman waiver as a condition of employment is not preempted by
the FAA.

23

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2003) 328 F.3d 1165, 1170, and authorities cited therein.) As that formulation implicitly

recognizes, the doctrine of unconscionability has both a procedural and a substantive

element, the former focusing on oppression or surprise due to unequal bargaining power,

the latter on overly harsh or one-sided results. “The procedural element of an

unconscionable contract generally takes the form of a contract of adhesion,” ‟ ” 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. (Little, supra,

29 Cal.4th at p. 1071.)

“Substantively unconscionable terms can take various forms, but may generally be

described as unfairly one-sided. One such form, as in Armendariz, is the arbitration

agreement‟s lack of a „ “modicum of bilaterality,” ‟ wherein the employee‟s claims

against the employer, but not the employer‟s claims against the employee, are subject to

arbitration. (Armendariz, supra, 24 Cal.4th at p. 119.) Another kind of substantively

unconscionable provision occurs when the party imposing arbitration mandates a post-

arbitration proceeding, either judicial or arbitral, wholly or largely to its benefit at the

expense of the party on which the arbitration is imposed.” (Little, supra, 29 Cal.4th at

pp. 1071-1072.) In determining unconscionability, our inquiry is into whether a contract

provision was “unconscionable at the time it was made.” (Civ. Code, § 1670.5, subd.

(a).)

Here, the arbitration agreement was a contract of adhesion indisputably imposed

as a condition of employment. Moreover, we have recognized that contract terms

imposed as a condition of employment are particularly prone to procedural

unconscionability. “[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, supra, 24 Cal.4th at p. 115.) Moreover, many

24

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employees may not give careful scrutiny to routine personnel documents that employers

ask them to sign. (See Gentry, supra, 42 Cal.4th at p. 471.)

Furthermore, for reasons suggested above, significant substantive

unconscionability is also present. As explained, Berman hearing and posthearing

procedures were designed to provide wage claimants with meritorious claims unique

protections that lower the costs and risks of pursuing such claims, leveling a playing field

that generally favors employers with greater resources and bargaining power. Requiring

employees to forgo these protections as a condition of employment can only benefit the

employer at the expense of the employee. Nor can we say, as also explained, that the

benefits the employee gains from arbitration compensates for what he or she loses by

forgoing the option of a Berman hearing.

In sum, rather than being justified by “legitimate commercial needs” (see

Armendariz, supra, 24 Cal.4th at p. 117), the main purpose of the Berman waiver appears

to be for employers to gain an advantage in the dispute resolution process by eliminating

the statutory advantages accorded to employees designed to make that process fairer and

more efficient. We conclude the waiver is markedly one-sided and therefore

substantively unconscionable. This substantive unconscionability, together with the

significant element of procedural unconscionability, leads to the conclusion that the

Berman waiver in the arbitration agreeement at issue here is unconscionable.

We note that the public policy and unconscionability defenses, albeit similar in

some ways, are different in important respects. A public policy defense is concerned

with the relationship of the contract to society as a whole, and targets contractual

provisions that undermine a clear public policy, such as an unwaivable statutory right

designed to accomplish a public purpose. (See Armendariz, supra, 24 Cal.4th at

pp. 100-101.) Unconscionability is concerned with the relationship between the

contracting parties and one-sided terms (id. at p. 114), such that consent in any real sense

appears to be lacking. Contracts can be contrary to public policy but not unconscionable

25

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(see Board of Education v. Round Valley Teachers Assn (1996) 13 Cal.4th 269, 287-288

[provision in a negotiated collective bargaining contract conflicts with a statute and is

therefore unenforceable]) and vice versa (see A & M Produce Co. v. FMC Corp. (1982)

135 Cal.App.3d 473, 493 [warranty disclaimer and exclusion of consequential damages

in particular commercial contract unconscionable].) But there is sometimes an overlap

between these two defenses to contract enforcement.

Such is the case here. On the one hand, to permit employers to require employees

to waive the right to a Berman hearing as a condition of employment would gravely

undermine the public policy behind the Berman hearing statutes, as discussed above. On

the other hand, because the Berman hearing statutes accomplish their public policy goal

of ensuring prompt payment of wages by according employees special advantages in their

effort to obtain such payment, a provision in a contract of adhesion that requires the

employee to surrender such advantages as a condition of employment is oppressive and

one-sided, and therefore unconscionable.11

D. Our Holding Is Not Preempted by the FAA

Sonic contends that a holding that a predispute waiver of a Berman hearing in an

arbitration agreement is contrary to public policy and unconscionable would be

preempted by the FAA. To address this claim, we begin by reviewing some basic


11

The dissent argues that the agreement “viewed from a broader perspective is not

unconscionable” because the agreement binds both parties to arbitrate all disputes,
subject to certain exceptions. (Dis. opn., post, at pp. 28-29.) The argument is off the
mark. It is true that an arbitration agreement may be unconscionable when it requires
“arbitration only for the claims of the weaker party but a choice of forums for the claims
of the stronger party.” (Armendariz, supra, 24 Cal.4th at p. 119.) But that is not the only
form unconscionability may take. In the present case, as discussed, the Berman statutes
were part of a public policy designed to advantage employees seeking wages owed. This
arbitration agreement requires the employee to forgo these advantages, without seeking
any comparable sacrifice from the employer. To contend that this agreement is simply a
bilateral agreement to arbitrate ignores that important reality.

26

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principles pertaining to the enforcement of arbitration agreements and FAA preemption.

“ ‟California law, like federal law, favors enforcement of valid arbitration agreements.

[Citation.] . . . Thus, under both federal and California law, arbitration agreements are

valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity

for the revocation of any contract.‟ (Armendariz, supra, 24 Cal.4th at pp. 97-98; see also

9 U.S.C. § 2; Code Civ. Proc., § 1281.) In other words, although under federal and

California law, arbitration agreements are enforced „in accordance with their terms‟ (Volt

Info. Sciences v. Leland Stanford Jr. U. (1989) 489 U.S. 468 (Volt)), such enforcement is

limited by certain general contract principles „ ”at law or in equity for the revocation of

any contract.” ‟ ” (Discover Bank v. Superior Court (2005) 36 Cal.4th 148, 163

(Discover Bank).) Thus, “under section 2 of the FAA, a state court may refuse to enforce

an arbitration agreement based on „generally applicable contract defenses, such as fraud,

duress, or unconscionability.‟ ” (Little, supra, 29 Cal.4th at p. 1079, quoting Doctor’s

Associates, Inc. v. Casarotto (1996) 517 U.S. 681, 687.)12

The doctrine of unconscionability cannot be used, however, in a way that

discriminates against arbitration agreements. In Perry v. Thomas (1987) 482 U.S. 483

(Perry), for example, the court held that section 229, which provides in pertinent part that


12

We note that in general, the question whether an arbitration agreement is

unconscionable or contrary to public policy is for the court, not the arbitrator, to decide.
(Discover Bank v. Superior Court, supra, 36 Cal.4th at p. 171.) Recently, the Supreme
Court held, in a case brought in federal court, that the question of unconscionability of an
arbitration agreement may be for the arbitrator to decide when the agreement has clearly
and unmistakably delegated that issue to the arbitrator. (Rent-A-Center v. Jackson (2010)
__ U.S. __ [130 S.Ct. 2772, 2778-2779].) Sonic has not contended that the arbitration
agreement delegates responsibility to the arbitrator to decide questions of the agreement‟s
unconscionability or violation of public policy. We thus have no need to decide whether
Rent-A- Center‟s five-to-four decision applies to actions brought in state court (see
Preston, supra, 552 U.S. 346, 363 (dis. opn. of Thomas, J.) [reaffirming the view of
Justice Thomas that the FAA does not apply to state court proceedings]), nor whether we
would adopt a similar rule as a matter of state law.

27

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“[a]ctions to enforce the provisions of this article for the collection of due and unpaid

wages claimed by an individual may be maintained without regard to the existence of any

private agreement to arbitrate,” was preempted by the FAA in all cases in which the FAA

applies. The court concluded that the requirement under section 229 “that litigants be

provided a judicial forum for resolving wage disputes” stood in direct conflict with the

FAA. (Perry, supra, at p. 491.) The Perry court further made clear that the doctrine of

unconscionability could not be used to save section 229 from FAA preemption. “[S]tate

law, whether of legislative or judicial origin, is applicable if that law arose to govern

issues concerning the validity, revocability, and enforceability of contracts generally. A

state-law principle that takes its meaning precisely from the fact that a contract to

arbitrate is at issue does not comport with this requirement of § 2. [Citations.] A court

may not, then, in assessing the rights of litigants to enforce an arbitration agreement,

construe that agreement in a manner different from that in which it otherwise construes

nonarbitration agreements under state law. Nor may a court rely on the uniqueness of an

agreement to arbitrate as a basis for a state-law holding that enforcement would be

unconscionable, for this would enable the court to effect what we hold today the state

legislature cannot.” (Perry, supra, 482 U.S. at pp. 492-493, fn. 9.)

Here, our conclusion that Berman waivers are contrary to public policy and

unconscionable does not discriminate against arbitration agreements. We neither

construe the arbitration agreement “in a manner different from that in which [we would]

construe[] nonarbitration agreements” nor do we “rely on the uniqueness of an agreement

to arbitrate as a basis for a state-law holding that enforcement would be unconscionable.”

(Perry, supra, 482 U.S. at p. 492, fn. 9.) Rather, our conclusion that a Berman waiver is

contrary to public policy and unconscionable is equally applicable whether the waiver

appears within an arbitration agreement or independent of arbitration. Our holding does

not disfavor arbitration agreements, but neither does it permit them “ „to harbor terms,

28

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conditions and practices‟ that undermine public policy.” (Discover Bank, supra, 36

Cal.4th at p. 166.)

In arguing that the FAA preempts a state law rule precluding Berman waivers,

Sonic relies in particular on Preston, supra, 552 U.S. 346, and a careful examination of

that decision is therefore necessary. In Preston, the United States Supreme Court

considered a California case arising from a dispute between a television personality,

Judge Alex Ferrer, and Attorney Arnold Preston regarding fees allegedly owed the latter.

The agreement between them called for dispute resolution via arbitration. Ferrer claimed,

however, that the attorney had been acting as a talent agent without a license in violation

of the Talent Agencies Act (TAA; § 1700 et seq.), and that therefore under the terms of

that statute the contract was invalid and unenforceable. (Preston, supra, 552 U.S. at p.

350.) Ferrer sought to adjudicate the matter in the first instance before the Labor

Commissioner, with whom the TAA vests primary jurisdiction to adjudicate disputes

arising under that statute, permitting an appeal within 10 days to the superior court for a

de novo hearing. (§ 1700.44.) Preston sought instead to compel arbitration, but the trial

court denied the petition on the ground that the Labor Commissioner had primary

jurisdiction, and the Court of Appeal affirmed. After we denied review, the United States

Supreme Court granted Preston‟s petition for a writ of certiorari. (Preston, supra, 552

U.S. at pp. 350-351.)

The Supreme Court reversed, holding that the TAA‟s grant of primary jurisdiction

to the Labor Commissioner, inasmuch as it thwarted the arbitration agreement, violated

the FAA. Section 2 of the FAA, which requires enforcement of arbitration agreements

“save upon such grounds as exist at law or in equity for the revocation of any contract” (9

U.S.C. § 2) “ „declare[s] a national policy favoring arbitration‟ of claims that parties

contract to settle in that manner. Southland Corp. [v. Keating (1984)] 465 U.S. [1], 10.

That national policy, we held in Southland, „appli[es] in state as well as federal courts‟

and „foreclose[s] state legislative attempts to undercut the enforceability of arbitration

29

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agreements.‟ Id., at 16. The FAA‟s displacement of conflicting state law is „now well-

established [citations] . . . .‟ ” (Preston, supra, 552 U.S. at p. 353.)

