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1 TODD H. HARRISON, ESQ (SBN 230542) [SPACE BELOW FOR COURT USE ONLY]
BRETT FERGUSON, ESQ. (SBN 281519)
2 JENNIFER S. BASKARON, ESQ. (SBN 319434)
PERONA, LANGER, BECK & HARRISON
3 A Professional Corporation
3925 Atlantic Avenue
4 Long Beach, California 90807-3501
(562) 426-6155 Fax (562) 490-9823
5
Attorneys for Plaintiff, Javier Martinez
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF KERN
10
11 JAVIER MARTINEZ, an Individual, Case Number:
12 Plaintiff,
COMPLAINT FOR:
13 vs.
(1) Sex Harassment in Violation of
14 FEHA;
AUTOMOTIVE TESTING AND
15 DEVELOPMENT SERVICES, INC., a (2) Failure to Take All Reasonable
California Corporation; ROSE WARE, an Steps to Prevent Harassment in
16 Individual; and DOES 1 through 10, Violation of Government Code
Inclusive, §12940(k) et seq.;
17
Defendants. (3) Retaliation in Violation of FEHA;
18
(4) Wrongful Termination in Violation
19 of Public Policy and;
20 (5) Retaliation and Wrongful
Termination in Violation of Labor
21 Code Section 1102.5
22
Jury Trial Demanded
23
24
25
Plaintiff, Javier Martinez, alleges as follows:
26
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27
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28
COMPLAINT FOR DAMAGES
1 JURISDICTION AND VENUE
2 1. This Court has jurisdiction over this action pursuant to California Constitution
3 Article VI, § 10, which grants the Superior Court "original jurisdiction in all causes except
4 those given by statute to other courts." The statutes under which this action is brought do
5 not specify any other basis for jurisdiction.
6 2. Plaintiff has exhausted his administrative remedies by the timely request of a
7 Right-to-Sue notice from the Civil Rights Department within three years of the events
8 alleged herein.
9 3. This Court has jurisdiction over all Defendants because, based on information
10 and belief, each party is either a citizen of California, has sufficient minimum contacts in
11 California, or otherwise intentionally avails itself of the California market so as to render the
12 exercise of jurisdiction over it by the California courts consistent with traditional notions of
13 fair play and substantial justice.
14 4. Venue is proper in this Court because, upon inf ormation and belief, one or
15 more of the named Defendants reside, transact business, or have offices in this county and
16 the acts and omissions alleged herein took place in this county.
17
18 THE PARTIES
19 5. Plaintiff, JAVIER MARTINEZ (hereinafter “Plaintiff”), was at all relevant times
20 employed in Kern County, in the State of California.
21 6. Defendant, AUTOMOTIVE TESTING AND DEVELOPMENT SERVICES, INC.
22 (hereinafter referred to as “ AUTOMOTIVE TESTING” and/or “Defendant”), a California
23 corporation, is an employer whose employees are engaged in commerce throughout this
24 county and the State of California.
25 7. Defendant, ROSE WARE, (hereinafter “WARE” or collectively “Defendants”),
26 was and is, upon information and belief, a resident of Kern County, in the State of
27 California.
28 ///
2 COMPLAINT FOR DAMAGES
1 8. Plaintiff is unaware of the true names or capacities of the Defendants sued
2 herein under the fictitious names DOES 1-10, but prays for leave to amend and serve such
3 fictitiously named Defendants pursuant to California Code of Civil Procedure § 474, once
4 their names and capacities become known.
5 9. Plaintiff is informed and believes, and thereon alleges, that DOES 1-10 are the
6 partners, joint ventures, parent companies, owners, shareholders or managers or
7 employees of Defendants and therefore, were acting on behalf of Defendants.
8 10. AUTOMOTIVE TESTING, WARE, and DOES 1-10 will hereafter be
9 collectively referred to as “Defendants.”
10 11. Plaintiff is informed and believes, and thereon alleges, that each of said
11 Defendants are in some manner intentionally, negligently, or otherwise responsible for the
12 acts, occurrences or transactions alleged herein.
13 12. Plaintiff is informed and believes, and thereon alleges, that each and all of the
14 acts and omissions alleged herein were performed by, or are attributable to, all Defendants,
15 each acting as the agent for the other, with legal authority to act on the other’s behalf. The
16 acts of Defendants were in accordance with, and represent the official policy of Defendants.
17 13. Plaintiff is informed and believes, and thereon alleges, that at all times
18 material hereto and mentioned herein, each Defendant sued herein (both named and DOE
19 Defendants) was the agent, servant, employer, joint venturer, joint employer, contractor,
20 contractee, partner, division owner, subsidiary, division, alias, and/or alter ego with and/or of
21 each of the remaining Defendants and was, at all times, acting within the purpose and
22 scope of such agency, servitude, employment, contract, ownership, subsidiary, alias and/or
23 alter ego and with the authority, consent, approval, control, influence and ratification of each
24 remaining Defendant sued herein.
25 14. At all times herein mentioned, Defendants, and each of them, ratified each
26 and every act or omission complained of herein. At all times herein mentioned, the
27 Defendants, and each of them, aided and abetted the acts and om issions of each and all
28 the other Defendants in proximately causing the damages herein alleged.
3 COMPLAINT FOR DAMAGES
1 GENERAL ALLEGATIONS
2 15. Defendant is a full service automotive testing laboratory located in Ontario,
3 California. Plaintiff worked for Defendant, at its California City location, from in or around
4 October 2022 to on or about May 24, 2023 as a Professional Driver. Plaintiff’s duties
5 included, but were not limited to, test driving the vehicles on an ability track and logging any
6 issues with the vehicle discovered in the test drive.
7 16. Plaintiff is a 25 year old male. During his employment, his night shift
8 supervisor, WARE, sexually harassed Plaintiff. In or around March 2023, W ARE grabbed
9 Plaintiff’s arm while trying to tell him how to perform a specific test. She grabbed his arm, as
10 if she was attempting to caress him and make a pass at him. Plaintiff felt very
11 uncomfortable of the inappropriate touching and pulled his arm away right away.
