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SEYFARTH SHAW LLP SUPERIOR CouRT
Mark P. Grajski (SBN 178050) ro a cet
merajski@seyfarth.com HEHAR -3: PM 931-37.
Lindsay §. Fitch (SBN 238227) coe eg a ( _~
Ifitch@seyfarth.com : WS UAIUND palRo bE it i
Rabia Z. Reed (SBN 317288) ‘ hi
rreed@seyfarth.com ee eee 4
400 Capitol Mall, Suite 2350 a PUTY
Sacramento, California 95814-4428
Telephone: (916) 448-0159
Facsimile: (916) 558-4839
Attorneys for Defendant
COSTCO WHOLESALE CORPORATION
SUPERIOR COURT OF THE STATE OF CALIFORNIA
" COUNTY OF SAN JOAQUIN
KAMLESH KRISHNA, Case No. STK-CV-UWT-2018-985
Plaintifé, Assigned to Hon. Elizabeth Humphreys
Vv... DEFENDANT’S NOTICE TO SUPERIOR
COURT AND ADVERSE PARTY OF
COSTCO WHOLESALE CORPORATION, and NOTICE OF REMOVAL OF ACTION T
DOES 1-5, THE U.S. DISTRICT COURT '
Defendants.
Dept.: 10C
Complaint Filed: January 25, 2018
FILE BY FAX
TO THE CLERK OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA,
COUNTY OF SAN JOAQUIN, AND TO PLAINTIFF AND HIS ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on March 1, 2018, Defendant COSTCO WHOLESALE
CORPORATION (“Costco”) filed a Notice of Removal under 28 U.S.C. §§ 1441, 1446 and 1332 in the |.
office of the Clerk of the United States District Court for the Easter District of California, 501 I Street,
Sacramento, California 95814. This matter now bears Case No. 2:18-cv-00454-MCE-KJN, A true and
correct copy of the Notice of Removal is attached hereto and served herewith as Exhibit 1, and includes
all state court pleadings served upon Costco and filed in this action.
1
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DEFENDANT'S NOTICE TO SUPERIOR COURT AND ADVERSE PARTY OF REMOVAL
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Please take further notice that, pursuant to 28 U.S.C. § 1446, the filing of the Notice of Removal
with the United States District Court for the Eastern District of California constitutes removal of this
action and the Superior Court may proceed no further unless and until the case is remanded.
DATED: March 5, 2018 Respectfully submitted,
SEYFARTH SHAW LLP
By: 7 LL.
"Mark P, Grajski
Lindsay S. Fitch
Rabia Z. Reed
Attorneys for Defendant
COSTCO WHOLESALE CORPORATION
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DEFENDANT'S NOTICE TO SUPERIOR COURT AND ADVERSE PARTY OF REMOVAL
44828569v.1PROOF OF SERVICE
STATE OF CALIFORNIA )
) ss
COUNTY OF SAN JOAQUIN )
I am a resident of the State of California, over the age of eighteen years, and not a party to the
within action. My business address is 400 Capito] Mall, Suite 2350, Sacramento, California 95814-
4428. On March 5, 2018, I served the within document(s): ~
DEFENDANT’S NOTICE TO SUPERIOR COURT AND ADVERSE PARTY OF NOTICE OF
REMOVAL OF ACTION TO THE U.S. DISTRICT COURT
by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid,
in the United States mail at Sacramento, California, addressed as set forth below.
oO by personally delivering the document(s) listed above to the person(s) at the address(es) set forth
below.
by placing the decument(s) listed above; together with.an unsigned copy of this declaration, i
O sealed envelope or package provided by an overnight delivery carrier with postage paid on
account and deposited for collection with the overnight carrier at Sacramento, California,
addressed as set forth below. .
o by transmitting the document(s) listed above, electronically, via the e-mail addresses set forth
below.
Michelle M. Lunde Attorneys for Plaintiff
Law Offices of Michelle M. Lunde
1550 Humboldt Road, Suite 4 Tel: (530) 815-0766
Chico, CA 95928 Fax: (530) 592-3865
michellelunde@gmail.com
Patricia A. Savage
Law Offices of Patricia A. Savage Tel: (530) 809-1851
1550 Humboldt Road, Suite 4 Fax: (530) 592-3865
Chico, CA 95928 psavesq@gmail.com,
__ Lam teadily: familiar with the firm's practice of collection and processing correspondence for
mailing. Under that‘practice it would bé deposited with the U.S. Postal Service on that same day with
postage thereon fully prepaid in the ordinary course.of business. I am aware that on motion of the party
served, service is presumed invalid if postal cancellation date or postage meter date is more than one day
after daté of deposit for mailing in affidavit.
I declare under penalty of perjury under the laws of the State of California that the above is true
and correct.
Executed on March 5, 2018, at nado (ipilecte
=
, Linda Ninelist
PROOF OF SERVICE
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Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 1 of 62
SEYFARTH SHAW LLP
Mark P. Grajski (SBN 178050)
mgrajski@seyfarth.com
Lindsay S. Fitch (SBN 238227)
Ifitch@seyfarth.com
Rabia Z. Reed (SBN 317288)
treed@seyfarth.com
400 Capitol Mall, Suite 2350
Sacramento, California 95814-4428
Telephone: (916) 448-0159
Facsimile: (916) 558-4839
Attorneys for Defendant
COSTCO WHOLESALE CORPORATION
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
KAMLESH KRISHNA, Case No.
Plaintiff, DEFENDANT COSTCO WHOLESALE
CORPORATION’S NOTICE OF
v. REMOVAL OF CIVIL ACTION TO THE
U.S. DISTRICT COURT
COSTCO WHOLESALE CORPORATION, and
DOES 1-5,
Defendants.
Complaint Filed: January 25, 2018
TO THE U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
AND TO PLAINTIFF AND HIS ATTORNEY OF RECORD:
PLEASE TAKE NOTICE that Defendant Costco Wholesale Corporation (“Costco”) is filing this
Notice of Removal pursuant to 28 U.S.C. §§ 1332, 1441(a), and 1446, based on diversity of citizenship
jurisdiction, to effect the removal of the above-captioned action from the California Superior Court,
County of San Joaquin to the United States District Court for the Eastern District of California.
Removal is proper for the following reasons:
L BACKGROUND
1. This removal involves an action that was filed in the Superior Court of the State
of California, County of San Joaquin, entitled, “KAMLESH KRISHNA, Plaintiff, v. COSTCO
WHOLESALE CORPORATION and DOES 1-5, Defendants” (“Complaint”) designated San Joaquin
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DEFENDANT’S NOTICE OF REMOVAL
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Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 2 of 62
County Superior Court Case No. STK-CV- UWT-2018-985. A true and correct copy of the Complaint
is attached hereto as Exhibit 1.
2. Plaintiff Kamlesh Krishna filed the Complaint on January 25, 2018.
3. Costco was served with the summons and Complaint on February 1, 2018.
4. The Complaint alleges causes of action for (1) race and national origin
discrimination in violation of Gov. Code. § 12940(a), (2) race harassment in violation of Gov. Code.
§ 12940()), (3) retaliation in violation of Gov. Code. § 12940(h), (4) failure to prevent discrimination,
harassment and retaliation in violation of Gov. Code. § 12940(k), (5) wrongful termination in violation
of public policy, (6) negligent infliction of emotional distress, and (7) intentional infliction of emotional
distress. (See Ex. 1, Complaint.)
5. Costco answered the Complaint on February 23, 2018. A true and correct copy of|
the Answer is attached hereto as Exhibit 2.
6. On February 21, 2018 Plaintiff served his statement of damages. Costco received
his statement of damages on February 23, 2018. A true and correct copy of Plaintiff's statement of
damages is attached hereto as Exhibit 3.
Il TIMELINESS OF REMOVAL
7. This notice of removal is timely filed as it is filed less than one year from the date
this action was commenced and within thirty days of service upon Costco of the Complaint or other
paper from which it could first be ascertained that the case is one which is or has become removable. 28
U.S.C. § 1446(b); Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 119 S. Ct. 1322 (1999) (thirty-day
deadline to remove commences upon service of the summons and complaint).
I. DIVERSITY JURISDICTION
8. This Court has subject matter jurisdiction of this action under 28 U.S.C. §
1332(a)(1). This action is removable pursuant to 28 U.S.C. § 1332(a) because the amount in
controversy is in excess of seventy-five thousand dollars ($75,000), exclusive of interest and costs, and
is between citizens of different states. Accordingly, this action is removable to this Court pursuant to 28
USS.C. § 1441.
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DEFENDANT’S NOTICE OF REMOVAL
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Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 3 of 62
A. Plaintiff Is A Citizen Of California
9. For diversity purposes, a natural person is a “citizen” of the state in which he or
she is domiciled. Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir. 1983). Residence is
prima facie evidence of domicile. State Farm Mut. Auto Ins. Co. v. Dyer, 29 F.3d 514, 520 (10th Cir.
1994). Plaintiff alleges the events resulting in injury to Plaintiff occurred in Tracy, California. (Ex. 1,
Complaint 3.) Additionally, Plaintiff alleges that he was employed by Costco at their Tracy,
California location until June 28, 2017. (Ex. 1, Complaint §[ 3.) In Plaintiff's employment records with
Costco, he has listed a California address in Stockton as his home address for fifteen consecutive years.
Additionally, when filing an appeal with the Employment Development Department of California on
July 27, 2017, Plaintiff lists the same Stockton address as his place of residence. Costco has no evidence
that indicates Plaintiff is anything but a resident of California. Plaintiff is thereby domiciled in
California and a citizen of California for purposes of diversity jurisdiction.
B. Costco Is A Citizen Of Washington
10. Costco is now, and was, at the time of the filing of this action, a citizen of a state
other than California within the meaning of 28 U.S.C. Section 1332(c)(1).
{1. Pursuant to 28 U.S.C. § 1332(c)(L), “a corporation shall be deemed to be a citizen
of any State by which it has been incorporated and of the State where it has its principal place of
business.” See also Davis v. HSBC Bank Nevada, N.A., 557 F.3d 1026, 1028 (9th Cir. 2009) (citing 28
U.S.C. 1332(c)(1)). At all relevant times, Costco was, and still is, a Washington corporation with its
principal place of business in Issaquah, Washington.
12. The United States Supreme Court in The Hertz Corp. v. Friend held that a
corporate entity’s “principal place of business” for determining its citizenship is its “nerve center”:
‘We conclude that “principal place of business” is best read as referring to the place where
a corporation’s officers direct, control, and coordinate the corporation’s activities. It is
the place that Courts of Appeals have called the corporation’s “nerve center.” And in
practice it should normally be the place where the corporation maintains its
headquarters -- provided that the headquarters is the actual center of direction, control,
and coordination, i.e., the “nerve center”...
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DEFENDANT’S NOTICE OF REMOVAL
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Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 4 of 62
559 US. 77, 92-93 (2010) (emphasis added).
13. Costco’s “nerve center” is in Washington because Issaquah, Washington, is the
site of Costco’s corporate headquarters and executive offices, where Costco’s high-level officers direct,
control, and coordinate Costco’s activities. Accordingly, Costco is a citizen of the State of Washington.
Cc. Doe Defendants’ Citizenship
14. Pursuant to 28 U.S.C. Section 1441(a), the residence of fictitious and unknown
defendants shall be disregarded for purposes of establishing removal jurisdiction under 28 U.S.C.
Section 1332. Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1213 (9th Cir. 1980) (unnamed
defendants are not required to join in a removal petition). Thus, the existence of Doc defendants one
through five, inclusive, does not deprive this Court of jurisdiction.
IV. AMOUNT IN CONTROVERSY
15. While Defendant denies any liability as to Plaintiff's claims, the amount in
controversy requirement for diversity jurisdiction is satisfied because “it is more likely than not” that the
amount exceeds the jurisdictional minimum of $75,000. 28. U.S.C. § 1332 (a)(1); Sanchez v.
