Removal to Federal Court

Cal. Super. - 6th Dist.April 30, 2020

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 200V366421 Santa Clara - Civil P. Herna SEYFARTH SHAW LLP Electronically Filed Mark P. Grajski (SBN 178050) by Superior Court of CA, mgrajSki@S€yfafth-00m County of Santa Clara, Tlffany T.fTII:t%1’l (SBN 294213) on 6/24/2020 12.40 PM ttran se a .com . 400 gpgol Mall, Suite 2350 ReVIewed By: P. Hernandez Sacramento, California 95814-4428 case #ZOCV366421 Telephone: (916) 448-0159 Envelope: 4499866 Facsimile: (916)558-4839 Attorneys for Defendant COSTCO WHOLESALE CORPORATION SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ANTHONY KRISTY, Case N0. 20CV366421 Plaintiff, DEFENDANT’S NOTICE TO SUPERIOR COURT AND ADVERSE PARTY OF V. NOTICE OF REMOVAL OF ACTION TO THE U.S. DISTRICT COURT COSTCO WHOLESALE CORPORATION, a Washington Corporation; and DOES 1 through 50, inclusive, Complaint Filed: April 30, 2020 Defendants. TO THE CLERK OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF SANTA CLARA, AND TO PLAINTIFF AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that 0n June 22, 2020, Defendant COSTCO WHOLESALE CORPORATION (“Costco”) filed a Notice ofRemoval under 28 U.S.C. §§ 1441, 1446 and 1332 in the office of the Clerk 0f the United States District Court for the Northern District 0f California, San Jose Division, 280 South First Street, San Jose, CA 95 1 13-3002. This matter now bears Case No. 5:20-CV- 04124-VDK. A true and correct copy of the Notice 0fRemoval is attached hereto and served herewith as Exhibit 1, and includes all state court pleadings served upon Costco and filed in this action. /// /// /// 1 DEFENDANT’S NOTICE TO SUPERIOR COURT AND ADVERSE PARTY OF NOTICE OF REMOVAL 64281888v.1 ndez VD 00 \J Ch 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Please take filrther notice that, pursuant t0 28 U.S.C. § 1446, the filing of the Notice ofRemoval with the United States District Court for the Northern District of California constitutes removal 0f this action and the Superior Court may proceed no further unless and until the case is remanded. DATED: June 24, 2020 Respectfully submitted, SEYFARTH/SI-I_A L P fl]By: I ‘ ‘ Mark Pg/Cééjskic?“ Tiffany T. Tran Attorneys for Defendant COSTCO WHOLESALE CORPORATION 2 DEFENDANT’S NOTICE TO SUPERIOR COURT AND ADVERSE PARTY OF NOTICE OF REMOVAL 64281888vJ EXHIBIT 1 \OOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:20-cv-04124-VKD Document 1 Filed 06/22/20 Page 1 of 9 SEYFARTH SHAW LLP Mark P. Grajski (SBN 178050) mgraj ski@seyfarth.com Tiffany T. Tran (SBN 294213) ttran@seyfarth.com 400 Capitol Mall, Suite 2350 Sacramento, California 958 14-4428 Telephone: (9 1 6) 448-0 1 59 Facsimile: (916) 558-4839 Attorneys for Defendant COSTCO WHOLESALE CORPORATION UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ANTHONY KRISTY, Case N0. Plaintiff, DEFENDANT COSTCO WHOLESALE CORPORATION’S NOTICE OF V. REMOVAL OF CIVIL ACTION TO THE U.S. DISTRICT COURT COSTCO WHOLESALE CORPORATION, a Washington Corporation; and DOES 1 through 50, inclusive, Complaint Filed: April 30, 2020 Defendants. TO THE U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA AND TO PLAINTIFF AND HIS ATTORNEY OF RECORD: PLEASE TAKE NOTICE that Defendant Costco Wholesale Corporation (“Costco”) is filing this Notice of Removal pursuant to 28 U.S.C. §§ 1332, 1441(a), and 1446, based on diversity of citizenship jurisdiction, to effect the removal of the above-captioned action from the California Superior Court, County of Santa Clara to the United States District Court for the Northern District 0f California. Removal is proper for the following reasons: /// /// /// /// 1 DEFENDANT’S NOTICE OF REMOVAL 64281897v.1 \OOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:20-cv-04124-VKD Document 1 Filed 06/22/20 Page 2 of 9 I. BACKGROUND 1. This removal involves an action that was filed in the Superior Court of the State 0f California, County 0f Santa Clara, entitled, “ANTHONYKRISTY, Plaintifif v. COSTCO WHOLESALE CORPORATION andDOES I through 50, inclusive Defendants” (“Complaint”) designated Santa Clara County Superior Court Case N0. 20CV366421. 2. Plaintiff Anthony Kristy filed the Complaint 0n April 30, 2020. 3. The Complaint alleges causes of action for (1) perceived disability discrimination in Violation 0f the FEHA; (2) associational disability discrimination in Violation 0f the FEHA; (3) disability harassment in Violation 0f the FEHA; (4) wrongful/constructive termination in Violation of public policy; (5) intentional infliction of emotional distress; (6) negligent infliction of emotional distress; (7) invasion 0f privacy; and (8) defamation. 4. On May 21, 2020, Plaintiff served Costco’s agent for service With the Summons, Complaint, Civil Case Cover Sheet, and the Notice of Case Management Conference in the State Court Action. A true and correct copy 0f the Summons, Complaint, Civil Case Cover Sheet, and the Notice of Case Management Conference is attached as Exhibit 1. 5. Costco answered the Complaint on June 22, 2020. A true and correct copy of the Answer is attached hereto as Exhibit 2. II. TIMELINESS OF REMOVAL 6. This notice 0f removal is timely filed as it is filed less than one year from the date this action was commenced and Within thirty days of service upon Costco of the Complaint. 28 U.S.C. § 1446(b); Murphy Bros., Inc. v. Michetti Pipe Stringing, Ina, 119 S. Ct. 1322 (1999) (thirty-day deadline t0 remove commences upon service of the summons and complaint). III. DIVERSITY JURISDICTION 7. This Court has original jurisdiction 0f this action under 28 U.S.C. § 1332(a)(1). As set forth below, this action is removable pursuant t0 the provisions 0f 28 U.S.C. § 1441(a) as the amount in controversy is in excess 0f $75,000.00, exclusive of interest and costs, and is between citizens 0f different states. /// 2 DEFENDANT’S NOTICE OF REMOVAL 64281897v.1 \OOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:20-cv-04124-VKD Document 1 Filed 06/22/20 Page 3 of 9 A. Plaintiff’s Citizenship 8. Plaintiff is a resident and citizen of the State of California. For diversity purposes, a natural person is a “citizen” of the state in which he or she is domiciled. Kantor v. Wellesley Galleries, Ltd, 704 F.2d 1088, 1090 (9th Cir. 1983). For purposes of diversityjurisdiction, citizenship is determined by the individual’s domicile at the time the lawsuit is filed. Armstrong v. Church 0f Scientology Int’l, 243 F.3d 546, 546 (9th Cir. 2000) (Citing Lew v. Moss, 797 F.2d 747, 750 (9th Cir. 1986)). A person’s domicile is the place he or she resides with the intent t0 remain indefinitely. Kanter v. Warner-Lambert Co., 265 F.3d 853, 857 (9th Cir. 2001). Residence is prima facie evidence 0f domicile. State Farm Mut. Auto Ins. C0. v. Dyer, 29 F.3d 514, 520 (10th Cir. 1994). 9. According t0 the Complaint, Plaintiff worked for Costco at its Mountain View, California location in Santa Clara County. (Ex. 1, Complaint, W 1, 3, 10.) The Complaint further alleges that the alleged wrongful conduct took place at Plaintiff s place ofwork in the Santa Clara County, California. (Id. 1H] 10-18) Based on information from Plaintiff’s personnel file and information submitted throughout the course 0f Plaintiff s employment, Plaintiff has, Without exception, listed a California address as his current address, which demonstrates “an intent to remain” in California and establishes his domicile in California. Neither Plaintiff nor Plaintiff’ s counsel has provided a different address 0r indicated that Plaintiff does not intend t0 remain domiciled in California. Plaintiff, therefore, is, and has been at all times since this action commenced, a citizen of California. B. Costco’s Citizenship 10. Costco is now, and was, at the time of the filing of this action, a citizen of a state other than California Within the meaning of 28 U.S.C. Section 1332(c)(1). 11. Costco is incorporated under the laws of the State of Washington, With its principal place 0f business in Washington. 12. Pursuant to 28 U.S.C. § 1332(c)(1), “a corporation shall be deemed to be a citizen 0f any State by which it has been incorporated and 0f the State Where it has its principal place 0f business.” See also Davis v. HSBC Bank Nevada, N.A., 557 F.3d 1026, 1028 (9th Cir. 2009) (citing 28 U.S.C. 1332(c)(1)). At all relevant times, Costco was, and still is, a Washington corporation With its principal place 0f business in Issaquah, Washington. 3 DEFENDANT’S NOTICE OF REMOVAL 64281897v.1 VD 00 \J Ch 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:20-cv-04124-VKD Document 1 Filed 06/22/20 Page 4 of 9 13. The United States Supreme Court in The Hertz Corp. v. Friend held that a ’ 66 corporate entity s principal place of business” for determining its citizenship is its “nerve center”: We conclude that “principal place 0f business” is best read as referring t0 the place where a corporation’s officers direct, control, and coordinate the corporation’s activities. It is the place that Courts 0f Appeals have called the corporation’s “nerve center.” And in practice it should normally be the place where the corporation maintains its headquarters -- provided that the headquarters is the actual center ofdirection, control, and coordination, i.e., the “nerve center” 559 U.S. 77, 92-93 (2010) (emphasis added). 14. Costco’s “nerve center” is in Washington because Issaquah, Washington, is the site of Costco’s corporate headquarters and executive offices, where Costco’s high-level officers direct, control, and coordinate Costco’s activities. Accordingly, Costco is a citizen 0f the State 0f Washington. C. Doe Defendants’ Citizenship 15. The presence 0f Doe defendants in this case has no bearing on diversity 0f citizenship for removal. 28 U.S.C. § 1441(a) (“For purposes 0f removal under this chapter, the citizenship 0f defendants sued under fictitious names shall be disregarded”). Pursuant to 28 U.S.C. § 1441(a), the residence of fictitious and unknown defendants should be disregarded for purposes 0f establishing removal jurisdiction under 28 U.S.C. § 1332. Fristoe v. Reynolds Metals C0., 615 F.2d 1209, 1213 (9th Cir. 1980) (unnamed defendants are not required t0 join in a removal petition). Thus, the existence of the naming of Doe defendants 1 through 50, inclusive, does not deprive this Court 0f jurisdiction. IV. AMOUNT IN CONTROVERSY 16. While Costco denies any liability as to Plaintiff’s claims, the amount in controversy requirement is satisfied because “it is more likely than not” that the amount exceeds the jurisdictional minimum 0f $75,000.00. See Sanchez v. Monumental Life Ins., 102 F.3d 398, 404 (9th Cir. 1996). “The amount in controversy is ‘not a prospective assessment 0f [a] defendant’s 1iabi1ity.”’ Chavez v. JPMorgan Chase & C0., 888 F.3d 413, 418 (9th Cir. 2018) (quoting Lewis V. Verizon Commc’ns, Inc., 627 F.3d 395, 400 (9th Cir. 2010)) 17. In determining the amount in controversy, the Court must consider the aggregate of general damages, special damages, punitive damages, and attorneys’ fees. Gait G/S v. JSS 4 DEFENDANT’S NOTICE OF REMOVAL 64281897VJ \OOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:20-cv-04124-VKD Document 1 Filed 06/22/20 Page 5 of 9 Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 1998) (claims for statutory attorneys’ fees t0 be included in amount in controversy, regardless of Whether such an award is discretionary 0r mandatory); Davenport v. Mut. Benefit Health & Accident Ass ’n, 325 F.2d 785, 787 (9th Cir. 1963) (punitive damages must be taken into account Where recoverable under state law); Conrad Assoc. ’s v. Hartford Accident & Ind. C0., 994 F. Supp. 1196, 1198 (N.D. Cal. 1998) (“amount in controversy” includes claims for general and special damages). The amount in controversy is not limited to damages incurred prior to removal, but is determined by the complaint operative at the time ofremoval and encompasses all relief a court may grant on that complaint if the plaintiff is Victorious. Chavez, 888 F.3d at 414-15. A. Statement 0f Damages 18. The jurisdictional amount may be determined from the face of the complaint. Singer v. State Farm Mut. Auto. Ins. C0., 116 F.3d 373, 377 (9th Cir. 1997). However, as explained by the Ninth Circuit, “the amount-in-controversy inquiry in the removal context is not confined t0 the face 0f the complaint.” Valdez v. Allstate Ins. C0., 372 F.3d 1115, 1117 (9th Cir. 2004) (finding that the Court may consider facts presented in the removal petition). California courts consider a Plaintiff s Statement ofDamages t0 be “a serious estimate of damages in a given case.” Wheeler v. United Fin. Cas. C0., N0. 2:16-CV-01875-SB, 2016 WL 6781612, at *2 (ED. Cal. NOV. 16, 2016) (quoting Matheson v. Progressive Specialty Ins. C0., 319 F. 3d 1089, 1090 (9th Cir. 2003). Courts have held that even standing alone, a Statement 0fDamages can constitute sufficient evidence of an amount in controversy. Wheeler, 2016 WL 6781612, at *2. Here, Plaintiff served a Statement 0f Damages claiming general damages in the amount 0f $500,000. Specifically, Plaintiff seeks $250,000 in pain, suffering, and inconvenience and $250,000 in emotional distress. Plaintiff also seeks $5,600 in loss 0f earnings to date and further seeks filture medical expenses and loss of future earning capacity in an amount t0 be determined. Additionally, Plaintiff s Statement ofDamages shows he is seeking $500,000 in punitive damages. As such, the amount in controversy, exclusive 0f interest and costs, far exceeds the sum 0f $75,000. A true and correct copy of Plaintiff’s Statement ofDamages is attached as Exhibit 3. /// /// /// 5 DEFENDANT’S NOTICE OF REMOVAL 64281897v.1 \OOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:20-cv-04124-VKD Document 1 Filed 06/22/20 Page 6 of 9 B. Alleged Special Damages, Emotional Distress, and Punitive Damages 19. Plaintiff seeks to recover “all special damages,” including lost wages, loss 0f future earnings and earning capacity, and loss of benefits, bonuses and compensation. (EX. 1, Complaint, 1H] 20, 26, 33, 39, 44, 49, 54, 61, 70, Prayer for Relief, 1] 1.) 20. At the time of his termination, Plaintiff earned $20.50 per hour. Plaintiff alleges his employment terminated on April 13, 2020. (EX. 1, Complaint, fl 3.) Plaintiff worked an average of 68.3 hours every two weeks during the last year of his employment. Had he remained employed, Plaintiff’ s 10st wages to date, approximately 10 weeks from Plaintiff’ s date 0f termination, may be estimated at approximately $7000. Assuming conservatively the case is tried one year from the filing of the Complaint, approximately 54 weeks from Plaintiff’s date 0f termination, Plaintiff’s lost wages through trial Will amount t0 approximately $37,804. See Chavez, 888 F.3d at 418 (“If a plaintiff claims at the time of removal that her termination caused her to lose future wages, and if the law entitles her to recoup those future wages if she prevails, then there is no question that future wages are ‘at stake’ in the litigation, Whatever the likelihood that she Will actually recover them. In such a situation, although the plaintiff s employer would have paid the wages in the future had she remained employed, they are presently in controversy”). 21. In addition t0 special damages, Plaintiff seeks t0 recover general damages for pain, humiliation, severe emotional distress, mental anguish, embarrassment, and humiliation. (EX. 1, Complaint, 1H] 20, 26, 33, 39, 44, 49, 54, 70, Prayer for Relief, 1] 2.) He also seeks a recovery of punitive damages. (EX. 1, Complaint, Prayer for Relief, 1] 3.) 22. T0 establish the amount in controversy, a defendant may rely on jury verdicts in cases involving similar facts. Simmons v. PCR Tech, 209 F. Supp. 2d 1029, 1033 (N.D. Cal. 2002); Kroske v. US Bank Corp, 432 F.3d 976, 980 (9th Cir. 2005). 23. California jury verdicts in similar cases often exceed $75,000. See, e.g., Tapia v. San Gabriel Transit Ina; Access Services, Los Angeles Superior Court, Case N0. BC482433 (December 18, 2015) ($1,289,849 verdict on plaintiff’ s claims for disability discrimination and Violation of the CFRA); K0 v. The Square Group LLC dba The Square Supermarket, Los Angeles Superior Court, Case N0. BC487739 (June 16, 2014) ($723,645 verdict 0n plaintiff’s claims for disability discrimination, 6 DEFENDANT’S NOTICE OF REMOVAL 64281897v.1 \OOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:20-cv-04124-VKD Document 1 Filed 06/22/20 Page 7 of 9 retaliation, wrongful termination in Violation of public policy, and wage and hour claims); Behar v. Union Bank, Los Angeles Superior Court, Case No. BC427993 (April 9, 2013 verdict) ($2,563,630 verdict 0n (two) plaintiffs’ claims for age discrimination and harassment, national origin discrimination and harassment, breach 0f contract and defamation claims); Kamali v. California Dept. 0fTramp, Los Angeles Superior Court Case N0. BC426247 (December 20, 2012 verdict) (verdict for $663,983 0n plaintiff s claims for national origin and disability discrimination); Rosales v. Career Systems Devel. Corp, E.D. Cal. Case No. 08CV01383 (WBS) (August 20, 2010 verdict) (verdict for $238,000 0n plaintiff s claims under the FEHA for national origin discrimination, age discrimination, retaliation, and wrongful termination); Hernandez v. Regents 0fthe Univ. 0f Calif, Alameda County Superior Court Case N0. RG06272564 (June 29, 2010 verdict) (verdict for $266,347 on plaintiff’ s claims 0f disability discrimination and failure t0 prevent discrimination, 0f Which $90,000 was allocated t0 non-economic loss). (True and correct copies 0f this verdict information obtained from westlaw.com are attached hereto as Exhibit 3.) See also Landau v. County ofRz'verSide, 2010 WL 1648442 (C.D. Cal. 2010) (award 0f $1,033,500.00 t0 employee Who brought action against employer based disability discrimination and failure t0 accommodate); Dodd v. Haight Brown & Bonesteel LLP, 2010 WL 4845808 (L.A. County Superior Ct. 2010) (award of $410,520.00 to employee wrongfully terminated based on disability and medical condition); Ybarra v. Dacor Holding Ina, 2010 WL 2404221 (L.A. County Superior Ct. 2010) (award of $615,236.00 t0 employee in disability discrimination and wrongful termination action); Morales v. Los Angeles County Metro. Transp. Auth, 2008 WL 4488427 (LA. County Superior Ct. 2008) (award 0f $2,247,137.00 to employee terminated due t0 disability); Ismen v. Beverly Hosp, 2008 WL 4056258 (L.A. County Sup. Ct.) (award 0f $1,180,164.00 in disability discrimination and failure t0 accommodate action); Vaughn v. CNA Casually ofCalifornia, 2008 WL 4056256 (C.D. Cal. 2008) (award of $850,000.00 t0 employee in disability discrimination action); Orue v. Sears, Roebuck & C0., 2007 WL 2456108 (LA. County Superior Ct. 2007) (award of $173,056.00 t0 employee who brought action based on disability and age discrimination against employer who wrongfully terminated his employment); Martin v. Arrow Elect, 2006 WL 2044626 (C.D. Cal. 2006) (award 0f $380,306.00 t0 employee who was wrongfully terminated based upon the disabilities he 7 DEFENDANT’S NOTICE OF REMOVAL 64281897v.1 VD 00 \J Ch 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:20-cv-04124-VKD Document 1 Filed 06/22/20 Page 8 of 9 developed during his employment); Shay v. TG Const., Ina, 2002 WL 1918045 (Ventura County Superior Ct. 2002) (award 0f $462,500.00 to employee wrongfully terminated 0n basis of disability). C. Attorney’s Fees 24. Plaintiff also seeks t0 recover attorneys’ fees. (EX. 1, Complaint, Prayer for Relief, 11 6.) Requests for attorney’s fees must be considered in ascertaining the amount in controversy. See Galt, supra, 142 F.3d at 1156 (claims for statutory attorney’s fees to be included in amount in controversy, regardless of Whether award is discretionary or mandatory). 25. Here, Plaintiff, if successful, would be entitled t0 an award 0f attorneys’ fees that itself “more likely than not” would exceed $75,000. Verdicts show that attorneys’ fees in employment cases typically exceed $75,000. See Denenberg v. California Dep ’t 0fTrans., 2007 WL 2827715 (San Diego County Sup. Ct. Sept. 14, 2006) (attorney’s fees award 0f $490,000 in case alleging discrimination, harassment, and retaliation); McMillan v. City ofLos Angeles, 2005 WL 3729094 (Los Angeles County Sup. Ct. March 21, 2005) (attorney’s fees award 0f $504,926 in case alleging discrimination and retaliation for filing lawsuit to redress discrimination); Gallegos v. Los Angeles City College, 2003 WL 23336379 (Los Angeles County Sup. Ct. Oct. 16, 2003) (attorney’s fees award of $159,277 for claim of discrimination and retaliation). (The verdicts in Denenberg, McMillan, and Gallegos are attached hereto as Exhibit 4.) 26. For each of the foregoing reasons, While Costco denies any liability as to Plaintiff s claims, it is now “more likely than not” that the amount in controversy exceeds $75,000, exclusive of interest and costs, as required by 28 U.S.C. § 1332(a). V. VENUE 27. Plaintiff filed this action in the Superior Court of California, County of Santa Clara. The County of Santa Clara lies Within the jurisdiction 0f the United States District Court, Northern District of California. Therefore, without waiving Costco’s right to challenge, among other things, personal jurisdiction and/or venue by way of a motion 0r otherwise, venue lies in the Northern District of California, San Jose Division pursuant t0 28 U.S.C. §1441(a). /// /// 8 DEFENDANT’S NOTICE OF REMOVAL 64281897VJ \OOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:20-cv-04124-VKD Document 1 Filed 06/22/20 Page 9 of 9 VI. NOTICE OF REMOVAL ON STATE COURT 28. Costco will give notice 0f the filing of this Notice of Removal t0 Plaintiff and to the Clerk of the Superior Court 0f the State 0f California, County 0f Santa Clara. This Notice of Removal is being served on all parties. WHEREFORE, Costco prays that this civil action be removed from the Superior Court 0f the State 0f California, County 0f Santa Clara, t0 the United States District Court for the Northern District 0f California. DATED: June 22, 2020 9 Respectfully submitted, SEYFARTH SHAW LLP By: /S/ Tiflany T. Tran Mark P. Graj ski Tiffany T. Tran Attorneys for Defendant COSTCO WHOLESALE CORPORATION 64281897v.1 DEFENDANT’S NOTICE OF REMOVAL EXHIBIT 1 Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 1 of 27 SUM-100 5UMMoN3 (SOL‘Z°§A%‘ZUSSTO”§E Efi‘c‘ém) (CITACION JUDICIAL) NOTICE To DEFENDANT: E_F|LED (AVIso AL DEMANDADO): 4/30/2020 100 PM COSTCO WHOLESALE CORPORATION, a Washington corporation; Clerk 0f Court and DOES 1 through 50, inclusive, Superior Court Of CA, You ARE BEING SUED BY PLAINTIFF: County of Santa Clara (Lo ESTA’ DEMANDANDo EL DEMANDANTE): 200v366421 ANTHONY KRISTY, as an individual, Reviewed By: R- Tien Envelope: 4298727 NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information below. You have 30 CALENDAR DAYS after this summons and legal papers are sewed on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts Online SeIf-Help Center (www.courtinfo.ca.gov/selfhelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property may be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate these nonprofit groups at the California Legal Services Web site (www.lawhelpcalifornia.org), the California Courts Online SeIf-Help Center (www.courtinfo.ca.gov/selfhelp), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case. iAVlSO! Lo han demandado. Si no responde dentro de 30 dias, Ia cone puede decidir en su contra sin escuchar su versién. Lea la informacién a continuacic’zn. Tiene 30 DiAS DE CALENDARIO despue’s de que le entreguen esta citacic’zn y papeles Iegales para presenter una respuesta por escrito en esta corte y hacer que se entregue una copia al demandante. Una carta o una Ilamada telefénica no Io protegen. Su respuesta por escn'to tiene que estar en formato legal correcto si desea que procesen su caso en Ia corte. Es posible que haya un formulario que usted pueda usar para su respuesta. Puede encontrar estos formularios de la corte y ma’s informacic’zn en el Centro de Ayuda de Ias Cones de California (www.sucorte.ca.gov), en la biblioteca de [eyes de su condado o en Ia corte que Ie quede ma’s cerca. Si no puede pagarla cuota de presentacio’n, pida al secretario de Ia cone que Ie dé un formulario de exencién de pago de cuotas. Si no presenta su respuesta a tiempo, puede perder el caso por incumplimiento y Ia corte le podra’ quitar su sueldo, dinero y bienes sin ma’s adveriencia. Hay otros requisites legales. Es recomendable que Ilame a un abogado inmediatamente. Si no conoce a un abogado, puede Ilamar a un sen/icio de remisién a abogados. Si no puede pagar a un abogado, es posible que cumpla con Ios requisites para obtener servicios legales gratuitos de un programa de servicios legales sin fines de lucro. Puede encontrar estos grupos sin fines de lucro en el sitio web de California Legal Services, (www.lawhelpcaliforniaorg), en el Centro de Ayuda de las Cortes de California, (www.sucorte.ca.gov) o poniéndose en contacto con la corte o el colegio de abogados locales. AVISO: Por ley, Ia corte tiene derecho a reclamar Ias cuotas y Ios costos exentos porimponer un gravamen sobre cualquier recuperacio’n de $10,000 é ma’s de valor recibida mediante un acuerdo o una concesién de arbitraje en un caso de derecho civil. Tiene que pagar el gravamen de Ia corte antes de que la corte pueda desechar el caso. The name and address of the court is: miizudnglaggor El nombre direccio’n de la cone es .' ' ( y ’ 200v366421 Superior Court of California, County of Santa Clara 191 N. First Street, San Jose, CA 951 13 The name, address, and telephone number of plaintiff‘s attorney, or plaintiff without an attorney, is: (El nombre, Ia direccio’n y el namero de tele'fono del abogado del demandante, o del demandante que no tiene abogado, es): Howard Magee(SBN 185 1 99)/Diversity Law Group, 5 15 S. Figueroa St. #1250, LA, CA 9007 1, 2 1 3-488-6555 DATE: 4/30/2020 1:00 PM Clerk of Court C'erk! by, R. Tien I DePUtY (FeCha) (Secretarlo) (Adjunto) (For proof of service of this summons, use Proof of Service of Summons (form POS-010).) (Para prueba de entrega de esta citatién use el formulario Proof of Service of Summons, (POS-010)). NOTICE T0 THE PERSON SERVED: You are served 1. E as an individual defendant. 2. E as the person sued under the fictitious name of (specify): 3_ E on behalf of (specify): under:E CCP 416.10 (corporation) E CCP 416.60 (minor)E CCP 416.20 (defunct corporation) E CCP 416.70 (conservatee)E CCP 41 6.40 (association or partnership)E CCP 416.90 (authorized person)E other (specify): 4. E by personal delivery on (date): Page 1 of1 Form Adopted for Mandatory Use SUMMONS Code of Civil Procedure §§ 412.20, 465 Judicial Council of California www.courtinfo.ca.gov SUM-100 [Rev. July 1, 2009] Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 2 of 27 KOOONONUILUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO Howard L. Magee (State Bar N0. 185 1 99) Larry W. Lee (State Bar N0. 228175) Max W. Gavron (State Bar N0. 291697) DIVERSITY LAW GROUP, P.C. 5 15 S. Figueroa Street, Suite 1250 Los Angeles, CA 90071 (213) 488-6555 (213) 488-6554 facsimile E-FILED 4/30/2020 1:00 PM Clerk of Court Superior Court of CA, County of Santa Clara ZOCV366421 Reviewed By: R. Tien William L. Marder, Esq. (State Bar N0. 170 1 3 1) Polaris Law Group LLP 501 San Benito Street, Suite 200 Hollister, CA 95023 Tel: (831) 531-4214 Fax: (831) 634-0333 Attorneys for PlaintiffAnthony Kristy SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA ANTHONY KRISTY, as an individual, Plaintiff, vs. COSTCO WHOLESALE CORPORATION, a Washington corporation; and DOES 1 through 50, inclusive, Defendants. Case NOI: ZOCV366421 COMPLAINT FOR DAMAGES FOR: (1) PERCEIVED DISABILITY DISCRIMINATION 1N VIOLATION 0F THE FEHA; (2) ASSOCIATIONAL DISABILITY DISCRMINATION 1N VIOLATION 0F THE FEHA; (3) DISABILITY HARASSMENT 1N VIOLATION 0F THE FEHA; (4) WRONGFUL/CONSTRUCTIVE TERMINATION 1N VIOLATION 0F PUBLIC POLICY; (5) INTENTIONAL INFLICTION 0F EMOTIONAL DISTRESS; (6) NEGLIGENT INFLICTION 0F EMOTIONAL DISTRESS; (7) INVASION 0F PRIVACY; and (8) DEFAMATION DEMAND FOR JURY TRIAL 1 COMPLAINT FOR DAMAGES Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 3 of 27 KOOONONUILUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO Plaintiff Anthony Kristy (“Plaintiff”), an individual, by and through his attorneys 0f record, hereby alleges and complains against Defendant Costco Wholesale Corporation, a Washington corporation (“Defendant”), and Does 1 through 50 (hereinafter collectively referred t0 as “Defendants”) as follows: JURISDICTION AND VENUE 1. Jurisdiction and venue are proper in this Court because Defendants d0 business in Santa Clara County, and Plaintiffworked for Defendants in Santa Clara County. Moreover, jurisdiction and venue are proper in this Court pursuant t0 the California Fair Employment and Housing Act (the “FEHA”), California Government Code Section 12965(b) because the unlawful employment actions occurred in this County and the relevant records are located in this County. 2. Plaintiff has met all the jurisdictional requirements for proceeding with his claims under the FEHA, including without limitation, California Government Code Sections 12960 and 12965, by timely filing an administrative complaint against Defendant with the California Department 0f Fair Employment and Housing (the “DFEH”) 0n 0r about April 24, 2020. On April 24, 2020, Plaintiff received his right-to-sue letter from the DFEH against Defendant. True and correct copies 0f the DFEH complaint and right-to-sue letter are collectively attached hereto as Exhibit A. PARTIES 3. Plaintiff was hired by Defendants in about November 2017. Plaintiffworked as a meat cutter at Defendants’ store in Mountain View, California. On 0r about April 13, 2020, Plaintiff was constructively terminated. 4. Defendant Costco Wholesale Corporation operates a chain 0f membership-only warehouse retail stores in locations throughout the United States and world. At all times mentioned herein, Defendant was and is a business entity under the laws 0f the State 0f California and doing business in the County 0f Santa Clara. Defendant employs five (5) 0r more employees. As such, Defendant is subject t0 the FEHA pursuant t0 California Government Code Section 12926(d). DOE DEFENDANTS 2 COMPLAINT FOR DAMAGES Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 4 of 27 KOOONONUILUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO 5. Plaintiff does not know the true names 0r capacities, whether individual, partner 0r corporate, 0f the Defendants sued herein as Does 1 through 50, inclusive, and for that reason, said Defendants are sued under such fictitious names, and Plaintiff prays for leave t0 amend this complaint when the true names and capacities are known. Plaintiff is informed and believes and, based thereon alleges, that each 0f said fictitious Defendants were responsible in some way for the matters alleged herein and proximately caused Plaintiff t0 be subject t0 the illegal employment practices, wrongs and injuries complained 0f herein. AGENCY STATUS OF EACH DEFENDANT 6. At all times herein mentioned, each 0f said Defendants participated in the doing 0f the acts hereinafter alleged t0 have been done by the named Defendants; and furthermore, the Defendants, and each 0f them, were the agents, servants and employees 0f each 0f the other Defendants, as well as the agents 0f all Defendants, and at all times herein mentioned, were acting within the course and scope 0f said agency and employment. 7. Plaintiff is informed and believes and, based thereon alleges, that at all times material hereto, each 0f the Defendants named herein was the agent, employee, alter ego and/or joint venturer 0f, 0r working in concert with each 0f the other co-Defendants and was acting within the course and scope 0f such agency, employment, joint venture, 0r concerted activity. T0 the extent said acts, conduct, and omissions were perpetrated by certain Defendants, each 0f the remaining Defendants confirmed and ratified said acts, conduct, and omissions 0f the acting Defendants. 8. At all times herein mentioned, Defendants, and each 0f them, were members 0f, and engaged in, a joint venture, partnership and common enterprise, and acting within the course and scope 0f, and in pursuance 0f, said joint venture, partnership and common enterprise. 9. At all times herein mentioned, the acts and omissions 0f various Defendants, and each 0f them, concurred and contributed t0 the various acts and omissions 0f each and all 0f the other Defendants in proximately causing the injuries and damages as herein alleged. At all times herein mentioned, Defendants, and each 0f them, ratified each and every act 0r omission complained of herein. At all times herein mentioned, the Defendants, and each 0f them, aided 3 COMPLAINT FOR DAMAGES Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 5 of 27 KOOONONUILUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO and abetted the acts and omissions 0f each and all 0f the other Defendants in proximately causing the damages as herein alleged. FACTUAL ALLEGATIONS 10. Plaintiff began employment with Defendant in about November 20 1 7. Plaintiff worked as a meat cutter at Defendant’s store in Mountain View, California. On April 13, 2020, Plaintiff was constructively terminated from his employment due t0 the discrimination, harassment, invasion 0f privacy, and defamation he experienced. 11. After returning from a short vacation in South Carolina at the end 0f March 2020, Plaintiff returned to work 0n March 30, 2020. 12. On April 1, 2020, Plaintiffs wife began coughing. Because 0f the ongoing public health concerns related t0 the novel coronavirus, 0n April 2, 2020, Plaintiff called his health insurance carrier’s advice nurse and asked her what t0 d0 with respect t0 returning t0 work. The nurse advised Plaintiff that he could continue working. Plaintiff did not have a fever, cough, 0r suffer from any other known symptoms. 13. On April 2, 2020, Plaintiff informed his manager, Alfredo Solis, that his wife had a cough. Plaintiff expected that the information he communicated t0 Mr. Solis would be confidential. Mr. Solis retorted: “D0 you what you think is best. We don’t want t0 get sick because 0f you. Call your doctor and ask him what is best for you.” Out 0f an abundance 0f caution, Plaintiff self-isolated for three days, despite not feeling sick or exhibiting any known symptoms. Plaintiffs wife’s cough went away 0n April 6, 2020. Plaintiffs wife requested a COVID-l 9 test from her medical provider but was not provided one because she was told that her symptoms did not warrant testing. 14. On April 9, 2020, Plaintiff returned t0 work. Several co-workers, including a manager named Fabian, harassed Plaintiff because they suspected him 0f having the coronavirus. Co-workers said things like, “Look Coronavirus boy is back,” 0r “. . .you’ve got the Coronavirus.” Customers and other employees heard these comments. Plaintiffs co-workers spread false rumors that he and his wife were infected with the coronavirus. 15. Plaintiff was ostracized by his co-workers, who conspicuously distanced 4 COMPLAINT FOR DAMAGES Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 6 of 27 KOOONONUILUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO themselves from Plaintiff. For example, prior t0 the pandemic, Plaintiff would cut meat 0n a table with three other employees. On April 9, 2020, however, only one 0f his co-workers was willing to cut meat with Plaintiff. This increased Plaintiff” s workload and was directly related t0 Defendants’ belief that Plaintiff and/or his wife had contracted the coronavirus. 16. On April 10, 2020, one 0f Defendant’s supervisors named “Annamaria” met with Plaintiff in front of her office on the sales floor. She asked Plaintiff whether he was sick, and he said, “N0.” 17. Later that day, the warehouse manager, Todd German, loudly confronted Plaintiff regarding his rumored illness. Mr. German erroneously claimed that Plaintiff had falsified documents regarding whether he 0r his wife had the coronavirus. He made baseless accusations such as: “You know your wife has coronavirus. You need t0 stop lying.” This encounter occurred 0n the sales floor in front 0f customers and co-workers, causing Plaintiff to feel embarrassed and ashamed due t0 Defendants’ false belief that Plaintiff and/or his wife had contracted the coronavirus. 18. Because 0f the discrimination, harassment, invasion 0f privacy, and defamation that Plaintiff experienced as a result 0f Defendants’ conduct, Plaintiffwas constructively terminated on April 13, 2020. Plaintiff could not tolerate the ridicule and harassment he experienced because 0f Defendants’ conduct. 19. Defendant’s afore-referenced conduct and act 0f wrongfully terminating Plaintiff” s employment amounted to illegal discrimination and retaliation in Violation 0f California’s Fair Employment and Housing Act, California Government Code Section 12900 et seq. 20. As an actual and proximate result 0f the illegal employment actions 0f Defendant, Plaintiff has suffered and continues t0 suffer pain, humiliation, severe emotional distress, trauma, and sleeplessness. Also, as an actual and proximate result 0f Defendant’s illegal employment actions, Plaintiff has suffered lost wages, including without limitation, loss 0f salary and benefits. Plaintiff also has suffered a loss in earning capacity. Thus, Plaintiff has suffered economic and non-economic losses in an amount greater than this Court’s jurisdictional 5 COMPLAINT FOR DAMAGES Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 7 of 27 KOOONONUILUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO minimum 0f $25,000. Plaintiff seeks lost wages and loss in earning capacity, as well as compensatory damages for pain and suffering, inconvenience, and mental anguish. Plaintiff also seeks punitive damages, interest, attorneys’ fees, and costs, as permitted by law. FIRST CAUSE OF ACTION PERCEIVED DISABILITY DISCRIMINATION IN VIOLATION OF THE FEHA (AGAINST ALL DEFENDANTS) 21. Plaintiff re-alleges and incorporates by reference the paragraphs above as though fully set forth herein. 22. At all times mentioned herein, California’s Fair Employment and Housing Act (the “FEHA”), California Government Code Section 12900 et seq., was in full force and effect and was binding 0n Defendants, as Defendants regularly employed five (5) 0r more persons. 23. California Government Code Section 12940(a) prohibits Defendants from discriminating against any employee 0n the basis 0f disability. Pursuant t0 California Government Code Section 12926. 1 (b), “disability” includes, without limitation, protection from discrimination due t0 actual 0r perceived physical 0r mental condition that is disabling, potentially disabling, 0r perceived as disabling 0r potentially disabling. 24. Plaintiff was regarded as 0r treated by Defendants as being disabled and/or having a physical condition that made achievement 0f a major life activity difficult. Specifically, Defendants suspected and accused Plaintiff 0f having contracted the coronavirus. 25. Plaintiff is informed and believes and based thereon alleges that his perceived disability was a motivating factor in Defendants’ decision t0 constructively terminate his employment in Violation 0f Government Code Section 12940(a). 26. As a proximate result 0f Defendants’ discrimination against Plaintiff, he has suffered and continues t0 suffer compensatory damages, including without limitation, lost wages, loss 0f future earnings and earning capacity, loss 0f bonuses and deferred compensation, emotional distress, mental anguish, embarrassment, humiliation, and loss 0f future advancement, in the amount 0f at least $25,000.00, according t0 proof at the time 0f trial, which is in excess 0f the jurisdictional minimum for this lawsuit to qualify as an unlimited civil action. Plaintiff 6 COMPLAINT FOR DAMAGES Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 8 of 27 KOOONONUILUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO claims such amounts as damages, together with prejudgment interest accruing from the date 0f the filing 0f this action pursuant t0 California Civil Code Sections 3281 and/or 3288, and/or any other provision 0f law providing for prejudgment interest. 27. As a proximate result 0f Defendants’ discrimination against Plaintiff, he has been forced t0 hire attorneys t0 prosecute the claims alleged herein and has incurred and is expected t0 continue t0 incur attorneys’ fees. Pursuant t0 California Government Code Section 12965(b), Plaintiff requests the award 0f attorneys’ fees against Defendants. 28. Defendants committed the acts alleged herein maliciously, fraudulently, and oppressively, callously, in bad faith, with the wrongful intent of injuring Plaintiff, and in conscious disregard 0f Plaintiffs rights and safety. As such, Plaintiff is entitled t0 an award 0f punitive damages in an amount according t0 proof. SECOND CAUSE OF ACTION ASSOCIATIONAL DISABILITY DISCRIMINATION IN VIOLATION OF THE FEHA (AGAINST ALL DEFENDANTS) 29. Plaintiff re-alleges and incorporates by reference all paragraphs above as though fully set forth herein. 30. At all times mentioned herein, the FEHA, California Government Code Section 12900 et seq., was in full force and effect and was binding 0n Defendants, as Defendants regularly employed five (5) 0r more persons. 3 1. California Government Code Section 12940(a) prohibits Defendants from discriminating against any employee 0n the basis 0f disability. Pursuant t0 California Government Code Section 12926, the definition 0f “disability” embraces association with a person who has a physical 0r mental disability. Government Code Section 12925(0) explains that the phrase “physical disability” and “mental disability” includes “a perception. . .that the person is associated with a person who has, 0r is perceived t0 have” a disability. Accordingly, when the FEHA forbids discrimination based 0n a disability, it also forbids discrimination based 0n a person’s association with another who has a disability. 32. Plaintiff” s association with his wife, whom Defendants perceived as disabled, was 7 COMPLAINT FOR DAMAGES Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 9 of 27 KOOONONUILUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO a substantial motivating factor in Defendants’ decision t0 constructively terminate Plaintiff. On April 2, 2020, out of an abundance 0f caution, Plaintiff informed Defendants that his wife had a cough after returning from a trip t0 South Carolina. Plaintiff did not have a cough 0r exhibit any other known symptoms 0f the coronavirus. Despite Plaintiffs wife’s cough stopping and without other known symptoms, Defendants’ harassed and ostracized Plaintiff upon his return t0 work. Defendants’ publicly humiliated Plaintiff and accused him 0f lying about whether his wife had contracted the coronavirus. As such, Plaintiff is informed and believes, and based thereon alleges, that he was terminated because 0f his association with a perceived as disabled individual; because Defendants wrongly assumed Plaintiff and/or his wife had contracted the coronavirus. Even if Plaintiffs wife had contracted the coronavirus, Defendants’ discriminatory actions Violate the FEHA. 33. As a proximate result 0f Defendants’ discrimination against Plaintiff, he has suffered and continues t0 suffer compensatory damages, including without limitation, lost wages, loss 0f future earnings and earning capacity, loss 0f bonuses and deferred compensation, emotional distress, mental anguish, embarrassment, humiliation, loss 0f future advancement, and damage t0 her reputation in the business community, in the amount 0f at least $25,000.00, according t0 proof at the time 0f trial, which is in excess of the jurisdictional minimum for this lawsuit t0 qualify as an unlimited civil action. Plaintiff claims such amounts as damages, together with prejudgment interest accruing from the date 0f the filing 0f this action pursuant t0 California Civil Code Sections 3281 and/or 3288, and/or any other provision 0f law providing for prejudgment interest. 34. As a proximate result 0f Defendants’ discrimination against Plaintiff, he has been forced t0 hire attorneys t0 prosecute the claims alleged herein and has incurred and is expected t0 continue t0 incur attorneys’ fees. Pursuant t0 California Government Code Section 12965(b), Plaintiff requests the award 0f attorneys’ fees against Defendants. 35. Defendants committed the acts alleged herein maliciously, fraudulently, and oppressively, callously, in bad faith, with the wrongful intent of injuring Plaintiff, and in conscious disregard 0f Plaintiffs rights and safety. As such, Plaintiff is entitled t0 an award 0f 8 COMPLAINT FOR DAMAGES Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 10 of 27 KOOONONUILUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO punitive damages in an amount according t0 proof. THIRD CAUSE OF ACTION DISABILITY HARASSMENT IN VIOLATION OF THE FEHA (AGAINST ALL DEFENDANTS) 36. Plaintiff re-alleges and incorporates by reference all paragraphs above as though fully set forth herein. 37. California Government Code Section 129400)(1) prohibits harassment 0f any employee because 0f their disability 0r perceived disability. 38. As alleged above, Plaintiff was repeatedly unlawfully harassed by Defendants and subjected t0 a hostile work environment because 0f Plaintiffs perceived disability. Plaintiffwas repeatedly and openly subjected t0 derogatory remarks, ridicule, and comments based 0n his and/or his wife’s perceived disability. 39. As a proximate result 0f Defendants’ harassment against Plaintiff, he has suffered and continues t0 suffer compensatory damages, including without limitation, lost wages, loss 0f future earnings, emotional distress, mental anguish, embarrassment, humiliation, loss 0f future advancement, and damage t0 his reputation in the business community, in the amount 0f at least $25,000.00, according t0 proof at the time 0f trial, which is in excess 0f the jurisdictional minimum for this lawsuit to qualify as an unlimited civil action. Plaintiff claims such amounts as damages, together with prejudgment interest accruing from the date 0f the filing 0f this action pursuant t0 California Civil Code Sections 3281 and/or 3288, and/or any other provision 0f law providing for prejudgment interest. 40. As a proximate result 0f Defendants’ harassment against Plaintiff, he has been forced t0 hire attorneys t0 prosecute the claims alleged herein and has incurred and is expected t0 continue t0 incur attorneys’ fees. Pursuant t0 California Government Code Section 12965(b), Plaintiff requests the award 0f attorneys’ fees against Defendants. 41. Defendants committed the acts alleged herein maliciously, fraudulently, and oppressively, callously, in bad faith, with the wrongful intent of injuring Plaintiff, and in conscious disregard 0f Plaintiffs rights and safety. As such, Plaintiff is entitled t0 an award 0f 9 COMPLAINT FOR DAMAGES Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 11 of 27 KOOONONUILUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO punitive damages in an amount according t0 proof. FOURTH CAUSE OF ACTION WRONGFUL/CONSTRUCTIVE TERMINATION IN VIOLATION OF PUBLIC POLICY (AGAINST ALL DEFENDANTS) 42. Plaintiff re-alleges and incorporates by reference all paragraphs above as though fully set forth herein. 43. At all times mentioned herein, the public policy 0f the State 0f California, as codified, expressed and mandated in the FEHA, prohibits employers from discriminating and retaliating against employees because 0f their protected characteristics, including their disabled status. Cal. Govt. Code Section 12940(a), et seq. Nevertheless, Defendants violated these public policies by constructively terminating Plaintiff 0n 0r about April 13, 2020, because 0f his and/or his wife’s perceived disability. 44. As a proximate result 0f Defendants’ wrongful termination of Plaintiff, he has suffered and continues t0 suffer compensatory damages, including without limitation, severe emotional distress, lost wages, benefits, and compensation, and loss 0f future earnings and earning capacity in the amount 0f at least $25,000.00, according t0 proof at the time of trial, which is in excess 0f the jurisdictional minimum for this lawsuit t0 qualify as an unlimited civil action. Plaintiff claims such amounts as damages, together with prejudgment interest accruing from the date 0f the filing 0f this action pursuant t0 California Civil Code Sections 3281 and/or 3288, and/or any other provision 0f law providing for prejudgment interest. 45. Further, because the wrongful acts against Plaintiffwere carried out, authorized, 0r ratified by Defendants’ directors, officers, and/or managing agents, acting with malice, oppression, 0r fraud, 0r were deliberate, willful, and in conscious disregard 0f the probability 0f causing injury t0 Plaintiff, he seeks punitive damages t0 deter Defendants from committing said illegal acts in the future. // // 10 COMPLAINT FOR DAMAGES Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 12 of 27 KOOONONUILUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO FIFTH CAUSE OF ACTION INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (AGAINST ALL DEFENDANTS) 46. Plaintiff re-alleges and incorporates by reference all paragraphs above as though fully set forth herein. 47. When Defendants committed the acts described above, they did so deliberately and intentionally t0 cause Plaintiff t0 suffer humiliation, mental anguish, and emotional distress. The outrageousness 0f the above-described conduct is amplified due t0 upper management’s abuse 0f their positions with actual and apparent authority over Plaintiff, such as is commonly found in employment relationships. Defendants were aware that its unlawful acts would cause Plaintiff to suffer extreme emotional distress and other consequential damages. 48. The above-said acts 0f Defendants constituted intentional infliction of emotional distress against Plaintiff and such conduct 0f the Defendants was a substantial 0r determining factor in causing damage and injury to Plaintiff. 49. As a result 0f Defendants’ intentional infliction 0f emotional distress, Plaintiff has suffered and continues t0 suffer substantial loss and damages including, loss 0f salary, future advancement, bonuses, benefits, embarrassment, humiliation, and mental anguish in an amount t0 be determined at trial. 50. Defendants committed said intentional infliction 0f emotional distress alleged herein against Plaintiff, maliciously, fraudulently, and oppressively with the wrongful intent 0f injuring Plaintiff for an improper and evil motive which constitutes a malicious and conscious disregard of Plaintiffs rights. Plaintiff is thereby entitled t0 punitive damages from the Defendants in an amount t0 be determined at trial. SIXTH CAUSE OF ACTION NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (AGAINST ALL DEFENDANTS) 5 1. Plaintiff re-alleges and incorporates by reference all paragraphs above as though fully set forth herein. 11 COMPLAINT FOR DAMAGES Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 13 of 27 KOOONONUILUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO 52. When Defendants committed the acts described above, they knew, 0r should have known, that their failure t0 exercise due care in the performance 0f their role as employer, manager, supervisor would cause Plaintiff t0 suffer emotional distress. Defendants knew 0r should have known the termination under the alleged circumstances would cause Plaintiff severe emotional distress. 