defendants reply to opposition to motion to compel arbitrationCal. Super. - 1st Dist.September 14, 2021 1 CASE NO. CGC-20-583137 DEFENDANTS' REPLY TO OPPOSITION TO MOTION TO COMPEL ARBITRATION 53255089;2 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 . F IF T H S T 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 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 DEFENDANTS’ REPLY TO OPPOSITION TO MOTION TO COMPEL ARBITRATION (Filed Concurrently with Declaration of Nai-Yuan Sheu and Declaration of Judy Eisner) 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 1 CASE NO. CGC-20-583137 DEFENDANTS' REPLY TO OPPOSITION TO MOTION TO COMPEL ARBITRATION 53255089;2 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 . F IF T H S T 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 REPLY MEMORANDUM I. INTRODUCTION A party to a written contract is presumed to assent to all of the terms in the instrument the party signs. To avoid this bedrock legal principle, Caramazza has concocted a story that is superficially appealing, but withers under even passing scrutiny. He states, under oath, that he does not remember receiving the arbitration agreement, and even if he did, he could not have reviewed it without assistance because he is functionally illiterate, and he does not recall seeking assistance to review it. His failure to read the agreement-or at least to remember reading it-does not excuse him from complying with it. What Caramazza has not refuted is that only he could have used his unique employee credentials to access Greystar’s Learning Management System (“LMS”) to accept Greystar’s mandatory arbitration agreement on August 5, 2016, about three weeks after the document was made available to him to review. He has not admitted to disclosing his credentials to anyone else nor has he explained how someone else could have accepted the agreement without his consent. There is no evidence before the Court to support any conclusion other than Caramazza accessed LMS personally to accept the arbitration agreement. With that in mind, Caramazza’s defenses to the arbitration agreement collapse: Caramazza’s claims against defendant Sunrise Riverside, LLC (“Sunrise”) do not preclude enforcement of the agreement because his claims against Sunrise are intertwined with and inherently inseparable from his claims against Greystar Caramazza has failed to show the existence of any misrepresentation that would support a finding of fraud in the execution of the arbitration agreement Caramazza’s arbitration is neither procedurally nor substantively unconscionable because adhesive mandatory arbitration agreements are routinely enforced in California, and there is no evidence of surprise or sharp practices supporting a finding of unconscionability. In short, Caramazza has no defense to the arbitration agreement. Even if he did not know what he was signing, Caramazza had ample opportunity to discover the terms of the arbitration agreement and Greystar did nothing to deceive him. The arbitration agreement should be enforced according to its terms. 2 CASE NO. CGC-20-583137 DEFENDANTS' REPLY TO OPPOSITION TO MOTION TO COMPEL ARBITRATION 53255089;2 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 . F IF T H S T 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 II. THE PARTIES FORMED A VALID, BINDING AGREEMENT TO ARBITRATE. A. Caramazza Accepted The Arbitration Agreement. Caramazza denies formation of the arbitration agreement solely on the fact that he does not remember signing it. Caramazza Dec., ¶ 24. But his alleged lack of memory is not substantial evidence and the argument is irrelevant in any event. A plaintiff cannot claim ignorance or faulty memory in order to avoid a binding contract that he signed. See Brookwood v. Bank of Am., 45 Cal. App. 4th 1667, 1674 (1996) (“Reasonable diligence requires the reading of a contract before signing it. A party cannot use his own lack of diligence to avoid an arbitration agreement.”). It is well-settled that an arbitration agreement may be binding on a party even if the party never reads it or is even unaware of it. Pinnacle Museum Towers Ass’n v. Pinnacle Market Dev. (US), LLC, 55 Cal. 4th 223, 236 (2012); 24 Hour Fitness, Inc. v. Super. Ct., 66 Cal. App. 4th 1199, 1215 (1998); Brookwood, 45 Cal. App. 4th at 1674 (an employee is “bound by the provisions of [an] [arbitration] agreement regardless of whether [he] read it or [was] aware of the