Malihe Mandegar vs. Magnetic Sensors Corporation

Opposition

Cal. Super. - 4th Dist.August 9, 2016

BO HM LA W GR OU P, IN C 21 05 1 WA RN ER CE NT ER LA NE , SU IT E 22 5 WO OD LA ND HI LL S, CA LI FO RN IA 91 36 7 O R N N Wn A W N P O N O N N N R N N N N = e m e m ea em e e ee e m pe d c o ~ ~ ] A N L h W N = D Y N N DR W N = D Lawrance A. Bohm (SBN: 208716) Bradley J. Mancuso (SBN:285616) ELECTRONICALLY FILED Ryann E. Hall (SBN: 306080) Superior Court of California, BOHM LAW GROUP, INC. County of Orange 21051 Warner Center Lane, Suite 225 0522017 at 03:39:00 PM Woodland Hills, California 91367 Clerk of the Superior Court Telephone: 866.920.1292 By & Clerk, Deputy Clerk Facsimile: 916.927.2046 Attorneys for Plaintiff, MALIHE MANDEGAR SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE MALIHE MANDEGAR, Case No: 30-2016-00868428-CU-OE-CJC Plaintiff, Assigned to the Honorable Judge Peter Wilson Vv. PLAINTIFF'S MEMORANDUM OF MAGNETIC SENSORS CORPORATION, a POINTS AND AUTHORITIES IN California corporation; SIMON WORBOYS, an | OPPOSITION TO DEFENDANT individual; FRANK CEGELSKI, an individual; | MAGNETIC SENSORS and DOES 1 through 50, inclusive, CORPORATION’S DEMURRER TO PLAINTIFF’S FIRST AMENDED Defendants. COMPLAINT Date: May 25, 2017 Time: 2:00 p.m. Dept.: C15 Action Filed: ~~ August 9, 2016 Trial Date: April 2, 2018 i PLAINTIFF’S MPA IN OPPOSITION TO DEFENDANT MAGNETIC SENSORS CORPORATION’S DEMURRER TO PLAINTIFE’S FIRST AMENDED COMPLAINT Mandegar v. Magnetic Sensors Corporation Lawrance A. Bohm, Esq. Case No.: 30-2016-00868428-CU-OE-CIC Bradley J. Mancuso, Esq. Ryann E. Hall, Esq. B o u M L A W GR OU P, IN C 21 05 1 W A R N E R C E N T E R L A N E , SU IT E 22 5 W O O D L A N D HI LL S, C A L I F O R N I A 9 1 3 6 7 O R N N nh bh W N = RN N D R O N N N N N N m e e m ee e e pe c e ~ ~ ] O N Lh A W N = O N O N N R W N = OO TO THE COURT, ALL PARTIES, AND THEIR RESPECTIVE COUNEL OF RECORD: Plaintiff, MALIHE MANDEGAR, will and hereby does oppose Defendant MAGNETIC SENSORS CORPORATION’s Demurrer to Plaintiff’s First Amended Complaint. This Opposition is based upon this Memorandum or Points and Authorities, the Declaration of Ryann E. Hall, and upon such further evidence and argument as may be presented prior to or at the time of the hearing on the demurrer. ii PLAINTIFF’S MPA IN OPPOSITION TO DEFENDANT MAGNETIC SENSORS CORPORATION’S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT Mandegar v. Magnetic Sensors Corporation Lawrance A. Bohm, Esq. Case No.: 30-2016-00868428-CU-OE-CJC Bradley J. Mancuso, Esq. Ryann E. Hall, Esq. BO HM LA W GR OU P, IN C 21 05 1 W A R N E R CE NT ER LA NE , SU IT E 22 5 W O O D L A N D HI LL S, CA LI FO RN IA 91 36 7 Oo 0 9 N L BRA W N = N O N N O N N O N N O N e m mk e m e m em e m e m © N N N Ln A W N R D O N N YY R W ND -=m Oo TABLE OF CONTENTS I. INTRODUCTION.......coiiiireirceiitiinisisniis tessa stsses sas sassrnsbe sess sess sass eae ss esse see saan ne nnes 1 II. PROCEDURAL HISTORY ..curmussessonsssnnssssssnismmssns as sama seein ses ssysuns srrssssssss 1 II. STATEMENT OF FACTS....cccticiiiniiiminiienininione insets sists sse essere sas sansa sansa ae 1 IV. LEGAL STANDARTD comsnanssuessnmsmsnsusssss sesso ms amiss on os sass ins isvs sas srs asss cxus snsmsmnsss 4 VV. LEGAL ARGUMENT ...ocimmmeieocoemmosroressssasssosssnssasanessennsniasitiinississinss sass aissssmsios ibis iasonts 5 a. Plaintiffs First Cause of Action for Labor Code § 6310, 6402, 6403, 6404 is Not DIEIICIEIIE «ovveeeeeeeveiteeeetensens en nesasaeassasasasesasaessenaerseensessenseseesseseststastesaeiesteseiseessisensessesseseesassarsassnten 5 b. Plaintiffs Second Cause of Action for Discrimination is Not Deficient ........cccoeevvvvvreennnne 6 ¢. Plaintiffs Third Cause of Action for Retaliation is Not Deficient........cccccvvvvvvivevneennnnnnnn. 7 d. Plaintiff’s Fourth Cause of Action for Failure to Engage in the Interactive Process is Not DETICIEIE «nuveveeeeeee sees eeeeeeaesaesessasseseessnensesnanesansnsnssssassassnsssssessensenssarenssnneterssesnrensensesasssrssstsnnsnsnnsans 8 e. Plaintiff’s Fifth Cause of Action for Failure to Prevent Discrimination and Retaliation is INO DIEIICIEIIL ..eeeieeree tee eee eee eeeeeeeee eases esses assansessnnenensensnsssaesbaesssssssssssessansessenrannenneseranssassnsssnsanasns 9 f. Plaintiffs Sixth Cause of Action for Violation of CFRA is Not Deficient........ccvvveeerenennn. 9 g. Plaintiffs Seventh Cause of Action for Labor Code Sections 98.6 and 1102.5 is Not IDCFUCHETIL co ouusan.ssvssnsomavinsis awwsossmmssseies sss sion sams 352s Sais H SASS FEE UR SAE SF SRA RAYNE SY ESSAY EE HORAN AS ..9 h. Plaintiff's Eighth Cause of Action for Violation of Civil Code 52.1 is Not Deficient..... 10 i. Plaintiff’s Ninth Cause of Action for Battery is Not Deficient ......oecveveeeiincinvecrcrnieneas 11 j. Plaintiffs Tenth Cause of Action for Negligent Hiring, Retention and Supervision is Not IDEEICTEE. vo ese mmo mrss ho a5 E065 A HAS AA AAA RSE WOE 12 k. Plaintiff's Eleventh Cause of Action for Adverse Action in Violation of Public Policy is NOL DEIICIEIE evveeeeieeeeiiiieeeeeiteie seer e tree ereee tree eer ee s es eas s t s sesaassas ease seranen esusrersenerssasasssisaanastnenenas 12 VI. CONCLUSION... esis. sss ois ss e305 850a05 518551 TSA8S S44 0 SATS SRSA EA EY 13 iii PLAINTIFF’S MPA IN OPPOSITION TO DEFENDANT MAGNETIC SENSORS CORPORATIONS DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Mandegar v. Magnetic Sensors Corporation Lawrance A. Bohm, Esq. Case No.: 30-2016-00868428-CU-OE-CJC Bradley J. Mancuso, Esq. Ryann E. Hall, Esq. B O H M L A W G R O U P , IN C 2 1 0 5 1 W A R N E R C E N T E R L A N E , SU IT E 22 5 W O O D L A N D HI LL S, C A L I F O R N I A 9 1 3 6 7 Oo 0 3 YN WB R W ND P o N N N N N N N N e m e m em e m p m e d e d e d p e 0 NN a N Lh A W D = O Y N O Y R L Y = o TABLE OF AUTHORITIES State Cases Blank wn. Kirwan (1985) 39 CALI. TT coins sums csnssiaiinsosion nus sos isons steniniiesiheteminbin fists 4,5 C.R. v. Tenet Healthcare Corporation, et al., (2009) 169 Cal. App.4th 1094 .........ccorvvvvevenneen. 