Preview
1 Jesse J. Maddox, Bar No. 219091 E-FILED
jmaddox@lcwlegal.com 9/17/2021 11:34 AM
2 Nathan T. Jackson, Bar No. 285620 Superior Court of California
njackson@lcwlegal.com County of Fresno
3 LIEBERT CASSIDY WHITMORE By: L Peterson, Deputy
A Professional Law Corporation
4 5250 North Palm Ave, Suite 310
Fresno, California 93704
5 Telephone: 559.256.7800
Facsimile: 559.449.4535
6
Attorneys for Defendant BOARD OF TRUSTEES OF
7 CALIFORNIA STATE UNIVERSITY
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF FRESNO
11 A. SAMEH EL KHARBAWY, Case No.: 21CECG02214
12 Plaintiff, [ASSIGNED FOR ALL PURPOSES TO
5250 North Palm Ave, Suite 310
A Professional Law Corporation
KIMBERLY GAAB, DEPT. 503]
Liebert Cassidy Whitmore
Fresno, California 93704
13 v.
Complaint Filed: October 23, 2020
14 BOARD OF TRUSTEES OF
CALIFORNIA STATE UNIVERSITY; DEFENDANT BOARD OF TRUSTEES OF
15 DARRYL L. HAMM, an individual; CALIFORNIA STATE UNIVERSITY’S
LYNNETTE ZELEZNY, an individual; NOTICE OF SPECIAL MOTION TO STRIKE
16 JOSEPH I. CASTRO, an individual; AND SPECIAL MOTION TO STRIKE
SAUL JIMENEZ-SANDOVAL, an PLAINTIFF A. SAMEH EL KHARBAWY’S
17 individual; XUANNING FU, an COMPLAINT PURSUANT TO ANTI-SLAPP
individual; AND DOES 1 through 50, STATUTE, CODE CIV. PROC. § 425.16, AND
18 FOR MONETARY SANCTIONS
Respondent.
19 Date: October 19, 2021
Time: 3:30 p.m.
20 Dept.: 503
21
(*Exempt from filing fees pursuant to Gov.
22 Code, § 6103.)
23
24 TO PLAINTIFF AND HIS ATTORNEYS OF RECORD:
25 PLEASE TAKE NOTICE THAT on October 19, 2021, at 3:30 p.m., or as soon thereafter
26 as the matter may be heard in Department 503 of the above-entitled Court, located at 1130 O Street,
27 Fresno, California 93724, Defendant Board of Trustees of California State University (“Defendant”
28 or “CSU”) will and hereby does move this Court pursuant to Code of Civil Procedure section 425.16
1
Defendant’s Notice of Special Motion to Strike and Special Motion to Strike Plaintiff’s Complaint
9797071.1 FR007-003
1 to strike the Third, Sixth, Seventh, Eighth, and Tenth of Plaintiff’s Complaint (“Complaint”), or
2 the portions of the complaint directed at protected activity.
3 This motion will be made on the grounds that Plaintiff has filed a Strategic Lawsuit
4 Against Public Participation (“SLAPP”) suit, a meritless suit that chills a CSU’s valid exercise
5 of constitutional rights of freedom of speech and petition for redress of grievances. (Code
6 Civ. Pro. § 425.16 et seq.). Although Plaintiff labels his allegations in the Third, Sixth,
7 Seventh, Eighth, and Tenth causes of action as claims for violations of the Fair Employment
8 and Housing Act, Labor Code section 1102.5, Government Code 8547 et seq., Defamation,
9 and Intentional Infliction of Emotional Distress, Plaintiff's allegations are based on
10 Defendant's state-authorized workplace investigation and communications and conclusions
11 reached in connection to it. Therefore, the communications and actions on which Plaintiff
12 bases his Third, Sixth, Seventh, Eighth, and Tenth causes of action were made as part of an
5250 North Palm Ave, Suite 310
A Professional Law Corporation
Liebert Cassidy Whitmore
Fresno, California 93704
13 official proceeding, and are protected by the anti-SLAPP statute. Indeed, Plaintiff
14 incorporated ever allegations in his lawsuit into every cause of action, and in doing so relies
15 upon it as injuring producing conduct. Thus, to the extent the Court concludes one paragraph
16 or claim is based on protected conduct, it infects every cause of action. Moreover, Plaintiff’s
17 suspension is not an adverse employment action under his own CBA. Plaintiff cannot
18 establish a probability of prevailing on the merits or establish that the legitimate business
19 reasons CSU proffered for investigating and suspending him were pretext.
