Paul Vega vs. Kaiser Foundation Health Plan, Inc.

Reply to Motion

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

© 00 J O N Un BA W N = N N N N N N N N N Em e m e m e m e m e m e m e d c o NN O N Un BA W N = O 0 0 N D R E W I N D = O Brian M. Meadows (SBN 174273) LA FOLLETTE, JOHNSON, DE HAAS, FESLER & AMES A Professional Corporation 2677 North Main Street, 9th Floor Santa Ana, CA 92705 Tel: (714) 558-7008 Fax: (714) 972-0379 Kenneth R. Pedroza (SBN 184906) Matthew S. Levinson (SBN 175191) Danica Lam (SBN 266710) COLE PEDROZA LLP 2670 Mission Street, Suite 200 San Marino, CA 91108 Tel: (626) 431-2787 Fax: (626) 431-2788 Attorneys for Defendant ELECTROMICALLY FILED Superior Court of Califarnia, County of Orange 07/27/2018 at 01:34:00 PM Clerk of the Superior Court By & Clerk, Deputy Clerk KAISER FOUNDATION HEALTH PLAN, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE PAUL VEGA, an individual, Plaintiff, v. KAISER FOUNDATION HEALTH PLAN, INC., and DOES 1-10, Inclusive, Defendants. Case No. 30-2017-00962304-CU-CMM-CIC Dept. C16 Hon. James J. Di Cesare REPLY TO PLAINTIFFS OPPOSITION TO PETITION TO COMPEL ARBITRATION Date: Time: Dept.: RESV#: August 3, 2018 9:30 a.m. C16 72804488 Action filed: December 19, 2017 1 REPLY TO OPPOSITION TO PETITION TO COMPEL ARBITRATION © 00 J O N Un BA W N = N N N N N N N N N Em e m e m e m e m e m e m e d c o NN O N Un BA W N = O 0 0 N D R E W I N D = O TABLE OF CONTENTS MEMORANDUM OF POINTS AND AUTHORITIES ......ccccccoviiiiiiiiiniiceinieeecenn 1 LIBAN ADIT TY TRI an 0050000002550 5500 A, 0,00 Hh 5 RADA 85355 1 I. THE PETITION’S ALLEGATIONS ARE DEEMED ADMITTED BECAUSE PLAINTIFF FAILED TO TIMELY FILE A RESPONSE................... 2 II. STATUTES AND DECISIONAL AUTHORITY ESTABLISH THAT THE AGREEMENT IS NEITHER A CONTRACT OF ADHESION NOR. UNCONSCIONABLE cess sssrssnssssn samssmssn sommes somsassssesn sons 2 III. PLAINTIFF'S CLAIM THAT THE ARBITRATION PROVISION IS PROCEDURALLY UNCONSCIONABLE FOR FAILURE TO PROVIDE THE RULES OF ARBITRATION IS MERITLESS .......cccccccinniennnee. 3 IV. PLAINTIFF'S CLAIM OF SUBSTANTIVE UNCONSCIONABILITY IS MERITLESS oesee se ee sae sae sae sae sane eae l V. PLAINTIFF'S CLAIM OF AMBIGUITY IS UNCOMPELLING ........cccccceueenneen. 9 CONCLUSION coisas eee 10 i REPLY TO OPPOSITION TO PETITION TO COMPEL ARBITRATION © 00 J O N Un BA W N = N N N N N N N N N Em e m e m e m e m e m e m e d c o NN O N Un BA W N = O 0 0 N D R E W I N D = O TABLE OF AUTHORITIES CASES A.D. Hoppe Co. v. Fred Katz Constr. Co. (1967) 249 Cal. APP.2d 154... eee eee eerste estes see eae eet 2 Ajamian v. CantorCO2e, L.P. (2012) 203 Cal APP-AN TTT eee eee eee eee estes sees esas 6 Armendariz v. Foundation Health Psychcare Services, Inc. (2000) S55 CalAth 223 ooo eee raeen ae ee aae eens 7,8,9 Boghos v. Certain Underwriters at Lloyd's of London (2005) 360 Cal. Ath 405... eee eters seers ste ete t teens b ee earee nanan 9 Coon v. Nicola (1993) 17 Cal. APD.Ath 1225 eee eee ete stasis 3 Fitzv. NCR Corp. (2004) VLE Coal ACEATHL TOI: ccm so sus mension sa sonst 5.505 050805050. 850.0 AREASE H H505 EHSEEASISS S505 5 Harris v. Superior Court (1986) L188 Cal. APP.3A 475. cee eee eee eee eee esses ete steer eee 1 Madden v. Kaiser Foundation Hospitals (1976) TT ATR TL, CITED ccm meso 055 0 0A 18 AR FAAS 4,5 Mercuro v. Supt. Ct. (2002) 06 Cal. APP.Ath 1607 connie eee estes sees sree setae esas 5 Mission Viejo Emergency Medical Associates v. Beta Healthcare Group (2011) 197 CalLAPP.Ath T1460 eee eects ere sees eee esas 6 Moore v. Conliffe (1994) T CALA 634 ooo eects eee eee eae eeer aes e erases aae ee naas 3 Nyulassy v. Lockheed Martin Corp. (2004) 120 CalLAPP-Ah 1267 «eee eee eee eee sees eae erases sees a ees enaees 5 Randas v. YMCA of Metropolitan Los Angeles (1993) 17 CalLAPD.Ath 158 oan t ees eteeeeaee es 6,7 Rosenthal v. Great Western Financial Sec. Corp. (1996) TA Calldth 394 co s eee eee etree eres sree staan ae ee nae eas 2,6 ii REPLY TO OPPOSITION TO PETITION TO COMPEL ARBITRATION © 00 J O N Un BA W N = N N N N N N N N N Em e m e m e m e m e m e m e d c o NN O N Un BA W N = O 0 0 N