10 Campbell v. Regents of Univ. of California, 35 Cal. 4th 311 (2005) .cccerueereeveecricrerrereeerreevennens 7 Carr v. Wm. C. Crowell Co. (1946) 28 Cal. 2d 652......c.coviieeevieeeeeereereeeeecrrereeeessneesnnaenes 10, 12 Casella v. SouthWest Dealer Services, Ine. (2007) 157 Cal. App.4th 1127 ..cccoveericiirinieeirecreanns 12 Courtesy Ambulance Serv. v. Superior Court (1992) 8 Cal. App.4th 1504 .....cceovererirircircrinnne 4 Craig v. City of Los Angeles (1941) 44 Cal. APP.2d 71 ...coiieniiiieieieiee eects seas eees 5 E-Fab, Inc. v. Accountants, Inc. Services, (2007) 153 Cal.App.4th 1308.......cceoivivinininniecene. 5 Franklin v. Monadnock Co. (2007) 151 Cal. App. 4th 252.....c.ov ieee ererevee renee ees 11 Gelfo v. Lockheed Martin Corp. (2006) 140 CALADP.Ah 3ervroooooooooeooeoeooeoeoeoeoeooeoeeoee see 8 Harvey v. City of Holtville (1969) 271 Cal.APP.2d 816.....c.covieiiiiiririrereiecrenensenecreeeesenenens 4 Johnson v. Clark (1936) 7 Cal.2d 529... steers nte siesta sae besser esas 5 Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291 ......ccoovvieiiricencnen. 12 Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333 ..o.cooiiiiiiiiirrieeee ec 12 Prilliman v. United Air Lines, Inc. (1997) 53 Cal. App.4th 935 ceric 8 Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal. 4th 26 ......cccevcvvovvcriceirccrcrreenens 4 Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal.App.4th 986 .............. 8 Southern California Thrift & Loan v. Sylvania Elec. Products, Inc. (1967) 248 Cal.App.2d 6424 Truta v. Avis Rent A Car System, In-pOc. (1987) 193 Cal.App.3d 802 .......ooeveeviveivercereeinreenne 5 Turner v. Milstein (1951) 103 Cal. App.2d 651, 658 .....oomieiriiieeieeeterce re c seen ne 6 Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028.........ccoceoriirinniniieincnicine neice 7 Statutes Bric At, LE CTE 16 57]. 5000000500000 5050.05 HA mmr EHS rE 11 Cal: Gov't Cade: §8§ 12945.1 GN. 12045.2 «x cunuunasmsns cuossunsivsonsocestonamsosssess s asu sas coms sass ws mm saan 13 California Family Rights Act. California Government Code § 12945.29(1)(1) .c.ovveeveevvecrecrnenenn 9 iv PLAINTIFF’S MPA IN OPPOSITION TO DEFENDANT MAGNETIC SENSORS CORPORATION’S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT Mandegar v. Magnetic Sensors Corporation Lawrance A. Bohm, Esq. Case No.: 30-2016-00868428-CU-OE-CIC Bradley J. Mancuso, Esq. Ryann E. Hall, Esq. B O H M LA W GR OU P, IN C. 21 05 1 W A R N E R C E N T E R LA NE , SU IT E 22 5 W O O D L A N D HI LL S, C A L I F O R N I A 9 1 3 6 7 No 0 F Y BR W N e s N O N O N NN N N N N N mm ee e m Re m e s p e e e e e e e p e ~ N h R W N = D Y N Y R W ND = O California Labor Code § 6310 c.count sires sseie sess sscsnecansenssene snes be san as essen 5 California Labor Code: § 6310 Ca] «cn ocacronmmcmrmarsccrm mmr emma mmsen sins is simssis isis ssassissssnsosstnssss 5,6 Cw, CORE XORL. § SB. L.eer omission soso swiss essai 545 572556 For wSR RATE BAAS EE REESE AAR STS 11 Civ. Code. Proc. § 430.10, SUB. (8) ..uxsuumusumussnsnsumsssmnmins vsssss svsmsnssis ss sess seomssss sassy soon 4 Government Code § 12940(A) ......voververieririrecieiereeir ster e es berets nesses sass senses enn as 7 Labor Code § 1102.5 curiosities steerer sass sabes sbeebs ssa rnns 10 Labor Code § 6403... ieee reese serene sess b essa sabes bn a sane tes 6 Labor Code: § 98.0 .......coovemsmmissscsusaspamnssrsmmmmysmeppsassss-spmssssnmsssastsans namsssm ansasssnnsssm si S5H5E 3 ARH SRSRAFESR 655 9 Labor Code § 0402 AN GAD... occ een commence mms 58558455 £35405 EH WS BURRS RA 6 Labor Codes §§ 6310, 1102.5 aid 98.8 .ccmmaminmmssmmssasssssmsmn ass smess smss ussssmossasmmms 13 Seetion. 110] icunmsscsmsossusvomsnsinssssinswssmmmsssmmssmsinssssemmsmsm ss sess ssa sea So y SA AN ESA RYSTREAS 10 Treatises 5 Witkin, Cal. Procedure (4th ed. 2006) Pleading, § 900... 5 Federal Cases Jacques v. DiMarzio, Inc. (E.D.N.Y. 2002) 200 F.Supp.2d 151... 8 Oyarzo v. Tuolumne Fire Dist. (E.D. Cal. 2013) 955 F.Supp.2d 1038 ....c..cocoiiiiiiiiiiiiicecns 5 Vv PLAINTIFE’S MPA IN OPPOSITION TO DEFENDANT MAGNETIC SENSORS CORPORATION’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Mandegar v. Magnetic Sensors Corporation Lawrance A. Bohm, Esq. Case No.: 30-2016-00868428-CU-OE-CJC Bradley J. Mancuso, Esq. Ryann E. Hall, Esq. B O H M L A W GR OU P, IN C. 21 05 1 W A R N E R C E N T E R LA NE , SU IT E 22 5 W O O D L A N D HI LL S, C A L I F O R N I A 9 1 3 6 7 N o e 1] O Y in RA W N = N N N N N N N N NN mm mm em e m p m p m p e e d e d pe co I N Wn RAR W N = Ww N N nn R W N Y = © IL INTRODUCTION Plaintiff MALIHE MANDEGAR (hereinafter “Plaintiff” or “MANDEGAR?”) alleged sufficient facts against Defendants MAGNETIC SENSORS CORPORATION (hereinafter “MAGNETIC SENSORS”) that would entitle her to relief for all her causes of actions. Plaintiff respectfully requests that Defendants’ Demurrer to Plaintiff's First Amended Complaint be overruled. II. PROCEDURAL HISTORY Plaintiff filed her Complaint on August 9, 2016. Defendant Simon Worboy’s filed a demurrer to Plaintiff’s second cause of action for harassment, ninth cause of action for violation of Bane Act, and tenth cause of action for battery and a motion to strike on October 25, 2016. The hearing dates on said motions was set for January 12, 2017. On November 23, 2016 Defendant Magnetic Sensors and Frank Cegelski filed a demurrer to all causes of action and a motion to strike, and set a hearing date for January 19, 2017. On January 12, this Court granted Defendant Worboy’s demurrer and allowed Plaintiff leave to amend her complaint within 14 days. On January 17, 2017 the Court continued the hearing on Magnetic Sensor’s demurrer to February 2, 2017. Plaintiff filed her first amended complaint on January 26, 2017. Based on the Court’s ruling, Plaintiff dismissed her harassment claim. On February 2, 2017 the Court took Defendant Magnetic Sensor’s motions off calendar as Plaintiff filed her First Amended Complaint. Therefore, although this a demurrer to Plaintiff's First Amended Complaint this Court has not yet ruled on the majority of the causes of action. 