Jeffrey Cristobal vs. Applied Medical Resources Corporation

Response

Cal. Super. - 4th Dist.December 6, 2016

O o 0 A N n h B A W e a N D N o N o N o N o N o N N r N i t Jo h - - - - p- t - T b - © N N A N h a H A L O N D = O o O 0 N N W n S W N o - < ~ ~ AEGIS LAW FIRM, PC SAMUEL A. WONG, State Bar No. 217104 KASHIF HAQUE, State Bar No. 218672 JESSICA L. CAMPBELL, State Bar No. 280626 ALI S. CARLSEN,State Bar No. 289964 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 Attorneys for Plaintiff, JEFFREY CRISTOBAL, individually and on behalf of all others similarly situated SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE JEFFREY CRISTOBAL, individually and on behalfof all others similarly situated, Plaintiff, Vs. APPLIED MEDICAL RESOURCES CORPORATION; and DOES1 through 20 inclusive, Defendants. Case No. 30-2016-0089-1275-CU-OE-CXC Assignedfor allpurposes to Hon. Thierry Patrick Colaw, Dept. CX105 PLAINTIFF'S RESPONSE TO DEFENDANT’S SUPPLEMENTAL SUBMISSION IN SUPPORT OF DEFENDANT’S MOTION TO COMPEL ARBITRATION Filed concurrently with Evidentiary Objections to the Declaration ofGary Fischer and Declaration ofAli S. Carlsen Date: June 2, 2017 Time: - 10:30am Location: CX105 PLAINTIFF'S RESPONSE TO DEFENDANT'S SUPPLEMENTAL SUBMISSION o O L e N N n h h s W N N O N N N N N N N e d e m e e e e e e e e e e e d 2 8 B B 8 R R F I R R E E 8 5 3 8 5 & 2 0 0 = ~ o () 7) I. INTRODUCTION The Court continued the hearing on Defendant Applied Medical Resources Corporation’s (“Defendant”) Motion to Compel Arbitration (“Motion”) in order to give it an opportunity to provide a declaration, ifvalidly available, to lay a foundation confirming the manner in which personnel files/records are maintained. Defendant now submits the Declaration of Gary Fischer (“Fischer Decl.”) purporting to do just that. However, despite being given a second bite at the apple, Defendantstill fails to provide any meaningful foundation, let alone anyone withpersonal knowledge, in order to meet its burden to prove the existence of a valid agreement to arbitrate. Instead, Defendant has now raised several additional reasons to doubt the authenticity of the alleged agreements. Accordingly, the Motion must be denied in its entirety. II. DEFENDANT CANNOTPROVE THE EXISTENCE OFAVALID AGREEMENT TO ARBITRATE In connection with this Motion, Defendant has submitted three (3) documents that it alleges show that Plaintiff agreed to arbitrate his claims. Those documents are entitled: eo Applied Medical Employment Application attached as Exhibit A to the Declaration of Cynthia Bonner (“Bonner Decl.”) and Exhibit A to the Fischer Decl. (hereinafter “Application™); e Acknowledgement of Receipt and Acceptance of Dispute Resolution Policy attached as Exhibit B, p. 1 to the Bonner Decl. and Exhibit B, p. 1 to the Fischer Decl. (hereinafter “Acknowledgement™); and e Applied Medical Corporation Team Member Dispute Resolution Policy attached as Exhibit B, pp. 2-5 to the Bonner Decl. and Exhibit B, pp. 2-5 to the Fischer Decl. (hereinafter “TMDRP”). Recognizing that separately, these three documents fail to constitute a valid agreementto arbitrate (in addition to being unconscionable), Defendant attempts to bootstrap the TMDRP together with the Acknowledgement to give the appearance as if they are part of the same document. Most importantly, despite being at Defendant's disposal, Defendant has not presented anyone with personal knowledge of physically handing Plaintiff the TMDRP together with the Acknowledgement. Defendant has now had two opportunities to prove the authenticity of these agreements -1- PLAINTIFF’S RESPONSE TO DEFENDANT’S SUPPLEMENTAL SUBMISSION O v O e 3 n n A W N = N O N N N O N N N N N N e m e m e m e m e m e e e e 0 0 ~ ~ O N W n A W N = D V e N N n l R W N e s O o 7 Pau 1| \ ~ ~ and has failed to do so and has additionally raised several reasons to doubt the authenticity ofthe documents. A. THE TMDRP WAS NOT CONTAINED WITHIN PLAINTIFF'S PERSONNEL FILE It is Defendant’s burden, as the moving party, to prove the existence of an agreement to .arbitrate by a preponderance ofthe evidence. See Peng v. First Republic Bank, 219 Cal. App. 4th 1462, 1468 (2013). Because the TMDRP does not appear to be the same document, is not dated, not signed by Plaintiff, and contains no other indicating factors that Plaintiff agreed to its terms, Defendant has failed to