Preview
) 937-3905
5
2.
Orinda, CA 94563
Tel: (925) 937-3900
VENARDI ZURADA LLP
Fax: (9:
25 Orinda Way, Suite 250
Mark L. Venardi (SBN 173140)
Martin Zurada (SBN 218235)
Jamie Retmier (SBN 308060) ELECTRONICALLY
VENARDI ZURADA LLP FILED
25 Orinda Way, Suite 250 Superior Court of California,
Orinda, CA 94563 County of San Francisco
Telephone: (925) 937-3900 09/13/2018
Facsimile: (925) 937-3905 oa of 42 Court
BY: VANESSA WU
Attorneys for Plaintiff Deputy Clerk
RAMESH SHRESTHA aka RAY SHRESTHA
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
RAMESH SHRESTHA aka RAY CASE NO.: CGC-16-553387
SHRESTHA, an individual, PLAINTIFF'S SEPARATE STATEMENT
OF DISPUTED AND UNDISPUTED
Plaintiff, MATERIAL FACTS IN SUPPORT OF
PLAINTIFF’S OPPOSITION TO
ee RESPONDENTS’ MOTION FOR
SUMMARY ADJUDICATION
HOTEL SUNRISE, INC., a California
corporation; HOTEL SUNRISE, LLC, a
California limited liability company; KIRIT Date: September 27, 2018
KUMAL PATEL aka KIRIT KUMAR pone aa a.m.
PATEL aka KIRITKUMAR PATEL aka KEN ep: 2
PATEL, an individual; SHAKUNTALAL Judge: Hon. Harold E. Kahn
PATEL aka SHAKUNTIA PATEL aka
SHAKUNTLA PATEL aka SKAKUNTA
PATEL aka NINA PATEL, an individual; and
DOES 1-100, inclusive,
Reservation No. 06280927-14
Defendants.
Plaintiff RAMESH SHRESTHA aka RAY SHRESTHA submits the following Separate
Statement of Material Disputed and Undisputed Facts in Support of the Opposition to Defendants’
Motion for Summary Adjudication pursuant to Code of Civil Procedure, section 437c and
California Rules of Court, Rule 3.1350. The facts and evidence set forth below establish at least
Slits!
PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF
PLAINTIFF’S OPPOSITION TO RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION
CASE NO. CGC-16-553387VENARDI ZURADA LLP
) 937-3905
5
Orinda, CA 94563
2.
Tel: (925) 937-3900
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one material fact in dispute and therefore mandates denial of Defendants’ Motion for Summary
Judgment.
FACTS RELATED TO DEFENDANTS’ JOINT EMPLOYMENT OF PLAINTIFF
NO.
PLAINTIFF’S DISPUTED AND UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
RESPONDENTS’
RESPONSE AND
SUPPORTING EVIDENCE
Defendants admit that Hotel Sunrise, Inc. is one of
Plaintiff's employers. Defendant Ken Patel expressly
admitted under oath at this deposition that he and
Defendant Meena Patel were also Ray’s employers.
[Defendants’ Separate Statement 2-3; Ken Patel
Deposition (“Ken Patel Depo”), page 208, lines 3-4,
lines 20-25, attached as Exhibit 2 to the Declaration
of Jamie V. Retmier (“Retmier Decl.”)]
Ramesh Shrestha aka Ray Shrestha (“Ray” or
“Plaintiff’) worked for Defendant Hotel Sunrise, Inc.,
Defendant Kiritkumar aka Ken Patel (“Defendant Ken
Patel’”’), Defendant Shakuntla aka Meena Patel
(“Defendant Meena Patel”), and Defendant Ketan
Patel, from approximately September 2007 through
September 2011, and again from May 2012 through
August 2, 2016.
[Ray Shrestha Deposition (“Shrestha Depo.”), page
142, lines 8-16, 23-24, attached as Exhibit 1 to the
Retmier Decl.; Defendants Separate Statement 7].
Defendant Ken Patel initially hired Ray to work as a
night clerk at Hotel Sunrise (the “Hotel”), and then
promoted him to “Resident Manager” approximately 2
weeks later.
[Shrestha Depo., page 97, lines 19-24, page 100, lines
15-25, page 101, lines1-2., attached as Exhibit 1 to
the Retmier Decl.]
Defendant Ken Patel dictated the terms of Ray’s
employment, his pay, and the terms of his tenancy at
the Hotel.
[Shrestha Depo., page101, lines 3-21, attached as
Exhibit 1 to the Retmier Decl.]
=i2f=|
PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF
PLAINTIFF’S OPPOSITION TO RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION
CASE NO. CGC-16-553387VENARDI ZURADA LLP
) 937-3905
5
Orinda, CA 94563
2.
Tel: (925) 937-3900
25 Orinda Way, Suite 250
Fax: (9:
NO.
PLAINTIFF’S DISPUTED AND UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
RESPONDENTS’
RESPONSE AND
SUPPORTING EVIDENCE
Ray understood that Defendant Ken Patel, Defendant
Meena Patel and Defendant Ketan Patel were his
employers and supervisors at the Hotel.
[Shrestha Depo. at page 97, lines 19-24, page 100,
lines 15-25; page 101, lines 1-2 page 101, lines 3-21;
page 140, lines 20-25; page 141, lines 1-8; page 171,
lines 2-14; page 211, lines 11-25, page 212, pages 1-4;
page 217, lines 6-16; page 218, lines 5-25; page 224,
lines 3-25; page 237, lines 24-25; page 238, lines 3-5;
page 240, lines 12-25; page 241, lines 1-6, 14-22; page
309, lines 18-24; page 310, lines 12-25; page 316, lines
3-8; page 369, lines 4-12; page 403, lines 7-16; page
404, lines 6-9; page 544, lines 10-14,18-25; page 545,
lines 1, 12-13,18-19; page 557, lines 8-25; page 558,
lines 1-2; page 559, lines 2-3; page 560, line 25
through 562, line 23; page 564, lines 2-13; page
592:14-18; page 600:24-25; page 601:1-4, attached as
Exhibit 1 to the Retmier Decl.
Shrestha Declaration, 8, Exhibit 1].
Ray reported Hotel business to Defendant Ken Patel and
Meena Patel, Ray discussed the terms of his
employment, tenancy at the Hotel, and his pay structure
with Defendants Ken and Meena Patel, and Ray
complained to Defendants Ken and Meena Patel about
wage and hour violations and other employment related
issues.
[Shrestha Depo. at page 97, lines 19-24, page 100,
lines 15-25; page 101, lines 1-2 page 101, lines 3-21;
page 140, lines 20-25; page 141, lines 1-8; page 171,
lines 2-14; page 211, lines 11-25, page 212, pages 1-4;
page 217, lines 6-16; page 218, lines 5-25; page 224,
lines 3-25; page 237, lines 24-25; page 238, lines 3-5;
page 240, lines 12-25; page 241, lines 1-6, 14-22; page
309, lines 18-24; page 310, lines 12-25; page 316, lines
3-8; page 369, lines 4-12; page 403, lines 7-16; page
404, lines 6-9; page 544, lines 10-14,18-25; page 545,
lines 1, 12-13,18-19; page 557, lines 8-25; page 558,
lines 1-2; page 559, lines 2-3; page 560, line 25
through 562, line 23; page 564, lines 2-13; page
592:14-18; page 600:24-25; page 601:1-4, attached as
Exhibit 1 to the Retmier Decl.].
=i3t=|
PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF
PLAINTIFF'S OPPOSITION TO RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION
CASE NO. CGC-16-553387VENARDI ZURADA LLP
) 937-3905
5
Orinda, CA 94563
2.
Tel: (925) 937-3900
25 Orinda Way, Suite 250
Fax: (9:
NO.
