Opposition ObjectionsCal. Super. - 6th Dist.November 23, 2020KOOONONUILUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO 200V37394O Santa Clara - Civil Howard L. Magee (State Bar N0. 185 1 99) Larry W. Lee (State Bar N0. 228175) Max W. Gavron (State Bar N0. 291697) DIVERSITY LAW GROUP, A Professional Corporation 5 15 South Figueroa Street, Suite 1250 Los Angeles, California 90071 (213) 488-6555 (213) 488-6554 facsimile Robert Starr (State Bar N0. 183052) Theodore Tang (State Bar N0. 313294) Manny Starr (State Bar N0. 3 1 9778) Frontier Law Center 23901 Calabasas Road, Suite 2074 Calabasas, California 9 1 302 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 8/11/2021 12:39 PM Reviewed By: L. Nguyen Case #20CV373940 Envelope: 7040761 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, and DOES 1 through 50, inclusive, Defendants. 1 Case N0. 20CV373940 PLAINTIFF J DOE’S OPPOSITION TO DEFENDANT LONG-JI LIN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Date: August 24, 2021 Time: 9:00 am. Dept: 2 Complaint Filed: November 23, 2020 FAC Filed: March 25, 2021 Trial Date: None Set PLAINTIFF J DOE’S OPPOSITION TO DEFENDANT LONG-JI LIN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT KOOONONUILUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO I. INTRODUCTION Plaintiff J DOE (“Plaintiff”) opposes Defendant Long-Ji Lin’s (“ML Lin”) Demurrer because Plaintiff alleges sufficient facts t0 state a claim for Intentional Infliction of Emotional Distress (“HED”) against Mr. Lin. Mr. Lin contends the Court should dismiss Plaintiff” s claim for HED for two reasons: (1) Plaintiffs allegations d0 not meet the threshold required 0f an HED claim because Mr. Lin’s actions were mere “personnel decisions;” and (2) Plaintiffs HED claim is barred by the allegedly exclusive remedy 0f the California Workers’ Compensation system. Plaintiff contends that Mr. Lin, who was Plaintiff” s direct supervisor, “knowingly and intentionally forced Plaintiff to work well in excess 0f 20 hours and demanded that Plaintiff produce new designs, circulate documentation 0f Plaintiffs plans, keep in continuous communication with colleagues, attend team meetings, and generally be available at the drop 0f a hat.” First Amended Complaint (“FAC”) 11 17. Mr. Lin did this while knowing that Plaintiffs physician restricted Plaintiff’s work hours t0 n0 more than 20 per week because 0f a disability. Id. Mr. Lin characterizes these allegations as “personnel management decisions.” Demurrer at 5-6. However, Plaintiff” s allegations d0 not support a management decision made in the normal course of an employment relationship. Plaintiff contends, and the Court must accept as true, that Mr. Lin “created a hostile work environment for the sole purpose 0f trying t0 further break Plaintiff down emotionally.” FAC 11 17. This allegation distinguishes Plaintiffs claim from the facts addressed by the court in Janken v. GMHughes Electronics, 46 Cal. App. 4th 55 (1996), and relied on by Mr. Lin in his Demurrer, because the Janken court’s holding addressed typical management decisions relating t0 compensation, layoffs, and staffing. Janken, 46 Cal. App. 4th at 79. Mr. Lin also contends that Plaintiffs claim for HED is barred because it is preempted by the California Workers’ Compensation Act. The California Court 0f Appeal has held that a plaintiff” s claim under the Fair Employment Housing Act (“FEHA”), such as Plaintiff” s here, is not barred by the Workers’ Compensation Act because it “falls outside the compensation bargain and therefore claims of intentional infliction 0f emotional distress based 0n such discrimination and retaliation are not subject t0 workers' compensation exclusivity.” Light v. Dep’t ofParks & Recreation, 14 Cal. App. 5th 75, 101 (2017). Plaintiff alleges several claims under the FEHA and thus the Court should 2 PLAINTIFF J DOE’S OPPOSITION TO DEFENDANT LONG-JI LIN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT KOOONONUILUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO overrule Mr. Lin’s Demurrer 0n these grounds, too. If the Court is inclined to grant Mr. Lin’s Demurrer, Plaintiff requests leave t0 amend t0 allege additional facts