Preview
Andrew Hillier (State Bar No. 295779)
Hillier Law E-FILED
600 W. Broadway, Suite 700 11/10/2021 11:38 PM
San Diego, CA 92101 Superior Court of California
Telephone: (619) 500-7906 County of Fresno
By: Jamie Nelson, Deputy
Facsimile: (619) 839—3895
andrew@ahillierlaw.com
Attorney for Plaintiff,
A. Sameh E1 Kharbawy
\DOONQ'JILUJN
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF FRESNO
A. SAMEH EL KHARBAWY, Case No.: 21CECG02214
10 Plaintiff,
PLAINTIFF’S REPLY BRIEF RELATED
TO PLAINTIFF’S MOTION TO LIFT
11
VS. STAY OF DISCOVERY
12 Dept: 503
BOARD OF TRUSTEES OF THE Judge: Hon. Kimberly A. Gaab
13
CALIFORNIA STATE UNIVERSITY;
DARRYL L. HAMM, an individual; Hearing Date: November 18, 2021
14
Hearing Time: 3:30 p.m.
LYNNETTE ZELEZNY, an individual;
15 JOSEPH l.CASTRO, an individual;
SAUL JIMENELSANDOVAL, an individual;
16 XUANNING FU, an individual;
17
AND DOES 1 through 50,
18 Defendants.
19
20
21
22
23
24
25
26
27
28
PLAINTIFF’S REPLY BRIEF RE: MOTION TO LIFT STAY OF DISCOVERY
_i_
I. INTRODUCTION
Defendant Board of Trustees of California State University’s Opposition (“Opposition”)
t0 Plaintiff A. Sameh E1 Kharbawy’s Motion to Lift the Discovery Stay (“the Motion”) is an
exercise in rewriting history. Since February 2018, Defendant has been sending monthly notices
to Plaintiff stating that his employment isbeing suspended (for 30 days at atime) so that Defendant
\DOONQ'JILUJN
can investigate allegations 0f Plaintiffs wrongdoing. Now, nearly four years and 44 suspension
notices later, Defendant claims that the majority 0f those notices were false. Defendant claims for
the first time in the Opposition that the real reason Plaintiff was suspended (at least since 2019)
was because the allegations against him were “sustained” (Opp., 17:20-21) without any due
10 processia ridiculous notion, considering Plaintiffs property interest in his public employment.
11 Defendant’s cavalier relationship with the truthiits shifting, changing rationales for
12 Plaintiffs suspensioniunderscore the necessity for the discovery requested in the Motion‘
13 Plaintiff is entitled to the information necessary to respond to Defendant’s allegations in the anti-
14 SLAPP Motion (whatever form they end up taking). And t0 that end, the Motion specifically
15 identified targeted discovery directly relevant to Defendant’s anti-SLAPP arguments. It isjustified
16 and necessary discovery. And none 0f Defendant’s arguments in the Opposition change that fact.
17 II. RESPONSE TO SECTION III(B): PLAINTIFF’S APPLICATION FOR THE
INSTANT MOTION WAS TIMELY
18
In Section III(B), Defendant claims, baldly, that Plaintiff did not make the instant motion
19
in a timely manner. Defendant regurgitates the same arguments it previously made in its failed
20
opposition to Plaintiffs ex parte application to set the instant motion hearing date. Defendant’s
21
own authority defeats its argument. The only case cited by Defendant (Lafayette Morehouse, Inc.
22
v. Chronicle Publishing C0. (1995) 37 Ca1.App.4th 855) did not touch upon the timeliness 0f
23
requests to liftthe discovery stay because no such request was made in that case. (Id. at 868.) The
24
opinion there merely reiterated the general notion that a “trial court. ..must liberally exercise its
25
discretion by authorizing reasonable and specified discovery timely petitioned for by a
26
plaintiff. ..when evidence to establish a prima facie case is reasonably shown to be held, or known,
27
by defendant 0r its agents and employees.” (Ibid) This isexactly what Plaintiff is arguing for here.
28
PLAINTIFF’S REPLY BRIEF RE: MOTION TO LIFT STAY OF DISCOVERY
_1 _
The only other authority cited by Defendant is the Weil Practice Guide, which Defendant
cites for the proposition that plaintiffs should not “wait until the [anti-SLAPP] hearing” to request
discovery. (0pp., 9:19-22.) And indeed, Plaintiff did not d0 so. Plaintiffrequested the court set the
instant motion before the opposition t0 the Anti-SLAPP motion was due. Thus, the request was
timely. Defendant has not cited law 0r authority establishing otherwise. Nothing here requires this
\DOONQ'JILUJN
Court t0 change its original decision to consider the Motion.
III. RESPONSE TO SECTION III(C)(1): THE SOUGHT DISCOVERY IS
APPROPRIATELY RESPONSIVE TO DEFENDANT’S ANTI-SLAPP CLAIMS
Defendant incorrectly asserts that Plaintiff must overcome its legal defenses (immunities,
privileges, and statutes 0f limitation) before the Court can liftthe discovery stay. (Opp., 10:20-22.)
10
The argument lacks any logical appeal, given that Plaintiff seeks discovery specifically t0 address
11
the applicability of those very same legal defenses. Defendant’s assertion would require Plaintiff
12
t0 substantively oppose the Motion before he has the information necessary t0 d0 so. That position
13
does not make sense and it isnot supported by law.
14
Neither case cited by Defendant holds that it is a plaintiff’s “burden to overcome [] other
15
legal defenses before a court can liftthe discovery stay,” as Defendant claims. (Opp., 10:14-15.)
16
Neither are even analogous to this matter. In Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th
17
903, the court held that n0 further discovery could alter the applicability 0f the litigation privilege
18
for demand letters because the information available to the Plaintiff was sufficient for such a legal
19
determination. (Id. at p. 919.) In Tutor-Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604, the
20
court denied the plaintiff” s motion for discovery because the “original request sought discovery on
21
factual issues that were conceded by [the defendant] in [the plaintiff s] favor.” (Id. at p. 619.) Thus,
22
in both cases, the discovery was not necessary to reply to the defendant’s anti-SLAPP motion.
23
That is not the case here as Plaintiff’s requested discovery isdirectly related to claims and
24
asserted defenses made by Defendant in the anti-SLAPP motion. For example, Defendant claims
25
that the official proceeding privilege applies and defeats one or more of Plaintiffs causes of action.
