Judge: Jon R. Takasugi, Case: 23STCV02258, Date: 2023-12-07 Tentative Ruling

Case Number: 23STCV02258    Hearing Date: December 7, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendant’s motion to compel arbitration is CONTINUED, to allow for an evidentiary hearing to be held.

            On 2/1/2023, Plaintiff Maria Santibanez Jauregui (Plaintiff) filed suit against Defendants Gen Torrance, LLC and Gabriel Cortez (collectively, Defendants). On 5/11/2021, Plaintiff filed a first amended complaint (FAC) alleging: (1) sexual harassment; (2) sexual discrimination; (3) failure to take all reasonable steps to prevent harassment and discrimination; (4) retaliation; (5) intentional infliction of emotional distress (IIED); (6) negligent hiring, supervision, and/or retention; (7) failure to provide meal periods; (8) failure to authorize and permit rest periods; (9) failure to pay minimum wages; (10) failure to pay overtime wages; (11) failure to furnish accurate itemized wage statements; (12) failure to maintain required records; and (13) failure to indemnify employees for necessary expenditures incurred to discharge of duties.

            Now, Defendant moves to compel Plaintiff to arbitrate her Complaint, and stay this action pending the completion of arbitration.

Legal Standard

Where the Court has determined that an agreement to arbitrate a controversy exists, the Court shall order the petitioner and the respondent to arbitrate the controversy …unless it determines that…  grounds exist for rescission of the agreement.” (Code Civ. Proc., § 1281.2.) Among the grounds which can support rescission are fraud, duress, and unconscionability. (Tiri v. Lucky Chances, Inc. (2014) 226 Cal.App.4th 231, 239.) The Court may also decline to compel arbitration wherein there is possibility of conflicting rulings on a common issue of law or fact. (Code Civ. Proc., § 1281.2 (c).)

Discussion

The party moving to compel arbitration “bears the burden of proving [the] existence [of an arbitration agreement] by a preponderance of the evidence.” (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413.) The moving party also bears the burden of demonstrating that the claims fall within the scope of the arbitration agreement. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.)

Defendant submitted evidence that Plaintiff electronically signed an Employment-At-Will & Arbitration Agreement, that included a binding arbitration policy, on 8/26/2021. (Gonzalez Decl., Exh. A.)

However, as preliminary matter, Defendant has not signed the document submitted.

Second, in opposition, Plaintiff submitted a declaration stating that her highest level of education is sixth grade in Mexico, that her native and only language is Spanish, and that she does not read, write, or understand English. (Plaintiff Decl. ¶ 4.) Plaintiff further states that:

On or about August 26, 2021, I remember Gen Torrance Assistant Manager Emma (last name unknown) (“Emma”) electronically providing me with onboarding documents via a document management software program. Due to our prior discussions, Emma knew that I do not speak, read, or understand English. After Emma sent me the onboarding documents to sign, she then called me to translate the contents of certain documents because the documents were written wholly in English. Emma failed to translate or explain the contents of the Arbitration Agreement to me. Once Emma finished explaining the contents of my other onboarding documents, she simply instructed me to sign the Arbitration Agreement without further explanation. When I asked Emma what the document was that I was asked to sign, Emma told me that she does not know legal language and could not explain it to me. 

(Plaintiff Decl. ¶ 6.)

To support her contention that her manager was aware that she was exclusively a Spanish speaker and could not read or understand English (and thus always provided communications in Spanish), Plaintiff submitted a separate document given to her on 10/10/2021 which was written entirely in Spanish. (Plaintiff Decl., Exh. A.) 

It is well-established that procedural unconscionability results when an employer offers an adhesion contract in English to an employee known to lack English proficiency without explaining the nature of the agreement. (Nunez v. Cycl[ad] Management, LLC (2022) 77 Cal.App.5th 276, 284; see also Penilla v. Westmont Corp. (2016) 3 Cal.App.5th 205, 209 (“Procedural unconscionability arises when an arbitration agreement ‘was neither provided in a Spanish language copy nor explained to respondents who did not understand written English.’”).

An evidentiary hearing is necessary to determine the circumstances of Plaintiff’s signing, and whether or not she had a reasonable opportunity to discover the contents of the arbitration agreement. 

            Based on the foregoing, Defendant’s motion to compel arbitration is continued to allow an evidentiary hearing to be held.

It is so ordered.

Dated:  December    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.  

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Plaintiff’s motion for leave to file a second amended complaint is GRANTED.

            On 2/1/2023, Plaintiff Maria Santibanez Jauregui (Plaintiff) filed suit against Defendants Gen Torrance, LLC and Gabriel Cortez (collectively, Defendants). On 5/11/2021, Plaintiff filed a first amended complaint (FAC) alleging: (1) sexual harassment; (2) sexual discrimination; (3) failure to take all reasonable steps to prevent harassment and discrimination; (4) retaliation; (5) intentional infliction of emotional distress (IIED); (6) negligent hiring, supervision, and/or retention; (7) failure to provide meal periods; (8) failure to authorize and permit rest periods; (9) failure to pay minimum wages; (10) failure to pay overtime wages; (11) failure to furnish accurate itemized wage statements; (12) failure to maintain required records; and (13) failure to indemnify employees for necessary expenditures incurred to discharge of duties.

            Now, Plaintiff moves for leave to file a second amended complaint (SAC).

Discussion 

            Plaintiff seeks leave to amend to add additional facts about the alleged sexual harassment by Defendant Gabriel Eduardo Tovar, in order to oppose Defendant’s pending motion to compel arbitration.

            One of Plaintiff’s grounds for opposing Defendant’s motion to compel further is based on the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (EFAA). Under the EFAA, claims of sexual harassment occurring after March 3, 2022 may not be compelled to arbitration. (See Johnson v. Everyrealm, Inc. (S.D.N.Y., Feb. 24, 2023, No. 22 CIV. 6669 (PAE)) 2023 WL 2216173, at *10. (“The EFAA applies only to claims that accrued on or after March 3, 2022, the day President Biden signed the EFAA into law; it does not have retroactive effect.”).)

            Here, Plaintiff seeks to add allegations to show that she has suffered harassment past 3/2/2022, to “ensure that Plaintiff does not risk her claims being wrongfully compelled to arbitration on the basis of the accrual date.” (Motion, 6: 24-25.)

            In opposition, Defendant argues that Plaintiff is attempting to violate the sham pleadings doctrine, given that “Plaintiff has already filed two separate Complaints that both specifically allege that she suffered sexual harassment before March 3, 2022.” (Opp., 1: 14-15.)

            However, the Court accepts well-pled allegations as true at the pleading stage. Plaintiff remains a current employee of Defendant, and submitted a declaration that she has continued to experiencing ongoing harassment by Tovar since the time she filed her initial complaint. As such, Plaintiff has offered a plausible explanation for why these allegations were not included in previous versions of her Complaint. Accepted as true, these allegations could show that she has experienced harassment after March 3, 2022, and are not inconsistent with her previous allegations.

            The policy favoring leave to amend is so strong that it is an abuse of discretion to deny an amendment unless the adverse party can show meaningful prejudice. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.)

            Here, the motion to compel arbitration was continued to allow for an evidentiary hearing to be held. Moreover, this action is in its infancy, and trial is not until February 2023. As such, the Court finds no evidence of meaningful prejudice if leave to amend is granted.

            Based on the foregoing, Plaintiff’s motion for leave to file a second amended complaint is granted.

It is so ordered.

Dated:  December    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  For more information, please contact the court clerk at (213) 633-0517.