Jena Peoples vs. Mcafee, Inc.

Motion for Leave to File Cross-Complaint

Cal. Super. - 4th Dist.October 7, 2014

A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Vince M. Verde, CA Bar No. 202472 vince.verde @ogletreedeakins.com Carolyn E. Sieve, CA Bar No. 182763 carolyn.sieve @ogletreedeakins.com Christopher J. Archibald CA Bar No. 253075 christopher.archibald@ogletreedeakins.com Michael E. Olsen, CA Bar No. 307358 michael.olsen @ogletreedeakins.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Park Tower, Suite 1500 695 Town Center Drive Costa Mesa, CA 92626 Telephone: 714.800.7900 Facsimile: 714.754.1298 Attorneys for Defendant ST. JOSEPH HEALTH SYSTEM (erroneously sued as “SAINT JOSEPH HEALTH SYSTEM”) SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE JENA PEOPLES, Case No. 30-2014-00749255 Plaintiff, [Assigned for all purposes to The Honorable Mary Fingal Schulte, Dept.6] VS. DEFENDANT ST. JOSEPH HEALTH MCcAFEE, INC., a Delaware corporation; SAINT| SYSTEM’S NOTICE OF MOTION AND JOSEPH HEALTH SYSTEM,a California MOTION FOR LEAVE TO FILE A corporation; CHRISTIAN ESTES, an individual;] CROSS-COMPLAINT AGAINST and DOES 1-50, inclusive, MCAFEE, INC. AND UNIVERSAL NETWORK SOLUTIONS, INC.; Defendants. MEMORANDUM OF POINTS AND AUTHORITIES Reservation Number: 72507649 Date: January 26, 2017 Time: 1:30 p.m. Dept: C21 Action Filed: October 7, 2014 Trial Date: February 14, 2017 DEFENDANT ST. JOSEPH HEALTH SYSTEM’S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE ACROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO PLAINTIFF AND HER ATTORNEYS OF RECORD: NOTICE IS HEREBY GIVENthat on January 26, 2017at1:30 p.m., in Department C21 of the above-entitled Court, located at 700 Civic Center Drive West, Santa Ana, California, CA 92701, Defendant St. Joseph Health System (erroneously sued as “Saint Joseph Health System”) (“SJHS”) will and hereby does move for an order permitting the filing of a cross-complaint against McAfee, Inc. (“McAfee”) and Universal Network Solutions, Inc. (“UNS”). A copy of the proposed cross-complaint is attached hereto as Exhibit A. This Motion is made on the grounds that the proposed cross-complaint arises out of the same transaction or occurrence as does Plaintiff’s Second Amended Complaint and is a related cause of action, as defined in Code of Civil Procedure §§ 428.10, subd. (b), 428.50. This motion is made on the further ground that allowing such filing is in the interests of justice and will promote the efficient resolution of all existing disputes between the parties. This Motion is based on this Notice, the Memorandum of Points and Authorities in support thereof; the accompanying Declaration of Michael E. Olsen and exhibits attached thereto, including SJHS’ proposed Cross-Complaint; the complete files and records of this action; and on such other evidence and argument as may be presented at the hearing on this Motion. DATED: December 30, 2016 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Vince M. Verde Carolyn E. Sieve Michael E. Olsen Attorneys for Defendant ST. JOSEPH HEALTH SYSTEM 1 DEFENDANT ST. JOSEPH HEALTH SYSTEM’S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Jena Peoples sued McAfee, Inc. and St. Joseph Health System (“SJHS”) jointly and severally for sexual harassment, retaliation, and defamation. The parties propounded and responded to written discovery and took Plaintiff’s deposition. Plaintiff thereafter settled with and voluntarily dismissed McAfee. Following the Court’s denial of McAfee’s motion to quash STHS’ subpoena to depose McAfee’s PMQ, SJHS commenced the PMQ deposition on October 28, 2016. During that deposition, it became apparent that Plaintiff and McAfee were cooperating with each other to prevent STHS from obtaining discovery on its defenses. Plaintiff ultimately terminated the deposition and filed a motion for a protective order, which the Court denied and found to be without substantial justification. McAfee belatedly even filed a joinder in Plaintiff’s motion, which, after the Court denied the protective order motion and sanctioned Plaintiff, McAfee withdrew. To preserve its right to seek indemnity and apportionment from McAfee and Plaintiff’s co- employer, Universal Network Solutions (“UNS”), SJTHS requests leave to file the proposed Cross- Complaint. (See Paragon Real Estate Group ofSan Francisco, Inc. v. Hansen (2009) 178 Cal.App.4™ 177.) Because Plaintiff has essentially completed her non-expert discovery (only an agreed-upon inspection of SJHS’ facility remains), the filing of the Cross-Complaint will not prejudice Plaintiff. On the other hand, if leave is denied, STHS will be prejudiced should it be precluded from preserving its apportionment and indemnity rights in this case. See id., supra, at 187-188. SJHS,therefore, respectfully requests that its motion for leave to file the proposed Cross- Complaint be granted. II. RELEVANT FACTUAL BACKGROUND On or about October 7, 2014, Plaintiff Jena Peoples brought this action against McAfee, SJHS, and individual defendant Christian Estes under California’s Fair Employment and Housing Act (“FEHA”), alleging six causes of action for alleged employment discrimination, retaliation, and sexual harassmentarising out of her employment with McAfee, which assigned her to integrate certain McAfee security products into SJHS’ computer system. (Request for Judicial Notice 1 DEFENDANT ST. JOSEPH HEALTH SYSTEM’S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (“RIN”); Exhibit A, attached to the Declaration of Michael E. Olsen (“Olsen Decl.”).) On or about December 8, 2015, Plaintiff settled her claims against McAfee and filed a request for dismissal of McAfee on or about January 14, 2016. (RJN, Exhibit B.) Neither Plaintiff nor McAfee has filed a good-faith settlement motion. (Olsen Decl., ] 2.) On February 11, 2016, Plaintiff filed a First Amended Complaint (“FAC”). The FAC revised Plaintiff’s pleading to assert a defamation claim against STHS and Estes. (RJN, Exhibit C). 