Preview
E-FILED
H‘lher Law Superior Court of California
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600 W. Broadway, Sulte 700
County 0f Fresno
San Diego, CA 92101 L Peterson, Deputy
By:
Telephone: (619) 500-7906
Facsimile: (619) 839-3895
andrew@ahillierlaw.com
Attorney for Plaintiff,
A. Sameh E1 Kharbawy
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY 0F FRESNO
A. SAMEH EL KHARBAWY, Case No.: 21CECG02214
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Plaintiff’
PLAINTIFF A. SAMEH EL
KHARBAWY’S NOTICE 0F DEPOSIT
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VS. 0F JURY FEES
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BOARD 0F TRUSTEES 0F THE Assigned for all Purposes t0:
CALIFORNIA STATE UNIVERSITY;
DARRYL L. HAMM, an individual; Dept .
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LYNNETTE ZELEZNY, Judge: H0“ Kimberly A" Gaab
an individual;
15 JOSEPH l.CASTRO, an individual;
SAUL JIMENELSANDOVAL, an individual;
16 XUANNING FU, an individual;
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AND DOES 1 through 50,
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PLAINTIFF A. SAMEH EL KHARBAWY’S NOTICE OF DEPOSIT OF JURY FEES
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TO THE COURT, ALL PARTIES, AND THEIR RESPECTIVE ATTORNEYS OF
RECORD:
PLEASE TAKE NOTICE that in the above-referenced case, the fee pursuant to Code 0f
Civil Procedure section 631 (in the amount 0f $150) is tendered 0n behalf of Plaintiff A. Sameh
E1 Kharbawy.
Dated: September 30, 2021
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Respectfully Submitted,
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Andrew E. ,
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A. Samch El Kharbawy
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PLAINTIFF A. SAMEH EL KHARBAWY’S NOTICE OF DEPOSIT OF JURY FEES
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MEMORANDUM 0F POINTS AND AUTHORITIES
I. INTRODUCTION
This is an employment and civil rights action. Plaintiff Dr. A. Sameh E1 Kharbawy
(“P1aintiff’) alleges that the named defendants systematically harassed and retaliated against him
because 0f his well—documented opposition to and whistleblower disclosures of discrimination,
corruption, fraud, and other illegal acts perpetrated by the California State University and its
officials. Defendants’ retaliation resulted in a “temporary” suspension 0f Plaintiff’ s employment
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that has lasted nearly four years. Since February 2018, Defendant has suspended Plaintifi’g
employment 44 times, each suspension lasting 30 days i the maximum period allowed by policy
10 and contract. The “temporary” nature of the suspension does not provide Plaintiff substantive
11 appeal 0r due process rights t0 grieve the action. T0 justify this unlawful, retaliatory suspension
12 Defendants relied on demonstrably false pretexts and baseless accusations 0f benign Violations 0f
13 University policy, like failing t0 hold office hours and meeting With a class at the wrong time.
14 Plaintiff was forced t0 bring this action t0 court after Defendants repeatedly violated his rights.
15 On September 17, 2021 ,
Defendant Board of Trustees for the California State University
16 (“Defendant”) filed a motion to strike four causes of action in Plaintiff’s Complaint under
17 California’s anti-SLAPP statute (“the Motion”). The Motion was filed more than 10 months after
18 Defendant was served with the summons and complaint in this matter and more than 8 months
19 after the statutory time period for filing an anti-SLAPP motion expired. Despite being more than
20 260 days tardy in filing the Motion, Defendant did not even seek permission from this Court to
21 file a late motion.
22 Defendant’s Motion is substantively circumspect. For example, Defendant claims that
23 Plaintiffs cause of action for retaliation under California Labor Code § 1102.5 should be struck
24 under the anti-SLAPP statute because, they claim, the alleged retaliatory actions are protected
25 speech. Defendant identifies its own false allegations of wrongdoing against Plaintiff (which
26 Plaintiff alleges were pretext for a real, retaliatory motive) as “protected” under the anti-SLAPP
27 statute and under an official proceedings privilege. Defendant argues that since the allegations
28 are protected speech, they cannot be the basis for a retaliation cause 0f action. But Defendant
PLAINTIFF A. SAMEH EL KHARBAWY’S NOTICE OF DEPOSIT OF JURY FEES
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ignores the fact that the false and manufactured allegations of wrongdoing against Plaintiff are
not the adverse employment action at issue here; it is Defendant’s ongoing, interminable
suspension of Plaintiffs employment that is challenged in the retaliation action. Defendant’s 44
independent decisions t0 suspend Plaintiff s employment, creating a four-year professional limbo
for Plaintiff, cannot constitute protected speech and cannot be protected under anti-SLAPP
provisions. “[A] claim does not ‘arise from’ protected activity simply because itwas filed after,
0r because 0f, protected activity, 0r when protected activity merely provides evidentiary support
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0r context for the claim. Rather, the protected activity must ‘supply elements 0f the challenged
claim.” (Rand Res, LLC v. City afCarson (2019) 6 Ca1.5th 610, 621 [quoting Park v. Board 0f
10 Trustees ofCalifornia State University (2017) 2 Cal.5th 1057, 1064].)
11 However, the Court need not reach a decision 0n the substance 0f the Motion, because
12 Defendant failed t0 timely file it.Pursuant to C.C.P. § 425.166), to be heard as a matter 0f right,
13 a Defendant must file an anti-SLAPP motion within 60 days of service of the Complaint.
14 Defendant missed that deadline in this case by three-quarters of a year. In the interim time,
15 Defendant has been litigating the matter, forcing Plaintiff to expend time and money on motions
16 and discovery. Now, nearly a year into the case, and nearly 9 months too late, Defendant moves
17 this Court for an order (under the anti-SLAPP statute) decreeing that this matter is worth neither
18 the time nor the expense that Defendant has already forced plaintiff t0 expend. It isan absurd
19 position, and one that significantly prejudices Plaintiff. The Court must strike the Motion as
20 untimely.
21 II. EX PARTE RELIEF IS WARRANTED UNDER THE CIRCUMSTANCES
22 As stated in the Declaration of Andrew E. Hillier, filed herewith, Plaintiff will suffer
23 irreparable harm if the relief requested herein is not granted. Defendant failed to timely file the
24 Motion and a hearing date 0n said motion is set for October 19, 2021. If ex parte relief is not
25 granted, Plaintiff will be forced t0 expend significant resources responding t0 an untimely,
26 unmeritorious motion. While it is possible t0 file a noticed motion to strike, Plaintiff cannot
27 obtain a noticed motion date prior to October 19, 2021, so the relief sought herein cannot be
28 granted 0n a regularly noticed motion. (Hillier Decl. at fl XX.)
