Judge Bruce G. Iwasaki, Case 22STCV33804 2023-04-25 Tentative Ruling

Moving Party: Defendants Global Freight Solutions Inc., Barret Business Services, Inc., Miguel Mayanes, Candelario Camacho, and Jackie Temple

Tentative Ruling: The Motion to Compel Arbitration is granted in part as to the second, fourth, fifth, and sixth causes of action and denied in part as to the first and third causes of action. The action is stayed pending arbitration.

This is an action for sexual harassment and violations of the Fair Employment and Housing Act (FEHA) and Labor Code. Plaintiff Sandra M. Doe initiated this action against Defendants Global Freight Solutions Inc. (“GFS”), Barret Business Services, Inc. (“BBSI”), Miguel Mayanes (“Mayanes”), Candelario Camacho (“Camacho”), and Jackie Temple (“Temple”) (collectively, “Defendants”), alleging the following causes of action: (1) sexual harassment; (2) sexual discrimination; (3) failure to prevent harassment and discrimination; (4) disability discrimination; (5) denial of equal pay; and (6) wrongful termination in violation of public policy.

On December 12, 2022, BBSI filed its answer to the Complaint. Thereafter, on January 4, 2023, GFS filed its answer to the Complaint. By March 20, 2023, the individual defendants filed their answers to the Complaint.

On April 3, 2023, the Defendants filed a joint motion to compel arbitration pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. § 2, and Code of Civil Procedure §§ 1281.2 and 1281.4 on the ground that Plaintiff entered into a valid and enforceable arbitration agreement in connection with her employment with GFS. Defendants further request the current action to be dismissed or stayed during the pendency of arbitration.

Defendants’ objections to various portions of Plaintiff’s declaration are overruled in their entirety. Defendants’ objection to a portion of the Declaration of Viridiana Aceves is sustained on grounds of lack of foundation.

California law incorporates many of the basic policy objectives contained in the Federal Arbitration Act, including a presumption in favor of arbitrability. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 971-972.) The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, the party opposing the petition then bears the burden of proving by a preponderance of the evidence any fact necessary to demonstrate that there should be no enforcement of the agreement, and the trial court sits as a trier of fact to reach a final determination on the issue. (Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 413.) The Court is empowered by Code of Civil Procedure section 1281.2 to compel parties to arbitrate disputes pursuant to an agreement to do so.

As a preliminary matter, Plaintiff argues that the instant motion should be denied because it was not properly noticed pursuant to Code of Civil Procedure § 1005 and insists that, in order for this matter to be heard on April 25, 2023, she should have been served with the motion on March 31, 2023. (Opposition at pg. 12.) The proof of service included with the moving papers; it indicates that Plaintiff’s counsel was served by personal service on April 3, 2023. As provided by Code of Civil Procedure § 1005, a motion must generally be served sixteen court days prior to the hearing. The sixteenth court day prior to April 25, 2023 was April 3, 2023. The motion was timely served.

Defendants argue that Plaintiff’s opposition is defective for two reasons. First, they assert that the opposition does not comport with the page limit prescribed by California Rules of Court, Rule 3.1113(d). (Reply at pg. 1.) Generally, a moving or opposing memorandum of points and authorities should not exceed fifteen pages, unless an application is made ex parte for permission to file a longer memorandum. (Cal. Rules of Court, rule 3.1113(d), (e).) In this regard, it is noted that the memorandum is nineteen pages long. As a result, it is within the Court’s discretion whether the excessive pages should be considered. (Id., Rules 3.1300 and 3.1113(g).) Because Defendants were able to address each of Plaintiff’s arguments within their reply, they have not been prejudiced by Plaintiff’s failure to abide by California Rules of Court, Rule 3.1113(d). Therefore, the Court shall consider Plaintiff’s opposition.

Second, Defendants argue that Plaintiff’s declaration is defective because, as a document written in a foreign language, Plaintiff was obligated to submit a certified translation by a qualified interpreter of her declaration. (Cal. Rules of Court, Rule 3.1110(g).) While Plaintiff did not strictly comply with this rule, Defendants’ reply addresses the statements made in her declaration. Also, there is no suggestion that Plaintiff’s statements were improperly translated. As a result, Plaintiff’s declaration shall be considered in full. The Court admonishes Plaintiff’s counsel to abide by the California Rules of Court in future filings.