PLAINTIFF’S DISPUTED AND UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
RESPONDENTS’
RESPONSE AND
SUPPORTING EVIDENCE
Defendant Ketan Patel was also very involved in the
Hotel business and maintained ongoing communication
with Ray, via text or e-mail, related to questions and
issues about the Hotel. Ray also reported Hotel business
to Defendant Ketan Patel, Ray discussed the terms of his
employment, tenancy at the Hotel, and his pay structure
with Defendant Ketan Patel, and Ray complained to
Defendant Ketan Patel about wage and hour violations
and other employment related issues.
[Shrestha Depo., page 140, lines 20-25; page 141,lines
1-8, 4-21; page 171, lines 2-14; page 211, lines 11-25,
page 212, pages 1-4; page 217, lines 6-16; page 218,
lines 5-25; page 224, lines 3-25; page 309, lines 18-24;
page 310, lines 12-25; page 316, lines 3-8; page 369,
lines 4-12; page 403, lines 7-16; page 544, lines 10-
14,18-25; page 545, lines1,12-13,18-19; page 558,
lines 15-16; page, 560, lines 25 — page 562, lines 23;
page 564, lines 2-13; page 600, lines 24-25; page 601,
lines 1-4 attached as Exhibit 1 to the Retmier Decl.
Shrestha Declaration, (8, Exhibit 1].
Defendants Ken Patel and Meena Patel are the owners
of Hotel Sunrise, Inc. and the Hotel.
[DSS#2-3].
Defendant Ken Patel is the President of Hotel Sunrise,
Inc. and Defendant Meena Patel is the Secretary of
Hotel Sunrise, Inc.
[Ken Patel Depo., page 23, lines 6-13 attached as
Exhibit 2 to the Retmier Decl.].
10.
There are no other directors or officers of Hotel Sunrise,
Inc. besides Defendants Ken Patel and Meena Patel.
[Ken Patel Depo., page 22, lines 22-25 attached as
Exhibit 2 to the Retmier Decl.].
il.
Defendant Ken Patel has admitted that he has not looked
at the minute book for Hotel Sunrise, Inc. in years, and
he does not remember when the last company meeting
was, he does not remember if he has seen any notes of
any action by directors or officers of Hotel Sunrise, Inc.,
he does not remember when he last saw any documents
relating to any shareholder actions for Hotel Sunrise,
Inc., and that no one has ever prepared any documents
to reflect the actions of any directors, officers, or
shareholders of Hotel Sunrise, Inc.
-4-
PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF
PLAINTIFF'S OPPOSITION TO RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION
CASE NO. CGC-16-553387VENARDI ZURADA LLP
) 937-3905
5
Orinda, CA 94563
2.
Tel: (925) 937-3900
25 Orinda Way, Suite 250
Fax: (9:
NO.
PLAINTIFF’S DISPUTED AND UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
RESPONDENTS’
RESPONSE AND
SUPPORTING EVIDENCE
[Ken Patel Depo., page 22, lines 16-18; page 23, lines
16-25; page 24, lines 2-11 attached as Exhibit 2 to the
Retmier Decl.].
12.
Defendant Ken Patel dictated Ray’s hours and duties at
the hotel. Between May 2012 and April 1, 2016 Ray
was to work from 10:00 a.m. until midnight, every day,
and he was responsible for essentially each and every
issue that could potentially arise with a tenant of the
Hotel, and Hotel business.
[Ken Patel Depo., page165, lines 3-17; page 44, lines
23 — page 48, lines 2, attached as Exhibit 2 to the
Retmier Decl.].
13.
Defendant Ken Patel dictated Ray’s salary, and
Defendant Ketan Patel also discussed Ray’s salary with
him at the Hotel. Between May 2012 and April 1, 2016
Defendant Ken Patel paid Ray a flat salary between
approximately $2,800 - $3,500 per month, in cash or
sometimes via check. Defendant Ken Patel determined
this rate of pay.
[Ken Patel Depo., page 167, lines 11-15; page 168,
lines 15-21; page 170, lines 4-6; page 193, lines 12-14;
page 194, lines 4-5, attached as Exhibit 2 to the
Retmier Decl.
Shrestha Declaration, (8, Exhibit 1].
14,
Defendants created an Employment Agreement in April
2016 (“the April 2016 Employment Agreement”) in
retaliation for Ray cooperating with an OLSE
investigation. Defendants reduced Ray’s hours, and
pay, and forced his wife to split his 14-hour shift so that
he would work 7-8 hours and Ray’s wife would work 7-
8 hours per shift to avoid paying them overtime. In
reality, Ray still worked the majority of the hours, and
he and Katherine constantly covered for each other for
duties around the Hotel during the 14-hour shift they
were responsible for. Defendants knew that the actual
work-hours were different from the Employment
Agreement but never objected.
Defendants also started deducting $835.49 per month
from Ray’s wages for rent for the Manager’s Dwelling,
which they had not done before April 1, 2016.
[Ken Patel Depo., page 171, lines 14-25; page 172,
lines 1-5, attached as Exhibit 2 to the Retmier Decl.;
-5-
PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF
PLAINTIFF'S OPPOSITION TO RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION
CASE NO. CGC-16-553387VENARDI ZURADA LLP
) 937-3905
5
Orinda, CA 94563
2.
Tel: (925) 937-3900
25 Orinda Way, Suite 250
Fax: (9:
NO.
PLAINTIFF’S DISPUTED AND UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
RESPONDENTS’
RESPONSE AND
SUPPORTING EVIDENCE
Shrestha Depo., page 217, lines 22-25, page 218, lines
1-25; page 532, lines 13-25; page 533, lines 1-7; page
536, lines 11-25; page 537, lines 1-15; page 564, lines
16-25; page 565, lines 1-11, 23-25; page 566, lines 1-
15, attached as Exhibit 1 to the Retmier Decl.;
Katherine Amporias Deposition (“Amporias Depo”),
page 276, lines 12-25, attached as Exhibit 3 to the
Retmier Decl.].
15.
After Ray was presented with and signed the April 2016
Employment Agreement he had a conversation with
Defendant Ketal Patel in which Defendant Ketan Patel
stated to him that “this is what is going to happen, this is
what it is, and this is how it’s going to happen from now
on.” Ray then asked Defendant Ketan Patel for a raise,
and raised the possibility of Ray moving out of the
Hotel and continuing to work at a higher hourly rate, but
then decided to stay at the Hotel because the April 2016
Employment Agreement dictated that his employment
was contingent on his residency at the Hotel.
[Shrestha Depo., page 218, lines 5-25, attached as
Exhibit 1 to the Retmier Decl.].
16.
On the afternoon of August 2, 2016 Defendant Ken
Patel was present at the Hotel and received a call from
Defendant Ketan Patel, informing him of this lawsuit for
wage and hour and habitability claims. Less than 15
minutes later, Defendant Ketan Patel arrived at the
Hotel to help his father confront Ray and his wife about
the lawsuit.
[Ken Patel Depo., page 101, lines 13-19, page 102,
lines 2-3, attached as Exhibit 2 to the Retmier Decl.;
Shrestha Depo., page 246, lines 18-22, attached as
Exhibit 1 to the Retmier Decl.;
Deposition of Ketan Patel, pages 80, lines 3-5, 19-25;
page 81, lines 1-10, attached as Exhibit 4 to the
Retmier Deecl.].
17.
After learning of the lawsuit Defendant Ken Patel was
very upset, complained to Ray’s wife about the lawsuit,
and yelled at Ray “you fucking filed a lawsuit against
me?”
[Shrestha Depo., page 237, lines 24-25; page 238,
lines 3-5, attached as Exhibit 1 to the Retmier Deel.].
-6-
PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF
PLAINTIFF'S OPPOSITION TO RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION
CASE NO. CGC-16-553387VENARDI ZURADA LLP
) 937-3905
5
Orinda, CA 94563
2.
Tel: (925) 937-3900
25 Orinda Way, Suite 250
Fax: (9:
NO.
PLAINTIFF’S DISPUTED AND UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
RESPONDENTS’
RESPONSE AND
SUPPORTING EVIDENCE
18.
