Vallejo v. Flynn Restaurant Group CA3

Opinion

Filed 9/28/26 Vallejo v. Flynn Restaurant Group CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin)

CHERYL VALLEJO, C103319 Plaintiff and Respondent, (Super. Ct. No. STK-CV-UWT- v. 2023-0011619)

FLYNN RESTAURANT GROUP, LP, et al., Defendants and Appellants.

This is an appeal from an order denying a motion to compel arbitration. Plaintiff Cheryl Vallejo sued defendants Apple American Group LLC, a subsidiary of Flynn Restaurant Group LP, and Domingo Riego (collectively, defendants) alleging sexual harassment, discrimination, wage-and-hour violations, and other employment-related causes of action. Defendants filed a motion to compel arbitration of her claims based on an arbitration agreement plaintiff signed as a condition of her employment. The trial court denied the motion based on the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” (the EFAA) (9 U.S.C. §§ 401-402), which, in general terms, renders arbitration agreements unenforceable in “a case which … relates to” a sexual harassment dispute. (9 U.S.C. § 402(a).)

1 On appeal, defendants contend that the trial court erred by denying their motion to compel arbitration because Vallejo failed to adequately allege a sexual harassment dispute within the meaning of the EFAA. Alternatively, even if Vallejo has adequately alleged a sexual harassment dispute, defendants argue that the trial court erred in failing to compel Vallejo to arbitrate the claims that are unrelated to that dispute. We find that Vallejo sufficiently alleged a sexual harassment claim within the meaning of the EFAA. In addition, consistent with the other published California cases that have considered the issue, we hold that where a plaintiff alleges conduct constituting a sexual harassment dispute, the EFAA precludes arbitration as to the entire “case.” Accordingly, we affirm the trial court’s order.

BACKGROUND FACTS AND PROCEDURE Apple American Group LLC, a subsidiary of Flynn Restaurant Group LP (collectively, the Company), employed plaintiff Cheryl Vallejo from May 2021 to June 2023. As a condition of her employment, Vallejo signed a document acknowledging her receipt of, and agreement to abide by, a multi-step “dispute resolution” procedure. Subject to exceptions not relevant here, the final phase of that procedure requires arbitration of all “legal claims [that Vallejo] may now or in the future have against the Company or against its officers, directors, shareholders, employees or agents,” as well as any claims “that the Company may now or in the future have against [her]” (the “arbitration agreement”). In the arbitration agreement, the parties agreed that the Company is engaged in transactions involving interstate commerce and therefore the Federal Arbitration Act of 1925 (the FAA) (9 U.S.C. § 1 et seq.) shall govern the interpretation and enforcement of the agreement and any proceedings thereunder.

2 In November 2023, five months after resigning her employment, Vallejo sued the Company and her former supervisor, Domingo Riego. Vallejo’s complaint alleges that, beginning in May 2021, she was employed as a bartender at an Applebee’s restaurant in Lodi, California, supervised by Riego, the general manager. The complaint alleges that, during the period of her employment, Vallejo was subjected to a culture of sexual harassment and gender discrimination, which included “unwanted physical touching,” “gender-based scrutiny of [her] appearance,” and “verbal abuse.” Specifically, the complaint alleges that Riego “constantly” paid “unwanted attention” to Vallejo, micromanaged her work, and “routinely” commented on her appearance (e.g., her hair and earrings). Although the comments about her appearance ostensibly related to “corporate protocols,” Vallejo believed they were gender-based comments because Riego “did not make such comments to male employees, who were often in violation of company dress codes.” Riego also publicly referred to Vallejo as “ ‘the witch,’ ” which Vallejo interpreted as an expression of gender bias. In addition, the complaint alleged that Riego “often” would physically punch Vallejo on her shoulder while she was working, causing “physical pain” and “throbbing” in her arm. Vallejo “did not witness” Riego punching male employees in the same manner. The complaint alleges that Vallejo demanded that Riego stop punching her, but Riego refused to stop and retaliated against Vallejo by increasing scrutiny of her work, yelling at her, and manipulating her work schedule so that she would receive less income from tips. Riego’s actions allegedly caused Vallejo to suffer anxiety and emotional distress until she eventually was “constructively terminated” in June 2023. The complaint also accuses Riego of age discrimination. In particular, it alleges that Riego “would routinely hire younger employees” and that Vallejo received “increased scrutiny of her appearance, and work performance, due to her age.” Vallejo allegedly did not witness younger employees being subjected to the same level of scrutiny.

