Judge Teresa A. Beaudet, Case Number: 23STCV18615, Date: 2024-05-14 Tentative Ruling

Plaintiff Efrain Aquino (“Plaintiff”) filed this action on August 7, 2023 against Defendants Dawn Dee Motel and Apartments, a company doing business as Comfort Inn Santa Monica, and Leticia Gonzalez.

The Complaint alleges causes of action for (1) sexual battery, (2) battery, (3) assault,

(4) gender violence, (5) discrimination, (6) harassment, (7) retaliation, (8) failure to provide reasonable accommodation, (9) failure to engage in a good-faith interactive process, (10) failure to prevent discrimination, harassment, and retaliation, (11) declaratory judgment, (12) retaliation for disclosing violations of law, (13) wrongful termination in violation of public policy,

(14) violation of the Ralph Civil Rights Act, (15) violation of the Tom Bane Civil Rights Act, (16) intentional infliction of emotional distress, and (17) negligent supervision and retention.

Dawn Dee Motel And Apartments d/b/a Comfort Inn Santa Monica and Leticia Gonzales (jointly, “Defendants”) now move for an order compelling Plaintiff to submit all of his claims to binding arbitration and dismissing this entire action with prejudice. In the alternative, Defendants move for an order staying all proceedings in this action pending completion of arbitration. Plaintiff opposes.

Objection No. 1: sustained. Defendants note that “[t]here is no translation certification or attestation, or identification of a translator.” (Defendants’ Evidentiary Objection No. 1.) Defendants cite to Evidence Code section 753, which provides in part that “[w]hen the written characters in a writing offered in evidence are incapable of being deciphered or understood directly, a translator who can decipher the characters or understand the language shall be sworn to decipher or translate the writing.” ((Id., § 753, subd. (a).) In light of the fact that the Court sustains Defendants’ Objection No. 1, Defendants’ Objections Nos. 2-5 are moot.

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. Securities Corp. (1996) 14 Cal.4th 394, 413-414.)

Generally, on a petition to compel arbitration, the court must grant the petition unless it finds either (1) no written agreement to arbitrate exists; (2) the right to compel arbitration has been waived; (3) grounds exist for revocation of the agreement; or (4) litigation is pending that may render the arbitration unnecessary or create conflicting rulings on common issues. ((Code Civ. Proc., § 1281.2); (see Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218-219.)

“California has a strong public policy in favor of arbitration and any doubts regarding the arbitrability of a dispute are resolved in favor of arbitration.” ((Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 686.) “This strong policy has resulted in the general rule that arbitration should be upheld unless it can be said with assurance that an arbitration clause is not susceptible to an interpretation covering the asserted dispute.” ((Ibid. [internal quotations omitted].) This is in accord with the liberal federal policy favoring arbitration agreements under the Federal Arbitration Act (“FAA”), which governs all agreements to arbitrate in contracts “involving interstate commerce.” (9 U.S.C. section 2, et seq.; (Higgins v. Superior Court (2006) 140 Cal.App.4th 1238, 1247.)

In the Complaint, Plaintiff alleges that he “was employed by Defendants from approximately October 13, 2016, through May 31, 2022, as a maintenance employee, in Santa Monica, California.” (Compl., ¶ 17.)

Defendants submit the declaration of Tac Mahn, the Human Resource Manager and Controller for Dawn Dee Motel and Apartments dba Comfort Inn Santa Monica (“Dawn Dee”). (Mahn Decl., ¶ 2.) Tac Mahn’s declaration states, inter alia, that “[a]ttached hereto as Exhibit A is a true and correct copy of the ‘Employment Application’ in English which was signed by Plaintiff Efrain Aquino and dated September 27, 2016. This signed agreement has been continuously maintained as part of Mr. Aquino’s employee files in accordance with Dawn Dee’s ordinary and routine practice.” (Mahn Decl., ¶ 3.) Defendants note that the “Application for Employment” attached as Exhibit A to the Mahn Declaration provides in part as follows:

“I and the Company agree to utilize binding individual arbitration as the sole and exclusive means to resolve all disputes that may arise out of or be related in any way to my application for employment and employment, including but not limited to the termination of my employment and my compensation. I and the Company each specifically waive and relinquish our respective rights to bring a claim against the other in a court of law. Both I and the Company agree that any claim, dispute, and/or controversy that I may have against the Company (or its owners, directors, officers, managers, employees, or agents), or the Company may have against me, shall be submitted to and determined exclusively by binding arbitration under the Federal Arbitration Act (‘FAA’), in conformity with the procedures of the California Arbitration Act (Cal. Code Civ. Proc. sec 1280 et seq., including section 1283.05 and all of the Act’s other mandatory and permissive rights to discovery). The FAA applies to this Agreement because the Company’s business involves interstate commerce. Included within the scope of this Agreement are all disputes, whether based on tort, contract, statute (including, but not limited to, any claims of discrimination, harassment and/or retaliation, whether they be based on the California Fair Employment and Housing Act, Title VII of the Civil Rights Act of 1964, as amended, or any other state or federal law or regulation), equitable law, or otherwise. The only exception to the requirement of 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, Employment Development Department claims, or other claims that are not subject to arbitration under current law. However, nothing herein shall prevent me from filing and pursuing proceedings before the California Department of Fair Employment and Housing, or the United States Equal Employment Opportunity Commission (although if I choose to pursue a claim following the exhaustion of such administrative remedies, that claim would be subject to the provisions of this Agreement). By this binding arbitration provision, I acknowledge and agree that both the Company and I give up our respective rights to trial by jury of any claim I or the Company may have against the other.” (Mahn Decl., ¶ 3, Ex. A, ¶ 4; Mot. at pp. 8:16-9:9)

Defendants assert that each of the causes of action of the Complaint “falls within the scope of the enforceable mutual arbitration agreement entered into by the parties.” (Mot. at p. 9:16-17.)

Plaintiff does not appear to dispute that he signed the “Application for Employment” attached as Exhibit A to the Mahn Declaration, or that above-referenced arbitration provision covers the claims Plaintiff alleges in the Complaint. Therefore, the Court finds that the burden now shifts to Plaintiff to prove a ground for denial.

B. Grounds to Deny Arbitration: Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021

In the opposition, Plaintiff asserts that “the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act…is clear that Plaintiff cannot be forced to arbitrate his claims.” (Opp’n at p. 5:5-7.) Pursuant to 9 U.S.C. section 402, subdivision (a) , “[n]otwithstanding 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.”

Pursuant to 9 U.S.C. section 401(3), “[t]he 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 [18 USCS § 2246] or similar applicable Tribal or State law, including when the victim lacks capacity to consent.” Pursuant to 9 U.S.C. section 401(4), “[t]he term ‘sexual harassment dispute’ means a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.”
Plaintiff notes that the Complaint here alleges, inter alia, that “[b]eginning in or around 2017, GONZALEZ began touching Plaintiff inappropriately. She would put her hand on his back and caress Plaintiff’s arm and shoulder. When Plaintiff would object, GONZALEZ asked ‘Do you not like it?’” (Compl., ¶ 18.)

Plaintiff further alleges that “[i]n or around July 2018, Plaintiff injured himself at work, suffering from a disability affecting his major life activities…When Defendants ultimately sent Plaintiff to a doctor, the doctor advised Plaintiff that he needed to take two weeks of medical leave to treat the injury. However, when the doctor came back into the room a few minutes later, he told Plaintiff that Plaintiff needed to return to work the following day because Defendants did not authorize the two weeks of medical leave.” (Compl., ¶ 20.) “Plaintiff returned to work with restrictions, including but not limited to a 10-pound lifting restriction.” (Compl., ¶ 21.) “In or around January 2019, Plaintiff complained to Defendants that GONZALEZ was requiring him to perform work that violated his restrictions, including requiring him to lift heavy furniture. These violations continued.” (Compl., ¶ 22.) “GONZALEZ continued assigning Plaintiff work that outside [sic] of the accommodations needed due to his disability, including lifting heavy furniture. She told Plaintiff that if he did not do it, she would get him fired.” (Compl., ¶ 27.)

