DeclarationCal. Super. - 6th Dist.April 5, 20211o 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLEORWMEauegtfnaN 7m F oor San Jose, CA 95113.2431 408.998.4150 21 CV3791 47 Santa Clara - Civil ANDREW M. SPURCHISE, Bar No. 245998 aspurchise@littler.com LITTLER MENDELSON P.C. 900 3rd Avenue, 8th Floor New York, NY 10022-3298 Telephone: 212.583.9600 Fax No.2 212.832.2719 ELISA NADEAU, Bar N0. 199000 enadeau@littler.com LINDA NGUYEN BOLLINGER, Bar N0. 2895 1 5 lbollinger@littler.com ALEC S. DIMARIO, Bar N0. 309811 adimario@littler.com LITTLER MENDELSON, P.C. 50 W. San Fernando, 7th Floor San Jose, CA 951 13.2431 Telephone: 408.998.4150 Fax No.2 408.288.5686 Attorneys for Defendant GARUDA LABS, INC. dba INSTAWORK Electronically Filed by Superior Court of CA, County of Santa Clara, on 9/10/2021 4:10 PM Reviewed By: R. Walker Case #21 CV379147 Envelope: 7244811 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA DEANGELO DANIELS, individually, and 0n behalf of other members 0f the general public similarly situated; Plaintiff, V. GARUDA LABS, INC dba INSTAWORK, an unknown business entity; and DOES 1 through 100, inclusive, Defendants. Case No. 2 1CV379 147 Honorable Patricia M. Lucas Department 3 DECLARATION OF ALEC S. DIMARIO IN SUPPORT OF DEFENDANT GARUDA LABS, INC. DBA INSTAWORK'S MOTION TO COMPEL ARBITRATION, STRIKE CLASS ALLEGATIONS, AND STAY PROCEEDINGS Hearing Date: October 27, 2021 Hearting Time: 1:30 pm Department: 3 Complaint filed: April 5, 2021 Case No. 21CV379147 DIMARIO DECLARATION IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL ARBITRATION, STRIKE CLASS ALLEGATIONS, AND STAY PROCEEDINGS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON P.C. Attorneys at Law 7U! Fluol San Jose, CA 951131431 408.998.4150 I, Alec S. DiMario, declare as follows: 1. I am an attorney with the law firm of Littler Mendelson, P.C., attorneys 0f record for Defendant Garuda Labs, Inc. dba Instawork (“Defendant”) in this action. I have personal knowledge of the facts set forth below and, if called as a witness, I could and would competently testify thereto. 2. Before filing the instant motion, 0n September 7, 2021, I sent an email to Plaintiff” s attorneys t0 commence meet and confer discussions in a good-faith effort t0 eliminate the necessity of a hearing on Defendant’s instant motion to compel arbitration based on the Arbitration Provision in the Contractor Services Agreement entered into by Plaintiff 0n April 2, 2021. I requested a response to the issues raised by September 9, 2021. Plaintiff’ s counsel replied they would respond by close of business September 10, 2021. I alerted Plaintiff’s counsel that the motion was due 0n September 10, 2021, so we would be filing it prior t0 close of business to ensure timely filing. A true and correct copy of the email chain With Plaintiff s attorneys is attached hereto as Exhibit A. I declare under penalty ofperjury under the laws ofthe State ofCalifornia that the foregoing is true and correct. Executed this 10th day 0f September, 2021, at Berkeley, California. IMESW Alec S. DiMario 2 Case No. 21CV379147 DIMARIO DECLARATION IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL ARBITRATION, STRIKE CLASS ALLEGATIONS, AND STAY PROCEEDINGS EXHIBIT A From: Qngrio. Alec To: Arm n M r n Cc: J_omn h h; Wwwin||' ti - m;WW;WWW;Wm; ovsanna@ca|ljustice.com; Spurchise. Andrew; Nadeau. Elisa Subject: RE: Daniels v. Garuda Labs, Inc. dba Instawork - Meet and Confer re Motions to Compel Arbitration Date: Friday, September 10, 2021 9:10:30 AM Attachments: image001.pngMm Arman, as today is Defendant’s filing deadline, we cannot wait until the close of business today for a response. We will review that response once received; however, in the meantime, we intend to proceed with filing each motion to compel arbitration. The motion(s) may be later taken off calendar, as appropriate. Kindly confirm availability on October 27, 2021. Alec DiMario Associate 408.795.3473 direct, 408.709.6520 mobile ADilVIario@|itt|er.com Labor & Employment Law Solutions | Local Everywhere 50 West San Fernando Street, 7th Floor, San Jose, CA 95113-2434 