Marie Aguilera vs. Dhrma Bhakti, Inc.

Opposition

Cal. Super. - 4th Dist.October 20, 2015

NO 0 N N N hn a 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THE LAL LAW FIRM Hari S. Lal, Esq. [SBN: 141031] Victor Giongco, Esq. [SBN: 231481] 1020 South Anaheim Boulevard # 202 Anaheim, CA 92805 Telephone: (714) 635-1646 Facsimile: (714) 635-2457 Attorneys for Defendants, DHRMA BHAKTT INC. ELECTRONICALLY FILED Superior Court of California, County of Orange 11/30/2017 at 12:41:00 PM Clerk of the Superior Court By Angelina Mguyen-Do, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ORANGE MARIE AGUILERA, an individual, Plaintiff, VS. DHRMA BHAKTI, INC., a California Corporation, and DOES 1 to 100, inclusive, Defendants. N a ? N a e N s ’ N a a r “ n e ? “ a e ? “ a a “ n a ? a e a a a m e ee a a n t “ a e w ? “ t r “ a t “ u g ” “ a “ m e ? “ a s ” “ n a - CASE NO: 30-2015-00815672-CU-OE-CJC [Assigned for all purposes to the Honorable Judge Randall J. Sherman, Dept. C-24] DEFENDANT DHRMA BHAKTI’S OPPOSITION TO PLAINTIFF'S MOTION TO VACATE ARBITRATION ORDER ; MEMORANDUM OF POINTS AND AUTHORITIES; SUPPORTING DECLARATION OF HARI S. LAL, ESQ DECLARATION OF MAHESH PATEL; EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MICHAEL DESJARDIN ESQ. Date: December 14th, 2017 Time: 1:30pm Dept: C-24 TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEY OF RECORD: PLEASE TAKE NOTICE that on DECEMBER 14", 2017 at 1:30pm, or as soon thereafter as the matter can be heard in Department C-24 of the Orange County Superior Court, located at 700 Civic Center Drive West, Santa Ana, California, Defendant, DHRMA BHAKTI, i DEFENDANT DHRMA BHAKTI’S OPPOSITION TO PLAINTIFF'S MOTION TO VACATE ARBITRATION ORDER Oo ® Na 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 INC., will oppose plaintiff's motion to vacate this court’s order to compel the parties to binding arbitration. This opposition will be based upon Code of Civil Procedure § 1281.2, 1281.3 and 1281.6 and C.C.P.§1010 and other pertinent arbitration agreement, the notice of motion and motion, the memorandum of points and authorities and declaration of Hari S. Lal in support thereof, the pleadings and records on file herein, and upon such other oral and documentary evidence as may be presented at the hearing of this motion. Defendant requests that this court to deny the motion to vacate its order and grant fees and costs to defendant under C.C.P. §1010. THE LAL LAW FIRM Fo tfees Dated: November 30™ 2017 By: Hari S. Lal, Esq. ii DEFENDANT DHRMA BHAKTI’S OPPOSITION TO PLAINTIFF'S MOTION TO VACATE ARBITRATION ORDER A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS L IL. III. IV. INTRODUCTION AND STATEMENT OF FACTS .....oooiiiiiiiiiineececeeeee 1 STATEMENT OF BACTS : ic ccnucavsuesn so aunuses acuss ann scssnss suns os 555650 55505565 5505558 505545 48 S555 55555 2 ARGUMENT AND POINTS AND AUTHORITIES ......ccccoooiiiiiiinieeecececnee e 4 A. PLAINTIFF'S MOTION FOR RECONSIDERATION IS UIINTIMELY cs 5 5 mm 0.55 aims «5 5 commas. onus. on a0 060055556 540550858 50565.58 5AR5541.5556 545,55 5558555 S555 50 SHE05 85 SHVAV3S 4 B. THE ARBITRATION AGREEMENT IS ENFORCEABLE AND NOT ..................... 5 UNCONSIONABLE. octet eects eects see eects sae saree estes sree eae 5 C. THE ARBITRATOR CAN DECIDE THE ISSUE OF UNCONSCIONABILTY ....... 