1 2 3 4 5 6 7 8 FERNALD LAW GROUP APC ADAM P. ZAFFOS (BAR NO. 217669) BRANDON C. FERNALD (BAR NO. 222429) PAUL W. SANDE (BAR NO. 296357) 510 W. Sixth St., Suite 700 Los Angeles, California 90014 Telephone: (323) 410-0300 Facsimile: (323) 410-0330 E-Mail: adam@fernaldlawgroup.com brandon@fernaldlawgroup.com paul@fernaldlawgroup.com Attorneys for Plaintiff SHAYLA FAMOURI 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF LOS ANGELES 12 13 SHAYLA FAMOURI, an individual, Plaintiff, 14 15 16 17 18 19 Case No.: ___________________ COMPLAINT FOR DAMAGES FOR: v. 1) LULULEMON ATHLETICA USA, INC., a California Corporation, PHILIP SILVA, an individual, and DOES 1 through 10, inclusive, 2) 3) 4) Defendants. 5) 20 21 22 23 6) 7) 8) 24 25 26 27 9) 10) SEXUAL ASSAULT AND BATTERY; GENDER VIOLENCE – CIVIL CODE § 52.4; SEXUAL HARASSMENT IN VIOLATION OF FEHA HOSTILE WORK ENVIRONMENT IN VIOLATION OF FEHA FAILURE TO TAKE ALL REASONABLE STEPS TO PREVENT SEXUAL HARASSMENT IN VIOLATION OF FEHA RETALIATION IN VIOLATION OF FEHA NEGLIGENT RETENTION AND SUPERVISION VIOLATION OF CALIFORNIA’S UNFAIR BUSINESS LAWS – CAL. BUS AND PROF. CODE §§ 17200 ET SEQ. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS SEXUAL HARASSMENT – CIVIL CODE §51.9 [DEMAND FOR JURY TRIAL] 28 COMPLAINT FOR DAMAGES 1 2 For her Complaint against Lululemon USA, Inc., Philip Silva, and DOES 1 through 10, inclusive (collectively, the “Defendants”), plaintiff Shayla Famouri alleges as follows: 3 4 5 6 PARTIES 1. Plaintiff SHAYLA FAMOURI (“Plaintiff” or “Famouri”) is, and at all times relevant herein was, an individual residing in the County of Orange, State of California. 2. Upon information and belief, defendant LULULEMON USA, INC. (“Lululemon”) 7 is and at all times relevant herein was, a Nevada Corporation doing business within the County of 8 Los Angeles, State of California. 9 10 11 3. Upon information and belief, defendant PHILIP SILVA (“Silva”) is and at all times relevant herein was, an individual residing in the County of Los Angeles, State of California. 4. Plaintiff is not aware of the true names and capacities, whether individual or 12 corporate, associate or otherwise, of Defendants Does 1 through 10 (“Defendant Does”). Plaintiff 13 therefore sues Defendant Does by such fictitious names and asks leave of Court to amend the 14 complaint to show their true names and capacities when the same have been fully ascertained. Each 15 of these fictitiously named cross-defendants is responsible in some way, whether directly or 16 indirectly, for the injuries complained of in this action. 17 5. Each of the Defendants named herein is and at all times relevant herein was, the 18 agent, servant, employee, joint venture, partner, or associate of each of the other Defendants and as 19 such was acting within the course, scope, and authority of such agency, employment, joint venture, 20 partnership, and/or association and with the permission, consent, authorization, and ratification of 21 one another such that each of the Defendants is responsible in some manner or to some degree for 22 the actions and/or omissions of each of the other Defendants sued herein. 23 24 JURISDICTION AND VENUE 6. The acts that caused Plaintiff’s damages as alleged herein occurred in the County of 25 Los Angles within the jurisdiction of the Superior Court of Los Angeles County. Additionally, one 26 or more of the defendants reside in the County of Los Angles and conduct business in the County 27 of Los Angeles within the jurisdiction of the Superior Court of Los Angeles County. 28 -1COMPLAINT FOR DAMAGES 1 7. This Court has jurisdiction over the present matter because, as delineated within this 2 Complaint, the nature of the claim and amount in controversy meet the requirements for the 3 unlimited jurisdiction in the Superior Court of Los Angeles County. 4 5 GENERAL ALLEGATIONS 8. Famouri began working for Lululemon in or about November 11, 2014 as a sales 6 representative (referred to by Lululemon as an “Educator”) at the Lululemon retail store in Santa 7 Monica, California. 8 9. Famouri interviewed with and was hired by Santa Monica store manager Brittney 9 Ondrejko (“Ondrejko”). As is customary at Lululemon, the final interview consists of management 10 and interveiewee taking a workout class together and going for breakfast after which an official 11 offer of employment is made. 12 10. Under the store manager were four assistant managers and approximately ten shift 13 mangers (referred to by Lululemon as “Key Leaders”), Key Leaders are the Educators’ primary 14 supervisors. Key Leaders opened and closed the store (had keys to the door) and were responsible 15 for every aspect of the Educators’ shift and report on their performance. If there are any problems 16 during their shift, Educators are trained to bring said issues to their Key Leader. 17 11. The average age range of Lululemon employees at the Santa Monica store was 18- 18 30. While Lululemon primarily targets women with their athletic wear, particularly their stretch 19 yoga pants, the company also has a smaller men’s line. Santa Monica is Lululemon’s flagship store 20 which has a much larger men’s section than the others. Lululemon employs some men, however 21 the majority of the staff are women. 22 12. Famouri was initially hired as seasonal part-time employee but did such a good job 23 that one day Ondrejko invited Famouri to take a yoga class with her afterwhich she gave Famouri 24 a card asking her to stay on as a regular part-time employee. Though Famouri was considered part- 25 time, she regularly worked in excess of thirty hours per week. During the three years she worked 26 with Lululemon, Famouri received positive performance reviews. 27 28 -2COMPLAINT FOR DAMAGES 1 13. In or about July 2015, Famouri started Business School at the University of Southern 2 California (“USC”). Ondrejko was so pleased with her work that she was asked Famouri to stay on 3 the schedule for at least one day a week. Famouri agreed and continued to work at Santa Monica 4 during weekends and also picked up shifts at other Lululemon stores as often as her schedule would 5 permit. 6 14. Lululemon promoted an inclusive work environment. At team meetings and through 7 corporate directives, employees were encouraged to work out together and take fitness classes 8 together. Further, it was well known by management and encouraged by management that 9 employees socialize together. In fact, management regularly advised its employees that Lululemon 10 did not spend much money on traditional forms of advertising. Instead, Lululemon relied on its 11 employees to showcase its clothing at yoga and other workout classes as brand ambassadors. 12 Indeed, Lululemon relied on its employees working out and hanging out together in its clothing as 13 its near sole means of advertising. Employees were given deep discounts on Lululemon products, 14 and the company paid for each employee to attend two exercise classes per week. Lululemon 15 employees were pressured to wear their Lululemon products to said fitness classes for the purpose 16 of promoting the brand through their employees. 17 18 19 15. In or about September 2015, Phillip Silva (“Silva”) was transferred from Lululemon’s retail store in El Segundo to the Santa Monica store. 16. Unbeknownst to Famouri at the time, Silva was transferred because the company 20 wanted to promote him from Educator to Key Leader but too many of the female employees at the 21 El Segundo store felt uncomfortable with Silva as he had been sexually inappropriate with them. 22 Thus, Silva was transferred to the Santa Monica Store and given a promotion. At the time of said 23 transfer, Ondrejko knew that Silva was being transferred because he had been sexually 24 inappropriate with several female employees at the El Segundo store. 