OTO, L.L.C., Plaintiff and Appellant, v. Ken KHO, Defendant and Respondent; Julie A. Su, as Labor Commissioner, etc., Intervener and Appellant., 251 Cal. Rptr. 3d 714

Opinion of the Court by Corrigan, J. Here, we again consider the enforceability of an agreement requiring arbitration of wage disputes. Sonic-Calabasas A, Inc. v. Moreno (2011) 51 Cal.4th 659, 121 Cal.Rptr.3d 58, 247 P.3d 130 ( Sonic

I) concluded that such arbitration agreements are categorically unconscionable because workers waive their statutory rights to a "Berman hearing" and related procedures designed to assist in the recovery of unpaid wages. (See Lab.

Code, § 98 et seq. ) Rather than invalidating the entire agreement, however, Sonic I held that while Berman protections could not be waived, any party dissatisfied with the Berman hearing's result could move the dispute to arbitration. ( Sonic I , at pp. 669, 675, 121 Cal.Rptr.3d 58, 247 P.3d 130.) The United States Supreme Court vacated that judgment and remanded for consideration in light of AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 131 S.Ct. 1740, 179 L.Ed.2d 742 ( Concepcion ).

Thereafter, we determined Sonic I 's categorical rule of unconscionability was preempted by the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq. ). ( Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1146, 163 Cal.Rptr.3d 269, 311 P.3d 184 ( Sonic II ).) We held instead that an arbitration agreement is not categorically unconscionable solely because it entails a waiver of the Berman procedure.

An agreement to arbitrate wage disputes can be enforceable so long as it provides an accessible and affordable process for resolving those disputes. ( Id . at p. 1146, 163 Cal.Rptr.3d 269, 311 P.3d 184.) We originally granted review in this case to decide whether an arbitral scheme resembling civil litigation can constitute a sufficiently accessible and affordable process. Because the facts here involve an unusually high degree of procedural unconscionability, however, a definitive resolution of that specific question is unnecessary.

Even if a litigation-like arbitration procedure may be an acceptable substitute for the Berman process in other circumstances, an employee may not be coerced or misled into accepting this trade. Considering the oppressive circumstances present here, we conclude the agreement was unconscionable, rendering it unenforceable. I. BACKGROUND The relevant facts are not in dispute. Ken Kho was hired as a service technician for One Toyota of Oakland (One Toyota) in January 2010. Three years later, a human resources "porter" approached Kho in his workstation and asked him to sign several documents.

Kho was required to sign them immediately and return them to the porter, who waited in the workstation. It took Kho three or four minutes to sign them all. He had no opportunity to read them, nor were their contents explained. Kho's first language is Chinese. He was not given copies of the documents in either language.

One document was titled "Comprehensive Agreement-Employment At-Will and Arbitration." As the Court of Appeal observed, "Notwithstanding its designation as a 'comprehensive' employment contract, the one and one-quarter page contract is merely an arbitration clause grafted onto an acknowledgment of at-will employment." The contract's arbitration clause is contained in a dense, single-spaced paragraph, written in a very small typeface that fills almost an entire page. Subject to limited exceptions, nearly any employment-related claim made by either party must be submitted to binding arbitration.

Class or collective proceedings are generally prohibited. Arbitrations must be conducted before a retired superior court judge, pursuant to the California Arbitration Act ( Code Civ. Proc., § 1280 et seq. ), with full discovery permitted (see Code Civ. Proc., § 1283.05 ). Furthermore, "[t]o the extent applicable in civil actions in California courts," the agreement requires adherence to "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 allocation of arbitration costs is not addressed explicitly. Instead, the agreement refers to Code of Civil Procedure

section 1284.2, which generally provides that parties to an arbitration must bear their own expenses. But the agreement also states that "controlling case law" or statutes will prevail over Code of Civil Procedure

section 1284.2 if there is a conflict. Kho's employment ended in April 2014. Several months later, he filed a complaint with the Labor Commissioner for unpaid wages. At a settlement conference before a deputy labor commissioner, One Toyota was represented by counsel; Kho appeared in propria persona. One Toyota contends its attorney demanded arbitration at the conference, presenting Kho with a copy of the signed arbitration agreement, but Kho and the Labor Commissioner dispute this account. Kho rejected One Toyota's settlement offer and requested a Berman hearing.

The hearing was set in August 2015, some nine months later. On the Friday before the Monday Berman hearing, One Toyota filed a petition to compel arbitration and stay the administrative proceedings. It did not serve these papers on Kho. On the morning of the hearing, One Toyota's attorney notified the Labor Commissioner by fax of its petition and asked that the hearing be taken off calendar. The hearing officer refused. One Toyota's attorney appeared at the scheduled time but left after serving Kho for the first time with the petition to compel.

Proceeding without One Toyota, the hearing officer awarded Kho $102,912 in unpaid wages and $55,634 in liquidated damages, interest, and penalties. One Toyota sought to vacate the award. The Labor Commissioner intervened on Kho's behalf and opposed the motions to compel and vacate. One Toyota posted the required bond to permit de novo review of the award under Labor Code

section 98.2. (See post , 251 Cal.Rptr.3d at pp. 722-723, 447 P.3d at p. 687.) The trial court vacated the Labor Commissioner's award, concluding the hearing should not have proceeded in One Toyota's absence. The court did not compel arbitration, however.

It found a high degree of procedural unconscionability attended the agreement's execution, which "created oppression or surprise due to unequal bargaining power." The court also found the agreement substantively unconscionable under Sonic II because it "fails to provide a speedy, informal and affordable method of resolving wage claims and has virtually none of the benefits afforded by the Berman hearing procedure." The court observed, "Contrary to the assumption that arbitration is intended to provide an inexpensive, efficient procedure to vindicate rights, the agreement in this case seeks, in large part, to restore the procedural rules and procedures that create expense and delay in civil litigation." In light of this ruling, the court declined to address the Labor Commissioner's argument that One Toyota waived its right to arbitrate by waiting too long to claim it.

The Court of Appeal reversed. Although it noted an "extraordinarily high" degree of procedural unconscionability in the agreement's execution, it concluded the agreement was not substantively unconscionable. The agreement had no objectionable terms and could be considered " 'harsh or one-sided' only in comparison to the various features of the Labor Code that seek to level the playing field for wage claimants." The arbitration would be sufficiently affordable under Sonic II because laws external to the agreement require that employers pay both the costs of arbitration (see Armendariz v.

Foundation Health Psychcare Service, Inc. (2000) 24 Cal.4th 83, 99 Cal.Rptr.2d 745, 6 P.3d 669 ( Armendariz )) and a successful claimant's reasonable attorney fees (see Lab. Code, § 218.5 ). Though the selected arbitration procedure is more complex than a Berman hearing, the court observed that those hearings are nonbinding and can progress, at either side's request, to a de novo proceeding in superior court.

In specifying an arbitral process that resembles civil litigation, the agreement thus "anticipates a proceeding that is no more complex than will often be required to resolve a wage claim under the Berman procedures." This resolution made it unnecessary for the court to address the Labor Commissioner's cross-appeal from the order vacating her award. Finally, the court held that One Toyota did not forfeit its right to arbitrate because there was no showing of prejudice from the company's delay in seeking arbitration. II. DISCUSSION A.

The Berman Process Before addressing Kho's unconscionability defense, we review the statutory procedures he waived by agreeing to arbitration. We also consider the significance of that waiver in light of Sonic I and Sonic II . 1. Statutory Procedures Available to Wage Claimants The Labor Code provides an administrative procedure for recovery of unpaid wages. When an employer does not pay wages as required, the employee may either: (1) file a civil action in court, or (2) file a wage claim with the Labor Commissioner under sections 98 to 98.8.

The administrative option was added in 1976 (see Stats. 1976, ch. 1190, §§ 4-11, pp. 5368-5371) and is commonly known as a "Berman" hearing. If an employee files an administrative complaint, the Labor Commissioner may either accept the matter and conduct a Berman hearing ( § 98, subd. (a) ); prosecute a civil action on the employee's behalf (§ 98.3); or take "no further action ... on the complaint" ( § 98, subd. (a) ). The commissioner's staff may try to settle the complaint before holding a hearing or filing suit. (Dept. of Industrial Relations, Div. of Labor Stds.

Enforcement (DLSE), Policies and Procedures for Wage Claim Processing (2012 rev.) p. 2.) Subject to extensions of time, Berman hearings must generally be held within 90 days after a matter is accepted. ( § 98, subd. (a).) A Berman hearing is conducted by a deputy commissioner, who may issue subpoenas. ( Cal. Code Regs., tit. 8, §§ 13502, 13506.) The procedure "is designed to provide a speedy, informal, and affordable method of resolving wage claims." ( Cuadra v. Millan (1998) 17 Cal.4th 855, 858, 72 Cal.Rptr.2d 687, 952 P.2d 704 ( Cuadra ).) Pleadings are limited to a complaint and answer.

