NOTICE OF REMOVAL from Los Angeles County Superior Court, case number 22STCV33909 Receipt No: ACACDC-34572835 - Fee: $402, filed by Defendant Tesla Inc. (Attorney Kiran Singh Lopez added to party Tesla Inc(pty:dft))(Lopez, Kiran)
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KIRAN S. LOPEZ (SBN 252467)
Tesla, INC.
901 Page Avenue
Fremont, California Telephone: (510) 239-kirlopez@tesla.com
Attorney for Defendant
TESLA, INC.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CRAIG NAKAYAMA, an individual,
Plaintiff,
v.
TESLA, INC., a Delaware corporation;
and DOES 1 through 20, inclusive,
Defendants.
Case No. 2:23-cv-DEFENDANT TESLA, INC.’S
NOTICE OF REMOVAL
Los Angeles County Superior Court
Case No. 22STCVComplaint Filed: October 19,
DEFENDANT TESLA, INC.’S NOTICE OF REMOVALPage 2 Page ID #:
TABLE OF CONTENTS
I.
PROCEDURAL BACKGROUND IN STATE COURT..........................................
II.
TIMELINESS OF REMOVAL ................................................................................
III.
THIS COURT HAS DIVERSITY JURISDICTION OVER THIS CASE ............... A.
There Is Complete Diversity Of Citizenship In This Case .............................
1.
Plaintiff Is A Citizen Of California ......................................................
2.
Tesla Is Not A Citizen Of California ....................................................
3.
Doe Defendants Should Be Disregarded ..............................................
B.
The Amount In Controversy Requirement Has Been Met .............................
1.
Standard To Demonstrate Amount In Controversy ..............................
2.
General And Punitive Damages Exceed $75,000.................................
3.
Verdicts In Cases With Similar Claims Exceed $75,000 .....................
4.
Attorneys' Fees Exceed $75,000 ..........................................................
IV.
VENUE .....................................................................................................................
V.
SERVICE OF NOTICE OF REMOVAL ON PLAINTIFF AND THE
CLERK OF THE SUPERIOR COURT ....................................................................
VI.
PRAYER FOR REMOVAL .....................................................................................
i
DEFENDANT TESLA, INC.’S NOTICE OF REMOVAL
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TO THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT
OF CALIFORNIA AND TO PLAINTIFF AND HIS COUNSEL OF RECORD:
PLEASE TAKE NOTICE THAT Defendant Tesla, Inc. (“Tesla” or “Defendant”)
hereby removes the above-referenced action from the Superior Court of the State of
California for the County of Los Angeles, to the United States District Court for the Central
District of California. This removal is made pursuant to 28 U.S.C. §§1441 and 1446,
asserting diversity jurisdiction under 18 U.S.C. §1332, codified in relevant part at
U.S.C. §1332. Tesla states that removal is proper for the following reasons.
I.
PROCEDURAL BACKGROUND IN STATE COURT
On October 19, 2022, Plaintiff Craig Nakayama (“Plaintiff”) filed a Complaint
entitled, “CRAIG NAKAYAMA, Plaintiff v. TESLA, INC., a Delaware corporation; and
DOES 1 through 20, inclusive, Defendants,” Los Angeles County Superior Court Case No.
22STCV33909 (the “Complaint”). The Complaint alleged six causes of action for: (1)
Disability Discrimination in Violation of the Fair Employment and Housing Act
(“FEHA”); (2) Failure to Provide Reasonable Accommodations in Violation of FEHA; (3)
Failure to Engage in a Good Faith Interactive Process in Violation of FEHA; (4) Retaliation
in Violation of FEHA; (5) Failure to Prevent Discrimination and Retaliation in Violation
of FEHA; and (6) Wrongful Termination in Violation of Public Policy. A true and correct
copy of the Complaint is attached hereto as Exhibit 1.
On December 7, 2022 Tesla was served with copies of the Summons, Complaint,
Civil Case Cover Sheet, and attendant documents through its agent for service of process,
CT Corporation, in Glendale, California. See concurrently filed Declaration of Kiran S.
Lopez (“Lopez Decl.”) at ¶2 and Exhibit A (service package).
Exhibit 1 attached hereto and Exhibit A to the concurrently filed Lopez Declaration
constitute all of the pleadings served on Tesla and/or filed by Tesla in the Los Angeles
County Superior Court prior to filing of this Notice of Removal. Lopez Decl. at ¶4. A Case
Management Conference has been scheduled for February 16, 2023. Id.
DEFENDANT TESLA, INC.’S NOTICE OF REMOVAL
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II.
TIMELINESS OF REMOVAL
This Notice of Removal is timely filed as it is filed less than one year from the date
this action was commenced and within 30 days of service of the Complaint on Tesla, the
moving Defendant. 28 U.S.C. §1446(b); Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc.
(1999) 119 S. Ct. 1322, 1325 (thirty-day deadline to remove commences upon service of
the summons and complaint).
III.
THIS COURT HAS DIVERSITY JURISDICTION OVER THIS CASE
Subject matter jurisdiction on the basis of diversity of citizenship requires that: (1)
there is complete diversity of citizenship between plaintiff and defendants; and (2) “the
matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.”
28 U.S.C. §1332. A Notice of Removal is sufficient “if it alleges that the parties are of
diverse citizenship and that the matter in controversy exceeds, exclusive of interest and
costs, the sum specified by 28 U.S.C. §1332 …” Ellenburg v. Spartan Motos Chassis, Inc.
show state citizenship for diversity purposes under federal common law a party must . . .
DEFENDANT TESLA, INC.’S NOTICE OF REMOVAL
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be domiciled in the state.”). A person’s domicile is the place he resides with the intent to
The Supreme Court of the United States in The Hertz Corp. v. Friend held that a
corporate entity’s “principal place of business” for determining its citizenship is its “nerve
center”:
We conclude that “principal place of business” is best read as
referring to the place where a corporation’s officers direct,
control, and coordinate the corporation’s activities. It is the place
that Courts of Appeals have called the corporation’s “nerve
center.” And in practice it should normally be the place where
the corporation maintains its headquarters -- provided that
the headquarters is the actual center of direction, control,
and coordination, i.e., the “nerve center” ....
(2010) 559 U.S. 77, 92-93 (emphasis added).
Tesla is now, and was at the time of the filing of this action, a corporation organized
and formed under the laws of the State of Delaware, with its principal place of business
DEFENDANT TESLA, INC.’S NOTICE OF REMOVAL
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and headquarters in Austin, Texas.1 Therefore, at all times since Plaintiff commenced this
lawsuit, Tesla is and has been a citizen of a state other than California within the meaning
of 28 U.S.C. §1332(c)(1). At all relevant times, Tesla is and has been a citizen of the States
of Delaware and Texas.
3.
Doe Defendants Should Be Disregarded
Pursuant to 28 U.S.C. § 1441(a), the residence of fictitious and unknown defendants
should be disregarded for purposes of establishing removal jurisdiction under 28 U.S.C.
Tesla’s Form 10-K for the fiscal year ended December 21, 2021, which is a public document and publicly
accessible through the United States Securities and Exchange Commission’s website, lists Delaware as
Tesla’s State of Incorporation and 13101 Tesla Road, Austin, Texas as Tesla’s principal executive offices:
https://www.sec.gov/Archives/edgar/data/1318605/000095017022000796/tsla-20211231.htm.
DEFENDANT TESLA, INC.’S NOTICE OF REMOVAL
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requirement excludes only ‘interest and costs.’”); see also Galt G/S v. JSS Scandinavia (9th
Cir. 1998) 142 F.3d 1150, 1156 (claims for statutory attorneys’ fees to be included in
amount in controversy, regardless of whether such an award is discretionary or mandatory);
Davenport v. Mutual Benefit Health & Accident Ass’n. (9th Cir. 1963) 325 F.2d 785,
(punitive damages must be taken into account where recoverable under state law); Conrad
Assocs. v. Hartford Accident & Ind. Co. (N.D. Cal. 1998) 994 F. Supp. 1196,
(“amount in controversy” includes claims for general and special damages).
In the Complaint Plaintiff requests (1) past and future economic damages; (2) past
and future non-economic damages; (3) pre-judgement interest; (4) post-judgement interest;
(5) costs of suit and attorneys’ fees; and (6) punitive damages. Complaint at Prayer for
Relief, 13:22-14:6. In light of the expansive categories of damages sought by Plaintiff, the
amount in controversy in this action is more likely than not to exceed the $75,
jurisdictional minimum.
2.
General And Punitive Damages Exceed $75,
Although Tesla denies that it should be liable for any damages whatsoever in this
case, assuming arguendo for the purposes of removal that Plaintiff prevails, Plaintiff is
seeking an award of both general and punitive damages. Complaint at Prayer for Relief,
13:22-14:6. Plaintiff alleges he has “suffered general damages as he was psychologically
injured. Such injuries have caused, and continue to cause, Plaintiff great mental pain and
suffering in an amount in excess of this Court’s minimal jurisdiction.” Id. at ¶26. Plaintiff
also seeks to recover punitive damages. Requests for punitive damages must be taken into
account in ascertaining the amount in controversy. Davenport, 325 F.2d at 787. The amount
of punitive damages awarded is based on the financial worth of the defendant, and is meant
to punish the defendant in such a way that it will have a tangible financial consequence.
Without conceding that punitive damages are appropriate or applicable here, for a
defendant of Tesla’s size, it is probable that a punitive damages award, if assessed, would
exceed $75,000.00.
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3.
Verdicts In Cases With Similar Claims Exceed $75,
To establish the amount in controversy, a defendant may rely on jury verdicts in
cases involving similar facts. Simmons v. PCR Tech. (N.D. Cal. 2002) 209 F. Supp. 2d
1029, 1033; Kroske v. U.S. Bank Corp. (9th Cir. 2005) 432 F.3d 976, 980. California jury
verdicts in cases involving claims similar to Plaintiff’s often exceed $75,000. See, e.g., Ko
v. The Square Group LLC dba The Square Supermarket (June 16, 2014) Los Angeles Sup.
Ct., Case No. BC487739 ($190,712.36 verdict on plaintiff’s claims for discrimination,
retaliation, wrongful termination in violation of public policy, and wage and hour claims
and $500,000 in punitive damages); Kamali v. Cal. Dep’t of Transp. (Dec. 20, 2012) Los
Angeles Sup. Ct., Case No. BC426247 (verdict for $663,983 on plaintiff’s claims for
national origin and disability discrimination); Hernandez v. Regents of the Univ. of Cal.
