Preview
JesseJ. Maddox, Bar No. 219091
jmaddox@Icwlegal.com E-FILED
Nathan T. Jackson, Bar No. 285620 11/18/2021 5:30 PM
jacksor Lcwl com. Superior Court of California
County of Fresno
LIEBERT CASSIDY WHITMORE
A Professional Law Corporation By: |. Herrera, Deputy
5250 North Palm Ave, Suite 310
Fresno, Califomia 93704
Telephone: 559.256.7800
Facsimile: 559.449.4535
Attomeys for Defendants BOARD OF TRUSTEES OF
CALIFORNIA STATE UNIVERSITY, DARRYL L. HAMM,
LY NNETTE ZELEZNY, and XUANNING FU
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF FRESNO
11
12 A. SAMEH EL KHARBAWY, Case No.: 21CECG02214
gas
13 Plaintiff, [ASSIGNED FOR ALL PURPOSES TO HON.
KIMBERLY GAAB, DEPT. 503]
Bas 14
see
Vv.
Complaint Filed: October 23, 2020
15
a8 BOARD OF TRUSTEES OF
CALIFORNIA STATE UNIVERSITY ; DEFENDANT LYNNETTE ZELEZNY’S
tin
16 DARRYL L. HAMM, an individual; NOTICE OF DEMURRER AND DEMURRER
17 LY NNETTE ZELEZNY, an individual; TO PLAINTIFF A. SAMFH EL
JOSEPH I. CASTRO, an individual; KHARBAWY’S COMPLAINT;
18 SAUL JIMENEZ-SANDOVAL, an MEMORANDUM OF POINTS AND
individual; XUANNING FU, an AUTHORITIES IN SUPPORT THEREOF
19 individual; AND DOES 1 through 50,
20 Date: May 4, 2022
Defendants. Time: 3:30 p.m.
21 Dept: 503
22
(«Exempt from filing fees pursuant to Gov.
23
Code, § 6108.)
24.
25 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
26 PLEASE TAKE NOTICE that on May 4, 2022, at 3:30 p.m., or as soon thereafter
as the
27 matter
may be heard in Department 503 of the Fresno County Superior Court, located at 1130 O
28 Street, Fresno, CA 93724, Defendant Lynnette Zelezny (“President Zelezny”) will and hereby does
1
Defendant Lynnette Zelezny’ s Notice of Demurrer and Demurrer
to Plaintiffs Complaint
9834806.3 FROO7-003
move this Court for an order sustaining her demurrer to Plaintiff A. Sameh El Kharbawy’s
(“Plaintiff”) Complaint (“Complaint”) without leave to amend.
President Zelezny demurs to Plaintiff's Complaint with respect to all claims asserted against
her pursuant to Code of Civil Procedure section 430.10(a), (e), and (f) including the second, third.
fourth, fifth, seventh, and tenth causes of action, on the grounds set forth in the attached demurrer
which is hereby incorporated by reference. This demurrer is based on this Notice of Demurrer, the
Demurrer, the declaration of Nathan T. Jackson, the accompanying Memorandum of Points and
Authorities and Request for Judicial Notice, all pleadings, papers, and records on file herein, and
any such further matters or evidence that may be presented at or before the hearing on this demurrer.
10 Statutory Meet & Confe!
11 The Parties have met and conferred in writing and by phone, and have been unable to reach
ge 12 an agreement prior to the filing of this demurrer. (Jackson Decl. at §{ 3-7, Exhs. B-F.)
13
14
a Dated: November 18, 2021 LIEBERT CASSIDY WHITMORE
» Lk-—
15
3& 2sou 16
<&
17
Jesse J.Maddox /
18 Nathan T. addon /
Attorneys for Defendants BOARD OF
19 TRUSTEES OF CALIFORNIA STATE
UNIVERSITY, DARRYLL. HAMM.
20
LYNNETTE ZELEZNY, and XUANNING FU
21
22
23
24
25
26
27
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2
Defendant Lynnette Zelezny’s Notice of Demurrer and Demurrer to Plaintiff's Complaint
9834806.3 FRO07-003
DEMURRER
DEMURRER TO SECOND CAUSE OF ACTION
1 The second cause of action for FEHA race/national origin harassment fails as a
matter of law, because it is barred by the applicable statute of limitations. (Code Civ. Proc., §
430.10(a), (e).) Plaintiff failed to commence suit within one year of his right to sue letters from
the DFEH dated August 17, 2018, and July 1, 2019. As such the 1-year statute of limitation then
in effect for FEHA bars Plaintiff’s claims. (Doyle v. Fenster (1996) 47 Cal.App.4th 1701, 1707
[“A statute
of limitations defense
may be raised by demunrer”]; Gov. Code§ 12965.)
2. The second cause of action fails as a matter of law, because Plaintiff failed to
10 exhaust his administrative remedies. (Code Civ. Proc., § 430.10(a), (e).) President Zelezny is not
11 named as a respondent or mentioned in Plaintiff’ s DFEH complaint dated February 13, 2018. This
gO 12 defect is fatal. (Cole v. Antelope Valley Union High Sch. Dist. (1996) 47 Cal.App.4th 1505, 1515.)
2eo
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13 The allegations against President Zelezny in Plaintiff's July 1, 2019, DFEH complaint are either
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Ba 14 time-barred on their face (i.e. not raised within 1-year of the alleged unlawful practice under Gov.
see
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15 Code § 12960), or so vague as to amount to a failure to provide sufficient information. (Foster v.
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16 Bank of Am, Nat. Ass’n (E.D. Cal. 2014) 2014 WL 4092311, at *5 [merely providing conclusory
17 allegations ina DFEH complaint are insufficient as a matter of law].)
18 3, The second cause of action for FEHA race/national origin harassment fails as a
19 matter of law, because it is fails to state sufficient facts against President Zelezny. (Code Civ.
20 Proc., § 430.10(e).) There are no race harassment allegations pled against her.
21 DEMURRER TO THIRD CAUSE OF ACTION
22 4. The third cause of action for FEHA retaliation must fail, because Plaintiff failed
23 to state facts sufficient to constitute a claim. (Code Civ. Proc., § 430.10(a), (e).) Individuals are
24. not subject to personal liability for alleged FEHA retaliation. (Reno v. Baird (1998) 18 Cal.4th
25 640, 663; Jones v. Lodge at Torrey Pines P'ship (2008) 42 Cal.4th 1158, 1167.)
26 5, The third cause of action for FEHA retaliation fails as a matter
of law, because
27 Plaintiff’s claims are barred
by the statute of limitations. (Code Civ. Proc., § 430.10(a), (e).)
28 Plaintiff failed to commence suit within
one year of his right to sue letters from the DFEH dated
Defendant Lynnette Zelezny’ s Notice of Demurrer and Demurrer
to Plaintiffs Complaint
9834806.3 FROO7-003
August 17, 2018, and July 1, 2019. As such the 1-year statute of limitation then in effect for
FEHA bars Plaintiff’s claims. (Doyle, supra, 47 Cal.App.4th
at 1707; Gov. Code§ 12965.)
