Judge: Upinder S. Kalra, Case: 23STCV17834, Date: 2023-11-08 Tentative Ruling

Case Number: 23STCV17834    Hearing Date: November 8, 2023    Dept: 51

Tentative Ruling

Judge Upinder S. Kalra, Department 51

HEARING DATE:   November 8, 2023                                         

CASE NAME:           Stephanie Abundis v. Comprehensive Surgical Solutions, LLC, et al.

CASE NO.:                23STCV17834

MOTION TO COMPEL ARBITRATION

MOVING PARTY:  Defendants Comprehensive Surgical Solutions, LLC and Nick Philpott

RESPONDING PARTY(S): Plaintiff Stephanie Abundis

REQUESTED RELIEF:

1.      An Order Compelling Arbitration;

2.      An Order Dismissing or Staying the Action Pending Arbitration.

TENTATIVE RULING:

1.      Motion to Compel Arbitration is DENIED;

2.      Motion requesting dismissal or stay pending arbitration is DENIED.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

On July 28, 2023, Plaintiff Stephanie Abundis (Plaintiff) filed a Complaint against Defendants Comprehensive Surgical Solutions, LLC and Nick Philpott (Defendants) with seven causes of action for: (1) Discrimination on the Basis of Sex/Gender in Violation of FEHA; (2) Sexual Harassment in Violation of FEHA; (3) Retaliation for Complaining of Discrimination and/or Harassment on the Basis of Sex/Gender in Violation of FEHA; (4) Failure to Prevent Discrimination, Harassment, and Retaliation in Violation of FEHA; (5) Violation of Labor Code § 1102.5; (6) Wrongful Constructive Termination of Employment in Violation of Public Policy; and (7) Intentional Infliction of Emotional Distress.

According to the Complaint, Plaintiff began working for Defendant Comprehensive Surgical Solutions in October 2022 as an Executive Assistant. Plaintiff alleges that Defendant Philpott, a Co-Owner of Defendant Comprehensive Surgical Solutions, began targeting her in January 2023. In particular, Plaintiff alleges that Defendant Philpott made inappropriate sexual comments to Plaintiff on several occasions, kept asking her out, touched her, and made other inappropriate comments. Plaintiff alleges she reported Defendant Philpott’s behavior but was subsequently victim-blamed and was not kept informed of progress pertaining to any investigation by HR. Additionally, Plaintiff alleges that, as a result of her complaints, she was treated differently by other employees and supervisors and that she developed extreme anxiety because she did not know if she would continue to encounter Defendant Philpott. Plaintiff alleges that because of this developed anxiety, she was forced to resign on May 19, 2023.

On September 18, 2023, Defendants filed the instant motion to compel arbitration. On October 26, 2023, Plaintiff timely filed an opposition. On November 1, 2023, Defendants timely filed a reply.

LEGAL STANDARD:

Under California law, the trial court has authority to compel arbitration pursuant to CCP §1281.2 where a written agreement for such arbitration exists and one of the parties refuses to arbitrate.  Specifically, the statute provides that, “[o]n 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 arbitrate the controversy exists.”  The statute further sets forth four grounds upon which the trial court may refuse to compel arbitration: (a) the right to compel arbitration was waived, (b) recission of the agreement, (c) there is a pending action or special proceeding with a third party, arising out of the same transaction; and (d) petitioner is a state or federally chartered depository institution. 

“[T]he petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence . . . .”¿¿(Giuliano v. Inland Empire Personnel, Inc.¿(2007) 149 Cal.App.4th 1276, 1284¿(Guiliano).)¿“In determining whether an arbitration agreement applies to a specific dispute, the court may examine only the agreement itself and the complaint filed by the party refusing arbitration [citation]. The court should attempt to give effect to the parties' intentions, in light of the usual and ordinary meaning of the contractual language and the¿circumstances under which the agreement was made.”¿¿(Weeks v. Crow¿(1980) 113 Cal.App.3d 350, 353.)¿ “To determine whether a contractual arbitration clause requires arbitration of a particular controversy, the controversy is first identified and the issue is whether that controversy is within the scope of the contractual arbitration clause.”¿¿(Titolo¿v. Cano¿(2007) 157 Cal.App.4th 310, 316.)¿ “Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration. The court should order them to arbitrate unless it is clear that the arbitration clause cannot be interpreted to cover the dispute.”¿¿(California Correctional Peace Officers¿Ass'n¿v. State¿(2006) 142 Cal.App.4th 198, 205.)¿¿¿ 

