On remand from the Supreme Court, in an opinion we refer to as Brown II, we overruled one syllabus point of Brown I but otherwise reaffirmed all of our other holdings. FAQ. A. hTn0 q"hzR8H!$T&PJza+!^(xL'IuyhVo>UizJu#q[Kn;/6yOUy:1.U49[\@.I5Jr,qjIvN}>0V-b * HC>R'oOd R. I am currently in the process of buying/building a new construction townhouse bin Strabane Manor, Washington Pa. We signed the contract in March. Property Development and Owners' Associations, Scott W. Kowalski, Mark A. Burgin, Thomas M. Wolf, Kenneth T. Stout and Jason F. Goldsmith. Dan Ryan Builders v. Crystal Ridge Development, Inc. :: 2017 :: Supreme Court of Appeals of West Virginia Decisions :: West Virginia Case Law :: West Virginia Law :: US Law :: Justia Justia US Law Case Law West Virginia Case Law Supreme Court of Appeals of West Virginia Decisions 2017 Dan Ryan Builders v. Crystal Ridge Development, Inc. In 2016 we decided that it was finally time to move out of our little townhouse into a single family home. Dan Ryan management needs to tell their people to be more informative and HONEST! Seemed vague, but we decided to move on and seek something else. 43-45). I've been sending texts to remind them and still waiting to hear from them Get buying tips about Home Builders and Developers delivered to your inbox. See Syllabus Point 6, Brown v. Genesis Healthcare Corp., 228 W.Va. 646, 724 S.E.2d 250 (2011) (Brown I ).5 The federal statute contains two parts: the first part holds that written arbitration agreements affecting interstate commerce are valid, irrevocable, and enforceable, but the second part is a savings clause that allows courts to invalidate those arbitration agreements using general contract principles. 228 W.Va. at 66970, 724 S.E.2d at 27374. A Contractual Analysis, 75 Temp.L.Rev. 782 (1931), that in contract formation [a] valuable consideration may consist either in some right, interest, profit or benefit accruing to the one party or some forbearance, detriment, loss or responsibility given, suffered, or undertaken by the other., In the instant case, the Nelsons assert that the arbitration clause should fail for lack of consideration because the benefits accruing to the parties under the arbitration provision are significantly different, and therefore lack mutuality. Dan Ryan constructed new homes in the Foxbank subdivision of Berkeley County, South Carolina, ( id. Our examination of treatises,8 of journals,9 and of cases from other jurisdictions suggests that, as in the instant case, parties to contracts frequently challenge the enforceability of arbitration clausesclauses which do not impose parallel duties to arbitrate on both partieson the ground that the clauses lack consideration or lack equivalent promises (that is, lack mutuality of obligation). Dan Ryan Builders has an overall rating of 2.9 out of 5, based on over 52 reviews left anonymously by employees. Then when I try to call and voice my concern, you can not get a hold of anyone. In response to DRB's petition, the Nelsons argued to the district court that the arbitration provision (which allowed DRB to pursue some claims in court while requiring the Nelsons to arbitrate all of their claims) was unenforceable because it lacked consideration, and because it was unconscionable. The district court's order stated: [T]his Court finds that the arbitration clause in the Agreement of Sale used by DRB in its transaction with the [Nelsons] fails for want of mutual consideration. For similar reasons, the Court denied DRBs request to initiate a direct action against MI Windows. Warranty Careers Contact. Our goal is to provide every customer a quality home and great home buying experience before and after their home is complete. The term consideration has been defined as some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by another. Dan Ryan Builders South Carolina, LLC in N Charleston, SC | Photos | Reviews | 1229 building permits for $91,810,100. He stated the home would soon be $269,990 and actually was changed on the website already! Dan Ryan Builders Profile and History . They actually may have been. Get connected with a professional near you on HomeAdvisor. See, Syllabus Point 17, Brown I. Original review: Jan. 21, 2023. As of June 21 I had not heard from anyone, sent another email. Their BuildZoom score of 107 ranks in the top 6% of 79,084 South Carolina licensed contractors. Does West Virginia law require that an arbitration provision, which appears as a single clause in a multi-clause contract, itself be supported by mutual consideration when the contract as a whole is supported by adequate consideration? Enjoy reading our tips and recommendations. 