Jose Torrecillas v. Fitness International, LLC

Jose Torrecillas agreed with his employer, Fitness

International, to arbitrate claims. Instead Torrecillas sued in

court. When Fitness moved to compel arbitration, the trial court

deemed the agreement unconscionable. But there was little or no

unconscionability of any sort. Fitness encouraged Torrecillas to

consult a lawyer and their agreement included a term allowing

amendments if both parties agreed. Torrecillas had the

opportunity to bargain and had meaningful bargaining power.

The agreement’s terms are standard, not shocking. Torrecillas

separately argues a different employee’s case against Fitness

preclusively dictates a conclusion of unconscionability, but that

case had different facts and a different holding. We reverse.

I

Torrecillas had a lengthy and successful career at Fitness,

according to his verified complaint.

In 1998, Torrecillas began as a sales associate at Fitness.

Fitness promoted him to general manager after only three

months. Torrecillas became Fitness’s highest paid general

manager nationwide from 2001 to 2006, partly due to

performance bonuses. Torrecillas set many all-time sales

records. Fitness awarded him recognition for Top Performing

Presale and Most Successful Grand Opening. Torrecillas’s

records still stood in 2017.

Torrecillas resigned from Fitness in 2007 but returned in

2008 as a sales manager. Fitness promoted him to general

manager of the Irvine club within only two months because he

was the highest performing sales manager in California. In

October 2008, Fitness promoted Torrecillas to general manager of

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the Pico Rivera club, and then to general manager of the Downey

club in August 2011. In October 2011, Fitness asked Torrecillas

to take over as general manager of the Upland club because it

was the lowest-performing club in California and Torrecillas was

one of Fitness’s most successful general managers. In only 30

days, Torrecillas transformed the Upland club into Fitness’s

highest California performer.

Torrecillas’s excellent performance prompted Fitness to

promote him to District Vice President in November 2011.

Torrecillas was Fitness’s highest earning District Vice President

in the nation for several consecutive months. He was the only

Vice President nationwide to hit the full $10,000 possible in

performance bonuses.

In early 2013, Fitness promoted Torrecillas to Vice

President of Marketing and Sales. In this new position,

Torrecillas became accustomed to making well over $100,000 a

year from salary, bonuses, and commissions.

In September 2014, Fitness again promoted Torrecillas,

now to Vice President of Personal Training. A Fitness owner said

Torrecillas was the “first round draft pick” for this position.

As Vice President of Marketing and Sales and again as Vice

President of Personal Training, Torrecillas hired employees for

Fitness. Torrecillas oversaw 12 club locations.

Fitness fired Torrecillas on April 20, 2017. Torrecillas sued

Fitness on August 15, 2018. Fitness moved to compel arbitration.

We recount the arbitration agreements between Torrecillas

and Fitness. There were two: one in 2008, and another in 2013.

In 2008, Torrecillas signed an arbitration agreement when

Fitness rehired him as a sales manager. The agreement is two

4

pages long. It incorporates a 10-page document called “Dispute

Resolution Rules and Procedures” (Rules).

The second agreement to arbitrate was in 2013, after

Fitness promoted Torrecillas to Vice President of Sales and

Marketing. The evidence about the second agreement is as

follows.

To accompany its motion to compel arbitration, Fitness

supplied a declaration of its Vice President for Human Resources,

Mindy Stokesberry. According to Stokesberry, Fitness promoted

Torrecillas to Vice President of Sales and Marketing in or around

February 2013. At the same time he started in the new position,

Torrecillas and Fitness negotiated and executed this second

agreement, which Torrecillas signed in March 2013. During the

time he was entering this agreement, Torrecillas easily could

access the Rules via Fitness’s intranet. Stokesberry signed her

declaration on January 8, 2019.

Torrecillas submitted a one-page declaration, signed

January 17, 2019, in opposition to Fitness’s motion to compel

arbitration. Regarding his 2013 agreement, Torrecillas declared

Fitness promoted him to Vice President of Marketing and Sales

in or around January 2013. After working in this new position

for several months, Fitness presented Torrecillas with an

employment agreement and told him he must sign it to remain in

the position. Torrecillas declared he signed the agreement

“because I needed to in order to keep my job.”

Torrecillas’s declaration omitted all information about the

opportunity for and extent of contract negotiation with Fitness.

