Order Submitted Matter

Cal. Super. - 6th Dist.June 2, 2021

Order issued 3n Submitted Matter wr- * ‘ E L. 5“ SUPERIOR COURT, STATE 0F CALIFORNIA w-fl L3 sf} COUNTY 0F SANTA CLARA DEPARTMENT 20 FEE: XL}. 2832 161 North First Street, San Jose, CA 95113 408.882.2320 - 408.882.2296 (fax) C‘erk smanoukian@scscourt.org 3mm mm La. http;//www.5cscourt.org By tbs Cour: Same: 0am CASE NO.: 21CV383442 Dr. Heather Colbert, M.D., PhD. v. County of Santa Clara, et a1. DATE: 13 January 2022 TIME: 9:00 am LINE NUMBER: 1 Order on Submitted Matter ---oooOooo--- Order on Demurrerto Plaintiff’s Complaint. l. Statement of Facts. Plaintiff Dr. Heather Colbert, M.D., Ph.D's (“Dr. Colbert") 95 page complaint consists of 587 enumerated paragraphs directed against defendant County of Santa Clara (“County”). Plaintiff Dr. Colbert alleges generally that when other employees began to spread baseless damaging rumors against her in 2017, defendant County did nothing t0 stop them and allowed them to continue until at least the end of 2020. (Complaint, page 2, lines 10 - 13.) Defendant County punished plaintiff Dr. Colbert for complaining about other employees who failed to follow protocol, put patient lives at risk, and skipped scheduled shifts. (Complaint, page 2, lines 13 - 15.) Defendant County took no action when other employees openly disrespected, demeaned, and acted with hostility toward plaintiff Dr. Colbert despite multiple compfaints. (Complaint, page 2, lines 15 - 17'.) When plaintiff Dr. Colbert continued to complain, defendant County continued to escalate the retaliation against her until forcing plaintiff Dr. Colben to resign from heremployment. (Complaint, page 2, lines 17' - 20.) Plaintiff Dr. Colbert‘s complaint, filed 2 June 20211, asserts causes of action for: (1) Reta1iation: Violation 0f Labor Code § 1102.5 ' (2) Retaliation: Gov. Code. § 12940, subd. (h) (3) Discrimination: Gov. Code,§ 12940, subd. (a) (4) Harassment: Gov. Code, § 12940, subd. (j) ) Violation of the California Family Rights Act: Gov. Code, § 12945.2, et seq. ) Disability Discrimination: Gov. Code, § 12940, subd. (a) ) ) ) AAA Nam Failure to Engage in Interactive Process: Gov. Code, § 12940, subd. (n) 8 Failure t0 Accommodate: Gov. Code. § 12940, subd. (m) (9 Failure to Prevent Harassment, Discrimination, and Reta1iation: Gov. Code, § 12940, subd. (k) (10) Patient Safety Whistleblower Retaliation: Health & Saf. Code. § 1278.5 ( 11) Retaliation: Violation of Labor Code §§ 6310 8 6311 A 1 This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code. §§ 68600-68620) The California Rules of Court state that the goaI of each trial court should be to manage limited and unlimited CIVII cases fromlfiling so that 100 percent are disposed ofwilhin 24 months (Ca 8t Civil Rules of Court Rule 3. 714(b) (1) (C) and (b)(2)(0) 13 January 2022 Order on Demurrer to Plaintiff’s Complaint. Page 1 of\7 On 13 September 2021, defendant County filed the motion now before the court, a demurrer to the fifth through eighth causes of action in plaintiff Dr. Colbert's complaint. ' ll. Demurrers in General. A complaint must contain substantive factual allegations sufficiently apprising the defendant of the issues to be addressed. (See Williams v. BeechnutNutn'tion Corp. (1986) 185 Cal.App.3d 135. 139, fn. 2.) A demurrer tests the legal sufficiency of a complaint. It is properiy sustained where the compfaint or an individual cause of action fails to “state facts sufficient to constitute a cause of action." (Code of Civil Procedure, § 430.10, subd. (6).) “[Clonclusionary allegations . . . without facts to support them" are insufficient on demurrer. (Ankeny v. Lockheed Missfles and Space Co. (1979) 88 Cal.App.3d 531, 537.) “1t is fundamental that a demurrer is an attack againstthe complaint on its face, it should not be sustained unless me complaint shows that the action may not be pursued.” (Yolo County Dept. of Social Services v. Municipal Court(1980) 107 Cal.App.3d 842, 846- 847) “it is not the ordinary function of a demurrerto test the truth of the plaintiffs allegations orthe accuracy with which he describes the defendant's conduct. A demurrer tests oniy the legal sufficiency of the pleading." (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213.) “It 'admits the truth of aII material factual allegations in the complaint . . .; the question 0f plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.