“A recurring question under § 2 is who should decide whether „grounds . . . exist

at law or in equity‟ to invalidate an arbitration agreement. In Prima Paint Corp. v. Flood

& Conklin Mfg. Co., 388 U.S. 395, 403-404 (1967), we held that attacks on the validity

of an entire contract, as distinct from attacks aimed at the arbitration clause, are within

the arbitrator‟s ken. [¶] The litigation in Prima Paint originated in federal court, but the

same rule, we held in Buckeye [Check Cashing, Inc. v. Cardegna (2006) 546 U.S. 440

(Buckeye)], applies in state court. 546 U.S., at 447-448. The plaintiffs in Buckeye

alleged that the contracts they signed, which contained arbitration clauses, were illegal

under state law and void ab initio. Id., at 443, 126 S.Ct. 1204. . . . [W]e held that the

plaintiffs‟ challenge was within the province of the arbitrator to decide. See 546 U.S., at

446, 126 S.Ct. 1204.” (Preston, supra, 552 U.S. at p. 353.)

The Preston court then concluded that “Buckeye largely, if not entirely, resolves

the dispute before us. The contract between Preston and Ferrer clearly „evidenc[ed] a

transaction involving commerce,‟ 9 U.S.C. § 2, and Ferrer has never disputed that the

written arbitration provision in the contract falls within the purview of § 2. Moreover,

Ferrer sought invalidation of the contract as a whole. In the proceedings below, he made

no discrete challenge to the validity of the arbitration clause. [Citation.] Ferrer thus

urged the Labor Commissioner and California courts to override the contract‟s arbitration

clause on a ground that Buckeye requires the arbitrator to decide in the first instance.”

(Preston, supra, 552 U.S. at p. 354, fn. omitted, italics added.)

The Supreme Court then rejected Ferrer‟s argument that the case was

distinguishable from Buckeye because “the TAA merely requires exhaustion of

administrative remedies before the parties proceed to arbitration.” (Preston, supra, 552

U.S. at p. 354.) “The TAA permits arbitration in lieu of proceeding before the Labor

Commissioner if an arbitration provision „in a contract between a talent agency and [an

30

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artist]‟ both „provides for reasonable notice to the Labor Commissioner of the time and

place of all arbitration hearings‟ and gives the Commissioner „the right to attend all

arbitration hearings.‟ § 1700.45. This prescription demonstrates that there is no inherent

conflict between the TAA and arbitration as a dispute resolution mechanism. But §

1700.45 was of no utility to Preston. He has consistently maintained that he is not a

talent agent as that term is defined in § 1700.4(a), but is, instead, a personal manager not

subject to the TAA‟s regulatory regime. [Citation.] To invoke § 1700.45, Preston would

have been required to concede a point fatal to his claim for compensation — i.e., that he

is a talent agent, albeit an unlicensed one — and to have drafted his contract in

compliance with a statute that he maintains is inapplicable.

“Procedural prescriptions of the TAA thus conflict with the FAA‟s dispute

resolution regime in two basic respects: First, the TAA, in § 1700.44(a), grants the Labor

Commissioner exclusive jurisdiction to decide an issue that the parties agreed to arbitrate,

see Buckeye, 546 U.S., at 446; second, the TAA, in § 1700.45, imposes prerequisites to

enforcement of an arbitration agreement that are not applicable to contracts generally, see

Doctor’s Associates, Inc. v. Casarotto, 517 U.S. at 687.” (Preston, supra, 552 U.S. at

pp. 355-356.)

The Supreme Court further rejected Ferrer‟s contention “that the TAA is

nevertheless compatible with the FAA because § 1700.44(a) merely postpones arbitration

until after the Labor Commissioner has exercised her primary jurisdiction” and that after

that proceeding “either party could move to compel arbitration under Cal.Civ.Proc.Code

Ann. § 1281.2 (West 2007), and thereby obtain an arbitrator‟s determination prior to

judicial review.” (Preston, supra, 552 U.S. at p. 356.) The court noted that this position

was inconsistent with the position Ferrer took below, and with a literal reading of the

statute, that de novo review may be sought in superior court, not with an arbitrator.

(Preston, supra, 552 U.S. at pp. 356-357.) But the court announced a broader holding:

“A prime objective of an agreement to arbitrate is to achieve „streamlined proceedings

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and expeditious results.‟ [Citations.] That objective would be frustrated even if Preston

could compel arbitration in lieu of de novo Superior Court review. Requiring initial

reference of the parties‟ dispute to the Labor Commissioner would, at the least, hinder

speedy resolution of the controversy.” (Preston, supra, 552 U.S. at pp. 357-358.)

The Preston court distinguished the case before it from EEOC v. Waffle House,

Inc. (2002) 534 U.S. 279. In the latter case, the court had held that an arbitration

agreement between an employer and an employee did not preclude the Equal

Employment Opportunity Commission (EEOC) from exercising the independent

prosecutorial authority granted it by Congress to pursue in court individual relief, or as

the court phrased it, “victim-specific judicial relief,” such as backpay, reinstatement, and

damages, on behalf of employees subject to arbitration agreements. (Id. at p. 282; see id.,

at p. 287.) The EEOC was not a party to the arbitration agreements, and it exercises its

prosecutorial duties without the consent or supervision of the employees on whose behalf

it brings its action. (Id. at p. 291.) As the Preston court stated, Waffle House was

distinguishable because “in proceedings under § 1700.44(a), the Labor Commissioner

functions not as an advocate advancing a cause before a tribunal authorized to find the

facts and apply the law; instead, the Commissioner serves as an impartial arbiter. That

role is just what the FAA-governed agreement between Ferrer and Preston reserves for

the arbitrator. In contrast, in Waffle House . . . , the Court addressed the role of an

agency, not as adjudicator but as prosecutor, pursuing an enforcement action in its own

name or reviewing a discrimination charge to determine whether to initiate judicial

proceedings.” (Preston, supra, 552 U.S. at p. 359.)

The Court of Appeal below, treating the federal preemption issue as a threshold

matter, rejected Sonic‟s argument that Preston governs this case: “As the Supreme Court

in Preston explained: (1) the artist was seeking to invalidate the entire contract based on

the personal manager‟s alleged violations of the TAA, which is an issue that Buckeye

requires the arbitrator to decide in the first instance; (2) the validity and substantive rights

32

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of the arbitration clause were not in dispute; and (3) the only issue was whether the fee

dispute should be resolved in an arbitral or administrative forum. The parties did not

litigate in Preston whether there were any generally applicable contract defenses, such as

fraud, duress, or unconscionability, which would invalidate or restrict the arbitration

agreement.” The court then concluded that because the issue in the case before it was the

unconscionability of the arbitration clause, Preston was not dispositive.

We agree with the Court of Appeal that Preston is distinguishable. In this case,

unlike in Buckeye and in Preston, the challenge is to a portion of the arbitration

agreement — the Berman waiver — as contrary to public policy and unconscionable,

rather than to the contract as a whole. Buckeye therefore does not apply. These cases are

distinguished not merely because of the nature of the litigants‟ challenges, but also

because of the fundamental differences between the two statutory regimes at issue. The

statute in Preston, the TAA, merely lodges primary jurisdiction in the Labor

Commissioner, and does not come with the same type of statutory protections as are

found in the Berman hearing and posthearing procedures discussed above.13 In fact,

notwithstanding Ferrer‟s argument that those in his position would be deprived of the

Labor Commissioner‟s expertise (Preston, supra, 552 U.S. at p. 358), the Preston court

recognized that section 1700.45 explicitly authorizes predispute agreements that allow

parties to bypass the Labor Commissioner to resolve TAA issues through arbitration,

albeit with certain conditions that could not lawfully be applied in that case (Preston, at

p. 356). A predispute agreement that provides for such arbitration of TAA disputes,

therefore, cannot be unconscionable or contrary to public policy. This is in marked


13

Section 1700.44, subdivision (a) does require that a party wishing to stay the

Labor Commissioner‟s monetary award on appeal post a bond not exceeding twice the
amount of the judgment. This provision applies to whichever party to a TAA proceeding
seeks a stay, in contrast to section 98.2, subdivision (b), which imposes an undertaking
requirement exclusively on the employer.

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contrast to the Berman hearing statutes, which have no comparable provision authorizing

arbitration agreements that bypass the Labor Commissioner, and which we have

construed as not permitting such agreements as a condition of employment.

Sonic makes much of a paragraph in Preston that it argues supports its position.

As noted above, the court stated: “A prime objective of an agreement to arbitrate is to

achieve „streamlined proceedings and expeditious results.‟ [Citations.] That objective

would be frustrated even if Preston could compel arbitration in lieu of de novo Superior

Court review. Requiring initial reference of the parties‟ dispute to the Labor

Commissioner would, at the least, hinder speedy resolution of the controversy.”

(Preston, supra, 552 U.S. at pp. 357-358.)

This statement cannot be read, as Sonic urges, to mean that any state law

procedure that delays the commencement of arbitration is preempted by the FAA.

Rather, the Preston court‟s statement, read in context, is quite narrow. It merely affirms

that a violation of the Buckeye rule will not be excused if the administrative agency

displacing the arbitrator‟s jurisdiction does so only preliminarily and is subject to de novo

review in arbitration, because such displacement is not costless, but in fact would lead to

delay. (Preston, supra, 552 U.S. at pp. 357-358.) But here Buckeye does not apply,

because of Moreno‟s meritorious challenge to a provision in the arbitration agreement

itself. The above quoted statement explaining why the Buckeye rule applies

notwithstanding the fact that arbitration may be delayed rather than denied cannot

justifiably be expanded into a statement asserting that any time an arbitration is delayed

by application of a state statute, even when Buckeye does not apply, the statute must be

invalidated.

In arriving at this conclusion, we make clear that a state legislature or court cannot

insulate itself from an FAA preemption challenge merely by declaring that the waiver of

an administrative forum in an arbitration agreement is against public policy. (See Perry,

supra, 482 U.S. at p. 492, fn. 9.) A public policy based solely on the supposed

34

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superiority of an administrative forum over arbitration could no more survive FAA

preemption than could a policy based on the supposed superiority of a judicial forum.

(See Perry, at p. 492, fn. 9.) But neither do we understand the FAA to preempt a state‟s

authority to impose various preliminary proceedings that delay both the adjudication and

the arbitration of a cause of action in order to pursue important state interests. In the

FEHA, for example, before a civil action can be filed, a party must file a complaint with

the Department of Fair Employment and Housing and exhaust the administrative remedy.

(Gov. Code, §§ 12960, 12965; see Blum v. Superior Court (2006) 141 Cal.App.4th 418,

422.) The Supreme Court has never suggested that the FAA requires that these

preliminary proceedings be bypassed in order to go directly to arbitration. Indeed, under

our state‟s law, a statutory cause of action for employment discrimination under the

FEHA cannot succeed in court, nor presumably in an arbitration applying California law,

unless administrative remedies have been exhausted. (See Medix Ambulance Service,

Inc. v. Superior Court (2002) 97 Cal.App.4th 109, 115-118.) Exhaustion of these

administrative remedies may delay the commencement both of arbitration and litigation.

So, too, a state Legislature may, as it has done with the Berman hearings, advance

a certain public policy by offering certain classes of litigants the option of an informal,

nonbinding administrative hearing serving as a gateway to obtaining special protections

that enable the vindication of their claims. State law may also prescribe that this option is

not waivable as a condition of employment. We do not understand Preston to stand for

the proposition that this state public policy, which neither favors nor disfavors arbitration,

must be invalidated because it may result in some delay in the commencement of

arbitration. We do not believe that the fact the state has chosen to condition access to

special procedural protections on success at a nonbinding administrative hearing, rather

than, for example, on a preliminary administrative investigation, is significant from the

standpoint of FAA preemption. Nor do we believe the FAA requires a wage claimant to

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come to an arbitration stripped of the protections and advantages state law authorizes her

or him to have in court.14

We reach the same conclusion regarding Moreno‟s unconscionability defense.

