Jose Juan Gonzalez vs. Santa Ana Creek Development

Opposition

Cal. Super. - 4th Dist.May 19, 2017

Y; Yo Os EF IA N Ir La w Fi rm ,e c. 13 5 S O U T H J A C K S O N ST RE ET , SU IT E 20 3 O O N N YN Un bs W N - = = ea Ww NN = D G L E N D A L E , C A L I F O R N I A 91 20 5 D O N R N N N N N N mm m m em em © NN a nv RE W N = SS © © u a wn Ronald Yoosefian, Esq. (SBN 270215) Susana Oganesian, Esq. (SBN 313893) Serop Agadzhanyan, Esq. (SBN 315066) YOOSEFIAN LAW FIRM, P.C. ELECTRONICALLY FILED Superior Court of California, 135 South Jackson Street, Suite 203 County of Orange Glendale, California 91205 Telephone: (818) 275-1529 Facsimile: (818) 275-1747 Attorneys for Plaintiff, JOSE JUAN GONZALEZ 0942017 at 03:13:00 PM Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE JOSE JUAN GONZALEZ, an Case No.: 30-2017-00921481-CU-OE-CJC individual, . Plaintiff, a Hon. Sheila Fell SANTA ANA CREEK DEVELOPMENT | PLAINTIFF JOSE JUAN GONZALEZ’S dba MARK COMPANY, a California OPPOSITION TO DEFENDANT’S MOTION corporation; and DOES 1 - 50, inclusive, | TO COMPEL ARBITRATION Defendants. /1] 111 /11 111 /1/ 111 Ivy /11 [11 /11 1 PLAINTIFF JOSE JUAN GONZALEZ’S OPPOSITION TO DEFENDANT’S MOTION TO COMPEL ARBITRATION Y Yo os er ia N ir La w Fi rm p c. 13 5 S O U T H J A C K S O N S T R E E T , S U I T E 20 3 O e N Y Ln RA W w N G L E N D A L E , C A L I F O R N I A 9 1 2 0 5 N o N o N a N o N o N o NN ) N o N o pe t - - - [n i - -_ -_ -_ -_ c o | AN hh + Ww No - oO \ O c o ~J AN wh N wo \] - << Plaintiff, Jose Juan Gonzalez (“Plaintiff”) submits the following memorandum of points and authorities in support of its Opposition to Defendant’s, Santa Ana Creek Development Company dba Mark Company’s, motion to compel arbitration: L INTRODUCTION Plaintiff filed this action on May 19, 2017 against Defendant, Santa Ana Creek Development dba Mark Company, for violations of the California Labor Code arising out of his employment with Defendant. Defendant, Santa Ana Creek Development dba Mark Company, filed its Motion to Compel Arbitration on July 12, 2017, alleging that Plaintiff entered into a binding arbitration agreement with Defendant, which covers all causes of - asserted by Plaintiff in his Complaint because they arise out of his employment with Defendant. However, the arbitration agreement entered into by Plaintiff and Defendant is invalid because it is unconscionable, ambiguous, and vague. Therefore, based on the foregoing, Plaintiff cannot be compelled to arbitrate his claims against Defendant. IL STATEMENT OF FACTS On or about July 13, 2015, Defendant hired Plaintiff as a full time Mechanic Assistant. On or about October 7, 2015, during the course and scope of his employment with Defendant, Plaintiff suffered serious injuries to his: left thigh, left knee, and radiating pain to his left foot. Immediately following his aforementioned injuries, Plaintiff notified Defendant and requested reasonable working accommodations to help relieve the pressures on his leg(s) and pain throughout his lower extremities. However, Plaintiff’s pleas and formal requests were dismissed. Following this incident, and upon Defendant being notified of Plaintiff's medical condition(s), Defendant retaliated against Plaintiff by reducing Plaintiff’s working hours and disallowing Plaintiff from taking uninterrupted meal and rest breaks to help relieve the ongoing pressure and ailments to his lower extremities. Moreover, following Plaintiff’s injury, Defendant mandated that Plaintiff acquire more strenuous tasks and physical responsibilities, all with ill- intent to have Plaintiff voluntarily resign. I 2 PLAINTIFF JOSE JUAN GONZALEZ’S OPPOSITION TO DEFENDANT’S MOTION TO COMPEL ARBITRATION Yi Yo os eF IA N ir La w Fi rm , ec . 