Cardenas v. F.D. Thomas, Inc.

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 FRANCISCO MIGUEL PENA No. 2:24-cv-01814-DAD-JDP CARDENAS, et al., [12] Plaintiffs, 13 ORDER DENYING DEFENDANT’S v. MOTION TO COMPEL ARBITRATION [14] F.D. THOMAS, INC., (Doc. No. 4) [15] Defendant. [17] 18 This matter is before the court on defendant’s motion to compel arbitration. (Doc. No. 4.) 19 On August 2, 2024, the court vacated the hearing on the pending motion. (Doc. No. 10.) Having 20 reviewed the parties’ briefing, the court finds defendant’s motion suitable for a decision on the 21 papers. Local Rule 230(g). For the reasons set forth below, defendant’s motion will be denied. 22 BACKGROUND 23 On May 9, 2024, plaintiffs Francisco Miguel Pena Cardenas, Fernando Verdusco, and 24 Jesus Acevedo Jr. filed this action in the Sacramento County Superior Court against defendant 25 F.D. Thomas, Inc. and unnamed Doe defendants 1 to 50. (Doc. No. 1-2 at 8.) In their complaint, 26 plaintiffs bring state law claims for sexual harassment in violation of California’s Fair 27 Employment and Housing Act (“FEHA”), California Government Code §§ 12940(j)(l), (k), 28 12965, et seq.; retaliation in violation of FEHA, id. § 12940(h); failure to prevent harassment and 1 retaliation in violation of FEHA, id. §§ 12940(i), (k), 12965, et seq.; constructive termination of 2 plaintiffs Pena Cardenas and Acevedo; wrongful termination of plaintiff Verdusco; retaliation in 3 violation of California Labor Code § 1102.5; and negligent retention and supervision. (Doc. No. 4 1-2 at ¶¶ 36–88.) On June 27, 2024, defendant removed this action to this federal court pursuant 5 to diversity jurisdiction. (Doc. No. 1 at 3–6.) In their complaint, plaintiffs allege as follows. 6 Plaintiff Pena Cardenas was employed by defendant from approximately April of 2020 7 until approximately May 11, 2022. (Doc. No. 1-2 at ¶ 13.) Throughout plaintiff Pena Cardenas’s 8 employment, Jose Luis Cueller, a foreman for defendant, “made sexually harassing comments to” 9 him. (Id. at ¶ 16.) On one occasion, the foreman said to plaintiff Pena Cardenas “you want to 10 fuck,” “I was serious, the bathrooms are right there,” and, when the foreman’s advances were 11 rejected, “I’m the foreman you must respect me.” (Id. at ¶ 14.) In another incident, plaintiff Pena 12 Cardenas “was welding while on his knees when” the foreman “began to aggressively grope 13 Cardenas while humping him and making vile and crude sexual comments.” (Id. at ¶ 15.) When 14 plaintiff Pena Cardenas verbalized he was hurt, the foreman responded “I don’t give a fuck about 15 you, you son of a bitch . . . give me your dick.” (Id.) In his “attempt to flee, his finger was 16 burned.” (Id.) The foreman also took a video of plaintiff Pena Cardenas without his consent, 17 “posting the video to TikTok captioned ‘this guy has a large butt, and this guy doesn’t have a 18 butt.’” (Id. at ¶ 16.) Similar inappropriate and harassing comments continued “at least 3-4 times 19 per week with multiple incidents of” the foreman “pinning and holding Cardenas down while 20 humping him.” (Id. at ¶ 17.) 21 Plaintiff Verdusco was employed by defendant from approximately April of 2016 through 22 approximately June 17, 2022. (Id. at ¶ 19.) Juan Deras, a superintendent for defendant, “would 23 make sexually harassing comments and physically grope Verdusco’s buttocks and groin from 24 behind on average every other shift they worked together.” (Id. at ¶ 20.) “Despite Verdusco 25 repeatedly asking him to stop and pulling away,” the superintendent “continued to sexually harass 26 Verdusco throughout Verdusco’s employment.” (Id.) On or around June 13, 2022, plaintiff 27 Verdusco reported this sexual harassment to defendant’s HR department, Vice President, and 28 ///// 1 union representative. (Id. at ¶ 23.) On or around June 17, 2022, defendant terminated plaintiff 2 Verdusco. (Id. at ¶ 26.) 3 Plaintiff Acevedo was employed by defendant from approximately August of 2018 until 4 approximately May of 2022. (Id. at ¶ 27.) Beginning in or around February of 2022, Cuellar, a 5 foreman for defendant, “would sexually harass Acevedo every time he was assigned to work with 6 him touching him inappropriately and even on two occasions groping Acevedo’s genitals.” (Id. at 7 ¶ 29.) “Despite Acevedo’s constant attempts to prevent” the foreman’s “physical advances,” the 8 foreman “continued this behavior until Acevedo’s” employment with defendant ended. (Id.) 9 Plaintiff Acevedo “witnessed acts of sexual harassment multiple times per week including his co10 workers being grabbed, kicked, and humped by” the superintendent for defendant. (Id. at ¶ 30.) 