Jason Lhotka was thirty-seven years old when he died of an altitude-related illness while on a GeoEx [Geographic Expeditions, Inc.] expedition up Mount Kilimanjaro with his mother, plaintiff Sandra Menefee. GeoEx’s limitation of liability and release form, which both Lhotka and Menefee signed as a requirement of participating in the expedition, provided that each of them released GeoEx from all liability in connection with the trek and waived any claims for liability “to the maximum extent permitted by law.” The release * * * reads: “I understand that all Trip Applications are subject to acceptance by GeoEx in San Francisco, California, USA. I agree that in the unlikely event a dispute of any kind arises between me and GeoEx, the following conditions will apply:

(a) the dispute will be submitted to a neutral third-party mediator in San Francisco, California, with both parties splitting equally the cost of such mediator. If the dispute cannot be resolved through mediation, then

(b) the dispute will be submitted for binding arbitration to the American Arbitration Association in San Francisco, California;

(c) the dispute will be governed by California law; and (d)

the maximum amount of recovery to which I will be entitled under any and all circumstances will be the sum of the land and air cost of my trip with GeoEx. I agree that this is a fair and reasonable limitation on the damages, of any sort whatsoever, that I may suffer. I agree to fully indemnify [compensate] GeoEx for all of its costs (including attorneys’

fees) if I commence an action or claim against GeoEx based upon claims I have previously released or waived by signing this release.”

Menefee paid $16,831 for herself and Lhotka to go on the trip.

A letter from GeoEx president James Sano that accompanied the limitation of liability and release explained that the form was mandatory and that, on this point, “our lawyers, insurance carriers and medical consultants give us no discretion. A signed, unmodifi ed release form is required before any traveler may join one of our trips.

* * * My review of other travel companies’ release forms suggests that our forms are not a whole lot different from theirs.”

After her son’s death, Menefee sued GeoEx for wrongful death and alleged various theories of liability including fraud, gross negligence and recklessness, and intentional infl iction of emotional distress.

GeoEx moved to compel arbitration.

The trial court found the arbitration provision was unconscionable......

Questions:-

1. What did the judge mean when he said that GeoEx’s one-sided arbitration scheme “may well guarantee that GeoEx wins even if it loses”?

2. Did the fact that the terms of the release were nonnegotiable contribute to its procedural unconscionability or its substantive unconscionability? Explain.