Hernani Prado vs. First American Trust, F.S.B.Motion to Compel ArbitrationCal. Super. - 4th Dist.November 30, 201710 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rutan & Tucker, LLP attorneys at law RUTAN & TUCKER, LLP Edson K. McClellan (State Bar No. 199541) emcclellan@rutan.com Kimberly A. Court (State Bar No. 301058) kcourt@rutan.com 611 Anton Boulevard, Suite 1400 Costa Mesa, California 92626-1931 Telephone: ~~ 714-641-5100 Facsimile: 714-546-9035 Attorneys for Defendant FIRST AMERICAN TRUST, F.S.B. ELECTRONICALLY FILED Superior Court of California, County of Orange 0213/2018 at 03:34:00 Pid Clerk of the Superior Court By Wanique Ramirez, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE, CENTRAL JUSTICE CENTER HERNANI PRADO, an individual, Plaintiff, VS. FIRST AMERICAN TRUST, F.S.B., a California corporation, tka FIRST AMERICAN TRUST COMPANY, a California corporation; and DOES 1-50, inclusive, Defendants. Case No. 30-2017-00958660-CU-OE-CJC ASSIGNED FOR ALL PURPOSES TO HoN. THEODORE HOWARD, DEPT. C18 1. NOTICE OF MOTION AND MOTION OF DEFENDANT FIRST AMERICAN TRUST, F.S.B. TO COMPEL ARBITRATION AND DISMISS THE ACTION WITH PREJUDICE; OR IN THE ALTERNATIVE, TO STAY THE PROCEEDINGS PENDING ARBITRATION; and 2. MEMORANDUM OF POINTS AND AUTHORITIES; and 3. DECLARATIONS OF BRYAN JARECKY AND KIMBERLY A. COURT, AND EXHIBITS Reservation No. 72754199 Date: March 29, 2018 Time: 1:30 p.m. Dept.: C18 Date Action Filed: November 20, 2017 Trial Date: None Set -1- 2761/034819-0465 11973035.1 a02/13/18 NOTICE OF MOTION AND MOTION OF DEFENDANT To COMPEL ARBITRATION AND DISMISS OR STAY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rutan & Tucker, LLP attorneys at law TO PLAINTIFF AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on March 29, 2018, at 1:30 p.m., in the above-referenced Court, located at 700 Civic Center Dr. West, Santa Ana, California 92701, Defendant First American Trust, F.S.B. (“First American”) will and hereby does move this Court to: (1) enter an order pursuant to California Civil Procedure Code sections 1281 et seq. and the Federal Arbitration Act (“FAA”), 9 U.S.C. sections 1-16, compelling Plaintiff Hernani Prado (“Prado”) to arbitrate the claims against First American alleged in his Complaint; and (2) dismiss this action with prejudice; or in the alternative, stay these proceedings pending arbitration. First American makes this Motion for the following reasons and on the following grounds: 1. On October 18, 2011, as part of his employment with First American, Prado electronically signed a Dispute Resolution Agreement (“DRA”) and agreed to arbitrate any dispute “arising out of or related to” his employment, including “disputes regarding the employment relationship . . . termination . . . Americans With Disabilities Act .. Family Medical Leave Act .. . [and] state statutes, if any, addressing the same or similar subject matters, and all other state statutory and common law claims.” (Ex. A, § 1.) The DRA further states that it is governed by the FAA, 9 U.S.C. section 1 ef seq. (Id.) Prado acknowledged that he “received, reviewed and under[stood]” the DRA and agreed “to the use of an electronic method of signature to demonstrate [his] acknowledgment.” (Ex. B.) 2, On November 30, 2017, Prado filed a Complaint in the above-captioned matter. Prado’s Complaint asserts the following claims against First American: (1) Disability Discrimination; (2) Discrimination in Violation of the CFRA; (3) Failure to Prevent Discrimination; (4) Failure to Accommodate Disability; (5) Failure to Engage in the Interactive Process; (6) Wrongful Termination; and (7) Intentional Infliction of Emotional Distress. Each of these claims arises out of and relates to Prado’s employment with First American. 3. Under the California Civil Procedure Code, the FAA, and other applicable authorities, Prado’s agreement to arbitrate all claims alleged in his Complaint is binding and enforceable. See CAL. Civ. PROC. CODE § 1281; 9 U.S.C. § 2. 4. Because a valid agreement exists requiring Prado to arbitrate this controversy, First 3 2761/034819-0465 NOTICE OF MOTION AND MOTION OF DEFENDANT 11973035.1 a02/13/18 To COMPEL ARBITRATION AND DISMISS OR STAY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rutan & Tucker, LLP attorneys at law American is entitled to an order both compelling Prado to submit his claims against First American to arbitration and dismissing the action with prejudice. See CAL. Civ. PROC. CODE § 1281.2; 9 U.S.C. § 4. In the alternative, the Court should stay any proceedings until after the arbitration, or until such earlier time as the Court may specify. See CAL. C1v. PROC. CODE § 1281.4; 9 U.S.C. § 3. 5. First American has demanded that Prado comply with his agreement to arbitrate his claims against First American. (Declaration of Kimberly Court (“Court Decl.”), 4 2, Ex. E.) Prado, however, has refused to submit his claims against First American to arbitration, without any justification. (/d. 4 3, Ex. F.) This Motion is based upon this Notice of Motion; the attached Memorandum of Points and Authorities; the Declarations of Bryan Jarecky and Kimberly A. Court and all exhibits thereto; the complete files and records of this action; and upon other further oral and documentary evidence as may be presented at the hearing on this Motion. Dated: February 13, 2018 RUTAN & TUCKER, LLP EDSON K. McCLELLAN KIMBERLY A. COURT ov Kpmbady (ut Kimberly Alcourt Attorneys for Defendant FIRST AMERICAN TRUST, F.S.B -3- 2761/034819-0465 NOTICE OF MOTION AND MOTION OF DEFENDANT 11973035.1 a02/13/18 To COMPEL ARBITRATION AND DISMISS OR STAY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rutan & Tucker, LLP attorneys at law MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION. In contravention of his agreement to arbitrate all disputes arising out of or related to his employment with defendant First American Trust, F.S.B. (“First American”), Plaintiff Hernani Prado (“Prado”) filed this lawsuit. Because each of Prado’s claims is covered by the arbitration agreement, the Court should dismiss Prado’s claims and compel him to arbitrate them. Prado’s Complaint alleges claims for disability discrimination and related causes of action, wrongful termination, and intentional infliction of emotional distress. However, Prado signed a Dispute Resolution Agreement (“DRA”) during his employment with First American to arbitrate any disputes “arising out of or related to” his employment with First American. There can be no reasonable dispute that Prado and First American agreed to this DRA, and that the claims Prado alleges are within the scope of the DRA. Prado voluntarily entered into the agreement after an opportunity to review it, consult his own counsel, and opt out of the agreement or discontinue his employment. Prado expressly acknowledged that he had read and understood the DRA, and despite explicit instructions regarding his right to opt out, he declined to do so. For these reasons, the Court should compel Prado to arbitrate his claims, and it should dismiss, or in the alternative, stay these proceedings pending the completion of the arbitration. II. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND. A. Prado’s Complaint Alleges Claims Arising Out of and Relating to His Employment With First American. Prado worked for First American from approximately 2003 to February 3, 2017. (Complaint 9 8.) At the time Prado’s employment ended, his job title was Bank Operations Specialist. (/d.) Prado’s Complaint asserts the following claims against First American: (1) Disability Discrimination; (2) Discrimination in Violation of the CFRA; (3) Failure to Prevent Discrimination; (4) Failure to Accommodate Disability; (5) Failure to Engage in the Interactive Process; (6) Wrongful Termination; and (7) Intentional Infliction of Emotional Distress. Each of these claims arise out of and relate to Prado’s employment with First American, 4- 2761/034819-0465 NOTICE OF MOTION AND MOTION OF DEFENDANT 11973035.1 a02/13/18 To COMPEL ARBITRATION AND DISMISS OR STAY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rutan & Tucker, LLP attorneys at law and generally arise out of Prado’s alleged diagnosis with “End Stage Renal Disease (ESRD) in late 2016.” (Complaint 99.) Prado’s First and Third Causes of Action are based on the allegation that his separation of employment and the alleged “disparate treatment. . .; discrimination in terms, conditions, and/or privileges of employment; [and] refusal to accommodate” him were the result of Prado’s disability or medical issues. (/d. 9 19, 34-35.) Prado’s Second Cause of Action is also based upon the separation of Prado’s employment, allegedly “in retaliation for exercising his rights under the CFRA.” (Id. 427.) Prado’s Fourth Cause of Action is premised on the allegations that First American failed to accommodate his disabilities by the following actions: refusing to allow Prado to take his full medical leave; retaliating against him for requesting accommodations; and “terminating [him] prior to his return from medical leave.” (Id. 442.) Prado’s Fifth Cause of Action alleges that First American “did not engage in any interactive process with [Prado]. . . and there was no attempt by [First American] to keep his position open long enough for [Prado] to be able to return to his job.” (Id. § 51.) Prado’s Sixth Cause of Action alleges that First American’s decision to end Prado’s employment was in violation of the CFRA, FEHA, California Labor Code, and California Constitution. (Complaint § 59.) Prado’s Seventh 6 Cause of Action alleges that all of this alleged conduct resulted in Prado’s “severe emotional distress.” (Id. 9 64.) B. Prado Agreed to Arbitrate All of His Claims in This Action. In October 2011, Prado agreed to arbitrate any dispute arising out of or related to his employment with First American pursuant to First American Financial Corporation’s DRA. (Declaration of Bryan Jarecky (“Jarecky Decl.”) 449-11; Ex. A, § 1.) 