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Electronically FILED by Suppror Court of California, County of Los Angeles on 04/30/2021 01:13 PM Sherri R. Carter, Executive Officer/Clerk of Court, by J. Ballesteros, Deputy Clerk
Jesse J. Maddox, Bar No. 219091
jmaddox@lcwlegal.com
Nathan T. Jackson, Bar No. 285620
njackson@Ilcwlegal.com
LIEBERT CASSIDY WHITMORE
A Professional Law Corporation
5250 North Palm Ave, Suite 310
Fresno, California 93704
Telephone: 559.256.7800
Facsimile: 559.449.4535
Attorneys for Defendant BOARD OF TRUSTEES OF
CALIFORNIA STATE UNIVERSITY
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF LOS ANGELES
21CE
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11 A. SAMEH EL KHARBAWY, Case No.: 20LBCV00465
12 Plaintiff, [ASSIGNED FOR ALL PURPOSES TO HON.
ges MICHAEL P. VICENCIA, DEPT. S26]
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Complaint Filed: October 23, 2020
> 14 BOARD OF TRUSTEES OF
926 15
CALIFORNIA STATE UNIVERSITY;
DARRYL L. HAMM, an individual;
SUPPLEMENTAL DECLARATION OF
NATHAN T. JACKSON IN SUPPORT OF
#3
LYNNETTE ZELEZNY, an individual: DEFENDANT BOARD OF TRUSTEES OF
ag eu
16 JOSEPH I. CASTRO, an individual; CALIFORNIA STATE UNIVERSITY’S
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SAUL JIMENEZ-SANDOVAL, an. RESPONSE TO PLAINTIFF’S SURREPLY IN
17 individual; XUANNING FU, an OPPOSITION TO MOTION TO TRANSFER
individual; AND DOES 1 through 50, VENUE TO FRESNO COUNTY
18
Defendants.
19
(*Exempt from filing fees pursuant to Gov.
20 Code, § 6103.)
21
22 I, Nathan T. Jackson, declare as follows:
23 1 I am an attorney licensed to practice before the all the Courts of the State of
California, and I am an associate in the law firm of Liebert Cassidy Whitmore, attorneys for
fendant Board of Trustees of California State University (“Defendant”).
26 2 Attached hereto as Exhibit 1 is a true and correct copy of the transcript from the
Pi arties’. March 25, 2021, hearing on this motion.
28 a
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Supplemental Declaration of Nathan T. Jackson
9632664.1 FRO07-003
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I declare under penalty of perjury under the laws of the United States and the State of
California that the foregoing is true and correct.
Executed this 30th day of April 2021, at Sacramento, California.
Niathan“F-Jacksph
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Supplemental Declaration of Nathan T. Jackson
9632664.1 FROO7-003
Exhibit 1
In the Matter of:
Kharbawy, A. Sameh vs Board of Trustees of California State University
TRANSCRIPT OF PROCEEDINGS
March 25, 2021
Job Number: 727424
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
DEPARTMENT S26 HON. MICHAEL P. VICENCIA, JUDGE
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A. SAMEH EL KHARBAWY,
Plaintiff,
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BY
be
vs. Case No. 20LBCV00465
10 BOARD OF TRUSTEES OF CALIFORNIA
STATE UNIVERSITY, et al.,
11
Defendants.
12
13
14 REPORTER'S TRANSCRIPT OF PROCEEDINGS
15 THURSDAY, MARCH 25, 2021
16 JOB NO. 727424
17
18
19
20
REMOTE .LA COURTCONNECT APPEARANCES OF COUNSEL:
21
FOR PLAINTIFF: HILLIER LAW
22 BY: ANDREW HILLIER, ESQUIRE
600 West Broadway, Suite 700
23 San Diego, California 92101
24 FOR DEFENDANTS: LIEBERT CASSIDY WHITMORE
BY: NATHAN T. JACKSON, ESQUIRE
25 ya 400 Capitol mall, Suite 1260
Sacramento, California 95814
26,
27
REPORTED, BY: TIMOTHY J. McCOY, CSR NO. 4745
28 OFFICIAL REPORTER PRO TEMPORE
TRANSCRIPT OF PROCEEDINGS - 03/25/2021
INDEX
THURSDAY, MARCH 25, 2021
WITNESSES
(NONE)
EXHIBITS
(NONE)
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CASE NUMBER: 20LBCV00465
CASE NAME: A. SAMEH EL KHARBAWY
vs. BOARD OF TRUSTEES OF
CALIFORNIA STATE UNIVERSITY, et al.
LONG BEACH, CA THURSDAY, MARCH 25, 2021
DEPARTMENT S26 HON. MICHAEL P. VICENCIA, JUDGE
TIME: 8:55 A.M.
