Summons on Complaint Issued and Filed by: Margarita Vargas (Plaintiff) As to: Tesla Motors, Inc., a Delaware corporation (Defendant); Tesla, Inc., a Delaware corporation (Defendant); Volt Information Sciences, Inc., a New York corporation (Defendant) et al.
Page 1
Ramin R. Younessi, Esq. (SBN 175020)
LAW OFFICES OF RAMIN R. YOUNESSI
A PROFESSIONAL LAW CORPORATION
3435 Wilshire Boulevard, Suite Los Angeles, California Telephone: (213) 480-Facsimile: (213) 480-Attorney for Plaintiff,
MARGARITA VARGAS
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ALAMEDA, HAYWARD HALL OF JUSTICE
MARGARITA VARGAS, an individual,
Plaintiff,
Case No.
COMPLAINT FOR DAMAGES FOR:
v.
1. DISCRIMINATION IN VIOLATION OF
GOV’T CODE §§12940 ET SEQ.;
TESLA MOTORS, INC., a Delaware
corporation; TESLA, INC., a Delaware
corporation; VOLT INFORMATION
SCIENCES, INC., a New York corporation;
VOLT MANAGEMENT CORP., a Delaware
corporation; ANDREW DOE, an individual;
PEDRO DOE, an individual; KAI DOE, an
individual; MONA DOE, an individual; and
DOES 1 through 20, inclusive,
Defendants.
2. HARASSMENT IN VIOLATION OF
GOV’T CODE §§12940 ET SEQ.;
3. RETALIATION IN VIOLATION OF
GOV’T CODE §§12940 ET SEQ.;
4. FAILURE TO PREVENT
DISCRIMINATION, HARASSMENT AND
RETALIATION IN VIOLATION OF
GOV’T CODE §12940(k);
5. FOR DECLARATORY JUDGMENT;
6. BATTERY;
7. ASSAULT;
8. SEXUAL BATTERY (CIVIL CODE
§1708.5);
9. GENDER VIOLENCE (CIVIL CODE §
52.4);
10. VIOLATION OF THE RALPH CIVIL
RIGHTS ACT (CIVIL CODE §51.7);
11. VIOLATION OF THE TOM BANE CIVIL
RIGHTS ACT (CIVIL CODE §52.1);
-1COMPLAINT FOR DAMAGESPage 2
12. NEGLIGENT SUPERVISION AND
RETENTION;
13. WRONGFUL TERMINATION IN
VIOLATION OF PUBLIC POLICY
14. FAILURE TO PAY WAGES (CAL. LABOR
CODE §§201, 1194);
15. FAILURE TO PROVIDE REST PERIODS
(CAL. LABOR CODE §§226.7);
16. FAILURE TO PROVIDE ITEMIZED
WAGE AND HOUR STATEMENTS (CAL.
LABOR CODE §§226, ET SEQ.);
17. WAITING TIME PENALTIES (CAL.
LABOR CODE §§201-203); AND
18. UNFAIR COMPETITION (BUS. & PROF.
CODE §17200 ET SEQ.);
DEMAND OVER $25,
[DEMAND FOR JURY TRIAL]
COMES NOW PLAINTIFF, MARGARITA VARGAS, and for causes of action against the
Defendants and each of them, alleges as follows:
JURISDICTION
1.
This Court is the proper court, and this action is properly filed in Alameda County, because
Defendants’ obligations and liability arise therein, because Defendants maintain offices and transact
business within Alameda County, and because the work that is the subject of this action was performed
by Plaintiff in Alameda County.
THE PARTIES
2.
Plaintiff, MARGARITA VARGAS, is and at all times relevant hereto was a resident of
the County of Alameda, State of California.
3.
Plaintiff is informed and believes, and based thereupon alleges, that at all times relevant
hereto, Defendant TESLA MOTORS, INC. (hereinafter referred to as “TESLA MOTORS”) was and is
-2COMPLAINT FOR DAMAGESPage 3
a Delaware corporation doing business at 45500 Fremont Blvd., in the City of Fremont, in the County of
Alameda, State of California.
4.
Plaintiff is informed and believes, and based thereupon alleges, that at all times relevant
hereto, Defendant TESLA, INC. (hereinafter referred to as “TESLA”) was and is a Delaware corporation
doing business at 45500 Fremont Blvd., in the City of Fremont, in the County of Alameda, State of
California.
5.
Plaintiff is informed and believes, and based thereupon alleges, that at all times relevant
hereto, Defendant VOLT INFORMATION SCIENCES, INC. (hereinafter referred to as “VOLT
INFORMATION”) was and is a New York corporation doing business at 45500 Fremont Blvd., in the
City of Fremont, in the County of Alameda, State of California.
6.
Plaintiff is informed and believes, and based thereupon alleges, that at all times relevant
hereto,
MANAGEMENT”) was and is a Delaware corporation doing business at 45500 Fremont Blvd., in the
City of Fremont, in the County of Alameda, State of California.
Defendant
7.
VOLT
MANAGEMENT
CORP.
(hereinafter
referred
to
as
“VOLT
Defendants TESLA MOTORS, TESLA, VOLT INFORMATION, and VOLT
MANAGEMENT are hereinafter collectively referred to as “Employers.”
8.
Plaintiff is informed and believes, and based thereupon alleges, that at all times relevant
hereto, Employers owned and operated a private automobile manufacturing and finishing plant.
9.
At all times relevant herein, Employers and DOES 1-20 were Plaintiff’s employers, joint
employers and/or special employers within the meaning of Government Code §§12926, subdivision (d),
12940, subdivisions (a),(h),(1), (h)(3)(A), and (i), and 12950, and regularly employ five (5) or more
persons and are therefore subject to the jurisdiction of this Court.
10.
At all times relevant herein, Employers and DOES 1-20 were Plaintiff’s employers, joint
employers and/or special employers within the meaning of the Labor Code and Industrial Welfare
Commission Order No. 1-2001 and are each an “employer or other person acting on behalf of an
employer” as such term is used in Labor Code section 558, and liable to Plaintiff on that basis.
11.
Plaintiff is informed and believes, and based thereupon alleges, that at all times relevant
hereto, Defendants ANDREW DOE, PEDRO DOE, KAI DOE AND MONA DOE, were and are
-3COMPLAINT FOR DAMAGESPage 4
individual residents of the County of Alameda, State of California, and are hereinafter individually
referred to by their name and collectively referred to as the “Individual Defendants.” The Individual
Defendants were Employers’ managers, corporate agents, supervisors, and/or employees.
12.
Individual Defendants
and Employers are collectively referred to hereinafter
interchangeably as “Employers” or “Defendants”.
13.
The true names and capacities, whether individual, corporate, associate, or otherwise, of
the Defendants named herein as DOES 1-20, inclusive, are unknown to Plaintiff at this time and therefore
said Defendants are sued by such fictitious names. Plaintiff will seek leave to amend this complaint to
insert the true names and capacities of said Defendants when the same become known to Plaintiff.
Plaintiff is informed and believes, and based thereupon alleges, that each of the fictitiously named
Defendants is responsible for the wrongful acts alleged herein, and is therefore liable to Plaintiff as
alleged hereinafter.
14.
Plaintiff is informed and believes, and based thereupon alleges, that at all times relevant
hereto, Defendants, and each of them, were the agents, employees, managing agents, supervisors,
coconspirators, parent corporation, joint employers, alter egos, successors, and/or joint ventures of the
other Defendants, and each of them, and in doing the things alleged herein, were acting at least in part
within the course and scope of said agency, employment, conspiracy, joint employer, alter ego status,
successor status and/or joint venture and with the permission and consent of each of the other Defendants.
15.
Plaintiff is informed and believes, and based thereupon alleges, that Defendants, and each
of them, including those defendants named as DOES 1-20, acted in concert with one another to commit
the wrongful acts alleged herein, and aided, abetted, incited, compelled and/or coerced one another in the
wrongful acts alleged herein, and/or attempted to do so, including pursuant to Government Code
§12940(i). Plaintiff is further informed and believes, and based thereupon alleges, that Defendants, and
each of them, including those defendants named as DOES 1-20, and each of them, formed and executed
a conspiracy or common plan pursuant to which they would commit the unlawful acts alleged herein,
with all such acts alleged herein done as part of and pursuant to said conspiracy, intended to cause and
actually causing Plaintiff harm.
-4COMPLAINT FOR DAMAGESPage 5 16.
Whenever and wherever reference is made in this complaint to any act or failure to act by
a Defendant or co-Defendant, such allegations and references shall also be deemed to mean the acts
and/or failures to act by each Defendant acting individually, jointly and severally.
17.
Plaintiff has filed complaints of discrimination, harassment, retaliation, failure to prevent
discrimination, retaliation or harassment, and wrongful termination under Government Code §§12940, et
seq., the California Fair Employment and Housing Act (“FEHA”) with the California Civil Rights
Department and has satisfied Plaintiff’s administrative prerequisites with respect to these and all related
filings.
ALTER EGO, AGENCY, SUCCESSOR AND JOINT EMPLOYER
18.
Plaintiff is informed and believes, and based thereon alleges, that there exists such a unity
of interest and ownership between Employers and DOES 1-20 that the individuality and separateness of
defendants have ceased to exist.
19.
Plaintiff is informed and believes, and based thereon alleges, that despite the formation of
purported corporate existence, Employers and DOES 1-20 are, in reality, one and the same, including,
but not limited to because:
a.
Employers are completely dominated and controlled by one another and DOES 1-
20, who personally committed the frauds and violated the laws as set forth in this complaint, and who
have hidden and currently hide behind Defendants to perpetrate frauds, circumvent statutes, or
accomplish some other wrongful or inequitable purpose.
b.
Employers and DOES 1-20 derive actual and significant monetary benefits by and
through one another’s unlawful conduct, and by using one another as the funding source for their own
personal expenditures.
c.
Employers and DOES 1-20, while really one and the same, were segregated to
appear as though separate and distinct for purposes of perpetrating a fraud, circumventing a statute, or
accomplishing some other wrongful or inequitable purpose.
d.
Employers do not comply with all requisite corporate formalities to maintain a
legal and separate corporate existence.
-5COMPLAINT FOR DAMAGESPage 6 e.
The business affairs of Employers and DOES 1-20 are, and at all times relevant
were, so mixed and intermingled that the same cannot reasonably be segregated, and the same are in
inextricable confusion. Employers are, and at all times relevant hereto were, used by one another and
DOES 1-20 as a mere shell and conduit for the conduct of certain of Defendants’ affairs, and are, and
were, the alter ego of one another and DOES 1-20. The recognition of the separate existence of
Defendants would not promote justice, in that it would permit Defendants to insulate themselves from
liability to Plaintiff for violations of the Government Code and other statutory violations. The corporate
existence of Employers and DOES 1-20 should be disregarded in equity and for the ends of justice
because such disregard is necessary to avoid fraud and injustice to Plaintiff herein.
20.
Accordingly, Employers constitute the alter ego of one another and DOES 1-20, and the
fiction of their separate corporate existence must be disregarded.
21.
As a result of the aforementioned facts, Plaintiff is informed and believes, and based
thereon alleges that Employers and DOES 1-20 are Plaintiff’s joint employers by virtue of a joint
enterprise, and that Plaintiff was an employee of Employers and DOES 1-20. Plaintiff performed services
for each and every one of Defendants, and to the mutual benefit of all Defendants, and all Defendants
shared control of Plaintiff as an employee, either directly or indirectly, and the manner in which
Defendants’ business was and is conducted.
22.
Alternatively, Plaintiff is informed and believes and, based thereupon alleges, that as and
between DOES 1-20, Employer, or any of them, (1) there is an express or implied agreement of
assumption pursuant to which Employers and/or DOES 1-20 agreed to be liable for the debts of the other
Defendants, (2) the transaction between Employers and/or DOES 1-20 and the other Defendants amounts
to a consolidation or merger of the two corporations, (3) Employers and/or DOES 1-20 are a mere
continuation of the other Defendants, or (4) the transfer of assets to Employers and/or DOES 1-20 is for
the fraudulent purpose of escaping liability for Defendants’ debts. Accordingly, Employers and/or DOES
1-20 are the successors of one or more of the other Defendants and are liable on that basis.
-6COMPLAINT FOR DAMAGESPage 7
FACTUAL ALLEGATIONS
23.
On or about January 25, 2021, Employers hired Plaintiff to work as an assembly worker.
Plaintiff was a full-time, non-exempt employee, and performed all of Plaintiff’s job duties satisfactorily
before Plaintiff was wrongfully terminated on or about June 30, 2021.
24.
Between January 25, 2021 and June 30, 2021, Plaintiff’s hourly wage rate was $23.10.
During this time, Plaintiff’s schedule was approximately 5 days per week, for approximately 12 hours
per day.
25.
Throughout Plaintiff’s employment, Plaintiff was not permitted to, and not advised of
Plaintiff’s right to take statutory 10-minute rest breaks for every four hours worked or substantial portion
thereof. One or more of Plaintiff’s 10-minute rest breaks were not provided approximately 5 days per
week.
26.
Throughout Plaintiff’s employment, Plaintiff was harassed by Andrew Doe, Pedro Doe,
Kai Doe and Mona Doe.
27.
During Plaintiff’s employment, Pedro Doe asked Plaintiff if Plaintiff would have sex with
a man who looked like a woman, if Plaintiff would have sex with another employee, about Plaintiff’s
sexual orientation, if Plaintiff would have sex with a guy for money, how much money would it take for
Plaintiff to have sex with a guy, if Plaintiff ever had a boyfriend, how girls have sex with each other, if
Plaintiff would have sex with Pedro Doe or Pedro Doe’s wife. Pedro Doe also told Plaintiff that if Plaintiff
wanted to get ahead at Employer, Plaintiff would have to suck a penis and for Plaintiff to get the knee
pads out. Pedro Doe also cornered Plaintiff, blocked Plaintiff, and pressed his body against Plaintiff’s
body. Plaintiff immediately resisted by yelling at Pedro Doe to move away. Plaintiff always declined
Pedro Doe’s advances.
28.
Plaintiff reported Pedro Doe’s actions to Plaintiff’s supervisor, to a lead at Employer, and
to Employers’ Human Resources (“HR”) Department. Plaintiff’s supervisor told Plaintiff that he would
look into the matter and take care of it, however, nothing happened. Employers’ HR Department only
offered Plaintiff to be moved away to a new area of work but did not investigate or take any action
regarding the incidences that Plaintiff reported.
-7COMPLAINT FOR DAMAGESPage 8
29.
During Plaintiff’s employment, Andrew Doe groped Plaintiff’s breasts, squeezed
Plaintiff’s buttocks and put his hand over Plaintiff’s vagina. Plaintiff immediately resisted by backing
away. At all relevant times, Plaintiff declined Andrew Doe’s advances. Plaintiff reported Andrew Doe’s
actions to her lead at Employers, and to Employers’ HR Department. However, no action was taken to
aid Plaintiff.
30.
