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1 LEWIS BRISBOIS BISGAARD & SMITH LLP
JOSEPH R. LORDAN, SB# 265610
2 E-Mail: Joseph.Lordan@lewisbrisbois.com ELECTRONICALLY
ALLISON L. CARDENAS, SB# 272924
3 E-Mail: Allison.Cardenas@lewisbrisbois.com F I L E D
Superior Court of California,
KAA BAO YANG, SB# 302155 County of San Francisco
4 E-Mail: Kaabao.Yang@lewisbrisbois.com
333 Bush Street, Suite 1100 05/06/2021
Clerk of the Court
5 San Francisco, California 94104-2872 BY: SANDRA SCHIRO
Telephone: 415.362.2580 Deputy Clerk
6 Facsimile: 415.434.0882
7 Attorneys for Defendants
EUROMOTORS, INC. dba MERCEDES-BENZ
8 OF SAN FRANCISCO and DARIN SPARROW
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SAN FRANCISCO
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LUKMAN DOTSON; ADEAJAI DOTSON; CASE NO. CGC-20-587463
13 and ALI HABIBVAND ,
DEFENDANT’S REPLY TO PLAINTIFFS’
14 Plaintiffs, OPPOSITION TO PETITION TO
COMPEL ARBITRATION
15 vs.
Date: May 13, 2021
16 EUROMOTORS, INC. DBA MERCEDES- Time: 9:30 a.m.
BENZ OF SAN FRANCISCO, a California Dept.: 302
17 corporation; DARIN SPARROW, an
individual; AND DOES 1-20, Action Filed: November 3, 2020
18 Trial Date: None Set
Defendants.
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4837-5152-3304.1 1
DEFENDANT’S REPLY TO PLAINTIFFS’ OPPOSITION TO PETITION TO COMPEL ARBITRATION
1 I. INTRODUCTION
2 Plaintiffs Lukman Dotson (“Lukman”), Ali Habibvand (“Habibvand”) and Adeajai Dotson
3 (“Adeajai”) do not dispute that:
4 1. Euromotors may properly invoke the Federal Arbitration Act as a business involved in
interstate commerce;
5 2. Plaintiffs’ signatures are embedded in all the arbitration agreements at issue;
3. Plaintiffs’ arbitration agreements provide for neutral arbitrators;
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4. Plaintiffs’ arbitration agreements provide for more than minimal discovery;
7 5. Plaintiffs’ arbitration agreements include the requirement of a written award;
6. Plaintiffs’ arbitration agreements provide for all of the types of relief that would otherwise be
8 available in court;
7. Plaintiffs’ arbitration agreements do not require employees to pay either unreasonable costs
9 or any arbitrators’ fees or expenses as a condition of access to the arbitration forum;
8. Procedural and substantive unconscionability are evaluated on a sliding scale and both must
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be shown to establish a defense against the enforceability of Plaintiffs’ arbitration
11 agreements; and
9. Plaintiffs’ claims fall within the scope of the parties’ arbitration agreements.
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As stated in Defendant’s moving papers, Plaintiffs voluntarily signed their arbitration
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agreements without coercion and the agreements’ terms meet the standards set forth in Armendariz.
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Because Plaintiffs cannot establish a defense to enforcement of these agreements, the Court must
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grant Defendant’s Petition to Compel Arbitration and stay this action. Plaintiffs’ primary reliance of
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Davis v. TWC Dealer Group, Inc. (2019) 41 Cal.App.5th 662 and OTO, L.L.C. v. Kho (2019) 8
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Cal.5th 11 and argument that the arbitration agreements are illusory are unavailing. This case is
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distinguishable from Davis, Kho and the authorities Plaintiffs cite in their Opposition to support their
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argument that the subject arbitration agreements are “illusory.”
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II. ARGUMENT
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A. Plaintiffs’ Arbitration Agreements Meet the Minimum Requirements set forth in
22 Armendariz.
23 The California Supreme Court specifically held that:
24 [C]laims are in fact arbitrable if the arbitration permits an employee to vindicate his or her
statutory rights. As explained, in order for such vindication to occur, the arbitration must
25 meet certain minimum requirements, including neutrality of the arbitrator, the provision of
adequate discovery, a written decision that will permit a limited form of judicial review, and
26 limitations on the costs of arbitration.
27 (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 90-91.) Here, as
28 Defendant set forth in its moving papers, Plaintiffs’ arbitration agreements’ comply with these
4837-5152-3304.1 2
DEFENDANT’S REPLY TO PLAINTIFFS’ OPPOSITION TO PETITION TO COMPEL ARBITRATION
1 minimum requirements and Plaintiffs make no mention in their Opposition that such minimum
2 requirements have not been met. As such, Plaintiffs’ claims are arbitrable.
3 B. Plaintiffs Fail to Establish Any Procedural Unconscionability.
4 As discussed in Defendant’s moving papers, the circumstances surrounding Plaintiffs’
5 signing these agreements do not establish procedural unconscionability. See Defendant’s MPA in
6 Support of Petition to Compel Arbitration, p. 15:25-16:19.
7 a. The Facts in Kho Regarding Procedural Unconscionability
are Distinguishable From the Facts Here.
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In Plaintiffs’ Opposition, they contend that OTO, L.L.C. v. Kho (2019) 8 Cal.5th 11 (“Kho”)
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is the controlling case for the Court’s analysis of procedural unconscionability. However, the
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circumstances and context of the Kho case are markedly different from the case at hand. In Kho, the
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Plaintiff was hired as a service technician for Defendant. (Kho, at 118.) Three years later, Plaintiff’s
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colleague, a low-level employee holding a porter position, approached Plaintiff in his workstation,
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presented him with employment-related documents, including an arbitration agreement, and asked
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him to sign all the documents. (Id.) Plaintiff was required to sign them immediately and return them
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to the porter, who waited in the workstation. (Id.) Plaintiff only took three or four minutes to sign all
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of the documents provided to him. (Id.) He had no opportunity to read them, nor were their contents
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explained. (Id.) Plaintiff’s first language was Chinese, yet he was not given a copy of the documents
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in that language. (Id.)
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On the topic of oppression, the Kho court noted:
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“[t]he circumstances here demonstrate significant oppression. . .One Toyota admits that Kho
21 was required to sign the agreement to keep the job he had held for three years. Because the
company used a piece-rate compensation system, any time Kho spent reviewing the
22 agreement would have reduced his pay. . . .Not only did One Toyota provide no explanation
for its demand for his signature, it selected a low-level employee, a ‘porter,’ to present the
23 Agreement, creating the impression that no request for an explanation was expected and any
such request would be unavailing.’ By having the porter wait for the documents, One Toyota
24 conveyed an expectation that Kho sign them immediately, without examination or
consultation with counsel.” (Kho, at 127.)