There is no discovery process. ( § 98, subd. (d).) Technical rules of evidence do not apply, and all 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 may assist the parties with cross-examination and explain issues and terms involved. (DLSE, Policies and Procedures for Wage Claim Processing, supra , at p. 3.) If necessary, a translator will be provided. (Ibid .; see § 105, subd. (b).) The claim must be decided within 15 days of the hearing. (§ 98.1, subd. (a).) Either party may appeal the decision to the superior court, which reviews the claim de novo. ( § 98.2, subd. (a).) An employer who appeals must post an undertaking in the amount of the award. (Id ., subd. (b).) On appeal, the Labor Commissioner may represent claimants "financially unable to afford counsel" and must represent any indigent claimant attempting to uphold the award while objecting to no part of it. (§ 98.4.) An unappealed decision is a final judgment, enforceable immediately. ( § 98.2, subds. (d), (e).) The commissioner is responsible for enforcement (id ., subd. (i)), which is entitled to court priority (id. , subd. (e)).

If an employer's appeal fails, the court determines costs and reasonable attorney fees incurred by the successful employee and orders payment by the losing appellant. ( § 98.2, subd. (c).) Claimants represented by the commissioner may still recover fees, consistent with the statute's goal of discouraging unmeritorious appeals. ( Lolley v.

Campbell (2002) 28 Cal.4th 367, 376-378, 121 Cal.Rptr.2d 571, 48 P.3d 1128 ( Lolley ).) "An employee is successful if the court awards an amount greater than zero." ( § 98.2, subd. (c).) The statute provides a one-way fee-shifting scheme: An unsuccessful employer must pay attorney fees but a successful one may not recover them. (See Arias v.

Kardoulias (2012) 207 Cal.App.4th 1429, 1435, 144 Cal.Rptr.3d 599.) This fee scheme differs from wage claims brought in superior court, where the "prevailing party" may obtain attorney fees. ( § 218.5, subd. (a).) The Berman process is optional for both claimants and the Labor Commissioner. Aggrieved employees may take their wage claims directly to superior court. (See § 218.) Likewise, the commissioner may decline to act on a filed complaint. (See § 98, subd. (a).) However, Berman procedures can significantly reduce the costs and risks of pursuing a wage claim.

They provide "an accessible, informal, and affordable" avenue for employees to seek resolution, with assistance available if necessary. ( Sonic II , supra , 57 Cal.4th at p. 1129, 163 Cal.Rptr.3d 269, 311 P.3d 184.) They discourage unmeritorious appeals through a bond requirement and a fee-shifting scheme that favors employees. (See id . at p. 1130, 163 Cal.Rptr.3d 269, 311 P.3d 184.) They permit the commissioner to represent claimants on appeal and facilitate award collection. (See ibid . ) 2.

The Sonic I and Sonic II Decisions Sonic I and Sonic II addressed the validity of predispute agreements requiring wage claim arbitration.

Sonic I held that it is against public policy for an employer to require employees to waive their Berman rights as a condition of employment, and that an arbitration agreement effectively waiving Berman rights is substantively unconscionable as a matter of law. ( Sonic I , supra , 51 Cal.4th at pp. 684-687, 121 Cal.Rptr.3d 58, 247 P.3d 130.) However, in construing the agreement to attempt to harmonize the competing policies at issue, Sonic I also held that parties could proceed to binding arbitration after they had completed a Berman hearing. ( Id . at p. 675, 121 Cal.Rptr.3d 58, 247 P.3d 130.) In other words, instead of pursuing a de novo appeal in superior court, a party dissatisfied with the Labor Commissioner's ruling could petition to compel arbitration. ( Id . at p. 676, 121 Cal.Rptr.3d 58, 247 P.3d 130.) Sonic I 's holdings were short-lived.

Two months later, on a related question, Concepcion , supra , 563 U.S. 333, 131 S.Ct. 1740 abrogated our holding from Discover Bank v.

Superior Court (2005) 36 Cal.4th 148, 30 Cal.Rptr.3d 76, 113 P.3d 1100 that class arbitration waivers in consumer contracts are unconscionable. ( Concepcion , at pp. 341-344, 131 S.Ct. 1740.) The high court explained that the "overarching purpose of the FAA ... is to ensure the enforcement of arbitration agreements according to their terms so as to facilitate streamlined proceedings." ( Id . at p. 344, 131 S.Ct. 1740.) Because Discover Bank 's classwide arbitration rule interfered with the "fundamental attributes of arbitration," such as efficiency and informality, it was preempted as inconsistent with the FAA. ( Concepcion , at p. 344, 131 S.Ct. 1740.) Thereafter, the court vacated the Sonic I judgment and remanded for our consideration in light of Concepcion . ( Sonic-Calabasas A, Inc. v.

Moreno (2011) 565 U.S. 973, 132 S.Ct. 496, 181 L.Ed.2d 343.) On remand, we acknowledged the Supreme Court's admonition that states "cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons." ( Concepcion , supra , 563 U.S. at p. 351, 131 S.Ct. 1740 ; see Sonic II , supra , 57 Cal.4th at p. 1141, 163 Cal.Rptr.3d 269, 311 P.3d 184.) Because the court identified efficiency as a hallmark of arbitration under the FAA, Concepcion taught that "courts cannot impose unconscionability rules that interfere with arbitral efficiency, including rules forbidding waiver of administrative procedures that delay arbitration." ( Sonic II , at p. 1141, 163 Cal.Rptr.3d 269, 311 P.3d 184 ; see Concepcion , at pp. 344-345, 131 S.Ct. 1740.) Accordingly, Sonic I 's categorical rule prohibiting a waiver of Berman procedures was preempted. ( Sonic II , at pp. 1139-1141, 163 Cal.Rptr.3d 269, 311 P.3d 184.) Nevertheless, we noted that unconscionability remains a valid defense to enforcement, even after Concepcion .

The overarching unconscionability question is whether an agreement is imposed in such an unfair fashion and so unfairly one-sided that it should not be enforced. Arbitration agreements could not be deemed categorically unconscionable simply because they entail a waiver of the Berman proceedings. ( Sonic II , supra , 57 Cal.4th at p. 1146, 163 Cal.Rptr.3d 269, 311 P.3d 184.) However, we provided that an employee's Berman waiver, while not dispositive, remains a significant factor in considering unconscionability.

An agreement's failure to "provide an employee with an accessible and affordable arbitral forum for resolving wage disputes may support a finding of unconscionability.

As with any contract, the unconscionability inquiry requires a court to examine the totality of the agreement's substantive terms as well as the circumstances of its formation to determine whether the overall bargain was unreasonably one-sided." ( Ibid . ) The Sonic II majority opinion focused repeatedly on the need for accessible and affordable arbitration, reasoning that these were key benefits of the Berman process that parties to an arbitration agreement had decided to forgo.

We stopped short of defining the requirements for an acceptable arbitration framework, however, and emphasized that arbitration can be structured in various ways "so that it facilitates accessible, affordable resolution of wage disputes," without necessarily replicating Berman protections. ( Sonic II , supra , 57 Cal.4th at p. 1147, 163 Cal.Rptr.3d 269, 311 P.3d 184.) So long as the arbitral procedure is relatively "low-cost" ( ibid . ) and provides a forum for wage claimants "to pursue their claims effectively" ( ibid . ), its adoption in lieu of the Berman process will not, in itself, be considered unconscionable ( id . at pp. 1147-1148, 163 Cal.Rptr.3d 269, 311 P.3d 184 ).

In short, when an adhesion contract requires arbitration, "the unconscionability inquiry focuses on whether the arbitral scheme imposes costs and risks on a wage claimant that make the resolution of the wage dispute inaccessible and unaffordable," thus effectively blocking every forum for redress including arbitration itself. ( Id . at p. 1148, 163 Cal.Rptr.3d 269, 311 P.3d 184.) We did not decide whether the Sonic II agreement was substantively unconscionable under this standard.

Recognizing that unconscionability is a fact-specific defense, we remanded for the trial court to examine additional evidence regarding the particulars of the arbitration process set out in the agreement. ( Sonic II , supra , 57 Cal.4th at pp. 1147-1148, 163 Cal.Rptr.3d 269, 311 P.3d 184.) B. Unconscionability of the Arbitration Agreement California law strongly favors arbitration. Through the comprehensive provisions of the California Arbitration Act ( Code Civ.

Proc., § 1280 et seq. ), "the Legislature has expressed a 'strong public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution.' " ( Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9, 10 Cal.Rptr.2d 183, 832 P.2d 899 ( Moncharsh ).) As with the FAA ( 9 U.S.C. § 1 et seq. ), California law establishes "a presumption in favor of arbitrability." ( Engalla v.

Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 971, 64 Cal.Rptr.2d 843, 938 P.2d 903.) An agreement to submit disputes to arbitration "is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract." ( Code Civ. Proc., § 1281 ; see 9 U.S.C. § 2.) " '[G]enerally applicable contract defenses, such as ... unconscionability, may be applied to invalidate arbitration agreements without contravening' the FAA" or California law. ( Pinnacle Museum Tower Assn. v.

Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 246, 145 Cal.Rptr.3d 514, 282 P.3d 1217 ( Pinnacle ); see Concepcion , supra , 563 U.S. at p. 339, 131 S.Ct. 1740.) Unconscionability can take different forms depending on the circumstances and terms at issue.