1. Prado Electronically Signed The DRA on October 18, 2011. To sign the DRA, Prado accessed the DRA using his unique employee identification number and password. (Jarecky Decl. 44, 9.) First American employees are instructed not to share their unique employee identification numbers and passwords with anyone. (/d. 45.) The First American Financial Corporation is the parent corporation of First American Trust, F.S.B. (Declaration of Bryan Jarecky, 4 1.) The DRA provides that it applies to “employment with any wholly or partially owned division, affiliate or subsidiary of First American Financial Corporation.” (Ex. A, § 1.) -5- 2761/034819-0465 NOTICE OF MOTION AND MOTION OF DEFENDANT 11973035.1 202/13/18 To COMPEL ARBITRATION AND DISMISS OR STAY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rutan & Tucker, LLP attorneys at law individual owner of the employee identification number and password is the only person authorized to use them to electronically sign agreements. (/d.) Using the unique identification number and password belonging to another individual in order to electronically sign a DRA would be a violation of company policy and would be a cause for discipline. (/d.) No information suggests that anyone other than Prado used Prado’s unique identification number and password to sign the DRA. (Id. 995, 11.) Prado was prompted with the following information when accessing the DRA (all emphasis in original): Please follow these steps to acknowledge receipt of the First American Dispute Resolution Agreement. (1) Access the Dispute Resolution Agreement by clicking on the above Review Agreement link; (2) Review the Dispute Resolution Agreement and then return to this acknowledgment page; (3) Click on the I Agree button above. * By clicking on the I Agree button, I hereby acknowledge that I have received, reviewed and understand First American Financial Corporation’s Dispute Resolution Agreement. * | further understand and agree to the use of an electronic method of signature to demonstrate my acknowledgment of this Dispute Resolution Agreement. If you have any questions, please contact your local or division Human Resources representative or Corporate Human Resources at corporate.hr@firstam.com. (Id. 4 7, Ex. B.) Before returning to the acknowledgment page, the DRA informs employees that if anyone wishes to opt out, he “may submit a form stating that the Employee wishes to opt out and not be subject to this Agreement,” which “can be obtained from the First American eWorkforce Service Center...” (Ex. A, § 8.) The DRA also informs employees that if an employee does “not opt out . . . within 30 days of the Employee’s receipt of this Agreement, continuing the Employee’s employment constitutes mutual acceptance of the terms of this Agreement by Employee and the Company.” (/d.) If Prado did not wish to be bound by the DRA, he had three options. First, he could have -6- 2761/034819-0465 NOTICE OF MOTION AND MOTION OF DEFENDANT 11973035.1 a02/13/18 To COMPEL ARBITRATION AND DISMISS OR STAY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rutan & Tucker, LLP attorneys at law elected not to select the “I Agree” button after reviewing the DRA. (See Ex. B.) Second, he could have submitted an opt-out form immediately, using the instructions in the DRA. (See Ex. A, § 8.) Third, within 30 days of reviewing the DRA, he could have terminated his employment with First American. (Ex. A § 8, Jarecky Decl. 4 7, 8.) Prado did neither of these. (Jarecky Decl. 9-11.) Instead, he electronically signed the DRA on October 18, 2011, at 2:27 p.m. EST and continued his employment with First American for more than five years, through February 2017. (/d.) 2. The DRA Provides for Resolution of Employment Disputes Exclusively Through Arbitration. The DRA applies to “any dispute arising out of or related to Employee’s employment,” including “disputes regarding the employment relationship . . . termination . . . Americans With Disabilities Act . . .Family Medical Leave Act. .. [and] state statutes, if any, addressing the same or similar subject matters, and all other state statutory and common law claims” (Ex. A, § 1.) The DRA states that it “is intended to apply to resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration” and “requires all such disputes to be resolved only by an arbitrator through final and binding arbitration and not by way of court or jury trial.” (Id.) C. Prado Refused to Submit His Claims to Arbitration. On January 31, 2018, First American’s counsel e-mailed Prado’s counsel to provide him with a copy of the DRA and determine whether Prado would submit his claims to arbitration as required by the DRA. (Court Decl., 2, Ex. E.) On February 7, 2018, Prado’s counsel emailed First American’s counsel to state: “Mr. Prado intends to contest any petition to compel arbitration.” (Id. q 3, Ex. F.) When asked for an explanation as to this position, Prado’s counsel merely responded: “We do not believe the arbitration agreement you sent is enforceable against Mr. Prado.” (Id.) Despite First American’s inquiries, Prado’s counsel thereafter refused to provide any further explanation as to why the DRA is purportedly unenforceable, or why Prado would not submit his claims to arbitration. (/d.) Il Il 7 2761/034819-0465 NOTICE OF MOTION AND MOTION OF DEFENDANT 11973035.1 a02/13/18 To COMPEL ARBITRATION AND DISMISS OR STAY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rutan & Tucker, LLP attorneys at law III. THIS COURT SHOULD COMPEL PRADO’S CLAIMS TO ARBITRATION AND DISMISS THIS ACTION. The DRA expressly provides that it is governed by the FAA. (Ex. A, § 1.) Under the FAA, when considering a petition to compel arbitration, the Court’s role is limited to answering two questions: (1) whether a valid agreement to arbitrate exists; and, if so, (2) whether the arbitration agreement encompasses the dispute or claims at issue. Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F. 3d 1126, 1130 (9th Cir. 2000). If the answer to both questions is “yes,” the Court must compel arbitration. 9 U.S.C. § 4. The test under California law is the same. “[California Civil Procedure Code] Section 1281.2 requires a court to order arbitration ‘if it determines that an agreement to arbitrate ...exists.”” Mission Viejo Emergency Medical Assoc. v. Beta Healthcare Group, 197 Cal. App.4th 1146, 1153 (2011). Sections 1281.2 and 1290.2 create a summary proceeding for resolving petitions to compel arbitration. Engalla v. Permanente Medical Group, Inc., 15 Cal.4th 951, 972 (1997); Rosenthal v. Great Western Fin. Securities Corp., 14 Cal.4th 394, 413 (1996). The petitioner bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, while a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC, 55 Cal.4th 223, 236 (2012). A. Prado is Bound by a Valid Agreement to Arbitrate. Prado is bound by the DRA both because he signed it and because he continued in his employment with First American after receiving and reviewing it. Prado’s electronic signature has the same legal effect as a handwritten signature. Civ. CODE § 1633.7(a) (“signature may not be denied legal effect or enforceability solely because it is in electronic form.”). Prado accessed the DRA using his unique employee identification number and password and electronically signed the agreement. (Jarecky Decl. 499, 11.) Prado alone was authorized to use his identification number and password to access and sign the agreement, and no information suggests that a security breach allowed anyone other than Prado to do so. (Id. 495 & 11.) Accordingly, Prado’s electronic signature may be attributable to him in accordance with the Uniform Electronic Transactions Act. -8- 2761/034819-0465 NOTICE OF MOTION AND MOTION OF DEFENDANT 11973035.1 a02/13/18 To COMPEL ARBITRATION AND DISMISS OR STAY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rutan & Tucker, LLP attorneys at law Civ. CoDE § 1633.9(a) (providing that an electronic signature is attributable to a person if it was the “act” of the person, which can be shown in any manner, “including a showing of the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.”) Moreover, under the FAA and California law, an agreement to arbitrate may be implied by continued employment. Craig v. Brown & Root, Inc., 84 Cal. App. 4th 416, 420 (2000); see also Asmus v. Pac. Bell, 23 Cal.4th 1, 11 (2000) (“California law permits employers to implement policies that may become unilateral implied-in-fact contracts when employees accept them by continuing their employment.”); Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC, 55 Cal.4th 223, 236 (2012) (“A signed agreement is not necessary, however, as a party’s acceptance may be implied in fact.”). In Craig, the Court enforced the employer’s arbitration agreement based on a showing that it had mailed the agreement to the employee, the mail had not been returned, and the employee had continued her employment following the mailing. Craig, 84 Cal.App.4th at 420-21. If Prado did not wish to be bound by the DRA, he had three options. He could have elected not to select the “I Agree” button after reviewing the DRA, he could have submitted an opt-out form immediately by using the instructions in the DRA, or, within 30 days of reviewing the DRA, he could have terminated his employment with First American. Prado did neither of these, choosing to continue his employment with First American for more than five years after he reviewed and signed the DRA. Therefore, because of both his electronic signature and his continued employment, Prado is bound by the DRA. B. Prado’s Claims Are Disputes Covered by the DRA. The DRA applies to “any dispute arising out of or related to” Prado’s employment. (Ex. A, § 1.) These include “disputes regarding the employment relationship . . . termination . . . Americans With Disabilities Act . . .Family Medical Leave Act. .. [and] state statutes, if any, addressing the same or similar subject matters, and all other state statutory and common law claims,” language that fairly encompasses all of Prado’s claims. (/d.) Further, the DRA states that it “is intended to apply to resolution of disputes that otherwise would be resolved in a court of law 9- 2761/034819-0465 NOTICE OF MOTION AND MOTION OF DEFENDANT 11973035.1 a02/13/18 To COMPEL ARBITRATION AND DISMISS OR STAY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rutan & Tucker, LLP attorneys at law or before a forum other than arbitration” and extends to disputes arising under numerous specific statutes, as well as “all other state statutory and common law claims.” (/d.) Each of Prado’s claims is fundamentally a dispute arising out of and related to his employment with First American. At the heart of Prado’s Causes of Action are his allegations that his employment was terminated as the result of his disability or medical issues (Complaint 99 19, 34-35, 59, 64); he was retaliated against for exercising CFRA rights (id. 427, 59, 64); and First American did not accommodate his disabilities (id. § 42) or engage in the interactive process (id. 51). Therefore, the two principal sources of dispute between Prado and First American are: (1) whether First American unlawfully terminated Prado; and (2) whether First American properly handled Prado’s medical leave and/or alleged need for accommodation. The DRA covers both of these types of disputes and all of the claims in the Complaint, which arise out of Prado’s employment. C. California And Federal Law Favor Enforcement Of Arbitration Agreements. In the event there is any question as to the enforceability or applicability of the DRA, both California and Federal law strongly favor the enforcement of agreements to arbitrate disputes, and this presumption should dictate the enforcement of the DRA. Federal law has long favored the arbitration of disputes. See, e.g., Perry v. Thomas, 482 U.S. 483, 489 (1987) (interpreting the Federal Arbitration Act as “a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary”); St. Agnes Med. Center v. PacifiCare of Cal., 31 Cal.4th 1187, 1195 (2003) (“state law, like [federal law], reflects a strong policy favoring arbitration agreements . . .””). California courts have also expressed a similar policy favoring arbitration of disputes. Fire Fighters Union Etc. v. Vallejo, 12 Cal.3d 608, 622 (1974) (affirming order compelling arbitration: “Such a result