11 He also “constantly experienced unwanted inappropriate sexual jokes by” the superintendent 12 “during work.” (Id.) Plaintiff Acevedo reported the sexual harassment suffered to superintendent 13 Deras on or around February of 2022 and again in April of 2022. (Id. at ¶ 32.) The 14 superintendent said too much time had elapsed. (Id.) 15 On July 5, 2024, defendant filed the pending motion to compel arbitration, contending that 16 as part of each plaintiff’s initial hiring process, plaintiffs executed an arbitration agreement with 17 defendant, in which plaintiffs agreed to arbitrate all claims related to plaintiffs’ employment with 18 defendant. (Doc. No. 4 at 10.) Based on this agreement, defendant argues that plaintiffs’ claims 19 asserted against it are subject to arbitration. (Id. at 30.) On July 29, 2024, the court issued an 20 order to show cause why plaintiffs did not file a timely opposition in compliance with this court’s 21 Local Rules. (Doc. No. 6.) On the same day, plaintiffs filed a response to the order to show 22 cause, (Doc. No. 8), as well as their opposition to defendant’s motion, in which they contend that 23 the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“EFAA”), [24] 9 U.S.C. §§ 401 , et seq., applies to bar forced arbitration of plaintiffs’ claims brought in this 25 action, (Doc. No. 7 at 2). On July 30, 2024, the court discharged the order to show cause and set 26 the deadline for the filing of defendant’s reply as August 8, 2024. (Doc. No. 9.) On August 8, 27 2024, defendant filed its reply. (Doc. No. 10.) 28 ///// 1 LEGAL STANDARD 2 A written provision in any contract evidencing a transaction involving commerce to settle 3 a dispute by arbitration is subject to the Federal Arbitration Act (“FAA”). 9 U.S.C. § 2 . There is 4 generally a “liberal federal policy favoring arbitration agreements.” Epic Sys. Corp. v. Lewis, 584 5 U.S. 497, 504 (2018). The FAA confers on the parties involved the right to obtain an order 6 directing that arbitration proceed in the manner provided for in a contract between them. 9 7 U.S.C. § 4 . In considering a motion to compel arbitration, the “court’s role under the [FAA] . . . 8 is limited to determining (1) whether a valid agreement to arbitrate exists and, if it does, (2) 9 whether the agreement encompasses the dispute at issue.” Chiron Corp. v. Ortho Diagnostic Sys., 10 Inc., 207 F.3d 1126, 1130 (9th Cir. 2000). The party seeking to compel arbitration bears the 11 burden of proving by a preponderance of the evidence the existence of an agreement to arbitrate. 12 Ashbey v. Archstone Prop. Mgmt., Inc., 785 F.3d 1320, 1323 (9th Cir. 2015); Knutson v. Sirius 13 XM Radio Inc., 771 F.3d 559, 565 (9th Cir. 2014) (citing Rosenthal v. Great W. Fin. Sec. Corp., [14] 14 Cal. 4th 394, 413 (1996)). “When deciding a motion to compel arbitration, a district court 15 must treat the facts as they would when ruling on a motion for summary judgment, construing all 16 facts and reasonable inferences that can be drawn from those facts in a light most favorable to the 17 non-moving party.” Turner v. Tesla, Inc., 686 F. Supp. 3d 917 , 922 (N.D. Cal. 2023) (internal 18 quotation marks and citation omitted); see also Hansen v. LMB Mortg. Servs., Inc., 1 F.4th 667 , 19 670 (9th Cir. 2021) (“The summary judgment standard is appropriate because the district court’s 20 order compelling arbitration is in effect a summary disposition of the issue of whether or not there 21 had been a meeting of the minds on the agreement to arbitrate.”) (internal quotation marks and 22 citation omitted). 