3 In addition to the discrimination and harassment allegations, the complaint also alleges wage and hour violations. It alleges that defendants “refused to follow laws regarding employee breaks,” by failing to provide mandated breaks or requiring employees to work through mandated breaks. As a result, Vallejo’s wage statements were inaccurate, and she was not fully compensated for the time that she worked, including overtime. Based on these factual allegations, the complaint asserts 15 causes of action, for (1) gender discrimination, (2) age discrimination, (3) sexual harassment, (4) retaliation in violation of California’s Fair Employment and Housing Act of 1959 (FEHA) (Gov. Code, § 12900 et seq.), (5) whistleblower retaliation (Lab. Code, § 1102.5), (6) wrongful (constructive) termination, (7) battery, (8) failure to pay minimum wages, (9) failure to pay overtime wages, (10) meal period violations, (11) rest period violations, (12) untimely payment of wages, (13) inaccurate wage statements, (14) waiting time penalties, and (15) unlawful business practices (Bus. & Prof. Code, § 17200 et seq.). Defendants answered the complaint, asserting the arbitration agreement as an affirmative defense. Shortly thereafter, defendants noticed Vallejo’s deposition and served her with a set of form interrogatories probing (among other things) the factual basis of her discrimination and harassment allegations. In April 2024, defendants filed a motion to compel arbitration. In their motion, defendants conceded that enactment of the EFAA rendered pre-dispute arbitration agreements unenforceable in certain cases involving sexual assault or sexual harassment. However, defendants argued that the EFAA did not apply to this case because Vallejo’s complaint fails to sufficiently allege a claim of sexual harassment. Defendants also argued that even if the arbitration agreement is unenforceable as to the purported sexual harassment claim, Vallejo’s other claims should be ordered to arbitration. Vallejo opposed the motion.

4 While the motion to compel arbitration was pending, the Court of Appeal, Second Appellate District, Division Three, issued its decision in Doe v. Second Street Corp. (2024) 105 Cal.App.5th 552 (Second Street). The appellate court ruled that where a complaint alleges conduct constituting a sexual harassment dispute within the meaning of the EFAA, the EFAA precludes arbitration as to all claims in that case, not merely the claims that allege sexual harassment or relate to a sexual harassment dispute. (Second Street, at pp. 560, 573, 577.) In the wake of Second Street, the trial court continued the hearing on the motion and requested supplemental briefing regarding the effect of the decision. Both parties filed supplemental briefs. In December 2024, the trial court denied the motion to compel arbitration. As a threshold matter, the court found that defendants had met their burden of establishing that the parties had an agreement to arbitrate Vallejo’s claims and that defendants had not waived arbitration by engaging in discovery. However, the trial court also concluded that the arbitration agreement is unenforceable under the EFAA because (1) Vallejo’s allegations are sufficient on their face to state a cause of action for sexual harassment, (2) all of Vallejo’s claims are “intertwined” with the sexual harassment dispute and therefore exempt from arbitration. The trial court mailed a notice of entry of its order on December 16, 2024. Defendants timely filed a notice of appeal on February 13, 2025.

DISCUSSION Defendants contend that the trial court’s order denying arbitration should be reversed because Vallejo has not plausibly alleged a sexual harassment dispute and therefore the EFAA is not a bar to arbitration. Alternatively, even if arbitration is barred as to Vallejo’s sexual harassment claim, defendants contend the EFAA does not bar arbitration of claims unrelated to sexual harassment.

5 I Standard of Review In general, we review a ruling on a petition to compel arbitration for abuse of discretion. (Casey v. Superior Court (2025) 108 Cal.App.5th 575, 583 (Casey).) But where, as here, the ruling presents a pure question of law, we review the order de novo. (Ibid.) It is the appellant’s burden to show that the trial court committed an error that justifies reversal. (Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.)

II

FAA and the EFAA As neither party disputes that the FAA governs their agreement, we apply the FAA to their dispute. (Liu v. Miniso Depot CA, Inc. (2024) 105 Cal.App.5th 791, 801 (Liu).) As relevant here, the FAA “establishes that agreements to arbitrate ‘shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract or as otherwise provided in [the EFAA].’ ” (Quilala v. Securitas Security Services USA, Inc. (2025) 117 Cal.App.5th 75, 82 (Quilala); 9 U.S.C. § 2.) Historically, courts interpreted this mandate expansively, emphasizing that “ ‘ “ ‘[a]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.’ ” ’ ” (Quilala, at p. 82.) However, Congress “created a narrow but significant exception to that general rule” when it enacted the EFAA in 2022. (Quilala, supra, 117 Cal.App.5th at p. 83.) In relevant part, the EFAA provides that “[n]otwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, … no pre[-]dispute arbitration agreement … 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.