Torrecillas’s declaration thus is not inconsistent with

Stokesberry’s assertion that Fitness and Torrecillas, during the

process of promoting Torrecillas to Vice President of Marketing

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and Sales, “negotiated and executed” this second employment

agreement, which Torrecillas signed in March 2013.

Torrecillas signed the second agreement, a seven-page

employment agreement, on March 10, 2013. The first paragraph

of this individualized document stated in printed font that it was

an agreement “between Jose Torrecillas” and Fitness. The

document then recited Fitness currently employed Torrecillas as

Vice President of Sales and Marketing and that Torrecillas

wished to continue to be employed by Fitness.

The 2013 agreement covered a range of standard topics:

conflict of interest rules; reimbursement policies; benefits;

proprietary information rules; unfair competition; and so on. One

topic was compensation. Torrecillas would earn a base salary of

$100,000 a year plus the possibility of bonus compensation.

Another topic, one introduced with an underlined heading, was

“Dispute Resolution.”

The 2013 agreement superseded earlier agreements. At

the same time, it partially incorporated the 2008 arbitration

agreement and the Rules as we now quote. The paragraph of the

2013 agreement titled “Dispute Resolution” says, with our italics,

“Except for claims for equitable relief . . . and except where the

law specifically forbids the use of arbitration as a final and

binding remedy, all disputes between Employee and [Fitness]

arising under this Agreement or relating to Employee’s

employment with [Fitness], including but not limited to the

termination of that relationship, any allegations of unfair or

discriminatory treatment arising under state or federal law, and

claims for compensation and benefits, shall be resolved exclusively

by final and binding arbitration in accordance with the [2008

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arbitration agreement] and the [Rules], the provisions of which

are incorporated herein.”

The 2013 agreement stated it had been “negotiated by and

between the parties . . . .” The agreement also stated Fitness

advised Torrecillas to seek legal advice before signing. On the

same page—which was the page Torrecillas signed—a provision

allowed written amendments to the agreement.

The trial court denied Fitness’s motion to compel

arbitration because the agreement to arbitrate was

unconscionable. The trial court’s minute order was as follows:

“Non-negotiable contracts of adhesion are procedurally

unconscionable. In two places the agreement states that if

plaintiff refuses to sign, he will not be considered for

employment. ¶ Limits on discovery is substantively

unconscionable. The agreement limits depositions to 5, unless a

motion is made to the arbitrator. ¶ Both types of

unconscionability are present. ¶ The Motion to Compel

Arbitration filed by Fitness International, LLC on 01/09/2019 is

Denied.”

II

Our review is independent. (Pinnacle Museum Tower Assn.

v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223,

236 (Pinnacle).)

Torrecillas has the burden of proving unconscionability.

(OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 126 (Kho) [party

asserting unconscionability must prove it].)

The Federal Arbitration Act (9 U.S.C. § 1 et seq.) (“the Act”)

applies, as Torrecillas agreed at oral argument. Torrecillas had

to concede this point: Fitness operates health clubs in many

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states and Torrecillas’s employment related to this interstate

commerce. The Rules specifically adopt the Act as well.

The Act favors enforcement of arbitration agreements. (9

U.S.C. § 2.) California law, like federal law, strongly favors

arbitration. (Kho, supra, 8 Cal.5th at p. 125.)

Generally applicable contract defenses, like

unconscionability, can invalidate arbitration agreements. (9

U.S.C. § 2; Armendariz v. Foundational Health Psychcare

Services, Inc. (2000) 24 Cal.4th 83, 114 (Armendariz).)

The unconscionability standard must be the same for

arbitration contracts as for any other contract. The Act preempts

state unconscionability rules that interfere with fundamental

attributes of arbitration. (AT&T Mobility LLC v. Concepcion

(2011) 563 U.S. 333, 341–344 (Concepcion); see Kho, supra, 8

Cal.5th at pp. 123–124.)

As a matter of general contract law, California courts

require both procedural and substantive unconscionability to

invalidate a contract. (Kho, supra, 8 Cal.5th at p. 125.) We apply

a sliding scale, meaning if one of these elements is present to only

a lesser degree, then more evidence of the other element is

required to establish overall unconscionability. (Ibid.) In other

words, if there is little of one, there must be a lot of the other.

We reverse because there was little or none of either

element.

A

There was little procedural unconscionability.

