Nazanen Jamili vs. The Irvine Company, LLC

Reply Other

Cal. Super. - 4th Dist.October 7, 2016

AN Ln W N CALL & JENSEN A Professional Corporation Julie R. Trotter, Bar No. 209675 Joshua G. Simon, Bar No. 264714 610 Newport Center Drive, Suite 700 Newport Beach, CA 92660 Tel: (949) 717-3000 Fax: (949) 717-3100 jtrotter @ calljensen.com jsimon@calljensen.com ELECTRONICALLY FILED Superior Court of California, County of Orange 02/03/2017 at 03:29:00 Pi Clerk of the Superior Court By Sarah Loose Deputy Clerk Attorneys for Defendants The Irvine Company LLC and The Irvine Company Apartment Communities, Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE NAZANEN JAMILI, an individual, on behalf of herself and all others similarly situated, Plaintiff, VS. THE IRVINE COMPANY, LLC, a California corporation; and DOES 1 through 100, inclusive, Defendants. TIC03-35:1877941_2:2-3-17 Case No. 30-2016-00879610-CU-OE-CXC Assigned for all purposes to Hon. William Claster, Dept. CX102 DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION TO COMPEL ARBITRATION OF PLAINTIFF’S INDIVIDUAL CAUSES OF ACTION AND DISMISS CLASS CLAIMS Date: Time: Place: February 10, 2017 9:00 a.m. Dept. CX-102 October 7, 2016 None Set Complaint Filed: Trial Date: DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION TO COMPEL ARBITRATION OF PLAINTIFF'S INDIVIDUAL CAUSES OF ACTION AND DISMISS CLASS CLAIMS AN Ln W N I. THE ARBITRATION AGREEMENT IS A VALID CONTRACT There is a valid contract to arbitrate this lawsuit, and Plaintiff has not and cannot genuinely dispute the existence of that contract. Cruise v. Kroger, 233 Cal. App. 4th 390, 396 (2015) (under “both federal and state law, the threshold question presented by a petition to compel arbitration is whether there is an agreement to arbitrate.”) (quoting Cheng-Canindin v. Renaissance Hotel Associates, 50 Cal. App. 4th 676, 683 (1996)) (emphasis in original). Plaintiff does not dispute and, therefore, concedes that her signature is on the Arbitration Agreement. (Gart Decl., Ex. A; see Jamili Decl., qq 6-8.) The Arbitration Agreement clearly and explicitly requires both Plaintiff and Defendants to submit all employment-related claims to binding arbitration, and Plaintiff does not even attempt to dispute that her causes of action fall within the ambit of the Arbitration Agreement. A valid contract, therefore, governs Plaintiff’s lawsuit. Plaintiff’s attempts to challenge the existence of a valid contract all fail. First, Plaintiff’s allegation that she does not remember signing the Arbitration Agreement, (Jamili Decl., { 8), does not call the parties’ contract into question. See DiLoreto v. O'Neill, 1 Cal. App. 4th 149, 160 (1991) (“Although O’Neill stated in her deposition that she was not sure if the signature was or was not hers, and could not recall signing such a contract, such evidence is insufficient to create a triable issue of fact because a failure to recall does not logically contradict DilLoreto’s evidence.” Second, Plaintiff’s argument that Defendants have not met their burden to show that Plaintiff signed the agreement, (Opp. at 1, 5-6), is wrong on the law and the facts. Defendants are “not required to authenticate an opposing party’s signature on an arbitration agreement . . . in moving for arbitration.” Espejo v. Southern California Permanente Medical Group, 246 Cal. App. 4th 1047, 1059 (2016). Again, Plaintiff does not dispute that it is her signature on the Arbitration Agreement. In any event, Defendants have already authenticated the Arbitration Agreement she indisputably signed. (See Gart Decl., 4-5.) “Authentication of a writing means . . . the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is.” (Cal. Evid. Code "In DiLoreto, the defendant even tried to argue that she could “only speculate as to whether that is or is not [her] signature at the bottom of the page.” DiLoreto, 1 Cal. App. 4th at 160. Here, even Plaintiff knows better than to argue that the signature on the Arbitration Agreement is not her own. TIC03-35:1877941_2:2-3-17 -1- DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION TO COMPEL ARBITRATION OF PLAINTIFF'S INDIVIDUAL CAUSES OF ACTION AND DISMISS CLASS CLAIMS AN Ln W N § 1400.) Moreover, “[l]ike any other material fact, the authenticity of a document may be established by circumstantial evidence.” People v. Valdez, 201 Cal. App. 4th 1429, 1435 (2011). Defendants have submitted more than enough circumstantial evidence to deem the Arbitration Agreement signatures authentic. (See Gart Decl., |] 