‘ [Citati0n.]" (Id. at pp. 213-214; see Cook v. De La Guerra (1864) 24 CaL 237, 239: “[I]t is not the office of a demurrerto state facts, but to raise an issue of Jaw upon the facts stated in the pleading demurred to.“) Ill. Analysis. Plaintiff asserts that the demurrers should be overruled on the following grounds: First, Plaintiff stated she took medical leave in the complaint. Second, Plaintiffs stress and stress-related severe headaches rose to the level of medical disability for which she took medical leave. Third, Defendant failed to engage in the interactive process with Plaintiff by moving her t0 an unsafe office after she returned to work from her leave, thus chiliing her from seeking future accommodation, and by failing to inquire as to what form 0f accommodation she still needed. Finally. Defendant failed to accommodate Plaintiff by simultaneously demoting her and moving her to an unsafe office upon her retum to work from her leave. A. Defendant County's demurrer to the fifth cause of action (violation of the California Family Rights Act) in plaintiff Dr. Colbert’s complaint is OVERRULED. The California state counterpart t0 the federal Family and Medical Leave Act (“FMLA”) (29 U.S.C. § 2601 et seq.) is the Moore-Brown-Roberti Family Rights Act (“CFRA”) which is codified in Government Code, § 12945.2. “The CFRA, which is contained within the Fair Employment and Housing Act (FEHA), is intended to give employees an opportunity to take leave from work for certain personal or family medical reasons withoutjeopardizing job secun‘ty.” (Nelson v. United Technologies (1999) 74 Cal.AppAm 597, 606.) Government Code, § 12945.2, subdivision (I) states, "It shall be an unlawful employment practice for an employer to refuse to hire, or to discharge, fine, suspend, expel, or discn'minate against, any individual because of an individual's exercise of the right to family care and medical leave provided by subdivision (a)." “A plaintiff can establish a pn'ma facie case of retaliation in violation of the CFRA by showing the foltowing: (1) the defendant was a covered employer; (2) the plaintiff was eligible for CFRA leave; {3) the plaintiff exercised his or her right to take a qualifying leave; and (4) the plaintiff suffered an adverse employment action because he or she exercised the right to take CFRA leave." (Rogers v. County ofLos Angeles (2011) 198 Cal.AppAm 480, 491; italics original; see also Dudley v. Dept. of Transportation (2001) 90 CaLAppA‘h 255, 261; see also CACI, No. 2620.) 13 January 2022 Order on Demmer to Plaintiff’s Complaint. Page 2 of 7 In demurring to the fifth cause of action, defendant County contends plaintiff Dr. Colbert has not sufficiently alleged that she exercised hern’ght to take a qualifying leave because plaintiff Dr. Colbert did not identify the time as such. Defendant County acknowledges an allegation that Dr. Colbert had a conversation with Dr. Meade (director) 0n 25 July 2019 stating she had severe headaches and “may seek a medical leave for them" and then laterthat evening emailed Dr. Meade stating she was taking time off work for the headaches and that she had scheduled a doctor‘s appointment five days fater. (Complaint, W298 - 299.) With regard to the procedure for requesting CFRA leave, Cal. Code Regs., tit. 2, § 11091, subd. (a)(1) states: Unless an employer waives its employees‘ notice obligations described herein, an employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs CFRA leave. and the anticipated timing and duration of the leave. The employee need not expressly assert rights under CFRA or FMLA or even mention CFRA or FMLA to meet the notice requirement, however, the employee must state the reason the leave is needed, such as, for example, the expected birth 0f a child or for medical treatment. The mere mention of vacation,” other paid time off, 0r resignation does not render the notice insufficient, provided the undedying reason for the request is CFRAqualifying. and the employee communicates