111. STATEMENT OF FACTS MANDEGAR began her employment with MAGNETIC SENSORS on September 25, 1985. (FAC., 1 8). MANDEGAR worked hard over the years and obtained the position of Quality Control Supervisor. (FAC., § 9). On or about September 19, 2014 MANDEGAR was in CEGELSKTI’s office where he told her that changes were going to take place at MAGNETIC SENSORS, including giving Simon WORBOYS a lot of responsibility in the reorganization of MAGNETIC SENSORS. (FAC., 1 10). MANDEGAR said “Frank, you do realize Simon has a bad temper” and CEGELSKI replied, “Yes I know, but I’ve been talking to him about it and that 1 "PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Mandegar v. Magnetic Sensors Corporation Lawrance A. Bohm, Esq. Case No.: 30-2016-00868428-CU-OE-CJC Bradley J. Mancuso, Esq. Ryann E. Hall, Esq. B O H M LA W GR OU P, IN C 21 05 1 W A R N E R CE NT ER LA NE , SU IT E 22 5 W O O D L A N D HI LL S, CA LI FO RN IA 91 36 7 oO 0 N N hh A W N = N N N N O N N N N N e m em e d e m e m e d e d pe pe d ee 0 NN O N Ln PR W N = O Y e N N RE W N =e he has to change.” (FAC., § 10). On September 24, 2014 MANDEGAR was at her job working on the production line. (FAC., | 11). Around 7:30 a.m. MANDEGAR was showing an outside auditor, Benjamin Omidwar, test equipment calibration labels. (FAC., § 12). WORBOYS approached MANDEGAR and asked her where some equipment was located and MANDEGAR replied that Charlie Boudakian told her to give the parts to a vendor. (FAC., § 13). WORBOYS, visibility upset by MANDEGAR’s response, slammed a piece of hardware he was holding and yelled “You guys do what you want, I am no longer involved!” (FAC., q 14). MANDEGAR, embarrassed that the outside auditor and other employees witnessed WORBOYS’ outburst, said “Be nice Simon” as WORBOYS walked away. (FAC., § 15). WORBOYS then approached MANDEGAR, pressed his upper arm and shoulder in MANDEGAR’s left breast and said “Fuck off.” (FAC. { 16). MANDEGAR did not consent to the touching. (FAC., J 17) MANDEGAR fell backwards and was terrified, shaking and crying. (FAC, q 18). MANDEGAR, crying hysterically, went to the her boss’ (Wilen Shiglik) office. (FAC., § 19). Shiglik attempted to calm MANDEGAR down and asked a coworker to take her to the emergency clinic, where she received an injection to lower her blood pressure and ease pain. (FAC., 919-20). MANDEGAR stopped by work to pick up her purse. (FAC., J 21). Shiglik saw MANDEGAR and called her into his office to see how she was doing. /d. Boudakian was walking by and joined the meeting. (FAC., § 21). CEGLESKI saw everyone in Shiglik’s office and asked what happened. (FAC., § 21). MANDEGAR told CEGLESKI about the incident with WORBOYS. (FAC., § 22). Another coworker present in the office, Adam Whittingham, asked CEGLESKI what he was going to do about WORBOYS assaulting MANDEGAR. (FAC., 22). CEGLEKSI got very angry and said “alleged assault” and “Ok! Ok!” and left the room. (FAC., 22). After meeting in Shiglik’s office, MANDEGAR went to see Grace Bagwell, Human Resources Supervisor, to tell her what happened. CEGELSKI was already with Bagwell. (FAC., 123). CEGELSKI told MANDEGAR that Bagwell was on the phone with the emergency room 2 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Mandegar v. Magnetic Sensors Corporation Lawrance A. Bohm, Esq. Case No.: 30-2016-00868428-CU-OE-CIC Bradley J. Mancuso, Esq. Ryann E. Hall, Esq. B O H M L A W GR OU P, IN C 21 05 1 W A R N E R C E N T E R LA NE , SU IT E 22 5 W O O D L A N D HI LL S, C A L I F O R N I A 91 36 7 Oo O L ~~ N n R W N -= N N N N N N N N N m m em e m e m e m e m e m e d md 0 1 a N Un B R A W N = Y N N n h w N = doctor. (FAC., § 23). Bagwell and CEGELSKI were agitated and told MANDEGAR that the doctor did not tell her to call the police. Confused, MANDEGAR explained that the doctor asked her if she called the police, not to call the police. (FAC., § 24). Both Bagwell and CEGELSKI were upset with MANDEGAR. (FAC., § 24). MANDEGAR asked Bagwell if she remembered when MANDEGAR was sexually assaulted by a coworker years ago. MANDEGAR said she was too ashamed to call the police or hire an attorney back then but she was not afraid anymore. Bagwell responded that the coworker assaulted everyone. (FAC., | 25). MANDEGAR felt that Bagwell was acting like what happened was no big deal and asked “How can you say such things and still be Human Resources?” and “are you going to take care of this situation the right way this time or do you want me to take care of it?” (FAC., 25). CEGELSKI proceeded to yell “go home!” at MANDEGAR multiple times. (FAC., § 26). MANDEGAR walked backwards out of the room because CEGELSKI ’s yelling scared her and she feared that CEGELSKI would physically assault her. (FAC., § 27). CEGELSKI proceeded to slam the door in MANDEGAR’s face. (FAC., 27). On September 24, 2014 MANDEGAR went out on medical leave due to the severe stress and anxiety brought on by the incident. (FAC., § 28). MANDEGAR was on medical leave for about eight months. During the entire