Blair Carley vs. Citrus LLC.

Response

Cal. Super. - 4th Dist.August 17, 2016

O O 0 3 A N u n R e W N N O N N N N O N D N O N O N = m e m m m e m e m e m e m e m 0 0 ~ ~ O N n n B A W N = O v e N N n n R e W N = D AEGIS LAW FIRM, PC SAMUEL A. WONG, State Bar No. 217104 ALIS. CARLSEN, State Bar No. 289964 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 swong@aegislawfirm.com acarlsen@aegislawfirm.com Attorneys for Plaintiff, BLAIR CARLEY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE -- BLAIR CARLEY,an individual, Plaintiff, Vs. CITRUS, LLC,a limited liability company; and DOES 1 through 20 inclusive, Defendants. CENTRAL JUSTICE CENTER CASE NO.: 30-2016-00869849-CU-OE-CJC Assignedfor allpurposes to: The Honorable Randall J. Sherman Dept. C24 PLAINTIFF'S RESPONSE TO DEFENDANT’S PETITION TO COMPEL BINDING ARBITRATION Action Filed: August 17,2016 Trial Date: Not yet set Date: December 1, 2016 Time: 1:30 pm Dept: C24 -1- PLAINTIFF’S RESPONSE TO DEFENDANT’S PETITION TO COMPEL BINDING ARBITRATION A W N N O 0 0 1 O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - Plaintiff BLAIR CARLEY (“Plaintiff”), responds fo Defendant CITRUS, LLC’s (“Defendant”) “Petition” to Compel Binding Arbitration (“Petition”) as follows: 1. In light of the fact that Plaintiff filed her lawsuit against Defendant before Defendantfiled its “Petition,” Defendant’s “Petition” to Compel Arbitration (as a petition) is improper because it is nof an initiating document. Defendant’s “Petition” to Compel Arbitration is actually a “Motion” to Compel Arbitration and should be treated by the Court as such, including with respect to the filing of such opposition papers which is governed by California Code of Civil Procedure § 1005(b). Pursuant to California Code of Civil Procedure § 1005(b). Pursuant to California Code of Civil Procedure § 1005(b), Plaintiff intends to file an opposition to Defendants Motion to Compel Arbitration on or before November 16, 2016, nine court days before the hearing set for Defendant’s Motion to Compel Arbitration. 2. Notwithstanding the above, based on the manner of the “Petition,” Plaintiff hereby denies each and all factual allegations made in the “Petition.” To the extent that the “Petition” contains factual allegations, rather than argument, Plaintiff also denies each and all such factual allegations. 3. Based on the manner of the “Petition,” Plaintiff hereby denies each and all factual allegations made in the Declaration of Joseph Ojeda, which is attached to and incorporated into the “Petition.” | FIRST AFFIRMATIVE DEFENSE: DEFENDANTS HAVE FAILED TO SUBMIT A BINDING CONTRACTUAL AGREEMENT 4, Plaintiff alleges that Defendant has produced no admissible evidence of an agreement with Defendant that establishes mutual assent to waive her right to bring an action to enforce and safeguard her statutory rights and protections under the Government Code and California Labor Code. SECOND AFFIRMATIVE DEFENSE: PLAINTIFF’S CLAIMS ARE NOT SUBJECT TO ARBITRATION 5. Pursuant to Paragraph 4 of the purported arbitration agreement, the arbitration agreement does not apply to or cover “any other claim not identified as an ‘Arbitrable Claim’ in 2- PLAINTIFF’S RESPONSE TO DEFENDANT’S PETITION TO COMPEL BINDING ARBITRATION Paragraph 1...” See Declaration of Joseph Ojeda (“Ojeda Decl.”) at § 2, Ex. A. Plaintiff's claims for disability discrimination and wage and hour violations are not defined as “Arbitrable Claims” in Paragraph 1. Id. Indeed, Paragraph 1 does not define any claims as “Arbitrable Claims” and N N W n B R W N \ o 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 thus, Plaintiff is not bound to arbitrate her claims. Id. THIRD AFFIRMATIVE DEFENSE: UNCONSCIONABILITY 5. In the alternative, and pled solely in