REPORTER: TIMOTHY J. McCOY, CSR NO. 4745
APPEARANCES: (AS HERETOFORE NOTED)
10 kk Ok
11
12 (The proceedings commenced in open court, with
13 both counsel appearing remotely, as follows:)
14
15
16 THE COURT: Kharbawy versus Board of Trustees.
17 MR. JACKSON: Good morning, your Honor. Nathan Jackson
18 on behalf of the Board of Trustees.
19 MR. HILLIER: Good morning, your Honor. Andrew Hillier
20 on behalf of plaintiff Dr. A. Sameh El Kharbawy.
21 THE COURT: Good morning to you both.
22 This is a second motion to transfer filed by the
23 defendant Board of Trustees.
24 The underlying matter has several causes of action,
25 tall of them, or all of them -- well, almost all
4 st
26 of them rev olve around the alleged wrongful termination
27 he plaintiff.
28 \ Blaintift was employed at Fresno State, part of the
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California State University system, which is headquartered
here in Long Beach, and this action has been filed at the
Governor George Deukmejian Courthouse here in Long Beach.
The motion is brought pursuant to CCP section 397,
that is, for the convenience of nonparty witnesses the
matter is better heard in the County of Fresno.
According to the allegations in the complaint,
just about all of the meetings and interactions between the
plaintiff and the various people, as well as the internal
10 actions that went on between the various named defendants
11 and other individuals not named as defendants, happened
12 at Fresno State, obviously in Fresno County.
13 The moving party declares that there are some 17
14 witnesses, 15 of whom are employees of Fresno State and
15 live in and around Fresno. They identify a number of other
16 witnesses, including students whose last known addresses
17 are in and around Fresno State.
18 Finally, it's pointed out that while the court
19 does not consider the convenience of witnesses who are
20 employed by one of the parties, if it is the opposing party
21 that brings those folks into the litigation by identifying
22 them or calling them as witnesses, then the court may
23 consider that, and apparently those witnesses have been
24 :dentified by the plaintiff as being involved in the
25% various. wrongdoings involving the plaintiff.
26 So my tentative ruling would be to grant the
2T ns It appears that just about everyone who will
28, testify in this case lives in and around Fresno or their
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last known address was in and around Fresno, including
just about all of the nonparty witnesses.
So plaintiff makes several objections. Those
objections are overruled and the tentative ruling is
to grant the motion.
Mr. Hillier, do you wish to be heard?
MR. HILLIER: I do, your Honor, yes.
THE COURT: Go ahead.
MR. HILLIER: Your Honor, this is defendant's second
10 attempt to forum shop. Defendant first tried to convince
11 this court that the case should legally be in Fresno, and
12 that failed, and now the defendant is trying again based
13 on purported inconvenience.
14 Defendant made the 397(c) argument in its first
15 motion to transfer but failed to produce any evidence
16 whatsoever that would substantiate a transfer. This
17 court then generously gave defendant another two months
18 to procure evidence and present admissible evidence
19 regarding inconvenience.
20 Instead, the defendant presented inadmissible
21 evidence that is clearly improper upon a 397(c) motion,
22 namely, declarations from its own employees that there
23 would be inconvenience by venue in Los Angeles.
24 When plaintiff pointed out the inappropriate
25. ure,.of.that evidence in that opposition brief, defendant
fi anged gears and produced new and untimely evidence and
27 arguments in its reply, giving plaintiff no substantive
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ty whatsoever to respond. In other words, multiple
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chances and multiple months were given to this defendant
to procure and produce evidence substantiating transfer,
and they chose to hold on to that evidence until days prior
to the hearing.
Plaintiff is asking that the Court not reward that
sort of surprise tactic, to ignore the untimely evidence,
to deny the motion and award sanctions.
In the alternative, the plaintiff asks the Court
9 for an additional opportunity to respond to defendant's
10 new arguments and evidence.
11 I want to first address the defendant's motion
12 papers. The motion made blanket statements about venue,
13 much without citations. But what they did do is they named
14 a dozen or so witnesses they claimed were necessary for
15 their affirmative defenses who would be inconvenienced by
16 venue here in Los Angeles.
17 As the Court notes, almost all of those
18 declarations that defendant produced -- and of course it is
19 their burden to produce admissible evidence -- almost all of
20 those declarations came from the employees of the defendant.
21 And of course, legally the convenience of a party's
22 employees does not matter for a 397(c) motion?
23 The Lieberman case, which is directly on point
24 here, found exactly that. In fact, in the Liberman case,
25 the State was the employer, they offered 15 declarations
26 Or WL esses, they said would be inconvenienced, 13 of which
27 were the employees, and the court specifically found that
28 the. convenience of those witnesses could not be properly
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considered upon a 397(c) motion. In fact, the court said
it was an abuse of discretion to consider the convenience
of those employees.