supporting Plaintiff’s claims. Cal. Cas. Gen. Ins. C0. v. Superior Court, 173 Cal. App. 3d. 274, 278 (1985) (holding abuse 0f discretion not t0 allow amendment 0f complaint). II. PLAINTIFF’S COMPLAINT EASILY MEETS CALIFORNIA’S LIBERAL PLEADING STANDARDS A. Factual Background Mr. Lin generally recounts the facts related t0 him at issue in his Demurrer. For the sake 0f brevity, Plaintiff does not repeat the same allegations at length here. However, the allegations relating t0 Mr. Lin specifically must be read in the context 0f Plaintiffs allegations as a whole. The Parties dispute the characterization 0f the relevant factual allegations and Plaintiff details those allegations that bear repeating. Plaintiff suffered from Schizoaffective Disorder, Bipolar Type, which resulted in a leave 0f absence from employment with Defendants from approximately March 10, 2020, through April 6, 2020. FAC 1W 13-14. Because 0f Plaintiff” s disability, Plaintiff” s physician placed Plaintiff 0n a restricted and modified work schedule. FAC 11 15 . Plaintiffwas limited to working no more than 4 hours per workday, 0r 20 hours per week. Id. If Plaintiffs employer could not accommodate this modification, then Plaintiff” s physician opined that Plaintiffwould be considered totally disabled and should not work. Id. Mr. Lin used his position as Plaintiffs direct supervisor t0 Violate Plaintiffs physician’s directives and cause Plaintiff severe emotional distress. FAC 1W 17, 19. Mr. Lin knew of Plaintiffs condition as evidenced by the fact that he “reported t0 Roku that Plaintiff would occasionally become unresponsive 0r absent without explanation.” FAC 11 29. On another occasion, “Roku security reported that they were concerned with Plaintiffs mental state due t0 Plaintiff arriving at the Company in the middle 0f the night asking t0 sleep there because Plaintiff did not feel safe in Plaintiff” s home.” Id. Yet, Mr. Lin continued t0 “create[] a hostile work environment for the sole purpose 0f trying t0 further break Plaintiff down emotionally.” FAC 11 17. The power dynamic between Plaintiff and 3 PLAINTIFF J DOE’S OPPOSITION TO DEFENDANT LONG-JI LIN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT KOOONONUILUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO Mr. Lin increased the harm Plaintiff suffered and took Mr. Lin’s conduct out 0f the realm 0f human decency. FAC 1W 17, 19. Mr. Lin’s and Defendant Roku, Inc.’s conduct pushed Plaintiff t0 take a second leave 0f absence because 0f Plaintiff’s mental condition. FAC 11 20. Ultimately, Roku, Inc. terminated Plaintiff” s employment for alleged job abandonment while Plaintiff was out 0n a protected leave because 0f Plaintiffs disability and hospitalization. FACfl 22-25. After being released from the hospital, Plaintiff informed Defendant Roku’s Human Resources representative that Plaintiff had been hospitalized. Plaintiff requested reinstatement several times due t0 the extenuating circumstance 0f Plaintiff” s hospitalization, but Defendant Roku, Inc. callously denied Plaintiff” s request for reinstatement, further ratifying Defendant’s unlawful conduct. FAC 11 26. B. Legal Standard The fundamental concern 0f the Court should be whether “the complaint as a whole contain[s] sufficient facts t0 apprise the defendant 0f the basis upon which the plaintiff is seeking relief” so that even conclusory allegations are sufficient when read in context with the facts describing the defendant’s wrongful conduct.” Perkins v. Superior Court, 117 Cal. App. 3d 1, 6-7 (1981); Clauson v. Superior Court, 67 Cal. App. 4th 1253, 1255 (1998). Demurrers are disfavored and, consistent with the liberal policy 0f amendments 0f pleadings, if the defect is correctable, the amended pleading should be allowed. Vaccaro v. Kaiman, 63 Cal. App. 4th 761, 768-69 (1998). Section 452 mandates that a pleading is t0 be liberally construed for purposes 0f determining its effect, “with a View t0 substantial justice between the parties.” Where the defect raised by a demurrer is reasonably capable 0f cure, “leave t0 amend is routinely and liberally granted t0 give the plaintiff a chance t0 cure the defect in question.” Price v. Dames & Moore, 92 