8 D. DEFENDANT DHRMA DID NOT WAIVE ITS RIGHT TO ARBITRATION... coi eee eter see seers sae steer estes sree eae 9 CONCLUSION .......ctiiiiitiitiitct cece see se e ee sae sae sees ee ee sae sree 11 il DEFENDANT DHRMA BHAKTI’S OPPOSITION TO PLAINTIFF’S MOTION TO VACATE ARBITRATION ORDER ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cases Arbitech, LLC v. Hackney (Cal. Ct. App., Sept. 28, 2017, No. G053744) 2017 WL A290T0T ..eeeeeeeeeeeeeeeeeeteeeeeeeteeehteeabeeeeet eee hte sabe ant e tee eh e sabe e nee e ta ehte sabe enneeenneas 5,11 Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 1 BY) cnsosisvsanssonessesos eo SS 0 A SS HS AB A SB ASS 1 AT & T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 340.) ..cccccciiiieeiiiiieeecieie cec evee 5 Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1243, 200 Cal.Rptr.3d 7, 367 PLB 6 eeeae eee eet e sate eae eee eb ee hte ea beast eet ae ehte este e nee eseeehae en 6 Blake v. Ecker [2001 Jand Phillips v. Sprint PCS (2012.....cccuvviieeeiieieeeeee ee eee eeve ns 4 Bruni v. Didion (2008) 160 Cal.App.4th 1272, 73 Cal.Rptr.3d 395 .....ccooviiiiiiiiee eee, 8 Gibble v. Car-Lene Research, INC. (1998) .........uuvereeiiiieiieiiiieeeee ee e eee ae eee vee 1 Gloster v. Sonic Automotive, Inc. (2014) 226 Cal. App.4th 438, 171 Cal.Rptr.3d B48 eee eee eee eet teehee atte abe ete eh tees teen beans eet ae eh be eabe ante e tee eh be enbe ante e tee ehbe sabe ennes 2 Grand Prospect Partners, L.P. v. Ross Dress for Less, Inc. (2015) 232 Cal.App.4th 1332, 1348, 182 Cal RPLI.3A 235... eects eee teste e sbeebs sateen sees see saaa eas 7 Hoover v. American Income Life Ins. Co. (2012) 206 Cal. App.4th 1193, 1204. .......cocvverrvieeneenee. 10 Kulchar v. Kulchar (1969) 1 Cal.3d 467, 470 .........couuuereeeeeeeeeeeeeeiieeeeeeeeeeeeceiireaeee s es sseir va as e e ns 1 Mercuro v. Sup.Ct. (Countrywide Secur. Corp.) (2002) 96 Cal. App.4th 167 ......ccovuvivvivennneennnne. 5 Ontiveros v. DHL Exp. (USA), Inc. (2008) 164 Cal. App.4th 494, 507 [79 CaALRPIE.IA 471, 482] eect eee eters ete sabe e teeta sbte sateen sees bee este esse anseeeseessae ens 9 OTO, L.L.C. v. Kho (2017) 14 Cal. App.5th 691, 702 [222 Cal.Rptr.3d 506, 511...........cc.......... 1,6 Phillips v. Sprint PCS (2012) 209 Cal. App.4th 758 [147 Cal.Rptr.3d 274 .......cevoveviieiecieeeenen, 4 Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Caldth 223, 247 eee eee eee eee eee eee eee eres sera e ear e atta eerie ae etait ae etre ae eabe ae etre ae erreeeeaaeaenn 1 Sacramento v. Razon-Chua (Cal. Ct. App., Oct. 31, 2017, No. B276978) 2017 WL Er: cmon A SS OB AR NAS 1 Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 190 Cal.Rptr.3d B12, 353 P.3A TAL eee eee eee eee erate ete eras erase sata eearaa ee raa aes rae ae eaae ee erae ee eareeas 1,6 Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1143-1145, 163 Cal.Rptr.3d 269, 311 P.3d 184... eee eee teste sate sabes sbee sna ees 5 St. Agnes [Medical Center v. Pacificare of California (2003) 31 Cal.4th 1187.........ccccvvvvvvenneee. 10 iv DEFENDANT DHRMA BHAKTT’S OPPOSITION TO PLAINTIFF'S MOTION TO VACATE ARBITRATION ORDER A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Wells Fargo Bank, N.A. v. Drumgo (Cal. Ct. App., June 19, 2015, No. B255831) 2015 WL 3824123 eectsshee sae shee saree 1 Statutes CCP. STO08......c. ieee eae sae sae ee sae shee sbeebs 4 CCP: §1UT0 rs cuvusmmnuonsusmsenssmmmanonsvmsn sss es sve a5sssvs ss seas sus WEES L445 (05 SWERESH SHAT AUSRAVNEESH SUH SHSRIRREUAES i, 1 Civ.Code, § 1670.5 o.oo eee ses L,5 Other Authorities Federal Arbitration Act (9 U.S.C. § Le. eee e eee rr ease eens 2 \% DEFENDANT DHRMA BHAKTI’S OPPOSITION TO PLAINTIFF’S MOTION TO VACATE ARBITRATION ORDER A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND STATEMENT OF FACTS Firstly, Plaintiff’s motion to reconsider the ORDER made by this court on February 2". 