Judge Kerry Bensinger, Case Number: 24STCV08698, Date: 2024-08-27 Tentative Ruling

In June 2023, Plaintiff Maria Abkaria (“Abkarian” or “Plaintiff”) began her employment with Peterson Enterprises LLC d/b/a Geoffreys Malibu (“Geoffreys”) as a Kitchen Manager. Geoffreys is a restaurant business. In August and September 2023, Abkarian made complaints to supervisors and the owner of Geoffreys about experiencing unwelcome sexual overtures, sexual advances, sexual touching, sexual assault and unwanted verbal conduct by a line cook at Geoffreys named Domingo (last name unknown). Abkarian also reported a complaint made by another female employee about Domingo’s unwanted sexual touching as well. Despite complaining about Domingo, no action was taken. Later, in October 2023, Abkarian observed the presence of cockroaches and rats in the Geoffreys kitchen. Concerned the pest issues were serious health and safety code violations, Abkarian informed management. Her concerns were not taken seriously or flat-out denied. On December 6, 2023, Abkarian was terminated from her employment.

On April 8, 2024, Plaintiff filed a complaint against Geoffreys and Domingo for:

1. Hostile Work Environment Sexual harassment in Violation of the Fair Employment and Housing Act;

2. Failure to Prevent Hostile Work Environment Harassment in Violation of Fair Employment and Housing Act;

3. Sex and Gender Discrimination in Violation of Fair Employment and Housing Act;

5. Failure to Prevent Discrimination and Retaliation in Violation of Fair Employment and Housing Act;

10. Violation of Whistleblower Protection Pursuant to California Labor Code § 1102.5;

11. Retaliation and Discrimination in Violation of California Labor Code §§ 6310 and 6311;

On June 28, 2024, Geoffreys (hereafter, “Defendant”) filed this Motion to Compel Arbitration and Stay the Action. Domingo concurrently filed a Joinder to the Motion.

California law incorporates many of the basic policy objectives contained in the Federal Arbitration Act, including a presumption in favor of arbitrability. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 971-72.) Under both the FAA and California law, arbitration agreements are valid, irrevocable, and enforceable, except on such grounds that exist at law or equity for voiding a contract. (Winter v. Window Fashions Professions, Inc. (2008) 166 Cal.App.4th 943, 947.) The petitioner bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, the party opposing the petition then bears the burden of proving by a preponderance of the evidence any fact necessary to demonstrate that there should be no enforcement of the agreement, and the trial court sits as a trier of fact to reach a final determination on the issue. (Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 413.) Pursuant to Code of Civil Procedure section 1281.2, the Court can compel parties to an arbitration agreement to arbitrate their dispute.

The party petitioning to compel arbitration under written arbitration agreement bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, and party opposing petition must meet the same evidentiary burden to prove any facts necessary to its defense. The trial court acts as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence. (Code Civ. Proc., § 1281.2; Provencio v. WMA Securities, Inc. (2005) 125 Cal.App.4th 1028, 1031.)

Plaintiff asserts three objections to the Declaration of Stephen Pan. Defendant asserts six objections to the Declaration of Maria Abkarian. Because the objections are not relevant to the court’s disposition of the motion, the court declines to rule on the parties’ evidentiary objections.

Defendant moves to compel arbitration and stay the proceedings in this matter. Plaintiff admits she signed an agreement to arbitrate claims arising from her employment. However, Plaintiff argues the agreement is unenforceable because the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (the “Act”) applies to all her claims.

Defendant agrees the Act applies to the first and second causes of action but argues the remaining causes of action are not based on sexual harassment allegations and should be arbitrated.

Two issues to decide: (1) whether the Act permits severance and arbitration of non-sexual harassment claims; and (2) if so, which causes of action should be severed, if any?[1] For the reasons discussed herein, the court finds the Act prohibits arbitration of all Plaintiff’s claims.

“In March 2022, President Joseph R. Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the Act) (9 U.S.C. §§ 401, 402), representing the first major amendment of the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.) since its inception nearly 100 years ago.” (Murrey v. Superior Court (2023) 87 Cal.App.5th 1223, 1230.) “Section 402, subdivision (a), of the [EFAA] describes its applicability, stating that effective immediately, predispute arbitration agreements and joint-action waivers in the context of sexual assault or harassment were no longer valid or enforceable.” (Id. at p. 1234.) “[A]t the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, 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, subd. (a).)” (Id. at pp. 1234-35.)

As stated above, the Act invalidates predispute arbitration agreements “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, subd. (a), emphasis added.) The fight centers on the interpretation of “case” as used in the Act. There are two views.[2] The majority of district courts have concluded the Act precludes arbitration of the whole case, so long as the complaint states sexual harassment/assault claim. (Williams v. Mastronardi Produce, LTD., d/b/a Sunset Foods (E.D. Mich. Aug. 22, 2024, No. 23-13302, 2024) 2024 WL 3908718, at *6-7.) This is the stance taken in Johnson v. Everyrealm, Inc. (S.D. N.Y. 2023) 657 F.Supp.3d 535 (Johnson).

Only one district court has reached the opposite conclusion. In Mera v. SA Hospitality Group, LLC (S.D. N.Y. 2023) 657 F.Supp.3d 442 (Mera), the district court enforced the arbitration agreement with respect to those causes of action or claims that were wholly unrelated to sexual harassment or sexual assault. The “wholly unrelated” claims in Mera were representative (i.e., non-personal) wage and hour claims. Unsurprisingly, Defendant advances the approach taken in Mera; Plaintiff advocates for Johnson.

The court finds that the approach in Johnson is more persuasive. As noted by the court in Baldwin v. TMPL Lexington LLC, et al. (S.D.N.Y., Aug. 19, 2024, No. 23 CIV. 9899) 2024 WL 3862150, at *7, the Johnson court relied on dictionary definitions, statutory context, and case law to determine “that the term ‘case’ unambiguously referred to a legal proceeding as an undivided whole, and did not differentiate among the causes of action within it.” As Johnson explains, “the whole case” approach accords with the stated purpose of the Act: to empower claims by sexual harassment and/or assault victims that had been inhibited by proliferating arbitration clauses in employment agreements. Such often effectively left “victims of sexual violence and harassment ... unable to seek justice in a court of law, enforce their rights under state and federal legal protections, or even simply share their experience.” (H.R. Rep. 117-234, at p. 3 (2022); Johnson, 657 F. Supp. at p. 561, fn.22.) Compelling Plaintiff to arbitrate claims unrelated to the sexual harassment[3] and staying the action pending arbitration of those claims would nullify that purpose.

Mera is also distinguishable from this case. Unlike Mera, Plaintiff does not assert claims on behalf of a class. Each of Plaintiff’s twelve causes of action are personal to her and arise from her experiences while employed with Geoffreys. (See Turner v. Tesla, Inc. (N.D. Cal. 2023) 686 F.Supp.3d 917, 926 (distinguishing Mera on ground that “Turner's workplace injury and wage claims relate only to her own experience and employment at Tesla”).) Mera does not change the result.

Kerry Bensinger

Judge of the Superior Court

[1][1] Plaintiff also argues the arbitration agreement is unconscionable. Because the court concludes the Act bars arbitration of all claims, the court need not and does not address Plaintiff’s unconscionability argument.

[2] No federal appellate court has yet to take examine the scope of the Act. As such, the inquiry is aided by federal district court cases.

[3] The court assumes for the sake of argument that Plaintiff asserts claims unrelated to the sexual harassment/sexual assault dispute.