Memorandum Points and Authorities

Cal. Super. - 6th Dist.November 23, 2020

DocuSign Envelope ID: BF1 DE984-1 C2A-4F98-AD2A-3A8QBA13DCB4 \OOOflQUl-bUJNr-A NNNNNNNNNHHHr-tr-Kr-tr-tr-tr-tr-t OOQOUl-RUJNh-‘OKOOOQONUI-hUJNHO 20CV373940 Santa Clara - Civil Howard L. Magee (State Bar N0. 185 199) Larry W. Lee (State Bar N0. 228175) Max W. Gavron (State Bar N0. 291697) DIVERSITY LAW GROUP, A Professional Corporation 515 South Figueroa Street, Suite 1250 Los Angeles, California 90071 (213) 488-6555 (213) 488-6554 facsimile Robert Starr (State Bar No. 183052) Theodore Tang (State Bar N0. 3 13294) Manny Starr (State Bar N0. 3 19778) FRONTIER LAW CENTER 23901 Calabasas Road, Suite 2074 Calabasas, California 91302 T: (818) 914-3433 F: (818) 914-3433 Attorneys for Plaintiff J DOE Electronically Filed by Superior Court of CA, County of Santa Clara, on 12/1 6/2020 5:00 PM Reviewed By: R. Burciaga Case #20CV373940 Envelope: 5487084 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA J DOE, as an individual, Plaintiff, vs. ROKU, INC., a Delaware corporation; LONG-JI LIN, an individual, and DOES 1 through 50, inclusive, Defendants. 1 Case N0. 20CV373940 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION Date: December 18, 2020 Time: 8:30 am Dept: 19 Complaint Filed: November 23, 2020 Trial Date: None Set MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAING ORDER AND PRELIMINARY INJUNCTION . Burciaga DocuSign Envelope ID: BF1 DE984-1 C2A-4F98-AD2A-3A8QBA13DCB4 \OOOflQUl-bUJNr-A NNNNNNNNNHHHr-tr-Kr-tr-tr-tr-tr-t OOQOUl-RUJNh-‘OKOOOQONUI-hUJNHO I. INTRODUCTION This is a FEHA action alleging that Defendants discriminated against Plaintiff, a respected professional in the computer science community, 0n the basis 0f a mental disability. Specifically, this case involves allegations that Defendants knowingly and willfully violated Plaintiff” s rights by feigning ignorance 0f Plaintiff” s condition, despite verifying and acknowledging Plaintiff” s condition prior to terminating Plaintiff. Despite Plaintiff’s counsel’s best efforts t0 meet and confer With Defendant Roku, Inc. t0 ensure Plaintiffmay vindicate Plaintiff” s rights Without being subjected to further ridicule by publicly disclosing details about Plaintiff” s medical and mental health history, Defendant Roku, Inc. has indicated that they are unwilling t0 stipulate t0 Plaintiff” s use of a pseudonym, and indicated that they would oppose any attempt by Plaintiff to d0 s0. In the same communication, Defendant Roku Inc. indicated that they would “consider a proposal regarding an appropriate protective order” only after reviewing a file endorsed complaint - in effect demanding the right t0 file a responsive pleading that may reveal Plaintiff” s identity before they would consider an agreement not t0 do so. Plaintiff seeks a Preliminary Injunction as prayed for in the Complaint, restraining and enjoining Defendants, Roku, Inc. and Long-Ji Lin (collectively “Defendants”), from engaging in the following conduct for the remainder of this litigation: 1. Identifying Plaintiff s true name or referring to Plaintiffby any name other than “J Doe” in these Court proceedings and/or in any document filed with the court, unless filed under seal; 2. Making any statement t0 the media, 0r any person other than Defendants, Defendants’ directors, Defendants’ officers, Defendants’ counsel, Plaintiff, 0r Plaintiff’s Counsel that identifies Plaintiff as the individual bringing this lawsuit unless such disclosure is necessary to litigate the action, and then only if such individual agrees in writing to be bound by the same order. Pending a hearing on a Preliminary Injunction, Plaintiff hereby applies for, and submits that the interests ofjustice require that, a Temporary Restraining Order issue restraining and enjoining Defendants from engaging in the aforesaid conduct 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAING ORDER AND PRELIMINARY INJUNCTION DocuSign Envelope ID: BF1 DE984-1 C2A-4F98-AD2A-3A8QBA13DCB4 \OOOflQUl-bUJNr-A NNNNNNNNNHHHr-tr-Kr-tr-tr-tr-tr-t OOQOUl-RUJNh-‘OKOOOQONUI-hUJNHO As stated in the Declaration ofManny Starr filed herewith and incorporated herein, absent said Temporary Restraining Order, Plaintiff will suffer great and immediate irreparable harm in that Defendants can, and based 0n the statements of Roku Inc.’s counsel likely Will, publicly expose Plaintiff’s identity. Such a disclosure in the context 0f a lawsuit regarding the sensitive issue 0f Plaintiff” s