13 5 S O U T H J A C K S O N ST RE ET , SU IT E 20 3 O© 0 ~ & Wn bh W O N em G L E N D A L E , C A L I F O R N I A 9 1 2 0 5 NN NY nN NN No nN NY [\ ®] nN -_ pt - - p- - - - - - oe ~ J aN wh +B Ww n o - << \O oo ~ a wh SH 2 No - oo On or about December 21, 2015, Plaintiff filed a workers’ compensation claim for his injuries. Following Plaintiff’s filing of his workers’ compensation claim, on or about January 29, 2016, Plaintiff was called into his immediate supervisor’s office. Once there, Plaintiff was wrongfully questioned and interrogated regarding the workers’ compensation claim that Plaintiff had filed. Defendant threatened Plaintiff with employment termination if Plaintiff failed to disclose the particular facts and circumstances regarding his workers’ compensation claim. In contest, Plaintiff stated that he could not provide such information, as Plaintiff’s claim was ongoing and was relatively confidential information. As a result of the aforementioned, and the severity of Plaintiff's ongoing physical ailments, Defendant became infuriated with Plaintiff and terminated his employment on or about January 29, 2016. Defendant failed to prevent the harassment and discrimination suffered by Plaintiff, and in retaliation against Plaintiff’s complaints about his treatment and Plaintiff filing his workers’ compensation claim, Defendant fired Plaintiff. In addition, Defendant failed to properly compensate Plaintiff by not paying him compensation for overtime hours worked, nor meal and rest break premiums for such periods of time that Plaintiff worked. HI. LEGAL STANDARD A. Courts Have Discretion to Invalidate Unconscionable Arbitration Agreements Under Federal and California Law Arbitration agreements are contracts. (See Cal. Civ. Proc. Code (“C.C.P.”) § 1281 (“A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.”)) When grounds “exist at law or in equity for the revocation of any contract,” courts may decline to enforce such agreements. (See Doctor ’s Assocs., Inc. v. Casarotto (1996) 517 U.S. 681, 683; Ferguson v. Countrywide Credit Indus., Inc. (9th Cir. 2002) 298 F.3d 778, 782.) 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, 3 PLAINTIFF JOSE JUAN GONZALEZ’S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL ARBITRATION Y YO OS EF IA N ir La w Fi rm , rc. 13 5 S O U T H J A C K S O N ST RE ET , SU IT E 20 3 Lo 0 N S N BR W N = G L E N D A L E , C A L I F O R N I A 9 1 2 0 5 No Ny ND No rN N o N o ro hs -_ - - - yo ud - - - - ~] aN w n NN [¥ %) [\ ] -_ o \ O co ~ J aN [9 EN w \] - o No 0 or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.” C.C.P. § 1670.5(a). Even under federal law, because arbitration agreements under the Federal Arbitration Act (“FAA”) are contracts, they are subject to the same defenses as any other contract which include fraud, duress, unconscionability or other general contract law defenses. (See AT&T Mobility LLC v. Concepcion (2011) 131 S.Ct. 1740, 1745-46 (“Concepcion™.) As a preliminary matter, in its moving papers, Defendant attempts to stretch and contort the United States Supreme Court’s decision in 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”). Under Defendant’s theory, all arbitration agreements are now enforceable in California under the FAA no matter how unconscionable they may be. Defendant’s assertions lack legal foundation. The Concepcion Court simply addressed the narrow issue of whether consumer class action arbitration agreements were valid. In fact, the U.S. Supreme Court in Concepcion stated explicitly that “[t]he final phrase of § 2 [of the FAA] however, permits arbitration agreements to be declared unenforceable ‘upon such grounds as exist at law or in equity for the revocation of any contract.” This saving clause permits agreements to arbitrate to be invalidated by ‘generally acceptable contract defenses, such as fraud, duress, or unconscionability.”” 131 S.Ct. at 1746. Moreover, a California appellate court recently rejected this precise argument in Mission Viejo Emergency Medical Associates v. Beta Healthcare Group (2011) 197 Cal. App.4th 1146, 1158 n.4: We invited the parties to provide their comments on the recent United States Supreme Court case, AT&T Mobility LLC v. Concepcion (2011) -U.S. -- - , 131 S.Ct. 1740, 179 L.Ed.2d 742 (AT&T). Defendants appear to argue that AT&T essentially preempts all California law relating to unconscionability. We disagree, as the case simply does not go that far. General state law doctrine pertaining to unconscionability is preserved unless it involves a defense that applies “only to arbitration or that derive[s] [its] meaning from the fact