Preview
IATA
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Jan-17-2019 10:01 am
Case Number: CGC-18-567919
Filing Date: Jan-17-2019 9:59
Filed by: CAROL BALISTRERI
Image: 06649739
OPPOSITION
ADAM CRONIN VS. PACIFIC GAS AND ELECTRIC COMPANY ET AL
001006649739
Instructions:
Please place this sheet on top of the document to be scanned.oe YT DH RFR WY
Nb N NY NY YH NY NY NY bw —_ ee et
eoYranrs 8 NF SERS dI:|AR EERE SBS
© 3
Adam Cronin, In Pro Per F I L E D
101 Hannaford Ct Folsom CA 95630 Franciaco County Superior Court
909-283-3039
Ajcu88@gmail.com JAN 17 2019
% GLERK OF THE COURT
on x ¥
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
Adam Cronin ) Case No.: CGC-18-567919
Plaintiff(s),
OPPOSITION TO DEFENDANT PACIFIC
vs. ) GAS AND ELECTRIC COMPANY’S
DEMURRER_ JO RLAINTIFE’S SECOND
. . AME! AINT;
Pacific Gas and Electric Company and Does 1 to } MEMORANDUM OF POINTS AND
j AUTHORITIES
} DATE: February 04, 2019
Defendant(s). ) TIME: 30 AM.
; JUDGE: Hon. Harold Kahn
} Reservation Number: 01030204-04
) Complaint Filed: July 9, 2018
) Amended Complaint Filed: November 8, 2018
) SAC Filed: December 7, 2018
)
)
-1-
OPPOSITION TO DEMURRERCm rd Aw
© °
MEMORANDUM OF POINTS AND AUTHORITIES
(Green v Palmer [1860] 15 Cal.411,415)
(Rhode v. Bartholomew (1949) 94 Cal.App.2d 272, 279)
(Krug v. Meeham [1952] 109 Cal.App.2d 274, 277)
(Rannard v. Lockheed Aircraft Corp. [1945] 26 Cal.2d 149, 156-7)
(Ange M. v. Superior Court [1995] 37 Cal. App. 4 1217 1227)
(Goodman v. Kennedy [1976] 18 Cal.3d 355, 349)
(Roskind v. Morgan Stanley Dean Witter & Co. (2000) 80 Cal. App. 4 345,349.)
(In Re Angelina P. (1981) 28 Cal. 3d 908, 918)
(Hernandez, supra, 47 Cal.4th at pp. 286-287),
(Maglica v. Maglica (1998) 66 Cal.App.4" 442, 455)
(Roth v. Malson (1998) 67 Cal. App.4" 552, 557)
Page(s)
eer eununuunuua
(Merced County Sheriff's Employees’ Assn. v. County of Merced (1987) 188 Cal. App. 3d 662,
670)
(Davis, supra, 7 Cal.App.4" at 1014)
(Taus v. Loftus 151 P.3d 1185 [Cal. 2007]
(Shulman v. Group W Productions Inc. 18 Cal.4% 200, 236-237)
(Faria v. San Jacinto Unified School District [1996] 50 Cal. App. 4% 1939)
(Pitman v. City of Oakland 197 Cal. App. 3d 1037, 1044 [Cal.Ct.App. 1988])
STATUTES
Civil Code Section 1621 Implied Contract
General Duty Clause under the Occupational Safety and Health Act (OSHA)
Labor Code Section 1102.5
CA Evidence Code Section 620
AB 263
SB 496
SB 666
Family Medical Leave Act (FMLA)
California Family Rights Act (CFRA)
Consumer Reporting Agencies -Act/Fair Credit and Reporting Act (CA
ICRA/FCRA)
CACI No. 305 implied-in-fact
CACI No. 430 Causation: Substantial Factor (“but for”)
-2-
9,10
11,12,15
13,14
13,14
12
12,13
Page(s)
9
6,7,8,9,17
4,5,6,8,9
5,8
6
6
6
3,11,12,15,16
3,16
15
9,10
16
OPPOSITION TO DEMURRERCoe NT KD WH RB Ww KY
nN obo NHN | & em
BRkREBSRERERSESRRETE RSH HE
© o
Plaintiff, Adam Cronin herein submits his Opposition to Defendant Pacific Gas and Electricl
Company’s Demurrer to his Second Amended Complaint. Cronin opposes Defendant Pacific Gas|
and Electric Company’s Demurrer on the grounds that his Complaint does state valid causes off
action, that Pacific Gas and Electric Company cannot demur to causes of action alleged against other
Defendants, and further that Defendant’s demurrer is without merit.
The opposition shall be based on this Opposition, the attached Memorandum of
Points and Authorities, on the complete files and records of this action and on such other oral and/or]
documentary evidence as may be present at the hearing on the Motion.
Dated (VG -/ Y
laintiff Adam Cronin, in Pro Per
I. STATEMENT OF FACTS
The Plaintiff was a “Meter Program Manager” with PG&E’s Metering Services and|
Engineering Department (MS&E). Virtually his entire [nearly] decade long career with PG&E was|
involved with metering (either directly or indirectly), which eventually lead to the Plaintiff running]
numerous Projects and Programs related to electric meter engineering. It was during his three years
with PG&E’s MS&E Engineering department where he obtained a plethora of knowledge which,
arguably, made him an “Expert” when it came to general metering knowledge. In fact, in 2015,
MS&E Engineering Manager Young Nguyen (the Plaintiff's supervisor at the time) nominated the|
Plaintiff to serve as “subject matter expert” (as well as drafting testimony) on California Public}
Utilities Commission (CPUC) General Rate Case (GRC) filing, regarding specific “Metering
Chapter 5” projects/programs PG&E was attempting to fund in the upcoming filing.
After re-establishing FMLA/CFRA in late 2015, the Plaintiff began almost immediately|
experiencing FMLA/CFRA related retaliation, interference, and harassment by direct supervisor,
MS&E Engineering Manager Young Nguyen. Nguyen was reported and investigated by PG&E’s|
Ethics and Compliance department, in which the Plaintiff's allegations were substantiated by PG&E|
Fearing that Nguyen completely tarnished and ruined any “momentum” and future opportunities for
growth within MS&E and PG&E, the Plaintiff filed a legal complaint against PG&E in mid 2016.
-3-
OPPOSITION TO DEMURRERoO ND Hh PB WY
NON RB YN NN NY Be ee ee ee Ee eK
® Rk RFRESORNRRSSRRRE BH LE
© 3
Months later, the Plaintiff began experiencing clear and obvious attempts by MS&E Director
Earle Davis and new supervisor, MS&E Manager Alan Jones, to constructively discharge him. It
was shortly after this, in early 2017, where alleged facts in the Plaintiffs Second Amended
Complaint (SAC), are being brought into light, and are the subject of this Demurrer.
Plaintiff filed and served his Second Amended Complaint. Defendant demurred to the Plaintiff's
4" and 6" Causes of Action in the SAC. Causes of action 1, 2, 3, 4, 5, and 6 are for relief and arel
directed and Defendant, Pacific Gas and Electric Company. The Plaintiff contends that the SAC|
does, in fact, allege sufficient facts to state cause of action, and that the SAC are not uncertain.
II, LEGAL ARGUMENT
THE COURT SHOULD OVERRULE THE DEMURRER TO THE FOURTH AND sxral
CAUSES OF ACTION BECAUSE THEY ALLEGE SUFFICIENT FACTS TO STATE
CAUSES OF ACTION FOR VIOLATION OF LABOR CODE SECTION 1102.5)
(WHISTLEBLOWER PROTECTION), AND INTRUSION INTO PRIVATE AFFAIRS
To defeat a Demurrer, Plaintiff need only state essential ultimate facts
The facts stated in the complaint should be only the ultimate facts essential to plaintiff's claim,
and a plaintiff need not plead evidentiary facts supporting the allegations of ultimate facts so long as
the pleading informs the defendant of the claim’s factual basis. (Green v Palmer [1860] 15|
Cal.411,415). Ultimate facts are logical conclusions deduced from primary evidentiary facts; (Rhodel
v. Bartholomew (1949) 94 Cal.App.2d 272, 279) as opposed to conclusions of law, on one hand, and}
evidence of facts, on the other (Krug v. Meeham [1952] 109 Cal.App.2d 274, 277). All that is|
requird of a plaintiff, as a matter of pleading, is that the complaint set forth the essential facts of the
case with reasonable precision and with sufficient particularly to acquaint the defendant with thel
nature, source, and extent of the cause of action. (Rannard v. Lockheed Aircraft Corp. [1945] 26
Cal.2d 149, 156-7)
A demurrer tests the legal sufficiency of the complaint, not its factual truth (Roskind v. Morgan]
Stanley Dean Witter & Co. (2000) 80 Cal. App. 4 345,349.).
If the Complaint is found to be defective, plaintiff's should be granted leave to amend
Even if a demurrer is sustained, “liberality of permitting amendment is to rule, if fair opportunity]
to correct any defect has not been given (Ange M. v. Superior Court [1995] 37 Cal. App. 4" 1217
1227). It is an abuse of discretion for a court to deny leave to amend where there is any reasonable|
possibility that a plaintiff can state a good cause of action (Goodman v. Kennedy [1976] 18 Cal.3d|
355, 349).
-4-
OPPOSITION TO DEMURRER,oO YD DH FB WBN
No RN YP Se Be Be Be ee ew ew ek
BNRRRRSRARBRSEERRAEESBHE oS
2. Numerous facts in Plaintiffs SAC, which are either explicitly stated or heavily implied, which the
© °
1. The Defendant’s Demurrer to the Fourth Cause of Action contends that “..demurrer should be
sustained.. because Plaintiff's claim that PG&E believed.. Plaintiff ‘may disclose’ information|
tegarding the ‘Hot Socket’ issue to a government agency is supported only by Plaintiff's
conclusory allegation ..SAC pleads no facts to support Plaintiff's conclusory allegation”
Defendant made no attempt to understand or even indicate their actual contention during the
Meet and Confer meeting, other than making a blanket statement of “[SAC] doesn’t allege
sufficient fact.” Sections (10)(a-d) of this document alleges facts which supports conclusivel
presumptions (CA Evidence Code Section 620). These facts are alleged, and are indisputably,
known by 2 of the primary, key decision makers in the Plaintiffs termination, (MS&E Director
Earle Davis, and MS&E Manager, Alan Jones). Furthermore, these two primary decision makers|
were also either directly/indirectly responsible and/or were aware of the Hot Socket issue, and|
discovered that the Plaintiff uncovered a failure in MS&E’s work product, related to safety, and|
that such source (Hot Socket) has been known (by MS&E leadership) to cause fires, which
contributed to motives by PG&E to terminate the Plaintiff.
