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Packin v. Astra USA1/29/2002
ces the costs of litigation, but also because it reduces the size of the award that an employee is likely to get, particularly if the employer is a `repeat player' in the arbitration system." (Armendariz, supra, 24 Cal.4th at p. 115.)
The agreement is also substantively unconscionable because it does not contain the "modicum of bilaterality" required by Armendariz. Although the agreement does not expressly authorize the litigation of Astra's claims against an employee, it speaks only to an employee's claim ("Astra USA, Inc. has established a formal employment dispute resolution arbitration procedure designed to provide all employees an exclusive, final and binding means of recourse to resolve legal issues arising out of their employment or termination of employment with Astra without resorting to litigation in the courts"). Only the employee is limited in the time to present a claim and the recovery of damages, and only Astra can modify the agreement. "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." (Armendariz, supra, 24 Cal.4th at p. 118.)
Astra argues its proffered modifications to the arbitration agreement render it unobjectionable. But Astra offered only to remove the damages limitation and pay the arbitration fees. It did not waive the application of Massachusetts law, it expressly exempts attorney's fees from its offer, and it does not mention the cost of the reporter's transcript. Furthermore, it does not remove the unconscionable one-sidedness that permeates the agreement. " hether an employer is willing, now that the employment relationship has ended, to allow the arbitration provision to be mutually applicable, or to encompass the full range of remedies, does not change the fact that the arbitration agreement as written is unconscionable and contrary to public policy. Such a willingness "can be seen, at most, as an offer to modify the contract; and offer that was never accepted. No existing rule of contract law permits a party to resuscitate a legally defective contract merely by offering to change it." (Stirlen v. Supercuts, supra, 51 Cal.App.4th at pp. 1535-1536.)
Neither can the agreement be salvaged by severing the unconscionable provisions, as Astra suggests. "Because there is no single provision a court can strike or restrict in order to remove the unconscionable taint from the agreement," the entire agreement must fail. (Armendariz, supra, 24 Cal.4th at pp. 124-125.)
DISPOSITION
The order denying the motion to stay this action is affirmed. Respondent is entitled to costs on appeal.
WE CONCUR:
RYLAARSDAM, J.
BEDSWORTH, J.
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