Marcia Marsh v. Vacasa, Llc

NOTICE OF MOTION AND MOTION to Compel Arbitration, NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.April 24, 2017

LITTLER MENDELSON, P.C. 633 WEST 5TH STREET 63RD FLOOR LOS ANGELES, CA 90071 213.443.4300 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 CARLOS JIMENEZ, Bar No. 227534 cajimenez@littler.com RADHA D.S. KULKARNI, Bar No. 293996 rkulkarni@littler.com LITTLER MENDELSON, P.C. 633 West 5th Street 63rd Floor Los Angeles, CA 90071 Telephone: 213.443.4300 ANDREW M. SPURCHISE, Bar No. 245998 aspurchise@littler.com LITTLER MENDELSON, P.C. 900 Third Avenue New York, NY 10022 Telephone: 212.583.9600 Fax No.: 212.832.2719 Attorneys for Defendant VACASA LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MARCIA MARSH, individually and on behalf of all others similarly situated, Plaintiff, v. VACASA LLC, an Oregon limited liability company, Defendant. Case No. 2:17-cv-01328-MWF-(JCx) HON. MICHAEL W. FITZGERALD NOTICE OF MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION TO COMPEL ARBITRATION AND DISMISS THE COMPLAINT [9 U.S.C. §§ 3, 4] Date: June 5, 2017 Time: 10:00 a.m. Courtroom: 5A Trial Date: Not assigned Complaint Filed: February 17, 2017 Case 2:17-cv-01328-MWF-JC Document 11 Filed 04/24/17 Page 1 of 22 Page ID #:43 LITTLER MENDELSON, P .C . 6 3 3 W e s t 5 t h S t r e e t 6 3 r d F l o o r L o s A n g e l e s , C A 9 0 0 7 1 2 1 3 . 4 4 3 . 4 3 0 0 TABLE OF CONTENTS PAGE (No. ) i.. 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 I. INTRODUCTION ................................................................................................................... 1 II. STATEMENT OF RELEVANT FACTS ................................................................................ 2 A. The Defendant .............................................................................................................. 2 B. Plaintiff Agreed To Arbitrate Her Employment Related Claims................................. 2 C. Plaintiff Has Breached Her Agreement To Arbitrate By Filing The Instant Civil Lawsuit ................................................................................................................ 6 III. VACASA’S MOTION SHOULD BE GRANTED ................................................................. 6 A. The Federal Arbitration Act Applies To The Arbitration Provision ............................ 7 B. The Arbitration Provision Is Valid And Must Be Enforced ........................................ 8 1. The Delegation Clause In The Arbitration Provision Is Valid And Enforceable ...................................................................................................... 8 a. The delegation clause is clear and unmistakable ................................. 8 b. The delegation clause is not unconscionable ..................................... 10 2. The Gateway Issues Under The FAA Have Been Satisfied .......................... 11 a. A valid agreement to arbitrate exists ................................................. 11 b. Plaintiff’s claims fall within the scope of the Arbitration Agreement .......................................................................................... 12 C. The Class And Collective Action Waivers Are Valid And Enforceable ................... 13 IV. CONCLUSION ...................................................................................................................... 16 Case 2:17-cv-01328-MWF-JC Document 11 Filed 04/24/17 Page 2 of 22 Page ID #:44 LITTLER MENDELSON, P .C . 6 3 3 W e s t 5 t h S t r e e t 6 3 r d F l o o r L o s A n g e l e s , C A 9 0 0 7 1 2 1 3 . 4 4 3 . 4 3 0 0 TABLE OF AUTHORITIES PAGE (No. ) ii.. 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 Cases AT&T Mobility, LLC v. Concepcion, 563 U.S. 333 (2011) .............................................................................................................7, 13, 14 Brennan v. Opus Bank, 796 F.3d 1125 (9th Cir. 2015) .........................................................................................................8 Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006) .....................................................................................................................7, 8 Circuit City Stores, Inc. v. Ahmed, 283 F.3d 1198 (9th Cir. 2002) .......................................................................................................10 Citizens Bank v. Alafabco, Inc., 539 U.S. 52 (2003) ...........................................................................................................................7 Condee v. Longwood Mgmt. Corp., 88 Cal. App. 4th 215 (2001) ..........................................................................................................11 Direct TV, Inc. v. Imburgia, __ U.S. __, 136 S. Ct. 463 (2015) ....................................................................................................7 Dwyer v. Dynetech Corp., 2007 U.S. Dist. LEXIS 71647 (N.D. Cal. Sept. 17, 2007) ............................................................12 First Options of Chicago v. Kaplan, 514 U.S. 938 (1995) .......................................................................................................................11 Hall St. Assoc., LLC v. Mattel, Inc., 552 U.S. 576 (2008) .........................................................................................................................7 Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 (2002) ...........................................................................................................................8 Johnmohammadi v. Bloomingdale’s, Inc., 755 F.3d 1072 (9th Cir. 2014) .......................................................................................................15 Kilgore v. KeyBank, Nat. Ass’n, 718 F.3d 1052 (9th Cir. 2013) (en banc) .................................................................................10, 11 Marathon Entertainment v. Blasi, 42 Cal.4th 974 (2008) ......................................................................................................................5 Marin Storage & Trucking, Inc. v. Benco Contracting & Eng’g, Inc., 89 Cal. App. 4th 1042 (2001) ........................................................................................................11 Case 2:17-cv-01328-MWF-JC Document 11 Filed 04/24/17 Page 3 of 22 Page ID #:45 LITTLER MENDELSON, P .C . 6 3 3 W e s t 5 t h S t r e e t 6 3 r d F l o o r L o s A n g e l e s , C A 9 0 0 7 1 2 1 3 . 4 4 3 . 4 3 0 0 TABLE OF AUTHORITIES (CONTINUED) PAGE (No. ) iii.. 