Under the California law, arbitration agreements are valid, irrevocable, and enforceable, except on such grounds that exist at law or equity for voiding a contract. (Winter v. Window Fashions Professions, Inc. (2008) 166 Cal.App.4th 943, 947.) The party moving to compel arbitration must establish the existence of a written arbitration agreement between the parties. (Code Civ. Proc., § 1281.2.) In ruling on a motion to compel arbitration, the court must first determine whether the parties actually agreed to arbitrate the dispute, and general principles of California contract law help guide the court in making this determination. (Mendez v. Mid-Wilshire Health Care Center (2013) 220 Cal.App.4th 534, 541.)

Here, Defendants submit evidence that Plaintiff signed three separate arbitration agreements during the course of her employment with GFS with the most recent agreement being signed on April 19, 2019. (Temple Decl. ¶ 13, Exh. B; Dryjanski Decl. ¶ 4, Exh. E; see also Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218 [“With respect to the moving party's burden to provide evidence of the existence of an agreement to arbitrate, it is generally sufficient for that party to present a copy of the contract to the court.”].)

I and the Company agree to utilize binding individual arbitration as the sole and exclusive means to resolve all disputes that may arise out of or be related in any way to my employment. I and the Company each specifically waive and relinquish our respective rights to bring a claim against the other in a court of law and to have a trial by jury. Both I and the Company agree that any claim, dispute, and/or controversy that I may have against the Company (or its owners, directors, officers, managers, employees, or agents), or the Company may have against me, shall be submitted to and determined exclusively by binding arbitration under the Federal Arbitration Act ("FAA"), in conformity with the procedures of the California Arbitration Act (Cal. Code Civ. Proc. sec 1280 et seq., including section 1283.05 and all of the Act's other mandatory and permissive rights to discovery). . . .

Based on this evidence, the Court finds that Defendants have met their initial burden and that the 2019 arbitration agreement is the operative agreement. Furthermore, as indicated in the 2019 agreement, the FAA is the governing law. (Ibid.) Even though the agreements are signed by a “Maria Mejia” or “Maria del Carmen Mejia,” Defendants have also presented evidence that Plaintiff was known by several names and also referred to as Sandra. (Temple Decl. ¶¶ 6-10, Exh. A; Lopez Decl. ¶¶ 2-10.) Despite the name differences, Plaintiff does not deny signing any of the arbitration agreements that were presented to her during her years of employment. (See Doe Decl. ¶¶ 8-10.) Instead, Plaintiff argues that the arbitration agreement is unenforceable for the following reasons: (1) it is barred by The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (9 U.S.C. §§ 401, 402) (Opposition at pp. 19-22); (2) the arbitration agreement is unconscionable (Opposition at pp. 12-19, 22-25); (3) the defendant other than GFS lack the ability to enforce the 2019 arbitration agreement (Opposition at pg. 25); and (4) Defendants waived their right to arbitration (Opposition at pg. 26). (Baker v. Italian Maple Holdings, LLC (2017) 13 Cal.App.5th 1152, 1160 [“Once such a document is presented to the court, the burden shifts to the party opposing the motion to compel, who may present any challenges to the enforcement of the agreement and evidence in support of those challenges.”].) The Court shall address these arguments in turn. Also, while the Plaintiff does not squarely raise the argument that the 2019 arbitration agreement is unenforceable due to the lack of mutual assent, the Court will address this issue first.

While not directly argued, Plaintiff stresses that the 2019 arbitration agreement was provided only in English and that she does not understand English. (Opposition at pg. 23; Doe Decl. ¶ 2.) This raises whether, when Plaintiff signed the 2019 arbitration agreement, there was a lack of mutual assent.

General principles of contract law determine whether the parties have entered a binding agreement to arbitrate. (Avery v. Integrated Healthcare Holdings, Inc. (2013) 218 Cal.App.4th 50, 60; Chan v. Drexel Burnham Lambert, Inc. (1986) 178 Cal.App.3d 632, 640–641.) This includes the principle that the basic goal of contract interpretation is to give effect to the parties’ mutual intent at the time of contract. (Mitri v. Arnel Management Co. (2007) 157 Cal.App.4th 1164, 1170, quotations and citations omitted.) Contract law also requires the parties agree to the same thing in the same sense. (Civ. Code, §§ 1550, 1565, 1580; Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793.)

