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TIME: 02:00:00 PM JUDICIAL OFFICER PRESIDING: David Brown CLERK: E. Brown, K. Pratchen REPORTER/ERM: T. Goleno CSR# 10127 BAILIFF/COURT ATTENDANT: C. Chambers DATE: 06/29/2011 DEPT: 53

CASE NO: 34-2010-00090959-CU-OE-GDS CASE INIT.DATE: 11/04/2010 CASE TITLE: Tin vs. Panda Express Inc CASE CATEGORY: Civil - Unlimited EVENT ID/DOCUMENT ID: ,6554794 EVENT TYPE: Hearing on Demurrer - Civil Law and Motion - Demurrer/JOP MOVING PARTY: Hibachi-San Inc, Panda Restaurant Group Inc, Panda Express Inc, Panda Express LLC CAUSAL DOCUMENT/DATE FILED: Demurrer, 02/23/2011

Stanley Stringfellow, counsel, present telephonically for the Defendant Nature of Proceeding: Hearing on Demurrer TENTATIVE RULING Defendants' Demurrer to Plaintiff's Complaint is OVERRULED. The notice of motion does not provide notice of the Court's tentative ruling system as required by with C.R.C., Rule 3.1308 and Local Rule 3.04(D). Local Rules for the Sacramento Superior Court are available on the Court's website at <> Counsel for moving party is ordered to notify opposing party immediately of the tentative ruling system and to be available at the hearing, in person or by telephone, in the event opposing party appears without following the procedures set forth in Local Rule 3.04(B). Plaintiff's complaint sets forth four causes of action against defendants: the 1st for pregnancy/sex discrimination, the 2nd for retaliation, the 3rd for failure to prevent discrimination and/or retaliation and the 4th for adverse action in violation of public policy. Defendants demur to each cause of action on the grounds that they fail to state facts sufficient to constitute a cause of action, and on the grounds of uncertainty. Demurrer to the 1st for pregnancy/sex discrimination is OVERRULED. A plaintiff employee who claims discrimination must allege a prima facie case, that she was within the class protected from discrimination and was performing her job competently, but was terminated, plus some other circumstance suggesting discriminatory motive. Kelly v. Inc. (2005)135 Cal. App. 4th 1088, 1097 The Court finds that the facts alleged in paras. 10-64, and incorporated by reference into each cause of action (with regard to "incorporation by reference", see e.g. Republic Bank v. Marine Nat. Bank (1996) 45 Cal. App. 4th 919, 922), including the negative comments by a number of plaintiff's supervisors about

DATE: 06/29/2011 DEPT: 53


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CASE TITLE: Tin vs. Panda Express Inc

CASE NO: 34-2010-00090959-CU-OE-GDS

her pregnancies and her children, are sufficient to raise an inference that the adverse employment actions taken against plaintiff by defendants were based upon her gender/pregnancy. Demurrer to the 2nd cause of action for retaliation, is SUSTAINED, with leave to amend. Plaintiff informed her general manager of her pregnancy in November 2008. Plaintiff has failed to allege that her termination in February 2009, has any nexus to her request for time off for her prior pregnancies, under the California Family Rights Act. Demurrer to the 3rd cause of action for failure to prevent discrimination and/or retaliation is SUSTAINED, with leave to amend as to the retaliation allegations. Demurrer to the 4th cause of action for adverse action in violation of public policy, is OVERRULED. Discrimination based on pregnancy has been sufficiently alleged. Plaintiff may have leave to file and serve her first Amended Complaint not later than Monday, July 11, 2011. The responsive pleading shall be due 10 days thereafter (15 days if service is by mail). This minute order is effective immediately. No formal order nor further notice is required, the tentative ruling providing sufficient notice.

COURT RULING There being no request for oral argument, the Court affirmed the tentative ruling.

DATE: 06/29/2011 DEPT: 53


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