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III. COUNSEL HAS FULLY COMPLIED WITH CALIFORNIA RULES OF COURT
IN NOTICING THIS EXPARTE APPLICATION
As stated in the Declaration 0f Andrew E. Hillier, filed herewith, counsel has duly
complied With the notice requirements of California Rules of Court, Rule 3.1204 by informing
opposing counsel 0f where and when this application will be made and by inquiring as to Whether
0r not opposition is expected. (Hillier Decl. at fl XX.) Plaintiff s counsel provided the notice Via
email t0 Defendant’s counsel at 9:48 a.m. the day prior t0 the ex part6 hearing. Defendant’s
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counsel, Nathan Jackson, stated that Defendant would oppose this application.
IV. THE COURT SHOULD EXERCISE ITS INHERENT AUTHORITY TO STRIKE
10 DEFENDANT’S UNTIMELY MOTION
11 California Code of Civil Procedure (C.CAP.) § 436 provides: “The court may, at any
12 time in its discretion, and upon terms itdeems proper: [fl] (b) Strike out all 0r any part 0f any
13 pleading not filed in conformity With the laws 0f this state, a court rule, 0r an order 0f the
14 court.”
15 A. The Motion Does not Conform with the Laws of this State as It Is Untimely
16 Pursuant t0 C.C.P. § 425.16gfl.
17 C.C.P. § 425.166) requires that any special motion to strike under California’s anti-
18 SLAPP statute be filed within 60 days of service 0fthe Complaint 0r, at the Court’s discretion, at
19 a later time only upon “terms itdeems proper.” Courts have recognized two purposes for the 60-
20 day limitation:
21 One is t0 require presentation and resolution of the anti-SLAPP claim at the outset
of the litigation before the parties have undertaken the expenses of litigation that
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begin to accrue after the pleading stage ofthe lawsuit. The other is t0 avoid tactical
manipulation of the stays that attend anti-SLAPP proceedings. The “prejudice” to
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the opponent pertinent to these purposes is that which attends having to suffer such
expenses 0r be subjected to such a stay.
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(Olsen v. Harbison (2005) 134 Cal.App.4th 278, 287.)
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“Section 425.16 provides a means for the prompt and relatively inexpensive resolution 0f
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lawsuits that threaten free speech. But italso ‘present[s] the possibility for abuse 0f the anti-
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SLAPP statute.”’ (Newport Harbor at p. 655 [quoting Platypus Wear, Inc. v. Goldberg (2008)
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166 Ca1.App.4th 772, 783].) Given the provisions of section 425. 16 that stay all discovery and, if
the anti-SLAPP motion isappealed, stay all trialcourt proceedings, there is an “ironic unintended
consequence that anti-SLAPP procedures, enacted to curb abusive litigation, are also prone to
abuse.” (Olsen v. Harbison (2005) 134 Ca1.App.4th 278, 283.) “[S]0me anti-SLAPP appeals will
undoubtedly delay litigation even though the appeal isfrivolous 0r insubstantial. ...[S]uch a result
may encourage defendants t0 ‘misuse the [anti-SLAPP] motions t0 delay meritorious litigation 0r
for other purely strategic purposes.” (Varian Medical Systems, Inc. (2005) 35 Cal.4th 180, 195
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[quoting People ex rel.Lockyer v4 Brar (2004) 115 Ca1.App.4th 1315, 1318 (“You don’tjust get
the right t0 go t0 the appellate court, you also get a free time-out in the trial court.”)].)
10 Accordingly, “[a]n anti-SLAPP motion is not a vehicle for a defendant t0 obtain a
11 dismissal 0f claims in the middle of litigation; it is a procedural device t0 prevent costly,
12 unmeritorious litigation at the initiation of the lawsuit.” (Newport Harbor, 4 Cal.5th at p. 645
13 [quoting San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Ca.App.4th
14 61 1, 625-626] (emphasis added).) “...[S]ection 425.16, subdivision (f), should be interpreted. ..to
15 prohibit belated motions that could have been brought earlier (subject t0 the trialcourt’s discretion
16 t0 permit a late motion). This interpretation maximizes the possibility the anti-SLAPP statute Will
17 fulfill itspurpose while reducing the potential for abuse.” (Newport Harbor, 4 Cal.5th at 645.)
18 A defendant’s failure to timely file an anti-SLAPP motion forces the parties to incur costs
19 that a timely-filed motion could have avoided, and as those costs increase, “the capacity of an
20 anti-SLAPP motion t0 satisfy the statutory purpose diminishes.” (Hewlett—Packard C0. v. Oracle
21 Corp. (2015) 239 Ca1.App.4th 1174, 1188.) Thus, “every case will come to a point beyond which
22 an anti-SLAPP motion simply cannot perform itsintended function. .. the trial court cannot abuse
23 its discretion by refusing to hear it.”(Ibid)
24 Here, Defendant filed the Motion well after 60-day timeframe. In fact, it isindisputable
25 that 330 days have passed since Defendant was served With the Complaint in this matter 0n
26 November 4, 2020. (Hillier Decl., 1]XX.) While Defendant admits that the Motion is untimely
27 (Mot. at 16: 17-18) Defendant provides littlein the way ofjustification for itsfailure to follow the
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relevant statutory timeframes. And, indeed, Defendant cannot demonstrate such justification
because it has already acted in a manner antithetical t0 relief under the anti-SLAPP statute.
Defendant litigated this matter for nearly a year prior to its filing 0f the Motion. In that
time, Defendant filed multiple motions to transfer venue, propounded discoverv requests
related t0 the causes 0f action in now seeks t0 strike, and applied for discovery conferences
related t0 those same requests. (Hillier Decl. at fl XX.) All 0f these actions caused Plaintiff to
expend time and expense in litigation and discovery. In other words, Defendant has forced
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Plaintiff to expend effort, energy, and resources 0n a case itnow claim578 months lateliis not
worthy of the expenditure 0f effort, energy, and resources. It istruly an absurd position. And the
10 above case law is clear: such actions constitute an abuse 0f the anti-SLAPP statute.
11 This case isbeyond this point where the purposes 0f the anti-SLAPP statute can be served,
12 and the Court iswell Within its discretion to refuse to hear Defendant’s untimely motion. Other
13 courts have properly refused t0 hear anti-SLAPP motions for delays much shorter than What we
14 have here. (See, e.g. Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 680-81
15 [motion proparly denied as untimely where ll3 days elapsed between service of complaint and
16 filing 0f motion]; Morin v. Rosenthal (2004) 122 Cal.App.4th 673, 681 (as modified on denial 0f
17 reh’g) [n0 abuse 0f discretion to deny as untimely motions filed 90 days after remand from federal
18 bankruptcy court]; Kunysz v.Sandler (2007) 146 Ca1.App.4th 1540, 1543 [no abuse of discretion
19 to deny, partly on timeliness grounds, motion for reconsideration filed some 10 months after
20 initial timely motion]; Olsen v. Harbison, supra, 134 Cal.App.4th at pp. 282, 283 [appeal
21 dismissed as frivolous where motion filed 278 days after service].)