25 Here, the circumstances are much different. Unlike the Plaintiff in Kho, Plaintiffs are not
26 unsophisticated and spoke and read English with ease. They signed arbitration agreements as part of
27 their application which they were allowed to complete at the Company or at home and at their
28 leisure. They later signed additional arbitration agreements during onboarding with Human
4837-5152-3304.1 3
DEFENDANT’S REPLY TO PLAINTIFFS’ OPPOSITION TO PETITION TO COMPEL ARBITRATION
1 Resources. When Human Resources provided them with their onboarding paperwork, Human
2 Resources generally described the content of the paperwork and left them alone in the training room
3 with as much time as they needed to complete their review of the onboarding paperwork which
4 included their arbitration agreements. There was no pressure from management or Human Resources
5 to immediately complete their review or sign the documents. See Ibanez Dec. Ruble Dec., Supp.
6 Ibanez Dec., Supp. Ruble Dec., Sparrow Dec., Santos Dec., and Hineline Dec.
7 Moreover, in 2012, the Company gave Lukman and Habibvand ample time to review the
8 2012 arbitration agreements through its HotlinkHR system. In fact, while Lukman executed his
9 agreement on August 23, 2012, it took Habibvand almost a month later to execute his agreement on
10 September 14, 2012. Each Plaintiff was provided a personal desktop computer and desk where they
11 could view their arbitration agreements. See Supp. Ibanez Dec. Plaintiffs did not complain to
12 management or Human Resources about any of the documents that they received or executed.
13 Plaintiffs did not ask Ms. Ruble questions or attempt to negotiate the terms, Plaintiffs could have
14 consulted with an attorney and/or proposed edits, and Plaintiffs’ employment was not contingent on
15 their signing the agreements. Accordingly, unlike the facts in Kho, the Plaintiffs here cannot
16 establish oppression. Supp. Ibanez Dec., Supp. Ruble Dec., Sparrow Dec., Santos Dec., and Hineline
17 Dec.
18 Moreover, while the Kho Court found surprise existed in that case—noting the agreement
19 was a “paragon of prolixity, only slightly more than a page long but written in an extremely small
20 font. . . the single dense paragraph covering arbitration requires 51 lines… [and] the text [was]
21 “visually impenetrable” and “challenge[s] the limits of legibility,” the agreements here are
22 distinguishable. Lukman and Adeajai viewed their 2012 agreements electronically and could enlarge
23 the font as necessary as there was feature to zoom in documents on the HotlinkHR system. Supp.
24 Ibanez Dec. ¶ 8. As for Adeajai’s October 24, 2016 Binding Arbitration Agreement, while the font
25 may appear small, the agreement is legible. 1 The fact that the arbitration agreements were dense and
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Plaintiffs attached an October 24, 2016 Binding Arbitration Agreement executed by Adeajai that
appear to be washed out and of poor quality; however, the same agreement which is attached at Exhibit F to
28 Ibanez Declaration is a clean and clear copy. This copy is an accurate depiction of the agreement.
4837-5152-3304.1 4
DEFENDANT’S REPLY TO PLAINTIFFS’ OPPOSITION TO PETITION TO COMPEL ARBITRATION
1 contained typeface and legal jargon does not render the agreements procedurally unconscionable
2 given the context and circumstances. Therefore, Plaintiffs cannot establish that surprise existed.
3 b. The Facts in Davis Regarding Procedural Unconscionability
Are Distinguishable from The Facts Here.
4 Plaintiffs also rely on Davis to support their argument that the arbitration agreements they
5 executed were procedurally unconscionable. However, Davis is distinguishable from the facts here.
6 First, Davis states that the three Davis agreements were virtually identical to those in Kho.
7 Those agreements were visually impenetrable, contained a single block, had small typeface,
8 challenged the limits of legibility, and included complex legalistic language. (Davis v. TWC Dealer
9 Group, Inc. (2019) 41 Cal.App.5th 662, 671-672.) As discussed, Lukman and Habibvand could
10 zoom in their 2012 agreements as they reviewed them using desktop computers through the
11 HotlinkHR system. One of Adeajai’s October 24, 2016 agreements contains only nine lines. The
12 other may contain small typeface and legal jargon but this does not render it procedurally
13 unconscionable given there was no oppression. 2
14 Second, Davis states that the agreements were procedurally unconscionable because they
15 were presented with a “take-it-or-leave-it” pressure. (Davis, supra, at 673.) That is not the case here.
16 All Plaintiffs were provided ample time to review their agreements, they could have negotiated the
17 terms, and Defendant would have hired and continued to employ them regardless of whether they
18 agreed to the arbitration agreements. Supp. Ruble Dec. ¶ 4.
19 C. The Controlling Arbitration Agreements Are Not Substantively Unconscionable.
20 As set forth in Defendant’s moving papers, the agreements are not substantively
21 unconscionable. See Defendant's MPA in Support of Petition to Compel Arbitration, p. 15:14-20;
22 17:2-18:23.
23 a. The Agreements are Mutual.
24 In Plaintiffs’ Opposition, Plaintiffs rely heavily on Davis to support their contention that
25 Plaintiffs’ arbitration agreements are substantively unconscionable because they claim that like
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As discussed in more detail below, Lukman and Habibvand’s 2012 agreements and Adeajai’s two
28 October 24, 2016 agreements are the controlling agreements.
4837-5152-3304.1 5
DEFENDANT’S REPLY TO PLAINTIFFS’ OPPOSITION TO PETITION TO COMPEL ARBITRATION
1 Davis, the agreements here lack mutuality because they were only signed by the Plaintiffs and not
2 Defendant. Second, Plaintiffs rely on Flores v. Nature’s Best Distribution (2016) 7 Ca.l.App.5th 1,
3 9, for the proposition that the failure to identify parties in the arbitration agreements makes them
4 illusory. Specifically, Plaintiffs claim that Habibvand’s 2012 agreement does not include
5 Defendant’s name and thus is not mutual. Third, Plaintiffs argue that the clause in the agreement
6 which allows the company to change the arbitration agreements if signed by the president, evidences
7 a lack of mutuality. None of Plaintiffs’ arguments are availing.
8 First, it is not necessary for Defendant to sign the arbitration agreements. See Nguyen v.
9 Applied Med. Res. Corp. (2016) 4 Cal. App. 5th 232, 252-253 (no separate signature by employer
10 was required as the employer set binding arbitration of all disputes as a condition of plaintiff’s
11 employment); Cruise v. Kroger Co. (2015) 233 Cal. App. 4th 390, 397-399 (enforcing arbitration
12 agreement found in employment application signed only by the employee; the use of the ‘I agree’
13 language that expressly covers ‘all disputes’ creates a mutual agreement to arbitrate). Further, the
14 agreements do not lack mutuality as they clearly state “I and the company both agree that any claim,
15 dispute and/or controversy that either party may have against one another [...] shall be submitted to
16 and determined exclusively by binding arbitration." See Ibanez Dec. Exs. C & E.
17 Second, the fact that Habibvand’s controlling agreement does not include Defendant’s name
18 is of no consequence since a reasonable person could interpret it to give the mutual intention of the
19 parties and the contract clearly stated that “I and the company both agree that any claim, dispute
20 and/or controversy that either party may have against one another [...] shall be submitted to and
21 determined exclusively by binding arbitration." See Ibanez Dec., ¶ Ex. E. He knew the term
22 “company” referred to his employer.