3. Other demurrer contentions made by the defendant such as “Plaintiff did not file a claim.. or|
disclose Hot Socket”, “Plaintiff did not make an internal disclosure. about.. Hot Socket” are not
valid legal arguments because (as amended in 2014), Labor Section 1102.5 no longer places these
requirements on whistleblowers (or perceived/potential whistleblowers).
Defendant’s Demurrer to Plaintiff's Fourth Cause of Action (Statements and Opposition)
[REASON ONE DECLARED IN DEFENDANT’S DEMURRER]
7. The defendant declares in their demurrer “... SAC does not allege that Plaintiff engaged in al
protected activity...” This reason is unsubstantiated for the following reasons
a. This is unsubstantiated because on page 25 of the Plaintiff's SAC, paragraph 88 states “... [thel
Plaintiff] had been actively looking for possible violations of the “Hot Socket” phenomenon..
and [PG&E] precluded it from their inspection procedures”,
i. In this case, the Plaintiff's engagement in the protected activity is “refusing to participate
in an activity which would result in noncompliance/violation(s) of regulation(s)” (Stated
on the SAC, Page 14, Paragraph 44[c])
1. At Plaintiff's termination, PG&E states that Plaintiff “removed company metering”, and
this is a violation of their Code of Conduct.
-5-
OPPOSITION TO DEMURRER.Cc o
a. If the Plaintiff didn’t remove the meter (for inspection of Hot Socket), this would
result in a violation of OSHA’s “General Duty Clause” (and potentially other
regulations, such as the US Consumer Products Safety Commission [CPSC]
compliance requirements), because it is a safety and fire hazard.
b. This allegation implies that the Plaintiff discovered that MS&E’s leadership precluded
inspection procedures for a dangerous condition (Hot Socket) under specific circumstances,
This lead to a potential hazard exposure of the Plaintiff, the customer, and the PG&E
employee (“Troubleman”) who investigated the customer complaint.
i. The people who are ultimately responsible for implementing the aforementioned
“precluded procedures” (checking for Hot Socket) are MS&E Director Earle Davis, and
Meter Engineering Manager, Young Nguyen.
c. It is undisputable fact that “Hot Socket” can cause voltage problems.
d. It is undisputable fact that “Hot Socket” can lead to a fire.
e. It is undisputed fact that when PG&E responds to a customer complaint of voltage problems.
PG&E’s “Troublemen” do not have it in their inspection procedure to check the back of thel
meter for “Hot Socket” under the circumstances cited in the SAC.
f. It is undisputed fact that PG&E’s records show customer complaints of voltage problems at|
2137 Rockville Road, Suisun City, in August-September of 2015 (during the timeframe of
relevance).
[REASON TWO DECLARED IN DEFENDANT’S DEMURRER]
8. The defendant declares in their demurrer “... Plaintiff does not allege that he actually filed a
complaint or disclosed information regarding allegedly unlawful PG&E actions or practices...
prior to his termination”
a, This declaration by PG&E’s demurrer fails because on January 1, 2014 AB 263, SB 496, andi
SB 666 went into effect which amended California Labor Code 1102.5 which no longer places
the legal requirements (to receive whistleblower protection) of “actually [filing] a complaint or
disclosing.. unlawful actions.”
[REASON THREE DECLARED IN DEFENDANT’S DEMURRER]
9. The defendant declares in their demurrer “... Plaintiff does not allege that he made a protected|
internal disclosure about the Hot Socket issue prior to his termination”
a. Again, this declaration by PG&E’s demurrer fails because on January 1, 2014 AB 263, SB
496, and SB 666 went into effect which amended California Labor Code 1102.5 which no|
-6-
OPPOSITION TO DEMURRERCoO NY DH WH RB WN
Ny NON NN ee a ea ek
BNRRRBREBRSRE BARE ESE IES
© °
longer places the legal requirements (to receive whistleblower protection) of “actually [filing] a]
complaint or disclosing.. unlawful actions.”
[REASON FOUR DECLARED IN DEFENDANT’S DEMURRER]
10. The defendant declares in their demurrer “... Plaintiff's conclusory allegation that PG&E
‘believed’ that Plaintiff might disclose information about the Hot Socket issue to government
enforcement agencies is unsupported by any alleged fact. Conclusory allegations do not sufficel
to withstand demurrer.” This declaration is unsubstantiated because the conclusory}
presumption of “belief/believed” are supported by the following facts alleged in the Plaintiffs
complaint
a. On page 26 of the Plaintiff's SAC, paragraph 92 the Plaintiff alleges the fact that “the company}
failed to check [for Hot Socket] after 2 phone calls/reports made to the company”.
i, This implies the company had opportunities to remedy the problem before the Plaintiff
refused to comply with the PG&E Code of Conduct section that states “Don’t.. remove.
company meter...”, which if Hot Socket was the cause of the hazard present, and PG&E’s|
(MS&E department) knew of and failed to implement a “feasible and useful method to
correct the hazard”, this would violate the OSHA “General Duty Clause”, which is also
alleged fact on the Plaintiff's SAC on pages 25-26, paragraphs 88 — 93.
1. This constitutes a failure in MS&E’s work product, since MS&E was responsible for
implementing the proper safety procedures related to metering, including Hot Socket
b. On page 14 of the Plaintiff's SAC, paragraph 44(d) the Plaintiff alleges the fact that PG&E’s
Code of Conduct requires that employees “put safety first”.
c. On page 25, paragraph 88 of the Plaintiff's SAC, the Plaintiff alleges the fact that “the
company elected to ignore their own code of conduct, requiring safety to be put first” [in thel
decision to terminate the plaintiff].
d. Though not explicitly stated, the Plaintiff's SAC implies fact, that by inspecting the meter for
Hot Socket (as stated on pages 12-13, paragraphs 41-43), he exposed a failure in MS&E’s
work product, by pointing out that he inspected the meter, after two PG&E “Troublemen’
failed to. -
i. As implied in the Plaintiff's SAC, this failure on the part of the PG&E “Troublemen” is
because MS&E leadership never implemented a procedure for them to inspect the meters (for
Hot Socket) under the conditions which were occurring (which is the failure in MS&E work]
product).
-7-
OPPOSITION TO DEMURRERCo em YD WH PB wBw NY
N — mt
Cc oO
e. Sections(10)(a-d) of this document alleges facts which supports conclusive presumptions (CA]
Evidence Code Section 620). These facts are alleged, and are indisputably known by at least 2
of the primary, key decision makers in the Plaintiffs termination, (MS&E Director Earle Davis,
and MS&E Manager, Alan Jones). Furthermore, these two primary decision makers were also}
either directly/indirectly responsible and/or were aware of the Hot Socket issue, as well as the|
identified (by the Plaintiff) failure in MS&E’s work product. Furthermore,
f. With regard to PG&E’s “state of mind”, these 2 key MS&E decision makers (Earle and Alan
were indisputably aware that
i, OSHA requires employers utilize “a feasible and useful method to correct [a known] hazard”
AND
ii. PG&E requires employees to put safety first, AND
iii. The MS&E leaders became aware that the Plaintiff identified MS&E leaders’ failure in
implementing safety procedures, AND
iv. MS&E leaders became aware that the Plaintiff notified PG&E of the hazard, in an attempt to
have PG&E cure the problem (via customer complaints), and failed to, AND,
v. MS&E leaders became aware that, upon failing to cure the hazard, the Plaintiff took it upon
himself to inspect for/cure the hazard
8. By MS&E leaders indisputably knowing they must “put safety first”, failing to prioritize safety
themselves (as pointed out/alleged by the Plaintiff), then terminating the Plaintiff for taking]
action which “puts safety first” conveys complete hypocrisy, a contradiction of PG&E’s
sentiment, and a disregard for the rights and safety of others.
h. Hence, upon “becoming aware” of these facts, then immediately suspending, and then
terminating the Plaintiff within 2 weeks, it can be reasonably concluded that, MS&E leaders
elected to do so preemptively, because they “believed” that the Plaintiff may disclose these
serious safety violations to a governing agency
CONCLUSION (IN OPPOSITION OF 1102.5 DEMURRER)
11. It is unreasonable for the Defendant to suggest that PG&E’s Code of Conduct Tequirement off
“Don’t.. remove.. a company meter.. without authorization” is unimpeachable under any an
all circumstances (even if it conflicts with “safety first” sentiment).
12. It is unreasonable for the Defendant to suggest that PG&E didn’t prioritize a procedural
Tequirement over a safety requirement, in the decision to terminate the Plaintiff.
-8-
OPPOSITION TO DEMURRERCem YN DH F Bw HY
Ny Yb Ne Be Ny NN DY Be Be ew ew ee ew OW
® Sk REBRUERSGSERRRRESHOS
© o
13. PG&E’s own records support the Plaintiff's statements that at the address and timeframe in|
which the Plaintiff explained the hazard(s) were occurring, were in fact, occurring (as the
_ Defendant’s demurrer suggests otherwise, which is factually wrong).
14. PG&E claims to be a company which places safety first, undisputedly admits they terminated the
Plaintiff for “removing PG&E meters without authorization”, yet has denies that the termination}
reasons given were retaliatory in nature. If PG&E’s statements and actions contradict themselves|
as the Plaintiff's SAC allegations imply, in connection with the aforementioned alleged facts}
support a conclusory presumption, “[belief] that the existence of a fact is more probable than its}
nonexistence” ([The preponderance-of-the-evidence standard] In Re Angelina P. (1981) 28 Cal.
3d 908, 918) has been established.
