The following excerpt is from O'Brien v. American Express Co., Civil No. 11-CV-1822-BTM (BGS) (S.D. Cal. 2012):
The procedural element focuses on "oppression" or "surprise." Id. (quotations and citations omitted). "'Oppression' arises from an inequality of bargaining power which results in no real negotiation and 'an absence of meaningful choice.'" Bruni v. Didion, 160 Cal.App.4th 1272, 1288 (2008) (quotations and citations omitted). "'Surprise' involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in a prolix printed form drafted by the party seeking to enforce the disputed terms." Id. (quotations and citations omitted). The substantive element of unconscionability focuses on "overly harsh" or "one-sided" results. Armendariz, 24 Cal.4th at 114 (quotations and citations omitted). "A contract is largely an allocation of risks between the parties. A contractual term is substantively suspect if, viewed at the time the contract was formed, it allocates the risks in an unreasonable or unexpected manner." Zullo v. Superior Court, 197 Cal.App.4th 477, 484 (2011) (citation omitted). Both elements must be present to invalidate a contract for unconscionability, but they need not be present in equal parts. Id. "[T]he 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, 24 Cal.4th at 114.
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