23 Third, the agreements are not illusory because they provide that Defendant could unilaterally
24 amend the arbitration agreement by a signed writing of the President. Plaintiffs rely on Sparks v.
25 Vista Del Mar Child & Family Services (2012) 207 Cal.App.4th 1511, for the proposition that
26 unilateral modification provisions are substantively unconscionable and/or illusory. However,
27 Sparks involves an employer’s unilateral amendment to its lengthy handbook which contained an
28 arbitration clause. That is not the case here. The issue here does not involve modification to a
4837-5152-3304.1 6
DEFENDANT’S REPLY TO PLAINTIFFS’ OPPOSITION TO PETITION TO COMPEL ARBITRATION
1 handbook; the issue involves modification to arbitration agreements. In addition, at issue here are
2 stand-alone arbitration agreements, not a clause from a handbook. Further, the California Supreme
3 Court in Harris v. TAP Worldwide, LLC (2016) 248 Cal.App.4th 373, 387, held that an employer
4 possesses the unilateral right to alter the terms of future employment and that contrary to Sparks, the
5 employer’s right to change the Employee Handbook which contained the arbitration provision does
6 not render the arbitration agreement illusory. (See also, Peleg v. Neiman Marcus Group, Inc. (2012)
7 204 Cal.App.4th 1425, 1426 [“the covenant of good faith and fair dealing may save an arbitration
8 agreement from being illusory notwithstanding the absence of an express savings clause: A
9 unilateral modification provision that is silent as to whether contract changes apply to claims,
10 accrued or known, is impliedly restricted by the covenant so that changes do not apply to such
11 claims”]; Ingle v. Circuit City Stores, Inc. (9th Cir. 2003) 328 F.3d 1165, 1179 [the unilateral power
12 to terminate or modify a contract is illusory and substantively unconscionable when compounded
13 with the fact that the contract was adhesive in the first instance. In other words, a unilateral
14 modification provision by itself do not meet be requisite level of unconscionability to make an
15 agreement unenforceable (emphasis added)].) Moreover, Defendant did not amend the already-
16 signed agreements. Rather, it simply issued Plaintiffs’ new agreements to sign, which they did
17 voluntarily. Thus, the President need not sign the new agreements.
18 b. Lukman and Habibvand Has Only One Operative Arbitration
Agreement and Adeajai Has Two Operative Arbitration Agreements
19 That Do Not Contradict One Another.
20 As set forth in Defendant’s moving papers, the last signed agreements by Plaintiffs
21 supersedes all prior agreements. C.C.P. § 1856 (a). Plaintiffs argue that Plaintiffs Lukman and
22 Habibvand's last signed agreements may not be valid because prior agreement required
23 modifications to be signed by the president. Plaintiffs further argue that Adeajai's two last signed
24 agreements (signed on the same day) do not contain integration clauses so they are not the final
25 agreement. Adeajai's first arbitration agreement also states that modifications must be signed by the
26 president.
27 Plaintiff’s reliance on Davis for these points is misplaced. In Davis, the defendants sought to
28 enforce all three agreements signed by the Davises. The Davis Court found that the mere existence
4837-5152-3304.1 7
DEFENDANT’S REPLY TO PLAINTIFFS’ OPPOSITION TO PETITION TO COMPEL ARBITRATION
1 of three separate arbitration agreements signed by the Plaintiffs at the same time was confusing
2 because the Davises did not know which agreement was operative and the agreements contained
3 contradictory terms. (Davis v. TWC Dealer Group, Inc. at 675.) Specifically, the Davis court found
4 the following contradictory or confusing terms: C.C.P. § 1284.2 was not referred to in all the
5 agreements, the reference to the Federal Arbitration Act (9 U.S.C. §§ 3–4) had nothing to do with
6 the rules or procedures that would govern arbitration, and the agreements refer to the “Act” but
7 “Act” is not defined. (Id.)
8 Here, unlike in Davis Euromotors is seeking to only enforce the last arbitration agreements
9 signed by each Plaintiff. (See Plaintiffs’ Request for Judicial Notice in Support of Opposition to
10 Petition to Compel Arbitration (“Plaintiffs’ RJN”) Ex. 3, p. 3.) The parole evidence rule provides
11 that the terms of a writing intended by the parties as a final expression of their agreement cannot be
12 contradicted by evidence of either a prior agreement or a contemporaneous oral agreement. (Burch v.
13 Premier Homes, LLC (20 11) 199 Cal.App.4th 730, 741.) If a writing is integrated, extrinsic
14 evidence is only permitted to prove the meaning of language within the instrument. (Id.)
15 Notably, Lukman and Habibvand’s operative 2012 Acknowledgment and Agreements
16 contain an integration clause: “This is the entire agreement between the Company and I regarding
17 dispute resolution . . . and this agreement supersedes any and all prior agreements regarding these
18 issues to the extent that they differ from the foregoing.” Therefore, this integration clause transforms
19 Lukman and Habibvand’s 2012 agreements into their operative agreements, which supersede all
20 prior agreements. Prior agreements state "no implied, oral, or written agreements contrary to the
21 express language of this agreement are valid unless they are in writing and signed by the President of
22 the Company." (emphasis added.) As discussed in detail below, there are no "contrary"
23 modifications. Therefore, Lukman and Habibvand's last signed agreements remain their operative
24 agreement.
25 Plaintiffs also appear to argue that Lukman and Habibvand's last signed agreements referred
26 to prior "Arbitration Agreements" so all prior agreements titled "Arbitration Agreements" should be
27 incorporated with their last signed agreements. In Davis, Agreement 3 incorporated by reference an
28 “Arbitration Agreement” and therefore “appears” to incorporate Davis Agreement 2 because Davis
4837-5152-3304.1 8
DEFENDANT’S REPLY TO PLAINTIFFS’ OPPOSITION TO PETITION TO COMPEL ARBITRATION
1 Agreement 2 was entitled "Binding Arbitration Agreement," and contained the words, "At Will
2 Arbitration Agreement” at the footer. (See Plaintiff’s RJN, Ex. 3.) That is not the case here.
3 Lukman and Habibvand’s 2012 agreements state:
4 I understand that this handbook represents the current policies, regulations, and benefits and
that any and all policies or practices can be changed at any time by the Company. The
5 Company retains the right to add, change or delete wages, benefits, policies and all other
working conditions at any time (except the policy of "at-will employment" and Arbitration
6 Agreement, which may not be changed, altered, revised or modified without a writing signed
by the President of the Company). (Ibanez Dec. Exs. C & E (Emphasis added).)
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The foregoing references the Company’s policy of arbitration agreement contained in its
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Employee Handbook. There is no incorporation by reference of any actual “Arbitration Agreement”.
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Therefore, Lukman and Habibvand’s 2012 agreements are their only operative agreements. 3
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As for Adeajai, he signed two “Binding Arbitration Agreements” on October 24, 2016. Ibanez Dec.
