Martinez v. Suburban Motors CA3

Filed 10/27/26 Martinez v. Suburban Motors CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) OLGA LIDIA MARTINEZ, C102487 Plaintiff and Respondent, (Super. Ct. No. 24CV006094) v. SUBURBAN MOTORS, INC., Defendant and Appellant. Olga Lidia Martinez filed a wage and hour lawsuit against her former employer, Suburban Motors, Inc. (Suburban), and Suburban responded by filing a motion to compel arbitration. The trial court denied the motion, finding the arbitration agreement was unconscionable, and Suburban appeals. While this appeal was pending, a different panel of this court interpreted the same arbitration agreement that is at issue in this case and found it was unconscionable. (See Phan v. Knight Sacramento SU Inc. (2026) 121 Cal.App.5th 641 (Phan).) We agree with the Phan decision and thus affirm the trial court’s order denying the motion to compel. BACKGROUND The Arbitration Agreement Martinez worked for Suburban for approximately four months in 2023, and she signed an “At Will and Arbitration Agreement” as part of the hiring process. The 1 agreement provides that each party agrees to pursue “any claims” against the other “that currently exist or that may arise in the future exclusively through binding arbitration … . Our agreement to submit all claims to binding arbitration includes any claims that either of us may have against any third-party beneficiaries.” “Third-party beneficiaries include the Company’s owners, directors, officers, managers, employees, agents, partners, attorneys, sister-companies, subsidiaries, parent companies, joint-venturers, affiliated persons/entities, independent contractors, and parties affiliated with its employee benefit and health plans.” The agreement further provides, “Our agreement to arbitrate includes any and all claims which arise out of the employment context or any other interaction/relationship we had, have or may have in the future.” The claims subject to arbitration “include, but are not limited to, any claim, dispute, and/or controversy that either party brings against the other (including but not limited to, any claims of discrimination and harassment, whether they be based on the California Fair Employment and Housing Act, the Americans With Disabilities Act, Title VII of the Civil Rights Act of 1964, as amended, claims pursuant to the California Private Attorneys General Act (‘PAGA’) unless prohibited by controlling law, as well as all other applicable state or federal laws or regulations) which would otherwise require or allow resort to any court or other governmental dispute resolution forum between myself and the Company, as well as any third-party beneficiaries of the Company. … These claims also include any claims arising from, related to, or having any relationship or connection whatsoever with my seeking employment with, employment by, or other association with the Company or third-party beneficiaries, whether based on tort, contract, statute, equity or otherwise.” The “sole exceptions to the obligation to arbitrate” all claims are “claims arising under the National Labor Relations Act which are brought before the National Labor Relations Board, claims for medical and disability benefits under the California Workers’ Compensation Act, Employment Development Department claims and, at your option, claims involving Sexual 2 Harassment and/or Sexual Assault Disputes.” The agreement provides Martinez may not bring class or representative claims and the arbitrator may not consider class or representative claims. Finally, the agreement contains a severance clause that provides, “If any term or provision, or portion of this agreement, is declared void or unenforceable, it shall be severed and the remainder of this agreement shall be enforceable.” The Lawsuit and the Motion to Compel Arbitration Several months after she resigned, Martinez filed a putative class action against Suburban alleging various wage and hour law violations. Several months after that, she filed a Labor Code Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.) action requesting civil penalties and related relief on behalf of herself and others based on the same wage and hour violations. The two actions were consolidated in the trial court. Suburban filed a motion to compel arbitration of Martinez’s individual claims, dismiss the class claims, and stay the trial court proceedings. Martinez opposed the motion, arguing the arbitration agreement was unconscionable and unenforceable. 