6. The third cause of action fails as a matter of law, because Plaintiff
failed to exhaust
his administrative remedies. (Code Civ. Proc., § 430.10(e).) President Zelezny is not named as a
respondent or mentioned in Plaintiff’s DFEH complaint dated February 13, 2018. This defect is
fatal. (Cole, supra, 47 Cal.App.4th at 1515.) The allegations against President Zelezny in
Plaintiff’ sJuly 1, 2019, DFEH complaint are either time-barred ontheir face (i.e. not raised within
1-year of the alleged unlawful practice under Gov. Code§ 12960), or so vague as to amount to a
failure to provide sufficient information. (Foster, supra, 2014 WL 4092311, at *5 [merely
10 providing conclusory allegations ina DFEH complaint are insufficient as a matter of law].)
11 DEMURRER TO FOURTH CAUSE OF ACTION
gO 12 7, The fourth cause of action for failing to prevent FEHA violations must fail,
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13 because Plaintiff failed to state facts sufficient
to constitute a claim. (Code Civ. Proc., § 430.10(a),
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see
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a8 15 8. The fourth cause of action for failing to prevent FEHA violations must fail,
tid
16 because it is barred by the applicable statute of limitations. (Code Civ. Proc., § 430.10(a), (e).)
17 Plaintiff failed to commence suit within
one year of his right to sue letters from the DFEH dated
18 August 17, 2018, and July 1, 2019. As such the 1-year statute of limitation then in effect for
19 FEHA bars Plaintiff's claims. (Doyle, supra, 47 Cal.App.4th
at 1707; Gov. Code§ 12965.)
20 9, The fourth cause of action fails as a matter of law, because Plaintiff failed to
21 exhaust his administrative remedies. (Code Civ. Proc., § 430.10(e).) President Zelezny is not
22 named as a respondent or mentioned in Plaintiff’ s DFEH complaint dated February 13, 2018. This
23 defect is fatal. (Cole, supra, 47 Cal.App.4th at 1515.) The allegations against President Zelezny
24. in Plaintiff's July 1, 2019, DFEH complaint are either time-barred on their face (i.e. not raised
25 within 1-year of the alleged unlawful practice under Gov. Code§ 12960), orso vague
as to amount
26 to a failure to provide sufficient information. (Foster, supra, 2014 WL 4092311, at *5 [merely
27 providing conclusory allegations ina DFEH complaint are insufficient as a matter of law].)
28 10. Ml
4
Defendant Lynnette Zelezny’ s Notice of Demurrer and Demurrer
to Plaintiffs Complaint
9834806.3 FROO7-003
DEMURRER
TO FIFTH CAUSE OF ACTION
11. The fifth cause of action for aiding and abetting FEHA violations must fail,
because Plaintiff failed to state facts sufficient
to constitute a claim. (Code Civ. Proc., § 430.10(a),
(e).) Employees cannot conspire with co-workers or their employer.
12. The fifth cause of action for and abetting FEHA violations must fail, because it
is barred
by the applicable statute of limitations. (Code Civ. Proc., § 430.10(a), (e).) Plaintiff
failed to commence suit within
one year of his right to sue letters from the DFEH dated August
17, 2018, and July 1, 2019. As such the 1-year statute of limitation
then in effect for FEHA bars
Plaintiff's claims. (Doyle, supra, 47 Cal.App.4th at 1707; Gov. Code§ 12965.)
10 13. The fifth cause of action for and abetting FEHA violations must fail, because
11 Plaintiff failed to exhaust his administrative remedies. (Code Civ. Proc., § 430.10(e).) President
gO 12 Zelezny is not named as a respondent
or mentioned in Plaintiffs DFEH complaint
dated February
28S
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13 13, 2018. This defect is fatal. (Cole, 47 Cal.App.4th at 1515.) The allegations against President
ga
Ba 14 Zelezny in Plaintiff's July 1, 2019, DFEH complaint are either time-barred on their face (i.e. not
see
es
15 raised within 1-year of the alleged unlawful practice under Gov. Code § 12960), or fail to provide
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16 sufficient information. (Foster, 2014 WL 4092311, at*5 [merely providing conclusory allegations
17 ina DFEH complaint
are insufficient as a matter
of law].)
18 DEMURRER TO SEVENTH CAUSE OF ACTION
19 14. The seventh cause of action for retaliation under the Whistleblower Protection
20 Act (“WPA”) against President Zelezny must fail, because Plaintiff failed to exhaust his
21 administrative remedies. (Code Civ. Proc., § 430.10(a), (e).) Plaintiff failed to file his June 5,
22 2018, Executive Order 1058 complaint under penalty of perjury, which is a statutory requirement
23 under Govemment Code section 8547.12(a); he failed to allege viable claims against her, he
24. failed to provide the information required under Executive Order 1058 or 1116 in his complaints
25 dated June 5, 2018, orJune 14, 2019; and the allegations he included
in his June 14, 2019
26 Executive Order complaint, were either recycled from his time-barred complaint from June 2018,
27 or not filed within the 1 year limitations period pursuant to Gov. Code section 8547.12(a).)
28 15. The seventh cause of action under the WPA fails as a matter
of law, because
it is
5
Defendant Lynnette Zelezny’ s Notice of Demurrer and Demurrer
to Plaintiffs Complaint
9834806.3 FROO7-003
fails to state sufficient facts against President Zelezny. (Code Civ. Proc., § 430.10(e).) There are
no actionable retaliation allegations against President Zelezny.
DEMURRER TO TENTH CAUSE OF ACTION
16. The tenth cause of action for intentional infliction of emotional distress must fail,
because Plaintiff failed to state a claim upon which relief can be granted. (Code Civ. Proc., §
430.10(a), (e).) CSU sent Plaintiff a rejection notice on October 25, 2018, in response to his tort
claim dated August 2, 2018, and Plaintiff did not commence suit within six months. CSU also sent
Plaintiff a rejection notice on August 21, 2019, rejecting Plaintiff’
s June 29, 2019, tort claim, and
Plaintiff failed to commence suit against President Zelezny within six months. (Doyle, supra, 47
10 Cal.App.4th at 1707 [statute of limitations can be raised on demurrer]; Gov. Code, § 945.6.)
11 17. The tenth cause of action for intentional infliction of emotional distress must fail,
gO 12 because Plaintiff failed to state a claim upon which relief can be granted. (Code Civ. Proc., §
28S
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13 430.10(a), (e).) President Zelezny is immune under Govemment Code sections 820.2/821.6, and
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Ba 14 Plaintiff failed to allege facts that could sustain this cause of action against her. Moreover, this
UaES es
15 cause of action is time barred by a two year statute of limitations. (Code Civ. Pro. § 335.1.)
Bibigt
tid
16 18. The tenth cause of action for intentional infliction of emotional distress must fail,
17 because Plaintiff failed to exhaust his administrative remedies. (Code Civ. Proc., § 430.10(a), (e).)
18 Plaintiff failed to file a Govemment Tort Claim with allegations implicating President Zelezny
19 within six months of the alleged occurrence. (Gov. Code§ 911.2.)
20 SPECIAL DEMURRER
AS TO THE SECOND, THIRD, FOURTH, FIFTH,
21 SEVENTH, AND TENTH CAUSES OF ACTION
22 19. The second-through fifth, seventh, and tenth causes of action against President
23 Zelezny are uncertain. (Code Civ. Proc., § 430.10(f).) Each cause of action against President
24. Zelezny is premised on the existence of binding tolling agreements (i.e. contracts) which President
25 Zelezny purportedly is a party to, but the agreements
are not described in any detail.
