Opposition ObjectionsCal. Super. - 6th Dist.May 11, 2020\OOONONU‘I-PUJNH NNNNNNNNNt-tr-th-tr-th-tt-tr-tt-tr-th-t OOQONU‘I-PUJNP-‘OKOOOQONU‘I-PUJNF-‘O 200V366569 Santa Clara - Civil Ji-In Lee Houck (SBN 280088) Cindy Hickox (SBN 323016) STALWART LAW GROUP 1100 Glendon Ave., Suite 1840 Los Angeles, California 90024 Telephone: (3 10) 954-2000 Email: jiin@stalwart1aw.com Email: cindy@stalwartlaw.com Attorneys for PlaintiffMANUEL FUENTES Electronically Filed by Superior Court of CA, County of Santa Clara, on 9/9/2020 1:22 PM Reviewed By: L. Nguyen Case #20CV366569 Envelope: 4902791 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA MANUEL PUENTES, an individual, Plaintiff, VS. TRANSPAK, INC., a California corporation; and DOES 1 through 10, inclusive, Defendants. Case No.: 20CV366569 [Assigned t0 the Hon. Sunil R. Kulkami, Department 8] PLAINTIFF’S COMBINED OPPOSITION TO DEFENDANT’S DEMURRER AND MOTION TO STRIKE Date: September 22, 2020 Place: Dept. 8 Time: 9:00 a.m. Complaint Filed: May 11, 2020 1 OPPOSITION TO DEMURRER AND MOTION TO STRIKE \OOONONU‘I-PUJNH NNNNNNNNNt-tr-th-tr-th-tt-tr-tt-tr-th-t OOQONU‘I-PUJNP-‘OKOOOQONU‘I-PUJNF-‘O MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Manuel Fuentes (“Plaintiff’) worked at Transpak, Inc. (“Defendant” 0r “Transpak”) for approximately two-and-a-half years when he was wrongfully terminated for complaining about unsafe working conditions at the plant. Plaintiff complained t0 his superiors and t0 the Department 0f Occupational Health and Safety (“DOSH”) regarding various Violations 0f the Cal. Code of Regulations. Days after DOSH completed their investigation, Plaintiff was terminated for a false and pretextual reason: that he got into an altercation With another coworker. Importantly, despite the other coworker engaging in the exact same behavior as Plaintiff, the other coworker was not terminated, and continues to work at Transpak to this day. The other coworker, notably, did not engage in the same protected activity as Plaintiff. As such, this “altercation” was not the real reason for Plaintiff’ s termination, and Plaintiff s coworker is a clear comparator t0 show that such an incident should not have brought about any discharge. In addition, on November 18, 2019, Plaintiff sent a request for his personnel file and wage statements pursuant to Cal. Lab. Code §§ 226, 432, and 1198.5, t0 Transpak’s Agent for Service of Process. Defendant’s response to Plaintiff’ s request was both late and incomplete. T0 date, Plaintiff has yet to receive a complete production 0f his personnel file and wage statements. As a result, Plaintiffnow brings claims 0f retaliation in Violation of Cal. Lab. Code § 1102.5, wrongful termination in Violation 0f public policy, failure to provide personnel file in Violation 0f Cal. Lab. Code § 1198.5, and failure t0 provide complete wage statements in Violation of Cal. Lab. Code § 226(a) against Transpak. The facts pled show that Plaintiff reasonably believed a Violation 0f law occurred, that he complained t0 both his superiors at Transpak and DOSH, that he was terminated, and that his termination and protected activity were causally connected. In addition to timing, Plaintiff was provided a false and pretextual reason that he was terminated because 0f an altercation both he and another coworker were involved in. The other coworker still works at Transpak t0 this day. Plaintiff, unlike his coworker, complained about unsafe working conditions at Transpak, both internally at Transpak and externally to a governmental agency. In addition, the facts pled show 1 OPPOSITION TO DEMURRER AND MOTION TO STRIKE \OOONONU‘I-PUJNH NNNNNNNNNt-tr-th-tr-th-tt-tr-tt-tr-th-t OOQONU‘I-PUJNP-‘OKOOOQONU‘I-PUJNF-‘O that Plaintiff requested his personnel file and wage statements pursuant to the Cal. Lab. Code, and that Defendant did not timely and completely comply with the Cal. Lab. Code requirements. As such, this demurrer must be overruled and the motion t0 strike denied. In the unlikely event the Court sustains the demurrer and/or grants the motion to strike, Plaintiff requests leave to amend the Complaint to include additional facts regarding Transpak’s wrongful termination of Plaintiff and failure t0 comply with the Cal. Lab. Code. II. STATEMENT OF FACTS A. Procedural Background On November 18, 2019, Plaintiff mailed Defendant’s Agent for Service of Process a demand for copies 0f Plaintiff s personnel and payroll records pursuant t0 Cal. Lab. Code §§ 226(b), 432, and 1198.5. Hickox Decl., 1] 3, EX. 1. On February 12, 2020, Defendant’s counsel sent Plaintiff’ s counsel a letter acknowledging Plaintiff” s November 18, 2019 demand, and provided some, but not all, 0f Plaintiff’ s requested documents. Hickox Decl., fl 5, EX. 2. Plaintiff filed his Complaint on May 11, 2020 with four causes 0f action: (1) retaliation in Violation 0f Cal. Lab. Code § 1102.5; (2) wrongful termination in Violation of public policy; (3) failure t0 provide personnel file in Violation 0f Cal. Lab. Code § 1198.5; and (4) failure to provide complete wage statement in Violation 0f Cal. Lab. Code § 226(a). Hickox Decl., 1] 6, EX. 3 (Plaintiff s Operative Complaint). B. Plaintiff’s Factual Allegations Plaintiff alleged the following facts in his Complaint: 0 Since July 3, 2017, Plaintiff worked at Transpak as a Production Planner. Throughout his approximately two-and-a-half-year tenure at Transpak, Plaintiff competently performed his duties and earned several progressive and merit-based promotions. Complaint, EX. 3, fl 7. o On or about October 4, 2019, Plaintiff complained t0 his Warehouse Supervisor and the Quality Inspection Supervisor about fumes he observed in the warehouse. Plaintiff explained that the hot melt machine in the warehouse was creating dangerous fumes that were not being properly ventilated. The fumes were so bad, 2 OPPOSITION TO DEMURRER AND MOTION TO STRIKE \OOONONU‘I-PUJNH NNNNNNNNNt-tr-th-tr-th-tt-tr-tt-tr-th-t OOQONU‘I-PUJNP-‘OKOOOQONU‘I-PUJNF-‘O Plaintiffwas not only able t0 smell the fumes, he could see the fumes. Plaintiff asked his supervisors how it could be fixed. Instead of meaningfully considering options t0 address Plaintiff’ s concerns, his supervisors suggested he just open the door. Id. at fl 8. Plaintiffwas certain his supervisors’ “solution” was insufficient. Transpak needed serious ventilation systems in place t0 address the fumes the machines were emitting. The warehouse’s improper ventilation was a health hazard t0 him and other warehouse workers. On or about the same day, Plaintiff filed a complaint with the Division of Occupational Safety and Health (“DOSH”). Id. at 1] 9. A few days later, Plaintiff received a response from DOSH, indicating that DOSH had notified Transpak of his complaint which alleged “[p]0tential concerns associated with failure t0 conduct monitoring for vapors from the glue burning operations in the warehouse, and provide proper ventilation.” Id. at 1] 10. In the weeks following Plaintiff s reporting to DOSH, Rene Corona, Transpak’s Chief Operating Officer and Plaintiff” s primary supervisor, called a team meeting. When Mr. Corona announced the meeting, he specifically stated, “We have t0 have a meeting because someone must have reported to OSHA.” Mr. Corona directed his comment towards Plaintiff by looking directly at him and emphasizing in a snide manner that someone had reported Violations with Transpak. Id. at 1] 11. On November 5, 2019, DOSH advised Plaintiff that their investigation was complete and that he could further reach out if the issue persisted. Id. at 11 12. Three days later, 0n November 8, 2019, Plaintiff was terminated for a false, pretextual reason. Transpak allegedly terminated Plaintiff because of his involvement in an altercation. However, the other employee that instigated the altercation was not terminated. On information and belief, a substantial motivating reason for Transpak’s decision t0 terminate Plaintiff was because 0f 3 OPPOSITION TO DEMURRER AND MOTION TO STRIKE \OOONONU‘I-PUJNH NNNNNNNNNt-tr-th-tr-th-tt-tr-tt-tr-th-t OOQONU‘I-PUJNP-‘OKOOOQONU‘I-PUJNF-‘O Plaintiff s reporting of unsafe working conditions t0 DOSH, which was made in good faith t0 report what he reasonably believed to be illegal. Id. at 1] 13. 0 Plaintiff reasonably believed that Transpak violated numerous sections of the Cal. Code of Regulations (“CCR”), as enforced by DOSH, including: CCR § 5 155, which establishes requirements for controlling employee exposure t0 airborne contaminants and skin contact With those substances Which are readily absorbed through skin; CCR § 5 143, which establishes requirements regarding the construction, installation, inspection, testing, and maintenance of exhaust systems in the workplace; and CCR § 5 141, which establishes requirements t0 control harmful exposure t0 employees by way of engineering controls, administrative controls, or control by respiratory protective equipment. Id. at fl 17. o Defendant did not provide Plaintiff with a copy of his personnel file within 30 days of a written request for the same. Id. at 1] 33. o Defendant did not provide Plaintiff with a copy of his wage statements within 21 calendar days from the date of Plaintiff” s written request. Further, Defendant did not provide a complete production 0f Plaintiff’ s wage statements. Plaintiff worked at Transpak since 2017, yet he only received wage statements form 2019 onward. Id. at fl 38. Plaintiff further anticipates that through discovery Plaintiff will learn that Defendant further acted With reckless, willful or callous disregard for Plaintiff’ s rights and With malice, fraud 0r oppression towards Plaintiff, thereby entitling Plaintiff t0 an award 0f punitive damages in accordance With proof at trial. C. Meet and Confer Efforts On June 16, 2020, Defendant’s counsel emailed Plaintiff’s counsel a meet and confer letter regarding purported