12 Regardless, WARE did not care how she made him feel, as she went on to caress his chest
13 and then his shoulder, in a flirtatious manner. WARE would also look at Plaintiff up and
14 down in a sexual manner. At no point did Plaintiff consent to the inappropriate touching nor
15 did he want to deal with her sexual harassment.
16 17. Approximately two days after the sexual harassment, Plaintiff sent an email
17 to his manager Jason Johnson (“Johnson”). In his email, he complained that he was
18 uncomfortable with her conduct and that it violated Defendant’s sexual harassment policy.
19 He mentioned that he had a witness to the sexual harassment and he requested his
20 complaint be investigated. He further made clear that he did not feel comfortable working
21 alone with her and he was worried about being retaliated against for complaining.
22 18. Approximately two days after he sent his email to Johnson, Johnson called
23 Plaintiff into his office to have him write out a statement regarding the sexual harassment.
24 Plaintiff in fact did, including documenting who witnessed the harassment. Plaintiff asked
25 Johnson for a copy of the statement, but he refused to give him one. Along with the refusal
26 to give him a copy, it became clear that Johnson told others about Plaintif f’s complaint.
27 19. After his complaint, WARE became relentlessly retaliating against Plaintiff and
28
4 COMPLAINT FOR DAMAGES
1 continued her sexual harassment. WARE would complain if he didn’t take his break at a
2 certain time, though there was no requirement of a specific time for his break, she would
3 block him from exiting the building and would not move till he heard what she wanted to say,
4 standing too close to Plaintiff, again making him feel violated. WARE would follow him
5 around the tracks for no reason, making him feel that he had no personal space. She also
6 complained about his performance when not justified, and would even make comments like:
7 “we better be careful because people like to make complaints around here.”
8 20. Plaintiff’s work environment due to WARE’S retaliation and sexual harassment
9 became unbearable. As a result, Plaintiff complained to Johnson once again. Johnson did
10 nothing to address this complaint. Moreover, he began noticing that even Johnson was
11 trying to avoid him. It is clear Defendant made no efforts to investigate his complaints, as
12 the conduct continued and became even worse. WARE began taking her breaks at the
13 same time of Plaintiff or would even extend her breaks so that she could still be on break
14 when Plaintiff took his, another form of sexual harassment. She intentionally made Plaintiff
15 continue to feel uncomfortable and retaliated against.
16 21. On or around May 17, 2023, WARE approached Plaintiff while he was on
17 break and tried to have a conversation with him about matters unrelated to work. Plaintiff
18 tried to get away from her, but once again she blocked his exit, making him feel targeted
19 and again sexually harassed. She knew that Plaintiff would not attempt to move her out of
20 the way, so she took any opportunity to make him feel uncomfortable.
21 22. Plaintiff then sent another email to Johnson explaining how uncomfortable he
22 was. He even made clear that he wasn’t complaining about her being his lead (trying to be
23 reasonable and have his complaints addressed) but he took issue with her putting him in
24 uncomfortable situations and making him feel trapped. He notified Johnson she was making
25 a point of taking breaks with him to further harass him.
26 23. Once again Johnson did not address Plaintiff’s complaints. Instead, in
27 response, Plaintiff was terminated on or around May 24, 2023. The timing of his last
28 complaint and when he was terminated demonstrates blatant retaliation. Moreover,
5 COMPLAINT FOR DAMAGES
1 Defendant refused to give Plaintiff any reason for his termination. Plaintiff not only believes
2 his termination had to do with his complaints, but because he had heard from other
3 employees that WARE was doing what she could to have him fired.
4 24. At all times, Defendants’ conduct, as described above, was enacted
5 maliciously and in total disregard and oppression of Plaintiff’s rights and welfare. As a result
6 of these circumstances, Plaintiff has been damaged economically by the loss of both his
7 current and future employment with Defendants, and has also been damaged emotionally
8 through Defendants’ unlawful conduct. The full extent of Plaintiff’s damages will be subject
9 to a matter of proof at trial.
10
11 FIRST CAUSE OF ACTION
12 Sex Harassment in Violation of FEHA
13 (Against All Defendants and DOES 1-10)
14 25. Plaintiff incorporates by reference and realleges as if fully stated herein the
15 allegations set out above in this complaint.
16 26. At all times mentioned in this complaint, California’s Fair Employment and
17 Housing Act (“FEHA”), was in full force and effect and was binding on Defendants.
18 Pursuant to FEHA, an employer is prohibited from harassing and/or discriminating against
19 an employee on the basis of sex. California Government Code § 12940 et seq.
20 27. The harassing acts of Defendants mentioned in this Complaint against Plaintiff
21 were unwelcome and were committed by Defendants in their capacity as Defendants’
22 employees, agents or persons under Defendants’ control and were committed within the
23 scope of their employment.
24 28. Defendants’ conduct as mentioned in this Complaint, subjected Plaintiff to
25 sexual harassment and intimidation all of which created an abusive and hostile
26 environment.
27 29. Plaintiff complained numerous times and Defendants failed to take any
28 corrective action to end those conditions.
6 COMPLAINT FOR DAMAGES
1 30. Defendants knew or should have known of the sexual harassment and
2 Defendants failed to exercise reasonable care to prevent and promptly correct any future
3 harassing behavior against Plaintiff. Therefore, Defendants, and each of them, are
4 responsible for their employees’ conduct.
5 31. As a direct and proximate result of Defendants, and each of their actions,
6 Plaintiff has suffered severe and serious emotional distress, all to Plaintiff’s damage in a
7 sum within the jurisdiction of this Court and to be shown according to proof.
8 32. As a direct and proximate result of Defendants’ conduct and failure to act,
9 Plaintiff has suffered and continues to suffer actual damages, including losses in income,
10 earnings, and other employment benefits, the exact amount of which is not yet known and
11 to be shown according to proof.
