1

LAW OFFICE OF CALVIN CHANG

2 CALVIN CHANG (SBN 277851)
980 - 9* Street, 16"^ Floor
3 Sacramento, Caiifomia 95814 SY . ueDuty
Telephone: 916.538.0225 Casts Nui'iibKf:
4
calvin(a).calvinchanglaw.com 34-2018-00241418
5

6 Attorneys for Plaintiff MICHAE ALLSTON

7

8 SUPERIOR COURT OF THE STATE OF CALIFORNIA

9 COUNTY OF SACRAMENTO

10
MICHAE ALLSTON, an individual. CASE NO.
11
Plaintiff, PLAINTIFF'S COMPLAINT FOR:
00 t.
S E 12
.2 , 1) SEXUAL HARASSMENT
•s:§
p M 13 MEDICAL BOARD OF CALIFORNIA; (Gov. Code § 12940(j)(l), et seq.;
O ±5 I i DEPARTMENT OF CONSUMER AFFAIRS;
RUBEN RUBIO, in his individual and official
(U d"> 2) DISCRIMINATION , SEX (FEMALE)
ei U U 15 capacities; and DOES 1 through 20, inclusive, (Govt Code § 12940(a));
is
16
3) RETALIATION
Defendants.
17 (Govt. Code § 12940(h));

18 4) FAILURE TO PREVENT DISCRIMINATION

(Govt. Code § 12940(k));
19

20

21 UNLIMITED CIVIL ACTION

22
JURY TRIAL DEMANDED
23

24
NATURE OF THE ACTION
25
1. This is an individual action brought by Plaintiff MICHAE ALLSTON ("Plaintiff'), a
26
Program Technician II employed by The Medical Board of Caiifomia ("MBC"), which knowingly
27
permitted Defendant RUBEN RUBIO ("Defendant RUBIO"), a Supervising Program Technician II,
28 to subject her to sexual harassment, including an act of unwanted sexual assault of Plaintiff in the

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COMPLAINT FOR DAMAGES
 MBC workplace. Plaintiff alleges violations of the Fair Employment and Housing Act.
JURISDICTION AND VENUE
2. Pursuant to the Caiifomia Constitution, subject matter jurisdiction is proper in the
Superior Court of Caiifomia, County of Sacramento, in the State of Caiifomia.
3. Pursuant to the Caiifomia Code of Civil Procedure, venue is proper in the Superior
Court of Caiifomia for the County of Sacramento, in the State of Caiifomia, because this is where
Defendants do business, and maintains its headquarters and personnel records.
4. The jurisdiction of this Court is proper for the relief sought herein, and the amount
demanded by Plaintiff exceeds $25,000.
10 THE PARTIES
11 5. Plaintiff MICHAE ALLSTON ("Plaintiff") is an individual residing in the county of

J ^ u-i q Sacramento, Caiifomia. During all relevant times. Plaintiff was employed as a Program Techriician
r- ™ 5
II, MBC, in Sacramento, Caiifomia.

O £'
14 6. Defendant MEDICAL BOARD OF CALIFORNIA ("MBC") is a state govemment
e l g 315 agency of the State of Caiifomia, which licenses and disciplines medical doctors. The Board provides
i 16 two principal types of services to consumers: public-record information about California-licensed
17 physicians, and investigation of complaints against physicians.. MBC's headquarters were located at
18 2005 Evergreen Street, Suite 1200, Sacramento, California, 95815. MBC is a division of the
19 Department of Consumer Affairs. MBC employs both Plaintiff and Defendant RUBIO. MBC
20 employs more than five individuals and is an employer subject to the Caiifomia Fair Employment
21 and Housing Act.

22 7. Defendant DEPARTMENT OF CONSUMER AFFAIRS ("DCA") is a state

23 govemment agency of the State of Caiifomia of which the MBC is a division.

24 8. Defendant RUBEN RUBIO (Defendant Rubio) is an individual, on information and

25 belief residing in county of San Joaquin, Caiifomia. Defendant RUBIO is being sued in both his

26 individual and official capacities. Defendant RUBIO was a supervisory employee of Defendant

27 MBC and DCA, and during all relevant times was PlaintifPs direct supervisor.

28 9. All named Defendants will be collectively referred to as "Defendants," except where

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C O M P L A I N T FOR D A M A G E S
 necessary to distinguish them apart. Defendants are persons or entities subject to the provisions of the
FEHA.
10. MBC and DCA is further liable for the acts of Defendant RUBIO committed within
the scope of his employment and under vicarious liability.
11. At all times herein mentioned, Defendants, whether or not specifically identified or
designated herein as a DOE, and each of them, were the agents, employees, servants, partners,
independent contractors, joint ventures and participants with all other Defendants, and with each
other, and in doing the things hereinafter mentioned, were agents, employees, servants, partners, joint
ventures, and with the consent and permission of the co-Defendants, and each of them.
10 12. The true names and capacities, whether individual, corporate, associate or otherwise of
11 the Defendants named herein as DOES 1 through 20, are unknown to Plaintiff at this time. Plaintiff
therefore sues said Defendants by suchfictitiousnames pursuant to section 474 of the Caiifomia
Code of Civil Procedure. Plaintiff" will seek leave to amend this Complaint to allege the true names
•a ~ =2 §
and capacities of DOES 1 through 20 when their names are ascertained. Plaintiff is informed and
e l s s 15 believes, and based thereon alleges, that each of the DOE Defendants is in some manner liable to the
o . s * Plaintiff for the events and actions alleged herein.
.3^1 ^ 16
17 13. Plaintiff is informed and believes, and thereon alleges, that at all times, each
18 Defendant was acting as an agent for each of the other Defendants and each were co-conspirators
19 with respect to the acts and the wrongful conduct alleged herein so that each is responsible for the
20 acts of the other in connection with the conspiracy in such wrongftil acts in connection with the other