mental health condition and medical history would be an incurable Violation 0f Plaintiff” s privacy and make it increasingly difficult for Plaintiff t0 find employment in Plaintiff” s field - a situation Plaintiff is only in due to the wrongful termination being alleged in this case. Further, Defendant Roku Inc. has put Plaintiff in an untenable position. Given Defendant Roku, Inc.’s threats t0 publicly expose Plaintiff’s identity, Plaintiff is understandably fearful that any notice provided t0 them would result in a publicly filed response outing Plaintiff” s identity. Given that defendant Long-Ji Lin is a Roku Inc. employee and Plaintiff’s former immediate supervisor, any notice provided t0 him is almost certain t0 be forwarded t0 Defendant Roku, Inc., mfiwflbfikmMmMflflwmmmthH&Mflmmflkmbmmgfifikammme Temporary Restraining Order be granted without notice t0 Defendants, such that they are restrained from revealing Plaintiff” s identity in their very opposition to Plaintiff s application t0 keep Plaintiff” s identity confidential. II. A TEMPORARY RESTRAINING ORDER MAY ISSUE WHERE GREAT AND IRREPARABLE INJURY WILL RESULT TO THE APPLICANT UNLESS THE OFFENDING CONDUCT IS IMMEDIATELY RESTRAINED A TRO may issue when ‘[i]t appears from the facts shown by affidavit 0r by the verified complaint [0r cross-complaint] that great 0r irreparable injury Will result to the applicant before the matter can be heard 0n notice. . .” (Code CiV. Proc. § 527(c)(1).) The Court should evaluate two interrelated factors When deciding whether or not t0 issue a temporary restraining order. The first is the likelihood that the plaintiff or cross-complainant will prevail on the merits at trial. The second is the interim harm that the plaintiff is likely to sustain if Hmmmmmgm®flmmm¢wammmdmmflmmmmmthmmhthmmflflfime order is issued. Church ofChrist in Hollywood v. Superior Court, (2nd Dist. 2002) 99 Ca1.App.4th 1244, 1251. 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAING ORDER AND PRELIMINARY INJUNCTION DocuSign Envelope ID: BF1 DE984-1 C2A-4F98-AD2A-3A8QBA13DCB4 \OOOflQUl-bUJNr-A NNNNNNNNNHHHr-tr-Kr-tr-tr-tr-tr-t OOQOUl-RUJNh-‘OKOOOQONUI-hUJNHO A TRO is distinguishable from a preliminary injunction in the following respects: It may be issued eX part6; a bond, though commonly required, is not essential; and it is of short duration, normally expiring at the time of the hearing on the preliminary injunction. Chico Feminist Women ’s Health Center v. Scully, (3rd Dist. 1989) 208 Cal.App.3d 230, 237. As stated in the Declaration 0fManny Starr, if Defendants are not immediately restrained and enjoined from engaging in the aforesaid conduct, Plaintiff Will suffer great and immediate irreparable harm in that Plaintiff is a respected professional in the computer science industry. The divulgence of Plaintiff’s mental disability and confidential medical records would cause harm to Plaintiff’s reputation and respect in the scientific community. The Violation 0f Plaintiff s privacy will cause economic harm t0 Plaintiff in that it will make it increasingly more difficult, if not impossible, to obtain employment in Plaintiff’s field. Furthermore, the disclosure of facts relating to Plaintiff’s mental disability is likely t0 subj ect Plaintiff t0 further discrimination 0n the basis 0f disability - the same type 0f discrimination Which Plaintiff suffered in this very case. On the other hand, the Defendants are not likely t0 suffer any damages by reason 0f granting the TRO; any argument that can be made against Plaintiff in Plaintiff” s true name can be made just as easily under a pseudonym, and in the unlikely event Defendants would have a need to identify Plaintiffby name, the option of filing under seal would still remain available. As further stated in the Declaration 0fManny Starr, there is a high likelihood that Plaintiff will prevail 0n the merits at trial, in that documented communications between Plaintiff and Defendant Roku Inc. ’s HR department demonstrate that the stated reason for Plaintiff” s termination is false and that Defendant Roku, Inc. was aware 0f, and had actually approved, Plaintiff’s request for medical leave due t0 Plaintiff” s disability. Further, there are documented communications between Plaintiff and Defendant Long-Ji Lin that demonstrate that Lin was aware 0f Plaintiff” s work restrictions, encouraged and expected Plaintiff t0 ignore them, and berated Plaintiff, creating a hostile work environment, when Plaintiff did not