4-5.) Every new hire is presented with the appropriate policies and paperwork. Id. That paperwork includes the arbitration agreement. Id. Plaintiff’s file includes the signed arbitration agreement. Id. The paperwork is kept in the normal course of business. Id. The circumstantial evidence demonstrates that Plaintiff signed the Arbitration Agreement. See also Condee v. Longwood Mgmt. Corp., 88 Cal. App. 4™ 215, 218 (2001) (where the authenticity of a party’s signature is not challenged, no challenge lies to the agreements authenticity). Third, Plaintiff’s strange argument that Defendants have not shown that she was directly employed by TIC is not only contradicted by her Complaint, (Compl., Jj 10, 62), her declaration, (Jamili Decl., q 2), and the Arbitration Agreement she concedes she signed, (see Gart Decl., Ex. A) (the Arbitration Agreement is between Plaintiff and “the Irvine Company or any of its related entities”), but it is also irrelevant. Plaintiff was employed by TICAC, and the Arbitration Agreement governs her employment as TICAC is a related entity of TIC. (Gart Decl., ] 24, Ex. A.) Plaintiff does nothing to challenge the existence of a valid contract between the parties to arbitrate her causes of action. II. PLAINTIFF FAILS TO CHALLENGE THE DELEGATION PROVISION SPECIFICALLY Plaintiff concedes that the delegation provision is clear and unmistakable. (Opp. at 4.) Despite proclaiming that she challenges the conscionability of the delegation provision, (Opp. at 14), Plaintiff fails to conduct the requisite specific analysis of the delegation provision as required by the United States Supreme Court in Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63 (2010) (“Rent-A-Center”) and by the California Court of Appeal in Tiri v. Lucky Chances, Inc. 226 Cal. App. 4th 231, 242 (2014) (“Tir”). Indeed, all sections of the Opposition concerning purported unconscionability discuss the Arbitration Agreement as a whole, not the delegation provision specifically. Plaintiff, therefore, has not adequately challenged the delegation provision, and this case must be referred to arbitration. TIC03-35:1877941_2:2-3-17 -2 DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION TO COMPEL ARBITRATION OF PLAINTIFF'S INDIVIDUAL CAUSES OF ACTION AND DISMISS CLASS CLAIMS AN Ln W N As the Court of Appeal explained, the Supreme Court in Rent-A-Center requires that “any claim of unconscionability must be specific to the delegation clause.” Tiri, supra, 226 Cal. App. 4" at 244 (citing 561 U.S. at 73, 130 S.Ct. 2772). The plaintiff in Rent-A-Center failed to direct his claim of unconscionability specifically to the delegation clause, and thus delegation of that issue to the arbitrator was upheld. Rent-A-Center, supra, 561 U.S. at 73, 130 S.Ct. 2772. Illustrating how such a claim must be made, the Court explained that an employee’s contention that discovery limitations in arbitration were substantively unconscionable must be specifically directed at the delegation clause. “In the [C]ourt’s words, the employee “would have had to argue that the limitation upon the number of depositions causes the arbitration of his claim that the Agreement is unenforceable to be unconscionable.” The court acknowledged that this “would be, of course, a much more difficult argument to sustain than the argument that the same limitation renders arbitration of [the employee’s] factbound employment-discrimination claim unconscionable.” Tiri, supra, 226 Cal. App. 4th at p. 244 (citing Rent-A-Center, supra, 561 U.S. at 74). Plaintiff makes no effort to analyze the purported unconscionability of the delegation provision specifically. None of Plaintiff’s arguments regarding substantive conscionability apply to the delegation provision as required by Rent-A-Center and Tiri. (Opp. at 10-11.) Indeed, Plaintiff fails to make a single argument as to how any purported substantive shortcoming of the Arbitration Agreement would render unconscionable the granting of the arbitrator authority to determine arbitrability. Tiri, supra, 226 Cal. App. 4th at p. 244 (citing Rent-A-Center, supra, 561 U.S. at p. 74, 130 S.Ct. 2772). Plaintiff makes no argument for example that there is a limitation in discovery that would make the arbitration of arbitrability unconscionable. Because Plaintiff fails to challenge even a single substantive aspect of the delegation provision, she has not and cannot satisfy the sliding scale standard used to evaluate unconscionability as to the delegation provision. Id.; Armendariz v. Found. Health