12 33. The conduct of the Defendants in sexually harassing Plaintiff, subjected
13 Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff’s rights, as it was
14 anticipated by Defendants that Plaintiff would be subjected to a hostile and oppressive
15 environment. Plaintiff is informed and believes, and based thereon alleges, that the sexual
16 harassment alleged in this Complaint conducted by Defendants, and each of them, was
17 done with an intent to cause injury to the Plaintiff. As a consequence of the aforesaid
18 oppressive, malicious, and despicable conduct, Plaintiff is entitled to an award of punitive
19 damages in a sum to be shown according to proof.
20 34. Plaintiff has incurred and continues to incur legal expenses and attorney fees
21 pursuant to California Government Code § 12965.
22
23 SECOND CAUSE OF ACTION
24 Failure to Take All Reasonable Steps to Prevent Harassment
25 in Violation of Government Code §12940(k) et seq.
26 (Against AUTOMOTIVE TESTING and DOES 1-10)
27 35. Plaintiff incorporates by reference and realleges as if fully stated herein the
28 allegations set out above in the preceding paragraphs.
7 COMPLAINT FOR DAMAGES
1 36. Defendants failed to take immediate and appropriate corrective action to
2 prevent and remedy the harassment to which Plaintiff was subjected to. Specifically,
3 Defendants failed to properly investigate and remedy any claims of sexual harassment
4 committed by WARE. Defendants did not take action and ratified his behavior.
5 37. As a direct and proximate result of Defendants’ conduct, Plaintiff has
6 sustained and continues to suffer severe and serious emotional distress, all to Plaintiff’s
7 damage in an amount to be shown according to proof.
8 38. The conduct of Defendants in harassing Plaintiff and retaliating against him
9 because of his opposition to unlawful activity, subjected Plaintiff to cruel and unjust hardship
10 in conscious disregard of Plaintiff’s rights, as it was anticipated by Defendants, and each of
11 them, that Plaintiff would suffer damages in the foreseeable future. Plaintiff is informed and
12 believes, and based thereon alleges, that Defendants’ conduct against Plaintiff was done
13 with an intent to cause injury to the Plaintiff. As a consequence of the aforesaid oppressive,
14 malicious, and despicable conduct, Plaintiff is entitled to an award of punitive damages in a
15 sum to be shown according to proof pursuant to California Government Code §§ 12965,
16 12970.
17 39. Plaintiff has incurred and continues to incur legal expenses and attorney fees
18 which he is entitled to recover pursuant to California Government Code § 12965.
19
20 THIRD CAUSE OF ACTION
21 Retaliation in Violation of FEHA
22 (Against AUTOMOTIVE TESTING and DOES 1-10)
23 40. Plaintiff incorporates by reference and realleges as if fully stated herein the
24 allegations set out above in the preceding paragraphs.
25 41. Plaintiff engaged in protected activities by complaining about sexual
26 harassment. Defendant, acting at least partially in direct retaliation for Plaintiff engaging in
27 these protected activities, as described immediately above, retaliated against Plaintiff by
28 terminating him.
8 COMPLAINT FOR DAMAGES
1 42. As a direct and proximate result of Defendant’s conduct, Plaintiff has
2 sustained and continues to suffer severe and serious emotional distress, including, but not
3 limited to, emotional trauma, physical manifestations of emotional distress, personal
4 injuries, pain and suffering, personal inconvenience, sickness and illness, all to Plaintiff’s
5 damages in an amount to be shown according to proof.
6 43. As a direct and proximate result of Defendant’s conduct, Plaintiff has suffered
7 and continues to suffer actual damages, including losses in income, earnings, and other
8 employment benefits, the exact amount of which is not yet known and to be shown
9 according to proof.
10 44. The conduct of Defendants in retaliating against Plaintiff because he engaged
11 in protected activities, as described above, subjected Plaintiff to cruel and unjust hardship in
12 conscious disregard of Plaintiff’s rights, as it was anticipated by Defendants that Plaintiff
13 would suffer damages in the foreseeable future. Plaintiff is informed and believes, and
14 based thereon alleges, that Defendant’s conduct against Plaintiff was done with an intent to
15 cause injury to the Plaintiff. As a consequence of the aforesaid oppressive, malicious, and
16 despicable conduct, Plaintiff is entitled to an award of punitive damages in a sum to be
17 shown according to proof pursuant to California Government Code §§ 12965 & 12970.
18 45. Plaintiff has incurred and continues to incur legal expenses and attorneys’
19 fees which he is entitled to recover pursuant to California Government Code § 12965.
20
21 FOURTH CAUSE OF ACTION
22 Wrongful Termination in Violation of Public Policy
23 (Against AUTOMOTIVE TESTING and DOES 1-10)
24 46. Plaintiff incorporates by reference and realleges as if fully stated herein the
25 allegations set out above in the preceding paragraphs.
26 47. Plaintiff alleges that he was terminated for complaining about sexual
27 harassment and retaliated against for same. There are public policies in favor of protecting
28 employees who complain about illegal business practices. These policies were well
9 COMPLAINT FOR DAMAGES
1 established at the time of the retaliation against Plaintiff. Defendants retaliated against
2 Plaintiff in violation of said public policies as described above.
3 48. Such wrongful termination was wrongful, tortious, illegal and in violation of
4 public policy. Defendant had a duty to conduct its affairs in compliance with public policy,
5 including public policy as reflected under the laws of California and its refusal to do so
6 seriously harmed the plaintiff and the public at large. Plaintiff was discharged in sharp
7 derogation of substantial public policies that impose a legal duty on employers to allow its
8 employees to assert their legal right to express such violations.
9 49. By the aforesaid acts and conduct of Defendant, Plaintiff has been directly
10 and legally caused to suffer actual damages including, but not limited to, loss of earning and
11 future earning capacity, attorneys' fees and other pecuniary loss not presently ascertained
12 for which Plaintiff will seek leave of court to amend when ascertained.
13 50. As a direct and legal result of the acts and conduct of Defendant, as more
14 fully noted above, Plaintiff has been caused to, and did, suffer and continues to suffer
15 severe and permanent emotional and mental distress. The exact nature and extent of said
16 injuries is presently unknown to Plaintiff, who will pray leave of court to assert the same
17 when they are ascertained.