The lone declaration that defendant submitted
along with its motion, timely submitted along with its
motion, was from a nonparty witness who didn't live
in Fresno. Her name was Andrea Harvey, she lived in
Stanislaus. And how the Court could find or how it would
be substantiated that the trial should be moved to Fresno
10 based on a single declaration from a nonparty witness
11 who doesn't even live in Fresno --, it shouldn't be
‘
12 substantiated.
13 THE COURT: Well, certainly Stanislaus County is
14 closer to Fresno than it is to Long Beach.
15 MR. HILLIER: There are a lot of counties that are
16 closer to Stanislaus. That doesn't necessarily mean that
17 the trial should be moved there.
18 If that's the only admissible evidence that they're
19 providing, it's not good enough to substantiate a move to
20 Fresno.
21 And when the opposition pointed all this out, the
22 defendant changed gears, they submited new evidence, which
23 is improper, which brings us to the reply and the fact that
24 plaintiff didn't get an opportunity to respond to the reply.
25 I want to discuss it here, and I think there are three very
26 important- items to discuss there. One is timing, one is
27 the tegal arguments, and the final is the factual claims.
28 _ First of ally the timing was improper. Again,
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defendant had months to prepare this and didn't provide
the arguments and the evidence contained in the reply brief
until days before’this hearing. And one of the arguments
that it made in its reply brief, for the very first time,
was the argument that the Court just cited, that apparently
the fact that plaintiff mentioned these individuals in
an administrative complaint puts them at issue or says
that they are going to be called by plaintiff in this case.
And I'll get to that argument in a moment.
10 That is not true. There is no legal authority
11 for that whatsoever. But that just underscores the
12 inappropriateness of the timing here. This is the first
13 time they're making this argument. They're making it in
14 a reply brief and I don't have a substantive ability to
15 respond. That's wrong.
16 And further briefing is necessary too because
17 there were several misstatements of law made in that reply
18 brief, and some suspect factual assertions too.
19 I want to start with the law. In the reply, the
20 defendant argues, for the very first time, that convenience
21 of its own employees should be considered because plaintiff
22 put those individuals, and I'm quoting from defendant's
23 brief here, at issue by mentioning them in administrative
24 complaints.
25 Defendant doesn't provide any authority that would
26 ive the. term "at issue" any legal meaning, and plaintiff
27 is not aware of any authority.
397(c) is convenience of witnesses the parties
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are claiming to call to trial. It has nothing to do with
the naming of witnesses or mentioning of witnesses in a
prior administrative complaint.
And to the extent it's defendant's argument
that plaintiff will have to call these witnesses too,
and therefore their convenience should be considered, one,
that's presumptuous and not true, and two, that argument
was specifically repudiated in the Lieberman case, and
I'm going to give you a cite here, and honestly I feel a
10 little bit silly giving a pin cite at an oral argument
11 but since plaintiff wasn't given an opportunity to this
12 argument I have no other choice.
13 It's Lieberman, and for the reporter that's
14 L-i-e-b-e-r-m-a-n, v. Superior Court, 194 Cal.App.3d at 402.
15 Now, remember, the employer in Lieberman was the
16 State of California, as well. The State identified 13
17 employee witnesses that would be inconvenienced by transfer.
18 And the court said their convenience was not a proper
19 consideration.
20 The Lieberman court noted the State's argument
21 that the plaintiff would have to call the employee witnesses
22 too to prove his case in chief. The State argued there,
23 just like they are apparently doing now, that on that
24 basis, the basis that the plaintiff would have to call
25 these witnesses too, the convenience should be considered.
26 And"the¢ourt™ specifically rejected that argument,
27 repudiated
it, finding the State had been the one who
28 had. identified its employees as witnesses necessary to
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prove its own affirmative defenses, and therefore their
convenience could not be properly considered.
That is literally the exact kind of situation
that we are in now. The defendant named all individuals
as witnesses that they said were necessary for their
affirmative defenses. They said that in a motion before
plaintiff had any chance to name witnesses related to this
motion.
And they said that those witnesses were necessary
10 to prove their affirmative defenses. The Lieberman court
11 specifically said that, on that basis, their convenience
12 cannot be considered. Again, it's an abuse of discretion
13 to do so.
14 There were more legally-deficient claims in
15 defendant's reply brief. The next one was about expert
16 witnesses.
17 Plaintiff provided this court with evidence that
18 witnesses will be inconvenienced if a transfer moves this
19 case away from Los Angeles Those witnesses included
20 defendant's officials there in Long Beach who took actions
21 against defendant. And remember, it is defendant's
22 officials there in Long Beach who suspended him. They're
23 the ones who caused this case. He's been on a temporary
24 s spension: for more than three years at this point because
25 of ‘their. ‘actions.