comports with a strong public policy in California favoring peaceful resolution of employment disputes by means of arbitration”). This policy stems from the expressed intent of the state legislature in favor of resolving of disputes in arbitration. See, e.g., Valsan Partners Ltd. Partnership v. Calcor Facility, 25 Cal.App.4th 809, 816 (1994) (“[ T]he Legislature has expressed -10- 2761/034819-0465 NOTICE OF MOTION AND MOTION OF DEFENDANT 11973035.1 a02/13/18 To COMPEL ARBITRATION AND DISMISS OR STAY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rutan & Tucker, LLP attorneys at law a strong public policy in favor of arbitration. . . . As a result, courts will indulge every intendment to give effect to such proceedings.”). As a result of these presumptions, the DRA must be construed broadly, and given effect if at all possible. IV. CONCLUSION. Prado expressly agreed to arbitrate all of the claims that make up this lawsuit. Each of his seven Causes of Action is directly related to his employment, and seeks recovery for the alleged harm suffered from First American’s handling of either his alleged medical condition during his employment or the end of his employment. Rather than submitting those claims to arbitration as the DRA requires, he pursued them in an improper forum. For these reasons, First American respectfully requests that the Court compel Prado to arbitrate his claims, and that the Court dismiss, or in the alternative, stay these proceedings. Dated: February 13, 2018 RUTAN & TUCKER, LLP EDSON K. McCLELLAN KIMBERLY A. COURT ov Kiba ( Kimberly A.fourt Attorneys for Defendant FIRST AMERICAN TRUST, F.S.B tr -11- 2761/034819-0465 NOTICE OF MOTION AND MOTION OF DEFENDANT 11973035.1 a02/13/18 To COMPEL ARBITRATION AND DISMISS OR STAY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rutan & Tucker, LLP attorneys at law DECLARATION OF BRYAN JARECKY I, Bryan Jarecky, declare as follows: 1. I am employed as an HRMS Specialist, Learning and Development for First American Financial Corporation. First American Trust, F.S.B. (“First American”) is a subsidiary of First American Financial Corporation. I make this Declaration in support of the Notice Of Motion And Motion Of Defendant First American Trust, F.S.B. To Compel Arbitration. I have personal knowledge of the facts set forth in this declaration, and if called as a witness, I could and would competently testify to these facts. 2. As part of my job responsibilities, I am involved in maintaining electronic records relating to agreements and policies acknowledged by First American employees. These responsibilities include loading of electronic agreements to the KnowledgeSPOT system where employees review and acknowledge them, as well as tracking the agreements and creating assignment profiles that auto-assign the agreements. Additionally, I am familiar with the process through which employees may submit opt-out forms after accessing the agreements. 3. My responsibilities also include using the KnowledgeSPOT system’s reporting functions to verify that employees have completed the review and acknowledgment of policies agreements. The “First American Dispute Resolution Agreement” (“DRA”) is one such agreement, which First American asks employees to review and acknowledge. A true and correct copy of the DRA is attached to this declaration as Exhibit A. 4. During Mr. Prado’s tenure, First American employees were required to enter a unique identification and password in the KnowledgeSPOT system. 5. Employees are instructed not to share their unique identification and passwords with anyone. Employees select their own passwords and they are periodically prompted to change those passwords. The individual owner of the unique identification and password is the only person authorized to use those credentials to electronically acknowledge agreements. Using the unique identification and password belonging to another individual in order to electronically acknowledge an agreement would be a violation of company policy and would be a cause for discipline. If an employee suspects that his unique identification and password are in the 12- 2761/034819-0465 NOTICE OF MOTION AND MOTION OF DEFENDANT 11973035.1 a02/13/18 To COMPEL ARBITRATION AND DISMISS OR STAY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rutan & Tucker, LLP attorneys at law possession or use of an unauthorized user, he is obligated to make a report to appropriate information security personnel. 6. When employees review and acknowledge agreements in KnowledgeSPOT, including the DRA, the system creates an electronic record of the date and time when the employee completed the task. First American maintains this electronic data in the regular course of its business. I have access to this electronic data and it is part of my responsibility to maintain this electronic data. 7. In KnowledgeSPOT, during October 2011, employees received the following prompt when accessing the DRA (all emphasis in original): Please follow these steps to acknowledge receipt of the First American Dispute Resolution Agreement. (1) Access the Dispute Resolution Agreement by clicking on the above Review Agreement link; (2) Review the Dispute Resolution Agreement and then return to this acknowledgment page; (3) Click on the I Agree button above. e By clicking on the I Agree button, I hereby acknowledge that I have received, reviewed and understand First American Financial Corporation’s Dispute Resolution Agreement. e [ further understand and agree to the use of an electronic method of signature to demonstrate my acknowledgment of this Dispute Resolution Agreement. If you have any questions, please contact your local or division Human Resources representative or Corporate Human Resources at corporate.hr@firstam.com. A true and correct copy of the image displaying the above text for employees is attached to this declaration as Exhibit B. 8. The DRA itself informs employees that if any employee wishes to opt out, he “must submit a signed and dated statement on a Dispute Resolution Agreement Opt Out Form (“Form”) that can be obtained from the First American eWorkforce Service Center...[.]” The DRA further informs employees that “[i]n order to be effective, the signed and dated Form must be returned to the eWorkforce Service Center via email or fax within 30 days of the Employee’s -13- 2761/034819-0465 NOTICE OF MOTION AND MOTION OF DEFENDANT 11973035.1 a02/13/18 To COMPEL ARBITRATION AND DISMISS OR STAY 10 11 I2 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rutan & Tucker, LLP attorneys at law receipt of this Agreement.” Otherwise, if an employee does “not opt out... within 30 days of the Employee’s receipt of this Agreement, continuing the Employee’s employment constitutes mutual acceptance of the terms of this Agreement by Employee and the Company.” 9. I have reviewed electronic business records relating to Hernani Prado’s review and acknowledgment of the DRA. First American’s electronic records indicate that Mr. Prado electronically acknowledged the DRA on October 18, 2011, at 2:27 p.m. EST. A true and correct copy of the Learning History, which shows the documents that he electronically signed is attached to this declaration as Exhibit C. 10. Ihave also verified that Mr. Prado did not opt-out of the DRA by submitting the opt-out form described within the DRA. As stated in the DRA, when an employee opts out of the DRA, he must submit a signed and dated Form and return it to the eWorkforce Service Center. Once the eWorkforce Service Center received a signed Form, it logs it in the employee’s electronic personnel record. There is no Opt Out Form for the DRA in Mr. Prado’s record. A true and correct copy of the log reflecting Mr. Prado’s record with the e Workforce Service Center is attached to this declaration as Exhibit D. 11. Further, First American never received a report from Mr. Prado that his unique identification and KnowledgeSPOT password had been used by any other individual, with or without his authorization, to access KnowledgeSPOT. First American has no information suggesting that Hernani Prado was not the individual who used his identification and KnowledgeSPOT password to access KnowledgeSPOT and review and acknowledge the DRA on October 18, 2011, at 2:27 p.m. EST. First American’s security procedures and policies make it extremely unlikely that anyone other than Mr. Prado was responsible for this act. I declare under penalty of perjury under the laws of the United States and the State of California that the foregging is true and correct. Executed on this 13 day of February, 2018, at q "lL , California. A 7) JARECKY -14- 610348190465 NOTICE OF MOTION AND MOTION OF DEFENDANT 11973035.1 a02/12/18 To COMPEL ARBITRATION AND DISMISS OR STAY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Rutan & Tucker, LLP attorneys at law DECLARATION OF KIMBERLY A. COURT I, Kimberly A. Court, declare as follows: 1. I am an attorney at the law firm of Rutan & Tucker, LLP, counsel of record for Defendant First American Trust, F.S.B. (“First American”) in the above-entitled action. Iam a member in good standing of the State Bar of California. I make this Declaration in support of the Notice Of Motion And Motion Of Defendant First American Trust, F.S.B. To Compel Arbitration. I have personal knowledge of the facts set forth in this declaration and if called and sworn as a witness I could and would competently testify to them. 2. On January 31, 2018, I emailed counsel for Plaintiff Hernani Prado a letter enclosing a copy of the Dispute Resolution Agreement (“DRA”) electronically signed by Mr. Prado during his employment with First American. asked Mr. Prado’s counsel to let me know whether Mr. Prado would agree to voluntarily submit his claims to binding arbitration as called for in the DRA. A true and correct copy of my January 31, 2018 e-mail to Mr. Prado’s counsel, and the attached letter, is attached as Exhibit E. 3. On February 7, 2018, after several follow-up attempts on my part, Mr. Prado’s counsel emailed me to state: “Mr. Prado intends to contest any petition to compel arbitration.” When asked for the basis of this position, Mr. Prado’s counsel merely stated: “We do not believe the arbitration agreement you sent is enforceable against Mr. Prado.” As of the date this declaration was signed, Mr. Prado’s counsel had not offered any further explanation for his refusal to arbitrate his claims as required by the DRA. A true and correct copy of this email correspondence is attached as Exhibit F. I declare under penalty of perjury under the laws of the United States and the State of California that the foregoing is true and correct. Executed on this 13th day of February, 2018, at Costa Mesa, California. KIMBERLY A. COURT -15- 2761/034819-0465 NOTICE OF MOTION AND MOTION OF DEFENDANT 11973035.1 a02/13/18 To COMPEL ARBITRATION AND DISMISS OR STAY First American Dispute Resolution Agreement 1. How This Agreement Applies This Agreement is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. and evidences a transaction involving commerce. This Agreement applies to any dispute arising out of or related to Employee's employment with any wholly or partially owned division, affiliate or subsidiary of First American Financial Corporation ("Company") or termination of employment and survives after the employment relationship terminates. Nothing contained in this Agreement shall be construed to prevent or excuse Employee from utilizing the Company's existing internal procedures for resolution of complaints, and this Agreement is not intended to be a substitute for the utilization of such procedures. Except as it otherwise provides, this Agreement is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. This Agreement requires all such disputes to be resolved only by an arbitrator through final and binding arbitration and not by way of court or jury trial. Such disputes include without limitation disputes arising out of or relating to interpretation or application of this Agreement, but not as to the enforceability, revocability or validity of the Agreement or any portion of the Agreement. Except as it otherwise provides, this Agreement also applies, without limitation, to disputes regarding the employment relationship, trade secrets, unfair competition, compensation, breaks and rest periods, termination, or harassment and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act, Genetic Information Non-Discrimination Act, and state statutes, if any, addressing the same or similar subject matters, and all other state statutory and common law claims. 