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Ex. F; Plaintiffs’ Compendium of Arbitration Provisions, J3, p. 37. One details the terms of the
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agreement while the other is a short nine-line paragraph that appears at the end of Adeajai’s
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Compensation Plan. The arbitration agreement contained in the Compensation Plan was not
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previously addressed in the moving paper as the parties had conferred on all arbitration agreements
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prior to Defendant’s filing of its petition and the first time Plaintiffs mention this agreement is in
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their Opposition. Nonetheless, although Adeajai's two October 24, 2016 do not contain an
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integration clause, both can be reasonably interpreted to be the parties' mutual intent to make them
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the final arbitration agreement because they were signed four days after Adeajai's first agreement.
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In addition, even if all Plaintiffs’ agreements were controlling, this case is distinguishable
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from Davis. Plaintiffs’ agreements consistently referenced C.C.P. § 1284.2, or C.C.P. § 1280 et. seq.,
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which would include C.C.P. § 1284.2. See Supplemental Declaration of Kaa Bao Yang in Support of
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Defendant’s Reply (“Supp. Yang Dec.”) Exs. A-C. Although Plaintiffs’ agreements mentioned the
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“Federal Arbitration Act (9 U.S.C. §§ 3–4)” and did not define “Act,” but the agreements clearly
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state that they are governed by the Federal Arbitration Act and should conform with the procedures
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26 3
The Davis Court held that Agreement 3 contains an integration clause and supersedes Agreement 1,
even though Agreement 1 contains a requirement that modifications be signed by the President. (See
27 Plaintiffs’ RJN, Ex. 3.) The Davis Court also held that Agreement 3 was one of the operative arbitration
agreements even though it was entitled “Employee Acknowledgment and Agreement” and not “Arbitration
28 Agreement.” (See Plaintiffs’ RJN, Ex. 3.)
4837-5152-3304.1 9
DEFENDANT’S REPLY TO PLAINTIFFS’ OPPOSITION TO PETITION TO COMPEL ARBITRATION
1 of the California Arbitration Act. Id. Thus, Plaintiffs’ arbitrations are consistent, clear and not
2 confusing.
3 c. Any Provision Precluding Class Actions Can Be Severed.
4 Plaintiffs argue in their Opposition that the arbitration agreements precluding class actions
5 are unconscionable. Davis also held that the presence of provisions that: (1) “the arbitrator will hear
6 only … individual claims and does not have the authority to fashion a proceeding as a class or
7 collective action …”, and (2) “the Company has the right to defeat any attempt by [the Davises] to
8 file or join other employees in a class, collective or joint action or arbitration … .” could be read to
9 preclude Labor Code Private Attorneys General Act representative actions, a violation of public
10 policy. (Davis v. TWC Dealer Group, Inc. (2019) 41 Cal.App.5th 662, 675.) Plaintiffs’ agreements
11 contain a similar provision. However, this factor alone does not meet the requisite level of
12 unconscionability which requires both procedural and substantive unconscionability which are
13 clearly not met given the circumstances and context here.
14 d. Even If All of Plaintiffs’ Agreements Somehow Constitute Their
Operative Arbitration Agreement, The Minor Contradictory Terms Are
15 Inconsequential.
Plaintiffs argue in their opposition that the inconsistences and contradictions in Plaintiffs’
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arbitration agreements make them substantively unconscionable. The Davis Court states that the
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three Davis agreements contain several inconsistencies and contradictions because while one or two
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of the agreements had the following provisions, the other one or two did not: provision precluding
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any collective action lawsuit; statement precluding retaliation for exercising rights under section 7 of
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the National Labor Relations Act; provision that the arbitrator has the exclusive authority to resolve
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disputes relating to the interpretation and enforceability of the agreement; and an express waiver of
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the right to jury trial. In addition, one agreement contains an “integration clause,” stating it
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supersedes differing terms from “prior” agreements, but it was impossible to tell which agreement it
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superseded when it was signed on the same day as another agreement. (Davis, supra, at 675.)
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Unlike the arbitration agreements in Davis, Lukman signed only one superseding agreement
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over six years after the last agreements he signed. The provisions in all of his arbitration agreements
27
are also consistent, with only minor differences. For example:
28
4837-5152-3304.1 10
DEFENDANT’S REPLY TO PLAINTIFFS’ OPPOSITION TO PETITION TO COMPEL ARBITRATION
1 Only the last signed (operative) agreement precluded collective actions but such provision
alone does not meet the requisite level of unconscionability to make this agreement
2 unenforceable.
3 Only the last signed (operative) agreement explicitly precludes Defendant from retaliating
against Plaintiff for exercising his rights under section 7 of the National Labor Act, but this is
4 not in direct contradiction to the previous agreements which are silent on this issue.
Only the last signed (operative) agreement provides that the arbitrator has the exclusive
5 authority to resolve disputes relating to the interpretation and enforceability of the agreement.
However, this provision alone does not meet the requisite level of unconscionability to make
6
this agreement unenforceable.
7 Only the last signed (operative) agreement did not explicitly state that jury trial would be
waived but this is implied because the agreement makes it clear that by signing an agreement
8 to arbitrate, there would be no jury trial.
All but one agreement contains an integration clause. However, the last-in-time (operative)
9 agreement contains an integration clause, making this agreement the controlling agreement.
10 All agreements require the arbitrator to be a retired California Superior Court Judge. Only
two, which are not the last-in-time agreement, added that the arbitrator can also be an
11 “otherwise qualified individual.”
Only one agreement references an appeals process requiring a second arbitrator. However,
12 this is not the last-in-time agreement.
13 Supp. Yang Dec. Ex. A. As set forth in Exhibit A to Supplemental Yang Declaration, the
14 Agreements are virtually identical in all other aspects.
15 Similar to Lukman, Habibvand signed only one superseding agreement approximately one
16 year after the last agreements he signed. The provisions in all of Habibvand’s agreements are also
17 consistent and contain only minor differences, similar to the ones discussed above for Lukman. See
18 Supp. Yang Dec. Ex. B. To the extent that any provisions differ, Habibvand’s superseding 2012
19 agreement expressly stated that it is the superseding agreement for contradictory terms. In addition,
20 any unenforceable provisions are severable.
21 Adeajai’s agreements are also consistent with even fewer minor differences than those
22 discussed above for Lukman and Habibvand. See Supp. Yang Dec. Ex. C. To the extent that any
23 provisions differ, Adeajai’s superseding October 24, 2016 agreements are controlling and any
24 unenforceable provisions are severable. Accordingly, Plaintiffs’ arbitration agreements are not
25 substantively unconscionable.