6 § 402(a).) “In sum, while the FAA continues to reflect a strong federal policy favoring arbitration, the EFAA creates a targeted exception to that policy where allegations of sexual harassment or sexual assault are at issue, reflecting Congress’s determination that such claims warrant resolution through the public court system rather than through private arbitration.” (Quilala, at p. 83.) Thus, when a party seeks to compel arbitration under an agreement subject to the FAA, the trial court must evaluate whether arbitration is barred by the EFAA. (Quilala, at pp. 83-84.) The EFAA provides that federal law governs that decision. (Liu, supra, 105 Cal.App.5th at p. 802; 9 U.S.C. § 402(b).) To invoke the EFAA, a plaintiff must allege “conduct constituting a sexual harassment dispute or sexual assault dispute.” (9 U.S.C. § 402(a); see Bruce v. Adams & Reese, LLP (6th Cir. 2026) 168 F.4th 367, 375 (Bruce).) However, the EFAA does not define what it means for a plaintiff to allege such a dispute, and there is a split of authority as to how the statute should be interpreted. (Bruce, at p. 375.) Many federal courts—probably a majority—interpret the statute to implicitly incorporate the pleading standard of the Federal Rules of Civil Procedure (Fed. Rules Civ. Proc., rule 12(b)(6), 28 U.S.C.). (Yost v. Everyrealm, Inc. (S.D.N.Y. 2023) 657 F. Supp.3d 563, 585; accord, Kelly v. Rosenberg & Estis, P.C. (S.D.N.Y. 2025) 804 F. Supp.3d 461, 465 (Kelly); Prerna Singh v. MeetUp LLC (S.D.N.Y. 2024) 750 F. Supp.3d 250, 253; Memmer v. United Wholesale Mortgage (E.D.Mich. Feb. 27, 2026, No. 23-cv- 10921) 2026 U.S. Dist. LEXIS 41385, at pp. *15-16; Smith v. Boehringer Ingelheim Pharmaceuticals, LLC (D.Conn. Aug. 19, 2025, No. 3:24-cv-01266 (KAD)) 2025 U.S. Dist. LEXIS 160508, at pp. *12-14; Van De Hey v. EPAM Systems (N.D.Cal. Feb. 28, 2025, No. 24-cv-08800-RFL) 2025 U.S. Dist. LEXIS 48775, at pp. *8-9.)1 Under this 1 We may cite unpublished federal court decisions as persuasive authority. (The Travelers Indemnity Co. of Connecticut v. Navigators Specialty Ins. Co. (2021) 70 Cal.App.5th 341, 362, fn. 16.)

7 view, for the EFAA to apply, the plaintiff must allege enough facts to state a facially plausible claim for sexual harassment or assault. (Yost, at p. 577.) “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. [Citation.] The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” (Ashcroft v. Iqbal (2009) 556 U.S. 662, 678; accord, Sheehan v. Everstory Partners (E.D.Pa. 2025) 804 F. Supp.3d 498, 510 [factual allegations must be sufficient to raise a right to relief above the speculative level].) Pleadings that offer only “ ‘labels and conclusions,’ ” or a “ ‘formulaic recitation of the elements of a cause of action will not do.’ ” (Yost, at p. 577.) Other federal courts apply a more liberal standard, concluding that the plaintiff need only plead a “nonfrivolous” claim relating to sexual harassment/assault, with the sufficiency of that claim to be reserved for proper merits adjudication. (Diaz-Roa v. Hermes Law, P.C. (S.D.N.Y. 2024) 757 F. Supp.3d 498, 533-535 (Diaz-Roa); accord, MacKay v. PetSmart, Inc. (C.D.Cal. Dec. 2, 2025, No. EDCV 25-1626 JGB (DTBx)) 2025 U.S. Dist. LEXIS 168963, at pp. *11-12; Woodruff-Drouault v. Securitas Security Services USA (C.D.Cal. Dec. 3, 2025, No. EDCV 25-529 JGB (SPx)) 2025 U.S. Dist. LEXIS 253970, at pp. *9-10; Solis v. Prime Comms Retail, LLC (C.D.Cal. Apr. 7, 2025, No. 5:24-cv-02389-AH-(SHKx)) 2025 U.S. Dist. LEXIS 66307, at pp. *5-6; Cardenas v. F.D. Thomas, Inc. (E.D.Cal. Feb. 5, 2025, No. 2:24-cv-01814-DAD-JDP) 2025 U.S. Dist. LEXIS 21854, at pp. *9-10; Gill v. US Data Management,, LLC (C.D.Cal. Dec. 2, 2024, No. 2:24-cv-05255-MCS-MAR) 2024 U.S. Dist. LEXIS 239683, at pp. *6-7.) Under this view, even an implausible claim for sexual harassment/assault brings a case within the EFAA, so long as the claim was not sanctionably frivolous. (Yost v. Everyrealm, Inc., supra, 657 F. Supp.3d at p. 584.)