do so. For the above reasons, a Temporary Restraining Order should be immediately issued to prevent further harm to Plaintiff as alleged and as set forth in the declarations. /// 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAING ORDER AND PRELIMINARY INJUNCTION DocuSign Envelope ID: BF1 DE984-1 C2A-4F98-AD2A-3A8QBA13DCB4 \OOOflQUl-bUJNr-A NNNNNNNNNHHHr-tr-Kr-tr-tr-tr-tr-t OOQOUl-RUJNh-‘OKOOOQONUI-hUJNHO III. AN ORDER TO SHOW CAUSE RE PRELIMINARY INJUNCTION SHOULD ALSO ISSUE As Defendants have not yet appeared in this action, an Order t0 Show Cause is the proper procedure. A party requesting a preliminary injunction may give notice 0f the request to the opposing 0r responding party either by serving a noticed motion under Code 0f Civil Procedure section 1005 or by obtaining and serving an order t0 show cause (”OSC”). An OSC must be used when a temporary restraining order (”TRO”) is sought, or if the party against Whom the preliminary injunction is sought has not appeared in the action. If the responding party has not appeared, the OSC must be served in the same manner as a summons and complaint. Cal. Rules of Court, rule 3.1 150(a). If the action is initiated the same day a TRO 0r an OSC is sought, the complaint must be filed first. The moving party must provide a file- stamped copy 0f the complaint t0 the judge who will hear the application. If an application is made in an existing case, the moving party must request that the court file be made available t0 the judge hearing the application Cal. Rules of Court, rule 3.1 150(b). In the instant case, Plaintiff has just filed the Complaint in this matter, and Will lodge a file- stamped copy contemporaneously With this application or as soon thereafter as possible. Plaintiff requests that the instant TRO be issued based on the evidence presented by the Declaration of Manny Starr submitted With this application. Plaintiff further requests a full hearing on a Preliminary Injunction for the same reasons and under the same authorities as set forth herein, and requests that an Order t0 Show Cause be issued along with the TRO to afford Defendants the opportunity to show why they should not be restrained and enjoined in the same manner for the remainder 0f this litigation. Under Code 0f Civil Procedure section 526 subdivision (a), a Preliminary Injunction is proper in the following circumstances: (1) When it appears by the complaint that the plaintiff is entitled to the relief 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAING ORDER AND PRELIMINARY INJUNCTION DocuSign Envelope ID: BF1 DE984-1 C2A-4F98-AD2A-3A8QBA13DCB4 \OOOflQUl-bUJNr-A NNNNNNNNNHHHr-tr-Kr-tr-tr-tr-tr-t OOQOUl-RUJNh-‘OKOOOQONUI-hUJNHO demanded, and such relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually. (2) When it appears by the complaint 0r affidavits that the commission 0r continuance 0f some act during the litigation would produce waste, 0r great 0r irreparable injury, t0 a party to the action. (3) When it appears, during the litigation, that a party t0 the action is doing, or threatens, or is about t0 do, 0r is procuring 0r suffering to be done, some act in Violation 0f the rights 0f another party t0 the action respecting the subj ect of the action, and tending t0 render the judgment ineffectual. (4) When pecuniary compensation would not afford adequate relief. (5) Where it would be extremely difficult t0 ascertain the amount 0f compensation Which would afford adequate relief. Code Civ. Proc. § 526 subd. (a). “A preliminary injunction may be granted at any time before judgment ... upon affidavit if the affidavits show satisfactorily that sufficient grounds exist therefore. No preliminary injunction shall be granted without notice t0 the opposing party.” Code Civ. Proc § 527 (a). To obtain a preliminary injunction, the Plaintiff must establish that the defendant should be restrained from the challenged activity pending trial. Trader Joe ’s C0. v. Progressive Campaigns, (lst Dist. 1999) 73 Cal.App.4th 425, 429. As with a Temporary Restraining Order, the Court weighs two interrelated factors; the likelihood the moving party will prevail on the merits, and the relative interim harm to the parties from the issuance 0r nonissuance of the injunction. Whyte v. Schlage Lock C0., (4th Dist. 2002) 101 Cal.App.4th 1443, 1449. As shown in the Declaration submitted herewith, sufficient grounds exist, and Will be shown t0 exist, at the hearing 0n a preliminary injunction such that the Court