arbitration clause when [he] signed the document”). To hold otherwise would allow a party who failed to read an agreement to either declare the agreement “unenforceable at [his] whim” or “choose alternatively to seek arbitration . . . should he prefer, to perform and receive the benefits of the contract.” San Francisco Newspaper Printing Co. v. Super. Ct., 170 Cal. App. 3d 438, 443 (1980). Greystar attached a copy of Caramazza’s arbitration brief to its initial brief, but Caramazza disputes the authenticity of this document. Additional factual context and evidence amply demonstrate that the arbitration agreement is authentic, and that Caramazza did, in fact, agree to arbitration. See Espejo v. Southern California Permanente Med. Grp., 246 Cal. App. 4th 1047, 1060 (2016) (explaining that defendant meets its initial burden by submitting a copy of the arbitration agreement with the motion to compel arbitration, and then must prove the authenticity of the agreement only after challenged). Caramazza was already employed by Greystar when it first implemented its mandatory arbitration program on July 15, 2016. Eisner Reply Dec., ¶ 2. Thus, he received the arbitration agreement separately, as a freestanding document, through Greystar’s Learning Management System (“LMS”). Id. at ¶ 2-6; see also Sheu Dec. ¶ 11. Caramazza would have been notified that he needed 3 CASE NO. CGC-20-583137 DEFENDANTS' REPLY TO OPPOSITION TO MOTION TO COMPEL ARBITRATION 53255089;2 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 . F IF T H S T 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 to access LMS to execute the arbitration agreement by his community manager Rose Lee. Lee received email communications regarding the roll-out of the arbitration agreement, and each email stated prominently at the top “IF YOU ARE A COMMUNITY MANAGER, PLEASE PRINT AND DISTRIBUTE A COPY OF THIS COMMUNICATION TO EVERY TEAM MEMBER AT YOUR COMMUNITY!” Sheu Dec. ¶ 12; Ex. E. (emphasis in original). There were (at least) three follow-up emails, and if any employee at the property had not executed the arbitration agreement by the deadline, Lee would have received a call from an Employee Relations representative. Id. at ¶¶ 13-15; Exs. F, G and H. There was a significant roll-out to all employees, and community managers were expected to assist in obtaining arbitration agreements from all employees on their teams. Eisner Reply Dec. ¶¶ 4, 7. Consistent with this, Caramazza executed the arbitration agreement on August 5, 2016. Eisner Dec., ¶¶ 4-5, Ex. A; see also Sheu Dec. ¶ 20-21, Ex. L. Greystar’s records indicate that Caramazza accessed LMS on that date, using his personal credentials. Id. The records reflect Caramazza’s unique employee ID number and the IP address of the device that he used to access the document. Id. Greystar provided the arbitration agreement to employees in English and in Spanish, and Greystar’s records indicated that he accessed the arbitration agreement in English. Sheu Dec. ¶¶ 17, 21-22; Exs. I and L. He recorded his response as “Agree.” Sheu Dec. ¶¶ 20-21, Ex. L; Eisner Dec., ¶¶ 4-5, Ex. A. In total, this evidence amply establishes that Caramazza was the person who entered his response on the arbitration agreement indicating agreement. B. Caramazza Cannot Rely On His Alleged Failure to Read The Arbitration Agreement as a Defense to Enforcement. Having accepted the agreement, Caramazza cannot now claim that the agreement should be void because he was allegedly unaware of its terms. It is well-settled that parties to an arms-length transaction have no duty to explain an agreement to the other party. Caramazza had ample access to resources to understand the agreement. Failing to rely on those resources does not relieve him of his obligations under the agreement. Unfortunately for Caramazza, he assumes the risk of his failure to read the arbitration agreement. “A cardinal rule of contract law is that a party’s failure to read a contract, or to carefully 4 CASE NO. CGC-20-583137 DEFENDANTS' REPLY TO OPPOSITION TO MOTION TO COMPEL ARBITRATION 53255089;2 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 . F IF T H S T 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 read a contract, before signing it is no defense to the contract’s enforcement.” Desert Outdoor Advert. v. Superior Ct., 196 Cal. App. 4th 866, 872-73 (2011). Greystar did not stand in the way of Caramazza accessing whatever resources he