OrderCal. Super. - 6th Dist.August 17, 2020KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA ANITA NARIANI SCHULZE, Case N0.: 20CV36961 1 Plaintiff, ORDER CONCERNING DEFENDANT APPLE, INC.’S VS. (1) DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT AND APPLE, INC., et a1., (2) MOTION TO STRIKE PLAINTIFF’S FIRST AMENDED COMPLAINT Defendants. Plaintiff Anita Nariani Schulze brings employment discrimination and related claims against Apple, Inc. in her individual capacity. She also brings putative class and representative claims for Violation 0f the California Equal Pay Act (“EPA”) and related causes 0f action, 0n behalf 0f other female software engineers at Apple. Apple demurs t0 every cause 0f action in the operative First Amended Complaint (“FAC”) and moves t0 strike the class, representative, and punitive damages allegations. The Court issued a tentative ruling, and n0 one appeared at the March 25, 2021 hearing t0 contest it. The Court now issues its final order, which: a) SUSTAINS the demurrer in part and OVERRULES it in part; and b) GRANTS IN PART the motion t0 strike, and deems the remainder of the motion MOOT. Electronically Filed by Superior Court of CA, County of Santa Clara, on 3/26/2021 5:44 PM Reviewed By: R. Walker Case #20CV369611 Envelope: 6123685 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO I. BACKGROUND Apple hired Ms. Schulze as a Technical Engineer in 2008. (FAC, 1] 11.) Her Senior Manager was a Hindu Indian man and her Direct Manager was a Muslim Pakistani man (collectively, “Managers”). (1d,, 1] 12.) Ms. Schulze is a Hindu Indian woman whose ancestry traces back t0 the Sindh region 0f modern-day Pakistan, one 0f numerous regions greatly impacted by the 1947 partition 0fwhat was then “British India” into what is now modern-day India and Pakistan. (Ibid) This partition created friction between the Hindu and Muslim communities in the Sindh region, often resulting in Violence, and spurred a mass migration 0f people both in and out 0f the region. (Ibid) Ms. Schulze’s Managers knew 0f and were familiar with her racial, national, and religious heritage. (Ibid.) According t0 Ms. Schulze, their respective nationalities historically Viewed women as subservient, and they treated Ms. Schulze that way. (Id., 1] 13.) That the Sindhi Hindu nationality is known for its technical acumen, encouraging men and women alike t0 pursue technical careers and women t0 rise above their historically-subservient role, exacerbated the Managers’ discriminatory treatment. (Ibid) Ms. Schulze’s Managers consistently excluded her from team meetings but included her male counterparts. (FAC, 1] 14.) When Ms. Schulze discovered errors in the team’s work and notified her Managers, they would respond in a condescending manner and dismiss her discoveries. (Ibid.) If team projects involving Ms. Schulze were late, her Managers would exclusively blame her. (Ibid) The Managers would micromanage Ms. Schulze’s work by monitoring the speed at which she performed assignments, something that did not happen t0 male employees. (Ibid) Finally, Ms. Schulze’s Managers told her that she needed t0 be more involved in her employment and that the reason she was not more involved was because she had children. (Ibid) Despite this treatment, Ms. Schulze received positive performance reviews. (FAC, 1] 15.) For example, in 2017, she directed her own “feature,” 0r project, for Apple. (Ibid) This made her a “Directly Responsible Individual” 0r “DRI,” a coveted role at Apple because 0f its typical association with substantial bonus packages. (Ibid) At completion 0f the feature directed by Ms. Schulze, Apple gave her a performance review that stated, “[Plaintiffl’s innovation and KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO methodical approach led t0 her being a key contributor t0 the Zero Shutter Lag effort. [Plaintiffl’s drive t0 deliver a solution for this very complex feature really helped the team realize this Vision, it was one 0f our top-level camera features this year.” (Ibid) Despite these successes, Defendant did not give Ms. Schulze promised promotions, bonuses, annual salary increases, 0r restricted stock units. (Ibid) In November 2018, Ms. Schulze complained t0 Human Resources that she was not receiving promised compensation from Apple because she is a woman. (FAC, 1] 16.) In response, Apple began t0 retaliate against her by issuing poor performance reviews, using these reviews