Under both the CAA and the FAA, the validity and enforceability of an arbitration

agreement are based on the consent of the parties to that agreement. (See Stolt-Nielsen

S.A. v. AnimalFeeds International Corp. (2010) __ U.S. __ [130 S.Ct. 1758, 1774-1775];

Cable Connections, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1358.) As discussed

above, a provision of an arbitration agreement that is unconscionable lacks the

meaningful consent of one of the parties due to that party‟s actual lack of choice and the


14

The dissent, in arguing for preemption of the public policy defense, cites a number

of United States Supreme Court cases affirming the proposition that a state may not, in
the name of public policy and the supposed superiority of litigation over arbitration,
require the substitution of a judicial forum for an arbitral one. (See dis. opn., post, at pp.
17-26; see also Carter v. SSC Odin Operating Co., LLC (Ill. 2010) 927 N.E.2d 1207.)
No party to this litigation contests the truth of that proposition. But those cases do not
address the question before us: Whether a state may forbid a predispute waiver of access
to preliminary administrative proceedings designed to further public policy by giving
special advantages to a disadvantaged group, when that antiwaiver policy applies equally
to litigation and arbitration. Only Preston addresses the substitution of an administrative
forum for a judicial one, and only one paragraph in Preston considers the validity of an
administrative forum preliminary to an arbitral one; but as discussed above, the plaintiff
in Preston did not, nor could he have, raise legitimate public policy or unconscionability
defenses at issue here. “[I]t is axiomatic that cases are not authority for propositions not
considered.” (People v. Alvarez (2002) 27 Cal.4th 1161, 1176.) That axiom applies with
equal force to the one post-Preston case cited by the dissent that considers Berman
hearing waivers, Ruff v. Splice (Ill. App. Ct. 2010) 923 N.E.2d 1250. In that case, the
plaintiff, the former CEO of the defendant company, never raised public policy or
unconscionability defenses to arbitration, nor is it clear that he could have, but rather
argued primarily that the defendant had waived its right to arbitration. (Id. at p. 1253.)
Finally, the dissent is simply incorrect in asserting that two cases holding that certain
types of public injunctions are inarbitrable, Broughton v. Cigna Healthplans (1999) 21
Cal.4th 1066, Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal.4th 303 (cases in
which the author of the dissent also dissented) are overruled by Buckeye. (See dis. opn.,
post, at p. 24, fn. 5.) The latter case did not even remotely consider the arbitrability of
such injunctions.

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one-sided nature of the terms imposed, notwithstanding the outward trappings of consent.

Again, an unconscionability defense based simply on an employee having to relinquish a

judicial or administrative forum in favor of arbitration is precluded by the FAA. (See

Perry, supra, 482 U.S. at pp. 492-493, fn. 9.) But here, when an employee is compelled

as a condition of employment to forgo other important statutory advantages the

Legislature has afforded to vindicate wage claims without gaining any significant

offsetting advantages, we have no difficulty concluding that the lack of meaningful

consent in that situation places the employee‟s unconscionability claim beyond the scope

of FAA preemption.

In short, our holding invalidating Berman waivers neither falls within the purview

of Preston and Buckeye, nor relies on rules of contract law that particularly disfavor

arbitration, but rather is based on the generally applicable contract defenses of

unconscionability and violation of public policy. We therefore conclude our holding is

not preempted by the FAA.

III.

DISPOSITION

As noted, the superior court order stated that “until there has been the preliminary

non-binding hearing and decision by the Labor Commissioner, the arbitration provisions

of the employment contract are unenforceable, and any petition to compel arbitration is

premature and must be denied.” The judgment of the Court of Appeal is reversed and the

cause is remanded with directions to reinstate the superior court‟s order.

MORENO, J.

WE CONCUR: KENNARD, ACTING C. J.


WERDEGAR, J.

GEORGE, J.*

____________________________

*

Retired Chief Justice of California, assigned by the Chief Justice pursuant to

article VI, section 6 of the California Constitution.

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DISSENTING OPINION BY CHIN, J.

Both California and federal law strongly favor judicial enforcement of arbitration

agreements according to their terms. The majority‟s conclusion that the arbitration

agreement in this case is contrary to public policy — and therefore unenforceable — is

inconsistent with the state and federal policies favoring enforcement of arbitration

agreements and is inconsistent with decisions of both this court and the United States

Supreme Court. Moreover, because, as the United States Supreme Court recently held,

federal law — the Federal Arbitration Act (FAA) ( 9 U.S.C. § 1 et seq.) —

“supersede[s]” state laws that “lodg[e] primary jurisdiction” over a dispute the parties

have agreed to arbitrate in an “administrative” forum (Preston v. Ferrer (2008) 552 U.S.

346, 349-350 (Preston)), California‟s statutory scheme, as the majority construes it, is

preempted. I therefore disagree with the majority‟s conclusion.

I also do not join the majority‟s holding that the arbitration provision in this case is

unconscionable — and therefore unenforceable — insofar as it precludes the wage

claimant from requesting an administrative hearing — known as a “Berman hearing” —

before submitting his claim for vacation pay to arbitration. Procedurally, we should not

reach this issue, because the claimant did not pursue it in the trial court, in the Court of

Appeal, or in this court until we requested briefing on it. Substantively, the majority errs

by discounting the benefits to the employee of waiving the right to pursue a Berman

hearing. It also errs in focusing narrowly only on what it calls the “Berman waiver.”

(Maj. opn., ante, at p. 2.) In assessing substantive unconscionability, we should instead

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focus broadly on the purpose and benefits of the arbitration provision as a whole.

Viewed from this broader perspective, the arbitration provision is not unconscionable.

For these reasons, I dissent.

I. Factual Background.

Frank Moreno was an employee of Sonic-Calabasas A, Inc. (Sonic). In December

2006, after voluntarily ending his employment, Moreno filed a wage claim with the

Labor Commissioner pursuant to Labor Code section 98 et seq.1 seeking allegedly

unpaid “vacation wages” for 63 days at the rate of $441.29 per day, for a total of

$18,203.54. He also requested “additional wages accrued pursuant to Labor Code

Section 203 as a penalty.”

In February 2007, Sonic filed in the superior court a petition to compel arbitration

of Moreno‟s claim and to dismiss his pending administrative action. It relied on the

broad and comprehensive arbitration provision in an agreement Moreno had signed,

which provides in relevant part: “I . . . acknowledge that [Sonic] utilizes a system of

alternative dispute resolution that involves binding arbitration to resolve all disputes that

may arise out of the employment context. Because of the mutual benefits (such as

reduced expense and increased efficiency) which private binding arbitration can provide

both [Sonic] and myself, both [Sonic] and I agree that any claim, dispute, and/or

controversy (including, but not limited to, any claims of discrimination and harassment

. . .) that either I or [Sonic] . . . may have against the other which would otherwise require

or allow resort to any court or other governmental dispute resolution forum arising from,

related to, or having any relationship or connection whatsoever with my seeking

employment with, employment by, or other association with [Sonic], whether based on

tort, contract, statutory, or equitable law, or otherwise, (with the sole exception of claims


1

All further unlabeled statutory references are to the Labor Code.

2

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arising under the National Labor Relations Act . . . , claims for medical and disability

benefits under the California Workers Compensation Act, and Employment Development

Department claims) shall be submitted to and determined exclusively by binding

arbitration under the Federal Arbitration Act, in conformity with the procedures of the

California Arbitration Act (Cal. Code Civ. Proc. sec. 1280 et seq., including section

1283.05 and all of the Act‟s other mandatory and permissive rights to discovery).

However, nothing herein shall prevent me from filing and pursuing administrative

proceedings only before the California Department of Fair Employment and Housing, or

the U.S. Equal Opportunity Commission.”

Moreno and the Labor Commissioner, who intervened on Moreno‟s behalf,

opposed Sonic‟s motion to compel. They argued that, insofar as the arbitration

agreement may be interpreted to preclude Moreno from pursuing a Berman hearing, it

substantially burdens his ability to vindicate his right to vacation pay and, therefore, is

unenforceable as against public policy.

The superior court denied the petition to compel arbitration, finding that the

arbitration provision violates public policy insofar as it waives Moreno‟s right to pursue a

Berman hearing. The Court of Appeal reversed, finding that this waiver does not

substantially burden Moreno‟s ability to vindicate his right to vacation pay and, therefore,

is not unenforceable as against public policy.

II. Enforcement of the Arbitration Provision Does Not Violate California’s

Public Policy.

Through enactment of a comprehensive statutory scheme regulating private

arbitration, the Legislature “has expressed a „strong public policy in favor of arbitration

as a speedy and relatively inexpensive means of dispute resolution.‟ [Citations.]”

(Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9 (Moncharsh).) “The policy of

[California‟s] law in recognizing arbitration agreements and in providing by statute for

3

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their enforcement is to encourage persons who wish to avoid delays incident to a civil

action to obtain an adjustment of their differences by a tribunal of their own choosing.”

(Utah Const. Co. v. Western Pac. Ry. Co. (1916) 174 Cal. 156, 159.) Thus, California law

establishes “a presumption in favor of arbitrability.” (Engalla v. Permanente Medical

Group, Inc. (1997) 15 Cal.4th 951, 971 (Engalla).)

The clearest expression of California‟s policy favoring arbitration appears in Code

of Civil Procedure section 1281, which declares that “[a] written agreement to submit to

arbitration an existing controversy or a controversy thereafter arising is valid, enforceable

and irrevocable, save upon such grounds as exist for the revocation of any contract.”

This section establishes the “fundamental policy” of California‟s arbitration scheme:

“that arbitration agreements will be enforced in accordance with their terms.”

(Vandenberg v. Superior Court (1999) 21 Cal.4th 815, 836, fn. 10.) To implement this

policy, Code of Civil Procedure section 1281.2 directs that, on petition, a court “shall

order” arbitration “if it determines that an agreement to arbitrate the controversy exists,

unless it determines that” one of only three specified exceptions applies: (1) the petitioner

has waived the right to compel arbitration; (2) grounds exist for revoking the agreement;

or (3) a party to the agreement is also a party to a pending legal proceeding with a third

party that arises out of the same transaction, and a possibility exists of conflicting rulings

on common legal or factual issues.

In Discover Bank v. Superior Court (2005) 36 Cal.4th 148, 171, the majority

indicated that one ground for revoking an arbitration agreement is that the agreement is

“contrary to public policy.” However, because public policy requires and encourages the

making of contracts upon all valid and lawful considerations, and because the courts‟

power to declare a contract void as against public policy is “ „very delicate and

undefined,‟ ” courts should exercise this power “ „only in cases free from doubt,‟ ” where

“it is entirely plain” that the contract violates sound public policy. (Stephens v. Southern

Pacific Co. (1895) 109 Cal. 86, 89 (Stephens).) This general principle of contract law

4

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applies with added force where an arbitration agreement is at issue, given California‟s

public policy favoring arbitration. Because arbitration is, under California law, “a highly

favored means of settling [employment] disputes,” courts must “ „indulge every

intendment to give effect to such proceedings‟ ” and “should endeavor to reach a result

[that] comports with the „strong public policy‟ favoring arbitration.” (Doers v. Golden

Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 189 (Doers).) The party challenging the

contractual arbitration provision bears the burden of showing that its enforcement would

violate “ „settled public policy.‟ ” (Stephens, supra, at p. 90.)

In several relatively recent decisions, we have discussed the scope of the public

policy exception to the statutory rule that arbitration agreements are enforceable

according to their terms. In Armendariz v. Foundation Health Psychcare Services, Inc.

