Yesterday, the California Supreme Court issued a decision in Fuentes v. Empire Nissan, in which it addressed how the “tiny and unreadable print” in which a contract (here, an arbitration agreement) is printed plays into a court’s unconscionability analysis. The court held “that a contract’s format generally is irrelevant to the substantive unconscionability analysis, which focuses on the fairness of the contract’s terms, but that courts must closely scrutinize the terms of difficult-to-read contracts for unfairness or one-sidedness.” It explained, “small font size can provide a basis for requiring a lesser showing of substantive unconscionability in the sliding scale analysis. But because font size does not affect the substance of an agreement’s terms, it cannot render a contractual term substantively unconscionable.”
The Court went on to find remand necessary to determine whether a lack of mutuality made the agreement unconscionable. As to that issue, Chief Justice Guerrero vigorously dissented, suggesting the Court was wrongly reviving a forfeited issue.
