declaration of plaintiffs counsel in support of opposition to second dCal. Super. - 1st Dist.August 6, 2021Edward M. Anaya [SBN 233354] Anaya Law 1728 Ocean Ave., #240 San Francisco, CA 94112 Telephone: (415) 300-0871 E-mail: edward@anayalawsf.com Attorney for Plaintiff, DARLENE M. ANAYA SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO DARLENE M. ANAYA, an individual, Plaintiff, vs. SAN FRANCISCO UNIFIED SCHOOL DISTRICT, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CGC-20-587614 Declaration of plaintiff's counsel, Edward M. Anaya, in Support of Opposition to second demurrer by defendant SFUSD Date: April 13, 2021 Time: 9:30 a.m. Dept.: 302 Honorable Richard B. Ulmer I, Edward Marcelino Anaya, hereby declare: 1) I am an attorney licensed to practice law in the State of California and am plaintiff's counsel in the above-captioned matter. 2) Defendant's first demurrer was taken off calendar because defendant failed to show meet and confer efforts. 3) Defendant's second demurrer again fails to include the full extent of the meet and confer efforts between counsel. In letters dated December 15 and December 21, 2020, plaintiff's counsel explained the legal and factual basis for the disputed claims. A true and correct copy of these letters are attached as Exhibits A and B. 4) The attached letters are relevant, because they respond, in detail, to the same concerns that defendant now raises in their second demurrer. Declaration of plaintiff's counsel in support of opposition to demurrer Page 1 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 03/29/2021 Clerk of the Court BY: RONNIE OTERO Deputy Clerk I declare, under penalty of perjury of the laws of the State of California, that the foregoing is true and correct. DATED: March 29, 2021 By:__________________________ Edward Marcelino Anaya Counsel for Plaintiff Declaration of plaintiff's counsel in support of opposition to demurrer Page 2 of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT A 1728 Ocean Ave., # 240 | San Francisco, CA 94112 Tel: (415) 300-0871 | edward@anayalawsf.com December 15, 2020 VIA E-MAIL AND U.S. MAIL Ms. Heather G. Hensley, Esq. Bertrand, Fox, Elliot, Osman & Wenzel 2749 Hyde Street San Francisco, CA 94109 hhensley@bfesf.com Re: Plaintiff's complaint Ms. Hensley, This letter responds to your e-mail dated December 11, 2020, regarding our complaint. Age discrimination claim Your e-mail states, “Ms. Anaya's cause of action for age discrimination is subject to demurrer because she does not attribute her adverse employment action to the fact that she was over 40.” However, in the Complaint, at Paragraph 23, we state, “Plaintiff is a senior citizen.” That allegation is then incorporated by reference into our age discrimination claim. Moreover, in the Complaint, at Paragraph 100, it reads, “The District took adverse employment action against Plaintiff because of her age, including, but not limited to: [list of alleged adverse employment actions]”. Failure to prevent harassment, discrimination or retaliation Your e-mail states, “I am not aware of a private right of action for “negligent failure to prevent harassment, discrimination or retaliation.” Our sixth cause of action is for “Failure to Prevent Harassment, Discrimination, or Retaliation.” This cause of action is based on subsection “k” of Section 12940 (FEHA), which specifies that it is illegal, “For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” This cause of action is recognized by California courts. See, e.g., Northrop Grumman Corp. v. Workers’ Comp. Appeals Bd. (2002) 103 Cal.App.4th 1021, 1035 (“The employer’s duty to prevent harassment and discrimination is affirmative and mandatory.”) (Page 1 of 2) Edward M. Anaya Attorney-at-Law Medical privacy violations Your e-mail states, “Regarding the cause of action for medical privacy violations, I am also unaware whether this … constitutes a private right of action.” Our seventh cause of action for “Medical Privacy Violations” is based on subsection “(f) (1)” of Section 12940 (FEHA), which specifies that it is illegal for an employer, among other things, “ ... to make any inquiry whether an employee has a mental disability, physical disability, or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.” As set forth in the factual allegations of the Complaint, at Paragraph 38, “plaintiff received an e-mail from Rachel Noto that someone would be reaching out to plaintiff regarding plaintiff's “medical needs.” Furthermore, at Paragraph 39, it states, “Based on information and belief, Rachel Noto and/or her supervisor, Alysse Castro, breached plaintiff's medical privacy by communicating with HR regarding plaintiff's medical history and/or medical conditions without cause or permission.” Failure to reasonably accommodate Your e-mail states that the failure to reasonably accommodate claim may be subject to demurrer because, “the complaint merely states that she did not receive one potential