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MELANIE MORTON SB# 1891

1 PROFESSOR LEWIS, SECTION C, LLP


400 Capitol Mall, Suite 2200
2 Sacramento, CA 95814
(916) 558-7000
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Attorneys for Plaintiff
4 MARGARET POLISI
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SUPERIOR COURT OF CALIFORNIA
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IN AND FOR THE COUNTY OF NITA
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8 ) CASE NO. 01AS12345


MARGARET POLISI, )
9 ) PLAINTIFF’S MEMORANDUM OF
Plaintiff, ) POINTS AND AUTHORITIES IN
10 ) OPPOSITION TO DEMURRER
vs. )
11 SIMON CLARK, an individual; ) Date: February 8, 2010
PARKER & GOULD, LLP, a California ) Time: 3:45 pm
12 ) Dept. E
limited liability partnership; and ) Judge: Steven Lewis
13 DOES 1 through 100 )
) Complaint Filed: January 2, 2010
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Defendants )
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I. INTRODUCTION
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Plaintiff Margaret Polisi (“Polisi”) respectfully submits her Opposition to the
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Demurrer filed by Defendant Simon Clark (“Clark”).
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This action is being brought by Margaret Polisi to recover back pay, future pay,
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lost income, lost employee benefits, damages for physical and emotional pain and
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suffering, punitive damages to punish Defendants, Simon Clark and Parker & Gould for
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their wrongful conduct, and reasonable attorney fees and costs of the suit. The evidence
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that will be presented at trial will show that Ms. Polisi was subject to sexual harassment
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at the hands of Clark, and was discharged from her position at Parker and Gould in
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retaliation. Plaintiff, Polisi, has alleged a valid cause of action for discrimination,
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OPPOSITION TO DEMURRER
1 wrongful termination and sexual harassment against Defendant Clark as stated below.
2 Defendant’s demurrer is without merit and should not be granted.
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4 II. STATEMENT OF FACTS


5 Ms. Polisi was hired as an associate at Parker & Gould in the City of Nita in May
6 1994. (Compl. ¶ 7.) From 1994 until September 2001, Ms. Polisi worked as an
7 associate attorney with numerous litigation partners includuding Defendant Clark. (Id.
8 at ¶ 8) Around September 2001, Ms. Polisi began working exclusively with Defendant
9 Clark. (Id. at ¶ 9) Several months later, around December 2001, Ms. Polisi and Clark
10 began a personal relationship that later ended on or around March 2002 when Clark
11 refused to leave his wife for Ms. Polisi. (Id. at ¶ ¶ 9,10.) Clark then threatened Ms.
12 Polisi that she would “regret this,” she was “just like the other ones,” and “you’re all
13 the same.” ((Id. at ¶ 10.)

14 In May of 2002, Ms. Polisi, along with three other applicants, applied to be

15 considered for partnership but one male withdrew his name. (Id. at ¶ 14) Ms. Polisi

16 was rejected for partnership while the male candidates with similar qualifications as

17 Ms. Polisi were approved. (Ibid.) Clark, in his capacity as Chairman of the Litigation

18 Partnership Committee, out of spite and revenge, recommended that Ms. Polisi’s

19 application for partnership be denied. (Ibid.) Ms. Polisi did not make partner because

20 Defendant acted in “retaliat[ion] against Ms. Polisi as a result of her refusal to continue

21 to have sexual relations with him.” (Id. at ¶18) Ms. Polisi was not rejected because of

22 her qualifications, but was instead the victim of Clark’s spiteful retaliation.

23 Ms. Polisi was also not offered a position as a litigation partner and subsequently

24 lost her job at Parker & Gould because of her gender. (Id. at ¶ 20.) This denial of

25 partnership was based on gender. A valid cause of action lies not just because Ms.

26 Polisi refused to continue a relationship with Clark, as she was also discriminated

27 against by Parker & Gould because of gender as well.

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OPPOSITION TO DEMURRER
1 III. ARGUMENT
2 A. Standard on Demurrer
A demurrer to a complaint will lie if the “pleading does not state facts sufficient
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4 to constitute a cause of action.” (Code of Civ. Proc. § 430.10(e).) A demurrer can only

5 be used to challenge a defect that appears on the face of the pleading. (Donabedian v.
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Mercury Insurance (2004) 116 Cal.App.4th 968, 994; Blank v. Kirwan (1985 39 Cal.3d
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311, 318.) In a demurrer, the parties admit all material facts that are properly alleged in
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the complaint and are to be treated as true by the court in their ruling on the demurrer.

10 (Gruenberg v. Aetna Ins. Co. (1973) 9 Cal.3d 566, 572.)


