1 THOMAS V. GIRARDI, ESQ. (SBN: 36603) GIRARDI * KEESE 2 1126 WILSHIRE BLVD. LOS ANGELES CALIFORNIA 90017 3 TEL: (213) 977-0211 FAX: (213) 481-1554 4 EBBY S. BAKHTIAR, ESQ. (SBN: 215032) Livingston • Bakhtiar 5 3435 WILSHIRE BLVD., SUITE 1669 LOS ANGELES, CALIFORNIA 90010 6 TEL: (213) 632-1550 FAX: (213) 632-3100 7 Attorneys for Plaintiff: ALF CLAUSEN 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF LOS ANGELES – CENTRAL DISTRICT 10 CASE No.: 19STCV27373 11 ALF CLAUSEN, an Individual, ) ) PLAINTIFF’S OPPOSITION TO 12 PLAINTIFF, ) DEFENDANTS’ ANTI-SLAPP ) SPECIAL MOTION TO STRIKE; 13 vs. ) MEMORANDUM OF POINTS & ) AUTHORITIES IN SUPPORT 14 TWENTIETH CENTURY FOX ) THEREOF; AND SUPPORTING TELEVISION, a Corporation headquartered in ) DECLARATIONS 15 Los Angeles County; TWENTIETH ) CENTURY FOX FILM, a Corporation ) [Filed Concurrently With Declarations 16 headquartered in Los Angeles County; ) of Ebby S. Bakhtiar, Scott Clausen, Alf TWENTY-FIRST CENTURY FOX, INC., a ) Clausen and Birdie Bush; Plaintiff’s 17 Corporation headquartered in Los Angeles ) Separate Volume of Exhibits; and County; FOX MUSIC, INC., a Corporation ) Plaintiff’s Evidentiary Objections.] 18 headquartered in Los Angeles County; ) GRACIE FILMS, a California Corporation; ) Date : August 5, 2020 19 THE WALT DISNEY CO., a Corporation ) Time : 10:00a.m. headquartered in Los Angeles County; and ) Dept. : 62 20 DOES 1 to 150, Inclusive, ) Trial Date : TBD ) 21 DEFENDANTS.Deadline) [THE HON. JUDGE MICHAEL L. STERN, PRESIDING] 22 23 24 TO THIS HONORABLE COURT, DEFENDANTS AND TO THEIR RESPECTIVE 25 ATTORNEYS OF RECORD: 26 Plaintiff ALF CLAUSEN hereby submits this Opposition to Defendants’ anti-SLAPP Special 27 Motion to Strike for Summary Judgement or in the Alternative Summary Adjudication. 28 Defendants’ Motion must be denied pursuant to the following grounds:
1 PLAINTIFF’S OPPOSITION TO DEFENDANTS’ ANTI-SLAPP MOTION 1 r) Plaintiff was a W-2 Employee, which gives rise to a rebuttable
2 presurnption that Defendants were his employer (Cal. Govt. Code $
J 12928 Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798,826);
4
5 2) Plaintiffs termination does not bear a sufficiently substantial
6 relationship to Defendants' exercise of any rights protected by the
7 anti-SLAPP statute (Wilsonv. C.N.N.,Inc. (2019) 7 Cal.5th 871,894);
8
9 3) Plaintiff s job neither bestowed upon him the ultimate authority to
10 determine Defendants' speech nor did it afford him the ability to
11 speak on Defendants' behalf as required by the anti-SLAPP statute ¿. (Wilson v. C.N.N., Inc. (2019)7 Cal.5th 871,896); and F 12 :E V 13 co 14 3) Plaintiff can easily demonstrate that his causes of action against a z 15 Defendants all have minimal merits. c U)F 16 U Z I7 Plaintiff s Opposition to Defendants' anti-SLAPP Motion is based upon the concurrently
J l8 filed Memorandum of Points & Authorities; the accompanying Declarations of Ebby S. Bakhtiar,
t9 Scott Clausen, Alf Clausen and Roberta "Birdie" Bush; Plaintiff s Separate Volume of Exhibits, 20 Plaintiff s Evidentiary Objections;Deadline and all other matters that may be judicially noticed as well as 21 upon the entirety of the recoLds, files and pleadings in this case and upon all such other and further
22 evidence as may be presented at the hearing for said the Motion.
23
24 Crn nn or er Kprsg ANo 25 KHTIAR 26 2l DATED 2ò By EBBY S. BAKHTIAR, 28 ATTORNEY FOR ALF CLAUS
2 PLAINTIFF'S OPPOSITION TO DBFENDANTS' ANTI-SLAPP MOTION Livingston • Bakhtiar 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 V CONCLUSION IV. I.LEGAL ARGUMENTS STATEMENTOF RELEVANT FACTS III. INTRODUCTION II. I. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP TO IN OPPOSITION AUTHORITIES & POINTS OF MEMORANDUM PLAINTIFF’S .PLAINTIFF BURDEN ATTHESECONDSTAGEOF B. DEFENDANTS HAVENOTMETTHEIR INITIAL A. .P 5. .T 4. .D 3. .D 2. .T 1. THE ANALYSIS IS LOW. ASLAPP–PROTECTEDACT WAS ACTIVITY. BURDEN OF SHOWING THATTHEADVERSE FOR THE D U S C M P C D D M P A W D E LAINTIFF AVE ANY LAINTIFF LAINTIFF HE STABLISHES THE HE LAIMS LAIMS ERIVATIVE OF HIS NTIMELY EFENDANTS ISCHARGE AND ISCRIMINATION EFENDANTS CCOMMODATE ISABILITY INIMAL INIMAL RONGFUL C T IMING OF ONTINUING . . S M M AME ’ ’ ’ . FEHA S S S
DeadlineD ERIT OF ERIT OF D R T T ’ ’ ISCRIMINATION ISCHARGE AND ERMINATION ERMINATION EMAINING
L L TABLE OF CONTENTS TABLE OF R P IES IES C EASONS , F LAINTIFF
C R V M LAIMS AILURE TO LAIM THAT FEHA ETALIATION A A IOLATION H H INIMAL BOUT THE BOUT THE IS IS A D . . C GE ISABILITY ’
AUSES OF C S E E i. M LAIMS AND T STABLISH THE STABLISH THE , D F A ERMINATION D R ERIT OF AILURE TO ISCRIMINATION M CCOMMODATE OCTRINE WILL , ETALIATION R R W IGHT EASON FOR EASON FOR RONGFUL A CTION ARE H B S IS E URVIVE ,
:...... 21 :...... 11 :...... 19 :...... 17 :...... 14 :...... 21 :...... 10 :...... 07 :...... 07 :...... 02 :...... 01
P AGE Livingston • Bakhtiar 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 (2001) 26 Cal.4th 798 Richards v.CH2MHill, Inc. (2017) 2Cal.5th1057 Park v.BoardofTrustees ofCaliforniaStateUniversity (2019) 39 Cal.App.5th 471 Jeffra v.Cal.StateLottery (2000) 24 Cal.4th317 Guz v.BechtelNational,Inc. (1992) 1Cal.4th1083 Gantt v.SentryIns. (1955) 44Cal.2d533 Freeman v.Sup.Ct (2019) 7Cal.5th133 FilmOn.com Inc.v.DoubleVerify 350 F.3d 1061,(9 Stegall v.CitadelBroadcastingCo. 217 F.3d 1234,(9 Ray v.Henderson 212 F.3d 493,(9 Passantino v.J&J ConsumerProd. 873 F.3d 739,(9 Flores v.CityofWestminster 320 F.3d 968,(9 Coszalter v.CityofSalem (1993) 509U.S.502 St. Mary’sHonorCenterv.Hicks (1989) 490U.S.228 Price Waterhouse v.Hopkins T T T PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP TO IN OPPOSITION AUTHORITIES & POINTS OF MEMORANDUM PLAINTIFF’S ITLE ITLE ITLE th th th Cir.2000) Cir.2017) Cir.2003) th th , . Cir.2003) Cir.2000) , N U , INTH C NITED DeadlineALIFORNIA C , , TABLE OF AUTHORITIES TABLE OF S IRCUIT TATES S C UPREME S UPREME OURT OF ii. C C OURT A OURT PPEAL D D ECISIONS D ECISIONS ECISION :...... 13 :...... 13 :...... 13 :...... 13 :...... 13 :...... 03, 19, 20 :...... 02 :...... 02, 10, 21 :...... 11, 13 :...... 11 :...... 14 :...... 09 :...... 15 :...... 18
