Judge: Stephanie M. Bowick, Case: 23STCV06003, Date: 2024-11-08 Tentative Ruling

DEPARTMENT 19 LAW AND MOTION RULINGS
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Case Number: 23STCV06003    Hearing Date: November 8, 2024    Dept: 19

PLAINTIFF'S MOTION TO LIFT ARBITRATION STAY IS DENIED


TENTATIVE RULING 

After consideration of the briefing filed and oral argument at the hearing, Plaintiff Maria Aracely Rivas’s Motion to Invalidate Arbitration Agreement and Lift Arbitration Stay is DENIED. 

Counsel for Defendants to give notice.

STATEMENT OF THE CASE 

This is an employment dispute case. Plaintiff Maria Aracely Rivas (“Plaintiffs”) brings suit against Defendants Frida Restaurant Sherman Oaks, LLC (“Frida”) and Pedro Apoloni (erroneously sued as Pedro Apolonio) (collectively, “Defendants”) alleging the following causes of action:

1.      Gender Discrimination [Cal. Gov. Code § 12940, Et Seq.];

2.      Harassment/Hostile Work Environment [Cal. Gov. Code §12940 Et Seq.];

3.      Failure To Prevent Harassment/Hostile Work Environment [Cal. Gov. Code §12940 Et Seq.];

4.      Retaliation [Cal. Gov. Code § 12940, Et Seq.];

5.      Constructive Wrongful Termination [In Violation Of Public Policy]; and

6.      Negligent Supervision, Hiring, And Retention. 

On December 13, 2023, the Court GRANTED Defendants’ “Motion to Compel Arbitration of Plaintiff Maria Aracely Rivas’ Individual Claims and Stay Litigation Pending Completion of Arbitration” (the “Motion to Compel Arbitration”). 

On May 10, 2024, Plaintiff filed the instant Motion to Invalidate Arbitration Agreement and Lift Arbitration Stay (the “Motion”). 

GROUNDS FOR MOTION 

Plaintiff moves for an order invalidating and rendering unenforceable the arbitration agreement executed between Plaintiff and Defendant Frida and lifting the arbitration stay on the ground that Plaintiff is entitled to such relief pursuant to 9 U.S.C. §§ 401 and 402, i.e., the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. 

REQUEST FOR JUDICIAL NOTICE 

On May 10, 2024, Plaintiff filed a request for judicial notice requesting that the Court take judicial notice of Exhibit 1, which is a March 28, 2024 Minute Order issued in Simms v. Epione Medical Corporation, et al., Case No. 22STCV15941. 

Defendants object to the request. (See Opposition, pp. 9-10.) 

The Court DENIES Plaintiff’s request to take judicial notice of Exhibit 1. 

Exhibit 1 is a minute order issued in a different, unrelated case. In that case there was no dispute that the Federal Arbitration Act governed the analysis. That is not the case here. In addition, no evidence that the facts in this case implicate interstate travel were presented in the moving papers. Therefore, the Court does not find that Exhibit 1 contains any judicially noticeable “facts” relevant to an issue material to the determination of the instant Motion. (See, e.g. Budrow v. Dave & Buster's of California, Inc. (2009) 171 Cal.App.4th 875, 885 (citing Santa Ana Hospital Medical Center v. Belshé (1997) 56 Cal.App.4th 819, 831) [declining to take judicial notice of trial court ruling in different case because “[a] written trial court ruling in another case has no precedential value….”]; People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, n.2 [“any matter to be judicially noticed must be relevant to a material issue.”].) 

For the same reasons, the Court also DENIES Plaintiff’s request, filed with her reply papers, to take judicial notice of Exhibit 2, which is another minute order issued in a different case. 

DISCUSSION 

A.    Reply Papers

As an initial matter, Plaintiff filed her reply papers on November 4, 2024, which is only four (4) court days before the hearing and therefore are untimely. 

However, in the interests of justice, the Court nonetheless considers the reply papers but admonishes Plaintiff to comply with all filing requirements. 

Plaintiff argues that 9 United States Code sections 401 and 402, i.e., the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (hereafter, the “EFAA” or the “Act”), entitles her to invalidate the arbitration agreement upon which the Court ordered Plaintiff to arbitrate her individual claims (hereafter, the “Arbitration Act”) and to lift the stay imposed by the Court pending the arbitration of those claims, on the grounds that the instant action is a “sexual harassment dispute” and the EFAA was effective at the time the dispute arose. (Motion, pp. 2-7.) 