deficiencies in Plaintiff s complaint. Hickox Dec1., 1] 7, EX. 4. On June 18, 2020, Plaintiff responded t0 Defendant’s letter. Hickox Decl., 1] 8, EX. 5. On July 14, 2020, Defendant’s counsel sent another meet and confer letter to Plaintiff” s counsel, and shortly thereafter sought t0 meet and confer Via telephone. Hickox Decl., 1] 9 - 10, EX. 6. On 0r about 4 OPPOSITION TO DEMURRER AND MOTION TO STRIKE \OOONONU‘I-PUJNH NNNNNNNNNt-tr-th-tr-th-tt-tr-tt-tr-th-t OOQONU‘I-PUJNP-‘OKOOOQONU‘I-PUJNF-‘O July 15, 2020, Plaintiff’ s counsel and Defendant’s counsel met and conferred regarding Defendant’s demurrer and motion to strike. Hickox Decl., 1] 10. III. THE COURT SHOULD OVERRULE THE DEMURRER AND DENY THE MOTION TO STRIKE A. Standard for Demurrer and Motion to Strike In evaluating a demurrer, the court must accept all material allegations in the Complaint as true. Comm. 0n Children ’s Television, Inc. v. Gen. Foods Corp. (I983) 35 Cal.3d I97, 213- 14 (superseded by statute on other grounds); Tameny v. Atlantic Richfield C0. (1980) 27 Cal.3d 167, 170. Moreover, the court also accepts as true any facts essential t0 a cause of action that can be inferred from the alleged facts. Harvey v. City ofHoltville (1969) 271 Ca1.App.2d 816, 8 1 9. In addition, the court must liberally construe the pleadings, reasonably interpreting the Complaint and reading the allegations in context. C.C.P. § 452; Schifando v. City ofLos Angeles (2003) 31 Cal.4th 1074, 1081. A demurrer does not test the sufficiency of the evidence by which Plaintiff must prove his claims. Comm. 0n Children ’s Television, Ina, supra, 35 Cal.3d at 214. A demurrer does not even test the possibility 0fWhether Plaintiff may prove his claims. Id.; see Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1267-68. A demurrer only tests whether the pleadings are sufficient t0 put the defendant 0n notice of Plaintiff” s claims. Comm. 0n Children ’s Television, Ina, supra, 35 Cal.3d at 212; Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-57. Further, a complaint Will be upheld if it provides the defendant with “notice of issues sufficient t0 enable preparation of a defense.” Doe v. City ofLos Angeles (2007) 42 Cal.4th 531, 549-550. B. The Complaint States Facts Sufficient to Constitute a Cause of Action for Retaliation in Violation 0f Cal. Lab. Code 81102.5 and Wrongful Termination in Violation 0f Public Policv Plaintiff s retaliation causes of action rely 0n Cal. Lab. Code §1 102.5(b), Which states: An employer, or any person acting 0n behalf of the employer, shall not retaliate against an employee for disclosing information. . .to a government 0r law enforcement agency, t0 a person with authority over the employee or another employee Who has the authority t0 5 OPPOSITION TO DEMURRER AND MOTION TO STRIKE \OOONONU‘I-PUJNH NNNNNNNNNt-tr-th-tr-th-tt-tr-tt-tr-th-t OOQONU‘I-PUJNP-‘OKOOOQONU‘I-PUJNF-‘O investigate, discover, or correct the Violation 0r noncompliance. . .if the employee has reasonable cause t0 believe that the information discloses a Violation 0f state 0r federal statute, 0r a Violation of or noncompliance With a local, state, 0r federal rule 0r regulation. . ..” Cal. Lab. Code §1 102.5(b). T0 state a cause 0f action under Cal. Lab. Code §1102.5, Plaintiff must first allege facts sufficient t0 show that Defendant retaliated against him. To demonstrate retaliation, Plaintiff must allege facts showing that: (1) he engaged in protected activity; (2) he was subjected to adverse employment action; and (3) the protected activity and adverse employment action are causally linked. Mokler v. County 0fOrange (2007) 157 Ca1.App.4th 121, 138. An employee engages in protected activity When they disclose what they reasonably believe to be a Violation of law to their employer 0r a government agency. Cal. Lab. Code § 1102.5(a), (b), (e); see Green v. Ralee Engineering C0. (1998) 19 Cal.4th 66, 87 (citing Collier, v. Superior Court (1991) 228 Ca1.App.3d 1117, 1125. Here, Plaintiff engaged in protected activity When he alerted persons With authority over him, his Warehouse Supervisor and the Quality Inspection Supervisor, about fumes he observed in the warehouse, Which he believed t0 be dangerous to employee health. Complaint, EX. 3, 1] 8. Plaintiff explained that the hot melt machine in the warehouse was creating dangerous fumes that were not being properly ventilated, Which amounted t0 Violations of Cal. Code 0f Regulations 5 155, 5 143, and 5 141. Complaint, EX. 3, fl 8, 17. When Plaintiff s superiors failed t0 sufficiently address 0r fix the perceived Violations, Plaintiff filed a complaint with the Department of Occupational Health and Safety (“DOSH”), wherein he reported Transpak’s Violations of the CCR. Complaint, EX. 3, 1] 9. Plaintiffwas subjected t0 an adverse employment action When he was terminated 0n November 8, 2019. Complaint, EX. 3, 1] 13. Plaintiff” s termination and his protected activity are linked. Plaintiff s supervisor, Rene Corona, made a snide comment directed at Plaintiff, that “someone” had reported Violations Within Transpak t0 DOSH. Complaint, EX. 3, 1] 11. Mr. Corona made this comment while looking directly at Plaintiff. Id. Further, just three days after the conclusion 0f the investigation With DOSH, Plaintiff was terminated for a false and pretextual reason: his alleged involvement 6 OPPOSITION TO DEMURRER AND MOTION TO STRIKE \OOONONU‘I-PUJNH NNNNNNNNNt-tr-th-tr-th-tt-tr-tt-tr-th-t OOQONU‘I-PUJNP-‘OKOOOQONU‘I-PUJNF-‘O in an altercation With another employee. Complaint, EX. 3, 1] 13. Defendant did not terminate the other employee for engaging in the very same actions as Plaintiff, and that employee did not engage in the same protected activity as Plaintiff. Id. Plaintiff can thus reasonably conclude that Transpak’s provided reason for his termination is false and pretext for Transpak’s true reason for terminating Plaintiff: retaliation for Plaintiff” s complaints t0 Transpak and DOSH regarding Transpak’s illegal activity in Violation 0f the CCR. Id. Transpak’s demurrer is based 0n its contention that Plaintiff only alleged purported Violations that were already known to third parties, namely the existence 0f “open and notorious” hot melt fumes. Defendant’s Memorandum of Points and Authorities ISO Defendant’s Demurrer and Motion t0 Strike, Page 6, Line 19. As an initial matter, Whether the hot melt produced Visible fumes, and Whether the hot melt produced Visible fumes that violated the Cal. Code 0f Regulations, as Plaintiff suspected, are entirely separate issues. Further, Defendant completely ignores that Plaintiff also made a complaint t0 a government agency, DOSH, in addition to his supervisors. Presumably, DOSH did not know the fumes posed a danger to employees and others prior t0 Plaintiff s complaint. Defendant’s contention that the Violations 0fWhich Plaintiff complained was known t0 third parties (namely, other employees and managers at Transpak) does not address Plaintiff” s complaint t0 DOSH. Further, t0 the extent knowledge 0f third parties is a factor at all, it is inappropriate t0 weigh and decide that issue at the pleading stage. As such, Plaintiff has sufficiently pled facts sufficient t0 state cause 0f action for retaliation in Violation 0f Cal. Lab. Code § 1102.5(b). Because Plaintiff’ s Wrongful Termination in Violation of Public Policy claims is based on Defendant’s Violation 0f Lab. Code § 1102.5, Plaintiff has sufficiently pled his second cause 0f action as well. C. Plaintiff has Pled a Viable Claim for Economic, Non-Economic and Punitive Damages for an Alleged Violation 0f Cal. Lab. Code 8 1102.5 Defendant confusingly states that Plaintiff’ s claim for economic, non-economic, and punitive damages because “Plaintiff admits TransPak terminated his employment because 0f his involvement in an altercation with a co-worker.” Defendant’s Memorandum 0f Points and 7 OPPOSITION TO DEMURRER AND MOTION TO STRIKE \OOONONU‘I-PUJNH NNNNNNNNNt-tr-th-tr-th-tt-tr-tt-tr-th-t OOQONU‘I-PUJNP-‘OKOOOQONU‘I-PUJNF-‘O Authorities ISO Defendant’s Demurrer and Motion t0 Strike, Page 7, Lines 6 - 7. Defendant cites to Paragraph 13 of the Complaint, which states in full: Three days later, 0n November 18, 2019, Plaintiffwas terminated for a false pretextual reason. Transpak allegedly terminated Plaintiff because of his involvement in an altercation. However, the other employee that instigated the altercation was not terminated. On information and belief, a substantial motivating reason for Transpak’s decision t0 terminate Plaintiff was because 0f Plaintiff’s reporting 0f unsafe working conditions t0 DOSH, which was made in good faith t0 report what he reasonably believed to be illegal.” (emphasis added). Any reading 0f the contents 0f the Complaint, and the specific paragraph to Which Defendant cites will show that Plaintiff made n0 such admission. Instead, Plaintiff includes Defendant’s “alleged[]” reason for termination and states that it is false and pretextual-i.e., not the real reason for termination and certainly not an “admission” that Defendant’s stated reason is the actual reason. Further, the fact that another employee that engaged in the very same behavior as Plaintiffwas not fired, as Plaintiff alleges in his Complaint, is evidence 0f pretext, and shows that the same decision would not have been made absent Plaintiff s protected activity. McDonnell Douglas Corp. v. Green (1973) 411 US 792, 804 (“Especially relevant” t0 a showing 0f pretext “would be evidence that white employees involved in acts against” the employer “of comparable seriousness. . .Were nevertheless retained 0r rehired.”). Since Plaintiff alleges that a coworker engaged in the same behavior and same altercation as Plaintiff, and was not fired, and that that coworker did not engage in the same protected activity as Plaintiff, Plaintiff has pled facts sufficient t0 state causes 0f action