23 DISCUSSION 24 In its pending motion, defendant argues that plaintiffs signed a valid and enforceable 25 arbitration agreement that purportedly covers and includes plaintiffs’ claims brought in this 26 action. (Doc. No. 4 at 9–22.) In opposition, plaintiffs argue that the arbitration agreement is 27 unenforceable pursuant to the EFAA. (Doc. No. 7 at 2–11.) After examining the EFAA’s 28 statutory framework, the court will consider whether at least one of plaintiffs’ claims alleges 1 conduct constituting a sexual harassment dispute, then whether plaintiffs’ entire case relates to a 2 sexual harassment dispute, and finally whether plaintiffs’ case falls within the temporal scope of 3 the EFAA. 4 A. The EFAA 5 A recent amendment to the FAA exempts from forced arbitration those cases that are 6 related to sexual assault or sexual harassment disputes. 9 U.S.C. § 402 (a). The EFAA modifies 7 the FAA as follows: 8 Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute 9 or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration 10 agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, 11 Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute. [13] Id. 14 Under the EFAA, a “‘sexual harassment dispute’ means a dispute relating to conduct that 15 is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.” 9 16 U.S.C. § 401 (4). “An issue as to whether” the EFAA “applies with respect to a dispute shall be 17 determined under Federal law.” 9 U.S.C.A. § 402 (b). Applicability of the EFAA “to an 18 agreement to arbitrate and the validity and enforceability of an agreement to which” the EFAA 19 “applies shall be determined by a court, rather than an arbitrator, irrespective of whether the party 20 resisting arbitration challenges the arbitration agreement specifically or in conjunction with other 21 terms of the contract containing such agreement, and irrespective of whether the agreement 22 purports to delegate such determinations to an arbitrator.” Id. The EFAA applies “with respect to 23 any dispute or claim that arises or accrues on or after the date of enactment,” 9 U.S.C. § 401 note. 24 B. Whether at Least One of Plaintiffs’ Claims Alleges Conduct Constituting a Sexual 25 Harassment Dispute 26 For the EFAA to apply, the plaintiff must “alleg[e] conduct constituting a sexual 27 harassment dispute.” 9 U.S.C. § 402 (a). A “‘sexual harassment dispute’ means a dispute relating 28 ///// 1 to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or 2 State law.” 9 U.S.C. § 401 (4). 3 Federal district courts in and outside the Ninth Circuit are split as to the appropriate 4 standard for determining “the allegations that are necessary to invoke the EFAA in the first place 5 and to determine whether the statute is applicable to the case.” Diaz-Roa v. Hermes L., P.C., No. 6 24-cv-02105-LJL, 2024 WL 4866450 , at *14 (S.D.N.Y. Nov. 21, 2024). Courts acknowledge 7 that “‘[t]he EFAA’s text does not definitively decide’ this interpretive question.” Id. (quoting 8 Yost v. Everyrealm, Inc., 657 F. Supp. 3d 563 , 585 (S.D.N.Y. 2023)). 9 Some “[c]ourts evaluate EFAA arguments using the pleading standards of Federal Rule of 10 Civil Procedure 12(b)(6).” Arouh v. GAN Limited, No. 23-cv-02001-FWS, 2024 WL 3469032 , at 11 *6 (C.D. Cal. Mar. 22, 2024); see also Yost, 657 F. Supp. 3d at 577. Other courts apply a more 12 liberal standard according to which a plaintiff need only “plead nonfrivolous claims relating to 13 sexual assault or to conduct alleged to constitute sexual harassment, with the sufficiency of those 14 claims to be reserved for proper merits adjudication.” Diaz-Roa, 2024 WL 4866450 , at *14; see 15 also Turner, 686 F. Supp. 3d at 926 (omitting reference to Rule 12(b)(6)). 16 The court is persuaded that this more liberal pleading standard is applicable to this 17 determination, and adopts the reasoning as set out by the district court in Diaz-Roa. 2024 WL 18 4866450, at *15 (“The Court arrives at this interpretation based on (1) the text of the statute; (2) 19 the statutory scheme; (3) Congress’ intent in enacting the EFAA; and (4) the availability of the 20 routine safeguards against abusive litigation tactics already provided by federal statute and by the 21 Federal Rules of Civil Procedure.”); see also id. at *15–*20; cf. Grancare, LLC v. Thrower by & 22 through Mills, 889 F.3d 543, 550 (9th Cir. 2018) (“If a defendant cannot withstand a Rule 23 12(b)(6) motion, the fraudulent inquiry does not end there.”). As such, a plaintiff need only 24 “plead nonfrivolous claims relating to . . . conduct alleged to constitute sexual harassment, with 25 the sufficiency of those claims to be reserved for proper merits adjudication.” Diaz-Roa, 2024 26 WL 4866450 , at *14. 