David Zippin vs. Ten-X, LLCOppositionCal. Super. - 4th Dist.April 18, 2017wn BA W N Oo x 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 THE GILLAM LAW FIRM A Professional Law Corporation Carol L. Gillam (SBN 102354) Sara Heum (SBN 288136) ELECTRONICALLY FILED 10866 Wilshire Boulevard, Suite 400 Superior Court of Califomia, Los Angeles, California 90024 County of Orange Telephone: (310) 203-9977 13: Facsimile: (310) 203-9922 07/24/2017 at 09:13:00 Pu : : Clerk of the Superior Court carol@gillamlaw.com, sara@gillamlaw.com By & Clerk, Deputy Clerk Attorneys for Plaintiff David Zippin SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE DAVID ZIPPIN, an individual, Case No: 30-2017-00915357-CU-WT-CXC Plaintiff, [Assigned to Hon. William Claster, Dept. Vs. CX102] TEN-X, LLC, an entity, and DOES 1 through | PLAINTIFF’S OPPOSITION TO 25, inclusive, DEFENDANT’S MOTION TO COMPEL ARBITRATION AND/OR STAY Defendants. PROCEEDINGS Complaint filed: April 18,2017 Plaintiff DAVID ZIPPIN ("Plaintiff" or Mr. Zippin”) respectfully submits the following memorandum of points and authorities in Opposition to Defendant TEN-X, LLC’s (“Defendant™ or “Ten-X) motion to compel arbitration and/or stay proceedings. This opposition is based on the attached memorandum of points and authorities, the complete records and files in this action, and such other evidence and arguments as may be offered at or before a hearing on this matter. DATED: July 24, 2017. THE GILLAM LAW FIRM A Professional Law Corporation CAROL L. GILLAM SARA HEUM Attorneys for Plaintiff David Zippin i PLAINTIFF'S OPPOSITION TO MOTIONT TO COMPEL ARBITRATION ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 1 22 23 24 25 26 27 28 II. III. Table of Contents INTRODUCTION .....cootiiiiiiiintieeiie eects sete site sess eee 1 FACTS o sesses 1 SIR IMENT sen css cos suave amen sms seer mass sso son sees ees oss srs stor some ests goes 3 A. California Law Applies to the Alleged Arbitration Agreement NF 3 B. There Is No Valid Contract 10 BnfOree scm: ssmsssmes sss savas svwss sansa savas swans 4 I. Applicable Law ........cooiiiiiiiiiiiieeee cece eee eee ees 4 2. Ten-X is Not a Party to the Alleged Agreement............ccoecueeerueeeennnnen. 5 C. The Alleged Agreement is Unconscionable Under Both California and Federal Law ......ccuooiiiiiiiiieee teeters eee 7 1. The Contract is Procedurally Unconscionable..........c.cccceevvueeerineennnne. 7 2. The Alleged Agreement Is Substantively Unconscionable ................... 9 a. The Alleged Agreement is Vague as to the Parties Covered ...oo.oiniiii 10 b. The Alleged Agreement Requires Plaintiff to Relinquish His Rights to Bring Class and Representative Actions, includin Claims under PAGA, and only Gives the Company the Right to Seek Dismissal of such Actions in Court.............c...coviieenenn. 10 LL PAGAL... 10 i1. Class Waivers .............. (5 3 555 55 $5 655 HR FRR 5 SR 11 iii. Class Claims Brought in Court...........ccceeeveieeinnieinnieeeiiieenns 12 c. The Alleged Agreement Withholds Wages Unless the Et] CRE I GIT mos 0 wae 5 i 50 5 5 1 62 0 03 0 3 a BE 22 12 d. The Alleged Agreement is Vague as to the Geographic Location (0) LN 403 11 1510) | 12 e. The Alleged Agreement Forces Plaintiff to Relinquish Claims If He Does Not Serve the Other Party Within the Notice Period. ..........coviiiiiiiiii 13 f. The Alleged Agreement Forces Plaintiff to Be Liable for Fee and Costs Which He Might Not Otherwise Have to Pay in COUT... 3 g. The Alleged Agreement and Arbitration Process Does Not Provide for a Neutral Arbitrator. ............ccooooeviiiiiiiiinan 14 ii PLAINTIFFS OPPOSITION TO MOTION TO COMPEL ARBITRATION ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 1 22 23 24 25 26 27 28 IV. h. The Alleged Agreement Requires Plaintiff to Waive Fuaportan Rights, including a Right to Public Injunctive Relief... .. D. The Arbitration Agreement is Permeated with Unconscionability and May Not be Cured Through Severability, Reformation or NTETINVETTRBETIOTL 53 £5305 8 3 15 #5 503 055k 54 85 3 6 Bk 84 ck 35 Bk 4 303 Bid A 3 CONCLUSION 06000000006 000000000060000000000000060000000000000000000000000000000000000000000000sssssssssssss iil ot PLAINTIFFS OPPOSITION TO MOTION TO COMPEL ARBITRATION A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Table of Authorities Federal Cases AT&T Mobility LLC v. Concepcion (2011) 131 S.Ct. 1740 ..ccoiiiiiiiieiiieeeeeeeeeeeeeeeeeeee ee 7 Circuit City Stores, Inc. v. Adams (9th Cir. 2002) 279 F.3d 889......cooeveiiiieeieieeeee n, 8,13 Graham Oil Co. v. ARCO Products Co., a Div. of Atlantic Richfield Co. (Oth Cit. 1994) 43 FM TIAL oycvumsasssnn ensues soso 6500556555 16 s585m sam sms asas 15 Mitchell v. American Fair Credit Association, Inc. (2002) 99 Cal.App.4th 1345.........cccoenene. 5 Morris v. Ernst & Young, LLP (9th Cir. 2016) 834 F.3d O75...cccvvveeeieeeeieeeeeeee , 11,12 Perry v. Thomas (1987) 482 U.S. 483... eee e sabes 4 Sakkab v. Luxottica Retail of North America, Inc., (9th Cir. 2015) 803 F.3d 425 ..........cc......... 11 Stutler v. T.K. Constructors Inc. (6th Cir. 2006) 448 F.3d 343... 4 Totten v. Kellogg Brown & Root (C.D. Cal. 2016) 152 F.Supp.3d 1243 ......ccccoieiiiniienes 8, 11 State Cases Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal. Ath 83... eee ee passim Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237 .....cccovuiiiieeieie eee eee ee erases 9 Banner Entertainment, Inc. v. Superior Court (Alchemy Filmworks, Inc.) (1998) 62 Cal. APP.Ath B48... eee eee steer eeaesatesees ee beebeeaees 5 Brown v. Ralphs Grocery Co. (2011) 197 C.A4th 489........oviieeiiiieeeeee eects eee 11 Bruni v. Didion (2008) 160 Cal APDAth 1272 cvsmmsesursmmunsasssssmimnssssissasssmmnssssss a as se 8 Countrywide Financial Corp. v. Bundy (2010) 187 Cal. App.4th 234 ......ccccviiiiiiniiiniiieieeee 3 Cruz v. PacifiCare Health Systems, Inc., (20023) 30 Cal.4th 303 .......ccovieeiiiiieieeee cece, 15 Fitz v. NCR Corp. (2004) 118 Cal.App.4th 702 .....cccueiiiiiiieeiecieeteeee eect ee e eeees 9 Graham v. Scissor-Tail (1981) 28 Cal.3d 807 .......cocoirriiiiiie ieee eects ee ens 5 Harper v. Ultimo (2003) 113 Cal. App.4th 1402.......ooiiiiie ee eee 9 Higgins v. Superior Court (2006) 140 Cal. App.4th 1238.....ccciiiiiiiiiiiieeteeee ns 3 Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th 348...........cccooeeieeiieiieiiiieeeens 11 Jones v. Jacobson (2011) 195 Cal. APP.4th 1 o.oo eee eee 5 McGill v. Citibank (2017) 2 Cal.5th 945 ......oouiiiiiiee ee sees 15 iv PLAINTIFFS OPPOSITION TO MOTION TO COMPEL ARBITRATION A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 McManus v. CIBC World Markets Corp. (2003) 109 Cal. App.4th 76 .....cccoevvvvernneennne. 