Preview
JesseJ. Maddox, Bar No. 219091 E-FILED
jmaddox@Icwlegal.com 8/10/2021 4:47 PM
Nathan T. Jackson, Bar No. 285620 Superior Court of California
jacksor Lcwl com. County of Fresno
LIEBERT CASSIDY WHITMORE
A Professional Law Corporation By: L Peterson, Deputy
5250 North Palm Ave, Suite 310
Fresno, Califomia 93704
Telephone: 559.256.7800
Facsimile: 559.449.4535
Attol for Defendant BOARD OF TRUSTEES OF
CALIFORNIA STATE UNIVERSITY
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF FRESNO
11 A. SAMEH EL KHARBAWY, Case No.: 21CECG02214
12 Plaintiff, [ASSIGNED FOR ALL PURPOSES TO
gas ROSEMARY MCGUIRE, DEPT. 502]
13 Vv.
Complaint Filed: October 23, 2020
Bas 14 BOARD OF TRUSTEES OF
see
a8 15
CALIFORNIA STATE UNIVERSITY ;
DARRYL L. HAMM, an individual;
DECLARATION OF NATHANT. JACKSON
IN SUPPORT OF DEFENDANT BOARD OF
LY NNEITTE ZELEZNY, an individual; TRUSTEES OF CALIFORNIA STATE
tin
16 JOSEPH I. CASTRO, an individual; UNIVERSITY’S EX PARTE APPLICATION
SAUL JIMENEZ-SANDOVAL, an TO () EXCEED PAGE LIMITS FOR ANII-
17 individual; XUANNING FU, an SLAPP MOTION, AND (2) FILE ENTIRE
individual; AND DOES 1 through 50, WORKPLACE INVESTIGATION REPORT
18 UNDER SEAL
Defendant.
19 Date: A 11, 2021
Time: 3: pm
20 Dept: 502
21 from filing fees pursuant to Gov.
Code, § 6108)
23 I, Nathan T. Jackson, declare as follows:
1 I aman attomey licensed to practice before all Courts in the of State of Califomia,
25 andI aman associate in the law firm of Liebert Cassidy Whitmore, attomeys
for Defendant Board.
26 of Trustees of Califomia State University (“CSU”). I have personal knowledge of each matter
27 stated herein, and if called upon to do so, I could and would competently
testify thereto.
Ml
1
Declaration of Jackson
in Support of Defendant’ s Ex Parte Application
9688174.1 FROO7-003
Ex-Parte Notice
2. On August 10, 2021, at 9:59 am, I notified Plaintiff’s counsel, Andrew Hillier, via
email of this ex-parte request, including when and where it would be filed, the specific relief
requested, and the grounds for ex-parte relief. At the time of filing
this application, Hillier
has not
responded. Consequently, I do not know if he intendsto oppose it. Attached hereto as ExhibitA
is a true and correct copy of the above referenced correspondence.
Relevant Background
3, Plaintiff filed his lawsuit on October 23, 2020, in Los Angeles County Superior
Court. A true and correct copy of his lawsuit is attached hereto as Exhibit B.
10 4. CSU filed a motion to transfer venue to Fresno County pursuant to Govemment
11 Code section 955.2 on December 21, 2020. That motion was denied, but the Court gave CSU
gO 12 leave to file a motion to transfer venue pursuant to Code of Civil Procedure section 397, and the
28S
aa
13 Court set a hearing date for March 25, 2021. CSU filed a motion
to transfer under Code of Civil
ga
Ba 14 Procedure
section 397 on March 1, 2021. The court granted the second motion. A true and
see
es
15 correct copy of the Court’s order granting the second motion to transfer venue (dated May 19,
a8
tid
16 2021) is attached
hereto as Exhibit C. The Parties have not been engaged in any motion practice
17 since the Court granted CSU’s motion to transfer venue.
18 5, On August 9, 2021, my law firm received notification by mail that CSU received a
19 Fresno County Superior Court case number for this matter.
20 6. The Parties have propounded written discovery and are currently meeting and.
21 conferring over what each side contends is the other's deficient responses.
7, CSU is the only named defendant who has answered to date.
23 A Page Limit Extension
Is Warranted
8. There are a number of intemal and/or administrative complaints referenced in
25 Plaintiff’ s lawsuit, and there are separate, statutory administrative exhaustion frameworks for
26 several causes of action (e.g., the Fair Employment & Housing Act, the Whistleblower Protection.
