(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)

ALL CONTESTED ISSUES OF FACT

Most of the facts in this matter are undisputed. The principal disputes of fact appear to be:

1. Whether Hill used vulgar language around Lee: while the undisputed evidence demonstrates that Hill used vulgar speech in her communications with Lee (including, emails in which she used the words "bitch" and "fuck," and forwarded a video of naked men), Hill apparently does not recall using certain words remembered by others (like "cunt" and "cock") and does not recall discussing with Lee her boyfriends' penises. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

2. Whether Hill freely socialized with Lee: While numerous witnesses will testify that Hill regularly and freely socialized with Lee, including dining with him almost every night for 7 years, Hill apparently intends to testify that she socialized with Lee only to "curry favor" with him. (As stated in the Declaration of Gabrielle Hill filed in opposition to Defendants' Motion for Summary Judgment.)

3. Whether Hill made any protected complaint or protest: Hill has admitted that she never complained to Lee. However, she apparently contends - and Defendants dispute - that Hill complained to others, who, in any event, did not take part in the decision to terminate Hill's employment.

5. Whether Lee promised Hill that she could only be terminated for cause and that she would receive deferred compensation of some kind upon termination. Defendants deny the existence of any such promises. Hill admitted that she never discussed termination with Lee and never discussed severance pay. (See Part 7 of 10.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)

Hill's 7th Cause of Action for Intentional Infliction of Emotional Distress Is Unsupported By the Evidence

Hill's 7th Cause of action largely duplicates her other causes of action and alleges that Defendants' conduct caused her severe emotional distress. Defendants deny this claim, which fails for the same reasons as the underlying claims on which it is based. Further, the purported conduct Hill seeks to rely upon to support her claim is neither "extreme" nor "outrageous" as a matter of law, or is nonsensical (e.g., gay men who did not sleep with Lee were fired). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Hill's 10th Cause of Action for Violation of Labor Code Section 226 Is Unsupported by the Evidence

Hill's 10th cause of action alleges that she requested to review her wage statements, but was denied the opportunity entitling her to a $750 penalty under Labor Code Section 226(f). Defendants deny this claim. Hill never requested to review her wage statements, and a letter from her lawyer to a lawyer for RLAC asking for a copy of her personnel file did not constitute a request for payroll records (which were not kept in any personnel file) by Hill within the meaning of Section 226. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Hill's 12th and 13th causes of action allege that RLAC breached a contract when it terminated her without cause and then failed to pay her deferred compensation (severance pay). Defendants deny these claims in their entirety. Hill has admitted that she never even discussed the idea of termination with Lee, nor did he ever promise her severance pay or other "deferred compensation." (See Part 6 of 10.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)

Hill's 2nd Cause of Action for Discrimination Based on Sex Is Unsupported By the Evidence

The thrust of Hill's gender discrimination claim is that Lee favored his male purported paramour Davis White over her, afforded him preferential treatment and terminated her to give White her accounts. Defendants deny Hill's claim in all respects. White and Lee were not involved in a romantic relationship at any time during White's employment. Furthermore, Hill has admitted, and numerous witnesses will testify, that none of her work was taken away and given to White. And, even if Lee was in a relationship with, and favored, White over Hill (and her other male co-workers), this does not constitute gender discrimination as a matter of law. Proskel v. Gattis, 41 Cal. App. 4th 1626, 1630 (1996) For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Where, as here, there is no conduct other than favoritism toward a paramour, the overwhelming weight of authority holds that no claim of sexual harassment or discrimination exists ). Finally, the evidence demonstrates that Hill was terminated because she was unable to satisfactorily perform her job as agent, including not closing a single deal for a RLAC client.

