BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          SB 1241 (Wieckowski)
          Version: April 18, 2016
          Hearing Date: April 26, 2016
          Fiscal: No
          Urgency: No
          RD   


                                        SUBJECT
                                           
                                      Contracts

                                      DESCRIPTION  

          This bill, with respect to contracts entered into, modified, or  
          extended on or after January 1, 2017, would make any provision  
          in a consumer or employment contract that purports to designate  
          the venue in which a controversy arising from the contract may  
          be litigated, or the choice of law to be applied, voidable by  
          the consumer or employee, under specified circumstances.   
          Further, this bill would prohibit a seller or employer from  
          requiring a consumer or employee to agree to such a provision,  
          as specified, and if such a provision is required, it shall be  
          inoperative and California law shall apply in its place. Lastly,  
          this bill would authorize a court to award a plaintiff enforcing  
          his or her rights under this bill attorney's fees, as specified.  
            

                                      BACKGROUND  

          As a general matter, arbitrations provide an alternative method  
          of dispute resolution, outside of the courts, wherein a neutral  
          third party, known as the arbitrator, renders a decision after a  
          hearing to which both parties have had an opportunity to be  
          heard. Under California law, there are two distinguishable types  
          of arbitration: judicial arbitration (also known as  
          court-annexed arbitration, governed under Code of Civil  
          Procedure Sections 1141.10 -1141.31) and private arbitrations  
          (also commonly known as "contractual," "voluntary," or  
          "nonjudicial" arbitrations; governed under the California  








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          Arbitration Act, Code of Civil Procedure Section 1280 et seq.).   
            

          On March 1, 2016, the Senate Judiciary Committee held an  
          informational hearing on the topic of private or contractual  
          arbitration agreements, entitled The Federal Arbitration Act,  
          the U.S. Supreme Court, and the Impact of Mandatory Arbitration  
          on California Consumers and Employees.  In that hearing, many  
          issues facing consumers and employees who are subject to  
          arbitration clauses contained in standardized,  
          take-it-or-leave-it, or "adhesive," contracts were brought to  
          light.  That hearing also brought to light the various  
          difficulties facing the State in addressing some of the  
          underlying, fundamental harms faced by consumers and employees  
          as a result of federal preemption and U.S. Supreme Court  
          precedent interpreting the Federal Arbitration Act.  A package  
          of arbitration bills, of which this bill is one, arose out of  
          the hearing, seeking to address various fairness issues  
          surrounding the rules that govern the conduct and operation of  
          arbitrators and arbitrations in this state.   
          
          Of particular relevance to this bill are issues of fairness  
          surrounding choice of law and choice of forum clauses as a  
          condition of non-negotiable consumer and employment contracts,  
          and, specifically, the ability of a seller or employer to  
          require a California consumer or employee to litigate or  
          arbitrate their claims arising out of California in another  
          state, or pursuant to another state's laws. Generally speaking,  
          California law does not currently prohibit companies or  
          employers from requiring consumers or employees to agree to a  
          non-California forum or to apply non-California law to resolve  
          their disputes. As a matter of case law, such clauses are valid  
          so long as the California consumer or employee "will not find  
          their substantial legal rights significantly impaired by their  
          enforcement."  (America Online, Inc. v. The Superior Court of  
          Alameda County (2001) 90 Cal.App.4th 1, 21, 23.) 

          This bill seeks to ensure that California consumers and  
          employees cannot be forced to litigate or arbitrate their  
          California-based claims outside of California, under  
          out-of-state laws, as a condition of a consumer or employment  
          contract.  Specifically, this bill would provide that, in any  
          consumer or employment contract entered into on or after January  
          1, 2017, a provision that purports to designate the venue in  
          which a controversy arising from the contract may be litigated  







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          or arbitrated, or the choice of law to be applied, is voidable  
          by the consumer or employee, if it: (1) deprives the consumer or  
          employee of the protection of California law with respect to a  
          controversy arising in California; or (2) requires the consumer  
          or employee to litigate outside of California a claim arising in  
          California.  This bill would prohibit a seller or employer from  
          requiring a consumer or employee to agree to such a provision as  
          a condition of a consumer or employment contract, and would  
          provide that such a provision is inoperative and California law  
          must be applied in its place.
                                           
                               CHANGES TO EXISTING LAW
           
           Existing law  permits California courts to exercise jurisdiction  
          on any basis not inconsistent with the state or federal  
          Constitutions.  (Code Civ. Proc. Sec. 410.10.)  A court is also  
          authorized to stay or dismiss most actions in which it finds  
          "that in the interest of substantial justice" the action should  
          be heard in a forum outside of California. (Code Civ. Proc. Sec.  
          410.30(a).)
           