5,6,7,8 Metters v. Ralphs Grocery Co. (2008) 161 Cal.App.4th 696 ........cccoovviiiiiiiiiiiiiiieeeeeeeeee 4 Nedlloyd Lines B.V. v. Sup.Ct. (Seawinds Ltd.) (1992) 3 Cal.4th at p. 459.......cccovvieiviienniecnnnne. 3 Nelsen v. Legacy Partners Residential, Inc. (2012) 207 Cal. App.4th 1115.....ccccoviiiniinninnnne. 8 Nyulassy; 120 Cal App.Ath at 1ZET—1IBB.: cvumusssnsnusumwnnsusnsosonsunsussss sara sais seman 8,15 Sandguisi v. Lebo Automotive (2016) 1 Cal-Sth 233 ...comussmmssmmmmnsmsmamssmmesmms sss 5,6 Segal v. Silberstein (2007) 156 Cal. ApP.4th 626..........cooiiiiiiiiiiiiie ieee sees 3 Stirlen v. Supercuts, Inc. (1997) 51 CalLAPP.1519 coor 10, 13 Trivedi v. Curexo Technology Corp. (2010) 189 Cal. App.4th 387 ...ccoiuvviiiiiiniiiiiiineeeeen, 8,9 Wherry v. Award, Inc. (2011) 192 Cal. App.4th 1242 .....cooiiiiiiiiiie ee 15 Williams v. Sup. Ct. (Case No. S227228 July 13,2017) 2017 WL 2980258.......ccevviiiiiiiiiiiiinnen, 11 State Statutes Cal. CIV. COE § 1654... eee sete eee eae sb te sees be saa saee nee 3 Cal. Civ. Code §§ 1668, 3513... eesti steers este seas sa eee ena ens 11 Cal. Lab. Code § 2699(Q) .....uvuieiieieieeiiiiieieee cece ects ee essere area sees eter ae ease ee ee sb ar rer ae e ee ennaes 11 CCP. § 1281.2 eeee eee sate st ete ea tesa testes teeta eabe saa se eens 4 CCP. §8 1280—1294.2 cette eee steers sa eee estaba saa see ene 3 rt WS 1 CTT 6 CT Up 7 California Government Code §§ 12940(d), 12965(d)......cccciuirieiiiiiiieiiiieeeee ieee 13 Federal Statutes DU. SC. Gd. i eee 4 Other Authorities D. R. Horton, Inc. (2012) 357 NLRB 2277 cocoon eects eee essere aes 11 Restatement Second of Conflict of Laws § 187(2) ..ueuiieiiiiiiiiiiiiiiieie cece eee eee cece ean 3 Vv PLAINTIFFS OPPOSITION TO MOTION TO COMPEL ARBITRATION AN nn B W 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 Plaintiff DAVID ZIPPIN ("Plaintiff" or Mr. Zippin”) was an outstanding producer for Orange County-based Ten-X (“Defendant” or “Ten-X) for nearly five years until his wrongful termination in late 2016. He filed the instant lawsuit after Defendant engaged in discrimination, retaliation, and violations of the Labor Code, among other things. Plaintiff should not be compelled to arbitration because he does not have a valid contract with Defendant. Moreover, the Alleged Arbitration Agreement (“the Alleged Agreement”) is procedurally and substantively unconscionable under Armendariz and its progeny, and contains numerous unenforceable terms, such that severing any part of it would be improper, and it should be voided in its entirety. Plaintiff further claims that the class action and representative claims brought herein, including under the Private Attorneys General Act (“PAGA”) may not be compelled to arbitration in any event. Plaintiff further asserts that his claims for injunctive relief may not be compelled to arbitration. After various company documents specified that Plaintiff’s claims must be litigated under California law, Defendant now seeks to enforce an alleged arbitration agreement imposed upon Plaintiff under the threat of termination with claims to be governed under Florida law. Defendant should not be allowed to have its cake and eat it too.! II. FACTS Mr. Zippin began working as a Client Management Associate at Auction.com Commercial, LLC (“ADC Commercial”) in or around January 2012. In or around January 2013, Mr. Zippin was required to re-execute some of his employment documents with the entity Auction.com, LLC (“Auction.com”). [See Declaration of David Zippin (“Zippin Decl.”), 9 2- 3)]. In or around January 2014 he was promoted to Vice President in Business Development with Auction.com. In or around January 2016, Mr. Zippin was promoted to Senior Vice President with Auction.com. Mr. Zippin was never informed that he became an employee of Ten-X, only that Ten-X had become a new company brand in 2016. /d. In or around March 2016, Auction.com publicly announced a name change to Ten-X, LLC. Mr. Zippin did not receive any ! Plaintiff objects that Defendant significantly exceeded the page limitations set forth in CRC 3.1113 in its motion to compel arbitration. 1 PLAINTIFFS OPPOSITION TO MOTIONT TO COMPEL ARBITRATION ~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 paychecks from Ten-X prior to the first quarter of 2016. The website Auction.com still exists and its homepage says that it is “a Ten-X company.” Id. According to Defendant, Auction.com was owned by Ten-X, and Auction.com employees became Ten-X employees in January 2013. [See Decl. of Shirley Ng in Support of Defendant’s Motion to Compel Arbitration (“Ng Decl.”), [3-4]. In or around January 2015 Mr. Zippin received the Alleged Arbitration Agreement from Human Resources (“HR”), based in California. [Zippin Decl., 4]. The Alleged Agreement defined “Auction.com, LLC” as the “Company.” Mr. Zippin did not execute the Alleged Agreement upon receipt because he preferred to keep his right to a trial. Roughly a week after HR sent the Alleged Agreement, HR called Mr. Zippin asking for an executed copy. Id. Mr. Zippin inquired of HR as to whether he could make any alterations and was told no. HR told Mr. Zippin that if he did not sign the agreement, Ten-X could and would 1) withhold his already-earned commissions and 2) terminate him. HR also informed Mr. Zippin that the Alleged Agreement was for the benefit of all employees, and all employees had to execute it. Id. He could not negotiate or opt out of the arbitration agreement. The Alleged Agreement was presented on a take-it or leave-it basis, Mr. Zippin had no a fair opportunity to understand what he was signing, to ask questions, or to level the unequal bargaining position in which he was placed. Worried about losing his job, and under pressure from