as an excuse t0 implement a Performance Improvement Plan (“PIP”), and placing Ms. Schulze 0n an internal “D0 Not Hire List.” (Ibid) Defendant’s stated reason for implementing the PIP was that Ms. Schulze was missing required meetings. (Ibid.) But Ms. Schulze only missed two meetings and her absences were due t0 illness and childcare. (Ibid) Ms. Schulze notified her supervisor that she disagreed with the underlying basis 0f the PIP and her supervisor verbally agreed with her. (Ibid) But the supervisor told Ms. Schulze that she would still need t0 sign the PIP, which Ms. Schulze refused t0 d0. (Ibid) Because Apple ignored her complaints and her workplace became intolerable due t0 the retaliation she suffered, Ms. Schulze had n0 choice but t0 resign her employment 0n February 12, 2019. (Ibid) Ms. Schulze seeks t0 represent a putative class 0f “similarly situated female software engineers who worked for Defendant in California during the four years preceding the filing of [the FAC].” (FAC, 1] 18.) She alleges that her claims are typical 0f the proposed class because Apple did not provide her “equal compensation in line with male software engineers in the form 0f salary, bonuses, and stock options, complete payment 0fwages when they were due and at time of termination 0r quit, and complete and accurate wage statements.” (Id., 1] 19.) Based 0n these allegations, Ms. Schulze brings the following individual claims: (1) discrimination 0n the basis 0f sex in Violation 0f Government Code section 12940, subdivision (a) (the Fair Employment & Housing Act or “FEHA”); (2) discrimination on the basis 0f race in Violation 0fFEHA; (3) discrimination on the basis of national origin in Violation ofFEHA; (4) discrimination on the basis of religion in Violation ofFEHA; (5) harassment 0n the KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO basis 0f sex in Violation 0fFEHA (Government Code section 12940, subdivision 0)); (6) failure t0 take reasonable steps t0 prevent discrimination and harassment in Violation ofFEHA (Government Code section 12940, subdivision (k)); (7) retaliation in Violation ofFEHA (Government Code section 12940, subdivision (h)); and (8) constructive wrongful termination in Violation 0f public policy under Article I, Section 8 0f the California Constitution and FEHA. Ms. Schulze also brings putative class claims for: (9) failure t0 pay all wages pursuant t0 Labor Code sections 201-204; (10) wage statement Violations under Labor Code section 226; (1 1) failure t0 pay equal compensation pursuant t0 Labor Code section 1197.5 (the EPA); and (12) unlawful, unfair, and fraudulent business practices under Business & Professions Code section 17200, et seq. Finally, Ms. Schulze brings: (13) a representative claim under the Private Attorneys General Act (“PAGA”) derived from her putative class claims. On November 6, 2020, Apple filed: (1) a demurrer t0 the FAC; and (2) a motion t0 strike the class and punitive damages allegations. The action was subsequently deemed complex and reassigned t0 this Court. Ms. Schulze filed oppositions t0 both motions, which have now been fully briefed by both sides. II. DEMURRER Apple demurs t0 the FAC 0n the ground that it fails t0 plead facts adequate t0 support any 0f the causes 0f action asserted therein, including both the individual and class/representative claims. (Code CiV. Proc., § 430.10, subd. (6).) Ms. Schulze opposes the demurrer in all respects. A. Legal Standard The function 0f a demurrer is t0 test the legal sufficiency 0f a pleading. (Trs. ofCapital Wholesale Elec. Etc. Fund v. Shearson Lehman Bros. (1990) 221 Cal.App.3d 617, 621 .) Consequently, “[a] demurrer reaches only t0 the contents 0f the pleading and such matters as may be considered under the doctrine ofjudicial notice.” (South Shore Land C0. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations and quotations omitted; see also Code CiV. Proc., § 430.30, subd. (a).) “It is not the ordinary function 0f a demurrer t0 test the truth 0f the plaintiff’s allegations 0r the accuracy with which he describes the defendant’s conduct. Thus, the facts alleged in the pleading are deemed t0 be true, however improbable they may be.” KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958, internal citations and quotations omitted.) In ruling on a demurrer, the allegations 0f the complaint must be liberally construed, with a View t0 substantial justice between the parties. (Glennen v. Allergan, Inc. (2016) 247 Cal.App.4th 1, 6.) Nevertheless, while “[a] demurrer admits all facts properly pleaded, [it does] not [admit] contentions, deductions 0r conclusions 0f law 0r fact.” (George v. Automobile Club ofSouthem California (201 1) 201 Cal.App.4th 1112, 1120.) A demurrer will succeed where the allegations and matters subject t0 judicial notice unquestionably disclose a defense 0r bar t0 recovery. (Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 183.) B. Individual Claims 1. The First through Fourth Causes ofActionfor Discrimination and the Sixth Cause ofActionfor Failure t0 Prevent Discrimination and Harassment Generally to prove discrimination, the plaintiff must provide evidence that: (1) she was a member 0f a protected class; (2) she was qualified for the position she sought 0r was performing competently in the position she held; (3) she suffered an adverse employment action, such as termination, demotion, 0r denial 0f an available job; and (4) some other circumstance suggests discriminatory motive. (Cucuzza v. City ofSam‘a Clara (2002) 104 Cal.App.4th 1031, 1038, citing Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) Ms. Schulze alleges all 0f these elements here, as well as some specific facts t0 support them. Apple essentially argues that Ms. Schulze’s allegations are not specific enough and are themselves based 0n stereotypes. But contrary t0 Apple’s argument, “[t]0 survive a demurrer, the complaint need only allege facts sufficient t0 state a cause 0f action; each evidentiary fact that might eventually form part 0f the plaintiff’s proof need not be alleged.” (CA. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872 [identities 0f allegedly negligent employees need not be provided t0 state a claim against school district].) With limited exceptions not applicable here, the rules 0f pleading require n0 more than “general allegation[s] of ultimate fact.” (Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1548 [allegation KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO that asserted nuisance “affect[s] a substantial number 0f people at the same time” suffices t0 state a claim although it mirrors the element 0f the claim].) “The pleading is adequate so long as it apprises the defendant 0f the factual basis for the claim.” (Id. at p. 1549.) Ms. Schulze correctly notes that Apple’s authorities speak t0 the summary judgment context, where the plaintiff must present “some evidence” supporting a reasonable inference 0f a discriminatory motive. (Guthrey v. State ofCaliform'a (1998) 63 Cal.App.4th 1108, 1118 [“The mere fact Lucas is a female and plaintiff a male does not give rise t0 the inference that her alleged aggressive conduct was motivated by a desire t0 discriminate 0n the basis 0f gender. Without some evidence t0 make such an inference a reasonable one, it is mere speculation t0 suspect gender discrimination led t0 Lucas’s allegedly hostile conduct.”].) But again, allegations 0f ultimate fact suffice t0 stave off a pleadings attack. Apple’s demurrer t0 Ms. Schulze’s claims for discrimination accordingly fails. In addition, Apple contends that the sixth cause 0f action for failure t0 prevent discrimination and harassment fails t0 state a claim because Ms. Schulze fails t0 state an underlying claim for discrimination. As the Court has found the discrimination claim is adequately pled, the Court overrules Apple’s demurrer t0 this claim. 2. The Fifth Cause ofActionfor Harassment The elements 0f a claim for sexual harassment under FEHA are: “(1) plaintiff belongs to a protected group; (2) plaintiffwas subj ect t0 unwelcome sexual harassment; (3) the harassment complained 0fwas based 0n sex; (4) the harassment complained 0fwas sufficiently pervasive so as t0 alter the conditions 0f employment and create an abusive working environment; and (5) respondeat superior.