(June 29, 2010) Alameda County Sup. Ct., Case No. RG06272564 (verdict for $266,
on disability discrimination, national origin discrimination, and retaliation claims).
Because Plaintiff’s allegations that he was discriminated against, retaliated against,
and wrongfully terminated based upon his alleged disability are similar to the claims and
issues raised in the cases cited above, these awards demonstrate that, for diversity purposes,
it is probable that any verdict in this matter in Plaintiff’s favor would award damages
exceeding $75,000.
4.
Attorneys’ Fees Exceed $75,
Plaintiff also seeks attorneys’ fees. Verdicts in comparable cases show that
attorneys’ fees typically exceed $75,000.00. See Denenberg v. Cal. Dep’t of Transp. (San
Diego County Sup. Ct. Sept. 14, 2006) 2007 WL 2827715 (attorney’s fees award of
$490,000.00 in case alleging discrimination, harassment, and retaliation); McMillan v. City
of Los Angeles (Los Angeles County Sup. Ct. March 21, 2005) 2005 WL 3729094, Case
No. BC298898 (attorney’s fees award of $504,926.00 in case alleging discrimination and
retaliation for filing lawsuit to redress discrimination); Gallegos v. Los Angeles City
College (Los Angeles County Sup. Ct. Oct. 16, 2003) (attorney’s fees award of
$159,277.00 for claim of discrimination and retaliation). Therefore, the inclusion of a claim
DEFENDANT TESLA, INC.’S NOTICE OF REMOVAL
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for attorneys’ fees also supports the conclusion that the amount in controversy in this matter
exceeds $75,000.00.
Consequently, because there is complete diversity of citizenship and the amount in
controversy clearly exceeds $75,000, this Court has jurisdiction over this action pursuant
to 28 U.S.C. §§1332(a) and 1441(b).
IV.
VENUE
Venue lies in the United States District Court for the Central District of California,
pursuant to 28 U.S.C. §§84(c)(2), 1441, and 1446. This action originally was brought in
the Superior Court of the State of California, Los Angeles County, which is located within
the Central District of California. Therefore, venue is proper because it is the “district and
division embracing the place where such action is pending.” 28 U.S.C. §1441(a).
V.
SERVICE OF NOTICE OF REMOVAL ON PLAINTIFF AND THE CLERK
OF THE SUPERIOR COURT
Pursuant to 28 U.S.C. §1446(d), written notice of the filing of this Notice of Removal
will be given promptly to Plaintiff and his counsel, and together with a copy of the Notice
of Removal, will be filed with the Clerk of the Superior Court of the State of California,
Los Angeles County.
VI.
PRAYER FOR REMOVAL
WHEREFORE, Tesla prays that this civil action be removed from the Superior
Court of the State of California, County of Los Angeles, to the United States District Court
for the Central District of California.
DATED: January 5,
Respectfully submitted,
TESLA, INC.
By: /s/ Kiran S. Lopez
Kiran S. Lopez
Attorney for Defendant TESLA, INC.
DEFENDANT TESLA, INC.’S NOTICE OF REMOVAL
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EXHIBIT
1Page 11 Case 2:23-cv-00062-MRW Document 1 Filed 01/05/Page 11 of 24 Page ID #:•
22STCV3390°Assigned for all purposes to: Stanley Mosk Courthouse, Judicial Officer: Armen Tamzarian
Electronically FIL
by Superior Court of California, County of Los Angeles on 10/19/2022 04:54 PM Sherri R. Carter, Executive Officer/Clerk of Court, by E. Galicia,Deputy Clerk
A. Jacob Nalbandyan, Esq. (SBN 272023)
jnalbandyan@LNtriallawyers.com
2 Charlene Nercess, Esq. (SBN 334943)
3 cnercess@LNtriallawyers.com
Levin & Nalbandyan,LLP
4 811 Wilshire Blvd, Suite Los Angeles, CA 5 Tel:(213)232-6 Fax:(213)232-
Attorneys for Plaintiff,
CRAIG NAKAYAMA
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
CRAIG NAKAYAMA,an individual,
Plaintiff,
Case No.:
22ST CV
COMPLAINT FOR DAMAGES
1. DISABILITY DISCRIMINATION IN
VIOLATION OF THE FAIR
EMPLOYMENT AND HOUSING ACT
2. FAILURE TO PROVIDE
REASONABLE ACCOMMODATIONS
IN VIOLATION OF THE FAIR
EMPLOYMENT AND HOUSING ACT
3. FAILURE TO ENGAGE IN A GOOD
FAITH INTERACTIVE PROCESS IN
VIOLATION OF THE FAIR
EMPLOYMENT AND HOUSING ACT
4. RETALIATION IN VIOLATION OF
THE FAIR EMPLOYMENT AND
HOUSING ACT
5. FAILURE TO PREVENT
DISCRIMINATION AND
RETALIATION IN VIOLATION OF
THE FAIR EMPLOYMENT AND
HOUSING ACT
6. WRONGFUL TERMINATION IN
VIOLATION OF PUBLIC POLICY
VS.
TESLA,INC., a Delaware Corporation, and
DOES 1 through 20, Inclusive,
Defendants.
Demand over $25,000.DEMAND FOR JURY TRIAL
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CRAIG NAKAYAMA ("Plaintiff') is informed and believes, and thereon alleges, the following:
I
PARTIES, VENUE AND JURISDICTION
1.
Plaintiff, at all times relevant to this action, resided in Culver City, California.
2.
Defendant TESLA,INC.("Defendant") is a Delaware corporation with its principal
place of business in Santa Monica, California.
3.
Plaintiff is informed and believes, and thereon alleges that Defendant is engaged in the
business of manufacturing and selling motor vehicles.
4.
The unlawful acts pleaded herein occurred in Los Angeles County, California.
5.
Venue is proper in Los Angeles County, California pursuant to California Government
Code § 12965.
6.
Plaintiff is unaware of the true names and capacities of DOES 1 through 20, inclusive,
and therefore sues these defendant by their fictitious name. Plaintiff will amend this Complaint to
allege their true names and capacities when ascertained.
7.
At all times relevant to this action, each of the fictitiously named defendants was an
employee, agent, servant, partner, member, shareholder, officer, director, co-conspirator, or alter ego
of Defendant, and was acting within the course and scope of such agency or employment.
8.
Each of the fictitiously named defendants is responsible in some manner for the
occurrences herein alleged, and such defendants directly and proximately caused Plaintiffs' injuries as
herein alleged.
9.
Pursuant to CAL. GOV'T CODE §§12960, et seq., Plaintiff filed a charge against
Defendants with the California Department of Fair Employment and Housing("DFEH")on September
19, 2022, less than one year from the date of most occurrence. On September 19, 2022,Plaintiff
received a Notice of Case Closure and Right to Sue Letter from the DFEH.
///
///
///
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FACTUAL ALLEGATIONS
10.
Complaint, as though fully set forth herein.
Plaintiff incorporates, by reference, all allegations in the above paragraphs of this
1 1.
Plaintiff began his employment with Defendant on or about July 5, 2016, as a senior
technician. Plaintiff's primary job duty was repairing cars.
12.
On or about September 25, 2020,Plaintiff suffered an injury to his right knee at work.
Plaintiff was placed on work restrictions of no bending, no squatting, no walking around uneven
ground, and no going up stairs.
1 3.
about December 8, 2021. Plaintiff continued to work during this time with modified duty.
14.
1 5.
1 6.
On or about May 15, 2022, Plaintiff's restrictions were lifted which resulted in Plaintiff
going back to work full duty.
On or about February 17, 2022, Plaintiff returned to work with the same restrictions as
the first time around.
Plaintiff had a knee injury on or about December 8, 2021, and was out on medical leave
until February 17, 2022.
Plaintiff had these work restrictions from on or about September 25, 2020, to on or
1 7.
On or about June 17, 2022, Plaintiff was pulled aside by his supervisor Amanda
Manning who told Plaintiff he was being terminated.
18.
Plaintiff was left embarrassed, ashamed, emotionally hurt, and in financial desperation
for having been terminated due to his disability, perceived disability, and/or history of disability and
for having been directly discriminated and retaliated against for his disability, perceived disability,
and/or history of disability and request/need for reasonable accommodation.
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///
///
///
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FIRST CAUSE OF ACTION
I
DISABILITY DISCRIMINATION IN VIOLATION OF
THE FAIR EMPLOYMENT AND HOUSING ACT
19.
Plaintiff incorporates, by reference, all allegations in the above paragraphs of this
Complaint, as though fully set forth herein.
20.
At all times relevant to this action, Plaintiff was employed by Defendant.
21.
At all times relevant to this action, Defendant was an employer who regularly
employed five or more persons within the meaning of CAL. GOV'T CODE §12926(d).
22.
At all times relevant to this action, Plaintiff was a member of a protected class within
the meaning of CAL. GOV'T CODE §§ 12940(a) and I2926(m) because of his disability, perceived
disability, and/or history of disability.
23.
At all times relevant to this action, Defendant unlawfully discriminated against Plaintiff
on the basis of his disability, perceived disability, and/or history of disability by terminating his
employment.
24.
Defendant was substantially motivated to terminate Plaintiff because of his disability,
perceived disability, and/or history of disability.
25.
As a direct and proximate result of Defendant's conduct, Plaintiff has suffered and
continues to suffer losses in earnings and other benefits and will for a period of time in the future be
unable to obtain gainful employment, as his ability to obtain such employment and earning capacity
have been diminished. The exact amount of such expenses and losses is presently unknown, and
Plaintiff will seek leave of court to amend this Complaint to set forth the exact amount when it is
ascertained.
26.
As a direct and proximate result of Defendant's conduct, Plaintiff suffered general
damages as he was psychologically injured. Such injuries have caused, and continue to cause, Plaintiff
great mental pain and suffering in an amount in excess of this Court's minimal jurisdiction.
///
///
///
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27.
As a direct and proximate result of Defendant's conduct, Plaintiff, for a period of time
in the future, will be required to employ physicians and incur additional medical and incidental
expenses. The exact amount of such expenses is presently unknown to Plaintiff and he will seek leave
of court to amend this Complaint to set forth the exact amount when it has been ascertained.
28.
Plaintiff is informed and believes, and thereon alleges that the employees, officers,
directors, and/or managing agents of Defendant acted with malice and oppression as their unlawful
acts were carried out with full knowledge ofthe extreme risk of injury involved and with willful and
conscious disregard for Plaintiff's rights. They also acted fraudulently, as they willfully concealed the
fact that Plaintiff's employment rights were being violated, with the intent to deprive him of
employment benefits. Accordingly, an award of punitive damages is warranted.