that reason to the employer. The employer should inquire further of the employee ifnecessary to determine whether the employee is requesting CFRA leaVe and to obtain necessary information concerning the leave (i.e., commencement date, expected duration, and other permissible information). An employee has an obligation to respond to an employer's questions designed to determine whether an absence is potentially CFRA-quatifying. Failure to respond to permissible employer inquiries regarding the leave request may result in denial of CFRA protection if the employer is unable t0 detelmine whether the leave is CFRA-qualifying. (A) Under all circumstances, it is the employer’s responsibility to designate leave, paid or unpaid, as CFRA or CFRA/FMLA qualifying, based on information provided by the employee or the employee's spokesperson, and to give notice of the designation to the employee. (Emphasis added. See also Faust v. California Portland Cement Co. (2007) 150 Cal.AppAU‘ 864, 879.) The highlighted portion of the regulation makes ciear that the employee need not expressly assert n'ghts under CFRA or even mention CFRA and that it is the employer's obiigat'lon to inquire further t0 determine whether the employee is requesting CFRA leave. Defendant County cites no authon'ty which requires plaintiff Dr. Colbert t0 expressly assert that she was taking medical leave pursuant to CFRA. Defendant County goes on to argue that even if plaintiff Dr. Colbert requested to take medical leave. plaintiff did not give sufficient notice that the leave was CFRA qualifying because Dr. Colbert indicated she was merely seeking treatment for severe headaches. “Family care and medical leave" includes “[l]eave because 0f an employee's own serious health condition that makes the employee unable to perform the functions of the position 0f that employee . . . ." (Gov. Code, § 12945.2, subd. (c)(3)(C).) ”Sen'ous health condition“ means "an illness, injury, impairment, 0r physical 0r mental condition that involves either 0f the following: [P] (A) Inpatient care in a hospital, hospice, or residential health care facility. [P] (B) Continuing treatment or continuing supervision by a health care provider.“ (Gov. Code, § 12945.2, subd. (c)(8).) (Gibbs v. Am. Airlines (1999) 74 Cal.App.4”‘ 1, 6 (Gibbs).) Defendant County relies on Gibbs where the court wrote: A cold or flu is not an incapacitating serious health condition under CFRA absent unusual circumstances. California regulations describe a "sen'ous health condition“ as an illness involving either inpatient care 0r "continuing treatment or continuing supervision by a health care provider as detailed in FMLA and its implementing regulations.“ (Cal. Code Regs., fit. 2, §7297.0, subd. (0).) FMLA regulations specifically name "the common cold" and “the flu“ as "examples 0f conditions that do not meet the definition 0f a sefious health condition and do not qualify for FMLA leave." (29 C.F.R. § 825.114(c) (1998).) 13 January 2022 Order on Demurrer to Plaintiff’s Complaint. Page 3 of 7 (Gibbs, supra. 74 Cal.AppA‘h at p. 8.) The Court does not find Gibbs to be determinative here since plaintiff Dr. Gilbert is not alleging that she took leave based upon a common cold or the flu nor are there any additional facts with regard to whether plaintiff Dr. Gilbert's condition required inpatient care, continuing treatment, or continuing supervision by a health care provider. More importantly, "[w]hether notice is sufficient under CFRA is a question of fact.“ (Avila v. ContinenfaIAirlines, Inc. (2008) 165 Cal.App.4"‘ 1237. 