Stoker v. Blue Origin, LLC

Filed 4/24/26
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                         DIVISION THREE

 CRAIG STOKER,                              B344945

         Plaintiff and Respondent,          (Los Angeles County
                                            Super. Ct. No. 23STCV28816)
         v.

 BLUE ORIGIN, LLC, et al.,

         Defendants and Appellants.



      APPEAL from an order of the Superior Court of
Los Angeles County, Cherol J. Nellon, Judge. Affirmed.
      Davis Wright Tremaine, Thailia K. Sundaresan, Emilio G.
Gonzalez, and Arielle J. Spinner for Defendants and Appellants.
      Shegerian & Associates, Carney R. Shegerian, William
Reed, Anna Levine-Gronningsater, Justin Shegerian, and Jill
McDonnell for Plaintiff and Respondent.
      Gutierrez, Preciado & House and Calvin House for Civil
Justice Association of California as Amicus Curiae on behalf of
Defendants and Appellants.

                 ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗


       Plaintiff Craig Stoker was employed by defendant
Blue Origin, LLC from 2020 to 2022. After he was terminated,
Stoker sued Blue Origin and others (collectively, Blue Origin) for
a variety of employment claims, including sexual harassment in
violation of the Fair Employment and Housing Act (FEHA;
Gov. Code, § 12900 et seq.). Blue Origin moved to compel
arbitration of Stoker’s claims under a contractual arbitration
agreement, and Stoker opposed the motion, urging that the
complaint alleged a “sexual harassment dispute” within the
meaning of the federal Ending Forced Arbitration of Sexual
Assault and Sexual Harassment Act of 2021 (EFAA; 9 U.S.C.
§ 402, subd. (a)), and the arbitration provision was substantively
and procedurally unconscionable. The trial court concluded that
the EFAA applied, and thus Stoker could not be compelled to
arbitrate his claims. Blue Origin appealed.
       We affirm. As we discuss, the arbitration agreement is
substantively and procedurally unconscionable, and severance is
not appropriate in this case. We therefore affirm the order
denying the motion to compel arbitration without considering the
applicability of the EFAA to Stoker’s claims.




                                2
      FACTUAL AND PROCEDURAL BACKGROUND
I.    Stoker’s employment with Blue Origin.
       Blue Origin is a space exploration company that develops
rockets, engines, and spacecraft. It hired Stoker as a senior
director of program management in August 2020. When Stoker
was hired, he signed an employee agreement governing his
relationship with Blue Origin. As relevant here, section 6 of the
agreement required arbitration of many disputes that might arise
between the parties (the arbitration agreement), and section 7
contained severability and choice-of-law provisions. The issues
raised in this appeal pertain to the arbitration agreement, and
thus we describe its provisions in some detail.
       Section 6.1 describes the scope of the agreement to
arbitrate, as follows:
       “I understand and agree that all claims, disputes, or
controversies relating to or arising out of my employment with
the Company, except for the Excluded Claims listed below, shall
be determined by binding arbitration before a single, neutral
arbitrator. For purposes of this Arbitration Agreement under
Section 6, the term ‘Company’ includes Blue Origin, its parent,
subsidiaries, affiliates, successors or assigns, as well as their
current and former officers, directors, employees and agents.
       “This arbitration agreement applies to any and all claims,
disputes, or controversies between the Company and me,
including, without limitation, claims arising out of or relating to
my employment application and/or hiring process, employment
with the Company, and/or any termination of my employment,
claims for breach of this Agreement or otherwise relating to or
arising out of this Agreement, tort claims, breach of contract
claims, wage and hour claims including without limitation



                                3
under the Fair Labor Standards Act, the Washington Minimum
Wage Act and other Washington wage and hour statutes, and any
other federal, state, and local wage and hour statutes, fee claims,
claims under federal, state and local anti-discrimination, anti-
harassment, and anti-retaliation laws and all other statutes
governing the employment relationship, and any other
employment-related claims, whistleblower claims, and all claims
for violation of any federal, state, or other governmental law,
statute, regulations, or ordinance (collectively ‘Covered Claims’),
except for the following Excluded Claims:
       “(i) claims for unemployment benefits;
       “(ii) claims for workers’ compensation benefits;
       “(iii) claims for sexual harassment or sexual assault, except
if I choose voluntarily to arbitrate them under this Agreement;
       “(iv) claims that governing federal law, or a benefits-plan
policy, prohibits from being arbitrated;
       “(v) claims for equitable relief alleging trade secret
violations, trademark infringement, breach of fiduciary duty,
breach of proprietary information or confidentiality obligations,
and breach of non-solicitation agreements for which either party
may seek equitable relief such as a temporary restraining order
or preliminary injunction from a court of competent jurisdiction,
prior to arbitrating the claim(s); and
       “(vi) actions to confirm, vacate, modify, or correct an
arbitrator’s award.”
       Section 6.3 of the agreement waives Stoker’s right to
pursue class or representative claims against Blue Origin. It
says: “The Company and I will resolve Claims only on an
individual basis. This means that no Claims, including
arbitration of Covered Claims or cause of action in court for