2017 is not only untimely under C.C.P. §1010 but also plaintiff as the moving party has failed to demonstrate diligence in seeking to [vacate the order or judgment]’. (Gibble v. Car- Lene Research, Inc. (1998) Wells Fargo Bank, N.A. v. Drumgo (Cal. Ct. App., June 19, 2015, No. B255831) 2015 WL 3824123. However, the courts’ inherent power and or equitable power can only be exercised when the circumstances of the case are sufficient to overcome the strong policy favoring the finality of its Order or Judgments. (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 470 (Kulchar );(Sacramento v. Razon-Chua (Cal. Ct. App., Oct. 31, 2017, No. B276978) 2017 WL 4937714). Secondly, the arbitration agreement between the parties is neither procedurally nor substantively unconscionable. [See Exhibit A- Employee Manuel - Arbitration Agreement; Attached to the Declaration of Mahesh Patel]. ((Civ.Code, § 1670.5; Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114 (Armendariz ) and plaintiff as the party resisting arbitration has failed to bear its burden of proving unconscionability. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 247.) “The prevailing view is that procedural and substantive unconscionability must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability.” [Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 190 Cal.Rptr.3d 812, 353 P.3d 741 (Sanchez): [OTO, L.L.C. v. Kho (2017) 14 Cal.App.5th 691, 702 [222 Cal.Rptr.3d 506, 511], review filed (Sept. 29, 2017). Plaintiff has failed to provide any factual evidence to show the presence of 1 DEFENDANT DHRMA BHAKTT’S OPPOSITION TO PLAINTIFF'S MOTION TO VACATE ARBITRATION ORDER A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 both the above referenced elements for the court to refuse to enforce the agreement. Lastly, defendant Dhrma has not waived its right to arbitration by its contention that once ordered to arbitration, the arbitrator has the right to decide costs and fees under the statute and pertinent FEHA claims in California.[See Exhibit F- Correspondence from Defendant Counsel LAL.] “ “State law, like the [Federal Arbitration Act (9 U.S.C. § 1 et seq.)], reflects a strong policy favoring arbitration agreements and requires close judicial scrutiny of waiver claims. Although a court may deny a petition to compel arbitration on the ground of waiver, waivers are not to be lightly inferred and the party seeking to establish a waiver bears a heavy burden of proof’. [Gloster v. Sonic Automotive, Inc. (2014) 226 Cal.App.4th 438, 171 Cal.Rptr.3d 648]. This court should note that after much prolonged hearing and post discovery and deposition of plaintiff Marie Aguilera MD, PhD, this court on February 2™, 2017 made an ORDER to grant defendants to compel arbitration. As such plaintiff motion is untimely since it is brought almost 270 days later. II. STATEMENT OF FACTS Plaintiff, Marie Aguilera ‘Aguilera’ is a very sophisticated plaintiff, since she not only claims to be Medical Doctor (MD) and a member of Fellow of College of Physicians ( FCAP) and a Registered Nurse (BSRN) but also a Ph.D in Molecular biology from USC- and yet seeking for employment at ARCO-AM- PM as cashier and making a claim for sexual harassment for millions of dollars, especially when she was dating the manager for a period of over six months with ‘various types’ of consensual relationship!. [See Exhibit K- Employ Application and Certification attached to the Opposition]. Plaintiff MARIE AGUILERA, hereafter ‘AGUILERA or Plaintiff” contends that the Arbitration Agreement between herself 2 DEFENDANT DHRMA BHAKTT’S OPPOSITION TO PLAINTIFF'S MOTION TO VACATE ARBITRATION ORDER ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and defendant DHRMA BHAKTI, INC., hereafter DHRMA or Defendant is unenforceable because AGUILERA'S assent to the agreement was allegedly the result of fraud or duress, and because the Arbitration Agreement was unconscionable- a ridiculous allegation especially