22 B. None of Defendant’s Proffered Excuses Justify the Untimeliness of the Motion.
23 Defendant offers a series 0f meek excuses in an attempt to justify the late-filed Motion.
24 Defendant’s purported rationales are false, unsupported by law, or both.
25 First, incredibly, Defendant claims it received permission t0 file a late anti-SLAPP
26 motion through an ex parte application to extend the page limit of the Motion granted by Judge
27 McGuire (Who was assigned to this matter at the time). (Mot, 1718-10.) The claim is
28 disingenuous at best, and more akin to an affirmative attempt t0 mislead this court. Defendant
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never asked Judge McGuire for permission to file a late anti-SLAPP motion, and Judge McGuire
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parte
granted such
application
permission.
and the
(Hillier
resulting
Dec1.,
order,
1]
Which
XX.)
deal
That
only
is obvious
with a page
from the face
limitation
0f the
and d0
ex
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mention anything about the Motion’s timeliness. (Id) Defendant never disclosed t0 Judge
McGuire that it had been served With the Complaint approximately nine months prior t0 the ex
parte hearing 0r that the Motion was already seven months late at that time. (ld.) In fact, there
wasn’t a single discussion about the timing 0f the Motion at the hearing because Defendant never
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addressed the issue. (Id) Now, Defendant claims that in allowing a page extension, Judge
McGuire also granted permission t0 file an untimely motion, despite the fact that Defendant never
10 disclosed its untimely nature t0 her. That isintellectually dishonest and misleading.1
11 Second, Defendant claims that its multiple motions t0 transfer venue in this matter
12 prevented an earlier anti-SLAPP motion. Without any citation t0 applicable law, Defendant
13 claims that it “felt itwas necessary to effect a transfer” prior to moving for relief under the anti-
14 SLAPP statute. (Mot. at 1622-23.). The California Court of Appeal expressly rejected this exact
15 argument by the defendants in Morin v. Rosenthal (2004) 122 Ca1.App.4th 673, 68] (as modified
16 0n denial of reh’g). In affirming the trial court’s denial of a late-filed anti-SLAPP motion, the
17 Morin court held:
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[t]he 60 day period in which a defendant may file a SLAPP motion
as a matter of right appears to be intended to permit the defendant to
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test the foundation of the plaintiff’s action before having to devote
its time, energy and resources t0 combating a meritless
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lawsuit. ...instead of attempting to promptly expose and dismiss
Morin’s suit as a SLAPP, defendants chose t0 devote their time,
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energy and resources t0 moving the case from state court to federal
22 court and, after remand from the federal court, moving the case from
one branch of the superior court to another and then from one judge
23 t0 another in the chosen branch. This procedural maneuvering
consumed seven months 0r nearly one-third of the court’s overall
24 time goal for disposing 0f a civil case.
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(Ibid. [quotations omitted].) The Morin court rejected the defendants” attempt to analogize their
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delay t0 a change of venue, as Defendant sought here: “But even if the analogy were close it
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The ex parte hearing in front of Judge McGuire was held August 10, 2021; the Motion was filed September 17,
28 2021 7 38 days later.Defendant does not care to explain why there was a 38-day delay (0n top of the several month
delay before that) between the ex parte application for a page extension and the filing of the Motion.
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would not benefit defendants in this case. As the trial court correctly pointed out, nothing
prevented the defendants from timely filing their SLAPP motions even if the pendency 0f the
transfer motion would have stayed the hearing on the motions.” (Ibid. [emphasis in 0riginal].)
The court also rejected the defendants’ claim that if their motion was held in abeyance, itwould
be denied for failing t0 be heard Within the 30-day limit after service 0n the plaintiff. (1bid.) The
court reasoned that in such a scenario, “the defendant can reschedule the hearing under section
425. 16, subdivision (t) on the ground ‘the docket conditions 0fthe court require a later hearing’i
the ‘docket condition’ being the pendency 0f a decision on the transfer motion.” (Id. at 682.)
Other than its “feeling,” Defendant provides no legal justification for filing itsanti-SLAPP
10 motion 10 months after service 0f the complaint. Defendant does not cite any exception 0r
11 justification for a deviation from Morin. Despite the fact that Marin is directly 0n point, Defendant
12 did not even cite the case for this coufi. There is no reason that Defendant’s motion could not
13 have been filed before its original motion to transfer venue 0r concurrently therewith, which
14 would have been timely under section 425.16, subdivision (f). Further, there is n0 reason that
15 Defendant’s motion could not have been filed between the time its first motion t0 transfer was
16 denied (January l9, 2021) and itssecond motion to transfer was filed (March 1, 2021)? Instead
17 of filing the anti-SLAPP motion, Defendant chose to devote its time, energy, and resources to
18 transferring venue — the exact action the Morin court disapproved. The transfer motions, therefore
19 do not act as an excuse nor a justification for Defendant’s actions in bringing a motion 8 months
20 late.
21 Third, Defendant claims that it strategically sought to transfer the case prior to filing the
22 Motion. (Mot, 16:22-23.) Defendant makes it seem as if italways intended t0 file the Motion,
23 but deemed it necessary to transfer the case first. Ignoring, for a moment, that such a strategy
24 runs afoul 0f Morin, the claim just isn’t true. In March 2021, Defendant submitted a CMC
25 statement to the Los Angeles court identifying motions itintended to file in this action. (Def.
26 CMC Statement filed March ll, 202 1 .)In the Statement, Defendant did not assert that it intended
27 t0 file an anti-SLAPP motion. (Id) Juxtapose that statement with the one Defendant recently
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Except the motion would have been untimely, even back then.
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submitted in relation to the CMC in this matter set for September 30, 2021; in the new statement,
Defendant asserts that itintended t0 file an anti-SLAPP Motion. (Def. CMC Statement filed
September 15, 2021.) Indeed, the Motion was filed two days later. Comparison of the two
Statements reveals that Defendant didn’t actually make a strategic decision to refrain from filing
Motion early in the litigation; it never intended t0 do so. This is Clear evidence 0f abuse.
Fourth and finally, Defendant asserts: “The case is still at a very early stage. N0
depositions have been scheduled or taken. .” The argument incredibly hard
. (Mot, 16:24-25.) is
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t0 stomach considering the Defendant currently has 0n file with this court motions t0 quash
multiple subpoenas Plaintiff served 0n third-party witnessesiindividuals Defendant itself
10 identified (in one of its motions t0 transfer venue) as having information pertinent t0 this matter.
