PetitionMotionCal. Super. - 4th Dist.October 5, 2018~~ Ww Nd N O X 3 O Y Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP MUSICK, PEELER & GARRETT LLP 624 South Grand Avenue, Suite 2000 Los Angeles, California 90017-3383 Telephone (213) 629-7600 Facsimile (213) 624-1376 Elaine M. Vukadinovich (State Bar No. 187315) e.vukadinovich@musickpeeler.com Juan A. Torres (State Bar No. 128181) J.torres@musickpeeler.com Attorneys for Defendants Merchants Building Maintenance, LLC, Oakley, Inc., and Luxottica Retail North America Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER MARIA PADRON, an individual, Plaintiff, Vs. MERCHANTS BUILDING MAINTENANCE, LLC, a California limited liability company; OAKLEY, INC., a Washington corporation ; LUXOTTICA RETAIL NORTH AMERICA, INC., an Ohio corporation; and DOES 1 through 20, inclusive, , Defendants. CASE No.: 30-2018-01023444-CU-WT-CIC Assigned to Hon. Deborah Servino, Dept. C21 Reservation ID: 72952949 NOTICE OF PETITION AND PETITION OF DEFENDANTS TO COMPEL ARBITRATION; MEMORANDUM OF POINTS AND AUTHORITIES [Filed concurrently with supporting Declarations of Blanca Millan, Billie Evans, Sharon Spence, Iman Jones, and Juan Torres, and Proposed Order] Date: Time: Dept.: February 8, 2019 10:00 a.m. C21 Action Filed: Trial Date: October 5, 2018 None Set TO PLAINTIFF AND HER ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on February 8, 2019, at 10:00 a.m., or as soon thereafter as the matter may be heard, in Department C21 of the above-entitled Court, located at 700 Civic Center Drive West, Santa Ana, California 92701, Defendants Merchants Building Maintenance, LLC (“MBM LLC”), Oakley, Inc. (“Oakley”), and Luxottica Retail North America Inc. (“Luxottica™) will and hereby do petition the Court for an order compelling Plaintiff Maria Padron 1135047.1 Case No. 30-2018-01023444-CU-WT-CIC DEFENDANTS’ NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP (“Plaintiff”) to submit all of her claims against them in this action to binding arbitration pursuant to the California Arbitration Act, California Code of Civil Procedure § 1281, et seq., and the Federal Arbitration Act, 9 U.S.C. § 1, ef seq. The Petition will be and hereby is made on the grounds all of Plaintiff’s claims are subject to an enforceable Arbitration Agreement between Plaintiff and MBM LLC (“Arbitration Agreement”), Oakley and Luxottica are third party beneficiaries of the Arbitration Agreement, and Plaintiff has sued Oakley and Luxottica as agents of MBM LLC and as joint employers with MBM LLC of Plaintiff. Despite being subject to the terms and conditions of the Arbitration Agreement, Plaintiff has refused to submit her claims to arbitration. The Petition is based on this Notice; the accompanying Memorandum of Points and Authorities; the concurrently filed Declarations of Billie Evans, Blanca Millan, Iman Jones, Sharon Spence, and Juan Torres, and all exhibits thereto; all pleadings, documents and records on file with the Court; and any other documentary and oral evidence as may be presented before or at the hearing on the Petition. DATED: December 21, 2018 BE PEELER & GARRETT LLP Es By: i ia i“ Elaine\¥ikadinovich Juan A. Torres Attorneys for Defendants Merchants Building Maintenance, LLC, Oakley, Inc., and Luxottica Retail North America Inc. 1135047.1 2 Case No. 30-2018-01023444-CU-WT-CIJC DEFENDANTS’ NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION ~N O N nn RA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP II. III. IV. 1135047.1 TABLE OF CONTENTS Page INTRODUCGCTION.......oiiiiitiiiiiinitcieiesieiesesteienst sees seeesaese s e eset ssa a era e sabe sn sessenesten 12 STATEMENT OF FACTS .......ooiiiiiiiiiiiiceniitie scree stesso e senses assess sans esessens 13 A. Plaintiffs Employment with Defendant MBM LLC ..........ccccoonivieivieinneeniceennennen 13 B. The Arbitration AGIreEmMent ........ccuevvererieririeiiriesrerre cret eese sree esters er s e sre saas 14 C. All of Plaintiff’s Claims are Subject to Arbitration Under the Arbitration Agreement, But Plaintiff Has Refused Arbitration .........ccceceevievievivenicveecvieinennens 16 THE ARBITRATION AGREEMENT REQUIRES ARBITRATION OF RE INTERAC LR TBE memmmmsmmnssno ie te hsm ms msc ESE OSES 17 1. The Arbitration Agreement Is Enforceable.........cccccvveieeiviiieviieeneiiennenns 18 2. Plaintiff Must Arbitrate Her Claims Against All Defendants....................... 19 3 Plaintiff’s Claims Arise Out Of Her Employment and Thus Must Be ATDITATEd ovi esree sree bestest 21 4. The Arbitration Agreement is Not Unconscionable..........cccccvvevverneriennnnnen. 21 CONCLUSION comms ons 5mm 15555005055 509530 50555 RSA 55 SHRARS ASA BB SAA mre 24 3 Case No. 30-2018-01023444-CU-WT-CIC DEFENDANTS’ NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION 28 MUSICK, PEELER & GARRETT LLP TABLE OF AUTHORITIES Page(s) CASES 24 Hour Fitness, Inc. v. Superior Court, 66 Cal. AppAth 1199 (1998) ic iuisisisissisisaninicsnmesersensassassnasnassesss snssssmasssamsmmmmnmsenssmssessrmsmrasssosess 20 Armendariz v. Foundation Health Psychcare Services, Inc, 24 Cal.4th 83 (2000) ....cuereriereieieiereeesresireieesseseeaeraesee sass ae eras r sasseesa s ssesressneress ns 19, 21,22 Asmus v. Pacific Bell, 23 CalvAh.), {ODN 50mm ronson se ons tmsssssn oess59055 50585055545 65555555 255585545 5mm drm msmmsmsmnmm sams masints 16 AT&T Mobility v. Concepcion, 563 U.S. 333, 131 S.Ct. 1740 (2011) ceereeereierieeieieiresrenieseeeeereeeenesaesee sa ssesse sae ssessessensens ns 15,20 Boucher v. Alliance Title Co., 127 Cal. Appiah 262 (2005) sus scsusnossssnsn aussi ssiissis ivesiisntisionasarsisbeneasansaansasanssassssasssssonsanasasammn 18 Chan v. Drexel Burnham Lambert, Inc., 178 CalLAPD.3d 632 (1986) ..c..eeiiririeirrenieeieiieieniiercete reste see sera se sae see erases eres aes ta ssn sbesaessasanes 16 Circuit City Stores, Inc. v. Adams, B32 LIS: 1S... cccommrsaemsncrsmsisisanriniossesnassnsassasasnssssesssess nmmsmss ss en nsss ssnesssasn sassas anmsans s n sesamss saones 15 Craig v. Brown & Root, 84 Cal. App.4th 416 420-21 (2000) ..ccueereireeienierreerierireereseee ese esi sre se esses ee se sees a ssssnessnens 16, 21 DiGiacinto v. Ameriko-Omserv Corp., 59 Cal. APP.Ath 629 (1997) .eeeeiieieiiierieeiecere ste rer esate erases ste se esr ete nasa a sas sa ess ennas 16 Epic Systems Corp. v. Lewis, 584 U.S. [138 S.Ct. 1612 (2018) eerie esters essere esses snes a ene ne ssa e saa ennas 15 Graham v. Scissor-Tail, Inc., 28 Cal.3d 807 (1981) uit seston assesses berets see sbe sme sra be see sane be sreses nse naensenen 20 Iskanian v. CLS Transportation Los Angeles, LLC, 99 CHLATE FUE U0 TEE, cxsincnmnoss mesons ons e5nsiesns ios esssssss sss ss 5505S Ss a5 A AAS HO 16, 20 Lagatree v. Luce, Forward, Hamilton & Scripps, 74 Cal.App.4th 1105 (1999)... be seer esse asnas sates 16, 21 Mago v. Shearson Lehman Hutton Inc., G50 F.2d G32 (OH TIE. 1992) om eenemsios 5s inns isms. 850855 5505055500555 9505045 S348 VHS SES HE ORF 16 Metalclad Corp. v. Ventana Environmental Organizational Partnership, 109 Cal App Ath 1705 (2003) cc ammssssssss smsmmsmssnsonms esas sonserssssamaes seassrssspspessssvopommmum s smmmur ar vessysns 18 1135047.1 4 Case No. 30-2018-01023444-CU-WT-CIC DEFENDANTS’ NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION BS OO 0 2 O N W h 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP Pearson Dental