18 51. The aforementioned acts of Defendant were wilful, wanton, malicious,
19 intentional, oppressive and despicable and were done in wilful and conscious disregard of
20 the rights, welfare and safety of Plaintiff, and were done by managerial employees of
21 Defendant and thereby justify the awarding of punitive and exemplary damages in an
22 amount to be determined at the time of trial.
23 EIGHTH CAUSE OF ACTION
24 RETALIATION AND WRONGFUL TERMINATION IN
25 VIOLATION OF LABOR CODE § 1102.5
26 (Against AUTOMOTIVE TESTING and DOES 1 through 10)
27 52. As a separate and distinct cause of action, Plaintiff complains and realleges all
28 the allegations contained in this complaint, and incorporates them by reference into this
10 COMPLAINT FOR DAMAGES
1 cause of action as though fully set forth herein, excepting those allegations which are
2 inconsistent with this cause of action.
3 53. At all times herein mentioned, California Labor Code §§ 1102.5 et seq. were in
4 full force and effect and were binding on Defendants.
5 54. .Under California Labor Code § 1102.5 (a), it is unlawful for any employer, or
6 any person acting on behalf of the employer, to “make, adopt, or enforce any rule,
7 regulation, or policy preventing an employee from disclosing information to a government or
8 law enforcement agency, to a person with authority over the employee, or to another
9 employee who has authority to investigate, discover, or correct the violation or
10 noncompliance, or from providing information to, or testifying before, any public body
11 conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to
12 believe that the information discloses a violation of state or federal statute, or a violation of
13 or noncompliance with a local, state, or federal rule or regulation, regardless of whether
14 disclosing the information is part of the employee’s job duties.”
15 55. Under California Labor Code § 1102.5 (b), “an employer, or any person acting
16 on behalf of the employer, shall not retaliate against an employee for disclosing information,
17 or because the employer believes that the employee disclosed or may disclose information,
18 to a government or law enforcement agency, to a person with authority over the employee
19 or another employee who has the authority to investigate, discover, or correct the violation
20 or noncompliance, or for providing information to, or testifying before, any public body
21 conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to
22 believe that the information discloses a violation of state or federal statute, or a violation of
23 or noncompliance with a local, state, or federal rule or regulation, regardless
24 56. At all time herein mentioned, the FEHA and California Government Code §
25 12940 et seq. were in full force and effect and were binding on Defendant. Acting under the
26 reasonable belief Plaintiff that Defendant was in violation of the FEHA and California
27 Government Code § 12940 et seq, among other potential civil laws and statutes, Plaintiff
28 continued to complain of the harassment and retaliation he was facing. When Plaintiff
11 COMPLAINT FOR DAMAGES
1 complained to Johnson directly about WARE’S harassment and retaliation, and therefore,
2 violate California laws, Johnson and WARE retaliated against Plaintiff, as described above,
3 including his eventual wrongful termination.
4 57. As a direct, legal and/or proximate result of the aforesaid acts of Defendants,
5 Plaintiff has suffered actual, consequential and incidental financial losses, including without
6 limitation, loss of income, earnings, salary and benefits, and the intangible loss of
7 employment related opportunities in his field and damage to his professional reputation, all
8 in an amount subject to proof at the time of trial. Plaintiff also claims such amounts as
9 damages pursuant to Civil Code §§ 3287, 3288 and/or any other provisions of law
10 providing for prejudgment interest.
11 58. As a direct, legal and/or proximate result of Defendant’s conduct, Plaintiff has
12 sustained and continues to suffer severe and ongoing emotional and physical injury, related
13 emotional trauma and physical manifestations of the same, pain, suffering, personal
14 inconvenience, personal injury, sickness and illness, etc. all to Plaintiff’s damages in an
15 amount to be shown according to proof.
16 59. The conduct of Defendants in retaliating against Plaintiff and wrongfully
17 terminated Plaintiff subjected Plaintiff to cruel and unjust hardship in conscious disregard of
18 Plaintiff’s rights, as it was anticipated by Defendants that Plaintiff would suffer damages in
19 the foreseeable future. Plaintiff is informed and believes, and based thereon alleges, that
20 Defendants’ conduct against Plaintiff was done with an intent to cause injury to Plaintiff.
21 Moreover, the malicious, fraudulent and/or oppressive conduct was engaged in, authorized
22 or ratified by officers, directors or managing agents of the corporation and/or was the result
23 of the application of unlawful, malicious or oppressive policies and procedures. As a
24 consequence of the aforesaid oppressive, malicious, and despicable conduct, Plaintiff is
25 entitled to an award of punitive damages in a sum to be shown according to proof at trial.
26 60. As a proximate result of the wrongful acts of Defendants, Plaintiff has been
27 forced to hire attorneys to prosecute his claims herein, and has incurred and is expected to
28
12 COMPLAINT FOR DAMAGES
1 continue to incur attorneys’ fees and costs in connection therewith. As a result, pursuant to
2 Labor Code § 1102.5(j), Plaintiff is entitled to recover attorneys’ fees and costs.
3
4 REQUEST FOR JURY TRIAL
5 Plaintiff requests a trial by jury.
6 PRAYER FOR RELIEF
7 WHEREFORE, Plaintiff prays for judgment as follows:
8 1. For general damages, according to proof;
9 2. For special damages, according to proof;
10 3. For consequential and incidental damages, according to proof;
11 4. For economic damages, including loss of past and/or future earnings and/or
12 benefits, according to proof;
13 5. For past and/or future non-economic damages, including emotional distress,
14 physical injury, pain and suffering, etc., according to proof
15 6. For punitive and/or exemplary damages, according to proof;
16 7. For attorneys’ fees, according to proof;
17 8. For prejudgment interest, according to proof;
18 9. For costs of suit incurred herein;
19 10. For experts’ costs and fees incurred herein; and
20 11. For such other and further relief as the Court may deem just and proper.
21
22 Dated: March 13, 2024
23
24
JENNIFER S. BASKARON, ESQ.
