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LAWRANCE A. BOHM (SBN 208716) SIANGAN. SMITH (SBN 269963) Bohm Law Group 4600 Northgate Blvd. Suite 210 Sacramento, GA 95834 Phone (916) 927-5574 Fax (916) 927-2046 Attomey for Plaintiff SOKPHY TIN

SUPERIOR COURT OF THE STATE OF CALIFORNIA

GOUNTY OF SACRAMENTO

SOKPHY TIN,

Plaintiff,

V.

PANDA EXPRESS, INC., PANDA EXPRESS LLC, PANDA INN, INC., PANDA RESTAURANT GROUP, INC., HIBAGHI-SAN, ING. and DOES 1-100, inclusive,

Defendants.

CaseNo. 34-2010-00090959

PLAINTIFF'S OPPOSITION TO DEFENDANTS' DEMURRER

Date: June 29, 2011 Time: 2:00 p.m. Dept.: 53 RefNo.: 1530457

Plaintiff, SOKPHY TIN, respectfully submits the following points and authorities in

Opposition to Defendants' Demurrer.

I. INTRODUCTION

Plaintiff SOKPHY TIN (hereafter "Plaintiff) filed a complaint alleging four causes of action against Defendants Panda Express, Inc., Panda Express, LLC, Panda Inn, Inc., Panda

Restaurant Group, Inc., and Hibachi-San, Inc. (hereafter "Defendants"). Plaintiffs complaint included actions for: (1) Pregnancy/Sex Discrimination, (2) Retaliation (CFRA), (3) Failure to Prevent Discrimination and/or Retaliation, and (4) Adverse Action in Violation of Public Policy. Defendants have now filed a demurrer as to all four causes of action, on two different

grounds. First, Defendants argue that each of Plaintiff s claims fails to state facts sufficient to

1 PlaintifT's Opposition to Defendants' Demurrer TFN V PANDA EXPRESS, INC , et al

Lawrance A Bohm, Esq Bohm Law Group

1 constitute a cause of action. Gal. Code Giv. Proc, 430, subd. (e). Second, Defendants argue 2 that Plaintiffs claims are "uncertain" because Plaintiff throughout her complaint refers to all

3 five corporate defendants, collectively as "Panda Express." Gal. Code Civ. Proc, 430, subd. 4 (f). 5 Defendants' demurrer should be overruled on all counts challenged, for the following

6 reasons:

7 1) In ruling on a demurrer, the Court only looks to the face of the pleadings, with 8 liberal construction to be granted in construing the compliant;

9 2) Under this standard. Plaintiffs causes of action are all sufficiently pled under 10 California law;

11 3) Demurrers based on "uncertainty" are strictly construed, because ambiguities may 12 be cleared up through discovery; and

13 4) Any defects in Plaintiffs causes of action can easily be cured with leave to amend 14 the complaint.

15 IL STATEMENT OF FACTS

16 Plaintiff began her employment with Panda Express as counter help in July of 2004 at

17 the West Sacramento location. Plaintiffs Complaint ("Complaint"), t 10- Around October 18 2004, Plaintiff became pregnant with her fifth child. Complaint, ^ 1 1 . Shortly after leaming

19 she was pregnant, Plaintiff was promoted to assistant manager in training, and transferred to the

20 Downtown Sacramento location with a pay increase. Complaint, ^ 1 4 . By late November

21 2004, Plaintiff completed her training and received her final manager in training evaluation,

22 with a 97 percent passing rating, and was now the assistant manager for the West Sacramento

23 location. Complaint, TITI19-20.

24 In or around January 2005, Plaintiff notified the West Sacramento general manager,

25 Yan Hua Liu (Liu) of her pregnancy, to which Liu responded by questioning Plaintiff as to 26 "why she has so many children and why she continues having more babies." Complaint, 1| 21. 27 Plaintiff later overheard Liu comment that had she known of Plaintiffs pregnancy earlier,

28 Panda Express would not have trained her to become an assistant manager. Complaint, ^ 22. 2

PiaintifFs Opposition to Defendants' Demurrer Lawrance A Bohm, Esq TIN V PANDA EXPRESS, INC , et al Bohm Law Group

1 On or around January 25, 2005, during the same month in which she informed Panda Express

2 of her pregnancy. Plaintiff was told of "concems with her work performance." In or around

3 Febmary 2005, Plaintiff gave Liu a doctor's note, indicating she could not lift over fifty

4 pounds. The next month, around mid-March, Plaintiff received a disciplinary action report

5 fi-om supervisor Wen Hao Cheng for "poor work performance." As a result, Plaintiff was

6 demoted to counter help with a pay decrease, and threatened with future termination.

7 Complaint, T^l 26, 27. Plaintiff went on matemity leave during that same month. Complaint,^

8 28.

9 Plaintiff retumed to work after the birth ofher fifth child, around June 2005. In October

10 2006, she received a pay increase, and in May 2007, she was promoted to assistant manager in

11 training and transferred to a location in Davis, Califomia. Plaintiff received strong weekly

12 assessments throughout her training. Complaint, THJ 34-38. Inor around late June, Plaintiff was

13 transferred back to Sacramento location (Del Paso Road) as assistant manager. Complaint, ^ 14 39. Plaintiff became pregnant with her sixth child around August 2007. Complaint, ^ 40. She

15 notified Chandiawhata of her pregnancy in November 2007. Complaint, Tl 41. Around January

16 2008, Plaintiff notified Sacramento general manager, Maria Vasquez that she needed to be

17 placed on early matemity leave due to pregnancy complications. Complaint, T} 42. OnMarch 18 28, 2008, Plaintiff gave birth to her sixth child. Complaint, 143.

19 Plaintiff retumed to work on June 15, 2008. Complaint, j^ 44. In August 2008, Plaintiff 20 spoke with the area coach of operations, Kai-Yi Wang about permanently becoming the general

21 manager ofthe Davis location, to which Wang responded that she should "just worry about 22 taking care ofher children since she had so many." Complaint, ^ 46.

23 Around November 2008, Plaintiff became pregnant with her seventh child, and

24 informed general manager, lyamu that same month. Complaint, Tfl 49, 50. lyamu responded

25 by asking Plaintiff why she had so many kids and whether she received welfare benefits.

26 Complaint, ^ 50. During that same month. Plaintiff was called in to help out the West

27 Sacramento location by general manager, Justin Gen. When lyamu called Plaintiff and

28 questioned her about not showing up to work, she explained that Gen called her in, and was 3

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supposed to call lyamu to let him know. lyamu wrote Plaintiff up for a "no-call, no show" for

the day, and later received a written waming for the same incident. Complaint, Ij^ 51, 52. On or around January 22, 2009, Plaintiff made a request to take an upcoming Friday,

January 30, 2009 off from work, which was approved by the general manager. Complaint, ^1

53-55. On Febmary 2, 2009, Plaintiff was suspended for three days from Panda Express, "due

to absences." Complaint, ^ 57. When Plaintiff retumed to work on Febmary 6, 2009, she was

informed she had been terminated and was given her final check. Plaintiffs termination papers

listed Febmary 2, 2009 as her termination date and the reason given was for "attendance

issues." Complaint, ^ 58. On or arotind Febmary 21,2009, Plaintiff applied for unemployment

benefits. Complaint, Tf 59. On or around March 25, 2009, Plaintiff was contacted by and

Employment Development Department representative and informed that Panda Express was

claiming that she had not been terminated, but was out on matemity leave. Plaintiff explained

she had been terminated on Febmary 2, 2009 when she was four months pregnant. Complaint,

160.

IIL STANDARD OF DEMURRER

A. Complaints attacked on demurrer are liberally construed.

"A demurrer tests only the legal sufficiency of the allegations. It does not test their

tmth, the plaintiffs ability to prove them, or the possible difficulty in making such proof."

Saunders v. Superior Court (1994) 27 Cal.4th 832, 840. In assessing whether a cause of action survives a demurrer, a court may only consider what is on the face of the pleading, or what is

subject to judicial notice. Code Civ. Proc, 430.30, subd. (a); Blank v Kirwan (1985) 39 Cal.3d311,318.

For purposes of testing the sufficiency of the causes of action within a complaint, the

demurrer admits all material facts properly pleaded, "however improbable they may be."

Gervase v Superior Court (1995) 31 Cal.App.4th 1218, 1224. Accordingly, a court must deny a demurrer when a party states a cause of action "under any possible legal theory," regardless

ofthe possible difficulties of proof Aubry v Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967 (emphasis added); Clausen v Superior Court (1998) 67 Cal.App.4th 1253, 1255. Even where a

4 PlaintifTs Opposition to Defendants' Demurrer Lawrance A Bohm, Esq TIN V PANDA EXPRESS, INC , et al Bohm Law Group

1 "plaintiff may be mistaken as to the nature of the case, or the legal theory on which he or she

2 can prevail...if the essential facts of some valid cause of action are alleged, the complaint is

3 good against a general demurrer. Quelimane Co v. Stewart Title Guaranty Co. (1998) 19 4 Cal.4th 26, 38-39. Additionally, the court must constme the allegations "liberally," always

5 "with a view to substantial justice." Code Civ. Proc, 452. 6 B. Plaintiff must be granted to leave to amend if there is a reasonable possibility

7 that amendment would cure defects in her complaint.

8 If a complaint does not state a cause of action, but there is a reasonable possibility that

9 the defect can be cured by amendment, leave to amend must be granted. Blank v. Kirwan,

10 supra, 39 Cal.3d at 318 (emphasis added). To sustain a demurrer without leave to amend under 11 those circumstances constitutes an abuse of discretion. Id.

12 "Where the complaint is defective, '[i]n the furtherance of justice great liberality should 13 be exercised in permitting a plaintiffto amend his complaint, and it ordinarily constitutes an

14 abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable

15 possibility that the defect can be cured by amendment. [Citations.]' " Scott v. City of Indian 16 ^e//.y(1972)6Cal.3d541,549. 17 C. Demurrers premised on grounds of "uncertainty" are strictly construed.

18 "A demurrer for uncertainty is strictly constmed, even where a complaint is in some

19 respects uncertain, because ambiguities can be clarified under modem discovery procedures."

20 Khoury v Maiy's of California, Inc (1993) 14 Cal.App.4th 612, 616. (see also Rutter, Civ. 21 Proc. Before Trial, 7:85 (citing Khoury, supra, for the proposition that a demurrer for 22 uncertainty will only be sustained when the complaint is so bad that the defendant cannot

23 reasonably respond, i.e. that he catmot reasonably determine what issues must be admitted or

24 denied, or what counts or claims are directed towards him). Furthermore, the demurrer's 25 accompanying points and authorities must specify exactly how and why the complaint is

26 uncertain. "Generally, the failure to specify imcertain aspects of a complaint will defeat a

27 demurrer based on the grounds of uncertainty." Fenton v. Groveland Community Services Dist.

28 (1982) 135 Gal.App.3d 797, 809. Lastiy, a plaintiff " '...need not particularize matters 5

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'presumptively within the knowledge ofthe demurring' defendant.' [Citation.]" Id at 810; quoting Smith v. Kern County Land Co. (1958) 51 Gal.2d 205, 209.

IV. ARGUMENT

A. Plaintiffs Complaint Sufficiently Pleads all Four Causes of Action.

1. Plaintiffs First cause of action for Pregnancy/Sex Discrimination

Defendants contend that Plaintiff has failed to allege any facts that establish: I) a nexus between her being pregnant and termination, 2) the refiisal of any defendant to accommodate her pregnancy, 3) the failure of any defendant to investigate discrimination against her after notification, 4) the disparate application of company practices against her as a pregnant woman, "or any discriminatory conduct whatsoever, for that matter."

Pregnancy discrimination is a form of gender discrimination prohibited by FEHA. Cal.

Govt. Code, 12940, subd. (a); Kelly v. Stamps.Com Inc. (2005) 135 Cal.App.4th 1088, 1097. To establish a prima facie case of pregnancy discrimination, a plaintiff must show that her

employer knew she was pregnant and evidence of pregnancy-discriminatory motive on

defendant's part. Kelly v. Stamps.Com Inc., supra, 135 Gal.App.4th at 1101. Courts have long

recognized that direct evidence of discriminatory intent is rare, which is why Califomia

adopted the three-stage burden-shifting test established by the United States Supreme Court in

McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 for trying discrimination claims based on a theory of disparate treatment. Guz v. Bechtel National, Inc. (2000) 24 Gal.4th 317, 356-357.

Plaintiffs complaint establishes that: (I) at the time of her tennination, Plaintiff was pregnant (Complaint, T| 57); (2) less than three months before Plaintiffs termination. Defendants knew Plaintiff was pregnant (Complaint, t 50); and (3) When general manager lyamu leamed of Plaintiffs pregnancy, he asked why she had so many kids and whether she

received welfare benefits (Complaint, Tf 50). In addition to lyamu's imwelcomed comments in response to Plaintiffs 2008 pregnancy, comments were made by Panda Express management

in reaction to her previous pregnancies as well.

For example, in January 2005, when Plaintiff notified general manager Yan Hua Liu of

PlaintifTs Opposition to Defendants' Demurrer Lawrance A Bohm, Esq TIN V PANDA EXPRESS, INC , et al Bohm Law Group

1 her pregnancy, she too asked Plaintiff "why she has so many children and why she continues

2 having more babies." Complaint, Tf 21. Plaintiff later overheard Liu comment that "had she

3 known of TIN'S pregnancy earlier, PANDA EXPRESS would not have trained her to become

4 an assistant manager." Complaint, Tf 22. Not only that, shortly after informing Defendants of

5 her need for pregnancy accommodations in 2005, Plaintiff was disciplined, threatened with

6 termination, and demoted with a pay decrease for alleged performance problems. Complaint,

7 TIT! 23-27. Prior to informing Defendants of her pregnancy. Plaintiff had an excellent

8 performance record. Complaint, Tf 19. Similarly, shortly after notifying Defendants of her

9 pregnancy in 2008, she was terminated for purported "attendance issues," even though she

10 received prior permission for her absences. Plaintiffs Complaint, TfTf 50-53, 57, 58.

11 Defendants agree that in establishing a nexus between pregnancy and adverse

12 employment action, there only need be enough facts to permit a fact-finder to infer unlawful

13 discrimination. See Defendants' Demurrer, 6:15-20; citing Doe v. C.A.R.S Protection Plus,

14 Inc. (3d Cir. 2008) 527 F.3d 358 366 (emphasis added). Given tiie remarks by Defendants 15 regarding her pregnancies, her subsequent negative performance reviews (after her 2005 16 pregnancy), and her termination for purported "attendance issues," even though she received 17 prior permission for her absences (after her 2008 pregnancy), there is more than enough for a 18 fact-finder to infer that Plaintiff was unlawfully discriminated against because of her

19 pregnancy. Should the Court find the allegations in Plaintiffs first cause of action insufficient,

20 Plaintiff is confident that any defects can be cured by amendment.

21 2. Plaintiffs Second cause of action for Retaliation

22 Defendants next contend that Plaintiff fails to allege facts that support her retaliation

23 claim. In order to establish a prima facie case for retaliation, a plaintiff must show that: (1) 24 plaintiff engaged in a protected activity; (2) the employer subjected plaintiff to an adverse 25 employment action; and (3) a causal link exists between the protected activity and the 26 employer's action. Yanowitz v. L 'Oreal USA, Inc. (2005) 36 Cal.4tii 1028,1044. 27 At the outset, Plaintiff notes that Defendants' reliance on federal case, Cornwell v.

28 Electro Cent. Credit Union (9th Cir. 2006) 439 F.3d 1018, 1036 is misplaced. Defendants cite 7

PlaintifTs Opposition to Defendants' Demurrer Lawrance A Bohm, Esq TfN V PANDA EXPRESS, INC , et al Bohm Law Group

1 Cornwell, for the proposition that Plaintiffs termination 7-8 months after retuming from

2 matemity leave is too long of a period for the jury to conclude that Plaintiffs protected 3 activities caused Defendants to fire her. Demurrer, 9:14-21. This assertion ignores the fact that

4 less than three months before being terminated. Plaintiff notified Defendants of her subsequent

5 pregnancy, and shortly after received unwarranted write-ups. Defendants also rely on federal

6 case, Richmond v. ONEOK, Inc (IOth Cir. 1997) for the proposition that a three-month period 7 between the activity and termination, standing alone, does not establish a causal connection."

8 Demurrer 9:21-24 (emphasis added.) This, too, assumes Plaintiffs retaliation claim is based 9 solely upon the timing of events. However, Defendants' alleged retaliation is based on much

10 more than mere timing.

11 Plaintiffs complaint alleges that "Plaintiff exercised her right to request time off from

12 work due to her pregnancy condition pursuant to the California Family Rights Act," and that,

13 Defendants' "termination of Plaintiff s employment violated Govemment Code 12945 (2) and 14 Titie 2 ofthe Califomia Code of Regulations 7297.7." Complaint, TfTl 71, 72. It is clear tiiat 15 Plaintiffs requests for accommodation and taking protected leave constituted a protected

16 activity. Flait v. North American Watch Corp (1992) 3 Cal.App.4th 467, 477. Furthermore, it 17 is clear that Plaintiff suffered adverse employment actions:

18 In 2005, she was disciplined and demoted with a pay decrease shortly after she

19 informed Defendants of her need for accommodation due to her pregnancy.

20 Complaint, tTI 21-27.

21 In 2008, in the same month that Plaintiff notified Defendants ofher pregnancy, she

22 was written up for a "no-call, no-show," for reporting to a different store at another

23 manager's direction. Complaint, Tf 51. Shortly after that, Plaintiff was terminated

24 for what Defendant claimed to be "attendance problems," despite the fact that

25 Plaintiff received managers' approval for days off Complaint, Tf 53-58.

26 Given the history of Defendants' disparate treatment of Plaintiff in connection with her

27 previous pregnancies, a fact-finder has more than enough information to infer that the real

28 reason for terminating Plaintiff was because she had exercised her right to request time off 8

Plaintiffs Opposition to Defendants' Demurrer Lawrance A. Bohm, Esq TfN V PANDA EXPRESS, FNC, et al. Bohm Law Group

1 from work due to her pregnancy condition pursuant to the Califomia Family Rights Act.

2 However, ifthe Gourt determines that Plaintiffs complaint is defective for lack of specificity,

3 such a defect can be easily cured by amendment.

4 3. Plaintiffs Third cause of action for Failure to Prevent Discrimination or

5 Retaliation

6 Defendants' argument that Plaintiff has failed to allege her third cause of action for

7 Failure to Prevent Discrimination or Retaliation, is entirely based on the claimed insufficiencies

8 regarding Plaintiffs first two causes of action for discrimination and retaliation. Since

9 Plaintiffs first two causes of actions are sufficiently pled. Defendants' demurrer to Plaintiffs

10 third cause of action must fail on that basis.

11 Defendants further claim that Plaintiffs complaint fails to establish how or why

12 Defendants knew or should have known ofthe discrimination and/or retaliation. Demurrer,

13 10:21-25. Because the individuals engaging in discriminatory conduct were Defendants' own

14 managers - the same individuals who had the duty to prevent such discrimination and take

15 appropriate corrective action upon leaming of it - Plaintiff did not find it necessary to establish

16 Defendants' knowledge by pointing out such an obvious fact. Nonetheless, ifthe Gourt agrees

17 that Plaintiffs allegations as to the third cause of action are insufficient, Plaintiff can be more

18 specific in an amended complaint.

19 4. Plaintiffs Fourth cause of action for Adverse Action in Violation of Public

20 Policv

21 As to Plaintiffs fourth and final cause of action. Defendant claims Plaintiff has not

22 sufficiently alleged that she engaged in a protected activity, nor that she was subjected to an 23 adverse employment action or termination as a result of engaging in any protected activity. To

24 establish a claim for Adverse Action in Violation of Public Policy, a plaintiff must allege facts

25 showing: (1) the employee engaged in a protected activity; (2) the employer terminated her (or 26 took other adverse employment action); and (3) there was a nexus between the adverse action 27 and public policy.

28 Plaintiffs Complaint establishes that she engaged in a protected activity when she 9

Plaintiffs Opposition to Defendants' Demurrer Lawrance A Bohm, Esq TIN V PANDA EXPRESS, INC , et al. Bohm Law Group

1 informed Defendants of each of her pregnancies and her need for time off as a result of those

2 pregnancies. Complaint, TfTf 21, 41, 50. Plaintiff suffered adverse employment actions after

3 informing Defendants ofher pregnancies on two out of three occasions.

