Judge Michael L. Stern, Case Number: 23STCV10282, Date: 2024-01-22 Tentative Ruling

Ruling: Defendants Jack in the Box Inc. and Del Taco LLC’s Motion to Compel Arbitration and Stay Action is DENIED.

Around September 2000, Plaintiff Jane Doe was employed as a store manager by Defendants Jack in the Box Inc. (“Jack”), Del Taco Restaurants Inc. (“Del”) and Del Taco LLC (“Taco”). Plaintiff alleges that she suffered severe sexual harassment, battery and assault at the hands of her supervisor, Defendant Santiago Garcia. Plaintiff alleges she reported the sexual harassment Defendants Marcos Lopez, Carol Zamora, Violet Cueva and Cindy Leger, all of whom held supervisory or human resources positions as Defendants Jack, Del and Taco’s employees. Plaintiff alleges Defendants Lopez, Zamora, Cueva and Leger did not respond to her complaints properly and all Defendants retaliated against her for her complaints, ultimately constructively discharging Plaintiff on May 10, 2022.

On May 8, 2023, Plaintiff Jane Doe filed a complaint on May 8, 2023 against Defendants alleging (1) sexual battery; (2) sexual assault; (3) false imprisonment; (4) gender violence; (5) sexual harassment in violation of FEHA; (6) discrimination based on sex and gender in violation of FEHA; (7) failure to prevent harassment and discrimination from occurring in violation of FEHA; (8) retaliation in violation of FEHA; (9) constructive discharge in violation of public policy; (10) harassment and aiding and abetting in violation of FEHA; (11) negligence; (12) negligent supervision; (13) negligent failure to warn, train or education; (14) IIED and (15) NIED.

On December 21, 2023, Defendants Jack and Taco filed the instant motion to compel arbitration. On January 8, 2024, Plaintiff Jane Doe filed an opposition to the motion to compel. On January 12, 2024, Defendants Jack and Taco filed a reply.

“A written provision in any [] contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (9 U.S.C. § 2.)

“If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.” (9 U.S.C. §3.)

“[T]he United States Supreme Court has identified three categories of activity that Congress may regulate under the commerce power: (1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce and persons or things in interstate commerce, and (3) those activities having a substantial relation to interstate commerce. The party asserting FAA preemption bears the burden to present evidence establishing a contract with the arbitration provision affects one of these three categories of activity, and failure to do so renders the FAA inapplicable.” (Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 238.)

“The FAA applies to contracts that involve interstate commerce (9 U.S.C. §§ 1, 2), but since arbitration is a matter of contract, the FAA also applies if it is so stated in the agreement.” (Davis v. Shiekh Shoes, LLC (2022) 84 Cal.App.5th 956, 963.) In addition, the express incorporation of the FAA for the enforcement of this arbitration agreement incorporates the procedural provisions of the FAA. Under Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, the language regarding enforcement of the arbitration agreement under the FAA incorporates the FAA’s procedural requirements and renders CCP §1281.2(c) inapplicable. (Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 344-345 (arbitration provision providing that “enforcement [of the arbitration agreement] shall be governed by the [FAA]” incorporated procedural provisions of the FAA and trial court erred when it denied the motion to compel per CCP §1281.2(c).)

“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:

(c) 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.” (CCP §1281.2.)

“The trial court may resolve motions to compel arbitration in summary proceedings, in which the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, to reach a final determination. The party seeking arbitration bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability by a preponderance of the evidence.” (Mendoza v. Trans Valley Transport (2022) 75 Cal.App.5th 748, 776 (trial court properly decided plaintiff’s challenge to arbitration agreement despite delegation clause where plaintiff attacked contract formation and very existence of agreement to arbitrate).)

“If a court of competent jurisdiction, whether in this State or not, has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before a court of this State, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.” (CCP §1281.4 (para. 1).)

Plaintiff also submitted a supplemental declaration on January 17, 2024 removing any ambiguity as to the dates on which the events attested to occurred. The Court will consider the supplemental declaration, as it does not make any other substantive changes except to definitely state the date on which the events occurred and it does not change the Court’s analysis.