8 Vallejo rejects both these alternatives in favor of a third approach. She argues that because her claim is pending in state court, California’s liberal “ ‘fact pleading’ ” standard should apply. (See Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394, 408-409 [state procedural rules apply, even when a controversy is governed by federal law, unless state rules would impede uniform application of the law].) To comply with this standard, a plaintiff need only allege ultimate facts, sufficient to acquaint the defendant with the nature, source, and extent of the plaintiff’s cause of action. (Thomas v. Regents of University of California (2023) 97 Cal.App.5th 587, 610- 611 (Thomas). Here, we need not decide which standard applies because we find Vallejo’s complaint adequately alleges a sexual harassment claim under even the most demanding standard. As relevant here, a plaintiff seeking to invoke the EFAA must “alleg[e] conduct constituting a sexual harassment dispute.” (9 U.S.C. § 402(a).) The EFAA defines the term “ ‘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. § 401(4).)

A. Sexual Harassment under FEHA Vallejo’s third cause of action alleges sexual harassment under FEHA. Section 12940 of FEHA makes it an unlawful employment practice for an employer to harass an employee “because of … sex [or] gender….” (Gov. Code, § 12940, subds. (j)(1), (j)(4); see Cal. Code Regs., tit. 2, § 11030, subd. (c) [definition of “ ‘[s]ex’ ” includes “gender”].) The prohibition against harassment is intended to guarantee that members of both sexes enjoy equal employment benefits. (Gov. Code, § 12920; Cal. Code Regs., tit. 2, §§ 11029, subd. (b), 11008, subd. (h)(3); Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 277-278 (Lyle).)

9 Under FEHA, prohibited harassment is not limited to unwanted sexual advances and requests for sexual favors. (Wawrzenski v. United Airlines, Inc. (2024) 106 Cal.App.5th 663, 692 (Wawrzenski); Cal. Code Regs., tit. 2, § 11019, subd. (b)(2)(D).) It also includes “ ‘verbal, physical, and visual harassment.’ ” (Lyle, supra, 38 Cal.4th at p. 280; Cal. Code Regs., tit. 2, § 11019, subd. (b)(2); CACI No. 2523.) Verbal harassment may include epithets, derogatory comments or slurs. (Lyle, at p. 280.) Physical harassment may include “assault, impeding or blocking movement, or any physical interference with normal work or movement.” (Ibid.) Such actions need not be motivated by sexual desire or involve sexual conduct to constitute prohibited sexual harassment. (Gov. Code, § 12940, subd. (j)(4)(C); Cal. Code Regs., tit. 2, § 11034, subd. (f); Pantoja v. Anton (2011) 198 Cal.App.4th 87, 114 (Pantoja); Lyle, at pp. 279-280; Thomas, supra, 97 Cal.App.5th at p. 609; see EEOC v. National Education Assn. (9th Cir. 2005) 422 F.3d 840, 844.)2 “ ‘ “[I]t is the disparate treatment of an employee on the basis of sex—not the mere discussion of sex or use of vulgar language—that is the essence of a sexual harassment claim [under FEHA].” ’ ” (Decloedt v. RadNet Management, Inc. (2026) 121Cal.App.5th 732, 744 (Decloedt); see Pantoja, at pp. 114, 130.) “[A]busive conduct that is not facially sex specific can be grounds for a … sexual harassment claim if it is inflicted because of gender, i.e., if men and women are treated differently and the conduct is motivated by gender bias.” (Pantoja, at p. 130; see Decloedt, at pp. 746-747 [derogatory comments, criticism, and unwanted touching]; Accardi v. Superior Court (1993) 17 Cal.App.4th 341, 346, 348-351 (Accardi) [spreading untrue rumors, deliberately singling plaintiff out for unfavorable work assignments, and 2 California courts often rely on federal decisions interpreting Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) when determining the meaning of analogous parts of FEHA. (Camargo v. California Portland Cement Co. (2001) 86 Cal.App.4th 995, 1006.)

10 making unsubstantiated complaints]; see also Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 709 [even official employment actions can support a harassment claim by providing evidence of discriminatory animus].) FEHA recognizes two theories of sexual harassment: quid pro quo, where a term of employment is conditioned upon submission to unwelcome sexual advances; and hostile work environment, where the harassment is sufficiently severe or pervasive so as to alter the conditions of employment and create an abusive work environment. (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1058-1059; Haberman v. Cengage Learning, Inc. (2009) 180 Cal.App.4th 365, 378.) This appeal deals solely with the “hostile work environment” theory of sexual harassment.

B. Hostile Work Environment Under FEHA, a hostile work environment exists “when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform the job as usual, or otherwise interfere with and undermine the victim’s personal sense of well-being.” (Gov. Code, § 12923, subd. (a).) To prevail on a hostile work environment claim, an employee must show that he or she was subjected to harassing conduct that was (1) unwelcome, (2) because of sex, and (3) sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment. (Decloedt, supra, 121Cal.App.5th at p. 735; Wawrzenski, supra, 106 Cal.App.5th at p. 693; CACI Nos. 2521A and 2522A.) The working environment “ ‘must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.’ ” (Lyle, supra, 38 Cal.4th at p. 284.)

