Doe v. Ford Models CA2/5 ( 2023 )

Filed 8/3/23 Doe v. Ford Models CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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
SECOND APPELLATE DISTRICT
DIVISION FIVE
JANE DOE, B318923
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. 21STCV01747)
FORD MODELS, INC., A NEW
YORK CORPORATION,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Craig D. Karlan, Judge. Affirmed.
Wolf, Rifkin, Shapiro, Schulman & Rabkin, Matthew Oster,
and Michael Sigall for Defendant and Appellant.
Schimmel & Parks, Alan I. Schimmel, Michael W. Parks,
and Arya Rhodes for Plaintiff and Respondent.
This appeal concerns a motion to compel arbitration filed
by defendant and appellant Ford Models, Inc. (Ford). The trial
court denied Ford’s motion to compel plaintiff and respondent
Jane Doe (Doe) to arbitrate her sexual assault-related claims
against Ford for two independently sufficient reasons, one of
which is a provision of the California Arbitration Act (CAA) that
permits a trial court to deny a motion to compel arbitration
where pending litigation with a third party would defeat the
purposes of arbitration and risk inconsistent judgments. Ford
argues this reason is flawed because the Federal Arbitration Act
(FAA), not the CAA, governs the arbitration agreement. Ford,
however, never made that argument below—indeed, it never
invoked the FAA at all—and the forfeiture of that point precludes
reversal on appeal.
I. BACKGROUND
A. The Facts as Alleged in the Complaint
In February 2017, Ford offered Doe, who was then a model
living in Los Angeles, a professional sportswear modeling job in
Europe. Doe flew to New York and then boarded a private plane
headed to London with Jordan Doner (Doner), a photographer,
Gerald Banks (Banks), then CEO of Ford, and another model.
Contrary to Ford’s representations, the ensuing events did not
involve any professional photo shoots.
During the flight, Doe fell asleep and woke to Doner
rubbing her thigh. Doner later told Doe he wanted to photograph
her in a jacket and a sheer thong. Doe acquiesced because she
was trapped and scared.
The situation did not improve after Doe and the others
arrived in London. Doner wanted to photograph Doe wearing a
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white dress under running water in a shower, and Doner and
Banks wanted to take Doe and the other model to a nightclub and
photograph them there. Doner requested Doe and the other
model accompany the men on what appeared to be dates. Doe
also overheard Doner and Banks making sexual comments about
other models and discussing how to get other women on trips
with them. She became concerned she was being targeted for
sex.
Doner instructed Doe to tell her agents that she wanted to
go to Paris with him. Banks wanted to watch the Superbowl in
Paris but he did not want to pay Doe’s agency her day rate for
another day. Doe contacted her agents in California and reported
what was happening. When Doe’s agency learned of the
circumstances, they instructed her to leave. Doe made her own
arrangements to return to Los Angeles.
B. The Proceedings Below
Doe filed a complaint against Ford, Doner, and Banks in
January 2021. The complaint alleged two causes of action. First,
Doe alleged Ford, Doner, and Banks violated Civil Code section
52.5 by acting with the intent to obtain forced labor or services or
with the intent to make unwanted sexual advances. She alleged
they knowingly and substantially restricted her personal liberty
through fraud and deceit, made false representations, removed
Doe from California so as to isolate her in a foreign country, and
placed her in fear for her well-being. Second, Doe alleged
defendants engaged in unfair business practices in violation of
Business and Professions Code section 17200: false
imprisonment, trafficking Doe through fraud and deceit,
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misappropriation of her name and likeness, unwanted sexual
touching and duress, and fraud and misrepresentation.
In July 2021, Ford filed a motion to compel arbitration.
The notice of motion and the memorandum of points and
authorities recited that the motion was brought pursuant to Code
of Civil Procedure sections 1281.2 and 1281.4.1 Ford argued that
pursuant to section 1281.2, the court was required to order the
case to arbitration because Doe and Ford were parties to a
contract with an arbitration clause. Ford acknowledged section
1281.2 identifies three circumstances in which arbitration need
not be compelled, but it contended none of these three exceptions
applied. The motion did not mention the FAA.
Ford attached a copy of its contract with Doe to the motion.
The contract, an agency and management agreement, states Doe
engaged Ford as her exclusive agent in Illinois, and as her
exclusive personal manager in the United States, Canada, Brazil,
and France “with respect to advising, counseling, promoting, and
contracting print, runway, fitting, modeling and talent work . . . .”
