GUEVARA VS OS4LABOR et al.

Interrogatories – Employment, Set No. 1, and d) Request for Production of Documents, Set No.

1. OS4 did not oppose these motions. Plaintiff is requesting sanctions in the amount of $1,000

for each motion.

The other discovery motions were brought by Automann against the Plaintiff. Automann seeks to

compel the Plaintiff to provide further responses to a) Special Interrogatories, Set No. 1, b)

Request for Production of Documents, Set No. 1, c) Form Interrogatories, Set No. 1 and d)

Request for Admissions, Set No.

1. Automann seeks monetary sanctions against the Plaintiff in

the amount of $1,679.79 for each motion. Plaintiff opposes and Automann replies. Procedurally,

these motions failed to conform with CRC Rule 3.1345(a) – separate statement requirement.

Defendants’ motions to compel arbitration, along with Plaintiff’s motions to compel against OS4

and Automann’s motions to compel against Plaintiff, have been fully briefed. Having reviewed all

the submitted papers from the parties, the Court rules as follows:

Arbitration

a. Judicial Notice.

i. Plaintiff’s Request for Judicial Notice - Denied.

Along with her motion, Plaintiff filed two identical Requests for Judicial Notice, pursuant

to Evidence Code sections 452 and 453. Plaintiff seeks judicial notice of exhibits 2, 4-8, which

are unpublished court orders and opinions. Under Evidence Code section 452, subdivisions (d),

judicial notice may be taken of “[r]ecords of (1) any court of this state or (2) any court of record of

the United States or of any state of the United States.” (Evid. Code, § 452, subd. (d).) The

California Supreme Court, however, has held that requesting judicial notice of an unpublished

opinion of a California court is tantamount to “circumvent[ing] the rule” that unpublished

California court opinions are not to be cited or relied upon by the Court or a party. (People v.

Webster (1991) 54 Cal.3d 411, 428 n.4 [citing former appellate rule CRC 977(a), (b), now

codified as CRC 8.1115].) As such, Plaintiff’s request as to Exhibits 2, 4-8 are be denied.

Plaintiff’s request for judicial notice of exhibit 3 is also denied. Exhibit 3 is a copy of

government code, but judicial notice of published materials is unnecessary – as a citation to

such materials is sufficient. (See, e.g., Wittenburg v. Beachwalk Homeowners Assn. (2013) 217

Cal.App.4th 654, 665, fn. 4.)

ii. Automann’s Request for Judicial Notice – Granted in Part as to Exhibit D

only.

Automann requests judicial notice of the legislative history of the EFAA (Exhibits A-C).

Requesting judicial notice of legislative history “is disfavored.” (Grassi v. Superior Court (2021)

73 Cal.App.5th 283, 290; see also Wittenburg v. Beachwalk Homeowners Assn., supra, 217

Cal.App.4th at 665, fn. 4, stating that “[a] motion for judicial notice of published legislative history,

such as the Senate analysis here, is unnecessary.”)

Exhibit D is a fact sheet published by California’s Department of Civil Rights. The link included in

Automann’s request leads to the document, published by the Department. As such, it is eligible

for judicial notice under subdivision (h), which allows judicial notice of “[f]acts and propositions

that are not reasonably subject to dispute and are capable of immediate and accurate

determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452,

subd. (h).)

a. Defendants’ Motions to Compel Arbitration - GRANTED

Plaintiff does not dispute the existence or validity of the arbitration agreement but contends the

agreement is unenforceable under the Ending Forced Arbitration of Sexual Assault and Sexual

Harassment Act ("EFAA"), 9 U.S.C. §§ 401-402. The parties seemingly agree that the FAA

applies and it includes claims against Automann, even if it is not a signatory to the Agreement.