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 Mastrobuono v. Shearson Lehman Hutton, 514 U.S. 52 (1995) .....................................................................................................................7, 13 Mohamed v. Uber Techs. Inc., 848 F.3d 1201 (9th Cir. 2016) .........................................................................................8, 9, 10, 11 Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 2016), cert. granted (U.S. Jan. 13, 2017) ..................................................15 Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) .......................................................................................................................7, 12 Oracle America, Inc. v. Myriad Group A.G., 724 F. 3d 1069 (9th Cir. 2013) ........................................................................................................9 PacifiCare Health Sys., Inc. v. Book, 538 U.S. 401 (2003) .........................................................................................................................8 Perry v. Thomas, 482 U.S. 483 (1987) .........................................................................................................................7 Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63 (2010) ...........................................................................................................................8 Sakkab v. Luxottica Retail North America, Inc., 803 F.3d 425 (9th Cir. 2015) ...........................................................................................................5 Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758...............................................................................................................................14 Strotz v. Dean Witter Reynolds, Inc., 223 Cal.App.3d 208 (1990) ...........................................................................................................12 Tiri v. Lucky Chances, Inc., 226 Cal. App. 4th 231 (2014) ..........................................................................................................9 United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960) .......................................................................................................................12 Volt Info. Sciences v. Bd. of Trustees, 489 U.S. 468 (1989) .......................................................................................................................13 Wash. Mut. Fin. Group, LLC v. Bailey, 364 F.3d 260 (5th Cir. 2004) .........................................................................................................11 Case 2:17-cv-01328-MWF-JC Document 11 Filed 04/24/17 Page 4 of 22 Page ID #:46 LITTLER MENDELSON, P .C . 6 3 3 W e s t 5 t h S t r e e t 6 3 r d F l o o r L o s A n g e l e s , C A 9 0 0 7 1 2 1 3 . 4 4 3 . 4 3 0 0 TABLE OF AUTHORITIES (CONTINUED) PAGE (No. ) iv.. 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 Statutes 9 U.S.C. § 2 ............................................................................................................................................7 9 U.S.C. § 3 .................................................................................................................................6,15, 16 9 U.S.C. § 4 ...................................................................................................................................6,8, 13 Business and Professions Code §§ 17200. .............................................................................................1 Cal. Lab. Code §§ 2698. ........................................................................................................................1 Civ. Code, §§ 1550 ..............................................................................................................................12 Fair Labor Standards Act ..................................................................................................................1,13 Federal Arbitration Act ..........................................................................................................................7 National Labor Relations Act (NLRA) ................................................................................................15 Other Authorities AAA Employment Rule R-6 ..................................................................................................................9 Case 2:17-cv-01328-MWF-JC Document 11 Filed 04/24/17 Page 5 of 22 Page ID #:47 LITTLER MENDELSON, P.C. 633 WEST 5TH STREET 63RD FLOOR LOS ANGELES, CA 90071 213.443.4300 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 NOTICE OF MOTION AND MOTION PLEASE TAKE NOTICE that on June 5, 2017 at 10:00 a.m., or as soon thereafter as the matter may be heard, in Courtroom 5A of this Court, located at First Street Courthouse, 350 West First Street, Los Angeles, California 90012, Defendant Vacasa LLC (“Vacasa”) will, and hereby does, move the Court for an order: (i) compelling Plaintiff Marcia Marsh (“Plaintiff”) to arbitrate her claims against Defendant, other than those brought under the Private Attorneys General Act of 2004, Cal. Labor Code §§ 2698, et seq. (“PAGA”), on an individual basis only; (ii) striking and dismissing Plaintiff’s class and collective allegations; and (iii) staying Plaintiff’s PAGA claim pending individual arbitration. This motion is made pursuant to the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (“FAA”), and is brought on the grounds that Plaintiff’s claims against Vacasa are subject to a valid and enforceable arbitration agreement that requires Plaintiff to arbitrate any dispute with Vacasa on an individual basis only, and not in a court of law. This motion is made following the conference of counsel pursuant to L.R. 7-3 which took place on March 10, 2017 between Carlos Jimenez and Ali Carlsen. This motion is based on this Notice of Motion and Motion, the Memorandum of Points and Authorities included herein, the Declaration of Amie Wilson filed herewith, the pleadings and papers on file in this action, and such additional evidence and argument as may be presented at or prior to the time of the hearing. Dated: April _24, 2017 /S/ CARLOS JIMENEZ CARLOS JIMENEZ RADHA D.S. KULKARNI LITTLER MENDELSON, P.C. Attorneys for Defendant VACASA LLC Case 2:17-cv-01328-MWF-JC Document 11 Filed 04/24/17 Page 6 of 22 Page ID #:48 LITTLER MENDELSON, P.C. 633 WEST 5TH STREET 63RD FLOOR LOS ANGELES, CA 90071 213.443.4300 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. I. INTRODUCTION