demurrer - filed in california

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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)

NOTICE OF DEMURRER AND DEMURRER

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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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28 ARBNT FOX LLP ATTORNEYS A T L A W

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



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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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, 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


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



(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


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

- 1 NOTICE OF DEMURRER AND DEMURRER

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28 ARBNT Fox LLP ATTORNEYS AT LAW

Los ANCBLES

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


Los ANGELES

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28 ARENT Fox LLP ATTORNEYS AT LAW

Los ANGELES

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.

^ 3 ^ NOTICE OF DEMURRER AND DEMURRER

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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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28 ARENT FOX L L P ATTORNEYS A T L A W

LOS A N C B L E S

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

Los ANGRLBS

* "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.


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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

demurrer - filed in california

Documents

panda inn

panda restaurant group

notice of demurrer

cause of action adverse

causes of action

accompanying demurrer

cause of action retaliation

cause of action failure