26 20. The second-through fifth, seventh, and tenth causes of action against President
27 Zelezny are uncertain. (Code Civ. Proc., § 430.10(f).) There are no allegations against President
28 Zelezny beyond allegedly denying Plaintiff a directorship opportunity in 2016 (which is clearly
Defendant Lynnette Zelezny’ s Notice of Demurrer and Demurrer
to Plaintiffs Complaint
9834806.3 FROO7-003
time barred), and her alleged role in authorizing Plaintiff's February 2018 suspension, which was
nearly three years ago, and there is no timely basis for any causes of action against President
Zelezny after this period. Plaintiff should be compelled to describe his allegations against President
Zelezny with enough clarity to enable a reasonable and intelligent response:
Dated: November
18, 2021 LIEBERT CASSIDY WHITMORE
10
. lik p— Jesse J. Maddox
Nathan T. sactaon //
11 Attorneys for Defendants BOARD OF
TRUSTEES OF CALIFORNIA STATE
ge
ec 12
UNIVERSITY, DARRYLL. HAMM.
aa 13 LYNNETTE ZELEZNY, and XUANNING FU
ve
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3 15
eZ
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Defendant Lynnette Zelezny’s Notice of Demurrer and Demurrer to Plaintiff's Complaint
9834806.3 FRO07-003
TABLE OF CONTENTS
INTRODUCTION 15
IL SUMMARY OF RELEVANT ALLEGATIONS... 15
Til. LEGAL ANALYSIS 16
A STANDARD OF REVIEW, 16
B. PLAINTIFF S CLAIMS ARE EITHER TIME-BARRED, OR HE
FAILED TO EXHAUST HIS ADMINISTRATIVE REMEDIES. 17
1 The Court Can Take Judicial Notice of Tolling Agreements 17
10 2. Fair Employment & Housing Act (“FEHA”) 18
11
a Plaintiff’ s First DFEH Complaint 18
gO 12
28S b. Plaintiff’ s Second DFEH Complaint 19
aa
13
ga Califomia Govemment Claims Act (“GCA”) 20
Ba 14
see
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a Plaintiff’ s First Tort Claim. 20
15
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b. Plaintiff’ s Second Tort Claim. 21
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State Whistleblower Protection Act.
17
a Plaintiff’ s First Executive Order 1058 Complaint.
18
19 b. Plaintiff’ s Second Executive Order 1058 Complaint.
20 THERE ARE NO ALLEGATIONS OF FEHA RACE
HARASSMENT 24.
21
PRESIDENT ZELEZNY CANNOT BE SUED FOR FEHA
22 RETALIATION. 24.
23 PRESIDENT ZELEZNY CANNOT BE SUED FOR FAILING TO
24. PREVENT DISCRIMINATION, HARASSMENT, OR
RETALIATION. 24.
25
PRESIDENT ZELEZNY CANNOT BE SUED FOR AIDING
26 AND ABETTING PURPORTED VIOLATIONS OF THE FEHA 25
27 PRESIDENT ZELEZNY IS NOT SUBJECT TO LIABILITY FOR
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 25
28
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Defendant Lynnette Zelezny’ s Notice of Demurrer and Demurrer
to Plaintiffs Complaint
9834806.3 FROO7-003
1 Plaintiff’ s Allegations Are Too Ambiguous and Uncertain 25
2. President Zelezny Is Immune from Liability in This Case 26
3, Workers’ Compensation Exclusivity Applies Here. 27
PRESIDENT ZELEZNY CANNOT BE SUED IN RELATION
TO
PLAINTIFF’ S SUSPENSION, BECAUSE IT IS NOT
DISCIPLINARY 28
I IN THE ALTERNATIVE, THE COMPLAINT IS UNCERTAIN 29
IV CONCLUSION. 29
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Defendant Lynnette Zelezny’ s Notice of Demurrer and Demurrer
to Plaintiffs Complaint
9834806.3 FROO7-003
TABLE OF AUTHORITIES
Page(s)
Federal Cases
Breaux v. City of Garland
(Sth Cir. 2000) 205 F.3d 150 28
Foster v. Bank
of Am, Nat. Ass’n
(ED. Cal. 2014) 2014 WL 4092311 passim
Gamnon v. Potter
(ND. Cal. 2006) 2006 WL 3422215, at*5 28
Haddon v. Executive Residence at the White House
10 (Fed. Cir. 2002) 313 F.3d 1352. 28
11 Joseph v. Leavitt
(2nd Cir. 2006) 465 F.3d 87. 28
gO 12
28S McFadden v. City of El Centro
aa
13 (S.D. Cal. 2014) 2014 WL 3002364.
ga
Ba 14
see
es Nichols v. Southern Illinois University-Edwardsville
(7th Cir. 2007) 510 F.3d 772 28
15
a8
16 Von Gunten v. and
tid (4th Cir. 2001) 243 F.3d 858 28
17
State Cases
18
ini v. a
19 (1965) 231 Cal.App.2d 804 28
20 Applied Equipment Corp. v. Litton Saudi Arabia Ltd.
21 (1994) 7 Cal.4th 503 25
22 Ascherman v. Gen. Reins. Corp.
(1986) 183 Cal.App.3d 307 17
23
Blankv. Kirwan.
24. (1985) 39 Cal.3d 311 17
25 Burgdorf v. Funder
(1966) 246 Cal.App.2d 443 26
26
27 Cal. Clean Energy Comm v. City of San Jose
(2013) 220 Cal.App.4th 1325 18
28
10
Defendant Lynnette Zelezny’ s Notice of Demurrer and Demurrer
to Plaintiffs Complaint
9834806.3 FROO7-003
Caldwell
v. Mo!
(1995) 10 Cal.4th 972 27
Castaneda v. Dep't of Corr. & Rehab.
(2013) 212 Cal.App.4th 1051 .. 21
Colev. Antelope Valley Union High Sch. Dist.
(1996) 47 Cal.App.4th 1505 3, 4,5, 18
Commodore Home Sys., Inc. v. Superior Court
(1982) 32 Cal.3d 211 19
Craig v. City of Los Angeles
(1941) 44 Cal.App.2d 71 29
Cruzv. Cty. of Los les
10 (1985) 173 Cal.App.3d 1131 17
11 Donabedian v. Insurance Co.
(2004) 116 Cal.App.4th 968 17
gO 12
28S Dowell v. Cty. of Contra Costa
aa
13 (1985) 173 Cal.App.3d 896 20
ga
Ba 14
see Doylev. Fenster
es
15 (1996) 47 Cal.App.4th 1701 .... 3,4,5,6
a8
16 Ferguson v. McBean
tid
(1891) 91 Cal. 63 18
17
Fiol v. Doellstedt
18 (1996) 50 Cal.App.4th 1318 25
19 Fisher v. Pickens
20 (1990) 225 Cal.App.3d 708 26
21 Frantz v. Blackwell
(1987) 189 Cal.App.3d 91 17
22
Freeny v. City of San Buenaventur
23 (2013) 216 Cal.App.4th 1333 26
24. Gillan v. City of San Marino
(2007) 147 Cal.App.4th 1033 27
25
26 Glorietta Foods, Inc. v. City of San Jose
(1983) 147 Cal.App.3d 835 20
27
Guardian North Bay, Inc. v. Superior Court
28 (2001) 94 Cal.App.4th 963 17
11
Defendant Lynnette Zelezny’ s Notice of Demurrer and Demurrer
to Plaintiffs Complaint
9834806.3 FROO7-003
Herrera v. Deutsche Bank National Trust Co.