14. On July 11, 2016, Plaintiff filed a Second Amended Complaint (“SAC”) that, in addition to the original FEHA sexual harassment and retaliation, and defamation causes of action alleged in the FAC, asserted new causes of action against SJHS for violation of California Civil Code sections 51, 51.5, 51.9 and 52(b). (RIN, Exhibit D). Plaintiff eliminated McAfee and Estes from her amended pleading. The Court sustained STHS’ demurrers to all but one of the new causes of action. Thus, of the four new causes of action under the California Civil Code, only the cause of action for sexual harassment in violation of Civil Code section 51.9 has survived. (RJN, Exhibit E.) SJHS has probable cause to believe that former co-defendant McAfee is cooperating with Plaintiff to shift total liability to Defendant. First, neither McAfee nor Plaintiff have sought a determination that they have entered into a good-faith settlement pursuant to Code of Civil Procedure section 877.6. (Olsen Decl., 2.) Second, McAfee and Plaintiff openly colluded during SJTHS’ October 28, 2016 deposition of McAfee’s PMQ, to obstruct Defendant’s questioning of the witness about the noticed topics, and in particular, about whether McAfee investigated, or failed to investigate, complaints by Plaintiff that McAfee acknowledged it received. (See, e.g., Exhibit F to Olsen Decl., Deposition of Varshi Challa as McAfee’s PMQ, at 45:4-15 [both Plaintiff and McAfee refusing to permit the witness to testify regarding McAfee’s sexual harassment policy].) For example, counsel for both Plaintiff and McAfee cooperated to prevent the McAfee PMQ from testifying about McAfee’s awareness of any complaints by Plaintiff: MR. ARCHIBALD: So your testimony is that McAfee was never aware that there was a complaint by Ms. Peoples about Mr. Estes? Is that your testimony? 2 DEFENDANT ST. JOSEPH HEALTH SYSTEM’S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MS. RYAN: MR. ORTIZ: MS. RYAN: BY MR. ARCHIBALD: MS. RYAN: BY MR. ARCHIBALD: MS. RYAN: MR. ORTIZ: MS. RYAN: BY MR. ARCHIBALD: MS. RYAN: Objection. Argumentative Asked and answered. Asked and answered. Is that your testimony? You only need to, ifyou have something more to say than whatyou've already said, say it. Otherwise, I'm instructing you not to answer. Is that your testimony? Objection. Mischaracterizes her previous testimony. Join You don't need to answer unless you have something more to say. I'm instructing you not to answer unless there's something more than what you've previously testified to on the subject. You need to answer the question because your testimony is not clear. No. I've instructed her not to answer, Counsel. (Olsen Decl., Ex. F [Depo. Tr. at 72:17-73:14]). Similarly, Plaintiff and McAfee openly colluded on the record to prevent Defendant’s discovery regarding McAfee’s harassment policy: MR. ARCHIBALD: MS. RYAN: MR. ORTIZ: MS. RYAN: MR. ORTIZ: So, in general, what's McAfee's policy with respect to what should happen where McAfee receives a complaint about sexual harassment? Object. Beyond the scope of the PMQ. Are you going to allow her to answer? Isn't this the same area where you -- in which you want to seek a protective order? Yes. 3 DEFENDANT ST. JOSEPH HEALTH SYSTEM’S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MS. RYAN: Okay. So let's move on to the next question. (Olsen Decl., Ex. F [Depo. Tr. at 79:6-18]). This obstruction of STHS’ right to discovery indicates McAfee’s collusion with Plaintiff, as well as its attempt to avoid responsibility for the alleged harm suffered by Plaintiff. Ultimately, for the first time during the PMQ deposition on October 28, 2016, McAfee admitted on the record that it did not conduct an investigation into Plaintiff’s complaints, even though it admits it received such complaints, and its policy requires the investigation of all such complaints. (Id. at 47:11-21; 52:2-9.) The McAfee PMQ’s testimony confirmed UNS employee Lorie Davies-Morris’ testimony that (1) McAfee had taken the position that Plaintiff should report harassment to McAfee and that (2) McAfee was reluctant to place Plaintiff back to work because McAfee did not like Plaintiff's complaints about harassment and that McAfee believed that Plaintiff’s conduct contravened McAfee’s harassment policy pertaining to its employees. (See Exhibit G to Olsen Decl. (Deposition of Lorie Davies-Morris), at 39:6-42:8.) In sum, McAfee’s settlement of its liability in this action,its failure to move for a good- faith determination regarding its settlement, along with its collusive and obstructionist conduct at the deposition of its Person Most Qualified deposition on October 28, 2016, and its admissions of both retaliatory animus andfailure to investigate complaints that it acknowledges it received, are all evidence that it is liable to Plaintiff, and therefore shares in any of SJHS’ alleged liability to Plaintiff, despite Plaintiff’s agreement to dismiss McAfee. As to UNS, its relationship with McAfee, including its role as a staffing company to McAfee, makes it a proper party to this litigation. At deposition UNS’ Chief Executive Officer, Matt Haney, testified that UNS has had a relationship with McAfee since 2008, that Jena Peoples was a “resource” it placed with McAfee, and that UNS was in a contractual relationship with McAfee. (See Exhibit H to Olsen Decl. (Deposition of Matt Haney), at 11:25-12:4; 12:19-24; 13:21-14:15, 15:11-15; 24:10-25:15, Exhibit 4 attached thereto.) Because of UNS’ contractual obligation to indemnify McAfee and its customers, it is also a necessary party in this litigation. Specifically the UNS contract expressly obligates UNS to indemnify McAfee’s customers, such as SJHS, from any loss, damage, claim, liability, and cost (including attorney’s fees), arising from 4 DEFENDANT ST. JOSEPH HEALTH SYSTEM’S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 employment claims: Provider [UNS] shall indemnify and hold McAfee and its directors, officers, customers, and employees (collectively “McAfee Affiliates”), harmless from any loss, damage, claim, liability, and cost (including reasonable attorneys’ fees) arising from: (i) the wrongful acts or omissions of the Provider [UNS] or its personnel (including subcontractors); (ii) damage to any property or injury to or death of any person in connection with the performance of the Services; (iii) employment claims (Section 6); and (iv) claims of Intellectual Property Right Infringement. (Exhibit I to Olsen Decl., Master Services Agreement) (Emphasis added.) UNS has not responded to SJHS’ tender pursuant to the McAfee/UNS indemnity agreement. (Olsen Decl., 13.) Because SJHS was a McAfee customer, and because the harm that SJHS has suffered arose from the failure of McAfee and/or UNS to indemnify STHS, McAfee’s and UNS’ inclusion as Cross-Defendants in this litigation is not only appropriate but will fully and efficiently resolve all disputes between the parties arising out of Plaintiff’s claims. SJHS has not delayed in bringing the instant motion as any delay in bringing the instant motion, or in proceeding to trial as scheduled, is the result of McAfee’s