Hill's 3rd, 5th and 6th Causes of Action for Retaliation Are Unsupported By the Evidence

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)

Hill's 1st Cause of Action for Sexual Harassment and 4th Cause of Action for Failure to Prevent Harassment Are Unsupported by The Evidence

Hill's harassment claims are based on her assertion that her former friend and supervisor Randy Lee used vulgar language in her presence that she purports to have found offensive and harassing. Defendants deny that Hill was subject to unlawful harassment. Hill has admitted, and numerous witnesses will testify, that Hill and Lee were friends who vacationed and regularly socialized together, that Hill used vulgar language around Lee (and even sent him a video of naked men with exposed penises) and that Hill never complained to Lee about his use of vulgar language. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

The evidence demonstrates that Lee's speech and conduct was not because of Hill's gender (if she had been a man, she would have been subjected to the same speech), unwelcome to Hill or so severe or pervasive that it altered the conditions of Hill's employment and created a hostile work environment. In addition, much of the speech upon which Hill hopes to base her claim - for example, Lee's private discussions with his female friends -- is protected by the free speech guarantees under the First Amendment and California constitution. All such evidence must be excluded. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 932-34 (1982) (verdict must be vacated where court cannot tell if the verdict was based, in part, on constitutionally-protected activity). (See Part 4 of 10.)

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)

BRIEF DESCRIPTION OF CLAIMS AND DEFENSES PRESENTED AND ISSUES TO BE DECIDED

The Court granted summary adjudication on Hill's 8th and 9th causes of action for overtime pay and meal penalties, and Hill has agreed to entry of judgment on her related 11th cause of action under Labor Code Section 201. Accordingly, Hill has eleven remaining causes of action. As set forth below, one of Hill's causes of action will be tried to the Court and, depending on the outcome of that proceeding, eleven of the causes of action may be tried to the jury. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

14th Cause of Action under Business & Professions Code § 17200 to Be Decided By Court

Hill's 14th Cause of Action for violation of Business Professionals Code Section 17200 (harassment, discrimination, and retaliation on the basis of sex) must be tried to the Court rather than the jury. Hodge v. Superior Court, 145 Cal. App. 4th 278, 281 (2006) ( We conclude no jury trial is warranted. The gist of the section 17200 cause of action is equitable and the relief sought is equitable even though plaintiffs could have requested damages for the same violations, even though the employer has asserted an affirmative defense, and even though the UCL cause of action will require proof of the underlying Labor Code violations. ); People v. First Fed. Credit Corp., 104 Cal. App. 4th 721,732-733 (2002) ( [T]he concern that juror passion or prejudice may affect a punitive damage award ... is absent in UCL cases because there is no right to a jury trial in such cases.")

Hill's Section 17200 claim asks the Court to find that Defendants engaged in unlawful sex harassment, gender discrimination and retaliation. Defendants deny Hill was subject to any speech or conduct because of her gender, and further deny that they retaliated against her for a protected complaint or protest. Defendants more fully respond to these claims below. (See Part 3 of 10.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)

DEFENDANTS’ TRIAL BRIEF

INTRODUCTION

Plaintiff Gabrielle Hill's ("Hill") Complaint never should have been filed. Though she has sued her gay, former friend and boss defendant Randy Lee ("Lee") and his company, Randy Lee Artists Collective ("RLAC"), for sexual harassment based almost entirely on Lee's use of vulgar speech, the evidence shows that his speech was not directed at or about her, that Lee was Hill's close personal friend, that she had expressed love for Lee and referred to him as "sweetie," "doll," and "sunshine," that she regularly socialized and vacationed with him, and that she herself used vulgar language (including the words "cunt," "cock," and "bitch"), and Hill talked about sex (and her boyfriend’s penis size) around Lee (and even sent Lee a video of completely naked men dancing with their pensises exposed). For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Based on these facts and many others like them - most of which are undisputed - Hill will be unable to establish each of the necessary elements of a claim for unlawful harassment: (1) that she was subjected to unwelcome and offensive speech or conduct, (2) because she is a woman, and (3) that such speech or conduct was so severe or pervasive that it altered the conditions of Hill's employment and created a hostile work environment. Furthermore, to the extent that Hill seeks to base her claim on speech that was not even directed at her -- for example, Lee's conversation with his female friends -- her claim must be dismissed based on the right of free speech guaranteed Lee by First Amendment of the United States Constitution and its California counterpart, article I, section 2 of the California Constitution (hereafter collectively the "First Amendment").

