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28 ARENT Fox LLP ATTORNBYS AT LAW
Los ANGBLES
Harry I. Johnson, DI (SBN 200257) Stanley G. Stringfellow n (SBN
259047) ARENT FOX LLP 555 West Fifth Sfreet, 48th Floor Los
Angeles, CA 90013-1065 Telephone: 213.629.7400 Facsimile:
213.629.7401 Email: johnson.harry(^arentfox.com
[email protected]
Attomeys for Defendants PANDA EXPRESS, INC., PANDA EXPRESS, LLC,
PANDA INN, INC., PA>roA RESTAURANT GROUP, INC., HIBACHI-SAN,
INC.
, FILED ENDORSED
'fiFCBca F,M 3:1,3
iACRA^^eOURTS
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SACRAMENTO \
SOBCPHYTIN,
Plaintiff,
V.
PANDA EXPRESS, INC., PANDA EXPRESS, LLC, PANDA INN, INC., PANDA
RESTAURANT GROUP, INC., HIBACHI-SAN, INC., and DOES 1-100,
inclusive,
Defendants.
CASENO. 34-2010-00090959
DEMURRER OF DEFENDANTS PANDA EXPRESS, INC., PANDA EXPRESS, LLC,
PANDA INN, INC., PANDA RESTAURANT GROUP, INC., AND HIBACHI-SAN,
INC. TO PLAINTIFF SOKPHY TIN'S COMPLAINT FOR DAMAGES; MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT THEREOF
([Proposed] Order filed concurrently herewith) Date: Time:
Dept.: Ref No.:
June 29, 2011 2:00 p.m. 53 1530457
Action Filed: Nov. 4,2010 Trial Date: None yet Law & Mot.
Judge: Kevin R. Culhane (Dept. 53 Case Mgmt. Progr.: Robert C.
Hight (Dept. 44)
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NOTICE OF DEMURRER
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on June 29,2011, at 2:00 p.m. or as soon
thereafter as the
matter may be heard, in Department 53 ofthe above-entitled
Court, located at 800 9th Sfreet,
Sacramento, Califomia 95814, defendants Panda Express, Inc.,
Panda Express, LLC, Panda Inn,
Inc., Panda Restaurant Group, Inc., and Hibachi-San, Inc.
("Defendants") will and hereby do demur to the First, Second, TWrd,
and Fourth, Causes of Action contained in the Complaint for
Damages of plaintiff Sokphy Tin ("Plaintiff"). This demurrer is
made pursuant to Code ofCivil Procedure Section 430.10 on the
grounds that Tin's First Cause of Action (Pregnancy/Sex
Discrimination), Second Cause of Action (Retaliation), Third Cause
of Action (Failure to Prevent Discrimination and/or Retaliation),
and Fourth Cause of Action (Adverse Action in Violation of Public
Policy), each fail to state facts sufficient to constitute causes
of action. See Cal. Civ. Proc. Code 430.10(e). Additionally, each
Cause of Action is sufficientiy ambiguous to render it uncertain.
See Cal. Civ. Proc. C. 430.10(f). Because Plaintiff cannot
demonsfrate that there is a reasonable possibility that the defects
in these claims can be cured by amendment, this Demurrer
should be sustained and Plaintiff denied leave to amend as to
the challenged claims.
This Demurrer is based on this Notice of Demurrer, the
accompanying Demurrer and
Memorandum of Points and Authorities supporting the Demurrer,
the lodged [Proposed] Order Sustaining Demurrer, the pleadings and
papers on file in this action, and such further evidence or
argimient as may be presented at or before the hearing on this
matter.
Dated: February i : 5 2011 ARENT:
Han/I . Johds6nniJ AttomeyyigrDefeitid'ants PANDA(EXPRESS, INC.,
PANDA EXPRESS, LLC, PANDA INN, INC., PANDA RESTAURANT GROUP, INC.,
HIBACHI-SAN, INC.
ARENT FOX L L P ATTORNBY3 AT LAW
Los ANGELES NOTICE OF DEMURRER AND DEMURRER
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Los AMCBLES
DEMURRER
Pursuant to Code ofCivil Procedure Section 430.10 et seq..
Defendants Panda Express,
Inc., Panda Express, LLC, Panda Inn, Inc., Panda Restaurant
Group, Inc., and Hibachi-San, Inc.
("Defendants") jointiy and severally demur to the Ffrst, Second,
Thfrd, and Fourth Causes of Action contained in Plaintiff Sokphy
Tin's ("Plaintiff') Complaint for Damages, on the following
grounds:
FIRST CAUSE OF ACTION
(Pregnancy/Sex Discrimination) 1. Plaintiffs Ffrst Cause of
Action for Specific Performance does not state facts
sufficient to constitute a cause of action. (See Cal. Civ. Proc.
Code 430.10(e).) 2. PlaintifF s First Cause of Action is imcertain
because all of the allegations in the
Complaint are dfrected at PANDA EXPRESS, and Paragraph 1 ofthe
Complaint defines
"PANDA EXPRESS" as "Defendants PANDA EXPRESS, INC., PANDA
EXPRESS LLC,
PANDA INN, INC., PANDA RESTAURANT GROUP, INC., and HIBACHI-SAN,
INC."
(Complaint, p. 1, Imes 24-26), meaning, none ofthe Defendants
know exactiy which ofthe alleged conduct specifically applies to
them. Consequently, the Complaint is so confiismg that
none ofthe Defendants can tell what they are supposed to respond
to or know how to defend
tiiemselves. (See Cal. Civ. Proc. Code 430.10(f).) SECOND CAUSE
OF ACTION
(Retaliation) 3. PlaintifFs Second Cause of Action for Specific
Performance does not state facts
sufficient to constitute a cause of action. (See Cal. Civ. Proc.