However, the doctrine's application to arbitration agreements must rely on the same principles that govern all contracts. ( Sonic II , supra , 57 Cal.4th at p. 1133, 163 Cal.Rptr.3d 269, 311 P.3d 184.) The degree of unfairness required for unconscionability must be as rigorous and demanding for arbitration clauses as for any other contract clause. ( Ibid . ) The general principles of unconscionability are well established.

A contract is unconscionable if one of the parties lacked a meaningful choice in deciding whether to agree and the contract contains terms that are unreasonably favorable to the other party. ( Sonic II , supra , 57 Cal.4th at p. 1133, 163 Cal.Rptr.3d 269, 311 P.3d 184.) Under this standard, the unconscionability doctrine " 'has both a procedural and a substantive element.' " ( Ibid . ) "The procedural element addresses the circumstances of contract negotiation and formation, focusing on oppression or surprise due to unequal bargaining power. [Citations.] Substantive unconscionability pertains to the fairness of an agreement's actual terms and to assessments of whether they are overly harsh or one-sided." ( Pinnacle , supra , 55 Cal.4th at p. 246, 145 Cal.Rptr.3d 514, 282 P.3d 1217.) Both procedural and substantive unconscionability must be shown for the defense to be established, but "they need not be present in the same degree." ( Armendariz , supra , 24 Cal.4th at p. 114, 99 Cal.Rptr.2d 745, 6 P.3d 669.) Instead, they are evaluated on " 'a sliding scale.' " ( Ibid . ) "[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to" conclude that the term is unenforceable. ( Ibid . ) Conversely, the more deceptive or coercive the bargaining tactics employed, the less substantive unfairness is required. ( A & M Produce Co. v.

FMC Corp. (1982) 135 Cal.App.3d 473, 487, 186 Cal.Rptr. 114 ( A & M Produce ); see Carlson v. Home Team Pest Defense, Inc. (2015) 239 Cal.App.4th 619, 635, 191 Cal.Rptr.3d 29 ; Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 85, 171 Cal.Rptr.3d 42 ( Carmona ).) A contract's substantive fairness "must be considered in light of any procedural unconscionability" in its making. ( Sanchez v.

Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 912, 190 Cal.Rptr.3d 812, 353 P.3d 741 ( Sanchez ).) "The ultimate issue in every case is whether the terms of the contract are sufficiently unfair, in view of all relevant circumstances, that a court should withhold enforcement." ( Ibid . ) The burden of proving unconscionability rests upon the party asserting it. ( Sanchez , supra , 61 Cal.4th at p. 911, 190 Cal.Rptr.3d 812, 353 P.3d 741 ; Sonic II , supra , 57 Cal.4th at p. 1148, 163 Cal.Rptr.3d 269, 311 P.3d 184.) "Where, as here, the evidence is not in conflict, we review the trial court's denial of arbitration de novo." ( Pinnacle , supra , 55 Cal.4th at p. 236, 145 Cal.Rptr.3d 514, 282 P.3d 1217.) 1.

Procedural Unconscionability The Court of Appeal observed that the arbitration agreement's execution involved an "extraordinarily high" degree of procedural unconscionability. We agree. A procedural unconscionability analysis "begins with an inquiry into whether the contract is one of adhesion." ( Armendariz , supra , 24 Cal.4th at p. 113, 99 Cal.Rptr.2d 745, 6 P.3d 669.) An adhesive contract is standardized, generally on a preprinted form, and offered by the party with superior bargaining power "on a take-it-or-leave-it basis." ( Baltazar v.

Forever 21, Inc. (2016) 62 Cal.4th 1237, 1245, 200 Cal.Rptr.3d 7, 367 P.3d 6 ( Baltazar ); see Armendariz , at p. 113, 99 Cal.Rptr.2d 745, 6 P.3d 669.) Arbitration contracts imposed as a condition of employment are typically adhesive (see Armendariz , at pp. 114-115, 99 Cal.Rptr.2d 745, 6 P.3d 669 ; Serpa v. California Surety Investigations, Inc. (2013) 215 Cal.App.4th 695, 704, 155 Cal.Rptr.3d 506 ), and the agreement here is no exception.

The pertinent question, then, is whether circumstances of the contract's formation created such oppression or surprise that closer scrutiny of its overall fairness is required. (See Baltazar , at pp. 1245-1246, 200 Cal.Rptr.3d 7, 367 P.3d 6 ; Farrar v.

Direct Commerce, Inc. (2017) 9 Cal.App.5th 1257, 1267-1268, 215 Cal.Rptr.3d 785.) " ' "Oppression occurs where a contract involves lack of negotiation and meaningful choice, surprise where the allegedly unconscionable provision is hidden within a prolix printed form." ' " ( Pinnacle , supra , 55 Cal.4th at p. 247, 145 Cal.Rptr.3d 514, 282 P.3d 1217, italics added; see De La Torre v. CashCall, Inc. (2018) 5 Cal.5th 966, 983, 236 Cal.Rptr.3d 353, 422 P.3d 1004.) This record reveals both oppression and surprise.

"The circumstances relevant to establishing oppression include, but are not limited to (1) the amount of time the party is given to consider the proposed contract; (2) the amount and type of pressure exerted on the party to sign the proposed contract; (3) the length of the proposed contract and the length and complexity of the challenged provision; (4) the education and experience of the party; and (5) whether the party's review of the proposed contract was aided by an attorney." ( Grand Prospect Partners, L.P. v.

Ross Dress for Less, Inc. (2015) 232 Cal.App.4th 1332, 1348, fn. omitted, 182 Cal.Rptr.3d 235.) With respect to preemployment arbitration contracts, we have observed that "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, 99 Cal.Rptr.2d 745, 6 P.3d 669.) This economic pressure can also be substantial when employees are required to accept an arbitration agreement in order to keep their job.

Employees who have worked in a job for a substantial length of time have likely come to rely on the benefits of employment. For many, the sudden loss of a job may create major disruptions, including abrupt income reduction and an unplanned reentry into the job market. In both the prehiring and posthiring settings, courts must be "particularly attuned" to the danger of oppression and overreaching. ( Armendariz , at p. 115, 99 Cal.Rptr.2d 745, 6 P.3d 669 ; see Baltazar , supra , 62 Cal.4th at p. 1244, 200 Cal.Rptr.3d 7, 367 P.3d 6.) The circumstances here demonstrate significant oppression.

The agreement was presented to Kho in his workspace, along with other employment-related documents. Neither its contents nor its significance was explained. One Toyota admits that Kho was required to sign the agreement to keep the job he had held for three years. Because the company used a piece-rate compensation system, any time Kho spent reviewing the agreement would have reduced his pay.

Moreover, as the Court of Appeal explained, "Not only did One Toyota provide no explanation for its demand for his signature, it selected a low-level employee, a 'porter,' to present the Agreement, creating the impression that no request for an explanation was expected and any such request would be unavailing." By having the porter wait for the documents, One Toyota conveyed an expectation that Kho sign them immediately, without examination or consultation with counsel.

One Toyota protests that Kho did not ask questions about the agreement, but there is no indication that the porter had the knowledge or authority to explain its terms. (See Carmona , supra , 226 Cal.App.4th at pp. 84-85, 171 Cal.Rptr.3d 42.) Similarly, although One Toyota is correct that Kho did not attempt to negotiate, a complaining party need not show it tried to negotiate standardized contract terms to establish procedural unconscionability. ( Carbajal v.

CWPSC, Inc. (2016) 245 Cal.App.4th 227, 244, 199 Cal.Rptr.3d 332 ; see Sanchez , supra , 61 Cal.4th at p. 914, 190 Cal.Rptr.3d 812, 353 P.3d 741.) By its conduct, One Toyota conveyed the impression that negotiation efforts would be futile. Finally, Kho was not given a copy of the agreement he had signed. The facts also support the trial court's finding of surprise. The agreement is a paragon of prolixity, only slightly more than a page long but written in an extremely small font. The single dense paragraph covering arbitration requires 51 lines.

As the Court of Appeal noted, the text is "visually impenetrable" and "challenge[s] the limits of legibility." The substance of the agreement is similarly opaque. The sentences are complex, filled with statutory references and legal jargon. The second sentence alone is 12 lines long.

The arbitration paragraph refers to: the California Fair Employment and Housing Act; title VII of the Civil Rights Act of 1964; other unspecified "local, state or federal laws or regulations"; the National Labor Relations Act; the California Workers' Compensation Act; "California Small Claims" actions; the Department of Fair Employment and Housing; the Employment Development Department; the "Equal Opportunity Commission"; the federal and California arbitration acts; and six different sections of California's Civil Code and Code of Civil Procedure.