Monumental Life Ins., 102 F.3d 398, 404 (9th Cir. 1996) (“[D]efendant must provide evidence
establishing that it is ‘more likely than not’ that the amount in controversy exceeds [the threshold]
amount.”).
16. Further, the jurisdictional amount may be determined from the face of the
complaint. Singer v. State Farm Mutual Automobile Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997).
However, as explained by the Ninth Circuit, “the amount-in-controversy inquiry in the removal context
is not confined to the face of the complaint.” Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir.
2004) (finding that the Court may consider facts presented in the removal petition).
17. In determining the amount in controversy, the Court must consider the aggregate
of general damages, special damages, punitive damages, and attorneys’ fees. Galt G/S v. JSS
Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 1998) (claims for statutory attorneys’ fees to be included in
amount in controversy, regardless of whether such an award is discretionary or mandatory); Davenport
v. Mutual Benefit Health & Accident Ass ‘n, 325 F.2d 785, 787 (9th Cir. 1963) (punitive damages must
be taken into account where recoverable under state law); Conrad Assoc.’s v. Hartford Accident & Ind.
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DEFENDANT’S NOTICE OF REMOVAL
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Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 5 of 62
Co., 994 F. Supp. 1196, 1198 (N.D. Cal. 1998) (“amount in controversy” includes claims for general and]
special damages).
18. Plaintiff does not dispute that the amount in controversy exceeds the jurisdictional
minimum of this Court. California courts consider a Plaintiff’s Statement of Damages to be “a serious
estimate of damages in a given case.” Wheeler v. United Fin. Cas. Co., No. 2:16-CV-01875-SB, 2016
WL 6781612, at *2 (E.D. Cal. Nov. 16, 2016) (quoting Matheson v. Progressive Specialty Ins. Co., 319
F. 3d 1089, 1090 (9th Cir. 2003). Courts have held that even standing alone, a Statement of Damages
can constitute sufficient evidence of an amount in controversy. Wheeler v. United Fin. Cas. Co., No.
2:16-CV-01875-SB, 2016 WL 6781612, at *2 (E.D. Cal. Nov. 16, 2016). Based on the emotional
distress Plaintiff claims to have suffered alone, Plaintiff admits in his statement of damages that the
amount in controversy is this action exceeds $75,000. (Ex. 3, Statement of Damages) (total damages
alleged by Plaintiff amount to $1,599,200: specifically emotional distress damages in the amount of
$100,000; pain, suffering, and inconvenience damages in the amount of $200,000; loss of carnings to
date as $24,200; loss of future carning capacity at $300,000; and punitive damages at $975,000.)
A. Alleged Back Pay, Medical Expenses, Loss of Earnings, Emotional Distress, Physical
Injury, and Punitive Damages
19. __ Plaintiff seeks to recover “compensatory damages and special damages,
including, but not limited to, lost wages and emotional distress.” (Ex. 1, Complaint, Prayer for Relief, 7]
1,3.)
20. At the time of his termination, Plaintiff was a part-time employee earning $24.25
per hour. Plaintiff worked an average of approximately 75 hours every two weeks during the last year of
his employment.
21. Plaintiff claims he was terminated on June 28, 2017, approximately 35 weeks
from the date of this filing. Therefore, Plaintiff's lost wages to date are approximately $31,828.
22, Additionally, Plaintiff will likely claim lost wages for the time period from the
date Plaintiff claims he was terminated June 28, 2017 through trial. Assuming a conservative trial date
of 12 months after the filing of the Complaint, approximately 87 weeks from the date Plaintiff claims he
was terminated, Plaintiff's lost wages through trial will amount to approximately $79,115.
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DEFENDANT’S NOTICE OF REMOVAL
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Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 6 of 62
23. In addition to back pay, and loss of earnings, Plaintiff seeks to recover for
emotional distress (Ex. 1, Complaint, Prayer for Relief, ff] 1.) He also seeks a recovery of punitive
damages. (Ex. 1, Complaint, Prayer for Relief, J 4.)
24. To establish the amount in controversy, a defendant may rely on jury verdicts in
cases involving similar facts. Simmons v. PCR Tech., 209 F. Supp. 2d 1029, 1033 (N.D. Cal. 2002);
Kroske v. US Bank Corp., 432 F.3d 976, 980 (9th Cir. 2005).
25. California jury verdicts in similar cases often exceed $75,000. See, e.g., Behar v.
Union Bank, Los Angeles Superior Court, Case No. BC427993 (April 9, 2013 verdict) ($2,563,630
verdict on (two) plaintiffs’ claims for age discrimination and harassment, national origin discrimination
and harassment, breach of contract and defamation claims); Kamali v. California Dept. of Transp., Los
Angeles Superior Court Case No. BC426247 (December 20, 2012 verdict) (verdict for $663,983 on
plaintiff's claims for national origin and disability discrimination); Rosales v. Career Systems Devel.
Corp., E.D. Cal. Case No. 08CV01383 (WBS) (August 20, 2010 verdict) (verdict for $238,000 on
plaintiff's claims under the FEHA for national origin discrimination, age discrimination, retaliation, and
wrongful termination); Wang v. Rees Scientific Corporation, 2014 WL 8108412 (S. F. County Sup. Ct.)
(award of $1,315,936 to employee who sued employer for sex and race discrimination in violation of
FEHA and wrongful termination). (True and correct copies of this verdict information obtained from
westlaw.com are attached hereto as Exhibit 4.)
B. Attorney’s Fees
26. Plaintiff also seeks to recover attorneys’ fees. (Ex. 1, Complaint, Prayer for
Relief, { 2.) Requests for attorneys’ fees must be considered in ascertaining the amount in controversy.
See Galt, supra, 142 F.3d at 1156 (claims for statutory attorney’s fees to be included in amount in
controversy, regardless of whether award is discretionary or mandatory).
27. Here, Plaintiff, if successful, would be entitled to an award of attorneys’ fees that
itself “more likely than not” would exceed $75,000. Verdicts show that attorneys’ fees in employment
cases typically exceed $75,000. See Denenberg v. California Dep’t of Trans., 2007 WL 2827715 (San
Diego County Sup. Ct. Sept. 14, 2006) (attorney’s fees award of $490,000 in case alleging
discrimination, harassment, and retaliation); McMillan v. City of Los Angeles, 2005 WL 3729094 (Los
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Angeles County Sup. Ct. March 21, 2005) (attorney’s fees award of $504,926 in case alleging
discrimination and retaliation for filing lawsuit to redress discrimination), Gallegos v. Los Angeles City
College, 2003 WL 23336379 (Los Angeles County Sup. Ct. Oct. 16, 2003) (attorney’s fees award of
$159,277 for claim of discrimination and retaliation). (The verdicts in Denenberg, McMillan, and
Gallegos are attached hereto as Exhibit 5.)
28. For each of the foregoing reasons, while Defendant denies any liability as to
Plaintiff’s claims, it is now “more likely than not” that the amount in controversy exceeds $75,000,
exclusive of interest and costs, as required by 28 U.S.C. § 1332(a).
V. VENUE
29. Venue lies in this Court pursuant to 28 U.S.C. § 1441(a), as this action originally
was brought in the Superior Court of the State of California, County of San Joaquin.
VI. NOTICE OF REMOVAL ON STATE COURT
30. Defendant will give notice of the filing of this Notice of Removal to Plaintiff and
to the Clerk of the Superior Court of the State of California, County of San Joaquin. This Notice of
Removal is being served on all parties.
WHEREFORE, Defendant prays that this civil action be removed from the Superior Court of the
State of California, County of San Joaquin, to the United States District Court for the Eastern District of
California.
DATED: March 1, 2018 Respectfully submitted,
SEYFARTH SHAW LLP
By: _/s/Rabia Z. Reed
Mark P. Grajski
Lindsay S. Fitch
Rabia Z. Reed
Attomeys for Defendant
COSTCO WHOLESALE CORPORATION
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DEFENDANT’S NOTICE OF REMOVAL
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Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 8 of 62
PROOF OF SERVICE
Lam a fésident of the. State of California, over theage of eighteen years, and not 4 party.to the
within action. My business address:is 400 Capitol Mall, Suite 2350, Sacramento, California 95814-
4428. On Matéh 1, 2018, I served the within document(s):
DEFENDANT COSTCO WHOLESALE CORPORATION’S NOTICE OF REMOVAL OF
CIVIL ACTION TO THE U.S. DISTRICT COURT;
CIVIL COVER SHEET;
CORPORATE DISCLOSURE STATEMENT
NOTICE OF INTERESTED PARTIES
by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid,
in the United States mail at Sacramento, California, addressed as set forth below,
Oo by personally delivering the document(s) listed above to the person(s) at the address(es) set forth
below.
—, by placing the document(s) listed above, together with ani unsigned copy of this declaration, in a
Cl sealed envelope or package provided by an overiighit delivery carrier with postage paid on
account and deposited for collection with the overnight carrier at Sacramento, Catifornia,
addressed as set forth below.
Oo by transmitting the document(s) listed above, electronically, via the e-mail addresses set forth
below,
Michelle M. Lunde Attorneys for Plaintiff
Law Offices of Michelle M. Lunde
1550 Humboldt Road, Suite 4 Tel: (530) 815-0766
Chico, CA 95928 Fax: (530) 592-3865
michellelunde@gmail.com
Patricia A. Savage
Law Offices of Patricia A. Savage Tel: (530) 809-1851
1550 Humboldt Road, Suite 4 Fax: (530) 592-3865
Chico, CA 95928 psavesq@gmail.com,
Lam réadily familiar with the firm's practice of collection and processing correspondence for
inailing. Undér that practice it would be deposited with the U.S. Postal Service on that same day with
postage thereon fully prepaid in the ordinary course of business. ] am aware that on motion of the party
served, service is presumed invalid if postal cancellation date or postage meter date is more than one day
after date of deposit for mailing in affidavit.
I declare that I am employed in the office of a member of the bar of this court whose direction
the service was made. Executed on March 1, 2018, at Sacramento, California.
Linda Ninelist
PROOF OF SERVICE
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EXHIBIT 1Qe UT Po@ tt
Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 10 of 62
SUM-100
(ciTAGion. TUDIHAL,) wlan
NOTICE TO DEFENDANT:
(AVISO AL DEMANDADO):
COSTCO WHOLESALE CORPORATION and DOES 1-5
788 SAN 25 PHI2: 12
YOU ARE BEING SUED BY PLAINTIFF:
(LO ESTA DEMANDANDO EL DEMANDANTE): ROSA JUNGUEIC, CLERK
KCAMLESH KRISHNA . STSIN.
r+ ENEDINA LSITSIN-
NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information
below.
‘You have 30 CALENDAR DAYS after this summons and legel papars are servad on you to file @ written response at this court and have @ copy
served on the plaintiff, A letter or phone call will not protect you. Your written response must be in proper legal form If you want the court to hear your
case. There may be @ court form that you can use for your response. You can find these court forms and more infermation at the California Courts
Online Self-Help Canter (www.courtinfo.ca.gow/solihelp), your county faw library, or the courthouse nearast you. If you cannot pay the filing fee, ask
the court clerk for a fee waiver form. if you do not file your response on Unte, you may lose the case by defaull, and your wages, money, and property
may be taken without further warning from the court. .