53. The above-said acts 0f the Defendants constituted negligent infliction of emotional distress against Plaintiff and such conduct 0f the Defendants was a substantial 0r determining factor in causing damage and injury to Plaintiff. 54. As a result 0f Defendants’ negligent infliction 0f emotional distress, Plaintiff has suffered and continues t0 suffer substantial loss and damages including, loss 0f salary, future advancement, bonuses, benefits, embarrassment, humiliation, and mental anguish in an amount t0 be determined at trial. 55. Defendants committed said negligent infliction 0f emotional distress alleged herein against Plaintiff, maliciously, fraudulently, and oppressively with the wrongful intent 0f injuring Plaintiff for an improper and evil motive which constitutes a malicious and conscious disregard of Plaintiffs rights. Plaintiff is thereby entitled t0 punitive damages from Defendants in an amount t0 be determined at trial. SEVENTH CAUSE OF ACTION INVASION OF PRIVACY (AGAINST ALL DEFENDANTS) 56. Plaintiff re-alleges and incorporates by reference all paragraphs above as though fully set forth herein. 57. The right 0f every Californian t0 enjoy privacy in their personal lives from intrusion by both public and private entities is enshrined in Article I, Section I of the California Constitution. 58. Plaintiff had a privacy interest in his and/or his wife’s medical information. 59. Plaintiff also had a reasonable expectation 0f privacy in his and/or his wife’s medical information. Such information is protected under various statutes, such as the Health 12 COMPLAINT FOR DAMAGES Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 14 of 27 KOOONONUILUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO Insurance Portability and Accountability Act (“HIPAA”). 60. Defendants’ actions in revealing t0 Plaintiffs co-workers, and making public accusations about, Plaintiff and/or his wife’s health condition, constitute a serious invasion 0f Plaintiff” s privacy interests. 61. As a result 0f this invasion 0f privacy by Defendants, Plaintiff has suffered and continues t0 suffer compensatory damages, including without limitation, lost wages, benefits, and compensation, loss 0f future earnings and earning capacity, loss 0fbonuses and deferred compensation in the amount 0f at least $25,000.00, according t0 proof at the time 0f trial, which is in excess 0f the jurisdictional minimum for this lawsuit t0 qualify as an unlimited civil action. Plaintiff claims such amounts as damages, together with prejudgment interest accruing from the date 0f the filing 0f this action pursuant t0 California Civil Code Sections 3281 and/or 3288, and/or any other provision 0f law providing for prejudgment interest. 62. As a result 0f this invasion 0f privacy by Defendants, Plaintiff has suffered and will continue t0 suffer emotional pain, humiliation, mental anguish, decline in physical health, and enjoyment 0f life all t0 his damage in an amount t0 be proven at trial. Plaintiff claims such amounts as damages. 63. Further, because the wrongful acts against Plaintiffwere carried out, authorized, 0r ratified by Defendants’ directors, officers, and/or managing agents, acting with malice, oppression, 0r fraud, 0r were deliberate, willful, and in conscious disregard 0f the probability 0f causing injury to Plaintiff and Plaintiff seeks punitive damages t0 deter Defendants from committing said illegal acts in the future. EIGHTH CAUSE OF ACTION DEFAMATION (AGAINST ALL DEFENDANTS) 64. Plaintiff re-alleges and incorporates by reference all paragraphs above as though fully set forth herein. 65. The statements made by Fabian, Todd German, and other employees were made in the course and scope 0f Plaintiffs employment with Defendants, and as agents 0f Defendants. 13 COMPLAINT FOR DAMAGES Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 15 of 27 KOOONONUILUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO 66. Defendants’ agents, including Fabian, Todd German, and others either knew that the statements were false 0r had n0 reasonable grounds for believing them t0 be true. 67. These statements were defamatory 0n their face and were designed t0 and clearly did injure Plaintiff in his occupation, and reputation. Fabian and other employees called Plaintiff “Coronavirus boy” and spread rumors in the workplace that Plaintiffwas infected with coronavirus. 68. Todd German inappropriately and loudly confronted Plaintiff 0n the sales floor and accused Plaintiff 0f lying about his wife’s illness, which was overheard by customers and Plaintiff” s co-workers. 69. As a direct and proximate result 0f Defendants’ unlawful acts, Plaintiff has suffered loss 0f his reputation, shame, and hurt feelings all t0 his general damage. Plaintiff also suffered harm t0 his occupation because Defendants constructively terminated him as a result 0f their unfounded beliefs regarding his and/or his wife’s medical condition and defamatory statements. 70. In addition, Plaintiff has suffered and continues t0 suffer mental anguish and anxiety over the extent 0f the defamation and its effect 0n his professional reputation; and Plaintiff has incurred and continues t0 incur substantial losses in earnings, employment benefits, and loss 0f earning capacity. 71. Defendants, and each 0f them, have engaged in the acts and omissions described above with malice, oppression and with an actual intent t0 injure Plaintiff and/or in conscious disregard of his rights, thereby entitling Plaintiff t0 an award 0f punitive and exemplary damages. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for judgment t0 be entered in his favor and against Defendants for: 1. A11 special damages, according t0 proof; 2. General damages for emotional distress and mental anguish in a sum according t0 proof; 14 COMPLAINT FOR DAMAGES Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 16 of 27 KOOONONUILUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO 3. Exemplary and punitive damages in a sum appropriate t0 punish Defendants and set an example for others; 4. For all costs and unpaid wages due and other monetary relief, according t0 proof; 5. Prejudgment interest at the prevailing legal rate; 6. Attorneys’ fees pursuant t0 California Government Code Section 12965(b); 7. Costs 0f suit; and 8. Such other and further relief as the Court may deem just and proper. DATED: April 30, 2020 DIVERSITY LAW GROUP, P.C. “/"xém/OZMM Howard L. Magee Larry W. Lee Max W. Gavron Attorneys for Plaintiff Anthony Kristy DEMAND FOR JURY TRIAL Plaintiff Anthony Kristy hereby demands a trial by jury. DATED: April 30, 2020 DIVERSITY LAW GROUP, P.C. Juxém/OZ£194 Howard L. Magee Larry W. Lee Max W. Gavron Attorneys for Plaintiff Anthony Kristy 15 COMPLAINT FOR DAMAGES Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 17 of 27 EXHIBIT A Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 18 of 27 nw GAVIN NEWSOM GOVERNOR DEPARTMENT 0F FAIR EMPLOYMENT & HOUSING KEVINKISHDIRECTOR 2218 Kausen Drive, Suite 100 | Elk Grove | CA | 95758 (800) 884-1684 (Voice) | (800) 700-2320 (TTY) | California‘s Relay Service at 711 http://www.dfeh.ca.gov | Email: contact.center@dfeh.ca.gov April 24, 2020 Howard Magee 515 S. Figueroa Street, Suite 1250 Los Angeles, California 90071 RE: Notice to Complainant’s Attorney DFEH Matter Number: 20200440004524 Right to Sue: Kristy / Costco Wholesale Corporation Dear Howard Magee: Attached is a copy of your complaint of discrimination filed with the Department of Fair Employment and Housing (DFEH) pursuant to the California Fair Employment and Housing Act, Government Code section 12900 et seq. Also attached is a copy of your Notice of Case Closure and Right to Sue. Pursuant to Government Code section 12962, DFEH will not serve these documents on the employer. You must serve the complaint separately, to all named respondents. Please refer to the attached Notice of Case Closure and Right to Sue for information regarding filing a private lawsuit in the State of California. A courtesy "Notice of Filing of Discrimination Complaint" is attached for your convenience. Be advised that the DFEH does not review or edit the complaint form to ensure that it meets procedural or statutory requirements. Sincerely, Department of Fair Employment and Housing Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 19 of 27 §TATE QF QALIFQRNIA nginggg anggmgr §§Ni§§ gng Hggging Aggncv GAVIN NEWSOM GOVERNOR DEPARTMENT 0F FAIR EMPLOYMENT & HOUSING KEVINKISHDIRECTOR 2218 Kausen Drive, Suite 100 | Elk Grove | CA | 95758 (800) 884-1684 (Voice) | (800) 700-2320 (TTY) | California‘s Relay Service at 711 http://www.dfeh.ca.gov | Email: contact.center@dfeh.ca.gov April 24, 2020 RE: Notice of Filing of Discrimination Complaint DFEH Matter Number: 202004-1 0004524 Right to Sue: Kristy / Costco Wholesale Corporation To All Respondent(s): Enclosed is a copy of a complaint of discrimination that has been filed with the Department of Fair Employment and Housing (DFEH) in accordance with Government Code section 12960. This constitutes service of the complaint pursuant to Government Code section 12962. The complainant has requested an authorization to file a lawsuit. This case is not being investigated by DFEH and is being closed immediately. A copy of the Notice of Case Closure and Right to Sue is enclosed for your records. Please refer to the attached complaint for a list of all respondent(s) and their contact information. No response to DFEH is requested or required. Sincerely, Department of Fair Employment and Housing Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 20 of 27 §TATE QF QALIFQRNIA nginggg anggmgr §§Ni§§ gng Hggging Aggncv GAVIN NEWSOM GOVERNOR DEPARTMENT 0F FAIR EMPLOYMENT & HOUSING KEVINKISHDIRECTOR 2218 Kausen Drive, Suite 100 | Elk Grove | CA | 95758 (800) 884-1684 (Voice) | (800) 700-2320 (TTY) | California‘s Relay Service at 711 http://www.dfeh.ca.gov | Email: contact.center@dfeh.ca.gov April 24, 2020 Anthony Kristy 3511 Oxford Ct. Santa Clara, California 95051 RE: Notice of Case Closure and Right to Sue DFEH Matter Number: 202004-10004524 Right to Sue: Kristy / Costco Wholesale Corporation Dear Anthony Kristy, This letter informs you that the above-referenced complaint was filed with the Department of Fair Employment and Housing (DFEH) has been closed effective April 24, 2020 because an immediate Right to Sue notice was requested. DFEH will take no further action on the complaint. This letter is also your Right to Sue notice. According to Government Code section 12965, subdivision (b), a civil action may be brought under the provisions of the Fair Employment and Housing Act against the person, employer, labor organization or employment agency named in the above-referenced complaint. The civil action must be filed within one year from the date of this letter. To obtain a federal Right to Sue notice, you must contact the U.S. Equal Employment Opportunity Commission (EEOC) to file a complaint within 3O days of receipt of this DFEH Notice of Case Closure or within 300 days of the alleged discriminatory act, whichever is earlier. Sincerely, Department of Fair Employment and Housing Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 21 of 27 OLOOONOU‘l-POONA NNNNNNNNNAAAAAAAAAA mNmU‘l-POONAOQWNQU‘I-POONA COMPLAINT OF EMPLOYMENT DISCRIMINATION BEFORE THE STATE OF CALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING Under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) In the Matter of the Complaint of Anthony Kristy DFEH No. 202004-10004524 Complainant, vs. Costco Wholesale Corporation 999 Lake Drive Issaquah, Washington 98027 Respondents 1. Respondent Costco Wholesale Corporation is an employer subject to suit under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). 2. Complainant Anthony Kristy, resides in the City of Santa Clara State of California. 3. Complainant alleges that on or about April 13, 2020, respondent took the following adverse actions: Complainant was harassed because of complainant's disability (physical or mental), other, association with a member of a protected class. Complainant was discriminated against because of complainant's disability (physical or mental), other, association with a member of a protected class and as a result of the discrimination was terminated, forced to quit, reprimanded, suspended, denied any employment benefit or privilege, other. Complainant experienced retaliation because complainant reported or resisted any form of discrimination or harassment, requested or used a disability-related accommodation and as a result was terminated, forced to quit, reprimanded, suspended, other. -1- Complaint - DFEH No. 202004-10004524 Date Filed: April 24, 2020 Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 22 of 27 OLOOONOU‘l-POONA NNNNNNNNNAAAAAAAAAA mNmU‘l-POONAOQWNQU‘I-POONA Additional Complaint Details: Complainant Anthony Kristy (“Complainant”) began employment with Respondent Costco Wholesale Corporation (“Respondent”) on or about November 15, 2017. Complainant worked for Respondent as a meat cutter in Mountain View, California. On April 13, 2020, Complainant was constructively terminated from his employment because of the discrimination and harassment he experienced, as described further below. After returning from a short vacation to South Carolina at the end of March 2020, Complainant returned to work on March 30, 2020. On April 1, 2020, Complainant’s wife began coughing. Because of the ongoing public health concerns related to COVID-19, 0n April 2, 2020, Complainant called his health insurance carrier’s advice nurse and asked her what to do with respect to returning to work. The nurse advised that Complainant could continue working. Complainant did not have a fever, cough, or suffer any other symptoms. On April 2, 2020, Complainant informed his manager, Alfredo Solis, that Complainant’s wife had a cough. Mr. Solis retorted: “Do you what you think is best. We don’t want to get sick because of you. Call your doctor and ask him what is best for you.” Out of an abundance of caution, Complainant seIf-isolated for three days, despite not feeling sick or exhibiting any symptoms. Complainant’s wife’s cough went away on April 6, 2020. Complainant’s wife requested a coronavirus test from her medical provider, but was not provided one, she was told, because her symptoms did not warrant testing. On April 9, 2020, Complainant returned to work. Several co-workers, including a manager named Fabian, harassed Complainant because they suspected him of having the Coronavirus. Co-workers said things like, “Look Coronavirus boy is back,” or “...you’ve got the Coronavirus.” Complainant’s co-workers spread false rumors about he and his wife having Coronavirus. Complainant’s co-workers also kept a noticeable distance from him upon returning to work. Complainant was essentially ostracized in the workplace. Usually, Complainant would cut meat on a table with three other people, but on April 9, 2020, only one person was willing to cut meat with him. This increased Complainant’s workload and was directly related to Respondent’s unfounded belief that Complainant and/or his wife had contracted the Coronavirus. On April 10, 2020, one of Respondent’s supervisors named “Annemarie” (last name unknown) met with Complainant in front of her office on the sales floor. She asked Complainant whether he was sick, and he said, “No.” -2- Complaint - DFEH No. 202004-10004524 Date Filed: April 24, 2020 Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 23 of 27 OLOOONOU‘l-POONA NNNNNNNNNAAAAAAAAAA mNmU‘l-POONAOQWNQU‘I-POONA Later that day, the warehouse manager, Todd German, got involved and confronted Complainant. Mr. German erroneously claimed that Complainant had falsified documents regarding whether he or his wife had Coronavirus. He said things like, “You know your wife has coronavirus. You need to stop lying.” He confronted Complainant on the sales floor in front of customers and co-workers causing Complainant to feel embarrassed and ashamed because of Respondent’s belief that Complainant and/or his wife had Coronavirus. As a result of the conduct alleged above, Respondent discriminated, harassed, retaliated, and/or wrongfully terminated Complainant in violation of California’s Fair Housing and Employment Act, California Gov’t Code §§ 12940, et seq. -3- Complaint - DFEH No. 202004-10004524 Date Filed: April 24, 2020 Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 24 of 27 OLOOONOU‘l-POONA NNNNNNNNNAAAAAAAAAA mNmU‘l-POONAOQWNQU‘I-POONA VERIFICATION I, Howard L. Magee, am the Attorney in the above-entitled complaint. | have read the foregoing complaint and know the contents thereof. The matters alleged are based on information and belief, which | believe to be true. On April 24, 2020, | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. -4- Los Angeles, CA Complaint - DFEH No. 202004-10004524 Date Filed: April 24, 2020 Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 25 of 27 CM-010 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name State Bar number, and address .' FOR COURT USE ONLY- Howard L. Magee (SBN 185 199) / Max W. Gavron (SEN 291697) DIVERSITY LAW GROUP £15 i Figiuerczja 13tfreep, 88656711250 0s nge es, a 1 orma - - TELEPHONE No.2 213) 488-6555 . FAXNO; (213) 488-6554 E '°°"°"'.