Preview
1 James T. Jones (SBN 167967)
JACKSON LEWIS P.C.
2 400 Capitol Mall, Suite 1600
Sacramento, Califomia 95814
3 Telephone: (916)341-0404
Facsimile: (916)341-0141
4 Email: james.jones(a),iacksonlewis.com MLED/ENDORSED
5 Benjamin A. Mains (SBN 274056)
JACKSON LEWIS P.C. AUG - 5 2022
6 50 Califomia Street, 9'^ Floor
San Francisco, Califomia 94111 By:. M. PEMELTOM
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7 Telephone: (415) 394-9400 osputy Clork
Facsimile: (415)394-9401
8 Email: benjamin.mainsffttjacksonlewis.com
9 Attomeys for Defendant
LIQUI-BOX CORPORATION
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11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF SACRAMENTO
13 SAJIDA ZAMAN, CASE NO. 34-2019-00252121 -CU-WT-GDS
14 Plaintiff DEFENDANT LIQUI-BOX
CORPORATION'S REPLY IN SUPPORT
15 vs. OF ITS MOTION FQR SUMMARY
JUDGMENT AND/OR SUMMARY
16 LIQUI-BOX CORPORATION, and DOES 1 ADJUDICATION OF ISSUES
through 20, inclusive,
17 Date: August 10, 2022
Defendants. Time: 1:30 p.m.
18 Dept: 53
Reservation No. 2644651 BY FAX
19
Complaint Filed: March 8, 2019
20 Trial Date: September 12, 2022
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REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX
CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
T A B L E Q F CONTENTS
2
3 L INTRODUCTION 3
4 II. L E G A L ARGUMENT 5
5 A. Plaintiffs Reliance On Acosta V. Dura-Fibre LLC Is Misplaced. There Is No
Triable Issue Of Material Fact To Support Plaintiffs Causes Of Action For
6 Wrongful Termination In Violation Of Public Policy And Retaliation 5
7 B. The Undisputed Facts Show That Defendant Terminated Plaintiff Because She
Unreasonably Failed To Promptly Report A Workplace Injury In Violation Of
8 Policy, And Plaintiff Has Presented No "Substantial, Responsive And Admissible"
^ Evidence Establishing That Reason Is Merely Pretext 7
C. Plaintiffs Opposition Fails To Cite To Any Evidence Establishing That A Triable
'0 Issue Of Material Fact Exists As To Either Counts 4 Or 5 8
1^ D. No Triable Issues Of Material Fact Exist To Support Plaintiffs Seventh Cause of
Action Because Plaintiff Did Not Suffer an Injury Resulting from Unfair
12 Competition 9
13 E. No Triable Issues Of Material Fact Exist To Support Plaintiffs Claim For Punitive
Damages 9
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15 HL CONCLUSION 9
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REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX
CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
1 I. INTRODUCTION
2 In January 2018, after being off work for several weeks and having visited a hospital
3 emergency room for an injury to her knee. Plaintiff retumed to work and lied to her employer,
4 reporting that she had injured herself at work in early December 2018. (Separate Statement of
5 Undisputed Material Facts (hereinafter "UMFs") 13-23; Declaration of James T. Jones in Support
6 of Defendant's Objections to Plaintiffs Evidence and in Support of Defendant's Reply
7 (hereinafter "Jones Deck"), | 5, Ex. B.) She was very specific about how the injury occurred.
8 She filled out a form (the "AS 1059 Employee Investigation Form") stating the injury occurred
9 "pushing mega tote" (a type of cart) and that her injury was "muscle swelling." She indicated she
10 had previously received medical attention on December 31, 2018 (while she was off work), and
11 she signed and dated the form on January 3, 2019. (UMFs 13-17.)
12 In September 2019, Plaintiff provided swom testimony about her injury in a workers'
13 compensation deposition. In that deposition, on page 4, lines 10 through 13, she testified:
14 "Q: Specifically today you are claiming an injury that occurred on December 3, 2018, to
15 your left knee, is that correct?"
16 A: Yes."
17 JonesDecl,t6, Ex. Eat 4:7-13.
18 She repeated several times during the deposition that her injury occurred on December 3,
19 2018, and she described the specific event that causing the injury:
20 " I was working on my lines and then pushing the pallet full of bags
and box, so I feel a little bit at that time I say at some time I feel
21 like cracking or something and I ignored it and my work continued
and then after that 1 try to take medicine. I am going to be okay,
22 but I am not okay. And then December vacation coming up, maybe
I am going to stay home, but when 1 stay home, 1 feel worse and I
23 go to E.R. in December. So they check my knees and they say I
have knee problem.
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So then I go back again, my company, in January 2""^, and my friend
25 asking me, "Are you still working?" (Unintelligible) and she said,
well you know, ask the supervisor to get the medicine, so that's
26 why I go to supervisor to ask - to tell him to - I need more
medicine, because 1 put too much money on my pain so I cannot
27 afford it."
28 JonesDecl,T|6, Ex. Eat 13:2-17.
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REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX
CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
1 In her workers' compensation deposition. Plaintiff testified that, when she visited the
2 emergency room in late December, she received an x-ray and ultrasound, and she was provided
3 pain medication. (Jones Decl, ^ 6, Ex. E at 13:20-14:11.) On January 3, 2019, Plaintiff signed a
4 workers' compensation claim form indicating she had injured herself on December 3, 2018, and
5 that she had a "Left Knee Sprain/Strain." (Jones Decl, ^ 7, Ex. F)
6 Now, Plaintiff attempts to persuade the Court that the injury report she made to her
7 employer (Defendant) was not late because she did not know she had been injured at work until
8 someone told her that for the first time on January 3, 2019. That is a preposterous argument. She
9 also testified at her deposition in this case (taken on June 28, 2022) that she did not really know
10 how she injured herself or when it occurred. (Jones Deck, | 5, Ex. D at 105:20-110:18.) At least
11 one of Plaintiff s stories is a lie. She either lied when she repeatedly stated (often under oath) that
12 she injured herself at work in early December 2018 pushing a mega tote, or she is lying now
13 when she says she first learned her injury was work-related on January 3, 2019, and she is unsure
14 of when it occurred. Either way, she has no case. If her first story about an injury resulting form
15 pushing a mega tote on December 3, 2018 is true, then her report was made a month late, she
16 violated the Critical Safety Behaviors Policy, and her termination lawfully resulted from that
17 policy violation. If her first story was not tme, then she made a false report that Defendant relied
18 upon in good faith, and Plaintiffs false report is not legally protected activity.