2. Limitations On How This Agreement Applies This Agreement does not apply to claims for workers compensation, state disability insurance and unemployment insurance benefits. Regardless of any other terms of this Agreement, claims may be brought before and remedies awarded by an administrative agency if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate. Such administrative claims include without limitation claims or charges brought before the Equal Employment Opportunity Commission (www.eeoc.gov), the U.S. Department of Labor (www.dol.gov), the National Labor Relations Board (www.nlrb.gov), or the Office of Federal Contract Compliance Programs (www.dol.gov/esa/ofccp). Nothing in this Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration. Disputes that may not be subject to predispute arbitration agreement as provided by the Dodd- Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) are excluded from the coverage of this Agreement. Private attorney general representative actions are not covered within the scope of this Agreement and may be maintained in a court of law, but an Employee must seek in arbitration individual remedies for him or herself under any applicable private attorney general representative action statute, and the arbitrator shall decide whether an Employee is an aggrieved person under any private attorney general statute. Dispute Resolution Agreement - October 2011 Page 1 of 4 Exhibit A, Page 16 Dispute Resolution Agreement 3. Selecting The Arbitrator The Arbitrator shall be selected by mutual agreement of the Company and the Employee. Unless the Employee and Company mutually agree otherwise, the Arbitrator shall be an attorney licensed to practice in the location where the arbitration proceeding will be conducted or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will be conducted. If for any reason the parties cannot agree to an Arbitrator, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral Arbitrator. The court shall then appoint an arbitrator, who shall act under this Agreement with the same force and effect as if the parties had selected the arbitrator by mutual agreement. The location of the arbitration proceeding shall be no more than 45 miles from the place where the Employee last worked for the Company, unless each party to the arbitration agrees in writing otherwise. 4. Starting The Arbitration The party bringing the claim must demand arbitration in writing and deliver the written demand by hand or first class mail to the other party within the applicable statute of limitations period. Any demand for arbitration made to the Company shall be provided to the Company's Corporate Legal Department, 1 First American Way, Santa Ana, CA 92707. The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration. A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such provisional relief. 5. How Arbitration Proceedings Are Conducted In arbitration, the parties will have the right to conduct adequate civil discovery, bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses, and any disputes in this regard shall be resolved by the Arbitrator. You and the Company agree to bring any dispute in arbitration on an individual basis only, and not on a class, collective, or private attorney general basis. Accordingly, (a) There will be no right or authority for any dispute to be brought, heard or arbitrated as a class action ("Class Action Waiver"). The Class Action Waiver shall not be severable from this Agreement in any case in which (1) the dispute is filed as a class action and (2) a civil court of competent jurisdiction finds the Class Action Waiver is unenforceable. In such instances, the class action must be litigated in a civil court of competent jurisdiction. (b) There will be no right or authority for any dispute to be brought, heard or arbitrated as a collective action ("Collective Action Waiver"). The Collective Action Waiver shall not be severable from this Agreement in any case in which (1) the dispute is filed as a collective action and (2) a civil court of competent jurisdiction finds the Collective Action Waiver is unenforceable. In such instances, the collective action must be litigated in a civil court of competent jurisdiction. (c) There will be no right or authority for any dispute to be brought, heard or arbitrated as a private attorney general action ("Private Attorney General Waiver"). The Private Attorney General Waiver shall be severable from this Agreement in any case in which (1) the dispute is filed as a private attorney general action and (2) a civil court of competent jurisdiction finds the Hi Cc lL A D 17 Dispute Resolution Agreement - October 2011 CXMPOILA, Fage 17 Page 2 of 4 Dispute Resolution Agreement Private Attorney General Waiver is unenforceable. In such instances, the private attorney general action must be litigated in a civil court of competent jurisdiction. Although an Employee will not be retaliated against, disciplined or threatened with discipline as a result of his or her exercising his or her rights under Section 7 of the National Labor Relations Act by the filing of or participation in a class, collective or representative action in any forum, the Company may lawfully seek enforcement of this Agreement and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class, collective or representative actions or claims. Notwithstanding any other clause contained in this Agreement, any claim that all or part of the Class Action Waiver, Collective Action Waiver or Private Attorney General Waiver is invalid, unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The Class Action Waiver, Collective Action Waiver and Private Attorney General Waiver shall be severable in any case in which the dispute is filed as an individual action and severance is necessary to ensure that the individual action proceeds in arbitration. 6. Paying For The Arbitration Each party will pay the fees for his, her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law. However, in all cases where required by law, the Company will pay the Arbitrator's and arbitration fees. If under applicable law the Company is not required to pay all of the Arbitrator's and/or arbitration fees, such fee(s) will be apportioned between the parties in accordance with said applicable law, and any disputes in that regard will be resolved by the Arbitrator. 7. The Arbitration Hearing And Award The parties will arbitrate their dispute before the Arbitrator, who shall confer with the parties regarding the conduct of the hearing and resolve any disputes the parties may have in that regard. Within 30 days of the close of the arbitration hearing, any party will have the right to prepare, serve on the other party and file with the Arbitrator a brief. The Arbitrator may award any party any remedy to which that party is entitled under applicable law, but such remedies shall be limited to those that would be available to a party in his or her individual capacity in a court of law for the claims presented to and decided by the Arbitrator, and no remedies that otherwise would be available to an individual in a court of law will be forfeited by virtue of this Agreement. The Arbitrator will issue a decision or award in writing, stating the essential findings of fact and conclusions of law. Except as may be permitted or required by law, as determined by the Arbitrator, neither a party nor an Arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all parties. A court of competent jurisdiction shall have the authority to enter a judgment upon the award made pursuant to the arbitration. 8. An Employee's Right To Opt Out Of Arbitration An Employee may submit a form stating that the Employee wishes to opt out and not be subject to this Agreement. The Employee must submit a signed and dated statement on a Dispute Resolution Agreement Opt Out Form (“Form”) that can be obtained from the First American eWorkforce Service Center by contacting eWorkforce@firstam.com or calling the Service Center at 866-908-6962 and requesting the “Dispute Resolution Agreement Opt Out Form.” The Form will be sent to employees via email. In order to be effective, the signed and dated Form must be returned to the eWorkforce Service Center via email or fax within 30 days of the Employee's receipt of this Agreement. An Employee who timely opts out as provided in this Hi Cc lL A D 10 Dispute Resolution Agreement - October 2011 CXMOILA, Faye 1o Page 3 of 4 Dispute Resolution Agreement paragraph will not be subject to any adverse employment action as a consequence of that decision and may pursue available legal remedies without regard to this Agreement. Should an Employee not opt out of this Agreement within 30 days of the Employee's receipt of this Agreement, continuing the Employee's employment constitutes mutual acceptance of the terms of this Agreement by Employee and the Company. An Employee has the right to consult with counsel of the Employee's choice concerning this Agreement. 9. Non-Retaliation It is against Company policy for any Employee to be subject to retaliation if he or she exercises his or her right to assert claims under this Agreement or opts out. If any Employee believes that he or she has been retaliated against by anyone at the Company, the Employee should immediately report this to the Human Resources Department. 