21 Defendants.

22 EXHAUSTION OF ADMINISTRATIVE REMEDIES

23 14. Plaintiff timely exhausted her administrative remedies with the Caiifomia Department

24 of Fair Employment and Housing ("DFEH") on May 10, 2018, when she filed a claim for (1) sexual

25 harassment; (2) Retaliation; (3) Discrimination based sex/gender; and (4) Failing to Prevent. These

26 allegations were alleged against all Defendants. On May 10, 2018, the DFEH issued Plaintiff a

27 Right-to-Sue Letter, which Plaintiff subsequently and timely served on Defendants (DFEH Matter

28
Number 201805-02211210).

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C O M P L A I N T FOR D A M A G E S
 1
GENERAL ALLEGATIONS
2
15. In April 2013, Plaintiff began her employment with the Medical Board of Caiifomia,
3
2005 Evergreen Street #1200, Sacramento, Caiifomia. She is employed as a Program Technician II,
4
16. Plaintiff was supervised in the Central Information Unit ("ClU"), by Ruben Rubio
5
("Rubio"), Supervising Program Technician II. Continuously throughout 2016 and continuing, Rubio
6 subjected Plaintiff to unwelcome verbal and physical conduct of sexual nature. The harassment was
7 severe and pervasive and created a hostile work environment.
17. The conduct includes, but was not limited to, unwelcome verbal, visual, and physical
conduct. Rubio subjected Plaintiff to pervasive sexual gestures. For example, when she was
10 reaching down into the refrigerator in the CIU kitchenette; Rubio would make comments to me like
11 "a little more to the left", and "I think you should reach deeper in there."
18. Plaintiff repeatedly objected and protested the harassment, but Rubio continued, and
his conduct became more severe. Rubio would be gazing and leering at Plaintiff while he was leaned
back with a sexual look that was inappropriate.
19. Beginning in or about January 2017 and continuing, Plaintiff would use the shower
soil
.3-1 ^ 16 facilities at the worksite. When she would do so, Rubio would ask if he could watch her naked. He
17 would say: "Can 1 come watch?" or "If I come knock on the door, would you let me in?' Plaintiff
18 would immediately try to escape from him. Plaintiff was fearful that Rubio would come looking for
19 her. The conduct interfered with her ability to work.
20 20. For example, on August 8, 2017, Plaintiff arrived to work at approximately 9:00 am
21 which was her usual start time. Plaintiff avoided Rubio for approximately an hour. When she arrived

22 to CIU, Rubio said he wanted to meet with her. He took her to a small conference room and with

23 another manager present, inquired of where she had been for an hour. Plaintiff was too embarrassed

24 to reveal why she had been hiding for an hour. She replied, "1 was in the facilities". Ms. Rubio was

25 interrogated and left the meeting in tears embarrassed that she had to explain in such detail of her

26 personal information to her harasser.

27 21. Thereafter, Rubio said to Plaintiff "you weren't in the shower." Plaintiff did not say

28 anything and would walk away. Plaintiff felt extreme embarrassment and stopped using the facilities

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C O M P L A I N T FOR DAMAGES
 1 at work.
2
22. In or about July 2017, in another incident, while Plaintiflf was standing next to Rubio
3
inside his cubical asking him a question, as he answered her question, he leaned forward, dropped his
4
left hand down and rubbed her inner thigh. Plaintiff abruptly moved back in shock.
5 23. On or about November 12, 2017 in the late in the aftemoon inside CIU, Rubio handed
6 Plaintiff a packet of scanning instructions. Rubio walked over to the desk, leaned really close down
7 next to her on her right side at this point Plaintiff started to feel extremely uncomfortable because
8 at this point she had a gut feeling what he was attempting to try and get away with. Plaintiff pointed
9 to what she thought was a mistake on the page, while attempting to make her believe he was going to
10 raise his right hand to also point to confirm the mistake, he took his right hand and put his index and
11 middle fingers down the front of Plaintiff s blouse.
S o 00 E 24. Plaintiff quickly smacked Rubio's hand away and said to him "stop". He stood up
straight and walked away.
's |(3 g 14 25. In or about September or October 2017, while Plaintiff was walking past Rubio's desk
8 * o">
he exclaimed, "yesss," in a sexually suggestive manner.
e | | 215
26. Rubio himself informed Plaintiff that he had a sexual harassment case pending against
16
him from when he was employed by his prior state agency employer. This case was open at the time
17
Rubio sought and obtained employment as a supervisor at DCA.
18
27. On or about November 27, 2017, Plaintiff filed a formal complaint of Sexual
19
Harassment and Retaliation. Yet MBC did not remove Rubio from her workplace. Plaintiff was also
20
not offered any accommodation or leave. MBC failed to prevent discrimination. MBC failed
21
conduct an adequate and timely investigation, failed to notify the Caiifomia Highway Patrol to report
22
its employee had been sexually assaulted in the state workplace, and failed to take adequate steps to
23
prevent sexual harassment.
24
28. During all relevant times MBC was aware or should have been aware that Ruben was
25
engaged in unwelcome sexual conduct in the workplace but failed to prevent his conduct. MBC was
26
aware during the relevant times that Rubio engaged in violation of MBC's Sexual Harassment
27
policies. MBC ratified all of Rubio's unlawful conduct by deliberately ignoring its policies; and
28

