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Case 2:17-cv-03366-PSG-AS Document 28 Filed 06/26/17 Page 1 of 28 Page ID #:337

1 Felicia Medina (SBN 255804)


fmedina@medinaorthwein.com
2
Jennifer Orthwein (SBN 255196)
3 jorthwein@medinaorthwein.com
MEDINA ORTHWEIN LLP
4
1322 Webster St #200
5 Oakland, CA 94612
Telephone: (510) 679-2145; Facsimile: (510) 217-3580
6

7 Xinying Valerian (SBN 254890)


xvalerian@sanfordheisler.com
8
Kevin Love Hubbard (SBN 290759)
9 khubbard@sanfordheisler.com
SANFORD HEISLER SHARP, LLP
10
111 Sutter Street, Suite 975
11 San Francisco, CA 94104
12
Telephone: (415) 795-2020; Facsimile: (415) 795-2021
Attorneys for Plaintiff Zola Mashariki
13

14 UNITED STATES DISTRICT COURT


CENTRAL DISTRICT OF CALIFORNIA
15
ZOLA MASHARIKI, Case No.: 2:17-cv-03366-PSG-AS
16

17 Plaintiff, PLAINTIFFS OPPOSITION TO


v. DEFENDANTS BLACK
18
ENTERTAINMENT
19 VIACOM INC.; et al., TELEVISION LLCS AND
20
VIACOM INC.S MOTIONS TO
Defendants. DISMISS COMPLAINT
21

22
Date: July 17, 2017
Time: 1:30 p.m.
23 Place: Courtroom 6A
24
Judge: Hon. Phillip S. Gutierrez

25 Complaint filed: May 3, 2017


26

27

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PLAINTIFFS OPPOSITION TO BETS AND VIACOMS MOTIONS TO DISMISS COMPLAINT
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1
TABLE OF CONTENTS
I. INTRODUCTION................................................................................................... 1
2

3 II. LEGAL STANDARD ............................................................................................. 2


4 III. VIACOM WAS MS. MASHARIKIS EMPLOYER ............................................. 3
5 A. Legal Standard. ........................................................................................................ 4
6 B. Viacom Is Liable for BETs Federal Employment Law Violations - Viacom
Controlled the Employment Policies and Practices Governing Ms. Masharikis
7 Employment. ........................................................................................................... 4
8 C. Alternatively, Viacom Is Liable as Ms. Masharikis Joint Employer..................... 7
9 D. Viacom Is Ms. Masharikis Employer Under All Federal Statutes at Issue. .......... 9
10 E. Viacom Is Liable for BETs California Employment Law Violations Viacom
Controlled the Employment Policies and Practices Governing Ms. Masharikis
11 Employment. ........................................................................................................... 9
12 F. Viacom Is a Party to Ms. Masharikis Employment Agreement. ......................... 11
13 IV. PLAINTIFFS COMPLAINT MORE THAN SATISFIES RULE 8 ................... 12
14 A. The Complaint References BET and Viacom Collectively as the Company
because BET and Viacom Are Both Ms. Masharikis Employers. ...................... 12
15
B. Plaintiffs Complaint Sets Forth Ample Facts to Support Each Claim. ............... 13
16
C. Plaintiffs Complaint Provides Each Defendant with Adequate Notice. .............. 14
17
D. Defendants Motions Demonstrate They Understand Plaintiffs Allegations. ..... 15
18
V. THE COMPLAINT ADEQUATELY PLEADS A CLAIM OF DEFAMATION
19
15
20
A. The Statements Alleged in the Complaint Were False. ........................................ 17
21 B. Ms. Mashariki Is Not a Public Figure. .................................................................. 18
22 C. Ms. Mashariki Has Adequately Pled Actual Malice. ............................................ 20
23 D. Viacom Employees Made Defamatory Statements............................................... 21
24 VI. BET CANNOT MOVE ON CLAIMS AGAINST DEFENDANT HILL ............ 22
25 VII. CONCLUSION ..................................................................................................... 23
26

27

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1 TABLE OF AUTHORITIES
2 CASES
3 Federal Cases
4 Almont Ambulatory Surgery Ctr., LLC, et al. v. UnitedHealth Grp., Inc.,
No. CV1403053MWFVBKX, 2015 WL 12777092,
5 (C.D. Cal. Oct. 23, 2015) ................................................................................... 14, 15
6 Am. Dental Assn v. Khorrami, No. CV 02-3853-RSWL(RZX),
7 2006 WL 5105271, (C.D. Cal. June 9, 2006) .......................................................... 20
Anderson v. Pac. Mar. Assn, 336 F.3d 924 (9th Cir.2003) ................................................ 4
8
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................ 2
9
Assn for L.A. Deputy Sheriffs v. Cnty. of L.A., 648 F.3d 986 (9th Cir. 2011) .................... 2
10
Assn of Mexican-Am. Educators v. State of California, 231 F.3d 572
11 (9th Cir. 2000) ................................................................................................... 4, 5, 7
12 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) ........................................................ 2
13 Brown v. Arizona, No. CV-09-2272-PHX-GMS, 2010 WL 396387,
14
(D. Ariz. Jan. 28, 2010) ............................................................................................. 9
Davis v. Scherer, 468 U.S. 183 (1984) ................................................................................ 2
15
Deeds v. Bayer, No. 3:03 CV 00453LRHVP, 2007 WL 1232230,
16
(D. Nev. Apr. 26, 2007) ........................................................................................... 22
17 E.E.O.C. v. Creative Networks, LLC, No. CV 05 3032 PHX SMM,
18 2006 WL 3834286, (D. Ariz. Dec. 29, 2006) ........................................................ 4, 7
19 E.E.O.C. v. Glob. Horizons, Inc., 860 F. Supp. 2d 1172, (D. Haw. 2012).......................... 7
E.E.O.C. v. La Rana Hawaii, LLC, 888 F.Supp.2d 1019, (D. Haw. 2012) ....................... 14
20
E.E.O.C. v. Pac. Mar. Assn, 351 F.3d 1270, (9th Cir. 2003) ............................................. 7
21
Elba, Inc. v. JPMorgan Chase Bank, No. CV 10-9367 DSF (OPX),
22
2011 WL 13128428, (C.D. Cal. Mar. 28, 2011) ..................................................... 12
23 Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp.,
24 461 F. Supp. 2d 1188 (C.D. Cal. 2006) ................................................................... 21
25 Flowers v. Carville, 310 F.3d 1118, (9th Cir. 2002) ......................................................... 21
26
Harris v. Tomczak, 94 F.R.D. 687, (E.D. Cal. 1982) .................................................. 18, 19
Henry v. Pro*Act, LLC, No. CV138821DMGMRWX, 2014 WL 12567144,
27
(C.D. Cal. Dec. 30, 2014) .......................................................................................... 9
28
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1
Johnson v. Golden Empire Transit Dist., No. 1:14-CV-001841-JLT,
2016 WL 3999996, (E.D. Cal. July 25, 2016)......................................................... 11
2
JPMorgan Chase Bank, N.A. v. Paramount Residential Mortg. Grp., Inc.,
3 No. EDCV1300471JGBSPX, 2013 WL 12133894, (C.D. Cal. May 30, 2013) ..... 13
4 Lambert v. Ackerley, 180 F.3d 997, (9th Cir. 1999) ............................................................ 9
5 Lorona v. Arizona Summit Law Sch., LLC, 151 F. Supp. 3d 978,
(D. Ariz. 2015) ........................................................................................................... 5
6
MacKinnon v. Logitech Inc., No. 15-CV-05231-TEH, 2016 WL 2897661,
7 (N.D. Cal. May 18, 2016) ........................................................................................ 10
8 Mathieu v. Norrell Corp., 115 Cal. App. 4th 1174 (2004) ................................................ 10
9 Mercer v. Borden, 11 F. Supp. 2d 1190 (C.D. Cal. 1998) ................................................... 9
10 Miljkovic v. Univ. of Hawaii, Presidents Office,
No. CIV.09-00064 ACK-KSC, 2011 WL 237028 (D. Haw. Jan. 21, 2011) ............ 8
11
Nepomuceno v. Cherokee Medical Services, LLC, No. 13-CV-663 BTM BGS,
12 2013 WL 5670960, (S.D. Cal. Oct. 16, 2013) ................................................... 11, 22
13 Pacquiao v. Mayweather, 803 F. Supp. 2d 1208 (D. Nev. 2011) ..................................... 18
14 Penate v. Wyndham Worldwide Operations, Inc., No. 215CV09213ODWKSX,
15
2016 WL 3677146, (C.D. Cal. July 11, 2016) .......................................................... 8
Rivera v. Natl R.R. Passenger Corp., 331 F.3d 1074, 1080 (9th Cir.),
16
amended, 340 F.3d 767 (9th Cir. 2003)................................................................... 22
17 Roe v. Doe, No. C 09-0682 PJH, 2009 WL 1883752, (N.D. Cal. June 30, 2009) ............ 19
18 Scheuer v. Rhodes, 416 U.S. 232 (1974) ............................................................................. 2
19 Sec. & Exch. Commn v. Bardman, 216 F. Supp. 3d 1041 (N.D. Cal. 2016).............. 13, 14
20 Sollberger v. Wachovia Sec., LLC, No. SACV 09-766 AG (ANx),
21 2010 WL 2674456, (C.D. Cal. June 30, 2010.) ....................................................... 13
Tanforan Park Food Purveyors Council v. N.L.R.B., 656 F.2d 1358
22
(9th Cir. 1981) ........................................................................................................... 9
23
Watson v. Gulf & W. Indus., 650 F.2d 990 (9th Cir.1981) .................................................. 4
24
State Cases
25
Ampex Corp. v. Cargle, 128 Cal. App. 4th 1569 (2005) ....................................... 18, 19, 20
26
Annette F. v. Sharon S., 119 Cal. App. 4th 1146 (2004) ................................................... 20
27
Gilbert v. Sykes, 147 Cal. App. 4th 13, 25 (2007) ............................................................. 19
28
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1 Grummet v. Fresno Glazed Cement Pipe Co., 181 Cal. 509, (1919) ................................ 11
2 Hawran v. Hixson, 209 Cal. App. 4th 256 (2012) ............................................................. 21
3 Khawar v. Globe Intl, Inc., 19 Cal. 4th 254 (1998),
as modified (Dec. 22, 1998) .................................................................................... 19
4
Okun v. Superior Court, 29 Cal.3d 442 (1981) ................................................................. 16
5
Rudnick v. McMillan, 25 Cal. App. 4th 1183 (1994) ........................................................ 19
6
Snukal v. Flightways Mfg., Inc., 23 Cal. 4th 754 (2000) ................................................... 11
7

