Opposition To Demurrer

Opposition

Cal. Super. - 4th Dist.February 7, 2019

AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 RICHARD E. QUINTILONE II (SBN 200995) ANDREW H. HAAS (SBN 276143) QUINTILONE & ASSOCIATES 22974 EL TORO ROAD, SUITE 100 ELECTRONICALLY FILED Superior Court of Califarnia, a heer 40) 158.9075 County of Orange ELEPHONE NO. - FACSIMILE NO. (949) 458-9679 ALR FILL 20.12 mi TOR:1 2: GL PM EMAIL: REQ @QUINTLAW.COM; AHH @QUINTLAW.COM; Clerk of the Superior Court By & Clerk, Deputy Clerk Attorneys for Plaintiff, BRENNA KEAN, an individual, SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE CENTER BRENNA KEAN, an individual, Case No.: 30-2018-01025238-CU-OE-CJC _ Assigned for all Purposes to: Plaintiff, Hon. Deborah Servino Dept.: C-21 VS. PLAINTIFF’S OPPOSITION TO NEWPORT RESTAURANT VENTURE, LLC, a DEFENDANTS’ DEMURRER TO California Limited Liability Company, dba PLAINTIFF'S COMPLAINT GREAT MAPLE MODERN EATERY; GREAT do MAPLE LLC, a California Limited Liability Tos JMR 12 SL Company; OSTERIA DRAGO, LLC, a California Dept.: c21 Limited Liability Company; JOSE DOE, an Reservation No. 730205156 individual, and DOES 1 to 100, Inclusive, Complaint Filed: February 7, 2019 Trial Date: None Set Defendants. OPPOSITION TO DEMURRER AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 L INTRODUCTION Defendant’s Demurrer cannot be sustained. A demurrer is not the place to challenge disputed facts. “[A] hearing on a demurrer cannot be turned into a contested evidentiary hearing.” Unruh- Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 365. On review, the appellate court liberally construes the pleading in a reasonable manner and will liberally construe the pleading so as to achieve substantial justice between the parties, not to summarily dispose of a defective pleading that can be salvaged or amended as they can be here. Leonte v. ACS State and Local Solutions, Inc. (2004) 123 Cal. App.4th 521, 525; Page v. Los Angeles County Probation Dept. (2004) 123 Cal.App.4th 1135, 1141. The appellate court is also not concerned with how or even if Plaintiff can prove her allegations at trial. Canton Poultry & Deli, Inc. v. Stockwell, Harris, Widom & Woolverton (2003) 109 Cal. App.4th 1219, 1226; N.V. Heathorn, Inc. v County of San Mateo (2005) 126 Cal.App.4th 1526, 1531. The appellate court will ignore erroneous or confusing labels or captions by the pleader; it will focus on the facts alleged. Sunset Drive Corp. v. City of Redlands (1999) 73 Cal. App.4th 215, 218-219; Ananda Church of Self-Realization v. Massachusetts Bay Ins. Co. (2002) 95 Cal. App.4th 1273, 1281. Thus, the defendant cannot set forth arguments in their demurrer that, if proven true, would defeat plaintiff’s complaint. Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1144. The appellate court will presume that Plaintiff can prove the facts alleged. Hill v. City of Santa Barbara (1961) 196 Cal. App.2d 580, 585. Plaintiff has alleged facts in the Complaint that are not contradicted by the exhibits and judicially noticed documents. The court must assume the truth of Plaintiffs allegations. California Public Employees’ Retirement System v. Superior Court (2008) 160 Cal.App.4th 174, 178, disapproved of on other grounds in State Bd. of Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963. Plaintiff’s Complaint alleges: (1) Discrimination Based on Sex; (2) Harassment Based on Sex; (3) Retaliation; (4) Failure to Prevent Discrimination and Harassment; (5) Defamation; (6) Assault; (7) Battery; and (8) Wrongful Termination in Violation of Public Policy. In 2 OPPOSITION TO DEMURRER AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 The Complaint clearly apprises Defendants of the claims against them as well as the terms of the Employment. Brenna Kean (“Ms. Kean”) was a bartender and server with GREAT MAPLE restaurant (“Restaurant”) located at 1133 Newport Center Drive, Newport Beach, CA 92260 from October 15, 2017 to March 6, 2018. (Complaint q 10). While employed at Great Maple, Ms. Kean was subjected to sexual harassment, assault and battery, retaliation and was wrongfully terminated after reporting the harassment and other acts. (Complaint J 11). In or around February 2018, Ms. Kean was working around the bar area when a bar back, Jose, pushed her over and licked the inside of her nose. She reported this incident to the Manager on Duty (“MOD”) Ryan Cirel who, rather than being sympathetic to such an assault, laughed in response to this disgusting invasion of personal space. Mr. Cirel told Jose to stop but otherwise did nothing about it, and Jose continued to work at the restaurant and on information and belief, harass other female employees. (Complaint q 12). On the night of Sunday, March 4, 2018, Ms. Kean ended her