26
(Anti-SLAPP Mot, 27: 14-15.) For this privilege to apply, however, there must have been an
27
official proceeding. Defendant claims that the Wilke Fleury investigation was the official
28
PLAINTIFF’S REPLY BRIEF RE: MOTION TO LIFT STAY OF DISCOVERY
_2 _
proceeding and the privilege applies to the suspension notices as a result. (Ibid.) But, as fully
described in the Motion, Defendant continued to send suspension notices at a time itappears n0
investigation was ongoing. (See Mot., 3:1 7-5:5 .)The application 0f this privilege requires a factual
determination as to whether there was an official proceeding at the time Defendant issued these
notices, and if so, whether the notices were related t0 that official proceeding in such a way that
\DOONQ'JILUJN
the official proceeding privilege applies. Without this discovery, Plaintiff cannot adequately
address the applicability 0f this privilege.1
Thus, the discovery requested here pertains t0 facts and information directly related t0
defenses and arguments asserted by Defendant, solely in the possession of Defendant. In other
10 words, it is the exact type 0f discovery that warrants a lift 0f the stay. (The Garment Workers
11 Center v. Superior Court (2004) 117 Ca1.App.4th 1156, 1162.) Defendant’s arguments fail.
12 IV. RESPONSE TO SECTION III(C)(2): GOOD CAUSE EXISTS FOR DISCOVERY
RELATED TO DEFENDANT’S DEFECT NOTICES
13
Conspicuously absent from Defendant’s Opposition is a direct response to Plaintiffs
14
arguments regarding Cal. GOV. Code § 91 1.3(a). In the anti-SLAPP motion, Defendant argued that
15
Plaintiff’s second governmental tort claim notice was untimely. (Anti-SLAPP Mot, 26:22-25;
16
28:18-2921.) Section 911.3(a) requires a government entity send a defect notice t0 a claimant
17
within 45 days if it believes a Tort Claim notice is untimely. Failure to d0 so waives the
18
untimeliness defense. (Cal. Gov. Code. § 91 1‘3(b).) Good cause exists for lifting the discovery
19
stay to conduct targeted discovery to ascertain whether or not an untimeliness defect notice was
20
sent because if n0 such letter was provided, Defendant’s untimeliness argument in the anti-SLAPP
21
motion would be defeated. While Defendant’s Opposition briefly mentions the second tort claim
22
(Opp., 11220-123), Defendant does not address § 91 1.3 or defect notices at all.
23
Instead, Defendant cites Dixon v. City ofTurlock (219 Cal.App.3d 907) (“Dixon”) for the
24
general proposition that an appellate court “rejected [the] notion that [a] public entity must serve
25
[a] second rejection” notice? (Opp., 11228-1212.) This isa blatant misrepresentation of the court’s
26
27
1
As described below, the same istrue for discovery related t0any defect notices sent pursuantt0 Cal. Gov. Code §
28 91 1.3 and discovery related to Defendant’s “business purpose” affirmative defense. (See Sections IV-VI, infra.)
2
This is Defendant’s parenthetical description osz'xon, which did not include any direct quotation from the case text.
PLAINTIFF’S REPLY BRIEF RE: MOTION TO LIFT STAY OF DISCOVERY
_
3 _
holding; Dixon has nothing to do with general rejection notices. In Dixon, the plaintiff filed a tort
claim more than a year after the at-issue incident and then “amended” the claim a few weeks later.
(Dixon, 219 Cal.App.3d at 909.) The Dixon parties agreed that that first claim was rejected by the
governmental entity 0n the grounds 0f untimeliness through a defect notice, but n0 defect notice
was provided in response to the “amended” claim. (1d, at 912.) The court held, “Assuming the
\DOONQ'JILUJN
original claim was propeer reiected in full compliance With section 911.3 ...there is n0 reason
for the warning 0f timeliness to be repeated as an amended claim relates back to the original
claim. Thus, itappears appellant had actual notice regarding the untimeliness 0f her claim and n0
waiver occurred.” (Ibid., emphasis added.) Therefore, Dixon stands only for the idea that when a
10 governmental entity dutifully complies with § 91 1.3 and serves a proper timeliness defect notice
11 in response to a tort claim, itneed not send another in response t0 the amendment of that claim.
12 Here, Dixon is inapposite because, Plaintiff believes, Defendant failed to send a defect
13 notice in accordance with the requirements 0f § 91 1.3 for either the first 01'second claim. Plaintiff
14 never received such a notice (El Kharbawy Dec1., fl l7), and the declaration from the employee
15 who allegedly sent rejection notices t0 Plaintiff is silent as t0 any defect notice under § 91 1.3. (See
16 generally Declaration 0f Martha Guiditta.) T0 the extent Defendant is arguing, without any
17 evidentiary support, that an untimeliness defect notice was sent in response to Plaintiff’s first
18 claim, that only underscores the need for the discovery specifically identified. (See Mot, 8: 12-1 8.)
19 V. RESPONSE T0 SECTION III(C)(3): DISCOVERY REQUESTS RELATED TO
DEFENDANT’S ASSERTED OFFICIAL PROCEEDING PRIVILEGE ARE
20
PROPER.
21 Defendant asserts that “Plaintiff is asking the Court to liftthe stay to investigate whether
22 the allegations of misconduct in his original suspension notice was part of an ‘offlcial proceeding’
23 when made.” (Opp., 12: 17-1 8.) This is simply not true, and a futile attempt by Defendant to create
24 a strawman to oppose. The remainder 0f Defendant’s arguments on this point stern from its
25 inaccurate reframing of Plaintiff‘s position. Defendant’s attempt to misguide the Court is evident
26 from itslack of citation to Plaintiffs motion throughout most of itsargument.
27 To be clear, Plaintiff is seeking “targeted discovery related to ascertaining whether or not
28 Defendant was actually investigating Plaintiff’s conduct at the times it alleged an investigation
PLAINTIFF’S REPLY BRIEF RE: MOTION TO LIFT STAY OF DISCOVERY
_4 _
was ongoing.” (Mot., 8127-9: 1 .)The need for such discovery is obvious. Defendant claims that the
“official proceeding privilege” covers the suspension notices. (Anti-SLAPP Mot, 27:4—15.) But
“s‘
the official proceedings privilege only applies to a statement made 1n furtherance ofthe objects’”
0f the proceeding. (Hawran v. Hixson (2012) 209 Ca1.App.4th 256, 282 [quoting Action
Apartment Assn, Inc. v.City ofSanta Monica (2007) 41 Ca1.4th 1232, 1251].) The “connection or
\DOONQ'JILUJN
logical relation Which a communication must bear t0 the proceeding in order for the privilege t0
apply, is a functional connection, i.e., the communication must function as a necessary or useful
step in the [proceeding] process and must serve its purposes. .
.” (1d. at p.283 [quotations omitted].)
The official proceeding Defendant relies 0n in asserting the privilege (the Wilke Fleury
10 investigation) seems to have ended in October 2019. (Anti-SLAPP M0t., 10:21-22.) Thereafter,
11 Defendant continued to send suspension notices that falsely accused Plaintiff 0f wrongdoing and
12 falsely claimed that the Wilke Fleury investigation was ongoing. Therefore, there is a significant
13 question as t0 whether there was an official proceeding ongoing when these false statements were
14 made. If there was n0 official proceeding occurring 0r if the statements had no functional
15 connection t0 the official proceeding, then n0 privilege applies. The limited discovery requested
16 by Plaintiff seeks to answer these questions.
17 Defendant incorrectly claims that Plaintiff has all the information needed t0 respond on
18 this issue‘ (Opp., 14:25-15z4.) Not true. As detailed above and in Plaintiff’s motion, Plaintiffdoes
19 not have necessary information related t0 the timing and substance of investigatory procedures
20 employed by Defendant. (Mot, 9:2-7.) That information lies solely within Defendant’s possession.
21 Defendant concedes as much by providing a declaration from Defendant employee Kirsten Corey
22 in an attempt to “moot” Plaintiff’s motion. (Opp., 14:22-24.) However, Ms. Corey’s declaration,
23 much like the Opposition, does not address the relevant issue.