A layperson trying to navigate this block text, printed in tiny font, would not have an easy journey. With respect to arbitration costs, the agreement states: "If CCP § 1284.2 conflicts with other substantive statutory provisions or controlling case law, the allocation of costs and arbitrator fees shall be governed by said statutory provisions or controlling case law instead of CCP § 1284.2." Code of Civil Procedure

section 1284.2 states a default rule that, unless the agreement specifies otherwise, parties to an arbitration will bear their own expenses. However, Armendariz created an exception to this general rule for arbitrations of employment-related disputes. (See Armendariz , supra , 24 Cal.4th at pp. 110-111, 99 Cal.Rptr.2d 745, 6 P.3d 669.) Although the agreement anticipates that the "controlling case law" of Armendariz would prevail over the statutory default rule, One Toyota's obligation to pay arbitration-related costs would not be evident to anyone without legal knowledge or access to the relevant authorities. It is difficult to envision that Kho would have had any idea what the cited code

section says or that a 13-year-old case creates a relevant exception to it. This example illustrates the difficulty a layperson would have in deciphering key terms. It would have been nearly impossible to understand the contract's meaning without legal training and access to the many statutes it references. Kho had neither. Under these circumstances, Kho's signature attesting to have read and understood the agreement appears formulaic rather than informed. We agree with the Court of Appeal that the agreement appears to have been drafted with an aim to thwart, rather than promote, understanding.

The document itself and the manner of its presentation did not promote voluntary or informed agreement to its terms. "Arbitration is favored in this state as a voluntary means of resolving disputes, and this voluntariness has been its bedrock justification." ( Armendariz , supra , 24 Cal.4th at p. 115, 99 Cal.Rptr.2d 745, 6 P.3d 669 ; see Sandquist v.

Lebo Automotive, Inc. (2016) 1 Cal.5th 233, 252, 205 Cal.Rptr.3d 359, 376 P.3d 506.) Arbitration contracts are vigorously enforced out of respect for the parties' mutual and voluntary agreement to resolve disputes by this alternative means. (See, e.g., Moncharsh , supra , 3 Cal.4th at pp. 10-11, 10 Cal.Rptr.2d 183, 832 P.2d 899.) However, an inference of voluntary assent can be indulged only so far and must yield in the face of undisputed facts that undermine it. Where an employee is induced to sign an arbitration agreement through "sharp practices" and surprise (see Gentry v.

Superior Court (2007) 42 Cal.4th 443, 469, 64 Cal.Rptr.3d 773, 165 P.3d 556 ( Gentry )), the consent rationale carries less force. "[A]rbitration 'is a matter of consent, not coercion.' " ( Stolt-Nielsen S. A. v. AnimalFeeds Int'l Corp. (2010) 559 U.S. 662, 681, 130 S.Ct. 1758, 176 L.Ed.2d 605 ; see Lamps Plus, Inc. v. Varela (2019) --- U.S. ---- [139 S.Ct. 1407, 1415], 203 L.Ed.2d 636.) On this record, it is virtually impossible to conclude that Kho knew he was giving up his Berman rights and voluntarily agreeing to arbitration instead. 2.

Substantive Unconscionability Substantive unconscionability examines the fairness of a contract's terms. This analysis "ensures that contracts, particularly contracts of adhesion, do not impose terms that have been variously described as ' " 'overly harsh' " ' ( Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519, 1532 [60 Cal.Rptr.2d 138] ), ' "unduly oppressive" ' ( Perdue v.

Crocker National Bank (1985) 38 Cal.3d 913, 925 [216 Cal.Rptr. 345, 702 P.2d 503] ), ' "so one-sided as to 'shock the conscience' " ' ( Pinnacle [, supra ,] 55 Cal.4th [at p.] 246 [145 Cal.Rptr.3d 514, 282 P.3d 1217] ), or 'unfairly one-sided' ( Little [v.

Auto Stiegler, Inc. (2003) ] 29 Cal.4th [1064,] 1071 [130 Cal.Rptr.2d 892, 63 P.3d 979].) All of these formulations point to the central idea that the unconscionability doctrine is concerned not with 'a simple old-fashioned bad bargain' [citation], but with terms that are 'unreasonably favorable to the more powerful party.' " ( Sonic II , supra , 57 Cal.4th at p. 1145, 163 Cal.Rptr.3d 269, 311 P.3d 184.) Unconscionable terms " 'impair the integrity of the bargaining process or otherwise contravene the public interest or public policy' " or attempt to impermissibly alter fundamental legal duties. (Ibid .) They may include fine-print terms, unreasonably or unexpectedly harsh terms regarding price or other central aspects of the transaction, and terms that undermine the nondrafting party's reasonable expectations. ( Ibid . ; see Sanchez , supra , 61 Cal.4th at p. 911, 190 Cal.Rptr.3d 812, 353 P.3d 741.) These examples are illustrative, not exhaustive.

Substantive terms that, in the abstract, might not support an unconscionability finding take on greater weight when imposed by a procedure that is demonstrably oppressive.

Although procedural unconscionability alone does not invalidate a contract, its existence requires courts to closely scrutinize the substantive terms "to ensure they are not manifestly unfair or one-sided." ( Gentry , supra , 42 Cal.4th at p. 469, 64 Cal.Rptr.3d 773, 165 P.3d 556.) We hold that, given the substantial procedural unconscionability here, even a relatively low degree of substantive unconscionability may suffice to render the agreement unenforceable. ( Carmona , supra , 226 Cal.App.4th at p. 85, 171 Cal.Rptr.3d 42 ; A & M Produce , supra , 135 Cal.App.3d at p. 487, 186 Cal.Rptr. 114 ; see Armendariz , supra , 24 Cal.4th at p. 114, 99 Cal.Rptr.2d 745, 6 P.3d 669.) Kho and the Labor Commissioner do not focus on the fairness of specific, isolated terms in the agreement.

Rather, they contend One Toyota's arbitral process is so inaccessible and unaffordable, considered as a whole, that it does not offer an effective means for resolving wage disputes. (See Sonic II , supra , 57 Cal.4th at p. 1146, 163 Cal.Rptr.3d 269, 311 P.3d 184.) This is a close question, which cannot be resolved in the abstract. It is important to stress that the waiver of Berman procedures does not, in itself, render an arbitration agreement unconscionable.

However, a substantive unconscionability analysis is sensitive to "the context of the rights and remedies that otherwise would have been available to the parties." ( Sanchez , supra , 61 Cal.4th at p. 922, 190 Cal.Rptr.3d 812, 353 P.3d 741.) We must examine both the features of dispute resolution adopted as well as the features eliminated. ( Sonic II , supra , 57 Cal.4th at p. 1146, 163 Cal.Rptr.3d 269, 311 P.3d 184.) As to accessibility, Kho first observes that, unlike in Berman proceedings, the agreement does not explain how to initiate arbitration.

Industrial Welfare Commission (IWC) wage orders, required by law to be posted at the jobsite ( Lab. Code, § 1183, subd. (d) ), direct employees to contact the Labor Commissioner about wage-related violations, providing for this purpose both the Department of Industrial Relations website and a list of local labor commissioner offices. (See, e.g., IWC wage order No. 4-2001 ( Cal. Code Regs., tit. 8, § 11040 ); IWC wage order No. MW-2019 ( Cal. Code Regs., tit. 8, § 11000 ).) An employee can start the Berman process by filling out a simple form found on the website and in local offices.

The form is rendered in many languages, and detailed instructions explain how to complete and file it. In contrast, One Toyota's agreement does not mention how to bring a dispute to arbitration, nor does it suggest where that information might be found. Commercial arbitration providers, for example, frequently provide standardized forms to start the process. Employees can also contact the provider for information on claim initiation. The agreement here, however, identifies no commercial providers. In fact, it does not mention that such providers exist.

It mandates that the arbitrator be a "retired California Superior Court Judge" but gives no indication how an employee might find such a person, let alone one willing to arbitrate a wage claim. Although some employees might pursue other avenues for relief and reach arbitration after encountering a motion to compel, these additional steps will inevitably increase the delay and expense involved. Other employees may be so confused by the agreement that they are deterred from bringing their wage claims at all.

Kho also contends it would be difficult for an unsophisticated, unrepresented wage claimant to effectively navigate the agreement's arbitral procedure. In the Berman process, a claimant need only fill out a complaint form, possibly assisted by a deputy labor commissioner, then attend a settlement conference and, in some cases, a hearing. (See Sonic II , supra , 57 Cal.4th at p. 1128, 163 Cal.Rptr.3d 269, 311 P.3d 184.) By contrast, in the arbitration provided for here, the complaint must be framed in a legal pleading, and the claimant must respond to discovery demands and dispositive motions.

Whereas a Berman hearing is conducted by a deputy labor commissioner, who can explain terminology and assist with witness examination (see ibid . ), the arbitration here must be conducted by a retired superior court judge, with procedures similar to a formal civil trial. Evidence must conform to technical rules of evidence, whereas all relevant evidence is typically admitted in Berman hearings. (See ibid . ; Cal.

Code Regs., tit. 8, § 13502.) Collection is also simplified in the Berman context because the Labor Commissioner is responsible for enforcing the judgment. ( § 98.2, subd. (i).) Or, if the employer unsuccessfully appeals the Labor Commissioner's award, the claimant can collect on a posted bond. ( § 98.2, subd. (b).) In arbitration, a successful claimant must petition to confirm the award and reduce it to an enforceable judgment. ( Code Civ.

