Removal to Federal Court

Cal. Super. - 6th Dist.May 15, 2018

Electronically Filed by Superior Court of CA, County of Santa Clara, on 6/18/2018 5:50 PM Reviewed By: A. Floresca Case #18CV328360 Envelope: 1636315 18CV328360 Santa Clara - Civil A. Floresca OONQ \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO PLAINTIFF KELLY BLICE AND HER COUNSEL OF RECORD AND TO THE CLERK OF THE ABOVE-ENTITLED COURT: PLEASE TAKE NOTICE that a Notice 0f Removal of this action was filed by Defendant BMC Software, Inc. (“Defendant”) in the United States District Court for the Northern District of California on June 18, 201 8, and has been assigned Case Number 5: 1 8-cv-0363 1. A true and correct copy of Defendant’s Notice 0f Removal with supporting exhibits and accompanying documents is attached to this Notice as Exhibit “A” and is served and filed herewith. As a result of this removal, the court is Without jurisdiction to take further action with respect to this matter unless and until the case is remanded. 28 U.S. § 1446(d). DATED: June 18, 2013 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. ETSA C. HA'MASAKI SHANNON R. CLAWSON Attorneys for Defendant BMC SOFTWARE, INC. 34480074.1 2 Case No. 18CV328360 DEFENDANT BMC SOFTWARE, INC.’S NOTICE TO PLAINTIFF AND CLERK OF REMOVAL TO UNITED STATES DISTRICT COURT Exhibit A 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. DEFENDANT BMC SOFTWARE, INC.’S NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. §§ 1332, 1441 AND 1446 LISA C. HAMASAKI, CA Bar No. 197628 lisa.hamasaki@ogletree.com SHANNON R. CLAWSON, CA Bar No. 273699 shannon.clawson@ogletree.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Steuart Tower, Suite 1300 One Market Plaza San Francisco, CA 94105 Telephone: 415.442.4810 Facsimile: 415.442.4870 Attorneys for Defendant BMC SOFTWARE, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KELLY BLICE, an individual, Plaintiffs, v. BMC SOFTWARE, INC., a Delaware Corporation; and DOES 1-10, inclusive, Defendant. Case No. DEFENDANT BMC SOFTWARE, INC.’S NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. §§ 1332, 1441 AND 1446 [DIVERSITY JURISDICTION] Case 5:18-cv-03631 Document 1 Filed 06/18/18 Page 1 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Case No. DEFENDANT BMC SOFTWARE, INC.’S NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. §§ 1332, 1441 AND 1446 TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA AND TO PLAINTIFF AND HER ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that Defendant BMC Software, Inc. (“Defendant” or “BMC Software”) hereby removes this action from the Superior Court of the State of California for the County of Santa Clara to the United States District Court for the Northern District of California pursuant to 28 U.S.C. §§ 1332, 1441, and 1446, on the following grounds: there is complete diversity of citizenship between Plaintiff Kelly Blice (“Plaintiff”), a citizen of the State of California, and BMC Software, a citizen of the States of Delaware and Texas; the amount in controversy exceeds $75,000; and the foregoing facts were true when Plaintiff filed the Complaint in the Superior Court, and remain true now. I. REMOVAL JURISDICTION 1. This action may be removed to this Court by Defendant pursuant to the provisions of 28 U.S.C. § 1332 because complete diversity exists among the parties, and the amount in controversy exceeds $75,000. 2. Venue is proper in this Court pursuant to 28 U.S.C §§ 1391, 1441(a) and 1446(a). II. THE STATE COURT ACTION 3. On May 15, 2018, Plaintiff filed a Complaint for Damages against Defendant in the Superior Court in and for the County of Santa Clara, entitled KELLY BLICE, an Individual, Plaintiff v. BMC SOFTWARE, INC., a Delaware Corporation; and DOES 1-10, inclusive, Defendants, Case No. 18CV328360, alleging claims under California state law for: (1) Sex/Gender Discrimination in violation of the California Fair Employment and Housing Act (“FEHA”); (2) Retaliation in violation of the FEHA; (3) Wrongful Termination; (4) Breach of Contract; (5) Breach of the Implied Covenant of Fair Dealing; and (6) Promissory Estoppel (the “Complaint”). 4. On May 17, 2018, Plaintiff served Defendant with a copy of the Summons and Complaint, Civil Case Cover Sheet, Notice Case Management Conference, and Alternative Dispute Resolution (“ADR”) Program Information Sheet. A true and correct copy of these documents is attached as Exhibit A. 5. On June 15, 2018, Defendant filed and served an Answer to the Complaint in Santa Case 5:18-cv-03631 Document 1 Filed 06/18/18 Page 2 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Case No. DEFENDANT BMC SOFTWARE, INC.’S NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. §§ 1332, 1441 AND 1446 Clara County Superior Court. A true and correct copy of Defendant’s Answer is attached hereto as Exhibit B. 6. Pursuant to 28 U.S.C. §§ 1446(a), 1447(b) and 1449, a true and correct copy of all pleadings served upon Defendant is attached to this Notice of Removal. III. REMOVAL IS TIMELY 7. If a complaint affirmatively reveals on its face the facts necessary for federal court jurisdiction, a defendant in a civil action must remove the action to federal court within 30 days after it is validly served with a summons and complaint. 28 U.S.C. § 1446(b)(1) (“[A] notice of removal may be filed within thirty days after receipt by defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable”); see also Rea v. Michaels Stores, Inc., 742 F.3d 1234, 1237-38 (9th Cir. 2014); Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 354 (1999) (faxed file-stamped copy of complaint did not trigger removal period). Here, Plaintiff served the Complaint on May 17, 2018. Therefore, this removal is timely because it is made on June 18, 2018. IV. GROUNDS FOR REMOVAL: DIVERSITY JURISDICTION 8. “[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. 1441(a). “The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different States.” 28 U.S.C § 1332. 9. As set forth below, this Court has original jurisdiction under 28 U.S.C § 1332 because complete diversity of citizenship exists between the parties and the amount in controversy exceeds $75,000, exclusive of interest and costs. Accordingly, this action is removable under 28 U.S.C. § 1441. / / / / / / Case 5:18-cv-03631 Document 1 Filed 06/18/18 Page 3 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Case No. DEFENDANT BMC SOFTWARE, INC.’S NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. §§ 1332, 1441 AND 1446 A. Diversity Of Citizenship Exists Because Plaintiff Is A Citizen Of California And Defendant Is A Citizen Of Delaware And Texas 1. Plaintiff’s Citizenship. 10. For diversity purposes, an individual’s citizenship is determined by the individual’s domicile. Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir. 1983). For diversity purposes, an individual’s domicile is “her permanent home, where she resides with the intention to remain or to which she intends to return.” Kanter, 265 F.3d at 857. “[T]he existence of domicile for purposes of diversity is determined as of the time the lawsuit is filed.” Lew, 797 F.2d at 750. 11. Plaintiff alleges that she was at all relevant times, and still is, a resident of the State of California, and worked for Defendant in Santa Clara County, California. (See Compl. ¶ 1) BMC Software’s payroll records for Plaintiff also indicate that, during the relevant time period, Plaintiff lived in California. (See Declaration of Lynn Moffat (“Moffett Decl.”), ¶ 3 , Ex. 1) 12. Therefore, Defendant is informed and believes that Plaintiff is and was a citizen of California for purposes of determining diversity jurisdiction for this removal. 2. Defendant Is A Citizen of Delaware And Texas 13. The citizenship of a corporation is both the state of its incorporation and the state of its principal place of business. 