meet its burden. However, after being given a second opportunity to meet its burden, Defendant now asserts that Mr. Fischer personally “obtained the [TMDRP] directly from [Plaintiff’s] personnel file.” Fischer Decl. at § 10, emphasis added. Defendant also asserts that it immediately transmits all documents its employees sign to its secure personnel department in Rancho Santa Margarita office where they are kept under lock and key. Id. at J 4. Once these documents are placed into an employee’s personnel file, only a select few individuals have access to them. Id. Moreover, Defendant asserts that it does not purge or delete an employee’s personnel records. 1d. With that in mind, presumably, when Plaintiff sent his request for his personnel file to Defendant’s Rancho Santa Margarita office and received 185 pages in response to that request (see Declaration of Ali S. Carlsen (“Carlsen Decl.”) at § 2, Ex. A), all the documents that Defendant maintained “under lock and key” in Plaintiff’s personnel file would have been included in that that production. At the very least, those documents Defendant declares, under penalty ofperjury, that it obtained directly from Plaintiffs personnelfile would be included in that production. Astonishingly enough, the TMDRP was not among the 185 documents Defendant produced in response to Plaintiffs request. Id. at q 3. This inconsistency only scratches the surface. Among other discrepancies between the TMDRP and the Acknowledgement: ¢ The TMDRP is hole punched, the Acknowledgement is not; 2- PLAINTIFF'S RESPONSE TO DEFENDANT'S SUPPLEMENTAL SUBMISSION O O 0 N N n n B W N D N O R N R N O N N N N N N m m e m = E e e e e m 0 ~ ~ O N W n R A W N = D O 0 0 N Y n n E W N O O ® ) o The TMDRP contains page numbers, the Acknowledgement does not’; o The Acknowledgement specifically references a document entitled: “Applied Medical Dispute Resolution Policy”, which is not the same title of the TMDRP (Applied Medical Corporation Team Member Dispute Resolution Policy); e The TMDREP issilent as to any separate acknowledgements and does not contain any space for signatures; e The TMDRP is undated while the Acknowledgementis dated. In light ofthese stark differences, the Acknowlegement and TMDRP wereclearly not part ofthe same document, as Defendant would suggest, nor do they appear to have come from the same place (i.e., Plaintiff’s personnelfile). Moreover, Defendants assertion that the TMDRP is the only dispute resolution policy it has ever “published, implemented and maintained” begs many questions as Plaintiff is aware of published authority regarding another version of Defendant’s arbitration provisions. In light of these serious inconsistencies, both present before the Fischer Decl. and dueto the Fischer Decl, it’s clear that Defendant has not and cannot show that Plaintiff agreed to its terms. III. CONCLUSION For the reasons set forth herein and in Plaintiff’s Opposition, the Court should deny Defendant’s Motion in its entirety. Dated: May 19, 2017 AEGIS LAW FIRM,PC Ali S. Carlsen Attorneys for Plaintiff I Plaintiff believes that Defendant added page numbers to the exhibits in the Fischer Decl. because they are not present in the Bonner Decl. -3- PLAINTIFF'S RESPONSE TO DEFENDANTS SUPPLEMENTAL SUBMISSION f k D N N N N N N N D N r e e m a m e e m e m k d e m me d p e 2 Q I X R E I R E Z T 2 3 F T E s N O c e N N N n n A W N 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 May 19, 2017, I served the foregoing document entitled: * PLAINTIFF'S RESPONSE TO DEFENDANT’S SUPPLEMENTAL SUBMISSION IN SUPPORT OF DEFENDANT’S MOTION TO COMPEL ARBITRATION on all the appearing and/or interested partiesin this action by placing [| the original [X] a true copy thereof enclosed in sealed envelope(s) addressed as follows: Steven M. Zadravecz Graham S.P. Hollis Edward S. Chang Marta Manus Jones Day Paloma Acosta 3161 Michelson Drive, Suite 800 GRAHAMHOLLIS APC Irvine, CA 92612 3555 Fifth Avenue San Diego, CA 92103 Attorneysfor Defendant: Applied Medical Resources Corporation Attorneysfor Sean Michael Sheehan [] (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. I 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).) Xx (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(b)(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 May 19, 2017, at Irvine, California. Kathys Alvarez CERTIFICATE OF SERVICE