                                 4
Excluded Claims, will be initiated or maintained as a class
action, collective action, consolidated action, representative
action, or multi-party actions (together ‘Collective Actions’). The
Company and I waive the right to participate in, or receive money
or other relief from, a Collective Action. Neither the Company
nor I may bring a Claim on behalf of others. No arbitrator or
judge may combine more than one individual’s Claim(s) into a
single arbitration or court proceeding without all parties’ written
consent. Under the terms of this Agreement, no arbitrator or
judge may: (i) order or permit any arbitration-related notice or
information to be sent to any class, collective, representative or
consolidated group; or (ii) require a party to produce any contact
information for any class, collective, representative, or
consolidated group.
       “FURTHER, TO THE EXTENT THAT ANY CLAIM IS
EXCLUDED FROM ARBITRATION UNDER THIS SECTION 6
AND/OR IS DETERMINED NOT TO BE SUBJECT TO
ARBITRATION, THE COMPANY AND I EXPRESSLY AGREE
THAT ANY SUCH CLAIMS SHALL BE CONDUCTED ON AN
INDIVIDUAL BASIS ONLY, AND THE COMPANY AND I
WAIVE OUR RIGHTS TO ASSERT CLAIMS ON CLASS,
COLLECTIVE, OTHER REPRESENTATIVE, OR MULTI-
PARTY ACTIONS.”
       Section 6.4 of the agreement waives Stoker’s right to a jury
trial in any action against the company. It says: “I understand
and agree that this binding arbitration procedure shall supplant
and replace claims brought in state or federal court (except as
specified in this Section), and that the Company and I expressly
waive the right to a civil court action before a jury.




                                5
       “FURTHER, TO THE EXTENT THAT ANY CLAIM IS
EXCLUDED FROM ARBITRATION UNDER THIS SECTION 6
AND/OR IS DETERMINED NOT TO BE SUBJECT TO
ARBITRATION, THE COMPANY AND I EXPRESSLY AGREE
THAT THE CLAIM SHALL BE TRIED TO THE COURT AND
THAT ANY RIGHT TO JURY TRIAL IS WAIVED.”
       Section 7.2 of the agreement requires severance of any
illegal provisions. It says: “This Agreement will be enforced to
the fullest extent permitted by applicable law. If for any reason
any provision of this Agreement is held to be invalid or
unenforceable to any extent under applicable law by a court of
competent jurisdiction or in any arbitration proceeding, then
(a) such provision will be interpreted, construed, modified,
amended or reformed by the court or arbitrator to the minimum
extent required to render the same valid, enforceable and
consistent with the original intent underlying such provision, and
(b) such invalidity or unenforceability will not affect any other
provision of this Agreement or any other agreement between the
Company and me. If a court or arbitrator declines to modify,
amend, or reform any such provision as provided for in this
paragraph, such invalidity or unenforceability shall attach only
to such provision or portion thereof, and shall not in any way
affect or render invalid or unenforceable any other provision of
this Agreement or portion thereof, and this Agreement shall be
enforceable in full force and effect as if such invalid or
unenforceable provision or portion thereof had not been included
in this Agreement.”
       Finally, section 7.6 of the agreement provides that
arbitration will be governed by the Federal Arbitration Act




                                6
(9 U.S.C. § 1 et seq.), and that any claims excluded from
arbitration will be subject to the law of Washington state.
II.   Stoker’s termination; the present action.
      A.    Complaint.
      Stoker was terminated in October 2022 after making a
series of complaints about the company’s safety practices. In
November 2023, Stoker filed the present action alleging causes of
action for retaliation, sexual/gender discrimination,
sexual/gender harassment, failure to prevent discrimination and
harassment, breach of contract, negligent hiring, wrongful
termination, and intentional infliction of emotional distress.
      B.    Motion to compel arbitration.
      Blue Origin moved to compel arbitration. Blue Origin
acknowledged that sexual harassment claims were not subject to
mandatory arbitration under the arbitration agreement’s terms
and the EFAA, but it urged that Stoker’s allegations were too
“bare” to constitute sexual harassment as a matter of law. It also
contended the arbitration agreement was neither procedurally
nor substantively unconscionable.
      Stoker opposed the motion to compel. He contended that
the arbitration agreement was unenforceable under the EFAA
because the complaint alleged a viable gender harassment
dispute within the meaning of the statute. Alternatively, Stoker
urged the arbitration agreement was procedurally
unconscionable because it was a contract of adhesion, and it was
substantively unconscionable because it required Stoker to
arbitrate all claims (not merely those related to his employment)
against Blue Origin and its parents, subsidiaries, affiliates, and
current and former employees; excluded from arbitration those



                                 7
claims Blue Origin was most likely to bring against Stoker, while
including those claims Stoker was most likely to bring against
Blue Origin; waived Stoker’s right to bring a claim under the
Private Attorneys General Act (Lab. Code, § 2698 et seq.); and
contained an invalid choice-of-law provision, forum selection
clause, and attorney fee provision.
       The trial court concluded that the EFAA applied and, thus,
it denied the motion to compel. The court noted that the
complaint alleged that Stoker believed his safety complaints were
ignored because of his gender—because Blue Origin’s employees
believed Stoker should “ ‘man up.’ ” Thus, “accepting Plaintiff’s
allegations as true, the Court finds that the facts alleged
sufficiently state that Plaintiff suffered discrimination because of
his gender.” Because the trial court found the arbitration
agreement was unenforceable under the EFAA, it did not
consider whether it was also unconscionable.
       Blue Origin timely appealed from the order denying the
motion to compel arbitration.
                          DISCUSSION
      Blue Origin contends that the EFAA applies only if a
sexual harassment claim is “plausibly” pled. It thus asserts the
EFAA does not apply in the present case because although the
complaint arguably pled a plausible claim of sexual
discrimination, it did not plausibly plead a claim of sexual
harassment. Alternatively, Blue Origin contends the arbitration
agreement is not substantively or procedurally unconscionable.
      Stoker urges that the EFAA does not require a sexual
harassment claim be “plausibly” pled, but only that it be
“nonfrivolous.” In any event, Stoker contends the complaint
states a claim for sexual harassment under either standard, and