Plaintiff Marcia Marsh (“Plaintiff”) voluntarily agreed to be bound by a mutual and enforceable agreement to arbitrate any claim, dispute or controversy relating to her employment relationship with Defendant Vacasa LLC (“Defendant” or “Vacasa”). By signing and not opting out of her Dispute Resolution Agreement (the “Arbitration Agreement”) with Vacasa, Plaintiff specifically agreed that she would arbitrate any claim against Vacasa related to alleged violations of federal and state wage and hour law, including claims relating to unpaid wages, breaks and rest periods, among others. Plaintiff and Vacasa further agreed that they would bring any claim in arbitration on an individual basis only, and not on a class or collective basis. Nevertheless, Plaintiff contravened her agreement to arbitrate by initiating the instant class and collective action lawsuit asserting the following causes of action on behalf of herself and other similarly situated employees: 1) Failure to Pay Minimum Wages; 2) Failure to Pay Overtime Wages; 3) Failure to Provide Meal Periods; 4) Failure to Permit Rest Breaks; 5) Failure to Reimburse for Business Expenses; 6) Failure to Provide Accurate Itemized Wage Statements; 7) Failure to Pay All Wages Due Upon Separation of Employment; 8) Violation of Business and Professions Code §§ 17200, et seq.; 9) Violation of Fair Labor Standards Act; and 10) Violation of Cal. Lab. Code §§ 2698, et seq. (“PAGA”). Each and every one of Plaintiff's claims arises directly from Plaintiff’s employment relationship while either working with Vacasa or her subsequent termination of employment, and thus all of Plaintiff's claims, with the exception of her representative claim for civil penalties under PAGA, are subject to binding, individual arbitration pursuant to the parties’ Arbitration Agreement. In light of the Parties’ agreement to arbitrate all claims, as well as federal and state precedent and policy strongly favoring the enforceability of arbitration agreements, the Court should order Plaintiff to individual arbitration in accordance with her agreement, strike and dismiss her class and collective claims, and stay her PAGA claim pending individual arbitration. Case 2:17-cv-01328-MWF-JC Document 11 Filed 04/24/17 Page 7 of 22 Page ID #:49 LITTLER MENDELSON, P.C. 633 WEST 5TH STREET 63RD FLOOR LOS ANGELES, CA 90071 213.443.4300 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 2. II. STATEMENT OF RELEVANT FACTS A. The Defendant Vacasa offers professional property management services for a network of thousands of privately owned vacation homes available for rent in the United States, and in Central and South America. (Declaration of Amie Wilson (“Wilson Decl.”), at ¶ 2.) Vacasa coordinates property marketing, reservations, housekeeping services, maintenance, and provides other related services to streamline the rental experience for property owners and vacationers. (Id.) Vacasa’s corporate headquarters are in Portland, Oregon, but the company employs hundreds of employees local to the rental properties it manages to maintain the properties and deal with other related issues impacting owners and vacationers. (Id. ¶ 3.) B. Plaintiff Agreed To Arbitrate Her Employment Related Claims Plaintiff began her employment with Vacasa on or about March 28, 2016 as a Housekeeper based out of Anaheim. (Wilson Decl., ¶ 8.) At the commencement of her employment, Plaintiff was presented with a Dispute Resolution Agreement (the “Arbitration Agreement”), which Plaintiff chose to sign the same day. (Wilson Decl., ¶ 9, Ex. B.) The Arbitration Agreement begins by explaining what Plaintiff was reviewing and later agreeing to: 1. What this Agreement Is. This Dispute Resolution Agreement (“Agreement”) is a binding contract between Vacasa, LLC (“the Company”) and you under which any claim, dispute or controversy arising out of or relating to this Agreement or your employment relationship with the Company must be submitted to binding arbitration for resolution. This Agreement is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. and evidences a transaction involving commerce. (Wilson Decl., ¶ 9, Ex. B.) Plaintiff had the right to opt out of the optional Arbitration Agreement by simply emailing or faxing Human Resources notice of her intent to opt out, within 30 days of receiving the Arbitration Agreement. (Id. at ¶¶ 6, 9) Plaintiff’s right to opt out of the agreement without consequence was presented in bold lettering before any Case 2:17-cv-01328-MWF-JC Document 11 Filed 04/24/17 Page 8 of 22 Page ID #:50 LITTLER MENDELSON, P.C. 633 WEST 5TH STREET 63RD FLOOR LOS ANGELES, CA 90071 213.443.4300 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 3. of the substantive terms of the Arbitration Agreement were explained: 2. Employee Right To Opt Out Of Arbitration. This Agreement is not a mandatory condition of Employee's employment at the Company, and therefore an Employee may submit a statement notifying the Company that the Employee wishes to opt out and not be subject to this Agreement. If an Employee wants to opt out, he or she must notify the Company of the intention to opt out by submitting a signed and dated statement stating that Employee is opting out of this Agreement to the Company's Human Resources Department via e-mail at hr@vacasa.com or via fax to 503-406-2581. In order for an opt out to be effective, the signed and dated opt out statement MUST BE PROVIDED to the Company's Human Resources department within 30 days of Employee's receipt of this Agreement. An Employee who timely opts out as provided in this paragraph will not be subject to any adverse employment action as a consequence of that decision and may pursue available legal remedies without regard to this Agreement. Should an Employee not opt out of this Agreement within 30 days of the Employee’s receipt of this Agreement, continuing the Employee’s employment constitutes mutual acceptance of the terms of this Agreement by Employee and the Company. An Employee has the right to consult with counsel of the Employee’s choice concerning this Agreement. (Wilson Decl., ¶ 9, Ex. B; emphasis in original). Thus, not only is the right of employees to opt out of the non-mandatory Arbitration Agreement strongly highlighted, but the simple procedure by which to opt out, without threat of retaliation, is also clearly emphasized. Plaintiff also acknowledged the existence of the Arbitration Agreement in her “Offer of Hire” which reiterated her right to opt out of arbitration if she wished. (Wilson Decl., ¶ 8, Ex. A.) Plaintiff chose not to opt