Judge Upinder S. Kalra, Case Number: 24STCV27394, Date: 2025-04-23 Tentative Ruling

1. An Order compelling arbitration and staying proceedings pursuant to 9 U.S.C. § 1, et seq. (the Federal Arbitration Act) and Code Civ. Proc (CCP) §§ 1281.2 and 1281.4.

On October 18, 2024, Plaintiff Constant Petro (Plaintiff) filed a Complaint against Defendants Maxim Healthcare Services, Inc., Toni Earl, and Jeffrey Paul Spilky (Defendants) with ten causes of action for: (1) Lab. Code § 1102.5 Retaliation; (2) FEHA Discrimination: Disparate Treatment; (3) FEHA Discrimination: Disparate Impact; (4) Failure to Prevent Harassment by Nonemployee; (5) FEHA Retaliation; (6) FEHA Failure to Prevent Harassment, Discrimination, or Retaliation; (7) Constructive Discharge; (8) Failure to Provide Employment Records Upon Demand; (9) Assault; and (10) Sexual Battery.[1]

According to the Complaint, Plaintiff worked for Defendant Maxim Healthcare Services, Inc. (Maxim) as a home care nurse. She alleges that Maxim assigned a new patient for her around October 2023 where she was sexually harassed by the patient’s mother, Defendant Toni Earl (Earl), and uncle, Defendant Jeffrey Paul Spilky (Spilky). Plaintiff further alleges that she reported this harassment to Maxim who did not take corrective action, cut her hours, and cut her pay. Plaintiff alleges she was constructively discharged.

On January 16, 2025, Maxim filed the instant motion to compel arbitration. On April 10, 2025, Plaintiff filed an opposition. On April 16, 2025, Maxim filed a Reply.

This court is unaware of any legal authority which requires a court to rule on evidentiary objections on a motion, except as to a motion for summary motion/adjudication [CCP §¿437c (q)] or a special motion to strike [CCP § 425.16 (b)(2); see also, Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949.]¿¿As such, this court respectfully declines to rule on any of these objections.¿

The Federal Arbitration Act (“FAA”), while a federal statute, applies in California courts and requires state courts to enforce arbitration agreements as required by the federal common law developed under the FAA. (See Southland Corp. v. Keating (1984) 465 U.S. 1, 15-16 (Southland Corp.); Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066, 1074-78, superseded by statute on another ground as stated in Ferguson v. Corinthian Colleges, Inc. (9th Cir. 2013) 733 F.3d 928, 937.).) The FAA preempts and invalidates state law and state judicial decisions that disfavor arbitration or require arbitration provisions to pass higher scrutiny. (Southland Corp., supra, at p. 12; Perry v. Thomas (1987) 482 U.S. 483, 490.) If the parties designate the FAA applies, then California arbitration law is preempted. (See, e.g., Rodriguez v. American Techs., Inc. (2006) 136 Cal.App.4th 1110, 1121-1122.)¿However, courts have found that where the FAA is found not to apply, the California Arbitration Act (Code Civ. Proc. § 1280 et seq.) applies. (See Valencia v. Smyth (2010) 185 Cal.App.4th 153, 178 (Valencia).)¿

¿A court’s inquiry is limited to a determination of (1) whether a valid arbitration agreement exists and (2) whether the arbitration agreement covers the dispute. (9 U.S.C. § 4; Chiron Corp. v. Ortho Diagnostics Systems, Inc. (9th Cir. 2000) 207 F.3d 1126, 1130; Howsam v. Dean Witter Reynolds, Inc. (2002) 537 U.S. 79, 84; see Simula, Inc. v. Autoliv, Inc. (9th Cir. 1999) 175 F.3d 716, 720 [if the finding is affirmative on both counts the FAA requires the Court to enforce the arbitration agreement in accordance with its terms]; see Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961 [In determining the enforceability of an arbitration agreement, the court first 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”] Lacayo v. Cataline Restaurant Group Inc. (2019) 38 Cal.App.5th 244, 257 (Lacayo) [Where moving party meets initial burden, “the party opposing arbitration must prove by a preponderance of the evidence any defense to the petition”].)¿

“An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” (United Steelworkers of America v. Warrior & Gulf Navigation Co. (1960) 363 U.S. 574, 582-583.)¿¿

¿Moreover, the general rule is that the FAA governs all agreements to arbitrate in contracts “involving interstate commerce.” (Higgins v. Superior Court (2006) 140 Cal.App.4th 1238, 1247.) The term “involving” commerce “is broad and is indeed the functional equivalent of “affecting’ commerce.” (Allied-Bruce Terminix Companies, Inc. v. Dobson (1995) 513 U.S. 265, 273-274.) The U.S. Supreme Court has held that this broad interpretation includes employment contracts. (See Circuit City Stores v. Adams (2001) 532 U.S. 105, 106.) The defendant bears the burden of proving applicability of the FAA by showing that its activities constitute interstate commerce. (Hoover v. Am. Income Life Ins. Co. (2012) 206 Cal.App.4th 1193, 1207.) Failure to demonstrate that the employment agreement affects interstate commerce renders the FAA inapplicable. (See Lane v. Francis Capital Management LLC (2014) 224 Cal.App.4th 676, 687-688 (Lane); Woolls v. Superior Court (2005) 127 Cal.App.4th 197, 212.)¿

Even where the FAA governs the interpretation of arbitration clauses, California law governs whether an arbitration agreement has been formed in the first instance. (Baker v. Osborne Development Corp. (2008) 159 Cal.App.4th 884, 893.)¿

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).)¿¿¿¿¿

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, Maxim met its initial burden that an arbitration agreement exists. First, Maxim included a copy of the Mutual Arbitration Agreement electronically signed by Plaintiff with its motion. (Nikzad Decl., Exhibit D.) 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. Second, the FAA applies because the parties specifically contracted for it to do so. (Nikzad Decl., Exhibit D.)

Plaintiff argues that she is excused from submitting her case to arbitration pursuant to the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA). Defendant responds that the allegations in the complaint fall short of an actionable claim for sexual harassment or sexual assault. In addition, the perpetrators of the conduct were not non-employees of Defendant.[2]

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).) “Under the EFAA, when a plaintiff's lawsuit contains at least one claim that fits within the scope of the act, the arbitration agreement is unenforceable as to all claims asserted in the lawsuit.” (Liu v. Miniso Depot CA, Inc. (2024) 105 Cal.App.5th 791, 800 (Liu).)

Here, the EFAA applies to Plaintiff’s Complaint. First, Plaintiff unequivocally has a sexual harassment dispute because she alleges that Defendants Earl and Spilky subjected her to sexual harassment, assault, and battery and that when she reported this to Maxim, they cut her hours, pay, and she was constructively discharged. (Compl. ¶¶ 24-33.) Second, pursuant to Doe v. Second Street Corp. (2024) 105 Cal.App.5th 552, 577 and Liu, Plaintiff’s entire case is excluded from arbitration under EFAA as it relates to sexual harassment. (Liu, supra, 105 Cal.App.5th at 800.)

[1] The caption is different than the body of the Complaint.

[2]The court rejects this argument out of hand. In 2003, Govt. Code § 12940, subdivision (j)(1), was amended to impose liability on employers when nonemployees sexually harasses employees.

[3] The court declines to develop the parties’ unconscionability arguments.