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COMPLAINT FOR DAMAGES
 1
failed to take appropriate and required actions to prevent and remediate Rubio's unlavvful conduct
2
towards Plaintiff. MBC further ratified unlawful conduct when it failed to impose any corrective or
3
disciplinary action against Rubio for his unlawful conduct in subjecting Plaintiff to sexual harassment
4 and retaliation.
5
29. As a result of Defendant's unlawful employment practices. Plaintiff has been denied
6 wages and benefits, lost work assignments, and overtime opportunities, and suffered emotional
7 distress.
30. As a direct result of the Defendant's unlawful conduct, Plaintiff has also suffered
severe emotional distress and physical symptoms such as anxiety, worry, humiliation, anguish,
10 embarrassment, and loss of self-esteem, sleep disruption, among other conditions.
11 31. As set forth by the factual allegations, and further set forth below, the conduct listed
S S 5 E 12 above was malicious, fraudulent, and/or oppressive, and done with a willful and conscious disregard
for Plaintiffs rights and for the deleterious consequences of Defendants' actions.
^1^1 14 FIRST CAUSE OF ACTION
e | g s 15 (SEXUAL HARASSMENT)
o . i%
jCTv^ ? 16 (Cal. Govt. Code § 12940(j)(l) et. seq.)
17 (Against All Defendants)
18 32. Plaintiff hereby incorporates by reference the foregoing paragraphs, as though fully set
19 forth herein.
20 33. Defendant MBC and DCA is an employer in the state of Caiifomia, as defined in the

21 Caiifomia Fair Employment and Housing Act ("FEHA"). Defendants, and each of them, acted as

22 agents, directly or indirectly, of Defendant MBC and DCA violating the FEHA and were therefore

23 also employers, or individuals subject to the FEHA, in the state of Caiifomia, as defined in the

24 Caiifomia Fair Employment and Housing Act ("FEHA").

25 34. Under Caiifomia Govemment Code § 12940(j)(l), it is an unlawful for an employer or

26 person to harass an employee on account of that person's sex, including subjecting an employee to

27 sexual harassment.

28 35. Defendant MBC and DCA and Defendant RUBIO harassed and sexually harassed

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C O M P L A I N T FOR DAMAGES
 1 Plaintiff on the basis of her sex (female), in violation of the California Fair Employment and Housing
2
Act.
3
36. Plaintiff filed a charge of sex harassment with the Caiifomia Department of Fair
4 Employment and Housing within one year of the continuing discrimination. The Department issued
5 Plaintiff a right-to-sue letter within one year of the filing of this complaint. Plaintiff has exhausted hei
6 administrative remedies.
7 37. In engaging in the foregoing conduct. Defendants had knowledge of, aided, abetted,
8 incited, participated in, coerced and/or compelled unlawful employment practices in violation of
9 Califomia's Fair Employment and Housing Act.
10 38. Defendants violated the FEHA when it subjected Plaintiff, to a broad range of
11 conduct, ranging from expressly or impliedly conditioning employment benefits on submission to or
f S S E 12 tolerance of unwelcome sexual advances, to the creation of a work environment that is hostile or
abusive on the basis of sex. Such a hostile environment was created when plaintiff was subjected to
^|c3| 14 sexual advances, furthered by permitting said conduct and conditions to occur and subjecting Plaintiff
o'>
e | g s 15 to a hostile work environment based on either severe and/or pervasive acts of unwelcome and
o . i ^
* o 2
T ON
16 offensive physical, visual, or verbal harassment. These conditions interfered with Plaintiffs working
17 conditions.
18 39. As a direct and foreseeable result of the aforesaid acts of said Defendants, Plaintiflf has
19 lost and will continue to lose income and benefits in an amount to be proven at the time of trial.

20 Plaintiff claims such amount as damages together with pre-judgment interest pursuant to Civil Code

21 section 3287 and/or any other provision of law providing for pre-judgment interest.

22 40. As a result of the aforesaid acts of Defendants, Plaintiff claims general damages for

23 mental and emotional distress and aggravation in an amount to be proven at the time of trial.

24 41. As a result of the aforesaid acts of Defendants, Plaintiff is required to employ

25 physicians and psychologists to examine, treat her, and will incur additional medical expenses in an

26 amount to be proven at the time of trial.

27 42. The above described acts of Defendants, by and through their managing agents,

28 officers or directors, were engaged in with a deliberate, cold, callous, fraudulent and intentional

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COMPLAINT FOR DAMAGES
 1
manner in order to injure and damage Plaintiff and/or with a conscious disregard of Plaintiff and her
2
rights. Such acts were despicable, and constitute malice, fraud and/or oppression within the meaning
3
of Civil Code section 3294. Plaintiff requests an assessment of punitive damages against Defendant
4 Rubio in an amount to be proven at time of trial.
5 43. Plaintiff will also seek and is entitled to recover attomey's fees in connection with this
6 cause of action under Govemment Code section 12965(b), et seq.
7 SECOND CAUSE OF ACTION
(SEX DISCRIMINATION)

(Cal. Govt. Code § 12940(a) et. seq.)

