Judge: Peter A. Hernandez, Case: 24STCV13618, Date: 2024-10-10 Tentative Ruling
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Case Number: 24STCV13618 Hearing Date: October 10, 2024 Dept: 34
Defendant Platinum
Security Inc.’s Motion to Compel Arbitration is DENIED.
Background
Plaintiff
Chandi Davis (“Plaintiff”) alleges as follows:
In April 2022, Plaintiff began working for Defendant
Platinum Security Inc. (“Platinum”) as a private security guard patrolling the
parking structures of Los Angeles City Hall.
Plaintiff was the only female security guard working
in her location and suffered from gender discrimination and sexual harassment
from her colleagues. Specifically, Plaintiff’s supervisor, Emmanuel Alvarez
(“Alvarez”), constantly questioned Plaintiff’s ability to perform her job based
on her gender.
Additionally, in late September 2022, Plaintiff assisted
co-worker “Raymond” with his patrolling shift. Defendant Ricardo Ortiz
(“Ortiz”), a shift supervisor, performed a typical quality check when Plaintiff
and Raymond were together in the patrolling vehicle.
Plaintiff returned later in the day for another work
shift. As soon as she clocked in, Raymond approached Plaintiff and informed her
that Ortiz had asked him whether Raymond and Plaintiff had a sexual
relationship after he saw them together in the patrolling car. Raymond
explained that he told Ortiz that there was no sexual relationship between
Plaintiff and Raymond. Plaintiff was embarrassed and ashamed of such a
suggestion.
The next day, Plaintiff spoke with Ortiz to defend
against Ortiz’s accusations, but Ortiz abruptly ended the conversation stating
that he did not want to discuss the incident with Plaintiff. Later in the day,
Plaintiff attempted to speak to Ortiz once again, but Ortiz declined to speak
about the incident.
Plaintiff returned for a graveyard shift later that
night where she met another female security guard working for a different
company. The other security guard shared to Plaintiff that: “There’s this girl
– ‘Cice’ at your company who has been sucking everyone’s dick.” Plaintiff’s
nickname at work was “Cice” and Plaintiff realized that Oritz’s harassing
comments had reached others.
When Plaintiff was clocking out of her shift,
Plaintiff saw Ortiz conversating with Alvarez. Plaintiff confronted Ortiz
regarding the rumors about her. At this time, Alvarez stated “what are you on
your period? You're so emotional -- calm down, it's not that serious.”
Plaintiff reported these incidents to Platinum’s
dispatch operator to begin the process of a formal complaint that same night.
The dispatch operator assured Plaintiff that she would report Plaintiff’s
concerns to human resources once Platinum’s corporate offices opened.
For days, Plaintiff did not receive any updates from
human resources and had to continue working with Ortiz. During this time, Ortiz
continued to subject Plaintiff to hostile and retaliatory acts. Plaintiff then
contacted the same dispatch operator to ask whether Plaintiff’s concerns were
reported to Platinum which the dispatch operator confirmed they were reported.
As such, Plaintiff reached out to Platinum’s human
resources directly to inquire about her report. Human resources did not meet
with Plaintiff until three weeks after her call.
Ortiz continued to retaliate against Plaintiff for
voicing her concerns and on January 12, 2023, Plaintiff was forced to resign
from her position due to Ortiz’s conduct.
On May
31, 2024, Plaintiff filed a complaint asserting the following causes of action
against Defendants Platinum, Ortiz, and Does 1-25:
1.
Hostile
Work Environment – Sexual Harassment;
2.
Failure to Prevent Harassment, Discrimination, and Retaliation;
3.
Gender Discrimination;
4.
Retaliation;
5.
Constructive Discharge; and
6.
Intentional Infliction of Emotional Distress.
On
August 16, 2024, Platinum filed their Motion to Compel Arbitration. On September
17, 2024, Plaintiff filed an opposition to Platinum’s motion. On September 25,
2024, Platinum filed a reply to Plaintiff’s opposition.
“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: (a) The right to compel
arbitration has been waived by the petitioner; or (b) Grounds exist for
rescission of the agreement.” (Code Civ. Proc., § 1281.2, subds. (a) and (b).)
The party seeking to compel arbitration bears
the burden of proving the existence of a valid arbitration agreement by the
preponderance of the evidence. (Hotels Nevada v. L.A. Pacific Center, Inc.
