Suhail Farran vs. Doordash Inc.ResponseCal. Super. - 4th Dist.May 11, 2018NO 0 N N nh B W = N O N RN N N N N N N e m em e d ee em em e m ee p m 0 N O N n R W N = O D N N R W ND = O AEGIS LAW FIRM, PC SAMUEL A. WONG (State Bar No. 217104) KASHIF HAQUE (State Bar No. 218672) ELECTRONICALLY FILED Superior Court of Califarnia, County of Orange 07/10/2018 at 04:00:00 PM Clerk of the Superior Court JESSICA L. CAMPBELL (State Bar No. 280626) By Ceargina FEamire z.Deputy Clerk SHELLY D. SONG (State Bar No. 312036) 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 Attorneys for Plaintiff Suhail Farran SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE SUHAIL FARRAN, individually and on behalf of all others similarly situated, Plaintiff, VS. DOORDASH, INC.; and DOES 1-10, inclusive, Defendants. Case No. 30-2018-00992677-CU-OE-CXC PLAINTIFF SUHAIL FARRAN’S RESPONSE TO DEFENDANT DOORDASH, INC.’S PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS Date: August 29, 2018 Time: 1:30 p.m. CX-105 1 PLAINTIFF'S RESPONSE TO PETITION TO COMPEL ARBITRATION T O ® N A L RA W O N N N N N N N N N N e e e m E e e m p e ed Ww N N nn Rk W N = O D O N N E R , DD L INTRODUCTION In light of the fact that Plaintiff Suhail Farran (“Plaintiff”) filed his lawsuit against Defendant DoorDash, Inc. (“Defendant”) before Defendant filed its “Petition,” Defendant’s “Petition” to Compel Arbitration is improper because it is #ot an initiating document. Defendants’ “Petition” to Compel Arbitration is in actuality a “Motion” to Compel Arbitration and should be treated as such by the Court, including with respect to the filing of opposition papers which is governed by California Code of Civil Procedure § 1005(b). Pursuant to California Code of Civil Procedure § 1005(b), Plaintiff intends to file an opposition to Defendant’s Motion to Compel Arbitration on or before August 16, 2018, nine court days before the hearing set for Defendant’s Motion to Compel Arbitration. However, out of an abundance of caution, Plaintiff files this Response to Defendant’s “Petition,” the arguments in which will be explained in greater detail in Plaintiff’s opposition papers. II. ARGUMENT A. Defendant Failed to Submit a Binding Contractual Agreement Defendant has produced no admissible evidence of an agreement with Defendant that establishes mutual assent to waive his right to bring an action to enforce and safeguard his statutory rights and protections under the California Labor Code. B. The Class Action Waiver is Unenforceable as to PAGA The “Class Action Waiver” in Defendant’s purported arbitration agreement (“Agreement”) is unenforceable as to representative claims brought under the Private Attorneys General Act of 2004 (“PAGA”). See Iskanian v. CLS Transp. L.A., LLC, 59 Cal.4th 348, 384 (2014) (“an employment agreement [that] compels the waiver of representative claims under the PAGA [] is contrary to public policy and unenforceable as a matter of state law.”). Plaintiff seeks to amend his Complaint to dismiss his individual and class action claims, and add a PAGA cause of action. Plaintiff requested that Defendant stipulate to the amendment, but Defendant refused and filed this “Petition,” forcing Plaintiff to seek the amendment by motion. In light of Plaintiff’s intended motion, the Court should find the Class Action Waiver unenforceable as to PAGA. mn 2 PLAINTIFF'S RESPONSE TO PETITION TO COMPEL ARBITRATION © ® A Wn bn W O N N N D N D N ND N N N P m e e e e e e ed ® ~~ S N wn hk W N = DO N O L N N R W N = O C. If the Court Grants Plaintiff Leave to Amend His Complaint, Defendant’s Petition Is Moot As stated above, Plaintiff intends to file a motion for leave to amend his Complaint to dismiss his individual and class action claims, and add a PAGA cause of action. Even if Defendant’s “Petition” stays all proceedings, “[i]f the [Clourt determines that there are other issues... which are not subject to arbitration...and that a determination of such issues may make the arbitration unnecessary, the [Clourt may delay its order to arbitrate until the determination of such other issues.” California Code of Civil Procedure § 1281.2. Since Plaintiff’s proposed amendment would remove any arbitrable claims and moot Defendant’s “Petition,” the Court should first rule on Plaintiff’s motion before deciding Defendant’s “Petition.” Il. CONCLUSION For all of the foregoing reasons, which will be further explained in Plaintiff’s opposition, Plaintiff requests that the Court first rule on Plaintiff's motion for leave to amend his complaint, and find that the Class Action Waiver in Defendant’s Agreement is unenforceable, or in the alternative, find that Defendant failed to submit a binding contractual agreement in its “Petition.” Dated: July 10,2018 AEGIS LAW FIRM, PC By: Je Th Shelly I5” Song Attorneys for Plaintiff Suhail Farran 3 PLAINTIFF’S RESPONSE TO PETITION TO COMPEL ARBITRATION oO c e S I O N W y BA W N N O N D N D N N N N N DN m e m E e e m e e ee e e e d e e c o ~~ ) O N wn BA W O N = D ND N S N i n R W ND -= CERTIFICATE OF SERVICE I, the undersigned, am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action; am employed with Aegis Law Firm PC and my business address is 9811 Irvine Center Drive, Suite 100, Irvine, California 92618. On July 10, 2018, I served the foregoing document entitled eo PLAINTIFF SUHAIL FARRAN’S RESPONSE TO DEFENDANT DOORDASH, INC.S PETITION TO COMPEL ARBITRATION AND STAY PROCEEDINGS on all the appearing and/or interested parties in this action by placing [| the original [X| a true copy thereof enclosed in sealed envelope(s) addressed as follows: Stephanie Balitzer sbalitzer@gibsondunn,com Michael Holecek mbholecek@gibsondunn.com GIBSON DUNN & CRUTCHER LLP 333 S Grand Ave Los Angeles, CA 90071 Joshua S. Lipshutz jlipshutz@gibsondunn.com Austin V. Schwing ‘aschwing@gibsondunn.com Peter C. Squeri psqueri@gibsondunn.com 555 Mission Street, Suite 3000 San Francisco, CA 94105 Andrew M. Spurchise aspurchise@littler.com Sophia Behnia LITTLER MENDELSON P.C 333 Bush Street, 34 Floor San Francisco, CA 94105 Attorneys for Defendant: Doordash, Inc. x (BY ELECTRONIC TRANSMISSION) 1 caused said document(s) to be served via electronic transmission to the addressee(s) listed above on the date below. (Cal. Code Civ. Proc. § 1010.6(6); Fed. R. Civ. Proc. 5(b)(2)(E); Fed. R. Civ. Proc. 5(b)(3).) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. CERTIFICATE OF SERVICE © © 2 S N nh bse W N N O N N N N N ND O N N = o m mm e m me d e m e m e e e e c o ~ ~ O N hah B A W O N = D O O E N N RE W N = O Executed on July 10, 2018, at Irvine, California. Grethel Gonzalez ¥ Z- CERTIFICATE OF SERVICE