Cal. App. 4th 355, 360 (2001); Grieves v. Superior Court, 157 Cal. App. 3d 159, 168 (1984). As explained by the Court 0f Appeal in CLD C0nst., Inc. v. City ofSan Ramon, 120 Cal. App. 4th 1141, 1146-47 (2004), “[a] pleading may be stricken only upon terms the court deems proper, that is, terms that are just. It is generally an abuse 0f discretion t0 deny leave t0 amend, because the drastic step 0f denial 0f the opportunity t0 correct the curable defect effectively 4 PLAINTIFF J DOE’S OPPOSITION TO DEFENDANT LONG-JI LIN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT KOOONONUILUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO terminates the pleader's action.” Id. (Emphasis added, citations omitted). C. Plaintiff Alleges a Claim for IIED The elements 0f the tort 0f intentional infliction 0f emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention 0f causing, 0r reckless disregard 0f the probability 0f causing, emotional distress; (2) the plaintiffs suffering severe 0r extreme emotional distress; and (3) actual and proximate causation 0f the emotional distress by the defendant's outrageous conduct. Christensen v. Superior Court, 54 Cal. 3d 868, 903 (1991). Mr. Lin focuses much of his argument 0n the nature 0f his conduct. An employer’s discriminatory actions may constitute outrageous conduct under an intentional infliction 0f emotional distress theory. See Rojo v. Kliger, 52 Cal. 3d 65, 81 (1990); Barefield v. Bd. ofTrusteeS 0fCal. State Univ, Bakersfield, 500 F. Supp. 2d 1244, 1276 (ED. Cal. 2007). In Alcom v. Anbro Eng’g, Ina, 2 Cal. 3d 493, 498-99 (1970), the California Supreme Court addressed the allegations necessary t0 survive a demurrer 0n a claim 0f HED, and explained: according t0 plaintiff, defendants, standing in a position 0r relation 0f authority over plaintiff, aware 0f his particular susceptibility t0 emotional distress, and for the purpose 0f causing plaintiff t0 suffer such distress, intentionally humiliated plaintiff, insulted his race, ignored his union status, and terminated his employment, all without just cause 0r provocation. Although it may be that mere insulting language, without more, ordinarily would not constitute extreme outrage, the aggravated circumstances alleged by plaintiff seem sufficient t0 uphold his complaint as against defendants' general demurrer. ‘Where reasonable men may differ, it is for the jury, subj ect t0 the control 0f the court, t0 determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous t0 result in liability.’ Id.; see also Fretland v. Cty. OfHumboldt, 69 Cal. App. 4th 1478, 1492 (1999) (noting that “work- related injury discrimination is not a normal risk 0f the compensation bargain”). The California Court 0f Appeal also explained that, “[w]hether. . .alleged behavior is sufficiently extreme as t0 constitute ‘outrageous’ behavior is properly determined by thefactfinder after trial orpossibly after discovery upon a motion for summary judgment.” Angie M. v. Superior Court, 37 Cal. App. 4th 1217, 1226 (1995) (emphasis added); Burnett v. Chimney Sweep, 123 Cal. App. 4th 1057, 1067 (2004); (“Whether conduct constitutes active 0r passive negligence depends upon the circumstances 0f a given case and is ordinarily a question for the trier 0f fact”). In accordance with these well-established authoritiess courts have held that it is error t0 sustain a PLAINTIFF J DOE’S OPPOSITION TO DEFENDANT LONG-JI LIN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT KOOONONUILUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO demurrer against a claim for intentional infliction 0f emotional distress based 0n the “extreme and outrageous” element. See, e.g., Erlach v. Sierra Asset Servicing, LLC, 226 Cal. App. 4th 1281, 1299 (2014) (in non-employment case, reversing the sustaining 0f the defendant’s demurrer without leave t0 amend, Court 0fAppeal held that whether the complaint states a cause 0f action for intentional infliction 0f emotional distress “presents a factual question” which could not be resolved by demurrer). Here, Plaintiff alleges facts that support Mr. Lin’s direct and intentional acts causing Plaintiff severe emotional distress. FAC 1W 17, 19 (alleging acts were