Auction.com, Mr. Zippin executed the Alleged Agreement electronically on January 22, 2015. He does not recall viewing any JAMS rules at the time of execution. /d. During the course of his employment, Mr. Zippin had repeated and regular contacts with his employer in California. [See Zippin Decl., 5]. Ten-X is headquartered in Irvine, California. The head of HR, Chris Galy, is located in northern California; the rest of the HR department is in Irvine, California. Mr. Zippin estimates that Defendant had hundreds of employees in California when he began working for ADC Commercial and over 1,000 at the time of his termination. He estimates that the remote Miami office housed fewer than 10 employees at the start of his employment and approximately 20 at his termination. When he began working for ADC Commercial, Mr. Zippin spent about a week in the Newport Beach office meeting colleagues, training, and onboarding. He periodically made complaints to HR, always in Irvine, California. Id. The supervisor about whom Mr. Zippin made 2 PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL ARBITRATION ~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 complaints, Gordon Smith, was based in California. Although Plaintiff was assigned to the small Miami office, he had clients all over the country. /d. Plaintiff flew out to Irvine 2-3 times a year to spend some time with executives and colleagues at the headquarters and to see clients of his in that market. Executives and HR in California made all the decisions regarding Plaintiff’s employment and termination; no one from the small Miami office could or did have input into that decision. /d. During the course of his employment, Defendant forced Mr. Zippin to execute several documents that contain California choice-of-law provisions. Id. at 6. On or about April 6, 2017, Defendant Ten-X filed and served a Demand for Arbitration with JAMS (“Ten-X Arbitration Demand”) wherein it claimed that Plaintiff was precluded from pursuing claims under the California Labor Code and the Fair Employment and Housing Act, even though Defendant itself specified California law in the various documents Mr. Zippin was required to sign. Id. Defendant Ten-X claims that it overpaid Plaintiff wages, and seeks to compel Plaintiff to repay them, something that is prohibited under California law. III. ARGUMENT A. California Law Applies to the Alleged Arbitration Agreement. The Alleged Agreement is governed by the California Arbitration Act (“CAA”) (Code Civ. Proc., §§ 1280-1294.2), not the Federal Arbitration Act (“FAA”). Federal law applies to arbitration provisions in valid contracts involving interstate commerce. Higgins v. Superior Court (2006) 140 Cal. App.4th 1238, 1247. However, the FAA does not allow for choosing a forum and law different from what is in the Alleged Arbitration Agreement. A valid choice-of- law clause, which provides that a specified body of law ‘governs' the ‘agreement’ between the parties, encompasses all causes of action arising from or related to that agreement. Restatement Second of Conflict of Laws § 187(2); Nedlloyd Lines B.V. v. Sup.Ct. (Seawinds Ltd.) (1992) 3 Cal.4th at p. 459, 468-470. Parties’ unambiguous agreements on choice of law should be enforced. Countrywide Financial Corp. v. Bundy (2010) 187 Cal.App.4th 234, 246-247. Throughout the course of his employment, Plaintiff executed many documents, all of which specified that California law applies regardless of conflict of law principles. Specifically: 3 PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL ARBITRATION ~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 e Paragraph 9 of the Proprietary Information and Inventions Alleged Agreement states that California law applies without regard to conflict of laws provisions. Paragraph 2 and the appendix cite California Labor Code Section 2870. [Ex. B]. e Paragraph 16 of the September 2015 Compensation Plan states that it will be construed and interpreted in accordance with the laws of the State of California without regard of the conflicts of law principles of such state. [Ex. C]. e Paragraph 13 of the 2016 Sales Commission Plan states that it will be construed and interpreted in accordance with the laws of the State of California without regard of the conflicts of law principles of such state. [Ex. D]. e Paragraph 4 of the Arbitration Alleged Agreement itself states that the arbitrator will have the power to award “all types of relief as may be afforded by a judge of a California Superior Court.” [Ex. A] e Paragraph 12 of the December 9, 2016, Separation Alleged Agreement Defendant presented to Plaintiff says it will be made, interpreted, enforced and governed under the law of California, with Orange County, California Superior Court as the exclusive venue for disputes thereunder (Plaintiff did not sign it). [Ex. E] Moreover, Plaintiff had repeated and regular contacts with Defendant in California, and made 2-3 trips per year here for work. Plaintiff reported to a California-based manager. He made complaints to HR in California. California executives and HR made all the decisions regarding Plaintiff’s employment and termination; no one from the small Miami office did. It would contravene all normal considerations to allow the company that drafted the documents and selected the forum to avoid its obligations under the law it chose because another state has a more favorable law of which it now seeks to avail itself. Ten-X unambiguously specified that California law would apply to any dispute between the Parties; it should not now be allowed to claim that the FAA or another law applies. Ten-X cannot be permitted to pick and choose aspects of agreements it imposes upon its employees to enforce while unilaterally seeking to avoid those it dislikes or finds inconvenient. B. There Is No Valid Contract to Enforce. 1. Applicable Law Whether the parties validly formed a contract is an issue that must be decided by a court. 