26 III. CONCLUSION
27 For the reasons set forth above, Defendant respectfully requests that the Court grant its
28 Petition and stay judicial proceedings pending resolution of the arbitration.
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DEFENDANT’S REPLY TO PLAINTIFFS’ OPPOSITION TO PETITION TO COMPEL ARBITRATION
1 DATED: May 6, 2021 LEWIS BRISBOIS BISGAARD & SMITH LLP
2 By:
3 Joseph R. Lordan
Allison L. Cardenas
4 Kaa Bao Yang
Attorneys for Defendants
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Preview
1 LEWIS BRISBOIS BISGAARD & SMITH LLP JOSEPH R. LORDAN, SB# 265610 2 E-Mail: Joseph.Lordan@lewisbrisbois.com ELECTRONICALLY ALLISON L. CARDENAS, SB# 272924 3 E-Mail: Allison.Cardenas@lewisbrisbois.com F I L E D Superior Court of California, KAA BAO YANG, SB# 302155 County of San Francisco 4 E-Mail: Kaabao.Yang@lewisbrisbois.com 333 Bush Street, Suite 1100 05/06/2021 Clerk of the Court 5 San Francisco, California 94104-2872 BY: SANDRA SCHIRO Telephone: 415.362.2580 Deputy Clerk 6 Facsimile: 415.434.0882 7 Attorneys for Defendants EUROMOTORS, INC. dba MERCEDES-BENZ 8 OF SAN FRANCISCO and DARIN SPARROW 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO 11 12 LUKMAN DOTSON; ADEAJAI DOTSON; CASE NO. CGC-20-587463 13 and ALI HABIBVAND , DEFENDANT’S REPLY TO PLAINTIFFS’ 14 Plaintiffs, OPPOSITION TO PETITION TO COMPEL ARBITRATION 15 vs. Date: May 13, 2021 16 EUROMOTORS, INC. DBA MERCEDES- Time: 9:30 a.m. BENZ OF SAN FRANCISCO, a California Dept.: 302 17 corporation; DARIN SPARROW, an individual; AND DOES 1-20, Action Filed: November 3, 2020 18 Trial Date: None Set Defendants. 19 20 21 22 23 24 25 26 27 28 4837-5152-3304.1 1 DEFENDANT’S REPLY TO PLAINTIFFS’ OPPOSITION TO PETITION TO COMPEL ARBITRATION 1 I. INTRODUCTION 2 Plaintiffs Lukman Dotson (“Lukman”), Ali Habibvand (“Habibvand”) and Adeajai Dotson 3 (“Adeajai”) do not dispute that: 4 1. Euromotors may properly invoke the Federal Arbitration Act as a business involved in interstate commerce; 5 2. Plaintiffs’ signatures are embedded in all the arbitration agreements at issue; 3. Plaintiffs’ arbitration agreements provide for neutral arbitrators; 6 4. Plaintiffs’ arbitration agreements provide for more than minimal discovery; 7 5. Plaintiffs’ arbitration agreements include the requirement of a written award; 6. Plaintiffs’ arbitration agreements provide for all of the types of relief that would otherwise be 8 available in court; 7. Plaintiffs’ arbitration agreements do not require employees to pay either unreasonable costs 9 or any arbitrators’ fees or expenses as a condition of access to the arbitration forum; 8. Procedural and substantive unconscionability are evaluated on a sliding scale and both must 10 be shown to establish a defense against the enforceability of Plaintiffs’ arbitration 11 agreements; and 9. Plaintiffs’ claims fall within the scope of the parties’ arbitration agreements. 12 As stated in Defendant’s moving papers, Plaintiffs voluntarily signed their arbitration 13 agreements without coercion and the agreements’ terms meet the standards set forth in Armendariz. 14 Because Plaintiffs cannot establish a defense to enforcement of these agreements, the Court must 15 grant Defendant’s Petition to Compel Arbitration and stay this action. Plaintiffs’ primary reliance of 16 Davis v. TWC Dealer Group, Inc. (2019) 41 Cal.App.5th 662 and OTO, L.L.C. v. Kho (2019) 8 17 Cal.5th 11 and argument that the arbitration agreements are illusory are unavailing. This case is 18 distinguishable from Davis, Kho and the authorities Plaintiffs cite in their Opposition to support their 19 argument that the subject arbitration agreements are “illusory.” 20 II. ARGUMENT 21 A. Plaintiffs’ Arbitration Agreements Meet the Minimum Requirements set forth in 22 Armendariz. 23 The California Supreme Court specifically held that: 24 [C]laims are in fact arbitrable if the arbitration permits an employee to vindicate his or her statutory rights. As explained, in order for such vindication to occur, the arbitration must 25 meet certain minimum requirements, including neutrality of the arbitrator, the provision of adequate discovery, a written decision that will permit a limited form of judicial review, and 26 limitations on the costs of arbitration. 27 (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 90-91.) Here, as 28 Defendant set forth in its moving papers, Plaintiffs’ arbitration agreements’ comply with these 4837-5152-3304.1 2 DEFENDANT’S REPLY TO PLAINTIFFS’ OPPOSITION TO PETITION TO COMPEL ARBITRATION 1 minimum requirements and Plaintiffs make no mention in their Opposition that such minimum 2 requirements have not been met. As such, Plaintiffs’ claims are arbitrable. 3 B. Plaintiffs Fail to Establish Any Procedural Unconscionability. 4 As discussed in Defendant’s moving papers, the circumstances surrounding Plaintiffs’ 5 signing these agreements do not establish procedural unconscionability. See Defendant’s MPA in 6 Support of Petition to Compel Arbitration, p. 15:25-16:19. 7 a. The Facts in Kho Regarding Procedural Unconscionability are Distinguishable From the Facts Here. 8 In Plaintiffs’ Opposition, they contend that OTO, L.L.C. v. Kho (2019) 8 Cal.5th 11 (“Kho”) 9 is the controlling case for the Court’s analysis of procedural unconscionability. However, the 10 circumstances and context of the Kho case are markedly different from the case at hand. In Kho, the 11 Plaintiff was hired as a service technician for Defendant. (Kho, at 118.) Three years later, Plaintiff’s 12 colleague, a low-level employee holding a porter position, approached Plaintiff in his workstation, 13 presented him with employment-related documents, including an arbitration agreement, and asked 14 him to sign all the documents. (Id.) Plaintiff was required to sign them immediately and return them 15 to the porter, who waited in the workstation. (Id.) Plaintiff only took three or four minutes to sign all 16 of the documents provided to him. (Id.) He had no opportunity to read them, nor were their contents 17 explained. (Id.) Plaintiff’s first language was Chinese, yet he was not given a copy of the documents 18 in that language. (Id.) 19 On the topic of oppression, the Kho court noted: 20 “[t]he circumstances here demonstrate significant oppression. . .One Toyota admits that Kho 21 was required to sign the agreement to keep the job he had held for three years. Because the company used a piece-rate compensation system, any time Kho spent reviewing the 22 agreement would have reduced his pay. . . .Not only did One Toyota provide no explanation for its demand for his signature, it selected a low-level employee, a ‘porter,’ to present the 23 Agreement, creating the impression that no request for an explanation was expected and any such request would be unavailing.’ By having the porter wait for the documents, One Toyota 24 conveyed an expectation that Kho sign them immediately, without examination or consultation with counsel.” (Kho, at 127.) 