There are other legal requirements. You may want to call an attorney right away. If yau do not know an attomey, you may want to call an attorney
referral service. If you cannol afford an attomey, you may bo eligible for free legal sarvices from a nonprofit tegal services program. You can locate
these nonprofit groups at the California Legal Servicas Wab site (www.lawhelpcalifornia.org), the Califomia Courts Online Self-Help Center
(www.courtinfo.ca.gov/selfhelp), or by contacting your local caurt or county bar association. NOTE: The court has a slatutory lien for waived fees and
costs on any settiament or arbitration award of $10,000 or mora in a civil case. The court's lian must be pald befare the court will dismiss tha case.
jAVISOI Lo han demandado. Sino responde dentro de 30 dlas, le corte puede decidir en su conira sin escuchar su versién. Lea la informacion a
continuacion.
Tiene 30 DIAS DE CALENDARIO después de que le ehtreguen esta citacién Y papeles legales pare presentar una respuesta por escrito en esta
corte y hacer que se entregue une copia al demandante. Una carta o una ilamade telefonica no to Protegen. Su respuesta par escrito tiene que estar
en formato legal corracto si desea que procesen su caso en a corte. Es posible que haya un formulario que usted puada user para su respuasta.
Puede encontrar estos formularios de la corte y mas informacién en al Centro de Ayuda de las Cortes de California (www. sucorte.ca.gov), en la
biblioteca de leyes de su condads o an ia corte que fe quede mas carca. Si no puede pagar fa cols de presentacién, pida al secratario de Ia corte
que le dé un formulario de axencion de pago de cuotas. Sino presenta su respueste a Wempo, puede perder el caso por incumplimiento y fe corte le
pooré quiler su susido, dinero y bienes sin mas advertencia.
Hay olros requisites legates. Es recomandabla que ilame a un abogado inmediatamente. Sino conoce @ un abogada, puade llamar a un servicio da
remision a abogados. Sino puede pagar a un abogado, es posible que cumpla con fos requisitos para obtener servicios legates gratultos da un
Programa de servicios legales sin fines de {ucro, Puede encontrar estos grupos sin fires de tucro en ol sitio web de Caltfornia Lagal Services,
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pagar el gravamen de fa corte antes de que /a corte pueda dasechar el caso.
The name and address of the court is:
(El nombre y direccién de ta corte es): -
Superior Court of California County of San Joaquin omx-ov-} fal T-2010- GS
180 E. Weber Ave, Suite 200, San Joaquin, CA 95202
The name, address, and telephone number of plaintiff's attorney, or plaintiff without an attorney, is: .
(Et nombre, Ja direceién y ef nimaro de teléfona def abogado del demandante, o def demandante que no tiena abogado, es):
Michelle Lunde, 1550 Humboldt Road, Suite 4, Chico, CA 95928 530-815-0766
ENEDINA LISITSIN
OATE: JAN 25 2018: Car BUNGLES ay
(Adjunto)
(For proof of service of this summons, use Proot of Sarvice of Summons (farm POS-010).)
(Para prueba de entrega de esta citation use ef formulario Proof of Service of Summons, (POS-010)).
pea NOTICE TO THE PERSON SERVED: You are served
1, [1] as an individual defendant.
2. [__] as the person sued under the fictitious name of (specify):
3. on behalf of (spacifyj: COSTCO WHOLESALE CORPORATION
KX] CCP 416.10 (corporation) [-) CCP 416.60 (minor)
(CCP 416.20 (defunct corporation) (=) CCP 416.70 (conservatee)
(J CCP 416.40 (association or partnership) (=) CCP 416.90 (authorized person) _
[1 other (specify):
4 TA by personal delivery on (date): 2- [~ 03 Paget ot
ano tots
Form Adopted (or Mandatory Use SUMMONS ‘Coda of CW Procedure §§ 412.20, 465
Judicial Couned of Caitfamnta
SUM-100 [Rov. July 2, 2608] wewu.catutiato.ca.govCase 2:18-cv-00454-MCE-KJN Document 1
MICHELLE M. LUNDE, (SBN 246585)
LAW OFFICES OF MICHELLE M. LUNDE
1550 Humboldt Road, Suite 4
Chico, CA 95928
Telephone: (530) 815-0766
Facsimilie: (530) 592-3865
Email: michellelunde@gmail.com
PATRICIA A. SAVAGE, (SBN 236235)
LAW OFFICES OF PATRICIA A. SAVAGE
1550 Humboldt Rd., Ste. 4°
Chico, CA 95928
Telephone: (530) 809-1851
Facsimile: (530) 592-3865
Email: psavesq@gmail.com
Attorneys for KAMLESH KRISHNA
Filed 03/01/18 Page 11 of 62
FILED
Taig JAN 25. PH AZ: 12
RGegeSOR RATE
at Berult.
THIS CASE HAS BEEN ASSIGNED
qT
JUDGE ELIZABETH HUMPHREYS iN
DEPARTMENT 16C FO;
INCLUDING TRIAL" PURPOSES,
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN JOAQUIN
KAMLESH KRISHNA,
PLAINTIFF
v.
COSTCO WHOLESALE CORPORATION
and DOES 1-5.
DEFENDANT.
Case No. om-ov- lal’ 2018~ AGG
PLAINTIFF KAMLESH KRISHNA’S
COMPLAINT FOR DAMAGES
Race Discrimination
Race Harassment
Retaliation
Failure to Prevent Discrimination,
Harassment and Retaliation
5. Wrongful Termination in
Violation of Public Policy
6. Negligent Infliction of Emotional
Distress
7. Intentional Infliction of Emotional
Distress .
PONr
DEMAND FOR JURY TRIAL
PLAINTIFF KAMLESH KRISHNA (“PLAINTIFF” or “KRISHNA”, respectfully
submits the Verified Complaint for Damages against Defendant COSTCO WHOLESALE
1
PLAINTIFF KAMLESH KRISHNA’S COMPLAINT
FOR DAMAGES
Michelle M. Lunde, Esq.
Patricia A. Savage, Esq.Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 12 of 62
CORPORATION and DOES 1-50, (“Defendant” or “COSTCO”) and Demand for Jury Trial and
alleges as follows:
I. INTRODUCTION
f., ‘This case arises out of unlawful employment practices, including racial
discrimination and wrongful termination in violation of the California Fair Employment and
Housing Act, Section 12940 et seq. Plaintiff KAMLESH KRISHNA was a member of a protected
class, was qualified for his position and was discharged and/or replaced by a person outside of the
protected class. Further, Defendant COSTCO (“Defendant”), created and/or knowingly permitted
intolerable and aggravated working conditions, which compelled and resulted in Plaintiff's
discharge.
I._ JURISDICTION AND VENUE
2. Pursuant to Code of Civil Procedure Section 395(a), venue is proper in this
Judicial district because the injury to the Plaintiff occurred in the County of San Joaquin.
Defendant maintains a business in the County of San Joaquin, employed the Plaintiff in the
County of San Joaquin, and/or transact business in the County of San Joaquin and are within the
jurisdiction of this Court. The monetary claims of Plaintiff are within the jurisdiction of this
court.
il. THE PARTIES
3. Plaintiff, a competent adult, was at various times herein relevant, an employee of
the Defendant, commencing on or about 2004, and continuing until about June 28, 2017 at the
| Defendant’s Tracy, California location when Defendant terminated him without notice.
4, Through the date of his termination Plaintiff met the work standards required by
Defendant:
5. Plaintiff is informed and believes and thereon alleges that Defendant is a
Washington-based corporation operating in the County of San Joaquin, wherein the alleged acts
occurred and the obligations incurred, and was the employer of the Plaintiff.
. 2
Michelle M. Lunde, Esq.
PLAINTIFF KAMLESH KRISHNA’S COMPLAINT Patricia A. Savage Est
FOR DAMAGESCo wm InN A
Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 13 of 62
6. Defendant DOES 1 through 5, are owners, operators, managers, subsidiaries of, or
owned entities of Defendants or persons otherwise responsible for paying the damages alleged
herein. Plaintiff is ignorant of the true names, capacities, relationships and extent of participation
in the conduct herein alleged, of the Defendants sued herein as DOES | through 5, inclusive, and
therefore sues these Defendants by such fictitious names. Plaintiff will amend this Complaint to
allege the true names and capacities of the DOE Defendants when ascertained.
7. Plaintiff is informed and believes, and thereon alleges, that at all times herein
relevant, each of the Defendant’s and their employees, whether specifically named, designated as
a DOE, or otherwise identified was the agent, servant and employee of each of the remaining co-
Defendants and, in doing the things herein alleged, was acting within the course and scope of said
agency, employment and service with the advanced knowledge, consent and ratification of each
of the remaining Defendants.
8. COSTCO also professes to foster an environment that supports racial equality and
prevents discrimination. .
9. KAMLESH KRISHNA, a man of Asian Indian descent, a husband and father of
two, has provided services for COSTCO in the Tracy area for more than 12 years, and previously
worked in Canada for eight years. KRISHNA’S work in Canada took place without incident.
However, his work in Tracy was far from trouble free, due to repeated incidents of racial
harassment, discrimination, related disparate treatment and retaliation.
10. KRISHNA was called “camel man,” by co-workers, who stated that he must be
conspiring with other co-workers of Indian descent to steal. KRISHNA was accused of sexual
harassment, after he gave a shoulder rub to an older, male employee a shoulder rub after the man
had requested it. He was suspended for three days, although he was told the incident did not
constitute sexual harassment or unwanted touching. As a result, he was also demoted from his
preferred position as in Inventory Auditor to work in hot dog production. He was also told that he
could no longer use the front door, or eat in the same lunch room as others.
11]. KRISHNA complained in writing on September 12, 2016 to Human Resources
that he felt he was being treated differently because of his race, but nothing changed.
3
Michelle M. Lunde, Esq.
PLAINTIFF KAMLESH KRISHNA’S COMPLAINT Patricia A. Savage, Esq.
FOR DAMAGES :oO YN A WH eh wD
10
Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 14 of 62
12. Again, on June 14, 2017, KRISHNA complained in writing again that he had been
“racially harassed” on a “daily basis.” The second letter detailed how he was asked if people
could expect car bombs from him, asked why he didn’t wear a turban, and told “all Hindus stink.”
Again, nothing changed.
13. In a third complaint, addressed directly to the president and CEO of COSTCO,
KRISHNA touted his long term employment and excellent work record, and stated his previous
complaints regarding racial discrimination and retaliation were ignored. He stated he complained
to three supervisors and written letters about it. Some of the people mentioned in his complaints
were the same people who asserted he was involved in a theft of some money from a collection
being taken up for a co-worker. KRISHNA knew he was being framed, but was powerless to stop
it,
14. | KRISHNA was interviewed by sheriff's deputies on that day, much to his
humiliation, and offered to take a lie detector test and help law enforcement however he could.
KRISHNA directly noted that he was being harassed and retaliated against. The treatment at
COSTCO cause KRISHNA chest pains which sent him to the emergency room. KRISHNA
stated he had plans to retire with COSTCO, and asked them to address the situation. He never
received a response.
IV. ALLEGATIONS
FIRST CAUSE OF ACTION
(RACE DISCRIMINATION/NATIONAL ORIGIN)
Government Code §12940(a)
(Plaintiff against each Defendant)
15. The allegations set forth in this complaint are hereby re-alleged and incorporated
by reference. .
16. At all times relevant to this matter, the Fair Employment and Housing Act and
California Government Code Section 12940 were in full force and effect and binding on
Defendants. PLAINTIFF was subjected to unwanted discriminatory conduct because of his race,
in which he was demoted, denied promotions and subjected to-ongoing humiliation, and given
work assignments below his experience level, capabilities and training. This discriminatory
4
Michelle M. Lunde, Esq.
PLAINTIFF KAMLESH KRISHNA’S COMPLAINT Patricia A Savage, Esq,
FOR DAMAGES,Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 15 of 62
conduct was conducted by PLAINTIFF’s supervisors and peers who created an environment that,
among other things, tolerated and encouraged discrimination against PLAINTIFF based on his
race. The conduct on the part of Defendants complained of herein represent a violation of
California Government Code section 12940(a).