11 (Def. Mot. t0 Quash 01' Modify Subpoena, filed September 10, 2021.) Moreover, Defendant has
12 served multiple records subpoenas in this matterisome 0f which were sent t0 a third-party
13 organization seeking information regarding one of the claims Defendant now seeks t0 strike
14 (defamation). (Hillier Dec]. at XX.) Again, Defendant’s argument misrepresents the truth.
15 In sum, none 0f Defendant’s arguments legally justify the late filing of Defendant’s
16 Motion. More to the point, none of Defendant’s factual assertions regarding the reasons for the
17 late filing are true. Defendant should not be rewarded for failing t0 timely the Motion and then
18 misrepresenting the facts and law surrounding that failure.
19 B. Defendant Was Required t0 Seek Leave of Court to File an Untimely Motion, but
20 Failed to D0 So.
21 No matter how it chooses t0 construe its ex parte application for additional pages,
22 Defendant did not seek leave from this Court t0 file the Motion late. Perhaps realizing the error
23 in this approach, Defendant cites to Chitsazzadeh v. Kramer & Kaslow (201 l) 199 Cal.App.4th
24 676, 684 (“Chitsazzadeh”) for the proposition that a Court may consider untimely anti-SLAPP
25 motion, “even if the moving Defendant fails torequest leave of court to file an untimely motion.”
26 (Mot, 17:27-28.) T0 the extent Chitsazzadeh can be read as such, the holding ispure dicta as the
27 appellate court affirmed the trial court’s denial of the defendant’s anti-SLAPP motion on the
28 grounds that itwas untimely. But more t0 the point, in the Motion, Defendant failed to disclose
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t0 this Court that Chittsazzadeh was expressly disapproved by a later decision out of the same
appellate district — Hewlett-Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th 1174.
In Hewlett-Packard, the court questioned Whether 0r not the holding in Chitsazzadeh
“conforms to either the letter 0r the spirit of the [anti-SLAPP] statute. .” at 1187.) Based on
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a plain reading of the statute, the court concluded that a “defendant is only entitled t0 ‘file[ ]’ [an
anti-SLAPP] motion Within 6O days 0f service; thereafter filing may be allowed, 0r not, in the
trial court's discretion.” (Id. at 1186.) The court went 0n t0 list the significant California precedent
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holding that section 425.16, subdivision (f),“empowers a trial court t0 require advance leave
before the defendant ispermitted to file such a motionz”
10 Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 775, 83 Cal‘Rptr.3d
95 [“A party may not file an anti-SLAPP motion more than 60 days after the filing
11 0f the complaint, unless the trial court affirmatively exercises its discretion t0 allow
a late filing. ”]; Olsen v Harbison (2005) 134 Cal. App. 4th 278, 286, 35 Cal Rptr. 3d
12 909 [“The statute expressly provides that a late anti- SLAPP motion shall not be
filed unless the court affirmatively exercises discretion to permit it to be filed. ”];
13 Kunyyz v Sandler (2007) 146 Cal App. 4th 1540, 1543 53 Cal. Rptr. 3d 779 [citing
failure t0 seek leave to file an untimely motion as one of several defects]; South
14 Sutter LLCv. LJSutter Partners L. P. (2011) 193 Cal. App 4th 634, 653, 654, 123
Cal. Rptr. 3d 301 (South Sutter) [implying that failure to seek leave could be fatal,
15 but finding motion there timely].
16 (Id. (emphasis added).)
17 The Hewlett-Packard court cautioned trialcourts against hearing then denying untimely
18 anti-SLAPP motions (as opposed t0 merely denying a request t0 hear them) because 0f the delays
19 attendant with such a course of action. In that case, the trial court “heard the [untimely anti-
20 SLAPP] motion, and then ‘denied’ it on grounds of untimeliness,” Which “produced the
21 regrettable consequence 0f granting Oracle [a] ‘free time-out’ [while the anti-SLAPP motion was
22 appealed]...” (Id. at 1187 [emphasis in original].) The appellate court opined that a denial of
23 leave to file an untimely motion was preferable, as such an order would not be immediately
24 appealable. (Id)
25 Such should be the outcome here. As the significant precedent, above, suggests,
26 Defendant was required to seek leave of court to file an untimely anti-SLAPP motion. Defendant
27 failed t0 do so, instead opting t0 misconstrue the grant 0f an extended page limit as permission to
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file an untimely motion. Such tactics cannot be rewarded. Defendant’s Motion should be struck
0n the grounds that Defendant failed to seek leave t0 file an untimely motion alone.
Defendant also chose t0 use this time t0 seek discovery from Plaintiff regarding the same
causes 0f action it now seeks to strike. On January 21, 2021, Defendant served Form
Intenogatories i General, Form Interrogatories i Employment, and Requests for Admission.
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Following the resolution of its second motion t0 transfer, Defendant continued to propound
discovery requests 0n Plaintiffimany 0f which request information relating t0 the causes of
10 action that Defendant seeks t0 strike in itsanti-SLAPP motion. Most recently, Defendant sought
11 t0 enforce its discovery requests by filing four separate requests for Pretrial Discovery
12 Conferences. Although the Court denied these requests because of Defendant’s failure to meet
13 and confer, such conduct runs contrary to the purposes of the anti-SLAPP statute, which is
14 intended in part to avoid costly litigation, including discovery. Defendant cannot have it both
15 ways by seeking to strike Plaintiff's causes 0f action as SLAPP While also seeking to require
16 Plaintiff to provide discovery related to these causes of action. Defendant had the option to move
17 t0 strike these causes 0f action early and declined t0 d0 so, opting instead to seek transfer venue
18 and seek discovery regarding these causes of action. The Court cannot now letDefendant go back
19 in time t0 try a different path, especially one that will effectively stay the proceedings currently
20 taking place.
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22 V
23 CONCLUSION
24 In view of the foregoing facts and authorities, and the matters set forth in the Declaration
25 ofAndreW E. Hillier filed herewith, Plaintiffhereby submits that good cause exists for an ex parte
26 order striking Defendant’s Motion to Strike.