From: Arman Marukyan Sent: Thursday, September 9, 2021 12:51 PM To: DiMario, Alec Cc: Joanna Ghosh ; edwin@ca|ljustice.com; arby@ca|ljustice.com; elizabeth@ca|Ijustice.com; sarin@ca|ljustice.com; ovsanna@ca|ljustice.com; Spurchise, Andrew ; Nadeau, Elisa Subject: Re: Daniels v. Garuda Labs, Inc. dba Instawork - Meet and Confer re Motions to Compel Arbitration Dear Alec, We are reviewing the documents you sent over. We will respond by close of business tomorrow. With kind regards, Arman Marukyan The information contained in this e-mail is legally privileged and confidential information intended only for the use of the individual or entity named above. If the receiver of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this email message is strictly prohibited and may violate the legal rights of others. If you have received this message in error, please immediately notify the sender by reply email or telephone, and delete it from your system. Thank you. On Thu, Sep 9, 2021 at 12:43 PM DilVlario, Alec wrote: Joanna, Since we have not received a response from your office regarding our anticipated motion to compel arbitration in the Daniels Class Action or the Daniels PAGA Action, we must assume that Mr. Daniels intends to oppose each motion. We will also assume your availability on October 27, 2021, at 1:30pm., and will set the hearing on the motions for that date unless we hear otherwise by 5:00pm. today. Thank you, Alec Alec DiMario Associate 408.795.3473 direct, 408.709.6520 mobile E H l . El. Labor & Employment Law Solutions | Local Everywhere 50 West San Fernando Street, 7th Floor, San Jose, CA 95113-2434 From: DiMario, Alec Sent: Wednesday, September 8, 2021 11:10 AM To: Joanna Ghosh Cc: edwin@call'ustice.com; arby@ca|l'ustice.com; elizabeth@galliugtiggggm; Arman Marukyan <§rman@gal|‘;4§:ige.ggm>; garin@gall'g§1ige.ggm; nganna@gall'gg:ige.ggm; Spurchise, Andrew ; Nadeau, Elisa Subject: RE: Daniels v. Garuda Labs, Inc. dba Instawork - Meet and Confer re Motions to Compel Arbitration Joanna, Regarding our anticipated motion to compel Mr. Daniels’s PAGA claims to arbitration, we are not relying on an agreement between the State of California and Instawork. Rather, we are relying on Mr. Daniels’s agreement not to bring PAGA claims against Instawork and to individually arbitrate any and all disputes, regarding his employment relationship with Instawork, including, as specifically called out in the agreement, his status as an independent contractor. As t0 Mr. Daniels’s class action, do you intend to contest the enforceability of the arbitration provision, and if so, on what basis? Thank you, Alec Alec DiMario Associate 408.795.3473 direct, 408.709.6520 mobile ADiMariQ@|i:Iler.ng Labor & Employment Law Solutions | Local Everywhere 50 West San Fernando Street, 7th Floor, San Jose, CA 95113-2434 From: Joanna Ghosh <‘ganna@g§||'|g§:igg.ggm> Sent: Tuesday, September 7, 2021 12:07 PM To: DiMario, Alec Cc: edwin@ca|l'ustice.com; arby@ca|l'ustice.com; elizabeth@call'ustice.com; Arman Marukyan ; sarin@ca|l'ustice.com; ovsanna@ca|l'ustice.com; Spurchise, Andrew ; Nadeau, Elisa Subject: Re: Daniels v. Garuda Labs, Inc. dba Instawork - Meet and Confer re Motions to Compel Arbitration Dear Counsel, Thanks for reaching out. Please provide us with any and all documentation demonstrating that your client and the State of California voluntarily entered into an agreement to arbitrate claims for civil penalties in connection with the California Labor Code. lam currently out of the country; there may be additional documents that we require to consider your request. Please provide these so that we can consider your proposal. With kind regards, Joanna Ghosh The information contained in this e-mail is legally privileged and confidential information intended only for the use of the individual or entity named above. If the receiver of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this email message is strictly prohibited and may violate the legal rights of others. If you have received this message in error, please immediately notify the sender by reply email or