Notice FiledCal. Super. - 5th Dist.October 30, 20194 PARK PLAZA, SUITE 1100 PAYNE & FEARS LLP ATTORNEYS AT LAW IRVINE, CALIFORNIA 92614 (949) 85M 100 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Daniel F. Fears, State Bar No. 110573 dff@paynefears.com Andrew K. Haeffele, State Bar N0. 258992 akh@paynefears.com Jason I. Bluver, State Bar No. 281784 jib@paynefears.com E-FILED PAYNE & FEARS LLP 3/24/2020 11:09 AM Attorneys at Law Superior Court of California 4 Park Plaza, Suite 1100 County of Fresno Irvine, California 92614 Telephone: (949) 851-1 100 Facsimile: (949) 85 1 -1212 By: L Herrera, Deputy Attorneys for Defendant AETNA RESOURCES LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO MONIKA AGUIRRE, an individual Plaintiff, v. AETNA RESOURCES, LLC also known as AETNA; and Does l- 1 00, Defendants. Case N0. 19CECG03964 Assigned For All Purposes T0 Hon. Rosemary McGuire Department 402 NOTICE TO PLAINTIFF OF REMOVAL OF CIVIL ACTION TO UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA Action Filed: October 20, 2019 Trial Date: None Set TO PLAINTIFF AND TO HER ATTORNEYS OF RECORD HEREIN: PLEASE TAKE NOTICE that on March 20, 2020, Defendant Aetna Resources LLC filed in the United States District Court for the Eastern District of California its Petition and Notice of Removal of Civil Action. A copy of this Petition and Notice is attached as Exhibit “A” hereto. NOTICE TO PLAINTIFF OF REMOVAL 4 PARK PLAZA, SUITE 1100 PAYNE & FEARS LLP ATTORNEYS AT LAW IRVINE, CALIFORNIA 92614 (949) 85M 100 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Also attached are the following exhibits which are required to be served upon you pursuant t0 the Eastern District’s Local Rules: EXHIBIT DATED: March 24, 2020 4839429768001 DOCUMENT Order Setting Mandatory Scheduling Conference Standing Order for Judge Dale A. Drozd Standing Order in Light of Ongoing Judicial Emergency in The Eastern District 0f California Notice of Availability 0f Magistrate Judge t0 Exercise Jurisdiction and Appeal Instructions Notice of Availability of Voluntary Dispute Resolution PAYNE & FEARS LLP Attorneys at Law EARS ANDREW AEFFELE JASON I. LUVER Attorneys for Defendant AETNA RESOURCES LLC -2- NOTICE TO PLAINTIFF OF REMOVAL EXHIBIT A 4 PARK PLAZA, SUITE 1100 IRVINE. CALIFORNIA 92614 PAYNE & FEARS LLP ATTORNEYS AT LAW (949) 5514 100 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 1:20-cv-OO414-NONE-EPG Document l Filed 03/20/20 Page l of 10 Daniel F. Fears, State Bar N0. 110573 dff?paynefears.com An rew K. Haeffele, State Bar N0. 258992 akh aynefears.com PA E & FEARS LLP Attorne s at Law 4 Park laza, Suite 1100 Irvine, California 92614 Telephone: 949 85 1 -1 100 Facsmnle: 949 85 1-12 12 fitg‘neys for Defendant AETNA RESOURCES UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA MONIKA AGUIRRE, an individual Case No. 1 :20-at-207 Plaintiff, (Fresno County Suferior Court Case N0. 19CECG0396 ) v. AETNA RESOURCES, LLC also PETITION AND NOTICE 0F known as AETNA; and Does 1-100, REMOVAL OF CIVIL ACTION UNDER 28 U.S.C. §§ 1332 AND 1441 Defendants. Trial Date: None Set T0 THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA, AND TO PLAINTIFF MONIKA AGUIRRE AND HER COUNSEL OF RECORD: PLEASE TAKE NOTICE that Defendant AETNA RESOURCES LLC hereby removes this action from the Superior Court of the State of California for the County 0f Fresno to the United States District Court for the Eastern District 0f California, on the following grounds: PETITION AND NOTICE OF REMOVAL PAYNE & FEARS LLP ATTORNEYS AT LAW 4 PARK PLAZA, SUITE 1100 IRVINE. CALIFORNIA 92614 (949) 5514 100 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 1:20-cv-OO414-NONE-EPG Document l Filed 03/20/20 Page 2 of 10 I. INTRODUCTION 1. This Court has jurisdiction over this action because complete diversity of citizenship exists between Plaintiff MONIKA AGUIRRE (“Plaintiff”) and Defendant AETNA RESOURCES LLC (“AETNA”). 2. Plaintiff is a citizen 0f the State of California, and was a citizen at the time 0f the filing of her Complaint. 3. Aetna Resources LLC is now, and at the time this action was commenced, organized under the laws of the State of Delaware, With its principal place 0f business in the State 0f Connecticut. Aetna Life Insurance Company is the sole member 0f Aetna Resources LLC and is incorporated in the State of Connecticut, with its principal place 0f business in the State of Connecticut. Neither Aetna Resources LLC nor Aetna Life Insurance Company is a citizen 0f the State of California. 4. Plaintiff s Complaint, 0n its face, contemplates a matter in controversy that exceeds the sum or value of $75,000, exclusive 0f interest and costs. 5. Pursuant t0 28 U.S.C. section 1446(b), this case is being removed Within thirty (30) days 0f AETNA’s receipt of a document (the “‘Complaint”) where complete diversity of citizenship between Plaintiff and Defendant is apparent. II. THE STATE COURT ACTION 6. On or about October 30, 2019, Plaintiff filed an action against AETNA titled “Monika Aguirre, an individual, Plaintiflv. Aetna Resources, LLC, also known as Aetna; and Does 1-100, Defendants ” in the Superior Court 0f the State 0f California, County of Fresno, Case N0. 19CECG03964 (the “State Court Action”). 7. A true and correct copy of the Summons and Complaint served on AETNA is attached hereto as Exhibit A. 8. In her Complaint, Plaintiff alleges the following causes of action: (1) Discrimination; (2) Failure t0 Engage in the Interactive Process; (3) Failure t0 Accommodate; (4) Retaliation; (5) Failure to Prevent Retaliation; and (6) Wrongful -2- PETITION AND NOTICE 0F REMOVAL PAYNE & FEARS LLP ATTORNEYS AT LAW 4 PARK PLAZA, SUITE 1100 IRVINE. CALIFORNIA 92614 (949) 5514 100 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 1:20-cv-OO414-NONE-EPG Document l Filed 03/20/20 Page 3 of 10 Termination in Violation of Public Policy. 9. On March 19, 2020, AETNA filed an Answer t0 the Complaint in the Superior Court of California, County of Fresno. Exhibit B. 10. The Summons, Complaint, and Answer constitute the pleadings, process, and orders served upon 0r by AETNA in the State Court Action. III. COMPLETE DIVERSITY EXISTS BETWEEN PLAINTIFF AND AETNA 11. The Complaint, and each cause of action contained therein, may be properly removed on the basis of diversity jurisdiction in that this is a civil action between citizens of different states and the amount in controversy exceeds the sum of$75,000, exclusive ofinterest and costs. 28 U.S.C. § 1332. A. Plaintiffis a Citizen 0f the State of California 12. Plaintiff is now, and was at the time this action was commenced, a citizen of the State of California within the meaning of U.S.C. § 1332(a) -- her place of residence and domicile are, and were, located Within the State 0f California. See Complaint at 111; see also Kanter v. Warner-Lambert C0., 265 F.3d 853, 857 (9th Cir. 2001) (“A person’s domicile is his permanent home, where he resides with the intention t0 remain or to Which he intends t0 return”); Lew v. MOSS, 797 F.2d 747, 751 (9th Cir. 1986) (explaining that residency creates a rebuttable presumption of domicile for purposes of establishing diversity of citizenship). B. Aetna Resources LLC is a Citizen of the State of Connecticut 13. If a party is a limited liability company, it is a citizen of every state of Which its owners/members are citizens. 3123 SMB LLC v. Horn, 880 F.3d 461, 465 (9th Cir. 2018); citing Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006) (“We therefore join our sister circuits and hold that, like a partnership, an LLC is a citizen of every state of which its owners/members are citizens”). 14. Aetna Resources LLC is now, and was at all material times, a single- -3- PETITION AND NOTICE OF REMOVAL PAYNE & FEARS LLP ATTORNEYS AT LAW 4 PARK PLAZA, SUITE 1100 IRVINE. CALIFORNIA 92614 (949) 5514 100 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 1:20-cv-OO414-NONE-EPG Document l Filed 03/20/20 Page 4 of 10 member limited liability company. The sole member of Aetna Resources LLC is Aetna Life Insurance Company. 15. If a party is a corporation, it is a citizen of both its state of incorporation and the state where it has its principal place 0f business. 28 U.S.C. § 1332(c)(1); Hertz Corp. v. Friend, 130 S. Ct. 1181, 1192 (2010). 16. Aetna Life Insurance Company is now, and was at all material times, a corporation organized under the laws of the State of Delaware, With its principal place of business in the State 0f Connecticut. 28 U.S.C. §1332(c); Hertz Corp, 130 S. Ct. at 1192 (“[W]e conclude that the phrase ‘principal place 0f business’ refers to the place Where the corporation’s high-level officers direct, control, and coordinate the corporation’s activities”). 17. Aetna Life Insurance Company is now, and was at all material times, headquartered in Connecticut. Aetna Life Insurance Company’s officers and directors are employees Whose offices are located at its headquarters in Connecticut. Aetna Life Insurance Company’s high-level officers direct, control, and coordinate the corporation’s operations from its headquarters in Connecticut. As a result, nearly all of Aetna Life Insurance Company’s corporate decisions are made in Connecticut, including operational, executive, administrative, and policymaking decisions. See Breitman v. May C0. California, 37 F.3d 562, 564 (9th Cir. 1994) (corporation is a citizen of state in Which its corporate headquarters are located and Where its executive and administrative functions are performed). 18. Therefore, for the purpose of determining jurisdiction, Aetna Resources LLC was not (and is not) a citizen 0f the State of California, but rather, it was (and is) a citizen of the State of Connecticut. 19. Accordingly, complete diversity exists between Plaintiff and AETNA. IV. THE AMOUNT IN CONTROVERSY EXCEEDS THE $75,000 JURISDICTIONAL MINIMUM 20. The jurisdictional minimum amount that must be in controversy, -4- PETITION AND NOTICE OF REMOVAL 4 PARK PLAZA, SUITE 1100 IRVINE. CALIFORNIA 92614 PAYNE & FEARS LLP ATTORNEYS AT LAW (949) 5514 100 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 1:20-cv-OO414-NONE-EPG Document l Filed 03/20/20 Page 5 of 10 $75,000, was satisfied at the time of the filing of this action and is still satisfied by the facts set forth herein and described more specifically below. 28 U.S.C. § 1332(a) (“[D]istrict courts have original jurisdiction 0f all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive 0f interest and costs and is between citizens of different States.”); see also Matheson v. Progressive Specially Ins., C0., 3 19 F.3d 1089, 1090 (9th Cir. 2003) (“[J]urisdiction founded 011 [diversity] requires that the parties be in complete diversity and the amount in controversy exceed $75,000”). 21. AETNA discusses the allegations herein solely to demonstrate that the amount in controversy in this matter exceeds $75,000. AETNA denies that Plaintiff is entitled t0 any damages and that Plaintiff will be able t0 recover on any 0f her theories 0f recovery set forth in the Complaint. 22. In assessing the amount in controversy, this Court may, for removal purposes, look t0 the removal papers and the pleadings, as well as other information relevant to the issue 0f damages. Chavez v. JPMorgan Chase & C0., 888 F.3d 413, 416 (9th Cir. 2018); Kroske v. US. Bank Corp, 432 F.3d 976, 980 (9th Cir. 2005); Singer v. State Farm Mutual Auto Ins. C0., 116 F.3d 373, 376 (9th Cir. 1997); Gaus v. Miles, Ina, 980 F.2d 564, 566 (9th Cir. 1992). A. The Amount in Controversv is Measured bv the Damages and Attornevs’ Fees “At Stake” in the Litigation, to which the Plaintiff Would be Entitled if She Prevails 23. In measuring the amount in controversy for purposes 0f diversity jurisdiction, “a court must assume that the allegations 0f the complaint are true and assume that a jury will return a verdict for the plaintiff 0n all claims made in the complaint.” Kenneth Rothschild Trust v. Morgan Stanley Dean Witter, 199 F. Supp. 2d 993, 1001 (C.D. Cal. 2002) (quotations omitted, emphasis added). In addition, the Court should aggregate damages in determining whether the controversy exceeds $75,000. See Bank ofCal. Nat’l ASS ’n v. Twin Harbors Lumber C0., 465 -5- PETITION AND NOTICE OF REMOVAL PAYNE & FEARS LLP ATTORNEYS AT LAW 4 PARK PLAZA, SUITE 1100 IRVINE. CALIFORNIA 92614 (949) 5514 100 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 1:20-cv-OO414-NONE-EPG Document l Filed 03/20/20 Page 6 of 10 F.2d 489, 491 (9th Cir. 1972) (“aggregation is permitted When a single plaintiff seeks t0 aggregate two or more of his own claims against a single defendant”) (internal quotations omitted). 24. Additionally, as the Ninth Circuit has recently clarified, “the amount in controversy is not limited to damages incurred prior to removal-for example, it is not limited to wages a plaintiff-employee would have earned before removal (as opposed to after removal)[; but] rather, the amount in controversy is determined by the complaint operative at the time of removal and encompasses all relief a court may grant 0n that complaint if the plaintiff is Victorious.” Chavez, 888 F.3d at 414- 15. B. Economic and Emotional Distress Damafl 25. Plaintiff seeks from Aetna economic damages and interest associated With past and future lost earnings, employee benefits, and medical expenses for the period November 1, 2017 (the date 0f her alleged separation) t0 the present. See EXh. A at Prayer, flfll, 3. Plaintiff also alleges damages for “emotional, physical and mental distress, mental anguish, embarrassment, discomfort, pain and suffering.” See Exh. A at Prayer, 112. In her Complaint, Plaintiff alleges that at the time 0f her separation (November 2017), she was a “Director of Third-Party Administrators.” As such, her annual base salary at the time of the alleged wrongful termination was approximately $1 16,866. See Declaration of Lisa A. Bennett at 1W 3-4 and Exh. A. 26. Plaintiff s current alleged lost wages and interest t0 date - alone - far exceed the $75,000 jurisdictional threshold. C. Attorneys” Fees 27. Where an underlying statute authorizes an award of attorneys’ fees, such potential fees may be included in calculating the amount in controversy. See Gait G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 1998). Here, Plaintiff seeks “attorneys’ fees” and “costs 0f suit.” See Exh. A at Prayer, 11115 and 7. -6- PETITION AND NOTICE OF REMOVAL PAYNE & FEARS LLP ATTORNEYS AT LAW 4 PARK PLAZA, SUITE 1100 IRVINE. CALIFORNIA 92614 (949) 5514 100 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 1:20-cv-OO414-NONE-EPG Document l Filed 03/20/20 Page 7 of 10 28. As the Ninth Circuit explained in Chavez, When determining the amount in controversy, attorneys’ fees are calculated based 0n the total possible recovery, and not just fees incurred as 0f the time 0f removal. Chavez, supra 888 F.3d at 417 (“That the amount in controversy is assessed at the time 0f removal does not mean that the mere futurity of certain classes of damages precludes them from being part 0f the amount in controversy”); Lucas v. Michael Kors (USA), 1116., No. 2018 WL 2146403, at *11 (C.D. Cal. 2018) (“The broad holding [in Chavez] strongly suggests that the Ninth Circuit would find it appropriate t0 consider post- removal attorneys’ fees. Therefore, the Court agrees that unaccrued post-rernoval attorneys’ fees can be factored into the amount in controversy”); Bernstein v. BMW ofN. Am., LLC, 2018 WL 2210683, at *2 (ND. Cal. 2018) (“The Ninth Circuit’s recent decision in Chavez . . . holding that the amount in controversy is What is at stake in the litigation at the time 0f removal suggests that the attorneys’ fees in the context of the amount in controversy requirement should be calculated based on the total possible recovery and not just the fees incurred to date-resolving a previously unresolved question”). 29. Here, if attorneys’ fees are awarded, the hours incurred during the case investigation, discovery, trial prep, and trial phases of this litigation - even under the most efficient circumstances - will likely result in an award exceeding the $75,000 jurisdictional threshold. D. Punitive Damages 30. Additionally, Plaintiff seeks to recover punitive damages against AETNA, a company of considerable size and resources. See Prayer for Relief at 114. Although AETNA denies Plaintiff” s allegations, requests for punitive damages must be taken into account in ascertaining the amount in controversy. Gibson v. Chrysler Corp, 261 F.3d 927, 945 (9th Cir. 2001); Campbell v. Hartford Life Ins. C0., 825 F. Supp. 2d 1005, 1008 (E.D. Cal. 2011) (same). 