Judge: Lee W. Tsao, Case: 23NWCV01611, Date: 2023-11-14 Tentative Ruling

Case Number: 23NWCV01611    Hearing Date: November 14, 2023    Dept: C

Samantha Sepulveda vs O'Connor's, Inc., et al.

CASE NO.: 23NWCV01611

HEARING:  11/14/23 @ 9:30 a.m.

#5

TENTATIVE ORDER 

Defendant O’Connor’s Inc., dba O’Connor’s Irish Pub, Patrick Fitzgerald and Matthew Fitzgerald’s (collectively “Defendants”) motion to compel arbitration is DENIED.

Moving party to provide notice.

Background

The Complaint alleges that Plaintiff SAMANTHA SEPULVEDA (“Plaintiff”) was employed as a bartender at Defendant O’CONNOR’S, INC., dba O’Connor’s Irish Pub (“O’Connor’s”) from approximately March 25, 2021 to March 2022, when she was wrongfully terminated for complaining about sexual harassment and Labor Code violations. From the time she was hired, Plaintiff suffered sexual harassment at the hands of Defendant PATRICK FITZGERALD (“P. Fitzgerald”), who was the owner of O’Connor’s and was also Plaintiff’s direct supervisor. The conduct began as verbal harassment of a sexual nature and soon escalated into unwanted rubbing, groping, touching, and attempting to kiss Plaintiff. The sexually aggressive conduct continued, and P. Fitzgerald stalked and threatened Plaintiff. His brother, Defendant MATTHEW FITZGERALD (“M. Fitzgerald”) also began stalking behavior with Plaintiff, including threatening male customers who P. Fitzgerald felt were paying too much attention to Plaintiff. The sexual harassment occurred on nearly every shift that Plaintiff worked and continued for the entire course of her employment. Not a day went by where Plaintiff felt safe at work. As a young, single mother, who felt fortunate to be employed during the pandemic, Plaintiff suffered the indignities as long as she could, but finally demanded the conduct stop or she would bring her boyfriend to work for protection. Three days later she was fired.

Based thereon, Plaintiff brings causes of action for: (1) Retaliation; (2) Wrongful Termination in Violation of Public Policy; (3) Work Environment Harassment against O’Connors, Inc.; (4) Work Environment Harassment Alleged against Patrick Fitgerald; (5) Failure to Prevent Harassment, Discrimination or Retaliation against O’Connors, Inc.; (6) Failure to Pay Overtime Wages; (7) Failure to Provide Meal Periods; (8) Failure to Provide Rest Periods; (9) Waiting Time Penalties; (10) Intentional Infliction of Emotional Distress; and (11) Defamation. Named as Defendants are O’Connor’s, P. Fitzgerald, and his brother, M. Fitzgerald. Defendants seek to compel arbitration that Defendants contend was voluntary and not a condition of employment.

Legal Standard

“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, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for rescission of the agreement.” (Code Civ. Proc., §§ 1281.2(a)-(b).) As with other types of agreements, “[t]he failure of the [party] to carefully read the agreement and the amendment is not a reason to refuse to enforce the arbitration provisions.” (Powers v. Dickson, Carlson & Campillo (1997) 54 Cal.App.4th 1102, 1115.) “California law, ‘like [federal law], reflects a strong policy favoring arbitration agreements and requires close judicial scrutiny of waiver claims.’” (Wagner Const. Co. v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 31.) If the court orders arbitration, then the court shall stay the action until arbitration is completed.  (See Code Civ. Proc., § 1281.4.) 

Discussion

Defendants contend that because the Arbitration Agreement concerns interstate commerce, it must be enforced under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”). (Mot., p. 6.)

“Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, ... 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(a).) Additionally, the FAA mandates that the Court will make the determination about the validity and applicability of any arbitration agreement which deals with sexual harassment or assault. (Id. at § 402(b).)

Here, Plaintiff’s claims clearly relate to and allege sexual harassment. As such, they are exempt from arbitration, because Plaintiff elects to have them tried before a jury. (Sepulveda Decl. ¶18.) Under 9 U.S.C. 9 U.S.C. § 402(b) this Court may rule on the applicability of the arbitration agreement.

Conclusion

Accordingly, Defendant’s motion to compel arbitration is DENIED.

Moving party to provide notice.