Notice of Removal of Action

Cal. Super. - 5th Dist.January 22, 2019

Case No. l 9CECG0025 I NOTICE OF REMOVAL TO STATE COURT AND ADVERSE PARTIES 21 FRESNO, PLAINTIFF ANGELICA QUINTERO AND HER ATTORNEYS OF RECORD: 22 PLEASE TAKE NOTICE THAT on February 22, 2019, AETNA RESOURCES LLC, 23 (erroneously sued as AETNA LIFE INSURANCE COMPANY) ("Defendant") e-filed in the 24 United States District Court for the Eastern District of California, a Notice of Removal of Civil 25 Action to Federal Court under 28 U.S.C. §§ 1332, 1441(a) and (b), and 1446. A true and correct 26 conformed copy of the Notice of Removal is attached hereto as Exhibit 1. 27 Pursuant to 28 U.S.C. Section 1446(d), the filing of the Notice of Removal in the federal 28 district court, together with the filing of a copy of the Notice of Removal with this Court, effect Complaint Filed: January 22, 2019 Trial Date: None Set DEFENDANT'S NOTICE TO STATE COURT AND ADVERSE PARTIES OF FILING OF NOTICE OF REMOVAL OF ACTION TO FEDERAL COURT Case No. 19CECG00251 Defendants. 15 AETNA LIFE INSURANCE COMPANY, a Connecticut corporation; and DOES 1 through 16 25, inclusive, V. Plaintiff, 13 14 12 ANGELICA QUINTERO, as an individual, 17 18 19 20 TO THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO 8 9 10 11 1 Tyler A. Brown (State Bar No. 121350) Ravdeep S. Grewal (State Bar No. 308447) 2 JACKSON LEWIS P.C. 50 California Street, 9th Floor 3 San Francisco, California 94111-4615 Telephone: (415) 394-9400 4 Facsimile: (415) 394-9401 E-mail: tyler.brown@jacksonlewis.com 5 E-mail: ravdeep.grewal@jacksonlewis.com 6 Attorneys for Defendant AETNA RESOURCES LLC, erroneously 7 sued as AETNA LIFE INSURANCE COMPANY E-FILED 2/25/2019 4:15 PM FRESNO COUNTY SUPERIOR COURT By: S. Lopez, Deputy Case No. I 9CECG0025 I 11-------------------=-2--------------------- NOTICE OF REMOVAL TO STATE COURT AND ADVERSE PARTIES 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 4841-0503-1816, v. 1 Tyler A. Br wn Rav deep S. Grewal Attorneys for Defendant AETNA RESOURCES LLC, erroneously sued as AETNA LIFE INSURANCE COMPANY 4 5 By: 6 7 8 9 JACKSON LEWIS P.C. 3 Dated: February 25, 2019 1 the removal of this action, and this Court may proceed no further unless and until the case is 2 remanded. EXHIBIT 1 T Case No. TBA 20 21 22 23 24 25 26 27 28 ------------·-··----···-··---- 11-----------------~----------·-----·----·-·- Defendants. 17 18 19 15 AETNA LIFE INSURANCE COMPANY, a Connecticut corporation; and DOES 1 through 16 25, inclusive, 14 v. 13 Plaintiff, 3 4 5 6 7 8 9 10 11 12 ANGELICA QUINTERO, as an individual, Tyler A. Brown (State Bar No. 121350) Ravdeep S. Grewal (State Bar No. 308447) JACKSON LEWIS P.C. 50 California Street, 9th Floor San Francisco, California 94111-4615 Telephone: (415) 394-9400 Facsimile: (415) 394-9401 E-mail: tyler.brown@jacksonlewis.com E-mail: ravdeep.grewal@jacksonlewis.com Attorneys for Defendant AETNA RESOURCES LLC, erroneously sued as AETNA LIFE INSURANCE COMPANY Complaint Filed: January 22, 2019 Trial Date: None set NOTICE OF REMOVAL OF ACTION TO THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA PURSUANT TO 28 U.S.C. §§ 1332, 1441(a) AND (b) Case No. TBA entitled to any recovery in this action, Plaintiffs allegations place in controversy a sufficient Court"). While Defendant disputes that Plaintiff ANGELICA QUINTERO ("Plaintiff') is the Superior Court of the State of California in and for the County of Fresno ("Fresno Superior PLEASE TAKE NOTICE that Defendant AETNA RESOURCES LLC, erroneously sued as AETNA LIFE INSURANCE COMPANY ("Defendant") invokes this Court's jurisdiction under 28 U.S.C. § 1332 and removes, pursuant to 28 U .S.C. § 1441, this action to this Court from TO THE HONORABLE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA: EASTERN DISTRICT OF CALIFORNIA UNITED STATES DISTRICT COURT Case 1:19-at-00153 Document 1 Filed 02/22/19 Page 1 of 8 NOTICE OF REMOVAL 2 Case No. TBA NOTICE OF REMOVAL This Notice of Removal has been filed within thirty (30) days after Defendant was 6. STATEMENT OF JURISDICTION 1. The District Court has diversity jurisdiction under 28 U.S.C. § 1332(a) where the matter is between citizens of different states and the amount in controversy exceeds the sum or value of $75,000, exclusive of interest and costs. PLEADINGS AND PROCESS 2. On January 22, 2019, Plaintiff Angelica Quintero filed a Complaint in Fresno County Superior Court, Case No. 19CECG0025 l, alleging the following causes of action: (I) Discrimination Based on Pregnancy and Related Disabilities; (2) Discrimination Based On Gender; (3) Failure to Accommodate and Engage in a Timely, Good Faith Interactive Process; ( 4) Failure to Prevent Discrimination; (5) Retaliation; (6) Wrongful and Tortious Discharge; (7) Intentional Infliction of Emotional Distress; and (8) Unfair Business Practices § 17200. The Civil Case Cover Sheet was filed concurrently with the Complaint and the Summons was issued on January 23, 2019. (See Complaint, Civil Case Cover Sheet, and Summons collectively attached as Exhibit A to the Declaration of Tyler A. Brown ("Brown Deel."),~ 2.) 3. On January 25, 2019, Plaintiff served Defendant with the Complaint, Civil Case Cover Sheet, and Summons through Defendant's registered agent for service of process, CT Corporation. (See Service of Process Transmittal attached as Exhibit B to Brown Decl.,"] 3.) 4. On February 21, 2019, Defendant filed its Answer to the Complaint in state court. (See Answer attached as Exhibit C to Brown Deel., ii 4.) 5. Exhibits A, B and C comprise all the pleadings and papers that have been filed in this case as of the date of filing this Notice of Removal. (Brown Deel.,~ 5.) TIMELINESS OF REMOVAL amount to bring this case within the jurisdiction of this Court. In support thereof, Defendant avers the following: Case 1:19-at-00153 Document 1 Filed 02/22/19 Page 2 of 8 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 served with a copy of Plaintiff's Summons and Complaint upon which this action is based. 