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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)

E. DEFENDANTS’ DEMURRER MUST FAIL BECAUSE PLAINTIFFS’ HAVE SUFFICIENTLY STATED A CAUSE OF ACTION FOR VIOLATION OF BUSINESS AND PROFESSIONS CODE § 17200 ET SEQ.

PLAINTIFFS’ COMPLAINT SUFFICIENTLY ALLEGES AN ONGOING VIOLATION.

To sufficiently plead a cause of action under this statute, Plaintiff must plead with specificity 1) an act or practice, 2) that is unfair or unlawful. See e.g., Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. 20 Cal 4th at 187; see also Motors, Inc. v Times-Mirror Co., 102 Cal. App. 3d at 740 (ruling that rarely, if ever… should an unfair UCL claim be decided by demurrer ). The statute defines unfair competition broadly as any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1.

The Court has broad discretion to determine what business acts are considered unfair under Bus. & Prof. C. § 17200. See e.g., Motors, Inc. v. Times Mirror Co. (1980) 102 CA3d 735, 740. Single acts are actionable under Bus. & Prof. C. § 17200. Klein v. Earth Elements. Inc. (1997) 59 Cal. App.4th 965, 969, fn. 3 (stating that the plain meaning of the [1992] amendment, as enacted, is that the [Unfair Competition Act] now covers single acts of misconduct. ); see also Podolsky v. First Healthcare Corp., Cal. App. 4th at 653-54, 58 Cal. Rptr.2d at 102; Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 C4th 553, 570. Under Bus. & Prof. C. § 17204, any board, officer, person, corporation or association or… any person who has suffered injury in fact and has lost money or property as a result of such unfair competition can be a Plaintiff. Under Bus. & Prof. C. § 17201, any person or organization be a Defendant.

A demurrer for uncertainty will be sustained only where the complaint is so bad that the defendant cannot reasonably respond; i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him. Khoury v. Maly’s of Calif.. Inc. (1993) 14 Cal.APp.4th 612, 616. Demurrers for uncertainty will almost certainly be overruled where the facts alleged in the complaint are presumptively within the knowledge of the demurring party or ascertainable by invoking discovery procedures are not dispositive of one or more causes of action. Id. Furthermore, a demurrer made on the ground of uncertainty must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice case and its proceedings.)

COMPLAINT FOR DAMAGES (1) Negligence/ Medical Malpractice; (2) Willful Misconduct and Battery
[Brought by Plaintiff Sura Bhandi as against all Defendants]
COUNT ONE: NEGLIGENCE/ MEDICAL MALPRACTICE

1. Plaintiff Sura Bhandi is, and at all times relevant to the matters resident of Sacramento County.

2. Defendant Wellness Center (WELLNESS) is a California corporation, which does business in Sacramento County, and which is engaged, among other things. in the business of rendering chiropractic and other health care and services to the general public for compensation, and which held itself out to the general public and to Plaintiff Sura Bhandi to be competent in rendering chiropractic and other care and services.

3. Defendant Tim Jones, D.C., is a chiropractor, licensed to practice in the State of California, who held himself out to the general public and to Plaintiff Sura Bhandi to be competent and skilled in rendering chiropractic and health care, and to render such chiropractic and health care with the same skill, prudence, and diligence as other members of his profession commonly possess and exercise.

4. The true names and capacities, whether individual, corporate, associate, or otherwise, of Defendants DOES 1 through 100, inclusive, are unknown to Plaintiff who therefore sues said DOE Defendants by fictitious names.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

ARGUMENT
SUMMARY JUDGMENT STANDARDS IN WRONGFUL TERMINATION
A plaintiff in a wrongful termination case can overcome summary judgment by one of two ways: 1) offering direct evidence of discriminatory or retaliatory intent or 2) satisfying the elements of the burden shifting process outlined in McDonnell Douglas Corp. v. Green and subsequent cases. (1973)411 U.S. 792, 802-804

Direct evidence is only one of the ways that a plaintiff can successfully oppose a summary judgment motion. When an employee offers direct evidence of discrimination, summary judgment is not appropriate and the burden shifting analysis need not be conducted. Godwin v. Hunt Wesson, (9th Cir. 1998) 150 F.3d 1217, 1221. However, direct evidence of discrimination is not required. Id. The Supreme Court stated that after the prima facie case has been established, merely the rejection of the defendant’s proffered reason will permit the trier of fact to infer the ultimate fact of discrimination. Id. at 147 (citing St. Mary’s Honor Center v. Hicks, (1993)509 U.S. 502, 511.

In addition to the direct evidence route, the burden shifting analysis can be used. California courts analyzing claims of discrimination under the FEHA apply the same shifting burdens analysis used by federal courts under Title VII. The analysis requires: (1) the Plaintiff first establish a prima facie case of discrimination; (2) the defendant then must produce evidence demonstrating a legitimate, non-discriminatory reason for the termination; and (3) the plaintiff must present evidence creating a triable issue of fact that the employer’s stated reason was untrue or a pretext for a discriminatory animus. McDonnell Douglas Corp. v. Green. 411 U.S. 792, 802-04 (1973); Guz v. Becthtel Nat’l Inc. 24 Cal.4th 317, 354-56 (2000)[FN4].

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/insurance coverage case and its proceedings.)

Blue Shield’s argument that this court should conformist ruling on this motion to a statement of decision recently signed by a Los Angeles County Superior Court Judge in another Blue Shield case is specious. The facts of the two cases are entirely dissimilar. Further, the court in that case did not consider the Court of Appeal’s directive that plans must investigate outside the applications before making initial coverage decisions. His statement that the Lawrence decision “does not require a plan to check every statement in every application to determine whether the applicant is lying” entirely misses the mark.

The opinion merely requires plans to make a reasonable inquiry outside the application. Whether a plan did that in a particular case will be a question of fact for the jury. Next, the Los Angeles case is now on appeal. Finally, as explained above and elsewhere in this opposition, the Court of Appeal has determined that the material issues presented in this case are disputed and require trial on their merits. They cannot be resolved on summary judgment.

PLAINTIFFS HAVE DEMONSTRATED THEIR ENTITLEMENT TO A TRIAL ON THE ISSUE OF PUNITIVE DAMAGES.It is clear that Blue Shield conducted business in 2000 just as it had before the enactment of Health and Safety Code section 1389.3. It did not change its underwriting practices in the slightest manner in the nine years preceding the plaintiffs’ application.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

ACTS OCCURRING PRIOR TO JUNE 10, 2004 ARE ACTIONABLE UNDER THE CONTINUING VIOLATION DOCTRINE

The defendant concedes that evidence of retaliation or discrimination outside the technical limitation period may still be actionable under the continuing violation doctrine. Here, there was extensive evidence to justify the jury’s application of the continuing violation doctrine.

A. Plaintiffs Retaliation and Disability Discrimination Claim.
It should be noted that plaintiff’s retaliation and disability discrimination claims were not based on one discrete act of retaliation or discrimination. Rather, his claims were based on a series of retaliatory and discriminatory acts that ultimately led to the formal end of his employment on January 20, 2005. As noted by the California Supreme Court in Yanowitz; there is no requirement that the employer’s retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries. Id, at 1055. Plaintiffs employment did not end abruptly-it unraveled slowly based on a series of related acts that were intended to prevent him from returning to work.In Yanowitz, the plaintiff alleged that she had suffered a series of retaliatory acts. The defendant contended that retaliatory acts that occurred prior to 1-year before the filing of her DFEH administrative charge were barred by the statute of limitations set forth in Government Code §12960(d). The Yanowitz Court disagreed, finding that the continuing violation doctrine applied to claims of retaliation that are based on a series of unlawful acts, some of which are within the limitations period. The Court held that retaliation claims based on a series of related acts constitute a continuing violation if they meet the following requirements: (1) the acts are sufficiently similar in kind; (2) have occurred with reasonable frequency; and (3) have not acquired a degree of permanence. Id., at 1058.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

THE REASONS FOR HER TERMINATION ARE TOTALLY FABRICATED

Defendant’s reasons for termination are totally fabricated. Plaintiff never yelled at Mr. Chan in the meeting or at any other time. To the contrary, Plaintiff spoke in a normal voice and was not aggressive at all. It was Mr. Chan that was yelling. Also, Plaintiff never refused to change and never refused to do what Mr. Chan said. She always followed his directions. Plaintiff was not insubordination and she was not rude, or harassing, or discourteous with a customer on June 21, 2006 or at any other time to management, any customer or any employee. To the contrary, she always acted professionally towards management, employees and the customers and never violated and polices.

IN VIOALTION OF DEFENDANT”S OWN POLICIES, PLAINTIFF’S COMPLAINTS OF HARASSMENT WERE NEVER INVESTIGATED

Defendant has specific policies that require an impartial and full investigation of an employee’s complaints of harassment. Under Healthmart Foods policies, if a Store Leader gets a complaint where there is even an indication of unlawful harassment, it is mandatory that complaint be investigated and the investigation be documented. The specific investigation steps wuld be to: 1) speak with the person claiming harassment, 2) obtain written statements from the employee, 3) talk with the other parties involved and obtain written statements, 4) inform the employee of the results of the investigation and 5) review the results of the investigation with Team Member Services. Plaintiff made multiple complaints of pregnancy and accommodation harassment to Mr. Davis directly and to Mr. Chan.

Mr. Davis admits that Plaintiff complained about harassment. Mr. Davis admits that Plaintiff was complaining that the counseling she got was harassment. He even put in an email that she was complaining of harassment.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/insurance coverage case and its proceedings.)

BLUE SHIELD DID NOT COMPLETE ITS MEDICAL UNDERWRITING OR TAKE STEPS TO ANSWER ALL REASONABLE QUESTIONS ARISING FROM THE INFORMATION CONTAINED IN THE APPLICATION BEFORE ISSUING COVERAGE.

Health and Safety Code section 1389.3, enacted in 1991, provides as follows:

No health care service plan shall engage in the practice of postclaims underwriting. For purposes of this section, postclaims underwriting means the rescinding, canceling, or limiting of a plan contract due to the plan’s failure to complete medical underwriting and resolve all reasonable questions arising from written information submitted on or with an application before issuing the plan contract. This section shall not limit a plan’s remedies upon a showing of willful misrepresentation.

On December 24, 2008, the Court of Appeal issued its decision in plaintiffs’ appeal from an earlier order in this case granting defendant’s first motion for summary judgment. See Sally Lawrence v. California Physicians’ Service, 158 Cal.App.4th 452, 69 Cal.Rptr.3d 789, 2007 Cal.App. LEXIS 2083 [mod. January 22, 2008, with no change of judgment, ___ Cal.App.4th ___ (2008)]. See also plaintiffs’ request for judicial notice of the Lawrence opinion filed concurrently with this opposition. In that opinion, the Court of Appeal specifically determined that, with each application, health plans must take reasonable steps and make reasonable inquiries outside the four corners of the application to confirm the accuracy of the information provided before issuing coverage. The rational for the requirement is to prevent the very calamity that has befallen plaintiffs in this case, i.e., the postclaims rescission of a plan contract that would not have been issued initially if the plan had done its medical underwriting and true risk assessment before issuing coverage.

In this case, it is clear that Blue Shield did not complete its medical underwriting before issuing its contract. Defendant’s separate statement merely confirms that it did no more than examine its own internal records to see whether plaintiffs had any prior health history with Blue Shield.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

THERE IS DIRECT EVIDENCE THAT THE TERMINATION WAS MOTIVATED BY PLAINTIFF’S PREGNANCY AND COMPLAINTS

There is ample direct evidence that Plaintiff was fired over her pregnancy/accommodation and complaints. First, both Mr. Davis and Mr. Chan constantly told Plaintiff to quit or go on disability over her pregnancy and accommodation requests. Second, the other comments that were made (i.e., don’t give a shit about your claims of harassment, pregnant women have hormones and attitudes and you should quit or go on disability, can’t ask for help to lift things, etc.) were made by Mr. Davis and Mr. Chan as well. Third, when Plaintiff asked to go to the doctor she was suspended to not going back to work.

Aside from all the comments and statements there is further direct evidence in the actions taken against her. First, Plaintiff was verbally disciplined for talking about her pregnancy. Healthmart Foods uses a progressive discipline scheme with the typical steps being: 1) verbal, 2) 1st written, 3) 2nd written, and 4) final. The verbal/action plan for telling people she was pregnant was the first step of the discipline. In the termination decision, Mr. Davis looked back to see if she had each step and the fact that she did factored into his decision to fire her. He very possibly would not have fired her had she not had all the steps of the discipline.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace/sex discrimination case and its proceedings.)

If the defendant believed Mr.Carter was permanently disabled as a firefighter, then it had an ongoing duty under the law to alert him to job vacancies and to attempt to place him in vacant positions outside the Fire Department. See See Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 947; See Spitzer v. Good Guys, Inc. (2000) 80 Cal.App.4th 1376, 1389; Jensen v. Wells Fargo (2000) 245 Cal.App.4th 245, 263; California Code or Regulations, Title 2, §7293.9(a).

The trial testimony is also clear that from April 26, 2004 through the end of Mr.Carter’s employment in January of 2005, the City failed to schedule an interactive process meeting to discuss accommodation strategies. This was an ongoing violation of the law that continued well into the one-year statutory period. Director Ezell conceded that this was an oversight and that had she engaged in the interactive process Mr.Carter’s employment might have been saved. She also conceded that instead of proceeding with the retirement application into the one-year statutory period, she could have retracted the application and instead granted Mr.Carter additional medical leave as an accommodation. Again, allowing a medical leave of absence for an employee to recover from a perceived disability is a form of reasonable accommodation that was continuously rejected by the defendant well into the one-year statutory period.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this automobile accident/insurance coverage case and its proceedings.)

PLAINTIFFS’ OPPOSING SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS DEMONSTRATES THAT DEFENDANTS FACTS ARE DISPUTED AND THAT DEFENDANT’S MOTION MUST THEREFORE BE DENIED.

Plaintiffs’ separate statement of undisputed facts has disputed nearly all of defendant’s facts, and it has set forth 22 additional undisputed material facts. Even if defendant responds to plaintiffs’ additional facts in a reply memorandum, those facts will still require jury resolution.

Plaintiffs have clearly demonstrated that there are triable issues of fact whether Blue Shield complied with Health and Safety Code section 1389.3, as explicated by the Lawrence opinion, before issuing coverage. There are also triable issues (as the Lawrence opinion makes clear) whether Bob Lawrence’s signature on the application constituted a willful misrepresentation. And there are triable issues of fact surrounding the nature of Blue Shield’s conduct, whether it calculated to eliminate up-front risk and maximize profit by deferring the normal underwriting costs until confronted, post-issuance, with cases in which claims exceed premiums paid. Defendant’s experts are expected to testify that that appears to have been the Blue Shield business strategy and policy as evidenced by Blue Shield’s underwriting practices and their ambiguous application format, among other things.

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