Judge: Gregory Keosian, Case: 23STCV02678, Date: 2023-11-13 Tentative Ruling

Case Number: 23STCV02678    Hearing Date: February 27, 2024    Dept: 61

Defendant Winstar Properties, Inc.’s Motion to Compel Arbitration is DENIED. Defendant’s motion to stay proceedings is also DENIED.

Plaintiff to provide notice.

I.                   MOTION TO COMPEL ARBITRATION

On petition of a party to an arbitration agreement to arbitrate a controversy, a court must order the petitioner and respondent to arbitrate the controversy if it determines the arbitration agreement exists, unless (1) the petitioner has waived its right to arbitrate; (2) grounds exist for the revocation of the agreement; or (3) “[a] party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact.” (Code Civ. Proc., § 1281.2.)

“[T]he party moving to compel arbitration bears the burden of establishing the existence of a valid agreement to arbitrate, and the party opposing arbitration bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. The role of the trial court is to sit as a trier of fact, weighing any affidavits, declarations, and other documentary evidence, together with oral testimony received at the court's discretion, to reach a determination on the issue of arbitrability.” (Hotels Nevada v. L.A. Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 758.)

Defendant Winstar Properties, Inc. (Defendant) moves to compel arbitration of Plaintiff Lakisha Swift’s (Plaintiff) claims based on an arbitration agreement executed on March 10, 2022, whereby Plaintiff agreed to arbitration of any claim “that in any way relates to or arises from Employee’s employment or application for employment.” (Teller Decl. ¶ 10, Exh. 1.)[1]

Plaintiff in opposition contends that the agreement cannot be enforced against a claim for sexual harassment under 9 U.S.C. § 402, and further that the agreement is unconscionable. (Opposition at pp. 2–5.)[2]

Plaintiff’s argument that 9 U.S.C.  § 402 prevents the enforcement of this arbitration agreement is persuasive. That section prevents the enforcement of arbitration agreements for a “sexual harassment dispute,” and further states that “no predispute arbitration agreement . . . shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the . . . sexual harassment dispute.” (9 U.S.C. § 402, subd. (a).)

Defendant in reply argues that Plaintiff’ harassment claim is rebutted by the declarations of other employees who say that have not witnessed the behavior complained of. (Reply at pp. 5–7.) These arguments are unpersuasive and moreover beside the point. Defendant cannot attempt to rebut Plaintiff’s allegations of sexual harassment in this motion by the production of contrary evidence, since the applicability of 9 U.S.C. § 402 is determined by the “alleging [of] conduct constituting a sexual harassment dispute or sexual assault dispute,” not on the merits of the claim or how the court’s predict the dispute shall ultimately be resolved. (9 U.S.C. § 402, subd. (a), italics added.) Defendant’s contention that motions to compel arbitration are a “summary proceeding” is of application only to the facts relating to the arbitration agreement, not to the underlying claim that is sought to be arbitrated. (See Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) Defendant’s attempt to subject Plaintiff’s underlying claims to evidentiary review would thus fail even if it were brought in the originating motion, and not raised for the first time in reply, with no opportunity for Plaintiff to respond.

Defendant’s arguments against the legal sufficiency of Plaintiff’s harassment allegations are at least relevant to the present motion. The protections of 9 U.S.C. § 402 apply only to viably pleaded claims. (See Johnson v. Everyrealm, Inc. (S.D.N.Y., 2023) 2023 WL 2216173, at *1 [holding that statute prevented enforcement of arbitration agreement as to a “viably pled sexual harassment dispute”].) The elements of a claim for FEHA harassment are (1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome harassment; (3) the harassment complained of was based on plaintiff’s membership in the protected group; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior.” (See Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1122.) “Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances. The plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609–10, citations omitted.)

However, Plaintiff’s claims are legally sufficient to allege harassment. Plaintiff alleges that her immediate supervisor on two occasions forcefully slapped her buttocks, on one instance doing so in front of her other coworkers, in a manner she found humiliating. (Complaint ¶¶ 8, 11, 12.) Plaintiff also alleges that this same supervisor made objectifying comments about her clothes, body, and relationships. (Complaint ¶ 15.) Similar allegations have been held sufficient to constitute harassment. (See Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 880 [reversing grant of summary judgment where there was evidence of “multiple incidents of conduct over a period of months, including leering gestures, hand massages, and inappropriate questions, which culminated with the slapping or groping incident”].) Defendant’s reply does not even mention the two instances of physical harassment identified in the pleadings.

Defendant argues that if the harassment claim is not arbitrable, then the other claims should go to arbitration. (Reply at pp. 7–8.) This argument too is unpersuasive. The prohibitory force of 9 U.S.C. § 402 applies not just to harassment claims, but to any “arbitration agreement” offered against “a case . . . [that] relates to the sexual assault dispute or the sexual harassment dispute.” (9 U.S.C. § 402, subd. (a), italics added.) “[T]he 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.” (Johnson v. Everyrealm, Inc. (S.D.N.Y. 2023) 657 F.Supp.3d 535, 559.) The severance that Defendant seeks is therefore unavailable.

The motion is therefore DENIED. Defendant’s concurrent motion to stay depends upon an order granting its motion for arbitration, and this too is DENIED.