29.
Plaintiff is informed and believes, and thereon alleges that the actions of Defendant's
employees, officers, directors, and/or managing agents were undertaken with the prior approval,
consent, and authorization of Defendant and was subsequently authorized and ratified by them as well
LXN
—
by and through its officers, directors, and/or managing agents.
SECOND CAUSE OF ACTION
FAILURE TO PROVIDE REASONABLE ACCOMMODATIONS IN VIOLATION OF
1.
THE FAIR EMPLOYMENT AND HOUSING ACT
30.
Plaintiff incorporates, by reference, all allegations in the above paragraphs of this
Complaint, as though fully set forth herein.
31.
At all times relevant to this action, Plaintiff was employed by Defendant.
32.
At all times relevant to this action, Defendant was an employer who regularly
employed five or more persons within the meaning of CAL. GOV'T CODE §12926(d).
33.
At all times relevant to this action, Plaintiff was a member of a protected class within
the meaning of CAL. GOV'T CODE § 12926(m) because of his disability, perceived disability, and/or
history of disability.
34.
At all times relevant to this action, Defendant unlawfully failed to provide Plaintiff
reasonable accommodations, in violation of CAL. GOV'T CODE § 12940(m), despite the fact that it had
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actual and/or constructive knowledge of his disability, need for accommodations, and Plaintiff's actual
and/or constructive requests for accommodations.
35.
Defendant's failure to accommodate Plaintiff was substantially motivated by his
disability, perceived disability, and/or history of disability, as previously pled herein.
36.
As a direct and proximate result of Defendant's conduct, Plaintiff has suffered and
continues to suffer losses in earnings and other benefits and will for a period of time in the future be
unable to obtain gainful employment, as his ability to obtain such employment and earning capacity
have been diminished. The exact amount of such expenses and losses is presently unknown, and
Plaintiff will seek leave of court to amend this Complaint to set forth the exact amount when it is
ascertained.
37.
As a direct and proximate result of Defendant's conduct, Plaintiff suffered general
damages as he was psychologically injured. Such injuries have caused, and continue to cause, Plaintiff
great mental pain and suffering in an amount in excess of this Court's minimal jurisdiction.
"
38.
As a direct and proximate result of Defendant's conduct, Plaintiff, for a period of time
in the future, will be required to employ physicians and incur additional medical and incidental
expenses. The exact amount of such expenses is presently unknown to Plaintiff and he will seek leave
of court to amend this Complaint to set forth the exact amount when it has been ascertained.
39.
Plaintiff is informed and believes, and thereon alleges that the employees, officers,
directors, and/or managing agents of Defendant acted with malice and oppression as their unlawful
acts were carried out with full knowledge ofthe extreme risk of injury involved and with willful and
conscious disregard for Plaintiff's rights. They also acted fraudulently, as they willfully concealed the
fact that Plaintiff's employment rights were being violated, with the intent to deprive him of
employment benefits. Accordingly, an award of punitive damages is warranted.
40.
Plaintiff is informed and believes, and thereon alleges that the actions of Defendant's
employees, officers, directors, and/or managing agents were undertaken with the prior approval,
consent, and authorization of Defendant and were subsequently authorized and ratified by them as
well by and through its officers, directors, and/or managing agents.
///
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THIRD CAUSE OF ACTION
I
FAILURE TO ENGAGE IN A GOOD FAITH INTERACTIVE PROCESS IN VIOLATION OF
THE FAIR EMPLOYMENT AND HOUSING ACT
41.
Plaintiff incorporates, by reference, all allegations in the above paragraphs of this
Complaint, as though fully set forth herein.
42.
At all times relevant to this action, Plaintiff was employed by Defendant.
43.
At all times relevant to this action, Defendant was an employer who regularly
employed five or more persons within the meaning of CAL. GOV'T CODE §12926(d).
44.
At all times relevant to this action, Plaintiff was a member of a protected class within
the meaning of CAL. GOV'T CODE § 12926(m) because of his disability, perceived disability, and/or
history of disability.
45.
Defendant unlawfully failed to engage in a good-faith, interactive process with Plaintiff
to determine effective reasonable accommodations despite the fact that it had actual and/or
constructive knowledge of his disability, perceived disability, and/or history of disability, in violation
of CAL. GOV'T CODE §§ 12940(n) and 12926.1(e), as previously pled herein.
46.
Defendant's failure to engage in a good-faith interactive process with Plaintiff was
substantially motivated by his disability, perceived disability, and/or history of disability, as previously
pled herein.
47.
As a direct and proximate result of Defendant's conduct, Plaintiff has suffered and
continues to suffer losses in earnings and other benefits and will for a period of time in the future be
unable to obtain gainful employment, as his ability to obtain such employment and earning capacity
have been diminished. The exact amount of such expenses and losses is presently unknown, and
Plaintiff will seek leave of court to amend this Complaint to set forth the exact amount when it is
ascertained.
48.
As a direct and proximate result of Defendant's conduct, Plaintiff suffered general
damages as he was psychologically injured. Such injuries have caused, and continue to cause, Plaintiff
great mental pain and suffering in an amount in excess of this Court's minimal jurisdiction.
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49.
As a direct and proximate result of Defendant's conduct, Plaintiff, for a period of time
in the future, will be required to employ physicians and incur additional medical and incidental
expenses. The exact amount of such expenses is presently unknown to Plaintiff and he will seek leave
of court to amend this Complaint to set forth the exact amount when it has been ascertained.
50.
Plaintiff is informed and believes, and thereon alleges that the employees, officers,
directors, and/or managing agents of Defendant acted with malice and oppression as their unlawful
acts were carried out with full knowledge ofthe extreme risk of injury involved and with willful and
conscious disregard for Plaintiff's rights. They also acted fraudulently, as they willfully concealed the
fact that Plaintiff's employment rights were being violated, with the intent to deprive him of
employment benefits. Accordingly, an award of punitive damages is warranted.
51.
Plaintiff is informed and believes, and thereon alleges that the actions of Defendant's
employees, officers, directors, and/or managing agents were undertaken with the prior approval,
consent, and authorization of Defendant and was subsequently authorized and ratified by them as well
by and through its officers, directors, and/or managing agents.
*,
FOURTH CAUSE OF ACTION
RETALIATION IN VIOLATION OF THE FAIR EMPLOYMENT AND HOUSING ACT
52.
Plaintiff incorporates, by reference, all allegations in the above paragraphs of this
Complaint, as though fully set forth herein.
53.
At all times relevant to this action, Plaintiff was employed by Defendant.
54.
At all times relevant to this action, CAL. GOV'T CODE §12900 et seq. were in full force
and effect and were binding upon Defendant. These sections, inter alia, require Defendant to refrain
from discriminating and retaliating against any employee on the basis of a disability, perceived
disability, and/or history of disability, requests/need for accommodation, and opposition to conduct
related thereto.
55.
Defendant engaged in conduct that, taken as a whole, materially and adversely affected
the teems and conditions of Plaintiff's employment.
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56.
Plaintiff's assertion of his rights under CAL. GOV'T CODE §12900 et seq. was a
substantial motivating reason for Defendant's decision to retaliate against him. Defendant's conduct
was a substantial factor in causing harm to Plaintiff, as set forth herein.
57.
At all times relevant to this action, Defendant unlawfully retaliated against Plaintiff, in
violation of CAL. GOV'T CODE §§ 12940(h) and 12940(m)(2) by terminating his employment.
58.
Defendant's retaliatory termination of Plaintiff's employment was substantially
motivated by his disability, perceived disability, and/or history of disability, requests/need for
accommodation, and opposition to Defendant's conduct related thereto, as previously pled herein.
59.
As a direct and proximate result of Defendant's conduct, Plaintiff has suffered and
continues to suffer losses in earnings and other benefits and will for a period of time in the future be
unable to obtain gainful employment, as his ability to obtain such employment and earning capacity
have been diminished. The exact amount of such expenses and losses is presently unknown, and
Plaintiff will seek leave of court to amend this Complaint to set forth the exact amount when it is
ascertained.
60.
As a direct and proximate result of Defendant's conduct, Plaintiff suffered general
damages as he was psychologically injured. Such injuries have caused, and continue to cause, Plaintiff
great mental pain and suffering in an amount in excess of this Court's minimal jurisdiction.
61.
As a direct and proximate result of Defendant's conduct, Plaintiff, for a period of time
in the future, will be required to employ physicians and incur additional medical and incidental
expenses. The exact amount of such expenses is presently unknown to Plaintiff and he will seek leave
of court to amend this Complaint to set forth the exact amount when it has been ascertained.
62.
Plaintiff is informed and believes, and thereon alleges that the employees, officers,
directors, and/or managing agents of Defendant acted with malice and oppression as their unlawful
acts were carried out with full knowledge of the extreme risk of injury involved and with willful and
conscious disregard for Plaintiff's rights. They also acted fraudulently, as they willfully concealed the
fact that Plaintiff's employment rights were being violated, with the intent to deprive him of
employment benefits. Accordingly, an award of punitive damages is warranted.
///
L&N File #:
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63.
Plaintiff is informed and believes, and thereon alleges that the actions of Defendant's
employees, officers, directors, and/or managing agents were undertaken with the prior approval,
consent, and authorization of Defendant and was subsequently authorized and ratified by them as well
by and through its officers,.directors, and/or managing agents.
FIFTH CAUSE OF ACTION
FAILURE TO PREVENT DISCRIMINATION AND RETALIATION IN VIOLATION OF
THE FAIR EMPLOYMENT AND HOUSING ACT
64.
Plaintiff incorporates, by reference, all allegations in the above paragraphs of this
Complaint, as though fully set forth herein.
65.
At all times relevant to this action, Plaintiff was employed by Defendant.
66.
At all times relevant to this action, Defendant was an employer who regularly
employed five or more persons within the meaning of CAL. GOV'T CODE § 12926(d).
67.
At all times relevant to this action, Plaintiff was a member of a protected class within
the meaning of CAL. Gov'T CODE §§ 12940(a) and 12926(m) because of his disability, perceived
disability, and/or history of disability.
68.
At all times relevant to this action, Defendant unlawfully discriminated and retaliated
against Plaintiff, as previously alleged, on the basis of his disability, perceived disability, and/or
history of disability, requests/need for accommodation, and opposition to related conduct by
terminating his employment.
69.
Defendant was substantially motivated to terminate Plaintiff because of his disability,
perceived disability, and/or history of disability, requests/need for accommodation, and opposition to
related conduct, as previously pled herein.