Psychcare Servs., Inc., 24 Cal. 4th 83, 114 (2000); Pinela v. Neiman Marcus Grp., Inc., 238 Cal. App. 4th 227, 242 (2015). Plaintiff’s failure to challenge the delegation clause specifically dooms her attempt to distinguish this case from Rent-A-Center. Plaintiff argues that Rent-A-Center is inapposite because she does not dispute the “‘At Will’ Employment” portion of the contract, so she has not challenged the entire agreement as the plaintiff did in Rent-A-Center. (Opp. at 14-15.) But not disputing one portion TIC03-35:1877941_2:2-3-17 -3- DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION TO COMPEL ARBITRATION OF PLAINTIFF'S INDIVIDUAL CAUSES OF ACTION AND DISMISS CLASS CLAIMS AN Ln W N of the Arbitration Agreement does not mean Plaintiff conducted the requisite analysis of another portion of the Arbitration Agreement, namely the delegation provision, as required by Rent-A-Center. Plaintiff fails to explain how that delegation provision is substantively unconscionable in any way. Plaintiff further argues ineptly that Rent-A-Center is inapposite because the FAA does not apply to the Arbitration Agreement and, so the argument goes, “Rent-A-Center’s holding that the arbitrator must decide the validity of an arbitration agreement does not apply to this case.” (Opp. at 14-15.) The Court of Appeal in Tiri explicitly rejected this argument. 226 Cal. App. 4th at 239 (“We conclude that the FAA’s applicability is immaterial because our decision in this case would be the same under either the FAA or the CAA.”). Courts have long held that parties to an arbitration agreement not governed by the FAA may agree to delegate to the arbitrator, instead of a court, questions regarding the enforceability of the agreement. Bruni v. Didion, 160 Cal. App. 4th 1272, 1286 (2008) (“Because the parties are the masters of their collective fate, they can agree to arbitrate almost any dispute-even a dispute over whether the underlying dispute is subject to arbitration.”); Freeman v. State Farm Mut. Auto. Ins. Co., 14 Cal. 3d 473, 480 (1975). In any event, the FAA most certainly applies to the Arbitration Agreement as discussed below. III. ALTHOUGH IT HAS NO BEARING ON THE INSTANT MOTION, THE FAA GOVERNS THE ARBITRATION AGREEMENT Plaintiff ineffectively argues that Defendants have not shown that the Arbitration Agreement affects interstate commerce. First, Plaintiff argues that Ms. Gart has not established that she has sufficient knowledge of TICAC’s business practices. Ms. Gart’s declaration refutes this. (Gart Decl., I 1, 2)(“As part of my job duties as Vice President, Human Resources, I have responsibility for overseeing human resource functions for TIC’s related entity The Irvine Company Apartment Communities, Inc. (“TICAC”).) Second, Plaintiff argues that there is no evidence that Plaintiff could understand that TICAC was a “related entity.” This argument cannot be taken seriously as it is contradicted by the Gart declaration and Plaintiff’s Complaint and declaration. (/d.; Jamili Decl., q 2 (“TI was hired as a Leasing Consultant for Defendants The Irvine Company (“TIC”) and The Irvine Company Apartment Communities, Inc. (“TICAC”)”).) TIC03-35:1877941_2:2-3-17 -4 DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION TO COMPEL ARBITRATION OF PLAINTIFF'S INDIVIDUAL CAUSES OF ACTION AND DISMISS CLASS CLAIMS AN Ln W N Third, citing Hoover v. American Income Life Ins. Co., 206 Cal. App. 4th 1193, 1207 (2012) (Hoover), Plaintiff argues that Defendants have failed to demonstrate that Plaintiff’s specific job duties bore upon interstate commerce in a substantial way. Hoover does not stand for that proposition, which is contrary to the standard for application of the FAA as articulated by the United States Supreme Court, and Hoover is distinguishable in any event. There, the court concluded in dicta that defendant had not met its burden of showing that the FAA applied because it had adduced no evidence “establishing the relationship between Hoover and AIL.” Hoover, 206 Cal. App. 4th at 1207. The court noted that defendant had established only that “Hoover was a California resident who sold life insurance policies,” and that “AIL [was] based in Texas.” Id. Given the dearth of evidence, the court concluded that AIL had not shown that the employment relationship “had a specific effect or ‘bear[ing] on interstate commerce in a substantial way.” Id. This purported standard set out in dicta in Hoover is at odds with United States Supreme Court precedent interpreting the phrase “involving