Proc., §§ 1285, 1287.4.) The Berman process was specifically designed to give claimants a "speedy, informal, and affordable method" for resolving wage disputes. ( Cuadra , supra , 17 Cal.4th at p. 858, 72 Cal.Rptr.2d 687, 952 P.2d 704.) The process advances "the very objectives of 'informality,' 'lower costs,' 'greater efficiency and speed,' and use of 'expert adjudicators' that the high court has deemed 'fundamental attributes of arbitration.' " ( Sonic II , supra , 57 Cal.4th at p. 1149, 163 Cal.Rptr.3d 269, 311 P.3d 184 ; see Concepcion , supra , 563 U.S. at pp. 344, 348, 131 S.Ct. 1740.) By contrast, the arbitration provided for here incorporates the intricacies of civil litigation.

An employee must surrender the benefits and efficiencies of the Berman process but does not gain in return any of the efficiencies or cost savings often associated with arbitration. We observed in Little v. Auto Stiegler, Inc. , supra , 29 Cal.4th at page 1075, footnote 1, 130 Cal.Rptr.2d 892, 63 P.3d 979, that litigation-like procedures, on their own, are not necessarily so one-sided as to make an arbitration agreement unconscionable. We certainly do not now suggest that a system of statutory and common law carefully crafted to ensure fairness to both sides, and subject to continuous review, is per se unfair.

However, that carefully crafted process can be costly, complex, and time-consuming. It is the opportunity to expedite and simplify the process that can motivate informed parties to agree to arbitration.

Furthermore, Little 's observation was made in the context of a suit alleging wrongful demotion and discharge. ( Id . at p. 1069, 130 Cal.Rptr.2d 892, 63 P.3d 979.) For such claims, it may well be that an arbitration process closely resembling civil litigation can be as advantageous for the employee as for the employer. (See id . at p. 1075, fn. 1, 130 Cal.Rptr.2d 892, 63 P.3d 979.) There is no Berman-like administrative process for wrongful discharge claims. Our cases have taken a different approach in evaluating the compelled arbitration of wage claims, as compared to the arbitration of other types of disputes.

Employees who agree to arbitrate claims for unpaid wages forgo not just their right to litigate in court, but also their resort to an expedient, largely cost-free administrative procedure.

We explained repeatedly in Sonic II that, while the waiver of Berman procedures does not in itself render an arbitration agreement unconscionable, the agreement must provide in exchange an accessible and affordable forum for resolving wage disputes. ( Sonic II , supra , 57 Cal.4th at pp. 1146, 1147-1148, 1150, 163 Cal.Rptr.3d 269, 311 P.3d 184.) No specific procedures are required. (See id . at pp. 1147, 1170-1171, 163 Cal.Rptr.3d 269, 311 P.3d 184.) But the arbitral scheme must offer employees an effective means to pursue claims for unpaid wages, and not impose unfair costs or risks on them or erect other barriers to the vindication of their statutory rights. (See id . at pp. 1142, 1147-1148, 1157-1158, 163 Cal.Rptr.3d 269, 311 P.3d 184.) When imposed in a procedurally unconscionable fashion, such barriers to the vindication of rights may become unenforceable.

It is true, as One Toyota notes, that the results of a Berman hearing are nonbinding. An appeal by either party will bring the parties to the superior court for de novo review, where litigation formalities may apply.

But, as Sonic II explained, the prospect of an appeal does not negate the efficiency or accessibility of the Berman process. ( Sonic II , supra , 57 Cal.4th at pp. 1160-1162, 1167, 163 Cal.Rptr.3d 269, 311 P.3d 184.) Appeals are discouraged by the requirement that employers post a bond ( § 98.2, subd. (b) ) and pay the costs and attorney fees on appeal of any employee who recovers even a minimal amount (see § 98.2, subd. (c) ; Lolley , supra , 28 Cal.4th at p. 376, 121 Cal.Rptr.2d 571, 48 P.3d 1128 ).

If the employer does appeal, Berman claimants who cannot afford counsel may be represented by the Labor Commissioner. Representation in a de novo appeal is guaranteed for indigent claimants who do not object to the commissioner's final order. (§ 98.4.) Absent the agreement, Kho may well have been represented by the Labor Commissioner in any de novo appeal. Moreover, all claimants will have a better understanding of how to support their wage claims as a result of having the commissioner's assistance during the Berman process.

Because the complexity of One Toyota's arbitral process effectively requires that employees hire counsel, there is also force to Kho's argument that the procedure is not an affordable option.

An arbitration procedure may not impose such costs or risks on wage claimants that it " 'effectively blocks every forum for the redress of disputes, including arbitration itself.' " ( Sonic II , supra , 57 Cal.4th at p. 1148, 163 Cal.Rptr.3d 269, 311 P.3d 184.) As noted, Armendariz , supra , 24 Cal.4th 83, 99 Cal.Rptr.2d 745, 6 P.3d 669, requires that employers bear most arbitration costs, which, because they include the arbitrator's compensation, can be substantial. The Armendariz rule mitigates the unfairness of expecting that employees bear costs of a procedure to which they were required to agree.

Attorney fees are different, however, because they are not unique to arbitration. It is true that employees are free to hire counsel, or not, whether they pursue their claims in court or in arbitration. But wage claimants present a somewhat special case. These employees can secure free legal assistance from the Labor Commissioner, both at the Berman hearing and in any subsequent appeal. While all employees would likely benefit from having a lawyer in the litigation-like arbitration process here, only wage claimants have to pay for representation that was otherwise available to them for free.

One Toyota notes that employees who hire counsel for wage-claim arbitrations may be able to recover their legal fees under an applicable fee-shifting statute. (See Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1251, 140 Cal.Rptr.3d 173, 274 P.3d 1160.) For example,

section 218.5, subdivision (

a) requires the court to award reasonable attorney fees and costs to the prevailing party in "any action brought for the nonpayment of wages" if fees are requested "upon the initiation of the action." The parties do not dispute that

section 218.5 applies to most of Kho's claims. While

section 218.5 permits an award of fees to either employees or employers who prevail (see Kirby , at p. 1251, 140 Cal.Rptr.3d 173, 274 P.3d 1160 ), employers may recover fees "only if the court finds that the employee brought the court action in bad faith." ( § 218.5, subd. (a) ; see Arave v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (2018) 19 Cal.App.5th 525, 545, 228 Cal.Rptr.3d 120.) Although

section 218.5 may mitigate some financial burden, employees still face a risk that they will not be designated the prevailing party, rendering their fees unrecoverable. The prevailing party is the one that succeeds "on a ' "practical level" ' " and has " 'realized its litigation objectives.' " ( Sharif v.

Mehusa, Inc. (2015) 241 Cal.App.4th 185, 192, 193 Cal.Rptr.3d 644.) An employer might be deemed the prevailing party on a wage claim if the jury denies most or all of the wages sought, even if the employee prevails on other claims. (See ibid . ) In contrast, the Berman statutes provide fee-shifting to wage claimants who secure any monetary recovery in an employer's appeal. ( § 98.2, subd. (c).) Considering the simplified administrative procedures that can be navigated in propria persona, and the availability of the Labor Commissioner's representation and favorable fee-shifting in a de novo appeal, claimants can successfully complete the Berman process without paying a cent to an attorney.

The calculus is significantly different for employees in the arbitration process here, despite

section 218.5. Assuming they can find counsel willing to represent them in One Toyota's complex arbitral process, these employees will have to pay the attorney if they do not prevail and may have to pay their employer's attorney fees upon a finding of bad faith. (See § 218.5, subd. (a).) Moreover, since

section 218.5, subdivision (

a) requires a fee request "upon the initiation of the action," employees who hire counsel after filing suit or starting arbitration may unwittingly forfeit their right to fees by failing to make a timely request. Because the arbitration process here is no more complicated than ordinary civil litigation, it might be sufficiently accessible for wage claimants who are sophisticated, or affordable for those able to hire counsel. But an unconscionability analysis must be sensitive to context.

Context includes both the commercial setting and purpose of the arbitration contract and any procedural unconscionability in its formation. ( Sanchez , supra , 61 Cal.4th at pp. 911-912, 190 Cal.Rptr.3d 812, 353 P.3d 741.) As noted, the procedural unconscionability showing here is exceptionally strong. Although the same contract terms might pass muster under less coercive circumstances, a worker who is required to trade the Berman process for arbitration should at least have a reasonable opportunity to understand the bargain he is making.

Had One Toyota set out the terms of its agreement in a legible format and fairly understandable language, or had it given Kho a reasonable opportunity to seek clarification or advice, this would be a different case.

Ultimately, the question is whether Kho, through oppression and surprise, was coerced or misled into making an unfair bargain. (See Gentry , supra , 42 Cal.4th at pp. 469-470, 64 Cal.Rptr.3d 773, 165 P.3d 556 ; see also Sanchez , supra , 61 Cal.4th at p. 912, 190 Cal.Rptr.3d 812, 353 P.3d 741.) The substantive fairness of this particular agreement must be considered in terms of what Kho gave up and what he received in return. By signing the agreement, Kho surrendered the full panoply of Berman procedures and assistance we have described.

