This case was last updated from San Mateo County Superior Courts on 07/20/2018 at 02:07:13 (UTC).

NADIA NOORZAI VS GENENTECH INC

Case Summary

On 08/16/2012 NADIA NOORZAI filed a Labor - Other Labor lawsuit against GENENTECH INC. This case was filed in San Mateo County Superior Courts, Southern Branch Hall Of Justice And Records located in San Mateo, California. The Judges overseeing this case are Bergeron, Joseph E, Buchwald, Gerald J and Buchwald, Gerald J.. The case status is Disposed - Dismissed.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *****6074

  • Filing Date:

    08/16/2012

  • Case Status:

    Disposed - Dismissed

  • Case Type:

    Labor - Other Labor

  • Court:

    San Mateo County Superior Courts

  • Courthouse:

    Southern Branch Hall Of Justice And Records

  • County, State:

    San Mateo, California

Judge Details

Judges

Bergeron, Joseph E

Buchwald, Gerald J

Buchwald, Gerald J.

 

Party Details

Plaintiffs

NADIA NOORZAI

NOORZAI, NADIA

Defendant

GENENTECH INC

Attorney/Law Firm Details

Plaintiff Attorney

ANGEL, ARTHUR R

Defendant Attorneys

HERMLE, LYNNE C.

SEEKAO, SHANNON BROOKE

 

Court Documents

Conversion Action.

COURT DOCUMENT Comment COMMI: LETTER REQUESTING TO TAKE THE DEMURRER HEARING OFF CALENDAR RECEIVED.

Conversion Action.

STIPULATION (2) Comment SO2: STIPULATION AND ORDER PROTECTIVE ORDER RE CONFIDENTIAL INFORMATION SIGNED BY GERALD J. BUCHWALD ON 08/19/13.

Conversion Action.

COMPLAINT (2) Comment ACS: (U) 1ST AMENDED COMPLAINT OF NOORZAI FILED (AMENDED COMPLAINT)

Conversion Hearing.

CMC NOTICE (2) Comment CASE MANAGEMENT CONFERENCE

Proof of Service.

PROOF OF SERVICE (4) Comment POSI: PROOF OF SERVICE OF REPLY MEMO; REQUEST FOR JUDICIAL NOTICE SERVED ON ARTHUR R. ANGEL BY UPS WITH A SERVICE DATE OF 04/24/13.

Proof of Service by MAIL of.

PROOF OF SERVICE (2) Comment PSMN: PROOF OF SERVICE BY MAIL OF NOTICE OF FILING NOTICE OF REMOVAL SERVED ON NADIA NOORZAI FILED. DATE OF MAILING 09/20/12.

Proof of Service of Complaint/Petition.

PROOF OF SERVICE Comment PSBC: PROOF OF PERSONAL SERVICE OF SUMMONS AND COMPLAINT OF NOORZAI SERVED ON GENENTECH INC BY SERVING BECKY DEGEORGE AGENT WITH SERVICE DATE OF 08/22/12

Summons Issued / Filed.

SUMMONS Comment S30IF: 30 DAY SUMMONS ISSUED AND FILED.

Complaint.

COMPLAINT Comment COM: (S) COMPLAINT FILED

Request for Dismissal of - WITH prejudice in its entirety.

DISMISSAL Comment REQDEA: REQUEST FOR DISMISSAL OF ENTIRE ACTION WITH PREJUDICE FILED AND ENTERED.

Notice.

NOTICE (2) Comment N: NOTICE OF INTENT TO APPEAR BY TELEPHONE FILED BY NADIA NOORZAI.

Document.

FILING (2) Comment FILED: REPLY MEMORANDUM IN SUPPORT OF DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT FILED.

Opposition.

OPPOSITION Comment OPP: OPPOSITION TO DEMURRER TO FIRST AMENDED COMPLAINT FILED BY NADIA NOORZAI

Memorandum of Points & Authorities Filed.