27 Defendant appears to concede that at least three of plaintiffs’ claims allege conduct 28 constituting a sexual harassment dispute. (Doc. No. 4-1 at 29–30.) These claims include 1 plaintiffs’ first claim for sexual harassment hostile work environment in violation of FEHA, 2 plaintiffs’ second claim for retaliation in violation of FEHA, and plaintiffs’ third claim for failure 3 to prevent harassment in violation of FEHA. (Id.) 4 Nevertheless, the court will confirm that, at minimum, plaintiffs’ claim for sexual 5 harassment hostile work environment is non-frivolously pled such that it alleges conduct 6 constituting a sexual harassment dispute. 9 U.S.C. § 401 (4); 9 U.S.C. § 402 (a) (defining sexual 7 harassment dispute as “a dispute relating to conduct that is alleged to constitute sexual harassment 8 under applicable Federal, Tribal, or State law”) (emphasis added). 9 A claim for FEHA sexual harassment hostile work environment has five elements. The 10 first element requires that the “[p]laintiff belongs to a protected group[,]” for instance based on 11 sex. Jones v. Dep’t of Corr. & Rehab., 152 Cal. App. 4th 1367, 1377 (2007) (internal quotation 12 marks and citation omitted). Similarly, the third element requires that “the harassment 13 complained of was based on sex.” Id. Evidence of “sex-specific and derogatory terms” can 14 “make it clear that the harasser is motivated by general hostility to the presence of” a particular 15 sex “in the workplace[.]” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). 16 Here, plaintiffs have provided allegations of “sex-specific and derogatory terms” such as “I don’t 17 give a fuck about you, you son of a bitch . . . give me your dick.” Id.; (Doc. No. 1-2 at ¶ 15). 18 Therefore, plaintiffs’ allegations provide non-frivolous support for the first and third elements. 19 The second element of a claim for sexual harassment hostile work environment under 20 FEHA requires that the “plaintiff was subject to unwelcome sexual harassment[.]” Jones, 152 21 Cal. App. 4th at 1377. According to plaintiffs’ complaint, when the foreman asked plaintiff Pena 22 Cardenas “you want to fuck,” and “I was serious, the bathrooms are right there,” plaintiff Pena 23 Cardenas rejected his advances. (Doc. No. 1-2 at ¶ 14.) Plaintiff Pena Cardenas also allegedly 24 verbalized that he was hurt. (Id. at ¶ 15.) Plaintiff Verdusco alleges he repeatedly asked the 25 superintendent to stop and pulled away. (Id. at ¶ 20.) Plaintiff Acevedo alleges he made constant 26 attempts to prevent the foreman’s physical advances. (Id. at ¶ 29.) Therefore, plaintiffs’ 27 allegations provide non-frivolous support for the second element of their claim. 28 ///// 1 The fourth element requires that “the harassment complained of was sufficiently pervasive 2 so as to alter the conditions of employment and create an abusive working environment.” Jones, [3] 152 Cal. App. 4th at 1377 . “Whether an environment is hostile or abusive can be determined 4 only by looking at all the circumstances.” Id. at 1378 (internal citations omitted). “These may 5 include the frequency of the discriminatory conduct; its severity; whether it is physically 6 threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes 7 with an employee’s work performance.” Id. (internal citations omitted). However, even “[a] 8 single incident of harassing conduct is sufficient to create a triable issue regarding the existence 9 of a hostile work environment if the harassing conduct has unreasonably interfered with the 10 plaintiff’s work performance or created an intimidating, hostile, or offensive working 11 environment.” Cal. Gov’t Code § 12923(b). Here, plaintiffs allege the harassment occurred 12 frequently—3–4 times per week (plaintiff Pena Cardenas), on average every other shift (plaintiff 13 Verdusco), or constantly (plaintiff Acevedo). (Doc. No. 1-2 at ¶¶ 17, 20, 30.) Furthermore, the 14 alleged harassment went well beyond a mere offensive utterance to aggressive groping that 15 resulted in plaintiff Pena Cardenas burning his finger, physical groping of plaintiff Verdusco’s 16 buttocks and groin, and groping of plaintiff Acevedo’s genitals. (Id. at ¶¶ 15, 20, 29.) These 17 allegations also contribute to a finding that the claimed harassment was severe. Therefore, 18 plaintiffs’ allegations provide non-frivolous support for the fourth element of their claim. 