28 U.S.C. § 1332(c)(1). When determining a corporation’s principal place of business for purposes of diversity jurisdiction, courts refer to the place where a corporation’s officers direct, control, and coordinate the corporation’s activities. Hertz Corp. v. Friend, 559 U.S. 77, 92-93 (2010). The principal place of business is where the corporation “maintains its headquarters - provided that the headquarters is the actual center of direction, control and coordination.” Id. 14. Defendant was, at the time the action commenced in the state court, and still is, incorporated in the State of Delaware. (Declaration of T. Cory Bleur (“Bleur Decl.”), ¶ 2) Defendant was not, and is not, incorporated in the State of California. (Id.) Defendant’s principal place of business at the time of the filing of the Complaint was and is currently, in Houston, Texas, as Defendant performs the vast majority of its executive and administrative functions at its corporate headquarters in that location. (See Bleur Decl. ¶¶ 4-5) Case 5:18-cv-03631 Document 1 Filed 06/18/18 Page 4 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Case No. DEFENDANT BMC SOFTWARE, INC.’S NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. §§ 1332, 1441 AND 1446 15. Therefore, BMC Software is (and was at all times relevant to the Complaint) a citizen of the States of Delaware and Texas - but not California. 3. The Citizenship of Doe Defendants is Irrelevant 16. “For purposes of removal … the citizenship of defendants sued under fictitious names shall be disregarded.” 28 U.S.C. § 1441(b)(1). The inclusion of “doe” defendants in a state court action thus has no effect on removability. Newcombe v. Adolf Coors, Co., 157 F.3d 686, 690 (9th Cir. 1998) (holding that only the named defendants’ citizenship shall be considered for diversity purposes). Therefore, Plaintiff’s inclusion of DOES 1 through 10 has no impact on this Court’s diversity analysis. 17. Because BMC Software is a citizen of the States of Delaware and Texas, and Plaintiff is a citizen of California, complete diversity among the parties exists now, and did so at the time of the filing of this action on May 15, 2018. B. The Amount In Controversy Exceeds $75,000, Exclusive Of Interest And Costs 18. While Defendant denies any liability as to Plaintiff’s claims, the amount in controversy requirement is satisfied because the allegations in the Complaint make it “more likely than not” that the amount in controversy exceeds the jurisdictional minimum.1 Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403-04 (9th Cir. 1996) (internal citation omitted). 19. In this case, Plaintiff did not allege the amount in controversy. Nevertheless, an action may still be removed if the defendant establishes, by a preponderance of the evidence, that the amount in controversy exceeds the jurisdictional amount. Guglielmino v. McKee Foods Corp., 506 F.3d 696, 699 (9th Cir. 2007). To establish by a preponderance of the evidence that the amount in controversy exceeds the jurisdictional amount, the defendant must establish that it is “more likely than not” that the amount in controversy exceeds $75,000. Sanchez v. Monumental Life Ins. Co., 102 F.3d at 403-04. 20. In determining the amount in controversy, the Court must consider the aggregate of 1 By estimating the amounts Plaintiff may recover if she prevails, Defendant does not concede that Plaintiff will prevail on any of her claims or that, if she prevails, she is entitled to damages in any particular amount or at all. Defendant reserves the full right to dispute Plaintiff’s claims with respect to both liability and damages. Case 5:18-cv-03631 Document 1 Filed 06/18/18 Page 5 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Case No. DEFENDANT BMC SOFTWARE, INC.’S NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. §§ 1332, 1441 AND 1446 general damages, special damages, punitive damages and attorneys’ fees. See Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 347-48 (1977); Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 1998) (claims for statutory attorneys’ fees to be included in amount in controversy, regardless of whether such an award is discretionary or mandatory); Davenport v. Mutual Ben. Health & Acc. Ass’n, 325 F.2d 785, 787 (9th Cir. 1963) (punitive damages must be taken into account where recoverable under state law); Conrad Associates v. Hartford Acc. & Ind. Co., 994 F. Supp. 1196, 1198 (N.D. Cal. 1998) (“amount in controversy” includes claims for general and special damages). 1. Lost Earnings And Employment Benefits 21. In her Complaint, Plaintiff prays for “compensatory damages including lost wages, salary, bonuses, incentive pay, stock, stock options, employment benefits, front pay, backpay, career opportunities and all other types of compensation or benefits.” (See Prayer, ¶ 1; see also Compl. ¶¶ 19, 27, 36, 44, 50, 55.) Assuming Plaintiff has not found new employment to date, Plaintiff puts at issue at least seven (7) months’ worth of lost income to date. (See Compl., ¶¶ 11-12 (alleging Defendant “swiftly terminated” Plaintiff following her alleged complaints in October 2017); see also Declaration of Lynn Moffat (“Moffat Decl.”) ¶ 3-4, Exh. 1 (noting Plaintiff’s final gross regular wages in 2017 reflected in November 2017 earnings statement)) Furthermore, assuming this case takes at least one year from today’s date to get to trial, should Plaintiff prevail on her claims, her damages in back pay alone would be significant. At the time of termination, Plaintiff was an employee earning an annual salary of $227,900.04. (Moffat Decl., ¶ 4) Thus, assuming Plaintiff has not found new employment at the time of trial, the amount in controversy will easily exceed the jurisdictional minimum. 22. In addition to backpay, a plaintiff who successfully alleges wrongful termination or discriminatory discharge of employment generally seeks an award of front pay. See, e.g., Cassino v. Reichhold Chemicals, Inc., 817 F.2d 1338, 1346 (9th Cir. 1997) (stating that a court has discretion to award front pay in lieu of reinstatement in Discrimination matter); James v. Childtime Childcare, Inc., 2007 WL 1589543, at *2 n.1 (E.D. Cal. June 1, 2007) (while courts evaluate the amount in controversy at the time of removal, future lost wages are properly considered in that Case 5:18-cv-03631 Document 1 Filed 06/18/18 Page 6 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Case No. DEFENDANT BMC SOFTWARE, INC.’S NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. §§ 1332, 1441 AND 1446 calculation); see also Crum v. Circus Circus Enters., 231 F.3d 1129, 1131 (9th Cir. 2000) (future damages are properly considered in determining amount in controversy). Even a modest award of one year of front pay, as noted above, would result in additional recovery. See Glenn-Davis v. City of Oakland, 2008 WL 410239 at *4 (N.D. Cal. 2008) (finding three years of front pay “appropriate” in a discrimination suit); Ackerman v. Western Elec. Co., Inc., 643 F.Supp. 836, 856 (N.D. Cal. 1986) (same). Thus, Plaintiff’s allegation of lost wages alone exceeds the amount in controversy. 2. Emotional Distress 23. Plaintiff also seeks compensation for general damages including but not limited to “physical, mental and psychological damages in the form of extreme enduring and worry, suffering, pain, humiliation, embarrassment, mental anguish, and emotional distress.” (See Prayer, ¶ 2; see also Compl. ¶¶ 18, 26, 37) While she does not state a specific amount of damages for emotional distress, “the vagueness of plaintiff’s pleadings with regard to emotional distress damages should not preclude the court from noting these damages are potentially substantial.” Richmond v. Allstate Ins. Co., 897 F.Supp. 447, 450 (S.D. Cal. 1995) (holding that the plaintiff’s failure to make explicit demands did not prevent satisfaction of amount in controversy). A review of jury verdicts in California demonstrates that emotional distress awards in discrimination cases commonly exceed $75,000. See, e.g., Pirouzkar v. Regents of the University of California, 2002 WL 31414996 (Cal. Super. April 2002) (verdicts and settlements) (award of $2,087,500 pain and suffering damages for doctor alleging discrimination and wrongful discharge); Anderson v. American Airlines, 352 Fed. Appx. 182, 183 (9th Cir. 2009) (award for emotional distress damages of $1 million upheld in single-plaintiff employment discrimination case). Thus, Plaintiff’s claimed emotional distress damages alone are likely to satisfy the amount in controversy requirement for removal. 