Deadline

1 TABLE OF CONTENTS

2 I. INTRODUCTION ...... 1

3 II. ARGUMENT ...... 3

4 A. Legal Standard on Demurrer ...... 3 5 B. California’s Judicial Policy Favors Class Actions Surviving Demurrer...... 3 6 C. Plaintiffs Have Adequately Alleged Claims Under California’s Equal Pay Act...... 6 7 1. Plaintiffs’ Allegations Establish a Reasonable Possibility That A Community of 8 Interest Exists Among Class Members...... 7

9 a) Plaintiffs Sufficiently Allege that Common Issues of Fact and Law Predominate..... 8 b) Plaintiffs Sufficiently Allege That Their Claims Are Typical...... 12 10 2. Defenses Are Not a Proper Basis For Demurrer...... 13 11 D. Plaintiffs’ Waiting Time Penalties Claim Is Properly Pled...... 14 12 E. Plaintiffs’ PAGA Representative Claims for Violations of the California Equal Pay 13 Act are Well-Pled...... 14 14 III. CONCLUSION ...... 15 15 16 17 18 19 20 Deadline 21 22 23 24 25 26 27 28

-i- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER

1 TABLE OF AUTHORITIES 2 STATE CASES Arce v. Kaiser Found. Health Plan, Inc. 3 181 Cal. App. 4th 471 (2010)...... 5 4 Arias v. Super. Ct. 46 Cal. 4th 969 (2009) ...... 14 5 Aubry v. Tri-City Hosp. Dist. 2 Cal. 4th 962 (1992) ...... 3 6 Barnhill v. Robert Saunders & Co. 7 125 Cal. App. 3d 1 (1981) ...... 14 Bass v. Great W. Sav. & Loan Ass’n. 8 58 Cal. App. 3d 770 (1976) ...... 7 9 Bauman v. Islay Invs. 45 Cal. App. 3d 797 (1975) ...... 12 10 Beckstead v. Super. Ct. 21 Cal. App. 3d 780 (1971) ...... 3, 4 11 Blank v. Kirwan 12 39 Cal. 3d 311 (1985) ...... 3 Brinker Rest. Corp. v. Super. Ct. 13 53 Cal. 4th 1004 (2012) ...... 10 14 Brown v. Regents of Univ. of Cal. 151 Cal. App. 3d 982 (1984) ...... 5 15 C.A. v. William S. Hart Union High School Dist. 53 Cal. 4th 861 (2012) ...... 3 16 Caliber Bodyworks, Inc. v. Super. Ct. 17 134 Cal. App 4th 365 (2005)...... 14 Canon U.S.A., Inc. v. Super. Ct. 18 68 Cal. App. 4th 1 (1998)...... 5 19 Caro v. Procter & Gamble Co. 18 Cal. App. 4th 644 (1993)...... 12 20 Castaneda v. Ensign Grp., Inc. 229 Cal. App. 4th Deadline1015 (2014)...... 1 21 Comm. On Children’s Television, Inc. v. Gen. Foods Corp. 22 35 Cal. 3d 197 (1983) ...... 3 Cottle v. Super. Ct. 23 3 Cal. App. 4th 1367 (1992)...... 2 24 Cruz v. Sun World Int’l, LLC 243 Cal. App. 4th 367 (2015)...... 11 25 Dailey v. Sears, Roebuck & Co. 214 Cal. App. 4th 974 (2013)...... 15 26 Duran v. U.S. Bank Nat’l Ass’n 27 59 Cal. 4th 1 (2014) ...... 13 Fireside Bank v. Super. Ct. 28 40 Cal. 4th 1069 (2007) ...... 2

-ii- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER

1 Granberry v. Islay Invs. 9 Cal. 4th 738 (1995) ...... 13 2 Green v. Par Pools Inc. 3 111 Cal. App. 4th 620 (2003)...... 6, 7, 13 Gutierrez v. Cal. Commerce Club, Inc. 4 187 Cal. App. 4th 969 (2010)...... 4, 15 Hall v. Cty. of Los Angeles 5 148 Cal. App. 4th 318 (2007)...... 6 6 Home Depot U.S.A., Inc. v. Super. Ct. 191 Cal. App. 4th 210 (2010)...... 14 7 Koval v. Pacific Bell Tel. Co. 8 232 Cal. App. 4th 1050 (2014)...... 11 Linder v. Thrifty Oil Co. 9 23 Cal. 4th 429 (2000) ...... 2, 7 Martinez v. Joe’s Crab Shack Holdings 10 231 Cal. App. 4th 362 (2014)...... 12 11 McCleery v. Allstate Ins. Co. 37 Cal. App. 5th 434 (2019)...... 13 12 Newell v. State Farm Gen. Ins. Co. 13 118 Cal. App. 4th 1094 (2004)...... 5 Prince v. CLS Transp., Inc. 14 118 Cal. App. 4th 1320 (2004)...... 4, 12 Road Sprinkler Fitters Local Union No. 669 v. G&G Fire Sprinklers, Inc. 15 102 Cal. App. 4th 765 (2002)...... 14 16 Sav-on Drug Stores, Inc. v. Super. Ct. 34 Cal. 4th 319 (2004) ...... 2 17 Schermer v. Tatum 18 245 Cal. App. 4th 912 (2016)...... 5 Sheehan v. San Francisco 49ers, Ltd. 19 45 Cal. 4th 992 (2009) ...... 5 Soderstedt v. CBIZ S. Cal., LLC 20 197 Cal. App. 4th Deadline133 (2011)...... 11 21 StorMedia Inc. v. Super. Ct. 20 Cal. App. 4th 449 (1999)...... 5, 13 22 Tarkington v. Cal. Unemployment Ins. Appeals Bd. 23 172 Cal. App. 4th 1494 (2009)...... 4 Tucker v. Pacific Bell Mobile Servs. 24 208 Cal. App. 4th 201 (2012)...... 5 Vasquez v. Super. Ct. 25 4 Cal. 3d 800 (1971) ...... 2, 4, 7, 15 26 Wershba v. Apple Comput., Inc. 91 Cal. App. 4th 224 (2001)...... 2 27 Zelig v. Cty. of Los Angeles 28 27 Cal. 4th 1112 (2002) ...... 3