MEMO Comment MPA: MEMORANDUM OF POINTS AND AUTHORITIES FILED BY GENENTECH INC IN SUPPORT OF DEMURRER BY GENENTECH INC.

Conversion Action.

DEMURRER Comment DEM: (S) DEMURRER TO COMPLAINT OF NOORZAI FILED BY GENENTECH INC REPRESENTED BY SHANNON BROOKE SEEKAO

Document.

FILING Comment FILED: ORDER REMANDING CASE TO SAN MATEO SUPERIOR COURT SIGNED BY DISTRICT COURT JUDGE ON 12/3/12 FILED.

Notice.

NOTICE Comment N: NOTICE OF FILING NOTICE OF REMOVAL FILED BY GENENTECH INC.

Civil Case Cover Sheet.

COVERSHEET Comment CCS: CIVIL CASE COVERSHEET RECEIVED

12 More Documents Available

 

Docket Entries

  • 10/16/2013
  • Disposition: Judgment; Judgment Type; Dismissal - Other Dismissal; Party; Name: GENENTECH INC; Comment: 0001 COMPLAINT; Party; Name: NOORZAI NADIA; Comment: 0001 COMPLAINT.

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  • 12/04/2013
  • Conversion Hearing. Additional Info: Comment CASE MANAGEMENT CONFERENCE

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  • 12/04/2013
  • Case Management Conference. Additional Info: Hearing Time 9:00 AM Cancel Reason Vacated Comment Dept: 7 CASE MANAGEMENT CONFERENCE

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  • 10/16/2013
  • View Court Documents
  • Request for Dismissal of - WITH prejudice in its entirety. Additional Info: DISMISSAL Comment REQDEA: REQUEST FOR DISMISSAL OF ENTIRE ACTION WITH PREJUDICE FILED AND ENTERED.

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  • 10/04/2013
  • Conversion Minute. Additional Info: Comment HC: HEARING CONTINUED TO 12/04/13 AT 09:00 IN DEPARTMENT 7.

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  • 10/04/2013
  • Conversion Hearing. Additional Info: Comment CASE MANAGEMENT CONFERENCE

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  • 10/04/2013
  • Case Management Conference. Additional Info: Original Type Case Management Conference Hearing Time 9:00 AM Result Conversion Continuance Comment Dept: 7 CASE MANAGEMENT CONFERENCE

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  • 09/24/2013
  • Conversion Action. Additional Info: Comment COMM: FAXED REQUEST TO CONTINUE THE 10/4/13 CMC RECEIVED.

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  • 09/06/2013
  • Conversion Minute. Additional Info: Comment COM1: - 4 -

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  • 09/06/2013
  • Conversion Minute. Additional Info: Comment LINE: =====================================

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76 More Docket Entries
  • 01/14/2013
  • Financial info for GENENTECH INC : Case Payment Receipt # 201301140752 GENENTECH INC $60.00

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  • 01/14/2013
  • Financial info for GENENTECH INC : Transaction Assessment $60.00

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  • 09/21/2012
  • Financial info for GENENTECH INC : Case Payment Receipt # 201209210039 GENENTECH INC $435.00

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  • 09/21/2012
  • Financial info for GENENTECH INC : Transaction Assessment $435.00

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  • 09/21/2012
  • Financial: GENENTECH INC; Total Financial Assessment $585.00; Total Payments and Credits $585.00

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  • 08/19/2013
  • Financial info for NOORZAI, NADIA : Case Payment Receipt # 201308190753 NOORZAI, NADIA $60.00

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  • 08/19/2013
  • Financial info for NOORZAI, NADIA : Transaction Assessment $60.00

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  • 08/16/2012
  • Financial info for NOORZAI, NADIA : Case Payment Receipt # 201208160146 NOORZAI, NADIA $435.00

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  • 08/16/2012
  • Financial info for NOORZAI, NADIA : Transaction Assessment $435.00