Defendants Jack and Taco move to compel arbitration of Plaintiff’s individual claims against them. Defendants argue Plaintiff signed valid arbitration agreements on March 16, 2021 and April 22, 2021. Defendants argue Plaintiff voluntarily agreed to arbitrate any and all legal disputes she had with Defendant Taco, including those claims alleged in her May 8, 2023 complaint. Defendants argue the Federal Arbitration Act (“FAA”) applies. Defendant argues that under both the FAA and the California Arbitration Act (“CAA”).

Defendants argue the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “EFAA”) does not apply here, because Plaintiff’s tort injuries purportedly accrued before March 3, 2022, the Act’s effective date.

Defendants argue the arbitration agreement also contains an enforceable delegation clause. Defendants argue any dispute regarding the interpretation, applicability, enforceability or formation of the arbitration agreement must be resolved by the arbitrator. Defendants argue there is no basis to deem the delegation clause unenforceable as unconscionable.

Defendants argue that the arbitration agreement is enforceable, because it satisfies all requirements of Armendariz. Defendants argue the arbitration agreement provides for a neutral arbitrator, allows for more than minimal discovery, requires a written decision by the arbitrator, permits relief otherwise available in court, does not impose unreasonable costs or fees and is bilateral.

Defendants argue the right to arbitration has not been waived. Defendants argue the action should be stayed pending completion of arbitration.

In opposition, Plaintiff argues the EFAA applies to her claims. Plaintiff argues the EFAA became effective on March 3, 2022 and applies to any and all claims relating to sexual assault and sexual harassment disputes. Plaintiff argues each cause of action relates to acts of sexual battery and sexual harassment that took place before and after March 3, 2022. Plaintiff argues EFFA therefore applies and the arbitration agreement is invalid and unenforceable. Plaintiff argues Defendants fail to cite any authority that would allow the Court to find the EFAA inapplicable merely because the acts of sexual harassment and assault spanned several years, occurring before and after March 3, 2022. Plaintiff argues she suffered at least one act of sexual assault and battery after March 3, 2022.

Plaintiff argues the EFAA bars enforcement of the delegation clause, which is part of the unenforceable arbitration agreement under the EFAA. Plaintiff argues there is no authority holding that the delegation clause remains enforceable and valid when the entirety of the arbitration agreement is unenforceable under the EFAA.

Plaintiff argues any public policy arguments by Defendants are trumped by the EFAA. Plaintiff argues forcing her to arbitrate her claims undermines the public policy of protecting victims under the EFAA.

Plaintiff argues that even if the Court chooses to compel arbitration, it should not stay the action as to the remaining claims. Plaintiff argues this would defeat the purpose of the EFAA and allow the employer to drag employees through time consuming and expensive arbitration before facing sexual harassment allegations in court.

On reply, Defendants argue Plaintiff fails to establish with admissible, competent evidence that any of the sexual assaults occurred after March 3, 2022. Defendants argue testimony that an assault occurred “around” March 8, 2022 is inadmissible. Defendants argue Plaintiff admits that no acts of assault occurred after March 8, 2022. Defendants argue Plaintiff cites no authority in support of her argument that her claims accrued after enactment of the EFAA due to a continuing violation.

Defendants argue the Court should hold an evidentiary hearing if it is inclined to deny the motion to compel arbitration. Defendants argue they have satisfied their burden by establishing that Plaintiff executed an arbitration agreement covering her claims and that the arbitration agreement is enforceable.

Defendants ask that the action be stayed pending completion of arbitration. Defendants ask that the Court stay the action pending appeal if it chooses to deny the motion to compel arbitration.

B. Defendants present an arbitration agreement between Defendant Del Taco LLC and Plaintiff that applies to her claims against both Del Taco LLC and Jack in the Box, Inc.

Defendants move to compel arbitration based on the “Mutual Agreement to Arbitrate Claims” acknowledged and accepted by Plaintiff on March 16, 2021 and again on April 22, 2021 (the “Arbitration Agreement”). (Graves Dec., Ex. A.) The Arbitration Agreement does not identify Defendant Jack in the Box, Inc. as a party. The Arbitration Agreement is between Plaintiff and Defendant Del Taco LLC.

