Electronically FILED by Superior Court of California, County of Los Angeles on 08/01/2019 10:23 AM Sherri R.

Carter, Executive Officer/Clerk of Court, by J. So,Deputy Clerk

VENABLE LLP
1 David E. Fink (SBN 169212)
defink@venable.com
2 Daniel P. Hoffer (SBN 173812)
dphoffer@venable.com
3 Rudolph G. Klapper (SBN 300721)
rgklapper@venable.com
4 2049 Century Park East, Suite 2300
Los Angeles, CA 90067
5 Telephone: (310) 229-9900
Facsimile: (310) 229-9901
6
Attorneys for Defendants
7 VIN DI BONA ENTERTAINMENT, INC., and
FISHBOWL WORLDWIDE MEDIA
8

9 SUPERIOR COURT OF THE STATE OF CALIFORNIA

10 FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

11
2049 CENTURY PARK EAST, SUITE 2300

12 JANE ROE 1, JANE ROE 2, AND JANE ROE 3, Case No.: 19STCV09487
LOS ANGELES, CA 90067
VENABLE LLP

on behalf of themselves and all other Aggrieved

13 Employees,
310-229-9900

Hon. Dennis J. Landin

14 Plaintiffs, Dept. 51
15 v.
NOTICE OF ORDER AND RULING RE
16 VIN DI BONA ENTERTAINMENT, INC., a MOTION TO COMPEL
California Corporation, FISHBOWL ARBITRATION BY DEFENDANTS VIN
17 WORLDWIDE MEDIA, an unknown entity type, DI BONA ENTERTAINMENT, INC.,
PHIL SHAFRAN, an Individual, and DOES 1 AND FISHBOWL WORLDWIDE
18 through 50, inclusive, MEDIA
19 Defendants. Date: July 24, 2019
Time: 9:00 a.m.
20 Dept. 51
21 RESERVATION ID: 609641646980
22 Complaint Filed: March 19, 2019
FAC Filed: May 1, 2019
23 Trial Date: None set
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NOTICE OF ORDER AND RULING RE DEFENDANTS’ MOTION TO COMPEL ARBITRATION

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 1 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:

2 PLEASE TAKE NOTICE that after the Court took Defendants’ Motion to Compel

3 Arbitration (the “Motion”) under submission following the July 24, 2019 hearing on the Motion,

4 the Court issued an Order dated July 25, 2019, granting the Motion in full and incorporating by

5 reference the Court’s Ruling on the Motion. The Court also ordered Defendants to give notice.

6 A copy of the Order dated July 25, 2019, and the incorporated Ruling of the same date, is

7 attached and incorporated by reference herein as Exhibit A.

8
VENABLE LLP
9 DATED: August 1, 2019

10 By:
David E. Fink
11 Daniel P. Hoffer
2049 CENTURY PARK EAST, SUITE 2300

Rudolph G. Klapper
12 Attorneys for Defendants
LOS ANGELES, CA 90067
VENABLE LLP

VIN DI BONA ENTERTAINMENT, INC.,

13 and FISHBOWL WORLDWIDE MEDIA
310-229-9900

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1
NOTICE OF ORDER AND RULING RE DEFENDANTS’ MOTION TO COMPEL ARBITRATION
EXHIBIT A
 SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES
Civil Division
Central District, Stanley Mosk Courthouse, Department 51

19STCV09487 July 25, 2019

JANE ROE 1, ON BEHALF OF THEMSELVES AND ALL 11:00 AM
OTHER AGGRIEVED EMPLOYEES, et al. vs VIN DI BONA
ENTERTAINMENT, INC., A CALIFORNIA CORPORATION,
et al.

Judge: Honorable Dennis J. Landin CSR: None

Judicial Assistant: J. Clavero ERM: None
Courtroom Assistant: A. Alba Deputy Sheriff: None

APPEARANCES:
For Plaintiff(s): No Appearances
For Defendant(s): No Appearances

NATURE OF PROCEEDINGS: Ruling on Submitted Matter

The Court, having taken the matter under submission on July 24, 2019, now rules as follows:

Defendants' Motion to Compel Arbitration is GRANTED.

The Order titled "Ruling Re: Motion to Compel Arbitration" is signed and filed this date and
incorporated herein by reference. A copy of said order is mailed to defendants.