time MANDEGAR was on medical leave, not a single person from MAGENTIC SENSORS including; Bagwell, Boudakain, CEGELSKI or WORBOYS, called to check on her, offered her assistance, or attempted to engage in an interactive process to determine if MANDEGAR could return to work with accommodations. (FAC., 1 28). On September 25, 2014 MANDEGAR filed a police report. (FAC., 20). Upon information and belief, WORBOY'S was promoted to Director of Sensor Engineering on or about November 17, 2014. (FAC., 1 30). On or about May 29, 2015, MANDEGAR called her employer and informed them she was cleared to return to work. (FAC., § 32). On or about June 8, 2015, MANDEGAR returned to work only to be informed by Bagwell that the company would not return her to her previous position. (FAC., 33). Instead, MAGNETIC SENSORS offered MANDEGAR an entry-level position as an engineering clerk. (FAC., 33). MANDEGAR asked Bagwell why she was being 3 PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Mandegar v. Magnetic Sensors Corporation Lawrance A. Bohm, Esq. Case No.: 30-2016-00868428-CU-OE-CIC Bradley J. Mancuso, Esq. Ryann E. Hall, Esq. B O H M LA W GR OU P, IN C 21 05 1 W A R N E R CE NT ER LA NE , SU IT E 22 5 W O O D L A N D HI LL S, CA LI FO RN IA 91 36 7 ve we NN nn A Ww N = N O N N N N N N N N em em e m p d p m e d e m p d ed cL N N Ln bh W N = O Y e N N E W N = D reassigned and Bagwell responded “upper management has given me the dirty job of having to tell you.” (FAC., 9 33). This retaliation caused MANDEGAR additional stress, which resulted in her being put on disability leave again. (FAC., J 33). On August 24, 2015, MANDEGAR received a right to sue letter from the Department of Fair Employment and Housing. (FAC., § 34). MANDEGAR amended her DFEH complaint on or about August 8, 2016. (FAC., 4 34). Upon information and belief, Plaintiff alleges that WORBOYS was never disciplined regarding this incident. (FAC., § 35). Upon information and belief, Plaintiff alleges that the acting Human Resource director, Sara Cegelski, knew or should have known about the assault and was involved in the decision making regarding how to handle the incident. (FAC., 36). IV. LEGAL STANDARD Complaints must “state facts sufficient to constitute a cause of action” or they may be subject to demurrer. (Code Civ. Proc., § 430.10, subd. (e).) Yet, the Court must interpret complaints reasonably, reading them as a whole and considering all parts in context. (Courtesy Ambulance Serv. v. Superior Court (1992) 8 Cal.App.4th 1504, 1519.) The rules by which the sufficiency of complaints is tested against a general demurrer are well settled: Courts not only treat the demurrer as admitting that all material facts had been properly pleaded, but also “give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal 4th 26, 38.) The issue on demurrer is not whether Plaintiff can ultimately prove all facts alleged, but whether, if the allegations are proven, Plaintiff is entitled to relief. (Southern California Thrift & Loan v. Sylvania Elec. Products, Inc. (1967) 248 Cal.App.2d 642, 649; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) If the complaint states a cause of action under any theory, regardless of the claimed basis for relief, that aspect of the complaint is good against a demurrer: “[Wle are not limited to plaintiffs’ theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory.” (Quelimane Co., Inc. v. Stewart Title Guar. Co., supra, 19 Cal.4th 26, at 38. See also, Harvey v. City of Holtville (1969) 271 Cal. App.2d 816, 819) 4 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Mandegar v. Magnetic Sensors Corporation Lawrance A. Bohm, Esq. Case No.: 30-2016-00868428-CU-OE-CIC Bradley J. Mancuso, Esq. Ryann E. Hall, Esq. BO HM LA W GR OU P, IN C 21 05 1 W A R N E R C E N T E R LA NE , SU IT E 22 5 W O O D L A N D HI LL S, C A L I F O R N I A 91 36 7 Oo 0 NN aN LL BR W N = RN O D N O N N O N N N N E e e m e m e m e d p m e m e d ed © ~~ ] O N Wh BAR W N = DO O e YN R W NN -= OD (“la] general demurrer admits not only the facts expressly alleged but also facts essential to a cause of action which the facts alleged supply by implication or inference.”) (Emphasis added).) “A complaint is invulnerable to a general demurrer if on any theory it states a cause of action.” (Johnson v. Clark (1936) 7 Cal.2d 529, 536; Truta v. Avis Rent A Car System, In-p0Oc. (1987) 193 Cal.App.3d 802, 815.) This is because the demurrer “tests the pleading alone, and not the evidence or other extrinsic matters, it lies only where the defects appear on the face of the pleading.” (5 Witkin, Cal. Procedure (4th ed. 2006) Pleading, § 900. See, E-Fab, Inc. v. Accountants, Inc. Services, (2007) 153 Cal. App.4th 1308, 1315. (“A demurrer tests the pleading alone, and not the evidence or the facts alleged.”).) Leave to amend must be granted if a defect can be cured; it is an abuse of discretion for the Court to deny leave to amend where there is a reasonable possibility that the defect can be cured by amendment. (Blank v. Kirwan, supra, 39 Cal.3d 311, at 318.) V. LEGAL ARGUMENT | a. Plaintiff’s First Cause of Action for Labor Code § 6310, 6402, 6403, 6404 is Not Deficient Plaintiff's first cause of action is not uncertain, ambiguous, or unintelligible as it pertains to a violation of safety in employment. Defendants’ authority, Craig v. City of Los Angeles (1941) 44 Cal.App.2d 71, reasons that a complaint is subject to demurrer on the grounds of uncertainty and unintelligibility when it “attempts to state numerous causes of action in a very loose and rambling manner without any attempt at separately stating them.” Id. at 73. Here, Plaintiff has separated her causes of action and has specifically stated each