Opposition ObjectionsCal. Super. - 6th Dist.March 18, 202010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20CV365245 Santa Clara - Civil AEGIS LAW FIRM, PC _ _ KASHIF HAQUE, State Bar No. 218672 Electronngally Fuled SAMUEL A. WONG, State Bar No. 217104 by Super'Or COU” 0f CA, JESSICA L. CAMPBELL, State Bar No. 280626 C°unty 0f Santa C'aras FAWN F. Bekam, State Bar No. 3073 12 Email: fbekam@aegislawfirm.com 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 UNITED EMPLOYEES LAW GROUP Walter L. Haines, State Bar N0. 7 1075 5500 Bolsa Avenue, Suite 201 Huntington Beach, California 92649 Phone Number: (562) 256-1047 Fax Number: (562) 256-1006 Attorneys for Plaintiff Araceli Sanchez, on 2/2/2021 8:52 AM Reviewed By: R. Walker Case #20CV365245 Envelope: 5758183 individually and 0n behalf 0f all others similarly situated SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA ARACELI SANCHEZ, individually and 0n behalf of all others similarly situated Plaintiff, VS. EMERALD TEXTILES SERVICES, SAN DIEGO, LLC; EMERALD TEXTILES SERVICES, NORTHERN CALIFORNIA, LLC; and DOES 1 through 20, inclusive, Defendants. Case N0. 20CV365245 AssignedforAll Purposes t0 the: Hon. PatriciaM Lucas, Dept. 3 OPPOSITION TO MOTION TO COMPEL ARBITRATION AND STAY ACTION Hearing: February 17, 2021 Date: 1:30 p.m. Dept: 3 OPPOSITION TO MOTION TO COMPEL ARBITRATION UI-hWN \OOOQQ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION Defendant Emerald Textiles Services, Northern California, LLC and Emerald Textile Services, San Diego, LLC’s (“Defendants”) motion t0 compel arbitration must be denied because the plain language 0f their arbitration agreement requires Plaintiff’s class and collective claims t0 be litigated in court, not in arbitration. Specifically, the arbitration agreement contains a waiver of class and collective claims which, if found t0 be unenforceable, provides that court is the exclusive forum for such action. Because there is no agreement to arbitrate this dispute, Defendant’s motion must be denied in its entirety. II. DEFENDANTS’ ARBITRATION AGREEMENT EXCLUDES PLAINTIFF’S CLAIMS FROM ARBITRATION Defendant’s arbitration agreement includes an unenforceable waiver of class 0r collective actions: 4. flag; 5mg“ Waiven You and Company agree m bring any covered claim or dispute in arbitration nnly, and um as a class DI collective anion; you and Eampany waive any right fur u dispute o'r claim tn b: brought, hemd, nr decided as a class 0r collective action, and the Arbilmmr Ems no pawer at authoriiy 10 preside (war a aim or collective actian (“Class Aminn Waiver"). In the event a final judicial deiemflnaxiun is made that. The Class Act'mn Waiver is unenforceable curd that a class or colluclivr: action may pl'ncted notwithsmnding Elm existence of this Agreement. Lhe Arbitramr is neverthfilcss without authority lo preside aver a class ur collective actiun and any class m- mllmive action must be brought in u wurt of competent jurisdiction. See Declaration of Megan Uemura (“Uemura Decl.”), fl 10, Exhibit B. It includes a poison pill provision that provides that if its waiver ofclass 0r collective actions is deemed to be unenforceable, the dispute cannot be arbitrated and a court of law shall be the exclusive forum for resolving such disputes. Id. Defendant’s arbitration agreement also specifically includes “any claim on your own behalf as an aggrieved employee. . .” Id. PAGA “authorizes an employee t0 bring an action for civil penalties 0n behalf 0f the state against his or her employer for Labor Code Violations committed against the employee and fellow employees, with most 0f the proceeds 0f that litigation going t0 the state.” Sakkab v. Luxottica Retail N. Am, Ina, 803 F.3d 425, 429 (9th Cir. 2015) (citing Iskanian v. CLS Transport. Los Angeles, LLC, 59 Cal.4th 348, 360 (2014). It is well-settled that preemptive PAGA waivers are unenforceable. Indeed, in Sakkab, the Ninth Circuit held that pre-dispute agreements t0 waive -1- OPPOSITION TO MOTION TO COMPEL ARBITRATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PAGA claims are unenforceable for two reasons: (1) California Civil Code §1668 states that agreement exculpating a party for Violations of the law are enforceable; and (2) under California Civil Code § 3513, a law established for a public reason may not be contravened by private agreement. Id. Describing the California Supreme Court’s reasoning in Iskanian, the Ninth Circuit stated that “agreements requiring the waiver 0f PAGA rights would harm the state’s interests in enforcing the Labor Code and in receiving the proceeds 0f civil penalties