Motion for Judgment on the Pleadings in A. Sameh El Kharbawy vs. Board of Trustees of California State of University| Trellis.Law

On October 23, 2020 a Motion-Secondary was filed involving a dispute between Kharbawy, A. Sameh El, and Board Of Trustees Of California State Of University, Castro, Joseph I., Fu, Xuanning, Hamm, Daryl L., Jimenez-Sandoval, Saul, Zelenzy, Lynnette, for 15 Unlimited - Other Employment in the District Court of Fresno County.

Preview
Andrew Hillier (State Bar N0. 295779)
Hillier Law
600 W. Broadway, Suite 700
San Diego, CA 92101
Telephone: (619) 500—7906 E-FILED
Facsimile: (619) 839-3895 10/5/2021 2154 PM . .

Superior Court of California
an drew@ahillierlaw.com
County of Fresno
B y :S. G arc'Ia ,De pu y
t
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’
MEMORANDUM 0F POINTS AND
AUTHORITIES IN SUPPORT 0F
11
VS.
PLAINTIFF’S MOTION To LIFT STAY
0F DISCOVERY PURSUANT T0 C.C.P. §
12 425.16(g)
BOARD 0F TRUSTEES 0F THE
13
CALIFORNIA STATE UNIVERSITY; D 6P t~= 503

14 DARRYL L. HAMM, an individual; Judge: Hm Klmbeﬂy A-
.

Gaab
LYNNETTE ZELEZNY, an individual;
Hearing Date: April 21, 2022
15 JOSEPH l.CASTRO, an individual;
Hearing Time: 3:30 p.m.
SAUL JIMENELSANDOVAL, an individual;
16
XUANNING FU, an individual;
17
AND DOES 1 through 50,

18 Defendants.

PLAINTIFF’S MOTION TO LIFT STAY OF DISCOVERY
_1 _
TABLE OF CONTENTS
PAGE
I. INTRODUCTION ....................................................................... 1

II. STATEMENT OF FACTS ............................................................. 2

lll. ARGUMENT
A. The Anti-SLAPP Discovery Stay Must be Lifted Where There Is Good
Cause ................................................................................. 5

B. Plaintiff Requests Speciﬁed and Targeted Information Through

g
Discovery t0 Respond to Arguments Made by Defendant in the Anti-

SLAPP Motion ..................................................................... 6

10 1. Defendant’s Arguments Regarding the Governmental Tort

Claims Act Require Discovery .............................................. 6
11

2. Defendant’s Argument Regarding an Administrative Proceedings
12
Privilege Requires Discovery ................................................ 8
13
3. Defeat Defendant’s Argument Regarding a “Legitimate Business Reason”
14
Requires Discovery ............................................................. 9
15
C. The Information Sought through the Identiﬁed Discovery ls in the Sole
16
Possession of Defendant .......................................................... 12

17
D. The Information Sought Through the Identiﬁed Discovery Cannot Be
18 Secured Through Informal Discovery ........................................... 12

19 IV. CONCLUSION ............................................................................ 13

20
TABLE OF AUTHORITIES
21
CASES PAGE
22
Ruiz v. Harbor View Community Ass'n
23 (2005) 134 Cal.App.4th 1456 ...................................................................... 5

24
Balla v. Hall
(2021) 59 Ca1.App.5th 652 ......................................................................... 5
25
Britts v.Superior Court
26 (2006) 145 Ca1.App.4th 1112 ...................................................................... 5

27 Carter v. Chicago State University
(7th Cir. 2015) 778 F.3d 651 ......................................................................... 11-12
28

PLAINTIFF’S MOTION TO LIFT STAY OF DISCOVERY
-ji-
Lafayette Morehouse, Inc. v, Chronicle Publishing C0,
(1995) 37 Cal. App. 4th 855 ........................................................................ 5

Miller v. Fairchild Industries, Inc.

(9th Cir. 1989) 885 F.2d 498 ..................................................................... 10

Moore v. Regents 0f University ofCalz'fornia
(2016) 248 Cal.App.4th 216 ...................................................................... 10

Phillips v. Desert Hospital Dist.
(1986) (1989) 49 Cal.3d 699 ..................................................................... 8

Patten v. GrantJoint Union High School Dist.

g
(2005) 134 Cal.App.4th 1378 ..................................................................... 10

Reeves v. Sanderson Plumbing Prods, Inc.