P P P AGE AGE AGE Livingston • Bakhtiar 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 (2003) 109Cal.App.4th 779 Herr v.NestleU.S.A.,Inc (2018) 22Cal.App.5th1187 Hernandez v.RanchoSantiago Cmty.CollegeDist. (2009) 179Cal.App.4th1475 George v.Cal.Unemp.Ins.AppealsBd. (2006) 140 Cal.App.4th 34 Gelfo v.LockheedMartin (1992) 3Cal.App.4 Flait v.NorthAm.Watch Corp (1989) Fisher v.SanPedroPeninsulaHosp. (1971) 16Cal.App.3d686 Davis v.Inter’l.BrotherhoodofElec.Workers (2002) 97Cal.App.4th1142 Colarossi v.CotyUSInc. (1999) 76Cal.App.4th895 Cloud v.Casey (2014) 223Cal.App.4th736 Cheal v.ElCaminoHosp. (1997) 57Cal.App.4th228 Brundage v.Hahn (2000) 78Cal.App.4th66 Begnal v.Canfield& Assoc.,Inc. (2009) 178 Cal.App.4th455 A.M. v.Albertsons (2005) 36 Cal.4th 1028 v.L’OrealUSA,Inc. Yanowitz (2019) 7 Cal.5th 871 Wilson v.C.N.N.,Inc. (2019) 6 Cal.5th931 Sweetwater UnionHighSchoolDist.v.GilbaneBuildingCo. (2006) 39Cal.4th260 Soukup v.LawOfficesofHerbertHafif T T PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP TO IN OPPOSITION AUTHORITIES & POINTS OF MEMORANDUM PLAINTIFF’S ITLE ITLE 214Cal.App.3d590 th 467 . C ALIFORNIA .
Deadline A PPELLATE iii. C OURT
D ECISIONS :...... 13 :...... 21 :...... 11 :...... 13 :...... 11, 12 :...... 13 :...... 14 :...... 13 :...... 14 :...... 18 :...... 11 :...... 19 :...... 12, 20 :...... 11, 15, 19 :...... 02, 07, 08, 09, 10 :...... 02, 10 :...... 02
P P AGE AGE Livingston • Bakhtiar 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Cal. Govt.Code§12940(a) Cal. Govt.Code§ 12928 Cal. Govt.Code§ 12926(m)(1)(B)(ii) Cal. CivilCode (2019) 31Cal.App.5th1096 Symmonds v.Mahoney (2008) 162Cal.App.4th1241 Steele v.YOPB (2016) 5 Cal.App.5th 570 Soria v.UnivisionRadio (2008) 168Cal.App.4th992 Schaffer v.SanFrancisco (2010) 188 Cal.App.4th297 Sandell v.Taylor-Listug,Inc. (2016) 2 Cal.App.5th 1028 Ramirez v. Dependable Highway Express, Inc. (1997) 53 Cal.App.4th935 Prilliman v.UnitedAirLines,Inc (2000) 88 Cal.App.4th52 Morgan v.U.C.Regents (2016) 248Cal.App.4th216 Moore v.RegentsofU.C. (2006) 142Cal.App.4th377 McRae v.Dept.ofCorrections (2004) 115Cal.App.4th1174 Mathieu v.NorrellCorp. (2008) 165 Cal.App.4th686 Mamoui v.TrendwestResort (2000) 85Cal.App.4th245 Jensen v.Wells Fargo (2013) 221Cal.App.4th1510 Hunter v.CBS T T PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP TO IN OPPOSITION AUTHORITIES & POINTS OF MEMORANDUM PLAINTIFF’S ITLE ITLE
§ 2332
C ALIFORNIA
Deadline. S TATUTES iv. &
R EGULATIONS :...... 13 :...... 12, 14, 15, 20 :...... 03 :...... 11 :...... 17 :...... 14 :...... 09 :...... 12 :...... 02 :...... 17, 18 :...... 12, 20 :...... 13, 19 :...... 14 :...... 13 :...... 03 :...... 01, 15 :...... 11 :...... 09
P P AGE AGE Livingston • Bakhtiar 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 2 C.C.R. §11068(a) 2 C.C.R.§11065(l)(3) Cal. Govt.Code§ 12941 Cal. Govt.Code§12940(m)(2) Cal. Govt.Code§12940(m) T PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP TO IN OPPOSITION AUTHORITIES & POINTS OF MEMORANDUM PLAINTIFF’S ITLE
Deadline v. :...... 17 :...... 12, 20 :...... 11 :...... 12 :...... 12
P AGE Livingston • Bakhtiar 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 past. ( “synth” music of all kinds, including rap or hip hop, just as he haddid done Mr. on Clausen countless have occasions nothing into thedo with the decision to use an orchestra, he was amply able to create 31 it could be reviewed and modified days before being recorded with an orchestra3 ( other members of his team ( and emails prove that it knew and allowed Mr. Clausen to regularly delegateemployee the ofcomposition Twentieth of Century music toFox (“FOX”) ( that the real reason was unlawful was reason real the that the employer for Defendants because “evidence that the employer’s claimed reason is false ... will tend to suggest that for Mr. Clausen’s termination are nothing but pretexts based on demonstrable lies. failed tofulfill“[his anything,for now Selman—who Matt awards and other honors. Not only was Mr. Clausen never criticized by any of the Defendants at any time Clausen’s work on spanning every possiblestyle ofmusicranging fromclassicaltorap.( for composer the was Clausen were spent as a composer in the film and television industries. During the last 27 years of his career, Mr. Epai add) hn h frgig rnil i pie wt te iig f r Clausen’s Mr. of timing the with paired is termination—a monthaftertelling FOX hehadParkinson’sdisease—thetruthbegins toemerge. principle foregoing the When added.) (Emphasis PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP TO IN OPPOSITION AUTHORITIES & POINTS OF MEMORANDUM PLAINTIFF’S ); the producers also knew the music for each episode was “mocked-up” using computer software so that ; S.Clausen Decl. ¶¶ 16-18 The above email is just the tip of the proverbial mountain of evidence showing that the alleged reasons Recognized as one of the most accomplished, prolific and respected composers in theindustry, Mr. which years—50of nearly60 for musician a been had Clausen Alf termination, his of time the At A.Clausen 1 While Defendants contend otherwise, Mr. Clausen was not an independent contractor, but a W-2 seeks to conceal the real reason for its actions