8 STATUTES
9 Federal Statutes
10 42 U.S.C. 2000e(b) .................................................................................................. passim
11 Equal Pay Act (EPA) ......................................................................................................... 13
12 Fair Labor Standards Act (FLSA)........................................................................................ 9
13 Family Medical Leave Act (FMLA) ........................................................................ 9, 10, 11
14 State Statutes
15 Cal. Civ. Code 47(c) ....................................................................................................... 21
16 California Equal Pay Act (CEPA) ..................................................................................... 13
17 California Fair Employment Housing Act (FEHA).................................................... passim
18 California Family Rights Act (CFRA)............................................................................... 11
19

20 RULES
21 Fed. R. Civ. P.

22 R. 8. ...................................................................................................................... 3, 12
R. 12 ........................................................................................................................... 2
23
Fed. R. Evid. 201(b) ............................................................................................................. 3
24

25
OTHER AUTHORITIES
26
Judicial Council of California Civil Jury Instructions (2017) No. VF-1704 Defamation
27 per se (Private Figure Matter of Private Concern) .............................................. 17
28
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1 I. INTRODUCTION
2 Plaintiff Zola Mashariki was fired by Defendants Viacom/BET while on protected
3 medical leave recovering from breast cancer surgery. Prior to her termination, Plaintiff
4 complained about gender discrimination involving Defendant Stephen Hill, a notorious
5 and repeat harasser. Both her medical leave and her complaints of discrimination are
6 protected activities under the law and she should not have been terminated for availing
7 herself of basic workplace rights. Chairman and CEO Debra Lee and Defendant Hill have
8 been the subject of public outrage for much of their tenure at BET for how the network
9 has internally and externally depicted, treated, and exploited women, particularly black
10 women. Ms. Mashariki is one of many people who Viacom, BET, Defendant Hill, and
11 Chairman Lee have harmed in reckless disregard of the law.
12 Viacom cannot evade liability by wrongfully claiming that it was not Ms.
13 Masharikis employer. Viacom conveniently failed to mention in its 16-page motion to
14 dismiss that Viacom, not BET, signed Ms. Masharikis employment agreement. Though
15 on BET letterhead, Viacom is mentioned and implicated over 90 times in the agreement
16 and Viacoms Executive Vice President of Human Resources, Scott Mills, signed it on
17 behalf of Viacom. In that employment agreement, Viacom explicitly refers to itself as
18 Ms. Masharikis employer. Viacom also set the terms and conditions of Ms. Masharikis
19 employment and Viacom, not BET, was the entity that terminated her while she was on
20 protected leave. Viacom is a party to the agreement and cannot be dismissed from this
21 action.
22 Moreover, and contrary to Defendants contentions, there is nothing shotgun-like or
23 deficient about Ms. Masharikis complaint. Defendants have been and are sufficiently on
24 notice of the claims and the actions in the complaint that give rise to each claim. With
25 respect to the defamation claims, Defendants try to jump the gun and make arguments that
26 only a jury can decide. The crux of any defamation claim is falsity of a statement that led
27 to harm. At the motion to dismiss phase, Defendants Viacom/BET cannot prove the
28
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1 truthfulness of their statements, nor will they be able to prove the veracity of their
2 statements at a later stage.
3 Viacoms and BETs motions to dismiss must be denied in their entirety. Despite
4 being aware of Plaintiffs medical condition, Defendants are clearly trying delay
5 adjudication on the merits of Plaintiff Zola Masharikis contract, employment, and
6 common law claims. Defendants request for judicial notice must also be denied as
7 irrelevant and failing to meet the standard under the Federal Rules of Evidence for judicial
8 notice. Defendants must be held accountable for their actions and the harm they have
9 caused and continue to cause to Ms. Mashariki.
10 II. LEGAL STANDARD
11 The standards for a Rule 12 motion to dismiss are well established. To determine
12 whether a complaint states a claim upon which relief can be granted, the Court must assume
13 that all the allegations in the complaint are true (even if doubtful in fact). Bell Atl. Corp.
14 v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted). From the factual allegations in
15 the complaint, the court then draws all reasonable inferences in favor of the plaintiff.
16 Assn for L.A. Deputy Sheriffs v. Cnty. of L.A., 648 F.3d 986, 991 (9th Cir. 2011). The
17 complaint need only state a claim to relief that is plausible on its face, alleging no more
18 than the factual content necessary to allow[] the court to draw the reasonable inference
19 that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662,
20 678 (2009) (citation omitted).
21 [A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual
22 proof of those facts is improbable, and that a recovery is very remote and unlikely.
23 Twombly, 550 U.S. at 556 (internal quotation marks omitted). The issue is not whether a
24 plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to
25 support the claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) overruled on other
26 grounds by Davis v. Scherer, 468 U.S. 183 (1984). At the pleading stage, plaintiffs must
27 merely nudge[] their claims across the line from conceivable to plausible. Twombly, 550
28
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1 U.S. at 570. Under that standard, Defendants Motions to Dismiss, (Dkt. Nos. 13 and 16),
2 should be denied.1
3 III. VIACOM WAS MS. MASHARIKIS EMPLOYER
4 Viacom Inc. (Viacom) is liable for its own illegal actions and the illegal actions of
5 subsidiary, Black Entertainment Television LLC (BET), taken against their employee,
6 Ms. Mashariki. Viacom controlled the terms and conditions of Ms. Masharikis
7 employment, discriminated against her on the basis of her gender, defamed her, breached
8 her employment contract, and wrongfully terminated her while she was on protected leave.
9 Viacoms Executive Vice President of Human Resources, Scott Mills, signed and executed
10 Ms. Masharikis employment contract, (the Agreement, attached as Exhibit 1 to
11 Plaintiffs Request for Judicial Notice, filed concurrently herewith), an agreement that
12 explicitly references and implicates Viacom more than 90 times. (Agreement, ( 3(b)(i),
13 3(b)(ii), 3(c), 3(d), 6(a)(i), 6(b)(i)(1), 6(b)(i)(2), 7(a), 7(b), 7(c), 8(a)(i), 8(a)(ii), 8(a)(iii),
14 8(a)(iv), 8(a)(v), 8(b), 9(a), 9(b), 9(c), 9(d), 9(e), 9(f), 10(b), 11(b)(v), 14, 15, 16, 17(a),
15 17(b), 19(a), 19(c)(ii), 19(d), 19(g), 20(a), 20(b), 21, 22, and 27, Appendix A, 2(a) and
16 8).
17 Mr. Mills also controlled personnel management actions with respect to Ms.
18 Mashariki, along with Viacoms Associate General Counsel, Amy Dow. Viacom required
19 Ms. Mashariki to comply with its employment practices and policies. Ms. Masharikis
20 performance appraisals were administered via Viacoms performance management
21 appraisal system. Ms. Masharikis communications with her employer regarding her
22 medical leave were with Viacom. Viacom held the power to both hire and fire Ms.
23 Mashariki. In short, Ms. Masharikis employment was controlled by Viacom and its
24