Defendant Ken Patel then demanded that Ray withdraw
the lawsuit. When Ray said he would not withdraw the
lawsuit and told Defendant Ken Patel to speak to his
attorneys, Defendant Ken Patel said to Ray, “then in that
case, I will have to fire you.”
[Shrestha Depo., page 240, lines 12-21, attached as
Exhibit 1 to the Retmier Decl.].
19.
Ray then asked Defendant Ken Patel if he was being
fired and being kicked out of the Hotel, and Defendant
Ken Patel responded in the affirmative to both
questions.
[Shrestha Depo., page 240, lines 22-25; page 241 lines
1-6, 14-22, attached as Exhibit 1 to the Retmier
Decl.]
20.
At the time of the termination, Katherine was on duty so
Ray left the hotel to take a walk and get some fresh air.
Katherine finished her shift and she and Ray “passed the
baton” to the Night Clerk at midnight, and began
moving out that night. The following day, Ray returned
to the Hotel around noon and retrieved more of his
belongings. Ray observed Defendant Ken Patel at the
Hotel, working in place of Ray’s at the front desk, and
silently watching Ray as he removed his belongings.
[Shrestha Depo, page 240, lines 12-25; page 241, lines
1-6; page 245, lines 18-22, 25; page 246, lines 1-25;
page 247, lines 1-8; page 248, lines 4-8; page 255,
lines 20-24; page 256, lines 20-25; page 258, lines 4-
22; page 260, lines 19-25; page 261, lines 1-12,
attached as Exhibit 1 to the Retmier Decl.;
Katherine Amporias Depo., page 235, lines 20-25;
page 266, lines 22-24; page 289, lines 24-25; page 290,
lines 1-25; page 291, line 1, attached as Exhibit 3 to
the Retmier Decl.]
21.
On August 4, 2016 Defendant Ketan Patel sent Ray a
message via Google Hangouts and asked where he
should send his final paycheck.
[Declaration of Ray Shrestha, 98, Exhibit 1].
Siz
PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF
PLAINTIFF'S OPPOSITION TO RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION
CASE NO. CGC-16-553387VENARDI ZURADA LLP
) 937-3905
5
Orinda, CA 94563
2.
Tel: (925) 937-3900
25 Orinda Way, Suite 250
Fax: (9:
NO.
PLAINTIFF’S DISPUTED AND UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
RESPONDENTS’
RESPONSE AND
SUPPORTING EVIDENCE
FACTS RELATED TO PLAINTIFF’S TENANCY AT
OF THE MANAGER’S DWELL'
THE HOTEL AND THE
22.
Between May 2012 and April 1, 2016, Ray was
provided the Manager’s Dwelling free of charge as part
of his employment with Defendants at the Hotel. After
April 1, 2016, pursuant to the written Employment
Agreement, Defendants deducted $835.49 from Ray’s
wages as rent for the dwelling.
[Shrestha Depo., page 102, lines 8-23, page 224, lines
9-10; page 532, lines 13-18; page 540, lines 5-7,
attached as Exhibit 1 to the Retmier Decl.;
Shrestha Decl. 4-5]
23.
The Manager’s Dwelling where Ray and his family
resided consisted of only two small bedrooms and a full
bathroom in the back with no kitchen. Ray was
supposed to have exclusive right to the Manager’s
Dwelling but Defendant Ken Patel sometimes used the
back bathroom and occasionally showering in that
bathroom. There was also a kitchen/office area with
another bathroom attached to the front office area (the
“Work Area”) and accessible from one of the small
bedrooms of the Manager’s Dwelling. Ray and his
family had access but not the exclusive control of the
Work Area because Defendants and the Night Manager
had free access to it and used it on a regular basis.
[Shrestha Depo., page 102, lines 8-23, page 224, lines
9-10; page 532, lines 13-18; page 540, lines 5-7,
attached as Exhibit 1 to the Retmier Decl.;
Shrestha Decl. ¥4, {6].
24,
The Manager’s Dwelling and Work Area suffered from
numerous building code violations which made it
uninhabitable and unsafe for Ray and his family. The
habitability issues included, without limitation, bars on
windows that prevented our client and his family from
being able to exit in case of an emergency, outdated and
poorly maintained sprinkler system, electrical wiring
issues, mold, and leaks as well as non-conforming
-8-
PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF
PLAINTIFF'S OPPOSITION TO RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION
CASE NO. CGC-16-553387VENARDI ZURADA LLP
) 937-3905
5
Orinda, CA 94563
2.
Tel: (925) 937-3900
25 Orinda Way, Suite 250
Fax: (9:
NO.
PLAINTIFF’S DISPUTED AND UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
RESPONDENTS’
RESPONSE AND
SUPPORTING EVIDENCE
construction and repairs. The habitability violations are
detailed in a report produced by Claudio Bluer, one of
the most experienced and respected habitability expert
in the Bay Area.
[Shrestha Depo., page 351, line 25, page 352, lines 1-
2, 5, 8-10, 15-18; page 353, lines 9-25; page 354, lines
5-25; page 355, lines 1-6, 17-25, attached as Exhibit
1 to the Retmier Decl.;
[Claudio Bluer Deposition (“Bluer Depo.”), page 31,
pages 22-25; page 32, lines 4-6; page 34, lines 5-7, 12-
14; page 36, lines 7-20; page 37, line 25, page 38, lines
1-4, 8-12, 16-17, 22-25, page 39, lines 1-6, 13-25; page
50, lines 1-4, 19-25, page 51, lines 1-12, 16-25; page
52, lines 4-6; page 59, lines 13-25, page 60, lines 1-9,
16-17, 20-25; page 61, lines 1-12, 15-16; page 62, lines
13-21; page 64, lines 1-4, 8-13, page 65, line 1, page
66, lines 1-25; page 67, lines 1-4, 11-25; page 68, lines
1-25; page 69, lines 16-25, page 70, lines 1-4, 7-9, 11-
21, page 74, lines 2-8, 11, 13-25; page 75, lines 1-14,
18-22; page 77, lines 1-2, 4-11, 17-18, 21, 23-25; page
78, lines 1-15; page 79, lines 16-25; page 80, lines 1-
17, 20, 22-25; page 81, lines 1-16; page 83, lines 4-11,
21-25, and Housing Inspection Report (attached as
Exhibit 3 to the Bluer Depo.), attached as Exhibit 5
to the Retmier Decl.]
25,
The Manager’s Dwelling and Work Area suffered from
numerous building code violations, many of which
“constitute an immediate life-threatening hazards,
directly affecting health and safety (habitability)”, and
Defendants had actual or constructive notice of these
violations.
[Bluer Depo., page 31, pages 22-25; page 32, lines 4-
6; page 34, lines 5-7, 12-14; page 36, lines 7-20; page
37, line 25, page 38, lines 1-4, 8-12, 16-17, 22-25, page
39, lines 1-6, 13-25; page 50, lines 1-4, 19-25, page 51,
lines 1-12, 16-25; page 52, lines 4-6; page 59, lines 13-
25, page 60, lines 1-9, 16-17, 20-25; page 61, lines 1-
12, 15-16; page 62, lines 13-21; page 64, lines 1-4, 8-
13, page 65, line 1, page 66, lines 1-25; page 67, lines
1-4, 11-25; page 68, lines 1-25; page 69, lines 16-25,
-9-
PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF
PLAINTIFF'S OPPOSITION TO RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION
CASE NO. CGC-16-553387VENARDI ZURADA LLP
) 937-3905
5
Orinda, CA 94563
2.
Tel: (925) 937-3900
25 Orinda Way, Suite 250
Fax: (9:
NO.
PLAINTIFF’S DISPUTED AND UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
RESPONDENTS’
RESPONSE AND
SUPPORTING EVIDENCE
page 70, lines 1-4, 7-9, 11-21, page 74, lines 2-8, 11,
13-25; page 75, lines 1-14, 18-22; page 77, lines 1-2, 4-
11, 17-18, 21, 23-25; page 78, lines 1-15; page 79,
lines 16-25; page 80, lines 1-17, 20, 22-25; page 81,
lines 1-16; page 83, lines 4-11, 21-25, and Housing
Inspection Report (attached as Exhibit 3 to the Bluer
Depo.), attached as Exhibit 5 to the Retmier Decl.]
