Response ReplyCal. Super. - 6th Dist.November 23, 2020COOLEY LLP ATTORNEYS AT LAW PALO ALTO OOQQ \O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ZOCV373940 Santa Clara - Civil COOLEY LLP GREGORY C. TENHOFF (154553) (tenhoffgc@cooley.com) HELEN LUU (300759) (hluu@cooley.com) JOSHUA E. ELEFANT (3 12913) (jelefant@cooley.com) 3 175 Hanover Street Palo Alto, California 94304-1 130 Telephone: +1 650 843 5000 Facsimile: +1 650 849 7400 S.V Electronically Filed by Superior Court of CA, County of Santa Clara, on 8/17/2021 4:56 PM Reviewed By: S. Vera Case #20CV373940 Envelope: 7082243 Attorneys for Defendants Roku, Inc. and Long-Ji Lin SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA J DOE, as an individual, Plaintiff, v. ROKU, INC., a Delaware corporation; LONG-JI LIN, an individual, and DOES 1 through 50, inclusive, Defendants. Case No. 20CV373940 REPLY MEMORANDUM IN SUPPORT 0F DEFENDANT LONG-JI LIN’s DEMURRER T0 PLAINTIFF’S FIRST AMENDED COMPLAINT Date: August 24, 2021 Time: 9:00 a.m. Dept: 2 Trial Date: Not yet set Date Action Filed: November 23, 2020 First Amended Complaint Filed: March 25, 2021 TELEPHONE APPEARANCE REPLY MEMORANDUM ISO DEFENDANT LONG-JI LIN’s DEMURRER T0 PLAINTIFF’S FAC (CASE No. 20CV373940) 255050442 v4 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. THIS COURT SHOULD GRANT THE DEMURRER 0N PLAINTIFF’S SIXTH CAUSE 0F ACTION FOR THE INTENTIONAL INFLICTION 0F EMOTIONAL DISTRESS AGAINST MR. LIN. A. Plaintiff Has Failed to Allege Any “Extreme and Outrageous” Conduct. 1. Plaintiff’s Allegation 0f an Improper Purpose Is Insufficient As A Matter of Law. As set forth in Defendant Long-Ji Lin’s Memorandum in Support 0f his Demurrer t0 Plaintiff’s Complaint (the “Demurrer”), to establish a valid claim 0f intentional infliction 0f emotional distress (“IIED”), Plaintiff must, among other elements, plead “extreme and outrageous conduct by the defendant done with the intention 0f causing, or reckless disregard ofthe probability ofcausing, emotional distress.” Hughes v. Pair, 46 Cal. 4th 1036, 1050 (2009). Mr. Lin established in his Demurrer that Plaintiff failed t0 plead the kind of “extreme and outrageous” conduct required t0 support an IIED claim, especially because a supervisor’s personnel management activity, even if done with malice or improper intent, cannot support an IIED claim as a matter 0f law. See Janken v. GM Hughes Electronics, 46 Cal. App. 4th 55, 80 (1996); (See also Demurrer at 5:15- 7:14). In Plaintiff s Opposition to Mr. Lin’s Demurrer to Plaintiff” s First Amended Complaint (the “Opposition”), Plaintiff contends that Mr. Lin’s actions were not mere personnel management decisions because the intent 0f Mr. Lin’s actions was to create a “hostile work environment for the sole purpose of trying to further break Plaintiff down emotionally.” (See Opposition at 6:13-17; First Amended Complaint (“FAC”) at fl 17.) But allegations 0fa party’s intent are simply irrelevant in determining Whether there was “extreme and outrageous” conduct. At best, those allegations help meet the intent element, but Mr. Lin’s alleged intent is irrelevant t0 showing the “extreme and outrageous” conduct required to support this claim. Indeed, Plaintiff cites n0 cases t0 support its position that a plaintiff has met its burden of sufficiently pleading “extreme and outrageous” conduct simply by alleging it was motivated by an improper purpose. On the other hand, as established in Mr. Lin’s Demurrer, there are California cases directly on point that hold that allegations of improper motive or intent, are not sufficient t0 plead “extreme and outrageous” conduct when personnel management decisions are the alleged conduct. (See Demurrer at 7:17- -1- REPLY MEMORANDUM ISO DEFENDANT LONG-JI LIN’S DEMURRER T0 PLAINTIFF’S FAC (CASE N0. 20CV373940) 255050442 v4 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8:6.) As the appellate court in Janken held, allegations of personnel management activity, even if “improper motivation is alleged,” are insufficient to support an IIED claim. 