Throughout Plaintiff’s employment, Kai Doe sexually harassed Plaintiff by following
Plaintiff around and waiting for Plaintiff outside the women’s bathroom. At all relevant times, Plaintiff
declined Kai Doe’s advances. Plaintiff reported Kai Doe’s actions to the Employers’ HR department.
Then, Kai Doe obtained Plaintiff’s cellphone number from another employee and started sending Plaintiff
text messages, which terrified Plaintiff.
department. When Plaintiff would decline Kai Doe’s advances, Kai Doe threatened Plaintiff by opening
his bag and showing Plaintiff his gun and told Plaintiff that he carried the gun every day to work. During
Plaintiff’s employment, Kai Doe hugged Plaintiff from behind, kissed her on the cheek, attempted to hold
Plaintiff’s hand, and tried to kiss Plaintiff on the lips but Plaintiff immediately resisted by turning away
and stopped him from continuing his sexual advances.
31.
Plaintiff again reported Kai Doe to the Employers’ HR
During Plaintiff’s employment, on two occasions, Mona Doe choked Plaintiff, picked
Plaintiff up by her neck and held Plaintiff off the ground. Mona Doe choked Plaintiff in front of Plaintiff’s
supervisor and another employees but no one helped Plaintiff. Plaintiff immediately resisted by yelling
at Mona Doe to stop touching Plaintiff and confronted Mona Doe.
32.
Shortly thereafter, Employers wrongfully terminated Plaintiff on or about June 30, 2021.
33.
Plaintiff’s termination was substantially motivated by Plaintiff’s gender, sex, sexual
orientation, and/or engagement in protected activities. Defendants’ discriminatory animus is evidenced
by the previously mentioned facts.
34.
Defendants’ conduct described herein was undertaken, authorized, and/or ratified
Defendants’ officers, directors and/or managing agents, including, but not limited to Jonathan Doe,
Randy Doe, Elle Doe and George Doe, and those identified herein as DOES 1 through 20, who were
authorized and empowered to make decisions that reflect and/or create policy for Defendants. The
aforementioned conduct of said managing agents and individuals was therefore undertaken on behalf of
-8COMPLAINT FOR DAMAGESPage 9
Defendants who further had advanced knowledge of the actions and conduct of said individuals whose
actions and conduct were ratified, authorized, and approved by managing agents whose precise identities
are unknown to Plaintiff at this time and are therefore identified and designated herein as DOES 1 through
20, inclusive.
35.
As a result of Defendants’ actions, Plaintiff has suffered and will continue to suffer general
and special damages, including severe and profound pain and emotional distress, anxiety, depression,
headaches, tension, and other physical ailments, as well as medical expenses, expenses for psychological
counseling and treatment, and past and future lost wages and benefits.
36.
commissions, benefits and loss or diminution of earning capacity.
37.
As a result of the above, Plaintiff is entitled to past and future lost wages, bonuses,
Plaintiff claims general damages for emotional and mental distress and aggravation in a
sum in excess of the jurisdictional minimum of this Court.
38.
Because the acts taken toward Plaintiff were carried out by officers, directors and/or
managing agents acting in a deliberate, cold, callous, cruel and intentional manner, in conscious disregard
of Plaintiff’s rights and in order to injure and damage Plaintiff, Plaintiff requests that punitive damages
be levied against Defendants and each of them, in sums in excess of the jurisdictional minimum of this
Court.
FIRST CAUSE OF ACTION
FOR DISCRIMINATION IN VIOLATION OF GOV’T CODE §§12940 ET SEQ.
AGAINST ALL DEFENDANTS
39.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
40.
At all times hereto, the FEHA was in full force and effect and was binding upon
Defendants and each of them.
41.
As such term is used under FEHA, “on the bases enumerated in this part” means or refers
to discrimination on the bases of one or more of the protected characteristics under FEHA.
-9COMPLAINT FOR DAMAGESPage 10
42.
FEHA requires Defendants to refrain from discriminating against an employee on the
basis of gender, sex, sexual orientation, and to prevent discrimination and harassment on the basis of
gender. sex, sexual orientation and engagement in protected activities from occurring.
43.
sexual orientation.
44.
Plaintiff was a member of multiple protected classes as a result of her gender, sex and
At all times relevant hereto, Plaintiff was performing competently in the position Plaintiff
held with Defendants.
45.
Plaintiff suffered the adverse employment actions of unlawful harassment, discrimination,
failure to investigate, remedy, and/or prevent discrimination, failure to reinstate and/or return to work,
and constructive termination, and was harmed thereby.
46.
Plaintiff is informed and believes that Plaintiff’s gender, sex, sexual orientation, and/or
some combination of these protected characteristics under Government Code §12926(j) were motivating
reasons and/or factors in the decisions to subject Plaintiff to the aforementioned adverse employment
actions.
47.
Said conduct violates the FEHA, and such violations were a proximate cause in Plaintiff’s
damage as stated below.
48.
The damage allegations of Paragraphs 35 through 38, inclusive, are herein incorporated
by reference.
49.
The foregoing conduct of Defendants individually, or by and through their officers,
directors and/or managing agents, was intended by the Defendants to cause injury to the Plaintiff or was
despicable conduct carried on by the Defendants with a willful and conscious disregard of the rights of
Plaintiff or subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff’s rights
such as to constitute malice, oppression, or fraud under Civil Code §3294, thereby entitling Plaintiff to
punitive damages in an amount appropriate to punish or make an example of Defendants.
50.
Pursuant to Government Code §12965(b), Plaintiff requests a reasonable award of
attorneys’ fees and costs, including expert fees pursuant to the FEHA.
-10COMPLAINT FOR DAMAGESPage 11
SECOND CAUSE OF ACTION
FOR HARASSMENT IN VIOLATION OF GOV’T CODE §§12940 ET SEQ.
AGAINST ALL DEFENDANTS
51.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
52.
At all times hereto, the FEHA was in full force and effect and was binding upon
Defendants and each of them.
53.
As such term is used under FEHA, “on the bases enumerated in this part” means or refers
to harassment on the bases of one or more of the protected characteristics under FEHA.
54.
These laws set forth in the preceding paragraph require Defendants to refrain from
harassing, or creating, or maintaining a hostile work environment against an employee based upon the
employee’s gender, sex, sexual orientation, and engagement in protected activities, as set forth
hereinabove.
55.
Defendants’ harassing conduct was severe or pervasive, was unwelcome by Plaintiff, and
a reasonable person in Plaintiff’s circumstances would have considered the work environment to be
hostile or abusive.
56.
Defendants violated the FEHA and the public policy of the State of California which is
embodied in the FEHA by creating a hostile work environment and harassing Plaintiff because of
Plaintiff’s gender, sex, sexual orientation, engagement in protected activities, and/or some combination
of these protected characteristics, as set forth hereinabove.
57.
The above said acts were perpetrated upon Plaintiff by a supervisor, and/or Defendants
knew or should have known of the conduct but failed to take immediate and appropriate corrective action.
58.
The above said acts of Defendants constitute violations of the FEHA and violations of the
public policy of the State of California. Such violations were a proximate cause in Plaintiff’s damage as
stated below.
59.
The damage allegations of Paragraphs 35 through 38, inclusive, are herein incorporated
by reference.
-11COMPLAINT FOR DAMAGESPage 12
60.
The foregoing conduct of Defendants individually, or by and through their officers,
directors and/or managing agents, was intended by the Defendants to cause injury to the Plaintiff or was
despicable conduct carried on by the Defendants with a willful and conscious disregard of the rights of
Plaintiff or subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff’s rights
such as to constitute malice, oppression, or fraud under Civil Code §3294, thereby entitling Plaintiff to
punitive damages in an amount appropriate to punish or make an example of Defendants.
61.
Pursuant to Government Code §12965(b), Plaintiff requests a reasonable award of
attorneys’ fees and costs, including expert fees pursuant to the FEHA.
THIRD CAUSE OF ACTION
FOR RETALIATION IN VIOLATION OF GOV’T CODE §§12940 ET SEQ.
AGAINST ALL DEFENDANTS
62.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
63.
At all times hereto, the FEHA was in full force and effect and was binding upon
Defendants and each of them.
64.
These laws set forth in the preceding paragraph require Defendants to refrain from
retaliating against an employee for engaging in protected activity.
65.
Plaintiff engaged in the protected activities of complaining about and protesting
Defendants’ discriminatory and harassing conduct towards Plaintiff based upon her gender, sex and
sexual orientation.
66.
Plaintiff suffered the adverse employment actions of unlawful harassment, discrimination,
failure to investigate, remedy, and/or prevent discrimination, failure to reinstate and/or return to work,
and constructive termination, and was harmed thereby.
67.
Plaintiff is informed and believes that Plaintiff’s conduct of complaining about and
protesting Defendants’ discriminatory and harassing conduct, and/or some combination of these factors,
were motivating reasons and/or factors in the decisions to subject Plaintiff to the aforementioned adverse
employment actions.
-12COMPLAINT FOR DAMAGESPage 13
68.
Defendants violated the FEHA by retaliating against Plaintiff and terminating Plaintiff for
attempting to exercise Plaintiff’s protected rights, as set forth hereinabove.
69.
Plaintiff is informed and believes, and based thereon alleges, that the above acts of
retaliation committed by Defendants were done with the knowledge, consent, and/or ratification of, or at
the direction of, each other Defendant and the other Managers.
70.
The above said acts of Defendants constitute violations of the FEHA, and were a
proximate cause in Plaintiff’s damage as stated below.
71.
The damage allegations of Paragraphs 35 through 38, inclusive, are herein incorporated
by reference.
72.
The foregoing conduct of Defendants individually, or by and through their officers,
directors and/or managing agents, was intended by the Defendants to cause injury to the Plaintiff or was
despicable conduct carried on by the Defendants with a willful and conscious disregard of the rights of
Plaintiff or subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff’s rights
such as to constitute malice, oppression, or fraud under Civil Code §3294, thereby entitling Plaintiff to
punitive damages in an amount appropriate to punish or make an example of Defendants.
73.
Pursuant to Government Code §12965(b), Plaintiff requests a reasonable award of
attorneys’ fees and costs, including expert fees pursuant to the FEHA.
FOURTH CAUSE OF ACTION
FAILURE TO PREVENT DISCRIMINATION, HARASSMENT, AND RETALIATION
IN VIOLATION OF GOV’T CODE §12940(k)
AGAINST ALL DEFENDANTS
74.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
75.
At all times hereto, the FEHA, including in particular Government Code §12940(k), was
in full force and effect and was binding upon Defendants. This subsection imposes a duty on Defendants
to take all reasonable steps necessary to prevent discrimination, harassment, and retaliation from
-13COMPLAINT FOR DAMAGESPage 14
occurring. As alleged above, Defendants violated this subsection and breached their duty by failing to
take all reasonable steps necessary to prevent discrimination, harassment and retaliation from occurring.
76.
The above said acts of Defendants constitute violations of the FEHA, and were a
proximate cause in Plaintiff’s damage as stated below.
77.
The damage allegations of Paragraphs 35 through 38, inclusive, are herein incorporated
by reference.
78.
The foregoing conduct of Defendants individually, or by and through their officers,
directors and/or managing agents, was intended by the Defendants to cause injury to the Plaintiff or was
despicable conduct carried on by the Defendants with a willful and conscious disregard of the rights of
Plaintiff or subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff’s rights
such as to constitute malice, oppression, or fraud under Civil Code §3294, thereby entitling Plaintiff to
punitive damages in an amount appropriate to punish or make an example of Defendants.
79.
Pursuant to Government Code §12965(b), Plaintiff requests a reasonable award of
attorneys’ fees and costs, including expert fees pursuant to the FEHA.
FIFTH CAUSE OF ACTION
FOR DECLARATORY JUDGMENT
AGAINST ALL DEFENDANTS
80.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
81.
Government Code §12920 sets forth the public policy of the State of California as follows:
It is hereby declared as the public policy of this state that it is necessary to
protect and safeguard the right and opportunity of all persons to seek,
obtain, and hold employment without discrimination or abridgment on
account of race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, genetic information,
marital status, sex, gender, gender identity, gender expression, age, or
sexual orientation.
It is recognized that the practice of denying employment opportunity and
discriminating in the terms of employment for these reasons foments
domestic strife and unrest, deprives the state of the fullest utilization of its
capacities for development and advancement, and substantially and
adversely affects the interests of employees, employers, and the public in
general.
-14COMPLAINT FOR DAMAGESPage 15 Further, the practice of discrimination because of race, color, religion,
sex, gender, gender identity, gender expression, sexual orientation,
marital status, national origin, ancestry, familial status, source of income,
disability, or genetic information in housing accommodations is declared
to be against public policy.
It is the purpose of this part to provide effective remedies that will
eliminate these discriminatory practices.
This part shall be deemed an exercise of the police power of the state for
the protection of the welfare, health, and peace of the people of this state.
82.
In order to eliminate discrimination, it is necessary to provide effective
remedies that will both prevent and deter unlawful employment practices
and redress the adverse effects of those practices on aggrieved persons.
To that end, this part shall be deemed an exercise of the Legislature's
authority pursuant to Section 1 of Article XIV of the California
Constitution.
83.
Moreover, Government Code §12921, subdivision (a) says in pertinent part:
The opportunity to seek, obtain, and hold employment without
discrimination because of race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, genetic
information, marital status, sex, gender, gender identity, gender
expression, age, or sexual orientation is hereby recognized as and
declared to be a civil right.
Government Code §12920.5 embodies the intent of the California legislature and states:
84.
An actual controversy has arisen and now exists between Plaintiff and Defendants
concerning their respective rights and duties as it is believed that Defendants may allege that they did not
discriminate and retaliate against Plaintiff; that Plaintiff was not terminated as a result of Plaintiff’s
gender, sex, sexual orientation, engagement in protected activities, and/or some combination of these
protected characteristics. Plaintiff contends that Defendants did discriminate and retaliate against
Plaintiff on the basis of Plaintiff’s gender, sex, sexual orientation, engagement in protected activities,
and/or some combination of these protected characteristics; and that Plaintiff was retaliated against and,
ultimately wrongfully terminated as a result of Plaintiff’s gender, sex, sexual orientation, engagement in
protected activities, and/or some combination of these protected characteristics. Plaintiff is informed and
believes, and on that basis alleges, that Defendants shall dispute Plaintiff's contentions.
85.
Pursuant to Code of Civil Procedure §1060, Plaintiff desires a judicial determination of
Plaintiff’s rights and duties, and a declaration that Defendants harassed Plaintiff on the basis of Plaintiff’s
-15COMPLAINT FOR DAMAGESPage 16
gender, sex, sexual orientation, engagement in protected activities, and/or some combination of these
protected characteristics.
86.
Pursuant to Code of Civil Procedure §1060, Plaintiff seeks a judicial determination of
Plaintiff’s rights and duties, and a declaration that Plaintiff’s gender, sex, sexual orientation, engagement
in protected activities, and/or some combination of these protected characteristics was a substantial
motivating factor in the decision to subject Plaintiff to the aforementioned adverse employment actions.
87.
