Judge Steven J. Kleifield, Case 23STCV01347 2023-05-01 Tentative Ruling

Judge: Steven J. Kleifield, Case: 23STCV01347, Date: 2023-05-01 Tentative Ruling

Inform the clerk if you submit on the tentative ruling. If moving and opposing parties submit, no appearance is necessary.

Case Number: 23STCV01347 Hearing Date: May 1, 2023 Dept: 57

This is an employment action. Per the complaint, on or about February 10, 2022, Plaintiff Catherine Sparkman began her employment at Defendant Jason J. Emer, MD, Professional Corporation (“JEMD P.C.”) as the Director of Marketing and Social Media. By April 25, 2022, Sparkman alleges that she was forced to quit in the face of what she says amounted to “illegal activities and toxic work environment.” She filed suit on January 23, 2023. Her complaint asserts the following eleven causes of action: (1) sex/gender discrimination in violation of California’s Fair Employment and Housing Act (“FEHA”) (2) sex/gender harassment in violation of the FEHA; (3) age discrimination in violation of the FEHA; (4) age harassment in violation of the FEHA; (5) hostile work environment in violation of the FEHA; (6) retaliation in violation of the FEHA; (7) failure to prevent discrimination, harassment, retaliation and hostile work environment in violation of the FEHA; (8) constructive discharge in violation of public policy; (9) negligent hiring, supervision or retention of employee; (10) vicarious liability for assault and (11) unfair business practices in violation of Business & Professions Code Section 17200 et seq.

JEMD P.C. moved to compel arbitration under an agreement that Sparkman signed, which requires her to arbitrate “any and all past, present, and future claims or disputes . . . including . . . tort, defamation and other common law claims; . . . discrimination, harassment, and retaliation claims, including claims based on . . . sex, age, . . . or any other characteristic protected by federal, state or local law; . . . and claims or causes of action arising under or relating to any and all federal, state, or local constitutional, statutory, regulatory, or common laws now or hereafter recognized.”

In her opposition to the motion, Sparkman argues, inter alia, that the federal Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, 9 U.S.C. Section 402(a) (“the EFAA”), precludes arbitration of all of her claims against JEMD P.C. The EFAA removes from the ambit of arbitration agreements “alleg[ations] of conduct constituting a sexual assault dispute or sexual harassment dispute.” (Ibid.) The term “sexual assault dispute” is defined in the EFAA as “a dispute involving a nonconsensual sexual act or sexual contact, as such terms are defined in section 2246 of title 18 [of the U.S. Code] or similar applicable Tribal or State law, including when the victim lacks capacity to consent.” (Id. Section 401(a)(3).) The EFAA defines “sexual harassment dispute” as “a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.” (Id. Section 401(a)(4).)

Sparkman’s argument under the EFAA sweeps a bit too broadly. In the Court’s view, Sparkman’s claims in the third and fourth causes of action of her complaint for age discrimination and age harassment in violation of FEHA are subject to the arbitration agreement and not exempt under the EFAA. That is because those claims do not involve allegations of conduct constituting a sexual assault dispute or sexual harassment dispute. However, Sparkman’s claims in the first and second causes of action in her complaint for sex and gender discrimination and harassment do come within the purview of EFAA and are not arbitrable. The same goes for the claim in the tenth cause of action for vicarious liability for sexual assault. All of the other causes of action are based on claims of both sex/gender discrimination and harassment and claims of age discrimination and harassment. The age-related claims in those causes of action are arbitrable under the arbitration agreement that Sparkman signed. The sex/gender-related claims are not, by dint of the EFAA.

The Court is thus granting JEMD P.C’s motion to compel arbitration to the extent the motion seeks to compel arbitration of the third and fourth causes of action and the age-related claims in the fifth, sixth, seventh, eighth, ninth, and eleventh causes of action. JEMD P.C.’s motion is denied in all other respects. The Court is aware that this disposition will result in simultaneous, separate proceedings -- one before arbitrators and one before this Court. But that result is compelled by Dean Witter Reynolds, Inc. v. Byrd (1985) 470 U.S. 213. There, the U.S. Supreme Court held that where some claims are arbitrable and some are not, a court must grant a motion to compel arbitration of the arbitrable claims and deny the motion as to the non-arbitrable claims. Further, under Dean Witter, a court dealing with arbitrable and non-arbitrable claims is not required to stay litigation of the non-arbitrable claims while the arbitrable claims are resolved in the arbitration, and vice-versa.

Aside from her arguments based on the EFAA, the Court rejects Sparkman’s other points in her opposition to JEMD P.C.’s motion to compel arbitration.