done for the sole purpose 0f causing emotional distress). Mr. Lin’s actions were outside the scope 0f the employment relationship because they were done with the explicit knowledge 0f Plaintiffs mental condition and with the purpose 0f causing Plaintiff mental harm-not improving performance or any other management-type decision. See id. Mr. Lin relies 0n Janekn v. GMHughes Elecs., 46 Cal. App. 4th 55, 80 (1996) t0 argue that Plaintiff” s HED claim should fail “even if improper motivation is alleged.” Plaintiff alleges, however, more than improper motivation. Plaintiff alleges that the sole purpose 0f the actions 0f Plaintiff” s direct supervisor was t0 “create[] a hostile work environment for the sole purpose 0f trying to further break Plaintiff down emotionally.” FAC 11 17. N0 reasonable person could interpret this allegation as falling within the realm 0f normal management decisions. The facts before the court in Janken are also readily distinguishable. There, the court considered allegations that the defendants collectively 0r individually downgraded 0r altered plaintiffs' performance appraisals; demoted, terminated 0r laid off plaintiffs; failed t0 promote or failed to transfer plaintiffs; failed t0 provide plaintiffs with salaries commensurate with their qualifications, experience and responsibilities; placed a “cap” 0n salaries 0f long-term employees such as plaintiffs; sent plaintiffs “at risk” notifications warning of possibly impending layoffs, 0r at other times failed t0 send “at risk” notifications warning 0f possibly impending layoffs; failed to provide plaintiffs with work assignments; failed t0 provide plaintiffs with sufficient clerical 0r secretarial support; failed t0 respond t0 correspondence sent by plaintiffs t0 “senior Hughes :9. ccmanagement , accused” one plaintiff 0f not properly maintaining a time card; and similar claims. 6 PLAINTIFF J DOE’S OPPOSITION TO DEFENDANT LONG-JI LIN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT KOOONONUILUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO Janken, 46 Cal. App. 4th at 79. Thus, the decisions at issue were typical management decisions related t0 the compensation 0f employees, their continued employment, and the general obligations 0f the job. Plaintiff here alleges that Mr. Lin acted in a way t0 “break Plaintiff down emotionally.” FACfl 17, 19. Accordingly, whether these allegations constitute extreme and outrageous conduct such that Plaintiff will prevail on Plaintiff” s claim for HED is a question that should be reserved for the jury. Finally, Mr. Lin’s claim that the “management personnel actions are not extreme and outrageous conduct as a matter 0f law” is belied by his own logic. After articulating the reasons he believes that his actions d0 not rise t0 the level 0f “extreme and outrageous conduct,” he later concedes that Plaintiff s claim against Defendant Roku, Inc. will continue even if the claim against Mr. Lin is dismissed. Compare Demurrer at 5, Section IV.A.1.a. with Demurrer at 8, Section IVA. 1 .c. As explained above, Plaintiffs allegations must be read in context and Mr. Lin’s agreement that Plaintiffs allegations rise t0 the level 0f extreme and outrageous conduct for one defendant but not the other supports Plaintiffs position. See Perkins, 117 Cal. App. 3d at 6-7 (explaining that allegations must be read in context). Accordingly, Plaintiff alleges sufficient facts t0 state a claim 0f HED against Mr. Lin and the Court should overrule his Demurrer. D. Workers’ Compensation Does Not Bar Plaintiff’s Claim In 2017, the California Court 0fAppeal held that “unlawful discrimination and retaliation in Violation 0fFEHA falls outside the compensation bargain and therefore claims 0f intentional infliction 0f emotional distress based 0n such discrimination and retaliation are not subj ect t0 workers' compensation exclusivity.” Light v. Dep’t ofParks & Recreation, 14 Cal. App. 5th 75, 101 (2017). Defendant cites several cases that predate the Court 0f Appeal’s holding in Light in support 0f its argument that Plaintiff s HED claim against Mr. Lin is barred by the workers’ compensation remedy. However, the Light court explained that the only