Demurrer__with_motion_to_strike_ccp_43010

Motion

Cal. Super. - 2nd Dist.December 18, 2018

Electronically FILED by Superior Court of California, County of Los Angeles on 03/21/2019 02:56 PM Sherri R. Carter, Executive Officer/Clerk of Court, by K. Hung,Deputy Clerk || Rosemarie S. Lewis, Esq., SBN 158891 Ashleigh K. Gideon, Esq., SBN 318223 BORTON PETRINI, LLP 626 Wilshire Boulevard, Suite 975 Los Angeles, California 90017 Tel: (213) 624-2869 Fax: (213) 489-3930 rlewis@bortonpetrini.com A w o N Attorneys for Defendants LOTUS OXNARD CORP. and LOTUS 6/| COMMUNICATIONS CORPORATION 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF LOS ANGELES, CENTRAL 10 11 SAHEL ALEMANSOUR, an individual, Case No. 18STCV09081 12 [Assigned to Hon. Robert S. Draper; Dept. 78] Plaintiff, 13 DEFENDANTS’ NOTICE OF DEMURRER V. AND DEMURRER TO PLAINTIFF’S 14 COMPLAINT FOR DAMAGES; LOTUS OXNARD CORP; LOTUS MEMORANDUM OF POINTS AND 15|| COMMUNICATIONS CORPORATION; KIRN AUTHORITIES; DECLARATION OF 670 AM SOCALPERSIAN.COM; 670 AM KIRN; | ASHLEIGH K. GIDEON; [PROPOSED] 16]} KIRN; and DOES 1 to 100, inclusive, ORDER 17 Defendants. [Filed concurrently with Motion to Strike] 18 Reservation No.: 914789103385 19 DATE: June 10, 2019 TIME: 8:30 a.m. 20 DEPT: 78 21 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 22 PLEASE TAKE NOTICE that on June 10, 2019 at 8:30 AM in Department 78 of the 23 above entitled court, located at 111 North Hill Street, Los Angeles, CA 90012, LOTUS OXNARD 24 CORP. AND LOTUS COMMUNICATIONS CORPORATION (“Defendants”) will and hereby do 25 demur to the eight causes of action in Plaintiff SAHEL ALEMANSOUR’s (“Plaintiff”) Complaint for 26 Damages. Defendants bring forth this demurrer as to all eight causes of action as set forth below: 27 1 28 h:\060658\073 492\pldgs\dem 1 urrer docx DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ASHLEIGH K. GIDEON; [PROPOSED] 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 h:\060658%073 492\pldgs\dem urrer.docx First Cause of Action: Disability Discrimination in Violation of Government Code §12940 (a): Disparate Treatment Based on Disability and/or Perceived Disability 1. Plaintiff’s First Cause of Action - Disability Discrimination in Violation of Government Code §12940 (a): Disparate Treatment Based on Disability and/or Perceived Disability - fails to state sufficient facts to constitute a cause of action against Defendants. Second Cause of Action: Disability Discrimination in Violation of Government Code §12940 (m): Failure to Provide Reasonable Accommodation 2. Plaintiff’s Second Cause of Action - Disability Discrimination in Violation of Government Code §12940 (m): Failure to Provide Reasonable Accommodation - fails to state sufficient facts to constitute a cause of action against Defendants. Third Cause of Action: Disability Discrimination in Violation of Government Code §12940 (n): Failure to Engage in the Interactive Process. 3. Plaintiffs Third Cause of Action - Disability Discrimination in Violation of Government Code §12940 (n): Failure to Engage in the Interactive Process - fails fo state sufficient facts to constitute a cause of action against Defendants. Fourth Cause of Action: Retaliation in Violation of Government Code §12940 (h)) 4. Plaintiff’s Fourth Cause of Action - Retaliation in Violation of Government Code §12940 (h))- fails to state sufficient facts to constitute a cause of action against Defendants. Fifth Cause of Action: Failure to Do Everything Reasonably Necessary to Prevent Discrimination and Retaliation from Occurring in Violation of Government Code § 12940 (k) 5. Plaintiff’s Fifth Cause of Action - Failure to Do Everything Reasonably Necessary to Prevent Discrimination and Retaliation From Occurring in Violation of Government Code § 12940 (k) - fails to state sufficient facts to constitute a cause of action against Defendants, Sixth Cause of Action: Violation of Government Code § 12945.2 (a) of the California Family Rights Act 6. Plaintiff's Sixth Cause of Action - Violation of Government Code § 12945.2 (a) of the California Family Rights Act fails to state sufficient facts to constitute a cause of action against Defendants. 2 DEFENDANTS NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ASHLEIGH K, GIDEON; [PROPOSED] 28 h:\QG60658073 492\pldgs\dem urrer.docx Seventh Cause of Action: Retaliation for Taking/Requesting CFRA in Violation of Government Code § 12945.2 (1 7. Plaintiff's Seventh Cause of Action - Retaliation for Taking/Requesting CFRA in Violation of Government Code § 12945.2 (1) - fails to state sufficient facts to constitute a cause of action against Defendants. | Eighth Cause of Action: Wrongful Termination in Violation of Public Policy 8. Plaintiffs Eighth Cause of Action - Wrongful Termination in Violation of Public Policy - fails to state sufficient facts to constitute a cause of action against Defendant. This demurrer is based on this Notice, the attached Demurrer, Memorandum of Points and Authorities filed concurrently, and upon such oral and documentary evidence as may be presented by defendant upon the hearing of this demurrer, and any other matters of which the court may or must take judicial notice . Dated: March4 2019 BORTON PETRINI, LLP By ROSEMARIE S. LEWIS, ASHLEIGH K. GIDEON, Attorneys for Defendants LOTUS OXNARD CORP. and LOTUS COMMUNICATIONS CORPORATION 3 DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ASHLEIGH K. GIDEON; [PROPOSED] 2 L N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 h:\060658\073 492\pldgs\dem urrer.doex MEMORANDUM OF POINTS AND AUTHORITIES IL. INTRODUCTION Defendants, LOTUS OXNARD CORP, LOTUS COMMUNICATIONS CORPORATION, KIRN 670 AM SoCalPersian.Com, 670AM KIRN, and KIRN, (hereinafter “Defendants”) respectfully submit the following Memorandum of Points and Authorities in support of their Demurrer to plaintiff, SAHEL ALEMANSOUR’S (hereinafter “Plaintiff”) complaint for damages, All causes of action plead in Plaintiff’s complaint fail to state facts sufficient to sustain the respective claims against Defendants. IL FACTS Plaintiff began her employment with Defendants in August of 2000, as a salesperson and at the time of her termination was an account representative. (Plaintiff’s Complaint page 5, 431, lines 27-28.) Her job duties included making cold calls, selling radio commercial spot times, voicing commercials, writing commercials, inputting order, etc. (Plaintiff’s Complaint page 6, 932, lines 1-2.) According to her complaint, Plaintiff performed her duties in a satisfactory manner throughout her employment for Defendants. (Plaintiff’s Complaint page 6, 33, lines 3-4.) Plaintiff claims that on or around October 31, 2017 she suffered an occupational injury to her right knee. (Plaintiff’s Complaint page 6, 435, lines 8-9.) She alleges to have immediately reported the knee injury to Defendants, her supervisors, and her managers. (Plaintiff's Complaint page 6, 35, lines 8-10.) Further, Plaintiff contends that at all times since October 31, 2017 she provided Defendants with doctor’s notes regarding her disabilities, need for accommodations, and need for medical leave. (Plaintiff’s Complaint page 6, §36, lines 11-12.) Moreover, Plaintiff alleges that shortly after her knee injury she suffered from injuries to her right shoulder and underwent surgery in January of 2018. (Plaintiff’s Complaint page 6, 936, lines 11-12.) She claims to have notified Defendants of her need for medical leave and was placed on CFRA/FMLA leave starting on January 25, 2018. (Plaintiff’s Complaint page 6, 1 39-40 lines 22-25.) 4 DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ASHLEIGH K. GIDEON; [PROPOSED] 1 Plaintiff contends that at all times she provided Defendants with updated doctor’s notes 2| regarding her work status and around April 5, 2018 she provided an updated doctor’s note which 3| released her to work on May 5, 2018. (Plaintiff’s Complaint page 6-7, 1 41-42 lines 26-28, 1.) 4 On or around April 26, 2018, while Plaintiff was out on medical leave Defendants sent sl her a termination letter that stated the effective date of her termination was April 24, 2018. (Plaintiffs 6{| Complaint page 7, 43 lines 2-4.) 7 The complaint, for damages, contains eight causes of action alleging: Disability 8|| Discrimination in Violation of Government Code §12940 (a): Disparate Treatment Based on Disability 9|| and/or Perceived Disability, Disability Discrimination in Violation of Government Code §12940 (m): 10|| Failure to Provide Reasonable Accommodation, Disability Discrimination in Violation of Government 11|| Code §12940 (n): Failure to Engage in the Interactive Process, Retaliation in Violation of Government 12|| Code §12940 (h)), Failure to Do Everything Reasonably Necessary to Prevent Discrimination and 13/l Retaliation From Occurring in Violation of Government Code § 12940 (k), Violation of Government 14] Code § 12945.2 (a) of the California Family Rights Act, Retaliation for Taking/Requesting CFRA in 15! Violation of Government Code § 12945.2 (1), and Wrongful Termination in Violation of Public Policy. 16 As shown below, Plaintiff’s complaint fails to state facts sufficient as to all causes of 17|| action alleged in her complaint. 18 111. 19 A DEMURRER IS AN APPROPRIATE METHOD TO OBJECT TO A COMPLAINT THAT APPEARS ON ITS FACE WHEN THE 20 PLEADING DOES NOT STATE SUFFICIENT FACTS TO 21 CONSTITUTE A CAUSE OF ACTION. 22 The party against whom a complaint has been filed may object by demurrer as provided 23|/in Cal. Code Civ. Proc. §430.30, to the pleading. (Code Civ. Proc. 8430.10.) A party may object by 24] demurrer on the grounds that the pleading does not state facts sufficient to constitute a cause of action or 75|| is uncertain (Code Civ. Proc. §430.10(¢)). When any ground for objection to a complaint appears on the 26|| face thereof, the objection on that ground may be taken by a demurrer to the pleading. (Code Civ. Proc. 27|( §430.30.) A demurrer is used to test the legal sufficiency of other pleadings, i.e., it raises issues of law, ~gll not fact, regarding the form or content of the opposing party's pleading. (See Donabedian v. Mercury h:\0606581073 492\pldgs\dem 5 EEE DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ASHLEIGH K. GIDEON; [PROPOSED] pt 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 h:AO60658\073 492\pldgs\dem urrer.docx Ins. Co. (2004) 116 CA4th 968, 994.) A demurrer can be utilized where the complaint itself is incomplete or discloses some defense that would bar recovery. (Cardia North Bay, Inc. v. Sup. Ct. (Myers) (2001) 94 Cal. App.4th 963, 971-972.) Iv. ARGUMENT A. Plaintiffs Conclusory Allegations Fail to State a Claim for Disability Discrimination in Violation of Government Code §12940 (a) as to the First Cause of Action. Plaintiff’s Complaint alleges in her first cause of action, discrimination based on disability in violation of the FEHA. California Government Code §12940 (a) makes it unlawful to discharge a person from employment or discriminate against the person in the terms, conditions or privileges of employment because of a physical disability. In order to properly present a discrimination cause of action under the FEHA, Plaintiff must allege and prove all of the following essential factual elements: (1) that she was a member of a protected class; (2) that she was competently performing in the position held; (3) that she suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances suggesting a discriminatory motive. (See Gov. Code §12940(a); McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802. Cucuzza v. City of Santa Clara (2002) 104 Cal. App.4th 1031, 1038.) Here, there are no factual allegations in Plaintiff's Complaint that allege her termination on April 24, 2018 was motivated by or had anything to do with her perceived disability. Rather, Plaintiff generally alleges that her disability was a “motivating factor” with no facts presented to demonstrate, sustain, or establish that allegation. (Plaintiff’s Complaint page 8, §55, lines 20-22.) No event about which Plaintiff complains, other than her termination, constitutes an “adverse employment action”. While Plaintiff claims that discrimination occurred because she submitted a doctor’s note in April 2018, while out on medical leave, releasing her to return to work on May 5, 2018, these facts, even if true, do not establish the necessary nexus between Plaintiff’s disability and her termination. B. In the Second and Third Causes of Action, Plaintiff Does Not State Facts Sufficient to Constitute Causes of Action for Violation of Government Code §12940 (m) and Government Code §12940 (n). 