24 VI. RESPONSE TO SECTION III(C)(4): DISCOVERY REQUESTS RELATED T0
DEFENDANT’S ASSERTED “BUSINESS PURPOSE” DEFENSE ARE PROPER.
25
Defendant laments the fact that Plaintiff requests discovery related to Defendant’s
26
“legitimate business purpose” defense. But itwas Defendant who put this topic at issue by citing
27
the affirmative defense as a basis for relief in the anti-SLAPP motion. (Anti-SLAPP Motion,
28
PLAINTIFF’S REPLY BRIEF RE: MOTION TO LIFT STAY OF DISCOVERY
_
5 _
3 1219-3321.) Good cause to lift a discovery stay exists where there is “a showing that the specified
discovery isnecessary for the plaintiff to oppose the motion and is tailored to that end.” (Britts v.
Superior Court (2006) 145 Cal.App.4th 1112, 1125.) Plaintiff‘s requested discovery is proper
because it isnecessary to oppose Defendant’s own claims.
Perhaps recognizing this, and unable t0 legitimately oppose Plaintiffs Motion 0n legal
\DOONQ'JILUJN
grounds, Defendant attempts t0 inaccurately recast the Motion in various ways. First, Defendant
baselessly alleges that Plaintiff did not “specifically identify what additional facts he expects t0
uncover in discovery” related t0 pretext. (Opp., 16.) This is plainly not true. Plaintiff specifically
identified three areas of inquiry concerning pretext: (1) Defendant’s treatment of like employees;
10 (2) Defendant’s failure to follow its own procedures in suspending Plaintiff; and (3) the falsity 0f
11 Defendant’s proffered legitimate business reasons. (Mot, 9:1 1-12:6A) Plaintiff provided case law
12 demonstrating how each area is relevant t0 legal determinations at issue in this case. (Id. at 10:7-
13 1112.) Next, Plaintiff identified the specific discovery sought, and how itwould b6 sought. (Ibid)
14 Finally, Plaintiff specifically set forth the additional facts he expects t0 uncover through discovery.
15 For treatment oflike employees, “Plaintiffexpects t0 find that other employees Who did not engage
16 in protected activity were not subjected to years—long suspensions for allegations regarding
17 teaching practices 0r office hours.” (M0t., 1 1:9-1 1.) Regarding Defendant’s failure to follow
18 procedures, “Plaintiff expects to find that Defendant’s repeated suspension 0f Plaintiff—
19 purportedly t0 investigate claims itwas not investigating—constituted a significant deviation from
20 Defendant’s normal policies and practices.” (Mot, 11:15-18.) Regarding falsity, “Plaintiff expects
21 t0 find that Defendant’s allegations of wrongdoing are not factually supported,” including an
22 example 0f an allegation that has already been proven false. (Mot, 11221-1226; see also
23 Supplemental Declaration ofAndrew Hillier (“Hillier Supp. Decl.”) at 1T6.) What more specificity
24 could be required given that the information is solely within Defendant’s possession?
25 Second, through a series of manufactured claims 0f ignorance, Defendant alleges that the
26 requested discovery is “hopelessly undefined.” (Opp., 16:15-17:12.) But this is, again, a false
27 claim. Indeed, Defendant’s objections to the discovery requests border on bizarre. For example:
28
PLAINTIFF’S REPLY BRIEF RE: MOTION TO LIFT STAY OF DISCOVERY
_
6 _
0 Plaintiff requested discovery t0 see if “like” employees Who were accused of similar
transgressions as Plaintiff were treated in the same manner. (Mot, 11:5-11.) ln the
Opposition, Defendant asks, “Who is a like employee?” as if Defendant is unaware of
Which 0f its employees holds a position similar t0 Plaintiff (a tenured professor at CSU).
This is a ridiculous, clearly manufactured position. At any rate, Plaintiff removed all
ambiguity in this regard by specifically requesting information relating t0 suspension of
employees under Article 17 0f the identified Collective Bargaining Agreement (“CBA”),
a contract that only applies t0 academic units employed by CSU. (Mot, 1125-6.)
0 Plaintiff requested discovery relating to the substance and timing of Defendant’s
\DOONQ'JILUJN
investigation into Plaintiff’s conduct and the University’s related disciplinary policies and
procedures. (Mot, 11:12- 1 5.) In response, Defendant claims ignorance 0f what procedures
fall within the scope 0f Plaintiff s requested discovery. (Opp., 16:25.) Given the specificity
0f the request, the confusion must again be manufactured. However, if Defendant truly
does not know what policies and procedures it used t0 suspend Plaintiff s employment, that
would be a significant fact to know in evaluating pretext.
n Defendant further feigns ignorance of the adverse action Plaintiff is contesting. (Opp.,
10 16:26.) Defendant could easily locate that information because itis in the description 0f
Plaintiffs request: “Defendant’s repeated suspension 0f Plaintiff.” (Mot, 11:16.)
11
Third, Defendant miscasts Plaintiff‘s requests for discovery as overbroad and invasive.
12
(Opp., 16:17-17:12.) In reality, the requests (e.g., interrogatories regarding treatment of similarly
13
situated employees and requests for production of disciplinary policies and procedures) are
14
common and necessary in any retaliation case because of their relevance to legal issues addressed
15
in the Motion} (See Mot, 1027-1 1 :2.)
16
17
VII. RESPONSE T0 SECTION (III)(C)(4)(d): DISCOVERY RELATED To
PLAINTIFF’S SUSPENSIONS Is RELEVANT.
18 Defendant alleges that “a paid suspension is not an ‘adverse employment action’” and
19 therefore discovery related t0 the suspension irrelevant. 18:2-27.) Defendant offers two
is (Opp.,
20 purpofied justifications for this novel assertion: (1) the applicable CBA; and (2) foreign federal
21 court authority. Neither is compelling.
22 As to the CBA argument, Defendant inappropriately conflates “disciplinary action” (as
23 defined in the CBA) with “adverse employment action” as defined by law. (Opp., 1824—5.) Section
24 19.2 0f the applicable CBA defines a disciplinary action under the contract for the purposes 0f
25 determining access to an internal grievance process. (See EX. 5 t0 Mendoza—Miller Decl. ISO
26
3
It is who have been
truly difficult t0 believe that the population ofprofessors subjected to an “emergent” Article 17
27 suspension is prohibitively large, but to the extent there are legitimate scope or privacy issues, the requests and
responses can and will be tailoredlo address the issue. For example, the requests regarding similarly situated
28 employees can be limited to the past ten yearsand there are measures the parties can take to protect the privacy of
those individuals. Thus, these are not legitimate reasons t0 stay discovery of information responsive t0 the anti-SLAPP.
PLAINTIFF’S REPLY BRIEF RE: MOTION TO LIFT STAY OF DISCOVERY
_
7 _
CSU’s Anti-SLAPP at § 19.2.) It does not—and legally cannot—define What is to be considered
an adverse employment action under the Fair Employment and Housing Act 0r Cal. Lab. Code §
1102.5. A CBA cannot be invoked to bypass state law statutory protections: “When liability is
governed by independent state law, the bare fact that a [CBA] Will be consulted in the course of
state—law litigation” is not sufficient t0 invoke preemption. (Sciborski v. Pacific Bell Directory
\DOONQ'JILUJN
(2012) 205 Cal.App.4th 1152, 1164 (quotation omitted).) As much as it may want t0, Defendant
cannot contract around California laws prohibiting retaliation.
