Declaration In Support

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

\OOOQONUI-h 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LITTLER MENDELSON. P.C. heal Iowan: 1255 Tree: Boule-vavd Suile 600 Walnul Creek. CA 9459.7 925.932.2458 1QCV350776 Santa Clara - Civil WILLIAM HAYS WEISSMAN, Bar No. 178976 wweissman@littler.com CHAD D. GREESON, Bar No. 251928 cgreeson@littler.com LITTLER MENDELSON, P.C. Treat Towers 1255 Treat Boulevard Suite 600 Walnut Creek, CA 94597 Telephone: 925.932.2468 Fax No.: 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 No. 19CV350776 Plaintiff, ASSIGNED FOR ALL PURPOSES TO JUDGE PIERCE, DEPT. 2 V. DECLARATION OF CHAD D. GREESON IN Patricia Hernand Electronically Filed by Superior Court of CA, County of Santa Clara, on 10/23/2019 4:20 PM Reviewed By: Patricia Hernandez Case #1 9CV350776 Envelope: 3558586 PAYACTIV, INC., a Delaware Corporation, SAFWAN SHAH; SOHAIL ASLAM; IJAZ ANWAR; AJIT MEDHEKAR; and DOES 1 - 25, inclusive, SUPPORT OF DEFENDANTS’ MOTION FOR SANCTIONS DATE: January 7, 2020 TIME: 9:00 am. Defendants. DEPT. 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 fdrth below is based on my own personal knowledge, and if called t0 testify as a witness to its contents, I could and would be able to d0 so competently. /// /// Complaint Filed: July 2, 2019 GZ DECLARATION OF CHAD D. GREESON ISO DEFENDANTS’ MOTION FOR SANCTIONS I 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 subj ect 3 to a demurrer or motion to strike. Defendants’ counsel also identified the basis of the deficiencies in the 4 Complaint with legal support. A true and correct copy 0f 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, Plaintiff’s counsel, on September 4, 201 9. 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 further met and conferred with Mr. Tills for Plaintiff on September 14 10, 2019, to ascertain whether Plaintiff’s counsel would agree to amend. Defendants’ counsel raised a 15 number of additional concerns regarding deficiencies in the Complaint along with legal support. For 16 example, Defendants’ counsel advised Plaintiffs’ counsel that Plaintiff failed to exhaust his 17 administrative remedies and file a DFEH complaint against Defendants Shah, Aslam, Anwar, and 18 Medhekar for racial harassment within one year ofthe alleged adverse employment action. Plaintiffwas 19 terminated on December 4, 2017, and he failed to file a DFEH complaint until February 12, 2019. 20 Defendants’ counsel notified Plaintiffs’ counsel that the claim was barred for failure to comply with the 21 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 to 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 2019. Thus, the claims are now time-barred by the statutes of limitation. Nevertheless, Plaintiff’s 27 I counsel refused to amend. 28 7. After the call on September 10, 2019, Defendants’ counsel emailed a letter t0 Plaintiffs’ "m5“ ?‘Ei‘RELSW P-°- 2.tea ant: [255 Tigal Bouleeeeed 5 DECLARATION 0F CHAD D. GREESON Iso DEFENDANTS’ MOTION FOR SANCTIONS M \OOOQONKIIAU.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -ITTLER MENDELSON. P.C. heal 1 aaaaa E255 heal éoulevatd i 600Su te Walnut Cleek‘ CA 94591 9253321438 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 t0 accommodate and failure t0 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 refiJsal to amend 0r dismiss these defective claims. A true and correct copy of this correspondence is attached as Exhibit B. 8. As ofnoon on September 1 1, 201 9, Mr. Tillis refused to amend the Complaint, prompting Defendants to file a demurrer, motion to strike, and this motion for sanctions. 9. Previously, Plaintiff Pedro Ibarra and PayActi-v entered into a tolling agreement (“Agreement”), effective from October 25, 2018 until the date Plaintiff submitted his DFEH complaint on February 12, 2019--i.e., a period of 1 15 days. A true and correct copy ofthis Agreement is attached to this declaration as Exhibit C. As evident from the face of the Agreement, the only parties to 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. 