19 Plaintiff also wants to eat her cake and have it too when she claims that Defendant's
20 Critical Safety Behaviors Policy discouraged her from reporting her injury, but also claims she
21 barely speaks English and had no idea what the policy said. (Jones Deck, 5, Ex. D at 38:4;
22 39:6-16; 42:6; 72:12; 80:15-84-22; 136:15 and Ex. 3 thereto.) The policy does not discourage
23 reporting, it requires reporting, and there are no facts in either of Plaintiffs competing stories that
24 support Plaintiffs claim that she feared she would be disciplined for making a timely report of
25 her injury. In the first story version, she explains exactly the circumstances that led her to report,
26 and nowhere does she indicate that there was any delay due to a fear of the Critical Safety
27 Behavior policy. In the second version of her story, she claims she reported her injury on the day
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REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX
CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
1 she first learned it was work-related. Once again, there is no set of facts to support her false
2 argument.
3 Plaintiff has failed to raise a triable issue of fact regarding any of Defendant's proffered
4 Undisputed Material Facts. She quibbles about whether certain quotes from documents should
5 have included more content, but those "disputes" are immaterial and the documents are in
6 evidence for the Court to see in their entirety. She offers speculation about motives that are
7 totally unsupported by facts, and she uses smoke and mirrors to conjure up triable disputes by
8 smearing Defendant with accusations about totally irrelevant events. Whether other safety
9 hazards existed in the workplace, or whether they did not, has absolutely no bearing on this case.
10 This case tums on one question - was Defendant justified in terminating Plaintiffs employment
11 when she told them on January 3, 2019, that she had suffered a workplace injury on December 3,
12 2018, and she failed to report it because she ignored the injury thinking it would get better? The
13 answer to that question is clear. Defendant was entitled to rely on the Critical Safety Behavior
14 policy to terminate Plaintiffs employment. (UMFs 1-27.) An employer has the right to
15 terminate an employee who ignored a workplace injury for a month and only reported it when the
16 pain got so bad that she had to go to the emergency room. (In fact. Plaintiff did not even report it
17 on her first day back to work.) Defendant's Critical Safety Behavior policy is designed to prevent
18 that kind of hazardous conduct. An employer also has the right to terminate an employee who
19 falsely reports that she ignored a workplace injury for a month and only reported it when the pain
20 got so bad that she had to go to the emergency room.
21 n. L E G A L ARGUMENT
22 A. PlaintifTs Reliance On Acosta V. Dura-Fibre L L C Is Misplaced. There Is No
Triable Issue Of Material Fact To Support Plaintiffs Causes Qf Action For
23 Wrongful Termination In Violation Of Public Policy And Retaliation.
24 The material facts are undisputed: Plaintiff reported she had suffered a workplace injury
25 and delayed reporting it for several weeks in express violation of Defendant's Critical Safety
26 Behaviors Policy. (UMFs 1-27.) Plaintiffs arguments and storytelling have done nothing to
27 contradict any ofthe undisputed facts. Plaintiff cites to no law, whether statutory, regulatory, or
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REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX
CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
1 case law, that says Defendant's policy is unlawful. Rather, Plaintiff strains the language of the
2 law to make unconvincing arguments that the policy is unlawful.
3 For example. Plaintiff argues that Defendant's policy is unlawful because in an
4 unpublished opinion, in a distant jurisdiction that is govemed by separate law, another trial court
5 found that discipline imposed under a dissimilar safety agreement which relied upon vague and
6 undefined terms that were applied inconsistently "could be pretextual in nature." (Plaintiffs
7 Opposition, 11:19.) However, Plaintiff grossly mischaracterizes the court's holding in that case.
8 In Acosta v. Dura-Fibre LLC, (E.D. Wise. 2018) 2018 Wl 2433589, the court concluded that the
9 employer's policy punished injured workers more severely than uninjured workers who engaged
10 in the same unsafe behavior. Those concems do not exist in this case and Defendant's Critical
11 Safety Behaviors policy does not treat injured workers and uninjured workers differently.
12 Plaintiff tries to concoct an argument that Defendant's 4 Panel Review discriminates against
13 injured employees. (Plaintiffs Opposition, 5:15-6:3.) Defendant's Standard Operating
14 Procedure AS 1025 does not indicate that the 4 Panel Review is a disciplinary tool, the 4 Panel
15 Review for Plaintiff did not recommend any discipline, and in the section for "Recommended
16 Action," it states only, "Recommended Action: HR notified and filed claim with Travelers.
17 (UMFs 5-9, 20-22.) Sajida is scheduled for physical therapy appointments 3 times a week for the
18 next two months." Angela Kenyon, Defendant's Chief Human Resources Officer testified that
19 the 4 Panel Review is not disciplinary in nature. (Jones Decl, If 2, Ex. A, 56:9-57:12, 59:1-25.)
20 Moreover, Plaintiffs Opposition fails to acknowledge that in direct response to the Acosta
21 decision, OSHA issued a "clarification" as to its regulations pertaining to workplace safety
22 incentive programs, clearly stating that it did not intend courts to apply its regulations as
23 draconianly as the Acosta court did. Clarification of OSHA's Position on Workplace Safety
24 Incentive Programs and Post-Incident Drug Testing under 29 C.F.R. § 1904.35(b)(l)(iv), OSHA
25 Std Interp 1904.35(b)(l)(iv), 2018 WL 8868167 (OcL 11, 2018). Rather, pursuant to the
26 clarification, "employers mav still utilize workplace safety incentive programs if they are
27 applied consistently and legitimately." (Pizzella v. Susquehanna Nuclear LLC, No. 3:17-CV-
28 01752, 2019 U.S. DisL LEXIS 179225, at *15 (M.D. Pa. Oct 16, 2019) [emphasis added].)