10 (Against Defendant MBC and DCA)
11 44. Plaintiff refers to and herein incorporates each above paragraph inclusively.
?P ^ - e 19
45. Defendant MBC and DCA is an employer in the state of Caiifomia, as defined in the
Caiifomia Fair Employment and Housing Act ("FEHA").
^ S
^ P l 14 46. Under Caiifomia Govemment Code section 12940(a), it is an unlawful for an
4) IZ3 o ' ' >
e | g l 15 employer to discriminate against a person in compensation or in terms of conditions or privileges of
O* O, K
E 5

>-J
T ON OT
rn
16 employment, on account of that person's sex.
17 47. As set forth above, Defendant MBC and DCA violated the FEHA by subjecting
18 Plaintiff to discrimination because she is female; denying her wages and benefits that she was entitled
19 to under state law based on its unlawful practice of failing to take immediate and appropriate
20 remedial, preventative, and corrective action to prevent sexual harassment. By such failure,
21 defendant's unlawful employment practice deprived Plaintiff of the ability to remain at work; instead.
22 Plaintiff had to take days off and avoid assignments and overtime in order to avoid Defendant

23 RUBIO.

24 48. The acts or omission of Defendant in subjecting Plaintiff to discrimination had an

25 adverse a disparate impact on female employees like Plaintiff; and those who complained about or

26 opposed discrimination.

27 49. In engaging in the foregoing conduct. Defendants had knowledge of, aided, abetted,

28 incited, participated in, coerced and/or compelled unlawful employment practices in violation of

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C O M P L A I N T FOR D A M A G E S
 1 Califomia's Fair Employment and Housing Act.
2
50. As a direct and foreseeable result of the aforesaid acts of said Defendants, Plaintiff has
3
lost and will continue to lose income and benefits in an amount to be proven at the time of trial.
4 Plaintiff claims such amount as damages together with pre-judgment interest pursuant to Civil Code
5 section 3287 and/or any other provision of law providing for pre-judgment interest.
6 51. As a result of the aforesaid acts of Defendants, Plaintiff claims general damages for
7 mental and emotional distress and aggravation in an amount to be proven at the time of trial.
8 52. As a result of the aforesaid acts of Defendants, Plaintiff is required to employ
9 physicians and psychologists to examine, treat her, and will incur additional medical expenses in an
10 amount to be proven at the time of trial.
11 53. Plaintiff will also seek and is entitled to recover attomey's fees in connection with this
cause of action under Govemment Code section 12965(b), et seq.
THIRD CAUSE OF ACTION
14 (RETALIATION)
e | g s 15
O .E 5
(Cal. Govt. Code § 12940(h))
So 2 S
1-"'-^16
0» TO (Against Defendants MBC and DCA)
17 54. Plaintiff refers to and herein incorporates each above paragraph inclusively.
18 55. Defendants is an employer in the state of Caiifomia, as defined in the Caiifomia Fair
19 Employment and Housing Act ("FEHA").
20 56. Govemment Code section 12940 subd. (h), provides that it is unlawful for any

21 employer, or person to discharge, expel, or otherwise discriminate against any person because the

22 person has opposed any practices forbidden under this part or because the person has filed a

23 complaint, testified, or assisted in any proceeding under this part. It is also unlawful to discriminate

24 against a person for requesting a reasonable accommodation for disability.

25 57. Defendant has an unlawful policy or practice of ignoring complaints of sexual

26 harassment and discrimination and subjecting employees who engage in such protected activity to

27 discrimination.

28 58. Defendants subjected Plaintiff to adverse employment actions and other

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C O M P L A I N T FOR D A M A G E S
 1 discriminatory actions because she engaged in protected activity within the meaning of the FEHA.
2
59. The acts or omission of Defendant in subjecting Plaintiff to discrimination had an
3 adverse a disparate impact on female employees like Plaintiff; and those who complained about or
4 opposed discrimination.
5 60. Plaintiffs protected conduct was a substantial motivating reason for the Defendants'
6 adverse employment actions against her.
7 61. As a direct and foreseeable result of the aforesaid acts of said Defendants, Plaintiff has
8 lost and will continue to lose income and benefits in an amount to be proven at the time of trial.
9 62. As a result of the aforesaid acts of Defendants, Plaintiff claims general damages for
10 mental and emotional distress and aggravation in an amount to be proven at the time of trial.
11 63. Plaintiff will also seek and is entitled to recover attomey's fees and costs, including
OD u.
5 o S E 12 expert witness fees, pursuant to Gov. Code section 12965 subd. (b), et seq.
(J (i. v-» Q
0\ 3
.£•5 FJ
.> !S
« ., I f 13 FOURTH CAUSE OF ACTION
(FAILURE TO PREVENT DISCRIMINATION)

e« I o 15 (Cal. Govt. Code § 12940(k))

I ^ 16 (Against Defendants MBC and DCA)
17 64. Plaintiff refers to and herein incorporates each above paragraph inclusively.
18 65. Defendants are an employers in the state of California, as defined in the Caiifomia
19 Fair Employment and Housing Act ("FEHA"). Defendants, and each of them, acted as agents,
20 directly or indirectly, of Defendants violating the FEHA and were therefore also employers in the

21 state of Caiifomia, as defined in the Caiifomia Fair Employment and Housing Act ("FEHA").

22 66. Defendants failed to take all reasonable steps necessary to prevent discrimination and

23 harassment from occurring.

24 67. Plaintiff filed a complaint with the Caiifomia Department of Fair Employment and

25 Housing within one year of the discrimination. The Department issued Plaintiff right-to-sue letters

26
within one year of the filing of this complaint. Plaintiff has exhausted her administrative remedies.