6 DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ASHLEIGH K. GIDEON; [PROPOSED] 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 h:\060658\073 492\pldgs\dem urrer.docx The FEHA provides that it is an unlawful employment practice for an employer to fail to make reasonable accommodations for the known physical or mental disability of an applicant or employee (§12940(m)) and failing to engage in the interactive process (§12940(n)). Specifically, the FEHA requires employers to make reasonable accommodation for the known disabilities of applicants and employees to enable them to perform a position's essential functions, unless doing so would produce undue hardship to the employer's operations. (See Gov.C. § 12940(m); see Fisher v. Sup.Ct. (1986) 177 CA3d 779. 783.) “Reasonable accommodation” means that employers have an affirmative duty to accommodate disabled workers. (See Sargent v. Litton Systems, Inc. (ND CA 1994) 841 F.Supp. 956, 962.) The Second and Third Causes of Action to the Complaint fail to allege that Defendants did not accommodate Plaintiff for any known disability. Rather, Plaintiff even recognizes that she sought reasonable accommodations, and as such Defendants placed her on CFRA/FMLA leave starting on January 25, 2018. (Plaintiff’s Complaint page 6, 40, lines 24-25.) Plaintiff has not pointed to any evidence of alternative reasonable accommodations or instances where Defendant failed to provide her with such accommodations. Failure to engage in the good faith interactive process is unlawful only if a reasonable accommodation was possible. Further, this is a matter on which the employee bears the burden of proof. (See Nadaf-Rahroy v. Neiman Marcus Group, Inc., supra (2008)166 CA4dth at 981--982, 83 CR3d at 216-217). The employee's burden is to identify a reasonable accommodation that the interactive process should have produced. The employee must be able to identify an accommodation that was objectively available at the time the interactive process should have occurred. (Scotch v. Art Inst. of California- Orange County, Inc. (2009) 173 CA4th 986, 1018-1019.) Liability for failure to engage in the interactive process “hinges on the objective circumstances surrounding the parties ‘breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith.” (Scotch v. Art Institute of Cal., (2009) 173 Cal. App/ 4th 986, 1014) Plaintiff does not allege a single fact that Defendants failed to accommodate Plaintiff's disability or engage in the interactive process. Rather, as mentioned above, Defendants placed Plaintiff on CFRA/FMLA leave starting on January 25, 2018. 7 DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES, MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ASHLEIGH K. GIDEON; [PROPOSED] 0 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 h:\060658\073 492\pldgs\dem urrer.docx C. Plaintiff Does Not State Facts Sufficient to Constitute a Cause of Action for Retaliation in Violation of Government Code §12940 (h) in her Fourth Cause of Action. Government Code § 12940(h) prohibits an employer from retaliating against an employee because the employee opposed practices the FEHA prohibits, filed a complaint, testified or assisted in any FEHA proceeding. In order to properly present a retaliation cause of action under the FEHA, Plaintiff must allege and prove all of the following essential factual elements; (1) that she engaged in a protected activity; (2) that she was subjected to an adverse employment action; and (3) that there is a causal link between the protected activity and the adverse employment action. (See Gov. Code § 12940(h); Miller v. Dept. of Corr. (2005) 36 Cal.4th 446, 472.) Plaintiff contends in her Fourth Cause of Action that she was terminated because she “complained about and/or reported to DEFENDANTS the failure to accommodate, failure to engage in a good faith interactive process and/or the denial and/or interference with CFRA leave.” (Plaintiff’s Complaint page 13, 95, lines 22-24.) This contention does not suffice to establish a retaliation claim under FEHA which required an employee to show that she was subjected to an adverse employment practice because she filed a FEHA complaint, testified in or participated in a FEHA investigation or proceeding, or opposed what she reasonably believed to be unlawful employment practices of her employer. (Yanowitz v. L'oreal USA, Inc., (2005) 36 Cal. 4th 1028.) In Rope v. Auto-Chlor System of Washington, Inc.(2013) 220 Cal. App. 4th 635, the plaintiff’s claim for FEHA retaliation was based on the fact that his request for paid medical leave was repeatedly denied by his employer. (Id. at 651.) In affirming the demurrer, the Court of Appeal stated that it found “no support in the regulations or case law for the proposition that a mere requests- or even repeated requests- for an accommodation, without more, constitutes protected activity sufficient to support a claim for retaliation in violation of FEHA. (Jd. at 652.) To the contrary, under Government Code section 12940 (h), a plaintiff must “demonstrate some degree of opposition to or protest of the employer’s conduct or practices based on the employee’s reasonable belief that the employer’s action or practice is unlawful. (/d. at 652-653) As in Rope, plaintiff never made a protected complaint and her FEHA retaliation claim is solely based on allegations that Defendants denied her rights she was purportedly entitled to under 8 DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ASHLEIGH K. GIDEON; [PROPOSED] 1|l FEHA in connection with her disability. Thus, Plaintiffs complaint does not state facts sufficient to establish a retaliation claim as she has not opposed any conduct forbidden by the FEHA. bo D. Plaintiff’s Fifth Cause of Action Does Not State Facts Sufficient to Constitute Failure to “Do Everything Reasonably Necessary to Prevent Discrimination and Retaliation From H W Occurring in Violation of Government Code § 12940 (k)”. Government Code §12940(k) provides that it is an unlawful employment practice for an employer to fail to take all reasonable steps necessary to prevent discrimination and harassment from e T EE occurring. As with sexual harassment claims, an employer has a duty to prevent and remedy instances of discrimination. However, “courts have required a finding of actual discrimination or harassment under \o 10|| FEHA before a plaintiff may prevail under section 12940, subdivision (k).” (Dickson v. Burke Williams, 11 Ine. (2015) 234 Cal. App.4th 1307, 1314 [184 Cal.Rptr.3d 774].) 12 Here, as alluded to above, Plaintiff’s Fifth Cause of Action fails to state a cause of action 13|| for discrimination or harassment under FEHA. There are no factual allegations that Plaintiff was 14|| mistreated because of her disability. As no discrimination occurred, defendants could not fail to do 15|| everything reasonably necessary to prevent discrimination or retaliation. 16 Therefore, as Plaintiff has failed to state facts sufficient to constitute a cause of action for 17|| discrimination, a cause of action under Government Code §12940(k) likewise fails. 18 E. Plaintiff’s Sixth Cause of Action Fails to State Facts Sufficient to Constitute a 19] Violation of Government Code § 12945.2 (a) of the California Family Rights Act. 20 California Government Code section 12945.2 makes it unlawful for employers to refuse 21} to grant certain employees a request to take up to a total of 12 workweeks in any 12-month period for 22] family care and medical leave. In order to prove a violation of California Government Code section 2311 12945.2, Plaintiff must show: (1) that she was eligible for medical leave; (2) that she requested/took 24|| medical leave; and (3) her request for medical leave was a substantial motivating reason for her 25|| termination. 26 Here, Plaintiff’s Sixth Cause of Action fails to has not identify any facts to support a 27|| claim that her request for medical leave was a substantially motivating reason for her termination. 28|| Rather, Plaintiff contradicts herself and alleges that “EMPLOYER refused to grant PLAINTIFF leave h:\060658\073 492\pldgs\dem 9 ues floa DEFENDANTS! NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ASHLEIGH K. GIDEON; [PROPOSED] c o \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 h:\060658073 492\pldgsidem urrer.docx for her to tend to her on serious health condition” but then previously alleges that she was placed on CFRA leave on January 25, 2018. This is factually uncontested. (Plaintiff’s Complaint, page 17, 4 125, lines 12-15; Page 6, 9 40, line 24-25). Nonetheless, Plaintiff fails to state facts sufficient to sustain an allegation that her request for and taking of CFRA leave was the reason for her termination. F. Plaintiff Seventh Cause of Action Does Not State Facts Sufficient to Constitute Retaliation for Taking/Requesting CFRA in Violation of Government Code §12945.2(1). In order to prevail on a claim for retaliation under Government Code section 12945.2, Plaintiff must show that: (1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, because of her exercise of her right to CFRA leave. (Dudley v. Department of Transportation, (2001) 90 Cal. App. 4th 262) The gravamen of Plaintiff's Seventh Cause of Action under subdivision (1)(1) of Government Code section 12945.2 is the employer's adverse action against the employee in retaliation for the employee's exercise of her right to CFRA leave. Such adverse employment action may take the form of discharge from employment, fine, suspension, expulsion, or other adverse discriminatory actions. (Gov. Code, § 12945.2, subd. (1)(1)). Here, plaintiff has alleged that Defendants “refused to grant (her) leave for (her) to tend to her own serious health condition and/or refused return (her) to the same or comparable job. Instead, EMPLOYER, acting through its managing agents, terminated (her) employment.” (Plaintiff’s Complaint, page 18, q 136, lines 23-26). These facts, even if taken as true, are not sufficient to constitute a cause of action for retaliation in violation of CFRA. Construed in the light most favorable to plaintiff, her complaint cannot be read to allege that Defendant took any form of adverse action against her because she exercised her right to CFRA leave. G. Plaintiff Does Not State Facts Sufficient to Constitute an Eighth Cause of Action for Wrongful Termination in Violation of Public Policy. 