Code 430.10(e).) 4. PlaintifFs Second Cause of Action is uncertain
because all ofthe allegations in the
Complaint are dfrected at PANDA EXPRESS, and Paragraph 1 ofthe
Complaint defines
"PANDA EXPRESS" as "Defendants PANDA EXPRESS, INC., PANDA
EXPRESS LLC,
PANDA INN, nSlC, PANDA RESTAURANT GROUP, INC., and HIBACHI-SAN,
INC."
(Complaint, p. 1, lines 24-26), meaning, none ofthe Defendants
know exactly which ofthe alleged conduct specifically apphes to
them. Consequentiy, the Complaint is so confusing that
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none ofthe Defendants can tell what they are supposed to respond
to or know how to defend
themselves. (See Cal. Civ. Proc. Code 430.10(f).) THIRD CAUSE OF
ACTION
(Failure to Prevent Discrimination and/or Retaliation) 5.
PlaintifF s Thfrd Cause of Action for Specific Performance does not
state facts
sufficient to constitute a cause of action. (See Cal. Civ. Proc.
Code 430.10(e).) 6. PlaintifFs Thfrd Cause of Action is uncertain
because all ofthe allegations in the
Complaint are dfrected at PANDA EXPRESS, and Paragraph 1 ofthe
Complaint defines
"PANDA EXPRESS" as "Defendants PANDA EXPRESS, INC., PANDA
EXPRESS LLC,
PANDA INN, INC., PANDA RESTAURANT GROUP, INC., and HIBACHI-SAN,
INC."
(Complaint, p. 1, lines 24-26), meaning, none ofthe Defendants
know exactly which ofthe alleged conduct specifically applies to
them. Consequently, the Complamt is so confusing that
none ofthe Defendants can tell what they are supposed to respond
to or know how to defend
themselves. (See Cal. Civ. Proc. Code 430.10(f).) FOURTH CAUSE
OF ACTION
(Adverse Action in Violation of Public Policy) 7. Plaintiffs
Fourth Cause of Action for Specific Performance does not state
facts
sufficient to constitute a cause of action. (See Cal. Civ. Proc.
Code 430.10(e).)
ARENT Fox LLP ATTORNEYS A T L A W
Los ANCBLES 2-
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28 ARENT FOX LLP ATTORNEYS A T LAW
Los ANGELES
8. PlaintifF s Fourth Cause of Action is uncertain because all
of the allegations in the
Complamt are dfrected at PANDA EXPRESS, and Paragraph 1 ofthe
Complaint defines
"PANDA EXPRESS" as "Defendants PANDA EXPRESS, INC., PANDA
EXPRESS LLC,
PANDA INN, INC., PANDA RESTAURANT GROUP, INC., and HIBACHI-SAN,
INC."
(Complaint, p. 1, lines 24-26), meaning, none ofthe Defendants
know exactly which ofthe alleged conduct specifically applies to
them. Consequentiy, the Complaint is so confusing that
none ofthe Defendants can tell what they are supposed to respond
to or know how to defend
themselves. (See Cal. Civ. Proc. Code 430.10(f).)
Dated: February 2=^ 2011 ARENT
Attomeyi '^fcr Def^ fedants PANDA EXPRESS, INC., PANDA EXPRESS,
LLC, PANDA INN, INC., PANDA RESTAURANT GROUP, INC. HIBACHI-SAN,
INC.
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I. II.
III. rv.
TABLE OF CONTENTS
Page INTRODUCTION 1 BACKGROUND 2 A. The 2005 Allegations 2 B.
The 2008-2009 Allegations 3 STANDARD OF DEMURRER 5 ARGUMENT 5 A.
The Complaint Fails to State Facts that Constitute Any Cause of
Action 5
1. Ffrst Cause of Action: Pregnancy/Sex Discrimination 6 2.
Second Cause of Action: Retaliation 8 3. Thfrd Cause of Action:
Failure to Prevent Discrimination or
Retaliation 10 4. Fourth Cause of Action: Adverse Action in
Violation of Public
Policy 11 B. Plaintiffs Attempt to Define and Treat All
Defendants as the Single Entity
"PANDA EXPRESS" Renders tiie Complaint Uncertain 11 C. The Court
Should Deny Plaintiff Leave To Amend Or, In The Altemative,
Order Plaintiff To Cure Specific Defects in the Pleadings 12
CONCLUSION 13
ARENT Fox LLP ATTORNEYS AT LAW
Los ANCBLES
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TABLE OF AUTHORITIES
Page(s) FEDERAL CASES
Cornwell v. Electra Cent. Credit Union (9tfi Cir. 2006) 439 F.3d
1018 9
Doe V. C.A.R.S. Protection Plus, Inc. (3d Cfr. 2008) 527 F.3d
358 6
Richmondv. ONEOK, Inc. (lOtii Cfr. 1997) 120 F.3d 205 9
STATE CASES
Angle M. v Superior Court (1995) 37 Cal. App. 4tii 1217 13
City of Stockton v. Superior Court (2007) 42 Cal. 4tii 730
12
Excelsior College V. Califomia Bd. of Registered Nursing (2006)
136 Cal. App. 4tii 1218 5
Hills Transp. Co. v. Southwest Forest Industries, Inc. (1968)
266 Cal. App. 2d 702 11
Holmes v. General Dynamics Corp. (1993) 17 Cal. App. 4tii 1418
11
Kelly V. Stamps.com, Inc. (2005) 135 Cal. App. 4tii 1088 6
Khoury v. Maly's of Calif, Inc. (1993) 14 Cal. App. 4tii 612
12
Lebbos v. State Bar (1985) 165 Cal. App. 3d 656 6
Martin v. Bridgeport Commumty Ass'n, Inc. (2009) 173 Cal. App.