As t0 the legal argument, Defendant’s claim that paid leave cannot legally be considered
“adverse” is flatly wrong and appears to be disingenuous. Defendant exclusively cites non-
10 precedential, federal case law; however, under Ninth Circuit and California state precedent, a paid
11 leave 0f absence can constitute an adverse employment action. In Yanawitz v. L’Oreal USA, Inc.
12 (2005) 36 Ca1.4th 1028, 1051, the California Supreme Court held that an “adverse action” is one
13 that materially affects the terms, conditions, and privileges 0f employment. The Court found that
14 “retaliation claims are inherently fact-specific, and the impact of an employer’s action in a
15 particular case must be evaluated in context.” (Ibid.) “[T]he determination of Whether a particular
16 action 0r course of conduct rises to the level 0f actionable conduct should take into account the
17 unique circumstances of the affected employee as well as the workplace context of the claim.”
18 (Ibid.) Paid “administrative leave may constitute an adverse employment action” if such leave
19 negatively affects the terms and conditions of employment. (Whitehall v. County 0f San
20 Bernardino (2017) 17 Cal.App.5th 352, 366—367 [citing Dahlia v.Rodriguez (9th Cir. 2013) 735
21 F.3d 1060, 1078]; see also Horsford v. Board ofTrustees ofCalifornia State University (2005) 132
22 Ca1.App.4th 359 [finding months-long paid administrative leave an adverse employment action].)
23 Whitehall is strikingly analogous t0 the instant matter. As here, in Whitehall the plaintiff
24 was placed 0n administrative leave (t0 allegedly investigate her wrongdoing) six days after she
25 engaged in protected activity. (17 Cal.App.5th at 358-359.) The leave lasted two months. (Ibid)
26 The plaintiff sued for retaliation. (Ibid) As in this case, the Whitehall defendant argued “that
27 placing plaintiff on administrative leave was not an adverse employment action because she
28 remained 0n the payroll.” (1d. at366.) The Court 0f Appeal, however, rejected that argument. (Id.
PLAINTIFF’S REPLY BRIEF RE: MOTION TO LIFT STAY OF DISCOVERY
_
g _
at 366-367.) Since the paid leave negatively impacted the terms and conditions 0f employment and
because the leave was involuntary, the Whitehall court held that “the act of placing plaintiff 0n
administrative leave was an adverse employment action.” (Id. at 367.)
Given the similarities between Whitehall and the instant matter, it iscurious that Defendant
failed t0 cite the case (or similar cases Dahlia and Horsford) and instead opted t0 cite non-
\DOONQ'JILUJN
precedential, federal authority. (Opp., 18:13-27.) The choice is even more curious considering
Defendant’s counsel, Liebert Cassidy Whitmore (“LCW”) published a 2017 anicle containing
legal analysis of Whitehall and related authority: “To Be 0r Not t0 Be an Adverse Employment
Action i What is Paid Administrative Leave?” (Hillier Dec1., Ex. 1.)In the anicle, LCW attorneys
10 advise that paid administrative leave can be an adverse employment action in California, following
11 a detailed examination 0f Dahlia, Whitehall, and Horsford. (Ibid.) LCW specifically identified a
12 split between foreign federal circuits (Which d0 not recognize paid administrative leave as a
13 potential adverse employment action) and thC Ninth Circuit and California (which do). (119121.)That
14 information was not included in Defendant’s Opposition, but it should have been as California’s
15 binding, on-point authority directly contradicts Defendant’s legal claims.
16 VII. DEFENDANT’S NEW ARGUMENT REGARDING A SHIFT IN MOTIVATION
FOR THE SUSPENSIONS REQUIRES ADDITIONAL DISCOVERY
17
As discussed above, Defendant argues in the Opposition—for the first time—that its
18
motivation for suspending Plaintiffwas not t0 investigate Plaintiff (as had been claimed in every
19
suspension notice) but rather to punish Plaintiff based 0n the results of the investigation.
20
Defendant’s about—turn in itspurported rationale for suspending Plaintiff opens up a new required
21
area for discovery: the reason for the shift. An employer’s shift in purported rationales for the
22
adverse employment action constitutes significant evidence of illicit motivation. (See, e.g.,Payne
23
v. Norwest Corp. (9th Cir. 1997) 113 F.3d 1079,1080 (“A rational trier of fact could find that [the
24
employer's] varying reasons shows that the stated reason was pretextual...); Guz, supra, 24 Ca1.4th
25
at p. 363 (“an inference of dissembling may arise where the employer has given shifting,
26
contradictory, implausible, uninformed, or factually baseless justifications for its actions”).)
27
28
PLAINTIFF’S REPLY BRIEF RE: MOTION TO LIFT STAY OF DISCOVERY
_
9 _
Since February 2018, Defendant has “justified’ its monthly suspensions of Plaintiff‘s
employment 43 times on the grounds that an investigator “continue[d] to examine concerns”
regarding Plaintiffs teaching and professional responsibilities. (E1 Kharbawy Dec1., 1] 8; Ex. 1.)
NOW, Defendant claims that at some point during the past four years, that rationale shifted from
the need for an investigation t0 the results 0f that investigation. (Opp., 17222-1 8: When did this
1 .)
\DOONQ'JILUJN
rationale change? Why? Who made the decision t0 change? Why is this only being communicated
nowiafter a lawsuit has been filediand only in litigation briefs? The suspension notices state
that Defendant “will keep [Plaintiff] apprised 0f [his] employment status as decisions are made.”
(El Kharbawy Decl., Ex. 1.)Why, then, did Defendant fail t0 inform Plaintiff about the alleged
10 change in rationale for his suspensions?
11 These questions are directly pertinent to Plaintiff’s response to Defendant’s “legitimate
12 business purpose” defense asserted in the anti-SLAPP motion, and the answers are solely within
13 Defendant’s possession. Therefore, Plaintiff requests an additional area 0f discovery: special
14 interrogatories concerning the purported rationale(s) for Defendant’s suspensions of Plaintiff,
15 including identification 0f (1) when thB rationale changed; (2) why itchanged; (3) Who made the
16 change; (4) other transgressions for which professors have been placed on Article 17 suspensions
17 based on “sustained” allegations of wrongdoing; and (5) the length ofArticle 17 suspensions for
18 other professors based on “sustained” allegations 0f wrongdoing. Plaintiff also requests leave to
19 propound requests for production 0f documents relating to the change in Defendant’s purported
20 rationale for Plaintiff’s suspensions. Plaintiff expects to find that this alleged shift in rationales
21 never, in fact, happened; rather, this is an ex post fabrication to try to explain away the false
22 suspension notices. (Hillier Supp. Decl., 117.)