9 U.S.C. § 4; Cal. Code Civ. Proc. § 1281.2. State contract law generally governs whether a valid agreement to arbitrate exists. Perry v. Thomas (1987) 482 U.S. 483, 492, fn. 9; Stutler v. T.K. Constructors Inc. (6th Cir. 2006) 448 F.3d 343, 347; Metters v. Ralphs Grocery Co. (2008) 161 Cal. App.4th 696, 701 (“federal policy in favor of arbitration does not come into play ... until a court has found the parties entered into a valid contract under state law”). The burden is 4 PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL ARBITRATION ~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 on the party seeking to compel arbitration to prove that there is actually a validly formed arbitration agreement. Banner Entertainment, Inc. v. Superior Court (Alchemy Filmworks, Inc.) (1998) 62 Cal.App.4th 348, 356-357. There is no public policy compelling people to arbitrate controversies they have not agreed to arbitrate. When the validity of the agreement is in dispute, arbitration agreements are neither favored nor disfavored, but instead placed on an equal footing with other contracts. Mitchell v. American Fair Credit Association, Inc. (2002) 99 Cal.App.4th 1345, 1355. A contract of adhesion is always construed against the drafter. In cases of uncertainty, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist. Cal. Civ. Code § 1654. It is well-settled law that: [t]he rule requiring resolution of ambiguities against the drafting party . . applies with peculiar force in the case of the contract of adhesion. Here the party of superior bargaining power not only prescribes the words of the instrument but the party who subscribes to it lacks the economic strength to change such language. Hence, any ambiguity in the contract should be resolved against the draftsman, and questions of doubtful interpretation should be construed in favor of the subscribing party. Sandquist v. Lebo Automotive (2016) 1 Cal.5th 233, 248, citing Graham v. Scissor-Tail (1981) 28 Cal.3d 807, 819, fn. 16.32. When an employee must consent to arbitration as a condition of employment, the agreement is an adhesion contract and procedurally unconscionable. McManus v. CIBC World Markets Corp. (2003) 109 Cal.App.4th 76, 101. 2. Ten-X Is Not a Party to The Alleged Agreement. Ten-X is not a party to the Alleged Agreement; nor is it a signatory; therefore, it may not enforce the Alleged Agreement. The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence. Jones v. Jacobson (2011) 195 Cal.App.4th 1, 18-19 (citing Segal v. Silberstein (2007) 156 Cal. App.4th 626, 633). Further, when a non-signatory seeks to enforce an arbitration agreement/provision against a signatory, the non-signatory bears the burden of establishing it is a party to the arbitration agreement/provision allegedly covering the dispute. Jones, 195 Cal. App.4th at 18-19. Even the strong public policy in favor of arbitration does not extend to those who are not parties to an arbitration agreement. Id. at 17. Only parties to an arbitration agreement can enforce it or be required to arbitrate (with limited exceptions not applicable here). Id. 5 PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL ARBITRATION ~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 There is no contract between Ten-X and Plaintiff. The disputed Alleged Agreement is between Plaintiff and Auction.com, LLC, the only entity defined as the “Company” in the Alleged Agreement. The definition does not provide for any parent corporations, successor corporations, subsidiaries, or separate entities to be beneficiaries of the Alleged Agreement. [See Ex. A]. Moreover, Ten-X has not established that it should be considered a party to the agreement; it offered nothing but a self-serving declaration. Notwithstanding the fact that Plaintiff has no agreement with Ten-X, Defendant may attempt to claim that it is a “Company-Affiliate” of Auction.com under the Alleged Agreement, a vague term used only in a recital clause at the beginning of the Alleged Agreement.” Because Mr. Zippin was forced to execute the Alleged Agreement to continue his employment with Defendant, the Alleged Agreement was a contract of adhesion. See McManus v. CIBC World Markets Corp. (2003) 109 Cal. App.4th 76, 101. Thus, the ambiguity must be resolved against the employer.’ Sandquist, supra at 248. Defendant admits that Ten-X and Auction.com were two separate entities, with Ten-X owning 50% of Auction.com, then later the entirety of Auction.com. [See Decl. of Shirley Ng filed with Def. Motion to Compel, q 3]. But by no stretch is Ten-X a subsidiary of Auction.com. It simply is not, and cannot be covered by the Alleged Agreement. Importantly, Paragraph 1 titled “Scope of the Agreement” limits its application to “any dispute arising out of or related to Employee’s employment with Company, or termination of employment . . . .” It does not include “Company-Affiliates.”* Furthermore, after claiming that Ten-X owned shares of Auction.com, Defendant makes the contradictory claim that Ten-X was formerly known as Auction.com, and that the entities are one and the same. [Ng. Decl., 4]. Defendant’s declaration offers nothing but conflicting information and should not be relied upon to uphold the Alleged Agreement. 2 It states that Auction.com, LLC is implementing a system of alternative dispute resolution. 3 The Alleged Agreement does not put Plaintiff on notice that he is bound to arbitrate his employment claims with any future entities when Auction.com ceases to exist, morphs into another entity, adopts a brand, or is acquired by other companies. A parenthetical says that Company-Affiliates “includes any employee” or “subsidiary” of the Company, among other things. 