4tii 1024 5,12
Northrop Grumman Corp. v. Workers' Comp. Appeals Bd. (2002) 103
Cal. App.4tii 1021 7,10
See v.Joughin (192)1) 18 Cal. App. 2d 414 6
Stanton Road Assocs. v. Pacific Employers Ins. Co. (1995) 36
Cal. App. 4tii 333 5
Thompson v. Monrovia (2010) 186 Cal. App. 4tii 860 8,10
Trop V. Sony Pictures Entertainment, Inc. (2005) 129 Cal. App.
4tii 1133 6
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TrujiUo V. North County Transit Dist. (1998) 63 Cal. App. 4tii
280 7,10
Turner v. Anheuser-Busch, Inc. (1994) 7 Cal. 4tii 1238 11
Williams v. Beechnut Nutrition Corp. (1986) 185 Cal. App. 3d 135
12
Yanowitz v. L 'Oreal USA, Inc. (2005) 36 Cal. 4tii 1028 8
STATE STATUTES
Cal. Civ. Proc. Code 338 2 Cal. Civ. Proc. Code 430.10(e) 5 Cal.
Civ. Proc. Code 430.10(f) 11 Cal. Civ. Proc. Code 472a(c) 13 Gov.
Code 12940(a) 1 Gov. Code 12940(j)(l) 8,10 Gov. Code 12940(k) 2
Gov. Code 12945(2) 1, 9 Gov. Code 12960(d) 2 REGULATIONS
Cal. Code of Regulations 7297.7 9
ARENT Fox LLP ATTORNEYS AT LAW
Los ANGELES
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MEMORANDUM OF POINTS AND AUTHORITIES
I, INTRODUCTION
Plaintiff Sokphy Tin ("Plaintiff') was an Assistant Manager for
Panda Express in the Sacramento-area who was terminated in February
2009 for attendance issues. She was four
months pregnant with her seventh child at the tune of her
discharge. Now, despite never having
complained ofany pregnancy-related discrimination, and despite
her well-documented attendance
issues, Plaintiffhas filed this Complaint for Damages
("Complaint") against five defendants Panda Express, Inc., Panda
Express, LLC, Panda Inn, Inc., Panda Restaurant Group, Inc.,
and
Hibachi-San, Inc. ("Defendants")alleging four causes of action
against them: pregnancy discrimination, retaliation, failure to
prevent discrimination and/or retaliation, and adverse action
in violation of public policy. The only problem is that her
Complaint is facially defective: none
of her causes of action state facts sufficient to constitute a
claim, and all are uncertain due to her
attempt to lump all Defendants into one and freat them as a
single "PANDA EXPRESS" entity.
The Ffrst Cause of Action for Pregnancy Discrimination in
violation of Fair Employment
and Housing Act ("FEHA") found in Govemment Code 12940(a), fails
because it contains broad, sweeping conclusory accusations of
wrongdoing but without any allegations of fact to
support it. Specifically, this cause of action fails to allege
any facts that at all establish a nexus
between her being pregnant and her tennination, the refusal
ofany Defendant to accommodate
her pregnancy, the failure ofany Defendant to investigate
discrimination against her after
notification, the disparate application of company practices
agamst her as a pregnant woman, or
any discruninatmg conduct whatsoever, for that matter. Her
failure to plead any facts to
substantiate these claims is grounds for dismissal ofthis cause
of action.
The Second Cause of Action for Retaliation in violation ofthe
FEHA (Govemment Code 12945(2)) likewise fails because it contains
even broader, more sweeping conclusory accusations of wrongdoing
than the First Cause of Action. Plaintiff fails to allege facts
that
establish any sort of retaliatory animus, or that the reasons
given for her termination were pretexts
for retaliation. Consequently, this cause of action, too, must
be dismissed.
The Thfrd Cause of Action for Failure to Prevent Discrimination
and/or Retaliation in -_U
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violation ofthe FEHA (Govemment Code 12940(k)) sunilarly fails
to allege facts to support this statutory tort. There are no
allegations of fact establishing that Defendants actually knew
or
were on notice ofany discrimination or retaliation, only the
conclusory allegation that Defendants
"knew or should have known." Therefore, Plaintiff fails to
adequately plead tiiis claim, which
must be dismissed.
The Fourth Cause of Action for Adverse Action in Violation of
Public Policy also fails to
state facts sufficient to constitute a claim against Defendants.
As ui tiie case of tiie other causes
of action. Plaintiff fails to allege any specific facts to
support this claim. Consequentiy, it, too, is
properly dismissed on Demurrer.
Fmally, each cause of action is inherentiy uncertain due to
PlaintifPs attempt to freat all
five Defendants as one, lumping them all into a single entity
she defines as "PANDA EXPRESS."
The inevitable resuh ofthis attempt is to leave Defendants m the
dark as to which allegations
actually apply to them or how they should defend themselves or
against what they should defend
themselves. The Complaint must therefore be dismissed for
uncertainty under the Califomia
Code ofCivil Procedure.
In light ofthe foregoing reasons, and the arguments set forth
below, this Court should
sustam this Demurrer and dismiss the entire Complaint without
leave to amend.