21 customer reviews of Dan Ryan Builders. Both the Sales Agreement and the Limited Warranty Agreement required binding arbitration. The formation of a contract requires only consideration, not mutual obligations by the parties. Our ceilings were not smooth (still arent) & looked as if they were painted by a child. On the day before closing we were so disappointed as we and the builder managers assistant (Christian) put up nearly 50 pieces of tape for corrections. This is ridiculous. Neither Petty, Livingston, Dawson & Richards, P.C. Will be used in accordance with our terms of service & privacy policy. See, e.g., Richard A. Lord, 3 Williston on Contracts 7:14 at 32630 (4th Ed.2008) (The courts have often stated as a requirement for the formation of simple contracts that there must be mutuality of obligation. Case Update: Iovino v. Michael Stapleton Assocs. Ams., Inc. 2020 Case Update: Krevskop v. Town Council (In re July 17, 2017 Decision of the Bd. 7. I said ok - wasn't thrilled with that but I went with it. How do I know I can trust these reviews about Dan Ryan Builders? To make this review shorter, this home was built very poorly. We closed on our home on Sept 17 2021 in Atlanta subdivision. There can be no contract if there is one of these essential elements upon which the minds of the parties are not in agreement.). After reviewing other reviews, I pray that it is built properly because right now I am not convinced in their ability to even build a quality home! This should have never happened and is work done poorly. It seems to connote equality, fairness, justice[. Rule 12 (b)(1); Association Standing; In re: Civil Penalty; eCourts is NOW LIVE in Harnett, Johnston, Lee, and Wake Counties.Find information, training, and resources. President at Dan Ryan Builders, Inc. Frederick, Maryland, United . We value your privacy. Hence, a single clause within a multi-clause contract does not require separate consideration. Jorden & Co., Inc. v. Blythe Industries, Inc., 702 F.Supp. In fact over the next 5 months whenever we would bring things to his attention he was always very nonchalant, but assuring us that on closing day it would be perfect. We agree with the federal court's determination that Saylor provides no guidance. Such unilateral arbitration clauses lend themselves extremely well to the application of the doctrine of unconscionability because the right the clause bestows upon its beneficiary is so wholly one-sided and unfair that the courts should feel no reluctance in finding it unacceptable: The doctrine of unconscionability fits the unilateral arbitration clause wonderfully well. They don't need to see, they need to take care of it ALL! But unfortunately this home needs so much work. Compare pay for popular roles and read about the team's work-life balance. Welcome back to my channel. Instead, DRB argues that, under West Virginia law, individual clauses of contracts (including arbitration clauses) need not be supported by additional consideration where the contract as a whole is supported by sufficient and mutual consideration. In a majority of jurisdictions, it is well-settled that a contract which requires the weaker party to arbitrate any claims he or she may have, but permits the stronger party to seek redress through the courts, may be found to be substantively unconscionable. Co. & Associates, 656 P.2d 1184, 1185 (Alaska 1983) (As one clause in a larger contract, the [arbitration] clause is binding to the same extent that the contract as a whole is binding.). I hate being deceived, which is what David seems to have done! The Marroquins signed a Limited Warranty Agreement issued by Quality Builders Warranty Corporation (QBW), which was attached to the Agreement of Sale. Stone Martin Builders are new home builders, based out of Opelika, AL, building homes across Alabama including Huntsville, Prattville, Montgomery, Auburn, Dothan, and more! In addressing the Marroquins contention that the arbitration clauses are unconscionable because the Limited Warranty Agreement gave QBW the sole right to designate the arbitration service, the Court held that the terms were not so one-sided as to shock the conscience and that the Limited Warranty Agreement provided for the arbitration to be at the Marroquins home, which undermined the Marroquins argument that they would be priced out of the arbitration due to travel costs. We value your privacy. 4. MUST WATCH: Today at the Leesburg, FL mall outside of Books A Million where I had my pro Trump rally in front of DeSantis's book signing, Governor DeSantis & his staff ordered the police to make "anyone wearing a Trump shirt" or anyone with any "Trump gear" leave! 55, and defendant Frankenmuth Mutual Insurance Company's ("Frankenmuth") motion for summary judgment, ECF No. My first time over a year ago we spoke to Tim Dunham, along with several others. Prior to commencing arbitration, the dispute shall first be mediated in accordance with the Construction Industry Mediation Rules of AAA, or another mediation service designated by Us. Using only the highest quality, name brand materials, building in the best locations for each metro . He indicated this could be done, and we discussed other details. 