However, the Arbitration Agreement between Plaintiff and Del Taco LLC requires arbitration of any claims Plaintiff may have against Del Taco LLC or Del Taco LLC’s “former owners, partners, members, officers, directors, employees, representatives and agents, all subsidiaries and affiliated entities, all benefit plans, and benefit plans’ sponsors, fiduciaries, administrators, affiliates, and all successors and assigns of any of them.” (Graves Dec., ¶¶4-5, Ex. A, ¶1, “Claims Covered by this Agreement.”) Plaintiff does not dispute that Jack in the Box falls in the category of an affiliate entity and/or successor as maintained by Defendants. (Motion, p. 7, fn. 1.)

The Arbitration Agreement expressly states that the FAA governs and applies to it, including its interpretation and enforcement. (Graves Dec., ¶¶4-5, Ex. A, ¶6, “Federal Arbitration Act Governs.”) Plaintiff does not deny that the FAA applies.

The Arbitration Agreement is also a broad-form agreement that applies to Plaintiff’s claims: “The claims covered by this Agreement include, but are not limited to: claims for

breach of any contract or covenant; tort claims; claims for discrimination or harassment (including, but not limited to, race, sex, religion, national origin, age, medical condition, disability or sexual orientation); claims for retaliation; claims for violation of public policy; claims for unpaid wages; and claims for violation of any federal, state, local or other law, statute, regulation or ordinance, including, but not limited to, all claims arising under Title VII of the Civil Rights Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act, the California Fair Employment & Housing Act (and other state’s anti-discrimination laws), the California Labor Code, and/or the Fair Labor Standards Act.” ((Graves Dec., ¶¶4-5, Ex. A, ¶6, “Claims Covered by this Agreement.”)

Defendant therefore establishes the existence of an enforceable arbitration agreement applicable to Plaintiff’s claims. The burden therefore shifts to Plaintiff to raise a defense to enforcement of the arbitration agreement. “The party seeking arbitration bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, and the party opposing arbitration bears the burden of proving any defense, such as unconscionability by a preponderance of the evidence.” (Mendoza, supra, 75 Cal.App.5th at 776 (trial court properly decided plaintiff’s challenge to arbitration agreement despite delegation clause where plaintiff attacked contract formation and very existence of agreement to arbitrate).)

C. Based on a preponderance of the evidence, the EFAA applies to bar enforcement of the arbitration agreement

Plaintiff does not deny that she signed the Arbitration Agreement or that her claims do not come within the scope of the Arbitration Agreement. Instead, Plaintiff argues the Arbitration Agreement is unenforceable under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “EFAA”).

The FAA establishes a “liberal federal policy favoring arbitration agreements,” requiring courts “rigorously to enforce arbitration agreements according to their terms.” (Epic Sys. Corp. v. Lewis, ––– U.S. ––––, 138 S. Ct. 1612, 1621 (2018) (citation omitted). “Employment contracts, except for those covering workers engaged in transportation, are covered by the FAA.” (E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 289 (2018).)

However, on March 3, 2022, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. Pub. L. No. 117-90, 136 Stat. 26 (2022) (codified at 9 U.S.C. § 402) (hereinafter “the EFAA”). “The EFAA amends the Federal Arbitration Act by invalidating any pre-dispute mandatory arbitration clause as it applies to plaintiffs alleging claims of or related to workplace sexual harassment.” (Hodgin v. Intensive Care Consortium, Inc. (March 31, 2023) --- F.Supp.3d ---, 2023 WL 2751443, at *1.)

Pursuant to 9 U.S.C. §402(a), “Notwithstanding any other provision of this title, 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.” Subsection 402(b), “[a]n issue as to whether this chapter applies with respect to a dispute shall be determined under Federal law.”

Pursuant to 9 U.S.C. §401(4) defines “sexual harassment dispute” as follows: “The term ‘sexual harassment dispute’ means a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Triable or State law.” Pursuant to 9 U.S.C. §401(3) defines “sexual assault dispute” as a “dispute involving a nonconsensual sexual act or sexual contact, such terms are defined in section 224 of title 18 or similar applicable Tribal or State law, including when the victim lacks capacity to consent.”

In a marginal note to the EFAA, Congress provided that the provisions of the Ending Forced Arbitration Act would “apply with respect to any dispute or claim that arises or accrues on or after the date of enactment of this Act [March 3, 2022].” Pub. L. No. 117-90, § 3, 136 Stat 26, 28 (2022). There is some debate regarding whether the Act applies to cases that were filed after its enactment regardless of when the underlying sexual harassment or assault took place. (Murrey v Supr. Ct. (2023) 87 Cal.App.5^th 1223, 1235 (“there is some debate about whether it matters when the underlying sexual harassment or assault took place”).)