II. BACKGROUND
A. The 2005 Allegations'
Plaintiffwas hfred by "PANDA EXPRESS" m July 2004 as Counter
Help, hi October
2004, Plaintiff became pregnant with her fifth child. She was
promoted to Lead Counter Help,
and roughly one week later, was promoted to Assistant
Manager-in-Training and fransferred to a
different location. Plaintiff thereafter underwent a four-week
manager frainmg program, during
the thfrd week of which she was absent for three days due to
"pregnancy related sickness." Upon
completing her framing with a passuig rating, Plamtiff was
fransferred back to her original store
ARENT Fox LLP ATTORNBYS AT LAW
t o s ANCSIES
' The 2005 Allegations, while helpful for providing some
background infonnation, are ultimately irrelevant. Even if they had
any bearing on the subject matter ofthis lawsuit, they would be
barred by both the 1-year statute of limitations set forth in the
FEHA (see Gov't C. 12960(d)) and the three-year statute of
limitations set forth in the Code ofCivil Procedure. (See Civ.
Proc. C. 338.)
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as Assistant Manager. (See Complaint, |Tf 10-20.) In January
2005, Plaintiff advised her store's general manager, Yan Hua Liu,
that she was
pregnant. Liu responded by asking why Plaintiff had so many
children and why she continued
having more babies. Later tiiat month. Plaintiff overheard
"Lu"^remark that she would not have
frained Plaintiff to become an Assistant Manager had she known
Plamtiff was pregnant. At the
end ofthe month. Plaintiff received a call from the Regional
Dfrector of Operations to discuss
concems about her work performance. This discussion was followed
up with a written
performance review. (See id. at ff 21-24.) In Febmary 2005,
Plaintiff gave Liu a doctor's note that restricted her from lifting
objects
weighing over fifty pounds. Around that same tune, she spoke
with the Area Coach of
Operations regarding "pregnancy accommodations." (See id. at f
25.) In the middle of March 2005, Plaintiff received a "disciplmary
action report" from the
Area Coach of Operations for "poor work performance." This
resulted m Plaintiff being demoted
to Lead Counter Help with a pay decrease. At the end of March,
Plaintiff left on maternity leave.
At the end of April 2005, she gave birth to her fifth child, and
then retumed to work the following
June. (See id. at f t 26-30.) B. The 2008-2009 Allegations
In October 2006, Plaintiff received a pay increase. The
following May, Plaintiffwas
again recommended and promoted to Assistant Manager-in-Training.
As before, she was
fransferred to a new location with a pay increase. She underwent
the four-week manager fraining
program once again, which she completed in June with a passing
rating. She was subsequentiy
fransferred to a new store and promoted to Assistant Manager.
(See Complamt, | f 31-39.) In August 2007, Plauitiff became
pregnant with her sixth child. She notified the Area
Coach of Operations of her pregnancy the followmg November. In
January 2008, she advised her
general manager that her doctor was placing her on early
maternity leave due to complications.
At tiie end of March 2008, she gave birth to her sixtii child.
(See id at ff 40-43.)
ARBNT Fox LLP ATTORNEYS AT LAW
Los ANGBLES
^ "Lu" could be a reference to Cindy Lu, the certified manager
who conducted PlaintifPs training program; however, Defendants
believe that this is a typographical error, and that Plaintiff
intended to type "Liu." PlaintifF can, of course, clarify this in
her Opposition.
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Plamtiff retumed to her post as an Assistant Manager in June
2008. In August, she was
again fransferred. That same month, she approached her Area
Coach of Operations about the
possibility of becoming the general manager ofa store. The Area
Coach of Operations responded
by telling her that "she should just worry about taking care of
her children since she had so many." (See id at ff 44-46.)
In October 2008, Plamtiff was reprimanded over the phone by her
Area Coach of
Operations for leaving work thirty minutes early to attend to an
emergency with her daughter
witiiout advising him, despite tiie fact tiiat Plamtiff
allegedly notified tiie restaurant's Lead
Counter Help. (See id. at f 47.) The following month, November,
Plaintiffwas fransferred again (still Assistant Manager).
That same month, she became pregnant with her seventh child. She
notified her general manager,
Tony lyamu, shortly thereafter that she was pregnant. lyamu
allegedly responded by askmg why
she had so many children, and whether Plamtiff received welfare
benefits. (See id. at ff 49-50.) Later that month, Plaintiffwas
called in to help at another restaurant. lyamu wrote her up
as "no-call, no-show" because she was scheduled to work at her
home restaurant that day, despite
her explanation that the other restaurant's general manager was
supposed to call lyamu and
advise him that her assistance was needed at his (the other
restaurant's general manager) store. Still in November, Plaintiff
received anotiier written waming from lyamu, who informed her
that
she would be terminated immediately if she incurred another
no-call, no-show absence. (See id. at ff 51-52.)
On January 22,2009, Plaintiff requested permission to take the
day off on January 30,
2009^ from her Area Coach of Operations. That same month, lyamu
was fransferred to another
restaurant and replaced by "Nicolas," who granted Plamtiff
permission to take January 30,2009
off from work. She subsequentiy took the day off, and returned
to work her regularly-scheduled
shift on January 31,2009. However, on February 2,2009,
Plaintiffwas suspended for tiiree days
due to absences. On February 6,2009, Plaintiff retumed to work
and was informed that she had
ARENT Fox LLP ATTORNBYS AT L A W
LOS ANCBLES
' Plaintiff initially pled "Friday, November 29,2009." (Id at H
53.) But in light ofthe later reference to "Friday, January
30,2009," as well as common sense, Defendants presume Plaintiff
intended to allege "Friday, January 30, 2009" here, as well.
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been terminated "for attendance issues." She was four months
pregnant at the time. (See id. at ff 53-58,)
Later that month, Plaintiff applied for unemployment benefits.
In March, a representative
ofthe Employment Development Department mformed her that "PANDA
EXPRESS" clauned
that Plaintiffwas still employed but out on materruty leave.