25 Here, the circumstances are much different. Unlike the Plaintiff in Kho, Plaintiffs are not 26 unsophisticated and spoke and read English with ease. They signed arbitration agreements as part of 27 their application which they were allowed to complete at the Company or at home and at their 28 leisure. They later signed additional arbitration agreements during onboarding with Human 4837-5152-3304.1 3 DEFENDANT’S REPLY TO PLAINTIFFS’ OPPOSITION TO PETITION TO COMPEL ARBITRATION 1 Resources. When Human Resources provided them with their onboarding paperwork, Human 2 Resources generally described the content of the paperwork and left them alone in the training room 3 with as much time as they needed to complete their review of the onboarding paperwork which 4 included their arbitration agreements. There was no pressure from management or Human Resources 5 to immediately complete their review or sign the documents. See Ibanez Dec. Ruble Dec., Supp. 6 Ibanez Dec., Supp. Ruble Dec., Sparrow Dec., Santos Dec., and Hineline Dec. 7 Moreover, in 2012, the Company gave Lukman and Habibvand ample time to review the 8 2012 arbitration agreements through its HotlinkHR system. In fact, while Lukman executed his 9 agreement on August 23, 2012, it took Habibvand almost a month later to execute his agreement on 10 September 14, 2012. Each Plaintiff was provided a personal desktop computer and desk where they 11 could view their arbitration agreements. See Supp. Ibanez Dec. Plaintiffs did not complain to 12 management or Human Resources about any of the documents that they received or executed. 13 Plaintiffs did not ask Ms. Ruble questions or attempt to negotiate the terms, Plaintiffs could have 14 consulted with an attorney and/or proposed edits, and Plaintiffs’ employment was not contingent on 15 their signing the agreements. Accordingly, unlike the facts in Kho, the Plaintiffs here cannot 16 establish oppression. Supp. Ibanez Dec., Supp. Ruble Dec., Sparrow Dec., Santos Dec., and Hineline 17 Dec. 18 Moreover, while the Kho Court found surprise existed in that case—noting the agreement 19 was a “paragon of prolixity, only slightly more than a page long but written in an extremely small 20 font. . . the single dense paragraph covering arbitration requires 51 lines… [and] the text [was] 21 “visually impenetrable” and “challenge[s] the limits of legibility,” the agreements here are 22 distinguishable. Lukman and Adeajai viewed their 2012 agreements electronically and could enlarge 23 the font as necessary as there was feature to zoom in documents on the HotlinkHR system. Supp. 24 Ibanez Dec. ¶ 8. As for Adeajai’s October 24, 2016 Binding Arbitration Agreement, while the font 25 may appear small, the agreement is legible. 1 The fact that the arbitration agreements were dense and 26 27 1 Plaintiffs attached an October 24, 2016 Binding Arbitration Agreement executed by Adeajai that appear to be washed out and of poor quality; however, the same agreement which is attached at Exhibit F to 28 Ibanez Declaration is a clean and clear copy. This copy is an accurate depiction of the agreement. 4837-5152-3304.1 4 DEFENDANT’S REPLY TO PLAINTIFFS’ OPPOSITION TO PETITION TO COMPEL ARBITRATION 1 contained typeface and legal jargon does not render the agreements procedurally unconscionable 2 given the context and circumstances. Therefore, Plaintiffs cannot establish that surprise existed. 3 b. The Facts in Davis Regarding Procedural Unconscionability Are Distinguishable from The Facts Here. 4 Plaintiffs also rely on Davis to support their argument that the arbitration agreements they 5 executed were procedurally unconscionable. However, Davis is distinguishable from the facts here. 6 First, Davis states that the three Davis agreements were virtually identical to those in Kho. 7 Those agreements were visually impenetrable, contained a single block, had small typeface, 8 challenged the limits of legibility, and included complex legalistic language. (Davis v. TWC Dealer 9 Group, Inc. (2019) 41 Cal.App.5th 662, 671-672.) As discussed, Lukman and Habibvand could 10 zoom in their 2012 agreements as they reviewed them using desktop computers through the 11 HotlinkHR system. One of Adeajai’s October 24, 2016 agreements contains only nine lines. The 12 other may contain small typeface and legal jargon but this does not render it procedurally 13 unconscionable given there was no oppression. 2 14 Second, Davis states that the agreements were procedurally unconscionable because they 15 were presented with a “take-it-or-leave-it” pressure. (Davis, supra, at 673.) That is not the case here. 16 All Plaintiffs were provided ample time to review their agreements, they could have negotiated the 17 terms, and Defendant would have hired and continued to employ them regardless of whether they 18 agreed to the arbitration agreements. Supp. Ruble Dec. ¶ 4. 19 C. The Controlling Arbitration Agreements Are Not Substantively Unconscionable. 20 As set forth in Defendant’s moving papers, the agreements are not substantively 21 unconscionable. See Defendant's MPA in Support of Petition to Compel Arbitration, p. 15:14-20; 22 17:2-18:23. 23 a. The Agreements are Mutual. 24 In Plaintiffs’ Opposition, Plaintiffs rely heavily on Davis to support their contention that 25 Plaintiffs’ arbitration agreements are substantively unconscionable because they claim that like 26 27 2 As discussed in more detail below, Lukman and Habibvand’s 2012 agreements and Adeajai’s two 28 October 24, 2016 agreements are the controlling agreements. 4837-5152-3304.1 5 DEFENDANT’S REPLY TO PLAINTIFFS’ OPPOSITION TO PETITION TO COMPEL ARBITRATION 1 Davis, the agreements here lack mutuality because they were only signed by the Plaintiffs and not 2 Defendant. Second, Plaintiffs rely on Flores v. Nature’s Best Distribution (2016) 7 Ca.l.App.5th 1, 3 9, for the proposition that the failure to identify parties in the arbitration agreements makes them 4 illusory. Specifically, Plaintiffs claim that Habibvand’s 2012 agreement does not include 5 Defendant’s name and thus is not mutual. Third, Plaintiffs argue that the clause in the agreement 6 which allows the company to change the arbitration agreements if signed by the president, evidences 7 a lack of mutuality. None of Plaintiffs’ arguments are availing. 8 First, it is not necessary for Defendant to sign the arbitration agreements. See Nguyen v. 9 Applied Med. Res. Corp. (2016) 4 Cal. App. 5th 232, 252-253 (no separate signature by employer 10 was required as the employer set binding arbitration of all disputes as a condition of plaintiff’s 11 employment); Cruise v. Kroger Co. (2015) 233 Cal. App. 4th 390, 397-399 (enforcing arbitration 12 agreement found in employment application signed only by the employee; the use of the ‘I agree’ 13 language that expressly covers ‘all disputes’ creates a mutual agreement to arbitrate). Further, the 14 agreements do not lack mutuality as they clearly state “I and the company both agree that any claim, 15 dispute and/or controversy that either party may have against one another [...] shall be submitted to 16 and determined exclusively by binding arbitration." See Ibanez Dec. Exs. C & E. 17 Second, the fact that Habibvand’s controlling agreement does not include Defendant’s name 18 is of no consequence since a reasonable person could interpret it to give the mutual intention of the 19 parties and the contract clearly stated that “I and the company both agree that any claim, dispute 20 and/or controversy that either party may have against one another [...] shall be submitted to and 21 determined exclusively by binding arbitration." See Ibanez Dec., ¶ Ex. E. He knew the term 22 “company” referred to his employer. 