out, though many employees have done so. (Wilson Decl., ¶ 6.) The Arbitration Agreement also sets forth the procedure governing arbitration, and the disputes that are covered: Except as otherwise provided in this Agreement, this Agreement applies to any claim, dispute or controversy arising out of or relating to this Agreement or your employment relationship with the Company. As used in this Agreement, a "claim" includes, without limitation, Case 2:17-cv-01328-MWF-JC Document 11 Filed 04/24/17 Page 9 of 22 Page ID #:51 LITTLER MENDELSON, P.C. 633 WEST 5TH STREET 63RD FLOOR LOS ANGELES, CA 90071 213.443.4300 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 4. any claim of unlawful discrimination, harassment, or retaliation under any federal or state employment statute or regulation (such as the Civil Rights Act of 1964, the Americans With Disabilities Act, the Age Discrimination in Employment Act, the Family Medical Leave Act, the Fair Labor Standards Act, the Code of Federal Regulations, and state statutes or regulations, if any, addressing the same or similar subject matters); any claim for compensation of any kind; any claim relating to breaks and rest periods; any claim under the common law (such as wrongful discharge, assault/battery, defamation, intentional/negligent infliction of emotional distress, etc.); and any other claim relating to or arising under any other federal or state statutory and common law. For purposes of this Agreement only, "claim" also includes any claim asserted against any person or entity in any legal relationship to the Company, such as any officer, director, principal, shareholder, member, owner, employee, or agent of the Company, and any person or entity with whom the Company has a franchise relationship (such as a franchisor and its officers, directors, principals, shareholders, members, owners, employees, and agents), whether or not such persons or entities are signatory to this Agreement. (Wilson Decl., ¶ 9, Ex. B; emphasis added.) The Arbitration Agreement is also explicit with respect to the parties’ obligation to arbitrate claims on an individual basis only, rather than a class or collective basis, and in accordance with the Employment Arbitration Rules of the American Arbitration Association: Except as otherwise provided in this Agreement, the Company and you agree that any claim, dispute or controversy as described above must, at the request of either party, be settled by final and binding arbitration conducted in accordance with the then-current Employment Arbitration Rules of the American Arbitration Association or its successor organization (the "AAA") as modified by the following provisions, on an individual basis (not a class action)… (Wilson Decl., ¶ 9, Ex. B; emphasis added.). Plaintiff’s notice of the Class Action Waiver was again specified in further detail in bold lettering later in the Arbitration Agreement: Case 2:17-cv-01328-MWF-JC Document 11 Filed 04/24/17 Page 10 of 22 Page ID #:52 LITTLER MENDELSON, P.C. 633 WEST 5TH STREET 63RD FLOOR LOS ANGELES, CA 90071 213.443.4300 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. 6. Class, Collective and Representative Action Waivers. You and the Company agree to bring any claim in arbitration on an individual basis only, and not on a class, collective, or private attorney general basis, as follows: (a) There will be no right or authority for any claim to be brought, heard or arbitrated as a class action (“Class Action Waiver”). The Class Action Waiver shall not be severable from this Agreement in any case in which (1) the claim is filed as a class action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable. In such instances, the class action must be litigated in a civil court of competent jurisdiction. (b) There will be no right or authority for any claim to be brought, heard or arbitrated as a collective action (“Collective Action Waiver”). The Collective Action Waiver shall not be severable from this Agreement in any case in which (1) the dispute is filed as a collective action and (2) there is a final judicial determination that the Collective Action Waiver is unenforceable. In such instances, the collective action must be litigated in a civil court of competent jurisdiction. (Wilson Decl., ¶ 9, Ex. B.) 1 Hence, by agreeing to the Arbitration Agreement, Plaintiff agreed not to bring a class, collective, or PAGA action. Additionally, even if the Class Action Waiver is found to be unenforceable, the waiver is not severable from the rest of the Arbitration Agreement and the class action must be litigated in court. In contrast, if there is a final judicial determination that the PAGA Waiver is 1 The Arbitration Agreement also contains a waiver of Plaintiff’s right to bring “Private Attorney General” actions on a representative basis. In light of Sakkab v. Luxottica Retail North America, Inc., 803 F.3d 425 (9th Cir. 2015), Vacasa does not seek at this time to enforce this voluntary “Private Attorney General Waiver” as to Plaintiff’s PAGA claims. To the extent the Court finds that this provision is unenforceable, it should be severed in accordance with the express terms of the Arbitration Agreement and under the doctrine of severability. (Wilson Decl., Ex. B, ¶ 6.); see Marathon Entertainment v. Blasi, 42 Cal.4th 974 (2008) (concluding that doctrine of severability could apply to contracts for personal services and that it could be applied to partially enforce such contracts). Case 2:17-cv-01328-MWF-JC Document 11 Filed 04/24/17 Page 11 of 22 Page ID #:53 LITTLER MENDELSON, P.C. 633 WEST 5TH STREET 63RD FLOOR LOS ANGELES, CA 90071 213.443.4300 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 6. unenforceable, it is severable from the Arbitration Agreement (Wilson Decl., Ex. B, ¶ 6.), and then the PAGA claims must be litigated in Court, while the underlying claims are arbitrated. Finally, the Arbitration Agreement contains an integration clause, which provides, in relevant part: This Agreement is the full and complete agreement relating to and replaces all prior agreements regarding the resolution of any and all employment-related controversies or disputes. Except as stated in paragraph 6 above, in the event any portion of this Agreement is deemed unenforceable, the remainder of this Agreement will be enforceable. If the Class Action Waiver, Collective Action Waiver or Private Attorney General Waiver is deemed to be unenforceable, the Company and Employee agree that this Agreement is otherwise silent as to any party's ability to bring a class, collective or representative action in