reasonable accommodation.” However, a single instance of a failure to accommodate may be sufficient to establish a violation. See, e.g., A.M. v. Albertsons, LLC (2009) 178 Cal. App. 4th 455, 465. Moreover, plaintiff's complaint alleges at least two failures to provide reasonable accommodation. First, at Paragraph 61, it states, “SFUSD failed to accommodate plaintiff's disability while she was assigned at SOTA.” Second, at Paragraph 71, it states, “[The] District refused to consider plaintiff for a Teacher on Special Assignment (TSA) position, one of the positions that would accommodate her disability, despite plaintiff having previously worked in two TSA positions within the District.” These allegations are then incorporated by reference into the failure to reasonably accommodate claim. Conclusion If the District chooses to demurrer, we will seek leave to amend. Please contact me with any further questions or concerns. Very Truly Yours, Edward M. Anaya EMA: [2020.12.15.Letter.to.Bertrand.Fox.re.complaint.doc] (Page 2 of 2) EXHIBIT B 1728 Ocean Ave., # 240 | San Francisco, CA 94112 Tel: (415) 300-0871 | edward@anayalawsf.com December 21, 2020 VIA E-MAIL AND U.S. MAIL Ms. Heather G. Hensley, Esq. Bertrand, Fox, Elliot, Osman & Wenzel 2749 Hyde Street San Francisco, CA 94109 hhensley@bfesf.com Re: Plaintiff's complaint Ms. Hensley, This is a further letter regarding plaintiff's complaint in response to your meet and confer e-mail dated December 19, 2020. Age discrimination claim Your e-mail expresses concern that our age discrimination claim does not mention that plaintiff's age was a “substantial motivating reason” for the alleged adverse employment action. You are correct, technically, a plaintiff must prove causation to a “substantial motivating factor” or reason. However, at this point, we believe that the allegations of the complaint are sufficient to give notice to the district of our claim and “enable preparation of a defense.” See, e.g., Doe v. City of Los Angeles, 42 Cal. 4th 531, 549-551. (“Less particularity in pleading is required when it appears that defendant has superior knowledge of the facts, so long as the pleading gives notice of the issues sufficient to enable preparation of a defense.”) Furthermore, we allege, in the Complaint, at Paragraph 100, that we believe the discrimination was “because of her age.” Although the complaint is not “artfully pled” it is sufficient to show entitlement to relief. See, e.g., Selby Realty Co. v. City of San Buenaventura, 10 Cal. 3d 110, 123 (1973)(“A demurrer should be overruled if it appears that there is any entitlement to relief, even if the facts are not artfully pled or are intermingled with irrelevant facts.”) Based on the foregoing, we believe the allegations of our age discrimination claim are sufficient to survive demurrer. (Page 1 of 3) Edward M. Anaya Attorney-at-Law Failure to reasonably accommodate Your e-mail expresses concern that plaintiff's complaint only specifies “one potential reasonable accommodation.” At this early stage of the litigation, we are not in possession of all the facts. Discovery will be necessary to determine additional accommodations that may have been available to plaintiff. We believe that the allegations of the complaint are sufficient. To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged. See, e.g., C.A. v. William S. Hart Union High School Dist., 53 Cal. 4th 861, 872 (2012). Based on the foregoing, we believe the allegations of our failure to accommodate claim are sufficient to survive demurrer. Failure to prevent harassment, discrimination or retaliation Your e-mail expresses concern that this claim is titled, “negligent failure to prevent harassment, discrimination or retaliation.” You appear to disagree that this claim sounds under negligence. Claims under § 12940 (FEHA) are based on negligence. See, e.g., Trujillo v. North County Transit Dist., 63 Cal. App. 4th 280, 286 - 288 (“we examine the section 12940 claim … with regard to whether the usual elements of a tort, enforceable by private plaintiffs, have been established: defendants' legal duty of care toward plaintiffs, breach of duty (a negligent act or omission), legal causation, and damages to the plaintiff.” (emphasis added)). Based on the foregoing, we believe the allegations of this claim are sufficient to survive demurrer. Medical privacy violations You assert that we do not allege enough facts in support of this claim. However, at this early stage of the litigation, we are not in possession of all the facts. The limited role of a demurrer is to test the legal sufficiency of a complaint. Donabedian v. Mercury Ins. Co., 116 Cal. App. 4th 968, 994 (2004). Furthermore, we believe that the allegations of Rachel Noto or Alysse Castro's involvement, as stated in Paragraph 39, are sufficient to “enable preparation of a defense.” See, e.g., Doe v. City of Los Angeles, supra, 42 Cal. 4th 531, 549-551. Based on the foregoing, we believe