Judge Holly J. Fujie, Case 22STCV08835 2022-08-30 Tentative Ruling

MOVING PARTY: Michelson Laboratories, Inc. and Grant Michelson (collectively, “Moving Defendants”)

The Court has considered the moving and opposition papers. No reply papers were filed. Any reply papers were required to have been filed and served at least five court days before the hearing under California Code of Civil Procedure (“CCP”) section 1005, subdivision (b).

This action arises out of an employment relationship. On March 11, 2022, Plaintiff filed a complaint (the “Complaint”) alleging: (1) violation of the Americans with Disabilities Act; (2) violation of Title VII of the Civil Rights Act (“Title VII”); (3) invasion of privacy; (4) sexual battery; (5) negligent hiring and retention; and (6) premises liability. On April 26, 2022, Moving Defendants filed a petition to compel arbitration and stay proceedings (the “Petition”) on the grounds that when Plaintiff began her employment, she signed a written agreement containing a binding arbitration provision (the “Arbitration Agreement”).

On June 2, 2022, Plaintiff filed a first amended complaint (the “Complaint”) alleging: (1) violation of the Americans with Disabilities Act; (2) violation of Title VII of the Civil Rights Act; (3) invasion of privacy; (4) sexual battery; (5) negligent hiring and retention; (6) premises liability; and (7) declaratory relief. The newly added declaratory relief cause of action relates to the Arbitration Agreement and seeks a declaration that her “claims against [Moving Defendants] (i.e. violation of the ADA and discrimination based on race), do not ‘arise out of her employment’ and that, therefore, the claims are outside the scope of the [Arbitration Agreement]” and that the Arbitration Agreement is unconscionable. Aside from the declaratory relief cause of action, FAC does not otherwise add new material allegations against Moving Defendants. On June 2, 2022, Plaintiff additionally filed an opposition (the “Opposition”) to the Petition.

As a preliminary matter, the Court finds that the FAC was improperly filed. Under CCP section 472, subd. (a), a party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. (CCP section 472, subd. (a).) A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. (Id.) Here, Moving Defendants filed the Petition in lieu of an answer pursuant to CCP section 1281.7 and did not file a demurrer. Plaintiff therefore was only entitled to file the FAC upon stipulation or with leave of the Court. The Court finds that there is neither a stipulation nor an order of the Court permitting the filing of a FAC, and the Court therefore finds that the Complaint is the operative pleading and strikes the FAC.

The purpose of the Federal Arbitration Act (“FAA”) is to move the parties in an arbitrable dispute out of court and into arbitration as quickly and easily as possible. (Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp. (1983) 460 U.S. 1, 23.) The FAA is consistent with the federal policy to ensure the enforceability, according to their terms, of private agreements to arbitrate. (Mastrobuono v. Shearson Lehman Hutton, Inc. (1995) 514 U.S. 52, 57.) A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable, and irrevocable, save upon such grounds as exist for the revocation of any contract. (CCP § 1281.) California law, like federal law, favors enforcement of valid arbitration agreements. (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 97.) 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 unless grounds exist not to compel arbitration. (CCP § 1281.2.)

In support of the Petition, Moving Defendants provide evidence of the Arbitration Agreement, which provides, in part:

“I acknowledge that I have received and reviewed a copy of Michelson Laboratories, Inc.'s (the "Company") 'Mutual Arbitration Policy ("MAP") and have had an opportunity to request and review a Spanish translation as well, and I understand that the MAP is a condition of my employment. I agree that it is my obligation to use the MAP and I agree to submit to final and binding arbitration any and all claims and disputes that are related in any way to my employment or the termination of my employment with the Company, whether they are already pending or have not yet been asserted, and whether they exist now or arise in the future.” (Exhibit 1.)

“The MAP applies to all Company employees, regardless of length of service or status, and covers all disputes relating to or arising out of or in connection with employment at the Company or the termination of that employment, whether those disputes already exist today or arise in the future. Examples of the type of disputes or claims covered by the MAP include, but are not limited to, claims against employees for fraud, conversion, misappropriation of trade secrets, or claims by employees for wrongful termination of employment, breach of contract, fraud, employment discrimination, harassment or retaliation, claims under the Americans With Disabilities Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act, Title VII of the Civil Rights Act of 1964 and its amendments, the California Fair Employment and Housing Act or any other state or local anti-discrimination laws, tort claims, as well as wage, overtime or penalty claims or other claims under the Labor Code, or any other legal or equitable claims and causes or action recognized by local, state or federal law or regulations. The MAP does not cover workers' compensation claims, unemployment insurance claims or any claims that could be made to the National Labor Relations Board. Because it changes the forum in which you may pursue claims against the Company and affects your legal rights, you may wish to review the MAP with an attorney or other advisor of your choice. The Company encourages you to do so.” (Exhibit B.)

The Court finds that Moving Defendants have provided evidence of a binding Arbitration Agreement. The Arbitration Agreement, by its unambiguous terms, applies to all disputes arising out of or in connection to her employment. Further, the MAP specifies that the Arbitration Agreement applies to claims brought pursuant to the ADA and Title VII. These claims are therefore subject to arbitration.

The Court is unable to address Plaintiff’s arguments regarding unconscionability because Plaintiff has not provided evidence concerning the circumstances of the Arbitration Agreement’s execution. In law and motion practice, factual evidence is supplied to the court by way of declarations. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.) The Opposition indicates that Plaintiff did not include a supporting declaration due to the need to protect her anonymity in court filings. (See Opposition, fns. 1, 3.) The proper mechanism for Plaintiff to protect her anonymity is to provisionally lodge her declaration with the Court and file a motion to seal the filing.

The Court therefore CONTINUES the hearing on this matter so that Plaintiff may submit evidence to support her arguments. Accordingly, Plaintiff is ordered to file additional documentation and briefing as well as a motion to seal, which are to be filed and served by September 22, 2022. Moving Defendants may file and serve any reply papers and any opposition to the motion to seal by October 3, 2022, at which point the Court will take the matter under submission.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court