Filed 8/26/26 Twellman v. Superior Court CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
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.
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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 1 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.