for retaliation in Violation 0f Cal. Lab. Code § 1102.5 and wrongful termination in Violation of public policy. D. Plaintiff has Pled a Viable Claim for His Third and Fourth Causes 0f Action for Violations 0f Cal. Lab. Code 88 1198.5 and 226 Defendant contends that Plaintiff’ s third and fourth causes of action fail to allege facts sufficient to establish the claim that Defendant failed to provide a personnel file and wage statements pursuant to Cal. Lab. Code §§ 1198.5 and 226. Defendant explains this is because 8 OPPOSITION TO DEMURRER AND MOTION TO STRIKE \OOONONU‘I-PUJNH NNNNNNNNNt-tr-th-tr-th-tt-tr-tt-tr-th-t OOQONU‘I-PUJNP-‘OKOOOQONU‘I-PUJNF-‘O Plaintiff has not alleged he has ever made a demand for wage statements or personnel records pursuant to Cal. Lab. Code §§ 1198.5 0r 226. Defendant’s Memorandum of Points and Authorities ISO Defendant’s Demurrer and Motion t0 Strike, Page 9, Lines 16, 27. Plaintiff specifically alleged that “Defendants did not provide Plaintiff with a copy of his personnel file Within 30 days 0f a written request for the same” and that “Defendants did not provide Plaintiff With a copy of his wage statements Within 21 days from the date 0f Plaintiff’ s written request.” Complaint, EX. 3, 1] 33, 38. These are statements of fact, not impermissible legal conclusions. Importantly, the distinction between “ultimate facts” and “evidentiary” matters is 0f diminishing importance because a complaint will be upheld if it provides the defendant with “notice of the issues sufficient t0 enable preparation of a defense. Doe v. City ofLos Angeles (2007) 42 Cal.4th 53 1, 549-550. Not only has Plaintiff done just this in his Complaint, Defendant’s counsel sent Plaintiff” s counsel a letter on February 12, 2020, acknowledging Plaintiff s November 18, 2019 demand for personnel and wage records, and specifically stated “please find documents responsive to your written request ofNovember 18, 2019 for personnel and payroll records pursuant t0 Cal. Lab. Code §§ 226, 432, and 1198.5.” Hickox Decl., 1] 5, EX. 2. As such, Defendant is fully aware 0f when Plaintiffmade his request for records, and the date Defendant responded to said request. And, Plaintiff has adequately pled facts sufficient to put Defendant 0n notice of his Cal. Lab. Code Violation claims. Defendant’s purported issues With Plaintiff” s allegations as pled appear to be an attempt to unnecessarily drum up costs for both Defendant and Plaintiff- not an attempt t0 remedy perceived issues Within Plaintiff” s Complaint. IV. ALTERNATIVELY, THE COURT SHOULD GRANT PLAINITFF LEAVE TO AMEND HIS COMPLAINT In the unlikely event the Court rules in Defendant’s favor, Plaintiff requests leave t0 amend his Complaint to add additional facts. Specifically, Plaintiff will include allegations regarding: 0 Defendant’s knowledge 0f Plaintiff s complaint t0 the Department of Occupational Safety and Health. 9 OPPOSITION TO DEMURRER AND MOTION TO STRIKE KOOOQQU‘I-PUJNr-t NNNNNNNNNr-‘Hb-‘r-tr-tr-tr-tr-Ar-tr-t OOQQU‘I-PUJNF-‘OKOOOQQU‘I-PUJNF-‘O o The precise dates Plaintiff sent his demand for personnel file and wage statements, and the date Defendant provided a response. Leaves t0 amend should be liberally granted. Weil & Brown, et a1., Cal. Prac. Guide CiV. Pro. Before Trial (The Rutter Group), CH. 7(I)-A, 11 7: 129 (“Liberality in permitting amendment is the rule.”). V. CONCLUSION Plaintiff has properly plead all his causes 0f action and economic, non-economic, and punitive damages claims. Thus, this Court should overrule Transpak’s demurrer and deny its motion to strike. Dated: July 22, 2016 STALWART LAW GROUP Bydgflw JI-IN LEE HOUCK CINDY HICKOX Attorneys for PlaintiffMANUEL FUENTES 10 OPPOSITION TO DEMURRER AND MOTION TO STRIKE \OOONONU‘I-PUJNH NNNNNNNNNt-tr-th-tr-th-tt-tr-tt-tr-th-t OOQONU‘I-PUJNP-‘OKOOOQONU‘I-PUJNF-‘O DECLARATION OF CINDY HICKOX 1. I am an attorney duly licensed to practice law before all Courts of the State of California, and an attorney with Stalwart Law Group, attorney 0f record for Plaintiff Manuel Fuentes (“Plaintiff”) in this matter. Ihave personal knowledge of the matters stated herein, except Where stated 0n information and belief, and if called as a Witness, I could and would competently testify thereto. 2. I offer this declaration in support of the Plaintiff’ s Opposition to Defendant Transpak, Inc.’s (“Transpak” or “Defendant”) Demurrer and Motion t0 Strike (“Motion”). 3. On 0r about November 18, 2019, my office sent a letter to Transpak’s agent for service of process, Arlene Gale Inch, requesting a copy of Plaintiff’ s employment records pursuant to Cal. Lab. Code §§ 1198.5, 432, and 226(b). Attached as Exhibit 1 is a true and correct copy of Plaintiff” s request for his personnel file and wage statements. 4. On or about January 6, 2020, I received correspondence from Defendant’s counsel requesting Plaintiff s authorization. On the same day, Iprovided Defendant With Plaintiff s authorization for the release of personnel file and wage records. On January 8, 2020, Defendant requested a wet signature, stating he could not accept a “docu-signed” authorization. On January 10, 2020, Plaintiff provided a wet signature authorization for the release of personnel file and wage records. 5. On 0r about February 12, 2020, Ireceived a letter from Defendant’s counsel, Which stated, among other things, “Enclosed please find documents responsive t0 your written request 0fNovember 18, 2019, for personnel and payroll records pursuant t0 Cal. Lab. Code §§ 226, 432, and 1198.5.” Attached as Exhibit 2 is a true and correct copy 0f Defendant’s February 12, 2020 letter t0 Plaintiff. The enclosure provided by Defendant did not contain a complete production of all of Plaintiff s personnel records and wage statements. 6. On or about May 11, 2020, Plaintiff filed a Complaint in this matter. Attached as Exhibit 3 is a true and correct copy 0f Plaintiff s operative Complaint. DECLARATION OF CINDY HICKOX \OOONONU‘I-PUJNH NNNNNNNNNt-tr-th-tr-th-tt-tr-tt-tr-th-t OOQONU‘I-PUJNP-‘OKOOOQONU‘I-PUJNF-‘O 7. June 16, 2020, Defendant sent Plaintiff a meet and confer letter regarding purported deficiencies in Plaintiff” s Complaint. Attached as Exhibit 4 is a true and correct copy 0f Defendant’s June 16, 2020 letter to Plaintiff. 8. On June 18, 2020, Plaintiff sent Defendant a meet and confer letter in response t0 Defendant’s June 16, 2020 letter. Attached as Exhibit 5 is a true and correct copy of Plaintiff’ s June 18, 2020 letter t0 Defendant. 9. On July 14, 2020, Defendant sent Plaintiff a meet and confer letter in response to Defendant’s June 18, 2020 letter. Attached as Exhibit 6 is a true and correct copy 0f Defendant’s July 14, 2020 letter to Plaintiff. 10. On July 15, 2020, I met and conferred With Defendant’s counsel Anne Jordan regarding Defendant’s July 14, 2020 letter. Ms. Jordan asked Whether I would be Willing t0 amend any of Plaintiff” s complaint. Itold Ms. Jordan I did not understand what else needed to be amended. Ms. Jordan directed me t0 the third and fourth causes 0f action which she said did not contain dates the requests for personnel file 0r wage statements were sent. I said I believed the complaint was sufficiently pled without stating the specific dates 0f the request, and that regardless, Defendant had responded to Plaintiff’ s request for personnel file and wage statements (albeit incompletely). I reminded Ms. Jordan that a complaint would be upheld if it provided Defendant With notice of the issues sufficient for the Defendant to prepare a defense. I also stated that Defendant did not address the fact that Plaintiff, in addition to complaining to his supervisors, complained to the Department of Occupational Health and Safety, and all around, did not address much ofmy June 18, 2020 letter. I reiterated that Plaintiff would be Willing to amend the complaint, but that Defendant has failed t0 point out any defects t0 amend. Ms. Jordan stated that we could just “agree t0 disagree” and our call concluded shortly thereafter. I declare under penalty 0f perjury under the laws of the State of California that the foregoing is true and correct. DECLARATION OF CINDY HICKOX KOOOQONUI-PUJNH NNNNNNNNNHwab-Iwwwwb-I OONONM-PWNHOKOOONONM#UJNHO Executed 0n September 9, 2020 at Los Angeles, California. Cindy Hickox DECLARATION OF CINDY HICKOX STALWART LAW GROUP \OOONONU‘I-PUJNy-t NNNNNNNNNt-tt-tr-th-th-tt-tt-tr-th-th-t OONQU‘I-PUJNF-‘OKOOONQU‘I-PUJNF-‘O PROOF OF SERVICE F.R.C.P. 5 / C.C.P. § 1013a(3)/ Cal. R. Ct. R. 2.260 I am a resident 0f, or employed in, the County 0f Los Angeles. I am over the age 0f 18 and not a party t0 this action. My business address is: Stalwart Law Group, 1100 Glendon Ava, Suite 1840, Los Angeles, California 90024. On September 9, 2020, I served the following listed document(s), by method indicated below, on the parties in this action: 1. PLAINTIFF’S COMBINED OPPOSITION TO DEFENDANT’S DEMURRER AND MOTION TO STRIKE SEEATTACHED SERVICE LIST g BY EMAIL By electronically transmitting the document(s) listed above to the email address(es) of the person(s) set forth on the attached service list from the email address josh@stalwartlaw.com. T0 my knowledge, the transmission was reported as complete and without error. Service by email was made E pursuant t0 Cal. R. Ct. § 2.251(c)(3) , 0r D pursuant t0 agreement 0f the parties, confirmed in writing, or D as an additional method of service as a courtesy t0 the parties, 0r D pursuant to Court Order. I declare under penalty 0f perjury under the laws 0f the State 0f California and the United States of America that the above is true and correct. Executed on September 9, 2020 at Los Angeles, California. Josh Montoya W W/ Type or Print Name v Signature I SERVICE LIST Anne Sweeney Jordan Attorneys for Defendants TRANSPAK, Benjamin Emmett INC. LITTLER MENDELSON, PC 50 West San Fernando Street, FL 7 San Jose, CA 