Declaration In Support

Cal. Super. - 6th Dist.July 2, 2019

l\) \DOOQQQJ‘IAU) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WILLIAM HAYS WEISSMAN, BarNo. 178976 Electronically Filed wweissman@littler.com by Superior Court of CA, CHAD D. GREESON, Bar NO. 251928 County of Santa Clara, cgreeson@littler.com 9/1 2/1 9 IfggfilfvgsENDELSON’ P-Q Reviewed By: L Del Mundo 1255 Treat Boulevard case #1 9CV350776 Suite 600 Envelope: 340631 6 Walnut Creek, CA 94597 Telephone: 925.932.2468 Fax No.1 925.946.9809 Attorneys for Defendants SOHAIL ASLAM, IJAZ ANWAR, AJIT MEDHEKAR, PAYACTIV, INC., AND SAFWAN SHAH SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA PEDRO IBARRA, Case N0. 19CV350776 Plaintiff, ASSIGNED FOR ALL PURPOSES TO JUDGE PIERCE, DEPT. 2 v. DECLARATION OF CHAD D. GREESON IN PAYACTIV, INC, a Delaware SUPPORT OF DEFENDANTS’ MOTION TO Corporation, SAFWAN SHAH; SOHAIL STRIKE ASLAM; IJAZ ANWAR; AJIT MEDHEKAR; and DOES 1 - 25, inclusive, DATE: January 7, 2020 TIME: 9:00 am. Defendants. DEPT. 2 Complaint Filed: July 2, 2019 JTTLER MENDELSON. ?.C. heal out: uile 600 Walnut Cieek. CA 9‘59? 925.932.2468 I, Chad D. Greeson, declare as follows: 1. I am an attorney licensed to practice in the courts of the State of California. I am an attorney with the law firm of Littler Mendelson, a Professional Corporation, and counsel of record for Defendants in the above-captioned matter, SOHAIL ASLAM, IJAZ ANWAR, AJIT MEDHEKAR, PAYACTIV, INC., AND SAFWAN SHAH (“Defendants”). The information set forth below is based on my own personal knowledge, and if called to testify as a witness to its contents, I could and would be able to do so competently. / / / / / / DECLARATION OF CHAD D. GREESON ISO DEFENDANTS’ MOTION TO STRIKE 1 2. On August 13, 2019, Defendants’ counsel sent Plaintiff s counsel a letter by fax. In this 2 letter, Defendants’ counsel identified the specific causes ofaction in the Complaint believed to be subject 3 to a demurrer or motion to strike along. Defendants’ counsel also identified the basis of the deficiencies 4 in the Complaint with legal support. A true and correct copy of this correspondence is attached to this 5 Declaration as Exhibit A. 6 3. In this letter, Defendants’ counsel advised Plaintiff’s counsel that the seventh cause of 7 action for failure to prevent discrimination was fatally defective under the Fair Employment and Housing 8 Act (“FEHA”) because Plaintiff failed to include the claim in his administrative complaint filed with the 9 Department of Fair Employment and Housing (“DFEH”). 10 4. Defendants’ counsel met and conferred in a voice-to-voice teleconference with Shawn 11 Tillis, Plaintiffs counsel, on September 4, 2019. Defendants’ counsel discussed the deficiencies in the 12 Complaint with Mr. Tillis, who requested one week to consider whether to amend the Complaint. 13 5. Defendants’ counsel fixrther met and conferred with Mr. Tills for Plaintiff 0n September 14 10, 2019, to ascertain whether Plaintiff’s counsel would agree to amend. Defendants’ counsel raised a 15 I number 0f additional concerns regarding deficiencies in the Complaint along with legal support. For I 16 example, Defendants’ counsel advised Plaintiffs’ counsel that Plaintiff failed to exhaust his 17 administrative remedies and file a complaint with the DFEH in support ofthe claim for racial harassment 18 under the Fair Employment and Housing Act FEHA within one year ofthe alleged adverse employment 19 action. Plaintiff was terminated 0n December 4, 2017, and he failed t0 file a DFEH complaint until 20 February 12, 2019. Defendants’ counsel notified Plaintiffs’ counsel that the claim was barred for failure 21 to comply with the administrative exhaustion requirements and by the applicable statutes of limitation. 22 6. Similarly, during the call on September 10, 2019, Defendants’ counsel also advised Mr. 23 Tillis that the claims for failure t0 reasonably accommodate and failure to engage in a good faith 24 interactive process were all barred for similar reasons. Defendants’ counsel explained to Mr. Tillis that 25 none of these standalone FEHA claims were included in the DFEH complaint filed on February 12, 26 201 9. Thus, the claims are now time-barred by the statutes of limitation. Nevertheless, Plaintiff’s 27 counsel refused to amend. 28 v7. After the call on September 10, 201 9, Defendants’ counsel emailed a letter to Plaintiffs” “me“ XSREEPW' P'c' 2. s 1255 hem Boulevaxd Smile 600 DECLARATION 0F CHAD D. GREESON Iso DEFENDANTS’ MOTION To STRIKE KOOOQQM-hMNr-t NNNNNNNNwr-tr-dwv-‘Hh-dr-dt-nw QQMAWNHOKOOOQQMLWNHO 28 LITTLER MENDELSON. P.C. Tleal T Imeo 1255 hey! Boulevard ulte 600 Walnut Clack. CA 94597 9253312458 counsel identifying these deficiencies discussed during the meet and confer along with relevant support. Defendants’ counsel advised Plaintiffs’ counsel that the race harassment claim under FEHA against the individual Defendants as well as the failure to accommodate and failure to engage in the interactive process claims against all Defendants had no legal merit, were frivolous, and therefore subject to sanctions. Defendants’ counsel requested that Plaintiff‘s counsel reconsider his refusal to amend or dismiss these defective claims. A true and correct copy ofthis correspondence is attached as Exhibit B. 8. As ofnoon on September 1 1, 20 1 9, Mr. Tillis refused to amend the Complaint, prompting Defendants to file a demurrer and motion to strike. 9. Previously, Plaintiff Pedro Ibarra and PayActiv entered £nto a tolling agreement (“Agreement”), effective from October 25, 2018 until the date Plaintiff submitted his DFEH complaint 0n February 12, 2019-i.e., a period 0f 1 15 days. A true and correct copy of this Agreement is attached to this declaration as Exhibit C. As evident from the face of the Agreement, the only parties t0 the Agreement are Plaintiff and PayActiv. The individual Defendants (Safwan Shah, Sohail Aslam, Ijaz Anwar, and Ajit Medhekar) are neither parties nor signatories to the Agreement. I declare under penalty of perjury under the laws of the State of California that the foregoing- is true and correct. Executed on this 12th day of September, 2019 in Walnut Creek, California. Dated: September 12, 20 1 9 @hJPW WILLIAM HAYS WEISSMAN CHAD D. GREESON LITTLER MENDELSON, P.C. Attorneys for Defendants SOHAIL ASLAM, IJAZ ANWAR, AJIT MEDHEKAR, PAYACTIV, INC, AND SAFWAN SHAH 4836-0592-1700.1 08 1 778. 1004 3. DECLARATION OF CHAD D. GREESON ISO DEFENDANTS’ MOTION TO STRIKE Exhibit A xhibit G a i. . Latter FACSIMILE COVER SHEET August 13, 2019 To: John D. Winer; Shawn D. Tillis Fax: , 510.433.1001 Winer, Burritt & Tillis, LLP Fax #(s) verified before sending (initial): From: William Hays Weissman . Fax: 925.891.2551 Length, including this cover letter: 69 Pages If you do not receive alI pages, please call Sender's Phone Number. ' Message: Phone: Phone: 925.927.4545 CONFIDENTIALITY - The infon'nation contained in this fax message is intended only for the persona! and confidentiai use of the designated recipient(s) named above. This message is a communication from attorneys or their agents relating to pending legaf matters and, as such, is intended to be privileged and/or confidential. If the reader of this message is not the intended recipient or an agent responsibie for delivering it to the intended recipient, you are hereby notified that you have received this document in error, and that any review, dissemination, distribution or copying of this message is strictly prohibited.” If you have received this communication in error, please notify us immediately by teiephone and return the original message to us by mail. Thank you. Transmittal Completed: am l pm Client Code: Littler Mendetson. P.C. User Number: 2179 Treat Towers, 1255 Treat Boulevard. Suite 600. Walnut Creek, CA 94597 Tel: 925.932.2468 Fax: 925.946.9809 www.littler.com Littler Employment & labor Lavi Solutions Worldwide'" August 13, 2019 VIA FACSIMILE 510.433.1001 John D. Winer Shawn D. Tillis Winer, Burritt & Tillis, LLP 1999 Harrison Street, Suite 600 Oakland, CA 94612 Re: Ibarra v. PayActiv, et al. Littler Mendelson, PC Treat Towers 1255 Treat Boulevard Suite 600 Walnut Creek, CA 94597 William Hays Weissman 925.927.4545 direct 925.932.2468 main 925.891.2551 fax wweissman@littler.com Meet and Confer Re Sufficiency of Complaint and Settlement Inquiry Dear Mr. Winer and Mr. Tillis: As you know, this firm represents PayActiv and the individual defendants in the above-referenced matter. Enclosed please find notices of acknowledgement and receipt for service of the complaint. In addition, this letter is an attempt to meet and confer before filing a responsive pleading. We think it would be beneficial to lay out our views in writing, but would welcome an opportunity to discuss these issues as well. Please let us know about scheduling a call. Because you are Mr. lbarra's third counsel, not including periods when he represented himself, we think it might be useful to provide some background ·information. In April 2014 Mr. Ibarra met Safwan Shah, PayActiv's founder and CEO, at UC Santa Cruz where Mr. Shah was lecturing at the time. Mr. Ibarra represented that he possessed strong contacts and relationships in the agriculture industry and could play an instrumental role in promoting PayActiv within the California agriculture sector. As a result, PayActiv offered Mr. Ibarra a position, effective May 12, 2014, as a Business Support Manager with a $48,000 salary and 75,000 stock options with a four-year vesting schedule. Mr. Ibarra was the seventh employee of PayActiv, including the founders. In December 2014 PayActiv purchased a new Toyota Tacoma truck for Mr. lbarra's use. PayActiv paid for the fuel, maintenance, and insurance for the truck. PayActiv also increased his annual salary to $60,000 effective December 1, 2014, even though no other employee received a pay raise at that time. In an attempt to give Mr. Ibarra additional growth opportunities and a reduction in his commute, on July 1, 2015, PayActiv opened a satellite office in Salinas, California, to focus on the agriculture industry. He was given responsibility for that office, including developing a call center and spearheading business development of the PayActiv's PEPTO product for this sector. littler.com John D. Winer Shawn D. Tillis August 13, 2019 Page 2 In December 2015 Mr. Ibarra threatened to quit. He met with ljaz Anwar at PayActiv's San Jose office and argued that he was underpaid compared to other employees. He turned in his keys to the company truck in anticipation of resigning. Mr. Anwar talked him into staying. In addition, PayActiv gave Mr. Ibarra a new job title of Director of Operations, and increased his annual salary to $90,000, effective January 1, 2016. All this occurred notwithstanding the fact that Mr. lbarra's efforts to develop the PEPTO product in the agricultural market were unsuccessful. By the middle of 2016 PayActiv made a business decision to wind down the Salinas operations due to the continued loss of money. Mr. Ibarra was made aware of this decision in 2016. PayActiv closed the Salinas office by July 2017 and discontinued PEPTO. At this same time PayActiv established a more professional call center in San Jose. After the Salinas office closed, Mr. Ibarra began to work in San Jose, but it quickly became apparent that he lacked the appropriate skill sets needed. PayActiv searched for an appropriate role for him within the company. Despite efforts to find a position that fit for Ibarra, he was distracted and lacked commitment. For example, PayActiv discovered that he was working on non-PayActiv commercial activities during working hours with the Company. Nonetheless, PayActiv continued to pay Ibarra his salary and attempted to find a place for him. In October 2017 Mr. Ibarra sought Mr. Shah's advice about returning to school. Mr. Shah told him that he should