used to deter Violations.” Id. (internal citations omitted). This applies to agreements waiving the right to bring “representative” PAGA claims (claims seeking penalties for Labor Code Violations affected other employees) as well. Id. (internal citations omitted) Defendant’s arbitration agreement’s class action waiver constitutes an impermissible pre- dispute agreement t0 waive PAGA claims, rendering the waiver void and unenforceable under Sakkab and Iskanian. See, e.g., Williams v. Superior Court, 237 Cal.App.4th 642, 647, fn.3 (2015); Securitas Security Services USA, Inc. v. Superior Court, 234 Cal.App.4th 1109, 1121 (2015); Franco v. Arakelian Enterprises, Ina, 234 Ca1.App.4th 947, 956 (2015). When combined With the poison pill provision, any class 0r collective action must be litigated in court, and, according t0 Defendant’s own words, the arbitrator has not jurisdiction over such claims. Defendant may try to argue that the class or collective action waiver does not encompass PAGA. However, courts have found that language barring class or collective actions include PAGA actions. See, e.g., Davis v. TWC Dealer Group, Ina, 41 Ca1.App.5th 662, 675 (“Fourth is the presence of provisions that: (1) ‘the arbitrator will hear only . . . individual claims and does not have the authority to fashion a proceeding as a class or collective action . . .’, and (2) ‘the Company has the right to defeat any attempt by [the Davises] to file 0r join other employees in a class, collective or joint action 0r arbitration . . .’ Such broad language could be read t0 preclude PAGA representative actions, a Violation 0f public policy”). /// /// /// /// -2- OPPOSITION TO MOTION TO COMPEL ARBITRATION OO\IO\UI-I>UJN KO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. CONCLUSION There is no agreement t0 arbitrate this dispute, and therefore Defendant’s motion must be denied in its entirety. Dated: February 1, 2021 AEGIS LAW FIRM, PC ~#Zfl Fawn Ffiekam Attorneys for Plaintiff Araceli Sanchez -3- OPPOSITION TO MOTION TO COMPEL ARBITRATION \OOOQONUI-PUJNH NNNNNNNNNt-I-Ht-I-Ht-I-Ht- OONQM$UJNHOKOOOQON£ll¥WNHO CERTIFICATE OF SERVICE I, the undersigned, am employed in the County 0f Orange, State 0f California. I am over the age of 18 and not a party t0 the Within action; am employed With Aegis Law Firm PC and my business address is 9811 Irvine Center Drive, Suite 100, Irvine, California 92618. On February 2, 2021, I served the foregoing document entitled: OPPOSITION TO MOTION TO COMPEL ARBITRATION AND STAY ACTION on all the appearing and/or interested parties in this action by deliveringD the original a true copy thereof 0n the party(ies) addressed below as follows: Kevin D. Reese, (SBN: 172992) Janelle J. Sahouria, (SBN: 253699) JACKSON LEWIS P.C. 50 California St. 9th Floor San Francisco, CA 941 11 Telephone: (415) 394-9400 Facsimile: (415) 394-9401 Kevin.Reese@JacksonLeWis.com Janelle.Sahouria@JacksonLewis.com Attorneysfor Defendant: EMERALD TEXTILES SERVICES, SAN DIEGO, LLC and EMERALD TEXTILES SERVICES, NORTHERN CALIFORNIA, LLC D /// (BY MAIL) I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service 0n that same day With postage thereon fully prepaid at Irvine, California in the ordinary course of business. I am aware that 0n motion 0f the party served, service is presumed invalid if postage cancellation date or postage meter date is more than one day after date of deposit for mailing this affidavit. (Cal Code Civ. Proc. § 1013(a); Fed. R. Civ. Proc. 5(a); Fed. R. Civ. Proc. 5(0).) (BY OVERNIGHT MAIL) I am personally and readily familiar With the business practice of Aegis Law Firm PC for collection and processing correspondence for overnight delivery, and I caused such document(s) described herein t0 be deposited for delivery to a facility regularly maintained Federal Express for overnight delivery. (Cal Code Civ. Proc. § 1013(0); Fed. R. Civ. Proc. 5(0).) (BY ELECTRONIC TRANSMISSION) I caused said document(s) to be served Via electronic transmission Via the above listed email addresses on the date below. (Cal. Code Civ. Proc. § 1010.6(6); Fed. R. Civ. Proc. 5(b)(2)(E); Fed. R. Civ. Proc. 5(b)(3).) (BY PERSONAL SERVICE) I delivered the foregoing document by hand delivery to the addressed named above. (Cal Code Civ. Proc. § 1011; Fed. R. Civ. Proc. 5(b)(2)(A)-) CERTIFICATE 0F SERVICE \OOOQONUI-PUJNH NNNNNNNNNt-I-Ht-I-Ht-I-Ht- OONQM$UJNHOKOOOQONMJ>WNHO I declare under penalty of peljury under the laws 0f the State of California that the foregoing is true and correct. . Executed 0n February 2, 2021, at Irvine, California. d ndrea Drocco -2- CERTIFICATE OF SERVICE