Motion LeaveCal. Super. - 6th Dist.November 20, 20209-14-21 9-14-21 Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/2/2021 3:21 PM Reviewed By: A. Floresca Case #20CV373869 Envelope: 6777830 20CV373869 Santa Clara - Civil A. Floresca WV 10 H 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Todd K. Davis State Bar Number 169654 FARLING, HECHT & DAVIS, LLP 96 North Third Street, Suite 660 San Jose, CA 95112 (408) 295-6100 Attorneys for plaintiff, Kimberly Doe SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA KIMBERLY DOE; Case NO: 20-CV~373869 Plaintiffs; NOTICE OF MOTION FOR LEAVE TO FILE A FIRST AMENDED V. COMPLAINT; BBVA USA, an Alabama DATE: , 2021 Corporation; MAHMOUD ALAEDDIN, TIME: 9:00 a.m. an individual; and DOES l to DEPT: 19 30, inclusive; Honorable Peter Kirwan TO ALL PARTIES AND THEIR ATTORNEY’S OF RECORD: NOTICE IS HEREBY GIVEN that on , 2021 at 9:00 a.m., or as soon thereafter as this matter may be heard in Department 19 of-the above-entitled Court, pursuant to Code of Civil Procedure section 473(a) Plaintiff will move this court for leave to file a First Amended Complaint (attached hereto as Exhibit "A"). This motion is based on the grounds that it is in the furtherance of justice to allow the filing of the First Amended Complaint. It is expected that this Motion will be based on this notice, the attached Memorandum of Points and.Authorities, the Declaration of Todd K. Davis, and such other evidence, both oral and documentary that may be produced at or before the hearing on this Motion. l 1O H 12 13 17 18 19 20 2] 22 23 24 25 26 27 28 hear, DATED: July 1, It is expected that this Motion.will require twenty'minutes to argue and submit. 2021 FARLING, HECHT & DAVIS By://' Todd K. Davis Attorney for Plaintiff Kimberly Doe 10 H 12 13 14 15 16 17 l8 l9 20 21 22 23 24 25 26 27 28 Exhibit "A” (Proposed First Amended Complaint) 10 H 12 16 17 18 l9 2O fl 22 23 24 25 26 27 28 TODD K. DAVIS State Bar Number 169654 FARLING, HECHT & DAVIS, LLP 96 North Third Street, Suite 660 San Jose, CA 95112 (408) 295-6100 Attorneys for Plaintiff, Kimberly Doe SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA (Unlimited Jurisdiction) KIMBERLY DOE; Case NO. 20-CV-373869> ) ) [Proposed] Plaintiff, ) FIRST AMENDED COMPLAINT ) v. ) 1. Harassment Based Upon Sex; ) 2. Retaliation; BBVA USA, an Alabama ) 3. Wrongful Termination in Corporation; MAHMOUD ALAEDDIN,) Violation of Public Policy; an individual; and DOES 1 to ) 4. Breach of the Covenant of 30, inclusive; v Good Faith and Fair Dealing; 5. Battery;) ) Defendants. ) ) Plaintiff Alleges: GENERAL ALLEGATIONS l. Plaintiff, Kimberly Doe (Doe), is an individual residing in Santa Clara County CaliforniaVand at all times mentioned herein was employed by defendant BBVA USA. 2. Defendant, BBVA USA (BBVA) iS an Alabama corporation lawfully doing business in California as a foreign corporation with locations throughout the state including, Santa Clara County. BBVA is an entity subject to suit under the California Fair Employment and TO T 12 13 17 18 19 20 fl 22 23 24 25 26 27 28 Housing Act, Government Code section 12900 et seq. (FEHA), in that BBVA is an employer that regularly employed five or more persons during Plaintiff’s employment. 3. Defendant, Mahmoud Alaeddin, (Alaeddin) is an individual residing in Los Angeles County, California and is subject to suit as an individual for personally’engaging in,unwelcome acts Of sexual harassment and battery in Violation of California Government Code section 12940(j)(1) and.various other statutes. Defendant Alaeddin was the Branch Manager of the BBVA Bank where the Plaintiff was employed in Sunnyvale, California and defendant Alaeddin following the Plaintiff’s hire became her direct supervisor and thereafter provided the Plaintiff with employee reviews, scheduling, assignments, work hours and determined all other aspects of the Plaintiff’s work and work conditions at BBVA USA. 4. Plaintiff is ignorant Of the true names and capacities of the defendants sued herein as Does l through 30 and identifies these defendants by such fictitious names. Plaintiff will amend this complaint to allege their true names and capacities when the same has been ascertained. Plaintiff is informed, believes and alleges that each Of the fictitiously named defendants is responsible in some manner for the occurrences herein allegedVand that plaintiff’s damages as alleged were proximately caused by such defendants. 