Opposition To MtsOppositionCal. Super. - 4th Dist.February 7, 2019AN 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 ELECTRONICALLY FILED 22974 EL TORO ROAD, SUITE 100 For Eo LAKE FOREST, CA 92630-4961 yo Oran TELEPHONE NO. (949) 458-9675 FACSIMILE NO. (949) 458-9679 06/03/2019 at 06:13:00 PM EMAIL: REQ @QUINTLAW.COM; AHH @QUINTLAW.COM; GAA@QUIN 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 Plaintiff, Assigned for all Purposes to: Hon. Deborah Servino VS. Dept.: C-21 NEWPORT RESTAURANT VENTURE, LLC, a PLAINTIFF’S OPPOSITION TO California Limited Liability Company, dba DEFENDANTS’ MOTION TO GREAT MAPLE MODERN EATERY; GREAT STRIKE MAPLE LLC, a California Limited Liability . Company; OSTERIA DRAGO, LLC. a California | mare: tune 14, 2019 Limited Liability Company; JOSE DOE, an Dept.: C-21 individual, and DOES 1 to 100, Inclusive, Reservation No.: 73020516 Complaint Filed: February 7, 2019 Defendants. Trial Date: None Set 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 Motion to Strike cannot be sustained. This motion to strike is directed at: (1) the first cause of action for discrimination based on sex and (2) the allegations in the second cause of action regarding sexual harassment which occurred outside of the work environment. Just because the first cause of action is based on the same conduct as the second cause of action does not authorize the court to strike the COA. While employed at Great Maple, Ms. Kean was subjected to sexual discrimination and harassment, as well as assault and battery, retaliation and was wrongfully terminated after reporting the discrimination and harassment and other acts. (Complaint q[ 11). Further, the conduct described clearly was work related and were very much intrinsic to the work environment, and in fact commenced at the place of work, and was also allowed to continue within the work environment as evidenced by the Restaurant’s refusal to protect Plaintiff from the discrimination and harassment. IL. STATEMENT OF FACTS 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 q[ 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 | 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, 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 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 q 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 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”). III. ONA MOTION TO STRIKE, PLEADINGS MUST BE LIBERALLY CONSTRUED As with demurrers, motions to strike are heavily disfavored. “The policy of the law is to construe the pleadings ‘liberally ... with a view to substantial justice’ Thus, purely technical objections generally receive short shrift.” Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group rev. ed. 2009) § 7:197 [citing Code of Civil Procedure § 452]. Moreover, as long as the defect is correctable, an amended pleading will usually be allowed. See Grieves v. Superior Court (Fox) (1984) 157 Cal.App.3d 3 OPPOSITION TO DEMURRER ~N O N n n BR W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 159, 168 [relying on Code of Civil Procedure § 576 which authorizes courts to allow amendment at any time “in furtherance of justice.”’].) In ruling on the motion to strike, the allegations in the challenged pleading are considered to be true and are to be read in context rather than in isolation. See Clauson v. Superior Court (1998) 67 Cal. App.4th 1253, 1255. Applying the foregoing authority, the sufficiency of Plaintiff’s Complaint must be judged liberally, and the Motion must be denied. IV. LEGAL ARGUMENT a. Defendants Conduct Clearly Occurred Within a “Work-Related Context.” Even by Defendant’s own standard, the conduct clearly occurred within a “work-related context.” Capitol City Foods, Inc. v. Superior Court (1992) 5 Cal.App.4th 1042, 1045. "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." (I1d.) Defendant’s motion completely ignores the totality of the conduct, including that the conduct in fact commenced at the workplace when Jose waited for the Plaintiff to complete her shift. Plaintiff never even made it to her car before the harassment commenced. Defendant’s application of its own case law is disingenuous and frivolous. b. Harassment and Discrimination are Properly Pled as Two Distinct Causes of Action Again, pursuant to Defendant’s own authority, The FEHA treats discrimination and harassment as distinct offenses. The terms "discriminate" and "harass" appear in separate provisions of the FEHA and define distinct wrongs. (Ruby v. McKesson (2009) 47 Cal.4th 686, 705.) For example, Government Code Section 12940(a) makes it unlawful for "an employer because of ... sex .. of any person to discriminate against the person in compensation or in terms, conditions or privileges of employment." Section 129400(1) prohibits the distinct wrong of workplace harassment, including but not limited to sexual harassment. c¢. Even If There Are Defects in The Complaint, Plaintiff Should Be Allowed Leave To Amend To Cure The Defects 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 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 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 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”). V. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that the Court overrule Defendants’ Motion to Strike any Portions of the Complaint. Dated: June 3, 2019 QUINTILONE & ASSOCIATES By: RICHARD E. QUINTILONE II, ANDREW H. HAAS Attorneys for Plaintiff BRENNA KEAN 5 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 MTS 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