951 13 T: 408.961.7121 M: 408.3 14.1402 F: 408.904.7271 E: ajordan@littler.com E: bemmert@littler.com PROOF OF SERVICE EXH|B|T1 STALWART LAW GROUP 1100 GLENDON AVE., SUITE 1840, LOS ANGELES, CALIFORNIA 90024 I P: (310) 954-2000 IF: (310) 943-0303 CINDY@STALWARTLAW.COM November 18, 2019 VIA U.S. MAIL Arlene Gale Inch Agent for Service 0f Process Transpak, Inc. 170 Pacific Avenue, #11 San Francisco, CA 941 11 RE: EMPLOYEEMANUEL “MANNY”PUENTES DEMAND FOR COPIES OF PERSONNEL AND PAYROLL RECORDS PURSUANT TO CALIFORNIA LABOR CODE SECTIONS 226(b), 432, AND 1198.5 Dear Ms. Inch, This law firm represents Manuel “Manny” Fuentes, a former employee 0f Transpak, Inc. (hereafter, the “Company”) in regard to his legal claims against the Company and such other entities and individuals as may be determined through further investigation. Consistent With California Labor Code sections 226(b), 432, and 1198.5, I am hereby requesting as Mr. Puentes’ representative that this office be provided With copies 0f all personnel, payroll, benefits, and other records relating t0 their employment with the Company. Paystubs should be provided n0 later than twenty-one (2 1) days from the date 0f this letter (Cal. Lab. Code § 226). A11 other documents should be provided n0 later than thirty (30) days from the date 0f receipt 0f this letter (Cal Lab. Code § 1198.5), including but not limited t0 the following: 0 Personnel file o Employment Handbooks/Personnel Policy Manual o Any instrument 0r document signed by our Client relating t0 the obtaining or holding of employment o Paycheck stubs o Compensation and wage records o Records relating to attendance, hours worked, meal periods, and rest periods (including in/out punch records) o Records relating to his performance and job duties/description o Work schedules o Medical and medical insurance files We request that in lieu 0f paper records you produce the records in electronic form, in PDF format, sent Via email t0 cindy@sta1wartlaw.com. Please note, the record production will only comply with the Labor Code if the scans are legible. If necessary and if required by law, we will pay for the reasonable copying and mailing costs for any such records (not to exceed $50 without pfior notice), and hereby offer t0 tender such payment. If physical copies are produced, the records should be mailed to my attention with proof 0f delivery retained. Please be advised that our firm has a lien on any further payments to Mr. Puentes from the Company. Any attempt to make a payment to Mr. Fuentes circumventing this lien will be met with immediate legal action.1 This letter also serves as formal notice to the Company that it is not to destroy, conceal, or alter in any manner whatsoever any 0r all evidence, documents, information, paper or electronic data and/or other tangible items pertaining or relevant t0 0r discoverable in an anticipated lawsuit brought by Mr. Fuentes regarding his employment at the Company. This notice includes, but is not limited to, all data generated and/or stored 0n any and all computers; all data stored on any and all other electronic storage media (i.e., flash drives, CD-ROMS, DVDs, backup tapes, online backup services 0r other storage media or service); all emails; all instant messages; all SMS text messages; all audio data such as voicemail, recordings; and all photographs, Videos, and writings. You have an affirmative obligation to suspend any routine document destruction (i.e., if any 0f the company’s 0r employee’s emails are set t0 purge every 30 days, you must prevent that from happening). T0 be clear, this obligation includes the Company ensuring that its employees and owners also preserve their emails, text messages, and all other communication With and about Mr. Fuentes and photographs on their devices, both work and personal. Ifyou are represented by counsel in this matter, please forward this letter t0 your attorneys and ask that they inform me to communicate with them instead. Thank you very much, in advance, for your compliance with this demand. I may be reached at 3 10- 954-2000 if there are any questions regarding this matter. Very truly yours, WW Cindy Hickox, Esq. 1 See Little v. Amber Hotel C0. (201 1) 202 Ca1.App.4th 280 (liability 0f opposing counsel and opposing party for tortious interference in a lien-bypass settlement). 1100 GLENDON AVENUE, SUITE 1840 LOS ANGELES, CALIFORNIA 90024 (310) 954-2000 I STALWARTLAW.COM EXHIBIT 2 Littler Employment & Labor Law Solutions Worldwidem February 12, 2020 VIA EMAIL [CINDY@STALWARTLAW.COM] Cindy Hickox Stalwart Law 1100 Glendon Avenue, Suite 1840 Los Angeles, CA 90024 Re: Manuel Puentes / Transpak, Inc. Dear Ms. Hickox: Littler Mendelson, P.C. 5O W. San Fernando, 7th Floor San Jose, CA 951 13.2303 Hector J. Rodriguez 408.795.3456 direct 408.998.4150 main 408.904.4508 fax hjrodriguez@littler.com This firm represents Mr. Puentes’ former employer, TransPak, Inc. ("TransPak") with respect to the unspecified workplace related claims alleged in your November 18, 2019 letter. As such, please direct all further communications to me and Anne Jordan of this office. Enclosed please find documents responsive t0 your written request of November 18, 2019, for personnel and payroll records pursuant to California Labor Code sections 226, 432 and 1198.5. The documents are marked as TRANSPAK00001-00065 for internal tracking purposes. If you have any questions and/or would like to discuss this matter, please do not hesitate to contact me. Sincerely, Hector J. Rodriguez HJR Enclosures Firmwide:149053603.1 044571.1000 EXHIBIT 3 STALWART LAW GROUP \OOONQU‘I-bUJNr-t NNNNNNNNNr-tr-th-tr-th-tr-tr-tr-tr-Ib-t OONQU‘I-RUJNF-‘OKOOONQU‘I-RWNF-‘O Ji-In Lee Houck (SBN 280088) jiin@stalwartlaw.com David Angeloff (SBN 272929) david@stalwartlaw.com Cindy Hickox (SBN 323016) cindy@stalwartlaw.com STALWART LAW GROUP 1100 Glendon Ava, Suite 1840 Los Angeles, CA 90024 Telephone: (310) 954-2000 Attorneys for PlaintiffMANUEL PUENTES E-FILED 5/1 1/2020 2:36 PM Clerk of Court Superior Court of CA, County of Santa Clara ZOCV366569 Reviewed By: Y. Chavez SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA MANUEL PUENTES, an individual, Plaintiff, VS. TRANSPAK, INC., a California corporation; and DOES 1 through 10, inclusive, Defendants. Case NCO: ZOCV366569 COMPLAINT FOR: (1) RETALIATION IN VIOLATION OF CAL. LAB. CODE § 1102.5; (2) WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY; (3) FAILURE T0 PROVIDE PERSONNEL FILE 1N VIOLATION 0F LABOR CODE § 1198.5; AND, (4) FAILURE T PROVIDE COMPLETE WAGE STATEMENTS IN VIOLATION 0F LABOR CODE § 226(a) DEMAND FOR JURY TRIAL 1 COMPLAINT STALWART LAW GROUP \OOONQU‘I-bUJNr-t NNNNNNNNNr-tr-th-tr-th-tr-tr-tr-tr-Ib-t OONQU‘I-RUJNF-‘OKOOONQU‘I-RWNF-‘O PlaintiffMANUEL PUENTES (hereinafter referred to as “Plaintiff” or “Puentes”) alleges as follows for his Complaint: THE PARTIES 1. Plaintiff is an individual, Who at all relevant times was and is a resident 0f the City of San Jose, County 0f Santa Clara. 2. Plaintiff is informed and believes that Defendant Transpak, Inc. (“Transpak” 0r “Defendant”) is and at all relevant times was a California corporation, with its principal place of business at 520 North Marburg Way, San Jose, CA 95 133, in the County of Santa Clara. 3. The true names and capacities, whether individual, corporate, partnership, associate, 0r otherwise, of the Defendants sued herein as DOES 1 through 10, inclusive, are currently unknown to Plaintiff, who therefore sues said Defendants by such fictitious names. Plaintiff is informed and believes, and based thereon alleges, that each 0f the Defendants designated herein as a DOE is legally responsible in some manner for the events and happenings referred to herein and caused injury and damage proximately thereby to Plaintiff as hereinafter alleged. Plaintiff will seek to amend this Complaint t0 show the true names and capacities of the Defendants designated herein as DOES When the same have been ascertained. Whenever in this Complaint reference is made t0 “Defendants,” such allegation shall be deemed t0 mean the acts 0f Defendants acting individually, jointly, and/or severally. 4. Plaintiff is informed and believes, and thereby alleges, that each of the Defendants herein was at all times the agent and/or employee 0f each 0f the remaining Defendants, and was at all times mentioned, acting Within the course and scope 0f said agency and/or employment, and each Defendant was acting with the full knowledge and consent of his superior or principal, and each such principal 0r superior at all times ratified and acquiesced in each and every act 0f each Defendant and agent thereof, and as such each Defendant bound the other by his act and deed. Further, each 0f the Defendants aided, abetted, incited, compelled, and/or coerced one another, and/or conspired With one another, t0 do the acts alleged herein. 5. Transpak and DOES 1 through 10, collectively shall be referred t0 herein as “Defendants.” 2 COMPLAINT STALWART LAW GROUP \OOONQU‘I-bUJNr-t NNNNNNNNNr-tr-th-tr-th-tr-tr-tr-tr-Ib-t OONQU‘I-RUJNF-‘OKOOONQU‘I-RWNF-‘O VENUE 6. Venue is proper in the Superior Court 0f Santa Clara because the County 0f Santa Clara, State 0f California, is Where the conduct, acts, inaction, statements, 0r omissions complained of in this Complaint took place. On information and belief, Transpak’s principal place 0f business is also located in the County of Santa Clara, State 0f California. GENERAL ALLEGATIONS 7. Since July 3, 2017, Plaintiff worked at Transpak as a Production Planner. Throughout his approximately two-and-a-half-year tenure at Transpak, Plaintiff competently performed his job duties and earned several progressive and merit-based promotions. 