controlling authority as it relates t0 the exclusive remedy issue from the California Supreme Court is articulated in Miklosy v. Regents 0fthe Univ. 0fCal., 44 Cal. 4th 876, 902-03 (2008). In Miklosy, the California Supreme Court addressed whether a whistleblower claim could give rise t0 the plaintiffs cause 0f action for HED. See id. at 902. In Light, the Court 0f Appeal 7 PLAINTIFF J DOE’S OPPOSITION TO DEFENDANT LONG-JI LIN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT KOOONONUILUJNH NNNNwwwwwb-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-Ab-A OONONMJ>UJNHOKOOONONMJ§WNHO distinguished Miklosy because the Violation asserted by the plaintiff there was premised 0n the FEHA. Light, 14 Cal. App. 5th at 101 (“While the Supreme Court in Miklosy held that allegations 0f whistleblower retaliation were insufficient t0 state an exception t0 workers' compensation exclusivity, it did not remove the jurisprudential basis 0n which numerous authorities have held that allegations ofFEHA discrimination and retaliation did state such an exception”). Other courts 0f appeal have held similarly. Nazir v. United Airlines, Ina, 178 Cal. App. 4th 243, 288 (2009) (reversing summary judgment 0n HED claim where plaintiff also alleged discrimination and harassment under the FEHA); MF. v. Pac. Pearl Hotel Mgmt. LLC, 16 Cal. App. 5th 693, 700 (2017) (“C0nsequently, if the complaint states Viable claims against Pacific under the FEHA, the workers' compensation exclusivity doctrine presents n0 bar t0 M.F.'s claims, and the complaint is not subj ect t0 a general demurrer 0n this ground”). Here, where Plaintiff alleges Plaintiffs claim for HED in conjunction with claims under the FEHA, the same reasoning applies and the Court should overrule Mr. Lin’s Demurrer 0n this ground. III. THE COURT SHOULD GRANT LEAVE TO AMEND, IF INCLINED TO GRANT DEFENDANT’S DEMURRER If the Court is inclined to grant Mr. Lin’s Demurrer, Plaintiff should be allowed t0 amend. As explained by the Court 0f Appeal, “[i]t is generally an abuse 0f discretion t0 deny leave t0 amend, because the drastic step 0f denial 0f the opportunity t0 correct the curable defect effectively terminates the pleader's action.” CLD C0nst., Inc. v. City ofSan Ramon, 120 Cal. App. 4th 1141, 1146-47 (2004). IV. CONCLUSION Plaintiff requests that the Court deny Defendant’s Demurrer. In the alternative, Plaintiff requests leave t0 amend. Dated: August 11, 2021 DIVERSITY LAW GR UP _P C. FRON IFR LAW CEN By: M Wm] ”%M- Howard L. Magee Manny Starr Theodore Tang Attorneys for Plaintiff J DOE 8 PLAINTIFF J DOE’S OPPOSITION TO DEFENDANT LONG-JI LIN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT \OOONO‘NUl-PUJNH NNNNNNNNNt-tt-tt-tt-tt-tt-tt-tt-tu-tu-A OONQUI-PUJNHOKOOONQUI-PUJNHO PROOF OF SERVICE (Code 0f Civil Procedure Sections 1013a, 2015.5) STATE OF CALIFORNIA ] ]ss. COUNTY OF LOS ANGELES ] I am employed in the County 0f Los Angeles, State 0f California. I am over the age of 18 and not a party t0 the within action; my business address is 5 15 S. Figueroa Street, Suite 1250, Los Angeles, California 90071. On August 11, 2021, I served the following document(s) described as: PLAINTIFF J DOE’S OPPOSITION TO DEFENDANT LONG-JI LIN’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT on the interested parties in this action as follows: Gregory C. Tenhoff tenhoffgc@cooley.com Helen Luu hluu@cooley.com Joshua E. Elefant jelefant@cooley.com COOLEY LLP lodell@cooley.com 3 1 75 Hanover Street Palo Alto, California 94304 Attorneysfor Defendant Roku, Inc. X BY ELECTRONIC SERVICE: Based 0n a court orderI caused the above- entitled document(s) to be served through the Odyssey eFileCA E-Filing System at the website www.california.tylerhost.net, addressed t0 all parties appearing 0n the electronic service list for the above-entitled case. The service transmission was reported as complete and a copy 0f the filing receipt/confirmation will be filed, deposited, 0r maintained with the original document(s) in this office. I declare under penalty 0f peljury under the laws 0f the State 0f California that the above is true and correct. Executed 0n August 11, 2021, at Los Angeles, California. Erika Me" PROOF OF SERVICE