resistance to producing a PMQ, McAfee’s and Plaintiff’s meritless objections and obstruction of the deposition of the McAfee PMQ, and McAfee’s production of a PMQ who lacked knowledge regarding the relevant noticed topics at the earlier-noticed dates for the deposition. III. LEGAL STANDARD California Code of Civil Procedure section 428.10 reads in pertinent part that: [a] party against whom a cause of action has been asserted in a complaint . . . may file a cross-complaint setting forth. .. (b) [a]ny cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action,if the cause of action asserted in his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him . . In turn, California Code of Civil Procedure section 428.50(c) provides that “[a] party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest ofjustice at any time during the course of the 5 DEFENDANT ST. JOSEPH HEALTH SYSTEM’S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 action.” (Emphasis added.) IV. LEGAL ARGUMENT A. The causes of action asserted in SJHS’ proposed Cross-Complaint arise from the same transaction or occurrence as that at issue in the Second Amended Complaint. A defendant may cross-complain against any person from whom they seek equitable indemnity. Defendants need only allege that the harm for which they are being sued is attributable, at least in part, to the cross-defendant. (American Motorcycle Ass'n v. Sup.Ct. (Viking Motorcycle Club) (1978) 20 Cal.3d 578, 607; Paragon Real Estate Group of San Francisco, Inc. v. Hansen (2009) 178 Cal.App.4th 177, 182.) Further, “[c]ross complaints for comparative equitable indemnity would appear virtually always transactionally related to the main action.” (Time for Living, Inc. v. Guy Hatfield Homes/All American Develop. Co. (1991) 230 Cal.App.3d 30, 38.) As outlined above, the harm allegedly suffered by Plaintiff is at least partially, if not wholly, attributable to the conduct of McAfee in failing to take any action in accord with its own policies, reassigning Plaintiff, and failing to assist with SJHS’ inquiry into the dispute between Plaintiff and Estes. Accordingly, McAfee’s conduct is therefore related within the meaning of Code of Civil Procedure section 428.10, subd. (b)(1). Further, because UNS and McAfee contracted to deliver services to Defendant, a contract that resulted in the assignment of Plaintiff to SJHS’ worksite, and because UNS is obligated to indemnify McAfee’s customers, including SJHS, for claims arising from that relationship, the claims asserted in the Cross-Complaint arise from the same series of occurrences as those in Plaintiff’s SAC. B. Granting SJHS leave to file its proposed Cross-Complaint will further the interests of justice. Code of Civil Procedure §428.50, subdivision (b) permits the filing of a cross-complaint at “any time during the course of the action.” The courts have construed this to permit the filing of a cross-complaint at any time before the entry of final judgment on the underlying complaint. (See City of Hanford v. Sup. Ct. (1989) 208 Cal.App.3d 580, 587.) Because there has been no final judgment in this action, and indeed because Plaintiff’s operative complaint, the SAC, was filed 6 DEFENDANT ST. JOSEPH HEALTH SYSTEM’S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 merely five months ago, this motion has been brought within the time permitted by section 428.50, subd. (b). Further, leave to file a cross-complaint would further the policy interests in permitting the filing of a cross-complaint. First, SJHS’ affirmative defense in seeking apportionment and equitable indemnity in its answer to the SAC is rendered useless by Plaintiff’s voluntary dismissal of her action against former co-Defendant McAfee, Inc. (See Hansen, supra, 178 Cal.App.4th at 187-188 [allowing cross-complaint where the defendant’s affirmative defense of apportionment of fault “would be rendered useless” where the plaintiff could voluntarily choose to dismiss her cause of action against a co-defendant as a result of a collusive confidential settlement. ] Second,the joining of McAfee and UNS through Defendant’s cross-complaint is supported by relevant public policy considerations: Rules permitting a joint tortfeasor to cross-complain against another joint tortfeasor for equitable indemnity ‘promote the public policy considerations underlying multiparty tort litigation: the maximization of recovery to the injured party; settlement of the injured party’s claim; and equitable apportionment of liability among concurrent tortfeasors. Courts have consistently adopted procedures promoting these policies and have rejected procedures which would undermine these polices. (Id. at 189.) It would be a waste of judicial resources, and undermine the purposes of the cross- complaint, if STHS was forced to litigate its claims against McAfee and UNS in a separate suit or forum. The foregoing promotes the well-established rule of allowing parties to settle all of their differences in a single lawsuit, to enable a final and binding judgment upon all the matters in dispute between the parties, and to avoid a multiplicity of suits. Nomellini Constr. Co. v. Harris, 272 Cal. App. 2d 352, 356-357(1969). In this case, the interests of justice and judicial economy will also be effectuated by granting the instant Motion. Namely, it will promote the efficient resolution of all claims because the claims involve the same Parties and will require many of the same witnesses at trial. See, e.g., City of Hanford v. Superior Court, 208 Cal. App. 3d 580, 587 (1989) (“The reason for allowing cross-complaints is to have a complete determination of a controversy among the parties in one action, thus avoiding circuity of action and duplication of time and effort”). Finally, the filing of the proposed Cross-Complaint is not expected to prejudice Plaintiff. 