46 Cal. App. 4th at 80. Plaintiff did not provide any case law t0 rebut this specific holding. And regardless of the purpose behind Mr. Lin’s conduct and What adjectives may be used t0 make Mr. Lin’s conduct appear egregious, Plaintiff still has pled nothing more than management duties and responsibilities - e.g., allegedly forcing Plaintiff t0 work in excess of 20 hours; demanding Plaintiff produce new designs and circulate documentation, keep in continuous communication With colleagues, and attend team meetings; criticizing work product; and calling Plaintiff a “failure.” (See FAC at 1] 17.) 2. Plaintiff Has Only Alleged Personnel Management Decisions, Which Are Not “Extreme and Outrageous” Conduct as a Matter 0f Law. As to Mr. Lin’s conduct, Plaintiff only alleges the following in his FAC: 0 Mr. Lin “forced Plaintiff t0 work well in excess of 20 hours and demanded that Plaintiff produce new designs, circulate documentation of Plaintiff’s plans, keep in continuous communication With colleagues, attend team meetings, and generally be available at the drop of a hat.” 0 Mr. Lin “baselessly criticized Plaintiff’s work product, repeatedly and unwarrantedly called Plaintiff a ‘failure,’ explicitly demanded more than 20 hours” worth 0f work despite knowledge 0f Plaintiff’s work restrictions and susceptible mental condition . . . .” o “Plaintiff was required to participate in weekly, one-on-one meetings t0 discuss the status 0f Plaintiff” s projects.” (FAC at 1m 17, 19.) California case law has established that these type ofpersonnel management actions cannot constitute “extreme and outrageous” conduct as a matter 0f law: 0 Janken v. GM Hughes Electronics, 46 Cal. App. 4th 55 (1996) - As even Plaintiff articulated in the Opposition, in Janken, the court dismissed the IIED claim when the following conduct was alleged: the supervisor “downgraded 0r altered plaintiffs’ performance appraisals” “failed t0 provide plaintiffs With work assignments;” and failed t0 provide plaintiffs with sufficient clerical 0r secretarial support.” Id. at 79. 0 Wynes v. Kaiser Permanente Hospitals, 936 F.Supp.2d 1171 (E.D. Cal. 2013) - The court in Wynes dismissed the IIED claim when it was based on the following conduct: _ 2 _ REPLY MEMORANDUM ISO DEFENDANT LONG-JI LIN’S DEMURRER T0 PLAINTIFF’S FAC (CASE No. 20CV373940) 255050442 v4 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “misrepresenting the facts and circumstances regarding Plaintiff’s performance, creating dishonest write-ups and impugning her skills and worth as an employee” as well as “falsely and publicly asserted that Plaintiff’s poor performance was the reason for her termination by [defendant], and ‘deprived [Plaintiff] of a favorable recommendation in a depressed job market, thus limiting [her] future employment prospects.” Id. at 1194. o Garamendi v. Golden Eagle Ins. C0., 128 Cal. App. 4th 452 (2005) - The court found that the fact that the “intolerable working conditions” and the fact that the plaintiff was told to “keep quiet about his discoveries of fraud” did not amount t0 “extreme and outrageous” conduct to support an IIED claim. Id at 480. 0 Ankeny v. Lockheed Missiles and Space Company, 88 Cal. App. 3d 531 (1979) - Court sustained a demurrer on the IIED cause 0faction given that conduct such as “personal verbal insults,” being passed over for promotion, and assignment 0f inappropriate tasks, were not extreme and outrageous conduct. Id. at 534. 0 Lawler v. Montblanc North Am., 704 F.3d 1235 (9th Cir. 2013) -A supervisor’s criticism of plaintiff’s work performance, even when “inconsiderately and insensitively communicated,” was not conduct that exceeded “all bounds of that tolerated in a civilized community.” Id. at 1245. 0 Haley v. Cohen & Steers Capital Management, Ina, 871 F.Supp.2d 944 (N.D. Cal. May 11, 2012) - Court found that the following conduct did not satisfy the “extreme and outrageous” element 0f an IIED claim: plaintiff’s supervisor made a comment t0 plaintiff about “break up sex;” comment that plaintiff was “lazy” and not “qualified,” supervisor demanded that “plaintiff work while on intermittent leave,” demanded that plaintiff “triple her sales and should expect probation, When plaintiff returned from leave.” Id. at 960. Plaintiff s allegations in the FAC match up t0 this case law. Like Janken and Ankeny, Where the allegations center 0n work assignments, Plaintiffhere alleges that Mr. Lin forced