10 DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ASHLEIGH K. GIDEON; [PROPOSED] 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 h\G60658G73 492\pldgs\dem urrer,docx Although employees are generally terminable at will (Cal. Lab. Code § 2922), California courts recognize a narrow exception to this rule; “(A)n employer's traditional broad authority to discharge an at-will employee may be limited by statute ... or by consideration of public policy.” (Tameny v. Atlantic Richfield Co., 27 Cal. 3d 167, 172 (1980)). To establish a claim for wrongful termination or retaliation in violation of public policy, a plaintiff must plead and prove: (1) an employer-employee relationship; (2) termination or other adverse employment action; (3) the termination of plaintiff's employment was a violation of public policy; (4) the termination was a legal cause of plaintiff's damages; and (5) the nature and extent of plaintiff's damages. (Holmes v. General Dynamics Corp., 17 Cal. App. 4th 1418, 142 (1993).) As discussed, Plaintiff has not pled any facts sufficient to constitute a cause of action for any violations of FEHA or the Labor Code. Therefore, there is no statutory or public policy that was allegedly violated by Defendants. The existence of a pertinent public policy is crucial to a wrongful termination claim. (Zameny, supra, at 169.) It is the plaintiff's burden to provide the specific statutes and regulations on which the claim is based and failure to do so is fatal to the case of action. (Green v. Ralee Eng, Co., 19 Cal. 4th 66, 84 (1998)). As Plaintiff has failed to meet her burden, this cause of action fails. V1 CONCLUSION For the reasons set forth above, Defendant respectfully requests that the Court sustain Defendant’s demurrer. Dated: March 2{ , 2019 BORTON PETRINI, LLP Pe ROSEMARIE S. LEWIS, ASHLEIGH K. GIDEON, Attorneys for Defendants LOTUS OXNARD CORP. and LOTUS COMMUNICATIONS CORPORATION By 11 DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ASHLEIGH K. GIDEON; [PROPOSED] DECLARATION OF ASHLEY GIDEON 1 DECLARATION OF ASHLEIGH K. GIDEON 2|| I, Ashleigh K. Gideon, declare as follows: 3 1. I have personal knowledge of the facts set forth in this declaration and if called as a witness could and would competently testify thereto. I am an attorney at law duly licensed to practice BS before all of the courts of the State of California. I am an associate with the law firm Borton Petrini, LLP, attorneys of record for Defendants LOTUS OXNARD CORP and LOTUS COMMUNICATIONS CORPORATION in this action. I submit this declaration in support of Defendants Demurrer to Plaintiffs Complaint and pursuant to California Code of Civil Procedure §430.41. OO 0 ~~ O N Wh 2. On March 14, 2019, I initially contacted Plaintiff’s counsel to arrange for a time to meet 10{| and confer regarding our intention to bring a demurrer against the Complaint and outlined the reasons 11|| for the demurrer. A true and correct copy of this email is attached as Exhibit “A.” 12 3. As I did not hear back, I contacted plaintiffs office via telephone on March 15, 2019 at 13]19:51 a.m. and was told Ms. Shu was unavailable but was given her voicemail, which was full. As such, I 14|| immediately called back and was told by Gaby from plaintiff’s counsel’s office that she would email 15{ Ms. Shu and have her contact me at her earliest convenience. 16 4. Nonetheless, I wanted to personally follow up, so I sent plaintiff's counsel an email on 17[| March 15, 2019 at 9:56 a.m. to again request a time to meet and confer. A true and correct copy of this 18] email is attached as Exhibit “B.” 19 3 As I did not hear back, I once again contacted plaintiff's counsel’s office via telephone at 20} 3:06 p.m. on March 15, 2019 but was told Ms. Shu was unavailable and could only be contacted via 21|| email. 22 6. Therefore, on March 15, 2019 1 sent plaintiff's counsel a final correspondence in a last 23|| attempt to meet and confer regarding the fling of this demurrer. A true and correct copy of that 24] correspondence is attached as Exhibit “C.” 25 7. 1 did not hear back from Plaintiff’s counsel until after the close of business on March 15, 26/2019 when Ms. Shu emailed me indicating that she could meet and confer on March 18, 2019. A true 27] and correct copy of this email correspondence is attached as Exhibit “D.” 28 8. Thereafter, on March 18, 2019 Ms. Shu contacted me via email to inform me that she had h:\B60658'073 492\pldgs\dem 12 wrrer.docx DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ASHLEIGH K. GIDEON; [PROPOSED] 1{ to cancel our scheduled meet and confer and continue it to March 19, 2019. A true and correct copy of 2|| this email is attached as Exhibit “E.” 3 9. | As such, 1 spoke with opposing counsel on March 19, 2019 regarding the issues raised in this demurrer. During this conversation, opposing counsel informed me that she had not yet received my final meet and confer correspondence from March 15, 2019 and would like a courtesy copy in order to respond by the end of the day March 16, 2019. As such, immediately upon completion of our telephonic meet and confer, I forwarded the March 15, 2019 correspondence along with a confirming email reiterating the contents of our conversation to plaintiff’s counsel. A true and correct copy of this email O e 3 N h BD correspondence is attached as Exhibit “F.” Notwithstanding the above, all parties were unable to come 10|| to a resolution during our conversation. 11 10. On March 20, 2019, at the close of business, Plaintiff’s counsel emailed me her response 12] to our meet and confer correspondence reiterating her position in regards to the demurrer. A true and 13] correct copy of this correspondence is attached as Exhibit “G.” 14 I declare under penalty of perjury under the laws of the State of California that the 15 following is true and correct and that this declaration was executed on this 21st day of March, 2019 at 19 Los Angeles, California. 17 : al 19 Ashleigh K. Gideon, Declarant 20 21 22 23 24 25 26 27 28 h:\060658\073 492\pldgs\dem 13 Tr DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ASHLEIGH K. GIDEON; [PROPOSED] EXHIBIT “A” From: Ashleigh Gideon To: "Tielle Shu"; Nick Ebrahimian. Cc: Rose Lewis; Hlva Loaiza; Barbara Gonzales Subject: Alemansour v. Lotus Oxnard Corp(60658/73795) Date: Thursday, March 14, 2015 8:16:00 AM Good morning counsel, I am writing in an effort to comply with CCP Section 430.41 with regards to the demurrer we intend to file on behalf of Defendants. As you know, section 430.41 requires the parties, five days prior to the filing of the demurrer, to discuss the reasons why the demurring party believes the pleading is defective and determine whether an agreement can be reached that would resolve the objections to be raised in the demurrer. As explained below, all eight causes of action alleged in your complaint fail to constitute a cause of action against Defendants. e First Cause of Action: Disability Discrimination in Violation of Government Code §12940 (a): Disparate Treatment Based on Disability and/or Perceived Disability o In order to properly present a discrimination cause of action under the FEHA, your client must allege and prove all of the following essential factual elements: (1) that she was a member of a protected class; (2) that she was competently performing in the position held; (3) that she suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances suggesting a discriminatory motive. (See Gov. Code §12940(a); McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802. Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.) o There are no factual allegations in your client's Complaint that allege her termination on April 24, 2018 was motivated by or had anything to do with her perceived disability. Rather, she generally alleges that her disability was a “motivating factor” with no facts presented to demonstrate, sustain, or establish that allegation. » Second Cause of Action: Disability Discrimination in Violation of Government Code §12940 (m): Failure to Provide Reasonable Accommodation; Third Cause of Action: Disability Discrimination in Violation of Government Code §12940 (n): Failure to Engage in the Interactive Process o The FEHA provides that it is an unlawful employment practice for an employer to fail to make reasonable accommodations for the known physical or mental disability of an employee (§12940(m)) and fail to engage in the interactive process (§12540(n}). o Failure to engage in the good faith interactive process is unlawful only if a reasonable accommodation was possible. Your client bears the burden of proof. (See Nadaf- Rahroy v. Neiman Marcus Group, Inc., supra (2008)166 CA4th at 981--982, 83 CR3d at 216-217). The employee's burden is to identify a reasonable accommodation that the interactive process should have produced. The employee must be able to identify an accommodation that was objectively available at the time the interactive process should have occurred. (Scotch v. Art Inst. of California-Orange County, Inc. (2009) 173 CA4th 986, 1018-1019.) o Your client fails to allege that Defendants did not accommodate her for any known disability. Rather, she even recognizes that she sought reasonable accommodations, and as such Defendants placed her on CFRA/FMLA leave starting on January 25, 2018. Further, your client has not identified an alternate reasonable accommodation that the interactive process should have produced. Fourth Cause of Action: Retaliation in Violation of Government Code §12540 {h) o In order to properly present a retaliation cause of action under the FEHA, Plaintiff must allege and prove all of the following essential factual elements; (1) that she engaged in a protected activity; (2) that she was subjected to an adverse employment action; and (3) that there is a causal link between the protected activity and the adverse employment action. See Gov. Code § 12940(h); Miller v. Dept. of Corr. (2005) 36 Cal.4th 446, 472. o Your client never made a protected complaint and her FEHA retaliation claim is solely based on allegations that Defendants denied her rights she was purportedly entitled to under FEHA in connection with her disability. Thus, Plaintiff's complaint does not state facts sufficient to establish a retaliation claim as she has not opposed any conduct forbidden by the FEHA. e Fifth Cause of Action: Failure to Do Everything Reasonably Necessary to Prevent Discrimination and Retaliation From Occurring in Violation of Government Code § 12940 (k) o Government Code §12940(k) provides that it is an unlawful employment practice for an employer to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. o As your client has not plead sufficient factual allegations that she was mistreated because of her disability, Defendants could not have failed to take reasonable steps necessary to prevent discrimination, as no discrimination occurred. Sixth Cause of Action: Violation of Government Code § 12945.2 (a) of the California Family Rights Act o In order to prove a violation of California Government Code section 12945.2, Plaintiff must show: (1) that she was eligible for medical leave; (2) that she requested/took medical leave; and (3) her request for medical leave was a substantial