On October 23, 2020 a
Motion-Secondary
was filed
involving a dispute between
Kharbawy, A. Sameh El,
and
Board Of Trustees Of California State Of University,
Castro, Joseph I.,
Fu, Xuanning,
Hamm, Daryl L.,
Jimenez-Sandoval, Saul,
Zelenzy, Lynnette,
for 15 Unlimited - Other Employment
in the District Court of Fresno County.
Preview
FILED by Superior Court of
Electronically PM Sherri
County of Los Angeles on 03/23/2021 11:05
California, by J. Ballesterospepuiy Clerk
R. Carter, Executive Officer/Clerk of Court,
Andrew Hillier (State Bar No. 295779)
Hillier Law
600 W. Broadway, Suite 700
San Diego, CA 92101
Telephone: (619) 500-7906 I
Facsimile: (619) 839-3895
andrew@ahillierlaw.com
Attorney for Plaintiff,
A. Sameh E1 Kharbawy
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
21 CE cc 0'2214
A. SAMEH EL KHARBAWY, Case No.2 20LBCV00465
10.
Plaintiff,
PLAINTIFF’S OBJECTIONS TO
DEFENDANT BOARD OF TRUSTEES 0F
ll
VS. THE CALIFORNIA STATE
UNIVERSITY’S EVIDENCE IN
12
SUPPORT OF ITS REPLY BRIEF
l3
BOARD OF TRUSTEES OF THE
CALIFORNLA STATE UNIVERSITY; Date: March 25, 2021
DARRYL L. HAMM, an individual; Time: 8:30 am.
14 '
De t.: 826
LYNNETTE ZELEZNY, an individual; Ju ge: Hon. Michael Vicencia
15 JOSEPH I. CASTRO, an individual;
SAUL JIMENEz-SANDOVAL, an individual;
16
XUANNING FU, an individual;
l7
AND DOES 1 through 50,
18 Defendants.
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TEAINTIFF’S‘OBJECTIONS TO DEFENDANT CSU’S EVIDENCE IN SUPPORT OF ITS REPLY BRIEF
Page 1
I. INTRODUCTION
Plaintiff Dr. A. Sameh E1 Kharbawy (“Plaintiff’) objects to evidence submitted by
Defendant Board of Trustees of the California State University (“Defendant”) in support of its
Reply Brief (“the Reply”) related to its second Motion to Transfer Venue (“the Motion”).
Defendant attached nine (9) substantive declarations to its Reply and offered new—and
untimely—arguments and evidence, effectively denying Plaintiff an opportunity to respond.
Plaintiff requests this Court repudiate Defendant’s surprise tactics by striking the new arguments
and evidefice. In the alternative, Plaintiffrequests an opportunity to respond to effectively respond
to the Reply’s new arguments and evidence.
10 II. PLAINTIFF’S OBJECTIONS
11 A. Plaintiff Obiects to the New Arguments and Evidence Set Forth in Defendanfig
12 Reply Brief.
l3 In its Reply Brief, Defendant offered new arguments for relief under Cal. C. Civ. Prod. §
14 397(c), including (1) an argument that Plaintiff put witnesses “at issue” by mentioning them in
15 administrative complaints; and (2) that several witnesses “have unusual hardships.” Plaintiff
16 challenges these contentions on both their legal and factual mefits; however, by waiting to make
17 these arguments until the Reply, Defendant deprived Plaintiff of a substantive opportunity to
18 respond. Defendant also submitted nine (9) declarations with the Reply brief, including the
19 declarations of Bradbury,'Cutts, Gould, Keesey, Osbourne, Simrock, and Zimmerman, as well as
20 the supplemental declarations of Chapman and Polgar. None of these declarations were provided
21 until after Plaintiff s Opposition», again forestalling substantive response.
22 i. Specific Obiectionable Language:
23 Plaintiff objects to the Reply’s new arguments; the declarations ofBradbury, Cutts, Gould,
24 Keesey, Osbourne, Simrdck, and Zimmerman (in their entirety); and the supplemental declarations
25
pf Chapman'andlpqlga‘r (in their" entirety).