20 SPECIAL MOTION TO STRIKE
21 Eighth Cause of Action: Plaintiff’s defamation cause of action is based on protected
22 conduct and protected communications, including misconduct allegations communicated to
23 him in suspension notices that CSU was required to provide him as a matter of due process and
24 under his CBA. There is no question this is protected activity within the meaning of the anti-
25 SLAPP statute. (Laker v. Board of Trustees (2019) 32 Cal.App.5th 745, 764-765 [statements
26 or communications made in connection with a workplace investigation are protected by the
27 anti-SLAPP statute, and cannot form the basis of a defamation claim].) To the extent Plaintiff
28 is suing for defamation based on communications made to an accreditation body (CIDA),
2
Defendant’s Notice of Special Motion to Strike and Special Motion to Strike Plaintiff’s Complaint
9797071.1 FR007-003
1 those are communications on a matter of public interest under section 425.16 (e)(4). Plaintiff
2 cannot prevail on the merits, because: (1) He did not file a tort claim within six months of the
3 allegedly defamatory statements, and/or (2) failed to exhaust his administrative remedies in the
4 tort claim(s) he eventually filed, and/or (3) allowed the statute of limitations to expire after
5 CSU rejected his tort claim. Moreover, the allegations of misconduct are privileged under
6 Civil Code section 47, and CSU is immune from common law tort liability.
7 Sixth and Tenth Causes of Action: Plaintiff’s sixth and tenth causes of action are
8 based on protected conduct and communications in connection with an official proceeding,
9 and they also incorporate/rely upon his defamation allegations. Plaintiff cannot prevail on the
10 merits, because he failed to exhaust his administrative remedies for his Labor Code section
11 1102.5 and Intentional Infliction of Emotional Distress causes of action. In this case, Plaintiff
12 filed a tort claim, but then failed to timely commence suit after CSU rejected it. He then
5250 North Palm Ave, Suite 310
A Professional Law Corporation
Liebert Cassidy Whitmore
Fresno, California 93704
13 attempted to revive his claims by simply filing a new tort claim, which is improper. The ill
14 effects of an ongoing suspension or some other allegedly previous wrong do not create a new
15 statute of limitations. Moreover, CSU had legitimate business reasons for the allegedly
16 adverse employment actions specified in the complaint, including his suspension. Also,
17 Plaintiff cannot sue CSU because he was displeased with how it responded to his public
18 records act requests. That cannot be retaliation or injury producing conduct.
19 Seventh Cause of Action: Plaintiff’s seventh causes of action is based on protected
20 conduct and communications in connection with an official proceeding, and it also
21 incorporates/relies upon his defamation allegations. Plaintiff failed to exhaust his
22 administrative remedies under Government Code section 8547 et seq. In this case, Plaintiff
23 filed an internal complaint with CSU in an effort to comply with his administrative remedies,
24 but he did not file it under penalty of perjury or as a sworn statement. The statute requires this.
25 Moreover, none of the internal complaints that Plaintiff filed with CSU (as required by statute)
26 comported with CSU’s own internal complaint requirements, which render them
27 independently defective. CSU also had legitimate business reasons for the allegedly adverse
28 employment actions specified in the complaint, including his suspension. Plaintiff cannot sue
3
Defendant’s Notice of Special Motion to Strike and Special Motion to Strike Plaintiff’s Complaint
9797071.1 FR007-003
1 CSU because he was displeased with the manner in which it responded to his public records
act requests. That cannot be retaliation or injury producing conduct.