(2000) 530 U.S. 133 ................................................................................... 10
10

Schroeder v. Irvine City Council
11
(2002) 97 Ca1.App.4th 174 ........................................................................... 12
12
The Garment Workers Center v. Superior Court
13 (2004) 117 Cal.App.4th 1156 ........................................................................12, 13

14
Village ofArlington Heights v.Metropolitan Housing Development Corp.
(I 977) 429 U.S. 252 ................................................................................... 10
15
Yahnke v.Kane Cry,
16 (7th Cir. 2016) 823 F.3d 1066 ....................................................................... 11

18 STATE STATUTES
19 Cal. C. Civ. Prod. § 425.16 ........................................................................... passim

20
Cal. GOV. C. § 945.6 .................................................................................. 6

Cal. GOV. C. § 911.3 ................................................................................... 7,8
21

Cal. Lab. C. § 1102.5 .................................................................................. 9
22

PLAINTIFF’S MOTION TO LIFT STAY OF DISCOVERY
.m—
MEMORANDUM 0F POINTS AND AUTHORITIES
I. INTRODUCTION
In its Special Motion to Strike Pursuant to California’s anti-SLAPP Statute (“the Motion”)

Defendant Board of Trustees for the California State University (“Defendant” 0r “University”)

raises several arguments that require discovery in order for Plaintiffto fully prepare an opposition.

In its attempt t0 strike several of Plaintiffs causes of action, Defendant relies 0n afﬁrmative and

factual defenses in arguing that Plaintiff will not be successful on the merits 0f his claims (under

g
“Prong Two” 0f the anti—SLAPP analysis). These arguments require that Plaintiff obtain

information currently in Defendant’s possession in order t0 provide a factual retort. For example,

10 Defendant asserts that the Government Tort Claims Act bars cenain ofPlaintiff s causes of action,

11 but this defense requires a factual determination of whether, when, and how Defendant notiﬁed

12 Plaintiff that itwas rejecting Plaintiff s claims. There is a bona ﬁde dispute over whether 01'not

13 Plaintiff received those notices, and as such, limited, targeted discovery is warranted to allow

14 Plaintiff t0 oppose Defendant’s argument. As another example, Defendant contends that each 0f

15 its defamatory statements occurred within the context of an ofﬁcial proceeding, but this too

16 requires a factual determination as to whether that proceeding ended prior to the time Defendant

17 made the alleged defamatory statements, which, given the facts currently available to Plaintiff,

18 seems to be the case‘ Finally, Defendant asserts that its discipline of Plaintiff was supported by a

19 legitimate business purpose, and not the retaliatory motive alleged by Plaintiff; but this defense,

20 like the others, turns 0n a factual determination with information in the Defendant’s sole control.

21 The only way for Plaintiffto access the information necessary for t0 make a complete and

22 full opposition to Defendant’s anti-SLAPP is through formal discovery, such as requests for

23 production and depositions. Without this infonnation, the Court will be unable to properly

24 evaluate Defendant’s anti-SLAPP motion because the record will be incomplete. This context

25 provides good cause under California Code of Civil Procedure section 425.16, subdivision (g) for

26 the Court to liftthe stay on discovery and permit Plaintiff to conduct the discovery speciﬁed in

27 this motion.

28 ///

PLAINTIFF’S MOTION TO LIFT STAY OF DISCOVERY
_1
_
II. STATEMENT OF FACTS
This case is a textbook example 0f whistleblower retaliation. On no less than ﬁve

occasions, Dr. E1 Kharbawy submitted written complaints—with supporting documents and

identiﬁcation of witnessesito the University’s administrative and human resources departments

Speciﬁcally, Dr. E1 Kharbawy reported unlawful behavior, include: (1) University ofﬁcials failed

t0 conduct a proper faculty search to ﬁll an open professorship When they discriminated against

applicants 0n the basis 0f the gender and/or age; (2) University ofﬁcials failed t0 conduct a legal

faculty search when they cancelled the search because the ﬁnal candidates were ofMiddle Eastern

descent; (3) the University allowed a culture 0f endemic racism and discrimination targeting