A judicial declaration is necessary and appropriate at this time under the circumstances in
order that Plaintiff, for Plaintiff and on behalf of employees in the State of California and in conformity
with the public policy of the State, obtain a judicial declaration of the wrongdoing of Defendants and to
condemn such discriminatory employment policies or practices prospectively. Harris v. City of Santa
Monica (2013) 56 Cal.4th 203.
88.
A judicial declaration is necessary and appropriate at this time such that Defendants may
also be aware of their obligations under the law to not engage in discriminatory practices and to not
violate the law in the future.
89.
Government Code §12965(b) provides that an aggrieved party, such as the Plaintiff herein,
may be awarded reasonable attorney's fees and costs: "In civil actions brought under this section, the
court, in its discretion, may award to the prevailing party, including the department, reasonable attorney's
fees and costs, including expert witness fees." Such fees and costs expended by an aggrieved party may
be awarded for the purpose of redressing, preventing, or deterring discrimination and harassment.
SIXTH CAUSE OF ACTION
FOR COMMON LAW BATTERY
AGAINST ALL DEFENDANTS
90.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
91.
A person is liable for battery if the person intentionally caused a harmful or offensive
touching of another person.
-16COMPLAINT FOR DAMAGESPage 17
92.
As alleged herein, Individual Defendants acted with intent to cause a harmful or offensive
touching of Plaintiff, and a harmful and offensive touching of Plaintiff resulted.
93.
As alleged herein, Individual Defendants repeatedly solicited, encouraged, enabled, and
conspired with DOES 1-20 to act with intent to cause a harmful or offensive touching of Plaintiff, and a
harmful and offensive touching of Plaintiff repeatedly resulted.
94.
At all times when committing the aforementioned batteries, Individual Defendants acting,
at least in part, in the course and scope of their employment with Employers.
95.
The above said acts of Individual Defendants were a proximate cause in Plaintiff’s
damages as stated below.
96.
The damage allegations of Paragraphs 35 through 38, inclusive, are herein incorporated
by reference.
97.
The foregoing conduct of Defendants individually, or by and through their managing
agents, was intended by the Defendants to cause injury to the Plaintiffs or was despicable conduct carried
on by the Defendants with a willful and conscious disregard of the rights of Plaintiffs or subjected
Plaintiffs to cruel and unjust hardship in conscious disregard of Plaintiffs’ rights such as to constitute
malice, oppression, or fraud under Civil Code §3294, thereby entitling Plaintiffs to punitive damages in
an amount appropriate to punish or make an example of Defendants.
SEVENTH CAUSE OF ACTION
FOR COMMON LAW ASSAULT
AGAINST ALL DEFENDANTS
98.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
99.
A person is liable for assault if the person intentionally threatened another person causing
a reasonable apprehension of an imminent harmful or offensive bodily contact.
100.
As alleged herein, Individual Defendants acted with intent to threaten Plaintiff with an
imminent harmful or offensive bodily contact and caused Plaintiff a reasonable apprehension of such
contact.
-17COMPLAINT FOR DAMAGESPage 18 101.
As alleged herein, Individual Defendants repeatedly solicited, encouraged, enabled, and
conspired with DOES 1-20 to act with intent to threaten Plaintiffs with an imminent harmful or offensive
bodily contact and repeatedly caused Plaintiff a reasonable apprehension of such contact.
102.
acting, at least in part, in the course and scope of their employment with Employers.
At all times when committing the aforementioned batteries, Individual Defendants was
103.
The above said acts of Defendants were a proximate cause in Plaintiff’s damages as stated
104.
The damage allegations of Paragraphs 35 through 38, inclusive, are herein incorporated
below.
by reference.
105.
The foregoing conduct of Defendants individually, or by and through their managing
agents, was intended by the Defendants to cause injury to the Plaintiffs or was despicable conduct carried
on by the Defendants with a willful and conscious disregard of the rights of Plaintiffs or subjected
Plaintiffs to cruel and unjust hardship in conscious disregard of Plaintiffs’ rights such as to constitute
malice, oppression, or fraud under Civil Code §3294, thereby entitling Plaintiffs to punitive damages in
an amount appropriate to punish or make an example of Defendants.
EIGHTH CAUSE OF ACTION
FOR SEXUAL BATTERY IN VIOLATION OF CIVIL CODE §1708.5 ET SEQ.
AGAINST ALL DEFENDANTS
106.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
107.
At all times hereto, Civil Code §1708.5 was in full force and effect and was binding upon
Defendants and each of them. Under Civil Code §1708.5, a person is civilly liable for sexual battery if
the person acted with the intent to cause harmful or offensive contact with an intimate part of another,
and a sexually offensive contact results.
108.
As alleged herein, Andrew Doe, Pedro Doe and Kai Doe repeatedly acted with intent to
cause harmful or offensive contact with an intimate part of Plaintiff, and a sexually offensive and harmful
contact resulted. At the time of their sexual batteries upon Plaintiff, Andrew Doe, Pedro Doe and Kai
-18COMPLAINT FOR DAMAGESPage 19
Doe were acting at least in part in the course and scope of their employment with Employers, and
Employers and DOES 1-20, repeatedly ratified Andrew Doe’s, Pedro Doe’s and Kai Doe’s sexual
batteries upon Plaintiff.
109.
The above said acts of Defendants constitute violations of Civil Code §1708.5, and were
a proximate cause in Plaintiffs’ damages as stated below.
110.
The damage allegations of Paragraphs 35 through 38, inclusive, are herein incorporated
by reference.
111.
Pursuant to Civil Code §1708.5(c), Plaintiff request an award of punitive damages, in
addition to general and special damages.
112.
Pursuant to Civil Code §1708.5(c) and this court’s statutory authority to award any other
relief the court deems proper, Plaintiff requests a reasonable award of attorneys’ fees and costs, including
expert fees, and any other relief the court deems proper.
NINTH CAUSE OF ACTION
FOR GENDER VIOLENCE
CIVIL CODE §52.
AGAINST ALL DEFENDANTS
113.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
114.
At all relevant times mentioned in this complaint, Civil Code §52.4 was in full force and
effect and was binding on Defendants.
115.
Civil Code §52.4 declares, in pertinent part, that any person subjected to gender violence
may bring a civil action for damages against any responsible party, and may seek actual, compensatory,
and punitive damages thereof, or any other appropriate relief.
116.
For purposes of Civil Code §52.4, gender violence is a form of sex discrimination and
means any of the following:
a.
An act that would constitute a criminal offense under state law that has as an
element the use, attempted use or threatened use of physical force against the person of another,
-19COMPLAINT FOR DAMAGESPage 20
committed at least in part based on the gender of the victim, whether or not the act has resulted in a
criminal complaint, charge, prosecution, or conviction.
b.
A physical intrusion or physical invasion of a sexual nature under coercive
conditions, whether or not the act has resulted in a criminal complaint, charge, prosecution, or conviction.
117.
As alleged above, Individual Defendants assaulted, battered, sexually assaulted, and
sexually battered Plaintiff thereby subjecting her to gender violence within the meaning of Civil Code
§52.4.
118.
As alleged above, Individual Defendants engaged in the foregoing conduct at least in part
based on Plaintiff’s gender, thereby subjecting her to gender violence within the meaning of Civil Code
§52.4.
119.
As alleged above, Individual Defendants grabbed and touched Plaintiff’s body while
Plaintiff was working, and thereby assaulted and battered Plaintiff, thereby subjecting Plaintiff to gender
violence within the meaning of Civil Code §52.4.
120.
As alleged above, Individual Defendants engaged in the foregoing conduct at least in part
based on Plaintiff’s gender, thereby subjecting Plaintiff to gender violence within the meaning of Civil
Code §52.4.
121.
At the time of the gender violence, Individual Defendants were acting at least in part, in
the course and scope of their employment with Employers, as employees and agents, and Employers
enabled the Individual Defendants’ gender violence committed against Plaintiff.
122.
In so doing, Individual Defendants, and Employers committed gender violence against
Plaintiff in violation of Civil Code §52.4.
123.
The damage allegations of Paragraphs 35 through 38, inclusive, are herein incorporated
by reference.
124.
The foregoing conduct of Defendants individually, or by and through their managing
agents, was intended by the Defendants to cause injury to the Plaintiff or was despicable conduct carried
on by the Defendants with a willful and conscious disregard of the rights of Plaintiff or subjected Plaintiff
to cruel and unjust hardship in conscious disregard of Plaintiff’s right to be free from gender violence,
-20COMPLAINT FOR DAMAGESPage 21
such as to constitute malice, oppression, or fraud under Civil Code §52.4(a), thereby entitling Plaintiff to
punitive damages in an amount appropriate to punish or make an example of Defendants.
125.
Pursuant to Civil Code §52.4(a), Plaintiff requests an award of attorneys’ fees in
prosecuting this action.
TENTH CAUSE OF ACTION
FOR VIOLATION OF THE RALPH CIVIL RIGHTS ACT
CIVIL CODE §51.
AGAINST ALL DEFENDANTS
126.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
127.
At all times mentioned herein, Plaintiff had the right to be from any violence, or
intimidation by threat of violence, committed against her person on account of her sex and/or gender.
128.
As alleged above, Defendants subjected Plaintiff to violence, and/or intimidation by
threats of violence against their person on account of their sex and/or gender.
129.
In so doing, Defendants violated the civil rights of Plaintiff, as set forth in the Ralph Civil
Rights Act, which is codified in Civil Code §51.7.
130.
The damage allegations of Paragraphs 35 through 38, inclusive, are herein incorporated
by reference.
131.
The foregoing conduct of Defendants individually, or by and through their managing
agents, was intended by the Defendants to cause injury to the Plaintiff or was despicable conduct carried
on by the Defendants with a willful and conscious disregard of the rights of Plaintiff or subjected Plaintiff
to cruel and unjust hardship in conscious disregard of Plaintiff’s right to be free from violence, or
intimidation by threat of violence, committed against her person on account of her sex and/or gender,
such as to constitute malice, oppression, or fraud under Civil Code §3294, thereby entitling Plaintiff to
punitive damages in an amount appropriate to punish or make an example of Defendants.
-21COMPLAINT FOR DAMAGESPage 22
132.
In addition to and/or in lieu of Plaintiff’s election, Plaintiff is entitled to receive and hereby
seek statutory damages pursuant to Civil Code §52(b), including actual and exemplary damages, as well
as a civil penalty pursuant to Civil Code §52(b)(2) of $25,000.
133.
Pursuant to Civil Code §52(b)(3), Plaintiff request an award of attorneys’ fees in
prosecuting this action.
ELEVENTH CAUSE OF ACTION
FOR VIOLATION OF THE TOM BANE CIVIL RIGHTS ACT
CIVIL CODE §52.
AGAINST ALL DEFENDANTS
134.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
135.
At all relevant times mentioned in this complaint, the FEHA was in full force and effect
and was binding on Defendants, and each of them. This law requires Defendants to refrain, among other
things, from discriminating against any employee on the basis of race, color, national origin, sex and
gender, and from retaliating against any employee who engages in protected activity. At all times
mentioned in this complaint, Article I, Section 8 of the California Constitution was in full force and effect
and binding on Defendants. This law requires Defendants to refrain from disqualifying a person from
pursuing employment on the basis of race, color, national origin, or sex.
136.
Pursuant to the foregoing laws, Plaintiff had the right to lawful employment free from
violence, threats of violence and intimidation, as well as the right to report to their employer and/or protest
discriminatory and harassing conduct of Plaintiff based upon her sex and/or gender, and in the peaceable
exercise or enjoyment thereof to be free from interference by threats, intimidation, or coercion, or
attempts to interfere by threats, intimidation, or coercion.
137.
As alleged above, Defendants repeatedly interfered with, or attempted to interfere with
Plaintiff’s peaceable exercise and enjoyment of said rights by threats, intimidation, or coercion.
138.
In so doing, Defendants violated the civil rights of Plaintiff, as set forth in the Tom Bane
Civil Rights Act, which is codified in Civil Code §52.1.
-22COMPLAINT FOR DAMAGESPage 23
139.
The damage allegations of Paragraphs 35 through 38, inclusive, are herein incorporated
by reference.
140.
The foregoing conduct of Defendants individually, or by and through their managing
agents, was intended by the Defendants to cause injury to the Plaintiff or was despicable conduct carried
on by the Defendants with a willful and conscious disregard of the rights of Plaintiff or subjected Plaintiff
to cruel and unjust hardship in conscious disregard of Plaintiff’s right to be free from interference by
threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, such as to
constitute malice, oppression, or fraud under Civil Code §3294, thereby entitling Plaintiff to punitive
damages in an amount appropriate to punish or make an example of Defendants.
141.
In addition to and/or in lieu of Plaintiffs’ election, Plaintiff are entitled to receive and
hereby seeks statutory damages pursuant to Civil Code §52(b), including actual and exemplary damages.
142.
Pursuant to Civil Code §52.1(h), Plaintiff requests an award of attorneys’ fees in
prosecuting this action.
TWELFTH CAUSE OF ACTION
FOR COMMON LAW NEGLIGENT SUPERVISION AND RETENTION
AGAINST EMPLOYERS AND DOES 1-20, INCLUSIVE
143.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
144.
An employer is liable for negligent supervision or retention of an employee if the employer
knew or should have known that the employee created a particular risk to others; that the employee
harmed the plaintiffs, and that the employer’s negligence in supervising or retaining the employee was a
substantial factor in causing the plaintiffs’ harm.
145.
Employers owed Plaintiff a duty of reasonable care to supervise their employees and to
take reasonable steps to prevent them from threatening or injuring Plaintiff.
146.
Employers further owed Plaintiff a duty of reasonable care to discharge from employment
employees who had threatened or injured or were reasonably likely to threaten or injure others with whom
they came into contact at work, including Plaintiff.
-23COMPLAINT FOR DAMAGESPage 24
147.
Employers had reason to know that Individual Defendants created a risk or threat of injury
to Plaintiff, as alleged herein, due to, but not limited to, Individual Defendants’ sexual harassment of
Plaintiff, and his solicitation and ratification by Employers.
148.
Employers breached their duties by failing to properly supervise or control Individual
Defendants; and by failing to terminate the employment of Individual Defendants so that Plaintiff could
work in a reasonably safe environment.
149.
The damage allegations of Paragraphs 35 through 38, inclusive, are herein incorporated
by reference.
150.
The foregoing conduct of Defendants, by and through its officers, directors and/or
managing agents, was intended by Defendants to cause injury to the Plaintiff or was despicable conduct
carried on by Defendants with a willful and conscious disregard of the rights of Plaintiff or subjected
Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff’s rights such as to constitute
malice, oppression, or fraud under Civil Code §3294, thereby entitling Plaintiff to punitive damages in
an amount appropriate to punish or make an example of Defendants.
THIRTEENTH CAUSE OF ACTION
FOR WRONGFUL TERMINATION
IN VIOLATION THE PUBLIC POLICY OF THE STATE OF CALIFORNIA
AGAINST ALL DEFENDANTS
151.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
152.
At all relevant times mentioned in this complaint, the FEHA was in full force and effect
and was binding on Defendants. This law requires Defendants to refrain, among other things, from
discriminating against any employee on the basis of gender, sex, and sexual orientation, and from
retaliating against any employee who engages in protected activity.