3 Third Cause of Action: Plaintiff's third cause of action is based on protected conduct
4 and communications in connection with an official proceeding, and it also incorporates/relies
upon his defamation allegations. Plaintiff's FEHA retaliation cause of action fails as a matter
6 of law, because he failed to exhaust his administrative remedies and then attempted to save his
7 untimely claims by filing a new DFEH complaint. Moreover, there is no evidence that CSU
8 mistreated Plaintiff in retaliation for his racial or ethnic origin. CSU had legitimate business
9 reasons for suspending Plaintiff, and there is no evidence of pretext.
I0 CSU will also seek an award of sanctions in the amount to be determined against Plaintiff
11 and his attorneys, jointly and severally, for: the expense of and all time spent preparing this
12 Special Motion to Strike, responding to any Opposition filed by Plaintiff, and preparing a motion
13 for, and then appearing at, the hearing on this Motion in a separate Motion for Attorney's Fees.
14 (Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611, 631.)
15 This Motion is based upon this Notice of Special Motion and Special Motion, the attached
16 Memorandum of Points and Authorities, the Declarations of Dr. Honora Chapman, Esther
17 Gonzalez, Daryl Hamm, Marylou Mendoza-Miller, Rudy Sanchez, Holly Sowles, and Nathan T.
18 Jackson, the Request for Judicial Notice, and the papers on file in this case, any oral argument that
19 may be heard by the Court, and any other matters the Court deems appropriate.
20
21 Dated: September 16, 2021 LIEBERT CASSIDY WHITMORE
)
23
B :
24 J se J.
athan T. Jackso
25 Attorneys for D= endant BOARD OF
TRUSTEES O CALIFORNIA STATE
26 UNIVERSITY
27
28
4
Defendant's Notice of Special Motion to Strike and Special Motion to Strike Plaintiff's Complaint
9797071.1 FR007-003
Preview
1 Jesse J. Maddox, Bar No. 219091 E-FILED jmaddox@lcwlegal.com 9/17/2021 11:34 AM 2 Nathan T. Jackson, Bar No. 285620 Superior Court of California njackson@lcwlegal.com County of Fresno 3 LIEBERT CASSIDY WHITMORE By: L Peterson, Deputy A Professional Law Corporation 4 5250 North Palm Ave, Suite 310 Fresno, California 93704 5 Telephone: 559.256.7800 Facsimile: 559.449.4535 6 Attorneys for Defendant BOARD OF TRUSTEES OF 7 CALIFORNIA STATE UNIVERSITY 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF FRESNO 11 A. SAMEH EL KHARBAWY, Case No.: 21CECG02214 12 Plaintiff, [ASSIGNED FOR ALL PURPOSES TO 5250 North Palm Ave, Suite 310 A Professional Law Corporation KIMBERLY GAAB, DEPT. 503] Liebert Cassidy Whitmore Fresno, California 93704 13 v. Complaint Filed: October 23, 2020 14 BOARD OF TRUSTEES OF CALIFORNIA STATE UNIVERSITY; DEFENDANT BOARD OF TRUSTEES OF 15 DARRYL L. HAMM, an individual; CALIFORNIA STATE UNIVERSITY’S LYNNETTE ZELEZNY, an individual; NOTICE OF SPECIAL MOTION TO STRIKE 16 JOSEPH I. CASTRO, an individual; AND SPECIAL MOTION TO STRIKE SAUL JIMENEZ-SANDOVAL, an PLAINTIFF A. SAMEH EL KHARBAWY’S 17 individual; XUANNING FU, an COMPLAINT PURSUANT TO ANTI-SLAPP individual; AND DOES 1 through 50, STATUTE, CODE CIV. PROC. § 425.16, AND 18 FOR MONETARY SANCTIONS Respondent. 19 Date: October 19, 2021 Time: 3:30 p.m. 20 Dept.: 503 21 (*Exempt from filing fees pursuant to Gov. 22 Code, § 6103.) 23 24 TO PLAINTIFF AND HIS ATTORNEYS OF RECORD: 25 PLEASE TAKE NOTICE THAT on October 19, 2021, at 3:30 p.m., or as soon thereafter 26 as the matter may be heard in Department 503 of the above-entitled Court, located at 1130 O Street, 27 Fresno, California 93724, Defendant Board of Trustees of California State University (“Defendant” 28 or “CSU”) will and hereby does move this Court pursuant to Code of Civil Procedure section 425.16 1 Defendant’s Notice of Special Motion to Strike and Special Motion to Strike Plaintiff’s Complaint 9797071.1 FR007-003 1 to strike the Third, Sixth, Seventh, Eighth, and Tenth of Plaintiff’s Complaint (“Complaint”), or 2 the portions of the complaint directed at protected activity. 