3 1. To establish the amount in controversy, particularly With respect to -7- PETITION AND NOTICE 0F REMOVAL 4 PARK PLAZA, SUITE 1100 IRVINE. CALIFORNIA 92614 PAYNE & FEARS LLP ATTORNEYS AT LAW (949) 5514 100 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 1:20-cv-OO414-NONE-EPG Document l Filed 03/20/20 Page 8 of 10 punitive damages, a defendant may rely 011 jury verdicts in cases involving similar facts. Simmons v. PCR Tech, 209 F. Supp. 2d 1029, 1033 (ND. Cal. 2002); Kroske v. US Bank Corp, 432 F.3d 976, 980 (9th Cir. 2005). 32. Notably, the facts of “comparator cases” relied upon by a removing Defendant do not require identical facts and need not quantify an exact value of damages. See Mejia v. Parker Hanm’fin Corp, 2018 WL 582325, at *3 (C.D. Cal. 201 8) (“OveralL district courts appear t0 require only “analogous” 0r even “similar” examples, not identical cases.”); Castillo v. ABM Indus., Ina, 2017 WL 5609791, at *3 (C.D. Cal. 2017) (same); Castle v. Lab. Corp. 0fAm., 2017 WL 21 1 1591, at *4 (C.D. Cal. 2017) (same). 33. Therefore, here, if Plaintiff is able t0 prove her claims at trial, it is reasonable to conclude that she Will seek, and a jury could award, in excess of $75,000 solely for punitive damages. See e.g.: 0 Hill v. Asian American Drug Abuse Program, Inc. (Los Angeles County Superior Court Case N0. BC582516; judgment date of January 16, 2018): awarding $2,668,700 in punitive damages in disability discrimination, failure t0 accommodate, failure to engage in the interactive process case. 0 Navarro v. 4Earth Farms, Inc. et al. (Los Angeles County Superior Court Case N0. BC606666; judgment date 0f June 19, 2017): awarding $100,000 in punitive damages in disability discrimination, harassment, wrongful termination case. 0 Tapia v. San Gabriel Transit Inc. (Los Angeles County Superior Court Case N0. BC482433; judgment date 0f December 18, 2015): awarding $400,000 in punitive damages in disability discrimination, failure to accommodate, failure to engage in the interactive process, wrongful termination case. 0 Escoto v. Metric Machining, Inc. (San Bemardino County Superior Court Case No. CIVRSIZO6532; judgment date of November 14, 2013): awarding $75,000 in punitive damages in disability discrimination, wrongful termination case. -8- PETITION AND NOTICE OF REMOVAL PAYNE & FEARS LLP ATTORNEYS AT LAW 4 PARK PLAZA, SUITE 1100 IRVINE, CALIFORNIA 92614 (949) 85M 100 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 1:20-cv-OO414-NONE-EPG Document 1 Filed 03/20/20 Page 9 of 10 Accordingly, the Complaint contemplates an amount “at stake” in this litigation which far exceeds the $75,000 jurisdictional threshold. V. REMOVAL IS TIMELY 34. This Petition and Notice of Removal is timely pursuant to 28 U.S.C. section 1446(b) because this action is being removed within thirty (30) days of the date when AETNA received the Summons and Complaint. 28 U.S.C. § 1446(b)(1); see Exhibit A. VI. CONCLUSION 35. For the reasons stated above, this Court has jurisdiction under 28 U.S.C. section 1332 because this is a civil action between citizens of different states, and the matter in controversy exceeds $75,000, exclusive of interest and costs. 36. According, AETNA may remove this action t0 this Court pursuant t0 28 U.S.C. sections 1332 and 1441. CVS respectfully requests that this Court exercise its removal jurisdiction over this action. DATED: March 20, 2020 PAYNE & FEARS LLP By: /s/ Andrew K. Haeffele DANIEL F. FEARS ANDREW K. HAEFFELE Attorneys for Defendant AETNA RESOURCES LLC 4840-1048-1591J -9- PETITION AND NOTICE OF REMOVAL EXHIBIT A Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 1 of 31 Service of Process Transmittal 02/21/2020 CT Log Number 537245241 TO: Desiree Beatty Aetna, Inc. Law U23S, 1425 Union Meeting Road Blue Bell, PA 19422 RE: Process Served in California FOR: Aetna Resources LLC (Domestic State: DE) Page 1 of 1 / AA Information displayed on this transmittal is for CT Corporation's record keeping purposes only and is provided to the recipient for quick reference. This information does not constitute a legal opinion as to the nature of action, the amount of damages, the answer date, or any information contained in the documents themselves. Recipient is responsible for interpreting said documents and for taking appropriate action. Signatures on certified mail receipts confirm receipt of package only, not contents. ENCLOSED ARE COPIES OF LEGAL PROCESS RECEIVED BY THE STATUTORY AGENT OF THE ABOVE COMPANY AS FOLLOWS: TITLE OF ACTION: Monika Aguirre, etc., Pltf. vs. Aetna Resources, LLC, etc., et al., Dfts. Name discrepancy noted. DOCUMENT(S) SERVED: Summons, Complaint, Notice, Attachment(s), Stipulation(s) COURT/AGENCY: Fresno County - Superior Court - Fresno, CA Case # 19CECG03964 NATURE OF ACTION: Employee Litigation - Wrongful Termination - 11/01/2017 ON WHOM PROCESS WAS SERVED: C T Corporation System, Los Angeles, CA DATE AND HOUR OF SERVICE: By Process Server on 02/21/2020 at 15:51 JURISDICTION SERVED : California APPEARANCE OR ANSWER DUE: Within 30 calendar days after this summons and legal papers are served on you ATTORNEY(S) / SENDER(S): Larry H. Shapazian Tomassian Pimentel & Shapazian APC 3419 W. Shaw Avenue Fresno, CA 93711 559-277-7300 ACTION ITEMS: CT has retained the current log, Retain Date: 02/24/2020, Expected Purge Date: 02/29/2020 Image SOP Email Notification, Desiree Beatty beattyd@aetna.com Email Notification, Jacqueline West WestJ2@AETNA.com Email Notification, PIPER TAYLOR plperry@aetna.com SIGNED: C T Corporation System ADDRESS: 155 Federal St Ste 700 Boston, MA 02110-1727 For Questions: 800-448-5350 MajorAccountTeam1@wolterskluwer.com EXHIBIT A, PAGE 10 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 2 of 31 FEB 2 1 2020 (HPSUM'lOOSUMMONS (CITACION JUDiCJAL) FOR COURT USE ONLY {SOLO PARA USO DE LA COR7E) NOTICE TO DEFENDANT: i^VfSO AL DEMANDADO): AETHA RESOURCES r LLC aJLso )cnown as AETNA; and, Does I'-lOO E-FILED 10/31/19 Superior Court of California County of Fresno By: J. Nelson, Deputy ‘ YOU ARE BEING SUED BY PLAINTIFF: (LO EStA DEMANDANDO EL DEMANDANTE): rtONIKA. AGUTRRE, an individual NOTTCEIjYou have been sued. The court maydedde against you without your being heard unless you respond within 30 days. Reed the Information below. ! You have 30 CALENDAR DAYS after this summons and legal papers are served on you to fib a written response at this court and have a copy served oi^ the plaintiff. A letter or phone call will not protect you, Your written response must be In proper legal form ff you want the court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more Information at the California Courts Online Self-Help Center (wvAv.courUnfo.ca.gov/sBlfhelp), your county law library, or the courthouse nearest you. If cannot pay the filing fee, ask the court clerk for a fee waiver form. If you do not Tie your response on time, you may lose the rase by default, and your wages, money, and property may be taken without further warning from the court There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate these nortprofit groups at tho California Legal Services Web site (vAvwJ3whelpcBllfornla.org). the Caltfomia Courts Online Self-Help Center (www.courHnfo.ca.gov/seIfhelp), or by contacting your local court or county bar assodation. NOTE: The court has a statutory ibn for waived fees and costs on any settlement or arbitration award of $10,000 or more In a civil case. The court's lien must be paid before the court will dismiss the case. lAVlSOl La ban demandado. Si no responds dentro de 30 diaa, la corte puede decldlr an su contra sin escuchar su versidn. Lea la Inhrmacldn a contlnuatidn. TJeno 30 P/AS DE CALENDARIO despuds de quo la entreguen esta cltaddn y papaies legales para prsssnfar una laspueste por ascrito en esta corfey/racer qi/e seenfregi/e una capla af dafnandante. Una carta o unaUamade tdefdnica no h proven. Suraspuesta por escrito Vane qua eslar en formato legal cotrado si desea qua procesen su case an la corta. Es posibla que hayq un formulario qua usted pueda user para su respuasta. PuBda oncontrar ostos formularios da la corte y mds Informacldn en el Centro de Ayuda da las Codes de CaBfomla eci.or Court 1130 "O” Street Fresno CA 93724 The name, address, and telephone number of pl^hllff s attorney, or plaintiff without an attorney. Is: (3 rjombre, la direeddn y el nOmero da telifono del abogado del demandarrie, o del demandante que no tlene abogado, es): Larry U. Sharpaaian (SBN #120197) Tel: (SS9) 277-7300 Toaiia8s;|.an, Fijnentel & Shapazlan 3419 Wl Shaw Ave., Fresno, CA J Fax: (559) 277-7350 93711 J. NelsonDATE: (Fecha) Clerk, by ______ fSecrete^J- _________ (For proof of serydee of this summons, use Proof of Service oTSummons (form PO^fOj.) (Para piueba de entrega de esta dtaclon use el formulario Proof of Service of Summons, (POS-OIO)). NOTICE TO THE PERSON SERVED: You are served as an individual defendant. as the person sued under the flctttious name of (spedfy): , Deputy (Adjunfo) I 10/31/2019 tI (SEAIJ ACTKA fesC)0(2CES^ CJLC Atso ViAouiA r>V. )1 14 )I jAETNA RESOURCES, LLC also known as AETNA; and, Does 1-100, ) * 15 Unlimited Civil Case) )! 16 Defendants. !)}. f 17 JURY TRIAL DEMANDED ) 18 ). ■ 19 : •• 20 I ! 21 22 COMES NOW, plaintiff MONIKA AGUIRRE and complains of defendants as follows:23 24 i25 PRELIMCNARY ALLEGATIONS 26 1. 27 Plaintiff MONIKA AGUIRRE is a resident of the County of Fresno, State of CaEfonua. i 26 /// ; Monika Aguirre's Complaint 1 i EXHIBIT A, PAGE 12 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 4 of 31 1 2. 2 Plaintiff MONIKA. AGUIRRE is informed and believes, and thereby alleges that defendant AETNA RESOURCES, LLC also known as AETNA, is a business organization, form unknown, which owns and operates an insurance business at 1385' E. Shaw Avenue in Fresno, California 93710. At all times alleged herein, defendant AETNA RESOURCES, LLC also known as AETNA employed more than fifty (50) employees. 3 5i (4 5 I5 ;• i 6 5 ) 7 8 3. 9 Plaintiff MONIKA AGUIRRE is ignorant of the true names and capacities of defendants sued herein as DOES 1 through 100, inclusive, and therefore sues said defendants by such fictitious names. Plaintiff MONIKA AGUIRRE will amend this complaint to allege their true names and capacities when ascertained. Plaintiff MONIKA AGUIRRE is informed and believes and thereon alleges, that each of the fictitiously named defendants is responsible in some manner for the occurrences herein alleged and that plaintiff MONIKA AGUIRRE’S injuries as herein alleged were proximately caused by the aforementioned defendants. 1 10 z i11< t N< SO 12Q_< o X ^ <2 -^ 13 i^i|5sri4 gwoS Ig g g 15 •; ■ ! i> iS-16 w« fEl^ ^ M i 4. I< O 18 Plaintiff MONIKA AGUIRRE is informed and believes, and thereon alleges, that each of the defendants herein is, and at all times herein mentioned, relevant to the action, was, the agent and employee of the co-defendants and was acting within the course and scope of that relationship. Plaintiff MONIKA AGUIRRE is further informed and believes and thereon alleges that each of the defendants gave consent to ratify and authorized the acts herein alleged as to each of the remaining defendants. H i 19 20 21 22 23 24 25 5. 26 The unlawful employment practices complained of herein occurred in the County of Fresno, State of CaUfomia.27 28 /// MONIKA AGUIRRE'S Complaint 2 ■ : EXHIBIT A, PAGE 13 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 5 of 31 ( 1 6. Plaintiff MONIKA AGUIRRE is in a group protected by the Fair Employment and Housing Act (FEHA); here, Disability. 2 ■; 3 51• .• < i4 ■: t f 5 1 E 6 FIRST CAUSE OF ACTION [Statutory Discrimination (Government Code sections 12940) brought against defendant AETNA RESOURCES, LLC also known as AETNA ] The plaintiff incorporates herein by reference and re-alleges paragraphs 1 through 6 of the PRELIMINARY ALLEGATIONS. i E7 I 8 \ 9 I10 I 2 11 1.< I 9 O. » On or about April of 1991, defendant AETNA RESOURCES, LLC also known as AETNA hired plaintiff MONIKA AGUIRRE as a Claims Processor. On November 1, 2017, defendant AETNA RESOURCES, LLC also known as AETNA wrongfully terminated plaintiff MONIKA AGUIRRE from her employment. At the time of plaintiff MONIKA AGUIRRE’S termination of employment, she was a Director of Third Party Administrators. This was a full time job. o 12 f.3 I< O 18 i 19 2. In April of 2010, plaintiff MONIKA AGUIRRE underwent a gastric bypass surgical procedure. Prior to the surgical procedure, plamtififMONIKAAGUIRRE was informed that people who undergo a gastric bypass procedure could become dependent on drugs and alcohol. In 2012, plaintiff MONIKA AGUIRRE’S became an alcoholic. As aresult, plaintiff MONIKA AGUIRRE has a disability. 20 i 21 -> 22 23 24 25 26 /// 27 I/// 28 /// 5 t }.MONIKA AGUIRRE's Complaint 3 I 1 EXHIBIT A, PAGE 14 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 6 of 31 i3.1 Defendant AETNA RESOURCES, LLC also known as AETNA has numerous social functions connected with work where free alcohol is served. Plaintiff MONIKA AGUIRRE was required to attend these functions and found herself drinking too much alcohol. 2 3 i i4 ! i 5 i i i4.6 •; ) On or about April of 2017, plaintiff MONIKA AGUIRRE attended an Aetna work function in New Orleans, Louisiana, where free alcohol was served. Plaintiff MONIKA AGUIRRE drank too much. Defendant AETNA RESOURCES, LLC also known as AETNA was aware that plaintiff MONIKA AGUIRRE drank to much at the function. 7 { 8 9 510 I ■z 11< Q. 5.O 12 Sl3 <2 o ;3X COc On or about May of 2017, Melissa Anderson. Senior Director - Public and Labor of defendant AETNA RESOURCES, LLC also known as AETNA , became plaintiff MONIKA AGUIRRE’S supervisor talked to her about her alcoholism. CO (U m S S SI S ^ is 2 ^ IS So w ^ o 14 I ! H 6.CO 17< On October 23,2017, plaintiff MONIKA AGUIRRE attended a work function of defendant in Las Vegas, Nevada where free alcohol was served. She drank too much. Subsequently, on or about October 26,2017, Melissa Anderson contacted plaintiff MONIKA AGUIRRE regarding the Las Vegas, Nevada party. Melissa Anderson told plaintiff MONIKA AGUIRRE that she was concerned about her drinking. In response, plaintiff MONIKA AGUIRRE asked for a reasonable accommodation; she Melissa Anderson that she was going to call the Employee Assistance Program (EAP) and get treatment. o 18 iI- 19 20 21 22 23 24 25 ///26 ///27 ///28 MONIKA AGUIRRE'S Complaint 4 EXHIBIT A, PAGE 15 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 7 of 31 ' 7. i1 On October 31,2017, intbe morning, plaintiff MONIKA AGUIRRE called Melissa Anderson and told her that EAP recommend in-patient treatment and that she was scheduled to enter the Herndon Recovery Center in Fresno, California on November 13, 2017. Plaintiff MONIKA AGUIRRE also informed Melissa Anderson that she would be out for 2 - 4 weeks. Then, plaintiff MONIKA AGUIRRE asked Melissa Anderson as to who she should re-assign her work toi whether she would still be attending the Michigan trip in November of 2017, and, inquired about her expense report from the Las Vegas, Nevada trip. Melissa Anderson told plaintiff MONIKA AGUIRRE that she should start the treatment earlier due to the gravity of the situation and to cancel the Michigan trip. 2 I ! 3 i •;4 1 ! 5 I 6 I7 8 *i 9 \ { 110 5 z 11 i< 3 CL 8.o 12 I0) X ^ Qj 5 S ^ ”rn b. r* So £■ 16 was i 3 I 1- 17CO< O •18 9.19 iAt no time prior to October 31, 2017, did defendant AETNA RESOURCES, LLC also known as AETNA ever take any action to accommodate plaintiff MONIKA AGUIRRE regarding my disability. 20 ; 21 22 ! 23 10.24 Defendant AETNA RESOURCES, LLC also known as AETNA failed to engage in the interactive process with plaintiff MONIKA AGUIRRE. 25 26 !27 I ///28 I i I 5MONIKA AGUIRJRE 'r Complaint \ EXHIBIT A, PAGE 16 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 8 of 31 1 11.1 Defendant AETNA RESOURCES, LLC also known as AETNA failed to provide plaintiff2 i. MONIKA AGUIRRE with a reasonable accommodation.3 I i4 12.5 Between April of 2017 and November 1, 2017, defendant AETNA RESOURCES, LLC also known as AETNA discriminated against plaintiff MONIKA AGUIRRE because of an actual i6 V I 7 ! jand/or perceived disability.8 ! 9 I13.10 Plaintiff MONIKA AGUIRRE had a record or history of a physical disability under California Government Code section 12926(1)(3); was regarded or treated by defendant AETNA RESOURCES, LLC also known as AETNA having a physical disability under Government Code section 12926G)(4); was regarded or treated by defendant AETNA RESOURCES, LLC also known as AETNA as having had a physical disability under Government Code section 12926(1)(4); was regarded or treated by defendant AETNA RESOURCES, LLC also known as AETNA as having a condition that has no present disabling effect but may become a physical disability under Government Code section 12926(1)(5); and/or, was regarded or treated by defendant AETNA RESOURCES, LLC also known as AETNA as having had a condition that has no present disabling effect but may become a physical disability under Government Code sectioii 12926(1)(5). 