The EFAA provides that, at the election of the person alleging the conduct, a pre-dispute

arbitration agreement is unenforceable with respect to a case relating to a "sexual harassment

dispute." (9 U.S.C. §§ 401-402.) Whether a case qualifies as a sexual harassment dispute is a

question for the Court. (9 U.S.C. § 402(b).) In making that determination, the Court looks beyond

the labels attached to the causes of action and examines whether the factual allegations, if true,

constitute a sexual harassment dispute within the meaning of the statute.

Here, plaintiff alleges that after informing her supervisor she was pregnant and required time off

for medical appointments, the supervisor would express disapproval by responding, "Really?" or

"Again?" Plaintiff further alleges the supervisor repeatedly asked when plaintiff intended to begin

pregnancy leave and continued to question plaintiff regarding her pregnancy throughout her

employment. Plaintiff also alleges she was reassigned and ultimately terminated because of her

pregnancy.

Accepting these allegations as true for purposes of this motion, they do not sufficiently allege a

sexual harassment dispute within the meaning of the EFAA.

Under California law, discrimination and harassment are distinct concepts. In Janken v. GM

Hughes Electronics (1996) 46 Cal.App.4th 55, the Court of Appeal explained that personnel

management decisions—including work assignments, discipline, evaluations, promotions, and

termination—generally constitute discrimination rather than harassment because they are

actions undertaken in the exercise of supervisory authority. (Id. at pp. 63-65.) While such actions

may be discriminatory if motivated by a protected characteristic, they do not, standing alone,

constitute actionable harassment.

The California Supreme Court refined this distinction in Roby v. McKesson Corp. (2009) 47

Cal.4th 686, recognizing that official employment actions may be considered as part of a hostile

work environment claim when they are accompanied by other conduct conveying hostility toward

the employee because of a protected characteristic. (Id. at pp. 706-709.) Nevertheless, Roby

reaffirmed that harassment generally consists of bias expressed through interpersonal workplace

interactions, whereas discrimination concerns bias manifested through official employment

actions.

Applying those principles here, the Complaint principally alleges adverse employment actions—

plaintiff's reassignment and termination—which are classic discrimination claims. The remaining

allegations consist of the supervisor's expressions of frustration regarding plaintiff's pregnancy-

related medical appointments and repeated inquiries concerning when plaintiff intended to begin

pregnancy leave. Although these allegations may be relevant to plaintiff's discrimination claims

as evidence of discriminatory animus, they do not describe the type of severe or pervasive

interpersonal hostility, ridicule, intimidation, humiliation, or other harassing conduct that

transforms a discrimination claim into a harassment claim under California law.

The Court recognizes that harassment need not be sexual in nature to qualify as a sexual

harassment dispute under the EFAA and that pregnancy-based harassment may constitute

harassment because of sex under appropriate circumstances. However, the factual allegations

pleaded here describe isolated comments concerning plaintiff's attendance and anticipated

leave, together with subsequent personnel decisions. Even viewing the allegations in the light

most favorable to the Plaintiff, the Complaint alleges conduct that is more accurately

characterized as pregnancy discrimination than pregnancy-based harassment.

The Court therefore concludes that plaintiff has not alleged facts sufficient to establish that this

action is a "sexual harassment dispute" within the meaning of 9 U.S.C. §§ 401-402. Accordingly,

the EFAA does not render the parties' arbitration agreement unenforceable.

Having concluded that the Plaintiff has not sufficiently plead a cognizable harassment claim to

show the EFAA applies, the Court also considered Plaintiff’s other arguments below.

b. Waiver of Right to Arbitrate.

Plaintiff argues Defendants waived their right to arbitrate because they waited over a year from

answering to file the current motions to compel arbitration, and engaged in discovery.

“‘In determining waiver, a court can consider “(1) whether the party’s actions are inconsistent

with the right to arbitrate; (2) whether ‘the litigation machinery has been substantially invoked’

and the parties ‘were well into preparation of a lawsuit’ before the party notified the opposing

party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close

to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant

seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) ‘whether

important intervening steps [e.g., taking advantage of judicial discovery procedures not available

in arbitration] had taken place’; and (6) whether the delay ‘affected, misled, or prejudiced’ the

opposing party.”’ [Citation.]” (St. Agnes Medical Center v. PacifiCare of California (2003) 31

Cal.4th 1187, 1196.) “No one of these factors predominates and each case must be examined in

context.” (Lewis v. Fletcher Jones Motor Cars, Inc. (2012) 205 Cal.App.4th 436, 444.)