26 It's those witnesses and the treating physicians
27 who, are. located in Long Beach.
28: Now, defendant claims in the reply that treating
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physicians are experts and, therefore, their convenience
cannot be considered. It is generally true that retained
experts’ convenience cannot be considered.
But the defendant's citation supporting the
law, which is the Baker-Hoey case, Hoey is H-o-e-y, has
nothing to do, that case has nothing to do with venue or
convenience. Baker-Hoey is about whether or not fees paid
to treating physicians are taxable costs upon judgment.
Venue and convenience are not mentioned once.
10 In fact, the only relevant authority in Baker-Hoey
11 is the court's statement that the treating physician is
12 not a retained expert. That is the direct quote. And it
13 is only retained experts whose convenience must be ignored.
14 Courts have found again and again that the
15 convenience of treating physicians is a proper consideration
16 for the purposes of 397(c) because they're percipient
17 experts, not retained. And I'm going to give you more
18 direct citations here again because --
19 THE COURT: I really don't need that. I can find cases.
20 But thank you.
21 MR. HILLIER: Okay.
22 THE COURT: Anything else?
23 MR. HILLIER: Yes, your Honor. One moment.
24 do. want to briefly mention the new facts that
25 were: provided for the very first time in the reply brief.
26 Defendant’ submits new declarations in an effort
-
27 to. upport, its arguments. Right? And it introduces a
28. brand new argument about hardship that wasn't addressed
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at any time before. Plaintiff has not been given an
opportunity to respond to any of those evidentiary
considerations.
To give you an example of what that response
would would look like, one of the individuals named by
the defendant was Erich Simrock. Mr. Simrock had an
allegation against the plaintiff that the defendants
specifically investigated, specifically found to
be unfounded, and therefore found essentially that
10 Mr. Simrock's allegation had no basis in fact.
11 How that individual would then be called as
12 a witness against Dr. El Kharbawy is -- I just don't
13 understand.
14 The same is true of another witness that they
15 provide a declaration from. Tom Zimmerman. Plaintiff
16 has had exactly zero interactions with Tom Zimmerman ever.
17 Not a single e-mail, call, conversation, whatsoever. And
18 plaintiff would be able to give you this context if he was
19 allowed to substantively respond to the new evidence that
20 defendant produced.
21 And my final argument, your Honor, is just a little
22 more broad. I think it's important to bear in mind here the
23 reason this matter came to the court. Defendant is keeping
24 plaintiff on an indefinite temporary suspension, robbing
£, ‘administrative appeal rights. Defendant is currently
26 abusing thé ‘contractual provision of the CBA, which allows
the_university. to temporarily and unilaterally suspend a
28 professor: fo a period of 30 days.
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Defendant first suspended plaintiff in February
2018. He has been on a temporary suspension since that
date. He has been independently suspended 37 times
in Los Angeles. Conceptually it is not Fresno that is
retaliating against Dr. El Kharbawy. It's just not.
It's not some department head who decided to keep him on
suspension for three years. They don't have that power.
It is the Office of the Chancellor who has been directly
involved in all facets of this suspension, including the
10 investigation upon which they rely, basically their whole
11 case.
12 That investigation was ordered by individuals in
13 the Chancellor's Office in Long Beach, the results were
14 provided to those individuals, and the actions they took
15 in response to that report, those actions were perpetrated
16 by those individuals in Long Beach.
17 To say that this case has a tertiary relationship
18 to Long Beach is just not correct. And it isn't what 397(c)
19 is about.
20 The final argument, your Honor, is that the court
21 can't grant this motion at this point. Not all defendants
22 have answered the complaint. And because not all defendants
23 have answered the complaint, the Court can't decide that
24 397(c) convenience of the witnesses is proper. It can't
i 4
rant'this motion and it can't decide that issue.