(See id. at ff 59-60.)
m . STANDARD OF DEMURRER
A demurrer tests the legal sufficiency ofthe pleadings. (See
Stanton Road Assocs. v. Pacific Employers Ins. Co. (1995) 36 Cal.
App. 4th 333, 340 ["A general demurrer searches tiie complaint for
a failure to state a cause of action as a matter of law"] [intemal
quotation omitted].) The Court must accept all pleadings as tme,
and consider the content of exhibits attached to the
pleadings and freat thefr contents as trae. (Id.) The Court,
however, need not credit legal conclusions masqueradmg as factual
allegations. (See Excelsior College v. California Bd. of Registered
Nursing (2006) 136 Cal. App. 4tii 1218,1229 ["The court does not .
. . assume tiie tmth of contentions, deductions, or conclusions of
law"].)
Plaintiff fails to plead facts in support of cmcial elements
ofeach of her tort and FEHA
claims against Defendants. Moreover, her attempt to freat all
ofthe Defendants as a single entity
creates sufficient uncertamty as to render the complaint
confusing and ambiguous. Each of
Plaintiffs claims, therefore, fails as a matter of law.
IV. ARGUMENT
A. The Complaint Fails to State Facts that Constitute Anv Cause
of Action
Under Califomia Code ofCivil Procedure 430.10(e), demurrer is
proper where "[t]he pleading does not state facts sufficient to
constitute a cause of action." Plaintiff, as the pleader,
bears the ultimate responsibility for pleading facts that,
presumed to be tme, support the cause of
action alleged. (See Martin v. Bridgeport Community Ass'n, Inc.
(2009) 173 Cal. App. 4th 1024, 1031 ["The plaintiffhas the burden
of showing that the facts pleaded are sufficient to establish every
element ofthe cause of action"].) Ifthe plaintiff fails to
adequately plead each element of the prima facie case ofeach cause
of action alleged, dismissal ofthe entfre action is proper. (See
Lebbos v. State Bar (1985) 165 Cal. App. 3d 656,665 [upholding
demurrer where complaint
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failed "to state the elements necessary for [the] cause of
action" alleged]; see also See v. Joughin (1937) 18 Cal. App. 2d
414,417-418 [upholding demurrer to tiie entfre amended complaint
because amended complaint failed to state a cause of action for any
of three causes of action
alleged].) Here, Plaintiffhas inadequately pled each cause of
action in her Complaint. Each one of
her four causes of action contams nothing but conclusory
allegations of conduct that are
completely unsupported by any allegations of fact. Specifically,
Plaintiffhas failed to allege any
connection whatsoever, beyond gross, unsubstantiated inference,
between her termination and any
alleged discriminatory or retaliatory conduct. Consequentiy,
because Plaintiff cannot
demonstrate that she has pleaded facts sufficient to mamtain any
of tiie Complaint's four causes
of action, this Court must grant this Demurrer, and dismiss her
claims against Defendants.
1. First Cause of Action: Pregnancy/Sex Discrimination
To establish a prima facie case of pregnancy discrunination.
Plaintiff must demonsfrate a
pregnancy-discriminatory motive on defendant's part. (See Kelly
v. Stamps.com, Inc. (2005) 135 Cal. App. 4th 1088,1101.) In other
words, Plamtiff is requfred to allege facts demonsfrating tiiat she
was terminated or otherwise discriminated against because she was
pregnant; she has to show
a "nexus between her pregnancy and her employment temiination
(or other adverse employment action) that would permit a
fact-finder to infer unlawful discrimination. (Doe v. C.A.R.S.
Protection Plus. Inc. (3d Cfr. 2008) 527 F.3d 358, 366 [emphasis
added].)'* She has utterly failed to do so.
Plamtiff makes five fiitile attempts to establish the requisite
nexus that Defendants
violated the FEHA's prohibition on discrimination. First, she
alleges that Defendants terminated
her "because of her pregnancy." (Complaint, f 67.) However, this
is a completely conclusory statement that is utterly devoid ofany
allegation of fact, both in the statement itself and elsewhere
Ul the Complamt. Plaintiffs factual allegations establish that
she was pregnant and that she was
terminated, but they do not establish that she was terminated
because she was pregnant. On the
ARENT Fox LLP ATTORNBYS A T L A W
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* "Because state and federal employment discrimination laws are
sunilar, Califomia courts look to pertinent federal precedent in
applying Califomia statutes " (Trop v Sor^ Pictures Entertainment,
Inc. (2005) 129 Cal. App 4th 1133,1144 [citation omitted].)
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confrary, her own allegations admit that "PANDA EXPRESS"
temiinated her "for attendance
issues," (Complaint, f 58), which reason is supported by the
fact that Plaintiff had been disciplined two times in the three
months preceding her termination for the very same reasons.
(Id. at ff 47,51-52.) Therefore, the only mference a fact-finder
would be permitted to make in this instance is that Plaintiffwas
terminated for reasons relatmg to attendance, not her
pregnancy.
Second, Plaintiff alleges that Defendants refused to "provide
pregnancy
accommodations." (Id. at f 67.) Like the ffrst argument, this
claim is entfrely conclusory, with even fewer factual allegations
to lend it support. Not only are there no facts alleged that
Defendants refused to provide pregnancy accommodations (not even
any claim that she requested accommodations with her seventh
pregnancy), her own allegations establish that she had requested
maternity leave twice and was granted maternity leave twice, the
second one lastmg
approximately six months, she was pemiitted to miss three days
of management fraining for
pregnancy-related sickness, and her doctor's restriction against
her liftmg objects over 50 pounds was accommodated. (Id. at ff
18,25, 28-30, and 42-44.) Thus, again, the only reasonable
inference a fact-finder can make is that Defendants properly
accommodated Plaintiffs
pregnancies.