commerce” as used in the FAA as equivalent to “affecting commerce,” and encompassing a wider range of transactions than those actually “in commerce”-that is, those “within the flow of interstate commerce.” See Citizens Bank v. Alafabco Inc., 539 U.S. 52, 56 (2003). Defendants need only establish that Jamili’s employment agreement “evidenc[ed] a transaction involving commerce” within the meaning of § 2 of the FAA, which Defendants have done. See e.g., Montes v. San Joaquin Community Hospital, No. 1:13-cv-01722-AWI-JLT, 2014 WL 334912, *5 (E.D.Cal. Jan. 29, 2014) (concluding that an employment contract between plaintiff and a hospital was governed by the FAA because the hospital’s activities were involved interstate commerce). Not only does the Arbitration Agreement specifically state that it is governed by the FAA, it is undisputed by Plaintiff in her declaration that she was a Leasing Consultant and Sales Specialist with TICAC involving leases of an interstate nature. (Gart Decl., ] 3, 6.) The FAA applies to the Arbitration Agreement. IV. THE ARTBITRATION AGREEMENT, AS A WHOLE, IS NOT UNCONSCIONABLE A. The Arbitration Agreement Is Not Procedurally Unconscionable 1. Plaintiff’s Four Arguments Regarding Procedural Unconscionability Are Unavailing a) “Contracts of adhesion” may be used to impose conditions of employment TIC03-35:1877941_2:2-3-17 -5- DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION TO COMPEL ARBITRATION OF PLAINTIFF'S INDIVIDUAL CAUSES OF ACTION AND DISMISS CLASS CLAIMS AN Ln W N Although the Court need not address the unconscionability of the Arbitration Agreement given the delegation provision, the Arbitration Agreement is nonetheless enforceable. Plaintiff first argues that the Arbitration Agreement is procedurally unconscionable because it is a “classic contract of adhesion” presented on a “take-it-or-leave-it basis.” (Opp. at 7-8.) California courts have established that a pre-dispute arbitration agreement is not procedurally unconscionable merely because it is a condition of employment. (Lagatree v. Luce, Forward, Hamilton & Scripps, LLP, 74 Cal. App. 4th 1105, 1127 (1999) (stating that cases uniformly agree that a compulsory arbitration agreement is not rendered unenforceable just because it is required as a condition of employment or offered on a “take it or leave it” basis). In finding the arbitration clause in Lagatree was not unconscionable, the court noted that, “as [Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991)] and its progeny make clear, the compulsory nature of a predispute arbitration agreement does not render the agreement unenforceable on grounds of coercion or for lack of voluntariness.” 74 Cal. App. 4th at 1129. Thus, contrary to Plaintiff’s assertion, the mere fact that the Arbitration Agreement was a condition of employment does not render it unenforceable. Such contracts are “an inevitable fact of life for all citizens-businessman and consumer alike.” Graham v. Scissor-Tail, Inc., 28 Cal. 3d 807, 817 (1981). “To describe a contract as adhesive in character is not to indicate its legal effect . . . . Thus, a contract of adhesion is fully enforceable according to its terms unless certain other factors are present which, under established legal rules-legislative or judicial -operate to render it otherwise.” Id. at 819 (citations and footnotes omitted). Under Plaintiff’s theory, practically every condition of employment would be an “adhesion contract” which could not be enforced because it would have been presented to the employee by the employer in a situation of unequal bargaining power on a “take it or leave it” basis. The law does not permit such an absurd result. b) Plaintiff’s assertion she was pressured to sign the Arbitration Agreement lacks foundation and makes no difference Plaintiff does not recall reviewing or signing the Arbitration Agreement. (Jamili Decl., 8.) She thus cannot present conflicting evidence that she “felt pressured” to sign the Arbitration Agreement. She states, in her declaration that she “felt pressured to sign the forms,” but because she does not recall the Arbitration Agreement, she lacks the requisite foundation to testify that the TIC03-35:1877941_2:2-3-17 -6- DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION TO COMPEL ARBITRATION OF PLAINTIFF'S INDIVIDUAL CAUSES OF ACTION AND DISMISS CLASS CLAIMS AN Ln W N Arbitration Agreement was among the forms she felt pressured to sign. Moreover, she states that she signed the “forms” quickly in less than one