Here, although Defendants did wait over a year to file the current motions, and did engage in

discovery motion practice, both factors are explained. Automann states that it could not procure

the Agreement, and waited until it had the Agreement before filing the current motion. Indeed,

“[a] plain reading of the [arbitration statutes] indicates that as a preliminary matter the court is

only required to make a finding of the agreement’s existence, not an evidentiary determination of

its validity.” (Condee v. Longwood Management Corp. (2001) 88 Cal.App.4th 215, 218-219

(relying on former California Rules of Court, rule 371 (now rule 3.1330) in holding no

authentication is required).) Defendants “may meet their initial burden to show an agreement to

arbitrate by attaching a copy of the arbitration agreement purportedly bearing the opposing

party’s signature...in compliance with the requirements of section 1281.2 and California Rules of

Court, rule 3.1330.” (Espejo v. Southern California Permanente Medical Group (2016) 246

Cal.App.4th 1047, 1060.)

There is also ample evidence that Automann only engaged in discovery motion practice to obtain

the Agreement. Its motions to compel against OS4 as well as its pending motions against

Plaintiff relate to the Agreement, though some inquiries against Plaintiff also relate to damages.

Further, counsel for OS4 seemingly admits that its prior counsel ignored the case (T. Brown

Decl. ¶2), and such is the reason Automann could not procure the Agreement from it. Further,

“[t]he fact that plaintiff expended money and resources in the trial court does not establish

prejudice.” (Cox v. Bonni (2018) 30 Cal.App.5th 287, 304.)

As such, the Court concludes that the Defendants have not waived their right to arbitration.

c. Unconscionability.

Plaintiff argues that if the EFAA does not apply, the arbitration agreement is procedurally and

substantively unconscionable.

Unconscionability is generally recognized as the absence of meaningful choice on the part of

one of the parties together with contract terms which are unreasonably favorable to the other

party. (Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1376.) It requires a showing of

both procedural and substantive unconscionability, with the former focusing on oppression or

surprise due to unequal bargaining power, and the latter on overly harsh or one-sided results.

(Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114,

abrogated on other grounds by AT&T Mobility LLC, supra, 563 U.S. 333; see also 24 Hour

Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1214.) “The ultimate issue in every

case is whether the terms of the contract are sufficiently unfair, in view of all relevant

circumstances, that a court should withhold enforcement.” (Sanchez v. Valencia Holding Co.,

LLC (2015) 61 Cal.4th 899, 911–912.) “Unconscionability is ultimately a question of law.”

(Malone v. Superior Court (2014) 226 Cal.App.4th 1551, 1562.)

i. Procedural Unconscionability.

Procedural unconscionability focuses on oppression or surprise due to unequal bargaining

power. (Sanchez, supra, 61 Cal.4th at 910.) Surprise is a function of the disappointed

reasonable expectations of the weaker party. (Armendariz, supra, 24 Cal.4th at 113.)

“[T]here are degrees of procedural unconscionability. At one end of the spectrum are contracts

that have been freely negotiated by roughly equal parties, in which there is no procedural

unconscionability.... Contracts of adhesion that involve surprise or other sharp practices lie on

the other end of the spectrum. [Citation.] Ordinary contracts of adhesion, although they are

indispensable facts of modern life that are generally enforced [citation], contain a degree of

procedural unconscionability even without any notable surprises, and ‘bear within them the clear

danger of oppression and overreaching.' [Citations.] “Both procedural and substantive

unconscionability must be present for the court to refuse to enforce a contract under the doctrine

of unconscionability although “they need not be present in the same degree.” (Baltazar v.