19 The fifth element requires a finding of “respondeat superior.” Jones, 152 Cal. App. 4th at 20 1377. “FEHA makes the employer strictly liable for harassment by a supervisor.” State Dep’t of 21 Health Servs. v. Superior Ct., 31 Cal. 4th 1026, 1041 (2003). Because plaintiffs allege that they 22 suffered harassment from two supervisors, a foreman and a superintendent, plaintiffs’ allegations 23 provide non-frivolous support for the fifth element. 24 Therefore, the court concludes that plaintiffs plead a non-frivolous claim for FEHA sexual 25 harassment hostile work environment. As such, at least one of plaintiffs’ claims alleges conduct 26 constituting a sexual harassment dispute. 9 U.S.C. § 402 (a). 27 ///// 28 ///// 1 B. Whether Plaintiffs’ Entire Case Relates to a Sexual Harassment Dispute 2 Defendant next argues that when “‘a complaint contains both arbitrable and nonarbitrable 3 claims, the [Federal Arbitration Act] requires courts to compel arbitration of pendant arbitrable 4 claims[,]’” even where inefficiency would result. (Id. at 29) (quoting KPMG LLP v. Cocchi, 565 5 U.S. 18 , 22 (2011)). Therefore, defendant contends, plaintiffs should be compelled to arbitrate 6 their remaining, non-sexual harassment claims for “constructive termination, wrongful 7 termination, violation of Labor Code section 1102.5, and negligent retention and supervision.” 8 (Doc. No. 4-1 at 29–30.) 9 In their opposition, plaintiffs highlight the EFAA’s standard, which bars forced 10 application of an arbitration agreement to “‘a case’” that “‘relates to the . . . sexual harassment 11 dispute.’” (Doc. No. 7 at 3, 5) (quoting 9 U.S.C. § 402 (a)) (emphasis added). The EFAA in turn 12 defines a sexual harassment dispute as “a dispute relating to conduct that is alleged to constitute 13 sexual harassment under applicable law.” 9 U.S.C. § 401 (4) (emphasis added). Plaintiffs argue 14 that they satisfy the EFAA’s standard because each of their causes of action relates to the sexual 15 harassment they suffered. (Doc. No. 7 at 4.) Plaintiffs further argue that the EFAA renders an 16 arbitration clause unenforceable as to an entire case involving a sexual harassment claim even 17 where the case’s other claims do not relate to the alleged sexual harassment. (Id. at 7.) 18 The court finds plaintiffs’ argument on this point to be persuasive. Where “the core of 19 [the plaintiff’s] case alleges ‘conduct constituting a sexual harassment dispute’ as defined by the 20 EFAA[,] . . . the EFAA makes ‘the entire case unenforceable under the parties’ arbitration 21 agreement.” Turner, 686 F. Supp. 3d at 925 (citing Johnson v. Everyrealm, Inc., 657 F. Supp. 3d 22 535, 552–54, 557–60 (S.D.N.Y. 2023)). This is because “‘the text of § 402(a) makes clear that its 23 invalidation of an arbitration agreement extends to the entirety of the case relating to the sexual 24 harassment dispute, not merely the discrete claims in that case that themselves either allege such 25 harassment or relate to a sexual harassment dispute.’” Id. (quoting Johnson, 657 F. Supp. 3d at 26 559); see also 9 U.S.C. § 402 (a) (“[N]o predispute arbitration agreement . . . shall be valid or 27 enforceable with respect to a case which . . . relates to the sexual assault dispute or the sexual 28 harassment dispute.”) (emphasis added). 1 The claims defendant seeks to send to arbitration include constructive termination (of 2 plaintiffs Pena Cardenas and Acevedo allegedly caused by the sexual harassment suffered), 3 wrongful termination (after plaintiff Verdusco reported sexual harassment), retaliation in 4 violation of California Labor Code § 1102.5 (in response to plaintiffs’ complaints of sexual 5 harassment), and negligent retention and supervision (of the employees who allegedly engaged in 6 sexual harassment). (Doc. No. 1-2 at ¶¶ 62–88.) In sum, the core of plaintiffs’ case alleges 7 conduct constituting sexual harassment under California law such that the EFAA bars the entire 8 case from forced arbitration. Turner, 686 F. Supp. 3d at 926–27 (denying defendant’s motion to 9 compel arbitration and finding plaintiff’s entire case covered by the EFAA because the plaintiff’s 10 claims either arose from the alleged sexual harassment or substantially related to the sexual 11 harassment claims); see also Molchanoff v. SOLV Energy, LLC, No. 23-cv-00653-LL-DEB, 2024 12 WL 899384 , at *3 (S.D. Cal. Mar. 1, 2024) (denying the defendant’s motion to compel arbitration 13 and finding the plaintiff’s entire case covered by the EFAA where the plaintiff’s retaliation claim 14 was based on sexual harassment). 