25 BETs motion for Judicial Notice must also be denied. Information from its own self-
1

serving website and an online article are not facts that can be accurately and readily
26 determined from sources whose accuracy cannot reasonably be questioned under Federal

27 Rules of Evidence 201(b). The information on BETs website is not applicable to any of
the Courts analysis of the instant motions. Same for the press article. Therefore, the Court
28 should decline to consider their contacts and see the request as nothing more than a ploy.
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1 agents. Viacoms baseless motion to dismiss Ms. Masharikis claims on the grounds that
2 it is not her employer, (Dkt. No. 16), should be denied.
3 A. Legal Standard.
4 Viacom is an employer subject to Title VII. See 42 U.S.C. 2000e(b) (defining an
5 employer as a person engaged in an industry affecting commerce who has fifteen or more
6 employees for each working day in each of twenty or more calendar weeks in the current
7 or preceding calendar year, and any agent of such a person . . .). Therefore, Viacom can
8 be liable to Ms. Mashariki under Title VII if there is some connection with an employment
9 relationship. Anderson v. Pac. Mar. Assn, 336 F.3d 924, 930 (9th Cir. 2003) (citation
10 omitted). Because one the primary goals of Title VII is to equalize access to job
11 opportunities, Viacoms connection to an employment relationship need not be direct for
12 Title VII to apply. See id.
13 B. Viacom Is Liable for BETs Federal Employment Law Violations - Viacom
14 Controlled the Employment Policies and Practices Governing Ms.
Masharikis Employment.
15