4 Also, for all we know, a “Company-Affiliate” could refer to a vendor, an internet service provider, a customer, or a restaurant that caters a company lunch. Such a vague term used solely in a recital clause should not be interpreted to include any dispute between Plaintiff and Ten-X. 6 PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL ARBITRATION ~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 C. The Alleged Agreement Is Unconscionable Under California and Federal Law. Even if the Court were to find that Ten-X is somehow a party to the Alleged Agreement, it is invalid because it is unconscionable. Defendant attempts to stretch the United States Supreme Court’s decision in AT&T Mobility LLC v. Concepcion (2011) 131 S.Ct. 1740, 1745-46 (“Concepcion”), to broadly preempt the California Supreme Court’s landmark decision in Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83 (“Armendariz”). But the Concepcion court simply addressed the narrow issue of whether consumer class action arbitration agreements were valid. In fact, under federal law, because arbitration agreements under the FAA are contracts, they are subject to the same defenses as any other contract -- which include fraud, duress, unconscionability and other general contract law defenses. See Concepcion, supra at 1745-46. The FAA savings clause permits the application of California’s contractual unconscionability law. Id.; 9 U.S.C. § 2; McManus, supra, 109 Cal.App.4th at 92. Under California law, “[i]f the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.” C.C.P. § 1670.5(a). Unconscionability has both procedural and substantive components, the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one- sided results. Armendariz, 24 Cal.4th at 114. A sliding scale is applied which requires less evidence of one element in proportion to the existence of a greater amount of evidence of other elements of unconscionability. Armendariz v. Foundation Health Psychcare Services, Inc., supra at 114. “In other words, the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” Id.; accord, Bruni v. Didion (2008) 160 Cal.App.4th 1272, 1288-1289.) 1. The Contract is Procedurally Unconscionable. Procedural unconscionability focuses on ““oppression’ or ‘surprise’ due to unequal bargaining power,” and concerns the manner in which the contract was negotiated and the 7 PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL ARBITRATION ~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 parties’ circumstances at that time. See Armendariz, 24 Cal.4th at 113-14. This element is generally satisfied if the agreement constitutes a contract of adhesion. See Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal. App. 4th 1267, 1280. “The oppression component arises from an inequality of bargaining power . . . and an absence of real negotiation or a meaningful choice on the part of the weaker party.” Id. at 1281. In Circuit City Stores, Inc. v. Adams (9th Cir. 2002) 279 F.3d 889, the court held that where the agreement was drafted by the employer with superior bargaining power, was not modifiable by the employee, and was a prerequisite to employment, the agreement was procedurally unconscionable. Id. at 893. Courts have long held that a non-negotiable contract of adhesion in the employment context is procedurally unconscionable. Armendariz, supra, at 115; Circuit City Stores at 893. When an employee must consent to arbitration as a condition of employment, the agreement is an adhesion contract and procedurally unconscionable. McManus, supra at 101. See, e.g., Trivedi v. Curexo Technology Corp. (2010) 189 Cal.App.4th 387, 393; Nelsen v. Legacy Partners Residential, Inc. (2012) 207 Cal.App.4th 1115; Totten v. Kellogg Brown & Root (C.D. Cal. 2016) 152 F.Supp.3d 1243. Defendant presented Plaintiff the contract on a take-it-or-leave-it basis. Plaintiff was given no opportunity to negotiate it; in fact, he was explicitly told by HR that he could not negotiate the terms and had to sign the contract. He was told that he would not receive his earned commissions and would be terminated if he did not sign. Mr. Zippin was left with no choice but to sign the agreement to maintain his employment and receive his rightfully earned wages. The Alleged Agreement provides that an employee must sign the agreement to be eligible to participate in the incentive compensation and bonus plans and receive “any future payment.” [Alleged Agreement, Ex. A, recitals]. HR also misleadingly told Plaintiff that the Alleged Agreement was for the benefit of employees. Second, the Alleged Agreement permitted Defendant to backdate the signature date, even though employees did not click on a link to view the JAMS rules. The agreement was sent electronically to employees, and for some reason the company affixed a signature date that was not the actual signature date for Mr. Zippin, but a date on which he had merely accessed the document. Defendant claims that an employee could not submit the document without clicking 8 PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL ARBITRATION ~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 on a link to JAMS rules; however, it appears employees could still sign the agreement without viewing those rules. [See Ng Decl., {{ 12-13, 23-24]. The Alleged Agreement is dated “1/14/2015” but contains a timestamp of “January 22, 2015.” By Defendant’s own admission, Mr. Zippin did not execute the agreement on January 14, but on January 22, 2015. The company’s backdating of the Alleged Agreement alone should render it unconscionable. Third, Defendant did not meaningfully provide Plaintiff a copy of the JAMS rules with the Alleged Agreement. Numerous cases have found that failure to provide a copy of the arbitration rules to which the employee would be bound contributes to procedural unconscionability. See, e.g., Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1246; Trivedi v. Curexo Technology Corp. (2010 189 Cal. App.4th 387, 393; Fitz v. NCR Corp. (2004) 118 Cal.App.4th 702, 721 (employer's arbitration agreement incorporated "arbitration rules that were not attached and require[d] the other party to go to another source in order to learn the full ramifications of the arbitration agreement"); Harper v. Ultimo (2003) 113 Cal.App.4th 1402, 1406-1407 ("inability to receive full relief is artfully hidden by merely referencing the Better Business Bureau arbitration rules, and not attaching those rules to the contract," forcing the customer to go to another source to learn the rules). Courts will more closely scrutinize the substantive unconscionability of terms that were “artfully hidden” by the simple expedient of incorporating them by reference rather than including them in or attaching them to the arbitration agreement.” Baltazar v. Forever 21, Inc., supra, 62 Cal.4th at 1246. Here, JAMS rules were not part of Alleged Agreement. Defendant claims employees had to click on a link to view the operative JAMS rules before executing the agreement (See Ng Decl. |. 