Plaintiff further alleges that “[b]eginning in or around January 2019, GONZALEZ’s inappropriate touching intensified. GONZALEZ began inappropriately touching and slapping Plaintiff’s buttocks. GONZALEZ also asked Plaintiff what kind of sexual positions he preferred and made other sexual innuendos. Plaintiff objected to this conduct.” (Compl., ¶ 23.) Plaintiff alleges that “[i]n or around May 2019, Plaintiff was assigned to repair a floor in a hotel room alone. When Plaintiff entered the room, GONZALEZ was in the room already, and as soon as Plaintiff entered, she turned off all of the lights. She rubbed her body against Plaintiff, told Plaintiff that they are alone and to throw her on the bed and have his way with her. Plaintiff was shaken, and left the room to complain to Defendants. Defendants instructed Plaintiff to return to work.” (Compl., ¶ 24.) “GONZALEZ’s inappropriate touching of Plaintiff and inappropriate sexual comments and questions continued.” (Compl., ¶ 25.)

Plaintiff alleges that “[i]n or around April 2020, Plaintiff told Defendants that he did not want to work in the laundry room anymore because he could no longer take the sexual harassment. However, the harassment continued.” (Compl., ¶ 26.) Plaintiff alleges that he “complained to the Maintenance Supervisor about GONZALEZ’s sexual harassment and innuendos. He told Plaintiff to just get back to work.” (Compl., ¶ 29.) “In or around April 2021, Plaintiff complained again to Defendants regarding the sexual harassment, and told them that if it did not stop, he was going to have to report it to the police. After this, GONZALEZ left Plaintiff alone for approximately three months.” (Compl., ¶ 30.)

Plaintiff alleges that “[i]n or around July 2021, GONZALEZ again began massaging, touching, and caressing Plaintiff’s back, arm, and shoulder, telling him that she was sorry and asking him to forgive her for her mistakes.” (Compl., ¶ 31.) “GONZALEZ continued to frequently verbally sexually harass Plaintiff while he was working, including asking him about his sexual preferences.” (Compl., ¶ 32.) “In or around August 2021, Plaintiff again complained to Defendants about the continued sexual harassment. The response that Plaintiff received was that it’s a difficult situation because GONZALEZ does not listen to anyone, not even the owners, and pretty much does anything she wants.” (Compl., ¶ 33.)

Plaintiff alleges that “[i]n or around January 2022, Plaintiff filed a police report against GONZALEZ for sexual harassment.” (Compl., ¶ 34.) Plaintiff alleges that “[o]n or about March 28, 2022, Defendants terminated Plaintiff, telling him that they needed him to be able to do his job without restrictions. Defendants terminated Plaintiff in discrimination of his sex/gender and disabilities/perceived disabilities, and in retaliation for his protected activities including but not limited to requesting accommodations; complaining about discrimination, harassment, and retaliation; and filing a police report.” (Compl., ¶ 35.)

In the opposition to the instant motion, Plaintiff asserts that “[f]ifteen of Plaintiff’s seventeen causes of action are directly based on these allegations of sexual harassment and sexual assault,” (Opp’n at p. 7:15-16) specifically, Plaintiff’s first cause of action for sexual battery, second cause of action for battery, third cause of action for assault, fourth cause of action for gender violence, fifth cause of action for discrimination, sixth cause of action for harassment, seventh cause of action for retaliation, tenth cause of action for failure to prevent discrimination, harassment, and retaliation, eleventh cause of action for declaratory judgment, twelfth cause of action for retaliation for disclosing violations of law, thirteenth cause of action for wrongful termination in violation of public policy, fourteenth cause of action for violation of the Ralph Civil Rights Act, fifteenth cause of action for violation of the Tom Bane Civil Rights Act, sixteenth cause of action for intentional infliction of emotional distress, and seventeenth cause of action for negligent supervision and retention.

In the motion, Defendants argue that “Plaintiff’s Complaint only contains conclusory allegations and do [sic] not set forth specific facts to state a plausible claim for relief. As such, the [Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021] does not bar arbitration of Plaintiff’s claims.” (Mot. at p. 18:22-24.) The Court notes that it is unclear what specific claim and/or cause of action Defendants assert is insufficiently pled. In addition, the Complaint contains numerous factual allegations, as discussed above. Defendants do not cite any legal authority to support the proposition that the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act does not apply here.

Defendants also assert that “14 of Plaintiff’s 17 claims (causes of action 2, 3, 5-17) do not even purport to allege a claim of sexual harassment and EFAA is facially inapplicable to those causes of action.” (Mot. at p. 18:26-28.) But a “claim of sexual harassment” is not the applicable standard. As set forth above, 9 U.S.C. section 402, subdivision (a) provides that “[n]otwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute…no predispute arbitration agreement…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.” (Emphasis added.) As discussed, “[t]he 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 [18 USCS § 2246] or similar applicable Tribal or State law, including when the victim lacks capacity to consent,” and “[t]he term ‘sexual harassment dispute’ means a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.” ((Id., § 401(3)-(4).)