needed in order to understand the agreement. Indeed, the agreement specifically encourages employees to seek the advice of counsel in entering the arbitration agreement. Moreover, at the time the arbitration agreement was initially rolled out, Greystar published a detailed “Mandatory Arbitration Q&A” document which explains the arbitration agreement. Eisner Reply Dec., Ex. B. If Caramazza had any question about what the agreement meant, he had multiple sources of information to have it answered. Caramazza relies heavily on his alleged functional illiteracy.1 But Greystar had no duty to read or explain the agreement to him, “particularly where, as here, the language of the contract expressly and plainly provides for the arbitration of disputes arising out of the contractual relationship.” Brookwood, 45 Cal. App. 4th at 1674 (1996) (quoting Rowland v. PaineWebber Inc., 4 Cal. App. 4th 279, 286 (1992)). This is particularly true given that Caramazza had two months to review the agreement, and the agreement specifically encouraged him to consult counsel. Caramazza has identified no California authority voiding an arbitration agreement under similar circumstances. The only case he cites-a federal appellate case applying Texas law-does not support his argument either. In National Federation for the Blind v. The Container Store, Inc., 904 F.3d 70, 75 (1st Cir. 2018), the court interpreted an arbitration agreement contained in the terms and conditions agreement of a customer loyalty program. Customers were asked to accept the terms and conditions on a touch screen but could not review the document without requesting it from an employee. Id. Thus, the plaintiffs claimed that they were never provided the document containing the arbitration agreement. Container Store bears no resemblance to this case. The arbitration agreement here is not deeply buried within another contract; it is a freestanding agreement, boldly entitled “Mutual Agreement to 1 Caramazza’s declaration regarding his illiteracy is internally inconsistent, and is not supported by any specific professional assessment. He states that it is “very difficult for me to read and understand written documents without assistance” (Caramazza Dec. ¶4), that he is “unable to read and understand written documents on my own” (Id. ¶6), that he “never learned to read” (Id. ¶11) and that he “had a third-grade reading level.” (Id. ¶ 11). There is a vast difference between having “never learned to read” and reading on a third-grade level. Thus, should the court consider this evidence relevant, there is a significant question of fact as to how profound Caramazza’s reading difficulties actually are. 5 CASE NO. CGC-20-583137 DEFENDANTS' REPLY TO OPPOSITION TO MOTION TO COMPEL ARBITRATION 53255089;2 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 . F IF T H S T 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 Arbitrate Claims” at that. No reasonable person would be confused as to the terms of this agreement. In fact, Container Store acknowledged that distinction. In distinguishing the defendant’s cases, the court observed that when “the documents signed described contractual relationships and implicated legal rights . . . the parties were treated as knowing the terms despite being illiterate or blind because of the very nature of the agreements they entered into.” Id. at 84. The “zero hint” language in the Container Store decision-upon which Caramazza stakes his position-applies to collateral terms in lengthy agreements such as the terms and conditions of a customer loyalty program, not a freestanding agreement with a plainly descriptive title. Id. Second, if Caramazza truly had “zero hint” that he was asked to enter an arbitration agreement, that is not Greystar’s fault. By its terms, the arbitration agreement includes a right to consult counsel. Eisner Dec., Ex. A. (Agreement, p. 2) (“You may wish to review this Agreement with legal counsel, at your own expense. The Company encourages you to do so.” (emphasis in original)). Thus, Caramazza did not need to rely solely on Greystar employees to answer his questions. Further, Caramazza could also have directed any questions he had to Employee Relations employees who could also have answered them. But Greystar could not have answered them because he did not ask. Reduced to its essence, Caramazza’s argument seeks to impose fiduciary duties on employers to explain the terms of arbitration