On March 15, 2023 a
Motion,Ex Parte
was filed
involving a dispute between
Ordaz, Oscar,
and
Brill, Inc.,
Does 1 To 50 Inclusive,
Rise Baking Company,
Rise Baking Company, Llc,
for Wrongful Termination Unlimited
in the District Court of San Bernardino County.
Preview
Dimuth C. Amaratunge, Esq., (State Bar No. 237158)
da@serendiblaw.com JFORNIA
COUNTY OF SIN BERNAR (OINO
Maya L. Serkova, Esq., (State Bar No. 307025) ‘SAN BERNARDINO DISTRICT
mserkova@serendiblaw.com
SERENDIB LAW FIRM, APC OCT 12 2023
765 The City Drive, Suite 355
Orange, California 92868
Phone: 714-703-1300
BY Cc )
VALERIE URUENA, DEPUTY
Fax: 714-703-1304
Attorneys for Oscar Ordaz
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN DIEGO?
10
11
Oscar Ordaz, an individual, CASE NO. CIV SB 2306529
12
Plaintiff,
13 Assigned for All Purposes To:
vs. Honorable Khymberli S. Apaloo
14
15 Brill, Inc., a California Corporation, PLAINTIFF'S MEMORANDUM OF
and DOES | to 50 inclusive; and Rise || POINTS AND AUTHORITIES IN
16 OPPOSITION TO DEFENDANTS'
Baking Company, a California Corporation, MOTION TO COMPEL ARBITRATION
17
and DOES 1 to 50 inclusive, AND STAY PROCEEDINGS PENDING
18 THE OUTCOME OF ARBITRATION
Defendants
19
20 | [(Proposed) Order; Oscar Ordaz
Declaration; Maya L. Serkova Declaration;
21 Objection to Erindira Marin’s Declaration
are Filed and Served Concurrently
22 Herewith]
23
DATE: October 12, 2023
24 TIME: 8:30 a.m.
DEPT: S25-SBJC
25
26
27
28
“ie
Table of Contents
1, INTRODUCTION AND SUMMARY OF FACTS...
Il. LEGAL STANDARD
Il]. THERE IS NO VALID ARBITRATION AGREEMENT THAT GOVERNS
PLAINTIFF'S CLAIMS.
IV. DEFENDANTS ARE NOT PARTIES, AGENTS, OR THIRD-PARTY
BENEFICIARIES TO THE AGREEEMENT THEY SEEK TO ENFORCE
1 Defendants are not parties to the Agreement. ....
10 2. Defendants are not third-party beneficiaries of the Agreement. ..........00:c0e dS)
11 . THE ARBITRATION PROVISIONS CANNOT BE ENFORCED BECAUSE THEY
12 ARE PROCEDURALLY AND SUBSTANTIVELY UNCONSCIONABLE. ......::00:00000000 7
13
A Purported Agreement Has a High Degree of Procedural Unconscionability.
14
1 The Provisions of Exhibit B “Arbitration Memorandum” are procedurally
15
unconscionable adhesion contracts. ..... 9
16
17 2. The Agreement includes substantively unconscionable terms 10
18 B. Even Assuming the Court Concludes There Is A Factual Or Evidentiary Question
19 As To The Existence Of The Arbitration Agreement, It Should Hold An Evidentiary
20 Hearing, After Allowing The Parties An Opportunity To Engage In Discovery, Before
21 Making A Final Ruling. ......0000.0ccccccccccscscesceeseeeneeseeeseeeeeeseecsceesseestsseeanensseneeesteneeeeeaeee 12
22
Cc The FAA Provides A Right To A Jury Trial If The Employee Disputes The
23
Actual Making Of An Arbitration Agreement .......0.0.0....cccccccscceseeeseseseeeseessesesrecsnenetensenes 13
VI. ARBITRATION PROVISION PERMEATED WITH UNCONSCIONABILITY
CANNOT BE CURED THROUGH SEVERANCE AND ARE UNENFORCEABLE ........ 13
26
VII. CONCLUSION 14
27
28
-ii-
PLAINTIFF'S OPPOSITION TO DEFENDAN MOTION TO COMPEL ARBITRATION
Document Filed Date
October 12, 2023
Case Filing Date
March 15, 2023
Category
Wrongful Termination Unlimited
For full print and download access, please subscribe at https://www.trellis.law/.
