Jane Doe v. International Business Machines Corporation et al

NOTICE OF MOTION AND MOTION to Dismiss Case and/or Strike Pursuant to Rules 12

C.D. Cal.July 12, 2016

Case No.: 2:16-CV-4914.JPR 1 DEFENDANT’S NTC OF MTN AND MTN TO DISMISS AND/OR STRIKE PURSUANT TO RULES 12(B)(1) AND 12(F) 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 Samantha N. Hoffman (SBN 212135) HoffmanS@jacksonlewis.com Nicole M. Shaffer (SBN 244366) Nicole.shaffer@jacksonlewis.com JACKSON LEWIS P.C. 5000 Birch Street, Suite 5000 Newport Beach, CA 92660 (949) 885-1360- Office (949) 885-1380 - Fax Attorneys for Defendant INTERNATIONAL BUSINESS MACHINES CORPORATION UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION JANE DOE, an individual, Plaintiff, vs. INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York Corporation; BRIAN CHU, an individual and DOES 1-100, inclusive, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE No. 2:16-cv-4914 JPR DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE PURSUANT TO FEDERAL RULES 12(b)(1) AND 12(f); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [Filed concurrently with Declaration of Nicole M. Shaffer; [Proposed] Order; Proof of Service] Date: August 11, 2016 Time: 10:00 a.m. Place: 312 N. Spring Street, Los Angeles Judge: Hon. Jean P. Rosenbluth Case 2:16-cv-04914-JPR Document 7 Filed 07/12/16 Page 1 of 12 Page ID #:145 Case No.: 2:16-CV-4914.JPR 2 DEFENDANT’S NTC OF MTN AND MTN TO DISMISS AND/OR STRIKE PURSUANT TO RULES 12(B)(1) AND 12(F) 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 TO THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION AND TO PLAINTIFF JANE DOE AND HER ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on Thursday, August 11, 2016, at 10:00 a.m., before the Honorable Judge Rosenbluth in Courtroom 827-A of the above-named Court, located at 312 N. Spring Street, Los Angeles, CA 90012, Defendant INTERNATIONAL BUSINESS MACHINES CORPORATION (“IBM” or “Defendant”) will move the Court to dismiss and/or strike the Complaint filed by Plaintiff under the fictitious name “Jane Doe” pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(f). This Motion is and will be made pursuant to Rule 12(b)(1) and 12(f) of the Federal Rules of Civil Procedure on the grounds that Plaintiff filed her Complaint under a fictitious name without first obtaining leave of Court, in violation of Rule 10(a) of the Federal Rules of Civil Procedure. Additionally, should Plaintiff subsequently request leave of Court to file an amended Complaint using a fictitious name, the request should be denied as improper and/or futile. This Motion is made following the conference of counsel pursuant to L.R. 7-3 which took place beginning on June 28, 2016. See Declaration of Nicole M. Shaffer, ¶¶ 3- 8. This Motion is based on this Notice of Motion and Motion, the Memorandum of Points and Authorities that follows, the Declaration of Nicole M. Shaffer, all records presently on file with this Court, all other matters of which this court shall or may take judicial notice, any reply Defendant may make, and such additional evidence and argument as may be presented to the Court before or during the hearing on this Motion. Dated: July 12, 2016 JACKSON LEWIS P.C. By: /s/ Nicole M. Shaffer Samantha N. Hoffman Nicole M. Shaffer Attorneys for Defendant INTERNATIONAL BUSINESS MACHINES CORPORATION Case 2:16-cv-04914-JPR Document 7 Filed 07/12/16 Page 2 of 12 Page ID #:146 Case No.: 2:16-CV-4914.JPR 1 DEFENDANT’S NTC OF MTN AND MTN TO DISMISS AND/OR STRIKE PURSUANT TO RULES 12(B)(1) AND 12(F) 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 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Pursuant to Federal Rules of Civil Procedure (“Rule”) 12(b)(1) and 12(f), Defendant INTERNATIONAL BUSINESS MACHINES CORPORATION (“Defendant” or “ÍBM”) moves for an order from the Court dismissing or striking the Complaint of Plaintiff JANE DOE (“Plaintiff”) because it was filed under a fictitious name without prior leave of Court. Moreover, even if Plaintiff is not required to receive leave of Court prior to filing under a fictitious name, Plaintiff fails to meet the high burden she has to demonstrate that she should be allowed to proceed using a fictitious name. In the Ninth Circuit, a plaintiff is only permitted to use a pseudonym where there is a threat of retaliatory physical or mental harm, where the plaintiff might be compelled to admit to an intention to engage in illegal, prosecutable conduct, or under special circumstances where the plaintiff’s privacy interests outweigh both the prejudice to the defendant and the public’s recognized interest in knowing the plaintiff’s identity. Here, Plaintiff is no longer employed by Defendant and alleges no threat of violence, so there is no reasonable threat of retaliation. Additionally, Plaintiff never indicates that identification might expose her to potential prosecution. Furthermore, Plaintiff provides no facts to support that her case represents the unusual and rare case under which her undisclosed privacy interests outweigh the inevitable prejudice to Defendant and the public’s common law right of access to judicial proceedings. Plaintiff alleges unremarkable employment claims stemming from one week of employment with Defendant in which she was rebuked and subsequently terminated for failing to comply with her supervisor’s directives. Plaintiff cannot possibly meet her high burden, and therefore any request by Plaintiff to proceed under a fictitious name should be denied. II. FACTUAL BACKGROUND Plaintiff was employed at Defendant as an Internet of Things (“IoT”) Asset Management Sales Specialist for one week in February 2016 before she was terminated. See Shaffer Declaration, ¶ 2, Exhibit 1, Complaint ¶ 10. Following her termination, on Case 2:16-cv-04914-JPR Document 7 Filed 07/12/16 Page 3 of 12 Page ID #:147 Case No.: 2:16-CV-4914.JPR 2 DEFENDANT’S NTC OF MTN AND MTN TO DISMISS AND/OR STRIKE PURSUANT TO RULES 12(B)(1) AND 12(F) 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 May 26, 2016, Plaintiff filed a Complaint against Defendant, a New York Corporation, and Brian Chu, an individual, in Los Angeles Superior Court. On July 5, 2016, Defendant removed the case to this Court1. In the Complaint, Plaintiff alleged the following causes of action: (1) fraudulent inducement; (2) negligent misrepresentation; (3) intentional infliction of emotional distress; (4) discrimination in violation of Gov’t Code §§ 12940 et seq.; (5) retaliation in violation of Gov’t Code § 12940(h); (6) failure to accommodate disability and failure to engage in an interactive process in violation of §§ 12940 et seq.; (7) failure to prevent discrimination, harassment, and retaliation in violation of Gov’t Code § 12940(k); (8) wrongful termination in violation of public policy; (9) declaratory judgment; (10) waiting time penalties; (11) intentional interference with prospective economic advantage; (12) promissory estoppel; and (13) defamation. In support of her claims, Plaintiff alleges that Defendant offered her employment, which she accepted, and her orientation scheduled. Complaint ¶¶ 11-15. Plaintiff’s first day with Defendant was February 22, 2016, at one of Defendant’s events in Las Vegas, Nevada. Complaint ¶ 16. Plaintiff was instructed to attend orientation prior to performing any work on Defendant’s behalf, and claims Chu, her immediate supervisor, disregarded this instruction. Id. Plaintiff further alleges that Chu provided her misinformation regarding an event he requested she attend, resulting in her inability to find the event. Complaint ¶¶ 21-22. When she finally found Chu, he “yelled at her in front of a crowd of onlookers, berated her for being late, then pulled [her] aside and yelled at her some more.” Complaint ¶¶ 11-15. Chu then allegedly instructed her to attend a session of the trade show at the MGM Grand. Complaint ¶ 27. Plaintiff, who had recently had abdominal surgery, joined a long line for the shuttle to the MGM; however, the long line exasperated the pain from her surgery and Plaintiff decided against going to the MGM Grand. Complaint ¶¶ 28-29. After Plaintiff attended a session at the Mandalay Bay (the hotel at which she was staying), and after lunch, returned to her hotel room to take medicine. Complaint ¶¶ 31-32. Plaintiff was met by Chu, via telephone, 1 Chu has not yet been served with the Complaint. Case 2:16-cv-04914-JPR Document 7 Filed 07/12/16 Page 4 of 12 Page ID #:148 Case No.: 2:16-CV-4914.JPR 3 DEFENDANT’S NTC OF MTN AND MTN TO DISMISS AND/OR STRIKE PURSUANT TO RULES 12(B)(1) AND 12(F) 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 allegedly going “absolutely crazy” on her, calling her names, yelling that something was wrong with her, and threatened Plaintiff with termination. Complaint ¶¶ 28-35. Chu allegedly also indicated that he would be speaking with the executive vice presidents who hired Plaintiff, and he would inform Plaintiff whether she had a job the following day. Chu then ordered Plaintiff to remain in her hotel room. Complaint ¶¶ 36-42. Following this discussion with Chu, Plaintiff typed up a detailed complaint to the human resource recruiter, and complained about Chu’s alleged harassing conduct. Complaint ¶ 43. The next day, Plaintiff alleges that she met with Chu at a pre-designated spot, that the Executive Vice President of Sales was also present, and that she was asked to sign “employment-related” documents, and return company property. Complaint ¶¶ 46-58. Plaintiff felt uncomfortable because of having to sign these documents and meeting in the “food court.” Complaint ¶ 56. Plaintiff claims she was visibly upset, and shaking, but was reassured that her job was not in jeopardy, and she was not being terminated. Complaint ¶¶ 57-63. Plaintiff alleges that her employment was ultimately terminated the following Monday, effective on Friday, February 26, 2016. Complaint ¶¶ 70-71. Finally, following Plaintiff’s termination, Plaintiff allegedly communicated again with the Executive Vice President of Sales, and human resources, regarding a sign on bonus, alternate employment opportunities, and business expenses. Complaint ¶¶ 73-79. III. LEGAL STANDARD Federal Rule of Civil Procedure 12(b)(1) allows a party to move for dismissal of a claim for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Federal Rule of Civil Procedure 10(a) requires that “the title of the complaint must name all the parties.” Fed. R. Civ. P. 10(a). Rule 10(a) reflects the “paramount importance of open courts” such that the “default presumption is that plaintiffs will use their true names.” Doe v. Kamehameha Sch./Bernice Pauahi Bishop Estate, 596 F.3d 1036, 1046 (9th Cir. 2010), reh’g denied, 625 F.3d 1182 (9th Cir. 2010), cert. denied, 131 S. Ct. 2448 (2011). “As a general rule, Case 2:16-cv-04914-JPR Document 7 Filed 07/12/16 Page 5 of 12 Page ID #:149 Case No.: 2:16-CV-4914.JPR 4 DEFENDANT’S NTC OF MTN AND MTN TO DISMISS AND/OR STRIKE PURSUANT TO RULES 12(B)(1) AND 12(F) 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 the identity of the parties in any action, civil or criminal, should not be concealed except in an unusual case, where there is a need for the cloak of anonymity.” United States v. Stoterau, 524 F.3d 988, 1012 (9th Cir. 2008) (internal quotation marks and citations omitted). The presumption against anonymity can be overcome only “where safety is an issue or stigma is so palpable that anonymity is critical.” Kamehameha Schs., 596 F.3d at 1042. The reason for this is that “[a]ny step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat, which requires compelling justification.” Stoterau, 524 F.3d at 1012 (quoting Union Oil Co. of Cal. v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000)). “Without sufficient special circumstances justifying the need for anonymity, Courts should not deviate from the longstanding notion that ‘[t]he people have a right to know who is using their courts.’” Smith v. Corizon Healthcare, No. 1:16-cv-00461-DAD-EPG-PC, 2016 WL 3538350, at *2 (E.D. Cal. June 27, 2016) (alteration in original) (quoting Stoterau, 524 F.3d at 1013). IV. ARGUMENT A. Plaintiff’s Complaint Should be Dismissed or Stricken for Violation of Rule 10(a) Because Plaintiff Is Proceeding Under A Fictitious Name Without Prior Leave of Court Pursuant to Rule 10(a), “[t]he title of the complaint must name all the parties . . . .” Thus, “[t]he normal presumption in litigation is that parties must use their real names.” Kamehameha Schs., 596 F.3d at 1042. “The Rules provide no exception that allows parties to proceed anonymously or under fictitious names . . . .” Nat’l Commodity & Barter Ass’n v. Gibbs, 886 F.2d 1240, 1245 (10th Cir. 1989). Accordingly, “[w]hen a party wishes to file a case anonymously or under a pseudonym, it must first petition the district court for permission to do so.” W.N.J. v. Yocom, 257 F.3d 1171, 1172 (10th Cir. 2001) (dismissing plaintiffs’ appeal because plaintiffs failed to request permission from the district court before proceeding anonymously). If a Plaintiff fails to do so, the complaint should be dismissed or stricken for violating Rule 10(a). See Kamehameha Schs., 596 F.3d at 1046 (“[W]e affirm the district court’s order dismissing the case based on plaintiffs’ failure to disclose their identities.”); Nat’l Commodity & Barter Ass’n v. Case 2:16-cv-04914-JPR Document 7 Filed 07/12/16 Page 6 of 12 Page ID #:150 Case No.: 2:16-CV-4914.JPR 5 DEFENDANT’S NTC OF MTN AND MTN TO DISMISS AND/OR STRIKE PURSUANT TO RULES 12(B)(1) AND 12(F) 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 Gibbs, 886 F.2d 1240, 1245 (10th Cir. 1989) (“[T]he federal courts lack jurisdiction over the unnamed parties, as a case has not been commenced with respect to them. We therefore dismiss the complaint as to the unnamed [parties] . . . . ”) (internal citations omitted). Here, Plaintiff filed her Complaint under the fictitious name, Jane Doe, without prior leave of Court. Plaintiff has deprived the Court of the opportunity to assess the rationality of Plaintiff’s decision to conceal her identity. Therefore, Plaintiff’s Complaint should be dismissed or stricken because she did not receive prior leave of Court for filing her Complaint under a fictitious name. B. Even if Plaintiff Was Not Required to Obtain Leave of Court Before Filing Anonymously, Plaintiff Cannot Proceed Anonymously Because Plaintiff’s Need For Anonymity Does Not Outweigh the Prejudice to Defendant and the Public’s Right of Access to Judicial Proceedings There is no need for Plaintiff to proceed anonymously, and thus any request to do so, should be denied. The Ninth Circuit recognizes three situations in which parties have been allowed to proceed anonymously: (1) when identification creates a risk of retaliatory physical or mental harm; (2) when anonymity is necessary to preserve the privacy in a matter of a sensitive and highly personal nature; and (3) when the anonymous party is compelled to admit his or her intention to engage in illegal conduct, thereby risking prosecution. Doe v. John F. Kennedy, No. C-13-01137, 2013 WL 456061, *3 (N.D. Cal. Aug. 27, 2013) (citing Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000)). 1. There is no threat of retaliatory physical or mental harm Here, Plaintiff is no longer employed by Defendant, Complaint ¶ 71, and Plaintiff does not assert any threat of violence, so identifying her in court proceedings could not possibly create a legitimate risk of retaliatory physical or mental harm. Case 2:16-cv-04914-JPR Document 7 Filed 07/12/16 Page 7 of 12 Page ID #:151 Case No.: 2:16-CV-4914.JPR 6 DEFENDANT’S NTC OF MTN AND MTN TO DISMISS AND/OR STRIKE PURSUANT TO RULES 12(B)(1) AND 12(F) 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 2. Plaintiff is not compelled to admit his or her intention to engage in illegal conduct There is also no reason to believe that Plaintiff has any intention to engage in illegal conduct, or that her identification in court proceedings might compel Plaintiff to admit to any intention to engage in illegal conduct, thereby risking prosecution. 