that an agreement to arbitrate is at issue.” (Id. at p. - -, 131 S.Ct. at p. 1746.) This simply does not apply here. Therefore, under current California law, “arbitration agreements are neither favored nor disfavored, but simply placed on an equal footing with other contracts.” Armendariz, 24 Cal 4th 4 PLAINTIFF JOSE JUAN GONZALEZ’S OPPOSITION TO DEFENDANT’S MOTION TO COMPEL ARBITRATION Yi Yo os er IA N Ir La w Fi rm e c. 13 5 S O U T H J A C K S O N S T R E E T , S U I T E 20 3 v e N a N U n BR W N G L E N D A L E , C A L I F O R N I A 91 20 5 No b o No No No No No ro -_- [ a -_ - - - ps - -_ - ~ J aN Wn = Ww N o - oO Oo o o ~ J aN 9) ~ Ww N o - o BD oo at 127. B. Defendant’s Arbitration Agreement Is Unenforceable Because It Is Procedurally And Substantively Unconscionable The arbitration agreements in the present case, considered as a whole, are unenforceable because they are both procedurally and substantively unconscionable. Therefore, the proper remedy is to strike down the entire agreement, rather than modifying it to eliminate improper provisions. (See, e.g., Stirlen, supra, 51 Cal. App.4th, at 1532 (court rejects arbitration agreement entirely, rather than modifying the agreement to eliminate improper restrictions on remedies); Patterson, supra, 14 Cal.App.4th, at 1667 (court refuses to enforce arbitration provision entirely rather than simply strike out Minnesota forum provision); Graham Oil v. Arco (9th Cir. 1994) 43 F.3d 1244, 1248 (where multiple provisions of an arbitration clause are improper, court refuses to modify the language so as to remove offending limitations on remedies and strikes down the entire clause.)) As Defendant correctly points out, the California Supreme Court identified “minimum requirements” for arbitration of claims under the Fair Employment and Housing Act (“FEHA”), Cal. Gov. Code § 12900, ef seq., and determined that arbitration agreements must not be procedurally or substantively unconscionable. The Armendariz Court, in emphasizing its goal to “ensure that such agreements are not used as a means of effectively curtailing an employee’s FEHA rights,” held that: [Ulnconscionability has both a ‘procedural’ and a ‘substantive’ element, the former focusing on ‘oppression’ or ‘surprise’ due to unequal bargaining power, the latter on ‘overly harsh’ or ‘one-sided’ results. The prevailing view is that [procedural and substantive unconscionability] must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability. But they need not be present in the same degree. Essentially a sliding scale is invoked which disregards the regularity of the procedural process of the contract formation, that creates the terms, in proportion to the greater harshness or unreasonableness of the substantive terms themselves. 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. 24 Cal .4th at 114 (citations omitted). Procedural and substantive unconscionability need not be present in the same degree. (See Mercuro v. Sup.Ct. (Countrywide Secur. Corp.) (2002) 96 5 PLAINTIFF JOSE JUAN GONZALEZ’S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL ARBITRATION Y Yo os er IA N i r L a w F i r m ec . 13 5 S O U T H J A C K S O N ST RE ET , SU IT E 20 3 O e NN nn A GL EN DA LE , CA LI FO RN IA 91 20 5 I BX R V I R E T x I o x 2 3 0 0 2 5 Cal. App.4th 167, 174-75 (given employer’s highly oppressive conduct in obtaining employee’s consent to arbitration agreement, employee was required to make only minimal showing of substantive unconscionability.)) As is the case and based on the foregoing, there is substantial evidence of both procedural and substantive unconscionability in connection with Defendant’s arbitration provision. IV. DISCUSSION A. Defendant’s Arbitration Provision 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 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. “When the weaker party is presented the clause and told to “take it or leave it” without the opportunity for meaningful negotiation, oppression, and therefore procedural unconscionability, are present.” (Szetela v. Discover Bank (2002) 97 Cal.App.4th 1094, 1100; See also Samaniego v. Empire Today LLC (2012) 205 Cal.App.4th 1138, 1145-46 (finding procedural unconscionability where employee was presented arbitration provision as a condition of employment, with little time to review the contract, which did not include a copy of the relevant arbitration rules.)) A “meaningful opportunity” to negotiate or reject the terms of a contract requires, at a minimum, that a party have “reasonable notice of (the) opportunity to negotiate or reject the terms of a contract, and . . . an actual, meaningful, and reasonable choice to exercise that discretion.” (Circuit City Stores, Inc. v. Mantor (9th Cir. 2003) 335 F.3d 1101, 1106.) 