Removal to Federal Court

Cal. Super. - 6th Dist.December 5, 2019

1 CAROTHERS DISANTE & FREUDENBERGER LLP Teresa W. Ghali, State Bar No. 252961 2 tghali@cdflaborlaw.com M. Leah Cameron, State Bar No. 274637 3 lcameron@cdtlaborlaw.com 600 Montgomery Street, Suite 440 4 San Francisco, CA 94111 Telephone: (415) 981-3233 5 Attorneys for Defendant 6 SJBH, LLC erroneously sued as SAN JOSE BERA VIORAL HEALTHLLC 7 8 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA 11 JAMES BROGAN, ) Case No. 19cv359746 ) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CAROTHERS DiSANTE & fREOP£NB£RGER LLP Plaintiff, vs. SAN JOSE BERA VIORAL HEALTH LLC, Defendant. ) DEFENDANT SAN JOSE BEHAVIORAL ) HEALTH LLC'S NOTICE TO ADVERSE ) PARTY AND STATE COURT OF ) REMOVAL OF ACTION ) ) Action Filed: December 5, 2019 --------------- ) 1628302.1 DEFENDANT'S NOTICE TO ADVERSE PARTY AND STATE COURT OF REMOVAL OF ACTION Electronically Filed by Superior Court of CA, County of Santa Clara, on 5/13/2020 5:28 PM Reviewed By: S. Vera Case #19CV359746 Envelope: 4336303 19CV359746 Santa Clara - Civil S. Vera 1 PLEASE TAKE NOTICE that Defendant SJBH, LLC (erroneously sued as San Jose 2 Behavioral Health LLC) has removed this action to the United States District Court for the 3 Northern District of California. A copy of the Notice of Removal filed in the United States District 4 Court for the Northern District of California is attached hereto as Exhibit A. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: May 13, 2020 1628302.1 CAROTHERS DISANTE & FREUDENBERGER LLP M. Leah Cameron Attorneys for Defendant SJBH, LLC (erroneously sued as SAN JOSE BEHAVIORAL HEALTHLLC) 2 DEFENDANT'S NOTICE TO ADVERSE PARTY AND STATE COURT OF REMOVAL OF ACTION 1 2 3 4 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO. I, the undersigned, declare that I am employed in the aforesaid County, State of California. 5 I am over the age of 18 and not a party to the within action. My business address is 600 Montgomery Street, Suite 440, San Francisco, CA 94111. On May 13, 2020, I served upon the 6 interested party(ies) in this action the following document described as: 7 8 9 10 11 12 13 14 DEFENDANT SAN JOSE BEHAVIORAL HEAL TH LLC'S NOTICE TO ADVERSE PARTY AND STATE COURT OF REMOVAL OF ACTION By the following method: Andy Katz Law Offices of Andy Katz 2001 Addison Street, Suite 300 Berkeley, CA 94707 E-MAIL: andy(a),andvkatzlaw .com, cristina(a),andvkatzlaw .com For processing by the following method: [R] By placing such envelope(s) designated by the appropriate express service carrier with 15 delivery fees prepaid or otherwise provided for into Carothers DiSante & Freudenberger LLP's interoffice mail for collection and express delivery pursuant to ordinary business 16 practice. I am familiar with the office practice of Carothers DiSante & Freudenberger LLP for collecting and processing express deliveries, which practice is that when express 17 deliveries are deposited with the Carothers DiSante & Freudenberger LLP personnel responsible for handling express deliveries, such mail is deposited that same day in a box or 18 other facsimile regularly maintained by Federal Express or other like facility regularly maintained for overnight delivery. 19 [R] (e-mail) I caused the documents to be sent to the persons at the electronic notification 20 addresses listed above. 21 I declare under penalty of perjury under the laws of the State of California that the 22 23 24 25 26 27 28 CAROTHERS DiSANTE & FREUDENBERGER LLP foregoing is true and correct. Executed on May 13, 2020. Morgan Krutulis (Type or print name) 1628263.1 3 DEFENDANT'S NOTICE TO ADVERSE PARTY AND STATE COURT OF REMOVAL OF ACTION EXHIBIT A I Case 5:20-cv-03259 Document 1 Filed 05/13/20 Page 1 of 27 1 CAROTHERS DISANTE & FREUDENBERGER LLP Teresa W. Ghali, State Bar No. 252961 2 tghali@cdflaborlaw.com M. Leah Cameron, State Bar No. 274637 3 lcameron@cdflaborlaw.com 600 Montgomery Street, Suite 440 4 San Francisco, CA 94111 Telephone: (415) 981-3233 5 Attorneys for Defendant 6 SJBH, LLC erroneously sued as SAN JOSE BERA VI ORAL HEALTHLLC 7 8 9 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 11 JAMES BROGAN, ) Case No. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CAROTHERS DiSANTE & FREUDENBERGER LLP Plaintiff, vs. SAN JOSE BERA VIORAL HEALTH LLC, Defendant. 1628230.1 ) ) Santa Clara County Superior Court ) Case No.: 19cv359746 ) ) DEFENDANT SJBH, LLC'S NOTICE OF ) REMOVAL ) ) Filed concurrently with: ) - Civil Cover Sheet; ) - Deel. of M. Leah Cameron; ) - Deel. of Sean Peterson; and ) - Certificate of Interested Parties ) ) Action Filed: December 5, 2019 ) DEFENDANT SJBH, LLC'S NOTICE OF REMOVAL Case 5:20-cv-03259 Document 1 Filed 05/13/20 Page 2 of 27 1 TO THE CLERK OF THE UNITED STATES DISTRICT COURT OF THE 2 NORTHERN DISTRICT OF CALIFORNIA: 3 PLEASE TAKE NOTICE that, pursuant to 28 U.S.C. §§ 1332 and 1441 et seq., Defendant 4 SJBH, LLC, erroneously sued as San Jose Behavioral Health, LLC ("SJBH"), hereby provides notice 5 of removal of this action from the Superior Court of California, County of Santa Clara. In support 6 of removal, SJBH states the following: 7 8 I. BACKGROUND On December 5, 2019, Plaintiff commenced an action in the Superior Court of 9 California, County of Santa Clara, styled James Brogan v. San Jose Behavioral Health LLC, Case 10 No. 19CV359746. True and correct copies of all pleadings, process, and orders, and any other 11 documents on file with the State Court in this Action are attached to this Notice as Exhibit A. 12 2. Plaintiff's Complaint For Damages asserts claims for (1) discrimination on the basis 13 of disability or medical condition, (2) unlawful retaliation against plaintiff for exercising a protected 14 right, (3) failure to prevent discrimination and harassment and (4) unlawful termination in violation 15 of public policy. See Exh. A, Complaint For Damages ("Complaint"), generally. 16 3. On April 13, 2020, SJBH, through counsel, acknowledged service of the summons 17 and complaint by timely completing an Acknowledgement of Receipt form pursuant to California 18 Code of Civil Procedure section 415.30. Declaration ofM. Leah Cameron ("Cameron Deel.") at ,r 19 2, Exh. 1. 20 4. SJBH answered the Complaint in the Superior Court of California, Santa Clara 21 County, on May 12, 2020. See Exh. A, Defendant SJBH, LLC's Answer To Plaintiff James Brogan's 22 Complaint For Damages ("Answer"). 23 24 5. II. JURISDICTION This Court has original jurisdiction over this Action under 28 U.S.C. sections 25 1332(a), 1441 and 1446, as this dispute is between citizens of different states and the amount in 26 controversy is greater than $75,000, as set forth more fully below. 27 Ill 28 Ill 1628230.1. DEFENDANT SJBH, LLC'S NOTICE OF REMOVAL 1 2 Case 5:20-cv-03259- DocumeAt 1 Filed 05/13/20 Page 3 of 27 III. INTRADISTRICT ASSIGNMENT 6. Pursuant to Local Rule 3-2(c) and (e), Intradistrict Assignment to the San Jose 3 Division of the United States District Court for the Northern District of California is proper 4 because the state court action was originally filed in Santa Clara County and Plaintiff alleges that 5 SJBH employed him in Santa Clara County, where the allegedly wrongful conduct allegedly 6 occurred. Complaint, ,r 2. 7 8 IV. SATISFACTION OF THE PROCEDURAL REQUIREMENTS OF 28 U.S.C. § 1446 7. In accordance with 28 U.S.C. section 1446(a), this Notice is filed in the District 9 Court of the United States in which the action is pending. The Superior Court of California, 10 County of Santa Clara is located within the Northern District of California. Therefore, venue is 11 proper in this Court pursuant to 28 U.S.C. section 84(a) because it is the "district and division 12 embracing the place where such action is pending." 28 U.S.C. § 1441(a). 13 8. No more than 30 days have passed since SJBH accepted service of the complaint in 14 this action. Cameron Deel. ,r 2. Therefore, SJBH's Notice of Removal is timely in accordance 15 with 28 U.S.C. section'I446(b). See Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 16 344, 354 (1999) (service of process is the official trigger for responsive action by the defendant). 17 9. In accordance with 28 U.S.C. section 1446(d), a copy of this Notice is being served 18 upon counsel for Plaintiff and a copy is being filed with the Clerk of the Superior Court of 19 California in the County of Santa Clara and with the Clerk of the Northern District of California. 20 True and correct copies of the Notice to the Plaintiff and the state court shall be filed promptly. 21 V. REMOVAL IS PROPER BECAUSE THIS COURT HAS DIVERSITY JURISDICTION 22 PURSUANT TO 28 U.S.C. SECTIONS 1332 AND 1441. 23 10. Plaintiff's claims as alleged in the Complaint are removable under 28 U.S.C. section 24 1332(a) (diversity of citizenship). Diversity jurisdiction exists where the matter in controversy 25 exceeds the sum or value of $75,000 and is between citizens of different states. Id. The Parties Are Completely Diverse 26 A. 27 11. Traditional diversity jurisdiction requires that all plaintiffs be of different citizenship 28 than all defendants. Strawbridge v. Curtiss, 7 U.S. 267 (1806). 2 1628230.1 DEFENDANT SJBH, LLC'S NOTICE OF REMOVAL Case 5:20-cv-03259 Document 1 Fi~ed 05/13/20 Page 4 of 27 1 12. For diversity purposes, an individual is a "citizen" of the state in which he is 2 domiciled. Kantor v. Wellesley Galleries, Ltd., 704 F .2d 1088, 1090 (9th Cir. 1983). An 3 individual's domicile is the place he resides with the intention to remain or to which he intends to 4 return. Kanter v. Warner-Lambert Co., 265 F.3d 853,857 (9th Cir. 2001). Plaintiff asserts in the 5 Complaint that he is a resident of Alameda County, California, and that he resided there while 6 employed by SJBH in Santa Clara County. Complaint at ,i 2 (Ex. l); see also Declaration of Sean 7 Peterson ("Peterson Deel.") at ,i 4 (plaintiffs personnel file indicates a California home address). 