23
24 Dated: November 10, 2021 Respectfully Submitted,
25
26
27
Andrew E. ’[Tfl'hen
28 Attorney for Plaintiff,
A. Sameh El Kharbawy
PLAINTIFF’S REPLY BRIEF RE: MOTION TO LIFT STAY OF DISCOVERY
_ 10_
Preview
Andrew Hillier (State Bar No. 295779) Hillier Law E-FILED 600 W. Broadway, Suite 700 11/10/2021 11:38 PM San Diego, CA 92101 Superior Court of California Telephone: (619) 500-7906 County of Fresno By: Jamie Nelson, Deputy Facsimile: (619) 839—3895 andrew@ahillierlaw.com Attorney for Plaintiff, A. Sameh E1 Kharbawy \DOONQ'JILUJN SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO A. SAMEH EL KHARBAWY, Case No.: 21CECG02214 10 Plaintiff, PLAINTIFF’S REPLY BRIEF RELATED TO PLAINTIFF’S MOTION TO LIFT 11 VS. STAY OF DISCOVERY 12 Dept: 503 BOARD OF TRUSTEES OF THE Judge: Hon. Kimberly A. Gaab 13 CALIFORNIA STATE UNIVERSITY; DARRYL L. HAMM, an individual; Hearing Date: November 18, 2021 14 Hearing Time: 3:30 p.m. LYNNETTE ZELEZNY, an individual; 15 JOSEPH l.CASTRO, an individual; SAUL JIMENELSANDOVAL, an individual; 16 XUANNING FU, an individual; 17 AND DOES 1 through 50, 18 Defendants. 19 20 21 22 23 24 25 26 27 28 PLAINTIFF’S REPLY BRIEF RE: MOTION TO LIFT STAY OF DISCOVERY _i_ I. INTRODUCTION Defendant Board of Trustees of California State University’s Opposition (“Opposition”) t0 Plaintiff A. Sameh E1 Kharbawy’s Motion to Lift the Discovery Stay (“the Motion”) is an exercise in rewriting history. Since February 2018, Defendant has been sending monthly notices to Plaintiff stating that his employment isbeing suspended (for 30 days at atime) so that Defendant \DOONQ'JILUJN can investigate allegations 0f Plaintiffs wrongdoing. Now, nearly four years and 44 suspension notices later, Defendant claims that the majority 0f those notices were false. Defendant claims for the first time in the Opposition that the real reason Plaintiff was suspended (at least since 2019) was because the allegations against him were “sustained” (Opp., 17:20-21) without any due 10 processia ridiculous notion, considering Plaintiffs property interest in his public employment. 11 Defendant’s cavalier relationship with the truthiits shifting, changing rationales for 12 Plaintiffs suspensioniunderscore the necessity for the discovery requested in the Motion‘ 13 Plaintiff is entitled to the information necessary to respond to Defendant’s allegations in the anti- 14 SLAPP Motion (whatever form they end up taking). And t0 that end, the Motion specifically 15 identified targeted discovery directly relevant to Defendant’s anti-SLAPP arguments. It isjustified 16 and necessary discovery. And none 0f Defendant’s arguments in the Opposition change that fact. 17 II. RESPONSE TO SECTION III(B): PLAINTIFF’S APPLICATION FOR THE INSTANT MOTION WAS TIMELY 18 In Section III(B), Defendant claims, baldly, that Plaintiff did not make the instant motion 19 in a timely manner. Defendant regurgitates the same arguments it previously made in its failed 20 opposition to Plaintiffs ex parte application to set the instant motion hearing date. Defendant’s 21 own authority defeats its argument. The only case cited by Defendant (Lafayette Morehouse, Inc. 22 v. Chronicle Publishing C0. (1995) 37 Ca1.App.4th 855) did not touch upon the timeliness 0f 23 requests to liftthe discovery stay because no such request was made in that case. (Id. at 868.) The 24 opinion there merely reiterated the general notion that a “trial court. ..must liberally exercise its 25 discretion by authorizing reasonable and specified discovery timely petitioned for by a 26 plaintiff. ..when evidence to establish a prima facie case is reasonably shown to be held, or known, 27 by defendant 0r its agents and employees.” (Ibid) This isexactly what Plaintiff is arguing for here. 28 PLAINTIFF’S REPLY BRIEF RE: MOTION TO LIFT STAY OF DISCOVERY _1 _ The only other authority cited by Defendant is the Weil Practice Guide, which Defendant cites for the proposition that plaintiffs should not “wait until the [anti-SLAPP] hearing” to request discovery. (0pp., 9:19-22.) And indeed, Plaintiff did not d0 so. Plaintiffrequested the court set the instant motion before the opposition t0 the Anti-SLAPP motion was due. Thus, the request was timely. Defendant has not cited law 0r authority establishing otherwise. Nothing here requires this \DOONQ'JILUJN Court t0 change its original decision to consider the Motion. III. RESPONSE TO SECTION III(C)(1): THE SOUGHT DISCOVERY IS APPROPRIATELY RESPONSIVE TO DEFENDANT’S ANTI-SLAPP CLAIMS Defendant incorrectly asserts that Plaintiff must overcome its legal defenses (immunities, privileges, and statutes 0f limitation) before the Court can liftthe discovery stay. (Opp., 10:20-22.) 10 The argument lacks any logical appeal, given that Plaintiff seeks discovery specifically t0 address 11 the applicability of those very same legal defenses. Defendant’s assertion would require Plaintiff 12 t0 substantively oppose the Motion before he has the information necessary t0 d0 so. That position 13 does not make sense and it isnot supported by law. 14 Neither case cited by Defendant holds that it is a plaintiff’s “burden to overcome [] other 15 legal defenses before a court can liftthe discovery stay,” as Defendant claims. (Opp., 10:14-15.) 16 Neither are even analogous to this matter. In Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 17 903, the court held that n0 further discovery could alter the applicability 0f the litigation privilege 18 for demand letters because the information available to the Plaintiff was sufficient for such a legal 19 determination. (Id. at p. 919.) In Tutor-Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604, the 20 court denied the plaintiff” s motion for discovery because the “original request sought discovery on 21 factual issues that were conceded by [the defendant] in [the plaintiff s] favor.” (Id. at p. 619.) Thus, 22 in both cases, the discovery was not necessary to reply to the defendant’s anti-SLAPP motion. 23 That is not the case here as Plaintiff’s requested discovery isdirectly related to claims and 24 asserted defenses made by Defendant in the anti-SLAPP motion. For example, Defendant claims 25 that the official proceeding privilege applies and defeats one or more of Plaintiffs causes of action. 