finish school because his skills were not sufficient to grow with the Company. Mr. Ibarra then demanded that PayActiv continue to pay his full salary, health insurance, and for the company car for one to one and a half years so that he could attend school full-time without working. PayActiv declined. Mr. Ibarra then decided to stay at PayActiv rather than leave to attend school. On November 1, 2017, Safwan Shah met in person with Ibarra and communicated that his position had been eliminated. He advised Ibarra to work with ljaz Anwar and Sohail Aslam on whether any other position existed for him. Mr. Ibarra first called Mr. Anwar, who could not determine a role for Ibarra on the spot. Mr. Ibarra then called Mr. Aslam, who told Ibarra there was no available position in the technology department. Nonetheless, Ibarra was not told by anyone that he was actually fired on November 1, 2017, even though his position had been eliminated. Instead of working with Mr. Anwar to find a suitable role or coming to work, on November 2, 2017, Mr. Ibarra texted a photo of a doctor's note to Mr. Anwar that stated, "This patient is placed off work from 11/2/2017 through 12/1/2017." Attached as Exhibit 1 is the note for your reference. On November 3, 2017, Ibarra personally called a meeting of seven PayActiv employees who either worked directly or indirectly for him. The meeting occurred at 7:00 p.m. at Chili's in Morgan Hill. During the meeting Mr. Ibarra told the employees that their jobs were in jeopardy, encouraged them to quit and look for other jobs, and to collectively call in sick to impact the company, and to.post negative comments about the company on social media because Mr. Shah would not like it. This meeting was reported to the company by several employees. Also beginning on or about November 3, 2017, anonymous social media posts began appearing about illegal conduct at PayActiv. When asked about the posts, Mr. Ibarra denied any involvement with them. John D. Winer Shawn D. Tillis August 13, 2019 Page 3 On November 12, 2017, Mr. Ibarra emailed Mr. Shah, Mr. Anwar and Mr. Aslam. His email claimed that "[tJhroughout the years we have had many conversations regarding the legality of certain areas of our business model." He then asserts [l[c]urrently, I see them to be potentially illegal and highly misleading to our customers, users and public" and proceeds to identify ten items. Many of the items listed actually had nothing to do with legal issues, but rather concerned various business practices. On November 17, 2017, PayActiv, through this firm, informed Mr. Ibarra that his employment was terminated effective December 4, 2017, after the end of his leave of absence, but PayActiv offered to discuss an amicable separation. Later that day Mr. Ibarra wrote to Kabir Masa, David Carlick, Ajit Medhekar, Don Peppers, Amer Akhtar, Baba Shiv, Sanjiv Das and Jeanna Abbott, all of whom are either PayActiv board members or advisors, to further assert his alleged whistle blower claims. In response, on November 20, 2017, Board member Medhekar responded by email to Mr. Ibarra that the Board took his claims seriously and directed him to Littler for a further response. (See complaint paragraph 25.) In response, on November 22, 2017, Mr. Ibarra emailed Littler indicating he was a whistleblower. Attached to his email was PowerPoint showing his disclosure and, together with his email, implying that if he were reinstated and put on paid administrative leave, he would not report the alleged wrongdoing to various government agencies. These emails and PowerPoint are attached as Exhibit 2 for your reference. Sometime in December 2017, Mr. Ibarra filed a small claims action asserting that he was not paid all his wages owed, seeking $9,990. That matter was dismissed in February 2018 due to his failure to appear in court. Also in December 2017, Mr. Ibarra retained Structure Law Group to represent him. On January 29, 2018, Mr. lbarra's first counsel, Clint Webb of Structure Law Group, sent a demand letter seeking $2 million, two percent equity in the company, reinstatement of his position, $180,000 salary (which would have been a substantial increase) and benefits for five years guaranteed, and a seat on PayActiv's board. This letter is attached as Exhibit 3 for your convenience. This demand was declined. In March 2018 Mr. Ibarra filed a charge with the California Labor Commissioner, asserting he was owed about $14,000 in unpaid wages. However, after appearing for that matter, the Labor Commissioner determined that there was no merit to his claims of unpaid wages and agreed with PayActiv that he was actually overpaid. Mr. Ibarra represented himself before the Labor Commissioner, as Structure Law Group was no longer representing him by this point. Around June 2018, Mr. Ibarra retained his second counsel on his employment claims, James Richardson of Sanford Heisler Sharp, LLP. Mr. Richardson sent an unspecified settlement demand on June 11, 2018. This demand made passing reference to Mr. Ibarra being on leave [lper his physician's orders in order to attend to ailments caused by the stress of his work environment." Those ailments were not specified, nor were they specified in his DFEH claim filed on February 12, 2019, which merely claims he was on leave for "depressive state and anxiety disorder.fl The complaint states he suffered [lstress." (See paragraph 24). To date, Ibarra has failed to provide any medical documentation or clear explanation from a medical professional to substantiate his self-directed leave. John D. Winer Shawn D. Tillis August 13, 2019 Page 4 In July 2018, Mr. Richardson sent a demand for $1,045,000. The parties agreed to mediate Mr. lbarra’s employment claims. One February 1, 2019, mediation occurred with Daniel Quinn in Littler's San Jose office. Mediation failed, and immediately afterwards Sanford Heisler Sharp, LLP withdrew as Mr. Ibarra’s second counsel. While we do not have any information as to why Sanford Heisier Sharp, LLP withdrew representation immediately after mediation, we believe it is because Mr. lbarra lied to his attorneys about his criminal record. Mr. {barra’s criminal record is attached as Exhibit 4 for your convenience. On February 12, 2019, Mr. Ibarra apparentiy retained the Velez Law Firm in Rosevifle, California, to file a DFEH complaint for him. Thereafter Mr. Velez does not appear to have further represented Mr. Ibarra. We bring these facts to your attention in case you do not have the full background on this case given you are now Mr. Ebarra’s fourth set of attorneys and come to this matter after almost two years. With this context we turn to our concerns regarding the subject compiaint. No actionable claim is pled against Aiit Medhekar The complaint alleges three causes of action against Ajit Medhekar: the fifth cause of action for race harassment; the tenth cause of action for intentional infliction of emotional distress; and the eleventh cause of action for declaratory or injunctive relief. However, the complaint only references Ajit Medhekar in paragraph 11 identifying him as a California resident and in paragraph 25, quoting an email from him to plaintiff indicating receipt of hisNovember 17, 2017, email and responding that PayActiv’s counsel would address his concerns. The FEHA prohibits harassment of an employee based on ”race, religious creed, coior, national origin, ancestry, physica! disability, menta! disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status." Cal. Gov. Code, § 129400). To prevail on a claim for racial harassment, the plaintiff must show that: (1) piaintiff was subjected to unwelcome race harassment subjectively and objectively; (2) the harassment Was based on his race; (3) the harassment unreasonably interfered with plaintiff's work performance by creating an intimidating, hostile, or offensive working environment that seriously affected his psychological well- being; and (4) that there is a basis for employer liability. Thompson v. City of Monrovia, 186 Cal.App.4th 860, 876 (2010); Fisher v. San Pedro Peninsula Hospital, 214 Cal.App3d 590, 608 (1989). Notably, a ciaim for racial harassment must provide that the conduct complained of is severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile. or abusive to employees because of their race. See Lyle v. Warner Brothers Television Productions, 38 Ca|.4th 264, 278~279 (2006). Here, not a single fact supports a claim that Mr. Medhekar individually harassed Mr. Ibarra on account 0f his race. There is no mention of any statements or written documents such as emails by Mr. Medhekar directed at Mr. lbarra. The onlyreference to a communication, an email indicating receipt of Mr. Ibarra’s email and that the Board takes his concerns seriousiy, cannot support a racial harassment claim. John D. Winer Shawn D. Tillis August 13, 2019 Page S To these facts we add the fact that Mr. Medhekar is not mentioned in the DFEH complaint, and therefore Mr. lbarra failed to exhaust his administrative remedies. Cole v. Antelope Valley Union High School Dist, 47 Cal.App.4th 1505 (1996). Further, the time to amend his DFEH complaint has expired, and therefore no racial related claims could be alleged against him. Therefore, Mr. .ibarra’s claim for racial harassment against Mr. Medhekar should be stricken from the complaint. In order to prevail on his cause of action for intentional infliction of emotional distress, Mr. lbarra must establish: ”(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.” Hughes v. Pair, 46 CaL4th 1035, 1051 (2009) (internal quotations and citations omitted). lbarra must establish that Mr. Medhekar’s conduct was ”so extreme and outrageous as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” Alcorn v. Anbro Eng., Inc., 2 Cal.3d 493, 499 n". 5 (1970). In addition to the requirement that Mr. Medhekar’s conduct be outrageous, its conduct must be ”intended to inflict injury or engaged in with the realization that injury will result." Hughes, 46 Cal. 4th at 1051 (internal quotations and citations omitted). Again, as with his racial discrimination cause of action, there are no facts alleged in the comptaint that demonstrate anything remotely necessaxy to support an intentional infliction of emotional distress cause of action. As such, Mr. Ibarra’s cause of action for intentional infliction of emotiona! distress against Mr. Medhekar should also be stricken from the complaint. Eleventh cause of action for injunctive and declaratory relief is defective Mr. ibarra seeks a rather sweeping and far reaching injunction and declaratory relief covering numerous issues, including ordering PayActiv to remove negative or discriminatory references from his personnel ' file, a declaration that Mr. lbarra’s civil rights were violated, an order requiring harassment training and redistribution of anti~harassment policies, an order requiring PayActiv to set up a database to track harassment and discrimination claims along with an SOO-number to report such conduct, and numerous orders seeking to declare PayActiv a creditor within the meaning of federal law (15 U.S.C. section 1601 et seq.), and limitations on its ability to extend ”credit” and requirements to make disclosures. On their face noneof these requests appear applicable to any of the individual defendants, and rather appear directed solely to PayActiv. As such, the individual defendants shouid be stricken from the eleventh cause of action. Irrespective, California has enacted a declaratory relief act. Cal. Code Civ. Proc., § 1060. Generally, the eiements of declaratory refief are a (1) person interested under a written instrument (such as a deed or will), (2) actual controversy, and (3) request for a declaration of rights and duties. Cardellini v. Casey, 181 Cal.App.3d 389, 395 (1986). Federal iaw is similar. See 28 U.S.C. § 2201; Medlmmune, Inc. v. Genentech, Ina, 549 U.s. 118, 