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REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX
CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
1 Plaintiff cannot escape the undisputed facts that she told Defendant she was injured at
2 work on December 3, 2018, she ignored the pain, and she reported her injury a month later after
3 she went to the emergency room for care. As such, summary judgment should be granted.
4 B. The Undisputed Facts Show That Defendant Terminated Plaintiff Because
She Unreasonably Failed To Promptly Report A Workplace Injury In
5 Violation Of Poiicy, And Plaintiff Has Presented No "Substantial, Responsive
And Admissible" Evidence Establishing That Reason Is Merely Pretext.
7 With regard to Califomia's three-part burden-shifting test for claims of discrimination in
8 violation of FEHA, Plaintiff focuses on the prima facie stage, but her analysis stops there, without
9 ever addressing stages two or three. (Plaintiffs Opposition, 15:6-14; Caldwell v. Paramount
10 Unified School Dist. (1995) 41 Cal. App 4th 189, 203.)
11 Pursuant to long-standing precedent, once a plaintiff establishes a prima facie case of
12 discrimination, the burden then shifts, first, in stage two, to the defendant to articulate a
13 legitimate, non-discriminatory reason for its actions, and then back, in stage three, to the plaintiff
14 to establish that the defendant's proffered reasons were pretextual. (Id.)
15 As such, even assuming arguendo that the "facts" Plaintiff cites in her Opposition as
16 "direct evidence" of "discriminative motive" do establish a prima facie case, it is nonetheless
17 undisputed that Defendant has articulated a legitimate reason for its conduct (UMFs 1-27.)
18 (thereby meeting its burden in stage two), and that Plaintiff has not "demonstrate[d] by
19 substantial, responsive and admissible evidence that the reasons proffered for her termination
20 [were] a pretext to mask an unlawful, discriminatory motive." (Clark v. Claremont Univ. Ctr.
21 (1992) 6 Cal.App.4th 639, 663; McDonnell Douglas, 411 U.S. at 802; St. Marys Honor Ctr. v.
22 Hicks (1993) 509 U.S. 502, 506.) In short. Plaintiff has failed to meet her burden in stage three -
23 and therefore neglected to even address it.
24 Indeed, none of Plaintiffs "facts" address pretext in any manner whatsoever, and her
25 selective and subjective interpretation of Defendant's motivation does not create a genuine issue
26 of fact. As Per the court in McGory v. Applied Signal Technology, Inc., (2013) 212 Cal. App. 4th
27 1510, 1537, "mere speculation, conjecture, or fantasy are insufficient to create triable issue as to
28 employer's alleged discriminatory motive."
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REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX
CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
1 In short. Plaintiffs cited evidence in no way establishes a "non-speculative" causal link
2 between any prohibited motivation and termination. (See Saelzler v. Advanced Group 400 (2001)
3 25 Cal.4th 763, 774.) The undisputed facts show Defendant terminated Plaintiffs employment
4 expressly because she unreasonably failed to promptly report a workplace injury in violation of
5 the Critical Safety Behaviors policy. (UMFs 55-81.) Summary judgment should be granted.
6 C. Plaintiffs Opposition Fails To Cite To Any Evidence Establishing That A
Triable Issue Of Material Fact Exists As To Either Counts 4 Or 5,
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8 Plaintiffs fourth and fifth causes of action are based on the allegation that Defendant
9 failed to engage in a timely, good faith interactive process with Plaintiff to determine an effective
10 accommodation after leaming of her work-related injury. However, it is undisputed that Plaintiff
11 had already violated Defendant's Critical Safety Behaviors policy and that that violation formed
12 the basis of Defendant's legitimate, non-discriminatory, and non-retaliatory discharge. (UMFs
13 82-108.) Because reasonable accommodation is always prospective, an employer is not required
14 to excuse past misconduct even if it is the result of the individual's disability. (Wilkin v. Cmty.
15 Hosp. of Monterey Peninsula (2021) 71 Cal.App.5th 806, 829.) Engaging in any further
16 interactive process after leaming of Plaintiff s misconduct, beyond taking the steps Defendant had
17 already taken (providing access to Medcor to triage Plaintiffs injury [UMF 104], providing
]8 access to U.S. Health Works Medical Group [UMFs 99-100], investigating the cause of Plaintiffs
19 injury and timeliness of reporting [UMFs 101-103]) would have been a futile act because
20 Plaintiffs employment was terminated for violating the Critical Safety Behaviors policy. (See
21 UMFs 82-108.)
22 Plaintiffs Opposition cites no evidence that that a triable issue of material fact exists as to
23 either claim. Rather, she merely bootstraps the argument from her discrimination claim that
24 "Defendant's reliance on the CBS [sic] Policy was pretext for discrimination." (Plaintiffs
25 Opposition, 18:12.) And in support thereof. Plaintiff merely includes two footnotes referencing
26 the entirety of Exhibits B and G of Angela Kenyon's Declaration In Support of Defendant's
27 Motion For Summary Judgment/Adjudication - neither of which support Plaintiffs claim of
28 pretext, or raise a triable issue of material fact as to either Count 4 or 5. (Plaintiffs Opposition,
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REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX
CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
1 p.l8 fns 91, 92 [Liqui-Box's "Standard Operating Procedure AS 1025," issued on March 6, 2017,
2 that sets forth Defendant's practices for investigating safety incidents that require medical
3 attention, near miss incidents, and fires; and Plaintiffs "4 Panel EHS Disciplinary Review."])
4 D. No Triable Issues Of Material Fact Exist To Support PlaintifPs Seventh
Cause of Action Because Plaintiff Did Not Suffer an Injury Resulting from
5 Unfair Competition.
6 Claims under the Califomia Unfair Competition Law (Cal. Bus. & Prof. Code, § 17200 et
7 seq.) can only be brought by an individual "who has suffered injury in fact and has lost money or
8 property as a result of the unfair competition." (Cal. Bus. & Prof Code, § 17204; Californians for
9 Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223, 231 -32.)