25 PERONA, LANGER, BECK & HARRISON
A Professional Corporation
26 Attorneys for Plaintiff, Javier Martinez
27
28
13 COMPLAINT FOR DAMAGES
Preview
1 TODD H. HARRISON, ESQ (SBN 230542) [SPACE BELOW FOR COURT USE ONLY] BRETT FERGUSON, ESQ. (SBN 281519) 2 JENNIFER S. BASKARON, ESQ. (SBN 319434) PERONA, LANGER, BECK & HARRISON 3 A Professional Corporation 3925 Atlantic Avenue 4 Long Beach, California 90807-3501 (562) 426-6155 Fax (562) 490-9823 5 Attorneys for Plaintiff, Javier Martinez 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF KERN 10 11 JAVIER MARTINEZ, an Individual, Case Number: 12 Plaintiff, COMPLAINT FOR: 13 vs. (1) Sex Harassment in Violation of 14 FEHA; AUTOMOTIVE TESTING AND 15 DEVELOPMENT SERVICES, INC., a (2) Failure to Take All Reasonable California Corporation; ROSE WARE, an Steps to Prevent Harassment in 16 Individual; and DOES 1 through 10, Violation of Government Code Inclusive, §12940(k) et seq.; 17 Defendants. (3) Retaliation in Violation of FEHA; 18 (4) Wrongful Termination in Violation 19 of Public Policy and; 20 (5) Retaliation and Wrongful Termination in Violation of Labor 21 Code Section 1102.5 22 Jury Trial Demanded 23 24 25 Plaintiff, Javier Martinez, alleges as follows: 26 /// 27 /// 28 COMPLAINT FOR DAMAGES 1 JURISDICTION AND VENUE 2 1. This Court has jurisdiction over this action pursuant to California Constitution 3 Article VI, § 10, which grants the Superior Court "original jurisdiction in all causes except 4 those given by statute to other courts." The statutes under which this action is brought do 5 not specify any other basis for jurisdiction. 6 2. Plaintiff has exhausted his administrative remedies by the timely request of a 7 Right-to-Sue notice from the Civil Rights Department within three years of the events 8 alleged herein. 9 3. This Court has jurisdiction over all Defendants because, based on information 10 and belief, each party is either a citizen of California, has sufficient minimum contacts in 11 California, or otherwise intentionally avails itself of the California market so as to render the 12 exercise of jurisdiction over it by the California courts consistent with traditional notions of 13 fair play and substantial justice. 14 4. Venue is proper in this Court because, upon inf ormation and belief, one or 15 more of the named Defendants reside, transact business, or have offices in this county and 16 the acts and omissions alleged herein took place in this county. 17 18 THE PARTIES 19 5. Plaintiff, JAVIER MARTINEZ (hereinafter “Plaintiff”), was at all relevant times 20 employed in Kern County, in the State of California. 21 6. Defendant, AUTOMOTIVE TESTING AND DEVELOPMENT SERVICES, INC. 22 (hereinafter referred to as “ AUTOMOTIVE TESTING” and/or “Defendant”), a California 23 corporation, is an employer whose employees are engaged in commerce throughout this 24 county and the State of California. 25 7. Defendant, ROSE WARE, (hereinafter “WARE” or collectively “Defendants”), 26 was and is, upon information and belief, a resident of Kern County, in the State of 27 California. 28 /// 2 COMPLAINT FOR DAMAGES 1 8. Plaintiff is unaware of the true names or capacities of the Defendants sued 2 herein under the fictitious names DOES 1-10, but prays for leave to amend and serve such 3 fictitiously named Defendants pursuant to California Code of Civil Procedure § 474, once 4 their names and capacities become known. 5 9. Plaintiff is informed and believes, and thereon alleges, that DOES 1-10 are the 6 partners, joint ventures, parent companies, owners, shareholders or managers or 7 employees of Defendants and therefore, were acting on behalf of Defendants. 8 10. AUTOMOTIVE TESTING, WARE, and DOES 1-10 will hereafter be 9 collectively referred to as “Defendants.” 10 11. Plaintiff is informed and believes, and thereon alleges, that each of said 11 Defendants are in some manner intentionally, negligently, or otherwise responsible for the 12 acts, occurrences or transactions alleged herein. 13 12. Plaintiff is informed and believes, and thereon alleges, that each and all of the 14 acts and omissions alleged herein were performed by, or are attributable to, all Defendants, 15 each acting as the agent for the other, with legal authority to act on the other’s behalf. The 16 acts of Defendants were in accordance with, and represent the official policy of Defendants. 17 13. Plaintiff is informed and believes, and thereon alleges, that at all times 18 material hereto and mentioned herein, each Defendant sued herein (both named and DOE 19 Defendants) was the agent, servant, employer, joint venturer, joint employer, contractor, 20 contractee, partner, division owner, subsidiary, division, alias, and/or alter ego with and/or of 21 each of the remaining Defendants and was, at all times, acting within the purpose and 22 scope of such agency, servitude, employment, contract, ownership, subsidiary, alias and/or 23 alter ego and with the authority, consent, approval, control, influence and ratification of each 24 remaining Defendant sued herein. 25 14. At all times herein mentioned, Defendants, and each of them, ratified each 26 and every act or omission complained of herein. At all times herein mentioned, the 27 Defendants, and each of them, aided and abetted the acts and om issions of each and all 28 the other Defendants in proximately causing the damages herein alleged. 3 COMPLAINT FOR DAMAGES 1 GENERAL ALLEGATIONS 2 15. Defendant is a full service automotive testing laboratory located in Ontario, 3 California. Plaintiff worked for Defendant, at its California City location, from in or around 4 October 2022 to on or about May 24, 2023 as a Professional Driver. Plaintiff’s duties 5 included, but were not limited to, test driving the vehicles on an ability track and logging any 6 issues with the vehicle discovered in the test drive. 7 16. Plaintiff is a 25 year old male. During his employment, his night shift 8 supervisor, WARE, sexually harassed Plaintiff. In or around March 2023, W ARE grabbed 9 Plaintiff’s arm while trying to tell him how to perform a specific test. She grabbed his arm, as 10 if she was attempting to caress him and make a pass at him. Plaintiff felt very 11 uncomfortable of the inappropriate touching and pulled his arm away right away. 12 Regardless, WARE did not care how she made him feel, as she went on to caress his chest 13 and then his shoulder, in a flirtatious manner. WARE would also look at Plaintiff up and 14 down in a sexual manner. At no point did Plaintiff consent to the inappropriate touching nor 15 did he want to deal with her sexual harassment. 