The Court find that Plaintiff has the better argument that the first, second, third, fourth, fifth, sixth, seventh, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, and seventeenth causes of action of the Complaint “relate[] to the sexual assault dispute or the sexual harassment dispute.” (9 U.S.C. section 402, subd. (a).) Thus, the Court finds that Plaintiff has demonstrated that the subject arbitration provision in the “Application for Employment” is not “valid or enforceable” with respect to these causes of action. (Ibid.)

However, the Court does not find that Plaintiff has shown that the eighth cause of action for failure to provide reasonable accommodation or the ninth cause of action for failure to engage in a good-faith interactive process “relate[] to the sexual assault dispute or the sexual harassment dispute.” (9 U.S.C. section 402, subd. (a).) Plaintiff acknowledges that “[t]he only two causes of action that are not directly based on sexual harassment and sexual assault are Plaintiff’s causes of action for failure to accommodate and failure to engage in a good-faith interactive process.” (Opp’n at p. 7:20-23.) Plaintiff argues that the eighth and ninth causes of action “cannot be parceled out and litigated in a separate forum,” but does not cite any binding legal authority in support of this assertion. (See Opp’n at p. 8:16-20.)

Plaintiff also asserts that “the purported agreement is both procedurally and substantively unconscionable.” (Opp’n at p. 5:1-2.) In light of the foregoing, this argument is only applicable to the remaining eighth and ninth causes of action of the Complaint.

Procedural unconscionability concerns the manner in which the contract was negotiated and the parties’ circumstances at that time. It focuses on the factors of oppression or surprise. ((Kinney v. United Healthcare Servs. (1999) 70 Cal.App.4th 1322, 1329.) “Oppression generally takes the form of a contract of adhesion, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it. In the case of arbitration agreements in the employment context, the economic pressure exerted by employers on all but the most sought-after employees may be particularly acute, for the arbitration agreement stands between the employee and necessary employment, and few employees are in a position to refuse a job because of an arbitration requirement.” ((Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 84 [internal quotations and citations omitted].) “Surprise involves the extent to which the supposedly agreed-upon terms of the bargain are hidden in a prolix printed form drafted by the party seeking to enforce the disputed terms.” ((A & M Produce Co. v. FMC Corp. (1982) 135 Cal.App.3d 473, 486 [internal quotations omitted].)

Plaintiff argues that “Exhibit A is procedurally unconscionable to a high degree. Exhibit A was a condition of employment. Plaintiff was never told he could negotiate the terms, or that he could refuse to sign without losing his job, or opt out.” (Opp’n at p. 11:18-20.) Plaintiff appears to be relying on the declaration of Efrain Aquino in support of this assertion. However, as set forth above, the Court sustains Defendants’ evidentiary objection to the factual assertions in the Aquino Declaration. (See Defendants’ Evidentiary Objection No. 1.)

Plaintiff also asserts that “Exhibit A, as with all of the prior versions, is drafted in a tiny font and dense, making it very difficult to read…” (Opp’n at p. 11:21-22.) Plaintiff cites to Hasty v. American Automobile Assn. etc. (2023) 98 Cal.App.5th 1041, 1056, where the Court of Appeal noted that “[t]urning to the element of surprise, ‘surprise’ occurs where the arbitration agreement is ‘written in an extremely small font’ with ‘visually impenetrable’ paragraphs ‘filled with statutory references and legal jargon.’” In the reply, Defendants counter that “the Arbitration Agreement uses bold and underlined letters to highlight the Arbitration Agreement.” (Reply at p. 5:4-5.)

Based on the foregoing, the Court finds that Plaintiff has demonstrated a low level of procedural unconscionability.

Plaintiff also asserts that “the arbitration provisions are substantively unconscionable.” (Opp’n at p. 12:25.) “Substantive unconscionability pertains to the fairness of an agreement’s actual terms and to assessments of whether they are overly harsh or one-sided. A contract term is not substantively unconscionable when it merely gives one side a greater benefit; rather, the term must be so one-sided as to shock the conscience.” (Carmona v. Lincoln Millennium Car Wash, Inc., supra, 226 Cal.App.4th at p. 85 [internal quotation and citation omitted].)