10 Plaintiffs Opposition cites Solus Indus. Innovations, LLC v. Superior Court, (2018) 4 Cal.
11 5th 316, as standing for the proposition that an employee who suffers an injury from an
12 employer's OSHA regulation violation can bring a UCL cause of action. (Plaintiffs Opposition,
13 18:15.) Plaintiff further claims that because a dispute of fact exists as to "whether Defendant's
14 CSB Policy No. 1 policy violates OSHA's regulations," Plaintiff has therefore raised triable issue
15 of material fact as to the UCL claim. (Id. at p. 19, In 3.) However, there is no evidence
16 suggesting that Defendant's policy violates the law, or that the policy had any effect whatsoever
17 on Plaintiff Plaintiff fails to connect the dots establishing that the alleged OSHA violation
18 caused Plaintiffs injury, and Solus held that federal OSHA did not preempt the UCL. It did not
19 hold that federal OSHA regulations, or more particularly the federal regulation Plaintiff relies
20 upon, provide a basis for a UCL claim on the facts presented here. Defendant terminated Plaintiff
21 because she violated the Critical Safety Behaviors policy by failing to timely report a known
22 workplace injury for several weeks. (UMFs 163-189.) As such, she is not someone "who has
23 suffered injury in fact and has lost money or property as a result of the unfair competition."
24 E. No Triable Issues Qf Material Fact Exist To Support Plaintiffs Claim For
Punitive Damages.
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26 The clear intent of Defendant's safety policies and procedures can be easily understood by
27 reviewing their written safety records. The Critical Safety Behaviors policy, AS 1025, and the 4
28 Panel Review related to Plaintiffs injury all establish that Defendant had one motive - to keep
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REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX
CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
1 the workplace safe. There is absolutely no evidence suggesting that Plaintiff was targeted for
2 some unlawful purpose. (UMFs 1-27.) In fact, the testimony of Plaintiffs own supporting
3 witness, Angela Beard, proves Defendant applied its safety policies evenly. Beard described an
4 incident where she reported a maintenance worker who violated the Critical Safety Behaviors
5 policy by working on a machine without following proper safety procedures. She testified that
6 she saw him violate a safety mle, she reported him, and his employment was terminated as a
7 result (Jones Deck, Tf3, Exh. B, Beard Depo., 90:12-92:11.) There is absolutely no basis to
8 subject Defendant to the risk that punitive damages create, no matter how remote, when
9 Defendant simply followed a policy that it created to keep the workplace and its employees safe,
10 and did so in a manner that was not intended to (and did not) discriminate.
11 III. CONCLUSION
12 For the foregoing reasons, Liqui-Box respectfully requests the Court grant its Motion for
13 Summary Judgement in its entirety. Altematively, Liqui-Box requests the Court to grant
14 summary adjudication as to those issues as to which there are no genuine issues of material fact.
15 Dated: August 5, 2022 JACKSON LEWIS P.C.
0
17 By:
18 JAMES T.JONES
BENJAMIN A. MAINS
19 Attomeys for Defendant
LIQUI-BOX CORPORATION
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REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX
CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES
1 PROOF OF S E R V I C E
2 I am employed in the County of Sacramento, State of Califomia. I am over the age of
eighteen years and not a party to the within action; my business address is Jackson Lewis P.C,
3 400 Capitol Mall, Suite 1600, Sacramento, Califomia 95814.
4 On August 5, 2022,1 served the within:
5 R E P L Y MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
DEFENDANT LIQUI-BOX CORPORATION'S IN SUPPORT OF DEFENDANT'S
6 MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF
ISSUES
7
on all interested parties in said action, through their attomeys of record as listed below, by placing
8 a tme and correct copy thereof, addressed as shown below, by the following means:
9 |--| PERSONAL SERVICE - by causing personal delivery of a true and correct copy
thereof to the person at the address set forth below, in accordance with Code of Civil
10 Procedure section 1011 (a).
11 |--| M A I L - by placing a true and correct copy thereof enclosed in a sealed envelope with
postage thereon fully prepaid for deposit in the United States Post Office mailbox, at
12 my business address shown above, following Jackson Lewis P.C.'s ordinary business
practices for the collection and processing of mail, of which I am readily familiar, and
13 addressed as set forth below. On the same day correspondence is placed for collection
and mailing, it is deposited in the ordinary course of business with the United States
14 Postal Service.
15 |--| OVERNIGHT DELIVERY - by depositing a tme and correct copy thereof enclosed
in a sealed envelope with delivery fees thereon fully prepaid in a box or other facility
16 regularly maintained by UPS or delivering to an authorized courier or driver
authorized by UPS to receive documents, addressed as set forth below.
17
E-MAIL QR ELECTRONIC TRANSMISSION - Based on Califomia Code of Civil
18 Procedure Section 1010.6(e)(l)(2), I caused the document(s) described above to be
sent from e-mail address kelly.asano@iacksonlewis.com to the person(s) at the e-mail
19 address(es) listed below. I did not receive, within a reasonable time after the
transmission, any electronic message or other indication that the transmission was
20 unsuccessful.
21 Joshua F. Falakassa (SBN 295045) Arash S. Khosrowshahi (SBN 293246)
FALAKASSA LAW, P.C. LIBERTY MAN LAW, P.C.