3. Punitive Damages 24. Plaintiff further claims entitlement to punitive damages. (See Prayer, ¶3; Compl. ¶¶ 20, 28, 38.) Requests for punitive damages must be taken into account in ascertaining the amount in controversy. Davenport v. Mutual Ben. Health & Acc. Ass’n, supra, 325 F.2d at 787; see also Case 5:18-cv-03631 Document 1 Filed 06/18/18 Page 7 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Case No. DEFENDANT BMC SOFTWARE, INC.’S NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. §§ 1332, 1441 AND 1446 Romo v. FFG Ins. Co., 397 F. Supp. 2s 1237, 1240 (C.D. Cal. 2005) (“in an amount in controversy inquiry for diversity purposes, punitive damages, where authorized, are counted toward the requirement”). For amount in controversy purposes, the court must conclude that Plaintiff will prevail on her claim for punitive damages. See, Richmond v. Allstate Ins. Co., 897 F.Supp. 447, 449-50 (S.D. Cal. 1995) (amount in controversy includes potential recovery of punitive damages award). Thus, assuming even a modest punitive damages award equal to compensatory damages, a potential punitive damages award is more than sufficient to establish the $75,000 amount in controversy requirement. 4. Attorneys’ Fees 25. Plaintiff also seeks attorneys’ fees. (Prayer, ¶ 4; see also Compl. ¶¶ 21 and 29) Requests for attorneys’ fees must be taken into account in ascertaining the amount in controversy. See Galt G/S v. JSS Scandinavia, supra, 142 F.3d at 1156 (claims for statutory attorneys’ fees to be included in the amount in controversy, regardless of whether award is discretionary or mandatory). The measure of attorneys’ fees for determining the amount in controversy “should be the amount that can reasonably be anticipated at the time of removal, not merely those [fees] already incurred.” Simmons v. PCR Tech., 209 F. Supp. 2d 1029, 1035 (N.D. Cal. 2002). Here, Defendant anticipates that the parties will propound written discovery and that depositions will be taken; and that ultimately Defendant will file a Motion for Summary Judgment/Adjudication. Preparing for and responding to these actions is likely to trigger significant attorneys’ fees. Indeed, attorneys’ fee awards in employment actions brought under California Fair Employment and Housing Act (“FEHA”) frequently exceed $75,000. See, e.g., Jalomo v. HRO Systems, Inc., 23 Trials Digest 3d 65, 1999 WL 1069181 (Cal. Super. July 15, 1999) (verdicts and settlements) (award of $160,050 in attorneys’ fees in single-plaintiff FEHA discrimination and wrongful termination case); Crawford v. DIRECTV Inc., 2010 WL 5383296 (Cal. Super. Sept. 29, 2010) (verdicts and settlements) (award of $159,762.50 for attorneys’ fees in single-plaintiff FEHA discrimination and wrongful termination case). Therefore, if Plaintiff prevails on her claims, she could be entitled to an award of attorneys’ fees that itself would “more likely than not” exceed $75,000, as is typical in employment discrimination cases. Case 5:18-cv-03631 Document 1 Filed 06/18/18 Page 8 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 Case No. DEFENDANT BMC SOFTWARE, INC.’S NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. §§ 1332, 1441 AND 1446 26. Accordingly, Plaintiff’s claims for lost wages and benefits, in connection with Plaintiff’s claims for emotional distress, punitive damages and attorneys’ fees, establish on the face of the Complaint that the amount in controversy exceeds $75,000. V. SATISFACTION OF REQUIREMENTS OF 28 U.S.C. § 1446 27. In accordance with 28 U.S.C. § 1446(a), this Notice of Removal is filed in the District Court of the United States in which the action is pending. 28. This Court is the proper venue because it is in the “district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). 29. In accordance with 28 U.S.C. § 1446(a), this Notice of Removal is accompanied by Exhibit A, which are copies of all process, pleadings, and orders served on Defendant. 30. In accordance with 28 U.S.C. § 1446(b), Defendant’s Notice of Removal was filed within the requisite time period after the initial service of the Complaint on Defendant on May 17, 2018. 31. In accordance with 28 U.S.C. § 1446(d), Defendant will give written notice of the original removal of this action to Plaintiff via her counsel, and file a copy of that Notice with the Santa Clara County Superior Court. VI. INTRADISTRICT ASSIGNMENT 32. Pursuant to Local Rule 3-2(e), Removal and Intradistrict Assignment to the San Jose Division of this Court is proper because the alleged acts and occurrence arose in the County of Santa Clara. VII. PRAYER FOR REMOVAL 33. WHEREFORE, BMC Software prays for removal of the above-entitled action from the Superior Court of the State of California, County of Santa Clara, to this Court. BMC Software respectfully requests that this Court exercise its removal jurisdiction over this action pursuant to 28 U.S.C. §§ 1332, 1441 and 1446 because this civil action is between citizens of different states and the amount in controversy exceeds $75,000, exclusive of interest and costs. / / / / / / Case 5:18-cv-03631 Document 1 Filed 06/18/18 Page 9 of 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 Case No. DEFENDANT BMC SOFTWARE, INC.’S NOTICE OF REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. §§ 1332, 1441 AND 1446 34. In the event this Court has a question regarding the propriety of this Notice of Removal, Defendant requests that it issue an Order to Show Cause so that it may have an opportunity to more fully brief the Court on the basis for this removal. DATED: June 18, 2018 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By: /s/ Lisa C. Hamasaki LISA C. HAMASAKI SHANNON R. CLAWSON Attorneys for Defendant BMC SOFTWARE, INC. 34467309.3 Case 5:18-cv-03631 Document 1 Filed 06/18/18 Page 10 of 42 Exhibit A Case 5:18-cv-03631 Document 1 Filed 06/18/18 Page 11 of 42 SUMMONS MAY !4_ ONLY iIJi!i5[IC (CITA CION JUDICIAL) NOTICE TO DEFENDANT: (A '/ISO AL DEMANDADO): SP4C Software, Inc., a Delaware Corporation2/' tand DOES 1-10, inclusive YOU ARE BEING SUED BY PLAINTIFF: (LO ESTA DEMANDANDO EL DEMANDANTE): Kelly Slice (SOLO P.4RA USO CE LA CORTE) E-FILED 5/15/2018 2:11 PM Clerk of Court Superior Court of CA, County of Santa Clara NOTICE! You have been sued. The court may decide against you without your being heard unless you %rmatlon below. - You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written rs9MA!s 141 MZve a copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be In proper legal form if you want the court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more Information at the California Courts Online Self-Help Center (www.courtinfo.cegov/selmolp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property may be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate these nonprofit groups at the California Legal Services Web site (www.lawhelpcalifomia.org), the California Courts Online Self-Help Center (wiw,.courtlnfo.ca.gov/s&Tho/p), or by contacting your local court or county bar association, NOTE: The court has a statutory lien for waived fees and costs on any settlement or arbitration award of $10,000 or more in a