Gi
26 ‘For’all of those reasons, your Honor, at the
27 Very least the Court should allow plaintiff a substantive
ay
‘opportunity to respond to the new
28 arguments and the new
= =
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Preview
e Electronically FILED by Suppror Court of California, County of Los Angeles on 04/30/2021 01:13 PM Sherri R. Carter, Executive Officer/Clerk of Court, by J. Ballesteros, Deputy Clerk Jesse J. Maddox, Bar No. 219091 jmaddox@lcwlegal.com Nathan T. Jackson, Bar No. 285620 njackson@Ilcwlegal.com LIEBERT CASSIDY WHITMORE A Professional Law Corporation 5250 North Palm Ave, Suite 310 Fresno, California 93704 Telephone: 559.256.7800 Facsimile: 559.449.4535 Attorneys for Defendant BOARD OF TRUSTEES OF CALIFORNIA STATE UNIVERSITY SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF LOS ANGELES 21CE ce 02214 11 A. SAMEH EL KHARBAWY, Case No.: 20LBCV00465 12 Plaintiff, [ASSIGNED FOR ALL PURPOSES TO HON. ges MICHAEL P. VICENCIA, DEPT. S26] g& 13 Vv. aS aR ii Complaint Filed: October 23, 2020 > 14 BOARD OF TRUSTEES OF 926 15 CALIFORNIA STATE UNIVERSITY; DARRYL L. HAMM, an individual; SUPPLEMENTAL DECLARATION OF NATHAN T. JACKSON IN SUPPORT OF #3 LYNNETTE ZELEZNY, an individual: DEFENDANT BOARD OF TRUSTEES OF ag eu 16 JOSEPH I. CASTRO, an individual; CALIFORNIA STATE UNIVERSITY’S <5 SAUL JIMENEZ-SANDOVAL, an. RESPONSE TO PLAINTIFF’S SURREPLY IN 17 individual; XUANNING FU, an OPPOSITION TO MOTION TO TRANSFER individual; AND DOES 1 through 50, VENUE TO FRESNO COUNTY 18 Defendants. 19 (*Exempt from filing fees pursuant to Gov. 20 Code, § 6103.) 21 22 I, Nathan T. Jackson, declare as follows: 23 1 I am an attorney licensed to practice before the all the Courts of the State of California, and I am an associate in the law firm of Liebert Cassidy Whitmore, attorneys for fendant Board of Trustees of California State University (“Defendant”). 26 2 Attached hereto as Exhibit 1 is a true and correct copy of the transcript from the Pi arties’. March 25, 2021, hearing on this motion. 28 a ~ 1 Supplemental Declaration of Nathan T. Jackson 9632664.1 FRO07-003 ne I declare under penalty of perjury under the laws of the United States and the State of California that the foregoing is true and correct. Executed this 30th day of April 2021, at Sacramento, California. Niathan“F-Jacksph 10 11 ge 12 seas Bag 13 Svs ga mE< 14 seg a3es ges 15 3e23 ee <8 16 17 18 19 20 21 22 23 26 28 2 Supplemental Declaration of Nathan T. Jackson 9632664.1 FROO7-003 Exhibit 1 In the Matter of: Kharbawy, A. Sameh vs Board of Trustees of California State University TRANSCRIPT OF PROCEEDINGS March 25, 2021 Job Number: 727424 ¥ CENTEXT LITIGATION SERVICES 855.CENTEXT ne SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES DEPARTMENT S26 HON. MICHAEL P. VICENCIA, JUDGE = - ~ po A. SAMEH EL KHARBAWY, Plaintiff, yb ae BY be vs. Case No. 20LBCV00465 10 BOARD OF TRUSTEES OF CALIFORNIA STATE UNIVERSITY, et al., 11 Defendants. 12 13 14 REPORTER'S TRANSCRIPT OF PROCEEDINGS 15 THURSDAY, MARCH 25, 2021 16 JOB NO. 727424 17 18 19 20 REMOTE .LA COURTCONNECT APPEARANCES OF COUNSEL: 21 FOR PLAINTIFF: HILLIER LAW 22 BY: ANDREW HILLIER, ESQUIRE 600 West Broadway, Suite 700 23 San Diego, California 92101 24 FOR DEFENDANTS: LIEBERT CASSIDY WHITMORE BY: NATHAN T. JACKSON, ESQUIRE 25 ya 400 Capitol mall, Suite 1260 Sacramento, California 95814 26, 27 REPORTED, BY: TIMOTHY J. McCOY, CSR NO. 4745 28 OFFICIAL REPORTER PRO TEMPORE TRANSCRIPT OF PROCEEDINGS - 03/25/2021 INDEX THURSDAY, MARCH 25, 2021 WITNESSES (NONE) EXHIBITS (NONE) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25, i a 26 27. 28 yu CENTEXT LITIGATION SERVICES 855.CENTEXT TRANSCRIPT OF PROCEEDINGS - 03/25/2021 CASE NUMBER: 20LBCV00465 CASE NAME: A. SAMEH EL KHARBAWY vs. BOARD OF TRUSTEES OF CALIFORNIA STATE UNIVERSITY, et al. LONG BEACH, CA THURSDAY, MARCH 25, 2021 DEPARTMENT S26 HON. MICHAEL P. VICENCIA, JUDGE TIME: 8:55 A.M. REPORTER: TIMOTHY J. McCOY, CSR NO. 4745 APPEARANCES: (AS HERETOFORE NOTED) 10 kk Ok 11 12 (The proceedings commenced in open court, with 13 both counsel appearing remotely, as follows:) 14 15 16 THE COURT: Kharbawy versus Board of Trustees. 17 MR. JACKSON: Good morning, your Honor. Nathan Jackson 18 on behalf of the Board of Trustees. 19 MR. HILLIER: Good morning, your Honor. Andrew Hillier 20 on behalf of plaintiff Dr. A. Sameh El Kharbawy. 21 THE COURT: Good morning to you both. 22 This is a second motion to transfer filed by the 23 defendant Board of Trustees. 24 The underlying matter has several causes of action, 25 tall of them, or all of them -- well, almost all 4 st 26 of them rev olve around the alleged wrongful termination 27 he plaintiff. 