Nesjan vs. AirBnB, Inc.

The FAA states that written arbitration agreements “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (9 U.S.C. § 2.) The Supreme Court has described this provision as reflecting both a “liberal federal policy favoring arbitration,” and the “fundamental principle that arbitration is a matter of contract.” (AT & T Mobility LLC v. Concepcion (2011) 563 U.S. 333.) The FAA permits agreements to arbitrate to be invalidated by “generally applicable contract defenses, such as fraud, duress, or unconscionability.” (Id.) When deciding whether a valid arbitration agreement exists, courts generally apply “ordinary state-law principles that govern the formation of contracts.” (First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 944.)

The EFAA

Plaintiff first argues that the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (“EFAA”,

9 U.S.C. §§ 401, 402) precludes enforcement of the Agreement in this case.

The EFAA prevents the enforcement of employment arbitration agreements in disputes involving claims of sexual harassment or sexual assault. “The Act consists of two sections. Section 402(a), provides that at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, ‘no predispute arbitration agreement or predispute jointaction 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.’ Any issue as to whether the Act applies to a dispute is to be determined under federal law. (9 U.S.C. § 402, subd. (b).)” (Kader v.

Southern California Medical Center, Inc. (2024) 99 Cal.App.5th 214, 221 (Kader).) If the EFAA applies, issues of arbitrability “shall be determined under Federal law . . . [and] 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 determination to an arbitrator.” (9 U.S.C., § 402(b).)

“Section 401 of the Act defines several relevant terms: (1) a predispute arbitration agreement is ‘any agreement to arbitrate a dispute that had not yet arisen at the time of the making of the agreement;’ (2) a sexual assault dispute is ‘a dispute involving a nonconsensual sexual act or sexual contact,’ and (3) a sexual harassment dispute is ‘a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law.’ (9 U.S.C. § 401(1), (3), & (4).)” (Kader, 99 Cal.App.5th at 221-222.) The term “sexual contact” under the EFAA means “the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” (9 U.S.C. § 401; 18 U.S.C. § 2246.)

In response, Defendant appears to argue that “it is unlikely that the EFAA applies to arbitration agreements that are not authorized by the FAA and similarly do not apply outside the scope of employment law”. (Reply Br. at p. 3, lines 21-24.) The EFAA does not appear to state such an exception.

Defendant also appears to argue that the conduct alleged in this action does not amount to “sexual contact” to trigger the EFAA. Plaintiff, on the other hand, argues that this case relates to a dispute over a nonconsensual “sexual contact” under the EFAA. The allegations in the Complaint favor Plaintiff’s argument. The Complaint alleges the following: When he was 15 years old and on the high school golf team at a school-sanctioned team trip to Palm Springs, Plaintiff was naked in a bathroom stall when high school golf teammates broke through the stall door, restrained Plaintiff, and covered his naked body with baby oil as they recorded the assault on video. (Compl., ¶ 1.) Those teammates then posted the video to TikTok. (Ibid.)

The Complaint sufficiently alleges conduct that appears to fall under the EFAA. As such, Plaintiff has shown that the arbitration provision is “invalid” as applied to this case. Pursuant to the EFAA, at Plaintiff's election, the arbitration agreement shall not be “valid or enforceable with respect to [the] case.” (9 U.S.C. § 402(a).)

Arbitration Agreement Terms

Plaintiff also argues that Plaintiff’s claims are not covered by the arbitration provision.

The court agrees. Even if the EFAA does not apply, the arbitration provision here does not appear to cover the claims at issue in this action. The arbitration provision covers “any and all disputes, claims, or controversies arising out of or relating to this Agreement or its breach, termination, enforcement, non-renewal, interpretation or validity, including any dispute relating to Student's enrollment at School, departure from School, educational experience at School, and any disciplinary actions against Student or Responsible Party.” (Gonzalez Dec., Ehx. A.)

This lawsuit and the underlying incident do not appear to relate to the Enrollment Agreement or its breach, termination, enforcement, non-renewal, interpretation or validity. Further, this lawsuit and the underlying incident do not appear to relate to Plaintiff’s enrollment, departure, or educational experience at the school. Rather, the action relates to an assault that occurred by Plaintiff’s high school peers while off campus and during a golf team trip.

Defendant relies on Bigler v. Harker School (2013) 213 Cal.App.4th 727, 732, a case in which the appellate court held the arbitration provision covering “any dispute involving the School” included the student plaintiff’s claim of battery against a teacher, whose alleged conduct occurred within the course and scope of his role as a teacher in his classroom on a school day concerning an academic performance the student brought to the teacher's attention. The arbitration provision here and the conduct at issue sufficiently differentiate this case from Bigler.

Accordingly, the court DENIES Defendant’s motion to compel arbitration.

Plaintiff to give notice.

13 Hwang vs. Pie Demurrer (re Answer) Venture, LLC The court SUSTAINS Plaintiffs TONY JIN HWANG and MAL SUK KIM’s demurrer to the following affirmative defenses contained in Defendants’ Answer: Nos. 2-3, 5-13, 15-19. (Code Civ. Proc., § 430.20(a).) Five days leave to amend is GRANTED, except as to the 9th affirmative defense (re statute of limitations).

As to each of the affirmative defenses demurred to, Plaintiffs argue that “no facts are stated in connection with the purported defense.”

In a very belated response, Defendants state they “do not contest the demurrer” but request leave to file an amended answer. (Opp’n Br., filed 6/24/26.)

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