70.
Defendant failed to take reasonable steps to prevent the unlawful discrimination and
retaliation during Plaintiff's employment, as previously pled, in violation of CAL. GOV'T CODE
§12940(k), even when management level employees of Defendant became aware of the discriminatory
and retaliatory conduct. Instead, Defendant terminated Plaintiff in bad faith.
///
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71.
As a direct and proximate result of Defendant's conduct, Plaintiff has suffered and
continues to suffer losses in earnings and other benefits and will for a period oftime in the future be
unable to obtain gainful employment, as his ability to obtain such employment and earning capacity
have been diminished. The exact amount of such expenses and losses is presently unknown, and
Plaintiff will seek leave of court to amend this Complaint to set forth the exact amount when it is
ascertained.
72.
As a direct and proximate result of Defendant's conduct, Plaintiff suffered general
damages as he was psychologically injured. Such injuries have caused, and continue to cause, Plaintiff
great mental pain and suffering in an amount in excess of this Court's minimal jurisdiction.
73.
As a direct and proximate result of Defendant's conduct, Plaintiff, for a period of time
in the future, will be required to employ physicians and incur additional medical and incidental
expenses. The exact amount of such expenses is presently unknown to Plaintiff and he will seek leave
of court to amend this Complaint to set forth the exact amount when it has been ascertained.
74.
Plaintiff is informed and believes, and thereon alleges that the employees, officers,
directors, and/or managing agents of Defendant acted with malice and oppression as their unlawful
acts were carried out with full knowledge of the extreme risk of injury involved and with willful and
conscious disregard for Plaintiff's rights. They also acted fraudulently, as they willfully concealed the
fact that Plaintiff's employment rights were being violated, with the intent to deprive him of
employment benefits. Accordingly, an award of punitive damages is warranted.
75.
Plaintiff is informed and believes, and thereon alleges that the actions of Defendant's
employees, officers, directors, and/or managing agents were undertaken with the prior approval,
consent, and authorization of Defendant and was subsequently authorized and ratified by them as well
by and through its officers, directors, and/or managing agents.
///
/1/
///
///
L&N File 4:
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SIXTH CAUSE OF ACTION
WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY
76.
Plaintiff incorporates, by reference, all allegations in the above paragraphs of this
Complaint, as though fully set forth herein.
77.
At all times relevant to this action, Plaintiff was employed by Defendant.
78.
At all times relevant to this action, CAL. GOV'T CODE §12900 et seq. were in full force
and effect and were binding upon Defendant. These sections, inter alia, require Defendant to refrain
from discriminating, retaliating against, or terminating any employee on the basis of a disability,-
perceived disability, and/or history of disability, request/need for accommodation, and opposition to
conduct related thereto.
79.
Defendant's conduct, as previously alleged, was in retaliation for Plaintiff's assertion of
rights under CAL. GOV'T CODE §§12900 et seq.
80.
Plaintiff's assertion of his rights under CAL. GOV'T CODE §§12900 et seq. was a
substantial motivating reason for Defendant's decision to discriminate, retaliate against, and terminate
Plaintiff. Defendant's conduct was a substantial factor in causing harm to Plaintiff as set forth herein.
81.
CAL. GOV'T CODE §§12900 et seq. evinces a policy that benefits society at large, was
well-established at the time of Plaintiff's discharge, and is substantial and fundamental.
82.
Defendant's wrongful termination of Plaintiffs employment was substantially
motivated by his disability, perceived disability, and/or history of disability, requests/need for
accommodation, and opposition to conduct related thereto.
83.
As a direct and proximate result of Defendant's conduct, Plaintiff has suffered and
continues to suffer losses in earnings and other benefits and will for a period of time in the future be
unable to obtain gainful employment, as his ability to obtain such employment and earning capacity
have been diminished. The exact amount of such expenses and losses is presently unknown, and
Plaintiff will seek leave of court to amend this Complaint to set forth the exact amount when it is
ascertained.
///
///
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84.
As a direct and proximate result of Defendant's conduct, Plaintiff suffered general
damages as he was psychologically injured. Such injuries have caused, and continue to cause, Plaintiff
great mental pain and suffering in an amount in excess of this Court's minimal jurisdiction.
85.
As a direct and proximate result of Defendant's conduct, Plaintiff, for a period of time
in the future, will be required to employ physicians and incur additional medical and incidental
expenses. The exact amount of such expenses is presently unknown to Plaintiff and he will seek leave
of court to amend this Complaint to set forth the exact amount when it has been ascertained.
86.
Plaintiff is informed and believes, and thereon alleges that the employees, officers,
directors, and/or managing agents of Defendant acted with malice and oppression as their unlawful
acts were carried out with full knowledge of the extreme risk of injury involved and with willful and
conscious disregard for Plaintiff's rights. They also acted fraudulently, as they willfully concealed the
fact that Plaintiff's employment rights were being violated, with the intent to deprive him of
employment benefits. Accordingly, an award of punitive damages is warranted.
87.
Plaintiff is informed and believes, and thereon alleges that the actions of Defendant's
employees, officers, directors, and/or managing agents were undertaken with the prior approval,
consent, and authorization of Defendant and was subsequently authorized and ratified by them as well
by and through its officers, directors, and/or managing agents.
PRAYER FOR RELIEF
WHEREFORE,Plaintiff CRAIG NAKAYAMA,prays for judgment against Defendant
TESLA,INC., and DOES 1 through 20, as follows:
1. Past and future economic and non-economic damages according to proof;
2. Pre-judgment interest, post-judgment interest, costs of suit and attorney's fees according to
proof;
3. Injunctive relief compelling Defendant to reinstate Plaintiff to his previous position,
prohibiting Defendant from engaging in similar unlawful conduct as complained of herein, and
ordering Defendant to establish effective preventive mechanisms to ensure that the conduct
complained of herein does not continue in the future;
IAN File #:
-13COMPLAINT FOR DAMAGESPage 24 Page ID #:
4. Declaratory relief that Defendant's conduct as complained of herein was a violation of
Plaintiff's rights;
5. Punitive damages; and
6. All other relief that the Court deems just and proper.
DEMAND FOR JURY TRIAL
Plaintiff demands a trial by jury on all claims as provided by California law.
Dated: October 19,
LEVIN & NALBANDVAN,LLP
By:
A. Jacob Nalbandyan, Esq.
Charlene Nercess, Esq.
Attorneys for Plaintiff,
CRAIG NAKAYAMA
L&N.File 4:
-14COMPLAINT FOR DAMAGES
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PlainSite Cover Page
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Case 2:23-cv-00062-MRW Document 1 Filed 01/05/23 Page 1 of 24 Page ID #:1
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KIRAN S. LOPEZ (SBN 252467)
Tesla, INC.
901 Page Avenue
Fremont, California 94538
Telephone: (510) 239-1413
kirlopez@tesla.com
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Attorney for Defendant
TESLA, INC.
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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CRAIG NAKAYAMA, an individual,
Plaintiff,
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v.
TESLA, INC., a Delaware corporation;
and DOES 1 through 20, inclusive,
Defendants.
Case No. 2:23-cv-00062
DEFENDANT TESLA, INC.’S
NOTICE OF REMOVAL
Los Angeles County Superior Court
Case No. 22STCV33909
Complaint Filed: October 19, 2022
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DEFENDANT TESLA, INC.’S NOTICE OF REMOVAL
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Case 2:23-cv-00062-MRW Document 1 Filed 01/05/23 Page 2 of 24 Page ID #:2
TABLE OF CONTENTS
1
2
I.
PROCEDURAL BACKGROUND IN STATE COURT.......................................... 1
3
II.
TIMELINESS OF REMOVAL ................................................................................ 2
4
III.
THIS COURT HAS DIVERSITY JURISDICTION OVER THIS CASE ............... 2
A.
5
There Is Complete Diversity Of Citizenship In This Case ............................. 2
6
1.
Plaintiff Is A Citizen Of California ...................................................... 2
7
2.
Tesla Is Not A Citizen Of California .................................................... 3
8
3.
Doe Defendants Should Be Disregarded .............................................. 4
B.
9
The Amount In Controversy Requirement Has Been Met ............................. 4
10
1.
Standard To Demonstrate Amount In Controversy .............................. 4
11
2.
General And Punitive Damages Exceed $75,000................................. 5
12
3.
Verdicts In Cases With Similar Claims Exceed $75,000 ..................... 6
13
4.
Attorneys' Fees Exceed $75,000 .......................................................... 6
14
IV.
VENUE ..................................................................................................................... 7
15
V.
SERVICE OF NOTICE OF REMOVAL ON PLAINTIFF AND THE
CLERK OF THE SUPERIOR COURT .................................................................... 7
VI.
PRAYER FOR REMOVAL ..................................................................................... 7
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20
21
22
23
24
25
26
27
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i
DEFENDANT TESLA, INC.’S NOTICE OF REMOVAL
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Case 2:23-cv-00062-MRW Document 1 Filed 01/05/23 Page 3 of 24 Page ID #:3
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TO THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT
2
OF CALIFORNIA AND TO PLAINTIFF AND HIS COUNSEL OF RECORD:
3
PLEASE TAKE NOTICE THAT Defendant Tesla, Inc. (“Tesla” or “Defendant”)
4
hereby removes the above-referenced action from the Superior Court of the State of
5
California for the County of Los Angeles, to the United States District Court for the Central
6
District of California. This removal is made pursuant to 28 U.S.C. §§1441 and 1446,
7
asserting diversity jurisdiction under 18 U.S.C. §1332, codified in relevant part at 28
8
U.S.C. §1332. Tesla states that removal is proper for the following reasons.
9
I.
PROCEDURAL BACKGROUND IN STATE COURT
10
On October 19, 2022, Plaintiff Craig Nakayama (“Plaintiff”) filed a Complaint
11
entitled, “CRAIG NAKAYAMA, Plaintiff v. TESLA, INC., a Delaware corporation; and
12
DOES 1 through 20, inclusive, Defendants,” Los Angeles County Superior Court Case No.
13
22STCV33909 (the “Complaint”). The Complaint alleged six causes of action for: (1)
14
Disability Discrimination in Violation of the Fair Employment and Housing Act
15
(“FEHA”); (2) Failure to Provide Reasonable Accommodations in Violation of FEHA; (3)
16
Failure to Engage in a Good Faith Interactive Process in Violation of FEHA; (4) Retaliation
17
in Violation of FEHA; (5) Failure to Prevent Discrimination and Retaliation in Violation
18
of FEHA; and (6) Wrongful Termination in Violation of Public Policy. A true and correct
19
copy of the Complaint is attached hereto as Exhibit 1.