D R E W I N D = O Samaniego v. Empire Today LLC (2012) 205 Cal. App.4th 1138 o.oo eee Taheri Law Group, A.P.C. v. Sorokurs (2009) 176 Cal. App.4th 956 .....coooiieiiiie eee Zullo v. Superior Court (2011) 197 Cal. ApP.Ath 477 eee eee STATUTES Civil Code SECON 1589 ieee eee eee eee eee eee eee eee Code of Civil Procedure SECION 1281 .ovvveieieiiieieieeeieieieieieaeeereaeereaeaeaeaeaeaeaeaereaeaeaeaeanes SECION 1282.6 ...ueveeeeeieieieirieeeeeieieaeaeaeeeaeaeaeaeaeaeaeaeaeseseseseananes SECION 1283 ..oeeeieieiiiiiiieeeirieeeieeereiereaeaereaeseaeaeseaeaeaereseaeseananes SECION 1284.2 covets seaeseaeseseaenens SeCtiON 1290 .....uueieieeeieiiieirieieeeeeieeeeeaeaereaeaeaeeereaeaeaereaeaeaaa----. SECtION 1205 overeat aeaaanaees Government Code SECON 12530 cnn eee eee eee eee eee eee eee eee Health and Safety Code SECION 1340 uuu eseaeaeaeaeaeaeaeaeaeaeanes SECION 1303 ....ueeeieieieieieieirieieeeieataeaeaeereaeaeaeaeaeaeaeaereaeaeaeananes DECEIT TERT cl 5000000000 50000 550000 0A 5 SECHION 1373 cerita aeaeaeaeseaeseaeseaeaennns 111 0A BL A 5 4,5 ees 8 ----- 9 REPLY TO OPPOSITION TO PETITION TO COMPEL ARBITRATION © 00 J O N Un BA W N = N N N N N N N N N Em e m e m e m e m e m e m e d c o NN O N Un BA W N = O 0 0 N D R E W I N D = O MEMORANDUM OF POINTS AND AUTHORITIES Kaiser Foundation Health Plan, Inc. (“Kaiser” or ‘“Petitioner”) submits this Reply in support of its Petition to Compel Arbitration and Motion to Stay Action (“Petition”). Plaintiff’s Memorandum of Points and Authorities in Opposition to Motion Compelling Arbitration (“Opposition”) does not present a valid argument to deny the Petition. LEGAL ANALYSIS Kaiser has established the existence of a valid arbitration agreement covering the instant action. Specifically, the arbitration provision, at pages 63-65 of the Evidence of Coverage, provides that any dispute arising from the Agreement/EOC irrespective of legal theory shall be submitted to binding arbitration. (Declaration of Mayisha Barber (“Barber Decl.”), Exhibit B at pp. 63-65.) Furthermore, Plaintiff’s signed Enrollment Form discloses this arbitration provision. (/d., Exhibit C, at p. 4.) Although Plaintiff is correct that the Agreement is unsigned, there is no requirement that an arbitration agreement be signed. (Code Civ. Proc., § 1281.) The law only requires that the arbitration agreement be in writing. (/bid.) Further, the Agreement expressly provides that it can be accepted by payment of premiums. (Barber Decl., Exhibit A at p. 13.) The moving papers establish that premiums were paid. (Id. at, q 3.) What is more, plaintiff does not deny that he was a Kaiser member receiving Kaiser benefits pursuant to the Agreement. Plaintiff’s conduct manifests acceptance of the Agreement/EOC. (Civ. Code, § 1589; Harris v. Superior Court (1986) 188 Cal.App.3d 475, 479 [holding that “the voluntary acceptance of the benefit of a transaction constitutes consent to all the obligations arising from it, so far as the facts are known, or ought to be known, to the person accepting].) Such acceptance of benefits pursuant the Agreement/EOC binds Plaintiff to its arbitration provision, which was disclosed on the Enrollment Form he signed. It is now disingenuous to claim that he does not know whether he was contracting with Kaiser or California Choice, especially when 1 REPLY TO OPPOSITION TO PETITION TO COMPEL ARBITRATION © 00 J O N Un BA W N = N N N N N N N N N Em e m e m e m e m e m e m e d c o NN O N Un BA W N = O 0 0 N D R E W I N D = O he brings this action for medical malpractice exclusively against Kaiser, and no other party. The burden has now shifted to Plaintiff to prove by a preponderance of evidence any grounds for denial of the petition to compel arbitration. (Rosenthal v. Great Western Financial Sec. Corp. (1996) 14 Cal.4th 394, 413-414.). As shown below, Plaintiff fails to meet his burden. I. THE PETITION’S ALLEGATIONS ARE DEEMED ADMITTED BECAUSE PLAINTIFF FAILED TO TIMELY FILE A RESPONSE Because plaintiff failed to timely file a response, the Petition’s allegations are deemed admitted. Failure to timely