(2011) 196 Cal.App.4th 1366 17
ity of SanJ ose v. Superior Ct.
(1974) 12 Cal.3d 447 21
Janken v. GM Hughes Elecs.
(1996) 46 Cal.App.4th 55 24, 25, 27
Jensen v. U-Haul Co. of Califormia
(2017) 18 Cal.App.Sth 295 18
Jones v. Lodge at Torrey Pines P'ship
(2008) 42 Cal.4th 1158 3, 24
Joslinv. HAS. Ins. Brokerage
10 (1986) 184 Cal.App.3d 369 17
11 Kennerer v. Cty. of Fresno
(1980) 200 Cal.App.3d 1426 27
gO 12
28S Khoury v. Maly’s of California, Inc.
aa
13 (1993) 14 Cal. App.4th 612 29
ga
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see Lipmanv. Brisbane Elementary Sch. Dist.
es
15 (1961) 55 Cal.2d 224... 26
a8
16 Loehr v. Ventura Cty. Cty. Coll. Dist.
tid
(1983) 147 Cal.App.3d 1071 20
17
Manavian v. Dep’t of Just.
18 (2018) 28 Cal.App.Sth 1127
19 Martin v. Lockheed Missiles & Space Co.
20 (1994) 29 Cal.App.4th 1718 18
21 Mendezv. Pacific Gas & Electric Co.
(1953) 115 Cal.App.2d 192 17
22
Miklsy v. Regents of Univ. of California
23 (2008) 44 Cal.4th 876 28
24. Myers v. Philip Morris Companies, Inc.
(2002) 28 Cal.4th 828 19
25
26 Palmer v. The Regents of the University of Califomia
(2003) 107 Cal.App.4th 899 23
27
Quigley v. Garden Valley Fire Prot. Dist.
28 (2019) 7 Cal.5th 798 27
12
Defendant Lynnette Zelezny’ s Notice of Demurrer and Demurrer
to Plaintiffs Complaint
9834806.3 FROO7-003
Reno
v. Baird
(1998) 18 Cal.4th 640 3, 24
Richards v. CH2M Hill, Inc.
(2001) 26 Cal.4th 798... 18
Ruizv. Dep't of Corr.
(2000) 77 Cal.App.4th 891 23
Runyon v. Bd. of Trustees of California State Univ.
(2010) 48 Cal.4th 760 22
Searcy v. Hemet Unified School District
(1986) 177 Cal.App.3d 792 26
Shively v. Bozanich
10 (2003) 31 Cal.4th 1230 20
11 Singer Co. v. Cty. of Kings
(1975) 46 Cal.App.3d 852 19
gO 12
28S Suh v. Superior Ct.
aa
13 (2010) 181 Cal.App.4th 1504 18
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see Susman v. City of Los Angeles
es
15 (1969) 269 Cal.App.2d 803 26
a8
16 Thompson v. City of Monrovia
tid
(2010) 186 Cal.App.4th 860 24.
17
Wassnamn v. S. Orange Cty. Cmty. Coll. Dist.
18 (2018) 24 Cal.App.Sth 825 25
19 Willis v. City of Carlsbad
20 (2020) 48 Cal.App.Sth 1104 20
21 State Statues
22 Code of Civil Procedure Section 335.1 ...c.ccecssessssssscssscsssescscscsescscscsescscscsescscscscscscscscscscscscscacsceeed 6, 25
23 Code of Civil Procedure section 430.10... passim
24. Evidence Code section 451 17
25 Evidence Code section 452 17
26 Govemment Code section 12926. 24.
27
Govemment Code section 12940... 4, 24, 25
28
13
Defendant Lynnette Zelezny’ s Notice of Demurrer and Demurrer
to Plaintiffs Complaint
9834806.3 FROO7-003
Govemment Code section 12960. passim
Govemment Code section 12965. 3, 4,5, 19
Government Code Section 820.2.....c.cccccccccsssssssssscsescssscscscscscscscscscscscscscscscscscscscscscscacscacscscscecsceced 6, 26
Govemment Code section 821.6.... 6, 27
Govemment Code section 8547.10 23
Govemment Code section 8547.12 5, 22
Govemment Code section 905 20
Govemment Code section 910... 21
Government Code Section 911.2.....c.cccccscscsssessscssscssscssscssscssscsssesssessscsssesescsssesssesssessscsssessseee 6, 20, 21
10
Government Code section 945.4......ccsscsecsesssssessessesssessessesssessessessesseessessuesseessesseessesssesseesseesaee 20
11
12 Government Code section 945.6......ccssssscsssssssesssessessesssessessecsuessessessuessessesssesseesseessessesseensesseesy 6
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13 Other Authorities
aa
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see
es
15 A.B. 9 (2019) REY€S.....cscsssssssesssssessssessseesssecssseessseesssessssessssessseessneessnsessueessssssssessseessneessneessseesseesssses 19
a8
16 Holtzman & Hartinger, Califomia Practice Guide: Public Sector Employment
tid
Litigation (Rutter Group 2021) 27
17
Weil & Brown, Califomia Practice Guide: Civil Procedure Before Trial (Rutter
18
Group, 2021) 29
19
20
21
22
23
24.
25
26
27
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Defendant Lynnette Zelezny’ s Notice of Demurrer and Demurrer
to Plaintiffs Complaint
9834806.3 FROO7-003
MEMORANDUM OF POINTS AND AUTHORITIES
I INTRODUCTION
Lynnette Zelezny is the President of Califomia State University, Bakersfield (“CSU-
Bakersfield”). She was the Provost for Califomia State University, Fresno (“CSU-Fresno”),
leading up to Plaintiff’s paid suspension on February 5, 2018. Plaintiff concedes that President
Zelezny stopped working for CSU-Fresno in May of 2018. (Complaint at {| 4.)
Plaintiff’ s 38-page, 158 paragraph Complaint only mentions President Zelezny twice. She
purportedly made Plaintiff a “hoax” offer to be the director of an institute in 2016, and then.
allegedly “withdrew” the offer following Plaintiff’ s “protected activities.” (Complaint at ] 17-
10 18.) Plaintiff also claims that President Zelezny - along with a long list of other CSU-Fresno
11 administrators - “responded negatively and with hostility to plaintiff’ s effort to call attention to
gO 12 discrimination and other unlawful wrongdoing within the University.” (Id. at 721.) There are no
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13 other specific allegations against President Zelezny, other than accusing her and every other
ga
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roles in the decision to suspend him.