3. Anonymity is not necessary in this case because Plaintiff’s Complaint does not raise allegations of a matter of sensitive and/or highly personal nature. The “Ninth Circuit applies a balancing test to determine whether a party may preserve [her] anonymity in judicial proceedings.” Doe v. UNUM Life Ins. Co. of Am., No. 15-cv-05622-WHO, 2016 WL 874777, at *1 (N.D. Cal. February 22, 2016) (citing Advanced Textile Corp., 214 F.3d at 1068). “Because there is a presumption that parties’ identities are public information, anonymity is only proper under ‘special circumstances when the party’s need for anonymity outweighs prejudice to the opposing party and the public’s interest in knowing the party’s identity.’” Id. (quoting Advanced Textile Corp., 214 F.3d at 1068)(Emphasis added). It is unequivocally the prerogative of the court-not Plaintiff- to determine whether Plaintiff has met her high burden. See Qualls v. Rumsfeld, 228 F.R.D. 8, 12 (D.D.C. 2005) (“Pseudonymous litigation is for the unusual or critical case, and it is the litigant seeking to proceed under pseudonym that bears the burden to demonstrate a legitimate basis for proceeding in that manner.”). a. There is no need for anonymity Plaintiff has provided no indication what privacy interests she might have that would serve as sufficiently compelling justification for her to be able to proceed under a fictitious name. Indeed, it is hard to imagine what privacy interests Plaintiff could provide-based on a single week of employment with Defendant (of which nothing extraordinary occurred, even assuming Plaintiff’s allegations are true) -that are of a sufficiently sensitive and personal nature to make anonymity necessary to preserve her privacy. See Advanced Textile Corp., 214 F.3d at 1068 (emphasis added). After all, Plaintiff’s burden for anonymity is high. For example, in Doe v. Ayers, 789 F.3d 944, Case 2:16-cv-04914-JPR Document 7 Filed 07/12/16 Page 8 of 12 Page ID #:152 Case No.: 2:16-CV-4914.JPR 7 DEFENDANT’S NTC OF MTN AND MTN TO DISMISS AND/OR STRIKE PURSUANT TO RULES 12(B)(1) AND 12(F) 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 28 946 (9th Cir. 2015), the Ninth Circuit permitted a plaintiff to use a pseudonym where he had already been, and would likely be further subjected to, violence and sexual assault in prison if his case did not proceed anonymously. The Ninth Circuit referred to its decision as the “rare exception” for an “exceptional case.” Id. In Doe v. Rostker, 89 F.R.D. 158, 161 (N.D. Cal. 1981), the court identified the limited types of cases in which plaintiffs have been allowed to proceed anonymously: The most common instances are cases involving abortion, mental illness, personal safety, homosexuality, transsexuality, and illegitimate or abandoned children in welfare cases. The common thread running through these cases is the presence of some social stigma or the threat of physical harm to the plaintiff attaching to disclosure of their identities to the public record. In light of the social evolution of our society since Rostker was decided in 1981, it is doubtful that even these designated instances carry the same stigma. For example, in UNUM Life Ins. Co. of Am., No. 15-cv-05622-WHO, 2016 WL 874777, at *1, the district court applied the Advanced Textile test and rejected the plaintiff’s argument that he should be able to proceed pseudonymously because he was a well-known lawyer with a severe mental illness that would be aggravated if his peers discovered his condition. The district court also rejected the plaintiff’s argument that he should be allowed to proceed anonymously because the litigation would reveal highly-sensitive information about his employment and personal life. Id. As the district court noted, “the potential embarrassment or increased anxiety brought on by litigation does not justify anonymity.” Id. at *10. Plaintiff does not fit any of the circumstances under which courts permit a plaintiff to proceed using a fictitious name. In sum, Plaintiff is alleging that the terms of her employment were misrepresented to her, that her supervisor yelled at her, and her job was threatened, all occurring within a one week period of time, and frankly over the course of several days wherein Plaintiff was in Chu’s presence. Plaintiff simply does not have the grounds to proceed under a fictitious name, and the insufficiency of Plaintiff’s desire for anonymity is only compounded by the strong countervailing interests of inevitable Case 2:16-cv-04914-JPR Document 7 Filed 07/12/16 Page 9 of 12 Page ID #:153 Case No.: 2:16-CV-4914.JPR 8 DEFENDANT’S NTC OF MTN AND MTN TO DISMISS AND/OR STRIKE PURSUANT TO RULES 12(B)(1) AND 12(F) 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 prejudice to Defendant and the public’s common law right to access of judicial proceedings. b. Defendant will be Prejudiced Defendant would suffer prejudice if Plaintiff were permitted to proceed anonymously. In the event that Defendant needs to subpoena documents or interview witnesses, it is doubtful that information could be obtained by referring to “Jane Doe.” See John F Kennedy Univ., No. C-13-01137 DMR, 2013 WL 456061, at *4 (“It is unclear how Defendant would interview potential witnesses to gather facts or to assess Plaintiff’s credibility if they could not disclose the name. Third-part discovery would be similarly awkward and difficult.”). This is true even in cases such as this where the defendant knows the identity of the anonymous plaintiff. See Doe v. Ind. Black Expo., Inc., 923 F. Supp. 137, 141 (S.D. Ind. 1996) (“The defendants know the plaintiff’s identity, but the anonymity plaintiff seeks would significantly hamper their ability to defend themselves from adverse publicity and other collateral, but often inevitable, effects of civil litigation.”). Plaintiff’s use of a fictitious name also prejudices Defendant in the community: [T]he mere filing of a civil action against other private parties may cause damage to their good names and reputation and may also result in economic harm . . . . Basic fairness dictates that those among the defendants’ accusers who wish to participate in this suit as individual party plaintiffs must do so under their real names. Doe v. Goldman, 169 F.R.D. 138, 140 (D. Nev. 1996) (quoting Southern Methodist Univ. Ass'n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 713 (5th Cir. 1979), aff'd, 599 F.2d 707 (5th Cir. 1979)). Civil lawsuits can lead to negative publicity and force defendants to disclose preferably private information. Indiana Black Expo, 923 F. Supp. at 14. “But only rarely can a defendant in a lawsuit remain anonymous, and certainly not where the plaintiff has chosen to file publicly a complaint naming the defendants but using a false name for himself.” Id. (internal citation omitted). Case 2:16-cv-04914-JPR Document 7 Filed 07/12/16 Page 10 of 12 Page ID #:154 Case No.: 2:16-CV-4914.JPR 9 DEFENDANT’S NTC OF MTN AND MTN TO DISMISS AND/OR STRIKE PURSUANT TO RULES 12(B)(1) AND 12(F) 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 Just as Defendant has been forced to put its reputation at stake by defending Plaintiff’s lawsuit, Plaintiff should be forced to put her own reputation at stake in levying a litany of serious allegations against Defendant. c. Public interest dictates that Plaintiff should not be permitted to remain anonymous “[T]he district court must decide whether the public's interest in the case would be best served by requiring that the litigants reveal their identities.” Advanced Textile Corp., 214 F.3d at 1068. Notably, “Plaintiffs’ use of fictitious names runs afoul of the public’s common law right of access to judicial proceedings and Rule 10(a)’s command that the title of every complaint ‘include the name of all parties.’” Id. (citing Nixon v. Warner Commc’ns., Inc., 435 U.S. 589, 598-99 (1978); EEOC v. Erection Co., Inc., 900 F.2d 168, 169 (9th Cir. 1990)); Fed. R. Civ. P. 10(a). Although “some litigants . . . prefer anonymity because of the unwanted attention litigation can bring . . . the strong presumption is that the public has a right to know who is seeking what in court and whether he or she is entitled to the relief sought.” UNUM Life Ins. Co. of Am., No. 15-cv- 05622-WHO, 2016 WL 874777, at *1. In Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492-93 (1975), the United States Supreme Court commented on the importance of an open judiciary: What transpires in the courtroom is public property . . . . There is no special prerequisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it. Allowing Plaintiff to proceed under a fictitious name in this case would invite all plaintiffs with standard employment claims to initiate lawsuits anonymously. The result would be unnecessarily complicated litigation which circumvents the public’s right to an open judiciary. The Complaint provides absolutely no justification for why Plaintiff should be able to file her lawsuit under a fictitious name without prior leave of Court or why this Court should allow her to proceed under a fictitious name now. Absent any evidence or Case 2:16-cv-04914-JPR Document 7 Filed 07/12/16 Page 11 of 12 Page ID #:155 Case No.: 2:16-CV-4914.JPR 10 DEFENDANT’S NTC OF MTN AND MTN TO DISMISS AND/OR STRIKE PURSUANT TO RULES 12(B)(1) AND 12(F) 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 allegations supporting the factors identified by the Ninth Circuit in Advanced Textile, Plaintiff should not be permitted to proceed anonymously under a fictitious name. Accordingly, should Plaintiff request leave of Court to file an amended complaint under an anonymous or fictitious name, the Court should deny the request. Unless and until the Court grants Plaintiff leave to proceed anonymously or under the fictitious name “Jane Doe,” she may not do so. V. CONCLUSION For the reasons set forth above, Defendant respectfully requests that the Court dismiss or strike Plaintiff’s Complaint for failure to comply with Rule 10(a), and require Plaintiff to file a First Amended Complaint using her real name. Dated: July 12, 2016 JACKSON LEWIS P.C. By: /s/ Nicole M. Shaffer Samantha N. Hoffman Nicole M. Shaffer Attorneys for Defendant INTERNATIONAL BUSINESS MACHINES CORPORATION 4820-3081-8868, v. 2 Case 2:16-cv-04914-JPR Document 7 Filed 07/12/16 Page 12 of 12 Page ID #:156 Case No.: 2:16-CV-4914 JPR 1 DECLARATION OF NICOLE SHAFFER ISO MTN TO DISMISS AND/OR STRIKE 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 Samantha N. Hoffman (SBN 212135) HoffmanS@jacksonlewis.com Nicole Shaffer (SBN 244366) Nicole.Shaffer@jacksonlewis.com Jackson Lewis P.C. 5000 Birch Street, Suite 5000 Newport Beach, CA 92660 Phone 949.885.1360 Fax 949.885.1380 Attorneys for Defendant INTERNATIONAL BUSINESS MACHINES CORPORATION UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION JANE DOE, an individual, Plaintiff, vs. INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York Corporation; BRIAN CHU, an individual and DOES 1-100, inclusive, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:16-cv-4914 JPR DECLARATION OF NICOLE SHAFFER IN SUPPORT OF DEFENDANT INTERNATIONAL BUSINESS MACHINES CORPORATION’S MOTION TO DISMISS AND/OR STRIKE PURSUANT TO FEDERAL RULES 12(b)(1) AND 12(f) [Filed concurrently with Notice of Motion and Motion to Dismiss and/or Strike; [Proposed] Order; Proof of Service] Date: August 11, 2016 Time: 10:00 a.m. Place: 312 N. Spring Street, Los Angeles Judge: Hon. Jean P. Rosenbluth Case 2:16-cv-04914-JPR Document 7-1 Filed 07/12/16 Page 1 of 3 Page ID #:157 Case No.: 2:16-CV-4914 JPR 2 DECLARATION OF NICOLE SHAFFER ISO MTN TO DISMISS AND/OR STRIKE 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 DECLARATION OF NICOLE SHAFFER I, NICOLE SHAFFER, declare as follows: 1. I am an attorney admitted to practice before all courts of the State of California and before this Court. I am a Shareholder with the law firm Jackson Lewis P.C., counsel of record for Defendant INTERNATIONAL BUSINESS MACHINES CORPORATION (“Defendant” or “IBM”). I make the following declaration based on personal knowledge, unless otherwise stated. If called as a witness, I could and would competently testify to the facts contained herein. I submit this declaration in support of Defendant’s Notice of Motion and Motion to Dismiss and/or Strike. 2. On or about May 26, 2016, Plaintiff filed her original complaint in Orange County Superior Court, case number BC 621761, naming IBM and Brian Chu as defendants. Attached hereto as Exhibit 1 is a true and correct copy of the Complaint. 3. On or about June 28, 2016, Samantha Hoffman, Esq., from my office, contacted Lisa Maki, Esq., Plaintiff’s Counsel, to discuss, inter alia, Plaintiff’s use of the pseudonym, Jane Doe, and inquire as to whether Plaintiff had any legal authority to support that use. 4. On July 5, 2016, Ms. Hoffman emailed Ms. Maki, and copied myself, to follow up on Defendant’s request for authorities supporting Plaintiff’s use of a pseudonym, and inform Plaintiff of Defendant’s intent to file a Motion with the court to compel Plaintiff to use her real name. 5. On July 5, 2016, Defendant filed its Notice of Removal based on diversity jurisdiction. See Docket # 1. 6. On July 6, 2016, Jennifer Ostertag, an attorney from Ms. Maki’s office, responded to Ms. Hoffman’s July 5, 2016, email, and provided state authorities that Plaintiff believed supported her use of filing under a pseudonym. 7. On July 11, 2016, I replied to Ms. Ostertag’s July 6, 2016, email and provided state authorities in opposition to Plaintiff’s use of a pseudonym. Moreover, in Case 2:16-cv-04914-JPR Document 7-1 Filed 07/12/16 Page 2 of 3 Page ID #:158 Case No.: 2:16-CV-4914 JPR 3 DECLARATION OF NICOLE SHAFFER ISO MTN TO DISMISS AND/OR STRIKE 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 light of the removal to federal court on July 5, 2016, and given that federal law now applied to the issue, I also provided federal authorities in opposition to Plaintiff’s use of a pseudonym. I further requested that Plaintiff inform Defendant how Plaintiff intended to proceed in light of the federal precedent that Defendant provided. I further informed Ms. Ostertag of Defendant’s intent to file a Motion to Dismiss and/or Strike if Plaintiff and Defendant (collectively, the “Parties”) could not come to a resolution by Defendant’s July 12, 2016, deadline to file a responsive pleading, including any motion to dismiss. Attached hereto as Exhibit 2 is a true and correct copy of the email chain between my office and Ms. Maki’s office on this issue and referred to in paragraphs 4-7. 8. Later that evening, Ms. Ostertag responded to my email stating that she needed additional time to consider the issue. However, given the deadline by which Defendant has to respond, it will be filing its Motion to Dismiss and/or Strike by July 12, 2016, and will take it off calendar should Plaintiff agree to amend her complaint. I declare under penalty of perjury under the laws of the State of California and the United States of America that the foregoing is true and correct. Executed this 12th day of July, 2016, at Newport Beach, California. _____/s/ Nicole M. Shaffer__________ Nicole M. Shaffer 4839-9370-1172, v. 1 Case 2:16-cv-04914-JPR Document 7-1 Filed 07/12/16 Page 3 of 3 Page ID #:159 V. INTERNATIONAL BUS] CORPORATION, a New BRIAN CHU, an individua inclusive, SS MACHThES rk corporation; and DOES 1-100, Defendants. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 I 27 28 LwOflBOvIZ&I.MMI Afl1ATL47 LMj.I. CM4 2li)74311 IIAttomeys for Plaintiff JANE DOE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR 1LEE CO!JNTY OF LOS ANGELES, CENTRAL JANEDOE,anindividual, CASENO. BC6 21 761 Plamtiff COMPLAINT FOR DAMAGES FOR: I. FRAUDULENT INDUCEMENT; NEGLIGENT MISREPRESENTATION; INTENTIONAL INELICTION OF EMOTIONAL DISTRESS; DISCRIMINATION IN VIOLATION OF GOV'T CODE §W940 ET SEQ.; RETALIATION IN VIOLATION OF GOV'T CODE §12940(h); FAILURE TO ACCOMMODATE DISABILITY AND FAILURE TO ENGAGE IN AN INTERACTIVE PROCESS IN VIOLATION OF §12940 ET SEQ.; FAILURE TO PREVENT DISCRIMINATION, HARASSMENT, AND RETALIATION IN VIOLATION OF GOV'T CODE §12940(k); WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY; FOR DECLARATORY JUDGMENT; WAITING TIME PENALTIES (CAL. JAW OFFICES OF 1is4 L. ATTORNEYS AT LAW 523 We9t 6th Street, Suite - 1os.Ange1ee,California.90: TELEPHONE (213) 745-9511 FACSIMILE (213) 745-9611 / Lisa L. Maid, State Bar No. 1 Jennifer Ostertag, State Bar No 204422 - - - - - CONEORM1WCUI if OF OR[G!NAL FILED Los Ai, it i,nPrtrsrfout1 HAY 2 6 2016 Shefli R. Carter, Executive Officer/Clerk By: Moses Soto, Deputy bñÜáÄáí=N=m~ÖÉ=Q== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 1 of 34 Page ID #:160 COMES NOW PLAINTIFF, JANE DOE, and for causes of action against the Defendants and each of them, alleges as follows: This Court is the proper court, and this action is properly filed in Los Angeles County, because Defendants' obligations and liability arise therein, because Defendants maintain offices and transact business within Los Angeles County, and because the work that is the subject of this action was to be performed by Plaintiff in Los Angeles County. THE PARTIES Plaintiff, JANE DOE, is and at all times relevant hereto was a resident over forty (40) years of age of the State of California, County of Los Angeles. Defendant INTERNATIONAL BUSINESS MACHINES CORPORATION (hereinafter referred to as "IBM") is a New York corporation with its principal place of business at 1 New Orchard Road, Armonk, New York, 10504. IBM transacts business and maintains offices in Agoura Hills in the County of Los Angeles, State of California, and elsewhere in the State of California. Plaintiff is informed and believes, and based thereupon alleges, that at all times relevant hereto, IBM was Plaintiff's employer within the meaning of Government Code § § 12926, subdivision (d), 12940, subdivisions (a),(h),(1), (h)(3)(A), and (i), and 12950, regularly employs five (5) or more persons, and is therefore subject to the jurisdiction of this court. 28 LAW OPFICSA OP LISA L 50.6K, ATr09NE,Ar LAW 523W. 6th Smet, SUIW 450 Jo. Agdoo, CA 90014 Tob (213)745-9513 P.. (213)745-9013 -2- COMPLAINT FOR DAMAGES 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 LABOR CODE §201-203); INTENTIONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE; PROMISSORY ESTOPPEL; AND DEFAMATION [DEMAND FOR JURY TRIAL] bñÜáÄáí=N=m~ÖÉ=R== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 2 of 34 Page ID #:161 5. Plaintiff is informed and believes, and based thereupon alleges, that at all times 2 relevant hereto, Defendant BRIAN CHU is and was IBM's Internet of Things (JoT) Facilities 3 Manager and Plaintiff's hiring manager and supervisor. 4 6. The true names and capacities, whether individual, corporate, associate, or otherwise, 5 of the Defendants named herein as DOES 1-100, inclusive, are unknown to Plaintiff at this time 6 and therefore said Defendants are sued by such fictitious names. Plaintiff will seek leave to amend 7 this Complaint to insert the true names and capacities of said Defendants when the same become 8 known to Plaintiff, Plaintiff is informed and believes, and based thereupon alleges, that each of 9 the fictitiously named Defendants is responsible for the wrongful acts alleged herein, and is 10 therefore liable to Plaintiff as alleged hereinafter. 11 7. Plaintiff is informed and believes, and based thereupon alleges, that at all times 12 relevant hereto, Defendants, and each of them, were the agents, employees, managing agents, 13 supervisors, coconspirators, parent corporation, joint employers, alter ego, and/or joint ventures of 14 the other Defendants, and each of them, and in doing the things alleged herein, were acting at least 15 in part within the course and scope of said agency, employment, conspiracy, joint employer, alter 16 ego status, and/or joint venture and with the permission and consent of each of the other 17 Defendants. 18 8. Whenever and wherever reference is made in this Complaint to any act or failure to act 19 by a Defendant or co-Defendant, such allegations and references shall also be deemed to mean the 20 acts and/or failures to act by each Defendant acting individually, jointly and severally. 21 9. Plaintiff has filed complaints of discrimination, harassment, retaliation, failure to 22 accommodate disability or engage in an interactive process, failure to prevent discrimination, 23 harassment, or retaliation, and wrongful termination under Government Code § § 12940, et seq., the 24 California Fair Employment and Housing Act ("FEHA") with the California Department of Fair 25 Employment and Housing ("DFEH"), and has satisfied her administrative prerequisites with 26 respect to these and all related fflings. 27 28 JAW OFFICES OP LISA L 30401 ArroBNHrskri.Aw 513W. 6*h Suç &ñI0 450 CA 99010 Tt (213)743-9311 P (213) 745-9611 -3- COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=S== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 3 of 34 Page ID #:162 C C FACTUAL ALLEGATIONS 2 10. IBM employed Plaintiff as an JoT Asset Management Sales Specialist for a week, from 3 February 22 to 26, 2016, when Plaintiff was suddenly wrongfully terminated. 4 Background 5 11. In the fall of 2015, Plaintiff was interviewed by two IBM executives, Vice-President 6 for Sales Mark Mullaney and Travis Phillips. The executives told Plaintiff they wanted to hire her 7 without informing the hiring manager, BRIAN CHU, ahead of time. Instead, they explained, 8 CHU would be informed "at the back end of things." According to the executives, CHU wanted 9 to relocate to Asia, but had not done so yet. Plaintiff interviewed with CHU around the first week 10 in October 2015. Subsequently, CHU told Plaintiff verbally and by email that IBM intended to 11 hire her. An offer was being prepared for Plaintiff and would be sent to her when it was approved. 12 12. Before Plaintiff's offer could be approved, however, IBM went through a process of re- 13 organization and all offers were put on hold until the New Year. 14 13. Plaintiff received IBM's letter offering employment as an JoT Asset Management Sales 15 Specialist in Agoura Hills, California, on January 6, 2016. Plaintiff's annual total cash 16 compensation was estimated at $237,805.00 with a base salary of$ 130,000.00 and sales incentives 17 of$l07,805.00. Plaintiff's position was classified as exempt 18 14. In addition to her salary and sales incentives, the offer letter indicated that Plaintiff 19 would be eligible for a competitive benefits program, including a portfolio of health care benefits; 20 income protection in case of serious injury, illness, or death; life insurance and disability benefits; 21 vacation, holiday, and personal leave pay; and a retirement program designed to help build future 22 financial security. The offer letter promised that Plaintiff would become eligible for such benefits 23 on the first day of her employment. Plaintiff was also to be paid a $20,000 hiring bonus. 24 15. The Human Resources (HR) recruiting team told Plaintiff that she was required to 25 attend a three-day orientation at the beginning of her employment. Plaintiff accepted the offer and 26 initially opted to go to the February 8, 2016 orientation in Austin, Texas. 27 16. Plaintiff notified CHU, her hiring manager, that the timing of her start on February 8th 28 seemed perfect because she had had successful abdominal surgery on December 23, 2015. LAW OFFIcES OF LISA L MAX! ATTORNEYS AX LAW 323W. 6th SRNo,, 0dto 430 Lo.Att4RIO., CA 96014 Tob (213) 743-9511 Po (213) 743.9611 -4- COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=T== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 4 of 34 Page ID #:163 1 Plaintiff s ifights and hotel were booked and Plaintiff was all ready to go. Unfortunately, at the 2 I I last minute, Plaintiff contracted influenza which caused her to cough so violently she tore muscles 3 II in her abdomen related to her surgery. Plaintiff s temperature was 103 degrees and her doctor 4 advised her not to fly. Reluctantly, Plaintiff notified CHU that, based on her doctor's advice, 5 because of her illness and its effect on her recovery from her abdominal surgery, she was unable to 6 I I attend the orientation session in Austin after all. Plaintiff told this to CHU over the phone and he 7 I I could hear Plaintiff in pain, coughing, and barely able to speak. He said to Plaintiff, "Wow, you 8 sound horrible." CHU was fully aware of Plaintiff s condition. CHU told Plaintiff it was okay and 9 that she did not have to go to the orientation. Instead, CHU advised Plaintiff that her official start 10 date would be on February 22, 2016, at the IBM trade show in Las Vegas, Nevada. Plaintiff asked 11 CHU if she should attend this show since she was still not feeling 100% better. She also reminded 12 CHU that HR told her that she had to attend a 3 day orientation prior to beginning "any" work. 13 Plaintiff was surprised CHU had her attend this conference when this was against the IBM HR 14 rules for onboarding a new hire. 15 17. CHU was on vacation the week before Plaintiff's start date, but arrangements were 16 made for Plaintiff's hotel accommodations and ifights to and from Las Vegas. 17 18. According to the IBM on-boarding process, both Plaintiff and CHU were instructed to 18 report to the IBM Las Vegas office on February 22, 2016, at 9:00 a.m. to complete paperwork so 19 Plaintiff flew to Las Vegas. 20 19. Plaintiff was instructed by CHU to arrive at the IBM Conference on Sunday February 21 21, 2016 by 3:00pm so she could attend an event he wanted her to attend. Plaintiff was concerned 22 because she was not an official IBM employee and HR told her to report to the IBM office in Las 23 Vegas on her first day of employment on February 22uid but CHU insisted she arrive Sunday 24 afternoon. 25 20. CHU met her in the lobby of her hotel, the Mandalay Bay, at approximately 3:00 p.nL 26 I and provided Plaintiff with her IBM laptop. CHU told Plaintiff that he had not received any 27 I paperwork for her to sign, or her IBM Corporate Credit card so she could pay for her trip expenses 28 only the laptop, and that Plaintiff needed to go to her room, follow up with HR, and get the laptop SAW OFFIc52 OLIsA LMA52 A,TOONHVS AT LAW 523W. 5-h S9lw 450 Lo,ATglT., CA 96014 Th (213)745-9511 F.w (513) 745-9611 1 COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=U== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 5 of 34 Page ID #:164 1 set up. Before he left, CHU said he would call Plaintiff when he was on his way to the event he 2 wanted Plaintiff to attend. 3 21. Accordingly, Plaintiff went to her room to set up the laptop and await CHU's call. At 4 4:30 p.m., CHU texted Plaintiff (not called) as he indicated he would to inform her that he was 5 heading to the event and instructed Plaintiff to go to "Room A & D" where he would introduce her 6 to colleagues and Plaintiff responded she would be there in 10 minutes. 7 22. However, as Plaintiff soon discovered, "Room A & D" was incorrect information. 8 Conference rooms at the hotel had specific names, like Mandalay Bay, Oceanside, and Seaside, for 9 example. 10 23. Plaintiff repeatedly tried to call and text CIII], but there was no response. It was a 11 private event, so it was not listed on the IBM schedule. Plaintiff asked a number of people, 12 including hotel employees, where the event was being held, but no one knew. Plaintiff also tried 13 the IBM information booth, where she asked an IBM employee to call CHU. The IBM 14 information booth called CHU, but he never responded. Consequently, Plaintiff had to continue 15 looking for the correct room to meet CHU. Plaintiff was directed to the Ocean Room, where a 16 huge summit was taking place. Plaintiff sat down to listen for a while, but in due course, Plaintiff 17 figured out it was not the venue she was looking for. Plaintiff got up and walked around looking 18 for CHU, but did not find him. A group of women offered to help Plaintiff find the correct room. 19 Together, they walked to nearly every room at the hotel conference center until they finally found 20 the right room where the event was being held. Plaintiff had become extremely tired due to her 21 recent surgery and torn muscles due to coughing from influenza and walking around the hotel 22 trying to find the correct room. 23 24. It had been over an hour since Plaintiff had notified CHU that she would meet him in 24 10 minutes. When Plaintiff finally found him, CHU was so angry at Plaintiff he yelled at her in 25 front of a crowd of onlookers, berated her for being late, then pulled Plaintiff aside and yelled at 26 her some more. The yelling took place in a public area that had been set up for the employees as a 27 lounge area. 28 LAW Oms OF LISA L MAKI A7TOINHWAT LAW 52300.6th S,&th 450 Lo. Aogelo., CA 90014 Tth 213) 745-9511 Foo (213) 745.9611 -6- COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=V== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 6 of 34 Page ID #:165 1 25. Then CHU told Plaintiff that "things have changed" and Plaintiff might not even be 2 selling the product she was hired for. Still angry, CHU introduced Plaintiff to a few people 3 perfunctorily, and then told her he was going to another event and Plaintiff could not attend. 4 Before he left, CHU told Plaintiff to go to her room and write down the sessions she wanted to 5 attend for the week. Plaintiff complied, but she was shocked by what had just occurred. 6 26. Despite CHTJ's fault in the matter, CHU blamed Plaintiff for his own incompetence 7 while repeatedly admonishing Plaintiff in public for it. CHU threatened to modiI' the terms of 8 IBM's offer of employment to Plaintiff. 9 27. Plaintiff had received email messages from KR reminding her to report to the IBM Las 10 Vegas office at 9:00 a.m. on February 22nd. Plaintiff reminded CHU about it. In response, CHU 11 JJ said he knew nothing about it and failed and refused to look into it. CUll told Plaintiff they were 12 not going to the IBM office. Instead, CHU instructed Plaintiff to go a session of the trade show at 13 the MGM Grand. CHU said he would meet Plaintiff there and instructed her to take shuttle 14 transportation. He did not go with her. 15 28. Plaintiff went outside and got in the long line for the shuttle. The line was moving 16 very slowly. Plaintiff was still recovering from her abdominal operation, and after standing in the 17 line for a while, Plaintiff s abdomen began to hurt. After 30 to 45 minutes of waiting for the 18 shuttle, Plaintiff was unable to stand it any longer because her side was hurting from the torn 19 muscles from surgery and coughing so much from the flu. After one session, Plaintiff was 20 supposed to return to the Mandalay Bay anyway. It would have made no sense for Plaintiff to 21 make her way all the way over to the MGM Grand, only to have to turn around when she got 22 there. 