10 individuals ofMiddle Eastern descent 0n the CSU Fresno campus; (4) University ofﬁcials harassed
11 Dr. E1 Kharbawy; and (5) University ofﬁcials engaged in fraudulent behavior t0 obtain

12 accreditation for CSU Fresno’s Interior Design program. Each of Dr. E1 Kharbawy’s repons was

13 detailed and speciﬁc, often dozens ofpages in length and accompanied by voluminous supporting

14 documents. He variously submitted those reports to his department chair, the president and provost

15 of CSU Fresno, the CSU Fresno’s Human Resources Department, and the University’s Ofﬁce of

16 the Chancellor. By reporting, he hoped the University would not only address and remedy the

17 speciﬁc wrongs, but also that itwould also change the professional culture at CSU Fresno, which
18 seemingly tolerated and often encouraged illegal behavior. (E1 Kharbawy Decl., 1]5.)

19 Dr. E1 Kharbawy exhausted every internal process to seek redress for the University’s

20 inappropriate, illegal behavior. And When that was unsuccessful, he sought to “blow the whistle.’

21 On January 30, 2018, Dr. E1 Kharbawy informed the Chancellor’s Ofﬁce and the University’s

22 Human Resources Department that he intended t0 forward his whistleblower disclosures t0

23 external authorities (e.g., the State Auditor’s ofﬁce). (El Kharbawy Decl., 116.) Six days later, 0n

24 February 5, 2018, the University “temporarily” suspended Dr. E1 Kharbawy from his position as a

25 Professor in the Interior Design Department at CSU Fresno. (Id) In other words, six days after Dr

26 E1 Kharbawy notiﬁed the University that he was going to pursue whistleblower complaints based

27 on the University’s discriminatory, retaliatory, and illegal behaviors, the University suspended

PLAINTIFF’S MOTION TO LIFT STAY OF DISCOVERY
_2 _
him. He has been repeatedly and continuously suspended for nearly four years. He is

currently still0n suspension. (E1 Kharbawy Decl., W 8-9.)

Since Dr. E1 Kharbawy is a “faculty unit employee,” subject to and protected by the

Collective Bargaining Agreement between the California Faculty Association and the California

State University (“the CBA”), the University could not take disciplinary action against him without

providing proper notice, hearings, and an opportunity for appeal. The University, however,

sidestepped those administrative requirements by invoking Article 17 0f the CBA i a provision

g
allowing a “temporary suspension” 0f a faculty member for n0 more than 30 days in emergent

circumstances. (E1 Kharbawy Dec1., 11 7.) Without justiﬁcation, the University imposed such a

10 suspension 0n Dr. El Kharbawy and they have re-issued that 30-day suspension 43 more times

11 (Id. at ﬂ 8.) In other words, the University has made 44 decisions to suspend Dr. E1 Kharbawy’s

12 employment.

13 The alleged justiﬁcation for these decisions is paltry: a series 0f 15 vague, minor, and

14 baseless accusations concerning, inter alia, teaching practices, preparation ofcourse materials, and

15 availability during ofﬁce hours. None of the allegations, even if true, could substantiate an

16 emergent Article 17 suspension, yet Defendant levied the suspension anyway.

17 Because Article 17 contemplates an extraordinary measure, it isextremely limited in scope

18 Article 17.1 proscribes the suspension of faculty unit employees unless the University is in

19 possession 0f “strong and compelling evidence...related to (a) the safety of persons or property,

20 (b) the disruption 0f programs and/or operations, or (c) investigation for formal notice of

21 disciplinary action.” (Def. Request for Judicial Notice (“RJN”) related to the Motion, Ex.5 at p.58.

22 In executing each of the 44 suspensions, Defendant cited the reason stated in subsection (c), the

23 need for an investigation ofthe 15 allegations against Dr. El Kharbawy. (E1 Kharbawy Decl., 1]
8.