23 Third, the agreements are not illusory because they provide that Defendant could unilaterally 24 amend the arbitration agreement by a signed writing of the President. Plaintiffs rely on Sparks v. 25 Vista Del Mar Child & Family Services (2012) 207 Cal.App.4th 1511, for the proposition that 26 unilateral modification provisions are substantively unconscionable and/or illusory. However, 27 Sparks involves an employer’s unilateral amendment to its lengthy handbook which contained an 28 arbitration clause. That is not the case here. The issue here does not involve modification to a 4837-5152-3304.1 6 DEFENDANT’S REPLY TO PLAINTIFFS’ OPPOSITION TO PETITION TO COMPEL ARBITRATION 1 handbook; the issue involves modification to arbitration agreements. In addition, at issue here are 2 stand-alone arbitration agreements, not a clause from a handbook. Further, the California Supreme 3 Court in Harris v. TAP Worldwide, LLC (2016) 248 Cal.App.4th 373, 387, held that an employer 4 possesses the unilateral right to alter the terms of future employment and that contrary to Sparks, the 5 employer’s right to change the Employee Handbook which contained the arbitration provision does 6 not render the arbitration agreement illusory. (See also, Peleg v. Neiman Marcus Group, Inc. (2012) 7 204 Cal.App.4th 1425, 1426 [“the covenant of good faith and fair dealing may save an arbitration 8 agreement from being illusory notwithstanding the absence of an express savings clause: A 9 unilateral modification provision that is silent as to whether contract changes apply to claims, 10 accrued or known, is impliedly restricted by the covenant so that changes do not apply to such 11 claims”]; Ingle v. Circuit City Stores, Inc. (9th Cir. 2003) 328 F.3d 1165, 1179 [the unilateral power 12 to terminate or modify a contract is illusory and substantively unconscionable when compounded 13 with the fact that the contract was adhesive in the first instance. In other words, a unilateral 14 modification provision by itself do not meet be requisite level of unconscionability to make an 15 agreement unenforceable (emphasis added)].) Moreover, Defendant did not amend the already- 16 signed agreements. Rather, it simply issued Plaintiffs’ new agreements to sign, which they did 17 voluntarily. Thus, the President need not sign the new agreements. 18 b. Lukman and Habibvand Has Only One Operative Arbitration Agreement and Adeajai Has Two Operative Arbitration Agreements 19 That Do Not Contradict One Another. 20 As set forth in Defendant’s moving papers, the last signed agreements by Plaintiffs 21 supersedes all prior agreements. C.C.P. § 1856 (a). Plaintiffs argue that Plaintiffs Lukman and 22 Habibvand's last signed agreements may not be valid because prior agreement required 23 modifications to be signed by the president. Plaintiffs further argue that Adeajai's two last signed 24 agreements (signed on the same day) do not contain integration clauses so they are not the final 25 agreement. Adeajai's first arbitration agreement also states that modifications must be signed by the 26 president. 27 Plaintiff’s reliance on Davis for these points is misplaced. In Davis, the defendants sought to 28 enforce all three agreements signed by the Davises. The Davis Court found that the mere existence 4837-5152-3304.1 7 DEFENDANT’S REPLY TO PLAINTIFFS’ OPPOSITION TO PETITION TO COMPEL ARBITRATION 1 of three separate arbitration agreements signed by the Plaintiffs at the same time was confusing 2 because the Davises did not know which agreement was operative and the agreements contained 3 contradictory terms. (Davis v. TWC Dealer Group, Inc. at 675.) Specifically, the Davis court found 4 the following contradictory or confusing terms: C.C.P. § 1284.2 was not referred to in all the 5 agreements, the reference to the Federal Arbitration Act (9 U.S.C. §§ 3–4) had nothing to do with 6 the rules or procedures that would govern arbitration, and the agreements refer to the “Act” but 7 “Act” is not defined. (Id.) 8 Here, unlike in Davis Euromotors is seeking to only enforce the last arbitration agreements 9 signed by each Plaintiff. (See Plaintiffs’ Request for Judicial Notice in Support of Opposition to 10 Petition to Compel Arbitration (“Plaintiffs’ RJN”) Ex. 3, p. 3.) The parole evidence rule provides 11 that the terms of a writing intended by the parties as a final expression of their agreement cannot be 12 contradicted by evidence of either a prior agreement or a contemporaneous oral agreement. (Burch v. 13 Premier Homes, LLC (20 11) 199 Cal.App.4th 730, 741.) If a writing is integrated, extrinsic 14 evidence is only permitted to prove the meaning of language within the instrument. (Id.) 15 Notably, Lukman and Habibvand’s operative 2012 Acknowledgment and Agreements 16 contain an integration clause: “This is the entire agreement between the Company and I regarding 17 dispute resolution . . . and this agreement supersedes any and all prior agreements regarding these 18 issues to the extent that they differ from the foregoing.” Therefore, this integration clause transforms 19 Lukman and Habibvand’s 2012 agreements into their operative agreements, which supersede all 20 prior agreements. Prior agreements state "no implied, oral, or written agreements contrary to the 21 express language of this agreement are valid unless they are in writing and signed by the President of 22 the Company." (emphasis added.) As discussed in detail below, there are no "contrary" 23 modifications. Therefore, Lukman and Habibvand's last signed agreements remain their operative 24 agreement. 25 Plaintiffs also appear to argue that Lukman and Habibvand's last signed agreements referred 26 to prior "Arbitration Agreements" so all prior agreements titled "Arbitration Agreements" should be 27 incorporated with their last signed agreements. In Davis, Agreement 3 incorporated by reference an 28 “Arbitration Agreement” and therefore “appears” to incorporate Davis Agreement 2 because Davis 4837-5152-3304.1 8 DEFENDANT’S REPLY TO PLAINTIFFS’ OPPOSITION TO PETITION TO COMPEL ARBITRATION 1 Agreement 2 was entitled "Binding Arbitration Agreement," and contained the words, "At Will 2 Arbitration Agreement” at the footer. (See Plaintiff’s RJN, Ex. 3.) That is not the case here. 3 Lukman and Habibvand’s 2012 agreements state: 4 I understand that this handbook represents the current policies, regulations, and benefits and that any and all policies or practices can be changed at any time by the Company. The 5 Company retains the right to add, change or delete wages, benefits, policies and all other working conditions at any time (except the policy of "at-will employment" and Arbitration 6 Agreement, which may not be changed, altered, revised or modified without a writing signed by the President of the Company). (Ibanez Dec. Exs. C & E (Emphasis added).) 7 The foregoing references the Company’s policy of arbitration agreement contained in its 8 Employee Handbook. There is no incorporation by reference of any actual “Arbitration Agreement”. 9 Therefore, Lukman and Habibvand’s 2012 agreements are their only operative agreements. 3 10 As for Adeajai, he signed two “Binding Arbitration Agreements” on October 24, 2016. Ibanez Dec. 11 Ex. F; Plaintiffs’ Compendium of Arbitration Provisions, J3, p. 37. One details the terms of the 12 agreement while the other is a short nine-line paragraph that appears at the end of Adeajai’s 13 Compensation Plan. The arbitration agreement contained in the Compensation Plan was not 14 previously addressed in the moving paper as the parties had conferred on all arbitration agreements 15 prior to Defendant’s filing of its petition and the first time Plaintiffs mention this agreement is in 16 their Opposition. Nonetheless, although Adeajai's two October 24, 2016 do not contain an 17 integration clause, both can be reasonably interpreted to be the parties' mutual intent to make them 18 the final arbitration agreement because they were signed four days after Adeajai's first agreement. 