13). This required employees to go to an outside source to view the rules. Plaintiff does not recall accessing these rules. Also, the contract itself says JAMS may modify its rules over time. Thus, the Alleged Agreement effectively tries to bind Plaintiff to future rules that could be modified without his consent. Merely providing a link to an employee to click on to view rules does not satisfy Defendant’s obligation to provide the employee with the operative JAMS rules. For these reasons, the Alleged Agreement is procedurally unconscionable. 2. The Alleged Agreement is Substantively Unconscionable. Substantive unconscionability exists when a contract imposes unduly harsh, 9 PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL ARBITRATION ~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 oppressive, or one-sided terms. Armendariz, 24 Cal.4th at 113. “[P]rovisions of arbitration agreements unduly advantageous to one party at the expense of the other will not be judicially enforced.” Stirlin v. Supercuts, Inc. (1997) 51 Cal. App.4th 1519, 1541. Given the overwhelming evidence of procedural unsconscionability, only a minimal showing of substantial unconscionability is required to invalidate the arbitration provision. See id. at 114 (“(T)he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.”). a. The Alleged Agreement is vague as to the parties covered. First, as discussed supra, section B(2), incorporated herein by reference, the Alleged Agreement is completely vague and ambiguous as to the parties covered by it. The Alleged Agreement appears to be between “Employee” and “Company,” but those terms are never really defined. In addition, the agreement confusingly says in its recitals that the Company is implementing dispute resolution “between the Company and the Employee or between the Employee and any Company-Affiliates.” [Ex. A, Alleged Agreement, recitals] (emphasis added). This does not put employees on notice regarding who the other parties are. “Company-Affiliates” is certainly a meaningless term; it would surprise any employee were they to find out they are bound to arbitrate claims with companies not yet in existence. Ten- X was not yet in existence when Mr. Zippin joined the company, or when he signed the Alleged Agreement. To now sweep it into the Alleged Agreement as a covered party is oppressive and shocking. Also, the term “Company-Affiliates” is undefined, contained in a recital only, and is followed by a parenthetical that says it includes a “subsidiary” of the Company, among other things. Defendant admits that Ten-X is not a subsidiary of Auction.com. Moreover, the Scope clause does not include “Company-Affiliates.” The only place the term appears is in the recital clause at the beginning of the document. [See Ng Decl., 3]. b. The Alleged Agreement requires Plaintiff to relinquish his rights to bring class and representative actions, including claims under PAGA, and only gives the Company the right to seek dismissal of such actions in court. i. PAGA Where an employment agreement compels the waiver of an employee's right to bring a representative Private Attorney General Act (PAGA) action, the waiver is contrary to public 10 PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL ARBITRATION ~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 policy and unenforceable as a matter of state law. See Cal. Lab. Code § 2699(a); Cal. Civ. Code $8 1668, 3513. PAGA waivers have been held to be unenforceable under California law. An individual employee may not be compelled to arbitrate his or her PAGA claim. Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348; Sakkab v. Luxottica Retail of North America, Inc. (9th Cir. 2015) 803 F.3d 425; see also Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489, 503 (Concepcion does not apply to representative actions under PAGA; actions under PAGA enforce state labor laws for benefit of public and are distinguishable from commercial agreements at issue in Concepcion).’ Paragraph 2(c) of the Alleged Agreement prohibits Plaintiff from bringing a “private attorney general claim.” This term is per se unenforceable and renders the Alleged Agreement substantively unconscionable. ii. Class waivers Furthermore, Plaintiff has a substantive right under the National Labor Relations Act (NLRA) to pursue his claims collectively and any employer attempt to prevent him from doing so is not only unenforceable but substantively illegal. Paragraph 2(c) of the Alleged Agreement prohibits Plaintiff from bringing a “class or collective action,” even in arbitration. The Alleged Agreement also says that “the class and collective action waiver contained in this section 2 shall not be severable from this Agreement.” In Morris v. Ernst & Young, LLP (9th Cir. 2016) 834 F.3d 975, the Ninth Circuit held that an employer which requires its employees as a condition of employment to enter into waivers of their rights to pursue class-based remedies violates Sections 7 and 8(a)(1) of the NLRA by interfering with employee rights to engage in “concerted” activity. Id. at 983-4. This reinforces the NLRB decision in In Re D. R. Horton, Inc. (2012) 357 NLRB 2277 that class and collective action waivers in employment contracts violate the NLRA. Accordingly, Defendant cannot require Plaintiff to waive his rights to pursue a class action as a condition of employment, as to do so would violate federal labor law prohibiting interference with the exercise of these > The California Supreme Court recently reiterated the state’s public interest in keeping PAGA a vigorous enforcement tool. Williams v. Sup. Ct. (Case No. S227228 July 13, 2017) 2017 WL 2980258. 