8. On 0r about October 4, 2019, Plaintiff complained t0 his Warehouse Supervisor and the Quality Inspection Supervisor about fumes he observed in the warehouse. Plaintiff explained that the hot melt machine in the warehouse was creating dangerous fumes that were not being properly ventilated. The fumes were so bad, Plaintiff was not only able to smell the fumes, he could see the fumes. Plaintiff asked his supervisors how it could be fixed. Instead 0f meaningfully considering options to address Plaintiff’s concerns, his supervisors suggested he just open the door. 9. Plaintiff was certain his supervisors’ “solution” was insufficient. Transpak needed serious ventilation systems in place t0 address the fumes the machines were emitting. The warehouse’s improper ventilation was a health hazard to him and other warehouse workers. On or about the same day, Plaintiff filed a complaint with the Division 0f Occupational Safety and Health (“DOSH”). 10. A few days later, Plaintiff received a response from DOSH, indicating that DOSH had notified Transpak 0f his complaint Which alleged “[p]0tentia1 concerns associated With failure t0 conduct monitoring for vapors from the glue burning operations in the warehouse, and provide proper ventilation.” 11. In the weeks following Plaintiff s reporting t0 DOSH, Rene Corona, Transpak’s Chief Operating Officer and Plaintiff’s primary supervisor, called a team meeting. When Mr. Corona announced the meeting, he specifically stated, “We have to have a meeting because 3 COMPLAINT STALWART LAW GROUP \OOONQU‘I-bUJNr-t NNNNNNNNNr-tr-th-tr-th-tr-tr-tr-tr-Ib-t OONQU‘I-RUJNF-‘OKOOONQU‘I-RWNF-‘O someone must have reported t0 OSHA.” Mr. Corona directed his comment towards Plaintiff by looking directly at him and emphasizing in a snide manner that someone had reported Violations Within Transpak. 12. On November 5, 2019, DOSH advised Plaintiff that their investigation was complete and that he could further reach out if the issue persisted. 13. Three days later, 0n November 8, 2019, Plaintiffwas terminated for a false, pretextual reason. Transpak allegedly terminated Plaintiff because 0f his involvement in an altercation. However, the other employee that instigated the altercation was not terminated. On information and belief, a substantial motivating reason for Transpak’s decision t0 terminate Plaintiff was because of Plaintiff’ s reporting of unsafe working conditions t0 DOSH, which was made in good faith t0 report What he reasonably believed t0 be illegal. FIRST CAUSE OF ACTION Retaliation in Violation 0f Cal. Labor Code § 1102.5 (Against A11 Defendants) 14. Plaintiff incorporates herein by reference, as though fully set forth herein, each and every allegation contained in paragraphs 1 through 13, inclusive of this Complaint. 15. California Labor Code § 1102.5(a), in pertinent part, provides: “An employer, or any person acting 0n behalf 0f the employer, shall not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government 0r law enforcement agency, to a person with authority over the employee, or t0 another employee who has authority t0 investigate, discover, 0r correct the Violation 0r noncompliance, 0r from providing information to, or testifying before, any public body conducing an investigation, hearing or inquiry, if the employee has reasonable cause t0 believe that the information discloses a Violation of state 0r federal statute, 0r a Violation 0f 0r noncompliance with a local, state, 0r federal rule 0r regulation, regardless of whether disclosing the information is part of the employee’s job duties.” 16. Labor Code § 1102.5 subsection (b) provides that: “An employer, or any person acting on behalf 0f the employer, shall not retaliate against an employee for disclosing 4 COMPLAINT STALWART LAW GROUP \OOONQU‘I-bUJNr-t NNNNNNNNNr-tr-th-tr-th-tr-tr-tr-tr-Ib-t OONQU‘I-RUJNF-‘OKOOONQU‘I-RWNF-‘O information, or because the employer believes that the employee disclosed 0r may disclose information, t0 a government 0r law enforcement agency, to a person with authority over the employee or another employee Who has the authority t0 investigate, discover, or correct the Violation or noncompliance, 0r for providing information t0, 0r testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a Violation 0f state or federal statute, 0r a Violation of or noncompliance with a local, state, 0r federal rule or regulation, regardless of whether disclosing the information is part 0f the employee’s job duties.” 17. As set forth above, Plaintiff reasonably believed that Transpak violated numerous sections 0f the California Code 0f Regulations (“CCR”), as enforced by DOSH, including: CCR section 5155, which establishes requirements for controlling employee exposure t0 airborne contaminants and skin contact With those substances which are readily absorbed through skin; CCR section 5 143, Which establishes requirements regarding the construction, installation, inspection, testing, and maintenance of exhaust systems in the workplace; and CCR section 5 141, which establishes requirements to control harmful exposure t0 employees by way 0f engineering controls, administrative controls, or control by respiratory protective equipment. 18. As set forth herein, Defendants violated California Labor Code section 1102.5 because Plaintiff opposed and reported the wrongful acts of Transpak, and in turn, Defendants terminated Plaintiff in retaliation for speaking out against Transpak’s Violations 0f the CCR. 19. At all relevant times, Plaintiff was an employee of Defendants, and Defendants were Plaintiff’ s employer. 20. Defendants believed that Plaintiff had disclosed t0 a government agency or person With authority over Plaintiff (Plaintiff s supervisors), that Defendants were in Violation 0f the CCR, as enforced by DOSH. Plaintiff had reasonable cause to believe that the information disclosed a Violation of state 0r federal statute. Defendants terminated Plaintiff. Plaintiff’s disclosure 0f information t0 DOSH, or complaints t0 his supervisors were, each of them, a contributing factor in Defendants’ decision t0 terminate Plaintiff. Plaintiff was harmed. Defendants’ conduct was a substantial factor in causing Plaintiff s harm. 5 COMPLAINT STALWART LAW GROUP \OOONQU‘I-bUJNr-t NNNNNNNNNr-tr-th-tr-th-tr-tr-tr-tr-Ib-t OONQU‘I-RUJNF-‘OKOOONQU‘I-RWNF-‘O 21. As a direct and proximate result 0f Defendants’ conduct, Plaintiff has suffered and will continue t0 suffer damages, including, but not limited to, lost past and future wages and benefits and emotional distress, all in an amount t0 be determined at trial and in excess 0f the jurisdictional minimum 0f this court. 22. Plaintiff is informed and believes, and thereon alleges, that Defendants, by engaging in the aforementioned acts and/or in authorizing and/or ratifying such acts, engaged in willful, malicious, fraudulent, intentional, oppressive, and despicable conduct, and acted with willful and conscious disregard 0f the rights, welfare and safety of Plaintiff. Plaintiff should, therefore, be awarded exemplary and punitive damages against Defendants, and each 0f them, in an amount to be established that is appropriate t0 punish Defendants and deter others from engaging in such conduct. SECOND CAUSE OF ACTION Wrongful Termination in Violation 0f Public Policy (Against A11 Defendants) 23. Plaintiff incorporates herein by reference, as though fully set forth herein, each and every allegation contained in paragraphs 1 through 22, inclusive of this Complaint. 24. At all relevant times herein, Plaintiff was employed by Defendants and Defendants were Plaintiff’ s employer. 25. Plaintiff was terminated from Defendants 0n November 8, 2019, in retaliation for his complaints regarding Defendants’ illegal conduct. 26. As set forth above, and 0n information and belief, Plaintiff’ s protected activity was a substantial motivating reason for Plaintiff’ s discharge in Violation of Labor Code § 1102.5. Plaintiff was harmed, and Defendants’ conduct was a substantial factor in causing Plaintiff” s harm. 27. It is the public policy of the State 0f California, as expressed in Labor Code § 1102.5, that employees shall not be terminated because of their complaints about Violations of, without limitation, the California Code of Regulations. 6 COMPLAINT STALWART LAW GROUP \OOONQU‘I-bUJNr-t NNNNNNNNNr-tr-th-tr-th-tr-tr-tr-tr-Ib-t OONQU‘I-RUJNF-‘OKOOONQU‘I-RWNF-‘O 28. By the aforesaid acts and omissions 0f Defendants, Plaintiff has been directly and legally caused to suffer actual damages including, but not limited t0, loss 0f earnings, reliance damages, costs of suit and other pecuniary loss in an amount not presently ascertained, but t0 be proven at trial. 29. As a direct and proximate result of Defendants’ willful, knowing, and intentional retaliation, Plaintiff has suffered and will continue to suffer emotional distress and other employment benefits and job opportunities in an amount t0 be determined at trial. 30. Plaintiff is informed and believes, and thereon alleges, that Defendants, by engaging in the aforementioned acts and/or in authorizing and/or ratifying such acts, engaged in willful, malicious, fraudulent, intentional, oppressive and despicable conduct, and acted with willful and conscious disregard 0f the rights, welfare and safety of Plaintiff. Plaintiff should, therefore, be awarded exemplary and punitive damages against Defendants in an amount to be established that is appropriate t0 punish Defendants and deter others from engaging in such conduct. THIRD CAUSE OF ACTION Violation 0f Labor Code § 1198.5 (Against A11 Defendants) 3 1. Plaintiff incorporates herein by reference, as though fully set forth herein, each and every allegation contained in paragraphs 1 through 30, inclusive of this Complaint. 