153.
At all times mentioned in this complaint, it was a fundamental policy of the State of
California that Defendants cannot discriminate and/or retaliate against any employee on the basis of
gender, sex, sexual orientation, and/or engagement in protected activity.
-24COMPLAINT FOR DAMAGESPage 25
154.
Plaintiff believes and thereon alleges that Plaintiff’s gender, sex, sexual orientation and/or,
engagement in protected activity with respect to these protected classes, and/or some combination
thereof, were factors in Defendants’ conduct as alleged hereinabove.
155.
Such discrimination and retaliation, resulting in the wrongful termination of Plaintiff’s
employment on the basis of gender, sex, and sexual orientation, Plaintiff’s complaining of harassment
and discrimination due to these protected classes, Plaintiff’s engagement in protected activity, and/or
some combination of these factors, were a proximate cause in Plaintiff’s damages as stated below.
156.
The above said acts of Defendants constitute violations of the Government Code and the
public policy of the State of California embodied therein as set forth above. Defendants violated these
laws by discriminating and retaliating against Plaintiff and terminating Plaintiff’s employment in
retaliation for exercise of protected rights.
157.
The damage allegations of Paragraphs 35 through 38, inclusive, are herein incorporated
by reference.
The foregoing conduct of Defendants individually, or by and through their officers, directors
and/or managing agents, was intended by the Defendants to cause injury to the Plaintiff or was despicable
conduct carried on by the Defendants with a willful and conscious disregard of the rights of Plaintiff or
subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff’s rights such as to
constitute malice, oppression, or fraud under Civil Code §3294, thereby entitling Plaintiff to punitive
damages in an amount appropriate to punish or make an example of Defendants.
FOURTEENTH CAUSE OF ACTION
FOR FAILURE TO PAY WAGES DUE
LABOR CODE §§201, 1182.12, 1194, 1194.
AGAINST ALL DEFENDANTS
158.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
159.
At all relevant times, Defendants failed and refused to pay Plaintiff wages earned and
required by 8 Code of Regulations §11010, as set forth hereinabove. As alleged herein, Defendants
routinely failed to pay Plaintiff for missed rest breaks.
-25COMPLAINT FOR DAMAGESPage 26
160.
As alleged herein, Plaintiff was not exempt from the requirements of Labor Code §510,
Code of Regulations §11010, and Industrial Welfare Commission Order No. 1-2001.
161.
Plaintiff has been deprived of Plaintiff’s rightfully earned compensation as a direct and
proximate result of Defendants’ failure and refusal to pay said compensation. Plaintiff is entitled to
recover such amounts, plus interest thereon, attorneys’ fees and costs.
FIFTEENTH CAUSE OF ACTION
FOR FAILURE TO PROVIDE REST PERIODS
CAL. LABOR CODE §§226.
AGAINST ALL DEFENDANTS
162.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
163.
Labor Code §226.7 requires an employer to provide every employee with an uninterrupted
rest period of not less than 10 minutes, for every period worked of four hours, or substantial portion
thereof.
164.
In the four years last past, Plaintiff regularly worked in excess of twelve hours per day,
and was thereby entitled to take uninterrupted three 10-minute rest periods on each day of work.
165.
Defendants failed and refused to provide Plaintiff with rest periods, and failed to
compensate Plaintiff for missed rest periods, as required by Labor Code §§226.7 and the applicable
sections of 8 Code of Regulations §11010 and Industrial Welfare Commission Order No. 1-2001, as
follows:
c.
From approximately January 25, 2021 to approximately June 30, 2021, Plaintiff
was deprived of one or more of Plaintiff’s statutory 10-minute rest periods on approximately five (5) days
per week for approximately 22 weeks, or on approximately 110 days.
166.
As alleged herein, Plaintiff is not exempt from the rest break requirements of 8 Code of
Regulations §11010 and Industrial Welfare Commission Order No. 1-2001. Consequently, Plaintiff is
owed one hour of pay at Plaintiff’s regular hourly rate, or the requisite minimum wage, whichever is
greater, for each day that Plaintiff was denied such rest periods, calculated as follows:
-26COMPLAINT FOR DAMAGESPage 27 d.
From approximately January 25, 2021 to June 30, 2021, Defendants failed to
provide Plaintiff with the statutory rest period on approximately 110 separate days. Consequently,
Plaintiff is owed one hour of pay at $23.10 for each day, or approximately $2,541.00, plus interest
thereon, for unpaid rest periods.
167.
approximately $2,541.00.
168.
Thus, the total missed rest period compensation owing Plaintiff for this time period is
Plaintiff has been deprived of Plaintiff’s rightfully earned compensation for rest breaks as
a direct and proximate result of Defendants’ failure and refusal to pay said compensation.
169.
Thus, for the entirety of the time periods set forth above, Plaintiff is entitled to recover
such amounts in the combined amount of $2,541.00, pursuant to Labor Code §226.7(b), plus interest
thereon and costs of suit.
SIXTEENTH CAUSE OF ACTION
FOR FAILURE TO PROVIDE ITEMIZED WAGE AND HOUR STATEMENTS
LABOR CODE §§226, ET SEQ.
AGAINST ALL DEFENDANTS
170.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
171.
Pursuant to Labor Code §§226 and 1174, employers have a duty to provide their non-
exempt employees with itemized statements showing total hours worked, hourly wages, gross wages,
total deductions and net wages earned. An employer who violates these code sections is liable to its
employees for the greater of actual damages suffered by the employee, or, $50.00 in civil penalties for
the initial pay period in which a violation occurred, and $100.00 per employee for each subsequent pay
period, up to a statutory maximum of $4,000.00. Pursuant to Labor Code §226(e)(2), an employee is
deemed to suffer injury for purposes of this subdivision if the employer fails to provide a wage statement
at all.
172.
At all relevant times, Defendants failed to provide the Plaintiff with timely and accurate
wage and hour statements showing gross wages earned, total hours worked, all deductions made, net
wages earned, the name and address of the legal entity employing Plaintiff, and all applicable hours and
-27COMPLAINT FOR DAMAGESPage 28
rates in effect during each pay period and the corresponding number of hours worked at each hourly rate
by Plaintiff. Not one of the paystubs that Plaintiff received complied with Labor Code §226.
173.
As alleged herein, Plaintiff is not exempt from the requirements of Labor Code §226.
174.
This failure has injured Plaintiff, by misrepresenting and depriving Plaintiff of hour, wage,
and earnings information to which Plaintiff is entitled, causing Plaintiff difficulty and expense in
attempting to reconstruct time and pay records, causing Plaintiff not to be paid wages Plaintiff is entitled
to, causing Plaintiff to be unable to rely on earnings statements in dealings with third parties, eviscerating
Plaintiff’s right under Labor Code §226(b) to review itemized wage statement information by inspecting
the employer’s underlying records, and deceiving Plaintiff regarding Plaintiff’s entitlement to rest period
compensation and/or wages.
175.
Plaintiff was paid on a bi-weekly basis, and therefore Defendants violated Labor Code
§226 approximately 55 times during the Plaintiff’s employment. Consequently, Defendants are liable to
Plaintiff for Plaintiff’s actual damages, or penalties up to the statutory maximum amount of $4,000.00,
whichever is greater.
176.
Based on Defendants’ conduct as alleged herein, Defendants are liable for damages and
statutory penalties pursuant to Labor Code §226, and other applicable provisions, as well as attorneys’
fees and costs.
SEVENTEENTH CAUSE OF ACTIONFOR WAITING TIME PENALTIES
LABOR CODE §§201-
AGAINST ALL DEFENDANTS
177.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
178.
At all relevant times, Defendants failed to pay all of the Plaintiff’s accrued wages and
other compensation due immediately upon termination or within 72 hours of resignation, as required.
These wages refer to, at a minimum, unpaid minimum wages, overtime compensation, and meal and rest
period compensation that Defendants should have paid, but did not pay to Plaintiff during the term of
Plaintiff’s employment and which were, at the latest, due within the time restraints of Labor Code §§201-
203.
-28COMPLAINT FOR DAMAGESPage 29
179.
As alleged herein, Plaintiff is not exempt from the requirements of Labor Code §§201-
180.
As a direct and proximate result of Defendants’ willful failure to pay these wages, Plaintiff
203.
is entitled to payment of Plaintiff’s rest periods as previously pleaded herein, and more than $9,702.00 in
wait time penalties, calculated based on 30 days of Plaintiff’s daily wage rate of approximately $323.40,
inclusive of overtime.
181.
Based on Defendants’ conduct as alleged herein, Defendants are liable for $9,702.00 in
statutory penalties pursuant to Labor Code §203 and other applicable provisions, as well as attorneys’
fees and costs.
EIGHTEENTH CAUSE OF ACTION
UNFAIR COMPETITION
BUSINESS & PROFESSIONS CODE §§17200, ET SEQ.
AGAINST ALL DEFENDANTS
182.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
183.
Defendants’ violations of 8 Code of Regulations §11010, Industrial Welfare Commission
Order No. 1-2001, Labor Code §§201-203, 226, 226.7, 1182.12, 1194, 1194.2, and other applicable
provisions, as alleged herein, including Defendants’ failure to pay wages due, Defendants’ failure to
provide rest breaks, Defendants’ failure to provide timely and accurate wage and hour statements,
Defendants’ failure to pay compensation due in a timely manner upon termination or resignation, and
Defendants’ failure to maintain complete and accurate payroll records for the Plaintiff, constitute unfair
business practices in violation of Business & Professions Code §§17200, et seq.
184.
As a result of Defendants’ unfair business practices, Defendants have reaped unfair
benefits and illegal profits at the expense of Plaintiff and members of the public. Defendants should be
made to disgorge their ill-gotten gains and restore such monies to Plaintiff.
185.
Defendants’ unfair business practices entitle Plaintiff to seek preliminary and permanent
injunctive relief, including but not limited to orders that the Defendants account for, disgorge, and restore
-29COMPLAINT FOR DAMAGESPage 30
to the Plaintiff the overtime compensation and other monies and benefits unlawfully withheld from
Plaintiff.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff seeks judgment against Defendants and each of them, in an amount
according to proof as follows:
1.
For a money judgment representing compensatory damages including lost wages,
earnings, commissions, retirement benefits, and other employee benefits, and all other sums of money,
together with interest on these amounts; for other special damages; and for general damages for mental
pain and anguish and emotional distress and loss of earning capacity;
2.
For payment of rest period compensation pursuant to Labor Code §226.7, in the amount
of no less than $2,541.00;
3.
For damages pursuant to Labor Code §226 in the amount of no less than $4,000.00;
4.
For waiting time penalties pursuant to Labor Code §§201-203 in the amount of no less
than $9,702.00;
5.
For prejudgment interest on each of the foregoing at the legal rate from the date the
obligation became due through the date of judgment in this matter.
WHEREFORE, Plaintiff further seeks judgment against Defendants, and each of them, in an
amount according to proof, as follows:
6.
For a declaratory judgment reaffirming Plaintiff’s equal standing under the law and
condemning Defendants’ discriminatory practices;
7.
For injunctive relief barring Defendants’ discriminatory employment policies and
practices in the future, and restoring Plaintiff to Plaintiff’s former position with Defendants;
8.
For punitive damages, pursuant to Civil Code §§3294 in amounts sufficient to punish
Defendants for the wrongful conduct alleged herein and to deter such conduct in the future;
9.
For costs of suit, attorneys’ fees, and expert witness fees pursuant to the FEHA and/or any
other basis;
-30COMPLAINT FOR DAMAGESPage 31
10.
For injunctive relief compelling Defendants to report to federal and state authorities wages
earned by Plaintiff, and other employees, and pay all state and federal taxes owing, employer matching
funds, unemployment premiums, social security, Medicare, and workers' compensation premiums, all
this in an amount according to the proof;
11.
For restitutionary disgorgement of profits garnered as a result of Defendants’ unlawful
conduct , and failure to pay wages and other compensation in accordance with the law;
12.
For post-judgment interest; and
13.
For any other relief that is just and proper.
DATED: June 30,
LAW OFFICES OF RAMIPHCTDUNESSI
A PROFESSIONAL LA\V CORPORATION
By: /
/
Ramin R. Younessi, Esff.
Attorney for Plaintiff [
MARGARITA VARGAS
JURY TRIAL DEMANDED
Plaintiff demands trial of all issues by jury.
DATED: June 30,
LAW OFFICES OF RAtfllN R. YOUNESSI
A PROFESSIONAL LAW CORPORATION
By:
/
_
’
Ramin R. Younessi, Esq .
Attorney for Plaintiff
MARGARITA VARGAS
-31COMPLAINT FOR DAMAGES
PDF Page 1
PlainSite Cover Page
PDF Page 2
1
2
3
4
5
Ramin R. Younessi, Esq. (SBN 175020)
LAW OFFICES OF RAMIN R. YOUNESSI
A PROFESSIONAL LAW CORPORATION
3435 Wilshire Boulevard, Suite 2200
Los Angeles, California 90010
Telephone: (213) 480-6200
Facsimile: (213) 480-6201
Attorney for Plaintiff,
MARGARITA VARGAS
6
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF ALAMEDA, HAYWARD HALL OF JUSTICE
10
11
MARGARITA VARGAS, an individual,
Plaintiff,
12
13
14
15
16
17
18
19
Case No.
COMPLAINT FOR DAMAGES FOR:
v.
1. DISCRIMINATION IN VIOLATION OF
GOV’T CODE §§12940 ET SEQ.;
TESLA MOTORS, INC., a Delaware
corporation; TESLA, INC., a Delaware
corporation; VOLT INFORMATION
SCIENCES, INC., a New York corporation;
VOLT MANAGEMENT CORP., a Delaware
corporation; ANDREW DOE, an individual;
PEDRO DOE, an individual; KAI DOE, an
individual; MONA DOE, an individual; and
DOES 1 through 20, inclusive,
Defendants.
2. HARASSMENT IN VIOLATION OF
GOV’T CODE §§12940 ET SEQ.;
3. RETALIATION IN VIOLATION OF
GOV’T CODE §§12940 ET SEQ.;
4. FAILURE TO PREVENT
DISCRIMINATION, HARASSMENT AND
RETALIATION IN VIOLATION OF
GOV’T CODE §12940(k);
20
5. FOR DECLARATORY JUDGMENT;
21
6. BATTERY;
22
7. ASSAULT;
23
8. SEXUAL BATTERY (CIVIL CODE
§1708.5);
24
25
26
27
28
9. GENDER VIOLENCE (CIVIL CODE §
52.4);
10. VIOLATION OF THE RALPH CIVIL
RIGHTS ACT (CIVIL CODE §51.7);
11. VIOLATION OF THE TOM BANE CIVIL
RIGHTS ACT (CIVIL CODE §52.1);
-1COMPLAINT FOR DAMAGES
PDF Page 3
1
12. NEGLIGENT SUPERVISION AND
RETENTION;
2
13. WRONGFUL TERMINATION IN
VIOLATION OF PUBLIC POLICY
3
4
14. FAILURE TO PAY WAGES (CAL. LABOR
CODE §§201, 1194);
5
15. FAILURE TO PROVIDE REST PERIODS
(CAL. LABOR CODE §§226.7);
6
7
16. FAILURE TO PROVIDE ITEMIZED
WAGE AND HOUR STATEMENTS (CAL.