minute. Notably, Plaintiff does not state that she did not read the forms, that she needed additional time to read the forms, that she asked for additional time, that she was denied additional time, and that had she been provided additional time to review, she would have reviewed the document and not signed the Arbitration Agreement. To the extent Plaintiff is resorting here to the baseless “I didn’t know what I signed” argument, such is contrary to California law. “[A] party cannot avoid the terms of a contract on the ground that he or she failed to read it before signing,” even where the party relied on misrepresentations that it was not necessary to read before signing. Marin Storage & Trucking, Inc. v. Benco Contracting & Engineering, Inc., 89 Cal. App. 4th 1042, 1049 (2001); Rosenthal v. Great Western Fin. Securities Corp., 14 Cal. 4th 394 at 413-414 (1996). Failure to read or understand the arbitration clause is no defense. Mission Viejo Emergency Med. Associates v. Beta Healthcare Group, 197 Cal. App. 4th 1146, 1154-55 (2011) (“In California, we adhere to the objective theory of contract law . . . Plaintiffs’ argument regarding [defendant’s] lack of knowledge [of the arbitration provision] ignores the objective theory of contract law . . . Failing to read a policy . . . is not sufficient reason to hold a clear and conspicuous policy provision unenforceable.”). Plaintiff does not dispute that she knowingly signed the agreements, which by law constitutes assent. Quevedo v. Macy's, Inc., 798 F. Supp. 2d 1122, 1134 (C.D. Cal. 2011). Moreover, the time in which Plaintiff had to consider the agreement is routine in such contracts, so this could only show a low degree of procedural unconscionability, especially where, as here, the agreement “is not overly-long and is written in clear, unambiguous language.” See Dotson v. Amgen, Inc., 181 Cal. App. 4th 975, 980-81 (2010). c) The Arbitration Agreement clearly states its purpose Plaintiff falsely asserts that the Arbitration Agreement “states nothing about the advantages and disadvantages of arbitration.” (Opp. at 8.) Not so. The Arbitration Agreement is a one-page separate agreement specifically titled, “Mutual Agreement to Arbitrate and ‘At Will’ Employment,” it clearly indicates that the parties mutually agree to resolve all dispute regarding Plaintiff’s employment through binding arbitration, that the arbitration will be governed by JAMS Employment Arbitration Rules & Procedures, and that the parties agree to waive jury trial and class action claims. Notably, TIC03-35:1877941_2:2-3-17 -7 DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION TO COMPEL ARBITRATION OF PLAINTIFF'S INDIVIDUAL CAUSES OF ACTION AND DISMISS CLASS CLAIMS AN Ln W N Plaintiff does not assert in her declaration that she did not know the advantages or disadvantages of the Arbitration Agreement when she signed or that had she possessed such knowledge, she would not have signed the Arbitration Agreement. d) Any alleged failure to provide a copy of the JAMS Rules does not render the arbitration agreement procedurally unconscionable There is no procedural defect resulting from the fact that the Arbitration Agreement refers and incorporates “the JAMS Employment Arbitration Rules & Procedures, which are available at www.jamsadr.com.” (See Gart Decl., Ex. A.) Plaintiff was informed of the specific rules that would govern the arbitration and the website where she could find those rules. JAMS is a recognized and widely-used arbitration provider, and referencing JAMS’ applicable rules within the Arbitration Agreement is sufficient to avoid a finding of procedural unconscionability because such are “easily available to the contracting parties” through a simple internet search. Baker v. Osborn Development Corp., 159 Cal. App. 4th 884, 895 (2008). Accordingly, it was not procedurally unconscionable to simply reference such rules. Any minimal procedural unconscionability arising from a failure to attach the rules is not material where there is no showing that this failure would lead to an unfair surprise. Lane v. Francis Capital Management LLC, 224 Cal. App. 4th 676, 690 (2014) (“[t]here could be no surprise, as the arbitration rules referenced in the agreement were easily accessible to the parties - the AAA rules are available on the Internet”); see also Peng v. First Republic Bank, 219 Cal. App. 4th 1462, 1472 (2013) (“failure to attach the AAA rules, standing alone, is insufficient grounds to support a finding of procedural unconscionability”). Plaintiff’s