Supplies, Inc. v. Superior Court, A CR 5 NL 00cm issn seas shams 554255 5855538 wim mv aston mms Sy I EERE 16 Rowe v. Exline, 153 Cal. APP.4th 1276 (2007) ..c.cieuireiieeeisieieteieieeertstre stesso sses ese sasss eases eee nesssenesenans 18 St. Agnes Medical Center v. PacifiCare of Cal., 31 Cal.dth 1187 (2003)..cueiiieieiciririeentererersteestee ines teses eres b esses sss stents re s see senses aonsesaeseens 15 Stirlen v. Supercuts, Inc., 51 CalLAPP.Ath 1519 (1997) ..ceiiieiiieieieetereseeie eerste essere sass ne esas 20 Thomas v. Westlake, 204 Cal. App.4th 605 (2012) ....oceeciririeirirreiireieeere eerste eres esse rset ese se ee ennne 17 Turtle Ridge Media Group, Inc. v. Pacific Bell Directory, 140 Cal. App.4th 828 (2000) .....c.coviriiriirriereieteieeieieererie es ct teree s as ses ree sre sees ebeneneeseeneneneas 18 Vandenberg v. Superior Court, 21 Caldth 815 (1999). seers berets steers essere tener neste enes 15 West v. Henderson, 227 CalLAPP.3d 1578 (1991) viii ster e eee b essere snes sss eres srs en obese sone 20 STATUTES California, ATDIPHIION AUB ums cums i50ieimimsanmsmmmssmeessssmrssnsms ses msases eems seam sasss ma es sre ERAS 15 California Family RIGIES ACE .....ccciiiiuiieiiecerise essen ss estes esses er eres ss ese nese eens 19 Code of Civil Procedure § 1281, @f SEG. .....ccovuvvieeeseieneeierereeieeseissressessses sses essere stsnsesenes 2.9 Code of Civil Procedure § 1280, €f SEG. .....ccvvevevveveerieeceeeeeeeseeetee sree senses ess s 15,16 Code of Civil Procedure § 3545......ouiiviviveiiiininiiesessesssssssssssssssssses nessa sresssssssssessssssssnsssssosesens 20 Federal Arbitration ACL. ...ccuecveiieiiiee ieee eerr eet ects sates see ee stessraesssssssesessnsnassnessesseesnees 2,9,15 1135047.1 5 Case No. 30-2018-01023444-CU-WT-CJC DEFENDANTS’ NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION NO 0 YN nl B W ) ee N N N N N N N N = m m e m a e m p d e d p p m ~N Y n A W N , O Y N N N E W N = o 28 MUSICK, PEELER & GARRETT LLP PETITION TO COMPEL BINDING ARBITRATION Defendants Merchants Building Maintenance, LLC (“MBM LLC”), Oakley, Inc. (“Oakley”), and Luxottica Retail North America Inc. (“Luxottica”) (collectively “Defendants”) allege as follows: I. This Petition relates to a written agreement to arbitrate entered into in the County of Los Angeles, California by Plaintiff and MBM LLC (“Arbitration Agreement”) in connection with Plaintiff's employment by MBM LLC. The Agreement is in Spanish. A copy of the Agreement, which includes an accompanying acknowledgment signed by Plaintiff stating Plaintiff received, reviewed and agreed to the Agreement, is attached as Exhibit 2 to the accompanying declaration of Blanca Millan (“BM Decl.”) and as part of Exhibit 2 to the accompanying declaration of Billie Evans (“BE Decl.”). The Agreement is a standard arbitration agreement of MBM LLC that is in both English and Spanish. The Spanish version is a direct translation of the English version prepared by a certified English/Spanish translator. (BE Decl., § 3, Ex. 1; BM Decl., 9 6 and 7, Exs. 1 and 2; Declaration of Sharon Spence (“SS Decl.”)). 2. In addition to Plaintiff and MBM LLC, the Arbitration Agreement applies to MBM LLC’s agents. (BE Decl., 93 and 8, Exs. 1 and 2.) 3, Plaintiff has sued Oakley and Luxottica as “agents” of MBM LLC and as joint employers with MBM LLC of Plaintiff. (Complaint, 99, 11, 12, and 16-19.) 4. MBM LLC maintains a contract to provide, and does provide, janitorial services to Oakley. (BE Decl., q 10); (Declaration of Iman Jones (“IJ Decl.”), § 8.) 2. MBM LLC is a maintenance company that primarily provides janitorial services. Its corporate offices are located in Monterey Park, California. MBM LLC also does business in states outside of California and has customers both inside and outside California. MBM LLC purchases many products and contracts for services for its operations from vendors inside and outside of California. In conducting its operations, MBM LLC is regulated by federal agencies, including but not limited to, the United States Department of Labor. (BE Decl., 2.) 3. Oakley and Luxottica are United States companies and are wholly owned subsidiaries of Luxottica Group S.P.A (“Luxottica Group™), a publicly traded company. Oakley 1135047.1 6 Case No. 30-2018-01023444-CU-WT-CJC DEFENDANTS’ NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION 1 || and Luxottica do business and have customers in and outside of California, and purchase many \e ] products and contracts for services for their operations from vendors inside and outside of California. In conducting their operations, Oakley and Luxottica are regulated by federal B O W agencies, including, but not limited to, the United States Department of Labor. (IJ Decl., 9 2-3.) 4. Neither Oakley nor Luxottica themselves employ any janitors. (IJ Decl., § 4.) 5. Plaintiff worked for MBM LLC performing janitorial services for clients of MBM ~~ N W LLC from June 8, 2014 until she began her medical leave of absence on December 9, 2016 due to oo an alleged injury she sustained while working on December 8, 2016. Plaintiff was allegedly 9 || injured while she was working at an Oakley facility pursuant to the contract between MBM LLC 10 || and Oakley referenced above. (BE Decl., 4 8.) 11 6. Plaintiff signed the Arbitration Agreement on April 23, 2015, and Blanca Millan 12 || signed the Agreement on the same day on behalf of MBM LLC. (BE Decl., § 7, Ex. 2; BM Decl., 131/97, Ex. 2.) 14 7. On October 5, 2018, Plaintiff filed the operative original complaint in this action 15 || against Defendants alleging the following causes of action: (1) discrimination; (2) retaliation; (3) 16 || failure to prevent discrimination and retaliation; (4) failure to provide reasonable 17 || accommodations; (5) failure to engage in a good faith interactive process; (6) wrongful 18 || termination in violation of public policy; (7) declaratory judgment; and (8) failure to permit 19 || inspection of personnel and payroll records. (Complaint, Ex. 2 to Declaration of Juan Torres (“JT 20 (| Decl.) 21 8. Plaintiff alleges in her Complaint she was employed by MBM LLC and also by 22 || Luxottica and Oakley, and therefore that MBM LLC, Luxottica, and Oakley are “one and the 23 || same,” were joint employers and/or special employers, or agents or alter egos of each other, and/or 24 || joint venturers, and acted in conspiracy with each other in connection with Plaintiff's employment. 25 |[ (Complaint, 99 9, 11, 12, and 16-19, Ex. 2 to JT Decl.) 26 9 The arbitration of Plaintiff’s claims should be ordered based on the terms and 27 || conditions of the Arbitration Agreement. 