15. With regards to PG&E’s actions and written words about “putting safety first” [sentiment], and|
how that would lead a reasonable person to believe that, when PG&E has failed to cure a knownl
safety condition, they’ve implied authorization/consent (“implied-in-fact” contract) for the
Plaintiff to do so, (as stated in the Plaintiff's RJN in Opposition of the Defendant’s Demurrer)
a. “Contract formation is governed by objective manifestations, not subjective intent of any|
individual involved. The test is ‘what the outward manifestations of consent would lead al
reasonable person to believe.”*(Roth v. Malson (1998) 67 Cal.App.4® 552, 557)(Civil Codd
Section 1621 Implied Contract)
b. “The manifestation of assent to a contractual provision may be ‘wholly or partly written or
spoken words or by other acts or by failure to act.” (Merced County Sheriff's Employees’
Assn. v. County of Merced (1987) 188 Cal. App. 3d 662, 670)
c. “.,.An implied-in-fact contract entails an actual contract, but one manifested in conduct rather
than expressed in words” (Maglica v. Maglica (1998) 66 Cal.App.4"" 442, 455)(Civil Codd
Section 1621 Implied Contract)
16. Regarding the allegations concerning the Labor Section 1102.5 Tetaliation, the Plaintiff asserts
that he was at his girlfriend’s (at the time) house, who was experiencing voltage problems|
PG&E was called out twice for this, could not locate the issue, did not check the meter socket
(for Hot Socket) (in violation of OSHA), and no other contractors (at the time) could locate the
cause. He then took it upon himself to check for Hot Socket because he was concerned about the
safety hazard it posed, AND because PG&E’s Code of Conduct implies consent in this situation)
because they claim to always “put safety first”. Under these circumstances, “manifestations off
consent would lead a reasonable person to believe” that “consent” was implied by PG&H
-9-
OPPOSITION TO DEMURRER© o
(Merced County Sheriff's Employees’ Assn. v. County of Merced (1987) 188 Cal. App. 3d 662,
670).
a. Retaliation occurred because this was threatening to MS&E leadership, because once MS&E|
leadership learned of these facts, they realized it pointed out a major MS&E work-product
failure and safety violation, leading to a conclusory presumption that the MS&E leadership
was in fear of (“believed”) that the Plaintiff may disclose this information to a governing]
agency.
b. It would be unreasonable for the Defendant to suggest that
i. PG&E didn’t prioritize policy/procedure over safety in the determination to terminate the
Plaintiff
ii. The employer-employee relationship did not create an “implied in-fact” duty for the
Plaintiff to “put safety first” by inspecting the meter under the circumstances alleged
iii, The two key decision makers in the Plaintiff's termination, (MS&E Director Earle Davis &
MS&E Manager Alan Jones), weren’t aware that 1) PG&E’s records indicated electrical}
hazards were occurring 2) PG&E’s Code of Conduct required the Plaintiff to prioritize
“Safety” over “Procedure” and 3) MS&E Director Earle Davis was ultimately responsible
for ensuring proper inspection procedures (for Hot Socket) were in place (for PG&H
“Troublemen” to follow), and that the Plaintiff potentially exposed a failure in MS&E’s|
work product, by pointing out that he inspected the meter, after two PG&E “Troublemen”
failed to.
17. Appropriately summarized: by MS&E leaders indisputably knowing they must “put safety first”,
failing to prioritize safety themselves, and then terminating the Plaintiff for taking action when al
serious safety hazard was present, where authorization is reasonably implied, conveys complete
hypocrisy, a contradiction of sentiment, and a disregard for the rights and safety of others.
Defendant’s Demurrer to Plaintiff’s Sixth Cause of Action (Statements and Opposition)
[REASON ONE DECLARED IN DEFENDANT’S DEMURRER]
18. The defendant’s demurer declares “There is no reasonable expectation of privacy with respect to}
words spoken in a public place (such as a public court hearing)”.
19. The Plaintiff's “reasonable expectation of privacy”, as alleged, relies on much more than “words
spoken in a public place” as the Defendant is implying by this statement.
20. Pages 33 — 35, paragraphs 125 — 132 describe the numerous reasons which the Plaintiff relied on]
to establish a “reasonable expectation of privacy”:
-10-
OPPOSITION TO DEMURRER.Co eo IN AD
10
ll
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Cc 9
a. As the court states in (Hernandez, supra, 47 Cal.4th at pp. 286-287), “The identity of the
intruder” should be taken into consideration when determining a “reasonable expectation of
privacy”
i. As plead in the complaint, it is a reasonable expectation that the Plaintiff's employer would
have no right to extract very personal information about the employee’s personal affairs|
(SAC, page 2, paragraph 7).
b. As the court states in (Hernandez, supra, 47 Cal.4th at pp. 286-287), “The extent to whic
other persons [the defendant] had access to [private information]” should be taken into
consideration when determining a “reasonable expectation of privacy”. The extent to which|
PG&E had access:
i. PG&E had no access or authorization (from the Plaintiff) to extract this information|
whatsoever; nor did they attempt to even indicate they had such interest (SAC, page 33,
paragraph 126).
ii, The private information which was obtained by PG&E was held by a person who the
Plaintiff had a personal relationship with, was not available to PG&E without a secretive,
calculated, improper, and offensive attempt to intrude upon this information, this
information would not be available by the Defendant (SAC, page 33, paragraph 126, 127).
c. As the court states in (Hernandez, supra, 47 Cal.4th at pp. 286-287), “The means by which the
intrusion occurred” should be taken into consideration when determining a “reasonable|
expectation of privacy” the means consisted of:
i. As plead in the Plaintiff's SAC, PG&E only discovered information of the Plaintiff's arrest
due to discovery powers granted by the court, in the legal proceeding brought by the Plaintiff
against PG&E in 2016, for FMLA related violations (SAC, page 11, paragraph 38).
1. Regarding plaintiffs and lawsuits, Californians have an “inalienable tight of privacy”
provided by Article 1, section 1 of the California Constitution (Britt v. Superior Court
(1978) 20 Cal. 3d 844, 855-856). This constitutional right has been held to operate even iff
a statutory privilege does not protect the matter in question (Davis v. Superior Court
(1992) 7 Cal.App.4"*1008, 1014). “Although there may be an implicit partial waiver, the
scope of such waiver must be narrowly, rather than expansively construed... [thel
impartial waiver] encompasses only discovery directly relevant to the plaintif
claim and essential to the fair resolution of the lawsuit.” (avis, supra, 7 Cal. App.4"4
at 1014).
-l-
OPPOSITION TO DEMURRERCem DDH RB YW NY
N oN bw oN ON yy aa a ea a ek
BNRRRSRRBRSERRGREEESE IS
ii, PG&E’s legal team utilized discovery powers to conduct a background check investigation
of the Plaintiff, which uncovered “pending” criminal charges against the Plaintiff. PG&E’s|
iii.
iv. (Faria v. San Jacinto Unified School District [1996] 50 Cal. App. 4 1939) the court states
“Because [Labor code Section 432.7] refers to decisions to promote, train, or terminate as
legal team then discovered that these “pending” criminal charges were misdemeanor
allegations of vandalism and obstructing a utility (charges which were later dismissed),
PG&E then handed off this information to PG&E Corporate Security for further discovery}
(investigation) (SAC, page 11-12, paragraph 38).
It would be unreasonable for PG&E to claim that the investigation conducted by Corporate
Security officer, Kevin Griswold, would’ve been discovery that was “reasonably calculated”
to lead to admissible evidence related to the Plaintiff's FMLA retaliation claim.
well as those to hire, the section clearly governs an employer’s decisions involving both!
existing employees and applicants for employment
Cc 3
1. Based on these alleged facts, it is reasonable to presumptuously conclude that PG&E’s|
legal team felt that they had the right to “discover” further information about this matter,
even though it had nothing to do with “directly relevant [information] to the plaintiff's}
[legal] claim” (Davis, supra, 7 Cal.App.4" at 1014).
1, The background check conducted by the Defendant in the 2016 legal case brought by the
Plaintiff against PG&E was not done in compliance with the California Investigative|
Consumer Reporting Agencies Act/Fair Credit and Reporting Act (CA ICRA/FCRA)
requirements, which includes
a. Written authorization (from the employee, prior to requesting the report)
b. A notice of adverse action (before taking any adverse action)
1. In (Pitman v. City of Oakland 197 Cal. App. 3d 1037, 1044 [Cal.Ct.App. 1988]), the
court states “While the last sentence of the statute provides that an employer may ask anl
employee about an arrest for which he or she’s is awaiting trial, the statute cannot be read|
as permitting the employer to utilize the information of mere arrest for disciplinary
purposes. To hold -otherwise would violate the fundamental presumption of
suspect’s innocence prior to the contrary being provided” The court concludes that
this subdivision (a) does nothing more than permit an employer inquiry [to th
employee]. Similarly, as implied by section 432.7(a), this subdivision permits th
employer to ask an employee about an arrest, and not from any other source, as state
in section 432.7 (SAC, page 23, paragraph 77-78).
-12-
OPPOSITION TO DEMURRERoO QI DH PB Bw NY
N Nv NNN RDB ee ea Se ee
BNRRRRPEBRNRBRESRDAZREEBSH AS
© o
2. As the Plaintiff states in the SAC, before inquiring about the arrest to the Plaintiff
himself, the Defendant proceeded to inquire about the Plaintiff's arrest to other sources|
such as the court, court documents, police reports, the Plaintiff's [former] girlfriend, and!
then finally, the Plaintiff (as alleged in the SAC pages 33-34, paragraphs 128-130)
v. Furthermore, even after the words were spoken (and heard) in open court by Griswold, the
Plaintiff still held a reasonable expectation of privacy because
1. In Pitman vs. City of Oakland, the California Supreme Court states “.. we hold that where|
a plaintiff seeks to state a privacy cause of action for damages based upon... utilization
of arrest data, an essential element of the cause of action, to be pleaded and proved, is|
that the arrest did not result in conviction”
d. Therefore, it is inferred that when an arrest does not result in conviction, actions taken by,
employers which result in (wrongfully) offensive, adverse, and intrusive misconduct can result
in liability for the Defendant under the intrusion-into-private-affairs tort.