citations are misplaced because in those cases, it was the substantive oppression of the unattached rules that led to a finding of surprise and unconscionability. Indeed, “[a]ll of the cases relied upon by Trivedi can be analyzed under this principle.” Id. In Trivedi, unlike here, the agreement sought to impose substantively different rules regarding fee recovery which would have been detrimental to the employee. Trivedi v. Curexo Tech. Corp., 189 Cal. App. 4th 387, 392 (2010). Likewise, in Harper v. Ultimo, 113 Cal. App. 4th 1402 (2000), the agreement incorporated by reference Better Business Bureau rules which did not allow for tort damages. Id. at 1406. Here, no such prejudice or substantive oppression exists. TIC03-35:1877941_2:2-3-17 -8- DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION TO COMPEL ARBITRATION OF PLAINTIFF'S INDIVIDUAL CAUSES OF ACTION AND DISMISS CLASS CLAIMS AN Ln W N 2, If the Arbitration Agreement Were Procedurally Unconscionable, It Would Be Only Minimally So If the Court finds the Arbitration Agreement procedurally unconscionable, it should note that the take-it-or-leave-it employment contract scenario only results in a minimal degree of procedural unconscionability. See, e.g., Dotson v. Amgen, Inc. (2010) 181 Cal. App. 4th 975, 981-82; Collins v. Diamond Pet Food Processors of California, LLC, Case No. 2:13-cv-00113-MCE-KJN, 2013 WL 1791926, at *11 (E.D. Cal. Apr. 26, 2013); Miguel v. JPMorgan Chase Bank, N.A., Case No. CV 12- 3308 PSG (PLAX), 2013 WL 452418, at * 15 (C.D. Cal. Feb. 5, 2013); Saincome v. Truly Nolen of Am., Inc., Case No. 11-CV-825-JM (BGS), 2011 WL 3420604, at *4-5, 10 (S.D.Cal. Aug.3, 2011). B. The Arbitration Agreement Is Not Substantively Unconscionable 1. The Central Purpose of the Arbitration Agreement Is to Require Arbitration of Claims Requiring employees to arbitrate claims against their employer is not an unlawful purpose. Armendariz, supra, 24 Cal.4th at 90-91. It is unlawful, however, to make “a systemic effort to impose arbitration on an employee not simply as alternative to litigations, but as an inferior forum that works to the employer’s advantage.” Id. at 124. Plaintiff fails to identify a single clause in the Arbitration Agreement or incorporated JAMS Employment Arbitration Rules & Procedures that renders arbitration an inferior forum that works to the employer’s advantage. Thus, it cannot be said that substantive unconscionability “permeates” the Arbitration Agreement such that it cannot be enforced. Mercuro, 96 Cal. App. 4th at 184-85. Even if there were multiple unconscionable clauses in the Arbitration Agreement (which is certainly not the case), the Court must consider whether such unconscionability is collateral to the agreement’s main purpose or permeates the goal of arbitration. (Id.) Put simply: does any identified unconscionability make arbitration an inferior forum? Here, the Court must answer this question in the negative. 2, The Arbitration Agreement’s Purported Silence on the Armendariz Factors Does Not Establish Substantive Unconscionability Plaintiff falsely infers that because the Arbitration Agreement is silent as to the Armendariz factors it is therefore substantively unconscionable. The law requires the exact opposite inference. Civil Code section 1643 demands, “A contract must receive such an interpretation as will make it TIC03-35:1877941_2:2-3-17 -9- DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION TO COMPEL ARBITRATION OF PLAINTIFF'S INDIVIDUAL CAUSES OF ACTION AND DISMISS CLASS CLAIMS AN Ln W N lawful, operative, definite, reasonable, and capable of being carried into effect, if it can be done without violating the intention of the parties.” Moreover, Armendariz holds that an agreement to arbitrate FEHA claims implies an agreement by the employer to adequate discovery and to abide by the substantive remedial provisions of the statute. 