126 (2007). John D. Winer Shawn D. TiHEs August 13, 2019 Page 6 Here, there is no allegation in the complaint of any written instrument between Mr. ibarra and PayActiv (or any of the individual defendants) for which declaratory relief would be appropriate. Moreover, to-the extent that the eieventh cause of action seeks a declaration that PayActiv is a creditor under federal law or is extending credit within the meaning of the Code of Federai Regulations (see compiaint paragraph 121), there are no allegations in the compiaint ofany actua! controversy between PayActiv and Mr. ibarra. As such, it is not clear that he has standing to seek such relief, is not also not properly pled as an actual ca use of action. Therefore, we request that the eleventh cause ofaction be dropped from the complaint, but at a minimum the individual defendants and paragraphs 121(I) through 121(r) be struck from the complaint. First'cause of gction for whistleblower violation is defective Labor Code section 1102.5(a) prevents an employer from establishing a rule, regulafion or policy that prohibits an employee from reporting potential violations of law. Section 1102.5(b) prohibits an employer or person acting on behalf of an employer from retaliating against the employee ”because the employer believes that the employee disclosed or may disciose information” relating to a violation of law. Section 1102.5(c) prohibits an employer from retaliating against an employee who refuses to participate in illegai activity. Section 1102.5(d) protects employees who engage in any of the activities under subsections (a), (b) or (c). in order to estabiish a violation, lbarra must first establish that he ”disciosed” to defendants information relating to illega} activity. He must then establish that defendants ”retaliated” against him because he disclosed mega! activity to them (because there are no facts demonstrating that he ever reported this ”mega!" activity to any government agency). If he meets those burdens, then defendants may establish a legitimate non-discriminatory business reason for lbarra’s termination. Huger v. County of Los Angeles, 228 Cal.App.4th 1538, 1540 (2014). ”[T]he report of information that was already known did not constitute a protected disclosure.” Mize- Kurzman v. Marin Community College Dist, 202 Cal.App.4th 832, 858 (2012). After reviewing the plain meaning of the term "disciosure" and federal authorities, the court explains: [An] emmoyee’s report to the employee’s supervisor about the supervisor’s own wrongdoing is not a ”disclosure” and is not protected whistleblowing activity, because the employer already knows about his or her wrongdoing. Moreover, criticism defivered directly to the wrongdoers does not further the purpose of either the federal WPA or the California whistleblower laws to encourage disclosure of wrongdoing to persons who may be in a position to act to remedy it. Id., at-859 (internai citations omitted). John D. Winer Shawn D. Tillis August 13, 2019 Page 7 In addition, "[d]ebatable differences of opinion concerning policy matters [are] not disclosures of information under Labor Code section 1102.5 . . . . Disclosures related to the wisdom or efficacy of a policy are subject to the debatable policy matters limitation .... " Mize-Kurzman, 202 Cal.App.4th at 852, 854. As further explained by the court: [W]e do not intend to convey the idea that any mere thought, suggestion, or discussion of an action that someone might consider to be a violation of a law, rule, or regulation is a justification for a whistleblower complaint. Discussion among employees and supervisors concerning various possible courses of action is healthy and normal in any organization. It may in fact avoid a violation. Id., at 859-860 (quoting Reid v. Merit Systems Protection Bd. (Fed.Cir. 2007) 508 F.3d 674) {italics in the original). Here, the only information regarding his alleged disclosures appear in Paragraph 23 of the complaint. The complaint fails to allege that Mr. Ibarra actually disclosed illegal information to either Mr. Shah, Mr. Anwar or Mr. Aslam that was not already known to them, or that was in fact illegal. His November 12, 2017, email sent after he was told his position was eliminated also does not appear to constitute a disclosure because it does not clearly disclose any allegedly illegal activity or activity that was not already known to PayActiv. Even if he could establish that he made a disclosure, which is highly questionable, PayActiv is only liable for a violation of Labor Code section 1102.5 if it terminated Mr. Ibarra for his disclosure. lt did not. Mr. Ibarra was terminated after his position was eliminated due to his own failure to meet the business objectives of the job for which he was hired. After being told this, rather than work with PayActiv to find a suitable role for him, Mr. Ibarra simply chose to go out on an unspecified leave ofabsence and thereafter claim to be a whistleblower. Keep in mind that at the time Mr. Ibarra put himself on his unspecified an unapproved leave of absence PayActiv had a total of 18 employees. As such, neither the Family and Medical Leave Act nor the California Family Rights Act applied to PayActiv. lt is irrelevant that Ibarra may disagree with or contest the fairness of PayActiv's business-related decisions. See Arteaga v. Brinks, Inc., 163 Cal.App.4th 327, 343 (2008). Rather, as here, PayActiv was free to exercise business judgment in making a myriad of personnel and general business decisions. See Sada v. Robert F. Kennedy Med. Cntr., 56 Cal.App.4th 138, 155 (1997). Accordingly, PayActiv easily meets its burden to show it had legitimate, non-discriminatory reasons for its decisions regarding Mr. lbarra's employment. Mr. lbarra's alleged disclosures of wrongdoing were not even remotely a factor in any such actions or decisions. Accordingly, we ask that the first cause of action be struck from the complaint because no disclosure nor retaliatory action occurred. At a minimum the complaint must be amended to properly pied facts showing what illegal conduct was disclosed to Mr. Shah, Mr. Anwar, or Mr. Aslam that was not known and does not constitute a difference of opinion about business practices, including the dates and details of such disclosures. John D. Winer Shawn D. Tillis August 13, 2019 Page 8 Second, third and fourth causes of actions relating to disabilig are defective To succeed on his disability claims, Ibarra must establish that: (i) he suffered from a disability; (2) he was ”otherwise qualified” to do his job; and (3) he was subjected to adverse employment action because of his disability. Faust v. Calif. Portland Cement Co., 150 Cal.App.4th 864, 886 (2007); see also Green v. State of C01,, 42 Cal.4th 254, 257, 260 (2007). In addition, in order to prevail on a claim for failure to accommodate under Government Code section 12940(m), lbarra must prove: (1) that he suffered from a disability; (2) that he was qualified toperform the essentia! functions of the position; and (3) that PayActiv failed to ”reasonably accommodate” his alleged disability. Scotch v. Art Inst. of Cal., 173 Cal.App.4th 986, 1009-1010 (2009). To establish that he was a ”qualified individual,” Mr. lbarra must show, inter alia, that he was ”able to perform the essential functions of [his] job with or without accommodation.” Green v. State of Ca/., 42 Cal.4th at 260. Here, the doctor's note of November 2, 2017, provides no information regarding Mr. lbarra's leave. The complaint fails to allege that he has a disability, the nature of his stress, or that the stress was work related. He fails to allege that he requested an accommodation, and if so, when and of what kind. Without such facts he cannot carry his burden of pteading causes of action relating to disability discrimination, failure to accommodate or failure to engage in the interactive process. Moreover, his DFEH complaint falsely claims that Mr. lbarra "informed his superiors including the CEO and COOS of his physical disabifity.“ There is no docu mentation to support that any ”physical disabiiity” was disclosed to PayActiv In addition, even if Mr. lbarra could plead such causes of action, the‘California Workers’ Compensation Act provides a detailed and comprehensive system of remedies for work related injuries that are the "sole and exclusive remedy" for such injuries, and are available only in proceedings before the Workers’ Compensation Appeals Board. See Cal. Lab. Code, §§ 3602(a), 5300. Subject to only limited exceptions, none of which are relevant here, workers’ compensation is the only remedy available to injured empioyees against the employer responsible for injuries ”arising out of and in the course of employment,” including mental injuries. CaL Lab. Code, §§ 36008602, 5300; Shoemaker v. Myers, 52 Ca|.3d. 1, 16, 18 (1990; For example, the California Supreme Court has held that ciaims for intentional infliction of emotional distress (IIED) related to an employee’s termination, and even for alleged whistfeblower retaliation like that alleged here, are barred by the exclusive remedy provisions of the Workers’ Compensation Act. Miklosy v. The Regents of the Univ. of Cal., 44 Cal.4th 876, 902-03 (2008) [Act preempted plaintiff employees’ claims for IIED allegedly suffered as a result of employer’s whistleblower retaiiation]; Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, 24 Cai.4th-800, 814-815 (2001) [emotional distress allegedly caused by empioyer‘s abusive conduct during termination process held ”collatera! to or derivative of a compensabie workplace injury”]; Cole v. Fair Oaks Fire Protection Dist, 43 Cal.3d 148, 160 (1987) [claims are barred by the Act ”when the misconduct attributed to the employer is actions which are a normai part of the employment relationship, such as demotions, promotions, criticism of work practices”}.) An employee cannot ”avoid the exclusive remedy provisions of the Labor Code by characterizing the John D'. Winer Shawn D. Tiilis August 13, 2019 Page 9 employer’s decisions as manifestly unfair, outrageous, harassment, or intended to cause emotionat disturbance." Cole, 43 Cal.3d at 160. Unless Mr. lbarra choses to now make up facts that are untruthful, there is simply no allegations that could be made to support these claims. Even if they survive a demurrer, he will {ose on summary judgment, and if he seeks to fabricate evidence now PayActiv will aggressively pursue sanctions. Therefore, we believe the second, third and fourth causes of action should be dropped from the complaint. ' Fifth, sixth and seventh causes of action relating to race harassment, discrimination and failure to prevent are defective On February 12, 2019, Mr. lbarra filed his DFEH complaint. The DFEH complaint is defective in several ways. For exampie, it claims retaliation under the FMLA and CFRA even though these laws never applied to PayActiv because it only had 18 employees at the time of the alleged conduct. Thus, these claims are not even actionable. In addition, the Government Code states that a DFEH complaint ”shalt set forth the particulars” of the practices aiteged to have violated FEHA. Gov. Code § 12960(b). In addition, the DFEH compiaint “shall .' . .contain other information as may be required by the department [§.e., the DFEH].” By regulation adopted in 201,1, the DFEH states that an administrative complaint filed to obtain an immediate right-to-sue letter ”shail” contain, in addition to other requirements, ”a description of the aileged act or acts of discrimination, harassment or retaliation; and [1 the date or dates each aileged act of discrimination, harassment or retaliation occurred, including the date of the last or most recent alieged act." (Cal. Code Regs, tit. 2, § 10005(d)(3) & (4).) None of the allegations meet these requirements. Rather, the DFEH complaint merely alleges in very general terms that derogatory comments were made on a constant basis, but no specific dates are alleged. More importantly, as expressly required by the DFEH regulations, no expianation of the date of the last or most recent alleged act is set forth. This makes it impossibte to establish that the DFEH was timely filed. At best the compiaint appears to allege that conduct that occurred in 2016 around the time of the presidential election, butt no other details are provided. Based on that time frame the DFEH complaint wouid be untimely, and therefore Mr. lbarra’s race harassment claim could not stand. As such, his claims woutd be time barred. In addition, the seventh cause of action for faiiure to prevent racial harassment or race discrimination is also defective. E.g., Veronese v. Lucasfi/m Ltd, supra, 212 Cal.AppAth at 28; Trujillo v. North County Transit Dist, supra, 63 Cal.App.4th 'at 286.) The DFEH complaint does not state any ”particulars” of a failure to prevent claim, nor describe any alleged failure to prevent or the date or dates such failure to prevent occurred, as required. Gov. Code § 12960(b); Cal. Code Regs., tit. 2, § 10005(d)(3) & (4). Thus, Mr. lbarra failed’to exhaust his administrative remedies on this cause of action, and it should be struck from the complaint. John D. Winer Shawn D. Tillis August 13, 2019 Page 10 We hope this meet and confer is helpful in laying out some of the background regarding this matter and setting forth the facial defects we see in the complaint. Please let us know by August 23, 2019, if you will amend the complaint. Otherwise will prepare a demurrer and motion to strike. As noted, we would welcome an opportunity to discuss the matter with you by phone. PayActiv and the individual defendants remain committed to having discussions about a potential resolution of this matter on reasonable terms. Please let us know if you have any interest in doing so. Thank you for your time and attention. Sincerely, Willia Attac muompflmu fibéfiiéf i ., .9: 3 ‘9 -Reso utmn - z - - 903-015 IIIIII 'f'Ii-‘Eo counnfssamv 3- . . _. , - 224539 3-. 224539 ' F68covarwsomv Pos-ms -_ EXHIBIT 1 I 1 EXHIBIT 2 I I Weissman, William Hays From: Pedro lbarra Sent: Friday, November 24, 2017 9:48 AM To: ' Weissman, William Hays Subject: '- Re: Your email re PayActiv Attachments: WBExecution201 ?.pptx htt ://assemb1 .ca. ov/dail 11e On Fri, Nov 24, 2017 at 7:55 AM, Weissman, William Hays wrote: That's fine. William Hays Weissman Littler Mendelson, P.C. Tel 925.927.4545 Cell 925.324.3960 On Nov 24, 2017, at 7: 14 AM, Pedro Ibarra wrote: Good morning Mr. Weissman, I am driving back from visiting family. May we reschedule for 9:45 am this morning? I deeply apologize for the inconvenience. Thank you. Regards, Pedro “Wrong does not cease t0 be wrong because the majority share in it. ” --- Leo Tolstoy Sent from my iPhone On Nov 24, 2017, at 6:44 AM, Weissman, William Hays wrote: Iwill call you at 9 am. There is no estimated length as I think that largely depends upon you. The topic is how you and PayActiv to move forward fi'om here. ' William Hays Weissman Littlar Mendelson, P.C. Tel 925.927.4545 Cell 925.324.3960 On Nov 23, 2017, at 9:48 AM, Pedro Ibarra wrote: Dear Mr. Weissman, Tomorrow (1 1/24/2017) at 9 am PST works for me. Truly appreciate ifyou may please provide with me with points 0fyour discussion and expected length ofphone call (without my contribution). Please advise if this time works for you. Have a great Thanksgiving and Happy Holidays to you and family! Regards, Pedro - Mobile # 831-706-1838 “Wrong does not cease to be wrong because the majority share in it.” - Leo Tolstoy ‘ On Wed, Nov 22, 2017 at 12:36 PM, Weissman, William Hays wrote: Mr. Ibarra, Do you have some time to discuss this matter on either Friday or Monday next week? If so, please just let me know a time. Thanks, William William Hays Weissman, Shareholder 925.927.4545 direct 925.324.3960 mobile 925.891 .2551 fax \mveissmangz)!ittlcr.com Treat Towers, 1255 Treat Blvd. Suite 600 1 Walnut Creek C_A 94597 1 littler.com Employment & Labor Law Solutions Worldwide From: Pedro Ibarra [mailto:ibarraikev@gmail.com] Sent: Wednesday, November 22, 2017 8:42 AM To: Ajit Medhekar Cc: David Carlick; Kabir Misra; Weissman, William Hays ,_ Subj ect: Re: Your email re PayActiv Dear William, As I have made my claims pursuant to California Labor Code Section 1102.5 a-i, (Whistleblower) which state in part "(b) An employer, or anyperson acting on behalfofthe employer, shall not retaliate against an employeefor disclosing infiarmation, to apens'on...14Il7o has the authority to investigate, discover, or correcttlze violation or noncompliance... " as I have dutifillly disclosed my allegations to all executives and advisers Ajit, David and Kabir whom have the authority to investigate before I seek a governmental review. I wish to respectfully request to this board my reinstatement of position at PayActiv, specifically wages and benefits until all investigations are resolved. If this board selects to d9 so Iwould - recommend to be put on paid administrative leave. A good faith reinstatement of wages, benefits and position by the - advising board will be highly commendable and unrelated. Thank you. I Happy Holidays! Regards, Pedro “Wrong does not cease t0 be wrong because the majority share in it. ” ~- Leo Tolstoy On Mon, Nov 20, 2017 at 3:46 PM, Ajit Medhekar wrote: Dear Pedro, Thank you very much for you email to me and other board members/advisors regarding your concerns about PayActiv. Rest assured that we take such matters very seriously and have requested our attorney, William Weissman of Littler Mendelson PC, to be the point-person to respond on our behalf while the matter is being evaluated. Please direct all your fixture enquiries t0 him directly. Best regards, Ajit Ajit Medhekar Director & Co-Founder WW“... . E »..- www.navactiv.com This email may contain confidential and privileged material for the sole use ofthe intended recipient(s). Any review, use, distribution or disclosure by others is strictly prohibited. If you are not the intended recipient (0r authorized to receive for the recipient), please contact the sender by reply email and delete all copies ofthis message. Littler Mendelson, P.C. is part of the international legal practice Littler Global, which operates worldwide through a number of separate legal entities. Please visit www.littler.com for more information. This email may contain confidential and privileged material for the sole use of the intended recipient(s). Any review, use, distribution or disclosure by others is strictly prohibited. If you are not the intended recipient (or authorized to receive for the recipient), please contact the sender by reply email and delete all ccpies ofthis message. Littler Mendelson, P.C. is part ofthe international legal practice Littler Global, which Operates worldwide through a number of separate legal entities. Please visit www.littler.com for more information. This email may contain confidential and privileged material for the sole use of the intended recipient(s). Any review, use, distribution or disclosure by others is strictly prohibited. Ifyou are not the intended recipient (or authorized to receive for the recipient), please contact the sender by reply emaii and delete all copies ofthis message. Littler Mendelson, P.C. is pan ofthe international legal practice Littler Global, which Operates worldwide through a number ofseparate legal entities. Please visit www.littler.com for more information. FinTech PayActiv Board Whistleblower Notification, Timing & Employee Protection waymanguwt l: ,w“1.1%" X Alerted PayActiv Advisers and Investors: Email Nov. 17th, 2017 Ajit Medhekar David Cadlck Kabir Masa Don Peppers Amer Akhta: Baba Shiv Sanjlv Das Jeanna Abbott Rajw Lal Peter Verblca W» 9. 5?? I Eyv-nff?‘ tpmg.’ mv-v 9p». W, nigh“? .r51w.:fl...~ , 0;?" 3:5», q!” 514%;va Ajit/Board Email Response Nov 20, 2017 “...matter is being evaluated.” gmtgf‘z'i '3‘}! 5‘"M‘.‘Li’di"”J"?! J&fl . :1 “2:63? ~ w. .. » vL3: 3‘“ )i‘lfik M' m .JL J'fi‘x‘. ",pw “7r” M313? ,- - nu . raw Iwmm 73¢ EAm’,iv“? ‘ng... .ma firxat tnnix, 9333‘ 3i? \. .y Internal Remedy: Whistleblower Protection and Resources Email Request: Nov 22, 2017 Seeking reinstatement of position and wages followed by paid administrative leave pending internal and government regulators review. i I l I I l I - I I l Ajit Medhekar David Carlick Kahlr Masa Don Peppers Amer Akhtar Baba Shiv Sanfiv Das Jeanna Abbott Rajiv Lat Peter Verhica Response: Company Attorney Nov 22, 2017 seeking meeting. 1.1::Y' ' "é” . .mry.’ uW»; 1%;ch ; ”WW ,’ m9: Jame r? ,-; quu' 30-3"?st my,» m . mi?“ V 93‘3“. Til“? 3:. . 13;, 1m)“ h t “ta t‘ 523%“fixs’w‘ y. - Jyfi";£ia§;é2.c?3¥a . ° . gég-gfi'fiufifi‘gg 314353 QEZxT-agxg '1‘ 'fig‘z External Remedy- Whistleblower will notify the following: A response and from board is Pursuant to Ajit’s/Boards email required to establish dated Nov. 20, 201 "...matter is position. being evaiuate .". Notify GovernmentAgencies I I I CFPB- IRS Whistleblowero 04 Assembly Members- FTC. . htt s: www.consumer mance. https://www.irs.gov/ca htf o’ abnk-Ussembl -C https://www.ftc.gov/tips- GAO' ”mm.“ States Dept 0f labor govlabout-ustlothheécfgb- mpliance/whistleblowe a.govl advice/busgness. http://www.gao.go ’ Whlftiebioweu: Consumer wants-vou-to-blow-the-whistle- r-informant-award center/pfivacy.and. v/mobile/products/ Fmancral Protection Act (CFPA) on‘laWbreakersz security/data.secuflty GAO‘OS'1075R [12 U.S.cn E 5567] https://www.whistleblowers.g ov/financial w .1 ‘ w-k‘.‘ Mu ””733: W.“ fin ’. .2} ’3‘ ,.m " www‘wé’“ um ’ km”?r - n » ‘ v u’ . A , l. -. p rv .aw 4 r w ng‘gu m.,74 w quV fivw,1‘ a, fat???” 62.3.21533. 3 ‘3. , - =wz'w' ?Cjwmz ,.6.. ”unfit; w» .v EXHIBIT 3 I I "##5TRUCTURE LAW GROUP, LLP January 29,20 1 8 D. CLINTON WEBB. ESQ. c\xchb@§mzcul[elaw,cgm Sent Via E-mail William Hays Weissman, Esq. Littler Mendelson P.C. Treat Towers, 1255 Treat Blvd, Suite 600 Walnut Creek, CA 94597 Email: wweissman@littler.com Re: Pedro Ib'arra /PayActiv, Inc. Dear William: Further to the parties’ ongoing settlement discussions, Mr. Pedro Ibarra hereby submits the following demand for settlement ofany and all claims against PayActiv, Inc. (“PayActiv”), whether arising from or relating to his employment, his use 0f PayActiv- products as a consumer, his ownership of capital stock ofPayActiv, or otherwise: 0 Two million dollars, paid in lump sum at closing. o Two percent equity ownership of PayActiv, Inc.-, calculated on an as-converted, filliy-diluted basis. Such equity ownership to be'in the form of Series A Preferred stock, having usual and customary anti-dilution, liquidation, information, registration, voting, first refusal and co-sale rights and privileges and all such other rights and preferences provided to the lead investor of PayActiv’s Series A preferred stock financing. Mr. Ibarra will surrender a1] previously granted stock options in connection With this equity issuance. 0 Reinstatement of Mr. Ibarra’s fifll-time employment in good standing, with the same reporting structure, responsibilities and title as before, at an annual salary of $180,000, plus such other insurance, retirement, vacation and other benefits previously provided to Mr. Ibarra, in each instance on terms no less favorable than previously provided to Mr. Ibarra. Such employment to be subject to a five-year contract (neverting to at-Will employment thereafier), providing for full payout of the remainder ofthe five-year term in lump sum in the event of early termination or resignation by Mr. Ibarra for good reason. o o A seat on PayActiv’sl-Board of Directors. This settlement offer may be accepted in principal by returning a countersigned copy ofthis letter to the undersigned, bearing the signatm'e ofan authorized agent ofPayActiv where indicated below, on or before 5pm PST on Friday, February 2, 20 1 8. Following the timely receipt ofa countersigned copy ofthis 1754 Technology Drive, Suite 135 o San Jose, California 95110 o Tel: 408.441.7500 - Fax:408.441.7501 - www.structurelaw.com -.-_--. p-d... h...“ -. -u William Hays Weissman, Esq. Jammy 29, 201 8 Page 2 letter, the parties shall have ten calendar days to negotiate in good faith regarding definitive terms of' agreement regardingthe matters set forth herein, which shall supersede and replace this letter. The parties’ failure to mutually execute definitive terms of agreement prior to the expiry of such ten~day period shall render any settlement reflected by this letter agreement null and void. Sincerely, D. Clinton Webb, Esq.- Accepted and Agreed: PAYACTIV, INC. 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WWW, ,. “m g. mfiM‘33,» muse v ' " ‘ ~ ‘ WWW 689 2615mm . , .l é ,~·•··· \ SUPERIOR COURT OF CALIFORNIA County of Santa Cruz People of the State of California vs. PEDRO IBARRA Case No. F00887 MINUTE ORDER ==-===============================================;=================== Dept.3 04/16/01 1:30 pm REPORT AND SENTENCE ==-==============-=========================~========================== Charges: 1) 213 (A) (1) (A) PC-F C, 2) 459 PC-F D, 3) 236 PC-F D 4) 236 PC-F D, 5) 136 .1 (C) (1) PC-F D Honorable Judge Thomas E. Kelly presiding. Clerk: C. Kirby. . Court Reporter: E.Markhart. Deputy District Attorney: Rosell Defendant is present with Attorney T. Salatich. Brother Francisco Ibarra Jr. spoke to Court. Ct(s) 2 3 4 5 dismissed on motion of the District Attorney in the interest of justice view plea Ct.1. Defendant waives arraignment for pronouncement of judgment. JUDGMENT: Probation is denied and the defendant is sentenced to the California Department of Corrections as· follows: The Court finds factors in mitigation and states the circumstances for the record. AS TO CT. 1: the Court imposes the LOW term of 3 years and O months. Ct. 1· is declared the principal term. Defendant is sentenced to State Prison for a TOTAL TERM of 3 years O months. Defendant's credit for time served is 118 days local time plus 17 days per 4019(b) PC for a total of 135 days. Defendant is ordered to pay $400.00 Restitution Fine per 1202.4 PC through the Department of Corrections as they shall direct. Pursuant to 1202.45 PC, a Restitution Fine in the amount of $400.00 is ordered and suspended unless defendant's parole is revoked. Defendant is ordered to make restitution per 1202.4 PC through CDC as they shall direct as follows: Suzie Garcia in the amount of $1600.00. 300 Ponderosa Ave. Watsonville CA 95076. 4/17/01 Page: 2 Case Number: F00887 People vs. PEDRO IBARRA =====================~======---=================================-=========~===== CUSTODY STATUS: Defendant remanded to the custody of the Sheriff to be delivered to the Department of Corrections. Defendant is to be delivered to CDC at SANQUENTIN. ----------- MINUTE ORDER END/ tjs ------------- {mm rm}: SUPERIOR COURT OF CALIFORNIA, CO"; Y OF SANTA CRUZ ’ " rancoun‘russamr ..._. 51m aoaess: 701 OCEAN STREET ‘ mums moasss: cm AND zap cone: SANTA CRUZ , CA 95060 anmcx NAME: j)”, s a m _ PEOPLE OFme STATE 0F CALIFORMA IE“ J LHE é / fi JO -_ .’ \‘ . j. cHfi/szwg FA7mm Cw... DEFENDANT: p’e’ ”(*4 /L AM fayM (7 flg/ m}g- SANTA CRUZ g}- IM CASE NUMBER: H&GERPRINT FORM p446? 7 “'1 k lNSTRUCTIONS lmmediétely following arraignment in superior court of a defendant charged with a felony or arraignment of a- defendant by a municipal court judge sitting as a superior court judge, the court shall require the defendant to provide a right thun’ibprint on this form. 1n the event the defendant is convicted, this form shall be attached to the minute order reflecting the defendant's sentence and shall be permanently main- tained in the court fiie. Please see Penal Code section 992 for further information, including when the defendant is physically unable to give a right thumbprint. For a proper imprint and durable record, this form should be printed on paper that meets California Depart- ment of Justice Specifications: a 99 pound white tab card or 100 pound white tab stock 0.0070 inch thick (0.0066 through 0.0074 inch is acceptable). Paper smoothness should be 100-140 Sheffield units. The form should be printed with the grain left to right. , 1‘. The box to the right contains the defendant’s w right tfiumbprint E other print (specify) : 2. The print was taken on (date) : (0' lq ' OD 3. The print was taken by a. Name: I 1&3} 1b AAM‘D b. Position: DEPUTM gH’gaPF c. Badge or serial No.: “g Form Adomed bv the FINGERPWNT FORM Pen. Cede. § 992 Judicial Council at Calilomta - £8309. lfiew Jgnpyy. 1. 389$ •. -•···i ( oUPERIOR COURT OF CALIFORNI., county of Santa Cruz People of the State of California vs. PEDRO IBARRA Case No. F00887 MINUTE ORDER ==========================================================-=====-===== Dept.3 04/09/01 1:30 pm REPORT AND SENTENCE ====;================================================================= Charges: 1) 213{A)(l)(A) PC-F C, 2) 459 PC-FA, 3) 236 PC-FA 4) 236 PC-FA, 5) 136.l(C)(l} PC-FA Honorable Judge Thomas E. Kelly presiding. Clerk: c. Kirby. Court Reporter: c. Love. Defendant is present with Attorney T. Salatich. Time continues to be waived. NEXT COURT DATE(S): Case is continued to 04/16/01 at 13:30 in Dept. 3 for Report and Sentence. Defendant is ordered to be personally present. CUSTODY STATUS: Defendant is remanded to the custody of the Sheriff until next appearance. Bail remains set at $100000.00. ----------- MINUTE ORDER END/ cak -------------------------- ,-- r-· ~vPERIOR COURT OF CALIFORNIA County of Santa Cruz People of the State of California vs. PEDRO IBARRA Case No. F00887 MINUTE ORDER ==========================~=========================================== Dept.3 03/19/01 1:30 pm REPORT AND SENTENCE ============================================================-===-===== Charges: 1) 213(A)(l)(A) PC-F C, 2) 459 PC-FA, 3) 236 PC-FA 4) 236 PC-FA, 5) 136.l(C)(l) PC-FA Honorable Judge Thomas E. Kelly presiding. Clerk: C. Kirby. Court Reporter: c. Love. Deputy District Attorney: Rosell Defendant is present with Attorney T. Salatich. Time continues to be waived. NEXT COURT DATE(S): RS appearance on 05/07/01 at 13:30 is vacated. Case is continued to 04/09/01 at 13:30 in Dept. 3 for Report and Sentence. Defendant is ordered to be personally present. CUSTODY STATUS: Defendant is remanded to the custody of the Sheriff until next appearance. Bail remains set at $100000.00. ----------- MINUTE ORDER END/ cak ============= («SUPERIOR COURT OF CALIFOR £A - ' County of Santa Cruz People of the State of California Dept. 3 Case No. F0088? VS. ORDER FOR PLACEMENT, DELIVERY AND RETURN (Section 1203.03 pC) FEDRo IBARRA The above-named defendant having been duly convicted in the above- named court of the following offense(s): 1) 213(A)(l)(A) PC~F,‘2)_459 PC~F, 3) 236 PC~F, 4) 236 PC*F 5) 136.1(C)(1) PC~F and the Court having-concluded that just disposition of the case requires such diagnosis and treatment services as can be provided at a diagnostic facility of the Department of Corrections, IT IS THEREFORE ORDERED that the above-named defendant be placed temporarily in such diagnostic facility for a period not to exceed 90 days in accordance with the provisions of Section 1203.03 of the California Penal Code. IT IS FURTHER ORDERED that the Director of the Department of Corrections report to the Court his diagnosis and recommendations concerning the above-named defendant within the said 90 days. IT IS THEREFORE ORDERED that the Sheriff deliver said defendant to the custody of the Director of Corrections at (${Ean Quentin (~)Chowchilla IT IS FURTHER ORDERED that prior to the expiration of the 90~day period, the Director of Corrections shall notify the Sheriff of Santa Cruz County of defendant's availability to return to Santa Cruz County Jail, and without furtherflorder of the Court, the Sheriff shall return defendant, giving notice to the Clerk of the Court of defendant's r turn. ,_ M W, Judge Th mas E.‘Kellyh Judge the Superior u Dated: '2. 15, 2000 in that at said time and place the above named defendant(s) did unlawfully enter an inhabited dwelling house and trailer coach and inhabited portion of a building occupied by SUZI GARCIA, with the intent to commit larceny and any felony. "NOTICE: The above offense is a serious felony within the meaning of Penal Code Sec- tion 1192.7(c)." It is further alleged that the above offense is in violation of Penal Code section 462(a). COUNT 03 A Violation of section 236 of the Penal Code of the State of California, a felony committed on or abcut June 15, 2000 in that at said time and place the above named defendant(s) did unlawfully violate the personal liberty of SUZE GARCIA, said violation being effected by violence, menace, fraud, and deceit. COUNT 04 A Violation of section 23g of the Penal Code of the State of California, a felonx committed on or about June 15, 2000 in that at said time and place the above named defendant(s) did- unlawfully violate the personal liberty of STEPHANIE GARCIA, said violation being effected by violquf, menace, fraud, and deceit. COUNT 05 A Violation of section 136.1(C)(1) of the Penal Code of the State of California, a felony committed on or about June 15, 2000 in that at said time and place the above named defendant{s) did knowingly and maliciously do an act described in subdivisions (a) and (b)‘and such'act was accompanied by force and an express and implied threat of force and violence upon SUZI GARCIA and a third person and the property of a victim, witness and third per- .4 mm 10 11 12 l3 14 15 16 17 l8 19 20 21 22 Qmmob sen. Therefore, complainant declares under penalty of perjury that the foregoing is true and correct. Executed on October 16, 2000 at Santa Cruz, California. RONALD L. RUIZ- DISTRICT ATTORNEY JE Y S. ROSELL ASSISTANT DISTRICT ATTORNEY WPD EC SUPERIOR COURT OF CALIFORNIA County of Santa Cruz People of the State of California vs. PEDRO IBARRA Case No. F00887 MINUTE ORDER ====================================================================== Dept.3 10/12/00 9:00 am TRIAL READINESS CONFERENCE =========--===============================================---========~ Charges: 1) 664/213{A) (l)A PC-FA, 2) 459 PC-FA, 3) 236 PC-FA 4) 236 PC-FA, 5) 136.l{C) (1) PC-FA Honorable Judge Thomas E. Kelly presiding. Clerk: J. Ruiz. Court Reporter: A. Allen. Deputy District Attorney: J. Rosell Defendant is present with Attorney T. Salatich. Time continues to be waived. NEXT COURT DATE(S): MIL appearance on 10/13/00 at 13:30 is vacated. JT appearance on 10/16/00 at 9:00 is vacated. Trial Readiness Conference set for 10/19/00 at 9:00 in Dept. 3. case is set for Motions in Limine on 10/20/00 at 13:30 in Dept. X. Case is set for Jury Trial on 10/23/00 at 9:00 in Dept. 3. Defendant is ordered to be personally present. CUSTODY STATUS: Defendant remains out of custody on posted bail bond. =========== MINUTE ORDER END/ cak ============= SUPERIOR COURT OF CALIFORNIA County of Santa Cruz People of the State of California vs. PEDRO IBARRA Case No. F00887 MINUTE ORDER =:==~================================================================= Dept .3 08/30/00 8:15 am ARRAIGNMENT (Information) ===-================================================================== Charges: 1) 664/213(A) {l)A PC-FA, 2) 459 PC-FA, 3) 236 PC-FA 4) 236 PC-FA, 5) 136.l{C) (1) PC-FA Honorable Judge Thomas E. Kelly presiding. Clerk: J. Ruiz. Court Reporter: A. Allen. Deputy District Attorney: J. Rosell Defendant is present with Attorney T. Salatich. A copy of the Information is provided to defendant/counsel. Formal reading, arraignment on the charges, and advisement of Constitutional rights are waived. Defendant pleads NOT GUILTY to all counts. Defendant denies allegations. Time is not waived. Last day: 10/30/00. NEXT COURT DATE(S): Trial Readiness Conference set for 10/12/00 at 9:00 in Dept. 3. Case is set for Motions in Limine on 10/13/00 at 13:30 in Dept. 3. Case is set for Jury Trial on 10/16/00 at 9:00 in Dept. 3. CUSTODY STATUS: Defendant remains out of custody on posted bail bond. ----------- MINUTE ORDER END/ ljc ------~------ «-~_ ’o .- SUPE 0' oum' OFCALIORNI ,30.0?5aHThCfi:7 RONALD L. RUIZ, DISTRICT ATTORNEY OOAU pg gzgsCOUNTY GOVERNMENT CENTER 701 OCEAN STREET, Room zoo SANTA CRUZ, CALIFORNIA 95060 TELEPHONE: (831) 454-2400 ATTORNEYS FOR THE PEOPLE SUPERIOR COURT 0F CALIFORNIA COUNTY 0F SANTA CRUZ THE‘PEOPLE 0F THE STATE 0F CALIFORNIA, ) No: F00887 ) . plaintiff, ) INFORMATION vs. ) DATE: 08/30/00 _ ) TIME: 08:15 A.M. pEDRo IBARRA ) DEPT: 3 . ) ) ) ) Defendant(s), ) The District Attorney of the County of Santa Cruz, State of California, accuses PEDRO IBARRA of the following crime(s) com» mitted in the County of Santa Cruz, State of California: COUNT 01 A Violation of section 664/211 of the Penal Code of the State of California, a felony committed-on or about June 15, 2000 in that at said time and place the aboVe named defendant(s) did unlawfully and by means of force and fear attempt to take pei- sonal property from the person, possession, and immediate presence of SUZI GARCIA, and said offense was perpetrated in an inhabited dwelling, trailer coach and inhabited portion ofva building. It is further alleged, pursuant to Penal Code sectioh 213(a)(1)(a), that‘the above offense was committed by thé defend~ ant who voluntarily acted in concert and entered a structure 24 25 26 2'7 28 described in that section. COUNT 02 A Violation of section 459 of the Penal Code of the State of California, a felony committed on or about June 15, 2000 in that at said time and.place the above named defendant(s) did unlawfully enter an inhabited dwelling house and trailer coach and inhabited.portion of a building occupied by SUZI GARCIA, with the intent to commit larceny and any felony. "NOTICE: The above offense is a serious felony within the meaning of Penal Code Sec~ tion 1192.7(c)." It is further alleged that the above offense is -in violation of Penal Code section 462(a). COUNT 03 A Violation of section 236 of the Penal Code of the State of California, a felony committed on or about June 15, 2000 'in that at said time'and place the above named defendant(s) did unlawfully violate the personal liberty of SUZI GARCIA, said violation being effected by violenCe, menace, fraud, and deceit. COUNT O4 A Violation of section 236 of the Penal Code of the State of California, a felony committed on or about June 15, 2000 in that at said time and place the above named defendant(s) did unlawfully violate the personal liberty of STEPHANIE GARCIA, said. violation being effected by violence, menace, fraud, and deceit. COUNT 05 A Violation of section 136.1(C)(1) of the Penal Code of the State of California, a felonx committed on or about June 15, 2000 in that at said time and place the above named defendant(s) did knowingly and maliciously do an act described in subdivisions (a) and (b) and such act was accompanied by force and an express and implied threat of force and violence upon SUZI GARCIA and a third persofi and the property of a victim, witness and third.per~ 8011. V All of the above violations are cofitrary to the form, force, ‘ and effect of the Statute in such caSe made and provided and against the peace and dignity of the People of the State of l 2 3 4 California. 5 Dated: August 24, 2000. 6 RONALD L. RUIZ 7% DISTRICT ATTORNEY 8 ‘ -:§:A§LuL¢X7 9 FRE S. ROSELL ; As ISTANT DISTRICT ATTORNEY‘ lo g1}? _ Mémum M-w 11 ' 12H 13 14 ; 1.41 16 1'7 18 19 20 21 . 22 23 ‘ 24 25 26 I 27 28 . r / .oUPERIOR COURT OF CALIFORNih County of Santa Cruz People of the State of California vs. PEDRO IBARRA Case No. F00887 MINUTE ORDER =~--=========================================="======================= Dept.3 08/18/00 9:00 am CONTINUED PRELIMINARY EXAMINATION ==---==-==========================~=======================-=-==~=====- Charges: 1) 664/213(A)(l)A PC-F H, 2) 459 PC-F H, 3) 236 PC-F H 4) 236 PC-F H, 5) 136.l(C)(l) PC-F H Honorable Judge Thomas E. Kelly presiding. Clerk: C. Kirby. Court Reporter: c. Love. Deputy District Attorney: J. Rosell Defendant is not present; represented by Attorney T. Salatich. PRELIMINARY EXAMINATION COMMENCED. Day 2 of hearing. Witnesses are sworn and testify on behalf of the People. { 1) Officer Williamson (WPD) The Court finds sufficient cause on Ct(s) 1-5. DEFENDANT IS ORDERED HELD TO ANSWER. Information is to be filed. NEXT COURT DATE(S): Defe~dant is ordered to appear 08/30/00 at 8:15 in Dept. 3 for Arraignment on Information. Defendant is ordered to be personally present. CUSTODY STATUS: Defendant remains out of custody on posted bail bond. ----------- MINUTE ORDER END/ jr ============= SUPERIOR COURT OF CALIFORNIA County of Santa Cruz People of the State of California vs. PEDRO IBARRA Case No. F00887 MINUTE ORDER =~=~================================================~=======-========= Dept.3 08/07/00 1:30 pm PRELIMINARY EXAMINATION ==========================================~================--========= Charges: 1) 664/213(A) {l)A PC-FA, 2) 459 PC-FA, 3) 236 PC-FA 4) 236 PC-F A, 5) 136 .1 (C) (1) PC-F A Honorable Judge Thomas E. Kelly presiding. Clerk: c. Davey. Court Reporter: T. O'Connor. Deputy District '.Attorney: J. Rosell Defendant is present with Attorney T. Salatich. Case is called for Preliminary Examination. Day 1 of hearing. WITNESSES ARE SWORN AND EXAMINED: The following witnesses are sworn and testify on behalf of the People: ( 1) John Espinosa ( 2) Kim Austin Defendant waives one continuous hearing. NEXT COURT DATE(S): Preliminary Examination is continued for further hearing on 08/18/00 at 9:00 in Dept. 3. Defendant is ordered to be personally present. CUSTODY STATUS: Defendant remains out of custody on posted bail bond. ----------- MINUTE ORDER END/ cd ============= guarantee for failure to provide NOTE: This is an Appearance Bond and cannot be construed as a payments, back alimony payments, FINES or Wage Law claims , nor can it be used as a Bond on Appeal. NATIONAL AUTOMOBIEEE AND CASUALTY INSURANCE CO. r- NAMESAND “058555 OgaA‘SAGENCV ~‘l A CAL ORNIA CORPORATION anta fuz 0n s C/O ASSOCIATED BOND AND INSURANCE AGENCY 99 SOUTH LAKE AVENUE. SUITE 500. PASADENA. CA91101-2643 287 water St‘ ’ sama cruz’ CA 95060 TELEPHONE: (626) 449-0449 L- - TEL 831~425-1 180 J IN THE ................§11.9.9995 .................. COURT 0FTHE ................................S.339"???......................... JUDICIAL DISTRICT COUNTY 0F ........................ .S.333%.??? ...................... , STATE 0F CALIFORNIA THE PEOPLE 0F THE STATE 0F CALIFORNIA F0088 BAH. BOND Plaintiff CASE No. ......................... .7................. vs. ' 3 DIw DEPT. N0. .................................. ................................ Pedron’arra . MT 7 0 8 8 2 _ Defendant DefendantPedmIbarra ......................................................................................................................................... {Name of Defcndam) Booking No having been admitted to bail in the sum of ........93.1.9.§§¥§§§§I§93§9§§fig???....................................................................... ................................................................................. Dollars ($ 100’00000 ), and ordered to appear in the above-entitlcd coufl 08/07/00. I 1:30 PM 19 on 459 / 182(A)(1) I 135.195le 1212.5(A) PC Charge“. ..........25§‘;3ixséga.r.a.fi.c§ ............................................ , .................(giége..51.];gagfiéayéfi'.&.xfagfiy.3. ................ , Now, the NATIONALAUTOMOBILE AND CASUALTY INSURANCE CO., a California corporation, hereby undertakes that the above~named defendant will appear in the above-named court on the date set forth to answer any charge in any accusatory pleading based upon the acts supporting the complaint filed against him/her and all du§y authorized amendments thereof, in whatever cOurt it may be prosecuted, and will at a1! times hold him/herself amenable to the orders and process of the court, and. if convicted, wiil appear for pronouncement of judgment or grant ofprobafion; or if he/she fails to perform either of these conditions, that the NATIONAL AUTOMOBILE AND CASUALTY INSUWufimEsaéarmwm °f 18W If the forfeiture of this bond be ordered- by the Court, judgment may be summarily made and entered forthwith against the said NATIONAL AUTOMOBILE AND CASUALTY INSURANCE CO. a California corporation, for the amount of Its undertaking herein, as provided by Sections 1305 and 1306 of the California Penal Code. ..................................................................................................................................................... THIS Bomb Is vom 1F LIMITS ALTERED 0R BRASED. u: com- NATIONALA BINBD WITH OTHER BONDS 0F $100’Ooom INS THIS COMPANY TO FURNISH BAH... 0R IF WRITTEN IN EXCESS OF ............................................. BY / i AUG 3 0 2000 C 'Attomcffin-FR THIS BOND IS VOID IF POSTED . AFTER ............................................. ‘. . . . I certify under penalty of perjury that I am a licen ed lgail Pag/entuz tof the National Automobile and Casualty {wgm Co. and thatI am executing this bail bond at" Kw"..6\ .................................................................... ,C’alifomia on ........ 2;.-:(:5....). ....... ' , ate The Premium Char ed for _ W C 3 this Bond 1s $ filooo 7/ ........ t . , ....................... .. .............. Signature of Bail AoentPerAnnum. a V 1' ' Approved {his ................. day of.................................. , 19 ....... Name ............ "...... ............................................................ u .......... FORM No. 7504 7/98 Title..............; ......................... . ................... ............................... SAN; A cnuz COUNTY SHERIFF-conobf. (087?“ u..- Booms u 3-313847 , Booxme SHEET vg; NAME LAST F1937 MIDDLE ARREST DATEITIME ARREST aepoan BOOKING DATEITIME I 3M2 RA , PEDREI SALINAS Oé/iSKOQ 0335 XXHOSISES- 06/151130 1101 s-NUMBEH cu n Fe: u soc. sec. s aoomne Facxu'rv Boomsomega 8*197464 Ai‘flfiSS-‘B'BO . . A. .., HATER ST B D H LDCKRIBGE Home Aooaess cm STATE PHONE a aooxmeWpe 1333 PQULSEN RID HATSflNUILLE CA 7687930 FRESH ARREST Race sex AGE one o: 9mm 9.0.3. omens ucENsamon loan sure PAROLE: Pnoa. AGENT HISPfiflIC H 32?. 05/19/78 EA 3.152%?4'74 Cé HAIR eyes Hr. wr. LANGUAGE ALMSIES) ’C' ‘ v. .ELK BRO 50.: 1?0 SALINQE , PEBRB IBARRA 5 5M..J.N‘AS ; PEDRO IBA R'Rfi i- SALIENTomnnmsmsncs - emeneencv NAME EMERGENCYAeoness crrv STATE prions: r 0 fl ‘ - ' I u .F RANCIQCD IBéRRfi . ‘ 7688182 Ann. AGENCY anassme OFFICER Io n Locmou or: ARREST cm sure UPI! BJC X 36.5 BREE LQNE J HATSUNUILLE CA occum‘nou - EMPLOYER Aooness cm sure STUDENT cymees WAaaANT a :ssumeAGENCY BAIL ass PC} 459 BAIL INCREASE PER YUflTS p06 537 SC/FEI.. 100000 CHARGES WARRANT» :ssume Aeeucv BAIL n'es CHARGES WARRANT n :ssums Aseucv BAIL ass cHAases wannaur a Issume AGENCY amt. nas‘" cHAaess WARRANT a :ssume Aesucv aAlL Res cHAnses WARRANT # :ssuma AGENCY mm. ass CHARGES WARRANT s assume AGENGY ’ j 8m ass - CHARGES wmamr a nssums Aeé'fizcv “‘ ~ - “"‘ CHARGES WARRANT a Issume AGENCY mus DEFENDANT ms seen INFoameo 0F His; a RIGHT To APPEAR aEFoae A MAGIs'mATE Pen secmon 321 analon 822 0F THE PENAL cons. DEFENDANT.D om mo NOT HEQUEST APPEARANCE BEFORE A MAGISTRATE. W meagre SIGNATuae PHONE 3 OFFICER Stemwas fl BADGE no. PHONE u [HAVE BEEN P 11180 A 1'0 ‘ONE AND AS GIVEN RTUNITYTOCOMPLETE1W0 (2) PHONECALLS PER 851.6%5%,- DATE TU NOTE: “ _ vW I "3 7 ‘ 197464 OFFICER Slewkfuae l BADGE N0. IBARRA, PEDRO SALINAS 1018722 _w RELEASED To-OFFIceaszem‘ruae oepnamaur BADGE No. E DATE TIME flamemag 9N0macaw u eonnsmmmmea aouoAMT éAoees Don Ban DDT 010% ' nca nrs aw nor DATE 11MB RELEASE mas anoumecsmu BONDSMANIon-Ien BOND AMT BADGE» non map nor 010% Dos 075 0349 nor ‘ -' V DIslrlbullun: MWJM ' Whita-Bookln Record Canary-SHF. Record Eggsgigaifigmm W Biuew-caurts g F!nk-P.B. Er.Gigi‘yefiafi:£.4-3Bichgi G(een-Dfi.o. GOldO-COflthi copy _uJ (~- SUPERIOR COURT OF CALIFORNIA County of Santa Cruz People of the State of California vs. PEDRO IBARRA Case No. F00887 MINUTE ORDER ====================================================================== Dept.3 07/12/00 8:15 am CONFIRM PRELIMINARY EXAMINATION ======~======================================================~======== Charges: 1) 664/213(A) (l)A PC-FA, 2} 459 PC-FA, 3) 236 PC-FA 4) 236 PC-FA, 5) 136.l(C) (1) PC-FA Honorable Judge Thomas E. Kelly presiding. Clerk: J. Ruiz. Court Reporter: P. Boyd. Deputy District Attorney: J. Rosell Defendant is present with Attorney T. Salatich. Time continues to be waived. NEXT COURT DATE(S): PX appearance on 07/31/00 at 9:00 is vacated. Preliminary Examination is set for 08/07/00 at 13:30 in Dept. 3. Defendant is ordered to be personally present. CUSTODY STATUS: Defendant is remanded to the custody of the Sheriff until next appearance. Bail remains set at $100000.00. =========== MINUTE ORDER END/ cak.============= ,~-- SUPERIOR COURT OF CALIFORNIA County of Santa Cruz People of the State of California vs. PEDRO IBARRA Case No, F0O887 MINUTE ORDER ==========================================================~=========== Dept,3 07/10/00 8:15 am APPEARANCE OF COUNSEL ====================~==================-============================== Charges: 1) 664/213(A)(l)A PC-FA, 2) 459 PC-FA, 3) 236 PC-FA 4) 236 PC-FA, 5) 136,l(C)(l) PC-FA ---------------------------------------------------------------------- Honorable Judge Thomas E, Kelly presiding. Clerk: C. Kirby. Court Reporter: P. Boyd. Deputy District Attorney: J. Rosell Defendant is present with Attorney T. Salatich. NEXT COURT DATE(S): case is set for 07/12/00 at 8:15 in Dept. 3 for Confirmation of Preliminary Examination. Defendant is ordered to be personally present. CUSTODY STATUS: Defendant is remanded to the custody of the Sheriff until next appearance. Bail remains set at $100000.00. ----------- MINUTE ORDER END/ cak ============= SUPERIOR COURT OF CALIFORNIA County of Santa Cruz People of the State of California vs. PEDRO IBARRA Case No. F00887 MINUTE ORDER =-------========================================~==;================-= Dept.3 07/06/00 8:15 am SET -------.-----------------------=- ----------=====-===---===---====-==== Charges: 1) 664/213(A) (l}A PC-FA, 2) 459 PC-FA, 3) 236 PC-FA 4) 236 PC-F A, 5) 136 .1 (G) (1) PC-F A Honorable Judge Thomas E. Kelly presiding. Clerk: J. Ruiz. Court RepoFter: A. Allen. Deputy District Attorney: J. Rosell Defendant is present without counsel. Defendant is to obtain counsel. Defendant waives time. Motion to increase bail heard. Motion is denied. NEXT COURT DATE{S): Case set for 07/10/00 at 8:15 in Dept. 3 for Appearance of Counsel. Preliminary Examination is set for 07/31/00 at 9:00 in Dept. 3. Defendant is ordered to be personally present. CUSTODY STATUS: Defendant is remanded to the custody of the Sheriff until next appearance. Bail remains set at $100000.00. ----------- MINUTE ORDER END/"jr ============= r SUPERIOR COURT OF CALIFORNIA County of Santa Cruz People of the State of California vs. PEDRO IBARRA case No. F00887 MINUTE ORDER ==---==-====~=.======================================================= Dept.3 06/19/00 8:15 am ARRAIGNMENT ==---=--============================================================== Charges: 1) 664/213(A) {l)A PC-FA, 2} 459 PC-FA, 3) 236 PC-FA 4) 236 PC-FA, 5) 136,l{C) (1) PC-FA Honorable Judge Thomas E. Kelly presiding. Clerk: C. Davey. Court Reporter: A. Allen. Deputy District Attorney: D. Wong Defendant is present Public Defender is appointed. Public Defender Azevedo is present. Formal reading of complaint and advisement of Constitutional Rights are waived. Copy of complaint is provided to defendant/counsel Defendant pleads NOT GUILTY to all counts. Time is not waived. Last day: 07/03/00. NEXT COURT DATE(S): Preliminary Examination is set for 07/03/00 at 9:00 in Dept. 3. Defendant is ordered to be personally present. CUSTODY STATUS: Defendant is remanded to the custody of the Sheriff until next appearance. Bail remains set at $100000.00. ----------- MINUTE ORDER END/ cak ============= SUPERIOR COURT OF CALIFORNIA County of Santa Cruz People of the State of California vs. PEDRO IBARRA Case No. F00887 MINUTE ORDER ====================================================================== Dept.3 07/03/00 9:00 am PRELIMINARY EXAMINATION ====================================================================== Charges: l) 664/213(A) (l)A PC-FA, 2) 459 PC-FA, 3) 236 PC-FA 4) 236 PC-FA, 5) 136.l(C) (1) PC-FA Honorable Judge Thomas E. Kelly presiding. Clerk: J. Ruiz. Court Reporter: L. Miramontes. Deputy District Attorney: D. Wong Defendant is present with Public Defender delaPena. Public Defender declares conflict. Public Defender is relieved. Defendant is to obtain counsel. If private counsel not present at next court date court to appoint alternate public defender. Defendant waives time {10 days). NEXT COURT DATE(S): Case is calendared for 07/06/00 at 8:15 in Dept. 3 for setting. Defendant is ordered to be personally present. CUSTODY STATUS: Defendant is remanded to the custody of the Sheriff until next appearance. Bail remains set at $100000.00. ----------- MINUTE ORDER END/ jr _\ __________ _ .• ' 14. 15 16 17! 18 19 20. 21 22 23‘ 24 25_ 26 27' 28 RONALD L. RUIZ, DISTRICT ATTORNEY OOJUE I rdCOUNTY GOVERNMENT CENTER 0 I 57 701 OCEAN STREET, Room zoo CILfiEQ-R-c>~h-~ . SANTA CRuz, CALIFORNIA 95060 Cl~_fl TELEPHONE: (831) 454-2400 AmTORNEYS FOR THE PEOPLE SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CRUZ THE PEOPLE OF THE STATE 0F CALIFORNIA, ) I ) Plaintiff, ) Case Nb. JEEiC&SDEEEj? vs. ) ) COMPLAINT ~- CRIMINAL PEDRO IBARRA ) «11 )\Nv Faxvab¢to §§F:::\A ) Date: . 06/19/00$H§TCNUIO 9' ) Time: 03:15 A.M. ) Dept: ' Defendant (s) , ) ' Event : ARRE a Ronald L. Ruiz, District Attorney of the County of Santa Cruz, State of California, accuses PEDRO IBARRA of the following crime(s) committed in the County of Santa Cruz, State of Califor- nia: _ COUNT 01 A Violation of section 664/211 of the Penéi'Codeflaffltfie‘ State of.California, a felony committed on or about June 15,;2000 in that at said time and place the above named defendant(s) aid unlawfully and by means of force and fear attempt to take per- sohal property from the person, possession, and imméaiate 5' presence of SUZI GARCIA, and said offensé was perpetrated infan inhabited dwelling, trailer coach and inhabited portion'of'a bfiilding. It is further alleged, pursuant to Penal Code section 213(a)(1)(a), that the above offense was committed by the defend- 10 11 12. 13 l4 15 16 l7. 18 19 20 21 22 23! 24 25 26 27:: 28 ént who voluntarily acted in concert and entered a structure described in that section. COUNT 02 A Violation of section 459 of the Penal Code of the State of California, a felony committed on or about June 15, 2000 in that at said time and place the above named defendant(s) did unlawfully enter an inhabited dwélling house and trailer coach and inhabited portion of a building occupied by SUZI GARCIA, with the intent to commit larceny and any felony. "NOTICE: The above offense is a serious felony within‘the_meaning of Penal Code Sec- tion 1192.7(c)." It is further alleged that the above offense is in violation of Penal Code section 462(a). COUNT 03 A Violation of section 236 of the Penal Code of the State of California, a felony committed on or about June 15, 2000 in that at said time and place the above named defendant(s)'did unlawffilly violate the personal liberty of SUZI GARCIA, said violation being effected by violence,-menace, fraud, and deceit. COUNT O4 A Violation of section 236 of the Penal Code of the State of California, a felony committed on or about June 15, 2000 in that at said time and place the above named defendant(s) did pnlawfully violate the personal liberty of STEPHANIE:GARCIA, said violation being effected by violence, menace, fraud, and deceit. COUNT 05 A Violation of section 136.1(C)(l) of the Penal deé of the State of California, a felony committed on or about June 15, 2000 in that at said time and place the above named defendant(s) did knowingly and maliciously do an act described in subdivisions (a) and (b) and such act was accompahied by force and an express and implied threat of force and violence upon SUZI GARCIA and a third person and the prbperty of a victim, witness and third.per- NH 10 1w 12 ’ 13 . 14 15 16 17 18 19 20 21 22 23 24. 25; 23 27 28H komxlmmthw funk son. Therefore, complainant declares under penalty of perjury that the foregoing is true and correct. Executed on June 16, 2000 at Santa Cruz, California. RONALD ‘_ L. RUIZ DI TRICT ATTORNEY ARY BRAYTO . fASSIS DIS 1c, A. . QRNEY . WPD :=-- '2“ ”L..- _ ;m, [gpfis/ BooKf'NGn SANTA CRUZ COL‘W ?SHERIFF“CORQMER ' B»: warm ‘ . BGGKING SHEET _. QAME I LAST - - . ‘ FIRST MIDDLE 'ABHESTDAIrEnms . ARResffiepomu H _ BOOKING DA§EITIME Iflafigé. PEBRU sntzwa .J.,%%. m.;.-Oé/ «x90 09% Xxuuaaaay; séxifiwoo 1101 snumssa cm: Few- tn ’ soc sacks aoo‘xmc FACILITY - I aooxmeomcea ,Qm39yna4 n1<;58..or} _ .‘ _] uhrma 37 a: n ,HZELQCKRIHGE -: HOMEAbonéss ‘ ~ . cm _ ' Pflonsw- ' aooxmawpe {:43 F’QULBEN RI! H HA T3014? 3L1. Ea} Ch ””1587W90 ?_REIS'SH APRE'"? g aAcg sex AGE DATE 015mm p.0z'e. nsiwens Licensemoalom 357MB. in_AROLEIPnom _-- .- AGENT H} SPANK" fi ?2 052‘19/“181 :Cfi ‘8‘“"2/“4'74 CG. ' ' ' Z HAIR ,Eves H‘rg wr'. _.'"_LANGUAGE'~~ ALIASIES) . ZBLK' " 33m} 1 5’35 33.370 I '~ SN.{IN(¥8; PFI’IRU T. BARRQ: $¢J..-INAS .. PEER (3 1 BARE’A} ’ SALIENTcfiAmcfemsncs .a _. EMERGENGY NAME ' ARR. AGENCY FRnNCIw :0 tannna EMERGENCY ADahéss' I Io'u cm ‘ sum PHONEfl ?6883. f"? Aanasrms OFFICER _ _ ' Bum. _ .. 'L'ocATidN 6% A5953f 3:55 HR? 1" LANE: ‘ Clix} [I CHAnéss WAéRkfiT a ' nssuriqe AEERCY RIGHT TO APPEAR BEFORE A MAGISTRATE PER SECTION 821 a_nleR 822 - 4”... - - . HATEENQILLH5.x; g OCCUPATION " ' EMPLOYER Aooasss . .cm' _, 51MB “TufirNT ..... , , .. _.m h, . f. H ‘ . - cgnge‘esig 5 v . _ WARRANT» :sévmeaeeuov BAIL" nes- ‘ 3.13,.719359 Bari; ENCLEK‘Bf-I PER TENTS . . ' -- ,, '33I'FEL.; l .10000U ' 1 ' CHAhéé ' .L *‘ ' ' . I I whammy ' ISSOIBJG'AGENC9 ' ' aAiL aés ‘ .CHA‘il-‘ce'ss- -g..,.:lr‘, fl" I WARéANTu‘ :éSUINGAééch ‘ BA'IL' ' 'Re's gé.‘ 2'3. -- (‘7 " CHAHGES 13§U ‘4' ' WARRANTH issumG AGENCY~ w BAIL Res ‘ - tn .0134? :15; _ _'_.., '. '. 19".." mt“... tn-. -. .. . . - .-~ CHARGE filmkyg a WARRANH tSSUINGAGENgY BAIL Hes - "5534' ‘ .o-w- - .. . 3.5:". ' ‘ :.. .: . vvvvvvv . . CHAHGESt.4:3: . ‘ _‘ v -~ . WAaRANTu issuING AGENCY - BAH. Res . ESH-FD 7"”) : . ‘ .v .: CHARGES “V c3 WARRANTN issumeAsencv BAIL. Res - ‘n (O ca' - . . . A p ~ Z3 ckméeés wAriaAiQTu' I J H Iééu:kfiA¢éN69' LC 44““ "- ‘ “"" 5;; i fats DEFENDANT HA5 Beau msonmsb 0F His: a 1_' =of= THE PENN. cone. ~qEFENoANT.l mo DID NOT REQUESI a’fipe'AéANca aer-‘an A'MnetsfaATE. . ’-lNM5Tes:GNAmRE I PfiONEfi OFHCER SIGNATURE BADGE «o. mom's g IIHAveawomw %A56W/muumrocompmemomPnonecALLspeaasmPc _- ‘if _ -_- $x {gal M. DATE ' .INMATEQ Tun“ _. . ,. _ v - ' 'Pb «I Néfé . _ .. _ . ,j'f 2W - ' . .. i‘ ' 197464 f' _- OFFICERSIGNAfunE 7 BADGENO -IBWPEDROSALINAS _: ~~ - -. '» -' ‘ “ ' 1018122 ----'-- ‘HELEASEDTOOFFacsasaGNAwne DEPARTMENT > aADGENo. _ Iv -. ; '_ DATE nus .ngLEAse Type . 8ND waaceian BONDSMANIOTHER BONDAW . BADGE» .-' ' Don nao DDT nioés~ . H : . -. nee uTs 0949 nor .g ;: .__-.-._.=,.-;‘_._-.- DATE TIME RELEASE TYPE , :BNDmaecewru aomsmmomen .-.-..;-_ quDAMT smear -- Boa 030 DDT 0’10 - _ ~~ ‘:.‘. . v juce m'rs E1349-not , . H’ELEASING omce‘fi my? - DET-SHF-013A (8-83) -couamsco§y ’ Dfatrihufldn:_ ” MTIJM :..: ‘25-. .- 3Wnite'w-Bo'oking R‘epord Canary-SHF Record '. _ ‘Blué-C'ourls ' ~'Green-D;A.0. Plnk-P R 'Gold«ContraI copy STATE V I up“ t" 1N THE MUNICIPAL COURT OF SANTA CRUZ COUNTY JUDICML DISTRICT .COUNTY OF SANTA CRUZ, STATE OF CAUFORNIA EQUEST FOR SETTING BAIL flaw fi/uxn- zm4~ 2747/5 1;! 