declaration of judy eisner in support of reply to opposition to defend

Cal. Super. - 1st Dist.September 14, 2021

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 1 - CASE NO. CGC-20-583137 DECLARATION OF JUDY EISNER IN SUPPORT OF REPLY TO OPPOSITION TO DEFENDANTS' MOTION TO COMPEL ARBITRATION 53254139;1 AKERMAN LLP DAMIEN P. DELANEY (State Bar No. 246476) ASHLEY N. BOBO (State Bar No. 312714) 601 W. Fifth Street, Suite 300 Los Angeles, California 90071 Telephone: (213) 688-9500 Facsimile: (213) 627-6342 Email: damien.delaney@akerman.com ashley.bobo@akerman.com Attorneys for Defendants Greystar Management Services, LP, and Bradley Johnson SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO JAMES CARAMAZZA, on behalf of himself and all others similarly situated, Plaintiff, v. GREYSTAR MANAGEMENT SERVICES, LP, a Delaware Limited Partnership; SUNRISE RIVERSIDE, LLC, a Delaware limited liability company; BRADLEY JOHNSON, an individual, and DOES 1 through 100, inclusive, Defendants. Case No.: CGC-20-583137 The Honorable Ethan P. Schulman DECLARATION OF JUDY EISNER IN SUPPORT OF REPLY TO OPPOSITION TO DEFENDANTS’ MOTION TO COMPEL ARBITRATION (Filed Concurrently with Defendants’ Reply to Opposition to Motion to Compel Arbitration; Declaration of Nai-Yuan Sheu) Hearing Date: June 3, 2020 Time: 9:30 a.m. Dept.: 302 Complaint Filed: February 21, 2020 Trial Date: None ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 05/27/2020 Clerk of the Court BY: VANESSA WU Deputy Clerk 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF JUDY EISNER I, Judy Eisner, declare as follows: 1. I am the Director of Employee Relations at Greystar Management Services, LP ("Greystar"). Unless otherwise stated, the following declaration is based on my personal knowledge or upon my review of Greystar's records maintained in the ordinary course of business. If called upon to do so, I could and would testify competently as to the information contained herein. 2. I have worked in Employee Relations at Greystar since October 16, 2009. Although my job duties have been the same throughout, my job title has changed several times. Since January 2016, I have held the position of Director of Employee Relations. Throughout Plaintiff James Caramazza's employment with Greystar, I was responsible for providing human resources support to Greystar's operations in Southern California and the Desert Southwest. My territory included the Montecito at Dos Lagos apartments, located in Corona, California, where Caramazza worked in July and August of 2016, the time period during which Caramazza was presented with Greystar's Mutual Agreement to Arbitrate Claims ("Arbitration Agreement"). 3. In my role as Director of Employee Relations, I have personal knowledge of the human resources operations and document management/filing practices of Greystar. My responsibilities and duties include overseeing the implementation and distribution of Greystar's personnel-related policies and procedures, overseeing audits and exam management, and conducting certain employee investigations. I have access to information and reports maintained and generated in the ordinary course of business concerning Greystar's employees and operations. This information is kept in the ordinary course of business and is prepared at or near the time of the events or matters described therein. 4. Greystar first implemented the Arbitration Agreement company wide on July 15, 2016. The agreement was communicated throughout the company by a company-wide broadcast email. Not all property-level employees have personal Greystar email accounts, so the community manager at each property was asked to directly communicate the Arbitration Agreement to each employee at the property. To the extent that employees did not have Greystar email accounts, their manager was required to communicate the contents of the email to those employees. - 2 - CASE NO. CGC-20-583137 DECLARATION OF JUDY EISNER IN SUPPORT OF REPLY TO OPPOSITION TO MOTION TO COMPEL ARBITRATION 53254139;1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. The Company also distributed a set of commonly-asked questions and answers (the "Q&A") to employees in English and in Spanish. A true and correct copy of the English version of the Q&A is attached hereto as Exhibit B. 6. Employees were provided with a link to Greystar's Learning Management System ("LMS") to access the Agreement to read at their leisure, Each Greystar employee has unique login credentials to access LMS which they are required to keep secure. After accessing the document, employees were able to print the document if they wanted a paper copy, and to facilitate discussing it with an attorney if they chose. Employees would be asked in the Portal to select "I agree" or "I do not agree." Employees were provided until September 15, 2016 to respond to the Arbitration Agreement. 7. The Company sought a 100% response rate to the Arbitration Agreement. In connection with this effort, I would receive regular reports on the responses in my region, and I would follow up with the community managers and regional property managers in my territory to encourage them to get their team members to respond. To the extent that employees had questions regarding the Arbitration Agreement, I made myself available to those employees and I occasionally fielded questions about the agreement. I do not recall receiving any questions from Caramazza regarding the agreement. 