Hill's other claims fair no better. Hill cannot prove gender discrimination without evidence that she suffered an adverse employment action because of her gender. If anything, the evidence shows that Hill was treated better than her male co-workers.

As to Hill's retaliation claims, Hill admits that she never even complained to Lee. And there is no evidence that Hill complained to anyone else or that anyone else conveyed to Lee that Hill had lodged some kind of protest. Since Lee did not know of any complaint or other protected activity, it is axiomatic that his decisions could not have been motivated by retaliatory animus.

Finally, Hill has no evidence of any contract either that she could only be terminated for cause or that she would be paid deferred compensation (severance) upon her termination. (See Part 2 of 10.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

ARGUMENT

The plaintiff has stated sufficient facts of discrimination in employment, (First Cause of Action), intentional infliction of severe emotional distress, (Second Cause of Action), and actual controversy, (Third Cause of Action), Code Civ. Proc. sec. 430.10 (e). Each cause of action in the pleading is written clearly, unambiguously, and with certainty as to all facts and elements for the causes of action. Code Civ. Proc. sec. 430.10 (f).

If there be any other reason that the pleading must be repaired, an order sustaining a demurrer without leave to amend is reviewable for abuse of discretion "even though no request to amend the pleading was made." Code Civ. Proc. sec. 472c(a); see Kolani v. Gluska (1998) 64 CA4th 402, 412, 75 CR2d 257, 263.

The plaintiff has thoroughly reviewed the pleading before filing it and it does not contain a request to amend the pleading. However, it may be considered an abuse of discretion if a potentially effective amendment is "both apparent and consistent with plaintiff's theory of the case." Camsi IV v. Hunter Technology Corp. (1991) 230 CA3d 1525, 1542, 282 CR 80, 89. The outcome of this case is important not only to the plaintiff's future and her plans to marry an employee, but for a large public interest who have received services for over twenty years from the defendants.

CONCLUSION

Plaintiff respectfully requests the demurrer be denied and the counts answered.

The actual causation is their denial to allow their employees to marry any person by their employment contract. Their reasons for the outrageous conduct cite an abuse of power and the need for that abuse of power due to the plaintiff and employee being clients and once homeless. The defendants are completely knowledgeable of the plaintiff's susceptibility to emotional distress and their outrageous conduct is of an intentional nature of unreasonable acts to all humans under the laws of the State of California and unlawful contracts. The plaintiff further seeks exemplary damages.

The plaintiff is seeking damages for the injury of the third cause of action for declaratory relief. The equitable relief is necessary and proper due to there being an unlawful contract denying her the right to marry one person, monetary damages alone would not remedy this controversy. Declaratory relief is necessary and proper for reason of public interest in that the unlawful employment contract and discriminatory hiring policies apply to all employees, applicants for employment, and clients, equally, and not only to the plaintiff. Declaratory relief is necessary and proper because the plaintiff has exhausted every administrative remedy, TAC, dated 02/05/2007.

The plaintiff clearly states that she is protected by reason of age by the Cal. F.E.H.A., Gov. Code sec. 12900 et seq., (in addition to the other reasons she has been denied a job for which she was qualified and that job was given to another person), TAC, dated 02/05/2007. (See Part 5 of 5.)

NATURE OF THE CASE

The plaintiff is seeking damages for the injury of the first cause of action for discrimination in hiring. The plaintiff therein sites sufficient facts and unambiguously includes each of the elements for the cause of action. The plaintiff is a protected applicant for employment and the defendant is a covered employer under the Cal. F.E.H.A., Gov. Code sec. 12900 et seq. The plaintiff states the facts of the adverse treatment of a supervisor of the defendants and the support of those acts by the Executive Director and a V.P. of the Board of Directors.

The plaintiff enquired as to, and discloses the discriminatory intent of the hiring policies. The plaintiff exhausted every administrative remedy not only by the powers of the Cal. D.F.E.H., but also in appealing to the public entities that fund as an independent contractor the defendants, the County of Sacramento, and the City of Sacramento.