23 29. Plaintiff decided to stay at the Mandalay Bay. She tried to call and text CHU to tell 24 him she was not going to the MGM Grand after all and would meet him back at the Mandalay Bay 25 when he returned and she even called from the Mandalay Bay hQtel phone but never received a 26 response from Chu. 27 30. Subsequently, CHU claimed he texted Plaintiff, but she never received his texts. 28 31. In any event, Plaintiff went back inside the Mandalay Bay to attend a session there. lAW OFPIC50 OF LISA L.MMU FOBNBYSAXJ..&w 523W. 6*h &dw 450 So. AooIo., CA%014 ToA (213)743-9513 Pr (213) 745.9611 -7- COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=NM== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 7 of 34 Page ID #:166 0 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 LAW OFVICFS OF LISA LMASI ATF0SNEYSATIAW 513W. 6th St. SWm 450 L. Agth., CA90014 TA (213) 745.9511 P (213) 745-96U After lunch, around 1:00p.m., Plaintiff returned to her room for a few minutes and took medicine for her abdomen, and put pads in her shoes for comfort. Plaintiff was only in her room for a short period when there was a loud banging at the door. It was hOtel security passing along a message that her manager/husband was trying to reach her. When Plaintiff used the hotel phone to call CHU, he went absolutely crazy. CHU called Plaintiff names, yelled that something was wrong with her, that she had some sort of mental issue, that something was not right, that she was not at the MGM Grand, and that Plaintiff should give him a good reason why he should not fire her right on the spot. In the end, CHU told Plaintiff that he had to talk to the Vice-Presidents about her and would inform her if she still had a job the next day. CHU indicated that he was going to talk to the executive vice-presidents who hired Plaintiff behind his back because he was trying to move to Asia. Plaintiff became very upset and asked that they go to the IBM office to work things out, as they were instructed to do in the first place. CHU admitted that he did not want to get the IBM office involved because of his own I miscommunication. Outrageously, CHU then ordered Plaintiff to stay in her room for the rest of the day and night. CHU told Plaintiff she was not allowed to leave her room or attend any trade sessions. Plaintiff was completely shocked and offended and he made her feel like a criminal. Before he hung up the phone, CHU threatened that Plaintiff had better come up with a good reason why CHU should not fire her and that she should have it to him first thing in the morning. That night, Plaintiff typed out a detailed complaint about CHU's unprofessional and harassing conduct and sent it by email to HR recruiter Cindy Donovan. Among other things, Plaintiff complained that CHU was abusive and had told her that her job role had changed before it even started. 0 COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=NN== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 8 of 34 Page ID #:167 1 44. Donovan never responded to Plaintiff's complaint on the merits. Plaintiff actually sent 2 Donovan several emails and Donovan never responded to any of them. 3 45. If anyone from IBM followed up on Plaintiff's complaint, no one ever told Plaintiff 4 about it. 5 Tuesday, February 23, 2016 6 46. The next day, Plaintiff arrived 15 minutes early at the meeting location which CHU 7 had pre-designated. 8 47. CHU arrived with Mark Mullaney, the Executive Vice-President for Sales with whom 9 Plaintiff had interviewed six months earlier. 10 48. Mullaney explained that they were going to handle the issues in four phases, as set 11 forth below. 12 49. Phase One involved Plaintiff's immediate return of the laptop computer CHU had 13 given her on Sunday, while Mullaney and CHU waited. 14 50. Feeling like a criminal, Plaintiff returned to her room, collected the laptop, returned to 15 the meeting location, and handed the laptop to Mullaney. While returning to the meeting location 16 Plaintiff was called and harassed by Mullaney for taldng so long. Her room was on the 18th floor 17 at the end of wing which was a 10 min walk each way. 18 51. Mullaney told Plaintiff to go to her room and wait there until he called her about Phase 19 Two again. Plaintiff felt like a criminal being told to stay in her hotel room. 20 52. In due course, Plaintiff was instructed to meet Mullaney and CHU in the Mandalay 21 Bay Food Court at 2:30 p.m. to sign employment-related paperwork that was supposed to be 22 completed at the IBM Las Vegas office on February 22, 2016 at 9:00 am as instructed by the IBM 2 HR team. 24 53. Plaintiff met them at the appointed place and time and did everything asked of her, 25 despite feeling extremely uncomfortable, but no one had instructed Plaintiff to bring her passport 26 or social security card. 27 54. Plaintiff did not have them with her. Her passport was in the safe. Plaintiff never 28 1.6W 000ICFS OF LISA LMMO ATF0BNBYSAT lAW 523W. 6,0 SIS. SoIw 450 CA, 90014 Td, (213) 7434511 Sow (213) 745-9611 carried her social security card with her. COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=NO== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 9 of 34 Page ID #:168 1 55. Neither Mullaney nor CHU acted like they knew what they were doing. 2 56. Plaintiff told Mullaney again how uncomfortable she felt, and that she was feeling even 3 more uncomfortable signing the documents in a food court, instead of the IBM Las Vegas office. 4 57. Mullaney replied that he did not care to discuss the details because he had read the 5 complaint Plaintiff had emailed to HR. 6 58. Mullaney revealed Phase Three after Plaintiff was forced to sign employment 7 documents in the food court and he then instructed Plaintiff to leave the trade show immediately, 8 return her badge, conline herself to her room, and be prepared to be driven to the Las Vegas 9 airport within 30 minutes. 10 59. Visibly upset, shaking, Plaintiff asked why she was being treated that way. 11 60. Mullaney said the reason was that HR had become involved and Plaintiff was never 12 I supposed to be on-boarded at a conference. 13 61. Mullaney told Plaintiff she should have gone to the IBM Las Vegas office, attended 14 orientation, and completed all her paperwork but Chu prevented her from doing so. 15 62. Plaintiff had been trying without success to make CHU and Mullaney comprehend that 16 for the last three days. 17 63. Phase Four involved leading Plaintiff to believe that her employment with IBM was 18 still viable, even though it was not, and to maintain the false pretenses at least until Plaintiff was 19 safely on the airplane leaving Las Vegas immediately after signing the IBM HR documents on 20 Tuesday February 23, 2016. Plaintiff felt completely violated that Mullanery forced her to get into 21 a car with him and escort her personally to the Las Vegas Airport. While Mullanery was driving 22 Plaintiff to the airport she once again told him how uncomfortable she had felt and specifically 23 asked him in the car if her job was in jeopardy. Mullanery told Plaintiff not to worry and that her 24 job was not in jeopardy and that she would not be terminated. 25 64. Prevaricating, Mullaney said no, that IBM "WE" had just hired her with her 26 completion of the 1-9 form. 27 65. Disingenuously, Mullaney said he was very excited to have Plaintiff join the team. 28 lAw OppicIs O L.ISA LMMCI ATrO,NEYSAX LAW 523 W. 6th SDI. lIthe 430 Lo.Ak.. CA 90014 Tth (213) 743-9311 P (213) 743-9611 - I COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=NP== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 10 of 34 Page ID #:169 I n 0. 0 1 66. Mullaney said he would call Plaintiff again on Friday to follow up and discuss next 2 steps. Plaintiff even expressed in the car while driving to the airport again, how uncomfortable she 3 had felt with the way CHU had treated her and asked if there were any other options. 4 67. Mullaney waited until Plaintiff was seen walking into the airport before driving away. 5 Wednesday, February 24, 2016 6 68. On Wednesday, Plaintiff received a text from Mullaney admitting he had forgotten to 7 ask for a copy of Plaintiff's passport in connection with the 1-9 form. Mullaney asked Plaintiff to 8 send it to him. Plaintiff complied. Plaintiff also received emails from Cindy Donnovan and CHU 9 urgently requesting copies of her passport and social security card since they neglected to follow 10 the proper IBM process by having Plaintiff go to the IBM Las Vegas office on her official start 11 date on February 22, 2016 as instructed but prevented by CHU. 12 Friday, February 26, 2016 13 69. Plaintiff never heard from Mullaney on Friday as he committed he would call her to 14 follow up with her. 15 Monday, February 29, 2016 16 70. On Monday Plaintiff received an email from Mullaney instructing her to call him. 17 71. When Plaintiff reached Mullaney, he informed her that her employment with IBM was 18 terminated effective February 26, 2016, and that she would be sent her paycheck for the week. 19 72. Plaintiff did not understand at first and asked what could be done, whether she was 20 able to work for someone else at IBM, and whether IBM could find her another role. In additional 21 he under false pretenses he told Plaintiff that her job was not injeopardy which was a complete 22 he. Losing her job with IBM created a hardship for Plaintiff as she turned down two other job 23 opportunities to join IBM. 24 73. Mullaney said no, the decision had already been made and because HR was now 25 involved. HR never spoke to Plaintiff about any of her claims. They did not perform an. 26 I investigation or allow Plaintiff to apply for another role in the company. HR failed to do their job 27 I and protect Plaintiff. 28 1..&w Ovp,css Or LISA I. MAKI ATTO2NKYSAXIAW 523W. 6th S,, SthI 430 Lo, Ao4I,,, C.90014 Td (213) 745.9511 F., (213) 743-9611 -11- COMPLAThT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=NQ== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 11 of 34 Page ID #:170 1 74. Plaintiff asked about the $20,000 hiring bonus which she was supposed to be paid, and 2 whether she would receive a severance package because of the way Plaintiff was treated. 3 75. Mullaney said none would be provided. Mullaney tried to get Plaintiff to sign a legal 4 waiver agreement with Plaintiff refused. 5 Tuesday, March 1, 2016 6 76. On Tuesday Plaintiff received the paycheck for her week of service, two days late 7 pursuant to California law. 8 Wednesday, March 2, 2016 9 77. On Wednesday Mullaney sent Plaintiff an email asking her to send any outstanding 10 receipts for expenses so he could make sure that Plaintiff was reimbursed in full. 11 78. In response, Plaintiff again set forth her concerns to Mullaney, and told him she would 12 have her lawyer respond. Plaintiff indicated that she was still willing to consider another 13 1 employment role since she had given up two job offers to accept the positionwith IBM. 14 79. Mullaney never responded to Plaintiff's last email. 15 80. Plaintiff was never given any reason why she was defrauded, misdirected, harassed, 16 confined to her hotel room, treated like a criminal, forced to leave the trade show, escorted to the 17 airport, or terminated. 18 81. Upon information and belief, Defendants took the foregoing adverse actions against 19 Plaintiff because she was a temporarily disabled woman over forty (40) years of age. 20 82. On information and belief; Plaintiff was replaced in her employment position by 21 another person. Plaintiff was placed on the IBM DO NOT HIRE list and although IBM had other 22 available positions, she was not permitted to apply for them. 23 83. Since February 29, 2016, Plaintiff has been searching without success for a suitable 24 employment position. 25 84. Upon information and belief, IBM fuiled and refused to conduct an investigation of 26 Plaintiff's complaints because any real investigation would obviously reveal that IBM was and is 27 liable to Plaintiff for a host of wrongs, including fraudulent inducement, negligent supervision and 28 L'tW OFFIc52 OF LISA L MAts A,r0,Ns,s AT lAW 523W. 6th Swtç &tlw 450 Lo. AogoIo., CA.96014 Tob (213) 742-9511 Poor (213) 7454611 -12- COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=NR== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 12 of 34 Page ID #:171 1 retention, discrimination, harassment, retaliation, failure to accommodate her temporary disability, 2 failure to engage in the interactive process, and wrongful termination in violation of public policy. 3 85. Defendants' conduct described herein was undertaken, authorized and/or ratified by 4 IBM and its officers and/or managing agents, including, but not limited to CHU and those 5 identified herein as DOES 1 through 100, who were authorized and empowered to make decisions 6 that reflect or create policy for IBM. The aforementioned conduct of said managing agents and 7 individuals was therefore undertaken on behalfoflBM. IBM further had advanced knowledge of 8 the actions and conduct of said individuals whose actions and conduct were ratified, authorized 9 and approved by managing agents whose precise identities are unknown to Plaintiff at this time 10 and are therefore identified and designated herein as DOES 1 through 100, inclusive. 11 86. As a result of Defendants' actions, Plaintiff has suffered and will continue to suffer 12 general and special damages, including severe and profound pain and emotional distress, anxiety, 13 and depression, as well as medical expenses, expenses for psychological counseling and treatment, 14 and past and future lost wages and benefits. 15 87. As a result of the above, Plaintiff is entitled to past and future lost wages, incentive 16 compensation, and benefits. 17 88. Plaintiff claims general damages for emotional and mental distress and aggravation in a 18 sum in excess of the jurisdictional minimum of this court. 19 89. Because the acts taken toward Plaintiff were carried out by managerial employees 20 acting in a deliberate, cold, callous, cruel and intentional manner, in conscious disregard of 21 Plaintiffs rights and in order to injure and damage her, Plaintiff requests that punitive damages be 22 assessed and levied against Defendants and each of them3 in sums in excess of the jurisdictional 23 minimum of this court. 24 25 26 27 28 LAW OFFICSA OF LISA LMAKI ATrOSNETS AT LAW 323W 6th SIrrI, SNIW 430 10. AogI., CA90014 Td (213) 745.9311 Fo (213)745-3011 -13- COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=NS== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 13 of 34 Page ID #:172 1 FIRST CAUSE OF ACTION 2 BY PLAINTIFF 3 FOR FRAUDULENT INDUCEMENT 4 AGAINST ALL DEFENDANTS AND DOES 1-100 INCLUSiVE 5 90. Plaintiff realleges and incorporates herein by reference Paragraphs 1 through 85 above, 6 inclusive, as though fully set forth herein. 7 91. On and around January 5, 2016, Defendants, by and through their HR recruitment 8 office, acting on the Defendants' behalf and at their express instruction, fraudulently induced 9 Plaintiff to begin work for IBM by making the following materially false representations: 10 a. That Plaintiff would be employed by IBM as loT Asset Management Sales 11 Specialist; 12 b. That Plaintiff would be paid annual total cash compensation estimated at 13 I $237,805, with a base salary of$l30,000 and sales incentives of $107,805; 14 c. That Plaintiff would be paid a $20,000 hiring bonus; and 15 d. That Plaintiff would be eligible for the IBM benefits program, including a 16 portfolio of health care benefits; income protection in case of serious injury, illness, or death; life 17 insurance and disability benefits; vacation, holidays, and personal leave; and a retirement program 18 designed to help build financial security. 