Plaintiff declares that when she signed the various arbitration agreements, the contents of these documents were never explained to her. (Doe Decl. ¶¶ 8-10.) Defendants claim that it is GFS’s custom and practice that “[e]mployees are permitted time to review the employment documents before providing their signatures.” (Temple Decl. ¶ 5.) Defendants identify no formal policy to that effect. Moreover, GFS identifies no custom and practice of accommodating employees who do not comprehend English. But this lack of showing is not dispositive. In Caballero v. Premier Care Simi Valley (2021) 69 Cal. App. 5th 512, the Court of Appeal defined the duties of employer and employee when an English language arbitration agreement is presented to a prospective employee who is not proficient in English. The court stated: “Generally, a party may not avoid enforcement of an arbitration provision because the party has limited proficiency in the English language.” (Id. at 518.) Rather, “it is incumbent upon the party [who does not speak or understand English] to have it read or explained to him or her.” (Id. at pg. 519.) In such circumstances, the appellate court reasoned that the initial burden is on the employee to request an accommodation in order to comprehend the arbitration agreement before signing it, and only then does the burden shift to the employer to explain the agreement’s contents. (Ibid.) Because in that case no such request was made, the court found that the plaintiff did not provide sufficient evidence to show that he met this initial burden. (Ibid.) In this case, Plaintiff’s declaration lacks any showing that she requested a translated version of the 2019 arbitration agreement or asked that the document be explained to her by one of GFS’ human resources representatives.

Accordingly, the Court finds that Plaintiff assented to the terms of the 2019 arbitration agreement.

E. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“The Act”)

In anticipation of Plaintiff’s argument that arbitration agreement is against public policy pursuant to the Act, Defendants argue that, even though Plaintiff raises claims of sexual harassment, the alleged incidents occurred prior to the passage of the Act. (Motion at pp. 9-11.)

Pursuant to the Act, it states: “at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.” (9 U.S.C. § 402, subd. (a).)

Defendants argue that Plaintiff’s claims should still be compelled into arbitration because the alleged sexual harassment occurred before the Act was enacted on March 3, 2022. In support of this argument, Defendants rely on various federal cases that have interpreted the Act. (Reply at pg. 3, relying on Walters v. Starbucks Corp. (S.D.N.Y. Aug. 25, 2022) 2022 WL 3684901 at *2-3 and Steinberg v. Capgemini America, Inc. (E.D.Penn. Aug. 16, 2022) 2022 WL 3371323 at *2-3.) It is noted that these decisions rely on a marginal note to the Act, which states “[t]his Act, and the amendments made by this Act, shall apply with respect to any dispute or claim that arises or accrues on or after the date of enactment of this Act.” (Pub.L. No. 117-90, § 3, reprinted in notes foll. 9 U.S.C. § 401.)

However, as acknowledged in Murrey v. Superior Court (2023) 87 Cal.App.5th 1223, there is disagreement among the courts as to whether the application of the aforementioned marginal note is correct. Others have interpreted the marginal note “as merely clarifying that the Act is inapplicable to claims already filed in arbitration.” (Laura Farley, Ending Forced Arbitration: Understanding the New Federal Law That Prohibits Mandatory Arbitration in Matters of Sexual Assault or Harassment (2022) 79 Bench & B. Minn. 26, 29.) Additionally, “During debate, Congress clarified that the Act is retroactive ‘as to contracts currently signed,’ but not to ‘cases currently pending.’” (Ibid.)

The Court finds that the Act applies here because Plaintiff’s case was filed after the the Act’s passage. Plaintiff contends that the Act renders the arbitration provision unenforceable as to all causes of action. That expansive view is unpersuasive. Rather, the Court harmonizes the law’s preference for resolution by arbitration with Congress’s intent to exempt sexual harassment and assault claims from predispute arbitration agreements. In order for the Act to apply, the case must relate to a sexual harassment dispute. (9 U.S.C. § 402(a).) Upon review of Plaintiff’s Complaint, the first and third causes of action relate to a sexual harassment dispute. In contrast, the second, fourth, fifth, and sixth causes of action are grounded in other violations of the FEHA and the Labor Code. Therefore, as the Complaint has been alleged, the Court declines to find that it consists entirely of a sexual harassment dispute.

Accordingly, the Court finds that the arbitration provision is invalidated by the Act to the extent that it applies to the first and third causes of action claim raised in the Complaint.

Plaintiff argues that the arbitration agreement is unenforceable because it is substantively and procedurally unconscionable. (Opposition at pp. pp. 12-19, 22-25.)