The plaintiff has made a prima facie case in that she has clearly stated that she is a member of a protected class, qualified for the jobs offered and denied to her, suffered adverse action, and learned from the defendants on what basis others got the job she was seeking.

The plaintiff states the facts of the defendants' outrageous conduct after they learned of the plaintiff and the employee's intentions, and the intent and reckless disregard for both the law, Civ. Code sec. 1669, and the emotional needs of the plaintiff. The plaintiff states that the defendant was aware of the severe emotional distress being inflicted and reacted by contacting her case manager at S.M.H., transferring her to a different shelter, and harassing her. (See Part 4 of 5.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

With respect to both the plaintiff and the defendant the Cal. Fair Employment and Housing Act was at all times mentioned within the complaint in effect, the plaintiff has standing to sue, and has been issued a Notice of Right To Sue by the Cal. Department of Fair Employment and Housing, served to Thomas Brown, Executive Director, S.H.P., by Owen White, District Administrator, 02/28/2006, and attached to the Third Amended Complaint.

Plaintiff states the dates and actions of the defendants that deny her the right to seek employment on the basis of age, association with employees, clients, and other applicants for employment, TAC, dated 02/05/2007.

Plaintiff states the dates and actions of the defendants that deny her the right to marry one, and all employees, of the defendants, TAC, dated 02/05/2007.

Plaintiff states the dates and actions of the defendants to intentionally inflict severe emotional distress, their actions and words to involve her case manager at Sacramento Mental Health, their transferring her to a different shelter, TAC, dated 02/05/2007.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

PLAINTIFF’S OPPOSITION TO DEMURRER

SUMMARY OF DEFENDANTS' POSITION

Defendant S.H.P., moves the court to sustain a demurrer to each of the causes of action on the grounds that each fails to plead facts sufficient to state a cause of action, Code Civ. Proc. sec. 430.10 (e), and for reason that they believe that the complaint is uncertain, ambiguous, or unintelligible, Code Civ. Proc. sec. 430.10 (f).

The Notice of Demurrer and Demurrer of Sacramento Housing Project to Plaintiffs Third Amended Complaint for sexual harassment, dated 03/16/2007, and the Memorandum of Points and Authorities in Support of Sacramento Housing Project's Demurrer to Plaintiffs Third Amended Complaint, dated 03/16/2007 are both unverified as to any facts therein (plaintiff accepts the case citations), therefore the plaintiff will address the grounds of the demurrer, only.

Plaintiff notes that the pleading of the Third Amended Complaint, dated February 5, 2007, was written with the aid of the source Cal. Causes of Action, James Publishing, Inc., Santa Ana, CA, 2007, on the elements and Calif. Civil Practice Guide, Weil and Brown, The Rutter Group, 2008, on declaratory relief.

FACTS OF THE CASE

The Cal. Fair Employment and Housing Act, Gov. Code sec. 12900 et seq., applies to applicants of employment equally, as to employees.

Gov. Code sec. 12926 (d) states "Employer" includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows: Employer does not include a religious association or corporation not organized for private profit. (See Part 2 of 5.)

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Showing the Defendants' intent and motive is difficult. All courts have recognized that the question facing triers of fact in discrimination cases is both sensitive and difficult. There will seldom be eyewitness testimony as to the employer's mental process U.S. Postal Service Bd. Of Govs. v. Aikens (1983) 460 U.S. 711, 716. Much of the time the employer's intent must be extracted through a complicated process of panning and sifting. O'Mary v. Mitsubishi Electronics America (1997) 59 Cal.App. 3th 576,575. Plaintiff has provided sufficient disputed facts to warrant an analysis of his claims at trial.

The objective severity of harassment should be judged from the perspective of a reasonable person in the Plaintiffs position, considering all the circumstances. In harassment cases, that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. Oncale v. Sundowner Offshore Services, Inc. (1998) 118 S.Ct. 998, 1003. The total circumstances of Plaintiffs work environment as shown by the facts and evidence presented could clearly be considered by a reasonable person to constitute severe and pervasive harassing conduct. Proof of discriminatory intent may be direct, circumstantial, or may be inferred from statistical evidence. All evidence that a plaintiff presents can contribute to this inference, and should therefore be considered as cumulative. Stender v. Lucky Stores (N.D. Cal. 1992) 803 F. Supp. 259, 319.