17. Throughout PLAINTIFF’s employment, beginning in 2004 and continuing to the
present time, PLAINTIFF has been harmed in the form of lost income, business opportunities and
suffered severe emotional distress because of Defendant’s actions which were motivated by race
discrimination. Defendant’s actions were a substantial factor in causing PLAINTIFF harm.
18. As a proximate result of the aforementioned violations, PLAINTIFF has been
damaged in an amount according to proof, but in an amount in excess of the jurisdiction of this
Court. PLAINTIF also secks “affirmative relief” or “prospective relief” as defined by
Government Code §12926(a), including back pay, reimbursement of out of pocket expenses,
expungement of records and any such other relief that this Court deems proper.
19. The above described actions were perpetrated and/or ratified by a managing
agent(s) and/or officers of Defendant. These acts were done with malice, fraud, oppression, and
in reckless disregard of PLAINTIFF’s tights. Further, said actions were despicable in character
and warrant the imposition of damages, attorneys’ fees and costs.
Wherefore, PLAINTIFF requests relief as hereinafter prayed for.
SECOND CAUSE OF ACTION
(RACE HARASSMENT)
Government Code §12940(j)
(Plaintiff against each Defendant)
20. ‘The allegations set forth in paragraphs above are hereby re-alleged and
incorporated by reference.
21, Atall times relevant to this matter, the Fair Employment and Housing Act,
California Government Code section 12940 et seq. was in full force and effect and binding on
Defendant. Defendant violated the law by subjecting PLAINTIFF to unwanted harassing conduct
because of his race.
Michelle M. Lunde, Esq.
PLAINTIFF KAMLESH KRISHNA’S COMPLAINT Patrici
FOR DAMAGES . atricia A. Savage, Esq.Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 16 of 62
22. As set forth above, during PLAINTIFF’s employment with Defendants, he was
subjected to a hostile work.environment in which PLAINTIFF was subjected to unwanted
harassing conduct because of his race, in which he was demoted, denied promotions and
subjected to ongoing humiliation, given work assignments below his credentials, capabilities and
training. This discriminatory conduct was conducted by PLAINTIFF’s supervisors and peers
who created an environment that, among other things, tolerated and encouraged harassment
against PLAINTIFF based on his race. This harassing conduct permeated the workplace and
affected the terms and conditions of PLAINTIFF’s employment. PLAINTIFF found the ,
atmosphere to be both offensive and demeaning.
23. A reasonable person in PLAINTIFF’s circumstances would have considered the
work environment to be hostile or abusive. The environment of harassment was severe and
pervasive.
24. Defendants knew or should have known of the conduct and failed to take all
reasonable steps to prevent and redress discrimination and harassment against PLAINTIFF.
Defendant’s conduct violated Government Code section 12940(j) and Title 2 of the California
Code of Regulations §§ 7287.6 and 7287.7.
25. Asa proximate result of the aforementioned violations, PLAINTIFF has been
damaged in an amount according to proof, but in an amount in excess of the jurisdiction of this
Court. PLAINTIFF also seeks “affirmative relief’ or “prospective relief” as defined by
Government Code section 12926(a), including back pay, reimbursement of out of pocket
expenses, expungement of records and any such other relief that this Court deems proper.
26. The above described actions were perpetrated and/or ratified by a managing
agent(s) and/or officers of Defendant. These acts were done with malice, fraud, oppression, and
in reckless disregard of PLAINTIFF’s rights. Further, said actions were despicable in character
and warrant the imposition of damages, attorneys’ fees and costs.
Wherefore, PLAINTIFF requests relief as hereinafter prayed for.
ror oe :
/ / /
. Michelle M. Lunde, Esq.
PLAINTIFF KAMLESH KRISHNA’S COMPLAINT Patricia A. Savage, Est
FOR DAMAGESco OP YN DWH PB wWwN
Bos
Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 17 of 62
THIRD CAUSE OF ACTION
(RETALIATION)
Government Code §12940(h)
(Plaintiff against each Defendant)
27. The allegations set forth in this complaint are hereby re-alleged and incorporated
by reference.
28. — Atall times relevant to this action, the Fair Employment and Housing Act
(“FEHA”) and California Government Codes sections 12940 et seq., were in full force and
effect and binding on the Defendant. The statements and conduct on the part of the Defendant
complained of herein represent a violation of FEHA, as codified in California Government
Codes sections 12940 et seq.
29. At all relevant times herein, PLAINTIFF engaged in protected activity by
complaining about race discrimination to Defendant and the Department of Fair Employment and
Housing. PLAINTIFF’s activities were protected activities pursuant to Government Code section
12940(h).
30. Plaintiffs internal complaints regarding racial discrimination resulted in retaliatory
actions. This includes, but is not limited to, the fact that approximately two weeks. after
complaining about race discrimination internally, PLAINTIFF was retaliated against, by being
terminated on a pretext.
31. PLAINTIFF’s protected activities were a motivating reason for Defendant’s
decision to demote and deny PLAINTIFF promotions.
32. | PLAINTIFF has lost income, business opportunities and suffered severe emotional
distress because of Defendant's actions.
33. Defendant’s retaliatory conduct was a substantial factor in the causing harm to
PLAINTIFF.
34. Asa proximate result of the aforementioned violations, PLAINTIFF has been
damaged in an amount according to proof, but in an amount in excess of the jurisdiction of this
Court. PLAINTIFF also seeks “affirmative relief” or “prospective relief” as defined by
Michelle M. Lunde, Esq,
PLAINTIFF KAMLESH KRISHNA’S COMPLAINT Patricia A, Savage, Ese
FOR DAMAGESCase 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 18 of 62
Government Code section 12926(a), including back pay, reimbursement of out of pocket
expenses, expungement of records and any such other relief that this Court deems proper.
35. The above described actions were perpetrated and/or ratified by a managing
agent(s) and/or officers of Defendant. These acts were done with malice, fraud, oppression, and
in reckless disregard of PLAINTIFF’s rights. Further, said actions were despicable in character
and warrant the imposition of exemplary and punitive damages, attorneys’ fees and costs.
Wherefore, PLAINTIFF requests relief as hereinafter prayed for.
, FOURTH CAUSE OF ACTION
(FAILURE TO PREVENT DISCRIMINATION,
HARASSMENT AND RETALIATION)
Government Code §12940(k)
(Plaintiff against each Defendant)
36. The allegations set forth in this complaint are hereby re-alleged and incorporated
by reference.
37. Asan employer, pursuant to Government Code section 12926(d), Defendant has a
duty to prevent unlawful harassment and discrimination, including retaliation. Defendant knew
or should have known about the discrimination, harassment, and retaliation based on
PLAINTIFF’s protected status and activities in relationship to opposing discriminatory policies.
38. Defendant failed to implement adequate training, policies, monitoring, or
instructions that would have prevented the aforementioned discrimination, harassment, and
retaliation. Defendant's breach of this important duty resulted in harm to PLAINTIFE.
Accordingly, Defendant violated Government Code section 12940(k), Title 2 of the California
Code of Regulations § 7287.6(b)(3).
39. Asa proximate result of the aforementioned violations, PLAINTIFF has been
damaged in an amount according to proof, but in an amount in excess of the jurisdiction of this
Court. PLAINTIFF also seeks “affirmative relief” or “prospective relief” as defined by
Government Cade section 12926(a), including back pay, reimbursement of out of pocket
i :
expenses, expungement of records and any such other relief that this Court deems proper.
8
Michelle M. Lunde, Esq.
PLAINTIFF KAMLESH KRISHNA’S COMPLAINT Patricia A. sane Est,
FOR DAMAGESCase 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 19 of 62
40. The above described actions were perpetrated and/or ratified by a managing
agent(s) and/or officers of Defendant, These acts were done with malice, fraud, oppression, and
in reckless disregard of PLAJNTIFF’s rights. Further, said actions were despicable in character
and warrant the imposition of general and special damages, attorneys’ fees and costs. .
Wherefore, PLAINTIFF requests relief as hereinafter prayed for.
FIFTH CAUSE OF ACTION
WRONGFUL ‘TERMINATION IN VIOLATION OF PUBLIC POLICY
‘ (Plaintiff against each Defendant)
41. The allegations set forth in this complaint are hereby re-alleged and incorporated
by reference. At all times relevant, PLAINTIFF was an employee of Defendant, and Defendant
was PLAINTIFF’S employer.
42. Plaintiff is informed and believes and thereon alleges that such actions by the
Defendant were because of his race or the desire of Defendant to discriminate against similar
employees as a group, or that the Plaintiff's race was an impermissible factor in the Defendant’s
action. :
43. Defendant’s conduct breached the public policy of the State of California, in that
an employer must notify and advise all covered employees in writing of any discontinuation of
coverage for medical, surgical or hospital benefits, under Labor Code Section 2806. Further, it is
public policy that employers, such as Defendant, not use an employee's race or national origin in
auy employment decision. :
44, Defendant violated fundamental public policy in the State of California that
employees be free from unlawful harassment, discrimination and retaliation.
45. Asa direct and proximate result of the Defendants unlawful conduct and
discrimination, Plaintiff has suffered general and special damages, including, but not limited to:
loss of wages, benefits, and additional amounts of money Plaintiff would have received if he had
been retained as an employee of Defendant.
Michelle M, Lunde, Esq.
PLAINTIFF KAMLESH KRISHNA’S COMPLAINT Patricia A. Savage ES,
FOR DAMAGESCase 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 20 of 62
46. Asa further direct and proximately result of Defendant’s unlawful conduct,
Plaintiff has suffered inconvenience, humiliation, mental anguish and emotional distress in an
amount according to proof.
47. The Defendants have acted despicably with a willful and conscious disregard of
the rights of the Plaintiff, subjecting Plaintiff to unjust hardship and suffering. Therefore,
Plaintiff is entitled to recover punitive and exemplary damages from the Defendant in an amount
to be proven at trial. ,
Wherefore, Plaintiff requests relief as hereinafter prayed for.
SIXTH CAUSE OF ACTION
(NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS)
(Plaintiff against each Defendant)
48. The allegations set forth in this complaint are hereby re-alleged and incorporated
by reference.
49. | DEFENDANT’s repeated failure to respond to PLAINTIFF’s repeated pleas to
address a racially hostile and retaliatory environment, exceeds the bounds of decency, is
intolerable within our civilized community, and is therefore outrageous.
50. By negligently allowing behavior as outrageous as discussed supra and by failing
| to investigate his harassment claims, while allowing retaliation against him — in the form of a
theft complaint which was handled in a discriminatory fashion, and by allowing disparate
treatment to continue — Plaintiff was caused emotional distress. ©
51. DEFENDANT caused PLAINTIFF to suffer extreme emotional distress, as
indicated by the lingering anxiety, shame, and fear for his personal safety that are the direct and
proximate results of DEFENDANT’s conduct.
52. Asa proximate result of the aforementioned violations, PLAINTIFF has been
damaged in an amount according to proof. Further, said actions were despicable in character and
warrant the imposition of punitive damages in a sum sufficient to punish and to deter
DEFENDANT from such conduct in the future.
Wherefore, Plaintiff requests relief as hereinafter prayed for.
“ 10
. Michelle M. Lund
PLAINTIFF KAMLESH KRISHNA’S COMPLAINT Pavicia A Savage, Ee
FOR DAMAGESCase 2:18-cv-00454-MCE-KJN Document 1 Filed 03/01/18 Page 21 of 62
SEVENTH CAUSE OF ACTION
(INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS)
(Plaintiff against each Defendant)
53. The allegations set forth in this complaint are hereby re-alleged and incorporated
by reference.
54, DEFENDANT’s treatment of PLAINTIFF as discussed supra, exceeds the bounds
of decency, is intolerable within our civilized community, and is therefore outrageous.
55. By allowing other employees to continue to call PLAINTIFF “camel man”, state
that “all Hindus smell bad” and make accusations that he and others of similar descent were
engaged in theft, and by causing the police to investigate him as an alleged thief, DEFENDANT
intended to cause PLAIN
Preview
w Oo wo I DN fs 05 FILED \ SEYFARTH SHAW LLP SUPERIOR CouRT Mark P. Grajski (SBN 178050) ro a cet merajski@seyfarth.com HEHAR -3: PM 931-37. Lindsay §. Fitch (SBN 238227) coe eg a ( _~ Ifitch@seyfarth.com : WS UAIUND palRo bE it i Rabia Z. Reed (SBN 317288) ‘ hi rreed@seyfarth.com ee eee 4 400 Capitol Mall, Suite 2350 a PUTY Sacramento, California 95814-4428 Telephone: (916) 448-0159 Facsimile: (916) 558-4839 Attorneys for Defendant COSTCO WHOLESALE CORPORATION SUPERIOR COURT OF THE STATE OF CALIFORNIA " COUNTY OF SAN JOAQUIN KAMLESH KRISHNA, Case No. STK-CV-UWT-2018-985 Plaintifé, Assigned to Hon. Elizabeth Humphreys Vv... DEFENDANT’S NOTICE TO SUPERIOR COURT AND ADVERSE PARTY OF COSTCO WHOLESALE CORPORATION, and NOTICE OF REMOVAL OF ACTION T DOES 1-5, THE U.S. DISTRICT COURT ' Defendants. Dept.: 10C Complaint Filed: January 25, 2018 FILE BY FAX TO THE CLERK OF THE SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF SAN JOAQUIN, AND TO PLAINTIFF AND HIS ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on March 1, 2018, Defendant COSTCO WHOLESALE CORPORATION (“Costco”) filed a Notice of Removal under 28 U.S.C. §§ 1441, 1446 and 1332 in the |. office of the Clerk of the United States District Court for the Easter District of California, 501 I Street, Sacramento, California 95814. This matter now bears Case No. 2:18-cv-00454-MCE-KJN, A true and correct copy of the Notice of Removal is attached hereto and served herewith as Exhibit 1, and includes all state court pleadings served upon Costco and filed in this action. 1 oe DEFENDANT'S NOTICE TO SUPERIOR COURT AND ADVERSE PARTY OF REMOVAL 44828569v.1Co Oo YN DH BF WN DO eee o 0 em RD AW Re WY YF Oo ai Please take further notice that, pursuant to 28 U.S.C. § 1446, the filing of the Notice of Removal with the United States District Court for the Eastern District of California constitutes removal of this action and the Superior Court may proceed no further unless and until the case is remanded. DATED: March 5, 2018 Respectfully submitted, SEYFARTH SHAW LLP By: 7 LL. "Mark P, Grajski Lindsay S. Fitch Rabia Z. Reed Attorneys for Defendant COSTCO WHOLESALE CORPORATION 2 DEFENDANT'S NOTICE TO SUPERIOR COURT AND ADVERSE PARTY OF REMOVAL 44828569v.1PROOF OF SERVICE STATE OF CALIFORNIA ) ) ss COUNTY OF SAN JOAQUIN ) I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is 400 Capito] Mall, Suite 2350, Sacramento, California 95814- 4428. On March 5, 2018, I served the within document(s): ~ DEFENDANT’S NOTICE TO SUPERIOR COURT AND ADVERSE PARTY OF NOTICE OF REMOVAL OF ACTION TO THE U.S. DISTRICT COURT by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Sacramento, California, addressed as set forth below. oO by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below. by placing the decument(s) listed above; together with.an unsigned copy of this declaration, i O sealed envelope or package provided by an overnight delivery carrier with postage paid on account and deposited for collection with the overnight carrier at Sacramento, California, addressed as set forth below. . o by transmitting the document(s) listed above, electronically, via the e-mail addresses set forth below. Michelle M. Lunde Attorneys for Plaintiff Law Offices of Michelle M. Lunde 1550 Humboldt Road, Suite 4 Tel: (530) 815-0766 Chico, CA 95928 Fax: (530) 592-3865 michellelunde@gmail.com Patricia A. Savage Law Offices of Patricia A. Savage Tel: (530) 809-1851 1550 Humboldt Road, Suite 4 Fax: (530) 592-3865 Chico, CA 95928 psavesq@gmail.com, __ Lam teadily: familiar with the firm's practice of collection and processing correspondence for mailing. Under that‘practice it would bé deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course.of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after daté of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on March 5, 2018, at nado (ipilecte = , Linda Ninelist PROOF OF SERVICE 44646778v.1EXHIBIT 10 0 Nt 10 MW 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 1 of 62 SEYFARTH SHAW LLP Mark P. Grajski (SBN 178050) mgrajski@seyfarth.com Lindsay S. Fitch (SBN 238227) Ifitch@seyfarth.com Rabia Z. Reed (SBN 317288) treed@seyfarth.com 400 Capitol Mall, Suite 2350 Sacramento, California 95814-4428 Telephone: (916) 448-0159 Facsimile: (916) 558-4839 Attorneys for Defendant COSTCO WHOLESALE CORPORATION UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA KAMLESH KRISHNA, Case No. Plaintiff, DEFENDANT COSTCO WHOLESALE CORPORATION’S NOTICE OF v. REMOVAL OF CIVIL ACTION TO THE U.S. DISTRICT COURT COSTCO WHOLESALE CORPORATION, and DOES 1-5, Defendants. Complaint Filed: January 25, 2018 TO THE U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA AND TO PLAINTIFF AND HIS ATTORNEY OF RECORD: PLEASE TAKE NOTICE that Defendant Costco Wholesale Corporation (“Costco”) is filing this Notice of Removal pursuant to 28 U.S.C. §§ 1332, 1441(a), and 1446, based on diversity of citizenship jurisdiction, to effect the removal of the above-captioned action from the California Superior Court, County of San Joaquin to the United States District Court for the Eastern District of California. Removal is proper for the following reasons: L BACKGROUND 1. This removal involves an action that was filed in the Superior Court of the State of California, County of San Joaquin, entitled, “KAMLESH KRISHNA, Plaintiff, v. COSTCO WHOLESALE CORPORATION and DOES 1-5, Defendants” (“Complaint”) designated San Joaquin 1 DEFENDANT’S NOTICE OF REMOVAL 4437443 1v.3Oo WM AH HW "Oo 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 2 of 62 County Superior Court Case No. STK-CV- UWT-2018-985. A true and correct copy of the Complaint is attached hereto as Exhibit 1. 2. Plaintiff Kamlesh Krishna filed the Complaint on January 25, 2018. 3. Costco was served with the summons and Complaint on February 1, 2018. 4. The Complaint alleges causes of action for (1) race and national origin discrimination in violation of Gov. Code. § 12940(a), (2) race harassment in violation of Gov. Code. § 12940()), (3) retaliation in violation of Gov. Code. § 12940(h), (4) failure to prevent discrimination, harassment and retaliation in violation of Gov. Code. § 12940(k), (5) wrongful termination in violation of public policy, (6) negligent infliction of emotional distress, and (7) intentional infliction of emotional distress. (See Ex. 1, Complaint.) 5. Costco answered the Complaint on February 23, 2018. A true and correct copy of| the Answer is attached hereto as Exhibit 2. 6. On February 21, 2018 Plaintiff served his statement of damages. Costco received his statement of damages on February 23, 2018. A true and correct copy of Plaintiff's statement of damages is attached hereto as Exhibit 3. Il TIMELINESS OF REMOVAL 7. This notice of removal is timely filed as it is filed less than one year from the date this action was commenced and within thirty days of service upon Costco of the Complaint or other paper from which it could first be ascertained that the case is one which is or has become removable. 28 U.S.C. § 1446(b); Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 119 S. Ct. 1322 (1999) (thirty-day deadline to remove commences upon service of the summons and complaint). I. DIVERSITY JURISDICTION 8. This Court has subject matter jurisdiction of this action under 28 U.S.C. § 1332(a)(1). This action is removable pursuant to 28 U.S.C. § 1332(a) because the amount in controversy is in excess of seventy-five thousand dollars ($75,000), exclusive of interest and costs, and is between citizens of different states. Accordingly, this action is removable to this Court pursuant to 28 USS.C. § 1441. 2 DEFENDANT’S NOTICE OF REMOVAL 4437443 Lv.3w C0 Oo ID 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 3 of 62 A. Plaintiff Is A Citizen Of California 9. For diversity purposes, a natural person is a “citizen” of the state in which he or she is domiciled. Kantor v. Wellesley Galleries, Ltd., 704 F.2d 1088, 1090 (9th Cir. 1983). Residence is prima facie evidence of domicile. State Farm Mut. Auto Ins. Co. v. Dyer, 29 F.3d 514, 520 (10th Cir. 1994). Plaintiff alleges the events resulting in injury to Plaintiff occurred in Tracy, California. (Ex. 1, Complaint 3.) Additionally, Plaintiff alleges that he was employed by Costco at their Tracy, California location until June 28, 2017. (Ex. 1, Complaint §[ 3.) In Plaintiff's employment records with Costco, he has listed a California address in Stockton as his home address for fifteen consecutive years. Additionally, when filing an appeal with the Employment Development Department of California on July 27, 2017, Plaintiff lists the same Stockton address as his place of residence. Costco has no evidence that indicates Plaintiff is anything but a resident of California. Plaintiff is thereby domiciled in California and a citizen of California for purposes of diversity jurisdiction. B. Costco Is A Citizen Of Washington 10. Costco is now, and was, at the time of the filing of this action, a citizen of a state other than California within the meaning of 28 U.S.C. Section 1332(c)(1). {1. Pursuant to 28 U.S.C. § 1332(c)(L), “a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.” See also Davis v. HSBC Bank Nevada, N.A., 557 F.3d 1026, 1028 (9th Cir. 2009) (citing 28 U.S.C. 1332(c)(1)). At all relevant times, Costco was, and still is, a Washington corporation with its principal place of business in Issaquah, Washington. 12. The United States Supreme Court in The Hertz Corp. v. Friend held that a corporate entity’s “principal place of business” for determining its citizenship is its “nerve center”: ‘We conclude that “principal place of business” is best read as referring to the place where a corporation’s officers direct, control, and coordinate the corporation’s activities. It is the place that Courts of Appeals have called the corporation’s “nerve center.” And in practice it should normally be the place where the corporation maintains its headquarters -- provided that the headquarters is the actual center of direction, control, and coordination, i.e., the “nerve center”... 3 DEFENDANT’S NOTICE OF REMOVAL 4437443 1v.3So OD Ome NY DH WH BF Ww N NR NY NY NR YN NR DY KDB He we Be Re eH ee oD A A RF YB NY = So we I KH A RB YW NY Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 4 of 62 559 US. 77, 92-93 (2010) (emphasis added). 13. Costco’s “nerve center” is in Washington because Issaquah, Washington, is the site of Costco’s corporate headquarters and executive offices, where Costco’s high-level officers direct, control, and coordinate Costco’s activities. Accordingly, Costco is a citizen of the State of Washington. Cc. Doe Defendants’ Citizenship 14. Pursuant to 28 U.S.C. Section 1441(a), the residence of fictitious and unknown defendants shall be disregarded for purposes of establishing removal jurisdiction under 28 U.S.C. Section 1332. Fristoe v. Reynolds Metals Co., 615 F.2d 1209, 1213 (9th Cir. 1980) (unnamed defendants are not required to join in a removal petition). Thus, the existence of Doc defendants one through five, inclusive, does not deprive this Court of jurisdiction. IV. AMOUNT IN CONTROVERSY 15. While Defendant denies any liability as to Plaintiff's claims, the amount in controversy requirement for diversity jurisdiction is satisfied because “it is more likely than not” that the amount exceeds the jurisdictional minimum of $75,000. 28. U.S.C. § 1332 (a)(1); Sanchez v. Monumental Life Ins., 102 F.3d 398, 404 (9th Cir. 1996) (“[D]efendant must provide evidence establishing that it is ‘more likely than not’ that the amount in controversy exceeds [the threshold] amount.”). 16. Further, the jurisdictional amount may be determined from the face of the complaint. Singer v. State Farm Mutual Automobile Ins. Co., 116 F.3d 373, 377 (9th Cir. 1997). However, as explained by the Ninth Circuit, “the amount-in-controversy inquiry in the removal context is not confined to the face of the complaint.” Valdez v. Allstate Ins. Co., 372 F.3d 1115, 1117 (9th Cir. 2004) (finding that the Court may consider facts presented in the removal petition). 17. In determining the amount in controversy, the Court must consider the aggregate of general damages, special damages, punitive damages, and attorneys’ fees. Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 1998) (claims for statutory attorneys’ fees to be included in amount in controversy, regardless of whether such an award is discretionary or mandatory); Davenport v. Mutual Benefit Health & Accident Ass ‘n, 325 F.2d 785, 787 (9th Cir. 1963) (punitive damages must be taken into account where recoverable under state law); Conrad Assoc.’s v. Hartford Accident & Ind. 4 DEFENDANT’S NOTICE OF REMOVAL 4437443 lv.3eC Oo UD 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 5 of 62 Co., 994 F. Supp. 1196, 1198 (N.D. Cal. 1998) (“amount in controversy” includes claims for general and] special damages). 18. Plaintiff does not dispute that the amount in controversy exceeds the jurisdictional minimum of this Court. California courts consider a Plaintiff’s Statement of Damages to be “a serious estimate of damages in a given case.” Wheeler v. United Fin. Cas. Co., No. 2:16-CV-01875-SB, 2016 WL 6781612, at *2 (E.D. Cal. Nov. 16, 2016) (quoting Matheson v. Progressive Specialty Ins. Co., 319 F. 3d 1089, 1090 (9th Cir. 2003). Courts have held that even standing alone, a Statement of Damages can constitute sufficient evidence of an amount in controversy. Wheeler v. United Fin. Cas. Co., No. 2:16-CV-01875-SB, 2016 WL 6781612, at *2 (E.D. Cal. Nov. 16, 2016). Based on the emotional distress Plaintiff claims to have suffered alone, Plaintiff admits in his statement of damages that the amount in controversy is this action exceeds $75,000. (Ex. 3, Statement of Damages) (total damages alleged by Plaintiff amount to $1,599,200: specifically emotional distress damages in the amount of $100,000; pain, suffering, and inconvenience damages in the amount of $200,000; loss of carnings to date as $24,200; loss of future carning capacity at $300,000; and punitive damages at $975,000.) A. Alleged Back Pay, Medical Expenses, Loss of Earnings, Emotional Distress, Physical Injury, and Punitive Damages 19. __ Plaintiff seeks to recover “compensatory damages and special damages, including, but not limited to, lost wages and emotional distress.” (Ex. 1, Complaint, Prayer for Relief, 7] 1,3.) 20. At the time of his termination, Plaintiff was a part-time employee earning $24.25 per hour. Plaintiff worked an average of approximately 75 hours every two weeks during the last year of his employment. 21. Plaintiff claims he was terminated on June 28, 2017, approximately 35 weeks from the date of this filing. Therefore, Plaintiff's lost wages to date are approximately $31,828. 22, Additionally, Plaintiff will likely claim lost wages for the time period from the date Plaintiff claims he was terminated June 28, 2017 through trial. Assuming a conservative trial date of 12 months after the filing of the Complaint, approximately 87 weeks from the date Plaintiff claims he was terminated, Plaintiff's lost wages through trial will amount to approximately $79,115. 5 DEFENDANT’S NOTICE OF REMOVAL 4437443 Lv.3oN DO Hh Ww ‘o 10 u 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 6 of 62 23. In addition to back pay, and loss of earnings, Plaintiff seeks to recover for emotional distress (Ex. 1, Complaint, Prayer for Relief, ff] 1.) He also seeks a recovery of punitive damages. (Ex. 1, Complaint, Prayer for Relief, J 4.) 24. To establish the amount in controversy, a defendant may rely on jury verdicts in cases involving similar facts. Simmons v. PCR Tech., 209 F. Supp. 2d 1029, 1033 (N.D. Cal. 2002); Kroske v. US Bank Corp., 432 F.3d 976, 980 (9th Cir. 2005). 25. California jury verdicts in similar cases often exceed $75,000. See, e.g., Behar v. Union Bank, Los Angeles Superior Court, Case No. BC427993 (April 9, 2013 verdict) ($2,563,630 verdict on (two) plaintiffs’ claims for age discrimination and harassment, national origin discrimination and harassment, breach of contract and defamation claims); Kamali v. California Dept. of Transp., Los Angeles Superior Court Case No. BC426247 (December 20, 2012 verdict) (verdict for $663,983 on plaintiff's claims for national origin and disability discrimination); Rosales v. Career Systems Devel. Corp., E.D. Cal. Case No. 08CV01383 (WBS) (August 20, 2010 verdict) (verdict for $238,000 on plaintiff's claims under the FEHA for national origin discrimination, age discrimination, retaliation, and wrongful termination); Wang v. Rees Scientific Corporation, 2014 WL 8108412 (S. F. County Sup. Ct.) (award of $1,315,936 to employee who sued employer for sex and race discrimination in violation of FEHA and wrongful termination). (True and correct copies of this verdict information obtained from westlaw.com are attached hereto as Exhibit 4.) B. Attorney’s Fees 26. Plaintiff also seeks to recover attorneys’ fees. (Ex. 1, Complaint, Prayer for Relief, { 2.) Requests for attorneys’ fees must be considered in ascertaining the amount in controversy. See Galt, supra, 142 F.3d at 1156 (claims for statutory attorney’s fees to be included in amount in controversy, regardless of whether award is discretionary or mandatory). 27. Here, Plaintiff, if successful, would be entitled to an award of attorneys’ fees that itself “more likely than not” would exceed $75,000. Verdicts show that attorneys’ fees in employment cases typically exceed $75,000. See Denenberg v. California Dep’t of Trans., 2007 WL 2827715 (San Diego County Sup. Ct. Sept. 14, 2006) (attorney’s fees award of $490,000 in case alleging discrimination, harassment, and retaliation); McMillan v. City of Los Angeles, 2005 WL 3729094 (Los 6 DEFENDANT’S NOTICE OF REMOVAL 4437443 1v.3Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 7 of 62 Angeles County Sup. Ct. March 21, 2005) (attorney’s fees award of $504,926 in case alleging discrimination and retaliation for filing lawsuit to redress discrimination), Gallegos v. Los Angeles City College, 2003 WL 23336379 (Los Angeles County Sup. Ct. Oct. 16, 2003) (attorney’s fees award of $159,277 for claim of discrimination and retaliation). (The verdicts in Denenberg, McMillan, and Gallegos are attached hereto as Exhibit 5.) 28. For each of the foregoing reasons, while Defendant denies any liability as to Plaintiff’s claims, it is now “more likely than not” that the amount in controversy exceeds $75,000, exclusive of interest and costs, as required by 28 U.S.C. § 1332(a). V. VENUE 29. Venue lies in this Court pursuant to 28 U.S.C. § 1441(a), as this action originally was brought in the Superior Court of the State of California, County of San Joaquin. VI. NOTICE OF REMOVAL ON STATE COURT 30. Defendant will give notice of the filing of this Notice of Removal to Plaintiff and to the Clerk of the Superior Court of the State of California, County of San Joaquin. This Notice of Removal is being served on all parties. WHEREFORE, Defendant prays that this civil action be removed from the Superior Court of the State of California, County of San Joaquin, to the United States District Court for the Eastern District of California. DATED: March 1, 2018 Respectfully submitted, SEYFARTH SHAW LLP By: _/s/Rabia Z. Reed Mark P. Grajski Lindsay S. Fitch Rabia Z. Reed Attomeys for Defendant COSTCO WHOLESALE CORPORATION 7 DEFENDANT’S NOTICE OF REMOVAL 4437443 lv.3oC Oo I DN 10 ul 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 21 28 Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 8 of 62 PROOF OF SERVICE Lam a fésident of the. State of California, over theage of eighteen years, and not 4 party.to the within action. My business address:is 400 Capitol Mall, Suite 2350, Sacramento, California 95814- 4428. On Matéh 1, 2018, I served the within document(s): DEFENDANT COSTCO WHOLESALE CORPORATION’S NOTICE OF REMOVAL OF CIVIL ACTION TO THE U.S. DISTRICT COURT; CIVIL COVER SHEET; CORPORATE DISCLOSURE STATEMENT NOTICE OF INTERESTED PARTIES by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Sacramento, California, addressed as set forth below, Oo by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below. —, by placing the document(s) listed above, together with ani unsigned copy of this declaration, in a Cl sealed envelope or package provided by an overiighit delivery carrier with postage paid on account and deposited for collection with the overnight carrier at Sacramento, Catifornia, addressed as set forth below. Oo by transmitting the document(s) listed above, electronically, via the e-mail addresses set forth below, Michelle M. Lunde Attorneys for Plaintiff Law Offices of Michelle M. Lunde 1550 Humboldt Road, Suite 4 Tel: (530) 815-0766 Chico, CA 95928 Fax: (530) 592-3865 michellelunde@gmail.com Patricia A. Savage Law Offices of Patricia A. Savage Tel: (530) 809-1851 1550 Humboldt Road, Suite 4 Fax: (530) 592-3865 Chico, CA 95928 psavesq@gmail.com, Lam réadily familiar with the firm's practice of collection and processing correspondence for inailing. Undér that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. ] am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare that I am employed in the office of a member of the bar of this court whose direction the service was made. Executed on March 1, 2018, at Sacramento, California. Linda Ninelist PROOF OF SERVICE 44831214v.1Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 9 of 62 EXHIBIT 1Qe UT Po@ tt Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 10 of 62 SUM-100 (ciTAGion. TUDIHAL,) wlan NOTICE TO DEFENDANT: (AVISO AL DEMANDADO): COSTCO WHOLESALE CORPORATION and DOES 1-5 788 SAN 25 PHI2: 12 YOU ARE BEING SUED BY PLAINTIFF: (LO ESTA DEMANDANDO EL DEMANDANTE): ROSA JUNGUEIC, CLERK KCAMLESH KRISHNA . STSIN. r+ ENEDINA LSITSIN- NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information below. ‘You have 30 CALENDAR DAYS after this summons and legel papars are servad on you to file @ written response at this court and have @ copy served on the plaintiff, A letter or phone call will not protect you. Your written response must be in proper legal form If you want the court to hear your case. There may be @ court form that you can use for your response. You can find these court forms and more infermation at the California Courts Online Self-Help Canter (www.courtinfo.ca.gow/solihelp), your county faw library, or the courthouse nearast you. If you cannot pay the filing fee, ask the court clerk for a fee waiver form. if you do not file your response on Unte, you may lose the case by defaull, and your wages, money, and property may be taken without further warning from the court. . There are other legal requirements. You may want to call an attorney right away. If yau do not know an attomey, you may want to call an attorney referral service. If you cannol afford an attomey, you may bo eligible for free legal sarvices from a nonprofit tegal services program. You can locate these nonprofit groups at the California Legal Servicas Wab site (www.lawhelpcalifornia.org), the Califomia Courts Online Self-Help Center (www.courtinfo.ca.gov/selfhelp), or by contacting your local caurt or county bar association. NOTE: The court has a slatutory lien for waived fees and costs on any settiament or arbitration award of $10,000 or mora in a civil case. The court's lian must be pald befare the court will dismiss tha case. jAVISOI Lo han demandado. Sino responde dentro de 30 dlas, le corte puede decidir en su conira sin escuchar su versién. Lea la informacion a continuacion. Tiene 30 DIAS DE CALENDARIO después de que le ehtreguen esta citacién Y papeles legales pare presentar una respuesta por escrito en esta corte y hacer que se entregue une copia al demandante. Una carta o una ilamade telefonica no to Protegen. Su respuesta par escrito tiene que estar en formato legal corracto si desea que procesen su caso en a corte. Es posible que haya un formulario que usted puada user para su respuasta. Puede encontrar estos formularios de la corte y mas informacién en al Centro de Ayuda de las Cortes de California (www. sucorte.ca.gov), en la biblioteca de leyes de su condads o an ia corte que fe quede mas carca. Si no puede pagar fa cols de presentacién, pida al secratario de Ia corte que le dé un formulario de axencion de pago de cuotas. Sino presenta su respueste a Wempo, puede perder el caso por incumplimiento y fe corte le pooré quiler su susido, dinero y bienes sin mas advertencia. Hay olros requisites legates. Es recomandabla que ilame a un abogado inmediatamente. Sino conoce @ un abogada, puade llamar a un servicio da remision a abogados. Sino puede pagar a un abogado, es posible que cumpla con fos requisitos para obtener servicios legates gratultos da un Programa de servicios legales sin fines de {ucro, Puede encontrar estos grupos sin fires de tucro en ol sitio web de Caltfornia Lagal Services, (veww.lawhelpcalifornia.org), en ef Centro de Ayuda de fas Cortes de Califomia, (www. sucorte.ca.gov) 0 paniéndose en contacta con Ia corte o ef colegio de abogados locales, AVISO; Por ley, Ia corte tiene derecho a reclamar ias cuotas Y los costes exentas por imponer un gravemen sobre cualquier recuperacién da $10,000 6 mds da valor racibida mediante un acuerdo o una concasién de arbitraje en un caso de derecho civil. Tiena que pagar el gravamen de fa corte antes de que /a corte pueda dasechar el caso. The name and address of the court is: (El nombre y direccién de ta corte es): - Superior Court of California County of San Joaquin omx-ov-} fal T-2010- GS 180 E. Weber Ave, Suite 200, San Joaquin, CA 95202 The name, address, and telephone number of plaintiff's attorney, or plaintiff without an attorney, is: . (Et nombre, Ja direceién y ef nimaro de teléfona def abogado del demandante, o def demandante que no tiena abogado, es): Michelle Lunde, 1550 Humboldt Road, Suite 4, Chico, CA 95928 530-815-0766 ENEDINA LISITSIN OATE: JAN 25 2018: Car BUNGLES ay (Adjunto) (For proof of service of this summons, use Proot of Sarvice of Summons (farm POS-010).) (Para prueba de entrega de esta citation use ef formulario Proof of Service of Summons, (POS-010)). pea NOTICE TO THE PERSON SERVED: You are served 1, [1] as an individual defendant. 2. [__] as the person sued under the fictitious name of (specify): 3. on behalf of (spacifyj: COSTCO WHOLESALE CORPORATION KX] CCP 416.10 (corporation) [-) CCP 416.60 (minor) (CCP 416.20 (defunct corporation) (=) CCP 416.70 (conservatee) (J CCP 416.40 (association or partnership) (=) CCP 416.90 (authorized person) _ [1 other (specify): 4 TA by personal delivery on (date): 2- [~ 03 Paget ot ano tots Form Adopted (or Mandatory Use SUMMONS ‘Coda of CW Procedure §§ 412.20, 465 Judicial Couned of Caitfamnta SUM-100 [Rov. July 2, 2608] wewu.catutiato.ca.govCase 2:18-cv-00454-MCE-KJN Document 1 MICHELLE M. LUNDE, (SBN 246585) LAW OFFICES OF MICHELLE M. LUNDE 1550 Humboldt Road, Suite 4 Chico, CA 95928 Telephone: (530) 815-0766 Facsimilie: (530) 592-3865 Email: michellelunde@gmail.com PATRICIA A. SAVAGE, (SBN 236235) LAW OFFICES OF PATRICIA A. SAVAGE 1550 Humboldt Rd., Ste. 4° Chico, CA 95928 Telephone: (530) 809-1851 Facsimile: (530) 592-3865 Email: psavesq@gmail.com Attorneys for KAMLESH KRISHNA Filed 03/01/18 Page 11 of 62 FILED Taig JAN 25. PH AZ: 12 RGegeSOR RATE at Berult. THIS CASE HAS BEEN ASSIGNED qT JUDGE ELIZABETH HUMPHREYS iN DEPARTMENT 16C FO; INCLUDING TRIAL" PURPOSES, SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN JOAQUIN KAMLESH KRISHNA, PLAINTIFF v. COSTCO WHOLESALE CORPORATION and DOES 1-5. DEFENDANT. Case No. om-ov- lal’ 2018~ AGG PLAINTIFF KAMLESH KRISHNA’S COMPLAINT FOR DAMAGES Race Discrimination Race Harassment Retaliation Failure to Prevent Discrimination, Harassment and Retaliation 5. Wrongful Termination in Violation of Public Policy 6. Negligent Infliction of Emotional Distress 7. Intentional Infliction of Emotional Distress . PONr DEMAND FOR JURY TRIAL PLAINTIFF KAMLESH KRISHNA (“PLAINTIFF” or “KRISHNA”, respectfully submits the Verified Complaint for Damages against Defendant COSTCO WHOLESALE 1 PLAINTIFF KAMLESH KRISHNA’S COMPLAINT FOR DAMAGES Michelle M. Lunde, Esq. Patricia A. Savage, Esq.Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 12 of 62 CORPORATION and DOES 1-50, (“Defendant” or “COSTCO”) and Demand for Jury Trial and alleges as follows: I. INTRODUCTION f., ‘This case arises out of unlawful employment practices, including racial discrimination and wrongful termination in violation of the California Fair Employment and Housing Act, Section 12940 et seq. Plaintiff KAMLESH KRISHNA was a member of a protected class, was qualified for his position and was discharged and/or replaced by a person outside of the protected class. Further, Defendant COSTCO (“Defendant”), created and/or knowingly permitted intolerable and aggravated working conditions, which compelled and resulted in Plaintiff's discharge. I._ JURISDICTION AND VENUE 2. Pursuant to Code of Civil Procedure Section 395(a), venue is proper in this Judicial district because the injury to the Plaintiff occurred in the County of San Joaquin. Defendant maintains a business in the County of San Joaquin, employed the Plaintiff in the County of San Joaquin, and/or transact business in the County of San Joaquin and are within the jurisdiction of this Court. The monetary claims of Plaintiff are within the jurisdiction of this court. il. THE PARTIES 3. Plaintiff, a competent adult, was at various times herein relevant, an employee of the Defendant, commencing on or about 2004, and continuing until about June 28, 2017 at the | Defendant’s Tracy, California location when Defendant terminated him without notice. 4, Through the date of his termination Plaintiff met the work standards required by Defendant: 5. Plaintiff is informed and believes and thereon alleges that Defendant is a Washington-based corporation operating in the County of San Joaquin, wherein the alleged acts occurred and the obligations incurred, and was the employer of the Plaintiff. . 2 Michelle M. Lunde, Esq. PLAINTIFF KAMLESH KRISHNA’S COMPLAINT Patricia A. Savage Est FOR DAMAGESCo wm InN A Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 13 of 62 6. Defendant DOES 1 through 5, are owners, operators, managers, subsidiaries of, or owned entities of Defendants or persons otherwise responsible for paying the damages alleged herein. Plaintiff is ignorant of the true names, capacities, relationships and extent of participation in the conduct herein alleged, of the Defendants sued herein as DOES | through 5, inclusive, and therefore sues these Defendants by such fictitious names. Plaintiff will amend this Complaint to allege the true names and capacities of the DOE Defendants when ascertained. 7. Plaintiff is informed and believes, and thereon alleges, that at all times herein relevant, each of the Defendant’s and their employees, whether specifically named, designated as a DOE, or otherwise identified was the agent, servant and employee of each of the remaining co- Defendants and, in doing the things herein alleged, was acting within the course and scope of said agency, employment and service with the advanced knowledge, consent and ratification of each of the remaining Defendants. 8. COSTCO also professes to foster an environment that supports racial equality and prevents discrimination. . 9. KAMLESH KRISHNA, a man of Asian Indian descent, a husband and father of two, has provided services for COSTCO in the Tracy area for more than 12 years, and previously worked in Canada for eight years. KRISHNA’S work in Canada took place without incident. However, his work in Tracy was far from trouble free, due to repeated incidents of racial harassment, discrimination, related disparate treatment and retaliation. 10. KRISHNA was called “camel man,” by co-workers, who stated that he must be conspiring with other co-workers of Indian descent to steal. KRISHNA was accused of sexual harassment, after he gave a shoulder rub to an older, male employee a shoulder rub after the man had requested it. He was suspended for three days, although he was told the incident did not constitute sexual harassment or unwanted touching. As a result, he was also demoted from his preferred position as in Inventory Auditor to work in hot dog production. He was also told that he could no longer use the front door, or eat in the same lunch room as others. 11]. KRISHNA complained in writing on September 12, 2016 to Human Resources that he felt he was being treated differently because of his race, but nothing changed. 3 Michelle M. Lunde, Esq. PLAINTIFF KAMLESH KRISHNA’S COMPLAINT Patricia A. Savage, Esq. FOR DAMAGES :oO YN A WH eh wD 10 Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 14 of 62 12. Again, on June 14, 2017, KRISHNA complained in writing again that he had been “racially harassed” on a “daily basis.” The second letter detailed how he was asked if people could expect car bombs from him, asked why he didn’t wear a turban, and told “all Hindus stink.” Again, nothing changed. 13. In a third complaint, addressed directly to the president and CEO of COSTCO, KRISHNA touted his long term employment and excellent work record, and stated his previous complaints regarding racial discrimination and retaliation were ignored. He stated he complained to three supervisors and written letters about it. Some of the people mentioned in his complaints were the same people who asserted he was involved in a theft of some money from a collection being taken up for a co-worker. KRISHNA knew he was being framed, but was powerless to stop it, 14. | KRISHNA was interviewed by sheriff's deputies on that day, much to his humiliation, and offered to take a lie detector test and help law enforcement however he could. KRISHNA directly noted that he was being harassed and retaliated against. The treatment at COSTCO cause KRISHNA chest pains which sent him to the emergency room. KRISHNA stated he had plans to retire with COSTCO, and asked them to address the situation. He never received a response. IV. ALLEGATIONS FIRST CAUSE OF ACTION (RACE DISCRIMINATION/NATIONAL ORIGIN) Government Code §12940(a) (Plaintiff against each Defendant) 15. The allegations set forth in this complaint are hereby re-alleged and incorporated by reference. . 16. At all times relevant to this matter, the Fair Employment and Housing Act and California Government Code Section 12940 were in full force and effect and binding on Defendants. PLAINTIFF was subjected to unwanted discriminatory conduct because of his race, in which he was demoted, denied promotions and subjected to-ongoing humiliation, and given work assignments below his experience level, capabilities and training. This discriminatory 4 Michelle M. Lunde, Esq. PLAINTIFF KAMLESH KRISHNA’S COMPLAINT Patricia A Savage, Esq, FOR DAMAGES,Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 15 of 62 conduct was conducted by PLAINTIFF’s supervisors and peers who created an environment that, among other things, tolerated and encouraged discrimination against PLAINTIFF based on his race. The conduct on the part of Defendants complained of herein represent a violation of California Government Code section 12940(a). 17. Throughout PLAINTIFF’s employment, beginning in 2004 and continuing to the present time, PLAINTIFF has been harmed in the form of lost income, business opportunities and suffered severe emotional distress because of Defendant’s actions which were motivated by race discrimination. Defendant’s actions were a substantial factor in causing PLAINTIFF harm. 18. As a proximate result of the aforementioned violations, PLAINTIFF has been damaged in an amount according to proof, but in an amount in excess of the jurisdiction of this Court. PLAINTIF also secks “affirmative relief” or “prospective relief” as defined by Government Code §12926(a), including back pay, reimbursement of out of pocket expenses, expungement of records and any such other relief that this Court deems proper. 19. The above described actions were perpetrated and/or ratified by a managing agent(s) and/or officers of Defendant. These acts were done with malice, fraud, oppression, and in reckless disregard of PLAINTIFF’s tights. Further, said actions were despicable in character and warrant the imposition of damages, attorneys’ fees and costs. Wherefore, PLAINTIFF requests relief as hereinafter prayed for. SECOND CAUSE OF ACTION (RACE HARASSMENT) Government Code §12940(j) (Plaintiff against each Defendant) 20. ‘The allegations set forth in paragraphs above are hereby re-alleged and incorporated by reference. 21, Atall times relevant to this matter, the Fair Employment and Housing Act, California Government Code section 12940 et seq. was in full force and effect and binding on Defendant. Defendant violated the law by subjecting PLAINTIFF to unwanted harassing conduct because of his race. Michelle M. Lunde, Esq. PLAINTIFF KAMLESH KRISHNA’S COMPLAINT Patrici FOR DAMAGES . atricia A. Savage, Esq.Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 16 of 62 22. As set forth above, during PLAINTIFF’s employment with Defendants, he was subjected to a hostile work.environment in which PLAINTIFF was subjected to unwanted harassing conduct because of his race, in which he was demoted, denied promotions and subjected to ongoing humiliation, given work assignments below his credentials, capabilities and training. This discriminatory conduct was conducted by PLAINTIFF’s supervisors and peers who created an environment that, among other things, tolerated and encouraged harassment against PLAINTIFF based on his race. This harassing conduct permeated the workplace and affected the terms and conditions of PLAINTIFF’s employment. PLAINTIFF found the , atmosphere to be both offensive and demeaning. 23. A reasonable person in PLAINTIFF’s circumstances would have considered the work environment to be hostile or abusive. The environment of harassment was severe and pervasive. 24. Defendants knew or should have known of the conduct and failed to take all reasonable steps to prevent and redress discrimination and harassment against PLAINTIFF. Defendant’s conduct violated Government Code section 12940(j) and Title 2 of the California Code of Regulations §§ 7287.6 and 7287.7. 25. Asa proximate result of the aforementioned violations, PLAINTIFF has been damaged in an amount according to proof, but in an amount in excess of the jurisdiction of this Court. PLAINTIFF also seeks “affirmative relief’ or “prospective relief” as defined by Government Code section 12926(a), including back pay, reimbursement of out of pocket expenses, expungement of records and any such other relief that this Court deems proper. 26. The above described actions were perpetrated and/or ratified by a managing agent(s) and/or officers of Defendant. These acts were done with malice, fraud, oppression, and in reckless disregard of PLAINTIFF’s rights. Further, said actions were despicable in character and warrant the imposition of damages, attorneys’ fees and costs. Wherefore, PLAINTIFF requests relief as hereinafter prayed for. ror oe : / / / . Michelle M. Lunde, Esq. PLAINTIFF KAMLESH KRISHNA’S COMPLAINT Patricia A. Savage, Est FOR DAMAGESco OP YN DWH PB wWwN Bos Case 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 17 of 62 THIRD CAUSE OF ACTION (RETALIATION) Government Code §12940(h) (Plaintiff against each Defendant) 27. The allegations set forth in this complaint are hereby re-alleged and incorporated by reference. 28. — Atall times relevant to this action, the Fair Employment and Housing Act (“FEHA”) and California Government Codes sections 12940 et seq., were in full force and effect and binding on the Defendant. The statements and conduct on the part of the Defendant complained of herein represent a violation of FEHA, as codified in California Government Codes sections 12940 et seq. 29. At all relevant times herein, PLAINTIFF engaged in protected activity by complaining about race discrimination to Defendant and the Department of Fair Employment and Housing. PLAINTIFF’s activities were protected activities pursuant to Government Code section 12940(h). 30. Plaintiffs internal complaints regarding racial discrimination resulted in retaliatory actions. This includes, but is not limited to, the fact that approximately two weeks. after complaining about race discrimination internally, PLAINTIFF was retaliated against, by being terminated on a pretext. 31. PLAINTIFF’s protected activities were a motivating reason for Defendant’s decision to demote and deny PLAINTIFF promotions. 32. | PLAINTIFF has lost income, business opportunities and suffered severe emotional distress because of Defendant's actions. 33. Defendant’s retaliatory conduct was a substantial factor in the causing harm to PLAINTIFF. 34. Asa proximate result of the aforementioned violations, PLAINTIFF has been damaged in an amount according to proof, but in an amount in excess of the jurisdiction of this Court. PLAINTIFF also seeks “affirmative relief” or “prospective relief” as defined by Michelle M. Lunde, Esq, PLAINTIFF KAMLESH KRISHNA’S COMPLAINT Patricia A, Savage, Ese FOR DAMAGESCase 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 18 of 62 Government Code section 12926(a), including back pay, reimbursement of out of pocket expenses, expungement of records and any such other relief that this Court deems proper. 35. The above described actions were perpetrated and/or ratified by a managing agent(s) and/or officers of Defendant. These acts were done with malice, fraud, oppression, and in reckless disregard of PLAINTIFF’s rights. Further, said actions were despicable in character and warrant the imposition of exemplary and punitive damages, attorneys’ fees and costs. Wherefore, PLAINTIFF requests relief as hereinafter prayed for. , FOURTH CAUSE OF ACTION (FAILURE TO PREVENT DISCRIMINATION, HARASSMENT AND RETALIATION) Government Code §12940(k) (Plaintiff against each Defendant) 36. The allegations set forth in this complaint are hereby re-alleged and incorporated by reference. 37. Asan employer, pursuant to Government Code section 12926(d), Defendant has a duty to prevent unlawful harassment and discrimination, including retaliation. Defendant knew or should have known about the discrimination, harassment, and retaliation based on PLAINTIFF’s protected status and activities in relationship to opposing discriminatory policies. 38. Defendant failed to implement adequate training, policies, monitoring, or instructions that would have prevented the aforementioned discrimination, harassment, and retaliation. Defendant's breach of this important duty resulted in harm to PLAINTIFE. Accordingly, Defendant violated Government Code section 12940(k), Title 2 of the California Code of Regulations § 7287.6(b)(3). 39. Asa proximate result of the aforementioned violations, PLAINTIFF has been damaged in an amount according to proof, but in an amount in excess of the jurisdiction of this Court. PLAINTIFF also seeks “affirmative relief” or “prospective relief” as defined by Government Cade section 12926(a), including back pay, reimbursement of out of pocket i : expenses, expungement of records and any such other relief that this Court deems proper. 8 Michelle M. Lunde, Esq. PLAINTIFF KAMLESH KRISHNA’S COMPLAINT Patricia A. sane Est, FOR DAMAGESCase 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 19 of 62 40. The above described actions were perpetrated and/or ratified by a managing agent(s) and/or officers of Defendant, These acts were done with malice, fraud, oppression, and in reckless disregard of PLAJNTIFF’s rights. Further, said actions were despicable in character and warrant the imposition of general and special damages, attorneys’ fees and costs. . Wherefore, PLAINTIFF requests relief as hereinafter prayed for. FIFTH CAUSE OF ACTION WRONGFUL ‘TERMINATION IN VIOLATION OF PUBLIC POLICY ‘ (Plaintiff against each Defendant) 41. The allegations set forth in this complaint are hereby re-alleged and incorporated by reference. At all times relevant, PLAINTIFF was an employee of Defendant, and Defendant was PLAINTIFF’S employer. 42. Plaintiff is informed and believes and thereon alleges that such actions by the Defendant were because of his race or the desire of Defendant to discriminate against similar employees as a group, or that the Plaintiff's race was an impermissible factor in the Defendant’s action. : 43. Defendant’s conduct breached the public policy of the State of California, in that an employer must notify and advise all covered employees in writing of any discontinuation of coverage for medical, surgical or hospital benefits, under Labor Code Section 2806. Further, it is public policy that employers, such as Defendant, not use an employee's race or national origin in auy employment decision. : 44, Defendant violated fundamental public policy in the State of California that employees be free from unlawful harassment, discrimination and retaliation. 45. Asa direct and proximate result of the Defendants unlawful conduct and discrimination, Plaintiff has suffered general and special damages, including, but not limited to: loss of wages, benefits, and additional amounts of money Plaintiff would have received if he had been retained as an employee of Defendant. Michelle M, Lunde, Esq. PLAINTIFF KAMLESH KRISHNA’S COMPLAINT Patricia A. Savage ES, FOR DAMAGESCase 2:18-cv-00454-MCE-KJN Document1 Filed 03/01/18 Page 20 of 62 46. Asa further direct and proximately result of Defendant’s unlawful conduct, Plaintiff has suffered inconvenience, humiliation, mental anguish and emotional distress in an amount according to proof. 47. The Defendants have acted despicably with a willful and conscious disregard of the rights of the Plaintiff, subjecting Plaintiff to unjust hardship and suffering. Therefore, Plaintiff is entitled to recover punitive and exemplary damages from the Defendant in an amount to be proven at trial. , Wherefore, Plaintiff requests relief as hereinafter prayed for. SIXTH CAUSE OF ACTION (NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS) (Plaintiff against each Defendant) 48. The allegations set forth in this complaint are hereby re-alleged and incorporated by reference. 49. | DEFENDANT’s repeated failure to respond to PLAINTIFF’s repeated pleas to address a racially hostile and retaliatory environment, exceeds the bounds of decency, is intolerable within our civilized community, and is therefore outrageous. 50. By negligently allowing behavior as outrageous as discussed supra and by failing | to investigate his harassment claims, while allowing retaliation against him — in the form of a theft complaint which was handled in a discriminatory fashion, and by allowing disparate treatment to continue — Plaintiff was caused emotional distress. © 51. DEFENDANT caused PLAINTIFF to suffer extreme emotional distress, as indicated by the lingering anxiety, shame, and fear for his personal safety that are the direct and proximate results of DEFENDANT’s conduct. 52. Asa proximate result of the aforementioned violations, PLAINTIFF has been damaged in an amount according to proof. Further, said actions were despicable in character and warrant the imposition of punitive damages in a sum sufficient to punish and to deter DEFENDANT from such conduct in the future. Wherefore, Plaintiff requests relief as hereinafter prayed for. “ 10 . Michelle M. Lund PLAINTIFF KAMLESH KRISHNA’S COMPLAINT Pavicia A Savage, Ee FOR DAMAGESCase 2:18-cv-00454-MCE-KJN Document 1 Filed 03/01/18 Page 21 of 62 SEVENTH CAUSE OF ACTION (INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS) (Plaintiff against each Defendant) 53. The allegations set forth in this complaint are hereby re-alleged and incorporated by reference. 54, DEFENDANT’s treatment of PLAINTIFF as discussed supra, exceeds the bounds of decency, is intolerable within our civilized community, and is therefore outrageous. 55. By allowing other employees to continue to call PLAINTIFF “camel man”, state that “all Hindus smell bad” and make accusations that he and others of similar descent were engaged in theft, and by causing the police to investigate him as an alleged thief, DEFENDANT intended to cause PLAIN