The procedural inquiry is about the manner in which the

parties formed the contract. (Baltazar v. Forever 21, Inc. (2016)

62 Cal.4th 1237, 1243 (Baltazar).)

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An initial issue is whether the contract was an adhesion

contract. Adhesion contracts are form contracts a party with

superior bargaining power offers on a take-it-or-leave-it basis.

(Graham v. Scissor-Tail, Inc. (1981) 28 Cal.3d 807, 817

(Graham).)

Torrecillas says his 2013 agreement was a contract of

adhesion. This is not quite accurate. As we will explain, to a

degree the parties customized this agreement specifically to

Torrecillas, and Torrecillas did have an opportunity to negotiate;

Fitness did not offer the agreement on a stark take-it-or-leave-it

basis. But in all likelihood the contract’s text started as a form

on one of Fitness’s corporate word processors. There is no

evidence for the unlikely notion Fitness and Torrecillas sat down

and said, “Well, let’s see. What terms do you think the two of us

should put in this employment contract?”

Whether the agreement was or was not a contract of

adhesion is not the core question. Rather, from the standpoint of

determining whether there was procedural unconscionability, the

core issues are surprise and oppression.

Surprise differs from oppression. Surprise is when a prolix

printed form conceals the arbitration provision. (Kho, supra, 8

Cal.5th at p. 126.) Oppression, on the other hand, occurs when

there is a lack of negotiation and meaningful choice. (Ibid.) The

presence of surprise or oppression requires higher scrutiny of the

contract. (Baltazar, supra, 62 Cal.4th at p. 1245.)

Torrecillas does not and cannot argue surprise. The 2008

arbitration agreement had no elements of surprise. It was but

three pages long and was in a conventional font. Its title, in large

and bold font, was in plain English:

L.A. FITNESS INTERNATIONAL LLC EMPLOYMENT

9

APPLICATION AND ARBITRATION AGREEMENT

The Rules shared these features.

Neither was the 2013 employment agreement surprising.

It too was in conventional font. The pertinent heading was

underlined: “Dispute Resolution.” Earlier in this opinion, we

quoted and italicized the key language in this paragraph. Its

language is reasonably direct and clear. There is nothing

surprising about it.

We proceed to the question of oppression.

Oppression is the absence of negotiation or meaningful

choice. (Pinnacle, supra, 55 Cal.4th at p. 247.)

Form contracts are not per se oppressive, but they do carry

a danger of oppression. (See Graham, supra, 28 Cal.3d at p. 818.)

There may be a worrisome imbalance in bargaining power. The

most sought-after employees can counter this pressure in the

employment context. (Cf. Kho, supra, 8 Cal.5th at p. 127

[economic pressure exerted by employers may be particularly

acute on all but the most sought-after employees].)

We examine the manner and circumstances of the 2013

agreement to discern whether there was an absence of

negotiation or meaningful choice.

Torrecillas agreed to arbitrate in 2008 and again in 2013.

In his respondent’s brief, he analyzes the circumstances of the

2008 agreement without explaining how, even if we found this

earlier agreement flawed, it would negate the more recent one.

The 2013 agreement says all disputes relating to Torrecillas’s

employment must be resolved by arbitration. We analyze this

more recent agreement.

The evidence shows Torrecillas and Fitness negotiated his

2013 employment agreement. The Stokesberry declaration

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establishes this fact. The text of the agreement does as well.

That agreement likewise states Fitness advised Torrecillas that

he should seek legal advice before executing the agreement, that

he understood his right to consult with counsel, and that he was

voluntarily and freely entering the agreement. The agreement

also states the parties may amend the agreement so long as

amendments are in writing and signed by Torrecillas and

Fitness.

Torrecillas’s version of events is not inconsistent with

Stokesberry’s version and with the text of the agreement.

Torrecillas declared Fitness presented him with an employment

agreement “and told me I must sign it to remain in the position.

I signed the Employment Agreement because I needed to in order

to keep my job.” Fitness told Torrecillas he had to sign an

employment agreement to remain Vice President of Marketing

and Sales, where Fitness was paying him over $100,000 a year.

Fitness and Torrecillas negotiated the agreement, as Fitness

asserted and as Torrecillas did not dispute.

The contracting process here contrasts with the recent Kho

case. In Kho, an extreme level of procedural unconscionability

infected car mechanic Ken Kho’s agreement to arbitrate with his

employer, an auto dealership called One Toyota of Oakland.

(Kho, supra, 8 Cal.5th at pp. 126–129.) Kho differs from this case

in seven ways.

