*1 D005468, D006265, Dist., Apr. D006231. Fourth Div. One. [Nos. 1989.] COMPANY, INC., al., H. S. PERLIN et Plaintiffs and Appellants, v. al.,
MORSE SIGNAL DEVICES OF SAN DIEGO et Defendants and Repondents.
[Opinion partial publication.*] certified for * Court, Pursuant to California 976(b), opinion Rules of rules 976.1 and is certified for I, publication G, exception through with the of section subsections C II. section *2 Counsel Rand, Plaintiffs and Appellants. & Ziman for Day Day B.
Roland Gould, Rosen, Marks, Schiff, Virginia L. Shea & D. Joel P. Joshua Stephen *3 Rees, Mclnnis, Gilson, Heaton, Fitzgerald, L. Dean and R. Gilson & Peter Defendants and Sharkey McIntyre Respondents. & Opinion the owner of a and coin
BENKE, J. stamp these consolidated appeals, awarding from a the store owner judgment store and its consignors appeal $250 alarm com by caused of an negligence as the liquidated enforceable, clause is liquidated damage Because we find the pany. disputed affirm the judgment. we Summary
Factual Perlin, 4, 1974, (Perlin), On or about December H. S. Inc. and plaintiff San entered into a writ- Signal Diego (Morse) defendant Morse Devices of ten contract under which Morse to and fire alarm agreed provide burglar the contract are set stamp service to Perlin’s coin and store. The terms of The by forth in a form Morse to its customers. two-page printed provided the contract a number of in spaces equip- first has blank which page longhand. ment Morse to install at Perlin’s store is described agreed $50 Perlin to Morse is also set forth month fee per required pay Herbert S. Perlin the contract on behalf signed on the first longhand page. of the of the of the contract is on the first corporation. Paragraph page 4 is inmediately signature Paragraph printed contract above the lines. Liability. and Morse underlining “(4) bold with red states: type Morse’s system may or that the alarm not be represent compro- does warrant circumvented; system any by loss burglary, mised or that will prevent otherwise; in all cases system provide fire or or that will hold-up, acknowledges it is installed or intended. Subscriber for which protection insurer, all risk of loss or that Morse is not an that Subscriber assumes contents; made no Subscriber’s or to its that Morse has damage premises warranties, any representa- or nor has Subscriber relied on representation warranties, and Sub- or as set forth herein express implied, except tions or understands, para- that he has read and acknowledges particularly scriber and set forth Morse’s agreement obligation 18 and 19 of this graphs to Subscriber.” liability any damage maximum the event loss Paragraph and 19 are on second contract. Paragraphs page Damages. Liquidated “(19) provides: An and Not Insurer Morse Morse is by and hereto that It is understood and between agreed Insurance, Subscriber. any, if be obtained not an Insurer. will for, and are the services solely provided are based value of Charges upon of others to the of the Subscriber’s or the property property unrelated value Subscriber payable in Subscriber’s amounts premises. located risk of or other any to warrant Morse assuming consequential not sufficient or negligence perform. to the Subscriber due Morse’s failure liability of for the provide The Subscriber does not desire or not be for loss Morse and Subscriber Morse shall liable agrees or there- directly indirectly due occurrence consequences from, or avert. the nature of designed which the service is to detect From to be it is difficult to fix extremely the services performed, impractical *4 from the failure damages, any, may the actual if which result proximately hereunder, or the obligations the of Morse to of its part perform any on to the system the with the loss resulting failure of to properly operate If liable for loss or due a Subscriber. Morse should found shall be system, any liability the or its its part respect, failure on of Morse aggregate to the Subscriber of an amount to the equal limited refund to monthly Fifty ($250.00) or to the of Two Hundred (6) payments, six sum Dollars, less, not as a shall be as liquidated damages whichever sum liability para- and this shall be exclusive. The of this penalty, cause or damage, irrespective shall in the event loss or graph apply indirectly or the directly property perfor- results or from origin, person mance of the set forth the terms of obligations or non-performance otherwise, Morse, contract, o f its agents or from active or negligence, employees.” December
By automatically its terms the alarm contract was renewed on 4, 1979, years. for a of five period 25, 1980, occurred evening August burglary
Sometime during Perlins stole burglar(s) Perlin’s coin and store. to the stamp According $958,000. a wholesale value of stamps Approximately coins and $200,000 consignment was held Perlin on being stolen property from customers. ran
Before store the cut a line which from entering burglars telephone When alarm in Perlin’s store to Morse’s central station. burglar system cut, had indicating interruption line was that an service signal signal the Morse Upon receiving occurred was received at station. Pacific & employee Telegraph Company Morse contacted Telephone it to of a of Morse identify and asked number (Pacific Telephone) clients had experienced interruption. telephone company promptly to Morse the had reported interruption occurred at Perlin’s store. Inexplica- bly, after receiving no one at telephone company’s report Morse took any further steps protect store or its contents.