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  • 08/16/2012
  • Financial: NOORZAI, NADIA; Total Financial Assessment $495.00; Total Payments and Credits $495.00

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Complaint Information

IGINAL

LYNNE C.-HERMLE (STATE BAR NO. 99779)

SHANNON B. SEEKAO (STATE BAR NO. 267536)ORRICK, HERRINGTON & SUTCLIFFE LLP SAN MATEO COUNTY 1000 Marsh Road

Menlo Park, California 94025 Telephone: 650-614-7400 Facsimile: 650-614-7401 Ichermle@orrick.com sseekao@orrick.com

Attorneys for Defendant Genentech, Inc.

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO

NADIA NOORZAI, Case No. CIV 516074

Plaintiff, REPLY MEMORANDUM OF POINTS

AND AUTHORITIES IN SUPPORT OF

V. DEMURRER TO PLAINTIFF’S FIRST

AMENDED COMPLAINT

GENENTECH, INC. AND DOES 1-10, Date: July 12, 2013 Defendants. Time: 9:00 a.m. Dept. Law & Motion

Trial Date: None First Amended Complaint Filed: December 3, 2012

OHSUSA:753544423.1

L INTRODUCTION

Plaintiff fails to meaningfully oppose Genentech’s Demurrer in any respect.

First, Plaintiff does not refute that claims under the Fair Employment and Housing Act (“FEHA”) should be pled separately to facilitate their adjudication. Moreover, Plaintiff admits that she combines separate FEHA claims that “could have” been alleged as separate causes of action.

Second, Plaintiff argues that she “plainly” alleged that her discrimination claims are based on her religion and national origin even though she never expressly alleges this once in her complaint. It is improper for Plaintiff to expect the Court or Genentech to comb through her general factual allegations and make assfimptions as to which protected classes support her FEHA claims.

Third, Plaintiff merely regurgitates her insufficient allegations in support of her breach of contract and covenant claims, ignoring the legal authorities that require dismissal of those claims. The single case cited by Plaintiff as support for upholding her contract claim is inapposite.

Fourth, Plaintiff does not adequately explain why her improper chain pleading is appropriate, and as Genentech demonstrated, it creates unnecessary confusion and complications in the adjudication of this case.

The Court should decline Plaintiff’s invitation to ignore all of these defects and resolve them now so that Genentech receives proper notice of Plaintiff’s viable claims and so this case may proceed efficiently to summary judgment and possibly to trial. Accordingly, the Court

should sustain Genentech’s Demurrer. I1. ARGUMENT

A. Plaintiff Improperly Combines Claims In Her First and Second Causes of Action—Each Claim Must Be Pled Separately To Facilitate Adjudication Of the Claims At Summary Judgment and Trial

Plaintiff’s first and second causes of action contain two claims each. The first cause of action includes claims for discrimination and retaliation and the second cause of action includes claims for harassment and failure to take reasonable steps to prevent the harassment. In its

Demurrer, Genentech asks the Court to dismiss the first and second causes of action so that

OHSUSA:753544423.1 1

OHSUSA:753544423.1 1 Plaintiff can properly re-plead them as four separate claims; thereby facilitating the efficient adjudication of the claims at summary judgment and trial. See Zumbrun v. Univ. of S. Cal., 25 Cal. App. 3d 1, 9 (1972) (sustaining demurrer to count that contained two independent causes of action); Bautista v. Los Angeles Cntjz., 216 F.3d 837, 840 (9th Cir. 2000) (“Separate counts will be required if necessary to enable the defendant to frame a responsive pleading or to enable the court and other parties to understand the claims.”) (citations omitted). While Plaintiff admits that her first cause of action includes two separate claims, she would have the Court ignore these defects.’ However, under Zumbrun, separate claims involving different facts and theories should be pled as separate causes of action to facilitate the adjudication of their validity. 25 Cal. App. 3d at 9. Plaintiff offers no reason why she cannot do so (and in fact, says that she could have done so) and cites no case‘law demonstrating that separate and distinct FEHA claims can be combined in one cause of action.