“[A] party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. [Citation.] In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, to reach a final determination.”¿¿(Giuliano, supra, at p. 1284.)¿ 

ANALYSIS:

Existence of Arbitration Agreement

In determining the enforceability of an arbitration agreement, the court considers “two ‘gateway issues’ of arbitrability: (1) whether there was an agreement to arbitrate between the parties, and (2) whether the agreement covered the dispute at issue.”¿ (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961 (Omar).)¿¿¿  

1.      Agreement Between Parties:

The moving party can meet its initial burden of proving the existence of an arbitration agreement by attaching a copy of the Agreement to this motion bearing the signature of the opposing party. (See Bannister v. Marinidence Opco, LLC (2021) 64 Cal.App.5th 541, 541-543 [“The party seeking arbitration can meet its initial burden by attaching to the petition a copy of the arbitration agreement purporting to bear the¿respondent's signature.”].) Alternatively, the moving party can meet its initial burden by setting forth the agreement’s provisions in the motion. (See Cal. Rules of Court, rule 3.1330; see also Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 219.) Here, Defendants attached a copy of the Mutual Arbitration Agreement (the Agreement) with supporting declaration of Ana Gilliam, the Controller for Defendant Comprehensive Surgical Solutions. (Gilliam Decl. ¶¶ 7, 8, Exhibit A.) Plaintiff electronically signed the Agreement on October 10, 2022. (Exhibit A.) Both California and Federal law provide that electronic signatures on arbitration agreements are valid. The California Uniform Electronic Transactions Act (“UETA”) indicates that an electronic signature has the same legal effect as handwritten signature. Plaintiff does not challenge her signature’s authenticity.

Thus, Moving Defendants satisfied their initial burden to compel arbitration.

1.      The Agreement Covers the Dispute at Issue:

Applicability of Agreement to Subject Dispute

Defendants contend the Agreement covers the subject dispute because Plaintiff filed an employment action that is not otherwise excluded by the Agreement. Plaintiff did not directly oppose this argument.[1]

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(d).) “[A]t the election of the person alleging conduct constituting a sexual harassment 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 harassment dispute.” (Id. at § 402(a).) (italics added.) “An issue as to whether this chapter applies with respect to a dispute shall be determined under Federal Law.” (Id. at subd. (b).)

Plaintiff appears to concede that the alleged conduct supporting the second cause of action for sexual harassment, the third and fifth causes of action for retaliation, and the seventh cause of action for intentional infliction of emotional distress are proscribed by the Act. However, Plaintiff questions whether the first cause of action for sex and gender discrimination, the fourth cause of action for failure to prevent discrimination, and the sixth cause of action for constructive discharge are sufficiently related to claims of sexual harassment to be covered by the Act. A close examination of the factual allegations contained in the complaint resolves any doubt. Clearly, the entire complaint relates to common, factual allegations, outlining a course of conduct of sexual harassment. (SEE Complaint ¶¶7a-7kk.) While the alleged conduct may give rise to separate causes of action, the conduct is founded on allegations of sexual harassment as defined by the Act. To be sure, Plaintiff’s Complaint for sexual harassment arises under violation of FEHA, which defines harassment because of sex as including “sexual harassment” and “gender harassment” that “need not be motivated by sexual desire.” (Cal. Gov. Code § 12940(j)(4)(c).) Moreover, Plaintiff’s Complaint alleges that Defendant Philpott subjected Plaintiff to inappropriate comments, unwelcome sexual advances, and unwanted touching and that Defendant Comprehensive Surgical Solutions failed to protect her from such harassment and caused her constructive termination.[2] (Compl. ¶¶ 8, 9.) Accordingly, the Court rejects Plaintiff’s attempts to exclude the first, fourth and sixth causes of action from the protections of the Act.[3]

Therefore, the Court finds that the Agreement and the Act exclude the instant dispute from compelled arbitration.[4]

CONCLUSION:

            For the foregoing reasons, the Court decides the pending motion as follows:

3.      Motion to Compel Arbitration is DENIED;

4.      Motion requesting dismissal or stay pending arbitration is DENIED.

Moving party is to give notice.

IT IS SO ORDERED.

Dated:             November 8, 2023                  __________________________________                                                                                                                Upinder S. Kalra

                                                                                    Judge of the Superior Court