Judge: Stephen P. Pfahler, Case: 23STCV31671, Date: 2024-04-17 Tentative Ruling
Case Number: 23STCV31671 Hearing Date: April 17, 2024 Dept: 68
Dept.
68
Date:
4-17-24
Case
#23STCV31671
Trial
Date: Not Set
ARBITRATION
MOVING
PARTY: Defendant, Super Center Concepts, Inc.
RESPONDING
PARTY: Plaintiff, Briannna Flores
RELIEF
REQUESTED
Motion
to Compel Arbitration
SUMMARY
OF ACTION
On December 28, 2023,
Plaintiff Brianna Flores filed a 12 cause of action complaint against Super
Center Concepts, Inc. and Pedro Luna for 1. FEHA Discrimination (Sex/Gender);
2. FEHA Harassment (Sex/Gender); 3. FEHA Discrimination (Disability); 4. FEHA
Failure to Accommodate Disability; 5. FEHA Failure to Engage in the Interactive
Process; 6. FEHA Retaliation; 7. Violation of the California Family Rights Act
(CFRA); 8. Retaliation in Violation of the California Family Rights Act (CFRA);
9. FEHA Failure to Take All Reasonable Steps to Prevent Discrimination,
Harassment, and/or Retaliation; 10. Violation of Lab. Code § 1102.5; 11.
Violation of Civ. Code § 1708.5; and 12. Wrongful Termination in Violation of
Public Policy. Super Center Concepts, Inc. answered the complaint on January 29,
2024.
RULING: Denied.
Request
for Judicial Notice: Granted in Part.
Requests
for Judicial Notice: Granted.
·
The
court takes judicial notice of the House Report.
·
The
court takes judicial notice of the trial Court orders for the existence of the
orders, but not any factual findings. (Kilroy v. State of California (2004)
119 Cal.App.4th 140, 147-148; Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.) The orders also
constitute unpublished material, and therefore not citable for any reference.
(Cal. Rules of Court, rule 8.1115(a); Rittiman
v. Public Utilities Com. (2022) 80
Cal.App.5th 1018, 1043 (footnote 18).)
Defendant
Super Concepts, Inc. moves to compel arbitration on the complaint of plaintiff Brianna
Flores. Defendant moves to compel arbitration based on the arbitration
provision in the “Mutual Agreement to Arbitration Claims.” Defendants maintains
all claims are subject to arbitration under the terms of the agreement, and in
no way constitutes an unconscionable agreement. Plaintiff in opposition
challenge enforcement of the agreement on grounds of the lack of evidence of an
executed agreement, and exemption under the Ending Forced Arbitration of Sexual
Assault and Sexual Harassment Act (EFAA). Defendant in reply maintains the
agreement was electronically signed. Defendant concedes that EFAA may preempt
certain claims, but maintains piecemeal splitting the claims into arbitration
while the other claims remain with the court is allowed.
The Federal
Arbitration Act (FAA) governs the rules for conducting arbitration. California
law under the California Arbitration Act governs the standard for compelling
arbitration. (Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104,
1119; Viking
River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906; Volt Information Sciences, Inc. v. Board of Trustees of Leland
Stanford Junior University (1989) 489 U.S. 468, 477–479; Victrola 89, LLC v. Jaman
Properties 8 LLC (2020) 46 Cal.App.5th 337, 346.)
“A written
agreement to submit to arbitration an existing controversy or a controversy
thereafter arising is valid, enforceable and irrevocable, save upon such
grounds as exist for the revocation of any contract.” (Code Civ. Proc., §
1281.) “On petition of a party to an arbitration agreement alleging the
existence of a written agreement to arbitrate a controversy and that a party
thereto refuses to arbitrate such 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 the revocation of the agreement.” (Code Civ. Proc., § 1281.2.)