the allegations of this claim are sufficient to survive demurrer. (Page 2 of 3) Service of summons and complaint The complaint was served on November 19, 2020. Attached is a file-endorsed proof of service and summons. (I don't know what the December 10th date you mention refers to.) Please contact me with any further questions or concerns. Very Truly Yours, Edward M. Anaya EMA: [2020.12.21.Letter.to.Bertrand.Fox.re.complaint.further.doc] (Page 3 of 3) PROOF OF SERVICE OF SUMMONS Form Adopted for Mandatory Use Judicial Council of California POS-010 [Rev. July 1, 2004] POS-010 PROOF OF SERVICE OF SUMMONS ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): FOR COURT USE ONLY SUPERIOR COURT OF CALIFORNIA, COUNTY OF PLAINTIFF/PETITIONER: DEFENDANT/RESPONDENT: CASE NUMBER: ATTORNEY FOR (Name): TELEPHONE NO.: Code of Civil Procedure, § 417.10 Ref. No. or File No.: Edward Anaya, 233354 Edward M. Anaya, Esq. 1728 Ocean Avenue, #240 San Francisco, CA 94112 (415) 300-0871 Plaintiff CGC-20-587614 BY FAX1. At the time of service I was a citizen of the United States, at least 18 years of age and not a party to this action. Summons, Civil Case Cover Sheet, Complaint, Notice to Plaintiff, Alternative Dispute Resolution (ADR) Information Package 3. a. Party served: San Francisco Unified School District San Mateo 521 Edatil P. Carmona Darlene M. Anaya, an individual San Francisco Unified School District b. Person Served: Superintendent Dr. Vincent Matthews, SFUSD - Person Authorized to Accept Service of Process 11/23/2020 4. Address where the party was served: 555 Franklin Street San Francisco, CA 94102 5. I served the party at (time): 6. The "Notice to the Person Served" (on the summons) was completed as follows: 8. I declare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct. b. by substituted service. On (date): 11/19/2020 2:14PM I left the documents listed in item 2 with or in the presence of: Reclosado DOE (Hisp/M/30s/5'8/170#) - Custodian of Records (1) (business) a person at least 18 years of age apparently in charge at the office or usual place of business of the person to be served. I informed him or her of the general nature of the papers. San Francisco Unified School District $ 2. I served copies of: Person who served papers7. a. Name: e. I am: d. The fee for service was: c. Telephone number: b. Address: (3) registered California process server. (ii) Registration No. (iii) County (i) Employee or independent contractor. Date: (SIGNATURE)(NAME OF PERSON WHO SERVED PAPERS) d. on behalf of: under: CCP 416.50 (public entity) (4) A declaration of mailing is attached. [ ev. Jan 1, 2007] Edatil P. Carmona One Legal - P-000618-Sonoma 1400 North McDowell Blvd, Ste 300 Petaluma, CA 94954 415-491-0606 104.75 Superior Court of California, San Francisco County 400 McAllister Street San Francisco, CA 94102 OL# 15455577 ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 12/09/2020 Clerk of the Court BY: YOLANDA TABO-RAMIREZ Deputy Clerk ATTORNEY OR PARTY WITHOUT ATTORNEY (Name and Address): TELEPHONE NO.: FOR COURT USE ONLY ATTORNEY FOR (Name): Ref. No. or File No. Insert name of court, judicial district or branch court, if any: PLAINTIFF: DEFENDANT: PROOF OF SERVICE BY MAIL Edward Anaya, 233354 (415) 300-0871 Edward M. Anaya, Esq. 1728 Ocean Avenue, #240 Plaintiff San Francisco-McAllister 400 McAllister Street San Francisco, CA 94102 Darlene M. Anaya, an individual San Francisco Unified School District CGC-20-587614 BY FAX I am a citizen of the United States, over the age of 18 and not a party to the within action. My business address is 1400 N. McDowell Blvd, Petaluma, CA 94954. On 11/24/2020, after substituted service under section CCP 415.20(a) or 415.20(b) or FRCP 4(e)(2)(B) or FRCP 4(h)(1)(B) was made (if applicable), I mailed copies of the: Summons, Civil Case Cover Sheet, Complaint, Notice to Plaintiff, Alternative Dispute Resolution (ADR) Information Package San Francisco Unified School District Superintendent Dr. Vincent Matthews, SFUSD 555 Franklin Street San Francisco, CA 94102 I am readily familiar with the firm's practice for collection and processing of documents for mailing. Under that practice, it would be deposited within the United States Postal Service, on that same day, with postage thereon fully prepaid, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one (1) day after date of deposit for mailing in affidavit. Fee for Service: $ Travis Carpenter I declare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct and that this declaration was executed on 11/ /2020 at Petaluma, California. to the person to be served at the place where the copies were left by placing a true copy thereof enclosed in a sealed envelope, with First Class postage thereon fully prepaid, in the United States Mail at Petaluma, California, addressed as follows: 104.75 CASE NUMBER: OL# 15455577 One Legal - P-000618-Sonoma 1400 North McDowell Blvd, Ste 300 Petaluma, CA 94954 San Francisco, CA 94112
