Judge Thomas D. Long, Case Number: 24STCV08574, Date: 2025-01-23 Tentative Ruling

On December 2, 2022, Plaintiff Faith Stowers filed this action against Defendants NBCUniversal Media LLC, Bravo Media, LLC, and EFT Media Productions LLC arising from her employment on a reality television show.

On November 8, 2023, EFT Media Productions filed a motion to compel arbitration. On June 10, 2024, NBCUniversal Media and Bravo Media filed a notice of joinder.

EFT Media Productions’ evidentiary objections to the Declaration of Faith Stowers are sustained as irrelevant and improper opinions or legal conclusions.

When seeking to compel arbitration of a plaintiff’s claims, the defendant must allege the existence of an agreement to arbitrate. (Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 219.) The burden then shifts to the plaintiff to prove the falsity of the agreement. (Ibid.) After the Court determines that an agreement to arbitrate exists, it then considers objections to its enforceability. (Ibid.)

The Court must grant a petition to compel arbitration unless the defendant has waived the right to compel arbitration or if there are grounds to revoke the arbitration agreement. (Ibid.; Code Civ. Proc., § 1281.2.) Under California law and the Federal Arbitration Act (“FAA”), an arbitration agreement may be invalid based upon grounds applicable to any contract, including unconscionability, fraud, duress, and public policy. (Sanchez v. Western Pizza Enterprises, Inc. (2009) 172 Cal.App.4th 154, 165-166.)

On May 5, 2015, May 22, 2016, and May 19, 2017, Plaintiff signed Appearance Release Forms that each contained an arbitration agreement. Defendants provide a copy of the arbitration agreements. (Motion, Exs. 1-3 [“Arbitration Agreement”].) Through the Arbitration Agreement, the parties agreed to arbitrate “any controversy or claim arising out of or relating to this Agreement,” which “include[es] the scope or applicability of this agreement to arbitrate.”

Plaintiff argues that the delegation clause is unconscionable and is not “clear and unmistakable.” (Opposition at pp. 10-14.) For a delegation clause to be effective, the language of the clause must be clear and unmistakable, and the delegation must not be revocable under state contract defenses such as fraud, duress, or unconscionability. (Aanderud v. Superior Court (2017) 13 Cal.App.5th 880, 892.) An unconscionability challenge must be specifically directed at the delegation provision, not the entire arbitration agreement. (Id. at p. 895.)

In the agreements here, the parties agreed to arbitrate any dispute “INCLUDING, WITHOUT LIMITATIONS, THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO MEDIATE AND ARBITRATE” (Motion, Ex. 1 ¶ 23) or any dispute “INCLUDING THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE.” (Motion, Ex. 2 ¶ 14, Ex. 3 ¶ 14.) This is a clear and unmistakable delegation of the issue of “scope or applicability” to the arbitrator. Regardless, Plaintiff does not dispute that her claims are within the scope of the agreement.

Defendants have satisfied their burden of showing the existence of an agreement to arbitrate.

Arbitration agreements for FEHA claims must (1) provide for neutral arbitrators, (2) provide for more than minimal discovery, (3) require a written award, (4) provide for all of the types of relief that would otherwise be available in court, and (5) not require employees to pay either unreasonable costs or any arbitrators’ fees or expenses as a condition of access to the arbitration forum. (Armendariz, supra, 24 Cal.4th at p. 102.) These requirements may apply to non-FEHA employment claims. (See Pinela v. Neiman Marcus Group, Inc. (2015) 238 Cal.App.4th 227, 254 [applying the Armendariz factors in the context of claims under the Labor Code].)

The arbitration agreements provide for arbitration with JAMS in accordance with the JAMS Rules, using a neutral arbitrator. The parties “shall be permitted discovery adequate to secure the necessary information to present such claim or defend such claim.” The arbitrator will issue a written decision and may award any remedy that would have been available in court. Defendants will pay all costs that are unique to arbitration. (Motion, Ex. 1 ¶ 23 [First Agreement], Ex. 2 ¶ 14 [Second Agreement], Ex. 3 ¶ 14 [Third Agreement].)