°a"y F"ed ATTORNEY FOR(Name)_- lalntlff Anthony KI‘lSty by superlor court Of CA, SUPERIOR COURT 0F CALIFORNIA, COUNTY 0F SANTA CLARA County Of Santa Clara, STREETADDRESS 191 N- First Street on 4/30/2020 1:00 PM MAILING ADDRESS: - .ReVIewed B : R. Tlen CITYANDZIPCODE: San Jose, CA 951.13 C #Zocvy366421 BRANCH NAME; Downtown Superlor Court 'ase CASE NAME: I: nvelope: 4298727 Anthony Kristy V. Costco Wholesale Corporation CW"- CASE COVER SHEET Complex Case Designation CASE NUMBER: 200V366421 Unlimited E Limited E E _(Amount (Amount Counter Jomder JUDGE- demanded demanded is Filed with first appearance by defendant ' exceeds $25,000) $25,000 or less) (Cal. Rules of Court, rule 3.402) DEPT: Items 1-6 below must be completed (see instructions on page 2). 1. Check one box below for the case type that best describes this case: Auto Tort Contract Provisionally Complex Civil LitigationE Auto (22) E Breach of contracflwarranty (05) (Cal. Rules of Court, rules 3.400-3.403) Uninsured motorist (46) E Rule 3.740 collections (09) E Antitrust/Trade regulation (03) Other PIIPDIWD (Personal lnjurylProperty E Other collections (09) E Construction defect (10) DamageIWrongful Death) Tort E Insurance coverage (18) E Mass tort (40) Asbestos (04) E Other contract (37) E Securities litigation (28) Product liability (24) Rea| property E Environmental/Toxic tort (30) Medical malpradice (45) E Eminent domain/MVerse E Insurance coverage claims arising from theD Other Pl/PDNVD (23) COHdemnation (14) above listed provisionally complex case Non-PI/PD/WD (Other) Tort E Wrongfu' 9Vi0fi0“ (33) types (41)E Business tort/unfair business practice (07) E Other real pmperty (26) Enforcement Of JUdgmentD Civil rights (08) Unlawful Detainer E Enforcement ofjudgment (20)D Defamation (13) CommerCia' (31) Miscellaneous Civil ComplaintE Fraud (16) E Residential (32) E RICO (27)E Intellectual property (19) E Drugs (38) Other complaint (not specified above) (42)E PFOfeSSiona' negligence (25) JUdiCia' ReVieW Miscellaneous Civil PetitionE Other non-Pl/PD/WD tort (35) E Asset forfeiture (05) Partnership and corporate governance (21) Employment Petition re: arbitration award (11) D Other petition (not Specified above) (43) Wrongful termination (36) E Writ of mandate (02)E Other employment (15) E Otherjudicial review (39) 2. This case E is m is not complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the factors requiring exceptional judicial management: a.E Large number of separately represented parties d.E Large number of witnesses b.E Extensive motion practice raising difficult or novel e.E Coordination with related actions pending in one or more courts issues that will be time-consuming to resolve in other counties, states, or countries, or in a federal court c.E Substantial amount of documentary evidence f. E Substantial postjudgmentjudicial supervision 3. Remedies sought (check all that apply): a.- monetary hm nonmonetary; declaratory or injunctive relief c. .punitive 4. Number of causes of action (specify): Eight (8) 5. This case E is is not a class action suit. 7 6. If there are any known related cases, file and serve a notice of related case. fYou may use f m -015.) Date; April 30, 2020 m/fiw u ,. MHoward L. Magee } h _ _ _ _ . ' (TYPE OR PRINT NAM E) (SIGNATURE OF PARTY OR ATTORNEY FOR PARTY) NOTICE o Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small claims cases or cases filed under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failure to file may result in sanctions. ° File this cover sheet in addition to any cover sheet required by local court rule. 0 If this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all other parties to the action or proceeding. 0 Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes only. age 1 of 2 Form Adopted for Mandatory Use CIVIL CASE COVER SHEET Cal. Rules of Court, rules 2.30, 3.220, 3.400-3.403, 3.740; Judicial Council of California Cal. Standards of Judicial Administration, std. 3.10 CM-010 [Rev. July 1, 2007] www.courtinfo.ca.gov Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 26 of 27 CM-010 INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET To Plaintiffs and Others Filing First Papers. If you are filing a first paper (for example, a complaint) in a civil case, you must complete and file, along with your first paper, the Civil Case Cover Sheet contained on page 1. This information will be used to compile statistics about the types and numbers of cases filed. You must complete items 1 through 6 on the sheet. In item 1, you must check one box for the case type that best describes the case. If the case fits both a general and a more specific type of case listed in item 1, check the more specific one. If the case has multiple causes of action, check the box that best indicates the primary cause of action. To assist you in completing the sheet, examples of the cases that belong under each case type in item 1 are provided below. A cover sheet must be filed only with your initial paper. Failure to file a cover sheet with the first paper filed in a civil case may subject a party, its counsel, or both to sanctions under rules 2.30 and 3.220 of the California Rules of Court. To Parties in Rule 3.740 Collections Cases. A "collections case" under rule 3.740 is defined as an action for recovery of money owed in a sum stated to be certain that is not more than $25,000, exclusive of interest and attorney's fees, arising from a transaction in which property, services, or money was acquired on credit. A collections case does not include an action seeking the following: (1) tort damages, (2) punitive damages, (3) recovery of real property, (4) recovery of personal property, or (5) a prejudgment writ of attachment. The identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the general time-for-service requirements and case management rules, unless a defendant files a responsive pleading. A rule 3.740 collections case will be subject to the requirements for service and obtaining a judgment in rule 3.740. To Parties in Complex Cases. In complex cases only, parties must also use the Civil Case Cover Sheet to designate whether the case is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of Court, this must be indicated by completing the appropriate boxes in items 1 and 2. If a plaintiff designates a case as complex, the cover sheet must be served with the complaint on all parties to the action. A defendant may file and serve no later than the time of its first appearance a joinder in the plaintiff's designation, a counter-designation that the case is not complex, or, if the plaintiff has made no designation, a designation that the case is complex. Auto Tort Auto (22)-Persona| Injury/Property Damage/Wrongful Death Uninsured Motorist (46) (if the case involves an uninsured motorist claim subject to arbitration, check this item instead ofAuto) Other PIIPDIWD (Personal Injuryl Property DamagelWrongful Death) Tort Asbestos (04) Asbestos Property Damage Asbestos Personal Injury/ Wrongful Death Product Liability (not asbestos or toxic/environmental) (24) Medical Malpractice (45) Medical Malpractice- Physicians & Surgeons Other Professional Health Care Malpractice Other Pl/PDNVD (23) Premises Liability (e.g., slip and fall) Intentional Bodily Injury/PDNVD (e.g., assault, vandalism) Intentional Infliction of Emotional Distress Negligent Infliction of Emotional Distress Other Pl/PDNVD Non-PIIPDIWD (Other) Tort Business Tort/Unfair Business Practice (07) Civil Rights (e.g., discrimination, false arrest) (not civil harassment) (08) Defamation (e.g., slander, libel) (1 3) Fraud (16) Intellectual Property (19) Professional Negligence (25) Legal Malpractice Other Professional Malpractice (not medical or legal) Other Non-Pl/PDNVD Tort (35) Employment Wrongful Termination (36) Other Employment (1 5) CM-010 [Rev. July 1, 2007] CASE TYPES AND EXAMPLES Contract Breach of Contract/Warranty (06) Breach of RentaI/Lease Contract (not unlawful detainer or wrongful eviction) Contract/Warranty Breach-Seller Plaintiff (not fraud or negligence) Negligent Breach of Contract/ Warranty Other Breach of Contract/Warranty Collections (e.g., money owed, open book accounts) (09) Collection Case-Seller Plaintiff Other Promissory Note/Collections Case Insurance Coverage (not provisionally complex) (1 8) Auto Subrogation Other Coverage Other Contract (37) Contractual Fraud Other Contract Dispute Real Property Eminent Domain/lnverse Condemnation (14) Wrongful Eviction (33) Other Real Property (e.g., quiet title) (26) Writ of Possession of Real Property Mortgage Foreclosure Quiet Title Other Real Property (not eminent domain, landlord/tenant, or foreclosure) Unlawful Detainer Commercial (31) Residential (32) Drugs (38) (if the case involves illegal drugs, check this item; otherwise, report as Commercial or Residential) Judicial Review Asset Forfeiture (05) Petition Re: Arbitration Award (11) Writ of Mandate (02) Writ-Administrative Mandamus Writ-Mandamus on Limited Court Case Matter Writ-Other Limited Court Case Review Other Judicial Review (39) Review of Health Officer Order Notice of AppeaI-Labor Commissioner Appeals CIVIL CASE COVER SHEET Provisionally Complex Civil Litigation (Cal. Rules of Court Rules 3.400-3.403) Antitrust/Trade Regulation (03) Construction Defect (10) Claims Involving Mass Tort (40) Securities Litigation (28) Environmental/Toxic Tort (30) Insurance Coverage Claims (arising from provisionally complex case type listed above) (41) Enforcement of Judgment Enforcement of Judgment (20) Abstract of Judgment (Out of County) Confession of Judgment (non- domestic relations) Sister State Judgment Administrative Agency Award (not unpaid taxes) Petition/Certification of Entry of Judgment on Unpaid Taxes Other Enforcement of Judgment Case Miscellaneous Civil Complaint RICO (27) Other Complaint (not specified above) (42) Declaratory Relief Only Injunctive Relief Only (non- harassment) Mechanics Lien Other Commercial Complaint Case (non-tort/non-complex) Other Civil Complaint (non-tort/non-complex) Miscellaneous Civil Petition Partnership and Corporate Governance (21) Other Petition (not specified above) (43) Civil Harassment Workplace Violence EIder/Dependent Adult Abuse Election Contest Petition for Name Change Petition for Relief From Late Claim Other Civil Petition Page 2 of 2 Case 5:20-cv-04124-VKD Document 1-1 Filed 06/22/20 Page 27 of 27 EXHIBIT 2 Case 5:20-cv-04124-VKD Document 1-2 Filed 06/22/20 Page 1 of 8 \OOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:20-cv-O4124-VKD Document 1-2 Filed 06/22/20 Page 2 0f 8 SEYFARTH SHAW LLP Mark P. Grajski (SBN 178050) mgraj ski@seyfarth.com Tiffany T. Tran (SBN 294213) ttran@seyfarth.com 400 Capitol Mall, Suite 2350 Sacramento, California 958 14-4428 Telephone: (916) 448-0159 Facsimile: (916) 558-4839 Attorneys for Defendant COSTCO WHOLESALE CORPORATION SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA ANTHONY KRISTY, Case N0. 20CV366421 Plaintiff, DEFENDANT COSTCO WHOLESALE CORPORATION’S ANSWER TO V. COMPLAINT COSTCO WHOLESALE CORPORATION, a Washington Corporation; and DOES 1 through Complaint Filed: April 30, 2020 50, inclusive, Defendants. Defendant COSTCO WHOLESALE CORPORATION (“Defendant”) answers the unverified Complaint of PlaintiffANTHONY KRISTY (“Plaintiff’) as follows: GENERAL DENIAL Pursuant to the provisions of California Code of Civil Procedure Section 43 1 .30(d), Defendant denies, generally and specifically, each and every allegation, statement, matter and each purported cause 0f action contained in Plaintiff’ s Complaint. Without limiting the generality of the foregoing, Defendant also denies, generally and specifically, that Plaintiff has been damaged in the manner or sums alleged, or in any way at all, by reason 0f any acts or omissions of Defendant, 0r either 0f them. SEPARATE DEFENSES In further answer to the Complaint, Defendant alleges the following separate and distinct affirmative 0r additional defenses. In asserting these defenses, Defendant does not assume the burden of 1 DEFENDANT COSTCO WHOLESALE CORPORATION’S ANSWER TO COMPLAINT 64281791v.1 \OOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:20-cv-O4124-VKD Document 1-2 Filed 06/22/20 Page 3 0f 8 proof as to matters that, pursuant to law, are Plaintiff’ s burden to prove. Further, Defendant does not presently know all of the facts and circumstances respecting Plaintiff” s claims and therefore reserves the right to amend its Answer to add facts and defenses, should Defendant later discover facts demonstrating the existence of additional defenses. FIRST DEFENSE (Failure To State Cause Of Action) Plaintiff s Complaint, and each and every cause of action purported to be alleged therein, fails to state facts sufficient t0 constitute a cause 0f action. SECOND DEFENSE (Statute Of Limitations) Plaintiff s Complaint, and each and every cause 0f action purported to be alleged therein, is barred by the applicable statute 0f limitations including, but not limited to, California Government Code sections 12960 and 12965; and California Code of Civil Procedure sections 335.1, 337, 338(a), 339, 340(0), and 343. THIRD DEFENSE (Failure To Exhaust Administrative Remedies) Plaintiff s Complaint, and each and every cause 0f action purported to be alleged therein, is barred t0 the extent that he has failed to exhaust administrative remedies pursuant to California Government Code sections 12960, 12965, and all other applicable laws. FOURTH DEFENSE (Managerial Discretion) Any and all conduct 0f Which Plaintiff complains 0r Which is attributed t0 Defendant was a just and proper exercise ofmanagement discretion, at all times privileged and justified, and undertaken for fair and honest reasons, in good faith and without malice. FIFTH DEFENSE (Laches) Plaintiff s Complaint and each and every cause of action purported to be alleged therein is barred in Whole or in part by the doctrine of laches. 2 DEFENDANT COSTCO WHOLESALE CORPORATION’S ANSWER TO COMPLAINT 64281791v.1 \OOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:20-cv-O4124-VKD Document 1-2 Filed 06/22/20 Page 4 0f 8 SIXTH DEFENSE (After-Acquired Evidence) Plaintiff s claims for damages are barred to the extent he engaged in any fraud or misconduct of Which Defendant was unaware until after Plaintiff filed suit, and Which, ifknown would have caused Plaintiff to be terminated 0r not hired in the first place. SEVENTH DEFENSE (Comparative Fault) If Plaintiff sustained any injury, damage 0r loss by reason 0f any act, error or omission on the part 0f Defendant, said injury, damage or loss must be reduced 0n the basis 0f comparative fault 0r negligence 0f Plaintiff or others Which contributed to and proximately caused any such injury, damage or loss. EIGHTH DEFENSE (Failure T0 State Claim For Punitive Damages) Plaintiff s Complaint fails t0 state facts sufficient to constitute a claim for punitive damages against Defendant pursuant t0 California Civil Code section 3294. NINTH DEFENSE (Same Decision) Plaintiff s remedies are limited and/or liability is precluded because Defendant would have taken the same action, for legitimate, non-discriminatory reasons, in the absence of the alleged impermissible motivating factor(s). TENTH DEFENSE (Failure T0 Mitigate Damages) Plaintiff is not entitled t0 back pay and/or other damages for any cause of action purported to be alleged in his Complaint t0 the extent that he failed t0 mitigate his alleged loss 0fwages or other damages. /// /// /// 3 DEFENDANT COSTCO WHOLESALE CORPORATION’S ANSWER TO COMPLAINT 64281791v.1 \OOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:20-cv-O4124-VKD Document 1-2 Filed 06/22/20 Page 5 0f 8 ELEVENTH DEFENSE (Setoff) To the extent Plaintiff has received other benefits and/or awards attributable to an injury for Which he seeks compensation in this case, such benefits and/or awards should offset, in Whole or in part, any award he receives here for the same injury. TWELFTH DEFENSE (Estoppel) Plaintiff s Complaint, and each and every cause 0f action purported t0 be alleged therein, is barred in whole 0r in part by judicial, equitable and/or collateral estoppel. THIRTEENTH DEFENSE (Waiver) Plaintiff s Complaint, and each and every cause 0f action purported t0 be alleged therein, is barred in Whole 0r in part by the doctrine of waiver. FOURTEENTH DEFENSE (Unclean Hands) Plaintiffs Complaint, and every cause of action purported to be alleged therein, is barred by the doctrine of unclean hands. FIFTEENTH DEFENSE (Ratification) Plaintiff s Complaint, and each and every cause 0f action purported to be alleged therein, is barred in whole or in part because any conduct by Defendant was ratified, consented t0 and/or acquiesced in by Plaintiff. SIXTEENTH DEFENSE (Avoidable Consequences) If Plaintiff sustained any injury, damage or loss by reason of any act, error or omission on the part of Defendant, said injury, damage, 0r loss must be reduced t0 the extent that he failed t0 exercise reasonable care to avoid 0r limit the alleged harm. /// 4 DEFENDANT COSTCO WHOLESALE CORPORATION’S ANSWER T0 COMPLAINT 64281791v.1 \OOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:20-cv-O4124-VKD Document 1-2 Filed 06/22/20 Page 6 0f 8 SEVENTEENTH DEFENSE (Workers’ Compensation Preemption) Plaintiff s Complaint, and each cause 0f action attempted t0 be stated therein, arises from an employment relationship, such that any emotional distress or mental anguish allegedly suffered is barred by the exclusive remedy provided by California Labor Code sections 3600 et. seq., and cannot be compensated for in the present action. EIGHTEENTH DEFENSE (Truth) Plaintiff s claim for defamation is barred 0n the grounds that any purported defamatory statements were true or substantially true. NINETEENTH DEFENSE (Consent) Plaintiff s claims for defamation and invasion of privacy (and any other causes 0f action derivative 0f one or both of them) are barred 0n the grounds that Plaintiff consented by words or conduct to Defendant’s purported communication 0f the statement(s) to others. TWENTIETH DEFENSE (Justified) Plaintiff s claims for defamation and invasion 0f privacy (and any other causes of action derivative of one 0r both 0f them) are barred on the grounds that Defendant’s conduct was justified. TWENTY-FIRST DEFENSE (Privilege - Civil Code section 47(c)) Plaintiff s claims for defamation and invasion of privacy (and any other causes 0f action derivative 0f one or both of them) are barred 0n the grounds that the alleged statements were subj ect to the common interest privilege 0f Civil Code section 47(c). /// /// /// /// 5 DEFENDANT COSTCO WHOLESALE CORPORATION’S ANSWER TO COMPLAINT 64281791v.1 \OOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:20-cv-O4124-VKD Document 1-2 Filed 06/22/20 Page 7 0f 8 PRAYER Wherefore, Defendant prays for judgment as follows: 1. That Plaintiff takes nothing for the Complaint; 2. That judgment be entered in favor of Defendant and against Plaintiff on all causes of action; 3. That Defendant be awarded reasonable attorneys’ fees; 4. That Defendant be awarded its costs of suit incurred herein; and 5. That Defendant be awarded such other and further relief as the Court may deem appropriate. DATED: June 22, 2020 6 Respectfully submitted, SEYFARTH S ABy: r Mérk Waéajskifi?