2 11< iF5 < o 12 IQ.< m o X CO m $ o)}- 2 < ro S W 1 S g ^ IS So & 16 CO 17CO< o 18I- 19 i 20 { 21 i 22 14.23 ! Plaintiff MONIKA AGUIRRE was subjected to differential treatment and terminated from her employment with defendant AETNA RESOURCES, LLC also known as AETNA, because of an actual disability and/or perceived disability. 24 25 :26 27 ; i///28 ii I ii IMONIKA AGUIRRE's Complaint 6 1 i EXHIBIT A, PAGE 17 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 9 of 31 15.1 Defendant AETNA RESOURCES, LLC also known as AETNA’S discriminatory actions against plaintiff MONIKA AGUIRRE in terminating her from her employment constituted unlawful discrimination on account of plaintiff MONIKA AGUIRRE’S disability in violation of Government Code §12940 etseq. 2 3 4 5 5 ; 6 i ;16.7 5 Defendant AETNA RESOURCES, LLC also known as AETNA’S discriminatory actions against plaintiff MONIKA AGUIRRE in failing to provide her with a reasonable accommodation constituted unlawful discrimination on account of plaintiff MONIKA AGUIRRE’S disability in violation of Government Code §12940 et seq. 8 i9 I i10 I z 11< I N < !O 12Q. ;■ < « o ^ C CO V T- HO \ 17. i! UJ ^ S SI 15 ^.5 s| z^u. g- 16 iSome of the actions alleged paragraphs 1 through 16 occurred at defendant’s place of business in the County of Fresno, State of California. i ! 3 18.17CO< I2 O The actions of defendant AETNA RESOURCES, LLC also known as AETNA’S , LLC18 I referred to in paragraphs 1-16 above, amounted to conduct intended to cause injury to the plaintiff and was despicable in that it was carried on by defendants with willful and conscious disregard of plaintiff’s rights. Also, said actions subjected plaintiff to cruel and unusual hardship in conscious disregard of plaintiff’s rights. 19 ! 20 21 22 23 ///24 ///25 ///26 ///27 ( : i///28 MONIKA AGUIRRE'S Complaint 1 j EXHIBIT A, PAGE 18 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 10 of 31 19.1 Defendant AETNA RESOURCES, LLC also known as AETNA had advance knowledge of the unfitness of its employees and managing agents and employed them with conscious disregard ofthe rights and safety of others. Further, defendant AETNA RESOURCES, LLC also known as AETNA'S authorized and ratified through their officers, directors, managing agents, partners, and owners, the wrongful conduct alleged above. 2 3 i 4 5 i 6 5 •>1 20.8 As a proximate result of defendant’s discriminatory conduct and tortious conduct as alleged above, plaintiff has been harmed in that plaintiff has suffered humiliation, embarrassment, mental anguish, emotional and physical distress, discomfort and has been injured in mind and body. As a result of said discriminatory conduct, and consequent harm, plaintiff has suffered damages in an amount according to proof. 9 5 10 ;Z 11< N ;< o 12Q. I< (U O3X C3c W 5 ' _i 5. 52 CM 14 is Eg 15 S o _ i I 21. i iAs a further and proximate result of defendant’s tortious and discriminatory conduct, as alleged above, plaintiffhas been harmed in that plaintiff has suffered the loss ofwages, benefits, the intangible loss of such employment related opportunities and experience firom which plaintiff was terminated, and additional income and benefits plaintiff would have received from his employment position with defendant. As a result of such tortious and discriminatory conduct, and consequent harm, plaintiffhas suffered damages in an amount according to proof. ZO.U. g. 16 17 25. ■ On October 31,2018, plaintiff MONIKA AGUIRRE filed a Complaint of Discrimination with the California Department of Fair Employment and Housing against defendant AETNA RESOURCES, LLC also known as AETNA . o 12< ^ o ^ c S?W « ^ ^ i -3 ^ S2 CM g CO I S ° g ■’S “■-5 S| & 16 17 I i I ! 1 26.(O< S On September 24, 2019, plaintiff MONIKA AGUIRRE filed an Amended Complaint of Discrimination with the California Department of Fair Employment and Housing against defendant AETNA RESOURCES, LLC also known as AETNA. O 18 » 19 ) 20 21 27.22 1 On or about September 24, 2019, the Department of Fair Employment and Housing issued plaintiff MONIKA AGUIRRE a notice of right to bring civil action against defendants based on the Complaint filed with the Department of Fair Employment and Housing. 23 24 25 26 !///27 28 /// MONIKA AGUIRRE’S Complaint 9 1 EXHIBIT A, PAGE 20 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 12 of 31 i 28.1 No adequate remedy exists at law for the injuries suffered by plaintiff MONIKA AGUIRRE herein, insofar as the employment opportunity that defendant AETNA RESOURCES, LLC also known as AETNA has denied to plaintiff MONIKA AGUIRRE cannot be secured absent injunctive relief. If this court does not grant injunctive relief of the type for the purpose speciiied below, plaintiff MONIKA AGUIRRE will suffer irreparable injury. Therefore, plaintiff MONIKA AGUIRRE requests the following injunctive relief: requiring defendant defendant AETNA RESOURCES, LLC also known as AETNA to prevent disability discrimination from occurring in its workplace. 2 3 I4 I I 5 6 7 i 8 9 ?10 1 i 29.2 11< NJ i< The actions leading up to the plaintiff being tennihated from her employment and plaintiff’s termination of employment were done with malice, fraud, oppression and reckless disregard of the plaintiffs rights as defined by Civil Code section 3294. iO 12 w 5 ^ fr 1 ^ 52in > . 1A 1 S c ^ IS S ° 16 CL i< « o3X c I ! ! [ iSECOND CAUSE OF ACTION [Statutory Discrimination (Government Code sections 12940 et seq) brought against defendant AETNA RESOURCES, LLC also known as AETNA ] The plaintiff incorporates herein by reference and re-alleges paragraphs 1 through 6 of the PRELIMINARY ALLEGATIONS; and, paragraphs 1 through 29 of the First Cause of Action. ! i17CO I< O 18 ' 19 20 21 1.22 . Before the disability discrimination occurred, defendant AETNA RESOURCES, LLC also known as AETNA failed to take all reasonable steps to prevent disability discrimination from occurring in its workplace. 23 24 25 26 ///27 ///28 10MONIKA AGUIRRE'S Complaint 5 EXHIBIT A, PAGE 21 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 13 of 31 THCRB CAUSE OF ACTION [Statutory Failure to Engage in the Interactive Process (Government Code sections 12940 et seq) brought against defendant AETNA RESOURCES, LLC also known as AETNA ] The plaintiff incorporates herein by reference and re-alleges paragraphs 1 through 6 of the PRELIMINARY ALLEGATION; paragraphs 1 through 29 of the First Cause of Action; and, paragraph 1 of the Second Cause of Action. 1 2 3 j ? 4 !5 I 6 ! !7 8 i 1.9 ( f iDefendant AETNA RESOURCES, LLC also known as AETNA failed to engage in a timely, good faith, interactive process with plaintiff MONIKA AGUIRRE to determine a reasonable acconunodation, in response to her requests. 10 S 2 11< Q. o 12 ^3 I(U X iCO UJ 5 s SI I- 2 < oj yr ^ X in is 8 “ 15 “■-S 16 o I FOURTH CAUSE OF ACTION [Statutory Failure to Accommodate a Disability (Government Code sections 12940 et scq) brought against defendant AETNA RESOURCES, LLC also known as AETNA ] The plaintiff incorporates herein by reference and re-alleges paragraphs 1 through 6 of the PRELIMINARY ALLEGATION; paragraphs 1 through 29 of the First Cause of Action; paragraph 1 of the Second Cause of Action; and, paragraph 1 of the Third Cause of Action. 14 ; ;■ ;• i ^ 17CO< 5o 18H 19 *. 20 1.21 Prior to November 1,2017, defendant AETNA RESOURCES, LLC also known as AETNA failed to accommodate plaintiff MONIKA AGUIRRE’S disability, despite plaintiff MONIKA AGUIRRE’S request for an accommodation. .22 23 24 25 ///26 t///27 ///28 MONIKA AGUIRRE's Comphint 11 EXHIBIT A, PAGE 22 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 14 of 31 FIFTH CAUSE OF ACTION [Retaliation (Government Code sections 12945.2 et al) brought against defendant AETNA RESOURCES, LLC also known as AETNA ] The plaintiff incorporates herein by reference and re-^eges paragraphs 1 through 6 of the PRELIMINARY ALLEGATION; paragraphs 1 through 29 of the First Cause of Action; paragraph 1 of the Second Cause of Action; paragraph 1 of the Third Cause of Action; and, paragraph 1 of the Fourth Cause of Action. 1 2 3 ! 4 I 5 i 6 = i7 8 1.9-^ During the time period between October 31,2016 and October 31,2017, defendant AETNA RESOURCES, LLC also known as AETNA employed 50 or more full or part time employees within 75 miles of the location of where plaintiff MONIKA AGUIRRE worked. 10 i 2 11< iNi< o 12 CO 5) *7 A'X -• > 52 g CO O in 1| E g 15 “--S £5 5 ?!“- g- 16 17 Q. !< « o3X COc i '2. i During the time period between October 31,2016 and October 31,2017 plaintiff MONIKA AGUIRRE had worked for one year for defendant AETNA RESOURCES, LLC also known as AETNA and had 1250 hours of service before her request for leave. I ! CO< O 18 3.19 On the morning of October 31, 2017, plaintiff MONIKA AGUIRRE had told her employer that she was taking time off of work due to her disability (alcoholism) and in the afternoon of October 31,2017, defendant AETNA RESOURCES, LLC also known as AETNA told plaintiff MONIKA AGUIRRE that she was being terminated from her employment. 20 21 22 23 24 ///25 ///26 ///27 ///28 MONIKA AGUIRRE's Complaint 12 EXHIBIT A, PAGE 23 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 15 of 31 4.1 Plaintiff MONIKA AGUIRRE’S request for leave under the California Family Rights Act (CFRA) was a substantial motivating reason for defendant AETNA RESOURCES, LLC also known as AETNA terminating her from her employment. Defendant AETNA RESOURCES, LLC also known as AETNA violated plaintiff MONIKA AGUIRRE ’S rights under the California Family Rights Act (Government Code sections 12945.2 et al) for requesting leave. 2 3 » 4 « 5 j 6 I i7 8 i SIXTH CAUSE OF ACTION [Statutory Failure to Prevent Retaliation (Government Code sections I2945.2et seq) brought against defendant AETNA RESOURCES, LLC also known as AETNA ] The plaintiff incorporates herein by reference and re-alleges paragraphs 1 through 6 of the PRELIMINARY ALLEGATION; paragraphs 1 through 29 of the First Cause of Action; paragraph 1 of the Second Cause of Action; paragraph 1 of the Third Cause of Action; paragraph 1 of the Fourth Cause of Action; and paragraphs 1 through 4 of the Fifth Cause of Action. 9 { I10 I [ z 11 i< N ;< o 12Q. <2 o3 II COcw 5 ^ ^ 52 }- 2 < o> z w Sg i 15 ^ Ql W f go § & *16 CO S I 5 ; 5 i 1 i I)1- 117(O I< 5 Retaliation is prohibited under the California Family Rights Act (Government Code sections 12945.2 et al). Before the retaliation occurred, defendant AETNA RESOURCES, LLC also known as AETNA failed to take all reasonable steps to prevent retaliation from occurring in ' its workplace. O 18 ih- 19 I20 21 22 ///23 ///24 ///25 ///26 I///27 ///28 MONIKA AGUIRRE’S Complaint 13 EXHIBIT A, PAGE 24 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 16 of 31 SEVENTH CAUSE OF ACTION [Wrongful Termination of Employment in Violation of Public Policy brought against defendant AETNA RESOURCES, LUC also known as AETNA ] The plaintilT incorporates-herein by reference and re-alleges paragraphs 1 through 6 of the PRELIMINARY ALLEGATION; paragraphs 1 through 29 of the First Cause of Action; paragraph 1 of the Second Cause of Action; paragraph 1 of the Third Cause of Action; paragraph 1 of the Fourth Cause of Action; paragraphs 1 through 4 of the Fifth Cause of Action; and paragraph 1 of the Sixth Cause of Action. 1 2 3 I 4 I 5 6 i I 7 i 8 9 L10 i in 2017, plaintiff MONIKA AGUIRRE complained to defendant AETNA RESOURCES, LLC also known as AETNA and its management, managers, and supervisors regarding unsafe conditions in the worl^lace due to her disability. These were health and safety complaints in the workplace being made to her employer. z 11< •: Fj }< :Q 12 W Q> T- ^ AO UJ 5 ^ 14 l- 2 < <35 IS ^ 2 *15 17 Q. ;•<2 o3X COc i i 1 i 2. I ■Labor Code section 6310 makes it unlawful to fire or otherwise retaliate against an employee who makes a workplace health or safety complaint to the employer. It sets forth in pertinent part: (a) No person shall discharge or in any manner discriminate against any employee because the employee has done any of the following: (1) Made any oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, his or her employer, or his or her representative. CO< I o 18 19 20 ; 21 22 23 24 ///25 ///26 ///27 ///28 14MONIKA AGUIRRE'S Complaint ‘ EXHIBIT A, PAGE 25 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 17 of 31 3.1 Plaintiff MONIKA AGUIRRE’S termination of employment was wrongful because it was in violation of the public policy of the State of California in that plaintiff’s termination was in retaliation for making health and safety complaints in the workplace, and because of plaintiff s MONIKA AGUIRRE’S disability and her taking CFRA leave. 2 3 4 I ?5 5 6 5 i i 4.7 The above-described conduct of defendant AETNA RESOURCES, LLC also known as AETNA constitutes disability discrimination and wrongful termination of plaintiff in violation of public policy embodied in the Fair Employment and Housing Act (Government Code section 12940 et seq). 8 i !9 ] 10 z 11 I< N I< io 12a. i< o3I COc 5.W 5 ^ o uj I SI 14 j- 5 < cn IS i ? ''5 s| 1 ''6 5Additionally, the above-described conduct of defendant constitutes wrongful termination of plaintiff in violation of public policy. Labor Code section 6310 et. seq., embodies fundamental, substantial, and weU-established public policies of the State of California. In discharging plaintiff MONIKA AGUIRRE, defendant violated fundamental, substantial, and well established public policies embodied in Labor Code sections 6310 et. seq. ; !! I \ l- 17w< i5 O 18 II- 19 6.20 Defendants’ discriminatory, retaliatory, and wrongful actions against MONIKA AGUIRRE in subjecting her to differential treatment because of her disability; for the acts which constitute discrimination because of her disability, and terminating plaintiff MONIKA AGUIRRE from her employment because of her disability as alleged above constituted unlawful discrimination on account of plaintiff MONIKA AGUIRRE disabihty in violation of Government Code §12940 et seq and Government Code §12945.2 et seq was unlawful and in violation of public pohcy 21 22 23 24 25 26 27 ; ///28 15MONIKA AGUIRRE'S Complaint \ EXHIBIT A, PAGE 26 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 18 of 31 i !7. ■1 Defendants’ discriminatory and retaliatory actions against plaintiff MONIKA AGUIRRE by terminating her from her employment because she made health and safety complaints was unlawful and in violation of public policy. 2 3 I A4i I \5 i 8.6 i The actions of defendants referred to above, amounted to conduct intended to cause injury to the plaintiff and was despicable in that it was carried on by defendants with willful and conscious disregard of the rights of plaintiff. Further, said actions subjected plaintiff to cruel and unusual hardship in conscious disregard of plaintiff’s rights. i7 8 1 9 10 iz 11< N< 9.O 12 ‘Q.<* 0) I ^ I- is 8 ^ 15 So ■ 16 io !Defendant AETNA RESOURCES, LLC also known as AETNA had advance knowledge of the unfitness of its employees and managing agents and employed them with conscious disregard of the rights and safety of others. Further, defendant AETNA RESOURCES, LLC also known as AETNA authorized and ratified through its officers, directors, managing agents, partners, and owners, the wrongful conduct alleged above. ! I i i I CO 17< o 18 iI- i 10.19 As a proximate result of defendant’s discriminatory conduct and tortious conduct as alleged above, plaintiff has been harmed in that plaintiff has suffered humiliation, embarrassment, mental anguish, emotional and physical distress, discomfort and has been injured in mind and body. As a result of said discriminatory conduct, harassment, and consequent harm, plaintiff has suffered damages in an amount according to proof. 20 '21 22 23 24 25 26 /// ///27 28 /// IMONIKA AGUIRRE's Complaint 16 I 5 EXHIBIT A, PAGE 27 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 19 of 31 11.1 As a further and proximate result of defendant’s tortious, retaliatory, and discriminatory conduct, as alleged above, plaintiff has been harmed in that plaintiff has suffered the loss of w^es, benefits, the intangible loss of such employment related opportunities and experience fi-om which plaintiff was terminated, and additional income and benefits plaintiff would have received fit)m her employment position with defendant. As a result of such tortious, discriminatory, harassing conduct, and consequent harm, plaintiff has suffered damages in an amount according to proof. 