8 13. Pursuant to 28 U.S.C. section 1332(c), "a corporation shall be deemed to be a citizen 9 of every State ... by which it has been incorporated and of the State ... where it has its principal 10 place of business." SJBH is a Delaware limited liability company with its principal place of 11 business in Tennessee. The sole member and 100% owner of SJBH is Acadia Healthcare 12 Company, Inc., a publicly traded Delaware corporation with its principal place of business in 13 Tennessee. Peterson Deel. at ,i 2. 14 14. Because SJBH, the only defendant in this case, is a citizen of the State of Delaware 15 and the State of Tennessee, and Plaintiff is a citizen of the State of California, complete diversity 16 exists pursuant to 28 U.S.C. § 1332(a). 17 B. 18 The Amount-In-Controversy Requirement Is Satisfied. 15. "[W]here a plaintiffs state court complaint does not specify a particular amount of 19 damages, the removing defendant bears the burden of establishing, by a preponderance of the 20 evidence" i.e., that it is more likely than not, that the amount in controversy exceeds the jurisdictional 21 threshold of $75,000. Sanchez v. Monumental Life Ins. Co., 102 F.3d 398,404 (9th Cir. 1996); 28 22 U.S.C. § 1332(a). A notice ofremoval "need include only a plausible allegation that the amount in 23 controversy exceeds the jurisdictional threshold" and evidentiary submissions are required only if, 24 after the notice of removal containing that plausible allegation is filed, plaintiff contests, or the court 25 questions, defendant's allegation. Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 26 89 (2014). 27 /// 28 /// 1628230.1 3 DEFENDANT SJBH, LLC'S NOTICE OF REMOVAL Case 5:20-cv-03259 Document 1 Fi~d 05/13/20 Page 5 of 27 1 16. The amount in controversy may be determined from the allegations or prayer of the 2 complaint. See St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283,289 (1938) (inability to 3 recover an amount adequate to give court jurisdiction does not oust court of jurisdiction). Potential 4 defenses to all or part of a claim does not affect the amount in controversy. See id. at 295-296; 5 Riggins v. Riggins, 415 F.2d 1259, 1261-1262 (9th Cir. 1969) (that statute of limitations defense 6 might bar portion of relief sought did not affect amount in controversy). 7 17. In determining whether the jurisdictional minimum is met, the Court should consider 8 all amounts alleged, including future attorneys' fees where recoverable by statute. Galt GIS v. JSS 9 Scandinavia, 142 F.3d 1150, 1155-56 (9th Cir. 1998) ("where an underlying statute authorizes an 10 award of attorneys' fees, either with mandatory or discretionary language, such fees may be included 11 in the amount in controversy"); Fritsch v. Swift Transportation Company of Arizona, LLC, 899 F.3d 12 785, 794 (9th Cir. 2018) (A court must include future attorneys' fees recoverable by statute when 13 assessing whether the amount-in-controversy requirement). Here, if Plaintiff prevails on any portion 14 of his FEHA claims, he may be entitled to an award ofreasonable attorney's fees and costs. See Cal. 15 Gov. Code§ 12965(b). 16 18. Based on a fair reading of the Complaint, and without conceding that any of Plaintiff's 17 claims have any merit whatsoever, Plaintiff seeks in excess of $75,000, exclusive of interest and 18 costs; namely, Plaintiff seeks compensation for back pay, front pay, other special damages; emotional 19 distress, pain and suffering, and loss of enjoyment of life; punitive damages, and attorneys' fees and 20 expenses. Exh. A, Complaint at pg. 4 (Prayer for Relief). 21 19. Plaintiff claims that SJBH terminated his employment because of his disability and in 22 retaliation for his engaging in protected conduct relating to his disability, and that he is entitled to 23 back pay and front pay accruing as a result of such unlawful termination. Exh. A, Complaint at ,i,i 24 5-6, 10-11, 13-14, Prayer for Relief at ,i 1. 25 20. Plaintiff was paid $48.08 per hour ($1,923.08 per week) and scheduled to work on a 26 full-time basis of 40 hours per week at the time of his separation from SJBH on December 8, 2017. 27 Peterson Deel. at ,i 3; Exh. A, Complaint at ,i 5. Therefore, since Plaintiff was terminated over 125 28 weeks prior to the time of this filing, the amount placed in controversy by Plaintiff's backpay claim 4 DEFENDANT SJBH, LLC'S NOTICE OF REMOVAL 1628230.1 Case 5:20-cv-03259 Document 1 Filed 05/13/20 Page 6 of 27 1 alone exceeds $75,000.00 ($1,923.08/wk x 125 wks = $240,385.00). 2 21. Where a Plaintiff "claims at the time of removal that [his] termination caused [him] 3 to lose future wages ... then there is no question that future wages are 'at stake' in the litigation, 4 whatever the likelihood that [he] will actually recover them." Chavez v. JPMorgan Chase & Co., 5 888 F .3d 413, 417 (9th Cir. 2018). For purposes of removal, the Court should consider lost wages 6 accrued from Plaintiffs separation of employment through an estimated trial date of one year after 7 removal. See Molina v. Target Corp., 2018 WL 3935347, *3 (C.D. Cal. Aug. 14, 2018, No. CV 18- 8 03181-RSWL-FFM). Conservatively estimating a trial date one year after removal in May 2021, 9 Plaintiff would be entitled to an additional estimated $100,000.16 in front pay if he prevailed. See 10 Chavez, 888 P .3d at 418 ("In sum, the amount in controversy includes all relief claimed at the time 11 of removal to which the plaintiff would be entitled if she prevails"). Thus, Plaintiffs claim for lost 12 wages is sufficient on its own to establish diversity jurisdiction. 13 22. Plaintiff also seeks some unspecified amount of emotional distress damages. Exh. A, 14 Complaint at p. 4, Prayer for Relief at ,i 2. In analogous cases involving similar allegations of PEHA 15 violations, juries have awarded in excess of $75,000 in emotional distress damages, and as such, in 16 assessing removal, courts have found at least $75,000 is at issue for claimed emotional distress 17 damages alone. See Molina v. Target Corp., 2018 WL 3935347 at *4 (citing jury verdicts from 18 analogous cases involving PEHA violations, wrongful termination, and discrimination on the basis 19 of disability leading to emotional distress damages in excess of $75,000). Thus, emotional distress 20 damages of at least $75,000 should be included in calculating the amount in controversy. 21 23. Plaintiff also seeks punitive damages (Exh. A, Complaint at p. 4, Prayer for Relief at 22 ,i 3), which are available for common law wrongful termination claims and PEHA claims where the 23 Plaintiff makes the showing required by California Civil Code section 3294. Commodore Home 24 Systems, Inc. v. Superior Court, 32 Cal.3d 211,221 (1982); Rodriguez v. Home Depot, US.A., Inc., 25 2016 WL 3902838, *15-16 (N.D. Cal. July 19, 2016, No. 16-cv-01945-JCS). When including 26 punitive damages in calculating the amount in controversy, courts have applied a 1:1 ratio based on 27 the amount of compensatory damages. See Molina v. Target Corp., 2018 WL 3935347 at *4. Thus, 28 punitive damages of $340,385.16, mirroring Plaintiffs alleged economic damages, should be 5 1628230.1 DEFENDANT SJBH, LLC'S NOTICE OF REMOVAL Case 5:20-cv-03259 Document 1 Fiied 05/13/20 Page 7 of 27 1 included in calculating the amount in controversy. 2 24. Plaintiff seeks attorneys' fees for alleged violations under FERA and California Code 3 of Civil Procedure section 1021.5. Exh. A, Complaint at pg. 4, Prayer for Relief at, 5. "[A] court 4 must include future attorneys' fees recoverable by statute or contract when assessing whether the 5 amount-in-controversy requirement is met." Fritsch, 899 F.3d at 794 (emphasis added). "The 6 amount of fees commonly incurred in similar litigation can usually be reasonably estimated based on 7 experience." Brady v. Mercedes-Benz USA, Inc., 243 F. Supp. 2d 1004, 1011 (N.D. Cal. 2002). 8 Attorney's fees alone on a retaliation claim can easily exceed $75,000. See Kelley v. Com. Dept. o 9 Conservation and Recreation, 2014 WL 2504520 (Super. Ct. Mass. March 21, 2014, No. 10 SUCV200701910) (awarding $215,204 in attorney's fees on retaliation claim); Wu v. World Journal, 11 Inc., 2007 WL 5998522 (Super. Ct. Cal. August 22, 2007, No. 452055) (awarding $84,681 in 12 attorney's fees for period after granting motion for summary judgment [against all claims other than 13 retaliation] through trial on retaliation claim only). 14 25. Thus, if Plaintiff is successful on even one, some, or all of the claims asserted, his 15 potential recovery will exceed the jurisdictional minimum of $75,000. 16 17 VI. CONCLUSION 26. Based on the foregoing, this Court has jurisdiction on grounds of diversity of citizenship 18 pursuant to U.S.C. sections 1332(a) and 1441(a). Plaintiff and SJBH are not citizens of the same 19 state. In addition, the claims of Plaintiff place more than $75,000 in controversy. Thus, removal to 20 federal court is proper. 21 27. In the event this Court has a question regarding the propriety of this Notice of 22 Removal, SJBH requests that the Court issue an Order to Show Cause so that SJBH may have the 23 opportunity to more fully brief the basis for this removal, and/or order Plaintiff to file a statement of 24 damages. 