Judge: Ashfaq G. Chowdhury, Case: 24GDCV00048, Date: 2024-08-02 Tentative Ruling

Case Number: 24GDCV00048    Hearing Date: August 2, 2024    Dept: E

Hearing Date: 08/02/2024 – 8:30am
Case No: 24GDCV00048
Trial Date: UNSET
Case Name: CRYSTAL QUIJANO, an individual; v. ALL AMERICAN HEALTHCARE SERVICES, INC., a New Jersey corporation; and DOES 1 – 100 inclusive

TENTATIVE RULING ON MOTION TO COMPEL ARBITRATION

Moving Party: Defendant, All American Healthcare Services, Inc. (Defendant or All American)

Responding Party: Plaintiff, Crystal Quijano

Moving Papers: Notice of Motion and Motion

Opposing Papers: Opposition; Bae Declaration

Reply Papers: No Reply

Proof of Service Timely Filed (CRC Rule 3.1300(c)): No
16/21 Court Days Lapsed (CCP 1005(b)): Uncertain
Correct Address (CCP §1013, §1013a, §1013b): Uncertain

RELIEF REQUESTED
Defendant, All American Healthcare Services, Inc., moves for an order compelling arbitration of this dispute. Defendant’s motion is made on the grounds that Plaintiff and Defendant have entered into a valid and enforceable arbitration agreement which applies to the claims alleged in this case.

ANALYSIS
Plaintiff, Crystal Quijano, filed the instant Complaint against Defendant, All American Healthcare Services, Inc., on 1/11/2024.

The Complaint alleges two causes of action for (1) Violation of California Government Code § 12940(j) (Unlawful Harassment), and (2) Violation of California Business & Professions Code §§ 17200, et seq.

Plaintiff alleges that Defendants are a staffing agency that connects healthcare workers with facilities for shifts and that Defendants have employed Plaintiff as a non-exempt, hourly-paid employee from approximately March 2021 to the present. (Compl. ¶ 16.) Plaintiff alleges she  works as an hourly-paid nurse assistant. (Id.) Plaintiff alleges that she was harassed by Defendants based on her sex, gender, and gender identity and expression. (Id. at ¶ 17.) Plaintiff alleges she is a transgender woman and that she uses feminine pronouns and the name “Crystal Quijano.” (Id. at ¶ 18.) Plaintiff alleges that Defendants use her legal name, Orlando Quijano, which she does not use, and that Defendants use masculine pronouns to refer to her. (Id. at ¶¶ 18-19.) Plaintiff alleges she asked Defendants several times to use Plaintiff’s chosen name, Crystal, instead of her legal name, and to address her as a woman, but Defendants refuse. (Id. at ¶ 20.)

Arbitration Agreement
Defendant attaches Exhibit A, which contains the arbitration provision at issue here. In relevant part, the arbitration provision provides:

1. I and All American Healthcare Services, In. (“the Company”) agree to utilize binding individual arbitration to resolve all disputes that might arise out of or be related in any way to my application for employment and/or employment by the Company. Such disputes include, but are not limited to, claims I might bring against the Company for wrongful termination, discrimination, harassment, retaliation, breach of contract, wage and hour violations, and torts such as invasion of privacy, assault and battery, or defamation. Such disputes also include claims that the Company might bring against me such as, for example, theft of money or trade secrets, breach of a confidentiality agreement, or breach of a contract. I and the Company each specifically waive our respective rights to bring such claims against t the other in a court of law and to have a trial by jury.

2. The only exceptions to binding arbitration shall be for claims arising under the National Labor Relations Act which are brought before the National Labor Relations Board, claims for medical and disability benefits or other forms of compensation under the my state of residence (“State” or “MyState”) Workers’ Compensation Act, claims for benefits brought before my State Employment Development Department or similar agency, individual claims for wages brought before the my State Labor Commissioner or similar agency, or other claims that are not subject to arbitration under law, including but not limited to claims for sexual harassment and/or sexual assault brought under state or federal law unless I voluntarily elect to submit such claims to arbitration. Moreover, nothing herein shall prevent me from filing a charge or complaint with the United States Equal Employment Opportunity Commission, the my State Employment Agency, or any local agency that allows me to file an administrative charge or complaint. Once the agency’s proceedings are completed, however, if I wish to pursue the matter further, I understand that I must do so under this Agreement.

(Def. Mot., Ex. A., “Dispute Resolution Agreement,” ¶¶ 1-2.)

Defendant argues that on October 8, 2022, Plaintiff and All American entered into an agreement to arbitrate which explicitly mandates the resolution of all of Plaintiff’s claims.

The Court finds that Defendant’s argument – that all of Plaintiff’s claims are subject to arbitration – is, at the very least, partially unavailing.