What he got in return was access to a formal and highly structured arbitration process that closely resembled civil litigation if he could figure out how to avail himself of its benefits and avoid its pitfalls. Considering the unusually coercive setting in which this bargain was entered, we conclude it was sufficiently one-sided as to render the agreement unenforceable. 3.

Consistency with Federal Law Our holding rests on generally applicable unconscionability principles and heeds Concepcion 's counsel that arbitration agreements be placed "on an equal footing with other contracts." ( Concepcion , supra , 563 U.S. at p. 339, 131 S.Ct. 1740.) Nevertheless, our dissenting colleague renews several of the preemption arguments he made in Sonic II , insisting once again that this court's approach to unconscionability contradicts the FAA and United States Supreme Court jurisprudence. (See Sonic II , supra , 57 Cal.4th at pp. 1184-1192, 163 Cal.Rptr.3d 269, 311 P.3d 184 (conc. & dis. opn. of Chin, J.).) We respectfully suggest these complaints are unfounded.

The dissent's primary objection is that our analysis evinces hostility to arbitration, discriminates against arbitration, or improperly prefers a nonarbitral forum. (Dis. opn., post , 251 Cal.Rptr.3d at pp. 762-763, 447 P.3d at pp. 720-722.) Yet arbitration is premised on the parties' mutual consent, not coercion (see Stolt-Nielsen S. A. v. AnimalFeeds Int'l Corp. , supra , 559 U.S. at p. 681, 130 S.Ct. 1758 ), and the manner of the agreement's imposition here raises serious concerns on that score.

Moreover, we have repeatedly stressed that the substantive unconscionability of an arbitration agreement "is viewed in the context of the rights and remedies that otherwise would have been available to the parties." ( Sanchez , supra , 61 Cal.4th at p. 922, 190 Cal.Rptr.3d 812, 353 P.3d 741, citing Sonic II , supra , 57 Cal.4th at pp. 1146-1148, 163 Cal.Rptr.3d 269, 311 P.3d 184.) The dissent supports its claim with repeated quotations to our observations about civil litigation , not the arbitral process under review.

The argument is thus premised on a false equivalence between the system of civil litigation and the complex arbitral procedure adopted in this case, which features few, if any, of the benefits typically associated with arbitration and regarded as fundamental. (See Concepcion , supra , 563 U.S. at pp. 344-345, 131 S.Ct. 1740.) While "the Berman statutes promote the very objectives of 'informality,' 'lower costs,' 'greater efficiency and speed,' and use of 'expert adjudicators' that the high court has deemed 'fundamental attributes of arbitration,' " the arbitration agreement here undermines those objectives by causing an "increase in cost, procedural rigor, complexity, or formality." ( Sonic II , supra , 57 Cal.4th at p. 1149, 163 Cal.Rptr.3d 269, 311 P.3d 184, quoting Concepcion , supra , 563 U.S. at p. 348, 131 S.Ct. 1740.) In comparing Berman's administrative process with One Toyota's arbitral procedure, we have simply evaluated the bargain at issue.

We have not said no arbitration could provide an appropriate forum for resolution of Kho's wage claim, but only that this particular arbitral process, forced upon Kho under especially oppressive circumstances and erecting new barriers to the vindication of his rights, is unconscionable. Citing the protracted appellate proceedings here, the dissent also complains that evaluating unconscionability claims will erect the type of "preliminary litigating hurdle" to arbitration the high court disfavored in American Express Co. v. Italian Colors Restaurant (2013) 570 U.S. 228, 239, 133 S.Ct. 2304, 186 L.Ed.2d 417.

For obvious reasons, the duration of this particular litigation can hardly be considered typical. Few cases progress to appeal, and vanishingly few reach this court. More importantly, the issue here is very different from that in Italian Colors .

Unlike the "judge-made exception to the FAA" the high court found problematic ( Italian Colors , at p. 235, 133 S.Ct. 2304 ), the unconscionability defense has long been recognized as a permissible ground for invalidating arbitration agreements under the FAA's savings clause. ( 9 U.S.C. § 2 ; see, e.g., Concepcion , supra , 563 U.S. at p. 339, 131 S.Ct. 1740 ; Doctor's Associates, Inc. v.

Casarotto (1996) 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902.) The FAA thus contemplates that unconscionability claims, like other state law contract defenses, will be resolved before arbitration is enforced. (See Sonic II , supra , 57 Cal.4th at p. 1167, 163 Cal.Rptr.3d 269, 311 P.3d 184.) If the defense cannot be addressed before arbitration, then the savings clause has no meaning.

The dissent also predicts delay from the case-by-case litigation of accessibility and affordability. (See dis. opn., post , at 251 Cal.Rptr.3d at pp. 766-767, 447 P.3d at p. 724.) But this is an argument with the unconscionability defense itself, which is inherently fact-specific. Once again, the dissent's view would all but eliminate the unconscionability defense to arbitration agreements, rendering the FAA's savings clause meaningless.

"Under the dissent's sweeping view of FAA preemption, no unconscionability rule may take into account the surrender of statutory protections for certain claimants, whether or not those protections interfere with fundamental attributes of arbitration." ( Sonic II , supra , 57 Cal.4th at p. 1168, 163 Cal.Rptr.3d 269, 311 P.3d 184.) We rejected that view in Sonic II and continue to do so.

Sonic II 's "unconscionability rule does not treat arbitration agreements differently from nonarbitration agreements, does not remotely foreclose the enforceability of agreements to arbitrate wage disputes, and does not require such agreements to adopt any devices or procedures inimical to arbitration's fundamental attributes." ( Id . at p. 1171, 163 Cal.Rptr.3d 269, 311 P.3d 184.) Our application of that rule today fully complies with the FAA and governing law. C. Status of the Labor Commissioner's Award As noted, the trial court granted One Toyota's motion to vacate the Labor Commissioner's award.

Because the Court of Appeal concluded the parties must arbitrate their wage dispute, it did not address the Labor Commissioner's cross-appeal from the order vacating her award. We consider the issue because the status of the Labor Commissioner's award has continuing significance on remand. As One Toyota acknowledges, the issuance of such an award has several consequences even if not reduced to an enforceable judgment.

When, as here, a de novo appeal is taken, the employer must post bond in the amount of the award. ( § 98.2, subd. (b).) Employees like Kho who do not contest any aspect of the award can be represented by the Labor Commissioner in the de novo proceedings (§ 98.4) and obtain attorney fees if they recover any amount. ( § 98.2, subd. (c) ; see Lolley , supra , 28 Cal.4th at p. 377, 121 Cal.Rptr.2d 571, 48 P.3d 1128.) Kho's access to these benefits on remand depends on the status of the Labor Commissioner's award. A properly vacated award could make these benefits unavailable.

However, it appears the order vacating the award was made in error. On the morning of the scheduled Berman hearing, One Toyota faxed the Labor Commissioner a letter. The company explained it had filed a petition to compel arbitration and requested the hearing be taken off calendar until arbitration was complete. The Labor Commissioner refused, proceeded with the hearing in One Toyota's absence, and made an award for Kho.

The trial court found that One Toyota was substantially justified in refusing to participate in the Berman hearing and that enforcing the award would violate One Toyota's right to a fair administrative hearing. The procedural posture here requires reversal of the trial court's order granting relief from the award. The court purportedly relied on Code of Civil Procedure

section 1094.5, subdivision (b). That statute authorizes a writ of mandate if an administrative tribunal "has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion." ( Code Civ. Proc., § 1094.5, subd. (b).) The difficulty is One Toyota did not petition for a writ of mandate. (See Code Civ. Proc., § 1094.5, subd. (a).) It simply filed a motion to vacate the award.

Moreover, administrative mandate applies only to the results of "a proceeding in which by law a hearing is required to be given ...." (Ibid ., italics added; see Keeler v. Superior Court (1956) 46 Cal.2d 596, 598-599, 297 P.2d 967.) There is no requirement that a Berman hearing be held on a wage complaint. The Labor Commissioner has discretion to hold a hearing, prosecute the case in court, or take "no further action ... on the complaint." ( Lab. Code, § 98, subd. (a).) Accordingly, Berman "hearings are not subject to review under Code of Civil Procedure

section 1094.5." ( Corrales v. Bradstreet (2007) 153 Cal.App.4th 33, 55, 62 Cal.Rptr.3d 440.) More fundamentally, One Toyota was not entitled to relief on its motion because it failed to exhaust its administrative remedies. The Labor Code outlines two alternatives for challenging a Berman award. (See Gonzalez v. Beck (2007) 158 Cal.App.4th 598, 605, 69 Cal.Rptr.3d 843.) First, either party can file an appeal in the superior court. ( § 98.2.) Second, a defendant who has failed to answer or appear in the Berman proceedings can apply to the Labor Commissioner for relief under Code of Civil Procedure

section 473. ( Lab. Code, § 98, subd. (f).) Although an application to the Labor Commissioner need not precede a de novo appeal (see Jones v. Basich (1986) 176 Cal.App.3d 513, 518, 222 Cal.Rptr. 26 ), this administrative recourse must be sought before a motion to vacate the commissioner's decision.