[REASON TWO DECLARED IN DEFENDANT’S DEMURRER]
21. The defendant’s demurer declares “individuals have no protected privacy interest in what a}
third-party says about them unless the defendant uses misrepresentation or force to coerce the
third-party to make statements about the plaintiff”
a. The defendant’s demurrer which cites “...SAC does not allege.. PG&E corporate security broke
into [Rassel’s] home..., misrepresented..., hypnotized..., threatened.. or coerced [Rassel]” is
examples the Defendant derives from (Taus v. Loftus 151 P.3d 1185 [Cal. 2007]) which the
California Supreme Court clearly states before making such suggestions “to put forth a few
extreme examples”, then goes on to give the aforementioned “extreme examples” which the
Defendant is (wrongfully) attempting to suggest is such a standard to constitute an “intrusion”.
i. Instead, in the case (Taus v. Loftus 151 P.3d 1185 [Cal. 2007]}) the California Supreme Court
establishes a much lower threshold to constitute actionable conduct for an “intrusion intol
personal affairs”. The court goes on to acknowledge that “simple posing questions about a
plaintiff” [to a third party] does not subject the defendant to liability (Shulman v. Group WI
Productions Inc. 18 Cal.4" 200, 236-237). However, as established in Taus v. Loftus, some
sort of “..misrepresentation..”, referred to as “intentionally engaging in.. utilizing improper
and unanticipated means, particularly when such information would not have been disclosed|
by the [relative or friend] absent [the] use of such means.. could be found highly offensive
for purposes of the intrusion-into-private-matters tort and liability could be imposed...”(Taus
v. Loftus 151 P.3d 1185 [Cal. 2007] emphasis added).
-13-
OPPOSITION TO DEMURRER.Coe YN DH RF WN
Yb N Ye YP YN N NN Be Be Be ee ee oe ee
on DH FB YW NH KF SO we KAA A RH HBS
Cc o
ii. The defendant in Taus v. Loftus did not engage in “extremes”, of either threatening,
hypnotizing the third party (as the Defendant is suggesting in their demurrer), nor the other
extreme of “simple posing of questions” (Shulman v. Group W Productions Inc. 18 Cal.4"y
200, 236-237). Instead, the Defendant in Taus vs. Loftus utilized an “unorthodox.
improper, and unanticipated” method of extracting information from the third-party (even
though “misrepresentation” to the third party was not exceedingly coercive or illegal). The
California Supreme Courtdoes go on to find that an “improper and unanticipated [unforeseen]
means” is sufficient to constitute an intrusion into private matters tort.
b. Additionally, in the Taus v. Loftus case, the California Supreme court goes on to state “.. the
intrusion-into-private-matters tort is specifically intended to provide a remedy to the person who}
has sustained an invasion of his or her privacy by virtue of the misconduct [of thd
Defendant]”.
c. When the “improper and unanticipated [or ‘unforeseen’] means” was perpetrated by the
Defendant in order to access “information [which] would not have been disclosed by the friend
or relative absent [the defendant’s] use of such means”, does subject the defendant to liability,
when the “improper. unanticipated” standard is applied.
d. Most importantly, in Taus v. Loftus, the California Supreme court states (referring to
“improper/unanticipated/unforeseen” misconduct by the Defendant),
“If Loftus engaged in such behavior, we cannot say, as a matter of law, that such questionable and|
unorthodox action constitutes conduct that plaintiff reasonably should have foreseen or anticipated.
Instead, we believe a jury could find that plaintiff reasonably expected that an investigator would!
not seek.. such personal information [using improper/unanticipated/unforeseen misconduct]”
i In other words, it is mot the third-party (Rassel, in this case) who the “improper,
unanticipated/[unforsceen]” misconduct test must be applied to, but instead, this misconductl
test must be applied to the Plaintiff [should have/could have foreseen]
ii, In this case, as implied in the Plaintiff's SAC, the conduct of Griswold was|
unanticipated/unforeseen because of the following:
1. PG&E gave no indication to the Plaintiff that they were investigating the Plaintiff for thd
arrest, prior to taking action (SAC, page 11, paragraph 38).
2. PG&E gave no indication that they knew of the Plaintiff's arrest, prior to taking action|
(SAC, pages 11-12, paragraphs 38-39).
3. PG&E gave no indication that they would be sitting in the Plaintiff's arraignment
hearing, prior to taking action (SAC, page 12, paragraph 39).
-14-
OPPOSITION TO DEMURRERCm YN KD WH FF BN
NON N NY N N NY DY Be Be Be ewe oe oe ee ee
BRRRREBRRBRSRSBWRAEESH ES
iii.
Cc 2
4. It is not a usual part of PG&E business practices for Corporate Security Investigators to
secretly “sit in” and listen to arraignment hearings of employees who’ve been arrested]
(SAC, page 32-33, paragraph 124).
5. It is not a usual part of PG&E business practices for Corporate Security Investigators to
secretly establish contact with [former] girlfriends of employees to ask for and obtain
very personal, private details about the employee, without the employee’s knowledge on
consent (SAC, page 33, paragraph 126).
6. The entire investigation conducted by Griswold was predicated by PG&E’s legal
discovery, which had nothing to do with discovery “directly relevant to the Plaintiffs
claim” [of FMLA retaliation] as established by (Davis, supra, 7 Cal.App.4" at 1014),
making the entire investigation “unanticipated” by the Plaintiff (SAC, page 32.
paragraph 122).
7. The Plaintiff had no reason to believe that PG&E knew of or planned to conduct any of
the aforementioned facts.
8. The Plaintiff maintained innocence, plead innocence, and was later exonerated of thel
allegations.
In this case, as alleged facts imply in the Plaintiff's SAC, the conduct of Griswold was
improper because of the following:
1. All of the court documents regarding the case and individuals involved had their
personal information redacted, “the victim’s” (aka the accuser, Rassel) name was not
spoken or discussed in court. By these facts, the court’s intent was clearly to maintain]
privacy/confidentiality (SAC, page 12, paragraph 39).
2. An “arraignment” hearing is only a formal hearing of which to inform of what
allegations are being made; NOT a trial or conviction (which is how Griswold’s actions}
imply he treated it) (SAC, page 18, paragraph 62).
3. At the Plaintiff's arraignment hearing, Griswold (unbeknownst to the plaintiff) listened]
to and wrote down the address as the judicial officer stated it out loud (which was
redacted in court documents) (SAC, page 12, paragraph 39).
4. Griswold then took that address and improperly cross-referenced it using PG&E utility,
records in order to identify and establish contact with the Plaintiffs [former] girlfriend,
Ruth Rassel (also an unforeseeable action, Griswold nor anyone at PG&E gave any|
notice or mention to the Plaintiff about Griswold’s actions or intentions whatsoever
(SAC, page 33, paragraph 127).
-15-
OPPOSITION TO DEMURRERCom IN DH Fw
NX N MY NY NN Nee we ewe ee Re es eB
BRRERREBRNRRSREAWREARTSEHSAS
III. CONCLUSION
22. As plead in the Plaintiff's SAC, PG&E MS&E Manager Young Nguyen, in an email to the
Plaintiff in approximately March of 2016 confirmed his statement [referring to the PlaintfPs
b. From July until approximately November of 2016, the Plaintiff felt like the working|
Cc 3
5. Again, the entire investigation by Griswold was predicated by PG&E’s legal discovery.
which had nothing to do with discovery “directly relevant to the Plaintiffs claim” [of
FMLA retaliation] as established by (Davis, supra, 7 Cal.App.4" at 1014), making the
entire investigation “improper” (SAC, page 32-33, paragraph 124).
iv. Additionally, further “misconduct” has been perpetrated by the Defendant as alleged in the
Plaintiff's SAC, page 32, paragraph 123, Causation: Substantial Factor (“but for” [CACI
No. 430.]) “but for” the defendant’s conduct (FMLA retaliation) which gave rise to thel
FMLA retaliation complaint filed by the Plaintiff against the Defendant in May of 2016,
the legal complaint never would’ve been filed against PG&E, PG&E’s legal team never|
would’ve discovered the arrest, Griswold’s intrusive investigation never would’ve take:
place, the third-party never would have disclosed such personal information, the Plaintiff's
arrest would’ ve been dismissed (as plead), and no wrongdoing would’ve been perpetrated,
related to these allegations.
FMLA use] “if your attendance doesn’t improve, you could end up terminated”
a. This email was a direct, written threat to the Plaintiff for utilizing protected FMLA/CFRA|
use. Approximately 45-60 days later, the Plaintiff filed and served PG&E with the legal claim|
with allegations of FMLA law-related violations. Determined on terminating the Plaintiff after]
a failed mediation meeting between the Plaintiff and Defendant in October of 2016, PG&E’s
legal team embarked on a highly aggressive, improper legal discovery campaign which]
included “fishing” for reasons, anything they could find, to terminate the Plaintiff.
relationship between himself and his new supervisor, Alan Jones was improving. However,
within weeks of the failed mediation meeting in October of 2016, between PG&E an
Plaintiff, the Plaintiff noticed a change in demeanor in both Alan Jones and Earle Davi
(MS&E leadership). Then, suddenly, inexplicably, and without any notice or warnin,
whatsoever, in February of 2017, Jones provided the Plaintiff with his first “poor” annual
work performance review in almost a decade with the company, and imposed a “coaching}
plan” (discipline).
c. It became clear to the Plaintiff that PG&E was attempting to constructively discharge the
Plaintiff. Upon advice from counsel, the Plaintiff withdrew his legal complaint in order to|
-16-
OPPOSITION TO DEMURRERCom YN KD HW eh ww
10
. However, before the DFEH could Process the Plaintiff's request to mediate the situation,
. Then, at the guidance, direction, and authorization of PG&E’s Legal team, in a systematically,
. This means that PG&E’s Human Resource team, Legal team, Corporate Security and
23. For all of the above reasons, the Defendants’ demurrer should be overruled in its entirety. In the|
unlikely event the demurrer is sustained, Plaintiff requests leave to amend.
oO a
involve the Department of Fair Employment and Housing (since the Plaintiff was still
employed), hoping the DFEH could mediate a reasonable solution between the Plaintiff and|
Defendant’s MS&E Management.