Plaintiff t0 work additional hours and “demanded that Plaintiffproduce new designs,” attend team meetings, and other work-related matters. (FAC at 1] 17.) Additionally, the allegations that Mr. Lin demanded Plaintiff t0 work additional hours in purported contravention of any work restrictions is similar to the allegations in Haley Where the plaintiff” s supervisor also demanded that the plaintiffwork While 0n leave, which the court there found was insufficient as “extreme and outrageous” conduct. And similar t0 Wynes and Lawler Where the allegations focus 0n criticism 0f Plaintiff s work product, Plaintiff also alleged that Mr. Lin criticized Plaintiff” s work product. (See FAC at 1] 17.) Thus, all 0f the conduct by Mr. Lin alleged in the FAC are purely “typical management decisions” made by Mr. Lin as Plaintiff’ s manager. _ 3 _ REPLY MEMORANDUM ISO DEFENDANT LONG-JI LIN’S DEMURRER T0 PLAINTIFF’S FAC (CASE No. 20CV373940) 255050442 v4 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In fact, California courts have dismissed IIED claims With even worse alleged conduct than that alleged by Plaintiff here. See Cornell v. Berkeley Tennis Club, 18 Cal. App. 5th 908, 919-24 (2017) (supervisor making comments about plaintiffs weight, laughing and mocking at her, refusing t0 order a uniform in her size, and spreading misinformation about plaintiff did not “rise to the level 0f ‘outrageous conduct beyond the bounds of human decency’” needed for an IIED claim); Schneider v. TRW, Ina, 938 F.2d 986, 992 (9th Cir. 1991) (conduct where supervisor “screamed and yelled” at plaintiff in the process of criticizing her performance, as well as threatening gestures, did not amount t0 extreme and outrageous conduct). In the Opposition, Plaintiff appears t0 suggest that Mr. Lin does not have a legitimate basis t0 argue there is no “extreme and outrageous” conduct based 0n the fact that Roku has not demurred on the IIED cause of action, and therefore, the IIED cause of action against Roku would still go forward ifthe Demurrer here is granted. (See Opposition at 7:7- 1 6; Demurrer at 828-15.) However, such an argument is a red herring and does not suggest that the “extreme and outrageous” element was sufficiently alleged. Even though Roku did not file a demurrer on the IIED cause 0f action, it does not mean that it believes that the “extreme and outrageous” element was sufficiently pled even as t0 Roku. There are numerous reasons that Roku did not demur on the Sixth Cause of Action, which include the fact that there were more allegations in the FAC that pertained t0 Roku, there are numerous claims under FEHA that would move forward against Roku notwithstanding the IIED claim, that the allegations against Mr. Lin were purely limited t0 conduct stemming from Mr. Lin’s role as Plaintiff’s manager, and that the IIED claim is premised almost entirely 0n a disability discrimination theory, and such claims can only be made against the employer, and not the individual manager. On the other hand, a demurrer as to the Sixth Cause of Action 0n behalf of Mr. Lin would dismiss Mr. Lin from the case entirely. 3. Demurrer Is The Proper Remedy Here. Instead 0f addressing all of the authorities cited by Mr. Lin in the Demurrer, Plaintiff argues that demurrer is inappropriate here because the determination 0fwhether the alleged conduct is “extreme and outrageous” should be left to a fact-finder. (See Opposition at 5:9-6:6.) -4- REPLY MEMORANDUM ISO DEFENDANT LONG-JI LIN’S DEMURRER T0 PLAINTIFF’S FAC (CASE No. 20CV373940) 255050442 v4 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 However, Whether the personnel management decisions alleged in the FAC by Plaintiff constitute “extreme and outrageous” conduct is a pure question 0f law that can and should be resolved 0n demurrer. In fact, Plaintiff’s argument that such determinations of “extreme and outrageous” behavior cannot be resolved on demurrer is unpersuasive especially in light 0f the fact that California courts have, in fact, resolved this issue at the pleading stage. See, e.g., Janken, 46 Cal. App. 4th at 80 (sustaining a demurrer and dismissing the individual defendants from the suit); Ankeny, 88 Cal. App. 3d at 534 (sustaining a demurrer on the IIED cause 0f action). Moreover, the cases cited by Plaintiff t0 support this argument simply do not apply here. In the Opposition, Plaintiff cites Alcorn v. Anbro Eng’g, Ina, a decision pre-dating Janken, to suggest that decisions about “extreme and outrageous” conduct should be left t0 a fact-finder. However, the allegations inAlcorn did not focus 0n personnel management decisions at all. Rather, the plaintiff in Alcorn alleged that the supervisor had humiliated plaintiff by insulting his race, Which is clearly not a personnel management decision. 