28 (a) The Arbitration Agreement provides, in relevant part: MUSICK, PEELER & GARRETT LLP 1135047.1 7 Case No. 30-2018-01023444-CU-WT-CIC DEFENDANTS’ NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION ~~ 10 11 12 13 14 15 16 17 18 19 20 21 7) 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP Any controversy, dispute or claim between any employee, or prior employee, and Merchants Building Maintenance LLC (the “Company”), or the Company’s officers, members, agents or other employees, affiliated entities (including, but not limited to Merchants Building Maintenance Co.), shall be settled by binding arbitration, at the request of the employee or the Company. The arbitrability of any controversy, dispute or claim under this Agreement shall be determined by applying the substantive parts of the Federal Arbitration Act (9 U.S.C. Sections 1 and 2) and by applying applicable state law procedure, if any. Arbitration shall be the only and exclusive method for resolving any dispute covered by this Agreement, provided that either party may request an injunction, a protective or restraining order from any proper court. The claims which are to be arbitrated under this Agreement include, but are not limited to, claims of any kind for: (1) wages and other compensation, premiums, penalties (to the maximum extent permitted by law) or interest, (2) breach of contract, (3) violation of public policy or related claims, (4) wrongful termination, (5) infliction of emotional distress or other tort claims, (6) claims for unlawful discrimination, harassment and/or retaliation (including, but not limited to, on the basis of race, religious creed, color, national origin, ancestry, physical or mental disability, gender identity or expression, medical condition, marital status, age, pregnancy, sex or sexual orientation under Title VII, the California Fair Employment and Housing Act, the employment discrimination laws of any other State in which the Company does business, Americans with Disabilities Act, the Age Discrimination in Employment Act, and all other applicable local, state and federal laws) to the maximum extent allowed by law, (7) claims regarding breaches of confidentiality or improper use of confidential information, (8) claims for violation of any federal, state, local or other government law, statute, regulation or ordinance arising out of employee’s employment or separation from employment, except for claims for workers’ compensation, unemployment insurance benefits and petitions/charges that could be brought before the National Labor Relations Board. Further, while this Agreement does not prevent an employee from filing claims with the Equal Employment Opportunity Commission, or the applicable state agency (e.g., California Department of Fair Employment & Housing, Nevada Equal Rights Commission, Arizona Civil Rights Division, and so on), any dispute or claim that is not resolved through those agencies must be submitted to binding arbitration under this Agreement. Employees and the Company intend and agree that class actions and, to the maximum extent permitted by applicable law, representative action procedures (e.g., California Business and Professions Code § 17200) shall not be asserted nor will they apply in any arbitration under this Agreement and the parties agree that each will not assert such prohibited class, or representative (to the extent prohibited), actions against the other in arbitration or otherwise and that they shall only submit their own individual claims in arbitration and will not seek to represent the interests of any other person in arbitration. Further, the arbitrator shall not and does not have the authority to consolidate the claims of different employees (unless the parties so 1135047.1 8 Case No. 30-2018-01023444-CU-WT-CIC DEFENDANTS’ NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION BS ~~ O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP mutually agree), entertain class actions or, to the maximum extent permitted by law representative actions of any kind, or to permit joinder. The parties further acknowledge that they have carefully read this Agreement, understand its terms, understand that it applies during employment and thereafter to any covered disputes, have had the opportunity to have it translated for them, and to have any questions answered, and have been given time, if requested, to consult with someone of their own choosing before signing it, and that, if signed, the Agreement is entirely voluntary and is signed with full understanding of, and agreement to, the terms and conditions set forth in the Agreement. BOTH THE COMPANY AND EMPLOYEES UNDERSTAND THAT BY USING ARBITRATION TO RESOLVE DISPUTES THEY ARE GIVING UP ANY RIGHT THAT THEY MAY HAVE TO A JUDGE OR JURY TRIAL WITH REGARD TO ALL ISSUES CONCERNING EMPLOYMENT OR SEPARATION FROM EMPLOYMENT. It is intended that this Agreement shall at all times apply to Company and shall immediately apply to Employee on signing, or, if Employee refuses to sign this Agreement, this Agreement shall apply to Employee within fourteen (14) days after Employee has been provided with a copy of this Agreement and Employee continues with his or her employment with Company. Nothing in this policy affects the employee’s at-will status with the Company. (BE Decl., § 7. Ex. 2; BM Decl., § 7, Ex. 2.) b) The Arbitration Agreement also includes the following terms: (DH) The arbitration is to be conducted in accordance with the laws applicable to arbitrations in California; 2) The parties may conduct all reasonable discovery that would be permitted in the applicable Superior Court; 3) The parties may mutually select a single neutral arbitrator; 4) The parties may seek the same types of relief as would be available in court; (5) A written arbitration decision is required; and (6) The costs unique to arbitration will be paid by the Defendant. (BE Decl., 7, Ex. 2; BM Decl., J 7, Ex. 2.) c) In general, MBM LLC managers (site, area or regional managers) oversee 1135047.1 9 Case No. 30-2018-01023444-CU-WT-CIC DEFENDANTS’ NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION Et E E E R TE oo 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP the signing by employees of employment documentation, including arbitration agreements, at the branch level; they provide the documents to the employee, give the employee an opportunity to ask any questions, and then observe the employee sign such documents upon hire or when those documents are updated. Further, employees can always direct any questions they may have to Human Resources. (BE Decl., 14.) d) MBM LLCs practice is to provide to its new hires or current employees its standard arbitration agreement in either Spanish or English depending on the language preferred by the new hire or current employee, or to make available both the English and Spanish versions. (BE Decl., § 5; BM Decl., § 6.) e) On April 23, 2015, Blanca Millan, who is currently the MBM LLC Operations Manager of the MBM LLC Pomona office, provided to Plaintiff copies of the Spanish version of MBM LLC’s mutual arbitration agreement and accompanying acknowledgment. Plaintiff signed the acknowledgment on the same day, as did Ms. Millan after Plaintiff signed. Based on Ms. Millan’s practice in handling the signing by MBM LLC employees of MBM LLC employments documents, including the arbitration agreement, Plaintiff would have reviewed the agreement and acknowledgment, and signed the acknowledgment, in Ms. Millan’s presence on April 23,2015. By signing the acknowledgment, Plaintiff confirmed she reviewed and agreed to the Arbitration Agreement. (BE Decl., § 7, Ex. 2; BM Decl., 19 4, 5, and 7-9, Ex. 2.) f) Also based on her normal practice, Ms. Millan would have given Plaintiff the opportunity to ask any questions she had about the Arbitration Agreement before she signed the acknowledgment. Ms. Millan’s recollection is that Plaintiff did not ask any questions, nor did Plaintiff indicate she could not read or understand the documents or could not read Spanish. In any event, both English and Spanish versions of the documents were available at any time. (BM Decl., § 4-8.) 