PG&E Legal’s discovery “fishing” expedition lead to what would become Griswold’
investigation, and the Plaintiff's subsequent termination.
coordinated fashion, PG&E Corporate Security Officer Kevin Griswold carried out al
prejudicial, covert, intrusive, and highly offensive investigation of the Plaintiff, which lead tol
MS&E leadership discovering that Plaintiff had known of, and exposed a failure in MS&E’s|
work product, by exposing employees and customers to potentially serious hazards without!
addressing them (Hot Socket). In fear of being exposed, and with authorization & consent
from both the PG&E Legal team, as well as PG&E Human Resources, MS&E leadership]
elected to terminate the Plaintiff on the basis of the Plaintiff's admission that he inspected al
meter (for safety reasons) without (express/written) authorization from the company.
i. (Despite the fact that Hot Sockets are known by MS&E leadership to potentially cause
fires)
MS&E leadership all knew of, yet still authorized/recommended/executed termination of the
Plaintiff, in complete defiance of privacy laws, labor laws, OSHA (and potentially other)
regulations, PG&E’s “putting safety first” policy, and the personal rights and safety of others.
-17-
OPPOSITION TO DEMURRER
Preview
IATA SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Jan-17-2019 10:01 am Case Number: CGC-18-567919 Filing Date: Jan-17-2019 9:59 Filed by: CAROL BALISTRERI Image: 06649739 OPPOSITION ADAM CRONIN VS. PACIFIC GAS AND ELECTRIC COMPANY ET AL 001006649739 Instructions: Please place this sheet on top of the document to be scanned.oe YT DH RFR WY Nb N NY NY YH NY NY NY bw —_ ee et eoYranrs 8 NF SERS dI:|AR EERE SBS © 3 Adam Cronin, In Pro Per F I L E D 101 Hannaford Ct Folsom CA 95630 Franciaco County Superior Court 909-283-3039 Ajcu88@gmail.com JAN 17 2019 % GLERK OF THE COURT on x ¥ Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO Adam Cronin ) Case No.: CGC-18-567919 Plaintiff(s), OPPOSITION TO DEFENDANT PACIFIC vs. ) GAS AND ELECTRIC COMPANY’S DEMURRER_ JO RLAINTIFE’S SECOND . . AME! AINT; Pacific Gas and Electric Company and Does 1 to } MEMORANDUM OF POINTS AND j AUTHORITIES } DATE: February 04, 2019 Defendant(s). ) TIME: 30 AM. ; JUDGE: Hon. Harold Kahn } Reservation Number: 01030204-04 ) Complaint Filed: July 9, 2018 ) Amended Complaint Filed: November 8, 2018 ) SAC Filed: December 7, 2018 ) ) -1- OPPOSITION TO DEMURRERCm rd Aw © ° MEMORANDUM OF POINTS AND AUTHORITIES (Green v Palmer [1860] 15 Cal.411,415) (Rhode v. Bartholomew (1949) 94 Cal.App.2d 272, 279) (Krug v. Meeham [1952] 109 Cal.App.2d 274, 277) (Rannard v. Lockheed Aircraft Corp. [1945] 26 Cal.2d 149, 156-7) (Ange M. v. Superior Court [1995] 37 Cal. App. 4 1217 1227) (Goodman v. Kennedy [1976] 18 Cal.3d 355, 349) (Roskind v. Morgan Stanley Dean Witter & Co. (2000) 80 Cal. App. 4 345,349.) (In Re Angelina P. (1981) 28 Cal. 3d 908, 918) (Hernandez, supra, 47 Cal.4th at pp. 286-287), (Maglica v. Maglica (1998) 66 Cal.App.4" 442, 455) (Roth v. Malson (1998) 67 Cal. App.4" 552, 557) Page(s) eer eununuunuua (Merced County Sheriff's Employees’ Assn. v. County of Merced (1987) 188 Cal. App. 3d 662, 670) (Davis, supra, 7 Cal.App.4" at 1014) (Taus v. Loftus 151 P.3d 1185 [Cal. 2007] (Shulman v. Group W Productions Inc. 18 Cal.4% 200, 236-237) (Faria v. San Jacinto Unified School District [1996] 50 Cal. App. 4% 1939) (Pitman v. City of Oakland 197 Cal. App. 3d 1037, 1044 [Cal.Ct.App. 1988]) STATUTES Civil Code Section 1621 Implied Contract General Duty Clause under the Occupational Safety and Health Act (OSHA) Labor Code Section 1102.5 CA Evidence Code Section 620 AB 263 SB 496 SB 666 Family Medical Leave Act (FMLA) California Family Rights Act (CFRA) Consumer Reporting Agencies -Act/Fair Credit and Reporting Act (CA ICRA/FCRA) CACI No. 305 implied-in-fact CACI No. 430 Causation: Substantial Factor (“but for”) -2- 9,10 11,12,15 13,14 13,14 12 12,13 Page(s) 9 6,7,8,9,17 4,5,6,8,9 5,8 6 6 6 3,11,12,15,16 3,16 15 9,10 16 OPPOSITION TO DEMURRERCoe NT KD WH RB Ww KY nN obo NHN | & em BRkREBSRERERSESRRETE RSH HE © o Plaintiff, Adam Cronin herein submits his Opposition to Defendant Pacific Gas and Electricl Company’s Demurrer to his Second Amended Complaint. Cronin opposes Defendant Pacific Gas| and Electric Company’s Demurrer on the grounds that his Complaint does state valid causes off action, that Pacific Gas and Electric Company cannot demur to causes of action alleged against other Defendants, and further that Defendant’s demurrer is without merit. The opposition shall be based on this Opposition, the attached Memorandum of Points and Authorities, on the complete files and records of this action and on such other oral and/or] documentary evidence as may be present at the hearing on the Motion. Dated (VG -/ Y laintiff Adam Cronin, in Pro Per I. STATEMENT OF FACTS The Plaintiff was a “Meter Program Manager” with PG&E’s Metering Services and| Engineering Department (MS&E). Virtually his entire [nearly] decade long career with PG&E was| involved with metering (either directly or indirectly), which eventually lead to the Plaintiff running] numerous Projects and Programs related to electric meter engineering. It was during his three years with PG&E’s MS&E Engineering department where he obtained a plethora of knowledge which, arguably, made him an “Expert” when it came to general metering knowledge. In fact, in 2015, MS&E Engineering Manager Young Nguyen (the Plaintiff's supervisor at the time) nominated the| Plaintiff to serve as “subject matter expert” (as well as drafting testimony) on California Public} Utilities Commission (CPUC) General Rate Case (GRC) filing, regarding specific “Metering Chapter 5” projects/programs PG&E was attempting to fund in the upcoming filing. After re-establishing FMLA/CFRA in late 2015, the Plaintiff began almost immediately| experiencing FMLA/CFRA related retaliation, interference, and harassment by direct supervisor, MS&E Engineering Manager Young Nguyen. Nguyen was reported and investigated by PG&E’s| Ethics and Compliance department, in which the Plaintiff's allegations were substantiated by PG&E| Fearing that Nguyen completely tarnished and ruined any “momentum” and future opportunities for growth within MS&E and PG&E, the Plaintiff filed a legal complaint against PG&E in mid 2016. -3- OPPOSITION TO DEMURRERoO ND Hh PB WY NON RB YN NN NY Be ee ee ee Ee eK ® Rk RFRESORNRRSSRRRE BH LE © 3 Months later, the Plaintiff began experiencing clear and obvious attempts by MS&E Director Earle Davis and new supervisor, MS&E Manager Alan Jones, to constructively discharge him. It was shortly after this, in early 2017, where alleged facts in the Plaintiffs Second Amended Complaint (SAC), are being brought into light, and are the subject of this Demurrer. Plaintiff filed and served his Second Amended Complaint. Defendant demurred to the Plaintiff's 4" and 6" Causes of Action in the SAC. Causes of action 1, 2, 3, 4, 5, and 6 are for relief and arel directed and Defendant, Pacific Gas and Electric Company. The Plaintiff contends that the SAC| does, in fact, allege sufficient facts to state cause of action, and that the SAC are not uncertain. II, LEGAL ARGUMENT THE COURT SHOULD OVERRULE THE DEMURRER TO THE FOURTH AND sxral CAUSES OF ACTION BECAUSE THEY ALLEGE SUFFICIENT FACTS TO STATE CAUSES OF ACTION FOR VIOLATION OF LABOR CODE SECTION 1102.5) (WHISTLEBLOWER PROTECTION), AND INTRUSION INTO PRIVATE AFFAIRS To defeat a Demurrer, Plaintiff need only state essential ultimate facts The facts stated in the complaint should be only the ultimate facts essential to plaintiff's claim, and a plaintiff need not plead evidentiary facts supporting the allegations of ultimate facts so long as the pleading informs the defendant of the claim’s factual basis. (Green v Palmer [1860] 15| Cal.411,415). Ultimate facts are logical conclusions deduced from primary evidentiary facts; (Rhodel v. Bartholomew (1949) 94 Cal.App.2d 272, 279) as opposed to conclusions of law, on one hand, and} evidence of facts, on the other (Krug v. Meeham [1952] 109 Cal.App.2d 274, 277). All that is| requird of a plaintiff, as a matter of pleading, is that the complaint set forth the essential facts of the case with reasonable precision and with sufficient particularly to acquaint the defendant with thel nature, source, and extent of the cause of action. (Rannard v. Lockheed Aircraft Corp. [1945] 26 Cal.2d 149, 156-7) A demurrer tests the legal sufficiency of the complaint, not its factual truth (Roskind v. Morgan] Stanley Dean Witter & Co. (2000) 80 Cal. App. 4 345,349.). If the Complaint is found to be defective, plaintiff's should be granted leave to amend Even if a demurrer is sustained, “liberality of permitting amendment is to rule, if fair opportunity] to correct any defect has not been given (Ange M. v. Superior Court [1995] 37 Cal. App. 4" 1217 1227). It is an abuse of discretion for a court to deny leave to amend where there is any reasonable| possibility that a plaintiff can state a good cause of action (Goodman v. Kennedy [1976] 18 Cal.3d| 355, 349). -4- OPPOSITION TO DEMURRER,oO YD DH FB WBN No RN YP Se Be Be Be ee ew ew ek BNRRRRSRARBRSEERRAEESBHE oS 2. Numerous facts in Plaintiffs SAC, which are either explicitly stated or heavily implied, which the © ° 1. The Defendant’s Demurrer to the Fourth Cause of Action contends that “..demurrer should be sustained.. because Plaintiff's claim that PG&E believed.. Plaintiff ‘may disclose’ information| tegarding the ‘Hot Socket’ issue to a government agency is supported only by Plaintiff's conclusory allegation ..SAC pleads no facts to support Plaintiff's conclusory allegation” Defendant made no attempt to understand or even indicate their actual contention during the Meet and Confer meeting, other than making a blanket statement of “[SAC] doesn’t allege sufficient fact.” Sections (10)(a-d) of this document alleges facts which supports conclusivel presumptions (CA Evidence Code Section 620). These facts are alleged, and are indisputably, known by 2 of the primary, key decision makers in the Plaintiffs termination, (MS&E Director Earle Davis, and MS&E Manager, Alan Jones). Furthermore, these two primary decision makers| were also either directly/indirectly responsible and/or were aware of the Hot Socket issue, and| discovered that the Plaintiff uncovered a failure in MS&E’s work product, related to safety, and| that such source (Hot Socket) has been known (by MS&E leadership) to cause fires, which contributed to motives by PG&E to terminate the Plaintiff. 