(2000) 24 Cal.4th 83, 91 (Armendariz), we considered the validity of an agreement,

imposed by the employer as a condition of employment, that required an employee to

arbitrate a discrimination claim brought under the California Fair Employment and

Housing Act (FEHA) (Gov. Code, § 12900 et seq.). We first found that, because “the

statutory rights established by the FEHA are „for a public reason‟ ” (Armendariz, supra,

at p. 100), “FEHA rights are unwaivable” (id., at p. 112), and a mandatory arbitration

agreement “cannot be made to serve as a vehicle for [their] waiver” (id., at p. 101). We

then held that such an agreement is valid and enforceable “if the arbitration permits an

employee to vindicate his or her statutory rights. . . . [I]n order for such vindication to

occur, the arbitration must meet certain minimum requirements, including neutrality of

the arbitrator, the provision of adequate discovery, a written decision that will permit a

limited form of judicial review, and limitations on the costs of arbitration.” (Id. at pp. 90-

91.)

We next took up the issue in Gentry v. Superior Court (2007) 42 Cal.4th 443, 450

(Gentry), which involved the validity of a predispute arbitration agreement that precluded

class arbitration of employees‟ statutory claims for overtime pay. In a closely divided

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decision, a bare majority of this court held that, because the statutory right to overtime

pay fosters the public health and welfare and is therefore unwaivable, a class arbitration

waiver is unenforceable if it significantly and substantially burdens the ability of

employees to vindicate their rights to overtime pay by placing serious and formidable

obstacles in the way of prosecuting claims for such pay (id., at pp. 450, 463-466).

Applying the framework of Armendariz and Gentry, the Court of Appeal in this

case first considered whether the right to vacation pay is an unwaivable statutory right.

Concluding that it is, the court then considered whether arbitration would significantly

impair Moreno‟s ability to vindicate this right. Finding nothing in the record to indicate

that it would, the Court of Appeal held that the arbitration provision is enforceable.

The Court of Appeal correctly applied Armendariz and Gentry. As the majority

observes, “ „[t]he Berman hearing procedure is designed to provide a speedy, informal,

and affordable method of resolving wage claims.‟ ” (Maj. opn., ante, at p. 6.)

Arbitration is similarly designed; our public policy favors arbitration precisely because it

is a speedy, informal, and relatively inexpensive means of dispute resolution. (Broughton

v. Cigna Healthplans (1999) 21 Cal.4th 1066, 1080 (Broughton); Moncharsh, supra, 3

Cal.4th at p. 9.) It is true, as the majority explains, that a Berman hearing may offer some

employees certain procedural advantages that may, in a given case, make it somewhat

easier to recover unpaid vacation wages. (Maj. opn., ante, at pp. 16-18.) But that

circumstance does not establish that arbitration according to the terms of arbitration

agreements would not “permit[]”employees “to vindicate” their statutory right to vacation

pay — which is the relevant inquiry under Armendariz, supra, 24 Cal.4th at page 90 —

or would significantly and substantially burden their ability to vindicate that right by

placing serious and formidable obstacles in the way of prosecuting their claims for

overtime pay — which appears to be the inquiry under the Gentry majority‟s

reformulation of Armendariz. (Gentry, supra, 42 Cal.4th at pp. 450, 463-466.) Because

California‟s public policy favoring arbitration requires us to “ „indulge every intendment

6

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to give effect to‟ ” an arbitration provision (Doers, supra, 23 Cal.3d at p. 189), and

because we should not declare a contract to be void as against public policy unless that

conclusion is “ „free from doubt‟ ” and “entirely plain” (Stephens, supra, 109 Cal. at p.

89), that some claimants might be somewhat better off with a Berman hearing does not

justify a holding that a predispute waiver of the right to request a Berman hearing is void

as against public policy.2

There are several indications that the Legislature agrees with this conclusion. To

begin with, nothing in the language of the statutes setting forth the Berman procedures

(the Berman statutes) even hints that those procedures are nonwaivable or that an

employee may not agree to arbitrate a claim. Moreover, under the statutes, there is, in

fact, no right to a Berman hearing; there is only a right to file a complaint requesting a

Berman hearing. As the majority observes, in response to the filing of such a complaint,

the Labor Commissioner has three options: (1) hold a Berman hearing; (2) prosecute a

civil action; or (3) take no action on the complaint. (Maj. opn., ante, at p. 5.) The

benefits of a Berman hearing are potentially available only if the Labor Commissioner

chooses the first option. Finally, as the majority also observes, an employee may choose

to skip the administrative procedure entirely and go directly to court. (Maj. opn., ante, at

p. 5.) The Legislature‟s failure to make a Berman hearing mandatory and the absence of

any language prohibiting waiver suggest that, in the Legislature‟s view, an employee may


2

Moreover, upon examination, the potential procedural advantages of a Berman

hearing are not as great as the majority indicates. Ironically, what the majority views as a
vice of the arbitration agreement here at issue — the provision for discovery (maj. opn.,
ante, at p. 16) — we held in Armendariz to be a virtue — indeed a requirement — of a
valid and enforceable arbitration agreement. (Armendariz, supra, 24 Cal.4th at pp. 90-
91.) Also, the holding of a Berman hearing may actually hinder an employee‟s ability to
vindicate his or her right to vacation pay; the Berman statutes discourage employees who
lose at Berman hearings from seeking judicial review by providing that they must, if
unsuccessful on appeal, pay their employers‟ costs and attorney‟s fees. (§ 98.2, subd.
(c).)

7

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adequately vindicate the statutory right to vacation pay in an alternative forum, such as

arbitration. I see no reason to reject the Legislature‟s view.

Notably, the majority does not contend otherwise. It does not assert that requiring

Moreno to arbitrate according to his agreement would either eliminate or substantially

burden his ability to vindicate his right to vacation pay. In fact, according to the

majority, notwithstanding Armendariz and Gentry, that is not even the relevant inquiry.

Instead, the majority asserts, “the question [here] is whether [an] employee‟s statutory

right to seek a Berman hearing, with all the possible protections that follow from it, is

itself an unwaivable right that an employee cannot be compelled to relinquish as a

condition of employment.” (Maj. opn., ante, at p. 14.) The majority then concludes that

this right is unwaivable (ibid.), reasoning, “permitting employers to require employees, as

a condition of employment, to waive their right to a Berman hearing would seriously

undermine the efficacy of the Berman hearing statutes and hence thwart the public

purpose behind the statutes” (id., at pp. 15-16).

Initially, I note that the majority‟s formulation of the issue here is completely at

odds with Moreno‟s. As he did in the trial court and the Court of Appeal, Moreno has

consistently argued in this court that the arbitration agreement is against public policy —

and thus unenforceable — because arbitration lacks some of the procedural advantages

that may come with a Berman hearing and therefore “would drastically undercut his

ability to vindicate” his nonwaivable, statutory right to vacation pay. Indeed, according

to Moreno, analyzing whether the alleged benefits of a Berman hearing “are substantive,

unwaivable rights in their own” — which is precisely what the majority does —

“confuses what it is that is unwaivable — the underlying statutory right to payment of

accrued vacation wages upon separation of employment — with the remedial tools that

flow from the Labor Commissioner‟s wage adjudication process.” Thus, the majority‟s

analysis will, no doubt, come as a surprise to the parties.

8

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Substantively, as to whether an employee‟s statutory right to request a Berman

hearing is itself waivable, irrespective of an employee‟s ability to vindicate his or her

right to vacation pay in arbitration, the “established rule” in California is that “rights

conferred by statute may be waived unless specific statutory provisions prohibit waiver.”

(Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1049, fn. 4 (Bickel).) “As we have

recognized for over a century, the law „will not compel a man to insist upon any benefit

or advantage secured to him individually.‟ [Citation.] Accordingly, a party may waive

compliance with statutory conditions intended for his or her benefit, so long as the

Legislature has not made those conditions mandatory. [Citation.]” (Sharon S. v.

Superior Court (2003) 31 Cal.4th 417, 426-427 (Sharon S.).) Thus, under the majority‟s

approach, the starting point for the inquiry should be “whether there is any [statutory]

language . . . prohibiting a waiver” of an employee‟s right to request a Berman hearing.

(Bickel, supra, at p. 1049.)

Here, the relevant statutes contain no language even hinting that the right to

request a Berman hearing is unwaivable or that the holding of a Berman hearing is

mandatory. Indeed, by allowing employees to skip the administrative process entirely

and go directly to court, the statutory language suggests just the opposite, i.e., that

employees may waive their right to request a Berman hearing. Moreover, nothing in the

statutory language indicates that an employee‟s ability to waive this right exists only after

a dispute has arisen. In short, the statutory language offers no support for the majority‟s

conclusion. Nor does anything in the relevant legislative history support the majority‟s

view.

Again, the majority does not assert otherwise. Instead, in concluding that the right

to request a Berman hearing is unwaivable, the majority invokes the principle that a law

established for a public reason may not be contravened by a private act or agreement.

(Maj. opn., ante, at pp. 14-16.)

9

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For several reasons, the majority‟s analysis is unpersuasive. First, given that the

Legislature has already established a public policy of allowing waiver — by not making a

Berman hearing mandatory and by allowing employees to go directly to court without

requesting a Berman hearing — it seems inappropriate for this court to adopt a contrary

view of public policy. Second, as the court‟s opinion in Bickel explained, “[s]ome public

benefit is . . . inherent in most legislation.” (Bickel, supra, 16 Cal.4th at p. 1049.) Thus,

“[t]he pertinent inquiry” under the principle the majority invokes “is not whether the law

has any public benefit, but whether that benefit is merely incidental to the legislation‟s

primary purpose.” (Ibid., italics added.) Unquestionably, the primary purpose of the

Berman statutes is to assist the individual employee in recovering unpaid wages.

Although the public may benefit from such recovery, that benefit is merely incidental to

the statutes‟ primary purpose. Moreover, because, as I have explained, arbitration would

enable Moreno to vindicate his right to vacation pay, waiver of his right to request a

Berman hearing would not “ „seriously compromise any public purpose‟ ” the statutes

were “ „intended to serve‟ [citation].” (Sharon S., supra, 31 Cal.4th at p. 426.)

Therefore, the principle on which the majority relies does not apply here to preclude

employees, by agreeing to arbitration, from waiving their right to request a Berman

hearing.

This conclusion is consistent with analogous authority from both this court and the

United States Supreme Court. In Mitsubishi Motors v. Soler Chrysler-Plymouth (1985)
473 U.S. 614, 640 (Mitsubishi Motors), the high court held that a federal antitrust claim is

arbitrable under an arbitration clause in an agreement embodying an international

commercial transaction. A contrary result, the court explained, could not be justified by

“the fundamental importance to American democratic capitalism of the regime of the

antitrust laws. [Citations.]” (Id. at p. 634.) Although acknowledging that an antitrust

claim is not merely a private matter, that the antitrust laws are designed to promote the

national interest in a competitive economy, that an antitrust plaintiff acts as a private

10

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attorney general who protects the public‟s interest, and that the treble damages provision

of the antitrust law is a chief tool in the antitrust enforcement scheme, the court

explained: “The [public] importance of the private damages remedy, however, does not

compel the conclusion that it may not be sought outside an American court.

Notwithstanding its important incidental policing function, the treble-damages cause of

action . . . seeks primarily to enable an injured competitor to gain compensation for that

injury. (Id. at p. 635) “And, of course, the antitrust cause of action remains at all times

under the control of the individual litigant: no citizen is under an obligation to bring an

antitrust suit [citation] and the private antitrust plaintiff needs no executive or judicial

approval before settling one. It follows that, at least where the international cast of a

transaction would otherwise add an element of uncertainty to dispute resolution, the

prospective litigant may provide in advance for a mutually agreeable procedure whereby

he would seek his antitrust recovery as well as settle other controversies. [¶] . . . [S]o

long as the prospective litigant effectively may vindicate its statutory cause of action in

the arbitral forum, the [antitrust] statute will continue to serve both its remedial and

deterrent function.” (Id. at pp. 636-637.)