2 3 4 4 ! [ 5 5 i 6 5 7 ! I 8 i 9 ! { 12.10 i As a further and proximate result of defendant's tortious, retaliatory, and discriminatory conduct as alleged above, plaintiff will need to employ physicians, psychologists and other medical persormel; all to her further damage in an amount according to proof. 2 11< } N )< o 12CL < ® O MS'-” -13 K J2 < cn m ^ -S. 15 “--S si 5?!'^ g-16 £ 17 \ I : } 13. 1 IDefendant AETNA RESOURCES, LLC also known as AETNA and each of them acted for the purpose of causing plaintiff to suffer financial loss and severe emotional distress and physical distress and is guilty of oppression and malice, justifying an award of exemplary and pumtive damages. Iw< O 18I- 19 20 •: 21 PRAYER WHEREFORE, plaintiff MONIKA AGUIRRE prays for judgment against defendants, and each of them, as follows: 1. For special damages according to proof, including, but not limited to, past and future earnings, employee benefits, cost of seeking employment, and past and future medical 22 23 24 25 26 27 !expenses; ! ///28 MONIKA AGUIRRE'S Complaint 17 i 1 EXHIBIT A, PAGE 28 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 20 of 31 2. For general damages or compensatory damages according to proof, including, but not limited to, emotional, physical and mental distress, humiliation, mental anguish, embarrassment, discomfort, pain and suffering; 3. For prejudgment interest on the amount owed to plaintiff according to proof, including, but not limited to interest at the legal rate for lost earnings and benefits and interest at the legal rate for unpaid wages and benefits fi’om on or about November 1,2017; 4. For punitive damages in an amount to punish defendants for their wrongful conduct and to deter them firom engaging in similar conduct as it pertains to the First, Second, Third, Fourth, Fifth, Sixth, and Seventh causes of action; 5. For reasonable attorneys fees; including, but not limited to those available under Government Code Section 12940 et seq; Government Code section 12945.2 et seq; Government Code section 12965; and, any other applicable statute or legal princij3!e 6. For preliminary and permanent injunctive relief against defendant AETNA RESOURCES, LLC also known as AETNA as specified in Paragraph 28 of the First Cause of Action; 1 2 3 J 4 5 i 6 f7 8 9 10 iZ 11< 5! Q. 5 w S ^ ” 13 : UJ S « O CD 15 zoli. Q. 16 14 I IFor costs of suit and expert witness fees incurred by plaintiff; and. For such other and further relief as this court may deem proper. 7. 18.w 17< o 18 TOMASSIAN, PIMENTEL & SHAPAZIANDATED: October 30, 201919 20 ■ 21 22 ,^AZIAN {/ • Attorneys for Plaintiff MONIKA AGUIRRE, an individual 23 24 ///25 ///26 ///27 ///28 MONIKA AGUIRKE's Complaint 18 i EXHIBIT A, PAGE 29 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 21 of 31 1 DEMAM> FOR JURY TRIAL 2 !!Plaintiff MONIKA AGUIRRE demands a trial by jury..3 !4 5 fTOMASSIAN, PMENTEL & SHAPAZIANDATED: October 30, 2019 {5 ? 6 1 I t By:7 LARRY H. SHAPAZIAN Attorneys for Plaintiff'MONIKA AGUIRRE, an individual 8 9 I !10 I i2 11< o 12 iQ. < ® O 14 1 $ g g 15 “■-S el 16 ^ 17 ; i ; j ; 1 ! i!ICO<5O 18h- i 19 20 21 22 23 24 25 26 27 I 28 I MONIKA AGUIRRE’S Complaint 19 5 EXHIBIT A, PAGE 30 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 22 of 31 ‘ SUPERIOR COURT OF CALIFORNIA • COUNTY OF FRESNO Civil Unlimited Department, Central Division 1130 "O" Street Fresno, Californio 93724-0002 (559) 457-1900 FOR COURT USE ONLY 1 10/31/2019 Filed by Court TTTLEOF CASE: i Monika Aguirre vs. AETNA Resources, LlC ! NOTICE OF CASE MANAGEMENT CONFERENCE AND ASSIGNMENT OF ____ _______ __ JUDGE FOR ALL PURPOSES CASE NUMBER: t19CECG03954 i iTo All Parties and their Attorneys of Record; Larry H. Shapazlan This case has been assigned to Rosemary McGuire, Judge for all purposes. All future hearings will be scheduled before this ossigned Judge. i I ! } You are required to appear at a Case Management Conference on 03/04/2020 at 3:30 PM in Department 402 of the court located at 1130 "O" Street, Fresno, California. You must comply with the requirements set forth in Fresno Superior Court Local Rule Chapter 2. Failure to appear at the conference may result in imposition of sanctions, waiver of jury trial, or other adverse consequences. Defendants:- Appearance dt the Case Mapagemerit Conference does not excuse you from having to file your response iri proper legal foifri within ^ dq^ after the Surnmpns is'served on you, You could lose th'e case if you do not file your response on time. If you do not know qn attorney, and do not have dhe. you may call dn' dttorhey referral service'or a legal aid office (//sfed /n the phone book). : 1 I I \ I I DECLARATION II declare under penalty of perjury under the laws of the State of California that I gave a copy of the Notice of Case Management and Assignment of Judge for All Purposes to the person who presented this case for filing. Clerk, by Jamie NelsonDote: 10/31/2019 ^•Deputy ■ < ' CV-4S R03-O9 NOTICE OF CASE MANAGEMENT CONFERENCE AND ASSIGNMENT OF JUDGE FOR ALL PURPOSES I 3 I i 1 { i EXHIBIT A, PAGE 31 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 23 of 31 Alternative Dispute Resolution Information Packet 5 i Overview & History { jAlternative Dispute Resolution (ADR) is an increasingly popular option that allows people to resolve disputes outside of court in a cooperative manner. ADR can-be faster, cheaper, and less stressful than going to court. Most importantly, the use of ADR can provide greater satisfaction with the way disputes are resolved. i ! i ADR has been gradually evolving within the Fresno Superior Court for the past several years. In 1999 the Court recognized a need for greater public access to dispute resolution for cases and established an ADR Department. This department assists parties by providing information regarding ADR processes and services. I i Civil Standing Order Regarding ADR: i iIn 2006, a Case Management Conference (CMC) Standing Order 07-0628, was implemented requiring parties in general civil cases filed in Fresno County Supenor Court fo participate in ADR prior to trial. This order and supporting ADR forms can be found on the courts website, www.fresno.courts.ca.gov underthe "Fomis/'secf/on. P/ease note, part/c/pat/on/n AD/? does nof eliminate the need for proper and timely filing of case documents, such as an Answer to Complaint Disputes i ! ADR techniques have been used successfully in a variety of disputes involving individuals, small and large businesses, government, and the general public. Various types of ADR processes are available depending on the nature of the dispute. Many types of conflict often lend themselves to an alternative and informal method of dispute resolution. Some examples of disputes often settled by ADR include but are not limited to: • Business disputes- contracts, partnerships • Property / Land use disputes- property transfers, boundaries, easements .• Family disputes - divorce, property, custody, visitation, support issues • Consumer / Collection disputes- repairs, services, warranties, debts • Employment disputes- employment contracts, terminations • Landlord/tenant disputes- evictions, rent, repairs, security deposits • Neighborhood disputes / Relational disputes or other civil or personal conflicts • Personal Injury / insurance disputes- arcidents, coverage, liability Processes: The most common forms of ADR are Mediation, Arbitration, and Case Evaluation. In most ADR processes, a trained, impartial person decides or helps the parties reach resolution of their dispute together. The persons are neutrals who are normally chosen by the disputing parlies or by the court. Neutrals can often EXHIBIT A, PAGE 32 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 24 of 31 help parties resolve disputes without having to go to court or trial. Below is a description of commonly used processes: Mediation I In mediation, the mediator (a neutral) assists the parties in reaching a mutually acceptable resolution of their dispute. Unlike lawsuits or some other types of ADR, the mediator does not decide how the dispute will be resolved, the parties do. It is a cooperative process guided by the mediator to create an agreement that addresses each person’s interests. Mediation often leads to better communication between the parties and lasting resolutions. It is particularly effective when parties have a continuing relationship, such as neighbors or businesses. It also is very effective where personal feelings are getting in the way of a resolution. Mediation normally gives the parties a chance to express their concerns in a voluntary and confidential process while working towards a resolution. The mediation process is commonly used for most civil case types and can provide the greatest level of flexibility for parties. ! 1 i 1 Arbitration i :In arbitration, the arbitrator (a neutral) reviews evidence, hears arguments, and makes a decision (award) to resolve the dispute. This is very different from mediation whereby the mediator helps the parties reach their own resolution. Arbitration is generally quicker, less expensive and less fornial than a lawsuit. An arbitrator can often hear a case in a matter of hours rather than days in a trial. This is because the evidence can be submitted by documents rather than by testimony. i 1. Binding Arbitration: Usually conducted by a private arbitrator, this process takes place outside of the court. "Binding" means that the arbitrator's decision (award) is final and there will not be a trial or an opportunity to appeal the decision. 2. Non-Binding Arbitration: May be ordered through the court (Judicial Arbitration) or conducted privately. In this process, the arbitrator's decision is "not binding." This means that if a party is not satisfied with the decision of the arbitrator, they can file a request for trial with the court within a specified time. However, depending on the process if that party does not receive a more favorable result at trial, they may have to pay a penalty. I ■: i i Case Evaluation In case evaluation, the evaluator (a neutral) gives an opinion on the strengths and weaknesses of each party's evidence and arguments. Each par^ gets a chance to present their case and hear the other side. This may lead to a settlement, or at the least, help the parties prepare to resolve the dispute later. Case evaluation, like mediation, can come early in the dispute and save time and money. The case evaluation process is most effective when parties have an unrealistic view of the dispute, need outside assistance in determining case value, and have technical or procedural questions to be worked out. This process is sometimes used in combination with mediation or arbitration. EXHIBIT A, PAGE 33 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 25 of 31 ADR Agreements: Agreements reached through ADR are normally put into writing and can become binding contracts that are enforceable in court. Parties may choose to seek the advice of an attorney as to your legal rights and other matters relating to the dispute before finalizing any agreement. ADR Process Selection & Information: There are several other types of ADR. Some of these include Conciliation, Settlement Conference, Fact Finding, Mini-Trial, Victim Offender Conferencing, and Summary Jury Trial. Sometimes parties will try a combination of ADR types. The important thing is to find the type of ADR that is most likely to resolve the dispute. Contact the ADR department staff for assistance for additional information and referral to services appropriate for each specific case. Advantages & Disadvantages of ADR: 1 } Advantages ,m Often quicker than going to trial, a dispute may be resolved in a matter or days or weeks instead of months or years. • Often less expensive, saving the litigants court costs, attorney's fees and expert fees. • Permits more participation and empowerment, allowing the parties the opportunity to tell their side of the story and have more control over the outcome. • Allows for flexibility in choice of ADR processes and resolution of the dispute. • Fosters cooperation by allowing the parties to work together with the neutral to resolve the dispute and mutually agree to a remedy. ,• Often less stressful than litigation. Most people have reported a high degree of satisfaction with ADR. i I i I I IBecause of these advantages, many parties choose ADR to resolve disputes Instead of filing a lawsuit. Even after a lawsuit has been filed, the court can refer the dispute to a neutral before the lawsuit becomes costly. ADR is even used to resolve disputes after trial, when the result is appealed. } Disadvantages • ADR may not be suitable for every dispute. :• If the ADR process is binding, the parties normally give up most court protections, including a decision by a judge or jury under formal rules of evidence and procedure, and review for legal error by an appellate court. • ADR may not be effective if it takes place before the parties have sufficient information to resolve the dispute. • The neutral may charge a fee for his or her services. If the dispute is not resolved through ADR, the parties may then have to face the usual and traditional costs, such as attorney's fees and expert fees. • Lawsuits must be brought within specified periods of time, known as Statutes of Limitations. Parties must be careful not to let a Statute of Limitation run while a dispute is in an ADR process ■; EXHIBIT A, PAGE 34 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 26 of 31 Neutral Selection: The selection of a neutral is an important decision. Please note that currently there is no legal requirement that the neutral be licensed or hold any particular certificate. However, many programs and the Court have established qualification requirements and standards of conduct for their neutral panels. i 1 i Mediation Services Offered by Fresno County Superior Court i •; Mediation Practitioner Panel: i iFresno County Superior Court. Alternative Dispute Resolution (ADR) Department maintains a fee-for- service Mediation Panel as a public service for court litigants and the community. Those listed have met the Court’s eligibility requirements and have agreed to abide by the Court’s professional standards of conduct in order to participate as a panel member. The panel list can be found on the Court’s website under the Alternative Dispute Resolution link, www.fresno.courts.ca.qov/altemative dispute resolution/Mediator 1 i }■ Free / Low Cost ADR Service Options For cases involving self-represented litigants or those unable to afford a private mediator, the court contracts with the following organization to provide free or low cost mediation services through Dispute Resolution Pragram Act (DRPA) funding. ! I i !• Better Business Bureau Mediation Center- This organization provides mediation for family law property disputes, small claims, landlord/tenant, business, consumer/merchant, harassment, and neighborhood disputes. For more information about their services go to www.mediationseryicesbvbbb.ora 2600 W. Shaw Lane Fresno, CA 93711 559.256.6300 (phone) 800.675.8118, ext. 300 (toll free) For more information, go to www.'fresno.GourtS;Ca.Qbv/alternative .dispute resolution or contact: Mari Henson, Administrator 1130 “0” Street, Fresno, CA. 93724 TEL (559) 457-1908, FAX (559) 457-1691 fnhenson@fr^ho.courts.ca:qov Camille Valentine, Asst. Administrator 1130 “0” Street, Fresno. CA. 93724 TEL (559) 457-1909, FAX (559) 457-1691 cvalentine@fresno.courts.ca.qov EXHIBIT A, PAGE 35 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 27 of 31 FOR COURT USE ONLYATTORNEY OR PARTY WITHOUT ATTORNEY (Name, state bar number, and address): FAX NO;TELEPHONE NO: ATTORNEY FOR (Name): SUPERIOR COURT OF CALIFORNIA • COUNTY OF FRESNO 1130 "O" Street Fresno, California 93724-0002 (559) 457-1909 PLAINTiFF/PETITIONER: DEFENDANT/RESPONDENT: CASE NUMBER: STIPULATION REGARDING ALTERNATIVE DISPUTE RESOLUTION (ADR) i The parties stipulate that they will engage in the following Alternative Dispute Resolution (ADR) process: □ Mediation □ Arbitration □ Neutral Case Evaluation □ Other _______________________ ! i I }has been selected as the mediator/arbitrator/neutral.The parties further stipulate that I i !Address: _____ _ _____________ _____________________________________ __________________________ City, State, Zip ___________________________________________________ ________________________________ Phone Number: ( )____________ ^_________________________________ _ __^^ The partis acknowledge that they shall engage in sortie form of Alternative Dispute Resolution (ADR), the Alternative Dispute Resolution (ADR) must be completed within 180 days after the Case Management Cpnfereri.ce or prior to ^e Mandatory Settlement Conference, whichever is earlier, unless given prior, approval by the court to continue the date. Parties will be required to file an Alternative Dispute Resolution (ADR) Status Report at least 10 court days prior to the Mandatory Settlement Conference. Failure to do so may result in sanctions at an Order to Show Cause (OSC) hearing set by the court 5 ; ! 