11 PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL ARBITRATION ~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 legal rights. See Morris, 834 F.3d at 984; Totten v. Kellogg Brown & Root (C.D. Cal. 2016) 152 F.Supp.3d 1243. iii. Class claims brought in court The paragraph 2(c) class and representative action waiver renders the Alleged Agreement fundamentally one-sided. First, class and representative claims are certain to be claims brought only by employees. Second, the clause only gives Defendant the right to seek to dismiss class claims brought in court. The clause does not permit the employee to seek such dismissal. ¢. The Alleged Agreement withholds wages unless the employee signs. The introductory paragraph of the Alleged Agreement warns that the employee will not be eligible to receive incentive compensation or bonus payments if he fails to sign. Because Plaintiff’s compensation plan provides that payment for earned commissions does not occur until months after the employee has done everything necessary to procure the sale. The company can claim that it can withhold commissions totaling many thousands of dollars because an employee failed to sign the Alleged Agreement. (See Ex. D, § 7, titled “Timing of Commission Compensation Payments). Rather than reciting continued employment as consideration, the contract goes too far and purports that “any future payment” is consideration for the Alleged Agreement. Withholding future payments an employee has already earned is substantively unconscionable and a blatant violation of the laws of California and Florida. d. The Alleged Agreement is vague as to the geographic location of arbitration. Paragraph 2(b) in the Alleged Agreement provides that arbitration will be held in the “general geographical vicinity of the place of employment where the Employee last worked.” It makes no reference to a state or city. This renders the clause subject to abuse because the company may claim a state or city is “within the vicinity” when it really is not. It does not permit Plaintiff to select the venue. Plaintiff knows all the key corporate officers (and most of the witnesses) are in California. This does not give Plaintiff proper notice of where his claims could be litigated and limits his rights. e. The Alleged Agreement forces Plaintiff to relinquish claims if he does not serve the other party within the notice period. ® The United States Supreme Court recently granted certiorari in Morris, D.R. Horton and a third case and will hear argument on this issue next term. 12 PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL ARBITRATION ~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 Paragraph 2(a) requires that the employee to timely serve written notice of his claims “within the required limitations period for the applicable federal and state law,” otherwise the employee will waive his rights. Such clauses have been found unconscionable. See Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.1519 (imposing a one year statute of limitations and waiving rights upon failure to request arbitration within prescribed time period); Circuit City Stores, Inc. v. Adams (9th Cir. 2002) 279 F.3d 889 (one year statute of limitations unenforceable under FEHA). This clause disregards California statute of limitations rules, which the parties in their various agreements had agreed would apply. California’s Fair Employment and Housing Act (FEHA) allows one year from the date of the unlawful action to file a claim with the Department of Fair Employment and Housing (DFEH) and then one year to file in civil court when the DFEH issues a right-to-sue letter. California Government Code §§ 12940(d), 12965(d). Therefore, requiring Plaintiff to give written notice within the statute of limitations time periods hinders his rights under FEHA. f. The Alleged Agreement forces Plaintiff to be liable for fees and costs which he might not otherwise have to pay in court. An arbitration agreement must not require employees to pay either unreasonable costs or any arbitrators’ fees or expenses as a condition of access to the arbitration forum. Armendariz, 24 Cal.4th at 102. The Alleged Agreement is substantively unconscionable because it fails to ensure that Plaintiff will not pay expenses that he would otherwise not be required to pay in court. While paragraph 5 of the Alleged Agreement provides that the employee is not responsible for the arbitrator’s fees, the JAMS rules do not provide such protection. Rule 31(c) states that the parties are jointly and severally liable for the payment of JAMS arbitration fees and expenses (if the arbitrator happens to find that the agreement required was not a condition of employment). It also provides for a JAMS Case Management Fee. [Ex. G, JAMS Rule 31]. Thus, Plaintiff is required to cover a unique fee, and if Defendant does not hold up its end of the bargain and cover arbitration fees, an employee could be on the hook for arbitration expenses. Furthermore, Paragraph 5 of the Alleged Agreement contains a provision that parties will pay their own attorneys’ fees “subject to any remedies to which that Party may later be entitled under applicable law.” While Defendant is bound by California law pursuant to its own employment documents and agreements, even the clause does not provide sufficient assurances 13 PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL ARBITRATION ~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 that California law regarding attorneys’ fees and costs must be applied. It does not provide adequately protect Plaintiff's right to recover fees and costs should he prevail on claims entitling him to such relief. Further, it could subject Plaintiff to paying attorneys’ fees under a prevailing party statute should Defendant prevail. Paragraph 5 places requires Plaintiff to bear greater risk of having to pay fees that he would otherwise not have to pay in trial, and therefore it is unconscionable. g. The Alleged Agreement and arbitration process does not provide for a neutral arbitrator. The Alleged Agreement does not provide a mechanism for the selection of a neutral arbitrator. See Armendariz, 24 Cal.4th at 102. The Alleged Agreement states in paragraph 2(c) that a party shall file a demand for arbitration with JAMS as “a neutral arbitrator.” It does not assure Plaintiff a right to a neutral arbitrator, nor is JAMS itself necessarily a neutral arbitrator. Defendant and its various former and current entities may have brought numerous cases before JAMS. Furthermore, JAMS Rule 15 permits JAMS to provide the parties a list of arbitrators to choose from. It also permits JAMS to appoint an arbitrator