22 1901 Avenue ofthe Stars, Suite 450 1010 F Street, Suite 300
Los Angeles, CA 90067 Sacramento, CA 95814
23 Telephone: (818)456-6168 Telephone: (916)573-0469
Facsimile: (888)505-0868 Facsimile: (866)700-0787
24 Email: Josh(a),Falakassalaw.com Email: ash(a),libertvmanlaw.com
25 I declare under penalty of perjury under the laws of the State of Califomia that the
foregoing is tme and correct, and that this declaration was executed on August 5, 2022 at
Roseville, Califomia. \^,Qjil0M^^
Kelly Asano
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PROOF OF SERVICE
Preview
1 James T. Jones (SBN 167967) JACKSON LEWIS P.C. 2 400 Capitol Mall, Suite 1600 Sacramento, Califomia 95814 3 Telephone: (916)341-0404 Facsimile: (916)341-0141 4 Email: james.jones(a),iacksonlewis.com MLED/ENDORSED 5 Benjamin A. Mains (SBN 274056) JACKSON LEWIS P.C. AUG - 5 2022 6 50 Califomia Street, 9'^ Floor San Francisco, Califomia 94111 By:. M. PEMELTOM ' 7 Telephone: (415) 394-9400 osputy Clork Facsimile: (415)394-9401 8 Email: benjamin.mainsffttjacksonlewis.com 9 Attomeys for Defendant LIQUI-BOX CORPORATION 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SACRAMENTO 13 SAJIDA ZAMAN, CASE NO. 34-2019-00252121 -CU-WT-GDS 14 Plaintiff DEFENDANT LIQUI-BOX CORPORATION'S REPLY IN SUPPORT 15 vs. OF ITS MOTION FQR SUMMARY JUDGMENT AND/OR SUMMARY 16 LIQUI-BOX CORPORATION, and DOES 1 ADJUDICATION OF ISSUES through 20, inclusive, 17 Date: August 10, 2022 Defendants. Time: 1:30 p.m. 18 Dept: 53 Reservation No. 2644651 BY FAX 19 Complaint Filed: March 8, 2019 20 Trial Date: September 12, 2022 21 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES T A B L E Q F CONTENTS 2 3 L INTRODUCTION 3 4 II. L E G A L ARGUMENT 5 5 A. Plaintiffs Reliance On Acosta V. Dura-Fibre LLC Is Misplaced. There Is No Triable Issue Of Material Fact To Support Plaintiffs Causes Of Action For 6 Wrongful Termination In Violation Of Public Policy And Retaliation 5 7 B. The Undisputed Facts Show That Defendant Terminated Plaintiff Because She Unreasonably Failed To Promptly Report A Workplace Injury In Violation Of 8 Policy, And Plaintiff Has Presented No "Substantial, Responsive And Admissible" ^ Evidence Establishing That Reason Is Merely Pretext 7 C. Plaintiffs Opposition Fails To Cite To Any Evidence Establishing That A Triable '0 Issue Of Material Fact Exists As To Either Counts 4 Or 5 8 1^ D. No Triable Issues Of Material Fact Exist To Support Plaintiffs Seventh Cause of Action Because Plaintiff Did Not Suffer an Injury Resulting from Unfair 12 Competition 9 13 E. No Triable Issues Of Material Fact Exist To Support Plaintiffs Claim For Punitive Damages 9 14 15 HL CONCLUSION 9 16 17 18 19 20 21 22 23 24 25 26 27 28 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 1 I. INTRODUCTION 2 In January 2018, after being off work for several weeks and having visited a hospital 3 emergency room for an injury to her knee. Plaintiff retumed to work and lied to her employer, 4 reporting that she had injured herself at work in early December 2018. (Separate Statement of 5 Undisputed Material Facts (hereinafter "UMFs") 13-23; Declaration of James T. Jones in Support 6 of Defendant's Objections to Plaintiffs Evidence and in Support of Defendant's Reply 7 (hereinafter "Jones Deck"), | 5, Ex. B.) She was very specific about how the injury occurred. 8 She filled out a form (the "AS 1059 Employee Investigation Form") stating the injury occurred 9 "pushing mega tote" (a type of cart) and that her injury was "muscle swelling." She indicated she 10 had previously received medical attention on December 31, 2018 (while she was off work), and 11 she signed and dated the form on January 3, 2019. (UMFs 13-17.) 12 In September 2019, Plaintiff provided swom testimony about her injury in a workers' 13 compensation deposition. In that deposition, on page 4, lines 10 through 13, she testified: 14 "Q: Specifically today you are claiming an injury that occurred on December 3, 2018, to 15 your left knee, is that correct?" 16 A: Yes." 17 JonesDecl,t6, Ex. Eat 4:7-13. 18 She repeated several times during the deposition that her injury occurred on December 3, 19 2018, and she described the specific event that causing the injury: 20 " I was working on my lines and then pushing the pallet full of bags and box, so I feel a little bit at that time I say at some time I feel 21 like cracking or something and I ignored it and my work continued and then after that 1 try to take medicine. I am going to be okay, 22 but I am not okay. And then December vacation coming up, maybe I am going to stay home, but when 1 stay home, 1 feel worse and I 23 go to E.R. in December. So they check my knees and they say I have knee problem. 24 So then I go back again, my company, in January 2""^, and my friend 25 asking me, "Are you still working?" (Unintelligible) and she said, well you know, ask the supervisor to get the medicine, so that's 26 why I go to supervisor to ask - to tell him to - I need more medicine, because 1 put too much money on my pain so I cannot 27 afford it." 28 JonesDecl,T|6, Ex. Eat 13:2-17. 3 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 1 In her workers' compensation deposition. Plaintiff testified that, when she visited the 2 emergency room in late December, she received an x-ray and ultrasound, and she was provided 3 pain medication. (Jones Decl, ^ 6, Ex. E at 13:20-14:11.) On January 3, 2019, Plaintiff signed a 4 workers' compensation claim form indicating she had injured herself on December 3, 2018, and 5 that she had a "Left Knee Sprain/Strain." (Jones Decl, ^ 7, Ex. F) 6 Now, Plaintiff attempts to persuade the Court that the injury report she made to her 7 employer (Defendant) was not late because she did not know she had been injured at work until 8 someone told her that for the first time on January 3, 2019. That is a preposterous argument. She 9 also testified at her deposition in this case (taken on June 28, 2022) that she did not really know 10 how she injured herself or when it occurred. (Jones Deck, | 5, Ex. D at 105:20-110:18.) At least 11 one of Plaintiff s stories is a lie. She either lied when she repeatedly stated (often under oath) that 12 she injured herself at work in early December 2018 pushing a mega tote, or she is lying now 13 when she says she first learned her injury was work-related on January 3, 2019, and she is unsure 14 of when it occurred. Either way, she has no case. If her first story about an injury resulting form 15 pushing a mega tote on December 3, 2018 is true, then her report was made a month late, she 16 violated the Critical Safety Behaviors Policy, and her termination lawfully resulted from that 17 policy violation. If her first story was not tme, then she made a false report that Defendant relied 18 upon in good faith, and Plaintiffs false report is not legally protected activity. 