shift at 9:45 p.m. Jose was waiting for her after the shift and told her he would walk her to her vehicle, which was parked on the top level of the parking structure where it is dark. (Complaint §[ 13). On the walk to the car, Jose grabbed Ms. Kean’s hand, called her his girlfriend, and told her she was going to come over. He asked for a ride to his car, and then entered into Ms. Kean’s vehicle. (Complaint q[ 14). Once in the car, Jose reached over, pulled her head with his hands and began to kiss her on her lips. Ms. Kean told him to stop several times, but he continued to kiss her without her permission. Ms. Kean did not immediately leave the vehicle because, having suffered a prior sexual assault, she froze up and was unable to fight back in the moment. He licked her nose again. Ms. Kean screamed at him to stop, and he then eventually exited the vehicle and fled the scene. She immediately called her friend and confidant, Steve Calvert, who told her to call her MOD Kayla Borkowski. Ms. Kean then called Ms. Borkowski asked Ms. Kean if Jose was following her and what she [Ms. Kean] wanted management to do. Ms. Kean believes she told her she wanted Jose to stay away from her and for the actions to stop. Ms. Kean, being badly shaken up, went to visit her friend, Diedre Stary, to console her. Diedre noted that Ms. Kean was visibly shaking while Ms. Kean told her about the attack. (Complaint J 15). Ms. Kean reported to work the following day, Monday, March 5, 2018 at 4:30 p.m. She met with managers Mo Stewart and Mr. Cirel to inform them of the incident. Mr. Stewart asked if Ms. Kean had filed a police report. Ms. Kean told 3 OPPOSITION TO DEMURRER AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 him she had not yet because it was already late at the time of the incident and she had immediately gone to her friend’s house. (Complaint J 16). On Tuesday, March 6, 2018 at 4:30 p.m., Ms. Kean again reported to work, where she was informed that she was being terminated on the spot for having smelled like alcohol while allegedly working at one point two months prior. As a bartender, Ms. Kean has been instructed by management to “taste” drinks after making them in order to ensure their quality. Furthermore, the alleged incident surrounding Ms. Kean’s “smelling” of alcohol was never reported at any time during the two months between when the event allegedly occurred and the day of her termination. Upon her termination, management refused to provide her with a copy of her schedule and refused to give her the personnel file or pay records. Following the termination, Ms. Kean was further defamed when Defendants, and each of them, alleged she was constantly drinking and/or drunk on the job, stealing inventory, impugning her career and occupation, and repeated the defamatory statements to co-workers and customers who did not have a need to know the information and were not managers entitled to have the information. These statements accused Ms. Kean of a crime and were made with malice and repeated outside of the “common interest” privilege. (Complaint J 18). These actions are in violation of the California Fair Employment and Housing Act (“FEHA”). Plaintiff sufficiently plead all the elements of each claim making the Demurrer moot. There are enough facts pled that would support a jury’s finding of “malice, oppression or fraud” warranting punitive damages. Based on the facts that were pled in Plaintiff's Complaint, Defendants’ Demurrer and Motion to Strike Punitive Damages should be denied, or in the alternative, the Court should grant Plaintiff leave to amend to cure any deficiencies. IL. THERE IS NO BASIS TO SUSTAIN THE DEMURRER In the construction of a pleading, for the purpose of determining its effects, its allegations must be liberally construed, with a view to substantial justice between the parties. Code of Civil Procedure § 452. Liberal interpretation is the standard and as such this Court must construe pleadings liberally as against a demurrer. Gerritt v. Fullerton Union High School District, (1938) 24 Cal. App.2d 482, 486; Sexter v. Phillip Morris, Inc., (1975) 54 Cal.App.3d 7, 18; Perez v. Golden Empire Transit Dist. (2012) 209 Cal. App.4th 1228 (holding that where allegations are subject to different reasonable interpretations, court must draw “inferences favorable to the plaintiff, not the defendant”). 