Judge: Cynthia A Freeland, Case: 37-2023-00025790-CU-PO-NC, Date: 2024-03-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - February 22, 2024

02/23/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2023-00025790-CU-PO-NC YBARRA VS. ADAME [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 10/23/2023

The court, on its own motion, continues this matter to Friday, March 1, 2024 at 1:30 p.m. in this department. In advance of that hearing, the court issues the following tentative ruling: Defendants Bayshire, LLC ('Bayshire'), Scott R. Kirby, and Jonathan Thomas (collectively, 'Defendants')'s motion to compel arbitration is denied.

This action involves alleged sexual abuse of a memory care facility resident. On January 29, 2021, Plaintiff Rachel Ybarra ('Plaintiff'), through her daughter, Sara DeborahAnne Styles, and TPD Del Dios LLC entered into a Residence and Care Agreement (the 'Agreement') under which Plaintiff would reside at Vista Del Lago Memory Care ('Vista Del Lago'), a licensed residential care facility located at 1817 Avenida Del Diablo, Escondido, CA 92029. See Renick Decl., Ex. 1; Styles Decl., ¶ 2. Paragraph I.T. of the Agreement contains an arbitration provision (the 'Arbitration Agreement') that provides as follows: By signing below, you agree that any and all claims and disputes arising from or related to this Agreement or to your residence, care or services at the Community, whether made against us or any other individual or entity, including, without limitation, personal injury or wrongful death claims, shall be resolved by submission to neutral, binding arbitration in accordance with the Federal Arbitration Act; except that any claim or dispute involving unlawful detainer proceedings (eviction) or any claims that can be brought in small claims court shall not be subject to arbitration unless both parties agree to arbitrate such proceedings. If someone other than the resident signs this arbitration clause, he/she understands and agrees that he/she is agreeing to arbitrate on behalf of the resident and on behalf of him/herself as an individual. You give up your constitutional right to have any such dispute decided in a court of law before a jury, and instead accept the use of arbitration. You further waive your right to participate in a representative capacity, or to participate as a member of a class, in any litigation or arbitration proceeding with respect to any such dispute. The arbitration shall be administered by the Judicial Arbitration and Mediation Services ('JAMS') and shall be conducted in Escondido, California by a single neutral arbitrator selected by JAMS, unless otherwise mutually agreed. In reaching a decision, the arbitrator shall prepare a written decision that includes findings of fact, the reasons underlying the decision, and conclusions of law. The parties agree not to disclose the existence, content, or results of the arbitration without the prior written consent of the parties, unless disclosure is required by court order. Each party shall bear its own costs and fees in connection with the arbitration, unless otherwise provided by law.

You may withdraw your agreement to arbitrate within thirty (30) days after signing this Agreement by giving written notice of your withdrawal to us. After termination of this Agreement, Calendar No.: Event ID:  TENTATIVE RULINGS

3043331 CASE NUMBER: CASE TITLE:  YBARRA VS. ADAME [IMAGED]  37-2023-00025790-CU-PO-NC this arbitration clause shall remain in effect for the resolution of all claims and disputes that are unresolved as of that date. In the event that any part of this arbitration clause is determined to be unenforceable, the remaining portions of the clause shall remain valid and shall enforced by the parties.

If JAMS is unable to administer the arbitration in accordance with the terms of this clause, the parties shall select another arbitration administrator that is able to do so, and if no such arbitration administrator is available, the parties shall select an arbitrator in accordance with the Federal Arbitration Act. If the Federal Arbitration Act does not permit arbitration in accordance with this clause, then the matter shall be arbitrated in accordance with State law.

By signing below, you warrant that this paragraph has been explained to you, that you understand its significance, that you voluntarily agree to be bound by it, and that you understand that agreeing to arbitration is not a condition of admission to the Community.

See Arbitration Agreement, ¶ I.T (emphasis in original).