15 C. Whether Plaintiffs’ Case Falls Within the Temporal Scope of the EFAA 16 Defendant also argues that plaintiffs’ claims are not within the temporal scope of the 17 EFAA because the Act does not apply retroactively, (Doc. No. 4 at 23–24), and because 18 plaintiffs’ claims pre-date the EFAA’s enactment on March 3, 2022, (id. at 22–23). 19 The EFAA applies “with respect to any dispute or claim that arises or accrues on or after 20 the date of enactment,” March 3, 2022. 9 U.S.C. § 401 note. “When a covered ‘dispute’ or 21 ‘claim’ arises or accrues after March 3, 2022, . . . any arbitration agreement that would otherwise 22 govern that dispute or claim may be invalidated with respect to all claims in the case by the 23 person alleging the covered dispute or claim.” Clay v. FGO Logistics, Inc., No. 3:23-cv-0157524 MPS, 2024 WL 4335791 , at *12 (D. Conn. Sept. 27, 2024) (emphasis added); see also 25 Molchanoff, 2024 WL 899384 , at *5 (“[B]ecause Plaintiff’s 2022 retaliation claim alleges 26 conduct constituting a sexual harassment dispute—as defined by 9 U.S.C. 401(4)—, and because 27 the case as a whole relates to that dispute, the EFAA bars enforcement of the arbitration 28 agreement between Plaintiff and PeopleReady as to all claims in this case, and as to all 1 Defendants in this case.”); 9 U.S.C. § 402 (a) (“[N]o predispute arbitration agreement . . . shall be 2 valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and 3 relates to the . . . sexual harassment dispute.”) (emphasis added). As such, where at least one of 4 the plaintiff’s claims accrued on or after March 3, 2022, that same claim “alleges conduct 5 constituting a sexual harassment dispute,” and “the case as a whole relates to that dispute, the 6 EFAA bars enforcement of the arbitration agreement . . . as to all claims in [the] case.” 7 Molchanoff, 2024 WL 899384 , at *5. As discussed above, in support of their claim for sexual 8 harassment hostile work environment, plaintiffs allege conduct constituting a sexual harassment 9 dispute, and the case as a whole relates to that dispute. Therefore, the court turns to whether 10 plaintiffs’ claim for sexual harassment hostile work environment accrued on or after enactment of 11 the EFAA. 12 Courts “consider [the plaintiff’s] operative complaint to determine whether [the 13 plaintiff’s] claims accrued on or after” enactment of the EFAA. Olivieri v. Stifel, Nicolaus & Co., 14 Inc., 112 F.4th 74, 78 (2d Cir. 2024). “The term ‘accrue’ means the same thing under the EFAA 15 as it does in the statute-of-limitations context.” Id. As such, where the plaintiff brings a state 16 cause of action, the state’s rules regarding accrual apply, Orkin v. Taylor, 487 F.3d 734, 741 (9th 17 Cir. 2007), and “[t]he reference point for the accrual of [the plaintiff’s] claims varies based on the 18 cause of action,” Turner, 686 F. Supp. 3d at 924. 19 “[T]he EFAA applies to continuing violations that occur, at least in part, after the statute’s 20 effective date, even if some of the conduct constituting the continuing violation occurred earlier.” 21 Doe v. Second St. Corp., 105 Cal. App. 5th 552 , 572 (2024). “California’s continuing violations 22 doctrine aggregates a series of wrongs or injuries for purposes of the statute of limitations, 23 treating the limitations period as accruing for all of them upon commission or sufferance of the 24 last of them.” Myles v. United States, No. 20-cv-55910, 2022 WL 4011172 , at *2 (9th Cir. Sept. 25 2, 2022) (internal quotation marks and citation omitted).1 26 ///// [27] 1 Citation to unpublished Ninth Circuit opinions throughout this opinion is appropriate pursuant 28 to Ninth Circuit Rule 36-3(b). 1 “[H]ostile work environment claims typically are subject to the continuing violation 2 doctrine because unlike discrete acts, their very nature involves repeated conduct.” Doe, 105 Cal. 3 App. 5th at 568. Accordingly, a claim for FEHA sexual harassment hostile work environment 4 subject to the continuing violations doctrine does not accrue until “‘the last discriminatory act in 5 furtherance of the hostile work environment.’” Id. at 569 (quoting Olivieri, 112 F.4th at 88 ). 