-iii- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER

1 FEDERAL CASES Ahad v. Board of Trs. of S. Ill. Univ. and SIU Physicians & Surgeons, Inc. 2 No. 15-cv-3308, 2018 WL 4350180 (C.D. Ill. Sep. 12, 2018) ...... 10 3 Ahad v. Board of Trs. of S. Ill. Univ. and SIU Physicians & Surgeons, Inc. No. 15-cv-3308, 2019 WL 1433753 (C.D. Ill. Mar. 29, 2019) ...... 10 4 Amiri v. Cox Comms. Cal., LLC 5 272 F. Supp. 3d 1187 (C.D. Cal. 2017)...... 15 Ashcroft v. Iqbal 6 556 U.S. 662 (2009) ...... 15 Banawis-Olila v. World Courier Ground, Inc. 7 No. 16-CV-0982-PJH, 2016 WL 2957131 (N.D. Cal. May 23, 2016) ...... 1 8 Barrett v. Forest Labs., Inc. 39 F. Supp. 3d 407 (S.D.N.Y. 2014) ...... 5 9 Bertroche v. Mercy Physician Assoc., Inc. 10 No. 18-CV-59-CJW-KEM, 2019 WL 4307127 (N.D. Iowa Sep. 11, 2019) ...... 11 Butler v. Home Depot, Inc. 11 Nos. C-94-4335 SI, C-95-2182 SI, 1997 WL 605754 (N.D. Cal. Aug. 29, 1997) ...... 8 12 Calibuso v. Bank of Am. Corp. 13 893 F. Supp. 2d 374 (E.D.N.Y. 2012) ...... 5 Cruz v. Dollar Tree Stores, Inc. 14 Nos. 07-2050 SC, 07-4012 SC, 2011 WL 2682967 (N.D. Cal. Jul. 8, 2011) ...... 11 Davies v. Broadcom Corp. 15 130 F. Supp. 3d 1343 (C.D. Cal. 2015)...... 9 16 Jimenez v. Domino’s Pizza, Inc. 238 F.R.D. 241 (C.D. Cal. 2006) ...... 11 17 Kassman v. KPMG LLP 18 No. 11 Civ. 3743, 2018 WL 6264835 (S.D.N.Y. Nov. 30, 2018) ...... 10 Litty v. Merrill Lynch & Co., Inc. 19 No. CV 14-0425 PA (PJWx), 2014 WL 5904904 (C.D. Cal. Nov. 10, 2014) ...... 15 Negley v. Judicial Council of Cal. 20 458 F. App’x. 682Deadline (9th Cir. 2011) ...... 6 21 Ortiz v. CVS Caremark Corp. No. C-12-05859, 2014 WL 1117614 (N.D. Cal. Mar. 19, 2014) ...... 15 22 Ovieda v. Sodexo Operations, LLC 23 No. CV 12-1750-GHK (SSx), 2012 WL 1627237 (C.D. Cal. May 7, 2012) ...... 15 Spencer v. Virginia State Univ. 24 919 F.3d 199 (4th Cir. 2019) ...... 6 Staton v. Boeing Co. 25 327 F.3d 938 (9th Cir. 2003) ...... 13 26 Wagner v. Taylor 836 F.2d 578 (D.C. Cir. 1987) ...... 13 27 Wal-Mart Stores, Inc. v. Dukes 28 564 U.S. 338 (2011) ...... 9, 10

-iv- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER

1 STATE STATUTES 2 Cal. Code Civ. Proc. § 382 ...... 7 Cal. Code Civ. Proc. § 452 ...... 3, 6 3 Cal. Code Regs. tit. 8, § 13520 ...... 14 4 Cal. Lab. Code § 1197.5(a) ...... 6, 7, 13 Equal Pay Act of 1949 5 Lab. Code §§ 1197.5 et seq. (amended 2015) ...... passim 6 Private Attorneys General Act of 2004 Cal. Lab. Code §§ 2698-2699.5 (amended 2016) ...... 1, 6, 14, 15 7 OTHER AUTHORITIES 8 CAL. DESKBOOK ON COMPLEX CIVIL LITIG. MGMT. (Vol. 1, Release 18 2019) ...... 2 Compensation and Salaries―Disclosure―Rules and Regulations 9 2015 Cal. Legis. Serv. Ch. 546 (S.B. 358) (West) ...... 1, 11 10

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-v- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER

1 I. INTRODUCTION 2 In 2015, the California Legislature unanimously voted to strengthen California’s Equal 3 Pay Act, to address the intractable problem of women’s work being systematically undervalued 4 by California employers. The Legislature recognized that the Equal Pay Act, California Labor 5 Code section 1197.5, first passed in 1949, needed updating and was “rarely utilized because the 6 current statutory language made it difficult to establish a successful claim.” See Compensation 7 and Salaries―Disclosure―Rules and Regulations, 2015 Cal. Legis. Serv., Ch. 546, Section 1(c) 8 (S.B. 358) (West). In a statement, Governor Jerry Brown remarked that the new law was “among 9 the strongest in the nation.” See Curtis Skinner, California Governor Signs Gender Wage-Gap

10 Bill.1 At the signing ceremony, Governor Brown declared that “[t]he inequities that have plagued 11 our state and have burdened women forever are slowly being resolved with this kind of bill.” Id. 12 Now, ten women have bravely come forward to demand that The Walt Disney Company 13 and its affiliated companies (“Disney”)2 pay women equally to men, as the law requires. Given 14 the compelling nature of their stories—which Disney does not challenge in its Demurrer to 15 Plaintiffs’ Second Amended Complaint, or in the Alternative, Motion to Strike Class and PAGA 16 Representative Action Allegations (“Demurrer”)—it is not surprising that Disney hopes to block 17 their collective efforts to let women succeed at “The Place Where Dreams Come True.” 18 The allegations included in the Second Amended Complaint (“Complaint” or “SAC”) 19 satisfactorily plead all the elements of a claim under the Equal Pay Act. Additionally, in light of 20 Deadline 21 1 REUTERS (Oct. 6, 2015 ), https://reut.rs/34dSOFR (last visited November 3, 2019). 2 22 The Walt Disney Company is an employer of each of the named Plaintiffs and every Class member. See Castaneda v. Ensign Grp., Inc., 229 Cal. App. 4th 1015, 1019 (2014) (reserving 23 summary judgment vis-à-vis parent company; question of fact whether parent was joint- employer). The Second Amended Complaint includes ample factual allegations demonstrating 24 The Walt Disney Company’s employment—or, at least, joint-employment—of Plaintiffs. SAC, p. 5, n.11 (identifying The Walt Disney Company’s reference to “our employees,” that its 25 “Standards of Business Conduct” and “Employee Policy Manual” apply to all Disney employees, and refers to “The Walt Disney Company and Affiliated Companies” as ‘the company’ when 26 communicating with Plaintiffs); see also, e.g., p. 7, n.12 (explaining that Plaintiff Rasmussen’s offer letter was on The Walt Disney Company letterhead). Disney’s arguments to the contrary 27 are unavailing, and its sole cited case inapposite. See Demurrer, p. 7, n.2, citing Banawis-Olila v. World Courier Ground, Inc., No. 16-CV-0982-PJH, 2016 WL 2957131, at *3 (N.D. Cal. May 23, 28 2016) (“the conclusory allegation that ABC ‘bought World Courier’ is insufficient, without more … plaintiff can allege facts showing that ABC is plaintiff’s employer.”). -1- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER

1 the pattern of inequality revealed by the Plaintiffs’ allegations, the Complaint demonstrates a 2 community of interest among Class members. As discussed herein, the Complaint contains 3 plenty of “glue” holding Plaintiffs’ claims together with the other women they seek to represent. 4 Nonetheless, Disney’s Demurrer seeks to shortcut the discovery process and try Plaintiffs’ 5 entire case at the outset. Even when limited to the public record, and before any meaningful 6 discovery has taken place, the facts alleged demonstrate that Disney’s unequal treatment of 7 women spans the state of California, and, indeed, the globe: just last year Disney reported paying 8 women workers in the United Kingdom 22% less than men.3 Disney’s arguments about 9 predominance, typicality and superiority, as well as the purely-speculative defenses it may one

10 day raise, go to class certification, and are not properly decided at the demurrer stage. 11 For this Court to accept, as a matter of law, the unsubstantiated word of the Defendant on 12 the sole ground that Plaintiffs do not yet have access to the corporate records necessary for their 13 class certification motion, would undermine both the policies championed by the Equal Pay Act, 14 and the well-established standards for demurrer. Such an outcome would also perpetuate the 15 culture of secrecy that allows discriminatory pay to go unchecked in boardrooms across the state. 16 The Legislature has spoken. Ten women have spoken. Now it is up to the Court— 17 exercising its broad authority to effectuate the statute’s intent, see Cottle v. Super. Ct., 3 Cal. App. 18 4th 1367, 1376 (1992) (courts have inherent power to control litigation)4—to determine whether 19 Plaintiffs have adequately stated a claim under the Equal Pay Act for their case to proceed. 20 They have. Deadline 21 3 See https://variety.com/2018/biz/news/disney-nbc-gender-pay-gap-uktv-all3media-1202740354/ 22 (last visited November 3, 2019). 4 23 This broad authority extends to utilization of the class action device. See Linder v. Thrifty Oil Co., 23 Cal. 4th 429, 435 (2000) (“trial courts . . . are afforded great discretion in granting or 24 denying certification.”); Fireside Bank v. Super. Ct., 40 Cal. 4th 1069, 1087 (2007) (recognizing trial courts’ “broad discretion” in class action proceedings). In fact, California public policy 25 “encourages the use of the class action device.” Sav-on Drug Stores, Inc. v. Super. Ct., 34 Cal. 4th 319, 340 (2004). The California Supreme Court has explained that, in class action litigation, 26 “we must rely upon the ability of trial courts to adopt innovative procedures which will be fair to the litigants and expedient to serving the judicial process.” Vasquez v. Super. Ct., 4 Cal. 3d 800, 27 821 (1971). “There is, in short, significant flexibility in California trial courts for adjusting procedures to handle class actions.” CAL. DESKBOOK ON COMPLEX CIVIL LITIG. MGMT. § 580 28 (Vol. 1, Release 18 2019) (citing Wershba v. Apple Comput., Inc., 91 Cal. App. 4th 224, 240 (2001) (trial courts urged to exercise pragmatism and flexibility in class actions)). -2- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER

1 II. ARGUMENT 2 A. Legal Standard on Demurrer 3 For more than 130 years, California has required that allegations in pleadings be “liberally 4 construed, with a view to substantial justice between the parties.” Cal. Code of Civ. Proc. 5 (“CCP”) § 452 (1872). In keeping with that requirement, the California Supreme Court has made 6 clear that demurrers are strongly disfavoured. See generally, Comm. On Children’s Television, 7 Inc. v. Gen. Foods Corp. (“Children’s Television”), 35 Cal. 3d 197 (1983). Thus, to avoid 8 abusing their discretion, courts must not prematurely judge the merits of a case:

9 It is not the ordinary function of a demurrer to test the truth of the plaintiff’s allegations or the accuracy with which he describes the defendant’s conduct. A 10 demurrer tests only the legal sufficiency of the pleading. It ‘admits the truth of all material factual allegations in the complaint…; the question of plaintiff’s ability 11 to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.’ 12 13 Id., at 213-14 (internal citation omitted). 14 On a demurrer, all allegations of material fact are assumed to be true. See C.A. v. William 15 S. Hart Union High School Dist., 53 Cal. 4th 861, 866 (2012). “Further, we give the complaint a 16 reasonable interpretation, reading it as a whole and its parts in their context.” Id. (citing Zelig v. 17 Cty. of Los Angeles, 27 Cal. 4th 1112, 1126 (2002)). It is error for a trial court to sustain a 18 demurrer when the plaintiff has stated a cause of action “under any possible legal theory” or to 19 sustain a demurrer without leave to amend “if the plaintiff shows there is a reasonable possibility 20 any defect identified by the defendant can be cured by amendment.” Aubry v. Tri-City Hosp.

Deadline5 21 Dist., 2 Cal. 4th 962, 967 (1992) (citations omitted).

22 B. California’s Judicial Policy Favors Class Actions Surviving Demurrer. 23 When it comes to throwing out class actions at the demurrer stage, California courts are 24 particularly hesitant. “Judicial policy in California has long discouraged trial courts from 25 determining class sufficiency at the pleading stage and directed that this issue be determined by a

26 5 Should the Court find the Complaint lacking in any respect, Plaintiffs should be granted leave to 27 amend, as sustaining the demurrer without leave to amend would be an “extraordinary” judicial procedure. See Beckstead v. Super. Ct., 21 Cal. App. 3d 780, 783 (1971). “Such a drastic step is 28 unwarranted, and ordinarily constitutes an abuse of discretion if there is a reasonable possibility that the defect can be cured by amendment.” Id. (citation omitted). -3- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER

1 motion for class certification.” Gutierrez v. Cal. Commerce Club, Inc., 187 Cal. App. 4th 969, 2 976 (2010) (reversing order sustaining demurrer in wage and hour class case); see also Prince v. 3 CLS Transp., Inc., 118 Cal. App. 4th 1320, 1325-27 (2004) (same). “In order to effect this 4 judicial policy, the California Supreme Court has mandated that a candidate complaint for class 5 action consideration, if at all possible, be allowed to survive the pleading stages of litigation.” 6 Tarkington v. Cal. Unemployment Ins. Appeals Bd., 172 Cal. App. 4th 1494, 1510 (2009) 7 (internal citations omitted; emphasis supplied).6 8 The wisdom of permitting a proposed class action to survive demurrer is “elementary.” 9 Beckstead, 21 Cal. App. 3d at 783.