28 \ Blaintift was employed at Fresno State, part of the CENTEXT LITIGATION SERVICES 855.CENTEXT me TRANSCRIPT OF PROCEEDINGS - 03/25/2021 California State University system, which is headquartered here in Long Beach, and this action has been filed at the Governor George Deukmejian Courthouse here in Long Beach. The motion is brought pursuant to CCP section 397, that is, for the convenience of nonparty witnesses the matter is better heard in the County of Fresno. According to the allegations in the complaint, just about all of the meetings and interactions between the plaintiff and the various people, as well as the internal 10 actions that went on between the various named defendants 11 and other individuals not named as defendants, happened 12 at Fresno State, obviously in Fresno County. 13 The moving party declares that there are some 17 14 witnesses, 15 of whom are employees of Fresno State and 15 live in and around Fresno. They identify a number of other 16 witnesses, including students whose last known addresses 17 are in and around Fresno State. 18 Finally, it's pointed out that while the court 19 does not consider the convenience of witnesses who are 20 employed by one of the parties, if it is the opposing party 21 that brings those folks into the litigation by identifying 22 them or calling them as witnesses, then the court may 23 consider that, and apparently those witnesses have been 24 :dentified by the plaintiff as being involved in the 25% various. wrongdoings involving the plaintiff. 26 So my tentative ruling would be to grant the 2T ns It appears that just about everyone who will 28, testify in this case lives in and around Fresno or their CENTEXT LITIGATION SERVICES 855.CENTEXT TRANSCRIPT OF PROCEEDINGS - 03/25/2021 last known address was in and around Fresno, including just about all of the nonparty witnesses. So plaintiff makes several objections. Those objections are overruled and the tentative ruling is to grant the motion. Mr. Hillier, do you wish to be heard? MR. HILLIER: I do, your Honor, yes. THE COURT: Go ahead. MR. HILLIER: Your Honor, this is defendant's second 10 attempt to forum shop. Defendant first tried to convince 11 this court that the case should legally be in Fresno, and 12 that failed, and now the defendant is trying again based 13 on purported inconvenience. 14 Defendant made the 397(c) argument in its first 15 motion to transfer but failed to produce any evidence 16 whatsoever that would substantiate a transfer. This 17 court then generously gave defendant another two months 18 to procure evidence and present admissible evidence 19 regarding inconvenience. 20 Instead, the defendant presented inadmissible 21 evidence that is clearly improper upon a 397(c) motion, 22 namely, declarations from its own employees that there 23 would be inconvenience by venue in Los Angeles. 24 When plaintiff pointed out the inappropriate 25. ure,.of.that evidence in that opposition brief, defendant fi anged gears and produced new and untimely evidence and 27 arguments in its reply, giving plaintiff no substantive ~ ty whatsoever to respond. In other words, multiple CENTEXT LITIGATION SERVICES 855.CENTEXT TRANSCRIPT OF PROCEEDINGS - 03/25/2021 chances and multiple months were given to this defendant to procure and produce evidence substantiating transfer, and they chose to hold on to that evidence until days prior to the hearing. Plaintiff is asking that the Court not reward that sort of surprise tactic, to ignore the untimely evidence, to deny the motion and award sanctions. In the alternative, the plaintiff asks the Court 9 for an additional opportunity to respond to defendant's 10 new arguments and evidence. 11 I want to first address the defendant's motion 12 papers. The motion made blanket statements about venue, 13 much without citations. But what they did do is they named 14 a dozen or so witnesses they claimed were necessary for 15 their affirmative defenses who would be inconvenienced by 16 venue here in Los Angeles. 17 As the Court notes, almost all of those 18 declarations that defendant produced -- and of course it is 19 their burden to produce admissible evidence -- almost all of 20 those declarations came from the employees of the defendant. 21 And of course, legally the convenience of a party's 22 employees does not matter for a 397(c) motion? 23 The Lieberman case, which is directly on point 24 here, found exactly that. In fact, in the Liberman case, 25 the State was the employer, they offered 15 declarations 26 Or WL esses, they said would be inconvenienced, 13 of which 27 were the employees, and the court specifically found that 28 the. convenience of those witnesses could not be properly CENTEXT LITIGATION SERVICES uy 855.CENTEXT : TRANSCRIPT OF PROCEEDINGS - 03/25/2021 considered upon a 397(c) motion. In fact, the court said it was an abuse of discretion to consider the convenience of those employees. The lone declaration that defendant submitted along with its motion, timely submitted along with its motion, was from a nonparty witness who didn't live in Fresno. Her name was Andrea Harvey, she lived in Stanislaus. And how the Court could find or how it would be substantiated that the trial should be moved to Fresno 10 based on a single declaration from a nonparty witness 11 who doesn't even live in Fresno --, it shouldn't be ‘ 12 substantiated. 