Plaintiff can properly re-plead them as four separate claims; thereby facilitating the efficient adjudication of the claims at summary judgment and trial. See Zumbrun v. Univ. of S. Cal., 25 Cal. App. 3d 1, 9 (1972) (sustaining demurrer to count that contained two independent causes of action); Bautista v. Los Angeles Cntjz., 216 F.3d 837, 840 (9th Cir. 2000) (“Separate counts will be required if necessary to enable the defendant to frame a responsive pleading or to enable the court and other parties to understand the claims.”) (citations omitted). While Plaintiff admits that her first cause of action includes two separate claims, she would have the Court ignore these defects.’ However, under Zumbrun, separate claims involving different facts and theories should be pled as separate causes of action to facilitate the adjudication of their validity. 25 Cal. App. 3d at 9. Plaintiff offers no reason why she cannot do so (and in fact, says that she could have done so) and cites no case‘law demonstrating that separate and distinct FEHA claims can be combined in one cause of action.

Accordingly, the Court should sustain Genentech’s Demurrer to the first and second causes of action and order Plaintiff to plead each of the four claims as separate causes of action with specific facts to support each claim.

B. Plaintiff’s First and Second Causes of Action Also Fail to State Claims

To state a prima facie case of discrimination or harassment, Plaintiff must show that she is a member of a protected class. Cal. Gov’t Code §§ 12940(a) & (j). Here, Plaintiff’s FAC does not specify which protected class serves as the basis of her discrimination claims and so these claims fail.

Plaintiff argues that her inclusion of facts about her religion and national originintroductory paragraphs of her FAC is more than adequate to state a discrimination claim.

This is not sufficient. Genentech could just as easily assume that the inclusion of facts about her

! Plaintiff’s second cause of action is even more confusing. In her FAC she alleges violations of both Government Code sections 12940(j) (harassment) and (k) (failure to prevent harassment). In her Opposition, however, Plaintiff states only that her second cause of action “focuses on” Genentech’s “failure to take reasonable steps to prevent discrimination.” Demurrer Opp. 3:15-17. i Accordingly, it is unclear whether Plaintiff is making a harassment claim at all.

OHSUSA:753544423.1 2

OHSUSA:753544423.1 2 gender and alleged disability also serve as the basis of her FEHA claims. Plaintiff’s Opposition does not demonstrate that her claims are properly pled and actually illustrates why her improper chain pleading is unnecessarily confusing.

gender and alleged disability also serve as the basis of her FEHA claims. Plaintiff’s Opposition does not demonstrate that her claims are properly pled and actually illustrates why her improper chain pleading is unnecessarily confusing.

C. Plaintiff’s Breach of Contract Claim Must Be Dismissed

Plaintiff repeats references to Genentech’s alleged written policies as the basis for her breach of contract claim. However, as stated in Genentech’s Demurrer, Plaintiff’s policy allegations are mere recitations of the applicable laws against discrimination, harassment, retaliation, and similar issues. They cannot form the basis of a breach of contract claim as a matter of law. Farmearl v. Storopack, Inc., 2005 U.S. Dist. LEXIS 34293, *29-30 (N.D. Cal. Sept. 12, 2005) (citing Cal. Civ. Code § 1605) (“[I]it is well-established that a promise to conform to the law lacks consideration and is therefore unenforceable.”).

For example, Plaintiff’s allegation that Genentech’s policies oblige it to “make reasonable accommodations for employees when needed due to their religion or disability” (FAC, § 38), simply restates Genentech’s obligation under FEHA to “make reasonable accommodation for the known physical or mental disability of an applicant” and to explore “available reasonable alternative means of accommodating the religious belief or observance” of an employee. Cal. Gov’t Code §§ 12940(1) & (m). Additionally, Plaintiff’s allegation that Genentech’s policies “prohibit unlawful discrimination” obviously restates Genentech’s obligations under the law. FAC, 9 38 (emphasis added).

