On September 18, 2020 a
Motion,Ex Parte
was filed
involving a dispute between
Guadalupe Farias Ruiz,
and
Rizolopez Foods Inc,
for Other Employment: Unlimited
in the District Court of Stanislaus County.
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1 KAUFMAN DOLOWICH & VOLUCK, LLP Electronically Filed
Barbara L. Harris Chiang (SBN 206892) 10/26/2020 11:59 AM
2 Marcus Dong (SBN 251723)
425 California Street, Suite 2100 Superior Court of California
3 San Francisco, California 94104 County of Stanislaus
Telephone: (415) 926-7600 Clerk of the Court
4 Facsimile: (415) 926-7601 By: Mouang Saechao, Deputy
5 $435 PAID
Attorneys for Defendant $30 NOT PAID
RIZO-LOPEZ FOODS, INC.
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF STANISLAUS
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11 GUADALUPE FARIAS RUIZ, an Case No.: CV-20-004053
individual, on behalf of herself and other Judge: Hon. Stacy Speiller
12 persons similarly situated, Dept. 22
13 Plaintiff, Action Filed: September 18, 2020
14 v. DEFENDANT RIZO-LOPEZ FOODS, INC.’S
NOTICE OF PETITION TO COMPEL
15 INDIVIDUAL ARBITRATION; DISMISSAL
RIZO-LOPEZ FOODS, INC. D/B/A DON OF PLAINTIFF’S CLASS CLAIMS; AND
16 FRANCISCO CHEESE, a California STAY OF PLAINTIFF’S PAGA CLAIM
corporation; and DOES 1 through 50,
17 inclusive, [Filed concurrently with Memorandum of Points
and Authorities; Declaration of Maria Villa;
18 Defendants. Declaration of Marcus Dong; [Proposed] Order]
19 Date: December 3, 2020
Time: 8:30 a.m.
20 Dept. 22
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NOTICE OF MOTION
1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE that on December 3, 2020 at 8:30 a.m., or as soon thereafter as
3 the matter may be heard, in Department 22 of the above-captioned court located at 801 10th Street,
4 Modesto, California 95354, before the Hon. Stacy Speiller, Defendant Rizo-Lopez Foods, Inc. will
5 and hereby does petition the Court for an order: (1) compelling binding arbitration of Plaintiff’s
6 individual claims in the Complaint pursuant to California Code of Civil Procedure § 1281.2; (2)
7 dismissing Plaintiff’s class action claims in the Complaint; and (3) staying Plaintiff’s PAGA claim
8 pursuant to Cal. Code of Civ. Proc. § 1281.4.
9 Under Cal. Code of Civ. Proc. § 1281.2, binding arbitration is mandatory because: (a)
10 Plaintiff and Rizo-Lopez entered into a valid, written Arbitration Agreement
11 (“Agreement”) where they agreed that “any claims arising out of or related to [Plaintiff’s]
12 employment that could be filed in a court of law, including but not limited to, . . . failure
13 to pay wages . . . will be submitted to final and binding arbitration”; and (b) Plaintiff
14 alleges multiple Labor Code violations, including alleged failure to pay wages, claims
15 which fall under the scope of the Agreement.
16 Further, in the Agreement, Plaintiff and Rizo-Lopez mutually agreed to “waive any right
17 to a class or collection action (‘Class Action Waiver’),” a type of waiver which California
18 courts have enforced. (See Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th
19 348, 365 [where plaintiff filed wage and hour class action and court concluded waiver of
20 class action wage and hour actions enforceable in arbitration agreement].)
21 The Agreement is enforceable and not unconscionable because: (a) there was no surprise
22 as to its contents when Plaintiff voluntarily executed it; (b) the Agreement applies
23 mutually to Plaintiff and Rizo-Lopez; (c) the Agreement does not limit discovery; (d) the
24 Agreement does not limit Plaintiff’s potential remedies; (e) the Agreement does not give
25 Rizo-Lopez any extra benefits compared with court; (f) the Agreement requires a neutral
26 arbitrator; and (g) Rizo-Lopez must pay costs unique to arbitration.
27 Under Cal. Code of Civ. Proc. § 1281.4, if a Court orders Plaintiff’s individual claims to
28 binding arbitration, a stay of Plaintiff’s PAGA court claim is mandatory.
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NOTICE OF MOTION
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2 This Petition is based upon this Notice of Petition and all of the documents filed concurrently
3 herewith: the Memorandum of Points and Authorities; the Declaration of Maria Villa; Declaration of
4 Marcus Dong; and the [Proposed] Order. This Petition is also based on the pleadings and other papers
5 on file in this matter, and such evidence and argument, oral and documentary, as may be adduced on
6 the hearing on the Petition.