19 92. Defendants made these representations with the intent to fraudulently induce Plaintiff 20 to accept employment with IBM. 21 93. Each of the foregoing representations was false, and Defendants knew them to be false 22 at the time they were made. Defendants never had any intention of employing Plaintiff as an JoT 23 Asset Management Sales Specialist; paying the compensation to which Plaintiff was entitled; 24 paying the $20,000 hiring bonus; or allowing Plaintiff to be eligible for the IBM benefits program. 25 94. Plaintiff is informed and believes, and based thereon alleges, that CHU, acting as 26 principal agent for Defendants, on their express instruction and direction, intentionally concealed, 27 suppressed, or misrepresented material facts regarding Defendants' intentions with respect to 28 Plaintiffs duties, wages, bonuses, and benefits, for the purpose of inducing Plaintiff to commence LAW OPFIcSA OF LISAL MARl ATTOSNBRl AT SAW 523 W. 6th SRRt, SRIW 450 Lo. Aog.Io., CA 90014 TdL (253) 745-9511 Fo. (213) 745-9611 -14- COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=NT== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 14 of 34 Page ID #:173 working for Defendants, so that Defendants, and not Plaintiff, could realize significant monetary gains. At all times material hereto, Plaintiff reasonably believed Defendants' representations, was unaware of the true and concealed facts, and justifiably relied on Defendants' representations, as alleged herein, by flying to Las Vegas in order to accept the Defendants' offer of employment, until her wrongful termination a week later. If Plaintiff had known the true facts and/or the falsity of Defendants' representations, and Defendants' lack of reasonable belief as to the truth of those representations, Plaintiff would not have passed up her two other offers of employment in order to accept the loT Asset Management Sales Specialist position with IBM. As a proximate result of Defendants' fraud and deceit, Plaintiff has suffered damages in an amount to be proven at trial, but in excess of the jurisdictional minimum of this Court. The damage allegations of Paragraphs 86 through 89, inclusive, are herein incorporated by reference. Plaintiff is informed and believes, and on that basis alleges, that in committing the I aforementioned acts and concealments, Defendants, including CHIJ for his own fraudulent misrepresentations, are guilty of oppression, fraud and malice towards her. Therefore, in addition to actual damages, Plaintiff is entitled to recover punitive damages from Defendants, and each of them, according to proof; for the purpose of punishing Defendants and deterring them and others from engaging in such actions in the future. SECOND CAUSE OF ACTION BY PLAINTiFF FOR NEGLIGENT MISREPRESENTATION AGAINST ALL DEFENDANTS AND DOES 1-100, IINCLUS1VE Plaintiff realleges and incorporates herein by reference Paragraphs 1 through 85 above, inclusive, as though fully set forth herein. -15- COMPLAINT FOR DAMAGES 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 LAW OFFIC56 OF LISA LMAKI ATrOSS4HVS AT LAW 523W. 6th SWI, S.I.456 LoIAsgI. CA 95614 Tth (213) 745.9511 P (213)743-5611 bñÜáÄáí=N=m~ÖÉ=NU== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 15 of 34 Page ID #:174 101. Defendants, by and through CH1J, made the representations alleged in Paragraphs 2 90 through 99 above, and incorporated herein by this reference as though set forth in full, 3 negligently with no reasonable basis for believing that they were true. 4 102. Defendants made such representations with the intent to induce Plaintiff to begin 5 working for the Defendants, so that Defendants, not Plaintiff, could realize significant monetary 6 gains. 7 103. At the time Defendants made the representations set forth in Paragraphs 90 through 8 99 above, and incorporated herein by this reference as though set forth in full,, Plaintiff was 9 ignorant of the falsity of such representations. Plaintiff justifiably relied on the representations 10 and did, in fact, pass up two other employment opportunities in order to accept employment with 11 IBM. 12 104. If Plaintiff had known of the falsity of the Defendants' representations, and the 13 Defendants' lack of reasonable belief as to the truth of those representations, Plaintiff would never 14 have accepted employment with Defendants and would never have allowed two other employment 15 opportunities to pass in order to accept employment with the Defendants. 16 105. As a proximate result of Defendants' negligent misrepresentations, Plaintiff has 17 suffered damages in an amount to be proven at trial, but in excess of the jurisdictional minimum of 18 this Court. 19 106. The damage allegations of Paragraphs 86 through 89, inclusive, are herein 20 I incorporated by reference. 21 22 THIRD CAUSE OF ACTION 23 BY PLAINTIFF 24 FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 25 AGAINST ALL DEFENDANTS AND DOES 1-100, INCLUSIVE 26 107. Plaintiff realleges and incorporates herein by reference Paragraphs 1 through 85 27 above, inclusive, as though fully set forth herein. 28 LAW OFFIc50 OF LISA L MAtS M7ORNHSSAT lAW 523W. 6th St,, &ttW 430 Lo. Ang,1., CA99614 Tdt (213) 745-9511 Fo (213) 745-9611 -16- COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=NV== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 16 of 34 Page ID #:175 1 108. A person is liable for intentional infliction of emotional distress if his or her 2 conduct is outrageous; the person either intended to cause another emotional distress or acted with 3 reckless disregard of the probability that the other person would suffer emotional distress; the 4 other person suffered severe emotional distress; and the conduct was a substantial factor in causing 5 the emotional distress. .6 109. As alleged herein, Defendants engaged in extreme and outrageous conduct against 7 Plaintiff, including but not limited to defrauding Plaintiff; misdirecting her; discriminating against, 8 harassing, and retaliating against Plaintiff confining her to her hotel room; treating Plaintiff like a 9 criminal; forcing her to leave the trade show; escorting Plaintiff to the airport; and terminating her 10 employment in violation of the public policy of the State of California, 11 110. Defendants intended to cause, or acted in reckless disregard of the probability of 12 causing, emotional distress to Plaintiff. 13 111. Defendants' conduct proximately caused Plaintiff severe emotional suffering and 14 I distress. 15 112. The damage allegations of Paragraphs 86 through 89, above, are herein 16 incorporated by reference. 17 113. The foregoing conduct of Defendants individually, or by and through their 18 managing agents, was intended by the Defendants to cause injury to the Plaintiff or was despicable 19 conduct carried on by the Defendants with a willful and conscious disregard of the rights of 20 Plaintiff or subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiffs 21 right to be free from interference by threats, intimidation, or coercion, or attempts to interfere by 22 threats, intimidation, or coercion, such as to constitute malice, oppression or fraud under 23 California Civil Code §3294, thereby entitling Plaintiff to punitive damages in an amount 24 appropriate to punish or make an example of Defendants. 25 26 27 28 Low OFFICES OF LISA LMMII ATTO4NHYIkFL&w 523W. 6th SEo, &A, 450 X.o. CA 90014 Tth (213) 745-9511 F.x (213) 745-9611 -17- COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=OM== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 17 of 34 Page ID #:176 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 LW OFFICES OF USA LMAKI A1TOBNET!ATIAW 57.3W. 6th Sttt, &tSA 450 L. Attgk.,CA.46014 Tdt (213) 745-9511 F. (213)745-9611 FOURTH CAUSE OF ACTION BY PLAINTIFF FOR DISCRIMINATION IN VIOLATION OF GOV'T CODE 4612940 ET SEp. AGAINST IBM AND DOES 1-100, INCLUSIVE Plaintiff realleges and incorporates herein by reference Paragraphs 1 through 85 above, inclusive, as though fuliy set forth herein. At all times hereto, the FEHA was in full force and effect and was binding upon II Defendants and each of them. As such term is used under FEHA, "on the bases enumerated in this part" means or refers to discrimination on the bases of one or more of the protected characteristics under FEHA. FEHA requires Defendants to refrain from discriminating against an employee on the basis of temporary disability, sex, and age, and to prevent discrimination on the basis of temporary disability, sex, or age from occurring. As a temporarily disabled woman over forty (40) years of age, Plaintiff was a member of multiple protected classes. Plaintiff suffered the adverse employment actions of discrimination; harassment; retaliation; failure to accommodate a known disability; failure to engage in the interactive process; refusal to investigate discrimination, harassment, and retaliation; failure to prevent discrimination, harassment, and retaliation; and termination; and was harmed thereby. Plaintiff is informed and believes that her temporary disability, sex, and age were a substantial motivating reason and/or factor in the decision to terminate Plaintiff Said conduct violates the FEHA, and such violations were a proximate cause in Plaintiff s damage as stated below. The damage allegations of Paragraphs 86 through 89, inclusive, are herein incorporated by reference. The foregoing conduct of the Defendants individually, or by and through their managing agents, was intended by the Defendants to cause injury to the Plaintiff or was despicable conduct carried on by the Defendants with a willful and conscious disregard of the rights of -18- COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=ON== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 18 of 34 Page ID #:177 'H 0 0 1 Plaintiff or subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff's 2 right to be free from interference by threats, intimidation, or coercion, or attempts to interfere by 3 threats, intimidation, or coercion, such as to constitute malice, oppression or fraud under 4 California Civil Code §3294, entitling Plaintiff to punitive damages in an amount appropriate to 5 punish or make an example of Defendants. 6 124 Pursuant to California Government Code §12965(b), Plaintiff requests a reasonable 7 award of attorneys' fees and costs, including expert fees pursuant to the FEHA. 8 9 FIFTH CAUSE OF ACTION 10 BY PLAINTIFF 11 FOR RETALIATION IN VIOLATION OF GOV'T CODE 12940(h) 12 AGAINST IBM AND DOES 1-100, INCLUSIVE 13 125. Plaintiff realleges and incorporates herein by reference Paragraphs 1 through 85 14 above, inclusive, as though fuiiy set forth herein. 15 126. At all times hereto, the FEHA was in full force and effect and was binding upon 16 I Defendants and each of them. 17 127. These laws set forth in the preceding paragraph require Defendants to refrain from 18 retaliating against an employee for engaging in protected activity. 19 128. Plaintiff engaged in the protected activity of complaining about CHIJ's unlawful 20 discrimination and harassment, including but not limited to the Plaintiffs request that Defendants 21 conduct an adequate investigation. 22 129. Plaintiff suffered the adverse employment actions of discrimination; harassment; 23 retaliation; failure to accommodate a known disability; failure to engage in the interactive process; 24 refusal to investigate discrimination, harassment, and retaliation; failure to prevent discrimination, 25 harassment, and retaliation; and termination; and was harmed thereby. 26 130. Plaintiff is informed and believes that her decision engage in the protected activity 27 of complaining about CFIU's unlawful disciimination and harassment, including but not limited to 28 Low 0971c0s OF LISA I. MAIn ATrO8NBYI AT LOW 523W. 6th SS,AW 430 Lo,Agd., CA 90054 Td (213)743-9511 P. (213) 743-9611 I Plaintiffs request that Defendants conduct an adequate investigation, was a motivating reason -19- COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=OO== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 19 of 34 Page ID #:178 101 1 and/or factor in the decision to effectuate the adverse employment actions against Plaintiff, 2 including termination. 3 131. Defendants violated the FEHA by retaliating against Plaintiff for attempting to 4 exercise her protected rights, as set forth hereinabove. 5 132. Plaintiff is informed and believes, and based thereon alleges, that the above acts of 6 retaliation committed by Defendants were done with the knowledge, consent and/or ratification of, 7 or at the direction of, each other Defendant and the other Managers. 8 133. The above said acts of Defendants constitute violations of the FEHA, and were a 9 proximate cause in Plaintiff's damages as stated below. 10 134. The damage allegations of Paragraphs 86 through 89, inclusive, are herein 11 incorporated by reference. 12 135. The foregoing conduct of Defendants individually, or by and through their 13 managing agents, was intended by Defendants to cause injury to the Plaintiff or was despicable 14 conduct carried on by the Defendants with a willful and conscious disregard of the rights of 15 Plaintiff or subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff's 16 right to be free from interference by threats, intimidation, or coercion, or attempts to interfere by 17 threats, intimidation, or coercion, such as to constitute malice, oppression or fraud under 18 California Civil Code §3294, thereby entitling Plaintiff to punitive damages in an amount 19 appropriate to punish or make an example of Defendants. 20 136. Pursuant to California Government Code § 12965(b), Plaintiff requests a 21 reasonable award of attorneys' fees and costs, including expert fees pursuant to the FEHA. 22 23 SIXTH CAUSE OF ACTION 24 BY PLAINTIFF 25 FOR FAILURE TO ACCOMMODATE DISABILITY/ 26 FAILURE TO ENGAGE IN AN INTERACTWE PROCESS 27 IN VIOLATION OF GOV'T CODE12940 ETSEO. 28 LAW OFFICES OF LISA L MARl ATTORNEYS AT LAW 523W. 6th Smet, SAllE 450 Los Aogslos, CA 95014 Fst (213) 743-9511 Po (213)745.5051 AGAINST IBM AND DOES 1400g INCLUSIVE -20- COMPLAThT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=OP== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 20 of 34 Page ID #:179 ~q I 51 1 137. Plaintiff realleges and incorporates herein by reference Paragraphs 1 through 85 2 above, inclusive, as though fully set forth herein. 3 138. At all times hereto, the FEHA was in full force and effect and was binding upon 4 Defendants and each of them. 5 139. At all times hereto, Plaintiff was willing and able to perform the duties and 6 functions of her position, or could have performed the duties and functions of that position with 7 reasonable accommodations. At no time would performance of the functions of the employment 8 position, with reasonable accommodation for Plaintiffs disability or disability as it was perceived 9 by Defendants, have been a danger to Plaintiffs or any other person's health or safety. 10 Accommodation of Plaintiffs disability or disability as it was perceived by Defendants would not 11 have imposed an undue hardship on Defendants. Defendants failed and refused to accommodate 12 Plaintiff; failed to engage in an interactive process with Plaintiff, and instead discriminated against 13 Plaintiff and wrongfully terminated her from her position, for which she was well qualified. 