Raquel Meraz vs. Holy Foods, Inc.

Opposition

Cal. Super. - 4th Dist.September 13, 2017

( T T o w 0 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AEGIS LAW FIRM, PC KASHIF HAQUE, State Bar No. 218672 FAWN BEKAM, State Bar No. 307312 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 khaque@aegislawfirm.com fbekam@aegislawfirm.com Attorneys for Plaintiff, RAQUEL MERAZ ELECTRONICALLY FILED Superior Court of California, County of Orange 05/07/2018 at 05:43:00 FM Clerk of the Superior Court By Wanique Ramirez, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE CENTER RAQUEL MERAZ, an individual, Plaintiff, VS. HOLY FOODS, INC., a California corporation; and DOES 1 through 20 inclusive, Defendants. Case No.: 30-2017-00943453-CU-OE-CIJC ASSIGNED FOR ALL PURPOSES TO Hon. JAMES J. D1 CESARE, DEPT. C16 PLAINTIFF RAQUEL MERAZ’S OPPOSITION TO DEFENDANT HOLY FOODS, INC’.’S MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS [Filed concurrently with Declaration of Fawn Bekam] Hearing Date: May 18, 2018 Time: 9:30 a.m. Dept. C16 Complaint Filed: September 13,2017 Trial Date: None Set wn he WwW ND o e a ON 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 Raquel Meraz (“Plaintiff”) opposes Defendant Holy Foods, Inc.’s (“Defendant™ or “Holy Foods”) Motion to Compel Arbitration on the grounds that Defendant failed to establish the existence of an applicable arbitration provision that governs this dispute by a preponderance of the evidence. Although it is Defendant’s burden to prove that there is a valid, enforceable agreement, Defendant fails to reasonably authenticate any alleged agreement or meet basic evidentiary standards to establish the existence of or terms of an alleged agreement. Even assuming, arguendo, that an arbitration agreement exists, Holy Foods does not have standing to enforce it. The alleged arbitration agreements are between La Bodega Market and Plaintiff, and La Bodega Market is an unregistered fictitious business name lacking standing to enforce any contract. If the Court does find existence of a valid and enforceable arbitration agreement before it and that Defendant has standing to enforce it, Plaintiff requests that the Court sever the unconscionable fee-shifting provision providing that if an employee files a complaint which a court thereafter determines is subject to arbitration, the employee will reimburse the employer for its costs and attorneys’ fees incurred in compelling arbitration of the complaint. II. LEGAL STANDARD In determining the enforceability of an arbitration agreement, its provisions are interpreted according to California law. “[E]ven when the [FAA] applies, interpretation of the arbitration agreement is governed by state law principles . . . Under California law, ordinary rules of contract interpretation apply to arbitration agreements.” Valencia v. Smyth (2010) 185 Cal. App. 4th 153, 177. “Because the existence of the agreement is a statutory prerequisite to granting the petition, the petition bears the burden of proving its existence by a preponderance of the evidence.” Rosenthal v. Great W. Fin. Sec. Corp. (1996) 14 Cal. 4th 394, 413. Here, Defendant fails to prove an agreement to arbitrate exists. 1" // 2s OPPOSITION TO MOTION TO COMPEL ARBITRATION Oo 0 N N Un Rh W N = N O N O N N N O N O N O N O N O N + e m e m e m m l p m em e m em pe «© ~~ AN hh A W D = O C SY N R W em III. THERE IS NO ADMISSIBLE EVIDENCE OF A VALID AND ENFORCEABLE ARBITRATION AGREEMENT Defendant has the burden to prove the existence of an agreement to arbitrate and had a full and fair opportunity to do so in its moving papers. Because the alleged agreement is a writing, it must be authenticated by declarations or other evidence establishing that it is what it purports to be. Cal. Evid. Code §§ 250, 14019a). Authentication typically requires personal knowledge of the document, how the document was obtained, and who identified it. See, e.g. Greenspan v. LADT, LLC (2010) 191 Cal. App. 4th 486, 523. Authentication done by declaration must contain facts showing the declarant’s connection with the matters stated and establish the source of the information. See Cal. Evid. Code § 702; Osmond v. EWAP, Inc. (1984) 153 Cal. App. 3d 842, 851. Here, the sole “evidence” presented by Defendant of an alleged arbitration agreement signed by Plaintiff is a declaration from its Office Manager, Ana Rodriguez. Ms. Rodriguez states, Plaintiff received English and Spanish versions of Defendant’s Mutual Agreement to Arbitrate Claims (“Agreement”). A true and correct copy of the English Version of the Agreement is attached hereto as Exhibit A. A true and correct copy of the Spanish version of the Agreement, which Plaintiff signed, is attached hereto as Exhibit B. Plaintiff also received and signed a second agreement, entitled “Mutual Agreement to Arbitrate,” which was substantively identical to the Agreement in nearly all respects. Attached hereto as Exhibit C and Exhibit D are true and correct copies the [sic] English and signed Spanish versions of this agreement. [Declaration of Ana Rodriguez in Support of Defendant’s Motion to Compel Arbitration and Stay Proceedings “Rodriguez Decl.” at qf 5-6, Exs. A, B, C, D]. However, these documents do not provide admissible evidence of a valid and enforceable agreement to arbitrate because: (1) Ms. Rodriguez declares that Exhibit B is a