25 26 17. Given Famouri’s work and school schedule, she did not get to know Silva very well until Lululemon’s corporate culture pushed them together. 27 28 -3COMPLAINT FOR DAMAGES 1 18. In March 2016, Lululemon conducted their annual Sweat Week. During Sweat 2 Week, all Lululemon retail stores competed with one another to determine which store could 3 collectively log the most workout hours. The store that logged the most hours won the coveted 4 Lemon Cup. On information belief, corporate directed its managers to stress the importance of 5 Sweat Week and push their employees to participate. 6 19. During Sweat Week, Lululemon paid for employees to attend as many fitness 7 classes as possible. It was highly competitive and employees were encouraged to work out together 8 as much as possible. The Lululemon Santa Monica store had a Facebook page on which employees 9 would post which classes they were going to take so that co-workers could show up and work out 10 together. Lululemon used Sweat Week to push its brand to consumers, showcasing its yoga pants 11 through groups of employees, one fitness class at a time. The consuming public, unaware that the 12 groups of Lululemon wearing employees were in essence paid to attend, merely assumed that the 13 Lululemon brand was becoming more popular and would be influenced to go purchase Lululemon 14 products. Indeed, Sweat Week had nothing to do with fitness or employee well-being, it was simply 15 an advertising campaign aimed at selling more yoga pants. 16 20. On the first Monday that kicked off Sweat Week, Silva reached out to Famouri on 17 social media asking for her phone number so that they could coordinate workout schedules. 18 Famouri did not know Silva very well at the time however, as he was a Key Leader and as it was 19 Sweat Week, she felt compelled to comply with her boss’s order and provided her phone number 20 to Silva who thereafter began relentlessly texting her almost immediately. 21 21. At first, Silva’s messages were related to working out. Silva boasted about the 22 multiple classes he planned to attend on a given day and then asked about Famouri’s schedule. 23 Given the employee/supervisor relationship, Famouri felt obligated to respond and communicate 24 in a jovial manner. She also felt increased pressure to work out as much as possible given the 25 backdrop of the company culture and now having a supervisor text messaging her every day about 26 her workout schedule. 27 28 -4COMPLAINT FOR DAMAGES 1 22. Silva consistently peppered Famouri with requests to work out. Famouri attempted 2 to make time but also explained that her school schedule, which included full days of instruction 3 and projects, made it difficult. 4 23. Silva continued to prod Famouri, saying “the cup is more important than 5 school…You can get a degree anytime. There is only one time you can say you won the first lemon 6 cup”. He continued to coerce her “We are sitting in 5th place.” Silva attempted to meet with 7 Famouri so frequently, under the guise of working out, that every time Famouri could not oblige, 8 she felt that it was reflecting negatively on her work performance. 9 24. Famouri would explain that she had to be on campus late and Silva would respond 10 that he would be going to five different exercise classes the following day and asked if she could 11 join. Famouri felt obligated to continue to not only respond to Silva but to make a greater effort to 12 workout with her boss. 13 25. Famouri eventually found time to meet Silva at an exercise class called f45. It lasted 14 45 minutes and consisted of using several different workout machines at a very fast pace. 15 Thereafter, Silva invited Famouri to breakfast. Famouri was apprehensive, however given that the 16 company encouraged employees to workout together and be seen in the community (her final 17 interview consisted of working out with her boss and then getting breakfast) Famouri agreed. 18 Further, Famouri was nervous about turning down a supervisor’s invitation especially after turning 19 him down so many times before. 20 26. During the breakfast, Famouri talked about school and her need to get an internship 21 for the approaching summer. She further expressed that she wanted to try and get an internship with 22 Lululemon at the corporate level. Silva encouraged her to do so and thought it was good idea. 23 Abruptly, however, Silva steered the conversation toward his own sex life. Silva started talking 24 about the fact that he is on Tinder (a dating website renowned for being used to initiate causal sex) 25 and further discussed his recent adventures of going to a sex party with a 50-year-old woman. 26 Famouri was uncomfortable with the conversation however she kept up appearances with her boss, 27 smiling and awkwardly chuckling through the rest of breakfast. 28 -5COMPLAINT FOR DAMAGES 1 27. After the meeting, Famouri considered reporting the conversation to her manger but 2 she feared reprisal. It was not uncommon for supervisors and even assistant managers to talk about 3 their sex lives at work. 4 28. Famouri recalled an encounter at Lululemon when she was bending over the return 5 bin to grab a piece of merchandise. A co-worker made a joke, lamenting the fact that this would be 6 the closest he would ever get to Famouri’s ass. Famouri’s female assistant manager overheard the 7 comment and rather than discipline the employee brushed it off with a comment of “you’re so 8 gross”. 9 29. On another occasion, during Famouri’s shift at Lululemon, the same coworker made 10 a comment to Famouri stating that he only liked girls with a fat pussy. Famouri’s key leader was 11 standing next to Famouri at the time, and the coworker received no discipline. 12 30. These types of sexual comments and ‘jokes’ made by, to, or in the presence of 13 Educators, Assistant Mangers, and Key Leaders were common place and never met with discipline 14 or reprisal. 15 31. In another instance, Famouri recalled being in the break room with several fellow 16 co-workers while an assistant manager described a sexually explicit story. After a Lululemon 17 corporate event in Malibu during which the employee participants drank to excess, the Assistant 18 Manager was driving himself and several coworkers home including a Team Leader and another 19 Assistant Manager, both women. At a point, he left the car with his female coworkers inside and 20 came back to find the Assistant Manager performing oral sex on the Key Leader. The story was 21 met with jeers and laughs, notwithstanding the fact that this was a manager performing oral sex on 22 her female subordinate while she was intoxicated. Famouri latter discussed the incident with the 23 Key Leader who confessed to her that it only happened because she was drunk, she was married at 24 the time, and regretted that it had happened and was embarrassed that her coworkers knew about 25 it. 26 27 28 32. Famouri further recalled a team meeting during which the company required all employees to watch a sexual harassment video. Famouri recalled that the video described the -6COMPLAINT FOR DAMAGES 1 difference between acts that constituted sexual harassment and those that did not. The video 2 illustrated that slapping another coworker’s ass was sexual harassment. Employees chuckled 3 through the video. For several weeks thereafter, coworkers store-wide made it point to try and slap 4 each other’s asses as much as possible as a means of mocking the video. The Store Manager, 5 Assistant Mangers, and Key Leaders were not only aware of the “game”, they encouraged it and 6 participated. No one received discipline for playing the “game”. 