Judge: Maurice A. Leiter, Case: 23STCV16604, Date: 2023-11-09 Tentative Ruling

Case Number: 23STCV16604    Hearing Date: November 9, 2023    Dept: 54

Hearing Date: November 9, 2023

Department 54, Judge Maurice A. Leiter

Motion to Compel Arbitration

Moving Party: Defendants Law Offices of Adam Zolonz, APC and Adam Zolonz

Responding Party: Plaintiff Christina Ramirez

T/R:     DEFENDANTS’ MOTION TO COMPEL ARBITRATION IS DENIED.

DEFENDANTS TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On September 1, 2023, Plaintiff filed a complaint against Defendants, asserting 15 causes of action for Labor Code and FEHA violations.

ANALYSIS

“On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate a 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….”  (CCP § 1281.2.)  The right to compel arbitration exists unless the court finds that the right has been waived by a party’s conduct, other grounds exist for revocation of the agreement, or where a pending court action arising out of the same transaction creates the possibility of conflicting rulings on a common issue of law or fact.   (CCP § 1281.2(a)-(c).)  “The party seeking arbitration bears the burden of proving the existence of an arbitration agreement, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability.”  (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.)

A.           Existence of Arbitration Agreement and Applicable Law

Defendants move to compel arbitration based on the Dispute Resolution Agreement executed by Plaintiff on September 6, 2022. (Decl. Zolonz, Exh. A.) The agreement provides, “I and Law Offices of Adam Zolonz, APC ("the Firm") agree to utilize binding individual arbitration to resolve all disputes that might arise out of or be related in any way to my application for employment and/or employment with the Firm.” (Id.) The agreement states that it is governed by the FAA.

Defendants have met their burden to establish an agreement to arbitrate. The burden shifts to Plaintiff to establish any defenses to enforcement.

B. Enforceability of Agreement

Plaintiff asserts that the agreement is unenforceable under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFASASHA”), which provides, “...at 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(a)).

Plaintiff alleges Defendant made unwanted sexual advances toward her. Plaintiff claims she refused these advances and Defendant committed the FEHA and Labor Code violations in response. Plaintiff asserts the entire action should be exempt from arbitration under EFASASHA. Defendant argues that only the first and fifth causes of action for sexual harassment and retaliation in violation of FEHA are subject to the Act.

No California Court of Appeal cases address this issue; both parties cite only New York federal district court cases in their favor. EFASASHA prohibits forced arbitration of “cases” that “relate” to a sexual assault dispute or sexual harassment dispute. Plaintiff alleges,

Upon hiring Ms. Ramirez, Mr. Zolonz would frequently flirt with Ms. Ramirez. Mr. Zolonz would offer Ms. Ramirez gifts like purses, bonuses, and field side Los Angeles Rams tickets while flirting with Ms. Ramirez. Ms. Ramirez was uncomfortable with this behavior but was afraid to directly confront Mr. Zolonz. Instead, Ms. Ramirez would try to politely rebuff Mr. Zolonz’s advances. Ms. Ramirez also prominently displayed a photo of her boyfriend on her desk to further indicate her lack of romantic interest in Mr. Zolonz. Once Mr. Zolonz caught onto Ms. Ramirez’s rejection, he became hostile toward Ms. Ramirez and Defendants began engaging in routine verbal abuse, including levying increased and unwarranted criticism of Ms. Ramirez’s work to attempt to justify terminating her employment, belittling Ms. Ramirez, refusing to honor Ms. Ramirez’s employment contract, refusing to engage in a good faith interactive process or accommodate Ms. Ramirez when she became disabled and needed medical attention, and terminating her employment.

(FAC 13.)

All causes of action in the operative complaint relate to the alleged sexual harassment of Plaintiff. Plaintiff alleges that Mr. Zolonz treated her much differently before Plaintiff made clear she was uninterested in him romantically. After she rejected his advances, Mr. Zolonz allegedly became antagonistic to Plaintiff by, among other actions, refusing her disability rights and committing Labor Code violations. Under EFASASHA, the arbitration agreement is not enforceable as to any of Plaintiff’s causes of action.

Defendants’ motion is DENIED.