I':
5
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=42 6?.“=
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'-
E-3-3ii. 'Eééél Gftgunds for the Objection:
'
27 Plaintiff objepts to the 'Reply’s new arguments and evidence on the grounds they are
""28" ‘
unt1melyand because‘Plaintiff-has'nét been given sufficient opportunity to respond. “The general
.PLA'INTIFF’S OBJECTIONS TO DEFENDANT CSU’S EVIDENCE IN SUPPORT OF ITS REPLY BRIEF
2‘
Page
:‘j'
rule of motion practice. ..isthat new evidence isnot permitted with reply papers.” (Jay v. Mahafley
(20 1 3) 21 8 Cal.App.4th 1522, 1537.) “Points raised for the first time in a reply brief will ordinarily
not be considered, because such consideration would deprive the respondent of an opportunity to
counter the argumen .”
(Id. at 1538 (citing with approval American Drug Stores v.Stroh (1992
10 Ca1.App.4th 1446, 1453).)
Defendant offers new evidence, in the form of nine (9) new, substantive declarations
attached to its Reply. That new evidence should not be considered by this Court because it i
untimely. Defendant had months to prepare forthis Motion hearing, but failed to produce thi
evidence until days prior to the hearing. That sort of surprise tactic should not be rewarded by thi
10 Court. At the very least, Plaintiff should be given an opportunity to substantively respond to
ll Defendant’s new arguments and evidence.
12 iii. Ru_1ing_
13 Plaintiff’s obj ection to the new evidence Defendant submitted with its Reply Brief:
l4 _ Sustained _ Overruled
15
l6 Respectfully Submitted,
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DATED: March 23, 2021 HILLIER LAW
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21
By: r
L /
22 Andrew E. Hi ler
Attorney for Plaintiff,
23
A. SAMEH EL KHARBAWY
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PLAINTIFF’S OBJECTIONS TO DEFENDANT CSU’S EVIDENCE IN SUPPORT OF ITS REPLY BRIEF
Page 3
THE DOCUMENT TO WHICH THIS CERTIFICATE IS
ATTACHED IS A FULL. TRUE. AND CORRECT COPY
OF THE ORIGINAL ON FILE AND OF RECORD IN
MY OFFICE.
WEST: JUN 14 2021
SHERRI R. CARTER
Executive Officer/Clerk of the Superior
C rt of alifornia, Count s Angeles.
DEPUTY
H?O'lis
v 1; S .~‘
“\u\uuuu«~““
Preview
FILED by Superior Court of Electronically PM Sherri County of Los Angeles on 03/23/2021 11:05 California, by J. Ballesterospepuiy Clerk R. Carter, Executive Officer/Clerk of Court, Andrew Hillier (State Bar No. 295779) Hillier Law 600 W. Broadway, Suite 700 San Diego, CA 92101 Telephone: (619) 500-7906 I Facsimile: (619) 839-3895 andrew@ahillierlaw.com Attorney for Plaintiff, A. Sameh E1 Kharbawy SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES 21 CE cc 0'2214 A. SAMEH EL KHARBAWY, Case No.2 20LBCV00465 10. Plaintiff, PLAINTIFF’S OBJECTIONS TO DEFENDANT BOARD OF TRUSTEES 0F ll VS. THE CALIFORNIA STATE UNIVERSITY’S EVIDENCE IN 12 SUPPORT OF ITS REPLY BRIEF l3 BOARD OF TRUSTEES OF THE CALIFORNLA STATE UNIVERSITY; Date: March 25, 2021 DARRYL L. HAMM, an individual; Time: 8:30 am. 14 ' De t.: 826 LYNNETTE ZELEZNY, an individual; Ju ge: Hon. Michael Vicencia 15 JOSEPH I. CASTRO, an individual; SAUL JIMENEz-SANDOVAL, an individual; 16 XUANNING FU, an individual; l7 AND DOES 1 through 50, 18 Defendants. l9 20 21 22 23 24 25 26 27 28 . TEAINTIFF’S‘OBJECTIONS TO DEFENDANT CSU’S EVIDENCE IN SUPPORT OF ITS REPLY BRIEF Page 1 I. INTRODUCTION Plaintiff Dr. A. Sameh E1 Kharbawy (“Plaintiff’) objects to evidence submitted by Defendant Board of Trustees of the California State University (“Defendant”) in support of its Reply Brief (“the Reply”) related to its second Motion to Transfer Venue (“the Motion”). Defendant attached nine (9) substantive declarations to its Reply and offered new—and untimely—arguments and evidence, effectively denying Plaintiff an opportunity to respond. Plaintiff requests this Court repudiate Defendant’s surprise tactics by striking the new arguments and evidefice. In the alternative, Plaintiffrequests an opportunity to respond to effectively respond to the Reply’s new arguments and evidence. 