13 THE COURT: Well, certainly Stanislaus County is 14 closer to Fresno than it is to Long Beach. 15 MR. HILLIER: There are a lot of counties that are 16 closer to Stanislaus. That doesn't necessarily mean that 17 the trial should be moved there. 18 If that's the only admissible evidence that they're 19 providing, it's not good enough to substantiate a move to 20 Fresno. 21 And when the opposition pointed all this out, the 22 defendant changed gears, they submited new evidence, which 23 is improper, which brings us to the reply and the fact that 24 plaintiff didn't get an opportunity to respond to the reply. 25 I want to discuss it here, and I think there are three very 26 important- items to discuss there. One is timing, one is 27 the tegal arguments, and the final is the factual claims. 28 _ First of ally the timing was improper. Again, - CENTEXT LITIGATION SERVICES 855.CENTEXT TRANSCRIPT OF PROCEEDINGS - 03/25/2021 defendant had months to prepare this and didn't provide the arguments and the evidence contained in the reply brief until days before’this hearing. And one of the arguments that it made in its reply brief, for the very first time, was the argument that the Court just cited, that apparently the fact that plaintiff mentioned these individuals in an administrative complaint puts them at issue or says that they are going to be called by plaintiff in this case. And I'll get to that argument in a moment. 10 That is not true. There is no legal authority 11 for that whatsoever. But that just underscores the 12 inappropriateness of the timing here. This is the first 13 time they're making this argument. They're making it in 14 a reply brief and I don't have a substantive ability to 15 respond. That's wrong. 16 And further briefing is necessary too because 17 there were several misstatements of law made in that reply 18 brief, and some suspect factual assertions too. 19 I want to start with the law. In the reply, the 20 defendant argues, for the very first time, that convenience 21 of its own employees should be considered because plaintiff 22 put those individuals, and I'm quoting from defendant's 23 brief here, at issue by mentioning them in administrative 24 complaints. 25 Defendant doesn't provide any authority that would 26 ive the. term "at issue" any legal meaning, and plaintiff 27 is not aware of any authority. 397(c) is convenience of witnesses the parties CENTEXT LITIGATION SERVICES ‘ 855.CENTEXT . TRANSCRIPT OF PROCEEDINGS - 03/25/2021 are claiming to call to trial. It has nothing to do with the naming of witnesses or mentioning of witnesses in a prior administrative complaint. And to the extent it's defendant's argument that plaintiff will have to call these witnesses too, and therefore their convenience should be considered, one, that's presumptuous and not true, and two, that argument was specifically repudiated in the Lieberman case, and I'm going to give you a cite here, and honestly I feel a 10 little bit silly giving a pin cite at an oral argument 11 but since plaintiff wasn't given an opportunity to this 12 argument I have no other choice. 13 It's Lieberman, and for the reporter that's 14 L-i-e-b-e-r-m-a-n, v. Superior Court, 194 Cal.App.3d at 402. 15 Now, remember, the employer in Lieberman was the 16 State of California, as well. The State identified 13 17 employee witnesses that would be inconvenienced by transfer. 18 And the court said their convenience was not a proper 19 consideration. 20 The Lieberman court noted the State's argument 21 that the plaintiff would have to call the employee witnesses 22 too to prove his case in chief. The State argued there, 23 just like they are apparently doing now, that on that 24 basis, the basis that the plaintiff would have to call 25 these witnesses too, the convenience should be considered. 26 And"the¢ourt™ specifically rejected that argument, 27 repudiated it, finding the State had been the one who 28 had. identified its employees as witnesses necessary to ' CENTEXT LITIGATION SERVICES 855.CENTEXT TRANSCRIPT OF PROCEEDINGS - 03/25/2021 prove its own affirmative defenses, and therefore their convenience could not be properly considered. That is literally the exact kind of situation that we are in now. The defendant named all individuals as witnesses that they said were necessary for their affirmative defenses. They said that in a motion before plaintiff had any chance to name witnesses related to this motion. And they said that those witnesses were necessary 10 to prove their affirmative defenses. The Lieberman court 11 specifically said that, on that basis, their convenience 12 cannot be considered. Again, it's an abuse of discretion 13 to do so. 14 There were more legally-deficient claims in 15 defendant's reply brief. The next one was about expert 16 witnesses. 