Perlin carried no insurance which covered the losses sustained in the burglary.
Proceedings Below 28, 1981, Perlin, shareholders, Perlin, On April its four Herbert Gertrude Perlin, Robyn Joel Perlin and Perlin and twelve of its consignors filed a Morse, complaint against three Morse employees and Pacific Telephone. Eventually the Perlin complaint amended to include as defendants Inc., Morse, Berlin, Berlin Enterprises, the owner of and Robert the general manager of Morse at the time of the burglary.
In its final pleading, the plaintiffs alleged Morse was liable negligently for the alarm monitoring system and failing give warning to the Perlins on the night the burglary, failing investigate Pacific re- Telephone’s information, contract, to its sponse request breach of fraud in inducing contract, Perlin to enter into the 1974 fraud execution of following *5 agreement, renewal, rescission of the 1974 contract and the 1979 and inten- tional and negligent spoliation evidence.
In one of its four amended complaints, the Perlins also alleged Morse was liable for failing to apprise Perlins of the availability of a more advanced system. security Morse demurred to that cause of action and its demurrer was sustained without leave to amend.
Trial commenced 1, on the plaintiffs’ remaining causes of action on April 1986. The case was tried jury without a and all parties stipulated to dismiss- al of Pacific from the Telephone By case. virtue of order of the previous court, the superior defendants’ liability was heard prior to trial of plaintiffs’ damages. 22, 1986,
On April following close of evidence and argument on the issues, liability the trial judge issued a tentative ruling which he found Morse’s negligence caused the losses the plaintiffs in the experienced burgla- ry. $250 Nonetheless the trial court found Perlin’s damages were limited to by the 19 of the paragraph The trial court agreement. further found Morse did not owe of the remaining duty plaintiffs care. deci- entered a statement of the court
Following plaintiffs’ request, 6, 1986, the statement judgment conforming On with August sion. decision was also entered. and October motion a new trial was denied on plaintiffs’ 6, 1986, judgment. from the
they timely appeal August filed a notice of Morse, 7, 1987, fees to Robert attorney On awarded April judge trial Berlin, and Morse’s Plaintiffs employees. Berlin and two of Enterprises fees and this court attorney from the orders granting defendants appealed judg- underlying from the appeals plaintiffs’ appeal consolidated those ment.
Discussion I Judgment From the Appeal Perlin, consignors its its argue paragraph On shareholders and appeal it does not meet the is not enforceable because Morse governs liquidated of Civil Code2section requirements also Alternatively They 19 is unconscionable. they argue clauses. paragraph limits rather merely 19 is because it assert defective paragraph them. than liquidates enforceable, Perlins if the trial court that even argue paragraph fraud, them on their claims for rescission
nonetheless erred relief denying consignors argue paragraph of evidence. addition the spoliation to the con- they their because were Morse cannot limit claims *6 tract. dismissing order also ask to review the trial court’s earlier Perlins us them claim that should have kept apprised
without leave their Morse security systems. in advances them
Finally judgment the court to failing give believe erred plaintiffs defendants and Berlin and some of the individual against Enterprises failing findings respect to make individuals. judgment.