“ Tiffany T. Tran Attorneys for Defendant COSTCO WHOLESALE CORPORATION DEFENDANT COSTCO WHOLESALE CORPORATION’S ANSWER TO COMPLAINT 64281791v.1 \OOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:20-cv-O4124-VKD Document 1-2 Filed 06/22/20 Page 8 0f 8 PROOF OF SERVICE I am a resident 0f the State 0f California, over the age 0f eighteen years, and not a party t0 the Within action. My business address is 400 Capitol Mall, Suite 2350, Sacramento, California 95814- 4428. On June 22, 2020, I served the within document(s): DEFENDANT COSTCO WHOLESALE CORPORATION’S ANSWER TO COMPLAINT by placing the document(s) listed above in a sealed envelope With postage thereon fully prepaid,I in the United States mail at Sacramento, California, addressed as set forth below. D by personally delivering the document(s) listed above t0 the person(s) at the address(es) set forthbelow. by placing the document(s) listed above, together With an unsigned copy 0f this declaration, in aD sealed envelope or package provided by an overnight delivery carrier with postage paid 0n account and deposited for collection with the overnight carrier at Sacramento, California, addressed as set forth below. D by transmitting the document(s) listed above, electronically, Via the e-mail addresses set forthbelow. Howard L. Magee Attorneys for Plaintiff Larry W. Lee Max W. Gavron Tel: (213) 488-6555 Diversity Law Group, P.C. Fa?“ (213) 488-6554 515 S. Figueroa Street, Suite 1250 Los Angeles, CA 90071 William L. Marder Attorneys for Plaintiff Polaris Law Group, LLP 501 San Benito Street, Suite 200 T613 (83 1) 531-4214 Hollister, CA 95023 Faxr (83 1) 634-0333 I am readily familiar with the firm's practice 0f collection and processing correspondence for mailing. Under that practice it would be deposited With the U. S. Postal Service 0n that same day with postage thereon fully prepaid 1n the ordinary course 0f business. I am aware that 0n motion 0f the party served, service is presumed invalid if postal cancellation date 0r postage meter date 1s more than one day after date 0f deposit for mailing 1n affidavit. I declare under penalty 0f perjury under the laws 0f the State of California that the above is true and correct. Executed 0n June 22, 2020, at Sacramento, California. Crystaul Hollman PROOF OF SERVICE 64500968v.1 EXHIBIT 3 Case 5:20-cv-04124-VKD Document 1-3 Filed 06/22/20 Page 1 of 20 Case 5:20-cv-04124-VKD Document 1-3 Filed 06/22/20 Page 2 of 20 TAPIA v. SAN GABRIEL TRANSIT |NC.; ACCESS SERVICES, JVR No. 1607080047... JVR No. 1607080047, 2015 WL 11142536 (Ca1.Super.) (Verdict and Settlement Summary) Copyright (c) 2015 Thomson Reuters/West Superior Court, Los Angeles County, California. TAPIA v. SAN GABRIEL TRANSIT INC.; ACCESS SERVICES BC482433 DATE OF FILING: April 06, 2012 DATE 0F TRIAL/SETTLEMENT: December 18, 2015 SUMMARY Outcome: Plaintiff Verdict Total: $1,289,849 HIGH AMOUNT: $0 LOW AMOUNT: $0 Related Court Documents: Plaintiff‘s second amended complaint: 2013 WL 11084672 Verdict form: 2015 WL 7355078 Verdict form (punitive damages): 201 5 WL 10428082 Judgment: 2015 WL 10427534 EXPERT-WITNESSES: ATTORNEY: Plaintiff: Lauri L. Brenner, AlderLaw P.C., Los Angeles, CA Plaintiff: Marni B. Folinksy, AlderLaw P.C., Los Angeles, CA Plaintiff: Frank Alan Alfonso, Alfonso & Hoyng L.L.P., Pasadena, CA Plaintiff: Francisco Hoyng, Alfonso & Hoyng L.L.P., Pasadena, CA Plaintiff: Susan R. Huerta, Alfonso & Hoyng L.L.P., Pasadena, CA Defendant: Arno H. Keshishian, Manookian & Keshishian A.P.L.C., Glendale, CA Defendant: Claude M. Manookian, Manookian & Keshishian A.P.L.C., Glendale, CA JUDGE: Yvette M. Palazuelos RANGE AMOUNT: $1,000,000 - 1,999,999 STATE: California COUNTY: Los Angeles SUMMARY PLAINTIFF: WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 5:20-cv-04124-VKD Document 1-3 Filed 06/22/20 Page 3 of 20 TAPIA v. SAN GABRIEL TRANSIT INC.; ACCESS SERVICES, JVR No. 1607080047... Sex: M Age: Adult General Occupation: General Laborer DEFENDANT: Sex: O organization Type: San Gabriel Transit Inc. Sex: 0 Organization Type: Access Services DAMAGES: Compensatory Pain & Suffering: $775,000 Compensatory Past Wages: $44,537 Compensatory Future Wages: $70,312 Total Compensatory Award: $889,849 Punitive Damages: $400,000 Hedonic Damages: $0 Property Damages: $0 Interest: $0 Other Damages: $0 Loss of Services: $0 ADVERSE ACTION Closer Supervision: false Constructive Discharge: false Demotion: false Denial Tenure: false WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 5:20-cv-04124-VKD Document 1-3 Filed 06/22/20 Page 4 of 20 TAPIA v. SAN GABRIEL TRANSIT INC.: ACCESS SERVICES. JVR No. 1607080047... Failure Accomodate: false Failure Grant Leave: false Failure Hire: false Failure Promote: false Suspension: false Sexual Harassment: false Harassment: false Hostile Work Env: false Isolation: false Lay Off: false Loss Benefits: false Loss Pay: false Loss Seniority: false Negative Eval: false Negative Reference: false Pay Increase Denial: false Reassignment: false Reduction Pay: false Reprimands: false Restrictions: false Termination: true Entity Type: Transportation Company STATUTES Primary Specific Statute WESTLAW © 2017' Thomson Reuters. No claim to original U.S. Government Works. Case 5:20-cv-04124-VKD Document 1-3 Filed 06/22/20 Page 5 of 20 TAPIA v. SAN GABRIEL TRANSIT INC.; ACCESS SERVICES, JVR No. 1607080047... Primary Name: State Primary General Statute Primary Name: Disability Discrimination Primary General Statute Discrimination: true Specific Statute: State General Statute: Family and Medical Leave General Statute Discrimination: false Comparative Negligence Percentage: 0 FACTS: Francisco Tapia sued San Gabriel Transit Inc. and Access Services for disability discrimination, failure to provide a reasonable accommodation, failure to engage in the interactive process, and violation of the California Family Rights Act (CFRA). The plaintiff contended he became employed as a driver for the defendants in 2002, but on November 14, 201 1, he was told by a Human Resources Manager that he was required t0 go on leave, and to seek a psychiatric evaluation because a passenger notified the defendants that she believed Tapia was suffering from depression. 0n November 19, 201 1, the plaintiff reportedly informed the defendants that he was suffering from depression and that his doctor had placed him on medical leave. Tapia contended the defendants terminated his employment on December 12, 201 1 because of his disability or perceived disability, in violation ofthe Fair Employment and Housing Act (FEHA). He contended the defendants violated the FEHA by failing to engage in the interactive process to assess his disability in order to provide a reasonable accommodation. Tapia asserted that the defendants also violated the CFRA by refusing to reinstate him to his position or to a comparable position following a CFRA qualified leave, and by terminating hi’s employment for requiring a CFRA qualified leave. The defendants denied liability, and Access Services contended it never employed Tapia. The jury found in favor of the plaintiff and against defendant San Gabriel Transit 0n all causes of action and awarded him punitive damages in addition to economic and non-economic damages. The jury further found that Access Services was not a joint or dual employer of the plaintiff, and thus not liable for his damages. Jury Verdict Research COURT: Superior End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2017 Thomson Réuters. No claim t0 original U.S. Government Works. 4 Case 5:20-cv-04124-VKD Document 1-3 Filed 06/22/20 Page 6 of 20 KO v. THE SQUARE GROUP L.L.C. DIBIA THE SQUARE... JVR No. 1503030036... JVR No. 1503030036, 2014 WL 8108413 (Ca1.Super.) (Verdict and Settlement Summary) Copyright (c) 2015 Thomson Reuters/West Superior Court, Los Angeles County, California. KO v. THE SQUARE GROUP L.L.C. D/B/ATHE SQUARE SUPERMARKET; IXZIBIT INC. BC487739 DATE 0F FILING: July 03, 2012 DATE OF TRIAL/SETTLEMENT: June l6, 2014 SUMMARY Outcome: Plaintiff Verdict Total: $723,645 HIGH AMOUNT: $0 LOW AMOUNT: $0 Related Court Documents: Plaintiffs third amended complaint: 2013 WL 8846675 Joint statement of the case: 2014 WL 3772884 Verdict form: 2014 WL 3542203 Verdict form (punitive damages): 2014 WL 3542221 Judgment: 2014 WL 3555573 EXPERT-WITNESSES: ATTORNEY: Plaintiff: Henry M. Lee, Henry M. Lee Law Corporation, Los Angeles, CA Plaintiff: Robert Myong, Henry M. Lee Law Corporation, Los Angeles, CA Defendant: Eugene S. Alkana, Law Office ofEugene Alkana, Pasadena, CA Defendant: Jonathan M. Turner, Epstein Turner Weiss P.C., Los Angeles, CA Defendant: Talin M. Gregorian, Epstein Turner Weiss P.C., Los Angeles, CA JUDGE: Michael L. Stern RANGE AMOUNT: $500,000 - 999,999 STATE: California COUNTY: Los Angeles SUMMARY PLAINTIFF: WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 5:20-cv-04124-VKD Document 1-3 Filed 06/22/20 Page 7 of 20 KO v. THE SQUARE GROUP L.L.C. DIBIA THE SQUARE... JVR No. 1503030036... Sex: F Age: Adult DEFENDANT: Sex: O Organization Type: The Square Group L.L.C. d/b/a The Square Supermarket Sex: O Organization Type: Ixzibit Inc. DAMAGES: Compensatory Pain & Suffering: $125,000 Compensatory Past Wages: $73,980 Compensatory Future Wages: $14,665 Compensatory Other: $ 1 0,000 Total Compensatory Award: $223,645 Punitive Damages: $500,000 Hedonic Damages: $0 Property Damages: $0 Interest: $0 Other Damages: $0 Loss 0f Services: $0 ADVERSE ACTION Closer Supervision: false Constructive Discharge: false Demotion: false Denial Tenure: false WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. Case 5:20-cv-04124-VKD Document 1-3 Filed 06/22/20 Page 8 of 20 KO v. THE SQUARE GROUP L.L.C. DIBIA THE SQUARE..., JVR No. 1503030036... Failure Accomodate: true Failure Grant Leave: true Failure Hire: false Failure Promote: false Suspension: false Sexual Harassment: false Harassment: false Hostile Work Env: false Isolation: false Lay Off: false Loss Benefits: false Loss Pay: true Loss Seniority: false Negative Eval: false Negative Reference: false Pay Increase Denial: false Reassignment: false Reduction Pay: false Reprimands: false Restrictions: false Termination: true Entity Type: ServiceIRetail Company STATUTES Primary Specific Statute WESTLAW © 201 7 Thomson Reuters. No claim to original U.S. Government Works. Case 5:20-cv-04124-VKD Document 1-3 Filed 06/22/20 Page 9 of 20 KO v. THE SQUARE GROUP L.L.C. DIBIA THE SQUARE..., JVR No. 1503030036... Primary Name: State Primary General Statute Primary Name: Disability Discrimination Primary General Statute Discrimination: true Specific Statute: General General Statute: Retaliation General Statute Discrimination: false Specific Statute: General General Statute: Wrongful Termination General Statute Discrimination: false Comparative Negligence Percentage: 0 FACTS: Eun J00 K0, a female former buyer and data entry employee, sued The Square Group L.L.C. d/b/a The Square Supermarket and alleged joint employer, Ixzibit Inc., a management company, for disability discrimination, failure t0 engage in a good faith interactive process, failure t0 provide a reasonable accommodation, retaliation, failure to prevent discrimination/retaliation, and wrongful termination in violation ofpublic policy and the Fair Employment and Housing Act (FEHA), and Cal. Govt. Code Secs. 12900 et seq. K0 also filed claims for failure to pay overtime wages, and failure to pay for missed meals and rest periods, pursuant to Labor Code Sec. 203 and Sec. 226.7. The plaintiff alleged that in January 2012, she experienced severe abdominal pains that prevented her from standing for long periods oftime or performing strenuous physical activity, which affected her ability to work. K0 asserted after she was diagnosed with a kidney infection, she was instructed to take a week off from work as part of her treatment and recovery, and she faxed a note from her doctor requesting medical leave. She claimed that her request for medical leave was denied without engaging in a good faith interactive process, that after she called and spoke with one of the store manager, she was instructed not to return to work, and to re-send the doctor's note, but the following day she was terminated. K0 argued that with reasonable accommodations, she could have continued t0 work in the same position as before, but the defendants discriminated against her by failing to provide her with a reasonable accommodation, terminated her in retaliation for taking medical leave, and that they acted with malice or oppression against her. According to the plaintiff, the majority 0f her duties involved Cleaning the store, reviewing the inventory for the housewares department, placing orders, setting up displays, stocking inventory, and receiving inventory, but she was not paid properly, and was owed wages for unpaid overtime, missed meals and rest breaks. The defendants denied the allegations and contended in the months prior to Ko’s termination, there were various complaints from other employees regarding her performance and conduct as a manager, that she left her tasks incomplete, failed to follow up on customer complaints as required, and failed to show up for work without explanation or advance notice. They also argued that Ko's kidney infection diagnosis was not a disability within the meaning of the FEHA, and that she was a manager, therefore, she was not entitled to hourly overtime wages. Furthermore, the defendants denied Ixzibit Inc. was a joint employer of the plaintiff. The jury found that Ixzibit Inc. was not an employer of the plaintiff, and returned a verdict in its favor. However, the jury found for the plaintiff against The Square Group L.L.C. on all claims and awarded her $41 ,047 in lost wages, $14,665 in future WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. 4 Case 5:20-cv-04124-VKD Document 1-3 Filed 06/22/20 Page 10 of 20 KO v. THE SQUARE GROUP L.L.C. DIBIA THE SQUARE... JVR No. 1503030036... loss earnings, $125,000 for emotional distress, $10,000 in lost benefits, and $500,000 in punitive damages. The jury also awarded the plaintiff $32,933 in unpaid overtime wages, missed meals and rest breaks. Jury Verdict Research COUR-T: Superior End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. 