20
On December 7, 2022 Tesla was served with copies of the Summons, Complaint,
21
Civil Case Cover Sheet, and attendant documents through its agent for service of process,
22
CT Corporation, in Glendale, California. See concurrently filed Declaration of Kiran S.
23
Lopez (“Lopez Decl.”) at ¶2 and Exhibit A (service package).
24
Exhibit 1 attached hereto and Exhibit A to the concurrently filed Lopez Declaration
25
constitute all of the pleadings served on Tesla and/or filed by Tesla in the Los Angeles
26
County Superior Court prior to filing of this Notice of Removal. Lopez Decl. at ¶4. A Case
27
Management Conference has been scheduled for February 16, 2023. Id.
28
1
DEFENDANT TESLA, INC.’S NOTICE OF REMOVAL
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1
II.
TIMELINESS OF REMOVAL
2
This Notice of Removal is timely filed as it is filed less than one year from the date
3
this action was commenced and within 30 days of service of the Complaint on Tesla, the
4
moving Defendant. 28 U.S.C. §1446(b); Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc.
5
(1999) 119 S. Ct. 1322, 1325 (thirty-day deadline to remove commences upon service of
6
the summons and complaint).
7
III.
THIS COURT HAS DIVERSITY JURISDICTION OVER THIS CASE
8
Subject matter jurisdiction on the basis of diversity of citizenship requires that: (1)
9
there is complete diversity of citizenship between plaintiff and defendants; and (2) “the
10
matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.”
11
28 U.S.C. §1332. A Notice of Removal is sufficient “if it alleges that the parties are of
12
diverse citizenship and that the matter in controversy exceeds, exclusive of interest and
13
costs, the sum specified by 28 U.S.C. §1332 …” Ellenburg v. Spartan Motos Chassis, Inc.
14
(4th Cir. 2008) 519 F.3d 192, 200 (internal quotes and brackets omitted).
15
A.
16
The complete diversity requirement merely means that all plaintiffs must be of
17
different citizenship than all defendants, and any instance of common citizenship “deprives
18
the district court of original diversity jurisdiction over the entire action.” Exxon Mobil
19
Corp. v. Allapattah Servs., Inc. (2005) 545 U.S. 546, 553. A party’s citizenship is
20
determined at the time the lawsuit was filed. In re Digimarc Corp. Derivative Litig. (9th
21
Cir. 2008) 549 F.3d 1223, 1236 (“[T]he jurisdiction of the court depends upon the state of
22
things at the time of the action [was] brought.”). In the present case, the parties had
23
complete diversity of citizenship at the time the lawsuit was filed because Plaintiff’s
24
citizenship is diverse from Tesla’s.
25
There Is Complete Diversity Of Citizenship In This Case
1.
Plaintiff Is A Citizen Of California
26
For diversity purposes, a person is a “citizen” of the state in which he or she is
27
domiciled. Kantor v. Wellesley Galleries, Ltd. (9th Cir. 1983) 704 F.2d 1088, 1090 (“To
28
show state citizenship for diversity purposes under federal common law a party must . . .
2
DEFENDANT TESLA, INC.’S NOTICE OF REMOVAL
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1
be domiciled in the state.”). A person’s domicile is the place he resides with the intent to
2
remain indefinitely. Kanter v. Warner-Lambert Co. (9th Cir. 2001) 265 F.3d 853, 857 (“A
3
person’s domicile is her permanent home, where she resides with the intention to remain
4
or to which she intends to return.”). Residence is prima facie evidence of domicile. State
5
Farm Mut. Auto Ins. Co. v. Dyer (10th Cir. 1994) 19 F.3d 514, 520 (“the place of residence
6
is prima facie the domicile”).
7
Plaintiff alleges that he, “at all time relevant to this action, resided in Culver City,
8
California.” Complaint at ¶1. Therefore, Tesla is informed and believes that at all relevant
9
times for the purposes of this removal, Plaintiff is and has been a citizen of the State of
10
California.
11
2.
Tesla Is Not A Citizen Of California
12
For the purposes of diversity jurisdiction, “a corporation shall be deemed to be a
13
citizen of any State by which it has been incorporated and of the State where it has its
14
principal place of business.” 28 U.S.C. §1332(c)(1); see also Davis v. HSBC Bank Nevada,
15
N.A. (9th Cir. 2009) 557 F.3d 1026, 1028 (citing 28 U.S.C. § 1332(c)(1)).
16
The Supreme Court of the United States in The Hertz Corp. v. Friend held that a
17
corporate entity’s “principal place of business” for determining its citizenship is its “nerve
18
center”:
We conclude that “principal place of business” is best read as
referring to the place where a corporation’s officers direct,
control, and coordinate the corporation’s activities. It is the place
that Courts of Appeals have called the corporation’s “nerve
center.” And in practice it should normally be the place where
the corporation maintains its headquarters -- provided that
the headquarters is the actual center of direction, control,
and coordination, i.e., the “nerve center” ....
19
20
21
22
23
24
25
(2010) 559 U.S. 77, 92-93 (emphasis added).
26
Tesla is now, and was at the time of the filing of this action, a corporation organized
27
and formed under the laws of the State of Delaware, with its principal place of business
28
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DEFENDANT TESLA, INC.’S NOTICE OF REMOVAL
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1
and headquarters in Austin, Texas.1 Therefore, at all times since Plaintiff commenced this
2
lawsuit, Tesla is and has been a citizen of a state other than California within the meaning
3
of 28 U.S.C. §1332(c)(1). At all relevant times, Tesla is and has been a citizen of the States
4
of Delaware and Texas.
3.
5
Doe Defendants Should Be Disregarded
6
Pursuant to 28 U.S.C. § 1441(a), the residence of fictitious and unknown defendants
7
should be disregarded for purposes of establishing removal jurisdiction under 28 U.S.C.
8
§133; Fristos v. Reynolds Metals Co. (9th Cir. 1980) 615 F.2d 1209, 1213 (unnamed
9
defendants are not required to join in a removal petition). Thus, the existence of Doe
10
defendants in this case does not deprive this Court of jurisdiction. Accordingly, pursuant
11
to 28 U.S.C. §1332(c), Plaintiff and the real Defendant, Tesla, have diverse citizenship.
B.
12
13
The Amount In Controversy Requirement Has Been Met
1.
Standard To Demonstrate Amount In Controversy
14
While Tesla denies any liability as to Plaintiff’s claims, the amount in controversy
15
requirement is satisfied because “it is more likely than not” that the amount exceeds the
16
jurisdictional minimum of $75,000. See Sanchez v. Monumental Life Ins. (9th Cir. 1996)
17
102 F.3d 398, 403-404) (“the defendant must provide evidence establishing that it is ‘more
18
likely than not’ that the amount in controversy exceeds [the threshold] amount.”) (internal
19
citation omitted). As explained by the Ninth Circuit, “the amount-in-controversy inquiry
20
in the removal context is not confined to the face of the complaint.” Valdez v. Allstate Ins.
21
Co. (9th Cir. 2004) 372 F.3d 1115, 1117 (finding that the Court may consider facts
22
presented in the removal petition). In determining the amount in controversy, the Court
23
must consider the aggregate of general damages, special damages, compensatory damages,
24
punitive damages and attorneys’ fees where recoverable by law. See Guglielmino v. McKee
25
Foods Corp. (9th Cir. 2007) 506 F.3d 696, 700 (“Section 1332(a)’s amount-in-controversy
26
27
28
1
Tesla’s Form 10-K for the fiscal year ended December 21, 2021, which is a public document and publicly
accessible through the United States Securities and Exchange Commission’s website, lists Delaware as
Tesla’s State of Incorporation and 13101 Tesla Road, Austin, Texas as Tesla’s principal executive offices:
https://www.sec.gov/Archives/edgar/data/1318605/000095017022000796/tsla-20211231.htm.
4
DEFENDANT TESLA, INC.’S NOTICE OF REMOVAL
1
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1
requirement excludes only ‘interest and costs.’”); see also Galt G/S v. JSS Scandinavia (9th
2
Cir. 1998) 142 F.3d 1150, 1156 (claims for statutory attorneys’ fees to be included in
3
amount in controversy, regardless of whether such an award is discretionary or mandatory);
4
Davenport v. Mutual Benefit Health & Accident Ass’n. (9th Cir. 1963) 325 F.2d 785, 787
5
(punitive damages must be taken into account where recoverable under state law); Conrad
6
Assocs. v. Hartford Accident & Ind. Co. (N.D. Cal. 1998) 994 F. Supp. 1196, 1198
7
(“amount in controversy” includes claims for general and special damages).
8
In the Complaint Plaintiff requests (1) past and future economic damages; (2) past
9
and future non-economic damages; (3) pre-judgement interest; (4) post-judgement interest;
10
(5) costs of suit and attorneys’ fees; and (6) punitive damages. Complaint at Prayer for
11
Relief, 13:22-14:6. In light of the expansive categories of damages sought by Plaintiff, the
12
amount in controversy in this action is more likely than not to exceed the $75,000
13
jurisdictional minimum.
14
2.
General And Punitive Damages Exceed $75,000
15
Although Tesla denies that it should be liable for any damages whatsoever in this
16
case, assuming arguendo for the purposes of removal that Plaintiff prevails, Plaintiff is
17
seeking an award of both general and punitive damages. Complaint at Prayer for Relief,
18
13:22-14:6. Plaintiff alleges he has “suffered general damages as he was psychologically
19
injured. Such injuries have caused, and continue to cause, Plaintiff great mental pain and
20
suffering in an amount in excess of this Court’s minimal jurisdiction.” Id. at ¶26. Plaintiff
21
also seeks to recover punitive damages. Requests for punitive damages must be taken into
22
account in ascertaining the amount in controversy. Davenport, 325 F.2d at 787. The amount
23
of punitive damages awarded is based on the financial worth of the defendant, and is meant
24
to punish the defendant in such a way that it will have a tangible financial consequence.
25
Without conceding that punitive damages are appropriate or applicable here, for a
26
defendant of Tesla’s size, it is probable that a punitive damages award, if assessed, would
27
exceed $75,000.00.
28
5
DEFENDANT TESLA, INC.’S NOTICE OF REMOVAL
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3.