10. Enforcement Of This Agreement This Agreement is the full and complete agreement relating to the formal resolution of employment-related disputes. Except as stated in paragraph 5, above, in the event any portion of this Agreement is deemed unenforceable, the remainder of this Agreement will be enforceable. If the Class Action Waiver, Collective Action Waiver or Private Attorney General Waiver is deemed to be unenforceable, the Company and Employee agree that this Agreement is otherwise silent as to any party's ability to bring a class, collective or representative action in arbitration. To acknowledge receipt of this document electronically, please click on the “I Agree” button on the acknowledgement page in Knowledge S.P.O.T. If you would prefer to acknowledge receipt of this document via paper copy, please sign and date below. Signature Print Name Employee ID # Date 10/12/11 Cc bot la th A D 10 Dispute Resolution Agreement - October 2011 CXMOILA, Faye 139 Page 4 of 4 First A m e r i c a n D i s p u t e R e s o l u t i o n A g r e e m e n t A c k n o w l e d g m e n t Please follow these steps to a c k n o w l e d g e receipt of the First American Dispute Resolution Agreement. 1. Access the Dispute Resolution A g r e e m e n t by clicking on the above R e v i e w A g r e e m e n t link. 2. Review the Dispute Resolution A g r e e m e n t and then return to this a c k n o w l e d g m e n t page. 3. Click onthe I Agree button above. « By clicking on the / A g r e e button, | hereby a c k n o w l e d g e that | have received, reviewed and u n d e r s t a n d First A m e r i c a n Financial Corporation's Dispute R e s o l u t i o n A g r e e m e n t . « | further u n d e r s t a n d and agree to the use of an electronic m e t h o d of signature to d e m o n s t r a t e my a c k n o w l e d g e m e n t of this Dispute Resolution A g r e e m e n t . If you have any questions, please contact your local or division H u m a n Resources representative or Corporate H u m a n Resources at corporate hr@firstam com . Exhibit B, Page 20 User 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 First N a m e Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Last N a m e Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Middle Initial Item Type A C K N O W L E D G E M E N T A C K N O W L E D G E M E N T A C K N O W L E D G E M E N T A C K N O W L E D G E M E N T A C K N O W L E D G E M E N T A C K N O W L E D G E M E N T A C K N O W L E D G E M E N T A C K N O W L E D G E M E N T A C K N O W L E D G E M E N T A C K N O W L E D G E M E N T A C K N O W L E D G E M E N T A C K N O W L E D G E M E N T A C K N O W L E D G E M E N T A C K N O W L E D G E M E N T A C K N O W L E D G E M E N T A C K N O W L E D G E M E N T A C K N O W L E D G E M E N T A C K N O W L E D G E M E N T A C K N O W L E D G E M E N T REFERENCE REFERENCE REFERENCE REFERENCE Entity Title Political Contributions and Activities Policy Political Contributions and Activities Policy Political Contributions and Activities Policy Political Contributions and Activities Policy First A m e r i c a n Confidential Information and Inventions A g r e e m e n t A c k n o w l e d g m e n t v.1011 The First A m e r i c a n W a y H a n d b o o k A c k n o w l e d g m e n t V.0112 First A m e r i c a n C o d e of Ethics and C o n d u c t A c k n o w l e d g e m e n t v.0812 First A m e r i c a n C o d e of Ethics and C o n d u c t A c k n o w l e d g e m e n t 2013 First A m e r i c a n Dispute Resolution A g r e e m e n t A c k n o w l e d g m e n t v.1011 CA W o r k e r s C o m p Medical Provider N e t w o r k Notice First A m e r i c a n C o d e of Ethics and C o n d u c t A c k n o w l e d g m e n t (2014) Legal R e v i e w and Entity F o r m a t i o n Policy Legal R e v i e w and Entity F o r m a t i o n Policy First American Code of Ethics and Conduct and Conflict of Interest Policy A c k n o w l e d g m e n t First American Code of Ethics and Conduct and Conflict of Interest Policy A c k n o w l e d g m e n t Trust BCP M a n u a l and A c k n o w l e d g m e n t Trust BCP M a n u a l and A c k n o w l e d g m e n t California Paid Sick Leave Policy A c k n o w l e d g m e n t The First American Way Handbook A c k n o w l e d g m e n t (2016) K n o w l e d g e S P O T - 6: L a u n c h i n g Courses K n o w l e d g e S P O T - 03: Using Your Learning Plan Licensed C o n t e n t Catalog for K n o w l e d g e S P O T K n o w l e d g e S P O T - 10: C l a s s r o o m Training Completion Date 9 / 1 5 / 2 0 1 6 07:33 P M A m e r i c a / N e w York 1 / 2 8 / 2 0 1 5 04:37 P M A m e r i c a / N e w York 1 1 / 1 6 / 2 0 1 5 07:09 P M A m e r i c a / N e w York 1 / 2 8 / 2 0 1 5 04:36 P M A m e r i c a / N e w York 1 0 / 1 8 / 2 0 1 1 02:37 P M A m e r i c a / N e w York 2 / 6 / 2 0 1 2 03:08 P M A m e r i c a / N e w York 1 1 / 2 8 / 2 0 1 2 02:59 P M A m e r i c a / N e w York 1/21/2014 05:05 PM A m e r i c a / N e w York 1 0 / 1 8 / 2 0 1 1 02:27 P M A m e r i c a / N e w York 1 / 2 1 / 2 0 1 4 05:00 P M A m e r i c a / N e w York 10/30/2014 07:21 PM A m e r i c a / N e w York 2 / 2 / 2 0 1 6 06:48 P M A m e r i c a / N e w York 3 / 1 0 / 2 0 1 5 07:15 P M A m e r i c a / N e w York 8 / 3 / 2 0 1 5 04:33 P M A m e r i c a / N e w York 8 / 1 0 / 2 0 1 6 05:13 P M A m e r i c a / N e w York 1 0 / 2 8 / 2 0 1 6 05:23 P M A m e r i c a / N e w York 4/27/2015 06:08 PM A m e r i c a / N e w York 7 / 1 0 / 2 0 1 5 05:14 P M A m e r i c a / N e w York 9 / 2 6 / 2 0 1 6 05:21 P M A m e r i c a / N e w York 2 / 9 / 2 0 1 5 07:45 P M A m e r i c a / N e w York 2 / 9 / 2 0 1 5 07:48 P M A m e r i c a / N e w York 2 / 9 / 2 0 1 5 07:49 P M A m e r i c a / N e w York 2 / 9 / 2 0 1 5 07:46 P M A m e r i c a / N e w York Completion Status A C K N O W L E D G E M E N T R E A D A N D A C K N O W L E D G E D A C K N O W L E D G E M E N T R E A D A N D A C K N O W L E D G E D A C K N O W L E D G E M E N T R E A D A N D A C K N O W L E D G E D A C K N O W L E D G E M E N T R E A D A N D A C K N O W L E D G E D A C K N O W L E D G E M E N T R E A D A N D A C K N O W L E D G E D A C K N O W L E D G E M E N T R E A D A N D A C K N O W L E D G E D A C K N O W L E D G E M E N T R E A D A N D A C K N O W L E D G E D A C K N O W L E D G E M E N T R E A D A N D A C K N O W L E D G E D A C K N O W L E D G E M E N T R E A D A N D A C K N O W L E D G E D A C K N O W L E D G E M E N T R E A D A N D A C K N O W L E D G E D A C K N O W L E D G E M E N T R E A D A N D A C K N O W L E D G E D A C K N O W L E D G E M E N T R E A D A N D A C K N O W L E D G E D A C K N O W L E D G E M E N T R E A D A N D A C K N O W L E D G E D A C K N O W L E D G E M E N T R E A D A N D A C K N O W L E D G E D A C K N O W L E D G E M E N T R E A D A N D A C K N O W L E D G E D A C K N O W L E D G E M E N T R E A D A N D A C K N O W L E D G E D A C K N O W L E D G E M E N T R E A D A N D A C K N O W L E D G E D A C K N O W L E D G E M E N T R E A D A N D A C K N O W L E D G E D A C K N O W L E D G E M E N T R E A D A N D A C K N O W L E D G E D REFERENCE CREDIT REFERENCE CREDIT REFERENCE CREDIT REFERENCE CREDIT Credit Hours 0.25 0.25 0.25 0.25 0.25 0.25 0.25 0.25 0.25 0.25 0.25 0.25 0.25 0.25 0.25 0.25 0.25 0.25 0.25 Exhibit C, Page 21 User 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 First N a m e Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Last N a m e Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Middle Initial Item Type REFERENCE REFERENCE REFERENCE REFERENCE REFERENCE REFERENCE REFERENCE REFERENCE eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING Entity Title Performance M a n a g e m e n t Overview for Employees (Quick Reference Guide) Writing Assistant Individual Contributor Policy on E m p l o y e e Receipt of Gifts, E n t e r t a i n m e n t and Other Courtesies Policy on E m p l o y e e Receipt of Gifts, E n t e r t a i n m e n t and Other Courtesies Policy on Employee Receipt of Gifts, Entertainment and Other Courtesies 2016 Goals and Performance Review Materials Microsoft eLearning Library Quick Reference Guide Microsoft eLearning Library Quick Reference Guide N e w Options for Old Features (Office 2016) P a s s w o r d Self-Service Training 2009 Information Security A w a r e n e s s Information Security A c k n o w l e d g e m e n t C o m p l i a n c e and Privacy Training 2009 The First A m e r i c a n W a y H a n d b o o k A c k n o w l e d g e m e n t V . 0 4 1 0 2010 Information Security A w a r e n e s s - Part 1: Protect NPI & Identity Theft Red Flags The C o m p l i a n c e and Privacy Training 2009 A c k n o w l e d g e m e n t 2010 Information Security A w a r e n e s s - Part 2: Business Continuity, P a s s w o r d s & Protecting Corp Assets Part 1 - Residential Lending R e f o r m O v e r v i e w A c k n o w l e d g e m e n t Part 2 - The N e w G o o d Faith Estimate A c k n o w l e d g e m e n t Part 3 - U n d e r s t a n d i n g The N e w H U D - 1 A c k n o w l e d g e m e n t Part 4 - Best Practices in Presenting the N e w H U D - 1 A c k n o w l e d g e m e n t 2 0 0 9 - 2 0 1 0 Trust Information Security A w a r e n e s s 2 0 0 9 - 2 0 1 0 Trust Information Security A w a r e n e s s A c k n o w l e d g e m e n t Completion Date 3 / 1 9 / 2 0 1 4 06:11 P M A m e r i c a / N e w York 1 / 2 3 / 2 0 1 4 04:39 P M A m e r i c a / N e w York 1 0 / 1 5 / 2 0 1 4 04:25 P M A m e r i c a / N e w York 8 / 3 / 2 0 1 5 04:25 P M A m e r i c a / N e w York 8 / 1 0 / 2 0 1 6 05:14 P M A m e r i c a / N e w York 1 / 1 1 / 2 0 1 6 06:04 P M A m e r i c a / N e w York 2 / 9 / 2 0 1 5 07:38 P M A m e r i c a / N e w York 2 / 9 / 2 0 1 5 07:43 P M A m e r i c a / N e w York 9 / 1 5 / 2 0 1 6 07:32 P M A m e r i c a / N e w York 8 / 6 / 2 0 1 2 04:48 P M A m e r i c a / N e w York 5 / 2 0 / 2 0 0 9 03:55 P M A m e r i c a / N e w York 9 / 1 7 / 2 0 0 9 02:55 P M A m e r i c a / N e w York 1 1 / 1 3 / 2 0 0 9 03:24 P M A m e r i c a / N e w York 1 1 / 2 3 / 2 0 1 0 02:43 P M A m e r i c a / N e w York 8 / 1 0 / 2 0 1 0 03:02 P M A m e r i c a / N e w York 1 1 / 2 3 / 2 0 1 0 02:43 P M A m e r i c a / N e w York 1 1 / 2 3 / 2 0 1 0 01:59 P M A m e r i c a / N e w York 1 1 / 2 3 / 2 0 1 0 02:42 P M A m e r i c a / N e w York 1 1 / 2 3 / 2 0 1 0 02:42 P M A m e r i c a / N e w York 1 1 / 2 3 / 2 0 1 0 02:41 P M A m e r i c a / N e w York 1 1 / 2 3 / 2 0 1 0 02:39 P M A m e r i c a / N e w York 1 1 / 2 3 / 2 0 1 0 02:34 P M A m e r i c a / N e w York 1 1 / 2 3 / 2 0 1 0 02:30 P M A m e r i c a / N e w York Completion Status REFERENCE CREDIT REFERENCE CREDIT REFERENCE CREDIT REFERENCE CREDIT REFERENCE CREDIT REFERENCE CREDIT REFERENCE CREDIT REFERENCE CREDIT eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E Credit Hours 0.25 0.25 0.25 0.25 0.5 Exhibit C, Page 22 User 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 First N a m e Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Last N a m e Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Middle Initial Item Type eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING Entity Title 2010 Information Security A w a r e n e s s - Part 3: Social Engineering, Incident R e s p o n s e and Clean Desk Policy 2010 Trust Business Continuity Plan Training The First A m e r i c a n W a y H a n d b o o k A c k n o w l e d g e m e n t V.0411 2011 Information Security A w a r e n e s s Information Security A w a r e n e s s For Trust E m p l o y e e s First A m e r i c a n C o d e of Ethics and C o n d u c t A c k n o w l e d g e m e n t v.1011 2011 Trust Business Continuity Plan Training E m p l o y e e e W o r k f o r c e Training