Judge Yolanda Orozco, Case 22STCV25018 2023-03-02 Tentative Ruling

Judge: Yolanda Orozco, Case: 22STCV25018, Date: 2023-03-02 Tentative Ruling

Case Number: 22STCV25018 Hearing Date: March 2, 2023 Dept: 31

MOTION TO COMPEL ARBITRATION &

STAY/DISMISS ACTION

TENTATIVE RULING

Defendant’s Motion to Compel Arbitration is DENIED.

Background

On August 3, 2022, Plaintiff Ronald Rosas filed a Complaint against Defendants Beachbody LLC and Bree Andrews for:

(1) Sexual Orientation and/or Racial Harassment;

(2) Retaliation in violation of Govt. Code § 12900 et seq.

(3) Failure to Prevent Harassment and Retaliation;

(4) Retaliation in Violation of Lab. Code § 1101.5;

(5) Wrongful Termination in Violation of Public Policy, and

(6) Intentional Infliction of Emotional Distress.

On December 9, 2022, Defendant Beachbody LLC filed this instant Motion to Compel Arbitration.

On January 19, 2023, Plaintiff filed opposing papers.

Defendant filed a reply on January 25, 2022.

On February 1, 2023, the Court continued the hearing to allow the parties to submit supplemental briefs as to whether the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “Act”) applied to Plaintiff’s claims and barred enforcement of the Arbitration Agreement.

Both parties submitted supplemental briefs of February 24, 2022.

Legal Standard

Parties may be compelled to arbitrate a dispute upon the court finding that: (1) there was a valid agreement to arbitrate between the parties; and (2) said agreement covers the controversy or controversies in the parties’ dispute.¿ (Code Civ. Proc., § 1281.2; see also Omar v. Ralphs Grocery Co. (2004)¿118 Cal.App.4th 955, 961.)¿¿¿

A party petitioning to compel arbitration has the burden of establishing the existence of a valid agreement to arbitrate and the party opposing the petition has the burden of proving, by a preponderance of the evidence, any fact necessary to its defense. (Banner Entertainment, Inc. v. Superior Court¿(1998) 62 Cal.App.4th 348, 356-57.)¿¿¿

“If a court of competent jurisdiction . . . 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.” (Code Civ. Proc., § 1281.4.)

Discussion

On February 1, 2023, this Court continued Defendant’s Motion to Compel Arbitration so that the parties could provide supplemental briefs as to whether the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “Act”) barred arbitration of Plaintiff’s harassment claims based on sexual orientation. (See Min. Or. 02/01/23.)

Defendant argues that because Plaintiff was subject to name-calling and unfavorable treatment due to his sexual orientation as an openly gay male, Plaintiff was not subject to sexual harassment as defined by federal law because there were no unwelcome sexual advances, requests for sexual favor, or conduct of a sexual nature that constitutes sexual harassment.

Section 1604.11 of the Code of Federal Regulations defines sexual harassment as:

“(a) Harassment on the basis of sex is a violation of section 703 of title VII.Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.

(b) In determining whether alleged conduct constitutes sexual harassment, the Commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.”

(29 C.F.R. § 1604.11)

Although Defendant makes a persuasive argument that sexual orientation harassment is treated differently from sexual harassment based on gender under federal and state law, Defendant fails to point to a section in the Code of Federal Regulations that defines sexual orientation harassment as harassing conduct that is separate and distinct from sexual harassment based on gender. Since Congress has not created a distinction between sexual harassment based on gender and sexual harassment based on sexual orientation, this Court is not inclined to find a distinction.

29 C.F.R. Section 1604.11 defines harassment to include “verbal or physical conduct of a sexual nature. . . .” The United States Supreme Court has stated that EEOC “Guidelines provide that such sexual misconduct constitutes prohibited ‘sexual harassment,’ whether or not it is directly linked to the grant or denial of an economic quid pro quo, where ‘such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment.” (Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. 57, 65.)