27 28 Case No. TBA NOTICE OF REMOVAL Defendant is informed and believes that Plaintiff was, at the time this action was 11. DIVERSITY OF CITIZENSHIP 9. Diversity jurisdiction exists where there is diversity of citizenship between the parties at the time the lawsuit is filed. (Grupo Dataflux v. Atlas Global Group, LP (2004) 541 U.S. 567, 571.) As shown below, there is complete diversity of citizenship because this is an action between Plaintiff, a citizen of California, on the one hand, and Defendant Aetna Resources LLC, a citizen of Delaware and Connecticut, on the other hand. The fact that Plaintif erroneously sued Defendant Aetna Life Insurance Company (which is not Plaintiffs employer) has no bearing on this analysis as it is also a citizen of Connecticut, and not California. 10. To establish citizenship for diversity purposes, a natural person must be a citizen of the Unites States and domiciled in a particular state. (Kantor v. Wellesley Galleries, Ltd. (9th Cir. 1983) 704 F.2d 1088, 1090.) Persons are domiciled in the places where they reside with the intent to remain or to which they intend to return. (Kanter v. Warner-Lambert Co. (9th Cir. 2001) 265 F.3d 853, 857.) NOTICE TO ALL PARTIES AND STATE COURT 7. In accordance with 28 U.S.C. § 1446(d), the undersigned counsel certifies that a copy of this Notice of Removal and all supporting papers will promptly be served on Plaintiffs counsel and filed with the Clerk and Fresno County Superior Court. Therefore, all procedural requirements under 28 U.S.C. § 1446 have been satisfied. VENUE 8. Venue of this action lies in the United States District Court for the Eastern District of California, pursuant to 28 U.S.C. § 1441 et seq. and 28 U.S.C. § 139l(b)(I) as this is the judicial district in which Plaintiff alleges the action arose and where, based on information and belief, Plaintiff resides. Case 1:19-at-00153 Document 1 Filed 02/22/19 Page 3 of 8 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 commenced, and still is, a resident and citizen of the State of California. (See Complaint, ii 2; see 26 also Declaration of Neal A. Murphy ("Murphy Deel."),~] 4.) 27 12. The citizenship of a corporation is the state where it is incorporated and the state 28 where it has its principal place of business. (28 U.S.C. § 1332(c).) With respect to ascertaining a 1 corporation's principal place of business for purposes of diversity jurisdiction, the United States 2 Supreme Court has adopted the "nerve center test." (Hertz v. Friend (2010) 130 S. Ct. 1181, 3 1186.) Under the nerve center test, a corporation's principal place of business is where a 4 corporation's high level officers direct, control and coordinate the corporation's activities. (Id.) 5 A corporation can only have one (1) "nerve center." (Id., at 93-94.) In evaluating where a 6 corporation's "nerve center" is located, courts will look to the center of overall direction, control 7 and coordination of the company and will no longer weight corporate functions, assets, or 8 revenues in each state. (Id.) 9 13. Defendant Aetna Resources LLC was, at the time the Complaint was filed in state 10 court, and still is, at the time of removal, a Delaware limited liability company with its principal 11 place of business in Hartford, Connecticut. (Declaration of Murphy, ~ 2.) Defendant Aetna 12 Resources LLC's headquarters are located in Hartford, Connecticut, where its high level officers 13 direct, control and coordinate its activities. (Id.) The vast majority of administrative, executive 14 and decision-making functions occur at, and are controlled from, Defendant Aetna Resources 15 LLC's headquarters in Hartford, Connecticut. (Id.) Therefore, Defendant Aetna Resources LLC 16 was, at the time the Complaint was filed in state court, and still is, a citizen of the State o 17 Delaware and Connecticut within the meaning of section l 332(c)(l). 18 14. Although not needed for removal analysis, out of an abundance of caution, 19 erroneously sued Defendant Aetna Life Insurance Company is also diverse. Defendant Aetna Li fc 20 Insurance Company was, at the time the Complaint was filed in state court, and still is, at the time 21 of removal, a Connecticut corporation with its principal place of business in Connecticut. (Murphy 22 Deel.,~ 3.) Erroneously sued Defendant Aetna Life Insurance Company's headquarters are located 23 in Hartford, Connecticut where its high level officers direct, control, and coordinate its activities. 24 (Id.) The vast majority of administrative, executive, and decision-making functions occur at, and 25 are controlled from, erroneously sued Defendant Aetna Life Insurance Company's headquarters 26 in Hartford, Connecticut. (Id.) Therefore, erroneously sued Defendant Aetna Life Insurance 27 Company was, at the time the Complaint was filed in state court, and still is, only a citizen of the 28 Connecticut within the meaning of section 1332( c )(1 ). 4 Case 1:19-at-00153 Document 1 Filed 02/22/19 Page 4 of 8 Case No. TBA NOTICE OF REMOVAL Case No. TBA NOTICE OF REMOVAL 11 any amount whatsoever, the amount in controversy in this action exceeds $75,000. (28 U.S.C. ~ 12 1332(a).) Where a plaintiff's state court complaint is silent as to the amount of damages claimed, 13 the removing defendant need only establish it is more probable than not that plaintiff's claim 14 exceeds the jurisdictional minimum. (Sanchez v. Monumental Life Ins. Co. (9th Cir. 1996) I 02 15 F.3d 398, 403-404.) 16 18. In the Complaint in this case, Plaintiff alleges various discrimination, retaliation, 17 and wrongful termination claims under the Fair Employment and Housing Act ("FEHA"), 18 violations of public policy, emotional distress claims, and unfair business practices. (See 19 Complaint.) As discussed below, it is more probable than not that the amount in controversy 20 exceeds the jurisdictional minimum. 