10 Class action litigation is proper whenever it may be determined that it is more beneficial to the litigants and to the judicial process to try a suit in one action 11 rather than in several actions. To make this determination, it is necessary to balance the benefits of trying a particular suit as a class action, against the 12 concomitant burdens. It is clear that the more intimate the judge becomes with the character of the action, the more intelligently he may make the determination. 13 If the judicial machinery encourages the decision be made at the pleading stages and the judge decides against class litigation, he divests the court of the power to 14 later alter that decision. However, if the decision is allowed to be deferred past the pleading stage, and even well into the trial on the merits, the balancing will be 15 more precise. Since it is both the litigants and the judicial process who are the beneficiaries of a wise decision, the overriding interest of all affected is to allow 16 the judge as much insight into the case as possible in making his determination. 17 Id. 18 Thus, a demurrer to class allegations must be overruled unless “it is clear there is no 19 reasonable possibility that the plaintiffs could establish a community of interest among the 20 potential class memberDeadlines.” Gutierrez, 187 Cal. App. 4th at 975 (internal citation omitted); see also 21 Vasquez, 4 Cal. 3d at 813 (same). “[A]ll that is normally required for a complaint to survive 22 demurrers to the propriety of class litigation is that the complaint allege facts that tend to show: 23 (1) an ascertainable class of plaintiffs, and (2) questions of law and fact which are common to the 24 class.” Beckstead, 21 Cal. App. 3d at 784. 25

26 6 In Tarkington, the Court of Appeal reversed an order sustaining a demurrer in a class case, 27 holding that it was “premature for the trial court to make determinations pertaining to class suitability on demurrer.” Id. at 1512. The court refused to reach the defendant’s arguments about 28 the purported lack of a community of interest, and held that defendant would be “free to raise these arguments and others when [plaintiffs] move to certify the class at a later stage.” Id. -4- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER

1 In Arce v. Kaiser Found. Health Plan, Inc., 181 Cal. App. 4th 471 (2010), the Court of 2 Appeal reversed the trial court’s order sustaining a demurrer in a class case. Defendant Kaiser 3 advanced the same types of arguments raised here, essentially that resolution of the claim would 4 require the court to make individualized determinations. Id. at 488. The Court of Appeal 5 recognized, however, that the complaint presented certain “central legal issues” and sufficiently 6 alleged that Kaiser had a “uniform policy” of denying health care coverage. Id. at 496.7 7 When a defendant chooses to demur to a class complaint, “this means that [the defendant] 8 has not yet even filed an answer, given any explanation or justification for the [conduct 9 complained of in the complaint], or asserted any defenses.” Sheehan v. San Francisco 49ers,

10 Ltd., 45 Cal. 4th 992, 998 (2009). As such, “further factual development is necessary” before the 11 defendant can prevail. Id. To put a finer point on it: to be raised on demurrer, an affirmative 12 defense or other defect in the complaint must clearly appear on the face of the complaint. See 13 StorMedia Inc. v. Super. Ct., 20 Cal. App. 4th 449, 455 n.5 (1999). Just as in Sheehan and 14 StorMedia, Plaintiffs here have stated a cognizable class-wide claim for equal pay, and should be 15 afforded the opportunity to conduct discovery, and to move for class certification thereafter.8

16 7 Defendants do not cite any on-point authority dismissing an equal pay class case, with 17 prejudice, at the demurrer stage. Although there have been cases in which the trial courts sustained demurrers/motions to strike class actions, the cases cited by Defendants for this 18 proposition are factually distinguishable or so procedurally variant from this case as to make them unpersuasive. Demurrer, pp. 8-10. None are binding. See Schermer v. Tatum, 245 Cal. App. 4th 19 912 (2016) (plaintiffs proposed 21 unmanageable subclasses); Canon U.S.A., Inc. v. Super. Ct., 68 Cal. App. 4th 1 (1998) (plaintiffs’ proposed nationwide class presented myriad choice of law 20 issues); Silva v. Block, 49 Cal. App. 4th 345 (1996) (after 2½ years of discovery, plaintiffs were still unable to identify Deadlinea class representative with standing); Tucker v. Pacific Bell Mobile Servs., 21 208 Cal. App. 4th 201 (2012) (individual reliance issues swamped consumer case); Brown v. Regents of Univ. of Cal., 151 Cal. App. 3d 982 (1984) (plaintiffs’ claims against coronary care 22 center involved a “veritable quagmire” of complex medical histories and even the most basic question—the medical center’s duty to the patient—was individualized). For on-point authority, 23 see, e.g., Barrett v. Forest Labs., Inc., 39 F. Supp. 3d 407, 451-53 (S.D.N.Y. 2014) (motion to dismiss class allegations in equal pay case premature); Calibuso v. Bank of Am. Corp., 893 F. 24 Supp. 2d 374, 377-78 (E.D.N.Y. 2012) (same). 8 25 It is improper to sustain a demurrer to class allegations where the plaintiff identifies discovery necessary for a determination on class certification. See, e.g., Newell v. State Farm Gen. Ins. Co., 26 118 Cal. App. 4th 1094, 1106 (2004) (sustaining demurrer without leave to amend because “plaintiffs do not identify any discovery that might lead to evidence to be presented at the hearing 27 on a certification motion at a later stage in the proceedings that would demonstrate they could satisfy the commonality and superiority requirements.”). Here, Disney has refused to produce 28 even the most basic discovery that would assist the parties and the Court in evaluating the permissible scope of the class definition. For example, Disney refuses to produce documents (footnote continued) -5- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER

1 C. Plaintiffs Have Adequately Alleged Claims Under California’s Equal Pay Act. 2 Each of the ten named Plaintiffs has stated a valid claim under California’s Equal Pay Act, 3 alleging that she has been, or is being, paid less than her male counterparts for the same or 4 substantially similar work, as a composite of skill, effort and responsibility, under similar 5 working conditions. SAC, ¶¶ 32, 46, 56, 61, 63, 65, 73, 78, 81, and 84. As Disney admits: 6 “Plaintiffs individually have provided some information about their alleged comparators in their 7 Complaint.” Demurrer, p. 11. That is all that is required to state a prima facie case under the 8 California Equal Pay Act. See Green v. Par Pools Inc., 111 Cal. App. 4th 620, 626 (2003); Hall 9 9 v. Cty. of Los Angeles, 148 Cal. App. 4th 318, 323-24 (2007).

10 Unlike a disparate impact discrimination claim, which requires a plaintiff to identify a 11 specific policy or practice that causes a disparity in order to state a claim, a claim for unequal pay 12 functions more like a strict liability claim: factual allegations that allege, plainly, that the 10 13 employer failed to pay women the same as men for equal work (before Jan. 1, 2016) or similar 14 work (from Jan. 1, 2016 forward) state a claim under the statute. See Cal. Labor Code § 15 1197.5(a). Additionally, unlike a disparate treatment discrimination claim, Plaintiffs are not