7 33. Famouri was also ostracized by her supervisors and co-workers for not wearing tight 8 or revealing enough clothes. Famouri preferred to wear more baggy, less form-fitting clothes to 9 work. Her managers and supervisors constantly admonished her for not wearing clothes that were 10 tight or revealing enough, in their opinions. Famouri would often try to purchase Lululemon clothes 11 from the store, however most of the Assistant Managers or Key Leaders would refuse to check her 12 out as her choices were not, in their opinions, sexy enough. Famouri would have to find a Key 13 Leader that she was closer with who would quietly check her out. 14 34. Famouri also recalled a shift during which her supervisor forced Famouri to wear 15 more revealing clothes. Famouri’s female Key Leader, upset with Famouri’s lose fitting clothes, 16 gave Famouri a very short skirt to try on. The Key Leader thereafter directed Famouri to wear the 17 skirt for the next three shifts. Famouri was very uncomfortable wearing the skirt, felt exposed and 18 embarrassed, however followed the order and kept it on. Again, Lululemon relies on its employees 19 to showcase their products as their near sole means of advertising. 20 35. On a similar occasion, another female Key Leader told Famouri that she was 21 dressing too “frumpy” and gave Famouri a pair of mesh, see-through yoga pants to wear for the 22 rest of her shift. Famouri was again uncomfortable wearing the clothes but followed her boss’s 23 order. 24 36. It was also routine for employees at Lululemon to date. Gossip about dating and 25 hook ups were rampant amongst employees at Lululemon. Parties and outings were regularly held 26 during which employees drank to excess and hooked up with one another. Famouri recalls seeing 27 her boss extremely intoxicated on more than one occasion. 28 -7COMPLAINT FOR DAMAGES 1 37. Thus, given the corporate culture at Lululemon, Famouri decided to keep quiet and 2 continue to act unbothered as Silva made repeated attempts to meet with her and steer their 3 conversations toward sex. 4 38. After the first meeting, Famouri was reluctant to work out with Silva again but 5 continued text messaging with him in order to keep up appearances. Again, Silva was a supervisor 6 and Famouri feared reprisal if she became curt or ceased communication. She did not want to be 7 further ostracized for being “prude” as management had repeatedly done in the past. 8 9 10 11 39. Silva continued to boast about the number of workouts he was fitting into a single day and continued to pester Famouri to work more and with him. Famouri continued to say she was busy at school but always let him down gently. 40. Silva was persistent. Continued talking about his exercising routines and asking 12 Famouri to join. At a certain point, Silva began asking Famouri to meet him in Hermosa Beach. 13 Unbeknownst to Famouri at the time, Silva lived in Hermosa Beach. He constantly asked Famouri 14 to meet him in Hermosa Beach to work out, boasting about how “amazing” the classes were and 15 how it was only a short walk from his house. 16 41. Silva continued to invite Famouri to Hermosa Beach for work out classes. After 17 denying Silva repeatedly, Famouri finally agreed. Silva directed her to meet at his house. Famouri, 18 attempting to keep their conversations about work or school was complaining about how sore her 19 legs were from a previous work out. Silva offered to help massage her legs. Again, given how often 20 employees were directed to work out together which would, sometimes, include helping each other 21 stretch, Famouri agreed. Silva used the opportunity to become intimate with Famouri. Initially 22 surprised, Famouri quickly stopped Silva and said that they should not be intimate. Silva promised 23 Famouri that it was fine, said that nobody cared and that everybody did it. Given his supervisory 24 position, Famouri allowed the make-out session to continue but felt uneasy thereafter. Famouri and 25 Silva did not have intercourse at this time. 26 27 28 42. After the encounter, Silva’s text messages became increasingly more vulgar. Famouri did her best to brush him off without being too curt. Silva did not relent. At a point, -8COMPLAINT FOR DAMAGES 1 Famouri got very sick with strep throat and used it as an excuse as to why she could not hang out 2 with Silva. Nonetheless, Silva continued to persist even though Famouri was highly contagious 3 with strep throat. 4 43. At this point, Famouri had had enough. She was done being nice to appease the 5 boss and decided to end Silva’s continued attempts to advance a relationship with her. Rather than 6 do so over text or phone, because Silva was a supervisor and she had already turned him down 7 several times over the past two weeks, Famouri decided it was better to tell him in person. 8 44. On April 22, 2016, Famouri picked Silva up from his house (Silva did not have a 9 car) and the two went to Sushi. For some reason unbeknownst to Famouri, Silva’s attitude 10 completely changed. Rather than being playful, he was angry and rude. At dinner, he called Famouri 11 fat and told her not to eat, called her stupid and told her she would never find a summer internship. 12 Famouri was shocked and hurt. She had no clue as to what caused Silva’s complete change in 13 personality. Famouri was quiet throughout dinner. Silva ordered several items though Famouri did 14 not eat. When the check came, Silva just sat waiting and so Famouri, wanting to leave, paid the 15 check herself. 16 45. Famouri drove Silva back to his house. Before getting out of the car, Silva began 17 prophetically apologizing, saying “just come in for a second…I’m sorry, I’m sorry…please just 18 come in and let me apologize and explain.” 19 46. Famouri did not want to go into his house, she wanted to leave but Silva was literally 20 begging and again this was her supervisor who had just berated her for being fat and stupid. Famouri 21 agreed to go inside to talk for a moment but made very clear she was not interested in having sex. 22 Famouri figured that she could explain that she did not want to see Silva again and hoped to get 23 him to agree to try to keep things professional at the store. 24 47. As soon as Famouri got inside, Silva was all over her. Famouri began saying “no, 25 stop, I do not want to do this, I only wanted to talk.” Silva was not responding, he continued to kiss 26 her neck and feel her up. Famouri tried to wiggle away but Silva, at 6’3 and constantly working 27 out, easily overpowered her. Famouri could not get away despite her best efforts. 28 -9COMPLAINT FOR DAMAGES 1 48. Silva shoved Famouri onto his bed and became even more aggressive. With extreme 2 force, Silva pinned her down and began undressing himself. Famouri continued to tell Silva “no, 3 stop” to no avail. Silva continued to hold Famouri down and pulled off her shirt. Famouri continued 4 to squirm and try to get away. Unfortunately, Famouri was wearing Lululemon yoga pants at the 5 time and Silva was able to easily pull them off. Famouri again yelled “no, I don’t want to have sex 6 with you!” Silva responded, “this isn’t sex, this is just the tip,” and as he proceeded to rape his 7 subordinate Silva callously told her “now this is sex.” 8 49. As soon as he finished, Famouri quickly dressed herself and left Silva’s house. 9 50. Famouri was in shock. She went home to shower and though she, on a deeper level, 10 11 knew she had been assaulted, she convinced herself that nothing was wrong. 51. As time went on, Famouri began telling her close friends, including her boyfriend 12 at the time, what had happened. Famouri did not want the attention associated with speaking out 13 though she agreed to go to a USC medical clinic for testing. A rape test was not administered as 14 she was informed that too much time had likely passed. Silva did not wear a condom during the 15 assault, though thankfully Famouri had no contracted any diseases or become pregnant. 16 17 18 52. Famouri eventually confided in her co-worker that Silva had raped her. Famouri’s co-worker convinced Famouri to report the incident to Ondrejko, the store manager. 