Defendants to give notice.

Certificate of Mailing is attached.

Minute Order Page 1 of 1

. "

Superior Court of California

County of Los Angeles

Department 51

JANE ROE 1, et al., Case No.: 19STCV09487

Plaintiffs, Hearing Date: 0712412019
v. Trial Date: None Set
VIN DI BONA ENTERTAINMENT, INC., et RULING RE:
al. Motion to Compel Arbitration
Defendants.

Background:

Plaintiffs Jane Roe 1, 2 and 3 ("Plaintiffs") bring this action against Defendants Vin Di Bona
Entertainment, Inc., et al. ("Defendants") for damages, alleging that Plaintiffs were subject to
sexual and racial harassment by their supervisor Phil Shafran ("Shafran") and that Defendants
failed to take remedial actions.

On March 19, 2019, Plaintiffs filed the Complaint, and on May 1, 2019, the First Amended ·
Complaint ("FAC") for the following causes of action:
(1) gender violence in violation of the Ralph Act;
(2) violation of Labor Code Section 1102.5;
(3) negligent retention;
(4) intentional infliction of emotional distress;
(5) negligent infliction of emotional distress;
(6) wrongful termination in violation of public policy;
(7) discrimination in violation of the FEHA;
(8) harassment in violation of the FEHA;
(9) retaliation in violation of the FEHA;
(10) failure to prevent in violation of the FEHA; and
(11) violation of Labor Code Section 6310.

On June 20, 2019, Defendants filed the instant Motion to Compel Arbitration, and on June 27 ,
2019, Shafran filed the same motion.

The Court considered the moving, opposition and reply papers, and rules as follows :

Motion to Compel Arbitration Standard

Code of Civil Procedure section 128 I .2 provides, in relevant part:

On petition of a party to an arbitration agreement alleging the existence of a written

agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such
controversy, the court shall order the petitioner and the respondent to arbitrate the
controversy if it determines that an agreement to arbitrate the controversy exists . ..
 (Code Civ. Proc.§ 1281.2.)

"California law reflects a strong public policy in favor of arbitration as a relatively quick and
inexpensive method for resolving disputes. [Citation.] To further that policy, [Code of Civil
Procedure] section 1281.2 requires a trial court to enforce a written arbitration agreement" unless
one of four limited exceptions applies. Acquire II. Ltd. v. Colton Real Estate Group (2013) 213
Cal.App.4th 959, 967. Those statutory exceptions arise where (1) a party waives the right to
arbitration; (2) grounds exist for revoking the arbitration agreement; and (3) pending litigation
with a third party creates the possibility of conflicting rulings on common factual or legal issues;
(4) the petitioner is a state or federally chartered depository institution that, on or after January 1,
2018, seeks to compel arbitration pursuant to a contract whose agreement was induced by fraud
or without respondent's consent. CCP §1281.2( a)-( d).

"The petitioner bears the burden of proving the existence of a valid arbitration agreement by the
preponderance of the evidence, and a party opposing the petition bears the burden of proving by
a preponderance of the evidence any fact necessary to its defense. 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.

"The party opposing arbitration has the burden of demonstrating that an arbitration clause cannot
be interpreted to require arbitration of the dispute." Rice v. Downs (2016) 24 7 Cal.App.4th 1213,
1223, citing Coast Plaza Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th
677, 686-87. The party opposing arbitration "bears a heavy burden.'' Saint Agnes Medical Center
v. PacifiCare of Cal. (2003) 31Cal.4th1187, 1195.

If the party opposing the motion raises a defense to enforcement, such as fraud in the execution
voiding the agreement, that party bears the burden of producing evidence of, and proving by a
preponderance of the evidence, any fact necessary to the defense. Rosenthal v. Great Western
Financial Sec. Corp. (1996) 14 Cal.4th 394, 413. The facts are to be proven by affidavit or
declaration and documentary evidence, with oral testimony taken only in the court's discretion.
Id at 413-14. The trial court's role is to resolve these factual issues , not merely to determine
whether evidence opposing the petition has sufficient substantiality. Id. at 414.

If a court orders arbitration of a controversy which is an issue involved in an action or

proceeding pending before a court, 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. CCP § 1281.4.

