delegation clause in California

2026(Malone v. Superior Court (2014) 226 Cal.App.4th 1551, 1559 (Malone).) Thus, “whether the arbitration agreement as a whole is ultimately held to be unenforceable will have no bearing on the enforcement of the delegation clause itself.” (Ibid.) If a party makes a specific challenge to a delegation clause, “the court must determine whether the delegation clause itself may be enforced (and can only delegate the general issue of enforceability to the arbitrator if it first determines the delegation clause is enforceable).” (Id. at p. 1560, citing Rent-A- Center, West, Inc. v. Jackson (2010) 561 U.

2026(Rent- A-Center, supra, 561 U.S. at 74 .) Because Mather did not demonstrate the delegation clause was unconscionable or invalid, it will be for the arbitrators to consider the enforceability of the agreement as a whole.

2026Under both federal and state law, who decides threshold questions of arbitrability—the arbitrator or the court—“is a matter of party agreement.” (Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233, 243 .) We conduct that inquiry, “at least initially, through the prism of state law.” (Id. at p. 244.) To overcome the default presumption that such questions are for the court to decide, a delegation clause must (1) be “‘clear and unmistakable’” and (2) “‘not be revocable under state contract defenses.’” (Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 892 .) McCoy does not assert any co

2026(Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972 .) However, “ ‘parties can agree to arbitrate “gateway” questions of “arbitrability,” such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy.’ ” (Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 891 (Aanderud).) “ ‘There are two prerequisites for a delegation clause to be effective.

2026(Malone v. Superior Court (2014) 226 Cal.App.4th 1551, 1559 (Malone).) Thus, “whether the arbitration agreement as a whole is ultimately held to be unenforceable will have no bearing on the enforcement of the delegation clause itself.” (Ibid.) If a party makes a specific challenge to a delegation clause, “the court must determine whether the delegation clause itself may be enforced (and can only delegate the general issue of enforceability to the arbitrator if it first determines the delegation clause is enforceable).” (Id. at p. 1560, citing Rent-A- Center, West, Inc. v. Jackson (2010) 561 U.

2026An unsupported claim that a delegation clause creates a conflict of interest for an arbitrator “is nothing more than an expression of a judicial hostility to arbitration, based on the assumption that a paid decision maker cannot be unbiased.” (Malone, supra, 226 Cal.App.4th at p. 1569 .) Further, Mather submitted no evidence showing the delegation clause was outside her reasonable expectations.

2026DISCUSSION A. Delegation Clauses “Parties to an arbitration agreement may agree to delegate to the arbitrator, instead of a court, questions regarding the enforceability of the agreement.” (Tiri v. Lucky Chances, Inc. (2014) 226 Cal.App.4th 231, 241 (Tiri).) A delegation clause is treated as a separate agreement to arbitrate issues of enforceability.

2026First, the language of the clause must be clear and unmistakable. [Citation.] Second, the delegation must not be revocable under state contract defenses such as fraud, duress, or unconscionability.” (Tiri, supra, 226 Cal.App.4th at p. 242 .) In this case, Mather does not dispute that the language of the delegation clause is clear and unmistakable. 4 B.

2025It does not contain a specific delegation clause saying something along the lines of the arbitrator shall have the exclusive authority to resolve any dispute regarding the arbitrability of claims or defenses. [¶] Although there is no delegation language in the Arbitration Agreement, Aten argues that the incorporation of the JAMS rules into . . . it provides the required ‘clear and unmistakable evidence.’ On facts similar to this case, the court in Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771 , held that the provider rules did not show the required ‘clear and unmistakable intent.’ The

2023(See Tiri v. Lucky Chances, Inc. (2014) 226 Cal.App.4th 231, 237 , 241–250 [requiring plaintiff who signed arbitration agreement that included delegation clause to submit to arbitrator issues concerning the agreement’s conscionability]; Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771 , 781–794 [declining to enforce delegation clause for lack of clear and unmistakable evidence of parties’ intent to submit issue of unconscionability to arbitrator]; Momot v. Mastro (9th Cir. 2011) 652 F.3d 982, 984 , 986–988 [requiring plaintiff who entered into an arbitration agreement to arbitrate issues