Plaintiff argues that her contract claim based on Genentech’s written policies should not be dismissed because the policies “include specific pledges to halt discrimination, bullying and harassment, and to respond diligently and effectively when informed of same.” Demurrer Opp. at 4. But each of the policy elements that Plaintiff alleges here would be subsumed by the legal requirements that Genentech “take all reasonable steps to prevent harassment from ocpurring.” Cal. Gov’t Code § 12940(j)(1). Plaintiff’s argument regarding Genentech’s promise not to retaliate is similarly subsumed by Genentech’s legal obligations under Cal. Gov’t Code § 12940(h).

In support of her Opposition, Plaintiff cites a single case, Zody v. Microsoft Corp., 2012

OHSUSA:753544423.1 3

OHSUSA:753544423.1 3 U.S. Dist. LEXIS 131081 (N.D. Cal. Sept. 13, 2012), as “on all fours with this case”. Demurrer Opp. at 4. Zody, however, is distinguishable on multiple grounds. First, in Zody, tfle plaintiff’s breach of contract claim involved Microsoft’s alleged failure to follow specific policies related to “Objective Performance Based Compensation” in addition to its anti-discrimination policies. /d. at *4. In support of her claim, the plaintiff included seven pages of specific allegations recounting various promises she claimed Microsoft breached. See Request for Judicial Notice in Support of Genentech’s Demurrer (“RJN”), Ex. A, at 20-27. By contrast, here, Plaintiff merely cites three sections of Genentech’s Code of Conduct that restate Genentech’s obligations under the law. FAC, § 38. She does not allege that Genentech breached any other promises and her conclusory allegation that “Genentech’s contractual promises to its employees went beyond pledging simply to obey the law” does not save her claim. Id. at 39.2

U.S. Dist. LEXIS 131081 (N.D. Cal. Sept. 13, 2012), as “on all fours with this case”. Demurrer Opp. at 4. Zody, however, is distinguishable on multiple grounds. First, in Zody, tfle plaintiff’s breach of contract claim involved Microsoft’s alleged failure to follow specific policies related to “Objective Performance Based Compensation” in addition to its anti-discrimination policies. /d. at *4. In support of her claim, the plaintiff included seven pages of specific allegations recounting various promises she claimed Microsoft breached. See Request for Judicial Notice in Support of Genentech’s Demurrer (“RJN”), Ex. A, at 20-27. By contrast, here, Plaintiff merely cites three sections of Genentech’s Code of Conduct that restate Genentech’s obligations under the law. FAC, § 38. She does not allege that Genentech breached any other promises and her conclusory allegation that “Genentech’s contractual promises to its employees went beyond pledging simply to obey the law” does not save her claim. Id. at 39.2

Moreover, the language cited by Plaintiff from Zody related to a motion to strike allegations that Microsoft violated its policies. 2012 U.S. Dist. LEXIS 131081 at *21. Because the court opined that Microsoft conceded “that these allegations have relevance to other claims in this action” beyond the breach of contract claim, it denied the motion to strike because “it is not the case that they have ‘no possible bearing’ on the subject matter of this litigation.” Id. That is clearly not the procedural posture here. Here, Genentech demurs to Plaintiff’s breach of contract claim in its entirety because it is based solely on policy allegations that are mere recitations of the applicable laws against discrimination, harassment, retaliation, and similar i1ssues.

Accordingly, because the policies underlying Plaintiff’s breach of contract claim only promise what FEHA requires, Plaintiff’s breach of contract claim must be dismissed because she fails to plead the existence of an enforceable contract.

2 In fact, in Oliver v. Microsoft, the Northern District granted Microsoft’s motion to dismiss plaintiff’s breach of contract claim on facts similar to those in Zody. See RIN, Ex. B. In Oliver, the court dismissed plaintiff’s contract claim under Farmear! and stated that while plaintiff “insists she has pleaded that Microsoft made promises that go beyond its minimum obligations under the law, she has not set forth specific alleged representations by Microsoft that are meaningfully distinguishable from general assurances that it would exercise diligence and good faith in complying with its legal obligations.” Id. at 4.