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608 (Fisher); see also Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279 [endorsing standard stated in Fisher].) Here, Ms. Schulze does not allege the ultimate fact that the harassment she experienced was sufficiently pervasive t0 alter the conditions 0f employment and create an abusive working environment, nor d0 her specific factual allegations support this conclusion. Fisher is KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO illustrative. It held that a demurrer was properly sustained where the plaintiff” s allegations did not address this element, explaining that [a]lth0ugh the complaint describes in general terms what acts occurred and where they occurred, it only alleges in a most conclusionary manner that Ms. Fisher saw Dr. Tischler commit sexual harassment against three named nurses. What acts she observed are not detailed and are left t0 the imagination. Even though it is reasonable t0 assume that she observed Tischler commit all the alleged acts, the complaint is deficient as there is n0 indication 0f the frequency 0r intensity with which these acts occurred. (Fisher, supra, 214 Cal.App.3d at p. 613, italics added.) Similarly, here, Ms. Schulze alleges that her Managers told Plaintiff that she needed t0 be more involved in her employment and that the reason she was not more involved was because she had children. During Plaintiffs employment with Defendant, Plaintiffs Senior and Direct Managers also consistently excluded Plaintiff from team meetings but included Plaintiffs male counterparts. When Plaintiff discovered errors in the team’s work and notified her Senior and Direct Managers, the Managers would respond in condescending ways and dismiss Plaintiffs discoveries. Additionally, Plaintiff’s Senior and Direct Managers would micromanage Plaintiffs work, through the monitoring of the speed in which she performed assignments, something that did not happen t0 other male employees. (FAC, 1] 54.) While such actions could potentially support a claim for harassment under some circumstances, Ms. Schulze does not allege that her Managers’ actions were so pervasive as t0 alter the conditions 0f her employment, 0r describe their frequency and intensity in a manner that would support this conclusion. The Court accordingly sustains Apple’s demurrer t0 this claim, but with leave t0 amend. KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO 3. The Seventh Cause ofActionfor Retaliation “[I]n order t0 establish a prima facie case 0f retaliation under the FEHA, a plaintiff must show (1) he 0r she engaged in a ‘protected activity,’ (2) the employer subjected the employee t0 an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L ’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) Apple argues that Ms. Schulze’s claim for retaliation fails because “while she claims she was retaliated against for complaining t0 HR through poor performance reviews and being placed 0n a PIP [citation], she alleges n0 facts identifying who placed her 0n a PIP 0r gave her poor reviews and whether the unidentified individual(s) knew of her HR complaint” or providing a timeline 0f the events at issue. Apple contends that these details are essential t0 allege causation. But again, Ms. Schulze need only plead the ultimate fact 0f causation t0 state a claim, which she does. Fisher is helpful again, explaining that causation may be alleged without the details Apple points t0: We note that Dr. Fisher did not plead the date when the FEHA complaint was filed 0r the date the lease was cancelled, that the lease was cancelled because he filed an FEHA complaint, 0r that SPPH knew that he filed the FEHA complaint. However, reading the complaint liberally, it is reasonable t0 infer that the reason SPPH refused t0 renew the lease was because 0f the FEHA complaint, especially since Dr. Fisher had occupied the office for many years, and it was still vacant when the second amended complaint was filed. (Fisher, supra, 214 Cal.App.3d at p. 617.) Here, as Apple acknowledges, Ms. Schulze does allege that her poor performance reviews and PIP resulted from her complaint t0 HR. The Court hence overrules the demurrer t0 this claim. 4. The Eighth Cause ofActionfor Constructive Wrongful Termination in Violation ofPublic Policy Ms. Schulze’s claim for wrongful termination is expressly based 0n constructive discharge as described in Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238 (“Turner”). (FAC, 1] 73.) Turner held that “[i]n order t0 establish a constructive discharge, an employee KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO must plead and prove ... that the employer either intentionally created 0r knowingly permitted working conditions that were so intolerable 0r aggravated at the time 0f the employee’s resignation that a reasonable employer would realize that a reasonable person in the employee’s position would be compelled t0 resign.” (Turner, supra, 7 Cal.4th at p. 125 1 .) The opinion