3. Other demurrer contentions made by the defendant such as “Plaintiff did not file a claim.. or| disclose Hot Socket”, “Plaintiff did not make an internal disclosure. about.. Hot Socket” are not valid legal arguments because (as amended in 2014), Labor Section 1102.5 no longer places these requirements on whistleblowers (or perceived/potential whistleblowers). Defendant’s Demurrer to Plaintiff's Fourth Cause of Action (Statements and Opposition) [REASON ONE DECLARED IN DEFENDANT’S DEMURRER] 7. The defendant declares in their demurrer “... SAC does not allege that Plaintiff engaged in al protected activity...” This reason is unsubstantiated for the following reasons a. This is unsubstantiated because on page 25 of the Plaintiff's SAC, paragraph 88 states “... [thel Plaintiff] had been actively looking for possible violations of the “Hot Socket” phenomenon.. and [PG&E] precluded it from their inspection procedures”, i. In this case, the Plaintiff's engagement in the protected activity is “refusing to participate in an activity which would result in noncompliance/violation(s) of regulation(s)” (Stated on the SAC, Page 14, Paragraph 44[c]) 1. At Plaintiff's termination, PG&E states that Plaintiff “removed company metering”, and this is a violation of their Code of Conduct. -5- OPPOSITION TO DEMURRER.Cc o a. If the Plaintiff didn’t remove the meter (for inspection of Hot Socket), this would result in a violation of OSHA’s “General Duty Clause” (and potentially other regulations, such as the US Consumer Products Safety Commission [CPSC] compliance requirements), because it is a safety and fire hazard. b. This allegation implies that the Plaintiff discovered that MS&E’s leadership precluded inspection procedures for a dangerous condition (Hot Socket) under specific circumstances, This lead to a potential hazard exposure of the Plaintiff, the customer, and the PG&E employee (“Troubleman”) who investigated the customer complaint. i. The people who are ultimately responsible for implementing the aforementioned “precluded procedures” (checking for Hot Socket) are MS&E Director Earle Davis, and Meter Engineering Manager, Young Nguyen. c. It is undisputable fact that “Hot Socket” can cause voltage problems. d. It is undisputable fact that “Hot Socket” can lead to a fire. e. It is undisputed fact that when PG&E responds to a customer complaint of voltage problems. PG&E’s “Troublemen” do not have it in their inspection procedure to check the back of thel meter for “Hot Socket” under the circumstances cited in the SAC. f. It is undisputed fact that PG&E’s records show customer complaints of voltage problems at| 2137 Rockville Road, Suisun City, in August-September of 2015 (during the timeframe of relevance). [REASON TWO DECLARED IN DEFENDANT’S DEMURRER] 8. The defendant declares in their demurrer “... Plaintiff does not allege that he actually filed a complaint or disclosed information regarding allegedly unlawful PG&E actions or practices... prior to his termination” a, This declaration by PG&E’s demurrer fails because on January 1, 2014 AB 263, SB 496, andi SB 666 went into effect which amended California Labor Code 1102.5 which no longer places the legal requirements (to receive whistleblower protection) of “actually [filing] a complaint or disclosing.. unlawful actions.” [REASON THREE DECLARED IN DEFENDANT’S DEMURRER] 9. The defendant declares in their demurrer “... Plaintiff does not allege that he made a protected| internal disclosure about the Hot Socket issue prior to his termination” a. Again, this declaration by PG&E’s demurrer fails because on January 1, 2014 AB 263, SB 496, and SB 666 went into effect which amended California Labor Code 1102.5 which no| -6- OPPOSITION TO DEMURRERCoO NY DH WH RB WN Ny NON NN ee a ea ek BNRRRBREBRSRE BARE ESE IES © ° longer places the legal requirements (to receive whistleblower protection) of “actually [filing] a] complaint or disclosing.. unlawful actions.” [REASON FOUR DECLARED IN DEFENDANT’S DEMURRER] 10. The defendant declares in their demurrer “... Plaintiff's conclusory allegation that PG&E ‘believed’ that Plaintiff might disclose information about the Hot Socket issue to government enforcement agencies is unsupported by any alleged fact. Conclusory allegations do not sufficel to withstand demurrer.” This declaration is unsubstantiated because the conclusory} presumption of “belief/believed” are supported by the following facts alleged in the Plaintiffs complaint a. On page 26 of the Plaintiff's SAC, paragraph 92 the Plaintiff alleges the fact that “the company} failed to check [for Hot Socket] after 2 phone calls/reports made to the company”. i, This implies the company had opportunities to remedy the problem before the Plaintiff refused to comply with the PG&E Code of Conduct section that states “Don’t.. remove. company meter...”, which if Hot Socket was the cause of the hazard present, and PG&E’s| (MS&E department) knew of and failed to implement a “feasible and useful method to correct the hazard”, this would violate the OSHA “General Duty Clause”, which is also alleged fact on the Plaintiff's SAC on pages 25-26, paragraphs 88 — 93. 1. This constitutes a failure in MS&E’s work product, since MS&E was responsible for implementing the proper safety procedures related to metering, including Hot Socket b. On page 14 of the Plaintiff's SAC, paragraph 44(d) the Plaintiff alleges the fact that PG&E’s Code of Conduct requires that employees “put safety first”. c. On page 25, paragraph 88 of the Plaintiff's SAC, the Plaintiff alleges the fact that “the company elected to ignore their own code of conduct, requiring safety to be put first” [in thel decision to terminate the plaintiff]. d. Though not explicitly stated, the Plaintiff's SAC implies fact, that by inspecting the meter for Hot Socket (as stated on pages 12-13, paragraphs 41-43), he exposed a failure in MS&E’s work product, by pointing out that he inspected the meter, after two PG&E “Troublemen’ failed to. - i. As implied in the Plaintiff's SAC, this failure on the part of the PG&E “Troublemen” is because MS&E leadership never implemented a procedure for them to inspect the meters (for Hot Socket) under the conditions which were occurring (which is the failure in MS&E work] product). -7- OPPOSITION TO DEMURRERCo em YD WH PB wBw NY N — mt Cc oO e. Sections(10)(a-d) of this document alleges facts which supports conclusive presumptions (CA] Evidence Code Section 620). These facts are alleged, and are indisputably known by at least 2 of the primary, key decision makers in the Plaintiffs termination, (MS&E Director Earle Davis, and MS&E Manager, Alan Jones). Furthermore, these two primary decision makers were also} either directly/indirectly responsible and/or were aware of the Hot Socket issue, as well as the| identified (by the Plaintiff) failure in MS&E’s work product. Furthermore, f. With regard to PG&E’s “state of mind”, these 2 key MS&E decision makers (Earle and Alan were indisputably aware that i, OSHA requires employers utilize “a feasible and useful method to correct [a known] hazard” AND ii. PG&E requires employees to put safety first, AND iii. The MS&E leaders became aware that the Plaintiff identified MS&E leaders’ failure in implementing safety procedures, AND iv. MS&E leaders became aware that the Plaintiff notified PG&E of the hazard, in an attempt to have PG&E cure the problem (via customer complaints), and failed to, AND, v. MS&E leaders became aware that, upon failing to cure the hazard, the Plaintiff took it upon himself to inspect for/cure the hazard 8. By MS&E leaders indisputably knowing they must “put safety first”, failing to prioritize safety themselves (as pointed out/alleged by the Plaintiff), then terminating the Plaintiff for taking] action which “puts safety first” conveys complete hypocrisy, a contradiction of PG&E’s sentiment, and a disregard for the rights and safety of others. h. Hence, upon “becoming aware” of these facts, then immediately suspending, and then terminating the Plaintiff within 2 weeks, it can be reasonably concluded that, MS&E leaders elected to do so preemptively, because they “believed” that the Plaintiff may disclose these serious safety violations to a governing agency CONCLUSION (IN OPPOSITION OF 1102.5 DEMURRER) 11. It is unreasonable for the Defendant to suggest that PG&E’s Code of Conduct Tequirement off “Don’t.. remove.. a company meter.. without authorization” is unimpeachable under any an all circumstances (even if it conflicts with “safety first” sentiment). 12. It is unreasonable for the Defendant to suggest that PG&E didn’t prioritize a procedural Tequirement over a safety requirement, in the decision to terminate the Plaintiff. -8- OPPOSITION TO DEMURRERCem YN DH F Bw HY Ny Yb Ne Be Ny NN DY Be Be ew ew ee ew OW ® Sk REBRUERSGSERRRRESHOS © o 13. PG&E’s own records support the Plaintiff's statements that at the address and timeframe in| which the Plaintiff explained the hazard(s) were occurring, were in fact, occurring (as the _ Defendant’s demurrer suggests otherwise, which is factually wrong). 14. PG&E claims to be a company which places safety first, undisputedly admits they terminated the Plaintiff for “removing PG&E meters without authorization”, yet has denies that the termination} reasons given were retaliatory in nature. If PG&E’s statements and actions contradict themselves| as the Plaintiff's SAC allegations imply, in connection with the aforementioned alleged facts} support a conclusory presumption, “[belief] that the existence of a fact is more probable than its} nonexistence” ([The preponderance-of-the-evidence standard] In Re Angelina P. (1981) 28 Cal. 3d 908, 918) has been established. 15. With regards to PG&E’s actions and written words about “putting safety first” [sentiment], and| how that would lead a reasonable person to believe that, when PG&E has failed to cure a knownl safety condition, they’ve implied authorization/consent (“implied-in-fact” contract) for the Plaintiff to do so, (as stated in the Plaintiff's RJN in Opposition of the Defendant’s Demurrer) a. “Contract formation is governed by objective manifestations, not subjective intent of any| individual involved. The test is ‘what the outward manifestations of consent would lead al reasonable person to believe.”