Labor Code provision she is relying on in her claim of violation of workplace safety. (FAC, § 4 37-44). Plaintiff has alleged sufficient facts to demonstrate that a violation has occurred. California Labor Code Section 6310 does not require a Plaintiff to report an incident to the Division of Labor. (“CLC § 6310 protects employees who ‘ha[ve] made a bona fide oral or written complaint ... to his or her employer.””) (Oyarzo v. Tuolumne Fire Dist. (E.D. Cal. 2013) 955 F.Supp.2d 1038, 1098) (citing California Labor Code Section 6310 (a)(1).). Plaintiff made a complaint of workplace violence to Mr. Cegelski, the Vice President of MAGNETIC SENSORS, 5 PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Mandegar v. Magnetic Sensors Corporation Lawrance A. Bohm, Esq. Case No.: 30-2016-00868428-CU-OE-CJC Bradley J. Mancuso, Esq. Ryann E. Hall, Esq. B O H M L A W GR OU P, IN C 21 05 1 W A R N E R C E N T E R LA NE , SU IT E 22 5 W O O D L A N D HI LL S, C A L I F O R N I A 91 36 7 OO 0 3 NN hh BR W N = N N N N N R N N N N m= em em e m em em p d e d e e ~ I A N Un Rh W N = O Y e N O Y l w N = and Grace Bagwell, a Human Resources Supervisor. (FAC, § § 22-25). Plaintiff has pleaded sufficient facts to demonstrate a violation of Labor Code Section 6310 (a)(1) has occurred. Plaintiff has also sufficiently alleged a violation of Labor Code Sections 6402 and 6404, that the workplace was not safe. Plaintiff pleaded that MANDEGAR told CEGELSKI that WORBOYS has a bad temper to which CEGELSKI replied “Yes I know, but I've been talking to him about it and that he has to change.” (FAC., § 10)(emphasis added). Therefore, Plaintiff has pleaded that CEGELSKI was aware of WORBOYS’ temper. CEGELSKI’s recognition of the problem and the need for change is indicative that his behavior caused an unsafe workplace. Moreover, MANDEGAR was assaulted at work, meaning the workplace was clearly unsafe. (FAC., 916-18). Plaintiff has sufficiently pleaded a violation of Labor Code Section 6403. The Section states, in part, “No employer shall fail or neglect to do any of the following... To do every other thing reasonably necessary to protect the life, safety, and health of employees.” CEGELSKI was aware of WORBOYS’ temper and allegedly spoke to him about it. (FAC., § 10). However, talking to WORBOYS was not sufficient and therefore MAGNETIC SENSORS failed to do everything reasonably necessary to protect the safety of its employees. Therefore, the first cause of action is sufficiently pleaded. b. Plaintiff’s Second Cause of Action for Discrimination is Not Deficient Plaintiff has sufficiently alleged and demonstrated that she has exhausted her administrative remedies for all FEHA causes of action. See (FAC. { 34). Plaintiff plead that she received a right to sue notice on August 24, 2015-within the one-year requirement. (Id.) As a courtesy, on October 5, 2016 Plaintiff’s counsel sent Defense counsel all DFEH Complaints and Right to Sue Notices. (Declaration of Ryann Hall §4-5). “It is an old and elemental rule of pleading that a demurrer for uncertainty does not lie if what is sought is a statement of matter already within the knowledge of the demurring party.” (Turner v. Milstein (1951) 103 Cal.App.2d 651, 658). Defendant already has in its possession all DFEH complaints and right to sue notices that show the timely filing. Defendant mistakenly relied on Campbell v. Regents of Univ. of California, 35 Cal. 4th 6 PLAINTIFEF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT Mandegar v. Magnetic Sensors Corporation Lawrance A. Bohm, Esq. Case No.: 30-2016-00868428-CU-OE-CJC Bradley J. Mancuso, Esq. Ryann E. Hall, Esq. B O H M L A W GR OU P, IN C 21 05 1 W A R N E R C E N T E R LA NE , SU IT E 22 5 W O O D L A N D HI LL S, C A L I F O R N I A 91 36 7 N O R N N R W N D N o N o nN rN N o \® ] N o N o [\ ®] -_ -_ -_ = e e -_- - - ww ~ 1 N R W N = D O e O Y D R A W N = OD 311 (2005). Unlike here, in Campbell the Plaintiff failed to show that she even attempted to exhaust her administrative remedies. (Jd. at 333.) Defendant has not cited any case last that required Plaintiff to attach the DFEH right to sue to her complaint. Upon the Court’s request Plaintiff will amend her complaint and attach the DFEH complaints and right to sue notices. Plaintiff alleged the elements of disability discrimination: she suffered from severe stress and anxiety that required her to take medical leave (mental disability), was able to perform the essential functions of her position, and was harmed as she was subjected to a demotion to an entry level position because of the disability. Government Code section 12940(a); (FAC., § 9 28, 32- 33, 48, 49). As such, Plaintiff has sufficiently alleged a cause of action for disability discrimination. c. Plaintiff's Third Cause of Action for Retaliation is Not Deficient As discussed above, Defendant already has in its possession all DFEH complaints and right to sue notices that show timely filing. Upon the Court’s request, Plaintiff will amend her complaint and attach the DFEH complaints and right to sue notices. Plaintiff has alleged sufficient facts to hold MAGNETIC SENSORS liable for retaliation. “[T]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a “protected activity,” (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action.” (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) Plaintiff sufficiently pleaded that she provided Defendant notice of what she reasonably believed to be harassment and that adverse action was taken because of such report. (FAC. 21-25, 33, 54-56). Defendant’s argument Plaintiff was not subjected to an adverse employment action is unfounded. MAGNETIC SENSORS subjected Plaintiff to retaliatory acts, including a