when she signed a barrage of documents with identical signatures and perjured herself in her declaration. Upon filing the lawsuit Aguilera made false declaration to this court that she did not sign the arbitration but failed to advise the court that she gave consent to her family members to sign the employee manual on behalf of her. [See Exhibit L-Decl of Aguilera attached to Opposition]. After two sessions of examining her under oath at her deposition, in September 2016, she finally admitted that she gave consent to her daughter and other persons to sign the arbitration agreement.[see Exhibit M - Excerpts of Plaintiff” Depo Transcrpt]; p;166, Lines 5-25; p; 167, lines 8-13; p; 168, lines 5-8 and 169, lines 4-16 ]. As such Aguilera’s veracity and truthfulness including her motives are seriously in question and she lacks total credibility!! Both plaintiff and defendant agreed to mutually resolve all their disputes through binding arbitration with AMERICAN ARBITRATION ASSOCIATION services. Employee Handbook Page 29, paragraph 1 states in pertinent part as follows; “Binding Arbitration Agreement- ‘Any controversy, claim, problem, complaint, misunderstanding or dispute that may arise concerning any aspect of your employment including any disputes arising out of or based upon any state or federal statue, law or act applicable to your employment, and including any dispute concerning a claim that the provisions of the Policy Manual have been violated shall be submitted to binding arbitration in accordance with the rules of the American Arbitration Association”. [also See Exhibit A; Page 29]. Defendant executed a separate Binding Agreement to resolve any and all controversies regarding any dispute which may be work related. (see Exhibit A -attached to the Declaration 3 DEFENDANT DHRMA BHAKTT’S OPPOSITION TO PLAINTIFF'S MOTION TO VACATE ARBITRATION ORDER ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of Mahesh Patel]. Defendant has made a legitimate effort to meet and confer with defendant but has not been successful in reaching a compromise. Please see Exhibits B-J attached to Declaration of Hari S. Lal, Esq. III. ARGUMENT AND POINTS AND AUTHORITIES A. PLAINTIFF'S MOTION FOR RECONSIDERATION IS UNTIMELY Plaintiff contends that the trial court retains power to hear a motion for reconsideration of its order compelling or denying arbitration in appropriate circumstances (e.g., where there is a change in law). California Code of Civil Procedure § 1008 [see PIntf’s Moving Papers;p4:92; Ln 8-11]. C.C.P §1008 states in pertinent part as follows; (a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. Code Civ. Proc., § 1008 (d) A violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.7. In addition, an order made contrary to this section may be revoked by the judge or commissioner who made it, or vacated by a judge of the court in which the action or proceeding is pending. Code Civ. Proc., § 1008 Plaintiff’s reliance on Blake v. Ecker [2001 ]and Phillips v. Sprint PCS (2012) is totally misplaced and erroneous since plaintiff has failed to show new or different facts, circumstances, or change in law since February 2017. In Phillips the court ruled Trial court acted within its discretion in granting reconsideration of its prior order denying cellular telephone service provider's motion to compel bilateral arbitration of subscriber's class claims, since the change in law based on United States Supreme Court's interpretation of the Federal Arbitration Act (FAA) in AT & T Mobility LLC v. Concepcion changed the legal landscape and undermined the foundation of the trial court's earlier order denying arbitration. [Phillips v. Sprint PCS (2012) 209 Cal. App.4th 758 [147 