explained: In order t0 amount t0 a constructive discharge, adverse working conditions must be unusually “aggravated” 0r amount t0 a “continuous pattern” before the situation will be deemed intolerable. In general, “[s]ingle, trivial, 0r isolated acts 0f [misconduct] are insufficient” t0 support a constructive discharge claim. Moreover, a poor performance rating 0r a demotion, even when accompanied by reduction in pay, does not by itself trigger a constructive discharge. (Turner, supra, 7 Cal.4th at p. 1247, citations omitted.) As with her harassment claim, Ms. Schulze does not plead enough t0 sustain this claim, whether through specific factual allegations 0r ultimate facts. She alleges: On February 12, 2019, given Defendant’s discriminatory, harassing, and retaliatory conduct, Plaintiff’s workplace became intolerable such that Plaintiff had n0 choice but t0 resign. During Plaintiff’s employment, Plaintiff’s Senior and Direct Managers consistently engaged in discriminatory and harassing conduct. In response t0 this discriminatory and harassing conduct, Plaintiff complained t0 Defendant’s Human Resource Department. After Plaintiffs complaint, Defendant engaged in a course 0f conduct, specifically the implementation 0f a PIP and the use of an internal do-not-hire list, intentionally designed t0 retaliate against Plaintiff for reporting harassment and discrimination. Defendant’s intentional conduct created an unreasonable and intolerable working environment for Plaintiff and resulted in Plaintiff having n0 other reasonable alternative but t0 resign. (PAC, ‘n 74.) KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO Notably, the specific course 0f intentional conduct Ms. Schulze alleges, “the implementation of a PIP and the use 0f an internal do-not-hire list,” does not, standing alone, amount t0 constructive discharge as a matter 0f law. (See Turner, supra, 7 Cal.4th at p. 1247 [“a poor performance rating 0r a demotion, even when accompanied by reduction in pay, does not by itself trigger a constructive discharge”].) Similarly, gender discrimination does not necessarily constitute constructive discharge: “The question [is] whether the discriminatory working conditions were so extreme as t0 coerce a reasonable employee t0 resign [u]nder the objective test set out in Turner. . ..” (Cloud v. Casey (1999) 76 Cal.App.4th 895, 905 (Cloud).) Here, Ms. Schulze does not allege that this objective standard is satisfied, even in general terms. Rather, she alleges that Apple’s actions created an unreasonable and intolerable working environment “for Plaintiff” (Italics added.) This terminology matters, because Turner specifically held an objective standard governs and that the conduct described by Ms. Schulze does not suffice. (See Cloud, supra, 76 Cal.App.4th at p. 905 [trial court correctly ruled that plaintiff’s resignation was not a constructive discharge as a matter 0f law, although evidence would support a determination that she was barred from advancing due t0 gender discrimination] .) In short, the Court sustains Apple’s demurrer t0 the eighth cause 0f action with leave t0 amend. C. Class and Representative Claims Apple demurs t0 (and moves t0 strike) the class allegations from the FAC 0n the stated basis that there is n0 reasonable possibility that the requirements for class certification will be satisfied. But Apple does not even address the requirements for class certification. Rather, it argues that the class and derivative representative claims fail t0 state a cause 0f action, even 0n an individual basis. So the Court will turn t0 that analysis. Ms. Schulze’s class and representative claims all derive from her EPA claim under Labor Code section 1197.5. Apple contends that Ms. Schulze fails t0 state a cause 0f action under that statute because she does not allege specific facts adequate t0 support her claim-specifically, she 10 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO does not identify any male “comparators” who were paid more for substantially similar work- and she does not allege a required element 0f the claim even in general terms. 