19 Plaintiff also wants to eat her cake and have it too when she claims that Defendant's 20 Critical Safety Behaviors Policy discouraged her from reporting her injury, but also claims she 21 barely speaks English and had no idea what the policy said. (Jones Deck, 5, Ex. D at 38:4; 22 39:6-16; 42:6; 72:12; 80:15-84-22; 136:15 and Ex. 3 thereto.) The policy does not discourage 23 reporting, it requires reporting, and there are no facts in either of Plaintiffs competing stories that 24 support Plaintiffs claim that she feared she would be disciplined for making a timely report of 25 her injury. In the first story version, she explains exactly the circumstances that led her to report, 26 and nowhere does she indicate that there was any delay due to a fear of the Critical Safety 27 Behavior policy. In the second version of her story, she claims she reported her injury on the day 28 /// 4 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 1 she first learned it was work-related. Once again, there is no set of facts to support her false 2 argument. 3 Plaintiff has failed to raise a triable issue of fact regarding any of Defendant's proffered 4 Undisputed Material Facts. She quibbles about whether certain quotes from documents should 5 have included more content, but those "disputes" are immaterial and the documents are in 6 evidence for the Court to see in their entirety. She offers speculation about motives that are 7 totally unsupported by facts, and she uses smoke and mirrors to conjure up triable disputes by 8 smearing Defendant with accusations about totally irrelevant events. Whether other safety 9 hazards existed in the workplace, or whether they did not, has absolutely no bearing on this case. 10 This case tums on one question - was Defendant justified in terminating Plaintiffs employment 11 when she told them on January 3, 2019, that she had suffered a workplace injury on December 3, 12 2018, and she failed to report it because she ignored the injury thinking it would get better? The 13 answer to that question is clear. Defendant was entitled to rely on the Critical Safety Behavior 14 policy to terminate Plaintiffs employment. (UMFs 1-27.) An employer has the right to 15 terminate an employee who ignored a workplace injury for a month and only reported it when the 16 pain got so bad that she had to go to the emergency room. (In fact. Plaintiff did not even report it 17 on her first day back to work.) Defendant's Critical Safety Behavior policy is designed to prevent 18 that kind of hazardous conduct. An employer also has the right to terminate an employee who 19 falsely reports that she ignored a workplace injury for a month and only reported it when the pain 20 got so bad that she had to go to the emergency room. 21 n. L E G A L ARGUMENT 22 A. PlaintifTs Reliance On Acosta V. Dura-Fibre L L C Is Misplaced. There Is No Triable Issue Of Material Fact To Support Plaintiffs Causes Qf Action For 23 Wrongful Termination In Violation Of Public Policy And Retaliation. 24 The material facts are undisputed: Plaintiff reported she had suffered a workplace injury 25 and delayed reporting it for several weeks in express violation of Defendant's Critical Safety 26 Behaviors Policy. (UMFs 1-27.) Plaintiffs arguments and storytelling have done nothing to 27 contradict any ofthe undisputed facts. Plaintiff cites to no law, whether statutory, regulatory, or 28 /// 5 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 1 case law, that says Defendant's policy is unlawful. Rather, Plaintiff strains the language of the 2 law to make unconvincing arguments that the policy is unlawful. 3 For example. Plaintiff argues that Defendant's policy is unlawful because in an 4 unpublished opinion, in a distant jurisdiction that is govemed by separate law, another trial court 5 found that discipline imposed under a dissimilar safety agreement which relied upon vague and 6 undefined terms that were applied inconsistently "could be pretextual in nature." (Plaintiffs 7 Opposition, 11:19.) However, Plaintiff grossly mischaracterizes the court's holding in that case. 8 In Acosta v. Dura-Fibre LLC, (E.D. Wise. 2018) 2018 Wl 2433589, the court concluded that the 9 employer's policy punished injured workers more severely than uninjured workers who engaged 10 in the same unsafe behavior. Those concems do not exist in this case and Defendant's Critical 11 Safety Behaviors policy does not treat injured workers and uninjured workers differently. 12 Plaintiff tries to concoct an argument that Defendant's 4 Panel Review discriminates against 13 injured employees. (Plaintiffs Opposition, 5:15-6:3.) Defendant's Standard Operating 14 Procedure AS 1025 does not indicate that the 4 Panel Review is a disciplinary tool, the 4 Panel 15 Review for Plaintiff did not recommend any discipline, and in the section for "Recommended 16 Action," it states only, "Recommended Action: HR notified and filed claim with Travelers. 17 (UMFs 5-9, 20-22.) Sajida is scheduled for physical therapy appointments 3 times a week for the 18 next two months." Angela Kenyon, Defendant's Chief Human Resources Officer testified that 19 the 4 Panel Review is not disciplinary in nature. (Jones Decl, If 2, Ex. A, 56:9-57:12, 59:1-25.) 