26.
Many of the violations qualify for an “A” rating
meaning that they “threaten life and safety” and “require
immediate correction” and “B” rated violations
“constitute habitability issues, requiring immediate
correction” and “directly affect habitability on a daily
basis and should be corrected promptly”. The “C” rated
violations “refer to maintenance issues that directly
affect the living standards and they should be corrected
in a timely manner”. The B and C rated violations are
too pervasive to list exhaustively but they generally
identify a variety of breach of habitability issues that
made the Manager Dwelling and Work Area unsuitable
for habitation.
[Bluer Depo., page 31, pages 22-25; page 32, lines 4-
6; page 34, lines 5-7, 12-14; page 36, lines 7-20; page
37, line 25, page 38, lines 1-4, 8-12, 16-17, 22-25, page
39, lines 1-6, 13-25; page 50, lines 1-4, 19-25, page 51,
lines 1-12, 16-25; page 52, lines 4-6; page 59, lines 13-
25, page 60, lines 1-9, 16-17, 20-25; page 61, lines 1-
12, 15-16; page 62, lines 13-21; page 64, lines 1-4, 8-
13, page 65, line 1, page 66, lines 1-25; page 67, lines
1-4, 11-25; page 68, lines 1-25; page 69, lines 16-25,
page 70, lines 1-4, 7-9, 11-21, page 74, lines 2-8, 11,
13-25; page 75, lines 1-14, 18-22; page 77, lines 1-2, 4-
11, 17-18, 21, 23-25; page 78, lines 1-15; page 79,
lines 16-25; page 80, lines 1-17, 20, 22-25; page 81,
lines 1-16; page 83, lines 4-11, 21-25, and Housing
Inspection Report (attached as Exhibit 3 to the Bluer
Depo.), attached as Exhibit 5 to the Retmier Decl.]
27.
Defendants were aware of the deplorable condition of
the Manager’s Dwelling and the Work Area, because
Defendant Ken Patel was frequently in the front
office/kitchen area and frequented the back bathroom
which caused him to enter and cross the middle and
-10-
PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF
PLAINTIFF'S OPPOSITION TO RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION
CASE NO. CGC-16-553387VENARDI ZURADA LLP
) 937-3905
5
Orinda, CA 94563
2.
Tel: (925) 937-3900
25 Orinda Way, Suite 250
Fax: (9:
NO.
PLAINTIFF’S DISPUTED AND UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
RESPONDENTS’
RESPONSE AND
SUPPORTING EVIDENCE
back rooms of the Manager’s Dwelling. Defendant did
nothing about the habitability violations even though
many of them threatened the health and safety of Ray,
and his family.
[Ken Patel Depo, page 39, lines 6-25; page 40, lines
16-17,20-25; page 41, lines 1-18,21-24, attached as
Exhibit 2 to the Retmier Decl.;
Shrestha Depo at page 102, lines 8-23; page 109, lines
11-19; page 351, lines 25, page 352, lines 1-2, 8-10,
15-18; page 353, lines 9-25; page 354, lines 5-25; page
355, lines 1-6, 17-25; page 356, lines 9-16; page 357,
lines 5-20; page 358, lines 16-25; page 359, lines 1-4,
8-10, attached as Exhibit 1 to the Retmier Decl.]
FACTS RELATED TO RAY’S EMOTIONAL DISTRESS AS A RESULT OF
DEFENDAN
OUTRAGEOUS AND CRU
EL CONDUCT
28.
Ray suffered severe emotional distress as the result of
Defendants outrageous and cruel treatment and conduct.
Ray, his wife, and young two children, had to live and
occupy the uninhabitable and unsafe Manager’s
Dwelling and Work Area. Defendants knew about these
problems but did nothing to fix them. Defendants also
engaged in systematic wage theft by misclassifying Ray
and refusing to pay him overtime or to provide him with
meal and/or rest breaks. Defendants were also verbally
abusive and demeaning to Ray throughout his
employment. Defendants retaliated against Ray after he
cooperated with an OLSE investigation into Defendants’
wage and hour violations against other employees —
including forcing Ray to remove his dog from the Hotel,
disrupting his family unit and schedule by making his
wife split his 14-hour shift, continually reducing their
working hours, and deducting rent from his monthly
wages.
[Shrestha Depo at 217:22-25, 218:1-25, 398:18-25;
399:1-25; 400:1-25; 401:1-3,21-25; 402:1-18; 403:7-
25; 404:1-15, 21-25; 405:1-2].
29,
Defendants then verbally abused and wrongfully fired
Ray, a legally blind man, and his wife from long-term
employment, and wrongfully evicted them and their two
young children.
-ll-
PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF
PLAINTIFF'S OPPOSITION TO RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION
CASE NO. CGC-16-553387VENARDI ZURADA LLP
) 937-3905
5
Orinda, CA 94563
2.
Tel: (925) 937-3900
25 Orinda Way, Suite 250
Fax: (9:
NO.
PLAINTIFF’S DISPUTED AND UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
RESPONDENTS’
RESPONSE AND
SUPPORTING EVIDENCE
[Shrestha Depo., page 237, lines 24-25; page 238,
lines 3-5; page 240, lines 12-21; 240, lines 22-25; page
241 lines 1-6, 14-22, attached as Exhibit 1 to the
Retmier Decl.;
Shrestha Decl. (2.]
30.
This occurred within an hour of Defendants learning
that Ray had filed his lawsuit, aimed at righting the
wage and hour and habitability violations, and the
wrongful termination eviction were in retaliation for
Ray filing the complaint against the Defendants. This
conduct persisted over a long period of time.
[Ken Patel Depo., page 101, lines 13-19, page 102,
lines 2-3, attached as Exhibit 2 to the Retmier Decl.;
Deposition of Ketan Patel, pages 80, lines 3-5, 19-25;
page 81, lines 1-10, attached as Exhibit 4 to the
Retmier Decl.;
Shrestha Depo., page 237, lines 24-25; page 238, lines
3-5, page 240, lines 12-21, 22-25; page 241 lines 1-6,
14-22, attached as Exhibit 1 to the Retmier Decl.]
31.
It can be inferred that such outrageous conduct by
Defendants over a prolonged period of time would cause
a reasonable employee sever distress especially given
the employee’s dependence on the employer for wages
and housing. Ray’s symptoms of emotional distress
include, but are not limited to, feeling shocked,
humiliated, frustrated, and depressed, feeling mistreated
in the way that he was paid, feeling like he was treated
like a slave, ignored as to his several requests for
necessary repairs to his dwelling at the Hotel, ignored as
to his several requests for adequate and lawful pay, sad
and uncertain about whether he would be able to
make enough money to pay his bills and support his
family, sleeplessness, worry, anxiety and fear.
[Shrestha Depo., page 398, lines 18-25; page 399,
lines 1-25; page 400, lines 1-25; page 401, lines 1-3,
21-25; page 402, lines 1-18; page 403, lines 7-25; page
404, lines 1-15, 21-25; page 405, lines 1-2, attached as
Exhibit 1 to the Retmier Decl.]
-12-
PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF
PLAINTIFF'S OPPOSITION TO RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION
CASE NO. CGC-16-553387VENARDI ZURADA LLP
) 937-3905
5
Orinda, CA 94563
2.
Tel: (925) 937-3900
25 Orinda Way, Suite 250
Fax: (9:
NO.
PLAINTIFF’S DISPUTED AND UNDISPUTED
MATERIAL FACTS AND SUPPORTING
EVIDENCE
RESPONDENTS’
RESPONSE AND
SUPPORTING EVIDENCE
32.
Defendants conduct was both intentional and negligent,
and was a substantial factor in causing Ray’s severe
emotional distress.