6. STONEHAVEN. We were trapped! In Arnold, an elderly couple received a mortgage loan from a lender, and in the transaction the couple was presented with more than twenty-five documents to sign. I am not enjoying the process. A mid-sized, privately held company, Dan Ryan Builders is #50 on the Builder Top 100 list. The last time we checked, a license was not required for . Case Update: Concord Crossroads, LLC v. Human Capital Res. The elements of a contract are an offer and an acceptance supported by consideration. Get Exclusive Access To New Construction Homes Now:https://DMVsNewHomes.com Are you looking for a New Home in Frederick Maryland? The civil suit, filed today in New Castle [] Hence, when a statute or common-law doctrine outright prohibits the arbitration of a particular type of claim, or which targets arbitration provisions for disfavored treatment not applied to other contractual terms generally, then the conflicting doctrine is displaced by the FAA. Ordnance Sys. Mon - Fri 8:30 am - 5 pm Sat Closed Sun Closed, Copyright 2022 Petty, Livingston, Dawson & Richards PC | Site Design by Stimulus. Under West Virginia law, we analyze unconscionability in terms of two component parts: procedural unconscionability and substantive unconscionability. Brown I, 228 W.Va. at 681, 724 S.E.2d at 285. The Nelsons assert that the provision required that they give up all rights to pursue any claims in a court in favor of arbitration, while simultaneously giving DRB the right to go to court for the only claim that DRB was likely to pursue (to compel the Nelsons to pay for the house).7. I have been trying to reach someone at corporate all day and leaving messages and NOT ONE person has called me back. Dan Ryan continues his family's legacy of homebuilding as owner and president of Dan Ryan Builders and DRB Enterprises LLC, which has built over 10,000 homes . Dan Ryan Builders, Inc. v. Nelson, 682 F.3d 327 (4th Cir.2012). We closed on our Dan Ryan home in May 2021 with front porch columns that were incorrect. Definitely get it in writing and hold their feet to the fire! :/@3<2=< "/b7=</: <ac@/<13 =;>/<g 13""$11-0 !7 +$0&$0 2- 311$6 ,130 ,"$ -+. Also, he said any options the working home on the lot we looked at were already submitted and no changes could be made. ,7 d 7d7: 1b7=< "= Worldwide, Inc. v. ProActive Techs., Inc. Case Update: Liu v. Lowe's Home Improvement. So we decided to mention it to the builder manager (Deangelo) over Luella Grove. We had no issue with the several options we wanted, but no other offer was made of a home based at $259,990. It does not. However, we further conclude that under the doctrine of unconscionability, a trial court may decline to enforce a contract clause such as an arbitration provision if the obligations or rights created by the clause unfairly lack mutuality.The Kuchareks and Schultzes both hired Dan Ryan Builders to construct a home in Hedgesville, but filed lawsuits against the company in 2012. On April 26 I emailed him back with a date in which they would do a site visit. However, as it turned out, some had options and features we did not want, and only 2 homes were in our pricing range. Whether the parties' obligations are mutual is a factor to examine in determining unconscionability. Consultants available: This is a horrible company and they should be run out of business! ( Id. Helpful 16 people found this review helpful George of. You need to enable user registration from User Manager/Options in the backend of Joomla before this module will activate. The concept of unconscionability must be applied in a flexible manner, taking into consideration all of the facts and circumstances of a particular case. Syllabus Point 12, Brown I. MARTINSBURG A federal judge has ruled that two lawsuits filed by Berkeley County couples against a home builder must be sent to arbitration.U.S. Fixtures, doorknobs & hardware were all mismatched(chrome here, bronze there). See also, Cook v. Heck's Inc., 176 W.Va. 368, 373, 342 S.E.2d 453, 458459 (1986) (Consideration is also an essential element of a contract.); Syllabus Point 1, Thomas v. Mott, 74 W.Va. 493, 82 S.E. 709 0 obj <> endobj Plus: commentary from Ryan Bomberger, and the Wednesday morning news. Hence, a single clause within a multi-clause contract does not require separate consideration. The Marroquins filed a lawsuit against Dan Ryan for breach of statutory warranty (Virginia Code 55.1-357) and breach of the Limited Warranty Agreement. Before closing, we had 5 walk-throughs. 