1. Pleading and Proving an EPA Claim The EPA provides in relevant part that “[a]n employer shall not pay any 0f its employees at wage rates less than the rates paid t0 employees 0f the opposite sex for substantially similar work, when Viewed as a composite 0f skill, effort, and responsibility, and performed under similar working conditions, except where the employer demonstrates” that the wage differential is based upon one 0r more 0f the following factors: “(A) A seniority system[;] (B) A merit system[;] (C) A system that measures earnings by quantity 0r quality 0f production[;] (D) A bona fide factor other than sex, such as education, training, 0r experience. ...” (Lab. Code, § 1197.5, subd. (a).) Since the statute originally mirrored the Federal Equal Pay Act 0f 1963 (see 29 U.S.C. § 206, subd. (d)(1)), California courts rely 0n federal authorities construing the federal statute t0 interpret the EPA. (See Green v. Par Tools, Inc. (2003) 111 Cal.App.4th 620, 623 (Green).)1 Few California cases address the EPA by itself: “The apparent reason is that an aggrieved employee generally brings suit under both the California statute and the federal Equal Pay Act ..., 0r under the California [FEHA] 0r its federal counterpart. . ..” (Ibid) The elements 0f a prima facie case under the EPA are: (1) the employer paid a male employee more than a female employee (2) for equal (0r, since 2016, “substantially similar”) work considering the overall combination 0f skill, effort, and responsibility required, and (3) which is performed under similar working conditions. (Green, supra, 111 Cal.App.4th at p. 628, citing Corning Glass Works v. Brennan (1974) 417 U.S. 188, 195; CACI N0. 2740 (2021).) T0 1 The EPA has been amended several times, including through changes known as the “Fair Pay Act” that went into effect in 20 1 6. Before 2016, the statute more narrowly prohibited lower pay “in the same establishment for equal work 0n jobs the performance 0f which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where the payment is made pursuant t0 a seniority system, a merit system, a system which measures earnings by quantity 0r quality 0f production, 0r a differential based 0n any bona fide factor other than sex.” (Former Lab. Code, § 1197.5, subd. (a), added by Stats.1949, c. 804, p. 1541,§ 1; amended by Stats.1957, c. 2384, p. 4130, § 1, Stats.1965, c. 825, p. 2417,§ 1, Stats.1968, c. 325, p. 705, § 1, Stats.1976, c. 1184, p. 5288, § 3, Stats.1982, c. 1116, p. 4034, § 1, Stats.1985, c. 1479, § 4.) The federal Equal Pay Act continues t0 employ this narrower language. (See 29 U.S.C. § 206, subd. (d)(1).) 11 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO make this prima facie showing, a plaintiff must ultimately demonstrate that she is paid lower wages than an appropriate “male comparator” for equal work. (Hall v. County ofLos Angeles (2007) 148 Ca1.App.4th 318, 324-325 (Hall).) The three-stage burden shifting analysis used t0 establish sex discrimination under the federal Equal Pay Act applies t0 a claim under the California EPA. (See Green, supra, 111 Cal.App.4th at pp. 623-626 [analogizing t0 the “McDonnell Douglas” burden shifting analysis applied in Title VII and FEHA cases].) Under this standard, once the plaintiff makes a prima facie showing in support 0f her claim, “the employer then has the burden 0f showing that one 0f the exceptions listed in section 1197.5 is applicable.” (Ibid) The employee may then show that the employer’s stated reasons are pretextual. (Ibid) 2. Discussion While n0 California case has addressed this issue, some federal district courts have held that a specific, appropriate comparator must be identified and described in some detail even at the pleading stage? In the Court’s View, such a requirement would conflict with the principle that “[t]he prima facie case under McDonnell Douglas is an evidentiary standard, not a pleading requirement.” (Swierkiewicz v. Sorema N. A. (2002) 534 U.S. 506, 510 (Swierkiewicz) [applying former federal notice pleading standard in a Title VII employment discrimination 2 See Reardon v. Herring (ED. Va. 2016) 191 F.Supp.3d 529, 547 (at the pleading stage, the court must evaluate whether the plaintiff has adequately alleged that her male comparators held jobs requiring equal Skill, effort, and responsibility); Bailey v. SC Department 0fCorrections (D.S.C., Feb. 23, 2018, N0. CV 3: 17-3500-TLW-KDW, 2018 WL 2144548, at *7 (“conclusory allegations 0f largely unidentified comparators with n0 detail as t0 relative salaries, time-frames, or the skill, effort, and responsibilities 0f the employees is not sufficient t0 permit a reasonable inference that Defendant is liable for [a federal] EPA Violation”), report and recommendation adopted sub nom. Bailey v. South Carolina Department ofCorrectionS (D.S.C., May 9, 2018, N0. 