10. Further, MBM LLC’s standard arbitration agreement is expressly mutual. MBM LLC is bound to using the mandatory arbitration process in the same way as its employees. MBM LLC has enforced its arbitration agreement in the past, binding not only the employee at issue, but also itself, to the arbitration process. (BE Decl., § 6.) 1135047.1 10 Case No. 30-2018-01023444-CU-WT-CJC DEFENDANTS’ NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION oc NN NN nn hs W N S O 1 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP 11. This Petition to Compel Arbitration is based upon the Federal Arbitration Act, 9 U.S.C. § 1, et seq., and the California Arbitration Act, California Code of Civil Procedure § 1281, et seq., which require this Court to compel arbitration where there is an agreement to arbitrate the employment disputes at issue. 12. All of Plaintiff's claims arise out of her employment with MBM LLC, and are covered by the broad scope of the Arbitration Agreement. Thus, Plaintiff should be compelled to arbitrate her claims pursuant to the Arbitration Agreement. WHEREFORE, Defendants pray for the following relief, as necessary: 1. Court order granting Defendants’ Petition to Compel Arbitration and directing Plaintiff to submit all of her claims to binding arbitration pursuant to the Arbitration Agreement; and 2. For such other and further relief as the Court deems just and proper. DATED: December 21, 2018 MUSICK, PEELER & GARRETT LLP By: | Art br Sf Elain¢/ ¥1.Vukadinodich— Nuan/A. Torres Attorneys for Defendants Merchants Building Maintenance, LLC, Oakley, Inc., and Luxottica Retail North America Inc. 1135047.1 11 Case No. 30-2018-01023444-CU-WT-CJC DEFENDANTS’ NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION H O W N Oo 0 d N Wn 10 11 12 13] 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Maria Padron (“Plaintiff”) worked for Defendant Merchants Building Maintenance LLC (“MBM LLC”) performing janitorial services for client(s) of MBM LLC from June 8, 2014 until Plaintiff began her medical leave of absence on December 9, 2016 due to an alleged injury she sustained while working for MBM LLC on December 8, 2016 at a facility of MBM LLC’s client and Defendant Oakley, Inc. (“Oakley”). On April 23, 2015, Plaintiff entered into an agreement with MBM LLC pursuant to which she agreed that any dispute with or claim she had against MBM LLC and/or MBM LLC’s agents or affiliated entities would be resolved through binding arbitration (“Arbitration Agreement)”. Plaintiff and MBM LLC’s representative, Blanca Millan, signed the Arbitration Agreement on April 23, 2015. The Agreement provides in part: “Any controversy, dispute or claim between any employee, or prior employee, and Merchants Building Maintenance LLC (the “Company™), or the Company’s officers, members, agents or other employees, affiliated entities (including, but not limited to Merchants Building Maintenance Co.), shall be settled by binding arbitration, at the request of the employee or the Company. ... Arbitration shall be the only and exclusive method for resolving any dispute covered by this Agreement, provided that either party may request an injunction, a protective or restraining order from any proper court.” The claims that are to be arbitrated under the Arbitration Agreement include “claims of any kind for ... (3) violation of public policy or related claims, (4) wrongful termination, ... (6) claims for unlawful discrimination, harassment and/or retaliation ..., (8) claims for violation of any federal, state, local or other government law, statute, regulation or ordinance arising out of employee’s employment or separation from employment.” Although Plaintiff expressly agreed to arbitration, she and her counsel have, without providing any specific reasons, stated only generally that they “will not stipulate to arbitration in this case on contractual, procedural and substantive unconscionability grounds.” As established below, the Arbitration Agreement is valid and fully enforceable, and requires that Plaintiff’s claims be arbitrated. In addition to MBM LLC, Plaintiff has sued Oakley and Luxottica Retail North America, 1135047.1 12 Case No. 30-2018-01023444-CU-WT-CIC DEFENDANTS’ NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION 1 || Inc. (“Luxottica”) based on her allegations they and MBM LLC jointly employed Plaintiff and 2 || were the agents and alter egos of each other in connection with Plaintiff's employment. As 3 || established below, neither Oakley nor Luxottica have ever employed Plaintiff, but Plaintiff’s 4 || allegations subjects all of her claims against Oakley and Luxottica also to arbitration under the 5 || Arbitration Agreement as a matter of law. aN II. STATEMENT OF FACTS ~ A. Plaintiff’s Employment with Defendant MBM LLC MBM LLC is a maintenance company that primarily provides janitorial services for 9 || various accounts. One such account is with Oakley, which is a United States eyewear 10 (| manufacturing company wholly owned as a subsidiary by Luxottica Group S.P.A. (“Luxottica 11 || Group™), a publicly traded company. Defendant Luxottica Retail North America Inc. 12 || (“Luxottica™) is a United States eyewear retail sales company that is also wholly owned as a 13 || subsidiary of Luxottica Group. (BE Decl., 92 and 10; IJ Decl., § 2) 14 MBM LLC’s corporate offices are in Monterey Park, California and its clients are within 15 || and outside of California. MBM LLC purchases many products and contracts for services for its 16 || operations from vendors within and outside California. The same is true of Defendants Oakley 17 || and Luxottica. In conducting their operations, MBM LLC, Oakley, and Luxottica are regulated by 18 || state and federal agencies, including but not limited to, the United States Department of Labor. 19 || (BE Decl., 2; IJ Decl., ] 4.) 20 Plaintiff worked for MBM LLC from June 8, 2014 and remains employed although she left 21 || on a medical/workers’ compensation leave of absence beginning on December 9, 2016. Plaintiff 22 || alleges she was injured on December 8, 2016, while working at an Oakley facility. (BE Decl., 8) 23 || Plaintiff has never been an employee of Oakley, nor of Luxottica, contrary to Plaintiff's allegation 24 || in her Complaint. Plaintiff alleges MBM LLC, Oakley, and Luxottica employed her jointly and 25 || were agents and the alter egos of each other and joint ventures, and acted in conspiracy with each 26 || other in connection with their employment of Plaintiff. (Complaint, ]9, 11, 12, and 16-19, Ex. 2 27 || to JT Decl.) 28 MUSICK, PEELER & GARRETT.LLE 1135047.1 13 Case No. 30-2018-01023444-CU-WT-CIC DEFENDANTS’ NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION 1 B. The Arbitration Agreement 2 Since at least 2008, MBM LLC has maintained a mutual arbitration process that requires 3 || all employees to sign a mutual arbitration agreement as a condition of employment and continued 4 || employment. The agreement is in both English and Spanish. The Spanish version of the 5 || agreement is a direct translation of the English version. (BE Decl., § 3, Ex. 1; BM Decl., § 6; SS 6 || Decl.) 7 The Arbitration Agreement Plaintiff signed provides, in relevant part: 8 Any controversy, dispute or claim between any employee, or prior employee, and Merchants Building Maintenance LLC (the 9 “Company”), or the Company’s officers, members, agents or other employees, affiliated entities (including, but not limited to 10 Merchants Building Maintenance Co.), shall be settled by binding arbitration, at the request of the employee or the Company. The 11 arbitrability of any controversy, dispute or claim under this Agreement shall be determined by applying the substantive parts of 12 the Federal Arbitration Act (9 U..S.C. Sections 1 and 2) and by applying applicable state law procedure, if any. Arbitration shall be 13 the only and exclusive method for resolving any dispute covered by this Agreement, provided that either party may request an 14 injunction, a protective or restraining order from any proper court. 