civil case. The courts lien must be paid before the court will dismiss the case. jAVISOl Lo hen demandado. Si no responds den/rn do 30 dies, Is cotta puede dec/dir an But contra sin escuchar su version. Lea Ia inforrnaciOn a cent/n ua c/On. flono 30 DIAS DE CALENDAR/O despues do quo le entreguon esta citaciOn y papa/os logeles pare presenter una rospuesto POT esorito an es/a coda y hacer quo Se en/rogue une cop/a a/ demandante. tine cotta o tine Ilernede (ole fonica no 10 pmtegen. Su rospuesta por escdto 1/one quo ester an formato legal coirecto Si desea qua prncasen su caso an Is carte. Es poslble quo haya un fon-nularlo qua usted puede user pore su /ospuesta. Puede encontror estos forniular/os do to code y mAs lnformaclOn anal Centro do Ayuda do las Codas do California (tsucorte.ca.gov), an Ia bibliotaca do byes do su condado a on Is carte quo be quads mes coma. Si no puede pager /a cuote de.presentacion, p/do al socretado do Is carte quo Is dO un formularlo do oxenciOn do pego de cuotes. Si no presents su rospuoste a tiempo, puede pardar el case porincurnp!lrnlento It le carte to podra quitar su suoldo, dinarn y blenes sin mAs eovertonc/e. Hey otrns req u/silos legales. Es rocornendable quo Ilarne a un abogado inmad/atarnente. S/no conoce a un ebogado, puode flamer a un servicio do rernis/On a abogados. SI no puade pager un abogado, es pusiblo quo cunip/a con los requlsitos pare obtanar sew/c/os legs las gratultosda un programs do sari/c/os legalos sin fines de lucre. Puede encontrar ostos giupos sin lines do lucre an at s/ho web do California Legal Services, (w.iawheIpcalifornia.org), an el Contra do Ayuda doles Codes do- California, (w.sucorte.cagov) 0 poniOndose an cantacto con /a cotta o el colegia do abogados locales. A V/SO: Por lay, Ia cone lieno derocho a rec/arnar las cuotas ylos costos oxentos par imponor tin gravamen sabre cuaiquler recupera c/On do 310,0006 més do valor rociblda med/ante un acuenio a una conces/On do arbltraje an un caso do dorocha civil. Tieno quo The name and address of the court is: (El nombre y direcciOn do Ia carte es) OAE NUMBER (Nunao do) Santa Clara County Superior Court 191 N. First Street San Jose, CA 95113 The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is: (El nombro, to direcciOn ye! nOmero'de te!éfono del abogedo del demandanto, o del dornandante quo no t/ene abogedo, es): Scott Berman (State Bar No. 191460) PIERCE & SHEARER LLP, 2055 Woodside Road, Suite 110 Redwood City, CA 94061 Telephone: (650) 843-1900 DATE: 5/15/2018 .2:11 PM Clerk of Court Clerk, by (Fnrhnl (Ssnrnta.rin) E. Fang motor service or mis summons, use rrooi at oervice OT aummonsfrom; r'u-U1V).) B: prueba de entrega do este citac/On use el formular/o Proof of Service of Summons, (POS-010)). NOTICE TO THE PERSON SERVED: You are served as an individual defendant. as the person sued under the fictitious name of (specify): BMC Software, Inc., a Delaware Corporation 3. IJ on behalf of (specify): under: CCP 416.10 (corporation) CCP 416.60 (minor) CCP 416.20 (defunct corporation) CCP 416.70 (conservatee) CCP 416.40 (association or partnership) CCP 416.90 (authorized person) other (specify): I 4. r5tb, y personal delivery on (date): MAY 1 7 2018 pagolofl I CE SUMMONS Code ofcMIprocecjuro412.2o,46S r pdgLosL9rteanUso IM . wnw.wunro.co.gov ev.julyl, rnronns- Slice, Kelly Case 5:18-cv-03631 Document 1 Filed 06/18/18 Page 12 of 42 0 C 0% <0 - Cl) & > 0. C 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff, BMC Software, Inc., a Delaware Corporation; and DOES 1-10, inclusive, Defendants. 2 3 4 5 6 7 Scott A. Berman (State Bar No. 191460) PIERCE & SHEARER LLP Woodside Corporate Center 2055 Woodside Road, Suite 110 Redwood City, CA 94061-3366 Phone: (650) 843-1900 Fax: (650) 843-1999 Email: sberman@piercesbearer.com Attorneys for Plaintiff KELLY BLICE E-FILED 5/15/2018 2:11 PM Clerk of Court Superior Court of CA, County of Santa Clara 1 8CV328360 Reviewed By: E. Fang SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA UNLIMITED JURISDICTION KELLY BLICE, an Individual, I Case No. 18CV328360 COMPLAINT FOR: I) SEX/GENDER DISCRIMINATION; RETALIATION; WRONGFUL TERMINATION; BREACH OF CONTRACT; BREACH OF THE IMPLIED COVENANT OF FAIR DEALING; and PROMISSORY ESTOPPEL; DEMAND FOR JURY TRIAL Plaintiff Kelly Blice ("Plaintiff' or "Blice"), by and through her undersigned attorneys, hereby complains against the above-named Defendants. GENERAL ALLEGATIONS THE PARTIES AND JURISDICTION I. Plaintiff is a resident of Contra Costa County, State of California, and worked for Defendants in Santa Clara County, California. 2. Upon information and belief, at all relevant times, Defendant BMC Software, Inc. ("BMC") is a corporation organized under the laws of the state of Delaware, and has its principal place of business in Santa Clara County, California. I COMPLAINT; DEMAND FOR JURY TRIAL Case No. Case 5:18-cv-03631 Document 1 Filed 06/18/18 Page 13 of 42 3. Plaintiff is ignorant of the true names and capacities of Defendants sued herein '0 0 <0 - C,) Un F 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 as DOES 1-10, inclusive, and therefore sues these Defendants by such fictitious names. Plaintiff will amend this complaint to allege the true names and capacities of these fictitiously named Defendants when such information is ascertained. Plaintiff is informed and believes and thereon alleges that each of the fictitiously named Defendants, DOES 1-10, inclusive, is responsible in some manner for the occurrences herein alleged, and that the aforementioned Defendants proximately caused Plaintiffs damages as herein alleged. Plaintiff is informed and believes and thereon alleges that at all times herein mentioned, each of the Defendants was the agent and/or employee of each of the remaining Defendants and, in doing the things hereinafter alleged, was acting within the course and scope of such agency and employment. Plaintiff is informed and believes and thereon alleges that at all times herein mentioned, each Defendant herein ratified, authorized, knew about, should have known about, and condoned the acts of each and every other Defendant. ALLEGATIONS COMMON TO ALL CAUSES OF ACTION Blice is a 55-year-old, female executive in the software industry. She initially worked for BMC from 2004 to 2008 as the Director of Product Marketing for Remedy. BMC brought her back in November 2015 as the Senior Director of Solutions Marketing for all mainframe solutions. Reporting to John McKenny ("McKenny"), Blice received outstanding performance reviews, bonuses well in excess of her target, additional direct reports, and additional responsibilities. In September 2017, Blice received another excellent performance review and was promoted to Area Vice President of Solutions Marketing, which included a raise, a bonus! increase, and additional stock options. Blice worked in ZSO, one of BMC's two business units. The president, executive staff and their direct reports are all men who have been working together for many years in Houston, Texas. Most of the employees in ZSO are men with long tenure. Blice wasi the highest ranking woman and only female AVP in ZSO at the time she was fired. 