5 Case 5:20-cv-04124-VKD Document 1-3 Filed 06/22/20 Page 11 of 20 Behar vs. Union Bank, 25 Trials Digest 16th 14 (2013) 25 Trials Digest 16th 14, 2013 WL 3149227 (Ca1.Super.) (Verdict and Settlement Summary) Copyright (c) 2015 Thomson Reuters/West Supem'or Court, Los Angeles County, California. Behar vs. Union Bank TOPIC: Synopsis: Bank employees allege misconduct complaints led to termination Case Type: Labor & Employment; Discrimination; Labor & Employment; Age; Labor & Employment; Race/ National Origin; Labor & Employment; Termination/Constructive Discharge; Labor & Employment; Wage Disputes; Defamation; Other DOCKET NUMBER: BC427993 STATE: California COUNTY: Los Angeles Verdict/Judgment Date: April 9, 201 3 JUDGE: Abraham Khan ATTORNEYS: Plaintiff: Carney R. Shegerian, Shegerian & Associates, Santa Monica. Defendant: Karen M. Harkins, Pillsbury, Winthrop, Shaw & Pittman, San Diego; Paula Weber, Pillsbury, Winthrop, Shaw & Pittman, San Francisco. SUMMARY: VerdictlJudgment: Plaintiff Verdict/Judgment Amount: $2,563,630 Range: $2,000,000-4,999,999 $195, 142 to plaintiff Behar for past economic loss $606,466 to plaintiff Behar for future economic loss $550,000 to plaintiff Behar for past noneconomic loss $250,000 to plaintiff Behar for future noneconomic loss $143,275 to plaintiff Greek for past economic loss $43,747 to plaintiff Greek for future economic loss $600,000 to plaintiff Greek for past noneconomic loss WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 Case 5:20-cv-04124-VKD Document 1-3 Behar vs. Union Bank, 25 Trials Digest 16th 14 (2013) Filed 06/22/20 Page 12 of 20 $175,000 to plaintiff Greek for future noneconomic loss Trial Type: Jury Deliberations: Not reported. Jury P011: Not reported. EXPERTS: Plaintiff: Not reported. Defendant: Not reported. TEXT: CASE INFORMATION FACTSICONTENTIONS According to court records: Plaintiff Nimet Behar, a 49-year-old woman 0f Turkish ancestry and Middle Eastern national origin, worked for defendants Union Bank, Yvette Rosas, Ramin Behnam and Brian Skelton for four years, from November 2005 through September 2009, as a priority banking manager. Plaintiff Clorinda Greek, a 63-year- old woman of Spanish ancestry and Spain national origin, worked for defendants for 3 years from June 2006 through September 2009 as a priority banking associate. Plaintiff Behar said that in mid-July 2009, she told her branch manager, defendant Behnam, that defendant Rosas was falsifying numbers. Plaintiff Behar said she agreed to meet with Behnam, but Rosas also attended the meeting. Following the meeting, Rosas allegedly became demanding toward plaintiff Behalf. PlaintiffBehar said she was eventually terminated in retaliation for her complaints ab0ut defendant Rosas and because of her age. Plaintiff Greek claimed she also reported defendant Rosas, her immediate supervisor, for falsifying numbers in order to enhance her bonus. Plaintiff Greek said she was then terminated for allegedly contributing to a customer's business more than two years before she was fired. Plaintiff Greek alleged defendants terminated her employment in part in retaliation for her complaints about Rosas. Plaintiff Greek also claimed defendant Behnam made frequent comments about wanting “younger sales people,” and, according to plaintiff Greek, she was replaced by an employee who was about 25 years younger than she was. Plaintiffs alleged age discrimination and harassment, national origin or ancestry discrimination and harassment, failure to pay wages, breach of express and implied-in-fact contracts not to terminate employment without good cause, and defamation. According to plaintiffs, defendants made statements to others that plaintiffs were fired for misconduct. CLAIMED INJURIES NA CLAIMED DAMAGES According to court records: Not reported. WESTLA’W © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 Case 5:20-cv-04124-VKD Document 1-3 Filed 06/22/20 Page 13 of 20 Behar vs. Union Bank, 25 Trials Digest 16th 14 (201 3) SETTLEMENT DISCUSSIONS According to court records: Not reported. COMMENTS According to court records: The complaint was filed Dec. 14, 2009. Trials Digest, A Thomson Reuters/West business Los Angeles County Superior Court/Downtown End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 Case 5:20-cv-04124-VKD Document 1-3 Filed 06/22/20 Page 14 of 20 Kamali vs. California Department of Transportation, 37 Trlals Digest 16th 12 (201 2) 37 Trials Digest 16th 12, 2012 WL 9028840 (Ca1.Super.) (Verdict and Settlement Summary) Copyright (c) 2015 Thomson Reuters/West Superior Court, Los Angeles County, California, Kamali vs. California Department of Transportation TOPIC: Synopsis: Caltrans employee claims harassment, discrimination Case Type: Labor & Employment; Discrimination; Labor & Employment; Disability/Medical Condition; Labor & Employment; Harassment-General; Labor & Employment; Race/National Origin DOCKET NUMBER: BC426247 STATE: California COUNTY: Los Angeles Verdict/Judgment Date: December 20, 2012 JUDGE: David L. Minning ATTORNEYS: Plaintiff: Rob Hennig, Law Offices of Rob Hennig, Los Angeles; Robert Racine, Law Offices of Robert Racine, La Crescenta; Brandon Ruiz, Law Offices ofRob Hennig, Los Angeles. Defendant: David C. Rodriguez, Office of the Attorney General, Los Angeles. SUMMARY: Verdict/Judgment: Plaintiff Verdict/Judgment Amount: $663,983 Range: $500,000-999,999 $263,983 to plaintiff for past lost earnings and benefits $300,000 to plaintiff for future lost earnings and benefits $100,000 to plaintiff for past noneconomic loss The court, in judgment, awarded plaintiff $889,280 in attorney fees and $174,653 in costs. Trial Type: Jury Trial Length: Not reported. Deliberations: Not reported. WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 Case 5:20-cv-04124-VKD Document 1-3 Filed 06/22/20 Page 15 of 20 Kamali vs. California Department of Transportation, 37 Trials Digest 16th 12 (2012) EXPERTS: Plaintiff: Not reported. Defendant: Not reported. TEXT: CASE INFORMATION FACTSICONTENTIONS According to court records: Plaintiff Khosrow Kamali had been employed by defendant California Department of Transportation (Caltrans) since 1983 and most recently held the position of a Range C transportation engineer. Plaintiff claimed that prior to working under supervisor Sameer Haddadeen in 2006, plaintiff had never received a negative performance evaluation and had few work-related issues. Plaintiff claimed that in 2007 Haddadeen began a campaign of harassment and intimidation against him. Plaintiff said Haddadeen began recording plaintiff as absent and as being late, when he was not. Plaintiff claimed Haddadeen singled him out for constant surveillance to check on plaintiff‘s time reporting and would monitor to see that plaintiffwas at his work station. In addition, plaintiff claimed Haddadeen discriminated against him on the basis of his national origin by referring to him as “Persian.” Haddadeen allegedly reported plaintiff to state auditors alleging that he had misstated his time records and was defrauding the state of California, plaintiff claimed. In Oct. 2008 plaintiff reportedly requested that his work station be moved closer t0 the exit in order to accommodate his knee injury for which he used braces and parked in a disabled parking spot. Plaintiff claimed his requests were denied even after he provided documentation from his doctor regarding his disability. Plaintiffclaimed defendant also refused to offer an alternative accommodation. Plaintiff alleged harassment, discrimination, disability discrimination, retaliation, failure to engage in the interactive process, failure to provide reasonable accommodation and failure to prevent discrimination and harassment. Defendant denied liability. CLAIMED INJURIES NA CLAIMED DAMAGES According to court records: Not reported. SETTLEMENT DISCUSSIONS According to court records: Not reported. COMMENTS According t0 court records: The complaint was filed Nov. 9, 2009. WES'FLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 Case 5:20-cv-04124-VKD Document 1-3 Filed 06/22/20 Page 16 of 20 Kamali vs. California Department of Transportation. 37 Trials Digest 161h 12 (2012) Trials Digest, A Thomson Reuters/West business Los Angeles County Superior Court/Downtown End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 Case 5:20-cv-04124-VKD Document 1-3 Filed 06/22/20 Page 17 of 20 Rosales v. Career Systems Development Corp., Not Reported in F.Supp.2d (2010) 2010 WL 4220503 Only the Westlaw citation is currently available. This decision was reviewed by West editorial staffand not assigned editorial enhancements. United States District Court, E.D. California. Melvyn ROSALES, Plaintiff, v. CAREER SYSTEMS DEVELOPMENT CORPORATION, a Delaware corporation; and Does 1 through 10, inclusive, Defendants. No. CIV. 2:08-1383 WBS-KJM. | Oct. 20, 2010. Attorneys and Law Firms James C. Ashworth, MaryiAlice Coleman, Thomas B. Gill, Law Office of Mary-Alice Coleman, Davis, CA, for Plaintiff. Jonathan D. Andrews, Shauna Lee Michelle Durrant, Andrews Lagasse Branch and Bell LLP, San Diego, CA, for Defendants. ORDER WILLIAM B. SHUBB, District Judge. *1 Jury trial was commenced in this matter on August 10, 2010. After plaintiff rested his case in chief, defendant Career Systems Development Corporation moved for judgment as a matter 0f law, pursuant to Rule 50(a) of the Federal Rules of Civil ProcedureA The court took the motion under submission, pursuant to Rule 50(b), and the matter was submitted to the jury. On August 20, 2010, the jury returned a partial verdict in favor of plaintiff on his claim of age discrimination, and awarded damages in the sum of $238,000. Thejury failed to agree upon a verdict on plaintiff‘s claim of race discrimination, and further failed to agree on the question of whether plaintiff was entitled to punitive damages. The court accordingly declared a mistrial on plaintiffs claims of race discrimination and punitive damages and discharged the jury. On September 20, 2010, the court heard arguments on plaintiff‘s Rule 50(a) motion, granted the motion on plaintiff‘s claim of race discrimination, denied the motion on plaintiff‘s claim for age discrimination, and set the matter for new trial on the issue of punitive damages on the age discrimination claim on March 22, 201 1. Presently before the court is defendant's renewed motion forjudgment as a matter oflaw pursuant to Rule 50(b), or in the alternative for new trial pursuant to Rule 59(a) of the Federal Rules of Civil Procedure, on the grounds that the evidence was insufficient to support the verdict. A motion for judgment as a matter of law on a claim may be granted under Rule 50 only if there was no legally sufficient basis for a reasonable jury t0 find for the plaintiff on that claim. Costa v. Desert Palace, Ina, 299 F.3dd 838, 859 (9th Cir.2002). The court must draw all reasonable inferences in favor of the plaintiff and may not make credibility determinations or weigh the evidence. Johnson v. Paradise Valley Unified Sch. Dist., 25], F.3d 1222, 1217 (9th Cir.2001). No new arguments have been presented in support of defendant's renewed motion which were not considered by the court in ruling on the original motion under Rule 50(a). For the reasons previously expressed, the court concludes that there was substantial evidence to support the jury's award 0n plaintiff‘s claim of age discrimination. As previously found, however, the court concludes that the evidence was insufficient for a reasonable jury to find in favor of plaintiff on his claim of race discrimination. The court also reaffirms its finding that there was sufficient evidence to go to the jury on plaintiff‘s claim for punitive damages on his age discrimination claim. A new trial may be granted under Rule 59(a) when the verdict is against the clear weight of the evidence such that the court is left with the definite and firm conviction that a mistake has been made. Silver Sate Partners, Ltd. v. City 0f Desert Hot Springs, 251 F.3d 814, 819 (9th Cir.2001); Landes Const. C0,, Inc. v. Royal Bank ofCanada, 833 F.2d 1365, 1371-72 (9th Cir.1987). The court has no reason to conclude that the jury made a mistake in this case. WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 Case 5:20-cv-04124-VKD Document 1-3 Filed 06/22/20 Page 18 of 20 Rosales v. Career Systems Development Corp., Not Reported In F.Supp.2d (2010) AND IT IS FURTHER ORDERED that defendant‘s motion in the alterative for a new trial be, and the same hereby is, DENIED. As stated, there was substantial evidence to support the verdict on plaintiff‘s claim based on age discrimination. *2 IT IS THEREFORE ORDERED that defendant's renewed motion for judgment on plaintiff‘s claim of age All Citations discrimination for punitive damages on that claim be, and the same hereby is, DENIED; Not Reported in F.Supp.2d, 2010 WL 4220503 End of Document © 201 7 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 Case 5:20-cv-04124-VKD Document 1-3 Filed 06/22/20 Page 19 of 20 Nimachia Hernandez v. The Regents of the University of..., 2009 WL 3359039... 2009 WL 3359039 (Cal.Superior) (Verdict and Settlement Summary) Copyright (c) 2015ALM Media Properties, LLC. All Rights Reserved Superior Court, Alameda County, California. Nimachia Hernandez v. The Regents of the University of California No. RG06272564 DATE OF VERDICT/SETTLEMENT: September 25, 2009 TOPIC: EMPLOYMENT - DISABILITY DISCRIMINATION - EMPLOYMENT - RACE DISCRIMINATION - EDUCATION - COLLEGES - EMPLOYMENT - WRONGFUL TERMINATION - EMPLOYMENT - FAILURE TO ACCOMMODATE - EMPLOYMENT - NATIONAL ORIGIN DISCRIMINATION - EMPLOYMENT - RETALIATION Fired Assistant Professor Sued for Disability Discrimination SUMMARY: RESULT: Verdict-Plaintiff The jury found that the university did not discriminate against Hernandez, but that it failed to engage in an interactive process to accommodate her and that it retaliated against her for demanding reasonable accommodations. The jury awarded $266,347. EXPERT WITNESSES: Plaintiff: Dwight Jennings, D.D.S.; TMJ; Oakland, CA Gerald Vizenor; Native American Issues; Berkeley, CA Harry Friedman, D.O., F.A.A.O.; Osteopathy; San Jose, CA Margo R. Ogus, Ph.D.; Economics; Mountain View, CA Peter Edgelow, Ph.D.; Physical Therapy; Hayward, CA Tracy Newkirk, M.D.; Neurology; San Rafael, CA Wladislaw V. Ellis, M.D.; Neuropsychiatry; Berkeley, CA Defendant: Charles S. Cobbs, M.D.; Neurosurgery; San Francisco, CA Charles Skomer, M.D.; Neurology; San Francisco, CA ATTORNEYS: Plaintiff: Dan Siege]; Siegel & Yee; Oakland, CA (Nimachia Hernandez); Anne Butterfield Weills; Siegel & Yee; Oakland, CA (Nimachia Hernandez) Defendant: Michael T. Lucey; Gordon & Rees, L.L.P.; San Francisco, CA (The Regents ofthe University of California); Michael A. Laurenson; Gordon & Rees, L.L.P.; San Francisco, CA (The Regents of the University of California) JUDGE: Winifred Smith RANGE AMOUNT: $200,000-499,999 STATE: California COUNTY: Alameda INJURIES: Hernandez sought recovery for loss of earnings and pain and suffering. WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. ‘l Case 5:20-cv-04124-VKD Document 1-3 Filed 06/22/20 Page 20 of 20 Nimachia Hernandez v. The Regents of the University of..., 2009 WL 3359039... Facts: In August 2006, plaintiff Nimachia Hernandez, 45, was terminated from her position as an assistant professor in the ethnic studies department at University of California, Berkeley. Hernandez sued the university for discrimination on the basis of disability and ethnic origin, failure to accommodate, failure to engage in the interactive process and retaliation for demanding reasonable accommodation of her disabilities. Hernandez claimed that she was injured first in an assault and then in a car accident in July 2003 and that the university should have given her more time and voice-activated computer software and ergonomic furniture to help her work. The plaintiff also claimed that the university discriminated against her for her disability and her Native American ancestry when it terminated her employment after a routine review of her work after her “Mid-Career Review.” The university contended that it provided Hernandez with numerous accommodations in the form of equipment, additional time to complete her Mid-Career Review and more paid leave than any other faCulty member had ever received before. Defense counsel argued that the Mid-Career Review decision that her chances for tenure were poor was based on her lack of progress pre-disability. ALM Properties, Inc. Superior Court of Alameda County, Alameda PUBLISHED IN: VerdictSearch California Reporter Vol. 8, Issue 41 End of Document © 2017 Thomson Reuters. No claim lo original U.S. Government Works. WESILAW © 2017 Thomson Reuters. No claém to original U.S. Government Works. 