Judge: Virginia Keeny, Case: 22VECV00827, Date: 2022-08-26 Tentative Ruling
Case Number: 22VECV00827 Hearing Date: August 26, 2022 Dept: W
Avitia v. keith
heerdt, et al.[1]
COMPEL
ARBITRATION
Date
of Hearing: August 26, 2022 Trial Date: None set.
Department: W Case
No.: 22VECV00827
Moving Party: Defendants
Sher Gelb, an accountancy corporation, and Keith Heerdt
Responding Party: Plaintiff
Amelia Avitia
BACKGROUND
This is an employment action arising
out of Plaintiff Amelia Avitia’s (“Plaintiff”) employment as a business manager
for Sher Gelb, an accountancy corporation (“Sher Gelb”). Keith Heerdt (“Heerdt”)
was one of Sher Gelb’s firm partners.
On June 17, 2022, Plaintiff filed a Complaint
against Sher Gelb, Heerdt (collectively “Defendants”), and Does 1 through 50,
asserting eight causes of action: (1) Hostile Work Environment Sexual
Harassment in Violation of FEHA; (2) Quid Pro Quo Sexual Harassment in
Violation of FEHA; (3) Discrimination on the Basis of Sex/Gender in Violation
of FEHA; (4) Retaliation in Violation of FEHA; (5) Failure to Prevent
Harassment, Discrimination, or Retaliation in Violation of FEHA; (6)
Whistleblower Retaliation in Violation of California Labor Code Section 1102.5;
(7) Wrongful Termination in Violation of Public Policy; and (8) Intentional
Infliction of Emotional Distress.
Defendants now move to compel Plaintiff
to submit her claims to arbitration.
Plaintiff opposes, arguing that the
Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021
bars compulsion of her claims to arbitration.
Defendants filed a reply.
[Tentative] Ruling
Defendants Sher Gelb, an accountancy
corporation, and Keith Heerdt’s motion to compel arbitration of Plaintiff
Amelia Avitia’s Complaint is GRANTED.
ANALYSIS
Legal
Standard
A proceeding to compel arbitration is in essence a suit in equity to
compel specific performance of a contract. (Freeman
v. State Farm Mutual Auto Insurance Co. (1975) 14 Cal.3d 473, 479.) Such
enforcement may be sought by a party to the arbitration agreement. (Code Civ.
Proc., § 1280, subd. (e)(1).)
The petition to compel arbitration functions as a motion and is to be
heard in the manner of a motion, i.e., the facts are to be proven by affidavit
or declaration and documentary evidence with oral testimony taken only in the
court’s discretion. (Code Civ. Proc., § 1290.2; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th
394, 413-414.) The petition to compel must set forth the provisions of the
written agreement and the arbitration clause verbatim, or such provisions must
be attached and incorporated by reference. (Cal. Rules of Court, rule 3.1330;
see Condee v. Longwood Mgmt. Corp. (2001)
88 Cal.App.4th 215, 218-219.)
In ruling on a petition to compel arbitration, the court must determine
whether a valid agreement to arbitration exists, and if it does, whether the
agreement encompasses the dispute at issue. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.)
“The party seeking arbitration bears the burden of proving the existence
of an arbitration agreement, and the party opposing arbitration bears the
burden of proving any defense, such as unconscionability.” (Pinnacle Museum Tower Assn. v. Pinnacle
Market Development (US), LLC (2012) 55 Cal.4th 223, 236 (Pinnacle).)
“There is no public policy favoring arbitration of disputes which the
parties have not agreed to arbitrate.” (Engineers & Architects Assn. v.
Community Development Dept. (1994) 30 Cal.App.4th 644, 653.) Nevertheless,
the strong public policy promoting private arbitration of civil disputes gives
rise to a presumption in favor of arbitrability (Boghos v. Certain
Underwriters at Lloyd’s of London (2005) 36 Cal.4th 495, 502), imposes the
burden of proof on the party resisting arbitration (Coast Plaza Doctors
Hospital v. Blue Cross of Cal. (2000) 83 Cal.App.4th 677, 686-687), and
compels the Court to construe liberally the terms of the arbitration agreement
(Bigler v. Harker School (2013)
213 Cal.App.4th 727, 738) and resolve all doubts in favor of arbitration
(Vianna v. Doctors’ Management Co. (1994) 27 Cal.App.4th 1186, 1189).
