Judge Gary Y. Tanaka, Case 23TRCV00813 2023-05-25 Tentative Ruling

Judge: Gary Y. Tanaka, Case: 23TRCV00813, Date: 2023-05-25 Tentative Ruling

Case Number: 23TRCV00813 Hearing Date: May 25, 2023 Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka Thursday, May 25, 2023

Department B Calendar No. 8

PROCEEDINGS

Katherine Tourtelot v. YS Garments, LLC, et al.

23TRCV00813

1. YS Garments, LLC’s Petition to Compel Arbitration and Stay Action

TENTATIVE RULING

YS Garments, LLC’s Petition to Compel Arbitration and Stay Action is granted.

Background

Plaintiff filed the Complaint on March 20, 2023. Plaintiff alleges the following facts. Plaintiff is a former employee of Defendant. Plaintiff alleges that she was subjected to sexual harassment, as well as discriminatory and retaliatory conduct based on gender. Plaintiff alleges that she was also sexually assaulted and battered by a supervisor. Plaintiff alleges the following causes of action: 1. Sexual Harassment in Violation of FEHA – Hostile Work Environment (Cal. Govt. Code § 12940(j)); 2. Discrimination Based on Gender in Violation of FEHA (Cal. Gov’t Code § 12940(a); 3. Unlawful Retaliation (FEHA) 4. Failure to Prevent Harassment and Retaliation 5. Workers Compensation Retaliation; 6. Wrongful Termination in Violation of Public Policy; 7. Battery; 8. Sexual Assault/Assault.

Motion to Compel Arbitration

“California law reflects a strong public policy in favor of arbitration as a relatively quick and inexpensive method for resolving disputes. [Citation.] To further that policy, [Code of Civil Procedure] section 1281.2 requires a trial court to enforce a written arbitration agreement unless one of three limited exceptions applies. [Citation.] Those statutory exceptions arise where (1) a party waives the right to arbitration; (2) grounds exist for revoking the arbitration agreement; and (3) pending litigation with a third party creates the possibility of conflicting rulings on common factual or legal issues. (§ 1281.2, subds. (a)–(c).)” Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 967.

“The petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence, and a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court’s discretion, to reach a final determination.” Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1284.

“The party opposing arbitration has the burden of demonstrating that an arbitration clause cannot be interpreted to require arbitration of the dispute. Nonetheless, this policy does not override ordinary principles of contract interpretation. [T]he contractual terms themselves must be carefully examined before the parties to the contract can be ordered to arbitration: Although [t]he law favors contracts for arbitration of disputes between parties, there is no policy compelling persons to accept arbitration of controversies which they have not agreed to arbitrate.” Rice v. Downs (2016) 247 Cal.App.4th 1213, 1223 (internal citations and quotations omitted).

In Rowe v. Exline (2007) 153 Cal.App.4th 1276, 1286, the Court of Appeal found that “a nonsignatory sued as an agent of a signatory may enforce an arbitration agreement.” Id. at 1286. In addition, “a nonsignatory who is the agent of a signatory can even be compelled to arbitrate claims against his will.” Id. at 1285, citing Harris v. Superior Court (1986) 188 Cal.App.3d 475, 477–78. Further, “in many cases, nonparties to arbitration agreements are allowed to enforce those agreements where there is sufficient identity of parties.” Valley Casework, Inc. v. Comfort Construction, Inc. (1999) 76 Cal.App.4th 1013, 1021. This includes nonparties as agents of a party as well as “a third party beneficiary of an arbitration agreement.” Ibid.

Defendant moves for an order compelling arbitration of Plaintiff’s claims, and for an order to stay the action pending completion of arbitration. The motion is made pursuant to Code of Civil Procedure §1281 et seq. and the FAA on the grounds Plaintiff is bound by a written agreement to arbitrate the subject matter of the Complaint.

Code Civ. Proc., § 1281.2 states, in relevant part: “On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists[. . .]” “Generally, an arbitration agreement must be memorialized in writing. A party's acceptance of an agreement to arbitrate may be express, as where a party signs the agreement. A signed agreement is not necessary, however, and a party's acceptance may be implied in fact or be effectuated by delegated consent. An arbitration clause within a contract may be binding on a party even if the party never actually read the clause.” Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236 (internal citations omitted). It is not an adequate defense to enforcement that Plaintiff failed to read and understand the agreement before signing the agreement. Caballero v. Premier Care Simi Valley LLC (2021) 69 Cal.App.5th 512, 519.

Defendant has established the existence of a valid arbitration agreement between Plaintiff and Defendant. (Decl., Dana Brooks, ¶¶ 7-13, Exs. A, B.) The agreement states that it is enforceable under the FAA and states, in relevant part, that arbitration is required of “any and all disputes or claims” between Tourtelot and Next Level Apparel that “arise out of or relate to” her “employment or separation from employment” with Next Level Apparel, “including claims involving and/or against any current or former . . . employee of the Company.” (Id. Ex. B, p. 1 at “Claims Covered by the Agreement.”) The claims covered include: (1) “claims for wrongful termination of employment, retaliation, violation of public policy,” (2) “any other tort or tort-like causes of action relating to or arising from the employment relationship or the formation or termination thereof,” and (3) “claims under any and all federal, state, or municipal statutes, regulations, or ordinances, including but not limited to laws that prohibit discrimination, harassment, or retaliation in employment pursuant to any federal, state or local fair employment or right to leave laws.” (Id. pp. 1-2.)

Therefore, the burden shifts to Plaintiff to show that the arbitration clause should not be enforced. Rice, supra, 247 Cal.App.4th at 1223. Plaintiff fails to meet her burden.

Plaintiff argues that the seventh and eighth causes of action for Battery and Sexual Assault/Assault are not subject to arbitration.

However, the arbitration agreement includes a delegation clause which states that any dispute regarding the arbitrability of any claim is to be determined by the arbitrator. “The Company and I understand and agree that any dispute as to the arbitrability of a particular issue or claim pursuant to this Agreement is to be resolved in arbitration. The arbitrator shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement[.]” (Arbitration Agreement, p. 4.) “[T]he [p]arties to an arbitration agreement may agree to delegate to the arbitrator, instead of a court, questions regarding the enforceability of the agreement.” Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 891–892 (holding that a similarly phrased delegation clause mandated that decisions regarding the arbitrability of an issue was to be decided by the arbitrator).

The parties have also discussed extensively the substantive issue of whether the seventh and eighth causes of action are subject to arbitration. However, as noted above, the arbitrator is mandated to resolve this issue. The Court cannot weigh in and provide any advisory opinion regarding this issue, at this time.

Therefore, the Motion to Compel Arbitration is granted. The Court action is ordered stayed pending completion of arbitration. An OSC re: status of arbitration is set for _________.

Defendant is ordered to give notice of this ruling.