motivating reason for her termination. o Here, your client does not identify any facts to support a claim that her request for medical leave was a substantial motivating reason for her termination. s Seventh Cause of Action: Retaliation for Taking/Requesting CFRA in Violation of Government Code § 12945.2 {1} o In order to prevail on a claim for retaliation under Government Code section 12945.2, Plaintiff must show that: {1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and {4} the plaintiff suffered an adverse employment action, such as termination, because of her exercise of her right to CFRA leave. (Dudley v. Department of Transportation, (2001) 90 Cal. App. 4th 262) o Here, plaintiff has alleged that Defendants “refused to grant (her) leave for (her) to tend to her own serious health condition and/or refused return (her) to the same or comparable job. Instead, EMPLOYER, acting through its managing agents, terminated (her) employment.” These facts, even if taken as true, are not sufficient to constitute a cause of action for retaliation in violation of CFRA. Construed in the light most favorable to plaintiff, her complaint cannot be read to allege that Defendant took any form of adverse action against her because she exercised her right to CFRA leave. e Eighth Cause of Action: Wrongful Termination in Violation of Public Policy o To establish a claim for wrongful termination or retaliation in violation of public policy, a plaintiff must plead and prove: (1) an employer-employee relationship; (2) termination or other adverse employment action; (3) the termination of plaintiff's employment was a violation of public policy; (4) the termination was a legal cause of plaintiff's damages; and (5) the nature and extent of plaintiff's damages. {Holmes v. General Dynamics Corp., 17 Cal. App. 4th 1418, 142 (1993).) o As mentioned above, your client has not pled any facts sufficient to constitute a cause of action for any violations of FEHA. Therefore, there is no statutory or public policy that was allegedly violated by Defendants. o The existence of a pertinent public policy is crucial to a wrongful termination claim. It is the plaintiff's burden to provide the specific statutes and regulations on which the claim is based and failure to do so is fatal to the cause of action. (Green v. Ralee Eng Co., 19 Cal. 4th 66, 84 (1998). Please let me know your position on this as we are required to meet and confer in person or by telephone. | am available for a telephonic conference today, April 14, 2019 from 1:30 p.m. to 4:00 p.m. or anytime Friday, March 15, 2019 from 3:00 p.m. to 4:00 p.m. Thank you in advance for anticipated cooperation. Best, Ashleigh Gideon 626 Wilshire Boulevard, Suite 975 Los Angeles, CA 90017 tel: (213) 624-2869 fax: (213) 489-3930 Bakersfield IRI) Visit Our Website! Modesto Orange County (661) 322-3051 1" (559) 268-0117 www.bortongetrini.com PL NY dee (562) 596-2300 Stor: pala Ho) San Bemardine San Diego San Francisco San Jose (816) 858-1212 (909) 381-0527 (618) 232-2424 (415) 677-0730 (CIR YE “Serving California Businesses for Over 110 Years" CONFIDENTIALITY NOTICE: This communication and any accompanying document(s) are confidential and privileged. They are intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying, or distribution, or the taking of any action in reliance upon the communication is strictly prohibited. Any inadvertent disclosure shall not compromise or waive the attorney- client privilege and/or attorney work-product privilege as fo this communication, any attachments or otherwise. if you have received this communication in error, please contact Ashleigh Gideon at agideon@bortonpetrini.com or by telephone at (213) 624-2869 x2526. This e-mail address is not valid for delivery of legal notices or legal mail. Thank you. EXHIBIT “B” From: Ashleigh Gideon To: elle shu; “Nick Ebrahimian® Cc: Rose Lewis; Elva Loaiza; Barbara Gonzales Subject: RE: Alemansour v. Lotus Oxnard Corp(60658/73795) Date: Friday, March 15, 2019 9:56:00 AM Good morning Tielle, | just attempted to leave a voicemail for you at your office, but was unable to due to your mailbox being full. However, | did leave a message and my call back information with Gaby from your office who informed me she would be reaching out to you via email. Nonetheless, | wanted to personally follow up to the below email regarding my intention to comply with CCP Section 430.41 with regards to the demurrer we intend to file on March 21, 2019 on behalf of Defendants. If you could please give me a call back at your earliest convenience | would greatly appreciate it as today would be the five day deadline to meet and confer pursuant to statute. Best, Ashleigh From: Ashleigh Gideon Sent: Thursday, March 14, 2019 8:17 AM To: Tielle Shu’; Nick Ebrahimian Cc: Rose Lewis; Elva Loaiza; Barbara Gonzales Subject: Alemansour v. Lotus Oxnard Corp(60658/73795) Good morning counsel, I am writing in an effort to comply with CCP Section 430.41 with regards to the demurrer we intend to file on behalf of Defendants. As you know, section 430.41 requires the parties, five days prior to the filing of the demurrer, to discuss the reasons why the demurring party believes the pleading is defective and determine whether an agreement can be reached that would resolve the objections to be raised in the demurrer. As explained below, all eight causes of action alieged in your complaint fail to constitute a cause of action against Defendants. e First Cause of Action: Disability Discrimination in Violation of Government Code §12940 (a): Disparate Treatment Based on Disability and/or Perceived Disability o In order to properly present a discrimination cause of action under the FEHA, your client must allege and prove all of the following essential factual elements: (1) that she was a member of a protected class; (2) that she was competently performing in the position held; (3) that she suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances suggesting a discriminatory motive, (See Gov. Code §12940(a); McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802. Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.) o There are no factual allegations in your client's Complaint that allege her termination on April 24, 2018 was motivated by or had anything to do with her perceived disability. Rather, she generally alleges that her disability was a “motivating factor” with no facts presented to demonstrate, sustain, or establish that allegation. Second Cause of Action: Disability Discrimination in Violation of Government Code §12940 (m}: Failure to Provide Reasonable Accommodation; Third Cause of Action: Disability Discrimination in Violation of Government Code §12940 (n): Failure to Engage in the Interactive Process o The FEHA provides that it is an unlawful employment practice for an employer to fail to make reasonable accommodations for the known physical or mental disability of an employee (§12940(m)) and fail to engage in the interactive process (§125940(n)). o Failure to engage in the good faith interactive process is unlawful only if a reasonable accommodation was possible. Your client bears the burden of proof. {See Nadaf- Rahroy v. Neiman Marcus Group, Inc., supra (2008)166 CA4th at 981--982, 83 CR3d at 216-217). The employee's burden is to identify a reasonable accommodation that the interactive process should have produced. The employee must be able to identify an accommodation that was objectively available at the time the interactive process should have occurred. {Scotch v. Art Inst. of California-Orange County, Inc. (2009) 173 CA4th 986, 1018-1019.) o Your client fails to allege that Defendants did not accommodate her for any known disability. Rather, she even recognizes that she sought reasonable accommodations, and as such Defendants placed her on CFRA/FMLA leave starting on January 25, 2018. Further, your client has not identified an alternate reasonable accommodation that the interactive process should have produced. Fourth Cause of Action: Retaliation in Violation of Government Code §12940 {h) o In order to properly present a retaliation cause of action under the FEHA, Plaintiff must allege and prove all of the following essential factual elements; (1) that she engaged in a protected activity; (2) that she was subjected to an adverse employment action; and (3) that there is a causal link between the protected activity and the adverse employment action. See Gov. Code § 12940(h); Miller v. Dept. of Corr. (2005) 36 Cal.4th 446, 472. o Your client never made a protected complaint and her FEHA retaliation claim is solely based on allegations that Defendants denied her rights she was purportedly entitled to under FEHA in connection with her disability. Thus, Plaintiff's complaint does not state facts sufficient to establish a retaliation claim as she has not opposed any conduct forbidden by the FEHA, Fifth Cause of Action: Failure to Do Everything Reasonably Necessary to Prevent Discrimination and Retaliation From Occurring in Violation of Government Code § 12940 (k) o Government Code §12940(k) provides that it is an unlawful employment practice for an employer to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. o As your client has not plead sufficient factual allegations that she was mistreated because of her disability, Defendants could not have failed to take reasonable steps necessary to prevent discrimination, as no discrimination occurred. Sixth Cause of Action: Violation of Government Code § 12945.2 (a) of the California Family Rights Act o In order to prove a violation of California Government Code section 12945.2, Plaintiff must show: (1) that she was eligible for medical leave; (2) that she requested/took medical leave; and (3) her request for medical leave was a substantial motivating reason for her termination. o Here, your client does not identify any facts to support a claim that her request for medical leave was a substantial motivating reason for her termination, Seventh Cause of Action: Retaliation for Taking/Requesting CFRA in Violation of Government Code § 12945.2 {I} o In order to prevail on a claim for retaliation under Government Code section 12945.2, Plaintiff must show that: {1) the defendant was an employer covered by CFRA; {2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, because of her exercise of her right to CFRA leave. (Dudley v. Department of Transportation, (2001) 90 Cal. App. 4th 262) o Here, plaintiff has alleged that Defendants “refused to grant (her) leave for (her) to tend to her own serious health condition and/or refused return (her) to the same or comparable job. Instead, EMPLOYER, acting through its managing agents, terminated (her) employment.” These facts, even if taken as true, are not sufficient to constitute a cause of action for retaliation in violation of CFRA. Construed in the light most favorable to plaintiff, her complaint cannot be read to allege that Defendant took any form of adverse action against her because she exercised her right to CFRA leave. Eighth Cause of Action: Wrongful Termination in Violation of Public Policy o To establish a claim for wrongful termination or retaliation in violation of public policy, a plaintiff must plead and prove: (1) an employer-employee relationship; (2) termination or other adverse employment action; (3}.the termination of plaintiff's employment was a violation of public policy; (4) the