demotion, due to the complaint. (FAC. § 33). Clearly, a demotion to an entry level position after working at a job for more than two decades constitutes “adverse treatment that is reasonably likely to impair a reasonable employee's job performance or prospects for advancement or promotion.” (Yanowitz at 1054-55). The Supreme Court of California specifically stated that a demotion constitutes an adverse employment action. Guz v. Bechtel Nat. Inc. (2000) 24 Cal. 4th 317, 355 (“[Plaintiff] 7 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT Mandegar v. Magnetic Sensors Corporation Lawrance A. Bohm, Esq. Case No.: 30-2016-00868428-CU-OE-CIC Bradley J. Mancuso, Esq. Ryann E. Hall, Esq. B o H M L A W GR OU P, IN C 21 05 1 W A R N E R C E N T E R LA NE , SU IT E 22 5 W O O D L A N D HI LL S, C A L I F O R N I A 9 1 3 6 7 Oo Ce N N nn BR W N e e N O N R N N N N N ND mm o e p m e m e m e m e d e d em pe co N N RAR W N = O Ww N N Rh W N = suffered an adverse employment action, such as termination, demotion, or denial of an available job.....” Therefore, Plaintiff sufficiently pleaded a claim for retaliation. d. Plaintiff’s Fourth Cause of Action for Failure to Engage in the Interactive Process is Not Deficient As discussed above, Defendant already has in its possession all DFEH complaints and right to sue notices that show timely filing. Upon the Court’s request Plaintiff will amend her complaint and attach the DFEH complaints and right to sue notices. The employer has a duty to engage the employee simply if he perceives the employee to have a disability. “‘Realistically, when an employer is aware of an employee's disability, the employer's interest is not in assessing whether the individual's impairment may legally be considered an ‘actual disability.” Rather, [t]he focus of the interactive process centers on employee-employer relationships so that capable employees can remain employed if their medical problems can be accommodated, rather than sounding a clarion call to legal troops to opine on whether the employee's impairment is an actual disability within the legal nuances of the [statute].”” Gelfo v. Lockheed Martin Corp. (2006) 140 Cal. App.4th 34, 61-62 (quoting Jacques v. DiMarzio, Inc. (E.D.N.Y. 2002) 200 F.Supp.2d 151, 169-70. “[A]n employer who knows of the disability of an employee has an affirmative duty to make known to the employee other suitable job opportunities with the employer and to determine whether the employee is interested in, and qualified for, those positions, if the employer can do so without undue hardship or if the employer offers similar assistance or benefit to other disabled or nondisabled employees or has a policy of offering such assistance or benefit to any other employees.” Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 950-51. “Although it is the employee's burden to initiate the process, no magic words are necessary, and the obligation arises once the employer becomes aware of the need to consider an accommodation.” Scotch v. Art Institute of California-Orange County, Inc. (2009) 173 Cal.App.4th 986, 1013 (internal citations omitted.) Defendants knew Plaintiff was disabled considering she went out on medical leave due to severe stress and anxiety. (FAC, § 28). Because of this knowledge, Defendants had a duty to 8 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT Mandegar v. Magnetic Sensors Corporation Lawrance A. Bohm, Esq. Case No.: 30-2016-00868428-CU-OE-CJC Bradley J. Mancuso, Esq. Ryann E. Hall, Esq. B O H M LA W GR OU P, IN C. 21 05 1 W A R N E R C E N T E R LA NE , SU IT E 22 5 ‘ W O O D L A N D HI LL S, C A L I F O R N I A 91 36 7 Oo 0 N N BR W N RN N N N N N RN N N m m = em m e = e e s e e ® N N nh A W N R O Y Y N BR W N -- oO engage Plaintiff to determine if an accommodation could be made to assist her. However, Defendants never approached or engaged Plaintiff to determine if an accommodation could be made. As such, Plaintiff’s claim for failure to engage in an interactive process is proper. e. Plaintiff’s Fifth Cause of Action for Failure to Prevent Discrimination and Retaliation is Not Deficient As discussed above, Defendant already has in its possession all DFEH complaints and right to sue notices that show timely filing. Upon the Court’s request Plaintiff will amend her complaint and attach the DFEH complaints and right to sue notices. As discussed above, Plaintiffs claims for discrimination and retaliation are proper and Plaintiff has pleaded that Defendant failed to implement adequate monitoring to prevent harassment, discrimination, and retaliation. (FAC., § 10). f. Plaintiff’s Sixth Cause of Action for Violation of CFRA is Not Deficient Plaintiff sufficiently pleaded a violation of the California Family Rights Act. California Government Code § 12945.29(1)(1) states: “It shall be an unlawful employment practice for an employer to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against any individual because of any of the following... An individual's exercise of the right to family care and medical leave provided....” Plaintiff alleged that MANDEGAR went on medical leave due to severe stress and anxiety. (FAC, § 28). Upon returning to work after her leave, MANDEGAR was demoted to an entry level position. (FAC, § 33). Plaintiff also alleged that CFRA was binding on Defendants. (FAC, § 73). Plaintiff alleged that this demotion was due to her taking CFRA leave. (FAC, § 74-75). Plaintiff's right to take protected leave is not voided because she exceeded the twelve week leave period. Rather, Plaintiff sufficiently pleaded a CFRA violation because she alleged that the demotion was pretextual, meaning, due to the fact that she exercised her right to take CFRA leave. (FAC, § 