25 28. By filing this Notice of Removal, SJBH does not waive, either expressly or impliedly, 26 its respective rights to assert any defense it could have asserted in the Superior Court of California, 27 County of Santa Clara, in the United States District Court for the Northern District of California. 28 SJBH reserves the right to amend or supplement this Notice of Removal. 6 DEFENDANT SJBH, LLC'S NOTICE OF REMOVAL 1628230.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:20-cv-03259 Document 1 Filed 05/13/20 Page 8 of 27 Dated: May 13, 2020 1628230.1 CAROTHERS DISANTE & FREUDENBERGER LLP ~~~ By:---------------- M. Leah Cameron Attorneys for Defendant SJBH, LLC erroneously sued as SAN JOSE BEHAVIORAL HEALTHLLC 7 DEFENDANT SJBH, LLC'S NOTICE OF REMOVAL Case 5:20-cv-03259 Document 1 Filed 05/13/20 Page 9 of 27 EXHIBIT A Case 5: 0- 9 Document 1 Fil d 05/13/ 0 Page 9 of 27 I Case 5:20-cv-03259 Document 1 Filed 05/13/20 Page 10 of 27 l'!M-010 j~r~~tnoi!~EY,,_., $1,;t..S..t •l!llllDDr,®d~= FPR Ci)IJ91 tll!Ec;lr..Y lavfOOfoes of Andy ~atz ... Electronically Filed 2001.Addiso,uStreet,S\iite 300 by Superior Court of CA, !Bedteley, CA 947°i1 .. . < · 'fl3.EcPl-!OffENQ.! j 10),4654,4{){) hMNO,, {$JO) 679-3277 County of Santa Clara, ATTORHIW FOR (N1m1t); ames Brogan ----' . on 12/5/2019 2:38 PM su~eRioRCOURTOI' ef?J'TirJMWirv ~~tl Reviewed By: Yuet Lai S'll~li.lAOORE.00: • · .. . ll'llt • tl'eet Mllit.JNGAi:ll:>9~ S I CA 95113 Case #19CV3597 46 enYANl.)Mpc~ . an oso, .· .. · . . . .· Envelope: 3733938 IIKANOfl~ 'Downtown Su1')ertorCourt .. M,'31; NAME: . . .· . . . . J'ames]!toga11vs. ·San Jo~ Be~vioral Health LLC ..•...... .... "'"' ................... ,=- ......... CIVIi. CASE COVER SHEET Complex Case Designation CASE HUMOCR: ~ l:Jnlimittld O · Umtted 19CV359746 (Arnoul1t (Amount D Counter D Joinder demanded demanded ls Filed with first appearance by defendant JIJOOE: exceeds $25,000) $;25.00.0 or less)· ... (~!. Rules of Court, rule 3.402) Tort Cutttnlet Auto (22) D Wiaach of contrru:tlwnrrantv (06) \Jolrlliuroo mut.orisl (4~) D Rule 3,740 collettrons {Oil} OlherPlfPDIWD (Pen11:ma1'lnjuiy/Property LJ Olhorcolluctkms (00) D;nnageJWrongful Death} Tort D 1nsurt1nce oovel'ilge (18) D Aaboo!(ls (04) 0 Olhe! i.,unlrciul (37) D Product llatiility ('24) R11al Property D Madlcal malpractlce{45) D EminA11tdomainllnver1.e LJ Other PIJPDM'O (23) · condemnation (14) Non-Pl/PD/WO {Other) Tort D Wroogful evic!lon (33) D BllS!ll8&s trirt/unfair business practfro (01). 0 .Other real property (76) D Civil rights (08) Unlawful Datalnar LJ Deklrr1U.tion (13) D Ool'llmorcial (31} D Fraud (10) LJ Rosii;lonli;il (32) D lntelleotualpmparly(19) D D1ugs{S8) n Professional negligMce (25) Judlclnl Review n Other oon-PIIPDIWD tori (36) D A~ forfellure (05) 1:mploymont LJ Petlt!on re: arbtlta!lon award ( 11) (i'] wrongful termination {36} D !/wit of mandate (02) Other employment {15) D Othar jmflr;l.-11 revl,1w (39 Di:iPT: Provtaltmally Complex Chrll Utlgatlon (Cal, RuJes or Court. rules MOD-3A-03} D Anllti1.lst/Tr.ada regulation (03) LJ C:0Mtt11ctlon thtifer.l {10) D Masstort{40) D Ser.urltles !ltlgettnn (26) D EnvlronmentalfToxlc tort (30) D lnturaru::e coverage claims cirn:ino from Iha above li&ted pro\/i6ionaliy complex case lypos(41} Enforcement of Judgment D Enforcement r,f Judgment (20) MiscoUaoeous Civil Complai11t 0 RIC0(27) n Other complaint (not specified eoove) {42) MisceUaneous Civil Petition D Pa1trwr:;hip i!lld co1poral1;1 governencc (21) D O!hur petiliori {1101. spoofliocJ aoovo) (4'3) 2, This. case . h; is not complex ~mder rule 3,400 of t11e Californi;; Roles of Court If the case is complex, mar1< the facto,$ requiring exceptional judicial manag9mon1: a. D Large number of separately represented parties b, D Extensive motion p1aciice raising diffic.u!L or novel issues lbot will bo time"consumlng to resolve o. D Substantial amount of documentary avidence 3. Remedies sought (ohaok r:i/1 th!¾tapply): a.G2:J monetary 4. Number of causes of action (spoci(y); 5. Tnls case D is @ is not a class action suit d. D Large number of witnesses e. D Coordination with related actions pending in ono or more.ooum in other counties, states, or countries, or in a federal oourt f. D Substantial posgudgmenl judicial supervision b, D no11monetary; declaratory or injunctive relief C. n punittve 8. If there ore any known related cases, file and serve a notice of related case. (You may USC( form CM-015.) Osle: 1.2/05/19 Andy Katz JYPe OIH'RINBIIIMI:! NOTICE • I '!aintiff must file this cover sheet with lhe fll'$l paper filed ,n the action or procepding {except small cltlims cases or cases filod under the Rr-0bate Cede, Family Code, orWeJfara and Institutions Code). {Cal. Rules of Court, rule 3.720.) Fai!urR to file rnay result in .sanctions. • Ffla this cover sht38t In addition to. ony cover sheet required by local court rub. • • If this case is compl0x under rule 3.4.00 et seq. of the California RulAs of Court, you must serve a mpy of thL.:; cover sheet on all other parties to 111e action or proceeding, • Unless thls fs a collections case under rule 3.740 or a complex case, this cover sheet will be used for statlstic;ql purposes onlv .. i<a 1 or CIVIL CASE COVER SHEET Cal. Rul"6 o!C<>llrt ruli;l$2.30. 3,22!1,JIA!ll;JJ,4();1,3;140, ra1 Sinn~"""' nf.)udlrlal Admlrlolrullon, ,du. S.10 www.-/l>.es:;i,w Case 5:20-cv-03259 Document 1 FHed 05/13/20 Page 11 of 27 Andy Katz(StateBarNo. 264941) Law Offices of Andy Katz 2001 Addison Street, Suite 300 Berkeley, CA 94704 (510) 465-4400 Fax: (5 W) 679-3277 E-FILED 12/5/2019 2:38 PM Clerk of Court Superior Court of CA, County of Santa Clara 19CV359746 Reviewed By: Yuet Lai SUPERIOR COURT OF' THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA JAMES BROGANe Case No.: 19CV3597 46 COMPLAINT FOR DM1AGES WRONGFULTE1Uv1INATION-IN VIOLATION OF PUBI JC POI .ICY Plaintiff, vs. SAN JOSE BEHAVIORAL HEALTH LLC, Defendant [Damages exceed $25,000] JURY TRIAL DEMM1)ED I. PARTIES 1. At all times matet·ial to this complaint, defendant San Jose Dehavioral Health LLC (hereafter "Defondant" or ''SJBH"), was an employer operating in the State of California, County ofAlarneda, with headquarters in the State of California, County of Santa Clara. 2. Plaintiff James Brogan (heteafter "Plaintiff' or 1'Mr. Brogan"), was a resident of Alameda Com,ty, California: and was employed by SIDH from his hire less than three years ago until his wrongful termination. His primary job placements with SJBH, and primary place of business we,:e in Santa Clara County. II. STATEMENT OF FACTS 3. Mr. Brogan experienced ha1•a.qsment by his employer on the basis of disability. 4. SJBH failed to accommodate Mr. Brogan's disability. S. SJBH terminated Mr. Brogan's employment on the basis of his disability and in retaliation. for protected conduct related to his disability on December 8, 2017. Mr. Brogan Case 5:20-cv-03259 Document 1 Filed 05/13/20 Page 12 of 27 1 obtained a Righi to Sue Leiter from the Department of rail' .Eroployn1c11t and Housing on December 5~ 2018. 2 3 5 6 7 8 9 10 11 12 18 14 15 16 17 18 19 20 :n 22 23 25 26 27 20 6. As a result, Mr. Atnesha.<; lost wages, benefits~ and experienced severe emotional di$1ress. III. FIRST CAUSE OF ACTION Discrimination on the Basis of Disability or Medical Condition (Cal, Gov. Code§§ 12940(a)(l)(2)) 7, The allegations of Paragraphs l through 6 are re-alleged and incorporated herein by reference, and Plaintiff alleges for a first cause of action as follows: 8. FF.HA, under CaL Gov. Code §§ l 2940(a)(l)(2), prohibits employer discrimination on tlle basis of physical disability. and does not allow for an employer to discharge a puson with a disability so long as that employee ca11 pet-form essential duties with reasonable accommodation. 9. At all times mentioned, Government Code Sectionsl 2940-12951 were in full force an effect, and were binding on SJBH as an employer covered by FEHA 10. Plaintiff Vva.S te1111inated on the basis of disability hy SJBH after a significant period of wholly satisfactory, competenl, arnl diligent performance to the benefit of SJBH. 11. Such discrimination is in violation of Government Code :,eclions 12940-12951 and has resulted in damage and iqjury to plaintiff as alleged herein. WHEREFORE, plaintiff requests relief as hereafter prov idcd. IV. SECOND CAUSE OF ACTION SJBH Unlawfully Retaliated Against PJabttiff for F.xcreising a Protected Right (Cal. Gov. Code§ 12940(h)) 12. The aHegations set f01ih in Paragraphs l through 11 are re-alleged and incorporated herein by reference. 13. During the course of Plaintiffs employment, Plaintiff engaged in protected activity when he began treatment treated for his injury and disabilities and requested reasonable accommodation from SJBH, SJBH then retaliated against Plaintiff for having taken such legally protected action. 14. SJBH's treatment of Plaintiff is in violation of Cal. Gov. Code§ 12940(h). Plaintiff timely filed a complaint with the California Department of Fair Employment and Housing and recdved a right to sue letter. WHEREFORE, plaintiff requests relief as hereafter provided. 1 6 Case 5:20-cv-03259 Document 1 Filed 05/13/20 Page 13 of 27 V. THIRI> CAUSF~ OF ACfJON S,TRH Failed to Prevent Discrimination and Harassment (Cal. Gov. Code § l2940(i)) 15. The allegations set forth in Paragraphs 1 through 14 above arc re-alleged an.d incorporated herein by reference. 6 16. At all times mentioned in this complaint, Goverm1ient Code §12940(1) wa.