21 FEHA Claims 22 19. Plaintiff claims Joss of earnings due to Defendant's allegedly discriminatory and 23 retaliatory acts in violation of the FEHA. (Complaint, iii! 5-6, 36-37, 42-43, 48-49, 52-53, 57-58, 24 Prayer for Relief.) Both past and future loss of earnings are considered for purposes of calculating 25 the amount of controversy, even though the amount of controversy is assessed at "the time o 26 removal." (Chavez v. JPMorgan Chase & Co. (9th Cir. 2018) 888 F.3d 413, 417.) Here, Plaintif 27 alleges that her last day of employment was on October 8, 2018. (Complaint, ii 28.) Plaintiff's 28 pay records show that Plaintiff was paid at a rate of $16.49 per hour, thus making Plaintiff's Without conceding Plaintiff is entitled to damages or could recover damages in 17. 15. The presence of Doe defendants in this case also has no bearing on the diversity with respect to removal. (See 28 U.S.C. § 144l(b)(l) [for purposes of removal, "the citizenship of defendants sued under fictitious names shall be disregarded"].) DOES 1 through 25 here arc fictitious defendants, are not parties to this action and have not been named or served. They should accordingly be disregarded in determining the court's original jurisdiction over this matter. AMOUNT IN CONTROVERSY 16. Although the Complaint does not specify the dollar amount of damages being sought, Defendant has a reasonable, good faith belief that Plaintiff seeks damages in excess o $75,000 and meets the jurisdictional requirements of this Court. Case 1:19-at-00153 Document 1 Filed 02/22/19 Page 5 of 8 2 3 4 5 6 7 8 9 10 6 yearly income approximately $34,299.20. (Murphy Deel., ~ 4.) Thus, Plaintiff's back pay, 2 calculated from October 8, 2018 to the date ofremoval filed by Defendant on February 22, 2019, 3 would total approximately $12,004.72. Although Plaintiff is entitled to none, a conservative 4 estimate of Plaintiff's demand for front pay would be two years, equaling $68,598.40. Thus, 5 Plaintiffs total lost earnings claim will be approximately $80,603.12-independently well above 6 the $75,000 threshold amount. 7 Emotional Damages 8 20. Emotional distress damages are included in calculating the amount in controversy. 9 (Simmons v. PCR Tech. (N.D. Cal. 2002) 209 F. Supp. 2d 1033, 1035; Richmond v. Allstate ins. 10 Co., 897 F. Supp. 447, 450 (S.D. Cal. 1995) [in denying remand, court concluded that "[tjhe 11 vagueness of plaintiffs' pleadings with regard to emotional distress damages should not preclude 12 this Court from noting that these damages are potentially substantial."]) Here, Plaintiff alleges 13 that she was terminated after giving birth via cesarean, and that Defendant allegedly failed to 14 accommodate her disability or "to bond with her newborn child." (Cornplaint.Y 19-31 ). Plaintiff 15 claims that "Defendant's decision to terminate Plaintiff, (sic) caused her to suffer severe 16 emotional distress, anxiety, fear, stress, trepidation and apprehension." (Complaint, ~I 32.) Based 17 upon the nature of the causes of action set forth in Plaintiffs Complaint, Defendant has a 18 reasonable good faith belief that Plaintiff seeks damages in excess of the $75,000 jurisdictional 19 amount of this Court notwithstanding the fact the Complaint does not expressly set forth the 20 approximate monetary amount of damages being sought. 21 Attorney's Fees 22 21. Plaintiff also requests an award of attorney's fees which is available under all 23 causes of action plead in his Complaint. (See Complaint, Prayer for Relief.) Although Plaintif 24 seeks an unspecified amount of attorneys' fees, such fees may be taken into account to determine 25 jurisdictional amounts if a statute authorizes fees to a successful litigant. (Goldberg v. C PC 26 International, Inc. (9th Cir. 1982) 678 F.2d 1365, 1367; Galt G/S v. JSS Scandinavia (9th Cir. 27 1998)142 F.3d 1150, 1155-1156; Guglielmino v. McKee Foods Corp. (9th Cir. 2007) 506 F.3d 28 696, 700 ["[w]here an underlying statute authorizes an award of attorneys' fees, either with Case 1:19-at-00153 Document 1 Filed 02/22/19 Page 6 of 8 Case No. TBA NOTICE OF REMOVAL 7 23 Services, Inc. (7th Cir. 1996) 75 F.3d 311, 315; see also Davenport v. Mutual Ben. Health & Acc. 24 Ass 'n (9th Cir. 1963) 325 F.2d 785, 787 [including punitive damages in amount in controversy I). 25 Here, Plaintiff seeks punitive damages for seven of the eight causes of action (See paragraphs 3 7, 26 43, 49, 53, 58, 62, and 68 of the Complaint.) Assuming Plaintiff is seeking an ultra-conservative 27 $15,000 in punitive damages for each cause of action alleged, it is facially apparent from the 28 Complaint that the alleged damages exceed $75,000. 20 Prayer for Relief.) Where punitive damages are recoverable, "the court has subject matter 21 jurisdiction unless it is clear 'beyond a legal certainty that the plaintiff would under no 22 circumstances be entitled to recover the jurisdictional amount." (Anthony v Security Pac. Fin 'I Furthermore, Plaintiff alleges she is entitled to punitive damages. (Complaint, 23. 19 18 Punitive Damages 17 7.) Case No. TBA NOTICE OF REMOVAL 11 in California in 2005, and is the Managing Shareholder of the Webb Law Group. Employment 12 law is one of his focus practice areas. (Brown Deel., ir 7.) Defendants' lead attorney, Tyler A 13 Brown, has been practicing employment law for over 30 years and is familiar with fees awarded! 14 to plaintiffs counsel in similar actions filed in California and federal court. (Brown Decl., ii 6.) 15 Based on Mr. Webb's experience and Plaintiffs allegations, it would be reasonable to expect that 16 attorney's fees alone in this case will exceed the sum of $75,000 through trial. (Brown Deel., ii 7 LEXIS 33827, * 11 ["the amount in controversy includes not only damages accrued up to the time 8 of removal, but also a reasonable assessment of damages likely to be accrued after the time o 9 removal"].) 