1 Signature of Party or Attorney for PartyType or Print NameDate Signature of Party or Attorney for PartyType or Print NameDate Signature of Party or Attorney for PartyType or Print NameDate Signature of Party or Attorney for PartyType or Print NameDate □ Additional signatures on Stipulation Regarding Alternative Dispute Resolution (ADR) Attachment STIPULATION REGARDING ALTERNATIVE DISPUTE RESOLUTION (ADR)TADR-01 R11-11 mandatory EXHIBIT A, PAGE 36 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 28 of 31 FOR COURT USE ONLY SUF?ERIOR COURT OF CALIFORNIA • COUNTY OF FRESNO 1130 "O" Street Fresno. California 93724-0002 (559)457-1909 CASE TITLE: i i i 5CASE NUMBER:STIPULATION REGARDING ALTERNATIVE DISPUTE RESOLUTION (ADR) ATTACHMENT_______ I i * .Signature of Party or Attorney for PartyType or Print NameDate Signature of Party or Attorney for PartyType or Print NameDate Signature of Party or Attorney for PartyType or Print NameDate I Signature of Party or Attorney for PartyType or Print NameDate s iSignature of Party or Attorney for PartyType or Print NameDate I : Signature of Party or Attorney for PartyType or Print NameDate i Signature of Party or Attorney for PartyType or Print NameDate i i TADR.02R11-11 mandatory STIPULATION REGARDING ALTERNATIVE DISPUTE RESOLUTION (ADR) ATTACHMENT Pageloft I; ) EXHIBIT A, PAGE 37 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 29 of 31 ATTORNEY OR.PARPj' WITHOUT ATTORNEY (Name, state bar number, and address): FOR COURT USE ONLY ■■ FAX NO:TELEPHONE NO: ATTORNEY FOR (Name): SUPERIOR COURT OF CALIFORNIA • COUNTY OF FRESNO , 1130 "O" Street Fresno. California 93724-0002 (559) 457-1909 iPLAINTIFF/PETITIONER: I DEFENDANT/RESPONDENT: ! ICASE NUMBER: ALTERNATIVE DISPUTE RESOLUTION STATUS REPORT (ADR) i Type of Civil Case: □ Personal Injury - Property Damage/Auto □ Personal Injury - Property Damage □ Contract □ Other _______ Date Complaint Filed: _______________________ Amount in controversy: □ $0to$25,000 □ $25,000 to $50,000 □ $50,000 to $100,000 □ Over $100,000.00 (specify)____________ Date of Alternative Dispute Resolution (ADR) Conference: ___________________ Name, address, and telephone number of person \vho conducted the Alternative Dispute Resolution (ADR) Conference: ! ! I i i i i iCase resolved by Alternative Dispute Resolution: □ Yes (proper filing of a Notice of Settlement or Dismissal form is required by clerk’s office) □ No Reason: __________________ _________________ _ _________________ t ! Alternative Dispute Resolution process concluded: □ Yes □ No Reason for delay:.________________ Next scheduled hearing date: _______ i ) Type of resolution process used: □ Mediation □ ArbitraUon □ Neutral Case Evaluation □ Other (specify): Case was resolved by: □ Direct Result of ADR Process □ Indirect Result of ADR Process □ Resolution was unrelated to ADR Process If case went through ADR and resolved, estimate the closest dollar amount that was saved in attorney fees and/or expert witness fees by participating in the process. □ $0 □$250 □$500 □$750 □$1,000 □ More than $1,000 (specify) ________________ If case went through ADR and did not resolve, estimate the closest dollar amount of additional costs incurred due to participation in the ADR process. □ $0 □$250 □•$500 ^$750 □$1,000 □ More than $1,000 (specify) ________________________ ! TADR-03 R11-011 mandatory ALTERNATIVE DISPUTE RESOLUTION STATUS REPORT (ADR) Page 1 of: EXHIBIT A, PAGE 38 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 30 of 31 Case Number: t Check 4he closest estimated number of court days you saved in motions, hearings, conferences, trials, etc. as a direct result of this case being referred to this dispute resolution process; □ 1 Day□ 0 Days □ More than 1 day (specify) If the dispute resolution process caused an increase in court time for this case, please check the estimated number of additional court days; i ! I □ 1 Day □ More than 1 day (specify)□ 0 Days I ; I would be willing to use the dispute resolution process again; 5 □ No□ Yes j Please provide any additional comments below regarding your experience with the ADR process: i i I ! 1 i i ! i ! i TADR-03 R11-11 mandatory ALTERNATIVE DISPUTE RESOLUTION STATUS REPORT (ADR) Page 2 of 2 EXHIBIT A, PAGE 39 Case 1:20-cv-00414-NONE-EPG Document 1-1 Filed 03/20/20 Page 31 of 31 EXHIBIT B Case 1:20-cv-00414-NONE-EPG Document 1-2 Filed 03/20/20 Page 1 of 11 4 PARK PLAZA, $U|TE 1100 \RVINE‘ CALIFORN‘A 92614 PAYNE & FEARS LLP ATTORNEYS AT LAW Cas (949) 65141 100 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Daniel F. Fears, State Bar N0. 110573 dff@payncfcars.com Andrew K. Haeffele, State Bar No. 258992 akh@paynefears.com PAYNE & FEARS LLP Attorneys at Law 4 Park Plaza, Suite 1 100 Irvine, California 92614 Telephone: (949) 851-1 100 Facsimile: (949) 851-1212 Attorneys for Defendant AETNA RESOURCES LLC MONIKA AGUIRRE, an individual, COUNTY OF FRESNO e 1:20-cv-004l4-NONE-EPG Document 1-2 Filed 03/20/20 Page 2 of 11 E-FILED 3/1 9/2020 9:46 AM Superior Court of California County of Fresno By: A. Ramos, Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA Case N0. 19CECG03 964 Plaintiff, DEFENDANT’S ANSWER T0 v. COMPLAINT OF PLAINTIFF MONIKA AGUIRRE AETNA RESOURCES, LLC, also known as AETNA; and, Does 1-100, Action Filed: October 30, 2019 Defendants. Trial Date: None Set AETNA RESOURCES LLC (“Defendant” 0r “Aetna”) hereby answers the unverified Complaint filed by Plaintiff MONIKA AGUIRRE (“Plaintiff"), as follows: DEFENDANT’S ANSWER TO COMPLAINT EXHIBIT B, PAGE 40 PAYNE & FEARS LLP ATTORNEYS AT LAW 4 PARK PLAZA, SUITE 1100 \RVIN E, CALIFORN \A 9261 4 (949) 351-1 100 Ca 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ge 1:20-cv-004l4-NONE-EPG Document 1-2 Filed 03/20/20 Page 3 of 11 GENERAL DENIAL Pursuant t0 the provisions 0f California Code 0f Civil Procedure section 43 1 .30, subdivision (d), Aetna denies, generally and specifically, each and every allegation contained in the Complaint filed by Plaintiff. Aetna further denies, generally and specifically, that Plaintiff has been damaged in any sum, 0r at all, by reason of any act or omission on the part of Aetna or on the part of any agent or employee of Actna, 0r any of them. AFFIRMATIVE DEFENSES Aetna pleads the following separate defenses. Aetna reserves the right t0 assert additional affirmative defenses that discovery indicates are proper. FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim) 1. The Complaint, and alleged causes of action therein, are barred, in whole or in part, because the Complaint fails to state facts sufficient to constitute a cause of action for which relief may be granted. SECOND AFFIRMATIVE DEFENSE gStatutcs 0f Limitations! 2. The Complaint, and alleged causes 0f action therein, are barred, in whole 0r in part, by the applicable statutes 0f limitation, including but not limited to California Government Code sections 12960(d) and 12965(b); Code OfCiVil Procedure sections 335.1, 338(a), 338(0), 338(d), 340(a), and 343; and any other applicable statutes 0f limitation. -2- DFFENDANT’S ANSWER TO COMPLAINT EXHIBIT B, PAGE 41 PAYNE & FEARS LLP ATTORNEYS AT LAW 4 PARK PLAZA. SUITE 1100 \RVINE. CALIFORN‘A 92614 (949) 351-1 100 Ca 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9e 1:20-cv-00414-NONE-EPG Document 1-2 Filed 03/20/20 Page 4 0f ll THIRD AFFIRMATIVE DEFENSE (Failure t0 Exhaust Administrative Remedies/Lack 0f Jurisdiction) 3. The Complaint, and alleged causes 0f action therein, are baned, in whole or in pan, because the Court lacksjurisdiction over Plaintiff‘s Complaint and claims, 0r the facts alleged in support thereof, due t0 Plaintiff“ s failure to timely exhaust her administrative remedies before the United States Equal Employment Opportunity Commission and/or the California Department of Fair Employment and Housing, FOURTH AFFIRMATIVE DEFENSE (Failure to Exhaust Internal Remedies) 4. The Complaint, and alleged causes 0f action therein, are barred, in whole or in part, by Plaintiff s failure t0 exhaust internal remedies available t0 her as an employee. FIFTH AFFIRMATIVE DEFENSE 1Failure to Utilize Policy! 5. The Complaint, and alleged causes of action therein, are barred, in whole or in part, because Aetna at all relevant times exercised reasonable care to prevent 0r correct any allegedly unlawful behavior in the workplace, including any alleged discrimination, harassment, 0r retaliation, and Plaintiff unreasonably failed t0 take advantage of any preventative 0r con‘ective opportunities provided by Aetna. SIXTH AFFIRMATIVE DEFENSE {Avoidable Conseguences! 6. Plaintiffs prayers for general damages, compensatory damages, and punitive damages regarding each alleged cause of action stated in the Complaint are barred by the doctrine 0f avoidable consequences, as set forth in State Department OfHealth Services v‘ Superior Court (McGinnis), 31 Cal. 4th 1026, 6 Cal. Rptr. 3d 441 (2003), on the grounds that Plaintiff -3- DEFENDANT’S ANSVJER TO COMPLAFNT EXHIBIT B, PAGE 42 PAYNE & FEARS LLP ATTORNEYS AT LAW 4 PARK PLAZA. SUITE 1100 \RVINE. CALIFORN‘A 92614 (949) 351-1 100 Ca 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ‘se 1:20-cv-004l4-NONE-EPG Document 1-2 Filed 03/20/20 Page 5 of 11 unreasonably failed to make use of available complaint procedures and Plaintiff s damages would have been avoided in whole or in part by reasonable use of these procedures. SEVENTH AFFIRMATIVE DEFENSE 1Failure to Mitigate) 7. Any damages or losses allegedly sustained by Plaintiff are barred, in whole or in part, by Plaintiff’s failure to make reasonable efforts to mitigate hcr alleged damages, as required by law. EIGHTH AFFIRMATIVE DEFENSE (MK) 8. Plaintiff s losses, if any, are speculative or uncertain or both, and therefore not compensable. NINTH AFFIRMATIVE DEFENSE (m1 9. The Complaint, and alleged causes 0f action therein, are barred, in whole or in part, because Aetna’s actions with respect t0 the subject matter in each of the alleged causes of action were undertaken in good faith and for good cause, with the absence 0f malicious intent t0 injure Plaintiff, and constitute lawful, proper and justified means t0 further Aetna’s purpose t0 engage in business activities. TENTH AFFIRMATIVE DEFENSE (Failure t0 Complv with Companv Policies) 10. The Complaint, and alleged causes 0f action therein, are barred to the extent Plaintiff failed to comply with the established policies and procedures 0f Aetna. -4- DEFENDANT’S ANSVJER TO COMPLAFNT EXHIBIT B, PAGE 43 PAYNE & FEARS LLP ATTORNEYS AT LAW 4 PARK PLAZA, SUITE 1100 \RVINE. CALIFORN‘A 92614 (949) 351-1 100 Ca 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9e 1:20-cv-00414-NONE-EPG Document 1-2 Filed 03/20/20 Page 6 0f ll ELEVENTH AFFIRMATIVE DEFENSE jUnclean Hands! 11. The Complaint, and alleged causes 0f action therein, are baned, in whole or in pan, by the doctrine 0f unclean hands because 0f Plaintiff’s own conduct and actions. TWELFTH AFFIRMATIVE DEFENSE gEstoppel! 12. The Complaint, and alleged causes 0f action therein, are barred, in Whole or in part, because Plaintiffis estopped from asserting each ofthe claims alleged therein. THIRTEENTH AFFIRMATIVE DEFENSE §Waiver! 13. The Complaint, and alleged causes 0f action therein, are barred, in whole or in part, because Plaintiff has waived the right, by reason of her conduct and actions, t0 assert each of the claims alleged herein. FOURTEENTH AFFIRMATIVE DEFENSE jLachesl l4. The Complaint, and alleged causes 0f action therein, are barred, in Whole 0r in part, by the doctrine oflaches. FIFTEENTH AFFIRMATIVE DEFENSE (After-Acquired Evidence Doctrine) 15. Plaintiff s purported damages are barred, in whole or in part, by the after-acquired evidence doctrine. -5- DEFENDANT’S ANSVJER TO COMPLAFNT EXHIBIT B, PAGE 44 4 PARK PLAZA, SUITE 1100 PAYNE & FEARS LLP \RVINE, CALIFORN‘A 92614 (949) 8514 100 Ca 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3e 1:20-cv-00414-NONE-EPG Document 1-2 Filed 03/20/20 Page 7 0f 11 SIXTEENTH AFFIRMATIVE DEFENSE (Workers’ Compensation Exclusivitv) 16. Plaintiff is not entitled to recovery of any compensatory 0r other monetary damages from Aetna for any alleged vexation, injury 0r annoyance, 0r physical, mental 0r emotional distress or discomfort, or negligent or intentional acts on the grounds that Plaintiff s exclusive remedy for such alleged injury arises under the California Workers’ Compensation Act (“WCA”) and exclusive jurisdiction over such claims is vcstcd in thc California Workers’ Compensation Appeals Board (“WCAB”), California Labor Code Section 3600 ct seq., and that Plaintiff failed t0 pursue and/or exhaust her remedies, ifany, under the WCA 0r before the WCAB. SEVENTEENTH AFFIRMATIVE DEFENSE (Punitive Damages Unconstitutional) 17. Plaintiff is not entitled to recover any punitive 0r exemplary damages as prayed for in the Complaint 0n the grounds that any award of punitive or exemplary damages under California law, in general, or an award under California law, as applied t0 the facts 0f this specific action, would Violate Aetna’s constitutional rights under provisions of the United States and California Constitutions, including, but not limited t0, the due process clauses of the Fifth and Founeenth Amendments to the United States Constitution. EIGHTEENTH AFFIRMATIVE DEFENSE (Punitive Damages Not Recovcrablc Against Corporate Defendant) 18. Plaintiff is not entitled t0 recover punitive or exemplary damages from Aetna for the alleged acts referred t0 in the Complaint on the grounds the alleged acts were not committed by an officer, director 0r managing agent. nor were they authorized or ratified by an officer, director 0r managing agent, nor did Aetna, its officers, directors 0r managing agents have advance knowledge 0f the unfitness, if any, 0f the employees who allegedly committed the acts, nor did Aetna employ the employees with a conscious disregard of the rights and safety of others. -6- DEFENDANT'S ANSWER TO COMPLAINT EXHIBIT B, PAGE 45 PAYNE & FEARS LLP ATTORNEYS AT LAW 4 PARK PLAZA. SUITE 1100 \RVINE. CALIFORN‘A 92614 (949) 351-1 100 Ca 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9e 1:20-cv-00414-NONE-EPG Document 1-2 Filed 03/20/20 Page 8 0f ll NINTEENTH AFFIRMATIVE DEFENSE (Treatment N0 Different in the Absence 0f Discriminatorv 0r Retaliatorv Motive) 19. The Complaint, and alleged causes 0f action therein, are barred in whole 0r in part on the grounds that even assuming, arguendo, that any discriminatory 0r retaliatory motive existed, which it did not, Plaintiff would have been treated no differently in the absence of such discriminatory or retaliatory motive. TWENTIETH AFFIRMATIVE DEFENSE {Legitimate Business Reasons) 20. Plaintiff’ s complaint, and alleged causes 0f action therein, are barred in Whole or in part on the grounds that Aetna’s actions were made for legitimate, 110n-discriminatory and non- retaliatmy business-related reasons. TWENTY-FIRST AFFIRMATIVE DEFENSE (Bona Fide Occupational Requirement) 21. The Complaint, and alleged causes of action therein, are barred, in whole or in part, because Aetna was entitled to consider Plaintiff s disability, to the extent she is a qualified individual with a disability, as a job requirement because of a bona fide occupational requirement. TWENTY-SECOND AFFIRMATIVE DEFENSE (Failure/Rcfusal to Engage in Interactive Process) 22. The Complaint, and alleged causes 0f action therein, are barred, in whole or in part, because Plaintiff failed and/or refused to engage in meaningful discussions or participate in the interactive process with Aetna. -7- DEFENDANT’S ANSVJER TO COMPLAFNT EXHIBIT B, PAGE 46 PAYNE & FEARS LLP ATTORNEYS AT LAW 4 PARK PLAZA, SUITE 1100 \RVIN E. CALIFORN \A 9261 4 (949) 35141 100 Ca 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3e 1:20-cv-00414-NONE-EPG Document 1-2 Filed 03/20/20 Page 9 0f ll TWENTY-THIRD AFFIRMATIVE DEFENSE (Failure t0 Request a Reasonable Accommodation) 