Decl. ¶¶ 2-6 The Simpsons ] and others’creativevision ] MEMORANDUM OF POINTS ANDAUTHORITIES A.Clausen Decl. ¶¶ 24-26 , , 51 36-45 - h Simpsons The garnered a record 23 Emmy nominations, two Emmy wins, five Annie 53
Deadline( .” ; ; Exh. 3 Exh. 6 Mamoui v. Trendwest Resort Trendwest v. Mamoui swears INTRODUCTION , ; pp. 8 S.Clausen Decl. ¶¶ 38-39 A.Clausen under penalty of perjury that Mr. Clausen had routinely had Clausen penalty under perjuryof Mr. that ato sre, hr h soe nmru episodes, numerous scored he where series, cartoon ”—had thistosay inDecember2016: , 1. I. 14-17 , 46-63
Decl. , 21 ; , S.Clausen ¶¶ 8-9 ; and this in turn may support an inference Exh. 5 ¶¶ 11-12; Exh. 4 (2008) 165 Cal.App.4th 686, 715.) 686, Cal.App.4th 165 (2008) , pp. 1 A.Clausen Decl.¶¶6,44-45 ) , 3 , 6 , A.Clausen Decl. ¶¶ 29- ); FOX’S own records 16-18 , 9-17 1 This poses a problem ( ); and, not only , 25-37 Exh. 6 ; Exhs. 1- ) ) Livingston • Bakhtiar 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 including and orchestratorinfilmtelevision.( ¶ 2)Starting inorabout1967,Mr.ClausenmovedtoLos Angeles andbegan his career as a composer denied. ( evidence as true and draw all reasonable inferences therefrom in his favor, Defendants’ Motion must be ailing employee. Since the lenient anti-SLAPP standards now require this Court to accept Mr. Clausen’s old, an accommodate to having avoid to effort an in bydiscriminatoryanimus, motivated but speech, that thedecisiontoterminatehislengthy employment was not only unrelated to the furtherance of free many notablefeaturefilms,including Mr.Mom Moonlighting statute. ( directly fromprotectedspeech ( merit.’” ‘minimal California StateUniversity least haveat “claims his that Clausen needdoisshow v. Gilbane Building Co. Cal.App.4th 992, 1004, italics inoriginal, otheremphasisadded; litigate to having from elrgre, my oiae cmoe wo a dvlpd n xasv mscl palette, musical expansive an developed encompassing allformsofmusic,ranging from classicaltomodernandmore.( had who composer nominated Emmy well-regarded, The NakedGun PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP TO IN OPPOSITION AUTHORITIES & POINTS OF MEMORANDUM PLAINTIFF’S Between 1967 and 1990, Mr. Clausen was the composer on a myriad of successful television shows, Plaintiff Alf Clausen, now 79, has been a musician for the vast majority of his life. ( However, through Defendants’ own documents and subterfuge of lies, Mr. Clausen can demonstrate s cnwegd y h Clfri Spee or, te a st lwr a a eosrto of demonstration a at lower, sits bar “the Court, Supreme California the by acknowledged As While Defendants loathe to admit it, the anti-SLAPP procedure was created “to insulate [defendants] Soukup v.LawOfficesofHerbertHafif Wilson The Donny & Marie ; ALF , 7Cal.5that891; , justtonameafew.( Wilson v. C.N.N., Inc. WilsonC.N.N., v. ; and many others. ( (2019) 6 Cal.5th 931, 945.) Therefore, to overcome Defendants’ Motion, all Mr. plainly (2017) 2Cal.5th1057,1061.)(Emphasisadded.) STATEMENT OF RELEVANTFACTSSTATEMENT OF
Show and lacksminimalmeritaresubjecttobeing stricken undertheSLAPP
unmeritorious
DeadlineJeffra v.Cal.StateLottery ; A.Clausen Decl.¶ The Mary Tyler Moore Hour A.Clausen Decl. ¶¶ A.Clausen Decl.¶¶ (2019) 7 Cal.5th 871, 891.) Only causes of action that arise that Only 891.) action causes of 871, Cal.5th 7 (2019) ; (2006) 39Cal.4th260,278-279.) lawsuits Splash II. 2. ‘minimal merit. ‘minimal ;
( ....” Weird Science 6) By 1990, Mr. Clausen was an established, 4-5 2-3 (2019) 39Cal.App.5th471,485.) cafr . a Francisco San v. Schaffer ) Mr. Clausen was also the composer of ) Sweetwater UnionHighSchool Dist. ; Fame ’” ;
Ferris Bueller’sDayOff ( ; Park v. Board of Trustees Board v.Park Little House on the Prairie A.Clausen Decl.¶ A.Clausen Decl. 20) 168 (2008) ; and 6) ; Livingston • Bakhtiar 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 ( FOX. at Administration & Production Music Television of President Vice the Farhat, Carol as well was namedthemost-nominatedcomposerinEmmy history. ( 23 Emmy nominations. ( astounding an Lyrics;received and and Music in IndividualAchievement Outstanding for both 1998, had amassedanextensive andcomprehensivemusiclibrary todrawfrom.( country, big-band, choral, contemporary, etc. ( episode, spanning a wide spectrum of styles and genres from rock, R&B, rap/hip hop, electronic, disco, complete nature of the relationships between Gracie, FOX and the otherClausen’s Defendants request herein. to open discovery, he is, at this early stage of the litigation,for enforcement unable to of fully rights explain under the the FEHA. ( internal quotes omitted.) Under such circumstances, the employee may lookand toa second, either or the both ‘special’ employers employer.’” ( over the employee, that employee may be held to have two employers—hisan employee original to do or work ‘general’ for employeranother person, and both have the right to Gracieexercise and certain FOX. powers ( of control Inc. employer on the employee’s Federal Form W 2 (Wage and Tax Statement)....”presumption ( that ‘employer,’ as defined by [the FEHA,] includes anyemployee person of or FOX.entity identified( as the theemotioncueconveyed,the subtext, etc.( cue had to sound, the style of music, where in the episode the cue went, how the cue started and ended, substantive aspect of every piece of music (called a “cue”) that went into the episode, including how the Matt Selman,wouldmeetwithMr.Clausentogive himvery specific, detailed instructionsastoevery unexpectedly inAugust 2017. 7-8 the creatorof ¶¶ 8-10 PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP TO IN OPPOSITION AUTHORITIES & POINTS OF MEMORANDUM PLAINTIFF’S A.Clausen Decl. ¶¶ 13-14 While While with the show, Mr. Clausen primarily reported to the producers, Al Jean and Matt Selman, as As thecomposerfor During his time as the composer of In 1990, after the ) That episode marked the beginning of a 27 year career ( (2001) 26 Cal.4th 798, 826, internal quotes omitted; 3 2 ; Gracie Films co-produces While Defendants insist that he was an S.ClausenDecl.¶7 The Simpsons A.Clausen Decl. ¶¶ 13-14 A.Clausen Decl. ¶¶ 11-13 ALF The Simpsons The A.Clausen Decl. ¶ 10) In 2011, after his 30 television series ended, Mr. Clausen had a fateful meeting with Matt Groening, , 15) Two weeks before an episode aired, its “showrunner,” either Al Jean or series,during whichheagreed toscoreoneepisode. ( ) Eachepisodecouldcontain30ormorecues.( 2 ( A.Clausen Decl.¶¶7-9