see
es
15 Plaintiff’s stale claims against President Zelezny are time-barred. She was angrily
and
a8
tid
16 frivolously sued following a failed mediation. In order for Plaintiff to accomplish the vengeful
17 and malicious purpose of this lawsuit, he and his counsel falsely represented that President
18 Zelezny- and every other defendant- entered into tolling agreements
with him. (Id. at §"52-
19 53.) Because CSU is a state entity, and Plaintiff relies on these agreements
in his Complaint, the
20 Court can take judicial notice of them. President Zelezny is not a signatory to these tolling
21 agreements, nor is she mentioned
by name or job title. Plaintiff made this representation
in an
22 effort to drag some of the highest officials in the CSU system into his lawsuit. The reality
Preview
JesseJ. Maddox, Bar No. 219091 jmaddox@Icwlegal.com E-FILED Nathan T. Jackson, Bar No. 285620 11/18/2021 5:30 PM jacksor Lcwl com. Superior Court of California County of Fresno LIEBERT CASSIDY WHITMORE A Professional Law Corporation By: |. Herrera, Deputy 5250 North Palm Ave, Suite 310 Fresno, Califomia 93704 Telephone: 559.256.7800 Facsimile: 559.449.4535 Attomeys for Defendants BOARD OF TRUSTEES OF CALIFORNIA STATE UNIVERSITY, DARRYL L. HAMM, LY NNETTE ZELEZNY, and XUANNING FU SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF FRESNO 11 12 A. SAMEH EL KHARBAWY, Case No.: 21CECG02214 gas 13 Plaintiff, [ASSIGNED FOR ALL PURPOSES TO HON. KIMBERLY GAAB, DEPT. 503] Bas 14 see Vv. Complaint Filed: October 23, 2020 15 a8 BOARD OF TRUSTEES OF CALIFORNIA STATE UNIVERSITY ; DEFENDANT LYNNETTE ZELEZNY’S tin 16 DARRYL L. HAMM, an individual; NOTICE OF DEMURRER AND DEMURRER 17 LY NNETTE ZELEZNY, an individual; TO PLAINTIFF A. SAMFH EL JOSEPH I. CASTRO, an individual; KHARBAWY’S COMPLAINT; 18 SAUL JIMENEZ-SANDOVAL, an MEMORANDUM OF POINTS AND individual; XUANNING FU, an AUTHORITIES IN SUPPORT THEREOF 19 individual; AND DOES 1 through 50, 20 Date: May 4, 2022 Defendants. Time: 3:30 p.m. 21 Dept: 503 22 («Exempt from filing fees pursuant to Gov. 23 Code, § 6108.) 24. 25 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 26 PLEASE TAKE NOTICE that on May 4, 2022, at 3:30 p.m., or as soon thereafter as the 27 matter may be heard in Department 503 of the Fresno County Superior Court, located at 1130 O 28 Street, Fresno, CA 93724, Defendant Lynnette Zelezny (“President Zelezny”) will and hereby does 1 Defendant Lynnette Zelezny’ s Notice of Demurrer and Demurrer to Plaintiffs Complaint 9834806.3 FROO7-003 move this Court for an order sustaining her demurrer to Plaintiff A. Sameh El Kharbawy’s (“Plaintiff”) Complaint (“Complaint”) without leave to amend. President Zelezny demurs to Plaintiff's Complaint with respect to all claims asserted against her pursuant to Code of Civil Procedure section 430.10(a), (e), and (f) including the second, third. fourth, fifth, seventh, and tenth causes of action, on the grounds set forth in the attached demurrer which is hereby incorporated by reference. This demurrer is based on this Notice of Demurrer, the Demurrer, the declaration of Nathan T. Jackson, the accompanying Memorandum of Points and Authorities and Request for Judicial Notice, all pleadings, papers, and records on file herein, and any such further matters or evidence that may be presented at or before the hearing on this demurrer. 10 Statutory Meet & Confe! 11 The Parties have met and conferred in writing and by phone, and have been unable to reach ge 12 an agreement prior to the filing of this demurrer. (Jackson Decl. at §{ 3-7, Exhs. B-F.) 13 14 a Dated: November 18, 2021 LIEBERT CASSIDY WHITMORE » Lk-— 15 3& 2sou 16 <& 17 Jesse J.Maddox / 18 Nathan T. addon / Attorneys for Defendants BOARD OF 19 TRUSTEES OF CALIFORNIA STATE UNIVERSITY, DARRYLL. HAMM. 20 LYNNETTE ZELEZNY, and XUANNING FU 21 22 23 24 25 26 27 28 2 Defendant Lynnette Zelezny’s Notice of Demurrer and Demurrer to Plaintiff's Complaint 9834806.3 FRO07-003 DEMURRER DEMURRER TO SECOND CAUSE OF ACTION 1 The second cause of action for FEHA race/national origin harassment fails as a matter of law, because it is barred by the applicable statute of limitations. (Code Civ. Proc., § 430.10(a), (e).) Plaintiff failed to commence suit within one year of his right to sue letters from the DFEH dated August 17, 2018, and July 1, 2019. As such the 1-year statute of limitation then in effect for FEHA bars Plaintiff’s claims. (Doyle v. Fenster (1996) 47 Cal.App.4th 1701, 1707 [“A statute of limitations defense may be raised by demunrer”]; Gov. Code§ 12965.) 2. The second cause of action fails as a matter of law, because Plaintiff failed to 10 exhaust his administrative remedies. (Code Civ. Proc., § 430.10(a), (e).) President Zelezny is not 11 named as a respondent or mentioned in Plaintiff’ s DFEH complaint dated February 13, 2018. This gO 12 defect is fatal. (Cole v. Antelope Valley Union High Sch. Dist. (1996) 47 Cal.App.4th 1505, 1515.) 2eo aa 13 The allegations against President Zelezny in Plaintiff's July 1, 2019, DFEH complaint are either ga Ba 14 time-barred on their face (i.e. not raised within 1-year of the alleged unlawful practice under Gov. see es 15 Code § 12960), or so vague as to amount to a failure to provide sufficient information. (Foster v. a8 tid 16 Bank of Am, Nat. Ass’n (E.D. Cal. 2014) 2014 WL 4092311, at *5 [merely providing conclusory 17 allegations ina DFEH complaint are insufficient as a matter of law].) 18 3, The second cause of action for FEHA race/national origin harassment fails as a 19 matter of law, because it is fails to state sufficient facts against President Zelezny. (Code Civ. 20 Proc., § 430.10(e).) There are no race harassment allegations pled against her. 21 DEMURRER TO THIRD CAUSE OF ACTION 22 4. The third cause of action for FEHA retaliation must fail, because Plaintiff failed 23 to state facts sufficient to constitute a claim. (Code Civ. Proc., § 430.10(a), (e).) Individuals are 24. not subject to personal liability for alleged FEHA retaliation. (Reno v. Baird (1998) 18 Cal.4th 25 640, 663; Jones v. Lodge at Torrey Pines P'ship (2008) 42 Cal.4th 1158, 1167.) 26 5, The third cause of action for FEHA retaliation fails as a matter of law, because 27 Plaintiff’s claims are barred by the statute of limitations. (Code Civ. Proc., § 430.10(a), (e).) 