3 This motion will be made on the grounds that Plaintiff has filed a Strategic Lawsuit 4 Against Public Participation (“SLAPP”) suit, a meritless suit that chills a CSU’s valid exercise 5 of constitutional rights of freedom of speech and petition for redress of grievances. (Code 6 Civ. Pro. § 425.16 et seq.). Although Plaintiff labels his allegations in the Third, Sixth, 7 Seventh, Eighth, and Tenth causes of action as claims for violations of the Fair Employment 8 and Housing Act, Labor Code section 1102.5, Government Code 8547 et seq., Defamation, 9 and Intentional Infliction of Emotional Distress, Plaintiff's allegations are based on 10 Defendant's state-authorized workplace investigation and communications and conclusions 11 reached in connection to it. Therefore, the communications and actions on which Plaintiff 12 bases his Third, Sixth, Seventh, Eighth, and Tenth causes of action were made as part of an 5250 North Palm Ave, Suite 310 A Professional Law Corporation Liebert Cassidy Whitmore Fresno, California 93704 13 official proceeding, and are protected by the anti-SLAPP statute. Indeed, Plaintiff 14 incorporated ever allegations in his lawsuit into every cause of action, and in doing so relies 15 upon it as injuring producing conduct. Thus, to the extent the Court concludes one paragraph 16 or claim is based on protected conduct, it infects every cause of action. Moreover, Plaintiff’s 17 suspension is not an adverse employment action under his own CBA. Plaintiff cannot 18 establish a probability of prevailing on the merits or establish that the legitimate business 19 reasons CSU proffered for investigating and suspending him were pretext. 20 SPECIAL MOTION TO STRIKE 21 Eighth Cause of Action: Plaintiff’s defamation cause of action is based on protected 22 conduct and protected communications, including misconduct allegations communicated to 23 him in suspension notices that CSU was required to provide him as a matter of due process and 24 under his CBA. There is no question this is protected activity within the meaning of the anti- 25 SLAPP statute. (Laker v. Board of Trustees (2019) 32 Cal.App.5th 745, 764-765 [statements 26 or communications made in connection with a workplace investigation are protected by the 27 anti-SLAPP statute, and cannot form the basis of a defamation claim].) To the extent Plaintiff 28 is suing for defamation based on communications made to an accreditation body (CIDA), 2 Defendant’s Notice of Special Motion to Strike and Special Motion to Strike Plaintiff’s Complaint 9797071.1 FR007-003 1 those are communications on a matter of public interest under section 425.16 (e)(4). Plaintiff 2 cannot prevail on the merits, because: (1) He did not file a tort claim within six months of the 3 allegedly defamatory statements, and/or (2) failed to exhaust his administrative remedies in the 4 tort claim(s) he eventually filed, and/or (3) allowed the statute of limitations to expire after 5 CSU rejected his tort claim. Moreover, the allegations of misconduct are privileged under 6 Civil Code section 47, and CSU is immune from common law tort liability. 