                                 8
thus the EFAA precluded the trial court from granting the
motion to compel arbitration. Alternatively, Stoker asserts that
the motion was properly denied because the arbitration
agreement was procedurally and substantively unconscionable.
      As we discuss, the arbitration agreement is both
substantively and procedurally unconscionable, and its
unconscionable elements cannot be severed. We therefore
conclude that the arbitration agreement is not enforceable.1
Because we so conclude, we do not consider whether the EFAA
applies to this dispute.
I.    Appealability and standard of review.
       Code of Civil Procedure section 1281.2 provides: “On
petition of a party to an arbitration agreement alleging the
existence of a written agreement to arbitrate a controversy and
that a party to the agreement refuses to arbitrate that
controversy, the court shall order the petitioner and the
respondent to arbitrate the controversy if it determines that an
agreement to arbitrate the controversy exists . . . .”
       “ ‘The trial court may resolve motions to compel arbitration
in summary proceedings, in which . . . “the trial court sits as a
trier of fact, weighing all the affidavits, declarations, and other
documentary evidence, as well as oral testimony received at the
court’s discretion, to reach a final determination.” ’ ” (Mendoza v.
Trans Valley Transport (2022) 75 Cal.App.5th 748, 763–764.)
The party seeking to compel arbitration bears the burden of

1     Where the facts are undisputed, a Court of Appeal may
consider unconscionability in the first instance. (Pinela v.
Nieman Marcus Group, Inc. (2015) 238 Cal.App.4th 227, 241.)
We elect to do so here.




                                 9
proving the existence of an arbitration agreement, and the party
opposing arbitration bears the burden of proving any defense.
(Nielsen Contracting, Inc. v. Applied Underwriters, Inc. (2018)
22 Cal.App.5th 1096, 1106; Pinnacle Museum Tower Assn. v.
Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223,
236 (Pinnacle).)
      An order denying a petition to compel arbitration is an
appealable order. (Code Civ. Proc., § 1294, subd. (a).) Because
the evidence is not in conflict, our review is de novo. (Ramirez v.
Charter Communications, Inc. (2024) 16 Cal.5th 478, 493
(Ramirez).)
II.   The arbitration agreement is procedurally and
      substantively unconscionable.
      A.    Legal principles.
      Arbitration agreements are contracts, and thus they are
subject to generally applicable contract defenses, such as
unconscionability. (Ramirez, supra, 16 Cal.5th at p. 492; OTO,
L.L.C. v. Kho (2019) 8 Cal.5th 111, 125 (Kho); Pinnacle, supra,
55 Cal.4th at p. 246.) “ ‘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.’ (Kho, supra, 8 Cal.5th at p. 125.)” (Fuentes v.
Empire Nissan, Inc. (2026) 19 Cal.5th 93, 102–103 (Fuentes).)
      Unconscionability has both a substantive and procedural
element. (Fuentes, supra, 19 Cal.5th at p. 103.) “ ‘The procedural
element addresses the circumstances of contract negotiation and
formation, focusing on oppression or surprise due to unequal
bargaining power.’ ” (Kho, supra, 8 Cal.5th at p. 125.) This
element “is generally established by showing the agreement is a




                                10
contract of adhesion, i.e., a ‘standardized contract which, imposed
and drafted by the party of superior bargaining strength,
relegates to the subscribing party only the opportunity to adhere
to the contract or reject it.’ ” (Ramirez, supra, 16 Cal.5th at
p. 492.) 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.)” (Kho, at p. 125.)
       “Both procedural and substantive unconscionability must
be shown for the defense to be established, but ‘they need not be
present in the same degree.’ [Citation.] Instead, they are
evaluated on ‘ “a sliding scale.” ’ [Citation.] ‘[T]he more
substantively oppressive the contract term, the less evidence of
procedural unconscionability is required to’ conclude that the
term is unenforceable. [Citation.] Conversely, the more
deceptive or coercive the bargaining tactics employed, the less
substantive unfairness is required. [Citation.] A contract’s
substantive fairness ‘must be considered in light of any
procedural unconscionability’ in its making.” (Kho, supra,
8 Cal.5th at p. 125.) “ ‘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.’ ” (Fuentes, supra, 19 Cal.5th at p. 103.) The
burden of proving unconscionability rests upon the party
asserting it. (Kho, at p. 126.)