if a party does not respond within seven calendar days regarding arbitrator candidates. [Ex. G, JAMS Rule 15]. However, this is not sufficient to provide for a neutral arbitrator because there is no indication that the list will only consist of neutral persons and there appears to be no provision that plaintiff will have the right to reject the last remaining person from the list if that person (and all others) are not neutral. The list could contain all or almost-all pro-defendant arbitrators, guaranteeing that the arbitrator selected would be pro-defendant. In fact, Defendant already served a demand for arbitration and JAMS refused to stay the arbitration pending an order on defendant’s motion to compel arbitration. Plaintiff did not want to participate in the arbitration when he had filed a complaint in Superior Court and JAMS thereafter actually assigned an arbitrator that Plaintiff had no input selecting. [See Declaration of Sara Heum]. Thus, the Alleged] Agreement and the ensuing process has foreclosed Plaintiff’s ability to participate in selecting a neutral arbitrator. h. The Alleged Agreement requires Plaintiff to waive important rights, including a right to public injunctive relief. Notwithstanding the FAA, an arbitration provision that waives the right to seek public injunctive relief in any forum contravenes California public policy and is unenforceable. See 14 PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL ARBITRATION ~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 McGill v. Citibank (2017) 2 Cal.5th 945; Cruz v. PacifiCare Health Systems, Inc. (2002) 30 Cal.4th 303. The Alleged Agreement does not make any exception for the employee to seek public injunctive relief. Instead it requires that under paragraph 1 all disputes will be subject to arbitration. While paragraph 3 references injunctive relief, the clause only pertains to enforcement of the arbitration award. This provision is unconscionable. D. The Arbitration Agreement is Permeated with Unconscionability and May Not be Cured through Severability, Reformation or Augmentation. Where, as here, an arbitration agreement contains numerous unconscionable provisions, severance cannot save it. Graham Oil Co. v. ARCO Products Co., a Div. of Atlantic Richfield Co. (9th Cir. 1994) 43 F.3d 1244, 1248 (various provisions not severable where agreement established a unified procedure for handling all disputes, and its various unlawful provisions were all a part of that overall procedure). A court’s power to reform an arbitration agreement is “limited to instances in which parties make mistakes, not to correct illegal provisions.” Armendariz, 24 Cal.4th at 125. The Armendariz court stated that “if the central purpose of the contract is tainted with illegality, then the contract as a whole cannot be enforced” since “multiple defects [in an agreement] indicate a systematic effort to impose arbitration on an employee not simply as an alternative to litigation, but as an inferior forum that works to the employer’s advantage.” Id. at 124; see also Wherry v. Award, Inc. (2011) 192 Cal.App.4th 1242. Where there are multiple provisions in an arbitration agreement rendering it unconscionable, and the unconscionable taint cannot be removed by striking just one offending provision, severance is inappropriate and the agreement is unenforceable. Nyulassy, supra, 120 Cal.App.4th at 1287— 1288. The number of unconscionable provisions in the Alleged Agreement illustrates a systematic effort by Defendant to gain an advantage over employees. Each factor, standing on its own, provides sufficient ground for the Court to deny Defendant’s motion to compel arbitration. Together, the unconscionable provisions are so numerous that they permeate the entire agreement and render it unenforceable. 1" In 1" 15 PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL ARBITRATION wm RA L N Oo ce 9 10 11 12 13 14 15 16 17 18 19 20 zl 22 23 24 25 26 27 28 IV. CONCLUSION For all the foregoing reasons, Plaintiff respectfully requests that the Court find the Alleged Arbitration Agreement unenforceable, and deny Defendant’s motion to compel arbitration. DATED: July 24, 2017. 16 THE GILLAM LAW FIRM A Professional o Law Corpora ation Kiam CAROL L. GILLAM SARA HEUM Attorneys for Plaintiff David Zippin PLAINTIFF'S OPPOSITION TO MOTION TO COMPEL ARBITRATION 0 3 Oo 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Zippinv. Ten-X, LLC Case No.: 30-2017-00915357-CU-WT-CXC PROOF OF SERVICE I, the undersigned, declare that I am over the age of eighteen years, employed in the County of Los Angeles and not a party to the above-entitled cause; my business address is THE GILLAM LAW FIRM, P.C., 10866 Wilshire Blvd, Suite 400, Los Angeles CA 90024. On July 24, 2017, I served a true and correct copy of the following document(s) described as: PLAINTIFE’S OPPOSITION TO DEFENDANT’S MOTION TO COMPEL ARBITRATION AND/OR STAY PROCEEDINGS DECLARATION OF SARA HEUM IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT’S MOTION TO COMPEL ARBITRATION AND/OR STAY PROCEEDINGS DECLARATION OF DAVID ZIPPIN IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL ARBITRATION AND/OR STAY PROCEEDINGS on the below interested parties in this action: Stacey E. James Aaron J. Reed Littler Mendelson P.C. Littler Mendelson P.C. 501 West Broadway, Suite 900 333 SE 2ND Ave., Suite 2700 San Diego, CA 92101 Miami, FL 33131 Telephone: (619) 515-1865 AReed@littler.com Facsimile: (619) 232-4302 sjames@littler.com Attorneys for Defendant Ten-X [X] (BY MAIL)I enclosed the document(s) in a sealed envelope or package addressed to Mr. Reed, with first class postage thereon fully prepaid, to be placed in the United States mail at Los Angeles, California. 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. [ X] (BY OVERNIGHT COURIER) I enclosed the document(s) in a sealed envelope or package addressed to Ms. James at the addresses listed above and caused such envelope to be delivered by courier service guaranteeing next business day delivery to the office of the addressee(s) noted above. [ X] (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on July 24, 2017 at Los Angeles, California. Jynita Fernandez = PROOF OF SERVICE
