La Sala v. Bally Total Fitness
Filed 9/4/08 La Sala v. Bally Total Fitness CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FOUR
MICHAEL La SALA, Plaintiff and Respondent, v. BALLY TOTAL FITNESS CORPORATION et al., Defendants and Appellants. | A118461 (San Francisco County Super. Ct. No. 454953) ORDER DENYING REHEARING AND MODIFYING OPINION [NO CHANGE IN JUDGMENT] |
THE COURT:
Plaintiffs petition for rehearing is denied. The opinion filed August 11, 2008, is modified as follows:
On page 17, strike the first full paragraph of the filed opinion and replace the stricken language with:
As previously discussed (see II.B., ante), ordinarily a court must decide whether there is a valid agreement to arbitrate between the parties. Hence, if the party resisting arbitration is claiming that the arbitration clause itself is unconscionable, a court must decide this claim. (Discover Bank v. Superior Court, supra, 36 Cal.4th at p. 171; Murphy v. Check N Go of California, Inc. (2007) 156 Cal.App.4th 138,144-145 [judge proper gatekeeper to determine unconscionability in adhesion contract]; see also Doctors Associates, Inc. v. Casarotto, supra, 517 U.S. at p. 687 [generally applicable contract defenses, such as fraud, duress, and unconscionability, may be applied to invalidate arbitration agreements without contravening [the FAA]].)
The above modification does not effect any change in the appellate judgment. (Cal Rules of Court, rule 8.260(c)(2).)
DATED: ____________________________P.J.
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