16 Viacom is responsible for the Title VII violations of its subsidiary, BET, because
17 Viacom was directly responsible for the employment policies and practices of BET with
18 respect to Ms. Masharikis employment. A parent corporation is liable for the Title VII
19 violations of its wholly owned subsidiary when the parent corporation participated
20 extensively in, and influenced, the employment policies and practices of the subsidiary.
21 Assn of Mexican-Am. Educators v. State of California, 231 F.3d 572, 582 (9th Cir. 2000)
22 (citation and internal quotation marks omitted). While there must be special
23 circumstances present for a parent corporation to be liable for its subsidiarys Title VII
24 violations, Watson v. Gulf & W. Indus., 650 F.2d 990, 993 (9th Cir. 1981), neither Watson
25 nor its progeny require the plaintiff in a civil rights action to affirmatively allege that . . .
26 the parent participated in or influenced the employment policies of the subsidiary to
27 survive a motion to dismiss. E.E.O.C. v. Creative Networks, LLC, No. CV 05-3032-PHX-
28 SMM, 2006 WL 3834286, at *4 (D. Ariz. Dec. 29, 2006).
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1 The issue for Viacoms motion to dismiss is therefore whether Ms. Masharikis
2 allegations permit a reasonable inference that Viacom participated in or influenced
3 BETs employment policies. Lorona v. Arizona Summit Law Sch., LLC, 151 F. Supp. 3d
4 978, 986 (D. Ariz. 2015). In Lorona, the defendants moved to dismiss, like Viacom, on
5 the grounds that the plaintiff did not adequately allege the parent company was her
6 employer for purposes of Title VII. The relevant complaint contained only one allegation
7 regarding the parent company: that the parent company had to approve all promotions of
8 the subsidiarys employees. Id. Based on that single allegation, the court concluded that
9 the defendants motion to dismiss must be denied because from that one allegation, one
10 could infer that [the parent company] participated in or influenced the [subsidiarys]
11 decision not to promote [the plaintiff]. Id. Even such a weak inference was enough at
12 the pleading stage because whether a parent company is an employer of its subsidiarys
13 employees is generally a question of fact not suitable to resolution on a motion to
14 dismiss. Id. at 986-87 (quoting Brown v. Daikin Am. Inc., 756 F.3d 219, 226 (2d Cir.
15 2014)).
16 In this case, by contrast, the Complaint is full of factual allegations that Viacom
17 participated extensively in, and influenced, the employment policies and practices of the
18 subsidiary, BET. Assn of Mexican-Am. Educators, 231 F.3d at 582. Ms. Mashariki
19 alleges that Defendant Hill was protected by Viacoms Human Resources (HR)
20 department, led by Viacoms Executive Vice President of HR and Administration, Scott
21 Mills. (Compl. 29.) She also alleges that BETs Head of HR, Cheena Stanley, reported
22 directly to Mr. Mills and required his approval on decisions affecting Ms. Mashariki.
23 (Compl. 51.) Moreover, the Complaint alleges that Mr. Mills, a Viacom executive, led
24 HR for both Viacom and BET. (Compl. 49.) With respect to Ms. Masharikis medical
25 leave, the Complaint alleges that a lawyer for Viacom directly interfered with her short-
26 term disability provider. (Compl. 60.) Indeed, Ms. Masharikis communications with
27 the Company regarding her medical leave were directly with Viacom.
28
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1 Most revealing, Ms. Masharikis employment agreement makes plain that Viacom
2 is her employer. It says so without equivocation: Viacom explicitly refused to waive
3 ownership rights over works resulting from Ms. Masharikis services because Viacom
4 claimed to be entitled to them as her employer. (Agreement, 8(a)(iv).) Though Viacom
5 now seeks to avoid responsibility as Ms. Masharikis employer in its motion to dismiss,
6 Viacom insisted on receiving the benefits of being her employer in her contract. Viacom
7 cannot have it both ways. Viacoms statement that it is Ms. Masharikis employer in the
8 Agreement is alone sufficient to defeat Viacoms motion to dismiss. But there is much
9 more.
10 Ms. Mashariki was also subject to Viacom Policies and was specifically required to
11 agree to comply with all Viacom Policies regarding employment practices and policies.
12 (Agreement, 20(b)). The Agreement also required Ms. Mashariki to comply with Viacom
13 Global Business Practices, in addition to Viacoms other policies and procedures. (Id.) As
14 a result, Viacom not only participated extensively in the employment policies and
15 practices of BET, the policies and practices that governed Ms. Masharikis employment
16 were expressly Viacom policies and practices.
17 Moreover, the Agreement specifies that, at the end of the contract period, if Ms.
18 Mashariki did not renew her contract with BET or Viacom, her employment with the
19 Company or Viacom would convert to at will employment. (Id., 15.) If that were not
20 enough to establish the special circumstances required, Viacom executive Scott Mills
21 himself executed Ms. Masharikis Agreement in his capacity as an Executive Vice
22 President of Viacom. Notably, no executive or officer of BET signed the agreement. (Id.,
23 p. 16.)
24 As Mr. Mills signature on her employment agreement makes evident, the Complaint
25 refers to Viacom and BET collectively as the Company because, with respect to Ms.
26 Masharikis employment, there was no meaningful distinction between the two entities.
27 Tellingly, the Agreement itself uses the terms the Company and Viacom interchangeably.
28 (See, e.g., Id. 8(a)(i), 8(b), and 15.)
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1 As a matter of law, these facts are sufficient to conclusively establish that Viacom is
2 liable for the Title VII violations of BET. See Assn of Mexican-Am. Educators, 231 F.3d
3 at 582. They are more than enough to defeat Viacoms motion to dismiss. Because Viacom
4 has failed to demonstrate that, as a matter of law, no relief could be granted under any set
5 of facts that could be proved consistent with Ms. Masharikis allegations that Viacom is
6 liable to her under Title VII, Viacoms motion to dismiss should be denied. Creative
7 Networks, 2006 WL 3834286, at * 4.
8 C. Alternatively, Viacom Is Liable as Ms. Masharikis Joint Employer.
9 Viacoms motion to dismiss on the basis that it is not liable to Ms. Mashariki as
10 BETs parent company should be denied. Even if there were not sufficient allegations in
11 the Complaint to support claims against Viacom as BETs parent company, Ms. Mashariki
12 has pled facts more than sufficient to state claims against Viacom as her joint employer.
13 The Ninth Circuit uses an economic realities test to determine whether a joint
14 employment relationship exists. The factors used in the economic realities test include:
15 whether the alleged joint employer (1) supervised the employee, (2) had the power to hire
16 and fire him, (3) had the power to discipline him, and (4) supervised, monitored and/or
17 controlled the employee and his work site. E.E.O.C. v. Glob. Horizons, Inc., 860 F. Supp.
18 2d 1172, 1883 (D. Haw. 2012) (citing E.E.O.C. v. Pac. Mar. Assn, 351 F.3d 1270, 1277
19 (9th Cir. 2003)). [A] joint employer may be held liable for discriminatory conduct where
20 the employer knew or should have known of the discriminatory conduct and failed to take
21 corrective measures within its control. E.E.O.C. v. Glob. Horizons, Inc., No. CV 11-
22 00257 DAE-RLP, 2012 WL 12883670, at *5 (D. Haw. May 31, 2012).
23 A plaintiff alleges sufficient facts to survive a motion to dismiss when the allegations
24 in the complaint plausibly suggest the existence of a joint employment relationship.
25 Glob. Horizons, Inc., 860 F. Supp. 2d at 1883. The key question is whether there are
26 allegations that the defendants exercised joint control over the terms and conditions of
27 employment of the employee. Pac. Mar. Assn, 351 F.3d at 1275 (citation and internal
28 quotation marks omitted). Even where a complaint does not explicitly allege that the
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1 plaintiff is employed by a defendant, courts deny motions to dismiss where the complaint
2 contains allegations sufficient to show that the defendant may be responsible under Title
3 VII as a joint employer. Miljkovic v. Univ. of Hawaii, Presidents Office, No. CIV.09-
4 00064 ACK-KSC, 2011 WL 237028, at *6 (D. Haw. Jan. 21, 2011).
5 As set forth above, Ms. Masharikis allegations are more than sufficient to establish
6 that Viacom may be liable as a joint employer. The terms and conditions of Ms.
7 Masharikis employment were expressly subject to Viacoms policies and practices, as set
8 forth in her employment agreement. Viacom had the power to hire Ms. Mashariki; indeed,
9 a Viacom executive executed her Agreement. Viacom also had, and exercised, the power
10 to fire her. The Agreement makes clear that Viacom could terminate Ms. Masharikis
11 employment, and that she would then be entitled to certain benefits. (Agreement, 15.)
12 When the Company in fact terminated Ms. Masharikis employment effective April 11,
13 2017, it wrote to Ms. Mashariki on Viacom letterhead in a letter signed by Viacom
14 Associate General Counsel, Amy R. Dow. It is also worth noting that Defendants motion
15 to dismiss characterizes a letter on Viacom letterhead, signed by a Viacom executive, as a
16 communication from BET, (see Dkt. No. 14 at 2:6 (BET said. . .)). This representation
17 is revealing and demonstrates that there is no meaningful distinction between Viacom and
18 BET with respect to Ms. Masharikis employment. Again, the Complaint refers to the
19 correspondence as coming from the Company because the actions of Viacom are
20 coextensive with the actions of BET. (Compl. 63.)
21 Even if there were some question about whether the Complaint contains sufficient
22 allegations to plausibly suggest the existence of a joint employment relationship, Viacoms
23 motion should be denied. Given that the issue whether [Viacom] is a joint employer of
24 [Ms. Mashariki] is particularly fact-intensive, and that the evidence needed to establish the
25 joint employer doctrine is most likely in [Viacoms] possession, . . . the parties should
26 conduct discovery before the Court addresses the merits of the doctrine. Penate v.
27 Wyndham Worldwide Operations, Inc., No. 215CV09213ODWKSX, 2016 WL 3677146,
28 at *3 (C.D. Cal. July 11, 2016). Under employment discrimination statutes . . . the
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1 question of whether a plaintiff was jointly employed by two employers is an issue of fact
2 that is typically addressed on summary judgment after the plaintiff has had the opportunity
3 of conducting discovery. Brown v. Arizona, No. CV-09-2272-PHX-GMS, 2010 WL
4 396387, at *1 (D. Ariz. Jan. 28, 2010); see also Tanforan Park Food Purveyors Council v.
5 N.L.R.B., 656 F.2d 1358, 1360 (9th Cir. 1981) (Whether a corporation possesses sufficient
6 indicia of control to qualify as a joint employer is essentially a factual issue. (citation and
7 internal quotation marks omitted)).
8 D. Viacom Is Ms. Masharikis Employer Under All Federal Statutes at Issue.