agreements to their employees. That is not-and never has been-the law. California courts have routinely enforced arbitration and employment agreements under similar circumstances. See Rivera v. Uniqlo California, LLC, 2017 WL 6539016, at *5, 6 (C.D. Cal. Sept. 8, 2017) (agreement enforced where employee “‘did not read’ the Arbitration Agreement and … remembers seeing the word ‘arbitration,’ but did not understand what that meant” because “Defendants were not obligated to explain the terms of the Arbitration Agreement”); see Hutchins v. TNT/Reddaway Truck Line, Inc., 939 F. Supp. 721, 724 (N.D. Cal. 1996) (upholding employment agreement despite employee’s claims that “he did not completely understand the meaning of the language in the document” because even in “cases where the person who signs the contract is illiterate-in such cases, the individual has a responsibility to have the contract read to him”). 6 CASE NO. CGC-20-583137 DEFENDANTS' REPLY TO OPPOSITION TO MOTION TO COMPEL ARBITRATION 53255089;2 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 . F IF T H S T 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 C. Caramazza’s Claims Against Sunrise Riverside, LLC Require Enforcement Even Though Sunrise Riverside is Not a Party to the Arbitration Agreement. Caramazza argues further his case cannot be compelled to arbitration because defendant Sunrise because is not a party to the arbitration agreement. He makes this argument even though he asserts identical claims against each defendant and does not distinguish between them in any way. Caramazza alleges that the defendants “collectively acted, in all respects pertinent to this action, as joint employers, and that each defendant acted in all respects pertinent to this action as the agent of the other defendant(s), and carried out a joint scheme, business plan, or policy in all respects pertinent hereto.” Complaint, ¶ 17. Further, Caramazza lumps the defendants together throughout, accusing each of all the same alleged wrongful acts as the other two. See, e.g., Complaint, ¶¶ 2-8; 22-26; 28 (defining the putative class as employees of “Defendants”); 33 (describing allegedly common questions of law and fact in terms of violations committed by “Defendants”). Non-signatories to an arbitration agreement may enforce it when the claims alleged against them are “intimately founded in and intertwined” with and “inherently inseparable from” the claims alleged against the signatory. See Garcia v. PEXCO, LLC, 11 Cal. App. 5th 782 (2017) (citing Boucher v. Alliance Title Co., Inc., 127 Cal. App. 4th 262, 267 (2005) and Metalclad Corp v. Ventana Env. Org. P’ship, 109 Cal. App. 4th 1705, 1713 (2003)). The Court would be hard pressed to find a case where the claims asserted against the non-signatories and the signatory are more “intimately intertwined” and “inherently inseparable” than here, where all the claims alleged against all defendants are identical. Garcia puts paid to any notion that Sunrise cannot enforce Caramazza’s arbitration agreement. In that case, an employee of a temporary staffing company brought an action against the signatory staffing company and the nonsignatory employer for violations of the Labor Code and unfair business practices pertaining to payment of wages. As here, Garcia alleged that all of the conduct alleged in the Complaint was attributable to all of the defendants, who all acted as the agents of one another and each under the others’ direction. Id. at 785. Each cause of action was alleged against “All Defendants” without making any distinction between them. Id. In explaining why Garcia was compelled to arbitrate against the non-signatory, the Court wrote: 7 CASE NO. CGC-20-583137 DEFENDANTS' REPLY TO OPPOSITION TO MOTION TO COMPEL ARBITRATION 53255089;2 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 . F IF T H S T 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 Garcia cannot avoid his obligation to arbitrate his causes of action arising out of his employment relationship by framing his claims as merely statutory. On these facts, it is inequitable for the arbitration about Garcia’s assignment with Pexco to proceed with Real Time, while preventing Pexco from participating. This is because Garcia’s claims against Pexco are rooted in his employment relationship with Real Time, and the governing arbitration agreement expressly includes statutory wage and hour claims. Garcia does not distinguish between