27 68. In engaging in the foregoing conduct. Defendants aided, abetted, incited, participated

28
in, coerced and/or compelled unlawful employment practices in violation ofthe Caiifomia Fair

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C O M P L A I N T FOR D A M A G E S
 1
Employment and Housing Act.
2
69. As a direct and foreseeable result of the aforesaid acts of said Defendants, Plaintiff has
3
lost and will continue to lose income and benefits in an amount to be proven at the time of trial.
4
Plaintiff claims such amount as damages together with pre-judgment interest pursuant to Civil Code
5
section 3287 and/or any other provision of law providing for pre-judgment interest.
6
70. As a result of the aforesaid acts of Defendants, Plaintiff claims general damages for
7 mental and emotional distress and aggravation in an amount to be proven at the time of trial;
8 71. As a result of the aforesaid acts of Defendants, Plaintiff has been and will in the
9 future, be required to employ physicians and psychologists to examine, treat her, and will incur
10 additional medical expenses in an amount to be proven at the time of trial.
11 72. Plaintiflf will also seek and is entitled to recover attomey's fees in connection with this
f S S E 12 cause of action under Govemment Code section 12965(b), etseq.

lilt" PRAYER
WHEREFORE, Plaintiff prays for judgment against Defendants as follows:
o'>
e i g s 15 1. For compensatory damages, including but not limited to lost wages and future loss of
O* o. 2
ES
a 16 eamings capacity according to proof;
c/5

17 2. For monetary damages to compensate for the emotional distress suffered by Plaintiff
18 according to proof, but in an amount of no less than $1,000,000.
19 5. For punitive damages against Defendant RUBIO in the amount no less than
20 $1,000,000;

21 6. For statutory attomey's fees and costs pursuant to Gov't. Code § 12965(b) and Civil

22 Code § 1021.5, etseq., as well as under all applicable statutory provisions;

23 8. For prejudgment and post-judgment interest according to any applicable provision of law,

24 according to proof;

25 9. For costs of suit;

26 10. For injunctive relief, and for such other and further relief as the court deems proper.

27

28 DEMAND FOR JURY TRIAL

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C O M P L A I N T FOR D A M A G E S
 1
Plaintiff hereby demands trial by jury on all issues that are so triable in the Complaint.
2

4 Dated: September 25, 2018 LAW OFFICE OF CALVIN CHANG

5

By:
Calvin Chang
Attomeys for Plaintiff MICHAE ALLSTON
9

10

11

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•5 14
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g ov 2
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TCTNOT

17

18

19

20

21

22

23

24

25

26

27

28

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C O M P L A I N T FOR D A M A G E S
 iH DROP B
r;r.::)
0!L,r c.

'S!.:*-tn!GK CQUrif OF CALiFOi-.IuA

tOU!ilY OP" SACRAMENTO
 1 XAVIER BECERRA
Attomey General of Califomia
2 ANDREA R. AUSTIN
Supervising Deputy Attomey General
FlLED/EMDORSED"
3 LOREN E. DiEU
Deputy Attomey General NOV 2 0 2018
4 State Bar No. 179270
nOOIStreet, Suite 125 By.-. N. /evaad
5 P.O. Box 944255 uepuiy Clerk
Sacramento, CA 94244-2550
6 Telephone: (916)210-6090
Fax: (916) 324-5567
7 E-mail: Loren.Dieu@doj.ca.gov
Attomeys for Defendants Medical Board of
8 California and Department of Consumer Affairs
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA

10 COUNTY OF SACRAMENTO

11
12 MICHAE ALLSTON, an individual, Case No, 34-2018-00241418
13 Plaintiff, ANSWER TO COMPLAINT
14 v.
15 MEDICAL BOARD OF CALIFORNIA;
DEPARTMENT OF CONSUMER
16 AFFAIRS; RUBEN RUBIO, in his
individual and ofHcial capacities; and DOES
17 1 through 20, inclusive,
18 Defendants.
19
20 The MEDICAL BOARD of CALIFORNIA and DEPARTMENT OF CONSUMER
21 AFFAIRS (hereinafter "Deifendants") answer the unverified Complaint filed by plaintiff
22 MICHAE ALLSTON (hereinafter "Plaintiff) as follows:
23 GENERAL DENIAL
24 Defendants deny generally and specifically each and every allegation contained in
25 Plaintiffs Complaint and each and every cause of action set forth in it. Defendantsftirtherdeny
26 generally and specifically that Plaintiff has been or will be damaged in any form, or at all, by
27 reason of any act or omission on the part of Defendants or their agents, representatives and/or
28

ANSWER TO COMPLAINT (34-2018-00241418)

 1 employees. Defendants also deny that Plaintiff is entitled to any legal or equitable relief of any

2 kind on any grounds whatsoever.

3 ADDITIONAL DEFENSES
4 AS SEPARATE AND ADDITIONAL AFFIRMATIVE DEFENSES, Defendants herein

5 alleges:
6 ONE
7 Because the Complaint is pled in conclusory terms, Defendants cannot ftilly anticipate all •
8 defenses that may be applicable. Accordingly, Defendants reserve the right to assert additional
9 defenses, if and to the extent that such defenses are applicable.
10 TWO

11 The Complaint and each cause of action asserted in it are uncertain and fail to allege facts
12 sufficient to state a cause of action.
13 THREE
14 The Complaint and each cause of action asserted in it are barred, and the court lacks
15 jurisdiction over this matter, because Plaintiff failed to exhaust her administrative remedies,
16 including without limitation, under the Fair Employment and Housing Act and Califomia Family
17 Rights Act (including but not limited to Gov. Code, §§ 12960 and 12965), the Govemment

18 Claims Act (including but not limited to Gov. Code, §§ 905.2, 911.2, 945.4, and 950.2), and the
•19 Califomia Whistle Blower Protection Act (Gov. Code, § 8547, et. seq.).