respond to a petition to compel arbitration deems the petition’s allegations admitted. (Code Civ. Proc., § 1290; Taheri Law Group, A.P.C. v. Sorokurs (2009) 176 Cal. App.4th 956, 962; A.D. Hoppe Co. v. Fred Katz Constr. Co. (1967) 249 Cal.App.2d 154, 158.) A response must be filed within 10 days of service of the petition (or within 15 days when the petition is served by mail). (Code Civ, Proc., § 1290.6 [“[a] response shall be served and filed within 10 days after service of the petition], § 1013.) Here, Kaiser served the Petition by mail on May 3, 2018. Therefore, the response was due 15 days later, on May 18, 2018. Plaintiff did not file or serve his Opposition until July 23, 2018. He failed to timely respond, and, consequently, the Petition’s allegations are deemed admitted. Thus, the Petition should be granted. II. STATUTES AND DECISIONAL AUTHORITY ESTABLISH THAT THE AGREEMENT IS NEITHER A CONTRACT OF ADHESION NOR UNCONSCIONABLE Statutory and case law establish that the arbitration agreement, made with a health care service plan, Kaiser Foundation Health Plan, Inc., is not unconscionable or a contract of adhesion. First, the Code of Civil Procedure provides that the arbitration agreement is not unconscionable. Code of Civil Procedure section 1295 imposes certain requirements on 2 REPLY TO OPPOSITION TO PETITION TO COMPEL ARBITRATION © 00 J O N Un BA W N = N N N N N N N N N Em e m e m e m e m e m e m e d c o NN O N Un BA W N = O 0 0 N D R E W I N D = O contracts for medical services that contain a provision for arbitration of any dispute as to professional negligence of a health care provider. (Code Civ. Proc., § 1295.) It provides that arbitration agreements in a contract that meet certain statutory requirements “is not a contract of adhesion, nor unconscionable nor otherwise improper.” (Code Civ. Proc., § 1295, subd. (e).) It provides, in pertinent part: (e) Such a contract is not a contract of adhesion, nor unconscionable nor otherwise improper, where it complies with subdivisions (a), (b) and (c) of this section. (f) Subdivisions (a), (b), and (c) shall not apply to any health care service plan contract offered by an organization registered pursuant to Article 2.5 (commencing with Section 12530) of Division 3 of Title 2 of the Government Code, or licensed pursuant to Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code, which contains an arbitration agreement if the plan complies with paragraph (10) of subdivision (a) of Section 1363 of the Health and Safety Code, or otherwise has a procedure for notifying prospective subscribers of the fact that the plan has an arbitration provision, and the plan contracts conform to subdivision (h) of Section 1373 of the Health and Safety Code. (Code Civ. Proc., § 1295; Coon v. Nicola (1993) 17 Cal. App.4th 1225, 1233 [An agreement to arbitrate disputes as to professional negligence of a healthcare provider is not a contract of adhesion or unconscionable if it complies with the governing statutes].) This provision bears the Legislature’s specific endorsement. (Moore v. Conliffe (1994) 7 Cal.4th 634, 657 n. 9.) Here, the Agreement/EOC and Enrollment Form executed by Plaintiff comply with both Code of Civil Procedure section 1295 and Health and Safety Code section 1363. Each discloses the requirement to arbitrate disputes relating to the delivery of service, including claims of medical malpractice, in language substantially expressed in Section 1295, subdivision (a). (Exhibit B at pp. 63-65; Exhibit C at p. 4.) Furthermore, the Agreement/EOC meets the requirements of Health & Safety Code section 1363, subdivision (a), paragraph (10) and section 1373, subdivision (i), in 3 REPLY TO OPPOSITION TO PETITION TO COMPEL ARBITRATION © 00 J O N Un BA W N = N N N N N N N N N Em e m e m e m e m e m e m e d c o NN O N Un BA W N = O 0 0 N D R E W I N D = O that it states the plan utilizes arbitration to settle disputes, specifies the type of disputes subject to arbitration, the process to be utilized, and how arbitration is to be initiated. (Exhibit B at pp. 63-65.) The Agreement