“The EFAA applies only to claims that accrued on or after March 3, 2022, the day President Biden signed the EFAA into law; it does not have retroactive effect…The limited case authority to date under the EFAA, all from district courts, has solely concerned whether it applies retroactively and whether the claims at issue in those cases accrued after March 3, 2022. See, e.g., Marshall v. Hum. Servs. of Se. Texas, Inc., No. 21 Civ. 529 (MAC), 2023 WL 1818214, at *3 (E.D. Tex. Feb. 7, 2023) (EFAA not retroactive; affirming arbitration award related to claims that accrued before March 3, 2022); Zuluaga v. Altice USA, No. A-2265-21, 2022 WL 17256726, at *5 (N.J. Super. Ct. App. Div. Nov. 29, 2022) (per curiam) (compelling arbitration of claims that accrued before March 3, 2022); Woodruff v. Dollar Gen. Corp., No. 21 Civ. 1705 (GBW), 2022 WL 17752359, at *3–4 (D. Del. Dec. 19, 2022) (same); Steinberg v. Capgemini Am., Inc., No. 22 Civ. 489 (JRS), 2022 WL 3371323, at *2 (E.D. Pa. Aug. 16, 2022) (same); Walters, 2022 WL 3684901, at *3 (same); Newcombe-Dierl, 2022 WL 3012211, at *5; see also Zinsky, 2022 WL 2906371, at *3–4 (compelling arbitration as to parties to arbitration agreement, but not as to nonparties); Bushey v. Home Direct Logistics, LLC, No. UWY-CV-21-6061586 S, 2022 WL 2298419, at *4 n.4 (Conn. Super. Ct. June 24, 2022) (citing 9 U.S.C. § 402 in passing as example of recent “chinks in the armor” of national policy favoring arbitration); cf. Pepe v. N.Y. Life Ins. Co., No. 22 Civ. 4005 (SSV), 2023 WL 1814879, at *4 n.19 (E.D. La. Feb. 7, 2023) (holding EFAA not to apply where complaint's factual allegations and two references to “harassment” did not describe sexual harassment).” (Johnson v. Everyrealm, Inc. (Feb. 24, 2023) --- F.Supp. ---, 2023 WL 2216173, at *10.)

A claim normally “accrues” when the plaintiff has a “complete and present cause of action.” (Rotkiske v. Klemm, --- U.S. ---, 140 S. Ct. 355 (2019); Walters v. Starbucks Corp. (2022) 623 F.Supp.3d 333, 337-338. Whether “dispute” and “claim” are one and the same under §3 of the EFAA is unsettled. In Walters, supra, 623 F.Supp.3d at 339, the court found that “dispute” and “claim” were one and the same and the date they “arose” or “accrued” was the date on which the plaintiff had a complete and present cause of action. (Id. at 338.)

The district court in Hodgin v. Intensive Care Consortium, Inc. (March 31, 2023) --- F. Supp. ---, 2023 WL 2751443 disagreed, finding that “dispute” and “claim” were distinct concepts and the EFAA applied to cases where the “dispute arose” or the “claim accrued” after the enactment date. While the district court in Hodgin agreed with Walters’ analysis of when a “claim” “accrued” as the date on which a plaintiff has a “complete and present cause of action,” the district court also found that the EFAA would apply to a “dispute” that “arose” on or after the enactment date. The court reasoned that “a dispute entails a disagreement, not just existence of an injury (which would be the claim accruing). At first blush then, one might think that is when the lawsuit is filed. But ‘dispute’ is a broad term that encompasses other forums…Thus, to say that a dispute arises only once a lawsuit is filed is far too limiting.” (Hodgin, supra, 2023 WL 2751443, at *2.) The Hodgin court ultimately found that the plaintiff’s “dispute” arose when she filed Charges of Discrimination against her employer with the EEOC in January 2022, before the enactment date. (Id.; see also Silverman v. DiscGenics, Inc. (March 13, 2023) 2023 WL 2480054, at *2 (plaintiffs’ pretermination claims “arose” when they filed charges of discrimination with the Utah Antidiscrimination and Labor Division).) Her claims were therefore outside of the EFAA. (Id.)

