During the California Supreme Court's weekly conference on December 16, 2020, the Court granted review in an employment arbitration case, Conyer v. Hula Media Services, LLC. As discussed in our previous blog post, the Court of Appeal found that unconscionable terms in an arbitration agreement in an employee handbook could be severed and the agreement otherwise enforceable. The Court of Appeal therefore reversed the trial court's denial of the defendants' motion to compel arbitration and remanded with instructions to sever the unconscionable terms and grant the motion to compel arbitration.
Following the Court of Appeal's decision in August 2020, the plaintiff filed a petition for review with the California Supreme Court. In a rare move, the Supreme Court not only granted review but also ordered depublication of the Court of Appeal's decision. Under Rule 8.115 of the California Rules of Court, while the Supreme Court's review is pending, a Court of Appeal decision may be cited only for its potentially persuasive value and has no binding or precedential effect. The Supreme Court's order of depublication, however, means the Court of Appeal decision cannot be cited at all, even for its potential persuasiveness. (Rule 8.1125).
Perhaps the Court found depublication appropriate in this case because the Court of Appeal's decision does not even mention the case of Oto, LLC v. Kho, where the Court found procedural unconscionability rendered an arbitration agreement between an employer and employee unenforceable. The Supreme Court's decision in Oto, LLC v. Kho is explained more fully in our previous blog post.
The Supreme Court has ordered both parties to file briefs in this matter. This firm will continue to monitor any further developments.