the alternative of a determination that Plaintiff and Defendant entered into a written “agreement” requiring that the controversy alleged in the “Petition” and her complaint be submitted to arbitration, grounds exist for revocation ofthe alleged agreementto arbitrate because the policy and agreement constitutes an unconscionable contract and runs contrary to the California Supreme Court decision in Armendariz v. Foundation Health Psychcare Services (2000) 24 Cal.4th 103 and other relevant case law. For purposes of this affirmative defense, the alleged agreement upon which Defendants rely is unconscionable for several reasons, including but not limited to the following: (1) Plaintiff was required to sign the arbitration agreement as an express condition of employment on a take it or leave it basis, without explanation or the opportunity for negotiation; (2) the purported arbitration agreement fails to provide for adequate written findings; (3) the purported arbitration agreement fails to specify, with any particularity, the rules by which arbitration would proceed; (4) fails to provide a copy of the rules by which arbitration would proceed; and (4) provides false information regarding where the purported, ambiguous arbitration rules can be found. As a result of the numerous unconscionable clauses contained in the purported arbitration agreement, the entire arbitration “agreement” must be stricken. 1 nn I" " " I 3- PLAINTIFF'S RESPONSE TO DEFENDANT’S PETITION TO COMPEL BINDING ARBITRATION o e 0 A N n n R R W N N O N O N N N N N m m e m p m m m pe d e d p d e d p e p e 8 3 8 8 R B R B R E E S & I x a = r 5 0 = 3 WHERETOFORE,Plaintiff prays as follows: 1. That the Petition is denied; 2 That Defendant’s claims for costs of suit herein be denied; 3. That the Court deem the “Petition” a “Motion” proceed accordingly; and 4 For such other and furtherrelief as the Court may deem proper and just. Dated: October 26, 2016 AEGIS LAWFIRM, PC (LoC-- Samuel A. Wong Ali S. Carlsen Attorneys for Plaintiff Blair Carley 4- PLAINTIFF’S RESPONSE TO DEFENDANT’S PETITION TO COMPEL BINDING ARBITRATION O o 0 ~ ~ A N n n B A W N N O N O N N N N N N N m m me m e m e m m m he d he m be at pe ed e e c o ~ ~ O N w b B A W N = O W O N B R E W e e O o CERTIFICATE OF SERVICE I, the undersigned, 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; am employed with Aegis Law Firm PC and my business address is 9811 Irvine Center Drive, Suite 100, Irvine, California 92618. On October 26, 2016, I served the foregoing document entitled: . PLAINTIFF’S RESPONSE TO DEFENDANT’S PETITION TO COMPEL BINDING ARBITRATION on all the appearing and/or interested parties in this action by placing [_] the original [X] a true copy thereof enclosed in sealed envelope(s) addressed as follows: Barry Z. Brodsky Brian D. Peters KAUFMAN DOLOWICH VOLUCK LLP 11755 Wilshire Blvd., Suite 2400 Los Angeles, CA 90025 Attorneysfor Defendant: Citrus LLC X (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 on that same day with postage thereon fully prepaid at Irvine, California in the ordinary course of business. [ am aware that on motion of 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(¢c).) [] (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 to be deposited for delivery to a facility regularly maintained Federal Express for overnight delivery. (Cal Code Civ. Proc. § 1013(c); Fed. R. Civ. Proc. 5(c).) [] (BY ELECTRONIC TRANSMISSION) I caused said document(s) to be served via electronic transmission to the addressee(s) listed above 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. S(0)(2)(A).) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. \ Executed on October 26, 2016, at Irvine, California. A - TNC / Kath¥an Alvarez A CERTIFICATE OF SERVICE