Plaintiff Rudolf Lang filed this action against Defendants Skytap, Inc. and Thor Culverhouse, alleging ten causes of action surrounding the termination of Plaintiff's employment with Defendants. (Defs.' Not. of Removal, Ex. A ("Compl."), Dkt. No. 1.) Pending before the Court is Defendants' motion to compel arbitration. (Defs.' Mot. to Compel, Dkt No. 20.) The Court deems the matter suitable for disposition without hearing pursuant to Civil Local Rule 7-1(b). Having considered the papers filed by the parties and the relevant legal authority, the Court GRANTS Defendants' motion to compel arbitration.
I. BACKGROUND
Plaintiff entered into an employment agreement with Defendants on December 2, 2013. (Domanico Decl., Ex. 1 ("Emp't Agree't") at 3, Dkt. No. 22-1.) The employment agreement signed by both parties contained an agreement to arbitrate all claims between the parties. (Id. ) The arbitration agreement provides, in relevant part:
[A]ny dispute or controversy arising out of, relating to, or concerning any interpretation, construction, performance, or breach of this agreement, will be settled by arbitration to be held in King County, Washington, in accordance with the Employment Dispute Resolution Rules then in effect of the American Arbitration Association. The arbitrator may grant injunctions or other relief in a dispute or controversy. The decision of the arbitrator will be final, conclusive, and binding on the parties to the arbitration. Judgment may be entered on the arbitrator's decision in any court having jurisdiction. The company and I will each pay one-half of the costs and expenses of the arbitration, and each of us will separately pay our counsel fees and expenses.
(Emp't Agree't at 3.) The arbitration agreement provides that both parties agree to arbitrate all claims, including claims for wrongful termination, breach of contract, breach of the covenant of good faith and fair dealing, negligent or intentional infliction of emotional distress, negligent or intentional misrepresentation, *426negligent or intentional interference with contract, and claims for any other violation of federal, state, or municipal statute. (Id. ) Both Plaintiff and Defendants may seek equitable relief as necessary from a court of competent jurisdiction. (Id. ) The Agreement also contains a severability clause, stating that, "if one or more of the provisions in this Agreement is deemed void by law, then the remaining provisions will continue in full force and effect." (Id. ) Additionally, the offer letter from Defendants to Plaintiff asserts that the arbitration agreement in the employment agreement is a term of Plaintiff's employment. (Domanico Decl., Ex. 2 ("Offer Ltr.") at 5, Dkt. No. 22-2.)
Plaintiff filed this action in Contra Costa County Superior Court on October 6, 2017. (Compl.) Plaintiff asserted claims for: (1) wrongful termination; (2) breach of employment contract; (3) breach of the covenant of good faith and fair dealing; (4) promissory estoppel; (5) failure to pay all wages; (6) intentional interference with contract; (7) intentional misrepresentation; (8) "promise without intent to perform;" (9) intentional infliction of emotional distress; and (10) declaratory relief. (Id. at 1.) On February 27, 2018, Defendants removed the action to this Court. (Defs'. Notice of Removal, Dkt. No. 1.)
Defendants filed the instant motion to compel arbitration on August 6, 2018. (Defs.' Mot. to Compel.) Plaintiff filed his opposition on August 20, 2018. (Plf.'s Opp'n, Dkt. No. 26.) Defendants filed their reply brief on August 27, 2018. (Defs.' Reply, Dkt. No. 28.)
II. LEGAL STANDARD
Under the Federal Arbitration Act ("FAA"),
III. DISCUSSION
This arbitration agreement relates to interstate commerce. Defendant Skytap is a private Washington state company offering a cloud computing service, and in so doing, has employees in twenty-eight states and major facilities in four states. (Colish Decl., at ¶¶ 2-5, Dkt. No. 21.) Therefore, the FAA governs this arbitration agreement
In opposing Defendants' motion to compel arbitration, Plaintiff argues that the arbitration agreement is unconscionable, and that no one provision can be severed so as to make the agreement conscionable. (Plf.'s Opp'n at 1, 8-9.) Under California law, the party opposing arbitration bears the burden of proving that the arbitration provision is unenforceable.