Analysis

Actual Parties in the Arbitration Agreement

As an initial matter, Plaintiffs argue that the actual parties in this case are not the parties to the
alleged arbitration agreement submitted by Defendants. Specifically, Plaintiffs argue that the
purported agreement was made and signed by "Cara Communications Corporation d/b/a Vin Di
Bona Productions", and therefore, neither of the Defendants can claim their rights to arbitration

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as the parties to the agreement.

The Court finds this argument unavailing. The Court notes that Defendants are entities separate
from the named party Cara Communications Corporations. However, Defendants are entitled to
require arbitration as either direct parties or third party beneficiaries of the purported agreement.
First, since that the records show that Cara Communications Corporations is Plaintiffs' actual
employer, it would be nonsensical to allow Plaintiffs to avoid arbitration because they
intentionally named entities other than the one named in the agreement.

Further, even if Defendants were not the actual parties to the agreement, the Court finds that
Defendants can enforce the arbitration agreement as third party beneficiaries. Third party
beneficiaries may be entitled to enforce arbitration clauses in contracts entered into on their
behatt: even if not named in the agreement. Macaulay v. Norlander (1992) 12 Cal.App.4th 1,7-8.
The third party's right to enforce an arbitration provision is predicated on proving the contracting
parties' intent. City of Hope v. Bryan Cave, L.L.P. (2002) 102 Cal.App.4th 1356, 1369.

Also, under the equitable estoppel doctrine, a nonsignatory may enforce an arbitration clause
when the claims against the nonsignatory are "dependent upon, or founded in and inextricably
intertwined with," the obligations imposed by the agreement containing the arbitration clause.
Goldman v. KPMG LLP (2009) 173 Cal.App.4th 209, 217-218; Marenco v. DirectTV LLC
(2015) 233 Cal.App.4th 1409, 1419-1420.

Here, it is evident from the plain language of the agreement that this agreement was made with
regards to lawsuit against the employer arising from the patties' employment relationship. Since
Defendants are in effect under common control and ownership with Cara Communications
Corporations, which is the actual employer of a11 employees, the Court finds that the arbitration
agreement was entered into on Defendants ' behalf as well. Also, Plaintiffs' claims against the
nonsignatory Defendants are inextricably dependent upon the obligations imposed by the
agreement. Therefore, the Court finds that Defondants are entitled to enforce the purported
arbitration agreement, to the extent that it is valid and enforceable.

Unconscionabfi!ity

Plaintiffs argue that there is no valid and enforceable arbitration agreement to require Plaintiffs
to arbitrate their claims against their former employer because the purported agreement is
procedurally and substantively unconscionable, and that whether an arbitration agreement exists
at all is a question of fact for the jury.

First, under California law, the Court finds that whether a valid, enforceable arbitration
agreement exists is determined by the Court, not by the jury. "[W]hen a petition to compel
arbitration is filed and accompanied by prirna facie evidence of a written agreement to arbitrate
the controversy, the court itself must determine whether the agreement exists and, if any defense
to its enforcement is raised, whether it is enforceable." Hotels Nevada v. L.A. Pacific Center.
Inc. (2006) 144 Cal.App.4th 754, 761. Plaintiffs citation to New Prime, Inc. V. Oliveira (2019)
139 S.Ct. 532 is inapposite, as nowhere does it mention that a jury must determine whether the
parties entered into a binding arbitration agreement. As such, the Court has the authority to
determine whether the agreement is valid and enforceable.

Further, the Court finds that Plaintiffs fail to sufficiently satisfy the heavy burden of proving both
procedural and substantive unconscionability. See Parada v. Sup~ Ct. (2009) 176 Cal.App.4th
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1554, 1570 ("Both procedural and substantive unconscionability must be present for a court to
refuse to enforce a contract provision under the doctrine ofunconscionability."). "California has
a strong public policy in favor of arbitration and any doubts regarding the arbitrability of a
dispute are resolved in favor of arbitration .... This strong policy has resulted in the general rule
that arbitration should be upheld 'unless it can be said with assurance that an arbitration clause is
not susceptible to an interpretation covering the asserted dispute.' " Rice v. Downs (2016) 248
Cal.App.4th 175, 185. In light of this, the Court addresses whether Plaintiffs show both
procedural and substantive unconscionability by a preponderance of the evidence. Giuliano,
supra, 149 Cal.App.4th at 1284.