32. California Labor Code § 1198.5 requires an employer t0 allow inspection and copying 0f personnel files records Within 30 days of a written request. The section provides for $750 penalty payable t0 the employee for Violation and allows an employee t0 sue for injunctive relief and obtain an award 0f costs and attorneys” fees. 33. Defendants did not provide Plaintiff with a copy of his personnel file within 30 days 0f a written request for the same. 34. As a proximate result, Plaintiff has suffered injury as articulated under the California Labor Code. 7 COMPLAINT STALWART LAW GROUP \OOONQU‘I-bUJNr-t NNNNNNNNNr-tr-th-tr-th-tr-tr-tr-tr-Ib-t OONQU‘I-RUJNF-‘OKOOONQU‘I-RWNF-‘O 35. Plaintiff seeks an award 0f the statutory penalty, and order/injunction compelling compliance, and reasonable attorneys’ fees and costs. FOURTH CAUSE OF ACTION Violation 0f Labor Code § 226 (Against A11 Defendants) 36. Plaintiff incorporates herein by reference, as though fully set forth herein, each and every allegation contained in paragraphs 1 through 35, inclusive of this Complaint. 37. Labor Code § 226 requires an employer t0 furnish its employees with an accurate itemized statement in writing showing, following a written or oral request t0 inspect 0r receive a copy of records. The employer must comply with the request as soon as practicable, but no later than 21 calendar days from the date of the request. According t0 Labor Code § 226(a), records must be kept 0n file by the employer for at least three years at the place of employment or at a central location Within the State 0f California. 38. Defendants did not provide Plaintiff with a copy 0f his wage statements within 21 calendar days from the date of Plaintiff” s written request. Further, Defendants did not provide a complete production of Plaintiff’ s wage statements. Plaintiffworked at Transpak since 2017, yet he only received wage statements from 2019 onward. 39. On information and belief, in Violation 0f Labor Code § 226(a), Defendant did not maintain Plaintiff’ s records on file for at least three years. 40. As a result of Defendant’s failure t0 maintain and provide complete wages statements for the entirety 0f Plaintiff’ s employment at Transpak, Plaintiff suffered actual damages and harm by being unable t0 determine With precision the actual hours worked, and overtime worked. Thus, Plaintiff was unable t0 assert his statutory protections t0 Defendant’s potential Labor Code Violations at the time the Violations occurred. 41. Defendant has knowingly and intentionally failed t0 comply with Labor Code § 226(a). 8 COMPLAINT STALWART LAW GROUP \OOOQQU‘I-PUJNv-t NNNNNNNNNHHHHh-tr-kr-tr-Ar-th-t OONQU‘I-PWNF-‘OKOOONQU‘I-PWNF-‘O 42. Pursuant to Labor Code § 226(6), Plaintiff is entitled to penalties as follows: (a) Fifty dollars ($50.00) for the initial pay period in which a Violation occurs; and (b) one hundred dollars ($100.00) for each Violation in a subsequent pay period, not t0 exceed $4,000. 43. Pursuant to Labor Code § 226(h), Plaintiff is entitled t0 injunctive relief t0 ensure Defendant’s compliance with Labor Code § 226, and t0 an award of costs and reasonable attorneys” fees. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays judgment be entered in his favor and against Defendants, each 0f them, as follows: 1. 2 3 4. 5 6 7. limited to Cal. 8. Dated: May 11, 2020 For general and special damages in an amount according to proof; For compensatory damages in an amount according t0 proof; For punitive damages in an amount according to proof; For reasonable costs of suit incurred; For injunctive relief pursuant to Cal. Labor Code sections 1198.5(1) and 226(h); For pre-judgment interest and post-judgment interest 0n all damages awarded For reasonable attorney’s fees and costs pursuant to statute, including but not Labor Code sections 1198.5 and 226, according t0 proof; and For such other and further relief as the Court may deem just and proper. STALWART LAW GROUP U E By: JI-IN LEE HOUCK DAVID ANGELOFF CINDY HICKOX Attorney for PlaintiffMANUEL PUENTES 9 COMPLAINT STALWART LAW GROUP \OOOQQU‘I-PUJNv-t NNNNNNNNNHHHHh-tr-kr-tr-Ar-th-t OONQU‘I-PWNF-‘OKOOONQU‘I-PWNF-‘O PlaintiffMANUEL PUENTES hereby demands trial by jury 0n all issues so triable in the Complaint. Dated: May 11, 2020 DEMAND FOR JURY TRIAL STALWART LAW GROUP U By: : JI-IN LEE HOUCK DAVID ANGELOFF CINDY HICKOX Attorney for PlaintiffMANUEL PUENTES 10 COMPLAINT EXHIBIT 4 O Lluler Littler Mendelson, P.C.Silicon Valley Office 50 W. San Fernando, 7th Floor San Jose, CA 951 13.2303 BenjaminA. Emmert 408.998.4150 main 408.288.5686 faxJune 16, 2020 bemmert@littler.com VIA EMAIL Ji-In Lee Houck David Angeloff Cindy Hickox Stalwart Law Group 1100 Glendon Ave., Suite 1840 Los Angeles, CA 90024 Re: Manuel Puentesv. TransPak, Inc. Santa Clara County Superior Court Case No. 20CV366569 Dear Counsel, This is written to comply with the meet and confer obligations stated in Code of Civil Procedure sections 430.41 and 435.5. As you know, Littler Mendelson, P.C. has been retained to represent TransPak, Inc. in the above-referenced lawsuit. We have reviewed the Complaint and believe it '5 subject to demurrerand/or motion to strike because it fails to state facts establ'shing any cause of action and seeks damages that Plaintiff is not entitled to as a matterof law. We are writing to see if you will be willing to attem pt to remedy these patent defects voluntarily. If you are not,we will move forward with bringing a demur and motion to strike. The basis of the demur and the motion to strike are detailed below. I. Plaintiff’s Complaint Plaintist Complaint contains four (4) causes of action for: (1) alleged retaliation in violation of Labor Code section 1102.5; (2) wrongful termination in violation of public policy; (3) alleged failure to provide personnelfile in violation of LaborCode section 1198.5; and (4) alleged failure to providepayroll recordsin violation of LaborCode section 226. Plaintiff’s second cause of action forwrongfultermination is based on the public policy articulated in LaborCode section 1102.5. II. Allegations In Plaintiff’s Complaint Plaintiff alleges he worked for TransPak as a production planner from about July 3, 2017, until his employment was terminated on about November8, 2019. (Compl. 11117, 13.) Plaintiff claims that, on about October 4, 2019, he complained to his Supervisor and the Quality Inspection Superv'sor about fumes he allegedly observed in TransPak’s warehouse. (Id. at 8.) Plaintiff further alleges he believed his Supervisor’s proposed solution to the problem was not sufficient. Ji-In Lee Houck David Angeloff Cindy Hickox June 16, 2020 Page 2 (Id. at 1] 9.) Plaintiff therefore filed a complaint with the Division of Occupational Safety and Heatth (“DOSH”). (Id) Plaintiff claims DOSH notified him that it had contacted TransPak regarding his complaint. (Id. at 1110.) Plaintiff also alleges that, following his report,TransPak’s Chief Operating Officer called a meeting thatincluded Plaintiff and his co-workers stating,“[w]e haveto havea meeting because someone must have reported to OSHA." (Id. at 1111.) Plaintiff claims his supervisor’s comments were directed at him because he looked at Plaintiff when the comments were made and emphasized, “in a snide manner that someone had reported violations within TransPak." ([d.) Plaintiff further alleges that DOSH completed its investigation on November 5, 2019. (Comp|., 1112.) Significantly, Plaintiff also admits that, on about November 8, 2019, TransPak terminated his employment because ofhis involvement in an aItercation with a co-worker at work. (Id. at 1113.) Plaintiff admits this attercation occurred. (10C) Plaintiff also admits he was involved in the aitercation and further admits that TransPak’s stated reason for terminating his employment was “because of his involvement in [the] attercation.” (Id) Plaintiff also alleges that he believes, “[o]n information and belief [only], a substantial motivating reason for Transpak’s decision to terminate Plaintiff was because of Plaintiff’s reporting of unsafe working conditions to DOSH.” (Id) Plaintiff seeks both economic, non-economic, and punitive damages under his first and second causes of action. III. Legal Argument A. Plaintiff’s First Cause Of Action For An Alleged Violation Of Labor Code Section 1102.5 Is Subject To Demur And/Or Motion To Strike. 1. Plaintiff’s First Cause Of Action For Alleged Violation Of Labor Code Section 1102.5 Is Subject To Demur. Labor Code section 1102.5 states, in pertinent part, An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government 0r law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance Ji-In Lee Houck David Angeloff Cindy Hickox June 16, 2020 Page 3 with a local, state, or federal rule or regulation, regardless of whether disclosing theinformation is part of the employee’s job duties. To establish a pr/im faC/ie cause of action for an alleged violation of Labor Code section 1102.5, Claimant mustallege facts establishing, among other items, that he disclosed information, orthat the defendant reasonably believed the plaintiff would disclose information, that the plaintiff reasonably believed showed a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. Hager v. County 0fL05Angele5 (2014) 228 Cal.App.4th 1538, 1548. Thus, to effectively plead an alleged violation of Section 1102.5, a plaintiff must first, specifically identify the state, federal, or local statute, rule, or regulation allegedly violated in the Complaint. EdgerA/ v. Cd‘y 0f0akbna’ (2012) 211 Cal.App.4th 1191, 1200; Carter v. Escond/b’o Union H'gh SchoolDlst. (2007) 148 Cal.App.4th 922, 933; Thomas v. Starz Enterta/hment LLC (C.D. Cal. 2016) 2016 WL844799, *4 (citing Carter, 211 Cal.App.4th 1191 and stating “[t]o state a claim for retaliation undersection 1102.5,a‘[p]|aintiff must be able to identify a specific state orfederal statute, rule, or regulation which he believed [d]efendants were violating”); Love v. Motion Industries, Inc. (N.D.Ca|.2004) 309 F.Supp.2d 1128, 1134 (plaintist reports of safety concems abouta construction projectdid not constituteprotected activity