15 The claims which are to be arbitrated under this Agreement include, but are not limited to, claims of any kind for: (1) wages and other 16 compensation, premiums, penalties (to the maximum extent permitted by law) or interest, (2) breach of contract, (3) violation of 17 public policy or related claims, (4) wrongful termination, (5) infliction of emotional distress or other tort claims, (6) claims for 18 unlawful discrimination, harassment and/or retaliation ... to the maximum extent allowed by law, (7) claims regarding breaches of 19 confidentiality or improper use of confidential information, (8) claims for violation of any federal, state, local or other government 20 law, statute, regulation or ordinance arising out of employee’s employment or separation from employment, except for claims for 21 workers' compensation, unemployment insurance benefits and petitions/charges that could be brought before the National Labor 22 Relations Board. Further, while this Agreement does not prevent an employee from filing claims with the Equal Employment 23 Opportunity Commission, or the applicable state agency (e. g., California Department of Fair Employment & Housing, Nevada 24 Equal Rights Commission, Arizona Civil Rights Division, and so on), any dispute or claim that is not resolved through those agencies 25 must be submitted to binding arbitration under this Agreement. 26 Employees and the Company intend and agree that class actions and, to the maximum extent permitted by applicable law, representative 27 action procedures (e. g., California Business and Professions Code § 17200) shall not be asserted nor will they apply in any arbitration 28 under this Agreement and the parties agree that each will not assert MUSICK, PEELER &GARRETTLLP || 1135047.1 14 Case No. 30-2018-01023444-CU-WT-CIC DEFENDANTS’ NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION W N Oo 0 N N W a 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP such prohibited class, or representative (to the extent prohibited), actions against the other in arbitration or otherwise and that they shall only submit their own individual claims in arbitration and will not seek to represent the interests of any other person in arbitration. Further, the arbitrator shall not and does not have the authority to consolidate the claims of different employees (unless the parties so mutually agree), entertain class actions or, to the maximum extent permitted by law representative actions of any kind, or to permit joinder. The parties further acknowledge that they have carefully read this Agreement, understand its terms, understand that it applies during employment and thereafter to any covered disputes, have had the opportunity to have it translated for them, and to have any questions answered, and have been given time, if requested, to consult with someone of their own choosing before signing it, and that, if signed, the Agreement is entirely voluntary and is signed with full understanding of, and agreement to, the terms and conditions set forth in the Agreement. BOTH THE COMPANY AND EMPLOYEES UNDERSTAND THAT BY USING ARBITRATION TO RESOLVE DISPUTES THEY ARE GIVING UP ANY RIGHT THAT THEY MAY HAVE TO A JUDGE OR JURY TRIAL WITH REGARD TO ALL ISSUES CONCERNING EMPLOYMENT OR SEPARATION FROM EMPLOYMENT. It is intended that this Agreement shall at all times apply to Company and shall immediately apply to Employee on signing, or, if Employee refuses to sign this Agreement, this Agreement shall apply to Employee within fourteen (14) days after Employee has been provided with a copy of this Agreement and Employee continues with his or her employment with Company. Nothing in this policy affects the employee’s at-will status with the Company. (BE Decl, § 3, Ex. 1.) The Arbitration Agreement also includes the following terms: a) the arbitration is to be conducted in accordance with the laws applicable to arbitrations in California; b) the parties may conduct all reasonable discovery that would be permitted in the applicable Superior Court; ¢) the parties may mutually select a single neutral arbitrator; d) the parties may seek the same types of relief as would be available in court; e) a written arbitration decision is required; and f) the costs unique to arbitration will be paid by the Defendant. (BE Decl., 9 3 and 6, Ex. 1.) On April 23, 2015, Blanca Millan, who is currently the MBM LLC Operations Manager of the MBM LLC Pomona office, provided to Plaintiff copies of the Spanish version of MBM LLC's mutual arbitration agreement and accompanying acknowledgment to review and sign. Plaintiff signed the acknowledgment on the same day, as did Ms. Millan after Plaintiff signed. (BM Decl., 1135047.1 15 Case No. 30-2018-01023444-CU-WT-CIC DEFENDANTS’ NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION 1]{99 1, and 7-8.) No Based on Ms. Millan’s practice in handling the signing by other MBM LLC employees of MBM LLC employments documents, including the arbitration agreement, Ms. Millan provided A W the Spanish version because Spanish would have been the language Plaintiff indicated was her preference a that time. Plaintiff would have reviewed the agreement and acknowledgment, and signed the acknowledgment, in Ms. Millan’s presence on April 23, 2015. By signing the acknowledgment, Plaintiff confirmed she reviewed and agreed to the Arbitration Agreement. (BE Decl, § 7, Ex. 2; BM Decl., §] 4, 5, and 7-9, Ex. 2.) NO oe I Y W n Also based on her normal practice, Ms. Millan, who speaks Spanish and English fluently, 10 [| would have explained the arbitration agreement and acknowledgment to Plaintiff and Plaintiff 11 || would have reviewed them in Ms. Millan’s presence, and Ms. Millan would have given Plaintiff 12 || the opportunity to ask any questions she had about the documents before she signed the 13 || acknowledgment. Ms. Millan’s recollection is that Plaintiff did not ask any questions, nor did 14 || Plaintiff indicate she could not read or understand the documents or could not read Spanish. (BM 15 || Decl., 4-8.) 