CONCLUSION

Discrimination based on sexual orientation and creed are protected by the California Constitution The facts presented by Plaintiff paint a clear picture of discrimination and harassment by Defendants based on perceived sexual orientation, affiliation with African Americans, and creed.

For the reasons stated herein, Plaintiff respectfully requests that this Court deny Defendants' motion for summary judgment in its entirety.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Defendants’ Harassment and Discriminatory Conduct Toward Plaintiff was Severe and Pervasive

When taken as a whole and analyzed in context, Defendant's blatant racist and anti-homosexual comments combined with his inappropriate questioning and innuendo regarding Plaintiff's sexuality clearly show that Defendant Green had a problem with Plaintiff based on race, religion and perceived sexual preference. Defendant Green acted on his perceptions against Plaintiff by consistently intimidating and harassing him through micro management of his department, derogatory remarks about Plaintiff to other staff, intimidation of students on Plaintiff's team, attempting to create violations of policy and then discipline Plaintiff for such violations, over penalizing Plaintiff with unreasonably harsh punishments, initiating an unwarranted NCAA investigation of Plaintiff, and waging an overall campaign to get Plaintiff fired.

When the workplace is permeated with discriminatory intimidation, ridicule and insult that is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment," the law is violated. Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, quoting Harris v. Forklift Systems, Inc. (1993) 510 U.S. 17, 21. Defendants' actions continued nonstop from August 2005 through July 2007.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.

Summary Judgment is Improper Here Because Triable Issues of Material Fact Exist and Plaintiff Has Provided Sufficient Showing Of Severe and Pervasive Harassment and Discrimination Based on Perceived Sexual Orientation, Creed, and Affiliation With African- Americans

Even if Defendants' evidence is deemed admissible and they are able to meet their initial burden of proof, triable issues of disputed material facts exist which preclude Defendants from successfully moving for summary judgment.

To preclude summary judgment, all the opposing party has to do is successfully introduce enough evidence to show the existence of even a single triable issue of material fact. Plaintiff has accomplished this. As Plaintiff’s Separate Statement of Undisputed and Disputed Material Facts shows, sufficient disputed facts exist to support Plaintiff’s causes of action.

Plaintiff has provided facts, and will produce further evidence at trial, showing that Defendant Green initiated an ongoing and pervasive harassment campaign against Plaintiff based on Defendant Green's perception that Plaintiff was homosexual. Plaintiff will also demonstrate Defendant Green was biased against Plaintiff because Plaintiff is Jewish and because of Plaintiff's affiliation with African-Americans. (See Part 6 of 7.)

The California Constitution Applies to Discrimination Based on Sexual Orientation

California Courts have interpreted Article I, Section 8 of the California Constitution to include protection against disqualification from entering or pursuing a business, profession, vocation or employment because of sexual orientation. In In re Marriage Cases the Court found that, just as it is not constitutionally permissible to discriminate against ethnic minorities or women ... an individual's homosexual orientation is not a constitutionally legitimate basis for withholding or restricting the individual's legal rights. In re Marriage Cases (2008) 43 Cal. 4th 757, 822. Further, "this state's current policies and conduct regarding homosexuality recognize that gay individuals are entitled to the same legal rights and the same respect and dignity afforded all other individuals and are protected from discrimination on the basis of their sexual orientation." In re Marriage, supra at 821-822.

The provisions of the California Constitution, Article I Section 8 are in place to protect individual's basic civil right to access to non-discriminatory employment. In light of the evolution of our state's understanding concerning the equal dignity and respect to which all persons are entitled without regard to their sexual orientation, it is not appropriate to interpret these provisions in a way that, as a practical matter, excludes gay individuals from the protective reach of such basic civil rights. In re Marriage Cases, supra at 823.

For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.