Spanish version of Defendant’s Mutual Agreement to Arbitrate Claims which Plaintiff signed-however, Exhibit B to Ms. Rodriguez’s declaration is an unsigned English language document, and therefore, Defendant has not submitted any evidence of] an executed arbitration agreement; (2) Ms. Rodriguez is not a qualified interpreter capable of] authenticating translated versions of foreign language documents. Section 753(a) of the Evidence Code provides, “When the written characters in a writing offered in evidence are incapable of being deciphered or understood directly, a translator who can 3. OPPOSITION TO MOTION TO COMPEL ARBITRATION «© J A N nn W N \o 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 decipher the characters or understand the language shall be sworn to decipher or translate the writing.” Furthermore, “A translator shall take an oath that he or she will make a true translation in the English language of any writing he or she is to decipher or translate.” Cal. Evid. Code § 751(c); cf. People v. Torres (1985) 164 Cal. App. 3d 266, 269 (court erred by admitting English language transcript of Spanish language recording without sworn testimony of its original translator). More importantly, Rule 3.1110(g) of the California Rules of Court provides, “Exhibits written in a foreign language must be accompanied by an English translation, certified under oath by a qualified interpreter.” Defendant has not submitted any evidence that Exhibit D to the Declaration of Ms. Rodriguez is a true translation of Exhibit C, and therefore there is no dispute that neither Exhibit C nor D is admissible evidence. Defendant has also failed to authenticate the Spanish language document attached to Ms. Rodriguez's declaration as Exhibit A. Defendant has submitted a declaration from a certified translator purporting to authenticate the Spanish language and English language documents attached thereto as Exhibit 1. [See Declaration of Translator Manuel Duran in Support of Defendant’ s Motion to Compel Arbitration and Stay Proceedings (“Duran Decl.”) at § 1, Ex. 1]. Mr. Duran states, in pertinent part; On February 06, 2018, I was provided with a signed copy of the Spanish language document entitled ‘Mutuo Acuerdo de Arbitraje de Reclamaciones,’” executed on 1/10/2017 in PDF format, and an English language document entitled ‘Mutual Agreement to Arbtirate Claims.” A true and correct copy of what I was provided is attached hereto as Exhibit 1. Based upon my review of the documents, I believe the English version of the document is a materially accurate translation of the Spanish document . . . [Duran Decl. at 2-4, Ex. 1]. Although Mr. Duran declares that he is a certified translator, he does not declare that he is the original translator of the Spanish document into the English document. In fact, Mr. Duran has not actually translated any document-he merely states that he compared the two documents and found the English language document to be a “materially accurate translation of the Spanish document.” Through this statement, Mr. Duran even expressly admits that the English language document is not a true translation of the Spanish language document. Further, the 4 OPPOSITION TO MOTION TO COMPEL ARBITRATION NO ee 3 A N A 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 29 28 English language document attached as Exhibit 1 to Mr. Duran’s declaration is not the same document attached as Exhibit B to Ms. Rodriguez's declaration.! Even if Mr. Duran’s comparison of the two documents attached to his declaration as Exhibit 1 constituted a sufficient translation under the Evidence Code and California Rules of Court, Defendant has not established the authenticity of Exhibit 1 in any way, primarily because Mr. Duran is not qualified to establish the source of the information and the English language document he was provided with is different from the one that Ms. Rodriguez attempts to authenticate. Absent such properly certified translations or sworn testimony, the Spanish language documents by themselves cannot provide any probative evidence regarding the contents of those documents. Only relevant evidence is admissible, Cal. Evid. Code § 350, and evidence is relevant only if it tends logically, naturally, and by reasonable inference to establish, or prove, material facts. People v. Richardson (2008) 43 Cal.4th 959, 1000-1001. If a trial court or other trier of fact is not properly presented with an English translation of a document written in a foreign language, that documentary evidence cannot have any tendency to prove a material fact in a case. Accordingly, there is no admissible evidence before this Court of a valid and enforceable arbitration agreement between the parties. Likewise, the English language documents by themselves cannot provide any evidence of] a valid and enforceable arbitration agreement between Plaintiff and Defendant, as neither English language agreement contains Plaintiff's signature or her name. [See Rodriguez Decl. at 9 5-6, Exs. B & DJ. IV. HOLY FOODS DOES NOT HAVE STANDING TO ENFORCE ANY ALLEGED ARBITRATION AGREEMENT If an agreement to arbitrate does exist, it is between La Bodega Market and Plaintiff. Defendant states in its moving papers that it “does business as La Bodega Market.” [See Memorandum of Points and Authorities in Support of Defendant’s Motion to Compel Arbitration 