arbitration. (Wilson Decl., ¶ 9, Ex. B; emphasis added.) C. Plaintiff Has Breached Her Agreement To Arbitrate By Filing The Instant Civil Lawsuit Despite her right to opt out of the Arbitration Agreement and its explicit terms requiring individual arbitration of all employment claims, Plaintiff has filed the instant lawsuit. The lawsuit is comprised of exactly the types of claims that the parties’ contract forbids Plaintiff from bringing in Court. As such, counsel for Defendant has attempted to meet and confer with Plaintiff asking her to honor the Arbitration Agreement and avoid filing this Motion to Compel. (Declaration of Carlos Jimenez (“Jimenez Decl.”), ¶¶ 3-4.) Despite being reminded of her obligation to arbitrate, Plaintiff still refused to comply with her agreement. III. VACASA’S MOTION SHOULD BE GRANTED The Court should order Plaintiff to arbitrate her non-PAGA claims on an individual basis pursuant to the FAA, 9 U.S.C. §§ 3-4, because Plaintiff voluntarily entered into an enforceable arbitration agreement, expressly waiving her right to pursue her class and collective claims in court. Case 2:17-cv-01328-MWF-JC Document 11 Filed 04/24/17 Page 12 of 22 Page ID #:54 LITTLER MENDELSON, P.C. 633 WEST 5TH STREET 63RD FLOOR LOS ANGELES, CA 90071 213.443.4300 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 7. A. The Federal Arbitration Act Applies To The Arbitration Provision As affirmed by the United States Supreme Court in AT&T Mobility, LLC v. Concepcion, 563 U.S. 333, 346 (2011), the FAA declares a liberal policy favoring the enforcement of arbitration agreements. The FAA provides: “A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction … shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. In enacting the FAA, Congress sought to overcome widespread judicial hostility to the enforcement of arbitration agreements. Hall St. Assoc., LLC v. Mattel, Inc., 552 U.S. 576, 581 (2008); Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443 (2006) (explaining that the FAA was enacted “[t]o overcome judicial resistance to arbitration”). It is designed “to move the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 22 (1983). To this end, the FAA not only places arbitration agreements on equal footing with other contracts, but amounts to a “congressional declaration of a liberal federal policy favoring arbitration agreements.” Perry v. Thomas, 482 U.S. 483, 489 (1987) (emphasis added). The instant Arbitration Agreement before the Court is indisputably governed by the FAA. First, the Arbitration Agreement so states, which is sufficient to bring it within the purview of the FAA. See Mastrobuono v. Shearson Lehman Hutton, 514 U.S. 52, 63-64 (1995) (FAA applies even where contract also provides that state law governs); Direct TV, Inc. v. Imburgia, __ U.S. __, 136 S. Ct. 463, 468-471 (2015) (FAA applies even if agreement designates a state choice of law). Second, the Arbitration Agreement evidences a transaction involving commerce. The FAA’s term “involving commerce” is interpreted broadly. Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 56 (2003). Plaintiff’s employment with Vacasa, a company which manages properties all over the United States, involves commerce Case 2:17-cv-01328-MWF-JC Document 11 Filed 04/24/17 Page 13 of 22 Page ID #:55 LITTLER MENDELSON, P.C. 633 WEST 5TH STREET 63RD FLOOR LOS ANGELES, CA 90071 213.443.4300 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 8. sufficient for the FAA to apply. B. The Arbitration Provision Is Valid And Must Be Enforced The FAA requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement, consistent with the principle that arbitration is a matter of contract. 9 U.S.C. § 4. In determining whether to compel arbitration under the FAA, generally only two “gateway” issues need to be evaluated by the Court: (1) whether there is a valid agreement to arbitrate between the parties; and (2) whether the agreement covers the dispute. PacifiCare Health Sys., Inc. v. Book, 538 U.S. 401, 407 n.2 (2003); Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83-84 (2002). 1. The Delegation Clause In The Arbitration Provision Is Valid And Enforceable Before reaching these gateway issues, however, a court must examine the underlying contract to determine whether the parties have agreed to submit the threshold question of arbitrability to the arbitrator. Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 70 (2010) (“An agreement to arbitrate a gateway issue is simply an additional antecedent agreement the party seeking arbitration asks the court to enforce, and the FAA operates on this additional arbitration agreement just as it does on any other.”); Buckeye Check Cashing, 546 U.S. at 446. If so, under Rent-A-Center, the arbitrator must address the threshold question of arbitrability. See, e.g., Mohamed v. Uber Techs. Inc., 848 F.3d 1201, 1208-09 (9th Cir. 2016) (holding that clear and unmistakable delegation clauses must be held enforceable under binding Supreme Court precedent); Brennan v. Opus Bank, 796 F.3d 1125, 1130-1132 (9th Cir. 2015) (“a court must enforce an agreement that, as here, clearly and unmistakably delegates arbitrability questions to the arbitrator.”). a. The delegation clause is clear and unmistakable. It is well settled that when a contract provides the Employment Arbitration Rules of the American Arbitration Association (the “AAA Employment Rules”) will Case 2:17-cv-01328-MWF-JC Document 11 Filed 04/24/17 Page 14 of 22 Page ID #:56 LITTLER MENDELSON, P.C. 633 WEST 5TH STREET 63RD FLOOR LOS ANGELES, CA 90071 213.443.4300 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 9. govern any covered dispute, the arbitrator must decide all threshold issues of arbitrability, including the existence and enforceability of the agreement to arbitrate. See Oracle America, Inc. v. Myriad Group A.G., 724 F. 3d 1069 (9th Cir. 2013) (citing with approval the “majority” view that incorporation of the AAA Rules is a clear and unmistakable delegation of arbitrability to the arbitrator). The Arbitration Agreement at issue here explicitly states the AAA Employment Rules shall govern any covered dispute. (Wilson Decl., Ex. B, ¶ 4). AAA Employment Rule R-6 (Jurisdiction) states, “The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement” or “to the arbitrability of any claim or counterclaim.” (Jimenez Decl., ¶ 5, Ex. A) (emphasis added). Rule R- 6.b further states: “The arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part. Such an arbitration clause shall be treated as an agreement independent of the other terms of the contract.” (Id.) (emphasis added).2 As further evidence of the parties’ unmistakable intent, the Arbitration Agreement also provides that only disputes regarding the enforceability or validity of the Class, Collective or Private Attorney General Waiver provisions may be decided by the Court and not by an arbitrator, thus leaving for the arbitrator all other threshold issues. (Wilson Decl. ¶ 9, Ex. B, ¶ 6); Mohamed, supra, 848 F.3d at 1209 (holding that delegation clauses that are clear and unmistakable yet carve out challenges to class, collective, and representative action waivers are still enforceable); Tiri v. Lucky Chances, Inc., 226 Cal. App. 4th 231, 248-250 (2014) (courts cannot deny enforcement of a delegation clause without naming an unfair term that would impede the “overarching purpose of the FAA.”). 