Free Brief - District Court of California - California

Case 3:08-cv-02108-JL

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consider andFerguson, it) supra,298F.3d at784.(same)(Id.) According the DavisCourt, to whether employee giventime to consider contract, evenhow muchtime, is irrelevant. an is the or (/d.) Whatmattersis whetheran employee a meaningfulopportunityto negotiate terms has the of the employment bargainor to opt of the bargain altogether.(Id. at 1073.) Here,the circumstances evenmoreprocedurally axe unconscionable Davisor even than IngleI. Unlike the employees both of these in cases, Plaintiffwas givenabsolutely time to no consider ramifications signingthe ArbitrationAgreement.Instead, hadthe Arbitration the of she Agreement foistedon her at a "fast-paced, hectic,hurried" public gathering part of as Defendant's corporate takeover of her employer, gaveno opportunity BESTIMAGE. Defendant for negotiationof the Arbitration Agreement, Plaintiff wasnot given an opportunityto "opt and out" if shewanted stayemployed. to present high degree procedural Suchcircumstances a of unconscionability. Therefore, the

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in 1 3 ArbitrationAgreement this caseshouldbe heldto be procedurally unconscionable and

t 4 unenforceable. l5 t6 l7 l8 t9 20 2l 22 23 24 25 26 27 28
Motion for Declaratoryand Injunctive Relief

2.

The Arbitration Agreement Unconscionable Is Because It Places Unreasonable And Arbitrary Limitations On Discovery,Depriving PlaintiffOf A Fair Opportunity To VindicateHer EmploymentLaw Claims

is for discovery indispensable the vindicationof FEHA claims." (Armendariz, "Adequate are sufficientto at supra,24 Cal.4th 104.) Accordingly,employees entitledto o'discovery their statutory claims.' (Id.at 106.) arbitrate adequately in discovery" beenaddressed a few post-Armendariz has Whatconstitutes "adequate in the one opinionso of which is importantto deciding outcome the instantcase.In Fitz v. NCR (2004),for example, Courtconfronted issuein a case this the Corp., 118Cal.App.4th702 plus to that agreement limited bothparties'discovery two depositions involvingan arbitration a also the to Theagreement required parties exchange of anynumber expertwitnessdepositions. hearing.No other at list of all exhibitsandwitnesses leasttwo weeksprior to the arbitration as by needfor the discovery determined the a was discovery allowedabsent compelling

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incorporated rulesof the AmericanArbitrationAssociation the arbitrator.The agreement

2 (AAA).
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ln Fitz, the employee arguedthat the agreement unfairly and arbitrarily limited his rights to discovery.The employer argued the agreement not unfair because mutuallylimited that was it rights. bothparties'discovery In ruling thatthe arbitration agreement unconscionable, Courtof Appealbegan was the the mutualityargument, writing: by rejecting employer's "ThoughNCR contends the ACT policy'slimits on discovery mutual that arc of because applyto bothparties, curtailment discovery only two they the to doesnot havemutualeffectanddoesnot provideFitz with sufficient depositions the has to already in its discovery vindicateher rights."This is because employer possession case manyof the documents relevant an employment to discrimination witnesses." aswell ashavingin its employmanyof the relevant Court,96 Cal.App.4th 167,I83 (Fitz,supra,118Cal.App.4th 716, citingMercurov. Superior at (2002).) it the TheFitz Courtwent on to distinguish agreement facedfrom the onefacedin did Courtheldthat unlimiteddiscovery not, in andof itself, wherethe Supreme Armendariz, agreement The agreement. Armendariz enforceable arbitration an to serve invalidate otherwise the incorporated rulessetforth in the CalifomiaArbitrationAct (CAA). As the Fitz Court 'rights,remedies, and discovery the the observed, CAA "grantspartiesessentially same court...'." werependingbeforea superior procedures asif the subjectmatterof the arbitration ... incorporated rulesof the the at (Fitz,supra,I 18 Cal.App.4th 718.) By contrast, Fitz agreement nature of the against expedited the to the (AAA), which aredesigned balance needfor discovery wenta stepfurtherandincludedlanguage the arbitration.(Id. at 718,fn 3.) Moreover, employer aboveandbeyondwhatwaspermitted that agreement furtherlimited discovery in its arbitration that (Id.) TheFitz Courtultimatelyconcluded the arbitration undertherulesit incorporated. and disadvantage was at placedthe employee a significant it agreement confronted (Id. unenforceable. at 7 17.)