7 DEFENDANT ST. JOSEPH HEALTH SYSTEM’S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 All of the originally named defendants, including McAfee, have answered, and have propounded and responded to written discovery on the causes of action asserted against them, and defendants have deposed Plaintiff. In addition, Plaintiff has deposed McAfee witnesses, including Varshi Challa (as a percipient witness and as McAfee’s PMQ), Bin Du, Harvey Bryant, Aaron Yarnal, and Aaron Davies-Morris, and UNS witnesses, including Matt Haney, Cara Lundrigan, and Lorie Davies-Morris. The only remaining non-expert discovery is the completion of the McAfee PMQ deposition on January 12, 2017 and Plaintiff’s site inspection, to which SJTHS has agreed. Accordingly, the interests of justice militate in favor of allowing the proposed Cross- Complaint. Vv. CONCLUSION The proposed Cross-Complaint arises out of the same transaction or occurrence as plaintiff’s Second Amended Complaint. In the interests of justice and based on facts obtained recently in discovery, Defendant respectfully requests that the Court grant this Motion and allow it to file its Cross-Complaint. DATED: December 30, 2016 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. FP Vince M. Verde Carolyn E. Sieve Christopher J. Archibald Michael E. Olsen Attorneys for Defendant and Cross-Complainant, ST. JOSEPH HEALTH SYSTEM 8 DEFENDANT ST. JOSEPH HEALTH SYSTEM’S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES EXHIBIT A A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Vince M. Verde, CA Bar No. 202472 vince.verde @ogletreedeakins.com Carolyn E. Sieve, CA Bar No. 182763 carolyn.sieve @ogletreedeakins.com Christopher J. Archibald CA Bar No. 253075 christopher.archibald@ogletreedeakins.com Michael E. Olsen, CA Bar No. 307358 michael.olsen @ogletreedeakins.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. Park Tower, Suite 1500 695 Town Center Drive Costa Mesa, CA 92626 Telephone: 714.800.7900 Facsimile: 714.754.1298 Attorneys for Defendant ST. JOSEPH HEALTH SYSTEM (erroneously sued as “SAINT JOSEPH HEALTH SYSTEM”) SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE JENA PEOPLES, Case No. 30-2014-00749255 Plaintiff, [Assigned for all purposes to The Honorable Mary Fingal Schulte, Dept.6] Vs. MCAFEE, INC., a Delaware corporation; ST. JOSEPH HEALTH SYSTEM'S CROSS- SAINT JOSEPH HEALTH SYSTEM, a COMPLAINT FOR: California corporation; CHRISTIAN ESTES, an individual; and DOES 1-50, inclusive, 1) NEGLIGENCE 2) BREACH OF CONTRACT Defendants. 3) BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING 4) IMPLIED CONTRACTUAL INDEMNITY 5) EQUITABLE INDEMNITY (Caption Continued on Next Page) 6) CONTRIBUTION 7) APPORTIONMENT 8) CONTRACTUAL INDEMNITY 9) DECLARATORY RELIEF Action Filed: October 7, 2014 ST. JOESPH HEALTH SYSTEM'S CROSS-COMPLAINT A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Trial Date: February 14, 2017 ST. JOSEPH HEALTH SYSTEM,a California corporation, Cross-Complainant, VS. MCAFEE, INC., a Delaware corporation; UNIVERSAL NETWORK SOLUTIONS, INC., a Minnesota corporation; and ROES 1 through 50, inclusive. Cross-defendants. Cross-Complainant ST. JOSEPH HEALTH SYSTEM ("Cross-Complainant") alleges as follows: 1. ST. JOSEPH HEALTH SYSTEM is, and at all times mentioned herein was, a corporation duly organized and existing under and by virtue of the laws of the State of California, with its principal place of business in the State of California, County of Orange. 2. Cross-Complainant is informed and believes, and based thereon alleges, that Cross- Defendant MCAFEE, INC., also known as Intel Security (“MCAFEE”), at all relevant times herein, was, and is now, a corporation duly organized and existing under and by virtue of the laws of the State of Delaware, with its principal place of business in the State of California, and is authorized to conduct business in the State of California. 3. Cross-Complainant is informed and believes, and based thereon alleges, that Cross- Defendant UNIVERSAL NETWORK SOLUTIONS, INC. (“UNS”), at all relevant times herein, 2 ST. JOSEPH HEALTH SYSTEM'S CROSS-COMPLAINT A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 was, and is now, a corporation duly organized and existing under and by virtue of the laws of the State of Minnesota and conducts business in the State of California. 4, Cross-Defendants ROES 1 through 50, inclusive, are sued herein under fictitious names. Their true names and capacities are unknown to Cross-Complainant. When their true names and capacities are ascertained, Cross-Complainant will amend this Cross-Complaint by inserting their true names and capacities herein. Cross-Complainant is informed and believes and thereon alleges that each ofthe fictitiously named Cross-Defendantsis responsible in some manner for the occurrences herein alleged, and that Cross-Complainant's damages as herein alleged were proximately caused by those Cross-Defendants. Each reference in this Cross-Complaint to "Cross- Defendant," "Cross-Defendants," or a specifically named Cross-Defendant refers also to all Cross- Defendants sued under fictitious names. 5. Cross-Complainant is informed and believes, and based thereon alleges, that each of the Cross-Defendants, including the fictitiously named Cross-Defendants, is responsible, in some manner, for the occurrences herein alleged, and that Cross-Complainant's damages, as herein alleged, were caused by their conduct. 6. On or about October 7, 2014, PlaintiffJENA PEOPLES, an individual (“Plaintiff”), filed a Complaint styled as Jena Peoples v. McAfee, Inc. et al., Orange County Superior Court Case Number 30-2014-00749255 against MCAFEE, Cross-Complainant, and individual defendant Christian Estes. 7. Cross-Complainant is informed and believes, and based thereon alleges, that Plaintiff, at all times relevant to her lawsuit, resided in Orange County and was employed by UNS and MCAFEE, which assigned her as a subject-matter expert in MCAFEE computer security software products to integrate certain MCAFEE computer security solutions into Cross- Complainant’s computer system. The integration ofMCAFEE computer security software products into Cross-Complainant’s computer system was pursuant to a written agreement between MCAFEE and Cross-Complainant entitled “Master License, Hardware and Maintenance Agreement.” 111 3 ST. JOSEPH HEALTH SYSTEM'S CROSS-COMPLAINT A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8. Cross-Complainant is informed and believes, and based thereon alleges, that during the period that Plaintiff was working on the MCAFEE implementation for Cross-Complainant, Plaintiff communicated a sexual harassment complaint to MCAFEE managers, including Varshi Challa and Bin Du. Rather than take action pursuant to MCAFEE’s harassment policy, MCAFEE advised Plaintiff not to say anything to Cross-Complainant and not to have any further contact with Cross-Complainant’s employees. Further, following Estes’ own complaint about Plaintiff, MCAFEE immediately reassigned Plaintiff to other MCAFEE projects. MCAFEE and UNS, in addition, deliberately hampered Cross-Complainant’s efforts to resolve an apparent interpersonal conflict between Plaintiff and Estes by failing to communicate to Plaintiff that she could speak with the individual investigating the dispute and by failing to take any steps to ensure that Plaintiff’s grievances communicated to MCAFEE could be addressed. 