6 “In order to show a continuing violation,” a plaintiff claiming sexual harassment hostile 7 work environment under California law “must establish that the allegedly unlawful conduct 8 occurring outside the limitations period (1) was ‘sufficiently similar in kind’ to the alleged 9 conduct within the limitations period; (2) ‘occurred with reasonable frequency’; and (3) has ‘not 10 acquired a degree of permanence.’” Fahnestock v. Waggoner, 674 F. App’x 708, 710 (9th Cir. 11 2017) (quoting Richards v. CH2M Hill, Inc., 26 Cal. 4th 798, 823 (2001)); see also Birschtein v. 12 New United Motor Mfg., Inc., 92 Cal. App. 4th 994, 1003 (2001) (applying the same three-part 13 test to claims for sexual harassment hostile work environment and retaliation). Sexual 14 harassment has acquired a degree of permanence only when the “‘employer’s statements and 15 actions make clear to a reasonable employee that any further efforts at informal conciliation to 16 obtain reasonable accommodation or end harassment would be futile.’” Birschtein, 92 Cal. App. 17 4th at 1004 (quoting Richards, 26 Cal. 4th at 823 ); see also id. at 1005–06 (quoting Richards, 26 18 Cal. 4th at 817) (“‘[C]ourts . . . have tended toward a broader view of th[e] doctrine when the 19 cause of action involves ongoing harassment or ongoing failure to accommodate disability. Even 20 courts that have adopted the three-part Berry test have been inclined to find a continuing violation 21 under these circumstances, either concluding the employer’s actions had little ‘permanence’ or 22 else giving little weight to the permanence factor.’”). 23 As a preliminary matter, the court turns to whether plaintiffs’ complaint alleges that any 24 act in furtherance of the hostile work environment occurred on or after enactment of the EFAA. 25 Doe, 105 Cal. App. 5th at 569. Plaintiffs’ complaint does not provide specific dates for alleged 26 incidences of sexual harassment. However, each plaintiff alleges his employment with defendant 27 ended after March 3, 2022. (Doc. No. 1-2 at ¶ 25) (alleging plaintiff Verdusco was terminated by 28 defendant on or around June 17, 2022); (id. at ¶ 13) (alleging plaintiff Pena Cardenas’s 1 employment with defendant ended on approximately May 11, 2022); (id. at ¶ 27) (alleging 2 plaintiff Acevedo’s employment with defendant ended in approximately May of 2022). 3 Therefore, if plaintiffs plead that they suffered sexual harassment regularly until their 4 employment with defendant ended, then each plaintiff must have suffered sexual harassment, an 5 act in furtherance of the hostile work environment, after enactment of the EFAA. 6 As noted, plaintiff Pena Cardenas alleges a foreman made inappropriate and harassing 7 comments “at least 3-4 times per week with multiple incidents of” the foreman “pinning and 8 holding Cardenas down while humping him.” (Id. at ¶ 17.) Plaintiff Pena Cardenas further 9 alleges that he “typically worked under” this foreman’s “supervision” and he “would see [the 10 foreman] every shift he worked.” (Id. at ¶ 13.) He alleges the foreman’s sexually harassing 11 comments continued “[t]hroughout [plaintiff Pena Cardenas’] employment.” (Id. at ¶ 16.) 2 12 Plaintiff Verdusco alleges that he “typically worked with the superintendent” who, beginning in 13 2019, “would make sexually harassing comments and physically grope Verdusco’s buttocks and 14 groin from behind on average every other shift they worked together.” (Id. at ¶ 20.) Plaintiff 15 Verdusco alleges that the superintendent “continued to sexually harass Verdusco throughout 16 Verdusco’s employment.” (Id.) Plaintiff Acevedo alleges he “constantly experienced unwanted 17 inappropriate sexual jokes by” the superintendent “during work” and “witnessed acts of sexual 18 harassment multiple times per week including his co-workers being grabbed, kicked, and humped 19 by” the superintendent. (Id. at ¶ 30.) In sum, plaintiffs’ complaint includes specific allegations of 20 repeated sexual harassment that started before enactment of the EFAA and continued throughout 21 until each plaintiff’s employment with defendant ended. [22] 2 Defendant presents evidence that plaintiff