The
law creates a general presumption in favor of arbitration. In a motion to compel arbitration, the moving party must prove by a
preponderance of evidence the existence of the arbitration agreement and that
the dispute is covered by the agreement. “‘Under “both
federal and state law, the threshold question presented by a petition to compel
arbitration is whether there is an agreement to arbitrate.”’” (Long v. Provide Commerce, Inc. (2016) 245 Cal.App.4th
855, 861.) “Private arbitration is a matter of
agreement between the parties and is governed by contract law. (Platt Pacific, Inc. v. Andelson (1993)
6 Cal.4th 307, 313.) In a motion to compel arbitration, the moving party must prove by a
preponderance of evidence the existence of the arbitration agreement and that
the dispute is covered by the agreement. The burden then shifts to the
resisting party to prove by a preponderance of evidence a ground for denial
(e.g., fraud, unconscionability, etc.). (Rosenthal v. Great Western Fin'l
Securities Corp. (1996) 14 Cal.4th 394, 413-414; Gamboa v. Northeast Community Clinic (2021)
72 Cal.App.5th 158, 164–165; Hotels
Nevada v. L.A. Pacific Ctr., Inc. (2006)
144 Cal.App.4th 754, 758.) Any challenges to the formation
of the arbitration agreement should be considered before any order sending the
parties to arbitration. The trier of fact weighs
all evidence, including affidavits, declarations, documents, and, if
applicable, oral testimony to determine whether the action goes to arbitration.
(Hotels Nevada v. L.A. Pacific Ctr., Inc., supra, 144 Cal.App.4th at
p. 758.)
Defendant presents a copy of the arbitration
agreement which indicates a digital signature on May 5, 2022. [Declaration of
Enrique Montes, Ex. B.] Plaintiff concedes to commencing employment in April
2022, but denies any “recall” of said agreement. [Declaration of Brianna Flores.]
Plaintiff further challenges the agreement in that the declaration lacks
specific address of the purported electronic signature.
Defendant emphasizes the corporate policy regarding the
requirement for assent to the agreement in order to continue employment with
the company. [Montes Decl.] The continued employment supports a finding of
acceptance of the agreement with Emerald Court for purposes of the motion
barring any factual challenges from Plaintiff. (Gorlach
v. Sports Club Co. (2012) 209 Cal.App.4th 1497, 1508.) Plaintiff offers no such
challenges. (see OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 127 accord
Armendariz v. Foundation Health Psychcare
Services, Inc.,
2000) 24 Cal.4th 83, 115.) The court therefore finds the agreement was executed
and therefore before the court for purposes of substantive consideration.
Defendant concedes that certain
unspecified causes of action remain preempted, but otherwise challenges the
applicability of the “Ending Forced Arbitration of Sexual Assault and Sexual
Harassment Act of 2021” (EFAA) to the remainder of the claims. Plaintiff specifically contends the first, second, sixth, ninth,
tenth, eleventh, and twelfth causes of action are rooted in the EFAA. Defendant
in reply counters that only two causes of action directly identifying sexual
harassment actually support a finding of preemption. The definitional
terms state:
(1) Predispute arbitration
agreement. The term “predispute
arbitration agreement” means any agreement to arbitrate a dispute that had not
yet arisen at the time of the making of the agreement.
(2) Predispute joint-action waiver. The term “predispute joint-action waiver” means
an agreement, whether or not part of a predispute arbitration agreement, that
would prohibit, or waive the right of, one of the parties to the agreement to
participate in a joint, class, or collective action in a judicial, arbitral,
administrative, or other forum, concerning a dispute that has not yet arisen at
the time of the making of the agreement.
(3) Sexual assault dispute. The term “sexual assault dispute” means a
dispute involving a nonconsensual sexual act or sexual contact, as such terms
are defined in section 2246 of title 18 or similar applicable Tribal or State
law, including when the victim lacks capacity to consent.
(4) Sexual harassment dispute. The term “sexual harassment dispute” means a
dispute relating to conduct that is alleged to constitute sexual harassment
under applicable Federal, Tribal, or State law.
9
U.S.C.A. § 401
The next section continues:
(a) In general.--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.
(b) Determination of applicability. 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.A. § 402
Under
the definitional terms, the first and second causes of action clearly meet the
requirements for a sexual harassment dispute. The court also finds the eleventh
cause of action clearly alleges a claim of unwelcomed sexual contact. The
arguments seeking to stretch the sexual harassment claims into the retaliation
claims, which also incorporate the disability claims, as well as the failure to
prevent to sexual harassment, and wrongful termination based on discrimination,
lack an exclusive basis of compliance with the section. Plaintiff presents no
specific federal authority regarding the standard for sexual harassment as
falling within the statutory provision. The court finds the state law standard
for sexual harassment includes conduct arising from gender applicable. (Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 348-349.)
The claims therefore
incorporating gender based conduct therefore fall within the scope of EFAA
preemption. The court therefore finds the incorporation of the gender based
claims into the sixth, ninth and twelfth causes of action also therefore
encapsulate at least some form of preemption.