(2006) 144 Cal.App.4th 754, 761.) The burden then shifts to the opposing
party to prove by a preponderance of the evidence a defense to enforcement
(e.g., fraud, unconscionability, etc.) (Id.) “In these summary
proceedings, 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.”
(Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th
951, 972.)
“If a court of competent jurisdiction. . . 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.” (Code Civ. Proc., § 1281.4).
Discussion
Platinum moves the court for orders compelling
arbitration of Plaintiff’s claims and staying all further judicial proceedings
in this action pending completion of arbitration.
A.
Existence of an Arbitration Agreement
Platinum argues that Plaintiff and Platinum
entered into an arbitration agreement on April 14, 2022, when Plaintiff
digitally signed Platinum’s Dispute Resolution Agreement as part of her
onboarding documents. (Vanderford Decl., Exh. A.) Platinum provides evidence of
such agreement and Plaintiff’s acceptance. (Ibid.) Platinum’s Dispute
Resolution Agreement provides, in relevant part, as follows:
1. I and Platinum Security,
Inc. ("the Company") agree to utilize binding individual arbitration
to resolve all disputes that might arise out of or be related in any way to my
employment by the Company. Such disputes include, but are not limited to,
claims I might bring against the Company for wrongful termination,
discrimination, harassment, retaliation, breach of contract, wage and hour
violations, and torts such as invasion of privacy, assault and battery, or
defamation. Such disputes also include claims that the Company might bring
against me such as, for example, theft of money or trade secrets, breach of a
confidentiality agreement, or breach of a contract. I and the Company each
specifically waive our respective rights to bring such claims against the other
in a court of law and to have a trial by jury.
2. The only exceptions to
binding arbitration shall be for claims arising under the National Labor
Relations Act which are brought before the National Labor Relations Board,
claims for medical and disability benefits under the California Workers'
Compensation Act, claims for benefits brought before the Employment Development
Department, claims for wages brought before the California Labor Commissioner,
or other claims that are not subject to arbitration under law. Moreover,
nothing herein shall prevent me from filing a charge or complaint with the
United States Equal Employment Opportunity Commission, the California
Department of Fair Employment and Housing, or any local agency that allows me
to file an administrative charge or complaint. Once the agency's proceedings
are completed, however, if I wish to pursue the matter further I understand
that I must do so under this agreement.
3. My agreement to arbitrate
claims against the Company includes claims I might bring against the Company's
parent, subsidiary, affiliated or client entities as well as against owners,
directors, officers, managers, employees, agents, contractors, attorneys,
benefit plan administrators, and insurers of the Company or of its parent,
subsidiary, affiliated or client entities. I also agree to arbitrate claims
against any person or entity I allege to be a joint employer with the Company.
4. I and the Company agree
that any claims we might pursue against the other in arbitration under this
agreement shall be brought in the individual capacity of myself or the Company.
This agreement shall not be construed to allow or permit the consolidation or
joinder of claims of other claimants, or to permit such claims to proceed as a
class or collective action. No arbitrator shall have the authority under this
agreement to order any such class or collective action. Any dispute regarding
the validity, scope or enforceability of this agreement, or concerning the
arbitrability of a particular claim, shall be resolved by a court, not by the
arbitrator. I agree to waive any substantive or procedural rights that I may
have to bring or participate in an action brought on a class or collective
basis. If under applicable law a representative claim under the California
Private Attorneys General Act ("PAGA") is found to be unwaivable and
such an action is pursued in court, I and the Company agree that any such PAGA
claim will be severed and stayed pending resolution of claims that are
arbitrable.
(Id., Exh. A.)
The court finds that Platinum has met its
initial burden of proving the existence of an arbitration agreement between the
parties wherein the parties agreed to arbitrate this dispute by providing
Exhibit A in the Declaration of Ty S. Vanderford. The burden thus shifts to
Plaintiff, who may present any challenges to the enforcement of the agreement
and evidence in support of those challenges.
B.
Enforceability Issues
Platinum further argues that Platinum has not
waived their right to compel arbitration nor that the agreement is subject to
revocation as unconscionable. (Motion to Compel Arbitration, 3:15-17.)
In opposition, Plaintiff concedes that Platinum
has not waived their right to compel arbitration and that the arbitration
agreement is not subject to revocation as unconscionable. (Opp., 3:14-19.)
As such, the court turns to the EFAA arguments brought
by the parties.
C.