53. On or about June 6, 2016, Plaintiff spoke with Ondrejko over the phone and 19 explained the entire story. Ondrejko began crying and said, “this is the call I needed to hear”. Upon 20 information and belief, Ondrejko had received prior reports that Silva had been sexually 21 inappropriate with his subordinates but apparently those reports had not risen to the level that 22 Ondrejko felt it appropriate to take further action. Ondrejko further stated that she did not know 23 what to do but promised to speak with Human Resources and determine a response. 24 54. On or about June 8, 2016, Famouri was contacted by Kelsey Whitsell (“Whitsell”), 25 a Human Resources representative for Lululemon. Whitsell similarly admitted to being unprepared 26 to handle Famouri’s claim. Rather than immediately undertake an investigation into Famouri’s 27 claims, Whitsell instead encouraged Plaintiff to resign from her position and put the company’s 28 - 10 COMPLAINT FOR DAMAGES 1 burden on Famouri, asking “if it is your intent to resign (or any other requests around your 2 employment) and how would you like for me to proceed in light of what you have reported?” A far 3 cry from Lululemon’s legal responsibility to prevent and investigate workplace harassment. 4 55. On June 10, 2016, Famouri finally decided to report Silva to the police. She was 5 directed to Hermosa Police Department where she spoke with detective Dean Garkow (“Garkow”). 6 Garkow asked Famouri if she was willing to conduct a pretext phone call. He explained that a 7 pretext phone call was a procedure where she would call Silva and attempt to get him to discuss 8 what had happened. Garkow would listen-in and record the conversation. 9 56. Famouri agreed to conduct a pretext phone call. She got a hold of Silva and the two 10 spoke for approximately an hour. During the call, Silva admitted that he heard Famouri say that she 11 did not want to have sex before going into the house, that he heard Famouri say no throughout and 12 to stop. Silva waved her off saying “you were just being sassy.” Eventually, Famouri asked “what 13 did I need to do to get you to stop,” Silva’s response: “roll over”. At that, Famouri ended the phone 14 call and Garkow felt they had a winnable case against Silva. 15 57. Famouri responded to Whitsell on or about June 13, 2016, stating that she would 16 like Lululemon to conduct an investigation and, citing her difficult emotional state, requested a 17 leave of absence. 18 58. 19 20 21 22 Whitsell ignored Plaintiff’s request for leave. Instead, Whitsell advised that Plaintiff could resign and be eligible for rehire in the future. 59. Up to this point, Plaintiff had not resigned from her position, she merely sought temporary leave to handle the stress of her rape and subsequent reporting thereof. 60. In the weeks that followed, Whitsell proceeded to harass Plaintiff by sending 23 additional e-mails requesting that Famouri send a resignation letter and complete Lululemon’s 24 online exit interview. At a certain point, Whitsell attempted to pay Famouri off by offering a 25 “transition package” for a few months’ worth of salary in exchange for Famouri’s voluntary 26 resignation. 27 28 - 11 COMPLAINT FOR DAMAGES 1 61. On information and belief, Whitsell conducted a perfunctory investigation into 2 Famouri’s claims that Silva had been inappropriate with several female subordinates. Upon 3 information and belief, during her investigation, Whitsell betrayed Famouri’s confidence by telling 4 several employees the details of Silva’s assault. The gossip spread throughout the store. Famouri 5 thereafter began receiving messages from Silva’s past victims explaining their own stories. 6 62. On information and belief, Silva voluntarily resigned from his position, though he 7 was never terminated. Today, Silva remains free and works as a personal trainer at Equinox, an 8 upscale gym. 9 63. Well before Famouri was assaulted, Lululemon’s Managers, Assistant Managers, 10 and Key Leaders had received complaints and/or witnessed Silva engaging in sexually 11 inappropriate behavior with his female subordinates including making vulgar sexual comments, 12 groping subordinates, propositioning subordinates, and pinning at least one women to a wall. On 13 one occasion, he lined up behind a female subordinate to ‘show her the proper way to fold.’ These 14 incidents were viewed and/or reported to Lululemon management though no disciplinary action 15 was ever taken. 16 64. Lululemon created the perfect environment for a sexual predator like Silva to 17 operate. Doing nothing to abate his inappropriate conduct while continuing to promote and foster 18 an environment and situations where it was considered ‘okay’ for 34-year-old Silva to use his 19 position of power to lure young female subordinates into compromising situations. 20 FIRST CAUSE OF ACTION 21 Sexual Assault and Battery 22 (Against All Defendants) 23 24 25 26 65. The allegations set forth in paragraphs 1 through 64 above are incorporated by reference as though fully set forth herein. 66. Defendant Silva engaged in a sexual assault and battery of Plaintiff with the intent to cause harmful and offensive contact with intimate parts of Plaintiff’s body. As described above, 27 28 - 12 COMPLAINT FOR DAMAGES 1 Silva engaged in harmful and offensive contact by sexually abusing, touching, kissing, and having 2 sexual intercourse with Plaintiff without her consent. 3 67. Defendant Lululemon ratified Silva’s unlawful conduct as described herein by: (1) 4 allowing Silva to continue working at the Lululemon Santa Monica store despite being aware that 5 Silva had raped Plaintiff and that Silva had a history of engaging in inappropriate sexual conduct 6 with female subordinates, (2) continuing to pay Silva despite knowledge of his unlawful conduct 7 described herein; and (3) failing to enforce employment procedures that would ensure that similar 8 conduct would not occur in the future. 9 68. Silva used Lululemon as a vehicle for his continued abuse of female employees, 10 including Plaintiff. With knowledge of Silva’s abuse, Lululemon actively condoned and ratified 11 Silva’s conduct and gave him unfettered power to continue to abuse and harass the women at 12 Lululemon. Lululemon consciously took no action against Silva and instead acted to conceal Silva’s 13 conduct. 14 69. As a direct and proximate result of the tortious, unlawful, and wrongful acts and 15 conduct of Lululemon, and their respective agents, servants, employees, and authorized 16 representatives, Plaintiff has suffered past and future special damages and past and future general 17 damages in an amount according to proof at trial. Plaintiff has been damaged physically, 18 emotionally, and financially, including but not limited to suffering from pain, anxiety, depression, 19 emotional distress, and ridicule, as well as loss of health, income, employment, and career benefits. 20 70. The unlawful acts and practices of Defendants were reckless and willful and caused 21 great harm to Plaintiff. Given such intentional, vexatious, fraudulent, oppressive, despicable, and 22 malicious conduct, and the conscious disregard of Plaintiff’s health, rights, and well-being, Plaintiff 23 is entitled to recover exemplary damages sufficient to punish Defendants and to serve as an example 24 to deter Defendants from similar conduct in the future. 25 SECOND CAUSE OF ACTION 26 Gender Violence – Civil Code § 52.4 27 (Against All Defendants) 28 - 13 COMPLAINT FOR DAMAGES 1 2 3 4 5 6 7 8 9 10 11 12 71. The allegations set forth in paragraphs 1 through 70 above are incorporated by reference as though fully set forth herein. 