28 Plaintiff failed to commence suit within one year of his right to sue letters from the DFEH dated Defendant Lynnette Zelezny’ s Notice of Demurrer and Demurrer to Plaintiffs Complaint 9834806.3 FROO7-003 August 17, 2018, and July 1, 2019. As such the 1-year statute of limitation then in effect for FEHA bars Plaintiff’s claims. (Doyle, supra, 47 Cal.App.4th at 1707; Gov. Code§ 12965.) 6. The third cause of action fails as a matter of law, because Plaintiff failed to exhaust his administrative remedies. (Code Civ. Proc., § 430.10(e).) President Zelezny is not named as a respondent or mentioned in Plaintiff’s DFEH complaint dated February 13, 2018. This defect is fatal. (Cole, supra, 47 Cal.App.4th at 1515.) The allegations against President Zelezny in Plaintiff’ sJuly 1, 2019, DFEH complaint are either time-barred ontheir face (i.e. not raised within 1-year of the alleged unlawful practice under Gov. Code§ 12960), or so vague as to amount to a failure to provide sufficient information. (Foster, supra, 2014 WL 4092311, at *5 [merely 10 providing conclusory allegations ina DFEH complaint are insufficient as a matter of law].) 11 DEMURRER TO FOURTH CAUSE OF ACTION gO 12 7, The fourth cause of action for failing to prevent FEHA violations must fail, 28S aa 13 because Plaintiff failed to state facts sufficient to constitute a claim. (Code Civ. Proc., § 430.10(a), ga Ba 14 (e).) Individuals are not subject to liability under Govemment Code section 12940(k). see es a8 15 8. The fourth cause of action for failing to prevent FEHA violations must fail, tid 16 because it is barred by the applicable statute of limitations. (Code Civ. Proc., § 430.10(a), (e).) 17 Plaintiff failed to commence suit within one year of his right to sue letters from the DFEH dated 18 August 17, 2018, and July 1, 2019. As such the 1-year statute of limitation then in effect for 19 FEHA bars Plaintiff's claims. (Doyle, supra, 47 Cal.App.4th at 1707; Gov. Code§ 12965.) 20 9, The fourth cause of action fails as a matter of law, because Plaintiff failed to 21 exhaust his administrative remedies. (Code Civ. Proc., § 430.10(e).) President Zelezny is not 22 named as a respondent or mentioned in Plaintiff’ s DFEH complaint dated February 13, 2018. This 23 defect is fatal. (Cole, supra, 47 Cal.App.4th at 1515.) The allegations against President Zelezny 24. in Plaintiff's July 1, 2019, DFEH complaint are either time-barred on their face (i.e. not raised 25 within 1-year of the alleged unlawful practice under Gov. Code§ 12960), orso vague as to amount 26 to a failure to provide sufficient information. (Foster, supra, 2014 WL 4092311, at *5 [merely 27 providing conclusory allegations ina DFEH complaint are insufficient as a matter of law].) 28 10. Ml 4 Defendant Lynnette Zelezny’ s Notice of Demurrer and Demurrer to Plaintiffs Complaint 9834806.3 FROO7-003 DEMURRER TO FIFTH CAUSE OF ACTION 11. The fifth cause of action for aiding and abetting FEHA violations must fail, because Plaintiff failed to state facts sufficient to constitute a claim. (Code Civ. Proc., § 430.10(a), (e).) Employees cannot conspire with co-workers or their employer. 12. The fifth cause of action for and abetting FEHA violations must fail, because it is barred by the applicable statute of limitations. (Code Civ. Proc., § 430.10(a), (e).) Plaintiff failed to commence suit within one year of his right to sue letters from the DFEH dated August 17, 2018, and July 1, 2019. As such the 1-year statute of limitation then in effect for FEHA bars Plaintiff's claims. (Doyle, supra, 47 Cal.App.4th at 1707; Gov. Code§ 12965.) 10 13. The fifth cause of action for and abetting FEHA violations must fail, because 11 Plaintiff failed to exhaust his administrative remedies. (Code Civ. Proc., § 430.10(e).) President gO 12 Zelezny is not named as a respondent or mentioned in Plaintiffs DFEH complaint dated February 28S aa 13 13, 2018. This defect is fatal. (Cole, 47 Cal.App.4th at 1515.) The allegations against President ga Ba 14 Zelezny in Plaintiff's July 1, 2019, DFEH complaint are either time-barred on their face (i.e. not see es 15 raised within 1-year of the alleged unlawful practice under Gov. Code § 12960), or fail to provide a8 tid 16 sufficient information. (Foster, 2014 WL 4092311, at*5 [merely providing conclusory allegations 17 ina DFEH complaint are insufficient as a matter of law].) 18 DEMURRER TO SEVENTH CAUSE OF ACTION 19 14. The seventh cause of action for retaliation under the Whistleblower Protection 20 Act (“WPA”) against President Zelezny must fail, because Plaintiff failed to exhaust his 21 administrative remedies. (Code Civ. Proc., § 430.10(a), (e).) Plaintiff failed to file his June 5, 22 2018, Executive Order 1058 complaint under penalty of perjury, which is a statutory requirement 23 under Govemment Code section 8547.12(a); he failed to allege viable claims against her, he 24. failed to provide the information required under Executive Order 1058 or 1116 in his complaints 25 dated June 5, 2018, orJune 14, 2019; and the allegations he included in his June 14, 2019 26 Executive Order complaint, were either recycled from his time-barred complaint from June 2018, 27 or not filed within the 1 year limitations period pursuant to Gov. Code section 8547.12(a).) 28 15. The seventh cause of action under the WPA fails as a matter of law, because it is 5 Defendant Lynnette Zelezny’ s Notice of Demurrer and Demurrer to Plaintiffs Complaint 9834806.3 FROO7-003 fails to state sufficient facts against President Zelezny. (Code Civ. Proc., § 430.10(e).) There are no actionable retaliation allegations against President Zelezny. DEMURRER TO TENTH CAUSE OF ACTION 16. The tenth cause of action for intentional infliction of emotional distress must fail, because Plaintiff failed to state a claim upon which relief can be granted. (Code Civ. Proc., § 430.10(a), (e).) CSU sent Plaintiff a rejection notice on October 25, 2018, in response to his tort claim dated August 2, 2018, and Plaintiff did not commence suit within six months. CSU also sent Plaintiff a rejection notice on August 21, 2019, rejecting Plaintiff’ s June 29, 2019, tort claim, and Plaintiff failed to commence suit against President Zelezny within six months. (Doyle, supra, 47 10 Cal.App.4th at 1707 [statute of limitations can be raised on demurrer]; Gov. Code, § 945.6.) 