24 Cal. 4th at 104-106, 113. Plaintiff also fails to identify anything in the JAMS Employment Arbitration Rules & Procedures that is substantively unconscionable. That is because she cannot because JAMS is one of the premier arbitral bodies where many retired California judges have chosen to practice. (Gart Decl., Ex. A.) Plaintiff’s arguments fail. 3. The Agreement Certainly Is Not Unconscionable Enough to Warrant Denying Arbitration Although Plaintiff fails to identify any substantively unconscionable aspect of the Agreement, as there is none, should the Court identify any such aspect, then it should sever it and enforce the remainder of the Arbitration Agreement as set forth in the “severability” provision in the final sentence of the Arbitration Agreement in accordance with section 1670.5 of the California Code of Civil Procedure. “As a general rule, if the central purpose of the contract is ‘permeated’ or ‘tainted’ with unconscionability...the contract as a whole cannot be enforced. If...the unconscionability...is collateral to the main purpose of the contract, and the offending provisions can be excised...then the remainder of the contract can be enforced.” Mercuro v. Superior Court, 96 Cal. App. 4th 167, 184-85 (2002). The general rule comports with the doctrine of severance, which “attempts to conserve a contractual relationship if to do so would not be condoning an illegal scheme.” Armendariz, supra, 24 Cal. 4th 83, 124 (2000). There is nothing illegal about agreeing to arbitrating claims and, thus, the Court should sever any offending provision in the parties’ Arbitration Agreement. II. CONCLUSION Plaintiff has failed to meet her burden to overcome the presumption of arbitrability. Dated: February 3, 2017 CALL & JENSEN A ional Corporation By: Joshua G. Simon Attorneys for Defendants TIC03-35:1877941_2:2-3-17 -10 - DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION TO COMPEL ARBITRATION OF PLAINTIFF'S INDIVIDUAL CAUSES OF ACTION AND DISMISS CLASS CLAIMS AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 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 610 Newport Center Drive, Suite 700, Newport Beach, CA 92660. On February 3, 2017, I served the foregoing document described as DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION TO COMPEL ARBITRATION OF PLAINTIFF'S INDIVIDUAL CAUSES OF ACTION AND DISMISS CLASS CLAIMS on the following person(s) in the manner indicated: Matthew J. Matern, Esq. Attorneys for Dalia Khalili, Esq. Shayna E. Dickstein, Esq. Plaintiff Nazanen Jamili Matern Law Group, PC 1230 Rosecrans Avenue, Suite 200 Manhattan Beach, CA 90266 Tel: (310) 531-1900 Fax: (310) 531-1901 mmatern @maternlawgroup.com dkhalili @maternlawgroup.com sdickstein @maternlawgroup.com [ 1 (BY ELECTRONIC SERVICE) I am causing the document(s) to be served on the Filing User(s) through the Court’s Electronic Filing System. [ 1 @BYMAIL) Iam familiar with the practice of Call & Jensen for collection and processing of correspondence for mailing with the United States Postal Service. Correspondence so collected and processed is deposited with the United States Postal Service that same day in the ordinary course of business. On this date, a copy of said document was placed in a sealed envelope, with postage fully prepaid, addressed as set forth herein, and such envelope was placed for collection and mailing at Call & Jensen, Newport Beach, California, following ordinary business practices. [ X] (BY FEDEX) Iam familiar with the practice of Call & Jensen for collection and processing of correspondence for delivery by overnight courier. Correspondence so collected and processed is deposited in a box or other facility regularly maintained by FedEx that same day in the ordinary course of business. On this date, a copy of said document was placed in a sealed envelope designated by FedEx with delivery fees paid or provided for, addressed as set forth herein, and such envelope was placed for delivery by FedEx at Call & Jensen, Newport Beach, California, following ordinary business practices. [ 1 (BY FACSIMILE TRANSMISSION) On this date, at the time indicated on the transmittal sheet, attached hereto, I transmitted from a facsimile transmission machine, which telephone number is (949) 717-3100, the document described above and a copy of this declaration to the person, and at the facsimile transmission telephone numbers, set forth herein. The above-described transmission was reported as complete and without error by a properly issued transmission report issued by the facsimile AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2.3 26 27 28 transmission machine upon which the said transmission was made immediately following the transmission. [ 1 (BY ELECTRONIC TRANSMISSION) I served electronically from the electronic notification address of the document described above and a copy of this declaration to the person and at the electronic notification address set forth herein. The electronic transmission was reported as complete and without error. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on February 3, 2017, at Newport Beach, California. pie Vlles Connie Valles