16 17. Approximately two days after the sexual harassment, Plaintiff sent an email 17 to his manager Jason Johnson (“Johnson”). In his email, he complained that he was 18 uncomfortable with her conduct and that it violated Defendant’s sexual harassment policy. 19 He mentioned that he had a witness to the sexual harassment and he requested his 20 complaint be investigated. He further made clear that he did not feel comfortable working 21 alone with her and he was worried about being retaliated against for complaining. 22 18. Approximately two days after he sent his email to Johnson, Johnson called 23 Plaintiff into his office to have him write out a statement regarding the sexual harassment. 24 Plaintiff in fact did, including documenting who witnessed the harassment. Plaintiff asked 25 Johnson for a copy of the statement, but he refused to give him one. Along with the refusal 26 to give him a copy, it became clear that Johnson told others about Plaintif f’s complaint. 27 19. After his complaint, WARE became relentlessly retaliating against Plaintiff and 28 4 COMPLAINT FOR DAMAGES 1 continued her sexual harassment. WARE would complain if he didn’t take his break at a 2 certain time, though there was no requirement of a specific time for his break, she would 3 block him from exiting the building and would not move till he heard what she wanted to say, 4 standing too close to Plaintiff, again making him feel violated. WARE would follow him 5 around the tracks for no reason, making him feel that he had no personal space. She also 6 complained about his performance when not justified, and would even make comments like: 7 “we better be careful because people like to make complaints around here.” 8 20. Plaintiff’s work environment due to WARE’S retaliation and sexual harassment 9 became unbearable. As a result, Plaintiff complained to Johnson once again. Johnson did 10 nothing to address this complaint. Moreover, he began noticing that even Johnson was 11 trying to avoid him. It is clear Defendant made no efforts to investigate his complaints, as 12 the conduct continued and became even worse. WARE began taking her breaks at the 13 same time of Plaintiff or would even extend her breaks so that she could still be on break 14 when Plaintiff took his, another form of sexual harassment. She intentionally made Plaintiff 15 continue to feel uncomfortable and retaliated against. 16 21. On or around May 17, 2023, WARE approached Plaintiff while he was on 17 break and tried to have a conversation with him about matters unrelated to work. Plaintiff 18 tried to get away from her, but once again she blocked his exit, making him feel targeted 19 and again sexually harassed. She knew that Plaintiff would not attempt to move her out of 20 the way, so she took any opportunity to make him feel uncomfortable. 21 22. Plaintiff then sent another email to Johnson explaining how uncomfortable he 22 was. He even made clear that he wasn’t complaining about her being his lead (trying to be 23 reasonable and have his complaints addressed) but he took issue with her putting him in 24 uncomfortable situations and making him feel trapped. He notified Johnson she was making 25 a point of taking breaks with him to further harass him. 26 23. Once again Johnson did not address Plaintiff’s complaints. Instead, in 27 response, Plaintiff was terminated on or around May 24, 2023. The timing of his last 28 complaint and when he was terminated demonstrates blatant retaliation. Moreover, 5 COMPLAINT FOR DAMAGES 1 Defendant refused to give Plaintiff any reason for his termination. Plaintiff not only believes 2 his termination had to do with his complaints, but because he had heard from other 3 employees that WARE was doing what she could to have him fired. 4 24. At all times, Defendants’ conduct, as described above, was enacted 5 maliciously and in total disregard and oppression of Plaintiff’s rights and welfare. As a result 6 of these circumstances, Plaintiff has been damaged economically by the loss of both his 7 current and future employment with Defendants, and has also been damaged emotionally 8 through Defendants’ unlawful conduct. The full extent of Plaintiff’s damages will be subject 9 to a matter of proof at trial. 10 11 FIRST CAUSE OF ACTION 12 Sex Harassment in Violation of FEHA 13 (Against All Defendants and DOES 1-10) 14 25. Plaintiff incorporates by reference and realleges as if fully stated herein the 15 allegations set out above in this complaint. 16 26. At all times mentioned in this complaint, California’s Fair Employment and 17 Housing Act (“FEHA”), was in full force and effect and was binding on Defendants. 18 Pursuant to FEHA, an employer is prohibited from harassing and/or discriminating against 19 an employee on the basis of sex. California Government Code § 12940 et seq. 20 27. The harassing acts of Defendants mentioned in this Complaint against Plaintiff 21 were unwelcome and were committed by Defendants in their capacity as Defendants’ 22 employees, agents or persons under Defendants’ control and were committed within the 23 scope of their employment. 24 28. Defendants’ conduct as mentioned in this Complaint, subjected Plaintiff to 25 sexual harassment and intimidation all of which created an abusive and hostile 26 environment. 27 29. Plaintiff complained numerous times and Defendants failed to take any 28 corrective action to end those conditions. 6 COMPLAINT FOR DAMAGES 1 30. Defendants knew or should have known of the sexual harassment and 2 Defendants failed to exercise reasonable care to prevent and promptly correct any future 3 harassing behavior against Plaintiff. Therefore, Defendants, and each of them, are 4 responsible for their employees’ conduct. 5 31. As a direct and proximate result of Defendants, and each of their actions, 6 Plaintiff has suffered severe and serious emotional distress, all to Plaintiff’s damage in a 7 sum within the jurisdiction of this Court and to be shown according to proof. 8 32. As a direct and proximate result of Defendants’ conduct and failure to act, 9 Plaintiff has suffered and continues to suffer actual damages, including losses in income, 10 earnings, and other employment benefits, the exact amount of which is not yet known and 11 to be shown according to proof. 12 33. The conduct of the Defendants in sexually harassing Plaintiff, subjected 13 Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff’s rights, as it was 14 anticipated by Defendants that Plaintiff would be subjected to a hostile and oppressive 15 environment. Plaintiff is informed and believes, and based thereon alleges, that the sexual 16 harassment alleged in this Complaint conducted by Defendants, and each of them, was 17 done with an intent to cause injury to the Plaintiff. As a consequence of the aforesaid 18 oppressive, malicious, and despicable conduct, Plaintiff is entitled to an award of punitive 19 damages in a sum to be shown according to proof. 