Russell v. Five Star Home Health CA2/8

Filed 11/29/22 Russell v. Five Star Home Health CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

EVELIN RUSSELL, B307230

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. 18STCV06073) v.

FIVE STAR HOME HEALTH, INC. et al.,

Defendants and Appellants.

APPEAL from an order of the Superior Court of Los Angeles County. Randolph M. Hammock, Judge. Affirmed. Bent Caryl & Kroll and Steven M. Kroll for Defendants and Appellants. JML Law, Joseph M. Lovretovich, Nicholas W. Sarris, Jennifer A. Lipski and Brooke C. Bellah for Plaintiff and Respondent.

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Defendants and appellants Five Star Home Health, Inc. and Anthony Nieves appeal from the denial of their motion to compel arbitration. The trial court found defendants waived their right to compel arbitration of plaintiff and respondent Evelin Russell’s employment discrimination claim. We find substantial evidence supports that ruling and therefore affirm. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff alleges she is the victim of workplace sexual harassment and discrimination. Plaintiff and Nieves were dating when he hired her in August 2016 to work as the office manager of his company, Five Star Home Health, Inc. The harassment began almost a year later after plaintiff ended her personal relationship with Nieves. Plaintiff alleges Nieves initially begged and pressured her to resume their relationship. When she refused, Nieves then began to harass and disparage her at work, ultimately firing her in or about August 2017. Plaintiff filed an administrative complaint with the Department of Fair Employment and Housing in June 2018. On November 26, 2018, plaintiff filed this action, alleging four statutory claims pursuant to the Fair Employment and Housing Act (FEHA; Gov. Code, § 12940 et seq.) and a common law claim for wrongful termination in violation of public policy. In December 2018, before filing a responsive pleading, defendants served written discovery requests on plaintiff, including two sets of interrogatories, requests for admissions and a request for production of documents. Plaintiff responded and served written discovery on Five Star Home Health. Five Star Home Health responded to plaintiff’s discovery. On February 28, 2019, the parties attended a case management conference. Both plaintiff and defendants