9. Cross-Complainant is informed and believes, and based thereon alleges, that MCAFEE and UNS did not intend to return Plaintiff to the MCAFEE implementation project for Cross-Complainant because oftheir perception that Plaintiff would endanger MCAFEE’s relationship with the client on a lucrative MCAFEE project. MCAFEE further aggravated Plaintiffs damage by refusing to place her on any MCAFEE projects at all when MCAFEE learned that Plaintiff had filed the instant lawsuit. 10. By her Complaint, Plaintiff sought damages and otherrelief against both MCAFEE and Cross-Complainant pursuant to the following causes of action: (1) sexual harassment in violation of the Fair Employment and Housing Act, California Government Code sections 12900 — 12996 (“FEHA”); (2) gender discrimination in violation of FEHA; (3) retaliation in violation of FEHA; (4) retaliation in violation of California Labor Code Sections 98.6 and 1102.5; (5) failure to prevent harassment and discrimination in violation of FEHA; and (6) adverse action in violation of public policy. The Complaint also alleged causes of action for defamation against MCAFEE, and invasion of privacy and negligent hiring against Cross-Complainant and Estes. 11. Cross-Complainant is informed and believes, and based thereon alleges, that on or about December 8, 2015, Plaintiff settled her claims against MCAFEE, and Plaintiff and MCAFEE entered into a settlement agreement. Plaintiff filed a request for dismissal of MCAFEE on or about 4 ST. JOSEPH HEALTH SYSTEM'S CROSS-COMPLAINT A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 January 14, 2016. Cross-Complainantis further informed and believes, and based thereon alleges, that MCAFEE and Plaintiff are cooperating for the benefit of MCAFEE and to the detriment of Cross-Complainant. 12. On February 11, 2016, Plaintiff filed a First Amended Complaint (“FAC”). The FAC revised Plaintiff’s pleading to assert a defamation claim against Cross-Complainant and Estes. 13. Cross-Complainant is informed and believes, and based thereon alleges, that in or about April 2016, Plaintiff settled her claims against Estes and filed a request for dismissal of Estes on or about April 12, 2016. 14. On or about April 25, 2016, Plaintiff dismissed with prejudice her invasion of privacy and negligent hiring causes of action. 15. On or about June 21, 2016, Plaintiff dismissed without prejudice her causes of action for adverse action in violation of public policy, discrimination in violation of FEHA, and retaliation under Labor Code Sections 98.6 and 1102.5. The FAC’s remaining causes of action for sexual harassment in violation of FEHA,retaliation in violation of FEHA,failure to prevent harassment, and defamation remained unchanged. 16. On July 11, 2016, Plaintiff filed a Second Amended Complaint (“SAC”) that, in addition to the original FEHA sexual harassment and retaliation, and defamation causes of action alleged in the FAC, asserted new causes of action against Cross-Complainant for violation of California Civil Code sections 51, 51.5, 51.9 and 52(b). Following Cross-Complainant’s demurrer to the new causes of action in the SAC, the Court sustained Cross-Complainant’s demurrers to all but one of the new causes of action. Thus, of the four new causes of action under the California Civil Code, only the cause of action for sexual harassment in violation of Civil Code section 51.9 has survived. 17. Without making any admissions ofliability or otherwise herein, expressly or impliedly, the allegations of Plaintiff's verified pleadings, the Complaint, FAC, and SAC, are incorporated into this Cross-Complaint by this reference solely for the purpose of showing Plaintiffs factual allegations and the nature of her underlying claims. 5 ST. JOSEPH HEALTH SYSTEM'S CROSS-COMPLAINT A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FIRST CAUSE OF ACTION (Negligence Against All Cross-Defendants and Roes 1-50) 18. Cross-Complainant repeats and re-alleges the allegations contained in paragraphs 1 through 17 of this Cross-Complaint, and incorporates said paragraphs by this reference as though fully set forth herein. 19. Cross-Defendants, and each of them, were under a duty to use reasonable care in the performance oftheir contractual and statutory obligations. 20. Cross-Complainant is informed and believes, and based thereon alleges that Cross- Defendant MCAFEE claims to have a practice of investigating complaints of harassment and other violations of the law. On or about October 28, 2016, MCAFEE produced a corporate representative for deposition who admitted that MCAFEE conducted no investigation of Plaintiff’s complaints. 21. Cross-Complainantis informed and believes, and based thereon alleges that MCAFEE,rather than investigating complaints it acknowledgesit received by Plaintiff, MCAFEE acted in a mannerto the detriment of Plaintiff which form the basis of the meritless claims asserted by Plaintiff against Cross-Complainant. 22. Cross-Defendants, and each of them, acted negligently and breached their duty of reasonable care by failing to communicate to Plaintiff that she could speak with the individual investigating the dispute and by failing to take any steps to ensure that Plaintiff’s grievances communicated to MCAFEE could be addressed. Further, Cross-Defendants breached their duty of reasonable care by failing to indemnify Cross-Complainant. 23. Cross-Complainant has incurred substantial losses and will continue to incur losses as a direct and proximate result of Cross-Defendants’ negligence. Specifically, Cross-Complainant has incurred attorney’s fees and costs associated with Plaintiffs suit. In addition, Cross- Complainant may be forced to make a monetary payment to Plaintiff by way of settlement or an award by the court. At the time of contracting, and at the time of Plaintiff’s complaints to Cross- Defendants,it was reasonably foreseeable that Cross-Defendants’ failure to act would cause Cross- Complainant to incur these losses. 6 ST. JOSEPH HEALTH SYSTEM'S CROSS-COMPLAINT A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SECOND CAUSE OF ACTION (Breach of Contract Against MCAFEE and Roes 1-50) 24. Cross-Complainant repeats and re-alleges the allegations contained in paragraphs 1 through 17 and 18 through 23 of this Cross-Complaint, and incorporates said paragraphs by this reference as though fully set forth herein. 