2 COMPLAINT; DEMAND FOR JURY TRIAL Case No. Case 5:18-cv-03631 Document 1 Filed 06/18/18 Page 14 of 42 9. Jason Passe has 18 years of experience in HR and has worked for BMC for 0 a 0. <0 BE, 0 2 3 4 5 6 7 8 9 10 11 12 13 14 IS 16 17 18 19 20 21 22 23 24 25 26 27 28 over 7 years. For the first 6 years, he was the HR Business Partner for the ZSO business unit where he directly supported the executive staff. In April 2017, he moved to Sales in ZSO where he managed Field Enablement. He had no prior experience and only superficial knowledge of BMC's products, but he had very close connections with the mate executive class in Houston. Passe's new position required him to coordinate closely with Blice. He resented having to work with an assertive, competent woman. He tried to blame Blice for his own failings and systematically undermined her work and reputation. Passe even made a false report to HR concerning an employee managed by Blice. Blice complained to McKenny on at least two occasions about how vulnerable she was to this type of discrimination as a woman who is not part of the Houston male establishment In October 2017, Passe expressed his deeply-held contempt for Blice in a telephone conversation, where he screamed and yelled and verbally abused her. Blice complained to McKenny again about this harassment and discrimination. HR was asked to investigate. Blice described to HR the details of Passe's misconduct and further complained that HR had failed to investigate Passe's prior false complaint acted on that complaint to Blice's detriment. In response to Blice's complaints, BMC swiftly terminated her. To cover up its retaliatory intent, BMC pretended that Blice had so egregiously mishandled a complaint concerning another executive, Dick Barry, six months beforehand that she had to be fired immediately. BMC faulted Blice for not immediately notifying HR about this complaint. BMC never would have fired a man under these circumstances. In fact, BMC did not fire a man under these exact circumstances. McKenny, Blice's boss, decided to handle the matter himself and not report the matter to HR. McKenny kept his job. Indeed, the alleged perpetrator was not even terminated. Passe also kept his job. He flagrantly violated BMC's Whistleblower Policy, Code of Conduct, Equal Employee Opportunity Policy and Non-Harassment Policy by 3 COMPLAINT; DEMAND FOR JURY TRIAL Case No. Case 5:18-cv-03631 Document 1 Filed 06/18/18 Page 15 of 42 \0 C C' <0' - ) 2 57 0 2 3 4 5 6 7 8 9 10 II 12 13 14 IS 16 17 18 19 20 21 22 23 24 25 26 27 28 harassing, abusing, and discriminating against Blice and by filing a false report concerning Policy, Code of Conduct, Equal Employee Opportunity Policy and Non-Harassment Policy. They ignored Blice's complaints about Passe, ignored Blice's complaints about HR, helped Passe retaliate against Blice, failed to talk to relevant witnesses, failed to properly investigate complaints, and mishandled prior complaints by Passe. The l-[R representatives, who protected members of the Houston male establishment, kept their jobs as well. FIRST CAUSE OF ACTION SEX/GENDER DISCRIMINATION [Government Code § 12940] (Against All Defendants) The allegations set forth in all proceeding paragraphs of this Complaint are hereby incorporated by this reference as if fully set forth again herein. By its acts and omissions alleged above, Defendants intentionally deprived Plaintiff of equal employment opportunities and otherwise adversely affected her status as an employee, including by terminating her, on the basis of Plaintiff's sex/gender in violation of California Government Code § 12940, et seq. As a direct and foreseeable result of Defendants' unlawful discrimination, Plaintiff has suffered, and will continue to suffer, generally physical, mental and psychological damages in the form of extreme and enduring worry, suffering, pain, humiliation, embarrassment, mental anguish and emotional distress, all to her damage in amounts within the jurisdictional limits of this Court, to be proved at trial. As a direct, foreseeable, and proximate result of Defendant's unlawful Plaintiff has been injured in that she have suffered, and will continue to suffer, a loss of wages and salary, bonuses, compensation, employment benefits, stock options, career path opportunities, and expenses in amounts to be proved at trial. 1/ Blice. Blice reported his misconduct. BMC ignored 1.1 Passe then violated another BMC policy by retaliating against Blice. 15. The FIR representatives themselves violated a host of BMC's Whistleblower El COMPLAINT; DEMAND FOR JURY TRIAL Case No. Case 5:18-cv-03631 Document 1 Filed 06/18/18 Page 16 of 42 In acting as alleged above, Defendant acted maliciously, fraudulently, despicably, and oppressively, with the wrongful intention of injuring Plaintiff, from an improper motive amounting to malice, and in conscious disregard of Plaintiffs rights. In addition, an officer, director, and/or managing agent of Defendants were personally guilty of the conduct; and/or Defendants authorized and/or ratified the foregoing conduct, entitling Plaintiff to punitive damages.Piaintiff is entitled to recover punitive damages from Defendants in amounts to be proved at trial. As a result of Defendant's acts of discrimination as alleged herein, Plaintiff is entitled to reasonable attorney's fees and costs of suit as provided for by California F Government Code § 12965(b). Plaintiff received a right to sue letter from filing a timely charge with the California Department of Fair Employment and Housing. Plaintiff therefore prays for relief as set forth below. SECOND CAUSE OF ACTION RETALIATION [Government Code § 12940(h)] (Against All Defendants) The allegations set forth in all proceeding paragraphs of this Complaint are hereby incorporated by this reference as if fully set forth again herein. By its acts and omissions alleged above, Defendants retaliated against P because she complained about harassment and discrimination on the basis of sex or gender in violation of California Government Code § 12940, etseq. As a direct and foreseeable result of Defendants' unlawful retaliation, Plaintiff has suffered, and will continue to suffer, generally physical, mental and psychological damages in the form of extreme and enduring worry, suffering, pain, humiliation, embarrassment, mental anguish and emotional distress, all to her damage in amounts within the jurisdictional limits of this Court, to be proved at trial. As a direct, foreseeable, and proximate result of Defendant's unlawful Plaintiff has been injured in that she have suffered, and will continue to suffer, a loss of 12 13 0 <0 14 15 : 16 Io CO 17 18 19 0 20 21 22 23 24 25 26 27 28 COMPLAINT; DEMAND FOR JURY TRIAL Case No. Case 5:18-cv-03631 Document 1 Filed 06/18/18 Page 17 of 42 '0 0 <0 - 6 a . U 0 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 '9 20 21 22 23 24 25 26 27 28 I and salary, bonuses, compensation, stock options, incentive pay, front pay, back pay, despicably, and oppressively, with the wrongful intention of injuring Plaintiff, from an improper motive amounting to malice, and in conscious disregard of Plaintiffs rights. In addition, an officer, director, and/or managing agent of Defendants were personally guilty of the conduct; and/or Defendants authorized and/or ratified the foregoing conduct, entitling Plaintiff to punitive damages. Plaintiff is entitled to recover punitive damages from Defendants in amounts to be proved at trial. As a result of Defendant's acts of retaliation, Plaintiff is entitled to reasonable attorney's fees and costs of suit as provided for by California Government Code § 12965(b). Plaintiff received a right to sue letter from filing a timely charge with the California Department of Fair Employment and Housing. Plaintiff therefore prays for relief as set forth below. THIRD CAUSE OF ACTION WRONGFUL TERMINATION (Against All Defendants) The allegations set forth in all preceding paragraphs of the complaint are re- alleged and incorporated herein by reference. It is a fundamental public policy of State of California that: (a) employers are prohibited from depriving employees of equal employment opportunities and otherwise adversely affecting employees on the basis of sex or gender as established by California Government Code § 12940, et seq.; and (b) employers are prohibited from retaliating against employees who complain about discrimination and/or harassment on the basis of sex or gender as established in California Government Code § 12940(h). As described above, Plaintiff complained to Defendants about discrimination, I harassment and retaliation on the basis of sex or gender. Defendants violated the public policy of the State of California by terminating Plaintiff because of her complaints. employment benefits, and career path opportunities, in amounts to be proved at trial. 