16 sufficient to show its corporate structure (like organization charts) or any standardized Human 17 Resources forms (like job applications and performance evaluations). See Declaration of Lori E. Andrus In Support of Plaintiffs’ Opposition to Demurrer to Plaintiffs’ Second Amended 18 Complaint, or in the Alternative, Motion to Strike Class and PAGA Representative Action Allegations (“Andrus Declaration” or “Andrus Decl.”), submitted herewith, ¶¶ 1-2. This refusal 19 puts Plaintiffs in an untenable position. Disney—and only Disney—has the information necessary to test Plaintiffs’ allegations. Id. To preclude discovery, while requiring that degree of 20 specificity at the demurrer stage, would be patently unfair, and would contravene the “substantial justice” goal of demurrersDeadline. See CCP § 452. 21 9 Plaintiffs are not required to identify their comparators by name, and the authority cited by Disney does not hold otherwise. Demurrer, p. 11, citing Hall, 148 Cal. App. 4th 318; Spencer v. 22 Virginia State Univ., 919 F.3d 199 (4th Cir. 2019). Moreover, in both cases, the courts of appeal reviewed summary judgment motions, after full development of the facts, and did not consider 23 the pleadings on demurrer. They are not controlling here. 10 24 Prior to Jan. 1, 2016 (the date the 2015 amendment to the Equal Pay Act went into effect), the statute provided: “No employer shall pay any individual in the employer’s employ at wage rates 25 less than the rates paid to employees of the opposite sex in the same establishment for equal work on jobs the performance of which requires equal skill, effort and responsibility, and which are 26 performed under similar working conditions…” Cal. Labor Code § 1197.5(a) (eff. until Dec. 31, 2015) (emphasis supplied). “Equal work” meant “substantially equal work.” See Negley v. 27 Judicial Council of Cal., 458 F. App’x. 682, 684 (9th Cir. 2011). In the Complaint, Plaintiffs use the terms “the same” work and “equal” work interchangeably. See, e.g., SAC, ¶¶ 32, 131. 28 Should the Court find Plaintiffs’ terminology insufficient to allege pre-Jan. 1, 2016 violations of the Equal Pay Act, leave to amend should be granted. -6- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER

1 required to allege (and the Court is not required to evaluate) discriminatory motive or intent. See 2 Green, 111 Cal. App. 4th at 624. Instead, California’s Equal Pay Act, plain and simple, prohibits 3 an employer from “pay[ing] any of its employees at wage rates less than the rates paid to 4 employees of the opposite sex for substantially similar work.” Cal. Labor Code § 1197.5(a). 5 Here, Plaintiffs’ Complaint sets forth detailed facts showing that Disney paid each of the 6 ten named Plaintiffs less than men for equal or substantially similar work on jobs that required 7 equal skill, effort, and responsibility, and performed under similar working conditions. SAC, ¶¶ 8 29-84. Particularly at the demurrer stage, these allegations are more than sufficient for Plaintiffs 9 to state their individual Equal Pay Act claims. See Bass v. Great W. Sav. & Loan Ass’n., 58 Cal.

10 App. 3d 770, 773 (1976) (denying motion for judgment on the pleadings in California Equal Pay 11 Act case on same basis as demurrer). As discussed below, the Complaint also adequately alleges 12 Equal Pay Act violations on a class basis. SAC, ¶ 131.

13 1. Plaintiffs’ Allegations Establish a Reasonable Possibility That A Community of Interest Exists Among Class Members. 14 Class action suits are appropriate when “the question is one of a common or general 15 interest, of many persons, or when the parties are numerous, and it is impracticable to bring them 16 all before the court.” CCP § 382. 17 To obtain class certification, a party must establish the existence of both an 18 ascertainable class and a well-defined community of interest among the class members. The community of interest requirement involves three factors: 19 (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can 20 adequately representDeadline the class. 21 Linder, 23 Cal. 4th at 434-35 (citations omitted). 22 Here, Plaintiffs’ allegations demonstrate a “reasonable possibility” that they can meet the 23 “community of interest” requirement for class claims under California law and, as such, the 24 demurrer should be overruled.11 See Vasquez, 4 Cal. 3d at 813. 25 26

27 11 28 Disney does not challenge the Complaint on adequacy grounds, and Plaintiffs have sufficiently pleaded that they will adequately represent the Class. SAC, ¶¶ 121-22. -7- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER

1 a) Plaintiffs Sufficiently Allege that Common Issues of Fact and Law Predominate. 2 Plaintiffs’ allegations tend to show that Disney’s liability under the Equal Pay Act will be 3 determined by issues of fact and law common to all Class members. 4 First, supporting the existence of a community of interest amongst Class members, 5 Plaintiffs have alleged that “Disney’s compensation policies, practices, and procedures are 6 consistent company-wide, and throughout the state of California.” SAC, ¶ 85. “Disney’s 7 Standards of Business Conduct apply equally to all of its employees, regardless of subsidiary, 8 business segment or division, as does its Employee Policy Manual.” Id., ¶ 89. “Disney HR 9 Global” oversees all human resource and compensation functions throughout the company, and 10 sets Disney’s uniform compensation policies. Id., ¶¶ 2, 86. 11 Moreover, the allegations in the Complaint reveal a pattern of unequal compensation at 12 Disney, one that is pervasive and not limited to a single division, or job title. SAC, ¶¶ 29-84. 13 After the benefit of discovery, Plaintiffs will use a statistical analysis of payroll and human 14 resources data to prove the pay disparities they allege occur throughout Disney’s workforce. See 15 e.g., Butler v. Home Depot, Inc., Nos. C-94-4335 SI, C-95-2182 SI, 1997 WL 605754, at *9 16 (N.D. Cal. Aug. 29, 1997).12 17 Companies engage in this type of statistical analysis all the time. See Kevin Miller and 18 Deborah Vagins, The Simple Truth About The Gender Pay Gap, AMERICAN ASSOCIATION OF 19 UNIVERSITY WOMEN (2018), p. 20, Andrus Decl., Exh. A (“Employers can use audits to monitor 20 and address gender payDeadline differences to great effect.”); see also Conducting a Pay Equity Audit, 21 THOMSON REUTERS, 2019, Andrus Decl., Exh. B (“The first step for many employers when 22 addressing a potential pay disparity is to conduct a pay equity audit.”).13 Pay equity audits are so 23 24

25 12 A regression analysis allows a statistician to determine if there are statistically significant differences in pay between two groups, such as men and women, after taking into account 26 (“controlling for”) variables that could legitimately explain differences in compensation. Statistics can thus be used to control for any potentially relevant factors, like qualifications or 27 experience. 13 28 A copy of this helpful primer from Skadden Arps is attached as Exhibit B to the Andrus Declaration. -8- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER

1 effective at addressing potential violations of equal pay laws that law firms advising corporations 2 about compliance routinely recommend them.14 3 At a minimum, Plaintiffs anticipate that a statistical analysis of Disney’s pay data will 4 show that women are paid less than their male counterparts even within job titles at Disney. We 5 know this to be true for Plaintiff Rasmussen—who was earning much less than “each of the six 6 men holding the same title as her,” SAC, ¶ 35—as well as for Plaintiffs Eady-Marshall (SAC, 7 ¶ 51), Train (SAC, ¶ 62), Dolan (SAC, ¶ 71), and Ly (SAC, ¶ 83).15 8 But the Complaint provides even more “glue” to hold this class together. See Wal-Mart 9 Stores, Inc. v. Dukes, 564 U.S. 338, 352 (2011). In addition to the allegations supporting the

10 basic elements of an equal pay claim (which is all that is tested on demurrer), and despite the fact 11 that they are not required to do so under the Equal Pay Act, Plaintiffs have identified some of 12 Disney’s specific practices that contribute to unequal compensation. These practices can be 13 adjudged on a common basis. For instance, Plaintiffs allege that:

14 historically, and during the relevant time period, Disney expressly considered each job applicant’s prior compensation (i.e., the compensation the prospective 15 employee was earning immediately prior to employment with Disney) in determining that employee’s initial compensation level. In doing so, Disney’s 16 hiring policies and practices perpetuated gender discrimination, since women’s salary history tends to reflect lower pay than men’s. By inquiring about salary 17 history, Disney’s compensation policies, practices and procedures continued the historic pay disparity between men and women, resulting in male employees 18 receiving higher starting salaries than women, even when those men and women are hired into the same job position and perform substantially equal or similar 19 work. 20 SAC, ¶ 96; see also ¶ 30Deadline (Disney collected Plaintiff Rasmussen’s salary history at hire).16 21 14 Counsel for Disney in this case, Paul Hastings LLP, is one such firm. See Andrus Decl., Exh. 22 C (“We use sophisticated statistical regression analysis to assist employers in assessing/redesigning compensation practices to ensure that they will not inadvertently create pay 23 differences based upon protected characteristics.”) and Andrus Decl., Exh. D (“We recommend employers prepare a self-critical, privileged, proactive pay analysis using the ‘rank sum’ test in 24 order to determine the scope of any pay disparities that the analysis may reveal, and take steps to mitigate, remediate, or determine other methods to address any pay disparities.”). 25 15 Disney’s argument about comparing male and female employees across job titles is a red herring. Demurrer, pp. 11-12. Although job titles are not determinative in equal pay cases—see 26 e.g., Davies v. Broadcom Corp., 130 F. Supp. 3d 1343, 1351 (C.D. Cal. 2015) (a person holding a different job title at a different time can nonetheless perform the same duties)—Plaintiffs’ equal 27 pay allegations are not limited to those instances where a female worker was ordered to take over a departing man’s more senior role without a pay raise. 28 16 To date, Disney has refused to produce standardized job applications (which would confirm a (footnote continued) -9- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER

1 Ultimately, once Plaintiffs verify Disney’s uniform use of job applications that require(d) 2 an applicant to reveal her salary history, the trier of fact will be able to determine whether that 3 practice resulted in Disney paying women employees less than men in violation of the Equal Pay 4 Act. See generally, Asking for Salary History Perpetuates Pay Discrimination from Job to Job,

5 NATIONAL WOMEN’S LAW CENTER (2018), Andrus Decl., Exh. E; see also, Torie A. Watkins, The 6 Ghost of Salary Past: Why Salary History Inquiries Perpetuate the Gender Pay Gap and Should

7 be Ousted as a Factor Other than Sex., MINN. LAW REVIEW, 103:1041 (2018), Andrus Decl., 8 Exh. F. That determination can be made once as to all female employees who were hired based 9 on those uniform job applications.17 See Wal-Mart, 564 U.S at 350 (“determination of its truth or

10 falsity will resolve an issue . . . in one stroke”).18 11 This is but one example of the common issues of law and fact that will be amenable to 12 class-wide resolution at the appropriate stage of litigation.19 On demurrer, Plaintiffs need not set 13 forth their comprehensive arguments in support of class certification—particularly without the 14

15 uniform, class-wide practice), though they clearly exist and would not be burdensome to produce. Andrus Decl., ¶¶ 1-2; see also https://jobs.disneycareers.com/ (online job application website for 16 Disney’s global job opportunities) (last visited Nov. 3, 2019). On this point, however, the allegations in the Complaint are enough to survive demurrer. 17 17 Since January 1, 2017, employers in California can no longer ask job applicants about prior salary history. See Cal. Labor Code § 432.3. Even if Disney currently complies with the new law 18 (and no longer asks about salary history), the impact of using such an application from the beginning of the class period (April 4, 2015) until January 1, 2017, means that at least some 19 portion of the Class could hold Disney accountable for any wage gap attributable to that practice. If necessary, a subclass could be utilized. See Brinker Rest. Corp. v. Super. Ct., 53 Cal. 4th 1004, 20 1033 (2012) (affirming certification of rest break subclass). 18 This example of an Deadlineobjective, common practice contributing to unequal pay distinguishes this 21 case from two equal pay class/collective action certification decisions cited by Disney, both of which were decided after the benefit of full discovery. Demurrer, p. 12, 15 n.5, 17, citing Ahad v. 22 Board of Trs. of S. Ill. Univ. and SIU Physicians & Surgeons, Inc., No. 15-cv-3308, 2018 WL 4350180 (C.D. Ill. Sep. 12, 2018) and Ahad v. Board of Trs. of S. Ill. Univ. and SIU Physicians & 23 Surgeons, Inc., No. 15-cv-3308, 2019 WL 1433753, at *7-8 (C.D. Ill. Mar. 29, 2019) (no “factual nexus” to bind plaintiffs together); Kassman v. KPMG LLP, No. 11 Civ. 3743, 2018 WL 6264835 24 (S.D.N.Y. Nov. 30, 2018) (“Plaintiffs do not provide ‘significant proof’ of a common initial pay disparity that KPMG’s compensation system could have compounded over time.”). 25 19 Other common practices are likely to contribute to unequal pay at Disney. For example, 26 Plaintiffs expect discovery to show that Disney calculates annual pay raises as a percentage of base pay, and that this practice results in women receiving smaller pay increases each year than 27 their male counterparts. Such a practice can be adjudicated on a class-wide basis. Likewise, if discovery reveals that Disney’s bonus calculations operate in the same fashion, that will be yet 28 another uniform practice underpinning liability. In the meantime, though, the allegations in Complaint are sufficient to survive demurrer. -10- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER

1 benefit of class-wide discovery20—and Plaintiffs’ allegations suffice to show a “reasonable 2 possibility” of being able to demonstrate a “community of interest” among all female Disney 3 employees.21 4 It is true that Disney employs a large workforce, but even in a big company, there is order. 5 For example, Disney organizes is employees by job title (e.g., Manager, Senior Manager, 6 Director). Each job title is associated with a salary range. Plaintiffs allege a pattern of Disney 7 placing women at the lower end of each salary range. SAC, ¶¶ 38, 51, 62, 71, 83. Once Plaintiffs 8 have access to Disney’s compensation data, they will be able to conduct a statistical analysis to 9 prove the truth of those allegations. One simply categorizes each Manager, Senior Manager, and

