Judge: Lynne M. Hobbs, Case: 24STCV05794, Date: 2024-08-08 Tentative Ruling

Case Number: 24STCV05794    Hearing Date: August 8, 2024    Dept: 61

JANE DOE, 1 vs THE MAYBOURNE BEVERLY HILLS, et al.

TENTATIVE  

Defendant The Maybourne Beverly Hills Operator, LLC’s Motion to Compel Arbitration is DENIED.

Plaintiff to provide notice.

DISCUSSION

I. OBJECTIONS

Plaintiff Jane Doe’s objections to the declaration of Brent Morris concerning the authenticity of the arbitration agreement are OVERRULED. Defendant Maybourne Beverly Hills Operator, LLC’s objections to the declaration of Plaintiff concerning her memory of the arbitration agreement are also OVERRULEDII.II.  JUDICIAL NOTICE

II.  JUDICIAL NOTICE

The Request for Judicial Notice is GRANTED.  

III.  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 Maybourne Beverly Hills Operator LLC (Defendant) moves to compel arbitration of the claims in Plaintiff Jane Doe’s (Plaintiff) Complaint for FEHA sexual discrimination and harassment and wrongful termination. Defendant presents an arbitration agreement executed by Plaintiff on June 9, 2020, which states that Plaintiff and Defendant agree to arbitrate “all disputes that may arise out of or is [sic] related in any way to my employment with Company, including but not limited to the termination of my employment and my compensation.” (Terzyan Decl. Exh. B.)

Plaintiff in opposition argues that this arbitration agreement is unenforceable under 9.U.S.C. § 402, otherwise known as Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA). (Opposition at pp. 5–10.) Plaintiff argues that the arbitration agreement is unconscionable in both its unlimited duration and its inequitable extension of coverage to Defendant’s affiliated entities. (Opposition at pp. 10–13.) And Plaintiff argues that the motion must be denied in order to prevent inconsistent rulings as to the defendants who do not move to compel arbitration. (Opposition at pp. 13–15.)

The EFAA 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).) Although federal law governs the determination of the statute’s applicability to a given case (See 9 U.S.C. § 402, subd. (b)), the phrase “sexual harassment dispute” is defined in another section as follows:

The term “sexual harassment dispute” means a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.

(9 U.S.C. § 401, subd. (4).)

Under California law, “the prohibition against sexual harassment includes protection from a broad range of conduct, ranging from expressly or impliedly conditioning employment benefits on submission to or tolerance of unwelcome sexual advances, to the creation of a work environment that is hostile or abusive on the basis of sex.” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 277.) Under Government Code § 12940, subd. (j)(4)(C), harassment “because of sex” includes “sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.” Plaintiff’s claims here, sounding in discrimination and harassment based on sex, fit the definition of sexual harassment under California state law, and thus under the EFAA.

Although Defendants argue that the EFAA was targeted to prevent the forced arbitration of cases involving harassment founded upon lewd or lascivious motives (Reply at p. 1), it is “applicable . . . State law” which determines the definition of sexual harassment dispute here, and the applicable California law not only includes harassment based on pregnancy within its definition, but clarifies that “[s]exually harassing conduct need not be motivated by sexual desire.” (Gov. Code § 12940, subd. (j)(4)(C).) Defendant cites a federal case for the opposite position, but this case was not applying California authority. (Cornelius v. CVS Pharmacy, Inc. (D.N.J., Oct. 18, 2023, No. CV2301858SDWAME) 2023 WL 6876925, at *3–4.)

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.)

Plaintiff has alleged a viable FEHA harassment claim here. Plaintiff alleges that after informing her employer of her pregnancy, she was subject to comments suggesting that she could not be a “career woman” once she had children, was told by a company director that as a mother her priorities would always be outside of work, and when she complained of this behavior, she was met with false accusations of a sexual relationship with a coworker. (Complaint ¶¶ 15g–h, 15x–16a.) Plaintiff also alleges discriminatory personnel actions that contributed to a hostile work environment, such as the deliberate ignoring of Plaintiff’s applications for promotion, unequal compensation based on gender, and a termination in retaliation for complaints of harassment. (See Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 710 [“[T]he FEHA treats discrimination and harassment as distinct categories, but nothing in the FEHA requires that the evidence in a case be dedicated to one or the other claim but never to both.”].)

The applicability of 9 U.S.C. § 402 forecloses enforcement of the arbitration agreement as to all claims alleged here. The prohibition on enforcing arbitration agreements applies to “a case which . . . relates to the . . . sexual harassment dispute,” not the particular sexual harassment claim. (9 U.S.C. § 402, subd. (a); see Johnson v. Everyrealm, Inc. (S.D.N.Y., 2023) 2023 WL 2216173, at *1 [holding prohibition on arbitrating sexual harassment disputes applied to “entire case”].) Defendant’s argument that this court should sever the harassment claims ignores the statutory text and rests solely upon the policy of enforcing arbitration agreements. (Reply at p. 6.) These general policies weigh little against the specific policy evidenced in the text of the EFAA.

The motion is therefore DENIED.