and Enrollment Form also meet the requirements of Health and Safety Code section 1363.1. The Agreement states as a separate article that Kaiser uses binding arbitration to settle disputes, including claims of medical malpractice, and that subscribers waive their right to a jury trial. (Exhibit B at p. 63.) Additionally, both the Agreement and the Enrollment Form display a disclosure immediately before the signature line provided for the representative of the group contracting with Health Plan and before the signature line provided for the individual enrolling in the health care service plan. (Exhibit A, p. 14 [group agreement]; Exhibit C, p. 4 [enrollment form].) The disclosure is prominently displaced and clearly states that the plan uses binding arbitration to settle disputes, including claims of medical malpractice, and that the enrollee is waiving his right to a jury trial for both medical malpractice, and other disputes relating to the delivery of service under the plan. (Exhibit A, p. 14 [group agreement]; Exhibit C, p. 4 [enrollment form].) These statutes are addressed in the moving papers, but Plaintiff’s opposition papers does not address them. Second, the California Supreme Court has rejected the very same unconscionability argument that Plaintiff now makes. In Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699 (1976), the Court addressed a membership agreement between Health Plan and the plaintiff's employer. (Id. at pp. 710-12.) The Court specifically found that the arbitration provision was enforceable even if the plaintiff- member had not read or otherwise received actual notice of its terms as the plaintiff’s knowledge and consent were irrelevant because the group through which the coverage was procured, plaintiff’s employer, had ample authority, as her agent, to bind her to the arbitration agreement. (Id. at pp. 705-10.) Here, the agreement that includes the arbitration provision was procured through a group, California Choice. Kaiser discussed 4 REPLY TO OPPOSITION TO PETITION TO COMPEL ARBITRATION © 00 J O N Un BA W N = N N N N N N N N N Em e m e m e m e m e m e m e d c o NN O N Un BA W N = O 0 0 N D R E W I N D = O Madden in its Memorandum of Points and Authorities in support of the Petition (at page 7), but Plaintiff fails to address, or even cite it. Plaintiff has not cited any case holding that an arbitration provision involving provision of health care services is unconscionable. Rather, the cases on which Plaintiff relies address arbitration provisions in employment contracts, not contracts with health care service plans. (E.g., Mercuro v. Supt. Ct. (2002) 96 Cal.App.4th 167; Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267; Samaniego v. Empire Today LLC (2012) 205 Cal.App.4th 1138; Opposition, pp. 4:14-15; 4:25-26; 5:3-6.) Therefore, Plaintiff has failed to establish that the subject arbitration agreement is unconscionable or a contract of adhesion. III. PLAINTIFF’S CLAIM THAT THE ARBITRATION PROVISION IS PROCEDURALLY UNCONSCIONABLE FOR FAILING TO PROVIDE THE RULES OF ARBITRATION IS MERITLESS Plaintiff contends that failure to provide a copy of the arbitration rules renders the arbitration provision procedurally unconscionable. (Opposition at p. 6:22-24.) This contention is unavailing. As addressed in the preceding section, the arbitration contract is not unconscionable. The governing statutes, including Code of Civil Procedure 1295 and Health and Safety Code sections 1363 and 1363.1, do not require that that the enrollee be provided a copy of the arbitration rules. The cases on which Plaintiff relies are inapposite. For example, Fitz v. NCR Corp. (2004) 118 Cal.App.4th 702, 722, and Zullo v. Superior Court (2011) 197 Cal. App.4th 477, 485, dealt with arbitration provisions in an employment context, not an agreement with a health care service provider, which is subject to special statutes. ! Unlike the arbitration provision in Zullo where plaintiff was required to investigate the rules of arbitration, here the EOC provides information regarding obtaining the Rules ! Plaintiff