An agreement is unenforceable if it is both procedurally and substantively unconscionable. (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 125; Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 910.) But procedural and substantive unconscionability need not be present in the same degree. (OTO, supra, 8 Cal.5th at 125.) Courts use a “sliding scale” approach—“the more substantively unconscionable the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” (Armendariz v. Found Health Psychcare Servs., Inc. (2000) 24 Cal.4th 83, 114.) Under general contract principles, unconscionability has both a procedural and substantive element, with the former focusing on oppression or surprise due to unequal bargaining power, and the latter focusing on overly harsh or one-sided rules. (Armendariz, supra, 24 Cal.4th at p. 114.) Both procedural and substantive unconscionability must be present in order for a court to exercise its discretion to refuse to enforce a contract on the basis of unconscionability. (Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519, 1533.)

“Procedural unconscionability pertains to the making of the agreement; it focuses on the oppression that arises from unequal bargaining power and the surprise to the weaker party that results from hidden terms or the lack of informed choice.” (Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 795.) Arbitration clauses are often found in adhesion contracts (standardized contracts drafted by a party of superior bargaining power and presented to the weaker party on a take-it-or-leave-it basis). (See, e.g., Armendariz, supra, 24 Cal.4th at 113-114.)

Here, Plaintiff argues that the arbitration agreement is procedurally unconscionable because it is an adhesion contract, no arbitration rules were provided, no Spanish translation was provided, and the presence of three agreements make it unclear what the controlling arbitration terms are. (Opposition at pp. 15, 22-24.)

In response, Defendants argue the 2019 arbitration agreement is not procedurally unconscionable in any degree for several reasons. First, they assert that adhesion contracts are not unenforceable unless there is a high degree of substantive unconscionability, which is missing in this instance. (Reply at pp. 5-6.) Second, the lack of arbitration rules is not dispositive because nothing was hidden from Plaintiff. (Reply at pg. 6, relying on Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1246.) Lastly, in terms of the language barrier, Defendants argue they were unaware of Plaintiff’s inability to read English or that she voiced concerns about the agreement. (Reply at pg. 7.) [1] Thus, Defendants assert that there was no instance of coercion or surprise.

The Court finds there is a significant degree of procedural unconscionability in the 2019 arbitration agreement. This was an adhesion contract, but that alone does not render the arbitration provision unenforceable. Such contracts are “an inevitable fact of life for all citizens—businessman and consumer alike.” (Graham v. Scissor-Tail, Inc.¿(1981) 28 Cal.3d 807, 817.) While Plaintiff claims that she was not provided a translated copy of the arbitration agreement, as noted, the record does not show that Plaintiff attempted to seek clarification from GFS before signing this agreement.

Plaintiff argues that there is confusion as to which arbitration terms control amongst the three versions. This argument carries little weight because, under the principles of contract, the 2019 arbitration agreement would be the controlling document. (In re Ferrero’s Estate (1956) 142 Cal.App.2d 473, 478; Civ. Code § 1532.)

However, Defendants’ failure to provide arbitration rules is problematic. Other than providing for adequate discovery pursuant to Code of Civil Procedure § 1283.05, the 2019 arbitration agreement fails to articulate the specific rules that apply during arbitration. Defendants rely on Baltazar v. Forever 21 (2016) 62 Cal.4^th 1237, for the proposition that the rules must not be artfully hidden by reference. This reliance is inapplicable because here the rules were not merely hidden – they were not provided at all. Failing to attach arbitration rules may be considered “oppressive,” and a basis for a finding of unconscionability. (Samaniego v. Empire Today LLC (2012) 205 Cal.App.4th 1138, 1146 [failure to provide copy of relevant arbitration rules “significant,” and potentially “oppressive”]; Trivedi v. Curexo Technology Corp. (2010) 189 Cal.App.4^th 387, 393-394 [“numerous cases have held that the failure to provide a copy of the arbitration rules . . . supported a finding of procedural unconscionability”].)

Accordingly, the Court finds that there is a significant degree of procedural unconscionability because the arbitration agreement is an adhesion contract and fails to identify the applicable arbitration rules.

Substantive unconscionability focuses on the actual terms of the agreement and evaluates whether the terms create overly harsh or one-sided results as to shock the conscience. (Suh v. Superior Court (2010) 181 Cal.App.4th 1504, 1515; Sanchez, supra, 61 Cal.4th at 910-911 [an “old-fashioned bad bargain” or a contract term which “merely gives one side a greater benefit” insufficient].)