11 Complaints at the pleading stage are to be construed liberally by the court and
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“with a view of substantial justice.” (Code of Civ. Proc. § 452; Also see Stevens v. Sup.
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Ct (API Auto Insurance Services) (1991) 75 Cal.App.4th 594, 601.) Any valid cause of
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15 action that lies will overcome a demurrer even if the plaintiff is mistaken as to the

16 nature or legal theory so long as the essential facts of a valid cause of action are alleged
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in the complaint. (Quelimane Co. Inc. v. Stewart Title Guarantee Co. (1998) 19 Cal.4th
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26, 38-39.) A demurrer cannot be sustained unless the complaint fails to state a cause of
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action on any theory. (Emphasis added, Brousseau v. Jarrett (1977) 73 Cal.App.3d
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21 864.)

22 The issue here is that Defendant alleges that there is no claim against him for
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discrimination because he is a “supervisor” and therefore immune from liability and
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that his actions in relation towards Ms. Polisi did not arise to the level of harassment.
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(Demurrer ¶ 4:10-12.) If all facts of the pleading are taken as true, Ms. Polisi has a
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27 valid cause of action against Clark. Ms. Polisi has stated sufficient facts to show a

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OPPOSITION TO DEMURRER
valid cause of action on a valid legal theory based on Clark’s actions towards her as
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2 plead in the complaint. Even if Defendant is able to successfully argue that his actions

3 somehow make him immune from a cause of action for discrimination under the
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California Department of Fair Employment and Housing Act as alleged, Ms. Polisi is
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entitled to relief from Defendant as the complaint shows on its face a valid right to
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relief. (See Gressley v. Williams (1961) 193 Cal.2d 636, 639.) Demurrers only require

8 that on the face of the complaint there are sufficient facts pled to show a cause of action
9 exists, and Ms. Polisi has done so in her complaint.
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B.California Fair Employment and Housing Act
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12 California’s Fair Employment and Housing Act (FEHA) is codified in

13 Government Code § 12940 and bars employers from discriminating based on sex in

14 employment decisions, including hiring, terminating, promoting and other terms of

15 employment. An employer may also be liable for sexual harassment based on quid pro

16 quo sexual harassment or hostile work environment sexual harassment. (Cal. Govt.

17 Code § 12940(j).)

18 1. Defendant is liable for discrimination and wrongful termination.

19 a. FEHA

20 In Defendant’s demurrer, he argues that he cannot be sued under FEHA because

21 he was Ms. Polisi’s supervisor and this grants him immunity for his actions. It is true

22 that California has held that supervisors are not personally liable for personnel

23 management decisions under the FEHA. (Janken v. GM Hughes Electronics

24 (Cal.App.2d 1996) 46 Cal.App.4th 55, 66.) FEHA does allow employees that are not

25 supervisors to be “personally liable for any harassment prohibited [by the FEHA] that

26 is perpetrated by the employee” (Cal. Govt. Code § 12940(j)(3).)

27 Clark was Ms. Polisi’s superior as he was a partner at the firm as he was a partner

28 and she was an associate, but Defendant was not Ms. Polisi’s supervisor and instead

OPPOSITION TO DEMURRER
1 should be considered her employer. Several cases have held that partners in a law firm
2 are not supervisors and are instead considered employers for discrimination purposes.
3 In Ruich v. Ruff, Weidenaar & Reidy (ND Ill 1993) 837 F.Supp. 881, 884 the court
4 found that a partner in a law firm was found to be plaintiff’s employer and not just a
5 supervisor for the purposes of sexual harassment. The alleged harasser was a partner in
6 the firm and had decision making capabilities like a supervisor but was determined to
7 be a member of the partnership that employed plaintiff and therefore an employer
8 liable under Title VII. (Ibid.) Plaintiff was allowed to sue the supervising partner in his
9 personal capacity as her employer. 1
10 Defendant and Ms. Polisi only worked together on one case where Defendant
11 supervised her but was not Plaintiff’s direct supervisor in any capacity at the firm.
12 Defendant is a senior partner, and as a member of the partnership that employed Ms.
13 Polisi, is to be considered an employer for purposes of this suit. Defendant as a result

14 should not be considered Ms. Polisi’s supervisor for purposes of this complaint, but

15 instead personally liable as her employer for discrimination and wrongful termination.

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b. Title VII
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Even if the court finds that Defendant was Plaintiff’s supervisor and therefore is
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not personally liable under FEHA for the discrimination and wrongful termination,
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Plaintiff still has a cause of action under Title VII of the Civil Rights Act. Title VII
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allows individuals to maintain discrimination and wrongful termination suits against
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supervisors. In Jedusa v. Cancer Treatment Centers of Am. (N.D. Ill. 1994) 868
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F.Supp. 1006 the court found that supervisors could be held individually liable and
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went on to find that if Congress intended to immunize supervisors they would have
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25 1
This was a Title VII case, but FEHA defines employer in similar language as Title VII and provides for similar

26 remedies. See County of Alameda v. FEHC (Ct. App. 1984) 200 Cal.Rptr. 381. Title VII cases also have been used to

27 provide interpretation and guidance to claims brought under FEHA as well. See Mackay v. Cal. Dept. of Corrections

28 (2002) 105 Cal.App4th 640.

