Kimberly Abelson-Truitt v. Untitled Entertainment LLC, et al.

FN 1 - This motion was sufficiently served on the Defendant's counsel via email. (Mot. at pp. 101-102/104; Memo of Costs at pp. 8-9.)

Any party may submit on the tentative ruling by contacting the courtroom via email at SMCDept509@lacourt.ca.gov by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

Untitled Entertainment LLC, et al. MOTION TO COMPEL ARBITRATION MOVING PARTY: Defendants Untitled Entertainment, LLC; The Initial Group Global, LLC; and Eric Taitz RESPONDING PARTY(S): Plaintiff Kimberly Abelson-Truitt STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: This is an employment action. Plaintiff Kimberly Abelson-Truitt (Plaintiff) began working for defendants Untitled Entertainment, LLC (Untitled) and The Initial Group Global, LLC (Intial) under Eric Taitz (Taitz, collectively Defendants).

Plaintiff alleges: (1) harassment (Cal. Gov. Code Sec. 12940(j)); (2) whistleblower retaliation in violation of Labor Code Sec. 1102.5; (3) retaliation in violation of Cal. Gov. Code Sec. 12940(h); (4) discrimination (Cal. Gov. Code Sec. 12940); (5) failure to take reasonable steps (Cal. Gov. Code Sec. 12940(k)); (6) constructive wrongful termination in violation of public policy; (7) declaratory relief. Defendants now move to compel Plaintiff to arbitrate this dispute. Plaintiff opposed.

TENTATIVE RULING: Defendants' Motion to Compel Arbitration is GRANTED. The action is stayed pending the results of the arbitration. A Status Review/OSC re: Dismissal is set for September 9, 2027, at 8:30 a.m. Moving Parties are ordered to give notice.

DISCUSSION: Motion to Compel Arbitration I. Legal Standard "[T]he petitioner bears the burden of proving the existence of a valid arbitration agreement by the preponderance of the evidence . . . ." (Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1284). "In determining whether an arbitration agreement applies to a specific dispute, the court may examine only the agreement itself and the complaint filed by the party refusing arbitration [citation]. The court should attempt to give effect to the parties' intentions, in light of the usual and ordinary meaning of the contractual language and the circumstances under which the agreement was made." (Weeks v.

Crow (1980) 113 Cal.App.3d 350, 353.) "Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration. The court should order them to arbitrate unless it is clear that the arbitration clause cannot be interpreted to cover the dispute." (California Correctional Peace Officers Ass'n v. State (2006) 142 Cal.App.4th 198, 205.) "[A] party opposing the petition bears the burden of proving by a preponderance of the evidence any fact necessary to its defense. [Citation.]

In these summary proceedings, the trial court sits as a trier of fact, weighing all the affidavits, declarations, and other documentary evidence, as well as oral testimony received at the court's discretion, to reach a final determination." (Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1284.) "If a court of competent jurisdiction, whether in this State or not, 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.

Pro. Sec.1281.4.)

II. Objections to Evidence All parties submit objections to evidence. This Court is unaware of any legal authority which requires a court to rule on evidentiary objections on a motion, except as to a motion for summary motion/adjudication (Code Civ. Pro. Sec. 437c, subd. (q)] or a special motion to strike (Code Civ. Pro. Sec. 425.16, subd. (b)(2)); see also, Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 947-949.) As such, this Court respectfully declines to rule on these objections. This Court is well aware of the rules of evidence, and to how much weight, if any, should be given to any of the proposed evidence.

III.

Analysis

California has a strong public policy in favor of arbitration as an expeditious and cost-effective way of resolving disputes. "Even so, parties can only be compelled to arbitrate when they have agreed to do so." (Avila v. S. California Specialty Care, Inc. (2018) 20 Cal. App. 5th 835, 843.) "The party seeking to compel arbitration bears the burden of proving the existence of a valid arbitration agreement." (Ibid.) An arbitration agreement is a contractual agreement. "General contract law principles include that '[t]he basic goal of contract interpretation is to give effect to the parties' mutual intent at the time of contracting. [Citations.] ... The words of a contract are to be understood in their ordinary and popular sense." [Citations.] (Garcia v. Expert Staffing W., 73 Cal. App. 5th 408, 412-13.)