11 Whether the harassing conduct complained of is sufficiently severe or pervasive to create a hostile work environment must be determined from the totality of the circumstances. (Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 149-150.) Factors to be considered in evaluating the totality of the circumstances include (1) the nature of the conduct (with physical touching generally considered more offensive than words); (2) its severity; (3) how often and over what period of time the harassing conduct occurred, and (4) the context in which it occurred. (Id. at p. 150; Wawrzenski, supra, 106 Cal.App.5th at p. 693; CACI No. 2524.) An employee claiming harassment based upon a hostile work environment must demonstrate that the conduct complained of was severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of sex. (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 462 (Miller).) The required level of severity varies inversely with the pervasiveness of the conduct. (Wawrzenski, supra, 106 Cal.App.5th at p. 693.) The inquiry should focus on whether the harassing conduct has unreasonably interfered with the plaintiff’s work performance. (Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 25 (conc. opn. of Ginsburg, J.) To show such interference, “ ‘the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment.’ [Citation.] It suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to ‘make it more difficult to do the job.’ ” (Ibid.; Gov. Code, § 12923, subd. (a); see Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 409 [a workplace permeated with discriminatory intimidation, ridicule, and insult is sufficiently severe or pervasive to create an abusive working environment].) C. Vallejo’s Allegations of Hostile Work Environment Defendants argue that the EFAA does not apply because Vallejo has not alleged sufficient facts to state a plausible sexual harassment claim. Defendants contend that 12 Vallejo’s sexual harassment claim fails because she has not sufficiently alleged (1) that defendants’ conduct was sexually motivated or had a sexual connotation, (2) that Vallejo was harassed “ ‘because of’ ” her sex, or (3) that the challenged conduct was sufficiently severe or pervasive to constitute actionable harassment. Assuming, without deciding, that the plausibility standard of rule 12(b)(6) of the Federal Rules of Civil Procedure (28 U.S.C.) applies, we conclude that defendants have failed to show that the trial court erred in finding Vallejo’s allegations sufficient to trigger the EFAA. First, to plead a cause of action for hostile work environment under FEHA, it is not necessary to allege that the harassing conduct is sexually motivated or sexual in nature. (Miller, supra, 36 Cal.4th at pp. 461-462; Pantoja, supra, 198 Cal.App.4th at p. 114; Thomas, supra, 97 Cal.App.5th at p. 609.) It is only necessary to show that the plaintiff’s gender/sex is a substantial factor in the discrimination and that (2) if the plaintiff had been a different gender/sex, the plaintiff would not have been treated in the same manner. (Lyle, supra, 38 Cal.4th at p. 280; accord, Franks v. City of Santa Ana (9th Cir. 2018) 735 F.App’x 305, 307.) The disparate treatment of an employee because of sex is the essence of a FEHA sexual harassment claim. (Lyle, at p. 280.) The harassment alleged to be because of sex need not be explicitly sexual in nature. Thus, it is immaterial that Vallejo has not alleged such conduct. Second, Vallejo’s complaint plausibly alleges that she was subject to harassing conduct because of her sex. The complaint alleges that, during the course of her employment, Vallejo was subjected to repeated sexual harassment and gender discrimination, which included “unwanted physical touching,” “gender-based scrutiny of [her] appearance,” and “verbal abuse.” In particular, the complaint alleges that Riego often would punch Vallejo in the shoulder while she was working, to the point of