26 (Anti-SLAPP Mot, 27: 14-15.) For this privilege to apply, however, there must have been an 27 official proceeding. Defendant claims that the Wilke Fleury investigation was the official 28 PLAINTIFF’S REPLY BRIEF RE: MOTION TO LIFT STAY OF DISCOVERY _2 _ proceeding and the privilege applies to the suspension notices as a result. (Ibid.) But, as fully described in the Motion, Defendant continued to send suspension notices at a time itappears n0 investigation was ongoing. (See Mot., 3:1 7-5:5 .)The application 0f this privilege requires a factual determination as to whether there was an official proceeding at the time Defendant issued these notices, and if so, whether the notices were related t0 that official proceeding in such a way that \DOONQ'JILUJN the official proceeding privilege applies. Without this discovery, Plaintiff cannot adequately address the applicability 0f this privilege.1 Thus, the discovery requested here pertains t0 facts and information directly related t0 defenses and arguments asserted by Defendant, solely in the possession of Defendant. In other 10 words, it is the exact type 0f discovery that warrants a lift 0f the stay. (The Garment Workers 11 Center v. Superior Court (2004) 117 Ca1.App.4th 1156, 1162.) Defendant’s arguments fail. 12 IV. RESPONSE TO SECTION III(C)(2): GOOD CAUSE EXISTS FOR DISCOVERY RELATED TO DEFENDANT’S DEFECT NOTICES 13 Conspicuously absent from Defendant’s Opposition is a direct response to Plaintiffs 14 arguments regarding Cal. GOV. Code § 91 1.3(a). In the anti-SLAPP motion, Defendant argued that 15 Plaintiff’s second governmental tort claim notice was untimely. (Anti-SLAPP Mot, 26:22-25; 16 28:18-2921.) Section 911.3(a) requires a government entity send a defect notice t0 a claimant 17 within 45 days if it believes a Tort Claim notice is untimely. Failure to d0 so waives the 18 untimeliness defense. (Cal. Gov. Code. § 91 1‘3(b).) Good cause exists for lifting the discovery 19 stay to conduct targeted discovery to ascertain whether or not an untimeliness defect notice was 20 sent because if n0 such letter was provided, Defendant’s untimeliness argument in the anti-SLAPP 21 motion would be defeated. While Defendant’s Opposition briefly mentions the second tort claim 22 (Opp., 11220-123), Defendant does not address § 91 1.3 or defect notices at all. 23 Instead, Defendant cites Dixon v. City ofTurlock (219 Cal.App.3d 907) (“Dixon”) for the 24 general proposition that an appellate court “rejected [the] notion that [a] public entity must serve 25 [a] second rejection” notice? (Opp., 11228-1212.) This isa blatant misrepresentation of the court’s 26 27 1 As described below, the same istrue for discovery related t0any defect notices sent pursuantt0 Cal. Gov. Code § 28 91 1.3 and discovery related to Defendant’s “business purpose” affirmative defense. (See Sections IV-VI, infra.) 2 This is Defendant’s parenthetical description osz'xon, which did not include any direct quotation from the case text. PLAINTIFF’S REPLY BRIEF RE: MOTION TO LIFT STAY OF DISCOVERY _ 3 _ holding; Dixon has nothing to do with general rejection notices. In Dixon, the plaintiff filed a tort claim more than a year after the at-issue incident and then “amended” the claim a few weeks later. (Dixon, 219 Cal.App.3d at 909.) The Dixon parties agreed that that first claim was rejected by the governmental entity 0n the grounds 0f untimeliness through a defect notice, but n0 defect notice was provided in response to the “amended” claim. (1d, at 912.) The court held, “Assuming the \DOONQ'JILUJN original claim was propeer reiected in full compliance With section 911.3 ...there is n0 reason for the warning 0f timeliness to be repeated as an amended claim relates back to the original claim. Thus, itappears appellant had actual notice regarding the untimeliness 0f her claim and n0 waiver occurred.” (Ibid., emphasis added.) Therefore, Dixon stands only for the idea that when a 10 governmental entity dutifully complies with § 91 1.3 and serves a proper timeliness defect notice 11 in response to a tort claim, itneed not send another in response t0 the amendment of that claim. 12 Here, Dixon is inapposite because, Plaintiff believes, Defendant failed to send a defect 13 notice in accordance with the requirements 0f § 91 1.3 for either the first 01'second claim. Plaintiff 14 never received such a notice (El Kharbawy Dec1., fl l7), and the declaration from the employee 15 who allegedly sent rejection notices t0 Plaintiff is silent as t0 any defect notice under § 91 1.3. (See 16 generally Declaration 0f Martha Guiditta.) T0 the extent Defendant is arguing, without any 17 evidentiary support, that an untimeliness defect notice was sent in response to Plaintiff’s first 18 claim, that only underscores the need for the discovery specifically identified. (See Mot, 8: 12-1 8.) 19 V. RESPONSE T0 SECTION III(C)(3): DISCOVERY REQUESTS RELATED TO DEFENDANT’S ASSERTED OFFICIAL PROCEEDING PRIVILEGE ARE 20 PROPER. 21 Defendant asserts that “Plaintiff is asking the Court to liftthe stay to investigate whether 22 the allegations of misconduct in his original suspension notice was part of an ‘offlcial proceeding’ 23 when made.” (Opp., 12: 17-1 8.) This is simply not true, and a futile attempt by Defendant to create 24 a strawman to oppose. The remainder 0f Defendant’s arguments on this point stern from its 25 inaccurate reframing of Plaintiff‘s position. Defendant’s attempt to misguide the Court is evident 26 from itslack of citation to Plaintiffs motion throughout most of itsargument. 27 To be clear, Plaintiff is seeking “targeted discovery related to ascertaining whether or not 28 Defendant was actually investigating Plaintiff’s conduct at the times it alleged an investigation PLAINTIFF’S REPLY BRIEF RE: MOTION TO LIFT STAY OF DISCOVERY _4 _ was ongoing.” (Mot., 8127-9: 1 .)The need for such discovery is obvious. Defendant claims that the “official proceeding privilege” covers the suspension notices. (Anti-SLAPP Mot, 27:4—15.) But “s‘ the official proceedings privilege only applies to a statement made 1n furtherance ofthe objects’” 0f the proceeding. (Hawran v. Hixson (2012) 209 Ca1.App.4th 256, 282 [quoting Action Apartment Assn, Inc. v.City ofSanta Monica (2007) 41 Ca1.4th 1232, 1251].) The “connection or \DOONQ'JILUJN logical relation Which a communication must bear t0 the proceeding in order for the privilege t0 apply, is a functional connection, i.e., the communication must function as a necessary or useful step in the [proceeding] process and must serve its purposes. . .” (1d. at p.283 [quotations omitted].) The official proceeding Defendant relies 0n in asserting the privilege (the Wilke Fleury 10 investigation) seems to have ended in October 2019. (Anti-SLAPP M0t., 10:21-22.) Thereafter, 11 Defendant continued to send suspension notices that falsely accused Plaintiff 0f wrongdoing and 12 falsely claimed that the Wilke Fleury investigation was ongoing. Therefore, there is a significant 13 question as t0 whether there was an official proceeding ongoing when these false statements were 14 made. If there was n0 official proceeding occurring 0r if the statements had no functional 15 connection t0 the official proceeding, then n0 privilege applies. The limited discovery requested 16 by Plaintiff seeks to answer these questions. 17 Defendant incorrectly claims that Plaintiff has all the information needed t0 respond on 18 this issue‘ (Opp., 14:25-15z4.) Not true. As detailed above and in Plaintiff’s motion, Plaintiffdoes 19 not have necessary information related t0 the timing and substance of investigatory procedures 20 employed by Defendant. (Mot, 9:2-7.) That information lies solely within Defendant’s possession. 21 Defendant concedes as much by providing a declaration from Defendant employee Kirsten Corey 22 in an attempt to “moot” Plaintiff’s motion. (Opp., 14:22-24.) However, Ms. Corey’s declaration, 23 much like the Opposition, does not address the relevant issue. 