[Shrestha Depo., page 348, lines 5-7; page 532, lines
13-25; page 533, lines 1-7; page 536, lines 11-25; page
537, lines 1-15; page 564, lines16-25; page 565, lines
1-11, 23-25; page 566, lines 1-15, attached as Exhibit
1 to the Retmier Decl.;
Amporias Depo., page 276, lines 12-25, attached as
Exhibit 3 to the Retmier Decl.]
Dated:
September 13, 2018
Respectfully submitted,
VENARDI ZURADA LLP
Mark L. Venardi
Martin Zurada
Jamie V. Retmier
Attorney for Plaintiff
RAMESH SHRESTHA aka RAY SHRESTHA
-1-
PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF
PLAINTIFF'S OPPOSITION TO RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION
CASE NO. CGC-16-553387
Preview
) 937-3905 5 2. Orinda, CA 94563 Tel: (925) 937-3900 VENARDI ZURADA LLP Fax: (9: 25 Orinda Way, Suite 250 Mark L. Venardi (SBN 173140) Martin Zurada (SBN 218235) Jamie Retmier (SBN 308060) ELECTRONICALLY VENARDI ZURADA LLP FILED 25 Orinda Way, Suite 250 Superior Court of California, Orinda, CA 94563 County of San Francisco Telephone: (925) 937-3900 09/13/2018 Facsimile: (925) 937-3905 oa of 42 Court BY: VANESSA WU Attorneys for Plaintiff Deputy Clerk RAMESH SHRESTHA aka RAY SHRESTHA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO RAMESH SHRESTHA aka RAY CASE NO.: CGC-16-553387 SHRESTHA, an individual, PLAINTIFF'S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED Plaintiff, MATERIAL FACTS IN SUPPORT OF PLAINTIFF’S OPPOSITION TO ee RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION HOTEL SUNRISE, INC., a California corporation; HOTEL SUNRISE, LLC, a California limited liability company; KIRIT Date: September 27, 2018 KUMAL PATEL aka KIRIT KUMAR pone aa a.m. PATEL aka KIRITKUMAR PATEL aka KEN ep: 2 PATEL, an individual; SHAKUNTALAL Judge: Hon. Harold E. Kahn PATEL aka SHAKUNTIA PATEL aka SHAKUNTLA PATEL aka SKAKUNTA PATEL aka NINA PATEL, an individual; and DOES 1-100, inclusive, Reservation No. 06280927-14 Defendants. Plaintiff RAMESH SHRESTHA aka RAY SHRESTHA submits the following Separate Statement of Material Disputed and Undisputed Facts in Support of the Opposition to Defendants’ Motion for Summary Adjudication pursuant to Code of Civil Procedure, section 437c and California Rules of Court, Rule 3.1350. The facts and evidence set forth below establish at least Slits! PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF’S OPPOSITION TO RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION CASE NO. CGC-16-553387VENARDI ZURADA LLP ) 937-3905 5 Orinda, CA 94563 2. Tel: (925) 937-3900 25 Orinda Way, Suite 250 Fax: (9: one material fact in dispute and therefore mandates denial of Defendants’ Motion for Summary Judgment. FACTS RELATED TO DEFENDANTS’ JOINT EMPLOYMENT OF PLAINTIFF NO. PLAINTIFF’S DISPUTED AND UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE RESPONDENTS’ RESPONSE AND SUPPORTING EVIDENCE Defendants admit that Hotel Sunrise, Inc. is one of Plaintiff's employers. Defendant Ken Patel expressly admitted under oath at this deposition that he and Defendant Meena Patel were also Ray’s employers. [Defendants’ Separate Statement 2-3; Ken Patel Deposition (“Ken Patel Depo”), page 208, lines 3-4, lines 20-25, attached as Exhibit 2 to the Declaration of Jamie V. Retmier (“Retmier Decl.”)] Ramesh Shrestha aka Ray Shrestha (“Ray” or “Plaintiff’) worked for Defendant Hotel Sunrise, Inc., Defendant Kiritkumar aka Ken Patel (“Defendant Ken Patel’”’), Defendant Shakuntla aka Meena Patel (“Defendant Meena Patel”), and Defendant Ketan Patel, from approximately September 2007 through September 2011, and again from May 2012 through August 2, 2016. [Ray Shrestha Deposition (“Shrestha Depo.”), page 142, lines 8-16, 23-24, attached as Exhibit 1 to the Retmier Decl.; Defendants Separate Statement 7]. Defendant Ken Patel initially hired Ray to work as a night clerk at Hotel Sunrise (the “Hotel”), and then promoted him to “Resident Manager” approximately 2 weeks later. [Shrestha Depo., page 97, lines 19-24, page 100, lines 15-25, page 101, lines1-2., attached as Exhibit 1 to the Retmier Decl.] Defendant Ken Patel dictated the terms of Ray’s employment, his pay, and the terms of his tenancy at the Hotel. [Shrestha Depo., page101, lines 3-21, attached as Exhibit 1 to the Retmier Decl.] =i2f=| PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF’S OPPOSITION TO RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION CASE NO. CGC-16-553387VENARDI ZURADA LLP ) 937-3905 5 Orinda, CA 94563 2. Tel: (925) 937-3900 25 Orinda Way, Suite 250 Fax: (9: NO. PLAINTIFF’S DISPUTED AND UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE RESPONDENTS’ RESPONSE AND SUPPORTING EVIDENCE Ray understood that Defendant Ken Patel, Defendant Meena Patel and Defendant Ketan Patel were his employers and supervisors at the Hotel. [Shrestha Depo. at page 97, lines 19-24, page 100, lines 15-25; page 101, lines 1-2 page 101, lines 3-21; page 140, lines 20-25; page 141, lines 1-8; page 171, lines 2-14; page 211, lines 11-25, page 212, pages 1-4; page 217, lines 6-16; page 218, lines 5-25; page 224, lines 3-25; page 237, lines 24-25; page 238, lines 3-5; page 240, lines 12-25; page 241, lines 1-6, 14-22; page 309, lines 18-24; page 310, lines 12-25; page 316, lines 3-8; page 369, lines 4-12; page 403, lines 7-16; page 404, lines 6-9; page 544, lines 10-14,18-25; page 545, lines 1, 12-13,18-19; page 557, lines 8-25; page 558, lines 1-2; page 559, lines 2-3; page 560, line 25 through 562, line 23; page 564, lines 2-13; page 592:14-18; page 600:24-25; page 601:1-4, attached as Exhibit 1 to the Retmier Decl. Shrestha Declaration, 8, Exhibit 1]. Ray reported Hotel business to Defendant Ken Patel and Meena Patel, Ray discussed the terms of his employment, tenancy at the Hotel, and his pay structure with Defendants Ken and Meena Patel, and Ray complained to Defendants Ken and Meena Patel about wage and hour violations and other employment related issues. [Shrestha Depo. at page 97, lines 19-24, page 100, lines 15-25; page 101, lines 1-2 page 101, lines 3-21; page 140, lines 20-25; page 141, lines 1-8; page 171, lines 2-14; page 211, lines 11-25, page 212, pages 1-4; page 217, lines 6-16; page 218, lines 5-25; page 224, lines 3-25; page 237, lines 24-25; page 238, lines 3-5; page 240, lines 12-25; page 241, lines 1-6, 14-22; page 309, lines 18-24; page 310, lines 12-25; page 316, lines 3-8; page 369, lines 4-12; page 403, lines 7-16; page 404, lines 6-9; page 544, lines 10-14,18-25; page 545, lines 1, 12-13,18-19; page 557, lines 8-25; page 558, lines 1-2; page 559, lines 2-3; page 560, line 25 through 562, line 23; page 564, lines 2-13; page 592:14-18; page 600:24-25; page 601:1-4, attached as Exhibit 1 to the Retmier Decl.]