1. Defendant’s Arbitration Provision Is A Contract of Adhesion and therefore, Procedurally Unconscionable First, it is undisputed that the arbitration provision relied on by Defendant is buried in pre-printed, standardized contracts created by Defendant and imposed on Plaintiff and 6 PLAINTIFF JOSE JUAN GONZALEZ’S OPPOSITION TO DEFENDANT’S MOTION TO COMPEL ARBITRATION Yi r Yo os er ia N Ir La w Fi rm e c. 13 5 S O U T H J A C K S O N ST RE ET , SU IT E 20 3 wn t BA W N - O 2 0 N Y b t f d Ww No G L E N D A L E , C A L I F O R N I A 91 20 5 N O R N O N O N N N N R = = m m e e N a L A W N e S 0 NN N n A No co Defendant’s other employees, without any opportunity for discussion or negotiation. Defendant’s arbitration provision constitutes a per se contract of adhesion: “Procedural unconscionability turns on adhesiveness - a set of circumstances in which the weaker or ‘adhering’ party is presented a contract drafted by the stronger party on a take it or leave it || basis.” (Mercuro v. Superior. Ct. (2002) 96 Cal. App.4th 167, 174.) When an employee is required to consent to arbitration as a condition of employment with no opportunity to negotiate, the agreement is procedurally unconscionable. (See Armendariz, 24 Cal.4th at 114-15.) In Armendariz, the Court held that the arbitration agreements that plaintiffs had signed as a condition of employment were procedurally unconscionable: [I]n case of pre-employment arbitration contracts, the economic pressure exerted by the employer on all but the most sought after employees may be particularly acute, for the arbitration agreement stands between the employee and necessary employment, and few employees are in a position to refuse a job because of an arbitration agreement. Id. at 115. Here, Plaintiff had not seen nor had been verbally told the conditions and terms contained in the Comprehensive Agreement, prior to and during his employment with Defendant. When signing other documents presented by Defendant, Plaintiff was never informed, nor was Plaintiff aware, that Plaintiff was signing an “arbitration agreement.” Plaintiff did not have a proper nor reasonable opportunity to review the documents, including the arbitration agreement, or to consult with an attorney prior to signing them. No one from Defendant explained the documents to Plaintiff; in actuality, Plaintiff had never seen the Comprehensive Agreement, nor was provided any information regarding the terms and conditions contained therein. Equally important is the fact that Defendant did not inform Plaintiff that he was waiving an important constitutional right - a right to a trial by jury. Nor did Plaintiff have any opportunity or power to negotiate or reject any of the terms of the arbitration provision, which were buried in pre-printed, standard forms. No form presented by Defendant in support of its Motion provides Plaintiff with any choice to reject arbitration. As such, the arbitration agreement constitutes an adhesion contract because they are part of standardized forms, drafted and imposed by a party of superior bargaining strength, and 7 PLAINTIFF JOSE JUAN GONZALEZ’S OPPOSITION TO DEFENDANT’S MOTION TO COMPEL ARBITRATION Y Yo os er ia N i r L a w Fi rm , ac . 