27 Act, and the Govemment
Tort Claims Act). With this in mind, my understanding
is that to meet
its initial burden on an anti-SLAPP motion, CSU must identify the activities it contends are
2
Declaration of Nathan Jackson in Support of Defendant’ s Ex Parte Application
9688174.1 FROO7-003
protected by the anti-SLAPP statute, and provide the Court with supporting legal authority. It
must then explain how Plaintiff's claims “arise” from that protected activity, and during the
second prong of the anti-SLAPP test, CSU must also discuss why Plaintiff cannot prevail on his
claims. Based on my review of Plaintiff's claims to date, this will (at least) entail explaining why
I believe Plaintiff failed to exhaust his administrative remedies under the Government Claims Act
and the Whistleblower Protection Act, CSU’s good faith and non-retaliatory justifications for its
decisions, and the absence of pretext. I will also need to address the tolling agreements
referenced in Plaintiffs lawsuit. These and other arguments would be discussed in the anti-
SLAPP motion to help establish that Plaintiff cannot show a probability of prevailing.
10 Wilke Fleury Investigation Report
11 9 The Parties do not have a protective order in place. I sent Mr. Hillier a draft
so
gS 12 protective order on June 21, 2021, and to date he has not sent me proposed edits or revisions. He
ot
se 13 has also not agreed to the version I sent him on June 21, 2021.
aR
BO
> 14 10. Plaintiff was suspended in February of 2018 following allegations of workplace
34
15 misconduct. The law firm of Wilke Fleury investigated those allegations, and a report was
BEEZ
Ese
AEs 16 produced as a result of that investigation. A number of Plaintiff's former students were
»
DA’ i
17 ie
a JUDGE OF THE SUPERIOR COURT
18 Michael P. Vicencia / Judge
19
20
21
23
25
26
27
2
[Proposed] Order Granting Defendant Board of Trustees of Califomia State University’s Motion to Transfer
Case to Fresno County
9637803.1 FROO7-003
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SACRAMENTO
Tam employed in the County of Sacramento, State of Califomia. I am over
the age of 18
and not a party to the within action; my business address is: 400 Capitol Mall, Suite 1260,
Sacramento, CA 95814,
On May 5, 2021, I served the foregoing document(s) described
as [PROPOSED]
ORDER GRANTING DEFENDANT BOARD OF TRUSTEES OF CALIFORNIA STATE
UNIVERSITY’S MOTION TO TRANSFER CASE TO FRESNO COUNTY in the manner
checked below on all interested parties in this action addressed as follows:
10 Andrew Hillier
Paul Garcia
11 Hillier Law
600 W. Bi , Suite 700
12 San Diego, CA 92101
egs. tel me: 619.500.7906
13 facsimile: 619.839.3895
email: andrew@ahilliedaw.com;
36 14 paul @ahilliedaw.com
é 15 M4 (BY ELECTRONIC SERVICE) By electroni mailing a true and correct copy
a8
vier Liebert Cassidy Whitmore's electronic ay gaan ho
Eg? 16 i 1st@1cwiegal.com to the email address(es) set forth above. I did not
receive, within a reasonable time after the transmission, any electronic message or
17 other indication that the transmission was unsuccessful.
18 Executed on May 5, 2021, at Sacramento, Califomia.
19 I declare
under penalty of perjury
under the laws of the State of Califomia
that the
20 foregoing is true and correct.
Nortorn. Urtlbetint
21 Mariana Wibbenhorst
23
25
26
27
3
Proof of Service
9637803.1 FROO7-003
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SACRAMENTO
Iam employed in the County of Sacramento, State of California. I am over the age of 18
and not a party to the within action; my business address is: 400 Capitol Mall, Suite 1260,
Sacramento, CA 95814.
On August 10, 2021, I served the foregoing document(s) described as DECLARATION
OF NATHAN T. JACKSON IN SUPPORT OF DEFENDANT BOARD OF TRUSTEES OF
CALIFORNIA STATE UNIVERSITY’S EX PARTE APPLICATION TO (1) EXCEED
PAGE LIMITS FOR ANTI-SLAPP MOTION, AND (2) FILE ENTIRE WORKPLACE
10 INVESTIGATION REPORT UNDER SEAL in the manner checked below on all interested
ll parties in this action addressed as follows:
12 Andrew Hillier
a+ Paul Garcia
2B
ee 13 Hillier Law
5a
50 n< 600 W. Broadway, Suite 700
eo 14 San Diego, CA 92101
24
telephone: 619.500.7906
15 facsimile: 619.839.3895
Bou email: andrew@ahillierlaw.com;
3éE8S 16 paul @ahillierlaw.com
17
Y (BY ELECTRONIC SERVICE) By electronically mailing a true and correct copy
18 through Liebert Cassidy Whitmore’s electronic mail system from
mwibbenhorst@lcwlegal.com to the email address(es) set forth above. I did not
19 receive, within a reasonable time after the transmission, any electronic message or
other indication that the transmission was unsuccessful.
20
Executed on August 10, 2021, at Sacramento, California.
21
I declare under penalty of perjury under the laws of the State of California that the
22
foregoing is true and correct.