16 C. All of Plaintiff’s Claims are Subject to Arbitration Under the Arbitration 17 Agreement, But Plaintiff Has Refused Arbitration 18 All of the causes of action alleged in Plaintiff's Complaint are subject to arbitration under 19 || the Arbitration Agreement because they arise out of Plaintiff's employment with MBM LLC, as 20 || well as her alleged joint employment by Oakley and Luxottica. The actions are all premised on 21 || Plaintiff’s assertion she was discriminated and retaliated against in connection with and 22 || wrongfully terminated from her employment. The actions are for (1) discrimination; (2) 23 || retaliation; (3) failure to prevent discrimination and retaliation; (4) failure to provide reasonable 24 || accommodations; (5) failure to engage in a good faith interactive process; (6) wrongful 25 || termination in violation of public policy; (7) declaratory judgment; and (8) failure to permit 26 || inspection of personnel and payroll records. (Complaint, Ex. 2 to JT Decl.) 27 Although the Arbitration Agreement incorporates all of Plaintiffs causes of action, 28 || Plaintiff has refused to have the actions arbitrated pursuant to the Agreement. On December 3, MUSICK, PEELER &; GARRETT ILE 1135047.1 16 Case No. 30-2018-01023444-CU-WT-CIC DEFENDANTS’ NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP 2018, Plaintiff’s counsel informed MBM LLC’s counsel via email that Plaintiff would not “stipulate to arbitration” under the Agreement, but provided no specific bases for the refusal. Plaintiff’s counsel simply stated that Plaintiff “will not stipulate to arbitration in this case on contractual, procedural and substantive unconscionability grounds.” (JT Decl., § 2, Ex. 1.) III. THE ARBITRATION AGREEMENT REQUIRES ARBITRATION OF PLAINTIFFE’S CLAIMS Both the California Arbitration Act (“CAA”), codified under Code of Civil Procedure § 1280, ef seq., and the Federal Arbitration Act (“FAA”), codified under 9 U.S.C. § 1, ef seq., Ces? 59999 recognize “‘”arbitration as a speedy and relatively inexpensive means of dispute resolution” and are intended “’”to encourage persons who wish to avoid delays incident to a civil action to obtain an adjustment of their differences by a tribunal of their own choosing.” [Citation omitted.]” St. Agnes Medical Center v. PacifiCare of Cal., 31 Cal.4th 1187, 1204 (2003); see also, AT&T Mobility v. Concepcion, 563 U.S. 333, 348, 131 S.Ct. 1740, 1751 (2011). The fundamental policy underlying both Acts “is to ensure that arbitration agreements will be enforced in accordance with their terms.” Vandenberg v. Superior Court, 21 Cal.4th 815, 836, n10 (1999); see also, Concepcion, supra, 563 U.S. at 344, 131 S.Ct. at 1748. The United States Supreme Court has held repeatedly and unequivocally that private employment arbitration agreements are enforceable under the FAA regardless of any state public policy, procedural mechanism, or “unwaivable right” that purports to require otherwise. Concepcion, supra, 563 U.S. at 341-343, 131 S.Ct. at 1747-49; see also, Epic Systems Corp. v. Lewis, 584 U.S. , 138 S.Ct. 1612, 1621-32 (2018) (holding that mandatory arbitration agreements in employment, including those with class action waivers, “must be enforced” and rejecting NLRB contrary position); Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 122; 121 S.Ct. 1302, 1312-13 (2001) (confirming “that Congress intended the FAA to apply in state courts [and] preempt state anti-arbitration laws to the contrary,” in holding that the FAA requires a plaintiff to submit discrimination claims to binding arbitration pursuant to an employer’s mandatory arbitration plan). Similarly, the CAA provides, and the California Supreme Court has recognized, that pre- 1135047.1 17 Case No. 30-2018-01023444-CU-WT-CJC DEFENDANTS’ NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION © 3 O N nn Bx W N \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP dispute arbitration agreements between employers and employees are enforceable. Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th 348, 387-88 (2014); Pearson Dental Supplies, Inc. v. Superior Court, 48 Cal.4th 655, 682 (2010); see also, Code of Civil Procedure § 1280(a). 1. The Arbitration Agreement Is Enforceable General principles of contract law determine whether the parties have entered into a binding agreement to arbitrate. Chan v. Drexel Burnham Lambert, Inc., 178 Cal.App.3d 632, 640- 41 (1986). This means a party’s acceptance of an agreement may be express (e.g. Mago v. Shearson Lehman Hutton Inc., 956 F.2d 932 (9th Cir. 1992) (agreement to arbitrate included in application executed by employee); Lagatree v. Luce, Forward, Hamilton & Scripps, 74 Cal.App.4th 1105 (1999) (employer may terminate employee who refuses to sign agreement to arbitrate) or implied-in-fact, in which the employee’s continued employment constitutes her acceptance of an agreement proposed by her employer (Asmus v. Pacific Bell, 23 Cal.4th 1, 11 (2000) (implied acceptance of changed rules regarding job security); DiGiacinto v. Ameriko- Omserv Corp., 59 Cal.App.4th 629, 635 (1997) (implied acceptance of changed compensation rules); Craig v. Brown & Root, 84 Cal.App.4th 416 420-21 (2000)). Plaintiff clearly manifested her assent to enter into the Arbitration Agreement by signing it. On April 23, 2015, Plaintiff signed the Agreement, and by doing so, she agreed that she expressly waived her right to resolve employment disputes in a court of law, the arbitration agreement constituted a material term of her employment, she was advised to consult with an attorney prior to signing, MBM LLC would pay the fees and expenses associated with a binding arbitration, and she had voluntarily entered into the agreement as a material condition of her employment and voluntarily waived her right to a jury or judge trial of any disputes incorporated by the Agreement, including “[a]ny controversy, dispute or claim between any employee, or prior employee, and Merchants Building Maintenance LLC (the “Company”), or the Company’s officers, members, agents or other employees, affiliated entities.” (BE Decl., § 3 and 7, Exs. 1 and 2; BM Decl., {6 and 7, Exs. 1 and 2.) Thus, it is clear a valid contract was formed regarding arbitration of all the disputes at issue. 1135047.1 18 Case No. 30-2018-01023444-CU-WT-CIC DEFENDANTS’ NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION [N S Ww SS O X Na O N W n 1 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP 2. Plaintiff Must Arbitrate Her Claims Against All Defendants As with her claims against MBM LLC, Plaintiff's claims against Defendants Oakley and Luxottica must also be compelled to arbitration although Oakley and Luxottica are not signatories to the Arbitration Agreement. Plaintiff's claims against Oakley and Luxottica are subject to arbitration under the Arbitration Agreement first because Oakley and Luxottica are intended third party beneficiaries of the Agreement, and second because Plaintiff is estopped from refusing to arbitrate her claims against them. Oakley and Luxottica are intended third party beneficiaries of the Arbitration Agreement by virtue of the scope of the applicability of the Agreement to agents and Plaintiff’s allegations that MBM LLC, Oakley, and Luxottica are joint employers of Plaintiff and agents and alter egos of each other with regard to Plaintiff's employment. Thomas v. Westlake, 204 Cal. App.4th 605, 614 (2012). In Thomas, the court explained in pertinent part as follows the rule that a non-signatory to an arbitration agreement may enforce the agreement in a lawsuit by a plaintiff signatory against a defendant signatory if the non-signatory has been sued as an agent of the defendant signatory: “There are ... ‘exceptions to the general rule that a nonsignatory ... cannot invoke an agreement to arbitrate, without being a party to the arbitration agreement.’ [citation omitted] One such exception provides that when a plaintiff alleges a defendant acted as an agent of a party to an arbitration agreement, the defendant may enforce the agreement even though the defendant is not a party thereto. [citations omitted]. Here, the operative complaint alleged: ‘At all times relevant herein, Defendants, and each of them, acted as an agent of each other Defendant in connection with the acts and omissions alleged herein.’ ... Having alleged all defendants acted as agents of one another, [plaintiff] is bound by the legal consequences of his allegations. (See Westra, supra, 129 Cal.App.4th at p. 766, ... [plaintiff's allegations that nonsignatory to arbitration agreement acted as agent of signatory parties constituted binding judicial admissions].) And as the cases cited above hold, a plaintiffs allegations of an agency relationship among defendants is sufficient to allow the alleged agents to invoke the benefit of an arbitration agreement executed by their principal even though the agents are not parties to the agreement. [citations omitted] Moreover, it would be unfair to defendants to allow [plaintiff] to invoke agency principles when it is to this advantage to do so, by to disavow those same principles when it is not. [Citations omitted.]” Thomas, supra, 204 Cal. App.4th at 614. Plaintiff allegations that MBM LLC, Oakley, and Luxottica are joint employers of Plaintiff and agents and alter egos of each other with regard to Plaintiff's employment is also the basis for Plaintiff being estopped from refusing to arbitrate her claims against Oakley and Luxottica. Based 1135047.1 19 Case No. 30-2018-01023444-CU-WT-CJC DEFENDANTS’ NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION H W ~~ O N W n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP on the well-established rule of equitable estoppel, a plaintiff may be estopped from denying arbitration against non-signatories to an arbitration agreement to which the plaintiff is a party if the plaintiff “sues [the] non-signatories as related or affiliated persons with the signatory entity.” Rowe v. Exline, 153 Cal. App.4th 1276, 1287 (2007); see also, Turtle Ridge Media Group, Inc. v. Pacific Bell Directory, 140 Cal. App.4th 828, 833 (2006); Metalclad Corp. v. Ventana Environmental Organizational Partnership, 109 Cal.App.4th 1705, 1713-14 (2003). “[T]he estoppel doctrine in this context does not require a conscious or subjective intent to avoid arbitration, but turns upon the nexus between the contract and the causes of action asserted.” Rowe, supra, 153 Cal.App.4th at 1289. “Claims that rely upon, make reference to, or are intertwined with claims under the subject arbitration agreement are arbitrable.” Id. at 1287; see also, Boucher v. Alliance Title Co., 127 Cal.App.4th 262, 270 (2005) (holding that the plaintiff’s claims against non-signatory defendant were “intimately founded in and intertwined” with the underlying agreement and therefore estopping the plaintiff from avoiding arbitration of his claims against the non-signatory defendant). Thus, the estoppel doctrine “prevents a party from playing fast and loose with its commitment to arbitrate, honoring it when advantageous and circumventing it to gain undue advantage.” Metalclad Corp., supra, 109 Cal.App.4th at 1714. A plaintiff employee is required to arbitrate her claims under an arbitration agreement not only against the employer with whom she had the agreement, but also against a non-signatory third party company. Boucher, supra, 127 Cal. App.4th at 265-266. Here, Defendants MBM LLC, Oakley, and Luxottica are jointly named as Defendants in each and every cause of action alleged in Plaintiff's Complaint based on the allegations they are joint employers of Plaintiff and agents or alter egos of each other with regard to Plaintiffs employment. (Complaint, 99, 11, 12, and 16-19, Ex. 2 to JT Decl.) For instance, in paragraph 9 of her Complaint, Plaintiff alleges, “At all relevant times herein, MERCHANTS, OAKLEY, and LUXOTTICA ... were Plaintiff's employer”, and in paragraph 11, Plaintiff alleges “that at all relevant times herein, Defendants, and each of them, were the agents, ..., managing agents, ..., coconspirators, ..., joint employers, alter egos, ... and in doing the things alleged herein, were acting at least in part within the course and scope of said agency ... .” Furthermore, the claims 1135047.1 20 Case No. 30-2018-01023444-CU-WT-CIC DEFENDANTS’ NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP against Oakley and Luxottica arise out of the same facts and are not distinguishable from the claims against MBM LLC; the facts are inherently inseparable from the arbitral claims against MBM LLC. Accordingly, Plaintiff must be compelled to arbitrate her claims against all Defendants. 3. Plaintiff’s Claims Arise Out Of Her Employment and Thus Must Be Arbitrated The Arbitration Agreement states in pertinent part, “[a]ny controversy, dispute or claim between any employee, or prior employee, and Merchants Building Maintenance LLC (the “Company™), or the Company’s officers, members, agents or other employees, affiliated entities (including, but not limited to Merchants Building Maintenance Co.), shall be settled by binding arbitration, ... . ” The Arbitration Agreement expressly provides that the claims covered by the agreement include all claims “arising out of employee’s employment or separation from employment.” (BE Decl., §3, Ex. I, p. 1.) Plaintiff’s claims are all alleged against all of the Defendants, and all arise out of or relate to her employment with MBM LLC, and, as alleged by Plaintiff, also with Oakley and Luxottica. Plaintiff’s Complaint alleges she was discriminated and retaliated against, and harassed by Defendants because of her age and alleged disability and medical condition, and she was wrongfully terminated from her employment with all of the Defendants. Plaintiff also contends Defendants violated the California Family Rights Act by refusing to provide to her family care and medical leave she requested. Plaintiff further alleges Defendants failed to comply with her request to be allowed to inspect or to provide to her a copy of her personnel and payroll records. The language of the Arbitration Agreement clearly encompasses all of Plaintiff’s claims. (Complaint, Ex. 2 to JT Decl.) 4. The Arbitration Agreement is Not Unconscionable Agreements to arbitrate are unenforceable as unconscionable only where they are both procedurally and substantively unconscionable. Armendariz v. Foundation Health Psychcare Services, Inc, 24 Cal.4th 83, 113-14 (2000). “The procedural element focuses on the unequal bargaining positions and hidden terms common in the context of adhesion contracts. [citation 1135047.1 21 Case No. 30-2018-01023444-CU-WT-CIC DEFENDANTS’ NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION BS NO 0 N I O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP omitted] While courts have defined the substantive element in various ways, it traditionally involves contract terms that are so one-sided as to ‘shock the conscience,” or that impose harsh or oppressive terms. [Citation omitted.]” 