LABOR CODE §§226, ET SEQ.);
8
9
17. WAITING TIME PENALTIES (CAL.
LABOR CODE §§201-203); AND
10
18. UNFAIR COMPETITION (BUS. & PROF.
CODE §17200 ET SEQ.);
11
12
13
DEMAND OVER $25,000
14
15
16
[DEMAND FOR JURY TRIAL]
COMES NOW PLAINTIFF, MARGARITA VARGAS, and for causes of action against the
Defendants and each of them, alleges as follows:
17
JURISDICTION
18
19
1.
This Court is the proper court, and this action is properly filed in Alameda County, because
20
Defendants’ obligations and liability arise therein, because Defendants maintain offices and transact
21
business within Alameda County, and because the work that is the subject of this action was performed
22
by Plaintiff in Alameda County.
23
THE PARTIES
24
25
26
27
28
2.
Plaintiff, MARGARITA VARGAS, is and at all times relevant hereto was a resident of
the County of Alameda, State of California.
3.
Plaintiff is informed and believes, and based thereupon alleges, that at all times relevant
hereto, Defendant TESLA MOTORS, INC. (hereinafter referred to as “TESLA MOTORS”) was and is
-2COMPLAINT FOR DAMAGES
PDF Page 4
1
a Delaware corporation doing business at 45500 Fremont Blvd., in the City of Fremont, in the County of
2
Alameda, State of California.
4.
3
Plaintiff is informed and believes, and based thereupon alleges, that at all times relevant
4
hereto, Defendant TESLA, INC. (hereinafter referred to as “TESLA”) was and is a Delaware corporation
5
doing business at 45500 Fremont Blvd., in the City of Fremont, in the County of Alameda, State of
6
California.
5.
7
Plaintiff is informed and believes, and based thereupon alleges, that at all times relevant
8
hereto, Defendant VOLT INFORMATION SCIENCES, INC. (hereinafter referred to as “VOLT
9
INFORMATION”) was and is a New York corporation doing business at 45500 Fremont Blvd., in the
10
City of Fremont, in the County of Alameda, State of California.
6.
11
Plaintiff is informed and believes, and based thereupon alleges, that at all times relevant
12
hereto,
13
MANAGEMENT”) was and is a Delaware corporation doing business at 45500 Fremont Blvd., in the
14
City of Fremont, in the County of Alameda, State of California.
15
16
17
18
19
Defendant
7.
VOLT
MANAGEMENT
CORP.
(hereinafter
referred
to
as
“VOLT
Defendants TESLA MOTORS, TESLA, VOLT INFORMATION, and VOLT
MANAGEMENT are hereinafter collectively referred to as “Employers.”
8.
Plaintiff is informed and believes, and based thereupon alleges, that at all times relevant
hereto, Employers owned and operated a private automobile manufacturing and finishing plant.
9.
At all times relevant herein, Employers and DOES 1-20 were Plaintiff’s employers, joint
20
employers and/or special employers within the meaning of Government Code §§12926, subdivision (d),
21
12940, subdivisions (a),(h),(1), (h)(3)(A), and (i), and 12950, and regularly employ five (5) or more
22
persons and are therefore subject to the jurisdiction of this Court.
23
10.
At all times relevant herein, Employers and DOES 1-20 were Plaintiff’s employers, joint
24
employers and/or special employers within the meaning of the Labor Code and Industrial Welfare
25
Commission Order No. 1-2001 and are each an “employer or other person acting on behalf of an
26
employer” as such term is used in Labor Code section 558, and liable to Plaintiff on that basis.
27
28
11.
Plaintiff is informed and believes, and based thereupon alleges, that at all times relevant
hereto, Defendants ANDREW DOE, PEDRO DOE, KAI DOE AND MONA DOE, were and are
-3COMPLAINT FOR DAMAGES
PDF Page 5
1
individual residents of the County of Alameda, State of California, and are hereinafter individually
2
referred to by their name and collectively referred to as the “Individual Defendants.” The Individual
3
Defendants were Employers’ managers, corporate agents, supervisors, and/or employees.
4
5
6
12.
Individual Defendants
and Employers are collectively referred to hereinafter
interchangeably as “Employers” or “Defendants”.
13.
The true names and capacities, whether individual, corporate, associate, or otherwise, of
7
the Defendants named herein as DOES 1-20, inclusive, are unknown to Plaintiff at this time and therefore
8
said Defendants are sued by such fictitious names. Plaintiff will seek leave to amend this complaint to
9
insert the true names and capacities of said Defendants when the same become known to Plaintiff.
10
Plaintiff is informed and believes, and based thereupon alleges, that each of the fictitiously named
11
Defendants is responsible for the wrongful acts alleged herein, and is therefore liable to Plaintiff as
12
alleged hereinafter.
13
14.
Plaintiff is informed and believes, and based thereupon alleges, that at all times relevant
14
hereto, Defendants, and each of them, were the agents, employees, managing agents, supervisors,
15
coconspirators, parent corporation, joint employers, alter egos, successors, and/or joint ventures of the
16
other Defendants, and each of them, and in doing the things alleged herein, were acting at least in part
17
within the course and scope of said agency, employment, conspiracy, joint employer, alter ego status,
18
successor status and/or joint venture and with the permission and consent of each of the other Defendants.
19
15.
Plaintiff is informed and believes, and based thereupon alleges, that Defendants, and each
20
of them, including those defendants named as DOES 1-20, acted in concert with one another to commit
21
the wrongful acts alleged herein, and aided, abetted, incited, compelled and/or coerced one another in the
22
wrongful acts alleged herein, and/or attempted to do so, including pursuant to Government Code
23
§12940(i). Plaintiff is further informed and believes, and based thereupon alleges, that Defendants, and
24
each of them, including those defendants named as DOES 1-20, and each of them, formed and executed
25
a conspiracy or common plan pursuant to which they would commit the unlawful acts alleged herein,
26
with all such acts alleged herein done as part of and pursuant to said conspiracy, intended to cause and
27
actually causing Plaintiff harm.
28
-4COMPLAINT FOR DAMAGES
PDF Page 6
16.
1
Whenever and wherever reference is made in this complaint to any act or failure to act by
2
a Defendant or co-Defendant, such allegations and references shall also be deemed to mean the acts
3
and/or failures to act by each Defendant acting individually, jointly and severally.
17.
4
Plaintiff has filed complaints of discrimination, harassment, retaliation, failure to prevent
5
discrimination, retaliation or harassment, and wrongful termination under Government Code §§12940, et
6
seq., the California Fair Employment and Housing Act (“FEHA”) with the California Civil Rights
7
Department and has satisfied Plaintiff’s administrative prerequisites with respect to these and all related
8
filings.
9
ALTER EGO, AGENCY, SUCCESSOR AND JOINT EMPLOYER
10
11
18.
Plaintiff is informed and believes, and based thereon alleges, that there exists such a unity
12
of interest and ownership between Employers and DOES 1-20 that the individuality and separateness of
13
defendants have ceased to exist.
14
19.
Plaintiff is informed and believes, and based thereon alleges, that despite the formation of
15
purported corporate existence, Employers and DOES 1-20 are, in reality, one and the same, including,
16
but not limited to because:
17
a.
Employers are completely dominated and controlled by one another and DOES 1-
18
20, who personally committed the frauds and violated the laws as set forth in this complaint, and who
19
have hidden and currently hide behind Defendants to perpetrate frauds, circumvent statutes, or
20
accomplish some other wrongful or inequitable purpose.
21
b.
Employers and DOES 1-20 derive actual and significant monetary benefits by and
22
through one another’s unlawful conduct, and by using one another as the funding source for their own
23
personal expenditures.
24
c.
Employers and DOES 1-20, while really one and the same, were segregated to
25
appear as though separate and distinct for purposes of perpetrating a fraud, circumventing a statute, or
26
accomplishing some other wrongful or inequitable purpose.
27
28
d.
Employers do not comply with all requisite corporate formalities to maintain a
legal and separate corporate existence.
-5COMPLAINT FOR DAMAGES
PDF Page 7
e.
1
The business affairs of Employers and DOES 1-20 are, and at all times relevant
2
were, so mixed and intermingled that the same cannot reasonably be segregated, and the same are in
3
inextricable confusion. Employers are, and at all times relevant hereto were, used by one another and
4
DOES 1-20 as a mere shell and conduit for the conduct of certain of Defendants’ affairs, and are, and
5
were, the alter ego of one another and DOES 1-20. The recognition of the separate existence of
6
Defendants would not promote justice, in that it would permit Defendants to insulate themselves from
7
liability to Plaintiff for violations of the Government Code and other statutory violations. The corporate
8
existence of Employers and DOES 1-20 should be disregarded in equity and for the ends of justice
9
because such disregard is necessary to avoid fraud and injustice to Plaintiff herein.
10
11
12
20.
Accordingly, Employers constitute the alter ego of one another and DOES 1-20, and the
fiction of their separate corporate existence must be disregarded.
21.
As a result of the aforementioned facts, Plaintiff is informed and believes, and based
13
thereon alleges that Employers and DOES 1-20 are Plaintiff’s joint employers by virtue of a joint
14
enterprise, and that Plaintiff was an employee of Employers and DOES 1-20. Plaintiff performed services
15
for each and every one of Defendants, and to the mutual benefit of all Defendants, and all Defendants
16
shared control of Plaintiff as an employee, either directly or indirectly, and the manner in which
17
Defendants’ business was and is conducted.
18
22.
Alternatively, Plaintiff is informed and believes and, based thereupon alleges, that as and
19
between DOES 1-20, Employer, or any of them, (1) there is an express or implied agreement of
20
assumption pursuant to which Employers and/or DOES 1-20 agreed to be liable for the debts of the other
21
Defendants, (2) the transaction between Employers and/or DOES 1-20 and the other Defendants amounts
22
to a consolidation or merger of the two corporations, (3) Employers and/or DOES 1-20 are a mere
23
continuation of the other Defendants, or (4) the transfer of assets to Employers and/or DOES 1-20 is for
24
the fraudulent purpose of escaping liability for Defendants’ debts. Accordingly, Employers and/or DOES
25
1-20 are the successors of one or more of the other Defendants and are liable on that basis.
26
27
28
-6COMPLAINT FOR DAMAGES
PDF Page 8
1
FACTUAL ALLEGATIONS
23.
2
On or about January 25, 2021, Employers hired Plaintiff to work as an assembly worker.
3
Plaintiff was a full-time, non-exempt employee, and performed all of Plaintiff’s job duties satisfactorily
4
before Plaintiff was wrongfully terminated on or about June 30, 2021.
24.
5
Between January 25, 2021 and June 30, 2021, Plaintiff’s hourly wage rate was $23.10.
6
During this time, Plaintiff’s schedule was approximately 5 days per week, for approximately 12 hours
7
per day.
25.
8
Throughout Plaintiff’s employment, Plaintiff was not permitted to, and not advised of
9
Plaintiff’s right to take statutory 10-minute rest breaks for every four hours worked or substantial portion
10
thereof. One or more of Plaintiff’s 10-minute rest breaks were not provided approximately 5 days per
11
week.
12
13
14
26.
Throughout Plaintiff’s employment, Plaintiff was harassed by Andrew Doe, Pedro Doe,
Kai Doe and Mona Doe.
27.
During Plaintiff’s employment, Pedro Doe asked Plaintiff if Plaintiff would have sex with
15
a man who looked like a woman, if Plaintiff would have sex with another employee, about Plaintiff’s
16
sexual orientation, if Plaintiff would have sex with a guy for money, how much money would it take for
17
Plaintiff to have sex with a guy, if Plaintiff ever had a boyfriend, how girls have sex with each other, if
18
Plaintiff would have sex with Pedro Doe or Pedro Doe’s wife. Pedro Doe also told Plaintiff that if Plaintiff
19
wanted to get ahead at Employer, Plaintiff would have to suck a penis and for Plaintiff to get the knee
20
pads out. Pedro Doe also cornered Plaintiff, blocked Plaintiff, and pressed his body against Plaintiff’s
21
body. Plaintiff immediately resisted by yelling at Pedro Doe to move away. Plaintiff always declined
22
Pedro Doe’s advances.
23
28.
Plaintiff reported Pedro Doe’s actions to Plaintiff’s supervisor, to a lead at Employer, and
24
to Employers’ Human Resources (“HR”) Department. Plaintiff’s supervisor told Plaintiff that he would
25
look into the matter and take care of it, however, nothing happened. Employers’ HR Department only
26
offered Plaintiff to be moved away to a new area of work but did not investigate or take any action
27
regarding the incidences that Plaintiff reported.
28
-7COMPLAINT FOR DAMAGES
PDF Page 9
1
29.
During Plaintiff’s employment, Andrew Doe groped Plaintiff’s breasts, squeezed
2
Plaintiff’s buttocks and put his hand over Plaintiff’s vagina. Plaintiff immediately resisted by backing
3
away. At all relevant times, Plaintiff declined Andrew Doe’s advances. Plaintiff reported Andrew Doe’s
4
actions to her lead at Employers, and to Employers’ HR Department. However, no action was taken to
5
aid Plaintiff.
6
30.
Throughout Plaintiff’s employment, Kai Doe sexually harassed Plaintiff by following
7
Plaintiff around and waiting for Plaintiff outside the women’s bathroom. At all relevant times, Plaintiff
8
declined Kai Doe’s advances. Plaintiff reported Kai Doe’s actions to the Employers’ HR department.
9
Then, Kai Doe obtained Plaintiff’s cellphone number from another employee and started sending Plaintiff
10
text messages, which terrified Plaintiff.
11
department. When Plaintiff would decline Kai Doe’s advances, Kai Doe threatened Plaintiff by opening
12
his bag and showing Plaintiff his gun and told Plaintiff that he carried the gun every day to work. During
13
Plaintiff’s employment, Kai Doe hugged Plaintiff from behind, kissed her on the cheek, attempted to hold
14
Plaintiff’s hand, and tried to kiss Plaintiff on the lips but Plaintiff immediately resisted by turning away
15
and stopped him from continuing his sexual advances.
16
31.
Plaintiff again reported Kai Doe to the Employers’ HR
During Plaintiff’s employment, on two occasions, Mona Doe choked Plaintiff, picked
17
Plaintiff up by her neck and held Plaintiff off the ground. Mona Doe choked Plaintiff in front of Plaintiff’s
18
supervisor and another employees but no one helped Plaintiff. Plaintiff immediately resisted by yelling
19
at Mona Doe to stop touching Plaintiff and confronted Mona Doe.
20
32.
Shortly thereafter, Employers wrongfully terminated Plaintiff on or about June 30, 2021.
21
33.