3 the prevailing plaintiff to recover reasonable attorney fees, a reasonable estimate of fees likely to 4 be incurred to resolution is part of the benefit permissibly sought by the plaintiff and thus 5 contributes to the amount in controversy." (Brady v. Mercedes-Benz USA, Inc. (N.D. Cal. 2002) 6 243 F. Supp 2d 1004, 1011; Celestino v. Renal Advantage, Inc. (N.D. Cal. 2007) 2007 U.S. Dist. 2 Simmons v. PCR Tech. (N.D. Cal. 2002) 209 F. Supp. 2d 1029, 1035.) "Where the law entitles mandatory or discretionary language, such fees may be included in the amount in controversy"]; Case 1:19-at-00153 Document 1 Filed 02/22/19 Page 7 of 8 Plaintiffs lead attorney in this case, Lenden F. Webb, was admitted to practice law 22. 10 4824-2711-3608, v. 1 '--"/ s"-1 _!.,T_,_y""'l sr. -'--'A'-'-. ;::B.!...:ro:<..:w'-'-'n"-----·----------· Tyler A. Brown Ravdeep S. Grewal Attorneys for Defendant AETNA LIFE INSURANCE COMP ANY By: 16 17 18 19 20 21 22 23 24 25 26 27 28 JACKSON LEWIS P.C. Dated: February 22, 2019 14 15 12 WHEREFORE, Defendant removes this action now pending in the Superior Court of the 13 State of California for the County of Fresno to this court. 11 and costs. l 0 different states and the amount in controversy exceeds the sum of $75,000, exclusive of interests 9 provisions of 28 U.S.C. §§ 1332 and 1441, et seq. because the action is between citizens of Based on the foregoing, Defendant removes this action to this court pursuant to the 25. 6 to28 U.S.C. § 1441. 7 CONCLUSION 24. Removal is therefore proper in this case because, from the allegations of the 2 Complaint and the contents of this Notice of Removal, it is more likely than not that Plaintiff's 3 claims exceed $75,000. (Sanchez v. Monumental Life Ins. l 02 F.3d at 403-04; Lucke ft v. Delta 4 Airlines, Inc, (5th Cir. 1999) 171 F.3d 295, 298.) Accordingly, the amount in controversy 5 requirement of 28 U.S.C. § 1332 has been met and this action is removable to this court pursuant Case 1:19-at-00153 Document 1 Filed 02/22/19 Page 8 of 8 Case No. TBA NOTICE OF REMOVAL 8 Case No. TBA DECL. OF TYLER A. BROWN 11------------------------- -----------··--··-·----· On January 22, 2019, Plaintiff Angelica Quintero filed a Complaint in Fresno 2. 28 22 appear before this Court. I am an attorney with the law firm of Jackson Lewis P.C., attorneys ol 23 record in this matter for Defendant Aetna Resources LLC, erroneously sued as Aetna I .i le 24 Insurance Company ("Defendant"). With the exception of matters based on information and 25 belief, I have personal knowledge of the matters stated below, and if called to testify as to these 26 matters, I could and would do so competently. 27 PLEADINGS AND PROCESS Complaint Filed: January 22, 2019 Fresno County Superior Court DECLARATION OF TYLER A. BROWN IN SUPPORT OF DEFENDANT'S NOTICE OF REMOVAL OF ACTION TO FEDERAL COURT UNDER 28 U.S.C. §§ 1332 AND 1441(a) and (b) Case No. TBA 21 20 I, Tyler A. Brown, declare: Defendants. 15 AETNA LIFE INSURANCE COMPANY, a Connecticut corporation; and DOES 1 through 16 25, inclusive, 14 v. 13 Plaintiff, 2 3 4 5 6 7 8 9 10 11 12 ANGELICA QUINTERO, as an individual, Tyler A. Brown (State Bar No. 121350) Ravdeep S. Grewal (State Bar No. 308447) JACKSON LEWIS P.C. 50 California Street, 9th Floor San Francisco, California 94111-4615 Telephone: (415) 394-9400 Facsimile: (415) 394-9401 Email: tyler.brown@jacksonlewis.com Email: ravdeep.grewal@jacksonlewis.com Attorneys for Defendant AETNA RESOURCES LLC, erroneously sued as AETNA LIFE INSURANCE COMPANY EASTERN DISTRICT OF CALIFORNIA UNITED STA TES DISTRICT COURT Case 1:19-at-00153 Document 1-1 Filed 02/22/19 Page 1 of 34 I am an attorney licensed to practice law in the State of California and admitted to 1. 17 18 19 Case No. TBA DECL. OF TYLER A. BROWN 2 this case as of the date of filing this Notice of Removal. Attorney's Fees 6. I am lead counsel for Defendants in this case. I have been practicing employment law for over 30 years and am familiar with fees awarded to plaintiffs' counsel in similar actions filed in California and federal court. 7. Prior to the filing of Defendant's Notice of Removal, I caused a search to be conducted for Plaintiff's lead attorney in this case, Lenden F. Webb, on the California State Bar Website: http://members.calbar.ca.gov/fal/Licensee/Detail/236377. The website reflected that Mr. Webb was admitted to practice law in California in 2005. According to Mr. Webb's Linkedln page, Mr. Webb is the Managing Shareholder of the Webb Law Group. APC and employment law is one of his focus areas. (See https://www.linkedin.com/in/lendenwe_b_b, last visited on February 19, 2019.) Based on Mr. Webb's experience and Plaintiffs allegations in the Exhibits A, Band C comprise all the pleadings and papers that have been tiled in 5. 4. On February 21, 2019, Defendant filed its Answer to the Complaint in state court. A true and correct copy of the Answer is attached as Exhibit C. County Superior Court, Case No. 19CECG00251, alleging the following causes of action: ( 1) Discrimination Based on Pregnancy and Related Disabilities; (2) Discrimination Based On Gender; (3) Failure to Accommodate and Engage in a Timely, Good Faith Interactive Process: (4) Failure to Prevent Discrimination; (5) Retaliation; (6) Wrongful and Tortious Discharge; (7) Intentional Infliction of Emotional Distress; and (8) Unfair Business Practices § 17200. The Civil Case Cover Sheet was filed concurrently with the Complaint and the Summons was issued on January 23, 2019. True and correct copies of the Complaint, Civil Case Cover Sheet, and Summons are collectively attached hereto as Exhibit A. 3. On January 25, 2019, Plaintiff served Defendant with the Complaint, Civil Case Cover Sheet, and Summons through Defendant's registered agent for service of process, CT Corporation. A true and correct copy of the Service of Process Transmittal is attached as Exhibit B. Case 1:19-at-00153 Document 1-1 Filed 02/22/19 Page 2 of 34 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 4816-8983-3608, v. 1 Tyler A. Brown Isl Tyler A. Brown 3 I declare under penalty of perjury and under the laws of the United States and California 4 that the foregoing is true and correct to the best of my knowledge and belief. 