Again, defendant
acknowledges at least some preemption, which naturally leads to the discussion
of piecemeal arbitration. Defendant encourages a piecemeal approach to
arbitration. The motion presents two concerns for the court: the number of causes
of action preempted and the lack of participation by defendant Pedro Lnu.
“On
petition of a party to an arbitration agreement alleging the existence of a
written agreement to arbitrate a controversy and that a party thereto refuses
to arbitrate such 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...” (Code Civ. Proc., § 1281.2.) The court, as a
matter of policy, avoids potential piecemeal adjudication of cases, and
maintains all parties either participate in arbitration or remain with the
court. The court again cites to California rules regarding compelling
arbitration, as distinguished from the FAA rules governing the arbitration.
The right of a trial court to refuse arbitration on the
possibility of conflicting rulings remains an upheld statutory rule. (Whaley
v. Sony Computer Entertainment America, Inc. (2004) 121 Cal.App.4th
479, 485-486; Henry v. Alcove Investment, Inc. (1991) 233 Cal.App.3d
94, 101-102.) “The third party litigation exception set forth in section
1281.2(c) only applies when the court determines that three conditions are
satisfied. (Acquire II, Ltd. v. Colton Real
Estate Group (2013) 213 Cal.App.4th 959, 967-968, 153 Cal.Rptr.3d 135
[exception applies when: (1) party to arbitration agreement also a party to a
pending court action with a third party; (2) third party action arises out of
the same transaction or series of transactions; and (3) there is a possibility
of conflicting rulings on a common issue of law or fact].) Once all three
conditions are satisfied, section 1281.2(c) identifies four options from which
the trial court may choose, including denial or stay of arbitration
proceedings, among other things. (Id. at p. 968, 153 Cal.Rptr.3d 135.) These options are entrusted to
the trial court's discretion. (Avila, supra, 20
Cal.App.5th at p. 840, 230 Cal.Rptr.3d 42.)” (Williams v. Atria Las Posas
(2018) 24 Cal.App.5th 1048, 1054.)
“Every California case
finding nonsignatories to be bound to arbitrate is based on
facts that demonstrate, in one way or another, the signatory's implicit
authority to act on behalf of the nonsignatory.” (Jensen v. U-Haul Co. of California (2017)
18 Cal.App.5th 295, 304; Harris v. Superior Court (1986) 188 Cal.App.3d
475, 478–479; Rowe v. Exline (2007)
153 Cal.App.4th 1276, 1290.) “A nonsignatory can be compelled to arbitrate when
a preexisting relationship existed between the nonsignatory and one of the
parties to the arbitration agreement, making it equitable to compel
the nonsignatory to arbitrate as well.” (JSM Tuscany, LLC v. Superior Court (2011) 193 Cal.App.4th
1222, 1240.) “Examples of the preexisting relationship include agency, spousal
relationship, parent-child relationship and the relationship of a general
partner to a limited partnership. (Citations.) In the
absence of such a relationship, or third party beneficiary status, courts will
generally not compel a nonsignatory to arbitrate.” (Crowley Maritime Corp. v. Boston Old Colony Ins. Co. (2008)
158 Cal.App.4th 1061, 1070.) “A nonsignatory plaintiff can be
compelled to arbitrate a claim even against a nonsignatory party, when the
claim is itself based on, or inextricably intertwined with, the contract
containing the arbitration clause.” (JSM
Tuscany, LLC v. Superior Court, supra,
193 Cal.App.4th at p. 1241.)
Nothing
in the motion expressly addresses the legal relationship with Pedro Lnu, and
therefore sufficient basis for a joinder of the Lnu, even if it were requested
by moving Defendant. The court therefore finds no contractual basis for
arbitration as to this party for purposes of the instant motion.
While the court will occasionally stay as to a different party who
cannot be joined, at least six of the 12 causes of action are also subject to
arbitration exclusion. The combination of the missing individual party and at
least one-half of the claims exempt, renders arbitration of the action far more
susceptible to conflicting rulings, thereby rendering arbitration impractical. (Code Civ. Proc., § 1281.2, subd. (c).) The court therefore denies the motion to
compel arbitration.
This order is appealable. (Code
Civ. Proc., § 1294, subd. (a).)
Case Management Conference set for 5-1-24
Moving
Defendant to give notice to all parties.