Plaintiff’s Complaint alleges that the following conduct constituted sexual harassment regarding his supervisor Bree Andrews:

· Andrews discussed her sexual experiences in the workplace;

· Andrews showed Plaintiff pornographic content of a man she was dating;

· Andrews discussed sexual rituals she attempted, such as burning pubic hair, having a threesome, how displeasing it was to look at Autumn Calabrese’s genitals on camera, her ex-boyfriend’s penis being small and having a curve, boasting about her current sexual relations, sustaining an injury during sex and even had sex in a bathroom with a partner during a social outing with the team and coworkers and informing them all of this immediately after;

· Andrews would often direct cameramen to zoom in on male cast members’ private parts to embarrass Plaintiff;

· Andrews would constantly ask Plaintiff in public settings whether he thought certain men were “hot”;

· Andrews would pressure Plaintiff to figure out the sexuality of employees;

· Andrews would make anti-queer comments and posted homophobic signage around Plaintiff’s workspace:

· Andrews discussed her husband’s cross-dressing and made comments about her son’s bi-curious sexuality; and

· Andrews asked Plaintiff about the genitalia of a transgender friend of his.

(See Compl. ¶¶ 9, 10.)

The Court finds that the above conduct is sexual in nature, the conduct was unwelcome, and is alleged to be sufficiently severe or pervasive as to alter the conditions of employment and create an intimidating, hostile, or offensive working environment. (See 29 C.F.R. § 1604.11)

Therefore, the Court finds that Plaintiff has stated a cause of action for sexual harassment and that the Act applies.

The Act Voids An Arbitration Agreement Not Just Sexual Harassment Claims

The Act is broad enough as to apply to the entire arbitration agreement, not just the sexual harassment claims, as Plaintiff’s claims relates to sexual harassment.

“(a) In general.--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.

(b) Determination of applicability.--An issue as to whether this chapter applies with respect to a dispute shall be determined under Federal law. The applicability of this chapter to an agreement to arbitrate and the validity and enforceability of an agreement to which this chapter applies shall be determined by a court, rather than an arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement, and irrespective of whether the agreement purports to delegate such determinations to an arbitrator.”

(9 U.S.C.A. § 402 [bold original].)

Here, Plaintiff’s causes of action for (1) Sexual Orientation and/or Racial Harassment;

(2) Retaliation in violation of Govt. Code § 12900 et seq.; (3) Failure to Prevent Harassment and Retaliation; (4) Retaliation in Violation of Lab. Code § 1101.5; (5) Wrongful Termination in Violation of Public Policy, and (6) Intentional Infliction of Emotional Distress all relate to Plaintiff’s sexual harassment dispute and the Act bars compelling these claims to arbitration. Defendant fails to persuasively argue otherwise.

In interpreting the Act, the Court in Murrey v. Superior Court of Orange County would agree, finding that:

“Section 402, subdivision (a), of the Act describes its applicability, stating that effective immediately, predispute arbitration agreements and joint-action waivers in the context of sexual assault or harassment were no longer valid or enforceable.” (Murrey v. Superior Court of Orange County (2023) 87 Cal.App.5th 1223.) “Section 402, subdivision (a), unambiguously provided the Act applied ‘with respect to a case filed under ... State law and relates to the ... sexual harassment dispute.’” (Id. [italics original].)

It is also undisputed that this case was filed on August 03, 2022, after the Act went into effect on March 03, 2022. (Pub. L. 117-90).

Accordingly, Plaintiff argues that because he filed his case after the enactment of the Act, the Act bars arbitration of his claims regardless of when the underlying sexual harassment took place. Although the Murrey Court did not precisely determine this issue, it did note “the Act is only applicable to cases filed after its enactment.” (Murrey, supra, Cal.App.5th at 1223.) Here, Defendant waived any argument that the Act does not apply to Plaintiff’s claims which occurred before March 03, 2022 by not raising the issue in its supplemental brief. The Court is persuaded that a case “filed” after the Act was enacted could contain allegations of conduct which occurred before the Act was enacted. But the statute and the regulations do not purport to exclude any such claims, and the Court will not read into the statutory scheme any such limitation.

For the reasons stated, the Court finds that because Plaintiff pleads a claim for sexual harassment and Plaintiff’s Complaint relates to a sexual harassment dispute under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, Defendant’s Motion to Compel Arbitration must be DENIED.

Conclusion

Defendant’s Motion to Compel Arbitration is DENIED.

Moving party to give notice.