1 For instance, Exhibit B to Ms. Rodriguez’s declaration contains an internal code in the bottom left corner: “2101/031462-0001 6844228.1 a02/17/15.” The English document given to Mr. Duran and attached to his declaration as Exhibit 1 contains a different internal code: “2101/031462-0001 6844228.1 a02/02/18.” -5- OPPOSITION TO MOTION TO COMPEL ARBITRATION NO R 0 9 A N Wn B W N O N N N N N N N O N mm mm e k e m e m e m e m e m pe ®W N N nh R W = D O R N R W N R o and Stay Proceedings (“Motion to Compel”) at p. 1, line 3]. Ms. Rodriguez declares that she is the Office Manager of Defendant Holy Foods, which “does business as La Bodega Market.” [See Rodriguez Decl. at 1]. Neither of these statements is supported by an evidence-undoubtedly because none exists. “A petition to compel arbitration is in essence a suit in equity to compel specific performance of a contract.” Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 Cal. App. 4th 515. California Business and Professions Code requires a fictitious business name to be filed within the first forty (40) days of first transacting business. Cal. Bus. & Prof. Code § 17910. Once a fictitious business name statement is filed, it must be published in an adjudicated newspaper one day per week for four consecutive weeks. Cal. Bus. & Prof. Code § 17915. Section 17918 of California Business and Professions Code provides consequences for non-compliance: No person transacting business under a fictitious business name contrary to the provisions of this chapter, or his assignee, may maintain any action upon or on account of any contract made, or transaction had, in the fictitious business name in any court of this state until the fictitious business name statement has been executed, filed, and published as required by this chapter. Defendant is not registered to do business under a fictitious business name in Orange County. [See Declaration of Fawn Bekam in Support of Plaintiff's Opposition to Defendant’s Motion to Compe] Arbitration and Stay Proceedings at § 2, Ex. A]. Accordingly, Defendant lacks standing to enforce any alleged arbitration agreement between an unregistered fictitious business and Plaintiff. V. IF THE COURT FINDS EVIDENCE OF A VALID AND ENFORCEABLE ARBITRATION AGREEMENT AND THAT DEFENDANT HAS STANDING TO ENFORCE IT, PLAINTIFF REQUESTS THAT THE COURT SEVER THE UNCONSCIONABLE FEE-SHIFTING PROVISIONS Plaintiff requests that if the Court grants Defendant’s Motion to Compel, it sever the unconscionable fee-shifting provision in the alleged arbitration agreement, which provides: Dispute Over Enforceability of Agreement. In the event Employer or employee brings an action, or files a motion, in court (1) to compel arbitration of a Claim under this Agreement, or (2) to resist or challenge the enforceability of a demand for arbitration of a Clam under this Agreement, the prevailing party on such action or motion shall be entitled to recover its, his or her reasonable attorneys’ fees and costs -6- OPPOSITION TO MOTION TO COMPEL ARBITRATION Oo KR aN Wn E e Ww nN - N O N N N N N N = mm k k e m e m e d p m e m e m p m 2 O s a b b R E E B E R B E R S E E R E F E G E = = incurred in connection with such motion, including in connection with any appeal from the ruling on such motion. [Duran Decl. at § 2, Ex 1 p. 5]. These types of fee-shifting provisions are unconscionable and should not be enforced. As the court in Sandoval v. Medway Plastics Corp. held in considering a similar provision: The fee-shifting provision chills’ employees’ access to the courts. Under the provision, an employee who successfully demonstrated the unconscionability of one or more provisions of an arbitration agreement would nevertheless be compelled to reimburse the employer if the court found the unconscionable provision(s) severable. Employees with legitimate challenges to unconscionable provisions in arbitration agreements would thus be discouraged from challenging them and could be penalized when they did, even if successful. (Dec. 17,2014) 2014 Cal. App. Unpub. LEXIS 8953, at * 13-15. VI. CONCLUSION Based on the foregoing, Plaintiff respectfully requests that the Court deny Defendant’s Motion to Compel Arbitration and Stay Proceedings. Dated: May 7, 2018 AEGIS LAW FIrM, PC a 7 Kashif Haque Fawn Bekam Attorneys for Plaintiff RAQUEL MERAZ x, OPPOSITION TO MOTION TO COMPEL ARBITRATION OO 0 N N N Wn BR W N IN No No [\ ] No N N No N o - - - - -_- - -_ - - - c o ~~ O Y Wb BA W N N = O O N N W R W N =, DS CERTIFICATE OF SERVICE [, 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 7, 2018, I served the foregoing document entitled PLAINTIFF RAQUEL MERAZ’S OPPOSITION TO DEFENDANT HOLY FOODS, INC.’S MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS on all the appearing and/or interested parties in this action by placing [_] the original a true copy thereof enclosed in sealed envelope(s) addressed as follows: James E. Hart Sami Hasan LITTLER MENDELSON, P.C. 2050 Main Street, Suite 900 Irvine, CA 92614 Attorneys for Defendant: Holy Foods, Inc. (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).) (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 via the above listed email addresses 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. 5(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 7, 2018, at Irvine, California. Grethel Gonzalez K CERTIFICATE OF SERVICE