In Trabert v. Consumer Portfolio Services, 2013 WL 1403084 (2013), Division 1 of the Fourth District Court of Appeal, in an unpublished decision, found the Arbitration Clause in a standard form RISC to be procedurally and substantively unconscionable, but remanded the matter to the trial court to determine whether those provisions could be severed.
In sum, we have determined that when considered together, three provisions relating to the finality of the arbitration award combine to deny Trabert the mutual benefits of the arbitration agreement and are substantively unconscionable: (1) the exception to finality for awards that are more than $100,000; (2) the exception to finality for an award that “includes” injunctive relief; and (3) the requirement that the appealing party advance both parties’ costs for the second arbitration with a three-arbitrator panel. The parties’ arbitration agreement provides a streamlined and efficient procedure when it serves the needs of the seller/creditor, but when such needs are not served—for example when the award is more than $100,000 or includes injunctive relief—the buyer is then subjected to delay and complexity. Moreover, without any waiver for a consumer who cannot afford to pay for an appeal, the requirement that the appealing party advance the full cost of the arbitration (including the fees for the three arbitrators) makes it likely that the seller/creditor will be the only party to take advantage of the appeal procedures. Considered together, these three challenged provisions are moderately substantively unconscionable. Under the sliding-scale test, these provisions cannot be enforced because we have found that the contract was also procedurally unconscionable. ¶ IV. Severance. Portfolio contends the offending provisions can be severed from the remainder of the arbitration provision and the remaining provision can be enforced. ¶ Civil Code section 1670.5, subdivision (a) provides: “If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause so as to avoid any unconscionable result.” A trial court has broad discretion to determine whether severance is appropriate in a particular case. ( Murphy v. Check ‘N Go of California, Inc. (2007) 156 Cal.App.4th 138, 144.) ¶ In this case, Portfolio never asked the trial court to exercise its discretion to sever the unconscionable provisions. Typically this would constitute a waiver. However, because we have found the court erred in finding the self-help/small-claims exceptions unconscionable but that certain other provisions are unconscionable, we conclude the severance analysis has necessarily changed. Accordingly, we remand to permit the court to consider the severance issue.
In Mercedes-Benz v. Okudan, here, the same division issued a somewhat similar opinion.