11 17. The tenth cause of action for intentional infliction of emotional distress must fail, gO 12 because Plaintiff failed to state a claim upon which relief can be granted. (Code Civ. Proc., § 28S aa 13 430.10(a), (e).) President Zelezny is immune under Govemment Code sections 820.2/821.6, and ga Ba 14 Plaintiff failed to allege facts that could sustain this cause of action against her. Moreover, this UaES es 15 cause of action is time barred by a two year statute of limitations. (Code Civ. Pro. § 335.1.) Bibigt tid 16 18. The tenth cause of action for intentional infliction of emotional distress must fail, 17 because Plaintiff failed to exhaust his administrative remedies. (Code Civ. Proc., § 430.10(a), (e).) 18 Plaintiff failed to file a Govemment Tort Claim with allegations implicating President Zelezny 19 within six months of the alleged occurrence. (Gov. Code§ 911.2.) 20 SPECIAL DEMURRER AS TO THE SECOND, THIRD, FOURTH, FIFTH, 21 SEVENTH, AND TENTH CAUSES OF ACTION 22 19. The second-through fifth, seventh, and tenth causes of action against President 23 Zelezny are uncertain. (Code Civ. Proc., § 430.10(f).) Each cause of action against President 24. Zelezny is premised on the existence of binding tolling agreements (i.e. contracts) which President 25 Zelezny purportedly is a party to, but the agreements are not described in any detail. 26 20. The second-through fifth, seventh, and tenth causes of action against President 27 Zelezny are uncertain. (Code Civ. Proc., § 430.10(f).) There are no allegations against President 28 Zelezny beyond allegedly denying Plaintiff a directorship opportunity in 2016 (which is clearly Defendant Lynnette Zelezny’ s Notice of Demurrer and Demurrer to Plaintiffs Complaint 9834806.3 FROO7-003 time barred), and her alleged role in authorizing Plaintiff's February 2018 suspension, which was nearly three years ago, and there is no timely basis for any causes of action against President Zelezny after this period. Plaintiff should be compelled to describe his allegations against President Zelezny with enough clarity to enable a reasonable and intelligent response: Dated: November 18, 2021 LIEBERT CASSIDY WHITMORE 10 . lik p— Jesse J. Maddox Nathan T. sactaon // 11 Attorneys for Defendants BOARD OF TRUSTEES OF CALIFORNIA STATE ge ec 12 UNIVERSITY, DARRYLL. HAMM. aa 13 LYNNETTE ZELEZNY, and XUANNING FU ve 14 3 15 eZ 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Defendant Lynnette Zelezny’s Notice of Demurrer and Demurrer to Plaintiff's Complaint 9834806.3 FRO07-003 TABLE OF CONTENTS INTRODUCTION 15 IL SUMMARY OF RELEVANT ALLEGATIONS... 15 Til. LEGAL ANALYSIS 16 A STANDARD OF REVIEW, 16 B. PLAINTIFF S CLAIMS ARE EITHER TIME-BARRED, OR HE FAILED TO EXHAUST HIS ADMINISTRATIVE REMEDIES. 17 1 The Court Can Take Judicial Notice of Tolling Agreements 17 10 2. Fair Employment & Housing Act (“FEHA”) 18 11 a Plaintiff’ s First DFEH Complaint 18 gO 12 28S b. Plaintiff’ s Second DFEH Complaint 19 aa 13 ga Califomia Govemment Claims Act (“GCA”) 20 Ba 14 see es a Plaintiff’ s First Tort Claim. 20 15 a8 b. Plaintiff’ s Second Tort Claim. 21 tid 16 State Whistleblower Protection Act. 17 a Plaintiff’ s First Executive Order 1058 Complaint. 18 19 b. Plaintiff’ s Second Executive Order 1058 Complaint. 20 THERE ARE NO ALLEGATIONS OF FEHA RACE HARASSMENT 24. 21 PRESIDENT ZELEZNY CANNOT BE SUED FOR FEHA 22 RETALIATION. 24. 23 PRESIDENT ZELEZNY CANNOT BE SUED FOR FAILING TO 24. PREVENT DISCRIMINATION, HARASSMENT, OR RETALIATION. 24. 25 PRESIDENT ZELEZNY CANNOT BE SUED FOR AIDING 26 AND ABETTING PURPORTED VIOLATIONS OF THE FEHA 25 27 PRESIDENT ZELEZNY IS NOT SUBJECT TO LIABILITY FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 25 28 8 Defendant Lynnette Zelezny’ s Notice of Demurrer and Demurrer to Plaintiffs Complaint 9834806.3 FROO7-003 1 Plaintiff’ s Allegations Are Too Ambiguous and Uncertain 25 2. President Zelezny Is Immune from Liability in This Case 26 3, Workers’ Compensation Exclusivity Applies Here. 27 PRESIDENT ZELEZNY CANNOT BE SUED IN RELATION TO PLAINTIFF’ S SUSPENSION, BECAUSE IT IS NOT DISCIPLINARY 28 I IN THE ALTERNATIVE, THE COMPLAINT IS UNCERTAIN 29 IV CONCLUSION. 29 10 11 gO 12 28S aa 13 ga Ba 14 see es 15 a8 tid 16 17 18 19 20 21 22 23 24. 25 26 27 28 9 Defendant Lynnette Zelezny’ s Notice of Demurrer and Demurrer to Plaintiffs Complaint 9834806.3 FROO7-003 TABLE OF AUTHORITIES Page(s) Federal Cases Breaux v. City of Garland (Sth Cir. 2000) 205 F.3d 150 28 Foster v. Bank of Am, Nat. Ass’n (ED. Cal. 2014) 2014 WL 4092311 passim Gamnon v. Potter (ND. Cal. 2006) 2006 WL 3422215, at*5 28 Haddon v. Executive Residence at the White House 10 (Fed. Cir. 2002) 313 F.3d 1352. 28 11 Joseph v. Leavitt (2nd Cir. 2006) 465 F.3d 87. 28 gO 12 28S McFadden v. City of El Centro aa 13 (S.D. Cal. 2014) 2014 WL 3002364. ga Ba 14 see es Nichols v. Southern Illinois University-Edwardsville (7th Cir. 2007) 510 F.3d 772 28 15 a8 16 Von Gunten v. and tid (4th Cir. 2001) 243 F.3d 858 28 17 State Cases 18 ini v. a 19 (1965) 231 Cal.App.2d 804 28 20 Applied Equipment Corp. v. Litton Saudi Arabia Ltd. 21 (1994) 7 Cal.4th 503 25 22 Ascherman v. Gen. Reins. Corp. (1986) 183 Cal.App.3d 307 17 23 Blankv. Kirwan. 24. (1985) 39 Cal.3d 311 17 25 Burgdorf v. Funder (1966) 246 Cal.App.2d 443 26 26 27 Cal. Clean Energy Comm v. City of San Jose (2013) 220 Cal.App.4th 1325 18 28 10 Defendant Lynnette Zelezny’ s Notice of Demurrer and Demurrer to Plaintiffs Complaint 9834806.3 FROO7-003 Caldwell v. Mo! (1995) 10 Cal.4th 972 27 Castaneda v. Dep't of Corr. & Rehab. (2013) 212 Cal.App.4th 1051 .. 21 Colev. Antelope Valley Union High Sch. Dist. (1996) 47 Cal.App.4th 1505 3, 4,5, 18 Commodore Home Sys., Inc. v. Superior Court (1982) 32 Cal.3d 211 19 Craig v. City of Los Angeles (1941) 44 Cal.App.2d 71 29 Cruzv. Cty. of Los les 10 (1985) 173 Cal.App.3d 1131 17 11 Donabedian v. Insurance Co. (2004) 116 Cal.App.4th 968 17 gO 12 28S Dowell v. Cty. of Contra Costa aa 13 (1985) 173 Cal.App.3d 896 20 ga Ba 14 see Doylev. Fenster es 15 (1996) 47 Cal.App.4th 1701 .... 3,4,5,6 a8 16 Ferguson v. McBean tid (1891) 91 Cal. 63 18 17 Fiol v. Doellstedt 18 (1996) 50 Cal.App.4th 1318 25 19 Fisher v. Pickens 20 (1990) 225 Cal.App.3d 708 26 21 Frantz v. Blackwell (1987) 189 Cal.App.3d 91 17 22 Freeny v. City of San Buenaventur 23 (2013) 216 Cal.App.4th 1333 26 24. Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033 27 25 26 Glorietta Foods, Inc. v. City of San Jose (1983) 147 Cal.App.3d 835 20 27 Guardian North Bay, Inc. v. Superior Court 28 (2001) 94 Cal.App.4th 963 17 11 Defendant Lynnette Zelezny’ s Notice of Demurrer and Demurrer to Plaintiffs Complaint 9834806.3 FROO7-003 Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366 17 ity of SanJ ose v. Superior Ct. (1974) 12 Cal.3d 447 21 Janken v. GM Hughes Elecs. (1996) 46 Cal.App.4th 55 24, 25, 27 Jensen v. U-Haul Co. of Califormia (2017) 18 Cal.App.Sth 295 18 Jones v. Lodge at Torrey Pines P'ship (2008) 42 Cal.4th 1158 3, 24 Joslinv. HAS. Ins. Brokerage 10 (1986) 184 Cal.App.3d 369 17 11 Kennerer v. Cty. of Fresno (1980) 200 Cal.App.3d 1426 27 gO 12 28S Khoury v. Maly’s of California, Inc. aa 13 (1993) 14 Cal. App.4th 612 29 ga Ba 14 see Lipmanv. Brisbane Elementary Sch. Dist. es 15 (1961) 55 Cal.2d 224... 26 a8 16 Loehr v. Ventura Cty. Cty. Coll. Dist. tid (1983) 147 Cal.App.3d 1071 20 17 Manavian v. Dep’t of Just. 18 (2018) 28 Cal.App.Sth 1127 19 Martin v. Lockheed Missiles & Space Co. 20 (1994) 29 Cal.App.4th 1718 18 21 Mendezv. Pacific Gas & Electric Co. (1953) 115 Cal.App.2d 192 17 22 Miklsy v. Regents of Univ. of California 23 (2008) 44 Cal.4th 876 28 24. Myers v. Philip Morris Companies, Inc. (2002) 28 Cal.4th 828 19 25 26 Palmer v. The Regents of the University of Califomia (2003) 107 Cal.App.4th 899 23 27 Quigley v. Garden Valley Fire Prot. Dist. 28 (2019) 7 Cal.5th 798 27 12 Defendant Lynnette Zelezny’ s Notice of Demurrer and Demurrer to Plaintiffs Complaint 9834806.3 FROO7-003 Reno v. Baird (1998) 18 Cal.4th 640 3, 24 Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798... 18 Ruizv. Dep't of Corr. (2000) 77 Cal.App.4th 891 23 Runyon v. Bd. of Trustees of California State Univ. (2010) 48 Cal.4th 760 22 Searcy v. Hemet Unified School District (1986) 177 Cal.App.3d 792 26 Shively v. Bozanich 10 (2003) 31 Cal.4th 1230 20 11 Singer Co. v. Cty. of Kings (1975) 46 Cal.App.3d 852 19 gO 12 28S Suh v. Superior Ct. aa 13 (2010) 181 Cal.App.4th 1504 18 ga Ba 14 see Susman v. City of Los Angeles es 15 (1969) 269 Cal.App.2d 803 26 a8 16 Thompson v. City of Monrovia tid (2010) 186 Cal.App.4th 860 24. 17 Wassnamn v. S. Orange Cty. Cmty. Coll. Dist. 18 (2018) 24 Cal.App.Sth 825 25 19 Willis v. City of Carlsbad 20 (2020) 48 Cal.App.Sth 1104 20 21 State Statues 22 Code of Civil Procedure Section 335.1 ...c.ccecssessssssscssscsssescscscsescscscsescscscsescscscscscscscscscscscscscacsceeed 6, 25 23 Code of Civil Procedure section 430.10... passim 24. Evidence Code section 451 17 25 Evidence Code section 452 17 26 Govemment Code section 12926. 24. 27 Govemment Code section 12940... 4, 24, 25 28 13 Defendant Lynnette Zelezny’ s Notice of Demurrer and Demurrer to Plaintiffs Complaint 9834806.3 FROO7-003 Govemment Code section 12960. passim Govemment Code section 12965. 3, 4,5, 19 Government Code Section 820.2.....c.cccccccccsssssssssscsescssscscscscscscscscscscscscscscscscscscscscscscacscacscscscecsceced 6, 26 Govemment Code section 821.6.... 6, 27 Govemment Code section 8547.10 23 Govemment Code section 8547.12 5, 22 Govemment Code section 905 20 Govemment Code section 910... 21 Government Code Section 911.2.....c.cccccscscsssessscssscssscssscssscssscsssesssessscsssesescsssesssesssessscsssessseee 6, 20, 21 10 Government Code section 945.4......ccsscsecsesssssessessesssessessesssessessessesseessessuesseessesseessesssesseesseesaee 20 11 12 Government Code section 945.6......ccssssscsssssssesssessessesssessessecsuessessessuessessesssesseesseessessesseensesseesy 6 gO 28S 13 Other Authorities aa ga Ba 14 5 Witkin, Summary 11th Torts section 417 (2021) 26 see es 15 A.B. 9 (2019) REY€S.....cscsssssssesssssessssessseesssecssseessseesssessssessssessseessneessnsessueessssssssessseessneessneessseesseesssses 19 a8 16 Holtzman & Hartinger, Califomia Practice Guide: Public Sector Employment tid Litigation (Rutter Group 2021) 27 17 Weil & Brown, Califomia Practice Guide: Civil Procedure Before Trial (Rutter 18 Group, 2021) 29 19 20 21 22 23 24. 25 26 27 28 14 Defendant Lynnette Zelezny’ s Notice of Demurrer and Demurrer to Plaintiffs Complaint 9834806.3 FROO7-003 MEMORANDUM OF POINTS AND AUTHORITIES I INTRODUCTION Lynnette Zelezny is the President of Califomia State University, Bakersfield (“CSU- Bakersfield”). She was the Provost for Califomia State University, Fresno (“CSU-Fresno”), leading up to Plaintiff’s paid suspension on February 5, 2018. Plaintiff concedes that President Zelezny stopped working for CSU-Fresno in May of 2018. (Complaint at {| 4.) Plaintiff’ s 38-page, 158 paragraph Complaint only mentions President Zelezny twice. She purportedly made Plaintiff a “hoax” offer to be the director of an institute in 2016, and then. allegedly “withdrew” the offer following Plaintiff’ s “protected activities.” (Complaint at ] 17- 10 18.) Plaintiff also claims that President Zelezny - along with a long list of other CSU-Fresno 11 administrators - “responded negatively and with hostility to plaintiff’ s effort to call attention to gO 12 discrimination and other unlawful wrongdoing within the University.” (Id. at 721.) There are no 2eo aa 13 other specific allegations against President Zelezny, other than accusing her and every other ga Ba 14 defendant of playing unspecified roles in the decision to suspend him. see es 15 Plaintiff’s stale claims against President Zelezny are time-barred. She was angrily and a8 tid 16 frivolously sued following a failed mediation. In order for Plaintiff to accomplish the vengeful 17 and malicious purpose of this lawsuit, he and his counsel falsely represented that President 18 Zelezny- and every other defendant- entered into tolling agreements with him. (Id. at §"52- 19 53.) Because CSU is a state entity, and Plaintiff relies on these agreements in his Complaint, the 20 Court can take judicial notice of them. President Zelezny is not a signatory to these tolling 21 agreements, nor is she mentioned by name or job title. Plaintiff made this representation in an 22 effort to drag some of the highest officials in the CSU system into his lawsuit. The reality