2 Cal. 3d 493, 498 (1970). As such, the court did not consider personnel management decisions at all. Additionally, the other cases cited by Plaintiff are completely inapposite given that they are not employment cases and therefore, the courts never addressed any personnel management decisions and Whether the alleged conduct constituted “extreme and outrageous” behavior. See Angie M. v. Superior Court, 37 Cal. App. 4th 1217, 1226 (1995) (a non-employment case focusing 0n allegations such as unlawful seduction and childhood sexual abuse); Burnett v. Chimney Sweep, 123 Cal. App. 4th 1057, 1067 (2004) (premise liability case based 0n the landlord’s failure to correct defective conditions); Erlach v. Sierra Asset Servicing, LLC, 226 Cal. App. 4th 1281, 1299 (2014) (a property case Where the plaintiff alleged that the landlord defendant had turned off gas and electricity to freeze plaintiff out). B. The Sixth Cause 0f Action Against Mr. Lin Also Fails Because 0f Workers’ Compensation Exclusivity. 1. The IIED Claim Is Barred Pursuant t0 California Supreme Court Authority Because All Conduct Alleged Against Mr. Lin Occurred Within the Normal Course of Employment. Mr. Lin’s Demurrer established an additional, independent defect With the Sixth Cause 0f _ 5 _ REPLY MEMORANDUM ISO DEFENDANT LONG-JI LIN’S DEMURRER T0 PLAINTIFF’S FAC (CASE No. 20CV373940) 255050442 v4 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Action: the IIED claim is preempted by California’s Workers’ Compensation Act, which is the exclusive remedy for actions arising out 0f and in the course 0f employment. (See Demurrer at 10- 12.) The California Supreme Court has explicitly stated that injuries allegedly resulting from termination of employment are preempted under this rule because “both the act of termination and the acts leading up t0 termination necessarily arise out 0f and occur in the course 0f employment.” See Shoemaker v. Myers, 52 Cal.3d 1, 20 (1990). In the Opposition, Plaintiff s sole argument is that workers’ compensation exclusivity does not apply due to the California Court of Appeal’s holding in Light v. Dep ’t ofParks & Recreation, 14 Cal. App. 5th 75 (2017) and similar cases. (See Opposition at 7 : 1 8-8: 13.) However, those cases either rely upon cases pre-dating the California Supreme Court’s decision in Miklosy v. Regents 0f the Univ. 0fCal., 44 Cal. 4th 876 (2003) 0n workers’ compensation exclusivity, or d0 not address Miklosy at all, and thus are inapplicable here. In Miklosy, the California Supreme Court expressly held that workers’ compensation law excludes an IIED claim brought by the employee if the “alleged wrongful conduct. . . occurred at the worksite, in the normal course 0f the employer-employee relationship.” 44 Cal. 4th at 902. In the Demurrer, Mr. Lin Cites a number of cases post-Miklosy, Which held that IIED claims based 0n conduct in the workplace are barred by the exclusive workers’ compensation remedy. (See Demurrer at 9:3-17.) (citing Yau v. Santa Margarita Ford, Ina, 229 Cal. App. 4th 144, 1621 (sustaining a demurrer 0n the IIED claim based on the plaintiff’ s conduct 0f giving plaintiff illegal directions); Vasquez v. Franklin Management Real Estate Fund, Ina, 222 Cal. App. 4th 819, 832 (2013) (relying on Miklosy, court dismissed the IIED claim under workers’ compensation exclusivity When the allegations centered on defendant’s failure t0 reimburse plaintiff for mileage); Singh v. Southland Stone USA, Ina, 186 Cal. App. 4th 338, 367 (2010) (n0 IIED claim based 0n allegations that the supervisor “berated and humiliated” plaintiff, “criticized his job performance,” and “threatened t0 throw him out 0f the office if he did not sign a release” given that they were all conduct occurring in the normal course 0f the employer-employee relationship”). 