In Shearson/American Express, Inc. v. McMahon (1987) 482 U.S. 220

(McMahon), the court held valid and enforceable a predispute agreement to arbitrate a

claim brought under the Racketeer Influenced and Corrupt Organizations Act (RICO) (18

U.S.C. § 1961 et seq.). In reaching its conclusion, the court rejected the argument that

“the public interest in the enforcement of RICO precludes” submission of a RICO claim

to arbitration. (McMahon, at p. 240.) The court found that, like the antitrust treble

damages provision at issue in Mitsubishi Motors, RICO‟s treble damages remedy has

primarily a “remedial purpose,” and that its “policing function . . . , although important,

[is] a secondary concern. [Citation.]” (McMahon, at pp. 240-241.) Because RICO

plaintiffs “may effectively vindicate their RICO claim[s] in an arbitral forum, . . . there is

11

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no inherent conflict between arbitration and the purposes underlying [RICO].”

(McMahon, at p. 242.)

In Rodriguez de Quijas v. Shearson/Am. Exp. (1989) 490 U.S. 477 (Rodriguez de

Quijas), the court held that predispute agreements to arbitrate claims under the federal

Securities Act of 1933 (1933 Act) (15 U.S.C. § 77A et seq.) are valid and enforceable.

About 35 years earlier, in Wilko v. Swan (1953) 346 U.S. 427 (Wilko), the court held

otherwise, relying largely on the fact that the 1933 Act conferred on buyers of securities

special procedural advantages, including broadened venue and nationwide service of

process in federal court, no amount-in-controversy requirement for diversity cases, and

concurrent jurisdiction in state and federal courts without the possibility of removal.

(Wilko, at pp. 431-435.) Congress provided these advantages, the court explained in

Wilko, in recognition of “the disadvantages under which buyers labor” vis-à-vis sellers,

i.e., less opportunity to investigate and appraise factors affecting a security‟s value. (Id.

at p. 435.) Predispute arbitration agreements are problematic, the Wilko court reasoned,

because the buyer is “surrender[ing] . . . the [procedural] advantages the [1933] Act gives

him . . . at [precisely] a time when he is less able to judge the weight of the handicap the

[1933] Act places upon his adversary.” (Ibid.) In this regard, the Wilko court declared,

“a waiver in advance of a controversy stands upon a different footing” than a post-dispute

waiver. (Id. at p. 438.) When the high court later overruled Wilko, it held that a buyer‟s

procedural advantages in litigation are not “so critical that they cannot be waived [in a

predispute arbitration agreement] under the rationale that the [1933] Act was intended to

place buyers of securities on an equal footing with sellers.” (Rodriguez de Quijas, supra,

at p. 481.) Among other things, the court reasoned, “the grant of concurrent jurisdiction

constitutes explicit authorization for [buyers] to waive” the other procedural advantages

“by filing suit in state court without possibility of removal to federal court.” (Id. at p.

482.)

12

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In Gilmer v. Interstate/Johnson Lane Corp. (1991) 500 U.S. 20, 23 (Gilmer), the

high court held that a mandatory, predispute employment agreement to arbitrate an age

discrimination claim brought under federal law is valid and enforceable. In reaching this

conclusion, the court rejected the argument that the arbitration agreement was

unenforceable because the Age Discrimination in Employment Act of 1967 (ADEA) (29

U.S.C. § 621 et seq.) “is designed not only to address individual grievances, but also to

further important social policies. [Citation.]” (Gilmer, at p. 27.) The court explained:

“We do not perceive any inherent inconsistency between those policies, however, and

enforcing agreements to arbitrate age discrimination claims. . . . Both [arbitration and

judicial dispute resolution] . . . can further broader social purposes. . . . „[S]o long as the

prospective litigant effectively may vindicate [his or her] statutory cause of action in the

arbitral forum, the statute will continue to serve both its remedial and deterrent function.‟

[Citation.]” (Id. at p. 28.) The court also rejected the argument that arbitration was

inadequate because it offered more limited discovery than litigation in court, explaining:

“[T]here has been no showing in this case that the [arbitration] discovery provisions . . .

will prove insufficient to allow ADEA claimants . . . a fair opportunity to present their

claims. Although those procedures might not be as extensive as in the federal courts, by

agreeing to arbitrate, a party „trades the procedures and opportunity for review of the

courtroom for the simplicity, informality, and expedition of arbitration.‟ [Citation.]” (Id.

at p. 31.) Finally, the court rejected the claim that the mandatory, predispute employment

arbitration clause should be unenforceable because “there often will be unequal

bargaining power between employers and employees.” (Id. at p. 33.) “Mere inequality in

bargaining power,” the court explained, “is not a sufficient reason to hold that

[mandatory, predispute] arbitration agreements are never enforceable in the employment

context.” A “claim of unequal bargaining power,” the court held, “is best left for

resolution in specific cases” on specific facts. (Ibid.)

13

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In several decisions, we have followed these high court precedents to uphold the

validity of predispute arbitration agreements. In Broughton, supra, 21 Cal.4th at page

1084, at issue was a predispute agreement to arbitrate a damage claim under the

Consumers Legal Remedies Act (CLRA) (Civ. Code, § 1750 et seq.). In holding that the

agreement was valid and enforceable, we explained: “Such an action is primarily for the

benefit of a party to the arbitration, even if the action incidentally vindicates important

public interests. [Citation.] In the context of statutory damages claims, the United States

Supreme Court has consistently rejected plaintiffs‟ arguments that abbreviated discovery,

arbitration‟s inability to establish binding precedent, and a plaintiff's right to a jury trial

render the arbitral forum inadequate, or that submission of resolution of the claims to

arbitration is in any sense a waiver of the substantive rights afforded by statute.

[Citations.] „By agreeing to arbitrate a statutory claim, a party does not forgo the

substantive rights afforded by the statute; it only submits to their resolution in an arbitral,

rather than a judicial, forum.‟ [Citation.]” (Broughton, supra, at p. 1084.)

In Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal.4th 303, 317-318 (Cruz),

we held that a predispute agreement to arbitrate a claim for restitution and disgorgement

under the unfair competition law (UCL) (Bus. & Prof. Code, § 17200 et seq.) is valid and

enforceable. In reaching this conclusion, we rejected the argument that such a claim is

inarbitrable because “restitution under the UCL accomplishes a public purpose by

deterring unlawful conduct,” explaining: “[T]he same could be said of damages under

the CLRA or under various federal statutes. This deterrent effect is, however, incidental

to the private benefits obtained from those bringing the restitutionary or damages action.

[Citation.] The Supreme Court has made clear that such actions, notwithstanding the

public benefit, are fully arbitrable under the FAA.”3 (Cruz, at p. 318.)


3

In Broughton, a bare majority of the court also held that a predispute agreement to

arbitrate a CLRA for injunctive relief is not enforceable, based on its view that such relief

(footnote continued on next page)

14

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These authorities support the conclusion that the arbitration agreement here at

issue is valid and enforceable according to its terms. Like the claims at issue in those

cases, a claim for recovery of vacation pay is a remedial claim that primarily benefits the

individual employee. Thus, any public benefit from such a claim is merely incidental to

the legislation‟s primary purpose. Like the procedures at issue in Rodriguez de Quijas,

the potential procedural advantages of a Berman hearing are not “so critical that they

cannot be waived” in a predispute arbitration agreement under the rationale that the

Berman statutes were intended to place employees on an equal footing with employers

(cf. Rodriguez de Quijas, supra, 490 U.S. at p. 481), or, as the majority puts it, to

“level[]” the “playing field” (maj. opn., ante, at p. 25). The Legislature itself has

established this fact by providing that an employee may skip the administrative process

and go directly to court, and that the Labor Commission may take no action on a claim or

file a civil claim without holding a Berman hearing. These provisions, like the provision

granting concurrent jurisdiction in Rodriguez de Quijas, “constitute[] explicit

authorization for [employees] to waive” the potential procedural advantages of a Berman

hearing.4 (Id. at p. 482.) Moreover, as I have previously explained, even without a

Berman hearing‟s potential procedural advantages, employees may effectively vindicate

(footnote continued from previous page)

“is for the benefit of the general public rather than the party bringing the action.”
(Broughton, supra, 21 Cal.4th at p. 1082.) Any benefit to the individual plaintiff, the
majority argued, would likely “be incidental to the general public benefit . . . .” (Id. at p.
1080, fn. 5.) In Cruz, a bare majority of the court reaffirmed this holding and extended it
to consumer claims for injunctive relief under the UCL and for false advertising. (Cruz,
supra, 30 Cal.4th at pp. 312-316.) Such relief, the majority asserted, is “designed to
prevent further harm to the public at large rather than to redress or prevent injury to a
plaintiff.” (Id. at p. 316.)
4

Moreover, in light of these provisions, enforcing an employee‟s waiver of the right

to pursue a Berman hearing does not, as the majority asserts, “undermine the legislative
policy behind the Berman hearing statutes.” (Maj. opn., ante, at p. 22, fn. 9.)

15

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their statutory right to unpaid vacation pay in arbitration. Finally, as Gilmer establishes,

the majority‟s concern that employees have fewer resources and less “bargaining power”

than employers (maj. opn., ante, at p. 25) “is not a sufficient reason to hold that

[mandatory, predispute] arbitration agreements are never enforceable in the employment

context.” (Gilmer, supra, 500 U.S. at p. 33) A “claim of unequal bargaining power is

best left for resolution in specific cases” on specific facts.5 (Ibid.) Under these

decisions — which the majority completely ignores, while offering none in support of its

conclusion — the arbitration agreement in this case is enforceable according to its terms.

III. The Berman Statutes, as the Majority Construes Them, Are Preempted

by the FAA.

As the high court has explained, the FAA not only declares a liberal federal policy

favoring arbitration agreements, it creates a body of federal substantive law that requires

courts to enforce privately negotiated arbitration agreements within the FAA‟s coverage

according to their terms. (Volt Info. Sciences v. Leland Stanford Jr. U. (1989) 489 U.S.

468, 478; Moses H. Cone Hospital v. Mercury Constr. Corp. (1983) 460 U.S. 1, 24.)

This federal policy and substantive law apply “notwithstanding any state substantive or

procedural policies to the contrary.” (Moses H. Cone Hospital, 460 U.S. at p. 24.) In

other words, Congress, in enacting the FAA, “intended to foreclose state legislative

attempts to undercut the enforceability of arbitration agreements” (Southland Corp. v.

Keating (1984) 465 U.S. 1, 16 (Southland)), and “withdrew the power of the states to

require a judicial forum for the resolution of claims which the contracting parties agreed

to resolve by arbitration” (id., at p. 10). In short, the FAA “embodies a clear federal


5

Contrary to Gilmer, the majority holds that mandatory, predispute agreements to

arbitrate a claim for vacation pay are generally unenforceable, but leaves open the
possibility that such an agreement is enforceable “as part of a freely negotiated,
nonstandard contract, such as may exist between an employer and a highly compensated
executive employee.” (Maj. opn., ante, at p. 20, fn. 7.)

16

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policy of requiring arbitration unless the agreement to arbitrate is not part of a contract

evidencing interstate commerce or is revocable „upon such grounds as exist at law or in

equity for the revocation of any contract.‟ [Citation.] . . . [N]othing in the [FAA]

indicat[es] that the broad principle of enforceability is subject to any additional

limitations under state law.‟ [Citation.]” (Perry v. Thomas (1987) 482 U.S. 483, 489-

490.)

