Judge: Maurice A. Leiter, Case: 24STCV05054, Date: 2024-07-08 Tentative Ruling

Case Number: 24STCV05054    Hearing Date: July 8, 2024    Dept: 54

Hearing Date: July 8, 2024

Department 54, Judge Maurice A. Leiter

Motion to Compel Arbitration and Stay Proceedings

Moving Party: Defendants Retirement Housing Foundation, Foundation Property Management, and Las Alturas RHF Housing Partners, LP

Responding Party: Plaintiff Priscilla Moreno

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

THE ACTION IS STAYED.

DEFENDANT RHF TO GIVE 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

This is a wrongful termination case between Plaintiff Priscilla Moreno and Defendants Retirement Housing Foundation, Foundation Property Management, and Las Alturas RHF Housing Partners, LP (collectively “RHF”).  Generally, Plaintiff alleges that she was subjected to age discrimination and that she opposed elder abuse she witnessed. Plaintiff also claims she opposed fraud committed by RHF, which falsely claimed they had performed services for a longer period than they had. The operative  First Amended Complaint alleges nine causes of action: (1) Retaliation in Violation of Gov’t Code § 12940(h); (2) Retaliation in Violation of Labor Code § 1102.5(b); (3) Wrongful Termination in Violation of Public Policy; (4) Defamation (Civ. Code §§ 45, 45a, 46); (5) Age Discrimination in Violation of FEHA (Gov’t Code § 12940(h)); (6) Failure to Permit Inspection of Employee Records (Cal. Lab. Code § 226); (7) Failure to Prevent Discrimination and Retaliation (Gov’t Code § 12940(k)); (8) Hostile Work Environment (Gender) in Violation of Gov’t Code § 12940(j)(1); and (9) Discrimination (Gender) in Violation of Gov’t Code § 12940(a).

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

            Defendant moves to compel arbitration based on the Arbitration Agreement between Plaintiff and RHF, dated June 25, 2018. The agreement provides, in pertinent part, “any and all disputes arising out of relating to Employee’s employment with the Company, or the termination of that employment, shall be submitted to final and binding arbitration. Such disputes shall include, but are not limited to, any claim of harassment of discrimination in violation of any federal or state law, or any other aspect of Employee’s compensation, employment, or the termination of employment . . . as may arise between the Employee and Company or its parent, subsidiaries, affiliates or agents . . . “  (Id.)

This action arises out of Plaintiff Moreno’s employment and termination from that employment. Defendant has demonstrated the existence of an arbitration agreement.

B. Applicability of the FAA and Amendment Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA)

            Plaintiff argues that the pre-dispute arbitration agreement is invalid under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, 9 USC §§ 401-402 (“EFAA”). The EFAA states: “At the election of the person alleging conduct constituting sexual harassment dispute or sexual assault dispute . . .  no pre-dispute arbitration agreement. . . . shall be 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 USC ¶-402(a).) Plaintiff contends that her claim for gender-based hostile work environment is a “sexual harassment dispute” under California Law because FEHA defines sexual harassment broadly. Plaintiff says that the harassing conduct “need not have anything to do with sexual advances.” (Acardi v. Superior Court (1993) 17 Cal.App.4th 341, 348.)

Plaintiff has not alleged a sexual harassment cause of action subject to the EFAA. Her claims based on gender-based hostile work environment are not sexual harassment claims. Plaintiff has alleged a single occasion – May 12, 2023 – on which she was told she was “too old for her position, forgetful” and was asked about her “hormones.” (First Amended Complaint (“FAC”) ¶ 20.) She allegedly received a separate comment a month later that “All this crying stuff has to go.” (FAC ¶ 21.) Plaintiff does not allege that the second comment bore any connection to Plaintiff’s age, gender, or medical condition. These comments do not rise to the level of an actionable claim for sexual harassment. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1044.)

C. Enforceability

Plaintiff argues that the agreement is procedurally and substantively unconscionable. As the agreement was presented on a take it or leave it basis, there is a low degree of procedural unconscionability. But this alone does not render the arbitration agreement unconscionable. To find the agreement unenforceable, the degree of substantive unconscionability must be high. (See Dotson v. Amgen, Inc. (2010) 181 Cal.App.4th 975, 981.)

Plaintiff also asserts that the agreement is procedurally unconscionable because Defendant did not provide Plaintiff with a copy of the applicable arbitration rules. Defendant argues that the rules were readily available on the internet and accessible to the public. Defendant cites Lane v. Francis Capital Mgmt. LLC (2014) 224 CA 4^th 676, 691, in which the court found that procedural unconscionability may be lessened where the applicable rules are readily available on the internet. Here, the Agreement also provides that a copy of the rules would be produced to the employee on request, but Plaintiff never requested a copy. This does not raise the level of procedural unconscionability. 

Plaintiff argues the agreement is substantively unconscionable because it lacks mutuality by only covering claims the employee is likely to bring against the employer. But the Agreement states that it governs “any and all disputes arising out of or relating to Employee’s employment with the Company. . .” Plaintiff does not demonstrate how this language shows non-mutuality.  Plaintiff has failed to establish a high degree of substantive unconscionability.

Defendant’s motion to compel arbitration is GRANTED; the Action is STAYED.