~ in full force and effect and ·was binding on S.TBH as art employer of Plaintiff. This subsection requires 7 employers to take all reasonable steps necessary to prevent discrimination and harassment from occurring. As alleged above, defendant<; violated this subsection by failing to take all reasonable 8 steps necessary to prevent discrimination and harassment from occurring. Within the time provided by law, plaintiff filed a Complaint with the CaUfomia Department of Fair 11mployment 9 and Housing and received a right-to-sue letter. 10 1l 12 13 14 1.5 16 17 '18 19 20 21 22 23 24 25 26 27 28 III. }'OURTH CAUSE OF ACTION SJBH Unlawfully Terminated Plaintiff in Violation of Public Policy (Cal. Gov. Code§§ 12940-12951) 17, The allegations set fo1th in ParagraJ>hs I through 17 are re-alleged and incorpo.rated herein by reference. 18. Defendant's termination of Plaintiff is in violation of public policy when Defendant terminated against Mr. Brogan on the basis of his disability. 19. Defendant's failure to reinstate Plaintiff is in violatioll of public policy when Defondant retaliated against .Mr. Brogan on the basis of protected conduct. 20. FEHA, under Cal. Gov. Code§§ 12940(a), prohibits employer discrimination on the basis of disability, and does not allow for an employer to discharge a person with a disability so long a..~ that employee can perform e;:ssenlial duties with reasonable accommodation. 21. At all times mentioned. Government Code Sections 12940-12951 were in full force and eifect, and were binding on Defendant as an employer covered by PEHA. These statutes prohibit employers from discharging, discriminating, or retaliating against employees on the basis of disability. 22, Such discrimination is in violation of Goverruncnt Code sections 12940-12951 and public policy and has resulted in damage and itzjury to plaintiff as alleged herein. 23. In dist:harging Plaintiff, Defendant violated the fundamental, su1,sta11tial, and well- cstabtished public policies embodied in Govemment Code sections 12940-12951. Such an actio is in violation of the law and has resulLed in damages and i{\jury to Plaintiff as alleged herein. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 20 21 22 23 24 25 26 27 28 Case 5:20-cv-03259 Document 1 Filed 05/13/20 Page 14 of 27 WHEREFORE, plaintiff requests relief as hereafter provided. IV. REQUEST FOR JURY TRIAL Plaintiff reque.c;ts a trial by jury. VIII. PRAYF,R FOR RRLTEF WHEREFORE, plaintiff requests relief as follows: l. For back pay, front pay, and other special damages according lo proof; 2. For general damages to compensate plaintiff for emotional distress, pain and suffering, and loss of enjoyment oflife; 3. For punitive damages; 4 . .For pr~judgment interest on all damages awarded under Civil Code § 3287(a); 5. For reasonable attorney fees under the Fair Employment and Housing Act, Code of Civil Procedure§ 1021.5, and any other applicable statute or legal principle; 6. For costs of suit incuned; and 7. For such other and fmiher relief as the Courl may <leemjust and proper. Dated this 5th of December, 2019 And~ Attorney for James Brogan Case 5:20-cv-03259 Document 1 Filed 05/13/20 Page 15 of 27 SUMMONS (C/TACION JUDICIAL) NOTICE TO l)EFENPANT: (AVISO AL DEIVJANDADOJ; Sm1 Jose Behavioral Health lLC '{QU ARE BEl~G SUED BY PLAINT1FF: (LO ESTADEMANDANDD EL DEMANDANTE): Jame$ Brogafl E-F I LE@rcmJl'.ITU~ONLY (SOW'PARA fJSODitt.A f;QRTl:J 12/5/2019 2:38 PM Clerk of Court Superior Court of CA, County of Santa Clara 19CV359746 Reviewed By: Yuet Lai Envelope: 3733938 c. ou have een sua<l he oourt may deoide agatnst you wttllout your being !lean.I ui1le:1syou respond within 30 tl.iys. Read the in ormatlon IW!IOW, Yi,tUmve 30 CALENDAR DAYS aflar!hls summons and legalpapers are rwvedon vou to file.awrttten response at tllisoourtandnave 1:1ooµy sqJVed on thi:: plaihtlff. A letter or phone c\lll will not protect you. Yow written respoosa most b9 in proper legal form If you want the court to near your ~, TI1e/e rnay be a court fonn 'llml you cun uso foryourresponse.You can find these court forms and more information at the Callfornfa Courts Ondne .seti.HelpCenter (www.courtlnfo.ca.gov/selfhe/p), ~ourCP(l11ly l!lw llbn1ry,or 111e cpu1thb!.1$0 ncttroot you. If you oomot pay the fil1119 tea. ask the Mmt.ciitrkfor a (aa waiver fbrm. If you. do not file your response on lime, you may lose. u,e t'Bse by defauft, and yuur WE190s, money; and proper!y may ~1Bltliln wttht:mt fmtoor waroing fltlm U1a court. There ar.e ather legal requirements. You may want It:> oall'an attorney right.away. If you do not know an attorney, you may want to call an attorney Nlett~ se1v1ce. U you cannot afford an aUoroey, you may be eligible for free 1enalt1ervices from a nooprotltlegal services program. Vou,can lQcate . these nonprofit groups atlhe California Legal Services Web site jww,iv./DwlWl,x:alffomla.org). tho Cllllfumia Courts Online StilH!aip Canter (www.cauttlnfo.ca.gov/se/fhe(o), or by contacting your local court or county bar ;issocialion. NOYE: The courl has a statutory lion for waived fees and r,nslllon anyMltlemAl'll orarbilrallon award ofSiO,OOOor more In a cMI case. The court·s lien must be paid before ll'le.oourtwiU di.amiss thc®so. ;11 ViSO! Lohan demandado 31110 responde r/Mtro rla :,r; rflas; la corte pu8de decJdk en su contra sin ascuchar su versi6n. Lea lt1 irrtormaoo1 a C0/1(/t!Uf;!CJQI). Tient; 3Q DIAS DE GA!.£NDARJO r.fe:;pt1es r.Je quc k/ '111/regucn osw ol!oci¢n y pap,iilOO ltJ!Jolei, psra preaentar 1ma fl'lflntialltJJ par ascflfo.en a.'lta cr,rfe y hacer que se entregue una copia aJ de!J!lmdante. Un!;I carta Q u11111/am.i<h:I te/ef6n/ca ,w f(J pu;,tegeo. s,,, f(l~fita p0r esclito til:lne que astar en furmato legal corr9Cfo side sea que procesen su caS<ren le corte, Es posible que haya un fotml.thtriO wa usterJpueda usar para eu rcspuesta. Ptiede encontrar estos fr:mrwiarin.., de la r.orte y mas lnforma,J'an en el Centro de Ayuda de las Cortes de California (www.suoorte.ca~v). enJa blb/iokx;a de !eyes de su condada o en la oorte que le quede mas cem11. SI no puede pagar la cuota df, prasentacldn, pida al secretario de 18 oorle que Je de un (wmu11:11iu du exem.,w,1 do pago do cuo/os. Si 110 proso11ia su 1espuesta a tiempo, pueoo per<ferel r;aso par if)Cllmplim!anto y la cotta !e podra quitar w we!do, clinero y bienes sin mils adVerteneia. flay .otrps teqiJ!sil!is Jega/es. /Js rscomendl!ib!e qr.:e /lame !i un ebogado inmediimimente, Si no cofWLc~ u w, c1jwgildo, pued,;; lklt11a1 a 1.m se/1/icfo de remlllfori a abogado,,. Si no puefht pagar a un abogad<>, es posible q:ue eumpJa eon los requis/tos pan, obiener serviciOs lega/es gratu,,os de 1m progmma de serv,oos ffJf}flfes ,5kl fines de /ifcro Paede enconfrar e.-.tQf: gmpo..~ sin fines de !ucra .en et sfffo web de Celitomia Legel Services, (www.li#Wl1elpc:alifomia.org), en of Co11/ro do Ayuda de fas Co,tes de cal/fomie, (www.s11oorie:.ca,gDV) o poniendose M r.ontacro con la code o el colegio de abogados locales. AV/$0: Por ley, Iii cone liene dorlii(l/10 o rccfomat las ouotas y los costo$ exentos par imponer llll gravamen sobtB cµalquier recuperacion de $10,000 o mes de valor recibide mediante un scuerdo o uria wnce$i/Jf1 de arbllroje 011 w1 caso de derocho civil Tiene (flJe pagar el gravamen de /a corte antes de qua le corte pueda desechar el caso. The name and address of the court Is: (El nombll3 y direcoi6n de la cone es): Downtown Superior Court CASE NUMBER: (Niimero def Cssa): 19CV359746 19·1 North First Street. San ,Jose, CA 95113 The name, address, and telopho110 number of plaintiff's attorney, or plaintiff without an attorney, is: (fl nomhm, la direccion y el n(imem de lefefono del obogado del domandanto, o do/ demandante que no llene abogsdo, es): Andy Kalz, Law Offices of Andy l<alz, 2001 Addison St., STE 300, Berkeley, CA 94704; (510) 465•4400 DATE~ 2/5/2019 2:38 PM Clerk of Court Clerk, by Yuet Lai (Fec:ha) (Secretario) (For prootofservfce ofthfs summons, use Proof of Service of Summons (fotm POS.010).) (Para pmeb;, de entraga de esta r.itatltm 11..:a el formulario Proof of Service of Summons, (POS-010).) NOTICE TO THE PERSON SERVED: You are served 1. D as an individual defendant 2. D .is the person sued under the fictllioll$ name of (specify): 3. IL! on behalf of (specify)'. San Jose Behavioral Health lJ.C , Deputy (Atljunto) under.@ CCP 416.10 (corporation) l_ .. _I CCP 416,60 (minor) Pmm t,dnpind ror l>1lnnd3klr/ Uno Joih.l~I Cwitcil ~1 C•lifcrnia OOM-11:'<I !R~v. J.