Pena Cardenas was on parental leave on and after the 23 EFAA’s enactment and did not return to work following parental leave. (Doc. No. 4-3 at 2.) Meanwhile, plaintiff Pena Cardenas’s declaration states that the alleged harassment continued on 24 and after enactment of the EFAA. (Doc. No. 7-4 at 2.) Evidence outside plaintiffs’ complaint not subject to judicial notice is not relevant to the court’s inquiry. Olivieri, 112 F.4th at 78 (Courts [25] “consider [the plaintiff’s] operative complaint to determine whether [the plaintiff’s] claims accrued on or after” enactment of the EFAA.). Nevertheless, the court notes that not all the [26] alleged harassment necessarily occurred in person at a jobsite. (Doc. No. 1-2 at ¶ 16) (alleging 27 that plaintiff Pena Cardenas discovered a video of himself on TikTok that the foreman had taken and posted, and that the video was captioned “this guy has a large butt, and this guy doesn’t have 28 a butt”). 1 Defendant argues these allegations are too “temporally ambiguous” to substantiate 2 application of the EFAA. (Doc. No. 11 at 8.) However, defendant cites no authority for this 3 proposition, (Doc. Nos. 7, 11), nor has the court found any. On the contrary, the United States 4 District Court for the Northern District of California found that a plaintiff’s claim fell within the 5 temporal scope of the EFAA in even more ambiguous circumstances. See e.g., Turner, 686 F. 6 Supp. 3d at 924 (finding the plaintiff’s claim falls within the temporal scope of the EFAA where 7 “the complaint does not concede that the harassment . . . ceased at any point prior to [the 8 plaintiff’s] termination” and termination allegedly occurred after enactment of the EFAA). 9 Having established that plaintiffs’ allegations of sexual harassment continued after 10 enactment of the EFAA, the court turns to whether plaintiffs have alleged a continuing violation 11 under California’s three-part test. Defendant does not appear to argue the continuing violation 12 doctrine does not apply here, instead arguing only that the final instance of sexual harassment 13 occurred before enactment of the EFAA. (Doc. Nos. 4, 11.) Still, the court notes that the 14 elements of California’s continuing violation test do appear to be satisfied in this case. The first 15 element, that the harassment before and after enactment of the EFAA was “‘sufficiently similar in 16 kind[,]’” is satisfied because each plaintiff alleges he repeatedly suffered similar verbal and 17 physical sexual harassment; the second element, that the sexual harassment “‘occurred with 18 reasonable frequency[,]’” is satisfied because plaintiffs allege they suffered sexual harassment 3– 19 4 times per week, on average every other shift, or constantly; and the third element, that the 20 sexual harassment had “‘not acquired a degree of permanence[,]’” is satisfied because plaintiffs’ 21 complaint alleges no statements or actions from defendant that make clear that reconciliation was 22 futile. Birschtein, 92 Cal. App. 4th at 1004 (quoting Richards, 26 Cal. 4th at 823 ); (Doc. No. 1-2 23 at ¶¶ 13, 16–17, 20, 30). The court concludes that plaintiffs have alleged a continuing violation 24 such that their claim for sexual harassment hostile work environment accrued after enactment of 25 the EFAA. 26 Therefore, plaintiffs’ claim for FEHA sexual harassment hostile work environment is 27 temporally within the scope of the EFAA. Birschtein, 92 Cal. App. 4th at 1003 ; Turner, 686 F. 28 ///// 1 | Supp. 3d at 924. As such, the EFAA bars forced arbitration of plaintiffs’ entire “case.” 9 U.S.C. 2 | § 402¢a).? 3 CONCLUSION 4 For the reasons explained above, 5 1. Defendant’s motion to compel arbitration of plaintiffs’ claims (Doc. No. 4) is 6 DENIED; and 7 2. The Initial Scheduling Conference is hereby RESET for March 24, 2025 at 01:30 8 PM in Courtroom 4 (DAD) before District Judge Dale A. Drozd. The parties shall 9 file a joint scheduling report by no later than March 10, 2025. 10 IT IS SO ORDERED. pated: _February 5, 2025 Dal A. 2, □□□ 12 DALE A. DROZD 3 UNITED STATES DISTRICT JUDGE [26] 27 | > Because at least one of plaintiffs’ covered “claim[s] ... accrue[d]” on or after enactment of the EFAA, the court need not address whether a “dispute . . . [arose]” on or after enactment of the 28 | EFAA. U.S.C. § 401 note.