Judge: Stephen I. Goorvitch, Case: 23STCV01267, Date: 2023-09-12 Tentative Ruling

Case Number: 23STCV01267    Hearing Date: September 12, 2023    Dept: 39

John Doe v. OptumCare Management, LLC, et al.

Case No. 23STCV01267

Order #1 of 2

Motion for Judgment on the Pleadings

            Plaintiff John Doe (“Plaintiff”) filed this wrongful termination action against OptumCare Management, Inc. (“Optum”), UnitedHealth Group Incorporated (“United”), Maria Orozco, and Veronica Ramirez (collectively, “Defendants”).  Optum and United move for a judgment on the pleadings with respect to the third cause of action (sexual orientation harassment) and the fourth cause of action (sexual harassment).

            The bulk of Plaintiff’s complaint relates to disability discrimination and related causes of action.  Plaintiff alleges only as follows with respect to his claims for sexual orientation harassment and sexual harassment:

1.         In February 2022, during a diversity training, an x-ray technician, John Oritz, states that “he didn’t want to deal with this faggot stuff.”  (Complaint, ¶ 18.)

2.         Plaintiff is married to a man, and a nurse practitioner, Leonardo Legaspi, said, “I know who the top and who the bottom is.”  (Complaint, ¶ 18.)

3.         In April 2022, Plaintiff reported the sexual harassment to a site supervisor, but Defendants did nothing in response to the complaint.  (Complaint, ¶ 19.)  

4.         Neither individual who made the comments was Plaintiff’s supervisor.  (See Coplaint, ¶¶ 4-5.)

            These allegations are not sufficient as a matter of law since neither was Plaintiff’s supervisor.  (See, e.g., Hughes v. Pair (2009) 46 Cal.4th 1035, 1042-1044; McCoy v. Pacific Maritime Ass’n (2013) 216 Cal.App.4th 283, 293-294.) 

            Based upon the foregoing, the Court orders as follows:

            1.         The Court grants Optum and United’s motion for judgment on the pleadings with respect to the third and fourth cause of action.

            2.         The Court issues an Order to Show Cause why the Court should grant leave to amend.  The OSC hearing shall be held on April 15, 2024, at 8:30 a.m. 

            3.         Plaintiff shall file a response stating what additional facts would be alleged to support the third and fourth causes of action.  The response shall be filed on or before March 11, 2024.

            4.         Defendants may file a response on or before March 18, 2024.

            5.         Defendants’ counsel shall provide notice and file proof of such with the Court. 

Order #2 of 2

Motion to Compel Arbitration

            Plaintiff John Doe (“Plaintiff”) filed this wrongful termination action against OptumCare Management, Inc. (“Optum”), UnitedHealth Group Incorporated (“United”), Maria Orozco, and Veronica Ramirez (collectively, “Defendants”).  The Court has granted Optum and United’s motion for a judgment on the pleadings with respect to the third and fourth causes of action.  Defendants move to compel arbitration of the remaining claims. 

The moving party on a petition to compel arbitration “bears the burden of proving the existence of a valid arbitration agreement by a preponderance of the evidence, while a party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense.  The trial court sits as the trier of fact, weighing all the affidavits, declarations, and other documentary evidence, and any oral testimony the court may receive at its discretion, to reach a final determination.”  (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836, 842, internal quotations and citations omitted.) 

Defendant advances an arbitration agreement, which covers the remaining causes of action, and Plaintiff does not dispute its authenticity.  Nor does Plaintiff dispute that the Federal Arbitration Act applies.  Rather, Defendant argues as follows: (1) The arbitration agreement violates the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFAA”); (2) The agreement is procedurally and substantively unconscionable; and (3) Defendant waived its right to compel arbitration. 

First, the arbitration agreement does not violate the EFAA.  The Court granted Optum and United’s motion for judgment on the pleadings of the sexual harassment claims.  Even if the Court permits Plaintiff to amend those causes of action, they will be severed and stayed while the remaining claims are arbitrated.  Under the Federal Arbitration Act, the Court must compel arbitration of arbitrable claims, even if some claims are not arbitrable.  (KPMG LLP v. Cocchi (2011) 565 U.S. 18, 22.) 

Second, the arbitration agreement is not unconscionable.  Although the agreement was a contract of adhesion, establishing some procedural unconscionability, this is not sufficient to invalidate the entire agreement.  There is no evidence of substantive unconscionability.  Plaintiff argues that the agreement limits discovery, but he ignores the provision that “[e]ach party can request that the arbitrator allow additional discovery, and additional discovery may be conducted under the parties’ mutual stipulation or as ordered by the arbitrator.”  Similarly, Plaintiff argues that he must submit to a medical examination, but he cannot take such an exam of Defendant.  This is true even in Superior Court.  A medical examination of plaintiffs is routine in employment discrimination cases such as this one, because defendants are entitled to verify the existence and extent of the disability and emotional distress damages.  Conversely, there is no basis for a plaintiff to take such an examination in the absence of a cross-complaint, which has not been filed in this case.  Regardless, if Plaintiff truly feels there is a reason to take a medical examination of any of the defendants, he may seek permission from the arbitrator. 

            Plaintiff’s remaining arguments of substantive unconscionability are equally meritless.  Plaintiff argues that Defendant may bring claims in court, but the agreement requires both parties to arbitrate, and the provision at issue allows either party to seek a temporary restraining order in court.  Because it applies equally to both parties, it is not unconscionable.  Plaintiff argues that the agreement is “one sided” because Plaintiff must keep matters in arbitration confidential, but again, the provision applies to both parties.  Plaintiff argues that the agreement requires him to pay court reporter fees, even though he is indigent, in violation of Code of Civil Procedure section 1282.5.  In fact, that section affords relief to indigent parties only in a “consumer arbitration,” which this is not. 

Finally, Plaintiff argues that Defendant has waived the right to compel arbitration.  Under the FAA, waiver of the right to compel arbitration is not viewed as a question of substantive contract law.  Thus, federal law, and not state law, governs the inquiry whether a party has waived its right to compel arbitration.  (See, e.g., Aviation Data, Inc. v. American Express Travel Related Services Company, Inc. (2010) 152 Cal.App.4th 1522, 1535.)  Under federal law, the party arguing waiver of arbitration bears a heavy burden.  (Britton v. Co-op Banking Group, 916 F.2d 1405, 1413 (9th Cir. 1990.)  There is no concrete test to determine whether a party has engaged in acts that are inconsistent with its right to arbitrate.  (Martin v. Yasuda, 839 F.3d 1118, 1125 (9th Cir. 2016).  Instead, the question of waiver depends on the totality of the moving party’s actions.  (Ibid.)  Any question whether a party has waived the right to compel arbitration should be resolved in favor of arbitration.  (Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp. (1983) 460 U.S. 1, 24.)  Plaintiff does not satisfy this burden. 

Based upon the foregoing, the Court orders as follows:

1.         Defendants’ motion to compel arbitration is granted.

2.         The Court takes the case management conference off-calendar and discharges the Order to Show Cause re: Dismissal for lack of service. 

3.         The Court sets an Order to Show Cause re: Dismissal (Arbitration) for April 15, 2024, at 8:30 a.m.

4.         The Court orders Plaintiff’s counsel to file a status report on or before March 11, 2024, informing the Court as to the status of the arbitration.

5.         The Court provides notice: If Plaintiff’s counsel does not file a status report and appear at the hearing, either remotely or in-person, the Court will dismiss this case with prejudice at the hearing.

6.         Defendants’ counsel shall provide notice and file proof of such with the Court.