1. In Kho, Toyota made Kho sign the arbitration

agreement “immediately.” (Kho, supra, 8 Cal.5th at

p. 127.) Kho had no time even to read the documents.

(Id. at p. 118.) Here, Torrecillas presented no

evidence Fitness exerted time pressure.

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2. In Kho, Toyota had a “porter” present the document

to Kho at his work station, thus compounding the

demand for an immediate signature with the

message the low level porter could explain and

negotiate nothing. (Kho, supra, 8 Cal.5th at pp. 118,

127.) Fitness, by contrast, delivered the opposite

message to Torrecillas: Fitness wanted an

employment agreement of some sort, but its terms

were negotiable.

3. In Kho, the employer used a piece-rate compensation

system, meaning any time Kho spent reviewing the

agreement at his work station reduced his pay. (Kho,

supra, 8 Cal.5th at p. 127.) Fitness, by contrast, paid

Torrecillas an annual salary. Fitness’s compensation

system did not encourage Torrecillas to sign swiftly

or thoughtlessly.

4. The agreement in Kho was a “paragon of prolixity” in

“extremely small font” that was barely legible. (Kho,

supra, 8 Cal.5th at p. 128.) None of these defects

plagued Torrecillas’s contracts. The fonts and

wording were conventional. Torrecillas reported no

difficulty in reading or comprehending them.

5. In Kho, the employer made it impossible for Kho to

consult with an attorney about the deal. (Kho, supra,

8 Cal.5th at p. 127.) Here, Fitness encouraged it.

6. Toyota did not give Kho a copy of what he had signed.

(Kho, supra, 8 Cal.5th at p. 128.) Torrecillas,

however, had unrestricted computer access to the

Rules. Or, “if he preferred, he was able to obtain a

hard copy from the Human Resources department.”

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7. Car mechanic Kho had the same job at a Toyota

dealership for only about four years. (Kho, supra, 8

Cal.5th at pp. 118–119.) The facts showed Kho to be

an undistinguished novice, fungible from his

employer’s perspective. Torrecillas was different.

Fitness had employed Torrecillas for decades and

knew his worth to the company. Torrecillas proved

his outstanding value to Fitness, which steadily

promoted him, gave him awards, and eventually put

him in a position of hiring and managing other

employees. Torrecillas had long-term and significant

experience with corporate culture. He negotiated his

employment agreement while his career was in

ascent: Fitness had just given him one big promotion

and the following year would give him another,

telling him he was the “first round draft pick” for the

next promotion. Torrecillas’s bargaining position

with Fitness was different than Kho’s with Toyota.

Torrecillas points to a 1997 case, Stirlen v. Supercuts, Inc.

(1997) 51 Cal.App.4th 1519, but that case is inapposite for three

reasons. First, undisputed evidence in Stirlen showed the

contract terms were nonnegotiable (id. at p. 1534), but Fitness

asserted and offered evidence the contract here was negotiable.

Second, the Stirlen court found significant substantive

unconscionability including lack of mutuality due to several onesided provisions in the arbitration agreement. (Id. at pp. 1536–

1542.) As we explain in the next section, the level of substantive

unconscionability in this case is small or nil. Finally, Stirlen was

decided before the United States Supreme Court case Concepcion,

supra, 563 U.S. 333. Post-Concepcion, aside from quoting two

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words from Stirlen as part of a list of different substantive

unconscionability standards, the California Supreme Court has

not mentioned Stirlen. (See Sonic-Calabasas A., Inc. v. Moreno

(2013) 57 Cal.4th 1109, 1145; Sanchez v. Valencia Holding Co.,

LLC (2015) 61 Cal.4th 899, 910 (Sanchez); Baltazar, supra, 62

Cal.4th at p. 1244; Kho, supra, 8 Cal.5th at p. 129.)

As Torrecillas’s employer and the primary drafter of the

agreement, Fitness had some level of superior bargaining power.

Yet Torrecillas points to no sharp practices triggering a higher

level of contract scrutiny. (Baltazar, supra, 62 Cal.4th at p. 1245

[no heightened scrutiny because employer did not lie to employee,

place employee under duress, or otherwise manipulate employee

into signing].)

In sum, Torrecillas encountered little procedural

unconscionability.

For Torrecillas to invalidate his agreement, then, minimal

procedural unconscionability means Torrecillas would have to

demonstrate a high degree of substantive unconscionability. We

turn to that topic.