4 In January 2005, after Plaintiff notified the general manager of her pregnancy, the

5 general manager criticized Plaintiff and asked why she continued to have more babies.

6 Complaint, Tf 21. That same month. Defendants informed Plaintiff of alleged performance

7 problems, while just two months prior she was promoted to assistant manager and shown to 8 have excellent performance. Complaint, TfTf 19, 23.

9 In November 2008, when Plaintiff notified another general manager of a later

10 pregnancy, that manager (lyamu) also made negative comments about Plaintiff having so many 11 kids, and went as far asto ask her if she received welfare benefits. Complaint, Tf 50. That same

12 month. Plaintiff was instmcted to assist another store by general manager, Justin Gen, and she

13 complied. Tf 51. Despite the fact that she was following instmction of a superior, lyamu (the 14 same manager who made negative comments about Plaintiffs pregnancy) wrote Plaintiff up as 15 a "no-call, no-show" for the day. Id. Similarly, prior to her termination. Plaintiff was approved

16 for time off, which she requested in advance. Complaint, Tfl 53-55. Plaintiff was subsequently

17 terminated, and told by Defendants that her termination was a result of those very absences.

18 Complaint, TfTf 57-58.

19 In addition to having established her protected activities, and subsequent adverse

20 employment actions. Plaintiff has also demonstrated there is a nexus between the two. While

21 Plaintiffs complaint may not specifically allege the word, "nexus" as it relates to Plaintiffs

22 protected activity and subsequent adverse employment actions, courts have held that, "[e]ven 23 where an element is not specifically pled, such an omission is not fatal where the element may

24 be reasonably inferred from the tenor and totality of allegations in the complaint. Williams v.

25 Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135,139. 26 B. All allegations in Plaintiffs Complaint are directed at each individual

27 defendant, and therefore cannot be deemed "uncertain."

28 As a final attack on all four of Plaintiffs actions, Defendants argue their demurrer 10

Plaintiffs Opposition to Defendants' Demurrer Lawrance A. Bohm, Esq TIN V PANDA EXPRESS, INC , et al Bohm Law Group

1 should be sustained on grounds of "uncertainty." Specifically, Defendants assert that because

2 Plaintiff has "lumped" five defendant entities "into one big, amorphous entity she defines as

3 'PANDA EXPRESS' in paragraph 1 ofthe Complaint with no allegations that they acted, for

4 example, some kind of co-venture in regard to all of the allegations made in the

5 Complaint...Plaintiff has rendered it impossible for each of the defendants to properly and

6 adequately respond to the allegations set forth in the Complaint." Demurrer, 12:9-19.

7 While Defendants' assertions focus on Paragraph 1 of Plaintiff s Complaint, Paragraph

'8 9 specifically alleges:

9 At all times relevant, each and every Defendant was an agent and/or

10 employee of each and every other Defendant In doing the things alleged

11 in the causes of action stated herein, each and every Defendant was acting

12 within the course and scope ofthis agency or employment and was acting

13 with the consent, permission and authorization of each remaining

14 Defendant. All actions of each Defendant as alleged herein were ratified

15 and approved by every other Defendant. Complaint, Tf 9.

16 Clearly, the above paragraph puts each Defendant on notice that they each must respond to aU

17 allegations in the complaint, based on an agency theory. It may be tme that Defendants

18 disagree with the allegations of Paragraph 9, but it is well established that factual disputes are

19 not addressed by demurrer. See Committee on Children's Television, Inc v. General Foods

20 Corp, supra, 35 Gal.3d at 213 ("It is not the ordinary fimction of a demurrer to test the tmth of 21 the plaintiffs allegations or the accuracy with which he describes the defendant's conduct."). 22 Plaintiff brought this case against corporate entities, who in good faith, are believed to

23 be the correct corporate defendants based upon information provided in her personnel records.

24 Plaintiff has not yet had an opportunity to conduct discovery in order to establish otherwise.

25 As cited above, the court in Khoury v. Maiy's of California, Inc., supra, pointed out that the

26 reason demurrers are strictly constmed, is because of the fact that any ambiguities can be

27 cleared up in the course of discovery. M a t 616.