ii. Pursuant to 9 U.S.C. §402(b), the Court must determine the applicability of the EFAA, not the arbitrator irrespective of the delegation clause in the Arbitration Agreement

“An issue as to whether this chapter applies with respect to a dispute shall be determined under Federal law. The applicability of this chapter to an agreement to arbitrate and the validity and enforceability of an agreement to which this chapter applies shall be determined by a court, rather than an arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement, and irrespective of whether the agreement purports to delegate such determinations to an arbitrator.” (9 U.S.C. §402(b).)

The Arbitration Agreement contains a delegation clause: “The arbitrator shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement, including but not limited to any claim that all or any part of this Agreement is void or voidable.” (Graves Dec., Ex. A, ¶7, “Arbitration Procedures.”) However, 9 U.S.C. §402(b) specifically states that the Court must determine the applicability of the EFAA the Arbitration Agreement “irrespective of whether the agreement purports to delegate such determinations to an arbitrator.” As such, this Court must resolve whether the EFAA applies here.

iii. Plaintiff establishes her case “relates to” a “sexual harassment dispute” and a “sexual abuse dispute” under 9 U.S.C. 402(a) and that at least some of her claims and disputes arose and accrued after the EFAA was enacted on March 3, 2022.

Plaintiff alleges 15 causes of action and the date on which the dispute or claim arose or accrued varies depending on the cause of action, because the conduct upon which each claim is based varies. (Turner v. Tesla (August 11, 2023) – F.Supp.3d –, 2023 WL 6150805, at *4 (“The reference point for the accrual of Turner's claims varies based on the cause of action”; where claims were based on plaintiff’s termination and termination occurred on September 14, 2022, and accrual date was after EFAA went into effect).) For example, Plaintiff’s 1^st and 2^nd causes of action for sexual battery and sexual battery causes of action are based directly on Defendant Garcia’s physical battery and assault, while Plaintiff’s 7^th cause of action for “failure to prevent harassment and discrimination” in violation of FEHA against corporate Defendants is based on corporate Defendants’ and other supervisor Defendants’ failure to respond to Plaintiff’s complaints about Garcia’s sexual battery and assault. However, as to all causes of action, they accrued and arose in full or in part after the EFAA’s enactment date.

Based on the complaint, Plaintiff’s claims based on Defendants’ failure to respond to her complaints, Defendants’ retaliation against her after she complained and Defendants’ alleged constructive discharge all arose or accrued after March 8, 2022, the date Plaintiff alleges she first reported Defendant Garcia’s action to Defendant Leger. (Complaint, ¶¶43-53; Opposition, DOE Dec., ¶¶3, 4 and 6.) Defendants’ wrongful response to Plaintiff’s complaints of Garcia’s sexual assault and harassment culminated in her alleged constructive termination in May 10, 2022, well after the EFAA’s enactment date of March 3, 2022. (Complaint, ¶53; Motion, DOE Dec., ¶6.)

Defendants offer no evidence challenging Plaintiff’s alleged timeline or her declaration that around March 8, 2022, she complained to other supervisors about Defendant Garcia or that Defendants retaliated against her from March 8, 2022 through May 10, 2022. Defendants failure to submit evidence on the issue is notable, given that they should have a record of when Plaintiff complained to them about Defendant Garcia’s conduct.

As such, the following claims based entirely on Defendants’ actions or inaction after she complained on March 8, 2022 could only have arisen or accrued after the EFAA was enacted: the 6^th cause of action for discrimination, the 7^th cause of action for failure to prevent harassment under FEHA, the 9^th cause of action for constructive discharge and the 10^th for harassment and aiding and abetting in violation of FEHA. These causes of action are also “sexual harassment disputes” or “sexual abuse disputes,” even though they are not based directly on Garcia’s sexual battery or assault of Plaintiff. Based on the definitions of “sexual harassment disputes” and “sexual abuse disputes” under 9 U.S.C. §401(3) and (4), such disputes need only “relate to” conduct that qualifies as sexual harassment and/or sexual abuse.