23. The Complaint, and alleged causes 0f action therein, are barred, in whole or in part, to the extent Plaintiff failed to request a reasonable accommodation for her purported disability. TWENTY-FOURTH AFFIRMATIVE DEFENSE gArbitrationL 24. The Complaint, and all alleged causes 0f action therein, are improperly before this Court because Plaintiff agreed t0 submit her Claims against Defendant t0 final and binding arbitration. ADDITIONAL AFFIRMATIVE DEFENSES 25. Because Plaintiff’s allegations and causes of action are stated in vague and conclusory terms, Aetna cannot fully anticipate each affirmative defense that may be applicable to this action. Accordingly, Aetna reserves the right to plead additional affirmative defenses, if and t0 the extent that such affirmative defenses are available. WHEREFORE, Aetna prays for relief as follows: 1. That the Complaint be dismissed, with prejudice and in its entirety; 2. That Plaintifftake nothing by reason 0f this Complaint and that judgment be entered against Plaintiff and in favor 0f Aetna; 3. That Aetna be awarded its attorneys’ fees and costs incurred in defending this action; 4. That Aetna be granted such other and further relief as the Coun may deem just and proper. -3- DEFENDANT’S ANSWER TO COMPLAINT EXHIBIT B, PAGE 47 4 PARK PLAZA. SUITE 1100 PAYNE & FEARS LLP WRVINE. CALIFORN‘A 92614 Cas (949) 351-1 100 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: March 19, 2020 483 1-8029-2269.1 E 1:20-cv-OO414-NONE-EPG Document 1-2 Filed 03/20/20 Page 10 of 11 PAYNE & FEARS LLP By: /s/ Andrew K. Haeffele DANIEL F. FEARS ANDREW K. HAEFFELE Attorneys for Defendant AETNA RESOURCES LLC -9- DEFENDANT’S ANSWER TO COMPLAFNT EXHIBIT B, PAGE 48 PAYNE & FEARS LLP JAM BOREE CENTER, 4 PARK PLAZA, SUITE 1 100 IRVINE, CALIFORNIA 92614 (949) 851-1 1 oo Cas 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 e 1:20-cv-00414-NONE-EPG Document 1-2 Filed 03/20/20 Page 11 of 11 PROOF 0F SERVICE Monika Aguirre v. Aetna Resources, LLC Fresno County Superiur Court Case N0. I9CECG03964 STATE OF CALIFORNIA, COUNTY OF ORANGE At the time 0f service, l was over 18 years 0f age and not a party to this action. l am employed in the County 0f Orange, State 0f California. My business address is Jamboree Center, 4 Park Plaza, Suite 1100, Irvine, CA 92614. On March 19, 2020 I scrvcd true copies of thc following document(s) described as DEFENDANT’S ANSWER TO COMPLAINT 0F PLAINTIFF MONIKA AGUIRRE 0n the interested parties in this action as follows: Larry H. Shapazian, Esq. Attorneys for Plaintiff TOMASSIAN, PIMENTEL & SHAPAZIAN MONIKA AGUIRRE A Professional Law Partnership 3419 W. Shaw Avenue Fresno, CA 93711 Tel: (559) 277-7300 Fax: (559) 277-7350 BY ONELEGAL.COM: I served the within document(s) by submitting an electronic version via upload t0 www‘onelegalfiom. I declare under penalty ofperjury under the laws of the State of California that the foregoing is true and correct. Executed on March 19, 2020, at Irvine, California. /s/ Terri M. Shaw Terri M. Shaw PROOF OF SERVICE EXHIBIT B, PAGE 49 PAYNE & FEARS LLP ATTORNEYS AT LAW JAMBOREE CENTER, 4 PARK PLAZA, SU‘TE 1100 IRVINE, CALIFORNIA 9261 4 (949) 851-1 100 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 1:20-cv-00414-NONE-EPG Document 1 Filed 03/20/20 Page 10 0f 10 PROOF OF SERVICE Monika A uirre v. Aetna Resources, LLC United tates District Court Case N0. 1220-at-207 STATE OF CALIFORNIA, COUNTY OF ORANGE At the time 0f service, Iwas over 18 years of age and n_0t a party t0 this action. I am employed 1n the Count 0f Orange, State OfCallfornla. My busmess address 1s Jamboree Center, 4 Park laza, Sulte 1100, Irvme, CA 92614. _ On March 20, 2020, I served true co ies of the followin documentéfifi descnbed as PETITION AND NOTICE F REMOVAL 0_ C_IVI_L A ‘ ION PIHDER 28 U.S.C. §§ 1332 AND 1441 0n the 1nterested partles 1n thls actlon as 0 ows; Larry H. Sha azian, Es . Attorne s for Plaintiff TOMASSIA , PIMEN EL & MONI AGUIRRE SHAPAZIAN .A Professmnal Law Partnershlp 3419 W. Shaw Avenue Fresno, CA 93711 Tel: 559 277-7300 Fax: 559 277-7350 BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy 0f the document(s) to_ be sent frqm e-mall address tshaw@paynefeays.com to the . person at the e-mafl address llsted above. I dld not recqlvq, wgthln a reasonable tlme after th_e transmlssmn, any electronlc message or other 1ndlcat10n that the transmlssmn was unsuccessful. [Federall I declare under penalty 0f perjury under the laws of the United _ States of Amerlca that the foregom ls. true and correct an_d that I am employed 1n thefffice of a member of the bar 0 thls Court at whose dlrectlon the serv1ce was ma e. Executed 0n March 20, 2020, at Irvine, California. /s/ Terri M Shaw Terri M. Shaw PROOF OF SERVICE EXHIBIT B 10 11 12 13 14 15 16 17 18 l9 20 21 22 23 24 25 26 27 28 Case 1:20-cv-00414-NONE-EPG Document 5 Filed 03/20/20 Page 1 0f 7 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA N0. 1:20-CV-00414-NONE-EPGMONIKA AGUIRRE , Plaintiffls)’ ORDER SETTING MANDATORY SCHEDULING CONFERENCE V- DATE: June 9, 2020 AETNA RESOURCES, LLC, gglifi/I lgizfiahMFloor) Defendant(s). ERICA P. GROSJEAN U.S. MAGISTRATE JUDGE Rule 16(b)(2) of the Federal Rules of Civil Procedure ("Fed. R. Civ. P.") requires the Court t0 enter a Scheduling Conference Order within 9O days after any defendant has been served, or 60 days after any defendant has appeared.‘ Therefore, it is ordered that all parties attend a formal Scheduling Conference before United States Magistrate Judge Erica P. Grosjean, in Courtroom 10 at the United States Counhouse, 2500 Tulare Street, Fresno, CA 93721. Service of Summons and Complaint The Court is unable to conduct a Scheduling Conference until the defendant has been served with the summons and complaint. Accordingly, the plaintiff shall diligently pursue service Ofthe summons and complaint and dismiss any defendant the plaintiff n0 longer intends to name in this action. The plaintiff shall promptly file proofs of service of the summons and complaint so the Court has a record of service. Counsel are referred to Fed. R. Civ. P. 4(m), which requires that the complaint 1This order will refer t0 the parties in the singular regardless of the number 0f parties listed in the complaint 10 11 12 13 14 15 16 l7 l8 19 20 21 22 23 24 25 26 27 28 Case 1:20-cv-00414-NONE-EPG Document 5 Filed 03/20/20 Page 2 0f 7 be served within 90 days after the complaint is filed. Failure t0 timely serve the summons and complaint may result in the imposition 0f sanctions, including dismissal 0f unscrvcd defendants. Plaintiffs counsel shall also serve a copy of this Order on the defendant, 0r, if identified, on their counsel, promptly upon receipt 0f this Order. Thereafter, Plaintiff shall file an appropriate proof 0f such service with the Court, in compliance with Rule 135(a) 0f the Local Rules for the Eastern District 0f California. Appearance at Scheduling Conference Attendance at the Scheduling Conference is mandatory for all parties. Parties may appear by their counsel, if represented. If a party is not represented by counsel, they must appear personally at the Scheduling Conference. Teleghonic aggearances are not available tor era se parties, Lg” these ngz rqzrgsgnzed h); gaunsgl. Trial counsel should participate in the Scheduling Conference whenever possible. Additionally, although not required, local counsel are encouraged to personally appear at the scheduling conference. If one 0r more patties are represented by counsel and wish t0 appear telephonically, counsel shall contact Michelle Rooney, Courtroom Deputy Clerk, at mrooney@caed.usc0urts.gov sufficiently in advance of the conference so that a notation can be placed on the Court's calendar. Additionally, counsel are directed to indicate on the face page of their Joint Scheduling Report that the conference will be telephonic. If the parties are appearing telephonically, each party shall dial l-(888) 251-2909 and enter access code 1024453. I . s l I l. B A Joint Scheduling Report, carefully prepared and executed by all counsel, shall be electronically filed in CM/ECF, one (1) full week prior to the Scheduling Conference and shall be emailed in Word format t0 ep_gordersm}caed.uscourts.g0v. The Joint Scheduling Report shall indicate the date, time, and courtroom of the Scheduling Conference. This information is to be placed opposite the caption on the first page of the Report. At least twenty (20) days prior t0 the Mandatory Scheduling Conference, trial counsel for all parties shall conduct a conference at a mutually agreed upon time and place. This should preferably be a personal confcrcncc bctwccn all parties but a telephonic conference call involving all counscl/pro se 10 11 12 13 14 15 16 l7 l8 19 20 21 22 23 24 25 26 27 28 Case 1:20-cv-00414-NONE-EPG Document 5 Filed 03/20/20 Page 3 0f 7 parties is permissible. The Joint Scheduling Report shall contain the following items by corresponding numbered paragraphs: 1. Summary of the factual and legal contentions set forth in the pleadings of each party, including the relief sought by any party presently before the Court. 2. Summary of major disputed facts and contentions 0f lawA 3. A proposed deadline for amendments t0 pleadings. Any proposed amendment t0 the pleadings shall be referenced in the Scheduling Conference Report. If the matter cannot be resolved at the Scheduling Conference, the moving party shall file a motion to amend in accordance with the Local Rules of the Eastern District 0f California. 4. The status of all matters which are presently set before the Court, e.gl, hearings of motions, etc. 5. A complete and detailed discovery plan addressing the following issues and proposed dates: a. A date for the exchange 0f initial disclosures required by Fed. R. Civ. P. 26(a)(1) or a statement that disclosures have already been exchanged; b. A firm cutioff date for noniexpert discovery. When setting this date, the parties are advised that motions to compel must be filed and heard sufficiently in advance of the deadlines so that the Court may grant effective relief within the allotted discovery time. The Court recommends this date be scheduled approximately nine (9) months from the scheduling conference; c. A date for a mid-status discovery conference that should be scheduled approximately six (6) months after the scheduling conference, 0r two (2) months before the noni expert discovery deadline, whichever is earliest; d. A firm date for disclosure ofexpert witnesses, required by Fed. R. Civ. P. 26(a)(2), rebuttal experts, as well as cut-off for the completion 0f all expelt discovery. The parties shall allow thirty (30) days between each of the expert discovery deadlines; e. Any proposed changes in the limits 0n discovery imposed by Fed. R. CiV. P. 26(b); 30(a)(2)(A), (B); 30(d); 0r 33(8); ///// 10 11 12 13 14 15 16 l7 l8 19 20 21 22 23 24 25 26 27 28 ///// ///// Case 1:20-cv-00414-NONE-EPG Document 5 Filed 03/20/20 Page 4 0f 7 f. Whether the parties anticipate the need for a protective order relating to the discovery of information relating to a trade sccrct 0r other confidential research, development, 0r commercial information; g. Any issues 0r proposals relating t0 the timing, sequencing, phasing or scheduling 0f discovery; and h. Whether the parties anticipate the need t0 take discovery outside the United States and, if so, a description of the proposed discovery. Additional Disclosures Related to Electronic Discoveu 1. Discovefl Relating to Electronic, Digital and/or Magnetic Data. Prior t0 a Fed. R. Civ. P. 26(f) conference, counsel should carefully investigate their respective client‘s information management system so that thcy arc knowledgeable as to its operation, including how information is stored and how it can be retrieved. Counsel shall also conduct a reasonable review of their respective client's computer files Lo ascertain the contents thereof, including archival and legacy data (outdated formats 0r media), and disclose in initial discovery (self-executing routine discovery) the computeribased evidence which may be used t0 support claims or defenses. 2. The parties shall meet and confer regarding the following matters during the Fed‘ R. Civ. P‘ 26(f) conference, and address the status of Electronic Discovery and any disagreements in their Statement, including: a. Presen/ation: The parties shall attempt t0 agree on steps the parties will take t0 segregate and preserve computer-based information in order t0 avoid accusations 0f spoilation. b. Scope 0f Eimail Discovery: The parties shall attempt t0 agree as to the scope 0f eimai] discovery and attempt t0 agree upon an eimai] search protocol. The parties should seek t0 agree 0n search terms, custodians, and date ranges in advance of the Conference so that any disputes can be addressed at the Conference. 10 11 12 13 14 15 16 l7 l8 19 20 21 22 23 24 25 26 27 28 Case 1:20-cv-00414-NONE-EPG Document 5 Filed 03/20/20 Page 5 0f 7 c. Inadvertent Production of Privileged Information: The parties should confer regarding procedures for inadvertent production 0f privileged electronic material, including any obligations t0 notify the other party, and procedures for bringing any disputes promptly t0 the Court. dA Data Restoration: The parties shall confer regarding whether or not restoration of deleted infomation may be necessary, the extent t0 which restoration of deleted information is needed, and who will bear the costs 0f restoration; and the parties shall attempt to agree whether or not back-up data may be necessary, the extent t0 Which back-up data is needed, and Who will bear the cost of obtaining back-up data. 6. Datcs agreed to by all counsel for: a. The filing of dispositive motions (except motions in limine or other trial motions). The Court suggests this date be fortyifive (45) days after the expert discovery deadline. b. A preitrial conference date Which shall be approximately one hundred twenty (120) days after the dispositive motion filing deadline. c. A trial date which shall be approximately sixty (60) days after the proposed pre-trial conference date. 7. The parties are encouraged t0 discuss settlement, and must include a statement in the Joint Scheduling Report as to the possibility of settlement. The parties shall indicate when they desire a settlement conference, c.g., before further discovery, after discovery, after preitrial motions, etc. Among other things, counsel will be expected t0 discuss the possibility of settlement at the Scheduling Conference. Note that, even ifsettlement negotiations are progressing, counsel are expected t0 comply with the requirements 0fthis Order unless otherwise excused by the Court. If the entire case is settled, counsel shall promptly inform the Court. In the event of settlement, counsel's presence at the conference, as well as the Joint Scheduling Report, will not be required. 8. A statement as to whether the case is a jury or non-jury case. The parties shall briefly outline thcir rcspcctivc positions if thcrc is a disagreement as to Whether a jury trial has bccn timely 10 11 12 13 14 15 16 l7 l8 19 20 21 22 23 24 25 26 27 28 Case 1:20-cv-00414-NONE-EPG Document 5 Filed 03/20/20 Page 6 0f 7 demanded, or as t0 Whether a jury trial is available on some or all of the claims, 9. An estimate of thc number 0f trial days required. If thc parties cannot agrcc, cach party shall give his or her best estimate. 10. Whether either party requests bifurcation 0r phasing 0f trial 0r has any other suggestion for shortening 0r expediting discovery, preitrial motions or trial. 