B

There was little or no substantive unconscionability.

The substantive inquiry considers whether the overall

bargain is overly harsh or unreasonably one-sided. (Armendariz,

supra, 24 Cal.4th at p. 114.) California courts have stated the

standard variously, defining it as, for example: so one-sided as to

shock the conscience (Pinnacle, supra, 55 Cal.4th at p. 246);

unduly oppressive (Perdue v. Crocker National Bank (1985) 38

Cal.3d 913, 925); and unfairly one-sided (Little v. Auto Stiegler,

Inc. (2003) 29 Cal.4th 1064, 1071). Our high court has

acknowledged these variations and has clarified the differing

14

formulations mean the same thing. (Sanchez, supra, 61 Cal.4th

at p. 911.)

Torrecillas’s deal with Fitness does not shock the

conscience, for its terms are standard rather than shocking.

Torrecillas says seven provisions are shocking. This attack

fails.

First, Torrecillas says the agreement unreasonably limits

discovery. Under the Rules, initial disclosure requires each party

swap “any and all documents relevant to any claim or defense.”

Each party is entitled to 30 interrogatories and five depositions.

A party may request documents the opposing party used to

support interrogatory responses. The arbitrator may permit

additional discovery at a party’s request and after a showing of

substantial need.

The trial court found substantive unconscionability based

on the five-deposition limit. The finding of procedural

unconscionability based on discovery limitations was incorrect for

three reasons.

First, Torrecillas submitted no evidence that five

depositions were too few or that other discovery limits created

significant barriers to pursuing his claims. (Baxter v. Genworth

North America Corp. (2017) 16 Cal.App.5th 713, 729

[unconscionability requires a factual showing that the discovery

limitations would as a practical matter thwart employees’ ability

to prove their particular claims].) In his appellate brief,

Torrecillas argues he requires certain documents and witnesses

to pursue his claims. Arguments are not evidence.

Second, the arbitrator can grant discovery beyond these

limits on a showing of substantial need. We must presume the

arbitrator will behave reasonably. (Dotson v. Amgen, Inc. (2010)

15

181 Cal.App.4th 975, 984.) Torrecillas suggests no basis for a

contrary presumption.

Third, limiting discovery is one point of arbitration. A

central goal is efficiency. A streamlined discovery process

promotes this goal. (Armendariz, supra, 24 Cal.4th at p. 106, fn.

11 [discovery limits effectuate the simplicity, informality, and

expedition that are important goals of arbitration].)

We also address the specific discovery provisions

Torrecillas challenges. At the outset we underline each provision

is flexible, not rigid, because the arbitrator may permit additional

discovery at a party’s request and after a showing of substantial

need.

The deposition limit is standard. (See Sanchez v. Carmax

Auto Superstores Cal., LLC (2014) 224 Cal.App.4th 398, 405–406

[three depositions not unconscionable]; Armendariz, supra, 24

Cal.4th at p. 105, fn. 10 [no depositions unless approval from

arbitrator is adequate discovery].) A limit of five depositions is

not shocking.

The limit of 30 interrogatories is more than federal court

rules confer and is not shocking. (See Fed. Rules Civ. Proc., rule

33, 28 U.S.C. [no more than 25].)

The absence of provisions for requesting documents and

admissions is not substantively unconscionable. Torrecillas can

get documents through the initial disclosures and interrogatories.

And if he requests and shows a substantial need, he can get

additional discovery. This process does not prevent Torrecillas

from propounding document demands or requests for admissions.

Torrecillas raises another argument about discovery,

styling it as a distinct argument from unconscionability. He says

the discovery procedures render the arbitration agreement

16

unenforceable as a matter of law under Armendariz, supra, 24

Cal.4th 83. Specifically, he says the five deposition limit and

absence of provisions for requesting documents and for

requesting admissions are inadequate to prosecute his claims for

unwaivable statutory rights. Like his argument that these

discovery procedures are unconscionable, this argument also

fails.

Under Armendariz, Torrecillas is entitled to “adequate,”

not unlimited, discovery. (Armendariz, supra, 24 Cal.4th at pp.