Plaintiff argues that the arbitration agreement has a high degree of substantive unconscionability. First, Plaintiff contends that, because the 2019 arbitration agreement lacks a provision as to whether the employer would bear the costs of arbitration, it cannot be enforced. (Opposition at pp. 14-15, relying on Armendariz, supra, 24 Cal.4th at 110-111 and O’Hare v Municipal Resources Consultants (2003)107 Cal. App. 4th 267.) The Court does not find this argument persuasive. Unlike in O’Hare, the 2019 arbitration agreement does not reference or incorporate any rules promoted by an arbitration provider. The issue in O’Hare was that the agreement incorporated the rule requiring the parties to equally bear arbitration costs, which is inconsistent and contravenes Armendariz. (O’Hare, supra, 107 Cal.App.4th at pp. 279-280.)

In this instance, the 2019 arbitration agreement is completely silent about the issue of cost allocation and does not reference any third-party arbitration rules. Our Supreme Court has explained that an arbitration agreement that is silent regarding costs is not thereby unenforceable, but in a FEHA or wrongful termination case, the court may order the employer to bear the arbitration costs. “The absence of specific provisions on arbitration costs [are] not grounds for denying the enforcement of the arbitration agreement.” (Armendariz, supra, 24 Cal.4^th at p. 113.) The Supreme Court held “that a mandatory employment arbitration agreement that contains within its scope the arbitration of FEHA claims impliedly obliges the employer to pay all types of costs that are unique to arbitration.” The High Court interpreted the agreement as providing “that the employer must bear the arbitration forum costs.” (Ibid.; see also Little v. Auto Stiegler, Inc. (2003) 29 Cal.4^th 1064, 1081-1082 [arbitration agreement’s silence on the issue of costs means the employer must pay arbitration cost].) Accordingly, the Court interprets the GFS arbitration agreement to provide that the employer pay all arbitration forum costs.

Second, Plaintiff argues that the 2019 arbitration agreement is one-sided because it provides for various motions to the employer but limits the scope of discovery and motions for Plaintiff to pursue. (Opposition at pp. 17-18.) This argument is also unpersuasive because the 2019 arbitration agreement provides for “mandatory and permissive rights to discovery,” and it incorporates Code of Civil Procedure §1283.05, which provides Plaintiff with the same discovery rights as if she were pursuing her action in superior court. (Temple Decl. ¶ 13, Exh. B.) Also, Plaintiff fails to articulate what forms of motion practice are precluded under this agreement.

Third, Plaintiff contends that it is improper to shield the arbitrator from civil liability as a judicial officer would have. (Opposition at pg. 18.) However, Plaintiff fails to cite to any legal authority to support this position, and the Court is unaware of any that exists. Lastly, Plaintiff argues that it is illegal for her to waive her right to file a class action for wage and hour violations. (Opposition at pp. 18-19.) Again, the Court is unpersuaded. This argument is inapplicable because the Complaint does not raise any class action claims.

Consequently, Plaintiff has failed to demonstrate that there is a degree of substantive unconscionability present in the 2019 arbitration agreement. With the requirement that Defendants pay all of the costs of arbitration, the Court concludes that the agreement is not substantively unconscionable. Although the Court found significant procedural unconscionability, the absence of substantive unconscionability requires the Court to find that the arbitration agreement is not unconscionable.

Here, Defendants contend that each of them are covered by the 2019 arbitration agreement because the agreement applies to any claim that Plaintiff may have against GFS “or its owners, directors, officers, managers, employees, or agents.” (Motion at pp. 4, 6-7; Temple Decl. ¶13, Exh. B.) Thus, Defendants reason that BBSI, Camacho, Temple, and Magallanes are third party beneficiaries under the 2019 arbitration agreement and entitled to enforce the agreement. (Motion at pg. 7.)

In opposition, Plaintiff argues that that the 2019 arbitration agreement only references her and GFS, not BBSI, Camacho, Temple, and Magallanes. (Opposition at pg. 25.) Thus, she asserts that these defendants have the burden to prove that there is an arbitration agreement that applies to them. (Ibid.) The Complaint alleges that the Defendants “were the agents, employees, managing agents, [and] supervisors” of each other. (Complaint ¶ 4.) Courts have found that an agent of a signatory may enforce an arbitration agreement (24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199; Dreyer v. Los Angeles Rams (1985) 40 Cal.3d 406, 418.) Furthermore, the 2019 arbitration agreement expressly contemplates that the employee may have claims directed at individuals or entities other than the employer such as agents or officials. (Temple Decl. ¶ 13, Exh. B at pg. 1.)

