SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES

Transcription

1 SHAW & WEITZ John R. Shaw, Bar # Mark S. Weitz, Bar # Katella Avenue, Ste 228 Los Alamitos, CA Telephone: (562) Facsimile (562) Attorneys for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES MARK A. DRUM, ) CASE NO. BC ) Plaintiff, ) Assigned for All Purposes to: ) Honorable Madeleine Flier, Dept 37 ) vs. ) PLAINTIFF S OPPOSITION TO ) DEFENDANTS MOTIONS TO COMPEL CHICK S SPORTING GOODS, INC.; ) ARBITRATION AND TO STAY AND/OR JAMES M. CHICK; and DOES 1 ) DISMISS THE PROCEEDING; to l00, inclusive, ) MEMORANDUM OF POINTS AND ) AUTHORITIES; AND DECLARATIONS Defendants. ) OF MARK A. DRUM AND JOHN R. SHAW ) Date: July 25, 2002 Time: 9:00 a.m. Dept: 37 [THIS IS AN EXCERPT FROM A LONGER POINTS AND AUTHORITIES FOUND ELSEWHERE IN THE BRIEF BANK S ARBITRATION SECTION. Editor] Plaintiff MARK A. DRUM hereby submits his Opposition to defendants CHICK S SPORTING GOODS, INC. and JAMES M. CHICK s (collectively CHICK s unless otherwise indicated) Motions for an Order Compelling Arbitration and To Stay and/or Dismiss this proceeding. This Opposition is based on numerous grounds recognized in case law indicating defendants Motions should be denied. 1

2 First, and foremost among these reasons, is that plaintiff clearly did not sign any agreement to arbitrate claims he has against the individual defendant, JAMES M. CHICK, who is named in paragraph 2 of plaintiff s Complaint and is alleged to be personally liable for discriminatory retaliation under California Government Code Section 12940(h) for causing plaintiff s termination due to plaintiff s protests about and refusals to terminate or to cut the hours of an employee with Down s Syndrome that plaintiff had hired through the auspices of a community outreach program called Project Independence to do part-time clean up work at the store plaintiff managed. (Para. 4, Complaint) Mr. Chick s personal involvement in this decision is alleged and clearly indicated in paragraphs 5 and 6 of the Complaint. Furthermore, defendants motions are defective in both failing to produce a document signed by plaintiff requiring arbitration of his claims against defendant JAMES M. CHICK, and in the failure to properly authenticate both the company dispute resolution policy attached as Exhibit A to Defendants Motion to Compel and plaintiff s signature by conclusory statements to such effect in a declaration made without apparent personal knowledge by defendants counsel, Larry Borys. Additional grounds supporting this lack of authentication of plaintiff s signature on this documents, and apparent differences in plaintiff s purported signature on other documents forwarded to plaintiff s counsel by defendants prior counsel, are specified in plaintiff s attached declaration and are further discussed below. 2

3 This Opposition will be based upon this pleading, the Memorandum of Points and Authorities attached hereto, the Declaration of MARK A. DRUM, the Declaration of John R. Shaw, the exhibits attached to these documents, and all matters of which the Court may take judicial notice, the papers and records in the Court s file, and upon such other evidence as may be presented at the time of the hearing on this petition. Dated: July 9, 2002 SHAW & WEITZ By: John R. Shaw Attorneys for Plaintiff MARK A. DRUM MEMORANDUM OF POINTS AND AUTHORITIES As to the factors of oppression and surprise, as attested to in plaintiff s attached declaration, Mr. Drum cannot recall either reading or signing any of the employee acknowledgments that have been presented by defendants. He also is not sure which, if any, of these signatures, are actually his because there appear to be material discrepancies between each and because Human Resource Manager Lee Ann Baker has occasionally signed documents in his and other employees names per conversations he has had with her. Even if plaintiff did sign the agreement, he clearly had little choice in signing it and there was clearly an absence of real negotiation since he does even remember reading the dispute resolution policy. The exhibits and declarations attached to Defendants moving papers are themselves insufficient to justify granting a motion to compel arbitration. The authentication of the employee dispute policy alleged to be in force cannot be properly authenticated via a declaration from defendants counsel, a litigation attorney hired by 3

4 an insurance company for purposes of defending this action, whose capacity as such would not impart any personal knowledge of what dispute resolution policy was in effect when it was purportedly signed by plaintiff in l996, nor for that matter what policy is in effect now. Additionally, Mr. Borys surely has no personal knowledge or way of authenticating that the signature on the document his clients present to the Court in their moving papers is actually that of the plaintiff. For the above-stated reasons, plaintiff requests that the Court deny defendants Motions to Compel Arbitration and To Stay This Proceeding, and that defendants be ordered to file an Answer or Demurrer to Plaintiff s in the instant action in this case prior to the scheduled August l6, 2002 Status Conference. Dated: July 10, 2002 Respectfully submitted, SHAW & WEITZ By: John R. Shaw Attorneys for Plaintiff MARK A. DRUM DECLARATION OF MARK A. DRUM I, MARK A. DRUM, declare as follows: 1. I am the plaintiff in the above-entitled action. I have personal knowledge of the foregoing facts and could competently testify about them if called as a witness. 2. I have reviewed the copy of CHICK s Dispute Resolution pages from its Employee Manual that are Exhibit A of Defendants Motion to Compel Arbitration. I do not recall either reading or signing the signature page submitted by defendants, dated 4

5 ", and I am not sure that this is even my signature, though it may be. I have also reviewed a copy of an Acknowledgment Receipt of CHICK s Employee Manual also dated 5-l4-96", sent to my attorney by defendants corporate counsel, Daniel J. Doonan, that was not submitted as part of Exhibit A to defendants Motions. A copy of this Acknowledgment Receipt is attached hereto as part of Exhibit E, and is incorporated herein by reference. I do not recall signing this document and am not sure that this is my signature either. It does not appear to match my purported signature in defendant s Exhibit A in many respects. Also these two signatures do not match my purported signature on the Acknowledgment of Employee Expectations form dated May 3, l999 that was also sent my attorney by Mr. Doonan, which is also attached hereto as part of Exhibit E and is incorporated herein by reference. I also do not recall signing this document. Additionally, on a few occasions when I have forgotten to sign forms for myself, or employees I supervised forgot to sign forms that were forwarded to Human Resources, its Manager Lee Ann Baker called and informed me she would sign them on behalf of myself and other employees. 3. Although I do not have a copy of the company s l996 Employee Manual, I have in my possession a subsequent Employee Manual that I was given by CHICK s with a revised date on it of March 20, Copies of its pages iv and v (Dispute Resolution Policy), and p. 5 (Description of the Handbook) are attached hereto as Exhibit F, and are incorporated herein by reference. I did not sign the Dispute Resolution signature page of the March 20, 2000 Employee Manual. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 10 th day of July 2002, at Los Alamitos, California. MARK A. DRUM 5