1255.) Accordingly, defendant County‘s demurrer to the fifth cause of action (viotation of the California Family Rights Act) in plaintiff Dr. Colbert‘s complaint on the ground that the pleading does not state facts sufficient t0 constitute a cause of action [Code of Civil Procedure, §430.1 0. subd. (e)] is OVERRULED. B. Defendant County’s demurrer to the sixth cause of action (disability discrimination) in plaintiff Dr. Colbert’s complaint is SUSTAINED. The sixth cause of action alleges that the County unlawfuliy discriminated against her because 0f her disability that she defines as severe headaches. (Complaint, §§ 295, 298-300, 520.) The County contends that FEHA does not require an employer t0 accommodate minor conditions and the applicable reg ulations only identify “migraine headaches" as a qualifying medical condition. (Cal. Code Regs., tit. 2, § 11065, subd. (d)(9)(B).) In the context of disability discrimination, the plaintiff initially has the burden to establish a prima facie case of discrimination. The plaintiff can meet this burden by presenting evidence that demonstrates, even circumstantially or by inference, that he or she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability. (Jensen v. Wells Fargo Bank (2000) 85 Cal.AppAth 245, 254 [102 Cal. Rptr. 2d 55].) (Sandal! v. Taylor-Listug, Inc. (2010) 188 Ca1.App.4"‘ 297, 310; see also CACI, No. 2540.) In demurn'ng to the sixth cause 0f action, defendant County acknowledges plaintiff Dr. Colbert‘s allegations that she suffered “stress" and “severe headaches," but contend those conditions do not qualify as disabilities. “Mental disability' includes, but is not limited to, all of the following: Having any mental 0r psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional 0r mental iltness, or specific learning disabilities, that timits a major life activity." (Government Code, § 12926, subd. (j)(1 ).) A “physical disability" must also limit a major life activity.“ (Government Code, § 12926, subd. (m)(1)(B).) A mental 0r psychological disorder or condition or a physiological “disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult." (Government Code, § 12926, subd. (DUMB) and (m)(1)(B)(ii).) "Disability“ does not include conditions that are mild, which do not limit a major life activity, as determined on g_c_g§_eg_b§§a‘s_ej basis. These excluded conditions have little or no residuat effects, such as the common cold; seasonal 0r common influenza; minor cuts, sprains, muscle aches, soreness, bruises, or abrasions; non-migraine headaches, and minor and non-chronic gastrointestinaldisorders. . (Cal. Code Regs., tit. 2, § 11065, subd. (d)(9)(B); emphasis added.) However, even underthis panicuiar regulation, exclusions are “determined 0n a case-by-case basis." Without taking judicial notice 0f its own knowledge, this Coufi believes that “severe headaches" not otherwise non-migraine headaches might be due to intracranial aneurysm, spaceoccupying lesion, cerebral venous thrombosis, spontaneous internal carotid artery dissection (probably unlikeiy in this case), colloid cysts, ventn'cular tumors, Chian' malformations or arteriovenous malformations. “Because recovery Is based on a statutory cause of action, the plaintiff must set forth facts in his complaint sufficiently detailed and specific to support an inference that each of the statutory elements of liability is satisfied. General allegations are regarded as inadequate." (Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5.) 13 January 2022 Order on Demurrer t0 Plaintiff’s Complaint. Page 4 of 7 The CFRA defines a “[slerious health condition" as “an illness, injury, impairment, or physical 0r mental condition that involves either Of the following: [1]] (A) Inpatient care in a hospital, hospice, 0r residential health care facility. [orfl] (B) Continuing treatment or continuing supervision by a health care provider." (§ 12945.2(c)(8).) “inpatient care” means “a stay in a hospital, hospice, or residential health care facility, any subsequent treatment in connection with such inpatient care, or any pen'od of incapacity." (Cal. Code Regs, tit. 2. § 11087(q)(1).) “Continuing treatment" means “ongoing medical treatment or supervision by a health care provider (Id. at (q)(3); (Son'a v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5"‘ 570, 601 .) Although plaintiff alleges she suffered “severe headaches," there is nothing on the face of the pleading from which this Court can determine, as a matterof law, that such ”severe" headaches were ofthe “non-migraine" variety. On reflection, plaintiff, especially given her medical background, should be able to allege what kind of symptoms she claims to have suffered. Accordingly, defendant County’s demurrer to the sixth cause 0f action (disability discrimination) in plaintiff