14 140. Defendants' discriminatory actions against Plaintiff, as alleged above, constituted 15 unlawful discrimination in employment on account of her disability or disability as perceived by 16 Defendants. The above said acts of Defendants constitute violations of the FEHA and violations 17 of the public policy of the State of California. Such violations were a proximate cause in 18 Plaintiff s damage as stated below. 19 141. The damage allegations of Paragraphs 86 through 89, inclusive, are herein 20 incorporated by reference. 21 142. The foregoing conduct of Defendants individually, or by and through their 22 managing agents, was intended by Defendants to cause injury to the Plaintiff or was despicable 23 conduct carried on by the Defendants with a willful and conscious disregard of the rights of 24 Plaintiff or subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiffs 25 right to be free from interference by threats, intimidation, or coercion, or attempts to interfere by 26 threats, intimidation, or coercion, such as to constitute malice, oppression or fraud under 27 California Civil Code §3294, thereby entitling Plaintiff to punitive damages in an amount 28 appropriate to punish or make an example of Defendants. IAWOFFIc00OFLt5ALMAIO ArrosNoysAs JAW 523W. 6th Sost, 001W 450 Lot Aogotot, CA 90014 Tdt (213) 745-9311 PoW (213) 745-9611 -21- COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=OQ== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 21 of 34 Page ID #:180 EO 1 143. Pursuant to California Government Code §12965(b), Plaintiff requests a reasonable 2 award of attorneys' fees and costs, including expert fees pursuant to the FEHA. 3 4 SEVENTH CAUSE OF ACTION 5 BY PLAINTIFF 6 FAILURE TO PREVENT DISCRIMINATION, HARASSMENT, AND RETALIATION 7 IN VIOLATION OF GOV'T CODE 12940(k) 8 AGAINST IBM AND DOES 1-100, INCLUSIVE 9 144. Plaintiff realleges and incorporates herein by reference Paragraphs 1 through 85, 10 inclusive, as though fully set forth herein. 11 145. At all times hereto, the FEHA, including in particular California Government Code 12 § 12940(k), was in full force and effect and was binding upon the Defendants. This subsection 13 imposes a duty on Defendants to take all reasonable steps necessary to prevent discrimination 14 from occurring. As alleged above, Defendants violated this subsection and breached their duty by 15 failing to take all reasonable steps necessary to prevent discrimination from occurring. 16 146. The above said acts of Defendants constitute violations of the FEHA, and were a 17 I proximate cause in Plaintiffs damage as stated below. 18 147. The damage allegations of Paragraphs 86 through 89, inclusive, are herein 19 I incorporated by reference. 20 148. The foregoing conduct of Defendants individually, or by and through their 21 managing agents, was intended by the Defendants to cause injury to the Plaintiff or was despicable 22 conduct carried on by the Defendants with a willful and conscious disregard of the rights of 23 Plaintiff or subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiffs 24 right to be free from interference by threats, intimidation, or coercion, or attempts to interfere by 25 threats, intimidation, or coercion, such as to constitute malice, oppression or fraud under 26 California Civil Code §3294, entitling Plaintiff to punitive damages in an amount appropriate to 27 punish or make an example of Defendants. 28 LAW OFFICES OF LISA I. MAKI ATTOSNHYSA SAW 513W. 6th S,, SUIW 450 IA,Ag1..CA.90614 Tth (213) 745-95U P (513)7404611 -22- COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=OR== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 22 of 34 Page ID #:181 NO r 1 149. Pursuant to California Government Code § 12965(b), Plaintiff requests a reasonable 2 II. award of attorneys' fees and costs, including expert fees pursuant to the FEHA. 3 4 EIGHTH CAUSE OF ACTION 5 BY PLAINTIFF 6 FOR WRONGFUL TERMINATION 7 IN VIOLATION THE PUBLIC POLICY OF THE STATE OF CALIFORNIA 8 AGAINST IBM AND DOES 1-100 INCLUSIVE 9 150. Plaintiff realleges and incorporates herein by reference Paragraphs 1 through 85 10 above, inclusive, as though fully set forth herein. 11 151. At all relevant times mentioned in this complaint, the FEHA was in full force and 12 I effect and was binding on Defendants. This law requires Defendants to refrain, among other 13 things, from discriminating against any employee on the basis of temporary disability, sex, and 14 age, and from retaliating against any employee who engages in protected activity. At all times 15 mentioned in this complaint, Article I, Section 8 of the California Constitution was in full force 16 and effect and binding on Defendants. This law requires Defendants to refrain from disqualifying 17 a person from pursuing employment on the basis of temporary disability, sex, and age, among 18 other things. 19 152. At all times mentioned in this complaint, it was a fundamental policy of the State of 20 I California that Defendants cannot discriminate and/or retaliate against any employee on the basis 21 of temporary disability, sex, and age, among other things. 22 153. Plaintiff believes, and based thereon alleges, that her temporary disability, sex, age, 23 her engaging in protected activity with respect to her temporary disability, sex, and age, and/or 24 some combination thereof, were substantial factors in Defendants' conduct as alleged hereinabove. 25 154. Such discrimination, resulting in the wrongful termination of Plaintiffs 26 employment on the basis of temporary disability, sex, age, engagement in protected activity by 27 reporting what Plaintiff believed to be harassment, Or some combination of these factors, were a 28 LAW OFFICI21 OF LISA LMAO1 ArF0ENBYIATIAw 323W. 6th St, Sttlw 430 Lo. Aogolon, CA. 90014 ToIt (213) 745-9311 Pow (213) 745-9611 proximate cause in Plaintiffs damages as stated below. -23- COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=OS== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 23 of 34 Page ID #:182 155. The above said acts of the Defendants constitute violations of the California 2 Government Code and the public policy of the State of California embodied therein, as set forth 3 above. The Defendants violated these laws by terminating Plaintiff's employment in retaliation 4 for the exercise of protected rights. 5 156. The damage allegations of Paragraphs 86 through 89, inclusive, are herein 6. incorporated by reference. 7 157. The foregoing conduct of Defendants individually, or by and through their 8 managing agents, was intended by the Defendants to cause injury to the Plaintiff or was despicable 9 conduct carried on by the Defendants with a willful and conscious disregard of the rights of 10 Plaintiff or subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff's 11 right to be free from interference by threats, intimidation, or coercion, or attempts to interfere by 12 threats, intimidation, or coercion, such as to constitute malice, oppression or fraud under 13 California Civil Code §3294, thereby entitling Plaintiff to punitive damages in an amount 14 appropriate to punish or make an example of Defendants. 15 16 NINTH CAUSE OF ACTION 17 BY PLAINTIFF 18 FOR DECLARATORY JUDGMENT 19 AGAINST IBM AND DOES 1-100, INCLUSIVE 20 158. Plaintiff realleges and incorporates herein by reference Paragraphs 1 through 85 21 above, inclusive, as though fully set forth herein. 22 159. Government Code § 12920 sets forth the public policy of the State of California as 23 I follows: 24 it is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all 25 persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, 26 color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, 27 gender identity, gender expression, age, or sexual orientation. 28 LAW OFFICFS OP LISA L Mlxi ATTOINEYSATL&w 523W. 6th SSA, S.I.450 90014 T.L (513)143-9311. P. (213) 743-9611 -24- COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=OT== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 24 of 34 Page ID #:183 It is recognized that the practice of denying employment opportunity and discriminating in the terms of employment for these reasons foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advancement, and substantially and adversely affects the interests of employees, employers, and the public in generaL Further, the practice of discrimination because of race, color, religion, sex, gender, gender identity, gender expression, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, or genetic information in housing accommodations is declared to be against public policy. It is the purpose of this part to provide effective remedies that will eliminate these discriminatory practices. This part shall be deemed an exercise of the police power of the state for the protection of the welfare, health, and peace of the 10 people of this state. 11 160. Government Code § 12920.5 embodies the intent of the California legislature and 12 II states: 13 In order to eliminate discrimination, it is necessary to provide effective remedies that will both prevent and deter unlawful 14 employment practices and redress the adverse effects of those practices on aggrieved persons. To that end, this part shall be 15 deemed an exercise of the Legislature's authority pursuant to Section 1 of Article XIV of the California Constitution. 16 17 161. Moreover, Government Code §12921, subdivision (a) says in pertinent part: 18 The opportunity to seek, obtain, and hold employment without discrimination because of race, religious creed, color, national 19 origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender 20 identity, gender expression, age, or sexual orientation is hereby recognized as and declared to be a civil right. 21 22 162. An actual controversy has arisen and now exists between Plaintiff and Defendants 23 concerning their respective rights and duties as it is believed that Defendants may allege that they 24 did not discriminate against, harass, or retaliate against Plaintiff; and that Plaintiff was not 25 terminated as a result of her temporary disability, sex, and age, protected characteristics. Plaintiff 26 contends that Defendants did discriminate against, harass, and retaliate against her on the basis of 27 her temporary disability, sex, and age; and that Plaintiff was retaliated against and wrongfully 28 terminated because of temporary disability, sex, age, engagement in protected activity, and/or LAW 0FF1C00 OF LISA LMAKI A,TO2NEY,ATLAW 523W.6thSt,9uSA450 Lo,A,gk., CA 90014 Th (293) 745-9511 P (213) 745-9611 -25- COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=OU== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 25 of 34 Page ID #:184 1 some combination of these protected characteristics. Plaintiff is informed and believes, and on 2 that basis alleges, that Defendants shall dispute Plaintiffs contentions. 3 163. Pursuant to Code of Civil Procedure § 1060, Plaintiff desires a judicial 4 determination of her rights and duties, and a declaration that Defendants discriminated against, 5. harassed, and retaliated against her on the basis of temporary disability, sex, age, engagement in 6 protected activity, and/or some combination of these protected characteristics. 7 164. Pursuant to Code of Civil Procedure § 1060, Plaintiff desires a judicial 8 determination of her rights and duties, and a declaration that her temporary disability, sex, age, 9 engagement in protected activity, and/or some combination of these protected characteristics was a 10 substantial motivating factor in IBM's decision to terminate Plaintiffs employment. 11 165. A judicial declaration is necessary and appropriate at this time under the 12 circumstances in order that Plaintiff, for herself and on behalf of employees in the State of 13 California and in conformity with the public policy of the State, obtain a judicial declaration of the 14 wrongdoing of Defendants and to condemn such discriminatory employment policies or practices. 15 Harris v. City of Santa Monica (2013) 56 Cal.4th 203. 16 166. A judicial declaration is necessary and appropriate at this time such that Defendants 17 may also be aware of their obligations under the law to not engage in discriminatory practices and 18 to not violate the law. 19 167. Government Code § 12965(b) provides that an aggrieved party, such as the Plaintiff 20 herein, may be awarded reasonable attorney's fees and costs: "In civil actions brought under this 21 section, the court, in its discretion, may award to the prevailing party, including the department, 22 reasonable attorney's fees and costs, including expert witness fees." Such fees and costs expended 23 by an aggrieved party may be awarded for the purpose of redressing, preventing, or deterring 24 discrimination. 25 26 27 28 LOW OFFIc50 OF LISA L MAIl, AT0NEIlSAXLOw 523W. 6th So..., 9.1.. 450 So. Aog.1o., CA914 Td (513) 745-95U P... (213) 7454611 -26- COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=OV== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 26 of 34 Page ID #:185 1 TENTH CAUSE OF ACTION 2 BY PLAiNTIFF 3 FOR WAITING TIME PENALTIES 4 CALIFORNIA LABOR CODE 201-203 5 AGAINST IBM AND DOES 1400, INCLUSIVE 6 168. Plaintiff realleges and incorporates herein by reference Paragraphs 1 through 85 7 above, inclusive, as though fuiiy set forth herein. 8 169. At all relevant times, the Defendants failed to pay all of Plaintiff's accrued wages 9 and other compensation due immediately upon termination. These wages refer, at a minimum, to 10 wages and other compensation that Defendants should have paid, but did not pay over to Plaintiff 11 during the term of her employment and which were due, at the latest, within the time restraints of 12 II Labor Code §201-203. 13 170. As alleged herein, Plaintiff is not exempt from the requirements of California Labor 14 Code §201-203. 15 171. Based on the Defendants' conduct as alleged herein, Defendants are liable for 16 statutory penalties pursuant to California Labor Code §203 and other applicable provisions, as 17 well as attorney's fees and costs. 18 19 ELEVENTH CAUSE OF ACTION 20 BY PLAINTIFF 21 INTENTIONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE 22 AGAINST ALL DEFENDANTS AND DOES 1-100, INCLUSIVE 23 172. Plaintiff realleges and incorporates herein by reference Paragraphs 1 through 85 24 above, inclusive, as though fully set forth herein. 25 173. Plaintiff had an economic relationship with IBM as their employee, with the 26 probability of future economic benefit accruing to Plaintiff if she continued to work for IBM and 27 earn significant wages, compensation and other benefits. 28 SAW OFvIC23 OF LISA LMOKI ATTO NESS AX SAW 523W. 6th SESsI, SElls 490 Lo. Aogolo., Cfr. 56014 Tol (213) 745.9551 Po. (513) 745.9611 -27- COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=PM== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 27 of 34 Page ID #:186 1 174. The Defendants, and each of them,-including CHU, had actual knowledge of this 2 economic relationship between Plaintiff and IBM. 3 175. The intentional conduct of the Defendants, including CHU, as described herein was 4 designed and instigated by said defendants, and each of them, to disrupt Plaintifi's relationship 5 with IBM. 6 176. Plaintiffs relationship with IBM was actually disrupted and, in fact, terminated 7 because, as a direct result of the intentional interference by CHU, Plaintiffs employment with 8 IBM was terminated. 