5. Plaintiff is informed, believes and alleges that at all times mentioned herein, each of the defendants was the agent or employee of the others and was acting under their control and direction and that each.of the defendants, in acting as alleged, was acting within IO H 12 13 14 15 16 l7 18 19 20 m 22 23 24 25 26 27 28 the scope of Such employment and agency. 6. The;unlawful employment practices complained of herein.occurred primarily in Santa Clara County, California. 7. On or about October 19, 2020, Plaintiff filed a Complaint Of Sexual Harassment and Sexual and related wrongful termination against defendants BBVA and Alaeddin based on Alaeddin’s sexual harassment and battery of the Plaintiff, with the California Department of Fair Employment and Housing. The FEHA has issued a NotiCe'of Right to Bring Civil Action. 8. On or about March 11, 2019, Plaintiff was hired.by'BBVA,to work at the BBVA Bank in Sunnyvale, California as a Sales and Service Advisor. Plaintiff’s initial job duties included bank teller, customer assistance and banker. Plaintiff’s starting compensation, which induced her to accept the position, included a salary of $2l.80 per hour, with a promise of timely increases, a bonus based.on performance, medical benefits, dental benefits and flexible vacatiOn and medical leave. Plaintiff accepted the offer of employment made by the defendants, and each of them, based on the representations made by defendants with regard, to compensation, benefits, advancement opportunity and working environment. The plaintiff relied on these representations in agreeing to accept employment with the defendants and each of them. 9. Thé Plaintiff met or exceeded BBVA’S expectations when they hired her and she received positive reviews throughout her employment history with defendants. 10 T2 13 14 15 17 18 l9 20 21 22 23 24 25 26 27 28 10. Beginning in August 2019 and continuing throughout her employment at BBVA, Plaintiff was subjected to an unwanted and continuous pattern of sexual harassment from defendant Alaeddin. Plaintiff first became aware of defendant Alaeddin’s sexual interest in her when Alaeddin invited the Plaintiff to dinner and to other non~work related social events and thereafter began,to make sexually related comments to the Plaintiff and about the plaintiff. Alaeddin,commented.to the Plaintiff about the Plaintiff’s appearance and made comments to other employees of BBVA about the Plaintiff’s appearance that were demeaning to the plaintiff. From that time forward Alaeddin made numerous comments to Plaintiff about Plaintiff’s body, her appearance, her sexuality and began to tell the Plaintiff that he loved her. Defendant Alaeddin continually hugged the plaintiff, he invited her to social events, including a vacation with a Shared room and made other sexual references. ll. On or about August 2019, while on the premises of BBVA and within the course and scope of employment and during work hours, defendant Alaeddin forcibly touched the Plaintifif's shoulders and back.without the Plaintiff’s permission, while calling the Plaintiff ”Beautiful”; ”Princess"; “Barbie Doll"; "Angel” and telling the Plaintiff ”I love you". The Plaintiff felt unable to report this incident or prior incidents of sexual harassment to any other employee of BBVA as defendant Alaeddin was the branch manager of the BBVA branch where the Plaintiff worked and there were no employees present that had authority over defendant Alaeddin. TO V 12 13 14 16 l7 $8 19 20 2] 22 23 24 25 26 27 28 12. From August 2019 through.November 25, 2019, when the Plaintiff was forced to resign due to Defendant Alaeddin’s conduct, the Plaintiff was subjected to continuous propositions by’the defendant Alaeddin to have dinner with him, to go on a weekend away with him or otherwise engage in unwanted social activities with Alaeddin, which Alaeddin stated would be romantic in nature, despite the Plaintiff rejecting all of Defendant Alaeddin’s advances. In or about November 2019 the Plaintiff asked Defendant Alaeddin if she could have time off to go on vacation. When Defendant Alaeddin learned that the Plaintiff was planning on going 0n vacation with her boyfriend, he denied her request. 