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C.A. Affirms Arbitration Denial but Won’t Address Assault on One of Judge’s Reasons
Then-Judge Karlan Set Forth Two Bases; Opinion Finds Attack on One Basis Forfeited, Stops Inquiry There
By a MetNews Staff Writer
The Court of Appeal for this district has affirmed an order denying a motion to compel arbitration of a model’s lawsuit against an agency in which she alleges being tricked into going to London, purportedly for a shooting session, when it was actually intended that she become a victim of human trafficking.
In so deciding, Div. Seven declined, in its unpublished opinion, filed Thursday, to discuss the correctness of the first of the trial court’s two bases for its order: that a written agreement between the model and the agency to arbitrate any dispute it did not contemplate, and therefore did not encompass, the sort of conduct set forth in the complaint.
Acting Presiding Justice Lamar Baker took the stance that because the appellant’s assault on the second basis entailed a contention that was not put forth below, and was thereby forfeited, there was no need to discuss the first basis.
Then-Los Angeles Superior Court Judge Craig D. Karlan, now a private judge, on Jan. 28, 2022, denied a motion to compel arbitration brought by defendant Ford Models, Inc. (“FMI”), an outfit based in New York. On Aug. 22, 2022, he denied a like motion by defendant Gerald Banks (also known as Guerman Aliev), whose separate appeal is pending.
In February 2017, Banks, at that time Ford’s CEO, piloted a private plane to London, with the plaintiff, identified as “Jane Doe,” aboard. The complaint says that Doe, then 21, “had graced the pages of several fashion magazines and advertising campaigns of prominent designers.”
Also on the aircraft were another model and defendant Jordan Doner, “a photographer, friend and/or business partner specially employed by FMI.” The pleading alleges that once in London, Doe realized that no photo shoot was in the works.
It says that Banks and Doner had, through events that are detailed, placed her “in fear for her well-being, dependent on Defendants and under their physical and psychological control and demands for personal gratification” and had put her in “fear of being trafficked.”
She made her own arrangements to return to Los Angeles.
Causes of Action
The plaintiff sued under Civil Code §52.5, which provides broad relief based on human-trafficking efforts, and the under the Unfair Competition Law.
FMI is defending based on the agreement which Doe had signed saying that “[i]f a dispute arises out of or relates to this Agreement, or the breach thereof, and if the dispute cannot be settled through negotiation,” the parties could agree to mediation. The agreement continues:
“If the dispute cannot be resolved within three (3) hours of mediation, any dispute, controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration….”
Karlan’s First Basis
Karlan said in his Jan. 28, 2022 order:
“Plaintiff argues the agreement does not govern the alleged conduct in this action because the arbitration provision is narrowly tailored to apply only to claims arising out of the contract.
“Ford Models counters that the arbitration provision is expansive and applies to all claims arising out of the agreement. The Court, however, is not convinced a party agrees to arbitrate claims of sexual misconduct or human trafficking when she enters into a modeling agreement.”
The judge continued:
“The Court simply cannot conclude that sexual misconduct and/or human trafficking arises from an agreement to model. Such a conclusion would require the Court to conclude that any individual entering into an agreement with Ford Models should assume their modeling work may give rise to such conduct, and the Court declines to come to such a conclusion in the absence of specific language in the contract so stating.”
Second Basis
At that point, Banks had not yet moved for an order compelling arbitration.
Karlan said that Banks and Doner could not be forced into arbitration, not having consented to it, and declared:
“It follows that splitting this action between the superior court and arbitration may defeat the purposes of the arbitration statute (Code Civ. Proc., § 1281.2), as it would duplicate efforts and increase costs where the claims against Ford Models are intertwined with the claims against Defendants Doner and Banks.”
Sec. 1281.2(c) provides that a motion to compel arbitration may be denied if “[a] party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact.”
(In denying Banks’s subsequent motion to compel, Karlan pointed out that Doner had not sought mediation.)
Contention on Appeal
In its opening brief, FMI recited that Karlan had made two findings:
“(1) that the Arbitration Clause did not encompass claims relating to sexual misconduct and/or human trafficking and (2) that a risk of inconsistent verdicts arose from the fact that the two other defendants in this action, Jordan Doner and Gerald Banks, did not consent to arbitration.” In discussing the first finding, the brief says, though addressing the matter cursorily:
“Here, the arbitration clause contains precisely the type of broad language—i.e., applying to ‘any dispute, controversy or claim arising out of or relating to this Agreement’—that courts have construed liberally and found sufficiently broad to encompass contract and tort claims….Respondent’s claims allegedly arise out of a modeling job and Appellant’s alleged representation about what that job was supposed to entail, all of which are governed by the Agreement.”
It notes that Doe alleges:
“There were never any pre-shoot personnel or preparations or any ‘sportswear’ modeling shoot...in the manner in which FMI had represented to Plaintiff.”
The brief adds that “[s]he alleges that it is those alleged representations that ‘induce[d]’ her ‘to be placed in a vulnerable position....”
Applicability of FAA
FMI also argued that Code of Civil Procedure §1281.2 is a part of the California Arbitration Act and that, in light of the multi-state scope of the agreement between Doe and it, the Federal Arbitration Act (“FAA”) applies, and that it has no provision akin to §1281.2(c).
In Thursday’s opinion, Baker said:
“The fatal problem for Ford, however, is that it never cited the FAA or urged its applicability in the trial court. Instead, Ford relied solely on California law in moving to compel arbitration, arguing arbitration was compulsory under [Code of Civil Procedure] sections 1281.2 and 1281.4. The failure to argue the FAA below forfeits the point on appeal.”
Matter Not Addressed
He added:
“Ford’s appellate briefing does not grapple with the forfeiture problem. Instead, the best Ford musters is to assert this court reviews a trial court’s determination of a motion to compel arbitration de novo. True, but irrelevant. The forfeiture doctrine still applies…, and we see no good grounds to exercise our discretion to excuse the forfeiture. In fact, there are good reasons not to: Ford was not just silent in the trial court—it affirmatively urged the CAA applied—and Ford presents us with no argument as to why we should reach the forfeited issue.
“Because Ford has forfeited the only argument it makes in support of the contention that the trial court erred in relying on section 1281.2, subdivision (c) to deny the motion to compel arbitration, we shall affirm denial of the motion on this ground. We need not address any other issues Ford raises.”
The case is Doe v. Ford Models, B318923.
Attorneys on appeal were Matthew Oster and Michael Sigall Wolf of the West Los Angeles firm of Wolf, Rifkin, Shapiro, Schulman & Rabkin, for Ford Models, and Alan I. Schimmel, Michael W. Parks, and Arya Rhodes of the Sherman Oaks firm of Schimmel & Parks for Doe.
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