2 The Arbitration Agreement also provides that “The arbitrator shall resolve all disputes regarding the timeliness or propriety of the demand for arbitration.” (Wilson Decl. ¶ 9, Ex. B, ¶ 4(b)). Additionally, the “Agreement requires all claims to be resolved only by an arbitrator through final and binding arbitration and not by way of court or jury trial.” (Id. at ¶ 5) (emphasis added). Case 2:17-cv-01328-MWF-JC Document 11 Filed 04/24/17 Page 15 of 22 Page ID #:57 LITTLER MENDELSON, P.C. 633 WEST 5TH STREET 63RD FLOOR LOS ANGELES, CA 90071 213.443.4300 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 10. Accordingly, there is no ambiguity that the arbitrator, and not any court or jury, has been delegated authority to determine the validity or application of any of the provisions of the Arbitration Agreement. b. The delegation clause is not unconscionable. The next question for the Court to decide is whether the delegation clause is unconscionable. Binding Ninth Circuit authority compels the conclusion that the Arbitration Agreement is not adhesive nor procedurally unconscionable because the opt-out provision provides for the existence of a meaningful right to opt-out, rendering the delegation provision procedurally conscionable as a matter of law. See, e.g., Mohamed, supra, 848 F.3d at 1211 (holding that an arbitration agreement is not adhesive if there is an opportunity to opt out); Circuit City Stores, Inc. v. Ahmed, 283 F.3d 1198, 1199 (9th Cir. 2002) (same); see also Kilgore v. KeyBank, Nat. Ass’n, 718 F.3d 1052, 1059 (9th Cir. 2013) (en banc). The Arbitration Agreement contains a conspicuous opt-out provision, rendering the Arbitration Agreement voluntary, and thus free from procedural unconscionability. Plaintiff’s right to opt out of the Arbitration Provision is described on the very first page and second paragraph of the Agreement as a standalone section of the Arbitration Agreement with the underlined and bolded title “Employee Right To Opt Out Of Arbitration.” (Wilson Decl., ¶ 9, Ex. B, ¶ 2.) The Arbitration Agreement also expressly explains that: (1) arbitration is “not a mandatory condition of [Plaintiff’s] employment at the Company”; (2) Plaintiff would “not be subject to any adverse employment action as a consequence of [the decision to opt out]”; and (3) Plaintiff had the “right to consult with counsel of [her] choice” concerning the Arbitration Agreement. (Id.) Plaintiff had 30 days to inform Vacasa of her desire to opt out. (Id.) Although Plaintiff did not opt out of the Arbitration Agreement, numerous employees who work for Vacasa have, in fact, exercised their rights to do so. (Id., ¶ 6.) This meaningful opportunity to opt out precludes any finding of procedural unconscionability and therefore requires enforcement of the Arbitration Case 2:17-cv-01328-MWF-JC Document 11 Filed 04/24/17 Page 16 of 22 Page ID #:58 LITTLER MENDELSON, P.C. 633 WEST 5TH STREET 63RD FLOOR LOS ANGELES, CA 90071 213.443.4300 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 11. Agreement. See Mohamed, supra, 848 F.3d at 1211 (holding that an arbitration agreement is not procedurally unconscionable if there is an opportunity to opt out); Kilgore, 718 F.3d at 1059 (9th Cir. 2013) (holding that an arbitration provision is not procedurally unconscionable if it “allows [signatories] to reject arbitration” through an opt-out procedure). Thus, the delegation clause in the Arbitration Agreement is a valid and enforceable agreement entered into by the parties, and Plaintiff must be ordered to arbitrate all threshold issues of arbitrability, leaving only the enforceability of the Class and Collective Action Waivers for the Court. 2. The Gateway Issues Under The FAA Have Been Satisfied Even if the Court were to find that it, rather than the arbitrator, should evaluate the enforceability of the Arbitration Provision, notwithstanding the clear and unmistakable delegation clause, both of the “gateway” issues have been satisfied here, and thus, Plaintiff’s claims should be compelled to arbitration. a. A valid agreement to arbitrate exists. General contract law principles apply to the interpretation and enforcement of arbitration agreements. First Options of Chicago v. Kaplan, 514 U.S. 938, 944 (1995); see also Wash. Mut. Fin. Group, LLC v. Bailey, 364 F.3d 260, 264 (5th Cir. 2004). Vacasa’s burden is minimal – it is only required to establish, by a preponderance of evidence, that a valid agreement to arbitrate exists. Condee v. Longwood Mgmt. Corp., 88 Cal. App. 4th 215, 218-219 (2001) (party seeking to compel arbitration needs only prove, by a preponderance of the evidence, that an agreement to arbitrate exists). A valid agreement to arbitrate exists, as here, Plaintiff (i) twice affirmatively acknowledged her intent – in the Offer of Hire and the Arbitration Agreement itself - after ample opportunity to review, to be bound by the terms of the Arbitration Agreement; and (ii) had 30 days after receipt of the Arbitration Agreement to consider whether to opt out, but did not do so. Marin Storage & Trucking, Inc. v. Benco Case 2:17-cv-01328-MWF-JC Document 11 Filed 04/24/17 Page 17 of 22 Page ID #:59 LITTLER MENDELSON, P.C. 633 WEST 5TH STREET 63RD FLOOR LOS ANGELES, CA 90071 213.443.4300 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 12. Contracting & Eng’g, Inc., 89 Cal. App. 4th 1042, 1049-50 (2001) (“Every contract requires mutual assent or consent (Civ. Code, §§ 1550, 1565), and ordinarily one who signs an instrument which on its face is a contract is deemed to assent to all its terms.”). Further, the Arbitration Agreement is supported by valid consideration. See, e.g., Strotz v. Dean Witter Reynolds, Inc., 223 Cal.App.3d 208, 216 (1990) (holding that “[w]here an agreement to arbitrate exists, the