argues that “Defendant attempts to stretch and contort the United States Supreme Court’s decision in Conception [AT&T Mobility LLC v. Concepcion (2011) 131 S.Ct. 1740].” (Opposition, p. 3:1-2.) This is curious because Kaiser does not cite Conception in its moving papers. ) REPLY TO OPPOSITION TO PETITION TO COMPEL ARBITRATION © 00 J O N Un BA W N = N N N N N N N N N Em e m e m e m e m e m e m e d c o NN O N Un BA W N = O 0 0 N D R E W I N D = O of Procedure through Kaiser’s Member Service Contract Center. It also states that the California Code of Civil Procedure relating to arbitration applies. (Exhibit B at pp. 64- 65.) It provides for the manner in which arbitration can be initiated. (/bid.) It also provides for the applicable manner of service of arbitration disputes. (/bid.) The EOC is expressly identified and incorporated in the Enrollment Form. (Exhibit C, at p. 4 [“I understand that the full arbitration provision is contained in the Evidence of Coverage™].) Furthermore, procedural unconscionability looks at the making of the agreement and focuses on two factors: oppression and unfair surprise. (Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 795.) Both of which are absent in this instance. Plaintiff cannot now claim surprise. He signed the Enrollment Form. A party who signs an agreement is presumed to have read it. (Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal. App.4th 158, 163.) To hold otherwise “would permit any party to a contact to avoid a disadvantageous provision by claiming that they were not aware it existed.” (Mission Viejo Emergency Medical Associates v. Beta Healthcare Group (2011) 197 Cal. App.4th 1146, 1155.) In the absence of fraud one who signs an instrument may not avoid its terms on the ground that he did not know the contents of what he was signing. (Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 431.) Here, Plaintiff does not dispute that he signed the Enrollment Form. Thus, he is presumed to have read and understood its terms. If he did not understand the arbitration provision, he should have asked someone to explain it to him. (Randas, supra, 17 Cal.App.4th at p.163, [“Ordinarily, one who accepts or signs an instrument, which on its face is a contract, is deemed to assent to all its terms, and cannot escape liability on the ground that he has not read it.”].) What is more, the Enrollment Form provides, immediately beneath the signature line, the following acknowledgement: 6 REPLY TO OPPOSITION TO PETITION TO COMPEL ARBITRATION © 00 J O N Un BA W N = N N N N N N N N N Em e m e m e m e m e m e m e d c o NN O N Un BA W N = O 0 0 N D R E W I N D = O “My signature acknowledges that I have read Section E, the applicable arbitration disclosure of the HMO 1 selected in Section C and my decision to enroll in the medical/dental, life or vision coverage that I selected in Sections C and D.” (Exhibit C, at p. 4.) Furthermore, with regard to the Agreement/EOC, Plaintiff does not deny that he received healthcare benefits under that Agreement. Civil Code section 1589 provides that “[a] voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known, our ought to be known, to the person accepting.” Thus, the requisite oppression for procedural unconscionability is not present here when Plaintiff voluntarily accepted the terms of the Agreement/EOC. Accordingly, Plaintiff does not meet his burden of demonstrating procedural unconscionability of surprise or oppression. IV. PLAINTIFF’S CLAIM OF SUBSTANTIVE UNCONSCIONABILITY IS MERITLESS Plaintiff contends, based largely on Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 55 Cal.4th 223, that the arbitration agreement is substantively unconscionable. That contention is meritless. First, Plaintiff’s contentions and cited cases are inapplicable here. They do not address health care service plan contracts, which are the subject of particular statutes. Those statutes expressly provide for such contracts, and state that they are not unconscionable and they are not contracts of adhesion, as addressed above. Second, Plaintiff’s