termination was a legal cause of plaintiff's damages; and (5) the nature and extent of plaintiff's damages. (Holmes v. General Dynamics Corp., 17 Cal. App. 4th 1418, 142 (1993).) o As mentioned above, your client has not pled any facts sufficient to constitute a cause of action for any violations of FEHA. Therefore, there is no statutory or public policy that was allegedly violated by Defendants. o The existence of a pertinent public policy is crucial to a wrongful termination claim. It is the plaintiff's burden to provide the specific statutes and regulations on which the claim is based and failure to do so is fatal to the cause of action. (Green v. Ralee Eng Co., 19 Cal. 4th 66, 84 (1998). Please let me know your position on this as we are required to meet and confer in person or by telephone. | am available for a telephonic conference today, April 14, 2019 from 1:30 p.m. to 4:00 p.m. or anytime Friday, March 15, 2019 from 9:00 p.m. to 4:00 p.m. Thank you in advance for anticipated cooperation. Best, EW Ba ET Los Angeles, CA 90017 tel: (213) 624-2869 fax: (213) 489-3930 Bakersfield Fresno Visit Our Website! Modesto (661) 322-3051 (559) 268-0117 www.bortonpetrini.com (PA Ry RUN San Diego San Francisco (619) 232-2424 (415) 877-0730 Sacramento San Bernardino (916) 858-1212 (909) 381-0527 "Serving California Businesses for Dver 110 Years" Orange County {562) 596-2300 San Jose (408) 535-D870 CONFIDENTIALITY NOTICE: This communication and any accompanying document(s} are confidential and privileged. They are intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying, or distribution, or the taking of any action in reliance upon the communication is strictly prohibited. Any inadvertent disclosure shall not compromise or waive the attorney- client privilege and/or attomey work-product privilege as to this communication, any attachments or otherwise. If you have received this communication in error, please contact Ashleigh Gideon at agideon@bortonpetrini.com or by telephone at (213) 624-2869 x2526. This e-mail address is not valid for delivery of legal notices or legal mail. Thank you. EXHIBIT “C” REGIONAL. OFFICES BAKERSFIELD TELEPHONE (88% 322-3051 FAX (66 Dp 322-4626 FRESNO TELEPHONE (559) 268-0117 FAX {550} 237-7005 MODESTO TELEPHONE (208) 578-170) FAX (208) 57-9753 ORANGE COLINTY TELEPHONE (E62) BR6-2300 FAX (662) 508-2322 SACRAMENTO TELEPHONE (38) B68: 12 12 FAX (BB) BEB- 262 LAW OFFICES OF BORTON PETRINI, LLP 626 WILSHIRE BOULEVARD SURE 875 LOS ANGELES, CALIFORNIA 90017 (213) 624-2869 ‘FAX; (2 13) 489-3930 EMAIL: BPLA@SBORTONPETRINI. COM WEB SITE: Www, BORTONPETRINI COM F.E. BORTON (1877-1948) JAMES PETRINI (1887-1278) HARRY M, CONRON (1907-197 1) RICHARD E, HITCHCOCK (1825-2001) JOHN F. PETRINI (1 844-2008} REGIONAL OFFICES SAM BERNARRINO TELEPHONE (808) 38 0827 FAX (805) 38 FO568 SAN DIEGO TELEFHONE (6K) 232-2424 FAX ts » 653 jo794 SAN FRANCISCO TELEFHONE (4 5) 877-0730 FAX (415) 877-0737 SAN JOSE TELEPHONE (408) 535-0870 FAX (408) 535-0878 IN REFLY REFER TO OUR FILE NO, Los Angeles 060658/073492 March 15, 2019 Nick Ebrahimian, Esq. Tielle Shu, Esq. LAW OFFICES OF LAVI & EBRAHIMIAN, LLP 8889 W. Olympic Blvd., Suite 200 Beverly Hills. California 90211 Re: Alemansour v, Lotus Oxnard Corp. Dear Counsel: This correspondence in intended to be a good faith effort to meet and confer regarding our intention to demurrer to the Complaint in this matter, in accordance with California Code of Civil Procedure § 430.41. We have made several efforts to meet and confer with you by phone and email regarding our grounds for the demurrer, but have been unable to reach you. We initially reached out to you both via email on March 14, 2019 to arrange for a time to meet and confer regarding our intention to bring a demurrer against the Complaint and outlined the reasons for the demurrer. As we did not hear back, we contacted your office on March 15, 2019 at 9:51 a.m. and were told Ms. Shu was unavailable but were given her voicemail, which was full. As such, we immediately called back and were told by Gaby from your office that she would email Mr. Shu and have her contact us at her earliest convenience. Nonetheless, we wanted to personally follow up, so we sent you both an email at 9:57 a.m. to again request a time to meet and confer. As we did not hear back, we once again contacted your office via telephone at 3:06 p.m. but were told Ms. Shu was unavailable and could only be contacted via email. Thus, we are providing you the basis of our demurrer through this written correspondence. Our demurrer will be directed at all eight causes of action in the Complaint on the grounds that all causes of action fail to state facts sufficient to state a cause of action against Defendants as outlined below. 031519 COTOCN BORTON PETRINI, LLP LAW OFFICES OF LAV] & EBRAHIMIAN, LLP ‘March 15, 2019 Page 2 L First Cause of Action: Disability Discrimination in Violation of Government Code §12940 (a): Disparate Treatment Based on Disability and/or Perceived Disability In order to properly present a discrimination cause of action under the FEHA, your client must allege and prove all of the following essential factual elements: (1) that she was a member of a protected class; (2) that she was competently performing in the position held; (3) that she suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances suggesting a discriminatory motive. (See Gov. Code §12940(a); McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802. Cucuzza v. City of Santa Clara (2002) 104 Cal. App.4th 1031, 1038.) There are no factual allegations in your client’s Complaint that allege her termination on April 24, 2018 was motivated by or had anything to do with her perceived disability. Rather, she generally alleges that her disability was a “motivating factor” with no facts presented to demonstrate, sustain, or establish that allegation. IL Second Cause of Action: Disability Discrimination in Violation of Government Code §12940 (m): Failure to Provide Reasonable Accommodation; Third Cause of Action: Disability Discrimination in Violation of Government Code §12940 (n): Failure to Engage in the Interactive Process The FEHA provides that it is an unlawful employment practice for an employer to fail to make reasonable accommodations for the known physical or mental disability of an employee (§12940(m)) and fail to engage in the interactive process (§12940(n)). Failure to engage in the good faith interactive process is unlawful only if a reasonable accommodation was possible. Your client, as the employee, bears the burden of proof. (See Nadaf-Rahroy v. Neiman Marcus Group, Inc., (2008)166 CA4th at 981-982). The employee must be able to identify an accommodation that was objectively available at the time the interactive process should have occurred. (Scotch v. Art Inst. of California-Orange County, Inc. (2009) 173 CA4th 986, 1018-1019.) Your client fails to allege that Defendants did not accommodate her for any known disability. Rather, she even recognizes that she sought reasonable accommodations, and as such Defendants placed her on CFRA/FMLA leave starting on January 25, 2018. Further, your client has not identified an alternate reasonable accommodation that was objectively available at the time the interactive process should have occurred. Therefore, . your client has not plead facts sufficient to constitute a cause of action under Government Code Section 12940(m) or 12940(n). 031519 COTOCN BORTON FPETRINI, LLP LAW OFFICES OF LAVI & EBRAHIMIAN, LLP March 15, 2019 Page 3 1. Fourth Cause of Action: Retaliation in Violation of Government Code §12940 (h) In order to properly present a retaliation cause of action under the FEHA, your client must allege and prove all of the following essential factual elements: (1) that she engaged in a protected activity; (2) that she was subjected to an adverse employment action; and (3) that there is a causal link between the protected activity and the adverse employment action. (See Gov. Code § 12940(h); Miller v. Dept. of Corr. (2005) 36 Cal. 4th 446, 472.) Your client never made a protected complaint and her FEHA retaliation claim is solely based on allegations that Defendants denied her rights she was purportedly entitled to under FEHA in connection with her disability. Thus, Plaintiff's complaint does not state facts sufficient to establish a retaliation claim as she has not opposed any conduct forbidden by the FEHA. Iv. Fifth Cause of Action: Failure to Do Everything Reasonably Necessary to Prevent Discrimination and Retaliation from Occurring in Violation of Government Code § 12940 (Ie) Government Code §12940(k) provides that it is an unlawful employment practice for an employer to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. As your client has not plead sufficient factual allegations that she was mistreated because of her disability, Defendants could not have failed to take reasonable steps necessary to prevent discrimination, as no discrimination occurred. Vv. Sixth Cause of Action: Violation of Government Code § 12945.2 (a) of the California Family Rights Act In order to prove a violation of California Government Code section 12945.2, your client must show: (1) that she was eligible for medical leave; (2) that she requested/took medical leave; and (3) her request for medical leave was a substantial motivating reason for her termination. Here, as alluded to above, your client does not identify any facts to support a claim that her request for medical leave was a substantial motivating reason for her termination. 031518 COTOCN BORTON PETRINI, LLP LAW OFFICES OF LAVI & EBRAHIMIAN, LLP March 15, 2019 Page 4 VL Seventh Cause of Action: Retaliation for Taking/Requesting CFRA in Violation of Government Code § 12945.2 (I) In order to prevail on a claim for retaliation under Government Code section 12945.2, your client must show that: (1) the defendant was an employer covered by CFRA; (2) she was an employee eligible to take CFRA leave; (3) she exercised her right to take leave for a qualifying CFRA purpose; and (4) she suffered an adverse employment action, such as termination, because of her exercise of her right to CFRA leave. (Dudley v. Department of Transportation, (2001) 90 Cal. App. 4th 262) Here, your client has alleged that Defendants “refused to grant (her) leave for (her) to tend to her own serious health condition and/or refused return (her) to the same or comparable job. Instead, EMPLOYER, acting through its managing agents, terminated (her) employment.” These facts, even if taken as true, are not sufficient to constitute a cause of action for retaliation in violation of CFRA. Construed in the light most favorable to your client, her complaint cannot be read fo allege that Defendant took any form of adverse action against her because she exercised her right to CERA leave. VIL Eighth Cause of Action: Wrongful Termination in Violation of Public Policy To establish a claim for wrongful termination or retaliation in violation of public policy, your client must plead and prove: (1) an employer-employee relationship; (2) termination or other adverse employment action; (3) the termination of her employment was a violation of public policy; (4) the termination was a legal cause of her damages; and (5) the nature and extent of her damages. (Holmes v. General Dynamics Corp., 17 Cal. App. 4th 1418, 142 (1993).) As mentioned above, your client has not pled any facts sufficient to constitute a cause of action for any violations of FEHA. Therefore, there is no statutory or public policy that was allegedly violated by Defendants. The existence of a pertinent public policy is crucial to a wrongful termination claim. It is the plaintiff's burden to provide the specific statutes and regulations on which the claim is based and failure to do so is fatal to the cause of action. (Green v. Ralee Eng Co., 19 Cal. 4th 66, 84 (1998)). Furthermore, your client has not plead the nature and extent of her damages. Therefore, her eighth cause of action does not state facts sufficient to establish a cause of action against Defendants. 