AUTUMN ABBY VS. THE GAP, INC

May 13, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ 9. Plaintiff has received a Right to Sue letter from the California Civil Rights Department and has thus exhausted all necessary administrative remedies[.]

(Fox Decl., exh. A [Complaint, ¶¶ 6-9].)

With the exception of the claim that “Plaintiff has received a Right to Sue letter from the California Civil Rights Department,” those are not facts; counsel’s allegations are bare legal conclusions. Indeed, although plaintiff brings a sex-based discrimination claim, the initial complaint does not even allege his or her sex or gender. The complaint uses male pronouns for plaintiff (see, e.g, Complaint, ¶ 1 [“Plaintiff Autumn Abby was at all times relevant to the matters alleged in this complaint an individual with his residence in California]), but also claims plaintiff was paid less than male counterparts. (Id., ¶ 7 [“Defendant subjected Plaintiff to lesser compensation than male employees, . . .”].)

The complaint does not state where plaintiff works or resides, what plaintiff’s position was, and does not identify any individual who discriminated against him or her. The complaint does not even allege that plaintiff was a Gap employee.

Defendant alleges that between August 2024 and August 2025, plaintiff’s counsel filed at least fifty (50) other single-plaintiff lawsuits containing factually devoid allegations, including at least three such cases in San Mateo County Superior Court. (Fox Decl., ¶ 4, exh. C.)

Defendant further alleges that judges across California courts have routinely sustained demurrers to plaintiff’s counsel’s factually devoid complaints and have directly advised plaintiff’s counsel that his pleadings are insufficient, including the following examples:

• “Even by California’s liberal pleading standards, the complaint is too skimpy. For example, the 14-line ‘factual background’ is actually a laundry list of legal concepts – bereft of facts and names – this could apply to almost any employment case.” (Louden v. Atlassian Corp., et al., Case No. CGC-24-617351, Order Sustaining Defendants’ Demurrer to Complaint, San Francisco County Superior Court, Nov. 19, 2024.)

• “Plaintiff’s complaint is totally conclusory and does not plead ultimate facts to support any of the causes of action....” (Ballard v. Open Top Sightseeing San Francisco, LLC, Case. No. CGC-24-617419, Order on Defendant’s Demurrer, San Francisco County Superior Court, Nov. 26, 2024.)

• “Here, Plaintiff has alleged virtually nothing beyond conclusions. Plaintiff may get the prize for the least facts alleged in any complaint that has been before this Court. Listing practically every basis on which an employer could potentially discriminate or harass an employee, and every adverse action an employer could take, with no facts to support those contentions, is far from sufficient.” (Cervantes v. Majestic Asset Mgmt., Inc., et al., Case No. 20STCV32127, Los Angeles County Superior Court, Dec. 9, 2020.)

May 13, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ • “Plaintiff does not plead in the factual allegations sections of his complaint that Defendant was his employer. Moreover, Plaintiff merely pleads conclusions of fact to support this element of his alleged causes of action.” (Wang v. American Airlines, Inc., et al., Case No. 19STCV09598, Order Sustaining Demurrer, Los Angeles County Superior Court, June 7, 2019.)

(Fox Decl., ¶ 5, exh. D.)

Plaintiff’s counsel responds that these are unreported decisions which cannot be cited as binding authority. That is correct. However, these decisions are cited for the proposition that plaintiff’s counsel has been previously placed on notice that complaints he filed were factually deficient.

Here, plaintiff waited eight months to file an amended complaint. Long before that, between August 15-19, 2025, defendant’s counsel attempted to meet and confer with plaintiff’s counsel via email and telephone. (Fox Decl., ¶¶ 6-10, exhs. E-H.) Those efforts included emailing a detailed letter outlining the specific concerns for each cause of action and identifying legal support for those objections. (Id., ¶ 7, exh. F.)

Defendant’s counsel states that during a meet and confer phone call on August 19, 2025, plaintiff’s counsel stated that “the complaint was sufficiently pled” and that any missing factual detail is “within the presumptive knowledge of the employer or ascertainable through discovery,” and refused to amend the complaint before abruptly hanging up to end the call. (Fox Decl., ¶ 10.)

On September 4, 2025, defendant’s counsel emailed plaintiff’s counsel a letter regarding his pattern and practice of similarly abusive complaints, and quoted several court rulings finding those pleadings insufficient. (Fox Decl., ¶ 11, exh. I.) In the letter, defendant’s counsel asserted that such conduct was sanctionable. (Ibid.) Plaintiff’s counsel did not file an amended complaint at that time, prompting defendant to file a demurrer to the complaint on September 15, 2025. (Id., ¶ 12.)