Cal.Rptr.3d 274; [Blake v. Ecker (2001) 93 4 DEFENDANT DHRMA BHAKTT’S OPPOSITION TO PLAINTIFF'S MOTION TO VACATE ARBITRATION ORDER A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cal.App.4th 728, 739, 113 Cal.Rptr.2d 422].Such is not the case here and there has not been any change in Law or case law arising from the legislature or the State Supreme Court. Defendant is entitled cost and fees as per C.C.P. §1008 if plaintiff fails to prevail on its motion. B. THE ARBITRATION AGREEMENT IS ENFORCEABLE AND NOT UNCONSCIONABLE Plaintiff contends that arbitration agreement or clause cannot be enforced where it is the result of unconscionability, both procedural and substantive and relies upon Armendariz v Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114, Mercuro v. Sup.Ct. (Countrywide Secur. Corp.) (2002) 96 Cal.App.4th 167. Plaintiff has failed to meet her burden of proof to show which term or language in the arbitration agreement constitutes substantive and procedural unconscionability. An evaluation of unconscionability is highly dependent on context. “The test is not simple, nor can it be mechanically applied.” The doctrine often requires inquiry into the “commercial setting, purpose, and effect” of the contract or contract provision. (Civ.Code, § 1670.5, subd. (b); [Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1143-1145, 163 Cal .Rptr.3d 269, 311 P.3d 184]. The court may enforce the remainder of the contract without the unconscionable clause or “limit the application of any unconscionable clause as to avoid any unconscionable result.” (Ibid.) Sometimes a court can cure unconscionability through severance, reformation, or augmentation. (Armendarz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 125, disapproved on another ground in AT & T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 340.) Arbitech, LLC v. Hackney (Cal. Ct. App., Sept. 28, 2017, No. G053744) 2017 WL 4296101. 5 DEFENDANT DHRMA BHAKTT’S OPPOSITION TO PLAINTIFF'S MOTION TO VACATE ARBITRATION ORDER ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Supreme Court summarized the doctrine of unconscionability in the context of arbitration agreements in Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 190 Cal.Rptr.3d 812, 353 P.3d 741 (Sanchez): [OTO, L.L.C. v. Kho (2017) 14 Cal.App.5th 691, 702 [222 Cal.Rptr.3d 506, 511], review filed (Sept. 29, 2017). As that formulation implicitly recognizes, the doctrine of unconscionability has both a procedural and a substantive element, the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one-sided results.” ' ” (Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1243, 200 Cal.Rptr.3d 7, 367 P.3d 6 (Baltazar).) [Baxter v. Genworth North America Corporation (Cal. Ct. App. 2017) 224 Cal .Rptr.3d 556] The prevailing view is that procedural and substantive unconscionability must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability.” [Sanchez, supra at page 902]. The Supreme Court in Sonic II stated ‘The unconscionability doctrine ensures that contracts, particularly contracts 66 ¢ Cc of adhesion, do not impose terms that have been variously described as overly harsh”, * 29 66 ¢ ‘unduly oppressive’ 7, “ ‘so one-sided as to “shock the conscience 2% 2 9 , or “unfairly one- sided”. (Sanchez, supra, 61 Cal.4th at pp. 910-911, 190 Cal.Rptr.3d 812, 353 P.3d 741.) apart from generalized and overbroad statements, plaintiff has failed to show which language in the agreement is ‘overly harsh or ‘unduly oppressive’. The arbitration is very simple and none of the language or the terms is oppressive or harsh that may shock the conscious. Per Se unconscionability was inconsistent with the United States Supreme Court's intervening decision in AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 131 S.Ct. 1740, 179 L.Ed.2d 742. Not all one-sided contract provisions are unconscionable. [Pinnacle Museum 6 DEFENDANT DHRMA BHAKTT’S OPPOSITION TO PLAINTIFF'S MOTION TO VACATE ARBITRATION ORDER ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Tower Assn. v. Pinnacle Market Development (2012) 55 Cal.4th 223, 246, 145 Cal.Rptr.3d 514] “A contract term is not substantively unconscionable when it merely gives one side a greater benefit....”