9 Under the FMLA and the FLSA, the definition of employer is even more broad
10 than under Title VII, so Viacom is liable under those statues as well. See Lambert v.
11 Ackerley, 180 F.3d 997, 101112 (9th Cir. 1999) (the definition of employer under the
12 FLSA is not limited by the common-law concept of employer, but is to be given an
13 expansive interpretation in order to effectuate the FLSAs broad remedial purposes)
14 (citation and internal quotation marks omitted); Mercer v. Borden, 11 F. Supp. 2d 1190,
15 1191 (C.D. Cal. 1998) (noting that the definition of employer in the FMLA is identical
16 to the definition in the FLSA). Viacoms motion to dismiss must therefore be denied as to
17 all of Ms. Masharikis federal employment claims, Counts I through VII.
18 E. Viacom Is Liable for BETs California Employment Law Violations
19 Viacom Controlled the Employment Policies and Practices Governing Ms.
Masharikis Employment.
20
As it is liable under federal employment law, so too is Viacom liable for violations
21
of state employment law under Californias broader definition of employer. In order to
22
be subject to liability for FEHA violations, a defendant must be considered an employer
23
under FEHA. Cal. Govt Code 12926(d). Under that section, an employer includes any
24
person regularly employing five or more persons, or any person acting as an agent of an
25
employer, directly or indirectly. Id. Like Title VII, under FEHA, multiple entities may
26
be joint employers subject to liability. Henry v. Pro*Act, LLC, No.
27
CV138821DMGMRWX, 2014 WL 12567144, at *9 (C.D. Cal. Dec. 30, 2014) (applying
28
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1 California law). Applying this doctrine promotes the purpose of FEHA, which is to
2 prevent and eliminate sexual harassment and discrimination in the workplace. Mathieu v.
3 Norrell Corp., 115 Cal. App. 4th 1174, 1184 (2004). As under federal law, a plaintiff
4 need not conclusively establish joint employment at the pleading stage. MacKinnon v.
5 Logitech Inc., No. 15-CV-05231-TEH, 2016 WL 2897661, at *5 (N.D. Cal. May 18, 2016)
6 (applying California law) (citation and internal quotation marks omitted).
7 In MacKinnon, the court denied a motion to dismiss claims against joint employer
8 defendant where the complaint alleged: (1) that decisions regarding the plaintiffs
9 employment were made by executives from both companies; (2) that employment
10 documents were signed by executives of the joint employer; (3) that the termination letter
11 was signed by an executive of the joint employer; and (4) that the joint employer issued
12 rules and policies that governed the plaintiffs employment. See id. As described in more
13 detail above, all of those things are alleged in Ms. Masharikis complaint and, more than
14 that, three of the four are explicitly established by the employment agreement itself.
15 Similarly, in Henry, the court concluded on summary judgment that two entities
16 exercised a joint employment relationship over the plaintiff under FEHA where: 1) the
17 parent company administered human resources functions for the subsidiary; 2) the parent
18 company was responsible for overseeing and administering the plaintiffs FMLA leave
19 from his position with the subsidiary; 3) the plaintiff communicated with HR for the parent
20 company regarding his medical leave; and 4) the parent company was involved in the
21 plaintiffs termination process. Henry, 2014 WL 12567144 at *10. Those facts were
22 sufficient to establish that both entities were the plaintiffs employers as a matter of law
23 even when viewing the evidence in the light most favorable to the Defendants. Id.
24 The relevant facts in Henry are indistinguishable from those in this case. BET HR
25 representatives reported directly to their supervisors at Viacom HR. (Compl. 51.) Ms.
26 Mashariki communicated with Viacom regarding her medical leave, and Viacom policies
27 governed her leave. (Compl. 59-60; Agreement 14, 20(b).) Furthermore, Viacom
28 Policies governed the Companys employment practices and policies. (Agreement,
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1 20(b).) As with the federal statutes, these facts are sufficient to establish that Viacom is
2 Ms. Masharikis employer as a matter of law and more than sufficient to defeat Viacoms
3 motion to dismiss. See, e.g., Johnson v. Golden Empire Transit Dist., No. 1:14-CV-
4 001841-JLT, 2016 WL 3999996, at *12 (E.D. Cal. July 25, 2016) (holding that the same
5 standard apply to CFRA claims as apply to FMLA claims and denying summary judgment
6 as to plaintiffs FMLA, CFRA and FEHA claims).
7 If there were any doubt that Ms. Mashariki has pled sufficient facts to establish that
8 Viacom was her employer under California law, Viacoms motion should still be denied.
9 Due to the factually intense nature of the inquiry, the Court cannot and should not make
10 the determination of whether [Viacom] qualifies as an employer on a motion to dismiss.
11 Nepomuceno v. Cherokee Medical Services, LLC, No. 13-CV-663 BTM BGS, 2013 WL
12 5670960, at *4 (S.D. Cal. Oct. 16, 2013) (applying California law). For all these reasons,
13 Viacoms motion to dismiss Ms. Masharikis employment-based claims, (Dkt. No. 17 at
14 4), Counts I through XV and Count XVII, on the basis that Viacom is not her employer
15 must be denied.
16 F. Viacom Is a Party to Ms. Masharikis Employment Agreement.
17 Viacom is a party to Ms. Masharikis employment agreement. Viacoms Executive
18 Vice President of Human Resources and Administration executed the Agreement on behalf
19 of both Viacom and BET. (Agreement, p. 16.) At common law, a corporate officer may
20 have express authority to enter into an agreement on behalf of the corporation, granted by
21 the board of directors or the corporate bylaws. Snukal v. Flightways Mfg., Inc., 23 Cal.
22 4th 754, 779 (2000). Alternatively, a corporate officer may have ostensible authority to
23 enter into an agreement on behalf of the corporation if he or she assumed and exercised the
24 power in the past with the apparent consent and acquiescence of the corporation. Id.
25 (citation and internal quotation marks omitted). In Ms. Masharikis employment
26 agreement, Mr. Mills executed the agreement in his capacity as a corporate officer of
27 Viacom. Whether Mr. Mills had express or ostensible authority to bind Viacom Inc. by
28 signing the Agreement is a question of fact, see Grummet v. Fresno Glazed Cement Pipe
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1 Co., 181 Cal. 509, 513 (1919), and so cannot be resolved on a motion to dismiss, see Elba,
2 Inc. v. JPMorgan Chase Bank, No. CV 10-9367 DSF (OPX), 2011 WL 13128428, at *3
3 (C.D. Cal. Mar. 28, 2011) (denying motion to dismiss because any ambiguity regarding the
4 meaning of a contract cannot be interpreted in the factual vacuum of a motion to dismiss).
5 Viacoms motion to dismiss Count XVI against Viacom should also be dismissed as a
6 result.
7 IV. PLAINTIFFS COMPLAINT MORE THAN SATISFIES RULE 8
8 The Complaint meets and exceeds the requirements of Federal Rule of Civil
9 Procedure 8(a)(2) that it contain a short and plain statement of the claim showing that the
10 pleader is entitled to relief. Fed. R. Civ. P. 8. Ms. Masharikis detailed Complaint
11 provides the Defendants with ample notice of exactly what they are accused of doing
12 wrong. The Factual Allegations section of the Complaint describes a comprehensive
13 course of conduct, identifying specific actors and setting forth in detail which actor did
14 what. The Complaint also employs multiple sub-headings that make clear which
15 allegations of fact support each claim. The Complaint refers to Viacom and BET
16 collectively as the Company because Viacom and BET are the joint employers of Ms.
17 Mashariki. Each Count in the Complaint specifies the particular Defendant(s) against
18 whom the particular claim is made. Finally, in the Counts themselves, the Complaint
19 includes several paragraphs summarizing the Count-specific factual allegations. In short,
20 Defendants contention that the Complaint should be dismissed as a shotgun pleading is
21 entirely without merit, and their motions to dismiss on that basis should be denied.
22 A. The Complaint References BET and Viacom Collectively as the Company
23 because BET and Viacom Are Both Ms. Masharikis Employers.
24 The Complaint accurately refers to both Viacom and BET collectively as the
25 Company because both entities are Ms. Masharikis employer and are jointly liable to her,
26 as described in detail above. Far from the pleading maneuver that Viacom attacks in its
27 Motion, (Dkt. No. 17 at 5), the language in the Complaint is consistent with the way that
28 Viacom described its employment relationship with Ms. Mashariki. Indeed, Viacom and
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1 BET themselves use the terms the Company and Viacom interchangeably throughout
2 Ms. Masharikis employment agreement. (Agreement, 3(b)(i), 3(c), 6(a), 6(b), 7(b),
3 8(a), 8(b), 9(a), 9(f), 10(b), 14, 15, 17(b), 19(d), 20(a), 20(b), 21, 22, and 27).
4 B. Plaintiffs Complaint Sets Forth Ample Facts to Support Each Claim.
5 The Factual Allegations in the Complaint are divided by easy-to-understand
6 subheadings that break the narrative into facts supporting each claim. See e.g. (Compl. at
7 IV.B. The Company Required Ms. Mashariki to Perform More Work for Less Pay and a
8 Lower Title Than Mr. Hill., corresponding to Count VII (federal EPA) and Count XV
9 (state EPA)); (IV.F. The Companys Reckless Announcement Caused a Media Storm and
10 Defamed Ms. Masharikis Character., corresponding to Count XVIII (defamation)).
11 Plaintiffs Complaint is therefore clear regarding which allegations of fact support each
12 claim. JPMorgan Chase Bank, N.A. v. Paramount Residential Mortg. Grp., Inc., No.
13 EDCV1300471JGBSPX, 2013 WL 12133894, at *4 (C.D. Cal. May 30, 2013) (denying
14 defendants motion to dismiss).
15 Contrary to Defendants suggestions in their Motions, a complaint is not a shotgun
16 pleading simply because it re-alleges previous factual paragraphs in subsequent claims.
17 See (Dkt. No. 14 at 4:12-14); (Dkt. No. 17 at 10:8-11). Indeed, in the Ninth Circuit, a
18 complaint does not employ impermissible shotgun pleading just because it re-alleges by
19 reference all of the factual paragraphs preceding the claims for relief. Sec. & Exch.
20 Commn v. Bardman, 216 F. Supp. 3d 1041, 1051 (N.D. Cal. 2016) (denying defendants
21 motion to dismiss). Rather, a complaint is an impermissible shotgun pleading only when
22 it presents an unclear mass of allegations and deprives Defendants of knowing exactly
23 what they are accused of doing wrong. Sollberger v. Wachovia Sec., LLC, No. SACV 09-
24 766 AG (ANx), 2010 WL 2674456, at *4-5. (C.D. Cal. June 30, 2010.) Ms. Masharikis
25 detailed and comprehensive Complaint bears no resemblance to a shotgun pleading.
26 Because multiple factual allegations in the Complaint support more than one Count,
27 each Count re-alleges by reference the preceding factual paragraphs. However, the
28 Complaint follows its incorporation clause with multiple paragraphs that provide
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1 additional count-specific factual allegations. Almont Ambulatory Surgery Ctr., LLC, et