-., ,, 2<l00! D CCP 416.20 {defunct corporation) D CCP 416, 70 (conseivatee) D CCP 416A0 (associaUoo or partnership) D CCP 416.90 (authorized person} r-J oiher (spacify); 4. D by personal delivery on (date} SUMMONS Cnoo nr Civil Prooedure §§ 412.20. •165 WWW+t.:Cr.:;1S,ta.gOV Case 5:20-cv-03259 Document 1 Filed 05/13/20 Page 16 of 27 Andy Katz 2001 Addison St Ste 300 Berkeley CA 94704-1165 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE 191 NORTH FIRST STREET SAN JOSE, CALIFORNIA 95113 CIVIL DIVISION RE: James Brogan vs San Jose Behavioral Health LLC Case Number: 19CV359746 NOTICE OF FURTHER CASE MANAGEMENT CONFERENCE A further Case Management Conference has been scheduled for the above entitled case, and you are directed to appear in court on: Date: July 07, 2020 Time: 10:00 AM Dept.: Department 21 For further information, call the Calendar Office (408) 882-2100. If you, a party represented by you, or a witness to be called on behalf of that party need and accommodation under the American with Disabilities Act, please contact the Court Administrator's office at (408) 882-2700, or use the Court's TDD line, (408) 882-2690 or the voice/TDD California Relay Service, (800) 735-2922. DECLARATION OF SERVICE BY MAIL: I declare under penalty of perjury that I served this notice by enclosing a true copy in a sealed envelope, addressed to each person whose name is shown below, and by depositing the envelope with postage fully prepaid, in the U.S. Mail at San Jose, CA on March 18, 2020. CLERK OF THE COURT, by Sandra Vera, Deputy. cc: CV-5063 REV 07/01/16 Case 5:20-cv-03259 Document 1 Filed 05/13/20 Page 17 of 27 File Copy SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE 191 NORTH FIRST STREET SAN JOSE, CALIFORNIA 95113 CIVIL DIVISION RE: James Brogan vs San Jose Behavioral Health LLC Case Number: 19CV359746 NOTICE OF FURTHER CASE MANAGEMENT CONFERENCE A further Case Management Conference has been scheduled for the above entitled case, and you are directed to appear in court on: Date: July 07, 2020 Time: 10:00 AM Dept.: Department 21 For further information, call the Calendar Office (408) 882-2100. If you, a party represented by you, or a witness to be called on behalf of that party need and accommodation under the American with Disabilities Act, please contact the Court Administrator's office at (408) 882-2700, or use the Court's TDD line, (408) 882-2690 or the voice/TDD California Relay Service, (800) 735-2922. DECLARATION OF SERVICE BY MAIL: I declare under penalty of perjury that I served this notice by enclosing a true copy in a sealed envelope, addressed to each person whose name is shown below, and by depositing the envelope with postage fully prepaid, in the U.S. Mail at San Jose, CA on March 18, 2020. CLERK OF THE COURT, by Sandra Vera, Deputy. cc: Andy Katz 2001 Addison St Ste 300 Berkeley CA 94 704-1165 CV-5063 REV 07/01/16 Case 5:20-cv-03259 Document 1 Filed 05/13/20 Page 18 of 27 1 CAROTHERS DISANTE & FREUDENBERGER LLP Teresa W. Ghali, State Bar No. 252961 2 tghali@cdflaborlaw.com M. Leah Cameron, State Bar No. 274637 3 lcameron@cdflaborlaw.com 600 Montgomery Street, Suite 440 4 San Francisco, CA 94111 Telephone: (415) 981-3233 5 Attorneys for Defendant 6 SJBH, LLC ( erroneously sued as SAN JOSE BERA VI ORAL HEALTHLLC) 7 8 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA 11 JAMES BROGAN, ) Case No. 19CV359746 ) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CAROTHERS DiSANTE & fRELIDENBERGER LLP Plaintiff, vs. SAN JOSE BERA VI ORAL HEALTH LLC, Defendant. ) DEFENDANT SJBH, LLC'S ANSWER TO ) PLAINTIFF JAMES BROGAN'S ) COMPLAINT FOR DAMAGES ) ) Action Filed: December 5, 2019 ) _______________ ) 1627676.1 DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT Case 5:20-cv-03259 Document 1 Fited 05/13/20 Page 19 of 27 1 Defendant SJBH, LLC (erroneously sued as SAN JOSE BEHAVIORAL HEALTH LLC) 2 ("Defendant" or "SJBH") hereby answers Plaintiff James Brogan's ("Plaintiff') Complaint for 3 Damages (the "Complaint") as follows: 4 5 GENERAL DENIAL Pursuant to the provisions of Section 431.30 of the California Code of Civil Procedure, 6 Defendant generally denies each and every allegation in the Complaint and each and every purported 7 cause of action alleged in it, and further denies that Plaintiff has been damaged in any amount, sum or 8 manner whatsoever. 9 AFFIRMATIVE DEFENSES Defendant has not completed its investigation of the facts of this case, has not completed 11 discovery in this matter, and has not completed its preparation for trial. The affirmative defenses 12 asserted herein are based on Defendant's knowledge, information, and belief at this time, and 13 Defendant specifically reserves the right to modify, amend, or supplement any affirmative defense 14 contained herein at any time. 15 Without conceding that it bears the burden of proof or persuasion as to any one of them, 16 Defendant alleges the following separate affirmative defenses to the Complaint: 17 18 19 1. FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim) Plaintiffs Complaint, and each and every purported cause of action alleged therein, fails 20 to state facts sufficient to constitute a cause of action upon which relief can be based. 21 22 23 2. SECOND AFFIRMATIVE DEFENSE (Estoppel) The claims contained in the Complaint are barred, in whole or in part, by the 24 doctrine of estoppel because Plaintiff, by his own actions or conduct, is estopped from pursuing the 25 claims set forth in the Complaint. 26 Ill 27 Ill 28 Ill 1627676.1 2 DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT 1 2 3 Case 5:20-cv-03259 Document 1 Filed 05/13/20 Page 20 of 27 THIRD AFFIRMATIVE DEFENSE (Unclean Hands) 3. The claims contained in the Complaint are barred, in whole or in part, by the 4 doctrine of unclean hands. 5 6 7 4. FOURTH AFFIRMATIVE DEFENSE (Fault of Others) Plaintiff's claims contained in the Complaint are barred, in whole or in part, because 8 if Plaintiff sustained any damage, injury or detriment as alleged in the Complaint, such injury was 9 caused by the fault of others for whose conduct Defendant is not liable. 10 11 12 5. FIFTH AFFIRMATIVE DEFENSE (After-Acquired Evidence) The claims contained in the Complaint are barred, in whole or in part, to the extent 13 after-acquired evidence includes information that would have led Defendant to terminate Plaintiff's 14 employment had Defendant been aware of such information while Plaintiff remained employed 15 with Defendant. 16 17 18 6. SIXTH AFFIRMATIVE DEFENSE (Workers' Compensation Exclusivity) Any and all claims by Plaintiff based in whole or in part upon any alleged physical 19 or emotional injury or distress are barred because Plaintiff's sole and exclusive remedy, if any, for 20 such injuries is governed by the California Workers' Compensation Act and therefore must be 21 determined before the Workers' Compensation Appeals Board. Cal. Lab. Code§§ 3600 et seq. 22 23 24 7. SEVENTH AFFIRMATIVE DEFENSE (Failure to Exhaust Administrative Remedies) Plaintiff's Complaint and the purported causes of action alleged therein are barred 25 because Plaintiff has failed to exhaust administrative remedies, including but not limited to, those 26 contained in the Fair Employment & Housing Act ("FEHA"). 27 Ill 28 Ill 1627676.1 3 DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT 1 2 3 Case 5:20-cv-03259 Document 1 Filed 05/13/20 Page 21 of 27 EIGHTH AFFIRMATIVE DEFENSE (Failure to Take Advantage of Corrective Opportunities/Avoidable Consequences) 8. The claims in the Complaint are barred, in whole or in part, because Plaintiff 4 unreasonably failed to take advantage of corrective opportunities offered by Defendant. 5 6 7 9. NINTH AFFIRMATIVE DEFENSE (Reasonable Care) The claims in the Complaint are barred, in whole or in part, because Defendant 8 exercised reasonable care to prevent and promptly correct discriminatory, harassing and/or retaliatory 9 behavior, if any. 10 11 12 10. TENTH AFFIRMATIVE DEFENSE (Failure to Mitigate) The claims in the Complaint are barred, in whole or in part, to the extent Plaintiff 13 failed to mitigate the injury or damages alleged therein. In particular, Defendant is informed and 14 believes, and on that basis alleges, that Plaintiff has not taken reasonable steps to mitigate his 15 alleged lost wages. 16 17 18 11. ELEVENTH AFFIRMATIVE DEFENSE (Offset) The claims in the Complaint are barred, in whole or in part, to the extent that 19 Plaintiff owes any debt or sum to Defendant. If it is determined that Defendant owes money to 20 Plaintiff pursuant to any cause of action alleged in the Complaint, Defendant is entitled to an offset 21 in the amount of any such debt or sum owed by Plaintiff to Defendant. Furthermore, if Plaintiff 22 sustained any damages as a result of the conduct alleged in the Complaint, which Defendant continues 23 to deny, then Defendant is entitled to an offset to the extent Plaintiff received income from other 24 sources, including but not limited to, California State Disability Insurance. 25 26 27 12. TWELFTH AFFIRMATIVE DEFENSE (Mixed Motive) Plaintiffs claims are barred, in whole or in part, because even if Plaintiff should prove 28 that a discriminatory motive was a factor motivating the challenged employment action(s), which 4 1627676.1 DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT Case 5:20-cv-03259 Document 1 Filed 05/13/20 Page 22 of 27 1 Defendant denies, the same employment action(s) would have been taken based on other legitimate 2 considerations. 3 4 5 13. THIRTEENTH AFFIRMATIVE DEFENSE (No Discriminatory Motive) Defendant's actions with respect to the subject matters alleged in the Complaint 6 were undertaken in good faith and for good cause after adequate investigation, with the absence of 7 malicious intent to injure Plaintiff, and constitute lawful, proper, and justified means to further the 8 sole purpose of Defendant to engage in and continue its lawful business activities. Furthermore, all 9 decisions made with respect to Plaintiffs employment were reasonably based on legitimate, non- 10 discriminatory reasons, and were made for proper, business-related reasons, which were neither 11 arbitrary, capricious, nor unlawful. By reason thereof, Plaintiff is barred, in whole or in part, from 12 recovery on the alleged causes of action contained in the Complaint. 13 14 15 14. FOURTEENTH AFFIRMATIVE DEFENSE (No Knowledge, Authorization, or Ratification) Defendant is not liable for Plaintiffs alleged damages because, if any person 16 engaged in any intentional, willful, or unlawful conduct as alleged in the Complaint, he or she did 17 so without the knowledge, authorization, or ratification of Defendant. 