argument that the Agreement/EOC is substantively unconscionable by restricting discovery rights is unsupported. (Opposition at p. 7:27-28. Plaintiff does not cite any portion of the Agreement/EOC that precludes discovery. To the contrary, the Agreement/EOC provides for discovery. Indeed, it provides that the Code of Civil Procedure relating to arbitration - the California Arbitration Act (“CAA”) - applies. (Exhibit B at p. 65.) The CAA provides the methods for issuance of subpoenas for the production of documents, and procedures regarding depositions of 7 REPLY TO OPPOSITION TO PETITION TO COMPEL ARBITRATION © 00 J O N Un BA W N = N N N N N N N N N Em e m e m e m e m e m e m e d c o NN O N Un BA W N = O 0 0 N D R E W I N D = O witnesses. (Code Civ. Proc., §§ 1282.6, 1283, 1283.05.) In short, the contention that arbitration will preclude discovery is simply untrue. Third, even if Civil Code section 1295, which provides that the Agreement is neither unconscionable nor a contract of adhesion, were inapplicable, Plaintiff’s other arguments remain uncompelling. The cases on which Plaintiff relies addressed arbitration agreements where employees were left with no choice but to accept employment contracts with unilateral arbitration provisions. (Armendariz, supra, 24 Cal.4th at pp. 91-92.) Further, the agreements limited the amount of damages the employees could recover, but placed no limitation on the employer. (Ibid.) The court held that the “one-sided” nature of the agreement rendered it unconscionable. (Id. at pp. 117-119.) Unlike in Armendariz, there is no pressure to refuse a job because of a unilateral arbitration provision. (Opposition at p. 5:20 - 28.) The arbitration provision in the Agreement/EOC is not unilateral and applies to both Kaiser and the member regardless of] who initiates it. (Exhibit B at pp. 63-65, Exhibit C.) Thus, Armendariz is not controlling in this case. Finally, the agreement is not unconscionable because it would require Plaintiff to pay his party arbitrator’s fees and costs. (Opposition at p. 8:12-13.) A party’s payment of his fair share of arbitration fees and costs does not establish unconscionability. In fact, Code of Civil Procedure section 1284.2 requires that each party pay their pro-rata share of fees and costs of the neutral arbitrator, not including counsel fees or witness fees or other expenses incurred by a party for his own benefit. (Code Civ. Proc., § 1284.2.) More importantly, the California Supreme Court rejected the same argument Plaintiff now makes. In Boghos v. Certain Underwriters at Lloyd's of London (2005) 36 Cal.4th 495, the Court rejected the assertion that an arbitration clause was unenforceable because it required a party to pay costs that he would not have to pay were he suing in court, including the arbitrators’ fees. (Id. at 505-06.) 8 REPLY TO OPPOSITION TO PETITION TO COMPEL ARBITRATION © 00 J O N Un BA W N = N N N N N N N N N Em e m e m e m e m e m e m e d c o NN O N Un BA W N = O 0 0 N D R E W I N D = O The Court expressly declined to extend the Armendariz cost-shifting rule to common law claims. (Id. at 507.) It explained that the Armendariz “rule is a judicially created exception to Code of Civil Procedure section 1284.2.” (Id. at p. 508.) The exception was justified because “the agreement to arbitrate a statutory claim [e.g., a FEHA claim] is implicitly an agreement [by the employer] to abide by the substantive remedial provisions of the statute and to pay all types of cost that are unique to arbitration.” (Ibid.) “To extend Armendariz to the arbitration of claims not carefully tethered to statutory or constitutional provisions would seem an arbitrary refusal to enforce section 1284.2, a legislative act, and thus raise concerns about judicial policymaking.” (Ibid.) Thus, Plaintiff’s contention of substantive unconscionability because he has to pay fees fails pursuant to Boghos. V. PLAINTIFF'S CLAIM OF AMBIGUITY IS UNCOMPELLING Plaintiff’s claim of ambiguity is uncompelling. He argues that the terms of the Enrollment Form are not sufficiently definite