1 The trial court denied the motion, finding the arbitration agreement was “unenforceable in its entirety due to unconscionability.” In particular, it found the agreement had “a moderate degree of procedural unconscionability” because it was an adhesion contract and it gave Suburban the unilateral right to modify its provisions. Relying largely on Cook v. 1 Martinez also argued the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.) did not apply, and the arbitration agreement was not valid because it did not identify Suburban as a party (it only identified “the Company”) and Suburban thus should not be allowed to enforce it. The trial court found the FAA did apply, and Martinez states she “does not contest this finding” on appeal. The trial court also stated it need not reach Martinez’s argument about whether the “Company” referred to Suburban because it found the agreement was unconscionable and thus unenforceable. Martinez does not renew this argument here and we thus do not address it. 3 University of Southern California (2024) 102 Cal.App.5th 312 (Cook), the trial court also found the agreement contained three substantively unconscionable provisions: (1) it broadly and without justification applied to all claims, and not just claims that arose out of Martinez’s employment; (2) it was infinite in duration; and (3) it lacked mutuality because although Martinez was required to arbitrate all claims against third party beneficiaries, those third party beneficiaries were not required to arbitrate claims against her. The trial court expressly found, “this case is analogous to Cook and can be decided on the same grounds.” We will discuss Cook in some detail below. The trial court also found the unconscionable provisions “cannot be severed because of the number of unconscionable terms, because the unconscionable terms permeate the Arbitration Agreement, and because the Court would have to rewrite the Arbitration Agreement as opposed to strike terms to make the agreement enforceable.” The trial court thus denied the motion to compel, and this appeal followed. DISCUSSION 1. Relevant Law and Standard of Review “Federal and California law treat valid arbitration agreements like any other contract and favor their enforcement.” (Ramirez v. Charter Communications, Inc. (2024) 16 Cal.5th 478, 492 (Ramirez).) “A written agreement to submit a controversy to arbitration is valid, enforceable, and irrevocable, ‘save upon such grounds as exist for the revocation of any contract.’ (Code Civ. Proc., § 1281.) Unconscionability provides such grounds.” (Ibid.) “The ‘general principles of unconscionability are well established. A contract is unconscionable if one of the parties lacked a meaningful choice in deciding whether to agree and the contract contains terms that are unreasonably favorable to the other party.’ [Citations.] Unconscionability has both a procedural and a substantive element.” (Ibid.) Procedural unconscionability “is generally established by showing the agreement is a contract of adhesion, i.e., a ‘standardized contract which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party 4 only the opportunity to adhere to the contract or reject it.’ [Citation.] Adhesion contracts are subject to scrutiny because they are ‘not the result of freedom or equality of bargaining.’ [Citation.] However, they remain valid and enforceable unless the resisting party can also show that one or more of the contract’s terms is substantively unconscionable or otherwise invalid.” (Id. at pp. 492-493.) “Substantive unconscionability looks beyond the circumstances of contract formation and considers ‘the fairness of an agreement’s actual terms’ [citation], focusing on whether the contract will create unfair or one-sided results [citation]. Substantively unconscionable contractual clauses ‘reallocate risks in an objectively unreasonable or unexpected manner.’ ” (Id. at p. 493.) “Both procedural and substantive elements must be present to conclude a term is unconscionable, but these required elements need not be present to the same degree. [Citation.] Courts apply a sliding scale analysis under which ‘the more substantively oppressive [a] term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.’ ” (Ibid.) “ ‘On appeal from the denial of a motion to compel arbitration, “we review the arbitration agreement de novo to determine whether it is legally enforceable, applying general principles of California contract law.” ’ [Citation.] Thus, unconscionability is a question of law we review de novo.” (Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 82.) We review the correctness of the trial court’s decision and not the correctness of its reasoning, and we will thus affirm the decision “ ‘if it is supported by any legal theory.’ ” (Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 237.) “We review the court’s decision whether to sever portions of the arbitration agreement for abuse of discretion.” (Carmona, at p. 83.) 