9 177. As a result of Defendants' intentional conduct and resulting actual disruption of her 10 relationship with IBM, Plaintiff suffered economic harm, including loss of wages, compensation,, 11 and other benefits she would have earned working for IBM. 12 178. Defendants' actions as alleged herein were wrongful independent of their 13 interfering nature because Defendants' conduct was retaliatory in violation of the FEHA. 14 179. As a direct and proximate result of Defendants' acts, Plaintiff has suffered, and will 15 continue to suffer general and special damages, in an amount presently unknown, but which 16 Plaintiff is informed and believes, and on that basis alleges, exceeds the jurisdictional minimum of 17 this Court. Plaintiff will seek leave of this Court to amend this complaint to allege the exact 18 amount of damages when it has been ascertained. 19 180. The Defendants' conduct was malicious, oppressive, and/or fraudulent in that CHU 20 and IBM acted with the intent to injure Plaintiff and deprive Plaintiff of her legal rights. The 21 Defendants' conduct was despicable, oppressive, and outrageous, justif"ing the imposition of 22 punitive or exemplary damages against the Defendants in an amount that proof at trial may 23 indicate is appropriate. 24 181. The damage allegations of Paragraphs 86 through 89,, inclusive, are herein 25 incorporated by reference. 26 182. WHEREFORE, Plaintiff is therefore entitled to relief as set forth herein. 27 28 LAW OFFICFS OF LISA L MARl ATTOSNBYSATIAW 52.3W. 6th SR,. Stitle 430 CA 90014 Tth (213)745-9313 P.x (213) 745-3611 -28- COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=PN== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 28 of 34 Page ID #:187 C C 1 TWELFTH CAUSE OF ACTION 2 BY PLAINTIFF 3 FOR PROMISSORY ESTOPPEL 4 AGAINST IBM AND DOES 1-100, INCLUSIVE 5 183. Plaintiff realleges and incorporates herein by reference Paragraphs 1 through 85 6 above, inclusive, as though fuiiy set forth herein. 7 184. On or about January 5, 2016, the Defendants, by and through the Defendants' HR 8 recruitment team, acting on Defendants' behalf, made the promises contained in paragraphs 13 9 and 14 above to Plaintiff if she electe4 to accept employment with IBM. 10 185. At the time the foregoing promises were made, Defendants reasonably expected the 11 foregoing promises to induce action or forbearance on the part of Plaintiff. 12 186. Defendants' promises actually induced action or forbearance by Plaintiff, in that 13 Plaintiff passed up two other employment opportunities after January 5, 2016, in order to accept 14 employment with IBM. 15 187. Plaintiff justifiably relied on the Defendants' promises by passing up the other 16 employment opportunities after January 6, 2016, in order to accept employment with IBM, and 17 would never have done so but for Defendants' promises. 18 188. As a result, injustice to Plaintiff can be avoided only by enforcing the Defendants' 19 promises. 20 189. WHEREFORE, Plaintiff is therefore entitled to relief as set forth herein. 21 22 THIRTEENTH CAUSE OF ACTION 23 BY PLAINTIFI' 24 FOR DEFAMATION 25 AGAINST ALL DEFENDANTS AND DOES 1-100, INCLUSIVE 26 190. Plaintiff realleges and incorporates herein by reference Paragraphs 1 through 83 27 above, inclusive, as though fully set forth herein. 28 lAw Orncos O,LISA LMMO ATr03N32314w 523W. 6th S Sulft 450 Lo. AogoIo., CA900I4 Td (213) 743-9511 Po. (213) 745-9611 -29- COMPLAINT FOR DAMAGES. bñÜáÄáí=N=m~ÖÉ=PO== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 29 of 34 Page ID #:188 0 191. Plaintiff is informed and believes Defendants, and each of them, by the herein- 2 described acts, conspired to, and in fact, did negligently, recklessly, and intentionally caused 3 excessive and unsolicited internal and external publications of defamation, of and concerning 4 Plaintiff, to third persons and to the community. These false and defamatory statements included 5 express and implied: accusations that Plaintiff violated company policies; that she was such a poor 6 performer to justify termination of her employment. These and other similar false statements 7 expressly and impliedly stated that Plaintiff was incompetent and a poor performer. 8 192. While the precise dates of these publications are not known to Plaintiff, they were 9 made within the last approximately six (6) months to justify Plaintiff's wrongful and illegal 10 termination. These publications were outrageous, negligent, reckless, intentional, and maliciously 11 published and republished by Defendants, and each of them. Plaintiff is informed and believes that 12 the negligent, reckless, and intentional publications by Defendants, and each of them, were and 13 continue to be, foreseeably published and republished by Defendants, their agents and employees, 14 recipients, in the community, to wit, Plaintiff has been placed on Defendant IBM's do not hire list. 15 Plaintiff hereby seeks damages for these publications and all foreseeable republications discovered 16 up to the time of trial. 17 193. During the above-described time-frame, Defendants, and each of them, conspired 18 to, and in fact, did negligently, recklessly, and intentionally cause excessive and unsolicited 19 publication of defamation, of and concerning Plaintiff, to third persons, who had no need or desire 20 to know. Those third person(s) to whom these Defendants published this defamation are believed 21 to include, but are not limited to,. other agents and employees of Defendants, and each of them, 22 and the community, all of whom are known to Defendants, and each of them, but unknown at this 23 timc to Plaintiff 24 194. The defamatory publications consisted of oral and written, knowingly false and 25 unprivileged communications, tending directly to injure Plaintiff and Plaintiff s personal, business, 26 and professional reputation. These publications included the following false and defamatory 27 statements (in violation of Civil Code § § 45 and 46(3)(5)) with the meaning and/or substance that 28 Plaintiff: violated company policies; that she was such a poor performer and that she deserved to LAW OFFIC45 OF LISA LMAXI ArOW4BYSkrIAW 523W.6thS,Sil450 LA. A.g.1c., CA90014 T.t (213) 745-9511 P.r: (213) 743-9611 -30- COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=PP== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 30 of 34 Page ID #:189 be terminated. These and similar statements published by Defendants, and each of them, 2 expressly and impliedly asserted that Plaintiff was incompetent and a poor employee. 3 195. Plaintiff is informed, believes and fears that these false and defamatory per se 4 statements will continue to be published by Defendants, and each of them, and will be foreseeably 5 republished by their recipients, all to the ongoing harm and injury to Plaintiff's business, 6 pro fessiOnal, and personal reputations. Plaintiff also seeks redress in this action for all foreseeable 7 republications, including her own compelled self-publication of these defamatory statements. 8 196. The defamatory meaning of all of the above-described false and defamatory 9 statements and their reference to Plaintiff, were understood by these above-referenced third person 10 recipients and other members of the community who are known to Defendants, and each of them, 11 but unknown to Plaintiff at this time. 12 197. None of Defendants' defamatory publications against Plaintiff referenced above are 13 I true. 14 198. The above defamatory statements were understood as assertions of fact, and not as 15 opinion. Plaintiff is informed and believes this defamation will continue to be negligently, 16 recklessly, and intentionally published and foreseeably republished by Defendants, and each of 17 them, and foreseeably republished by recipients of Defendants' publications, thereby causing 18 additional injury and damages for which Plaintiff seeks redress by this action. 19 199. Each of these false defamatory per se publications (as set forth above) were 20 negligently, recklessly, and intentionally published in a manner equaling malice and abuse of any 21 alleged conditional privilege (which Plaintiff denies existed), since the publications, and each of 22 them, were made with hatred, ill will, and an intent to vex, harass, annoy, and injure Plaintiff in 23 order to justify the illegal and cruel actions of Defendants, and each of them, to cause further 24 damage to Plaintiff's professional and personal reputation, to cause her to be fired, to justify her 25 firing, and to retaliate against Plaintiff for prior ill will, rivalry, and disputes in retaliation for her 26 objections to what she believed to be harassment by CHIJ. 27 200. Each of these publications by Defendants, and each of them, were made with 28 knowledge that no investigation supported the unsubstantiated and obviously false statements. The LAW OFFICFS OF LISA LMAKI ATTONHY5 AT LAW 523W. 6th SIS, Sulte 450 Lo,AAg,, CA 90014 T.L. (213) 743-9311 Fr (213) 7454611 -31- COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=PQ== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 31 of 34 Page ID #:190 Defendants, published these statements knowing them to be false, unsubstantiated by any reasonable investigation and the product of hostile witnesses. These acts of publication were known by Defendants, and each of them, to be negligent to such a degree as to be recidess. In fact, not only did Defendants, and each of them, have no reasonable basis to believe these statements, but they also had no belief in the truth of these statements, and in fact knew the statements to be false. Defendants, and each of them, excessively, negligently, and recklessly published these 7 statements to individuals with no need to know, and who made no inquiry, and who had a mere 8 general or idle curiosity of this information. 9 201. The above complained-of publications by Defendants, and each of them, were 10 made with hatred and ill will towards Plaintiff and the design and intent to injure Plaintiff, 11 Plaintiff s good name, her reputation, employment and employability. Defendants, and each of 12 them, published these statements, not with an intent to protect any interest intended to be protected 13 II by any privilege, but with negligence, recklessness and/or an intent to injure Plaintiff and destroy 14 her reputation. Therefore, no privilege existed to protect any of the Defendants from liability for 15 any of these aforementioned publications or republications. 16 202. As a proximate result of the publication and republication of these defamatory 17 statements by Defendants, and each of them, Plaintiff has suffered injury to her personal, business 18 and professional reputation including suffering embarrassment, humiliation, severe emotional 19 distress, shunning, anguish, fear, loss of employment, and employability, and significant economic 20 loss in the form of lost wages and future earnings, all to Plaintiffs economic, emotional, and 21 general damage in an amount according to proof. 22 203. Defendants, and each of them, committed the acts alleged herein recklessly, 23 maliciously, fraudulently, and oppressively, with the wrongful intention of injuring Plaintiff, for 24 an improper and evil motive amounting to malice (as described above), and which abused and/or 25 prevented the existence of any conditional privilege, which in fact did not exist, and with a 26 reckless and conscious disregard of Plaintiff's rights. All actions of Defendants, and each of them, 27 their agents and employees, herein alleged were known, ratified and approved by the Defendants, 28 and each of them. Plaintiff thus is entitled to recover punitive and exemplary damages from LOW OFFICES OP LISA LMME ATF0SNESSATIAW 523W. 6th Smet. MW 430 Li.. Al., CA 90014 TE (213)743-9311 P (213) 745.9611 -32- COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=PR== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 32 of 34 Page ID #:191 1 Defendants, and each of them, for these wanton, obnoxious, and despicable acts in an amount 2 based on the wealth and ability to pay according to proof at time of trial 3 WHEREFORE, Plaintiff requests relief as hereinafter provided. 4 PRAYER FOR RELIEF 5 WHEREFORE, Plaintiff seeks judgment against the Defendants, and each of them, in an 6 amount according to proof, as follows: 7 1. For a money judgment representing compensatory damages including lost wages, 8 bonuses, incentive pay, and other benefits of employment, and all other sums of money, together 9 with interest on these amounts; for other special damages; for general damages for mental pain, 10 anguish, and emotional distress; and for damages in justifiable reliance. 11 2. For waiting time penalties; 12 3. For pre and post judgment interest on each of the foregoing at the legal rate from 13 the date the obligation became due through the date ofjudgment in this matter; 14 4. For a declaratory judgment reaffirming Plaintiffs equal standing under the law and 15 condemning Defendants' discriminatory practices; and 16 5. For injunctive relief barring Defendants' discriminatory employment policies and 17 I practices in the future. 18 WHEREFORE, Plaintiff further seeks judgment against Defendants, and each of them, in 19 an amount according to proof; as follows: 20 6. For punitive damages, pursuant to Civil Code §3294, in an amount sufficient to 21 punish the Defendants for the wrongful conduct alleged herein and to deter such conduct in the 22 future; 23 7. For costs of suit, attorney's fees, and expert witness fees pursuant to the FEHA, the 24 Labor Code, the Government Code, and/or any other basis; 25 8. For post-judgment interest; and 26 9. For any other relief that is just and proper. 