to be enforced because “it is not clear which of the six-columned arbitration provisions applies to him.” (Opposition, p. 10:1-2.) This argument is unpersuasive. He says that on Page 2 of the Enrollment Form he elected a “Kaiser Permanente” plan, but that on Page 4 there is no column including an arbitration disclosure for “Kaiser Permanente.” (Exhibit C, at pp. 2, 4.) In fact, there is a disclosure column entitled “Kaiser Foundation Health Plan Enrollees.” (Exhibit C, p. 4.) The column entitled “Kaiser Foundation Health Plan Enrollees” corresponds without ambiguity to the “Kaiser Permanente” HMO, which plaintiff selected on page 2, in Section C (“MEDICAL BENEFIT”). (Exhibit C, at p. 4.) In that Section, there are six HMOs from which the plaintiff could select on the enrollment from, each in its own column. These correspond to the six arbitration disclosure columns in Section E (“YOUR LEGAL ACKNOWLEDGEMENT (Continued)”) on Page 4. Each set of columns follows the same order - Aetna, Anthem/Blue Cross, HealthNet, Kaiser, Sharp, and Western Health Advantage. There is no doubt that the disclosure under the fourth 9 REPLY TO OPPOSITION TO PETITION TO COMPEL ARBITRATION Oo 3 S N W n + Ww [A fr e N o | ) No B o No [\ 9] [ \ ] B o No - P t Jo t f d J t J et Y t J f t o o ~~ AN wn ES N Ww N o - oO \ O o o J AN wn EE N w N o - (a n) column with the heading “Kaiser Foundation Health Plan Enrollees” on Page 4 . correspondents and applies to the HMO choices in the fourth column with the heading “Kaiser Permanente” on Page 2. The lack of ambiguity is corroborated by the language on the Enrollment Form that states - immediately below Plaintiff’s signature - that: “My signature acknowledges that I have read Section E, the applicable arbitration disclosure of the HMO that I selected in Section C and my decision to enroll in the medical, dental, life or vision coverage that | selected in Sections C and D.” (Exhibit C, at p. 4.) The terms are not ambiguous; they are sufficiently definite to be enforced. CONCLUSION For the reasons stated in the moving papers and herein, the Petition should be granted, and the Court should stay this action pending completion of the arbitration proceedings. ) DATED: July 26, 2018 LA FOLLETTE, J OHNSON, DE HAAS, FESLER & AMES & COLE PEDROZA LLP By: zn Nd Tors on Kenneth R. Pedroza Matthew S. Levinson Danica Lam Attorneys for Defendant KAISER FOUNDATION HEALTH PLAN, INC. 10 REPLY TO OPPOSITION TO PETITION TO COMPEL ARBITRATION OO 0 ~~ O O Wn BB WwW NN be m N N N o N o No BN N o No N o - - - et - f t p- - p t Yt c o 3 O N Wn hh W N = O O N N Y N R W Oo PROOF OF SERVICE I am employed by Cole Pedroza LLP, in the County of Los Angeles, State of California. Iam over the age of 18 and not a party to the within action. My business address is 2670 Mission Street, Suite 200, San Marino, California 91108. On the date stated below, I served in the manner indicated below, the foregoing document described as: REPLY TO PLAINTIFF’S OPPOSITION TO PETITION TO COMPEL ARBITRATION on the parties indicated below by placing a true copy thereof, enclosed ina sealed envelope addressed as follows: Mark T. Kearney (SBN 219707) Attorneys for plaintiff’ Jason K. Smith (SBN 277923) PAUL VEGA MK SMITH, APC 9891 Irvine Center Drive, Suite 200 Irvine, CA 92618 Tel: (949) 299-2500 Fax: (949) 408-1750 BY EXPRESS MAIL OR OTHER OVERNIGHT DELIVERY - I deposited the sealed envelope in a box or other facility regularly maintained by the express service carrier, or delivered to an authorized courier or driver authorized by the express service carrier to receive documents, in an envelope or package designated by the express service] - carrier with delivery fees paid or provided for, addressed to the person on whom it is to be served, at the office address as last given by that person on any document filed in the cause and served on this office, or otherwise at the party’s place of residence. ‘1 declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 27th day of July 2018 at San Marino, California. Le Gp “Sara Mazzeo = J PROOF OF SERVICE