Plaintiffs argue that the arbitration agreement is procedurally unconscionable because Plaintiffs
were required to sign prior to working for Defendants as a condition of employment and were
not provided a copy of the arbitration rule.

"Procedural unconscionability focuses on the elements of oppression and surprise." Serpa v.

California Surety Investigations, Inc. (2013) 215 Cal.App.4th 695, 701- 702. When "the degree
of procedural unconscionability of an adhesion agreement is low [ . . .]the agreement will be
enforceable unless the degree of substantive unconscionability is high." Id. at 704. '" [A] finding
of procedural unconscionability does not mean that a contract will not be enforced, but rather
that courts will scrutinize the substantive terms of the contract to ensure they are not manifestly
unfair or one-sided.' [Citation.]" Sanchez v. Valencia Holding Co., LLC (2015) 61 Cal.4th 899,
915.

Upon review of declarations from both parties, the Court finds that Plaintiffs fail to sufficiently
show that the arbitration agreement was presented on a take-it-or-leave-it-basis. Neither do
Plaintiffs contest that they refused to sign the agreement or otherwise objected to the arbitration
procedure. Plaintiffs also fail to present legal authorities to show that failure to provide a copy of
the agreement or sufficient time to review the agreement constitutes procedural
unconscionability in this context. Furthermore, the Court of Appeal has held that, "a compulsory
pre-dispute arbitration agreement is not rendered unenforceable just because it is required as a
condition of employment or offered on a 'take it or leave it' basis." Lagatree v. Luce, Forward,
Hamilton& Scripps (1999) 74Cal.App.4th1105, 1127. Accordingly, Plaintiff's arguments
for procedural unconscionability ar~ unavailing.

Plaintiffs also argue that the arbitration agreement is substantively unconscionable because the
agreement only permits limited document discovery and does not provide for declaratory or
injunctive relief and other administrative charges.

"Substantive unconscionability focuses on the actual terms of the agreement and evaluates
whether they create an ""overly harsh"" or ""one-sided"' result' [Citation.]" Serpa, supra, 215
Cal.App.4th at 702. An agreement must also contain a "modicum of bilaterality" such that the
agreement is fair to both sides and not weighted in the employer's favor. Armendariz 24 Cal.4th
at 117-118. "[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 ofrelief 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. (2000) 24
Cal.4th 83 , 102.
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Here, review of the arbitration agreement reveals that it provides for reasonable and adequate
discovery and provides that the arbitration's decision "shall be enforceable in the manner and to
the extent permissible by law", not precluding any type ofrelief. (Mot., Exs. 1-3.) Further,
Plaintiff's argument that the agreement is unconscionable because it fails to carve out
administrative filings with the DFEH or the LWDA lacks is not supported by any legal authority.
Rather, the agreement provides that employees are not prohibited from filing charges with U.S.
EEOC or the NLRB, thereby satisfying Armendariz factors . (Mot., Bxs. 1-3.) Accordingly,
Plaintiffs arguments for substantive unconscionability are unavailing.

For the foregoing reasons, Plaintiff is unable to show, by a preponderance of the evidence, a
proper basis for not compelling arbitration.

PAGA claims

Next, Plaintiffs argue that their two representative claims under Labor Code § § 1102.5 and 6310
are brought on behalf of themselves and all others similarly situated against Defendants, and
therefore, these PAGA claims are not subject to arbitration.

California Supreme Court rnled that a representative action under the PAGA that sought only
civil penalties is not subject to arbitration, because the text of the Federal Arbitration Act's focus
is on private disputes, not disputes between an employer and a state agency-parties with no
contractual relationship. Iskanian v. CLS Transportation Los Angeles. LLC (2014) 59 Cal.4th
348, 384; see Esparza v. KS Industries, L.P. (2017) 13 Cal.App.5th 1228, 1244. However, the
Supreme Court limited the scope of its ruling to claims "that can only be brought by the state or
its representatives" based on the distinction between civil penalties and statutory damages: "[t]he
civil penalties recovered on behalf of the state under the PAGA are distinct from the statutory
damages to which employees may be entitled in their individual capacities." Ibid.