20 34. Plaintiff has incurred and continues to incur legal expenses and attorney fees 21 pursuant to California Government Code § 12965. 22 23 SECOND CAUSE OF ACTION 24 Failure to Take All Reasonable Steps to Prevent Harassment 25 in Violation of Government Code §12940(k) et seq. 26 (Against AUTOMOTIVE TESTING and DOES 1-10) 27 35. Plaintiff incorporates by reference and realleges as if fully stated herein the 28 allegations set out above in the preceding paragraphs. 7 COMPLAINT FOR DAMAGES 1 36. Defendants failed to take immediate and appropriate corrective action to 2 prevent and remedy the harassment to which Plaintiff was subjected to. Specifically, 3 Defendants failed to properly investigate and remedy any claims of sexual harassment 4 committed by WARE. Defendants did not take action and ratified his behavior. 5 37. As a direct and proximate result of Defendants’ conduct, Plaintiff has 6 sustained and continues to suffer severe and serious emotional distress, all to Plaintiff’s 7 damage in an amount to be shown according to proof. 8 38. The conduct of Defendants in harassing Plaintiff and retaliating against him 9 because of his opposition to unlawful activity, subjected Plaintiff to cruel and unjust hardship 10 in conscious disregard of Plaintiff’s rights, as it was anticipated by Defendants, and each of 11 them, that Plaintiff would suffer damages in the foreseeable future. Plaintiff is informed and 12 believes, and based thereon alleges, that Defendants’ conduct against Plaintiff was done 13 with an intent to cause injury to the Plaintiff. As a consequence of the aforesaid oppressive, 14 malicious, and despicable conduct, Plaintiff is entitled to an award of punitive damages in a 15 sum to be shown according to proof pursuant to California Government Code §§ 12965, 16 12970. 17 39. Plaintiff has incurred and continues to incur legal expenses and attorney fees 18 which he is entitled to recover pursuant to California Government Code § 12965. 19 20 THIRD CAUSE OF ACTION 21 Retaliation in Violation of FEHA 22 (Against AUTOMOTIVE TESTING and DOES 1-10) 23 40. Plaintiff incorporates by reference and realleges as if fully stated herein the 24 allegations set out above in the preceding paragraphs. 25 41. Plaintiff engaged in protected activities by complaining about sexual 26 harassment. Defendant, acting at least partially in direct retaliation for Plaintiff engaging in 27 these protected activities, as described immediately above, retaliated against Plaintiff by 28 terminating him. 8 COMPLAINT FOR DAMAGES 1 42. As a direct and proximate result of Defendant’s conduct, Plaintiff has 2 sustained and continues to suffer severe and serious emotional distress, including, but not 3 limited to, emotional trauma, physical manifestations of emotional distress, personal 4 injuries, pain and suffering, personal inconvenience, sickness and illness, all to Plaintiff’s 5 damages in an amount to be shown according to proof. 6 43. As a direct and proximate result of Defendant’s conduct, Plaintiff has suffered 7 and continues to suffer actual damages, including losses in income, earnings, and other 8 employment benefits, the exact amount of which is not yet known and to be shown 9 according to proof. 10 44. The conduct of Defendants in retaliating against Plaintiff because he engaged 11 in protected activities, as described above, subjected Plaintiff to cruel and unjust hardship in 12 conscious disregard of Plaintiff’s rights, as it was anticipated by Defendants that Plaintiff 13 would suffer damages in the foreseeable future. Plaintiff is informed and believes, and 14 based thereon alleges, that Defendant’s conduct against Plaintiff was done with an intent to 15 cause injury to the Plaintiff. As a consequence of the aforesaid oppressive, malicious, and 16 despicable conduct, Plaintiff is entitled to an award of punitive damages in a sum to be 17 shown according to proof pursuant to California Government Code §§ 12965 & 12970. 18 45. Plaintiff has incurred and continues to incur legal expenses and attorneys’ 19 fees which he is entitled to recover pursuant to California Government Code § 12965. 20 21 FOURTH CAUSE OF ACTION 22 Wrongful Termination in Violation of Public Policy 23 (Against AUTOMOTIVE TESTING and DOES 1-10) 24 46. Plaintiff incorporates by reference and realleges as if fully stated herein the 25 allegations set out above in the preceding paragraphs. 26 47. Plaintiff alleges that he was terminated for complaining about sexual 27 harassment and retaliated against for same. There are public policies in favor of protecting 28 employees who complain about illegal business practices. These policies were well 9 COMPLAINT FOR DAMAGES 1 established at the time of the retaliation against Plaintiff. Defendants retaliated against 2 Plaintiff in violation of said public policies as described above. 3 48. Such wrongful termination was wrongful, tortious, illegal and in violation of 4 public policy. Defendant had a duty to conduct its affairs in compliance with public policy, 5 including public policy as reflected under the laws of California and its refusal to do so 6 seriously harmed the plaintiff and the public at large. Plaintiff was discharged in sharp 7 derogation of substantial public policies that impose a legal duty on employers to allow its 8 employees to assert their legal right to express such violations. 9 49. By the aforesaid acts and conduct of Defendant, Plaintiff has been directly 10 and legally caused to suffer actual damages including, but not limited to, loss of earning and 11 future earning capacity, attorneys' fees and other pecuniary loss not presently ascertained 12 for which Plaintiff will seek leave of court to amend when ascertained. 13 50. As a direct and legal result of the acts and conduct of Defendant, as more 14 fully noted above, Plaintiff has been caused to, and did, suffer and continues to suffer 15 severe and permanent emotional and mental distress. The exact nature and extent of said 16 injuries is presently unknown to Plaintiff, who will pray leave of court to assert the same 17 when they are ascertained. 