. [Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 911 [190 Cal.Rptr.3d 812, 821, 353 P.3d 741, 749] “The circumstances relevant to establishing fairness and or oppression include, but are not limited to (1) the amount of time plaintiff Aguilera was given to consider the proposed contract. Plaintiff was given the agreement to take home for professional advice and consultation.[Decl of Mahesh Patel;p;1;3;7-9]. Plaintiff testified that she took it home and then authorized her family members to sign the agreement. [see Exhibit E - Excerpts of Plaintiff’s Depo. Transcrpt] (2) the amount and type of pressure exerted on the party to sign the proposed contract; (3) the length of the proposed contract and the length and complexity of the challenged provision; (4) the education and experience of the party; and (5) whether the party's review of the proposed contract was aided by an attorney.” (Grand Prospect Partners, L.P. v. Ross Dress for Less, Inc. (2015) 232 Cal.App.4th 1332, 1348, 182 Cal.Rptr.3d 235, fn. omitted.) ”. (Sanchez, supra, [2015] 61 Cal.4th at pp. 910-911, 190 Cal.Rptr.3d 812, 353 P.3d 741.). Aguilera holds herself out as a Medical Doctor [MD] along with a PhD in Microbiology from USC. Her education and training far exceeds a normal person in ‘Cashier’ industry and the agreement here is non complex but simple and straight forth.[Armendariz, supra, 24 Cal.4th at p. 117]. The arbitration agreement is a separate document consisting of approx. 4 pages which was separated from the Employee manual and signed at different times.[See Exhibit A; page29]. Plaintiff has failed to submit her declaration in support of the motion to set aside the court order. She has failed to carry her burden in showing that any pressure was put on her in signing the agreement. 7 DEFENDANT DHRMA BHAKTT’S OPPOSITION TO PLAINTIFF'S MOTION TO VACATE ARBITRATION ORDER A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Based on all of the above it is clear that the arbitration agreement was not unconscionable- it the agreement was procedurally fair and substantially non oppressive and did not shock the conscious. C. THE ARBITRATOR CAN DECIDE THE ISSUE OF UNCONSCIONABILTY The arbitration agreement clearly state that any controversy, claim, problem, complaint, misunderstanding or dispute that may arise concerning any aspect of your employment including any disputes arising out of or based upon any state or federal statue, law or act applicable to your employment, and including any dispute concerning a claim that the provisions of the Policy Manual have been violated shall be submitted to binding arbitration in accordance with the rules of the American Arbitration Association”. [also See Exhibit A;p29]. Defendant contends that since Aguilera has admitted to executing the agreement, the arbitrability issue is moot and the arbitrator can decide the unconscionability issues. In Bruni v. Didion (2008) 160 Cal.App.4th 1272, 73 Cal.Rptr.3d 395 (Bruni ), in which Division Two of the Fourth District addressed the question of what issues can be reserved to the arbitrator. The court noted that, “[r]egrettably, ‘arbitrability’ is an ambiguous term that can encompass multiple distinct concepts. It seems