72. California Civil Code section 52.4 states that gender violence is “a form of sex discrimination” and includes any of the following: (1) One or more acts that would constitute a criminal offense under state law that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, committed at least in part based on the gender of the victim, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction. [or] (2) A physical intrusion or physical invasion of a sexual nature under coercive conditions, whether or not those acts have resulted in criminal complaints, charges, prosecution, or conviction. 73. At all times herein mentioned, an employment, business, service and/or professional relationship existed between Plaintiff and Defendants. 74. Defendants wrongfully deprived Plaintiff of her right to be free from any use of 13 physical force, violence, or intimidation by threat of violence or use of physical force, committed 14 against her person because of her sex and/or gender in violation of California Civil Code section 15 52.4. Plaintiff is informed and believes, and thereon alleges, that Plaintiff’s gender was a motivating 16 factor in Defendants’ unlawful treatment of her and that Defendants’ unlawful acts were committed 17 at least in part based on Plaintiff's gender. 18 75. Lululemon ratified Silva’s unlawful conduct as described herein by: (1) allowing 19 Silva to continue working at the Lululemon Santa Monica store despite being aware that Silva had 20 raped Plaintiff and that Silva had a history of engaging in inappropriate sexual conduct with female 21 subordinates, (2) continuing to pay Silva despite knowledge of his unlawful conduct described 22 herein; and (3) failing to enforce employment procedures that would ensure that similar conduct 23 would not occur in the future. 24 76. Silva used Lululemon as a vehicle for his continued abuse of female employees, 25 including Plaintiff. With knowledge of Silva’s abuse, Lululemon actively condoned and ratified 26 Silva’s conduct and gave him unfettered power to continue to abuse and harass the women at 27 28 - 14 COMPLAINT FOR DAMAGES 1 Lululemon. Lululemon consciously took no action against Silva and instead, acted to conceal 2 Silva’s conduct. 3 77. As a direct and proximate result of the tortious, unlawful, and wrongful acts and 4 conduct of Lululemon, and their respective agents, servants, employees, and authorized 5 representatives, Plaintiff has suffered past and future special damages and past and future general 6 damages in an amount according to proof at trial. Plaintiff has been damaged physically, 7 emotionally, and financially, including but not limited to suffering from pain, anxiety, depression, 8 emotional distress, and ridicule, as well as loss of health, income, employment, and career benefits. 9 78. The unlawful acts and practices of Defendants were reckless and willful and caused 10 great harm to Plaintiff. Given such intentional, vexatious, fraudulent, oppressive, despicable, and 11 malicious conduct, and the conscious disregard of Plaintiff’s health, rights, and well-being, Plaintiff 12 is entitled to recover exemplary damages sufficient to punish Defendants and to serve as an example 13 to deter Defendants from similar conduct in the future. 14 15 79. Plaintiff is entitled to an award of statutory fees. and attorneys' fees against Defendants pursuant to California Civil Code section 52.4(a). 16 THIRD CAUSE OF ACTION 17 Sexual Harassment in Violation of FEHA 18 (Against All Defendants) 19 20 21 80. The allegations set forth in paragraphs 1 through 79 above are incorporated by reference as though fully set forth herein. 81. At all times herein mentioned, California Government Code § 12940 et seq., was in 22 full force and effect and were binding on Lululemon, as Lululemon regularly employed five (5) or 23 more persons. The conduct of the Defendants, as herein described above, constitutes harassment in 24 violation of California Government Code§ 12940(j). The harassment complained of was based on 25 sex and/or sexual orientation and the harassment complained of was sufficiently severe and/or 26 pervasive so as to alter the conditions of employment and create an abusive working environment. 27 28 82. At all times mentioned herein, Plaintiff was an employee of Lululemon. - 15 COMPLAINT FOR DAMAGES 1 2 83. advances to Plaintiff. 3 4 During the course of her employment with Lululemon, Silva made unwanted sexual 84. Further, Plaintiff was subjected to unwanted verbal and physical conduct of a sexual nature throughout the duration of her employment by both supervisors and fellow employees. 5 85. Lululemon ratified and condoned said conduct in that supervisors and/or mangers 6 witnessed said verbal and physical abuse and failed to take immediate and appropriate corrective 7 action. 8 86. As a direct and proximate result of the tortious, unlawful, and wrongful acts and 9 conduct of Lululemon, and their respective agents, servants, employees, and authorized 10 representatives, Plaintiff has suffered past and future special damages and past and future general 11 damages in an amount according to proof at trial. Plaintiff has been damaged physically, 12 emotionally, and financially, including but not limited to suffering from pain, anxiety, depression, 13 emotional distress, and ridicule, as well as loss of health, income, employment, and career benefits. 14 87. Lululemon had policies and procedures in place that specifically prohibited and 15 required their managers and supervisors to prevent harassment and abuse. The perpetuators of 16 harassment were either managers or supervisors themselves or were aware that said harassment 17 was occurring. Said managers and supervisors were aware of Lululemon’s polices requiring 18 managers and supervisors to prevent and investigate harassment and abuse against and upon its 19 employees. 20 88. Notwithstanding, Lululemon’s managers and supervisors chose to consciously and 21 willfully ignore said policies and procedures and, therefore, their outrageous conduct was 22 fraudulent, malicious, oppressive and was done in wanton disregard for the rights of Plaintiff and 23 the rights and duties owed by each Defendant to Plaintiff. Each Defendant aided, abetted, 24 participated in, authorized, ratified and/or conspired to engage in the wrongful conduct alleged 25 above. Plaintiff should, therefore, be awarded exemplary and punitive damages against each 26 Defendant in an amount to be established that is appropriate to punish each Defendant and deter 27 others from engaging in such conduct. 28 - 16 COMPLAINT FOR DAMAGES 1 89. Within one year of the date of the conduct alleged herein, Plaintiff filed charges of 2 sexual harassment with the California Department of Fair Employment and Housing (“DFEH”) and 3 received a right to sue letter and thus has satisfied her administrative prerequisites. A true and 4 correct copy of the DFEH right to sue letter is attached hereto as Exhibit 1. 5 6 FOURTH CAUSE OF ACTION 7 Hostile Work Environment in Violation of FEHA 8 (Against Lululemon) 9 10 90. reference as though fully set forth herein. 11 12 91. 92. 93. During the course of her employment with Lululemon, Silva made unwanted sexual advances to Plaintiff. 17 18 Plaintiff was subjected to unwanted verbal and physical conduct of a sexual nature throughout the duration of her employment by both supervisors and fellow employees. 15 16 Plaintiff was subjected to a hostile work environment as both she and her co-workers were subjected to harassment at Lululemon based on their gender. 13 14 The allegations set forth in paragraphs 1 through 89 above are incorporated by 94. Further, Plaintiff was subjected to unwanted verbal and physical conduct of a sexual nature throughout the duration of her employment by both supervisors and fellow employees. 19 95. The abusive and harassing conduct was severe and/or pervasive and created an 20 intimidating, hostile, and offensive work environment and was unwanted, unwelcome, and 21 uninvited and violated Government Code section 12940 et seq. 22 96. Lululemon ratified and condoned said conduct in that supervisors and/or mangers 23 witnessed said verbal and physical conduct and failed to take immediate and appropriate corrective 24 action. 