10. On September 12, 20 1 9, notice ofthe motion and the motion for sanctions along with the supporting papers including this declaration will be served by mail on Plaintiff’s counsel. I declare under penalty of perjury under the laws 0f the State 0f California that the foregoing is true and correct. Executed on this 12th day of September, 2019 in Walnut Creek, California. Dated: September 12, 2019 WILLIAM HAYS WEISSMAN CHAD D. GREESON LITTLER MENDELSON, P.C. Attorneys for Defendants SOHAIL ASLAM, IJAZ ANWAR, AJIT MEDHEKAR, PAYACTIV, INC, AND SAFWAN SHAH 4842-8420-7081 08 I 778. 1004 3. DECLARATION OF CHAD D. GREESON ISO DEFENDANTS’ MOTION FOR SANCTIONS Exhibit A xhibit LVttzer‘ FACSIMILE COVER SHEET August 13, 2019 To: John D. Winer; Shawn D. Tillis Fax: . 510.433.1001 Winer. Burritt & Tinis, LLP Fax #(s) verified before sending (initial): From: William Hays Weissman . Fax: 925.891.2551 Length, inciuding this cover letter: 69 Pages lf you do not receive ali pages, please call Sender‘s Phone Number. Message: Phone: Phone: 925.927.4545 CONFIDENTIALITY- The information contained in this fax message is intended only for the persona! and confidential use of the designated recipient(s) named above. This message is a communication from attorneys or their agents relating to pending legal 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 responsible 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 telephone and return the original message to us by mail. Thank you. Transmittal Completed: am l pm Client Code: Littler Mendelson. P.C. User Number: 2179 Treat Towers. 1255 Treat Boulevard. Suite 600, Walnut Creek, CA 94597 Tel: 925.932.2468 Fax: 925.946.9899 www.iittler.com Littler Employrncnl & Llbor Llv, Solulions 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 Willlam Hays Weissman 925.927.4545 direct 925.932.2468 main 925.891.2551 fax wwelssman@littler.com Meet and Confer Re Sufficiency of Complaint and Settlement Inquiry Dear Mr. Winer and Mr. TIiiis: 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 "[t]hroughout the years we have had many conversations regarding the legality of certain areas of our business model." He then asserts "[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 whistleblower 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 "per 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." The complaint states he suffered "stress." (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 empioyment 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 Heisler Sharp, LLP withdrew representation immediateiy after mediation, we believe it is because Mr. lbarra lied to his attorneys about his criminal record. Mr. lbarra’s criminal record is attached as Exhibit 4 for your convenience. On February 12, 2019, Mr. lbarra apparentiy retained the Velez Law Firm in Roseville, California, to file a DFEH complaint for him. Thereafter Mr. Velez does not appear to have further represented Mr. lbarra. We bring these facts to your attention in case you do not have the full background on this case given you are now Mr. lbarra’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 complaint. No actionable claim is pied against Ajit 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 his November 17, 2017, email and responding that PayActiv's counsel would address his concerns. The FEHA prohibits harassment of an empioyee based on ”race, religious creed, coior, national origin, ancestry, physica! disability, mental 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 prevaii on a claim for racial harassment, the plaintiff must show that: (1) plaintiff 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 psychologica! well- being; and (4) that there is a basis for employer liabiiity. Thompson v. City of Monrovia, 186 Cal.App.4th 860, 876 (2010); Fisher v. San Pedro Peninsula Hospital, 214 Cal.App.3d 590, 608 (1989). Notably, a claim 