Filed 8/26/26 Twellman v. Superior Court CA4/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
SHELLY TWELLMAN,
Petitioner, G066196
v. (Case No. 30-2025-01463951)
THE SUPERIOR COURT OF OPINION
ORANGE COUNTY,
Respondent;
LUXOTTICA OF AMERICA, INC.,
et al.,
Real Parties in Interest.
ORIGINAL PROCEEDING; petition for writ of mandate;
Theodore R. Howard, Judge. Petition granted.
Shegerian & Associates, Carney R. Shegerian, Bryan Kirsh, and
Neil Nabavi for Petitioner.
No appearance for Respondent.
Ogletree, Deakins, Nash, Smoak & Stewart, Jack S. Sholkoff,
Alok K. Gupta, Danielle R. Goodman, S. Nadine Agharezaei and Nikolas T.
Dkjordjevski, for Real Parties in Interest.
* * *
After resigning from her job, Shelly Twellman filed a complaint
alleging various causes of action, including sex and gender harassment,
against numerous defendants, including her former employer and supervisor,
Luxottica of America Inc., Luxottica Retail, North America, Inc., Luxottica
Sun Corp., Luxottica U.S. Holdings Corp., Oakley, Inc., and Luca Di Camillo
(collectively Defendants). Defendants moved to compel arbitration of
Twellman’s claims, arguing the claims were subject to arbitration pursuant
to two arbitration agreements. Twellman had executed the first arbitration
agreement when she began working in 2021 and the second agreement on
March 20, 2023, shortly after she complained to Human Resources (HR)
about harassment.
Twellman opposed the motion to compel arbitration pursuant to
the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act
of 2021 (9 U.S.C. §§ 401–402; EFAA), which generally voids predispute
arbitration agreements in cases involving sexual assault and harassment.
The trial court concluded the EFAA did not apply to the second arbitration
agreement because the harassment dispute occurred when she complained to
HR and was met with skepticism or “wrongful interrogation.” Thus, the
second agreement was a postdispute arbitration agreement, not subject to the
EFAA. Twellman filed a petition for a writ of mandate, arguing the court
improperly determined she executed the second arbitration agreement after
there was a dispute between her and her employer about harassment. As
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discussed further below, we conclude no dispute had arisen because HR’s
skepticism or interrogation did not constitute an express or implied
disagreement with Twellman’s harassment claim. The dispute did not arise
until after Twellman executed the second arbitration agreement.
Alternatively, a sexual harassment dispute arose on March 30, 2023, and
that dispute subjected the entire case to EFAA. Accordingly, we conclude
relief is warranted and grant the petition.
PROCEDURAL HISTORY
I.
COMPLAINT
On February 18, 2025, Twellman filed a complaint against
Defendants, alleging alleged causes of action for: (1) discrimination, (2)
harassment, (3) retaliation, (4) failure to prevent discrimination, harassment
or retaliation, (5) negligent hiring, supervision, and retention, (6) wrongful
constructive termination, (7) whistleblower retaliation, and (8) intentional
infliction of emotional distress. The complaint alleged Twellman began
working for Defendants in April 2021. In June 2022, after she expressed
interest in and applied for a managerial position, one of her supervisors
(Luca Di Camillo) made comments about her sex and gender, including
stating that she “should focus on settling down and starting a family rather
than pursuing career advancement.” Her direct supervisor (Miguel Cordero-
Suarez) made repeated comments about her “appearance and behavior, such
as criticizing the noise her nails made while on the phone.” On February 21,
2023, Twellman met with an HR manager and detailed the offensive and
discriminatory comments and behaviors she had been subjected to by Di
Camillo and Cordero-Suarez. However, “HR did not take any immediate
action to address her concerns in violation of their own policies and, instead,
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informed Di Camillo about her complaint, which only escalated the situation
to her detriment.”
On March 10, 2023, Twellman had a second meeting with HR. At
this meeting, “[i]nstead of discussing the offensive and discriminatory
treatment that Twellman had reported, the focus shifted to wrongfully
interrogating Twellman’s motivations and need for ‘evidence’ to substantiate
her claims. When Twellman asked for a written explanation regarding why
she had not been selected for the promotion, she was initially denied.” At her
third meeting with HR on March 29, 2023, Twellman was provided “vague
feedback” that she was denied a promotion because she lacked “Six Sigma
experience.” Subsequently, on March 30, 2023, she received a “retaliatory
performance review,” which barred her from applying for any new position for
a full year. She also learned the position she applied for had been given to a
male colleague.
The complaint asserted: “The cumulative effect of these
experiences, [including] being overlooked for promotion, receiving a poor
performance review, and dealing with persistent and offense comments about
her sex/gender, created an untenable work environment” and adversely
impacted her mental health. “Defendants’ latest tactics interfered with [her]
ability to perform daily tasks” and “obstructed [her] from carrying out her job
duties.” “[A]s a result, [she] submitted a forced resignation notice with
Defendants to protect her health and well-being on or about June 22, 2023.”