28. In acting as alleged above, Defendant acted maliciously, fraudulently, COMPLAINT; DEMAND FOR JURY TRIAL Case No. Case 5:18-cv-03631 Document 1 Filed 06/18/18 Page 18 of 42 36. As a direct and foreseeable result of Defendants' actions, Plaintiff has suffered '0 C 0 <0\ c Ct a' > 0. 0 2 3 4 5 6 7 8 9 10 11 12 13 14 IS 16 17 18 19 20 21 22 23 24 25 26 27 28 and continues to suffer losses and damages, including, but not limited to, lost wages, commissions, incentive pay, stock options, bonuses, compensation, front pay, back pay, and loss of career opportunities. As a direct, foreseeable, and proximate result of Defendants' unlawful Plaintiff has suffered, and will continue to suffer, general physical, mental and psychological damages in the form of extreme enduring and worry, suffering, pain, humiliation, embarrassment, mental anguish, and emotional distress. Defendants personally committed the unlawful acts described above with oppression, fraud and/or malice justifying punitive damages. Each Defendant was despicable and each Defendant acted towards Plaintiff with malice, oppression, fraud, and with a willful and conscious disregard of Plaintiff's rights. In addition, an officer, director, and/or managin agent of Defendants were personally guilty of the conduct; and/or Defendants authorized and/or ratified the foregoing conduct, entitling Plaintiff to punitive damages. Plaintiff therefore prays for relief as set forth below. FOURTH CAUSE OF ACTION BREACH OF CONTRACT (Against All Defendants) The allegations set forth in all preceding paragraphs of the Complaint are re- alleged and incorporated herein by reference. Plaintiff entered into an agreement, partially oral, partially written, and partially implied by conduct which included BMC's Whistleblower Policy, Code of Conduct, Equal Employee Opportunity Policy and Non-Harassment Policy. Those polices encourage employees to report suspected violations and promise to protect those employees from retaliation. The Code of Conduct states, "Retaliation is Not Tolerated. BMC does not tolerate retaliation against any employee who, acting in good faith, reports suspected misconduct, asks questions or raises concerns." The Whistleblower Policy states, "BMC will U COMPLAINT; DEMAND FOR JURY TRIAL Case No. Case 5:18-cv-03631 Document 1 Filed 06/18/18 Page 19 of 42 0 C \OOCNQKII 1o 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Kelly Blice vs. BMC Software, Inc. Santa Clara Superior Court Case N0. 18CV328360 I am and was at all times herein mentioned over the age of 18 years and not a party to the action in which this service is made. At all times herein mentioned I have been employed in the County of San Francisco in the office of a member of the bar of this court at whose direction the service was made. My business address is Steuart Tower, Suite 1300, One Market Plaza, San Francisco, California 94105. On June 15, 201 8, I served the following document(s): DEFENDANT BMC SOFTWARE, INC.’S ANSWER TO PLAINTIFF KELLY BLICE’S UNVERIFIED COMPLAINT FOR DAMAGES by placing D (the original) (a true copy thereof) in a sealed envelope addressed to: Scott A. Berman Attorneys for Plaintiff PIERCE & SHEARER LLP Woodside Corporate Center 2055 Woodside Road, Suite 110 Redwood City, CA 9406 1 -3366 Tel: 650.843.1900 Fax: 650.843.1999 Email: sberman@pierceshearer.com E BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order 01' an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the person[s] at the e-mail addresses listed on the attached service list. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. K4 (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct Executed on June 15, 2018 at San Francisco, California fl/%/ /L/ ,/Lo‘1fi Nicolini 9 Case No. lscv328360 DEFENDANT BMC SOFTWARE, INC.’S ANSWER TO PLAINTIFF’S UNVERIFIED COMPLAINT FOR DAMAGES ?H&75C8!--!#GSd'!)/(*0$!! ! CIVIL COVER SHEET! IVS!?H&75C8!--!QWdWZ!Q]dS`!aVSSb!O\R!bVS!W\T]`[ObW]\!Q]\bOW\SR!VS`SW\!\SWbVS`!`S^ZOQS!\]`!ac^^ZS[S\b!bVS!TWZW\U!O\R!aS`dWQS!]T!^ZSORW\Ua!]`!]bVS`!^O^S`a!Oa!`S_cW`SR!Pg!ZOe%!! SfQS^b!Oa!^`]dWRSR!Pg!Z]QOZ!`cZSa!]T!Q]c`b'!IVWa!T]`[%!O^^`]dSR!W\!Wba!]`WUW\OZ!T]`[!Pg!bVS!?cRWQWOZ!7]\TS`S\QS!]T!bVS!J\WbSR!HbObSa!W\!HS^bS[PS`!*20-%!Wa!`S_cW`SR!T]`!bVS!7ZS`Y!]T! 7]c`b!b]!W\WbWObS!bVS!QWdWZ!R]QYSb!aVSSb'!(SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)! I. (a)!PLAINTIFFS! DEFENDANTS ! (b)!7]c\bg!]T!GSaWRS\QS!]T!;W`ab!AWabSR!EZOW\bWTT! ! ! (EXCEPT IN U.S. PLAINTIFF CASES)! 7]c\bg!]T!GSaWRS\QS!]T!;W`ab!AWabSR!8STS\RO\b! (IN U.S. PLAINTIFF CASES ONLY)! CDI93!!!!!!>C!A5C8!7DC89BC5I>DC!75H9H%!JH9!I=9!AD75I>DC!D;! !! I=9!IG57I!D;!A5C8!>CKDAK98'! ! (c)!!!5bb]`\Sga!(Firm Name, Address, and Telephone Number)! 5bb]`\Sga!(If Known)! ! II. BASIS OF JURISDICTION (Place an “X” in One Box Only)! III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff! *!! J'H'!<]dS`\[S\b!EZOW\bWTT!! ,!! ;SRS`OZ!FcSabW]\! ! ! (U.S. Government Not a Party) +!! J'H'!<]dS`\[S\b!8STS\RO\b! -!! 8WdS`aWbg! ! ! (Indicate Citizenship of Parties in Item III) ! (For Diversity Cases Only) ! ! ! ! and One Box for Defendant) ! PTF DEF PTF DEF 7WbWhS\!]T!IVWa!HbObS!! *!! *! >\Q]`^]`ObSR!or!E`W\QW^OZ!EZOQS! -! -! ! ! ! ]T!6caW\Saa!>\!IVWa!HbObS! 7WbWhS\!]T!5\]bVS`!HbObS!! +!! +!! >\Q]`^]`ObSR!and!E`W\QW^OZ!EZOQS!! .!! .! ! ! ! ]T!6caW\Saa!>\!5\]bVS`!HbObS! 7WbWhS\!]`!HcPXSQb!]T!O!! ,!! ,!! ;]`SWU\!CObW]\!! /!! /! ;]`SWU\!7]c\b`g! ! IV. NATURE OF SUIT!!!(Place an “X” in One Box Only)! CONTRACT! TORTS! FORFEITURE/PENALTY! BANKRUPTCY! OTHER STATUTES! **)!>\ac`O\QS! *+)!BO`W\S! *,)!BWZZS`!5Qb! *-)!CSU]bWOPZS!>\ab`c[S\b! *.)!GSQ]dS`g!]T! DdS`^Og[S\b!DT! KSbS`O\ia!6S\STWba! *.*!BSRWQO`S!5Qb! *.+!GSQ]dS`g!]T!8STOcZbSR! HbcRS\b!A]O\a!#9fQZcRSa! KSbS`O\a$! *.,!GSQ]dS`g!]T! DdS`^Og[S\b! ! !]T!KSbS`O\ia!6S\STWba! */)!Hb]QYV]ZRS`ai!HcWba! *2)!DbVS`!7]\b`OQb! *2.!7]\b`OQb!E`]RcQb!AWOPWZWbg! *2/!;`O\QVWaS! REAL PROPERTY +*)!AO\R!7]\RS[\ObW]\! ++)!;]`SQZ]ac`S! +,)!GS\b!ASOaS!"!9XSQb[S\b! +-)!I]`ba!b]!AO\R! +-.!I]`b!E`]RcQb!AWOPWZWbg! +2)!5ZZ!DbVS`!GSOZ!E`]^S`bg! PERSONAL INJURY ,*)!5W`^ZO\S! ,*.!5W`^ZO\S!E`]RcQb!AWOPWZWbg! ,+)!5aaOcZb%!AWPSZ!"!HZO\RS`! ,,)!;SRS`OZ!9[^Z]gS`ai! AWOPWZWbg! ,-)!BO`W\S! ,-.!BO`W\S!E`]RcQb!AWOPWZWbg! ,.)!B]b]`!KSVWQZS! ,..!B]b]`!KSVWQZS!E`]RcQb! AWOPWZWbg! ,/)!DbVS`!ES`a]\OZ!>\Xc`g! ,/+!ES`a]\OZ!>\Xc`g!&BSRWQOZ! BOZ^`OQbWQS!! CIVIL RIGHTS --)!DbVS`!7WdWZ!GWUVba! --*!K]bW\U! --+!9[^Z]g[S\b! --,!=]caW\U(! 5QQ][[]RObW]\a! --.!5[S '̀!e(8WaOPWZWbWSal 9[^Z]g[S\b! --/!5[S '̀!e(8WaOPWZWbWSalDbVS`! --1!9RcQObW]\! PERSONAL INJURY ,/.!ES`a]\OZ!>\Xc`g!l!E`]RcQb! AWOPWZWbg! ,/0!=SOZbV!7O`S(! EVO`[OQScbWQOZ!ES`a]\OZ! >\Xc`g!E`]RcQb!AWOPWZWbg! ,/1!5aPSab]a!ES`a]\OZ!>\Xc`g! E`]RcQb!AWOPWZWbg! PERSONAL PROPERTY ,0)!DbVS`!;`OcR! ,0*!I`cbV!W\!AS\RW\U! ,1)!DbVS`!ES`a]\OZ!E`]^S`bg! 8O[OUS! ,1.!E`]^S`bg!8O[OUS!E`]RcQb! AWOPWZWbg! PRISONER PETITIONS HABEAS CORPUS -/,!5ZWS\!8SbOW\SS! .*)!B]bW]\a!b]!KOQObS! HS\bS\QS! .,)!\Q][S!HSQc`Wbg!5Qb! IMMIGRATION -/+!CObc`OZWhObW]\! 5^^ZWQObW]\! -/.!DbVS`!>[[WU`ObW]\! 5QbW]\a! -++!5^^SOZ!+1!JH7!n!*.1! -+,!LWbVR`OeOZ!+1!JH7! n!*.0! PROPERTY RIGHTS 1+)!7]^g`WUVba! 1,)!EObS\b! 1,.!EObS\b"5PP`SdWObSR!CSe! 8`cU!5^^ZWQObW]\! 1-)!I`ORS[O`Y! SOCIAL SECURITY 1/*!=>5!#*,2.TT$! 1/+!6ZOQY!Ac\U!#2+,$! 1/,!8>L7(8>LL!#-).#U$$! 1/-!HH>8!IWbZS!MK>! 1/.!GH>!#-).#U$$! FEDERAL TAX SUITS 10)!IOfSa!#J'H'!EZOW\bWTT!]`! 8STS\RO\b$! 10*!>GHlIVW`R!EO`bg!+/!JH7! n!0/)2! ,0.!;OZaS!7ZOW[a!5Qb! ,0/!FcW!IO[!#,*!JH7! n!,0+2#O$$! -))!HbObS!GSO^^]`bW]\[S\b! -*)!5\bWb`cab! -,)!6O\Ya!O\R!6O\YW\U! -.)!7][[S`QS! -/)!8S^]`bObW]\! -0)!GOQYSbSS`!