4 OPPOSITION TO DEMURRER AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Plaintiff's allegations must be accepted as true for the purpose of ruling on the demurrer. Del E. Webb Corp., v. Structural Materials Co., (1981) 123 Cal.App.3d 593, 604. For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. Serrano v. Priest, (1971) 5 Cal.3d 584, 591. Applying the foregoing authority, the sufficiency of Plaintiff’s Complaint must be judged liberally. Defendants’ contention that the allegations lack sufficient factual bases or are uncertain must be overruled. Plaintiff has set forth suitable facts, which would entitle Plaintiff to relief. Accordingly, Defendants’ Demurrer should be overruled in its entirety. III. THE COMPLAINT ALLEGES THE REQUIRED ELEMENTS OF SEX DISCRIMINATION AND HARASSMENT The Complaint sufficiently alleges the elements of a prima facie case for sex discrimination under the Fair Employment and Housing Act (“FEHA”). The Complaint includes facts that if true would amount to severe or pervasive conduct, leaving the final determination with a trier of fact. All of the alleged conduct occurred either at the workplace or in a sufficiently work-related context and there was a strong nexus to the employment. In 1980, the EEOC issued Guidelines stating that “sexual harassment” is a form of sex discrimination prohibited by Title VII. Meritor Sav. Bank, FSB v. Vinson (1986) 477 US 57, 64, 106 S.Ct. 2399, 2404. As you are aware, given the nature of discrimination, the initial prima facie showing for such a claim is relatively low. California has adopted the three-stage burden-shifting test for discrimination claims set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. ‘This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.” Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 307. Title VII bars “discrimination” based on “sex.” (For purposes of Title VII, “sex” includes pregnancy; see Rutter Guide 7:295.) Defendants’ claims that “The Complaint fails to allege all essential elements.” (Demurrer Pg. 4, Line 17). The Complaint sufficiently alleges the elements of a prima facie case for sex discrimination under the Fair Employment and Housing Act (“FEHA”). The Complaint includes facts that if true would amount to severe or pervasive conduct, leaving the final determination with a trier of fact. All of the alleged 5 OPPOSITION TO DEMURRER AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 conduct occurred either at the workplace or in a sufficiently work-related context and there was a strong nexus to the employment. Plaintiff sufficiently pleads in Complaint { 12, which include further detail, stating in pertinent part that: “[Kean] reported this incident to the Manager on Duty (“MOD”) Ryan Cirel who, rather than being sympathetic to such an assault, laughed in response to this disgusting invasion of personal space.” Additionally, when “Ms. Kean was again harassed on March 4, 2017, and the harassment was reported to the supervisors, who did not take action to protect her, and instead let her go.” See Complaint {q 15-17. Further, each and every claim contains damage allegations sufficient to overrule a Demurrer. See First COA 27, 28, 29 and Second COA qq 37, 38, 39, 40. A. The Complaint Alleges the Required Elements of Sex Discrimination and Harassment Given the nature of discrimination, the initial prima facie showing for such a claim is relatively low. California has adopted the three-stage burden-shifting test for discrimination claims set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792. “This so-called McDonnell Douglas test reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially. Thus, by successive steps of increasingly narrow focus, the test allows discrimination to be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily explained.” Sandell v. Taylor-Listug, Inc. (2010) 188 Cal. App.4th 297, 307. Title VII bars “discrimination” based on “sex.” Defendants argue that in order to state a claim for discrimination, Plaintiff must allege facts showing that: (1) she was a member of a protected class; (2) she performed competently in her position; (3) she suffered an adverse employment action; and (4) some circumstance, other than the adverse action itself, suggesting a discriminatory motive based on the protected class or status at issue. See Demurrer, p. 4, lines 7-11, citing Guz v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 354-56. Defendant further argues that Plaintiff must show that similarly situated employees outside the protected class received more favorable treatment. See Demurrer, p. 4, lines 14-16, citing McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, 804. Plaintiff has more than met her initial burden and has alleged clear facts, including direct (and even indirect) statements of a discriminatory nature. Defendant discriminated against Plaintiff on the basis of her sex. Plaintiff was discriminated against when she reported an assault by a fellow employee to her manager on duty who laughed at her and refused 6 OPPOSITION TO DEMURRER AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 to discipline the perpetrating employee. This