*427Sonic-Calabasas A, Inc. v. Moreno ,
A. Procedural Unconscionability
Procedural unconscionability "addresses the circumstances of contract negotiation and formation, focusing on oppression or surprise due to unequal bargaining power. Pinnacle Museum Tower Ass'n. v. Pinnacle Market Development ,
i. Adhesion Contract
Plaintiff contends that because the contract was one of adhesion, it is procedurally unconscionable. (Plf.'s Opp'n at 2-3.) Defendants do not dispute this. (Defs.' Reply at 2-3.) An arbitration agreement, however, is "not rendered unenforceable just because it is required as a condition of employment or offered on a 'take it or leave it' basis." Lagatree v. Luce, Forward, Hamilton & Scripps ,
The arbitration agreement in question is a standard adhesion contract. It was presented to Plaintiff on a take it or leave it basis, and as a condition of his employment with Defendants. (Dominico Decl. at ¶¶ 6-7.) On the other hand, Plaintiff does not claim to have been surprised by the agreement, nor does he claim to have been "lied to, placed under duress, or otherwise manipulated into signing the arbitration agreement." Baltazar v. Forever 21, Inc. ,
ii. American Arbitration Association Rules
Plaintiff also argues that there is additional procedural unconscionability because the agreement "does not provide the rules governing the arbitration or even a means of accessing those rules," relying on Trivedi v. Curexo Technology Corporation ,
In Trivedi , the plaintiff claimed procedural unconscionability based on the failure of the defendant to provide plaintiff with the American Arbitration Association ("AAA") rules governing their arbitration agreement.
In Baltazar , the California Supreme Court distinguished Trivedi .
The same distinction is drawn here. Like Baltazar , Plaintiff does not challenge the AAA rules; instead, each of Plaintiff's substantive challenges are directed at the explicit language in the arbitration clause-"matters that were clearly delineated in the agreement [he] signed." (Plf.'s Opp'n at 4-8.) Had Plaintiff challenged any unfair provisions hidden in the AAA rules for employment dispute resolution, Trivedi might apply to require a closer scrutiny. The failure to provide Plaintiff with a copy of the AAA rules for employment dispute resolution alone does not affect the procedural unconscionability analysis. It maintains its minimal procedural unconscionability as an adhesion contract. Thus, for the agreement to be unenforceable, the Court must find a high degree of substantive unconscionability.
B. Substantive Unconscionability
"Substantive unconscionability pertains to the fairness of an agreement's *429actual terms and to assessments of whether they are overly harsh or one-sided." Pinnacle Museum Tower Ass'n ,
i. Choice of Law and Forum Selection
First, Plaintiff challenges the choice of law provision and the related forum selection clause. (Plf.'s Opp'n at 5-6.) The agreement provides that all arbitration subject to the agreement will be "held in King County, Washington," and that the "internal laws of the state of Washington ... govern this agreement." (Emp't Agree't at 3.) Plaintiff argues that the forum selection and choice of law provisions, if enforced, would force Plaintiff to forfeit rights that would otherwise be afforded him if he were able to file the suit or arbitrate the claims in California.
The forum selection clause and choice of law provision must be read jointly because they are "inextricably bound up" together. Verdugo v. Alliantgroup, L.P. ,
While the burden of proving why a contractual provision should not be enforced typically is borne by the party opposing enforcement, the burden shifts when the claims at issue are based on *430unwaivable rights created by the California legislature. Verdugo ,
In Verdugo , the plaintiff's claims were all based on her unwaivable statutory rights under the California Labor Code. Verdugo ,
Here, the forum selection clause, which requires that the arbitration take place in Washington State, is alone not unreasonable. It is logically connected to Defendants as their principle place of business. (Colish Decl. at ¶ 2.) The related choice of law provision, however, requires Plaintiff to give up California claims. Plaintiff is bringing several causes of action grounded in the California Labor Code, specifically Labor Code §§ 201, 202, 216, and 218.5. (Compl. at 7.) California Labor Code § 219 makes the rights formed under these sections unwaivable. Thus, the nonwaivability of these rights makes the forum selection and related choice of law provisions unenforceable.
Defendants do not dispute this. Instead, they repeatedly state that they have informed Plaintiff that they will not enforce these provisions, but are willing to hold the arbitration in California and apply California law. (Defs.' Mot. to Compel at 11; Defs.' Reply at 5.) This proffer, however, does not rid the original provision of its substantive unconscionability. California law requires that contracts be analyzed for unconscionability "at the time [they are] made."