2. Applicable Case Law As noted above, the trial court’s findings on unconscionability were based largely on Cook, supra, 102 Cal.App.5th 312. While this case was pending on appeal, a different 5 panel of this court decided Phan, supra, 121 Cal.App.5th 641. 2 Phan involved an arbitration agreement whose relevant terms are identical to those in the agreement at issue in this case. 3 (Phan, at pp. 645-646.) Following Cook, the Phan court found the agreement was unconscionable because (1) the scope of arbitrable claims was overly broad without justification because it applied to all claims and not just claims arising out of employment, and (2) it lacked mutuality because it required the employee to arbitrate claims against both the employer and third party beneficiaries, but it did not require the third party beneficiaries to arbitrate claims against the employee. (Id. at pp. 654-657.) We agree with and follow Phan, and because Phan and the trial court in this case relied heavily on Cook, we discuss both cases in some detail below. A. Cook v. University of Southern California The plaintiff in Cook filed a discrimination complaint against her former employer, the University of Southern California (USC), and USC filed a motion to compel arbitration. (Cook, supra, 102 Cal.App.5th at p. 317.) Cook had signed an arbitration agreement that required the parties to arbitrate “ ‘all claims, whether or not arising out of Employee’s University employment, remuneration or termination, that Employee may have against the University or any of its related entities, including but not limited to faculty practice plans, or its or their officers, trustees, administrators, employees or agents, in their capacity as such or otherwise; and all claims that the University may have against Employee.’ ” (Id. at p. 317, italics added.) The agreement also provided it “ ‘shall survive the termination of Employee’s employment.’ ” (Ibid.) 2 Martinez filed her brief on June 29, 2026, and Phan was certified for publication three days later. Shortly thereafter, Martinez filed a letter notifying us of Phan as “significant new authority,” and Suburban addressed Phan in its appellant’s reply brief. 3 All of the portions of the agreement that were quoted in Phan are identical to the agreement in this case. 6 The trial court denied USC’s motion to compel, finding the arbitration agreement was unconscionable, and the appellate court affirmed. (Id. at p. 316.) As an initial matter, the court noted that neither party challenged the trial court’s finding that the agreement had at least “ ‘some’ ” degree of procedural unconscionability because it was “ ‘adhesive and non-negotiable’ ” and was required by USC as a condition of employment. (Cook, supra, 102 Cal.App.5th at p. 318; see id. at p. 320.) The court then found the agreement was substantively unconscionable for three reasons (and we note these are the same three reasons cited by the trial court in this case). First, the agreement was infinite in scope because its “plain language … requires Cook to arbitrate claims that are unrelated to her employment with USC.” (Cook, supra, 102 Cal.App.5th at p. 321.) For example, if Cook was “ ‘the victim of a botched surgery in a USC hospital in 15 years, her claims could be subject to the arbitration agreement.’ ” (Id. at p. 318.) USC argued that “regardless of the agreement’s express language to the contrary, [it] must be construed to apply only to disputes arising from Cook’s employment at USC because absurd results would otherwise ensue.” (Id. at pp. 321- 322.) The court rejected this argument, explaining, “In other words, USC appears to concede the scope of the agreement—as written—is unconscionably broad and must be construed to mean other than what it plainly states to avoid unreasonable results.” (Id. at p. 322.) The court declined to interpret the agreement as applying only to claims arising out of employment because doing so would ignore its plain language. (Id. at pp. 321- 325.) Second, the agreement was infinite in duration because it expressly stated it “ ‘shall survive the termination of Employee’s employment.’ ” (Cook, supra, 102 Cal.App.5th at p. 325.) The court rejected USC’s argument that the agreement should be construed as terminable at will after a reasonable time. It acknowledged the “general rule” that a contract that “has neither an express nor implied term of duration” will “be deemed terminable at will after a reasonable period of time” (id. at p. 326), but it 7 found the general rule was inapplicable because the agreement specifically provided it “ ‘shall survive the termination of Employee’s employment’ ” and thus contained an “express term of duration.” (Id. at pp. 325, 326.) Third, the agreement lacked mutuality because it required Cook to arbitrate her claims against USC and its “ ‘related entities,’ ” but it did not require the related entities to arbitrate their claims against Cook. (Cook, supra, 102 Cal.App.5th at pp. 326-328.) The court noted this “confers a benefit on USC and its broadly defined ‘related entities’ that is not mutually afforded to Cook,” and USC offered “[n]o explanation … as to why Cook should be required to give up the ability to ever bring claims in court against a USC employee that are unrelated to USC or her employment there.” (Id. at p. 327.) Finally, the court upheld the trial court’s finding that it could not sever the unconscionable provisions from the agreement because the agreement was “ ‘permeated by unconscionability,’ ” “curing the unconscionable provisions would require substantive rewriting of the arbitration agreement to contradict its plain language, and … severance would provide a windfall to USC.” (Cook, supra, 102 Cal.App.5th at pp. 329, 330.) B. Phan v. Knight Sacramento SU Inc. The plaintiff in Phan signed several “identical” arbitration agreements as part of her employment, and, as noted above, the relevant provisions of those agreements are identical to the agreement in this case. (Phan, supra, 121 Cal.App.5th at p. 645.) Like Martinez, the plaintiff in Phan filed wage and hour claims against her employer; like Suburban, her employer moved to compel arbitration; and like the trial court in this case, the trial court in Phan denied the motion, finding the agreements were unconscionable and the unconscionable provisions could not be severed. (Ibid.) The employer appealed, and, relying largely on Cook, the Phan court affirmed. The Phan court first addressed “the threshold issue of whether to follow the decision from Division Four of the Second District Court of Appeal in Cook.” (Phan, supra, 121 Cal.App.5th at pp. 650.) It noted, “Although decisions of our sister courts are 8 not binding on us [citation], ‘ “we ordinarily follow the decisions of other districts without good reason to disagree,” ’ ” and it ultimately found the employer “fails to provide us with a ‘good reason’ to disagree with Cook.” (Id. at pp. 650-651, 653.) The court then addressed unconscionability. The trial court found the agreements had a “ ‘low’ ” level of procedural unconscionability because they were “adhesive” and offered “on a take-it-or-leave-it basis,” and neither party challenged that finding on appeal. (Phan, supra, 121 Cal.App.5th at pp. 648, 653.) The court’s decision thus “focus[ed] on substantive unconscionability.” (Id. at p. 653.) Following Cook, the court found the agreements were substantively unconscionable because the scope of arbitrable claims was overbroad without justification. The parties were required to arbitrate “ ‘any and all claims which arise out of the employment context or any other interaction/relationship we had, have or may have in the future,’ ” and “ ‘any claims arising from, related to, or having any relationship or connection whatsoever with my seeking employment with, employment by, or other association with the Company or third-party beneficiaries, whether based on tort, contract, statute, equity or otherwise.’ ” (Phan, supra, 121 Cal.App.5th at p. 654, second italics added.) The court explained, “We see no material difference between the agreement in Cook and the Agreements here. The agreement in Cook required the plaintiff to arbitrate ‘all claims, whether or not arising out of Employee’s University employment, remuneration or termination, that Employee may have against the University or any of its related entities … .’ (Cook, supra, 102 Cal.App.5th at p. 317.) While the Agreements here do not include this express language, the plain language is so broad that they, like the Cook agreement, also encompass all of Phan’s claims against Knight and its related third parties, whether related to her employment or not. And, like the agreement in Cook, Phan is bound by these terms indefinitely as the Agreements require her to arbitrate all future claims as well. As did the Cook court, we too find such 9 an expansive scope of arbitrable claims to be substantively unconscionable.” (Phan, at p. 654.) The employer argued the broad scope was justified prophylactically because it wanted to ensure the agreements “cover[ed] all claims ‘potentially’ related to the employment relationship” in order “to avoid the potential of failing to be able to arbitrate claims that are excluded from an agreement that is too narrow in its scope.” (Phan, supra, 121 Cal.App.5th at p. 656.) The court rejected this argument, explaining as follows: “While we recognize that Knight has a commercial need to cover any claims by an employee that could relate to an employment relationship, it does not justify the breadth of claims included in the Agreements here. The way the Agreements are worded require Phan to arbitrate any past, present, or future claim she has against Knight and its third party beneficiaries including ‘any and all claims which arise out of the employment context or any other interaction/relationship we had, have or may have in the future.’ The plain language of the Agreements covers much more than claims that are ‘potentially’ related to employment; indeed, the Agreements cover any type of claims related to any interaction or relationship between Phan and Knight and its third parties.” (Ibid.) The court also found the agreements were substantively unconscionable because they lacked mutuality in that they “require Phan to arbitrate all her claims, whether related to her employment or not, against not only Knight, but also against any third party beneficiaries defined in the Agreements as ‘the Company’s owners, directors, officers, managers, employees, agents, partners, attorneys, sister-companies, subsidiaries, parent companies, joint-venturers, affiliated persons/entities, independent contractors, and parties affiliated with its employee benefit and health plans.’ According to Cook, an agreement that requires a contracting party to arbitrate all claims against third parties but does not provide this reciprocal benefit to the contracting party, is one-sided and— without justification—substantively unconscionable. [Citation.] We agree.” (Phan, 10 supra, 121 Cal.App.5th at p. 656.) The court concluded, “In the context of mutuality, the Agreements in this case are analogous to the one in Cook. In both cases, the employer received the significant benefit of requiring the employee to arbitrate all their claims against the listed third parties without any reciprocal benefit to the employee. Like Cook, we find this one-sidedness substantively unconscionable without justification.” (Id. at p. 657.) Finally, the court found the trial court did not abuse its discretion in declining to sever the unconscionable provisions. (Phan, supra, 121 Cal.App.5th at p. 658.) 3. Analysis We note at the outset we are not bound by Phan. (See In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 409 [“because there is no ‘horizontal stare decisis’ within the Court of Appeal, intermediate appellate court precedent … [citation] is not absolutely binding on a different panel of the appellate court”].) Nevertheless, “Respect for our colleagues and the orderly administration of justice—as well as the need of the trial bench, bar and litigants for certainty in the development of the … law—dictate that there be a compelling reason before we overrule a decision of another panel of this court. Mere disagreement with the result or reasoning of an earlier decision does not, in our view, constitute a compelling reason.” (Opsal v. United Services Auto. Assn. (1991) 2 Cal.App.4th 1197, 1203-1204.) “[T]he decision to reach a legal conclusion that differs from an opinion by another panel of this court is not one we make lightly. [Citation.] Indeed, sound institutional principles of stare decisis encourage us to follow existing precedent, and those principles apply, if anything, more strongly to past decisions of this court.” (CPF Vaseo Associates, LLC v. Gray (2018) 29 Cal.App.5th 997, 1005.) In Phan, a different panel of this court recently interpreted an arbitration agreement whose relevant provisions are identical to the ones in this case and found it was unconscionable. Suburban fails to present us with a compelling reason to conclude otherwise. 11  A. Procedural unconscionability The trial court found the agreement had a “moderate” degree of procedural unconscionability because (1) it was an adhesion contract required as a condition of employment, and (2) it could be unilaterally modified by Suburban. Suburban acknowledges the agreement was an adhesion contract and thus had at least a “minimal” degree of procedural unconscionability, but it argues the trial court “erred in finding a higher, moderate level based on the agreement’s modification provision.” We need not decide whether the degree of procedural unconscionability was “moderate” or “minimal” because, in either case, “the potential for overreaching in the employment context warrants close scrutiny of the contract’s terms.” (Ramirez, supra, 16 Cal.5th at p. 494.) Moreover, in Phan, neither party challenged the trial court’s finding that the agreements had a “low” level of procedural unconscionability, and the court went on to find the agreement was substantively