10 Director by gender, then generates a distribution that shows where women, and men, fall in each 11 salary range. Once Plaintiffs demonstrate that women are routinely paid less than men in each 12 salary range, Plaintiffs will have proven their prima facie case, and Disney will have a hard time 13 explaining why every individual female employee deserved to be at the bottom of the range. 14 The ten named Plaintiffs have each experienced these types of discriminatory practices at 15 Disney, and have observed other women experience them as well. These allegations justify 16 further discovery to allow Plaintiffs to confirm that these practices are company-wide (see SAC, ¶ 17 131), and to be in a position to confirm the aptness of the proposed class definition.22 18 20 Cruz v. Sun World Int’l, LLC, 243 Cal. App. 4th 367 (2015) and Soderstedt v. CBIZ S. Cal., 19 LLC, 197 Cal. App. 4th 133 (2011), Demurrer, p. 13, are not controlling here, as both cases denied class certification only after the parties conducted extensive discovery. 20 21 At the demurrer stage, and before discovery, it is premature to evaluate manageability and superiority, making theDeadline cases Disney cites on this point distinguishable. Demurrer, p. 17, citing 21 Koval v. Pacific Bell Tel. Co., 232 Cal. App. 4th 1050 (2014) (denying class certification post- discovery); Jimenez v. Domino’s Pizza, Inc., 238 F.R.D. 241 (C.D. Cal. 2006) (same); Bertroche 22 v. Mercy Physician Assoc., Inc., No. 18-CV-59-CJW-KEM, 2019 WL 4307127 (N.D. Iowa Sep. 11, 2019) (collective action decertified post-discovery); Cruz v. Dollar Tree Stores, Inc., Nos. 07- 23 2050 SC, 07-4012 SC, 2011 WL 2682967 (N.D. Cal. Jul. 8, 2011) (same). 22 24 The proposed class is sweeping due to the fact that Disney’s failure to comply with the Equal Pay Act is systemic, impacting Disney’s entire female workforce. This is not surprising, since 25 corporations across America routinely undervalue women workers at all levels. See The Simple Truth About The Gender Pay Gap, Andrus Decl., Exh. A, p. 15, “The research and data indicate, 26 therefore, that women experience pay gaps in nearly every line of work.”); see also Compensation and Salaries—Disclosure—Rules and Regulations. (“Th[e] wage gap extends 27 across almost all occupations reporting in California”). But large corporations are also capable of correcting sweeping problems, as many have done, by engaging in annual company-wide salary 28 audits to root out gender pay imbalances. See The Simple Truth About The Gender Pay Gap, Andrus Decl., Exh. A, p. 20 (discussing the efforts of Salesforce, Delta Airlines, Deloitte, (footnote continued) -11- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER

1 But there can be no discovery plan if Plaintiffs are denied the right to discovery 2 altogether, as Disney urges. In any event, these types of common factual allegations in the 3 Complaint are more than sufficient to show at least a reasonable possibility that common 4 questions of fact and law will predominate. See Prince, 118 Cal. App. 4th at 1329 (overruling 5 demurrer to class allegations because plaintiff “alleges institutional practices . . . that affected all 6 of the members of the potential class in the same manner. . . . At this stage, no more is 7 required.”).

8 b) Plaintiffs Sufficiently Allege That Their Claims Are Typical. 9 “The test of typicality is whether other members have the same or similar injury, whether

10 the action is based on conduct which is not unique to the named plaintiffs, and whether other 11 class members have been injured by the same course of conduct.” Martinez v. Joe’s Crab Shack 12 Holdings, 231 Cal. App. 4th 362, 375 (2014). The allegations in the Complaint sufficiently allege 13 that each of named Plaintiffs is paid less than her male counterparts for the same or substantially 14 similar work. SAC, ¶¶ 29-84. Plaintiffs have also alleged that class members throughout 15 California have suffered the same injury (unequal wages) due to a common course of conduct by 16 Disney (paying women less than men for substantially similar or equal work) that is not unique to 17 Plaintiffs. SAC, 2:19-20, ¶¶ 93, 116-120. These claims all arise out of the same factual nexus of 18 Disney’s common pay practices, including its reliance on prior pay to set initial compensation. 19 These allegations satisfy the typicality standard, at least at the demurrer stage.23 See Martinez, 20 231 Cal. App. 4th at 375.Deadline 21 Although Disney lists various purported differences between Disney employees (see 22 Demurrer, pp. 11-12, 13-14), none of those are legally relevant to Plaintiffs’ Equal Pay Act 23 claims. That Plaintiffs have worked in different business segments, or for different managers

24 Facebook, Gap, Inc., General Motors, Johnson & Johnson, Microsoft, PepsiCo, and Staples to 25 eradicate unequal pay from their employee ranks). 23 26 The cases Disney relies on are both factually distinguishable, and neither was decided at the demurrer stage. Demurrer, p. 15, citing Caro v. Procter & Gamble Co., 18 Cal. App. 4th 644 27 (1993) (consumer plaintiff not typical because he did not share belief that defendant’s orange juice was “fresh”) and Bauman v. Islay Invs., 45 Cal. App. 3d 797 (1975) (at class certification 28 stage, plaintiff presented no evidence that landlord had wrongfully withheld any other tenant’s deposit). -12- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER

1 than some other Class members, has no bearing on the straightforward comparison called for by 2 the Equal Pay Act: whether Disney paid female employees less than male employees for the same 3 or substantially equal work.24 Demurrers must be judged on the face of the complaint, and not on 4 suppositions about what the evidence will or will not support, and Plaintiffs’ Complaint raises no 5 differences between the nature of Plaintiffs’ claims and those of the other Class members.

6 2. Defenses Are Not a Proper Basis For Demurrer. 7 Disney raises a number of purported defenses to Plaintiffs’ Equal Pay Act claims, but 8 these arguments are not appropriately before the Court at this stage. See StorMedia, Inc., 20 Cal. 9 4th at 455 n.5 (to be raised on demurrer, an affirmative defense must clearly appear on the face of

10 the complaint). Having alleged facts sufficient to state their prima facie case, Plaintiffs are not 11 required to anticipate and respond to all possible defenses in the Complaint. 12 For example, Disney’s contention that pay disparities between its male and female 13 employees could be the result of seniority, education, or some other bona fide factor other than 14 sex (see Demurrer at pp. 13-14), is pure conjecture and not a proper basis for demurrer. Whether 15 a wage differential is based on a permissible exception is an affirmative defense on which the 16 defendant bears the burden of proof. See Green, 111 Cal. App. 4th at 624; Cal. Labor Code 17 § 1197.5(a)(1) (prohibiting gender pay disparity unless the “employer demonstrates” one of four 18 statutory exceptions). A seniority system or other bona fide factor does not appear on the face of 19 Plaintiffs’ Complaint. To the contrary, Plaintiffs allege that “Disney cannot point to any bona 20 fide factors other than Deadlinesex that account for the entire wage differential.” SAC, ¶ 102.25 21 24 Disney’s argument that the class “necessarily include[s] some of the individuals making the 22 alleged discriminatory employment decisions,” is immaterial. Demurrer, pp. 15-16. Disney relies on cases which asserted intentional discrimination under Title VII, and neither addressed 23 the sufficiency of the pleadings on demurrer. See id., citing Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003); Wagner v. Taylor, 836 F.2d 578 (D.C. Cir. 1987). 24 25 The cases on which Disney relies (see Demurrer, pp. 13-14)—one post-certification appeal and 25 two appeals after class trials—are procedurally and factually distinguishable from the present case. See McCleery v. Allstate Ins. Co., 37 Cal. App. 5th 434 (2019) (class certification improper 26 where plaintiffs’ trial plan offered only an anonymous survey of absent class members); Granberry v. Islay Invs., 9 Cal. 4th 738 (1995) (trial judge ruled that defendant had to return the 27 full security deposits to class members without any setoff for any unpaid rent, repairs and cleaning); Duran v. U.S. Bank Nat’l Ass’n., 59 Cal. 4th 1 (2014) (trial court’s flawed 28 implementation of a sampling plan at trial denied defendant an opportunity to impeach the model; trial court’s “particular approach to sampling was profoundly flawed.”). Each of these cases are (footnote continued) -13- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER

1 Disney hopes to prevent any scrutiny of its compensation data by litigating its potential 2 defenses before Plaintiffs have had the opportunity to prove their prima facie case. Disney cannot 3 justify a demurrer by placing the cart before the horse.