1
Verdicts In Cases With Similar Claims Exceed $75,000
2
To establish the amount in controversy, a defendant may rely on jury verdicts in
3
cases involving similar facts. Simmons v. PCR Tech. (N.D. Cal. 2002) 209 F. Supp. 2d
4
1029, 1033; Kroske v. U.S. Bank Corp. (9th Cir. 2005) 432 F.3d 976, 980. California jury
5
verdicts in cases involving claims similar to Plaintiff’s often exceed $75,000. See, e.g., Ko
6
v. The Square Group LLC dba The Square Supermarket (June 16, 2014) Los Angeles Sup.
7
Ct., Case No. BC487739 ($190,712.36 verdict on plaintiff’s claims for discrimination,
8
retaliation, wrongful termination in violation of public policy, and wage and hour claims
9
and $500,000 in punitive damages); Kamali v. Cal. Dep’t of Transp. (Dec. 20, 2012) Los
10
Angeles Sup. Ct., Case No. BC426247 (verdict for $663,983 on plaintiff’s claims for
11
national origin and disability discrimination); Hernandez v. Regents of the Univ. of Cal.
12
(June 29, 2010) Alameda County Sup. Ct., Case No. RG06272564 (verdict for $266,347
13
on disability discrimination, national origin discrimination, and retaliation claims).
14
Because Plaintiff’s allegations that he was discriminated against, retaliated against,
15
and wrongfully terminated based upon his alleged disability are similar to the claims and
16
issues raised in the cases cited above, these awards demonstrate that, for diversity purposes,
17
it is probable that any verdict in this matter in Plaintiff’s favor would award damages
18
exceeding $75,000.
19
4.
Attorneys’ Fees Exceed $75,000
20
Plaintiff also seeks attorneys’ fees. Verdicts in comparable cases show that
21
attorneys’ fees typically exceed $75,000.00. See Denenberg v. Cal. Dep’t of Transp. (San
22
Diego County Sup. Ct. Sept. 14, 2006) 2007 WL 2827715 (attorney’s fees award of
23
$490,000.00 in case alleging discrimination, harassment, and retaliation); McMillan v. City
24
of Los Angeles (Los Angeles County Sup. Ct. March 21, 2005) 2005 WL 3729094, Case
25
No. BC298898 (attorney’s fees award of $504,926.00 in case alleging discrimination and
26
retaliation for filing lawsuit to redress discrimination); Gallegos v. Los Angeles City
27
College (Los Angeles County Sup. Ct. Oct. 16, 2003) (attorney’s fees award of
28
$159,277.00 for claim of discrimination and retaliation). Therefore, the inclusion of a claim
6
DEFENDANT TESLA, INC.’S NOTICE OF REMOVAL
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1
for attorneys’ fees also supports the conclusion that the amount in controversy in this matter
2
exceeds $75,000.00.
3
Consequently, because there is complete diversity of citizenship and the amount in
4
controversy clearly exceeds $75,000, this Court has jurisdiction over this action pursuant
5
to 28 U.S.C. §§1332(a) and 1441(b).
6
IV.
VENUE
7
Venue lies in the United States District Court for the Central District of California,
8
pursuant to 28 U.S.C. §§84(c)(2), 1441, and 1446. This action originally was brought in
9
the Superior Court of the State of California, Los Angeles County, which is located within
10
the Central District of California. Therefore, venue is proper because it is the “district and
11
division embracing the place where such action is pending.” 28 U.S.C. §1441(a).
12
V.
SERVICE OF NOTICE OF REMOVAL ON PLAINTIFF AND THE CLERK
13
OF THE SUPERIOR COURT
14
Pursuant to 28 U.S.C. §1446(d), written notice of the filing of this Notice of Removal
15
will be given promptly to Plaintiff and his counsel, and together with a copy of the Notice
16
of Removal, will be filed with the Clerk of the Superior Court of the State of California,
17
Los Angeles County.
18
VI.
PRAYER FOR REMOVAL
19
WHEREFORE, Tesla prays that this civil action be removed from the Superior
20
Court of the State of California, County of Los Angeles, to the United States District Court
21
for the Central District of California.
22
DATED: January 5, 2023
Respectfully submitted,
23
TESLA, INC.
24
By: /s/ Kiran S. Lopez
Kiran S. Lopez
Attorney for Defendant TESLA, INC.
25
26
27
28
7
DEFENDANT TESLA, INC.’S NOTICE OF REMOVAL
1
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EXHIBIT
1
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Case 2:23-cv-00062-MRW Document 1 Filed 01/05/23
Page 11 of 24 Page ID #:11
•
22STCV3390°9
Assigned for all purposes to: Stanley Mosk Courthouse, Judicial Officer: Armen Tamzarian
Electronically FIL
by Superior Court of California, County of Los Angeles on 10/19/2022 04:54 PM Sherri R. Carter, Executive Officer/Clerk of Court, by E. Galicia,Deputy Clerk
A. Jacob Nalbandyan, Esq. (SBN 272023)
jnalbandyan@LNtriallawyers.com
2 Charlene Nercess, Esq. (SBN 334943)
3 cnercess@LNtriallawyers.com
Levin & Nalbandyan,LLP
4 811 Wilshire Blvd, Suite 800
Los Angeles, CA 90017
5 Tel:(213)232-4848
6 Fax:(213)232-4849
7
8
Attorneys for Plaintiff,
CRAIG NAKAYAMA
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
11
12
CRAIG NAKAYAMA,an individual,
13
Plaintiff,
Case No.:
22ST CV 33909
COMPLAINT FOR DAMAGES
14
15
1. DISABILITY DISCRIMINATION IN
VIOLATION OF THE FAIR
EMPLOYMENT AND HOUSING ACT
2. FAILURE TO PROVIDE
REASONABLE ACCOMMODATIONS
IN VIOLATION OF THE FAIR
EMPLOYMENT AND HOUSING ACT
3. FAILURE TO ENGAGE IN A GOOD
FAITH INTERACTIVE PROCESS IN
VIOLATION OF THE FAIR
EMPLOYMENT AND HOUSING ACT
4. RETALIATION IN VIOLATION OF
THE FAIR EMPLOYMENT AND
HOUSING ACT
5. FAILURE TO PREVENT
DISCRIMINATION AND
RETALIATION IN VIOLATION OF
THE FAIR EMPLOYMENT AND
HOUSING ACT
6. WRONGFUL TERMINATION IN
VIOLATION OF PUBLIC POLICY
VS.
16
17
18
TESLA,INC., a Delaware Corporation, and
DOES 1 through 20, Inclusive,
Defendants.
19
20
21
22
23
24
25
26
27
28
Demand over $25,000.00
DEMAND FOR JURY TRIAL
L&N File 4: 7460
-1COMPLAINT FOR DAMAGES
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CRAIG NAKAYAMA ("Plaintiff') is informed and believes, and thereon alleges, the following:
I
2
PARTIES, VENUE AND JURISDICTION
3
4
1.
Plaintiff, at all times relevant to this action, resided in Culver City, California.
5
2.
Defendant TESLA,INC.("Defendant") is a Delaware corporation with its principal
6
place of business in Santa Monica, California.
7
8
3.
Plaintiff is informed and believes, and thereon alleges that Defendant is engaged in the
business of manufacturing and selling motor vehicles.
9
4.
The unlawful acts pleaded herein occurred in Los Angeles County, California.
10
5.
Venue is proper in Los Angeles County, California pursuant to California Government
11
Code § 12965.
12
6.
Plaintiff is unaware of the true names and capacities of DOES 1 through 20, inclusive,
13
and therefore sues these defendant by their fictitious name. Plaintiff will amend this Complaint to
14
allege their true names and capacities when ascertained.
15
7.
At all times relevant to this action, each of the fictitiously named defendants was an
16
employee, agent, servant, partner, member, shareholder, officer, director, co-conspirator, or alter ego
17
of Defendant, and was acting within the course and scope of such agency or employment.
18
8.
Each of the fictitiously named defendants is responsible in some manner for the
19
occurrences herein alleged, and such defendants directly and proximately caused Plaintiffs' injuries as
20
herein alleged.
21
9.
Pursuant to CAL. GOV'T CODE §§12960, et seq., Plaintiff filed a charge against
22
Defendants with the California Department of Fair Employment and Housing("DFEH")on September
23
19, 2022, less than one year from the date of most occurrence. On September 19, 2022,Plaintiff
24
received a Notice of Case Closure and Right to Sue Letter from the DFEH.
25
///
26
///
27
///
28
///
IAN File
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-2COMPLAINT FOR DAMAGES
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FACTUAL ALLEGATIONS
1
10.
2
3
Complaint, as though fully set forth herein.
4
5
Plaintiff incorporates, by reference, all allegations in the above paragraphs of this
1 1.
Plaintiff began his employment with Defendant on or about July 5, 2016, as a senior
technician. Plaintiff's primary job duty was repairing cars.
6
12.
On or about September 25, 2020,Plaintiff suffered an injury to his right knee at work.
7
Plaintiff was placed on work restrictions of no bending, no squatting, no walking around uneven
8
ground, and no going up stairs.
9
10
1 3.
about December 8, 2021. Plaintiff continued to work during this time with modified duty.
14.
11
12
1 5.
1 6.
On or about May 15, 2022, Plaintiff's restrictions were lifted which resulted in Plaintiff
going back to work full duty.
17
18
On or about February 17, 2022, Plaintiff returned to work with the same restrictions as
the first time around.
15
16
Plaintiff had a knee injury on or about December 8, 2021, and was out on medical leave
until February 17, 2022.
13
14
Plaintiff had these work restrictions from on or about September 25, 2020, to on or
1 7.
On or about June 17, 2022, Plaintiff was pulled aside by his supervisor Amanda
Manning who told Plaintiff he was being terminated.
19
18.
Plaintiff was left embarrassed, ashamed, emotionally hurt, and in financial desperation
20
for having been terminated due to his disability, perceived disability, and/or history of disability and
21
for having been directly discriminated and retaliated against for his disability, perceived disability,
22
and/or history of disability and request/need for reasonable accommodation.
23
///
24
///
25
///
26
///
27
///
28
///
LAN File #: 7460
-3COMPLAINT FOR DAMAGES
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FIRST CAUSE OF ACTION
I
2
DISABILITY DISCRIMINATION IN VIOLATION OF
3
THE FAIR EMPLOYMENT AND HOUSING ACT
4
5
19.
Plaintiff incorporates, by reference, all allegations in the above paragraphs of this
Complaint, as though fully set forth herein.
6
20.
At all times relevant to this action, Plaintiff was employed by Defendant.
7
21.