. =i3t=| PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF'S OPPOSITION TO RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION CASE NO. CGC-16-553387VENARDI ZURADA LLP ) 937-3905 5 Orinda, CA 94563 2. Tel: (925) 937-3900 25 Orinda Way, Suite 250 Fax: (9: NO. PLAINTIFF’S DISPUTED AND UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE RESPONDENTS’ RESPONSE AND SUPPORTING EVIDENCE Defendant Ketan Patel was also very involved in the Hotel business and maintained ongoing communication with Ray, via text or e-mail, related to questions and issues about the Hotel. Ray also reported Hotel business to Defendant Ketan Patel, Ray discussed the terms of his employment, tenancy at the Hotel, and his pay structure with Defendant Ketan Patel, and Ray complained to Defendant Ketan Patel about wage and hour violations and other employment related issues. [Shrestha Depo., page 140, lines 20-25; page 141,lines 1-8, 4-21; page 171, lines 2-14; page 211, lines 11-25, page 212, pages 1-4; page 217, lines 6-16; page 218, lines 5-25; page 224, lines 3-25; page 309, lines 18-24; page 310, lines 12-25; page 316, lines 3-8; page 369, lines 4-12; page 403, lines 7-16; page 544, lines 10- 14,18-25; page 545, lines1,12-13,18-19; page 558, lines 15-16; page, 560, lines 25 — page 562, lines 23; page 564, lines 2-13; page 600, lines 24-25; page 601, lines 1-4 attached as Exhibit 1 to the Retmier Decl. Shrestha Declaration, (8, Exhibit 1]. Defendants Ken Patel and Meena Patel are the owners of Hotel Sunrise, Inc. and the Hotel. [DSS#2-3]. Defendant Ken Patel is the President of Hotel Sunrise, Inc. and Defendant Meena Patel is the Secretary of Hotel Sunrise, Inc. [Ken Patel Depo., page 23, lines 6-13 attached as Exhibit 2 to the Retmier Decl.]. 10. There are no other directors or officers of Hotel Sunrise, Inc. besides Defendants Ken Patel and Meena Patel. [Ken Patel Depo., page 22, lines 22-25 attached as Exhibit 2 to the Retmier Decl.]. il. Defendant Ken Patel has admitted that he has not looked at the minute book for Hotel Sunrise, Inc. in years, and he does not remember when the last company meeting was, he does not remember if he has seen any notes of any action by directors or officers of Hotel Sunrise, Inc., he does not remember when he last saw any documents relating to any shareholder actions for Hotel Sunrise, Inc., and that no one has ever prepared any documents to reflect the actions of any directors, officers, or shareholders of Hotel Sunrise, Inc. -4- PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF'S OPPOSITION TO RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION CASE NO. CGC-16-553387VENARDI ZURADA LLP ) 937-3905 5 Orinda, CA 94563 2. Tel: (925) 937-3900 25 Orinda Way, Suite 250 Fax: (9: NO. PLAINTIFF’S DISPUTED AND UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE RESPONDENTS’ RESPONSE AND SUPPORTING EVIDENCE [Ken Patel Depo., page 22, lines 16-18; page 23, lines 16-25; page 24, lines 2-11 attached as Exhibit 2 to the Retmier Decl.]. 12. Defendant Ken Patel dictated Ray’s hours and duties at the hotel. Between May 2012 and April 1, 2016 Ray was to work from 10:00 a.m. until midnight, every day, and he was responsible for essentially each and every issue that could potentially arise with a tenant of the Hotel, and Hotel business. [Ken Patel Depo., page165, lines 3-17; page 44, lines 23 — page 48, lines 2, attached as Exhibit 2 to the Retmier Decl.]. 13. Defendant Ken Patel dictated Ray’s salary, and Defendant Ketan Patel also discussed Ray’s salary with him at the Hotel. Between May 2012 and April 1, 2016 Defendant Ken Patel paid Ray a flat salary between approximately $2,800 - $3,500 per month, in cash or sometimes via check. Defendant Ken Patel determined this rate of pay. [Ken Patel Depo., page 167, lines 11-15; page 168, lines 15-21; page 170, lines 4-6; page 193, lines 12-14; page 194, lines 4-5, attached as Exhibit 2 to the Retmier Decl. Shrestha Declaration, (8, Exhibit 1]. 14, Defendants created an Employment Agreement in April 2016 (“the April 2016 Employment Agreement”) in retaliation for Ray cooperating with an OLSE investigation. Defendants reduced Ray’s hours, and pay, and forced his wife to split his 14-hour shift so that he would work 7-8 hours and Ray’s wife would work 7- 8 hours per shift to avoid paying them overtime. In reality, Ray still worked the majority of the hours, and he and Katherine constantly covered for each other for duties around the Hotel during the 14-hour shift they were responsible for. Defendants knew that the actual work-hours were different from the Employment Agreement but never objected. Defendants also started deducting $835.49 per month from Ray’s wages for rent for the Manager’s Dwelling, which they had not done before April 1, 2016. [Ken Patel Depo., page 171, lines 14-25; page 172, lines 1-5, attached as Exhibit 2 to the Retmier Decl.; -5- PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF'S OPPOSITION TO RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION CASE NO. CGC-16-553387VENARDI ZURADA LLP ) 937-3905 5 Orinda, CA 94563 2. Tel: (925) 937-3900 25 Orinda Way, Suite 250 Fax: (9: NO. PLAINTIFF’S DISPUTED AND UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE RESPONDENTS’ RESPONSE AND SUPPORTING EVIDENCE Shrestha Depo., page 217, lines 22-25, page 218, lines 1-25; page 532, lines 13-25; page 533, lines 1-7; page 536, lines 11-25; page 537, lines 1-15; page 564, lines 16-25; page 565, lines 1-11, 23-25; page 566, lines 1- 15, attached as Exhibit 1 to the Retmier Decl.; Katherine Amporias Deposition (“Amporias Depo”), page 276, lines 12-25, attached as Exhibit 3 to the Retmier Decl.]. 15. After Ray was presented with and signed the April 2016 Employment Agreement he had a conversation with Defendant Ketal Patel in which Defendant Ketan Patel stated to him that “this is what is going to happen, this is what it is, and this is how it’s going to happen from now on.” Ray then asked Defendant Ketan Patel for a raise, and raised the possibility of Ray moving out of the Hotel and continuing to work at a higher hourly rate, but then decided to stay at the Hotel because the April 2016 Employment Agreement dictated that his employment was contingent on his residency at the Hotel. [Shrestha Depo., page 218, lines 5-25, attached as Exhibit 1 to the Retmier Decl.]. 16. On the afternoon of August 2, 2016 Defendant Ken Patel was present at the Hotel and received a call from Defendant Ketan Patel, informing him of this lawsuit for wage and hour and habitability claims. Less than 15 minutes later, Defendant Ketan Patel arrived at the Hotel to help his father confront Ray and his wife about the lawsuit. [Ken Patel Depo., page 101, lines 13-19, page 102, lines 2-3, attached as Exhibit 2 to the Retmier Decl.; Shrestha Depo., page 246, lines 18-22, attached as Exhibit 1 to the Retmier Decl.; Deposition of Ketan Patel, pages 80, lines 3-5, 19-25; page 81, lines 1-10, attached as Exhibit 4 to the Retmier Deecl.]. 17. After learning of the lawsuit Defendant Ken Patel was very upset, complained to Ray’s wife about the lawsuit, and yelled at Ray “you fucking filed a lawsuit against me?” [Shrestha Depo., page 237, lines 24-25; page 238, lines 3-5, attached as Exhibit 1 to the Retmier Deel.]. -6- PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF'S OPPOSITION TO RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION CASE NO. CGC-16-553387VENARDI ZURADA LLP ) 937-3905 5 Orinda, CA 94563 2. Tel: (925) 937-3900 25 Orinda Way, Suite 250 Fax: (9: NO. PLAINTIFF’S DISPUTED AND UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE RESPONDENTS’ RESPONSE AND SUPPORTING EVIDENCE 18. Defendant Ken Patel then demanded that Ray withdraw the lawsuit. When Ray said he would not withdraw the lawsuit and told Defendant Ken Patel to speak to his attorneys, Defendant Ken Patel said to Ray, “then in that case, I will have to fire you.” [Shrestha Depo., page 240, lines 12-21, attached as Exhibit 1 to the Retmier Decl.]