74-75). As such, Plaintiff’s claim for violation of CFRA is not deficient. g. Plaintiff's Seventh Cause of Action for Labor Code Sections 98.6 and 1102.5 is Not Deficient Labor Code Section 98.6 states, in part, “[a] person shall not discharge an employee or in 9 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFE’S FIRST AMENDED COMPLAINT Mandegar v. Magnetic Sensors Corporation Lawrance A. Bohm, Esq. Case No.: 30-2016-00868428-CU-OE-CJC Bradley J. Mancuso, Esq. Ryann E. Hall, Esq. BO HM LA W GR OU P, IN C 21 05 1 WA RN ER CE NT ER LA NE , SU IT E 22 5 WO OD LA ND HI LL S, CA LI FO RN IA 91 36 7 OO 0 ~ ~ O N wn Rk WwW N D N O N N N N N = m be d e m e m e d «0 N N On Rh W N = D O O N Y nn R W N = Oo any manner discriminate, retaliate, or take any adverse action against any employee or applicant for employment because the employee or applicant engaged in any conduct delineated in this chapter, including. ..Chapter 5 (commencing with Section 1101).” Labor Code Section 1102.5 is within Chapter 5. Therefore, the cause of action is not uncertain or improper. Defendant cites no case law to support its proposition that Plaintiff must delineate what statutes were violated. Plaintiff pleaded that MANDEGAR complained about an assault to employees who had the authority to investigate and, a law enforcement agency. Labor Codel102.5; (FAC, § 21-25, 29). Moreover, Plaintiff pleaded that MANDEGAR reasonably believed that WORBOY’s conduct was illegal, as she filed a police report. (FAC, 929, 83). As such, Plaintiff’s claim for relation is not deficient. h. Plaintiff’s Eighth Cause of Action for Violation of Civil Code 52.1 is Not Deficient Plaintiff has pleaded sufficient facts to hold MAGNETIC SENSORS liable for WORBOY’S violation of the Bane Act. It is well-settled that an employer is liable for willful and malicious torts committed in the scope of employment. (Carr v. Wm. C. Crowell Co. (1946) 28 Cal. 2d 652, 654). In Carr the California Supreme Court held that an assault and battery committed by an employee against a co-worker is within the course and scope of employment, where two co-workers got into a dispute and one employee struck the other employee in the head with a hammer. /d at 657. The Court held “it is sufficient... if the injury resulted from a dispute arising out of the employment.” Id. at 654. Here, Plaintiff pleaded that the dispute between WORBOYS and MANDEGAR arose out of missing parts. (FAC, § 11-18). As such, Plaintiff has pleaded that WORBOYS was acting within the course and scope of employment when WORBOYS engaged in violence. (FAC., { 11-18). MAGNETIC SENSORS may be held Liable for WORBOYS’ tort because it ratified WORBOYS’ conduct. “[A]n employer may be liable for an employee's act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort.” (C.R. v. Tenet Healthcare Corporation, et al., (2009) 169 Cal. App.4th 1094, 1110) (internal citations omitted). Ratification may occur when an employer learns of misconduct and fails to discharge an employee. (Id. at 1110-1111.) Here, Plaintiff has pleaded that WORBOYS was never 10 PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFE’S FIRST AMENDED COMPLAINT Mandegar v. Magnetic Sensors Corporation Lawrance A. Bohm, Esq. Case No.: 30-2016-00868428-CU-OE-CIC Bradley J. Mancuso, Esq. Ryann E. Hall, Esq. BO HM LA W GR OU P, IN C 21 05 1 WA RN ER CE NT ER LA NE , SU IT E 22 5 WO OD LA ND HI LL S, CA LI FO RN IA 91 36 7 OO 0 NN YN n t B R A W N N O N N O N O N RN N N N mm mm e m e m pe e e e d a e m pe 0 ~ 4 N B R W N =, D C N N BR W N = D disciplined for his tortious act. (FAC, q 35). Therefore, MAGNETIC SENSORS may be liable for the violation of the Bane Act because it ratified the tort. As discussed in Plaintiff’s Opposition to Defendant Simon Worboy’s Demurrer, Plaintiff has pleaded facts sufficient to constitute a violation of the Bane Act. Civ. Code § 52.1 allows a civil action if the person’s “exercise or enjoyment of rights secured by the Constitution or the laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with” through “threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion.” Civ. Code Cal. Civ. Code § 52.1. Here, Plaintiff bases her Section 52.1 claim on WORBOYS’ threats and intimidation in violation of her right under state law to a safe workplace. Labor Code 6400(a) states: “(a) Every employer shall furnish employment and a place of employment that is safe and healthful for the employees therein.” “Labor Code section 6400 ef seq. and Code of Civil Procedure section 527.8, when read together, establish an explicit public policy requiring employers to provide a safe and secure workplace, including a requirement that an employer take reasonable steps to address credible threats of violence in the workplace.” (Franklin v. Monadnock Co. (2007) 151 Cal. App. 4th 252, 259). Here, Plaintiff alleged that WORBOYS “pressed his upper arm and shoulder in MANDEGAR’s left breast and said into her ear ‘Fuck off.”” (FAC, { 16). This action constitutes violence--at the very least it constitutes a threat of violence. In doing so, WORBOYS acted violently and interfered with Plaintiff’s right to a safe and secure workplace. In the alternative, WORBOYS’ use of profane language and physical conduct constitutes a threat of violence that would interfere with Plaintiff’s right to a safe work place by threatening violence if MANDEGAR attempted to exercise this right and did not “fuck off.” As such, Plaintiff sufficiently alleged a violation of the Bane Act. i. Plaintiff’s Ninth Cause of Action for Battery is Not Deficient MAGNETIC SENSORS may be held liable for WORBYS’ battery as it arose during the course and scope of WORBOYS’ EMPLOYMENT. As discussed above, WORBOYS’ tort was an outgrowth of his employment. The altercation arose solely out of WORBOYS’ employment. 