23
Mariana Wibbenhorst
24
25
26
27
28
5
Proof of Service
9688 174.1 FROO7-003
Preview
JesseJ. Maddox, Bar No. 219091 E-FILED jmaddox@Icwlegal.com 8/10/2021 4:47 PM Nathan T. Jackson, Bar No. 285620 Superior Court of California jacksor Lcwl com. County of Fresno LIEBERT CASSIDY WHITMORE A Professional Law Corporation By: L Peterson, Deputy 5250 North Palm Ave, Suite 310 Fresno, Califomia 93704 Telephone: 559.256.7800 Facsimile: 559.449.4535 Attol for Defendant BOARD OF TRUSTEES OF CALIFORNIA STATE UNIVERSITY SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF FRESNO 11 A. SAMEH EL KHARBAWY, Case No.: 21CECG02214 12 Plaintiff, [ASSIGNED FOR ALL PURPOSES TO gas ROSEMARY MCGUIRE, DEPT. 502] 13 Vv. Complaint Filed: October 23, 2020 Bas 14 BOARD OF TRUSTEES OF see a8 15 CALIFORNIA STATE UNIVERSITY ; DARRYL L. HAMM, an individual; DECLARATION OF NATHANT. JACKSON IN SUPPORT OF DEFENDANT BOARD OF LY NNEITTE ZELEZNY, an individual; TRUSTEES OF CALIFORNIA STATE tin 16 JOSEPH I. CASTRO, an individual; UNIVERSITY’S EX PARTE APPLICATION SAUL JIMENEZ-SANDOVAL, an TO () EXCEED PAGE LIMITS FOR ANII- 17 individual; XUANNING FU, an SLAPP MOTION, AND (2) FILE ENTIRE individual; AND DOES 1 through 50, WORKPLACE INVESTIGATION REPORT 18 UNDER SEAL Defendant. 19 Date: A 11, 2021 Time: 3: pm 20 Dept: 502 21 from filing fees pursuant to Gov. Code, § 6108) 23 I, Nathan T. Jackson, declare as follows: 1 I aman attomey licensed to practice before all Courts in the of State of Califomia, 25 andI aman associate in the law firm of Liebert Cassidy Whitmore, attomeys for Defendant Board. 26 of Trustees of Califomia State University (“CSU”). I have personal knowledge of each matter 27 stated herein, and if called upon to do so, I could and would competently testify thereto. Ml 1 Declaration of Jackson in Support of Defendant’ s Ex Parte Application 9688174.1 FROO7-003 Ex-Parte Notice 2. On August 10, 2021, at 9:59 am, I notified Plaintiff’s counsel, Andrew Hillier, via email of this ex-parte request, including when and where it would be filed, the specific relief requested, and the grounds for ex-parte relief. At the time of filing this application, Hillier has not responded. Consequently, I do not know if he intendsto oppose it. Attached hereto as ExhibitA is a true and correct copy of the above referenced correspondence. Relevant Background 3, Plaintiff filed his lawsuit on October 23, 2020, in Los Angeles County Superior Court. A true and correct copy of his lawsuit is attached hereto as Exhibit B. 10 4. CSU filed a motion to transfer venue to Fresno County pursuant to Govemment 11 Code section 955.2 on December 21, 2020. That motion was denied, but the Court gave CSU gO 12 leave to file a motion to transfer venue pursuant to Code of Civil Procedure section 397, and the 28S aa 13 Court set a hearing date for March 25, 2021. CSU filed a motion to transfer under Code of Civil ga Ba 14 Procedure section 397 on March 1, 2021. The court granted the second motion. A true and see es 15 correct copy of the Court’s order granting the second motion to transfer venue (dated May 19, a8 tid 16 2021) is attached hereto as Exhibit C. The Parties have not been engaged in any motion practice 17 since the Court granted CSU’s motion to transfer venue. 18 5, On August 9, 2021, my law firm received notification by mail that CSU received a 19 Fresno County Superior Court case number for this matter. 20 6. The Parties have propounded written discovery and are currently meeting and. 21 conferring over what each side contends is the other's deficient responses. 7, CSU is the only named defendant who has answered to date. 23 A Page Limit Extension Is Warranted 8. There are a number of intemal and/or administrative complaints referenced in 25 Plaintiff’ s lawsuit, and there are separate, statutory administrative exhaustion frameworks for 26 several causes of action (e.g., the Fair Employment & Housing Act, the Whistleblower Protection. 