Plaintiff’s termination was substantially motivated by Plaintiff’s gender, sex, sexual
22
orientation, and/or engagement in protected activities. Defendants’ discriminatory animus is evidenced
23
by the previously mentioned facts.
24
34.
Defendants’ conduct described herein was undertaken, authorized, and/or ratified
25
Defendants’ officers, directors and/or managing agents, including, but not limited to Jonathan Doe,
26
Randy Doe, Elle Doe and George Doe, and those identified herein as DOES 1 through 20, who were
27
authorized and empowered to make decisions that reflect and/or create policy for Defendants. The
28
aforementioned conduct of said managing agents and individuals was therefore undertaken on behalf of
-8COMPLAINT FOR DAMAGES
PDF Page 10
1
Defendants who further had advanced knowledge of the actions and conduct of said individuals whose
2
actions and conduct were ratified, authorized, and approved by managing agents whose precise identities
3
are unknown to Plaintiff at this time and are therefore identified and designated herein as DOES 1 through
4
20, inclusive.
35.
5
As a result of Defendants’ actions, Plaintiff has suffered and will continue to suffer general
6
and special damages, including severe and profound pain and emotional distress, anxiety, depression,
7
headaches, tension, and other physical ailments, as well as medical expenses, expenses for psychological
8
counseling and treatment, and past and future lost wages and benefits.
36.
9
10
commissions, benefits and loss or diminution of earning capacity.
37.
11
12
As a result of the above, Plaintiff is entitled to past and future lost wages, bonuses,
Plaintiff claims general damages for emotional and mental distress and aggravation in a
sum in excess of the jurisdictional minimum of this Court.
38.
13
Because the acts taken toward Plaintiff were carried out by officers, directors and/or
14
managing agents acting in a deliberate, cold, callous, cruel and intentional manner, in conscious disregard
15
of Plaintiff’s rights and in order to injure and damage Plaintiff, Plaintiff requests that punitive damages
16
be levied against Defendants and each of them, in sums in excess of the jurisdictional minimum of this
17
Court.
18
19
FIRST CAUSE OF ACTION
20
FOR DISCRIMINATION IN VIOLATION OF GOV’T CODE §§12940 ET SEQ.
21
AGAINST ALL DEFENDANTS
22
23
24
25
26
27
39.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
40.
At all times hereto, the FEHA was in full force and effect and was binding upon
Defendants and each of them.
41.
As such term is used under FEHA, “on the bases enumerated in this part” means or refers
to discrimination on the bases of one or more of the protected characteristics under FEHA.
28
-9COMPLAINT FOR DAMAGES
PDF Page 11
1
42.
FEHA requires Defendants to refrain from discriminating against an employee on the
2
basis of gender, sex, sexual orientation, and to prevent discrimination and harassment on the basis of
3
gender. sex, sexual orientation and engagement in protected activities from occurring.
4
43.
5
sexual orientation.
6
44.
7
8
9
10
11
Plaintiff was a member of multiple protected classes as a result of her gender, sex and
At all times relevant hereto, Plaintiff was performing competently in the position Plaintiff
held with Defendants.
45.
Plaintiff suffered the adverse employment actions of unlawful harassment, discrimination,
failure to investigate, remedy, and/or prevent discrimination, failure to reinstate and/or return to work,
and constructive termination, and was harmed thereby.
46.
Plaintiff is informed and believes that Plaintiff’s gender, sex, sexual orientation, and/or
12
some combination of these protected characteristics under Government Code §12926(j) were motivating
13
reasons and/or factors in the decisions to subject Plaintiff to the aforementioned adverse employment
14
actions.
15
16
17
18
19
47.
Said conduct violates the FEHA, and such violations were a proximate cause in Plaintiff’s
damage as stated below.
48.
The damage allegations of Paragraphs 35 through 38, inclusive, are herein incorporated
by reference.
49.
The foregoing conduct of Defendants individually, or by and through their officers,
20
directors and/or managing agents, was intended by the Defendants to cause injury to the Plaintiff or was
21
despicable conduct carried on by the Defendants with a willful and conscious disregard of the rights of
22
Plaintiff or subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff’s rights
23
such as to constitute malice, oppression, or fraud under Civil Code §3294, thereby entitling Plaintiff to
24
punitive damages in an amount appropriate to punish or make an example of Defendants.
25
26
50.
Pursuant to Government Code §12965(b), Plaintiff requests a reasonable award of
attorneys’ fees and costs, including expert fees pursuant to the FEHA.
27
28
-10COMPLAINT FOR DAMAGES
PDF Page 12
1
SECOND CAUSE OF ACTION
2
FOR HARASSMENT IN VIOLATION OF GOV’T CODE §§12940 ET SEQ.
3
AGAINST ALL DEFENDANTS
4
5
6
7
8
9
10
51.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
52.
At all times hereto, the FEHA was in full force and effect and was binding upon
Defendants and each of them.
53.
As such term is used under FEHA, “on the bases enumerated in this part” means or refers
to harassment on the bases of one or more of the protected characteristics under FEHA.
54.
These laws set forth in the preceding paragraph require Defendants to refrain from
11
harassing, or creating, or maintaining a hostile work environment against an employee based upon the
12
employee’s gender, sex, sexual orientation, and engagement in protected activities, as set forth
13
hereinabove.
14
55.
Defendants’ harassing conduct was severe or pervasive, was unwelcome by Plaintiff, and
15
a reasonable person in Plaintiff’s circumstances would have considered the work environment to be
16
hostile or abusive.
17
56.
Defendants violated the FEHA and the public policy of the State of California which is
18
embodied in the FEHA by creating a hostile work environment and harassing Plaintiff because of
19
Plaintiff’s gender, sex, sexual orientation, engagement in protected activities, and/or some combination
20
of these protected characteristics, as set forth hereinabove.
21
22
23
57.
The above said acts were perpetrated upon Plaintiff by a supervisor, and/or Defendants
knew or should have known of the conduct but failed to take immediate and appropriate corrective action.
58.
The above said acts of Defendants constitute violations of the FEHA and violations of the
24
public policy of the State of California. Such violations were a proximate cause in Plaintiff’s damage as
25
stated below.
26
27
59.
The damage allegations of Paragraphs 35 through 38, inclusive, are herein incorporated
by reference.
28
-11COMPLAINT FOR DAMAGES
PDF Page 13
1
60.
The foregoing conduct of Defendants individually, or by and through their officers,
2
directors and/or managing agents, was intended by the Defendants to cause injury to the Plaintiff or was
3
despicable conduct carried on by the Defendants with a willful and conscious disregard of the rights of
4
Plaintiff or subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff’s rights
5
such as to constitute malice, oppression, or fraud under Civil Code §3294, thereby entitling Plaintiff to
6
punitive damages in an amount appropriate to punish or make an example of Defendants.
7
8
61.
Pursuant to Government Code §12965(b), Plaintiff requests a reasonable award of
attorneys’ fees and costs, including expert fees pursuant to the FEHA.
9
10
THIRD CAUSE OF ACTION
11
FOR RETALIATION IN VIOLATION OF GOV’T CODE §§12940 ET SEQ.
12
AGAINST ALL DEFENDANTS
13
14
15
16
17
18
19
62.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
63.
At all times hereto, the FEHA was in full force and effect and was binding upon
Defendants and each of them.
64.
These laws set forth in the preceding paragraph require Defendants to refrain from
retaliating against an employee for engaging in protected activity.
65.
Plaintiff engaged in the protected activities of complaining about and protesting
20
Defendants’ discriminatory and harassing conduct towards Plaintiff based upon her gender, sex and
21
sexual orientation.
22
66.
Plaintiff suffered the adverse employment actions of unlawful harassment, discrimination,
23
failure to investigate, remedy, and/or prevent discrimination, failure to reinstate and/or return to work,
24
and constructive termination, and was harmed thereby.
25
67.
Plaintiff is informed and believes that Plaintiff’s conduct of complaining about and
26
protesting Defendants’ discriminatory and harassing conduct, and/or some combination of these factors,
27
were motivating reasons and/or factors in the decisions to subject Plaintiff to the aforementioned adverse
28
employment actions.
-12COMPLAINT FOR DAMAGES
PDF Page 14
1
2
3
68.
Defendants violated the FEHA by retaliating against Plaintiff and terminating Plaintiff for
attempting to exercise Plaintiff’s protected rights, as set forth hereinabove.
69.
Plaintiff is informed and believes, and based thereon alleges, that the above acts of
4
retaliation committed by Defendants were done with the knowledge, consent, and/or ratification of, or at
5
the direction of, each other Defendant and the other Managers.
6
7
8
9
10
70.
The above said acts of Defendants constitute violations of the FEHA, and were a
proximate cause in Plaintiff’s damage as stated below.
71.
The damage allegations of Paragraphs 35 through 38, inclusive, are herein incorporated
by reference.
72.
The foregoing conduct of Defendants individually, or by and through their officers,
11
directors and/or managing agents, was intended by the Defendants to cause injury to the Plaintiff or was
12
despicable conduct carried on by the Defendants with a willful and conscious disregard of the rights of
13
Plaintiff or subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff’s rights
14
such as to constitute malice, oppression, or fraud under Civil Code §3294, thereby entitling Plaintiff to
15
punitive damages in an amount appropriate to punish or make an example of Defendants.
16
17
73.
Pursuant to Government Code §12965(b), Plaintiff requests a reasonable award of
attorneys’ fees and costs, including expert fees pursuant to the FEHA.
18
19
FOURTH CAUSE OF ACTION
20
FAILURE TO PREVENT DISCRIMINATION, HARASSMENT, AND RETALIATION
21
IN VIOLATION OF GOV’T CODE §12940(k)
22
AGAINST ALL DEFENDANTS
23
24
25
74.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
75.
At all times hereto, the FEHA, including in particular Government Code §12940(k), was
26
in full force and effect and was binding upon Defendants. This subsection imposes a duty on Defendants
27
to take all reasonable steps necessary to prevent discrimination, harassment, and retaliation from
28
-13COMPLAINT FOR DAMAGES
PDF Page 15
1
occurring. As alleged above, Defendants violated this subsection and breached their duty by failing to
2
take all reasonable steps necessary to prevent discrimination, harassment and retaliation from occurring.
3
4
5
6
7
76.
The above said acts of Defendants constitute violations of the FEHA, and were a
proximate cause in Plaintiff’s damage as stated below.
77.
The damage allegations of Paragraphs 35 through 38, inclusive, are herein incorporated
by reference.
78.
The foregoing conduct of Defendants individually, or by and through their officers,
8
directors and/or managing agents, was intended by the Defendants to cause injury to the Plaintiff or was
9
despicable conduct carried on by the Defendants with a willful and conscious disregard of the rights of
10
Plaintiff or subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff’s rights
11
such as to constitute malice, oppression, or fraud under Civil Code §3294, thereby entitling Plaintiff to
12
punitive damages in an amount appropriate to punish or make an example of Defendants.
13
14
79.
Pursuant to Government Code §12965(b), Plaintiff requests a reasonable award of
attorneys’ fees and costs, including expert fees pursuant to the FEHA.
15
16
FIFTH CAUSE OF ACTION
17
FOR DECLARATORY JUDGMENT
18
AGAINST ALL DEFENDANTS
19
20
21
22
23
24
25
26
27
28
80.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
81.
Government Code §12920 sets forth the public policy of the State of California as follows:
It is hereby declared as the public policy of this state that it is necessary to
protect and safeguard the right and opportunity of all persons to seek,
obtain, and hold employment without discrimination or abridgment on
account of race, religious creed, color, national origin, ancestry, physical
disability, mental disability, medical condition, genetic information,
marital status, sex, gender, gender identity, gender expression, age, or
sexual orientation.
It is recognized that the practice of denying employment opportunity and
discriminating in the terms of employment for these reasons foments
domestic strife and unrest, deprives the state of the fullest utilization of its
capacities for development and advancement, and substantially and
adversely affects the interests of employees, employers, and the public in
general.
-14COMPLAINT FOR DAMAGES
PDF Page 16
Further, the practice of discrimination because of race, color, religion,
sex, gender, gender identity, gender expression, sexual orientation,
marital status, national origin, ancestry, familial status, source of income,
disability, or genetic information in housing accommodations is declared
to be against public policy.
1
2
3
It is the purpose of this part to provide effective remedies that will
eliminate these discriminatory practices.
4
5
This part shall be deemed an exercise of the police power of the state for
the protection of the welfare, health, and peace of the people of this state.
6
7
82.
8
In order to eliminate discrimination, it is necessary to provide effective
remedies that will both prevent and deter unlawful employment practices
and redress the adverse effects of those practices on aggrieved persons.
To that end, this part shall be deemed an exercise of the Legislature's
authority pursuant to Section 1 of Article XIV of the California
Constitution.
9
10
11
12
83.
13
Moreover, Government Code §12921, subdivision (a) says in pertinent part:
The opportunity to seek, obtain, and hold employment without
discrimination because of race, religious creed, color, national origin,
ancestry, physical disability, mental disability, medical condition, genetic
information, marital status, sex, gender, gender identity, gender
expression, age, or sexual orientation is hereby recognized as and
declared to be a civil right.
14
15
16
17
Government Code §12920.5 embodies the intent of the California legislature and states:
84.
An actual controversy has arisen and now exists between Plaintiff and Defendants
18
concerning their respective rights and duties as it is believed that Defendants may allege that they did not
19
discriminate and retaliate against Plaintiff; that Plaintiff was not terminated as a result of Plaintiff’s
20
gender, sex, sexual orientation, engagement in protected activities, and/or some combination of these
21
protected characteristics. Plaintiff contends that Defendants did discriminate and retaliate against
22
Plaintiff on the basis of Plaintiff’s gender, sex, sexual orientation, engagement in protected activities,
23
and/or some combination of these protected characteristics; and that Plaintiff was retaliated against and,
24
ultimately wrongfully terminated as a result of Plaintiff’s gender, sex, sexual orientation, engagement in
25
protected activities, and/or some combination of these protected characteristics. Plaintiff is informed and
26
believes, and on that basis alleges, that Defendants shall dispute Plaintiff's contentions.
27
28
85.
Pursuant to Code of Civil Procedure §1060, Plaintiff desires a judicial determination of
Plaintiff’s rights and duties, and a declaration that Defendants harassed Plaintiff on the basis of Plaintiff’s
-15COMPLAINT FOR DAMAGES
PDF Page 17
1
gender, sex, sexual orientation, engagement in protected activities, and/or some combination of these
2
protected characteristics.
3
86.
Pursuant to Code of Civil Procedure §1060, Plaintiff seeks a judicial determination of
4
Plaintiff’s rights and duties, and a declaration that Plaintiff’s gender, sex, sexual orientation, engagement
5
in protected activities, and/or some combination of these protected characteristics was a substantial
6
motivating factor in the decision to subject Plaintiff to the aforementioned adverse employment actions.
7
87.
A judicial declaration is necessary and appropriate at this time under the circumstances in
8
order that Plaintiff, for Plaintiff and on behalf of employees in the State of California and in conformity
9
with the public policy of the State, obtain a judicial declaration of the wrongdoing of Defendants and to
10
condemn such discriminatory employment policies or practices prospectively. Harris v. City of Santa
11
Monica (2013) 56 Cal.4th 203.