EFAA
The Ending Forced Arbitration of Sexual Assault
and Sexual Harassment Act, 9 U.S.C. §402 (“EFAA”) passed in 2022 and amended
the Federal Arbitration Act (“FAA”) to invalidate and prohibit enforcement of
arbitration agreements for “case[s] ... filed under Federal, Tribal, or State
law” and “relat[ing] to” a sexual assault or sexual harassment dispute. 9
U.S.C. § 402(a). The EFAA covers any “sexual harassment dispute” which is “a
dispute relating to conduct that is alleged to constitute sexual harassment
under applicable Federal, Tribal, or State law,” 9 U.S.C. § 401(4). (Molchanoff
v. SOLV Energy, LLC (2024) 2024WL899384 at *2.) “The EFAA applies to any
dispute or claim that arises or accrues on or after its date of enactment,
March 2, 2022.” (Ibid.)
Platinum argues that the EFAA does not bar
arbitration of Plaintiff’s claims because Plaintiff did not allege a sexual
harassment claim as contemplated by the EFFA. (Motion to Compel Arbitration, 5:14-15.)
Platinum argues that Plaintiff’s sexual harassment claim stems from a single
incident with Ortiz where Ortiz asked whether Plaintiff and a co-worker had a
sexual relationship. (Id., 6:16-28.) Platinum argues that Plaintiff fails
to allege that Ortiz inquiry was sexual harassment. (Ibid.) Platinum
also argues that the remainder of Plaintiff’s complaint includes discrete
incidents of alleged sexual harassment which are only “merely offensive” and
not actionable. (Id., 7:3-28.) Platinum contends that Plaintiff did not
establish that the sexual harassment was so severe and pervasive that it
created a hostile work environment and thus, Plaintiff has not sufficiently
pled a sexual harassment dispute. (Ibid.)
In opposition, Plaintiff contends that she was
mistreated and disparately treated because of her sex. (Opp., 4:19-23.) Plaintiff
also argues that multiple graphic comments made in her presence and about her
to others contributed to Plaintiff’s allegations of sexual harassment and
hostile work environment. (Id., 7:21-25.) Lastly, Plaintiff argues that
the EFAA extends to all of Plaintiff’s claims as they relate to the sexual
harassment dispute. (Id., 7:26-28; 8:10-28.)
In reply, Platinum contends that Plaintiff has
not alleged a claim for sexual harassment because the alleged conduct is
neither pervasive nor severe. (Reply, 5:2-3.) Plaintiff argues that Ortiz’s
conduct was an isolated incident and not a pattern of a routine nature. (Id.,
6:8-15.) Platinum argues that Plaintiff’s complaint is based mostly on
Platinum’s alleged failure to investigate Plaintiff’s sexual harassment
concerns. (Id., 6:16-24.) Platinum also argues that Plaintiff’s claims
of sexual harassment are contradicted by a video Plaintiff invertedly recorded
when confronting Ortiz regarding his comment to Plaintiff’s co-worker. (Id.,
7:23-28, 8:1-28.) Lastly, Platinum argues that given the strong policy in favor
of arbitration, courts should not permit the EFAA to prevent arbitration of
claims not within its scope. (Id., 9:18-28, 10:1-10.)
Here, it appears that the applicability of EFAA
in this case concerns allegations of sexual harassment. “‘[H]arassment’ because
of sex includes sexual harassment, gender harassment …. Sexually harassing
conduct need not be motivated by sexual desire.” (Cal. Gov. Code §
12940(j)(4)(C).)
Accordingly, this court holds that because
Plaintiff’s claim alleges “conduct constituting a sexual harassment dispute” as
defined by the EFAA, this determination makes the parties’ pre-dispute
arbitration agreements unenforceable with respect to the entire case relating to
that dispute. Because each of Plaintiff’s non-sexual harassment causes of
action relate to or arise from her sexual harassment allegations, the entire
arbitration agreement is rendered unenforceable pursuant to the EFAA. Plaintiff
alleges more than a single isolated event of sexual harassment as argued by
Platinum. Plaintiff’s complaint includes multiple allegations where Plaintiff
was discriminated against because of her gender which led to a hostile work
environment. Platinum’s arguments that Plaintiff’s video contradicts her claims,
and that policy favors arbitration are irrelevant since EFAA applies.
The motion is denied.
Conclusion
Defendant Platinum Security
Inc.’s Motion to Compel Arbitration is DENIED.