1 Yau and Light were both decided by the California appellate court in the Fourth District, and Light, which was decided after Yau, did not overrule Yau. REPLY MEMORANDUM ISO DEFENDANT LONG-JI LIN’S DEMURRER T0 PLAINTIFF’S FAC (CASE No. 20CV373940) 255050442 v4 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff glosses over those cases by stating that they pre-date Light. (See Opposition at 7:22-26.) And in doing so, Plaintiff also ignores Mr. Lin’s argument in the Demurrer that Light appears t0 be at odds with the California Supreme Court’s decision in Miklosy and the subsequent decisions that rely upon Miklosy that have concluded that any wrongful conduct that occur at the workplace, is subject t0 workers’ compensation exclusivity. (Demurrer at 923-17.) In particular, the holding in Miklosy is focused 0n wrongful conduct that occurred at the worksite, and is not limited t0 certain statutory claims, as Plaintiff seems t0 suggest in the Opposition: Plaintiffs allege defendants engaged in ‘0utrageous conduct’ that was intended t0, and did, cause plaintiffs ‘severe emotional distress,’ giving rise to common law causes 0f action for intentional infliction 0f emotional distress. The alleged wrongful conduct, however, occurred at the worksite, in the normal course 0fthe employer-employee relationship, and therefore workers’ compensation is plaintiffs’ exclusive remedy for any injury that may have resulted. 44 Cal. 4th at 902 (emphasis added). Under Miklosy, workers’ compensation exclusivity would cover Mr. Lin’s conduct alleged here - allegedly forcing Plaintiff to work additional hours, demanding Plaintiff produce new designs and circulate documentation, keep in continuous communication with colleagues, attend team meetings, criticizing work product - which are all typical employment decisions and actions that occur at the workplace. Additionally, Plaintiff also cites two additional cases that purport to support the position that workers’ compensation exclusivity does not apply to an IIED claim when the plaintiff also alleged claims under FEHA. (See Opposition at 8: 1-13.) However, those cases do not apply here given that those cases did not reference and consider Miklosy. Accordingly, given that the alleged conduct here is limited t0 events occurring within the normal course 0femployment, the IIED cause 0f action against Mr. Lin should be barred. To the extent that this court finds that there is an exception under workers’ compensation exclusivity for claims raised under the Fair Employment Housing Act (“FEHA”), such claims have not been alleged nor could be alleged against Mr. Lin as an individual. See Reno v. Baird, 18 Cal. 4th 640, 662 (1998). Given that Plaintiff’s allegations against Mr. Lin center on Mr. Lin’s purported circumvention ofPlaintiff s alleged work restrictions, Plaintiff’s IIED claim against Mr. Lin is essentially a proxy for a disability discrimination claim _ 7 _ REPLY MEMORANDUM ISO DEFENDANT LONG-JI LIN’S DEMURRER T0 PLAINTIFF’S FAC (CASE No. 20CV373940) 255050442 v4 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 against Mr. Lin, which is impermissible in light 0f the fact that FEHA claims cannot be brought against individual defendants. See Reno, 18 Cal. 4th at 664 (“it would be absurd t0 forbid a plaintiff t0 sue a supervisor under the FEHA, then allow essentially the same action under a different rubric”). 2. The Cases Cited By PlaintiffAre Factually Dissimilar to the Allegations Here. Furthermore, While the courts in Light, Nazir, and Pacific Pearl Hotel Management, LLC, Which were cited by Plaintiff in the Opposition, have allowed an IIED claim t0 proceed notwithstanding the fact that those claims were brought against the plaintiff’s employer and/or supervisors, they are all factually dissimilar from the allegations in the FAC, and thus warrant a different conclusion. As discussed in the Demurrer, Light involved facts that are clearly outside the scope 0f employment. For example, in Light, the IIED claim against one of the defendants was in part premised upon conduct that occurred outside the workplace, namely that the supervisor pursued Plaintiff at her home as W611 as physically attacked her. 14 Cal. App. 5th at 691. In fact, the allegations in Light used t0 support the IIED claim, were also used t0 support claims of assault and false imprisonment, Which are not employment-related claims. Id. In Nazir, While claims under FEHA were alleged along With the IIED claim, the alleged conduct t0 support the IIED claim was also based upon events that occurred outside the workplace, namely, allegations of racial epithets and profanities, vandalism of his car, and also a call t0 the FBI by his coworker accusing plaintiff as a “possible terrorist.” 