decision was substantially motivated by the fact Plaintiff is a woman and more than meets the initial burden for discrimination. Forcing a woman to make a choice between being harassed without complaint, is precisely the type of discrimination and harassment the federal and state legislatures have enacted laws to protect against. To ignore these facts as alleged, is done at Defendant’s peril and at the unnecessary expense and cost of the parties and ultimately the Court. As such, Plaintiff has pled sufficient facts to allege Sex Discrimination and Harassment. B. The Complaint Alleges Sufficiently Pervasive or Severe Conduct “Hostile environment” sexual harassment cases may involve various forms of verbal and physical conduct, of both a sexual or nonsexual nature, which have the purpose or effect of creating a hostile or offensive working environment. To state a prima facie case for “hostile environment” sexual harassment under either Title VII or the FEHA, plaintiff must allege that: (1) plaintiff was subjected to unwelcome sexual advances, conduct or comments; (2) the harassment complained of was based on sex; and (3) the harassment was “so severe or pervasive” as to “alter the conditions of the victim's employment and create an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson (1986) 477 US 57, 67, 106 S.Ct. 2399, 2405-2406 (emphasis added); see also Fisher v. San Pedro Peninsula Hosp. (1989) 214 CA3d 590, 608, 262 CR 842, 851-adopting federal case law for hostile environment sexual harassment claims under California law; Thompson v. City of Monrovia (2010) 186 CA4th 860, 876, (citing text)]. Defendants’ Demurrer acknowledges the proper standard; however it ignores the severity of the incidents, and instead focuses on the pervasiveness. Defendants’ state the, “harassment cause of action is fatally defective for at least three reasons: (1) the Complaint does not allege either pervasive or severe conduct; (2) the Complaint does not allege an abusive or hostile working environment; and (3) most of the offensive conduct occurred outside of the work place and is not actionable.” (Demurrer, p. 6, lines 7- 10). In order to survive, the demurrer would need to show that neither are pled or applicable. As such, severe conduct, even in a singular occurrence, is sufficient. Defendant ignores this prong altogether. As such, Plaintiff has pled sufficient facts to allege Sexual Harassment. mn mn mn 7 OPPOSITION TO DEMURRER AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 C. The Complaint Alleges the Offensive Conduct Occurred During Work and in a Work- Related Context Defendants argue that under the FEHA, “the harassing conduct ‘must occur in a work-related 299 context.” See Demurrer, p. 9, line 24, citing Capitol City Foods, Inc. v. Superior Court (1992) 5 Cal.App.4th 1042, 1048. Defendants fail to address that both alleged incidents occurred at the work place. The first was inside the workplace itself, and the second occurred when the perpetrator walked Plaintiff to her car immediately following their work-shifts. See Complaint, 13. Moreover, this is clearly a triable issue and a factual determination for the trier of fact. Moreover, the cases the Demurrer cites are inapposite. Plaintiff did not “go out for a drink” like in Capitol City Foods, as cited in Defendants’ Demurrer. The perpetrator in this case waited for her at the end of her shift. Defendants” Demurrer even acknowledges, under FEHA, “Unwelcome sexual conduct perpetrated by an agent, supervisor, or co-worker, which occurs elsewhere but is in some fashion work-related also constitutes sexual harassment within the meaning of the Act. Ibid. The conduct here clearly meets this very low burden, as Plaintiff was confronted before exiting the premises, as Plaintiff’s ability to walk to her parked vehicle after work falls under the purview of being work-related, and certainly, at the very least, alleges a triable issue of fact. IV. THE THIRD CAUSE OF ACTION IS SUFFICIENTLY PLED If Plaintiff can show that harassment by coworkers followed her complaints about being sexually harassed, and that the employer had actual or constructive knowledge of the coworkers’ retaliatory conduct and either participated in and encouraged the conduct, or did not act to end it, the harassment may constitute an adverse employment action for which the employer may be liable under a retaliation theory. Kelley v. Conco Cos. (2011) 196 CA 4th 191, 212-214. Government Code § 12940(f) prohibits retaliation against any employee who opposes any discrimination or engages in any legally protected activity. A “materially adverse” action need not affect the terms and conditions of employment; rather, it covers any action that could dissuade a reasonable worker from making