2 al. v. UnitedHealth Grp., Inc., No. CV1403053MWFVBKX, 2015 WL 12777092 at *5,
3 (C.D. Cal. Oct. 23, 2015) (citation and internal quotation marks omitted) (denying
4 defendants motion to dismiss). For example, in Count III of the Complaint, the retaliatory
5 acts are set forth in paragraphs 96 and 97, which comprehensively summarize the relevant
6 factual allegations provided in detail earlier in the document. See (Compl. at Count III
7 95-97); see also (Count I, 77); (Count II, 86-87); (Count IV, 105); (Count V, 113-
8 14); (Count VI, 120-21); (Count VII, 126-27); (Count VIII, 133-34); (Count IX,
9 140-41); (Count X, 148-50); (Count XI, 158-59); (Count XII, 165-66); (Count
10 XIII, 172-74); (Count XIV, 181-82); (Count XV, 187-88); (Count XVI, 194-
11 96); (Count XVII, 200-02); (Count XVIII, 207-09). The Complaint clearly lays out
12 which factual allegations support which claim for relief.
13 C. Plaintiffs Complaint Provides Each Defendant with Adequate Notice.
14 Plaintiffs Complaint also specifies which charges pertain to which party, providing
15 each Defendant with adequate notice. The heading of each of claim include[s] a
16 parenthetical identifying the Defendant (one or both) to which the count pertains. Sec. &
17 Exch. Comm'n v. Bardman, 216 F. Supp. 3d at 1052 (citation and internal quotation marks
18 omitted); see e.g., (Compl. at 20:24 (Count I Against Defendants Viacom and BET));
19 (21:26 (Count II Against All Defendants)). Defendants citation to E.E.O.C. v. La Rana
20 is inapposite, since Ms. Masharikis Complaint does not rely on vague language such as
21 management officials and employees to support entire causes of action. See E.E.O.C.
22 v. La Rana Hawaii, LLC, 888 F.Supp.2d 1019, 1047 (D. Haw. 2012). Instead, Plaintiff
23 specifies which individual or entity is responsible for which action within each charge. See
24 e.g. (Compl. 87 (Defendant Hill engaged in conduct . . .)); ( 88 (Viacom has violated
25 its heightened legal duty . . .)); ( 89 (The hostile work environment at BET . . .)); (
26 136 (Defendant Hill and Scott Mills . . .)); ( 169 (Defendant Hill and Debra Lee . . .)).
27