On June 20, 2023, Plaintiff commenced this action by filing a Complaint against Defendants Juan Adame, Bayshire, Mr. Kirby, and Mr. Thomas. See ROA No. 1. The Complaint alleges causes of action for: (1) sexual assault; (2) sexual battery under California Civil Code ('CC') § 1708.5; (3) gender violence under CC § 52.4; (4) elder/dependent adult abuse under California Welfare & Institutions Code §§ 15600 et seq.; (5) negligence; (6) negligent hiring/retention; and (7) negligent failure to warn, train or educate. Defendants now move for an order compelling Plaintiff to arbitrate her claims consistent with the Arbitration Agreement.

In relevant part, the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.) (the 'FAA') provides that: A written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

9 U.S.C. § 2.

The court may resolve a motion to compel arbitration in summary proceedings. See Gamma Eta Chapter of Pi Kappa Alpha v. Helvey (2020) 44 Cal. App. 5th 1090, 1098. The court applies state contract law in determining Defendants' right to enforce the Arbitration Agreement. See Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal. 4th 223, 236 ('In determining the rights of parties to enforce an arbitration agreement within the FAA's scope, courts apply state contract law while giving due regard to the federal policy favoring arbitration.'); Giuliano v. Inland Empire Personnel, Inc.

(2007) 149 Cal. App. 4th 1276, 1285 (generally applicable contract defenses may invalidate arbitration agreements provided they do not contravene § 2 of the FAA). A threshold determination in that regard is the existence of a valid arbitration agreement. See Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal. App. 4th 165, 172. Defendants bear the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence. Plaintiff then bears the burden of proving by a preponderance of the evidence any facts necessary to her defense. See Lane v. Francis Capital Management LLC (2014) 224 Cal. App. 4th 676, 683.

The court finds that Defendants have satisfied their initial burden of proving the existence of a valid arbitration agreement. Defendants have provided a copy of the Arbitration Agreement that both parties signed (with Ms. Styles signing the Arbitration Agreement as a 'Responsible Person' on Plaintiff's behalf). Nothing further is required to prove the Arbitration Agreement's existence. See Condee v. Longwood Management Corp. (2001) 88 Cal. App. 4th 215, 218-219 ('For purposes of a petition to compel arbitration, it is not necessary to follow the normal procedures of document authentication . . .

the court is only required to make a finding of the agreement's existence, not an evidentiary determination of its validity.'); Cal. R. Ct. 3.1330.

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3043331 CASE NUMBER: CASE TITLE:  YBARRA VS. ADAME [IMAGED]  37-2023-00025790-CU-PO-NC The burden thus falls to Plaintiff to provide facts necessary to preclude enforcement of the Arbitration Agreement. The court finds that Plaintiff has met her burden. More specifically, the court finds that the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (9 U.S.C. §§ 401, 402) (the 'Act') applies and requires that this entire matter be adjudicated by the court rather than through binding arbitration. The Act, which voids pre-dispute arbitration clauses in cases involving sexual harassment allegations, was signed into law on March 3, 2022. See Murrey v. Superior Court of Orange County (2023) 87 Cal. App. 5th 1223. In pertinent part, the Act provides that: (a) Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, . . . 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(a). The Act defines a sexual assault dispute as 'a dispute involving a nonconsensual sexual act or sexual contact, as such terms are defined in section 2246 of title 18 or similar applicable Tribal or State law, including when the victim lacks capacity to consent.' 9 U.S.C. § 401(3).

In this case, the court finds that the Complaint states a viable claim for sexual assault. The Complaint alleges that Plaintiff is a 54-year-old woman who suffered multiple strokes and a brain aneurysm in 2019 and 2020, leaving her with moderate physical and cognitive impairments. See Complaint, ¶ 2. Although Plaintiff's family initially cared for her for several months, it soon became apparent that Plaintiff required full-time professional care. Ibid. On January 26, 2021, Plaintiff become a full-time resident of Vista Del Lago. Ibid., ¶ 3. Bayshire and Mr. Kirby owned and operated Vista Del Lago during the subject period.