28 Additionally, to the extent Defendants' claim for uncertainty is based on their confusion U

PlaintifTs Opposition to Defendants' Demurrer Lawrance A Bohm, Esq. TIN V PANDA EXPRESS, INC., et al Bohm Law Group

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as to "whether Plaintiff ever worked for any of them, and if so, which Defendants" (Demurrer, 12:15-17), that particular information is "presumptively within the knowledge ofthe demurring defendant." Fenton v. Groveland Community Services Dist., supra, 135 Gal.App.3d at 810.

Therefore, Defendants' demurrer to each cause of action for "uncertainty" should be overmled.

C. If Plaintiffs Complaint is determined to be defective, Plaintiff requests leave to

amend in order to cure defects in her Complaint.

Even where a court grants a demurrer, justice demands "great liberality" in granting leave to amend. Scott v. Indian Wells (1972) 6 Gal.3d 541, 549. The Gourt must grant leave to amend if there is a reasonable possibility the plaintiff could cure defects in their complaint by

amending it. Code Civ. Proc, 472a, subd. (c); Schifando v. City of Los Angeles (2003) 31 Gal.4th 1074,1081.

Defendants' demurrer is primarily based on Plaintiffs alleged failure to state sufficient

facts, which Defendants argue leaves nothing but conclusory statements. Should the Gourt

determine that any of causes of action insufficiently plead necessary facts. Plaintiff is confident

that such insufficiency can be cured by amendment.

V. CONCLUSION

Based upon the foregoing. Defendants' Demurrer should be overmled. In the

altemative. Plaintiff requests for leave to amend to add any additional information pertaining to

the sufficiency ofthe allegations asserted.

Dated: June 14,2011 BIANCA N. SMITH, ESQ. LAWRANCE A. BOHM, ESQ.

BOHM LAW GROUP Attomey for Plaintiff SOKPHY TIN

12 PlaintifTs Opposition to Defendants' Demurrer TIN V PANDA EXPRESS, INC., et al.

Lawrance A. Bohm, Esq. Bohm Law Group

1 Proof Of Service

^ CASE: TIN v. PANDA EXPRESS, INC., et al. 3 CASE NO.: 34-2010-00090959

I, the undersigned, declare: 5

I am employed in the County of Sacramento, State of Califomia. I am over 6 the age ofeighteen (18) years and not a party to the within action; my business address is ^ 4600 Northgate Blvd. Suite 210, Sacramento, CA 95834.

8 On June 14, 2011,1 served the within:

9

10 PLAINTIFF'S OPPOSITION TO DEFENDANTS' DEMURRER; DECLARATION OF BIANCA N. SMITH IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANTS' DEMURRER;

11 [Proposed] ORDER OVERRULING DEMURRER 12

By causing the same to be personally delivered to the individual and at the 13 address as set forth below.

^^ XX By placing a true copy thereof enclosed in a sealed envelope with postage J 5 thereon fully prepaid for deposit in the United States Post Office mail box, at

my business address shown above, following Lawrance A. Bohm's ordinary 16 business practices for the collection and processing of mail, of which I am

readily familiar, and addressed as set forth below.

18 By depositing a true copy thereof enclosed in a sealed envelope with delivery fees thereon fully prepaid in a box or other facility regularly maintained by

1^ Federal Express or delivering to an authorized courier or driver authorized by 20 Federal Express to receive documents on the same date that it is placed at

Lawrance A. Bohm for collection, addressed as set forth below.

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Proof of Service Lawrance A Bohm, Esq BOHM LAW GROUP

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By sending a copy by facsimile to the person(s) at the address(s) and facsimile number(s) set forth below.

1

BRANT W. NELSON

Harry I. Johnson, III, Esq. 2 Stanley G. Strinfellow, II, Esq.

ARENT FOX LLP 3 555 West Fifth Street, 48* Floor

Los Angeles, CA 90013

5 I declare under penalty of perjury under the laws of the State of Califomia the foregoing is tme and correct, and that this declaration was executed on June 14, 2011,

6 at Sacramento, Califomia. 7

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Proof of Service Lawrance A Bohm, Esq BOHM LAW GROUP