causing her physical pain. Vallejo believes this conduct was sex-based because she did not see Riego treating male employees in the same manner. The complaint also alleges that 13 Riego “constantly” policed Vallejo’s appearance, yet “did not make such comments to male employees, who were often in violation of company dress codes.” In addition, the complaint alleges that Riego ridiculed Vallejo by using a demeaning and gendered nickname (“the witch”). Taken as true, these allegations are sufficient to state a plausible claim that Riego harassed Vallejo because of her sex. (See Thomas, supra, 97 Cal.App.5th at pp. 613-614; Decloedt, supra, 121Cal.App.5th at pp. 736-740]; Owens v. PricewaterhouseCoopers LLC (S.D.N.Y. 2025) 786 F. Supp.3d 831, 848 [drawing reasonable inferences where defendant allegedly did not treat male coworkers with the same behavior]; Diaz-Roa, supra, 757 F. Supp.3d at p. 556 [allegation that defendant commented negatively on plaintiff’s appearance, but did not focus on male employees’ appearances, supported inference that plaintiff was treated differently because of her sex]; Bray v. Rhythm Management Group, LLC (D.Md. Sep. 24, 2024, Civil Action No. TDC-23-3142) 2024 U.S. Dist. LEXIS 173020, at p. *13 [hostility alleged to be based on sex because plaintiff did not see supervisor engage in hostile and derogatory conduct toward men]; see also Lyle, supra, 38 Cal.4th at pp. 279-280 [the critical issue is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed].) Finally, we conclude that the alleged harassing conduct was sufficiently severe or pervasive to create an environment where a reasonable person would find it hostile or abusive and that Vallejo herself subjectively perceived to be hostile or abusive. A supervisor’s repeated, unwanted punching of an employee’s arm, to the point of causing pain, combined with public ridicule and differential treatment, is sufficient to disrupt an employee’s emotional tranquility, undermine the employee’s personal sense of well- being, and affect the employee’s ability to perform the job. (Gov. Code, § 12923, subd. (a); see Bruce, supra, 168 F.4th at p. 377 [severe or pervasive is considered in the 14 disjunctive].) Accordingly, Vallejo has adequately alleged a plausible sexual harassment claim within the meaning of the EFAA.3 D. Application of the EFAA to the Unrelated Claims Defendants argue that even if Vallejo’s complaint adequately alleges a sexual harassment dispute, the EFAA invalidates the arbitration agreement only with respect to the claims related to that dispute. Defendants argue that, because Vallejo’s claims for age discrimination and wage-and-hour violations are not related to the sexual harassment dispute, defendants contend the trial court erred in denying the motion to compel arbitration of those causes of action. We disagree. We conclude that the EFAA, by its plain terms, applies to the entire “case,” not merely to the specific claims that are related to a sexual harassment dispute. Accordingly, Vallejo may not be compelled to arbitrate any of the claims in her complaint. Because we are construing a federal statute, we follow the rules of statutory interpretation enunciated by the United States Supreme Court (Bostanian v. Liberty Savings Bank (1997) 52 Cal.App.4th 1075, 1079 (Bostonian)), which are similar to those used when construing California statutes. (McLaughlin v. Walnut Properties, Inc. (2004) 119 Cal.App.4th 293, 297 (McLaughlin).) Our primary function is to ascertain Congress’s intent to effectuate the purpose of the law. (Id. at pp. 297-298; Bostonian, at pp. 1079-1080.) We begin with the language of the statute itself, giving the words their ordinary meaning, construed in the context of the statute as a whole and the overall statutory scheme. (Bostonian, at. pp. 1079-1080.) Interpretations which would render some terms surplusage, defy common sense, or lead to absurdity are to be avoided.