The agreement also includes the following arbitration provision:
“If a dispute arises out of or relates to this
Agreement, or the breach thereof, and if the dispute
cannot be settled through negotiation, [Doe] and
[Ford] may mutually agree to first try in good faith to
settle the dispute by mediation, by a sole mediator.
[ . . . ] 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
1
Undesignated statutory references that follow are to the
Code of Civil Procedure.
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the breach thereof, shall be settled by arbitration
administered by the American Arbitration
Association under its Commercial Arbitration rules,
and judgment on the award rendered by the
arbitrator(s) may be entered in any court having
jurisdiction thereof. This Agreement shall be
governed by and construed in accordance with the
laws of the State of Illinois, without regard to
principles of conflicts of laws. The fees of arbitration
shall be borne equally by [Doe] and [Ford] and each
party shall pay their own attorneys’ costs and fees.
[Doe] and [Ford] agree that said mediation and/or
arbitration shall be held . . . in Chicago, Illinois. The
jurisdiction of the arbitration tribunal shall be
exclusive regarding said claims and said claims shall
not be tried in any other arbitration tribunal. The
content and result of mediation and/or arbitration
shall be held in confidence by all participants, each of
whom will be bound by an appropriate confidentiality
agreement.”
Doe opposed the motion to compel arbitration and argued,
among other things, that the scope of the arbitration clause did
not extend to Doe’s claims alleging sexual abuse and human
trafficking, the confidentiality provision was illegal and
unenforceable, the contract forced a waiver of Doe’s statutory
rights, and the burdens and costs created by the arbitration
provision were unconscionable.
Ford filed a reply brief which did not invoke or otherwise
mention the FAA.
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The trial court denied the motion to compel arbitration on
two independently sufficient grounds. First, the court concluded
Doe’s claims of sexual misconduct and/or human trafficking did
not arise out of her agreement with Ford regarding modeling
work. Second, and more important for our purposes, the court
concluded compelling arbitration would split the action and thus
defeat the purposes of the arbitration statute—a scenario in
which section 1281.2 states arbitration need not be compelled.
Specifically, the agreement was between Doe and Ford only, not
Doner or Banks. At the time the court decided the motion,
neither Doner nor Banks had moved to compel arbitration, and
the court found Doe’s action against Doner and Banks would thus
continue in superior court if her claims against Ford were sent to
arbitration.2 The trial court further found the claims against the
three defendants were substantially intertwined, such that
litigating in two forums would require the parties to duplicate
their efforts while risking inconsistent outcomes.
II. DISCUSSION
“Under Code of Civil Procedure section 1281.2, subdivision
(c), of the CAA . . . , a court may refuse to compel arbitration if
‘[a] party to the arbitration agreement is also a party to a
pending court action or special proceeding with a third party,
2
In response to a request filed by Doe, we previously took
judicial notice of the docket in this case as of November 8, 2022.
(Evid. Code, § 452, subd. (d)(1).) The docket reflects that after
the court’s ruling on Ford’s motion, Banks filed a motion to
compel arbitration. It also reflects, however, that Doner had not
filed such a motion as of that date.
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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.’ (§ 1281.2(c).)” (Victrola 89, LLC v.
Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 342.)
Ford argues it was error to rely on this provision of the
CAA to refuse to compel arbitration because the agreement
between Ford and Doe implicated interstate commerce such that
the FAA, not the CAA, applies—and the FAA has no analogous
exception that allows foregoing arbitration when there is a risk of
conflicting rulings in different fora. The fatal problem for Ford,
however, is that it never cited the FAA or urged its applicability
in the trial court.3 Instead, Ford relied solely on California law in
moving to compel arbitration, arguing arbitration was
compulsory under sections 1281.2 and 1281.4. The failure to
argue the FAA below forfeits the point on appeal. (Newton v.
Clemons (2003) 110 Cal.App.4th 1, 11; see also JRS Products,
Inc. v. Matsushita Electric Corp. of America (2004) 115
Cal.App.4th 168, 178 [“Appellate courts are loath to reverse a
judgment on grounds that the opposing party did not have an
opportunity to argue and the trial court did not have an
opportunity to consider”].)
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 (Meridian Financial Services, Inc. v.
3
We have no reporter’s transcript (or acceptable substitute)
of the hearing on the motion to compel arbitration because Ford,
as the appellant, has not provided one.
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Phan (2021) 67 Cal.App.5th 657, 699-700), 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.
DISPOSITION
The judgment is affirmed. Doe shall recover her costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
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