Defendants filed an answer, generally denying the allegations.
The answer also raised numerous affirmative defenses, including that
Twellman was contractually obligated to arbitrate her claims pursuant to an
enforceable binding arbitration agreement.
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II.
MOTION TO COMPEL ARBITRATION
On June 20, 2025, Defendants moved to compel arbitration,
arguing Twellman’s claims were subject to arbitration pursuant to two
arbitration agreements. Twellman electronically executed the first
arbitration agreement on March 18, 2021. She executed the second
arbitration agreement on or about March 20, 2023, when the Employee
Guide, which contained the arbitration agreement, was updated. Defendants
argued both arbitration agreements were valid and enforceable.
Twellman opposed the motion to compel arbitration on two
grounds: (1) the EFAA voided the arbitration agreements, and (2) the
arbitration agreements are procedurally and substantively unconscionable.
Twellman argued that all her claims are subject to the EFAA because the
harassment claim is inextricably intertwined with the discrimination and
retaliation claims. As to unconscionability, Twellman argued the arbitration
agreements were contracts of adhesion and constituted “an illegal scheme
undertaken in a systematic effort to impose arbitration on the weaker party
not simply as an alternative to litigation, but to secure a forum that works to
the stronger party’s advantage.”
In reply, Defendants argued that assuming the EFAA applies, it
would not void the second arbitration agreement, which Twellman signed
after her dispute with Defendants arose. They argued the dispute occurred on
February 21, 2023 when Twellman first raised her concerns to HR, but HR
was skeptical and did not take any action to address the issue. Defendants
further argued the arbitration agreements are not substantively or
procedurally unconscionable.
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The trial court granted the motion to compel arbitration and
dismissed Twellman’s complaint. It first determined Defendants met “their
initial burden of showing valid agreements to arbitration which cover the
issues.” It then concluded Twellman failed to establish a defense to the
arbitration agreements. First, the EFAA does not prohibit arbitration
because the EFAA only applied to the first arbitration agreement, not the
second arbitration agreement. The court found the sexual harassment
disputes occurred when Twellman went to HR and made complaints on
February 21, 2023 and March 10, 2023, “but was met with skepticism or she
was wrongfully interrogated. . . . [Twellman] thereafter signed Agreement 2
on 3/20/23. . . As the allegations of sexual harassment [disputes] occurred
before Agreement 2 was signed, the EFAA does not apply to voiding
Agreement 2. The only other dispute with HR was an alleged retaliatory
action, which is not specifically based on sexual harassment, but rather the
reporting to HR.” Second, the court concluded that although Twellman
showed procedural unconscionability, she failed to show substantive
unconscionability. Thus, the arbitration agreements were enforceable.
DISCUSSION
I.
STANDARD OF REVIEW
Twellman’s petition seeks relief from the trial court’s order
compelling arbitration based on the EFAA. “There is no uniform standard of
review for evaluating an order denying a motion to compel arbitration.
[Citation.] If the court’s order is based on a decision of fact, then we adopt a
substantial evidence standard. [Citations.] Alternatively, if the court’s
[ruling] rests solely on a decision of law, then a de novo standard of review is
employed.” (Robertson v. Health Net of California, Inc. (2005) 132
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Cal.App.4th 1419, 1425.) Here, the court’s ruling concerned when a dispute
arises under the EFAA. To the extent the court’s ruling involves interpreting
the term “dispute” in the EFAA, it is subject to de novo review. (See Kader v.
Southern California Medical Center, Inc. (2024) 99 Cal.App.5th 214, 221
(Kader) [“We review statutory interpretation issues de novo”].) Additionally,
the trial court based its decision completely on allegations in the complaint.
Accordingly, we employ a de novo review. (See Serpa v. California Surety
Investigations, Inc. (2013) 215 Cal.App.4th 695, 702 [“Absent conflicting
extrinsic evidence, the validity of an arbitration clause, . . . is a question of
law subject to de novo review”]; Parada v. Superior Court (2009) 176
Cal.App.4th 1554, 1567 [“We review de novo a trial court’s determination of
the validity of an agreement to arbitrate when the evidence presented to the
trial court was undisputed”].)
II.
EFAA
The EFAA, enacted on March 3, 2022, provides:
“Notwithstanding any other provision of this title, at the election
of the person alleging conduct constituting a sexual harassment dispute or
sexual assault dispute, or the named representative of a class or in a
collective action alleging such conduct, 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. § 402 (a).)
As the Kader court concluded, under the EFAA, “the date that a
dispute has arisen for purposes of the Act is a fact-specific inquiry in each
case, but a dispute does not arise solely from the alleged sexual conduct. A
dispute arises when one party asserts a right, claim, or demand, and the
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other side expresses disagreement or takes an adversarial posture. [Citation.]