The Simpsons Deadline The Simpsons , Mr. Clausen won five Annie Awards; twoEmmysAnnie five won Clausen Mr. in1997and , Mathieu v. Norrell Corp. Ibid ) California law recognizes that “[w]here an employer sends ; A.Clausen Decl. ¶¶ Exh. 4 , at 1184.) Regardless, since this Court denied Mr. independent contractor with FOX, and Mr. Clausen was controlled by both A.Clausen Decl. ¶¶ Decl. A.Clausen 3. , Mr. Clausen scored nearly all of the music for each ) Under California law, there exists “a rebuttable Cal. Govt. Code , 11-13 as a W-2 employee A.Clausen Decl.¶10 , 78-81 (2004) 115 Cal.App.4th 1174, 1183, 9, th 44) As such, by 2017, Mr. Clausen 17-23 , Mr. Clausen was actually a W-2 Emmy nomination, Mr. Clausen ; § 12928.) Exh. 4 , A.Clausen Decl.¶¶ 29-31 Richards v. CH2M Hill, A.Clausen Decl.¶ ) that ended abruptly and ) A.Clausen Decl.¶¶ , 33-35 ) ; Bush Decl. Bush
9, 44) 19) 3 Livingston • Bakhtiar 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 divide the work between himself and his team. ( composers. ( ( Farhat knew Scott Clausenwascomposing cues.( Carol and Selman Matt Jean, Al that showing 2008, to back dating emails even are There 26) ¶ Decl. ( episodes. various of cues the co-composed or composed had him, than other who, about sheets” it prepared for each episode. not personally writing every pieceofmusicthatwentintoevery episode.( Decl. ¶¶ 9-14 music tohisteam,including hisson Scott Clausen. ( had to be written within five to six days, Mr. Clausen routinely delegated the composition of some of the since they are used to calculate royalties. ( he hadincorporatedinto theorchestra.( 1990s, the producers explicitly instructed Mr. Clausen to remove a synthesizer and an electric piano that originally decided to use a live orchestra for the music. ( ( route. 3, 6,9-17 ( session. recorded the before change to able were they which mockups, received occasion—regularly 29-30 ¶¶ Clausen the ability to make changes to any cue, days before the live recording session. ( of each cue called a “mockup.” ( members ofMr.Clausen’steam.( The cue sheets show that since at least 2009, hundreds of cues were composed or co-composed by other PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP TO IN OPPOSITION AUTHORITIES & POINTS OF MEMORANDUM PLAINTIFF’S A.Clausen Decl. ¶¶ 29-30 A.Clausen Decl. ¶¶ 30-31 Thereafter, Mr.Clausendeterminedthetimeneededtoscoreepisodeby its deadline and would Moreover, every piece of music that went into an episode was written with computer software. computer with written was episode an into went that music of piece every Moreover, Mr. Clausen had also engaged in numerous discussions with Al Jean, Matt Selman and Carol Farhat “cue bythe evidenced as team, his to cuesdelegated Clausen Mr. knew FOX that undeniable is It Notably, mockups could have easily been refined for broadcast, had the producers wanted to go that ) However, the creator and producers of the show, not Mr. Clausen, had Clausen, Mr. not show, the of producers and creator the However, 42) ¶ Decl. A.Clausen 4 Cue sheets are documents listing every cue in an episode and the cue’s composer or co- ) Theshowrunnerscouldalsomakechanges inpost-production.( ; A.Clausen Decl. ¶¶ 46-51 .lue Dc. ¶ 16-18 ¶¶ Decl. S.Clausen ) As the composer, Mr. Clausen was responsible for ; ; S.Clausen Decl. ¶¶ 16-18 S.Clausen Decl. ¶¶ 16-18 A.Clausen Decl. ¶ 29;
Deadline A.Clausen Decl.¶¶49-63 4 ( A.Clausen Decl. ¶¶ 46-51 ; S.Clausen Decl. ¶¶ 25-31 A.Clausen Decl.¶¶40-43 A.Clausen Decl. ¶¶ 46-48 Mt Sla ad l enee Jms ros on Brooks James Jean—even Al and Selman Matt ) A.Clausen Decl. ¶¶ S.Clausen Decl.¶ 35; 4. A.Clausen Decl. ¶¶ 18,25-28,46-63;S.Clausen ) The software generated a synthesized preview , A.Clausen Decl. ¶¶ 39, 43) In fact, in the early S.Clausen Decl. ¶¶ 16-18 51-53; Exh. 3, ; S.Clausen Decl.¶¶29-37 ; overseeing ; S.Clausen Decl. ¶¶ 25-31 Exhs. 1-2 , ) 23-24 50 ; pp. 5-12, 14-21 S.Clausen Decl. ¶ 26 ) Since the score of an episode Exh. 3 A.Clausen Decl.¶ A.Clausen Decl.¶35 the scoring of each episode, ) Cue sheets are important , pp. 1-4, 6-13, 17-27 )
