Judge: Nick A. Dourbetas, Case: 23-01308080, Date: 2023-08-04 Tentative Ruling

1. Petition to Compel Arbitration
2. Case Management Conference

Defendant IdealTax, Inc.’s petition to compel arbitration is GRANTED.  (Code Civ. Proc., § 1281.2.)  Plaintiff Rachel Labazio shall submit her claims against defendant to binding arbitration pursuant to their agreement.

This action is stayed pending completion of arbitration.  (Code Civ. Proc., § 1281.4.)  The Court sets a Status Conference re: binding arbitration for October 7, 2024 at 9 AM. 

*** CMC for today’s date is accordingly vacated. ***

The Court has not considered the declarations provided with the Reply.  (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538 [new evidence presented for the first time on Reply ordinarily not considered, unless the opposing party has notice and an opportunity to respond].)

Defendant met its burden to show a written arbitration agreement exists that applies to plaintiff’s claims.  (Code Civ. Proc., § 1281.2; see also Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413 [elements]; Hyundai Amco America, Inc. v. S3H, Inc. (2014) 232 Cal.App.4th 572, 577 [“filing of a lawsuit rather than commencing arbitration proceedings as required by the agreement affirmatively establishes … refusal to arbitrate the controversy”]; Ex. 1 to Petition, first and second paragraphs.)  Plaintiff does not dispute executing the arbitration agreement, or that it applies to her claims alleged in this action.

Plaintiff has not shown grounds to deny enforcement.  (Code Civ. Proc., § 1281.2, subd. (b).)  Plaintiff contends that she is not required to arbitrate this action pursuant to 9 U.S.C.A., § 402, subd. (a), part of the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” [“EFAA” or “Act”].  However, the EFAA applies only to claims that “accrued” after its 3-3-22 enactment.  (2022 Acts. Pub.L. 117-90, 136 Stat. 26, § 3 [“This Act, and the amendments made by this Act … shall apply with respect to any dispute or claim that arises or accrues on or after the date of enactment of this Act”]; Walters v. Starbucks Corp. (S.D.N.Y. 2022) 628 F.Supp.3d 333, 338 [claim under the EFAA accrues when “the plaintiff has a complete and present cause of action”]; see also People v. Avena (1996) 13 Cal.4th 394, 431 [federal district court cases, although not binding, may be considered persuasive authority]; Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 823 [FEHA claim accrues “either when the course of conduct is brought to an end, as by the employer’s cessation of such conduct or by the employee’s resignation, or when the employee is on notice that further efforts to end the unlawful conduct will be in vain”].)

Here, plaintiff’s Complaint alleges that she was terminated on 12-22-21, before the EFAA was enacted effective 3-3-22.  (Complaint, ¶ 14.)  Plaintiff presents no evidence nor argument that any of the alleged conduct underlying her claims occurred after her termination date.  Thus, plaintiff’s claims in this action accrued no later than 12-22-21, “when the course of conduct [was] brought to an end … by the employee’s resignation …”  (Richards v. CH2M Hill, Inc., supra at 823.)  Accordingly, the EFAA is not applicable here.

Moving defendant shall give notice of all the above.