27 Act, and the Govemment Tort Claims Act). With this in mind, my understanding is that to meet its initial burden on an anti-SLAPP motion, CSU must identify the activities it contends are 2 Declaration of Nathan Jackson in Support of Defendant’ s Ex Parte Application 9688174.1 FROO7-003 protected by the anti-SLAPP statute, and provide the Court with supporting legal authority. It must then explain how Plaintiff's claims “arise” from that protected activity, and during the second prong of the anti-SLAPP test, CSU must also discuss why Plaintiff cannot prevail on his claims. Based on my review of Plaintiff's claims to date, this will (at least) entail explaining why I believe Plaintiff failed to exhaust his administrative remedies under the Government Claims Act and the Whistleblower Protection Act, CSU’s good faith and non-retaliatory justifications for its decisions, and the absence of pretext. I will also need to address the tolling agreements referenced in Plaintiffs lawsuit. These and other arguments would be discussed in the anti- SLAPP motion to help establish that Plaintiff cannot show a probability of prevailing. 10 Wilke Fleury Investigation Report 11 9 The Parties do not have a protective order in place. I sent Mr. Hillier a draft so gS 12 protective order on June 21, 2021, and to date he has not sent me proposed edits or revisions. He ot se 13 has also not agreed to the version I sent him on June 21, 2021. aR BO > 14 10. Plaintiff was suspended in February of 2018 following allegations of workplace 34 15 misconduct. The law firm of Wilke Fleury investigated those allegations, and a report was BEEZ Ese AEs 16 produced as a result of that investigation. A number of Plaintiff's former students were » DA’ i 17 ie a JUDGE OF THE SUPERIOR COURT 18 Michael P. Vicencia / Judge 19 20 21 23 25 26 27 2 [Proposed] Order Granting Defendant Board of Trustees of Califomia State University’s Motion to Transfer Case to Fresno County 9637803.1 FROO7-003 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SACRAMENTO Tam employed in the County of Sacramento, State of Califomia. I am over the age of 18 and not a party to the within action; my business address is: 400 Capitol Mall, Suite 1260, Sacramento, CA 95814, On May 5, 2021, I served the foregoing document(s) described as [PROPOSED] ORDER GRANTING DEFENDANT BOARD OF TRUSTEES OF CALIFORNIA STATE UNIVERSITY’S MOTION TO TRANSFER CASE TO FRESNO COUNTY in the manner checked below on all interested parties in this action addressed as follows: 10 Andrew Hillier Paul Garcia 11 Hillier Law 600 W. Bi , Suite 700 12 San Diego, CA 92101 egs. tel me: 619.500.7906 13 facsimile: 619.839.3895 email: andrew@ahilliedaw.com; 36 14 paul @ahilliedaw.com é 15 M4 (BY ELECTRONIC SERVICE) By electroni mailing a true and correct copy a8 vier Liebert Cassidy Whitmore's electronic ay gaan ho Eg? 16 i 1st@1cwiegal.com to the email address(es) set forth above. I did not receive, within a reasonable time after the transmission, any electronic message or 17 other indication that the transmission was unsuccessful. 18 Executed on May 5, 2021, at Sacramento, Califomia. 19 I declare under penalty of perjury under the laws of the State of Califomia that the 20 foregoing is true and correct. Nortorn. Urtlbetint 21 Mariana Wibbenhorst 23 25 26 27 3 Proof of Service 9637803.1 FROO7-003 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SACRAMENTO Iam employed in the County of Sacramento, State of California. I am over the age of 18 and not a party to the within action; my business address is: 400 Capitol Mall, Suite 1260, Sacramento, CA 95814. On August 10, 2021, I served the foregoing document(s) described as DECLARATION OF NATHAN T. JACKSON IN SUPPORT OF DEFENDANT BOARD OF TRUSTEES OF CALIFORNIA STATE UNIVERSITY’S EX PARTE APPLICATION TO (1) EXCEED PAGE LIMITS FOR ANTI-SLAPP MOTION, AND (2) FILE ENTIRE WORKPLACE 10 INVESTIGATION REPORT UNDER SEAL in the manner checked below on all interested ll parties in this action addressed as follows: 12 Andrew Hillier a+ Paul Garcia 2B ee 13 Hillier Law 5a 50 n< 600 W. Broadway, Suite 700 eo 14 San Diego, CA 92101 24 telephone: 619.500.7906 15 facsimile: 619.839.3895 Bou email: andrew@ahillierlaw.com; 3éE8S 16 paul @ahillierlaw.com 17 Y (BY ELECTRONIC SERVICE) By electronically mailing a true and correct copy 18 through Liebert Cassidy Whitmore’s electronic mail system from mwibbenhorst@lcwlegal.com to the email address(es) set forth above. I did not 19 receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 20 Executed on August 10, 2021, at Sacramento, California. 21 I declare under penalty of perjury under the laws of the State of California that the 22 foregoing is true and correct. 23 Mariana Wibbenhorst 24 25 26 27 28 5 Proof of Service 9688 174.1 FROO7-003