NOT FOR PUBLICATION FILED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
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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
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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.”).
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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.
5