An arbitration agreement is not substantively unconscionable merely because it states that the arbitrator will decide arbitrability issues. An arbitration clause that provided the parties would submit to arbitration any dispute about “the interpretation, validity, or enforceability of this Agreement, including the determination of the scope or applicability of [the arbitration clause]” and which chose arbitration under JAMS’s rules, clearly and unmistakably delegated arbitrability questions to the arbitrator. That delegation was not substantively unconscionable. Plaintiff didn’t show he couldn’t afford to arbitrate arbitrability questions since JAMS’s consumer rules limited a consumer plaintiff’s costs to $250. The arbitrator would decide if the arbitration clause was otherwise unconscionable.
California Court of Appeal, Fifth District (Gomes, J.); July 26, 2017; 2017 WL 3185218