105–106.) Torrecillas has no evidence showing discovery was

inadequate. Furthermore, these procedures sufficed under

Armendariz. Adequate discovery includes access to essential

documents and witnesses, as determined by the arbitrator. (Id. at

p. 106.) Armendariz found adequate discovery when the parties

needed the arbitrator’s approval to take any depositions. (Id. at

p. 105, fn. 10.) Here, Torrecillas is entitled to five depositions

regardless of the arbitrator’s approval. Armendariz approved of

arbitrator discretion. Here, the arbitrator has discretion to allow

additional discovery, including more depositions, document

requests, or requests for admissions. The discovery procedures

are enforceable as a matter of law.

Thus, Torrecillas’s discovery arguments all fail.

Next we turn to the six other provisions Torrecillas says

are substantively unconscionable.

Torrecillas argues the agreement is overbroad. The 2013

agreement limits the scope of arbitration to disputes between

Fitness and Torrecillas arising under the 2013 agreement or

relating to Torrecillas’s employment. This is not overbroad. This

is an employment contract. It pertains to employment. It is not

unfair.

17

Torrecillas cites language from the 2008 agreement and the

Rules to say Torrecillas’s agreement is overbroad. He is

incorrect. The 2008 agreement was broader and applied to

controversies “whether or not arising out of or related to my

application, employment, or its termination.” The 2013

agreement, however, superseded the 2008 agreement and the

Rules. The 2013 agreement said the types of disputes it listed,

those arising under the 2013 agreement or relating to

employment, must be resolved, with our emphasis, “in accordance

with the [2008 arbitration agreement] and the [Rules], the

provisions of which are incorporated herein.” In doing so, the

2013 agreement followed the 2008 agreement and the Rules, but

only for the types of disputes the 2013 agreement listed. To the

extent the 2008 agreement or the Rules included a broader scope,

the 2013 agreement thus narrowed that scope. The 2013

agreement is not overbroad.

His third argument, lack of mutuality, similarly fails. An

agreement lacks mutuality if it requires one party but not the

other to arbitrate claims. (Armendariz, supra, 24 Cal.4th at p.

120.) The 2013 agreement requires arbitration of “all disputes

between [Torrecillas] and [Fitness].” This demonstrates

mutuality, not unconscionability.

Torrecillas incorrectly claims in his fourth and fifth

arguments the agreement improperly bars him from pursuing a

cause of action under the Unfair Competition Law (Bus. & Prof.

Code, § 17200 et seq.) and under the Private Attorneys General

Act (Lab. Code, § 2698).

As for the Unfair Competition Law claim, Torrecillas brings

one cause of action under the law but he seeks the type of relief

that is arbitrable. He alleges Fitness failed to pay him wages on

18

time and failed to reimburse him for business expenses. He seeks

two types of relief: 1) “full restitution, disgorgement, and/or

specific performance of payment of all wages that have been

unlawfully withheld” and 2) an injunction prohibiting Fitness

from “continuing to engage in the practices described above.”

Both types of relief are arbitrable.

Unfair Competition Law actions for equitable monetary

relief, including restitution and disgorgement, are arbitrable

(Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal.4th 303,

320 (Cruz)), making the first type of relief Torrecillas seeks

arbitrable.

Torrecillas’s request for an injunction is private in nature

and therefore arbitrable. Cruz limited arbitration of claims for

public injunctive relief, not claims for private injunctive relief.

(Clifford v. Quest Software Inc. (2019) 38 Cal.App.5th 745, 751

(Clifford); McGill v. Citibank, N.A. (2017) 2 Cal.5th 945, 955–956

(McGill) [distinguishing public injunctive relief from private

injunctive relief and stating Cruz applies to public injunctive

relief].) Relief that would primarily redress or prevent injury to

an individual plaintiff or to a group of individuals similarly

situated to the plaintiff is not public injunctive relief. (McGill,

supra, 2 Cal.5th at p. 955.)

Torrecillas sought a private injunction, which is arbitrable.

His request was for an injunction to stop Fitness from engaging

in the practices “described above.” Those practices were Fitness’s

alleged failures to pay Torrecillas. The beneficiary of an

injunction would be Torrecillas and possibly Fitness’s current

employees, not the public at large. (Clifford, supra, 38

Cal.App.5th at p. 753 [injunction to prevent employer from

committing further unfair business practices was a request for

19

private injunctive relief that could help only current employees

rather than the public at large]; cf. Cruz, supra, 30 Cal.4th at p.

315 [injunction to prevent health insurer’s alleged deceptive

advertising practices was “clearly for the benefit of health care

consumers and the general public” and therefore not arbitrable].)