*(Roth v. Malson (1998) 67 Cal.App.4® 552, 557)(Civil Codd Section 1621 Implied Contract) b. “The manifestation of assent to a contractual provision may be ‘wholly or partly written or spoken words or by other acts or by failure to act.” (Merced County Sheriff's Employees’ Assn. v. County of Merced (1987) 188 Cal. App. 3d 662, 670) c. “.,.An implied-in-fact contract entails an actual contract, but one manifested in conduct rather than expressed in words” (Maglica v. Maglica (1998) 66 Cal.App.4"" 442, 455)(Civil Codd Section 1621 Implied Contract) 16. Regarding the allegations concerning the Labor Section 1102.5 Tetaliation, the Plaintiff asserts that he was at his girlfriend’s (at the time) house, who was experiencing voltage problems| PG&E was called out twice for this, could not locate the issue, did not check the meter socket (for Hot Socket) (in violation of OSHA), and no other contractors (at the time) could locate the cause. He then took it upon himself to check for Hot Socket because he was concerned about the safety hazard it posed, AND because PG&E’s Code of Conduct implies consent in this situation) because they claim to always “put safety first”. Under these circumstances, “manifestations off consent would lead a reasonable person to believe” that “consent” was implied by PG&H -9- OPPOSITION TO DEMURRER© o (Merced County Sheriff's Employees’ Assn. v. County of Merced (1987) 188 Cal. App. 3d 662, 670). a. Retaliation occurred because this was threatening to MS&E leadership, because once MS&E| leadership learned of these facts, they realized it pointed out a major MS&E work-product failure and safety violation, leading to a conclusory presumption that the MS&E leadership was in fear of (“believed”) that the Plaintiff may disclose this information to a governing] agency. b. It would be unreasonable for the Defendant to suggest that i. PG&E didn’t prioritize policy/procedure over safety in the determination to terminate the Plaintiff ii. The employer-employee relationship did not create an “implied in-fact” duty for the Plaintiff to “put safety first” by inspecting the meter under the circumstances alleged iii, The two key decision makers in the Plaintiff's termination, (MS&E Director Earle Davis & MS&E Manager Alan Jones), weren’t aware that 1) PG&E’s records indicated electrical} hazards were occurring 2) PG&E’s Code of Conduct required the Plaintiff to prioritize “Safety” over “Procedure” and 3) MS&E Director Earle Davis was ultimately responsible for ensuring proper inspection procedures (for Hot Socket) were in place (for PG&H “Troublemen” to follow), and that the Plaintiff potentially exposed a failure in MS&E’s| work product, by pointing out that he inspected the meter, after two PG&E “Troublemen” failed to. 17. Appropriately summarized: by MS&E leaders indisputably knowing they must “put safety first”, failing to prioritize safety themselves, and then terminating the Plaintiff for taking action when al serious safety hazard was present, where authorization is reasonably implied, conveys complete hypocrisy, a contradiction of sentiment, and a disregard for the rights and safety of others. Defendant’s Demurrer to Plaintiff’s Sixth Cause of Action (Statements and Opposition) [REASON ONE DECLARED IN DEFENDANT’S DEMURRER] 18. The defendant’s demurer declares “There is no reasonable expectation of privacy with respect to} words spoken in a public place (such as a public court hearing)”. 19. The Plaintiff's “reasonable expectation of privacy”, as alleged, relies on much more than “words spoken in a public place” as the Defendant is implying by this statement. 20. Pages 33 — 35, paragraphs 125 — 132 describe the numerous reasons which the Plaintiff relied on] to establish a “reasonable expectation of privacy”: -10- OPPOSITION TO DEMURRER.Co eo IN AD 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cc 9 a. As the court states in (Hernandez, supra, 47 Cal.4th at pp. 286-287), “The identity of the intruder” should be taken into consideration when determining a “reasonable expectation of privacy” i. As plead in the complaint, it is a reasonable expectation that the Plaintiff's employer would have no right to extract very personal information about the employee’s personal affairs| (SAC, page 2, paragraph 7). b. As the court states in (Hernandez, supra, 47 Cal.4th at pp. 286-287), “The extent to whic other persons [the defendant] had access to [private information]” should be taken into consideration when determining a “reasonable expectation of privacy”. The extent to which| PG&E had access: i. PG&E had no access or authorization (from the Plaintiff) to extract this information| whatsoever; nor did they attempt to even indicate they had such interest (SAC, page 33, paragraph 126). ii, The private information which was obtained by PG&E was held by a person who the Plaintiff had a personal relationship with, was not available to PG&E without a secretive, calculated, improper, and offensive attempt to intrude upon this information, this information would not be available by the Defendant (SAC, page 33, paragraph 126, 127). c. As the court states in (Hernandez, supra, 47 Cal.4th at pp. 286-287), “The means by which the intrusion occurred” should be taken into consideration when determining a “reasonable| expectation of privacy” the means consisted of: i. As plead in the Plaintiff's SAC, PG&E only discovered information of the Plaintiff's arrest due to discovery powers granted by the court, in the legal proceeding brought by the Plaintiff against PG&E in 2016, for FMLA related violations (SAC, page 11, paragraph 38). 1. Regarding plaintiffs and lawsuits, Californians have an “inalienable tight of privacy” provided by Article 1, section 1 of the California Constitution (Britt v. Superior Court (1978) 20 Cal. 3d 844, 855-856). This constitutional right has been held to operate even iff a statutory privilege does not protect the matter in question (Davis v. Superior Court (1992) 7 Cal.App.4"*1008, 1014). “Although there may be an implicit partial waiver, the scope of such waiver must be narrowly, rather than expansively construed... [thel impartial waiver] encompasses only discovery directly relevant to the plaintif claim and essential to the fair resolution of the lawsuit.” (avis, supra, 7 Cal. App.4"4 at 1014). -l- OPPOSITION TO DEMURRERCem DDH RB YW NY N oN bw oN ON yy aa a ea a ek BNRRRSRRBRSERRGREEESE IS ii, PG&E’s legal team utilized discovery powers to conduct a background check investigation of the Plaintiff, which uncovered “pending” criminal charges against the Plaintiff. PG&E’s| iii. iv. (Faria v. San Jacinto Unified School District [1996] 50 Cal. App. 4 1939) the court states “Because [Labor code Section 432.7] refers to decisions to promote, train, or terminate as legal team then discovered that these “pending” criminal charges were misdemeanor allegations of vandalism and obstructing a utility (charges which were later dismissed), PG&E then handed off this information to PG&E Corporate Security for further discovery} (investigation) (SAC, page 11-12, paragraph 38). It would be unreasonable for PG&E to claim that the investigation conducted by Corporate Security officer, Kevin Griswold, would’ve been discovery that was “reasonably calculated” to lead to admissible evidence related to the Plaintiff's FMLA retaliation claim. well as those to hire, the section clearly governs an employer’s decisions involving both! existing employees and applicants for employment Cc 3 1. Based on these alleged facts, it is reasonable to presumptuously conclude that PG&E’s| legal team felt that they had the right to “discover” further information about this matter, even though it had nothing to do with “directly relevant [information] to the plaintiff's} [legal] claim” (Davis, supra, 7 Cal.App.4" at 1014). 1, The background check conducted by the Defendant in the 2016 legal case brought by the Plaintiff against PG&E was not done in compliance with the California Investigative| Consumer Reporting Agencies Act/Fair Credit and Reporting Act (CA ICRA/FCRA) requirements, which includes a. Written authorization (from the employee, prior to requesting the report) b. A notice of adverse action (before taking any adverse action) 1. In (Pitman v. City of Oakland 197 Cal. App. 3d 1037, 1044 [Cal.Ct.App. 1988]), the court states “While the last sentence of the statute provides that an employer may ask anl employee about an arrest for which he or she’s is awaiting trial, the statute cannot be read| as permitting the employer to utilize the information of mere arrest for disciplinary purposes. To hold -otherwise would violate the fundamental presumption of suspect’s innocence prior to the contrary being provided” The court concludes that this subdivision (a) does nothing more than permit an employer inquiry [to th employee]. Similarly, as implied by section 432.7(a), this subdivision permits th employer to ask an employee about an arrest, and not from any other source, as state in section 432.7 (SAC, page 23, paragraph 77-78). -12- OPPOSITION TO DEMURRERoO QI DH PB Bw NY N Nv NNN RDB ee ea Se ee BNRRRRPEBRNRBRESRDAZREEBSH AS © o 2. As the Plaintiff states in the SAC, before inquiring about the arrest to the Plaintiff himself, the Defendant proceeded to inquire about the Plaintiff's arrest to other sources| such as the court, court documents, police reports, the Plaintiff's [former] girlfriend, and! then finally, the Plaintiff (as alleged in the SAC pages 33-34, paragraphs 128-130) v. Furthermore, even after the words were spoken (and heard) in open court by Griswold, the Plaintiff still held a reasonable expectation of privacy because 1. In Pitman vs. City of Oakland, the California Supreme Court states “.. we hold that where| a plaintiff seeks to state a privacy cause of action for damages based upon... utilization of arrest data, an essential element of the cause of action, to be pleaded and proved, is| that the arrest did not result in conviction” d. Therefore, it is inferred that when an arrest does not result in conviction, actions taken by, employers which result in (wrongfully) offensive, adverse, and intrusive misconduct can result in liability for the Defendant under the intrusion-into-private-affairs tort. [REASON TWO DECLARED IN DEFENDANT’S DEMURRER] 21. The defendant’s demurer declares “individuals have no protected privacy interest in what a} third-party says about them unless the defendant uses misrepresentation or force to coerce the third-party to make statements about the plaintiff” a. The defendant’s demurrer which cites “...SAC does not allege.. PG&E corporate security broke into [Rassel’s] home..., misrepresented..., hypnotized..., threatened.. or coerced [Rassel]” is examples the Defendant derives from (Taus v. Loftus 151 P.3d 1185 [Cal. 2007]) which the California Supreme Court clearly states before making such suggestions “to put forth a few extreme examples”, then goes on to give the aforementioned “extreme examples” which the Defendant is (wrongfully) attempting to suggest is such a standard to constitute an “intrusion”. i. Instead, in the case (Taus v. Loftus 151 P.3d 1185 [Cal. 2007]}) the California Supreme Court establishes a much lower threshold to constitute actionable conduct for an “intrusion intol personal affairs”. The court goes on to acknowledge that “simple posing questions about a plaintiff” [to a third party] does not subject the defendant to liability (Shulman v. Group WI Productions Inc. 18 Cal.4" 200, 236-237). However, as established in Taus v. Loftus, some sort of “..misrepresentation..”, referred to as “intentionally engaging in.. utilizing improper and unanticipated means, particularly when such information would not have been disclosed| by the [relative or friend] absent [the] use of such means.. could be found highly offensive for purposes of the intrusion-into-private-matters tort and liability could be imposed...”