20 FOUR

21 The Complaint is barred in that legitimate business purposes based on nondiscriminatory

22 reasons exist for Defendants' practices complained of by Plaintiff, which makes these practices

23 necessary to the efficient operation of Defendants' business and not a violafion of the Fair

24 Employment and Housing Act.

25 FIVE

26 Any alleged harms suffered by Plaintiff were caused without any knowledge or prior notice

27 to Defendants, and once known. Defendants took appropriate and immediate corrective action.

28 (Gov. Code, § 12940 subd. (j)-)

2
ANSWER TO COMPLAINT (34-2018-00241418)
 1 SIX

2 The Complaint fails to state a claim because Plaintiff suffered no tangible employment

3 action as a consequence of perceived wrongdoing by others, and: (1) Defendants exercised

4 reasonable care by promulgating, instituting, and disseminating throughout their workplace

5 workforce policies and procedures, offering training.courses, and other methods designed to
6 preclude and prevent any discrimination, harassment or retaliation and to report any such"'
7 conduct; and (2) Plaintiff, despite her knowledge and awareness of those policies and procedures
8 and other means and methods, unreasonably failed and refiised to take advantage of them, and she

9 also unreasonably failed and refused to otherwise avoid the harm, injuries, damages, and losses
10 for which she seeks relief; therefore, she is barred from any and all recovery, (Gov. Code, §§
11 815, 8152, 815.4, 818, 818.8, and 12940.)
12 SEVEN,
13 Plaintiff is not entitled to an award economic or noneconomic damages, back pay, or an
14 order of reinstatement because, absent such discrimination that Plaintiff complains of. Defendants
15 would have made the same decision(s) at the time it made its actual decision(s). (Code of Civ.
16 Proc, §1060; Gov. Code, §§ 12940, 12945.2 and 12965.)
17 EIGHT
18 At all times relevant. Plaintiff failed to mitigate her injury and damages, if any.

19 NINE
20 The Complaint and each cause of action asserted in it are barred by the Workers'

21 Compensafion Act and the Califomia Civil Service Act.

22 TEN ' '

23 Defendants is not vicariously, liable for any act or omission of any person by way of

24 respondeat superior or otherwise.

25 ELEVEN
26 Plaintiffs claims are barred by the doctrine of unclean hands and PlaintifFs own conduct

27 estops her from claiming the damages alleged in the Complaint.

28 ///
. 3
ANSWER TO COMPLAINT (34-2018-00241418)
 1 TWELVE

2 Plaintiff has waived the alleged claims and causes of action asserted in the Complaint.
3 THIRTEEN

4 In the event Plaintiff is entitled to any recovery, that recovery is reducible and must be

5 reduced by any amounts she received from any collateral source, and Defendants are entitled to

6 set off any such amounts against such recovery, and Defendants are also entitled to
7 reimbursement pursuant to the provisions of Govemment Code section 985.
8 FOURTEEN

9 Defendants acted at all times within the scope of discretion, in good faith, with due care,
10 and pursuant to applicable mles, regulations, and practices reasonably and in good faith believed
11 to be in accordance with the constitution and laws of the United States and Califomia, and
12 therefore are entitled to qualified immunity, and not liable for damages. Defendants' actions with
13 respect to Plaintiff were taken in the legitimate exercise of managerial discretion, based on
14 nondiscriminatory, nonretaliatory, and nonharassing reasons.
15 FIFTEEN
16 Defendants are immune from liability under the immunities contained in the Govemment
17 Claims Act, including, but not limited to, Govemment Code sections 815 and 815.2, 815.4, 818

18 and818.8, 820.2, 820.8, 821.6, and 822.2.

19 SIXTEEN

20 To the extent that Plaintiff is guilty of wrongdoing that is discovered subsequent to the

21 filing of this action, her recovery is either barred or reduced pursuant to the after-acquired

22 evidence doctrine.

23 • SEVENTEEN

24 To the extent that Plaintiff suffered mental or emotional distress or injury, as alleged in the

25 Complaint, it was the result of preexisting-physiological or psychological disorders or altemative

26 causes, and did not result from the acts alleged against Defendants.

27 ///

28 ///
4
ANSWER TO COMPLAINT (34-2018-00241418)
 1 EIGHTEEN

2 To the extent persons or entities other than Defendants proximately caused injury or

3 damage to Plaintiff, as alleged in the Complaint, Plaintiffs right to recovery from Defendants

4 should be correspondingly reduced.

5 NINETEEN .

6 , To the extent that the adverse employment action(s) were motivated by both retaliatory and

7 non-retaliatory reasons. Defendants are not liable for Plaintiffs alleged injuries and damages,

8 because legitimate reasons, standing alone, would have induced Defendants to make the same

9 decision(s).

10 TWENTY

II The Complaint and each cause of action are barred by the applicable limitations provisions,

12 including, but not limited to, Govemment Code sections 911.2, 945.6, 8547.8, 12960, 12965 and

13 19630, Code of Civil Procedure sections 335.1, 338(a), 342 and 343 and the Labor Code.