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28 Dated: September 30, 2021
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E-FILED H‘lher Law Superior Court of California . 600 W. Broadway, Sulte 700 County 0f Fresno San Diego, CA 92101 L Peterson, Deputy By: Telephone: (619) 500-7906 Facsimile: (619) 839-3895 andrew@ahillierlaw.com Attorney for Plaintiff, A. Sameh E1 Kharbawy SUPERIOR COURT OF THE STATE OF CALIFORNIA g COUNTY 0F FRESNO A. SAMEH EL KHARBAWY, Case No.: 21CECG02214 10 Plaintiff’ PLAINTIFF A. SAMEH EL KHARBAWY’S NOTICE 0F DEPOSIT 11 VS. 0F JURY FEES 12 13 BOARD 0F TRUSTEES 0F THE Assigned for all Purposes t0: CALIFORNIA STATE UNIVERSITY; DARRYL L. HAMM, an individual; Dept . 503 14 LYNNETTE ZELEZNY, Judge: H0“ Kimberly A" Gaab an individual; 15 JOSEPH l.CASTRO, an individual; SAUL JIMENELSANDOVAL, an individual; 16 XUANNING FU, an individual; 17 AND DOES 1 through 50, 18 Defendants. 19 20 21 22 23 24 25 26 27 28 PLAINTIFF A. SAMEH EL KHARBAWY’S NOTICE OF DEPOSIT OF JURY FEES _1 _ TO THE COURT, ALL PARTIES, AND THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that in the above-referenced case, the fee pursuant to Code 0f Civil Procedure section 631 (in the amount 0f $150) is tendered 0n behalf of Plaintiff A. Sameh E1 Kharbawy. Dated: September 30, 2021 L Respectfully Submitted, g 10 H' Andrew E. , 11 Attorney for Plaintiff, A. Samch El Kharbawy 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF A. SAMEH EL KHARBAWY’S NOTICE OF DEPOSIT OF JURY FEES _2 _ MEMORANDUM 0F POINTS AND AUTHORITIES I. INTRODUCTION This is an employment and civil rights action. Plaintiff Dr. A. Sameh E1 Kharbawy (“P1aintiff’) alleges that the named defendants systematically harassed and retaliated against him because 0f his well—documented opposition to and whistleblower disclosures of discrimination, corruption, fraud, and other illegal acts perpetrated by the California State University and its officials. Defendants’ retaliation resulted in a “temporary” suspension 0f Plaintiff’ s employment g that has lasted nearly four years. Since February 2018, Defendant has suspended Plaintifi’g employment 44 times, each suspension lasting 30 days i the maximum period allowed by policy 10 and contract. The “temporary” nature of the suspension does not provide Plaintiff substantive 11 appeal 0r due process rights t0 grieve the action. T0 justify this unlawful, retaliatory suspension 12 Defendants relied on demonstrably false pretexts and baseless accusations 0f benign Violations 0f 13 University policy, like failing t0 hold office hours and meeting With a class at the wrong time. 14 Plaintiff was forced t0 bring this action t0 court after Defendants repeatedly violated his rights. 15 On September 17, 2021 , Defendant Board of Trustees for the California State University 16 (“Defendant”) filed a motion to strike four causes of action in Plaintiff’s Complaint under 17 California’s anti-SLAPP statute (“the Motion”). The Motion was filed more than 10 months after 18 Defendant was served with the summons and complaint in this matter and more than 8 months 19 after the statutory time period for filing an anti-SLAPP motion expired. Despite being more than 20 260 days tardy in filing the Motion, Defendant did not even seek permission from this Court to 21 file a late motion. 22 Defendant’s Motion is substantively circumspect. For example, Defendant claims that 23 Plaintiffs cause of action for retaliation under California Labor Code § 1102.5 should be struck 24 under the anti-SLAPP statute because, they claim, the alleged retaliatory actions are protected 25 speech. Defendant identifies its own false allegations of wrongdoing against Plaintiff (which 26 Plaintiff alleges were pretext for a real, retaliatory motive) as “protected” under the anti-SLAPP 27 statute and under an official proceedings privilege. Defendant argues that since the allegations 28 are protected speech, they cannot be the basis for a retaliation cause 0f action. But Defendant PLAINTIFF A. SAMEH EL KHARBAWY’S NOTICE OF DEPOSIT OF JURY FEES .3. ignores the fact that the false and manufactured allegations of wrongdoing against Plaintiff are not the adverse employment action at issue here; it is Defendant’s ongoing, interminable suspension of Plaintiffs employment that is challenged in the retaliation action. Defendant’s 44 independent decisions t0 suspend Plaintiff s employment, creating a four-year professional limbo for Plaintiff, cannot constitute protected speech and cannot be protected under anti-SLAPP provisions. “[A] claim does not ‘arise from’ protected activity simply because itwas filed after, 0r because 0f, protected activity, 0r when protected activity merely provides evidentiary support g 0r context for the claim. Rather, the protected activity must ‘supply elements 0f the challenged claim.” (Rand Res, LLC v. City afCarson (2019) 6 Ca1.5th 610, 621 [quoting Park v. Board 0f 10 Trustees ofCalifornia State University (2017) 2 Cal.5th 1057, 1064].) 11 However, the Court need not reach a decision 0n the substance 0f the Motion, because 12 Defendant failed t0 timely file it.Pursuant to C.C.P. § 425.166), to be heard as a matter 0f right, 13 a Defendant must file an anti-SLAPP motion within 60 days of service of the Complaint. 14 Defendant missed that deadline in this case by three-quarters of a year. In the interim time, 15 Defendant has been litigating the matter, forcing Plaintiff to expend time and money on motions 16 and discovery. Now, nearly a year into the case, and nearly 9 months too late, Defendant moves 17 this Court for an order (under the anti-SLAPP statute) decreeing that this matter is worth neither 18 the time nor the expense that Defendant has already forced plaintiff t0 expend. It isan absurd 19 position, and one that significantly prejudices Plaintiff. The Court must strike the Motion as 20 untimely. 21 II. EX PARTE RELIEF IS WARRANTED UNDER THE CIRCUMSTANCES 22 As stated in the Declaration of Andrew E. Hillier, filed herewith, Plaintiff will suffer 23 irreparable harm if the relief requested herein is not granted. Defendant failed to timely file the 24 Motion and a hearing date 0n said motion is set for October 19, 2021. If ex parte relief is not 25 granted, Plaintiff will be forced t0 expend significant resources responding t0 an untimely, 26 unmeritorious motion. While it is possible t0 file a noticed motion to strike, Plaintiff cannot 27 obtain a noticed motion date prior to October 19, 2021, so the relief sought herein cannot be 28 granted 0n a regularly noticed motion. (Hillier Decl. at fl XX.) PLAINTIFF A. SAMEH EL KHARBAWY’S NOTICE OF DEPOSIT OF JURY FEES _4 _ III. COUNSEL HAS FULLY COMPLIED WITH CALIFORNIA RULES OF COURT IN NOTICING THIS EXPARTE APPLICATION As stated in the Declaration 0f Andrew E. Hillier, filed herewith, counsel has duly complied With the notice requirements of California Rules of Court, Rule 3.1204 by informing opposing counsel 0f where and when this application will be made and by inquiring as to Whether 0r not opposition is expected. (Hillier Decl. at fl XX.) Plaintiff s counsel provided the notice Via email t0 Defendant’s counsel at 9:48 a.m. the day prior t0 the ex part6 hearing. Defendant’s g counsel, Nathan Jackson, stated that Defendant would oppose this application. IV. THE COURT SHOULD EXERCISE ITS INHERENT AUTHORITY TO STRIKE 10 DEFENDANT’S UNTIMELY MOTION 11 California Code of Civil Procedure (C.CAP.) § 436 provides: “The court may, at any 12 time in its discretion, and upon terms itdeems proper: [fl] (b) Strike out all 0r any part 0f any 13 pleading not filed in conformity With the laws 0f this state, a court rule, 0r an order 0f the 14 court.” 