For an arbitration agreement to be unenforceable as unconscionable, both procedural and substantive unconscionability must be present. (Armendariz, supra, 24 Cal.4th at p. 114.) “[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” (Ibid.)

“The relevant factors in assessing the level of procedural unconscionability are oppression and surprise.” (Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 997.) “‘The oppression component arises from an inequality of bargaining power of the parties to the contract and an absence of real negotiation or a meaningful choice on the part of the weaker party.’” (Abramson v. Juniper Networks, Inc. (2004) 115 Cal.App.4th 638, 656.) “The circumstances relevant to establishing oppression include, but are not limited to (1) the amount of time the party is given to consider the proposed contract; (2) the amount and type of pressure exerted on the party to sign the proposed contract; (3) the length of the proposed contract and the length and complexity of the challenged provision; (4) the education and experience of the party; and (5) whether the party’s review of the proposed contract was aided by an attorney.” (Grand Prospect Partners, L.P. v. Ross Dress for Less, Inc. (2015) 232 Cal.App.4th 1332, 1348, fn. omitted.) “The component of surprise arises when the challenged terms are ‘hidden in a prolix printed form drafted by the party seeking to enforce them.’” (Ibid.) “The adhesive nature of the employment contract requires [the court] to be ‘particularly attuned’ to [Plaintiff’s] claim of unconscionability [citation], but [the court] do[es] not subject the contract to the same degree of scrutiny as ‘[c]ontracts of adhesion that involve surprise or other sharp practices’ [citation].” (Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1245 (Baltazar).)

Plaintiff argues that the arbitration agreement is procedurally unconscionable because it is a non-negotiable contract of adhesion. (Opposition at pp. 9-10.) Arbitration agreements that are “take it or leave it” have some degree of procedural unconscionability. (Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 796.)

Plaintiff also argues that she “was never made aware that ‘agreeing’ to the terms of the arbitration agreements would involve meaningfully compromising her legal rights under California law.” (Opposition at p. 10.) Directly above Plaintiff’s signature on the First Agreement is a statement in capital letters and a bold and underlined font: “I HAVE HAD AMPLE OPPORTUNITY TO READ, AND HAVE INF ACT READ, THIS ENTIRE AGREEMENT. I HAVE ALSO HAD AN OPPORTUNITY TO REVIEW IT WITH AN ATTORNEY OF MY CHOICE SHOULD I ELECT TO DO SO. I FULLY UNDERSTAND ALL OF THE RIGHTS, OBLIGATIONS, PROMISES AND AGREEMENTS. IN PARTICULAR, I UNDERSTAND THAT I AM GIVING UP CERTAIN LEGAL RIGHTS UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, MY RIGHT TO FILE A LAWSUIT IN COURT WITH RESPECT TO ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT.” There are similar statements above Plaintiff’s signature on the Second Agreement and Third Agreement. Plaintiff has not shown procedural unconscionability on this basis.

In sum, Plaintiff has shown slight procedural unconscionability due to the adhesive nature of the agreement, but as explained below, it is not enough.

“‘Substantive unconscionability pertains to the fairness of an agreement’s actual terms and to assessments of whether they are overly harsh or one-sided. [Citations.] 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.’”’ [Citation.]’” (Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 85.)

Plaintiff argues that the arbitration agreement is substantively unconscionable because it does not satisfy the requirements of Armendariz. (Opposition at p. 10.) That is incorrect, as discussed above.

In sum, Plaintiff has not shown only slight procedural unconscionability but no substantive unconscionability, and the Arbitration Agreement should not be invalidated.

Defendants’ motion to compel arbitration is GRANTED. The entire action is STAYED pending the conclusion of the arbitration.

A Status Conference re: Arbitration is scheduled for January 23, 2026 at 8:30 a.m. in Department 48 at Stanley Mosk Courthouse. Five court days before, the parties are to file a joint report stating the name of their retained arbitrator and the status of arbitration.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court