or supporting a charge of discrimination. Burlington Northern & Santa Fe Ry. Co. v. White (2006) 548 US 53, 57; Further, harassment in and of itself is a form of retaliation and unlike quid pro quo claims there is no requirement that plaintiff suffer loss of tangible job benefits or actual injury in order to state a hostile environment harassment claim. See Harris v. Forklift Systems, Inc. (1993) 510 US 17, 21; 8 OPPOSITION TO DEMURRER AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Gregory v. Daly (2nd Cir. 2001) 243 F3d 687, 691] The FEHA codifies the foregoing rule: “Loss of tangible job benefits shall not be necessary in order to establish harassment.” Govt. Code § 12940()(1). V. FAILURE TO PREVENT HARASSMENT IS SUFFICIENTLY PLED Here, Plaintiff has pled enough facts to allege Failure to Prevent Discrimination and Harassment by Defendants. As was stated in Plaintiff’s Complaint, Defendants have engaged conduct with the intent of discriminating and harassing Plaintiff on account of her sex, among other things. (Complaint | 54). If Plaintiff can show that discrimination and harassment followed her complaints about being sexually harassed, and that the employer had actual or constructive knowledge of the coworkers’ retaliatory conduct and either participated in and encouraged the conduct, or did not act to end it, the harassment may constitute an adverse employment action for which the employer may be liable under a retaliation theory. Kelley v. Conco Cos. (2011) 196 Cal. App. 4th 191, 212-214. Failure to Prevent Harassment is a separate basis for liability under the FEHA: It is an unlawful employment practice in California for an employer “to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” and the duty is “affirmative and mandatory.” Government Code § 12940(k). Here, Defendant not only failed to take all reasonable steps to prevent harassment, but they failed to take any steps to prevent such claims. Plaintiff complained to company management about Defendant Jose Doe’s inappropriate actions which a vast number of other employees either witnessed or were aware of, and no action was taken to protect Plaintiff or other similarly situated females with breasts from being accosted. As a result, the harassment and discrimination of Plaintiff by Defendant Jose Doe and other management was left unpunished. By failing to take any action against the violations brought to the attention of Defendant’s supervisors, Defendant is liable for damages alleged in the Complaint. As such, Plaintiff has stated sufficient facts to allege a claim for Failure to Prevent Discrimination and Harassment. VI. THE COMPLAINT ALLEGES SUFFICIENT FACTS FOR DEFAMATION Defendant alleges that Plaintiff fails to state sufficient facts to support her discrimination and harassment claims, therefore her claim for failure to prevent fails. (Demurrer, p. 13, lines 1-2). However, Defendants Demurrer ignores the factual background incorporated by reference in each cause of action, which set forth facts that Plaintiff was given an ultimatum to either choose her pregnancy or her 9 OPPOSITION TO DEMURRER AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 position with the company - a bad faith proposal if there ever was one. (Complaint J 13). Therefore, this fact alone is sufficient at this stage of the pleadings. Further, even assuming arguendo, the claim was made without alleging any facts, which would be consistent with proving this cause of action and the company’s failure to appropriately engage in the process, and proving, in essence, a negative. As such, Plaintiff has stated sufficient facts to allege a claim for failure to enter into the interactive process. VII. THE COMPLAINT SUFFICIENTLY PLEADS WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY Defendants argue that Plaintiff fails to allege that her termination was substantially motivated by a violation of public policy. Defendants further argue, “The elements of a claim for wrongful discharge in violation of public policy are: (1) an employer-employee relationship; (2) the employer terminated the plaintiffs employment; (3) the termination was substantially motivated by a violation of public policy; and (4) the discharge caused the plaintiff harm." See Demurrer, p. 15, lines 12-13 citing Yau v. Allen (2014) 229 Cal.AppAth 144, 154. Defendants ignore the facts stated in Plaintiff’s complaint that demonstrate the timeline of events that occurred immediately after Plaintiff made complaints of sexual harassment and discrimination. (Complaint q[ 83). The excuse that Defendant gave was merely pretextual and the real reason why Plaintiff was terminated was because of her sex in violation of the California Government Code § 12940. As such, Plaintiff has pled sufficient