13. Following this series of acts Of pervasive sexual harassment by Alaeddin and the hostile environment which was created at Plaintiff’s work place at BBVA, plaintiff resigned her employment on November 25, 2019. FIRST CAUSE OF ACTION (Harassment Based Upon Sex in Violation of the FEHA) l4. Plaintiff repeats and realleges each Of allegations contained in paragraphs l through_13 and incorporates those allegations herein as though set forth in full. 15. Defendants’ conduct at all times stated herein.was governed by the Fair Employment and Housing Act (FEHA) and Government Code sections 12940(j)(l> et seq., prohibiting unlawful harassment on the basis of sex. 16. Plaintiff Doe was the recipient of a continual unwelcome pattern of sexual discrimination and harassment, including harassment and assault Of a sexual nature by defendant Alaeddin. 5 10 H 12 13 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AS a result of Defendant Alaeddin’s harassing conduct, Plaintiff’s ability’to perforwther duties at work were compromised. The conduct of defendant Alaeddin as described herein constituted a hostile work environment due to sexual harassment. l7. Defendant Alaeddin’s harassing actions in his capacity as the Branch Manager of defendant BBVA’S Sunnyvale Branch and as the direct supervisor of the Plaintiff are grounds for Strict liability against BBVA.USA. Additionally, Alaeddin's acts of sexual harassment and sexual assault against Plaintiff were known, or partially'known, by other employees of BBVA as defendant Alaeddin discussed Plaintiff's appearance and his intentions toward Doe with other BBVA employees. BBVA, despite knowledge of the harassing conduct, failed to conduct an investigation and/or take remedial measures to prevent further harassment from occurring. Such conduct constitutes unlawful harassment in employment on account of sex in Violation of Government Code section 12940(j)(l) and (k). 18. The conduct of the defendants and each of them as described herein violated Civil Code section 51.9 et seq. and constitutes sexual harassment as defined therein, as well as all common law claims of sexual harassment. AS a direct and proximate result of the conduct Of the defendants, as alleged herein, the Plaintiff is entitled to the remedies allowed by Civil Code section 52 et seq. 19. As a direct and proximate result Of the harassing and discriminatory'acts and.omissions alleged herein, by‘the defendants and each.of them, the plaintiff has suffered loss of wages, earning capacity and benefits. As a further result of the conduct of the 10 H 12 13 14 17 18 19 20 T 22 23 24 25 26 27 28 defendants and each Of them, the Plaintiff has sufferedvthe loss of such employment-related.benefits and.opportunities as promotion, job satisfaction, job security and other employment related benefits. As a further result Of the conduct of the defendants and each of them, the plaintiff has suffered aggravation and past emotional distress that resolved by May 2020. As a result Of the harm incurred by‘the Plaintiff and caused by the defendants and each of them, the plaintiff has suffered damages in an amount to be determined according to proof at trial. 20. The above alleged conduct by the defendants and each_of them was done with malice, fraud and oppression, in a reckless disregard of the plaintiff’s rights under California Government Code sections 12940, and 12926(j) et seq. Specifically, the discriminatory and malicious acts were carried out by managing employees of the defendants who knew that the Plaintiff had not herself engaged in any misconduct. As a result of such malicious and oppressive acts on the part of the defendants and each of them, Plaintiff is entitled to an award of punitive damages in an amount sufficient to punish defendants and each of them to set an example to those similarly situated to defendants and each of them. SECOND CAUSE OF ACTION (Retaliation for Opposition to Sex Harassment) 21. Plaintiff repeats and realleges each of the allegations contained in paragraphs 1 through 20 and incorporates those allegations herein as though set forth in full. 22. The provisions of FEHA prohibit employers from engaging in sexual harassment and discrimination. The Plaintiff was subjected 7 10 H l2 13 14 16 17 19 20 21 22 23 24 25 26 27 28 to sexual harassment and related discrimination by the defendants and each of them. Plaintiff was constructively terminated by defendant BBVA after she was unable to perform her job related duties while working directly under defendant Alaeddin. 