We merit in these and affirm the any arguments find no statutory specified. All Civil unless otherwise references are to the Code A. Civil Section 1671 Code 1, 1978, July “The to a provided: parties
Prior to section be may therein an amount which shall to be agree upon presumed contract thereof, when, breach from the nature damage by the amount of sustained case, extremely it be or difficult to fix actual impracticable would damage.”3
In Better v. Amer. Teleg. Food Mkts. Dist. Co. Cal.2d 179 (1953) [253 10, 42 580], P.2d A.L.R.2d our Court found a Supreme liquidated damage in a alarm met the provision burglar requirements contract this version of 1671 as a matter of contract in Food section law. The Better Mkts. was in there, most similar to the one in Morse’s In addition respects contract.4 as here, an alarm failed to react which promptly to a indicated company signal some that manner of theft was at a taking place place subscriber’s of busi- (Id. Court, ness. at 182-183.) The following Supreme holdings cases, earlier that the then acknowledged under current version of section 1671 the party seeking enforce a clause liquidated damage bore the burden of pleading proving impracticability. (Id. p. 185.) Nonethe- less the court on went to find: “There being no reasonable basis which upon loss, predict any the nature and extent of or much of that how loss the for, defendant’s of performance might failure is account it certain that it would have been ‘impracticable extremely the actual dam- difficult fix Code, age.' (Civ. 1671). §
“The validity of a clause for liquidated damages that the requires parties to the contract therein ‘agree upon an amount which shall be presumed to be the amount by . . .’ sustained breach thereof [Citation.] This amount represent must the result of a by reasonable endeavor a fair estimate parties average compensation loss that may sustained. .... contention that the plaintiff’s agreed [Citations.] amount did not an by the represent parties endeavor to estimate the proba- ble is on damage based evidence the liquidation that clause was part material printed form generally by contract used the defendant in dealing with such subscribers as the and that the defendant did not plaintiff, 1, 1978, July Prior to preceded section 1671 was a version of section 1670 which stated: “Every paid, compensation amount of to be or other to be made, thereof, obligation, for a breach of in anticipation an is determined is to that extent void, except provided expressly as in the next section.” “ 4In Better provided: agreed by Food Mkts. the contract ‘It and between *7 insurer, payments solely Contractor is not an that the hereinbefore named are based on described, system the value of the service in maintenance that it impracticable extremely any, may and fix damages, proximately difficult to the actual if result from a perform failure to such perform resulting services and in case of failure to such services and a liability fifty loss its hereunder shall be liquidated limited to and fixed at the sum of dollars as ” damages, liability and not penalty, (40 184.) as a and this shall be p. exclusive.’ Cal.2d at
1296 its business or the character conducting manner of investigate the plaintiff’s to the parties agreed liquidation value of stock. Nevertheless and its fully not aware they is no evidence that were and there provisions, for.” making liquidated provided circumstances it desirable 186-187, italics added.) at (Id. Better Mkts. was and similar liquidated in Food followed holding in v. in alarm contracts were Atkinson
damage provisions
upheld
Pacific
v.
18];
P.2d
Ins. Co.
Extinguisher
Fire
Co.
However rationale used in Better Food Mkts. and Atkinson was Signal Fund Ins. Co. v. Morse Devices (See free criticism. Fireman’s Note, 151 (1984) Cal.Rptr. 756]; Damages—Liq- [198 Sweet, 209; Liqui- Penalties Damages (1954) uidated So.Cal.L.Rev. Comment, 84, 109; Prob- Damages dated Cal.L.Rev. (1972) California ability Possibility in Clauses Liquidated-Damages (1953) Versus Comment, 832; and the Harm Rule” Liquidated Damages Stan.L.Rev. “No 9 Stan.L.Rev. noted that (1957) 382.) particular, commentators forms, had the court although defendants both cases used preprinted in fact in a endeavor nonetheless found the had reasonable engaged Witkin, ed. Summary (7th to estimate fair Cal. Law compensation. (See noted that in cases the 1960) 190-191.) commentators also both § were, effect, than liability, clauses limitations on the defendants’ rather
1297 usual recovery the which assures claimants liquidated provisions, a substantial amount. (Ibid.)
While the in Better Food Mkts. and Atkinson has reasoning employed consistently been the results in those has been questioned, reached cases Commission, study in a the accepted. Indeed for Law Revision prepared one Better Mkts. on grounds commentator endorsed Food substantive directly the court’s did not was a decision. opinion address: “This proper burglar system may The alarm have involved use of new scientific tech- that, error, along with human could alarm niques expose burglar the com- they to risks. That had the pany high thought they transferred this risk to clause, user is shown the the that the an language company not insurer, $15 they and the a month If not charge. away could contract risk, they insure; would have likely to and since it is that the user would also insure, this would probably result overinsurance. Such a be clause should enforced in high-risk, a when low-compensation service enforcement is 84, what parties expected.” (Sweet, op.cit. 115; Cal. L.Rev. Cal. Law Revision Com. Rep. (1973) 1262.)5
Thereafter, in its Legislature report recommending amendments 1671, sections 1670 and the Law Revision Commission itself cited Better Food Mkts. for the that a proposition liability limitation on is acceptable where the beneficiary of the limitation engaged in high-risk enterprise. Cal. (13 Law Com. Revision Rep. (1976) pp. 1741.) In 1977 the Legislature adopted commission’s recommendations without (Stats. change. 5.) ch. In particular the Legislature § section 1670 repealed and amended section to read in pertinent part: This section “(a) does not apply case where another statute expressly applicable the contract prescribes the rules or standard determining validity provision the contract liquidating damages for the breach of the contract.