                                11
      B.    The arbitration agreement is procedurally
            unconscionable.
      We begin by considering whether the arbitration agreement
is procedurally unconscionable.2 Our Supreme Court has
explained that “there are ‘ “degrees of procedural
unconscionability. At one end of the spectrum are contracts that
have been freely negotiated by roughly equal parties, in which
there is no procedural unconscionability. . . . Contracts of
adhesion that involve surprise or other sharp practices lie on the
other end of the spectrum. [Citation.] Ordinary contracts of
adhesion, although they are indispensable facts of modern life
that are generally enforced [citation], contain a degree of
procedural unconscionability even without any notable surprises,
and ‘bear within them the clear danger of oppression and
overreaching.’ ” ’ ” (Ramirez, supra, 16 Cal.5th at pp. 493–494.)
      A contract of adhesion is “ ‘a “standardized contract which,
imposed and drafted by the party of superior bargaining
strength, relegates to the subscribing party only the opportunity


2     “A court should consider substantive unconscionability only
after procedural unconscionability has been established. A
‘conclusion that a contract contains no element of procedural
unconscionability is tantamount to saying that, no matter how
one-sided the contract terms, a court will not disturb the contract
because of its confidence that the contract was negotiated or
chosen freely, that the party subject to a seemingly one-sided
term is presumed to have obtained some advantage from
conceding the term or that, if one party negotiated poorly, it is
not the court’s place to rectify these kinds of errors or
asymmetries.’ (Gentry v. Superior Court (2007) 42 Cal.4th 443,
470.)” (Ramirez, supra, 16 Cal.5th at p. 494.)




                                12
to adhere to the contract or reject it.” ’ ” (Fuentes, supra,
19 Cal.5th 93, 103.) Our Supreme Court has explained that
courts must be “ ‘ “particularly attuned” ’ ” to the dangers posed
by adhesive contracts in employment settings, where
“ ‘ “economic pressure exerted by employers on all but the most
sought-after employees may be particularly acute.” ’ ” (Ramirez,
supra, 16 Cal.5th at p. 494.) Courts have found employment
contracts to be adhesive in a variety of contexts, including where
an employee occupies a managerial position, if the employee had
no real opportunity to modify the contract’s terms. (See, e.g.,
Farrar v. Direct Commerce, Inc. (2017) 9 Cal.App.5th 1257, 1267
[arbitration agreement was adhesive, even as to vice president of
business development, because although plaintiff had
opportunity to negotiate some of the terms of her employment,
“she apparently had no opportunity to negotiate over the
arbitration provision or the requirement that she sign a
confidentiality agreement”]; Dotson v. Amgen, Inc. (2010)
181 Cal.App.4th 975, 981 [adhesive arbitration agreement was
unconscionable (albeit only to a “low degree”) with regard to
employee who was a licensed attorney and highly compensated
by employer]; Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th
1519, 1534 [standard form employment contract containing an
arbitration provision was adhesive because the plaintiff, although
a highly compensated corporate executive, “appears to have had
no realistic ability to modify the terms of the employment
contract” because the contract’s terms were “cast in generic and




                               13
gender neutral language” and “described as standard provisions
that were not negotiable”].)3
      In the present case, Stoker asserted in a declaration that
when he was offered the position with Blue Origin in August
2020, Blue Origin’s recruiter, Ben Baker, said Stoker would “have
to sign an employment agreement as a term and condition of my
employment.” Baker represented that the employment
agreement “contained ‘standard terms,’ that ‘everyone has to sign
to these terms,’ and ‘everybody always signs to these terms.’ ”
Stoker asserted in his declaration that he had questions about
the documents he was signing, but “Baker did not offer to answer
any questions I had,” and “[t]he way I was presented the
agreement, and based on our prior discussions, it seemed that the
terms that were not previously negotiated were nonnegotiable.”




3      Blue Origin asserts that California courts have consistently
held that the mere fact that an agreement is presented on a
“ ‘take-it-or-leave-it’ basis does not, by itself, establish procedural
unconscionability.” The cases Blue Origin cites do not support
this assertion. (Serpa v. California Surety Investigations, Inc.
(2013) 215 Cal.App.4th 695, 704 [“It is well settled that adhesion
contracts in the employment context, that is, those contracts
offered to employees on a take-it-or-leave-it basis, typically
contain some aspects of procedural unconscionability”]; Graham
v. Scissor-Tail, Inc. (1981) 28 Cal.3d 807, 825 [notwithstanding
plaintiff’s stature in the music industry, arbitration agreement
was adhesive and unenforceable “on grounds of
unconscionability”]; see also Lagatree v. Luce, Forward, Hamilton
& Scripps (1999) 74 Cal.App.4th 1105, 1109 [employee can be
discharged for refusing to sign a predispute arbitration
agreement].)




                                  14
       In support of its motion to compel arbitration, Blue Origin
did not present any evidence that the employee agreement was
not adhesive—i.e., that Stoker had, or could have, negotiated the
terms of the employee agreement. We therefore conclude on the
basis of the undisputed evidence that the employee agreement
was a contract of adhesion. Although adhesion alone “generally
indicates only a low degree of procedural unconscionability,” the
potential for overreaching in the employment context “warrants
close scrutiny of the contract’s terms.” (Ramirez, supra,
16 Cal.5th at p. 494.) We turn now to those terms.
      C.    The arbitration agreement is substantively
            unconscionable.
       Substantive unconscionability concerns “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), “ ‘unduly
oppressive’ ” (Perdue v. Crocker National Bank (1985) 38 Cal.3d
913, 925), “ ‘so one-sided as to “shock the conscience” ’ ”
(Pinnacle[, supra,] 55 Cal.4th [at p.] 246), or “unfairly one-sided”
(Little [v. Auto Stiegler, Inc. (2003)] 29 Cal.4th [1064], 1071.) 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.” ’ ’ ” (Kho,
supra, 8 Cal.5th at pp. 129–130.)
       Stoker contends that the arbitration agreement is
substantively unconscionable because it is overbroad, lacks
mutuality, waives Stoker’s right to a jury trial, and waives the
right to bring a representative claim under the Private Attorneys