23. The conduct of the defendants and each of them, as alleged herein, prohibited the Plaintiff from working and constituted constructive termination in that the Plaintiff was not capable of continuing to work at BBVA do to the discriminatory and harassing behavior by the defendants and each of them. 24. The constructive termination of the Plaintiff by BBVA was a direct response to Plaintiff’s attempts to protect her employment rights entrusted.to her by FEHA. The constructive termination of the Plaintiff was retaliatory in nature and in Violation of Government Code section 12940(h) and 2 Cal. Code Reg. 7297.7. 25. As a direct and proximate result of the retaliatory, harassing and discriminatory acts alleged herein, by the defendants and each of them, the Plaintiff has suffered loss of wages, earning capacity, and benefits. The Plaintiff has suffered the intangible loss Of such employment related benefits and opportunities as promotion, job satisfaction, job security and other employment related benefits. As a further result of the retaliatory and discriminatory actions of the defendants and each of them, the Plaintiff has suffered aggravation and past emotional distress. As a result of the above described injuries, incurred by the Plaintiff and caused by the defendants and each of them, the Plaintiff has suffered damages in an amount to be determined according to proof at trial. IO H 13 14 15 17 18 19 20 21 22 2:3 24 25 25 27 28 26. The above described conduct of the defendants and each of them was done with malice, fraud and oppression_and in reckless disregard of plaintiff’s rights under California Government Code section 12940(a) et seq. Specifically, the discriminatory andlnalicious acts were carried out by managing employees of the defendants who knew that the Plaintiff had not herself engaged in any misconduct and failed to protect the Plaintiff fromlAlaeddin forcing the Plaintiff to separate her employment from BBVA. As a result of this malicious, fraudulent and oppressive conduct on the part of the defendant and each of them, plaintiff is entitled to an award of punitive damages in an amount sufficient to punish the defendants and each of them and set an example to those similarly situated to the defendants. Said punitive damages should be awarded in an amount according to proof at trial. THIRD CAUSE OF ACTION (Wrongful Termination in Violation of Public Policy) 27. Plaintiff repeats and realleges each of the allegations contained in paragraphs l through 26 and incorporates those allegations herein as though set forth in full. 28. Plaintiff is informed and believes and based thereon alleges, that she was constructively terminated from her employment solely as a consequence of the sexual harassment She was subjected to by defendant Alaeddin, Plaintiff’s refusal to engage in a romantic relationship with.Alaeddin.and Plaintiff’s insistence en_protecting her legal rights related to the harassing and discriminatory behavior of defendants Alaeddin and BBVA. 29. It is the public policy of California as expressed in FEHA and 9 10 H 12 14 15 16 17 I8 19 2O 2] 22 23 24 25 26 27 28 common law that employees may not be retaliated or discriminated against for enforcing or attempting to enforce the employment laws which are designed to protect employees from their employer. 30. As a direct andvproximate result of the Plaintiff’s termination by the defendants and each of them, in violation of public policy, Plaintiff has suffered economic damages relatedvto the loss of her health insurance, loss of wages and earning capacity and job opportunity and past emotional distress. The plaintiff is thereby entitled to general and compensatory damages in an amount to be determined according to proof at trial. 