031519 COTQCN BORTON PETRINI, LLP LAW OFFICES OF LAVI & EBRAHIMIAN, LLP March 15, 2019 Page 5 VIIL CONCLUSION Based on the foregoing grounds, we will be moving forward with our demurrer. If you have any questions about the issues raised in this correspondence or wish to engage in further meet and confer, please feel free to contact me at your convenience. Very truly yours Rosemarie S. Lewis RSL:ah cc: Melissa B. Frederick (melissaf@lotuscorp.com) Lotus Communications Tracy Ellis (tracy.ellis@argogroupus.com) Argo Group US 031519 COTOCN EXHIBIT “D” From: Ashleigh Gideon To: Tielle Shu"; Nick Ebrahimian Cc: Rose Lewis; Elva Loaiza; Barbara Gonzales Subject: RE: Alemansour v. Lotus Oxnard Corp(60658/73795) Date: Monday, March 18, 2019 8:14:00 AM Good morning Tielle, 3 p.m. today should work. Best, Ashleigh Sent: Friday, March 15, 2019 5:23 PM To: Ashleigh Gideon; Nick Ebrahimian Cc: Rose Lewis; Elva Loaiza; Barbara Gonzales Subject: RE: Alemansour v. Lotus Oxnard Corp(60658/73795) HI Ashleigh, [ am available Monday 3/18 at 3 pm to discuss. Let me know if this works for you. Tielle Tiélle Shu, Esq. Lavi & Ebrahimian, LLP 88839 W. Olympic Blvd, Suite 200 Beverly Hills, California 90211 Tel. (310) 432-0000 Fax (310) 432-0001 From: Ashleigh Gideon Sent: Friday, March 15, 2019 9:57 AM To: Tielle Shu ; Nick Ebrahimian Cc: Rose Lewis <[flewis@bortonpetrini.com>; Elva Loaiza ; Barbara Gonzales Subject: RE; Alemansour v. Lotus Oxnard Corp(60658/73795) Good morning Tielle, I just attempted to leave a voicemail for you at your office, but was unable to due to your mailbox being full. However, | did leave a message and my call back information with Gaby from your office who informed me she would be reaching out to you via email. Nonetheless, | wanted to personally follow up to the below email regarding my intention to comply with CCP Section 430.41 with regards to the demurrer we intend to file on March 21, 2016 on behalf of Defendants. If you could please give me a call back at your earliest convenience | would greatly appreciate it as today would be the five day deadline to meet and confer pursuant to statute, Best, Ashleigh Sent: Thursday, March 14, 2019 8:17 AM To: Tielle Shu’; Nick Ebrahimian Cc: Rose Lewis; Elva Loaiza; Barbara Gonzales Subject: Alemansour v. Lotus Oxnard Corp(60658/73795) Good morning counsel, fam writing in an effort to comply with CCP Section 430.41 with regards to the demurrer we intend to file on behalf of Defendants. As you know, section 430.41 requires the parties, five days prior to the filing of the demurrer, to discuss the reasons why the demurring party believes the pleading is defective and determine whether an agreement can be reached that would resolve the objections to be raised in the demurrer. As explained below, all eight causes of action alleged in your complaint fail to constitute a cause of action against Defendants. » First Cause of Action: Disability Discrimination in Violation of Government Code §12940 (a): Disparate Treatment Based on Disability and/or Perceived Disability o In order to properly present a discrimination cause of action under the FEHA, your client must allege and prove all of the following essential factual elements: (1) that she was a member of a protected class; {2) that she was competently performing in the position held; (3) that she suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances suggesting a discriminatory motive. (See Gov. Code §12940(a); McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802. Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.) o There are no factual allegations in your client's Complaint that allege her termination on April 24, 2018 was motivated by or had anything to do with her perceived disability, Rather, she generally alleges that her disability was a “motivating factor” with no facts presented to demonstrate, sustain, or establish that allegation. « Second Cause of Action: Disability Discrimination in Violation of Government Code §12940 (m): Failure to Provide Reasonable Accommodation; Third Cause of Action: Disability Discrimination in Violation of Government Code §12940 (n): Failure to Engage in the Interactive Process o The FEHA provides that it is an unlawful employment practice for an employer to fail to make reasonable accommodations for the known physical or mental disability of an employee (§12940(m)}) and fail to engage in the interactive process (§12940(n)). o Failure to engage in the good faith interactive process is unlawful only if a reasonable accommodation was possible. Your client bears the burden of proof. (See Nadaf- Rahroy v. Neiman Marcus Group, Inc., supra (2008)166 CA4th at 981--982, 83 CR3d at 216-217). The employee's burden is to identify a reasonable accommodation that the interactive process should have produced. The employee must be able to identify an accommodation that was objectively available at the time the interactive process should have occurred. (Scotch v. Art Inst. of California-Orange County, inc. (2009) 173 CA4th 986, 1018-1019.) o Your client fails to allege that Defendants did not accommodate her for any known disability. Rather, she even recognizes that she sought reasonable accommodations, and as such Defendants placed her on CFRA/FMLA leave starting on January 25, 2018. Further, your client has not identified an alternate reasonable accommodation that the interactive process should have produced. « Fourth Cause of Action: Retaliation in Violation of Government Code §12940 (h) o In order to properly present a retaliation cause of action under the FEHA, Plaintiff must allege and prove all of the following essential factual elements; (1) that she engaged in a protected activity; (2) that she was subjected to an adverse employment action; and (3) that there is a causal link between the protected activity and the adverse employment action. See Gov. Code § 12940(h); Miller v. Dept. of Corr. (2005) 36 Cal.4th 446, 472. o Your client never made a protected complaint and her FEHA retaliation claim is solely based on allegations that Defendants denied her rights she was purportedly entitled to under FEHA in connection with her disability. Thus, Plaintiff's complaint does not state facts sufficient to establish a retaliation claim as she has not opposed any conduct forbidden by the FEHA. « Fifth Cause of Action: Failure to Do Everything Reasonably Necessary to Prevent Discrimination and Retaliation From Occurring in Violation of Government Code § 12940 (k) o Government Code §12940(k} provides that it is an unlawful employment practice for an employer to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. o As your client has not plead sufficient factual allegations that she was mistreated because of her disability, Defendants could not have failed to take reasonable steps necessary to prevent discrimination, as no discrimination occurred. « Sixth Cause of Action: Violation of Government Code § 12945.2 (a) of the California Family Rights Act o In order to prove a violation of California Government Code section 12945.2, Plaintiff must show: (1) that she was eligible for medical leave; (2) that she requested/took medical leave; and (3) her request for medical leave was a substantial motivating reason for her termination. o Here, your client does not identify any facts to support a claim that her request for medical leave was a substantial motivating reason for her termination. « Seventh Cause of Action: Retaliation for Taking/Requesting CFRA in Violation of Government Code § 12945.2 {l) o In order to prevail on a claim for retaliation under Government Code section 12945.2, Plaintiff must show that: (1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, because of her exercise of her right to CFRA leave. (Dudley v. Department of Transportation, (2001) 90 Cal. App. 4th 262) o Here, plaintiff has alleged that Defendants “refused to grant (her) leave for (her) to tend to her own serious health condition and/or refused return {her) to the same or comparable job. Instead, EMPLOYER, acting through its managing agents, terminated (her) employment.” These facts, even if taken as true, are not sufficient to constitute a cause of action for retaliation in violation of CFRA. Construed in the light most favorable to plaintiff, her complaint cannot be read to allege that Defendant took any form of adverse action against her because she exercised her right to CFRA leave. «+ Eighth Cause of Action: Wrongful Termination in Violation of Public Policy o To establish a claim for wrongful termination or retaliation in violation of public policy, a plaintiff must plead and prove: {1) an employer-employee relationship; (2) termination or other adverse employment action; (3) the termination of plaintiff's employment was a violation of public policy; (4) the termination was a legal cause of plaintiff's damages; and (5) the nature and extent of plaintiff's damages. (Holmes v. General Dynamics Corp., 17 Cal. App. 4th 1418, 142 (1993).) o As mentioned above, your client has not pled any facts sufficient to constitute a cause of action for any violations of FEHA. Therefore, there is no statutory or public policy that was allegedly violated by Defendants. o The existence of a pertinent public policy is crucial to a wrongful termination claim. It is the plaintiff's burden to provide the specific statutes and regulations on which the claim is based and failure to do so is fatal to the cause of action. (Green v. Ralee Eng Co., 19 Cal. 4th 66, 84 (1998). Please let me know your position on this as we are required to meet and confer in person or by telephone. | am available for a telephonic conference today, April 14, 2019 from 1:30 p.m. to 4:00 p.m. or anytime Friday, March 15, 2019 from 9:00 p.m. to 4:00 p.m. Thank you in advance for anticipated cooperation. epw--- /\shleigh Gideon 626 Wilshire Boulevard, Suite 975 (@l§L®]\] Attorney af Law Los Angeles, CA 90017 FTN tel: (213) 624-2869 4 agideon@borfonpetrini.com fax: (213) 489-3930 [EEC Fresno Visit Our Website! HUGS] Orange County (661) 322-3051 (CLI as Rr www.bortonpetrini.com (209) 576-1701 (562) 596-2300 Sacramento San Bernardino (T= RBs) San Francisco San Jose (916) 858-1212 {908) 381-052 (619) 232-2424 (415) 677-0730 (408) 535-0870 "Serving California Businesses for Over 110 Years” CONFIDENTIALITY NOTICE: This communication and any accompanying document(s) are confidential and privileged. They are intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying, or distribution, or the taking of any action in reliance upon the communication is strictly prohibited. Any inadvertent disclosure shall not compromise or waive the attorney- client privilege and/or attorney work-product privilege as to this communication, any attachments