                                 15
General Act of 2003 (PAGA) (Lab. Code, § 2698 et seq.). We
agree.4
       The arbitration agreement is overbroad. By its terms,
the arbitration agreement applies (with some exceptions
discussed below) “to any and all claims, disputes, or controversies
between the Company and me, including, without limitation,
claims arising out of or relating to my employment application
and/or hiring process, employment with the Company, and/or any
termination of my employment . . . , tort claims [and] breach of
contract claims.” (Italics added.) “ ‘Company’ ” is defined to
include not only Blue Origin, but also its “parent, subsidiaries,
affiliates, successors or assigns, as well as their current and
former officers, directors, employees and agents.”
       The Court of Appeal found a similar arbitration provision
substantively unconscionable in Cook v. University of Southern
California (2024) 102 Cal.App.5th 312, 321 (Cook). There, an
arbitration agreement entered into between the University of
Southern California (USC) and an employee required the
employee to arbitrate all claims against USC, regardless of
subject matter. (Ibid.) The trial court found the agreement
unconscionably broad because it “applied to ‘all’ of [the
employee’s] claims regardless of whether they arose from her
employment,” and thus “ ‘for the rest of her life, if [the employee]
were to suffer an injury related to USC or its related entities, [the
employee] could be ordered to arbitrate such claims.’ ” (Id. at

4     Stoker also contends the arbitration agreement is
unconscionable because it provides that disputes must be
resolved in Washington state under Washington law and includes
a prevailing party attorney fees provision. We do not address
these issues.




                                 16
p. 318.)5 The Court of Appeal agreed that the arbitration
agreement was substantively unconscionable, explaining: “If
USC had been concerned about capturing termination or
retaliation claims related to [an employee’s] employment, it
simply could have limited the scope of the agreement to claims
arising out of or relating to her employment or termination. It is
difficult to see how it is justified to expect [the employee]—as a
condition of her employment at the university—to give up the
right to ever sue a USC employee in court for . . . claims that are
completely unrelated to [her] employment.” (Id. at p. 325.)
       The present case is analogous to Cook. As in that case, the
arbitration agreement here is not limited to claims arising out of
the employment relationship. Instead, it applies to any claim
that might arise at any time between Stoker and Blue Origin or
its parent, subsidiaries, affiliates, successors or assigns, or
employees of any of these entities. Thus, for example, the
arbitration agreement would apply if Stoker were to be injured in
an automobile accident with another Blue Origin employee years
after his employment ended, or if his house were damaged by
debris from a Blue Origin rocket. The arbitration provision’s
broad scope, thus, renders it substantively unconscionable.
       Blue Origin contends that the arbitration agreement does
not cover all claims between the parties, but “only employment-
related claims between [Stoker] and Blue Origin.” In support,

5     The trial court found that as drafted, the arbitration
agreement would apply to claims completely unrelated to the
employee’s employment—such that, for example, if the employee
was “ ‘the victim of a botched surgery in a USC hospital in
15 years, her claims could be subject to the arbitration
agreement.’ ” (Cook, supra, 102 Cal.App.5th at p. 318.)




                                17
Blue Origin notes that that provision’s expansive language—
“ ‘any and all claims, disputes, or controversies between the
Company and me’ ”—is narrowed by the clause that follows—
“ ‘including, without limitation, claims arising out of or relating
to my employment.’ ” Not so. Had Blue Origin intended to
subject only employment-related claims to arbitration, it would
have been a simple matter to say so. Instead, Blue Origin used
far more expansive language—“any and all claims.” Suffice it to
say, “all” means all.
       The arbitration agreement applies to claims likely to
be brought by Stoker, while excluding claims likely to be
brought by Blue Origin. Courts routinely hold that employer-
drafted arbitration agreements are unconscionable if they compel
arbitration of claims most likely to be brought by employees,
while exempting from arbitration claims most likely to be
brought by the employer. For example, in Ramirez, supra,
16 Cal.5th at pp. 497–500, the court held that an arbitration
agreement was substantively unconscionable because “a wide
range of statutory and policy-based claims that would typically be
initiated by an employee are directed into arbitration,” but “only
a small subset of claims that would typically be initiated by
[employer] are similarly directed.” The high court similarly
concluded in Armendariz v. Foundation Health Psychcare
Services, Inc. (2000) 24 Cal.4th 83, 117–121 (Armendariz),
holding unenforceable an arbitration agreement that applied only
to employee wrongful termination claims. The court explained:
“Given the disadvantages that may exist for plaintiffs arbitrating
disputes, it is unfairly one-sided for an employer with superior
bargaining power to impose arbitration on the employee as
plaintiff but not to accept such limitations when it seeks to