25 97. As a direct and proximate result of the tortious, unlawful, and wrongful acts and 26 conduct of Lululemon, and their respective agents, servants, employees, and authorized 27 representatives, Plaintiff has suffered past and future special damages and past and future general 28 - 17 COMPLAINT FOR DAMAGES 1 damages in an amount according to proof at trial. Plaintiff has been damaged physically, 2 emotionally, and financially, including but not limited to suffering from pain, anxiety, depression, 3 emotional distress, and ridicule, as well as loss of health, income, employment, and career benefits. 4 98. Lululemon had policies and procedures in place that specifically prohibited and 5 required their managers and supervisors to prevent harassment and abuse. The perpetuators of 6 harassment were either managers or supervisors themselves or were aware that said harassment 7 was occurring. Said managers and supervisors were aware of Lululemon’s polices requiring 8 managers and supervisors to prevent and investigate harassment and abuse against and upon its 9 employees. 10 99. Notwithstanding, Lululemon’s managers and supervisors chose to consciously and 11 willfully ignore said policies and procedures and, therefore, their outrageous conduct was 12 fraudulent, malicious, oppressive and was done in wanton disregard for the rights of Plaintiff and 13 the rights and duties owed by each Defendant to Plaintiff. Each Defendant aided, abetted, 14 participated in, authorized, ratified and/or conspired to engage in the wrongful conduct alleged 15 above. Plaintiff should, therefore, be awarded exemplary and punitive damages against each 16 Defendant in an amount to be established that is appropriate to punish each Defendant and deter 17 others from engaging in such conduct. 18 100. Within one year of the date of the conduct alleged herein, Plaintiff filed charges of 19 hostile work environment with the DFEH and received a right to sue letter and thus has satisfied 20 her administrative prerequisites. 21 FIFTH CAUSE OF ACTION 22 Failure to Take All Reasonable Steps to Prevent Sexual Harassment in Violation of FEHA 23 (Against Lululemon) 24 25 26 27 28 101. The allegations set forth in paragraphs 1 through 100 above are incorporated by reference as though fully set forth herein. 102. At all times mentioned herein, California Government Code Sections 12940, et seq., including but not limited to Sections 12940 (j) and (k), were in full force and effect and were - 18 COMPLAINT FOR DAMAGES 1 binding upon Lululemon. These sections impose on an employer a duty to take immediate and 2 appropriate corrective action to end harassment and take all reasonable steps necessary to prevent 3 harassment from occurring. 4 103. Lululemon received multiple complaints and warnings from Lululemon employees 5 about the sexually harassing behavior of Silva but failed to investigate the claims that were being 6 made, failed to take any corrective disciplinary actions, and failed to take all reasonable steps to 7 prevent him from harassing Plaintiff in response to complaints and warnings that were made about 8 him. 9 104. Further, Lululemon was well aware of the improper harassing conduct of Plaintiff’s 10 supervisors and co-workers as Plaintiff’s supervisors either engaged in the discriminatory behavior 11 or ratified said behavior by failing to take immediate corrective and disciplinary actions. 12 105. Lululemon failed to take immediate and appropriate corrective action to end the 13 harassment. Defendants also failed to take all reasonable steps necessary to prevent the harassment 14 from occurring. 15 106. In failing and/or refusing to take immediate and appropriate corrective action to end 16 the harassment and in failing and/or refusing to take any or all reasonable steps necessary to prevent 17 harassment from occurring, Defendants violated California Government Code sections 12940 (j) 18 and (k), causing Plaintiff to suffer damages as set forth above. 19 107. As a direct and proximate result of the tortious, unlawful, and wrongful acts and 20 conduct of Lululemon, and their respective agents, servants, employees, and authorized 21 representatives, Plaintiff has suffered past and future special damages and past and future general 22 damages in an amount according to proof at trial. Plaintiff has been damaged physically, 23 emotionally, and financially, including but not limited to suffering from pain, anxiety, depression, 24 emotional distress, and ridicule, as well as loss of health, income, employment, and career benefits. 25 26 108. As a proximate result of the wrongful acts of the defendants, Plaintiff has been forced to hire attorneys to prosecute his claims herein and has incurred and is expected to continue 27 28 - 19 COMPLAINT FOR DAMAGES 1 to incur attorney's fees and costs in connection therewith. Plaintiff is entitled to recover attorney's 2 fees and costs under California Government Code section 12965(b). 3 109. Lululemon had policies and procedures in place that specifically prohibited and 4 required their managers and supervisors to prevent harassment and abuse. The perpetuators of 5 harassment were either managers or supervisors themselves or were aware that said harassment 6 was occurring. Said managers and supervisors were aware of Lululemon’s polices requiring 7 managers and supervisors to prevent and investigate harassment and abuse against and upon its 8 employees. 9 110. Notwithstanding, Lululemon’s managers and supervisors chose to consciously and 10 willfully ignore said policies and procedures and, therefore, their outrageous conduct was 11 fraudulent, malicious, oppressive and was done in wanton disregard for the rights of Plaintiff and 12 the rights and duties owed by each Defendant to Plaintiff. Each Defendant aided, abetted, 13 participated in, authorized, ratified and/or conspired to engage in the wrongful conduct alleged 14 above. Plaintiff should, therefore, be awarded exemplary and punitive damages against each 15 Defendant in an amount to be established that is appropriate to punish each Defendant and deter 16 others from engaging in such conduct. 17 111. Within one year of the date of the conduct alleged herein, Plaintiff filed charges of 18 failing to take all reasonable steps to prevent sexual harassment with the DFEH and received a right 19 to sue letter and thus has satisfied her administrative prerequisites. 20 SIXTH CAUSE OF ACTION 21 Retaliation in Violation of FEHA 22 (Against Lululemon) 23 24 25 26 112. The allegations set forth in paragraphs 1 through 111 above are incorporated by reference as though fully set forth herein. 113. At all times herein mentioned, California Government Code sections 12900 et seq., were in full force and effect and were fully binding upon Defendant. Specifically, section 12940(h) 27 28 - 20 COMPLAINT FOR DAMAGES 1 makes it an unlawful employment practice for an employer to discriminate against any person 2 because the person has opposed any practices forbidden under this part. 3 114. Plaintiff reported to Lululemon that she had been sexually assaulted by Silva and 4 requested that it conduct an investigation. In response Lululemon forced Plaintiff to resign from 5 her job and denied her leave. Lululemon repeatedly requested that Plaintiff provide a letter of 6 resignation and asked her to complete Lululemon’s online exit interview. Lululemon made these 7 repeated requests despite Plaintiff merely requesting to be placed on leave while she dealt with the 8 emotional impact of having been raped by her supervisor. Thereafter Lululemon told several 9 employees about Famouri’s claim thus constructively keeping her from working at the store. 