clear that the parties can agree to have ‘arbitrability’-in the sense of the scope of the arbitration provisions-decided by the arbitrator.” (Id. at p. 1286, 73 Cal.Rptr.3d 395.) The court continued: “But can the parties agree to have ‘arbitrability’-in the sense of whether the arbitration clause is valid, binding, and enforceable-decided by the arbitrator?” (Id. at p. 1287, 73 Cal.Rptr.3d 395.) The court went on to discuss this question generally, concluding that the precise nature of the claims must be examined before a determination can be made. (/bid.) For example, if the party 8 DEFENDANT DHRMA BHAKTT’S OPPOSITION TO PLAINTIFF'S MOTION TO VACATE ARBITRATION ORDER A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 resisting arbitration is not denying that it agreed to an arbitration provision, but instead is claiming the provision is unenforceable (e.g., due to illegality or fraud in the inducement), an arbitrator must decide the question. If, on the other hand, the party is claiming it never agreed to the arbitration provision at all, such is not the case here (e.g., due to forgery or fraud in the factum), a court must consider the claim. (/bid.) [Ontiveros v. DHL Exp. (USA), Inc. (2008) 164 Cal.App.4th 494, 507 [79 Cal.Rptr.3d 471, 482] The Bruni court then addressed the specific question of who should decide the plaintiffs’ unconscionability claim in light of the arbitration provisions empowering the arbitrator to determine arbitrability. The court stated: “We may assume, without deciding, that if plaintiffs were admitting that they knowingly agreed to the arbitration provisions, they could be required to arbitrate an unconscionability claim.” (Bruni, supra, 160 Cal. App.4th at p. 1290, 73 Cal.Rptr.3d 395.) [Ontiveros v. DHL Exp. (USA), Inc. (2008) 164 Cal. App.4th 494, 507-08 [79 Cal.Rptr.3d 471, 482-83] D. DEFENDANT DHRMA DID NOT WAIVE ITS RIGHT TO ARBITRATION Plaintiff Aguilera has admitted that she voluntarily signed the arbitration agreement without any undue influence. Plaintiff contends that Defendant has waived its right to arbitrate since it delayed in paying the fees for the arbitrator. Defendant contends that once the arbitrator decided the issue of unconscionability, the arbitrator could also rule on the issue of fees and costs. Having determined there existed an arbitration agreement; defendant contends that it has not waived the right to arbitrate. Code of Civil Procedure section 1281.2 provides in pertinent part: “On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such 9 DEFENDANT DHRMA BHAKTT’S OPPOSITION TO PLAINTIFF'S MOTION TO VACATE ARBITRATION ORDER ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: [9] (2) The right to compel arbitration has been waived by the petitioner ....” “ ‘No single test defines the conduct that will constitute waiver of an arbitration right. Rather, courts look to a number of factors to determine whether waiver has occurred” [St. Agnes [Medical Center v. Pacificare of California (2003) 31 Cal.4th 1187 (St. Agnes). In St. Agnes [Medical Center v. Pacificare of California (2003) 31 Cal.4th 1187 (St. Agnes) ], the Supreme Court confirmed that a court may consider the following six factors in assessing a waiver claim: “ © “(1) whether the party's actions are inconsistent with the right to arbitrate; (2) whether ‘the litigation machinery has been substantially invoked’ and the parties ‘were well into preparation of a lawsuit’ before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) “whether important intervening steps [e.g., taking advantage of judicial discovery proceedings not available in arbitration] had taken place”; and (6) whether the delay “affected, misled, or prejudiced” the opposing