13 5 S O U T H J A C K S O N S T R E E T , S U I T E 20 3 o R N N BA W N G L E N D A L E , C A L I F O R N I A 9 1 2 0 5 No No nN No ND No NN No - p e - fo m - Jov i - - - - ~ J o N wn F N Ww N o - << \O 0 ~ 3 AN Wn HH w N a - o No oe Plaintiffs only option was to sign these documents or reject them under risk of not being hired or losing his employment opportunity. Courts have long held that a non-negotiable contract of adhesion in the employment context is procedurally unconscionable. (Armendariz, supra, at 115; See Circuit City Stores, Inc. v. Adams (9th Cir. 2002) 279 F.3d 889, 893 (finding arbitration agreement procedurally unconscionable because it was a “take it or leave it” prerequisite to employment, and job applicants were not permitted to modify the agreement’s terms.)) As aforementioned, Defendant’s actions, in sum, make the Comprehensive Agreement a non-negotiable contract of adhesion. Thus, as the arbitration agreement is found to be procedurally unconscionable, it is invalid and unenforceable against Plaintiff. 2. The Absence of Plaintiff’s Signature and The Lack of Party Identification Towards The Comprehensive Agreement’s Enforceability Renders The Arbitration Agreement Unenforceable Defendant’s Comprehensive Agreement is substantively unconscionable, as it fails to provide Plaintiff’s name on the top of the corresponding agreement and Plaintiff's alleged signature, contained in the bottom of the Comprehensive Agreement was not signed by Plaintiff. As such, the occurrence of the aforementioned renders the Comprehensive Agreement unenforceable. “In California, ‘[g]eneral principles of contract law determine whether the parties have entered a binding agreement to arbitrate.” [Citations.]” (Pinnacle v. Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) “An essential element of any contract is the consent of the parties, or mutual assent. [Citation.]” (Donovan v. RRL Corp. (2001) 26 Cal.4th 261, 270 (Donovan).) Further, the consent of the parties to a contract must be communicated by each party to the other. (Civ. Code, § 1565, subd. 3.) “Mutual assent is determined under an objective standard applied to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts, and not their unexpressed intentions or understandings. [Citation.]” (dlexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 141, disapproved on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 8 PLAINTIFF JOSE JUAN GONZALEZ’S OPPOSITION TO DEFENDANT’S MOTION TO COMPEL ARBITRATION Y; Yo os EF IA N Ir La w Fi rm ec . 13 5 SO UT H JA CK SO N ST RE ET , SU IT E 20 3 Oo 0 N S N hh B R A W N GL EN DA LE , CA LI FO RN IA 91 20 5 2 8 8&8 HT R E V P[V R E T x 3 a c 5 s 0 = 53 512,524.) For example, in Mitri v. Arnel Management Co. (2007) 157 Cal.App.4th 1164, the plaintiffs received and signed a general employee handbook which discussed the employers arbitration policy. (/d. at p. 1168.) The court found this was insufficient to show mutual assent to arbitrate because the arbitration agreement provision contained in the handbook also placed the plaintiffs on notice that they would be required to sign and enter into a separate arbitration agreement with the defendant. (/d. at p. 1167.) However, no separate arbitration agreement was ever produced. (Id. at p. 1168.) As there was no signature from any of the employees specifically agreeing to arbitrate, the court concluded that there was no arbitration agreement. (Id. at pp. 1172-1173.) Here, the alleged signature located on the bottom of the Comprehensive Agreement is not Plaintiff's actual signature. To this extent, Plaintiff has the occurrence and the continuous practice of signing documents in particular manner, to which is not correctly reflective on the Comprehensive Agreement. Additionally, and conspicuously, the Comprehensive Agreement fails to specify the party to which this particular Comprehensive Agreement concerns. As Plaintiff did not sign the Comprehensive Agreement, Plaintiff did not provide an objective manifestation of assent to the terms and conditions contained in the Comprehensive Agreement, including the arbitration provision contained therein. Like Mitr, there lies no signature or reasonable expression of agreement by Plaintiff to agree to arbitration. As the Comprehensive Agreement does not specify Plaintiff's (Juan Gonzalez’s) name on the allotted area as a party to the agreement, nor reflect Plaintiffs actual signature, the Comprehensive Agreement, and the arbitration provision contained therein, are unenforceable. B. The Arbitration