OHSUSA:753544423. 1 4

OHSUSA:753544423. 1 4 D. Plaintiff’s Breach of Covenant Claim Is Equally Defective and Fails

D. Plaintiff’s Breach of Covenant Claim Is Equally Defective and Fails

Plaintiff’s Opposition likewise cannot save from dismissal her claim for breach of the covenant of good faith and fair dealing. Plaintiff’s covenant claim is barred by the absence of a viable breach of contract claim. Since Plaintiff cannot allege a competent claim for breach of contract, there is nothing to give rise to an implied covenant of good faith and fafr dealing. Bionghi v. Metro. Water Dist. of S. Cal., 70 Cal. App. 4th 1358, 1370 (19995 (no implied covenant claim exists where there is no contract). This is because the nature and extent of the implied covenant of good faith and fair dealing is limited by the explicit promises contained in the parties’ agreement. Foley v. Interactive Data, 47 Cal. 3d 654, 690 (1988). The implied covenant does not create contractual duties where none exist. Guz v. Bechtel Nat’l, 24 Cal. 4th 317, 349-50 (2000) (“The covenant cannot be endowed with an existence independent of its contractual underpinnings. It cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement.”). Accordingly, Plaintiff’s breach of covenant claim should be dismissed.

E. Plaintiff’s Chain Pleading Is Improper and Unnecessarily Confusing

Plaintiff’s FAC recites 24 paragraphs of alleged facts, with no guidance as to which claims, if any, thése facts support. As stated in Genentech’s Demurrer, this type of chain pleading is improper. See Kelly v. Gen. Tel. Co., 136 Cal. App. 3d 278, 285 (1982) (“This type of pleading should be avoided as it tends to cause ambiguity and creates redundancy”); Uhrich v. State Farm, 109 Cal. App. 4th 598, 605 (2003) (same). Plaintiff’s only argument otherwise is that “hundreds if not thousands of complaints” do the same thing. This unsupported statement does not sufficiently rebut Genentech’s argument.

Here, Plaintiff alleges that every fact in her FAC supports every cause of action—which is clearly not the case.. By incorporating every fact into every claim, Plaintiff makes summary judgment and trial unnecessarily confusing and complex for the parties and the Court. For example, if Genentech filed a motion for summary judgment on Plaintiff’s intentional infliction of emotional distress claim, the parties and the Court will be forced to parse through 46+

paragraphs to determine whether any of the facts constitute “extreme and outrageous” conduct.

OHSUSA:753544423.1 5

OHSUSA:753544423.1 5 See Fowler v. Varian Assocs., 196 Cal. App. 3d 34, 44 (1987) (for IIED claim “it is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.”). This is entirely unnecessary and can be avoided if Plaintiff simply specifies the facts that support each of her claims. Accordingly, the Court should order Plaintiff to amend her FAC to make a more definite statement, specifically identifying the facts that support each of her claims. III. CONCLUSION

See Fowler v. Varian Assocs., 196 Cal. App. 3d 34, 44 (1987) (for IIED claim “it is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.”). This is entirely unnecessary and can be avoided if Plaintiff simply specifies the facts that support each of her claims. Accordingly, the Court should order Plaintiff to amend her FAC to make a more definite statement, specifically identifying the facts that support each of her claims. III. CONCLUSION

Genentech is entitled to sufficient notice of the claims asserted against it and to a complaint that asserts viable claims and properly frames the case. Plaintiff’s FAC does not do this. For the reasons set forth above and in Genentech’s Demurrer, the Court should sustain

Genentech’s Demurrer, or in the alternative, order Plaintiff to make a more definite statement.

Dated: April 24, 2013 LYNNE (