party. [Oregel v. PacPizza, LLC (2015) 237 Cal. App.4th 342, 354-355 (Oregel ].) “There is no fixed stage in a lawsuit beyond which further litigation waives the right to arbitrate. Rather, the court views the litigation as a whole in determining whether the parties’ conduct is inconsistent with a desire to arbitrate. ” (Hoover v. American Income Life Ins. Co. (2012) 206 Cal.App.4th 1193, 1204.) “Because of the strong policy favoring arbitration, prejudice typically is found only where the petitioning party has unreasonably delayed seeking arbitration or substantially impaired an opponent's ability to use the benefits and 10 DEFENDANT DHRMA BHAKTT’S OPPOSITION TO PLAINTIFF'S MOTION TO VACATE ARBITRATION ORDER No N N nh BA Ww 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 efficiencies of arbitrations.” (/d. at p. 1205.) “Generally, the determination of waiver [of the right to arbitrate] is a question of fact, and the trial court's finding, if supported by sufficient evidence, is binding on the appellate court. [Citations.] ‘When, however, the facts are undisputed and only one inference may reasonably be drawn, the issue is one of law and the reviewing court is not bound by the trial court's ruling.’ [Citation.]” (St. Agnes, supra, 31 Cal.4th at p. 1196.) In the case before us, the essential facts are not disputed. [Arbitech, LLC v. Hackney (Cal. Ct. App., Sept. 28, 2017, No. G053744) 2017 WL 4296101 IV. CONCLUSION Based on the above foregoing arguments, it is respectfully requested that the motion to vacate this court’s order be denied. Dated: November 30-2017 THE LAL LAWFIRM By: k Hari $¢1al, Esq. + TT pei Attorneys for Defendant DHRMA BHAKTI INC; 11 DEFENDANT DHRMA BHAKTT’S OPPOSITION TO PLAINTIFF'S MOTION TO VACATE ARBITRATION ORDER PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF ORANGE I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is: 1020 S. Anaheim Blvd., Suite 202, Anaheim, California 92805. On November 30, 2017, I served the foregoing document described as: DEFENDANT DHRMA BHAKTI’S OPPOSITION TO PLAINTIFF’S MOTION TO VACATE ARBITRATION ORDER ; MEMORANDUM OF POINTS AND AUTHORITIES; SUPPORTING DECLARATION OF HARI S. LAL, ESQ DECLARATION OF MAHESH PATEL; EVIDENTIARY OBJECTIONS TO THE DECLARATION OF MICHAEL DESJARDIN ESQ. on the interested parties in this action by; () placing a true copy thereof enclosed in a sealed envelope addressed as follows: Michael A. DesJardins, Esq. DesJardins & Panitz, LLP 210 W. Birch St, Suite 202 Brea, CA 92821 (x) Via email/pdf file: I transmitted the foregoing documents by electronic mail to the party(s) identified on the attached service list by using the electronic mail as indicated. Said electronic mail was verified as complete and without error. md@desjardinlaw.com; bm@desjardinlaw.com () BY MAIL: I deposited such envelope in the mail at ANAHEIM, California. Envelope was mailed with postage thereon fully prepaid. I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. It is deposited with the United States Postal Service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one (1) day after date of deposit for mailing in affidavit. 0 EXPRESS MAIL: 0 BY FAX: I transmitted the foregoing document by facsimile to the party(s) identified above by using the facsimile number(s) indicated. Said transmission(s) were verified as complete and without error. 0) BY PERSONAL SERVICE: 1 personally delivered true and correct copies of the foregoing documents by hand to the offices of the addressee in a sealed envelope as follows: (X) (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 0) (FEDERAL) I declare that I am emplg ¢of a member of the bar of this court at whose direction the service y Rosa Godinez (PRINT NAME)