Dr. Colbert’s complaint on the ground that the pleading does not state facts sufficient t0 constitute a cause 0f action [Code of Civil Procedure, §430.10, subd. (e)] is SUSTAINED with 10 days' leave to amend. C. Defendant County’s demurrer to the seventh and eighth causes of action (failure to engage in the interactive process! failure to accommodate) in plaintiff Dr. Colbert’s complaint is SUSTAINED. "Under FEHA. it is an untawful practice for an employer to fail to engage in a good faith interactive process with the employee to determine an effective reasonable accommodation if an employee with a known physical disability requests one. (§ 12940, subd. (n); see § 12926.1, subd. (e); AM. v. Alben‘sons, LLC (2009) 178 Cal.AppAU‘ 455, 463 [100 Cal. Rptr. 3d 449] (Albertsons).)" (Brown v. Los Angeles Unified School Dist. (2021) 60 Cal.Appflh 1092, 1109 (Brown).) An employer must provide a reasonable accommodation for an applicant or employee with a known mental or physica1 disability unless the accommodation would cause undue hardship. Failure t0 do so is an unlawful employment practice. (§ 12940, subd. (m)(1); Cal. Code Regs, tit. 2. § 11068 subd. (a).) To establish a failure to accommodate claim. [plaintiff] must show (1) she has a disability covered by FEHA; (2) she can perform the essential functions of the position; and (3) [defendant] failed reasonably to accommodate her disability. (Brown, supra, 60 Cal.App.5“‘ at p. 1107.) Defendant County demurs to the seventh and eighth cause 0f action on me same ground it demurred to the sixth cause of action, i.e., plaintiff Dr. Colbert does not allege she suffered from a quaiifying disability. For the reasons discussed above, the Court disagrees. Defendant County demurs further to the seventh cause of action on the ground that plaintiff Dr. Colbert makes n0 allegation that she even requested an accommodation. The “obligation [t0 engage in the interactive process] is triggered by an employee or an employee's representative giving notice 0f the employee's disability and the desire for accommodation." (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4”‘ 245, 261 .) In opposition, plaintiff Dr. Colbert directs the Court's attention to a portion 0f the complaint where she alleges she informed Dr. Meade on 25 July 2019 of her “need to take time off,” i.e., a request for accommodation, and was subsequently informed ”she was off the schedule until October 25, 2019" even though she “never requested a prolonged leave.” (Complaint, 1m 299 - 300.) As plaintiff Dr. CoIben points out: Once the interactive process is initiated. the employers obligation to engage in the process in good faith is continuous. "Mhe employer‘s obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation orwhere the employer is aware that the initial accommodation is failing and further accommodation is needed. This rule fosters the framework 0f cooperative problem-solving contemplated by the ADA, by encouraging employels to seek to find accommodations that really work ." (Humphrey v. Memorial Hospitals Ass’n (9th Cir. 2001) 239 F.3d 1128, 1138.) 13 January 2022 Order on Demurrer to Plaintiff’s Complaint. Page 5 of 7 (Scotch v. Artinstitute of California (2009) 173 Cal.AppAm 986, 1013 [93 Cal.Rptr.3d 338].) Plaintiff Dr. Colbert asserts that defendant County stopped engaging In the interactive process upon her return to work. However, plaintiff Dr. Colbert does not allege she asked for a different accommodation nor does she allege facts that defendant County was aware the initial accommodation failed 0r that further accommodation was needed. Accordingly, defendant County’s demurrer to the seventh cause of action (faifure t0 engage in the interactive process) in plaintiff Dr. Colbert‘s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (9)] is SUSTAINED with 10 days' leave to amend. Similarly, with regard to the eighth cause of action, defendant County contends there are insufficient allegations that it failed to accommodate plaintiff Dr. Colbert. In opposition, plaintiff Dr. Colbert concedes defendant “initially accommodated" her, but “stopped doing so the moment Plaintiff returned t0 work" and instead, demoted her and moved