18 19 20 15. FIFTEENTH AFFIRMATIVE DEFENSE (Outside Scope of Employment) If any of Defendant's employees committed the acts alleged in the Complaint, 21 although such is not admitted, such acts were committed outside the scope of employment, and, 22 thus, Defendant is not liable for such acts. 23 24 25 16. SIXTEENTH AFFIRMATIVE DEFENSE (At-Will Employment) The claims in the Complaint are barred, in whole or in part, because Plaintiffs 26 employment relationship with Defendant was governed by California Labor Code section 2292 27 and, therefore, was terminable at will, so that Plaintiff has no claim for relief based on the 28 termination of his employment. 1627676.1 5 DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT 1 2 3 Case 5:20-cv-03259 Document 1 Filed 05/13/20 Page 23 of 27 SEVENTEENTH AFFIRMATIVE DEFENSE (No Punitive Damages) 17. Plaintiff is precluded from recovering punitive damages from Defendant, in whole or in 4 part, under the applicable provisions of the law, including but not limited to section 3294 of the 5 California Civil Code because an agent or employee of Defendant (i) did not engage in any unlawful 6 conduct toward Plaintiff; (ii) did not engage in any conduct toward Plaintiff with malice, oppression or 7 fraud; and/or (iii) such conduct was not performed, authorized, or ratified by an officer, director or 8 managing agent of Defendant. 9 10 11 18. EIGHTEENTH AFFIRMATIVE DEFENSE (Procedural Due Process) Plaintiffs Complaint, to the extent that it seeks punitive or exemplary damages, 12 violates the rights of Defendant to procedural due process under the Fourteenth Amendment to the 13 United States Constitution and under the Constitution of the State of California, and the excessive 14 fines and cruel and unusual punishment clauses of the Eighth Amendment to the United States 15 Constitution and, therefore, fails to state a cause of action upon which punitive or exemplary 16 damages may be awarded. 17 18 19 20 21 22 19. 20. NINETEENTH AFFIRMATIVE DEFENSE (Waiver) Plaintiffs causes of action are barred, in whole or in part, by the doctrine of waiver. TWENTIETH AFFIRMATIVE DEFENSE (Statutes of Limitations) The alleged claims set forth in the Complaint are barred, in whole or in part, by the 23 applicable statutes of limitations, including, but not limited to California Government Code 24 sections 12960, 12965(b) and California Code of Civil Procedure sections 338,343. 25 26 27 21. TWENTY-FIRST AFFIRMATIVE DEFENSE (Laches) The alleged claims set forth in the Complaint are barred, in whole or in part, by the 28 doctrine of laches because Plaintiff failed to raise his claims in a timely fashion in a manner that 6 1627676.1 DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT Case 5:20-cv-03259 Document 1 Filed 05/13/20 Page 24 of 27 1 has prejudiced Defendant, including by the loss of evidence and the unavailability of witnesses. 2 3 4 22. TWENTY-SECOND AFFIRMATIVE DEFENSE (Failure to Timely/Properly Request Accommodation) Plaintiff cannot maintain his causes of action, in whole or in part, because Plaintiff 5 did not timely and/or properly request accommodation from Defendant and/or did not properly 6 engage in the interactive process with Defendant. 7 8 9 23. TWENTY-THIRD AFFIRMATIVE DEFENSE (Undue Hardship) The Complaint is barred, in whole or in part, because the accommodation Plaintiff 10 requested, if any, would have been unreasonable and/or imposed an undue hardship to the 11 operation of Defendant's business. 12 13 14 24. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Employee Cannot Perform Duties/No Reasonable Accommodation) Plaintiffs claims are barred, in whole or in part, to the extent that Plaintiff was 15 unable to perform the essential job duties and functions of his position with or without a reasonable 16 accommodation. 17 18 19 25. TWENTY-FIFTH AFFIRMATIVE DEFENSE (Plaintiff is Not A Qualified Individual With a Disability) Plaintiffs causes of action are barred because Plaintiff was not a qualified 20 individual with a disability during the time periods that he alleges that Defendant violated FEHA. 21 22 23 26. TWENTY-SIXTH AFFIRMATIVE DEFENSE (No Protected Activity) Plaintiff was not engaged in protected activity, and thus cannot state a claim for 24 retaliation against Defendant. 25 26 27 27. TWENTY-SEVENTH AFFIRMATIVE DEFENSE (No Adverse Employment Action) Plaintiff did not suffer an adverse employment action with respect to one or more of his 28 claims alleged in the Complaint. 7 1627676.1 DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT 1 2 3 Case 5:20-cv-03259 Document 1 Filed 05/13/20 Page 25 of 27 TWENTY-EIGHTH AFFIRMATIVE DEFENSE (Lack of Causal Link) 28. Plaintiffs claims are barred, in whole or in part, because Plaintiff is unable to establish a 4 causal link between his alleged protected activity or disability and any adverse employment action 5 because no actions were taken against Plaintiff because of his disability or protected activity. 6 7 8 29. TWENTY-NINTH AFFIRMATIVE DEFENSE (Bad Faith Claims) The allegations and claims asserted in the Complaint have always been and continue 9 to be frivolous, groundless and without merit. Plaintiff has brought this action in bad faith. 10 Therefore, the relief requested is precluded and Defendant is entitled to recover its reasonable 11 expenses, including attorney's fees, incurred herein, as a matter oflaw, pursuant to California Code 12 of Civil Procedure section 128.5. 13 14 15 30. TIDRTIETH AFFIRMATIVE DEFENSE (No Attorney Fees) Plaintiff is precluded from recovering attorney's fees and costs, in whole or in part, 16 under the applicable provisions of the law. 17 18 19 31. THIRTY-FIRST AFFIRMATIVE DEFENSE (Additional Defenses) Defendant has not at this time been able to fully evaluate all of the affirmative 20 defenses that may be applicable to this action and each claim therein. On this basis, and in addition 21 to those affirmative defenses set forth above, Defendant reserves the right to assert additional 22 affirmative defenses, if applicable. Defendant has not completed its investigation of the facts in 23 this matter, has not completed discovery in this matter, and has not completed preparation for trial. 24 The affirmative defenses asserted herein are based on Defendant's' knowledge, information and 25 belief at this time, and Defendant specifically reserves the right to modify, amend or supplement at 26 any time any affirmative defense contained herein. 27 Ill 28 /// 1627676.1 8 DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT 1 2 3 4 5 6 Case 5:20-cv-03259 Document 1 Filed 05/13/20 Page 26 of 27 PRAYER WHEREFORE, Defendant prays as follows: 1. 2. 3. 4. That Plaintiffs Complaint be dismissed, in its entirety, without prejudice; That Plaintiff take nothing by reason thereof; That judgment be entered in favor of Defendant; That Defendant be awarded costs of suit and reasonable attorneys' fees to the extent 7 provided by law; and 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5. For such other and further relief as the Court deems just and proper. Dated: May 12, 2020 1627676.1 CAROTHERS DISANT£ & FREUDENBERGER LLP By: M. Leah Cameron Attorneys for Defendant SJBH, LLC (erroneously sued as SAN JOSE BEHAVIORAL HEALTHLLC) 9 DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT 1 2 3 4 Case 5:20-cv-03259 Document 1 Filed 05/13/20 Page 27 of 27 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO. I, the undersigned, declare that I am employed in the aforesaid County, State of California. 5 I am over the age of 18 and not a party to the within action. My business address is 600 Montgomery Street, Suite 440, San Francisco, CA 94111. On May 12, 2020, I served upon the 6 interested party(ies) in this action the following document described as: 7 8 9 10 11 12 13 DEFENDANT SJBH, LLC'S ANSWER TO PLAINTIFF JAMES BROGAN'S COMPLAINT FOR DAMAGES By the following method: Andy Katz Law Offices of Andy Katz 2001 Addison Street, Suite 300 Berkeley, CA 94707 E-MAIL: andv@andvkatzlaw.com. cristina(a),andvkatzlaw.com For processing by the following method: 14 [x] (e-mail by court order) Based on a court order, parties are to accept service by electronic transmission, I caused the documents to be sent to the persons at the electronic notification 15 addresses listed above. 16 I declare under penalty of perjury under the laws of the State of California that the 17 18 19 20 21 22 23 24 25 26 27 28 CAROTHERS DiSANTE & FREUDENBERGER LLP foregoing is true and correct. Executed on May 12, 2020. Morgan Krutulis (Type or print name) 1627676.1 10 DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT JS-CA.ND 44 (Rev. 07119) Case 5:20-cv-03259 Document 1-1 Filed 05/13/20 Page 1 of 1 CIVIL COVER SHEET The JS-CAND 44 civil cover sheet and the infonnation contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved in its original form by the Judicial Conference of the United States in September 1974, is required for the Clerk of Court to initiate the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) (b) County of Residence of First Listed Plaintiff (EXCEPT IN U.S. PLAINTIFF CASES) Alameda County ( C) Attorneys (Firm Name, Address, and Tele11hone Number) Law Offices of Andy Katz I Anoy Katz I (510) 465-4400 2001 Addison Street, Suite 300, Berkeley, CA 94704 sJlm~ANTS (erroneously sued as San Jose Behavioral Health LLC) County of Residence of First Listed Defendant (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. Attorneys (If Known) Carothers DiSante & Freudenberger LLP I Teresa Ghali ; Leah Cameron 600 Montgomery Street, Suite 440, San Francisco, CA 94111 (415) 981-3233 II. BASIS OF JURISDICTION (Place an "X" in One Box Only) III. cmzENSIDP OF PRINCIPAL p ARTIES (Place an "X" in One Box/or Plaintiff (For Diversity Cases Only) and One Box/or Defendant) PTF DEF PTF DEF U.S. Government Plaintiff +;' 3 Federal Question (U.S. Government Not a Party) Citizen of This State X I I Incorporated or Principal Place • ·4 '.