11 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT Mandegar v. Magnetic Sensors Corporation Lawrance A. Bohm, Esq. Case No.: 30-2016-00868428-CU-OE-CJC Bradley J. Mancuso, Esq. Ryann E. Hall, Esq. B O H M LA W GR OU P, IN C 21 05 1 W A R N E R C E N T E R L A N E , SU IT E 22 5 W O O D L A N D HI LL S, CA LI FO RN IA 91 36 7 Oo o e 1 O N Ln BR W N em N O N N N N N N N m e e e e e m e e e m e m e e e d 0 1 a N LL BA W N = D Y e N Y R W N = (Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652, 657). In the respondeat superior context, “foreseeability merely means that in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal 4th 291, 299). As in Carr, a workplace dispute is not so unusual as to be considered unforeseeable under this definition. As such, Plaintiff pleaded sufficient facts to hold MAGNETIC SENSORS liable for the battery. j- Plaintiff’s Tenth Cause of Action for Negligent Hiring, Retention and Supervision is Not Deficient Plaintiff has pleaded sufficient facts to allege negligent hiring, supervision or retention of an employee. “Liability for negligent hiring and supervision is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees. The tort has developed in California in factual settings where the plaintiff's injury occurred in the workplace, or the contact between the plaintiff and the employee was generated by the employment relationship.” (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333," 1339-1340). Here, Defendant negligently retained WORBOYS after it became aware of his temper. Plaintiff pleaded that CEGELSKI was aware of WORBOYS’ bad temper and recognized the WORBOYS needed to change. (FAC, § 10). This factual allegation leads to a reasonable assumption that there were other incidents involving WORBOY'S’ temper. Therefore, Plaintiff has sufficiently alleged that MAGNETIC SENSORS was aware of WORBOYS?’ unfitness and that his temper created a particular risk. Kk. Plaintiff’s Eleventh Cause of Action for Adverse Action in Violation of Public Policy is Not Deficient Plaintiff's adverse action in violation of public policy is not duplicative. A Plaintiff may recover for an adverse action in violation of public policy claim if the adverse action contravenes public policy. (Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal. App.4th 1127, 1139). Plaintiff has pleaded that her demotion contravened public policy codified in Labor Codes §§ 12 PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT Mandegar v. Magnetic Sensors Corporation Lawrance A. Bohm, Esq. Case No.: 30-2016-00868428-CU-OE-CIC Bradley J. Mancuso, Esq. Ryann E. Hall, Esq. B O H M LA W GR OU P, IN C 21 05 1 W A R N E R C E N T E R LA NE , SU IT E 22 5 W O O D L A N D HI LL S, CA LI FO RN IA 91 36 7 Oo e o N N x Ln BA W N = 0 J N Rk WL ND R O O e N Y W N = o 6310, 1102.5 and 98.6 and Cal. Gov’t Code §§ 12945.1 and 12945.2. This claim is not duplicative as the harm in this cause of action stems from a violation of public policy arising under the common law. The other claims are statutory. As such, Plaintiff’s eleventh cause of action is not deficient. VI. CONCLUSION For the foregoing reasons Defendant’s motion must be denied in its entirety. In the event the Court is inclined to grant the motion, Plaintiff respectfully requests leave be granted to file an amended complaint.’ BOHM LAW GROUP, INC. Date: May 12, 2017 va AA "(phage A BOHM, ESQ. J. MANCUSO, ESQ. RYANN E. HALL, ESQ. Attorneys for Plaintiff, MALIHE MANDEGAR ! Defendant’s reliance on Goodman v. Kennedy, 18 Cal. 3d 335 (1976) is misguided. On appeal, it is Plaintiff’s burden to show how the trial court abused its discretion in not granting leave to amend. Id. at 349. Defendant does not cite any authority to supports its proposition that Plaintiff must prove how its Complaint can be amended at this point in the matter. 13 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFE’S FIRST AMENDED COMPLAINT Mandegar v. Magnetic Sensors Corporation Lawrance A. Bohm, Esq. Case No.: 30-2016-00868428-CU-OE-CJC Bradley J. Mancuso, Esq. Ryann E. Hall, Esq. B o u M LA W GR OU P, IN C. 13 16 0 M I N D A N A O W A Y , SU IT E 28 0 MA RI NA DE L RE Y, CA LI FO RN IA 90 29 2 Oo 0 ~~ S N V B R W N N N N N N N N N N e m e e e d e m p d e m e t f e d pe c o ~~ O N nn A W N = O Y e N R E W N Mandegar v. Magnetic Sensors Corporation, et al. Superior Court of California, County of Orange Case No.: 30-2016-00868428-CU-OE-CJC PROOF OF SERVICE BY FEDERAL EXPRESS I, the undersigned declare that I am employed in the County of Los Angeles, State of California. I am over the age of eighteen (18) years and not a party to the within action; my business address is: 13160 Mindanao Way, Suite 280, Marina del Rey, California 90292. On May 12, 2017, I served the within: PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT MAGNETIC SENSORS CORPORATION’S DEMURRER TO PLAINTIFF’S FIRST AMENDED COMPLAINT By depositing a true copy thereof enclosed in a sealed envelope with delivery fees thereon fully prepaid in a box or other facility regularly maintained by Federal Express for overnight mail for collection to the individual(s) and address(s) as set forth below. Ross Shanberg, Esq. Attorneys for Defendant Shane Stafford, Esq. MAGNETIC SENSORS Aaron Bartz, Esq. CORPORATION SHANBERG, STAFFORD & BARTZ LLP 19200 Von Karman Ave., Suite 400 Irvine, California 92612 Dana Douglas, Esq. Attorney for Defendant, THE DOUGLAS LAW GROUP SIMON WORBOYS 600 West Santa Ana Blvd., Penthouse, Suite 1140 Santa Ana, California 92701 I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on May 12, 2017, in Marina del Rey, California. J PROOF OF SERVICE