Real Time and Pexco in any way. All of Garcia’s claims are based on the same facts alleged against Real Time. Garcia cannot attempt to link Pexco to Real Time to hold it liable for alleged wage and hour claims, while at the same time arguing the arbitration provision only applies to Real Time and not Pexco. Garcia agreed to arbitrate his wage and hour claims against his employer, and Garcia alleges Pexco and Real Time were his joint employers. Because the arbitration agreement controls Garcia’s employment, he is equitably estopped from refusing to arbitrate his claims with Pexco. Id. at 787-88 (emphasis added). Further, Caramazza expressly alleges that Greystar and Sunrise are agents of each other. Complaint, ¶ 17. “A nonsignatory to an agreement to arbitrate may be required to arbitrate, and may invoke arbitration against a party, if a preexisting confidential relationship, such as an agency relationship between the nonsignatory and one of the parties to the arbitration agreement, makes it equitable to impose the duty to arbitrate upon the nonsignatory.” Westra v. Marcus & Millichap Real Estate Inv. Brokerage Co., 129 Cal. App. 4th 759, 765 (2005). Greystar acts as property manager for the Montecito, an apartment property where Caramazza worked, which is owned by Sunrise. In this role, Greystar acts as Sunrise’s agent because it “undertakes to transact some business, or manage some affair, for another, by authority of and on account of the latter, and to render an account of those transactions.’” Castillo v. Glenair, Inc., 23 Cal. App. 5th 262, 277; citing 2B Cal.Jur.3d (2015) Agency, § 1, p. 149. “‘The chief characteristic of the agency is that of representation, the authority to act for and in the place of the principal for the purpose of bringing him or her into legal relations with third parties.’ The significant test of an agency relationship is the principal’s right to control the activities of the agent. It is not essential that the right of control be exercised or that there be actual supervision of the work of the agent; the existence of the right establishes the relationship.’” Id. at 277-78; citing Violette v. Shoup (1993) 16 Cal.App.4th 611, 620.; see also DeSuza v. Andersack, 63 Cal.App.3d 694 (1976) (“The right of the alleged principal to control the behavior of the alleged agent is an essential element which must be factually present in order to establish the existence of agency, 8 CASE NO. CGC-20-583137 DEFENDANTS' REPLY TO OPPOSITION TO MOTION TO COMPEL ARBITRATION 53255089;2 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 . F IF T H S T 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 and has long been recognized as such in the decisional law.”) “‘It is not essential that the right of control be exercised or that there be actual supervision of the work of the agent; the existence of the right establishes the relationship.’” Id. at 282; citing Violette v. Shoup, supra, 16 Cal.App.4th at 620. However, “It need not be shown that [the staffing agency] generally controlled [the employer]. Rather, it must be shown that [the staffing agency] had the right to control [the employer] with respect to the specific agency at issue…” Id. III. THE AGREEMENT IS NOT VOID DUE TO FRAUD BECAUSE GREYSTAR DID NOT MISREPRESENT THE AGREEMENT A fraud requires a misrepresentation. Nowhere in the opposition does Caramazza allege Greystar misrepresented the nature of the arbitration agreement. Nor could he, because neither he nor Ms. Velasco-who Caramazza alleges would have read the arbitration agreement to him-remember reviewing the arbitration agreement.2 This is hardly substantial evidence of fraud in the execution. Notably, in Rosenthal v. Great Western Fin. Sec. Corp., 14 Cal. 4th 394, 402 (1996)-the only case Caramazza cites for this argument-the Supreme Court recognized that the plaintiff has the burden of proof to establish fraud in the execution, and in that case held that “most of the plaintiffs did not present legally sufficient evidence that they reasonably relied on fraudulent representations” sufficient to support their defense of fraud in the execution. Indeed, Rosenthal holds that fraud in the execution requires a showing of “fraud so fundamental that they were deceived as to the basic character of the documents they signed and had no reasonable opportunity to learn the truth.” Id. at 425. Here, Caramazza does not remember receiving the arbitration agreement and