31. The Plaintiff is informed, believes and thereon.alleges that the outrageOus conduct of the defendants and each of them, as alleged herein, was done with malice, fraud and Oppression; with conscious disregard for her rights; and with the intent, design and purpose of injuring the Plaintiff. Defendants and each of them ratified the unlawal conduct of all the other defendants named in this action. By reason thereof, the Plaintiff is entitled to punitive damages from all defendants in an amount to be determined at trial. 32. The conduct Of all defendants was malicious and oppressive and done with a conscious disregard of the plaintiff’s rights. The acts of the defendants and each of them were performed with knowledge of an employers economic power over its employees. Defendants and each of them, through its officers and or supervisors, authorized condoned and ratified_the unlawful conduct of all other defendants. Consequently‘the Plaintiff is entitled.to punitive damages from all defendants. lO 12 13 14 16 17 18 19 20 21 22 23 24 25 26 27 28 FOURTH CAUSE OF ACTION (Breach of the Implied Covenant of Good Faith and Fair Dealing) 33. Plaintiff repeats and realleges each of the allegations contained in paragraphs 1 through 32 and incorporates those allegations herein, as though set forth in full. 34. On or about March 11, 2019, the defendants and each of them made oral and written representations to the Plaintiff as stated herein above, that among other things and in consideration for the Plaintiff accepting the job at BBVA Plaintiff could.expect to enjoy a long and profitable employment with the defendants and each of them. Additional terms of the agreement provided that Plaintiff’s employment would be secure as long as her performance was satisfactoryy that Plaintiff would not be impeded_in her performance or her career expectations, that Plaintiff would not be terminated without good cause and that Plaintiff would earn agreed upon wages and employment benefits. 35. Plaintiff undertook.and continued employment and_duly performed all Of the conditions of the employment agreement to be performed by her until prevented from further performance by defendants and each of them. Plaintiff had at all times been ready, willing and able to perform all of the conditions of the agreement to be performed by her. 36. Defendants and each Of thentbreachedvthe covenant of good faith and fair dealing by: allowing the plaintiff to be harassed and assaulted by Alaeddin, by‘constructively terminating the Plaintiff by subjecting her to a hostile work environment, by failing to ll TO T l2 13 14 15 17 18 l9 20 2} 22 23 2A 25 26 27 28 properly train and supervise Alaeddin by failing to investigate Alaeddin and.by failing to protect the Plaintiff and persons in the Plaintiff’s position. 37. Plaintiff performed all conditions precedent to defendant’s performance of their obligations under the contract. Plaintiff’s performance was at all times satisfactory or above satisfactory. 38. The law imposed duties on the defendants, in connection with the employment agreement, to act fairly and in good faith towards the Plaintiff. Defendants covenanted.to give full cooperatiotho the Plaintiff in her performance under the employment agreement and to refrain from any act which would prevent or impede any of the conditions of the employment agreement from being performed, which would deny the employment agreement or which would prevent the plaintiff from receiving the benefits of the employment agreement. 39. In or about August 2019 and throughout Plaintiff’g employment with the defendants, the defendants and each_of them, breached these duties imposed by law in connection with the employment agreement by subjecting the Plaintiff to sexual harassment, a hostile work environment and then.constructive1y'terminating the plaintiff on or about November 2S, 20l9. 40. At the time the parties entered into the covenant, as alleged herein above, it was known and understood, and within the reasonable contemplation of the parties, that in the event of a breach, the Plaintiff would suffer loss of earnings and economic damages. AS a direct and proximate result of the aforementioned conduct by all defendants, the Plaintiff has suffered damages in an amount to be 12 10 T l2 13 14 15 16 17 18 l9 2O 21 22 23 24 25 26 27 28 determined according to proof at trial. FIFTH CAUSE OF ACTION (Battery) 41. Plaintiff repeats and realleges the allegations contained in paragraphs 1 through 4O and incorporates those allegations herein as though set forth in full. 42. The acts Of the defendant Alaeddin as alleged herein above in which.A1aeddin touched the body’of the Plaintiff without permission or consent constitute Battery pursuant to Penal Code section 242/243. The physical contact between the Plaintiff and defendant Alaeddin, as alleged herein, was unwanted by Plaintiff, offensive to her and the direct result of the use of force and/or fear by the defendant Alaeddin. 43. The Plaintiff did not consent to the physical contact described herein and objected.to all physical contact and the overtures to her irom defendant Alaeddin. 44. The acts which constitute Battery and all other conduct as alleged herein, by defendant Alaeddin, occurred at the Sunnyvale BBVAVUSA bank, occurred during work hours and were within the course andvscope of the employment of defendant Alaeddin for defendant BBVA making BBVA vicariously liable for Alaeddin’s conduct. 45. As a direct and proximate result Of the acts of the defendants and each of them as alleged herein, the Plaintiff has suffered harm and past emotional distress to plaintiff’s detriment with special and general damages in excess of the jurisdictional minimum of this court. 46. The aforementioned conduct Of the defendants and each Of them 13 1O H 12 13 14 16 17 18 19 2O 2] 22 23 24 25 26 27 28 was despicable, willful, wanton, malicious and oppressive, thereby justifying an award of punitive and exemplary damages pursuant to Civil Code section 1708.5 and section 3294 in an amount to be determined according to proof. WHEREFORE, Plaintiff Kimberly Doe prays for judgment against defendants, and each of them, as follows: l. General Damages in an amount to be determined; 2. Special Damages in an amount to be determined; 3. A Civil Penalty of $25,000.00 pursuant to Civil Code 52(b); 4. For Punitive Damages, in an amount sufficient to punish the defendants and to deter Similar conduct; S. For attorney’s fees pursuant to Government Code section 12965(b) and Civil Code section 52(b); 6. For costs of suit incurred herein; 7. For pre-judgment interest; 8. Such further relief as the court deems just and proper. FARLING, HECHT & DAVIS, LLP ../ ' 'i“ {,r’ 7/, , ax < 1/7. 7 _ 7 \ Dated: June 30! 202i By: »fi” Todd K. Davis Attorney for plaintiff Kimberly Doe 14 wuamn. KO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Doe v. BBVA USA, et al. Santa Clara County Case No.: 20CV373869 PROOF OF SERVICE BY ELECTRONIC MAIL (E-MAIE.) ONLY | am a citizen of the United States. My business address is 98 North Third Street, Suite 660, San Jose, CA 951 12. | am emp¥oyed in the County 0f Santa Clara, where this mailing occurs. | am over the age of 18 years, and not a party to the within cause. My electronic service address is: maryben@fhdl|p.com. I electronically served today the attached document(s) described as: NOTICE OF MOTION FOR LEAVE TO FILE A FIRST AMENDED COMPLAINT to the following addresses: BBVA USA Mahmoud Aiaeddin Joseph R. Lordan, Esquire David M. Marchiano, Esquire Allison L. Shraliow, Esquire Brown, Gee & Wenger LLP Lewis Brisbois Bisgaard & Smith LLP Two Walnut Creek Center #400 333 Bush Street #1100 Walnut Creek CA 94596 San Francisco CA 941042872 925-943-5000 41 5-362-2580 C - 925-708-7042 Fax: 415434-0882 dmarchiano@bgwcounsel.com joseph.lordan@lewisbrisbois.com tpico@bgwcounsel.com allison.shrallow@lewisbrisbois.com joseph.appel@lewisbrisbois.com Berenice.Barragan@iewisbrisbois.com SERVICE BY ELECTRONIC TRANSMISSION ONLY: Service has been performed by e-mailing the document(s) to the persons at the e-mail addresses listed above, During the Coronavirus (Covid-fig) pandemic} this office may be using electronic mail for service of documents. No electronic message 0r other indication that the transmission was unsuccessful was received within a reasonable time after the transmission. | declare under penalty of perjury under the laws of the State of California that the foregoing Es true and correct. Executed 0n July 2, 2021, at San Jose, Caiifornia‘ Maryfién‘ Siév’e’r fi PROOF OF SERVICE