under LaborCodesection 1 102.5 where he failed to allege or point to violation of any specific federal or state statute, rule or regulation.) Second,the plaintiff must establish he/she disclosed information, orthat the employer reasonably believed he/she may disclose information, to a “to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct theviolation or noncompliance.” Cal. Labor Code§ 1102.5(b). Finally, the plaintiff must also allege facts establishing the information disclosed, or threatened to be disclosed, was not already known to third parties. M'Ze-Kurzman v. Mar/h Communly Colbge Dist. (2012) 202 Cal.App.4th 832, 858. As the M'ze-Kurzman Court stated, We are persuaded that this was a proper limitation on what constitut$ disclosure protected by California law. Weagree with Huffman, supra, 263 F.3d 1341, 1349-1350, and other federal cases that have held that the reportof information that was already known did not constitutea protected disclosure. (See, e.g., Meuwissen v. Departmentoffnter/or (Fed.Cir.2000) 234 F.3d 9, 12-13 [report of publicly known information that constituted a decision in the course of adjudication was not the kind of disclosure the federal WPA was intended to protect]; Francisco v. Ofi‘ice 0f Personnel Management (Fed.Cir.2002) 295 F.3d 1310, 1314 [report of information already publicly known did not constitute a protected disclosure].) We also read the term “disclosure” consistent with its “ordinarily understood meaning.” (Huffman, at p. 1349.)“[T]he term ‘disclosure’ means to reveal something that was hidden and not known.” (Id. at pp. 1349-1350; see Ji-In Lee Houck David Angeloff Cindy Hickox June 16, 2020 Page 4 Webster's 3d New Internat. Dict. (1968) p. 645.) Both Labor Code section 1102.5 and Education Code section 87162, subdivision (e), use variants of the term “disclose” (i.e., “disclosing” and “discloses” in Lab.Code,§ 1102.5, subd. (b), and “protected disclosure” in Ed.Code,§ 87162, subd. (e)) and there is no reason to believe the terms were being used in anything other than their ordinary sense. Id. at 858-859; see also Id. at 866 (“[t]hat plaintiff views a publicly known policy as unlawful is not a disclosure protected by law”); Hager, 228 Cal.App.4th at 1549 (“we accept the dictionary definition of ‘disclosure’ as used by the court in M'Ze-Kurzman”); Nobsco v. Scnt/bodies Laboratory, Inc. (2019)WL926968 (stating M'Ee-Kurzman “stands forthe principle that reporting information that is publicly known is nota protected disclosure”) In this action, Plaintiff has not alleged any of these necessary facts to even establish a pr/h7a facie cause of action for an alleged violation of Section 1102.5. Plaintiff has not identified any alleged constitutional, statutory, orregulatory basis for his Section 1102.5 claim in his Complaint. Indeed, his Complaint is devoid of any statute that TransPak’s purported conduct allegedly violated. Moreover, given Plaintist alleged report to the DOSH was related to “fumes [from the hot mett machine] that were not being properly ventilated”, such would have been already known to third parties. The fact the hot mett machine produced fumes was open and notorious and is therefore fatal to his first cause of action. 2. Plaintiff's Claim For Economic And Non-Economic Damages ForAn Alleged Violation Of Labor Code Section 1102.5 Is Subject To A Motion To Strike. A motion to strike lies to either, strike any“irre|evant, false or improper matter inserted in any pleading” orto strike any pleading or part thereof“not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” Cal. Code Civ. Proc. § 436. A motion to strike can be used to reach defects in or objectionsto pleadings that are not challengeable by demurrer. Cal. Code Civ. Proc. § 435(a)(2)). A motion to strike can be used to attack the entire pleading, or any part thereof-Ile., even single words or phrases. Bara/ v. Schn/Z‘t(2016) 1 Cal.5th 376, 393-394. For the reasons stated below, Plaintiff’s claims for relief for economic, non-economic, ancl punitive damages must be struckfrom the Complaint. In this action, Plaintiff’s claim for economic, non-economic, and punitive damages (Prayer For Relief 1-3) should be struckfrom the Complaint because Plaintiff admits TransPak terminated his employment because of his involvement in the attercation with his co-worker. (Comp|., 1113.) Specifically, Plaintiff makes the judicial admission that TransPak“terminated Plaintiff because of his involvementin an attercation.” (Id). Given Plaintiff’s admission, he cannotrecovereconom'c, non-economic,orpunitive damages as a matter of law. See Harri; v. City 0f5anta Monica (2013) 56 Cal.4th 203, 233-234; see also Cal. LaborCode§ 1102.6. Ji-In Lee Houck David Angeloff Cindy Hickox June 16, 2020 Page 5 B. Plaintiff’s Wrongful Termination Cause Of Action Faib For The Same Reasons As H's First Cause 0f Action. Plaintiff’s second cause of action is based on the same allegations as his first. (Comp|., 1125.) It therefore fails for the same reasons. At minimum, Plaintiff cannot recover economic, non- economic, or punitive damages even if he prevails on th's cause of action. C. Plaintiff's Third Cause OfAction ForAlleged Failure To Provide Personnel Records Is Subject To Demur. Plaintiff’s third cause of action fails to alleged facts sufficient to establish the claim because Plaintiff has not alleged he ever made a demand for his personnel records under Labor Code section 1198.5. Plaintiff has therefore failed to allege facts sufficient to establish this cause of action. Without alleging when the request was made and when TransPak responded, Plaintist contention that “Defendants did not provide Plaintiff with a copy of his personnel file within 30 clays ofa written request for the same” is an imperm'ssible legal conclusion. (Comp|., 1132.) D. Plaintiff's Fourth Cause 0f Action For Alleged Failure To Provide Wage Statements Is Subject To Demur. Plaintist fourth cause of action fails to alleged facts sufficient to establish the claim because Plaintiff has not alleged it evermade a demand for his wage statements under LaborCodesection 226. Plaintiff has therefore failed to allege facts sufficient to establish this cause of action. Without alleging when the request was made and when TransPak responded, Plaintiff’s contentbn that“Defendants did not provide Plaintiff with a copy of his wage statements within 21 clays from the date of Plaintiff’s written request”is an impermissible legal conclusion. (Comp|., 1138.) Please do not hesitate to contact me if you have any questions. Sincerely, @413- Benjamin A. Emmert BAE/ 4839- 3026-3230. 1 099665. 1011 EXHIBIT 5 STALWART LAW GROUP 1100 GLENDON AVE., SUITE 1840, LOS ANGELES, CALIFORNIA 90024 | P: (310) 954-2000 |F: (310) 943-0303 Cl NDY@STALWARTLAW.COM June 18, 2020 VIA EMAIL Benjamin Emmert Littler Mendelson, P.C. 50 W. San Fernando, 7th Floor San Jose, CA 951 13 bemmert@littler.com RE: PUENTES V. TRANSPAK, INC, ETAL. Dear Benjamin, I reviewed Defendant’s June 16, 2020 meet and confer letter regarding Plaintiff s Complaint in this matter. I am hopeful that we Will be able t0 resolve any issues Without burdening the Court. Defendant states on the fourth page of its letter that “Plaintiff has not identified any alleged constitutional, statutory, or regulatory basis for his Section 1102.5 claim in his Complaint. Indeed, his Complaint is devoid of any statute that TransPak’s purported conduct allegedly violated.” Plaintiff directs Defendant to Paragraph 17 of Plaintiff s complaint: “As set forth above, Plaintiff reasonably believed that Transpak violated numerous sections of the California Code of Regulations (“CCR”), as enforced by DOSH, including: CCR section 5155, Which establishes requirements for controlling employee exposure t0 airborne contaminants and skin contact with those substances Which are readily absorbed through skin; CCR section 5143, which establishes requirements regarding the construction, installation, inspection, testing, and maintenance of exhaust systems in the workplace; and CCR section 5141, Which establishes requirements to control harmful exposure to employees by way 0f engineering controls, administrative controls, 0r control by respiratory protective equipment.” (emphasis added). Further, Defendant states that fumes from the hot melt machine were open and notorious and known t0 third parties, and as such, Plaintiff” s reporting on the same could not properly be “disclosed” pursuant t0 Labor Code section 1102.5. As an initial matter, there is n0 “open and notorious” standard under the Labor Code provision. Secondly, stating that the fumes were known t0 third parties is conclusory and disputable. And, whether the hot melt produced Visible fumes, and Whether the hot melt produced Visible fumes that violated the California Code 0f Regulations, as Plaintiff suspected, are entirely separate issues. Lastly, Plaintiff reported his concerns to the Department 0f Occupational Safety and Health, in addition t0 his supervisors. Presumably, the Department did not know the fumes posed a danger to employees and others prior t0 Plaintiff” s reporting 0f the same. This is corroborated by the Department’s subsequent investigation of Plaintiff s complaints. Ultimately, this discussion is premature in light of the traditional rule that “in testing a pleading against a demurrer the facts alleged. . .are deemed t0 be true, however improbable they may be.” Del E. Webb Corp. v. Structural Materials C0. (1981) 123 CA3d 593, 604. Further, Defendant confusingly states that Plaintiff” s claim for economic, non-economic, and punitive damages should be struck from the Complaint because “Plaintiff admits TransPak terminated his employment because of his involvement in the altercation With his coworker.” Defendant cites t0 Paragraph 13 of the Complaint Which states in full: “Three days later, 0n November 18, 