19 In addition, even if all Plaintiffs’ agreements were controlling, this case is distinguishable 20 from Davis. Plaintiffs’ agreements consistently referenced C.C.P. § 1284.2, or C.C.P. § 1280 et. seq., 21 which would include C.C.P. § 1284.2. See Supplemental Declaration of Kaa Bao Yang in Support of 22 Defendant’s Reply (“Supp. Yang Dec.”) Exs. A-C. Although Plaintiffs’ agreements mentioned the 23 “Federal Arbitration Act (9 U.S.C. §§ 3–4)” and did not define “Act,” but the agreements clearly 24 state that they are governed by the Federal Arbitration Act and should conform with the procedures 25 26 3 The Davis Court held that Agreement 3 contains an integration clause and supersedes Agreement 1, even though Agreement 1 contains a requirement that modifications be signed by the President. (See 27 Plaintiffs’ RJN, Ex. 3.) The Davis Court also held that Agreement 3 was one of the operative arbitration agreements even though it was entitled “Employee Acknowledgment and Agreement” and not “Arbitration 28 Agreement.” (See Plaintiffs’ RJN, Ex. 3.) 4837-5152-3304.1 9 DEFENDANT’S REPLY TO PLAINTIFFS’ OPPOSITION TO PETITION TO COMPEL ARBITRATION 1 of the California Arbitration Act. Id. Thus, Plaintiffs’ arbitrations are consistent, clear and not 2 confusing. 3 c. Any Provision Precluding Class Actions Can Be Severed. 4 Plaintiffs argue in their Opposition that the arbitration agreements precluding class actions 5 are unconscionable. Davis also held that the presence of provisions that: (1) “the arbitrator will hear 6 only … individual claims and does not have the authority to fashion a proceeding as a class or 7 collective action …”, and (2) “the Company has the right to defeat any attempt by [the Davises] to 8 file or join other employees in a class, collective or joint action or arbitration … .” could be read to 9 preclude Labor Code Private Attorneys General Act representative actions, a violation of public 10 policy. (Davis v. TWC Dealer Group, Inc. (2019) 41 Cal.App.5th 662, 675.) Plaintiffs’ agreements 11 contain a similar provision. However, this factor alone does not meet the requisite level of 12 unconscionability which requires both procedural and substantive unconscionability which are 13 clearly not met given the circumstances and context here. 14 d. Even If All of Plaintiffs’ Agreements Somehow Constitute Their Operative Arbitration Agreement, The Minor Contradictory Terms Are 15 Inconsequential. Plaintiffs argue in their opposition that the inconsistences and contradictions in Plaintiffs’ 16 arbitration agreements make them substantively unconscionable. The Davis Court states that the 17 three Davis agreements contain several inconsistencies and contradictions because while one or two 18 of the agreements had the following provisions, the other one or two did not: provision precluding 19 any collective action lawsuit; statement precluding retaliation for exercising rights under section 7 of 20 the National Labor Relations Act; provision that the arbitrator has the exclusive authority to resolve 21 disputes relating to the interpretation and enforceability of the agreement; and an express waiver of 22 the right to jury trial. In addition, one agreement contains an “integration clause,” stating it 23 supersedes differing terms from “prior” agreements, but it was impossible to tell which agreement it 24 superseded when it was signed on the same day as another agreement. (Davis, supra, at 675.) 25 Unlike the arbitration agreements in Davis, Lukman signed only one superseding agreement 26 over six years after the last agreements he signed. The provisions in all of his arbitration agreements 27 are also consistent, with only minor differences. For example: 28 4837-5152-3304.1 10 DEFENDANT’S REPLY TO PLAINTIFFS’ OPPOSITION TO PETITION TO COMPEL ARBITRATION 1 Only the last signed (operative) agreement precluded collective actions but such provision alone does not meet the requisite level of unconscionability to make this agreement 2 unenforceable. 3 Only the last signed (operative) agreement explicitly precludes Defendant from retaliating against Plaintiff for exercising his rights under section 7 of the National Labor Act, but this is 4 not in direct contradiction to the previous agreements which are silent on this issue. Only the last signed (operative) agreement provides that the arbitrator has the exclusive 5 authority to resolve disputes relating to the interpretation and enforceability of the agreement. However, this provision alone does not meet the requisite level of unconscionability to make 6 this agreement unenforceable. 7 Only the last signed (operative) agreement did not explicitly state that jury trial would be waived but this is implied because the agreement makes it clear that by signing an agreement 8 to arbitrate, there would be no jury trial. All but one agreement contains an integration clause. However, the last-in-time (operative) 9 agreement contains an integration clause, making this agreement the controlling agreement. 10 All agreements require the arbitrator to be a retired California Superior Court Judge. Only two, which are not the last-in-time agreement, added that the arbitrator can also be an 11 “otherwise qualified individual.” Only one agreement references an appeals process requiring a second arbitrator. However, 12 this is not the last-in-time agreement. 13 Supp. Yang Dec. Ex. A. As set forth in Exhibit A to Supplemental Yang Declaration, the 14 Agreements are virtually identical in all other aspects. 15 Similar to Lukman, Habibvand signed only one superseding agreement approximately one 16 year after the last agreements he signed. The provisions in all of Habibvand’s agreements are also 17 consistent and contain only minor differences, similar to the ones discussed above for Lukman. See 18 Supp. Yang Dec. Ex. B. To the extent that any provisions differ, Habibvand’s superseding 2012 19 agreement expressly stated that it is the superseding agreement for contradictory terms. In addition, 20 any unenforceable provisions are severable. 21 Adeajai’s agreements are also consistent with even fewer minor differences than those 22 discussed above for Lukman and Habibvand. See Supp. Yang Dec. Ex. C. To the extent that any 23 provisions differ, Adeajai’s superseding October 24, 2016 agreements are controlling and any 24 unenforceable provisions are severable. Accordingly, Plaintiffs’ arbitration agreements are not 25 substantively unconscionable. 26 III. CONCLUSION 27 For the reasons set forth above, Defendant respectfully requests that the Court grant its 28 Petition and stay judicial proceedings pending resolution of the arbitration. 4837-5152-3304.1 11 DEFENDANT’S REPLY TO PLAINTIFFS’ OPPOSITION TO PETITION TO COMPEL ARBITRATION 1 DATED: May 6, 2021 LEWIS BRISBOIS BISGAARD & SMITH LLP 2 By: 3 Joseph R. Lordan Allison L. Cardenas 4 Kaa Bao Yang Attorneys for Defendants 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4837-5152-3304.1 12 DEFENDANT’S REPLY TO PLAINTIFFS’ OPPOSITION TO PETITION TO COMPEL ARBITRATION