24 In fact, Defendant was speciﬁc in its suspension notices about such investigation. In each of the

25 43 suspension renewal notices (which were sent to Dr. E1 Kharbawy and a number of his

26 colleagues at the University) Defendant claimed that “the University has engaged an outside

27 investigator, Bianca S. Samuel with Wilke, Fleury, Hoffelt, Gould, & Birney, t0 examine the

28 alleged concerns regarding your teaching and other professional responsibilities. She continues to

PLAINTIFF’S MOTION TO LIFT STAY OF DISCOVERY
.3.
examine the concerns raised in prior Notices of Temporary Suspension.” (Ibid; Ex. 1.) This

statement has been in every suspension notice sent by the University from March 2018 through

September 2021. (Ibid)

That assertion is false. While Ms. Samuel did conduct a ﬂawed and cursory investigation

into the allegations against Dr. E1 Kharbawy, that investigation concludediby Defendant’s own

admissioniin October 2019. (Mot, 10:21-22.) lt appears there has been n0 active investigation

since that time; indeed, Defendant does not cite any other proceeding in its anti-SLAPP motion.

g
(See generally ibidl) Which means there was n0 pending investigation into Dr. El Kharbawy’s

conducting no pending “administrative proceeding”ibetween November of 2019 and August

10 2021. During that time, however, Defendant sent out 22 notices t0 Dr. El Kharbawy and his

11 colleagues reiterating the same false allegations (“regarding [Dr. El Kharbawy’s] teaching and

12 other professional responsibilities”) and falsely reponing that an investigation into his conduct was

13 ongoing. Defendant’s purported justiﬁcation for the suspension (an active investigation) was

14 empirically false.

15 Its falsity is conﬁrmed by Ms. Samuel’s employment status. Each suspension notice from

16 March 201 8 t0 the present contains the claim that “Bianca S. Samuel with Wilke, Fleury, Hoffelt,

17 Gould, & Birney” is investigating the allegations 0f misconduct. But Plaintiff’s counsel is

18 informed that Ms. Samuel hasn’t even worked for the Wilke Fleury law ﬁrm in more than a year.

19 (Hillier Decl., 1]3.) According to state bar records and Ms. Samuel’s LinkedIn page, Ms. Samuel

20 left the ﬁrm t0 work for the California state government in or before September 2020. (Ibid.) Every

21 suspension notice sent since that date isfraudulent on its face.

22 Further, the suspension extension notices incorporate by reference the 15 allegations

23 Defendant made against Plaintiff. At the conclusion 0f the Wilke Fleury investigation, however,

24 Ms. Samuel determined four 0f the allegations to be partially or fully unfounded. (Jackson Decl.

25 ISO Mot, EX. 4 at 1-3.)

26 In sum, at the time Plaintiff ﬁled the Complaint in this matter, there hadn’t been an active

27 “administrative proceeding” related to an investigation into his conduct for a year. Defendant

28 knew that some 0f the allegations it made against Plaintiff were false (because its own

PLAINTIFF’S MOTION TO LIFT STAY OF DISCOVERY
_4 _
investigators had found them to be unfounded) and knew that there was no active investigation

into Plaintiff‘s conduct. Still, Defendant continued t0 send out veriﬁably false information about

Plaintiff, reasserting the false allegations regarding Plaintiffs professionalism and representing

that an investigation into his conduct was ongoing. That behavior has continued for nearly two

years.

lIl. ARGUMENT
A. The Anti-SLAPP Discovery Stay Must be Lifted Where There Is Good Cause.

g
Pursuant t0 Civ. Proc. Code section 425.16, subdivision (g), all discovery proceedings are

stayed upon the ﬁling of a notice 0f a special motion t0 strike brought under section 425.16,

10 subdivision (b). (Civ. Proc. Code § 425.16, subd. (g).) Despite this mandatory stay, however, a

11 plaintiff may seek an order allowing speciﬁed discovery. The anti-SLAPP statute speciﬁcally

12 provides that upon noticed motion and for good cause shown, the Court may order that speciﬁed

13 discovery be conducted notwithstanding the stay:

14 All discovery proceedings in the action shall be stayed upon the
ﬁling 0f a notice 0f motion made pursuant to this section. The stay
15 of discovery shall remain in effect until notice 0f entry 0f the order
ruling on the motion. The court, on noticed motion and for good
16 cause shown, may order that speciﬁed discovery be conducted
notwithstanding this subdivision.
17
(Civ. Proc. Code § 425.16, subd. (g). See also Ruiz v.Harbor View Community Ass’n (2005) 134
18
Ca1.App.4th 1456, 1475 [remanding case for trial court to consider discovery request].)
19
Discovery must be allowed where good cause exists. “In the anti-SLAPP context, ‘good
20
cause’ requires ‘a showing that the speciﬁed discovery isnecessary for the plaintiff t0 oppose the
21
[anti—SLAPP] motion and is tailored t0 that end.” (Balla v. Hall (2021) 59 Ca1.App.5th 652, 692
22
(quoting Britts v. Superior Court (2006) 145 Ca1.App.4th 1112, 1125.) “1f the plaintiff makes a
23
timely and proper showing in response to the motion to strike, that a defendant or Witness possesses
24
evidence needed by plaintiff to establish a prima facie case, the plaintiff must be given the
25
reasonable opportunity t0 obtain that evidence through discovery before the motion t0 strike is
26
adjudicated.” (Lafayette Morehouse, Inc. v. Chronicle Publishing C0. (1995) 37 Cal. App. 4th 855,
27

PLAINTIFF’S MOTION TO LIFT STAY OF DISCOVERY
.5.
868.) The trial court may also continue the hearing 0n the motion to strike so that any discovery it

authorizes may be completed. (1d,)

Here, Plaintifftimely brings this noticed motion prior to the hearing on the underlying anti-

SLAPP motion. Good cause exists t0 liftthe stay because Defendant’s arguments raise issues that

require targeted discovery t0 substantively oppose.

B. Plaintiff Requests Speciﬁed and Targeted Information Through Discovery t0

Respond t0 Arguments Made bV Defendant in the Anti-SLAPP Motion.

g
1. Defendant’s Arguments Regarding the Governmental Tort Claims Act

Require Discoveg.

10 As a legal defense t0 Plaintiffs defamation claim, Defendant asserts that Plaintiff failed to

11 properly follow thC provisions of the Governmental Tort Claim Act. (Mot, 25:5-24.) This is

12 Defendant’s Eighteenth Afﬁrmative Defense identiﬁed in its Answer to Plaintiff’s Complaint

13 (Def. Answer t0 the Complaint ﬁled March 1,2021, 521-4.) Defendant alleges Plaintiff sent two

14 governmental tort claim notices. (Mot, 26:5-6.) They allege the ﬁrst was submitted 0n June 5,

15 201 81 and the second was sent 0n June 28, 201 9. (Ibid) Defendant further alleges that Defendant

16 sent Plaintiffa rejection letter t0 the ﬁrst notice on October 25, 201 8. (Id. at26:12-14.) Defendant

17 alleges Plaintiff’s claims related to the ﬁrst tort claim notice are time—barred because he was

18 required t0 ﬁle suit against Defendant related t0 the ﬁrst notice claim by April 25, 20 19, but failed

19 to d0 so. (Id. at 26:1 1-21; 28:13—17.) However, California Government Code section 945.6 permits

20 any suit t0 bc brought against a public entity within two years from thc accrual of thc causc of

21 action "[i]f written notice [of thc entity’s response] isnot given in accordance with Section 913..."

22 As Defendant concedes that the parties entered into a relevant tolling agreement 0n July 24, 2019

23 (Mot, 27:2-3 .) the current suit would be timely if proper notice of the rejection was not provided

24 Plaintiff has good reason to believe the rejection letter related to his ﬁrst Governmental

25 Tort Claim Notice was never sent pursuant to the Government Code. Plaintiff never received the

26 Notice and was never informed by counsel that a notice was provided. (E1 Kharbawy Dec1., 1]
10.

27 The Proof of Service for the rejection letter (attached to RJN as Ex. 2) indicates that the letter was

28
1
This isthe incorrect date, but
itis What Defendant alleged in Motion.
its

PLAINTIFF’S MOTION TO LIFT STAY OF DISCOVERY
.6.
sent Via “mail” to “Altshuler Berzon LLP” at a particular PO Box in Fresno. There isno tracking

number provided? The PO Box indicated 0n the purported rejection letter does not belong t0