                                18
prosecute a claim against the employee . . . . If the arbitration
system established by the employer is indeed fair, then the
employer as well as the employee should be willing to submit
claims to arbitration. Without reasonable justification for this
lack of mutuality, arbitration appears less as a forum for neutral
dispute resolution and more as a means of maximizing employer
advantage. Arbitration was not intended for this purpose.”
(Ibid.; see also Cook, supra, 102 Cal.App.5th at p. 328 [trial court
“did not err in holding the arbitration agreement was
substantively unconscionable for lack of mutuality in the claims
that are subject to arbitration”].)
       In the present case, the arbitration agreement required
arbitration of all claims except those specifically excluded. The
“Excluded Claims” are:
       “(i) claims for unemployment benefits;
       “(ii) claims for workers’ compensation benefits;
       “(iii) claims for sexual harassment or sexual assault, except
if [the employee] choose[s] voluntarily to arbitrate them under
this Agreement;
       “(iv) claims that governing federal law, or a benefits-plan
policy, prohibits from being arbitrated;
       “(v) claims for equitable relief alleging trade secret
violations, trademark infringement, breach of fiduciary duty,
breach of proprietary information or confidentiality
obligations, and breach of non-solicitation agreements for which
either party may seek equitable relief such as a temporary
restraining order or preliminary injunction from a court of
competent jurisdiction, prior to arbitrating the claim(s); and
       “(vi) actions to confirm, vacate, modify, or correct an
arbitrator’s award.”




                                 19
       Workers’ compensation and unemployment insurance
claims “are excluded from arbitration by law” (Ramirez, supra,
16 Cal.5th at p. 498), as are—by definition—claims that federal
law or a benefits-plan policy “prohibit[ ] from being arbitrated.”
Claims for sexual harassment and sexual assault are also
excluded from mandatory arbitration under the EFAA. (9 U.S.C.,
§ 402, subd. (a) [“at the election of the person alleging conduct
constituting a sexual harassment dispute or sexual assault
dispute, or the named representative of a class or in a collective
action alleging such conduct, no predispute arbitration
agreement or predispute joint-action waiver shall be valid or
enforceable with respect to a case which is filed under Federal,
Tribal, or State law and relates to the sexual assault dispute or
the sexual harassment dispute”].) And, petitions to confirm,
vacate, modify, or correct an arbitrator’s award must be decided
by a “court.” (Code Civ. Proc., § 1285.) Accordingly, the only
exclusion from arbitration not compelled by statute are those set
out in paragraph (v)—i.e., claims for relief “alleging trade secret
violations, trademark infringement, breach of fiduciary duty,
breach of proprietary information or confidentiality obligations,
and breach of non-solicitation agreements.”
       Claims for trade secret violations, trademark infringement,
breach of fiduciary duty, breach of proprietary information,
confidentiality obligations, and non-solicitation agreements are
most likely to be brought by an employer, not an employee. (See,
e.g., Ramirez, supra, 16 Cal.5th at p. 498 [claims related to
intellectual property rights and severance or noncompete
agreements are “more likely to be employer-initiated”].) The
arbitration agreement thus created a one-sided exemption from
arbitration for claims likely to be initiated by Blue Origin.




                                20
(Fuentes, supra, 19 Cal.5th at pp. 107–108.) In contrast, under
Blue Origin’s arbitration agreement, a wide range of claims that
typically would be initiated by an employee—including claims
arising out of or relating to employment or termination of
employment, wage and hour claims, claims under “federal, state
and local anti-discrimination, anti-harassment, and anti-
retaliation laws and all other statutes governing the employment
relationship,” and “any other employment-related claims,
whistleblower claims, and all claims for violation of any federal,
state, or other governmental law, statute, regulations, or
ordinance”—are specifically directed into arbitration. In short,
the arbitration agreement created “a one-sided carveout for
claims only [Blue Origin] would bring.” (Fuentes, at p. 111.) This
lack of mutuality renders the arbitration agreement
substantively unconscionable.
       The arbitration agreement waives the right to a jury
trial of any claims. The arbitration agreement provides: “I
understand and agree that this binding arbitration procedure
shall supplant and replace claims brought in state or federal
court (except as specified in this Section), and that the Company
and I expressly waive the right to a civil court action before a
jury. [¶] FURTHER, TO THE EXTENT THAT ANY CLAIM IS
EXCLUDED FROM ARBITRATION UNDER THIS SECTION 6
AND/OR IS DETERMINED NOT TO BE SUBJECT TO
ARBITRATION, THE COMPANY AND I EXPRESSLY AGREE
THAT THE CLAIM SHALL BE TRIED TO THE COURT AND
THAT ANY RIGHT TO JURY TRIAL IS WAIVED.”
       Predispute jury trial waivers are contrary to California
public policy and, thus, unenforceable. (Grafton Partners v.
Superior Court (2005) 36 Cal.4th 944, 950, 961 [holding