12
88.
A judicial declaration is necessary and appropriate at this time such that Defendants may
13
also be aware of their obligations under the law to not engage in discriminatory practices and to not
14
violate the law in the future.
15
89.
Government Code §12965(b) provides that an aggrieved party, such as the Plaintiff herein,
16
may be awarded reasonable attorney's fees and costs: "In civil actions brought under this section, the
17
court, in its discretion, may award to the prevailing party, including the department, reasonable attorney's
18
fees and costs, including expert witness fees." Such fees and costs expended by an aggrieved party may
19
be awarded for the purpose of redressing, preventing, or deterring discrimination and harassment.
20
21
SIXTH CAUSE OF ACTION
22
FOR COMMON LAW BATTERY
23
AGAINST ALL DEFENDANTS
24
25
26
27
90.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
91.
A person is liable for battery if the person intentionally caused a harmful or offensive
touching of another person.
28
-16COMPLAINT FOR DAMAGES
PDF Page 18
1
2
3
92.
As alleged herein, Individual Defendants acted with intent to cause a harmful or offensive
touching of Plaintiff, and a harmful and offensive touching of Plaintiff resulted.
93.
As alleged herein, Individual Defendants repeatedly solicited, encouraged, enabled, and
4
conspired with DOES 1-20 to act with intent to cause a harmful or offensive touching of Plaintiff, and a
5
harmful and offensive touching of Plaintiff repeatedly resulted.
6
7
8
9
10
11
12
94.
At all times when committing the aforementioned batteries, Individual Defendants acting,
at least in part, in the course and scope of their employment with Employers.
95.
The above said acts of Individual Defendants were a proximate cause in Plaintiff’s
damages as stated below.
96.
The damage allegations of Paragraphs 35 through 38, inclusive, are herein incorporated
by reference.
97.
The foregoing conduct of Defendants individually, or by and through their managing
13
agents, was intended by the Defendants to cause injury to the Plaintiffs or was despicable conduct carried
14
on by the Defendants with a willful and conscious disregard of the rights of Plaintiffs or subjected
15
Plaintiffs to cruel and unjust hardship in conscious disregard of Plaintiffs’ rights such as to constitute
16
malice, oppression, or fraud under Civil Code §3294, thereby entitling Plaintiffs to punitive damages in
17
an amount appropriate to punish or make an example of Defendants.
18
19
SEVENTH CAUSE OF ACTION
20
FOR COMMON LAW ASSAULT
21
AGAINST ALL DEFENDANTS
22
23
24
25
26
98.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
99.
A person is liable for assault if the person intentionally threatened another person causing
a reasonable apprehension of an imminent harmful or offensive bodily contact.
100.
As alleged herein, Individual Defendants acted with intent to threaten Plaintiff with an
27
imminent harmful or offensive bodily contact and caused Plaintiff a reasonable apprehension of such
28
contact.
-17COMPLAINT FOR DAMAGES
PDF Page 19
101.
1
As alleged herein, Individual Defendants repeatedly solicited, encouraged, enabled, and
2
conspired with DOES 1-20 to act with intent to threaten Plaintiffs with an imminent harmful or offensive
3
bodily contact and repeatedly caused Plaintiff a reasonable apprehension of such contact.
102.
4
5
acting, at least in part, in the course and scope of their employment with Employers.
6
7
8
9
10
At all times when committing the aforementioned batteries, Individual Defendants was
103.
The above said acts of Defendants were a proximate cause in Plaintiff’s damages as stated
104.
The damage allegations of Paragraphs 35 through 38, inclusive, are herein incorporated
below.
by reference.
105.
The foregoing conduct of Defendants individually, or by and through their managing
11
agents, was intended by the Defendants to cause injury to the Plaintiffs or was despicable conduct carried
12
on by the Defendants with a willful and conscious disregard of the rights of Plaintiffs or subjected
13
Plaintiffs to cruel and unjust hardship in conscious disregard of Plaintiffs’ rights such as to constitute
14
malice, oppression, or fraud under Civil Code §3294, thereby entitling Plaintiffs to punitive damages in
15
an amount appropriate to punish or make an example of Defendants.
16
17
EIGHTH CAUSE OF ACTION
18
FOR SEXUAL BATTERY IN VIOLATION OF CIVIL CODE §1708.5 ET SEQ.
19
AGAINST ALL DEFENDANTS
20
21
22
106.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
107.
At all times hereto, Civil Code §1708.5 was in full force and effect and was binding upon
23
Defendants and each of them. Under Civil Code §1708.5, a person is civilly liable for sexual battery if
24
the person acted with the intent to cause harmful or offensive contact with an intimate part of another,
25
and a sexually offensive contact results.
26
108.
As alleged herein, Andrew Doe, Pedro Doe and Kai Doe repeatedly acted with intent to
27
cause harmful or offensive contact with an intimate part of Plaintiff, and a sexually offensive and harmful
28
contact resulted. At the time of their sexual batteries upon Plaintiff, Andrew Doe, Pedro Doe and Kai
-18COMPLAINT FOR DAMAGES
PDF Page 20
1
Doe were acting at least in part in the course and scope of their employment with Employers, and
2
Employers and DOES 1-20, repeatedly ratified Andrew Doe’s, Pedro Doe’s and Kai Doe’s sexual
3
batteries upon Plaintiff.
4
5
6
7
8
9
10
109.
The above said acts of Defendants constitute violations of Civil Code §1708.5, and were
a proximate cause in Plaintiffs’ damages as stated below.
110.
The damage allegations of Paragraphs 35 through 38, inclusive, are herein incorporated
by reference.
111.
Pursuant to Civil Code §1708.5(c), Plaintiff request an award of punitive damages, in
addition to general and special damages.
112.
Pursuant to Civil Code §1708.5(c) and this court’s statutory authority to award any other
11
relief the court deems proper, Plaintiff requests a reasonable award of attorneys’ fees and costs, including
12
expert fees, and any other relief the court deems proper.
13
14
NINTH CAUSE OF ACTION
15
FOR GENDER VIOLENCE
16
CIVIL CODE §52.4
17
AGAINST ALL DEFENDANTS
18
19
20
21
22
113.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
114.
At all relevant times mentioned in this complaint, Civil Code §52.4 was in full force and
effect and was binding on Defendants.
115.
Civil Code §52.4 declares, in pertinent part, that any person subjected to gender violence
23
may bring a civil action for damages against any responsible party, and may seek actual, compensatory,
24
and punitive damages thereof, or any other appropriate relief.
25
26
27
28
116.
For purposes of Civil Code §52.4, gender violence is a form of sex discrimination and
means any of the following:
a.
An act that would constitute a criminal offense under state law that has as an
element the use, attempted use or threatened use of physical force against the person of another,
-19COMPLAINT FOR DAMAGES
PDF Page 21
1
committed at least in part based on the gender of the victim, whether or not the act has resulted in a
2
criminal complaint, charge, prosecution, or conviction.
b.
3
4
A physical intrusion or physical invasion of a sexual nature under coercive
conditions, whether or not the act has resulted in a criminal complaint, charge, prosecution, or conviction.
117.
5
As alleged above, Individual Defendants assaulted, battered, sexually assaulted, and
6
sexually battered Plaintiff thereby subjecting her to gender violence within the meaning of Civil Code
7
§52.4.
118.
8
9
10
11
As alleged above, Individual Defendants engaged in the foregoing conduct at least in part
based on Plaintiff’s gender, thereby subjecting her to gender violence within the meaning of Civil Code
§52.4.
119.
As alleged above, Individual Defendants grabbed and touched Plaintiff’s body while
12
Plaintiff was working, and thereby assaulted and battered Plaintiff, thereby subjecting Plaintiff to gender
13
violence within the meaning of Civil Code §52.4.
14
120.
As alleged above, Individual Defendants engaged in the foregoing conduct at least in part
15
based on Plaintiff’s gender, thereby subjecting Plaintiff to gender violence within the meaning of Civil
16
Code §52.4.
17
121.
At the time of the gender violence, Individual Defendants were acting at least in part, in
18
the course and scope of their employment with Employers, as employees and agents, and Employers
19
enabled the Individual Defendants’ gender violence committed against Plaintiff.
20
21
22
23
24
122.
In so doing, Individual Defendants, and Employers committed gender violence against
Plaintiff in violation of Civil Code §52.4.
123.
The damage allegations of Paragraphs 35 through 38, inclusive, are herein incorporated
by reference.
124.
The foregoing conduct of Defendants individually, or by and through their managing
25
agents, was intended by the Defendants to cause injury to the Plaintiff or was despicable conduct carried
26
on by the Defendants with a willful and conscious disregard of the rights of Plaintiff or subjected Plaintiff
27
to cruel and unjust hardship in conscious disregard of Plaintiff’s right to be free from gender violence,
28
-20COMPLAINT FOR DAMAGES
PDF Page 22
1
such as to constitute malice, oppression, or fraud under Civil Code §52.4(a), thereby entitling Plaintiff to
2
punitive damages in an amount appropriate to punish or make an example of Defendants.
3
4
125.
Pursuant to Civil Code §52.4(a), Plaintiff requests an award of attorneys’ fees in
prosecuting this action.
5
6
TENTH CAUSE OF ACTION
7
FOR VIOLATION OF THE RALPH CIVIL RIGHTS ACT
8
CIVIL CODE §51.7
9
AGAINST ALL DEFENDANTS
10
11
12
13
14
15
16
17
18
19
20
126.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
127.
At all times mentioned herein, Plaintiff had the right to be from any violence, or
intimidation by threat of violence, committed against her person on account of her sex and/or gender.
128.
As alleged above, Defendants subjected Plaintiff to violence, and/or intimidation by
threats of violence against their person on account of their sex and/or gender.
129.
In so doing, Defendants violated the civil rights of Plaintiff, as set forth in the Ralph Civil
Rights Act, which is codified in Civil Code §51.7.
130.
The damage allegations of Paragraphs 35 through 38, inclusive, are herein incorporated
by reference.
131.
The foregoing conduct of Defendants individually, or by and through their managing
21
agents, was intended by the Defendants to cause injury to the Plaintiff or was despicable conduct carried
22
on by the Defendants with a willful and conscious disregard of the rights of Plaintiff or subjected Plaintiff
23
to cruel and unjust hardship in conscious disregard of Plaintiff’s right to be free from violence, or
24
intimidation by threat of violence, committed against her person on account of her sex and/or gender,
25
such as to constitute malice, oppression, or fraud under Civil Code §3294, thereby entitling Plaintiff to
26
punitive damages in an amount appropriate to punish or make an example of Defendants.
27
28
-21COMPLAINT FOR DAMAGES
PDF Page 23
1
132.
In addition to and/or in lieu of Plaintiff’s election, Plaintiff is entitled to receive and hereby
2
seek statutory damages pursuant to Civil Code §52(b), including actual and exemplary damages, as well
3
as a civil penalty pursuant to Civil Code §52(b)(2) of $25,000.
4
5
133.
Pursuant to Civil Code §52(b)(3), Plaintiff request an award of attorneys’ fees in
prosecuting this action.
6
7
ELEVENTH CAUSE OF ACTION
8
FOR VIOLATION OF THE TOM BANE CIVIL RIGHTS ACT
9
CIVIL CODE §52.1
10
AGAINST ALL DEFENDANTS
11
12
13
134.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
135.
At all relevant times mentioned in this complaint, the FEHA was in full force and effect
14
and was binding on Defendants, and each of them. This law requires Defendants to refrain, among other
15
things, from discriminating against any employee on the basis of race, color, national origin, sex and
16
gender, and from retaliating against any employee who engages in protected activity. At all times
17
mentioned in this complaint, Article I, Section 8 of the California Constitution was in full force and effect
18
and binding on Defendants. This law requires Defendants to refrain from disqualifying a person from
19
pursuing employment on the basis of race, color, national origin, or sex.
20
136.
Pursuant to the foregoing laws, Plaintiff had the right to lawful employment free from
21
violence, threats of violence and intimidation, as well as the right to report to their employer and/or protest
22
discriminatory and harassing conduct of Plaintiff based upon her sex and/or gender, and in the peaceable
23
exercise or enjoyment thereof to be free from interference by threats, intimidation, or coercion, or
24
attempts to interfere by threats, intimidation, or coercion.
25
26
27
28
137.
As alleged above, Defendants repeatedly interfered with, or attempted to interfere with
Plaintiff’s peaceable exercise and enjoyment of said rights by threats, intimidation, or coercion.
138.
In so doing, Defendants violated the civil rights of Plaintiff, as set forth in the Tom Bane
Civil Rights Act, which is codified in Civil Code §52.1.
-22COMPLAINT FOR DAMAGES
PDF Page 24
1
2
3
139.
The damage allegations of Paragraphs 35 through 38, inclusive, are herein incorporated
by reference.
140.
The foregoing conduct of Defendants individually, or by and through their managing
4
agents, was intended by the Defendants to cause injury to the Plaintiff or was despicable conduct carried
5
on by the Defendants with a willful and conscious disregard of the rights of Plaintiff or subjected Plaintiff
6
to cruel and unjust hardship in conscious disregard of Plaintiff’s right to be free from interference by
7
threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, such as to
8
constitute malice, oppression, or fraud under Civil Code §3294, thereby entitling Plaintiff to punitive
9
damages in an amount appropriate to punish or make an example of Defendants.
10
11
12
13
141.
In addition to and/or in lieu of Plaintiffs’ election, Plaintiff are entitled to receive and
hereby seeks statutory damages pursuant to Civil Code §52(b), including actual and exemplary damages.
142.
Pursuant to Civil Code §52.1(h), Plaintiff requests an award of attorneys’ fees in
prosecuting this action.
14
15
TWELFTH CAUSE OF ACTION
16
FOR COMMON LAW NEGLIGENT SUPERVISION AND RETENTION
17
AGAINST EMPLOYERS AND DOES 1-20, INCLUSIVE
18
19
20
143.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
144.
An employer is liable for negligent supervision or retention of an employee if the employer
21
knew or should have known that the employee created a particular risk to others; that the employee
22
harmed the plaintiffs, and that the employer’s negligence in supervising or retaining the employee was a
23
substantial factor in causing the plaintiffs’ harm.
24
25
26
145.
Employers owed Plaintiff a duty of reasonable care to supervise their employees and to
take reasonable steps to prevent them from threatening or injuring Plaintiff.
146.
Employers further owed Plaintiff a duty of reasonable care to discharge from employment
27
employees who had threatened or injured or were reasonably likely to threaten or injure others with whom
28
they came into contact at work, including Plaintiff.
-23COMPLAINT FOR DAMAGES
PDF Page 25
1
147.
Employers had reason to know that Individual Defendants created a risk or threat of injury
2
to Plaintiff, as alleged herein, due to, but not limited to, Individual Defendants’ sexual harassment of
3
Plaintiff, and his solicitation and ratification by Employers.
4
148.