Thfrd, Plamtiff alleges that Defendants failed to "investigate
discrimination." (Complaint, f 67.) Besides the fact that this
claim is overly broad and vague, in addition to conclusory, there
are no factual allegations demonsfrating a) Plaintiffwas actually
subjected to discrimination, b) even if she was, that Defendants
were on notice ofand had a duty to investigate said
discrimination, and c) that Defendants breached that duty. In
order to show that Defendants should have investigated any alleged
discrimination against her. Plaintiff would have had to
allege facts demonsfrating, ffrst, that discrimination and
retaliation occurred (see TrujiUo v. North County Transit Dist.
(1998) 63 Cal. App. 4tfi 280,288 [ruling tiiat tiiere is no failure
to take reasonable steps to prevent discrimination where no
discrunination took place]), and second, that Defendants knew of
any discrimination retaliation. (Northrop Grumman Corp. v. Workers'
Comp. Appeals Bd. (2002) 103 Cal. App. 4th 1021,1036 [affmning
principle that employers have a legal obUgation to investigate
claims of discrimination when "faced with an accusation made by
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a coworker that a supervisor has engaged m [] discrimination
against a subordinate"]; cf. Thompson v. Monrovia (2010) 186 Cal.
App. 4th 860, 880 ["employer who knows or should have known of
unlawfiil harassment and retaliation, and fails to take immediate
and appropriate
corrective action, may be liable for the resulting damages,
pursuant to Govemment Code section
12940, subdivision (j)(l)"]) But there are no such allegations.
There is not even an allegation that she complained about any
discrimuiatory or retaliatory conduct to Defendants and when
she
did so. Therefore, this claim, too, fails to demonstrate the
requisite nexus for a pregnancy
discrimination cause of action.
Plaintiff next alleges "disparate application of company
practices, procedures, and
policies." (Complaint, f 67.) And like all ofthe foregoing
claims, this argument is entirely conclusory and utterly devoid of
factual allegations to support it. There is absolutely no
allegation to support any claim that Defendants freated
Plaintiff any differently because she was
pregnant, or that they applied thefr policies and procedures to
her unevenly. Without any
allegation of fact to support it, this claim must also fall.
Finally, Plaintiff alleges "otherwise discriminating against
Plaintiff with regard to the
terms and conditions of her employment." (Complaint, f 67.) This
claim is the most conclusory ofthe five. Not only is this
conclusory statement entfrely unsubstantiated by any allegations
of
fact, it is so broad and vague that no adequate response to it
can be made. Therefore, it must also
be cast aside, as should the preceding four claims.
Because all ofthe attempts set forth in this cause of action to
establish a discriminatory
motive or the nexus required to maintain a pregnancy
discrimination claim have failed. Plaintiff
cannot demonsfrate a prima facie case of pregnancy
discrimination. Demurrer as to this cause of
action must therefore be sustained.
2. SecondCauseof Action: Retaliation
In order to establish a prima facie case for retaliation under
the FEHA, a party must allege
facts showing that a causal link, or nexus, exists between
protected activity and an adverse
employment action. (Yanowitz v. L 'Oreal USA, Inc. (2005) 36
Cal. 4tii 1028,1044 ["in order to establish a prima facie case of
retaliation under the FEHA, a plaintiff must show (1) he or she
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engaged in a "protected activity," (2) the employer subjected
the employee to an adverse employment action, and (3) a causal link
existed between the protected activity and the employer's
action"].) But Plaintiffhas not done so here. Instead, she offers
the singularly conclusory statement that "Defendant [sic]
termination of Plaintiff s employment violated Govemment Code
12945(2) and Califomia Code of Regulations 7297.7." (Complaint, f
72.) This attempt at establishing the requisite nexus, if it could
mdeed be called an "attempt," is not
only conclusory, it is vague and unclear. Plaintiff does not
even allege, conclusory as it might be,
that Defendants terminated her for exercising her right to take
maternity leave under the
Califomia Family Rights Act. She just alleges that Defendants
violated the FEHA, without gettmg any more specific than that.
Even ifwe make the deductive leap and assume Plaintiffis
alleging that Defendants
terminated her employment because she exercised her right to
maternity leave, there are no
factual allegations to support such a claim. Her own allegations
establish that she was terminated
for legitimate reasons (i.e., attendance issues). More
importantly, they establish that she was terminated 7-8 months
after retuming from matemity leave and resuming her post as
Assistant
Manager. This is simply too much time, even for the relatively
light burden of establishing a
pruna facie case, to sustain a cause of action for retaliation
based on temporal proximity. (See Cornwell v. Electra Cent Credit
Union (9tii Cfr. 2006) 439 F.3d 1018,1036 [upholding tiie district
court's conclusion that seven months in between plaintiffs
complaint and termination was
"too much time . . . for a reasonable jury to conclude that
[plaintiffs] complaints caused [defendant] to ffre him" (emphasis
added)]; see also Richmondv. ONEOK, Inc. (10th Cfr, 1997) 120 F.3d
205,209 [affirming district court's holding that "the three-month
period between the activity and termination, standing alone, does
not establish a causal connection" (emphasis added)].)
Consequentiy, because the allegations here are entirely
conclusory and unsubstantiated by
any semblance of fact, Plaintiffhas not adequately alleged a
prima facie case for retaliation.
Therefore, Demurrer to this cause of action must be
sustained.