unconscionable and unenforceable, and we agree. (Phan, supra, 121 Cal.App.5th at pp. 648, 654-658.) B. Substantive unconscionability Suburban argues the trial court erred in finding the arbitration agreement was substantively unconscionable for numerous reasons. None persuades. i. Preemption Suburban first argues the FAA preempts what it calls the “Cook rule,” and the trial court thus should not have relied on Cook. We disagree. “Congress passed the FAA to ‘overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate’ and to place such agreements ‘ “upon the same footing as other contracts, where it belongs.” ’ ” (Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376, 383 (Cronus).) Thus, “state laws that discriminate against arbitration are preempted where, as here, the FAA applies. That is, the FAA precludes judicial invalidation of an arbitration clause based on state law requirements that are not generally applicable to other contractual clauses.” (Pinnacle Museum Tower Assn. v. 12 Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 245.) The FAA preempts not only state statutes but also state “decisional law” or judge-made rules “that impede[] contractual arbitration agreements” or that single them out for differential treatment. (Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489, 506.) “However, the FAA’s purpose is not to provide special status for arbitration agreements, but only ‘to make arbitration agreements as enforceable as other contracts, but not more so.’ ” (Cronus, supra, 35 Cal.4th at p. 384.) It is thus well established that “generally applicable contract defenses, such as … unconscionability, may be applied to invalidate arbitration agreements without contravening” the FAA. (Cronus, at p. 385; see also Doctor’s Associates, Inc. v. Casarotto (1996) 517 U.S. 681, 687 [same]; OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 125 [same].) “Unconscionability can take different forms depending on the circumstances and terms at issue. However, the doctrine’s application to arbitration agreements must rely on the same principles that govern all contracts. [Citation.] The degree of unfairness required for unconscionability must be as rigorous and demanding for arbitration clauses as for any other contract clause.” (OTO, at p. 125.) Suburban argues Cook establishes “an arbitration-specific rule that an arbitration agreement between an[] employer and its employees that is required as a condition of employment cannot have a scope that extends beyond the employment context or have an indefinite duration,” and such a rule is preempted by the FAA. The Phan court addressed a similar argument and rejected it. The defendant in Phan argued the court should not follow Cook because it concluded “broad arbitration agreements are per se unconscionable” (Phan, supra, 121 Cal.App.5th at p. 652), which is similar to Suburban’s argument that Cook established an arbitration-specific rule that arbitration agreements between an employer and its employees cannot require arbitration of nonemployment-related claims. The Phan court rejected the defendant’s argument because the Cook court “neither expressly nor impliedly suggested that all broadly 13 worded arbitration agreements are per se unconscionable. [Citation.] Instead, Cook found that the agreement between Cook and USC that expressly included claims outside of the employment context—without justification—was overly broad.” (Ibid.) We agree. The Cook court did not establish an arbitration-specific rule. Instead, it applied a generally applicable contract defense—i.e., unconscionability—to the specific agreement at issue and found it was substantively unconscionable. Suburban fails to convince us that the analysis and conclusions in Cook are preempted by the FAA. ii. The agreement is overbroad in scope without justification On the brink of acknowledging that an agreement that encompassed nonemployment-related claims would be unconscionably overbroad, Suburban argues the agreement in this case should be interpreted narrowly as only requiring arbitration of employment-related claims, which would cure the overbreadth problem. To support its argument, it notes the agreement here is distinguishable from the one in Cook. Although the agreements do use different language to specify what claims are subject to arbitration, we agree with Phan that there is “no material difference between the agreement in Cook and the Agreements here.” (Phan, supra, 121 Cal.App.5th at p. 654.) Although the agreement here does not expressly state the parties must arbitrate claims “whether or not arising out of … employment” (like the agreement in Cook did), it does state the parties must arbitrate “all claims which