1 1. Whether this matter is related to any matter pending in this court or any other court, including bankruptcy court.MM Following the Scheduling Conference, the Court will issue a Scheduling Order with the benefit of the input of the parties. Once issued, the dates in the Scheduling Order shall be firm and no extension shall bc givcn without permission from the Court. Lack of Participation in the Joint Scheduling Report 1f any party fails to participate in the preparation 0f the Joint Scheduling Report, the nonioffending party shall detail the palty's effort t0 get the offending party t0 participate in the Joint Scheduling Report. The nonioffending party shall still file the report one (1) full week prior t0 the Mandatory Scheduling Conference and shall list the non-offending party's position on the listed issues and proposed dates for a schedule. Absent good cause, the dates proposed by the non-offending party will be presumed t0 be the dates offered by the parties. The offending party may be subject t0 sanctions, including monetary sanctions t0 compensate the non-offending party's time and effort incurred in seeking compliance With this Scheduling Order. Important Chambers' Information The patties are directed to the Court's website at www.caed.uscourts.gov under Judges; Grosjean (EPG); Standard Information (in the area entitled "Case Management Procedures") for specific information regarding Chamber's procedures. Information about law and motion, scheduling conferences, telephonic appearances, and discovery disputes is provided at this link. ///// ///// ///// 10 ll 12 13 14 15 l6 17 18 19 20 21 22 23 24 25 26 27 28 Case 1:20-cv-00414-NONE-EPG Document 5 Filed 03/20/20 Page 7 of 7 Sanctions for failure to Comply Should counsel 0r a party appearing pro se fail t0 appear at the Mandatory Scheduling Conference, 0r fail t0 comply with the directions as set forth above, an ex parte hearing may be held and contempt sanctions, including monetary sanctions, dismissal, default, or other appropriate judgment, may be imposed and/or ordered. /s/ ERICA P. GROSJEAN UNITED STATES MAGISTRATE JUDGE EXHIBIT C 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 1:20-cv-00414-NONE-EPG Document 5-1 Filed 03/20/20 Page 1 0f 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA MONIKA AGUIRRE , NO. 1:20-CV-00414-NONE-EPG Plaintiff(s), W v. AETNA RESOURCES, LLC , Defendant(s). I. LAW AND MOTION A. Calendar Civil motions may be set any Monday through Thursday, commencing at 9:30 a.m. in Coultroom 4, located 0n the seventh floor. It is not necessary t0 clear a date prior t0 scheduling a civil motion. However, so long as the "Standing Order in Light of Judicial Emergency in the Eastern District of California" is in effect, civil motions will be deemed submitted 0n the record and the briefs pursuant t0 Local Rule 230(g). This means that the date chosen for hearing will serve m to set the deadlines for opposition and reply briefs pursuant t0 Local Rulc 230(c)-(d). In the rare case in Which the court dccms a hearing is needed on a civil motion, the court Will re-set the hearing by minute order as its calendar pennits. The parties are required t0 comply with Local Rule 230 and all other applicable rules and notice requirements with respect t0 motions. ///// 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 1:20-cv-00414-NONE-EPG Document 5-1 Filed 03/20/20 Page 2 0f 4 A. Brlefing Unless prior leave 0f Court is obtained, all moving and opposition briefs or legal memoranda in civil cases shall not exceed 25 pages. Reply briefs filed by moving parties shall not exceed 10 pages. Only for good cause shown Will the court grant an application to extend these page limitations. Briefs that exceed the page limitations 0r are sought to be filed without leave of coult may not be considered. Finally, n0 supplemental briefs shall be filed without prior leave of court.‘ II. MEET AND CONFER RE! QUIREMENT Prior t0 filing a motion in a case in which the parties are represented by counsel, counsel shall engage in a pre-filing meet and confer to discuss thoroughly the substance of the contemplated motion and any potential resolution. Counsel should resolve minor procedural or other non-substantive matters during the meet and confer process so that briefing on motions that proceed to hearing are directed only to those substantive issues requiring resolution by thc court. A notice 0f motion shall contain a certification by counsel filing the motion that meet and confer efforts have been exhausted, with a very brief summary 0f meet and confer efforts. lll. COURTESY COPIES Counsel are ordered t0 deliver t0 the Clerk’s Office clearly marked courtesy copies 0f all electronically filed documents that exceed twenty-five (25) pages and conformed courtesy copies of all manually filed documents. See Local Rule 133(f). The parties need not provide courtesy copies of answers or shorter pleadings. The sender shall notify any delivery service that the signature of the recipient is not required. IV. PR! 2P! QSED QRDEBS Submission of proposed orders is not required for motions t0 dismiss or motions for summary judgment, unless the court specifically orders otherwise. However, the parties are required t0 submit proposed consent decrees and/or proposed findings 0f fact, where such documents are relevant. Where required, proposed orders shall be submitted in compliance with Local Rule 137(b) and eimailed in Microsoft Word fonnat to noneorders@caed,uscourts.gov. ///// 2 Font must be in Times New Roman and n0 less than 12. Footnotes shall be in typeface n0 more more than one size smaller than text size. 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 1:20-cv-00414-NONE-EPG Document 5-1 Filed 03/20/20 Page 3 0f 4 V. EX PARTE APPLICATIONS Ex parte applications typically are not heard, but are taken under submission for decision 0n the papers by the court unless otherwise notified‘ The filer is required to contact the courtroom deputy and the opposing party prior to the filing of the ex pane application in order to advise that such request is being made. In addition, the document(s) must indicate whether 0r not an opposition will be filed. The filer shall include an affidavit indicating a satisfactory explanation for the following: (1) the need for the issuance 0f such an order, (2) the inability 0f the filer t0 obtain a stipulation for the issuance 0f such an order from other counsel 0r parties in the action, and (3) why such request cannot be noticed 0n the court's motion calendar as provided by Local Rule 230, VI. TROS AND INJUNCTIONS Parties seeking emergency or provisional relief shall comply with Federal Rule of Civil Procedure 65 and Local Rule 230. Thc court typically Will not rulc 0n any application for such rclicf for at least twenty-four (24) hours after the party subject to the requested order has been served; such party may file opposing 0r responding papers in the interim. The parties shall lodge a courtesy copy with chambers 0f all papers relating to proposed TROS and inj unctions, conformed t0 reflect that they have been filed. VII. SEALING AND PROTECTIVE ORDERS N0 document will be sealed, nor shall a redacted document be filed, without the prior approval of the court. A11 requests to seal or redact shall be governed by Local Rules 141 (sealing) and 140 (redaction); protective orders covering the discovery phase shall not govern the filing of sealed 0r redacted documents 0n the public docket. The court will only consider requests to seal or redact filed by the proponent 0f sealing or redaction. If a party plans to make a filing that includes material an opposing party With sufficient notice in advance of filing t0 allow for the seeking of an order 0f sealing 0r redaction from the court. VIII. FINAL PRETRIAL CONFERENCES The parties are required to submit a Joint Pretrial statement. That Joint Pretrial statement must be filed seven days before the Final Pretrial Conference hearing date and be e-mailed as a Word document to: noneorders@caedluscourtsgov. ///// 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 1:20-cv-00414-NONE-EPG DocumentS-l File 03/20/20 Page4of4 IX. TEL P ES Telephonic appearances are encouraged. If any party wishes to appear by telephone, that party should consult with the other parties t0 determine if others wish to appear by telephone. Then, one party shall e-mail imunoz@caed.uscourts.gov in order to notify the court Thereafter, the parties shall arrange to conference With one another before initiating a single call to the Court at (559) 499-5680 prior t0 the noticed hearing time. X.W Counsel for plaintiff shall immediately serve this order 0n all parties, including any new parties added to the action in the future, unless this case came t0 the court by noticed removal, in Which case defendant shall serve this order on all other parties. DATED: March 20, 2020 PW7 ‘ » wJ/Lé fl BI),/ DALE A. DROZD U.S‘ DISTRICT COURT JUDGE EXHIBIT D 10 11 12 l3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 1:20-cv-00414-NONE-EPG Document 5-2 Filed 03/20/20 Page 1 of 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA MONIKA AGUIRRE , N0. 1:20-CV-004l4-NONE-EPG Plaintiff, STANDING ORDER IN LIGHT OF ONGOING JUDICIAL EMERGENCY IN THE v. EASTERN DISTRICT OF CALIFORNIA AETNA RESOURCES, LLC , Defendant. The judges 0f the United States District Court for the Eastern District of California have long labored under one 0f the heaviest caseloads in the nation even when operating with a full complement 0f six authorized District Judges.1 Each of those six District Judges has regularly carried a caseload double the nationwide average caseload for District Judges. Even while laboring under this burden, the judges of this court have annually ranked among the top 10 districts in the country in cases terminated per judgeship for over 20 years‘ See Letter regarding Caseload Crisis from the Judges ofthe Eastern District of California (June 19, 2018), http://www.caed.uscourts.gov/CAEDnew/index.cfm/news/important-letter-re-caseload-crisis/. On December 17, 2019, District Judge Morrison C. England took Senior status. On December 3 1, 2019, Senior District Judge Garland E. BurTell, Jr. assumed inactive Senior status. On February 2, 2020, District 1 For over a decade the Judicial Conference 0f the United States has recommended that this district be authorized up to six additional judgeships. However, those recommendations have gone unacted upon. This is the case despite the fact that since the last new District Judgeship was created in the Eastern District in 1978, the population 0f this district has grown from 2.5 million t0 over 8 million people and that the Northern District 0f California, With a similar population, operates with 14 authorized District Judges. 1 10 11 12 l3 14 15 16 17 l8 19 20 21 22 23 24 25 26 27 28 Case 1:20-cv-OO414-NONE-EPG Document 5-2 Filed 03/20/20 Page 2 of 5 Judge Lawrence J. O'Neill Will assume inactive Senior status? As a result of these long anticipated events, thc shortfall in judicial resources will seriously hinder thc administration ofjusticc throughout this district, but the impact Will be particularly acute in Fresno, where the undersigned will now be presiding over all criminal and civil cases previously assigned to Judge O'Neill as well as those already pending before the undersigned. As ofthe date 0f this order, this amounts to roughly 1,050 civil actions and 625 criminal defendants. Until two candidates are nominated and confirmed t0 fill this court's two vacant authorized district judgeships, this situation can only be expected to get progressively worse. The gravity of this problem is such that no action or set of actions undertaken by this court can reasonably be expected t0 alleviate it. Nonetheless, this order Will advise litigants and their counsel of the temporary procedures that Will be put in place for the duration of this judicial emergency in cases over which thc undersigned is presiding. What follows Will in some respects bc contrary t0 thc undcrsigncd's default Standing Order in Civil Actions} and may also differ from the Local Rules of the Eastern District of California. T0 the extent such a conflict exists, the undersigned hereby invokes the court‘s authority under Local Rule 102(d) t0 issue orders supplementary 0r contrary t0 the Local Rules in the interests ofjustice and case management. A. DESIGNATION OF CIVIL CASES As of February 3, 2020, all civil cases previously assigned to Judge O’Neill, and all newly filed cases that will be assigned to his future replacement, will be unassigned. Those cases will bear the designation “NONE” as the assigned district judge and Will continue t0 bear the initials 0f the assigned magistrate judge. Until new judges arrive, the undersigned will preside as the district judge in the cases so designated. Judge O’Neill’s chambers staff will remain in place for seven months following his departure from the court. Accordingly, his remaining staff will continue t0 work 0n the cases bearing the ”NONE" designation and Courtroom Deputy Irma Munoz (559749975682; imunoz@caed.uscourts.g0v) will continue t0 be the contact person with respect t0 any questions regarding those cases. Proposed orders in those cases are to be sent to 2 1n short, a Senior District Judge is one who has retired from regular active service, usually based 0n age and length of service, but continues to preside over cases of a nature and in an amount as described in 28 U.S.CA § 371(6). A Senior District Judge taking inactive status is one who has ceased t0 perform such work. 3 The undersigned’s standing order in civil cases is available at http://www.caed.uscourts.gov/caednew/ asscts/Filc/DAD%20Standing%200rdcr0520 1 9.pdf 10 11 12 l3 14 15 16 17 l8 19 20 21 22 23 24 25 26 27 28 Case 1:20-cv-OO414-NONE-EPG Document 5-2 Filed 03/20/20 Page 3 of 5 noneorders@caed.uscourts.gov. Finally, any hearings or trials before the undersigned in cases bearing the "NONE" designation will continue t0 bc hcld in Judge O'Ncill's former courtroom, Courtroom #4 0n thc 7th Floor at 2500 Tulare Street in Fresno, California. B. CIVIL LAW AND MOTION It has been the strong preference 0f the undersigned over the past twentyithree years to hear oral argument on all civil motions. In the undersigned‘s experience, doing so allows the coun t0 more fillly grasp the parties' positions and permits the parties t0 address the court's concerns without the need for supplemental briefing. However, given the judicial emergency now faced by this court, such hearings on civil law and motion matters will n0 longer be feasible. Accordingly, all motions filed before the undersigned in civil cases will be deemed submitted upon the record and briefs pursuant t0 Local Rule 230(g). The hearing date chosen by thc moving party Will nonetheless govern thc opposition and reply filing deadlines pursuant to Local Rule 230(0). In cases bearing the "DAD" designation, the noticed hearing dates will remain the first and third Tuesdays 0f each month. ln cases designated as "NONE," the noticed hearing dates may be any Tuesday through Friday. In the unlikely event that the CouIt determines a hearing would be helpful and feasible, the court will reischedule a hearing date in accordance with its availability. In addition to the motions already assigned to magistrate judges by operation of Local Rule 302(0), the undersigned now orders that the following categories of motions in cases bearing "DAD" and "NONE" designations shall be noticed for hearing before the assigned magistrate judge: 1. Motions seeking the appointment 0f a guardian ad litem; 2. Motions for class certification and decertification pursuant to Federal Rule of Civil Procedure 23; 3. Motions seeking preliminary 0r final approval 0f collective 0r class action settlements; and 4. Motions t0 approve minors‘ compromises.4 The undersigned will surely refer other motions t0 the assigned magistrate judge for the issuance 0f findings and recommendations by separate orders in particular cases. ///// ///// 4 Magistrate judges may resolve motions seeking the appointment of a guardian ad [item by way 0f order, while all other motions may be resolved by issuance offindings and recommendations. See 28 U.S.C. § 636(b)(1)(A)~ 10 11 12 l3 14 15 16 17 l8 19 20 21 22 23 24 25 26 27 28 Case 1:20-cv-00414-NONE-EPG Document 5-2 Filed 03/20/20 Page 4 of 5 C. CIVIL TRIALS In thc two civil cascloads ovcr Which thc undersigned Will bc presiding for thc duration 0f this judicial emergency, there are cuITently trials scheduled through the end of 2021. Given the enormous criminal caseload that will be pending before the undersigned and based upon the reasonable assumption that at least some ofthose criminal cases will proceed to trial, it is unlikely that those civil cases will be able t0 proceed t0 trial 0n the currently scheduled date.5 Thus, the setting 0f new trial dates in civil cases would be purely illusory and merely add t0 the court’s administrative burden of vacating and re-setting dates for trials that will not take place in any event. Accordingly, for the duration of this judicial emergency and absent further order 0f this court in light of statutory requirements 0r in response to demonstrated exigent circumstances, no new trial dates will be scheduled in civil cases assigned to "DAD" and "NONE" over which the undersigned is presidingfi As such, scheduling orders issued in civil cascs ovcr Which the undersigned is presiding will not include a trial date. Rather, the final pretrial conference will be the last date t0 be scheduled.7 Panicularly in light 0f this judicial emergency, patties in all civil cases before the undersigned are reminded Oftheir option t0 consent to magistrate judge jurisdiction pursuant t0 28 U.S.C. § 636(c). The magistrate judges of this court are highly skilled, experienced trial judges. Moreover, because magistrate judges cannot preside over felony criminal trials, trial dates in civil cases can be set before the assigned magistrate judge With a strong likelihood that the trial Will commence on the date scheduled. ///// 5 Even in those instances Where a trial date has been set, such trial dates will be subject to vacatur with little to no advance notice due to the anticipated press of proceedings related to criminal trials before this court, which have statutory priority over civil trials. In any civil action that is able t0 be tried before the undersigned during the duration of this judicial emergency, the trial will be conducted beginning at 8:30 am. Tuesday through Thursday. The court will have calendars for criminal cases bearing a "DAD” assignment 0n Monday at 10:00 am. and for those criminal cases bearing the "NONE" designation on Friday at 8:30 am. 6 Any party that bclicvcs exigent 0r extraordinary circumstances justify an exception to this ordcr in their case may file a motion seeking the setting of a trial date‘ Such motions shall not exceed five pages in length and must establish truly extraordinary circumstances. Even where such a showing is made, the parties are forewarned that the undersigned may simply be unable to accommodate them in light of the court's criminal caseload. 