14 TWENTY-ONE

15 Plaintiffs Complaint and each claim attempted to be stated therein is barred in whole or in

16 part by judicial, equitable and/or collateral estoppel.

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AN SWER TO COMPLAINT (34-2018-00241418)

 1 WHEREFORE, Defendants prays for judgment as follows: )

2 1. That judgment be entered in favor of Defendants and against Plaintiff;

3 2. That the unverified Complaint be dismissed in its entirety with prejudice;
4 3. That Defendants be awarded reasonable attorneys' fees and costs, including expert
5 witness fees; and
6 4. That Defendants be awarded such other relief as the court deems just and proper.
7 Dated: November 20, 2018 Respectfiilly Submitted,
8 XAVIER BECERRA
Attomey General of Califomia
9 - . ANDREA R. AUSTIN
Supervising Deputy Attomey General
10
11
12
LORENE. DiEU
13 Deputy Attorney General
Attorneys for Defendants Medical Board of
14 California and Department of Consumer
Affairs
15
16 SA2018103272
13318434.docx
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ANSWER TO COMPLAINT (34-2018-00241418)

 DECLARATION OF SERVICE BY OVERNIGHT COURIER

Case Name: Michae Allston v. Medical Board of California, et al.

No.: 34-2018-00241418

I declare:

I am employed in the Office of the Attomey General, which is the office of a member of the
Califomia State Bar, at which member's direction this service is made. I am 18 years of age or
older and not a party to this matter; my business address is: 1300 I Street, Suite 125, P.O. Box
944255, Sacramento, CA 94244-2550.

On November 20. 2018.1 served the attached ANSWER TO COMPLAINT by placing atioie
copy thereof enclosed in a sealed envelope with the FedEx, addressed as follows:

Calvin Chang
Law Office of Calvin Chang
980 9th Street, 16th Floor
Sacramento, CA 95814

I declare under penalty of perjury under the laws of the State of Califomia the foregoing is tme
and correct and that this declaration was executed on November 20, 2018, at Sacramento,
Califomia.

Elizabeth Madden
/
Declarant ' Signature
SA20I8I03272
13339134.docx 13339134 DOCX
If' C ' t-' 1 i

COO

36
 1
ULED/ENDORSED"
CAROLEE G. KILDUFF, ESQ., SB No. 107232
2 MELISSA T. CURRIER, ESQ., SB No. 318805 JAN 2 4 2019
ANGELO, KILDAY & KILDUFF, LLP
3 Attomeys at Law By;
601 University Avenue, Suite 150
4
Sacramento, CA 95825 ^
5 Telephone: (916)564-6100
Telecopier: (916)564-6263
6
Attomeys for Defendant RUBEN RUBIO
7 PUBLIC ENTITY, FILING FEES WAIVED PURSUANT TO GOV'T CODE §6103
8
9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF SACRAMENTO
11
MICHAE ALLSTON, an individual CaseNo.: 34-2018-00241418
12
Plaintiff,
13 RUBEN RUBIO'S ANSWER TO
14 vs. COMPLAINT

15 MEDICAL BOARD OF CALIFORNIA;

DEPARTMENT OF CONSUMER AFFAIRS;
16 RUBEN RUBIO, in his individual and official
17 capacities, and DOES 1 through 20, inclusive.
18 Defendants.
19
20
21 ANSWER
22 Defendant RUBEN RUBIO hereby answers Plaintiff MICHAE ALLSTON's Complaint
.23 as follows:
24 Defendant denies each and every, all £ind singular, generally and specifically, the
25 allegations contained in plaintiffs complaint; denying generally and specifically that plaintiffhas
26 been damaged in the sum or sums alleged, or in any sum whatsoever.
27 /// '

28 ///

-1-
RUBEN RUBIO'S ANSWER TO COMPLAINT
 1 AFFIRMATIVE DEFENSES
2 AS AND FOR FURTHER, WITHOUT CONCEDING DEFENDANT HAS THE
3 BURDEN OF PROOF, DEFENDANT ALLEGES THE FOLLOWING SEPARATE AND
4 DISTINCT DEFENSES:
5 I

6 That he cannot fiilly anticipate all affirmative defenses that may be applicable to this action
7 based upon the conclusionary terms^used in plaintiffs complaint. Accordingly, defendant
^ expressly reserves the right to assert additional affirmative defenses and to the extent that such
9 affirmative defenses become applicable;
10 That the plaintiff willingly, voluntarily, and knowingly assumed the risks and hazards
11 involved in the activities referred to in the complaint;
12 II
13 That the plaintiff consented to complained of acts or omissions, if any, barring plaintiff
14 from relief as prayed for in her complaint;
15 IIL
16
That the plaintiff was herself careless and negligent in and about the matter described in
17
said complaint in that such negligence and carelessness on the part of the plaintiff! proximately
18
caused the damages she seeks herein, if any there are.
19
IV.
20
2J That if defendant is adjudged, decreed, or otherwise determined to be liable to plaintiff,
22 then and in that event, defendaiit will be entitled to apportion the degree of his fault or
23 responsibility with and between the degree of fault and responsibility attributable to the plaintiff,
24 or to any other defendants or cross-defendants named herein or yet to be named. The amount of
25 damages attributable to this answering defendant is to be abated, reduced, or eliminated, to the
2g extent that the plaintiffs own negligence, or the negligence of any other defendants, contributed
27 to the plaintiffs claimed damages, i f any there were. This apportionment of damages is to be
2g administered in accordance with the principles of equity and pursuant to the doctrine of