15 A. The Motion Does not Conform with the Laws of this State as It Is Untimely 16 Pursuant t0 C.C.P. § 425.16gfl. 17 C.C.P. § 425.166) requires that any special motion to strike under California’s anti- 18 SLAPP statute be filed within 60 days of service 0fthe Complaint 0r, at the Court’s discretion, at 19 a later time only upon “terms itdeems proper.” Courts have recognized two purposes for the 60- 20 day limitation: 21 One is t0 require presentation and resolution of the anti-SLAPP claim at the outset of the litigation before the parties have undertaken the expenses of litigation that 22 begin to accrue after the pleading stage ofthe lawsuit. The other is t0 avoid tactical manipulation of the stays that attend anti-SLAPP proceedings. The “prejudice” to 23 the opponent pertinent to these purposes is that which attends having to suffer such expenses 0r be subjected to such a stay. 24 25 (Olsen v. Harbison (2005) 134 Cal.App.4th 278, 287.) 26 “Section 425.16 provides a means for the prompt and relatively inexpensive resolution 0f 27 lawsuits that threaten free speech. But italso ‘present[s] the possibility for abuse 0f the anti- 28 SLAPP statute.”’ (Newport Harbor at p. 655 [quoting Platypus Wear, Inc. v. Goldberg (2008) PLAINTIFF A. SAMEH EL KHARBAWY’S NOTICE OF DEPOSIT OF JURY FEES _ 5 _ 166 Ca1.App.4th 772, 783].) Given the provisions of section 425. 16 that stay all discovery and, if the anti-SLAPP motion isappealed, stay all trialcourt proceedings, there is an “ironic unintended consequence that anti-SLAPP procedures, enacted to curb abusive litigation, are also prone to abuse.” (Olsen v. Harbison (2005) 134 Ca1.App.4th 278, 283.) “[S]0me anti-SLAPP appeals will undoubtedly delay litigation even though the appeal isfrivolous 0r insubstantial. ...[S]uch a result may encourage defendants t0 ‘misuse the [anti-SLAPP] motions t0 delay meritorious litigation 0r for other purely strategic purposes.” (Varian Medical Systems, Inc. (2005) 35 Cal.4th 180, 195 g [quoting People ex rel.Lockyer v4 Brar (2004) 115 Ca1.App.4th 1315, 1318 (“You don’tjust get the right t0 go t0 the appellate court, you also get a free time-out in the trial court.”)].) 10 Accordingly, “[a]n anti-SLAPP motion is not a vehicle for a defendant t0 obtain a 11 dismissal 0f claims in the middle of litigation; it is a procedural device t0 prevent costly, 12 unmeritorious litigation at the initiation of the lawsuit.” (Newport Harbor, 4 Cal.5th at p. 645 13 [quoting San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Ca.App.4th 14 61 1, 625-626] (emphasis added).) “...[S]ection 425.16, subdivision (f), should be interpreted. ..to 15 prohibit belated motions that could have been brought earlier (subject t0 the trialcourt’s discretion 16 t0 permit a late motion). This interpretation maximizes the possibility the anti-SLAPP statute Will 17 fulfill itspurpose while reducing the potential for abuse.” (Newport Harbor, 4 Cal.5th at 645.) 18 A defendant’s failure to timely file an anti-SLAPP motion forces the parties to incur costs 19 that a timely-filed motion could have avoided, and as those costs increase, “the capacity of an 20 anti-SLAPP motion t0 satisfy the statutory purpose diminishes.” (Hewlett—Packard C0. v. Oracle 21 Corp. (2015) 239 Ca1.App.4th 1174, 1188.) Thus, “every case will come to a point beyond which 22 an anti-SLAPP motion simply cannot perform itsintended function. .. the trial court cannot abuse 23 its discretion by refusing to hear it.”(Ibid) 24 Here, Defendant filed the Motion well after 60-day timeframe. In fact, it isindisputable 25 that 330 days have passed since Defendant was served With the Complaint in this matter 0n 26 November 4, 2020. (Hillier Decl., 1]XX.) While Defendant admits that the Motion is untimely 27 (Mot. at 16: 17-18) Defendant provides littlein the way ofjustification for itsfailure to follow the 28 PLAINTIFF A. SAMEH EL KHARBAWY’S NOTICE OF DEPOSIT OF JURY FEES .6. relevant statutory timeframes. And, indeed, Defendant cannot demonstrate such justification because it has already acted in a manner antithetical t0 relief under the anti-SLAPP statute. Defendant litigated this matter for nearly a year prior to its filing 0f the Motion. In that time, Defendant filed multiple motions to transfer venue, propounded discoverv requests related t0 the causes 0f action in now seeks t0 strike, and applied for discovery conferences related t0 those same requests. (Hillier Decl. at fl XX.) All 0f these actions caused Plaintiff to expend time and expense in litigation and discovery. In other words, Defendant has forced g Plaintiff to expend effort, energy, and resources 0n a case itnow claim578 months lateliis not worthy of the expenditure 0f effort, energy, and resources. It istruly an absurd position. And the 10 above case law is clear: such actions constitute an abuse 0f the anti-SLAPP statute. 11 This case isbeyond this point where the purposes 0f the anti-SLAPP statute can be served, 12 and the Court iswell Within its discretion to refuse to hear Defendant’s untimely motion. Other 13 courts have properly refused t0 hear anti-SLAPP motions for delays much shorter than What we 14 have here. (See, e.g. Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 680-81 15 [motion proparly denied as untimely where ll3 days elapsed between service of complaint and 16 filing 0f motion]; Morin v. Rosenthal (2004) 122 Cal.App.4th 673, 681 (as modified on denial 0f 17 reh’g) [n0 abuse 0f discretion to deny as untimely motions filed 90 days after remand from federal 18 bankruptcy court]; Kunysz v.Sandler (2007) 146 Ca1.App.4th 1540, 1543 [no abuse of discretion 19 to deny, partly on timeliness grounds, motion for reconsideration filed some 10 months after 20 initial timely motion]; Olsen v. Harbison, supra, 134 Cal.App.4th at pp. 282, 283 [appeal 21 dismissed as frivolous where motion filed 278 days after service].) 22 B. None of Defendant’s Proffered Excuses Justify the Untimeliness of the Motion. 