In other words, ‘[a] dispute cannot arise until both sides have expressed their
disagreement, either through words or actions.’ [Citation.] Until there is a
conflict or disagreement, there is nothing to resolve in litigation.” (Kader,
supra, 99 Cal.5th at pp. 222-223; see Cornelius v. CVS Pharmacy Inc. (3d Cir.
2025) 133 F.4th 240, 247 [“In our view, a ‘dispute . . . arises’ when an
employee registers disagreement—through either an internal complaint,
external complaint, or otherwise—with his or her employer, and the employer
expressly or constructively opposes that position”].)
Here, the trial court concluded the dispute arose when Twellman
complained to HR on February 21, 2023 and March 10, 2023, “‘but was met
with skepticism or she was wrongfully interrogated.’” We disagree. According
to the complaint, Twellman met with HR three times concerning her
harassment claims. At the first meeting on February 21, 2023, she was met
with “skepticism.” But a person who is initially skeptical of a claim may end
up agreeing with the claim following further investigation. At this point,
there was no conflict or disagreement between the parties to resolve. (See,
e.g., Famuyide v. Chipotle Mexican Grill, Inc. (8th Cir. 2024) 111 F.4th 895,
898 [noting that a letter from plaintiff’s counsel informing defendant
company that plaintiff was considering legal action does not constitute a
dispute because “[s]ometimes a dispute ensues after this type of
correspondence. But sometimes it does not, either because the client decides
not to proceed further after investigation or because the communications
result in an amicable resolution between the correspondents”].)
The complaint further alleges that Twellman met with HR a
second time on March 10, 2023. At this meeting, “[i]nstead of discussing the
offensive and discriminatory treatment that Twellman had reported, [HR’s]
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focus shifted to wrongfully interrogating [her] motivations and need for
‘evidence’ to substantiate her claims.” These allegations merely indicate HR’s
skepticism about Twellman’s original harassment claim continued or even
increased. It does not establish HR had taken an adversarial position on
Twellman’s claim. For example, HR did not ignore her claim, which would
indicate it felt her claim lacked even the minimal merit needed to trigger an
investigation. (See, e.g., Combs v. Netflix, Inc. (C.D.Cal. Apr. 16, 2025, No.
2:24-CV-09037-MRA-MAA) 2025 U.S. Dist. Lexis 94527) [“Defendant
effectively expressed disagreement with Plaintiff's complaints through
silence—that is, it took a position adverse to Plaintiff by not addressing her
concerns”].) Rather, HR proactively asked for further information. Nor did
HR provide a response to the claim, such as stating the denial of a promotion
was not due to harassment but a result of Twellman’s lack of “Sigma Six”
experience.
In sum, we conclude the allegations in the complaint do not
establish, as a matter of law, that a dispute had risen between the parties
before March 20, 2023, when Twellman signed the second arbitration
agreement.
Even if a dispute had arisen by March 10, 2023, the undisputed
facts establish a second, separate dispute arose on March 30, 2023, when
Twellman received a retaliatory performance review. As alleged in the
complaint, the performance review was retaliation for reporting
discrimination and harassment to HR. Thus, the retaliation created a sexual
harassment dispute. (See Liu v. Miniso Depot CA, Inc. (2024) 105
Cal.App.5th 791, 804, fn. 5 [noting “cases have recognized that a claim
alleging retaliation for complaining about sexual harassment is a ‘“sexual
harassment dispute””’].) This claim is sufficient to subject the entire case to
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the EFAA. (See id. at p. 796 [“[T]he EFAA exempts a plaintiff’s entire case
from arbitration where the plaintiff asserts at least one sexual harassment
claim subject to the act”]; Johnson v. Everyrealm, Inc. (S.D.N.Y. 2023) 657
F.Supp.3d 535, 559 [“[T]he text of [9 U.S.C.] § 402(a) makes clear that its
invalidation of an arbitration agreement extends to the entirety of the case
relating to the sexual harassment dispute, not merely the discrete claims in
that case that themselves either allege such harassment or relate to a sexual
harassment dispute (for example, a claim of unlawful retaliation for a report
of sexual harassment)”].) In sum, the trial court erred in granting the motion
to compel arbitration because the EFAA applies to both arbitration
agreements, and Twellman elected to void those agreements pursuant to the
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EFAA.
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Because we grant the petition for writ of mandate on the basis
of the EFAA, we need not address Twellman’s alternative argument that the
arbitration agreements were unenforceable as unconscionable.
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DISPOSITION
The petition is granted. The superior court is directed to vacate
its order granting Defendants’ motion to compel arbitration and to enter an
order denying the motion to compel arbitration for the reasons set forth in
this opinion. The stay previously issued by this court will dissolve upon
issuance of the remittitur. (Cal. Rules of Court, rules 8.490(d), 8.272.)
Petitioner shall recover her costs on appeal.
DELANEY, ACTING P. J.
WE CONCUR:
GOODING, J.
SCOTT, J.
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