10 II. PLAINTIFF’S OBJECTIONS 11 A. Plaintiff Obiects to the New Arguments and Evidence Set Forth in Defendanfig 12 Reply Brief. l3 In its Reply Brief, Defendant offered new arguments for relief under Cal. C. Civ. Prod. § 14 397(c), including (1) an argument that Plaintiff put witnesses “at issue” by mentioning them in 15 administrative complaints; and (2) that several witnesses “have unusual hardships.” Plaintiff 16 challenges these contentions on both their legal and factual mefits; however, by waiting to make 17 these arguments until the Reply, Defendant deprived Plaintiff of a substantive opportunity to 18 respond. Defendant also submitted nine (9) declarations with the Reply brief, including the 19 declarations of Bradbury,'Cutts, Gould, Keesey, Osbourne, Simrock, and Zimmerman, as well as 20 the supplemental declarations of Chapman and Polgar. None of these declarations were provided 21 until after Plaintiff s Opposition», again forestalling substantive response. 22 i. Specific Obiectionable Language: 23 Plaintiff objects to the Reply’s new arguments; the declarations ofBradbury, Cutts, Gould, 24 Keesey, Osbourne, Simrdck, and Zimmerman (in their entirety); and the supplemental declarations 25 pf Chapman'andlpqlga‘r (in their" entirety). I': 5 " =42 6?.“= i '- E-3-3ii. 'Eééél Gftgunds for the Objection: ' 27 Plaintiff objepts to the 'Reply’s new arguments and evidence on the grounds they are ""28" ‘ unt1melyand because‘Plaintiff-has'nét been given sufficient opportunity to respond. “The general .PLA'INTIFF’S OBJECTIONS TO DEFENDANT CSU’S EVIDENCE IN SUPPORT OF ITS REPLY BRIEF 2‘ Page :‘j' rule of motion practice. ..isthat new evidence isnot permitted with reply papers.” (Jay v. Mahafley (20 1 3) 21 8 Cal.App.4th 1522, 1537.) “Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argumen .” (Id. at 1538 (citing with approval American Drug Stores v.Stroh (1992 10 Ca1.App.4th 1446, 1453).) Defendant offers new evidence, in the form of nine (9) new, substantive declarations attached to its Reply. That new evidence should not be considered by this Court because it i untimely. Defendant had months to prepare forthis Motion hearing, but failed to produce thi evidence until days prior to the hearing. That sort of surprise tactic should not be rewarded by thi 10 Court. At the very least, Plaintiff should be given an opportunity to substantively respond to ll Defendant’s new arguments and evidence. 12 iii. Ru_1ing_ 13 Plaintiff’s obj ection to the new evidence Defendant submitted with its Reply Brief: l4 _ Sustained _ Overruled 15 l6 Respectfully Submitted, l7 18 DATED: March 23, 2021 HILLIER LAW l9 20 21 By: r L / 22 Andrew E. Hi ler Attorney for Plaintiff, 23 A. SAMEH EL KHARBAWY 24 "I 215» ‘ 3:71}; 1‘ i': :51 ’ ==‘.i"t3‘.r1.' 261'.1:,,.:‘.':r'1."z 27 > PLAINTIFF’S OBJECTIONS TO DEFENDANT CSU’S EVIDENCE IN SUPPORT OF ITS REPLY BRIEF Page 3 THE DOCUMENT TO WHICH THIS CERTIFICATE IS ATTACHED IS A FULL. TRUE. AND CORRECT COPY OF THE ORIGINAL ON FILE AND OF RECORD IN MY OFFICE. WEST: JUN 14 2021 SHERRI R. CARTER Executive Officer/Clerk of the Superior C rt of alifornia, Count s Angeles. DEPUTY H?O'lis v 1; S .~‘ “\u\uuuu«~““