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and Motion for Declaratory Relief Injunctive

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Fitz is highly instructiveto the instantcase. Justlike Fitz, the Arbitration Agreement in

incorporates AAA rules,therebylimiting Plaintiff s statutory discovery rightsat the 2 this case
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goesa stepfirther in its Arbitration Agreement outset. Moreover,similar to Fitz, Defendant and limits discovery a total of threedepositions.2 to This "three-deposition" limit canbe increased by thearbitrator upona showingof goodcause.Underthetermsof the ArbitrationAgreement, the and limitationon depositions appears applyto bothpercipient expertdepositions. to places Plaintiff at a disadvantage wouldnot she Justlike Fitz, theArbitrationAgreement if experience shewerepennittedto bring her claimsin a courtof law. Eventhoughthe permitsthe taking of threedepositions onemorethan the agreement in Arbitration Agreement it depositions actuallymakes to Fitz - the factthat it applies bothpercipientand expertwitness disputes, "Given the complexityof employment than moredisadvantageous the Fitz agreement.

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witnesses, as of of by t 2 the outcomes which areoftendetermined the testimony multiplepercipient practice, will be the unusual it employment 1 3 well aswritteninformationaboutthe disputed to a will of wherethe deposition two witnesses be suffrcient present case." (Fitz,supra, t 4 instance

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.4th I I 8 Cal.App at 717.) applieswith equalforce to a situationwherean Arbitration Agreement This statement

A t 7 limits Plaintiff to threedepositions includingexpertwitnesses. new publicationof the like that demonstrates disabilitycases Plaintiffsoftenturn on expert Bar 1 8 American Association and DisabilityDiscriminationLaw, Evidence and testimony evidence.(JohnParcy, t 9 witness ABA DisabilityLaw,p. 417.) Another ABA 20 Testimony,2008 Comm.on MentalandPhys.

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to who decided makers of plaintiffs to takethe depositions "the decision publication encourages

or from thepersonnel and or 22 fire theplaintiff, oneor moreline supervisors managers, someone Tort Case(2"ded.) (DanielJ. Rose, Litigating theEmployment department." 23 humanresonrces Exhibit "D," YoungDeclaration, pp.34-35.) (See, Sectiono Practice 24 ABA Tort andInsurance

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zAside applyto otherdiscovery. apparently Rulesof Civil Procedure from this limitation,the Federal Motion for Declaratoryand InjunctiveRelief

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actionsweretakenagainst Here,Plaintiff claimsthat a variety of unlawful employment

loss,shehassustained emotional 2 her andthat,in additionto pecuniary distress.Thus,it is
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reasonable assume both sideswill havea mentalhealthexpert,an employment to that practices

4 expert,andan economist.If Plaintiff wishesto depose theseexperts, thenshewill haveusedup
(See, 5 all of her allotteddepositions, leavingher with no depositions percipient of witnesses. filed herewith.) Giventhe imbalance access witnesses evidence 6 YoungDeclaration, of to and in disadvantage arbitration. 7 notedby Fitz, Plaintiff will be placedat a severe

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Moreover, fact that the arbitrator this case the can,for goodcause, increase number in the

safetyvalve." (Fitz, supra,118Cal.App.4that717.) Evenif the is 9 of depositions an "inadequate in in by "impossibility"standard waspresent that l 0 arbitrator this caseis not constrained the same