Mockups gave Mr. A.Clausen Decl. ; Exh. 5, ; Exhs. 1-2 ; A.Clausen Exhs. 1-2 ) 25) pp. 1, ) ) ) ) Livingston • Bakhtiar 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 composer of composer no longer beconcealed.( he tried keeping his condition a secret, by the start of the 2016/2017 season, some of his symptoms could to transition away from an orchestra and into synth music in order to cut costs. ( Likewise, Mr. Clausen was never told by anyone that the music budget was too high or that FOX wanted or anyone—regarding( music. show’s the of cost budgetthe or the to meet all budgetary constraints and was never once criticized or given any negative feedback—by her to themusicofshow.( supervised thescoring of ( professionals. Clausen’s “orchestrationentourage” inDecember2016.( Even Matt Selman, who now attests to something different, expressed feeling performance capabilities.( or was foreign toMr.Clausenorthathewas 45) In sum, after 50 years of composing music for films and television, there was no style of music that song “Insane in the Membrane,” by the rap group Cypress Hill, using an orchestra. ( including the “Homerpalooza” episode of season 7, where the producershadhim compose the hip hop ( music. ¶¶ 42-43 to synth music and was fully capable of creating it if the show’s hierarchy wanted it. ( ( show television the of episode parody a composed Clausen ( it. beingcontained parodied was that music source PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP TO IN OPPOSITION AUTHORITIES & POINTS OF MEMORANDUM PLAINTIFF’S A.Clausen Decl. ¶ 41 ; Indeed, Mr. Clausen’s awards and accolades underscore his competence, as does his 27 years as the In 2013, Mr. Clausen was diagnosed with Parkinson’s disease. ( music of team a and budget a managed Clausen Mr. composer, show’s the as Additionally, By thesametoken,Mr.Clausenwasequally capableofcreatingand anyrap hiphop, otherstyle of the when or it, required episode or scene a when synthesizers used only Clausen Mr. result, a As A.Clausen Decl. ¶¶ 6 ¶¶ Decl. A.Clausen ; S.Clausen Decl.¶ The Simpsons The .lue Dc. ¶¶ Decl. A.Clausen S.Clausen Decl. ¶ A.Clausen Decl.¶¶ The Simpsons A.Clausen Decl. ¶¶ Decl. A.Clausen —during which time no one ever criticized or complained about his work his about complained or criticized ever one no time which —during
A.Clausen Decl. ¶¶ Decl. A.Clausen 38) Deadline cues, hop hip and rap numerous composed had Clausen Mr. 44) 36, , 14-15 , but was in charge ofoverseeing allbudgetary mattersrelating uncomfortable 39) Therefore, Mr. Clausen never expressed any opposition M. lue rpre t Crl aht wo o only not who Farhat, Carol to reported Clausen Mr. ) 66-69 ) Mr. Clausen routinelyClausen Ms. FarhatMr. 16) with worked 14, 5. 10, 36-37 10, ; ) For instance, in 2007, Mr. 2007, in instance, For41) ¶ Decl. A.Clausen S.Clausen ¶¶10 A.Clausen Decl.¶¶ creating. ( ; S.Clausen Decl. ¶ Decl. S.Clausen 24 , which contained only synth music. synth only contained which , A.Clausen Decl. ¶¶ 64-65 A.Clausen Decl.¶¶ A.Clausen Decl.¶¶ , 40-47 honored )
37-38 A.Clausen Decl. ¶ 79) 24; A.Clausen Decl. ¶ ; Bush Decl. ¶ 13) ¶ Decl. Bush A.Clausen Decl. Exh. 6 to be part of Mr. 16,36,80-81 6,36,44) ) Although ) ) Livingston • Bakhtiar 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 Clausen about his Parkinson’s disease and in response, Mr. Clausen told Selman that he was also experiencing fatigue excess associatedwithhiscondition.( was he that Selman told Clausen Mr. response, in and disease Parkinson’s his about Clausen down doing pretty well given the situation; I’ve been diagnosed with Parkinson’s and it’s just slowing my legs “ ( Farhat’s commentstobeinreferencetherumorsabouthisfather’sillness.( the time to piss off the producers When Scott protested, Farhat threatened him by saying: “ Farhat demanded that Scott Clausen perform the work for a fraction of his normal rate. ( ( special 3D virtual reality project that Google was co-producing for the show, called the “VR Couch Gag.” of therecording sessions.( August 2016, Mr. Clausen was walking with a special cane and taking unusual rest breaks during some workers were asking Scott Clausen if his father was “okay” and by the start of the 2016/2017 season, in ( co-workers. andcolleagues among growingconcern of sense general stiffen andriseintheairoutsideofhiscontrol.( his legs hadstopped cooperating withhim.( 16) On occasion, Mr.Clausenwouldwas also observed stopping in his tracks—mid stride—as though his physical presentation, including a slow, guarded stride and intermittent tremors. ( increasingly slower,guarded gait whenwalking. ( ( illness. his of signs overt exhibiting ( PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP TO IN OPPOSITION AUTHORITIES & POINTS OF MEMORANDUM PLAINTIFF’S S.Clausen Decl. ¶ 10 Bush Decl. Bush S.Clausen ¶ 47) However, because the cost of this special project exceeded the season’s allotted budget, you doing okay Alf? okay doing you On or about December 9, 2016, Mr. Clausen was at a live recording session attended by Matt Selman. a on work to 2016,Clausen September CarolFarhatabout Scott asked Significantly,or about or in a perceived Clausen Scott symptoms, exhibiting started Clausen Mr. as 2015, about or in Starting changesunmistakable the in noticed also Bush, “Birdie” Roberta assistant,personal Clausen’s Mr. 2016, May and 2015 fall between season, prior the about or by fact, In .” ( 5 The television season began every August and ended in or about May of the following year. Bush Decl.
¶ 18) During a break, Mr. Clausen rose from his seat in such a manner that Selman asked:
¶ 18; ” or words to that effect. ( effect. that to words or ” ; Bush Decl. ¶ 21 A.Clausen Decl. ¶¶ 71-72 A.Clausen Decl.¶68
Deadline....” or words to that effect. ( S.Clausen ¶¶ 41-42 ¶¶ S.Clausen ) Bush Decl. Bush Bush Decl. Bush Bush Decl. ; S.Clausen¶¶43,45 S.Clausen ¶43 6. ; Exh. 6) The following day, Selman emailed Mr.
¶ 17) On other occasions, hisarmappearedto with what’s going on with your dad, now’s not ) This included tremors in his hands and an and hands his in tremors included This ) A.Clausen Decl.¶¶71-72 ¶16)
S.Clausen ¶ 48) Scott Clausen interpreted ) Mr. Clausen candidly replied: “ replied: candidly Clausen Mr. 18) ¶ ; Bush Decl. ) By 2016, co- By2016, 46) ¶ S.Clausen ; Bush Decl. 5 Mr. Clausen had begun had Clausen Mr. S.Clausen ¶¶48-50 ¶¶14-16 Bush Decl.