In Preston, the high court recently made clear that the FAA preempts not only

state laws that require a judicial forum for resolution of disputes the parties have agreed

to arbitrate, but also “state statutes that refer [such] disputes initially to an administrative

agency.” (Preston, supra, 552 U.S. at p. 349.) At issue there was the constitutionality of

a California statute very much like the Berman statutes in that it required the Labor

Commissioner to “hear and determine” disputes arising under California‟s Talent

Agencies Act (TAA) (§ 1700 et. seq.), “subject to an appeal within 10 days after

determination, to the superior court where the same shall be heard de novo.” (§ 1700.44,

subd. (a).) In Preston, an attorney who performed services in the entertainment industry

sought recovery of fees for services rendered to a former Florida judge who appeared on

television. (Id. at p. 350.) The attorney demanded arbitration based on the parties‟

agreement to arbitrate any dispute relating to their contract. The former judge responded

by filing a petition with the Labor Commissioner charging that their contract was illegal

because, in violation of the TAA, the attorney had acted as a talent agent without the

required license. (Preston, supra, at p. 350.) A California trial court denied the motion

to compel arbitration, and the California Court of Appeal affirmed that decision,

reasoning that section 1700.44, subdivision (a), “vest[ed] „exclusive original jurisdiction‟

over the dispute in the Labor Commissioner. [Citation.]” (Preston, supra, at p. 351.)

The high court reversed, holding that the statute “conflict[ed] with the FAA‟s dispute

resolution regime” by “grant[ing] the Labor Commissioner exclusive jurisdiction to

decide an issue that the parties agreed to arbitrate [citation] . . . .” (Preston, supra, at p.

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356.) In reaching its conclusion, the court rejected the claim that, because de novo

review of the Labor Commissioner‟s decision could proceed as an arbitration, the TAA

was “nevertheless compatible with the FAA.” (Preston, supra, at p. 356.) This

approach, the court explained, would frustrate “a prime objective” of an arbitration

agreement: “to achieve „streamlined proceedings and expeditious results.‟ [Citation.]”

(Id. at p. 357.) “Requiring initial reference of the parties‟ dispute to the Labor

Commissioner would, at the least, hinder speedy resolution of the controversy.” (Id. at p.

358.) Thus, the court held, “[w]hen parties agree to arbitrate all questions arising under a

contract, the FAA supersedes state laws lodging primary jurisdiction in another forum,

whether judicial or administrative.” (Id. at p. 359.)

The majority holds that the Berman statutes do precisely what Preston says, under

the FAA, a state statute may not do: lodge primary jurisdiction over a dispute in an

administrative agency notwithstanding the parties‟ agreement to arbitrate that dispute.

Under Preston, the Berman statutes, so construed, directly conflict with the FAA and

violate the supremacy clause of the United States Constitution (U.S. Const., art. VI, cl.

2). Preston also establishes that the availability of arbitration after a Berman hearing, as

part of the statutory de novo review process, does not permit a different conclusion.

What the high court said about the TAA in Preston fully applies to the Berman statutes,

as the majority construes them: “Requiring initial reference of the parties‟ dispute to the

Labor Commissioner would, at the least, hinder speedy resolution of the controversy.”

(Preston, supra, 552 U.S. at p. 358.) In this regard, the majority acknowledges that we

noted in 1998 that the time between filing a complaint with the Labor Commissioner and

a Berman hearing date was usually four to six months, and that Sonic has documented

cases in which the commencement of a Berman hearing took a year or more. (Maj. opn.,

ante, at p. 18, fn. 5.) Moreover, as we have previously observed, because either party to a

Berman hearing “has a right to a trial de novo in superior court, where the ruling of the

Labor Commissioner‟s hearing officer is entitled to no deference,” “Berman hearings

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may result in no cost savings” to the parties. (Gentry, supra, 42 Cal.4th at p. 464.) Thus,

the prospect of arbitration after a Berman hearing does not alter the conclusion that the

Berman statutes, as the majority construes them, are incompatible with the FAA. In

short, as an Illinois appellate court held just last year, “Preston makes it clear that the

[FAA] preempts” the Berman statutes insofar as they “vest[] [primary] jurisdiction in the

[Labor] Commissioner rather than an arbitration proceeding . . . as provided in [a]

contract.” (Ruff v. Splice (Ill. Ct. App. 2010) 923 N.E.2d 1250, 1253.)

The majority‟s grounds for distinguishing Preston are unpersuasive. The majority

first observes that unlike Preston, which involved a challenge to the parties‟ “contract as

a whole,” this case involves a challenge only “to a portion of the arbitration agreement.”

(Maj. opn., ante, at p. 32.) This observation, although accurate, is irrelevant. In Preston,

the circumstance that the challenge was to the contract as a whole, rather than only to its

arbitration clause, was material only to the court‟s threshold determination that the

dispute between the parties presented an issue that, but for the TAA, would be for the

arbitrator to decide in the first instance. (Preston, supra, 552 U.S. at p. 353.) It played

no part in the court‟s subsequent holding — which is the part of Preston that governs

here — that the FAA preempts the TAA insofar as the TAA confers on the Labor

Commissioner primary jurisdiction to decide an issue the parties have agreed to arbitrate.

Here, it is undisputed that Moreno‟s claim for vacation pay presents issues that, but for

the majority‟s construction of the Berman statutes, would be for the arbitrator to decide in

the first instance. Thus, that Preston involved a challenge to the contract as a whole does

not diminish the controlling force of its unqualified and unequivocal holding that the

FAA preempts state laws that lodge in an administrative agency primary jurisdiction over

an issue the parties have agreed to arbitrate. (Preston, supra, at pp. 349-350.)

The majority next asserts that Preston is distinguishable because of “the

fundamental differences” between the TAA and the “statutory regime[]” now before us.

(Maj. opn., ante, at p. 32.) According to the majority, because the TAA “does not come

19

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with the same type of statutory protections as are found in the Berman hearing and

posthearing procedures,” Preston does not govern. (Maj. opn., ante, at p. 32.)

The potential procedural advantages the Legislature has attached to a Berman

hearing do not render Preston inapplicable. Under Preston, were our Legislature, based

on its view of public policy, to enact a statute requiring administrative determination of a

claim before resort to any other forum, the FAA would preempt that statute‟s

enforcement where the parties have agreed, in a predispute agreement evidencing

interstate commerce, to arbitrate that claim. Indeed, this conclusion follows not just from

Preston, but from other decisions in which the high court has expressly “rejected the

proposition that the enforceability of [an] arbitration agreement turn[s] on [a] state

legislature‟s judgment concerning the forum for enforcement of [a] state-law cause of

action. [Citation.]” (Buckeye Check Cashing, Inc. v. Cardegna (2006) 546 U.S. 440, 446

(Buckeye).) The Legislature may not circumvent this proscription simply by attaching

advantageous procedures to the administrative process and declaring — either expressly

or, as the majority finds here, impliedly — those procedures to be unwaivable as a matter

of public policy. As the high court has made clear, the FAA‟s preemptive policy

requiring enforcement of arbitration agreements according to their terms applies

“notwithstanding any state substantive or procedural policies to the contrary.” (Moses H.

Cone Hospital, supra, 460 U.S. at p. 24, italics added.)

Nor, contrary to the majority‟s analysis, may a state legislature — or in this case, a

state court — avoid this FAA proscription by invoking the rule that the FAA permits

revocation of arbitration agreements “upon such grounds as exist at law or in equity for

the revocation of any contract.” (9 U.S.C. § 2.) The high court has twice expressly

rejected this very approach. In Southland, the court held that the FAA preempted

California‟s Franchise Investment Law (Corp. Code § 31000 et seq.) insofar as we had

construed it to prohibit enforcement of agreements to arbitrate claims under that law.

(Southland, supra, 465 U.S. at p. 10.) Justice Stevens dissented from this holding,

20

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relying on the same FAA enforceability exception the majority now invokes: revocation

“based on „such grounds as exist at law or in equity for the revocation of any contract.‟ ”

(Id., at p. 18 (conc. & dis. opn. of Stevens, J.).) He reasoned that, because a contract void

as contrary to public policy is revocable at law or in equity, the FAA does not preempt a

state law that “provid[es] special protection” to franchisees by declaring agreements to

arbitrate claims under the Franchise Investment Law void as a matter of public policy.

(Id. at p. 21). The Southland majority rejected this view, explaining: “We agree, of

course, that a party may assert general contract defenses such as fraud to avoid

enforcement of an arbitration agreement. We conclude, however, that the defense to

arbitration found in the California Franchise Investment Law is not a ground that exists at

law or in equity „for the revocation of any contract‟ but merely a ground that exists for

the revocation of arbitration provisions in contracts subject to the California Franchise

Investment Law. Moreover, under [Justice Stevens‟s] view, „a state policy of providing

special protection for franchisees . . . can be recognized without impairing the basic

purposes of the federal statute.‟ [Citation.] If we accepted this analysis, states could

wholly eviscerate congressional intent to place arbitration agreements „upon the same

footing as other contracts,‟ [citation] simply by passing statutes such as the Franchise

Investment Law. We have rejected this analysis because it is in conflict with the [FAA]

and would permit states to override the declared policy requiring enforcement of

arbitration agreements.” (Id., at pp. 16-17, fn. 11.)

The majority‟s analysis is inconsistent with Southland. Contrary to the majority‟s

conclusion, under Southland, “the defense to arbitration” the majority has read into the

Berman statutes — based on a state public policy that precludes waiver of a Berman

hearing‟s potential procedural advantages — “is not a ground that exists at law or in

equity „for the revocation of any contract‟ but merely a ground that exists for the

revocation of arbitration provisions in contracts subject to” the Berman statutes.

(Southland, supra, 465 U.S. at p. 16, fn. 11; see Carter v. SSC Odin Operating Co., LLC

21

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(Ill. 2010) 927 N.E.2d 1207, 1218 (Carter) (antiwaiver provisions of state Nursing Home

Care Act, although based on public policy, “are not a defense generally applicable to „any

contract‟ ” because they “invalidate arbitration agreements [only] in a specific type of

contract — those involving nursing care”].) Also contrary to Southland, the majority‟s

view that California may implement a “ „a state policy of providing special protection

for‟ ” a class of individuals — in this case, employees — will permit California “wholly

[to] eviscerate congressional intent to place arbitration agreements „upon the same

footing as other contracts,‟ [citation] simply by passing statutes such as” the Berman

statutes. (Southland, at p. 16, fn. 11.) In this regard, the majority‟s approach, Southland

declares, “conflict[s] with” the FAA and, therefore, is impermissible. (Ibid.)

The majority‟s analysis is also inconsistent with the high court‟s more recent

decision in Buckeye, supra, 546 U.S. 440. In Prima Paint v. Flood & Conklin (1967) 388

U.S. 395, 402-404, the court held that, as a matter of substantive federal arbitration law, a

contract‟s arbitration provision is severable from the rest of the contract, and challenges

to the validity of the contract as a whole, as opposed to the arbitration provision itself,

must be arbitrated in the first instance. Notwithstanding this decision, in Cardegna v.

Buckeye Check Cashing, Inc. (Fla. 2005) 894 So.2d 860, 864-865, the Florida Supreme

Court held that, where the party resisting arbitration alleges that the entire contract is

illegal and thus unenforceable as a matter of state public policy, a Florida court, and not

an arbitrator, must first determine the contract‟s legality. In Buckeye, supra, 546 U.S. at

page 446, the high court reversed the Florida court‟s decision, explaining that, under the

FAA, Florida‟s public policy of refusing to enforce an arbitration provision in an illegal

contract is “irrelevant.” The court explained: “[I]n Southland, . . . [w]e . . . rejected the

proposition that the enforceability of [an] arbitration agreement turned on the state

legislature‟s judgment concerning the forum for enforcement of the state-law cause of

action. [Citation.] So also here, we cannot accept the Florida Supreme Court‟s

conclusion that enforceability of the arbitration agreement should turn on „Florida public

22

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policy and contract law‟ [citation].” (Buckeye, supra, 546 U.S. at p. 446.) Under

Buckeye, the majority‟s conclusion that Moreno‟s predispute waiver of his right to

request a Berman hearing violates state public policy is simply “irrelevant,” and its view

that the arbitration provision‟s enforceability “should turn on „California public policy

and contract law‟ ” is erroneous as a matter of federal law. (Buckeye, supra, 546 U.S. at

p. 446.) As Buckeye firmly establishes, contrary to the majority‟s view, the FAA does

not permit either the Legislature or a majority of this court to refuse to enforce an

arbitration agreement based on its “judgment concerning the forum for enforcement of

the state-law cause of action” for vacation pay.6 (Buckeye, supra, at p. 446.)

