On June 06, 2023 a
Motion-Secondary
was filed
involving a dispute between
Gonzalez, Gonzalo,
and
Demerrit, Rob,
Does 1 To 100, Inclusive,
Nelson, Scott,
Sierra West Finish, Inc.,
Tag Employer Services, Llc,
for Wrongful Termination Unlimited
in the District Court of San Bernardino County.
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" QRHGHNAL
"
l Jason H. Borchers, Bar No. 199120
jborchers@littler.com r. I
L P, :3
2 Samuel O. Munson. Bar No. 333317 r'E'RDOR COUR* C‘ C&ggl-‘N-g“
smunson@littler.com C&MW'SVBOERDTSTRCI
-
3 LITTLER MENDELSON. P.C.
5200 North Palm Avenue SEP O 6 2023
4 Suite 302
5
6
Fresno. California 93704.2225
Telephone:
Fax N0.:
559.244.7500
559.244.7525
BY fl
AN‘rHONY r,
5m INEZ. EPUTY
Attorneys for Defendant
7 SIERRA WEST FINISH. INC.
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
”a
HXV
9
COUNTY OF SAN BERNARDINO a;
10
1 1
GONZALO GONZALEZ, Case No. CIVSBZ312883
12
Plaintiff. REPLY TO PLAINTIFF GONZALO
13 GONZALEZ’S OPPOSITION TO
v'
DEFENDANTS SIERRA WEST FINISH,
14
SIERRA WEST FINISH, INC, TAG
INC’S AND SCOTT NELSON’S
15 EMPLOYER SERVICES, LLC‘ ROB MOTION TO COMPEL ARBITRATION
DEMERRIT. SCOTT NELSON. and DOES I TO
16 100. inclusive. ASSIGNED FOR ALL PURPOSES TO
JUDGE WILFRED J. SCHNEIDER. JR. IN
17 Defendants. DEPT- S32
18 Date: September 13. 2023
Time: 8:30 a.m.
19 Dept: S32
20 Trial Date: TBD
Complaint Filed: June 6. 2023
21
Defendants Sierra West Finish. Inc. and Scott Nelson hereby submit their Reply to Plaintiff
22
Gonzalo Gonzalez‘s Opposition to Defendants Motion to Compel Arbitration. Separately. this
23
Reply is supported by Defendants‘ Request for Judicial Notice and Response t0 Plaintiff‘s
24
Evidentiary Objections.
25
I. INTRODUCTION
26
In his effort t0 avoid mandatory arbitration. Plaintiff seeks to rewrite long established
27
contract law. arguing variously that he should not be compelled to arbitrate because “I was never
28
WM MENDELSON
5200 N VM W ‘m Anunul
p cl 488836534702 2 / 110016—1002
I
REPLY TO PLAINTIFF GONZALO GONZALEZ’S OPPOSITION TO DEFENDANTS SIERRA WEST FINISH,
TNC.’S AND SCOTT NELSON’S MOTION TO COMPEL ARBITRATION
given the opportunity to review any of the documents before signing...” and “I do not recall signing
the arbitration agreement—despite the agreement representing my true signature." (Gonzalez Dec. 11
5 (emphasis added).) Nowhere in his declaration, however. does Plaintiffdispute that he actually
OMAWN signed the agreement. More importantly, California law is exceedingly clear that Plaintiffis bound
to the agreement regardless of whether or not he read it. understood it. 0r was required to sign it as a
mandatory condition of employment.
Furthermore, Plaintiff‘s assertions that the arbitration agreement is unconscionable lack
merit. ln fact, all of Plaintiff‘s arguments as to why the agreement is purportedly substantively
unconscionable have been rejected time and again by the courts 0r simply misrepresent the plain
10 language of the arbitration agreement. For example, although Plaintiff alleges the agreement is
ll “unconscionable because he was not provided with a copy 0f AAA arbitration rules with the
12 agreement". this argument has been flatly rejected by the California Supreme Court. With respect to
l3 his argument that the agreement fails to provide adequate discovery. he misrepresents the express
14 language OfIhe agreement. which says. inter alia, "[t]he parties will have the right to conduct
15 adequate civil discovery" and. although the agreement guarantees two fact witness depositions. it
l6 further allows for additional discovery in the discretion ofthe arbitrator “based upon the
17 circumstances ofa particular case." And, although he claims that the agreement is unlawful because
18 it prohibits PAGA representative claims, Section 2 of the agreement expressly carves out PAGA
19 representative claims from its scope. (Nelson Dec. fl 10. Exhibit B § 2.) Furthermore, although
20 Plaintiffclaims that the agreement provides Defendant with “preference" to file a motion for
21 summary judgment. the reality is the agreement provides for summary judgment motions — for both
22 parties — in accordance with the Federal Rules ofCivil Procedure. which can hardly be considered
23 “unconscionable”. On these and the bases set forth herein, Defendants ask that the Coun grant the
24 motion in its entirety.