telephone, and delete it from your system. Thank you. On Sep 7, 2021, at 6:16 PM, DiMario, Alec wrote: Dear Counsel, We write to commence meet and confer discussions in anticipation of filing motions to compel arbitration in each of the related matters of Daniels v. Garuda Labs, Inc. dba Instawork, Santa Clara Superior Court Case No. 21CV379147 (the ”Daniels Class Action”), and Daniels v. Garuda Labs, Inc. dba Instawork, Santa Clara Superior Court Case No. 21CV383683 (the ”Daniels PAGA Action”). We believe that motion practice can be avoided and have attached the relevant Contractor Services Agreement (”CSA”) entered into by Mr. Daniels, as well as the electronic record showing that Mr. Daniels entered into such agreement on April 2, 2021. The relevant arbitration provision of the operative 4-2-21 CSA may be found at Section 11 of the CSA. In addition to moving to compel all claims in the Daniels Class Action to arbitration, we intend to move to compel Mr. Daniels’s PAGA claims to arbitration because the arbitration provision in the CSA requires arbitration of any dispute concerning the status of Mr. Daniels as an independent contractor in a PAGA case brought by Mr. Daniels against Instawork. Specifically, Section 11.2 of the 4-2-21 CSA states that Mr. Daniels agrees to arbitrate disputes over his status as a worker: ”Instawork and You expressly agree that the FAA shall . . . apply to any and all disputes between the Parties, including but not limited to those arising out of or relating t0 . . . Your classification status as a worker or service provider (e.g., an alleged employment relationship). . . Further, Section 11.7 of the 4-2-21 CSA states that ”for any claim brought on a private attorneys general basis, including under the California PAGA, both you and Instawork agree that any such dispute shall be resolved in arbitration 0n an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or representative proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, 'Representative PAGA Action Waiver’)." Consequently, we request that Mr. Daniels dismiss the Daniels Class Action and Daniels PAGA Action. We would also like to bring to your attention that there is now a pending petition for a writ of certiorari to the U.S. Supreme Court regarding whether the lskanian rule is preempted: whether the FAA requires enforcement of a bilateral arbitration agreement providing that an employee cannot raise representative claims, including under the California Private Attorneys General Act. See htt s: www.su remecourt. ov DocketPDF 20 20- 73 178703 20210510123129707_2021-OS-10%2 Vik' °020 ' i °020 ' If you have any legal authority that you believe supports your position, please forward it for our review. We are also happy to set up a time to discuss this matter by telephone. Thank you, Alec Alec DiMario Associate 408.795.3473 direct, 408.709.6520 mobile ADiMario@|itt|er.com Labor & Employment Law Solutions | Local Everywhere 50 West San Fernando Street, 7th Floor, San Jose, CA 95113-2434 This email may contain confidential and privileged material for the sole use of the intended recipient(s). Any review, use, distribution or disclosure by others is strictly prohibited. If you are not the intended recipient (or authorized t0 receive for the recipient), please contact the sender by reply email and delete all copies of this message. Littler Mendelson, P.C. is part of the international legal practice Littler Global, which operates worldwide through a number of separate legal entities. Please visit www.lifller.ggm for more information. <2021.04.02 - Daniels, DeAngeIo - 2nd CSA 4836-2802-9174 1.pdf> <2021.08.11 - Daniels, DeAngelo - Service Agreement Records 4826-0461-8998 1.pdf> This email may contain confidential and privileged material for the sole use of the intended recipient(s). Any review, use, distribution or disclosure by others is strictly prohibited. If you are not the intended recipient (or authorized to receive for the recipient), please contact the sender by reply email and delete all copies of this message. 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