27 28 SAW OFFIC52 OF LISA L MAKI ATTO2Nfl53A1AW 523W. 6th 450 Lo. g.l.., CA90014 Tth (213) 743-9331 Po. (213) 743.9611 -33- COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=PS== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 33 of 34 Page ID #:192 2 3 4 5 6 7 .8 9 10 11 12 13 14 15 16 17 18 19 20 21 ...........JURY TRIAL DEMANDED ......................................... Plaintiff demandstrial ofall issues by jury. .......... DATED: May 26, 2016 LAW OFFICES 9ELISA L. MAKI By: LISA L. I Attorneys JANE DC 22 23 24 25 26 27 I 28 LAW OFPIC21 OFL3)ALJ,fMa A2•rcNB,5AT1AW 323W. 68It4SO MgCA9O14 Tb (213) 745.93(1 (23)745.9611 -34- COMPLAINT FOR DAMAGES bñÜáÄáí=N=m~ÖÉ=PT== Case 2:16-cv-04914-JPR Document 7-2 Filed 07/12/16 Page 34 of 34 Page ID #:193 1 Post, Katie (Orange County) From: Jennifer Ostertag Sent: Monday, July 11, 2016 9:45 PM To: Shaffer, Nicole M. (Orange County) Cc: Lisa Maki; Hoffman, Samantha N. (Orange County); Pamela Ramirez Subject: RE: Jane Doe v IBM - meet and confer re Jane Doe pseudonym Hi Nicole, I will have to do some research and get back to you. However, I am in a deposition all day tomorrow. Sincerely, Jennifer Ostertag Law Offices of Lisa L. Maki 523 West 6th Street, Suite 450 Los Angeles, CA 90014 phone 213.745.9511 fax 213.745.9611 jostertag@lisamaki.net CONFIDENTIAL/PRIVATE/PRIVILEGED: THIS E-MAIL MESSAGE AND ANY ATTACHMENTS ARE PERSONAL, CONFIDENTIAL AND INTENDED TO BE REVIEWED ONLY BY DESIGNATED RECIPIENTS. THE MESSAGE AND CONTENTS MAY BE PROTECTED BY THE ATTORNEY WORK PRODUCT AND ATTORNEY CLIENT PRIVILEGES. IF YOU ARE NOT AN INTENDED RECIPIENT YOU MUST NOT REVIEW, COPY, SAVE, FORWARD OR DISSEMINATE IT TO ANYONE. IF YOU HAVE RECEIVED THIS MESSAGE AND ARE NOT AN INTENDED RECIPIENT, PLEASE REPLY TO THE MESSAGE OR BY TELEPHONE AND DELETE IT FROM YOUR SYSTEM. From: Shaffer, Nicole M. (Orange County) [mailto:Nicole.Shaffer@jacksonlewis.com] Sent: Monday, July 11, 2016 3:48 PM To: Jennifer Ostertag Cc: Lisa Maki; Hoffman, Samantha N. (Orange County) Subject: RE: Jane Doe v IBM - meet and confer re Jane Doe pseudonym Jennifer, Thank you for your July 6, 2016, email following up on Ms. Hoffman’s correspondence with Lisa re authority for Plaintiff’s use of the pseudonym, Jane Doe. We recognize that there is state authority demonstrating that a pseudonym may be appropriate in very particular circumstances; however, we do not believe that this case presents one of those circumstances. Indeed, in our research, we also evaluated Doe v. Lincoln Unified Sch. Dist. (2010) 187 Cal.App.4th 1286, because it appears to be the only California civil case where a plaintiff requested anonymity in her lawsuit following an employer’s employment decisions. The California Court of Appeal in that case implied that it based its decision to allow the plaintiff to proceed using a fictitious name not on applicable case precedent, but rather on the shortcomings of defense counsel. See id. at p. 1293 (“Because defendants fail to present any argument as to why plaintiff should not have been permitted to use a fictitious name under the circumstances of this case, we need not consider the issue further.”). Even more importantly, in its discussion surrounding past use of pseudonyms, the court demonstrates that the only instances in which in California state courts allow pseudonyms is when the case involves clear and legitimate privacy interests that implicate rather obvious social stigmas-stigmas that are plainly not present in the matter at hand. (Doe v. Saenz (2006) 140 Cal.App.4th 960 (convicted felons); Hooper v. Deukmejian (1981) 122 bñÜáÄáí=O=m~ÖÉ=PU== Case 2:16-cv-04914-JPR Document 7-3 Filed 07/12/16 Page 1 of 5 Page ID #:194 2 Cal.App.3d 987 (convicted felon); Jane Doe 8015 v. Superior Court (2007) 148 Cal.App.4th 489 (HIV); Doe v. Bakersfield City School Dist. (2006) 136 Cal.App.4th 556 (sexual abuse victim); Doe v. City of Los Angeles (2007) 42 Cal.4th 531 (sexual assault of minors); Johnson v. Superior Court (2000) 80 Cal.App.4th 1050, 1072 (sperm donor testifying about family disease history)). Additionally, we removed the case to federal court on Tuesday, July 5, so the discussion of state authorities is no longer relevant and federal law will apply. Indeed, the Ninth Circuit is even less permitting of the use of fictitious names than state court. As you may know, a plaintiff must use her real name unless identification: (1) creates a risk of retaliatory physical or mental harm; (2) the anonymous party is compelled to admit his or her intention to engage in illegal conduct, thereby risking prosecution; or (3) when anonymity is necessary to preserve the privacy in a matter of a sensitive and highly personal nature. See Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068 (9th Cir. 2000). Plaintiff neither indicates that there is a risk of future retaliation (1), nor does she indicate any compulsion to admit an intention to engage in illegal, prosecutable conduct (2). There is also strong precedent indicating that Plaintiff’s claims do not describe a matter of a sensitive and highly personal nature (3). Such privacy interests are only strong enough to warrant use of a fictitious name in “exceptional case[s]” that serve as the “rare exception.” Doe v. Ayers, 789 F.3d 944, 946 (9th Cir. 2015). For example, in a recent district court case, Doe v. UNUM Life Ins. Co. of Am., No. 15-cv-05622-WHO, 2016 WL 874777, at *1 (N.D. Cal. February 22, 2016), the court applied the above-cite Advanced Textile test and rejected the plaintiff’s argument that he should be able to proceed pseudonymously because he was a well-known lawyer with a severe mental illness that would be aggravated if his peers discovered his condition. The District Court also rejected the plaintiff’s argument that he should be allowed to proceed anonymously because the litigation would reveal highly-sensitive information about his employment and personal life. Id. As the District Court noted, “the potential for embarrassment or increased anxiety brought on by litigation does not justify anonymity.” In light of clear Ninth Circuit precedent strongly disfavoring the use of fictitious names, coupled with a set of claims that are not even unusual, let alone “exceptional,” we are confident that Plaintiff is barred from proceeding in her lawsuit under the fictitious name, Jane Doe. Indeed, Plaintiff’s factual allegations span the course of a few days, and center around Chu’s alleged yelling at Plaintiff and threatening her job. Our deadline for filing motions on this matter is tomorrow, July 12 (we certainly apologize for the delay in getting back to your below email but have needed to look into the issue under federal law). We would prefer to resolve this small matter outside of court and request that Plaintiff’s counsel file a First Amended Complaint using Plaintiff’s real name. However, we have drafted a Motion to Dismiss and/or Strike and are prepared to file it with the District Court if we are unable to resolve this matter by the filing deadline. (We can also look into whether an extension is possible should you need additional time to consider the request to amend Plaintiff’s complaint). Please let us know how you plan to proceed as soon as possible, and/or whether you would like to further discuss. Thank you for your continued professional cooperation, and again apologies for the tight turn around time. Nicole Shaffer Attorney at Law Jackson Lewis P.C. 5000 Birch Street, Suite 5000 Newport Beach, CA 92660 949.885.1370 | Direct 949.885.1360 | Main 949.885.1380 | Fax bñÜáÄáí=O=m~ÖÉ=PV== Case 2:16-cv-04914-JPR Document 7-3 Filed 07/12/16 Page 2 of 5 Page ID #:195 3 nicole.shaffer@jacksonlewis.com www.jacksonlewis.com From: Jennifer Ostertag [mailto:jostertag@lisamaki.net] Sent: Wednesday, July 06, 2016 11:42 AM To: Lisa Maki; Hoffman, Samantha N. (Orange County) Cc: Shaffer, Nicole M. (Orange County); Pamela Ramirez; Zenia Anderson Subject: RE: Jane Doe v IBM - meet and confer re Jane Doe pseudonym Dear Samantha, In response to your email, please be advised that California courts permit plaintiffs to sue under fictitious names [Doe v. Lincoln Unified School Dist. (2010) 187 Cal. App. 4th 1286, 1291-293 (use of pseudonym by plaintiff, tenured teacher accused of being mentally unfit to teach, was appropriate); Hooper v. Deukmejian (1981) 122 Cal. App. 3d 987 (permitting individual convicted on plea of maintaining place for selling or using narcotic to sue under fictitious name on behalf of himself and all others similarly situated to determine whether they were entitled to benefits and protections of marijuana reform legislation)]. In California courts, plaintiffs may use fictitious names to protect their privacy [Doe v. Lincoln Unified School Dist. (2010) 187 Cal. App. 4th 1286, 1291-1293; see Starbucks Corp. v. Superior Court (2008) 168 Cal. App. 4th 1436, 1452 n.7 (judicial use of “Doe plaintiffs” to protect legitimate privacy rights has gained wide currency, particularly given rapidity and ubiquity of disclosures over World Wide Web; see also Doe v. City of Los Angeles (2007) 42 Cal. 4th 531 (former Boy Scouts sued under pseudonyms based on allegations city police officer sexually assaulted them while they were teenagers); Johnson v. Superior Court (2000) 80 Cal. App. 4th 1050, 1072 (parents entitled to depose sperm donor with family history of kidney disease, but donor’s name protected from disclosure to outsiders through order maintaining confidentiality of identity)]. While the Code of Civil Procedure [Code Civ. Proc. § 367] requires that an action be prosecuted in the name of the real party in interest, except as otherwise provided by statute, it does not require that a party sue in his or her own name [Doe v. Lincoln Unified School Dist. (2010) 187 Cal. App. 4th 1286, 1291]. In addition, to plaintiff’s right to protect her privacy, plaintiff is informed that she has been placed on a do not hire list by your client. Sincerely, Jennifer Ostertag Law Offices of Lisa L. Maki 523 West 6th Street, Suite 450 Los Angeles, CA 90014 phone 213.745.9511 fax 213.745.9611 jostertag@lisamaki.net CONFIDENTIAL/PRIVATE/PRIVILEGED: THIS E-MAIL MESSAGE AND ANY ATTACHMENTS ARE PERSONAL, CONFIDENTIAL AND INTENDED TO BE REVIEWED ONLY BY DESIGNATED RECIPIENTS. THE MESSAGE AND CONTENTS MAY BE PROTECTED BY THE ATTORNEY WORK PRODUCT AND ATTORNEY CLIENT PRIVILEGES. IF YOU ARE NOT AN INTENDED RECIPIENT YOU MUST NOT REVIEW, COPY, SAVE, FORWARD OR DISSEMINATE IT TO ANYONE. IF YOU HAVE RECEIVED THIS MESSAGE AND ARE NOT AN INTENDED RECIPIENT, PLEASE REPLY TO THE MESSAGE OR BY TELEPHONE AND DELETE IT FROM YOUR SYSTEM. From: Lisa Maki Sent: Tuesday, July 05, 2016 3:27 PM bñÜáÄáí=O=m~ÖÉ=QM== Case 2:16-cv-04914-JPR Document 7-3 Filed 07/12/16 Page 3 of 5 Page ID #:196 4 To: Hoffman, Samantha N. (Orange County) Cc: Shaffer, Nicole M. (Orange County); Jennifer Ostertag; Pamela Ramirez; Zenia Anderson Subject: RE: Jane Doe v IBM - meet and confer re Jane Doe pseudonym Hello-we’ll look into. Lisa L. Maki - Law Offices of Lisa L. Maki 523 West 6th Street, Suite 450 Los Angeles, CA 90014 phone 213.745.9511 fax 213.745.9611 lmaki@lisamaki.net CONFIDENTIAL/PRIVATE/PRIVILEGED: THIS E-MAIL MESSAGE AND ANY ATTACHMENTS ARE PERSONAL, CONFIDENTIAL AND INTENDED TO BE REVIEWED ONLY BY DESIGNATED RECIPIENTS. THE MESSAGE AND CONTENTS MAY BE PROTECTED BY THE ATTORNEY WORK PRODUCT AND ATTORNEY CLIENT PRIVILEGES. IF YOU ARE NOT AN INTENDED RECIPIENT YOU MUST NOT REVIEW, COPY, SAVE, FORWARD OR DISSEMINATE IT TO ANYONE. IF YOU HAVE RECEIVED THIS MESSAGE AND ARE NOT AN INTENDED RECIPIENT, PLEASE REPLY TO THE MESSAGE OR BY TELEPHONE AND DELETE IT FROM YOUR SYSTEM. From: Hoffman, Samantha N. (Orange County) [mailto:HoffmanS@jacksonlewis.com] Sent: Tuesday, July 05, 2016 9:08 AM To: Lisa Maki Cc: Shaffer, Nicole M. (Orange County) Subject: Jane Doe v IBM - meet and confer re Jane Doe pseudonym Lisa - Thanks for your time on June 28th wherein we discussed, inter alia, Plaintiff’s use of the Jane Doe pseudonym. I write to follow up to see if you have any legal authority for plaintiff filing the lawsuit under a pseudonym, as well as her factual basis for doing so. We look forward to hearing from you on both. Based on our research and review of a plaintiff’s use of a pseudonym, and in particular this Plaintiff’s use of such in the instant employment case, we do not see a legal or factual basis to support the use of a pseudonym. Given her very short employment with IBM in February of 2016 and the absence of any sensitive information in the complaint or being alleged in this case, versus the prejudice to IBM and the public’s right of access to judicial proceedings, there appears to be no basis for Plaintiff to file under a pseudonym. Of course, if you have any authority to support her use of the pseudonym, we would very much appreciate you providing it so we may review. In the absence of that and given the foregoing, IBM requests that Plaintiff amend her Complaint to properly represent Plaintiff with her legal name rather than Jane Doe. Should Plaintiff fail to do this, IBM will proceed with a motion to dismiss/motion to strike. Please let us know how you plan to proceed. Thank you in advance for your professional cooperation, and we look forward to hearing from you. Samantha N. Hoffman Attorney at Law Jackson Lewis P.C. 5000 Birch Street, Suite 5000 Newport Beach, CA 92660 949.885.1364 | Direct 949.885.1380 | Fax HoffmanS@jacksonlewis.com www.jacksonlewis.com Representing management exclusively in workplace law and related litigation Confidentiality Note: This e-mail, and any attachment to it, contains privileged and confidential information intended only for the use of the individual(s) or entity named on the e-mail. If the reader of this e-mail is not the intended recipient, or the employee or agent responsible for delivering it to the intended recipient, you bñÜáÄáí=O=m~ÖÉ=QN== Case 2:16-cv-04914-JPR Document 7-3 Filed 07/12/16 Page 4 of 5 Page ID #:197 5 are hereby notified that reading it is strictly prohibited. If you have received this e-mail in error, please immediately return it to the sender and delete it from your system. Thank you. bñÜáÄáí=O=m~ÖÉ=QO== Case 2:16-cv-04914-JPR Document 7-3 Filed 07/12/16 Page 5 of 5 Page ID #:198 Case No.: 2:16-CV-4914 JPR 1 [PROPOSED] ORDER ON MTN TO DISMISS AND/OR STRIKE 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 Having reviewed Defendant’s Motion to Dismiss and/or Strike and other documents and pleadings on file in this action, IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss and/or Strike is GRANTED. Dated: ________ ____________________________________ HONORABLE JEAN P. ROSENBLUTH UNITED STATES DISTRICT COURT JUDGE UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION JANE DOE, an individual Plaintiff vs. INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York Corporation; BRIAN CHU, an individual and DOES 1-100, inclusive. Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:16-cv-4914 JPR [PROPOSED] ORDER ON DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PURSUANT TO FEDERAL RULES 12(b)(1) AND 12(f) [Filed concurrently with Notice of Motion and Motion to Dismiss and/or Strike; Declaration of Nicole M. Shaffer; Proof of Service] Date: August 11, 2016 Time: 10:00 a.m. Judge: Hon. Jean P. Rosenbluth Case 2:16-cv-04914-JPR Document 7-4 Filed 07/12/16 Page 1 of 1 Page ID #:199 Case No.: 2:16-cv-4914 JPR 1 PROOF OF SERVICE 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 Samantha N. Hoffman (SBN 212135) HoffmanS@jacksonlewis.com Nicole M. Shaffer (SBN 244366) Nicole.shaffer@jacksonlewis.com JACKSON LEWIS P.C. 5000 Birch Street, Suite 5000 Newport Beach, CA 92660 (949) 885-1360- Office (949) 885-1380 - Fax Attorneys for Defendants INTERNATIONAL BUSINESS MACHINES CORPORATION UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION JANE DOE, an individual, Plaintiff, vs. INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York Corporation; BRIAN CHU, an individual and DOES 1-100, inclusive, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. 2:16-cv-4914 JPR PROOF OF SERVICE Complaint Filed: May 26, 2016 Case 2:16-cv-04914-JPR Document 7-5 Filed 07/12/16 Page 1 of 2 Page ID #:200 Case No.: 2:16-cv-4914 JPR 2 PROOF OF SERVICE 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 PROOF OF SERVICE UNITED STATES DISTRICT COURT -CENTRAL DISTRICT OF CALIFORNIA CASE NAME: JANE DOE vs. INTERNATIONAL BUSINESS MACHINES CORPORATION, ET AL. CASE NUMBER: I am employed in the County of ORANGE, State of California. I am over the age of 18 and not a party to the within action; my business address is 5000 Birch Street, Suite 5000, Newport Beach, CA 92660. On July 12, 2016, I served the foregoing document(s) described as: 1. DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS AND/OR STRIKE PURSUANT TO FEDERAL RULES 12(b)(1) AND 12(f); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF; 2. DECLARATION OF NICOLE SHAFFER IN SUPPORT OF DEFENDANT INTERNATIONAL BUSINESS MACHINES CORPORATION’S MOTION TO DISMISS AND/OR STRIKE PURSUANT TO FEDERAL RULES 12(b)(1) AND 12(f); and 3. [PROPOSED] ORDER ON DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE PURSUANT TO FEDERAL RULES 12(b)(1) AND 12(f) in this action as follows: Lisa L. Maki Jennifer Ostertag Law Offices of Lisa L. Maki 523 West 6th Street, Suite 450 Los Angeles, CA 90014 T: (213) 745-9511 F: (213) 745-9611 Attorneys for Plaintiff JANE DOE____________ [XX] BY NOTICE OF ELECTRONIC FILING. The above-listed counsel have consented to electronic service and have been automatically served by the Notice of Electronic Filing, which is automatically generated by CM/ECF at the time said document was filed, and which constitutes service pursuant to FRCP 5(b)(2)(D). [XX] FEDERAL I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on July 12, 2016, at Newport Beach, California. ___/s/ Katie Post____________ KATIE POST Case 2:16-cv-04914-JPR Document 7-5 Filed 07/12/16 Page 2 of 2 Page ID #:201