>\TZcS\QSR!"! 7]``c^b!D`UO\WhObW]\a! -1)!7]\ac[S`!7`SRWb! -2)!7OPZS(HOb!IK! 1.)!HSQc`WbWSa(7][[]RWbWSa(! 9fQVO\US! 12)!DbVS`!HbObcb]`g!5QbW]\a! 12*!5U`WQcZbc`OZ!5Qba! 12,!9\dW`]\[S\bOZ!BObbS`a! 12.!;`SSR][!]T!>\T]`[ObW]\! 5Qb! 12/!5`PWb`ObW]\! 122!5R[W\Wab`ObWdS!E`]QSRc`S! 5Qb(GSdWSe!]`!5^^SOZ!]T! 5US\Qg!8SQWaW]\! 2.)!7]\abWbcbW]\OZWbg!]T!HbObS! HbObcbSa! ! V. ORIGIN (Place an “X” in One Box Only)! * D`WUW\OZ! E`]QSSRW\U! +! GS[]dSR!T`][! HbObS!7]c`b! , GS[O\RSR!T`][! 5^^SZZObS!7]c`b! -! GSW\abObSR!]`! GS]^S\SR! . I`O\aTS``SR!T`][!! 5\]bVS`!8Wab`WQb!(specify)! / BcZbWRWab`WQb!!! AWbWUObW]\lI`O\aTS`! 1 BcZbWRWab`WQb! AWbWUObW]\l8W`SQb!;WZS! ! VI. CAUSE OF ACTION! 7WbS!bVS!J'H'!7WdWZ!HbObcbS!c\RS`!eVWQV!g]c!O`S!TWZW\U!!(Do not cite jurisdictional statutes unless diversity)3! !! 6`WST!RSaQ`W^bW]\!]T!QOcaS3! !! ! VII. REQUESTED IN COMPLAINT:! 7=97@!>;!I=>H!>H!5!CLASS ACTION! JC89G!GJA9!+,%!;SR'!G'!7Wd'!E'! DEMAND $ ! 7=97@!N9H!]\Zg!WT!RS[O\RSR!W\!Q][^ZOW\b3! JURY DEMAND: NSa! C]! VIII. RELATED CASE(S), IF ANY (See instructions): ?J8<9! ! 8D7@9I!CJB69G! ! ! IX. DIVISIONAL ASSIGNMENT (Civil Local Rule 3-2)! (Place an “X” in One Box Only) SAN FRANCISCO/OAKLAND SAN JOSE EUREKA-MCKINLEYVILLE ! DATE SIGNATURE OF ATTORNEY OF RECORD Kelly Blice BMC Software, Inc. Contra Costa County Scott Berman, PIERCE & SHEARER LLP; 2055 Woodside Road, Suite 110 Redwood City, CA 94061 Tel: (650) 843-1900 Lisa C. Hamasaki and Shannon Clawson; Ogletree, Deakins, Nash, Smoak & Stewart, P.C.; Steuart Tower, Suite 1300, One Market Plaza, San Francisco CA 94105; Tel: (415) 442-4810 28 U.S.C. Sections 1332, 1441 and 1446 Diversity jurisdiction 06/18/2018 /s/ Lisa C. Hamasaki Case 5:18-cv-03631 Document 1-1 Filed 06/18/18 Page 1 of 1 Case 5:18-cv-03631 Document 1-2 Filed 06/18/18 Page 1 of 4 .5 Omflom 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LISA C. HAMASAKI, CA Bar No. 197628 1isa.hamasakj@ogletree.com SHANNON R. CLAWSON, CA Bar N0. 273699 shannon.clawson@ogletree.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Steuafl Tower, Suite 1300 One Market Plaza San Francisco, CA 94105 Telephone: 4 1 5.442.48 10 Facsimile: 4 1 5 442.4870 Attorneys for Defendant BMC SOFTWARE, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KELLY BLICE, an individual, Plaintiffs, v. BMC Software, Inc., a Delaware Corporation; and DOES 1-10, inclusive, Defendant. Case N0. DECLARATION OF LYNN MOFFETT IN SUPPORT OF DEFENDANT BMC SOFTWARE, INC.’S REMOVAL TO UNITED STATES DISTRICT COURT Complaint Filed: May 15, 2018 Trial Date: None Set Judge: Case No. DECLARATION OF LYNN MOFFETT IN SUPPORT OF DEFENDANT’S REMOVAL TO UNITED STATES DISTRICT COURT Case 5:18-cv-03631 Document 1-2 Filed 06/18/18 Page 2 of 4 N \Dwflamhw 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, Lynn Moffett, declare as follows: l. I am a Vice President 0f Total Rewards for BMC Software, Inc. (“BMC Software” or “Defendant”). I have held this position since April 2015. I have personal knowledge of the facts set forth below and if called upon t0 testify to same, I could and would do so competently and tmthfully. 2. As Vice President of Total Rewards, I am responsible for providing human resources services t0 BMC Software, and am familiar with the employment and payroll history 0f BMC Software employees. BMC Software created, keeps and maintains these records in the regular course 0f business, and entries are made on those records in a timely manner by individuals with knowledge of the information being entered. 3. Ihave access to and have reviewed BMC Software’s payroll records related t0 plaintiff Kelly Blice (“Plaintiff”). Based on my review of BMC Software’s payroll records, at all times during Plaintiff’s employment with BMC Software, she maintained a California residence. At the time of her termination, Plaintiff maintained a home address of 523 Silver Lake Drive, Danville, California 94526. A true and correct copy of Plaintiff’ s earnings statement dated November 30, 2017 reflecting her California address is attached hereto as Exhibit 1. 4. Based 0n my review 0f BMC Software’s records, at the time of Plaintiff’s termination, Plaintiff held the position of Area Vice President of Solutions Marketing, earning a salary 0f $ 227,900.04 per year at the time of her termination. As reflected in Plaintiff’s November 2017 earnings statement, a true and correct copy of which is attached as Exhibit 1, Plaintiff’s final gross regular wages, not including bonus payouts from BMC Software’s Global Incentive Compensation Plan (“GICP”), in 2017 amounted to $193,243.58. I declare under penalty of perjury under the laws of the United States of America and the State 0f California that the foregoing is true and correct. Executed on June 14, 2018 at Houston, C9?» ”965% Lynn Moffett l Case No. Texas. DECLARATION OF LYNN MOFFETT IN SUPPORT OF DEFENDANT’S REMOVAL TO UNITED STATES DISTRICT COURT Case 5:18-cv-03631 Document 1-2 Filed 06/18/18 Page 3 of 4 Exhibit 1 This amount: order of: Pay to the DP, LLCA2000 Earnings Statement SEVEN THOUSAND FOUR HUNDRED FORTY AND 23 100 DOLLARS 11 30 2017 CO. FILE DEPT. CLOCK NUMBER Pay Date: 021834 039982 Y 1 KELLY J BLICE SSQ 523 SILVER LAKE DR 32−1/1110 BMC SOFTWARE, INC. DANVILLE CA 94526 $7440.23 2103 CITYWEST BLVD. 301 307 27 1533 Single Net Check $7 440 23 HOUSTON, TX 77042−2828 Excluded from federal taxable wages Taxable Marital Status: $10 956 73 Period Beginning: 11 16 2017 Exemptions/Allowances: −2 369 17 63 656 44 Period Ending: 11 30 2017 Federal: 3 −157 12 4 329 55 Your federal taxable wages this period are CA: 3 −97 53 887 31 $10 788 95 this period total to date Other Benefits and 11 30 2017 rate hours this period year to date Regular 109 5673 32 00 3 506 15 193 243 58 Gtl 46 69 973 36 Vacation 109 5673 68 00 7 450 58 7 450 58 Employer Hsa 500 00 Awards 92 84 401K Er Match 12 945 43 Gicp 100 442 51 Grossupawards BMC COMPANY PHONE NUMBER: 713−918−4210 77 76 UNLIMITED PAID SICK LEAVE AVAILABLE PER BMC POLICY Gross Pay −694 65 24 722 39 NONEXEMPT EMPLOYEES −THIS CHECK COVERS EXCEPTION TIME FOR THE PERIOD OF 11/5/17 THROUGH Statutory 7 886 40 11/18/17 Federal Income Tax 998 11 Payroll check number: Medicare Tax −10 81 237 82 Pay date: Medicare Surtax −120 83 2 658 26 CA State Income Tax −31 92 702 24 Social Security Tax −8 25 181 50 CA SUI SDI Tax −22 00 484 00 Dental −4 22 92 84 Health Savings 92 84 Medical 6 000 00 Pre Paid Legal 18 000 00 Suppl Ltd $7 440 23 Vision 003−0001 Awards 401K Catch Up 401K Ee Contrib Net Pay BMC SOFTWARE INC 2103 CITYWEST BLVD 1533 HOUSTON TX 77042−2828 BANK OF AMERICA KELLY J BLICE NON−NEGOTIABLE −VOID −NON−NEGOTIABLE −VOID Case 5:18-cv-03631 Document 1-2 Filed 06/18/18 Page 4 of 4 Case 5:18-cv-03631 Document 1-3 Filed 06/18/18 Page 1 of 3 \DOONQUIADJNt-l NNNNNNNNN" mqo‘mgmm-‘oonSSGEGBZS LISA C. HAMASAKI, CA Bar No. 197628 1isa.hamasaki@ogletree.com SHANNON R. CLAWSON, CA Bar No. 273699 Shannon.clawson@ogletree.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Steuart Tower, Suite 1300 One Market Plaza San Francisco, CA 94105 Telephone: 415.442.48 1 0 Facsimile: 4 1 5.442.4870 Attorneys for Defendant BMC SOFTWARE, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KELLY BLICE, an individual, Plaintiffs, v. BMC Software, Inc., a Delaware Corporation; and DOES 1-10, inclusive, Defendant. Case No. DECLARATION OF CORY BLEUER IN SUPPORT OF DEFENDANT BMC SOFTWARE, INC.’S REMOVAL T0 UNITED STATES DISTRICT COURT Complaint Filed: May 15, 2018 Trial Date: None Set Judge: Case No. “fin! A n A 'r‘rn\1 An 'r r‘nn‘r nt rrl' mn n1 otmhnn'r Ar} hhrflrrxm Aer’a nun [Ax] A Y Tn Inn'rr‘h OT A Th0 Case 5:18-cv-03631 Document 1-3 Filed 06/18/18 Page 2 of 3 £11wa \DOONON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, T. Cory Bleuer, declare as follows: 1. I am Senior Vice President, Controller and Chief Accounting Officer at BMC Software, Inc. (“BMC Sofiware” or “Defendant”). I have held this position since January 2017, and have been With BMC Software since 2006. I have personal knowledge of the facts set forth below and if called upon to testify to same, I could and would do so competently and truthfully. In my position, I am familiar with and have personal knowledge of BMC Software’s corporate organization and general business operations, including the location 0f company operations. 