1262018 Reply BriefReplyCal. Super. - 5th Dist.August 24, 2018OO 0 NN YN wn hd W N N O N N N N N N N N O N mm e m e m e m e d e t e d e t CO ~N O N Wn ph W N = OO OO 0 0 N O N B R N = O DAVID F. FAUSTMAN (SBN 81862) DFaustman@FoxRothschild.com CHERRYL MARANAN (SBN 320791) CMaranan@FoxRothschild.com FOX ROTHSCHILD LLP 345 California Street, Suite 2200 San Francisco, CA 94104-2670 Telephone: 415.364.5540 Facsimile: 415.391.4436 Attorneys for Defendants, DOLLAR GENERAL CORPORATION and DG STRATEGIC VII, LLC ELECTRONICALLY FILED 11/30/2018 11:03 AM Kern County Superior Court Tamarah Harber-Pickens By Veronica Urena, Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF KERN BRINER ANVIYEH, an individual, Plaintiffs, V. DOLLAR GENERAL CORPORATION; DG STRATEGIC VII, LLC; and DOES 1 through 100, inclusive, Defendants. Case No. BCV-18-102100 Assigned for All Purposed to Hon. Thomas S. Clark, Department 17 DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO COMPEL ARBITRATION AND STAY LITIGATION FILED CONCURRENTLY WITH THE REVISED DECLARATION OF DEBBIE ROACH AND THE DECLARATION OF DAVID F. FAUSTMAN Hearing Date: December 6, 2018 Hearing Time: 8:30 a.m. Dept.: 17 Action Filed: August 27, 2018 REPLY IN SUPPORT OF MOTION TO COMPEL ARBITRATION AND STAY LITIGATION 035355\00020\79749392 OO 0 N N O N Un BR W N N N N N O N N N N O N = m e e m e m p m p m e d e m pe 0 J AA BA W N = DO VV N Y Nn R W L W N = o TABLE OF CONTENTS L INTRODUCTION .....coooerounorssasnnsis osamsvisinss sie mms sss ses sims sssmsssssses sass snr arrs II. ARGUMENT .....coiitiineeeeenieseessisstitsssessissssasssessesssessessssnessessessessissesssosesnsssassessesaesnssnassassssssssssns A. There Is a Strong Presumption In Favor of Arbitration Under Both California and FEACPAL LLAN ......venvomrsmsrmesmonrensmmnnidiiamssnsinsii des 5 Tas RE CaN NERA S CFE GRR ATES SRS ASAE ES RANEY B. The Agreement Is Valid.......c.ccovurvininiinininininiiiniiniiesreisiee es essessessnsass sss s ns 1. Dollar General Corporation and DG Strategic, LLC are Bound By the Arbitration AGIEEIMENL .......cocvevuerverrcerreerunrieesiesitisseesissessessrissssssessessnessessssssesnsssenns 2. Anviyeh Is Bound By the Arbitration Agreement..........ccceeveererervircnncrnicsesessenenes C. The Agreement is Not Unconscionable............cccceeiiicenirnnneencscnncinnnneoeeee 1. To Invalidate an Arbitration Agreement, It Must Be Found Both Procedurally and Substantively Unconscionable.............ccccceeenecernencnrnccncnninnnen 2. Na: Procedural Unconselomabilily sumowmmswmsmmmssonmmamsesessmosssmmsesansemm a. NO “AANESION™ ...oerneereireirteeirereeieneesteeren s sso seesessseestss sssasssessassnsnsssssanses b. AAA Rules Are Attached to the Agreement.........cccceeceeveeerreereecirernnecsnenns 3. No Substantive Unconscionability........ccoeeeeeeeereereeeniiesresiersecnscererseeseeseesessussnossons a. “Mutuality”- All Parties Bound........c...cccvevirmniennsincnncncnccnenescsnnennnnns b. A Modicum of “Mutuality”- Class Waiver Irrelevant ..........ccceeeeeeirenuenne 8s No “Pre-Arbitration” Notice Required ........cccovvecreervervrnecrinncrnnncicrenncnnnne d. No Attempt to Shorten Limitation ........c.ceceeeverercerierserenreesesensenneresseesenes e. AAA 1s Not Unconscionable ..........ccceverveenerrencnerecrnensecsseneesasssesssesseeseenes D. Dollar General Has Not Waived Arbitration ...........ccceveeceiceeeiieeneenesseesesssessessessessneessessesnes ML. CONCLUSION sonsansnesssmussssssonansassmnssssssts smi ysss somes s aa Ss a oes eas essa DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO COMPEL ARBITRATION AND STAY LITIGATION 1 035355\00020\79749392 OO 0 N N nn BRE WL N e N N N N N N N N N OD N mm mm p m e m e m em e m e m e m 0 NN AA Un Bh W N = O Y N O N RE W N = O TABLE OF AUTHORITIES Page(s) Cases 24 Hour Fitness, Inc. v. Superior Court, 66 Cal APPpAh 1199771 998) communes sss sams ss oo er sam es ue unease 5 American Exp. Co. v. Italian Colors Restaurant, 133 S.Ct. 2304 (2013) euriciieereeeirerreeretesererreeresiee sere sesses nessesesssesasssnsssssssssstessastsssessessessssesssssesassnans 8 Armendariz v. Foundation Health Psychare Services, Inc., | 24. Cal Ath 83: (200) .....coemmeiosi suas sossmiss sommes sesame msm sys Ass S58 FSS TE SERA AAAS IES EAL OP 3a 5 AT&T Mobility LLC v. Concepcion, S00 LES S08 CI] | beeccnssesemmumumnsnsesmsmsnensesosss men e SN H Sr E 8 Baltazar v. Forever 21, Inc., 62 Cal. 4th 1237 (2016) .eeveeeeerereirerrrieeseereestentess ete stest ssessestssassssessesnesesn sat ssssstsssesesrsssseressnssnsrss se sonss 8 Engalla v. Permanente Med. Group Inc., 15 Cal AROS] {1TDT) .... cmeeei snismnn.ssiime oc usis ve. swsesssss s5 sues 4355 EE SEES EVA TOSSA R AREA SY BESTA 8 Epic Sys. Corp. v. Lewis, 138 S.Ct. 1612 (2018)..cuieeerieieiireeiriencereeerersenseeseesnessesnessesessessessnesessrsssesiestestssssibessessessssssssesnsssessenns 7 Iskanian v. CLS Trans. LA, LLC, 59 Calidth 348 (2014) ...oveeeireeiiieeieirreeteee reese stste ssere eres esas eas sne see sees es se sanes beste bbe sesh es bes b ebb abs she b ats ens 6 Mission Viejo Emergency Medical Associates v. Beta Healthcare Group, 197 Cal. App Ath 1146 (OTT) comsssummesssmmsmssmssmmnsenssessssssssmmsssssms ms sieges ys ams mia sasos sss 5,8 Pinnacle Museum Tower Assn. v. Pinnacle Marketing Development (US), 55 Calidth 223 (2012) ccuviieeirirerereenereeeessesiesieiee s sso ssesse assesses esse sae seas e ac ne sae sas re es esas bea seb sbe bs ne ben 4 Ruiz v. Moss Bros. Auto Group, Inc., 232 Cal APP Ath B36 [2014] ........ocoeceraneneniitinnionsmnsasnsonesnsinsd Shae 5650 45inknwidh is 54 555% 55535545. 5955755853 505035 3,5 Sanchez v. Valencia Holding Co., (2015) 61 Cal. 4th 899 .......cieeeirirrireesenirnerereseestraesesessesaesesseesassarssesasseesesssnmsassssssssessssessessessesssssssennes 6 Slaught v. Bencomo Roofing Co., 25 Cal ATID AME TAY (1DDAY wom. 00.50 sus 0. sammsssasaness sess ssasassnsss 5 5055855 0548505 50588 S03 SE SEAR REARS SSE S SES 8 Sonic Calabasis, Inc. v. Moreno, 57 Caldth 1109 (2013) .eceeieieirerierieerienteeererrerentsesstscessereeeseesersneessesesarsnessnssssessessesaesassasssossstsssanss 6 Stirlen v. Supercuts, 51 Cal. Appi 115 15 EDT) snus mnsomsmssnoesonssassssssss sm ss m 5a e sa ma: 5 DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO COMPEL ARBITRATION AND STAY LITIGATION ii 035355\00020\79749392 OO 0 3 NN Un RA W N N O N N O N N O N N N N r m e m e m e m me pe e m ee p h pe WW NN AA nh BA W N = O WV R N O N N e W ND = OO Statutes Cal. Civ. Code, § 1633.9, subd. (a) eH hPa 08000 Ee errr e etter et ro uIereoreete tatters eteesesreatntiatectetteieetserstsettateertsEettOtIeRITTRY Federal Arbitration Act, 9 USC §1 et BEA. ......sisiissmemmroriissiiossiiosasismssosiissssssinsassussssssssssississsmasssssssuasassaasys 8 DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO COMPEL ARBITRATION AND STAY LITIGATION 035355\00020\79749392 eee m Oo oo ~ [= ) wn ES w No - N O N N N N R N R N N N e m e m e m et e m p m e t be ee 0 N N A A Un BRA W N = O D O N N Y N R W N N = O LL INTRODUCTION Plaintiff Anviyeh is trying to avoid the “Dollar General Employee Arbitration Agreement” to which he agreed at hiring. He conveniently claims he never saw the agreement, but his name and social security number are found on all of his initial hiring documents from 2015, including the Arbitration Agreement. Anviyeh would not have been hired if he had not personally completed and submitted these documents.! The Agreement by its terms applies to “Dollar General, its parent and subsidiarie(s),” which includes DG Strategic VII, LLC. Thus, the defendants in this action are parties to the Arbitration Agreement, and are entitled to enforce it. As a fallback argument, Plaintiff attempts to argue that the Arbitration Agreement is “unconscionable.” First, he asserts that the Agreement is “procedurally unconscionable” because (1) it is a “contract of adhesion,” and (2) because the AAA rules are “not attached.” Neither claim is true. The agreement is not a take-it-or-leave it requirement, but rather contains a section, printed in bold, entitled “Opt Out.” It says, “You have the opportunity to opt out of this Agreement... within 30 days... Dollar General will not retaliate against you if you choose to opt out.” Also, the AAA Rules are attached in the form of a link to the online Agreement that says, “Click here to view and/or print AAA Rules.” Finally, Plaintiff attempts to claim that the Agreement is “substantively unconscionable” because: (a) The Agreement lacks mutuality Pl.’s Opp’n. 9:26. This is based solely on the erroneous proposition that Dollar General Corporation (“parent”) and DG Strategic VII, LLC (“subsidiary”) are not parties to the agreement. (b) Class Actions Waivers Pl.’s Opp’n. 10:19-20. The supposed lack of mutuality is also based on the fact the Agreement includes a “Class and Collection Action Waiver” that is more likely to apply to employees than to the company. This, of course, ignores the fact that all “Covered Claims” of either the employee or the employers must be brought in arbitration. This constitutes more that the “modicum of mutuality” required under the laws. Both the United States Supreme Court and the California Supreme Court have I See Declaration Declaration of Debbie Roach, revised and attached. DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO COMPEL ARBITRATION AND STAY LITIGATION 1 035355\00020\79749392 OO 00 N N S N L n B W ND N O N O N N O N N O N O N NN mm mm em em e m e e e d e s 0 0 ~ ~ O& O hh BA W N = O V W N N N R E WLW DN yN oO approved class action waivers in the employment context. See Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018); Iskanian v. CLS Trans. LA, LLC, 59 Cal.4th 348 (2014). There is no authority for the proposition that a class action waiver is unconscionable. (c) “Pre-Arbitration Notice” P1.’s Opp’n. 11:2-3. There is no “pre-arbitration” notice in the agreement. The “Notice” required is the actual filing of a Demand for Arbitration. “When you first become aware that you have a Covered Claim, you must file a written notice of your intent to arbitration (“Demand”) with the American Arbitration Association.” Such provision also applies to the company, as well as the employee. (d) Attempt to Shorten Statute of Limitation. PL.’s Opp’n. 11:21-12:11. There is no such “attempt.” The agreement clearly states that claims are subject to “the period of the statute of limitations applicable to your Covered Claim.” There is no statute of limitations issues in this case. (e) The Use of AAA. P1.’s Opp’n. 12:12-13:4. The American Arbitration Association has been a respected third party administrator of employment disputes for many decades. Plaintiff’s scurrilous, unfounded allegations aside, no court has ever held that the contractual choice of AAA is “unconscionable.” Again, the employee is able to opt out of the Agreement. The Arbitration Agreement at issue is thus valid and enforceable against all parties. It is neither procedurally nor substantively unconscionable. Dollar General’s motion to compel arbitration should be granted. IL. ARGUMENT A. There Is a Strong Presumption In Favor of Arbitration Under Both California and Federal Law “California has a strong public policy in favor of arbitration as an expeditious and cost-effective way of resolving disputes.” Mission Viejo Emergency Medical Associates v. Beta Healthcare Group, 197 Cal. App.4th 1146, 1153 (2011); Slaught v. Bencomo Roofing Co., 25 Cal.App.4th 744, 748 (1994). Consistent with this policy, there is a presumption in favor of arbitrability. Engalla v. Permanente Med. Group Inc., 15 Cal.4th 951, 971 (1997). In AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, the DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO COMPEL ARBITRATION AND STAY LITIGATION 2 035355\00020\79749392 OC 0 NN YY Wn Be W N N O N RN N N N O N N O N = mm em ee em em ee d ee e e 0 NN AN n n bh W N = O V R N B R A W N = O U.S. Supreme Court reaffirmed that an identical policy exists under federal law. Specifically, the Federal Arbitration Act, 9 U.S.C §1 et seq. (“FAA”) was “enacted in 1925 in response to widespread judicial hostility to arbitration agreements.” /d. at 339. Like state law, the FAA promotes a “liberal policy favoring arbitration.” Id. In 2013, in the U.S. Supreme Court reinforced that the FAA “reflects the overarching principle that arbitration is a matter of contract ... [and that] courts must rigorously enforce arbitration agreements according to their terms...” American Exp. Co. v. Italian Colors Restaurant, 133 S.Ct. 2304, 2309 (2013). The Arbitration Agreement says is governed by the FAA. Consistent with that principle, Mr. Anviyeh should be ordered to arbitrate his claims pursuant to the valid Agreement. B. The Agreement Is Valid 1. Dollar General Corporation and DG Strategic, LLC are Bound By the Arbitration Agreement First, Plaintiff erroneously claims that Defendants are not proper parties to the Agreement. The Declaration of Debbie Roach, revised and attached, states that Dollar General is a Tennessee corporation and is the parent company of subsidiary entities, including DG Strategic VII, LLC and Dolgen California, LLC. Roach Decl. { 3. “Dollar General” is used to refer to the parent company and its subsidiaries throughout the hiring documents. /d. Further, Plaintiff misquotes the Agreement, claiming that it only covers those claims “arising out of Plaintiff’s employment... or termination of employment with Dolgen California, LLC.” The actual quote from the Agreement clearly states that: “...any legal disputes that you may have against Dollar General, its parent company and subsidiary corporations...arising out of your employment with Dollar General or termination of employment with Dollar General... will be addressed in the manner described in this Agreement.” See Exhibit A to Roach Decl. (emphasis added). Moreover, nowhere in the arbitration agreement does it state that “Dollar General” is defined as “solely Dolgen California, LLC” as Plaintiff claims. Plaintiff, however, conveniently omits the relevant language in the arbitration agreement clearly stating that the agreement applies to claims against Dollar General, including its parent and subsidiaries. The Agreement also states that “...any Covered Claims that Dollar General may have against you” will likewise be addressed “in the manner described in this DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO COMPEL ARBITRATION AND STAY LITIGATION 3 035355\00020\79749392 OO 0 NN AN nn RAR W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Agreement.” Defendants are thus mutually bound by the Agreement and are entitled to enforce it. 2. Anviyeh [s Bound By the Arbitration Agreement Plaintiff does not specifically deny that he electronically signed the hiring documents, including the Agreement. He merely claims that “he has never seen the agreement before.” In fact, the revised Roach declaration establishes that Plaintiffs electronic signature is an act attributable to him, and thereby also establishes the validity of the Agreement. The burden of authenticating an electronic signature is not great. Ruiz v. Moss Bros. Auto Group, Inc., 232 Cal. App.4th 836, 844 (2014)(citing Cal. Civ. Code, § 1633.9, subd. (a).) An electronic signature is attributable to a person if it is the act of the person, and this may be shown in any manner, including circumstantial evidence. /d. at 845 (emphasis added). The revised Roach declaration clearly presents sufficient evidence to support a finding that the electronic signature on the Agreement was an act of Plaintiff, and is thus attributable to him. All employment candidates are required to use their unique login ID and password (consisting of their social security number and birthdate) when logging into the online Express Hiring system in order to access and sign electronic forms and agreements. Roach Decl. § 8. No other candidate or employee has access to Plaintiff's unique login ID and password. Id. While Plaintiff was logged in, he selected the option stating that he agreed to the terms of the Agreement and affixed his electronic signature on August 20, 2015. Id. Further, Plaintiff also electronically signed the “E-Signature” form, agreeing that “...your initials, in conjunction with your personal password that you used to gain access to the system, will constitute your electronic signature (‘e-signature’) and will identify that record or transaction as yours.” Id. at 19. Ms. Roach thus states that based on the foregoing, the electronic signature on the hiring documents, including the Agreement, could only have been affixed by Mr. Anviyeh using his unique login ID. Id. at § 8. Each hiring document Plaintiff electronically signed also contains his name and the last four digits of his social security number. See Roach Decl., Ex. B. He would not have been hired had he not personally completed and submitted the initial documents, including the Agreement. Roach Decl. 912. Furthermore, Plaintiff does not deny that he electronically signed the arbitration agreement. Plaintiff merely claims the agreement is unenforceable because he “never saw” it. This is simply not DEFENDANTS® REPLY IN SUPPORT OF MOTION TO COMPEL ARBITRATION AND STAY LITIGATION 4 035355\00020\79749392 OO 0 N N NN nn Rk W N N O N N N N N O N N N mm e m e m e m e m e m e m t e e d pe s e d 00 NN S N Ln B R A W N = D Y N N N R E L Y + O enough to invalidate an agreement. “A party cannot use its own lack of diligence to avoid an arbitration agreement.” 24 Hour Fitness, Inc., 66 Cal. App.4th 1199, 1215 (1998). The California Supreme Court has stated, “An arbitration clause within a contract may be binding on a party even if the party never actually reads the clause.” Pinnacle Museum Tower Assn. v. Pinnacle Marketing Development (US), 55 Cal.4th 223, 236 (2012)(emphasis added). Again, Plaintiff accessed the Agreement online through Dollar General’s “Express Hiring” System using his unique login ID and password consisting of his own social security number and date of birth that can only have been provided by him. Roach Decl. § 7. Plaintiff selected the option stating that he agreed to the terms of the Agreement and thereafter affixed his electronic signature on August 20, 2015. /d. at § 8. His failure to read or remember the policy does not render it unenforceable. Plaintiff is bound by the Agreement. C. The Agreement is Not Unconscionable 1. To Invalidate an Arbitration Agreement, It Must Be Found Both Procedurally and Substantively Unconscionable Once it is shown that a valid agreement to arbitrate exists and applies, it is then Plaintiff's burden to prove that the agreement is not enforceable. Mission Viejo, 197 Cal.App.4th at 1154. An arbitration agreement can be invalidated only if there is a showing of both procedural and substantive unconscionability. Armendariz v. Foundation Health Psychare Services, Inc., 24 Cal.4th 83, 114 (2000)(emphasis added). Absent either procedural or substantive unconscionability, the Court must enforce the agreement to arbitrate. /d. Here, Plaintiff fails to show that the agreement was either procedurally or substantively unconscionable. 2, No Procedural Unconscionability Under California law, a contract of adhesion is not automatically unconscionable. See Armendariz, 24 Cal.4th at 114. The court must consider the factors of “oppression” and “surprise.” 1d. “Oppression arises from an inequality of bargaining power that results in no real negotiation and an absence of meaningful choice,” while “[s]urprise involves the extent to which the supposedly agreed- upon terms are hidden in a prolix printed form drafted by the party seeking to enforce the disputed terms.” Stirlen v. Supercuts, 51 Cal.App. 4th 1519, 1532 (2007). Here, there was no “oppression,” or DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO COMPEL ARBITRATION AND STAY LITIGATION 5 035355\00020\79749392 CO 0 N N N nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “surprise.” a. No “Adhesion” Plaintiff asserts that the Agreement was presented to him on a “take-it-or-leave-it basis.” This is plainly not true. In fact, the Agreement includes a section printed in bold entitled “Opt-Out” stating that Plaintiff has the opportunity to opt out within 30 days. Furthermore, at the end of the Agreement above the signature line, Plaintiff marked the checkbox indicating that he accepted arbitration under the terms of the Agreement. The agreement is thus not procedurally unconscionable. b. AAA Rules Are Attached to the Agreement . Plaintiff erroneously claims that the AAA rules were not attached. In fact, there is a link entitled “Click here to view and/or print AAA Rules” above the signature line of the Agreement. Further, relevant excerpts to the AAA rules were attached to the Declaration of Cherryl Maranan as Exhibit A. Finally, the AAA Rules are also readily available via a quick and cursory internet search referenced in the Agreement. 3. No Substantive Unconscionability Even if the Court were to find procedural unconscionability, the Court must also find substantive unconscionability in order to invalidate an arbitration agreement. “Substantive” unconscionability is found where contract terms are “so one-sided as to shock the conscience,” Sonic Calabasis, Inc. v. Moreno, 57 Cal.4th 1109, 1145 (2013), and not “a simple old-fashioned bad bargain.” Sanchez v. Valencia Holding Co., 61 Cal.4th 899, 911 (2015). Plaintiff also fails to meet this burden. a. “Mutuality”- All Parties Bound First, Plaintiff asserts that the Agreement lacks mutuality since Defendants “can refuse its enforcement” “because the arbitration agreement does not apply to them.” This is plainly not true. There are several references throughout the Agreement to “You and Dollar General” indicating that both parties are to be bound by its terms. The Agreement clearly states in the second paragraph, printed in bold, that it “...constitutes a mutually binding agreement between you and Dollar General...” See Roach Decl., Ex. A. “Dollar General” refers to the parent company and subsidiaries. Further, the Agreement also states that: “By agreeing to participate in binding arbitration, you and Dollar General acknowledge and agree.” Thus, both Plaintiff and Defendants are clearly bound to the Agreement. DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO COMPEL ARBITRATION AND STAY LITIGATION 6 035355\00020\79749392 © 00 NN O N wn A W N = N O N N N N N O N O N O N O N mm mm mm md me pm pe t p m e t 00 ~~ A nn A W N = O V N S N R W = O b. A Modicum of “Mutuality”- Class Waiver Irrelevant Second, Plaintiff asserts that the class action waiver of the Agreement only includes claims that a plaintiff would bring, and thus lacks mutuality and is substantively unconscionable. This ignores the language that says any claim Dollar General has against the employee will be submitted to arbitration. In fact, both the United States Supreme Court in Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018) and the California Supreme Court in Iskanian v. CLS Trans. LA, LLC, 59 Cal.4th 348 (2014) unambiguously confirmed that class action waivers in employment arbitration agreements are enforceable as a matter of law. c. No “Pre-Arbitration” Notice Required Third, Plaintiff asserts that the Agreement contains a Pre-Arbitration Notice requirement. There is no such language in the Agreement. The “Notice” is in fact the filing of the Demand to Arbitrate. The exact language in the Agreement is as follows: “When you first become aware that you have a Covered Claim, you must file a written notice of your intent to arbitrate (“Demand”) with the American Arbitration Association (“AAA”), a third party dispute resolution organization that administers arbitrations under this Agreement.” See Roach Decl. Ex. A. There is thus no such pre-arbitration notice requirement in the Agreement. d. No Attempt to Shorten Limitation Fourth, Plaintiff asserts that the Agreement is substantively unconscionable and unenforceable because it “shortens the statute of limitations.” Pl.’s Opp’n. 11:21-12:11. There is no such restriction. The Agreement plainly states that a Demand for arbitration must be filed “within the period of the statute of limitations applicable to your Covered Claim.” In this case, Plaintiff has complied with all procedural requirements, and there is no statute of limitations issue. See Faustman Decl. { 3. c. AAA is Not Unconscionable Finally, Plaintiff claims that the use of the AAA to administer arbitrations under the Agreement is somehow unconscionable. No court, however, has ever held that the choice of AAA is 2 There is no authority that class action waivers amount to substantive unconscionability. Abramson v. Juniper Networks, 115 Cal. App. 4th 638 (2004) cited by Plaintiff (Pl.’s Opp’n. 11:1) has nothing to do with class waivers. DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO COMPEL ARBITRATION AND STAY LITIGATION 7 035355\00020\79749392 NN O Y oan BA 0 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “unconscionable.” The AAA has served as a respected third party administrator of employment disputes for many decades. See Baltazar v. Forever 21, Inc., 62 Cal. 4th 1237 (2016) (AAA Rules legitimate even if not attached). Further, the Agreement states that “Notwithstanding the above procedures, you and Dollar General may mutually agree to use another arbitration service of the parties’ choosing.” Moreover, if an employee doesn’t like the AAA, he or she can simply opt out. The Court should thus find that the Agreement is not substantively unconscionable and enforce the mutual agreement to arbitrate. D. Dollar General Has Not Waived Arbitration Plaintiff’s assertion that Defendants “waived” their right to enforce the valid arbitration agreement between the parties is inaccurate and misleading. The Stipulation was about the dismissal of the individual defendants, Paul Porter and Alex Barboza and an agreement not to remove the action to federal court. The state court thus would retain jurisdiction, not the federal court. Nowhere does it state that Defendants waive their right to enforce the valid arbitration agreement. Furthermore, Plaintiff has been on notice of Defendants affirmative defense seeking enforcement of the arbitration agreement, as clearly stated in its Answer. See Faustman Decl. § 2. III. CONCLUSION There is really no question that Briner Anviyeh received and signed Dollar General's initial employment documents in 2015, including the Arbitration Agreement that is the subject of this motion. Otherwise, he would not have been hired. The Agreement is binding on all the Dollar General entities. Plaintiff's argument that the Agreement “unconscionable” is spurious. The motion should be granted. Respectfully submitted, 1 - DAWD F. FAUSTMAN CHERRYL MARANAN Attorneys for Defendants, DOLLAR GENERAL CORPORATION and DG STRATEGIC VII, LLC Dated: November 29, 2018 FOX DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO COMPEL ARBITRATION AND STAY LITIGATION 8 035355\000201\79749392 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 21 28 PROOF OF SERVICE [ am employed in the County of San Francisco, State of California. Iam over the age of eighteen years and not a party to this action. My business address is: Fox Rothschild LLP, 345 California Street, Suite 2200, San Francisco, CA 94104-2670. On November 30, 2018, I served the following document(s): DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO COMPEL ARBITRATION AND STAY LITIGATION REVISED DECLARATION OF DEBBIE ROACH AND THE DECLARATION OF DAVID F. FAUSTMAN on the interested party(ies) in this action by placing true copies thereof enclosed in sealed envelope(s) addressed as follows: Alex Hartounian, Esq. Hartounian Law Firm, P.C. 418 N. Fair Oaks Avenue, Suite 202 Pasadena, CA 91103-3661 [] [BY FIRST CLASS MAIL]: I placed the envelope for collection and mailing following our ordinary business practices. I am readily familiar with this business’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage fully prepaid. [Vv] [BY MESSENGER]: I served the documents by placing them in an envelope or package addressed to the persons at the address listed above and providing them to a professional messenger service for service. [[] [BY OVERNIGHT DELIVERY]: I caused said document(s) to be deposited at an overnight delivery facility, addressed to the above-listed person(s) for delivery the next business day. [BY EMAIL]: I electronically served the above document(s) from (Type Email Here) to the email address of the addressee(s) listed above. [¥] [STATE] I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. [J Bo Executed this 30" day of November, 2018, at San CNT i s g A be --=/ Georgia J. Llewellyn 035355\00020\79749392