2020 Case Update: White Oak Power Constructors v. Mitsubishi Hitachi Power Sys. 23369 Walking Woods Lane Aldie, VA 20105. Prospective homebuyers can tour homes under construction to get a first-hand look at the quality, features and style that they can expect in their own home. Syllabus Point 1, First Nat. Residential Builders Rbc Residential Builders Certificate Of Authorization License: RBC.289. On October 31, 2017, the Marroquins took possession of the property, but alleged that it was not free from structural defects, would not pass without objection in the trade, was not constructed in a workmanlike manner, and was not fit for habitation. In 2014 and 2017, two separate lawsuits were filed against Dan Ryan (the "underlying lawsuits"), which were later consolidated and are currently pending in South Carolina state court. The concept of unconscionability must be applied in a flexible manner, taking into consideration all of the facts and circumstances of a particular case. Syllabus Point 12, in part, Brown I. I am at the end of my rope. Several options we didnt even want, but he stated they could not be changed! So finally, they decided to give a closing date and it is December 29, 2022! You need to enable user registration from User Manager/Options in the backend of Joomla before this module will activate. Our decision in Brown I was later vacated by the United States Supreme Court in Marmet Health Care Center, Inc. v. Brown, 132 S.Ct. The Marroquins filed a lawsuit against Dan Ryan for breach of statutory warranty (Virginia Code 55.1-357) and breach of the Limited Warranty Agreement. However, when I arrived as we planned Friday, 2/25, David showed me several townhomes that were under construction but said he had to discuss the base pricing where previously he told me he would let me know if that $259,995 for the 1 car garage Summit would change. A federal district court previously determined that the arbitration provision was not enforceable because it lacked mutuality of obligation and mutuality of consideration.. Phone Number (240) 420-6046. In April 2019, a Scheduling Order was entered and a jury trial was scheduled for July 27, 2020. hb```" @q@!! However, we further conclude that under the doctrine of unconscionability, a trial court may decline to enforce a contract clausesuch as an arbitration provisionif the obligations or rights created by the clause unfairly lack mutuality. 9. They assured me that I won't be in my home for Thanksgiving, but I will be in there by Christmas and that I should be able to close the beginning of December. Petty, Livingston, Dawson & Richards encourages you to contact the Firm via e-mail or otherwise. by John Yellig. David told me that the Summit would increase on Tuesday, 3/1, but the increase in cost to me for the only home near our budget (about $272k) was, in fact, about the same 8k we talked about! Tuesday-Sunday 11am - 5pm & Concepts, Inc. Case Update: BAE Sys. Its location on this page may change next time you visit. Upon a engineer's review and report this leak had been happening for years. For example, in Arnold v. United Companies Lending Corp., 204 W.Va. 229, 511 S.E.2d 854 (1998), this Court found that an arbitration agreement with non-reciprocal obligations was unconscionable, void and unenforceable. The damage . Dan Ryan Builders serves customers in the United States. In May 2008, Norman Nelson signed a 56page contract with DRB for the sale and purchase of that home for $385,000.00. He didnt seem to think is was a big deal. Substantive unconscionability involves unfairness in the terms of the contract itself, and arises when a contract term is so one-sided that it has an overly harsh effect on the disadvantaged party. The treatise states: It was once common for courts to state that mutuality of obligation is necessary for a valid contract; that both parties to a contract must be bound or neither is bound; that a contract is void for lack of mutuality.. Neva did try to help us out with our mail situation, as we didnt get mailbox/keys until about 3 weeks after closing. ,(-, .$"( *27 ,130 ,"$ -+. %%EOF Unfortunately, this form of statement may cause confusion for it has no definite meaning; it is, in fact, simply an awkward way of stating that there must be a valid consideration.); Restatement (Second) of Contracts 79 (1981) (If the requirement of consideration is met, there is no additional requirement of (c) mutuality of obligation. ). Mon - Fri 8:30 am - 5 pm Sat Closed Sun Closed, Copyright 2022 Petty, Livingston, Dawson & Richards PC | Site Design by Stimulus. We concluded that the restaurant's promise to merely review the plaintiff's application was not sufficient consideration and ruled that the entire arbitration contract was unenforceable. Don't get me wrong that is an acceptable reason in certain industries, but when I see DRB building all over surrounding areas you can't tell me that you don't have staff to finish out the development! The first day of