First A m e r i c a n : W o r k p l a c e Ethics Preventing W o r k p l a c e H a r a s s m e n t for E m p l o y e e s P e r f o r m a n c e M a n a g e m e n t O v e r v i e w for E m p l o y e e s R E S P A Course 2 - H U D - 1 First A m e r i c a n Information Security The First A m e r i c a n W a y H a n d b o o k A c k n o w l e d g e m e n t V.0809 InfoSec Refresher Course Gifts, Gratuities and E n t e r t a i n m e n t Policy A c k n o w l e d g e m e n t E m p l o y e e e W o r k f o r c e Time and A t t e n d a n c e Training E m p l o y e e e W o r k f o r c e Training 0 9 / 2 0 1 0 Setting Goals 2012 Information Security A w a r e n e s s For Trust E m p l o y e e s 2012 Information Security A w a r e n e s s Training M o r t g a g e Fraud Prevention R E S P A Course 1 - The Law and Prohibited Practices Completion Date 1 1 / 2 3 / 2 0 1 0 02:18 P M A m e r i c a / N e w York 1 1 / 2 2 / 2 0 1 0 02:43 P M A m e r i c a / N e w York 5 / 1 2 / 2 0 1 1 04:31 P M A m e r i c a / N e w York 1 2 / 2 / 2 0 1 1 03:02 P M A m e r i c a / N e w York 9 / 1 4 / 2 0 1 1 02:16 P M A m e r i c a / N e w York 1 0 / 1 8 / 2 0 1 1 02:34 P M A m e r i c a / N e w York 1 2 / 2 / 2 0 1 1 02:02 P M A m e r i c a / N e w York 1 / 2 4 / 2 0 0 7 08:51 P M A m e r i c a / N e w York 1 2 / 2 1 / 2 0 0 5 08:30 P M A m e r i c a / N e w York 1 2 / 2 8 / 2 0 0 5 07:56 P M A m e r i c a / N e w York 1 1 / 2 3 / 2 0 1 0 02:47 P M A m e r i c a / N e w York 1 2 / 6 / 2 0 0 6 07:43 P M A m e r i c a / N e w York 4 / 2 / 2 0 0 7 08:25 P M A m e r i c a / N e w York 6 / 3 0 / 2 0 0 8 11:11 P M A m e r i c a / N e w York 2 / 2 1 / 2 0 0 8 10:45 P M A m e r i c a / N e w York 6 / 3 0 / 2 0 0 8 11:13 P M A m e r i c a / N e w York 1 / 2 4 / 2 0 0 7 08:51 P M A m e r i c a / N e w York 1 1 / 2 3 / 2 0 1 0 02:37 P M A m e r i c a / N e w York 4 / 9 / 2 0 1 4 04:52 P M A m e r i c a / N e w York 9 / 1 1 / 2 0 1 2 03:13 P M A m e r i c a / N e w York 9 / 1 1 / 2 0 1 2 03:32 P M A m e r i c a / N e w York 6 / 6 / 2 0 1 2 03:39 P M A m e r i c a / N e w York 1 2 / 6 / 2 0 0 6 07:32 P M A m e r i c a / N e w York Completion Status eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E Credit Hours 0.5 0.5 Exhibit C, Page 23 User 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 52003 First N a m e Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Hernani Last N a m e Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Prado Middle Initial Item Type eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING eLEARNING Entity Title Copyrights and T r a d e m a r k s Preventing W o r k p l a c e H a r a s s m e n t and Discrimination - 4th Edition First A m e r i c a n E r g o n o m i c s Injury and lliness Prevention P r o g r a m - First A m e r i c a n 2014 Preventing and Reporting Wire Fraud 2012 Trust Business Continuity Plan Training 2013 Trust Business Continuity Plan Training Trust Business Continuity Plan Training - 2014 Trust Business Continuity Plan Training - 2014 2015 Trust Business Continuity Plan Training 2016 Trust Business Continuity Plan Training Completion Date 5 / 1 8 / 2 0 1 1 02:40 P M A m e r i c a / N e w York 5 / 3 0 / 2 0 1 2 03:14 P M A m e r i c a / N e w York 8 / 1 4 / 2 0 0 6 08:29 P M A m e r i c a / N e w York 3 / 5 / 2 0 1 4 10:30 P M A m e r i c a / N e w York 5 / 1 4 / 2 0 1 5 05:28 P M A m e r i c a / N e w York 1 2 / 7 / 2 0 1 2 03:18 P M A m e r i c a / N e w York 1 2 / 1 6 / 2 0 1 3 06:40 P M A m e r i c a / N e w York 1 2 / 4 / 2 0 1 4 06:45 P M A m e r i c a / N e w York 9 / 1 8 / 2 0 1 5 05:54 P M A m e r i c a / N e w York 1 1 / 1 6 / 2 0 1 5 07:08 P M A m e r i c a / N e w York 1 0 / 2 8 / 2 0 1 6 05:12 P M A m e r i c a / N e w York Completion Status eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E eLEARNING C O M P L E T E Credit Hours 0.5 0.5 0.5 0.25 0.25 0.25 0.12 0.25 0.25 0.25 Exhibit C, Page 24 nt 3 co 0 Home ListAll Add Search Mylnfo Technicians N 1 customer(s) listed. ef Liss 52003 By [an [v]| search | Employee Number | Add new Ticket | Name | Employee Status / Company | Email | History | Address Phone 52003 | Add new Ticket | Hernani Prado | 77 Far | ae | | of [ J o o 6 3 0 | Modify Ticket | Customerinfo = Ticket History 17) Original Ticket Reference Number: | 70835 Date: | Thursday, June 30 2011 Time: | 14:28:06 PM Name: | |Hernani Prado | Email Address: | |hprado@firstam.com | Category: | | System Access v| Sub Category: || Payrol/HR/Timekeeping-eWorkforce ~~ V| Subject: | |LOG IN ISSUE | Description: | From: Prado, Hemani S. Sent: Thursday, June 30, 2011 1:54 PM “NzE) [To: FAHQ-RA-eWorkforce Subject: LOG IN ISSUE | am having a log in issue while changing my password. Please reset and send me a temp password. Thanks, Hernan S. Prado [Bank Operations/Data Processing First American Trust I N Phone: 714.250.8248 Fax: 7 1 4 . 4 8 1 . 8 7 4 8 [Travel is fatal to prejudice, bigotry, and narrow mindedness.” - Mark Twain Attach File (Do not use special characters in the file n a m e ): Browse... [] Delete Exhibit D, Page 25 PM Emergency: | [] The customer considers this to be an emer Date: Thursday, June 30 2071 Time: | 14:28:36 PM Last Time Technician Contacted: | Thursday, June Last Time Customer Contacted: Total Time worked so far: | 0 Hours’ Priority: | | Normal v| Submit Type: || Phone Call | Ticket Type: || Request V| Ticket Status: | CO) (® C l o s e d on Jun 30 2011 Disposition Code: | Administrative Req. Serviced By: | [Alex Alvarado | v ] Email this to Technician Court, Kimberly From: Court, Kimberly Sent: Wednesday, January 31, 2018 3:42 PM To: pag @kriegerlaw.com Cc: McClellan, Edson Subject: Prado/First American - Arbitration Attachments: 1-31 Letter to Gangitano.pdf Patrick, Please find the attached letter regarding First American’s demand that this case be moved to arbitration. Thank you, Kimberly Kimberly A. Court Rutan & Tucker, LLP 611 Anton Boulevard, 14th Floor Costa Mesa, CA 92626 (714) 662-4676 (Direct) kcourt@rutan.com www.rutan.com RUTAN Privileged And Confidential Communication. This electronic transmission, and any documents attached hereto, (a) are protected by the Electronic Communications Privacy Act (18 USC §§ 2510-2521), (b) may contain confidential and/or legally privileged information, and (c) are for the sole use of the intended recipient named above. If you have received this electronic message in error, please notify the sender and delete the electronic message. Any disclosure, copying, distribution, or use of the contents of the information received in error is strictly prohibited. 1 Exhibit E, Page 26 R U TA N Kimberly A. Court Direct Dial: (714) 662-4676 > RUTAN & TUCKER, LLP E-mail: kcourt@rutan.com January 31, 2018 VIA E-MAIL AND FIRST CLASS MAIL Patrick A. Gangitano, Esq. Krieger & Krieger, A Law Corporation 249 E. Ocean Boulevard, Suite 750 Long Beach, CA 90802 Re: Hernani Prado v. First American Trust OCSC Case No. 30-2017-00958660-CU-OE-CJC Dear Mr. Gangitano: As discussed in my January 22, 2018 email to your office, First American Trust (“First American”) has engaged our Firm to represent it in connection with the action referenced above. I write to raise the issue of arbitration, and Mr. Prado’s repudiation of his prior promise to arbitrate “any dispute arising out of or related to [his] employment with any wholly or partially owned division, affiliate or subsidiary of First American Financial Corporation (“Company”) or termination of employment[.]” I have attached the parties’ arbitration agreement (the “Agreement”) to this letter, and Mr. Prado’s acknowledgment of the same, which I understand was previously provided to you. Each of Mr. Prado’s claims relates to, or arises out of, his employment relationship with First American; thus, all of the claims Mr. Prado asserts in his Complaint belong in private, binding arbitration in accordance with the Agreement. Please advise at your earliest opportunity - but in no event later than 5:00 p.m. on February 5, 2018 - whether Mr. Prado will voluntarily submit his claims to binding arbitration as called for by the Agreement. If Mr. Prado will not do so, we will move to compel arbitration. I look forward to hearing from you soon. Sincerely, on Kimberly A. Court for RUTAN & TUCKER, LLP KAC Rutan & Tucker, LLP | 611 Anton Blvd, Suite 1400, Costa Mesa, CA 92626 PO Box 1950, Costa Mesa, CA 92628-1950 | 714-641-5100 | Fax 714-546-9035 2761/034819-0465 Orange County | Palo Alto | www.rutan.com Exhibit E, Page 27 11942177.1 a01/31/18 First American Dispute Resolution Agreement 1. How This Agreement Applies This Agreement is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. and evidences a transaction involving commerce. This Agreement applies to any dispute arising out of or related to Employee's employment with any wholly or partially owned division, affiliate or subsidiary of First American Financial Corporation ("Company") or termination of employment and survives after the employment relationship terminates. Nothing contained in this Agreement shall be construed to prevent or excuse Employee from utilizing the Company's existing internal procedures for resolution of complaints, and this Agreement is not intended to be a substitute for the utilization of such procedures. Except as it otherwise provides, this Agreement is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. This Agreement requires all such disputes to be resolved only by an arbitrator through final and binding arbitration and not by way of court or jury trial. Such disputes include without limitation disputes arising out of or relating to interpretation or application of this Agreement, but not as to the enforceability, revocability or validity of the Agreement or any portion of the Agreement. Except as it otherwise provides, this Agreement also applies, without limitation, to disputes regarding the employment relationship, trade secrets, unfair competition, compensation, breaks and rest periods, termination, or harassment and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act, Genetic Information Non-Discrimination Act, and state statutes, if any, addressing the same or similar subject matters, and all other state statutory and common law claims. 