Plaintiff asserts that “Exhibit A waives Plaintiff’s right to initiate or participate in any representative action, including representative PAGA claims…PAGA waivers are invalid as contrary to California’s public policy.” (Opp’n at p. 13:3-5.) In support of this assertion, Plaintiff cites to paragraph 5 of Exhibit A, which provides that “[a]ll claims brought under this binding arbitration Agreement shall be brought in the individual capacity of myself or the Company. This binding arbitration Agreement shall not be construed to allow or permit the consolidation or joinder of other claims or controversies involving any other employees or parties, or permit such claims or controversies to proceed as a class action, collective action or any similar representative action. No arbitrator shall have the authority under this agreement to order any such class, collective or representative action. By signing this agreement, I am agreeing to waive any substantive or procedural rights that I may have to bring an action on a class, collective, representative, or other similar basis.” (Mahn Decl., ¶ 3, Ex. A, ¶ 5.) However, the Court notes that paragraph 5 does not specifically mention the Private Attorneys General Act (“PAGA”) or “representative PAGA claims.” (Opp’n at p. 13:4.)

Lastly, Plaintiff asserts that “Exhibit A waives Plaintiff’s right to file a claim with an administrative agency.” (Opp’n at p. 13:11.) However, the Court is unable to locate any such provision in Exhibit A, and Plaintiff does not cite any such provision. Moreover, as set forth above, paragraph 4 in Exhibit A provides, inter alia, that “nothing herein shall prevent me from filing and pursuing proceedings before the California Department of Fair Employment and Housing, or the United States Equal Employment Opportunity Commission (although if I choose to pursue a claim following the exhaustion of such administrative remedies, that claim would be subject to the provisions of this Agreement).” (Mahn Decl., ¶ 3, Ex. A, ¶ 4.)

Based on the foregoing, the Court does not find that Plaintiff has demonstrated that the subject arbitration provision is substantively unconscionable. “The prevailing view is that [procedural and substantive unconscionability] must both be present in order for a court to exercise its discretion to refuse to enforce a contract or clause under the doctrine of unconscionability.” (Armendariz v. Foundation Health Psychcare Services, Inc., supra, 24 Cal.4th at p. 114 [internal emphasis omitted].) Accordingly, the Court does not find that Plaintiff has met his burden of demonstrating that the “Application for Employment” is unenforceable due to unconscionability.

Based on the foregoing, Plaintiff’s motion to compel arbitration is granted as to the eighth and ninth causes of action of the Complaint.

Plaintiff’s motion to compel arbitration is denied as to the first, second, third, fourth, fifth, sixth, seventh, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, and seventeenth causes of action of the Complaint.

Plaintiff’s motion to “dismiss this entire action with prejudice” is denied. (Mot. at p. 2:8.)

The action is stayed only as to the eighth and ninth causes of action of the Complaint pending completion of arbitration of Plaintiff’s arbitrable claims. The Court notes that pursuant to Code of Civil Procedure section 1281.4, “[i]f a court of competent jurisdiction, whether in this State or not, 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…If the issue which is the controversy subject to arbitration is severable, the stay may be with respect to that issue only.”[1]

The Court sets an arbitration completion status conference on May 14, 2025, at 10:00 a.m. in Dept. 50. The parties are ordered to file a joint report regarding the status of the arbitration five court days prior to the status conference, with a courtesy copy delivered directly to Department 50.¿¿

[1]The Court also notes that in Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 714, the California Supreme Court noted that “Plaintiff contends that a stay of her action with respect to Kaiser will lead to piecemeal and protracted litigation because she has also named as defendants the two blood banks. We agree that plaintiff may properly join the blood banks as parties defendant…but that right does not empower her to avoid her duty to arbitrate any dispute with Kaiser. We point out that under these circumstances, the trial court is not required to stay all proceedings against the defendants who are not entitled to arbitration; the court may, in its discretion, sever the action as to the blood banks or limit any stay to those issues subject to arbitration. (See Code Civ. Proc., § 1281.4; Cook v. Superior Court (1966) 240 Cal.App.2d 880, 885 [50 Cal.Rptr. 81].).”

Superior Court of California

County of Los Angeles

Department 50