5 Executed this February 22, 2019 at San Francisco, California. Complaint, I believe it would be reasonable to project Plaintiff's attorney's fees incurred in this 2 case will exceed $75,000 through trial. Case 1:19-at-00153 Document 1-1 Filed 02/22/19 Page 3 of 34 Case No. TBA DECL. OF TYLER A. BROWN 6 7 8 9 JO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT A Case 1:19-at-00153 Document 1-1 Filed 02/22/19 Page 4 of 34 a - 0153 e - i e 19 I T 21i 25 "Defendants"): Defendants. vs. Plaintiff, Lenden F. Webb (SBN 236377) Brooke B. Nevels (SBN 302994) 2 WEBB LAW GROUP, APC 466 W. Fallbrook Ave., Suite 102 3 Fresno, CA 93711 Tele{'hone: (559) 431-4888 " Facsimile: (559) 821-4500 Email: L Webb@WBLawGroup.com s Email: BNevels@WBLawGroup.com 6 Attorneys for Plaintiff, ANGELICA QUINTERO 28 defendants, alleging multiple violations of the Fair Employment and Housing Act ("FEHA''), COMPLAINT - I . Plaintiff brings this action against Aetna and other as of yet unnamed INTRODUCTION I. 27 Plaintiff ANGELICA QUINTERO ("Plaintiff" or "Quintero") hereby submits this Complaint for damages against Defendant AETNA LIFE INSURANCE COMPANY., a Connecticut corporation ("Defendant" or "Aetna"), and DOES I through 25 (collectively DISCRIMINATION BASED ON PREGNANCY AND RELATED DISABl.LITIES DISCRIMINATION BASED ON GENDER FAILURE TO ACCOMMODATE AND ENGAGE IN A TIMELY, GOOD FAITH JNTERATIVE PROCESS FAILURE TO PREVENT DJSCRIMlNA TION RETALIATION WRONGFUL AND TORTIOUS DISCHARGE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS UNFAIR BUSINESS PRACTICES §17200 E-FILED 1122/2019 8:00 AM FRESNO COUNTY SUPERIOR COURT By: M. Douangkham, Deputy 7 NGELICA QUINTERO, as an individual, ) Case No.: 19CECG00251 ) ) COMPLAINT FOR: ) ) l. ETNA LIFE INSURANCE COMPANY, a ) on.nectic,ut corporation; and DOES I through ~ 2 5, inclusive, ) · ) 3. ) l) 4. 5. 6. l) 7. s. ) SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO CIVIL UNLIMITED DIVISION Case 1:19-at-00153 Document 1-1 Filed 02/22/19 Page 5 of 34 8 9 10 "' 11 ue "";; <·- ,,_ 12 . ..,, - "" _,... :;i g~ 0 u.!:! ::("' t: I:> (.')!~ ?:: ~~ 14 :5 ~ ci cc':::~ cc ~ tl;; 15 w'3: ?:: :g ..,. 16 17 18 19 20 21 zz 23 24 COMPLAINT - 2 - 28 are persons, corporations, or other entities which reside or are authorized to do and are doing Plaintiff is informed and believes, and thereon alleges, that DOES 13 through 25 9. 27 22 are persons, corporations or other entities which reside or are authorized to do and are doing 23 business in the State of California. The true identities of DOES I through 12 are currently 24 unknown to Plaintiff; therefore, Plaintiff now sues DOES I through 12 by fictitious names. 25 Plaintiff will amend this Complaint to state the proper names of each Doe Defendant when its 26 identity is discovered. Plaintiff is informed and believes, and thereon alleges, that DOES I through 12 8. 21 19 DFEH requesting a 'right-to-sue' letter against Defendant on or around November 12, 2018 and ?O received a 'right-to-sue' letter that same day. Plaintiff filed a complaint for discrimination and wrongful termination with the 7. 18 17 distress. 16 15 14 13 12 II Government Code §I 2940, et seq. 5. Plaintiff seeks compensatory damages, costs of suit herein, and attorneys' fees pursuant to Cal. Gov't Code § I 2940, el seq. 6. As a further legal result of the unlawful and wrongful actions of Defendants and each of their agents against Plaintiff as alleged herein, Plaintiff has been harmed in that she has suffered emotion pain, humiliation, mental anguish, loss of enjoyment of life, and emotional Defendants are "supervisors" or "managers" within the meaning of California 4. 10 7 corporation, conducts business in the County of Fresno, State of California. At all times s relevant to the complaint, Defendant met the requirements of FEHA to fall under its purview, 9 including having five or more employees. Defendant AETNA LIFE INSURANCE COMPANY, a Connecticut 3. 6 5 the County of Fresno, State of California. Plaintiff is and at all relevant times mentioned herein, is an individual residing in 2. 4 3 violations of the California Family Rights Act ("CFRA"). including pregnancy "sex" discrimination; violation of pregnancy leave rights set forth in Cal. Gov. Code§ 12945; retaliation; wrongful termination in violation of public policy; and Case 1:19-at-00153 Document 1-1 Filed 02/22/19 Page 6 of 34 .. 2 28 27 26 aware of her pregnancy. 25 Plaintiff is informed and believes and thereon alleges that when she was hired, Defendant was n On or around March 27, 20 I 8, Plaintiff began her employment with Defendant. 14. 24 22 Defendant based on the so-called benefits and maternity leave program that Plaintiff later 23 learned did not exist nor was offered to Plaintiff. Plaintiff left her previous employer of almost ten ( J 0) years to come work for 13. 21 zn center representative in Defendant's Medicare department. Plaintiff was at all relevant times herein, employed by the Defendant as a call 12. 19 ts GENERAL ALLEGATIONS 11. Plaintiff is informed and believes, and thereon alleges that, at all relevant times, each of the Cross-Defendants, whether named or fictitious, were the agent or employee of each of the other Cross-Defendants, and in doing the things alleged to have been done in the complaint, acted within the scope of such agency or employment, or ratified the acts of the 17 other. I 0. Plaintiff is informed and believes, and thereon alleges that each fictitiously named Defendant, including Roes 9 through 17, are in some way responsible for, participated in, or contributed to the matters of which Plaintiff complains of, and has legal responsibility for those matters. 9 10 N II us: c:..." ~·"' :>- 12 c.""~;: :::> ~r;: ~ ~·~ 13 <..:)~g ~2a 14 <.a. ..J ~ ij g; \) it 15 t:..l~ .. "" ,,. '$ 16 COMPLAINT - 3 - Case 1:19-at-00153 Document 1-1 Filed 02/22/19 Page 7 of 34 business in the State of California. The true identities of DOES 13 through 25 are currently 2 unknown to Plaintiff and therefore Plaintiff pray for leave to amend this Complaint to assert the 3 proper names of each Doe-Defendant when its identity is discovered. Plaintiff is informed and 4 believe and thereon allege that DOES 13 through 25 were the managerial agent, employee, 5 predecessor, subsidiary successor, joint venture, co-conspirator, alter ego, and/or representative 6 of each and every other Defendant named herein or identified as DOES I through 12, and acted 1 with the permission, authorization and/or ratification and consent of each and every other II Defendant at all relevant times herein. COMPLAINT - 4 - 28 21 that on September 5, 2018, she exhausted I 00% of California Pregnancy Disability Leave. 