25. In or about June 27, 2012, MCAFEE and Cross-Complainant entered into a Master License, Hardware and Maintenance Agreement (“Master Agreement”), by which Cross- Complainant purchased MCAFEE branded software licenses, MCAFEE technical support, and MCAFEE hardware. 26. Without waiving the confidentiality of certain provisions of the Master Agreement, Cross-Complainant alleges that, at paragraph 10 of the Master Agreement, MCAFEE “retain[ed] responsibility for any work-related/on-the-job injuries sustained by its employees.” Cross- Complainant is informed and believes, and based thereon alleges, that MCAFEE,therefore, retained responsibility for any work-related/on-the-job injuries sustained by Plaintiff, one ofits employees. 27. Cross-Complainant is informed and believes, and based thereon alleges, that MCAFEE breached the Master Agreement by, without limitation: failing to address Plaintiffs complaints, failing to investigate or to facilitate an investigation involving Plaintiff, terminating Plaintiff’s assignment on the MCAFEE implementation project for Cross-Complainant, and cooperating to shift responsibility for Plaintiff’s alleged injuries to Cross-Complainant. 28. Cross-Complainant has performed all conditions, covenants, and promises under the Master Agreement, except as excused or prevented by the acts of MCAFEE. 29. As adirect result of MCAFEE’s breach of the Master Agreement, Cross- Complainant has suffered damage in a sum according to proof at trial, but in excess of this Court’s jurisdictional minimum. 111. 111 111 7 ST. JOSEPH HEALTH SYSTEM'S CROSS-COMPLAINT A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THIRD CAUSE OF ACTION (Breach of Implied Covenant of Good Faith and Fair Dealing Against MCAFEE and Roes 1-50) 30. Cross-Complainant repeats and re-alleges the allegations contained in paragraphs 1 through 17, 18 through 23, and 24 through 29 of this Cross-Complaint, and incorporates said paragraphs by this reference as though fully set forth herein. 31. Cross-Complainant is informed and believes, and based thereon alleges, that the Master Agreement between Cross-Complainant and MCAFEE contained an implied covenant of good faith and fair dealing, as required by California law. This implied covenant required MCAFEEto perform the terms and conditions of the Master Agreementfairly and in goodfaith, and to refrain from doing any act that would deprive Cross-Complainant of the benefits of the contract. 32. Cross-Complainant substantially performed all the duties and conditions of the Master Agreement. Cross-Complainant is informed and believes, and based thereon alleges, that MCAFEE knew Cross-Complainant had fulfilled all of its duties and conditions under the contract. 33. Cross-Complainant is informed and believes, and based thereon alleges, that Cross- Complainant breached the implied covenant of good faith and fair dealing under the Master Agreement by, without limitation: failing to address Plaintiff’s complaints, failing to investigate or to facilitate an investigation involving Plaintiff, terminating Plaintiff’s assignment on the MCAFEE implementation project for Cross-Complainant, and cooperating to shift responsibility for Plaintiff’s alleged injuries to Cross-Complainant. 34. Such conduct by MCAFEE was in breach of the implied covenant of good faith and fair dealing. 35. Asa proximate result of MCAFEE’s breach of the implied covenant of good faith and fair dealing, Cross-Complainant has suffered, and continues to suffer damages in an amount to be shown according to proof. 111 111 8 ST. JOSEPH HEALTH SYSTEM'S CROSS-COMPLAINT A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 FOURTH CAUSE OF ACTION (Implied Contractual Indemnity Against MCAFEE and Roes 1-50) 36. Cross-Complainant repeats and re-alleges the allegations contained in paragraphs 1 through 17, 18 through 23, 24 through 29, and 30 through 35 of this Cross-Complaint, and incorporates said paragraphs by this reference as though fully set forth herein. 37. Cross-Complainant is informed and believes, and based thereon alleges, that the Master Agreement necessarily implied an obligation to perform the services involved in a proper manner and to discharge foreseeable damages resulting from improper performance of the Master Agreement. 38. Cross-Complainant is informed and believes, and based thereon alleges, that MCAFEEfailed to use reasonable care in performing its contractual duties under the Master Agreement. 39. Cross-Complainant is informed and believes, and based thereon alleges, that MCAFEE breached the Master Agreement by, without limitation: failing to address Plaintiff’s complaints, failing to investigate orto facilitate an investigation involving Plaintiff, terminating Plaintiff’s assignment on the MCAFEE implementation project for Cross-Complainant, and cooperating to shift responsibility for Plaintiff’s alleged injuries to Cross-Complainant. 40. Cross-Complainant is informed and believes, and based thereon alleges, that MCAFEE'’sfailure to use reasonable care in performing its contractual duties under the Master Agreement would be a substantial factor in causing the alleged damages, if any, sustained by the Plaintiff. FIFTH CAUSE OF ACTION (Equitable Indemnity Against All Cross-Defendants and Roes 1-50) 41. Cross-Complainant repeats and re-alleges the allegations contained in paragraphs 1 through 17, 18 through 23, 24 through 29, 30 through 35, and 36 through 40 of this Cross- Complaint, and incorporates said paragraphs by this reference as though fully set forth herein. 42. Cross-Complainant is informed and believes, and based thereon alleges, that Cross- Defendants, and each of them, were responsible, in whole or in part, for the alleged damages, if 9 ST. JOSEPH HEALTH SYSTEM'S CROSS-COMPLAINT A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 any, sustained by the Plaintiff. 43. If Cross-Complainant is found in some manner responsible to Plaintiff or to anyone else as a result of the incidents and occurrences described in the operative pleading, the SAC, said liability would be based solely upon a derivative form ofliability not resulting from Cross- Complainant's conduct, but only from an obligation imposed by law, and, therefore, Cross- Complainant would be entitled to complete indemnity from Cross-Defendants and each of them. 44. If Cross-Complainant is found in some manner responsible to Plaintiff or to anyone else as a result of the incidents and occurrences described in the operative pleading, the SAC, said liability would be joint and several between or among Cross-Complainant and Cross-Defendants. SIXTH CAUSE OF ACTION (Contribution Against All Cross-Defendants and Roes 1-50) 45. Cross-Complainant repeats and re-alleges the allegations contained in paragraphs 1 through 17, 18 through 23, 24 through 29, 30 through 35, 36 through 40 and 41 through 44 of this Cross-Complaint, and incorporates said paragraphs by this reference as though fully set forth herein. 