7 Final Pretrial Conference dates may be later vacated and rescheduled dcpending 0n the court’s ability t0 rule on dispositive motions that are filed. Moreover, in those “NONE” and "DAD“ designated civil cases with trial dates, the parties are hereby ordered not t0 file any pretrial motions in limine prior t0 the issuance of thc Final Pretrial Order and to do so only in compliance with thc deadlines sct in that order. 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 1:20-cv-00414-NONE-EPG Document 5-2 Filed 03/20/20 Page 5 of 5 CONCLUSION Thcsc arc uncharted waters for this court. Thc emergency procedures announced abovc arc being implemented reluctantly. They are not, in the undersigned‘s View, conducive to the fair administration 0f justice. However, the court has been placed in an untenable position in which it simply has n0 choice. There will likely be unforeseen consequences due to the implementation 0fthese emergency procedures and the court will therefore amend this order as necessary. DATED: March 20, 2020 \J7w 7, , DALE A. DROZD U.S. DISTRICT COURT JUDGE \ EXHIBIT E Case 1:20-cv-OO4l4-NONE-EPG Document 5-3 Filed 03/20/20 Page 1 of 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 501 I STREET, SUITE 157220 SACRAMENTO, CA 95814 Chambers of _ KIMBERLY J. MUELLER (916) 930 4260 Chiernited States District Judge Magistrate Judge Consent in Civil Cases: Know Your Rights! Delay, congestion, uncertainty, and expense are concerns often expressed by civil litigants. These concerns have reached a crisis level in the Eastern District 0f California. Despite the population 0f our District nearly doubling since 1979 and a corresponding tremendous increase in case filings, for the past 40 years our court has only 6 authorized District Judgeship positions. The U.S. Judicial Conference, the policyimaking arm 0f the federal courts, has recommended for decades that Congress authorize between 5 and ll new judgeships for this court. While the court is doing what it can t0 ensure Congress is fully informed regarding our current proposed allocation 0f 5 new judgeships, wc cannot at this point say thcrc is a realistic hope of ncw District Judgeships in the foreseeable future To make matters worse, given recent events, only 4 of our 6 authorized judgeships are filled by active District Judges as of February 2020. The Sacramento Division has experienced a net loss 0f one District Judge's services, With Senior District Judge Garland E. Burrell‘s taking inactive senior status and District Judge Morrison C. England‘s taking active senior status and reducing his combined civil and criminal caseload by half. Our Fresno Division is even harder hit, with former Chief District Judge Lawrence J. O'Neill's taking inactive senior status at the end ofJanuary 2020, leaving the Fresno District Court with only onc active Article III judge to handlc all criminal cases and a heavy share of civil cases, and one senior Article III judge Who assists the court by taking a half civil caseload. The Eastern District has been significantly congested for many years, consistently carrying average weighted caseloads equal or close to twice the national average for federal trial courts. Given our cunent more dire circumstances, civil litigants are having to vie for less and less District Judge time and attention. Civil litigants therefore may Wish t0 consider consenting to Magistrate Judge jurisdiction, given that the court has a full complement of experienced Magistrate Judges available t0 preside to the full extent allowed by law‘ The Magistrate Judge consent process can help bring about the "just, speedy, and inexpensive determination" of federal cases. Fed. R. Civ. P. 1. Although their title has changed periodically, Magistrate Judges, as they currently are known, have had a role in the federal courts since passage 0f the Judiciary Act 0f 1789. Over time, Congress has expanded and enhanced the position in the interests ofmaximizing judicial efficiency. Specifically, Magistrate Judges are authorized "to conduct any 0r all proceedings in a jury 0r nonijury civil matter and order the entry ofjudgment in the case" with thc consent of thc parties. 28 U.S.C. § 636(0). Consent can maximize access to thc courts and ease court congestion through effective use ofjudicial resources. It can provide numerous benefits to litigants including the prospect of an early and firm trial date, when District Judges may not be available to try a civil case given the need to prioritize felony criminal cases. In civil cases, the assigned Magistrate Judge already is responsible for resolving discovery disputes, deciding other non-dispositive motions and in some instances handling pre-trial proceedings; as a result that judge may be intimately familiar with the case history. Consenting in any civil case allows the Magistrate Judge t0 decide dispositive motions and preside over trial, and so can avoid the Case 1:20-cv-004l4-NONE-EPG Document 5-3 Filed 03/20/20 Page 2 of 4 uncertainty parties may face while waiting for the District Judge to identify time on his or her calendar for trial. Just as with a judgment issued by a District Judge, a judgment issued by a Magistrate Judge to Whom the parties in a civil case have consented is appealable directly to the Ninth Circuit Court 0f Appeals. As their professional biographies posted 0n our court's website show, our Magistrate Judges are well-qualified to preside over the cases assigned them. They are experienced, high-caliber judges with diverse experiences in civil and criminal litigation who have been selected on the merits, taking into account their education, experience, knowledge of the court system, personal attributes and other criteria. Our Magistrate Judges are well-qualified to preside over the civil cases brought in our court. To consent to magistrate judge jurisdiction, a party simply signs and files a consent form. The fonn is available 0n the court‘s website, at this link: htm://www.caed.usc0urts. gov/caednew/index.cfm/forms/civil/. Parties may consent or withhold consent without any adverse consequences. Once all parties to a case consent, then the assigned District Judge is notified and considers whether t0 approve the consent. Once the District Judge accepts, then the Magistrate Judge determines Whether t0 accept consent jurisdiction, taking the opponunity t0 consider any conflicts or bases for recusal. All litigants before the federal courts deserve justice delivered in a fair, prompt, and efficient manner. Our Magistrate Judges play a critical rolc in providing essential access t0 justice, particularly in our overburdened court Consenting t0 Magistrate Judge jurisdiction in civil cases may represent one 0f the best ways to secure "just, speedy, and inexpensive determination" of your case, which is why we want to be sure you are fully aware of your right and ability to consent, and the means 0f doing so. m.fix/IMQL/ CHIEFFQEFEI') STATES DISTRICT JLUJGE Case 1:20-cv-004l4-NONE-EPG Document 5-3 Filed 03/20/20 Page 3 0f 4 NOTICE OF AVAILABILITY OF A MAGISTRATE JUDGE TO EXERCISE JURISDICTION AND APPEAL INSTRUCTIONS You are hereby notified in accordance with 28 U.S.C §636(c), F.R.CiV.P.73 and Local Rule 305, the United States Magistrate Judges sitting in Sacramento and Fresno are available t0 exercise the coufi's case-dispositive jurisdiction and t0 conduct any or all case-dispositive proceedings in this action, including motions t0 dismiss, motions for summary judgment, a jury 0r non jury trial, and entry of a final judgment. Exercise of this jurisdiction by a Magistrate Judge is however, pennitted only if all parties voluntarily consent. You may, without adverse substantive consequences, withhold your consent, but this will prevent the court's case-dispositive jurisdiction from being exercised by a Magistrate Judge. Any appeal from a judgment entered by a Magistrate Judge is taken directly to the United States Court 0f Appeals for the Ninth Circuit 01', where appropriate, for the Federal Circuit in the same manner as an appeal from any other judgment of a District Court. Whether or not the patties consent pursuant to 28 U.S.C. § 636(0), the assigned Magistrate Judge will hear all motions except those case-dispositive motions set forth in 28 U.S.C. § 636(b)(1)(A). A copy of the Form for "Consent to / Decline 0f Jurisdiction 0f United States Magistrate Judge" is attached hereto for pro per use and attorney information. This form is available in fillable .pdf format 0n the court‘s web site at www.caedtuscourts‘gov for all attorney ECF filers. This form may be filed through CM/ECF or by pro se litigants at the appropriate Clerk‘s Office location. Office 0f the Clerk Office of the Clerk 501 I Street, Room 4-200 2500 Tularc Strcct, Suite 1501 Sacramento, CA 95814 Fresno, CA 93721 Case 1:20-cv-004l4-NONE-EPG Document 5-3 Filed 03/20/20 Page 4 0f 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA MONIKA AGUIRRE , CASE NO: 1:20-CV-00414-NONE-EPG Plaintiff(s) / Petitioner(s), vs. CONSENT / DECLINE OF U.S. MAGISTRATE JUDGE JURISDICTION AETNA RESOURCES, LLC , Defendant(s) / Respondent(s)4 IMPORTANT IF YOU CHOOSE TO CONSENT 0R DECLINE TO CONSENT TO JURISDICTION OF A UNITED STATES MAGISTRATE JUDGE, CHECK AND SIGN THE APPROPRIATE SECTION 0F THIS FORM AND RETURN IT TO THE CLERK'S OFFICE. D CONSENT TO JURISDICTION OF UNITED STATES MAGISTRATE JUDGE In accordance With the provisions of Title 28, U.S.C Sec. 636(c)(1), the undersigned hereby voluntarily consents t0 have a United States Magistrate Judge conduct all funher proceedings in this case, including trial and entry 0f final judgment, with direct review by the Ninth Circuit Court of Appeals, in the event an appeal is filed. Date: Signature: Print Name: ( ) PlaintitT/ Petitioner ( ) Defendant / Respondent Counsel for * D DECLINE OF JURISDICTION OF UNITED STATES MAGISTRATE JUDGE Pursuant to Title 28, U.S.C. Sec 636(c)(2), the undersigned acknowledges the availability of a United Statcs Magistrate Judge but hcrcby declines t0 consent. Date: Signature: Print Name: ( )Plaintiff/ Petitioner ( )Defendant/ Respondent Counsel for * *Ifrepresenting more than one party, counsel must indicate the name 0feach party responding. EXHIBIT F Case 1:20-cv-00414-NONE-EPG Document 5-4 Filed 03/20/20 Page 1 of 2 NOTICE OF AVAILABILITY VOLUNTARY DISPUTE RESOLUTION Pursuant t0 the findings and directives 0f Congress in 28 UAS.C. §§ 651 et seq, and in recognition of the economic burdens and delay in the resolution of disputes that can be imposed by full formal litigation, Local Rule 271 governs the referral ofcertain actions t0 the Voluntary Dispute Resolution Program ("VDRP") at thc election 0f parties. Plaintiff 0r removing party is t0 provide all other parties with copies of the notice at the time service is effected 0r, for parties already served, no more than fourteen (14) days after receiving notice from the Court. After filing of the original complaint or removal action, any party who causes a new pany to be joined in the action shall promptly serve a copy of the notice on the new party. lt 1's the Court's intention that the VDRP shall allow the participants to take advantage 0f a wide variety of alternative dispute resolution methods. These methods may include, but are not limited to, mediation, negotiation, early neutral evaluation and settlement facilitation. The specific method 0r methods employed will bc dctcrmjncd by the Neutral and the parties. PLEASE TAKE NOTICE that pursuant t0 Local Rule 271, this Local Rule applies to all civil actions pending before any District Judge 0r Magistrate Judge in the District except that actions in the following categories are exempt from presumptive inclusion: (i) prisoner petitions and actions, including habeas corpus petitions, (ii) actions in which one Ofthe parties is appearing pLO x, (iii) voting rights actions, (iv) social security actions, (V) deportation actions, (Vi) Frccdom of Information Act actions, and (Vii) actions involving the constitutionality 0f federal, state or local statutes 0r ordinances. The fact that a case falls in a category that is exempt from the presumptive applicability of this Local Rule neither (1) precludes the parties to such a case from agreeing to participate in an Alternative Dispute Resolution ("ADR") process, nor (2) deprives the Court 0f authority t0 compel participation in an appropriate ADR proceeding. Parties may elect Voluntary Dispute Resolution with the Court indicating that all parties t0 the action agree t0 submit the action t0 VDRP pursuant t0 Local Rule 271. Actions may not be assigned t0 VDRP over thc objection of a party. (Copy of sample stipulation attached hereto.) At the time of filing, a copy of the stipulation shall be provided to the VDRP Administrator designated below: Sacramento Cases Fresno Cases Voluntary Dispute Resolution Voluntary Dispute Resolution Program Administrator Program Administrator United States District Court United States District Court 501 "I" Street, Suite 4-200 2500 Tulare Street, Suite 1501 Sacramento, CA 95814 Fresno, CA 93721 (916) 930-4278 (559) 499-5600 10 11 12 13 14 15 16 17 18 l9 20 2] 22 23 24 25 26 Case 1:20-cv-00414-NONE-EPG Document 5-4 Filed 03/20/20 Page 2 0f 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT 0F CALIFORNIA MONIKA AGUIRRE , NO: 1:20-CV-00414-NONE-EPG Plaintiff(s) STIPULATION TO ELECT REFERRAL V. OF ACTION TO VOLUNTARY DISPUTE RESOLUTION PROGMM (VDRP) AETNA RESOURCES, LLC , PURSUANT TO LOCAL RULE 271 Defendant(s) Pursuant to Local Rule 271, the parties hereby agree to submit the above-entitled action to the Voluntary Dispute Resolution Program. DATED: MARCH 20, 2020 Name: Attorney for Plaintiffls) Name: Attorney for Defendant(s) PAYNE & FEARS LLP ATTORN EYS AT LAW JAMBOREE CENTER, 4 PARK PLAZA, SUITE 1100 IRVINE, CALIFORNIA 92614 (949) 851-1100 A QONUI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Monika Aguirre v. Aetna Resources, LLC Fresno Countv Superior Court Case N0. 19CECG03964 STATE OF CALIFORNIA, COUNTY OF ORANGE At the time of service, I was over 18 years of age and not a party t0 this action. I am employed in the County 0f Orange, State 0f California. My business address is Jamboree Center, 4 Park Plaza, Suite 1100, Irvine, CA 92614. On March 24, 2020 I served true copies of the following document(s) described as NOTICE TO PLAINTIFF OF REMOVAL OF CIVIL ACTION TO UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA on the interested parties in this action as follows: Larry H. Shapazian, Esq. Attorneys for Plaintiff TOMASSIAN, PIMENTEL & SHAPAZIAN MONIKA AGUIRRE A Professional Law Partnership 3419 W. Shaw Avenue Fresno, CA 93711 Tel: (559) 277-7300 Fax: (559) 277-7350 BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the document(s) to be sent from e-mail address tshaw@paynefears.com t0 the person at the e-mail address listed above. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. I declare under penalty of perjury under the laws 0f the State of California that the foregoing is true and correct. Executed 0n March 24, 2020, at Irvine, California. /s/ Terri M. Shaw Terri M. Shaw PROOF OF SERVICE