Forever 21, Inc. (2016) 62 Cal.4th 1237, 1243.) Essentially, the court applies a sliding scale to

the determination: “[T]he more substantively oppressive the contract term, the less evidence of

procedural unconscionability is required to come to the conclusion that the term is

unenforceable, and vice versa.” (Pinnacle Museum Tower Assn., supra, 55 Cal.4th at 247.)

Plaintiff attests that she was required to sign documents as an immediate condition of

employment, that she and was given very little time to review and sign the documents, and that

she would not have signed the document had she known what she was signing. (Opp. at 10.)

These arguments support a finding that the Agreement was presented on a take-it-or-leave-it

basis, making it a contract of adhesion. A contract of adhesion will support minimal procedural

unconscionability. (Baltazar v. Forever 21, Inc., supra, 62 Cal.4th 1237, 1244; Sanchez v.

Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 915; Serpa v. California Surety Investigations,

Inc. (2013) 215 Cal.App.4th 695, 704; Parada v. Superior Court (Monex Deposit Company)

(2009) 176 Cal.App.4th 1554, 1570-73.)

As such, the Court finds the arbitration agreement is procedurally unconscionable.

ii. Substantive Unconscionability.

Substantive unconscionability focuses on the terms of the agreement and the presence of overly

harsh or one-sided results such that it shocks the conscience. (Suh v. Superior Court, supra,

181 Cal.App.4th 1504, 1515; Martinez v. Master Protection Corp., supra, 118 Cal.App.4th 107,

113.) There must be both procedural and substantive unconscionability in order for a court to

find a contract containing an arbitration provision to be unenforceable.

Substantive unconscionability focuses on the terms of the agreement and the presence of overly

harsh or one-sided results such that it shocks the conscience. (Suh v. Superior Court, supra,

181 Cal.App.4th 1504, 1515; Martinez v. Master Protection Corp., supra, 118 Cal.App.4th 107,

113.) Plaintiff argues that the arbitration contract is substantively unconscionable because the

alleged agreement is indefinite, too broad, and lacks mutuality. Although the language of the

Agreement states it stays in effect after termination, such a clause is not definitively

unconscionable because if one had a claim based on one’s termination, and the Agreement did

not extend past point, such a claim would not be covered – and those are routinely covered in

arbitration agreements. Plaintiff cites to Cook v. University of Southern California (2024) 102

Cal.App.5th 312, but there the arbitration agreement specifically stated “that it ‘shall survive the

termination of Employee's employment, and may only be revoked or modified in a written

document that expressly refers to the ‘Agreement to Arbitrate Claims’ and is signed by the

President of the University.’” (Id. at 325.) No such language exists here.

Further, Plaintiff relies on Cook to argue the Agreement lacks mutuality. But in Cook, defendant

USC had a “one-sided,” clause which allowed USC to compel arbitration when it involved third-

parties, but made a plaintiff seeking to “enforce the arbitration agreement against USC’s agents

or employees as third party beneficiaries, ... to show they actually accepted a benefit under the

agreement.” (Id. at 328.)

As such, given “[t]he burden of proving unconscionability rests upon the party asserting it.”

(OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 126), the Court finds the Agreement is not

substantially unconscionable. As stated by the California Supreme Court, “the central idea that

the unconscionability doctrine is concerned not with ‘a simple old-fashioned bad bargain’

[Citation], but with terms that are ‘unreasonably favorable to the more powerful party’. (Baltazar

v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1244.) Plaintiff has simply failed to show that here.

Discovery Motions – MOOT/Requests for Sanctions - DENIED

RULING

Based on the foregoing analysis, the Court:

1) Denies Plaintiff’s requests for judicial notice;

2) Grants judicial notice only to Automann’s Exhibit D, denying judicial notice as to the

rest;

3) Grants Defendants’ Motion to Compel Arbitration and Orders the current proceedings

stayed;

4) Deems moot all the pending discovery motions; and,

5) Denies all requests for monetary sanctions associated with the discovery motions.