Judge Blaine K. Bowman, Case 37-2023-00029582-CU-OE-NC 2023-10-27 Tentative Ruling

Judge: Blaine K. Bowman, Case: 37-2023-00029582-CU-OE-NC, Date: 2023-10-27 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - October 26, 2023

10/27/2023 10:00:00 AM N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

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Civil - Unlimited Other employment Motion Hearing (Civil) 37-2023-00029582-CU-OE-NC CARREON VS 24 HOUR FITNESS USA, LLC CAUSAL DOCUMENT/DATE FILED: Motion - Other, 08/16/2023

The Motion to Compel Arbitration brought by defendant 24 Hour Fitness USA LLC (the Gym) is GRANTED in part and DENIED in part as follows: --GRANTED as to compelling arbitration of the claims that are not based on sexual assault and/or sexual harassment --DENIED as to compelling arbitration of the claims that are based on sexual assault and/or sexual harassment --DENIED as to the request for a stay of the claims that are based on sexual assault and/or sexual harassment.

The Request for Judicial Notice brought by the Gym is GRANTED pursuant to Evidence Code § 451, et seq.

Background This is an employment discrimination and harassment case. It is alleged that plaintiff Dan Carreon (Plaintiff) was hired to work as a 'Club Attendant' at the Gym at a rate of $17.50 per hour on June 12, 2022. The alleged discrimination and harassment began about six months later and took place in the window of time between January 9, 2023 and March 2, 2023, when Plaintiff resigned from his position.

The allegations appear to mix a few different bases of discrimination and harassing activity – almost all of which came from one particular coworker, namely, Trent Soffel (Mr. Soffel). Mr. Soffel was a 'Sales/Service Manager.' In the earlier part of the period of time when the discrimination and harassment was allegedly taking place, the target of Mr. Soffel's conduct appears to have been racial, as follows: --references to Plaintiff look a lot like men in Mr. Soffel's hometown of Yucca Valley --references to Mr. Soffel not being able to get along with Mexican-Americans --Mr. Soffel showing video of his brothers assaulting and beating a Hispanic man unconscious while exiting a club/bowling alley, accompanied by comments that 'that Mexican was trying to fuck with me, so my brothers did what they needed to do.' --comments that 'whoever messes with me will get to meet my buddies Smith and Wesson,' as well as references to a firearm that Mr. Soffel had received as a gift from one of his brothers Calendar No.: Event ID: TENTATIVE RULINGS

3009049 CASE NUMBER: CASE TITLE: CARREON VS 24 HOUR FITNESS USA, LLC 37-2023-00029582-CU-OE-NC The discriminatory conduct appears to have morphed a bit after this time period to begin to involve a medical disability, as follows: --Plaintiff began to feel pain due to a lump on his arm and went to the emergency room --Plaintiff was put on 'light duty' by a doctor --Mr. Soffel still made Plaintiff wipe down every piece of gym equipment despite being on 'light duty,' thereby causing Plaintiff's arm lump injury to flare up --Plaintiff having to have surgery to remove the bacterial sack that was creating the lump When Plaintiff returned to work after the medical procedure, the racial discrimination apparently continued, as follows: --Mr. Soffel began asking Plaintiff if he 'just crossed the border from Tijuana' --Mr. Soffel referred to Plaintiff as 'Mexican Mr. Clean' --Mr. Soffel saying Plaintiff should have to clean the gym pool 'since he is used to crossing rivers' Thereafter, a certain amount of sexual discrimination began to take place, as follows: --Mr. Soffel mimicked gestures of oral sex and said that a gym member was going to do that to Plaintiff --Mr. Soffel made fun of Plaintiff's genitals in front of others --Mr. Soffel referred to a gym member on her way out by saying, 'I bet her pussy looks like hamburger meat' --Mr. Soffel grabbed the chest area of Plaintiff (and another coworker in sales and service) and squeezing and twisting their chests --Mr. Soffel slapped Plaintiff intensely on the back Plaintiff is now suing for: (1) discrimination in violation of the Fair Employment and Housing Act (FEHA) (2) harassment in violation of the FEHA (3) failure to provide reasonable accommodation (4) intentional infliction of emotional distress Merits of Motion The Gym is moving to compel arbitration on grounds that Plaintiff signed an arbitration clause as part of his employment. That arbitration agreement is governed by the Federal Arbitration Act (FAA). Plaintiff makes two chief arguments against arbitration: (1) that arbitration agreements are void under California Labor Code § 432.6 if they are required 'as a condition of employment,' and (2) that the recently-enacted Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA) exempts claims of 'sexual assault' and 'sexual harassment' from the arbitration mandate of the Federal Arbitration Act, which is to stay that arbitration clauses governed by the FAA are not enforceable to the extent that the cover sexual assault and/or sexual harassment.

As to the first argument, the Gym provides persuasive authority for the proposition that California Labor Code § 432.6 is preempted by the Federal Arbitration Act. (See Chamber of Commerce v. Bonta (9th Cir. 2023) 62 F.4th 473.) As such, Plaintiff's first argument lacks merit.

