Case 2:16-cv-08598-SVW-MRW Document 38-1 Filed 01/06/17 Page 23 of 37 Page ID #:215 13 DEFENDANTS’ MEMORANDUM SUPPORTING FRCP 12(b)(6) MOTION TO DISMISS 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 Imposing liability on Defendants based solely on the websites on which they advertise apartments would constitute a constitutionally prohibited form of censorship and would violate Defendants’ constitutional rights. V. PLAINTIFFS FAIL TO STATE A LEGALLY COGNIZABLE CLAIM FOR “VIOLATIONS OF THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT, CAL. GOV’T CODE §§12900-12966 [‘FEHA’].” A. Plaintiffs FEHA Claim Is Not Legally Cognizable For The Same Reasons As Their FHA Claim.

This Court’s decision in Aguilar v. Avis Rent A Car System, 21 Cal. 4th 121 (1999), cert. denied, 529 U.S. 1138 (2000), is not to the contrary. In Aguilar, a plurality of this Court upheld an injunction issued underthe Fair Employment and Housing Act (FEHA) (Gov. C., § 12900, et seq.) enjoining the continuing use ofracial epithets in the workplace.

Thus, this claim cannot be properly stated against either Red Cross or Nebbitt. Plaintiff’s Fifth Cause of Action for Violation of Cal. Gov. Code § 12900 Against Defendants Fails as a Matter of Law as Plaintiff Cannot Establish a Prima Facie Case. Plaintiff alleges that she was discriminated, harassed and retaliated against because of her age, ancestry, color, ethnicity, race, gender, disability, perceived disability, religion, needing family care or medical leave, needing a good faith interactive process to evaluate her claimed disability and for needing accommodation.

Plaintiff Elsiddig Elhindi is pursuing this action against his employers defendants State of California and California Department of Corrections and Rehabilitation (where he is employed at California State Prison at Sacramento) for employment discrimination based on religion, failure to accommodate his religion, harassment based on religion, race and national origin, and retaliation. Plaintiffs claims arise pursuant to California's Fair Employment and Housing Act (Cal. Govt. Code § 12900, et seq.). SmtcJ07 26 0:1kl.1nd, CA 94612 JURISDICTION AND VENUE (510) 452-5000 (510) 452-5004 (fn.,) 27 2.

1 JA 1-51. He sought declaratory, injunctive, and other relief under the California Fair Employment and Housing Act, Cal. Gov. Code §§ 12900 et seq., the California Unfair Business Practices Act, Cal. Bus. & Prof. Code §§ 17200 et seqg., and the commonlaw. 1 JA 23-24.

1 JA 1-51. He sought declaratory, injunctive, and other relief under the California Fair Employment and Housing Act, Cal. Gov. Code §§ 12900 et seq., the California Unfair Business Practices Act, Cal. Bus. & Prof. Code §§ 17200 et seg., and the commonlaw.1 JA 23-24. II. Defendants’ “Arbitration Acknowledgements” Defendants responded by moving to compelarbitration, citing three conflicting and misleading Arbitration Acknowledgements that Defendants required Sandquist to hurriedly sign on hisfirst day of work.

DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS THE COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES [3:13-CV-00141-EDL] 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 “We cannot have trade and commerce in world markets and international waters exclusively on our terms, governed by our laws, and resolved in our courts.” — Chief Justice Warren E. Burger, M/S Bremen v. Zapata Off-shore Co., 407 U.S. 1, 9 (1972). I. INTRODUCTION Plaintiff Mahmoud Kedkad brings this employment action against Defendants Microsoft Corporation (“MS Corporation”), Microsoft Libya (“MS Libya”), EMEA, and NEPA, asserting claims under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., the Family Medical Leave Act, 29 U.S.C. § 2615 et seq., the California Fair Employment and Housing Act, CAL. GOV’T CODE ANN. § 12900 et seq., the California Family Rights Act, CAL. GOV’T CODE ANN. § 12945.1 et seq., and the common law. Distilled to its essence, this action presents a dispute arising out of Plaintiff’s employment in Libya by MS Libya, the Libyan entity that employed Plaintiff at all times relevant to the Complaint.

Cal. Rules of Court 8.500(b)(1). . Asset forth herein, the opinion of the court below warrants review for several significant reasons. First, it applies the after-acquired evidence and unclean hand doctrines to defeat the civil rights protections of the Fair Employment and Housing Act (“FEHA”), Cal. Gov’t Code § 12900 etseq., a result squarely at odds with the decision of the U.S. Supreme Court in McKennon v. Nashville Banner Publishing Co. (1995) 513 U.S. 352. Second,it interprets SB 1818, a landmark remedial statute enacted in response to an adverse decision of the U.S. Supreme Court, in a manner inconsistent both with the statute’s plain language as well as the Legislature’s express intent. Lastly, the decision below seriously misapplied well-established standards applicable to summary judgment which,if followed by other courts, would create confusion in the lower courts over the applicable burdens ofproof.

(FAC ¶¶ 13, 24, 25.) In his First through Fifth Causes of Action, Plaintiff alleges violations of FEHA, codified at California Government Code §§12900 et seq. Specifically, Plaintiff asserts claims for discrimination, retaliation, failure to participate in the interactive process, failure to provide reasonable accommodations, and failure to prevent harassment, discrimination and/or retaliation.

Civil Code § 3291; 9. That Defendants, their successors, agents, representatives, employees and all persons who act in concert with said Defendants be permanently enjoined from committing any acts of discrimination, retaliation, or other similar acts, including the violations alleged in all of the Causes of Action herein and as are prohibited by the Fair Employment and Housing Act, California Government Code §§12900 – 12996; 10.7.