construction, we noticed cut corners. Thank you for sharing your concerns. My greatest concerns is that the hole will get worse which can result in collapse of the fence line and that it is near the wood deck that could cause structural damage. On April 24 2022, I contacted the warranty department of Dan Ryan to inform them that a sink hole is developing along a fence line that I share with my neighbors. Get the inside scoop on jobs, salaries, top office locations, and CEO insights. I travelled up there, and he answered a number of questions, but said we had to talk about the pricing for the Summit. So, I looked things over, but when I compared the options with what is included in the Summit, it became apparent I was being changed for numerous options the home showed were already included! Everything has to be redone (loan wise) and I will have to pay additional money to extend my rate lock. The parent, DRB Group, said the rebranding will take effect June 1 and consolidate more than 100 active communities from Dan Ryan, Knight Homes, an Atlanta . While the first part of Section 2 of the FAA preempts state statutes and doctrines that deliberately impede the rights of private parties to agree to arbitration, under the savings clause of Section 2, general state contract principles still apply to assess whether those agreements to arbitrate are valid and enforceable, just as they would to any other contract dispute arising under state law. In several recent opinions discussing the unconscionability doctrine, we have noted that the lack of mutuality in a contractual obligationparticularly in the context of arbitrationis an element a court may consider in assessing the substantive unconscionability of a contract term. The district court stayed litigation of the Berkeley County lawsuit until DRB's petition could be resolved. He had told me that since we own our home outright with no mortgage, I might need to get another mortgage and work with a gentleman whose card he gave me. If you dont have a real estate agent, you can consult with an agent provided by Dan Ryan Builders. The contract did not state that DRB is not liable for special, indirect, or consequential damages.Additionally, the contract did not prohibit Plaintiffs from retaining their own attorney to review the contract, and Mrs. Schultz acknowledged that they could have retained an attorney.In sum, considering the totality of the circumstances in this case, Plaintiffs have failed to demonstrate that the contract and its terms were so unfair that it resulted in an overall imbalance or one-sidedness of the contract.The Kuchareks and Schultzes were represented by Charles Town attorney Kirk H. Bottner, while Jason S. Murphy and Susan R. Snowden of Martin & Seibert in Martinsburg represented Dan Ryan Builders.From the West Virginia Record: Reach John OBrien at jobrienwv@gmail.com. However, several days later we talked and he said the plans had been submitted and no changes would be allowed. ;YjjM*|VMb[q2[e|O?Q*F@$>@ We conclude that West Virginia's law of contract formation only requires that a contract as a whole be supported by adequate consideration. We emphasize that a one-sided contract provision may not be unconscionable under the facts of all cases. New Homes by Dan Ryan Builders. They kept telling me I will provide a closing date when cabinets are installed, but when the cabinets were installed, they didn't want to provide one saying they are running into vendors not showing up when scheduled! Syllabus Point 20, Brown I; State ex rel. The Marroquins did not dispute that their claims were within the scope of the Sales Agreement and the Limited Warranty Agreement. The bottom line is we are very disappointed and have wasted much time and expense trying to buy from Dan Ryan. It also alleges that DRB negligently designed and constructed the septic system, which resulted in property damages and bodily injury. The shingles needed to be replaced, but instead were painted a different color, so tacky. Corp., 206 W.Va. 133, 522 S .E.2d 424 (1999) (This Court undertakes plenary review of legal issues presented by certified question from a federal district or appellate court.). However, under the doctrine of unconscionability, a trial court may decline to enforce a contract clausesuch as an arbitration provisionif the obligations or rights created by the clause unfairly lack mutuality. Founders Dan Ryan. The use of the Internet for communications with the Firm will not establish an attorney-client relationship and messages containing confidential or time-sensitive information should not be sent until you and we agree that there is an attorney-client relationship between us. The Scheduling Order only allowed parties to amend their pleadings after July 31, 2019 if there was a showing of good cause for granting the requests to amend. Companies displayed may pay us to be Authorized or when you click a link, call a number or fill a form on our site. Our in-house teams manage the full . Wed asked that it be put in a certain location for us to be able to put in a pool. Monday 1pm - 5pm. The statute has no talismanic effect; the purpose of Congress in adopting it was to make arbitration agreements as enforceable as other contracts, but not more so. Brown I, 228 W.Va. at 671, 724 S.E.2d at 275 (footnotes omitted).6 [A]rbitration is simply a matter of contract between the parties; it is a way to resolve those disputesbut only those disputesthat the parties have agreed to submit to arbitration. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995). Dan Ryan Builders, Inc. v. Nelson, 682 F.3d 327 (4th Cir.2012). All joy is gone. Hans Smit, The Unilateral Arbitration Clause: A Comparative Analysis, 20 Am.Rev.Int'l Arb. 1201 (2012). District Judge Gina Groh, of the Northern District of West Virginia, made the rulings July 3 in lawsuits brought by David and Gabriella Schultz and Robert and Bobbie Kucharek against Dan Ryan Builders, Inc.The rulings come the U.S. Court of Appeals for the Fourth Circuit certified a question of law to the state Supreme Court in another case against Dan Ryan Builders.The state Supreme Court was given the question: Does West Virginia law require that an arbitration provision, which appears as a single clause in a multi-clause contract, itself be supported by mutual consideration when the contract as a whole is supported by adequate consideration?The Fourth Circuit had decided state law was unclear on the issue and submitted the question to the court, which answered it in November.In the answer, the states high court recognized that litigants, such as the plaintiffs in this case, often challenge arbitration clauses that appear not to impose equal duties to arbitrate on each of the parties.Arbitration clauses are challenged on the grounds that they lack consideration or lack mutuality of obligation.Justice Menis Ketchum wrote in the opinion: We conclude that West Virginias law of contract formation only requires that a contract as a whole be supported by adequate consideration. The parties hereto specifically acknowledge that they are and shall be bound by arbitration and are barred from initiating any proceeding or action whatsoever in connection with this Agreement. We put down a sizable deposit on a build with Dan Ryan. One day we stopped by & there was a child painting the outside column. Sign up to receive our free weekly newsletter. Where a party shows that genuine issues of material fact exist regarding the existence of an agreement to arbitrate, that party is entitled to a jury trial on that issue. Second, the advantage the clause gives to its beneficiary is most unreasonable. Nothing on this webpage should be interpreted to guarantee or predict a similar result in any future case. 5. You need JavaScript enabled to view it. DAN RYAN BUILDERS WEST VIRGINIA, LLC, f/k/a Dan Ryan Builders Inc. and Dan Ryan Builders South Carolina, LLC, Plaintiffs, v. . A court in its equity powers is charged with the discretion to determine, on a case-by-case basis, whether a contract provision is so harsh and overly unfair that it should not be enforced under the doctrine of unconscionability. The Marroquins acknowledged that some issues were fixed but the issues in their counsels August 1, 2019 letter remained unfixed. On January 10, 2020, DRB filed a motion to amend/correct its Third-Party Complaint to add a new subcontractor, Southern Maryland Heating and Air, Inc. (Southern Maryland) and to initiate a direct action against MI Windows. DRB subsequently filed a petition in the United States District Court for the Northern District of West Virginia, pursuant to the Federal Arbitration Act (the FAA),3 seeking to compel Mr. and Mrs. Nelson4 to submit their claims to arbitration. DRAYTON. Dunlap v. Berger, 211 W.Va. 549, 567 S.E.2d 265 (2002). ANDREW CABALLERO-REYNOLDS/AFP via Getty Images. RUN don't walk to another builder! Its essential elements have been held to be an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party. Both elements are present in the case of a unilateral arbitration clause. Thank you, you have successfully subscribed to our newsletter! Rather, the Marroquins argued the arbitration clause was unconscionable and, therefore, unenforceable. It has been building homes for 25 years. Brown II, 229 W.Va. at 393, 729 S.E.2d at 228 (quoting Mercuro v. Superior Court, 96 Cal.App.4th 167, 176, 116 Cal.Rptr.2d 671, 677 (2002); Brown I, 228 W.Va. at 683, 724 S.E.2d at 287; and Abramson v. Juniper Networks, Inc., 115 Cal.App.4th 638, 657, 9 Cal.Rptr.3d 422, 437 (2004)). : this is a factor to examine in determining unconscionability we spoke Tim. 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