“(b) as Except provided (c), subdivision in a provision liquidating damages for the breach contract is valid unless the party seeking invalidate the provision establishes that the provision was unreasonable under the existing circumstances at time the contract was made.”6 general study concluded that sections and adequately 1671 did not state the respect
law and that amendments to those sections which would contracting parties leeway allow (11 more to determine were needed. Cal. Law Re Rep., supra, 1289-1290.) Com. study vision at also par recommended that where the equal bargaining ties not power, liquidation do have judicial clauses should receive careful (Id. scrutiny. p. 1291.) provides: “(c) validity 6The remainder of liquidated damages section 1671 provi of a (d) sion shall determined (b) under subdivision under liqui- subdivision where
1298 to 1977 to the amendments Commission comment
The Law Revision following in terms: amendments the 1671 the effect of the section described general rule (b) in new 1671 to subdivision provide “Section is amended damages against except favoring liquidated the enforcement of case, the law under In a consumer prior in a consumer case. consumer 1671, still (d) applies.” in subdivision 1670 and continued former Sections added.) (Italics the Morse the Perlins from arguing view the foregoing prevents our inis paragraph 19 language is invalid under section 1671. aas language approved from the indistinguishable
all material respects Mkts., Here, the as Better Food Mkts. in of law in Better Food matter nominal in relation to alarm company to the provided compensation Thus, the as it liability. were to law apply the we company’s potential contract was 1977 amendments on the the grounds existed to the prior to in be Better Food Mkts. uphold into we would bound entered Co. (See Zurich Ins. a matter of law. 19 of the Morse contract as paragraph Industries, Inc., at Cal.App.2d p. 924.) v. Kings supra, that, suggestion fare we to their adopt The Perlins no better were would renewal, by the amend- governed of the the contract should be light Signal v. Morse Fireman’s Fund Ins. Co. (See ed version of section 1671. Devices, the 1.) history fn. the statute p. As supra, favor enforcement of designed liqui- the 1977 amendments were suggests, the who wish by shifting parties clauses burden damage proof dated a new statuto- Significantly, developing liquidation provisions. invalidate as in the ry the of the amendments reasonable accepted, scheme drafters in Better industry, the risk allocation mechanism approved alarm service More Rep., p. 1741.) impor- Food Cal. Law Revision Com. (13 Mkts. unavailable in a commercial give in an consumers tantly, protection effort statute, of the new the (d) subdivision Legislature repeated, setting, Food Mkts. had rise to the Better very holding standard which given amendments do not sanction These circumstances suggest under Bet- permitted interference in alarm service contracts than greater Rather, very continuing upon ter Mkts. reliance Legislature’s Food in Better Food Mkts. the risk allocation suggests language interpreted (1) party for re- sought to be from either: A to a contract dated recovered [fl] services, rental, by par- for purchase, personal property primarily party tail or such or [fí](2) party ty’s personal, family, purposes; property A to a of real for or household or lease [10(d) dwelling by party dependent upon party support. for In the use those as a or liquidating (c), provision in a contract cases described in subdivision may agree except void that the to such a contract therein breach of the contract is damage a breach upon thereof, presumed amount shall be to be the amount of sustained an when, case, extremely impracticable nature it difficult from the would damage.” fix the actual scheme in Better Mkts. and meets the procedural Food its upheld progeny Thus, since requirements (b). substantive section subdivision 19 is from paragraph indistinguishable provision *10 Mkts., in Better we conclude Morse contract approved easily Food could the 1671, meets of requirements (b), the of section subdivision as a matter law. However, even if we with our reservations and dispense indulge to alarm Perlin’s that Better Food Mkts. has no ser argument application 1978, vice contracts entered into cannot disturb trial court’s after we the enforce 19. decision to and substantive defects paragraph procedural record, by asserted Perlin are the the trial flatly by including contradicted instance, court’s For findings.7 although detailed we with Perlin’s agree the argument preprinted clause did not a realistic liquidation present oppor contract, tunity to over of negotiate that term the that inequality bargain did not ing strength itself make unreasonable. As the court in paragraph 19 Dunes, Kurashige v. Indian Inc. 200 614 (1988) Cal.App.3d [246 310], Cal.Rptr. stated: “The a is based meaningfulness party’s choice not only on ability his to the other but also on to obtain relationship party his the goods or services are the subject which the contract from parties’ others. Here the record that against discloses insurance the [Citation.]” theft risks Morse unwilling to assume was nonetheless available to the Perlins and that they made business to forego decision that means of protection.