4 D. Plaintiffs’ Waiting Time Penalties Claim Is Properly Pled. 5 Disney argues that waiting time penalties are not recoverable in cases involving the 6 California Equal Pay Act, but cites no authority for the proposition. Demurrer, pp. 17-18. 7 Disney’s argument—that Plaintiffs were paid the (lower) wages they were owed, just not the

8 equal wages they allege they were owed—is really just an assertion that Disney has a “good faith 9 dispute” (pursuant to Cal. Code Regs. tit. 8, § 13520) whether there were any additional wages

10 due when Plaintiffs Sinn, Johnson and Ly left Disney’s employ. Id. As with Disney’s other 11 defenses, this one is not ripe for determination at the demurrer stage.26 12 Plaintiffs have pled the elements of their waiting time penalties claim pursuant to 13 California Labor Code sections 201-203 in a manner sufficient to survive demurrer. See Caliber 14 Bodyworks, Inc. v. Super. Ct., 134 Cal. App 4th 365, 386 (2005) (demurrer to waiting time 15 penalties claim overruled).

16 E. Plaintiffs’ PAGA Representative Claims for Violations of the California Equal Pay Act are Well-Pled. 17 Plaintiffs have also adequately pled their Private Attorney General Act (“PAGA”) claims 18 based on violations of California’s Equal Pay Act.27 See Home Depot U.S.A., Inc. v. Super. Ct., 19 191 Cal. App. 4th 210, 225-26 (2010) (demurrer to PAGA claims regarding failure to provide 20 seating overruled). AnDeadline aggrieved employee suing in a representative capacity under PAGA is not 21 required to satisfy class action requirements if the action is brought in state court. See Arias v. 22 Super. Ct., 46 Cal. 4th 969, 980 (2009). 23

24 limited to their unique facts, and none involved the Equal Pay Act. 26 Notably, none of the cases Disney cites were decided at the pleading stage. Demurrer, pp. 17- 25 18, citing Barnhill v. Robert Saunders & Co., 125 Cal. App. 3d 1 (1981) (post-judgment appeal); Diaz v. Grill Concepts Servs., Inc., 23 Cal. App. 5th 859 (2018) (same); Road Sprinkler Fitters 26 Local Union No. 669 v. G&G Fire Sprinklers, Inc., 102 Cal. App. 4th 765 (2002) (same). 27 27 Plaintiffs concede that their PAGA representative claims for waiting time penalties are time- barred. In an amended complaint, Plaintiffs will excise those claims. With respect to their PAGA 28 claims based on violations of the Equal Pay Act, Plaintiffs notified the Labor Workforce Development Agency more than 65 days before filing the SAC. SAC, § 151. -14- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER

1 The cases on which Disney relies do not persuade otherwise. In Ovieda v. Sodexo 2 Operations, LLC, No. CV 12-1750-GHK (SSx), 2012 WL 1627237 (C.D. Cal. May 7, 2012), the 3 plaintiff’s complaint “fail[ed] to allege even the most basic facts regarding her employment” to be 4 plausible under Ashcroft v. Iqbal, 556 U.S. 662 (2009), an argument that Disney doesn’t raise 5 here. The district courts in Amiri v. Cox Comms. Cal., LLC, 272 F. Supp. 3d 1187 (C.D. Cal. 6 2017)28 and Ortiz v. CVS Caremark Corp., No. C-12-05859, 2014 WL 1117614 (N.D. Cal. Mar. 7 19, 2014)29 granted motions to strike representative allegations because plaintiffs could not point 8 to a uniform policy that could be applied to all aggrieved employees.30 As discussed above, the 9 Equal Pay Act does not require Plaintiffs in this case to identify such a policy, and, in any event,

10 Plaintiffs have done so.

11 III. CONCLUSION 12 The policy behind California’s Equal Pay Act is clear: the centuries-old practice of 13 underpaying women is harming women, and is also harming the State’s economic health. SAC, 14 p. 2:4-6. The allegations included in Plaintiffs’ Complaint clearly set forth all the elements 15 required under the Equal Pay Act. The Complaint also provides ample assertions of fact to 16 demonstrate a “reasonable possibility” that a community of interest exists among the proposed 17 Class members. See Vasquez, 4 Cal. 3d at 813. As such, “the preferred course is to defer 18 decision on the propriety of the class action.” Gutierrez, 187 Cal. App. 4th at 975. 19 Well-supported claims must be investigated, not dismissed. The goals of California’s 20 Equal Pay Act cannot Deadlinebe realized if women’s voices are silenced and discovery is curtailed. 21 Defendants’ Demurrer merely seeks to advance class certification to the pleading stage, and 22 makes no real argument that the Complaint fails to state a claim. It should be overruled. 23 28 Amiri is procedurally distinct from this case, as well. After discovery, the district court granted 24 the defendant’s motion for denial of class certification. Id. at 1191-92. Plaintiffs then added a representative PAGA claim and defendant moved to dismiss the PAGA allegations. Id. 25 29 Moreover, in Ortiz, the plaintiffs’ claims were impossible to try in a representative action because there was no suggestion of proof that would show that each aggrieved employee actually 26 worked off the clock. Here, after discovery, Plaintiffs anticipate that Disney’s compensation data will show that women are underpaid throughout the company. 27 30 Dailey v. Sears, Roebuck & Co., 214 Cal. App. 4th 974 (2013) (no uniform policy revealed in 28 discovery) and Litty v. Merrill Lynch & Co., Inc., No. CV 14-0425 PA (PJWx), 2014 WL 5904904 (C.D. Cal. Nov. 10, 2014) (same) are likewise distinguishable. -15- PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ DEMURRER

1 Date: November 6, 2019 ANDRUS ANDERSON LLP

2 By: /s/ Lori E. Andrus . 3 Lori E. Andrus

4 Lori E. Andrus (SBN 205816) Jennie Lee Anderson (SBN 203586) 5 ANDRUS ANDERSON LLP 155 Montgomery Street, Suite 900 6 San Francisco, CA 94104 7 Telephone: (415) 986-1400 Facsimile: (415) 986-1474 8 [email protected] [email protected] 9 Attorneys for Plaintiffs, the Proposed 10 Class, and the Aggrieved Employees 11 12 13 14 15 16 17 18 19 20 Deadline 21 22 23 24 25 26 27 28

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