          Existing law  codifies the established doctrine that the courts  
          will not enforce an unconscionable contract.  Specifically,  
          existing law provides that, if a court finds as a matter of law  
          that a contract or any clause of the contract was unconscionable  
          at the time it was made, the court may refuse to enforce the  
          contract or the unconscionable clause.  (Civ. Code Sec. 1670.5.)

           Existing case law  , in which the California Supreme Court struck  
          down a mandatory arbitration agreement in an employment contract  
          as an unconscionable contract of adhesion, holds that  
          "unconscionability has both a 'procedural' and a 'substantive'   
          element, the former focusing on 'oppression' or 'surprise' due  
          to unequal  bargaining power, the latter on 'overly harsh' or  
          'one-sided' results."  (Armendariz et al. v. Foundation Health  
          Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114.)

           Existing case law  , in which the appellate court refused to  
          enforce a forum selection clause in a consumer contract, holds  
          that forum selection clauses will be enforced only "so long as  
          California consumers will not find their substantial legal  
          rights significantly impaired by their enforcement." "California  
          courts will refuse to defer to the selected forum if to do so  
          would substantially diminish the rights of California residents  
          in a way that violates our state's public policy."  (America  







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          Online, Inc. v. The Superior Court of Alameda County (2001) 90  
          Cal.App.4th 1, 21, 23.)

           Existing law  provides, with respect to a contract between a  
          contractor and a subcontractor for the construction of a public  
          or private work of improvement in this state, that a provision  
          shall be void and unenforceable if it purports to require any  
          dispute between the parties to be litigated, arbitrated, or  
          otherwise determined outside this state or purports to preclude  
          a party from commencing such a proceeding or obtaining a  
          judgment or other resolution in this state or the courts of this  
          state.  (Code Civ. Proc. Sec. 410.42.)

           Existing law  provides for a maxim of jurisprudence that "[a]ny  
          one may waive the advantage of a law intended solely for his  
          benefit.  But a law established for a public reason cannot be  
          contravened by a private agreement."  (Civ. Code Sec. 3513.)

           Existing law  provides the waiver of certain substantive rights  
          as against public policy, such as a person's rights under the  
          Consumer Legal Remedies Act (Civ. Code Sec. 1751) and a person's  
          rights under state securities laws (Corp. Code Sec. 25701).   
          Thus, those rights are non-waivable.

           Existing law  makes certain other employment contract provisions,  
          such as non-compete clauses, void or voidable as against public  
          policy. (See e.g., Civ. Code Secs. 1670.8, 1751, 1799.207, Bus.  
          & Prof. Sec. 16600; Edwards v. Arthur Andersen LLP (2008) 44  
          Cal.4th 937, Fillpoint, LLC v. Maas, 208 Cal.App.4th 1170,  
          1182-1183.)  

           Existing law  , the Consumer Contract Awareness Act, defines a  
          consumer contract as a writing prepared by a seller to be signed  
          by a consumer which provides for the sale or lease of goods or  
          services that are purchased or leased primarily for personal,  
          family, or household purposes.   (Civ. Code Sec. 1799.201.)
           This bill  would add to the Consumer Contract Awareness Act that,  
          notwithstanding any other law, a provision in a consumer  
          contract that purports to designate the venue in which a  
          controversy arising from the consumer contract may be litigated,  
          or the choice of law to be applied, is voidable by the consumer  
          if the provision would either:

           deprive the consumer of the protection of California law with  
            respect to a controversy arising in California; or 







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           require the consumer to litigate outside of California a claim  
            arising in California.

           This bill  would add to the Labor Code that, notwithstanding any  
          other law, a provision in an employment contract that purports  
          to designate the venue in which a controversy arising from the  
          employment contract may be litigated, or the choice of law to be  
          applied, is voidable by the employee if the provision would  
          either:

           deprive the employee of the protection of California law with  
            respect to a controversy arising in California; or
           require the employee to litigate outside of California a claim  
            arising in California.

           This bill  would provide that, for these purposes, litigation  
          includes arbitration.

           This bill  would prohibit a seller or employer from requiring a  
          person to agree to a provision as described above as a condition  
          of entering into a contract regulated by the Consumer Contract  
          Awareness Act or an employment contract.  If such a provision is  
          required, the provision would be inoperative and California law  
          would apply in its place.

           This bill  would provide that, in addition to injunctive relief  
          and any other remedies available, a court may award a plaintiff  
          who is enforcing his or her rights under this section reasonable  
          attorney's fees.  

           This bill  would provide that these provisions shall apply to a  
          contract entered into, modified, or extended on or after January  
          1, 2017.

                                        COMMENT
           
          1.   Stated need for the bill  

          According to the author:

            Arbitration goes wrong when it is forced - when a company  
            requires a consumer to submit any dispute that may arise to  
            arbitration as a nonnegotiable condition of employment or  
            buying a product or service. Forced arbitration is a private  
            out-of-court process that businesses and employers usually  







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            require as a condition of receiving a good, service, or a job.  
            The California consumer is required to waive her right to sue,  
            to participate in a class action lawsuit, or to appeal. Forced  
            arbitration is mandatory, the arbitrator's decision is  
            binding, and the results are not public.
            Unfortunately, forced arbitration clauses are everywhere:   
            They're in the fine print of car loans and leases, credit  
            cards, checking accounts, insurance, investing accounts,  
            student loans, and even certain employment and nursing home  
            agreements. (In the credit card market alone, arbitration  
            clauses bind as many as 80 million consumers.) 

            SB 1241 focuses in on two of the worst clauses that can appear  
            in a consumer [or employment] contract: (1) Choice of forum  
            clauses that require a consumer [or employee] to go to an  
            arbitration or to a court in an entirely different state, and;  

            (2) Choice of law clauses that intentionally pick what state's  
            law governs the case - thus deciding what the rules are - to  
            disadvantage the consumer [or employee].  

            Specifically, SB 1241 states that consumer and employment  
            contracts that require a party to litigate or arbitrate in a  
            different state or require that a different state's law govern  
            the dispute are voidable by the consumer.  

          In support of the bill, the California Employment Lawyers  
          Association writes:

            Increasingly, employers, particularly out-of-state employers,  
            are imposing choice-of-law and forum selection provisions on  
            their California workers in order to: evade California law,  
            make it more difficult for employees to pursue legitimate  
            claims, and ensure that any disputes are decided in a forum  
            that is most favorable to the employer.    [ . . . ]            
                                                                    

            Needless to say, most workers lack the resources to travel  
            across the country-let alone around the world-to pursue an  
            employment claim in another state or country. The problem is  
            particularly acute for lower income workers and disabled  
            workers. Those workers that do have the resources and ability  
            to travel might well find that the protection that they had  
            under California law does not exist, or is not as  
            comprehensive, in the jurisdiction that will be deciding their  







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            dispute. [ . . . ] 

            In [a] recent case, a California employee was fired after  
            speaking to other employees about alleged violations of  
            California's Labor Code and because she refused to sign a new  
            arbitration agreement. Rather than taking her case to court in  
            California, her employer has forced the claim to be arbitrated  
            in New York because of a choice-of-venue provision buried in  
            her new-hire paperwork. 

          In support, the Consumer Attorneys of California adds that:

            Without any legislation to guide them, California courts have  
            freely enforced these choice of law and choice of forum  
            provisions, sending California workers to Florida, Illinois,  
            New York, Minnesota, and even out of the country, to resolve  
            their claims and other employment disputes.   
            People and small businesses should not be forced to travel  
            outside of California to have their claims heard.  Likewise,  
            it is unconscionable to have to waive your rights to have  
            California's laws apply to your claims.

          2.   California's interest in consumer and employment contracts  
          in California  

          This bill would remove the ability of a seller or employer to  
          require a consumer or employee to sign a choice of forum or the  
          choice of law agreement designating a non-California venue, or  
          non-California law to be applied, if it would: (1) deprive the  
          consumer of the protection of California law with respect to a  
          controversy that arose in California; or (2) require the  
          consumer to litigate or arbitrate outside of California if the  
          claim arose in California. Any such provision would be voidable  
          by the consumer or employee and rendered inoperative, thus  
          requiring California law to be applied.  Of particular concern  
          to the proponents of this bill appears to be the use and impact  
          of such choice of law and choice of forum clauses alongside  
          provisions mandating arbitration of all disputes in  
          standardized, contracts of adhesion, or largely non-negotiable  
          contracts where the parties have unequal bargaining power.  
           
          In support, the Consumer Federation of California writes that  
          "[t]he use of mandatory arbitration clauses in consumer  
          contracts has skyrocketed over the last few years. These clauses  
          are often in adhesion contracts, conditional to receiving a  







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          good, service, or a job, and deny consumers their day in court.  
          Consumers are required to waive their right to sue, to  
          participate in a class action lawsuit, or to appeal. Forced  
          arbitration clauses are particularly harmful when they limit the  
          choice of forum, requiring a consumer to go to an arbitration or  
          to a court in a different state, and when they determine what  
          state's law governs the arbitration. The choice of law is made  
          intentionally by selecting state law advantageous to the company  
          and detrimental to the consumer."

          The author asserts that California consumers and employees  
          should never be forced to travel to a different state to resolve  
          their disputes, or have the laws of a different state govern  
          their dispute by way of choice of law and choice of forum  
          clauses.  As stated by the author, "if you're selling goods or  
          services in California or employing Californians, you should not  
          be able to force all dispute resolution to take place in Florida  
          or Delaware.  These clauses have a chilling effect for several  
          reasons. Just the cost of travel alone prevents California  
          consumers who have been harmed by an illegal practice from  
          seeking compensation. This is especially true when the amount in  
          controversy is not very large."  Furthermore, the author argues,  
          "[t]he only reason an entity doing business in California  
          through selling a product or service in California or employing  
          a Californian would want the laws of another state to apply is  
          to disadvantage the consumer because that state's consumer  
          protection laws are weaker."  

          California has a history of protecting against potentially  
          one-sided contractual arrangements. The California Supreme Court  
          struck down a mandatory arbitration agreement in an employment  
          contract as an unconscionable contract of adhesion, holding that  
          "unconscionability has both a 'procedural' and a 'substantive'  
          element, the former focusing on 'oppression' or 'surprise' due  
          to unequal bargaining power, the latter on 'overly harsh' or  
          'one-sided' results."  (Armendariz et al. v. Foundation Health  
          Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114.)  

          Further, California also has a demonstrated and legitimate  
          interest in protecting its residents from unconscionable  
          contracts that overly burden the resident by forcing him or her  
          to litigate or arbitrate a claim arising in California in a  
          different state, while applying out-of-state law.  In America  
          Online, Inc. v. Superior Court (2001) 90 Cal.App.4th 1, a  
          California Court of Appeal addressed forum selection clauses and  







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          held that "[o]ur law favors forum selection agreements only so  
          long as they are procured freely and voluntarily, with the place  
          chosen having some logical nexus to one of the parties or the  
          dispute, and so long as California consumers will not find their  
          substantial legal rights significantly impaired by their  
          enforcement."  (Id. at 21.)  Accordingly, having sufficiently  
          drawn a nexus between California's desire to protect its  
          citizens and the nature of certain contracts between the  
          parties, this Legislature has at various times approved laws  
          restricting choice of law and forum selection between certain  
          contracting parties in order to protect its residents. (See  
          Comment 3 for more on such existing law.)  

          Surely, this state has a substantial nexus to claims or  
          controversies arising in California between an employer and  
          California employee, or a seller and California consumer, as  
          well as a substantial interest in ensuring California laws  
          govern such claims. Moreover, given that employees may not have  
          the freedom to select their employer with particularity, let  
          alone negotiate the terms of their employment contracts,  
          employers largely have the upper hand when requiring an employee  
          to agree to choice of law, choice of venue, and choice of forum  
          provisions.  A similar imbalance of power lies between a  
          consumer and the seller of the goods or services that the  
          consumer needs.  As such, choice of law and choice of forum  
          agreements contained in consumer and employment contracts, to a  
          great degree, are arguably not procured "freely and  
          voluntarily."  Further, given that the employment dispute  
          between the employer and the California employee arises in  
          California, where the employee performs his or her services,  
          applying California law in these disputes is certainly logical.   
          And where a company sells goods in California to California  
          consumers, using California law in these consumer law disputes  
          is logical as well. Thus, as a matter of public policy, this  
          bill appears to level the playing field between companies and  
          consumers, and employers and employees in many otherwise  
          non-negotiable contracts in a reasonable fashion.  Furthermore,  
          as noted by the California Employment Lawyers Association, in  
          support of the bill, this bill also levels the playing field  
          between California and non-California businesses and employers: 

            The current situation clearly benefits out-of-state employers  
            at the expense of California employers. Employers who remain  
            subject to the rigorous requirements of California labor and  
            employment law are at a distinct competitive disadvantage when  







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            an out-of-state employer uses a choice-of-law provision to  
            exempt itself from California's laws governing employment  
            relationships and adopt another State's less protective  
            regime. Correcting this problem therefore benefits California  
            employers as well as employees and contributes to fair  
            competition in California.

          3.    Freedom of parties to contract  

          Several bills brought in this Legislature over the last 15 years  
          have sought to limit or ban choice of law or choice of forum  
          clauses in various contracts, particularly where an agreement  
          would require the employee to litigate in another state or  
          deprive the employee of substantive rights available in  
          California.   Similar to those prior efforts, this bill seeks to  
          prohibit choice of law and choice of forum clauses in consumer  
          and employment agreements if they would require the consumer or  
          employee to litigate or arbitrate in another state or deprive  
          the employee of substantive rights available in California.  

          Such protective statutes have been enacted in other areas, such  
          as in construction cases, and in regulating private child  
          support collections.  Specifically, existing law provides with  
          respect to a contract between a contractor and a subcontractor  
          for the construction of a public work of improvement in  
          California that a provision shall be void and unenforceable if  
                                       it purports to require any dispute between the parties to be  
          litigated, arbitrated, or otherwise determined outside this  
          state, or purports to preclude a party from commencing such a  
          proceeding or obtaining a judgment or other resolution in this  
          state or the courts of this state.  (Code Civ. Proc. Sec.  
          410.42.)  

          In addition, private child support collectors are forbidden to  
          require, as a condition of providing services to an obligee,  
          that the obligee waive any right or procedure provided for in  
          any state law regarding the right to file and pursue a civil  
          action, or that the obligee agree to resolve disputes in a  
          jurisdiction outside of California or to the application of laws  
          other than those of California.  Any waiver, including, but not  
          limited to an agreement to arbitrate or regarding choice of  
          forum or choice of law, that is required as a condition of doing  
          business with the private child support collector is presumed  
          involuntary, unconscionable, against public policy, and  
          unenforceable. (Fam. Code Sec. 5614(b)(7).)







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          Under both the federal and state constitutions, a federal or  
          state law may not unduly impair existing contractual  
          relationships.  (U.S. Const. art. I, Sec. 10, Cal. Const. art.  
          I, Sec. 9.)  In Energy Reserves Group v. Kansas Power & Light  
          (1983) 459 U.S. 400, the U.S. Supreme Court laid out a  
          three-part test for whether a state law violates the Contract  
          Clause.  First, the state regulation must substantially impair a  
          contractual relationship. Second, the state "must have a  
          significant and legitimate purpose behind the regulation, such  
          as the remedying of a broad and general social or economic  
          problem." (Id. at 411-13.)  Third, the law must be reasonable  
          and appropriate for its intended purpose (this test is similar  
          to the rational basis review).  Thus, a state regulation that  
          imposes a substantial impairment on a contractual relationship  
          will be upheld if a significant or legitimate public interest  
          justifies the regulation and if the law adjusts the parties'  
          rights in a reasonable and appropriate way.  (Id. at 411-413;  
          Associated Builders & Contractors v. Baca (1991) 769 F. Supp.  
          1537, 1551 (N.D. Cal.).)

          A ban on choice of law and choice of forum clauses in employment  
          agreements could arguably pass constitutional muster under the  
          above test only if the ban is imposed as a condition of  
          employment and because it would be aimed at a broad, generalized  
          social problem potentially affecting every California employee,  
          not a private interest matter. (See Allied Structural Steel Co.  
          v. Spannaus (1978) 438 U.S. 234, 261.) 

          Notably, a Louisiana law that imposes an outright ban on such  
          clauses was upheld as constitutional by the Louisiana Supreme  
          Court in Sawicki v. K/S Stavanager Prince and  
          Assurane-Foreninger Skuld (La.2001) 802 So.2d 598.  The  
          Louisiana law prohibits choice of forum clauses and choice of  
          law clauses in employment contracts, except where "expressly,  
          knowingly, and voluntarily agreed to and ratified by the  
          employee after the 
          occurrence of the incident which is the subject of the civil or  
          administrative action." (La. Rev. Stat. 23:921(a)(2).)  The  
          Louisiana Supreme Court held that the statute did not violate  
          the Contract Clause because it did not impair the contractual  
          relationship between the employer and the employee and that the  
          statute reasonably accomplished a legitimate public purpose.   
          Likewise, this bill would ban such clauses under the same  
          conditions to protect the rights of California workers.  In the  







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          context of consumer agreements, which are also covered by this  
          bill, choice of law and forum selection clauses that take  
          Californian consumers out of state to litigate their claims  
          arguably undermines a host of state consumer protection laws  
          which not only seek to protect the public against various  
          business practices, but that contain anti-waiver provisions that  
          seek to prohibit a consumer from being forced to waive their  
          rights under those laws in any contract.  Being forced to  
          litigate their claims outside of California or by out-of-state  
          laws would presumably undermine those very anti-waiver  
          provisions.   

          4.   Veto of similar bills  

          The prohibitions of this bill limiting choice of law or choice  
          of forum provisions in employment contracts are similar to three  
          prior bills.  First, this bill is similar to the enrolled  
          version of AB 267 (Swanson, 2011).  In vetoing AB 267, Governor  
          Brown stated:

            This measure would prohibit employment contracts that require  
            California employees to agree to the use of legal forums and  
            laws of other states. 

            Current law prohibits California employees from being  
            subjected to laws or forums that substantially diminish their  
            rights under our laws and I have not seen convincing evidence  
            that these protections are insufficient to protect employees  
            in California.

            Finally, I would note that imposing this burden could deter  
            out of state companies from hiring Californians - something we  
            can ill afford at this time of high unemployment.

          This bill is similar to the enrolled version of AB 335 (Fuentes,  
          2009).  In vetoing AB 335, Governor Schwarzenegger stated:

            This bill is similar to AB 1043 (Swanson, 2007), which I also  
            vetoed.  Like AB 1043, this bill would discourage out-of-state  
            and multinational employers from hiring California-based  
            workers and potentially contribute toward the growing problem  
            of unemployment.  Additionally, the bill is unnecessary  
            because courts are already well equipped to determine when a  
            choice of law or choice of forum provision in a private  
            contract should be enforced in consideration of all applicable  







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            circumstances.

          Lastly, this bill is substantially similar to the enrolled  
          version of AB 1043 (Swanson, 2007).  In vetoing AB 1043,  
          Governor Schwarzenegger stated:

            This bill appears to create a solution in search of a problem.  
             California law currently ensures that employees can not [sic]  
            be subjected to unconscionable contract provisions that would  
            force them to forego the protections of California law or  
            litigate their claims in an inappropriate out-of-state forum.   
            Moreover, this bill creates unnecessary and unhelpful  
            uncertainties for the employers and employees concerning  
            issues of federal preemption.  Lastly, I strongly support the  
            right of parties to freely contract for the terms of their  
            employment relationship.  This bill fundamentally conflicts  
            with that policy.

          In contrast to those bills, this bill would make the choice of  
          law and choice of forum provisions voidable by the employee, and  
          not automatically void and unenforceable. 

          5.   Opposition concerns  

          In opposition, the Civil Justice Association of California  
          (CJAC) writes that similar prohibitions existed in prior bills  
          that were vetoed by Governors Brown and Schwarzenegger.  (See  
          Comment 4, above.)  "In their veto messages both governors noted  
          that California law already prohibits Californians from being  
          subject to laws or forums that substantially diminish their  
          rights under California law. Governor Brown noted that AB 267  
          could deter out-of-state employers from hiring Californians."   
          CJAC argues further that this bill is unnecessary:  

            California consumers and employees are already protected from  
            unconscionable contract provisions, including forum selection  
            and choice of law. In America Online, Inc. v. Superior Court,  
            90 Cal.App.4th 1 (2001), a California appeals court refused to  
            enforce a forum selection clause in a class-action consumer  
            contract dispute, holding that California class members'  
            rights would be substantially diminished if they were required  
            to litigate their claims in Virginia.
            In Verdugo v. Alliantgroup, L.P., 237 Cal.App.4th 141 (2015),  
            a California appeals court refused to enforce a forum  
            designation clause in an employment dispute, holding that the  







          SB 1241 (Wieckowski)
          Page 14 of ? 

            employer could not demonstrate that enforcement would not  
            diminish employee's rights if litigated in Texas courts. 

            Judges evaluating these clauses for enforceability should be  
            allowed to balance factors in individual cases to determine if  
            choice of law or forum clauses are valid. Prohibiting these  
            clauses by statute is unnecessary as the law already protects  
            Californians from unconscionable contracts.

          In response, the author writes that this bill is clearly  
          necessary, as only a few weeks ago, a California employee was  
          forced to arbitrate her wrongful termination claim in New York  
          because of a choice-of-venue provision buried in her new-hire  
          paperwork. In addition to that recent case, the author writes  
          that: 

            [N]umerous courts have enforced choice-of-law and forum  
            selection provisions in employment contracts.  
                 Olinick v. BMG Entm't, 138 Cal. App. 4th 1286 (Cal. Ct.  
               App. 2006) (requiring California employee to litigate  
               discrimination claims in New York);
                 Hopkinson v. Lotus Dev. Corp, 1995 U.S. Dist. Lexis 8804  
               (N.D. Cal. June 21, 1995) (requiring California employees  
               to litigate age discrimination and other claims in  
               Massachusetts);
                 Flake v. Medline Indus., Inc., 882 F. Supp. 947 (E.D.  
               Cal. 1995) (requiring California employee to litigate age  
               discrimination claims in Illinois);
                 Sarmiento v. BMG Entm't, 326 F. Supp. 2d 1108 (C.D. Cal.  
               2003) (requiring California employee to litigate breach of  
               contract and wage claims in New York).
                 Spradlin v. Lear Siegler Management Services (9th Cir.  
               1991) 926 F.2d 865, (requiring a California citizen to  
               litigate his age discrimination claims in Saudi Arabia)

            These cases hold that the burden is on the employee to prove  
            that the provision is unconscionable or unreasonable. As a  
            practical matter, this means that the choice-of- law and forum  
            selection provisions are usually enforced. 


           Support  :  California Employment Lawyers Association; Consumer  
          Attorneys of California; Consumer Federation

           Opposition  :  Civil Justice Association of California







          SB 1241 (Wieckowski)
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                                        HISTORY
           
           Source  :  Author


           Related Pending Legislation  :

          SB 1078 (Jackson, 2016) would add specified rules relating to  
          marketing activities of private arbitration companies and  
          relating to the ability of arbitrators to enter into future  
          arrangements with one party to a pending arbitration.  This bill  
          would also allow parties to recoup fees where an award has been  
          vacated or the arbitrator has been removed during an arbitration  
          for violations of ethical rules or disclosure requirements. 

          SB 1065 (Monning, 2016) would eliminate the existing law right  
          of appeal when a motion to compel arbitration has been denied,  
          if the case involves a claim under the Elder Abuse and Dependent  
          Adult Civil Protection Act and the senior has received a trial  
          preference under existing law due to age and health.

          SB 1007 (Wieckowski, 2016) would establish the right of a party  
          to an arbitration to have a certified shorthand reporter  
          transcribe any deposition, proceeding, or hearing, at the  
          expense of the party requesting the transcript, except as  
          specified, and would provide that the transcript shall be the  
          official record of the deposition, proceeding, or hearing.  The  
          refusal of this right would be a ground for vacatur of the  
          arbitration award. 

           Prior Legislation  :

          AB 267 (Swanson, 2011) See Comment 4. 

          AB 335 (Fuentes, 2009) See Comment 4. 

          AB 1403 (Swanson, 2007) See Comment 4.

          AB 1740 (Assembly Judiciary Committee, 2005) would have provided  
          that an agreement entered into or renewed on or after January 1,  
          2006, establishing a forum outside of this state for the hearing  
          of specified matters relating to a California consumer would be  
          contrary to public policy and void and unenforceable.  This bill  
          died without a hearing in our Committee.







          SB 1241 (Wieckowski)
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          AB 2331 (Wayne, Ch. 815, Stats. 2002) added anti-waiver  
          provisions to various consumer protection laws.

          AB 256 (Wayne, 2001) would have required that any action  
          commenced against a resident who is a consumer in this state  
          arising out of a consumer contract or other transaction for the  
          purchase, lease, license, or bailment of goods or services  
          primarily for personal, family, or household purposes, be filed  
          in the county in which the consumer signed the contract, the  
          county in which the consumer resided at the time the transaction  
          was entered into, or the county in which the consumer resides at  
          the time action is filed. That bill was vetoed. 

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