1 1 Fitz, Pluntiff must still facethe sameunderlyingrules- the AAA rules- which requirethe
the 1 2 arbitratorto balance needfor additionaldiscoveryagainstthe policy that arbitrationbe and to that 1 3 "expedited."(Id. at7l8, fn. 3.) Moreover,it is speculation conjecture assume without first beingable of showing "good cause" l 4 Plaintiffwill evenbe ableto makethe requisite sufficientdiscovery. l 5 to conduct

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to to doesnot appear appear permitanyform of Finally,the ArbitrationAgreement

refuses permitthe additionaldiscovery.Considering to t 7 judicial reviewin the eventthe arbitrator of l 8 the publicimportance the typesof claimsraisedby Plaintiff sheshouldnot be forcedto

t 9 undergoarbitrationwith the hopethat shehasthe serendipityto draw an arbihatorwilling to
an her to adequate vindicate civil rights. Therefore, agreement discovery 20 permitherto conduct

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discovery shouldbe heldto be ability to conduct suchasthe onethat limits the employee's

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Motion for Declaratoryand InjunctiveRelief

3.

The The Arbitration AgreementIs Not "Mutual" Because The Courts To Vindicate DefendantRemainsAble To Access ThoseClaimsIt Is Most Likely To Bring' While PlaintiffIs SolelyTo Binding Arbitration On ThoseClaims Relegated SheIs Most Likely To Bring

in Although it is entitled "Mutual Agrcementto Arbitrate," the Arbitration Agreement

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this caseis anythingbut mutual whenjuxtaposedwith the AgreementWith Restrictive

2 Covenants waspresented Defendant's that to at employees the same time. (See, Plaintiffs
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pagel, lines 16-22;Christensen Declaration, page1, lines24-27.) Undertheterms Declaration, of the Arbitration Agreement, Defendant'semployees requiredto arbitrateall employmentare related disputes with the exception certainadministrative of actions(e.g.,workers'compensation claims,claimsfor unemployment insurance and benefits, the like.) However,underthetermsof With RestrictiveCovenants, the Agreement remainsfully ableto access Defendant courtsto redress claimsthat its employees solicitedits clients,disclosed tradesecrets, otherwise or proprietary Plaintiff s Declaration, improperly usedthe company's materials.(See, Exhibit"A,"

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paragraph VIII.) 1 0 Agreement With Restrictive Covenants, ll t2 This precise situationwasaddressed Martinezv. MasterProtectionCorp.,ll8 by suedhis employer variousunlawful for 107 Cal.App.4th (2004). ln Martinez,arremployee

practices, in includingnationalorigin discrimination violationof the FEHA. The 1 3 employment l4 l5 between the employermovedto compelarbitrationunderthe termsof a written agreement in parties. Like the Arbitration Agreementin the instantcase,the agreement Martinez required

disputes exceptfor workers'compensation all to t 6 theemployee arbitrate employment-related like the Arbitration insurance benefits.Moreover, t 7 claimsandclaimsfor unemployment to claimsfor Martinez agreement not requirethe employer arbitrate did 1 8 Agreement,the

t 9 "injunctive and/orotherequitablerelief for unfair competitionand/orthe useand/orunauthorized
information..."(Id. at lI2, fn l.) Thetrial court or of 20 disclosure tradesecrets confidential

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motionto compelarbitration. granted employer's the lacked In reversingthe trial court, the Court of Appealheld that arbitrationagreement

but because requiresthe employee not the "it 23 mutuality andwas"substantivelyunconscionable" the at supra,118Cal.App.4th I la.) Significantly, claims." (Martinez, to 24 employer arbitrate it was that 25 Martinez Court rejectedthe employer'sassertion the agreement mutual because writing: disputes, to employment-related bothparties arbitrate 26 required

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Motion for Declaratoryand Relief Injunctive

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