2019, Plaintiffwas terminated for a false pretextual reason. Transpak allegedly terminated Plaintiff because of his involvement in an altercation. However, the other employee that instigated the altercation was not terminated. On information and belief, a substantial motivating reason for Transpak’s decision to terminate Plaintiff was because 0f Plaintiff’s reporting 0f unsafe working conditions t0 DOSH, Which was made in good faith t0 report What he reasonably believed t0 be illegal.” (emphasis added). Any reading of the contents 0f the Complaint, and the specific paragraph to Which Defendant cites, will show that Plaintiff made n0 such admission. Instead, Plaintiff includes Defendant’s “alleged[]” reason for termination and states that it is false and pretextual-i.e., not the real reason for termination and certainly not an “admission” that Defendant’s stated reason is the actual reason. Lastly, Defendant contends that Plaintiff” s third and fourth causes 0f action fail t0 allege facts sufficient t0 establish the claim that Defendant failed to provide wage statements pursuant t0 Labor Code sections 1198.5 and 226. Defendant explains this is because Plaintiff has not alleged it ever made a demand for wage statements 0r personnel records pursuant t0 Labor Code sections 1198.5 or 226.1 Plaintiff specifically alleged that “Defendants did not provide Plaintiff with a copy of his personnel file within 30 days 0f a written request for the same” and that “Defendants did not provide Plaintiff With a copy 0f his wage statements Within 21 days from the date of Plaintiffs written request”. These are statements 0f fact, not impermissible legal conclusions. 1 Defendant’s counsel sent Plaintiff’ s counsel a letter on February 12, 2020, acknowledging Plaintiff s November 18, 2019 letter, and adding, “please find documents responsive t0 your written request 0fNovember 18, 2019 for personnel and payroll records pursuant t0 California Labor Code sections 226, 432, and 1198.5”. 1100 GLENDON AVENUE, SUITE 1840 LOS ANGELES, CALIFORNIA 90024 (310) 954-2000 I STALWARTLAW.COM Importantly, the distinction between “ultimate facts” and “evidentiary” matters is 0f diminishing importance because a complaint Will be upheld if it provides the defendant with “notice 0f the issues sufficient to enable preparation 0f a defense.” Doe v. City ofLos Angeles (2007) 42 C4th 531, 549-550. Plaintiff has done just that. Defendant’s purported issues with Plaintiff s allegations as pled, appear t0 be an attempt t0 unnecessarily drum up costs for both Defendant and Plaintiff- not an attempt to remedy perceived issues Within Plaintiff s Complaint. These are nuisance obj ections and are without merit. If I’m overlooking something, please let me know. While I’m happy t0 remedy “patent defects” voluntarily, Defendant has not presented any such defects. Please let me know if you would like to discuss What an amendment to Plaintiff’ s Complaint would 100k like. Very truly yours, 09%5 Ciny Hickox 1100 GLENDON AVENUE, SUITE 1840 LOS ANGELES, CALIFORNIA 90024 (310) 954-2000 | STALWARTLAW.COM EXHIBIT 6 I Llwer Littler Mendelson, P.C.Silicon Valley Office 50 W. San Fernando, 7th Floor San Jose, CA 951 13.2303 Benjamin A. Emmert 408.998.4150 main July 14 2020 408.288.5686faxbemmert@littler.com VIA EMAIL CINDY@STALWARTLAW.COM Ji-In Lee Houck David Angeloff Cindy Hickox Stalwart Law Group 1100 Glendon Ave., Suite 1840 Los Angeles, CA 90024 Re: Manuel Fuentes v. TransPak, MC. Santa Clara County Superior Court Case No. 20CV366569 Dear Ms. Hickox, Th's letter is in response to Plaintiff’s June 18, 2020 response to Transpak’s meet and confa letter. 1. First Cause ofAction: LaborCode Section 1102.5 As to the requirement that Plaintiff make a “protected disclosure,” Transpak asserted in its letter that Plaintiff must allege facts establishing that the information disclosed, or threatened to be disclosed, was not already known to third parties. M'Ze-Kurzman v. Mar/h Community College DH. (2012) 202 Cal.App.4th 832, 858-859. In response, Plaintiff claims, without any citation, that there is no“open and notorious”standard as to LaborCode section 1102.5 claims. However, M'ze-Kurzman establishes that the information must not already be known to third parties. 1d,, at 858. Whereas your letter asserts that whether the fumes were known to third parties is conclusory and disputable, Plaintiff alleges that “[t]he fumes were so bad, Plaintiff was not onry able to smell the fumes, he could see the fumes.” (Complaint, 1] 8.) Thus, on the one hand, Plaintiff asserts that the fumes were so bad that he could see and smell the fumes such that “Transpak needed a serious ventilation system in place to address the fumes the machines were emitting.” (Complaint, 1H] 8-9.) On the other hand, Plaintiff's letter suggests that none of the other workers, supervisors, or managers that were working inside the same warehouse were aware of the smell or sight of the fumes or the ventilation issues. Plaintiff cannot have it both ways. Because Plaintiff’s allegations provide that others inside the warehouse must have been aware of the fumes, such allegation negates the requirement that the information Plaintiff disclosed was not already known to third parties. As stated in our previous letter, these allegations are fatal to Plaintiff’s first cause of action for violation of Labor Code section 1102.5, which is subject to demurrer. Ji-In Lee Houck David Angeloff Cindy Hickox July 14, 2020 Page 2 2. Motion to Strike Economic, Non-Economic and Punitive Damaqes Defendant asserts that Plaintiff’s claims for economic, non-economic and punitivedamages should be stricken from his Complaint because he admits Transpak terminated his employment because of his involvement in an attercation with a co-worker. (Complaint, 1] 13.) Plaintiff points to his allegation in Paragraph 13 which states that“a substantial motivating reason for Transpak’s decision to terminate Plaintiff was because of Plaintiff’s reporting of unsafe working conditions to DOSH.” Id. This still does not negate the fact that Plaintiff admitted that Transpak terminated him because of his involvementin an attercation. Id. Indeed, this is theexact scenario contemplated in Harris v. C/l‘y 0f5anta Monica, 56 Ca|.4th 203 (2013), which provides: The same-decision showing is a hypothetical, counterfactual construct. In mixed-motivecases like Price Waterhouseand American Genera; what happened in actuality is that discrimination played a substantial role in the employment decision (or at least a jury could so find), even if discrimination was not a “but for” cause of the decision. For a person in Ann Hopkins's orAnita Rowland's position, the sting of unequal treatment can be quite real even if the challenged employment action would have occurred in any event. Atthough we do not doubt the stigmatic harm that discrimination can cause, we are reluctant to find such harm compensable in damages underthe FEHA when other; nond'scriminatory factors wouldhave broughtabout theplaintims discharge. Theoretically, it may be possible to distinguish, for example, between a plaintiff's emotional distress resutting specifically from discrimination and the plaintiff‘s emotional distress resuiting from the termination itself. Practically, however, as Harris's counsel conceded at oral argument, it's unreal'stic to ask the trier of fact to parse the plaintiffs past mental state so finely and to award anal the quantum of damages that corresponds ta the emotional dbtress resulting specifically from d'scrimination rather than the termination itsefi' ifthe employer makes a same-decb'ian showing. When an employee is fired, and when discrimination has been shown to be a substantial factor but not a “but for" cause, we believe it '5 a fair supposition that the primary reason for the d'scharged employee's emotional d'stress '5 the d'scharge itself. Such d'stress '5 notcompensabb under the FEHA-indeed, compensatbn for such distress would be a windfall to the employee-if the employer proves it would have fired the employee anyway for lawful reasons. Ji-In Lee Houck David Angeloff Cindy Hickox July 14, 2020 Page 3 . . . But given the inherent difficulties in disentangling the possible sources ofa plaintiff's emotional distress upon being fired, we conclude that a terminatbn decbl'on substantialy motivated by d'scrimination '5 not compensable in damages undersectbn 12940(a) when an empbyermakes a same-dec'sian showing. Id., at 233-34. Accordingly, because Plaintiff has already, at the very least, made an admission of a same decision showing, his claims for economic, noneconomic and punitive damages are subject to a motion to strike. 3. Third and Fourth Causes of Action: Violations of Labor Code Sections 1198.5 and 226 With regard to Plaintiff’s third cause of action for failure to provide personnel records and fourth cause of action for failure to provide wage states, Plaintist letter fails to address the specific argument that Plaintiff failed to allege in his Complaint that he ever made a demand for his personnel records and wage statements, or when such demand was made. Instead, Plaintiff essentially admits the deficiency by repeating the assertion that Defendants did not provide a copy of the requested documents within the specified time period. Therefore, from the face of the Complaint, Plaintiff has not asserted a prima facie case. Given the above, it is clear that the parties are at an impasse on these issues given Plaintiff’s refusal to correct the blatant deficiencies in h'B Complaint. As such,Transpakintends on movhg forward with its demurrerand motion to strike. In advanceof its filing, we would like to schedule a call to discuss the foregoing. Please let me know yourearliest availability as ourfiling deadline is July 16, 2020. Sincerely,aw Benjamin A. Emmert BAE/ 4820-0358-2914.1 099665. 1011