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Second District Reverses Order Denying Arbitration, Because Unconscionable Provision Was Severable

by Marc Alexander

September 2020

Marc Alexander

Employer Had No Duty To Call Arbitration Agreement To Attention Of Employee.

When Michael Conyer became employed by Hula Media, the employer's handbook did not have an arbitration clause. Several months later, Conyer signed the "receipt and acknowledgment" page, which was the final page of a revised employee handbook that did include an arbitration clause. Conyer sued the employer for sexual harassment, and claimed he would never have signed an arbitration agreement if he knew it existed. The trial court denied a motion by the employer to compel arbitration, and defendant Hula Media appealed. Michael Conyer v. Hula Media Services, LLC, et al., B296738 (2/8  8/26/20) (Grimes, Bigelow, Wiley). Reversed.

The Court of Appeal held "the employee demonstrated his assent to the arbitration clause by signing the acknowledgment, and the employer had no duty to call the arbitration agreement to the employee's attention."

However, under an unconscionability analysis, the Court of Appeal found that the provisions in the arbitration clause concerning arbitrator's fees and costs and attorneys fees, were unenforceable. Why? A clause providing the arbitrator shall award attorney fees to the prevailing party conflicts with FEHA, since "the defendant in a  FEHA case may only recover attorney fees when the plaintiff's action was frivolous, unreasonable or groundless." But that was not enough to make the arbitration clause unenforceable, because the unenforceable provision could be severed.




Marc Alexander is of counsel in the Santa Ana office of AlvaradoSmith APC, and a member of the Firm’s litigation department. He has over 30 years of experience in bench and jury trials, binding arbitrations, judicial references, mediations, and appellate work in state and federal courts in California. Mr. Alexander received his B.A. with honors from the University of California, Santa Cruz. He received an M.A. and a Ph.D. in history from Johns Hopkins, and he is a member of Phi Beta Kappa. Mr. Alexander received his Juris Doctor degree from UCLA in 1981, and has been licensed to practice law continuously in California since 1981. Upon graduating from law school, he clerked on the United States Court of Appeals for the Ninth Circuit with the Hon. Warren J. Ferguson. After clerking for the federal court, Mr. Alexander practiced in California as a litigator with Irell and Manella in its Century City and Orange County offices. In 1986, he joined the litigation department at McKittrick, Jackson, DeMarco & Peckenpaugh in Orange County, California. Mr. Alexander was a shareholder in the litigation department at McKittrick, Jackson, DeMarco & Peckenpaugh; Jackson, DeMarco & Peckenpaugh; Jackson, DeMarco, Tidus & Peckenpaugh; and, Jackson, DeMarco, Tidus, Petersen & Peckenpaugh, until 2008.


Mr. Alexander has broad experience in business and real estate litigation. His experience encompasses landlord-tenant disputes, foreclosures, purchase and sale disputes, title disputes, homeowner association disputes; unfair competition disputes, including non-compete and non-solicitation disputes; partnership and corporate disputes; securities defense; and, intellectual property disputes. Mr. Alexander is a mediator on the panel for the United States District Court, Central District of California, and a mediator on the panel for the Superior Court of the County of Orange, California.


Over the years, Mr. Alexander has written a number of articles and book reviews on legal subjects. A sampling of his articles includes: Can Private Attorney General Actions Be Forced Into Litigation?, California Litigation, Vol. 28, No. 2, 2015; Summary Contempt and Due Process: England, 1631, California, 1888," California Litigation, Vol. 27, No. 3 2014; When The American Rule Doesn't Apply: Attorney's Fees As Damages In Litigation, California Litigation, Vol. 21, No. 3, 2008 (co-authored with William M. Hensley), Peril of Private Justice: Suspension of Proceedings, Orange County Lawyer, September 2004, Trespass to Chattel and Unsolicited Bulk Email, Orange County Lawyer, September 2003, Protecting Views With Municipal Ordinances, California Land Use, April, 2001, A Newsperson's Shield Law: A Primer, Civil Litigation Reporter, August, 1995, Despicable Conduct, Or How Punitives Have Been Damaged, Orange County Lawyer, April, 1988, Software Patents and The On-Sale Bar, The Computer Lawyer, January, 1988, When Can An Attorney Contact The Employee Of A Party Represented By Counsel? -- Bright Line And Multi-Factor Approaches, Civil Litigation Reporter, December, 1987, When Is A Software Program "Made For Hire?", The Computer Lawyer, September, 1986, Discretionary Power To Impound And Destroy Infringing Articles: An Historical Perspective, Journal Of The Copyright Society Of The USA (1980). Mr. Alexander is a co-creator and contributor, with his long-time colleague Mike Hensley, to CalAttorneysFees, a blawg about the law of attorney’s fees in California. Mr. Alexander is married and has three grown children. He also has a dog named Watson.


Additional articles by Marc Alexander
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