2025Rather, the court set forth verbatim the “Claims Covered” provision in section 4.a, which included both the delegation clause in section 4.a.i and the list of covered claims in section 4.a.ii. 8 Gilman v. Dalby (2021) 61 Cal.App.5th 923 , 939 [argument not raised until oral argument was forfeited]; Rancho Pauma Mutual Water Co. v. Yuima Municipal Water Dist. (2015) 239 Cal.App.4th 109, 118 [alluding to argument for first time during hearing in the trial court did not preserve issue for appeal].)2 2 Even if we were to reach the delegation argument, Do & Co has not presented a persuasive argumen

2022“The high court began this analysis by confirming that a delegation clause—nested within the larger arbitration agreement—must be viewed as an independent (‘severable’) contract.” (Nielsen, supra, 22 Cal.App.5th at p. 1108 , citing Rent-A-Center, supra, 561 U.S. at pp. 67-76.) An “argument that the arbitration agreement or the underlying contract is unenforceable is not sufficient to trigger the court’s obligation to resolve contentions regarding the enforceability of a severable delegation clause.” (Nielsen, at p. 1108, citing Rent-A- Center, at pp. 71-76.) Since the employee in Rent-A-Center

2026Under both federal and state law, who decides threshold questions of arbitrability—the arbitrator or the court—“is a matter of party agreement.” (Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233, 243 .) We conduct that inquiry, “at least initially, through the prism of state law.” (Id. at p. 244.) To overcome the default presumption that such questions are for the court to decide, a delegation clause must (1) be “‘clear and unmistakable’” and (2) “‘not be revocable under state contract defenses.’” (Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 892 .) McCoy does not assert any co

2025Defendants also invoke Sandquist, supra, 1 Cal.5th 233 , contending that Sandquist “articulated the framework for analyzing . . . the standards for enforcing a delegation to the arbitrator of threshold issues.” Defendants completely misread Sandquist, which did not involve either incorporation by reference or a delegation clause.

2023(Theresa D., 8 supra, 73 Cal.App.5th at p. 27; see also Benaroya v. Willis (2018) 23 Cal.App.5th 462, 469 [“ ‘The question of whether a nonsignatory is a party to an arbitration agreement is one for the trial court in the first instance’ ”].) Relying on Rent-A-Center West, Inc. v. Jackson (2010) 56 U.S. 63 , 65 (Rent-A-Center), Vernon argues the court was required to enforce the Agreement’s delegation clause once Vernon submitted evidence of the Agreement and “met its burden authenticating it,” regardless of who signed it.

2021(See Benaroya v. Willis (2018) 23 Cal.App.5th 462, 473 [authorizing arbitrator to decide what issues are arbitrable does not “give the arbitrator the power to compel a nonsignatory to the agreement to become a party to the arbitration”].) 7 Again relying on Rent-A-Center, defendants insist that the trial court should have delegated to the arbitrator the question of whether an arbitration agreement exists because plaintiff raised no specific challenge to the delegation clause separate from the arbitration clause as a whole.

2020(Henry Schein, supra, __ U.S. at p. __ [ 139 S.Ct. at p. 531 ], quoting First Options, supra, 514 U.S. at p. 944 ; accord, Rent-A- Center, supra, 561 U.S. at p. 69, fn. 1 ; Howsam, supra, 537 U.S. at p. 83 ; 10 Aanderud, supra, 13 Cal.App.5th at p. 893 .) “The ‘clear and unmistakable’ test reflects a ‘heightened standard of proof’ that reverses the typical presumption in favor of the arbitration of disputes.” (Aanderud, at p. 892.) For a delegation clause to be enforceable, there are “ ‘two prerequisites’ ”: (1) “ ‘the language of the clause must be clear and unmistakable’ ”; and (2) “ ‘the de