2. Limitations On How This Agreement Applies This Agreement does not apply to claims for workers compensation, state disability insurance and unemployment insurance benefits. Regardless of any other terms of this Agreement, claims may be brought before and remedies awarded by an administrative agency if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate. Such administrative claims include without limitation claims or charges brought before the Equal Employment Opportunity Commission (www.eeoc.gov), the U.S. Department of Labor (www.dol.gov), the National Labor Relations Board (www.nlrb.gov), or the Office of Federal Contract Compliance Programs (www.dol.gov/esa/ofccp). Nothing in this Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration. Disputes that may not be subject to predispute arbitration agreement as provided by the Dodd- Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) are excluded from the coverage of this Agreement. Private attorney general representative actions are not covered within the scope of this Agreement and may be maintained in a court of law, but an Employee must seek in arbitration individual remedies for him or herself under any applicable private attorney general representative action statute, and the arbitrator shall decide whether an Employee is an aggrieved person under any private attorney general statute. Dispute Resolution Agreement - October 2011 Page 1 of 4 Exhibit E, Page 28 Dispute Resolution Agreement 3. Selecting The Arbitrator The Arbitrator shall be selected by mutual agreement of the Company and the Employee. Unless the Employee and Company mutually agree otherwise, the Arbitrator shall be an attorney licensed to practice in the location where the arbitration proceeding will be conducted or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will be conducted. If for any reason the parties cannot agree to an Arbitrator, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral Arbitrator. The court shall then appoint an arbitrator, who shall act under this Agreement with the same force and effect as if the parties had selected the arbitrator by mutual agreement. The location of the arbitration proceeding shall be no more than 45 miles from the place where the Employee last worked for the Company, unless each party to the arbitration agrees in writing otherwise. 4. Starting The Arbitration The party bringing the claim must demand arbitration in writing and deliver the written demand by hand or first class mail to the other party within the applicable statute of limitations period. Any demand for arbitration made to the Company shall be provided to the Company's Corporate Legal Department, 1 First American Way, Santa Ana, CA 92707. The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration. A party may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such provisional relief. 5. How Arbitration Proceedings Are Conducted In arbitration, the parties will have the right to conduct adequate civil discovery, bring dispositive motions, and present witnesses and evidence as needed to present their cases and defenses, and any disputes in this regard shall be resolved by the Arbitrator. You and the Company agree to bring any dispute in arbitration on an individual basis only, and not on a class, collective, or private attorney general basis. Accordingly, (a) There will be no right or authority for any dispute to be brought, heard or arbitrated as a class action ("Class Action Waiver"). The Class Action Waiver shall not be severable from this Agreement in any case in which (1) the dispute is filed as a class action and (2) a civil court of competent jurisdiction finds the Class Action Waiver is unenforceable. In such instances, the class action must be litigated in a civil court of competent jurisdiction. (b) There will be no right or authority for any dispute to be brought, heard or arbitrated as a collective action ("Collective Action Waiver"). The Collective Action Waiver shall not be severable from this Agreement in any case in which (1) the dispute is filed as a collective action and (2) a civil court of competent jurisdiction finds the Collective Action Waiver is unenforceable. In such instances, the collective action must be litigated in a civil court of competent jurisdiction. (c) There will be no right or authority for any dispute to be brought, heard or arbitrated as a private attorney general action ("Private Attorney General Waiver"). The Private Attorney General Waiver shall be severable from this Agreement in any case in which (1) the dispute is filed as a private attorney general action and (2) a civil court of competent jurisdiction finds the Hi Cc lL Cc D NO Dispute Resolution Agreement - October 2011 CXMOILE, Faye 23 Page 2 of 4 Dispute Resolution Agreement Private Attorney General Waiver is unenforceable. In such instances, the private attorney general action must be litigated in a civil court of competent jurisdiction. Although an Employee will not be retaliated against, disciplined or threatened with discipline as a result of his or her exercising his or her rights under Section 7 of the National Labor Relations Act by the filing of or participation in a class, collective or representative action in any forum, the Company may lawfully seek enforcement of this Agreement and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class, collective or representative actions or claims. Notwithstanding any other clause contained in this Agreement, any claim that all or part of the Class Action Waiver, Collective Action Waiver or Private Attorney General Waiver is invalid, unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The Class Action Waiver, Collective Action Waiver and Private Attorney General Waiver shall be severable in any case in which the dispute is filed as an individual action and severance is necessary to ensure that the individual action proceeds in arbitration. 6. Paying For The Arbitration Each party will pay the fees for his, her or its own attorneys, subject to any remedies to which that party may later be entitled under applicable law. However, in all cases where required by law, the Company will pay the Arbitrator's and arbitration fees. If under applicable law the Company is not required to pay all of the Arbitrator's and/or arbitration fees, such fee(s) will be apportioned between the parties in accordance with said applicable law, and any disputes in that regard will be resolved by the Arbitrator. 7. The Arbitration Hearing And Award The parties will arbitrate their dispute before the Arbitrator, who shall confer with the parties regarding the conduct of the hearing and resolve any disputes the parties may have in that regard. Within 30 days of the close of the arbitration hearing, any party will have the right to prepare, serve on the other party and file with the Arbitrator a brief. The Arbitrator may award any party any remedy to which that party is entitled under applicable law, but such remedies shall be limited to those that would be available to a party in his or her individual capacity in a court of law for the claims presented to and decided by the Arbitrator, and no remedies that otherwise would be available to an individual in a court of law will be forfeited by virtue of this Agreement. The Arbitrator will issue a decision or award in writing, stating the essential findings of fact and conclusions of law. Except as may be permitted or required by law, as determined by the Arbitrator, neither a party nor an Arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all parties. A court of competent jurisdiction shall have the authority to enter a judgment upon the award made pursuant to the arbitration. 8. An Employee's Right To Opt Out Of Arbitration An Employee may submit a form stating that the Employee wishes to opt out and not be subject to this Agreement. The Employee must submit a signed and dated statement on a Dispute Resolution Agreement Opt Out Form (“Form”) that can be obtained from the First American eWorkforce Service Center by contacting eWorkforce@firstam.com or calling the Service Center at 866-908-6962 and requesting the “Dispute Resolution Agreement Opt Out Form.” The Form will be sent to employees via email. In order to be effective, the signed and dated Form must be returned to the eWorkforce Service Center via email or fax within 30 days of the Employee's receipt of this Agreement. An Employee who timely opts out as provided in this Hi Cc lL Cc D aN Dispute Resolution Agreement - October 2011 CXMOILE, Faye Su Page 3 of 4 Dispute Resolution Agreement paragraph will not be subject to any adverse employment action as a consequence of that decision and may pursue available legal remedies without regard to this Agreement. Should an Employee not opt out of this Agreement within 30 days of the Employee's receipt of this Agreement, continuing the Employee's employment constitutes mutual acceptance of the terms of this Agreement by Employee and the Company. An Employee has the right to consult with counsel of the Employee's choice concerning this Agreement. 9. Non-Retaliation It is against Company policy for any Employee to be subject to retaliation if he or she exercises his or her right to assert claims under this Agreement or opts out. If any Employee believes that he or she has been retaliated against by anyone at the Company, the Employee should immediately report this to the Human Resources Department. 10. Enforcement Of This Agreement This Agreement is the full and complete agreement relating to the formal resolution of employment-related disputes. Except as stated in paragraph 5, above, in the event any portion of this Agreement is deemed unenforceable, the remainder of this Agreement will be enforceable. If the Class Action Waiver, Collective Action Waiver or Private Attorney General Waiver is deemed to be unenforceable, the Company and Employee agree that this Agreement is otherwise silent as to any party's ability to bring a class, collective or representative action in arbitration. To acknowledge receipt of this document electronically, please click on the “I Agree” button on the acknowledgement page in Knowledge S.P.O.T. If you would prefer to acknowledge receipt of this document via paper copy, please sign and date below. Signature Print Name Employee ID # Date 10/12/11 Coll nn | Dispute Resolution Agreement - October 2011 CXMOILE, Faye 51 Page 4 of 4 SCO ST°0 STO SZ°0 ST0 SZ°0 STO SCO ST°0 ST°0 ST°0 S70 STO SC0 S o ST0 S o SINoH wpa.) 