23 Defendant offers a series 0f meek excuses in an attempt to justify the late-filed Motion. 24 Defendant’s purported rationales are false, unsupported by law, or both. 25 First, incredibly, Defendant claims it received permission t0 file a late anti-SLAPP 26 motion through an ex parte application to extend the page limit of the Motion granted by Judge 27 McGuire (Who was assigned to this matter at the time). (Mot, 1718-10.) The claim is 28 disingenuous at best, and more akin to an affirmative attempt t0 mislead this court. Defendant PLAINTIFF A. SAMEH EL KHARBAWY’S NOTICE OF DEPOSIT OF JURY FEES .7. never asked Judge McGuire for permission to file a late anti-SLAPP motion, and Judge McGuire m parte granted such application permission. and the (Hillier resulting Dec1., order, 1] Which XX.) deal That only is obvious with a page from the face limitation 0f the and d0 ex not mention anything about the Motion’s timeliness. (Id) Defendant never disclosed t0 Judge McGuire that it had been served With the Complaint approximately nine months prior t0 the ex parte hearing 0r that the Motion was already seven months late at that time. (ld.) In fact, there wasn’t a single discussion about the timing 0f the Motion at the hearing because Defendant never g addressed the issue. (Id) Now, Defendant claims that in allowing a page extension, Judge McGuire also granted permission t0 file an untimely motion, despite the fact that Defendant never 10 disclosed its untimely nature t0 her. That isintellectually dishonest and misleading.1 11 Second, Defendant claims that its multiple motions t0 transfer venue in this matter 12 prevented an earlier anti-SLAPP motion. Without any citation t0 applicable law, Defendant 13 claims that it “felt itwas necessary to effect a transfer” prior to moving for relief under the anti- 14 SLAPP statute. (Mot. at 1622-23.). The California Court of Appeal expressly rejected this exact 15 argument by the defendants in Morin v. Rosenthal (2004) 122 Ca1.App.4th 673, 68] (as modified 16 0n denial of reh’g). In affirming the trial court’s denial of a late-filed anti-SLAPP motion, the 17 Morin court held: 18 [t]he 60 day period in which a defendant may file a SLAPP motion as a matter of right appears to be intended to permit the defendant to 19 test the foundation of the plaintiff’s action before having to devote its time, energy and resources t0 combating a meritless 20 lawsuit. ...instead of attempting to promptly expose and dismiss Morin’s suit as a SLAPP, defendants chose t0 devote their time, 21 energy and resources t0 moving the case from state court to federal 22 court and, after remand from the federal court, moving the case from one branch of the superior court to another and then from one judge 23 t0 another in the chosen branch. This procedural maneuvering consumed seven months 0r nearly one-third of the court’s overall 24 time goal for disposing 0f a civil case. 25 (Ibid. [quotations omitted].) The Morin court rejected the defendants” attempt to analogize their 26 delay t0 a change of venue, as Defendant sought here: “But even if the analogy were close it 27 1 The ex parte hearing in front of Judge McGuire was held August 10, 2021; the Motion was filed September 17, 28 2021 7 38 days later.Defendant does not care to explain why there was a 38-day delay (0n top of the several month delay before that) between the ex parte application for a page extension and the filing of the Motion. PLAINTIFF A. SAMEH EL KHARBAWY’S NOTICE OF DEPOSIT OF JURY FEES _ 8 _ would not benefit defendants in this case. As the trial court correctly pointed out, nothing prevented the defendants from timely filing their SLAPP motions even if the pendency 0f the transfer motion would have stayed the hearing on the motions.” (Ibid. [emphasis in 0riginal].) The court also rejected the defendants’ claim that if their motion was held in abeyance, itwould be denied for failing t0 be heard Within the 30-day limit after service 0n the plaintiff. (1bid.) The court reasoned that in such a scenario, “the defendant can reschedule the hearing under section 425. 16, subdivision (t) on the ground ‘the docket conditions 0fthe court require a later hearing’i the ‘docket condition’ being the pendency 0f a decision on the transfer motion.” (Id. at 682.) Other than its “feeling,” Defendant provides no legal justification for filing itsanti-SLAPP 10 motion 10 months after service 0f the complaint. Defendant does not cite any exception 0r 11 justification for a deviation from Morin. Despite the fact that Marin is directly 0n point, Defendant 12 did not even cite the case for this coufi. There is no reason that Defendant’s motion could not 13 have been filed before its original motion to transfer venue 0r concurrently therewith, which 14 would have been timely under section 425.16, subdivision (f). Further, there is n0 reason that 15 Defendant’s motion could not have been filed between the time its first motion t0 transfer was 16 denied (January l9, 2021) and itssecond motion to transfer was filed (March 1, 2021)? Instead 17 of filing the anti-SLAPP motion, Defendant chose to devote its time, energy, and resources to 18 transferring venue — the exact action the Morin court disapproved. The transfer motions, therefore 19 do not act as an excuse nor a justification for Defendant’s actions in bringing a motion 8 months 20 late. 21 Third, Defendant claims that it strategically sought to transfer the case prior to filing the 22 Motion. (Mot, 16:22-23.) Defendant makes it seem as if italways intended t0 file the Motion, 23 but deemed it necessary to transfer the case first. Ignoring, for a moment, that such a strategy 24 runs afoul 0f Morin, the claim just isn’t true. In March 2021, Defendant submitted a CMC 25 statement to the Los Angeles court identifying motions itintended to file in this action. (Def. 26 CMC Statement filed March ll, 202 1 .)In the Statement, Defendant did not assert that it intended 27 t0 file an anti-SLAPP motion. (Id) Juxtapose that statement with the one Defendant recently 28 2 Except the motion would have been untimely, even back then. PLAINTIFF A. SAMEH EL KHARBAWY’S NOTICE OF DEPOSIT OF JURY FEES _ 9 _ submitted in relation to the CMC in this matter set for September 30, 2021; in the new statement, Defendant asserts that itintended t0 file an anti-SLAPP Motion. (Def. CMC Statement filed September 15, 2021.) Indeed, the Motion was filed two days later. Comparison of the two Statements reveals that Defendant didn’t actually make a strategic decision to refrain from filing Motion early in the litigation; it never intended t0 do so. This is Clear evidence 0f abuse. Fourth and finally, Defendant asserts: “The case is still at a very early stage. N0 depositions have been scheduled or taken. .” The argument incredibly hard . (Mot, 16:24-25.) is g t0 stomach considering the Defendant currently has 0n file with this court motions t0 quash multiple subpoenas Plaintiff served 0n third-party witnessesiindividuals Defendant itself 10 identified (in one of its motions t0 transfer venue) as having information pertinent t0 this matter. 