OPPOSITION TO DEMURRER
1 explicitly included it in the 1991 amendment to Title VII. (Id. at 1016.) In a case
2 similar to this, in Williams v. Civiletti (D DC 1980) 487 F.Supp. 1387, plaintiff alleged
3 she was wrongfully terminated because she denied her supervisors sexual advances.
4 The court stated that:
“[i]f a supervisor chooses to accept the sexual favors offered by a
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subordinate employee and such a relationship sours and as a result the
6 working relationship deteriorates, no sanctions against the employee can
be taken without a candid disclosure of the nature of the problem to the
7 actual authority making the decision.”(emphasis added, Id. at 1389.)
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9 The Court ultimately found that submission to the sexual advances of defendant
10 supervisor was a term and condition of plaintiff’s employment in violation of Title VII.
11 (Ibid.)
12 There has been a split amongst federal districts on whether discrimination based
13 on sex is actionable against supervisors under Title VII of the Civil Rights Act of
14 1964, 42 U.S.C. § 2000e-16(a). In Meritor Savings Bank v. Vinson (1986) 477 US 57,
15 73 the U.S. Supreme Court agreed that Congress’ decision to define 'employer' to
16 include any 'agent' of an employer ... evinces an intent to place some limits on the acts
17 of employees for which employers under Title VII are held responsible. The Court
18 went on to hold that, "as to employer liability, we conclude the Court of Appeals was
19 wrong to entirely disregard agency principles and impose absolute liability on
20 employers for the acts of their supervisors." (Id. at 73)The Ninth Circuit's strict
21 reliance on respondeat superior principles to prevent individual supervisor liability
22 was the type of reasoning the Supreme Court ultimately criticized in Meritor. The
23 court made an important point in Vakharia v. Swedish Convent(N.D. Ill 1993) 824

24 F.Supp. 769, 785 when they found personal liability of supervisors was necessary to

25 serve two purposes, to compensate victims and to prevent future discrimination. It

26 would not be just for supervisors to be allowed to get away with discrimination and

27 wrongful termination without personal liability.

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OPPOSITION TO DEMURRER
1 Title VII defines employer broadly to include “any party who significantly affects
2 access of any individual to employment opportunities regardless of whether that
3 person may technically be described as an ‘employer’ of an aggrieved individual.”
4 (Carparts Distribution Ctr. Inc. v. Automotive Wholesaler’s Assn. of New England,
5 Inc. (1st Cir. 1994) 37 F.3d 12, 17.) Under Title VII, Defendant would not be immune
6 from liability because he fits the definition of an employer as he had the ability to
7 significantly affect employees of Parker & Gould’s access to employment
8 opportunities as the Chairman of the Litigation Partnership Committee and a senior
9 partner.
10 Clark accepts that he has wronged Ms. Polisi and retaliated against her. To allow
11 this to be overlooked because some district courts have found supervisors not liable
12 under Title VII would defeat the purpose of the Act as stated in Vakharia. Regardless
13 of whether Clark is a supervisor, an employer or an employee, he has purposefully

14 discriminated against Ms. Polisi and was responsible for her wrongful termination and

15 he should not be shielded by the Civil Rights Act from this wrong.

16 Even if Defendant is not liable for discrimination and harassment under FEHA,

17 Plaintiff has pled sufficient facts to allege a valid cause of action under Title VII for

18 discrimination and sexual harassment against Defendant.

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20 2. Defendant’s actions were sufficient to constitute harassment under

21 FEHA.

22 a. Quid Pro Quo Harassment

23 California Code of Regulations, Title 2, §7287.6, subdivision (b)(1) provides that

24 harassment includes but is not limited to: verbal harassment, physical harassment,

25 visual harassment, sexual favors, and unwanted sexual advances. Harassment consists

26 of conduct outside the scope of necessary job performance, conduct presumably

27 engaged in for personal gratification, because of “meanness or bigotry,” or “for other