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3. Third Cause of Action: Failure to Prevent Discrimination or
Retaliation
A "failure to prevent" claim under the FEHA is a statutory tort
with the usual tort
elements of duty, breach, causation, and damages. (See TrujiUo
v. North County Transit Dist (1998) 63 Cal. App. 4tii 280,286.) As
described above, in order to estabUsh that Defendants had a duty to
prevent discrimination or retaliation against her, Plaintiff must
ffrst adequately allege
facts showing that discrimination and retaliation actually
occurred. (See id, at 288 [no duty to prevent discrimination where
there was no discrimination].) Because Plaintiffhas not adequately
alleged her claims for pregnancy discrimination and retaliation,
she cannot maintain a cause of
action for failure to prevent discrimination and
retaliation.
Moreover, Plaintiff fails to demonsfrate that Defendants knew or
should have known of
the alleged wrongfiil conduct against her. In order for
Defendants to have a duty to take
reasonable steps to prevent discrimination and/or retaliation,
they must be on notice of such
discrimination and retaliation. (See Northrop Grumman Corp.,
supra [employers have a duty to take action when presented with a
claim of discrimination]; cf. Thompson, supra [parallel provision
in the FEHA, Gov't C. 12940(j)(l), includes a knowledge requfrement
m holding employers liable for failing to take "immediate and
appropriate corrective action" of
harassment].) But, like every other cause of action thus far.
Plaintiff fails to state facts sufficient to support this cause of
action. Instead, she alleges in rather conclusory fashion that
"Defendants
knew or should have known about the unlawful pregnancy
discrimination and retaliation of
Plauitiff." (Complaint, f 77.) Noticeably absent from this claim
are any allegations as to how or why Defendants knew
or should have known, not even an allegation that Plaintiff ever
complained to Defendants or that
Defendants' policies and practices with regard to discrimination
prevention were inadequate or
not followed. There is no allegation of fact establishing that
there was anything to put Defendants
on notice that Plamtiff was allegedly discriminated against at
work for being pregnant or that she
was retaliated against for taking matemity leave. Consequently,
Plamtiff has not stated facts
sufficient to maintain this cause of action because she has not
established a prima facie case for
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failure to prevent. This cause of action must, therefore, be
dismissed by demurrer.
4. Fourth Cause of Action: Adverse Action in Violation of Public
Policy
In order to maintain a cause of action for adverse action in
violation of public policy.
Plaintiff must allege facts not only showing that she engaged m
protected activity and was subject to adverse action, but that the
adverse action was causaUy linked to the protected activity. (See
Turner v. Anheuser-Busch, Inc. (1994) 7 Cal. 4tii 1238,1258-1259 [a
"nexus" must be shown between the employee's protected activity and
the adverse action taken against him]; Holmes v. General Dynamics
Corp. (1993) 17 Cal. App. 4tii 1418,1426.) In tiiis case, at tiie
risk of sounding like a broken record, Plaintiffhas not adequately
alleged that she engaged in protected
activity, neither has she adequately that she was subjected to
adverse employment action in consequence or that she was terminated
because of her engagement m protected activity. Instead,
she merely alleges that the "foregoing adverse employment
actions were perpefrated in violation
of public policy codified in [the FEHA]." (Complaint, f 81.)
Even ifthe Court were to assume that Plaintiff intended to allege
that she engaged in the
protected activity of taking matemity leave and that she
suffered an adverse employment action
later on, tiiere is still no fact allegation to support any
inference that her temiination was the result
of her takmg matemity leave or at all related to her being
pregnant. Absent this essential
component. Plaintiff caimot maintain this adverse action m
violation of public poUcy cause of
action. Consequently, because Plaintiffhas not stated facts
sufficient to maintain her prima facie
case and thereby sustain this cause of action. Demurrer must be
granted, and this claim dismissed.
B. PlaintifFs Attempt to Define and Treat All Defendants as the
Single Entity "PANDA EXPRESS*' Renders the Complaint Uncertain
Under the Code of Civil Procedure, a pleading may be dismissed
on demurrer if it is
uncertain. As used in this subdivision, "uncertainty" includes
ambiguous and unintelligible."
(Cal. Civ. Proc. C. 430.10(f).) A demurrer for imcertainty will
be sustained where the complaint is uncertain about an essential
element ofa cause of action (see Hills Transp. Co. v. Southwest
Forest Industries, Inc. (1968) 266 Cal. App. 2d 702, 706 (affirming
demurrer sustained by trial court where the complaint was
"uncertain about the duration ofthe confract," the breach
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of which was at issue]), or whether the compljiint is so unclear
that the defendant cannot reasonably respond, that is, cannot
reasonably detennine what issues must be admitted or denied
or what claims are dfrected agamst the defendant. (See Khoury v.
Maly's of Calif, Inc. (1993) 14 Cal. App. 4th 612,616.) A demurrer
for uncertainty may Ue ifthe failure to label the parties and
claims renders the complaint so confusmg defendant cannot tell what
he or she is supposed to
respond to. (See WiUiams v. Beechnut Nutrition Corp. (1986) 185
Cal. App. 3d 135,139 [commenting that the failure to comply with a
local rule requiring adequate identification ofthe parties "may
render a complamt confusing and subject to a special demurrer for
uncertainty"].)
In the present matter, Plaintiffhas brought suit against five
defendant entities^Panda
Express, Uic, Panda Express, LLC, Panda Iim, Inc., Panda
Restaurant Group, Inc., and Hibachi-
San, Inc.^which she has lumped into one big, amorphous entity
she defines as "PANDA
EXPRESS" m paragraph 1 ofthe Complaint with no allegations that
they acted as, for example,
some kind of co-venture in regard to all ofthe allegations made
in the Complaint. As a result of
this questionable move, Plaintiffhas rendered it impossible for
each ofthe defendants to properly
and adequately respond to the allegations set forth in the
Complaint. None ofthe Defendants
know what exactly they are supposed to have done. It is not even
clear whether Plaintiff ever
worked for any ofthem, and ifso, which Defendants. The
inevitable result ofthis act is to render
the Complaint so confusmg that Defendants caimot tell what they
are supposed to respond to.