or otherwise. If you have received this communication in error, please contact Ashleigh Gideon at agideon@bortonpetrini.com or by telephone at (213) 624-2869 x2526. This e-mail address is not valid for delivery of legal notices or legal mail. Thank you. EXHIBIT “E” From: Ashleigh Gideon To: "Tielle shu”; Nick Ebrahimian Cc: Rose Lewis; Elva Loaiza; Barbara Gonzales Subject: RE: Alemansour v. Lotus Oxnard Corp(60658/73795) Date: Monday, March 18, 2019 2:52:00 PM 10 a.m. will work. From: Tielle Shu [mailto:tshu@lelawfirm.com] Sent: Monday, March 18, 2019 2:47 PM To: Ashleigh Gideon; Nick Ebrahimian Cc: Rose Lewis; Elva Loaiza; Barbara Gonzales Subject: RE: Alemansour v. Lotus Oxnard Corp(60658/73795) Hi Ashleigh, | will have to push our meeting to tomorrow morning at 10 a.m. Are you available then? If not | am available any time before noon tomorrow. Let me know, thank you. Tielle Tiélle Shu, Esq. Lavi & Ebrahimian, LLP 8883 W, Olympic Blvd., Suite 200 Beverly Hills, California 90211 Tel. (310) 432-0000 Fax (310) 432-0001 Sent: Monday, March 18, 2019 8:15 AM To: Tielle Shu ; Nick Ebrahimian Cc: Rose Lewis ; Elva Loaiza ; Barbara Gonzales Subject: RE: Alemansour v. Lotus Oxnard Corp(60658/73795) Good morning Tielle, 3 p.m. today should work. Best, Ashleigh From: Tielle Shu [mailto:tshu@lelawfirm.com] Sent: Friday, March 15, 2019 5:23 PM To: Ashleigh Gideon; Nick Ebrahimian Cc: Rose Lewis; Elva Loaiza; Barbara Gonzales Subject: RE: Alemansour v. Lotus Oxnard Corp(60658/73795) HI Ashleigh, | am available Monday 3/18 at 3 pm to discuss. Let me know if this works for you. Tielle Tiélle Shu, Esa. Lavi & Ebrahimian, LLP 88839 W. Olympic Blvd., Suite 200 Beverly Hills, California 90211 Tel. (310) 432-0000 Fax (310) 432-0001 From: Ashleigh Gideon Sent: Friday, March 15, 2019 9:57 AM To: Tielle Shu ; Nick Ebrahimian Cc: Rose Lewis ; Elva Loaiza ; Barbara Gonzales Subject: RE: Alemansour v. Lotus Oxnard Corp{60658/73795) Good morning Tielle, I just attempted to leave a voicemail for you at your office, but was unable to due to your mailbox being full. However, | did leave a message and my call back information with Gaby from your office who informed me she would be reaching out to you via email. Nonetheless, | wanted to personally follow up to the below email regarding my intention to comply with CCP Section 430.41 with regards to the demurrer we intend to file on March 21, 2019 on behalf of Defendants. If you could please give me a call back at your earliest convenience | would greatly appreciate it as today would be the five day deadline to meet and confer pursuant to statute. Best, Ashleigh From: Ashleigh Gideon Sent: Thursday, March 14, 2019 8:17 AM To: Tielle Shu’; Nick Ebrahimian Cc: Rose Lewis; Elva Loaiza; Barbara Gonzales Subject: Alemansour v. Lotus Oxnard Corp(60658/73795) Good morning counsel, | am writing in an effort to comply with CCP Section 430.41 with regards to the demurrer we intend to file on behalf of Defendants. As you know, section 430.41 requires the parties, five days prior to the filing of the demurrer, to discuss the reasons why the demurring party believes the pleading is defective and determine whether an agreement can be reached that would resolve the objections to be raised in the demurrer. As explained below, all eight causes of action alleged in your complaint fail to constitute a cause of action against Defendants. « First Cause of Action: Disability Discrimination in Violation of Government Code £12940 {a): Disparate Treatment Based on Disability and/or Perceived Disability o In order to properly present a discrimination cause of action under the FEHA, your client must allege and prove all of the following essential factual elements: (1) that she was a member of a protected class; (2) that she was competently performing in the position held; (3) that she suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances suggesting a discriminatory motive. (See Gov. Code §12940(a); McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 802. Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1038.) o There are no factual allegations in your client's Complaint that allege her termination on April 24, 2018 was motivated by or had anything to do with her perceived disability. Rather, she generally alleges that her disability was a “motivating factor” with no facts presented to demonstrate, sustain, or establish that allegation. « Second Cause of Action: Disability Discrimination in Violation of Government Code §12940 {m): Failure to Provide Reasonable Accommodation; Third Cause of Action: Disability Discrimination in Violation of Government Code §12940 (n): Failure to Engage in the Interactive Process o The FEHA provides that it is an unlawful employment practice for an employer to fail to make reasonable accommodations for the known physical or mental disability of an employee {§12940(m)) and fail to engage in the interactive process (§12940(n)). o Failure to engage in the good faith interactive process is unlawful only if a reasonable accommodation was possible. Your client bears the burden of proof. (See Nadaf- Rahroy v. Neiman Marcus Group, Inc., supra (2008)166 CA4th at 981--982, 83 CR3d at 216-217). The employee's burden is to identify a reasonable accommodation that the interactive process should have produced. The employee must be able to identify an accommodation that was objectively available at the time the interactive process should have occurred. {Scotch v. Art Inst. of California-Orange County, Inc. (2009) 173 CA4th 986, 1018-1019.) o Your client fails to allege that Defendants did not accommodate her for any known disability. Rather, she even recognizes that she sought reasonable accommodations, and as such Defendants placed her on CFRA/FMLA leave starting on January 25, 2018. Further, your client has not identified an alternate reasonable accommodation that the interactive process should have produced. + Fourth Cause of Action: Retaliation in Violation of Government Code §12940 (h) o In order to properly present a retaliation cause of action under the FEHA, Plaintiff must allege and prove all of the following essential factual elements; (1) that she engaged in a protected activity; (2) that she was subjected to an adverse employment action; and (3) that there is a causal link between the protected activity and the adverse employment action. See Gov. Code § 12940(h); Miller v. Dept. of Corr. (2005) 36 Cal.4th 446, 472. o Your client never made a protected complaint and her FEHA retaliation claim is solely based on allegations that Defendants denied her rights she was purportedly entitled to under FEHA in connection with her disability. Thus, Plaintiff's complaint does not state facts sufficient to establish a retaliation claim as she has not opposed any conduct forbidden by the FEHA. « Fifth Cause of Action: Failure to Do Everything Reasonably Necessary to Prevent Discrimination and Retaliation From Occurring in Violation of Government Code § 12940 (k) o Government Code §12940(k) provides that it is an unlawful employment practice for an employer to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring. o As your client has not plead sufficient factual allegations that she was mistreated because of her disability, Defendants could not have failed to take reasonable steps necessary to prevent discrimination, as no discrimination occurred. + Sixth Cause of Action: Violation of Government Code § 12945.2 (a) of the California Family Rights Act o In order to prove a violation of California Government Code section 12945.2, Plaintiff must show: (1) that she was eligible for medical leave; {2) that she requested/took medical leave; and (3) her request for medical leave was a substantial motivating reason for her termination. o Here, your client does not identify any facts to support a claim that her request for medical leave was a substantial motivating reason for her termination. « Seventh Cause of Action: Retaliation for Taking/Reguesting CFRA in Violation of Government Code § 12945.2 (i) o In order to prevail on a claim for retaliation under Government Code section 12945.2, Plaintiff must show that: {1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination, because of her exercise of her right to CFRA leave. (Dudley v. Department of Transportation, (2001) 90 Cal. App. 4th 262) o Here, plaintiff has alleged that Defendants “refused to grant (her) leave for (her) to tend to her own serious health condition and/or refused return (her) to the same or comparable job. Instead, EMPLOYER, acting through its managing agents, terminated (her) employment.” These facts, even if taken as true, are not sufficient to constitute a cause of action for retaliation in violation of CFRA. Construed in the light most favorable to plaintiff, her complaint cannot be read to allege that Defendant took any form of adverse action against her because she exercised her right to CFRA leave. Eighth Cause of Action: Wrongful Termination in Violation of Public Policy o To establish a claim for wrongful termination or retaliation in violation of public policy, a plaintiff must plead and prove: (1) an employer-employee relationship; {2) termination or other adverse employment action; (3) the termination of plaintiff's employment was a violation of public policy; (4) the termination was a legal cause of plaintiff's damages; and (5) the nature and extent of plaintiff's damages. (Holmes v. General Dynamics Corp., 17 Cal. App. 4th 1418, 142 (1993).) o As mentioned above, your client has not pled any facts sufficient to constitute a cause of action for any violations of FEHA. Therefore, there is no statutory or public policy that was allegedly violated by Defendants. o The existence of a pertinent public policy is crucial to a wrongful termination claim. It is the plaintiff's burden to provide the specific statutes and regulations on which the claim is based and failure to do so is fatal to the cause of action. (Green v. Ralee Eng Co., 19 Cal. 4th 66, 84 (1998). Please let me know your position on this as we are required to meet and confer in person or by telephone. | am available for a telephonic conference today, April 14, 2019 from 1:30 p.m. to 4:00 p.m. or anytime Friday, March 15, 2019 from 9:00 p.m. to 4:00 p.m. Thank you in advance for anticipated cooperation. ps Ashleigh Gideon Ss. tel: (213) 624-2869 fax: (213) 489- 3930 Bakersfield Fresno Visit Our ETE : = NE EE ET eT (661) 322-3051 (5569).268-0117: 2. www.bhortonpetrini.com {209).576-1701: lage Evilels] SETeg: 1a) REN] Bernardino : San Diego’ 3 Be San Francisco on Jose CHORLTR bi file Lyk (619)232-2424 (415) 677-0730 EERE EN) "Serving California Businesses for Over 110: Years CONFIDENTIALITY NOTICE: This communication and any accompanying document(s) are confidential and privileged. They are intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying, or distribution, or the faking of any action in reliance upon the communication is strictly prohibited. Any inadvertent disclosure shall not compromise or waive the atforney- client privilege and/or attorney work-product privilege as to this communication, any attachments or otherwise. If you have received this communication in error, please contact Ashleigh Gideon at agideon{@borionpetrini.com or by telephone at (213) 624-2869 x2526. This e-mail address is not valid for delivery of legal notices or legal mail. Thank you. EXHIBIT “F” From: Ashleigh Gideon To: Tielle Shy"; Nick Ebrahimian Ce: Rose Lewis; Elva Loaiza Subject: Alemansour v, Lotus Oxnard Corp (60658/73795) Date: Tuesday, March 19, 2019 10:44:00 AM Attachments: 031519 COTOCN.pdf Good morning Tielle, Thank you again for giving me a call this morning to discuss the grounds for the demurrer we intend to file in regards to the above mentioned matter. During our phone call you indicated that you had not yet received my final meet and confer correspondence | sent to your office on March 15, 2018. This correspondence was sent as a last effort to meet and confer, pursuant to Code of Civil procedure § 430.4, as | had not heard back from you after numerous attempts to get into contact beginning on March 14, 2019. These contact efforts are outlined in the courtesy copy of the final meet and confer correspondence attached hereto. You have agreed to review this correspondence and provide us with a response by the end of the day tomorrow, March 20, 2019. Nevertheless, during our conversation we were unwilling to come to a resolution of the issues raised regarding the Complaint. As such, as we cannot come to an agreement, we plan on filing our demurrer on behalf of Defendants on March 21, 2019. Best, eye Ashleigh Gideon Wilshire B tel: (213) 624-2869 fax: (213) 489-3930 VST TRA : Modesto Orange ele [CIR rey LEE www.bortonpatrini.com PLENGV AR PAEE ETI Sacramento SR EL Tee ETN ETE Ete SESS (916) 858-1212 (909).381-0527. En CRIMP Rvs. pr :2(415) 677-0730: (408) 535-0870 "Serving California Businesses for Over 110 Years” g CONFIDENTIALITY NOTICE: This communication and any accompanying document(s) are confidential and privileged. They are intended for the sole use of the addressee. If you receive this transmission in error, you are advised that any disclosure, copying, or distribution, or the taking of any action in reliance upon the communication is strictly prohibited. Any inadvertent disclosure shall not compromise or waive the attorney- client privilege and/or attorney work-product privilege as fo this communication, any attachments or otherwise. if you have received this communication in error, please contact Ashleigh Gideon at agideon@bortonpetrini.com or by telephone at (213) 624-2869 x2526. This e-mail address is not valid for delivery of legal notices or legal mail. Thank you. EXHIBIT “G” LAW OFFICES OF é Lavi & EBramiMmiaN, LLP 8689 W. OLYMPIC BLVYD., SUITE 200 BEVEFLY HILLS, CALIFORNIA Bo211 TELEPHONE: (310) 432-0000 FACSIMILE; (210) 432-0001 WWW. LELAWFIRM. COM March 20, 2019 VIA EMAIL Ashleigh Gideon, Esq. 626 Wilshire Boulevard, Suite 975 Los Angeles, CA 90017 agideon(@bortonpetrini.com Re: Alemansour v Lotus Oxnard Corp Dear Ashleigh, I have reviewed your correspondence dated March 14, 2019 regarding Plaintiff's complaint, and have addressed the issues you raised in your letter in our telephone call on 3/18/19 as well. This letter is written as a good faith attempt to resolve all outstanding issues in order to avoid any unnecessary motion practice. First Cause of Action: Disability Discrimination in Violation of Government Code §12940 (a): Disparate Treatment Based on Disability and/or Perceived Disability Defendant’s correspondence states “there are no factual allegations in your client’s Complaint that allege her termination on April 24, 2018 was motivated by or had anything to do with her perceived disability. Rather, she generally alleges that her disability was a “motivating factor” with no facts presented to demonstrate, sustain, or establish that allegation.” Defendant's position is incorrect. Plaintiff has properly pled facts to support her claim for disability discrimination. Please see Plaintiff’s factual allegations in her complaint, which can be found in paragraphs 32-44, and 47-57. Second Cause of Action: Disability Discrimination in Violation of Government Code §12940 (m): Failure to Provide Reasonable Accommodation; Third Cause of Action: Disability Discrimination in Violation of Government Code §12940 (n): Failure to Engage in the Interactive Process Defendant's correspondence states “Your ¢lient fails to allege that Defendants did not accommodate her for any known disability. Rather, she even recognizes that she songht reasonable accommodations, and as such Defendants placed her on CFRA/FMLA leave starting: on January 25, 2018. Further, your client has not identified an alternate reasonable accommodation that the interactive process should have produced.” Defendant’s statement is incorrect. Plaintiff has pled that she sought various accommodations, which were denied by Defendants. Specifically, PLAINTIFF ‘pled that she notified DEFENDANTS and sought various accommodations from DEFENDANTS for her disabilities, including but not limited to be able to use/take CFRA leave, including intermittently, time off to seé¢ the doctor, time off for surgery, finite medical leave. DEFENDANTS failed and refused to accomunodate the disability of PLAINTIFF, as described hereinabove. (Complaint 37, 44, 67) Fourth Cause of Action: Retaliation in Violation of Government Code §12940 (h) Defendant’s correspondence states “Your client never made a protected complaint and her FEHA retaliation claim is solely based on allegations that Defendants denied her rights she was purportedly entitled to under FEHA in connection with her disability, Thus, Plaintiffs complaint does not state facts sufficient to establish a retaliation claim as she has not opposed any conduct forbidden by the FEHA. This is incorrect. Government Code section 12900, et seq., makes it unlawful to for an employer to retaliate against an individual with a disability who opposes any discriminatory practice, including employees who ask for reasonable accommodations. As stated above, Plaintiff requested reasonable accommodations from Defendant. (Complaint §37, 44, 67) Fifth Cause of Action: Failure to Do Everything Reasonably Necessary to Prevent Discrimination and Retaliation From Occurring in Violation of Government Code § 12940 (k) Defendant’s correspondence states “As your client has not plead sufficient factual allegations that she was mistreated because of her disability, Defendants could not have failed to take reasonable steps necessary to prevent discrimination, as no discrimination occurred.” Again, as indicated in this letter, Plaintiff has pled sufficient factual allegations in support of her disability discrimination claims. Accordingly, Defendant has no grounds to file a demurrer on Plaintiff's fifth cause of action, Sixth Cause of Action: Violation of Government Code § 12945.2 (a) of the California Family Rights Act Defendant’s correspondence states “Here, your client does not identify any facts to support a claim that her request for medical leave was a substantial motivating reason for her termination.” Again, Plaintiff has pled sufficient facts to support her sixth cause of action. As indicated in our call, please see Plaintiff's complaint paragraphs 34-44. Seventh Cause of Action: Retaliation for Taking/Requesting CFRA in Violation of Government Code § 129452 (I) Defendant’s correspondence states “Here, plaintiff has alleged that Defendants “refused to grant (her) leave for (her) to tend to her own serious health condition and/or refused return (her) to the same or comparable job. Instead, EMPLOYER, acting through its managing agents, terminated (her) employment.” These facts, even if taken as true, are not sufficient to constitute a cause of action for retaliation in violation of CERA, Construed in the light most favorable to plaintiff, her complaint cannot be read to allege that Defendant took any form of adverse action against her because she exercised her right to CFRA leave.” Again, Plaintiff has pled sufficient facts to support her seventh cause of action. As indicated in our call, please see Plaintiff’s complaint paragraphs 34-44. Eighth Cause of Action: Wrongful Termination in Violation of Public Policy Again, as indicated in this letter, Plaintiff has pled sufficient factual allegations in support of her FEHA claims. CONCLUSION: Based on the above, Plaintiff will not be amending her complaint as each cause of action has been properly pled. Very truly yours; LAVI & EBRAHIMIAN, LLP Zr Tielle Shu, Esq. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 h:\060658\073 492\pidgs\dem urrer.docx PROOF OF SERVICE (Code Civ. Proc., §§ 1013a) STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. Iam over the age of 18 and not a party to the within action; my business address is Borton Petrini, LLP, 626 Wilshire Boulevard, Suite 975, Los Angeles, California 90017. On March), 2019, I served the foregoing document described as DEFENDANTS’ NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF’S COMPLAINT FOR DAMAGES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ASHLEIGH K. GIDEON; [PROPOSED] ORDER on the other parties in this action by placing the true copies thereof enclosed in sealed envelopes addressed as listed. Nick Ebrahimian, Esq. Attorneys for: Plaintiff Sahel Alemansour Tielle Shu, Esq. LAW OFFICES OF LAVI & EBRAHIMIAN, LLP 8889 W. Olympic Blvd., Suite 200 Beverly Hills. California 90211 BUS 310-432-0000 FAX 310-432-0001 M BY MAIL: As follows: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing with the United States Postal Service. Under that practice the envelope would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. [" BY FACSIMILE: I caused each document to be delivered by electronic facsimile to the listed above. The facsimile machine I used complied with California Rules of Court, Rule 2.301 and no error was reported by the machine. Pursuant to California Rules of Court, Rule 2.306. I" BY OVERNIGHT COURIER SERVICE: I caused each envelope with postage fully prepaid to be sent by overnight. I” BY PERSONAL SERVICE: Pursuant to C.C.P. Section 1011, I caused to be delivered such envelope by hand to the offices of the addressee(s) listed above. "BY ELECTRONIC SERVICE: Pursuant to Code of Civil Procedure section 1010.6 and California Rules of Court, Rule 2.251, service shall be completed via electronic transmission to the attached person(s) transmission of such is at the e-mail address(es) indicated above. FEDERAL: I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on March,2{ 2019, at Los Angeles, California. Elva Loaiza “El Fae Type or Print Name Signature 14 DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT FOR DAMAGES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ASHLEIGH K. GIDEON; [PROPOSED] Court Reservation Receipt | Journal Technologies Court Portal Journal Technologies Court Portal Court Reservation Receipt : Reservation ! Reservation ID: 914789103385 * Reservation Type: Demurrer - with Motion to Strike (CCP 430.10) : Case Number: } I85TEvEeOR 1 ¢ Filing Pa Party: : Lotus Ona Corp Defendant] | P Date/Time: June 10th 2019, 8:30AM F First Paper Fees s Unlimited ci Demurrer- with Motion to strike cce a. 10) : Credit Card ape reertageF Fee 22 = TOTAL : Payment : Amount: ! $508. 61 ) Account Rambers 30002671 < Back to Main 4 Print Page redeem 8 Nerdy AE eh sais? Copyright © Journal Technologies, USA. All rights reserved. Case Ti Status: RESERVED Number of Motions: 1 SEHEL ALEMANSOUR vs LOTUS OXNARD CORP, et al. Location: Stanley Mosk Courthouse « Department 78 i Conf rmation Code: CR-GPVMGBIFGQIARWCUC 435.00 - 60c 00 1 : 60.00 0 1361, 1 1361 ° $508.61 Type: | Visa Authorization: 019626