Torrecillas’s Unfair Competition Law claims thus are arbitrable.

As for the claim about the Private Attorneys General Act,

Torrecillas’s argument is odd because he did not sue under that

law. Nonetheless, as to claims under both laws, the 2013

agreement resolves any conflict between the laws and arbitration

by excluding arbitration “where the law specifically forbids [it].”

So the agreement steers clear of what, in this case, is not an

issue. This does not demonstrate unconscionability.

His sixth and seventh arguments, about filing fees, also

fail. To initiate arbitration, an employee must pay Fitness a

filing fee “equivalent to the amount required for the employee to

file a complaint in court.” Fitness would pay any remaining filing

fee the arbitrator required. Torrecillas says this provision is

unfair, and he challenges the absence of a fee exception for

indigent people. Armendariz, supra, 24 Cal.4th at pages 111–

112, explains arbitration cannot require the employee to bear

expenses the employee would not have to bear if the employee

could bring the action in court. By pegging the fee to the fee an

employee would have to pay in court, the agreement complies

with Armendariz. Torrecillas does not claim indigence or show

he would qualify for a fee exception. Even if he did, again, the fee

agreement is keyed to what an employee would have to pay to file

in court. That means an employee who would qualify for a fee

waiver in court would owe the “equivalent” amount in

20

arbitration, which would possibly be nothing. The filing fees do

not shock the conscience.

Torrecillas has not shown a high level of substantive

unconscionability. His unconscionability defense fails.

III

Torrecillas incorrectly says issue preclusion prevents

Fitness from compelling arbitration.

Issue preclusion applies:

(1) after final adjudication;

(2) of an identical issue;

(3) actually litigated and necessarily decided; and

(4) asserted against one who was a party in the first suit.

(Samara v. Matar (2018) 5 Cal.5th 322, 327.)

The purportedly preclusive case is the unpublished case

Pimpo v. Fitness International, LLC (Sept. 13, 2017, D071140)

(Pimpo).

The trial court did not rule on issue preclusion. Its order

said nothing about Pimpo.

The Pimpo court affirmed a trial court order denying

Fitness’s motion to compel arbitration. (Pimpo, supra, D071140

at pp. [23–24].) The employee in that case agreed to arbitrate

when she applied online to work for Fitness. (Id. at p. [12].)

Fitness hired her to work at a gym. (Id. at p. [2].) Within a week

of starting work, she said a coworker began sexually harassing

her. (Ibid.) She filed a lawsuit against Fitness alleging sexual

harassment, failure to prevent sexual harassment, and other

causes of action. (Id. at p. [3].) The employee’s only agreement to

arbitrate was the one in her employment application, which had

expired before she brought her lawsuit. (Id. at pp. [12–13].)

21

In analyzing procedural unconscionability, the Pimpo court

noted the employee’s agreement was part of her employment

application and the employee declared she lacked the money for

an attorney to review her job applications. (Pimpo, supra,

D071140 at pp. [13–14].) The court also found the scope of the

arbitration agreement “incredible” because it could apply if she

got into a car accident with a Fitness employee or if she hurt

herself on workout equipment as a gym member. (Id. at p. [16].)

The Pimpo case has no preclusive effect on Torrecillas’s

case because the issue is not identical. Unconscionability is a

fact-specific defense. (Kho, supra, 8 Cal.5th at p. 124.) The

employee in Pimpo signed the agreement when she applied for

the job. She declared she could not afford an attorney. The facts

are different here—radically so. Torrecillas was not applying for

a job but receiving a promotion. He signed the 2013 agreement

as an award-winning employee with a long tenure at Fitness. He

had been District Vice President, was starting a job that paid sixfigure compensation, and was silent about whether he could

afford an attorney to review his employment contract.

Torrecillas’s argument also relies on similarities between

the Pimpo agreement and his 2008 agreement, but this ignores

the pertinent and different 2013 agreement. As we have

explained, the 2013 agreement limited the scope of arbitration to

disputes relating to the agreement and Torrecillas’s employment.

Torrecillas’s agreement did not include the types of disputes the

Pimpo court described because a car accident with a Fitness

employee or an injury from fitness equipment as a gym member

would not be related to the agreement or related to his

employment. The Pimpo case does not control.

The order is reversed. On remand, the trial court shall compel arbitration of all arbitrable claims. Costs are awarded to Fitness International, LLC.