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JON3IYIL3Y FONFYIATY J O N I Y 3 I I Y 3ON3Y343d L N I N I D C T I M O N M I D V L I N 3 I N I D A I T M O N I D V Y I N I N I D A I T M O N N D Y I N I N I S A T I M O N I D Y I N I N I D A T T M O N M I D Y L N I W I O D A T I M O N I D Y L N I N I O D A T I M O N I D V I N I N I O D A T I M O N I D V 1 N I W I D A T T M O N I D Y L N I W I D A T I M O N I D V Y I N I W I D A T I M O N I D V I N I N I D A T I M O N I O V L N I N I D A F T M O N I D Y I N I W I D A F I M O N I O V L N I N W I D A T T I M O N I O V L N I N W I D A T I M O N I D V L N I N I D A T I M O N I I Y L N I W I D A T I M O N I O V 1 N I N I D A T T M O N N I Y CU adAL wey S 1eniuy 3IPPIN opeid opeud opeld opeld opeld oped opeid opeid opeld opeld opelq opeld opeid oped opeid opeid opeid opeld opeld oped oped opeld ope.d Swen 3se7 1euIaH {URLIDH JURUIDH ueusay JeuwISH jueusay uRuIBY ueusay {URUIDH e u a y JUBUIBY UBUIaH IURUISH jueuIay ueuIaH {UBUIDH ueusay ueusay juewsy JURUIBH IUBUIDH jueusay IURUIBH - dweN sil €00Z5 £0025 £0025 £0025 £0025 £0025 £0025 £0025 £0025 £0025 oN £0088) @ o> £0025 oo €00L6] = £0022 a n >< £00EE! £0075 £0025 £0025 £0075 £00ZS £0025 £0025 £0075 1950 Court, Kimberly From: Court, Kimberly Sent: Thursday, February 8, 2018 10:23 PM To: Patrick A. Gangitano Cc: Terrence B. Krieger; McClellan, Edson; Alice Irey Subject: RE: Prado/First American - Arbitration Hi Patrick, | understand that your position is that the agreement is not enforceable. However, | would appreciate an explanation as to the reasons for your position, so that we can meet and confer in advance of our filing a motion to compel arbitration. Can you please explain? Thank you, Kimberly Kimberly A. Court Rutan & Tucker, LLP 611 Anton Boulevard, 14th Floor Costa Mesa, CA 92626 (714) 662-4676 (Direct) kcourt@rutan.com www.rutan.com RUTAN Privileged And Confidential Communication. This electronic transmission, and any documents attached hereto, (a) are protected by the Electronic Communications Privacy Act (18 USC §§ 2510-2521), (b) may contain confidential and/or legally privileged information, and (c) are for the sole use of the intended recipient named above. If you have received this electronic message in error, please notify the sender and delete the electronic message. Any disclosure, copying, distribution, or use of the contents of the information received in error is strictly prohibited. From: Patrick A. Gangitano [mailto:pag@kriegerlaw.com] Sent: Thursday, February 8, 2018 12:00 PM To: Court, Kimberly Cc: Terrence B. Krieger ; McClellan, Edson ; Alice Irey Subject: RE: Prado/First American - Arbitration Hi Kimberly, We do not believe the arbitration agreement you sent is enforceable against Mr. Prado. Regards, Patrick A. Gangitano Attorney 1 Exhibit F, Page 33 Krieger & Krieger, A Law Corporation 249 E. Ocean Boulevard, Suite 750 Long Beach, California 90802 (562) 901-2500 PRIVILEGE AND CONFIDENTIALITY NOTICE The information in this electronic mail is intended only for the use of the individual or entity to which itis addressed, and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately. Thank you. From: Court, Kimberly [mailto:KCourt@rutan.com] Sent: Thursday, February 08, 2018 7:05 AM To: Patrick A. Gangitano Cc: Terrence B. Krieger ; McClellan, Edson ; Alice Irey Subject: RE: Prado/First American - Arbitration Hi Patrick, Can you please provide an explanation as to the grounds for Mr. Prado’s refusal to stipulate to arbitration? As you know from the attached letter, Mr. Prado sign an arbitration agreement which obligates him to arbitrate the claims at issue in this action. Thank you, Kimberly Kimberly A. Court Rutan & Tucker, LLP 611 Anton Boulevard, 14th Floor Costa Mesa, CA 92626 (714) 662-4676 (Direct) kcourt@rutan.com www.rutan.com RUTAN Privileged And Confidential Communication. This electronic transmission, and any documents attached hereto, (a) are protected by the Electronic Communications Privacy Act (18 USC §§ 2510-2521), (b) may contain confidential and/or legally privileged information, and (c) are for the sole use of the intended recipient named above. If you have received this electronic message in error, please notify the sender and delete the electronic message. Any disclosure, copying, distribution, or use of the contents of the information received in error is strictly prohibited. From: Patrick A. Gangitano [mailto:pag@kriegerlaw.com] Sent: Wednesday, February 7, 2018 2:36 PM To: Court, Kimberly Cc: Terrence B. Krieger ; McClellan, Edson ; Alice Irey Subject: RE: Prado/First American - Arbitration 2 Exhibit F, Page 34 Good afternoon Kimberly, Mr. Prado intends to contest any petition to compel arbitration. Regards, Patrick A. Gangitano Attorney Krieger & Krieger, A Law Corporation 249 E. Ocean Boulevard, Suite 750 Long Beach, California 90802 (562) 901-2500 PRIVILEGE AND CONFIDENTIALITY NOTICE The information in this electronic mail is intended only for the use of the individual or entity to which itis addressed, and may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error, please notify us immediately. Thank you. From: Court, Kimberly [mailto:KCourt@rutan.com] Sent: Wednesday, February 07, 2018 6:44 AM To: Patrick A. Gangitano Cc: Terrence B. Krieger ; McClellan, Edson Subject: FW: Prado/First American - Arbitration Patrick, | am emailing to follow up again on the attached letter. | would appreciate a response no later than close of business today as to whether Mr. Prado will voluntarily submit his claims to binding arbitration. Thank you, Kimberly Kimberly A. Court Rutan & Tucker, LLP 611 Anton Boulevard, 14th Floor Costa Mesa, CA 92626 (714) 662-4676 (Direct) kcourt@rutan.com www.rutan.com RUTAN Privileged And Confidential Communication. This electronic transmission, and any documents attached hereto, (a) are protected by the Electronic Communications Privacy Act (18 USC §§ 2510-2521), (b) may contain confidential and/or legally privileged information, and (c) are for the sole use of the intended recipient named above. If you have received this electronic message in error, please notify the sender and delete the electronic message. Any disclosure, copying, distribution, or use of the contents of the information received in error is strictly prohibited. 3 Exhibit F, Page 35 From: Court, Kimberly [mailto:KCourt@rutan.com] Sent: Monday, February 5, 2018 5:14 PM To: pag@kriegerlaw.com Cc: McClellan, Edson Subject: RE: Prado/First American - Arbitration Patrick, | wanted to follow up on the attached letter. We requested a response by close of business today, but have not heard back from you. Please advise whether Mr. Prado will voluntarily submit his claims to binding arbitration. Thank you, Kimberly Kimberly A. Court Rutan & Tucker, LLP 611 Anton Boulevard, 14th Floor Costa Mesa, CA 92626 (714) 662-4676 (Direct) kcourt@rutan.com www.rutan.com RUTAN Privileged And Confidential Communication. This electronic transmission, and any documents attached hereto, (a) are protected by the Electronic Communications Privacy Act (18 USC §§ 2510-2521), (b) may contain confidential and/or legally privileged information, and (c) are for the sole use of the intended recipient named above. If you have received this electronic message in error, please notify the sender and delete the electronic message. Any disclosure, copying, distribution, or use of the contents of the information received in error is strictly prohibited. From: Court, Kimberly [mailto:KCourt@rutan.com] Sent: Wednesday, January 31, 2018 3:42 PM To: pag@kriegerlaw.com Cc: McClellan, Edson Subject: Prado/First American - Arbitration Patrick, Please find the attached letter regarding First American's demand that this case be moved to arbitration. Thank you, Kimberly Kimberly A. Court Rutan & Tucker, LLP 611 Anton Boulevard, 14th Floor Costa Mesa, CA 92626 (714) 662-4676 (Direct) 4 Exhibit F, Page 36 kcourt@rutan.com www.rutan.com RUTAN Privileged And Confidential Communication. This electronic transmission, and any documents attached hereto, (a) are protected by the Electronic Communications Privacy Act (18 USC §§ 2510-2521), (b) may contain confidential and/or legally privileged information, and (c) are for the sole use of the intended recipient named above. If you have received this electronic message in error, please notify the sender and delete the electronic message. Any disclosure, copying, distribution, or use of the contents of the information received in error is strictly prohibited. 5 Exhibit F, Page 37 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Hernani Prado v. First American Trust OCSC Case No. 30-2017-00958660-CU-OE-CJC I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; my business address is Rutan & Tucker, LLP, 611 Anton Boulevard, Fourteenth Floor, Costa Mesa, California 92626-1931. On February 13, 2018, I served the following described as: 1. NOTICE OF MOTION AND MOTION OF DEFENDANT FIRST AMERICAN TRUST, F.S.B. TO COMPEL ARBITRATION AND DISMISS THE ACTION WITH PREJUDICE; OR IN THE ALTERNATIVE, TO STAY THE PROCEEDINGS PENDING ARBITRATION; and MEMORANDUM OF POINTS AND AUTHORITIES; and DECLARATIONS OF BRYAN JARECKY AND KIMBERLY A. COURT, AND EXHIBITS I served the above document(s) on the person(s) below as follows: See Attached Service List [v'] (BY U.S. MAIL) I enclosed the above document(s) in an envelope or package addressed to the person(s) set forth above, or on the attached service list and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with the business’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. [1] (BY MESSENGER) I enclosed the above document(s) in an envelope or package addressed to the person(s) set forth above, or on the attached service list by providing them to a professional messenger for service between the hours of 8am and 6pm. (The original declaration of service signed by the messenger is attached to our file copy of the above document(s), and can be provided upon request.) [1] (BY FAX TRANSMISSION) Based on an agreement of the parties to accept service by fax transmission, | caused the above document(s) to be faxed to the person(s)/fax number(s) set forth above, or on the attached service list. The fax number from which I caused the document(s) to be served is 714-546-9035. No error was reported by the fax machine and I caused the fax machine to print a record of the transmission, a copy of which is attached to our file copy of the above document(s), and can be provided upon request. [1] (BY E-MAIL) Based on a Court order or an agreement of the parties to accept electronic service, | caused the above document(s) to be sent to the person(s) at the e-mail address(es) set forth above, or on the attached service list. [1] (BY OVERNIGHT DELIVERY) I enclosed the above document(s) in an envelope or package provided by an overnight delivery carrier and addressed to the person(s) set forth above, or on the attached service list. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. [V1 (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. EXECUTED on February 13, 2018, at Costa Mesa, California. Fanta iSmr_ Frances Penn 2199/034819-0001 11915245.1 a01/24/18 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Hernani Prado v. First American Trust OCSC Case No. 30-2017-00958660-CU-OE-CJC KRIEGER & KRIEGER Terrence Krieger Patrick Gangitano 249 E. Ocean Blvd., Suite 750 Long Beach, CA 90802 Tel: (562) 901-2500 Fax: (562) 901-2522 E-mail: TBK@kriegerLaw.com; PAG@kriegerLaw.com Counsel for Plaintiff HERNANI PRADO 2199/034819-0001 11915245.1 a01/24/18 Penn, Frances From: Sent: To: Subject: Super donotreply@occourts.org Tuesday, February 13, 2018 2:46 PM Penn, Frances Superior Court of Orange County - Motion Reservation Request - CONFIRMATION ior Court of California, County of Orange RESERVE A MOTION DATE Your reservation request has been CONFIRMED by the Superior Court. The hearing date and time below has been reserved. You will be asked to provide your reservation number to the court at a later date. MOVING PAPERS MUST BE E-FILED WITHIN 24 HOURS AFTER COMPLETING THE ON-LINE RESERVATION. Failure to submit your moving papers within 24 hours will result in the automatic CANCELLATION of the reservation. NOTE: To EXPEDITE your MOTION filing place the appropriate Court Reservation number (e.g. 7XXXXXXX) on each Motion being submitted. Please do not Reservation N Hearing Date: Hearing Time: Department: Motion Type: Case Number: reply to this email. umber: 72754199 March 29, 2018 1:30 PM C18 Motion to Compel Arbitration 30-2017-00958660-CU-OE-CIC Case Title: Prado vs. First American Trust, F.S.B. Judicial Officer: Hon. Theodore Howard Email: fpenn@rutan.com Date of Request: February 13, 2018 Time of Request: 2:41 PM Transaction N umber: 686078821 Superior Court of California » County of Orange