Moreover the the they unfairly record rebuts Perlins’ claim were sur- prised by 19. the trial paragraph As noted his judge statement deci- sion, contract, 4 of “[paragraph just said above appearing signature lines, calls attention to the clause on the liquidated damages page second and is set forth bold with certain print underlining red setting forth Morse’s obligations/liability and drawing attention liquidated damages clause contained in 19 on the second paragraph page.” Perlin, The trial judge also noted Herbert S. who signed the contract on Perlin, behalf of testified “had ... he and not practice custom reading all, any contracts of kind at has practice existed all of his adult life.” The record also discloses that although Morse salesman who obtained Perlin account had no recollection he had specific that dis- Perlins, cussed the liquidated damage provision with the his usual practice was to out point We liquidated damage clause subscribers. also note service, all the contracts presented Perlins their previous alarm San Alarm Diego contain Company, remark- 7Accordingly, Corp. (1982) what we said in & M FMC Cal.App.3d A Produce Co. v. Cal.Rptr. 1], repeating: 38 A.L.R.4th “We bears wish to stress factual [186 substantially appellate key nature of the issues our limits role. Where the of several resolution legal largely presented, issues turns on drawn inferences from the facts we are hesitant to in judgment terfere sound with the of the trial court.” evidence, cannot we ably agreement. light similar Morse’s was enforceable even court’s conclusion quarrel paragraph with the trial Ins. Co. v. (See did read or understand it. Zurich the Berlins though Inc., Industries, 924-925.) Kings reasonable- Berlin’s attack on the substantive The record also forecloses aware the 19. The trial court found the Berlins were ness of paragraph $50 $300 to Morse were far charge paid initial a month service payment of their less the value premium protect than insurance required finding event of theft. The trial court’s inventory supported $25,000 it have from Berlin cost testimony Joel who stated would *11 $500,000 year inventory. light relatively insure of In of the small com- received, the limitations im- pensation Morse Berlin cannot demonstrate by parties’ 19 reallocated the risks of the posed potentially high paragraph A & M unexpected (See in an unreasonable or manner. bargain objectively Sweet, 487; Co. v. FMC 135 at Corp., supra, Cal.App.3d p. supra, Produce 60 115.) at p. Cal.L.Rev. the alarm service
Finally, although we note that like other paragraph review, may been limit a subject judicial contracts which have subscrib- them, er’s than fact not take contract rather that does the predict v. Fire Extin- (See outside either version of section 1671. Atkinson Pacific Co., guisher 193; 40 Cal.2d at Cal. Law Revision Com. supra, p. Rep., at supra, 1740-1741.) Unconscionability
B. of Morse liquidation provisions
The Berlins also the con argue v. are unconscionable. As this court in A & M Produce Co. explained tract “Unconscionability 484: has Corp., FMC at Cal.App.3d page consistently as a has been long recognized been common law doctrine which statutory in the of authoriza applied by specific California courts absence adopt tion. And did not section 2-302 although Legislature [Citations.] Commercial as part [citations], California’s version Uniform Code re accompanying commentary, identical with language, complete Civil cently enacted as section 1670.5 Code.”8 unconscionability Unlike section the doctrine of is not limited to or to It particular types of contracts of contracts. particular provisions all all A M Co. v. FMC applies (See contracts. & Produce “(a) provides part: 1670.5 If as a of law finds the contract or Section the court matter any may court clause of the to have been unconscionable at the time it was made the contract contract, may without the un refuse to enforce the or it enforce the remainder of the contract clause, may any clause application or it so limit unconscionable as to conscionable avoid unconscionable result.” by p. 485.) the standards Corp., supra, setting apply “[U]nconscionability ‘procedural’ the doctrine we said: has both a ‘substantive’ element. [Citations.] “The element focuses on factors: and ‘sur- procedural ‘oppression’ two arises from an prise.’ ‘Oppression’ inequality bargaining pow- [Citations.] er which real results no and ‘an absence of negotiation meaningful choice.’ involves the extent which the ‘Surprise’ supposedly [Citations.] agreed-upon terms of the in a form bargain prolix printed hidden draft- by ed the party to enforce the terms. seeking disputed Charac- [Citations.] teristically, the form contract is drafted party superior bargaining position. [Citation.]