At all times relevant to this action, Defendant was an employer who regularly
8
employed five or more persons within the meaning of CAL. GOV'T CODE §12926(d).
22.
9
At all times relevant to this action, Plaintiff was a member of a protected class within
10
the meaning of CAL. GOV'T CODE §§ 12940(a) and I2926(m) because of his disability, perceived
11
disability, and/or history of disability.
12
13
23.
At all times relevant to this action, Defendant unlawfully discriminated against Plaintiff
on the basis of his disability, perceived disability, and/or history of disability by terminating his
employment.
15
16
24.
Defendant was substantially motivated to terminate Plaintiff because of his disability,
perceived disability, and/or history of disability.
17
25.
As a direct and proximate result of Defendant's conduct, Plaintiff has suffered and
18
continues to suffer losses in earnings and other benefits and will for a period of time in the future be
19
unable to obtain gainful employment, as his ability to obtain such employment and earning capacity
20
have been diminished. The exact amount of such expenses and losses is presently unknown, and
21
Plaintiff will seek leave of court to amend this Complaint to set forth the exact amount when it is
22
ascertained.
26.
23
As a direct and proximate result of Defendant's conduct, Plaintiff suffered general
24
damages as he was psychologically injured. Such injuries have caused, and continue to cause, Plaintiff
25
great mental pain and suffering in an amount in excess of this Court's minimal jurisdiction.
26
///
27
///
28
///
L&N File #: 7460
-4COMPLAINT FOR DAMAGES
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1
27.
As a direct and proximate result of Defendant's conduct, Plaintiff, for a period of time
2
in the future, will be required to employ physicians and incur additional medical and incidental
3
expenses. The exact amount of such expenses is presently unknown to Plaintiff and he will seek leave
4
of court to amend this Complaint to set forth the exact amount when it has been ascertained.
5
28.
Plaintiff is informed and believes, and thereon alleges that the employees, officers,
6
directors, and/or managing agents of Defendant acted with malice and oppression as their unlawful
7
acts were carried out with full knowledge ofthe extreme risk of injury involved and with willful and
8
conscious disregard for Plaintiff's rights. They also acted fraudulently, as they willfully concealed the
9
fact that Plaintiff's employment rights were being violated, with the intent to deprive him of
10
11
employment benefits. Accordingly, an award of punitive damages is warranted.
29.
Plaintiff is informed and believes, and thereon alleges that the actions of Defendant's
12
employees, officers, directors, and/or managing agents were undertaken with the prior approval,
13
consent, and authorization of Defendant and was subsequently authorized and ratified by them as well
14
LXN
—15
by and through its officers, directors, and/or managing agents.
16
SECOND CAUSE OF ACTION
17
FAILURE TO PROVIDE REASONABLE ACCOMMODATIONS IN VIOLATION OF
1.8
THE FAIR EMPLOYMENT AND HOUSING ACT
19
20
30.
Plaintiff incorporates, by reference, all allegations in the above paragraphs of this
Complaint, as though fully set forth herein.
21
31.
At all times relevant to this action, Plaintiff was employed by Defendant.
22
32.
At all times relevant to this action, Defendant was an employer who regularly
23
24
employed five or more persons within the meaning of CAL. GOV'T CODE §12926(d).
33.
At all times relevant to this action, Plaintiff was a member of a protected class within
25
the meaning of CAL. GOV'T CODE § 12926(m) because of his disability, perceived disability, and/or
26
history of disability.
27
28
34.
At all times relevant to this action, Defendant unlawfully failed to provide Plaintiff
reasonable accommodations, in violation of CAL. GOV'T CODE § 12940(m), despite the fact that it had
I..&N File 4: 7460
-5COMPLAINT FOR DAMAGES
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1
actual and/or constructive knowledge of his disability, need for accommodations, and Plaintiff's actual
2
and/or constructive requests for accommodations.
3
4
35.
Defendant's failure to accommodate Plaintiff was substantially motivated by his
disability, perceived disability, and/or history of disability, as previously pled herein.
36.
5
As a direct and proximate result of Defendant's conduct, Plaintiff has suffered and
6
continues to suffer losses in earnings and other benefits and will for a period of time in the future be
7
unable to obtain gainful employment, as his ability to obtain such employment and earning capacity
8
have been diminished. The exact amount of such expenses and losses is presently unknown, and
9
Plaintiff will seek leave of court to amend this Complaint to set forth the exact amount when it is
10
ascertained.
11
37.
As a direct and proximate result of Defendant's conduct, Plaintiff suffered general
12
damages as he was psychologically injured. Such injuries have caused, and continue to cause, Plaintiff
13
great mental pain and suffering in an amount in excess of this Court's minimal jurisdiction.
14
" 15
38.
As a direct and proximate result of Defendant's conduct, Plaintiff, for a period of time
in the future, will be required to employ physicians and incur additional medical and incidental
16
expenses. The exact amount of such expenses is presently unknown to Plaintiff and he will seek leave
17
of court to amend this Complaint to set forth the exact amount when it has been ascertained.
18
39.
Plaintiff is informed and believes, and thereon alleges that the employees, officers,
19
directors, and/or managing agents of Defendant acted with malice and oppression as their unlawful
20
acts were carried out with full knowledge ofthe extreme risk of injury involved and with willful and
21
conscious disregard for Plaintiff's rights. They also acted fraudulently, as they willfully concealed the
22
fact that Plaintiff's employment rights were being violated, with the intent to deprive him of
23
employment benefits. Accordingly, an award of punitive damages is warranted.
40.
24
Plaintiff is informed and believes, and thereon alleges that the actions of Defendant's
25
employees, officers, directors, and/or managing agents were undertaken with the prior approval,
26
consent, and authorization of Defendant and were subsequently authorized and ratified by them as
27
well by and through its officers, directors, and/or managing agents.
28
///
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-6COMPLAINT FOR DAMAGES
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THIRD CAUSE OF ACTION
I
2
FAILURE TO ENGAGE IN A GOOD FAITH INTERACTIVE PROCESS IN VIOLATION OF
3
THE FAIR EMPLOYMENT AND HOUSING ACT
4
5
41.
Plaintiff incorporates, by reference, all allegations in the above paragraphs of this
Complaint, as though fully set forth herein.
6
42.
At all times relevant to this action, Plaintiff was employed by Defendant.
7
43.
At all times relevant to this action, Defendant was an employer who regularly
8
9
employed five or more persons within the meaning of CAL. GOV'T CODE §12926(d).
44.
At all times relevant to this action, Plaintiff was a member of a protected class within
10
the meaning of CAL. GOV'T CODE § 12926(m) because of his disability, perceived disability, and/or
11
history of disability.
12
45.
Defendant unlawfully failed to engage in a good-faith, interactive process with Plaintiff
13
to determine effective reasonable accommodations despite the fact that it had actual and/or
14
constructive knowledge of his disability, perceived disability, and/or history of disability, in violation
15
of CAL. GOV'T CODE §§ 12940(n) and 12926.1(e), as previously pled herein.
16
46.
Defendant's failure to engage in a good-faith interactive process with Plaintiff was
17
substantially motivated by his disability, perceived disability, and/or history of disability, as previously
18
pled herein.
19
47.
As a direct and proximate result of Defendant's conduct, Plaintiff has suffered and
20
continues to suffer losses in earnings and other benefits and will for a period of time in the future be
21
unable to obtain gainful employment, as his ability to obtain such employment and earning capacity
22
have been diminished. The exact amount of such expenses and losses is presently unknown, and
23
Plaintiff will seek leave of court to amend this Complaint to set forth the exact amount when it is
24
ascertained.
25
48.
As a direct and proximate result of Defendant's conduct, Plaintiff suffered general
26
damages as he was psychologically injured. Such injuries have caused, and continue to cause, Plaintiff
27
great mental pain and suffering in an amount in excess of this Court's minimal jurisdiction.
28
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-7COMPLAINT FOR DAMAGES
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1
49.
As a direct and proximate result of Defendant's conduct, Plaintiff, for a period of time
2
in the future, will be required to employ physicians and incur additional medical and incidental
3
expenses. The exact amount of such expenses is presently unknown to Plaintiff and he will seek leave
4
of court to amend this Complaint to set forth the exact amount when it has been ascertained.
5
50.
Plaintiff is informed and believes, and thereon alleges that the employees, officers,
6
directors, and/or managing agents of Defendant acted with malice and oppression as their unlawful
7
acts were carried out with full knowledge ofthe extreme risk of injury involved and with willful and
8
conscious disregard for Plaintiff's rights. They also acted fraudulently, as they willfully concealed the
9
fact that Plaintiff's employment rights were being violated, with the intent to deprive him of
10
employment benefits. Accordingly, an award of punitive damages is warranted.
11
51.
Plaintiff is informed and believes, and thereon alleges that the actions of Defendant's
12
employees, officers, directors, and/or managing agents were undertaken with the prior approval,
13
consent, and authorization of Defendant and was subsequently authorized and ratified by them as well
14
by and through its officers, directors, and/or managing agents.
*, 15
16
FOURTH CAUSE OF ACTION
17
RETALIATION IN VIOLATION OF THE FAIR EMPLOYMENT AND HOUSING ACT
52.
18
19
Plaintiff incorporates, by reference, all allegations in the above paragraphs of this
Complaint, as though fully set forth herein.
20
53.
At all times relevant to this action, Plaintiff was employed by Defendant.
21
54.
At all times relevant to this action, CAL. GOV'T CODE §12900 et seq. were in full force
22
and effect and were binding upon Defendant. These sections, inter alia, require Defendant to refrain
23
from discriminating and retaliating against any employee on the basis of a disability, perceived
24
disability, and/or history of disability, requests/need for accommodation, and opposition to conduct
25
related thereto.
55.
26
Defendant engaged in conduct that, taken as a whole, materially and adversely affected
27
the teems and conditions of Plaintiff's employment.
28
///
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-8COMPLAINT FOR DAMAGES
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1
56.
Plaintiff's assertion of his rights under CAL. GOV'T CODE §12900 et seq. was a
2
substantial motivating reason for Defendant's decision to retaliate against him. Defendant's conduct
3
was a substantial factor in causing harm to Plaintiff, as set forth herein.
57.
4
5
At all times relevant to this action, Defendant unlawfully retaliated against Plaintiff, in
violation of CAL. GOV'T CODE §§ 12940(h) and 12940(m)(2) by terminating his employment.
58.
6
Defendant's retaliatory termination of Plaintiff's employment was substantially
7
motivated by his disability, perceived disability, and/or history of disability, requests/need for
8
accommodation, and opposition to Defendant's conduct related thereto, as previously pled herein.