2014(First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 944-945 [ 131 L.Ed.2d 985 , 115 S.Ct. 1920 ] (First Options); Ontiveros, supra, 164 Cal.App.4th at p. 503 .) In First Options, the court observed that the question of who should determine such a challenge “is rather arcane,” and “[a] party often might not focus upon that question or upon the significance of having arbitrators decide the scope of their own powers.” (First Options, at p. 945.) Accordingly, the court determined that a party seeking to enforce a delegation clause must show that it was clear and unmistakable, and silenc

2014(Rent-A-Center, supra, at p. 73.) We are mindful that two decisions from this appellate district, Ontiveros and Murphy , declined to enforce delegation clauses in employment arbitration contracts of adhesion on unconscionability grounds even though, like the delegation clause here, the clauses were explicit and clear. ( Ontiveros, supra, 164 Cal.App.4th 494 ; Murphy, supra, 156 Cal.App.4th 138 .) But these holdings have been undermined by the more recent United States Supreme Court decisions in Rent-A-Center and AT&T Mobility LLC v. Concepcion (2011) 563 U.S. _ [ 179 L.Ed.2d 742 , 131 S.Ct. 17

2014(Rent-A-Center, supra, at p. 73.) We are mindful that two decisions from this appellate district, Ontiveros and Murphy , declined to enforce delegation clauses in employment arbitration contracts of adhesion on unconscionability grounds even though, like the delegation clause here, the clauses were explicit and clear. ( Ontiveros, supra, 164 Cal.App.4th 494 ; Murphy, supra, 156 Cal.App.4th 138 .) But these holdings have been undermined by the more recent United States Supreme Court decisions in Rent-A-Center and AT&T Mobility LLC v. Concepcion (2011) 563 U.S. _ [ 179 L.Ed.2d 742 , 131 S.Ct. 17

2014Because the court must consider the validity of the delegation clause before considering the validity of the rest of the arbitration agreement, we disagree with the suggestion in Chin v. Advanced Fresh Concepts Franchise Corp. (2011) 194 Cal.App.4th 704, 711 [ 123 Cal.Rptr.3d 547 ] that an appellate court can avoid deciding whether a delegation clause is unconscionable *242 by ruling that all of the remaining provisions are conscionable.

2014Because the court must consider the validity of the delegation clause before considering the validity of the rest of the arbitration agreement, we disagree with the suggestion in Chin v. Advanced Fresh Concepts Franchise Corp. (2011) 194 Cal.App.4th 704, 711 [ 123 Cal.Rptr.3d 547 ] that an appellate court can avoid deciding whether a delegation clause is unconscionable *242 by ruling that all of the remaining provisions are conscionable.

2023Hyundai also relies on the United States Supreme Court’s decision in Henry Schein, Inc. v. Archer and White Sales, Inc. (2019) 139 S.Ct. 524 (Henry Schein) to support its contention that the delegation clause required 11 an arbitrator, not the court, to decide arbitrability questions.

2023(See Henry Schein, Inc. v. Archer & White Sales, Inc. (2019) 586 U.S. ___ [ 139 S.Ct. 524, 530 , 202 L.Ed.2d 480 ] [the issue of arbitrability is for the court to decide unless the parties’ agreement clearly and unmistakably provides otherwise].) In sum, because there is no clear and unmistakable evidence that Zaghi agreed to arbitrate any disputes with Ralphs when she accepted Instacart’s Terms of Service, the delegation clause included in Instacart’s arbitration provision does not apply here.

2025(Cf. Ronderos v. USF Reddaway, Inc. (9th Cir. 2024) 114 F.4th 1080, 1092 [“To determine whether the [arbitration] agreement involves surprise, it is enough to note that the ambiguity of the cost-splitting provision, coupled with the choice-of-law provision [citing both the FAA and the Indiana Uniform Arbitration Act], makes it difficult (even for a lawyer) to figure out whether Ronderos would have to pay half the arbitration costs or not”]; Pinela v. Neiman Marcus Group, Inc. (2015) 238 Cal.App.4th 227, 243 [a delegation clause in an arbitration agreement, coupled with a choice-of-law provisio