                               21
unenforceable a “predispute agreement that any lawsuit between
[the parties to a contract] would be adjudicated in a court trial,
and not by jury trial”]; see also Lange v. Monster Energy Co.
(2020) 46 Cal.App.5th 436, 452 [waiver of right to a jury “ ‘in the
event that any controversy or claim is determined in a court of
law’ ” is “an unconscionable predispute jury trial waiver”];
Dougherty v. Roseville Heritage Partners (2020) 47 Cal.App.5th
93, 107 [employment agreement that required plaintiffs “to waive
in advance their right to a jury trial for any dispute for which
arbitration is not allowed” was substantively unconscionable].)
Accordingly, the provision of the arbitration agreement
purporting to waive the right to a jury in any action tried in court
is substantively unconscionable.
       The arbitration agreement waives the right to pursue
any claims on a class or representative basis. Paragraph 6.3
of the arbitration agreement provides: “The Company and I will
resolve Claims only on an individual basis. This means that no
Claims, including arbitration of Covered Claims or cause of
action in court for Excluded Claims, will be initiated or
maintained as a class action, collective action, consolidated
action, representative action, or multi-party action (together
‘Collective Actions’). The Company and I waive the right to
participate in, or receive money or other relief from, a Collective
Action. Neither the Company nor I may bring a Claim on behalf
of others. No arbitrator or judge may combine more than one
individual’s Claim(s) into a single arbitration or court proceeding
without all parties’ written consent. . . . [¶] FURTHER, TO THE
EXTENT THAT ANY CLAIM IS EXCLUDED FROM
ARBITRATION UNDER THIS SECTION 6 AND/OR IS
DETERMINED NOT TO BE SUBJECT TO ARBITRATION,




                                22
THE COMPANY AND I EXPRESSLY AGREE THAT ANY
SUCH CLAIMS SHALL BE CONDUCTED ON AN INDIVIDUAL
BASIS ONLY, AND THE COMPANY AND I WAIVE OUR
RIGHTS TO ASSERT CLAIMS ON CLASS, COLLECTIVE,
OTHER REPRESENTATIVE, OR MULTI-PARTY ACTIONS.”
      Although the United States Supreme Court has held that
class action waivers are enforceable in cases to which the Federal
Arbitration Act applies (see Iskanian v. CLS Transportation
Los Angeles, LLC (2014) 59 Cal.4th 348, 361 (Iskanian),
discussing AT&T Mobility LLC v. Concepcion (2011) 563 U.S.
333, 344), the same is not true of representative PAGA actions.
As to those actions, “a predispute categorical waiver of the right
to bring a PAGA action is unenforceable.” (Adolph v. Uber
Technologies, Inc. (2023) 14 Cal.5th 1104, 1117; see also Fuentes,
supra, 19 Cal.5th at p. 112, fn. 6 [when “ ‘an employment
agreement compels the waiver of representative claims under the
PAGA, it is contrary to public policy and unenforceable as a
matter of state law’ ”].) The arbitration provision’s purported
waiver of the employee’s right to bring “representative” actions,
including representative PAGA claims, thus is substantively
unconscionable. (See Hasty v. American Automobile Assn. etc.
(2023) 98 Cal.App.5th 1041, 1063 (Hasty) [ban on all
representative PAGA actions is unconscionable “because it
requires an employee to waive a right that is not waivable”];
Alberto v. Cambrian Homecare (2023) 91 Cal.App.5th 482, 495
[“both before and after Viking River Cruises[, Inc. v. Moriana




                               23
(2020) 596 U.S. 639], blanket waivers of PAGA claims are
unconscionable”].)6
      For all the foregoing reasons, the arbitration agreement
contains a high degree of substantive unconscionability. We
therefore turn to the question of severance.
III.   Severance.
        Civil Code section 1670.5, subdivision (a) provides that if a
contract or any clause of a contract is unconscionable, the court
may (1) “refuse to enforce the contract,” (2) “enforce the
remainder of the contract without the unconscionable clause”—
i.e., sever any unconscionable clause, or (3) “limit the application
of any unconscionable clause as to avoid any unconscionable
result.” (See Ramirez, supra, 16 Cal.5th at p. 513.)
        Our Supreme Court has explained that in determining
whether to sever or strike a contract with unconscionable terms,
a court should consider the contract’s purposes: “If the central
purpose of the contract is tainted with illegality, then the
contract as a whole cannot be enforced. If the illegality is
collateral to the main purpose of the contract, and the illegal
provision can be extirpated from the contract by means of




6       We note that for purposes of an unconscionability analysis,
it is irrelevant that Stoker did not assert any PAGA claims.
“ ‘In determining unconscionability, our inquiry is into whether a
contract provision was “unconscionable at the time it was
made.” ’ ” (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th
1109, 1134, italics added; see also Najarro v. Superior Court
(2021) 70 Cal.App.5th 871, 882–883; Hasty, supra,
98 Cal.App.5th at p. 1063.)




                                 24
severance or restriction, then such severance and restriction are
appropriate.” (Armendariz, supra, 24 Cal.4th at p. 124.)
       In Armendariz, the court found that two factors weighed
against severance of the unlawful provisions. First, the
arbitration agreement contained more than one unconscionable
provision, indicating a “systematic effort to impose arbitration on
an employee not simply as an alternative to litigation, but as an
inferior forum that works to the employer’s advantage.”
(Armendariz, supra, 24 Cal.4th at p. 124.) Second, because the
arbitration provisions were not mutual, there was “no single
provision a court can strike or restrict in order to remove the
unconscionable taint from the agreement.” (Id. at pp. 124–125.)
Instead, the court would have had to augment the contract with
additional terms, which it could not do under the statute.
Accordingly, “[b]ecause a court is unable to cure this
unconscionability through severance or restriction, and is not
permitted to cure it through reformation and augmentation, it
must void the entire agreement.” (Id. at p. 125.)
       In Ramirez, the high court affirmed the continued
applicability of the Armendariz factors and further noted that
even if a contract can be cured, a court should consider whether
doing so would further the interests of justice. The court
explained that this part of the inquiry “focuses on whether mere
severance of the unconscionable terms would function to condone
an illegal scheme and whether the defects in the agreement
indicate that the stronger party engaged in a systematic effort to
impose arbitration on the weaker party not simply as an
alternative to litigation, but to secure a forum that works to the
stronger party’s advantage. [Citation.] If the answer to either
question is yes, the court should refuse to enforce the agreement.”