24 VI. RESPONSE TO SECTION III(C)(4): DISCOVERY REQUESTS RELATED T0 DEFENDANT’S ASSERTED “BUSINESS PURPOSE” DEFENSE ARE PROPER. 25 Defendant laments the fact that Plaintiff requests discovery related to Defendant’s 26 “legitimate business purpose” defense. But itwas Defendant who put this topic at issue by citing 27 the affirmative defense as a basis for relief in the anti-SLAPP motion. (Anti-SLAPP Motion, 28 PLAINTIFF’S REPLY BRIEF RE: MOTION TO LIFT STAY OF DISCOVERY _ 5 _ 3 1219-3321.) Good cause to lift a discovery stay exists where there is “a showing that the specified discovery isnecessary for the plaintiff to oppose the motion and is tailored to that end.” (Britts v. Superior Court (2006) 145 Cal.App.4th 1112, 1125.) Plaintiff‘s requested discovery is proper because it isnecessary to oppose Defendant’s own claims. Perhaps recognizing this, and unable t0 legitimately oppose Plaintiffs Motion 0n legal \DOONQ'JILUJN grounds, Defendant attempts t0 inaccurately recast the Motion in various ways. First, Defendant baselessly alleges that Plaintiff did not “specifically identify what additional facts he expects t0 uncover in discovery” related t0 pretext. (Opp., 16.) This is plainly not true. Plaintiff specifically identified three areas of inquiry concerning pretext: (1) Defendant’s treatment of like employees; 10 (2) Defendant’s failure to follow its own procedures in suspending Plaintiff; and (3) the falsity 0f 11 Defendant’s proffered legitimate business reasons. (Mot, 9:1 1-12:6A) Plaintiff provided case law 12 demonstrating how each area is relevant t0 legal determinations at issue in this case. (Id. at 10:7- 13 1112.) Next, Plaintiff identified the specific discovery sought, and how itwould b6 sought. (Ibid) 14 Finally, Plaintiff specifically set forth the additional facts he expects t0 uncover through discovery. 15 For treatment oflike employees, “Plaintiffexpects t0 find that other employees Who did not engage 16 in protected activity were not subjected to years—long suspensions for allegations regarding 17 teaching practices 0r office hours.” (M0t., 1 1:9-1 1.) Regarding Defendant’s failure to follow 18 procedures, “Plaintiff expects to find that Defendant’s repeated suspension 0f Plaintiff— 19 purportedly t0 investigate claims itwas not investigating—constituted a significant deviation from 20 Defendant’s normal policies and practices.” (Mot, 11:15-18.) Regarding falsity, “Plaintiff expects 21 t0 find that Defendant’s allegations of wrongdoing are not factually supported,” including an 22 example 0f an allegation that has already been proven false. (Mot, 11221-1226; see also 23 Supplemental Declaration ofAndrew Hillier (“Hillier Supp. Decl.”) at 1T6.) What more specificity 24 could be required given that the information is solely within Defendant’s possession? 25 Second, through a series of manufactured claims 0f ignorance, Defendant alleges that the 26 requested discovery is “hopelessly undefined.” (Opp., 16:15-17:12.) But this is, again, a false 27 claim. Indeed, Defendant’s objections to the discovery requests border on bizarre. For example: 28 PLAINTIFF’S REPLY BRIEF RE: MOTION TO LIFT STAY OF DISCOVERY _ 6 _ 0 Plaintiff requested discovery t0 see if “like” employees Who were accused of similar transgressions as Plaintiff were treated in the same manner. (Mot, 11:5-11.) ln the Opposition, Defendant asks, “Who is a like employee?” as if Defendant is unaware of Which 0f its employees holds a position similar t0 Plaintiff (a tenured professor at CSU). This is a ridiculous, clearly manufactured position. At any rate, Plaintiff removed all ambiguity in this regard by specifically requesting information relating t0 suspension of employees under Article 17 0f the identified Collective Bargaining Agreement (“CBA”), a contract that only applies t0 academic units employed by CSU. (Mot, 1125-6.) 0 Plaintiff requested discovery relating to the substance and timing of Defendant’s \DOONQ'JILUJN investigation into Plaintiff’s conduct and the University’s related disciplinary policies and procedures. (Mot, 11:12- 1 5.) In response, Defendant claims ignorance 0f what procedures fall within the scope 0f Plaintiff s requested discovery. (Opp., 16:25.) Given the specificity 0f the request, the confusion must again be manufactured. However, if Defendant truly does not know what policies and procedures it used t0 suspend Plaintiff s employment, that would be a significant fact to know in evaluating pretext. n Defendant further feigns ignorance of the adverse action Plaintiff is contesting. (Opp., 10 16:26.) Defendant could easily locate that information because itis in the description 0f Plaintiffs request: “Defendant’s repeated suspension 0f Plaintiff.” (Mot, 11:16.) 11 Third, Defendant miscasts Plaintiff‘s requests for discovery as overbroad and invasive. 12 (Opp., 16:17-17:12.) In reality, the requests (e.g., interrogatories regarding treatment of similarly 13 situated employees and requests for production of disciplinary policies and procedures) are 14 common and necessary in any retaliation case because of their relevance to legal issues addressed 15 in the Motion} (See Mot, 1027-1 1 :2.) 16 17 VII. RESPONSE T0 SECTION (III)(C)(4)(d): DISCOVERY RELATED To PLAINTIFF’S SUSPENSIONS Is RELEVANT. 18 Defendant alleges that “a paid suspension is not an ‘adverse employment action’” and 19 therefore discovery related t0 the suspension irrelevant. 18:2-27.) Defendant offers two is (Opp., 20 purpofied justifications for this novel assertion: (1) the applicable CBA; and (2) foreign federal 21 court authority. Neither is compelling. 22 As to the CBA argument, Defendant inappropriately conflates “disciplinary action” (as 23 defined in the CBA) with “adverse employment action” as defined by law. (Opp., 1824—5.) Section 24 19.2 0f the applicable CBA defines a disciplinary action under the contract for the purposes 0f 25 determining access to an internal grievance process. (See EX. 5 t0 Mendoza—Miller Decl. ISO 26 3 It is who have been truly difficult t0 believe that the population ofprofessors subjected to an “emergent” Article 17 27 suspension is prohibitively large, but to the extent there are legitimate scope or privacy issues, the requests and responses can and will be tailoredlo address the issue. For example, the requests regarding similarly situated 28 employees can be limited to the past ten yearsand there are measures the parties can take to protect the privacy of those individuals. Thus, these are not legitimate reasons t0 stay discovery of information responsive t0 the anti-SLAPP. PLAINTIFF’S REPLY BRIEF RE: MOTION TO LIFT STAY OF DISCOVERY _ 7 _ CSU’s Anti-SLAPP at § 19.2.) It does not—and legally cannot—define What is to be considered an adverse employment action under the Fair Employment and Housing Act 0r Cal. Lab. Code § 1102.5. A CBA cannot be invoked to bypass state law statutory protections: “When liability is governed by independent state law, the bare fact that a [CBA] Will be consulted in the course of state—law litigation” is not sufficient t0 invoke preemption. (Sciborski v. Pacific Bell