A. The FAA Applies Defendants move to compel arbitration of this action. The FAA provides for enforcement of arbitration provisions in any contract "evidencing a transaction involving commerce." (9 USC Sec. 2.) The term "involving commerce" is functionally equivalent to "affecting commerce" and "signals an intent to exercise Congress' commerce power to the full." (Allied-Bruce Terminix Cos., Inc. v. Dobson (1995) 513 US 265, 277.) "The party asserting the FAA bears the burden to show it applies by presenting evidence establishing [that] the contract with the arbitration provision has a substantial relationship to interstate commerce . . . ." (Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 238.) It appears the parties agree that the FAA, including the EFAA, applies to this action. Therefore, the FAA applies.

B. Existence of An Arbitration Agreement a. Defendants' Initial Burden Defendants have the initial burden of producing "prima facie evidence of a written agreement to arbitrate the controversy." (Gamboa v. Ne. Cmty. Clinic (2021) 72 Cal. App. 5th 158, 165.) "[I]t is not necessary to follow the normal procedures of document authentication." (Condee v. Longwood Mgmt. Corp. (2001) 88 Cal. App. 4th 215, 218.) The Declaration of Ilyssa Coghlan, general counsel for Initial states: "As part of her employment at Boat Rocker Media, Abelson-Truitt signed an 'Arbitration Agreement and Intellection Property Agreement.'" (Coghlan Decl.

P.6.) In relevant part, the 2021 Arbitration Agreement (Agreement) provides that: BRM, its parents, subsidiaries, affiliates, successors or assigns (collectively, the "Company") and I agree that any and all controversies, claims, or disputes with anyone (including the Company and any employee, officer, director, shareholder, or benefit plan administrator of the Company in their capacity as such or otherwise) arising out of, relating to, or resulting from my employment with the Company or the termination of my employment with the Company, including any breach of this Agreement, shall be subject to binding arbitration. (Coghlan Decl., P.6, Ex. 1.)

Defendant demonstrates that Boat Rocker Media (BRM) was Plaintiff's initial employer. (Coghlan Decl. P.4.)

Plaintiff was later hired by Untitled, which was owned by BRM. (Coghlan Decl. P.8.) Initial then acquired Untitled. (Coghlan Decl. P.9; Compl. P.3.) Each entities appear to be covered as "parents, subsidiaries, affiliates, successors or assigns" of BRM and therefore, third-party beneficiaries to the Agreement. Defendants have therefore met their initial burden.

b. Plaintiff's Burden This switches the burden to Plaintiff, who "bears the burden of producing evidence to challenge the authenticity of the agreement." (Gamboa, supra, 72 Cal.App.5th at p. 165.) In opposition, Plaintiff does not challenge that she signed the Agreement. Instead, Plaintiff argues that Defendants were not parties to the Agreement and the 2023 Employment Agreement superseded the Agreement. First, while Defendants were not signatories to the Agreement, they are third party beneficiaries to the Agreement.

It is "not necessary that the beneficiary be named and identified as an individual. A third party may enforce a contract where he shows that he is a member of a class of persons for whose benefit it was made." (Garratt v. Baker (1936) 5 Cal.2d 745, 748.) "Generally, it is a question of fact whether a particular third person is an intended beneficiary of a contract." (Prouty v. Gores Technology Group (2004) 121 Cal.App.4th 1225, 1233.) "The test for determining whether a contract was made for the benefit of a third person is whether an intent to benefit a third person appears from the terms of the contract." (Johnson v.

Holmes Tuttle Lincoln-Mercury, Inc. (1958) 160 Cal.App.2d 290, 297.) Here, the Agreement was intended to benefit Defendants. Defendants are "subsidiaries, affiliates, successors or assigns" of BRM including an "employee, officer, director, shareholder." The Agreement was expressly entered into for their benefit.

Next, the 2023 Employment Agreement does not render the Agreement unenforceable because the 2023 Employment Agreement expressly incorporates the Agreement into its terms. The Employment Agreement states: This Agreement, together with the Arbitration Agreement and Intellectual Property Assignment Agreement, contains a complete statement of all the arrangements between the parties with respect to Employee's engagement by Company, supersedes all existing agreements or understandings, whether written or oral, between them and any or all prior or contemporaneous negotiations concerning Employee's engagement and cannot be amended except by a written instrument executed by the party to be charged. (Coghlan Decl., P.8, Ex. 3 at Sec.12.)