Altshuler Berzon; it belongs t0 Plaintiff. (El Kharbawy Dec1., 1113.) Defendant must have known

this, as Defendant had corresponded with Plaintiff many times prior. (1d. at 11 12.) According t0

the United States Postal Service, “[m]ail is delivered t0 residential 0r business addresses even if

the name on the mailpiece is different than the known residents. Mail addressed t0 a PO Box is

delivered only t0 recipients previously identiﬁed 0n PS Form 1093 ..
.” (Id. atﬂ 13.) Plaintiff never

g
identiﬁed Altshuler Berzon as a recipient at his PO Box. (1d. at ﬂ 14.) Moreover, Plaintiff did not

afﬁrmatively authorize the University t0 communicate a response t0 his Tort Claim Notice t0

10 Altshuler Berzon. (Id. at 1]15.)

11 Given this dispute regarding one of Defendant’s arguments in support ofProng Two of the

12 anti-SLAPP motion, there is good cause t0 allow targeted discovery related t0 the rejection 0f the

13 governmental tort claim notice. Speciﬁcally, Plaintiff requests the following discovery: (1

14 requests for production of documents related t0 Defendant’s transmission 0f the rejection letter;

15 (2) requests for production of documents related to Defendant’s receipt of any return 0f the

16 rejection letter; and (3) a deposition 0f the person most qualiﬁed from Defendant t0 discuss the

17 transmission ofthe rejection letter and/or receipt of any return of the rejection letter, Through this

18 discovery, Plaintiff expects t0 ﬁnd that Defendant never successfully transmitted the rejection

19 letter t0 Plaintiff, which would ultimately defeat the afﬁrmative defense raised by Defendant as a

20 reason for the Court t0 grant its anti—SLAPP motion.

21 Defendant also argues that Plaintiffs second governmental tort claim notice was untimely

22 because itwas not ﬁled within six months of the claims’ accrual. (Mot, 26:22-25; 28:18-29zl.

23 Defendant neglects t0 mention, however, that Government Code section 91 1.3(a) requires a

24 government entity to notify a claimant if it believes a Tort Claim notice isuntimely within 45 days

25 of the claim’ submission. Section 91 1.3 subdivision (b), states “[a]ny defense as t0 the time limit

26 for presenting a claim described in subdivision (a) is waived by failure t0 give the notice set forth

27 in subdivision (a) within 45 days after the claim is presented...” The purpose of these waiver

28 2
This isodd in thiscircumstance. Defendant usually sent notices t0 Plaintiff via electronic message, campus mail,
and/or trackable methods of mailing. (El Kharbawy Decl., ﬂ 16.)

PLAINTIFF’S MOTION TO LIFT STAY OF DISCOVERY
_ _
7
provisions is t0 ensure the government entity works diligently to investigate claims made and

provide an opportunity for plaintiffs to cure any perceived deﬁciencies. (See Phillips v. Desert

Hospital Dist‘ (1989) 49 Cal.3d 699, 705-6 [“If the public entity fails t0 require the claimant to

cure such defects, then it waives certain defenses which are otherwise available t0 challenge a

lawsuit based upon the claim. This possibility 0f waiver encourages public entities t0 investigate

claims promptly, and to make and notify claimants 0f their determinations, thus enabling the

claimants t0 perfect their claims. The overall result is an incentive t0 public entities t0 manage and

g
control the claims made against them.”])

Thus, if Defendant failed to notify Plaintiff 0f the purported untimeliness 0f his

10 governmental tort claim notice, itwaived the argument. In the Motion, Defendant does not allege

11 that it sent Plaintiff such a notice. (See generally the Motion.) Plaintiff never received such a

12 notiﬁcation. (El Kharbawy Decl., 11 17.) Given the dispute over a legal defense raised in the anti-

13 SLAPP motion, good cause exists to allow targeted discovery related t0 any notiﬁcation Defendant
14 sent to Plaintiffregarding the untimeliness of Plaintiff’s claims. Speciﬁcally, Plaintiff requests the

15 following discovery: requests for production 0f documents related t0 any notice Defendant

16 provided to Plaintiff regarding the untimeliness 0f governmental tort claim notices. Through this

17 discovery, Plaintiff expects to ﬁnd that Defendant did not send a notice under Cal. Gov. Code §

18 91 1 .3 and therefore Defendant’s anti-SLAPP arglment is invalidated.