As to the second argument, the issue is more nuanced – in no small part due to the manner in which Plaintiff has drafted his claims. Specifically, though Plaintiff's factual recitation identifies a number of different bases for violations of the FEHA – for example, racial discrimination, discrimination on the basis of a medical condition, and discrimination on the basis of sex – all of these various grounds are combined into one single cause of action. The Gym's argument is that only the sexual assault and sexual harassment claims are exempt from the FAA such that they cannot be compelled to arbitration. Plaintiff's response is that the statute exempting claims of sexual harassment and sexual assault applies to an entire case – not just to the claims of sexual harassment and sexual assault. For this proposition, Plaintiff Calendar No.: Event ID: TENTATIVE RULINGS

3009049 CASE NUMBER: CASE TITLE: CARREON VS 24 HOUR FITNESS USA, LLC 37-2023-00029582-CU-OE-NC cites out-of-state, trial-court-level authority: Johnson v. Everyrealm, Inc. (S.D.N.Y. Feb. 24, 2023) 2023 WL 221617. At *18. That specific citation offers the following: With the ordinary meaning of 'case' in mind, the text of § 402(a) makes clear that its invalidation of an arbitration agreement extends to the entirety of the case relating to the sexual harassment dispute, not merely the discrete claims in that case that themselves either allege such harassment or relate to a sexual harassment dispute (for example, a claim of unlawful retaliation for a report of sexual harassment). Id. This authority is not binding on this Court. But, even if it were, this Court notes a certain linkage between, strictly, a claim for 'sexual harassment,' and, correspondingly, the example given by the Johnson court of 'unlawful retaliation for a report of sexual harassment' (emphasis added). Such an interpretation allows for claims that are conceptually related to the underlying sexual harassment or discrimination to still be encompassed within the exception carved-out by the recently-passed EFAA.

What Plaintiff is asking to the Court to do in this case is expand the exception of the EFAA (which is generally targeted toward sexually-based claims) to serve as a 'catch-all' that can exempt any other basis for a claim of discrimination and/or harassment – such as those based upon race or a medical disability.

Such an interpretation breeds a likelihood of a certain amount of abuse of what appears to have been the original intent of the EFAA. In other words, plaintiffs who otherwise have stronger claims based upon racial discrimination or discrimination due to a medical disability (or any other non-sex-based ground for discrimination and/or harassment) may be incentivized to bring a weak, colorable, or just-better-than-frivolous claim of sexual harassment or discrimination in order to envelope and protect all of their other – more meritorious claims – from the strictures of arbitration. While this Court does not see any reason to abrogate or contrast against the decision in Johnson, and might be inclined to apply the rationale of Johnson to attendant or derivative claims that are all predicated on an underlying claim of sex-based discrimination or harassment, allowing that exception to swallow all claims made within a case, however unrelated, is a stretch too far. Accordingly, this Court finds it appropriate to parse the claims and apply the arbitration agreement and the FAA to those claims that are not based on sexual discrimination or harassment.

The Gym makes a further argument that there are no claims of sexual discrimination or harassment here to parse. The Gym's argument in this regard is predicated on a concept that, to be actionable, harassment must be 'severe and pervasive.' The Court finds this argument unpersuasive when funneled through the lens of the issue at hand: whether or not the EFAA applies. The Gym's argument that the allegations are insufficient to state a claim for sexual harassment because the harassment was not sufficiently 'severe and pervasive' is an issue of the merit of the underlying claim, not the nature of the claim. The Gym may be able to win a demurrer on this issue if, indeed, the allegations fail to state sufficient facts that constitute a claim of sexual harassment and/or sexual abuse. But, for purposes of determining whether to compel arbitration of the claims, it is sufficient that the claim being asserted is one for sexual harassment and/or sexual abuse. In other words, if claims of sexual harassment and/or sexual abuse are exempt from the FAA, then it is not for an arbitrator to decide whether or not the allegations are sufficient.

Finally, the Gym requests that if this Court orders arbitration of the non-sex-based claims, a stay be imposed on the sex-based-claims that remain to be litigated (as opposed to arbitrated). The Court rejects that request. Congress has seen fit to exempt claims of sexual abuse and/or harassment in a statute that is expressly named the 'Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.' It would appear that Congress saw fit to give some priority and/or special treatment to sex-based claims of sexual assault and/or sexual discrimination in that they cannot be waylaid by common contract-based efforts to force a victim of such conduct into private arbitration proceedings. Delaying the prosecution of sex-based discrimination and/or assault claims while other claims are litigated does not appear to be aligned with the intent of the statute. While a court-imposed stay can be issued via an exercise of this Court's inherent authority to control the litigation before it, this Calendar No.: Event ID: TENTATIVE RULINGS

3009049 CASE NUMBER: CASE TITLE: CARREON VS 24 HOUR FITNESS USA, LLC 37-2023-00029582-CU-OE-NC Court simply finds no need to do so in this case.

To the extent that the Gym raises concerns of 'conflicting results' if the non-sex-based claims in this case are prosecuted via arbitration while the sex-based claims proceed in this Court, it appears that Plaintiff has already implicitly agreed (by the act of filing this litigation in state court) to waive his contractual right to arbitrate. Thus, should the Gym have a genuine concern about conflicting results or wish to avoid duplicative litigation in different forums, the Gym appears to 'hold the keys' to avoiding such risk by also waiving its contractual right to arbitrate the non-sex-based claims and allow them to proceed in this Court together with the sex-based claims. That option, which is within the Gym's grasp, would eliminate any concerns of 'conflicting results.' As the Gym has it within its power to avoid 'conflicting results,' this Court sees no need to exercise judicial discretion to stay a case when the party raising the concern has the power to avoid the concern being raised.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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