Despite these decisions, the majority declares that it does not “understand the FAA

to preempt a state‟s authority to impose various preliminary proceedings that delay both

the adjudication and the arbitration of a cause of action in order to pursue important state

interests.” (Maj. opn., ante, at p. 35.) According to the majority, the high court has never

suggested that the FAA preempts state laws requiring that preliminary administrative

steps like the filing of an administrative complaint be pursued before the filing of a civil

action. (Maj. opn., ante, at pp. 34-35.) “So, too,” the majority continues, consistent with

the FAA, “a state Legislature may, as it has done with the Berman hearings, advance a

certain public policy by offering certain classes of litigants the [unwaivable] option of an

informal, nonbinding administrative hearing serving as a gateway to obtaining special

protections that enable the vindication of their claims.” (Maj. opn., ante, at p. 35.)


6

In this regard, Buckeye also establishes that this court‟s earlier decisions in

Broughton and Cruz are incorrect insofar as they hold that, notwithstanding the FAA,
California may prohibit arbitration of claims for injunctive relief under the CLRA, the
UCL, and for false advertising, because of injunctive relief‟s public purpose and the
institutional shortcomings of arbitration as a forum for dealing with public injunctions.
(See Cruz, supra, 30 Cal.4th at pp. 323-341 (dis. opn. of Chin, J.); Broughton, supra, 21
Cal.4th at pp. 1089-1094 (dis. opn. of Chin, J.).)

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Again, Preston conclusively refutes the majority‟s understanding of the FAA.

There, in holding that the FAA preempts the TAA, the high court distinguished between

an agency acting in the role of “adjudicator” and an agency acting in the role of

“prosecutor, pursuing an enforcement action in its own name or reviewing a . . . charge to

determine whether to initiate judicial proceedings.” (Preston, supra, 552 U.S. at p. 359.)

In proceedings under the TAA, the court explained, “the Labor Commissioner functions

not as an advocate advancing a cause before a tribunal authorized to find the facts and

apply the law; instead, the Commissioner serves as impartial arbiter.” Because “[t]hat

role is just what the FAA-governed agreement between [the parties] reserves for the

arbitrator,” the court explained, the TAA is incompatible with the FAA. (Preston, at p.

359.) Similarly, in a Berman hearing, the Labor Commissioner functions not as an

advocate advancing a cause before a tribunal authorized to find the facts and apply the

law; instead, the Commissioner serves as impartial arbiter. And because that role is just

what the FAA-governed agreement between Moreno and Sonic reserves for the arbitrator,

the Berman statutes, as interpreted by the majority, are incompatible with the FAA.

Thus, the FAA preempts the Berman statutes insofar as the majority construes them, as a

matter of public policy, to allow Moreno to pursue a Berman hearing notwithstanding his

agreement to forego that option and arbitrate his claim for vacation pay.7




7

The majority asserts that the FAA does not preempt the Berman statutes insofar as

they prohibit “Berman waivers” because that prohibition “does not discriminate against
arbitration agreements” and applies “equally” to waivers that “appear[] . . . independent
of arbitration.” (Maj. opn., ante, at p. 27.)
However, as the Illinois Supreme Court recently explained, the California statute the high
court found preempted in Preston “did not single out or target arbitration agreements
explicitly,” but “simply placed [primary] jurisdiction of labor disputes with an
administrative agency [citations].” (Carter, supra, 927 N.E.2d at p. 1218.) Preston thus
“make[s] clear that state statutes are preempted by the FAA if the statutes as applied
preclude the enforcement of federally protected arbitration rights, regardless of whether
the state statutes specifically target arbitration agreements.” (Carter, at p. 1218)

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IV. The Arbitration Provision Is Not Unconscionable.

The majority alternatively holds that the arbitration provision is unconscionable

insofar as it precludes Moreno from requesting a Berman hearing before submitting his

claim to arbitration. For both procedural and substantive reasons, I do not join this

holding.

Procedurally, we should not reach the issue. In Pearson Dental Supplies, Inc. v.

Superior Court (2010) 48 Cal.4th 665, 681, we recently held that the plaintiff, who was

resisting a petition to compel arbitration, had “forfeited” his claim of unconscionability

by failing to “raise the issue.” Here, after inserting a boilerplate allegation of

unconscionability as an affirmative defense in his response to Sonic‟s petition to compel

arbitration, Moreno did nothing in the trial court to pursue that defense. In his briefs, he

argued only that the arbitration provision violates public policy insofar as it burdens his

ability to vindicate his right to vacation pay. Nor did he assert unconscionability in the

Court of Appeal, in the petition for review he filed in this court, or in the opening and

reply briefs he filed with us. It was not until well after briefing closed in this court, when

we resurrected the issue by asking the parties to discuss it in supplemental briefs, that

Moreno ever mentioned unconscionability again. On this record, and given that Moreno,

as the party asserting unconscionability, bears the burden of proving unconscionability

(Engalla, supra, 15 Cal.4th at p. 972; Szetela v. Discover Bank (2002) 97 Cal.App.4th

1094, 1099), Moreno has forfeited or abandoned the issue.

Alternatively, rather than decide the merits, we should remand the issue of

unconscionability for consideration in the lower courts, as we did a similar claim in

Boghos v. Certain Underwriters at Lloyd’s of London (2005) 36 Cal.4th 495, 509. There,

after reversing a finding that an arbitration provision was unenforceable based on

unwaivability, we declined to address an unconscionability claim, noting that “no court

ha[d] yet addressed” the issue and stating: “Considerations of judicial economy make it

appropriate to leave [this] question[] to the lower courts in the first instance. [Citation.]”

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(Ibid.) Consistent with our decision, several published decisions have since explained

that, because a determination of unconscionability requires development of a factual

record, an appellate court should not address an unconscionability claim that has not been

litigated in the trial court. (Koehl v. Verio, Inc. (2006) 142 Cal.App.4th 1313, 1338-

1339; Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286, 1293, fn. 7.) Given

these authorities and the record here, we should not reach the issue.

Substantively, the majority‟s analysis is unpersuasive. The majority finds that a

predispute “Berman waiver” is “markedly one-sided” because it “only benefit[s] the

employer at the expense of the employee” and the majority finds itself unable to say that

the benefits of arbitration “compensate[]” the employee for giving up the option of a

Berman hearing. (Maj. opn., ante, at p. 25.) Thus, the majority declares, “the main

purpose of the Berman waiver appears to be for employers to gain an advantage in the

dispute resolution process by eliminating the statutory advantages accorded to employees

designed to make that process fairer and more efficient.” (Id., italics added.) However,

as previously noted, because of the de novo review process under the Berman statutes, a

decision to waive the administrative option potentially saves the employee both time and

money. The majority‟s analysis disregards these substantial benefits.8


8

The majority incorrectly assumes that, under its holding, an employee will

necessarily have the choice, after a dispute arises, of going directly to arbitration or
pursuing a Berman hearing first. (Maj. opn., ante, at p. 22, fn. 9.) In light of the
majority‟s holding, parties in the future will likely exclude from predispute arbitration
agreements claims that would be subject to the Berman statutes. Thus, after a dispute
arises, an employee who has signed such an agreement will not be able to choose
arbitration absent the employer‟s agreement. Indeed, in light of the majority‟s holding, it
is not even clear in this case that either Moreno or Sonic may, without the other‟s
agreement, insist on arbitration either before or after a Berman hearing. (Cf. Gentry,
supra, 42 Cal.4th at p. 466 [if trial court invalidates class action waiver provision on
public policy grounds, parties may waive arbitration provision and bring matter to
court].)

26

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Moreover, the focus of the majority‟s analysis is incorrectly narrow. Contrary to

what the majority‟s discussion suggests, the agreement at issue here does not contain a

“Berman waiver” per se. Rather, as noted above, it contains a broad, bilateral arbitration

provision that applies, with certain exceptions, to “all disputes that may arise out of the

employment context . . . that either [party] . . . may have against the other which would

otherwise require or allow resort to any court or other governmental dispute resolution

forum.” (Ante, p. 2.) It is this broad, bilateral provision for arbitration that encompasses,

among other things, what the majority calls “the Berman waiver.” An assessment of

substantive unconscionability should consider the purpose and benefits to the employee

of this broad arbitration provision. Thus, the majority errs in focusing narrowly only on

the purpose and benefits of the provision insofar as it constitutes a waiver of Berman

procedures.

Viewed from a broader perspective, the arbitration provision is not

unconscionable. As noted above, it requires both the employer and the employee to

submit all of their claims against each other to binding arbitration, subject to a limited list

of exceptions. Moreover, the claims excluded from the arbitration provision are largely

claims that would be brought by an employee. In other words, as Sonic observes, “the

arbitration agreement does not inequitably exempt the employer from arbitration of

claims more likely to be brought by an employee.” As also noted above, in the

arbitration provision, the parties expressly acknowledged that their bilateral agreement to

arbitrate all of their disputes, subject to enumerated exceptions, would provide “mutual

benefits (such as reduced expense and increased efficiency).” (Italics added.) Neither

Moreno nor the majority has established otherwise. Indeed, by holding that Sonic may

pursue arbitration under the parties‟ agreement after a Berman hearing (maj. opn., ante, at

pp. 9-11), the majority implicitly finds that the arbitration provision is not, viewed in its

entirety, impermissibly one-sided. In short, I agree with Sonic that “[t]he so-called

Berman [w]aiver only looks [one-sided] in a vacuum.” Because neither Moreno, who

27

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bears the burden of proof on the issue, nor the majority has shown that the arbitration

provision, viewed from the proper perspective, is unconscionable, I do not join the

majority‟s holding.


V. Conclusion.

The laws of both California and the United States require courts to enforce

arbitration agreements according to their terms, absent a ground for revocation of any

contract. Because no such ground exists in this case, the arbitration provision at issue is

fully enforceable. The majority‟s contrary conclusion is inconsistent with federal and

state law, and renders California‟s statutory scheme preempted by the FAA.

Of greater concern than the fate of the arbitration provision at issue in this case are

the far-reaching implications of the majority‟s decision for arbitration in California.

Under the majority‟s analysis, for an arbitration agreement to be valid and enforceable, it

is no longer enough that arbitration allows full vindication of the substantive statutory

right at issue. To invalidate an arbitration agreement, a court need only find some

advantageous procedure that the Legislature has attached to a particular forum, and

declare — without any indication from the Legislature — that waiver of that procedure is

against public policy. Under the majority‟s analysis, for an arbitration agreement to be

valid and enforceable, it also is no longer enough that an employer, like its employee,

agrees to arbitrate all of its claims, and even provides for exceptions to arbitration that

may be invoked only by the employee. To invalidate an arbitration agreement as

impermissibly one-sided and unconscionable, a court, isolating one claim from the many

the parties have agreed to arbitrate, need only declare itself unable to say that the benefits

the employee gains from arbitration of that isolated claim compensate for what the

employee loses. In these respects, the majority‟s decision substantially undermines the

public policy as declared by the Legislature, which strongly favors enforcement of

arbitration agreements according to their terms and requires us to indulge every

28

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intendment to give effect to an arbitration provision. The majority‟s decision also

improperly disregards the well-established principles that courts should not declare a

contractual provision to be void as against public policy unless that conclusion is free

from doubt and entirely plain, and the party resisting arbitration bears the burden of

showing that the provision is against public policy or unconscionable. Finally, contrary

to the high court‟s decisions, the majority‟s decision impermissibly allows states — or

their courts — easily to circumvent the federal policy favoring enforcement of arbitration

agreements according to their terms. For all of these reasons, I dissent.