arise out of … any … interaction/relationship we had, have or may have in the future,” and “any claims arising from, related to, or having any relationship or connection whatsoever with my seeking employment with, employment by, or other association with the Company or third-party beneficiaries, whether based on tort, contract, statute, equity or otherwise.” (Italics added.) This language encompasses claims that do not arise out of employment and that instead arise out of other interactions or relationships between the parties. Suburban argues the agreement in this case “mirrors” an agreement in Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, which required the parties to arbitrate all 14 claims “ ‘arising from, related to, or having any relationship or connection whatsoever with my seeking employment with, employment by, or other association with, the Company.’ ” (Id. at p. 1069, italics added.) The defendant in Phan made a similar argument, and the court rejected it, noting, “the Little court did not consider whether the scope of arbitrable claims in the agreement was overly broad” (Phan, supra, 121 Cal.App.5th at p. 655)—to which we would add, “ ‘[i]t is axiomatic that cases are not authority for propositions that are not considered’ ” (Weiss v. City of Del Mar (2019) 39 Cal.App.5th 609, 623). The Phan court also found, “the Agreements here are not analogous to the one in Little. Although the Agreements share similar language to the one in Little, the Agreements here go further. Indeed, unlike Little, Phan agreed to arbitrate any claim that arises out of the employment context ‘or any other interaction/relationship we had, have or may have in the future.’ This language distinguishes the Agreements from the one in Little and instead, demonstrates their overbreadth of arbitrable claims beyond the employment context like the agreement in Cook.” (Phan, at p. 655.) We agree. Suburban urges us to construe the agreement as limited to claims arising out the employment relationship. In order to do so, however, we would have to strike language out of the agreement. We lack the power to rewrite the contract or remove certain provisions. (See Murrey v. Superior Court (2023) 87 Cal.App.5th 1223, 1256 [court cannot “rewrite the agreement to remove the offending provisions”]; Mercuro v. Superior Court (2002) 96 Cal.App.4th 167, 185-186 [court lacks power “to rewrite the contract”].) To quote Phan: “To the extent [Suburban] wanted to include any type of claim that relates, or potentially relates, to employment relationships, it could have said so in a manner that was broad enough to capture those claims but not so broad as to go beyond them.” (Phan, supra, 121 Cal.App.5th at p. 656.) And to quote another case: “Had [Suburban] intended to subject only employment-related claims to arbitration, it would have been a simple matter to say so. Instead, [Suburban] used far more expansive 15 language—‘any and all claims[ which arise out of … any … interaction/relationship we had, have or may have in the future].’ Suffice it to say, ‘all’ means all.” (Stoker v. Blue Origin, LLC (2026) 120 Cal.App.5th 91, 108.) Suburban notes the agreement defines arbitrable claims as “including, but not limited to, any claims of discrimination and harassment, whether they be based on the California Fair Employment and Housing Act, the Americans With Disabilities Act, Title VII of the Civil Rights Act of 1964, as amended, claims pursuant to the California Private Attorneys General Act (‘PAGA’) unless prohibited by controlling law, as well as all other applicable state or federal laws or regulations.” It then notes all of the examples are related to employment. Finally, citing Cocom v. ABM Aviation, Inc. (9th Cir. 2026) 179 F.4th 1168 (Cocom), it argues we should apply the doctrine of ejusdem generis and interpret the agreement as limited to employment-related claims. “ ‘Under the principle of ejusdem generis … , where specific words follow general words in a contract, the general words are construed to embrace only things similar in nature to those enumerated by the specific words.’ [Citation.] ‘ “Including, but not limited to” is a phrase of enlargement but not necessarily a phrase without limits. While the proviso “including, but not limited to” connotes an illustrative listing, the specific examples listed may restrict the meaning of the defined term.’ ” (Id. at p. 1175.) Suburban argues that because the agreement in this case specifically lists only employment-related claims, we should utilize the “interpretive principle of esjudem generis” (ibid.) to “narrow[]” the agreement’s “broad arbitration requirement” as encompassing “claims solely arising out of the employment context.” We disagree. A closer examination of the Cocom cases explains why. In Cocom, the district court found an arbitration agreement was unconscionable “based on the analysis in Cook.” (Cocom, supra, 179 F.4th at p. 1171.) The defendant appealed, and the Ninth Circuit reversed, finding, “the challenged provisions of the arbitration agreement here are distinguishable in important ways from the provisions held 16 unconscionable in Cook.” (Ibid.) The arbitration agreement (or MAA, for mutual arbitration agreement) in Cocom provided the parties agreed to arbitrate all claims “including but not limited to claims arising and/or relating in any way to my hiring, my employment or association with, my compensation, and/or the end of my employment with, the Company.” (Id. at p. 1172.) It also provided, “Covered Claims include, but are not limited to, any claim for breach of contract, for any provision of federal or state labor code or a Wage Order, for unpaid fees, expenses, wages, or overtime, for unpaid compensation or penalties for missed meal or rest breaks, for wrongful termination, for unfair competition, for discrimination, harassment, or unlawful retaliation, for violation of the Uniformed Services Employment and Reemployment Rights Act, for violation of the Fair Labor Standards Act, or any federal, state, or local laws.” (Ibid.) “Relying heavily on the California Court of Appeal’s decision in Cook, [citation], the district court interpreted the ‘including but not limited to’ language in the MAA’s definition of covered claims to mean that the MAA applied to any claims whatsoever, even those with no relation to Cocom’s employment.” (Ibid.) The Ninth Circuit disagreed and found the agreement “is limited to employment- related disputes, making this case distinguishable from Cook.” (Cocom, supra, 179 F.4th at p. 1175.) Citing the principle of ejusdem generis, the Ninth Circuit found, “The general terms in the MAA—‘all disputes’ and ‘any claim’ are narrowed by the subsequent list of specific terms: ‘my hiring, my employment, my compensation, and/or the end of my employment, with the Company,’ as well as ‘any claim for breach of contract, for any provision of federal or state labor code or a Wage Order, for unpaid fees, expenses, wages, or overtime,’ and the like. The employment-related nature of the enumerated terms restricts the meaning of the more general terms to encompass only employment-related disputes.” (Ibid.) Critically, however, the Ninth Circuit also found, “[a]n equivalent ejusdem generis analysis would not have been possible in Cook. The enumeration of covered claims there included claims unrelated to employment—most 17 notably, a general reference to tort claims. [Citation.] It was the prospect of precisely those sorts of claims—tort suits unrelated to employment—that loomed large in the Cook court’s analysis: the examples it relied on to illustrate the agreement’s unconscionable breadth were tort suits unrelated to employment,” for example, a “ ‘botched surgery in a USC hospital’ ” years after the plaintiff’s employment had ended. (Id. at pp. 1175-1176.) We agree, and we find an equivalent ejusdem generis analysis is also not possible in this case. As in Cook, the enumeration of covered claims in this case includes claims “based on tort” arising from any “association with the Company or third party beneficiaries.” For example, if Martinez were to buy a defective car from Suburban, the agreement could encompass a product liability lawsuit. Moreover, and unlike the agreement in Cocom, the agreement here expressly provides it applies to claims “which arise out of the employment context or any other interaction/relationship we had, have or may have in the future.” (Italics added.) We cannot use the ejusdem generis doctrine to write the italicized language out of the agreement. Suburban also cites Ayala-Ventura v. Superior Court (2026) 119 Cal.App.5th 241 to support its argument that the agreement should be construed as only covering employment-related claims. The arbitration agreement in Ayala-Ventura expressly applied to all claims “ ‘whether or not arising out of Employee’s employment or the termination of employment.’ ” (Id. at p. 247.) The employee argued it was overbroad because it applied to claims unrelated to employment. (Id. at p. 255.) The employer interpreted this language differently and argued it “means if a claim arises out of employment but does not involve termination of employment, it is still covered and vice versa. [The employer] argue[d] the Agreement is not overbroad because its intended scope is employment-related claims.” (Ibid.) The court found, “The parties’ opposing interpretations reflect the Agreement is somewhat ambigu