¶ 15) S.Clausen ¶ 48) ; Exh. 6 ) )
¶¶ 14- ) I’m Livingston • Bakhtiar 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 adverse action, adverse “[c]ases thatfitdescriptionarethe exception,“[c]ases nottherule.” ( ability to speak....” ( cannot be tangential. Rather, it must “bear[] a sufficiently activity protected the and action adverse the between nexus The added.) (Emphasis 890.) at Cal.5th month afterhedisclosedhisdiagnosis toFarhat.Worse yet, theshow’s ¶¶ 13, ¶¶ employment was terminated because FOX had decided to go in a “ Clausen wasstillabletoperformhisjobandintended stay.( ( disclosure toFarhat beforestarting therecording session.( ( importance “ discuss confidentially to Farhat Carol with meeting a scheduled Clausen ( to oversee the recording of the vocals for six episodes that were going to air during the 2017/2018 season. the show’s music is still the exact same style and type as before. ( required by the FEHA nor did they ever offer him any accommodations.his condition, ( Defendants neither engaged Mr. Clausen in the timely, good faith interactive process as PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP TO IN OPPOSITION AUTHORITIES & POINTS OF MEMORANDUM PLAINTIFF’S A.Clausen Decl. ¶ Decl. A.Clausen A.Clausen Decl. ¶¶ A.Clausen Decl. ¶ Decl. A.Clausen To meet the first of their two-step SLAPP burden, Defendants “must show that the complained-of the that show “must Defendants burden, SLAPP two-step their of first the meet To SHOWING OF BURDEN INITIAL THEIR MET NOT HAVE DEFENDANTS A. oee, n uut 6 21, ihr Ski f rce im, oiid r Casn ht his that Clausen Mr. notified Films, Gracie of Sakai Richard 2017, 16, August on However, Following his meeting with Farhat, Mr. Clausen expected to continue being the composer of the show. 30,2017,Mr.ClausenmetwithFarhatOn June inherofficeanddiscussedhisdiagnosis withher. On June 30, 2017, over a month after the2016/2017seasonhadended, Mr. Clausen was scheduled THAT THEADVERSEACTWASASLAPP–PROTECTED ACTIVITY. 78; 6 7 While Mr. Clausen did need some minor accommodations for his condition, after learning about Mr. Clausen has watched S.Clausen Decl. ¶¶ Decl. S.Clausen ” thatwasunrelated totheshow.( , is an act in furtherance of its speech or petitioning rights.” ( rights.” petitioning or speech its of furtherance in act an is itself, of and in Ibid 73-74 77 77; , at 894.) (Emphasis added) As the California Supreme Court in ) While the physical manifestations of his illness were starting to show, Mr. show, to starting were illness his of manifestations physical the While ) Bush Decl. ¶¶ 19-20 ¶¶ Decl. Bush ; Exh 7, 56-59
The Simpsons Deadline pp. 1-7 ; LEGAL ARGUMENTS Bush Decl. ¶ Decl. Bush ) The day before the recording session, on June 29, 2017, Mr. A.Clausen Decl.¶¶ since his termination and despite Sakai’s representation, ) Right after, Mr. Clausen told Birdie Bush about his about Bush Birdie told Clausen Mr. after, Right ) III. 7. ) Mr. Clausen’s termination came just over a over just came termination Clausen’s Mr. 22) substantial Bush Decl.¶¶19-20 A.Clausen Decl.¶¶ A.Clausen A.Clausen Decl. ¶ 84 different direction. Id 75-76 ., at890.) relationship to the organization’s A.Clausen Decl. ¶¶ 82-83 direction ; Exh 7 oehn f significant of something ) , p. 8 never changed. ” ( 69-70, 75, 82,84) 69-70, ) ) Wilson A.Clausen Decl. observed, Wilson 7 ) , 7 , 6 Livingston • Bakhtiar 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 ( anti-SLAPP statute’sconcern.”( “might well have a message.... organization’s with vested employees[are] as “who well as organization, the organizations to just those involving the hiring or firing of “ at 896.)(Emphasisadded.) respect to those who write, edit, or otherwise produce content SLAPP burden, it emphasized that “[n]ot every staffing decision a news organization initial makes— its of purposes the for activity protected a was agency news a as reputation its of integrity the and 896-897.)While Wilson between itsnewsbusinessandfreespeech.( here—that do Defendants Cal.5th at 882.) The plaintiff sued under the FEHA and CNN filed an anti-SLAPP Motion, arguing—as ( plagiarized.were publication for drafted had he article an of parts that concluded editor an is theterminationofhisemployment. (SeeFAC at Bleeding Fingers “ upon predicated being as claims his mischaracterize Defendants burden, initial PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP TO IN OPPOSITION AUTHORITIES & POINTS OF MEMORANDUM PLAINTIFF’S Id .) (Emphasisadded.)This isacriticaldistinctionthatDefendantsoverlook. Wilson Wilson However, the California Supreme Court rejected this proposition as untenably broad. ( In their of scope limited the meeting into action Clausen’s Mr. shoehorn to effort an in Nonetheless, Wilson then went on to narrow the ambit of SLAPP-protected employment decisions made by media further explained that: , a journalist who wrote and produced stories of public importance was fired by CNN after .” (See Motion, p. 14:21.) This is wrong. The core predicate for Mr. Clausen’s damages substantial effect chill participation in the discussion of public issues, as issues, public of discussion the in participation of chill selection the influencing individuals who at directed “[l]awsuits otiue o bt ak liae a oe, their over, say ultimate employer’s lack speech but may to, who newsroom contribute a in employees other with so surely as suits targeting the act of speaking itself. ” ( ” all all ultimatelycombating foundthatCNN’sinterestin plagiarism topreserve Id of its hiring and firing decisions were protected given the connection the given protected were decisions firing and hiring its of ., at 896.) (Emphasis added.) (Emphasis 896.) at ., Id Deadline .) (Emphasisadded.) on the organization’s ability to speak on public issues, which is the wield that type of ultimate authority .” Ibid , at894.) 8. Exh. 8 , ¶¶ 25-28 on-air” employees who speak “ —enjoys constitutional protection.” ( ultimate authority to determine a news a determine to authority ultimate Wilson ) reasoned that these employees these that reasoned But not could h so’ ue of use show’s the Id. on behalf of , at 894-895 even with Wilson Id., , 7 , ” Livingston • Bakhtiar 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 on stage—akintothecasting decisionin 1101.) The popular musicianwithhit songs andmillions ofrecordssold.( Eddie Money filedananti-SLAPP Motion andpresentedevidencedemonstrating thathewasa Symmonds exercise of free speech. ( an was hired to fill a vacant weather anchor position instead of him. ( ... and thus too remotely connected to the public conversation about those issues to merit protection ....” said, the music accompanying viewers watch that evidence any there is Nor is. popularity Money’s Eddie that way the music its to attributable is personality nor a live musician in a rock band. There is also no evidence that in plaintiffs the unlike Furthermore, pp. 8 recorded. been had ( after it recording session and would also make changes to the music during the post production “dub” session, 3-4; SelmanDecl.