2023Thus, we conclude the arbitration agreement did not ‘clearly and unmistakably’ reserve to the arbitrator the issue of whether the arbitration agreement was enforceable.” (Id. at pp. 893–894.) 10 Likewise, in Pinela v. Neiman Marcus Group, Inc. (2015) 238 Cal.App.4th 227 , 240–241, an arbitration agreement provided “the arbitrator is to decide enforceability questions,” but a severability provision recognized a court may decide the same issue; Division Four of this court found the agreement “point[ed] in two directions” and, as a result, “there [wa]s no clear and unmistakable delegation.” (Acco

2017Code, § 1670.5 ; Armendariz , supra , 24 Cal.4th at p. 114 , 99 Cal.Rptr.2d 745 , 6 P.3d 669 .) The two types of unconscionability need not be present in the same degree, and "the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa." ( Armendariz , at p. 114, 99 Cal.Rptr.2d 745 , 6 P.3d 669 .) The party opposing arbitration has the burden of proving unconscionability. ( Tiri , supra , 226 Cal.App.4th at p. 244, 171 Cal.Rptr.3d 621 .) When determining whether a del

2017Code, § 1670.5 ; Armendariz , supra , 24 Cal.4th at p. 114 , 99 Cal.Rptr.2d 745 , 6 P.3d 669 .) The two types of unconscionability need not be present in the same degree, and "the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa." ( Armendariz , at p. 114, 99 Cal.Rptr.2d 745 , 6 P.3d 669 .) The party opposing arbitration has the burden of proving unconscionability. ( Tiri , supra , 226 Cal.App.4th at p. 244, 171 Cal.Rptr.3d 621 .) When determining whether a del

2022Similarly, in Bruni v. Didion (2008) 160 Cal.App.4th 1272 (Bruni), which considered the application of a delegation clause in an arbitration provision to a claim involving contract formation and the existence of an agreement to arbitrate, the court held that despite the delegation, a court must consider “a claim that the party resisting arbitration never actually agreed to be bound.” (Id. at pp. 1279-1282, 1284.) “ ‘Where . . . a party’s apparent assent to a written contract is negated . . . , there is simply no arbitration agreement to be enforced.’ ” (Ibid., quoting Rosenthal, supra, 14 Cal.

2021Co. (1975) 14 Cal.3d 473 , 480 . . . .) They ‘can agree to arbitrate almost any dispute—even a dispute over whether the underlying dispute is subject to arbitration.’ (Bruni v. Didion (2008) 160 Cal.App.4th 1272 , 1286 . . . .) . . . [¶] There are two prerequisites for a delegation clause to be effective.

2015(Id. at pp. 248-250 [declining to follow Ontiveros v. DHL Express (USA), Inc. (2008) 164 Cal.App.4th 494 [ 79 Cal.Rptr.3d 471 ] (Ontiveros) and Murphy, supra, 156 Cal.App.4th 138 on this point]; see Malone v. Superior Court (2014) 226 Cal.App.4th 1551, 1563, fn. 9 [ 173 Cal.Rptr.3d 241 ] [concluding Ontiveros and Murphy have been undermined by more recent authority].) Citing some of the same cases *246 that we chose not to follow in Tiri , Pinela makes a sweeping argument that the delegation clause in the NMG Arbitration Agreement is substantively unconscionable because it would “frustrate[] t

2014(Rent-A-Center, supra, at p. 73.) We are mindful that two decisions from this appellate district, Ontiveros and Murphy , declined to enforce delegation clauses in employment arbitration contracts of adhesion on unconscionability grounds even though, like the delegation clause here, the clauses were explicit and clear. ( Ontiveros, supra, 164 Cal.App.4th 494 ; Murphy, supra, 156 Cal.App.4th 138 .) But these holdings have been undermined by the more recent United States Supreme Court decisions in Rent-A-Center and AT&T Mobility LLC v. Concepcion (2011) 563 U.S. _ [ 179 L.Ed.2d 742 , 131 S.Ct. 17

2022Similarly, in Bruni v. Didion (2008) 160 Cal.App.4th 1272 (Bruni), which considered the application of a delegation clause in an arbitration provision to a claim involving contract formation and the existence of an agreement to arbitrate, the court held that despite the delegation, a court must consider “a claim that the party resisting arbitration never actually agreed to be bound.” (Id. at pp. 1279-1282, 1284.) “ ‘Where . . . a party’s apparent assent to a written contract is negated . . . , there is simply no arbitration agreement to be enforced.’ ” (Ibid., quoting Rosenthal, supra, 14 Cal.