In opposition, Plaintiff focuses on Section 9 of the Employment Agreement which states that the "Employee shall concurrently execute the Arbitration Agreement and Intellectual Property Assignment Agreement and agrees to be bound by its terms." (Coghlan Decl., P.8, Ex. 3 at Sec.9.) However, any contractual requirement for the Plaintiff to concurrently execute a new arbitration agreement pursuant to section 9 appears to be relieved by the existence of the Agreement that was signed in 2021. Instead, it appears that the parties incorporated the already existing Agreement into the 2023 Employment Agreement.

Therefore, based on a preponderance of all evidence and the totality of the circumstances, this Court finds that Defendants have met their burden to "establish with admissible evidence a valid arbitration agreement between the parties." (Gamboa, supra, 72 Cal.App.5th at p. 165.) The Court now turns to Plaintiff's defenses to enforcement.

C. Defenses to Enforcement Plaintiff makes two arguments against enforcement. First, the Agreement is unenforceable pursuant to the EFAA and because the Agreement is unconscionable.

a. The EFAA In opposition, Plaintiff argues that arbitration is precluded by operation of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. (See 9 U.S.C. Sec.Sec.401 & 402; H.R. 4445.) It "represent[s] the first major amendment of the Federal Arbitration Act," and "voids predispute arbitration clauses in cases...involving sexual harassment allegations." (Murrey v. Superior Ct. (2023) 87 Cal.App.5th 1223, 1230.)

The Act 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 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. Sec.Sec.401(a).) Therefore, when considering if this action invokes the EFAA, this Court must determine if Plaintiff has "alleg[ed] conduct constituting a sexual harassment dispute." (9 U.S.C. 402(a).)

As relevant here, the Act defines "sexual harassment dispute" as "a dispute relating to conduct that is alleged to constitute sexual harassment under applicable Federal, Tribal, or State law." (9 U.S.C. Sec. 401(4).) It is critical to look to the allegations in Plaintiff's complaint. "'It is an elementary principle of modern pleading that the nature and character of a pleading is to be determined from its allegations, regardless of what it may be called, and that the subject matter of an action and issues involved are determined from the facts alleged rather than from the title of the pleadings....'" (Jaffe v.

Carroll (1973) 35 Cal.App.3d 53, 57, quoting from McDonald v. Filice (1967) 252 Cal.App.2d 613, 622; Ameron Internat. Corp. v. Insurance Co. of State of Pennsylvania (2010) 50 Cal.4th 1370, 1386 [in construing a complaint, courts must "emphasiz[e] substance over form"].)

Here, [Plaintiff] informed Defendant Eric Taitz, the CEO, and others in senior management that the crushing load was negatively impacting her health. Ms. Abelson Truitt had been operating under extreme pressure for nearly a year - working 10-15-hour days, six to seven days per week. She warned Defendant Taitz that she desperately needed more people, and that she would inevitably make mistakes without additional resources. The response? More work plus shorter deadlines including on weekends and during "vacations."

With no new help. In fact, Defendant Taitz often just laughed and mocked her pleas for help. He called her passive aggressive. He repeatedly berated her for an error she had made years earlier even though he was the one who reviewed her work. Defendant Taitz not only laughed at Plaintiff; he laughed at and ridiculed the women in her department and the stress levels they were coping with. Unlike Defendant Taitz, Ms. Abelson-Truitt did not have nannies or housekeepers or gardeners or a "wife" to help her cope with raising four teenaged daughters including one with special needs.

It was only after her breakdown, when Taitz validated the issues Plaintiff had been coping with by talking to the men, that he apologized to the men and took steps to alleviate the stress levels in the department. He never apologized to Plaintiff. (Compl. P.10.) In short, "Defendants refused to grant Plaintiff equity that they awarded to male employees, paid her less than similarly situated male employees, and treated her worse than men and others who did not share her protected characteristics, among other things." (Compl.