parties' mutual promises to forego a judicial determination and to arbitrate their disputes provide consideration for each other.”). Plaintiff cannot avoid arbitration where Vacasa provided Plaintiff ample notice and at least 30 days to review the Arbitration Agreement before she became bound by it. See Dwyer v. Dynetech Corp., 2007 U.S. Dist. LEXIS 71647, at *11 (N.D. Cal. Sept. 17, 2007) (the fact that the plaintiff had four days to review arbitration agreement “weigh[ed] against a finding of procedural unconscionability”). Plaintiff’s meaningful opportunity to review, and to opt-out of the Arbitration Provision, and her multiple affirmations acknowledging assent to the Arbitration Agreement, conclusively establish a valid agreement to arbitrate. b. Plaintiff’s claims fall within the scope of the Arbitration Agreement. The second gateway issue is whether the dispute at issue is covered by the Arbitration Agreement. In making this determination, the FAA requires courts to apply a presumption in favor of arbitrability. See Moses H. Cone, 460 U.S. at 24-25. Indeed, courts must enforce arbitration agreements “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83 (1960). There can be no dispute that Plaintiff’s claims fall squarely within the arbitrable disputes set forth in the Arbitration Agreement. Plaintiff specifically agreed to arbitrate “any claim, dispute or controversy arising out of or relating to this Case 2:17-cv-01328-MWF-JC Document 11 Filed 04/24/17 Page 18 of 22 Page ID #:60 LITTLER MENDELSON, P.C. 633 WEST 5TH STREET 63RD FLOOR LOS ANGELES, CA 90071 213.443.4300 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 13. Agreement or [Plaintiff’s] employment relationship with the Company,” which includes “any claim for compensation of any kind,” “any claim relating to breaks and rest periods,” and “any other claim relating to or arising under any other federal or state statutory and common law.” (Wilson Decl., ¶ 9, Ex. B, ¶ 3.) Plaintiff’s claims for compensation (minimum wages, overtime wages, unreimbursed business expenses, accurate itemized wage statements, all wages due upon separation of employment, and violation of the FLSA) and meal and rest breaks clearly fall within the scope of the agreement to arbitrate, and the other claims are simply derivative of those claims and thus cannot be determined without individual arbitration of the arbitrable claims first. In sum, all non-PAGA issues raised by Plaintiff in her Complaint clearly fall within the scope of the agreement to arbitrate. (Wilson Decl., ¶ 9, Ex. B, ¶¶ 3, 5.) C. The Class And Collective Action Waivers Are Valid And Enforceable The only enforceability issues for the Court are those of the Class and Collective Action Waivers. As stated above, Section 4 of the FAA provides that a party may obtain an order compelling arbitration “in the manner provided for in [the parties’] agreement.” 9 U.S.C. § 4. The “primary purpose” of the FAA is “ensuring that private agreements to arbitrate are enforced according to their terms.” Volt Info. Sciences v. Bd. of Trustees, 489 U.S. 468, 479 (1989); see Mastrobuono v. Shearson Lehman Hutton, 514 U.S. 52, 53-54 (1995) (enforcement of arbitration agreements “according to their terms” is the “central purpose” of the FAA); see Concepcion, 131 S. Ct. at 1748 (same). The Arbitration Agreement states the Parties agree that any claim, dispute or controversy as described in the Arbitration Agreement must be settled by “final and binding arbitration… on an individual basis (not a class action)…” (Wilson Decl., Ex. B, ¶ 4). The Arbitration Provision further provides: “[Plaintiff] and the Company agree to bring any claim in arbitration on an individual basis only, and not on a Case 2:17-cv-01328-MWF-JC Document 11 Filed 04/24/17 Page 19 of 22 Page ID #:61 LITTLER MENDELSON, P.C. 633 WEST 5TH STREET 63RD FLOOR LOS ANGELES, CA 90071 213.443.4300 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 14. class, collective, or private attorney general basis…” (Id. at ¶ 6 (emphasis in original). Finally, the Arbitration Agreement provides, “There will be no right or authority for any claim to be brought, heard or arbitrated as a class action (“Class Action Waiver”).” (Id. at ¶ 6(a) (emphasis in original). In Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 130 S. Ct. 1758, the Supreme Court held that “a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.” Id. at 1764-65. Here, the parties did not agree to class arbitration and instead expressly prohibited class and collective claims. In Concepcion, the Supreme Court affirmed the enforceability of class waivers in FAA-governed arbitration agreements, reaffirming the bedrock principle that arbitration agreements must be enforced as written. The Court held that the California Supreme Court’s rule restricting enforcement of class action waivers was preempted by the FAA, because it interfered with the fundamental attributes of arbitration and created a scheme inconsistent with the FAA. See 131 S. Ct. at 1753. The Supreme Court also explained that class arbitration was inconsistent with the fundamental attributes of arbitration as contemplated by the FAA. Concepcion, 131 S. Ct. at 1750- 51. Likewise, in American Express Co. v. Italian Colors Restaurant, an appeal from a decision of the Second Circuit, the Supreme Court reiterated that courts “must rigorously enforce” arbitration agreements according to their terms, including terms that “specify with whom [the parties] choose to arbitrate their disputes.” 133 S. Ct. 2304, 2309 (2013). The Court reversed the Second Circuit and enforced a class action waiver in an arbitration agreement, ruling that a waiver in a FAA-governed arbitration agreement is enforceable, even if the plaintiff’s costs of individually arbitrating a claim exceed the potential individual recovery. Id. at 2311-12. Moreover, although in Morris et al. v. Ernst & Young, LLP, the Ninth Circuit found that a mandatory arbitration agreement requiring employees to bring claims in Case 2:17-cv-01328-MWF-JC Document 11 Filed 04/24/17 Page 20 of 22 Page ID #:62 LITTLER MENDELSON, P.C. 633 WEST 5TH STREET 63RD FLOOR LOS ANGELES, CA 90071 213.443.4300 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 15. “separate proceedings,” and thereby prohibiting class and collective actions, violated the employees’ right to engage in concerted activity under the National Labor Relations Act (NLRA), the Ninth Circuit did not extend its holding to waivers in agreements which are not required to be signed as a condition of employment. Morris v. Ernst & Young, LLP, 834 F.3d 975, 990 (9th Cir. 2016), cert. granted, (U.S. Jan. 13, 2017); (holding that under the NLRA, an employer may not “condition” employment on the requirement that an employee sign a concerted action waiver requiring employees to pursue legal claims against their employer exclusively through arbitration as individuals and in separate proceedings). The voluntary Class and Collective Waivers at issue here must be enforced in accordance with binding Ninth Circuit precedent. See Johnmohammadi v. Bloomingdale’s, Inc., 755 F.3d 1072, 1076 (9th Cir. 2014) (finding no NLRA Section 8 violation of the NLRA because the employee could have opted out of the individual dispute resolution agreement and chose not to). Plaintiff was informed that the Arbitration Agreement was not a mandatory condition of her employment at the Company. (Wilson Decl., ¶ 9, Ex. B, ¶ 2.) She thus could have opted out of the Arbitration Agreement if she wished to pursue or participate in a class or collective action. She chose not to do so, however, and therefore must be bound by her voluntary agreement. Under binding Supreme Court and Ninth Circuit precedent, the Parties’ agreement not to pursue class claims must be enforced, Plaintiff should be compelled to individual arbitration for her non-PAGA claims, Plaintiff’s class and collective allegations should be stricken and dismissed, and the PAGA claims must be stayed pending the outcome of the individual arbitrations. Further, in the event the Court declines to dismiss the Complaint pending arbitration, the FAA authorizes federal courts to stay litigation until the arbitration has been conducted “in accordance with the terms of the [parties’ arbitration] agreement . . . [.]” 9 U.S.C. § 3. Case 2:17-cv-01328-MWF-JC Document 11 Filed 04/24/17 Page 21 of 22 Page ID #:63 LITTLER MENDELSON, P.C. 633 WEST 5TH STREET 63RD FLOOR LOS ANGELES, CA 90071 213.443.4300 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 16. IV. CONCLUSION Because the Parties entered into a valid contract requiring the submission of any disputes arising out of Plaintiff’s relationship with Vacasa to be decided in arbitration on an individual basis, and this dispute falls within the scope of that agreement, this Court should order Plaintiff to individually arbitrate her non-PAGA claims against Vacasa, dismiss her class and collective claims, and stay her PAGA claims pending the outcome of the individual arbitration. See 9 U.S.C. § 3. Dated: April 24, 2017 /s/ CARLOS JIMENEZ CARLOS JIMENEZ RADHA D.S. KULKARNI LITTLER MENDELSON, P.C. Attorneys for Defendant VACASA LLC Firmwide:146971738.10 082185.1006 Case 2:17-cv-01328-MWF-JC Document 11 Filed 04/24/17 Page 22 of 22 Page ID #:64 Case 2:17-cv-01328-MWF-JC Document 11-1 Filed 04/24/17 Page 1 of 6 Page ID #:65 Case 2:17-cv-01328-MWF-JC Document 11-1 Filed 04/24/17 Page 2 of 6 Page ID #:66 Case 2:17-cv-01328-MWF-JC Document 11-1 Filed 04/24/17 Page 3 of 6 Page ID #:67 Case 2:17-cv-01328-MWF-JC Document 11-1 Filed 04/24/17 Page 4 of 6 Page ID #:68 Ex. A Page 1 Case 2:17-cv-01328-MWF-JC Document 11-1 Filed 04/24/17 Page 5 of 6 Page ID #:69 Ex. A Page 2 Case 2:17-cv-01328-MWF-JC Document 11-1 Filed 04/24/17 Page 6 of 6 Page ID #:70 Case 2:17-cv-01328-MWF-JC Document 11-2 Filed 04/24/17 Page 1 of 12 Page ID #:71 Case 2:17-cv-01328-MWF-JC Document 11-2 Filed 04/24/17 Page 2 of 12 Page ID #:72 Case 2:17-cv-01328-MWF-JC Document 11-2 Filed 04/24/17 Page 3 of 12 Page ID #:73 Case 2:17-cv-01328-MWF-JC Document 11-2 Filed 04/24/17 Page 4 of 12 Page ID #:74 Case 2:17-cv-01328-MWF-JC Document 11-2 Filed 04/24/17 Page 5 of 12 Page ID #:75 Ex. A Page 1 Case 2:17-cv-01328-MWF-JC Document 11-2 Filed 04/24/17 Page 6 of 12 Page ID #:76 Case 2:17-cv-01328-MWF-JC Document 11-2 Filed 04/24/17 Page 7 of 12 Page ID #:77 Ex. B Page 1 Case 2:17-cv-01328-MWF-JC Document 11-2 Filed 04/24/17 Page 8 of 12 Page ID #:78 Ex. B Page 2 Case 2:17-cv-01328-MWF-JC Document 11-2 Filed 04/24/17 Page 9 of 12 Page ID #:79 Ex. B Page 3 Case 2:17-cv-01328-MWF-JC Document 11-2 Filed 04/24/17 Page 10 of 12 Page ID #:80 Ex. B Page 4 Case 2:17-cv-01328-MWF-JC Document 11-2 Filed 04/24/17 Page 11 of 12 Page ID #:81 Ex. B Page 5 Case 2:17-cv-01328-MWF-JC Document 11-2 Filed 04/24/17 Page 12 of 12 Page ID #:82 LITTLER MENDELSON, P.C. 633 WEST 5TH STREET 63RD FLOOR LOS ANGELES, CA 90071 213.443.4300 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 CARLOS JIMENEZ, Bar No. 227534 cajimenez@littler.com RADHA D.S. KULKARNI, Bar No. 293996 rkulkarni@littler.com LITTLER MENDELSON, P.C. 633 West 5th Street 63rd Floor Los Angeles, CA 90071 Telephone: 213.443.4300 ANDREW M. SPURCHISE, Bar No. 245998 aspurchise@littler.com LITTLER MENDELSON, P.C. 900 Third Avenue New York, NY 10022 Telephone: 212.583.9600 Fax No.: 212.832.2719 Attorneys for Defendant VACASA LLC UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MARCIA MARSH, individually and on behalf of all others similarly situated, Plaintiff, v. VACASA LLC, an Oregon limited liability company, Defendant. Case No. 2:17-cv-01328-MWF-(JCx) HON. MICHAEL W. FITZGERALD [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO COMPEL ARBITRATION AND DISMISS THE COMPLAINT Date: June 5, 2017 Time: 10:00 a.m. Courtroom: 5A Trial Date: Not assigned Complaint Filed: February 17, 2017 Case 2:17-cv-01328-MWF-JC Document 11-3 Filed 04/24/17 Page 1 of 2 Page ID #:83 LITTLER MENDELSON, P.C. 633 WEST 5TH STREET 63RD FLOOR LOS ANGELES, CA 90071 213.443.4300 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. ORDER Defendant VACASA LLC’s ( “Defendant”) Motion To Compel Arbitration And Dismiss The Complaint came on regularly for hearing before this Court on June 5, 2017 the Honorable Michael W. Fitzgerald presiding. The Court, having read and considered the papers submitted in support of the Motion, and based upon the papers and pleadings on file in this matter as well as oral argument, if any, of the parties, and good cause appearing, decrees as follows: IT IS HEREBY ORDERED that, in light of the arbitration agreement entered into between the parties, Defendant’s Motion to Compel and Dismiss the Complaint is GRANTED. Plaintiff is ordered to individually arbitrate her non-PAGA claims against Vacasa, Plaintiff’s class and collective claims are dismissed, and Plaintiff’s PAGA claims are stayed pending the outcome of the individual arbitration. IT IS SO ORDERED. Dated: ______________________ __ HONORABLE MICHAEL W. FITZGERALD UNITED STATES DISTRICT COURT JUDGE Firmwide:147250774.2 082185.1006 Case 2:17-cv-01328-MWF-JC Document 11-3 Filed 04/24/17 Page 2 of 2 Page ID #:84