26 On August 12, 2018, Plaintiff gave birth via cesarean. On September 6, 2018, Defendant mailed Plaintiff correspondence telling her 20. 21. 25 23 aware that if she gave birth via a cesarean, Plaintiff would be disabled and would be unable to 24 return to work for 56 days after delivery, in order to properly heal. Plaintiff is further informed and believes and thereon alleges that Defendant was 19. 5 30-60 minutes early) to go to her prenatal doctor's appointment. Defendant told Plaintiff that 6 she was on a point system and that she was going to be marked absent if she went to her 7 doctor's appointment. Defendant also said that if she was absent x amount times, she would be s subject to termination. Defendant also demanded Plaintiff to schedule her doctor's appointment 9 after business hours, however, Plaintiff informed Defendant that her doctor's office is only 10 open during business hours. 17. Based on information and belief, at the time Plaintiff went on medical leave, she was approximately 1.5 points from being te~minated. The points that were against her were for taking time off for a protected activity - attending her prenatal doctor's appointments. 18. On or around May 4, 20 l 8, due to pregnancy complications, Plaintiff sought and received a temporary leave of absence from Defendant as a form of accommodation. Plaintiff is further informed and believes and thereon alleges that at all relevant times mentioned herein, Defendant had actual knowledge that she was anticipated to deliver her baby on or around August 21, 20 l 8. In addition, Plaintiff is informed and believes and thereon alleges that soon after she was scheduled to give birth after she has properly healed, she would have returned to work, with the need for only minimal accommodations, if any, in order to perform the essential 21 function of her job. 4 Defendant regularly harassed Plaintiff when she requested the time off(leaving 16. 15. Defendant works on a point system in which they will terminate their employees 2 based on the number of points. During Plaintiff's employment with Defendant, at times, she 3 would have to leave work early to attend prenatal doctor's appointments with her OBGYN. Case 1:19-at-00153 Document 1-1 Filed 02/22/19 Page 8 of 34 22 N II u~ ~., -:i:·-= ,,_ 12 •v; - :>.. ,; .... ~ ~c;: 0 li.!! CZ::> E 13 (.,) - 12 •V) - ~ ..... ;::) g~ 0 " .. a: ~ .E 13 i:.:;< 0 ~1~ 14 ~ . ....J~ ~ ea - f! cc l'.l u, 15 ~~ e s ~ 16 17 18 19 20 21 22 2.3 24 25 26 27 COMPLAINT - 10. 25 acts described and alleged herein deliberately, oppressively, fraudulently and maliciously, in _1 26 conscious disregard for Plaintiff's rights and safety. As such, Defendant acted in a willful and 27 intentional manner and its conduct, as herein described, was and continues to be despicable, 28 malicious and outrages in that it has caused Plaintiff to suffer needless cruel and unjust Defendant, while acting by and through its managing employees, committed the 49. 24 17 discriminatory acts, carried forth by and through its managing employees, Plaintiff has suffered 18 and continues to suffer, substantial losses in earnings and job benefits as well as mental and 19 emotional distress and discomfort, all to her damage in an amount to be proven at trial. As a 20 further direct, foreseeable, legal and proximate result of Defendant's discriminatory acts as 21 herein alleged, Plaintiff has also been caused to retain attorneys and has thus incurred legal 22 fees, expenses and costs, entitling her to reimbursement of same pursuant to Government Code 23 section l 2965(b ), in an amount to be proven at trial. 16 of Government Code§§ I 2940(m)&(n). 48. As a direct, foreseeable, legal and proximate result of Defendant's 15 14 13 12 other person. However, when Defendant discriminated and retaliated against Defendant by terminating her employment instead of extending her leave of absence until she fully healed and when it additionally failed to engage Plaintiff in a timely, good faith, interactive process so that the most effective available accommodations could be identified, it violated the mandates II 10 perform the essential functions of her employment duties without endangering herself or any 9 disabilities for her disabilities she would have been able to return to work and continue to Had Defendant furnished Plaintiff with reasonable accommodations for her 47. 8 46. Plaintiff is informed and believes and thereon alleges that the reasonable 2 accommodations necessitated by her pregnancy-related disabilities would not have created an 3 undue hardship upon Defendant, nor would said acc~mmodations have adversely impacted, in 4 any way, the operation of Defendant's business. In fact, Plaintiff has been informed and 5 believes and thereon alleges that said accommodations were readily available as evidenced by 6 the fact that she had already been afforded nearly four (4) months of leave preceding the 7 termination of her employment. Case 1:19-at-00153 Document 1-1 Filed 02/22/19 Page 14 of 34 COMPLAINT • I I • · prevent the herein alleged acts of discrimination, by failing to undertake prompt and adequate investigation concerning the unlawful discrimination and by failing to take any action in response to said conduct, Defendant violated Government Code § I 2940(k). 