3: 17-CV-3500-TLW-KDW, 2018 WL 2135168; Kairam v. West Side GI, LLC (S.D.N.Y., NOV. 9, 201 8, N0. 118CV01005ATSDA) 201 8 WL 6717280, at *5, report and recommendation adopted (S.D.N.Y., Jan. 31, 2019, N0. 18CIV1005ATSDA) 2019 WL 396573 (facts regarding comparator’s “common duties 0r job content” are required t0 state a federal EPA claim); but see Kassman v. KPMG LLP (S.D.N.Y. 2013) 925 F.Supp.2d 453, 471 (the Second Circuit has reserved judgment 0n the issue 0f “[W]hether 0r not a female plaintiff must identify a specific male comparator” t0 state a claim under the federal EPA). 12 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO case]; see also Alch v. Superior Court (2004) 122 Cal.App.4th 339, 381-3 82 [citing Swierkiewicz and noting that “[w]hile the pleading standard is stricter in California” than the former federal standard, “the plaintiff is required only t0 set forth the essential facts 0f his case with particularity sufficient t0 acquaint a defendant with the nature, source and extent 0f his cause 0f action”], internal citations and quotations omitted.) Even under this more forgiving standard, Ms. Schulze’s allegations supporting her EPA and derivative claims are not enough. She broadly and vaguely alleges that she was not provided with “equal compensation in line with male software engineers” (FAC, 1] 19) and, even more generally, that Defendant “failed t0 compensate Plaintiff and proposed class members in salaries, bonuses, stock options, and other employment benefits in a manner that was equal t0 male employees in similar positions” (id,w 77, 82, 99), “doing similar work, and performed under similar working conditions” (id,W 88, 93). While the EPA was broadened from covering “equal” work t0 covering “substantially similar” work, it is not so broad as t0 require that all employees working in the same general field 0f software engineering or all employees in positions that are merely “similar” in some manner be paid the same. Ms. Schulze’s allegations d0 not make it clear that she has a basis t0 allege an EPA Violation applying the appropriate standard. In opposition t0 Apple’s demurrer, Ms. Schulze does not acknowledge this issue 0r dispute that her representative and other class claims are wholly derived from her EPA claim. The Court therefore sustains Apple’s demurrer t0 all 0f these claims with leave t0 amend. D. Conclusion For the reasons discussed above, the Court SUSTAINS Apple’s demurrer t0 the fifth, eighth, and ninth through thirteenth causes of action WITH 30 DAYS’ LEAVE TO AMEND. The Court otherwise OVERRULES the demurrer. IV. MOTION TO STRIKE Specific pleading is required t0 support a request for punitive damages. (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1036, 1042 (Smith) [“conclusory allegations” d0 not support a request for punitive damages; request must be stricken where complaint is “devoid 13 KOOONONUl-hwwu-t NNNNNNNNNHHHHHHHHHH OONONM-PWNHOKOOONONm-PWNHO 0f any factual assertions supporting a conclusion [defendant] acted with oppression, fraud 0r malice”].) “[W]rongful termination, without more, will not sustain a finding 0f malice or oppression.” (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 717.) Apple correctly argues that Ms. Schulze fails t0 plead any specific facts in support 0f her claim for punitive damages. Her conclusory allegations are substantively indistinguishable from those rejected by Smith. (See Smith, supra, 10 Cal.App.4th at pp. 1036, 1042.) In opposition t0 Apple’s motion, Ms. Schulze continues this approach by merely stating her conclusion that “[b]ecause Plaintiff alleges conduct that, if proved, would provide a basis for punitive damages, the Court should deny Defendant’s motion ....” The Court accordingly GRANTS Apple’s motion t0 strike with regard t0 Ms. Schulze’s punitive damages allegations. The following portions 0f the FAC are hereby struck with 30 days’ leave t0 amend: o “Plaintiff is thus entitled t0 recover punitive damages from Defendant, according t0 proof.” (FAC,w 31, 37, 43, 49, 57, 65, 70.) o “Punitive damages according t0 proof;” (Paragraph 4 of the Prayer for Relief.) In light of the Court’s ruling 0n Apple’s demurrer, Apple’s alternative request t0 strike Ms. Schulze’s class and representative allegations is MOOT. IT IS SO ORDERED. Date: The Honorable Sunil R. Kulkarni Judge 0f the Superior Court 14 March 26, 2021