¶¶14)Theshowrunnerreceivedmockups of the music for approval days beforethe etc. emotion, its be, ( to had it style what ended, and began it how ended, and began it where like, 8-10 music was held by the episode’s showrunner. ( contrast, By contributed in plaintiff the Like activity. SLAPP-protected a considered be not can DefendantsignoreWhile thelimitationsimposedby speak either to authority and PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP TO IN OPPOSITION AUTHORITIES & POINTS OF MEMORANDUM PLAINTIFF’S FilmOn.com Inc.v.DoubleVerify A.Clausen Decl. ¶¶ on-air Under the narrow Wilson Hunter v. CBS ; S.Clausen Decl. ¶ 7) The showrunner dictated to Mr. Clausen exactly what the music had to sound , 14-17 8 In weather anchor was akin to a , EddieMoney’s formerdrummersued him forFEHA violationsandwrongful termination. thus embracesunderlyingrationale thus the Hunter Symmonds to Defendants’speech,butlackedthe , 21; The Simpsons The all Exh.5 , the plaintiff sued for age and gender discrimination after an attractive young woman (2013) 221 Cal.App.4th 1510, but only because the employees at issue had sufficient of the decision-making authority in connection with every aspect of an episode’s of aspect every with connection in authority decision-making the of substantial effect 17-23 court concluded thatasinger’s selectionoflivemusicians Hunter , pp.1 on behalf of behalf on , 29-31 A.Clausen Decl. ¶¶ 29-31 ¶¶ Decl. A.Clausen for the content of its music—again, like EddieMoney’smusic—again,like Simply its of do. fans content the for The Simpsons , 369-17 , 221Cal.App.4that1527;
Deadline, 33-35 their employer,or their casting decision standard promulgated (2019) 7Cal.5th133,144-145.) Hunter Hunter ; ; seealsoLedesma Decl.¶5;Selman¶¶16-18) Bush Decl. ¶¶ 8-10 is just “too tenuously tethered to the issues of public interest A.Clausen Decl. ¶¶ —was protectedspeech. ( and Symmonds v. Mahoney v. Symmonds 9. ultimate authority Wilson , Symmonds
, made in the furtherance of the organization’s 35; substantially effect substantially Wilson S.Clausen Decl. ¶¶ 16-18 Decl.¶¶ S.Clausen , they areundeniableandmustbeapplied.
by ; Symmonds Hunter Wilson S.Clausen Decl. ¶ 7; see Jean Decl. ¶¶ , Mr. Clausen was neither an on-air an neither was Clausen Mr. , , 7Cal.5that896.)Similarly, in 17-23 to determinethespeech. held that the choice of selecting , the termination of Mr. Clausen , 29-31 , 31Cal.App.5th1096,at Wilson (2019) 31Cal.App.5th1096 Ibid The Simpsons their employer’s speech. employer’s their , at1106.) , , Mr. Clausen merely Clausen Mr. , 33-35 who playwith him 51- , ; Bush Decl. ¶¶ ’ popularity 53; Exh. 3, Exh. 8 Livingston • Bakhtiar 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 standard evenmoreforgiving thanthatonsummary judgment. renderingthe relaxed, is evidence plaintiff’s scrutinythe ofjudicial denied, discoverybeenwhere has asserted motive may often present paradigmatic ‘good cause.’ [Citation]” ( motive evidence in support of an anti-SLAPP motion, a plaintiff's request for discovery concerning the ( [Citation.]” ‘ speech, protected targeting ( possible “the regard, ( Motion. anti-SLAPP the to opposition in show, did plaintiff circumstances the from drawn be might that inferences reasonable ignore “cannot court [Citation].” ( evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim Sweetwater quoting at ademonstrationof‘ is a limited one.” ( the plaintiff.” ( first-step burden of showing that its challenged actions qualify as protected activity, the burden shifts to whether he has met his burden in establishing minimal merit. ( considered. As such, greater deference and leniency must now be accordedClausen’s to Mr. Ex-Parte Clausen Applicationin assessing to continue the matter so that his Motion to Open Discovery could be required to be considered and accepted as true. ( be will plaintiff a PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP TO IN OPPOSITION AUTHORITIES & POINTS OF MEMORANDUM PLAINTIFF’S Ibid Courts must therefore “remain mindful that the anti-SLAPP statute was adopted to end meritless suits Notably, the evidentiary burden is also reduced, as the court must consider any declaration submitted ( claims.’” factual conflicting resolve or evidence weigh not does court ‘[t]he stage, this “At the “In PLAINTIFF’S BURDEN AT THE SECOND STAGE B. OF THE ANALYSIS IS LOW. , at 948, particularly atthisstageofthecase 9 that the that This is especially important here, given this Court’s July 13, 2020 decision to deny Mr. relatively unusual relatively written statements themselves statements written Id Wilson fn Wilson .) (Emphasis added.) Where a plaintiff fails to 12, italics in original.) Unless the evidence suffers from “the sort of evidentiary problem facts asserted facts Ibid incapable of curing of incapable , 6 Cal.5th at 940.) Instead, the court “accepts the plaintiff’s evidence as true, and Instead,true, evidence “accepts as plaintiff’s court the 940.) the at , 6Cal.5th , 7 Cal.5th at 891.) (Emphasis added.) Accordingly, adefendantrelieson “[w]here , 7 Cal.5th 891.) (Emphasis added.) However, “the plaintiff’s second-step burden .) “The plaintiff need not prove her case to the court [Citation]; minimal merit not to abort potentially meritorious claims due to a lack of discovery of lack a to due claims meritorious potentially abort to not case in which the discrimination or retaliation defendant does meet its meet does defendant retaliation or discrimination the which in case Deadlinebytrial.” established evidence be at can admissible statements those in ’ [Citation].” ( ’ [Citation].” by the time of trial[,]” all of a plaintiff’s opposing evidence is evidence opposing plaintiff’s a of all trial[,]” of time the by .” ( Sweetwater need not be admissible at trial, but it must be must it but trial, at admissible be not need Jeffra Id 10. ., at 948, internal quotes omitted.) (Emphasis added.) Id , 39Cal.App.5that485.)(Emphasisadded.) .) (Emphasisadded.) , 6 Cal.5th at 949.) (Emphasis added.) In this In added.) (Emphasis 949.) at Cal.5th 6 , Jeffra directly refute 9 ( See Jeffra , 39 Cal.App.5th at 485.) Ibid , 39Cal.App.5that485.) a defendant’s evidence, the , at 891-892.) However, as a matter of law the bar sits lower reasonably Id .’ .’ ., , Livingston • Bakhtiar 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 /// or potential disability. disability a of knowledge acquiring avoid to effort purposeful any defeat to order in expansive Martin or ... it is based on the employer’s own perception–mistaken or not–of the existence of a disabling condition become aware, is obvious,theemployeewhether because it hasbrought ittotheemployer’s attention, Rancho SantiagoCmty.CollegeDist.