As such, based on the 6^th cause of action for discrimination, the 7^th cause of action for failure to prevent harassment under FEHA, the 9^th cause of action for constructive discharge and the 10^th for harassment and aiding and abetting in violation of FEHA alone, Plaintiff’s “case” is “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).) These claims or disputes also arose or accrued after enaction of the EFAA on March 3, 2022.

Any assertion that the EFAA only applies to specific claims, as opposed to an entire case, is unsupported by the plain language of the 9 U.S.C. 402(a) and persuasive case authority. “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…relates to the sexual assault dispute or the sexual harassment dispute.” (9 U.S.C. §402(a).)

Whether the EFAA applies to a sexual harassment claim only or the entire case was analyzed in Johnson, supra, 2023 WL 2216173, at *15-17. Under Johnson, the EFAA makes a pre-dispute arbitration agreement invalid and unenforceable with respect to the “entire case.” (Id.) “This text is clear, unambiguous, and decisive as to the issue here. It keys the scope of the invalidation of the arbitration clause to the entire ‘case’ relating to the sexual harassment dispute. It thus does not limit the invalidation to the claim or claims in which that dispute plays a part.” (Id.) “[T]he Court holds that, where a claim in a case alleges ‘conduct constituting a sexual harassment dispute’ as defined, the EFAA, at the election of the party making such an allegation, makes pre-dispute arbitration agreements unenforceable with respect to the entire case relating to that dispute.” (Id. at *19.)

In addition, Johnson reasoned that Congress intended to “override the FAA’s background principle that, in cases involving both arbitrable and non-arbitrable claims, the former must be sent to arbitration even if this will lead to piecemeal litigation,” because the EFAA amended the FAA directly rather than amending a separate statute, e.g. Title VII. (Id. at *18; cf. Silverman v. DiscGenics, Inc. (Mar. 13, 2023) 2023 WL 2480054, at *3 (court could not retain jurisdiction over pretermination claims that accrued before EFAA enactment date based on FAA’s general mandate that an arbitration agreement must be enforced even if piecemeal resolution is required).) “In this respect, the EFAA, which applies to all arbitration agreements covered by the FAA, contrasts with statutory provisions more selectively invalidating arbitration agreements.” (Id. at *19.)

Even as to those claims that are based in whole or in part directly on Garcia’s sexual assault and battery, Plaintiff’s evidence and complaint sufficiently establish that Garcia’s sexual assault and battery continued through March 7 or 8, 2022. (Complaint, ¶42; Opposition, DOE Dec., ¶2; Supplemental DOE Dec. filed January 17, 2024, ¶2.) Defendants fail to submit any evidence challenging either Plaintiff’s testimony or her allegations to this effect. Even if some of Garcia’s acts predated the EFAA’s enactment date on March 3, 2022, Plaintiff’s claims are based on every single one of Garcia’s instances of sexual abuse and assault. If the Court parsed Plaintiff’s sexual assault and battery claims as Defendants ask, Plaintiff’s sexual assault and battery claims based on the March 7 or 8, 2022 sexual assault arose or accrued on that date. Plaintiff could have filed separate causes of action for sexual assault and battery for each instance of battery and assault but chose to allege them collectively.

Thus, based on the 6^th cause of action for discrimination, the 7^th cause of action for failure to prevent harassment under FEHA, the 9^th cause of action for constructive discharge and the 10^th for harassment and aiding and abetting in violation of FEHA alone, Plaintiff establishes that the EFAA Arbitration Agreement is invalid and unenforceable as to her “case” pursuant the EFAA. In addition, Plaintiff’s claims based solely and directly on Garcia’s multiple instances of sexual battery and harassment are subject to the EFAA, because the last act of sexual assault and harassment allegedly occurred on March 7 or 8, 2022.

Defendants’ Motion to Compel Arbitration and to Stay Action Pending Arbitration is DENIED based on 9 U.S.C. 402(a).

Defendants’ Motion to Compel Arbitration and Stay Action Pending Arbitration is DENIED.

[1] In analyzing the EFAA, the Court relies on the authority of lower district courts interpreting the EFAA as persuasive authority. There is also “[T]he decisions of the lower federal courts on federal questions are merely persuasive.... Where lower federal court precedents are divided or lacking, state courts must necessarily make an independent determination of federal law.” (Fair v. BNSF Railway Co. (2015) 238 Cal.App.4th 269, 287.) Defendant