25 II. LEGAL ARGUMENT
26 A. PLAINTIFF’S CONTRACT DEFENSES ARE INAPPLICABLE
27 In his opposition. Plaintiff first contends that the contract lacks "mutual assent" because he
28 was "rushed into signing large stacks of documents with an unreasonably short period 0f time and
UTTLER MENDELSON P C 4888<9653-6702 2 / 1 10016—1002
5200 Noun mm hum. 2
5w. 302
hum LA 93704 2225
559 2n Woo
REPLY TO PLAINTIFF GONZALO GONZALEZ‘S OPPOSITION TO DEFENDANTS SIERRA WEST FINISH,
lNC.‘S AND SCOTT NELSON’S MOTION TO COMPEL ARBITRATION
Document Filed Date
September 06, 2023
Case Filing Date
June 06, 2023
Category
Wrongful Termination Unlimited
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" QRHGHNAL " l Jason H. Borchers, Bar No. 199120 jborchers@littler.com r. I L P, :3 2 Samuel O. Munson. Bar No. 333317 r'E'RDOR COUR* C‘ C&ggl-‘N-g“ smunson@littler.com C&MW'SVBOERDTSTRCI - 3 LITTLER MENDELSON. P.C. 5200 North Palm Avenue SEP O 6 2023 4 Suite 302 5 6 Fresno. California 93704.2225 Telephone: Fax N0.: 559.244.7500 559.244.7525 BY fl AN‘rHONY r, 5m INEZ. EPUTY Attorneys for Defendant 7 SIERRA WEST FINISH. INC. 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA ”a HXV 9 COUNTY OF SAN BERNARDINO a; 10 1 1 GONZALO GONZALEZ, Case No. CIVSBZ312883 12 Plaintiff. REPLY TO PLAINTIFF GONZALO 13 GONZALEZ’S OPPOSITION TO v' DEFENDANTS SIERRA WEST FINISH, 14 SIERRA WEST FINISH, INC, TAG INC’S AND SCOTT NELSON’S 15 EMPLOYER SERVICES, LLC‘ ROB MOTION TO COMPEL ARBITRATION DEMERRIT. SCOTT NELSON. and DOES I TO 16 100. inclusive. ASSIGNED FOR ALL PURPOSES TO JUDGE WILFRED J. SCHNEIDER. JR. IN 17 Defendants. DEPT- S32 18 Date: September 13. 2023 Time: 8:30 a.m. 19 Dept: S32 20 Trial Date: TBD Complaint Filed: June 6. 2023 21 Defendants Sierra West Finish. Inc. and Scott Nelson hereby submit their Reply to Plaintiff 22 Gonzalo Gonzalez‘s Opposition to Defendants Motion to Compel Arbitration. Separately. this 23 Reply is supported by Defendants‘ Request for Judicial Notice and Response t0 Plaintiff‘s 24 Evidentiary Objections. 25 I. INTRODUCTION 26 In his effort t0 avoid mandatory arbitration. Plaintiff seeks to rewrite long established 27 contract law. arguing variously that he should not be compelled to arbitrate because “I was never 28 WM MENDELSON 5200 N VM W ‘m Anunul p cl 488836534702 2 / 110016—1002 I REPLY TO PLAINTIFF GONZALO GONZALEZ’S OPPOSITION TO DEFENDANTS SIERRA WEST FINISH, TNC.’S AND SCOTT NELSON’S MOTION TO COMPEL ARBITRATION given the opportunity to review any of the documents before signing...” and “I do not recall signing the arbitration agreement—despite the agreement representing my true signature." (Gonzalez Dec. 11 5 (emphasis added).) Nowhere in his declaration, however. does Plaintiffdispute that he actually OMAWN signed the agreement. More importantly, California law is exceedingly clear that Plaintiffis bound to the agreement regardless of whether or not he read it. understood it. 0r was required to sign it as a mandatory condition of employment. Furthermore, Plaintiff‘s assertions that the arbitration agreement is unconscionable lack merit. ln fact, all of Plaintiff‘s arguments as to why the agreement is purportedly substantively unconscionable have been rejected time and again by the courts 0r simply misrepresent the plain 10 language of the arbitration agreement. For example, although Plaintiff alleges the agreement is ll “unconscionable because he was not provided with a copy 0f AAA arbitration rules with the 12 agreement". this argument has been flatly rejected by the California Supreme Court. With respect to l3 his argument that the agreement fails to provide adequate discovery. he misrepresents the express 14 language OfIhe agreement. which says. inter alia, "[t]he parties will have the right to conduct 15 adequate civil discovery" and. although the agreement guarantees two fact witness depositions. it l6 further allows for additional discovery in the discretion ofthe arbitrator “based upon the 17 circumstances ofa particular case." And, although he claims that the agreement is unlawful because 18 it prohibits PAGA representative claims, Section 2 of the agreement expressly carves out PAGA 19 representative claims from its scope. (Nelson Dec. fl 10. Exhibit B § 2.) Furthermore, although 20 Plaintiffclaims that the agreement provides Defendant with “preference" to file a motion for 21 summary judgment. the reality is the agreement provides for summary judgment motions — for both 22 parties — in accordance with the Federal Rules ofCivil Procedure. which can hardly be considered 23 “unconscionable”. On these and the bases set forth herein, Defendants ask that the Coun grant the 24 motion in its entirety. 25 II. LEGAL ARGUMENT 26 A. PLAINTIFF’S CONTRACT DEFENSES ARE INAPPLICABLE 27 In his opposition. Plaintiff first contends that the contract lacks "mutual assent" because he 28 was "rushed into signing large stacks of documents with an unreasonably short period 0f time and UTTLER MENDELSON P C 4888<9653-6702 2 / 1 10016—1002 5200 Noun mm hum. 2 5w. 302 hum LA 93704 2225 559 2n Woo REPLY TO PLAINTIFF GONZALO GONZALEZ‘S OPPOSITION TO DEFENDANTS SIERRA WEST FINISH, lNC.‘S AND SCOTT NELSON’S MOTION TO COMPEL ARBITRATION