Similarly, in Esparza, the Court of Appeal confirmed that "civil penalties do not include
recoveries that could have been obtained by individual employees suing in their individual
capacities-that is, victim-specific relief." Esparza, supra, 13 Cal.App.5th at 1243 (rnling that
employees' attempt to recover unpaid wages under Labor Code section 558 on behalf of other
aggrieved employees involves victim-specific relief and private disputes.)

In light of this, the Court finds that Plaintiffs' claims under Labor Code §§ 1102.5 and 6310 do
not fall outside the Federal Arbitration Act as civil penalties. Plaintiffs' claims are in effect not
only seeking victim-specific relief from private disputes, but Plaintiffs also fail to show any
caselaw where claims under those statutes were recognized as "civil penalties" as defined in
Iskanian and were exempt from arbitration under the Federal Arbitration Act. Iskanian 59
Cal.4th at 384. Although Plaintiffs claim that the second and eleventh causes of action were
brought as a representative action 'on behalf of all others similarly situated' on the face of the
F AC, the Court finds that retaliatory and discriminatory discharge claims are necessarily based
on individual facts and victim-specific and the F AC does not contain any allegations as to other
similarly situated employees. Merely titling the claims as a representative action does not suffice .
Esparza, supra, 13 Cal.App.5th at 1243 ("In Iskanian, our Supreme Court clearly expressed the
need to avoid semantics and analyze substance in determining the scope of representative claims
that could be pursued outside arbitration without violating the Federal Arbitration Act.").

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Therefore, Plaintiffs' argument that their purported representative claims cannot be compelled to
arbitration is unavailing.

For the foregoing reasons, the Court finds that Plaintiffs' all causes of action are subject to their
valid, enforceable arbitration agreements respectively with Defendants. Defendants' Motion to
Compel Arbitration is GRANTED.

Conclusion

Defendants' Motion to Compel Arbitration is GRANTED.

Defendants to give notice.

Dated:
JUL 2 5 2019
Superior Court Judge

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 1 PROOF OF SERVICE
2 STATE OF CALIFORNIA )
) ss.
3 COUNTY OF LOS ANGELES )
4
At the time of service, I was over the age of 18 and not a party to this action. My
5 business address is 2049 Century Park East, #2300, Los Angeles, California 90067. On
August 1, 2019, I served the foregoing document(s), NOTICE OF ORDER AND RULING
6 RE MOTION TO COMPEL ARBITRATION BY DEFENDANTS VIN DI BONA
ENTERTAINMENT, INC., AND FISHBOWL WORLDWIDE MEDIA on the person(s)
7 below:
8
Barbara Figari Cowan, Esq. Attorneys for Plaintiffs
9 Workplace Advocates, LLC
9431 Haven Avenue, Suite 100
10 Rancho Cucamonga, CA 91730
Facsimile: (877) 459-3540
11 Email: barbara@theworkplaceadvocates.com
2049 CENTURY PARK EAST, SUITE 2300

12
LOS ANGELES, CA 90067
VENABLE LLP

13 Gary J. Gorham, Esq. Attorneys for Defendant Phil Shafran

310-229-9900

Raskin Gorham Anderson Law

14 11333 Iowa Avenue
Los Angeles, CA 90025
15 Facsimile: (310) 202-5540
16 Email: ggorham@raskinlawllp.com

17 The documents were served by the following means (specify):

18  BY OVERNIGHT DELIVERY (CCP §1013(c)&(d)): I am readily familiar with

the firm’s practice of collection and processing items for delivery with Overnight
19 Delivery. Under that practice such envelope(s) is deposited at a facility regularly
maintained by Overnight Delivery or delivered to an authorized courier or driver
20 authorized by Overnight Delivery to receive such envelope(s), on the same day this
declaration was executed, with delivery fees fully provided for at 2049 Century
21 Park East, Suite 2300, Los Angeles, California, in the ordinary course of business.

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23 I am a resident or employed in the county where the mailing occurred. The envelope or
package was placed in the mail at Los Angeles, California.
24
I declare under penalty of perjury under the laws of the State of California that the
25 above is true and correct. Executed on August 1, 2019, at Los Angeles, California.

26
Shannon E. Ramme
27

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PROOF OF SERVICE