Provision Is Substantively Unconscionable Substantive unconscionability exists when a contract imposes unduly harsh, oppressive, or one-sided terms. Armendariz, 24 Cal.4th at 113. “[Plrovisions 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 unconscionability, only a minimal showing of substantial unconscionability is 9 PLAINTIFF JOSE JUAN GONZALEZ’S OPPOSITION TO DEFENDANT’S MOTION TO COMPEL ARBITRATION Yi Yo Oo se FI AN ir La w F i r m ec. 13 5 SO UT H JA CK SO N ST RE ET , SU IT E 20 3 No 0 3 ON am d md f k p e d Ww N N = O G L E N D A L E , C A L I F O R N I A 9 1 2 0 5 N o NN ND N o No No No nN ro - -_ - Jd - - o o ~ J aN w h =~ Ww N o - oO \ O oo ~ J [@ ) wn oN 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.”); Mercuro, 96 Cal.App.4th at 174-75 (given employer’s highly oppressive conduct in obtaining employee’s consent to arbitration agreement, employee was required to make only minimal showing of substantive unconscionability). Here, two aspects of Defendant’s arbitration provision are substantively unconscionable. First, the arbitration provision restricts Plaintiff’s right to discovery. Specifically, there is no express provision for Plaintiff’s right to discovery, nor does the arbitration provision reference to any binding corresponding rules in regard to Plaintiff's right to discovery. Rather than providing for discovery explicitly in the arbitration agreement, as required by Armendariz, 24 Cal.4th at 102, the arbitration agreement, as a whole, hands over the scope of discovery entirely to the discretion of the arbitrator. Needless to say, discovery at the discretion of an arbitrator differs substantially from a litigant’s broad discovery rights in federal or state court. Given that Plaintiff was never provided with explicit rules of discovery, nor any reasonable reference to which Plaintiff may understand the scope and entirety of the rule of discovery, Plaintiff had no knowledge of what discovery Plaintiff would be entitled if this matter is compelled to arbitration. Courts have routinely held that the absence of the express provision for discovery rights renders arbitration agreements unconscionable. See Armendariz, 24 Cal.4th at 113; Sparks, 207 Cal. App.4th at 1523; Fitz, 118 Cal. App.4th at 715 (“Adequate discovery is essential for vindication of statutory claims.”). Specifically, the Sparks court held that the arbitration provision was substantively unconscionable because, like here, the provision required the employee to relinquish statutory administrative and judicial rights, and because there was no express provision for discovery. See 207 Cal. App.4th at 1523. Second, Defendant’s failure to provide explicit terms and corresponding provisions regarding the burden on Plaintiff or Defendant to pay the arbitration fees and costs renders the arbitration provision, as a whole, substantively unconscionable. Defendant fails to identify 10 PLAINTIFF JOSE JUAN GONZALEZ’S OPPOSITION TO DEFENDANT'S MOTION TO COMPEL ARBITRATION Yi Yo os Er IA N ir La w F i r m ec. 13 5 SO UT H JA CK SO N ST RE ET , SU IT E 20 3 Le 0 ~~ a hh BA W N G L E N D A L E , C A L I F O R N I A 9 1 2 0 5 No NY b o nN No \ No ) No \ -_ - pt -_ fo t - - - - - 0 ~3 oN hn + [P S] No i oo \ O =] ~ J aN wn EE N w No p - << anywhere in its moving papers what the arbitration provision requires Plaintiff and Defendant to each pay, respectively, to arbitrate this dispute. The arbitration provision, as provided in the Comprehensive Agreement, is silent as to whether Plaintiff or Defendant is to pay for arbitration costs and/or fees. In similar circumstances, courts have refused to enforce such unconscionable provisions. (See Adams 279 F.3d at 894 (agreement requiring employee to split the arbitrator’s fee with the employer rendered the entire arbitration agreement unenforceable); Armendariz, 24 Cal.4th at 110-11 (“[W]hen an employer imposes mandatory arbitration as a condition of employment, the arbitration agreement or arbitration process cannot generally require the employee to bear any type of expense that the employee would not be required to bear if he or she were free to bring the action in court.”); Mercuro, 96 Cal. App.4th