10 115. As a direct and proximate result of the tortious, unlawful, and wrongful acts and 11 conduct of Lululemon, and their respective agents, servants, employees, and authorized 12 representatives, Plaintiff has suffered past and future special damages and past and future general 13 damages in an amount according to proof at trial. Plaintiff has been damaged physically, 14 emotionally, and financially, including but not limited to suffering from pain, anxiety, depression, 15 emotional distress, and ridicule, as well as loss of health, income, employment, and career benefits. 16 116. Lululemon had policies and procedures in place advising employees to report sexual 17 harassment, promising that such reports would be handled in a confidential manner, and providing 18 for unpaid leave to sexual assault victims. Whitsell and Ondrejko were well aware of Lululemon’s 19 polices. 20 117. Notwithstanding, Whitsell and Ondrejko chose to consciously and willfully ignore 21 said policies and procedures and, therefore, their outrageous conduct was fraudulent, malicious, 22 oppressive and was done in wanton disregard for the rights of Plaintiff and the rights and duties 23 owed by each Defendant to Plaintiff. Each Defendant aided, abetted, participated in, authorized, 24 ratified and/or conspired to engage in the wrongful conduct alleged above. Plaintiff should, 25 therefore, be awarded exemplary and punitive damages against each Defendant in an amount to be 26 established that is appropriate to punish each Defendant and deter others from engaging in such 27 conduct. 28 - 21 COMPLAINT FOR DAMAGES 1 118. Within one year of the date of the conduct alleged herein, Plaintiff filed charges of 2 retaliation with the DFEH and received a right to sue letter and thus has satisfied her administrative 3 prerequisites. 4 SEVENTH CAUSE OF ACTION 5 Negligent Retention and Supervision 6 (Against Lululemon) 7 8 9 119. The allegations set forth in paragraphs 1 through 118 above are incorporated by reference as though fully set forth herein. 120. Lululemon had a duty to retain employees who were fit and competent, to supervise 10 their employees, and to implement measures to protect its employees from the predictable and 11 foreseeable risks posed by its supervisors. 12 121. Lululemon knew, or in the exercise of reasonable diligence should have known, that 13 Silva was incompetent and unfit to perform the duties for which he was employed, and that undue 14 risks to persons such as Famouri would result by way of Silva’s abuse of the leadership privileges 15 and authority he was granted. 16 122. Plaintiff is informed and believes, and on that basis alleges, that at no time alleged 17 herein did Lululemon have in place and/or implement a system or procedure to reasonably 18 investigate, supervise, and/or monitor supervisors, including Silva, to prevent sexual harassment 19 nor did they implement a system or procedure to oversee or monitor inappropriate conduct toward 20 Lululemon employees. 21 123. Plaintiff is informed and believes and on that basis alleges that Lululemon was put 22 on notice, and should have known that Silva had previously engaged in sexually inappropriate 23 conduct with female subordinates and that it was, or should have been, foreseeable that he was 24 engaging in, or would engage in the sexual assault/harassment perpetrated on Famouri, and others, 25 under the cloak of his authority, confidence, and trust, bestowed upon him through Lululemon. 26 27 28 124. Lululemon was placed on actual and/or constructive notice that Silva had engaged in dangerous and inappropriate conduct during his employment with Lululemon. Plaintiff is - 22 COMPLAINT FOR DAMAGES 1 informed, and thereon alleges, that other employees informed Lululemon of inappropriate conduct 2 committed by Silva. Even though Lululemon knew or should have known of these activities by 3 Silva, Plaintiff is informed that Lululemon did nothing to investigate, supervise, or monitor Silva 4 to ensure the safety of its employees and in fact promoted Silva. Lululemon’s conduct was a breach 5 of their duty to Famouri. 6 125. Lululemon’s failure to train, supervise, and terminate Silva was the direct and 7 proximate cause of Famouri’s injuries. Plaintiff has suffered past and future special damages and 8 past and future general damages in an amount according to proof at trial. Plaintiff has been damaged 9 physically, emotionally, and financially, including but not limited to suffering from pain, anxiety, 10 depression, emotional distress, and ridicule, as well as loss of health; income, employment, and 11 career benefits. 12 EIGHTH CAUSE OF ACTION 13 Violation of California’s Unfair Business Laws - Cal. Bus and Prof. code §§ 17200 et seq. 14 (Against Lululemon) 15 16 17 126. The allegations set forth in paragraphs 1 through 125 above are incorporated by reference as though fully set forth herein. 127. California Business and Professions Code section 17200 provides that unfair 18 competition shall mean and include "all unlawful, unfair or fraudulent business act or practices and 19 unfair, deceptive, untrue or misleading advertising.” 20 128. Plaintiff is informed and believes and thereon alleges that Lululemon has engaged 21 in unfair competition in violation of California Business and Professions Code sections 17200 et 22 seq. by maintaining a workplace rife with, abuse, harassment, and retaliation on the basis of sex. 23 24 25 129. Lululemon falls within the definition of “person” as set forth in California Business and Professions Code sections 17203 and 17506. 130. Defendant Lululemon ratified Silva’s unlawful conduct as described herein by: (1) 26 allowing Silva to continue working at the Lululemon Santa Monica store despite being aware that 27 Silva had raped Plaintiff and that Silva had a history of engaging in inappropriate sexual conduct 28 - 23 COMPLAINT FOR DAMAGES 1 with female subordinates, (2) continuing to pay Silva despite knowledge of his unlawful conduct 2 described herein; and (3) failing to enforce employment procedures that would ensure that similar 3 conduct would not occur in the future. 4 131. Silva used Lululemon as a vehicle for his continued abuse of female employees, 5 including Plaintiff. With knowledge of Silva’s abuse, Lululemon actively condoned and ratified 6 Silva’s conduct and gave him unfettered power to continue to abuse and harass the women at 7 Lululemon. Lululemon consciously took no action against Silva and instead, acted to conceal 8 Silva’s conduct. 9 132. Such business practices are also a violation of California public policy, including 10 but not limited to: California Constitution, article I, section 8; Government Code sections 12900 et 11 seq., and Civil Code sections 1770 et seq. The maintenance of such unfair business practices allows 12 Lululemon to maintain an unfair advantage over other companies which comply with California 13 and federal law and the public policy of the state of California. 14 133. The unlawful, unfair and fraudulent business practices of Lululemon described 15 above present a continuing threat to members of the public in that Lululemon has engaged and will 16 continue to engage in the conduct described above, and members of the public are likely to be 17 deceived when they pursue or gain employment with Defendants. 18 134. As a direct and proximate result of the tortious, unlawful, and wrongful acts and 19 conduct of Lululemon, and their respective agents, servants, employees, and authorized 20 representatives, Plaintiff has suffered past and future special damages and past and future general 21 damages in an amount according to proof at trial. Plaintiff has been damaged physically, 22 emotionally, and financially, including but not limited to suffering from pain, anxiety, depression, 23 emotional distress, and ridicule, as well as loss of health, income, employment, and career benefits. 