7 Sixth and Tenth Causes of Action: Plaintiff’s sixth and tenth causes of action are 8 based on protected conduct and communications in connection with an official proceeding, 9 and they also incorporate/rely upon his defamation allegations. Plaintiff cannot prevail on the 10 merits, because he failed to exhaust his administrative remedies for his Labor Code section 11 1102.5 and Intentional Infliction of Emotional Distress causes of action. In this case, Plaintiff 12 filed a tort claim, but then failed to timely commence suit after CSU rejected it. He then 5250 North Palm Ave, Suite 310 A Professional Law Corporation Liebert Cassidy Whitmore Fresno, California 93704 13 attempted to revive his claims by simply filing a new tort claim, which is improper. The ill 14 effects of an ongoing suspension or some other allegedly previous wrong do not create a new 15 statute of limitations. Moreover, CSU had legitimate business reasons for the allegedly 16 adverse employment actions specified in the complaint, including his suspension. Also, 17 Plaintiff cannot sue CSU because he was displeased with how it responded to his public 18 records act requests. That cannot be retaliation or injury producing conduct. 19 Seventh Cause of Action: Plaintiff’s seventh causes of action is based on protected 20 conduct and communications in connection with an official proceeding, and it also 21 incorporates/relies upon his defamation allegations. Plaintiff failed to exhaust his 22 administrative remedies under Government Code section 8547 et seq. In this case, Plaintiff 23 filed an internal complaint with CSU in an effort to comply with his administrative remedies, 24 but he did not file it under penalty of perjury or as a sworn statement. The statute requires this. 25 Moreover, none of the internal complaints that Plaintiff filed with CSU (as required by statute) 26 comported with CSU’s own internal complaint requirements, which render them 27 independently defective. CSU also had legitimate business reasons for the allegedly adverse 28 employment actions specified in the complaint, including his suspension. Plaintiff cannot sue 3 Defendant’s Notice of Special Motion to Strike and Special Motion to Strike Plaintiff’s Complaint 9797071.1 FR007-003 1 CSU because he was displeased with the manner in which it responded to his public records act requests. That cannot be retaliation or injury producing conduct. 3 Third Cause of Action: Plaintiff's third cause of action is based on protected conduct 4 and communications in connection with an official proceeding, and it also incorporates/relies upon his defamation allegations. Plaintiff's FEHA retaliation cause of action fails as a matter 6 of law, because he failed to exhaust his administrative remedies and then attempted to save his 7 untimely claims by filing a new DFEH complaint. Moreover, there is no evidence that CSU 8 mistreated Plaintiff in retaliation for his racial or ethnic origin. CSU had legitimate business 9 reasons for suspending Plaintiff, and there is no evidence of pretext. I0 CSU will also seek an award of sanctions in the amount to be determined against Plaintiff 11 and his attorneys, jointly and severally, for: the expense of and all time spent preparing this 12 Special Motion to Strike, responding to any Opposition filed by Plaintiff, and preparing a motion 13 for, and then appearing at, the hearing on this Motion in a separate Motion for Attorney's Fees. 14 (Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611, 631.) 15 This Motion is based upon this Notice of Special Motion and Special Motion, the attached 16 Memorandum of Points and Authorities, the Declarations of Dr. Honora Chapman, Esther 17 Gonzalez, Daryl Hamm, Marylou Mendoza-Miller, Rudy Sanchez, Holly Sowles, and Nathan T. 18 Jackson, the Request for Judicial Notice, and the papers on file in this case, any oral argument that 19 may be heard by the Court, and any other matters the Court deems appropriate. 20 21 Dated: September 16, 2021 LIEBERT CASSIDY WHITMORE ) 23 B : 24 J se J. athan T. Jackso 25 Attorneys for D= endant BOARD OF TRUSTEES O CALIFORNIA STATE 26 UNIVERSITY 27 28 4 Defendant's Notice of Special Motion to Strike and Special Motion to Strike Plaintiff's Complaint 9797071.1 FR007-003