As explained by the Court of Appeal in Kader v. Southern California Medical Center, Inc. (2024) 99 Cal.App.5th 214: 

The Act consists of two sections. Section 402, subdivision (a), provides that 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 is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.” Any issue as to whether the Act applies to a dispute is to be determined under federal law. (9 U.S.C. § 402, subd. (b).)

Section 401 of the Act defines several relevant terms: (1) a predispute arbitration agreement is “any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement;” (2) a sexual assault dispute is “a dispute involving a nonconsensual sexual act or sexual contact;” and (3) a sexual harassment dispute 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, subds. (1), (3), & (4).)

A statutory note to the Act adds: “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.” (Pub.L. No. 117-90, § 3, reprinted in notes foll. 9 U.S.C. § 401.) [….] 

(Id. at 221-222.) 

Defendants argues that, since the Court determined that the Federal Arbitration Act (the “FAA”) does not apply, the EFAA also does not and cannot apply, (Opposition at p. 2), and that, even assuming the FAA applied, the Motion must be denied on the basis that it is a procedurally improper motion for reconsideration. (Id. at pp. 2-7.) Defendants also argue that, even if the FAA applied and the Motion was not a procedurally improper motion for reconsideration, the EFAA does not apply to Plaintiff’s claims because they accrued prior to the Act’s effective date, i.e., March 3, 2022. (Id. at pp. 7-9.) 

The Court agrees with Defendants that, because in ruling on the Motion to Compel Arbitration the Court determined that the FAA does not apply, the EFAA also does not apply and does not permit Plaintiff to invalidate the Arbitration Agreement and proceed with all of her claims in court. 

In granting Defendants’ Motion to Compel Arbitration, the Court determined that the FAA did not apply because there was insufficient evidence “establishing that Plaintiff’s employment and the arbitration agreement at issue affect activities having a substantial relation to interstate commerce….” (December 13, 2023 Minute Order, p. 4.) The Court notes that, in opposition to Defendants’ Motion to Compel Arbitration, Plaintiff did not contend that the FAA applied and failed to present any evidence demonstrating that the Arbitration Agreement affected any of the three (3) categories of activity that Congress may regulate under the commerce power. (See Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 238 (internal citations and quotations omitted) [“…the 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.”].) 

Since this Court determined that the FAA did not apply in this case, the Court agrees with Defendants that the EFAA therefore also does not apply. 

Plaintiff relies on Kader, Turner v. Tesla, Inc. (N.D. Cal. 2023) 686 F.Supp.3d 917, Johnson v. Everyrealm, Inc. (S.D.N.Y. 2023) 657 F.Supp.3d 535, and Molchanoff v. SOLV Energy, LLC (S.D. Cal., Mar. 1, 2024, No. 23CV653-LL-DEB) 2024 WL 899384. (Motion at pp. 2-7.) However, in all of these cases, it was determined that the FAA governed the arbitration agreements at issue. (Kader, supra, 99 Cal.App.5th at 218 [“The parties agreed that any arbitration would be governed by the Federal Arbitration Act (FAA; 9 U.S.C., §§ 1–16).”]; Turner, supra, 686 F.Supp.3d at 922-924; Johnson, supra, 657 F.Supp.3d at 548-551; Molchanoff, supra, 2024 WL 899384 at *1-2.) 

Since it was determined in this case that the FAA did not apply, the Court agrees with Defendants that the EFAA cannot be a basis to grant the relief requested by Plaintiff. 

The Court rejects Plaintiff’s reply brief argument that, even if the FAA does not apply, the EFAA still applies because the Complaint involves state law claims. (Reply, p. 1.) Plaintiff provides no legal authority to support her argument, and the case authority cited by Plaintiff in the Motion makes clear that the EFAA amends the FAA and therefore is a part of the FAA. (Turner, supra, 686 F.Supp.3d at 923 [“The EFAA amends the FAA”]; Johnson, supra, 657 F.Supp.3d at 549 [“The EFAA, however, amends the FAA.”]; Molchanoff, supra, 2024 WL 899384 at *2 [“The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021… amended the 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.’].) 

For the reasons stated, Plaintiff’s Motion to Lift Arbitration Stay is DENIED. 

The Court reminds the parties that they must expeditiously complete the ordered arbitration. The parties should be prepared to inform the Court of the efforts they have undertaken to initiate the arbitration proceedings. 

Plaintiff to give notice, unless the parties waive notice at the hearing.