. 19. Ray then asked Defendant Ken Patel if he was being fired and being kicked out of the Hotel, and Defendant Ken Patel responded in the affirmative to both questions. [Shrestha Depo., page 240, lines 22-25; page 241 lines 1-6, 14-22, attached as Exhibit 1 to the Retmier Decl.] 20. At the time of the termination, Katherine was on duty so Ray left the hotel to take a walk and get some fresh air. Katherine finished her shift and she and Ray “passed the baton” to the Night Clerk at midnight, and began moving out that night. The following day, Ray returned to the Hotel around noon and retrieved more of his belongings. Ray observed Defendant Ken Patel at the Hotel, working in place of Ray’s at the front desk, and silently watching Ray as he removed his belongings. [Shrestha Depo, page 240, lines 12-25; page 241, lines 1-6; page 245, lines 18-22, 25; page 246, lines 1-25; page 247, lines 1-8; page 248, lines 4-8; page 255, lines 20-24; page 256, lines 20-25; page 258, lines 4- 22; page 260, lines 19-25; page 261, lines 1-12, attached as Exhibit 1 to the Retmier Decl.; Katherine Amporias Depo., page 235, lines 20-25; page 266, lines 22-24; page 289, lines 24-25; page 290, lines 1-25; page 291, line 1, attached as Exhibit 3 to the Retmier Decl.] 21. On August 4, 2016 Defendant Ketan Patel sent Ray a message via Google Hangouts and asked where he should send his final paycheck. [Declaration of Ray Shrestha, 98, Exhibit 1]. Siz PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF'S OPPOSITION TO RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION CASE NO. CGC-16-553387VENARDI ZURADA LLP ) 937-3905 5 Orinda, CA 94563 2. Tel: (925) 937-3900 25 Orinda Way, Suite 250 Fax: (9: NO. PLAINTIFF’S DISPUTED AND UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE RESPONDENTS’ RESPONSE AND SUPPORTING EVIDENCE FACTS RELATED TO PLAINTIFF’S TENANCY AT OF THE MANAGER’S DWELL' THE HOTEL AND THE 22. Between May 2012 and April 1, 2016, Ray was provided the Manager’s Dwelling free of charge as part of his employment with Defendants at the Hotel. After April 1, 2016, pursuant to the written Employment Agreement, Defendants deducted $835.49 from Ray’s wages as rent for the dwelling. [Shrestha Depo., page 102, lines 8-23, page 224, lines 9-10; page 532, lines 13-18; page 540, lines 5-7, attached as Exhibit 1 to the Retmier Decl.; Shrestha Decl. 4-5] 23. The Manager’s Dwelling where Ray and his family resided consisted of only two small bedrooms and a full bathroom in the back with no kitchen. Ray was supposed to have exclusive right to the Manager’s Dwelling but Defendant Ken Patel sometimes used the back bathroom and occasionally showering in that bathroom. There was also a kitchen/office area with another bathroom attached to the front office area (the “Work Area”) and accessible from one of the small bedrooms of the Manager’s Dwelling. Ray and his family had access but not the exclusive control of the Work Area because Defendants and the Night Manager had free access to it and used it on a regular basis. [Shrestha Depo., page 102, lines 8-23, page 224, lines 9-10; page 532, lines 13-18; page 540, lines 5-7, attached as Exhibit 1 to the Retmier Decl.; Shrestha Decl. ¥4, {6]. 24, The Manager’s Dwelling and Work Area suffered from numerous building code violations which made it uninhabitable and unsafe for Ray and his family. The habitability issues included, without limitation, bars on windows that prevented our client and his family from being able to exit in case of an emergency, outdated and poorly maintained sprinkler system, electrical wiring issues, mold, and leaks as well as non-conforming -8- PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF'S OPPOSITION TO RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION CASE NO. CGC-16-553387VENARDI ZURADA LLP ) 937-3905 5 Orinda, CA 94563 2. Tel: (925) 937-3900 25 Orinda Way, Suite 250 Fax: (9: NO. PLAINTIFF’S DISPUTED AND UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE RESPONDENTS’ RESPONSE AND SUPPORTING EVIDENCE construction and repairs. The habitability violations are detailed in a report produced by Claudio Bluer, one of the most experienced and respected habitability expert in the Bay Area. [Shrestha Depo., page 351, line 25, page 352, lines 1- 2, 5, 8-10, 15-18; page 353, lines 9-25; page 354, lines 5-25; page 355, lines 1-6, 17-25, attached as Exhibit 1 to the Retmier Decl.; [Claudio Bluer Deposition (“Bluer Depo.”), page 31, pages 22-25; page 32, lines 4-6; page 34, lines 5-7, 12- 14; page 36, lines 7-20; page 37, line 25, page 38, lines 1-4, 8-12, 16-17, 22-25, page 39, lines 1-6, 13-25; page 50, lines 1-4, 19-25, page 51, lines 1-12, 16-25; page 52, lines 4-6; page 59, lines 13-25, page 60, lines 1-9, 16-17, 20-25; page 61, lines 1-12, 15-16; page 62, lines 13-21; page 64, lines 1-4, 8-13, page 65, line 1, page 66, lines 1-25; page 67, lines 1-4, 11-25; page 68, lines 1-25; page 69, lines 16-25, page 70, lines 1-4, 7-9, 11- 21, page 74, lines 2-8, 11, 13-25; page 75, lines 1-14, 18-22; page 77, lines 1-2, 4-11, 17-18, 21, 23-25; page 78, lines 1-15; page 79, lines 16-25; page 80, lines 1- 17, 20, 22-25; page 81, lines 1-16; page 83, lines 4-11, 21-25, and Housing Inspection Report (attached as Exhibit 3 to the Bluer Depo.), attached as Exhibit 5 to the Retmier Decl.] 25, The Manager’s Dwelling and Work Area suffered from numerous building code violations, many of which “constitute an immediate life-threatening hazards, directly affecting health and safety (habitability)”, and Defendants had actual or constructive notice of these violations. [Bluer Depo., page 31, pages 22-25; page 32, lines 4- 6; page 34, lines 5-7, 12-14; page 36, lines 7-20; page 37, line 25, page 38, lines 1-4, 8-12, 16-17, 22-25, page 39, lines 1-6, 13-25; page 50, lines 1-4, 19-25, page 51, lines 1-12, 16-25; page 52, lines 4-6; page 59, lines 13- 25, page 60, lines 1-9, 16-17, 20-25; page 61, lines 1- 12, 15-16; page 62, lines 13-21; page 64, lines 1-4, 8- 13, page 65, line 1, page 66, lines 1-25; page 67, lines 1-4, 11-25; page 68, lines 1-25; page 69, lines 16-25, -9- PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF'S OPPOSITION TO RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION CASE NO. CGC-16-553387VENARDI ZURADA LLP ) 937-3905 5 Orinda, CA 94563 2. Tel: (925) 937-3900 25 Orinda Way, Suite 250 Fax: (9: NO. PLAINTIFF’S DISPUTED AND UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE RESPONDENTS’ RESPONSE AND SUPPORTING EVIDENCE page 70, lines 1-4, 7-9, 11-21, page 74, lines 2-8, 11, 13-25; page 75, lines 1-14, 18-22; page 77, lines 1-2, 4- 11, 17-18, 21, 23-25; page 78, lines 1-15; page 79, lines 16-25; page 80, lines 1-17, 20, 22-25; page 81, lines 1-16; page 83, lines 4-11, 21-25, and Housing Inspection Report (attached as Exhibit 3 to the Bluer Depo.), attached as Exhibit 5 to the Retmier Decl.] 26. Many of the violations qualify for an “A” rating meaning that they “threaten life and safety” and “require immediate correction” and “B” rated violations “constitute habitability issues, requiring immediate correction” and “directly affect habitability on a daily basis and should be corrected promptly”. The “C” rated violations “refer to