28 personal motives,” harassment is not conduct necessary for management or

OPPOSITION TO DEMURRER
1 performance of a supervisory employee’s job. (Janken v. GM Hughes Electronics
2 (Cal. App. 2d Dist. 1996) 46 Cal. App. 4th 55, 63.)
3 Defendant correctly identifies that animosity resulting from the termination of a
4 consensual sexual relationship cannot be the underlying foundation of a harassment
5 claim and “a desire to continue a prior consensual relationship is not, on its own, an
6 impermissible basis for personnel action under Title VII.” (Succar v. Dade County
7 School Board (SD FL 1999)60 F.Supp.2d 1309, 1316.) When a consensual sexual
8 relationship has gone sour, it is not sexual harassment unless it is “linked in some way
9 to other or further unwanted sexual advances.” (Campbell v. Masten (D. Md. 1997)
10 955 F.Supp. 526, 530.)
11 It is true Ms. Polisi did have a consensual sexual relationship with Defendant, but
12 the sexual harassment did not begin until that relationship ended.. Defendant continued
13 to try to have a relationship with Ms. Polisi after she ended the relationship, and when

14 she did not relent, Defendant retaliated. Ms. Polisi does not allege only that she had to

15 continue her relationship with Defendant in order to keep her job, but it was just one of

16 the steps she would have to take in order to become partner. Plaintiff’s submission to

17 Defendant, Simon Clark, became a term and condition of her promotion and continued

18 employment with Parker & Gould. This along with continued rejections eventually led

19 to Plaintiff’s dismissal and as a result was harassment. (Williams v. Civiletti (D.C. Cir.

20 1980) 487 F.Supp. 1387, 1388.)

21 b. Hostile Work Environment Harassment

22 Defendant’s actions arose to the level of sexual harassment and Plaintiff has

23 sufficiently pled a valid cause of action. Defendant never ripped Plaintiff’s clothing

24 nor did he leave threatening notes on her car but he did sexually harass Plaintiff

25 because of her gender. This type of psychological trauma is not necessary to a finding

26 of a hostile work environment. Instead the environment is and could reasonably be

27 perceived as hostile or abusive. (Harris v. Forklift (1993) 510 US 17, 21.)

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OPPOSITION TO DEMURRER
1 Defendant’s hostile statements were more than just “you’ll regret this, I promise
2 you,” when Plaintiff ended their relationship. Defendant also allegedly said that
3 Plaintiff would regret it “like all the other ones did,” referring to the many women
4 Defendant carried on relationships with that were subsequently terminated from Parker
5 & Gould. (Compl. ¶ 11.) Defendant also said “you’re all the same,” implying Plaintiff
6 was acting like all women and making a derogatory remark towards her gender. These
7 types of comments along with Defendants interference with Plaintiff’s ability to
8 perform her work are sufficient to constitute sexual harassment. (see Meritor Savings
9 Bank,supra, at 65; Del Mar Avionics (1985) No. 85-19, FEHC Presidential Decision,
10 p. 18.)
11 Plaintiff will have an opportunity to do discovery and uncover more facts to
12 support her allegations that Defendant’s actions arose to the egregious level of sexual
13 harassment in order to create an unsuitable and hostile work environment. At this stage

14 Plaintiff has successfully pled sufficient facts to show a valid claim for hostile work

15 place harassment.

16 c. Public Policy

17 Defendant argues that if Ms. Polisi does not have a claim under FEHA, then Ms.

18 Polisi has no claim against Defendant on public policy grounds. This argument is

19 counter to public policy. Ms. Polisi can plead a claim under FEHA, Title VII and

20 public policy grounds for gender discrimination in California. The California

21 Constitution prevents discrimination based on gender and thus any dismissal based on

22 Plaintiff’s gender would be counter to public policy even it was found to not satisfy

23 the requirements of a cause of action under FEHA. (Cal. Const. Article I, Section 8;

24 Rojo v. Kliger (1990) 52 Cal.3d 65, 89-91.)

25 Ms. Polisi was denied a promotion and asked to leave her job because of her sex.

26 This is in direct conflict with the public policy to protect and guard against the right

27 for all individuals to hold employment free from discrimination. Defendant admits all

28 allegations of retaliation against Ms. Polisi in his demurrer and should be held liable.

OPPOSITION TO DEMURRER
1 To not do so would be counter to public policy. It would allow Defendant to get away
2 with discrimination, wrongful termination and harassment of Plaintiff simply because
3 he considers himself Plaintiff’s supervisor and outside the bounds of FEHA.
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5 IV. CONCLUSION
6 The claims set forth in Plaintiff Polisi’s Complaint against Defendant Clark have
7 been sufficiently pled to survive a demurrer. A valid cause of action exists against
8 Defendant based on the facts alleged in the complaint. Accordingly, for all the reasons
9 set forth above, the Court should overrule Defendant Clark’s Demurrer and allow
10 Plaintiff’s claim to stand.
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Dated: February 8, 2010 #1891
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_______________________
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Melanie Morton
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Prof. Steven Lewis,
Section C
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Attorneys for Plaintiff
MARGARET POLISI
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OPPOSITION TO DEMURRER