52. As a direct, foreseeable, legal and proximate result of SPI 's failures to act as herein alleged, Plaintiff has suffered and continues to suffer, substantial loss in earnings and job benefits, emotional distress, mental anguish and discomfort, as well as sever anxiety, trepidation, apprehension, panic, dread, tear and worry all to her damage in an amount which will be proven at trial. As further direct, foreseeable, legal and proximate results of Defendant's failures to act, Plaintiff has also had to retain attorneys, thereby incurring legal fees, expenses and costs, entitling her to reimbursement of the same pursuant to Government Code § l 2965(b), in an amount to be proven at trial. 53. Moreover, despite knowing of the discriminatory conduct carried out against Plaintiff, Defendant oppressively, fraudulently, maliciously and in conscious disregard for the rights and safety of Plaintiff, failed to prevent such conduct. Defendant thus acted in a willful and intentional manner and its conduct, as herein described, was and continues to be hardship. Therefore, Defendant's conduct, acts and/or omissions, as herein alleged, justifies and award of punitive and exemplary damages in an amount sufficient to deter it from ever engaging in such conduct again in the future. FOURTH CAUSE OF ACTION FAILURE TO PREVENT DISCRIMINATION IN VIOLATION or CALIFORNIA'S FAIR EMPLOYMENT AND HOUSING ACT (Plaintiff against Defendant and DOES I through 25, inclusive) 50. Plaintiff re-alleges each and every allegation set forth in paragraphs I through 49 and incorporates each by reference as though set forth in full herein. 51. During her employment, Defendant by and through its managing employees with its consent, authori'i:ation and/or ratification, discriminated against Plaintiff because of her pregnancy, her known disabilities, her perceived disabilities, her need and/or requests for reasonable accommodations, her need for an extended leave of absence and her gender. Additionally, Defendant failed to take reasonable steps to prevent the discrimination Plaintiff was subjected to, ratifying it instead by terminating her. By failing to take reasonable steps to Case 1:19-at-00153 Document 1-1 Filed 02/22/19 Page 15 of 34 2 3 4 5 6 7 8 9 10 N II (,)~ a.. u <·S- O:~j;i 12 ':) g 0\ 0 IJ,;i 13 :i: ,,, e <.I< 0 ~8~ 14 j~g ro vi !! 15 :xi .. u, w:s: ~ :s ..,. 16 17 111 19 20 21 22 23 24 25 26 27 28 COMPLAINT • 12 - 28 27 26 25 23 discriminatory acts, carried forth by and through its managing employees, Plaintiff has suffered and continues to suffer, substantial losses in earnings and job benefits as well as mental and emotional distress and discomfort, all to her damage in an amount to be proven at trial. As a further direct, foreseeable, legal and proximate result of Defendant's discriminatory acts as herein alleged, Plaintiff has ais~ been caused to retain attorneys and has thus incurred legal fees, expenses and costs, entitling her to reimbursement of same pursuant to Government Code section I 2965(b), in an amount to be proven at trial. 22 As a direct, foreseeable, legal and proximate result of Defendant's 57. 21 she had informed it of the same. Plaintiff is informed and believes, and thereon alleges that her pregnancy, her disabilities - both actual and perceived - and her need and/or requests for reasonable accommodations were all substantial and determining factors in the decision to terminate her employment as herein alleged. As such, the wrongful conduct of Defendant, as herein described, constitutes and unlawful, retaliatory employment practice in violation of Government Code §12945 and 12945.2. reasonable accommodation. Defendant was aware of Plaintiff's disabilities and her needs since despicable, malicious and outrageous in that it has caused and continues to cause Plaintiff to needlessly suffer cruel and unjust hardship. Therefore, Defendant's conduct, acts and/or omissions, as herein alleged.justify an award of punitive and exemplary damages in an amount sufficient to deter it from ever engaging in such conduct again. FIFTH CAUSE OF ACTION RETALIAT10N IN VIOLATION OF CALIFORNIA'S FAIR EMPLOYMENT AND HOUSING ACT (Plaintiff against Defendant and DOES I through 25, inclusive) 54. Plaintiff re-alleges each and every allegation set forth in paragraphs I through 53 and incorporates each by reference as though set forth in full herein. 55. At all times mentioned herein, Defendant employed more than five (5) persons. Plaintiff is further informed and believes and thereon alleges that she was protected by having a medical condition and/or physical disability related to pregnancy. 56. Plaintiff's disabilities limited at least one of her major I ife activities. Plaintiffs disabilities further necessitated the need for an extended leave of absence as a form of Case 1:19-at-00153 Document 1-1 Filed 02/22/19 Page 16 of 34 20 2 3 4 5 6 7 8 9 10 N II V2 Cl.. .. <: ... o- 12 . .,, _ Cl.. ·"" ::i !JO: ~ ~·~ 13 o ::J~ o 5.a pi; ,. E 13 v..: 0 .!.c~ ;-:-; 8zj 14 -:::2,; ,_]" " ..... ~ fg ~ J: 15 w~ ~ :g ~ 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT - 14 - 65. The aforesaid conduct was carried out by Defendant, by and through the acts and/or omissions of its managing employees, while in the course and scope of their employment and with Defendant's express and/or implied consent, approval, authority and/or ratification. Plaintiff is informed and believes and thereon alleges that Defendant knew, must have known, should have known, or had reason to know that its conduct and/or actions, as 10 v§! II ~u <·3- ~~" 12 :;;i g QI o li.s 0::;.. E 13 <)~~ :::: ea 14 <.,g R -l~ ~ ~ ii U: 15 t.:J?: ~* 16 17 18 19 71l 21 22 23 24 25 26 27 28 4 committed the acts described and alleged herein deliberately, oppressively, fraudulently and 5 maliciously, in conscious disregard for Plaintiff's rights and safety. As such, Defendant acted in 6 a willful and intentional manner and its conduct, as herein described, was and continues to be 7 despicable, malicious and outrages in that it has caused Plaintiff to suffer needless cruel and 8 unjust hardship. Therefore, Defendant's conduct, acts and/or omissions, as herein alleged, 9 justifies and award of punitive and exemplary damages in an amount sufficient to deter it from ever engaging in such conduct again in the future. SEVENTH CAUSE OF ACTION INTENTIONAL INFLICTON OF EMOITIONAL DISTRESS (Plaintiff against Defendant and DOES I through 25, inclusive) 63. Plaintiff re-alleges each and every allegation set forth in paragraphs l through 62 and incorporates each by reference as though set forth in full herein. 