Section 98, subdivision (

f) states: "No right to relief, including the claim that the findings or award of the Labor Commissioner or judgment entered thereon are void upon their face, shall accrue to the defendant in any court unless prior application is made to the Labor Commissioner in accordance with this chapter." (See Gonzalez , at pp. 605-606, 69 Cal.Rptr.3d 843.) One Toyota tried to pursue both lines of attack. It filed a de novo appeal and made a motion to vacate.

Because it failed to seek relief from the Labor Commissioner, however, it was barred from obtaining the latter relief. ( § 98, subd. (f).) If One Toyota wished to halt the Berman proceedings while pursuing arbitration, it could have requested a stay. The filing of a petition to compel arbitration does not automatically stay ongoing proceedings; the party seeking arbitration must request one. ( Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1796, 13 Cal.Rptr.2d 678.) Under Code of Civil Procedure

section 1281.4, "[i]f an application has been made to a court of competent jurisdiction ... for an order to arbitrate a controversy which is an issue involved in an action or proceeding pending before a court of this State and such application is undetermined, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until the application for an order to arbitrate is determined ...." (Italics added.) One Toyota's petition to compel did, somewhat vaguely, ask the court to stay "this action," but it gave the court no opportunity to rule on its request.

The petition was filed with the court on the Friday before a Monday Berman hearing. One Toyota did not ask the court for an emergency stay in light of its late filing, and no stay order was actually issued before One Toyota's counsel unilaterally left the hearing. One Toyota argues the terms of Code of Civil Procedure

section 1281.4 do not apply because Berman proceedings are not "pending before a court of this State." This assertion undermines One Toyota's attempt to excuse its nonparticipation in the hearing and ignores the rule from Brock that a motion to compel does not effect an automatic stay. Moreover, even if the language of

section 1281.4 does not explicitly encompass proceedings before the Labor Commissioner, the superior court likely had the power to stay these administrative proceedings under Code of Civil Procedure

section 1281.8, subdivision (a), which authorizes a range of provisional remedies in aid of arbitration, including injunctive relief. Failing that, the court could have issued a stay under its inherent power. "[A] court ordinarily has inherent power, in its discretion, to stay proceedings when such a stay will accommodate the ends of justice." ( People v. Bell (1984) 159 Cal.App.3d 323, 329, 205 Cal.Rptr. 568.) As the court in Landis v.

North American Co. (1936) 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 explained, "the power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." One Toyota did not obtain a stay, but simply refused to participate in a hearing that had been set months before. Under these circumstances, the Labor Commissioner did not act improperly in proceeding with the hearing after One Toyota and its counsel chose to depart. Vacating that award was error.

Nevertheless, One Toyota properly appealed the award under

section 98.2, which forestalled the Labor Commissioner's decision, terminated her jurisdiction, and vested jurisdiction in the superior court. ( Murphy v. Kenneth Cole Productions, Inc. , supra , 40 Cal.4th at p. 1116, 56 Cal.Rptr.3d 880, 155 P.3d 284.) Although the appeal terminates the commissioner's jurisdiction, Kho will have the benefit of the Labor Code's post-Berman hearing protections on remand. (See §§ 98.2, 98.4.) III. DISPOSITION The decision of the Court of Appeal is reversed.

The matter is remanded for return to the trial court for proceedings on One Toyota's de novo appeal from the Labor Commissioner's award. We Concur: CANTIL-SAKAUYE, C. J. LIU, J. CUÉLLAR, J. KRUGER, J. GROBAN, J.

Dissenting Opinion by Justice Chin Today, the majority holds that an arbitration agreement is substantively unconscionable - and therefore unenforceable - precisely because it prescribes procedures that, according to the majority, have been "carefully crafted to ensure fairness to both sides." (Maj. opn., ante , 251 Cal.Rptr.3d at p. 732, 447 P.3d at p. 695.) If you find that conclusion hard to grasp and counterintuitive, so do I.

It is based on the majority's view that arbitration with such procedures, though not unaffordable or inaccessible in the abstract or "per se unfair" (maj. opn., ante , 251 Cal.Rptr.3d at p. 732, 447 P.3d at p. 695), is not as advantageous for employees with unpaid wage claims as the potentially multitiered, multistep, combined administrative and judicial statutory process known as the Berman procedure. I believe the majority's analysis and conclusion to be incorrect under state law in numerous respects.

I also believe the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq. ), as authoritatively construed in binding United States Supreme Court decisions, precludes the majority from invalidating this arbitration agreement based on its subjective view that, for the purpose of "vindicati[ng]" employees' "statutory rights," the prescribed arbitration procedure is not as effective as the statutory Berman procedure. (Maj. opn., ante , 251 Cal.Rptr.3d at p. 732, 447 P.3d at p. 696.) I therefore dissent.

DISCUSSION To explain why I do not join the majority, I begin by summarizing relevant state law unconscionability principles. I then explain my disagreement with the majority's view that "a relatively low degree of substantive" unfairness may be sufficient to render an arbitration agreement unenforceable on the grounds of unconscionability (maj. opn., ante , 251 Cal.Rptr.3d at p. 729, 447 P.3d at p. 693), and with the majority's analysis of procedural and substantive unconscionability.

Finally, I explain why I believe the majority's analysis and conclusion are inconsistent with, and therefore preempted by, the FAA, as the United States Supreme Court has construed that law. A. State Law Principles of Arbitration and Unconscionability. Several state law legal principles must guide our analysis. First, as the majority acknowledges, "California law strongly favors arbitration." (Maj. opn., ante , 251 Cal.Rptr.3d at p. 725, 447 P.3d at p. 689.) The clearest expression of this state policy 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, 88 Cal.Rptr.2d 366, 982 P.2d 229.) It creates "a presumption in favor of arbitrability [citation] and a requirement that an arbitration agreement must be enforced on the basis of state law standards that apply to contracts in general." ( Engalla v.

Permanente Medical Group , Inc. (1997) 15 Cal.4th 951, 971-972, 64 Cal.Rptr.2d 843, 938 P.2d 903.) The majority, after briefly mentioning arbitration's favored status under state law early in its opinion, essentially ignores this principle in its analysis and in its refusal to enforce the arbitration agreement here.

Second, although the doctrine of unconscionability, as a generally applicable contract defense, may be applied to invalidate an arbitration agreement, as the majority notes, the doctrine's "application" in the arbitration context "must rely on the same principles that govern all contracts," and "[t]he degree of unfairness required for unconscionability must be as rigorous and demanding for arbitration clauses as for any other contract clause." (Maj. opn., ante , 251 Cal.Rptr.3d at p. 725, 447 P.3d at p. 689.) Third, under our generally applicable principles of unconscionability, "[a] party cannot avoid a contractual obligation merely by complaining that the deal, in retrospect, was unfair or a bad bargain" ( Sanchez v.

Valencia Holding Co. , LLC (2015) 61 Cal.4th 899, 911, 190 Cal.Rptr.3d 812, 353 P.3d 741 ( Sanchez )) or by showing that the contract "gives one side a greater benefit" ( Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 246, 145 Cal.Rptr.3d 514, 282 P.3d 1217 ( Pinnacle )). Under state law, "[n]ot all one-sided contract provisions are unconscionable" ( Sanchez , at p. 911, 190 Cal.Rptr.3d 812, 353 P.3d 741 ), and even the "fact that the bargain is a very hard or unreasonable one is not generally sufficient per se to induce ... courts to interfere" ( Boyce v.

Fisk (1895) 110 Cal. 107, 116, 42 P. 473 ). Instead, the party seeking to invalidate an arbitration agreement must show "a substantial degree of unfairness beyond 'a simple old-fashioned bad bargain .' " ( Sonic-Calabasas A , Inc. v.

Moreno (2013) 57 Cal.4th 1109, 1160, 163 Cal.Rptr.3d 269, 311 P.3d 184, italics added ( Sonic II ).) The contract "must be 'so one-sided as to "shock the conscience" ' " ( Pinnacle , at p. 246, 145 Cal.Rptr.3d 514, 282 P.3d 1217 ), or, as alternatively formulated, " 'overly harsh,' 'unduly oppressive,' [or] 'unreasonably favorable.' " ( Sanchez , at p. 911, 190 Cal.Rptr.3d 812, 353 P.3d 741.) Fourth, "contracts of adhesion ... are indispensable facts of modern life" and "are generally enforced" even though they "contain a degree of procedural unconscionability." ( Gentry v.

Superior Court (2007) 42 Cal.4th 443, 469, 64 Cal.Rptr.3d 773, 165 P.3d 556 ( Gentry ); see AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 346-347, 131 S.Ct. 1740, 179 L.Ed.2d 742 ( Concepcion ) ["the times in which consumer contracts were anything other than adhesive are long past"].) "[A] contract of adhesion is fully enforceable according to its terms" unless it violates the "reasonable expectations of the weaker or 'adhering' party" or is "unduly oppressive or 'unconscionable.' " ( Graham v.

