Pichly v. Nortech Waste (2001)

[Modification of Opinion (87 Cal.App.4th 599) on denial of petition for rehearing.]

ALICE PICHLY et al., Plaintiffs and Respondents, v. NORTECH WASTE LLC et al., Defendants and Appellants.

THE COURT. fn. † -

It is ordered that the opinion filed herein on March 2, 2001, be modified as follows:

1. Insert the following at the end of the citation string, after the citation to Armendariz, in footnote 3 on page 6 [87 Cal. App. 4th 604, advance report, fn. 3, line 2]: Circuit City Stores, Inc. v. Adams (Mar. 21, 2001, No. 99-1379) __ U.S. __ [2001 DJDAR 2849] [holding most employment claims may be litigated under the Federal Arbitration Act]

2. Strike the first full paragraph on page 20 [87 Cal. App. 4th 612, advance report, 2d full par.] of the written opinion (beginning "Plaintiffs argue that the agreement's attorney fees . . . .") and replace it with the following text:

Plaintiffs argue that the agreement's attorney fees provision, awarding reasonable attorney fees to the prevailing party, unconscionably alters the attorney fees provisions under the FEHA because "an employer is not entitled to attorneys' fees or costs unless it proves that the underlying claim had no merit." We reject this argument for two reasons. First, we observe that not all claims to be arbitrated under the agreement are FEHA claims. As to traditional contractual claims, the attorney fees provision of the agreement is unremarkable, awarding fees to the prevailing party. And second, as noted in Armendariz, to the extent the agreement may be inconsistent with the FEHA, the FEHA prevails. (See Armendariz, supra, 24 Cal.4th at p. 103.) The attorney fees provision of the agreement to arbitrate is reasonable and unremarkable on its face, and, to the extent it may be inconsistent with the [88 Cal. App. 4th 238d] FEHA, it is severable and can be stricken. (Id. at p. 124; see also Civ. Code, § 1670.5, subd. (a).) Accordingly, the attorney fees provision in the arbitration agreement does not render the agreement unenforceable.

This modification does not affect the judgment.

The petition for rehearing is denied.

FN †. Before Davis, Acting P.J., Nicholson, J., and Kolkey, J.