19 2. Defendant’s Argument Regarding an Administrative Proceedings Privilege

20 Requires Discovegy.

21 Defendant argues that the alleged defamatory statements are “absolutely privileged” under

22 the “ofﬁcial proceedings privilege.” (Mot., 2724-15.) Defendant argues that the “ofﬁcial

23 proceeding” to which the defamatory statements relate is the Wilke Fleury investigation. (Id. at

24 27: 14-15.) As established above, there is signiﬁcant doubt here about Defendant’s assertions that

25 the Wilke Fleury investigation (or any other ofﬁcial proceeding) was ongoing at the time the

26 statements were made. Statements cannot be protected if they are related to an imaginary

27 administrative proceeding. Thus, there is good cause to allow targeted discovery related t0

28 ascertaining whether 0r not Defendant was actually investigating Plaintiff’s conduct at the times

PLAINTIFF’S MOTION TO LIFT STAY OF DISCOVERY
.8.
it alleged an investigation was ongoing. Speciﬁcally, Plaintiff requests the following discovery:

(1) special interrogatories and requests for production 0f documents related to the timing and

substance of investigatory procedures conducted by the University in relation t0 its allegations of

misconduct against Plaintiff; (2) a deposition 0f Defendant’s person most qualiﬁed to discuss the

timing and substance of those investigatory procedures. Through this discovery, Plaintiff expects

t0 ﬁnd that defamatory statements were not made in conjunction with any administrative

proceeding, because there was n0 administrative proceeding. This information would invalidate

g
the argument made by Defendant in its anti-SLAPP motion.

3. Defeat Defendant’s Argument Regarding a “Legitimate Business Reason’

10 Requires Discovery.

11 In the Motion, Defendant argues that Plaintiffs retaliation claims must fail because

12 Defendant had a “legitimate business reason” to suspend Plaintiff. Speciﬁcally, Defendant argues

13 that Plaintiff was suspended (and continues to be suspended) because the “Wilke Fluery report

14 sustained nearly all of Plaintiffs alleged misconduct.” (Mot, 3223-5.) This is a signiﬁcant

15 departure from what the University has claimed over the last four years. As described above,

16 Defendant consistently justiﬁed its years-long suspension 0f Plaintiff by stating that it was

17 “investigating” his conduct pursuant to Article 17 of the CBA. Now Defendant isarguing that the

18 suspensions (at least after October 2019, it seems) were justiﬁed because the investigation

19 completed and found the allegations t0 have been sustained. Either explanation isunlawful: If the

20 investigation was the reason for suspension, that reason ended With the investigation and Plaintiff

21 has been on suspension for two additional years without justiﬁcation. If the “sustained” nature of

22 the allegation isthe reason, Defendant completely deprived Plaintiffofhis due process rights under

23 the law and Article 19 of the CBA because he was not given defense and appeal rights guaranteed
24 to him. Regardless of this divergence, Plaintiff must respond to the argument actually in

25 Defendant’s Motion: that Plaintiffs suspension was justiﬁed because the allegations against him

26 were sustained. (Mot, 3223-5.)

27 “The elements of a section 1102.5(b) retaliation cause of action require that ( 1)the plaintiff

28 establish a prima facie case 0f retaliation, (2) the defendant provide a legitimate, nonretaliatory

PLAINTIFF’S MOTION TO LIFT STAY OF DISCOVERY
.9.
explanation for its acts, and (3) the plaintiff show this explanation ismerely a pretext for the

retaliation.” (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384.

Defendant argues that itsprovision 0f “legitimate business reason” for the suspension shifts the

burden t0 Plaintiff t0 show “intentional retaliation.” (Motion, 3 1 :26-32: 1 .)While there is n0 one

way t0 prove pretext, courts have identiﬁed several types of important types 0f evidence. Three

are relevant here.