Velasco does not remember assisting him with it. This does not prove a misrepresentation, but only witnesses with poor memories. Greystar can show, however, that it did not hide the ball. The arbitration agreement was presented as a freestanding document, with no other terms, conspicuously entitled “Mutual Agreement to Arbitrate Claims.” It was presented with a detailed Q&A document, widely distributed and made available to employees on the company’s HR portal. Eisner Reply Dec., ¶5, Ex. B. When initially 2 Caramazza also relies on a declaration from Kemberly Alvarado Rojas, who also claims not to have remembered reading the Arbitration Agreement to Caramazza. Ms. Rojas’s observations are irrelevant because she was hired in 2017, after Caramazza executed the Arbitration Agreement. Rojas Dec., ¶¶ 3-4. 9 CASE NO. CGC-20-583137 DEFENDANTS' REPLY TO OPPOSITION TO MOTION TO COMPEL ARBITRATION 53255089;2 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 . F IF T H S T 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 implemented (and when Caramazza received it), Greystar gave employees three months to review the arbitration agreement and expressly invited them to have independent counsel review it. Eisner Reply Dec., ¶¶ 4-6. There is no evidence that Caramazza was deceived as to the character of the document he signed or that he “had no reasonable opportunity to learn the truth.” This is simply a case where Caramazza signed a document, and now claims to have not understood what he was doing. IV. THE AGREEMENT IS NOT UNCONSCIONABLE Caramazza argues that the arbitration agreement is unconscionable, but his arguments are easily disposed. Greystar acknowledges that the arbitration agreement is an adhesion contract, and it is a mandatory condition of employment. But contrary to Caramazza’s position, numerous courts have held that mandatory arbitration agreements, “without more, would give rise to a low degree of procedural unconscionability at most.” Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1262 (9th Cir. 2017) (citing Baltazar v. Forever 21, Inc., 62 Cal. 4th 1237, 1245). Caramazza calls the arbitration agreement “the epitome of procedural unconscionability caused by surprise.” This is absurd. There is nothing surprising about a freestanding arbitration agreement conspicuously entitled “Mutual Agreement to Arbitrate.” There was no small print. Caramazza estimates that it would have taken him three days to review the agreement without assistance. Greystar gave him three months to do so. Indeed, Caramazza had access to the agreement for three full weeks before he executed it. Nor is there substantive unconscionability. Caramazza relies only on a purported PAGA waiver in the agreement to support his argument. First, this is not even true. The agreement (which was designed to be used nationwide) states in its severability clause that “[t]his Agreement shall be self-amending; meaning if by law or common law a provision is deemed unlawful or unenforceable, that provision and the Agreement automatically, immediately and retroactively shall be amended, modified, and/or altered to be enforceable.” Eisner Dec. ¶5, Ex. A. By operation, the agreement by its terms excludes PAGA actions from its ambit. But that point notwithstanding, Caramazza has not cited a single case holding that a PAGA waiver is substantively unconscionable, and Greystar is not aware of any. Rather, courts routinely sever PAGA waivers and compel the arbitrable claims to 10 CASE NO. CGC-20-583137 DEFENDANTS' REPLY TO OPPOSITION TO MOTION TO COMPEL ARBITRATION 53255089;2 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 . F IF T H S T 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 arbitration. See Poublon, 846 F. 3d at 1251 (holding that the unenforceability of a PAGA waiver does not constitute substantive unconscionability); see also Whitworth v. SolarCity Corp., 336 F. Supp. 3d 1119, 1130 (N.D. Cal. 2018) (severing the PAGA claim and compelling remaining claims to arbitration). V. CONCLUSION For the foregoing reasons, Defendants respectfully request that the Court compel Caramazza’s individual claims to arbitration. DATED: May 27, 2020 AKERMAN LLP By: Damien P. DeLaney Ashley N. Bobo Attorneys for Defendants GREYSTAR MANAGEMENT SERVICES, LP; and BRADLEY JOHNSON 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: DEFENDANTS' REPLY TO OPPOSITION TO 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)