Scissor-Tail , Inc. (1981) 28 Cal.3d 807, 819, 820, 171 Cal.Rptr. 604, 623 P.2d 165 ( Graham ).) Fifth, the party seeking to avoid the contract must establish both procedural and substantive unconscionability, "the former focusing on ' "oppression" ' or ' "surprise" ' due to unequal bargaining power, the latter on ' "overly harsh" ' or ' "one-sided" ' results." ( Armendariz v.

Foundation Health Psychcare Services , Inc. (2000) 24 Cal.4th 83, 114, 99 Cal.Rptr.2d 745, 6 P.3d 669 ( Armendariz ).) Although both must be present, we have stated that "they need not be present in the same degree. 'Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves.' [Citations.] In other words, the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa." ( Ibid. ) B.

The Majority's Sliding Scale. At this point, I note my first concern about the majority's analysis: its assertion that "a relatively low degree of substantive unconscionability may suffice to render" an arbitration agreement "unenforceable" if the level of procedural unconscionability is "substantial." (Maj. opn., ante , 251 Cal.Rptr.3d at p. 729, 447 P.3d at p. 693.) To begin with, it is unclear what the majority means by "relatively low" (ibid. ), and the majority sheds no light on this question.

The majority's unadorned and unexplained assertion inevitably poses - but does not answer - the following questions: Low "relative[ ]" to what, and how "low" is enough? Nor do our precedents support or give meaning to the majority's statement.

The only decision from this court the majority cites for its assertion is Armendariz . (Maj. opn., ante , 251 Cal.Rptr.3d at pp. 729-730, 447 P.3d at p. 693.) However, the majority notably precedes this citation with a "see" signal, which is the signal we use to introduce decisions that provide only "weaker support" for a given proposition, i.e., decisions that, as here relevant, "only indirectly support the text" or contain "supporting dicta." (Cal.

Style Manual (4th ed. 2000) § 1:4, p. 9.) Clearly, then, the majority itself does not believe that Armendariz provides more than indirect and weak support for its view.

To the extent Armendariz bears on the issue, it states, as noted above, that the " 'sliding scale' " used in connection with procedural and substantive unconscionability " 'disregards the regularity of the procedural process of the contract formation ... in proportion to the greater harshness or unreasonableness of the substantive terms themselves.' [Citations.] In other words, the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa." ( Armendariz , supra , 24 Cal.4th at p. 114, 99 Cal.Rptr.2d 745, 6 P.3d 669.) As is obvious, the main point of this passage is that where the degree of substantive unconscionability is high - i.e., the contract terms are extremely harsh or unreasonable - "evidence of procedural unconscionability" becomes less important, i.e., a court may " 'disregard[ ] the regularity of the procedural process of the contract formation' " and find the contract unconscionable based solely on the high level of substantive unfairness. ( Ibid . ) This court's use of the phrase "vice versa" at the end of the second sentence ( ibid. ) means only that evidence of procedural unfairness becomes more important to a finding of unconscionability as the degree of substantive unfairness decreases.

That is not the same as saying that "a relatively low degree of substantive unconscionability may suffice" where the degree of procedural unconscionability is "substantial." (Maj. opn., ante , 251 Cal.Rptr.3d at p. 729, 447 P.3d at p. 693.) Notably, the majority cites not a single case in which we have applied Armendariz in the manner the majority now suggests.

Indeed, the very concept of "a relatively low degree of substantive unconscionability" (maj. opn., ante , 251 Cal.Rptr.3d at p. 729, 447 P.3d at p. 693) is inconsistent with our prior pronouncements that a court may not invalidate "one-sided contract provisions" upon a mere showing that "the deal, in retrospect, was unfair or a bad bargain" ( Sanchez , supra , 61 Cal.4th at p. 911, 190 Cal.Rptr.3d 812, 353 P.3d 741 ) or "gives one side a greater benefit" ( Pinnacle , supra , 55 Cal.4th at p. 246, 145 Cal.Rptr.3d 514, 282 P.3d 1217 ); that the contract "must be 'so one-sided as to "shock the conscience" ' " ( Id. at p. 246, 145 Cal.Rptr.3d 514, 282 P.3d 1217 ), or " 'overly harsh,' 'unduly oppressive,' [or] 'unreasonably favorable' " ( Sanchez , at p. 911, 190 Cal.Rptr.3d 812, 353 P.3d 741 ); and that the party alleging unconscionability must establish "a substantial degree of unfairness beyond 'a simple old-fashioned bad bargain ' " ( Sonic II , 57 Cal.4th at p. 1160, 163 Cal.Rptr.3d 269, 311 P.3d 184, italics added).

The majority's assertion that "a relatively low degree of substantive unconscionability may suffice" (maj. opn., ante , 251 Cal.Rptr.3d at p. 729, 447 P.3d at p. 693) simply cannot be squared with these principles, and the majority does not even attempt to do so. For its assertion, the majority more directly relies on two Court of Appeal decisions (maj. opn., ante , 251 Cal.Rptr.3d at p. 730, 447 P.3d at pp. 693-694), but neither is persuasive. In the first - Carmona v.

Lincoln Millennium Car Wash , Inc. (2014) 226 Cal.App.4th 74, 85, 171 Cal.Rptr.3d 42 - the Court of Appeal stated: "In light of the high degree of procedural unconscionability, even a low degree of substantive unconscionability could render the arbitration agreement unconscionable." But the court cited no authority of any kind to support this bare assertion. ( Ibid. ) And the statement was dictum because, in the very next sentence, the court stated that "[t]he degree of substantive unconscionability here was not particularly low." ( Ibid ., italics added.) In the second decision the majority cites - A & M Produce Co. v.

FMC Corp. (1982) 135 Cal.App.3d 473, 487, 186 Cal.Rptr. 114 ( A & M Produce ) - the Court of Appeal stated that the enforceability of a clause containing an "unreasonable risk reallocation[ ] ... is tied to the procedural aspects of unconscionability [citation] such that the greater the unfair surprise or inequality of bargaining power, the less unreasonable the risk reallocation which will be tolerated." But in making this statement, the court cited no supporting decision from either California or any other jurisdiction; indeed, it acknowledged that regarding "the importance of both" procedural and substantive unconscionability, there was "little California precedent directly on point." ( Ibid. ) Moreover, like the statement in Carmona , the statement in A & M was dictum, because the court never subsequently applied it in analyzing the unconscionability issue.

In any event, read carefully, the statement says no more than did Armendariz , i.e., that evidence of procedural unfairness becomes more important to a finding of unconscionability as the degree of substantive unfairness decreases.

Again, that is not the same as saying that "a relatively low degree of substantive unconscionability may suffice" where the degree of procedural unconscionability is "substantial." (Maj. opn., ante , 251 Cal.Rptr.3d at p. 729, 447 P.3d at p. 693.) Thus, neither A & M nor Carmona constitutes reasoned or persuasive support for the majority's view, and no published California decision has actually applied either that or a similar view to the facts of a case.

This is an important issue, because the majority's new rule will significantly impact the enforceability of virtually all mandatory, predispute arbitration agreements in the employment context.

This court has observed that "the economic pressure" employers exert "on all but the most sought-after employees" to sign such mandatory arbitration contracts "may be particularly acute," because the contract "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, 99 Cal.Rptr.2d 745, 6 P.3d 669 ; see Baltazar v.

Forever 21 , Inc. (2016) 62 Cal.4th 1237, 1245, 200 Cal.Rptr.3d 7, 367 P.3d 6 ( Baltazar ); Sanchez , supra , 61 Cal.4th at p. 919, 190 Cal.Rptr.3d 812, 353 P.3d 741 ; Sonic II , supra , 57 Cal.4th at p. 1134, 163 Cal.Rptr.3d 269, 311 P.3d 184 ; Sonic-Calabasas A , Inc. v. Moreno (2011) 51 Cal.4th 659, 685, 121 Cal.Rptr.3d 58, 247 P.3d 130 ( Sonic I ); Little v.

Auto Stiegler , Inc. (2003) 29 Cal.4th 1064, 1071, 130 Cal.Rptr.2d 892, 63 P.3d 979 ( Little ).) Given this observation, in the typical case of an employee who cannot afford to refuse or lose a job because of an arbitration requirement, even were the other procedural circumstances the majority discusses supported by the record and recognized as significant by our case law - considerations I address below - those circumstances would not make the degree of procedural unconscionability here higher in any analytically or legally relevant sense.

Supporting this view is the fact that the majority in Sonic I found a "significant element of procedural unconscionability" ( Sonic I , supra , 51 Cal.4th at p. 686, 121 Cal.Rptr.3d 58, 247 P.3d 130 ) based solely on the ground that "the agreement was one of adhesion and imposed as a condition of employment" ( id . at p. 685, fn. 10, 121 Cal.Rptr.3d 58, 247 P.3d 130 ). For this reason, the majority's assurance that an identical arbitration provision "might pass muster under less coercive circumstances" (maj. opn., ante , 251 Cal.Rptr.3d at p. 735, 447 P.3d at p. 697) rings hollow.

Because of the economic pressures faced by prospective and existing employees, the majority's finding of unconscionability

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