Claim for Unlawful Harassment – California Government Code § 12940(j)
As stated in Harris v. TAP Worldwide, LLC:

California law favors enforcement of valid arbitration agreements. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97, 99 Cal.Rptr.2d 745, 6 P.3d 669 (Armendariz ); Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066, 1074, 90 Cal.Rptr.2d 334, 988 P.2d 67.) Because arbitration is a contractual matter, a party who has not agreed to arbitrate a controversy cannot be compelled to do so. (Grey v. American Management Services (2012) 204 Cal.App.4th 803, 808, 139 Cal.Rptr.3d 210; Sparks v. Vista Del Mar Child and Family Services (2012) 207 Cal.App.4th 1511, 1518, 145 Cal.Rptr.3d 318 (Sparks ).) When the material facts are undisputed, we determine the existence of an agreement to arbitrate de novo. (Casas v. Carmax Auto Superstores Cal. LLC (2014) 224 Cal.App.4th 1233, 1235, 169 Cal.Rptr.3d 96 (Casas, hereafter); Sparks, supra, 207 Cal.App.4th at p. 1519, 145 Cal.Rptr.3d 318.) The party seeking arbitration bears the initial burden of demonstrating the existence of an arbitration agreement. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236, 145 Cal.Rptr.3d 514, 282 P.3d 1217 (Pinnacle ); Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972, 64 Cal.Rptr.2d 843, 938 P.2d 903; Sparks, supra, 207 Cal.App.4th at p. 1518, 145 Cal.Rptr.3d 318.) Once the moving party has satisfied its burden, the litigant opposing arbitration must demonstrate grounds which require that the agreement to arbitrate not be enforced. (Pinnacle, supra, 55 Cal.4th at p. 236, 145 Cal.Rptr.3d 514, 282 P.3d 1217; Engalla v. Permanente Medical Group, Inc., supra, 15 Cal.4th at p. 972, 64 Cal.Rptr.2d 843, 938 P.2d 903; Sparks, supra, 207 Cal.App.4th at p. 1518, 145 Cal.Rptr.3d 318.)

(Harris v. TAP Worldwide, LLC (2016) 248 Cal.App.4th 373, 380-81.)

Further, as stated in Vianna v. Doctors’ Management Co.:

“The court should attempt to give effect to the parties' intentions, in light of the usual and ordinary meaning of the contractual language and the circumstances under which the agreement was made.” (Weeks v. Crow (1980) 113 Cal.App.3d 350, 353 [169 Cal.Rptr. 830].) Because California has a “ 'strong public policy in favor of arbitration' ” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9 [10 Cal.Rptr.2d 183, 832 P.2d 899]), “... arbitration agreements should be liberally interpreted, and arbitration should be ordered unless the agreement clearly does not apply to the dispute in question” (Weeks v. Crow, supra, 113 Cal.App.3d at p. 352). “Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration.” (United Transportation Union v. Southern Cal. Rapid Transit Dist. (1992) 7 Cal.App.4th 804, 808 [9 Cal.Rptr.2d 702].)

(Vianna v. Doctors’ Management Co. (1994) 27 Cal.App.4th 1186, 1189.)

Plaintiff does not dispute the existence of the arbitration agreement, nor does she challenge the agreement as procedurally or substantively unconscionable.

Plaintiff argues that the arbitration agreement expressly excludes sexual harassment claims.

The Court finds Plaintiff’s argument availing that the first cause of action for “Violation of California Government Code § 12940(j) (Unlawful Harassment)” is expressly excluded from arbitration because the agreement excludes sexual harassment claims.

Although the first paragraph of the arbitration agreement indicates that harassment claims are subject to arbitration, the second paragraph of the arbitration agreement explicitly excludes sexual harassment claims from arbitration. [“In the construction of the instrument the intention of the parties, is to be pursued, if possible; and when a general and a particular provision are inconsistent, the latter is paramount to the former.” (Harris v. TAP Worldwide, LLC (2016) 248 Cal.App.4th 373, 387.) “Particular expression qualify those which are general.” (Id.)]

Here, Plaintiff’s first cause of action – for violation of California Government Code § 12940(j) – is a claim for sexual harassment as explained in Lyle v. Warner Brothers Television Productions:

With certain exceptions not implicated here, the FEHA makes it an unlawful employment practice for an employer, “because of the ... sex ... of any person, ... to discriminate against the person in compensation or in terms, conditions, or privileges of employment.” (§ 12940, subd. (a).) Likewise, it is an unlawful employment practice for an employer, “because of ... sex, ... to harass an employee.” (§ 12940, subd. (j)(1).) Under the statutory scheme, “ ‘harassment’ because of sex” includes sexual harassment and gender harassment. (§ 12940, subd. (j)(4)(C).) These prohibitions represent a fundamental public policy decision regarding “the need to protect and safeguard the right and opportunity of all persons to seek and hold employment free from discrimination.” (Brown v. Superior Court (1984) 37 Cal.3d 477, 485, 208 Cal.Rptr. 724, 691 P.2d 272; see also Mogilefsky v. Superior Court (1993) 20 Cal.App.4th 1409, 1414, 26 Cal.Rptr.2d 116.)

(Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 277.)

Therefore, at the very least, Plaintiff’s first cause of action is not to be compelled to arbitration because the second paragraph of the arbitration provision explicitly excludes sexual harassment claims from being sent to arbitration.

Second Cause of Action - Violation of California Business & Professions Code §§ 17200, et seq.
As to whether or not Plaintiff’s UCL claim is subject to arbitration, the Court will hear argument.

Plaintiff argues that the Federal Arbitration Act (FAA) and the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA) – two federal pieces of legislation – exclude sexual harassment claims from arbitration.

As a preliminary matter, Plaintiff does not explain how or why these two pieces of federal legislation are legally binding for the instant motion to compel arbitration hearing.

Further, even if this Court assumes that Plaintiff’s argument is true, the explicit language of the arbitration agreement already precludes the sexual harassment claim from going to arbitration in the first place.

Therefore, the issue would be whether or not the UCL claim is barred from arbitration.

Plaintiff’s argument that the UCL claim is barred from arbitration is based on the argument that the UCL claim is wholly predicated on her first cause of action for sexual harassment. Plaintiff cites to Turner v. Tesla, Inc. (N.D. Cal. 2023) 686 F.Supp. 3d 917, 925 to support this argument.

In Turner, five of Plaintiff’s claims stemmed directly from allegations of sexual harassment and were thus not subject to arbitration because the arbitration agreement was unenforceable with respect to these claims. (Turner v. Tesla, Inc. (N.D. Cal. 2023) 686 F.Supp. 3d 917, 926.) However, the United States District Court, N.D. California in Turner also found that two claims (Violation of Labor Code § 6310 and Failure to Provide Wages at Termination) were not on their face within the scope of EFAA; however, because the two claims were substantially related to Turner’s sexual harassment claims and their resolution was intertwined with the resolution of the sexual harassment claims, the Turner court ruled that the EFAA renders the parties’ arbitration agreement unenforceable in the entire case because it involved a plausibly pleaded sexual harassment dispute. (Id. at 921 and 927-28.)

Here, while Plaintiff’s UCL claim appears to be substantially related to Plaintiff’s sexual harassment claim and its resolution intertwined with the resolution of the sexual harassment claim, the problem is that Turner is a federal district court case, which is not binding authority on this Court.

Further, Plaintiff argues that under Kader v. Southern California Medical Center (2024) 99 Cal.App.5th 214, the arbitration agreement is a pre-dispute agreement as required by the EFAA, and because Plaintiff’s Complaint is a sexual harassment dispute, both the FAA and Defendant’s arbitration agreement require that it be excluded from arbitration.

As to Plaintiff’s argument with respect to Kader, the Court does not understand the argument that Plaintiff is attempting to assert. Further, even if Kader is applicable, it does not address UCL claims. Kader appears to focus on what is considered a “dispute” under the EFAA and when a dispute arises; however, Kader does not appear to fully address the issue that we face here with respect to a UCL claim.

TENTATIVE RULING
Defendant’s motion to compel arbitration with respect to the first cause of action in the Complaint is DENIED.

With respect to the second cause of action, the Court will hear argument because the Opposition did not provide legal authority that was directly on point. However, the Court notes that Defendant did not submit a Reply. Therefore, as of now, even though Turner  is not binding, Plaintiff’s argument with respect to Turner appears to be a persuasive manner to handle the UCL claim from a practical standpoint.

Further, as Plaintiff’s Opposition pointed out, there appears to be some service issues with this motion. Under California Rules of Court, Rule 3.1300(c), “Proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.” (Ibid.) Here, Defendant has not filed a proof of service for the moving papers, and any such proof of service would be late. Additionally, since Defendant never filed a proof of service, this Court cannot evaluate whether or not this motion is timely under CCP § 1005(b) because the Court does not know when this motion was served. Further, technically, the Court cannot determine if this motion was served to the proper address; however, the Court notes that Plaintiff opposed this motion. Thus, since Plaintiff opposed the motion, it appears that Plaintiff received Defendant’s motion.

Plaintiff indicates that her Opposition is late due to an internal calendaring error and the problems with the Court’s mandatory e-filing system that were caused by a ransomware attack. “No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.” (CRC, Rule 3.1300(d).) Here, the Court considers Plaintiff’s untimely Opposition.

The Court will hear argument.