24 135. Pursuant to California Business and Professions Code section 17203, Plaintiff seeks 25 injunctive and declaratory relief as follows: (a) finding that Defendants have violated the provisions 26 of California Business and Professions-Code sections 17200 et seq.; and (b) enjoining Lululemon 27 and their respective successors, agents, servants, officers, directors, employees, and all other 28 - 24 COMPLAINT FOR DAMAGES 1 persons acting in concert with them, directly or indirectly, from engaging in any unlawful practice, 2 policy, usage, and/or custom set forth hereinabove, which violates, California Business and 3 Professions Code sections 17200 et seq. 4 NINTH CAUSE OF ACTION 5 Intentional Infliction of Emotional Distress 6 (Against All Defendants) 7 8 9 136. The allegations set forth in paragraphs 1 through 135 above are incorporated by reference as though fully set forth herein. 137. Defendants’ conduct, as described above, was outrageous, extreme, intentional and 10 malicious and done for the purpose of causing, or with the substantial certainty that it would cause 11 Plaintiff to suffer humiliation, mental anguish, and emotional and physical distress. 12 138. A reasonable person would not expect or tolerate the sexual harassment and battery 13 of Famouri by Defendants and their respective agents, servants, employees, and authorized 14 representatives. 15 139. By placing and keeping Silva in a position of authority over Famouri despite having 16 knowledge of his history of sexual misconduct, Lululemon engaged in extreme and outrageous 17 conduct against Plaintiff. 18 140. As a direct and proximate result of the tortious, unlawful, and wrongful acts and 19 conduct of Lululemon, and their respective agents, servants, employees, and authorized 20 representatives, Plaintiff has suffered past and future special damages and past and future general 21 damages in an amount according to proof at trial. Plaintiff has been damaged physically, 22 emotionally, and financially, including but not limited to suffering from pain, anxiety, depression, 23 emotional distress, and ridicule, as well as loss of health, income, employment, and career benefits. 24 141. In committing the acts described herein, Defendants acted with malice, oppression, 25 and fraud. The Defendants each aided, abetted, participated in, authorized, ratified, and/or 26 conspired to engage in the wrongful conduct alleged above. Plaintiff should, therefore, be awarded 27 28 - 25 COMPLAINT FOR DAMAGES 1 exemplary and punitive damages against each Defendant in an amount to be established that is 2 appropriate to punish each Defendant and deter others from engaging in such conduct. 3 TENTH CAUSE OF ACTION 4 Sexual Harassment – Civil Code §51.9 5 (Against All Defendants) 6 7 8 9 10 11 142. The allegations set forth in paragraphs 1 through 141 above are incorporated by reference as though fully set forth herein. 143. At all relevant times mentioned in this complaint, Civil Code section 51.9 was in full force and effect and was binding on defendants, and makes unlawful sexual harassment in the context of a business, service or professional relationship. 144. At all relevant times herein, Plaintiff, on the one hand, and Defendants, on the other 12 hand, were in a business, service, or professional relationship, by virtue of Plaintiff’s employment. 13 Silva was a managerial employee for Lululemon. 14 145. Defendants and their respective agents, servants, employees, and authorized 15 representatives, made sexual advances, solicitations, sexual requests, demands for sexual 16 compliance by the Plaintiff, or engaged in other verbal, visual, or physical conduct of a sexual 17 nature or of a hostile nature based on gender that were unwelcome and pervasive or severe. 18 19 20 146. Due to Plaintiff’s employment relationship with Lululemon there was an inability by Plaintiff to easily terminate the relationship with Silva. 147. As a direct and proximate result of the sexual harassment and misconduct of 21 Defendants and their respective agents, servants, employees, and authorized representatives, 22 Plaintiff has suffered or will suffer economic loss or disadvantage or personal injury, including, but 23 not limited to, emotional distress or the violation of a statutory or constitutional right. 24 148. In failing to protect Plaintiff from the sexual misconduct of Defendants and, instead, 25 refusing to do anything to protect Plaintiff from the sexual harassment and abuse to which she was 26 subjected by virtue of her employment relationship, Defendants aided, incited and/or conspired in 27 28 - 26 COMPLAINT FOR DAMAGES 1 Defendants’ violation of Civil Code section 51.9, which itself is actionable as a violation of Civil 2 Code §51.9. 3 149. The foregoing conduct of Defendants individually, or by and through their 4 managing agents, was intended by the Defendants to cause injury to the Plaintiff or was despicable 5 conduct carried on by the Defendants with a willful and conscious disregard of the rights of Plaintiff 6 or subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff’s civil rights, 7 such as to constitute malice, oppression, or fraud. 8 150. As a direct and proximate result of Defendants' above-described conduct, Plaintiff 9 has suffered and continues to suffer great pain of mind and body, shock, emotional distress, physical 10 manifestations of emotional distress, embarrassment, loss of self-esteem, disgrace, humiliations, 11 and loss of enjoyment of life; has suffered and continues to suffer and was prevented and will 12 continue to be prevented from performing daily activities and obtaining the full enjoyment of life; 13 will sustain loss of earnings and earning capacity, and/or has incurred and will continue to incur 14 expenses for medical and psychological treatment, therapy, and counseling. 15 151. In committing the acts described herein, Defendants, acted with malice, oppression 16 and fraud. Each also Defendant aided, abetted, participated in, authorized, ratified and/or conspired 17 to engage in the wrongful conduct alleged above. Plaintiff should, therefore, be awarded exemplary 18 and punitive damages against each Defendant in an amount to be established that is appropriate to 19 punish each Defendant and deter others from engaging in such conduct. 20 152. In addition to and/or in lieu of Plaintiff’s election, Plaintiff is entitled to receive and 21 hereby seeks statutory damages pursuant to Civil Code section 52(b) as well as a civil penalty 22 pursuant to Civil Code section 52(b)(2) of $25,000. 23 24 153. Pursuant to Civil Code section 52(b)(3), Plaintiff requests an award of attorneys’ fees in prosecuting this action. 25 26 27 28 - 27 COMPLAINT FOR DAMAGES 1 2 3 PRAYER FOR RELIEF WHEREFORE, Plaintiff prays for judgment and relief against Lululemon and Silva, jointly and severally, as follows: 4 1. For general damages according to proof; 5 2. For special damages according to proof; 6 3. For punitive damages according to proof; 7 4. For statutory damages according to proof; 8 5. For attorneys’ fees costs of this suit herein; 9 6. For pre-judgment and post-judgment interest as provided by law; and 10 7. For all other relief that this Court deems just and proper. 11 12 13 Dated: December 19, 2017 FERNALD LAW GROUP APC ADAM P. ZAFFOS BRANDON C. FERNALD PAUL W. SANDE 14 15 By: Brandon C. Fernald 16 17 Attorneys for Plaintiff SHAYLA FAMOURI 18 19 20 21 22 23 24 25 26 27 28 - 28 COMPLAINT FOR DAMAGES 1 DEMAND FOR JURY TRIAL 2 3 Plaintiff Shayla Famouri does hereby assert her right to and demands a jury trial in this matter. 4 5 6 Dated: December 19, 2017 FERNALD LAW GROUP APC ADAM P. ZAFFOS BRANDON C. FERNALD PAUL W. SANDE 7 8 By: Brandon C. Fernald 9 10 Attorneys for Plaintiff SHAYLA FAMOURI 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 29 COMPLAINT FOR DAMAGES