2022Securities Corp. (1996) 14 Cal.4th 394, 413 (Rosenthal); see Schein, supra, ___U.S. ___ [ 139 S.Ct. 524, 530 ].) “To presume arbitrability without first establishing, independently, consent to arbitration is to place the proverbial cart before the horse.” (Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233, 252 .) Case law has recognized that when claims arise from a contract that does not itself contain an arbitration clause, the threshold question of whether there is an agreement to arbitrate (based, for example, on other contracts between the parties) is 5 properly decided by the court

2026(See Parada v. Superior Court (2009) 176 Cal.App.4th 1554, 1567 [when trial court makes no express findings, we infer the court made every implied finding necessary to support the order compelling arbitration].) Next, we determine whether the trial court erred in making that implied finding.

2023Thus, we conclude the arbitration agreement did not ‘clearly and unmistakably’ reserve to the arbitrator the issue of whether the arbitration agreement was enforceable.” (Id. at pp. 893–894.) 10 Likewise, in Pinela v. Neiman Marcus Group, Inc. (2015) 238 Cal.App.4th 227 , 240–241, an arbitration agreement provided “the arbitrator is to decide enforceability questions,” but a severability provision recognized a court may decide the same issue; Division Four of this court found the agreement “point[ed] in two directions” and, as a result, “there [wa]s no clear and unmistakable delegation.” (Acco

2025Rather, the result must be clear and unmistakable, because the law is solicitous of the parties actually focusing on the issue. . . . [R]eaders should take note of the First Options court’s use of language that indicates the desideratum that parties actually think about the idea of replacing the judge with an arbitrator as far as the threshold issue of arbitrability is concerned.” ( Gilbert, supra, 174 Cal.App.4th at pp. 1191-1192.) A clause in an arbitration agreement providing that the arbitrator will decide issues of arbitrability is sometimes referred to as the delegation clause: “ ‘[T]he

2014(Rent-A-Center, supra, 561 U.S. at p. 69, fn. 1 [party challenging an identically worded delegation clause conceded language was clear]; see Gilbert Street Developers, LLC v. La Quinta Homes, LLC, supra, 174 Cal.App.4th at p. 1192 [“An easy case [establishing delegation] is obviously when there is explicit language in the actual signed document to that effect.”].) We see no reason to disagree with the parties’ tacit understanding that the delegation clause here was clear. 5 *243 The second requirement for a delegation clause to be effective is that it cannot be revocable on state law grounds s

2025(Faculty Guild, supra, 83 Cal.App.5th at pp. 666–667.) The parties’ dispute about the arbitrability of the Guild’s grievances hinges on dueling interpretations of the Supreme Court’s holding in United Teachers that “collective bargaining provisions pursuant to the [Act] that annul, set aside, or replace provisions of the Education Code cannot be enforced.” (United Teachers, supra, 54 Cal.4th at p. 520 .) According to the Guild, this holding means that it is proper for a court to deny arbitration only if the court can “identify provisions of the Education Code that are clearly in conflict with

2025(Faculty Guild, supra, 83 Cal.App.5th at pp. 666–667.) The parties’ dispute about the arbitrability of the Guild’s grievances hinges on dueling interpretations of the Supreme Court’s holding in United Teachers that “collective bargaining provisions pursuant to the [Act] that annul, set aside, or replace provisions of the Education Code cannot be enforced.” (United Teachers, supra, 54 Cal.4th at p. 520.) According to the Guild, this holding means that it is proper for a court to deny arbitration only if the court can “identify provisions of the Education Code that are clearly in conflict with t