First, comparison of an employer’s treatment of like employees isinstructive in assessing

g
the employer’s claim on a non-retaliatory motivation for an adverse action. Disparate treatment

0f employees who have participated in protected activity is strong evidence 0f a retaliatory motive.

10 (Miller v. Fairchild Industries, Inc. (9th Cir. 1989) 885 F.2d 498, 506 (ﬁnding that employee who

11 presented evidence 0f disparate treatment during layoffs shortly after participating in protected

12 activity presented signiﬁcant evidence ofpre-text.)

13 Second, a defendant's failure t0 follow its own procedures in executing an employment

14 action can provide signiﬁcant evidence 0f pretext. (Moore v.Regents of University 0f California

15 (2016) 248 Cal.App.4th 21 6, 239 (“Moore”); see also Village ofArlington Heights v.Metropolitan

16 Housing Development Corp. (1 977) 429 U.S. 252, 267 (departure from normal procedures “might

17 afford evidence that improper purposes [played] a role” in an employee's termination).) Moore is

18 particularly instructive as the case related to a university policy concerning retention of employees

19 that was based on a collective bargaining agreement between the University and faculty. (Moore,

20 248 Ca1.App.4th at 239—40.) The Court found the University’s deviation from its policy when

21 terminating the plaintiff provided the trier 0f fact with “evidence 0f pretext.” (Id. at239.)

22 Third, the falsity of an identiﬁed “legitimate business purpose” can be the basis for a

23 ﬁnding of pre-text. If the defendant’s proffered justiﬁcation for an adverse action is found to be

24 “unworthy of credence,” that “can be quite persuasive” evidence that the true reason isunlawful.

25 (Reeves v. Sanderson Plumbing Prods., Inc. (2000) 530 U.S. 133, 147; accord Yahnke v. Kane

26 Cly. (7th Cir. 2016) 823 F.3d 1066, 1071.) A purported justiﬁcation is “unworthy of credence” if

27 evidence tends to prove the employer‘s “proffered reasons are factually baseless. .. [and] not the

PLAINTIFF’S MOTION TO LIFT STAY OF DISCOVERY
-10.
actual motivation...for the employment action.” (Carter v. Chicago State University (7th Cir.

2015) 778 F.3d 651, 659.)

Given these authorities, Plaintiff seeks the following discovery to address Defendant’s

argument regarding a legitimate business purpose:

T0 address treatment of like employees: requests for production 0f documents and

interrogatories relating t0 Defendant’s suspension of other employees under Article 17

requests for production 0f documents and interrogatories relating to Defendant’s discipline

0f employees for alleged transgressions similar to those alleged against Plaintiff. Through

this discovery, Plaintiff expects t0 ﬁnd that other employees who did not engage in

10 protected activity were not subjected t0 years-long suspensions for allegations regarding

11 teaching practices 0r ofﬁce hours.

12 To address Defendant’s deviation from policies: requests for production of documents

13 relating to the substance and timing of the University’s investigation of Plaintiff

14 production of documents related to the University’s disciplinary policies and procedures,

15 and a PMQ deposition 0n the same topics. Plaintiff expects t0 ﬁ

Case Info

Judge

Gaab, Kimberly Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

October 05, 2021

Case Filing Date

October 23, 2020

County

Parties

Board of Trustees of California State of University Defendant
Castro, Joseph I. Defendant
Fu, Xuanning Defendant
Hamm, Daryl L. Defendant
Jimenez-Sandoval, Saul Defendant
Kharbawy, A. Sameh El Plaintiff
Zelenzy, Lynnette Defendant
Jesse Maddox Attorneys for Defendants
Nathan Jackson Attorneys for Defendants
Andrew Hillier Attorneys for Plaintiffs
Jason Taylor Attorney
Renee Smith Attorney
David Graulich Attorney
Kevin Schwin Attorney
Andrew Eitingon Attorney
Andrew Lo Attorney
Jesse Judnick Attorney
Maureen Spangler Attorney

For full print and download access, please subscribe at https://www.trellis.law/.

Motion-Secondary: A. Sameh El Kharbawy vs. Board of Trustees of California State of University

Preview

Related Topics

Case Info

Parties