Accordingly, the Court finds that the arbitration agreement applies to all parties in this action.

Lastly, Plaintiff argues Defendants waived their right to arbitration because the Defendants were dilatory in seeking to compel arbitration and have engaged in discovery. (Opposition at pg. 26.)

Under federal law, “[a] party seeking to prove waiver of a right to arbitration must demonstrate: (1) knowledge of an existing right to compel arbitration; [and] (2) acts inconsistent with that existing right. . . .” (Fisher v. A.G. Becker Paribas Inc. (9th Cir. 1986) 791 F.2d 691, 694.) There is no requirement to show that the opposing party has been prejudiced by the inconsistent conduct. (Morgan v. Sundance, Inc. (2022) 142 S. Ct. 1708, 1713-1714.)

Under California law, “[i]n determining waiver, a court can consider (1) whether the party's actions are inconsistent with the right to arbitrate; (2) whether the litigation machinery has been substantially invoked and the parties were well into preparation of a lawsuit before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place; and (6) whether the delay affected, misled, or prejudiced” the opposing party.” (St. Agnes Medical Center v. PacifiCare of California¿(2003) 31 Cal.4th 1187, 1198, internal quotations omitted.)¿“Answering a complaint and participating in litigation, on their own, do not waive the right to arbitrate.” (Gloster¿v. Sonic Automotive, Inc.¿(2014) 226 Cal.App.4th 438, 449.)¿As arbitration is a favored method of dispute resolution, “waivers are not to be lightly inferred and the party seeking to establish a waiver bears a heavy burden of proof.”¿(Id.¿at¿447.)¿

The Court is unpersuaded by Plaintiff’s argument that Defendants acted inconsistently with their right to compel binding arbitration. In reality, they have only minimally engaged in litigation with the filing of their respective answer. Also, the only discovery that they have engaged in is by answering the requests propounded by Plaintiff. Moreover, Plaintiff was notified of Defendants intention to compel arbitration back in November 2022 but did not respond. (Dryjanski Decl. ¶ 3, Exh. D.)

Accordingly, the Court finds that Defendants have not waived their right to compel arbitration.

“[A]bsent some ambiguity in the agreement. . . it is the language of the contract that defines the scope of disputes subject to arbitration.” (EEOC v. Waffle House Inc. (2002) 534 U.S. 279.)

Here, Defendant argues that all of Plaintiff’s claims are subject to arbitration because they arise from her employment. (Motion at pp. 4, 8-11.) However, as stated above, Plaintiff’s claims arising from sexual harassment, consisting of the first and third cause of action, are not bound to arbitration pursuant to the Act. With regard to the remaining claims, the Court finds that the 2019 arbitration agreement is not ambiguous. It states that arbitration applies to “all disputes that may arise out of or be related in any way to [Plaintiff’s] employment.” (Temple Decl, ¶ 13, Exh. B at pg. 1.) Thus, Plaintiff’s claims for discrimination in violation of the FEHA, denial of equal pay, and wrongful termination fall within the scope of the 2019 arbitration agreement.

Accordingly, the Court finds that Plaintiff’s claims unrelated to sexual harassment are subject to arbitration.

If a party applies to a court “for an order to arbitrate a controversy which is an issue involved in an action or proceeding pending before a court of this State and such application is undetermined, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until the application for an order to arbitrate is determined and, if arbitration of such controversy is ordered, until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.” (Code of Civ. Proc., § 1281.4.)

Because the Court has found that arbitration is warranted in this matter, the Court also stays the proceedings during the pendency of the arbitration process.

Because the arbitration agreement is valid and enforceable with the exception of Plaintiff’s claims relating to sexual harassment, the Court grants Defendants’ motion to compel arbitration as to all parties with regard to the second, fourth, fifth, and sixth causes of action and denies it as to the first and third causes of action. The Court further stays the proceedings during the pendency of the arbitration process.

[1] As discussed above, Plaintiff has not shown that she sought explanation or translation of the arbitration agreement before she agreed to it. But the Court doubts that the employer can plausibly maintain that it was unaware of the language proficiency of a ten-year employee.

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