On, April 30, 2025 – the day before plaintiff’s opposition to defendant’s demurrer was due – plaintiff’s counsel filed an amended complaint. (See First Amended Complaint.) Defendant now seeks sanctions under Code of Civil Procedure, section 128.7. In particular, defendant seeks fees to compensate it for filing an unnecessary demurrer and this sanctions motion. Plaintiff’s counsel also seeks fees in connection with responding to this motion.

B. Code of Civil Procedure, section 128.7 is Remedial and Not Punitive

Code of Civil Procedure, section 128.7 provides in pertinent part that:

(b) By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the

May 13, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:

(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

(Code Civ. Proc., § 128.7, subd. (b)(1)-(3).)

Section 128.7, subdivision (d) provides that “[a] sanction imposed for violation of subdivision (b) shall be limited to what is sufficient to deter repetition of this conduct or comparable conduct by others similarly situated. Subject to the limitations in paragraphs (1) and (2), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorney's fees and other expenses incurred as a direct result of the violation.”

Significantly, “[w]hile section 128.7 does allow for reimbursement of expenses, including attorney fees, its primary purpose is to deter filing abuses, not to compensate those affected by them. It requires the court to limit sanctions “to what is sufficient to deter repetition of [the sanctionable] conduct or comparable conduct by others similarly situated.” (Musaelian v. Adams (2009) 45 Cal.4th 512, 519, citing Code Civ. Proc., § 128.5, subd. (d).)

Plaintiff’s counsel argues that while his complaint may have been factually insufficient, plaintiff’s claims are not frivolous and were not brought for the purpose of harassing defendant. Plaintiff’s counsel states that the initial complaint does not include any false allegations. Plaintiff’s counsel further argues that filing an insufficient complaint and refusing to amend a complaint at the opposing party’s demand is not sanctionable behavior.

Defendant counters that conduct here is not merely filing a complaint for which there may be a valid legal basis. Rather, the conduct defendant complains of is knowingly filing a complaint that does not meet California’s pleading standard.

The initial complaint was facially deficient and the court would have sustained a demurrer, with leave to amend. The amended complaint includes factual allegations that could well have been included in the initial complaint. (See e.g., FAC ¶ 6 [alleging that plaintiff is female]; ¶ 8 [plaintiff was hired by defendant in November 2022 as n asset protection service representative in Daly City]; ¶ 11 [plaintiff was paid at least $4/hour less than a male coworker]; etc.) The court is

May 13, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ not making any findings regarding whether the FAC states a cause of action; it may or may not withstand a demurrer. However, even a brief review of the amended pleading shows that it is not devoid of factual allegations.

Although the failure to plead any facts in the initial complaint deprived the defendant and the court of any opportunity to determine whether the allegations had any factual or legal support, that the FAC pleads some facts indicates that factual support may exist for the claims asserted.

“A court has broad discretion to impose sanctions if the moving party satisfies the elements of the sanctions statute.” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 441 (Peake).) “Like its federal counterpart, however, rule 11 of the Federal Rules of Civil Procedure (28 U.S.C.), Code of Civil Procedure section 128.7 should be utilized only in ‘the rare and exceptional case where the action is clearly frivolous, legally unreasonable or without legal foundation, or brought for an improper purpose.’” (Kumar v.

Ramsey (2021) 71 Cal.App.5th 1110, 1120-1121, quoting Operating Engineers Pension Trust v. A-C Co. (9th Cir. 1988) 859 F.2d 1336, 1344.) “Because our adversary system requires that attorneys and litigants be provided substantial breathing room to develop and assert factual and legal arguments, [section 128.7] sanctions should not be routinely or easily awarded even for a claim that is arguably frivolous” and instead “should be ‘made with restraint.’” (Kumar, supra, at p. 1121, quoting Peake, supra, 227 Cal.App.4th at p. 448.)

Given that plaintiff’s counsel has represented that he has substantial experience in in employment litigation, it is surprising and disappointing that his initial complaint was so patently devoid of facts that it would not have survived a demurrer. The court does not have the resources to spend time reviewing defective complaints, and would prefer not to take up room on its calendar to review sanctions motions.

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, plaintiff’s counsel shall prepare a written order consistent with the court’s ruling for the court’s signature, pursuant to California Rules of Court, Rule 3.1312 and Local Rule 3.403(b)(iv), and provide written notice of the ruling to all parties who have appeared in this action. The order should be e-filed only, do not email or mail a hard copy to the court.