P.13.) In essence, Plaintiff alleges a double standard in the workplace, where she as a woman, was treated differently than other male employees. On these allegations, viewed in context with the EFAA, this Court concludes Plaintiff has not "alleg[ed] conduct constituting a sexual harassment dispute." (9 U.S.C. Sec. 402(a).) Instead, she has alleged discriminatory practices in the employer's routine personnel management based on sex. California law distinguishes between discrimination and harassment. [FN 1] And this distinction, though it might feel like splitting hairs at times, is an important one, especially considering the nature of the EFAA. "[D]iscrimination refers to bias in the exercise of official actions on behalf of the employer, [whereas] harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace." (Roby v.

McKesson Corp. (2009) 47 Cal.4th 686, 707.) In other words, "commonly necessary personnel management actions...may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment." (Ibid.) Harassment, on the other hand, "focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee." (Ibid.)

Were this Court to adopt Plaintiff's broad reading of the statute, nearly any claim for discrimination or harassment based on gender would be immune from arbitration. This Court suspects that if the legislature intended such a sweeping result, it would have clearly said so. (People v. McHenry (2000) 77 Cal.App.4th 730, 732 ["When interpreting a statute [the court's] primary task is to determine the Legislature's intent."]) Therefore, this matter is not barred from arbitration under the EFAA, and any doubts as to that conclusion must be resolved in favor of arbitration. (See California Corr.

Peace Officers Assn. v. State of California (2006) 142 Cal.App.4th 198, 205 ["Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration"].) [FN 2]

b. Unconscionability Plaintiff argues the Agreement should be disregarded based on principles of unconscionability. Unconscionability has "both a procedural and a substantive element, the former focusing on oppression or surprise due to unequal bargaining power, the latter on overly harsh or one-sided results. (Sanchez v. Valencia Holding Company, LLC (2015) 61 Cal.4th 899, 910.) Under California law, an arbitration agreement must be in some measure both procedurally and substantively unconscionable in order for the agreement to be unenforceable. (Armendariz v.

Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114 (Armendariz); De La Torre v. CashCall, Inc. (2018) 5 Cal.5th 966, 982.) "But they need not be present in the same degree. . . . [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." (Armendariz, supra, 24 Cal.4th at p. 114.)

1. Procedural Unconscionability First, Plaintiff argues the agreement is procedurally unconscionable because it was a contract of adhesion--it was offered on "take-it-or-leave it-basis" as a condition of employment and she had no ability to negotiate its terms. Plaintiff alleges that this contract of adhesion should invalidate the Agreement. "The term [contract of adhesion] signifies a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it." [Citation]. (Armendariz, supra, 24 Cal.4th at p. 113.)

Here, the Court agrees with Plaintiff that the dynamic here represents a classic contract of adhesion, but only to the degree that is typical in the employer-employee context. Therefore, the "take it or leave it" nature of the agreement is sufficient to establish "some degree of procedural unconscionability." (Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899, 915). This means the substantive terms of the agreement must be scrutinized to ensure they are not manifestly unfair or one-sided. (Ibid.)

2. Substantive Unconscionability Plaintiff also contends the Agreement is substantively unconscionable. "'Substantive unconscionability' focuses on the terms of the agreement and whether those terms are 'so one-sided as to 'shock the conscience.'" (Kinney v. United HealthCare Services, Inc. (1999) 70 Cal.App.4th 1322, 1330.) "[A]n arbitration agreement is lawful if it '(1) provides for neutral arbitrators, (2) provides for more than minimal discovery, (3) requires a written award, (4) provides for all of the types of relief that would otherwise be available in court, and (5) does not require employees to pay either unreasonable costs or any arbitrators' fees or expenses as a condition of access to the arbitration forum.

Thus, an employee who is made to use arbitration as a condition of employment 'effectively may vindicate [his or her] statutory cause of action in the arbitral forum.' [Citation.] " (Armendariz v. Foundation Health Psychcare Services, Inc., supra, 24 Cal.4th at p. 102.) Plaintiff argues that the Agreement is substantively unconscionable because it lacks mutuality on the covered claims and does not provide sufficient discovery.

i. Mutuality Plaintiff argues that the claims encompassed by the Agreement "are, overwhelmingly, the categories of claims employees bring against employers, not the reverse." (Opp. at p. 14:8-9.) Here, this "Agreement is intended to be as broad as possible and to apply to any claim, complaint, or dispute that relates in any way to my employment relationship with the Company, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory. I further understand that this Arbitration Agreement is mutual, which means that it also applies to any disputes the Company may have with me." (Coghlan Decl., P.6, Ex. 1.) "Claims not covered by this Arbitration Agreement are claims for workers' compensation, unemployment compensation benefits, administrative charges for unfair labor practices brought before the National Labor Relations Board, or any other claims that, as a matter of law, the Parties cannot agree to arbitrate." (Ibid.)