3 We express no opinion about whether Vallejo will be able to prove the truth of her allegations at trial. For purposes of this opinion, we assume the truth of the facts alleged in the complaint and construe the allegations in a light most favorable to the non-moving party. (Figueroa v. United States (9th Cir. 1993) 7 F.3d 1405, 1409.)

15 (McLaughlin, at p. 298.) If the statutory language is clear and unambiguous, the plain meaning controls. (Babb v. Wilkie (2020) 589 U.S. 399, 413; Hardt v. Reliance Std. Life Ins. Co. (2010) 560 U.S. 242, 251.) Only if the language is ambiguous will a court consider extrinsic evidence and legislative history. (Grajales v. Commissioner of Internal Revenue (2d Cir. 2022) 47 F.4th 58, 62.) Turning to the statutory language, the EFAA provides that “at the election of the person alleging conduct constituting a sexual harassment dispute … no pre[-]dispute arbitration agreement … shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to … the sexual harassment dispute.” (9 U.S.C. § 402(a).) The key word here is “case.” Vallejo argues that the term “case” unambiguously refers to the legal proceeding as a whole. Accordingly, if a plaintiff’s lawsuit contains at least one claim within the scope of the EFAA, Vallejo contends the arbitration agreement is unenforceable as to all claims asserted in the lawsuit. In contrast, defendants argue that the term “case” does not “invariably encompass an entire legal proceeding, but may [instead] denote a single specific claim or dispute.” In defendants’ view, the EFAA should be construed to exempt claims that allege sexual harassment or that relate to the sexual harassment dispute but not claims that are unrelated to the purported sexual harassment. Vallejo has the better argument. To date, every published California case to address this issue has found that the EFAA unambiguously applies to the entire “case,” not just the claims relating to the sexual harassment dispute. (See Second Street, supra, 105 Cal.App.5th at pp. 573-577; Liu, supra, 105 Cal.App.5th at pp. 802-806; Casey, supra, 108 Cal.App.5th at p. 588; Quilala, supra, 117 Cal.App.5th at pp. 88-90.) Second Street, supra, 105 Cal.App.5th 552, is instructive. In Second Street, the plaintiff’s complaint alleged 11 causes of action, which included a sexual harassment claim and a variety of wage-and-hour violations. (Id. at p. 559.) When the defendant’s employer moved to compel arbitration, citing an arbitration provision in the employee 16 handbook, the trial court denied the motion. (Ibid.) The trial court concluded that the EFAA rendered the arbitration agreement unenforceable as to all of plaintiff’s claims. (Second Street, at p. 559.) On appeal, the defendant argued that even if the arbitration provision is unenforceable as to the sexual harassment claims, plaintiff’s other claims should be ordered to arbitration. (Second Street, supra, 105 Cal.App.5th at p. 573.) The appellate court disagreed. (Id. at pp. 573-577.) Adopting the “well-reasoned analysis” of the federal district court in Johnson v. Everyrealm, Inc. (S.D.N.Y. 2023) 657 F. Supp.3d 535, 539 (Johnson), the appellate court concluded that Congress’s choice of the term “case” shows the EFAA applies to the “legal proceeding as an undivided whole” and “does not differentiate among causes of action within it.” (Second Street, at p. 574.) The court found additional support for its interpretation in the EFAA provision setting out the statute’s effective date, which provides that the EFAA “shall apply with respect to any dispute or claim that arises or accrues on or after the date of enactment of this Act.” (Second Street, supra, 105 Cal.App.5th at pp. 574-575, 577; see Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2022, Pub.L. No. 117-90, § 3 (Mar. 3, 2022) 136 Stat. 26, 28, italics added.) The court found that by using the term “claim” in a separate provision of the same act, Congress demonstrated that it understood the distinction between “case” and “claim,” and this supports a presumption that Congress intended the terms to mean different things. (Second Street, at pp. 574-575, 577.) Thus, for these reasons, the court concluded that where a claim in a case alleges conduct constituting a sexual harassment dispute, the EFAA makes an arbitration agreement unenforceable with respect to the entire case, not merely the discrete claims that allege or relate to the sexual harassment dispute. (Second Street, at pp. 573-574, 577; accord, Liu, supra, 105 Cal.App.5th at pp. 802-805; Casey, supra, 108 Cal.App.5th at p. 588; Quilala, supra, 117 Cal.App.5th at pp. 88-90.)

17 An overwhelming majority of federal decisions to address this issue have reached the same conclusion. (See, e.g., Bruce, supra, 168 F.4th at pp. 382-386; Sheehan v. Everstory Partners, supra, 804 F. Supp.3d at p. 518; Kelly, supra, 804 F. Supp.3d at pp. 466-468; Diaz-Roa, supra, 757 F. Supp.3d at pp. 532-533; Clay v. Fgo Logistics, Inc. (D.Conn. 2024) 751 F. Supp.3d 3, 18-20; Johnson, supra, 657 F. Supp.3d at pp. 558-561; accord, Polen v. API Group Life Safety USA, LLC (D.Or. Nov. 21, 2025, No. 3:25-cv- 01196-SI) 2025 U.S. Dist. LEXIS 229376, at p. *11, fn. 3; see also Newton v. LVMH Moet Hennessy Louis Vuitton Inc. (S.D.N.Y. 2024) 746 F. Supp.3d 135, 150; Rix v. Polsinelli PC (D.D.C. Sep. 18, 2025, Civil Action No. 23-03062 (AHA)) 2025 U.S. Dist. LEXIS 183652, at p. *22.)4 We find these cases sound and well-reasoned and therefore align ourselves with the majority of other courts in concluding that when the EFAA applies, it renders an arbitration agreement unenforceable with respect to the plaintiff’s entire case. Defendants contend that these cases were wrongly decided and should not be followed. Defendants argue that the term “ ‘case’ ” may have different meanings in different contexts and may be construed to mean “ ‘controversy,’ ” “ ‘dispute,’ ” or “claim.” For support, defendants rely on United States Supreme Court decisions interpreting the “Case or Controversy Clause” of the federal Constitution (art. III, § 2, cl. 1). However, we do not believe Supreme Court cases defining what constitutes a “case or controversy” for purposes of the jurisdictional limits of the U.S. Constitution has any bearing on, or creates any “ambiguity” about, the meaning of the term “case” as it is used in section 402 of the EFAA.

4 Decisions of lower federal courts are not binding on us, even on questions of federal law, but they are persuasive authority. (Barriga v. 99 Cents Only Stores LLC (2020) 51 Cal.App.5th 299, 316, fn. 8; Gervase v. Superior Court (1995) 31 Cal.App.4th 1218, 1228-1229.)