CHIN, J.

WE CONCUR:

BAXTER, J.
CORRIGAN, J.

29

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Sonic-Calabasas A, Inc. v. Moreno
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 174 Cal.App.4th 546
Rehearing Granted

__________________________________________________________________________________

Opinion No. S174475
Date Filed: February 24, 2011
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: Aurelio Munoz

__________________________________________________________________________________

Counsel:

Fine, Boggs & Perkins, David J. Reese and John P. Boggs for Plaintiff and Appellant.

Locker Folberg, Rachel Folberg and Miles E. Locker for Defendant and Respondent.

McGuinn, Hillsman & Palefsky, Cliff Palefsky, Keith Ehrman; Law Office of Daniel U. Smith and Valerie T.
McGinty for California Employment Lawyers Association as Amicus Curiae on behalf of Defendant and
Respondent.

Hina B. Shah; Cynthia Rice; Jose Tello; Miye Goishi; and Silas Shawver for Asian Law Caucus, Asian Pacific
American Legal Center, Bet Tzedek Legal Services, California Rural Legal Assistance, Inc., Centro Legal de La
Raza, Garment Worker Center, Hastings Civil Justice Clinic, Katharine & George Alexander Community Law
Center, La Raza Centro Legal, Lawyers‟ Committee for Civil Rights of the San Francisco Bay Area, Legal Aid
Foundation of Los Angeles, Legal Aid Society-Employment Law Center, Maintenance Cooperation Trust Fund,
National Employment Law Project, Neighborhood Legal Services of Los Angeles County, Wage Justice Center,
Women‟s Employment Rights Clinic of Golden Gate University School of Law and Worksafe Law Center as Amici
Curiae on behalf of Defendant and Respondent.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

John P. Boggs
Fine, Boggs & Perkins
2450 So. Cabrillo Hwy., Suite 100
Half Moon Bay, CA 94019
(650) 712-8908

Miles E. Locker
Locker Folberg
235 Montgomery Street, Suite 835
San Francisco, CA 94104
(415) 962-1626

Cliff Palefsky
McGuinn, Hillsman & Palefsky
535 Pacific Avenue
San Francisco, CA 94133
(415) 421-9292

---

Petition for review after the Court of Appeal reversed an order denying a motion to compel arbitration. This case presents the following issues: (1) Can a mandatory employment arbitration agreement be enforced prior to the conclusion of an administrative proceeding conducted by the Labor Commissioner concerning an employee's statutory wage claim? (2) Was the Labor Commissioner's jurisdiction over employee's statutory wage claim divested by the Federal Arbitration Act under Preston v. Ferrer (2008) __ U.S. __, 128 S.Ct. 978, 169 L.Ed.2d 917?

Opinion Information

Date:	Citation:	Docket Number:	Category:	Status:
Thu, 02/24/2011	51 Cal. 4th 659, 247 P.3d 130, 121 Cal. Rptr. 3d 58	S174475	Review - Civil Appeal	submitted/opinion due

Opinion Authors
Opinion	Justice Carlos R. Moreno
Dissent	Justice Ming W. Chin

Dockets
Jul 8 2009	Petition for review filed Defendant and Respondent: Moreno, Frank B.Attorney: Miles E. Locker   Frank Moreno, respondent by Miles E. Locker, counsel
Jul 9 2009	Record requested
Jul 29 2009	Answer to petition for review filed Plaintiff and Appellant: Sonic-Calabasas A, Inc.Attorney: David John Reese   Sonic-Calabasas A, Inc., appellant, David Reese, counsel
Aug 7 2009	Reply to answer to petition filed Defendant and Respondent: Moreno, Frank B.Attorney: Miles E. Locker   Frank Moreno, respondent, Miles Locker, counsel
Jul 9 2009	Received Court of Appeal record
Aug 21 2009	Time extended to grant or deny review   The time for granting or denying review in the above-entitled matter is hereby extended to and including October 6, 2009, or the date upon which review is either granted or denied.
Sep 9 2009	Petition for review granted   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
Sep 24 2009	Certification of interested entities or persons filed   Sonic Automotive, Inc., appellant, David Reese, counsel
Sep 25 2009	Certification of interested entities or persons filed   Frank Moreno, respondent, Miles Locker, counsel
Oct 9 2009	Opening brief on the merits filed Defendant and Respondent: Moreno, Frank B.Attorney: Miles E. Locker
Nov 5 2009	Request for extension of time filed   for appellant to file the answer brief on the merits, to 2-4-10
Nov 9 2009	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including December 8, 2009.
Dec 9 2009	Answer brief on the merits filed Plaintiff and Appellant: Sonic-Calabasas A, Inc.Attorney: David John Reese   (timely per CRC 8.25b)
Dec 23 2009	Request for extension of time filed   Defendant requests a 30 day extension to January 28.
Dec 24 2009	Extension of time granted   On application of Respondent and good cause appearing, it is ordered that the time to serve and file the Reply Brief on the Merits is extended to and including January 28, 2010
Jan 28 2010	Reply brief filed (case fully briefed) Defendant and Respondent: Moreno, Frank B.Attorney: Miles E. Locker
Feb 25 2010	Application to file amicus curiae brief filed   California Employment Lawyers Association in support of Frank Moreno Keith Ehrman, counsel
Feb 26 2010	Application to file amicus curiae brief filed   Asian Law Caucus et al.,
Mar 1 2010	Permission to file amicus curiae brief granted   The application of California Employment Lawyers Association for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Mar 1 2010	Amicus curiae brief filed Amicus curiae: California Employment Lawyers AssociationAttorney: Keith Ehrman
Mar 4 2010	Permission to file amicus curiae brief granted   The application of Asian Law Caucus et al. for permission to file an amicus curiae brief in support of respondent is hereby granted. An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Mar 4 2010	Amicus curiae brief filed Amicus curiae: Asian Law CaucusAttorney: Hina B. Shah
Mar 4 2010	Request for judicial notice filed (Grant or AA case) Amicus curiae: Asian Law CaucusAttorney: Hina B. Shah
Mar 23 2010	Response to amicus curiae brief filed Plaintiff and Appellant: Sonic-Calabasas A, Inc.Attorney: David John Reese   response to amicus curiae brief of the California Employment Lawyers Association (CRC, rule 8.25 (b))
Mar 25 2010	Response to amicus curiae brief filed Plaintiff and Appellant: Sonic-Calabasas A, Inc.Attorney: David John Reese   response to amicus curiae brief of the Asian Law Caucus et al. (CRC, rule 8.25(b))
Oct 14 2010	Supplemental briefing ordered   The parties in the above-entitled matter are requested to brief the following questions: Was the Berman waiver contained in the arbitration agreement between the parties unconscionable? The parties are requested to file and serve simultaneous letter briefs by October 29, 2010, and may file reply briefs by November 5, 2010.
Oct 26 2010	Received:   Notice of Unavilability of Counsel by Attorneys for Defendant and Respondent Frank Moreno.
Oct 27 2010	Case ordered on calendar   to be argued Wednesday, December 8, 2010, at 9:00 a.m., in Los Angeles
Oct 29 2010	Letter brief filed Plaintiff and Appellant: Sonic-Calabasas A, Inc.Attorney: David John Reese   Fax copy filed. Original to be received and filed Nov 1, 2010.
Nov 1 2010	Letter brief filed Defendant and Respondent: Moreno, Frank B.Attorney: Miles E. Locker   Under 8.25 (b)
Nov 5 2010	Supplemental reply brief filed Plaintiff and Appellant: Sonic-Calabasas A, Inc.Attorney: David John Reese   Fax copy received and file. Hard copy to be file.
Nov 8 2010	Received:   Hard copy of supplemental reply brief filed by Fax 11/5/2008.
Nov 8 2010	Supplemental reply brief filed Defendant and Respondent: Moreno, Frank B.Attorney: Miles E. Locker   Under 8.25 (b)
Nov 8 2010	Application filed   Application to divide oral argument time, filed by Miles E. Locker, counsel for respondent Moreno, asking to share 10 minutes of time with amicus curiae California Employment Lawyers Association.
Nov 9 2010	Order filed   The request of respondent to allocate to amicus curiae California Employment Lawyers Association 10 minutes of respondent's 30-minute allotted time for oral argument is granted.
Nov 16 2010	Request for judicial notice granted   The judicial notice request of Amici Curiae Asian Law Caucus et al., filed on March 4, 2010, is granted with respect to exhibits 4-7, 9 and 11. As to the remaining exhibits, the request is denied.
Dec 8 2010	Cause argued and submitted
Dec 14 2010	Change of contact information filed for:   Counsel for amicus curiae Calif. Employment Lawyers Association.
Jan 3 2011	Justice pro tempore assigned   George, C.J. (retired), appointed as justice pro tempore to this case.
Feb 23 2011	Notice of forthcoming opinion posted   To be filed on Thursday, February 24, 2011 at 10 a.m.

Briefs
Oct 9 2009	Opening brief on the merits filed Defendant and Respondent: Moreno, Frank B.Attorney: Miles E. Locker
Dec 9 2009	Answer brief on the merits filed Plaintiff and Appellant: Sonic-Calabasas A, Inc.Attorney: David John Reese
Jan 28 2010	Reply brief filed (case fully briefed) Defendant and Respondent: Moreno, Frank B.Attorney: Miles E. Locker
Mar 1 2010	Amicus curiae brief filed Amicus curiae: California Employment Lawyers AssociationAttorney: Keith Ehrman
Mar 4 2010	Amicus curiae brief filed Amicus curiae: Asian Law CaucusAttorney: Hina B. Shah
Mar 23 2010	Response to amicus curiae brief filed Plaintiff and Appellant: Sonic-Calabasas A, Inc.Attorney: David John Reese
Mar 25 2010	Response to amicus curiae brief filed Plaintiff and Appellant: Sonic-Calabasas A, Inc.Attorney: David John Reese

Brief Downloads
s174475-1-respondents-petition-for-review.pdf (482057 bytes) - Respondents Petition for Review
s174475-2-appellants-answer-to-petition-for-review.pdf (176887 bytes) - Appellants Answer to Petition for Review
s174475-3-respondents-reply-to-answer-to-petition.pdf (148006 bytes) - Respondents Reply to Answer to Petition
s174475-4-respondents-opening-brief-on-the-merits.pdf (316404 bytes) - Respondents Opening Brief on the Merits
s174475-5-appellants-answer-brief-on-the-merits.pdf (415315 bytes) - Appellants Answer Brief on the Merits
s174475-6-respondents-reply-brief-on-the-merits.pdf (250771 bytes) - Respondents Reply Brief on the Merits
s174475-7-appellants-letter-brief.pdf (385904 bytes) - Appellants Letter Brief
s174475-8-respondents-letter-brief.pdf (152894 bytes) - Respondents Letter Brief
s174475-9-appellants-supplemental-reply-brief.pdf (413611 bytes) - Appellants Supplemental Reply Brief
s174475-10-respondents-supplemental-reply-brief.pdf (114520 bytes) - Respondents Supplemental Reply Brief

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website

Jun 12, 2012 Annotated by Kyle Wislocky

On 10/31/11, The Supreme Court of the United States vacated the California Supreme Court’s decision in this case: CERTIORARI -- SUMMARY DISPOSITIONS 10-1450 SONIC-CALABASAS A, INC. V. MORENO, FRANK The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the Supreme Court of California for further consideration in light of AT&T Mobility LLC v. Concepcion, 563 U.S. ___ (2011). Available at: Supreme Court of the United States Website Annotation by Kyle Wislocky