facts to allege Wrongful Termination in Violation of Public Policy. VIII. PLAINTIFF IS REQUESTING LEAVE TO AMEND Courts are very liberal in permitting amendments, not only where a complaint is defective in form, but also where substantive defects are apparent: “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” Angie M. v. Superior Court (Hiemstra) (1995) 37 Cal. App.4th 1217, 1227; Stevens v. Superior Court (API Auto Ins. Services) (1999) 75 Cal. App.4th 594. In fact, unless the complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion, irrespective of whether leave to amend is requested or not. McDonald v. Superior Court (Flintkote Co.) (1986) 180 Cal.App.3d 297, 303-304; see also City of Stockton v. Superior Court (Civic Partners Stockton, LLC) (2007) 42 Cal.4th 730, 747 (holding that where 10 OPPOSITION TO DEMURRER AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 plaintiff has not had opportunity to amend complaint in response to demurrer, “leave to amend is liberally allowed as a matter of fairness unless the complaint shows on its face that it is incapable of amendment”). As such, if the Court does find that there are defects in the Complaint, the Court should grant leave to amend for Plaintiff to fix such defects. IX. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that the Court overrule Defendants’ demurrer to the Complaint, or, in the alternative, Plaintiff respectfully requests the Court to grant Plaintiff leave to amend in order to cure any defects that are in the Complaint. Dated: June 3, 2019 QUINTILONE & ASSOCIATES By: RICHARD E. QUINTILONE II, ANDREW H. HAAS Attorneys for Plaintiff BRENNA KEAN 11 OPPOSITION TO DEMURRER OO 00 J A Ln Bx W N = N N N N N N N N N mm e m e m e m e m e m e m e m e m c o NN A N Un RA W O N D = O OO N N N R E W I N D = O PROOF OF SERVICE I, the undersigned, declare as follows: I am a citizen of the United States, over the age of 18 years, and not a party to the within action. I am an employee of or agent for Quintilone & Associates, whose business address is 22974 El Toro Rd., Suite 100, Lake Forest, CA 92630-4961. On June 3, 2019, I served the foregoing document(s): Opposition to Demurrer on the following parties in this action addressed as follows: SEE ATTACHED SERVICE LIST (BY MAIL) 1 caused a true copy of each document, placed in a sealed envelope with postage fully paid, to be placed in the United States mail at Lake Forest, California. I am "readily familiar" with this firm's business practice for collection and processing of mail, that in the ordinary course of business said document(s) would be deposited with the U.S. Postal Service on that same day. I understand that the service shall be presumed invalid if the postal cancellation date or postage meter date on the envelope is more than one day after the date of deposit for mailing contained on this affidavit. (BY PERSONAL SERVICE) 1 delivered each such document by hand to each addressee above. (BY OVERNIGHT DELIVERY) 1 caused a true copy of each document, placed in a sealed envelope with delivery fees provided for, to be deposited in a box regularly maintained by Federal Express or Overnight Express. I am readily familiar with this firm's practice for collection and processing of documents for overnight delivery and know that in the ordinary course of Quintilone & Associates’ business practice the document(s) described above will be deposited in a box or other facility regularly maintained by Federal Express or Overnight Express or delivered to a courier or driver authorized by Federal Express or Overnight Express to receive documents on the same date it is placed at Quintilone & Associates for collection. (BY FACSIMILE) By use of facsimile machine number 949.458.9679, I served a copy of the within document(s) on the above interested parties at the facsimile numbers listed above. The transmission was reported as complete and without error. The transmission report was properly issued by the transmitting facsimile machine. (BY ELECTRONIC SERVICE) 1 delivered each such document by electronic means pursuant to California Civil Code, Code of Civil Procedure, the Local Rules and/or FRCP § 5(b)(2), et seq. Executed on June 3, 2019 at Lake Forest, California. X (FEDERAL) I declare under penalty of perjury that the above is true and correct. (STATE) I declare under penalty of perjury that the above is true and correct. ANDREW H. HAAS -1- PROOF OF SERVICE OO 00 J A Ln Bx W N = ID DN DN N N N N Y Y m = = = = es e s e l e s co N N L t A W N = O OO N N N B A W ND = O Michael M. Daly Esq. Daly Law Firm One America Plaza 600 West Broadway, Suite 400 San Diego, California 92101 Tel: 619.525.7000 Fax: 619.525.7001 E-mail: mike @dalylawfirm.co SERVICE LIST Attorney for defendants D- PROOF OF SERVICE