2 EXHIBIT 4 Case 5:20-cv-04124-VKD Document 1-4 Filed 06/22/20 Page 1 of 9 Case 5:20-cv-04124-VKD Document 1-4 Filed 06/22/20 Page 2 of 9 Denenberg vs. California Department of Transportation, 40 Trials Digest 10th 17 (2006) 4o Trials Digest 10th 17, 2007 WL 2827715 (Cal.Super.) (Verdict and Settlement Summary) Copyright (c) 2015 Thomson Reuters/West Superior Court, San Diego County, California. Denenberg vs. California Department of Transportation TOPIC: Synopsis: Employee alleges discrimination based on sexual orientation Case Type: Labor & Employment; Discrimination; Labor & Employment; Harassment-Sexual; Labor & Employment; Retaliation; Labor & Employment; Termination/Constructive Discharge; Labor & Employment; Disability/Medical Condition DOCKET NUMBER: GIC836582 STATE: California COUNTY: San Diego Verdict/Judgment Date: September 14, 2006 JUDGE: Steven R. Denton ATTORNEYS: Plaintiff: Paul D. Jackson, Law Offices 0f Paul D. Jackson, San Diego; David M. deRubertis (lead at trial), deRubertis Law Firm, Woodland Hills. Defendant: Julie A. Jordan, Department of Transportation, San Diego; Christopher Welsh, Department of Transportation, San Diego. SUMMARY: Verdict/Judgment: Plaintiff Verdict/Judgment Amount: $144,000 (Range: $100,000 - $199,999) The jury awarded plaintiff $1 19,000 in economic damages and $25,000 in non-economic damages, for a total of $144,000. The court also granted plaintiffs post-verdict motion for equitable relief, ordering defendant t0 promote plaintiff to an Associate level position within the locale, subject to plaintiffs successful completion of the standard probationary terms that would otherwise be applicable to any new employee. It further ordered that, upon the successful completion of the probationary period, plaintiff‘s promotion would be retroactive to January 31, 2006, with all related benefits, seniority, and service credits also retroactive to that date. The court awarded plaintiff approximately $490,000 in statutory attorney fees and approximately $133,000 in costs of suit. The total judgment was approximately $767,000, plus the equitable relief of a retroactive promotion. That equitable relief order will result in an additional approximately $12,000 of annual earnings for plaintiff through his work life, as well as adjustments in his retirement benefits. Trial Type: Jury Trial Length: 4 weeks. WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 Case 5:20-cv-04124-VKD Document 1-4 Filed 06/22/20 Page 3 of 9 Denenberg vs. California Department of Transportation, 40 Trials Digest 10th 17 (2006) Deliberations: Not reported. Jury Poll: Not reported. EXPERTS: Plaintiff: Christopher H. Benbow, M.D., psychiatrist, La Jolla, (858) 622-0590.; Brian P. Brinig, C.P.A., J.D., economist, Brinig & Company, San Diego, (619) 687-2600.; George J. Pratt, Ph.D,, psychologist, Scripps Memorial Hospital, La Jolla, (858) 457-3900.; Michael A. Robbins, human resources consultant, EXTTI Inc., Bell Canyon, (818) 712-0203. Defendant: Mark A. Kalish, M.D., psychiatrist, San Diego, (619) 282-7172. TEXT: CASE INFORMATION FACTSICONTENTIONS According to Plaintiff: Plaintiff Fred Denenberg, a gay male, worked as an Assistant Administrator for defendant California Department of Transportation (CalTrans). Since his hiring in 1998, he consistently received excellent performance reviews. Plaintiffclaimed that over a period ofabout ayear and a half, he was harassed based on his sexual orientation. The harassment consisted of perceived sexual advances, derogatory comments about his orientation, and a degrading homophobic e-mail. Since about 1999, plaintiff repeatedly sought a promotion to the Associate level, which was the level immediately above his Assistant level. The Assistant level position was an entry-leve] position, and it was typically expected that a promotion to Associate would occur in a relatively short time after reaching the Assistant level. However, plaintiff‘s promotion requests were repeatedly denied. Among other reasons for the denial, plaintiff was told that budgetary constraints within CalTrans prevented him from being promoted. On July 1, 2004, the claimed budgetary constraints and promotion freeze were lifted. Deputy Director of Traffic Operations, Joseph Hull, promised plaintiff at that time that his promotion t0 the Associate level would be processed. By late August 2004, plaintiff‘s direct supervisor had still not completed processing the paperwork needed for plaintiff to receive the promised promotion. Plaintiff‘s complaints to Mr. Hull about this fact fell on deaf ears. Concluding that CalTrans was not going to promote him, plaintiff sought legal counsel at that time from Paul Jackson, Esq. On August 27, 2004, Mr. Jackson wrote a letter to CalTrans's upper management, which both informed CalTrans of the sexual orientation harassment and claimed that CalTrans had serially failed to promote plaintiff because of his sexual orientation. After CalTrans received this letter, plaintiff‘s superiors and co-workers began to retaliate against him, including by making accusations 0f misconduct against him. In late September 2004, plaintiff‘s psychologist placed him on a leave of absence because of depression and stress, secondary to problems at the workplace. As a result of this leave of absence, CalTrans stopped processing plaintiff‘s promised promotion. In August 2005, plaintiffwas released to return to work on a telecommuting basis. CalTrans, through Mr. Hull, denied the requested accommodation of telecommuting without giving it a chance. Then, plaintiff's psychologist adjusted the accommodation request so that plaintiff could return to the workplace, provided that his face-to-face interaction with various co-workers who had retaliated against him was minimized. Mr. Hull also denied this accommodation, despite the fact that there were other offices or desks within the facility that could have been used t0 accommodate plaintiff‘s needs. When plaintiff was finally released to return to work without any restrictions, CalTrans responded by claiming that it had eliminated plaintiff‘s position. Over a period 0f approximately one year, CalTrans offered plaintiff six other positions that were equivalent, or nearly equivalent, to the position he was working in when he began the leave of WES‘FLAW © 2017 Thomson Reuters. No claim to original U,S. Government Works. 2 Case 5:20-cv-04124-VKD Document 1-4 Filed 06/22/20 Page 4 of 9 Denenberg vs. California Department of Transportation, 4O Trials Digest 10th 17 (2006) absence. Plaintiff declined all of these positions. At the time of trial, plaintiff was still employed at CalTrans but on administrative leave. Plaintiff claimed that CalTrans‘s refusal to promote him in September 2004 was in retaliation for his August 27, 2004 letter complaining of harassment and discrimination and that CalTrans's reason for not promoting him (that he went out on leave) constituted retaliation for seeking accommodations and disability discrimination. Plaintiff also alleged that CalTrans failed to accommodate him, both by not allowing him to telecommute and by not allowing him to return to the office and work at a different location. Plaintiff further alleged that he was harassed because ofhis sexual orientation. Defendant denied any wrongdoing. It contended that plaintiff had not been promoted because of the state budget crisis, the CalTrans budget, and lack of Workload. It also claimed that plaintiffhad not been eligible for the promotion he sought. Defendant contended that it had begun processing a promotion for plaintiff at the time plaintiff took his leave, but that it could not promote someone who was not working. Finally, defendant denied knowledge of the claimed harassment. CalTrans also claimed that any emotional distress plaintiff suffered was due to other stressors, such as a tumultuous relationship with his domestic partner, who suffered from chronic medical problems. CalTrans introduced evidence of domestic discord, including allegations of domestic abuse, and also impeached plaintiff‘s testimony that he had never been involved in any other lawsuits by introducing numerous lawsuits that plaintiff had either filed or that were filed against him. CLAIMED INJURIES According to Plaintiff: Emotional distress. CLAIMED DAMAGES According to Plaintiff: Lost earnings; medical damages. SETTLEMENT DISCUSSIONS According to Plaintiff: Demand: $225,000, plus a promotion. Offer: $75,000 without a permanent promotion. COMMENTS According to Plaintiff: Defendant's motion for new trial was denied, and it has appealed. Plaintiffs counsel, Paul Jackson, litigated the case on plaintiff‘s behalf. The day before trial call, plaintiff retained David deRubertis to serve as lead trial counsel. Trials Digest, A Thomson/West business San Diego County Superior Court/Central End ol' Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 Case 5:20-cv-04124-VKD Document 1-4 Filed 06/22/20 Page 5 of 9 McMillIan vs. City of Los Angeles, 43 Trials Digest 12th 11 (2009) 43 Trials Digest 12th 11, 2009 WL 3340040 (Cal.Superior) (Verdict and Settlement Summary) Copyright (c) 2015 Thomson Reuters/West Superior Court, Los Angeles County, California. McMillian vs. City of Los Angeles TOPIC: Synopsis: SETTLEMENT -- Workers say promotions denied based 0n race Case Type: Labor & Employment; Race/National Origin; Labor & Employment; Discrimination DOCKET NUMBER: BC298898 STATE: California COUNTY: Los Angeles Verdict/Judgment Date: April 22, 2009 JUDGE: Lee S. Edmon ATTORNEYS: Plaintiff: David Peter Cwiklo, Law Offices of David Peter Cwiklo, Woodland Hills. Defendant: Shanise Black, Office 0f City Attorney, Los Angeles; Rockard J. Delgadillo, Office of City Attorney, Los Angeles; Zna Portlock Houston, Office of City Attorney, Los Angeles; Jorge M. Otano, Office of City Attorney, Los Angeles. SUMMARY: Verdict/Judgment: Settlement Verdict/Judgment Amount: $900,000 Range: $500,000-$999,999 The city agreed to settle plaintiff McMillian's claims for $900,000. Trial Type: Settlement EXPERTS: Plaintiff: Alban A. Bullock, M.D., surgeon, Arleta.; Christopher Chen, M.D., orthopedic surgeon, Berkeley, (510) 647-1200.; David H. Cheung, M.D., physiatrist, Bellflower.; Oliver Q. Nguyen, M.D., internist, Bellflower.; Edward Stokes, M.D., orthopedic surgeon, Glendale. Defendant: Not reported. TEXT: CASE INFORMATION FACTSICONTENTIONS WESTLAW © 201 7 Thomson Reuters. No claim to original U.S. Government Works. 1 1 Case 5:20-cv-04124-VKD Document 1-4 Filed 06/22/20 Page 6 of 9 Mchlllan vs. City of Los Angeles, 43 Trials Digest 12th 11 (2009) According to court records: Plaintiffs Lloyd McMillian, Alan Bonner, and Dwayne Allen were employed with defendant City 0f Los Angeles. In 2001, plaintiffs sought promotion to the position of Wastewater Collection Supervisor with defendant's Department of Public Works, Bureau of Sanitation. The Interdepartmental examination process started August 24, 2001 and continued through February 2002, when the Personnel Department posted the exam results on a document known as the “Register of Eligibles.” In April 2002, the Bureau of Sanitation appointed four candidates to the position ofWastewater Collection Supervisor. None of the plaintiffs were selected, but their exam results were preserved for two years in accordance with the Rules of Civil Service. According to defendant, additional exams usually were not administered by the Personnel Department while a Register of Eligibles remained active within its two-year life span. However, the Personnel Department held a second examination for the position of Wastewater Collection Supervisor in September 2002. Both new applicants and previous test-takers were eligible to apply for the second exam. Plaintiff Allen was the only plaintiffwho participated in the second exam. After the results were released in November 2002, the Bureau of Sanitation promoted four more candidates in March 2003. Once again, plaintiffs were not selected. Three months later, defendant promoted plaintiffs Allen and Bonner and two other candidates to the position of Wastewater Collection Supervisor. Four months later, it promoted plaintiff McMillian and another candidate. All employees promoted to Wastewater Collection Supervisor were subject to a six-month probationary period. Plaintiffs Allen and Bonner passed their six-month probation, but plaintiff McMillian did not. Plaintiffs alleged defendant failed to promote them because they were African-American. Specifically, plaintiffs claimed the Executive Management at the Bureau of Sanitation arranged for the Personnel Department to conduct a second exam to advance a Caucasian employee named Kent Carlson. Plaintiffs further claimed that they were unfairly denied educational and training opportunities that Caucasian employees received. Defendant denied all of plaintiffs' claims. CLAIMED INJURIES According to court records: Emotional distress. CLAIMED DAMAGES According to court records: Not reported. SETTLEMENT DISCUSSIONS According to court records: Not reported. COMMENTS According to court records: In an earlier trial, a jury awarded plaintiff McMillian $1,011,774 damages, plaintiff Bonner $153,414 damages, and plaintiffAllen $203,414 damages. The verdict was reversed on appeal on all issues but damages for retaliation. The Court of Appeal concluded there was sufficient evidence to support a retaliation cause of action and remanded the case to WESTLA‘W © 2017 Thomson Reuters. No claim to original lJ.S. Government Works. 2 Case 5:20-cv-04124-VKD Document 1-4 Filed 06/22/20 Page 7 of 9 McMIIIian vs. City of Los Angeles, 43 Trials Dlgest 12th 11 (2009) determine “damages to be awarded to McMillian 0n his cause of action for retaliation.” A report on the earlier trial appears at 5 TD 9th 11 and at 2005 WL 3729094. Trials Digest, A Thomson Reuters/West business. Los Angeles County Superior Court/Downtown End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. 3 Case 5:20-cv-04124-VKD Document 1-4 Filed 06/22/20 Page 8 of 9 Gallegos vs. Los Angeles City College, 11 Trials Digest 7th 4 (2003) 11 Trials Digest 7th 4, 2003 WL 23336379 (Ca1.Superior) (Verdict and Settlement Summary) Copyright (c) 2015 Thomson Reuters/West Superior Court, Los Angeles County, California. Gallegos vs. Los Angeles City College TOPIC: Synopsis: Employee alleges wrongful termination based 0n sexual orientation Case Type: Employment; Termination; Discriminatory DOCKET NUMBER: SC270424 STATE: California COUNTY: Los Angeles Verdict/Judgment Date: October 16, 2003 JUDGE: Ricardo A. Torres ATTORNEYS: Plaintiff: Charles T. Mathews, Mathews & Rager, Pasadena.; Jeffrey A. Rager, Mathews & Rager, Pasadena. Defendant: Ray Artiano, Stutz, Artiano, Shinoff & Holtz, San Diego; Lesa Wilson, Stutz, Artiano, Shinoff & Holtz, San Diego. SUMMARY: Verdict/Judgment: Plaintiff Verdict/Judgment Amount: $2 l 0,082 Range: $200,000-$499,999 Plus $1 59,277 attorney fees. Trial Type: Jury Trial Length: 2 weeks. Deliberations: Not reported. Jury Poll: Not reported. EXPERTS: Plaintiff: Not reported. Defendant: Not reported. TEXT: WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. 1 Case 5:20-cv-04124-VKD Document 1-4 Filed 06/22/20 Page 9 of 9 Gallegos vs. Los Angeles City College, 11 Trials Digest 7th 4 (2003) CASE INFORMATION FACTSICONTENTIONS According to Plaintiff: An employee alleged wrongful termination based 0n his sexual orientation. The plaintiff was Joseph Gallegos, director of workforce education. The defendant was Los Angeles Community College. On July l, 1999, plaintiff‘s supervisor, Pashazadeh, was removed from his position as chair of the business department. Plaintiff alleged that his supervisor had discriminated against him because of his sexual orientation. Plaintiff filed a workers compensation claim in August 2000 and was told to drop the claim by his supervisor. Plaintiff was terminated in June 2001, and alleged that his firing was retaliatory. CLAIMED INJURIES According to Plaintiff: Emotional Distress. CLAIMED DAMAGES According to Plaintiff: Emotional distress damages; loss of earnings. SETTLEMENT DISCUSSIONS According to Plaintiff: Demand: Not reported. Offer: $30,000. COMMENTS According to Plaintiff: Defendant's motion for JNOV/new trial was denied; an appeal is pending. Trials Digest, A Thomson/West business Los Angeles County Superior Court/Downtown End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. WESTLAW © 2017 Thomson Reuters. No claim to original U.S. Government Works. 2 \OOOQON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am a resident 0f the State 0f California, over the age 0f eighteen years, and not a party t0 the Within action. My business address is 400 Capitol Mall, Suite 2350, Sacramento, California 95814- 4428. On June 24, 2020, I served the within document(s): DEFENDANT’S NOTICE TO SUPERIOR COURT AND ADVERSE PARTY OF NOTICE OF REMOVAL OF ACTION TO THE U.S. DISTRICT COURT by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid,I in the United States mail at Sacramento, California, addressed as set forth below. D by personally delivering the document(s) listed above t0 the person(s) at the address(es) set forthbelow. by placing the document(s) listed above, together With an unsigned copy 0f this declaration, in aD sealed envelope or package provided by an overnight delivery carrier with postage paid 0n account and deposited for collection with the overnight carrier at Sacramento, California, addressed as set forth below. D by transmitting the document(s) listed above, electronically, Via the e-mail addresses set forthbelow. Howard L. Magee Attorneys for Plaintiff Larry W. Lee Max W. Gavron Tel: (213) 488-6555 Diversity Law Group, P.C. Fa?“ (213) 488-6554 515 S. Figueroa Street, Suite 1250 Los Angeles, CA 90071 William L. Marder Attorneys for Plaintiff Polaris Law Group, LLP 501 San Benito Street, Suite 200 T613 (83 1) 531-4214 Hollister, CA 95023 Faxr (83 1) 634-0333 I am readily familiar with the firm's practice 0f collection and processing correspondence for mailing. Under that practice it would be deposited With the U. S. Postal Service 0n that same day with postage thereon fully prepaid 1n the ordinary course 0f business. I am aware that 0n motion 0f the party served, service is presumed invalid if postal cancellation date 0r postage meter date 1s more than one day after date 0f deposit for mailing 1n affidavit. I declare under penalty 0f perjury under the laws 0f the State of California that the above is true and correct. Executed 0n June 24, 2020, at Sacramento, California. Crystaul Hollman PROOF OF SERVICE 64501254v.1