18 Defendants’ reliance on Black’s Law Dictionary is similarly unavailing. “A basic principle of statutory construction provides that where words in a statute are not defined, they ‘must be given their ordinary meaning’ ” at the time Congress enacted the statute. (United States v. Granderson (1994) 511 U.S. 39, 71; New Prime Inc. v. Oliveira (2019) 586 U.S. 105, 113.) As the majority of courts have found, the ordinary and common sense meaning of the word “case” is “a suit or action in law or equity.” (Merriam- Webster Dict. Online (2026) <https://unabridged.merriam- webster.com/unabridged/case>, [as of Sept. 21, 2026], archived at <https://perma.cc/52MV-J3C6>; see, e.g., Second Street, supra, 105 Cal.App.5th at pp. 574, 577; Liu, supra, 105 Cal.App.5th at pp. 802-803; Molchanoff v. SOLV Energy, LLC (S.D. Cal. Mar. 1, 2024, No. 23cv653-LL-DEB) 2024 U.S. Dist. LEXIS 36400, at p. *12; see also Stellar J Corp. v. Smith & Loveless, Inc. (9th Cir. 2014) 580 F.App’x 604, 608; City of St. Louis v. CHS TX, Inc. (E.D. Mo. Mar. 19, 2024, No. 4:23-cv-00987- SRC) 2024 U.S. Dist. LEXIS 48235, at pp. *4-5.) Defendants also seek to rely on the FAA’s general policy favoring arbitration. However, as the federal district court held in Johnson, the EFAA directly amended the FAA to bar arbitration in cases relating to sexual assault or sexual harassment disputes. (Johnson, supra, 657 F.Supp.3d at p. 560.) That establishes Congress’s “intent to override” the FAA’s background policy favoring arbitration. (Johnson, at p. 560; see Hansbrough v. Marshall Dennehey, P.C. (Ohio Ct.App. 2026) 281 N.E. 3d 352.) We acknowledge that in Mera v. SA Hospitality Group, LLC (S.D.N.Y. 2023) 675 F. Supp.3d 442, a federal magistrate judge held that “an arbitration agreement executed by an individual alleging conduct constituting a sexual harassment dispute is unenforceable only to the extent that the case filed by such individual ‘relates to’ the sexual harassment dispute.” (Id. at p. 447; see Miles v. Greystar Management Services, L.P. (D.Nev. July 17, 2025, No. 2:25-cv-00262-APG-EJY) 2025 U.S. Dist. LEXIS 137283, at pp. *8-9 [finding Mera persuasive].) However, the Mera decision has been 19 repeatedly criticized because “[t]he EFAA demands only that the ‘case’ relate to a sexual harassment dispute, not that each individual claim … do so.” (Kelly, supra, 804 F. Supp.3d at p. 465; Quilala, supra, 117 Cal.App.5th at pp. 89-90; see Liu, supra, 105 Cal.App.5th at pp. 805-806; see also Bruce, supra, 168 F.4th at p. 383 [a case that contains a plausibly alleged claim of sexual harassment “relates to” a sexual harassment dispute].) And the magistrate’s decision in Mera was later overturned by the district court, which followed the majority rule in concluding that the EFAA renders the arbitration agreement invalid and unenforceable with respect to the plaintiff’s entire case. (Mera v. SA. Hospitality Group, LLC (S.D.N.Y. Nov. 14, 2025) 2025 U.S. Dist. LEXIS 225349, at p. *26.) Defendants additionally argue that the Legislative history of the EFAA “belies the notion that the EFAA bars arbitration of claims unrelated to sexual harassment or assault.” However, under federal rules of statutory interpretation, where the words of a statute are unambiguous, the sole function of the courts is to enforce the statute according to its terms. (Lamie v. United States Trustee (2004) 540 U.S. 526, 534; United States v. Quarrell, (10th Cir. 2002) 310 F.3d 664, at p. 669.) Legislative history may not be used to create ambiguity in the statutory language. (Bostock v. Clayton County, Georgia (2020) 590 U.S. 644, 673-674; S.H. ex rel. Durrell v. Lower Merion School Dist. (3d Cir. 2013) 729 F.3d 248, 259; United States v. Mount Sinai Medical Center of Florida, Inc. (11th Cir. 2007) 486 F.3d 1248, 1252; see Qun Lin v. Mukasey (1st Cir. 2008) 521 F.3d 22, 27, fn. 3 [court cannot elevate legislative history over the statute as enacted].)

20 In sum, we conclude that the EFAA’s language is clear and unambiguous on its face that the arbitration agreement is not enforceable vis-à-vis any of the claims alleged in Vallejo’s complaint. Accordingly, the trial court did not err in denying defendants’ motion to compel arbitration.

DISPOSITION The order denying the motion to compel arbitration is affirmed. Vallejo is entitled to her costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

\s\ KRAUSE, J.

We concur:

\s\ MAURO, Acting P. J.

\s\ BOULWARE EURIE, J.