                                25
(Ramirez, supra, 16 Cal.5th at pp. 516–517.) In conducting this
analysis, Ramirez directs, a court “may also consider the
deterrent effect of each option. As Mills v. Facility Solutions
Group, Inc. (2022) 84 Cal.App.5th 1035 explained, severing
multiple unconscionable provisions from an agreement and
enforcing the remainder could ‘create an incentive for an
employer to draft a one-sided arbitration agreement in the hope
employees would not challenge the unlawful provisions, but if
they do, the court would simply modify the agreement to include
the bilateral terms the employer should have included in the first
place.’ [Citation.] Although there are no bright-line numerical
rules regarding severance, it is fair to say that the greater the
number of unconscionable provisions a contract contains the less
likely it is that severance will be the appropriate remedy.” (Ibid.)
Finally, the court noted, if a contract contains a severance clause,
a court “should take it into account as an expression of the
parties’ intent that an agreement curable by removing defective
terms should otherwise be enforced. [Citations.] That said, we
note that the parties to an agreement cannot divest a trial court
of its discretion under Civil Code section 1670.5 by including such
a severance clause.” (Ibid.)
       Applying these factors to the present case, we conclude that
the entirety of the arbitration agreement is unenforceable.
Arguably, sections 6.3 and 6.4 of the agreement, which waive the
right to a jury trial and to pursue representative claims, could be
severed without doing violence to the rest of the agreement. But
section 6.1, which governs the kinds of claims subject to
arbitration, is far more problematic. As we have noted, that
section requires arbitration of most claims between Stoker, on
the one hand, and Blue Origin, its parent, subsidiaries, officers,




                                26
directors, employees, and agents, on the other, whether or not
such claims pertain to Stoker’s employment. This section’s
overbreadth could be corrected only by adding language limiting
the provisions’ reach to claims arising out of Stoker’s
employment—and as we have said, courts have no authority
under governing law to cure unconscionable contracts through
“reformation and augmentation.” (Armendariz, supra, 24 Cal.4th
at p. 125.)
       Section 6.1 also exempts from arbitration claims most
likely to be brought by Blue Origin, while requiring arbitration of
claims most likely to be brought by Stoker. Eliminating these
limitations to make the arbitration agreement fully mutual
would have the effect of subjecting to arbitration categories of
claims the parties did not agree to arbitrate. “Courts cannot,
however, ‘ “rewrite agreements and impose terms to which
neither party has agreed.” ’ ” (Ramirez v. Charter
Communications, Inc. (2025) 108 Cal.App.5th 1297, 1306
(Ramirez II) [declining to reform unconscionable agreement by
excising exclusions from arbitration, “effectively rewriting the
Agreement to cover claims [the parties] did not agree to
arbitrate”].)
       In any event, even if it were possible to sever the
unconscionable provisions, it would not be appropriate to do so
here because “enforcing the balance of the contract would [not] be
in the interests of justice.” (Ramirez, supra, 16 Cal.5th at p. 517.)
The multiple defects in the arbitration agreement “indicate that
the stronger party [Blue Origin] engaged in a systematic effort to
impose arbitration on the weaker party [Stoker] not simply as an
alternative to litigation, but to secure a forum that works to the
stronger party’s advantage.” (Id. at pp. 516–517.) As the




                                 27
Supreme Court acknowledged, “[a]lthough there are no bright-
line numerical rules regarding severance, it is fair to say that the
greater the number of unconscionable provisions a contract
contains the less likely it is that severance will be the appropriate
remedy.” (Id. at p. 517; see also Ramirez II, supra,
108 Cal.App.5th at p. 1306 [on remand from Supreme Court,
refusing to sever unconscionable provisions from arbitration
agreement].) Here, there are at least four unconscionable
elements of the arbitration agreement drafted by Blue Origin and
imposed on Stoker as a condition of employment. We decline to
incentivize employers to draft one-sided arbitration agreements
by modifying this agreement “ ‘to include the bilateral terms the
employer should have included in the first place.’ ” (Ramirez II,
at p. 1307.)
       The agreement’s severance clause does not change our
conclusion. As noted above, our Supreme Court has said that if a
contract contains a severance clause, “the court should take it
into account as an expression of the parties’ intent that an
agreement curable by removing defective terms should otherwise
be enforced.” (Ramirez, supra, 16 Cal.5th at p. 517.) In the
present case, however, “we decline to permit the severance clause
to dictate the outcome when, as here, severance of the
unconscionable provisions would not further the interests of
justice.” (Ramirez II, supra, 108 Cal.App.5th at p. 1307.)
       For all the foregoing reasons, we conclude that section 6 of
the employee agreement is unenforceable. We therefore affirm
the trial court’s order denying Blue Origin’s petition to compel
arbitration.




                                 28
                         DISPOSITION
      The order denying the petition to compel arbitration is
affirmed. Stoker is awarded his appellate costs.

      CERTIFIED FOR PUBLICATION




                                          EDMON, P. J.



We concur:




                  ADAMS, J.




                  HANASONO, J.




                                29