Denson v. Keplr Vision, LLC

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 VALERIE DENSON, Case No.: 3:20-cv-2228-L-BGS

11 Plaintiff,

12 v. ORDER REQUIRING 13 KEPLR VISION, LLC, et al., SUPPLEMENTAL BRIEFING ON 14 Defendants, DEFENDANTS’ MOTION TO COMPEL (DOC. NO. 20) 15

16 Pending before the Court is Defendants’ motion to compel arbitration. (Doc. No. 17 20). Plaintiff opposed, and Defendants replied. (Doc. Nos. 25 and 26). 18 In the opposition, Plaintiff argues the arbitration agreement at issue (Doc. No. 20, 19 Exhibit 1 at 1-5) is unconscionable. (Doc. No. 25 at 10). Plaintiff relies, in part, on her 20 right to attorneys’ fees. (Id. at 11) (citing cases on fee-shifting). In response, Defendants 21 cite a clause from the agreement that authorizes the arbitrator to award a prevailing party 22 reasonable attorneys’ fees. (Doc. No. 26 at 9) (“the arbitrator may award the prevailing 23 party his or her expenses and fees of arbitration, including reasonable attorney fees.”) 24 The Court finds supplemental briefing is warranted on the above clause. The 25 Court therefore orders the parties to brief whether the above clause is substantively 26 unconscionable. See Pokorny v. Quixtar, Inc., 601 F.3d 987, 1004 (9th Cir. 2010) (“we 27 agree that because the fee-shifting clause puts [the party] who demands arbitration at risk 28 of incurring greater costs than they would bear if they were to litigate their claims in 1 || federal court, the district court properly held that the clause is substantively 2 ||unconscionable.”); Wherry v. Award, Inc., 192 Cal. App. 4th 1242, 1249 (2011) 3 || (although an arbitration agreement did not require the arbitrator to award costs against 4 || plaintiffs if they were unsuccessful, it authorized the arbitrator to impose them). The 5 || parties shall also address whether the clause — if unconscionable — is severable. 6 Plaintiff shall file her supplemental brief on (or before) July 9, 2021. Defendants 7 file their brief on (or before) July 16, 2021. The briefs are limited to five pages 8 || each. 9 IT IS SO ORDERED. 10 11 Dated: July 1, 2021 fee Soop 13 H . James Lorenz, 4 United States District Judge

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