Analysis
Existence of an Arbitration Agreement and Whether It Covers Plaintiff’s Claims
Defendants move to compel arbitration based on the arbitration agreement
that Plaintiff executed as part of her onboarding for her employment with Sher
Gelb. (Oman Decl. ¶¶ 5-7, Ex. A.) The specific arbitration provision states
that it applies to “all statutory, contractual, and/or common law claims
arising from employment with the Firm including . . . tort claims; claims for
retaliation, discrimination or harassment of any kind, including claims based
on sex, . . . Age Discrimination in Employment Act, . . . the California Fair
Employment and Housing Act, [and]. . . the California Labor Code.” (Id.
Ex. A.)
Defendants proffer sufficient evidence of an existence of an arbitration
agreement and that the broad scope covers Plaintiff’s claims. Plaintiff does not
dispute that there is an arbitration agreement and the scope of the agreement covers
Plaintiff’s claims. Instead, Plaintiff argues that the agreement is
unenforceable because of the Ending Forced Arbitration of Sexual
Assault and Sexual Harassment Act of 2021.
Applicability of Ending Forced Arbitration of Sexual Assault and Sexual
Harassment Act of 2021
On March 3, 2022, President
Joe Biden signed into law the Ending Forced Arbitration of Sexual Assault and
Sexual Harassment Act of 2021 (the “Act”). The Act amends the Federal
Arbitration Act, 9 U.S.C. § 1, et seq., and renders unenforceable (at option of person alleging assault
or harassment) pre-dispute arbitration agreements relating to claims of sexual
assault or sexual harassment:
Notwithstanding 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.
(9 U.S.C. § 402, subd. (a).)
The parties dispute when Plaintiff’s claims
accrued.[2]
Plaintiff argues that her sexual harassment and related claims “arose” at the
time she filed her Complaint, i.e., June 17, 2022. The court disagrees. It is
undisputed that the harassing conduct occurred before the Act was enacted. (See
Opposition 4:16-17 [conceding the timing]; see also Complaint ¶¶ 11-30.)
Plaintiff does not cite any supporting authority for her theory that a claim
arises simply through the operative filing of a pleading, nor can she because a
claim arises based on the awareness of the adverse employment action. (See
Reply 6:26-7:7 [citing supporting authority].)
Plaintiff was terminated on August 6, 2021, so all acts of sexual
harassment necessarily occurred prior to that date and well before the
enactment of the Act. “Generally, a
cause of action accrues . . . when a suit may be maintained. [Citations.]
‘Ordinarily this is when the wrongful act is done and the obligation or the
liability arises, but it does not “accrue until the party owning it is entitled
to begin and prosecute an action thereon.”’ [Citation.] In other words, ‘[a]
cause of action accrues “upon the occurrence of the last element essential to
the cause of action.”’” (Howard Jarvis Taxpayers’ Ass’n v. City of La Habra (2001)
25 Cal4th 809, 815.) Plaintiff’s cause
of action arose or accrued at the latest on August 6, 2021. Plaintiff’s
reliance on Sellino v. Galiher, et al., ESX-L-8519-21 (N.J. Super. Ct.
May 25, 2022) is unavailing for the reasons stated in the Reply, i.e., it is a
non-California case that did not address the actual issue here. (Reply 6:7-24.)
Plaintiff alternatively argues that the Act
should be applied retroactively. The court disagrees. Plaintiff cites
statements from Senate Majority Leader Chuck Schumer and Vice President Kamala
Harris supporting the retroactivity of the law. (Opposition 6:7-16.) But
reliance on this legislative history is improper when the plain text of the law
here is not ambiguous. (Hunt v. Superior Court (1999) 21 Cal.4th 984,
1000.) The law does not otherwise provide for retroactivity, and this court
finds it appropriate to follow the presumption against retroactive application
of statutes. (Quarry v. Doe I (2012) 53 Cal.4th 945, 955.)
Accordingly, the Act does not prohibit
arbitration of Plaintiff’s claims.