59.
9
As a direct and proximate result of Defendant's conduct, Plaintiff has suffered and
10
continues to suffer losses in earnings and other benefits and will for a period of time in the future be
11
unable to obtain gainful employment, as his ability to obtain such employment and earning capacity
12
have been diminished. The exact amount of such expenses and losses is presently unknown, and
13
Plaintiff will seek leave of court to amend this Complaint to set forth the exact amount when it is
14
ascertained.
60.
15
As a direct and proximate result of Defendant's conduct, Plaintiff suffered general
16
damages as he was psychologically injured. Such injuries have caused, and continue to cause, Plaintiff
17
great mental pain and suffering in an amount in excess of this Court's minimal jurisdiction.
61.
18
As a direct and proximate result of Defendant's conduct, Plaintiff, for a period of time
19
in the future, will be required to employ physicians and incur additional medical and incidental
20
expenses. The exact amount of such expenses is presently unknown to Plaintiff and he will seek leave
21
of court to amend this Complaint to set forth the exact amount when it has been ascertained.
62.
22
Plaintiff is informed and believes, and thereon alleges that the employees, officers,
23
directors, and/or managing agents of Defendant acted with malice and oppression as their unlawful
24
acts were carried out with full knowledge of the extreme risk of injury involved and with willful and
25
conscious disregard for Plaintiff's rights. They also acted fraudulently, as they willfully concealed the
26
fact that Plaintiff's employment rights were being violated, with the intent to deprive him of
27
employment benefits. Accordingly, an award of punitive damages is warranted.
28
///
L&N File #: 7460
-9COMPLAINT FOR DAMAGES
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1
63.
Plaintiff is informed and believes, and thereon alleges that the actions of Defendant's
2
employees, officers, directors, and/or managing agents were undertaken with the prior approval,
3
consent, and authorization of Defendant and was subsequently authorized and ratified by them as well
4
by and through its officers,.directors, and/or managing agents.
5
6
FIFTH CAUSE OF ACTION
7
FAILURE TO PREVENT DISCRIMINATION AND RETALIATION IN VIOLATION OF
8
THE FAIR EMPLOYMENT AND HOUSING ACT
64.
9
10
Plaintiff incorporates, by reference, all allegations in the above paragraphs of this
Complaint, as though fully set forth herein.
11
65.
At all times relevant to this action, Plaintiff was employed by Defendant.
12
66.
At all times relevant to this action, Defendant was an employer who regularly
13
employed five or more persons within the meaning of CAL. GOV'T CODE § 12926(d).
14
67.
At all times relevant to this action, Plaintiff was a member of a protected class within
15
the meaning of CAL. Gov'T CODE §§ 12940(a) and 12926(m) because of his disability, perceived
16
disability, and/or history of disability.
17
68.
At all times relevant to this action, Defendant unlawfully discriminated and retaliated
18
against Plaintiff, as previously alleged, on the basis of his disability, perceived disability, and/or
19
history of disability, requests/need for accommodation, and opposition to related conduct by
20
terminating his employment.
21
69.
Defendant was substantially motivated to terminate Plaintiff because of his disability,
22
perceived disability, and/or history of disability, requests/need for accommodation, and opposition to
23
related conduct, as previously pled herein.
70.
24
Defendant failed to take reasonable steps to prevent the unlawful discrimination and
25
retaliation during Plaintiff's employment, as previously pled, in violation of CAL. GOV'T CODE
26
§12940(k), even when management level employees of Defendant became aware of the discriminatory
27
and retaliatory conduct. Instead, Defendant terminated Plaintiff in bad faith.
28
///
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7460
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Case 2:23-cv-00062-MRW Document 1 Filed 01/05/23 Page 21 of 24 Page ID #:21
71.
1
As a direct and proximate result of Defendant's conduct, Plaintiff has suffered and
2
continues to suffer losses in earnings and other benefits and will for a period oftime in the future be
3
unable to obtain gainful employment, as his ability to obtain such employment and earning capacity
4
have been diminished. The exact amount of such expenses and losses is presently unknown, and
5
Plaintiff will seek leave of court to amend this Complaint to set forth the exact amount when it is
6
ascertained.
7
72.
As a direct and proximate result of Defendant's conduct, Plaintiff suffered general
8
damages as he was psychologically injured. Such injuries have caused, and continue to cause, Plaintiff
9
great mental pain and suffering in an amount in excess of this Court's minimal jurisdiction.
10
73.
As a direct and proximate result of Defendant's conduct, Plaintiff, for a period of time
11
in the future, will be required to employ physicians and incur additional medical and incidental
12
expenses. The exact amount of such expenses is presently unknown to Plaintiff and he will seek leave
13
of court to amend this Complaint to set forth the exact amount when it has been ascertained.
14
74.
Plaintiff is informed and believes, and thereon alleges that the employees, officers,
15
directors, and/or managing agents of Defendant acted with malice and oppression as their unlawful
16
acts were carried out with full knowledge of the extreme risk of injury involved and with willful and
17
conscious disregard for Plaintiff's rights. They also acted fraudulently, as they willfully concealed the
18
fact that Plaintiff's employment rights were being violated, with the intent to deprive him of
19
employment benefits. Accordingly, an award of punitive damages is warranted.
20
75.
Plaintiff is informed and believes, and thereon alleges that the actions of Defendant's
21
employees, officers, directors, and/or managing agents were undertaken with the prior approval,
22
consent, and authorization of Defendant and was subsequently authorized and ratified by them as well
23
by and through its officers, directors, and/or managing agents.
24
///
25
26
/1/
27
///
28
///
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Case 2:23-cv-00062-MRW Document 1 Filed 01/05/23 Page 22 of 24 Page ID #:22
SIXTH CAUSE OF ACTION
WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY
2
76.
3
4
Plaintiff incorporates, by reference, all allegations in the above paragraphs of this
Complaint, as though fully set forth herein.
5
77.
At all times relevant to this action, Plaintiff was employed by Defendant.
6
78.
At all times relevant to this action, CAL. GOV'T CODE §12900 et seq. were in full force
7
and effect and were binding upon Defendant. These sections, inter alia, require Defendant to refrain
8
from discriminating, retaliating against, or terminating any employee on the basis of a disability,-
9
perceived disability, and/or history of disability, request/need for accommodation, and opposition to
10
conduct related thereto.
11
12
79.
Defendant's conduct, as previously alleged, was in retaliation for Plaintiff's assertion of
rights under CAL. GOV'T CODE §§12900 et seq.
13
80.
Plaintiff's assertion of his rights under CAL. GOV'T CODE §§12900 et seq. was a
14
substantial motivating reason for Defendant's decision to discriminate, retaliate against, and terminate
15
Plaintiff. Defendant's conduct was a substantial factor in causing harm to Plaintiff as set forth herein.
81.
16
17
CAL. GOV'T CODE §§12900 et seq. evinces a policy that benefits society at large, was
well-established at the time of Plaintiff's discharge, and is substantial and fundamental.
18
82.
Defendant's wrongful termination of Plaintiffs employment was substantially
19
motivated by his disability, perceived disability, and/or history of disability, requests/need for
20
accommodation, and opposition to conduct related thereto.
21
83.
As a direct and proximate result of Defendant's conduct, Plaintiff has suffered and
22
continues to suffer losses in earnings and other benefits and will for a period of time in the future be
23
unable to obtain gainful employment, as his ability to obtain such employment and earning capacity
24
have been diminished. The exact amount of such expenses and losses is presently unknown, and
75
Plaintiff will seek leave of court to amend this Complaint to set forth the exact amount when it is
26
ascertained.
27
///
28
///
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Case 2:23-cv-00062-MRW Document 1 Filed 01/05/23 Page 23 of 24 Page ID #:23
1
84.
As a direct and proximate result of Defendant's conduct, Plaintiff suffered general
2
damages as he was psychologically injured. Such injuries have caused, and continue to cause, Plaintiff
3
great mental pain and suffering in an amount in excess of this Court's minimal jurisdiction.
4
85.
As a direct and proximate result of Defendant's conduct, Plaintiff, for a period of time
5
in the future, will be required to employ physicians and incur additional medical and incidental
6
expenses. The exact amount of such expenses is presently unknown to Plaintiff and he will seek leave
7
of court to amend this Complaint to set forth the exact amount when it has been ascertained.
8
9
86.
Plaintiff is informed and believes, and thereon alleges that the employees, officers,
directors, and/or managing agents of Defendant acted with malice and oppression as their unlawful
10
acts were carried out with full knowledge of the extreme risk of injury involved and with willful and
11
conscious disregard for Plaintiff's rights. They also acted fraudulently, as they willfully concealed the
12
fact that Plaintiff's employment rights were being violated, with the intent to deprive him of
13
employment benefits. Accordingly, an award of punitive damages is warranted.
14
87.
Plaintiff is informed and believes, and thereon alleges that the actions of Defendant's
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employees, officers, directors, and/or managing agents were undertaken with the prior approval,
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consent, and authorization of Defendant and was subsequently authorized and ratified by them as well
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by and through its officers, directors, and/or managing agents.
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PRAYER FOR RELIEF
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WHEREFORE,Plaintiff CRAIG NAKAYAMA,prays for judgment against Defendant
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TESLA,INC., and DOES 1 through 20, as follows:
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1. Past and future economic and non-economic damages according to proof;
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2. Pre-judgment interest, post-judgment interest, costs of suit and attorney's fees according to
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proof;
3. Injunctive relief compelling Defendant to reinstate Plaintiff to his previous position,
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prohibiting Defendant from engaging in similar unlawful conduct as complained of herein, and
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ordering Defendant to establish effective preventive mechanisms to ensure that the conduct
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complained of herein does not continue in the future;
IAN File #: 7460
-13COMPLAINT FOR DAMAGES
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Case 2:23-cv-00062-MRW Document 1 Filed 01/05/23 Page 24 of 24 Page ID #:24
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4. Declaratory relief that Defendant's conduct as complained of herein was a violation of
Plaintiff's rights;
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5. Punitive damages; and
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6. All other relief that the Court deems just and proper.
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DEMAND FOR JURY TRIAL
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Plaintiff demands a trial by jury on all claims as provided by California law.
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Dated: October 19,2022
LEVIN & NALBANDVAN,LLP
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By:
A. Jacob Nalbandyan, Esq.
Charlene Nercess, Esq.
Attorneys for Plaintiff,
CRAIG NAKAYAMA
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L&N.File 4:7460
-14COMPLAINT FOR DAMAGES