46. If Cross-Complainant is found liable to Plaintiff, the liability of Cross-Complainant would be derivative, while the conduct of Cross-Defendants, and each of them, was primary, active, and tortious. By virtue of these facts, Cross-Complainant is entitled to contribution from Cross-Defendants, and each of them, for the amount of any judgment which is rendered against Cross-Complainant in proportion to the liability of Cross-Defendants, and each of them. 47. By reason of the foregoing in equity and good conscience, Cross-Complainantis also entitled to recover from Cross-Defendants, and each of them, the costs of defending said action, including attorney’s fees, investigation costs and court costs. SEVENTH CAUSE OF ACTION (Apportionment Against All Cross-Defendants and Roes 1-50) 48. Cross-Complainant repeats and re-alleges the allegations contained in paragraphs 1 through 17, 18 through 23, 24 through 29, 30 through 35, 36 through 40, 41 through 44, and 45 through 47 of this Cross-Complaint, and incorporates said paragraphs by this reference as though 10 ST. JOSEPH HEALTH SYSTEM'S CROSS-COMPLAINT A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 fully set forth herein. 49. Cross-Complainant is informed and believes, and based thereon alleges, that Cross- Defendants, and each of them, were responsible, in whole or in part, for the alleged damages, if any, sustained by the Plaintiff. Therefore, if judgment is obtained against Cross-Complainant, Cross-Defendants, and each of them, should be required to: a. Pay a share of said judgment which is in proportion to the comparative negligence or other tortious conduct of those Cross-Defendants in causing Plaintiffs alleged damages; and b. Reimburse Cross-Complainant for any payments made to Plaintiff in excess of Cross-Complainant's proportional share of Cross-Defendants’ liability, negligence, or tortious conduct. EIGHTH CAUSE OF ACTION (Contractual Indemnity Against UNS and Roes 1-50) 50. Cross-Complainant repeats and re-alleges the allegations contained in paragraphs 1 through 17, 18 through 23, 24 through 29, 30 through 35, 36 through 40, 41 through 44, 45 through 47, and 48 through 49 of this Cross-Complaint, and incorporates said paragraphs by this reference as though fully set forth herein. 51. Cross-Complainant is informed and believes, and based thereon alleges, that in or about November 2009, UNS entered into an agreement with MCAFEE for the provision of services to MCAFEE (the “UNS/MCAFEE Agreement”). This agreement was renewed in or about May 2012. 52. Cross-Complainant is informed and believes, and based thereon alleges, that the UNS/MCAFEE Agreement allows UNS to enter into relationships with “subcontractors” in furtherance of the services provided to MCAFEE. UNS entered into an employment, contractor, or consulting agreement with Plaintiff JENA PEOPLESin or about November 2012. 53. Cross-Complainant is informed and believes, and based thereon alleges, that on or about December 17, 2012, UNS contracted with MCAFEE by way of a Statement of Work (“SOW”) to deliver services on behalf ofMCAFEE to Cross-Complainant. UNS and MCAFEE 11 ST. JOSEPH HEALTH SYSTEM'S CROSS-COMPLAINT A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 agreed that Plaintiff JENA PEOPLES would be the local resource to provide the services subject to the SOW. 54. Cross-Complainant is informed and believes, and based thereon alleges, that the UNS/MCAFEE Agreement, at Section 12, expressly obligates UNS to indemnify MCAFEE’s customers such as Cross-Complainant from any loss, damage, claim,liability, and cost (including attorney’s fees), arising from employment claims: indemnify and hold McAfee and its directors, officers, customers, and employees (collectively “McAfee Affiliates”), harmless from any loss, damage, claim, liability, and cost (including reasonable attorneys’ fees) arising from: (1) the wrongful acts or omissions of the Provider [UNS] or its personnel (including subcontractors); (ii) damage to any property or injury to or death of any person in connection with the performance of the Services; (iii) employment claims (Section 6); and (iv) claims of Intellectual Property Right Infringement. (Emphasis added.) 55. Further, Section 6 of the UNS/MCAFEE Agreement states: Provider [UNS] will indemnify and hold MCAFEE harmless against any claims made with respect to employment or income taxes, national insurance or similar taxes or contributions, including penalties and interest, arising out of the work performed under this Agreement or any SOW.” 56. Finally, Section 11 of the UNS/MCAFEE Agreement states that UNS “shall comply with (and ensure that its subcontractors are in compliance with) McAfee policies, including as applicable . . . [McAfee’s] Sexual Harassment” policy. 57. Cross-Complainant is informed and believes, and based thereon alleges, that the UNS/MCAFEE Agreement provides that UNS will be responsible and liable for any sums that Cross-Complainant, an express beneficiary of the UNS/MCAFEE Agreement, may become legally obligated for in connection with UNS or MCAFEE’sfailure to comply with its agreements with Plaintiff, Cross-Complainant, or each other, as well as applicable state laws that are the subject of Plaintiff JENA PEOPLES’ lawsuit. 12 ST. JOSEPH HEALTH SYSTEM'S CROSS-COMPLAINT A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 58. Cross-Complainant is informed and believes, and based thereon alleges, that the indemnification clause of the UNS/MCAFEE Agreement remains in full force and effect past the termination of the Agreement. 59. In connection with the claims asserted against Cross-Complainant by Plaintiff, Cross-Complainant demanded indemnity from UNS before filing this Cross-Complaint. UNS has refused to accept Cross-Complainant’s tender. 60. As a result of the actions taken by UNS, Cross-Complainant has suffered and continues to suffer harm and damages including attorney’s fees and defense costs and the possible cost of judgment or settlement. 