Substantive Unconscionability California

Substantive unconscionability is concerned with contractual terms that produce unfair or one-sided results. "In assessing substantive unconscionability, the paramount consideration is mutuality." (Abramson v. Juniper Networks, Inc. (2004) 115 Cal.App.4th 638, 664.) For example, an arbitration agreement is substantively unconscionable where it compels arbitration of claims employees are most likely to bring against the employer, but exempts from arbitration claims the employer is most likely to bring against its employees. (Mercuro v. Superior Court (2002) 96 Cal.App.4th 167, 175-176.) "Substantive unconscionability addresses the fairness of the term in dispute. Substantive unconscionability 'traditionally involves contract terms that are so one-sided as to "shock the conscience," or that impose harsh or oppressive terms.' " (Szetela v. Discover Bank (2002) 97 Cal.App.4th 1094 at p. 1100.) "The substantive element of the unconscionability analysis focuses on overly harsh or one-sided results." (Gatton v. T-Mobile USA, Inc. (2007) 152 Cal.App.4th 571 at p. 586.) "No precise definition of substantive unconscionability can be proffered. Cases have talked in terms of 'overly harsh' or 'one-sided' results. One commentator has pointed out, however, that '... unconscionability turns not only on a "one-sided" result, but also on an absence of "justification" for it ...' , which is only to say that substantive unconscionability must be evaluated as of the time the contract was made. The most detailed and specific commentaries observe that a contract is largely an allocation of risks between the parties, and therefore that a contractual term is substantively suspect if it reallocates the risks of the bargain in an objectively unreasonable or unexpected manner." (A & M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473 at p. 487.) "A provision is substantively unconscionable if it 'involves contract terms that are so one-sided as to "shock the conscience," or that impose harsh or oppressive terms.' The phrases 'harsh,' 'oppressive,' and 'shock the conscience' are not synonymous with 'unreasonable.' Basing an unconscionability determination on the reasonableness of a contract provision would inject an inappropriate level of judicial subjectivity into the analysis. 'With a concept as nebulous as "unconscionability" it is important that courts not be thrust in the paternalistic role of intervening to change contractual terms that the parties have agreed to merely because the court believes the terms are unreasonable. The terms must shock the conscience.' " (Morris v. Redwood Empire Bancorp (2005) 128 Cal.App.4th 1305 at pp. 1322-1323.)