(See Williams, supra.) Consequentiy, this demurrer for
imcertainty lies, and is properly granted. C. The Court Should Deny
Plaintiff Leave To Amend Or. In The Altemative.
Order Plaintiff To Cure Specific Defects in the Pleadings.
Trial courts have "discretion to sustain a demurrer with or
without leave to amend."
(Martin, 173 Cal. App. 4th at 1031.) Defendants request that the
Court deny Plaintiff leave to amend. The present complaint is
deficient, with omissions so patent that they suggest only one
thing: Plamtiff has no facts to fix them. Consequently, because
it is unlikely that Plamtiff can fix
this complaint, the Court should sustain this Demurrer without
leave to amend. (See City of Stockton V. Superior Court (2007) 42
Cal. 4tii 730, 747 ["leave to amend is liberally allowed as a
matter of faimess, unless the complaint shows on its face that it
is incapable of amendment"].)
Although Defendants oppose Plaintiff being granted leave to
amend in light ofthe ^i2^
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Complaint's substantial defects, they recognize that leave to
amend is routmely granted. (Angie M. V. Superior Court (1995) 37
Cal. App. 4tii 1217,1227 ["Liberality in permitting amendment is
the rule, ifa fafr opportunity to conect any defect has not been
given"].) Therefore, ifthe Court grants Plaintiff leave to amend,
Defendants request that Plaintiff be ordered, pursuant to
California Code ofCivil Procedure 472a(c), to amend the pleadmgs
so her Complaint: a) pleads with particularity the alleged wrongful
actions taken by each Defendant during the statutory time period
and b) dismisses her claims against any and all Defendants for
which it cannot plead any wrongful conduct during the statutory
period.
V. CONCLUSION
The Complaint was severely, inadequately pleaded. Not one single
cause of action stated
facts sufficient to constitute a claun. Moreover, Plaintiffs
attempt to bundle all the Defendants
mto one and levy all ofthe allegations against them as if they
were a single entity renders the
Complaint uncertain and unintelhgible. Therefore, for the
foregomg reasons, this Court should
sustain Defendants' Demurrer as to the entfre Complaint.
Dated: February J ^ 2011 ARENT FOX/CLP
Han^^irjonnspn,/ Attomeys fi5i/DefenSiafits PANDA W R E S S ,
INC., PANDA EXPRESS; LLC, PANDA INN, INC., PANDA RESTAURANT GROUP,
DSIC., HIBACHI-SAN, INC.
ARENT Fox LLP ATTORNEYS AT LAW
LOS ANCBLES
13-NOTICE OF DEMURRER AND DEMURRER
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SOKPHY TIN V. PANDA EXPRESS, INC., ETAL. Sacramento Superior
Court Case No.: 34-2010-00090959
PROOF OF SERVICE
I am a citizen ofthe United States. My business address is Arent
Fox LLP, 555 West Fifth Sfreet, 48th Floor, Los Angeles, California
90013-1065. I am employed in the County of Los Angeles where this
service occurs. I am over the age of 18 years, and not a party to
the within cause. On the date set forth below, according to
ordinary business practice, I served the foregoing document(s)
described as:
DEMURRER OF DEFENDANTS PANDA EXPRESS, INC., PANDA EXPRESS, LLC,
PANDA INN, INC., PANDA RESTAURANT GROUP, INC., AND HIBACHI-SAN,
INC. TO PLAINTIFF SOKPHY TIN'S COMPLAINT FOR DAMAGES; MEMORANDUM OF
POINTS AND IAUTHORITIES IN SUPPORT THEREOF
jI (BY FAX) I transmitted via facsimile, from facsimile number
213.629.7401, the '' document(s) to the person(s) on the attached
service list at the fax number(s) set
forth therein, on this date before 5:00 p.m. A statement that
this transmission was reported as complete and properly issued by
the sending fax machine without error is attached to this Proof of
Service.
r n (BY E-MAIL) On this date, I personally fransmitted the
foregoing document(s) via '' elecfronic mail to the e-mail
address(es) ofthe person(s) on Ae attached service Ust.
(BY MAIL) I am readily familiar with my employer's business
practice for coUection and processuig of conespondence for mailing
with the U.S. Postal Service, and that practice is that
correspondence is deposited with the U.S. Postal Service the same
day as the day of coUection m the ordinary course of business. On
this date, I placed the document(s) in envelopes addressed to the
person(s) on tiie attached service Ust and sealed and placed the
envelopes for collection and mailing foUowing ordinary business
practices.
r- l (BY PERSONAL SERVICE) On tiiis date, I delivered by hand
envelope(s) '' containing the document(s) to the persons(s) on tiie
attached service list. rl (BY OVERNIGHT DELFVERY) On tiiis date, I
placed tiie documents in '' envelope(s) addressed to the person(s)
on the attached service Ust, and caused those
envelopes to be deUvered to an ovemight delivery carrier, with
delivery fees provided for, for next-business-day delivery to whom
it is to be served.
II (State) I declare under penalty of perjury imder the laws
ofthe State of California '' that the foregoing is tme and
correct.
Executed on February 23,2011 at Los Angeles, Califomia.
Smith-Weissmann
PROOF OF SERVICE
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SOKPHY TIN V. PANDA EXPRESS, INC.. ETAL. Sacramento Superior
Court Case No.: 34-2010-00090959
SERVICE LIST
Lawrance A. Bohm Bohm Law Group 4600 Norttigate Blvd. Suite 210
Sacramento.CA 95834 PHONE: 916-927-5574 FAX: 916-927-2046
PROOF OF SERVICE