Ibid. Mr. Thomas, for his part, served as Vista Del Lago's director and was responsible for its management during the subject period. Ibid. When Plaintiff became a resident of Vista Del Lago, Bayshire and Mr. Kirby employed Mr. Adame as a caretaker. Ibid., ¶ 4. Mr. Adame soon took a special interest in Plaintiff. One evening, shortly after Plaintiff had arrived at Vista Del Lago, Mr. Adame approached her while she was watching television and informed her that he needed to change her incontinence briefs. Mr. Adame took Plaintiff to the spa area of the facility and subsequently raped her in a private bathroom. Ibid., ¶ 5. Mr. Adame routinely engaged in this activity for nearly two years until Plaintiff reported him to another Del Vista Lago employee on or about February 4, 2023. Ibid., ¶¶ 7-12, 16-22. Defendants, for their part, allegedly acted with reckless indifference to Plaintiff's safety and wellbeing, failed to properly train their employees and agents regarding sexual abuse prevention, failed to properly identify and/or investigate the sexual abuse at issue in this matter, failed to timely report suspicions of sexual abuse to law enforcement personnel, and otherwise were negligent in failing to adequately hire, supervise, and/or retain Mr. Adame. Ibid., ¶¶ 41, 46-48, 53-60, 63-70. The foregoing is sufficient to state a sexual assault claim under state and federal law. See 9 U.S.C. § 401(3); 18 U.S.C.A.

§ 2246(2)-(3).

Initially, the court respectfully must disagree with Defendants that Kader v. Southern California Medical Center, Inc. (2024) 317 Cal.Rptr.3d 682 ('Kader') is not binding on this court or cannot otherwise be relied upon to resolve the present dispute. California Rules of Court, Rule 8.1115(d) makes clear that '[a] published California opinion may be cited or relied on as soon as it is certified for publication or ordered published.' Cal. R. Ct. 8.1115(d). Kader was published on January 29, 2024. That being said, the court recognizes that case law is still developing given the Act's relatively recent enactment.

However, as will be explained, the court finds that California law supports denying Defendants' motion to compel arbitration. In Kader, an employee signed an arbitration agreement in June 2019 agreeing to arbitrate 'employment disputes' with his employer or any of its respective employees or officers under the FAA. At the time the employee signed the arbitration agreement, he had been subject to a series of incidents of sexual harassment and sexual assaults since July 2018, which continued until after the Act's enactment (March 2022). The employee ultimately filed a complaint with the DFEH and requested a right-to-sue notice in May 2022. On May 27, 2022, the employee sued his employer, several of his employer's employees and board members, and other entities for: (1) sexual harassment; (2) Calendar No.: Event ID:  TENTATIVE RULINGS

3043331 CASE NUMBER: CASE TITLE:  YBARRA VS. ADAME [IMAGED]  37-2023-00025790-CU-PO-NC discrimination on the basis of race, national origin, and/or sex; (3) failure to prevent discrimination and harassment; (4) retaliation; (5) intentional infliction of emotional distress; (6) negligence; (7) sexual battery; and (8) defamation. The defendants filed a motion to compel arbitration in the trial court, arguing that the Act did not apply because: (1) the plaintiff's claims accrued before the Act's effective date, and (2) the arbitration agreement was signed after the conduct giving rise to sexual harassment or sexual assault took place. The trial court granted the motion and stayed litigation on all claims arising after March 2, 2022, pending arbitration on the claims that arose before March 2, 2022. The plaintiff sought a writ of mandate from the appellate court, which was granted. The trial court ultimately reversed its decision and denied the motion to compel arbitration, and the defendants appealed.