Employers breached their duties by failing to properly supervise or control Individual
5
Defendants; and by failing to terminate the employment of Individual Defendants so that Plaintiff could
6
work in a reasonably safe environment.
7
8
9
149.
The damage allegations of Paragraphs 35 through 38, inclusive, are herein incorporated
by reference.
150.
The foregoing conduct of Defendants, by and through its officers, directors and/or
10
managing agents, was intended by Defendants to cause injury to the Plaintiff or was despicable conduct
11
carried on by Defendants with a willful and conscious disregard of the rights of Plaintiff or subjected
12
Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff’s rights such as to constitute
13
malice, oppression, or fraud under Civil Code §3294, thereby entitling Plaintiff to punitive damages in
14
an amount appropriate to punish or make an example of Defendants.
15
THIRTEENTH CAUSE OF ACTION
16
FOR WRONGFUL TERMINATION
17
IN VIOLATION THE PUBLIC POLICY OF THE STATE OF CALIFORNIA
18
AGAINST ALL DEFENDANTS
19
20
21
151.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
152.
At all relevant times mentioned in this complaint, the FEHA was in full force and effect
22
and was binding on Defendants. This law requires Defendants to refrain, among other things, from
23
discriminating against any employee on the basis of gender, sex, and sexual orientation, and from
24
retaliating against any employee who engages in protected activity.
25
153.
At all times mentioned in this complaint, it was a fundamental policy of the State of
26
California that Defendants cannot discriminate and/or retaliate against any employee on the basis of
27
gender, sex, sexual orientation, and/or engagement in protected activity.
28
-24COMPLAINT FOR DAMAGES
PDF Page 26
1
154.
Plaintiff believes and thereon alleges that Plaintiff’s gender, sex, sexual orientation and/or,
2
engagement in protected activity with respect to these protected classes, and/or some combination
3
thereof, were factors in Defendants’ conduct as alleged hereinabove.
4
155.
Such discrimination and retaliation, resulting in the wrongful termination of Plaintiff’s
5
employment on the basis of gender, sex, and sexual orientation, Plaintiff’s complaining of harassment
6
and discrimination due to these protected classes, Plaintiff’s engagement in protected activity, and/or
7
some combination of these factors, were a proximate cause in Plaintiff’s damages as stated below.
8
156.
The above said acts of Defendants constitute violations of the Government Code and the
9
public policy of the State of California embodied therein as set forth above. Defendants violated these
10
laws by discriminating and retaliating against Plaintiff and terminating Plaintiff’s employment in
11
retaliation for exercise of protected rights.
12
13
157.
The damage allegations of Paragraphs 35 through 38, inclusive, are herein incorporated
by reference.
14
The foregoing conduct of Defendants individually, or by and through their officers, directors
15
and/or managing agents, was intended by the Defendants to cause injury to the Plaintiff or was despicable
16
conduct carried on by the Defendants with a willful and conscious disregard of the rights of Plaintiff or
17
subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff’s rights such as to
18
constitute malice, oppression, or fraud under Civil Code §3294, thereby entitling Plaintiff to punitive
19
damages in an amount appropriate to punish or make an example of Defendants.
20
FOURTEENTH CAUSE OF ACTION
21
FOR FAILURE TO PAY WAGES DUE
22
LABOR CODE §§201, 1182.12, 1194, 1194.2
23
AGAINST ALL DEFENDANTS
24
25
26
158.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
159.
At all relevant times, Defendants failed and refused to pay Plaintiff wages earned and
27
required by 8 Code of Regulations §11010, as set forth hereinabove. As alleged herein, Defendants
28
routinely failed to pay Plaintiff for missed rest breaks.
-25COMPLAINT FOR DAMAGES
PDF Page 27
1
2
3
160.
As alleged herein, Plaintiff was not exempt from the requirements of Labor Code §510, 8
Code of Regulations §11010, and Industrial Welfare Commission Order No. 1-2001.
161.
Plaintiff has been deprived of Plaintiff’s rightfully earned compensation as a direct and
4
proximate result of Defendants’ failure and refusal to pay said compensation. Plaintiff is entitled to
5
recover such amounts, plus interest thereon, attorneys’ fees and costs.
6
FIFTEENTH CAUSE OF ACTION
7
FOR FAILURE TO PROVIDE REST PERIODS
8
CAL. LABOR CODE §§226.7
9
AGAINST ALL DEFENDANTS
10
11
12
162.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
163.
Labor Code §226.7 requires an employer to provide every employee with an uninterrupted
13
rest period of not less than 10 minutes, for every period worked of four hours, or substantial portion
14
thereof.
15
16
17
164.
In the four years last past, Plaintiff regularly worked in excess of twelve hours per day,
and was thereby entitled to take uninterrupted three 10-minute rest periods on each day of work.
165.
Defendants failed and refused to provide Plaintiff with rest periods, and failed to
18
compensate Plaintiff for missed rest periods, as required by Labor Code §§226.7 and the applicable
19
sections of 8 Code of Regulations §11010 and Industrial Welfare Commission Order No. 1-2001, as
20
follows:
c.
21
From approximately January 25, 2021 to approximately June 30, 2021, Plaintiff
22
was deprived of one or more of Plaintiff’s statutory 10-minute rest periods on approximately five (5) days
23
per week for approximately 22 weeks, or on approximately 110 days.
24
166.
As alleged herein, Plaintiff is not exempt from the rest break requirements of 8 Code of
25
Regulations §11010 and Industrial Welfare Commission Order No. 1-2001. Consequently, Plaintiff is
26
owed one hour of pay at Plaintiff’s regular hourly rate, or the requisite minimum wage, whichever is
27
greater, for each day that Plaintiff was denied such rest periods, calculated as follows:
28
-26COMPLAINT FOR DAMAGES
PDF Page 28
d.
1
From approximately January 25, 2021 to June 30, 2021, Defendants failed to
2
provide Plaintiff with the statutory rest period on approximately 110 separate days. Consequently,
3
Plaintiff is owed one hour of pay at $23.10 for each day, or approximately $2,541.00, plus interest
4
thereon, for unpaid rest periods.
167.
5
6
approximately $2,541.00.
168.
7
8
Thus, the total missed rest period compensation owing Plaintiff for this time period is
Plaintiff has been deprived of Plaintiff’s rightfully earned compensation for rest breaks as
a direct and proximate result of Defendants’ failure and refusal to pay said compensation.
169.
9
Thus, for the entirety of the time periods set forth above, Plaintiff is entitled to recover
10
such amounts in the combined amount of $2,541.00, pursuant to Labor Code §226.7(b), plus interest
11
thereon and costs of suit.
12
SIXTEENTH CAUSE OF ACTION
13
FOR FAILURE TO PROVIDE ITEMIZED WAGE AND HOUR STATEMENTS
14
LABOR CODE §§226, ET SEQ.
15
AGAINST ALL DEFENDANTS
170.
16
17
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
171.
18
Pursuant to Labor Code §§226 and 1174, employers have a duty to provide their non-
19
exempt employees with itemized statements showing total hours worked, hourly wages, gross wages,
20
total deductions and net wages earned. An employer who violates these code sections is liable to its
21
employees for the greater of actual damages suffered by the employee, or, $50.00 in civil penalties for
22
the initial pay period in which a violation occurred, and $100.00 per employee for each subsequent pay
23
period, up to a statutory maximum of $4,000.00. Pursuant to Labor Code §226(e)(2), an employee is
24
deemed to suffer injury for purposes of this subdivision if the employer fails to provide a wage statement
25
at all.
26
172.
At all relevant times, Defendants failed to provide the Plaintiff with timely and accurate
27
wage and hour statements showing gross wages earned, total hours worked, all deductions made, net
28
wages earned, the name and address of the legal entity employing Plaintiff, and all applicable hours and
-27COMPLAINT FOR DAMAGES
PDF Page 29
1
rates in effect during each pay period and the corresponding number of hours worked at each hourly rate
2
by Plaintiff. Not one of the paystubs that Plaintiff received complied with Labor Code §226.
3
173.
As alleged herein, Plaintiff is not exempt from the requirements of Labor Code §226.
4
174.
This failure has injured Plaintiff, by misrepresenting and depriving Plaintiff of hour, wage,
5
and earnings information to which Plaintiff is entitled, causing Plaintiff difficulty and expense in
6
attempting to reconstruct time and pay records, causing Plaintiff not to be paid wages Plaintiff is entitled
7
to, causing Plaintiff to be unable to rely on earnings statements in dealings with third parties, eviscerating
8
Plaintiff’s right under Labor Code §226(b) to review itemized wage statement information by inspecting
9
the employer’s underlying records, and deceiving Plaintiff regarding Plaintiff’s entitlement to rest period
10
compensation and/or wages.
175.
11
Plaintiff was paid on a bi-weekly basis, and therefore Defendants violated Labor Code
12
§226 approximately 55 times during the Plaintiff’s employment. Consequently, Defendants are liable to
13
Plaintiff for Plaintiff’s actual damages, or penalties up to the statutory maximum amount of $4,000.00,
14
whichever is greater.
15
176.
Based on Defendants’ conduct as alleged herein, Defendants are liable for damages and
16
statutory penalties pursuant to Labor Code §226, and other applicable provisions, as well as attorneys’
17
fees and costs.
18
SEVENTEENTH CAUSE OF ACTIONFOR WAITING TIME PENALTIES
19
LABOR CODE §§201-203
20
AGAINST ALL DEFENDANTS
177.
21
22
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
178.
23
At all relevant times, Defendants failed to pay all of the Plaintiff’s accrued wages and
24
other compensation due immediately upon termination or within 72 hours of resignation, as required.
25
These wages refer to, at a minimum, unpaid minimum wages, overtime compensation, and meal and rest
26
period compensation that Defendants should have paid, but did not pay to Plaintiff during the term of
27
Plaintiff’s employment and which were, at the latest, due within the time restraints of Labor Code §§201-
28
203.
-28COMPLAINT FOR DAMAGES
PDF Page 30
1
2
3
179.
As alleged herein, Plaintiff is not exempt from the requirements of Labor Code §§201-
180.
As a direct and proximate result of Defendants’ willful failure to pay these wages, Plaintiff
203.
4
is entitled to payment of Plaintiff’s rest periods as previously pleaded herein, and more than $9,702.00 in
5
wait time penalties, calculated based on 30 days of Plaintiff’s daily wage rate of approximately $323.40,
6
inclusive of overtime.
7
181.
Based on Defendants’ conduct as alleged herein, Defendants are liable for $9,702.00 in
8
statutory penalties pursuant to Labor Code §203 and other applicable provisions, as well as attorneys’
9
fees and costs.
10
EIGHTEENTH CAUSE OF ACTION
11
UNFAIR COMPETITION
12
BUSINESS & PROFESSIONS CODE §§17200, ET SEQ.
13
AGAINST ALL DEFENDANTS
14
15
16
182.
Plaintiff re-alleges and incorporates by reference each of the foregoing paragraphs as
though set forth in full herein.
183.
Defendants’ violations of 8 Code of Regulations §11010, Industrial Welfare Commission
17
Order No. 1-2001, Labor Code §§201-203, 226, 226.7, 1182.12, 1194, 1194.2, and other applicable
18
provisions, as alleged herein, including Defendants’ failure to pay wages due, Defendants’ failure to
19
provide rest breaks, Defendants’ failure to provide timely and accurate wage and hour statements,
20
Defendants’ failure to pay compensation due in a timely manner upon termination or resignation, and
21
Defendants’ failure to maintain complete and accurate payroll records for the Plaintiff, constitute unfair
22
business practices in violation of Business & Professions Code §§17200, et seq.
23
184.
As a result of Defendants’ unfair business practices, Defendants have reaped unfair
24
benefits and illegal profits at the expense of Plaintiff and members of the public. Defendants should be
25
made to disgorge their ill-gotten gains and restore such monies to Plaintiff.
26
27
185.
Defendants’ unfair business practices entitle Plaintiff to seek preliminary and permanent
injunctive relief, including but not limited to orders that the Defendants account for, disgorge, and restore
28
-29COMPLAINT FOR DAMAGES
PDF Page 31
1
to the Plaintiff the overtime compensation and other monies and benefits unlawfully withheld from
2
Plaintiff.
3
PRAYER FOR RELIEF
4
5
6
7
WHEREFORE, Plaintiff seeks judgment against Defendants and each of them, in an amount
according to proof as follows:
1.
For a money judgment representing compensatory damages including lost wages,
8
earnings, commissions, retirement benefits, and other employee benefits, and all other sums of money,
9
together with interest on these amounts; for other special damages; and for general damages for mental
10
11
12
pain and anguish and emotional distress and loss of earning capacity;
2.
For payment of rest period compensation pursuant to Labor Code §226.7, in the amount
of no less than $2,541.00;
13
3.
For damages pursuant to Labor Code §226 in the amount of no less than $4,000.00;
14
4.
For waiting time penalties pursuant to Labor Code §§201-203 in the amount of no less
15
than $9,702.00;
16
5.
17
18
19
20
21
22
23
24
25
26
27
For prejudgment interest on each of the foregoing at the legal rate from the date the
obligation became due through the date of judgment in this matter.
WHEREFORE, Plaintiff further seeks judgment against Defendants, and each of them, in an
amount according to proof, as follows:
6.
For a declaratory judgment reaffirming Plaintiff’s equal standing under the law and
condemning Defendants’ discriminatory practices;
7.
For injunctive relief barring Defendants’ discriminatory employment policies and
practices in the future, and restoring Plaintiff to Plaintiff’s former position with Defendants;
8.
For punitive damages, pursuant to Civil Code §§3294 in amounts sufficient to punish
Defendants for the wrongful conduct alleged herein and to deter such conduct in the future;
9.
For costs of suit, attorneys’ fees, and expert witness fees pursuant to the FEHA and/or any
other basis;
28
-30COMPLAINT FOR DAMAGES
PDF Page 32
1
10.
For injunctive relief compelling Defendants to report to federal and state authorities wages
2
earned by Plaintiff, and other employees, and pay all state and federal taxes owing, employer matching
3
funds, unemployment premiums, social security, Medicare, and workers' compensation premiums, all
4
this in an amount according to the proof;
5
6
11.
For restitutionary disgorgement of profits garnered as a result of Defendants’ unlawful
conduct , and failure to pay wages and other compensation in accordance with the law;
7
12.
For post-judgment interest; and
8
13.
For any other relief that is just and proper.
9
10
DATED: June 30, 2023
LAW OFFICES OF RAMIPHCTDUNESSI
A PROFESSIONAL LA\V CORPORATION
11
12
By: /
/
Ramin R. Younessi, Esff.
Attorney for Plaintiff [
MARGARITA VARGAS
13
14
15
16
JURY TRIAL DEMANDED
17
18
19
20
Plaintiff demands trial of all issues by jury.
DATED: June 30, 2023
LAW OFFICES OF RAtfllN R. YOUNESSI
A PROFESSIONAL LAW CORPORATION
21
22
By:
/
_
’
Ramin R. Younessi, Esq .
Attorney for Plaintiff
MARGARITA VARGAS
23
24
25
26
27
28
-31COMPLAINT FOR DAMAGES