*431Defendants cannot meet their burden of showing why this Court should uphold the choice of law provision laid out in the arbitration agreement by offering to sever the problematic terms. The forum selection clause and related choice of law clause is, therefore, substantively unconscionable.
ii. Attorney's Fee Provision
Attorney's fee provisions are unconscionable when they preclude a plaintiff from recovering attorney's fees that the plaintiff would otherwise be entitled to under statutory law. Laughlin v. VMware, Inc. , No. 5:11-cv-00530-EJD,
iii. Arbitration Cost-Splitting Provision
"[W]hen an employer imposes mandatory arbitration as a condition of employment, the arbitration agreement or arbitration process cannot generally require the employee to bear any type of expense that the employee would not be required to bear if he or she were free to bring the action in court." Armendariz ,
Here, the cost-splitting provision states: "the company and I will each pay one-half of the costs and expenses of the arbitration." (Emp't Agree't at 3.) Defendants do not dispute this provision or that it is substantively unconscionable. Because this arbitration agreement is between an employer and an employee, requiring the employee to pay a cost that would not be required of the employee in court-i.e. , half of the costs and expenses of the arbitration-is unconscionable.
C. Severability of Unconscionable Provisions
Even if substantively unconscionable terms are found in an agreement, they do not automatically render the entire agreement unenforceable. Serpa ,
The court in Armendariz weighed three factors in determining whether the unlawful provisions were severable: (1) whether the provision relates to the agreement's chief objective, (2) whether the arbitration agreement contained "more than one unlawful provision" that would suggest a "systematic effort to impose arbitration on an employee simply as an alternative to litigation, but as an inferior forum that works to the employer's advantage;" and (3) a lack of mutuality that permeated the entire agreement.
Plaintiff argues that because there is more than one unconscionable provision, the entire arbitration agreement should not be enforced. (Plf.'s Opp'n at 8-9.) On the contrary, courts in this Circuit have found arbitration agreements with two or more unconscionable provisions to be enforceable by severing those unconscionable terms and enforcing the remainder of the agreement. For example, in Pope v. Sonatype, Inc ., the court found three terms in an employment agreement to be unconscionable-an injunctive relief carve out, a forum selection clause, and a requirement that the plaintiff pay his own attorney's fees. No. 5:15-cv-00956-RMW,
In some instances, courts have been unwilling to enforce an arbitration agreement with more than one unconscionable provision. In such cases, however, the entire agreement lacked mutuality and the severance of any discrete provision would not have removed the taint of unconscionability from the agreement. For example, in Bridge Fund Capital Corp. v. Fastbucks Franchise Corporation , the Ninth Circuit found multiple unconscionable provisions in a franchisee agreement, including an unconscionable choice of law and forum selection provision, an unconscionable class action waiver, and multiple terms that constituted an unconscionable lack of mutuality between the parties.
Here, the arbitration agreement has a severability clause, allowing the Court to sever the unconscionable terms and enforce the remainder of the agreement. (Emp't Agree't at 3.) Additionally, the arbitration agreement is mutually binding on both parties, making severance an option to cure the substantive unconscionability. (Id. ) Although there are three provisions that would need to be severed, this Court finds that each of the provisions can be severed without disrupting the agreement's chief objective- for the parties to submit any employment dispute arising between them to arbitration before a neutral arbitrator, subject to the AAA's rules for employment arbitrations. Importantly, none of the terms show a lack of mutuality, as none require Plaintiff to waive rights that are still reserved for Defendants.
First, the forum selection clause and related choice of law clause are easily severable. See Galen v. Redfin Corp. , Nos. 14-cv-05229-TEH, 14-cv-05234-TEH,
Second, the attorney's fee provision is also easily severable. See Grabowski ,
Lastly, the cost-splitting provision is easily severable without disrupting the agreement's chief objectives. See Castaldi v. Signature Retail Servs., Inc. , No. 15-cv-00737-JSC,
Because the unconscionable terms are severed, the Court finds there is no substantive unconscionability.
IV. CONCLUSION
Having severed the three substantively unconscionable collateral provisions, the arbitration agreement is now enforceable. Because the procedural unconscionability is minimal, and the substantive unconscionability is eliminated through severance, the Court hereby GRANTS Defendants' motion to compel arbitration. The Court shall stay the proceedings in the instant case pending resolution of the arbitration.
IT IS SO ORDERED.
Notes
The agreement not only applies to Defendant Skytap, but also to Defendant Culverhouse, as an agent, namely, the Chief Financial Officer, of Defendant Skytap. Defendants assert that the causes of action alleged by Plaintiff against Defendant Culverhouse are inseparable from the causes of action against Defendant Skytap. (Defs.' Mot. to Compel at 5.) Plaintiff does not dispute this assertion.
Plaintiff does not raise any concern or argument as to any burden that might be placed on him by having to travel to Washington State for arbitration. (Plf.'s Opp'n at 5-6.) As such, the Court focuses on the rights that might be waived by enforcing these provisions.