But Procedural Unconscionability Was Low.

        After Diaz and Martinez filed suit for various employment-related claims, their employer Hutchinson moved unsuccessfully to compel arbitration, and appealed.  Diaz et al. v. Hutchinson Aerospace & Industry, Inc., et al., B271563 (2/8  10/27/17) (Flier, Bigelow, Rubin) (unpublished).

        The Court of Appeal followed the template for analyzing unconscionability of the arbitration provision:  procedural unconscionability, substantive unconscionability, severance.  

          Procedural unconscionability:  low.  Simple contract of adhesion.

       Substantive unconscionability:  high.  The agreement was lop-sided, because the employer did not need to seek arbitration to obtain injunctive relief to enforce a confidentiality agreement.  And discovery was too limited to allow Diaz and Martinez to adequately vindicate their rights:  the agreement limited discovery to one set of 35 interrogatories, one set of document demands, one deposition, "and it expressly barred any further discovery."

        Severance:  multiple unconscionable provisions (two here) allowed the trial court, acting within an abuse of discretion standard, to refuse to sever unconscionable provisions.

        COMMENT:  Baltazar v. Forever 21, Inc., 62 Cal.4th 1237 (2016) allows a carve-out for an employer to reserve its statutory rights to seek provisional remedies in court during the pendency of arbitration — after all, that is allowed by Cal. Code of Civ. Proc., section 1281.8(b).  However, Baltazar didn't help the employer here, because the carve-out for injunctive relief was not limited to provisional remedies.