61. Cross-Complainant is informed and believes, and based thereon alleges, that under the terms of the UNS/MCAFEE Agreement, UNS is legally responsible for any liability that Cross- Complainant may incur in this action. NINTH CAUSE OF ACTION (Declaratory Relief Against All Cross-Defendants and Roes 1-50) 62. Cross-Complainant repeats and re-alleges the allegations contained in paragraphs 1 through 17, 18 through 23, 24 through 29, 30 through 35, 36 through 40, 41 through 44, 45 through 47, 48 through 49, and 50 through 61 of this Cross-Complaint, and incorporates said paragraphs by this reference as though fully set forth herein. 63. If Plaintiff sustained damagesas alleged in the SAC, these damages were caused, entirely or in part, by Cross-Defendants, and each of them. 64. An actual controversy has arisen and now exists between Cross-Complainant and Cross-Defendants and that Cross-Complainant contends, and Cross-Defendants deny, the following: a. That, as between Cross-Complainant and Cross-Defendants, responsibility, if any, for the damages claimed by Plaintiff herein rests entirely or partially on Cross-Defendants; and, b. That, as a result, Cross-Defendants are obligated to partially or fully indemnify Cross-Complainant for any sums that Cross-Complainant may be compelled to pay as 13 ST. JOSEPH HEALTH SYSTEM'S CROSS-COMPLAINT A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the result of any damages, judgment, or other awards recovered by Plaintiff. 65. Cross-Complainant seeks a judicial determination of the respective rights and duties of Cross-Complainant and Cross-Defendants with respect to the damages claimed in the SAC. In particular, Cross-Complainant desires a declaration of the comparative liability of Cross- Complainant and Cross-Defendants for these alleged damages; a declaration of Cross-Defendants’ responsibility for comparative indemnity to Cross-Complainant for any sums that Cross- Complainant may be compelled to pay and for which Cross-Defendants are determined responsible, entirely or in part; a declaration regarding MCAFEE’s obligations to Cross- Complainant as set forth in the Master Agreement; and a declaration regarding UNS’ obligations to Cross-Complainant as set forth in the UNS/MCAFEE Agreement. 66. Such a declaration is necessary and appropriate at this time in order that Cross- Complainant may ascertain its rights and duties with respect to Plaintiff's claim for damages. Furthermore, the claim of Plaintiff and the claim of Cross-Complainant arise out of the same transaction, and determination of both in one proceeding is necessary and appropriate in order to avoid the multiplicity of actions that would result if Cross-Complainantis required now to defend against the claim of Plaintiff and then bring a separate action against Cross-Defendants for indemnification of sums that Cross-Complainant may be compelled to pay as the result of any damages, judgment, or other awards recovered by Plaintiff, if any. WHEREFORE, Cross-Complainant prays for judgment against Cross-Defendants as follows: ON THE FIRST, SIXTH, AND SEVENTH CAUSES OF ACTION: I. For judgmentin a proportionate share from each Cross-Defendant; ON THE SECOND, THIRD, FOURTH, FIFTH, AND EIGHTH CAUSES OF ACTION: I. For total and complete indemnity of any amounts that might be found due by Cross- Complainant if liability is incurred as alleged above; ON THE NINTH CAUSE OF ACTION: I. For a judicial determination of the comparative fault of Cross-Complainant and Cross-Defendants for the damages claimed by Plaintiff, if any are found to exist; 14 ST. JOSEPH HEALTH SYSTEM'S CROSS-COMPLAINT A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. For a declaration of the amount that Cross-Defendants are obligated to indemnify Cross-Complainant if Cross-Complainant is compelled to pay any sum as the result of any damages, judgment, or other awards recovered by Plaintiff. ON ALL CAUSES OF ACTION: 1. For costs of suit incurred herein; 2. For pre-judgment and post-judgmentinterest; and 3. For such other and further relief as is just and equitable. DATED: December __, 2016 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. By: Vince M. Verde Carolyn E. Sieve Christopher J. Archibald Michael E. Olsen Attorneys for Defendant and Cross-Complainant, ST. JOSEPH HEALTH SYSTEM 28096845.1 15 ST. JOSEPH HEALTH SYSTEM'S CROSS-COMPLAINT A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I am and was at all times herein mentioned over the age of 18 years and not a party to the action in which this service is made. At all times herein mentioned I have been employed in the County of Orange in the office of a member of the bar of this court at whose direction the service was made. My business address is Park Tower, Suite 1500, 695 Town Center Drive, Costa Mesa, CA 92626. On December 30, 2016, I served the following document(s) to the addressees listed on the attached service list: DEFENDANT ST. JOSEPH HEALTH SYSTEM’S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT AGAINST MCAFEE, INC. AND UNIVERSAL NETWORK SOLUTIONS, INC.; MEMORANDUM OF POINTS AND AUTHORITIES by placing [] (the original) [X] (a true copy thereof) in a sealed envelope addressed as stated on the attached mailing list. X BY OVERNIGHT DELIVERY: I placed the sealed envelope(s) or package(s) designated by the express service carrier for collection and overnight delivery by following the ordinary business practices of Ogletree, Deakins, Nash, Smoak & Stewart P.C., Costa Mesa, California. I am readily familiar with Ogletree, Deakins, Nash, Smoak & Stewart P.C.’s practice for collecting and processing of correspondence for overnight delivery, said practice being that, in the ordinary course of business, correspondence for overnight delivery is deposited with delivery fees paid or provided for at the carrier’s express service offices for next-day delivery. 4 (State) I declare under penalty of perjury under the laws of the State of California that the aboveis true and correct. Executed on December 30, 2016, at Costa Mesa, California. Lan H. Ly DEFENDANT ST. JOSEPH HEALTH SYSTEM’S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES A N n n W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Lawrance A. Bohm, Esq. Bradley J. Mancuso, Esq. Brandon Ortiz, Esq. Edward Li, Esq. Bohm Law Group 21051 Warner Center Lane, Suite 225 Woodland Hills, CA 91367 Telephone: (866) 920-1292 Facsimile: (916) 927-2046 Email: Ibohm@bohmlaw.com Email: brad@bohmlaw.com Email: brandon@bohmlaw.com Email: edward@bohmlaw.com Attorney for Plaintiff, JENA PEOPLES 28208174.1 DEFENDANT ST. JOSEPH HEALTH SYSTEM’S NOTICE OF MOTION AND MOTION FOR LEAVE TO FILE A CROSS-COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES