Judge: Stephen P. Pfahler, Case: 22STCV21275, Date: 2024-05-09 Tentative Ruling

Case Number: 22STCV21275    Hearing Date: May 9, 2024    Dept: 68

DEMURRER TO THE COMPLAINT

MOVING PARTY: Defendant, Confluent, Inc.

RESPONDING PARTY: Plaintiff, Ava Naeini

RELIEF REQUESTED:

Demurrer to the Fourth Amended Complaint

·         6^th Cause of Action: Harassment in Violation of Gov’t Code 12940, et seq.

·         7^th Cause of Action: Retaliation in Violation of Gov’t Code 12940 et seq.

·         8^th Cause of Action: Wrongful Constructive Termination in Violation of Public Policy

·         9^th Cause of Action: Discrimination in Violation of Government Code section 12940, et. seq.

·         11^th Cause of Action: Breach of Covenant of Good Faith and Fair Dealing

·         14^th Cause of Action: Workplace Harassment

Motion to Strike

New Allegations

·         “Status and Demand for Justice” page 3-4

·         “Summary” page 4-10; o Exhibits 1 through 5 found on page 74 to 96

·         Sixth Cause of Action

·         Seventh Cause of Action

·         Eighth Cause of Action

·         Ninth Cause of Action

·         Eleventh Cause of Action

·         Fourteenth Cause of Action

Previously Struck and Re-Incorporated Allegations

·         16 at page 84 “PLAINTIFF alleges that the work environment abuse that created severe health issues mentioned above is the result of inability in the DEFENDANTS and the leadership to understand basic human needs such as rest, sleep, nutritious food, and a healthy lifestyle during one year and a half of employment.”

·         18 at page 84 “Upon hiring they knew Plaintiff was an Iranian Muslim, and they had understanding of practices and halal food, but customers were hostile towards small breaks and project management was nonexistent.” 22 at page 85.

·         “E.G. Chris Urban who had 0 technical background joined with a few others to create the innovation org and never shared that with PLAINTIFF who actually worked on an innovative project.”

·         24 at page 85 “Narcissistic men would take the energy of women and step on them when they were done.”

·         24 at page 86 “Customers such as JPL and UWM mortgage were abusive and angry from the beginning due to lack of transparency in the company sales or technical process.” 24 at page 86.

·         “Other customer leads such as Jameel Chaudhary, General Manager at Sigma Systems clearly stated to Plaintiff during her engagement. ‘There needs to be more transparency in the sales process to improve the decision-making during onboarding’ a fact she sympathized with.”

·         24 at page 86 “the company staff lacked technical knowledge and professional services were passive, and ineffective with no repercussions even when management was made aware.”

·         26 at page 86. “during certain customer engagements, Plaintiff was the face and the voice onsite and fully in charge while she wasn't even being acknowledged or considered in any decisions were being made internally post or pre engagements and this impacted her growth, the ability to make a decision on projects she was working on was 0.”

·         28 at page 87 “in cases that she shined like Sigma Systems whereas certain employees, co-workers and management people sabotaged it, due to jealousy, personal fear of women, lack of confidence, lack of proficiency in the field and academic background needed to be successful that they didn’t possess. Again, due to the fact that project managers were ineffective, not skilled enough and still try to control, and stay in a field they were not able to perform at. All the project managers were of American and white descent, which says a lot about how non inclusive they were.”

·         29 at page 87- 88 “Vaibhav told her we should give this project to someone else, if you haven’t finished it in 6 months, you probably can’t do it. He didn’t even understand the scope due to his poor knowledge. He would make bogus comments that showed his inability to think clearly, read properly, learn new tech and utilize his brain in a useful manner instead he would doubt and character sabotage from time to time and form Hindu mafias with his fellas to attack Plaintiff.”

·         29 at page 88 “In particularly most Hindus on the team, would hide technical information and make situations awkward and share information among themselves to the exclusion of others on a regular and ongoing basis.”

·         29 at page 88 “Everyone was given time except PLAINTIFF. It all started by Carol since she was very unhappy, felt powerless and often complained about her own responsibilities so she chose to grow the team by hiring only people from India to stay in her comfort zone, control others using men from her culture to shift the culture in the hope of growing her base and influence which she miserably failed at and ended up leaving the team right after PLAINTIFF was terminated.”

·         30 at page 88- 89 Allegations include, “simple Hindu family;” “proof of broken Hindu culture;” “an American girl who lived on a farm with cows and didn’t have the same caliber and education background;” “lacked mental stability.”

·         31 at page 89- 90 Allegations include, “manager puppets in a show;” “Carol Patel along with many others and with their small minds … she didn’t know what she was doing;” “Carol has multiple personality disorder;” “she has a sexual disorder and that led to her lack of mental stability.”)

·         32 at page 90 “In another instance, an idea called ‘Confluent Incubator’ that she came up to fix a lot of customer and communication issues got blocked by the project manager Kirby Frank due to his jealousy and lack of technical knowledge.”

·         32 at page 91 “candidate week long paid time off was rejected again repeatedly while the company had unlimited paid time off policies, and she brought that to the human resources Preeya Patel that she needs time off, and she is tired and has back pains and her birthday is approaching.”

·         32 at page 91 “Carol said ‘Oh you are at that stage’ meaning she knew the physical sacrifice and what long hours of flight and lack of sleep would do to your body, but she chose to still torture PLAINTIFF by arguing and rejecting her week-long time off passive aggressively.”

·         33 at page 91 “Three of them Vaibhav Mathur, Carol Patel and Preeya Patel created a non-inclusive Indian mafia….”

·         38 at page 92- 93 “she was never part of Sales calls as Carol and him preferred to hold their power by blocking her working in a cross-functional role to limit her growth, and visibility despite the fact that both lacked technical knowledge to a huge degree which led to mistakes like this.” 38 at page 93. “Customer environments were very hostile due to product flaws and lack of proper support or services that led to many to quit after she was let go.”

·         38 at page 93. “Lack of proper supervision and teamwork in situations that demanded more than one person physically and mentally. Ignoring PLAINTIFF's voice to a degree that the person feels invisible. Bad morals, when Mirko Kimpf copied and presented her work to the company without her consent when she was off for two days, despite clear boundaries that were set just to know, Carol Patel and Alex Loddengard are supporting a thief.”

·         38 at page 95. “while it was merely a projection of others’ jealousy, greed, inferior complexity, fear, shame, inability to learn and cope with her life. The company perpetuated patterns of greed despite a net worth of 4.5 billion today.”

SUMMARY OF ACTION

Plaintiff Ava Naieini, alleges gender, ethnic and religious discrimination as an Iranian, Muslim female working in computer/software technology consulting. Plaintiff maintains management responsible for the series of events leading to the subject action is the result of their “love of alcohol and impaired judgment, or hidden sexual and mental disorders that lead to lower level of awareness, understanding and judgment where subordinates have to quit, or suffer and tolerate oppression.” Said behavior was also apparently as a means of disguising technical incompetence and narcissism. The complaint includes denied time off, payment for only economy class seats “with not enough legroom” on extensive “coast to coast” flights.

Plaintiff represents to obtain counsel, but due to “national origin, racial battles in the country and the subconscious bias of the majority of bias of the majority of attorney that do not yet acknowledge systematic issues as shifts have not occurred yet” leads to lawyers refusal to take on the subject action. Plaintiff also contends improper legal rulings striking out prior iterations of the complaint and unfair treatment of Plaintiff in pro per has allowed Defendant to effectively block any discovery over the last 15 months of attempting to prosecute the subject action.

On June 29, 2022, Plaintiff, in pro per, filed a complaint for 1. Economic Duress 2. Intentional Infliction of Emotional Distress 3. Negligent Infliction of Emotional Distress 4. Discrimination in Violation of Gov’t Code 12940 Et Seq. 5. Harassment In Violation of Gov’t Code 12940, et seq. 6. Retaliation in Violation of Gov’t Code 12940 et seq. 7. Failure to Prevent Discrimination, Harassment and Retaliation in Violation of Gov’t Code 12940(K) 8. Wrongful Constructive Termination in Violation of Public Policy 9. Defamation 10. Breach of Covenant of Good Faith And Fair Dealing 11.False Promises 12.Promissory Fraud 13.Negligence 14.Negligent Misrepresentation 15.Negligent Retention Of Employees. On August 29, 2022, Plaintiff, in pro per filed a first amended complaint for 1. Economic Duress 2. Recission of Contract 3. Intentional Infliction of Emotional Distress 4. Negligent Infliction of Emotional Distress 5. Failure to Prevent Harassment, Discrimination, or Retaliation in Violation of Government Code section 12940 6. Harassment In Violation of Gov’t Code 12940, et seq. 7. Retaliation in Violation of Gov’t Code 12940 et seq. 8. Wrongful Constructive Termination in Violation of Public Policy 9. Discrimination in Violation of Government Code section 12940, et. seq. 10. Defamation 11. Breach of Covenant of Good Faith and Fair Dealing 12. Negligence 13. Negligent Supervision of Employees 14. Workplace Harassment.

On October 6 and 10, 2022, the case was transferred from Department 32 (personal injury) to independent calendar court, Department 68.

On November 23, 2022, the court sustained the unopposed demurrer of Defendant to the first amended complaint with 60 days leave to amend. The court also granted the unopposed motion to strike with 60 days leave to amend. Although Plaintiff submitted a proposed second amended complaint on November 14, 2023, the court declined to consider the second amended complaint at the time of ruling on the demurrer. On November 30, 2022, Plaintiff filed a second amended complaint for 1. Economic Duress 2. Recission of Contract 3. Intentional Infliction of Emotional Distress 4. Negligent Infliction of Emotional Distress 5. Failure to Prevent Harassment, Discrimination, or Retaliation in Violation of Government Code section 12940 6. Harassment In Violation of Gov’t Code 12940, et seq. 7. Retaliation in Violation of Gov’t Code 12940 et seq. 8. Wrongful Constructive Termination in Violation of Public Policy 9. Discrimination in Violation of Government Code section 12940, et. seq. 10. Defamation 11. Breach of Covenant of Good Faith And Fair Dealing 12. Negligence 13. Negligent Hiring and Supervision of Employees 14. Workplace Harassment.

On March 21, 2023, the court ruled on the demurrer to the 92 page second amended complaint: the court sustained the demurrer to the third, fourth, fifth, sixth, twelfth and thirteenth causes of action for Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, Failure to Prevent Harassment, Discrimination, or Retaliation in Violation of Government Code section 12940, Negligence, and Negligent Hiring and Supervision of Employees, Harassment In Violation of Gov’t Code 12940, et seq., without leave to amend; and, sustained the demurrer to the seventh, eighth, tenth, eleventh, and fourteenth causes of action for Retaliation in Violation of Gov’t Code 12940 et seq., Wrongful Constructive Termination in Violation of Public Policy, Defamation, Breach of Covenant of Good Faith And Fair Dealing, and, Workplace Harassment, with 20 days leave to amend. The court granted the motion to strike Punitive Damages with leave to amend, and the Demand to Recover for Spine Injuries and the Like and Irrelevant and Improper Statement without leave to amend.

On September 14, 2023, Plaintiff in pro per filed a third amended complaint for 1. Economic Duress 2. Recission of Contract 3. Intentional Infliction of Emotional Distress 4. Negligent Infliction of Emotional Distress 5. Failure to Prevent Harassment, Discrimination, or Retaliation in Violation of Government Code section 12940 6. Harassment In Violation of Gov’t Code 12940, et seq. 7. Retaliation in Violation of Gov’t Code 12940 et seq. 8. Wrongful Constructive Termination in Violation of Public Policy 9. Discrimination in Violation of Government Code section 12940, et. seq. 10. Defamation 11. Breach of Covenant of Good Faith and Fair Dealing 12. Negligence 13. Negligent Hiring and Supervision of Employees 14. Workplace Harassment, with strikeouts on the first, second, third, fourth, fifth, twelfth, and thirteenth causes of action. The third amended complaint lacks page numbering, but totals 87 pages.

On the November 14, 2023, hearing on the demurrer to the third amended complaint, the court first noted the lack of pagination and ordered compliance with California Rules of Court, rule 2.109. On the substance, the court considered an argument under the statute of limitations, whereby the court found all challenged claims other than the tenth cause of action for defamation were timely filed and relate back to the original complaint filing date. The court sustained the demurrer to the tenth cause of action for defamation without leave to amend on grounds of the statute of limitations. On the remainder of the operative complaint, the court found no material changes to the previously challenged cause of action, and sustained the demurrer with leave to amend to the seventh, eighth, ninth, eleventh, and fourteenth causes of action for Retaliation in Violation of Gov’t Code 12940 et seq., Wrongful Constructive Termination in Violation of Public Policy, Discrimination in Violation of Government Code section 12940, et. seq., Breach of Covenant of Good Faith and Fair Dealing, and Workplace Harassment. The court also granted the motion to strike the claim for punitive damages, demand to recover for spine injuries and the like, and irrelevant and improper Statement without leave to amend.

On January 16, 2024, Plaintiff, in pro per, filed a fourth amended complaint for 1. Economic Duress 2. Recission of Contract 3. Intentional Infliction of Emotional Distress 4. Negligent Infliction of Emotional Distress 5. Failure to Prevent Harassment, Discrimination, or Retaliation in Violation of Government Code section 12940 6. Harassment In Violation of Gov’t Code 12940, et seq. 7. Retaliation in Violation of Gov’t Code 12940 et seq. 8. Wrongful Constructive Termination in Violation of Public Policy 9. Discrimination in Violation of Government Code section 12940, et. seq. 10. Defamation 11. Breach of Covenant of Good Faith and Fair Dealing 12. Negligence 13. Negligent Hiring and Supervision of Employees 14. Workplace Harassment, with strikeouts on the first, second, third, fourth, fifth, tenth, twelfth, and thirteenth causes of action. The fourth amended complaint totals 72 pages of allegations, with 39 pages of new exhibits including “exhibit 4” and “exhibit 5” constituting the “Defendants” section in paragraphs 1-11 and the “factual background” section in paragraphs 13-41, which are not incorporated into the introductory paragraphs of the operative complaint.

On January 10, 2024, the court sent notice of case reassignment to the new judicial officer. The court held a case management conference on March 7, 2024. Plaintiff was present; Defendant was not. On April 22, 2024, Plaintiff, in pro per, filed a 170.6 peremptory challenge, which was rejected on April 23, 2024, as untimely. On April 24, 2024, Plaintiff in pro per, filed a 170.1/170.3 challenging impartiality, asserting a lack of qualification, and maintain a violation of the law. On April 29, 2024, the court issued an order striking the statement of disqualification. The court electronic filing system shows no writ of mandate filed within the presented challenge period.

RULING

Demurrer: Sustained with Leave to Amend.

Defendant Confluent, Inc. (Confluent) brings a demurrer to the sixth, seventh, eighth, ninth, eleventh, and fourteenth causes of action for Harassment in Violation of Gov’t Code 12940, et seq., Retaliation in Violation of Gov’t Code 12940 et seq., Wrongful Constructive Termination in Violation of Public Policy, Discrimination in Violation of Government Code section 12940, et. seq., Breach of Covenant of Good Faith and Fair Dealing, and Workplace Harassment. Confluent maintains the operative complaint continues to lack facts after four attempts and three rulings finding insufficient facts. Confluence also raises argument on ground of failure to exhaust administrative remedies and the statute of limitations.

Plaintiff in opposition appears to have copied portions Confluent’s points and authorities in support of the demurrer, with graphical lines and interlineations, including arrows and “x” marks offering statements apparently disagreeing with the presented argument and accusing confluent of improper conduct both at the office and in legal proceedings. On April 30, 2024, four calendar days and two court days later than the opposition due date, Plaintiff filed an “amended opposition” to the demurrer and motion to strike. The non-paginated 281-page pleading consists of 15 pages of argument, and 266 pages of exhibits, and an amended declaration summarizing the proceedings and opinions of Plaintiff. On the same date, Plaintiff also filed a notice of errata and correction. This submission constitutes a paginated document opening with a purported submission of a complaint to the Commission of Judicial Performance as to the “former Judge,” and a summary of outstanding discovery and other conduct precluding the presentation of facts regarding the state of the pleadings. Plaintiff also asserts perjury to the court by Confluent.

The amended opposition was filed on the same date as Confluent filed two notices of non-opposition to the demurrer and motion to strike. Confluent also cites to the “three-limit rule” for amended pleadings as grounds for sustaining the demurrer without leave to amend and the motion to strike with prejudice.

On May 1, 2024, Plaintiff filed a response to the notice of non-opposition. Plaintiff challenges the “baseless claims” of the demurrer, and requests the court consider the opposition on the merits.

On the substantive argument, within both the amended opposition and notice of corrected opposition, Plaintiff maintains Confluent continues to “hide evidence,” the “former judge” was “negligent” due to a “financial interest in extending the proceedings,” thereby encouraging further abusive, repetitive legal process without justice. This is in addition to the later representation of the report to the Commission on Judicial Performance. Plaintiff also asserts the court failed to consider the complaint because of in pro per status and written by a foreign national, thereby depriving Plaintiff of due process. Plaintiff then transitions to 44 individual statements including pay disparity, wrongful denial of expenses, denied time off requests, assignment of menial tasks, all said purported wrongful behavior arising from gender, national origin, religion, and a general enmity to tolerance of differing views. Plaintiff also dedicates significant pages to alleged outstanding discovery purportedly inhibiting better presentation of the claims. Again, the second opposition contains further charges of actual perjury by defense counsel to the court.

The court first notes that while Plaintiff contends unfair treatment as a pro per appearing party, the court is not required to extend special treatment to such parties. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284–1285.) Regardless, given the court now reviews the subject pleading after three prior successful challenges, where statutory authority compels a finding of an inability to state a claim after two court reviews, it appears the court has exercised careful and substantial discretion in allowing Plaintiff an opportunity to plead any and all claims. (Code Civ. Proc., § 430.41, subd. (e)(1) [“In response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times, absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action”].) The court reviews the case under the same standards as a represented party, including equal review under the law with an understanding regarding certain ignorance of legal procedure expected of a licensed attorney. (Petrosyan v. Prince Corp. (2013) 223 Cal.App.4th 587, 594.)

As for both the quantity and lateness of the filings, the court in its discretion may disregard late filed and documents exceeding page limits. In other words, the court may forego consideration of both late filed and essentially redundant sets of opposition arguments on grounds of excessive pages for points and authorities and untimeliness, in that allowing for later, extra argument against the demurrer unfairly deprives Confluent of the opportunity to timely respond. Notwithstanding these noticed issues, the court elects to consider the argument under the addressed governing public policy for parties appearing in pro per.

On the statute of limitations argument, the court previously ruled that all but one of the challenged claims were timely. The court declines to again consider the prior, overruled arguments, or any new potential statute of limitations not raised in any of the three prior challenges. The court also finds the failure to exhaust administrative remedies constitutes a new argument not previously raised. Nothing in the demurrer otherwise establishes new allegations thereby potentially supporting this argument (as opposed to seeking a motion to strike new allegations, even if applicable). Thus, the court declines to consider this argument as well. (Code Civ. Proc., § 430.41, subd. (b).) The court will therefore only address the factual sufficiency of the fourth amended complaint.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . .” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.) In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 [“[U]nder our liberal pleading rules, where the complaint contains substantive factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty should be overruled or plaintiff given leave to amend.]

The court declines to consider any release agreement or the circumstances of any execution in that it’s extrinsic to the operative complaint and therefore the demurrer standard. The court also declines to consider the 266 pages of exhibits incorporated into the amended oppositions unless expressly incorporated into the operative complaint, as such items are also extrinsic to consideration of the operative pleading.

6^th Cause of Action: Harassment in Violation of Gov’t Code 12940, et seq.

Confluent tersely contends Plaintiff lacks facts supporting a claim for sexual harassment. Plaintiff in opposition cites to purported examples of said sexual harassment. The unnumbered paragraphs under the identified cause of action essentially lists a series of comments by colleagues. The court first addresses the standard for sexual harassment.

“Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances. (Citation.) The plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's⁷ work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended.” [¶] “The factors that can be considered in evaluating the totality of the circumstances are: (1) the nature of the unwelcome sexual acts or works (generally, physical touching is more offensive than unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred.” [¶] “In determining what constitutes “sufficiently pervasive” harassment, the courts have held that acts of harassment cannot be occasional, isolated, sporadic, or trivial, rather the plaintiff must show a concerted pattern of harassment of a repeated, routine or a generalized nature.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 609–610.)

The court quotes the substantive allegations:

“During orientation, this individual followed the plaintiff around to speak to her and talked about himself the whole time. At lunch sat across from the plaintiff and harassed her about the very well known Iran global isolated situation, women’s rights, leadership and its politics as he was in the Army and participated in the Iraq war. Ms. Naeini gracefully moved on. He continued and pulled Rahul Bhattacharya towards himself and together they made an inside joke about the situation and laughed and poisoned the mood. Plaintiff turned away, couldn’t eat and didn’t feel she was surrounded by healthy individuals.”

“‘Jack of all trades master of none’ - This comment has a negative connotation and the intention behind it was belittling someone’s skills when you see someone is doing better than you, knows more than you and the individual is a woman. The person who said this is both racist and sexist and has a history of harassment in incident 1 report.”

“This individual is toxically competitive and had 0 field experience as he was very young (22 years old). When Ms. Naeini was walking down on narrow steps next to the lead and having a conversation as any two experienced staff would have he walked right into her feet with 0 space that she was about to fall and when she looked back he distanced himself but repeated this behavior. These behavioral issues are abnormal, stem from sexism, narcissism and lack of respect for women. Wisdom knows that customer site wasn’t a place for such confrontations, or a psychological therapy session so Ms. Naeini chose to maintain the professional image proper at that time.”

“‘I can handle women older than you’ with aggression after Ms. Naeini mentioned to him the girl at the register is beautiful/cute - From a conscious perspective, this is an insult to women and her age and the comment is very sexist, rude and disrespectful to one’s dignity. Ms. Naeini didn’t even know how to respond to such an offense and was frozen for the rest of the night and her nervous system was shocked by this rude individual. Clearly the narcissistic misogynistic work environment supported such offense towards women that he went this far to insult a FOURTH AMENDED COMPLAINT 38 woman older than him that mentored him for calling another woman beautiful. This person should be fired.”

“‘Why are you at the happy hour and not at work’ This malicious individual interrupted the plaintiff's conversations and prior to that this same person refused to engage in in-depth technical conversations rather talked only to harass - He is sexist and he assumes women are objects and lack a brain to understand men and their motives. Please consider the context in the judgment. This was ill-willed and when plaintiff told him to stop, he retaliated with her manager, Vaibhav Mathur, against her who made comments about plaintiff behavior and was twisted. These were hindu disbelievers who have no morals and come from a culture that values women the least.”

“Pointing at a corona beer at the table saying ‘Drink Covid’. This individual has never talked to the plaintiff [] prior to this and this was his first conversation so harassment and death wishes were his language.”

Nothing in the language supports any direct sexual harassment. The court therefore considers the hostile environment standard. “Courts have concluded that a hostile work environment existed where there was a pattern of continuous, pervasive harassment.” (Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at p. at p. 611.) The subject allegations lack any actual factual description of sexually inappropriate conduct or comment under the standard. Distasteful social behavior perhaps objectively characterized as rude and insensitive, still lacks any actual establishment of sexually inappropriate behavior. Conclusions and assumptions of sexism intermixed with opinions on intelligence and qualifications in no way objectively supports a factual finding for harassment. (Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at pp. 613-614.) The demurrer is sustained.

7^th Cause of Action: Retaliation in Violation of Gov’t Code 12940 et seq.

Confluent again challenges the claim on a lack of facts. Plaintiff again provides a list of examples of “protected activities” thereby underpinning the claim for retaliatory conduct.

“To establish a prima facie case of retaliation, a plaintiff must show that she engaged in a protected activity, that she was thereafter subjected to adverse employment action by her employer, and there was a causal link between the two.” (Fisher v. San Pedro Peninsula Hospital, supra, 214 Cal.App.3d at p. 614.) “[C]ourts considering the question of what constitutes an adverse employment action for purposes of a statutory retaliation claim have uniformly held an intermediate retaliatory employment action may suffice: ‘The legislative purpose underlying FEHA's prohibition against retaliation is to prevent employers from deterring employees from asserting good faith discrimination complaints, and the use of intermediate retaliatory actions may certainly have this effect.’ (Citations.) However, courts also have been united in the view that an employer's intermediate decision or action ‘constitutes actionable retaliation only if it had a substantial and material adverse effect on the terms and conditions of the plaintiff's employment.’ (Citations.)” (Pinero v. Specialty Restaurants Corp. (2005) 130 Cal.App.4th 635, 641.) A pattern of conduct, rather than a single incident can support a finding of adverse employment. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1056.)

The court again reviews each and every operative unnumbered paragraph under the seventh cause of action heading.

“Protected Activity: Plaintiff reached out to HR after she was harassed by her manager, Vaibhav Mathur in an email. She reported ongoing discrimination, harassment, and lack of time off manager mistakes. HR was very well of supervisor poor behavior.

Retaliation: HR along with a team of management retaliated and created a fake excessive performance plan with an intention of ending her employment on the basis and Carol Patel lied to her that this a promotion plan. She got fired.”

“Protected Activity: Plaintiff clearly communicated in front of two other employees to the harasser, Sanjay Garde that she shouldn’t be harassed and made fun of in front of other team members and her presence in a happy hour shouldn’t be questioned with inappropriate jokes to lower her worth. Retaliation: The harasser Sanjay Garde retaliated and character assassinated her with her manager who was already a poisonous man and the manager retaliated and complained to the plaintiff about her behavior in an email. This is oppression and HR became aware and did nothing and fired her instead right after.”

“Protected Activity: Plaintiff reached out to Russ Wargin, after Vaibhav showed emails from Carol to Alex during the performance plan where Carol was backstabbing. Ms. Naeini complained the issue that she has problems with understanding the scope and is lying and harassing her behind her back with the lead to get her fired despite her delivering the excessive assignments.

Retaliation: Russ decided to retaliate and twisted her words and reported her truthful comments such as “Americans are free thinkers and Indians are not necessarily the same and she doesn’t live in India rather America so she doesn’t have to deal with a non diverse performance committee of patel families who devalue women and are behind and her manager should not backstab her”. He twisted it and said he is uncomfortable with the truth and got her fired. This same individual would share his personal problems with the plaintiff and make personal comments about the plaintiff's family to gain her trust, follow her around similar to other harassers then ask for her ideas like cloud strategy and break her trusts by backstabbing. All his motives were coming from a dark place. He is a snake and very rude man imprisoned by his demons.”

“Protected Activity: Plaintiff complained to HR that she is being removed from the project as there are harassing and malicious individuals on the customer site. As one of the customers that had very bad technologies and was the plaintiff previous employer decided to remove her from the project and also the secretary of JPL harassed the plaintiff and she was removed from that project. Retaliation: Carol Patel retaliated and brought up both of these instances during the performance plan to pollute the air even though she knew those people are not part of the projects as both were HR of the customer and had no role and merely were malicious jealous women with lower caliber and lower value like herself. So she chose to Individuals very low level of dignity who would die to be in the plaintiff's shoes and couldn’t be, therefore they decided to ruin her opportunities with gossip. Carol loved to do that as she was the puppet master and not only damaged JPL or Hallmark Labs projects but also ruined the plaintiff's opportunities. Masses were impacted by misconduct of Carol Patel and the rest of the management, as plaintiff was a leading voice who held the torch and wouldn’t tolerate her nonsense and keep moving and she keeps popping up and repeating her abuse along with other toxic teammates.”

The court finds the assumption of protected conduct lacks sufficient support. The vagueness of the underlying basis for the complaints, especially when considered in context of the sexual harassment cause of action, undermines a conclusion of truly protected conduct. “‘As our high court has explained, “complaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigate will not suffice to establish protected conduct.” (Citation.)’” (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 384.)

Even assuming the complaints made to Human Resources constitute protected activities for purposes of the subject cause of action, the court finds a lack of any adverse employment action. Again, Plaintiff relies on conclusions of personal animus manifested as transfers out of projects and establishment of performance goals. While the court acknowledges the unmade but potentially articulated pretextual nature of the conduct, the court finds such conduct in and of itself lacks any support for the finding of an adverse employment action. (Pinero v. Specialty Restaurants Corp., supra, 130 Cal.App.4th at pp. 641-642, 646-647.) The demurrer is sustained.

8^th Cause of Action: Wrongful Constructive Termination in Violation of Public Policy

Confluent challenges the claim on lack of factual support. Plaintiff recites general statements of discrimination. The court notes that Plaintiff both alleges being actually fired, yet alleges constructive termination. The internal conflict renders the claim invalid. The court considers the legal standard regardless.

“In order to sustain a claim of wrongful discharge in violation of fundamental public policy, Turner must prove that his dismissal violated a policy that is (1) fundamental,^[] (2) beneficial for the public,^[] and (3) embodied in a statute or constitutional provision.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1256.) The court selectively quotes the operative complaint in order to convey the material basis of the claims, while limiting the voluminous redundant allegations.

“Promotion: Both Supervisors Vaihbah Mathur and Carol Patel promised and refused promotions while she promoted others. Carol would avoid the conversation and disappear to drag her along. Project activities: Carol Patel refused to give the plaintiff time to participate in project activities that others were entitled to and discriminated towards her. She refused to trust her. She hired plaintiff for her image as a women supporter yet chose to abuse her and treat her like a child and when she realized plaintiff can’t be used in this manner, fired her. The worst in the picture is this woman and should pay for her psychological abuse towards her. ...”

“Individuals in priority order who deserve to be fired since they violated equal opportunity policy and/or supported violators, and/or harassed, and/or discriminated against plaintiff and were not discharged: 1. Russ Wargin - Project Manager - Theft, hate crime, misconduct, negligence, sexism, racism, ignorance 2. Carol Patel - Supervisor/manager - Theft, Racism, sexism, misconduct, harassment, ignorance, failure to preventing misconduct, supporting misconduct 3. Mirko Kimpf - Solution Architect- Theft, pursuing plaintiff to repeat theft, racism 4. Mickey Heneyn - Director - Misconduct, failure at leadership, racism, failure to prevent harassment, promoting misconduct such as excessive drinking, failure to prevent misconduct, poor performance 5. Kirby Frank - Project Manager - Harassment, racism, sexism, misconduct, ignorance, poor performance 6. Vaibhav Mathur - Supervisor/Manager - Sexism, ignorance, harassment, misconduct Sanjay Garde - Solution Architect - Harassment, sexism, ignorance 7. Thomas Arneman - Project Manager - Poor performance leading to misconduct, promoting misconduct such as excessive drinking 8. Preeya Patel - Human Resources - Poor performance, failure at preventing misconduct such as harassment and discrimination as part of duties 9. Jose Umana - Solution Architect - Ignorance, racism, harassment 10. John Horvers - Consulting engineering- Misconduct, harassment 11. Alex Loddengard - Lead - Supporting Theft, misconduct, hoarding projects and blocking others 12. Eric Grindle - Project Manager - Negligence, misconduct 13. Matt Mangia - Solution Architect - Discrimination, poor performance when it comes to mentorship and lacking true knowledge and using the “white privilege” to eliminate others and delay their success.”

“1- She didn’t have a leadership title and 0 power of voice 2- She was one woman among 50+ men in an unhealthy environment 3- She didn’t have the so known “white privilege” 4- She was younger than the management who were narcissists with bullish tendencies and were corrupt.”

Again, the court finds no actual conduct related to a fundamental violation of public policy under the pled facts. Opinions and conclusions, especially regarding personal habits or moral judgment, lack objective support of wrongful conduct leading to termination. The demurrer is sustained.

9^th Cause of Action: Discrimination in Violation of Government Code section 12940, et. seq.

The court again considers the sufficiency of the allegations under the standard. A party must show “that show that discrimination was a substantial motivating factor, rather than simply a motivating factor, more effectively ensures that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision. At the same time, for reasons explained above, proof that discrimination was a substantial factor in an employment decision triggers the deterrent purpose of the FEHA and thus exposes the employer to liability, even if other factors would have led the employer to make the same decision at the time.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232.)

The court quotes substantial, selected portions of the operative unnumbered paragraphs under the subject challenged cause of action.

“Plaintiff was promised a solution architect role as she had 9 years of experience at the time of hire and had the qualification of that role. Carol promoted others and refused to have a conversation about it and in month 18 she was fired and she lied about the performance plan being a promotion plan and kept the plaintiff in a limbo state and worked her out. Even after she was terminated male individuals plaintiffs mentored with 0 experience who were just out of college were promoted into the role that she was promised. This is a clear example of discrimination, the plaintiff was above and beyond qualified and was refused opportunities to obtain power due to her potential for extreme success that made others jealous. The personal reasons of the defendant and her story and excuses doesn’t change the fact that the plaintiff was discriminated against. Vaibhav Mathur the other manager had a gang of indian boys around him and would completely dismiss the plaintiff's concerns and would not hear her. This is due to gender bias that’s common knowledge when it comes to work culture in Indian communities.”

“People had a diverse group of projects and this was documented in google spreadsheet by name Ms. Naeini constantly was assigned to the same type of projects for her learning to be limited and she kept asking to shadow more experienced staff and work on other customer offerings and she was refused by her manager to limit her exposure to collaborative opportunities and prevent her from teamwork that leads to greater success. Discovery will prove this.”

“This individual orally told plaintiff ownership and leadership of a project can’t be given to the plaintiff when the project was at infancy and the plaintiff wanted to lead it. Instead she went and supported Mirko who stole this project before and presented it to the team without plaintiff consent after plaintiff clearly warned him not to take any actions or setup calls on this without discussing it with her. Manager discriminated and others were involved.”

“Everyone had a week long time to dedicate to their left over work, self development, side project, research. Carol refused to give Ms. Naeini that week and asked her to help others instead. While others were able to work on their project and present it to the team. Plaintiff project was quite extensive yet management didn’t give her time, or resources and assumed she was unable to finish it as they were ignorant in the field of knowledge of AI. Plaintiff has extensive academia and industry experience in Machine Learning and Computer Vision.”

“Discriminating towards her by making bogus comments that come from lack of knowledge and a pure assumption that women are dumb and can’t finish tasks. Not understanding this project requires a team and proper planning and time because he was very uneducated in the field of AI and ML and Confluent and merely used aggressive tones to inject his “influence” and attack the plaintiff by using a condescending intimidating language orally and in writing.”

“Plaintiff was among the first who came up with the idea of Kafkadoc as an innovation project and wrote a prototype. She was a leading voice in innovation and had worked on various ideas and workshops that shaped the future delivery of professional services in a new way that some European managers adored yet due to jealousy and discrimination when a few members of her team decided to create a subdivision for innovation they didn’t even care to discuss it with her and this was very discouraging. When exceptional minority individuals with high potential and proven experience are excluded discrimination is born. Plaintiff knew that this aim was intentional to exclude her voice and block her growth opportunities to keep her small.”

“Cloud strategy was a white paper plaintiff wrote and Russ asked about it in a slack message, later on she saw a page in the internal wiki by Michael and Vaibhav named Cloud Strategy and when she reached out to Vaibhav about it, he told her she can’t work on it in writing. This idea was something she came up with, she wrote about it first. There is not only theft of ideas here there is clear discrimination that they assume they can work on her ideas, read her white paper, develop their own out of it, not give her any credit, block her after taking her power, deplete her without any acknowledgement and recognition to demote her. This is the reason the cause of action of discrimination exists and is prohibited. They demonstrated the exact actions in the cause. They are immoral individuals who promote the lowest frequency of theft and stupidity on earth and in the cosmos and must be punished.”

“Software Engineers or Solutions Architects had twice stock options and twice salary and her worth was never ever half of them. She had two masters degrees and 8 years of Software Engineering experience in fortune 500 companies such as Salesforce as a senior software engineer.”

“Plaintiff was refused time off twice despite her back pain and company unlimited policy. Vaibhav refused her birthday week time off which was harsh. She didn’t even have a two-week vacation after a year and half of employment. The norm in her field for her experience is 4-6 weeks per year because the job is very demanding. Management knew about her back pain and didn’t care and favored other boys on the team who were on the same discriminatory wavelength and had personal or racial grudges towards people of her race, color, culture, gender, etc. They can disclose their reasons during deposition and discovery and identify those who were more privileged than her and were entitled to rest, sleep or higher pay when she wasn’t. This is how immigrants are being overworked and get sick and eventually die faster under oppression.”

“In two incidents Carol and another sales manager refused to ask the plaintiff for her order. This happened during team dinners after a hard day at work and Carol asked other boys on the team in front of her when three of them had an engagement together and fully skipped over her. This was done on purpose because Carol never valued her as she is an ignorant oppressor. The Sales manager did the exact same thing, made eye contact with her and when she was taking orders asked the same two gentlemen and skipped over her. The company culture devalued her as an ethical woman and proof is already understood by a conscious mind here.”

Again, assumptions and racial stereotyping of different ethnicities and opinions of alleged unfair treatment of immigrant labor in no way demonstrates racially discriminatory conduct. The remainder of the conduct expresses displeasure with work assignments rather than factual articulation of wrongful conduct. The court sustains the demurrer.

11^th Cause of Action: Breach of Covenant of Good Faith and Fair Dealing

Confluent challenges the subject claim on grounds of no identified contractual agreement. Plaintiff responds with a series of allegations regarding management, without substantially addressing the fundamental question regarding the contractual basis.

“Every contract contains an implied covenant of good faith and fair dealing providing that no party to the contract will do anything that would deprive another party of the benefits of the contract. (Citations.) The implied covenant protects the reasonable expectations of the contracting parties based on their mutual promises. (Citations.) The scope of conduct prohibited by the implied covenant depends on the purposes and express terms of the contract. (Citation.) Although breach of the implied covenant often is pleaded as a separate count, a breach of the implied covenant is necessarily a breach of contract.” (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 885.)

Again, the operative complaint and Plaintiff literally lack any address for the fundamental basis of the claim—the contract. The court declines to consider a claim without the required underlying foundation. The demurrer is sustained.

14^th Cause of Action: Workplace Harassment

Confluent again challenges the substance of the claims, with Plaintiff relying on the unnumbered paragraphs of the operative complaint.

“Under the FEHA, it is unlawful ‘[f]or an employer ... or any other person, because of ... national origin ... [or] age ... to harass an employee ....’ (Citation.) To establish a prima facie case of a hostile work environment, [Plaintiff] must show that (1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her protected status; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment.” (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581.)

Plaintiff specifically incorporates the sixth cause of action, with additional allegations:

“Inappropriate or rude comments - ... for incidents and frequency Personal humiliation - ... for incidents and frequency Overly critical remarks - Management Vaibhav Mathur insulted plaintiff intelligence abilities when she was not given anytime to work on the project and was being abusive. Ostracizing behaviors - Manager and members - Repeatedly ignoring conversation about the promotion 5 times in chat messages. Not offering food. Not including her in the innovation org conversations. Intimidation tactics - Manager Vaibhav Mathurt chose to question the plaintiff's performance because he made a mistake and sold the wrong package then projected his fear of failure and his inferior complexity into the plaintiff, spoke aggressively and put her on a performance plan to end her employment.”

“Harassing and pursuing the plaintiff to fully hand off her project to a Mirko(thief) twice. This happened after she clearly communicated to managers that she is uncomfortable with working with him so Carol and Alex reached out again and she feld harassed as she had to repeat herself twice and was being chased by a thief.”

“During her performance plan Carol Patel harassed plaintiff for her removal from Hallmark labs project knowing the reason simply to ruin her image. Plaintiff used to work at Hallmark Labs and that customer is a serious abuser with instances of workplace harassment, verbal and physical assault, and sexual harassment. Mickey Heneyn communicated to the plaintiff that there is no reason besides the fact that they don’t want previous employees. HR there was Kim Mccune who saw her during engagements and she has a history of serious abuse towards the plaintiff in the previous employment and violated her.”

“During her performance plan this woman harassed the plaintiff for not following around the JPL doorman to see the Mars Rover that she already saw while she was in the middle of writing a report that was due soon. Plaintiff understood the level of unreasonability, manipulation and unethical approach of this woman to eliminate her and was speechless.”

“During her performance plan this woman harassed the plaintiff for not following around the JPL doorman to see the Mars Rover that she already saw while she was in the middle of writing a report that was due soon. Plaintiff understood the level of unreasonability, manipulation and unethical approach of this woman to eliminate her and was speechless.”

Again, the allegations appear to involve claims relating to personnel decisions for assignment and advancement without sufficient factual grounding to Plaintiff’s gender, race or nationality as the basis for said harassment other than accusations of misogyny. The demurrer is sustained.

The court acknowledges Plaintiff’s argument in presenting the large number of exhibits as support to either allow the case to proceed or as a basis for further leave to amend due to said potential outstanding discovery. In reviewing the course of the prior court orders as well as the latest complaint, the court finds Plaintiff presents all potential operative facts in support as experienced during the relevant employment period. The 500+ pages of opposition lack actual support for what Plaintiff intends to discover in support of the remaining causes of action. The court finds no basis for a determination that even if Confluent were wrongfully withholding information, said outstanding discovery would yield support for the previously found legally unsupported claims. The court therefore finds Plaintiff effectively concedes the inability to pled any and all of the subject claims after five prior attempts. In the three reviews by the court before the subject motion, the court found no material changes to the underlying factual support after multiple grants of leave. The court again finds no sufficient factual updates. The court therefore concludes that Plaintiff lacks the ability to plead the subject claims and sustains the demurrer without leave to amend. The standard for demurrer therefore compels dismissal of the causes of action. (Code Civ. Proc., § 430.41, subd. (e)(1); Youngman v. Nevada Irr. Dist. (1969) 70 Cal.2d 240, 245.)

Motion to Strike: MOOT.

Confluent to submit a proposed judgment.

Defendant Confluent to give notice to all parties.