should issue one upon the same grounds and facts as alleged herein Which support the issuance 0f a Temporary Restraining Order. /// /// 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAING ORDER AND PRELIMINARY INJUNCTION DocuSign Envelope ID: BF1 DE984-1 C2A-4F98-AD2A-3A8QBA13DCB4 \OOOflQUl-bUJNr-A NNNNNNNNNHHHr-tr-Kr-tr-tr-tr-tr-t OOQOUl-RUJNh-‘OKOOOQONUI-hUJNHO IV. EX PARTE RELIEF IS PERMITED UNDER THESE CIRCUMSTANCES AND PLAINTIFF HAS COMPLIED WITH CALIFORNIA RULES OF COURT A. Showing Required for EX Parte Relief Cal Rules 0f Court, Rule 3.1 150 provides that “[a]pplications for ex parte temporary restraining orders are governed by the ex parte rules in chapter 4 0f this division.” Those rules in turn state “[a]n applicant must make an affirmative factual showing in a declaration containing competent testimony based 0n personal knowledge of irreparable harm, immediate danger, 0r any other statutory basis for granting relief ex part6.” Cal. Rules 0f Court, rule 3. 1202(0). As shown by the attached Declaration 0fManny Starr, there is an imminent and present danger of irreparable harm and immediate danger, in that Defendants can, and based 0n the statements 0f Defendant Roku, Inc.’s counsel likely will, publicly expose Plaintiff’s identity, which coupled with the lawsuit will disclose Plaintiff s confidential mental health and medical history, causing Plaintiff to suffer from the loss of privacy, injuring Plaintiff’s prospects 0f obtaining new employment t0 mitigate damages, and likely cause Plaintiff to suffer further discrimination 0n the basis 0f Plaintiff’s mental disability. B. Document And Notice Requirements For EX Parte Application For TRO and OSC An EX parte application for an order must be accompanied by an affidavit 0r declaration showing. .. [proper notice was made 0r attempted. . . ; 0r (3) that, for reasons specified, the applicant should not be required t0 inform the opposing party.” As stated in the declaration 0fManny Starr, Plaintiff’s counsel has met and conferred with counsel for Defendant Roku, Inc., in an attempt t0 gain assurances that they would not expose Plaintiff s identity publicly, since the details 0f Plaintiff” s diagnosis and medical condition are critical for stating a claim for the relief sought. Roku Inc. has not only refused t0 stipulate t0 keeping Plaintiff’s name off the record (and indeed, have threatened t0 challenge any attempt to do so), but they have also indicated that they would not even consider a stipulated protective order without first seeing a file-stamped complaint. The entire thrust 0f this request is t0 prevent Defendants from forcing Plaintiff t0 choose between preserving Plaintiff” s personal, medical, and mental health privacy and Vindicating Plaintiff” s rights t0 be free 0f discrimination 0n the basis 0f those conditions Which Plaintiff rightly 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAING ORDER AND PRELIMINARY INJUNCTION DocuSign Envelope ID: BF1 DE984-1 CZA-4F98-AD2A-3A893A1 3DCB4 \OmflQLh-PUJNH NNNNNNNNNr-tr-IHHr-tr-tr-tr-Ib-Ib-t OOQONU‘I-PUJNHOWOONQM#WNHO may keep private. If a file-stamped copy 0f the Complaint were given to Defendants, they would be free to out Plaintiff in an answer or demurrer before even considering stipulating t0 a belated protective order. At the very least, Defendants must be restrained from revealing Plaintiff s identity until the Court has had an opportunity to hear both sides of the argument at an Order to Show Cause hearing. To d0 otherwise invites the very harm that Plaintiff seeks to avoid with this application. As described in more detail in the Declaration 0fManny Starr, Defendant Roku, Inc. was given notice 0f this hearing 0n [date] at [time] by [method]. (Decl. Starr at 1110.) Defendant Long- Ji Lin [was given notice by / could not be reached despite] [method] 0n [date] at [time]. (Decl. Starr at 111 1.) V. CONCLUSION For all the foregoing reasons and supporting facts and authorities, it is respectfully requested that the Court issue a Temporary Restraining Order (Proposed Order submitted herewith), and set an Order t0 Show Cause hearing for Preliminary Injunction consistent with this Application (Proposed Order t0 Show Cause also submitted herewith.) Dated: December l6, 2020 DIVERSITY LAW GROUP, P.C. FRONTIER LAW CENTER DocuSigned by: By:¥ 333335157Magee Manny Starr Attorneys for Plaintiff J DOE 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR TEMPORARY RESTRAING ORDER AND PRELIMINARY INJUNCTION