11 (Def. Mot. t0 Quash 01' Modify Subpoena, filed September 10, 2021.) Moreover, Defendant has 12 served multiple records subpoenas in this matterisome 0f which were sent t0 a third-party 13 organization seeking information regarding one of the claims Defendant now seeks t0 strike 14 (defamation). (Hillier Dec]. at XX.) Again, Defendant’s argument misrepresents the truth. 15 In sum, none 0f Defendant’s arguments legally justify the late filing of Defendant’s 16 Motion. More to the point, none of Defendant’s factual assertions regarding the reasons for the 17 late filing are true. Defendant should not be rewarded for failing t0 timely the Motion and then 18 misrepresenting the facts and law surrounding that failure. 19 B. Defendant Was Required t0 Seek Leave of Court to File an Untimely Motion, but 20 Failed to D0 So. 21 No matter how it chooses t0 construe its ex parte application for additional pages, 22 Defendant did not seek leave from this Court t0 file the Motion late. Perhaps realizing the error 23 in this approach, Defendant cites to Chitsazzadeh v. Kramer & Kaslow (201 l) 199 Cal.App.4th 24 676, 684 (“Chitsazzadeh”) for the proposition that a Court may consider untimely anti-SLAPP 25 motion, “even if the moving Defendant fails torequest leave of court to file an untimely motion.” 26 (Mot, 17:27-28.) T0 the extent Chitsazzadeh can be read as such, the holding ispure dicta as the 27 appellate court affirmed the trial court’s denial of the defendant’s anti-SLAPP motion on the 28 grounds that itwas untimely. But more t0 the point, in the Motion, Defendant failed to disclose PLAINTIFF A. SAMEH EL KHARBAWY’S NOTICE OF DEPOSIT OF JURY FEES -10- t0 this Court that Chittsazzadeh was expressly disapproved by a later decision out of the same appellate district — Hewlett-Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th 1174. In Hewlett-Packard, the court questioned Whether 0r not the holding in Chitsazzadeh “conforms to either the letter 0r the spirit of the [anti-SLAPP] statute. .” at 1187.) Based on . (1d, a plain reading of the statute, the court concluded that a “defendant is only entitled t0 ‘file[ ]’ [an anti-SLAPP] motion Within 6O days 0f service; thereafter filing may be allowed, 0r not, in the trial court's discretion.” (Id. at 1186.) The court went 0n t0 list the significant California precedent g holding that section 425.16, subdivision (f),“empowers a trial court t0 require advance leave before the defendant ispermitted to file such a motionz” 10 Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 775, 83 Cal‘Rptr.3d 95 [“A party may not file an anti-SLAPP motion more than 60 days after the filing 11 0f the complaint, unless the trial court affirmatively exercises its discretion t0 allow a late filing. ”]; Olsen v Harbison (2005) 134 Cal. App. 4th 278, 286, 35 Cal Rptr. 3d 12 909 [“The statute expressly provides that a late anti- SLAPP motion shall not be filed unless the court affirmatively exercises discretion to permit it to be filed. ”]; 13 Kunyyz v Sandler (2007) 146 Cal App. 4th 1540, 1543 53 Cal. Rptr. 3d 779 [citing failure t0 seek leave to file an untimely motion as one of several defects]; South 14 Sutter LLCv. LJSutter Partners L. P. (2011) 193 Cal. App 4th 634, 653, 654, 123 Cal. Rptr. 3d 301 (South Sutter) [implying that failure to seek leave could be fatal, 15 but finding motion there timely]. 16 (Id. (emphasis added).) 17 The Hewlett-Packard court cautioned trialcourts against hearing then denying untimely 18 anti-SLAPP motions (as opposed t0 merely denying a request t0 hear them) because 0f the delays 19 attendant with such a course of action. In that case, the trial court “heard the [untimely anti- 20 SLAPP] motion, and then ‘denied’ it on grounds of untimeliness,” Which “produced the 21 regrettable consequence 0f granting Oracle [a] ‘free time-out’ [while the anti-SLAPP motion was 22 appealed]...” (Id. at 1187 [emphasis in original].) The appellate court opined that a denial of 23 leave to file an untimely motion was preferable, as such an order would not be immediately 24 appealable. (Id) 25 Such should be the outcome here. As the significant precedent, above, suggests, 26 Defendant was required to seek leave of court to file an untimely anti-SLAPP motion. Defendant 27 failed t0 do so, instead opting t0 misconstrue the grant 0f an extended page limit as permission to 28 PLAINTIFF A. SAMEH EL KHARBAWY’S NOTICE OF DEPOSIT OF JURY FEES _ 11 _ file an untimely motion. Such tactics cannot be rewarded. Defendant’s Motion should be struck 0n the grounds that Defendant failed to seek leave t0 file an untimely motion alone. Defendant also chose t0 use this time t0 seek discovery from Plaintiff regarding the same causes 0f action it now seeks to strike. On January 21, 2021, Defendant served Form Intenogatories i General, Form Interrogatories i Employment, and Requests for Admission. g Following the resolution of its second motion t0 transfer, Defendant continued to propound discovery requests 0n Plaintiffimany 0f which request information relating t0 the causes of 10 action that Defendant seeks t0 strike in itsanti-SLAPP motion. Most recently, Defendant sought 11 t0 enforce its discovery requests by filing four separate requests for Pretrial Discovery 12 Conferences. Although the Court denied these requests because of Defendant’s failure to meet 13 and confer, such conduct runs contrary to the purposes of the anti-SLAPP statute, which is 14 intended in part to avoid costly litigation, including discovery. Defendant cannot have it both 15 ways by seeking to strike Plaintiff's causes 0f action as SLAPP While also seeking to require 16 Plaintiff to provide discovery related to these causes of action. Defendant had the option to move 17 t0 strike these causes 0f action early and declined t0 d0 so, opting instead to seek transfer venue 18 and seek discovery regarding these causes of action. The Court cannot now letDefendant go back 19 in time t0 try a different path, especially one that will effectively stay the proceedings currently 20 taking place. 21 22 V 23 CONCLUSION 24 In view of the foregoing facts and authorities, and the matters set forth in the Declaration 25 ofAndreW E. Hillier filed herewith, Plaintiffhereby submits that good cause exists for an ex parte 26 order striking Defendant’s Motion to Strike. 27 28 Dated: September 30, 2021 PLAINTIFF A. SAMEH EL KHARBAWY’S NOTICE OF DEPOSIT OF JURY FEES _ 12 _ Andrew E. Hillier g 10 ll 12 l3 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 PLAINTIFF A. SAMEH EL KHARBAWY’S NOTICE OF DEPOSIT OF JURY FEES -13-