2. BMC Software is a privately-held corporation formed under the laws of the State of Delaware. BMC Soflware is a wholly owned subsidiary of BMC Sofiware Finance, Inc., a Delaware Corporation, which is a wholly owned subsidiary of Boxer Parent Company, Inc., a Delaware Corporation. BMC Software has not been incorporated in California. BMC Sofiware’s corporate headquarters and principal place of business - where significant business operations are directed, controlled and coordinated - are located at its headquarters at 2103 CityWest Boulevard, Houston, Texas 77042. 3. Regularly scheduled meetings 0f the board of directors for BMC Sofiware’s parent companies are held at its corporate headquarters in Texas. Most 0fBMC Sofiware’s key executive officers maintain their offices at its corporate headquarters in Texas, including its chief financial officer, general counsel, chief information officer, chief accounting officer, and the leaders of multiple product lines, among others. BMC Software’s key executive officers direct, plan, develop, control, and coordinate the corporation’s business and financial activities largely from its corporate headquaners. 5. BMC Software’s financial records are also maintained in Texas. I declare under penalty of peljury under the laws of the United States of America and the State of California that the foregoing is true and correct. Executed on June L8, 201 8 at Houston, Texas. fl T. Cory Bleuer 1 Case No. hnr‘r A n A Trnxv nr.‘ T I‘nn‘r n1 r51 mn n7 otmnnn'r‘ nr.‘ hnfihxm Axv'racl hr“ Ir“! A 1 Tn TTKTT'r'wn CT A Tho Case 5:18-cv-03631 Document 1-3 Filed 06/18/18 Page 3 of 3 th \DOOVONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 344580251 2 Case No. nrr‘v A n A 'I‘YnxT n‘n Pr r‘nn‘r n1 n1 mn n? crmnnn'!‘ nr.‘ nflnnxm A\Y'r‘1c‘ nrn ln‘r A v 'r‘n vnn'l'hh (V'r‘ A T110 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. DEFENDANT BMC SOFTWARE, INC.’S CORPORATE DISCLOSURE STATEMENT IN COMPLIANCE WITH FRCP 7.1 LISA C. HAMASAKI, CA Bar No. 197628 lisa.hamasaki@ogletree.com SHANNON R. CLAWSON, CA Bar No. 273699 shannon.clawson@ogletree.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Steuart Tower, Suite 1300 One Market Plaza San Francisco, CA 94105 Telephone: 415.442.4810 Facsimile: 415.442.4870 Attorneys for Defendant BMC SOFTWARE, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KELLY BLICE, an individual, Plaintiffs, v. BMC Software, Inc., a Delaware Corporation; and DOES 1-10, inclusive, Defendant. Case No. DEFENDANT BMC SOFTWARE, INC.’S CORPORATE DISCLOSURE STATEMENT IN COMPLIANCE WITH FRCP 7.1 Case 5:18-cv-03631 Document 1-4 Filed 06/18/18 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Case No. DEFENDANT BMC SOFTWARE, INC.’S CORPORATE DISCLOSURE STATEMENT IN COMPLIANCE WITH FRCP 7.1 TO THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION, AND TO PLAINTIFF KELLY BLICE AND HER ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that pursuant to Rule 7.1 of the Federal Rules of Civil Procedure, Defendant BMC Software, Inc. (“Defendant”) hereby discloses that BMC Software, Inc. is a wholly-owned subsidiary of BMC Software Finance, Inc., a Delaware corporation. BMC Software Finance, Inc. is a wholly-owned subsidiary of Boxer Parent Company Inc., a Delaware corporation. There is no publicly held corporation that owns 10 percent or more of BMC Software, Inc.’s stock. DATED: June 18, 2018 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By: /s/ Lisa C. Hamasaki LISA C. HAMASAKI SHANNON R. CLAWSON Attorneys for Defendant BMC SOFTWARE, INC. 34475607.1 Case 5:18-cv-03631 Document 1-4 Filed 06/18/18 Page 2 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. DEFENDANT BMC SOFTWARE, INC.’S CERTIFICATION OF INTERESTED ENTITIES OR PERSONS LISA C. HAMASAKI, CA Bar No. 197628 lisa.hamasaki@ogletree.com SHANNON R. CLAWSON, CA Bar No. 273699 shannon.clawson@ogletree.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Steuart Tower, Suite 1300 One Market Plaza San Francisco, CA 94105 Telephone: 415.442.4810 Facsimile: 415.442.4870 Attorneys for Defendant BMC SOFTWARE, INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA KELLY BLICE, an individual, Plaintiffs, v. BMC Software, Inc., a Delaware Corporation; and DOES 1-10, inclusive, Defendant. Case No. DEFENDANT BMC SOFTWARE, INC.’S CERTIFICATION OF INTERESTED ENTITIES OR PERSONS PURSUANT TO LOCAL RULE 3-15 Case 5:18-cv-03631 Document 1-5 Filed 06/18/18 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Case No. DEFENDANT BMC SOFTWARE, INC.’S CERTIFICATION OF INTERESTED ENTITIES OR PERSONS Pursuant to Civil L.R. 3-15, the undersigned certifies that the following listed persons, associations of persons, firms, partnerships, corporations (including parent corporations), or other entities (i) have a financial interest in the subject matter in controversy or in a party to the proceeding, or (ii) have a non-financial interest in the subject matter or in a party that could be substantially affected by the outcome of this proceeding: Defendant BMC Software, Inc., a Delaware corporation, states that it is a wholly-owned subsidiary of BMC Software Finance, Inc., which is a wholly-owned subsidiary of Boxer Parent Company Inc. Boxer Parent Company Inc. is a closely-held, non-publicly traded corporation that is owned by affiliates of Bain Capital Private Equity, LP, Golden Gate Capital Equity, Inc., Insight Venture Management, LLC, Westhorpe Investment Pte. Ltd., and Elliot Associates, LP. DATED: June 18, 2018 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By: /s/ Lisa C. Hamasaki LISA C. HAMASAKI SHANNON R. CLAWSON Attorneys for Defendant BMC SOFTWARE, INC. 34478619.1 Case 5:18-cv-03631 Document 1-5 Filed 06/18/18 Page 2 of 2 OONOU‘I-D- \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Kelly Blice vs. BMC Software, Inc. California Superior Court, County 0f Santa Clara Case No. 180V328360 I am and was at all times herein mentioned over the age of 18 years and not a party to the action in which this service is made. At all times herein mentioned I have been employed in the County of San Francisco in the office of a member of the bar of this court at whose direction the service was made. My business address is Steuart Tower, Suite 1300, One Market Plaza, San Francisco, California 94105. On June 18, 201 8, I served the following document(s): DEFENDANT BMC SOFTWARE, INC.’S NOTICE TO PLAINTIFF AND CLERK OF THE SUPERIOR COURT OF REMOVAL OF CIVIL ACTION TO UNITED STATES DISTRICT COURT by placing D (the original) X (a true copy thereof) in a sealed envelope addressed to: Scott A. Berman Attorneys for Plaintiff PIERCE & SHEARER LLP Woodside Corporate Center 2055 Woodside Road, Suite 110 Redwood City, CA 94061-3366 Tel: 650.843.1900 Fax: 650.843.1999 Email: sberman@pierceshearer.com X BY E-MAIL OR ELECTRONIC TRANSMISSION: Based 0n a court order 0r an agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the person[s] at the c-mail addresses listed on the attached service list. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. K4 (State) I declare under penalty of perjury under the laws 0f the State of California that the above is true and correct. he United States of America that the above is true and correct. \ Executed on June 18, 201 8 at San Francisco, California. / L(fifi Niéolini 34480074.1 3 Case No. 18CV328360 DEFENDANT BMC SOFTWARE, INC.’S NOTICE TO PLAINTIFF AND CLERK OF REMOVAL TO UNITED STATES DISTRICT COURT