-2- .
RUBEN RUBIO'S ANSWER TO COMPLAINT
 1 comparative negligence and pursuant to Civil Code section 1431.2;
2 v.,"
3 That the complaint, and each alleged cause of action therein, failed to allege facts sufficient
4 to constitute a cause of action against this answering defendant;
5
6
That on information and belief, the plaintiffhas failed to mitigate her damages, if any there
7
are;
8
VII.
9
Defendant claims and pleads the immunities fi'om liability for any and all injuries and
10
damages alleged in the complaint on file herein, the defenses and allrightsgranted to him by virtue
11
of the provision of Califomia Govemment Code sections 810-996.6, inclusive, and Califomia
12
Govemment Code sections 12940 e^. 5e^;
13
vin.
14
15 That plaintiffs claims are barred by the statutes of limitation by Govemment Code sections

16 12960 and 12965, and 42 U.S.C. 2000 e^. 5e^;

17 IX.

18
That defendant's conduct was privileged under Califomia Civil Code §47 or
19
otherwise;
20
• X.
21
That plaintiffs exclusive remedies are provided for by Califomia Labor Code section 3600
22
23 et seq;
XI.
24
25 That plaintiff has failed to exhaust her administrative remedies as to some or all asserted
26 claims under Govemment Code sections 12960 and 12965, and 42 U.S.C. 2000 et seq;
27 III
28 III

-3-
RUBEN RUBIO'S ANSWER TO COMPLAINT
 1 XIL
2 That plaintiffs request for punitive damages violates defendant'srightto protection fi-om
3 excessive fines provided in the Eighth Amendment of the United States Constitution and also
4 provided by the Constitution of the State of California, and violates defendant'srightto substantive
5 due process as provided by the Fifth and Fourteenth Amendments ofthe United States Constitution
6 and the Constitution of the State of California, and therefore fails to state a cause of action
7 supporting punitive or exemplary damages.
8 XIII.
9 That at all times alleged in the complaint, defendant's treatment of plaintiff was reasonable,
10 fair, privileged, without malice, in good faith, in the exercise of business judgment, and for
II legitimate, non-discriminatory reasons;
12 XIV.
13 That plaintiffs claims are barred because defendant exercised reasonable care to prevent
14 and correct any behavior, and the plaintiff unreasonably failed to take advantage of preventive or
15 corrective opportunities, including but not limited to, using the complaint procedure provided by
16 her employer that would otherwise have prevented some or all of plaintiffs alleged harm;
17 XV.
18 That the complaint is barred in whole or in part by the doctrine of after-acquired evidence;
19
20
21 Wherefore, answering Defendant RUBEN RUBIO prays for the following relief:
22 1. That Plaintiff MICHAE ALLSTON take nothing by way of her Complaint;
23 2. That Plaintiffs Complaint be dismissed in its entirety with prejudice in favor of
24
Defendant and against Plaintiff MICHAE ALLSTON;
25
III
26
III ' 1
27
' ///
28
///

RUBEN RUBIO'S ANSWER TO COMPLAINT

 1 3. That Defendant RUBEN RUBIO be awarded costs of suit incurred in this action;
2 4. That Defendant RUBEN RUBIO be awarded attorneys' fees;
3 For such other and further relief as the Court may deem just and proper.
4
5
6 Dated: January 18,2019 ANGELO, KILDAY & KILDUFF, LLP
7
8 By:_
CAROLEE G. KILI
9 MELISSA T. CURRIER
Attomeys for Defendant RUBEN RUBIO
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RUBEN RUBIO'S ANSWER TO COMPLAINT

 1 CASENAME: , Aliston V. Medical Board of California, et al.
COURT: ^ Sacramento County Superior Court
2 CASENO. 34-2018-00241418
PROOF OF SERVICE
. 3
I am a citizen of the United States, employed in the County of Sacramento, State of
4 Califomia. My business address is 601 University Avenue, Suite 150, Sacramento, Califomia
95825. I am over the age of 18 years and not a party to the above-entitled action.
5
On January 18, 2019, I served the parties in this action listed below the following
6 document(s) described as: RUBEN RUBIO'S ANSWER TO COMPLAINT
7
The above-named document(s) were served by the following means (specify):
8
o 9 ^ MAIL -1 am readily familiar with Angelo, Kilday &. Kilduffs practice for collection and
processing pf correspondence for mailing with the United States Postal Service. Pursuant to said
10 practice, each document is placed in an envelope, the envelope is sealed, the appropriate postage
is placed thereon and the sealed envelope is placed in the office mail receptacle. Each day's mail
11 is collected and deposited in a U.S. mailbox at or before the close of each day's business. (Code
Civ. Proc. section 1013a(3)) or Fed.R.Civ.P. 5(a) and 4.1; USDC (E.D. CA) L.R. 5-135(a).)
12
13 SERVICE LIST

14
LAW OFFICE OF CALVIN CHANG Loren E. Dieu
15 CALVIN CHANG Office of Attomey General
16 980 9*^ St., 16* Floor P. O. Box 944255
Sacramento, CA 95814 Sacramento, CA 94244-2550
17
18
19 I declare imder penalty of peijury under the laws ofthe State of Califomia that the above
is tme and correct.
20
Executed on January 18, 2019 at Sacramento, Cal
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RUBEN RUBIO'S ANSWER TO COMPLAINT