8. Caramazza states that he "repeatedly" told me that he was unable to read, or that he reads on a third-grade level. This is not true. I have only spoken with Caramazza on one occasion, during a meeting on November 4, 2019. During that meeting, Caramazza did not inform me that he was illiterate, and he has never communicated to me that he was illiterate, orally or in writing, on any other occasion, I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 27th day of May, 2020 at Phoenix, Arizona. JUDY. EI - 3 - CASE NO. CGC-20-583137 DECLARATION OF JUDY EISNER IN SUPPORT OF REPLY TO OPPOSITION TO MOTION TO COMPEL ARBITRATION 53254139;1 EXHIBIT B MANDATORY ARBITRATION Q&A What is arbitration? Arbitration is a legal process for the resolution of lawsuits as an alternative to using the court system. Instead of a court with a judge and jury, lawsuits are brought before an “arbitrator,” who hears arguments and evidence and renders a decision based on the law and the facts. In binding arbitration, the decision of the arbitrator is final and cannot be appealed. Who is the arbitrator? The arbitrator is typically a judge or a specially-trained legal professional who is educated and informed about the law, and who can be unbiased and fair. How is the arbitrator selected? Arbitrators are selected based on mutual agreement and approval by both parties (i.e., the team member and Greystar), and are generally chosen from a local pool of trained and available arbitrators. Who pays the costs of arbitration? What about attorneys’ fees? Greystar pays the costs for the arbitrator and for the arbitration process. The company and the team member each may engage legal counsel and each is responsible for their attorney’s costs, unless the arbitrator directs otherwise in his or her decision. What are the pros and cons of arbitration, in general? Arbitration is sometimes - but not always -- less formal, less expensive, and less time-consuming than traditional litigation in court. The arbitrator makes the decision after both sides present evidence and arguments at an arbitration hearing. There is no jury in arbitration, and the arbitration proceedings are not open to the public. Both parties (the company and the team member) may engage legal counsel and each is responsible for attorneys’ fees unless the arbitrator directs otherwise in the final decision. The arbitrator’s decision is final and binding, which means that there is no appeal process. The company pays all of the arbitration costs, including the cost of the arbitrator, but both the team member and the company must agree on the selection of the arbitrator. The Greystar Arbitration Agreement includes a waiver to enter into or be a party to any class action lawsuits. This is necessary as the rise in plaintiff’s attorneys seeking significant legal fees that class action lawsuits generate, particularly wage-and-hour class action lawsuits in states such as California, pose a significant and serious financial risk to the company. Team members are encouraged to seek advice from their legal counsel for more information about arbitration, and specifically about the Greystar Arbitration Agreement. Does this mean a team member cannot bring a claim against the company? No, not at all. Obviously, we hope that our team members do not have disputes with Greystar, or that if a dispute occurs, it can be resolved between the team member and supervisor, next level manager, or with assistance from Talent Management. Under the Arbitration Agreement, team members may still make a claim against the company; however, rather than resolve the claim through the court system, it would be resolved through arbitration. The Arbitration Agreement also prohibits the team member from entering into or joining a class action lawsuit. Does the arbitration process affect any pending lawsuit or claim already in progress? The Arbitration Agreement applies to any and all future claims, as of the date the agreement is executed. It does not apply to existing claims and lawsuits that are in progress. If I bring a claim against Greystar, can the company retaliate against me? No. Greystar has a very strict policy against retaliation against any team member who may have a dispute or who may file a claim. Is agreeing to the terms of the Arbitration Agreement a requirement for all team members? Yes. Effective July 15, all new hires will be required to sign an Acknowledgement and Consent form to agree to the terms of the Arbitration Agreement in order to work for the company. This will be communicated to candidates as part of the offer of employment, just as all new hires are required to complete a satisfactory criminal background check and pre- employment drug screen. All existing team members will be required to sign the Acknowledge and Consent form to agree to the terms of the Arbitration Agreement by September 15, 2016 as a condition of continued employment. What happens if a candidate chooses not to consent to the Arbitration Agreement? What happens if an existing team member chooses not to consent? Candidates who are offered employment and choose not to consent to the Arbitration Agreement will not be permitted to start work, and their offer of employment will be rescinded. As it is a condition of continued employment, current team members who choose not to consent to the Arbitration Agreement by the September 15, 2016 deadline can no longer be employed. We are very hopeful that all of our existing team members will understand the compelling reasons why we feel the mandatory arbitration process is in the best interest of our company, our clients, and our team members, and that everyone will agree to and sign the agreement. Does the Arbitration Agreement apply to everyone for every claim? Yes. Because we believe this is the right thing to do for Greystar, the Arbitration Agreement will apply to all future and existing team members without regard to position, location, tenure, or any other factors, and all employment-related claims brought by team members against the company. Is the Agreement available in English and Spanish? Absolutely! All of the communications and documents are available in both English and Spanish for the convenience of our team members. How do I get a copy of the Arbitration Agreement and sign it? To make it as easy and simple as possible, we have put the Arbitration Agreement, including the Acknowledge and Consent Form in both English and Spanish in our LMS. You may print the documents to review at your leisure or to seek legal counsel as well. Here’s how: 1. Access the LMS and log in using your Greystar network credentials, using the special link below. (This is also posted on the Home Page of the Portal.) https://apps.greystar.com/lms/courselanding/arbitration.aspx 2. After logging in, the system will automatically display the English and Spanish version of the Arbitration Agreement. Choose either one, based on your preference, and click on the title to open the document. 3. Carefully read the entire Arbitration Agreement. This is a printable document, so you may choose to print a copy to read at your leisure. (The print option is provided on the last page of the Agreement.) If you need assistance understanding the agreement, you are welcome to seek advice from your attorney, at your own expense. 4. The last page of the Arbitration Agreement is the Acknowledgement and Consent form. Please choose only one of the two options (I agree or I disagree). 5. Click “Submit” to record your Acknowledgement and Consent form, which will be automatically uploaded to your Greystar eFile for future reference. If I have additional questions, or I want to discuss this in more detail, who should I call? Please contact your Employee Relations Director from Talent Management, or your Managing Director. If you want to change your Acknowledgement form once it has been submitted, please contact HRSupport@greystar.com 1 Case No. CGC-20-583137 PROOF OF SERVICE 52755189 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A K E R M A N L L P 60 1 W E ST F IF T H S T R E E T , S U IT E 3 00 L O S A N G E L E S, C A L IF O R N IA 9 00 71 T E L .: (2 13 ) 68 8- 95 00 - F A X : ( 21 3) 6 27 -6 34 2 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California; I am over the age of 18 years and not a party to this action. My business address is 601 West Fifth Street, Suite 300, Los Angeles, California 90071. On May 27, 2020, pursuant to California Judicial Council's Emergency Rules App. I, Emergency Rule 12, I served true and correct document(s) described as: DECLARATION OF JUDY EISNER IN SUPPORT OF REPLY TO OPPOSITION TO DEFENDANTS' MOTION TO COMPEL ARBITRATION on the persons below as follows via electronic mail: David B. Bibiyan, Esq. Diego Aviles, Esq. Sara Ehsani-Nia, Esq. Bibiyan Law Group 8484 Wilshire Boulevard Suite 500 Beverly Hills, CA 90211 Attorneys for Plaintiff James Caramazza Telephone: (310)438-5555 Email: david@tomorrowlaw.com diego@tomorrowlaw.com sara@tomorrowlaw.com rosemary@tomorrowlaw.com  BY MAIL: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing with the United States Postal Service. Under that practice, it would be deposited with the United States Postal Service that same day in the ordinary course of business. Such envelope(s) were placed for collection and mailing with postage thereon fully prepaid at Los Angeles, California, on that same day following ordinary business practices. (C.C.P. § 1013 (a) and 1013a(3))  BY FACSIMILE: I caused said document(s) to be transmitted by facsimile pursuant to Rule 2008 of the California Rules of Court. The telephone number of the sending facsimile machine was (213) 627-6342. The name(s) and facsimile machine telephone number(s) of the person(s) served are set forth in the service list. The document was transmitted by facsimile transmission, and the sending facsimile machine properly issued a transmission report confirming that the transmission was complete and without error.  BY ELECTRONIC SERVICE: I caused such document(s) to be electronically served on the party identified and no error was received when transmitted.  BY OVERNIGHT DELIVERY: I deposited such document(s) in a box or other facility regularly maintained by the overnight service carrier, or delivered such document(s) to a courier or driver authorized by the overnight service carrier to receive documents, in an envelope or package designated by the overnight service carrier with delivery fees paid or provided for, addressed to the person(s) served hereunder. (C.C.P. § 1013(d)(e))  BY PERSONAL SERVICE: I caused such envelope(s) to be delivered by hand to the office of the addressee(s). 2 Case No. CGC-20-583137 PROOF OF SERVICE 52755189 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A K E R M A N L L P 60 1 W E ST F IF T H S T R E E T , S U IT E 3 00 L O S A N G E L E S, C A L IF O R N IA 9 00 71 T E L .: (2 13 ) 68 8- 95 00 - F A X : ( 21 3) 6 27 -6 34 2  BY CM/ECF ELECTRONIC FILING: I caused the above document(s) to be transmitted to the office(s) of the addressee(s) listed above by electronic mail at the e-mail address(es) set forth above pursuant to Fed.R.Civ.P.5(d)(1). "A Notice of Electronic Filing (NEF) is generated automatically by the ECF system upon completion of an electronic filing. The NEF, when e-mailed to the e-mail address of record in the case, shall constitute the proof of service as required by Fed.R.Civ.P.5(d)(1). A copy of the NEF shall be attached to any document served in the traditional manner upon any party appearing pro se."  (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct.  (Federal) I declare that I am employed in the office of a member of the Bar of this Court at whose direction the service was made. I declare under penalty of perjury under the laws of the United States of America that the above is true and correct. Executed on May 27, 2020, at Los Angeles, California. Maxine Maritz (Type or print name) (Signature)