17 Plaintiff provided this court with evidence that 18 witnesses will be inconvenienced if a transfer moves this 19 case away from Los Angeles Those witnesses included 20 defendant's officials there in Long Beach who took actions 21 against defendant. And remember, it is defendant's 22 officials there in Long Beach who suspended him. They're 23 the ones who caused this case. He's been on a temporary 24 s spension: for more than three years at this point because 25 of ‘their. ‘actions. 26 It's those witnesses and the treating physicians 27 who, are. located in Long Beach. 28: Now, defendant claims in the reply that treating CENTEXT LITIGATION ‘SERVICES 855.CENTEXT 10 ve TRANSCRIPT OF PROCEEDINGS - 03/25/2021 physicians are experts and, therefore, their convenience cannot be considered. It is generally true that retained experts’ convenience cannot be considered. But the defendant's citation supporting the law, which is the Baker-Hoey case, Hoey is H-o-e-y, has nothing to do, that case has nothing to do with venue or convenience. Baker-Hoey is about whether or not fees paid to treating physicians are taxable costs upon judgment. Venue and convenience are not mentioned once. 10 In fact, the only relevant authority in Baker-Hoey 11 is the court's statement that the treating physician is 12 not a retained expert. That is the direct quote. And it 13 is only retained experts whose convenience must be ignored. 14 Courts have found again and again that the 15 convenience of treating physicians is a proper consideration 16 for the purposes of 397(c) because they're percipient 17 experts, not retained. And I'm going to give you more 18 direct citations here again because -- 19 THE COURT: I really don't need that. I can find cases. 20 But thank you. 21 MR. HILLIER: Okay. 22 THE COURT: Anything else? 23 MR. HILLIER: Yes, your Honor. One moment. 24 do. want to briefly mention the new facts that 25 were: provided for the very first time in the reply brief. 26 Defendant’ submits new declarations in an effort - 27 to. upport, its arguments. Right? And it introduces a 28. brand new argument about hardship that wasn't addressed CENTEXT LITIGATION SERVICES 855.CENTEXT a1 TRANSCRIPT OF PROCEEDINGS - 03/25/2021 at any time before. Plaintiff has not been given an opportunity to respond to any of those evidentiary considerations. To give you an example of what that response would would look like, one of the individuals named by the defendant was Erich Simrock. Mr. Simrock had an allegation against the plaintiff that the defendants specifically investigated, specifically found to be unfounded, and therefore found essentially that 10 Mr. Simrock's allegation had no basis in fact. 11 How that individual would then be called as 12 a witness against Dr. El Kharbawy is -- I just don't 13 understand. 14 The same is true of another witness that they 15 provide a declaration from. Tom Zimmerman. Plaintiff 16 has had exactly zero interactions with Tom Zimmerman ever. 17 Not a single e-mail, call, conversation, whatsoever. And 18 plaintiff would be able to give you this context if he was 19 allowed to substantively respond to the new evidence that 20 defendant produced. 21 And my final argument, your Honor, is just a little 22 more broad. I think it's important to bear in mind here the 23 reason this matter came to the court. Defendant is keeping 24 plaintiff on an indefinite temporary suspension, robbing £, ‘administrative appeal rights. Defendant is currently 26 abusing thé ‘contractual provision of the CBA, which allows the_university. to temporarily and unilaterally suspend a 28 professor: fo a period of 30 days. CENTEXT LITIGATION SERVICES 855.CENTEXT 12 TRANSCRIPT OF PROCEEDINGS - 03/25/2021 Defendant first suspended plaintiff in February 2018. He has been on a temporary suspension since that date. He has been independently suspended 37 times in Los Angeles. Conceptually it is not Fresno that is retaliating against Dr. El Kharbawy. It's just not. It's not some department head who decided to keep him on suspension for three years. They don't have that power. It is the Office of the Chancellor who has been directly involved in all facets of this suspension, including the 10 investigation upon which they rely, basically their whole 11 case. 12 That investigation was ordered by individuals in 13 the Chancellor's Office in Long Beach, the results were 14 provided to those individuals, and the actions they took 15 in response to that report, those actions were perpetrated 16 by those individuals in Long Beach. 17 To say that this case has a tertiary relationship 18 to Long Beach is just not correct. And it isn't what 397(c) 19 is about. 20 The final argument, your Honor, is that the court 21 can't grant this motion at this point. Not all defendants 22 have answered the complaint. And because not all defendants 23 have answered the complaint, the Court can't decide that 24 397(c) convenience of the witnesses is proper. It can't i 4 rant'this motion and it can't decide that issue. Gi 26 ‘For’all of those reasons, your Honor, at the 27 Very least the Court should allow plaintiff a substantive ay ‘opportunity to respond to the new 28 arguments and the new = = CENTEXT LITIGATION SERVICES 855.CENTEXT