maintenance issues that directly affect the living standards and they should be corrected in a timely manner”. The B and C rated violations are too pervasive to list exhaustively but they generally identify a variety of breach of habitability issues that made the Manager Dwelling and Work Area unsuitable for habitation. [Bluer Depo., page 31, pages 22-25; page 32, lines 4- 6; page 34, lines 5-7, 12-14; page 36, lines 7-20; page 37, line 25, page 38, lines 1-4, 8-12, 16-17, 22-25, page 39, lines 1-6, 13-25; page 50, lines 1-4, 19-25, page 51, lines 1-12, 16-25; page 52, lines 4-6; page 59, lines 13- 25, page 60, lines 1-9, 16-17, 20-25; page 61, lines 1- 12, 15-16; page 62, lines 13-21; page 64, lines 1-4, 8- 13, page 65, line 1, page 66, lines 1-25; page 67, lines 1-4, 11-25; page 68, lines 1-25; page 69, lines 16-25, page 70, lines 1-4, 7-9, 11-21, page 74, lines 2-8, 11, 13-25; page 75, lines 1-14, 18-22; page 77, lines 1-2, 4- 11, 17-18, 21, 23-25; page 78, lines 1-15; page 79, lines 16-25; page 80, lines 1-17, 20, 22-25; page 81, lines 1-16; page 83, lines 4-11, 21-25, and Housing Inspection Report (attached as Exhibit 3 to the Bluer Depo.), attached as Exhibit 5 to the Retmier Decl.] 27. Defendants were aware of the deplorable condition of the Manager’s Dwelling and the Work Area, because Defendant Ken Patel was frequently in the front office/kitchen area and frequented the back bathroom which caused him to enter and cross the middle and -10- PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF'S OPPOSITION TO RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION CASE NO. CGC-16-553387VENARDI ZURADA LLP ) 937-3905 5 Orinda, CA 94563 2. Tel: (925) 937-3900 25 Orinda Way, Suite 250 Fax: (9: NO. PLAINTIFF’S DISPUTED AND UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE RESPONDENTS’ RESPONSE AND SUPPORTING EVIDENCE back rooms of the Manager’s Dwelling. Defendant did nothing about the habitability violations even though many of them threatened the health and safety of Ray, and his family. [Ken Patel Depo, page 39, lines 6-25; page 40, lines 16-17,20-25; page 41, lines 1-18,21-24, attached as Exhibit 2 to the Retmier Decl.; Shrestha Depo at page 102, lines 8-23; page 109, lines 11-19; page 351, lines 25, page 352, lines 1-2, 8-10, 15-18; page 353, lines 9-25; page 354, lines 5-25; page 355, lines 1-6, 17-25; page 356, lines 9-16; page 357, lines 5-20; page 358, lines 16-25; page 359, lines 1-4, 8-10, attached as Exhibit 1 to the Retmier Decl.] FACTS RELATED TO RAY’S EMOTIONAL DISTRESS AS A RESULT OF DEFENDAN OUTRAGEOUS AND CRU EL CONDUCT 28. Ray suffered severe emotional distress as the result of Defendants outrageous and cruel treatment and conduct. Ray, his wife, and young two children, had to live and occupy the uninhabitable and unsafe Manager’s Dwelling and Work Area. Defendants knew about these problems but did nothing to fix them. Defendants also engaged in systematic wage theft by misclassifying Ray and refusing to pay him overtime or to provide him with meal and/or rest breaks. Defendants were also verbally abusive and demeaning to Ray throughout his employment. Defendants retaliated against Ray after he cooperated with an OLSE investigation into Defendants’ wage and hour violations against other employees — including forcing Ray to remove his dog from the Hotel, disrupting his family unit and schedule by making his wife split his 14-hour shift, continually reducing their working hours, and deducting rent from his monthly wages. [Shrestha Depo at 217:22-25, 218:1-25, 398:18-25; 399:1-25; 400:1-25; 401:1-3,21-25; 402:1-18; 403:7- 25; 404:1-15, 21-25; 405:1-2]. 29, Defendants then verbally abused and wrongfully fired Ray, a legally blind man, and his wife from long-term employment, and wrongfully evicted them and their two young children. -ll- PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF'S OPPOSITION TO RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION CASE NO. CGC-16-553387VENARDI ZURADA LLP ) 937-3905 5 Orinda, CA 94563 2. Tel: (925) 937-3900 25 Orinda Way, Suite 250 Fax: (9: NO. PLAINTIFF’S DISPUTED AND UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE RESPONDENTS’ RESPONSE AND SUPPORTING EVIDENCE [Shrestha Depo., page 237, lines 24-25; page 238, lines 3-5; page 240, lines 12-21; 240, lines 22-25; page 241 lines 1-6, 14-22, attached as Exhibit 1 to the Retmier Decl.; Shrestha Decl. (2.] 30. This occurred within an hour of Defendants learning that Ray had filed his lawsuit, aimed at righting the wage and hour and habitability violations, and the wrongful termination eviction were in retaliation for Ray filing the complaint against the Defendants. This conduct persisted over a long period of time. [Ken Patel Depo., page 101, lines 13-19, page 102, lines 2-3, attached as Exhibit 2 to the Retmier Decl.; Deposition of Ketan Patel, pages 80, lines 3-5, 19-25; page 81, lines 1-10, attached as Exhibit 4 to the Retmier Decl.; Shrestha Depo., page 237, lines 24-25; page 238, lines 3-5, page 240, lines 12-21, 22-25; page 241 lines 1-6, 14-22, attached as Exhibit 1 to the Retmier Decl.] 31. It can be inferred that such outrageous conduct by Defendants over a prolonged period of time would cause a reasonable employee sever distress especially given the employee’s dependence on the employer for wages and housing. Ray’s symptoms of emotional distress include, but are not limited to, feeling shocked, humiliated, frustrated, and depressed, feeling mistreated in the way that he was paid, feeling like he was treated like a slave, ignored as to his several requests for necessary repairs to his dwelling at the Hotel, ignored as to his several requests for adequate and lawful pay, sad and uncertain about whether he would be able to make enough money to pay his bills and support his family, sleeplessness, worry, anxiety and fear. [Shrestha Depo., page 398, lines 18-25; page 399, lines 1-25; page 400, lines 1-25; page 401, lines 1-3, 21-25; page 402, lines 1-18; page 403, lines 7-25; page 404, lines 1-15, 21-25; page 405, lines 1-2, attached as Exhibit 1 to the Retmier Decl.] -12- PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF'S OPPOSITION TO RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION CASE NO. CGC-16-553387VENARDI ZURADA LLP ) 937-3905 5 Orinda, CA 94563 2. Tel: (925) 937-3900 25 Orinda Way, Suite 250 Fax: (9: NO. PLAINTIFF’S DISPUTED AND UNDISPUTED MATERIAL FACTS AND SUPPORTING EVIDENCE RESPONDENTS’ RESPONSE AND SUPPORTING EVIDENCE 32. Defendants conduct was both intentional and negligent, and was a substantial factor in causing Ray’s severe emotional distress. [Shrestha Depo., page 348, lines 5-7; page 532, lines 13-25; page 533, lines 1-7; page 536, lines 11-25; page 537, lines 1-15; page 564, lines16-25; page 565, lines 1-11, 23-25; page 566, lines 1-15, attached as Exhibit 1 to the Retmier Decl.; Amporias Depo., page 276, lines 12-25, attached as Exhibit 3 to the Retmier Decl.] Dated: September 13, 2018 Respectfully submitted, VENARDI ZURADA LLP Mark L. Venardi Martin Zurada Jamie V. Retmier Attorney for Plaintiff RAMESH SHRESTHA aka RAY SHRESTHA -1- PLAINTIFF’S SEPARATE STATEMENT OF DISPUTED AND UNDISPUTED MATERIAL FACTS IN SUPPORT OF PLAINTIFF'S OPPOSITION TO RESPONDENTS’ MOTION FOR SUMMARY ADJUDICATION CASE NO. CGC-16-553387