Directory \DOONQ'JILUJN (2012) 205 Cal.App.4th 1152, 1164 (quotation omitted).) As much as it may want t0, Defendant cannot contract around California laws prohibiting retaliation. As t0 the legal argument, Defendant’s claim that paid leave cannot legally be considered “adverse” is flatly wrong and appears to be disingenuous. Defendant exclusively cites non- 10 precedential, federal case law; however, under Ninth Circuit and California state precedent, a paid 11 leave 0f absence can constitute an adverse employment action. In Yanawitz v. L’Oreal USA, Inc. 12 (2005) 36 Ca1.4th 1028, 1051, the California Supreme Court held that an “adverse action” is one 13 that materially affects the terms, conditions, and privileges 0f employment. The Court found that 14 “retaliation claims are inherently fact-specific, and the impact of an employer’s action in a 15 particular case must be evaluated in context.” (Ibid.) “[T]he determination of Whether a particular 16 action 0r course of conduct rises to the level 0f actionable conduct should take into account the 17 unique circumstances of the affected employee as well as the workplace context of the claim.” 18 (Ibid.) Paid “administrative leave may constitute an adverse employment action” if such leave 19 negatively affects the terms and conditions of employment. (Whitehall v. County 0f San 20 Bernardino (2017) 17 Cal.App.5th 352, 366—367 [citing Dahlia v.Rodriguez (9th Cir. 2013) 735 21 F.3d 1060, 1078]; see also Horsford v. Board ofTrustees ofCalifornia State University (2005) 132 22 Ca1.App.4th 359 [finding months-long paid administrative leave an adverse employment action].) 23 Whitehall is strikingly analogous t0 the instant matter. As here, in Whitehall the plaintiff 24 was placed 0n administrative leave (t0 allegedly investigate her wrongdoing) six days after she 25 engaged in protected activity. (17 Cal.App.5th at 358-359.) The leave lasted two months. (Ibid) 26 The plaintiff sued for retaliation. (Ibid) As in this case, the Whitehall defendant argued “that 27 placing plaintiff on administrative leave was not an adverse employment action because she 28 remained 0n the payroll.” (1d. at366.) The Court 0f Appeal, however, rejected that argument. (Id. PLAINTIFF’S REPLY BRIEF RE: MOTION TO LIFT STAY OF DISCOVERY _ g _ at 366-367.) Since the paid leave negatively impacted the terms and conditions 0f employment and because the leave was involuntary, the Whitehall court held that “the act of placing plaintiff 0n administrative leave was an adverse employment action.” (Id. at 367.) Given the similarities between Whitehall and the instant matter, it iscurious that Defendant failed t0 cite the case (or similar cases Dahlia and Horsford) and instead opted t0 cite non- \DOONQ'JILUJN precedential, federal authority. (Opp., 18:13-27.) The choice is even more curious considering Defendant’s counsel, Liebert Cassidy Whitmore (“LCW”) published a 2017 anicle containing legal analysis of Whitehall and related authority: “To Be 0r Not t0 Be an Adverse Employment Action i What is Paid Administrative Leave?” (Hillier Dec1., Ex. 1.)In the anicle, LCW attorneys 10 advise that paid administrative leave can be an adverse employment action in California, following 11 a detailed examination 0f Dahlia, Whitehall, and Horsford. (Ibid.) LCW specifically identified a 12 split between foreign federal circuits (Which d0 not recognize paid administrative leave as a 13 potential adverse employment action) and thC Ninth Circuit and California (which do). (119121.)That 14 information was not included in Defendant’s Opposition, but it should have been as California’s 15 binding, on-point authority directly contradicts Defendant’s legal claims. 16 VII. DEFENDANT’S NEW ARGUMENT REGARDING A SHIFT IN MOTIVATION FOR THE SUSPENSIONS REQUIRES ADDITIONAL DISCOVERY 17 As discussed above, Defendant argues in the Opposition—for the first time—that its 18 motivation for suspending Plaintiffwas not t0 investigate Plaintiff (as had been claimed in every 19 suspension notice) but rather to punish Plaintiff based 0n the results of the investigation. 20 Defendant’s about—turn in itspurported rationale for suspending Plaintiff opens up a new required 21 area for discovery: the reason for the shift. An employer’s shift in purported rationales for the 22 adverse employment action constitutes significant evidence of illicit motivation. (See, e.g.,Payne 23 v. Norwest Corp. (9th Cir. 1997) 113 F.3d 1079,1080 (“A rational trier of fact could find that [the 24 employer's] varying reasons shows that the stated reason was pretextual...); Guz, supra, 24 Ca1.4th 25 at p. 363 (“an inference of dissembling may arise where the employer has given shifting, 26 contradictory, implausible, uninformed, or factually baseless justifications for its actions”).) 27 28 PLAINTIFF’S REPLY BRIEF RE: MOTION TO LIFT STAY OF DISCOVERY _ 9 _ Since February 2018, Defendant has “justified’ its monthly suspensions of Plaintiff‘s employment 43 times on the grounds that an investigator “continue[d] to examine concerns” regarding Plaintiffs teaching and professional responsibilities. (E1 Kharbawy Dec1., 1] 8; Ex. 1.) NOW, Defendant claims that at some point during the past four years, that rationale shifted from the need for an investigation t0 the results 0f that investigation. (Opp., 17222-1 8: When did this 1 .) \DOONQ'JILUJN rationale change? Why? Who made the decision t0 change? Why is this only being communicated nowiafter a lawsuit has been filediand only in litigation briefs? The suspension notices state that Defendant “will keep [Plaintiff] apprised 0f [his] employment status as decisions are made.” (El Kharbawy Decl., Ex. 1.)Why, then, did Defendant fail t0 inform Plaintiff about the alleged 10 change in rationale for his suspensions? 11 These questions are directly pertinent to Plaintiff’s response to Defendant’s “legitimate 12 business purpose” defense asserted in the anti-SLAPP motion, and the answers are solely within 13 Defendant’s possession. Therefore, Plaintiff requests an additional area 0f discovery: special 14 interrogatories concerning the purported rationale(s) for Defendant’s suspensions of Plaintiff, 15 including identification 0f (1) when thB rationale changed; (2) why itchanged; (3) Who made the 16 change; (4) other transgressions for which professors have been placed on Article 17 suspensions 17 based on “sustained” allegations of wrongdoing; and (5) the length ofArticle 17 suspensions for 18 other professors based on “sustained” allegations 0f wrongdoing. Plaintiff also requests leave to 19 propound requests for production 0f documents relating to the change in Defendant’s purported 20 rationale for Plaintiff’s suspensions. Plaintiff expects to find that this alleged shift in rationales 21 never, in fact, happened; rather, this is an ex post fabrication to try to explain away the false 22 suspension notices. (Hillier Supp. Decl., 117.) 23 24 Dated: November 10, 2021 Respectfully Submitted, 25 26 27 Andrew E. ’[Tfl'hen 28 Attorney for Plaintiff, A. Sameh El Kharbawy PLAINTIFF’S REPLY BRIEF RE: MOTION TO LIFT STAY OF DISCOVERY _ 10_