28
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1 D. Defendants Motions Demonstrate They Understand Plaintiffs Allegations.


2 The specificity of Defendants Motions to Dismiss provides strong evidence against
3 accusations of shotgun pleading. The detailed nature of Defendants motions undercuts
4 their contention that it was impossible to discern which charges had been levelled against
5 them. (Dkt. No. 14 at 5:18). For instance, BETs own arguments about Mr. Hills liability
6 as an individual reveal an understanding of the subjects of Ms. Masharikis claims. See
7 (Dkt. No. 14 at 6:14-17 (Mashariki has asserted claims against [Hill], individually, in her
8 second claim for relief alleging hostile work environment Under Title VII and eighth claim
9 for relief alleging gender discrimination under FEHA.)). BET and Viacom therefore had
10 no difficulty discerning which allegations are leveled against the Company and which
11 claims also pertain to Mr. Hill in his individual capacity.
12 Defendants detailed Motions recall the defendants motion at issue in Almont. In
13 that case, the Court credited plaintiffs argument that the content of defendants motion to
14 dismiss belie[d] [their] inability to understand the nature of the allegations against [them]
15 and undermined any accusations of shotgun pleading. Almont, 2015 WL 12777092, at *5.
16 Here, Defendants comprehensive responses similarly undercut their allegations of shotgun
17 pleading.
18 Ms. Masharikis Complaint adequately pleads facts relevant to each claim and puts
19 each party on notice of what charges are leveled against it. Defendants own filings evince
20 understanding of the claims at issue and their proper subjects. The Court should therefore
21 disregard Defendants groundless characterization of the Complaint as a shotgun pleading
22 and deny their motions to dismiss.
23 V. THE COMPLAINT ADEQUATELY PLEADS A CLAIM OF DEFAMATION
24 Ms. Masharikis Complaint adequately states a claim of defamation. The Complaint
25 identifies several statements that each rise to the level of actionable defamation, clearly
26 specifying their content and context. First, Ms. Mashariki alleges that on March 29, 2017,
27 shortly on the heels of an announcement that Stephen Hill would be departing the network,
28 BETs CEO Debra Lee sent an email falsely claim[ing] that, Additionally, Zola
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1 Mashariki, EVP, and Head of Original Programming, will also be departing the network.
2 (Compl. 67-68.) Second, the Complaint alleges that the Company responded to Ms.
3 Masharikis March 30, 2017 email clarifying her status at the Company by commenting
4 publicly that, These claims misrepresent the facts and are without merit. We strongly deny
5 any allegation of wrongdoing. In addition, we will not comment on specific employee
6 matters. (Compl. 70) (quoting Carlos Greer, Exec shake-up at BET is next-level crazy,
7 Page Six, March 31, 2017). Third, Ms. Mashariki alleges that The Company later repeated
8 its false statement that Ms. Mashariki was no longer an employee: BET rep Tracy
9 McGraw, who confirms that Mashariki is no longer with the network, insists that they did
10 nothing wrong. (Compl. 71) (quoting Anonymous author, BET cans exec who says she
11 was recovering from breast cancer, New York Daily News, March 31, 2017).
12 Finally, the Complaint alleges that a network insider informed Page Six that, [Ms.
13 Mashariki] was terminated as a result of her own performance prior to taking medical leave.
14 They then allowed her to keep her contract, so she was able to keep her salary and benefits
15 after being diagnosed. She is definitely terminated. (Compl. 72) (quoting Carlos Greer,
16 Exec shake-up at BET is next-level crazy, Page Six, March 31, 2017). Though at this
17 stage the Complaint does not identify this speaker by name, a reader of this statement would
18 reasonably conclude that the anonymous network insider is a BET employee, and the
19 identity of the speaker will be revealed once discovery commences. In California, [l]ess
20 particularity is required when it appears that [the] defendant has superior knowledge of the
21 facts, so long as the pleading gives notice of the issues sufficient to enable preparation of
22 a defense. Okun v. Superior Court, 29 Cal.3d 442, 458 (1981). Here, the Complaint puts
23 the Defendants on notice of the date and context of this final remark such that they are able
24 to prepare a defense until the identity of the network insider is discovered.
25 The Complaint thus identifies the date, speaker, audience, and content of each
26 statement. The Complaint also alleges that each of the above statements was false, since
27 they each falsely reported Ms. Masharikis departure from BET before her actual
28 termination on April 11, 2017. See (Compl. 74) (The written notice Ms. Mashariki
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1 received gives notice that she was terminated on April 11, 2017, after the company
2 announced Ms. Mashariki was leaving.). The relevant cause of action (Count XVII,
3 Defamation) repeatedly refers to the above statements as false statements, (see Compl.
4 207), and alleges that Defendants conduct has been deliberate, willful, oppressive,
5 malicious, fraudulent, and conducted in callous disregard of Ms. Masharikis rights.
6 (Compl. 211.) Ms. Masharikis Complaint therefore adequately states a claim for
7 defamation.
8 Once a Plaintiff has identified allegedly defamatory statements, the basic elements
9 of a defamation claim are as follows: (1) The Defendant made one or more of the
10 statements to persons other than Plaintiff; (2) These people reasonably understood that the
11 statements were about Plaintiff; (3) These people reasonably understood the statements to
12 mean that Ms. Mashariki had been terminated from BET for alleged performance issues;
13 and that (4) Defendant failed to use reasonable care to determine the truth or falsity of the
14 statements. Judicial Council of California Civil Jury Instructions (2017) No. VF-1704
15 Defamation per se (Private Figure Matter of Private Concern). Only if the plaintiff is a
16 general or limited purpose public figure must she meet the higher standard of showing that
17 (4) Defendant knew the statements were false or had serious doubts about the truth of the
18 statements. CACI No. 1700 Defamation per se (Public Officer / Figure and Limited
19 Public Figure). Accepting all the factual allegations of the Complaint as true and drawing
20 all reasonable inferences in favor of Ms. Mashariki, the Complaint adequately states a
21 claim for defamation under either standard.
22 A. The Statements Alleged in the Complaint Were False.
23 Viacom terminated Ms. Mashariki on April 11, 2017. (Compl. 74.) Each
24 statement wrongfully announcing Ms. Masharikis termination was made in February or
25 March of 2017, well before the date of Ms. Masharikis termination. See (Compl. at 67-
26 72.) The statements were therefore false at the time that they were made.
27 In their Motion to Dismiss, BET contends that the above statements were true. See
28 (Dkt. No. 14 at 9:24). BET suggests that Ms. Mashariki admits she was told on February
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1 28, 2017, that her employment was being terminated. See id. at 10:11-12 (citing Compl.
2 63.) Contrary to BETs assertion, the relevant portion of the Complaint states that the
3 Company attempted to terminate Ms. Mashariki on February 28, but that in light of her
4 response to the attempted termination, the Company did not terminate Ms. Mashariki at
5 that time. (Compl. 63) (emphasis added). Therefore, given the date of Ms. Masharikis
6 termination and the dates of the statements, Ms. Mashariki adequately pleads that the
7 statements were false at the time that they were made.
8 If there were any doubt that Ms. Mashariki has sufficiently pled the falsity of the
9 above statements, Defendants motions should still be denied since the truth or falsity of
10 the statements cannot be appropriately decided at this stage of the proceedings. See
11 Pacquiao v. Mayweather, 803 F. Supp. 2d 1208, 1212 (D. Nev. 2011) (If a statement is
12 susceptible to different constructions, resolution of any ambiguity is a question of fact for
13 the jury.) (citations omitted).
14 B. Ms. Mashariki Is Not a Public Figure.
15 Ms. Mashariki is neither a general purpose nor limited purpose public figure, and is
16 therefore not required to prove malice. A general purpose public figure is one who has
17 achieved such pervasive fame or notoriety that he or she becomes a public figure for all
18 purposes and contexts. Ampex Corp. v. Cargle, 128 Cal. App. 4th 1569, 1577 (2005).
19 This definition is to be strictly construed and doubts are to be resolved in favor of a person
20 being either a limited purpose public figure or a private person. Harris v. Tomczak, 94
21 F.R.D. 687, 701 (E.D. Cal. 1982). As their Motion seems to concede, (Dkt. No. 14 at 10-
22 11), Defendants cannot plausibly contend that Ms. Mashariki is a general purpose public
23 figure.
24 Neither is Ms. Mashariki a limited purpose public figure. In order to find that an
25 individual is a limited purpose public figure, First, there must be a public controversy,
26 which means the issue was debated publicly and had foreseeable and substantial
27 ramifications for nonparticipants. Second, the plaintiff must have undertaken some
28 voluntary act through which he or she sought to influence resolution of the public issue. In
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1 this regard it is sufficient that the plaintiff attempts to thrust him or herself into the public
2 eye. And finally, the alleged defamation must be germane to the plaintiff's participation in
3 the controversy. Ampex, 128 Cal. App. 4th at 1577 (citing Copp v. Paxton, 45 Cal. App.
4 4th 829, 845846 (1996)).
5 The Company fails to identify any public controversy or debate that Ms. Mashariki
6 was engaged in prior to the events of this lawsuit. The Company further fails to identify
7 any voluntary actions that Ms. Mashariki undertook to thrust herself into the public eye
8 regarding a matter of public concern. The cases that BET cites on this point are inapposite.
9 They involve the head coach and/or general manager for several NBA franchises (Roe v.
10 Doe, No. C 09-0682 PJH, 2009 WL 1883752, at *7 (N.D. Cal. June 30, 2009)), a plastic
11 surgeon who thrust himself into [the debate about plastic surgery] by appearing on local
12 television shows as well as writing numerous articles in medical journals and beauty
13 magazines, touting the virtues of cosmetic and reconstructive surgery. . . testif[ying] as an
14 expert witness on the subject and advertis[ing] his services in the local media (Gilbert v.
15 Sykes, 147 Cal. App. 4th 13, 25 (2007)), and an individual who voluntarily engaged in a
16 publicized debate about publicly held reserved land (see Rudnick v. McMillan, 25 Cal. App.
17 4th 1183, 1190 (1994)). Each of these individuals was involved in a debate regarding a
18 subject of widespread public concern, or voluntarily took on a role with exceptionally high
19 visibility, such as an NBA coach. Ms. Mashariki does not fit either mold.
20 BET references the media storm around Ms. Masharikis alleged termination as
21 evidence of her status as a public figure. (See Dkt. No. 14 at 12:1-4) (Indeed, as Mashariki
22 alleges, the press was interested in her employment status, and the attention it received . .
23 . (citing Compl. 68-70, 72.)). However, it is well-established that [t]he fame or
24 notoriety achieved by a public figure must have preexisted the allegedly defamatory
25 statements which give rise to the litigation. Harris v. Tomczak, 94 F.R.D. at 701. Indeed,
26 those charged with defamation cannot, by their own conduct, create their own defense by
27 making the claimant a public figure. Khawar v. Globe Intl, Inc., 19 Cal. 4th 254, 266
28 (1998), as modified (Dec. 22, 1998) (citation and internal quotation marks omitted).
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1 Even if questions remain as to Ms. Masharikis status as a public figure, the question
2 of whether she is a limited purpose public figure is one of mixed law and fact to be
3 resolved by the trial court. Am. Dental Assn v. Khorrami, No. CV 02-3853-
4 RSWL(RZX), 2006 WL 5105271, at *1 (C.D. Cal. June 9, 2006). The determination of
5 whether a plaintiff is a limited public figure is often a close question which can only be
6 resolved by considering the totality of the circumstances which comprise each individual
7 controversy. Annette F. v. Sharon S., 119 Cal. App. 4th 1146, 1163 (2004) (quoting
8 Readers Digest Assn. v. Superior Court, 37 Cal.3d 244, 252 (1984)). It would be
9 inappropriate to resolve such a close question of mixed law and fact at the motion to dismiss
10 stage.
11 C. Ms. Mashariki Has Adequately Pled Actual Malice.
12 Assuming arguendo that Ms. Mashariki is a public figure, her Complaint adequately
13 alleges malice on the part of the Defendants. In the context of defamatory statements,
14 malice means only that an allegedly defamatory statement was made with knowledge of
15 falsity or reckless disregard for truth. Ampex Corp v. Cargle 128 Cal. App. 4th at 1577
16 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 279280 (1964)). The Complaint
17 states that:
18 Defendants Viacom and BET harmed Ms. Mashariki by falsely telling reporters that
19 Ms. Masharikis March 30, 2017 email to her team misrepresented the facts and were
20 without merit. Defendants Viacom and BET also failed to clarify and/or mitigate false
21 statements that suggested that Ms. Mashariki had been terminated because of her
22 performance, despite being on notice of the unlawful defamation and corresponding
23 damage.
24 (Compl. 207) (emphasis added).
25 Ms. Mashariki therefore adequately pleads that Defendants defamatory statements
26 were made with knowledge of the falsity of such statements, or, at the very least, with
27 reckless disregard as to their truth or falsity. The Complaint also alleges that Viacom and
28 BET deliberately failed to cure the damage caused by such malicious statements. Lastly,
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1 the Complaint states that Defendants conduct has been deliberate, willful, oppressive,
2 malicious, fraudulent, and conducted in callous disregard of Ms. Masharikis rights.
3 (Compl. 211.) As the Ninth Circuit articulated in Flowers v. Carville, a Complaint need
4 only aver[] the required state of mind generally to survive a motion to dismiss. Flowers
5 v. Carville, 310 F.3d 1118, 1131 (9th Cir. 2002) (reversing dismissal of defamation claims
6 on the grounds that plaintiff had adequately pled malice despite not having produced
7 corroborating evidence).
8 Finally, the question of Defendants malice is not ripe for resolution on a motion to
9 dismiss. See id. (Actual malice is a subjective standard that turns on the defendant's state
10 of mind; it is typically proven by evidence beyond the defamatory publication itself. For
11 that reason, the issue of actual malice ... cannot be properly disposed of by a motion to
12 dismiss, where the plaintiff has had no opportunity to present evidence in support of his
13 allegations. (quoting Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 848 (9th Cir. 2001)).2
14 Plaintiffs Complaint adequately states a claim for defamation. Accordingly, BETs
15 and Viacoms motions to dismiss Plaintiffs defamation claims (Dkt. No. 14 at 6-13; Dkt.
16 No. 17 at 6-7) must be denied.
17 D. Viacom Employees Made Defamatory Statements.
18 Viacom is liable for the defamatory statements made by its employees. Under
19 California law, an employer may be held liable for defamatory statements made by its
20
2
21
BET argues in a conclusory footnote, citing no authority, that the defamatory statements
are covered by the common interest privilege. (Dkt. No. 14 at 10 n.4.) California Civil
22 Code section 47(c) extends a conditional privilege against defamation to statements made
23 without malice on subjects of mutual interests. Hawran v. Hixson, 209 Cal. App. 4th 256,
287 (2012) (citing Cal. Civ. Code 47) (emphasis added). In applying the privilege, [the]
24 defendant has the initial burden of showing the allegedly defamatory statement was made
25 on a privileged occasion. Family Home & Fin. Ctr., Inc. v. Fed. Home Loan Mortg. Corp.,
461 F. Supp. 2d 1188, 1197 (C.D. Cal. 2006). BETs argument is without merit for several
26 reasons, but the argument fails on its motion to dismiss for the simple reason that the
27 Complaint alleges the statements were made with malice. Since the analysis required to
establish common interest privilege necessarily involves the fact-intensive question of
28 malice, the issue of privilege should not be resolved on a motion to dismiss.
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1 employees under the doctrine of respondeat superior. Respondeat superior liability is