While the Agreement does enumerate the covered claims, the enumeration does not limit the scope of the Agreement. (See Ibid, ["Claims covered by the Arbitration Agreement include, but are not limited to..."]) The Agreement here, viewed in context and its totality, requires that each party arbitrate disputes against the other. While the agreement does exclude certain claims from its reach, the excluded areas do not necessarily favor the employer to such a degree as to make the agreement more than slightly procedurally unconscionable.

ii. Discovery Plaintiff argues that the applicable JAMS rules improperly limit discovery with much of the discovery depending on an arbitrator's discretion of granting¿additional¿discovery. Plaintiff notes the limitations placed by JAMS rules, especially pertaining to depositions, providing for one of each side and¿additional¿depositions to be¿determined¿by the arbitrator. However, Armendariz held that plaintiffs "are at least entitled to discovery sufficient to adequately arbitrate their statutory claim, including access to essential documents and witnesses, as determined by the arbitrator(s)." (Armendariz v.

Foundation Health Psychcare Services, Inc., supra, 24 Cal.4th at p. 106.) As in Armendariz, Plaintiff can seek additional depositions from the arbitrator. While the rule limits discovery initially, courts "assume that the arbitrator will operate in a reasonable manner in conformity with the law." (Dotson v. Amgen, Inc.¿(2010) 181 Cal.App.4th 975, 984 (Dotson).) Assuming the arbitrator will act reasonably, there is no reason for the Court to conclude the arbitrator will prohibit Plaintiff from deposing more than one witness.¿In Dotson, the court found minimal substantive unconscionability where "[a]dditional discovery may be had where the arbitrator selected pursuant to this agreement so orders, upon a showing of need." (Ibid; see also Roman v.

Superior Court (2009) 172 Cal.App.4th 1462, 1475 [finding discovery rules in an employment action which "delegates to the arbitrator the absolute discretion to deny depositions" not undue limitation on discovery.]) The Court finds the JAMS discovery rules to be materially similar to those in Dotson and Armendariz because JAMS allows further discovery, such as additional depositions, with an arbitrator's determination. Further, there are no additional limitations of discovery, or restraint of the arbitrator's authority within the Agreement itself.

Even if these rules limit discovery somewhat, they permit sufficient discovery to make the arbitration proceedings fair.¿(See¿Armendariz v. Foundation Health Psychcare Services, Inc., supra, 24 Cal.4th at p. 105¿[parties may "agree to something less than¿the full panoply of discovery provided."]) The agreement is¿not substantively unconscionable on this ground. Therefore, this leaves us with only a minimal finding of both procedural and substantive unconscionability. This is not enough under the sliding scale approach to invalidate the agreement as a whole.

Accordingly, Defendants' Motion to Compel Arbitration is GRANTED. IT IS SO ORDERED.

Dated: September 9, 2026 ___________________________________ Randolph M. Hammock Judge of the Superior Court

FN 1 - This is not to say that harassment and discrimination cannot overlap. They certainly can. (See Roby, supra, 47 Cal.4th at p. 707 ["Although discrimination and harassment are separate wrongs, they are sometimes closely interrelated, and even overlapping, particularly with regard to proof"].)

FN 2 - Plaintiff's seventh cause of action for declaratory relief seeks "a judicial declaration: (a) that the Ending Forced Arbitration Act, 9 USC Sec. 401et seq. ("EFAA") applies to the first cause of action in this complaint; and (b) that the remaining causes of action should also remain in court in accordance with applicable law interpreting EFAA and FEHA." (Compl. P.70.) There is no other request for declaratory relief. Any party may submit on the tentative ruling by contacting the courtroom via email at SMCDept509@lacourt.ca.gov by no later than 4:00 p.m. the day before the hearing.

All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an