178 Cal. App. 4th 243, 258-59 (2009). Indeed, the plaintiff in Nazir also alleged causes 0f action for fraud and battery. Id. at 288. And in Pacific Pearl Hotel Management, LLC, the IIED and FEHA claims stemmed from allegations that the plaintiff was raped by a non- employee. MF. v. Pacific Pearl Hotel Management LLC, 16 Cal. App. 5th 693, 698 (2017). The allegations in Light, Nazir, and Pacific Pearl Hotel Management, LLC are especially egregious, are not conduct that would occur in the normal course 0f employment, and a far cry from the allegations in the FAC here, where the allegations against Mr. Lin are purely management decisions that are entirely Within the course and scope of employment. As such, those cases are inapplicable here With respect t0 workers’ compensation exclusivity. _ 8 _ REPLY MEMORANDUM ISO DEFENDANT LONG-JI LIN’S DEMURRER T0 PLAINTIFF’S FAC (CASE No. 20CV373940) 255050442 v4 COOLEY LLP ATTORNEYS AT LAW PALO ALTO 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. THIS COURT SHOULD GRANT THE DEMURRER WITHOUT LEAVE T0 AMEND. Although courts generally grant leave t0 amend, leave t0 amend is not appropriate When the plaintiff cannot correct the deficiency in the pleading. See Blank v. Kirwan, 39 Cal 3d 311, 318 (1985). Such is the case here. First, Plaintiff has already had an opportunity t0 amend its pleadings. As set forth in the Demurrer, prior to Mr. Lin’s filing of the Demurrer, attorneys for Defendants sent t0 counsel for Plaintiff a letter setting forth Mr. Lin’s basis for a demurrer on the IIED cause of action and applicable legal authorities. (See Declaration 0f Helen Luu (“Luu Decl”), 1] 2, EX. A.) In response t0 the letter as well as a meet and confer call between attorneys for the parties, Plaintiff agreed to amend the Complaint to add additional factual allegations to support the IIED cause of action. (See Luu Decl., 1] 3.) While Plaintiff did amend the Complaint, the FAC did not include any additional allegations With respect to the “extreme and outrageous” conduct element. Rather, the amendment consisted solely 0f adding a few adjectives t0 describe the same alleged conduct by Mr. Lin that Plaintiff was previously informed was defective. (Demurrer at 2214-425.) As such, despite the previous opportunity to allege additional facts t0 support the IIED cause of action, Plaintiff was unable t0 cure the deficiencies. As such, leave t0 amend would be futile. Second, Plaintiff is and has been fillly aware of all the facts and circumstances that allegedly occurred in order t0 sufficiently plead an IIED claim, and thus, could have pled additional facts if there are any. The fact that Plaintiff has not demonstrates that Plaintiff has n0 additional facts that could be pled t0 support the IIED claim. In such circumstances Where Plaintiff has all the facts and has failed t0 plead the necessary elements, leave to amend is appropriately denied. See Haskins v. San Diego County Dept. ofPublic Welfare, 100 Cal. App. 3d 961, 965 (1980) (“Leave t0 amend is properly denied if the facts and nature of plaintiff’ s claim are clear and under the substantive law, n0 liability exists”). Moreover, While Plaintiff has requested leave t0 amend, Plaintiff has not met its burden in showing that it could cure the defects such that it should be given another opportunity t0 amend the complaint. See Goodman v. Kennedy, 18 Cal. 3d 335, 349 (1976) (“Plaintiff must show in What manner he can amend his complaint and how amendment Will change the legal effect of his pleading”). _ 9 _ REPLY MEMORANDUM ISO DEFENDANT LONG-JI LIN’S DEMURRER T0 PLAINTIFF’S FAC (CASE No. 20CV373940) 255050442 v4 1 Third, Plaintiff cannot save the IIED cause of action against Mr. Lin because it is barred 2 under workers’ compensation exclusivity. As such, no amendment would be able t0 save the IIED 3 cause of action and leave t0 amend should be denied. 