24 Hour Fitness, Inc. v. Superior Court, 66 Cal. App.4th 1199, 1213 (1998). A court must initially presume an agreement is valid and was negotiated at arm’s length, i.e., “fair and regular,” rather than adhesive. Code of Civil Procedure § 3545; see also, West v. Henderson, 227 Cal.App.3d 1578 (1991) (in the absence of supporting evidence court will not presume a party to an agreement held a weaker bargaining position). Even where an agreement is found adhesive, it does not “per se” render the agreement unenforceable. Graham v. Scissor-Tail, Inc., 28 Cal.3d 807, 819 (1981). The burden is to demonstrate a “concrete reason why the terms of the agreement are unduly harsh, oppressive or one-sided.” 24 Hour Fitness, Inc., supra, 66 Cal. App.4th at 1213. In determining whether an arbitration agreement is unconscionable, it is important to keep in mind the United States Supreme Court’s rejection of any unconscionability rules which are “aimed at destroying arbitration,” or involve “demanding procedures incompatible with arbitration.” Concepcion, supra, 563 U.S. at 342, 131 S.Ct. at 1748. As recognized by the California Supreme Court in Iskanian, supra, the mandate of Concepcion is clear: State law may not be applied in a way that hinders or interferes with arbitration (and thus the FAA) by refusing to enforce arbitration agreements on any ground that would not be equally applicable to all contracts. Iskanian, supra, 59 Cal.4th 348, 362-63. Here, Plaintiff has no specific bases for her general claim that the Arbitration Agreement is unconscionable. (JT Decl., § 2, Ex. 1.) As set forth in more detail below, the Agreement is neither procedurally nor substantively unconscionable, both of which must be present to render an agreement unenforceable. As such, the agreement is enforceable. a. The Arbitration Agreement Is Not Procedurally Unconscionable Procedural unconscionability focuses on the factors of surprise and oppression. Stirlen v. Supercuts, Inc., 51 Cal.App.4th 1519, 1532 (1997), quoting A & M Produce Co. v. FMC Corp., 135 Cal.App.3d 473, 486 (1982), with surprise being a function of the disappointed reasonable 1135047.1 22 Case No. 30-2018-01023444-CU-WT-CJC DEFENDANTS’ NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP expectations of the weaker party. See, Armendariz, supra, 24 Cal.4th at 113. Here, no oppression or surprise is present, as the Arbitration Agreement was fully disclosed to Plaintiff and she was provided with an opportunity to ask any questions related to the Agreement. The fact that Plaintiff was required to sign the Arbitration Agreement as a condition of her employment does not vitiate the contract on the grounds of procedural unconscionability. Lagatree, supra, 74 Cal. App.4th at 1122; Craig, supra, 84 Cal. App.4th at 420-422 (employer’s arbitration policy was not unconscionable by virtue of it having formed a condition of employment). Plaintiff was provided with the Arbitration Agreement to review before she signed it, and was provided the opportunity to ask any questions regarding the Agreement prior to signing it and she had no questions. Plaintiff entered into the Arbitration Agreement voluntarily without any oppression or surprise. b. The Arbitration Agreement Is Not Substantively Unconscionable Even if the Arbitration Agreement were found to be procedurally unconscionable, it would still be enforceable because there is no evidence of substantive unconscionability; as noted above both procedural and substantive unconscionability must be found to invalidate an arbitration agreement. To be substantively unconscionable, a contract must be so one-sided as to “shock the conscience.” Lagatree, supra, 74 Cal. App.4th at 1125, Here, the Arbitration Agreement is not one-sided, but requires both MBM LLC and Plaintiff to submit any covered dispute to arbitration. The California Supreme Court has held that a mandatory agreement to arbitrate which applies to statutory claims must meet certain minimum guidelines: (1) the availability of the same types of relief as would be available in court; (2) neutral arbitrator; (3) adequate discovery; (4) a written decision permitting limited form of judicial review; and (5) limitations on the costs of arbitration. Armendariz, supra, 24 Cal.4th at 102. In Armendariz, the employer attempted to impose an extremely one-sided and unfair arbitration agreement on the employee. The employer tried to preclude employees from obtaining any damages beyond their back pay from the date of any discharge until the date of an arbitration award that effectively precluded a full range of statutory and tort remedies, including punitive 1135047.1 23 Case No. 30-2018-01023444-CU-WT-CIC DEFENDANTS’ NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION 5 ~~ O N W n 10 11 12 13 14 15 16 17 18 19 20 21 5 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP damages, attorneys’ fees, and injunctive relief. Further, the employer attempted to require employees to pay the arbitration fee. Id. at 120-121. Unlike the agreement in Armendariz, the Arbitration Agreement here is fair and mutual. The Agreement specifies that the arbitration be conducted in accordance with the laws applicable to arbitrations in California; allows for reasonable discovery; allows for the same damages as in a court of law; calls for the use of a single neutral arbitrator; requires the issuance of a written arbitration decision; includes a voluntary waiver of a right to jury or judge trial; and requires MBM LLC to pay the fees and expenses unique to arbitration. (BE Decl., § 3, Ex. 1.) The Arbitration Agreement is substantively fair and reasonable under Armendariz. Based on the foregoing, the Arbitration Agreement is neither procedurally nor substantively unconscionable and should thus be enforced based on California and Federal law. IV. CONCLUSION For all the foregoing reasons, MBM LLC respectfully requests the Court to grant its Petition to Compel Arbitration and issue an order directing Plaintiff to submit all of her claims against all Defendants to binding arbitration pursuant to the Arbitration Agreement. DATED: December 21, 2018 MUSICK, PEELER & GARRETT LLP \ i By: EX ALF i Elaine M. Vukadinovich Juan A “Torres tneys for Defendants Merchants Building Maintenance, LLC, Oakley, Inc., and Luxottica Retail North America Inc. 1135047.1 24 Case No. 30-2018-01023444-CU-WT-CIC DEFENDANTS’ NOTICE OF PETITION AND PETITION TO COMPEL ARBITRATION 0 ~~ O N \O 10 11 12 13 14 15 16 17 18 19 20 21 3 23 24 25 26 27 28 MUSICK, PEELER & GARRETT LLP PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, | was over 18 years of age and not a party to this action. Iam employed in the County of Los Angeles, State of California. My business address is One Wilshire Building, 624 South Grand Avenue, Suite 2000, Los Angeles, CA 90017-3383. On December 21, 2018, I served true copies of the following document(s) described as NOTICE OF PETITION AND PETITION OF DEFENDANTS TO COMPEL ARBITRATION; MEMORANDUM OF POINTS AND AUTHORITIES on the interested parties in this action as follows: Ramin R. Younessi, Esq. 3435 Wilshire Blvd., Suite 2200 Los Angeles, CA 90010 (213) 480-6200 Attorney for Plaintiff BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with the practice of Musick, Peeler & Garrett LLP 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. Iam a resident or employed in the county where the mailing occurred. The envelope was placed in the mail at Los Angeles, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on December 21, 2018, at Los Ba California. — ~/1 L ‘da Ya Ad E ere L,Magdaleno ° 11374211
