Judge: Colin Leis, Case: 24STCV20472, Date: 2025-05-28 Tentative Ruling

Case Number: 24STCV20472    Hearing Date: May 28, 2025    Dept: 74

King v. Internet Corporation for Assigned Names and Numbers et al.

Defendant Internet Corporation for Assigned Names and Numbers’s Motion to Compel Arbitration

BACKGROUND 

This motion arises from a sexual harassment employment action.

Plaintiff Tanzanica King (Plaintiff) filed a complaint against her employers Internet Corporation for Assigned Names and Numbers (ICANN), Nick Tomasso and Allison Michael.

ICAAN filed a motion to compel arbitration.  Defendant Nick Tomasso (Tomasso) joined the motion.

DISCUSSION

             ICANN moves to compel arbitration based on Plaintiff’s signature of an Arbitration Agreement (Agreement) as part of the employment onboarding process on September 26, 2002.  (Hoover Decl., ¶ 5, Ex. 1.)  In pertinent part, the Agreement states:

“I agree that any dispute arising out of my employment by ICANN will be resolved by a neutral arbitrator… This agreement applies to any claims arising out of my employment that I have against ICANN (including its officers, directors, employees, agents, affiliated entities or benefit plans), and it also applies to any claims against out of my employment that ICANN may have against me.” 

(Hoover Decl., Ex. 1.)  Plaintiff’s name and signature are included at the bottom of the page.  (Hoover Decl., Ex. 1.)  The evidence shows that Plaintiff agreed to submit all claims within the terms of the provision for arbitration.  Plaintiff does not dispute the bindingness of the arbitration provision.  Rather, Plaintiff argues that the Federal Arbitration Act (FAA) should govern the arbitration agreement, and that if the FAA is applicable, then the End Forced Arbitration Act (EFAA) exempts Plaintiff’s claims from arbitration. 

End of Forced Arbitration Act

            A choice of law provision allows parties to contract for state or federal law to govern their agreement.  (Brack v. Omni Loan Co. (2008) 164 Cal.App.4th 1312, 1321.)  The Agreement provides that the arbitration will be governed by the California Arbitration Act.  Previous courts have held that parties can avoid preemption by the FAA when they specifically incorporate California’s arbitration laws.  (See Hernandez v. Sohnen Enterprises, Inc. (2024) 102 Cal.App.5th 222, 240.)  In Casey v. Superior Court (2025), an arbitration agreement selected state law with the arbitration agreement, but the EFAA still prohibited the enforcement of the arbitration agreement in a sexual harassment action.  (108 Cal.App.5th 575, 581, 586-87.)  Casey found that the EFAA’s categorical rule of unenforceability directly conflicts with the more permissive California Arbitration Act (CAA).  (Id. at 584.)  Federal preemption applies when there is a conflict between federal and state requirements making it impossible to comply with both.  (Ibid.) 

            ICANN states that Casey is inapplicable because the parties did not specifically contract for the CAA to apply.  In Casey, as in this action, the parties specifically contracted that the Agreement “‘shall at all times and in all respects be governed by the laws of the State of California.’”  (Casey, supra, 108 Cal.App.5th at pp. 581.)  ICANN attempts to draw a distinction between specifically contracting for the agreement to be “governed by the [CAA] Sections 1280 et seq. of the California Code of Civil Procedure” and “under the authority of the California Code of Civil Procedure.”  (Hoover Decl., Ex. 1; Casey, supra, 108 Cal.App.5th at pp. 581.)  The Court finds this distinction unpersuasive.

Additionally, ICANN argues that the text of EFAA expresses a specific intent to apply only to the FAA.  Reviewing the relevant code sections reveals that Congress clearly intended the EFAA to apply to the FAA but does not exclude the EFAA from preempting the CAA.  (See 9 U.S.C. § 402; 9 U.S.C. § 2.)  

Finally, ICANN requests that this Court decide that Casey was wrongly decided in favor of applying Hernandez.  The Court declines to do so.  First, Casey specifically addresses Hernandez and its precedent by making the distinction between consistent goals of enforceability and the conflicting goals of the CAA and the EFAA.  (Casey, supra, 108 Cal.App.5th 575, 586 fn. 7.)  Second, Hernandez is currently under review by the California Supreme Court.  And third, Hernandez is not directly applicable as it does not address the EFAA and thus there is no direct conflict between Appellate Courts. 

Given that the EFAA will preempt the CAA when applicable, the remaining question is if the EFAA applies to Plaintiff’s claims.  The EFAA prohibits enforcing arbitration agreements against persons who allege sexual harassment.  (9 U.S.C. ¶ 402.)  The EFAA applies to any dispute arising or accruing on or after the enactment of the act, May 2022.  (Pub. L. No. 117-90, March 3, 2022, 136 Stat. 26, 28 (2022).)  In determining if an action accrues after the date of the enactment, the court considers the doctrine of continuing violation.  (Doe v. Second Street Corp. (2024) 105 Cal.App.5th 552, 568.)  The continuing violation doctrine applies when the actions (1) are sufficiently similar in kind, (2) occur with reasonable frequency, and (3) have not acquired a degree of permanence.  (Birschtein v. New United Motor Mfg., Inc. (2001) 92 Cal.App.4th 994, 1004.) 

Plaintiff alleges that during her 22-year tenure at ICANN, she was subjected to “frat boy culture, having been passed over for promotions, paid lower salaries than male colleagues, sexually harassed, and then wrongfully terminated for blowing the whistle.”  (Complaint ¶ 3.)  Plaintiff alleges that in 2006, she was sexually harassed by a coworker and ICANN failed to take appropriate actions.  (Complaint ¶¶ 27, 29.)  In 2017, Plaintiff alleges that defendant Nick Tomasso sexually harassed her, including making comments about her breasts.  In 2018, another coworker reported Tomasso’s continued sexual harassment.  (Complaint ¶ 32.)  Tomasso continued to harass Plaintiff by commenting on her breasts as well as other inappropriate behaviors.  (Complaint ¶ 32.)  Plaintiff provides another example of the continued pattern of harassment in October 2022 when Tomasso made more inappropriate comments about Plaintiff’s breasts.  (Complaint ¶ 33.)  These behaviors continued in 2023.  (Complaint ¶ 34.) 

Plaintiff’s allegations establish a pattern of actions which were sufficiently similar in kind and occurred with reasonable frequency.  Plaintiff’s allegations include several discrete events which are illustrative of the harassment that her complaint alleges occurred from 2006 to 2023.  Thus, the EFAA applies to Plaintiff’s sexual harassment claims. 

Defendant argues that only Plaintiff’s sexual harassment claims should be exempt from arbitration.   Casey held that the entire action is exempt from arbitration if at least one claim fits within the scope of the EFAA.  (108 Cal.App.5th at pp. 588.)  Therefore, the Court declines ICANN’s Motion to Compel Arbitration.

Given the Court’s disposition of the motion, the Court declines to consider defendant Tomasso’s joinder.

CONCLUSION

            The Court declines Defendant’s Motion to Compel Arbitration.

            Defendant to give notice.