64. According to Government Code § 1291 (a), freedom from discrimination in the workplace is a civil right, thus entitling Plaintiff to a greater degree of protection than if she were a stranger to Defendants. In this matter, Defendant violated Government Code§ 12940 et seq., by refusing to furnish Plaintiff with reasonable accommodations, even though said accommodations were available and at no hardship to Defendant. Defendant further failed to engage Plaintiff in a timely good faith interactive process before illegally terminating her employment, because of her pregnancy related disabilities, perceived or otherwise, and her need and/or requests for reasonable accommodations, thereby causing her to suffer severe emotional distress, anxiety, worry, stress, fear, apprehension and trepidation. Furthermore, Defendant, while acting by and through its managing employees, 62. 3 same pursuant to California Code of Civil Procedure §/021.5, in an amount to be proven at 2 trial. Case 1:19-at-00153 Document 1-1 Filed 02/22/19 Page 18 of 34 28 68 and incorporates each by reference as though set forth in full herein. 27 26 25 24 23 22 21 19 18 17 16 IS 14 13 12 69. 67. • As a direct, foreseeable, legal and proximate result of Defendant's intentional, willful, deliberate conduct, as herein mentioned, Plaintiff has suffered and continues to suffer, emotional distress, mental anguish and discomfort, and severe anxiety, trepidation, apprehension, panic, dread, fear and worry, all to her damage in an amount which will be proven at trial. 68. Furthermore, Defendant, while acting by and through its managing employees, committed the acts described and alleged herein deliberately, oppressively, fraudulently and maliciously, in conscious disregard for Plaintiff's rights and safety. As such, Defendant acted in a willful and intentional manner and its conduct, as herein described, was and continues to be despicable, malicious and outrages in that it has caused Plaintiff to suffer needless cruel and unjust hardship. Therefore, Defendant's conduct, acts and/or omissions, as herein alleged, justifies and award of punitive and exemplary damages in an amount sufficient to deter it from ever engaging in such conduct again in the future. EIGHTH CAUSE OF ACTION UNFAIR BUSINESS PRACTICES CALIFORNIA BUSINESS & PROFESSIONS CODE §17200, et seq. (Plaintiff against Defendant and DOES I through 25, inclusive) Plaintiff re-alleges each and every allegation set forth in paragraphs I through II 10 Plaintiff's claims herein are not subject to the worker's compensation exclusivity rule. 6 misconduct set forth herein, committed by Defendant, by and through its managing employees, 7 with Defendant's prior consent, authority and/or ratification, was so extreme and outrageous s that it exceeded the boundaries of a decent society and lies outside the compensation bargain. 9 (See Phillips v. Geminimi Moving Specialists ( 1998) 63 Cal.App.d'" 563. 577.) As such, 5 COMPLAINT - 15 - The wrongful, unlawful discriminatory and retaliatory practices and other 66. mentioned herein, were substantially certain to inflict emotional distress upon Plaintiff through 2 the discriminatory and retaliatory conduct herein described. As such, Defendant's conduct was 3 intentional, malicious, and carried out with a deliberate, conscious and/or reckless disregard of 4 the high degree of probability that such conduct would inflict emotional distress upon Plaintiff. Case 1:19-at-00153 Document 1-1 Filed 02/22/19 Page 19 of 34 COMPLAINT - 16 - Ill Ill Ill wrongful acts and/or omission embody a pattern and practice on the part of Defendant and were carried out specifically for the purpose of reducing health insurance premiums and other employee health costs, including but not limited to insurance costs, as well as avoiding costs and expenses associated with providing reasonable accommodations. Plaintiff is also informed and believes and thereon alleges that the aforesaid actions of Defendant resulted in an increase in profit for Defendant, enabling it to generate a greater degree of income as a direct result of the above mentioned unlawful and unfair business practices. 72. Likewise, Plaintiff is informed and believes and thereon alleges that Defendant's conduct, acts and/or omissions, as herein articulated, caused her damages including but not limited to actual monetary losses in the form of employment benefits that she was or would have been entitled to. Business and Professtons Code § 17200 defines unfair practices as including any unlawful, unfair or fraudulent business act or practice and since violations of Government Code§ I 2940, et seq., as herein alleged, are considered unlawful practice, Plaintiff is entitled to maintain this cause of action against Defendant. 70. Defendant has engaged in unfair, unlawful and fraudulent activity, in violation of the provisions of the Unfair Competition Law, codified by Business & Professions Code §I 7200, el seq., by failing to furnish reasonable accommodations to its pregnant employees who are suffering from pregnancy related disabilities; by failing to engage in a timely, good faith interactive process with its employees to determine effective reasonable accommodations for their disabilities, and by discriminating and retaliating against its employees with pregnant related disabilities - either perceived or actual - and its employees who need and/or request reasonable accommodations, particularly in the form of an extended leave of absence. 7 I. Plaintiff is informed and believes and thereon alleges that the foregoing Case 1:19-at-00153 Document 1-1 Filed 02/22/19 Page 20 of 34 2 3 4 5 6 7 8 9 10 N 11 u~ Q..,"' <·" ,,_ 12 •Vl - Q.., ·"' ;::i ., ... ""' ~ ~·~ 13 v