Preview
Dimuth C. Amaratunge, Esq., (State Bar No. 237158) da@serendiblaw.com JFORNIA COUNTY OF SIN BERNAR (OINO Maya L. Serkova, Esq., (State Bar No. 307025) ‘SAN BERNARDINO DISTRICT mserkova@serendiblaw.com SERENDIB LAW FIRM, APC OCT 12 2023 765 The City Drive, Suite 355 Orange, California 92868 Phone: 714-703-1300 BY Cc ) VALERIE URUENA, DEPUTY Fax: 714-703-1304 Attorneys for Oscar Ordaz SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO? 10 11 Oscar Ordaz, an individual, CASE NO. CIV SB 2306529 12 Plaintiff, 13 Assigned for All Purposes To: vs. Honorable Khymberli S. Apaloo 14 15 Brill, Inc., a California Corporation, PLAINTIFF'S MEMORANDUM OF and DOES | to 50 inclusive; and Rise || POINTS AND AUTHORITIES IN 16 OPPOSITION TO DEFENDANTS' Baking Company, a California Corporation, MOTION TO COMPEL ARBITRATION 17 and DOES 1 to 50 inclusive, AND STAY PROCEEDINGS PENDING 18 THE OUTCOME OF ARBITRATION Defendants 19 20 | [(Proposed) Order; Oscar Ordaz Declaration; Maya L. Serkova Declaration; 21 Objection to Erindira Marin’s Declaration are Filed and Served Concurrently 22 Herewith] 23 DATE: October 12, 2023 24 TIME: 8:30 a.m. DEPT: S25-SBJC 25 26 27 28 “ie Table of Contents 1, INTRODUCTION AND SUMMARY OF FACTS... Il. LEGAL STANDARD Il]. THERE IS NO VALID ARBITRATION AGREEMENT THAT GOVERNS PLAINTIFF'S CLAIMS. IV. DEFENDANTS ARE NOT PARTIES, AGENTS, OR THIRD-PARTY BENEFICIARIES TO THE AGREEEMENT THEY SEEK TO ENFORCE 1 Defendants are not parties to the Agreement. .... 10 2. Defendants are not third-party beneficiaries of the Agreement. ..........00:c0e dS) 11 . THE ARBITRATION PROVISIONS CANNOT BE ENFORCED BECAUSE THEY 12 ARE PROCEDURALLY AND SUBSTANTIVELY UNCONSCIONABLE. ......::00:00000000 7 13 A Purported Agreement Has a High Degree of Procedural Unconscionability. 14 1 The Provisions of Exhibit B “Arbitration Memorandum” are procedurally 15 unconscionable adhesion contracts. ..... 9 16 17 2. The Agreement includes substantively unconscionable terms 10 18 B. Even Assuming the Court Concludes There Is A Factual Or Evidentiary Question 19 As To The Existence Of The Arbitration Agreement, It Should Hold An Evidentiary 20 Hearing, After Allowing The Parties An Opportunity To Engage In Discovery, Before 21 Making A Final Ruling. ......0000.0ccccccccccscscesceeseeeneeseeeseeeeeeseecsceesseestsseeanensseneeesteneeeeeaeee 12 22 Cc The FAA Provides A Right To A Jury Trial If The Employee Disputes The 23 Actual Making Of An Arbitration Agreement .......0.0.0....cccccccscceseeeseseseeeseessesesrecsnenetensenes 13 VI. ARBITRATION PROVISION PERMEATED WITH UNCONSCIONABILITY CANNOT BE CURED THROUGH SEVERANCE AND ARE UNENFORCEABLE ........ 13 26 VII. CONCLUSION 14 27 28 -ii- PLAINTIFF'S OPPOSITION TO DEFENDAN MOTION TO COMPEL ARBITRATION