·2 U.S. Government Defendant :~4 Diversity (Indicate Citizenship of Parties in Item Ill) IV. NATURE OF SUIT (Place an "X"inOneBoxOnly) ;_.; Citizen of Another State Citizen or Subject of a Foreign Country 110 Insurance l'ERSONAL INJJ!RY ,. .. l'ERSONAL INJURY . ·1;t;2s Drug Related Seizure of ·:-,·1120 Marine Property 21 USC § 881 ·13 IO Airplane ···c·•·: 365 Personal Injury- Product f:,;~130 Miller Act ./J31 S Airplane Product Liability Liability 690Other 140 Negotiable Instrument ; . 320 Assault, Libel & Slander (;;:; 367 Health Care/ :;;;,,, )t)ABi;J~i . <;;; ,A: 150 Recovery of Pharmaceutical Personal ~"710 Fair Labor Standards Act · ·J30 Federal Employers' Injury Product Liability Overpayment Of Liability . •720 Labor/Management Veteran's Benefits ,,,340 Marine \'.;368 Asbestos Personal Injury Relations IS I Medicare Act Product Liability ,345 Marine Product Liability 740 Railway Labor Act 152 Recovery of Defaulted · 350 Motor Vehicle PJ!.RSONAl'.>PimPERTY ' 751 Family and Medical Student Loans (Excludes 3 70 Other Fraud Veterans) ,";,;' 355 Motor Vehicle Product Leave Act I 53 Recovery of Liability '':'371 Truth in Lending · 790 Other Labor Litigation ,,.,,, 360 Other Personal Injury ::31380 Other Personal Property -i::'791 Employee Retirement Overpayment :·=362 Personal Injury -Medical Damage Income Security Act of Veteran's Benefits Malpractice 385 Property Damage Product ····•,*-iGRA'iiON .· J60 Stockholders' Suits Liability ... 190 Other Contract , / ... ~~..ra~ hfm,;tffa :'1,,msONEli1:11m1nNs • 462 Naturalization : ··· 195 Contract Product Liability ~-':/ Application 196 Franchise 440 Other Civil Rights HABEAS CORPUS .>465 Other Immigration !fu\?: • Qll.AL'.PROl'ftTY ;':441 Votmg ';463 Alien Detainee Actions """'""' >t442 Employment '"'510 Motions to Vacate .2 IO Land Condemnation "443 Housing/ Sentence .A·¼'220 Foreclosure Accommodations 530 General · .;,230 Rent Lease & Ejectment 445 Amer. w/Disabilities- ;}\535 Death Penalty 240 Torts to Land Employment !l.'446 Amer. w/Disabilities-Other OTHER 245 Tort Product Liability : '540 Mandamus & Other 290 All Other Real Property MT448 Education 550 Civil Rights 555 Prison Condition , 560 Civil Detainee- Conditions of Confinement V. ORIGIN (Place an "X" in One Box Only) of Business In This State Incorporated and Principal Place of Business In Another State Foreign Nation ' 22 Appeal 28 use § 158 t 4375 False Claims Act ·;,123 Withdrawal 28 USC 376QuiTam(31 USC § 157 § 3729(a)) • PROPJ!.Rttm(mTsr,1 400 State Reapportionment 4 IO Antitrust 820 Copyrights 830 Patent :-§y430 Banks and Banking ·''"450 Commerce 835 Patent-Abbreviated New · }~60 Deportation Drug Application 840 Trademark <·470 Racketeer Influenced & Corrupt Organizations SOCIAL SE.CURITY tY ;, ,480 Consumer Credit 861 HIA (1395ft) ""'·,,,485 Telephone Consumer •862 Black Lung (923) Protection Act : 863 DIWC/DIWW (40S(g)) .&490 Cable/Sat TV 864 SSID Title XVI · 850 Securities/Commodities/ 865 RS I ( 40S(g)) Exchange FEDERAL TAX:;SIHTS :;tr: ·.890 Other Statutory Actions \,;/89 I Agricultural Acts 870 Taxes (U.S. Plaintiff or }. 893 Environmental Matters Defendant) 871 IRS-Third Party 26 USC cr:895 Freedom oflnformation § 7609 Act 896 Arbitration . 899 Administrative Procedure Act/Review or Appeal of Agency Decision · • 950 Constitutionality of State Statutes Original X 2 Removed from Proceeding State Court Remanded from Appellate Court 4 Reinstated or Reopened Transferred from Another District (specify) 6 Multidistrict : ;' 8 Multidistrict Litigation-Transfer Litigation-Direct File VI. CAUSE OF ACTION C_ite,\l)~,u.s. Civil Stat~te under wJ1i.ch vou are filing (Do not citr illrisdictional sta/Utes unless diversitv): 2SJ~:,<:;; l~I (b) : ;1t> . . .. · Brie.f des of cause: , ,~,\0:~s~;,.- VII. REQUESTED IN COMPLAINT: . CHECK IF THIS IS A CLASS ACTION UNDER RULE 23, Fed. R. Civ. P. VIII. RELATED CASE(S), IF ANY (See instructions): JUDGE IX. DIVISIONAL ASSIGNMENT (Civil Local Rule 3-2) DEMANDS (Place an "X" in One Box Only) SAN FRANCISCO/OAKLAND CHECK YES only if demanded in complaint: JURY DEMAND: X Yes , ... No DOCKET NUMBER x SANJOSE EUREKA-MCKINLEYVILLE DATE 05/13/2020 SIGNATURE OF ATTORNEY OF RECORD /s!Leah Cameron Case 5:20-cv-03259 Document 1-2 Fited 05/13/20 Page 1 of 3 1 CAROTHERS DISANTE & FREUDENBERGER LLP Teresa W. Ghali, State Bar No. 252961 2 tghali@cdflaborlaw.com M. Leah Cameron, State Bar No. 274637 3 lcameron@cdflaborlaw.com 600 Montgomery Street, Suite 440 4 San Francisco, CA 94111 Telephone: (415) 981-3233 5 Attorneys for Defendant 6 SJBH, LLC erroneously sued as SAN JOSE BEHAVIORAL HEALTHLLC 7 8 9 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 11 JAMES BROGAN, ) Case No. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CAR0TIIERS OiSANTE k F1tr..tmf.NJ11,aa1:1t LLP Plaintiff, vs. SAN JOSE BEHAVIORAL HEALTH LLC, Defendant. 1628231.1 ) ) Santa Clara County Superior Court ) Case No. 19cv359746 ) ) DECLARATION OF SEAN PETERSON IN ) SUPPORT OF DEFENDANT SJBH, LLC'S ) NOTICE OF REMOVAL ) ) Filed concurrently with: ) - Civil Cover Sheet; ) - Notice of Removal; ) - Deel. of M. Leah Cameron; and ) - Certificate of Interested Parties ) ) Action Filed: December 5, 2019 ) DECLARATION OF SEAN PETERSON IN SUPPORT OF DEFENDANT'S NOTICE OF REMOVAL 1 2 3 Case 5:20-cv-03259 Document 1-2 Filed 05/13/20 Page 2 of 3 DECLARATION OF SEAN PETERSON I, Sean Peterson, declare as follows: I am employed by SJBH, LLC ("SJBH") as Chief Executive Officer. I have held 4 this position since January 2018. Prior to that, from June through December of 2017, I was 5 employed as SJBH's Chief Operations Officer. I have personal knowledge of the facts set forth in 6 this Declaration and, if called as a witness, could and would testify competently to such facts under 7 oath. The testimony I provide herein is based upon personal knowledge and payroll records I have 8 reviewed from SJBH. 9 2. SJBH is a Delaware limited liability company with its principal place of business in 10 Franklin, Tennessee. The sole member and 100% owner of SJBH is Acadia Healthcare Company, 11 Inc., a publicly traded Delaware corporation with its principal place of business in Tennessee. 12 13 3. I was Mr. Brogan's direct supervisor during the entirety of his employment at SJBH and as such am personally aware of Mr. Brogan's employment compensation information. As 14 15 COO and CEO of SJBH, I have had and continue to have access to business records and human 16 resources records regarding employees and former employees, including personnel records and 17 payroll records for James Brogan, a former employee. These records are kept in the ordinary 18 course of business. I have also reviewed payroll records pertaining to Mr. Brogan, and Ms. 19 Brogan's salary at the time of his separation from SJBH on December 8, 2017 was $100,000.16 20 21 annually, which equates to $48.077 per hour, since he was scheduled to work on a full-time basis of 40 hours per week. 22 23 4. Based on my review of Mr. Brogan's personnel file, during the entirety of Mr. 24 Brogan's employment with SJBH, Mr. Brogan's personnel documents listed a California address 25 for his place ofresidence. 26 27 28 C.uonlF.11:J. DiSi\N'U:, & FREUDENDlROEI. LLP 1628231.1 2 DECLARATION OF SEAN PETERSON IN SUPPORT OF DEFENDANT'S NOTICE OF REMOVAL Case 5:20-cv-03259 Document 1-2 Filed 05/13/20 Page 3 of 3 1 I declare under penalty of perjury under the laws of the Slate of California and the United 2 States of America, that the foregoing is true and correct. Executed 011 this 1~~ day of May, 3 2020. 4 5 6 7 8 9 lO 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C\il:01;.;>;,i.$DlS,-,,-sre&. P.u.lJ.lli:};Ul:ttUl:.ll lJ.p 1628231.l 3 ,,,-, I r 1an Peterson DECLARATION OF SEAN PBTERSON IN SUPPORT OF DEFEl\'DANT'S NOTICE OF REMOVAL Case 5:20-cv-03259 Document 1-3 Filed 05/13/20 Page 1 of 4 1 CAROTHERS DISANTE & FREUDENBERGER LLP Teresa W. Ghali, State Bar No. 252961 2 tghali@cdflaborlaw.com M. Leah Cameron, State Bar No. 274637 3 lcameron@cdflaborlaw.com 600 Montgomery Street, Suite 440 4 San Francisco, CA 94111 Telephone: (415) 981-3233 5 Attorneys for Defendant 6 SJBH, LLC (erroneously sued as SAN JOSE BEHAVIORAL HEALTHLLC) 7 8 9 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 11 JAMES BROGAN, ) Case No. ) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CAROTHERS D1S ANTE & FREUDENBERGER LLP Plaintiff, vs. SAN JOSE BEHAVIORAL HEALTH LLC, Defendant. 1630064.1 ) Santa Clara County Superior Court ) Case No. 19cv359746 ) ) DECLARATION OF M. LEAH ) CAMERON IN SUPPORT OF ) DEFENDANT SJBH, LLC'S NOTICE OF ) REMOVAL ) ) Filed concurrently with: ) - Civil Cover Sheet; ) - Notice of Removal; ) - Deel. of Sean Peterson; and ) - Certificate of Interested Parties ) ) Action Filed: December 5, 2019 ) DECLARATION OF M. L. CAMERON IN SUPPORT OF DEFENDANT'S NOTICE OF REMOVAL 1 2 3 Case 5:20-cv-03259 Document 1-3 Filed 05/13/20 Page 2 of 4 DECLARATION OF M. LEAH CAMERON I, M. Leah Cameron, declare as follows: 1. I am an attorney at law duly licensed to practice before the courts in the State of 4 California. I am a partner with the law firm of Carothers DiSante & Freudenberger LLP, counsel 5 of record for Defendant SJBH, LLC ("SJBH"). I have personal knowledge of the facts set forth in 6 this Declaration, and, if called and sworn as a witness, I could and would testify competently to 7 such facts under oath. I submit this Declaration in support of SJBH's Notice of Removal. 