4 III. CONCLUSION. 5 For the foregoing reasons, Defendant Mr. Lin respectfully requests that this Court grant 6 Defendant Long-Ji Lin’s demurrer to the Sixth Cause 0f Action in Plaintiff’s First Amended 7 Complaint Without leave t0 amend. 8 Dated: August 17, 2021 9 COOLEY LLP 10 Gran Tutu? 1 1 By: Gregory C. Tenhoff(154553) 12 Helen Luu (300759) 1 3 Joshua E. Elefant (3 12913) Attorneys for Defendants 14 Roku, Inc. and Long-Ji Lin 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COOLEY LLP ' 10 ' ATTORNEYS AT LAW pmAm REPLY MEMORANDUM ISO DEFENDANT LONG-JI LIN’S DEMURRER T0 PLAINTIFF’S FAC (CASE No. 20CV373940) 255050442 v4 1 PROOF OF SERVICE 2 I am a citizen of the United States and a resident of the State 0f California. I am employed 3 in Santa Clara County, State of California, in the office 0f a member of the bar of this Court, at 4 Whose direction the service was made. I am over the age 0f 18 years and not a party t0 this action. 5 My business address is Cooley LLP, 3175 Hanover Street, Palo Alto, California 94304-1 130. My 6 e-mail address is patricia.russell@cooley.com. On August 17, 2021, I served the following 7 documents 0n the parties listed below in the manner(s) indicated: 8 REPLY MEMORANDUM 1N SUPPORT 0F DEFENDANT LONG-JI LIN’S DEMURRER T0 9 PLAINTIFF’S FIRST AMENDED COMPLAINT D (BY U.S. MAIL - CCP § 1013a(1)) I am familiar with the business practice 10 0f Cooley LLP for collection and processing of correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it 11 is deposited in the ordinary course of business with the United States Postal 1 2 Service, in a sealed envelope With postage fully prepaid. 13 D (BY MESSENGER SERVICE - CCP § 101 1) I consigned the document(s) t0 an authorized courier and/or process server for hand delivery on this date. 14 D (BY FACSIMILE - CCP § 1013(6)) I am personally and readily familiar With 15 the business practice 0f Cooley LLP for collection and processing of document(s) to be transmitted by facsimile and I caused such document(s) on 16 this date to be transmitted by facsimile t0 the offices 0f addressee(s) at the numbers listed below. 17 18 D (BY OVERNIGHT MAIL - CCP § 10131) I am personally and readily familiar With the business practice of Cooley LLP for collection and 19 processing of correspondence for overnight delivery, and I caused such document(s) described herein t0 be deposited for delivery t0 a facility 20 regularly maintained by Federal Express for overnight delivery. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 COOLEYLLP 1. PALO ALTO PROOF 0F SERVICE, CASE N0. 20CV373940 25541 0491 v1 E (BY ELECTRONIC MAIL - CCP § 1010.6(a)(4)(A)) Based on a court order 2 or an agreement of the parties to accept service by e-mail 0r electronic transmission, I caused such documents described herein t0 be sent t0 the 3 persons at the e-mail addresses listed below. I did not receive, Within a reasonable time after the transmission, any electronic message or other 4 indication that the transmission was unsuccessful. 5 Howard L. Magee Robert Starr 6 Larry W. Lee Theodore Tang Max Gavron Manny Starr 7 Diversity Law Group Frontier Law Center 8 5 15 South Figueroa St., Suite 1250 23901 Calabasas Rd., Suite 2074 Los Angeles, CA 90071 Calabasas, CA 9 1 302 9 Phone: (213) 488-6555 Phone: (818) 914-3433 Fax: (213) 488-6554 Fax: (818) 914-3433 10 Email: hmagee@diversitvlaw.com Email: robert@starrlaw.com; lwlee@diversitvlaw.com theodore@frontierlawcenter.com 1 1 . . . mgavr0n@dlver31tvlaw.com mannv@frontmrlawcentercom 12 linda diversit law.com eservice@frontierlawcenter.com Attorneys for Plaintiffs Attorneys for Plaintiffs 1 3 14 I declare under penalty 0fperjury under the laws 0f the State of California that the above is 15 true and correct. 16 Executed 0n August 17, 2021 at Palo Alto, California. 17 18 Pahida Kusde Patricia Anne Russell 19 20 21 22 23 24 25 26 27 28 COOLEY LLP 2 . ATTORNEYS AT LAW momo PROOF 0F SERVICE, CASE N0. 20CV373940 255410491 v1