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 quafifies as hostile. or abusive to employees because of their race. See Lyle v. Warner Brothers Television Productions, 38 Cal.4th 264, 278~279 (2006). Here, not a single fact supports a claim that Mr. Medhekar individually harassed Mr. lbarra on account of his race. There §s no mention of any statements or written documents such as emails by Mr. Medhekar directed at Mr. lbarra. The only reference to a communication, an email indicating receipt of Mr. ibarra’s email and that the Board takes his concerns seriously, cannot support a racial harassment claim. John D. Winer Shawn D. Tillis August 13, 2019 Page 5 To these facts we add the fact that Mr. Medhekar is not mentioned in the DFEH complaint, and therefore Mr. ibarra 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 compiaint has expired, and therefore no raciai related claims could be alleged against him. Therefore, Mr. Ibarra's ciaim 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 Cal.4th 1035, 1051 (2009) (internal quotations and citations omitted). ibarra must establish that Mr. Medhekar's conduct was "so extreme and outrageous as to go beyond aU possible bounds of decency, and to be regarded as atrocious, and utterly intolerabte in a civilized society.” Alcorn v. Anbro Eng., Inc, 2 CaL3d 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 3n with the realization that injury wfll 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 aileged in the complaint that demonstrate anything remotely necessary to support an intentional infliction of emotional distress cause of action. As such, Mr. Ibarra’s cause of action for intentional infliction of emotional distress against Mr. Medhekar should also be stricken from the compiaint. Eleventh cause of action for iniunctive and declaratory relief is defective Mr. lbarra 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 800-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 abiiity to extend ”credit" and requirements to make disclosures. On their face none of these requests appear applicable to any of the individual defendants, and rather appear directed soleiy to PayActiv. As such, the individual defendants should be stricken from the eleventh cause of action. Irrespective, California has enacted a deciaratory relief act. Cat. Code Civ. Proc., § 1060. Generally, the elements of deciaratory relief 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. Cardeilin/ v. Casey, 181 Cal.App.3d 389, 395 (1986). Federal law is simiiar. See 28 U.S.C. § 2201; Medlmmune, Inc. v. Genentech, Ina, 549 U.S. 118, 126 (2007). John D. Winer Shawn D. Tillis August 13, 2019 Page 6 Here, there is no alIegation 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 eleventh 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 Federal Regulations (see complaint paragraph 121), there are no allegations in the complaint ofany actual controversy between PayActiv and Mr. Ibarra. As such, it is not dear that he has standing to seek such relief, is not also not properly pled as an actual cause of action. Therefore, we request that the eteventh cause ofaction be dropped from the complaint, but at a minimum the individual defendants and paragraphs 1210) through 121(r) be struck from the complaint. First‘cause of action for whistleblower violation is defective Labor Code section 1102.5(a) prevents an employer from establishing a rule, regulation or policy that prohibits an employee from reporting potential violations of law. Section 1102.5(b) prohibits an empioyer or person acting on behalf of an employer from retaliating against the employee "because the employer believes that the employee disclosed or may disclose information” relating to a violation of law. Section 1102.5(c) prohibits an employer from retaliating against an employee who refuses to participate in iilegal activity. Section 1102.5(d) protects emponees who engage En any of the activities under subsections (a), (b) or (c). In order to establish a violation, lbarra must first establish that he ”disclosed" to defendants information relating to illegal activity. He must then establish that defendants "retaliated” against him because he disclosed illegal activity to them (because there are no facts demonstrating that he ever reported this ”illegal” activity to any government agency). If he meets those burdens, then defendants may establish a legitimate non-discriminatory business reason for lbarra’s termination. Hager v. County of Los Angeles, 228 Cal.App.4th 1538, 1540 (2014). ”[T]he report of information that was aiready 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 "disclosure" and federal authorities, the court explains: [An] employee’s report to the empioyee’s supervisor about the supervisor’s own wrongdoing is not a "disclosure” and £5 not protected whistieblowing activity, because the emptoyer already knows about his or her wrongdoing. Moreover, criticism delivered 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 (internal 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, orthat 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. It 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 of absence 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. It 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 disabilitv are defective To succeed on his disability claims, lbarra 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 Cai.App.4th 864, 886 (2007); see also Green v. State of COL, 42 Cal.4th 254, 257, 260 (2007). 1n addition, in order to prevail on a claim for failure to accommodate under Government Code section 12940(m), ibarra 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 COL, 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 Cal., 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, orthat the stress was work related. He fails to ailege that he requested an accommodation, and if so, when and of what kind. Without such facts he cannot carry his burden of pleading causes of action relating to disabilitydiscrimination, failure to accommodate or faflure 'to engage in the interactive process. Moreover, his DFEH complaint falsely claims that Mr. Ibarra "informed his superiors including the CEO and COOS of his physical disability.” There is no documentation to support that any ”physical disabiiity” was disclosed to PayActiv In addition, even if Mr. Ibarra could plead such causes of action, the'Califomia 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 availabie only in proceedings before the Workers’ Compensation Appeals Board. See Cat. Lab. Code, §§ 3602(a), 5300. Subject to onfy 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 empioyment,” including menta! injuries. Cal. Lab. Code, §§ 3600-3602, 5300; Shoemaker v. Myers, 52 Cal.3d. 1, 16, 18 (1990; For example, the California Supreme Court has held that daims for intentional! infliction of emotional distress (IIED) related to an employee’s termination, and even for aIJeged whistleblower retaliation like that alteged 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 NED allegedly suffered as a result of employer’s whistleblower retaliation]; Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, 24 Cal.4th 800, 814-815 (2001) [emotional distress allegedly caused by empioyer's abusive conduct during termination process held ”coliateral to or derivative of a compensable 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 employeris actions which are a normal part of the employment relationship, such as demotions, promotions, criticism of work practices”}.) An employee cannot "avoid the exciusive remedy provisions of the Labor Code by characterizing the John D. Winer Shawn D. Tiliis August 13, 2019 Page 9 emptoyer’s decisions as manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance.” Cole, 43 Cal.3d at 160. Unless Mr. lbarra choses to now make up facts that are untruthful, there is simply no aliegations that couid be made to support these claims. Even if they survive a demurrer, he will iose on summary judgment, and if he seeks to fabricate evidence now PayActiv wilt 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 example, it claims retaliation under the FMLA and CFRA even though these laws never applied to PayActiv because it only had 18 employees at the t§me of the alleged conduct. Thus, these claims are not even actionable. In addition, the Government Code states that a DFEH complaint "shall set forth the particulars” of the practices alleged to have violated FEHA. Gov. Code § 12960(b). In addition, the DFEH complaint ”shall . . .contain other information as may be required by the department [i.e., the DFEH3.” By regulation adopted in 2011, the DFEH states that an administrative complaint filed to obtain an immediate right-to-sue letter ”shall” contain, in addition to other requirements, ”a description of the aileged act or acts of discrimination, harassment or retatiation; and [1 the date or dates each alleged act of discrimination, harassment or retaliation occurred, including the date of the last or most recent alleged 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 explanafion of the date of the last or most recent alleged act is set forth. This makes it impossible to establish that the DFEH was timely filed. At best the complaint appears to allege that conduct that occurred in 2016 around the time of the presidentiai election, but no other details are provided. Based on that time frame the DFEH complaint would be untimely, and therefore Mr. Ibarra’s race harassment ctaim could not stand. As such, his claims would be time barred. In addition, the seventh cause of action for failure to prevent racial harassment or race discrimination is also defective. E.g., Veronese v. Lucasfilm Ltd., supra, 212 Cal.App.4th at 28; Trujillo v. North County Transit Dist, supra, 63 Cal.App.4th at 286.) The DFEH compiaint 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 § 1296000); 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 FIRMWI ‘Lfiéémazaécéifi 1mm A. inqmga'eammm ,. x 3‘ 9934118 ' Fan co, m‘UseONLY ~._ pas 01s . ‘roncoflnrusaomv ‘ - -. ‘ - ....... EXHIBIT 1 HI I i l2! .5, lg: 4‘ "sgyl: I :2! @W A; EXHIBIT 2 HI I Weissman. William Hays From: Pedro lbarra Sent: Friday, November 24, 2017 9:48 AM To: ' Weissman. William Hays Subject: I Re: Your email re PayActiv Attachments: W8Execution2017.pptx httn://assemb1v.ca.gov/dailvfile 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 z'n it. ” -- Leo Tolstoy Sent from my iPhone On Nov 24, 2017, at 6:44 AM, Weissman, William Hays wrote: I will 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 from here. ' William Hays Weissman Littler 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 (I 1/24/2017) at 9 am PST works for me. Truly appreciate ifyou may please provide with me with points ofyour discussion and expected length of phone 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 # 83 1 ~706-1 83 8 “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 wweissmzm@lil‘tlcr.com Treat Towers, 1255 Treat Blvd. Suite 600 1 Walnut Creek, Q_A_ 94597 1 littlemom Employment & Labor Law Solutions Worldwide From: Pedro Ibarra [mailto:ibarraikev@gmai1.com1 Sent: Wednesday, November 22, 2017 8:42 AM To: Ajit Medhekar Cc: David Carlick; Kabir Misra; Weissman, William. Hays Subj eat: 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 "(12) An employer, or any person acting on behalfofthe employer, shall not retaliate against an employeefor disclosing information, t0 a person...wl1o has the authority to investigate, discover, or correct the violation or noncompliance... " as I have dutifully 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 do_ 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. Happy Holidays! Regards, Pedro “Wrong does not cease to 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 future enquiries to him directly. Best regards, Ajit Ajit Medhekar Director & Co-Founder W...m ..a “m.fiz‘ “" 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 (or authorized to receive for the recipient), please contact the sender by reply email and delete all copies of this message. Littler Mendelson, RC. is p311 of the international legal practice Littler Global, which operates worldwide through a number of separate legal entities. Please visit www.1ittler.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 (0r authorized to receive for the recipient), please contact the sender by reply email and delete all copies of this 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. Ifyou are not the intended recipient (or authorized to receive for the recipient), please contact the sender by reply email and delete all copies ofthis message. Littler Mendelson, P.C. is pan of the 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 Alerted PayActivAdvisers and investors: Email Nov. 17th, 2017 l l l Q I I i I t l Ajit Medhekar David Carlick Kabir Masa Don Peppers Amer Akhtar Saba Shiv Sanjiv Das Jeanna Abbot: Rajw La] Peter Vetblca Ajit/Baard Email" Response Nov 20, 201 “...matter is being evaiuated.” x ~ numw . -- : .vu- ~13“. ~-‘- Iv... W - hya- .vu--- - - -. _ «4’ - .-_.-> wwwrwnyn .nv l r ___ ~25. .. - ' r5; I ‘ i- z A» . ~ . ,Ma ' u i r ‘ r . A . .--. w-n v)1 , avaxwlagvb "‘bo‘fl 39w . 1A';a\.'£~.r‘;.£. , 9::Zza‘fi’gggc'fi V :2,;:I%%g.&?m$~éyép ‘ fit > 3.9 ‘ _ m Q; M 1- flfimwsz‘f'w ?rkgfl .1-V g ‘zr‘w ’ J ”a S“ . 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LMQ‘EYZ‘E 4')»: y Internal Remedy: Whistleblower Protection and Resources Email Request: Nov 22, 2017 Seeking reinstatement of position and wages foilowed by paid administrative teave pending internal and government tegulators review. l l- ? _]_ I I I I I l Am medhe’mr David Carlick Kabir Masa Don Peppers Amer Akbar Saba Shiv Sanjiv Das Jeanna Abbott Rajiv Lal Peter Verbica Response: Company Attorney Nov 22, 2017 seeking meeting. .p .1 n .- 3"», gv-v um“ ,v_. vu w- 4 r'IW-fi . -IW: “~- ”u, x.:54" " cam": '-' ~ wa ““52"“? .. m" w«v n. 3 : - c r N ?W“w ma- my 'éfizhwfigggflw' 3315»Mm? fig“ 'mfiwwc’gx “32““ Rm”! "535% gal». 3&5... ‘fiwgfimm‘? ~ {xvi $7. L%W’~‘¢§§é~v§‘f ~ W c iaquggfl’fi'ar mm‘” "‘ ‘5 r -t‘nv’ '. r - ‘ r' . I ‘ - ‘23:; av J-N“Rx“ ‘ "" 74mur NAM“ .12.. w." - a Fun.webmh:m «r&wfixfi: - ,L: .V ‘ CA.-‘WW"~».M? $..,,«~;€n . v «:15, w?“ ~58»: - , , .L‘f, ‘ . L M, : ~ ' .::.-3>~ .."d. Sift?“ w. V . ~ k 3";3’; ' _ U >v fix H ‘ r, .. l . ‘ ‘0 .. ugh .1 ‘fi, 1:1”,\wlv‘s” W ..,”p“ 3"“:v3~.~~.":w : .. ‘ . ».. ‘ . . _ ' , , , » v .- ‘ . .. ha, ‘-::$u-.»".¥w;= uw'w: F’Fézfifi32v»- 0w “m '1 ‘wtw“; .3“, External Remedy- Whistleblower will notify the following: A response and from board i5 Pursuant to Ajit's/Boards email requmd to85mm dated Nov. 20, 2017 “...matter is being evaluated.”.position. Notify GovernmentAgencies cn'os- ms Whiséleblower. CAAssembiy Members. FTC. _ https://www.consumerfinance. https://www.irs.gov/co htt .' abnkoaSSEmb! oC https://www.ftc.gov/tips- GAO‘ un'tfid States DePt- 0f Labor aov/abaut~us/bloq/the~cfpb- mpliance/whistleblowe gggyl advice/busgness. http:/(www.gao.go ’ WhistleblowefW wants-you-to-b!ow~the-whistle- r-informant-award center/privacy.and. V/mOblle/PTOdUCtS/ Fmanaa' Pmteamn Ad CFPA . on-lawbreakersz security/data-security GAO‘03‘107SR 112 U.S.c. § 5567] httpszllwwwmhistleblowersg ov/financial .._ .. M... " V“ ~35?MMXSSWTW M n... Vv mvgéiffi'wx‘mf 21'}? ~-\;~_ .q . w ..~ w; {5 112?.*Ln"r',v' "’ IMfwd wa- . ‘rREE?“ , . ‘ w X1.m 7 twin» Nocfi‘xcu. a w 1, “w." \ -.‘W, .2 “?}ew.‘ 35$...ai‘ihu‘7“ .. 92‘» '“i’fwgfv *wfixr?._‘~' ”8"; ,JJ‘ 55 . 44;; ‘2‘! WM‘. A&fia "v M;-Mgfirfioamw a -v 3-. . ‘ “:94:me ,1 wt»- ‘ ,ner. , Ma» ‘ ..,.3,t,-:.. '1 «?ffwflsrzz'kfimfi? 2‘39»???an x Vl '5“ x‘ ~' «Pm f A&va‘»! ‘we ~t~aunw' 2}? Q’Q‘Cv-r?» . Mn{h, .4214‘6323V x“. *ru’u J»?wéé-fatbzmfi x‘ » ‘ a r:I 4:,agé‘m: ifiméax EXHIBIT 3 I I STRUCTURE LAW GROUP, LLP January 29,. 20] 8 D. CLINTON WEBB. ESQ.93mm 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 Ibarm /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 of PayActiv- products as a consumer, his ownership of capital stock ofPayActiv, or otherwise: o Two million dollars, paid in 'lump sum at closing. 9 Two percent equity ownership of PayActiv, Inc.', calculated on an as-oonvefied, fiJIIy-diluted basis. Such equity ownership to be'in the form of Series A Preferred stock, having usual and customazy 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 all previously granted stock options in connection with this equity issuance. c Reinstatement of Mr. Ibarra’s full-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 favomble than previously provided to Mr. Ibarra. Such employment to be subject to a five-year contract (reverting to at~will employment thereafter), providing for full payout of the remainder of the five-year term in lump sum in the event of early termination or resignation by Mr. Ibarra for good reason. c o A seat on PayActiv’s Board of Directors. This settlement offer may be accepted in principal by returning a countersigned copy of this letter to the undersigned, bearing the signature ofau authorized agent ofPayActiv where indicated below, on or before 5pm PST on Friday, February 2, 20 18. Following the timely receipt ofa countersigned copy ofthis 1754Technology Drive, Suite 135 - San Jose. California 95110 . Tel: 408.441.7500 . Fax: 408.441.7501 . www.structurelawmm m...- m -w ~ «m_m... mum...- William Hays Weissman, Esq. Janualy 29, 201 8 Page 2 letter, the parties shall have ten calendar days to negotiate in good faith regarding definitive terms of‘ agreement regarding the 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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'. ‘ggfgfi‘aggfi uzz‘ 3f." . 1-5:: ,•''"·\ (' 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-FD, 5) 136.l(C) (1) PC-FD 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.l. 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 ------------- {F‘K m STRE! DDRESSI SUPERIOR coum 0F CALiFORMA. co"; .9 0F SANTA CRUZ 701 OCEAN STREET ‘- ran coum' assamr MAILING ADDRESS: cm AND 2:9 coua: SANTA CRUZ , CA 95060 I . amwcn NAME: hf“ \N - PEOPLE 0F THE STATE 05 CALIFORNIA [hm d Lm3 é / 1 do n .1 u“. . .g CHfl/Sl’ff PA 7mm, cm, . i DEFENDANT: FL ”(/3 /é "M {avMm c flk/ Dr:-"‘ wumw H CASE Numaea: HNGERPRINT FORM [flaw v “j INSTRUCTIONS immediétely foilowing arraignment in superior court of a defendant charged with a felony or arraignment of a defendant by a municipal courtjudge sitting as a superior court judge, the court shall require the defendant to provide a right thum'bprint on this form. In the event the defendant is convicted, this form shall be attached to the minute order reflecting the defendant's sentence and she" be permanently main- tained in the court file. 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 acceptabie). Paper smoothness should be 100-140 Sheffietd units. The form should be printed with the grain left to right. . 1.. The box to the right contains the defendant’s m right tHumbprint a other print {specify}: 2.The print was taken on (date): (0' \q ' 0D 3. The print was taken by a. Name: fibfiu [D AAW‘D b. Position: EMT“ gH’EmFF c. Badge or serial No.: “g Form Adopted bv tha Judicial Council o! Cutlfatnla FINGERPRINT FORM 95:1OQ [yew Jgnupm 1. 399,6! Pen. Code. i 992 ~·~ ~·•·-< r oUPERIOR COURT OF CALIFORNL.,, 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 ============= (-··.. ,•-, ~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. F00887 vs. ORDER FOR PLACEMENT, DELIVERY AND RETURN (Section 1203.03 PC) PEDRO IBARRA The above-named defendant having been duly convicted in the above~ named court of the following offense(s): 1) 213(A)(1)(A) PC~F,‘2)V459 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 (gféan 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 further order of the Court, the Sheriff shall return defendant, giving notice to the Clerk of the Court of defendant's: turn. Dated: 2