8 2. On April 13, 2020, SJBH, through counsel, acknowledged service of the summons 9 and complaint by timely completing an Acknowledgement of Receipt form pursuant to California 10 Code of Civil Procedure section 415.30. Attached hereto as Exhibit 1 is a true and correct copy of 11 the completed Notice and Acknowledgment of Receipt form, which was completed and sent to 12 Plaintiffs Counsel on April 13, 2020. 13 14 I declare under penalty of perjury under the laws of the State of California and the United 15 States of America that the foregoing is true and correct. 16 17 18 19 20 21 22 23 24 25 26 27 28 CAROTHERS D1SANTE & FREUDENBERGER LLP 1630064.1 Executed this 13th day of May, 2020, at Petaluma, California. 2 M. Leah Cameron DECLARATION OF M. L. CAMERON IN SUPPORT OF DEFENDANT'S NOTICE OF REMOVAL Case 5:20-cv-03259 Document 1-3 Filed 05/13/20 Page 3 of 4 EXHIBIT.I Case 5:20- - 59 Document 1-3 Fil d 05/13/20 Page 3 of 4 I .1 Case 5:20-cv-03259 Document 1-3 Filed 05/13/20 Page 4 of 4 POS-015 ATTORNEY OR PARTY WITHOUT ATTORNEY: STATE BAR NO: 264941 FOR COURT USE ONI. Y NAME: Andy Katz FIRM NAME: Law Offices of Andy Katz STREET ADDRESS: 2001 Addison Street, Suite 300 cITY, Berkeley STATE: CA ZIPCODE: 94704 TELEPHONE NO.: (510) 465-4400 FAXNO.: (510)679-3277 E-MAIL ADDRESS: andy@andykatzlaw.com ATTORNEY FOR (Name): SUPERIOR COURT OF CALIFORNIA, COUNTY OF Santa Clara STREET ADDRESS: 191 North First Street MAILING ADDRESS: CITY AND 2IP CODE: San Jose, CA 95113 BRANCH NAME: Downtown Superior Court Plaintiff/Petitioner: James Brogan DefendanURespondent: San Jose Behavioral Health LLC CASE NUMBER: NOTICE AND ACKNOWLEDGMENT OF RECEIPT-CIVIL 19CV359746 TO (insert name of party being served): _T:...:e:.:..re:;s~a=-W=-=-=-. -=G:.:ch:.::a.:.:..li _________________________ _ NOTICE The summons and other documents identified below are being served pursuant to section 415.30 of the California Code of Civil Procedure. Your failure to complete this form and return it within 20 days from the date of mailing shown below may subject you (or the party on whose behalf you are being served) to liability for the payment of any expenses incurred in serving a summons on you in any other manner permitted by law. If you are being served on behalf of a corporation, an unincorporated association (including a partnership), or other entity, this form must be signed by you in the name of such entity or by a person authorized to receive service of process on behalf of such entity. In all other cases, this form must be signed by you personally or by a person authorized by you to acknowledge receipt of summons. If you return this form to the sender, service of a summons is deemed complete on the day you sign the acknowledgment of receipt below. Date of mailing: March 24, 2020 ---~---------------- Cristina Gonzalez ► Isl Cristina Gonzalez (TYPE OR PRINT NAME) (SIGNATURE OF SENDER-MUST NOT BE A PARTY IN THIS CASE) ACKNOWLEDGMENT OF RECEIPT This acknowledges receipt of (to be completed by sender before mailing): 1. CK] A copy of the summons and of the complaint. 2. [KJ Other (specify): Civil Case Cover Sheet Summons Complaint (Filed-Stamped Copy) ADR Packet (To be completed by recipient): Date this form is signed: -'-A-"pc.-C.r"-il-'-1-=-3'--', 2=-0c..:2~0'------------ Teresa W. Ghali, counsel for San Jose Behavioral Health LLC ► (TYPE OR PRINT YOUR NAME AND NAME OF ENTITY, IF ANY, ON WHOSE BEHALF THIS FORM IS SIGNED) (SIGNATURE OF PERSON ACKNOWLEDGING RECEIPT, WITH TITLE IF ACKNOWLEDGMENT IS MADE ON BEHALF OF ANOTHER PERSON OR ENTITY) Form Adopted for Mandatory Use Judicial Council of California POS-015 [Rev. January 1, 2005] NOTICE AND ACKNOWLEDGMENT OF RECEIPT - CIVIL I Printthis form I L~c1v~ thi~ form J Page 1 of 1 Code of Civil Procedure, §§ 415.30, 417.10 www.courtinfo.ca.gov Case 5:20-cv-03259 Document 1-4 Filed 05/13/20 Page 1 of 2 1 CAROTHERS DISANTE & FREUDENBERGER LLP Teresa W. Ghali, State Bar No. 252961 2 tghali@cdflaborlaw.com M. Leah Cameron, State Bar No. 274637 3 lcameron@cdflaborlaw.com 600 Montgomery Street, Suite 440 4 San Francisco, CA 94111 Telephone: (415) 981-3233 5 Attorneys for Defendant 6 SJBH, LLC erroneously sued as SAN JOSE BEHAVIORAL HEALTHLLC 7 8 9 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 11 JAMES BROGAN, ) Case No. ) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CAROTHERS DiSANTE & FREL'DENBERGER LLP Plaintiff, vs. SAN JOSE BEHAVIORAL HEALTH LLC, Defendant. 1628265.1 ) Santa Clara County Superior Court ) Case No.: 19cv359746 ) ) CERTIFICATE OF INTERESTED ) ENTITIES OR PERSONS ) ) Filed concurrently with: ) - Civil Cover Sheet; ) - Notice of Removal; ) - Deel. of Leah Cameron; and ) - Deel. of Sean Peterson ) ) Action Filed: December 5, 2019 ) CERTIFICATE OF INTERESTED ENTITIES OR PERSONS Case 5:20-cv-03259 Document 1-4 Filed 05/13/20 Page 2 of 2 1 Pursuant to Civil L.R. 3-15 and Federal Rule of Civil Procedure 7.1, the undersigned, 2 counsel of record for Defendant SJBH, LLC, certifies that the following listed persons, associations 3 of persons, firms, partnerships, corporations (including parent corporations) or other entities (i) 4 have a financial interest in the subject matter in controversy or in a party to the proceeding, or (ii) 5 have a non-financial interest in that subject matter or in a party that could be substantially affected 6 by the outcome of this proceeding: 7 1. Acadia Healthcare Company, Inc., a publicly traded Delaware corporation, is the sole 8 member and 100% owner of SJBH. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dated: May 13, 2020 1628265.1 CAROTHERS DISANTE & FREUDENBERGER LLP ~~~ By:---------------- M. Leah Cameron Attorneys for Defendant SJBH, LLC ( erroneously sued as SAN JOSE BERA VI ORAL HEALTHLLC) 2 CERTIFICATE OF INTERESTED ENTITIES OR PERSONS Case 5:20-cv-03259 Document 2 Filed 05/13/20 Page 1 of 3 1 CAROTHERS DISANTE & FREUDENBERGER LLP Teresa W. Ghali, State Bar No. 252961 2 tghali@cdflaborlaw.com M. Leah Cameron, State Bar No. 274637 3 lcameron@cdflaborlaw.com 600 Montgomery Street, Suite 440 4 San Francisco, CA 94111 Telephone: (415) 981-3233 5 Attorneys for Defendant 6 SJBH, LLC (erroneously sued as SAN JOSE BEHAVIORAL HEALTHLLC) 7 8 9 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 11 JAMES BROGAN, ) Case No. ) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CAROTHERS DiSANTE & FREUDENBERGER LLP Plaintiff, vs. SAN JOSE BEHAVIORAL HEALTH LLC, Defendant. 1628302.1 ) Santa Clara County Superior Court ) Case No.: 19cv359746 ) ) CERTIFICATE OF SERVICE IN ) SUPPORT OF DEFENDANT SJBH, LLC'S ) NOTICE OF REMOVAL ) ) Filed concurrently with: ) - Civil Cover Sheet; ) - Notice of Removal; ) - Deel. of Leah Cameron; ) - Deel. of Sean Peterson; and ) - Certificate oflnterested Parties ) ) Action Filed: December 5, 2019 ) CERTIFICATE OF SERVICE IN SUPPORT OF DEFENDANT SJBH, LLC'S NOTICE OF REMOVAL 1 2 3 Case 5:20-cv-03259 Document 2 Filed 05/13/20 Page 2 of 3 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO. I, the undersigned, declare that I am employed in the aforesaid County, State of California. 4 I am over the age of 18 and not a party to ;the within action. My business address is 600 Montgomery Street, Suite 440, San Francisco, CA 94111. On May 13, 2020, I served upon the 5 interested party(ies) in this action the following document described as: 6 CIVIL CASE COVER SHEET 7 DEFENDANT SJBH, LLC'S NOTICE OF REMOVAL 8 DECLARATION OF SEAN PETERSON IN SUPPORT OF DEFENDANT SJBH, LLC'S NOTICE OF REMOVAL 9 DECLARATION OF M. LEAH CAMERON IN SUPPORT OF DEFENDANT SJBH, LLC'S 10 NOTICE OF REMOVAL 11 CERTIFICATE OF INTERESTED ENTITIES OR PERSONS 12 CERTIFICATE OF SERVICE IN SUPPORT OF DEFENDANT SJBH, LLC'S NOTICE OF REMOVAL 13 14 15 16 17 18 19 20 21 22 23 24 25 By the following method: Andy Katz Law Offices of Andy Katz 2001 Addison Street, Suite 300 Berkeley, CA 94707 E-MAIL: andy@andykatzlaw.com, cristina@andykatzlaw.com For processing by the following method: 1K] By placing such envelope(s) designated by the appropriate express service carrier with delivery fees prepaid or otherwise provided for into Carothers DiSante & Freudenberger LLP's interoffice mail for collection and express delivery pursuant to ordinary business practice. I am familiar with the office practice of Carothers DiSante & Freudenberger LLP for collecting and processing express deliveries, which practice is that when express deliveries are deposited with the Carothers DiSante & Freudenberger LLP personnel responsible for handling express deliveries, such mail is deposited that same day in a box or other facsimile regularly maintained by Federal Express or other like facility regularly maintained for overnight delivery. 1K] (e-mail) I caused the documents to be sent to the persons at the electronic notification addresses listed above. 26 I certify that I am employed in the office of a member of the bar of this Court at whose 27 28 CAROTHERS DiSANTE & FREUDENBERGER LLP direction the service was made. Executed on May 13, 2020. 1628302.1 2 CERTIFICATE OF SERVICE IN SUPPORT OF DEFENDANT SJBH, LLC'S NOTICE OF REMOVAL 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CAROTHERS OiSANTE & FREUDENBERGER LLP 1628302.1 Case 5:20-cv-03259 Document 2 Fited 05/13/20 Page 3 of 3 I declare under penalty of perjury that the foregoing is true and correct. Morgan Krutulis (Type or print name) 3 CERTIFICATE OF SERVICE IN SUPPORT OF DEFENDANT SJBH, LLC'S NOTICE OF REMOVAL