20 Moreover, Plaintiffs Opposition fails to acknowledge that in direct response to the Acosta 21 decision, OSHA issued a "clarification" as to its regulations pertaining to workplace safety 22 incentive programs, clearly stating that it did not intend courts to apply its regulations as 23 draconianly as the Acosta court did. Clarification of OSHA's Position on Workplace Safety 24 Incentive Programs and Post-Incident Drug Testing under 29 C.F.R. § 1904.35(b)(l)(iv), OSHA 25 Std Interp 1904.35(b)(l)(iv), 2018 WL 8868167 (OcL 11, 2018). Rather, pursuant to the 26 clarification, "employers mav still utilize workplace safety incentive programs if they are 27 applied consistently and legitimately." (Pizzella v. Susquehanna Nuclear LLC, No. 3:17-CV- 28 01752, 2019 U.S. DisL LEXIS 179225, at *15 (M.D. Pa. Oct 16, 2019) [emphasis added].) 6 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 1 Plaintiff cannot escape the undisputed facts that she told Defendant she was injured at 2 work on December 3, 2018, she ignored the pain, and she reported her injury a month later after 3 she went to the emergency room for care. As such, summary judgment should be granted. 4 B. The Undisputed Facts Show That Defendant Terminated Plaintiff Because She Unreasonably Failed To Promptly Report A Workplace Injury In 5 Violation Of Poiicy, And Plaintiff Has Presented No "Substantial, Responsive And Admissible" Evidence Establishing That Reason Is Merely Pretext. 7 With regard to Califomia's three-part burden-shifting test for claims of discrimination in 8 violation of FEHA, Plaintiff focuses on the prima facie stage, but her analysis stops there, without 9 ever addressing stages two or three. (Plaintiffs Opposition, 15:6-14; Caldwell v. Paramount 10 Unified School Dist. (1995) 41 Cal. App 4th 189, 203.) 11 Pursuant to long-standing precedent, once a plaintiff establishes a prima facie case of 12 discrimination, the burden then shifts, first, in stage two, to the defendant to articulate a 13 legitimate, non-discriminatory reason for its actions, and then back, in stage three, to the plaintiff 14 to establish that the defendant's proffered reasons were pretextual. (Id.) 15 As such, even assuming arguendo that the "facts" Plaintiff cites in her Opposition as 16 "direct evidence" of "discriminative motive" do establish a prima facie case, it is nonetheless 17 undisputed that Defendant has articulated a legitimate reason for its conduct (UMFs 1-27.) 18 (thereby meeting its burden in stage two), and that Plaintiff has not "demonstrate[d] by 19 substantial, responsive and admissible evidence that the reasons proffered for her termination 20 [were] a pretext to mask an unlawful, discriminatory motive." (Clark v. Claremont Univ. Ctr. 21 (1992) 6 Cal.App.4th 639, 663; McDonnell Douglas, 411 U.S. at 802; St. Marys Honor Ctr. v. 22 Hicks (1993) 509 U.S. 502, 506.) In short. Plaintiff has failed to meet her burden in stage three - 23 and therefore neglected to even address it. 24 Indeed, none of Plaintiffs "facts" address pretext in any manner whatsoever, and her 25 selective and subjective interpretation of Defendant's motivation does not create a genuine issue 26 of fact. As Per the court in McGory v. Applied Signal Technology, Inc., (2013) 212 Cal. App. 4th 27 1510, 1537, "mere speculation, conjecture, or fantasy are insufficient to create triable issue as to 28 employer's alleged discriminatory motive." 7 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 1 In short. Plaintiffs cited evidence in no way establishes a "non-speculative" causal link 2 between any prohibited motivation and termination. (See Saelzler v. Advanced Group 400 (2001) 3 25 Cal.4th 763, 774.) The undisputed facts show Defendant terminated Plaintiffs employment 4 expressly because she unreasonably failed to promptly report a workplace injury in violation of 5 the Critical Safety Behaviors policy. (UMFs 55-81.) Summary judgment should be granted. 6 C. Plaintiffs Opposition Fails To Cite To Any Evidence Establishing That A Triable Issue Of Material Fact Exists As To Either Counts 4 Or 5, 7 8 Plaintiffs fourth and fifth causes of action are based on the allegation that Defendant 9 failed to engage in a timely, good faith interactive process with Plaintiff to determine an effective 10 accommodation after leaming of her work-related injury. However, it is undisputed that Plaintiff 11 had already violated Defendant's Critical Safety Behaviors policy and that that violation formed 12 the basis of Defendant's legitimate, non-discriminatory, and non-retaliatory discharge. (UMFs 13 82-108.) Because reasonable accommodation is always prospective, an employer is not required 14 to excuse past misconduct even if it is the result of the individual's disability. (Wilkin v. Cmty. 15 Hosp. of Monterey Peninsula (2021) 71 Cal.App.5th 806, 829.) Engaging in any further 16 interactive process after leaming of Plaintiff s misconduct, beyond taking the steps Defendant had 17 already taken (providing access to Medcor to triage Plaintiffs injury [UMF 104], providing ]8 access to U.S. Health Works Medical Group [UMFs 99-100], investigating the cause of Plaintiffs 19 injury and timeliness of reporting [UMFs 101-103]) would have been a futile act because 20 Plaintiffs employment was terminated for violating the Critical Safety Behaviors policy. (See 21 UMFs 82-108.) 22 Plaintiffs Opposition cites no evidence that that a triable issue of material fact exists as to 23 either claim. Rather, she merely bootstraps the argument from her discrimination claim that 24 "Defendant's reliance on the CBS [sic] Policy was pretext for discrimination." (Plaintiffs 25 Opposition, 18:12.) And in support thereof. Plaintiff merely includes two footnotes referencing 26 the entirety of Exhibits B and G of Angela Kenyon's Declaration In Support of Defendant's 27 Motion For Summary Judgment/Adjudication - neither of which support Plaintiffs claim of 28 pretext, or raise a triable issue of material fact as to either Count 4 or 5. (Plaintiffs Opposition, 8 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 1 p.l8 fns 91, 92 [Liqui-Box's "Standard Operating Procedure AS 1025," issued on March 6, 2017, 2 that sets forth Defendant's practices for investigating safety incidents that require medical 3 attention, near miss incidents, and fires; and Plaintiffs "4 Panel EHS Disciplinary Review."]) 4 D. No Triable Issues Of Material Fact Exist To Support PlaintifPs Seventh Cause of Action Because Plaintiff Did Not Suffer an Injury Resulting from 5 Unfair Competition. 