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8 Dated: October 26, 2020 KAUFMAN DOLOWICH & VOLUCK, LLP
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Barbara L. Harris Chiang
12 Marcus Dong
Attorneys for Defendant
13 RIZO-LOPEZ FOODS, INC.
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NOTICE OF MOTION
Document Filed Date
December 03, 2020
Case Filing Date
September 18, 2020
Category
Other Employment: Unlimited
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1 KAUFMAN DOLOWICH & VOLUCK, LLP Electronically Filed Barbara L. Harris Chiang (SBN 206892) 10/26/2020 11:59 AM 2 Marcus Dong (SBN 251723) 425 California Street, Suite 2100 Superior Court of California 3 San Francisco, California 94104 County of Stanislaus Telephone: (415) 926-7600 Clerk of the Court 4 Facsimile: (415) 926-7601 By: Mouang Saechao, Deputy 5 $435 PAID Attorneys for Defendant $30 NOT PAID RIZO-LOPEZ FOODS, INC. 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF STANISLAUS 10 11 GUADALUPE FARIAS RUIZ, an Case No.: CV-20-004053 individual, on behalf of herself and other Judge: Hon. Stacy Speiller 12 persons similarly situated, Dept. 22 13 Plaintiff, Action Filed: September 18, 2020 14 v. DEFENDANT RIZO-LOPEZ FOODS, INC.’S NOTICE OF PETITION TO COMPEL 15 INDIVIDUAL ARBITRATION; DISMISSAL RIZO-LOPEZ FOODS, INC. D/B/A DON OF PLAINTIFF’S CLASS CLAIMS; AND 16 FRANCISCO CHEESE, a California STAY OF PLAINTIFF’S PAGA CLAIM corporation; and DOES 1 through 50, 17 inclusive, [Filed concurrently with Memorandum of Points and Authorities; Declaration of Maria Villa; 18 Defendants. Declaration of Marcus Dong; [Proposed] Order] 19 Date: December 3, 2020 Time: 8:30 a.m. 20 Dept. 22 21 22 23 24 25 26 27 28 -1- NOTICE OF MOTION 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that on December 3, 2020 at 8:30 a.m., or as soon thereafter as 3 the matter may be heard, in Department 22 of the above-captioned court located at 801 10th Street, 4 Modesto, California 95354, before the Hon. Stacy Speiller, Defendant Rizo-Lopez Foods, Inc. will 5 and hereby does petition the Court for an order: (1) compelling binding arbitration of Plaintiff’s 6 individual claims in the Complaint pursuant to California Code of Civil Procedure § 1281.2; (2) 7 dismissing Plaintiff’s class action claims in the Complaint; and (3) staying Plaintiff’s PAGA claim 8 pursuant to Cal. Code of Civ. Proc. § 1281.4. 9 Under Cal. Code of Civ. Proc. § 1281.2, binding arbitration is mandatory because: (a) 10 Plaintiff and Rizo-Lopez entered into a valid, written Arbitration Agreement 11 (“Agreement”) where they agreed that “any claims arising out of or related to [Plaintiff’s] 12 employment that could be filed in a court of law, including but not limited to, . . . failure 13 to pay wages . . . will be submitted to final and binding arbitration”; and (b) Plaintiff 14 alleges multiple Labor Code violations, including alleged failure to pay wages, claims 15 which fall under the scope of the Agreement. 16 Further, in the Agreement, Plaintiff and Rizo-Lopez mutually agreed to “waive any right 17 to a class or collection action (‘Class Action Waiver’),” a type of waiver which California 18 courts have enforced. (See Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 19 348, 365 [where plaintiff filed wage and hour class action and court concluded waiver of 20 class action wage and hour actions enforceable in arbitration agreement].) 21 The Agreement is enforceable and not unconscionable because: (a) there was no surprise 22 as to its contents when Plaintiff voluntarily executed it; (b) the Agreement applies 23 mutually to Plaintiff and Rizo-Lopez; (c) the Agreement does not limit discovery; (d) the 24 Agreement does not limit Plaintiff’s potential remedies; (e) the Agreement does not give 25 Rizo-Lopez any extra benefits compared with court; (f) the Agreement requires a neutral 26 arbitrator; and (g) Rizo-Lopez must pay costs unique to arbitration. 27 Under Cal. Code of Civ. Proc. § 1281.4, if a Court orders Plaintiff’s individual claims to 28 binding arbitration, a stay of Plaintiff’s PAGA court claim is mandatory. -2- NOTICE OF MOTION 1 2 This Petition is based upon this Notice of Petition and all of the documents filed concurrently 3 herewith: the Memorandum of Points and Authorities; the Declaration of Maria Villa; Declaration of 4 Marcus Dong; and the [Proposed] Order. This Petition is also based on the pleadings and other papers 5 on file in this matter, and such evidence and argument, oral and documentary, as may be adduced on 6 the hearing on the Petition. 7 8 Dated: October 26, 2020 KAUFMAN DOLOWICH & VOLUCK, LLP 9 10 11 Barbara L. Harris Chiang 12 Marcus Dong Attorneys for Defendant 13 RIZO-LOPEZ FOODS, INC. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- NOTICE OF MOTION