at 179-82 (provisions requiring plaintiffs to share equally in arbitration costs after the first hearing day, and permitting the arbitrator to impose the entire costs of the arbitration on the plaintiffs should they lose, are substantively unconscionable.)) As such, Defendant’s failure and the absence of a provision providing for the paying of arbitration fees and costs associated with the arbitration process, renders the Comprehensive Agreement substantively unconscionable, and thus, unenforceable against Plaintiff. C. The Arbitration Provision Is Permeated With Unconscionability And Cannot Be Cured Where, as here, an arbitration agreement that contains numerous unconscionable provisions, severance cannot save the unconscionability of the arbitration agreement. The Armendariz Court noted that a court’s power to reform an arbitration agreement is “limited to instances in which parties make mistakes, not to correct illegal provisions.” 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. “The fact that an arbitration agreement contains more than one unlawful provision may indicate a systematic effort to impose arbitration on an employee ... as an inferior forum that works to the 11 PLAINTIFF JOSE JUAN GONZALEZ’S OPPOSITION TO DEFENDANT’S MOTION TO COMPEL ARBITRATION Y T Yo os Ee rI AN ir La w Fi rm e c. 13 5 S O U T H J A C K S O N ST RE ET , SU IT E 20 3 eo o e N N N BA W N = G L E N D A L E , C A L I F O R N I A 9 1 2 0 5 ho No NI No No No Na no nN - - - pr t Ja d po d - - i pt c o ~ J MN wn + Ww N o -_ oO O c o ~ J aN wn o a Ww 2 - O employer’s advantage.” Ontiveros v. DHL Exp. (USA) Inc. (2008) 164 Cal. App.4th 494, 515). Here, the number of unconscionable provisions permeating Defendant’s arbitration provision, as provided for in the Comprehensive Agreement, coupled with the high degree of established procedural and substantive unconscionability, clearly illustrates a systematic effort by Defendant to gain an advantage over Plaintiff through the arbitration provision. Accordingly, the arbitration provision is irreparably tainted, cannot be reformed by severing the numerous unconscionable provisions, and is therefore unenforceable. V. CONCLUSION Based on the foregoing, Plaintiff respectfully requests that this Court deny Defendant’s Motion to Compel Arbitration and allow this matter to proceed in a Court of law. DATED: September 14, 2017 YOOSEFIAN LAW FIRM, P.C. By:-" (+ TT Ronald Yoodefian, Esq. Susana Oganesian, Esq. Serop Agadzhanyan, Esq. Attorneys for Plaintiff, JOSE JUAN GONZALEZ 12 PLAINTIFF JOSE JUAN GONZALEZ’S OPPOSITION TO DEFENDANT’S MOTION TO COMPEL ARBITRATION PROOF OF SERVICE JOSE JUAN GONZALEZ v. SANTA ANA CREEK DEVELOPMENT dba MARK COMPANY CASE NO.: 30-2017-00921481-CU-OE-CJC I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is: 135 South Jackson Street, Suite 203, Glendale, CA 91205. On DATE: 09/14/2017 I served the forgoing documents described as: PLAINTIFF JOSE JUAN GONZALEZ’S OPPOSITION TO DEFENDANT'S TO DEFENDANT’S MOTION TO COMPEL ARBITRATION On the following parties: SENT VIA U.S. MAIL: Attorney for Defendant, SANTA ANA CREEK DEVELOPMENT dba MARK COMPANY Michael M. Freeland, Esq. FREELAND LAW APC. 9029 Park Plaza Dr., Suite 202 La Mesa, CA 91942 Telephone: (619) 464-5006 Facsimile: (619) 464-5000 [XXXX] BY MAIL I deposited such envelope in the mail at Glendale, California. The envelope was mailed with postage thereon fully prepaid. [ 1 BY FACSIMILE Instead of placing a copy of the document in a sealed envelope, I sent a copy of the above-described document(s) via telecopier to each of the individuals set forth above, [1 VIA MESSENGER/PERSONAL DELIVERY I caused a copy of the above described documents to be personally served in this action by an agent employed to deliver a true copy thereof during normal business hours, which documents were enclosed in a sealed envelope and placed for personal delivery by the Yoosefian Law Firm, P.C.. Upon delivery of said documents, a proof of service will be signed by the messenger, confirming receipt, and delivery of same. [X] (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Date: 09/14/2017 Signature: y/ 17 a £1 es Marcella Arellano