6 Claims under the Califomia Unfair Competition Law (Cal. Bus. & Prof. Code, § 17200 et 7 seq.) can only be brought by an individual "who has suffered injury in fact and has lost money or 8 property as a result of the unfair competition." (Cal. Bus. & Prof Code, § 17204; Californians for 9 Disability Rights v. Mervyn's, LLC (2006) 39 Cal.4th 223, 231 -32.) 10 Plaintiffs Opposition cites Solus Indus. Innovations, LLC v. Superior Court, (2018) 4 Cal. 11 5th 316, as standing for the proposition that an employee who suffers an injury from an 12 employer's OSHA regulation violation can bring a UCL cause of action. (Plaintiffs Opposition, 13 18:15.) Plaintiff further claims that because a dispute of fact exists as to "whether Defendant's 14 CSB Policy No. 1 policy violates OSHA's regulations," Plaintiff has therefore raised triable issue 15 of material fact as to the UCL claim. (Id. at p. 19, In 3.) However, there is no evidence 16 suggesting that Defendant's policy violates the law, or that the policy had any effect whatsoever 17 on Plaintiff Plaintiff fails to connect the dots establishing that the alleged OSHA violation 18 caused Plaintiffs injury, and Solus held that federal OSHA did not preempt the UCL. It did not 19 hold that federal OSHA regulations, or more particularly the federal regulation Plaintiff relies 20 upon, provide a basis for a UCL claim on the facts presented here. Defendant terminated Plaintiff 21 because she violated the Critical Safety Behaviors policy by failing to timely report a known 22 workplace injury for several weeks. (UMFs 163-189.) As such, she is not someone "who has 23 suffered injury in fact and has lost money or property as a result of the unfair competition." 24 E. No Triable Issues Qf Material Fact Exist To Support Plaintiffs Claim For Punitive Damages. 25 26 The clear intent of Defendant's safety policies and procedures can be easily understood by 27 reviewing their written safety records. The Critical Safety Behaviors policy, AS 1025, and the 4 28 Panel Review related to Plaintiffs injury all establish that Defendant had one motive - to keep 9 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 1 the workplace safe. There is absolutely no evidence suggesting that Plaintiff was targeted for 2 some unlawful purpose. (UMFs 1-27.) In fact, the testimony of Plaintiffs own supporting 3 witness, Angela Beard, proves Defendant applied its safety policies evenly. Beard described an 4 incident where she reported a maintenance worker who violated the Critical Safety Behaviors 5 policy by working on a machine without following proper safety procedures. She testified that 6 she saw him violate a safety mle, she reported him, and his employment was terminated as a 7 result (Jones Deck, Tf3, Exh. B, Beard Depo., 90:12-92:11.) There is absolutely no basis to 8 subject Defendant to the risk that punitive damages create, no matter how remote, when 9 Defendant simply followed a policy that it created to keep the workplace and its employees safe, 10 and did so in a manner that was not intended to (and did not) discriminate. 11 III. CONCLUSION 12 For the foregoing reasons, Liqui-Box respectfully requests the Court grant its Motion for 13 Summary Judgement in its entirety. Altematively, Liqui-Box requests the Court to grant 14 summary adjudication as to those issues as to which there are no genuine issues of material fact. 15 Dated: August 5, 2022 JACKSON LEWIS P.C. 0 17 By: 18 JAMES T.JONES BENJAMIN A. MAINS 19 Attomeys for Defendant LIQUI-BOX CORPORATION 20 21 22 23 24 25 26 27 28 10 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 1 PROOF OF S E R V I C E 2 I am employed in the County of Sacramento, State of Califomia. I am over the age of eighteen years and not a party to the within action; my business address is Jackson Lewis P.C, 3 400 Capitol Mall, Suite 1600, Sacramento, Califomia 95814. 4 On August 5, 2022,1 served the within: 5 R E P L Y MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LIQUI-BOX CORPORATION'S IN SUPPORT OF DEFENDANT'S 6 MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY ADJUDICATION OF ISSUES 7 on all interested parties in said action, through their attomeys of record as listed below, by placing 8 a tme and correct copy thereof, addressed as shown below, by the following means: 9 |--| PERSONAL SERVICE - by causing personal delivery of a true and correct copy thereof to the person at the address set forth below, in accordance with Code of Civil 10 Procedure section 1011 (a). 11 |--| M A I L - by placing a true and correct copy thereof enclosed in a sealed envelope with postage thereon fully prepaid for deposit in the United States Post Office mailbox, at 12 my business address shown above, following Jackson Lewis P.C.'s ordinary business practices for the collection and processing of mail, of which I am readily familiar, and 13 addressed as set forth below. On the same day correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States 14 Postal Service. 15 |--| OVERNIGHT DELIVERY - by depositing a tme and correct copy thereof enclosed in a sealed envelope with delivery fees thereon fully prepaid in a box or other facility 16 regularly maintained by UPS or delivering to an authorized courier or driver authorized by UPS to receive documents, addressed as set forth below. 17 E-MAIL QR ELECTRONIC TRANSMISSION - Based on Califomia Code of Civil 18 Procedure Section 1010.6(e)(l)(2), I caused the document(s) described above to be sent from e-mail address kelly.asano@iacksonlewis.com to the person(s) at the e-mail 19 address(es) listed below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was 20 unsuccessful. 21 Joshua F. Falakassa (SBN 295045) Arash S. Khosrowshahi (SBN 293246) FALAKASSA LAW, P.C. LIBERTY MAN LAW, P.C. 22 1901 Avenue ofthe Stars, Suite 450 1010 F Street, Suite 300 Los Angeles, CA 90067 Sacramento, CA 95814 23 Telephone: (818)456-6168 Telephone: (916)573-0469 Facsimile: (888)505-0868 Facsimile: (866)700-0787 24 Email: Josh(a),Falakassalaw.com Email: ash(a),libertvmanlaw.com 25 I declare under penalty of perjury under the laws of the State of Califomia that the foregoing is tme and correct, and that this declaration was executed on August 5, 2022 at Roseville, Califomia. \^,Qjil0M^^ Kelly Asano 28 PROOF OF SERVICE