herto an unsafe office. (See Complaint, 1T1] 300, 340, and 343.) However, as with the seventh cause of action, plaintiff Dr. Colbert does not allege she asked for a different accommodation nor does she allege facts that defendant County was aware the initial accommodation failed or that further accommodation was needed. Accordingly, defendant County's demurrer t0 the eighth cause of action (failure to accommodate) in plaintiff Dr. Colbert‘s complaint 0n the ground that the pleading does not state facts sufficient t0 constitute a cause of action [Code of Civil Procedure, §430.10, subd. (9)] is SUSTAINED with 10 days' leave to amend. IV. Tentative Ruling. The tentative ruling was duly posted. The defense duly challenged the tentative ruling. Ms. Ciarimboli appears for Plaintiff via Court Call. Messm. Seven'an and Mr. Bussey appeared for Defendant in person. The defense argued that the medical conditions ciaimed by plaintiff have to be qualifying, such as requiring inpatient care, continuing treatment, continuing's supervision. The complaint does not currently allege that she had a qualifying medical condition ortreatment. She aHeges that she made one appointment but does not allege she kept the employment Plaintiff argues that she alleged that stress was caused by work and thus qualifies, even if the cause of the headaches was temporary. This Court has reconsidered its ruling 0n the sixth cause 0f action for the reasons stated above. The demurrer to the sixth cause of action is SUSTAINED. V. Case Management. The current case management conference currently set for 12 July 2022 at 10:00 AM in this department will REMAIN AS SET. VI. Order. Defendant County's demurrer to the fifth cause of action (violation of the California Family Rights Act) in plaintiff Dr. Colbert's complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure. §430.10, subd. (e)] is OVERRULED. Defendant County's demurrer to the sixth cause of action (disability discrimination) in plaintiff Dr. Colben's complaint on the ground that the pleading does not state facts sufficient t0 constitute a cause 0f action [Code of Civil Procedure, § 430.10, subd. (e)] is SUSTAINED with 10 days' leave to amend. Defendant County's demurrerto the seventh cause of action (failure to engage in the interactive process) in plaintiff Dr. Colbert's complaint 0n the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure. §430.10, subd. (e)] is SUSTAINED with 10 days’ leave to amend. 13 January 2022 Order on Demurrer to Plaintiff's Complaint. Page 6 of 7 Defendant County's demurrer to the eighth cause of action (failure to accommodate) in plaintiff Dr. Colbert's compraint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure, §430.10, subd. (9)] is SUSTAINED with 10 days' leave t0 amend. OCRAT Iudge 0f the Superior Court County ofSanta Clara 13 January 2022 Order on Demurrer to Plaintiff’s Complaint. Page 7 of 7 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE 191 NORTH F1RSTSTREET SANJOSE, CALIFORNLA 951 13 CIVIL DIVISION RE: Heather Colbert, MD vs County of Santa Clara Case Number: 2TCV383442 Simfia Cour! :A uizmmq c: mus Clam PROOF 0F SERVICE DEPUTY ORDER ON DEMURRER TO PLAINTIFF'S COMPLAINT was delivered to the parties listed below the above entitled case as set forth in the sworn declaration below. If you, a party represented by you. or a witness Io be caHed on behalf of that party need an accommodation under the American with Disabililies Act. please contact the Court Administrators office at (408) 882-2700. or use the Court's TDD line (408) 882-2690 or the VolceFI'DD California Re1ay Service (800) 735-2922. DECLARATION 0F SERVICE BY MAIL: | declare that | sewed this notice by enclosing a Hue copy in a sealed envelope. addressed lo each person whose name Is shown below, and by depositing the envelope with postage tully prepaid. in the United States Mail at San Jose, CA on February 14, 2022. CLERK OF THE COURT, by Hientrang Tranthien, Deputy. cc: Kelsey K Ciarfmboli Bohm Law Group Inc 4800 Nonhgate Blvd Suite 210 Sacramento CA 95834 Michael C Serverian Oflice 0f the County Counsel 70 West Heddl'ng St East Wing 9th Floor San Jose CA 951 10- 1770 CW~9027 REV 12/08/15 PROOF OF SERVICE