On appeal, the defendants argued that the Act did not invalidate the arbitration agreement because (1) it was not a 'predispute' arbitration agreement because the subject conduct began before the agreement was signed, and (2) the Act did not apply to the plaintiff's claims that accrued before the Act's effective date. The Second District Court of Appeal disagreed. The Second District concluded that: [T]he date that a dispute has arisen for purposes of the Act is a fact-specific inquiry in each case, but a dispute does not arise solely from the alleged sexual conduct. A dispute arises when one party asserts a right, claim, or demand, and the other side expresses disagreement or takes an adversarial posture (Famuyide, supra, at *3.) In other words, '[a] dispute cannot arise until both sides have expressed their disagreement, either through words or actions.' (Id. at *8.) Until there is a conflict or disagreement, there is nothing to resolve in litigation. (Ibid.) See Kader, 317 Cal.Rptr.3d 682. On that basis, the Second District found no evidence of a dispute between the parties before or at the time of the signing of the arbitration agreement in June 2019. The Second District thus found that the Act applied because the arbitration agreement was executed before the dispute arose between the parties in May 2022. The Second District further concluded that the Act applied to the action because the case was filed on May 2022 – after the Act's March 2022 enactment.

Such is the case here. The undisputed evidence establishes that the parties executed the Arbitration Agreement on January 29, 2021. The Act was effective March 2, 2022. However, Plaintiff did not report Mr. Adame, and thus a dispute did not arise, until February 4, 2023 – roughly 11 months after the Act's enactment. Consequently, the court finds that the Act applies to the parties' dispute. The Fourth District Court of Appeal also has recently touched on this issue, noting that the Act is applicable to cases filed after its enactment. See Murrey, 87 Cal. App. 5th at 447. The court agrees that a plain reading of the statutory text demonstrates that the Act applies 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(a).

Here, Plaintiff commenced this action on June 20, 2023 – about 15 months after the Act's enactment.

Defendants next contend that the motion should be granted, at a minimum, as to the portion of Plaintiff's claims that accrued before March 3, 2022. The court disagrees and finds that the Arbitration Agreement is unenforceable as to the entire case as pleaded and thus will not order any portion of Plaintiff's claims to arbitration. Initially, the court notes that, as set forth in the Complaint, the alleged sexual assault occurred continuously both before and after the Act's enactment. Moreover, to the extent Defendants contend that certain claims set forth in the Complaint do not arise from sexual assault allegations, the court respectfully must disagree. The United States District Court for the Southern District of New York has addressed this issue in a recent published decision. See Johnson v. Everyrealm, Inc., 657 F.Supp.3d 535 (S.D.N.Y. 2023). In relevant part, the Southern District of New York was confronted with the issue of whether, after a court has determined that the Act applies to a sexual harassment claim, the arbitration agreement is enforceable as to the other claims in the case. The court determined that the Act blocks arbitration as to the entire case. Analyzing 9 U.S.C. § 402(a), the court found the text clear, unambiguous, and decisive as to the issue, noting that that use of the word 'case' 'keys the scope of the invalidation of the arbitration clause to the entire 'case' relating to the sexual harassment dispute. It thus does not limit the invalidation to the claim or claims in which that dispute plays a part.' Ibid., at 558. Put differently, '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 Calendar No.: Event ID:  TENTATIVE RULINGS

3043331 CASE NUMBER: CASE TITLE:  YBARRA VS. ADAME [IMAGED]  37-2023-00025790-CU-PO-NC case that themselves ether allege such harassment or relate to a sexual harassment dispute[.]' Ibid., at 559. Furthermore, the court agrees with Plaintiff that the Complaint, while asserting various causes of action, is predicated entirely upon Mr. Adame's alleged sexual assault against Plaintiff.

Accordingly, the court finds that the Arbitration Agreement is unenforceable under the Act.

Consequently, the court need not reach the merits of the parties' respective unconscionability arguments.

In light of the foregoing, the court denies Defendants' motion to compel arbitration.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, March 1, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of March 1, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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