25m ""‘Na‘me'b'f def'enda'nt - ' Pate 0f bOOking Time g L‘ . C..- «32g- ' E;- '2!"yw 2/” f 4925 175. MMM/ézw 953?: v~- .. Address G, - 41-5}: £6 5/52 Ziéflzmm, magma). 2: =?ij Charge - ‘53 "fl: a.- Brief summary of alleged crime: £1;fo $4; flue Aéuéj,flaw 1/ ' 722: '1 [4%, flxxfl/M/Abm‘x WWt-a V 3’ma flywflzécv flat”. Ba?! on Bail Schedule: $ 25w0. RB§UESted Bail: $ /fl0:. 006. Reason forW orEmmi! or O.R._//.472Mx @6/ wpm (cross out one)Jmc/é xx: aux; m: fl// fix: fi/avb-{m 72w 5:2,}// @fi/aflér/ 5/5525 flaredi“ x97“ 772%“ 7/7“: fl/W flayflr/aA/v Application r‘nade by: Arresting agency /Booking agency Under pénalty of perjury, l declare therforgoing to be true and correct to my best information and belief. Dated: (9} rgloo . “Jog N Em NW; ' Declarant Order: Bail is set at $ {00 Mg) until further order of court by Judge \/'0 NT 5 Nan’1e of judge at, £2533- o‘clock. by 3’7 Eiiflnoga Officer of receiving order Original to be filed with Cierk of the Court Fax Call Report HP LaserJet Flow MFP M630 Page 1 Fax Header Information Litt}er (925) 946-9809 Aug/13/2019 12:08:42 PM Job Date/Time - Type Identi f1 cation Duration Pages Resu1t 451 Aug/13/2019 11:38:23 AM ‘ Send 915104331001 30:14 69 Success Augl13I2019 12:08:43 P_M English (United States) Exhibit B hibit Emp!oymrnt & l<1bor Lw: Solull/Jns Worldwkk• September 10, 2019 VIA U.S. MAIL Shawn D. Tillis, Esq. Winer, Burritt, & Tillis, LLP 1999 Harrison Street, Suite 600 Oakland, CA 94612 Re: Pedro Ibarra v. Payactiv, Inc. Santa Clara County Superior Court Case No. 19cv350776 Dear Mr. Tillis: Littler Mendelson, PC Treat Towers 1255 Treat Boulevard Suite 600 Walnut Creek, CA 94597 Chad D. Greeson 925.927.4507 direct 925.932.2468 main 925.940.9535 fax cgreeson@littler.com This letter confirms our telephone call earlier today where I raised additional concerns regarding defects in the operative Complaint. Below is a summary of these concerns: First, Ajit Medhekar is not a proper defendant because there are no specific allegations against him in the Complaint. In addition, Mr. Medhekar is not named as a defendant in the DFEH charge, and the DFEH charge was not filed within the one year limitations period following the adverse employment action. Mr. Medhekar was not a party to any tolling agreement. Therefore, any FEHA claims against him are now time barred. Second, the retaliation cause of action under Labor Code section 1102.5 is defective. There are no facts that demonstrate a close proximity between Plaintiff's alleged disclosures and the adverse employment action. The disclosures made in November 2017 were not protected disclosures because they did not differ in any material respect from the disclosures made 11in approximately" 2016. Therefore, the Complaint fails to allege sufficient facts to establish causation for a prima fade case of retaliation. Third, the cause of action for failure to reasonably accommodate was not included in Plaintiff's DFEH complaint. This is a separate cause of action under FEHA that requires administrative exhaustion. Due to the passage of time, it can no longer be amended. The cause of action for failure to engage in a good faith interactive process fails for similar reasons. Fourth, the race harassment claims under FEHA against all of the individual defendants is time barred by the statute of limitations. Harassment under FEHA requires administrative exhaustion, and a DFEH complaint was not filed within 1 year of the alleged adverse employment action on 12/4/17. The individual defendants were not parties to any tolling agreement, and there are no allegations in the complaint to excuse complying with FEHA's administrative exhaustion requirements. Shawn D. Tillis, Esq. September 10, 2019 Page 2 Fifth, the FEHA retaliation cause of action fails to allege sufficient facts, either in the DFEH complaint or the civil complaint, to establish causation in support of a prima fade case. Thus, the claim is now time barred under the statutes of limitation, as the DFEH complaint can no longer be amended. Finally, the wrongful termination cause of action is derivative of the other defective causes of action. Accordingly, this claim also fails. During our call you disagreed with our concerns summarized above and in our previous letter of August 13, 2019. You refused to amend the Complaint. As noted above, there is no conceivable basis for including claims that are indisputably time barred by the statutes of limitation and your client's failure to exhaust his administrative remedies. Specifically, this includes the causes of action for failure to accommodate, failure to engage in the interactive process, and race-based harassment under FEHA against the individual defendants. These three claims are frivolous, and one can only concluded that you have included them in bad faith to annoy, harass, and cause needless expense and delay. Accordingly, unless you reconsider your position with respect to these three claims in particular, we will be seeking all sanctions permissible, including but not limited to those available under Code of Civil Procedure section 128.5 and 128.7. I would encourage you to reconsider your position. However, if I do not hear back from you before noon tomorrow, I will have no choice but to finalize our moving papers in support of a demurrer, a motion to strike, and a request for sanctions. Sincerely, ~1).~ Chad D. Greeson Of Counsel CDG/mam 4849-5873-6549.1081778.1004 Exhibit C xhibit TOLLING AGREEMENT Whereas, Pedro Ibarra ("Plaintiff') is a former employee of PayActiv, Inc. ("Pay Activ"); Whereas, Plaintiff has executed a retainer agreement to be represented by Sanford Heisler Sharp, LLP; Whereas, Plaintiff has asserted employment claims against Pay Activ; Whereas, Pay Activ disputes that Plaintiff has any valid employment claims against PayActiv; Whereas, Plaintiff requested a Tolling Agreement ("Agreement") on October I 9, 2018 to engage in settlement negotiations and mediate the dispute before proceeding with and/or filing fmther legal action; Whereas, Plaintiff and Pay Activ seek to engage in confidential mediation to discuss the potential resolution of any employment claims between Plaintiff and PayActiv; Wherefore, this Agreement is made and entered into by and between Plaintiff and PayActiv (collectively, the "Parties"). The Parties agree as follows: 1. Purpose: The Parties enter into this Agreement to pursue discussions in advance of proceeding with any litigation regarding Plaintiff's employment-related claims and Pay Activ's defenses. The Parties fmther enter into this Agreement to preserve the rights of the respective Parties as they existed on October 25, 2018. 2. Covered Claims: Plaintiff asserts that he has or may have claims against Pay Activ arising out of or related to his employment with Pay Activ as of the date of the execution of this Agreement, including, but not limited to, claims under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2 and 42 U .S.C. § 2000e-3; 42 U .S.C. § 1981; the California Fair Employment and Housing Act, and other federal and state laws, including common law (collectively, "Covered Claims"). Covered Claims do not include claims arising directly out of Plaintiff's status as a shareholder of PayActiv. 3. Tolling Period: The time during which this Agreement tolls the statutes of limitation and statutes of repose with respect to the Covered Claims defined in paragraph 2 is called the "Tolling Period." The Tolling Period shall be deemed to have commenced on October 25, 2018 and shall continue until two weeks (14 days) after either party notifies the other party in writing that it intends to end the tolling period. Upon the effective date of the termination of the Tolling Period, the applicable deadlines, statutes of limitations, and statutes of repose tolled in paragraph 2 shall resume their running. Pagel of 3 a. Plaintiff expressly reserves all rights, claims, and causes of action (as defined in Covered Claims) against PayActiv that were not barred or otherwise extinguished as of October 25, 2018. Any statute of limitations period applicable to the Covered Claims shall be deemed tolled during the Tolling Period and shall exclude the Tolling Period from all computations for the filing of any administrative charge, complaint, and/or civil lawsuit. To the extent permissible by law, this Agreement also tolls the statutes of limitations for the filing of administrative charges, civil lawsuits, and demands for arbitration for all such claims. b. The applicable statutes of limitations relating to any defenses and counterclaims, including statutes of limitations and repose, contractual time limitations, laches, and any and all other time-related defenses and bars, which may be asserted by PayActiv against Plaintiff shall be deemed tolled during the Tolling Period. c. PayActiv shall not invoke any statutes of limitations with respect to the Tolling Period as part of a defense to the Covered Claims. Pay Activ shall not argue that Plaintiff failed to cooperate with government agencies or failed to exhaust administrative remedies for any Covered Claims with respect to the Tolling Period. d. Plaintiff shall not invoke any statutes of limitations with respect to the Tolling Period in response to any affirmative defenses proffered by Pay Activ in defending the Covered Claims or with respect to any counterclaims. 4. No Proceedings: Plaintiff agrees not to commence any proceedings or seek to lift any stay of any previously filed proceedings against Pay Activ with respect to Covered Claims during the Tolling Period. This provision will afford the Parties an opportunity to carefully consider info1mation they learn through the settlement negotiation and potential mediation process. 5. No Admission or Limitation on Defense: No admission of liability is expressed or implied by this Agreement. Further, except as delineated herein, the Parties do not waive their rights to assert as a defense that any time period prescribed by the statute of limitations (either as set by statute or by a contractual limitation) or the doctrine of !aches has expired before the beginning of the Tolling Period, and that this Agreement shall not revive any claims that had already become time-barred prior to the Tolling Period. Further, the Parties agree that this Agreement does not otherwise limit, impact, or affect the Parties' abilities to defend against the adverse party's claims, counterclaims, or affirmative defenses. 6. Limitations on Admissibility and Disclosure: This Agreement shall not be admissible in any proceeding in any court, agency, or other forum except for the purpose of enforcing this Agreement or if the need arises to declare the existence and parameters of the Agreement. Copies of this Agreement shall not be publicized or distributed to anyone during the Tolling Period, unless disclosure is required to enforce this Agreement. 7. Binding Effect: This Agreement shall bind Plaintiff and his successors-in-interest. This Agreement shall bind PayActiv. Page 2 of 3 8. Governing Law: This Agreement shall be governed in all respeCts by the laws of the State 0f California in effect at the time 0f its execution, without regard to the conflicts o‘f law rules of that state or any other state. 9. Effective Date: This Agreement shall take effect as soon as the Parties’ counsel have signed and dated this Agreement. 10. Counterparts: The Parties agree t0 accept facsimile transmissions and PDF email scans of executed copies of this Agreement in counterparts as legally binding on all Parties. By: Edward Chapin Sanford Heisler Sharp, LLP 655 West Broadway, Suite 1700 San Diego, CA 92101 echapin@sanfordheislemom Attorneyfor Pr Actixh Attorneyfor Plaintiff Dated: NoVember ‘3’ , 2018 Dated: November ___, 201 8 Page 3 of 3