Rosette Pambakian v. Gregory Blatt

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 24, 2021
• Docket: 20-55076
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 24 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ROSETTE PAMBAKIAN, No. 20-55076

Plaintiff-Appellant, D.C. No. 2:19-cv-07053-MWF-FFM v.

GREGORY BLATT; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding

Argued and Submitted August 12, 2021 San Francisco, California

Before: SILER,** CHRISTEN, and FORREST, Circuit Judges.

Plaintiff-Appellant Rosette Pambakian appeals a district court decision

compelling arbitration of her claims. In August 2019, Pambakian sued Gregory

Blatt, IAC/Interactive Corp., and Match Group, Inc., asserting that Blatt sexually

assaulted her after the 2016 Tinder, Inc. holiday party. Blatt and the companies

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. removed the case to the Central District of California and moved to compel

arbitration under an arbitration agreement that Pambakian signed in January 2018.

The district court granted the motion to compel. We have jurisdiction under 28

U.S.C. § 1291, and we review the district court’s decision de novo. Cape Flattery

Ltd. v. Titan Mar., LLC, 647 F.3d 914, 917 (9th Cir. 2011). We affirm.

1. Validity and Enforceability. We apply California law to determine

whether the arbitration agreement is valid and enforceable. First Options of Chi.,

Inc. v. Kaplan, 514 U.S. 938, 944 (1995). Pambakian argues that there was no

“meeting of the minds” because the agreement does not specify an ADR provider or

which rules apply in arbitration. This argument fails because “the validity of an

arbitration agreement is not contingent upon the agreement identifying a specific

arbitrator or specifying a particular method for appointing an arbitrator” and here the

agreement “clearly evidences the parties’ intention to submit their disputes to

arbitration.” HM DG, Inc. v. Amini, 219 Cal. App. 4th 1100, 1108, 1111 (2013).

The agreement also is not unconscionable because, even assuming a low level

of procedural unconscionability given that it was presented on a take-it-or-leave-it

basis, see Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1261–62 (9th Cir. 2017)

(explaining that the “adhesive nature of a contract . . . [indicates] a low degree of

procedural unconscionability”), there is no substantive unconscionability as the

agreement requires both parties to submit the same disputes to arbitration via the

2 same process. Pokorny v. Quixtar, Inc., 601 F.3d 987, 997–98 (9th Cir. 2010)

(“Agreements to arbitrate must contain at least ‘a modicum of bilaterality’ to avoid

unconscionability.”).

2. Scope. Pambakian argues that her claims do not fall within the

arbitration agreement’s scope because the agreement is not retroactive, and her

claims are not closely related to her employment. Pambakian’s retroactivity

argument fails under Franco v. Greystone Ridge Condominium, 39 Cal. App. 5th

221, 227 (2019), because the express scope of her arbitration agreement is broad and

not temporally limited. As in Franco, the arbitration agreement covers “all claims,”

connected in any way with her employment, including claims that arose pre-hiring.

Id. at 230.

Moreover, we conclude all Pambakian’s claims “involv[e] or . . . concern[]”

her employment. Pambakian’s retaliation and wrongful termination claims against

IAC and Match Group necessarily relate to her employment; had those companies

not employed her, they could not have taken the wrongful conduct she alleged. Her

assault-related claims against Blatt also fall within the scope of the arbitration

agreement, in part because Pambakian alleged that she was assaulted by her boss

after a work-sponsored holiday party in a work-provided hotel room, and because

she alleged that “Blatt objectified women in his employ and spread a misogynistic

work culture, which promoted sexual harassment and assault.” Because

3 Pambakian’s agreement uses broader language than that in Doe v. Princess Cruise

Lines, Ltd., and the conduct at issue here is more closely connected with

Pambakian’s employment than the circumstances presented in that case, we

conclude that her assault-related claims fall within the arbitration agreement. See

657 F.3d 1204, 1208 (11th Cir. 2011). Even if we decided the contract was

ambiguous on these issues, we would still compel arbitration because we “resolv[e]

ambiguities as to the scope of arbitration in favor of arbitration.” Goldman, Sachs &

Co. v. City of Reno, 747 F.3d 733, 742 (9th Cir. 2014) (internal quotations and

citations omitted).

3. Breach. Finally, Pambakian argues that Blatt cannot seek to enforce the

arbitration agreement because he breached the agreement. We disagree. Blatt did not

materially breach the arbitration agreement by filing a defamation complaint against

Pambakian in federal court—in a separate proceeding—before moving to compel

arbitration in this action. See Brown v. Grimes, 192 Cal. App. 4th 265, 278 (2011)

(“Whether a partial breach of a contract is material depends on the importance or

seriousness thereof and the probability of the injured party getting substantial

performance.” (quotation marks and citation omitted)); see also ATSA of Cal., Inc.

v. Cont’l Ins., 702 F.2d 172, 175 (9th Cir. 1983) (“[U]nder the federal policy

favoring arbitration, a party does not waive arbitration merely by engaging in action

inconsistent with an arbitration provision.”).

4 The district court’s motion to compel arbitration is AFFIRMED.1

1 Defendants’ Request for Judicial Notice [Dkt. no. 36] is denied as to Exhibit A and granted as to Exhibit B.