(Taus v. Loftus 151 P.3d 1185 [Cal. 2007] emphasis added). -13- OPPOSITION TO DEMURRER.Coe YN DH RF WN Yb N Ye YP YN N NN Be Be Be ee ee oe ee on DH FB YW NH KF SO we KAA A RH HBS Cc o ii. The defendant in Taus v. Loftus did not engage in “extremes”, of either threatening, hypnotizing the third party (as the Defendant is suggesting in their demurrer), nor the other extreme of “simple posing of questions” (Shulman v. Group W Productions Inc. 18 Cal.4"y 200, 236-237). Instead, the Defendant in Taus vs. Loftus utilized an “unorthodox. improper, and unanticipated” method of extracting information from the third-party (even though “misrepresentation” to the third party was not exceedingly coercive or illegal). The California Supreme Courtdoes go on to find that an “improper and unanticipated [unforeseen] means” is sufficient to constitute an intrusion into private matters tort. b. Additionally, in the Taus v. Loftus case, the California Supreme court goes on to state “.. the intrusion-into-private-matters tort is specifically intended to provide a remedy to the person who} has sustained an invasion of his or her privacy by virtue of the misconduct [of thd Defendant]”. c. When the “improper and unanticipated [or ‘unforeseen’] means” was perpetrated by the Defendant in order to access “information [which] would not have been disclosed by the friend or relative absent [the defendant’s] use of such means”, does subject the defendant to liability, when the “improper. unanticipated” standard is applied. d. Most importantly, in Taus v. Loftus, the California Supreme court states (referring to “improper/unanticipated/unforeseen” misconduct by the Defendant), “If Loftus engaged in such behavior, we cannot say, as a matter of law, that such questionable and| unorthodox action constitutes conduct that plaintiff reasonably should have foreseen or anticipated. Instead, we believe a jury could find that plaintiff reasonably expected that an investigator would! not seek.. such personal information [using improper/unanticipated/unforeseen misconduct]” i In other words, it is mot the third-party (Rassel, in this case) who the “improper, unanticipated/[unforsceen]” misconduct test must be applied to, but instead, this misconductl test must be applied to the Plaintiff [should have/could have foreseen] ii, In this case, as implied in the Plaintiff's SAC, the conduct of Griswold was| unanticipated/unforeseen because of the following: 1. PG&E gave no indication to the Plaintiff that they were investigating the Plaintiff for thd arrest, prior to taking action (SAC, page 11, paragraph 38). 2. PG&E gave no indication that they knew of the Plaintiff's arrest, prior to taking action| (SAC, pages 11-12, paragraphs 38-39). 3. PG&E gave no indication that they would be sitting in the Plaintiff's arraignment hearing, prior to taking action (SAC, page 12, paragraph 39). -14- OPPOSITION TO DEMURRERCm YN KD WH FF BN NON N NY N N NY DY Be Be Be ewe oe oe ee ee BRRRREBRRBRSRSBWRAEESH ES iii. Cc 2 4. It is not a usual part of PG&E business practices for Corporate Security Investigators to secretly “sit in” and listen to arraignment hearings of employees who’ve been arrested] (SAC, page 32-33, paragraph 124). 5. It is not a usual part of PG&E business practices for Corporate Security Investigators to secretly establish contact with [former] girlfriends of employees to ask for and obtain very personal, private details about the employee, without the employee’s knowledge on consent (SAC, page 33, paragraph 126). 6. The entire investigation conducted by Griswold was predicated by PG&E’s legal discovery, which had nothing to do with discovery “directly relevant to the Plaintiffs claim” [of FMLA retaliation] as established by (Davis, supra, 7 Cal.App.4" at 1014), making the entire investigation “unanticipated” by the Plaintiff (SAC, page 32. paragraph 122). 7. The Plaintiff had no reason to believe that PG&E knew of or planned to conduct any of the aforementioned facts. 8. The Plaintiff maintained innocence, plead innocence, and was later exonerated of thel allegations. In this case, as alleged facts imply in the Plaintiff's SAC, the conduct of Griswold was improper because of the following: 1. All of the court documents regarding the case and individuals involved had their personal information redacted, “the victim’s” (aka the accuser, Rassel) name was not spoken or discussed in court. By these facts, the court’s intent was clearly to maintain] privacy/confidentiality (SAC, page 12, paragraph 39). 2. An “arraignment” hearing is only a formal hearing of which to inform of what allegations are being made; NOT a trial or conviction (which is how Griswold’s actions} imply he treated it) (SAC, page 18, paragraph 62). 3. At the Plaintiff's arraignment hearing, Griswold (unbeknownst to the plaintiff) listened] to and wrote down the address as the judicial officer stated it out loud (which was redacted in court documents) (SAC, page 12, paragraph 39). 4. Griswold then took that address and improperly cross-referenced it using PG&E utility, records in order to identify and establish contact with the Plaintiffs [former] girlfriend, Ruth Rassel (also an unforeseeable action, Griswold nor anyone at PG&E gave any| notice or mention to the Plaintiff about Griswold’s actions or intentions whatsoever (SAC, page 33, paragraph 127). -15- OPPOSITION TO DEMURRERCom IN DH Fw NX N MY NY NN Nee we ewe ee Re es eB BRRERREBRNRRSREAWREARTSEHSAS III. CONCLUSION 22. As plead in the Plaintiff's SAC, PG&E MS&E Manager Young Nguyen, in an email to the Plaintiff in approximately March of 2016 confirmed his statement [referring to the PlaintfPs b. From July until approximately November of 2016, the Plaintiff felt like the working| Cc 3 5. Again, the entire investigation by Griswold was predicated by PG&E’s legal discovery. which had nothing to do with discovery “directly relevant to the Plaintiffs claim” [of FMLA retaliation] as established by (Davis, supra, 7 Cal.App.4" at 1014), making the entire investigation “improper” (SAC, page 32-33, paragraph 124). iv. Additionally, further “misconduct” has been perpetrated by the Defendant as alleged in the Plaintiff's SAC, page 32, paragraph 123, Causation: Substantial Factor (“but for” [CACI No. 430.]) “but for” the defendant’s conduct (FMLA retaliation) which gave rise to thel FMLA retaliation complaint filed by the Plaintiff against the Defendant in May of 2016, the legal complaint never would’ve been filed against PG&E, PG&E’s legal team never| would’ve discovered the arrest, Griswold’s intrusive investigation never would’ve take: place, the third-party never would have disclosed such personal information, the Plaintiff's arrest would’ ve been dismissed (as plead), and no wrongdoing would’ve been perpetrated, related to these allegations. FMLA use] “if your attendance doesn’t improve, you could end up terminated” a. This email was a direct, written threat to the Plaintiff for utilizing protected FMLA/CFRA| use. Approximately 45-60 days later, the Plaintiff filed and served PG&E with the legal claim| with allegations of FMLA law-related violations. Determined on terminating the Plaintiff after] a failed mediation meeting between the Plaintiff and Defendant in October of 2016, PG&E’s legal team embarked on a highly aggressive, improper legal discovery campaign which] included “fishing” for reasons, anything they could find, to terminate the Plaintiff. relationship between himself and his new supervisor, Alan Jones was improving. However, within weeks of the failed mediation meeting in October of 2016, between PG&E an Plaintiff, the Plaintiff noticed a change in demeanor in both Alan Jones and Earle Davi (MS&E leadership). Then, suddenly, inexplicably, and without any notice or warnin, whatsoever, in February of 2017, Jones provided the Plaintiff with his first “poor” annual work performance review in almost a decade with the company, and imposed a “coaching} plan” (discipline). c. It became clear to the Plaintiff that PG&E was attempting to constructively discharge the Plaintiff. Upon advice from counsel, the Plaintiff withdrew his legal complaint in order to| -16- OPPOSITION TO DEMURRERCom YN KD HW eh ww 10 . However, before the DFEH could Process the Plaintiff's request to mediate the situation, . Then, at the guidance, direction, and authorization of PG&E’s Legal team, in a systematically, . This means that PG&E’s Human Resource team, Legal team, Corporate Security and 23. For all of the above reasons, the Defendants’ demurrer should be overruled in its entirety. In the| unlikely event the demurrer is sustained, Plaintiff requests leave to amend. oO a involve the Department of Fair Employment and Housing (since the Plaintiff was still employed), hoping the DFEH could mediate a reasonable solution between the Plaintiff and| Defendant’s MS&E Management. PG&E Legal’s discovery “fishing” expedition lead to what would become Griswold’ investigation, and the Plaintiff's subsequent termination. coordinated fashion, PG&E Corporate Security Officer Kevin Griswold carried out al prejudicial, covert, intrusive, and highly offensive investigation of the Plaintiff, which lead tol MS&E leadership discovering that Plaintiff had known of, and exposed a failure in MS&E’s| work product, by exposing employees and customers to potentially serious hazards without! addressing them (Hot Socket). In fear of being exposed, and with authorization & consent from both the PG&E Legal team, as well as PG&E Human Resources, MS&E leadership] elected to terminate the Plaintiff on the basis of the Plaintiff's admission that he inspected al meter (for safety reasons) without (express/written) authorization from the company. i. (Despite the fact that Hot Sockets are known by MS&E leadership to potentially cause fires) MS&E leadership all knew of, yet still authorized/recommended/executed termination of the Plaintiff, in complete defiance of privacy laws, labor laws, OSHA (and potentially other) regulations, PG&E’s “putting safety first” policy, and the personal rights and safety of others. -17- OPPOSITION TO DEMURRER