18 51. The aforementioned acts of Defendant were wilful, wanton, malicious, 19 intentional, oppressive and despicable and were done in wilful and conscious disregard of 20 the rights, welfare and safety of Plaintiff, and were done by managerial employees of 21 Defendant and thereby justify the awarding of punitive and exemplary damages in an 22 amount to be determined at the time of trial. 23 EIGHTH CAUSE OF ACTION 24 RETALIATION AND WRONGFUL TERMINATION IN 25 VIOLATION OF LABOR CODE § 1102.5 26 (Against AUTOMOTIVE TESTING and DOES 1 through 10) 27 52. As a separate and distinct cause of action, Plaintiff complains and realleges all 28 the allegations contained in this complaint, and incorporates them by reference into this 10 COMPLAINT FOR DAMAGES 1 cause of action as though fully set forth herein, excepting those allegations which are 2 inconsistent with this cause of action. 3 53. At all times herein mentioned, California Labor Code §§ 1102.5 et seq. were in 4 full force and effect and were binding on Defendants. 5 54. .Under California Labor Code § 1102.5 (a), it is unlawful for any employer, or 6 any person acting on behalf of the employer, to “make, adopt, or enforce any rule, 7 regulation, or policy preventing an employee from disclosing information to a government or 8 law enforcement agency, to a person with authority over the employee, or to another 9 employee who has authority to investigate, discover, or correct the violation or 10 noncompliance, or from providing information to, or testifying before, any public body 11 conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to 12 believe that the information discloses a violation of state or federal statute, or a violation of 13 or noncompliance with a local, state, or federal rule or regulation, regardless of whether 14 disclosing the information is part of the employee’s job duties.” 15 55. Under California Labor Code § 1102.5 (b), “an employer, or any person acting 16 on behalf of the employer, shall not retaliate against an employee for disclosing information, 17 or because the employer believes that the employee disclosed or may disclose information, 18 to a government or law enforcement agency, to a person with authority over the employee 19 or another employee who has the authority to investigate, discover, or correct the violation 20 or noncompliance, or for providing information to, or testifying before, any public body 21 conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to 22 believe that the information discloses a violation of state or federal statute, or a violation of 23 or noncompliance with a local, state, or federal rule or regulation, regardless 24 56. At all time herein mentioned, the FEHA and California Government Code § 25 12940 et seq. were in full force and effect and were binding on Defendant. Acting under the 26 reasonable belief Plaintiff that Defendant was in violation of the FEHA and California 27 Government Code § 12940 et seq, among other potential civil laws and statutes, Plaintiff 28 continued to complain of the harassment and retaliation he was facing. When Plaintiff 11 COMPLAINT FOR DAMAGES 1 complained to Johnson directly about WARE’S harassment and retaliation, and therefore, 2 violate California laws, Johnson and WARE retaliated against Plaintiff, as described above, 3 including his eventual wrongful termination. 4 57. As a direct, legal and/or proximate result of the aforesaid acts of Defendants, 5 Plaintiff has suffered actual, consequential and incidental financial losses, including without 6 limitation, loss of income, earnings, salary and benefits, and the intangible loss of 7 employment related opportunities in his field and damage to his professional reputation, all 8 in an amount subject to proof at the time of trial. Plaintiff also claims such amounts as 9 damages pursuant to Civil Code §§ 3287, 3288 and/or any other provisions of law 10 providing for prejudgment interest. 11 58. As a direct, legal and/or proximate result of Defendant’s conduct, Plaintiff has 12 sustained and continues to suffer severe and ongoing emotional and physical injury, related 13 emotional trauma and physical manifestations of the same, pain, suffering, personal 14 inconvenience, personal injury, sickness and illness, etc. all to Plaintiff’s damages in an 15 amount to be shown according to proof. 16 59. The conduct of Defendants in retaliating against Plaintiff and wrongfully 17 terminated Plaintiff subjected Plaintiff to cruel and unjust hardship in conscious disregard of 18 Plaintiff’s rights, as it was anticipated by Defendants that Plaintiff would suffer damages in 19 the foreseeable future. Plaintiff is informed and believes, and based thereon alleges, that 20 Defendants’ conduct against Plaintiff was done with an intent to cause injury to Plaintiff. 21 Moreover, the malicious, fraudulent and/or oppressive conduct was engaged in, authorized 22 or ratified by officers, directors or managing agents of the corporation and/or was the result 23 of the application of unlawful, malicious or oppressive policies and procedures. As a 24 consequence of the aforesaid oppressive, malicious, and despicable conduct, Plaintiff is 25 entitled to an award of punitive damages in a sum to be shown according to proof at trial. 26 60. As a proximate result of the wrongful acts of Defendants, Plaintiff has been 27 forced to hire attorneys to prosecute his claims herein, and has incurred and is expected to 28 12 COMPLAINT FOR DAMAGES 1 continue to incur attorneys’ fees and costs in connection therewith. As a result, pursuant to 2 Labor Code § 1102.5(j), Plaintiff is entitled to recover attorneys’ fees and costs. 3 4 REQUEST FOR JURY TRIAL 5 Plaintiff requests a trial by jury. 6 PRAYER FOR RELIEF 7 WHEREFORE, Plaintiff prays for judgment as follows: 8 1. For general damages, according to proof; 9 2. For special damages, according to proof; 10 3. For consequential and incidental damages, according to proof; 11 4. For economic damages, including loss of past and/or future earnings and/or 12 benefits, according to proof; 13 5. For past and/or future non-economic damages, including emotional distress, 14 physical injury, pain and suffering, etc., according to proof 15 6. For punitive and/or exemplary damages, according to proof; 16 7. For attorneys’ fees, according to proof; 17 8. For prejudgment interest, according to proof; 18 9. For costs of suit incurred herein; 19 10. For experts’ costs and fees incurred herein; and 20 11. For such other and further relief as the Court may deem just and proper. 21 22 Dated: March 13, 2024 23 24 JENNIFER S. BASKARON, ESQ. 25 PERONA, LANGER, BECK & HARRISON A Professional Corporation 26 Attorneys for Plaintiff, Javier Martinez 27 28 13 COMPLAINT FOR DAMAGES