2 triggered if the defamation occurred within the scope of the employees employment.
3 Rivera v. Natl R.R. Passenger Corp., 331 F.3d 1074, 1080 (9th Cir.), amended, 340 F.3d
4 767 (9th Cir. 2003).
5 Viacoms motion appears to be based on its contention that none of the defamatory
6 statements were made by anyone employed by Viacom. (Dkt. No. 17 at 7.) The
7 Complaint, however, alleges that the defamatory statements were made by employees of
8 the Company, including Debra Lee, Tracy McGraw, Defendant Hill, and an anonymous
9 insider. As discussed supra, Section III, BET executives such as Defendant Hill, Ms.
10 McGraw, and Ms. Lee are employees of both Viacom and BET. To the extent that Viacom
11 contends that it is not the employer of any of the speakers identified in the Complaint, that
12 is a question of fact that cannot be resolved at the motion to dismiss stage. See
13 Nepomuceno, 2013 WL 5670960 at *4. Viacoms motion to dismiss the defamation claim
14 should be denied to the extent it disputes that it employed the individuals who made the
15 defamatory statements.
16 VI. BET CANNOT MOVE ON CLAIMS AGAINST DEFENDANT HILL
17 In its motion to dismiss, BET asks the Court to dismiss two counts against Defendant
18 Hill in his individual capacity, even though the attorneys who filed the motion did so only
19 on behalf of Defendants Viacom and BET, not Hill. (Dkt. No. 14 at 6.) Counsel who do
20 not represent a party may not file motions on behalf of that party. See Deeds v. Bayer, No.
21 3:03 CV 00453LRHVP, 2007 WL 1232230, at *6 (D. Nev. Apr. 26, 2007) (striking
22 defendants counter-motion to dismiss because defendants lack standing to bring a motion
23 to dismiss on behalf of a party whom it [sic] does not represent).
24 Subsequently, Defendants counsel, appeared for Defendant Hill and filed a motion
25 on behalf on Defendant Hill regarding the counts against him in his individual capacity on
26 June 23, 2017, (Dkt. Nos. 24-26). Plaintiff will respond substantively to requests to dismiss
27 Defendant Hill in the context of Defendant Hills own proper motion. BETs motion to
28
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1 dismiss on Hills behalf should therefore be dismissed for lack of standing and because it
2 is mooted by Defendant Hills motion.
3 VII. CONCLUSION
4 BETs and Viacoms Motions to Dismiss (Dkt. Nos. 13 and 16) should be denied
5 for the foregoing reasons and this matter set for a case management conference at the
6 Courts earliest convenience.
7 Dated: June 26, 2017 Respectfully Submitted,
8

9 _____________________________
Felicia Medina
10

11 Felicia Medina
Jennifer Orthwein
12
MEDINA ORTHWEIN LLP
13
Xinying Valerian
14
Kevin Love Hubbard
15 SANFORD HEISLER SHARP, LLP
16
Attorneys for Plaintiff Zola Mashariki
17

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