“Of course the mere fact term that is not read or understood nondrafting party drafting party occupies superior bargaining position will authorize a court to refuse to enforce the con- tract. an Although argument can made that contract not actively terms negotiated between fall outside the ‘circle assent’ which con- stitutes the actual agreement [citation], practicalities commercial dictate *12 that unbargained-for terms only they be denied enforcement where are also substantively unreasonable. precise No definition of substantive [Citations.] unconscionability can proffered. be Cases have talked in ‘overly terms of out, harsh’ or ‘one-sided’ results. One pointed commentator has [Citations.] ‘ however, . . that . unconscionability only turns not on a “one-sided” result, but on “justification” also an absence of for it’ .... [citation] most detailed specific commentaries observe that a contract is largely an allocation of risks between the parties, and therefore that a contractual term is substantively if it suspect reallocates the risks of the an bargain in objectively or unreasonable manner. unexpected But all [Citations.] rather, unreasonable risk unconscionable; reallocations are enforceability clause is tied to procedural aspects unconscionability [citation] such that greater the unfair or surprise inequality bargaining power, the less unreasonable the risk reallocation which bewill tolerated. [Cita- (135 pp. 486-487.) tion.]”
In our view reasonableness standard set forth in section subdivi- sion (b), while giving contracting parties greater they enjoyed freedom than law, under prior nonetheless scrutiny for more is provides judicial than allowed the unconscionability under standards we in A articulated & M that, Produce Co. Indeed the comments the 1977 suggest amendments unlike the doctrine of unconscionability, an unreasonable risk allocation amend, may alone invalidate a (Com. clause. Since, seen, the requirements as we the Morse contract meets 1671.)9 have § cannot make claim the is by section the Berlins imposed nonetheless unconscionable.10
C.-G., II* affirmed; is affirmed appealed part, is the order from judgment instructions. Each part corrected in and reversed and remanded part to bear its own on appeal. costs party
Wiener, J.,B. Acting concurred. HUFFMAN, J. in the result based Berlin’s intentional upon I concur to read the of the Morse contract. failure 15, 1989, May denied and appellants’ A for petition rehearing July review Court was denied 1989. petition Supreme considered, existing making time of the “All the circumstances at the of the contract range including relationship damages provided in bear to the that the the contract reasonably anticipated making could at the time of of the contract. Other harm that liquidated damages considerations in the of whether the is relevant determination amount include, to, high or so low as to be but are not limited such matters as the rel so unreasonable parties, represented equality bargaining power parties of the of the whether the were ative made, lawyers anticipation proof of at the time the contract was actual inconvenient, costly difficulty proving and foreseeabili would be causation (Com. ty, liquidated damages provision and whether included in a form contract.” *13 amend, 1671.) to § regard the doctrine In this we note the societal interests articulated in section 1671 and of unconscionability regulation quite explaining Pro similar. autonomy question give parties to fessor Sweet said: “The of how much the law should em part of ploy clauses that control the recoverable contract breach is amount party autonomy. . . general issue of . contracts, years “Largely past proliferation legal because of adhesion have seen a judicial through interpre- There controls on contracts. more intervention the back door and, now, increasingly through enforce contracts tation direct intervention refusal to unjust. There state and courts think are is also more control of standardized contracts fed- directly agencies; regulatory the Uniform Code eral section 2-302 of Commercial invites aspects leg- police proliferation the worst all standardized sales contracts and a courts making particular (Sweet, supra, islation controls contracts situations.” 85-86, omitted.) Cal.L.Rev. at fns. unconscionability: We reiterated these in our discussion of social benefits concerns “[T]he severely party appears associated with freedom of contract are skewed where it that had matter, actually ‘agreed’ been aware of the term he or had he real choice to which (A FMC Corp., he never have assented inclusion of the term.” M Produce Co. v. would & p. 490). ante, footnote, page *See 1289.