(2018)22Cal.App.5th1187,1193-1194.) ( accommodations; andtheemployer failedtoreasonably accommodate theplaintiff’s activity; suffered from a physical or mental condition that made it difficult to participate in at least one major life 245, 256.) A failure to accommodate cause of action thus only requires the plaintiff to show that he/she accommodate is a violation to of the statute failure in and of itself. the ( since action, employment adverse an in resulted disability employee’s the that proof policy—e.g. retaliation inviolationoftheFEHA. ( public of violation in was employment his/her of termination the v. L’Oreal USA, Inc. adverse an to subjected was employmentbased onanunlawfulreason—namely,action engagingprotected activity.a in he/she ( that showing by retaliation establishes can plaintiff A 355.) circumstances suggesting a discriminatory motive. ( performing the job competently; and suffered an adverse employment action such as termination, or other PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP TO IN OPPOSITION AUTHORITIES & POINTS OF MEMORANDUM PLAINTIFF’S Brundage v. Hahn v. Brundage The “FEHA’s reference to a ‘ Unlike with discrimination and retaliation, a failure to accommodate cause of action does not require was class; protected a of member a was he/she that show must plaintiff the discrimination, For the employer has come upon information .T 1. 10 (2006) 140 Cal.App.4th 34, 61, 34, Cal.App.4th 140 (2006) 10 Cal. Govt. Code that he/she was able to perform the essential duties of the job, either with or without reasonable D M HE ISCHARGE AND ERIT OF T (2005) 36 Cal.4th 1028, 1042.) For wrongful discharge, the plaintiff must show that (1997) 57 Cal.App.4th 228, 236; 228, Cal.App.4th 57 (1997) IMING OF H § 12926(m)(1)(B)(ii); 2 C.C.R. § 11065(l)(3). IS D P ISABILITY LAINTIFF known F
Deadline AILURE TO Gantt v.SentryIns. ’ disability is read to mean a disability of which the employer has D ’ fn S ISCRIMINATION T 21.) (Emphasis added.) This definition is intended to be to intended is definition This added.) (Emphasis 21.) indicating ERMINATION A CCOMMODATE 11. Guz v. Bechtel National, Inc. Jensen the presence of a disability.” ( Jensen v. Wells Fargo (2000) 85 Cal.App.4th (1992) 1Cal.4th1083,1089-1090.) E ,
R STABLISHES THE ETALIATION , 85 Cal.App.4th at 254; at Cal.App.4th 85 , C LAIMS . ,
W M RONGFUL (2000) 24 Cal.4th 317, INIMAL dsrmnto or discrimination , Gelfo v. Lockheed known Hernandez v. Hernandez disability. Yanowitz Livingston • Bakhtiar 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 termination ofanemployee theemployer the through accommodations of avoidance the encompasses paradigm This added.) (Emphasis 1255.) ( [Citation]” fact.’ the after taken action than retaliatory less no is [activities] protected well recognized that an “‘[a]ction taken against an individual preemptive retaliation sufficient to trigger the employer’s obligations under the FEHA. ( ability to work.” ( plaintiff’s] testimony credible, is that [the plaintiff] had a serious condition593.) that would interfere with her remove, requiring the partial removal of her stomach and esophagus asher well. supervisor ( that she had been diagnosed with a in anefforttoavoidhaving tofurnishhimwithreasonableaccommodations.( alleged that soon after notifying Farhat about his condition, his 27 years of employment was terminated ( Farhat. to notification his through and observations Prilliman FEHA. the under duties affirmative employer’s the with conflict only would added.) Imposing such a requirement upon an employee with a at 599 citing to ‘magic words’ in order to effectively Cal.App.5th 570,593and599.) 935, 949-951; 11068(a); § C.C.R. (2 disabilities. potential employer an once arises automaticallyaccommodate and process interactive a because is This accommodated. and process interactive not ( PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP TO IN OPPOSITION AUTHORITIES & POINTS OF MEMORANDUM PLAINTIFF’S Govt. Code These facts are the benchmarks for Mr. Clausen’s action, since the “FEHA protects employees against Here, Mr. Clausen has alleged that Defendants knew about his disabilities, both from their own their from both disabilities, his about knew Defendants that alleged has Clausen Mr. Here, Therefore, “[a]n employee Notably, since 2015, the FEHA has recognized require an employee to specifically Soria 11 In , 53Cal.App.4that949-951; concluded that “[t]he only reasonable interpretation of this information, if the jury finds [the § 12940(m)(2).) However, despite Defendants’ contrary view, Soria A.M. v. Albertsons Prilliman , the plaintiff-employee never made a “request” for accommodations, but did inform Id .) Accordingly, Soria .” ( , 53 Cal.App.4th at 954; Steele v. YOPB is not
Deadline (2009) 178 Cal.App.4th 455, 464; required to specifically invoke the protections of FEHA or speak any request request Soria (2008) 162 Cal.App.4th 1241, 1255.) (Emphasis added.) It is held that the information conveyed by the plaintiff was anticipates an accommodation under the statute.” ( Prilliman v. United Air Lines, Inc Lines, Air United v. Prilliman , 5Cal.App.5that599.) an accommodation as a predicate to being engaged in the potentially requests 12. see Gelfo will requireorrequestaccommodations.( Exh. 8 Exh. for accommodations to be protected activities. continuing affirmative duty affirmative continuing , 140Cal.App.4that62, cancerous tumor that her doctors wanted to in anticipation of , , known ¶¶ 14-16 ¶¶ Id ., at 593 and 599.) Soria v.UnivisionRadio disability, as Defendants suggest, , ) Mr. Clausen has further has Clausen Mr. 20) Govt. Code Soria 11 knows Exh. 8 . (1997) 53Cal.App.4th (1997) . that person engaging in (2 C.C.R. § 11068(a); § C.C.R. (2 , 5 Cal.App.5th at Soria fn. of an employee’s an of § 12940(m) , ¶¶20-23 to engage in the in engage to 22.) (Emphasis , 5 Cal.App.5th Ibid , at 1254- at , (2016) 5 Id , 25) .) does Livingston • Bakhtiar 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 at 977-978.)(Emphasisadded.) three to eight months iseasilywithinatime range that can support an inference of retaliation bright-line rule about the timing of retaliation” and instead held that, “[d]epending on the circumstances, Salem of City v. Coszalter timing Ins. Appeals Bd. short. ( at 1069.)(Emphasisadded.) protected activities and the adverse employment action “can provide employee’s an between proximity temporal the that observed again once Circuit Ninth the Cir.2003), in later, years Three added.) (Emphasis the issue go to the jury, 493, (9 ( child. disabled care his for order to in complained about he his employer’s after month refusal to a continue employee affordingan him of the termination modified the workby scheduleestablished he was needed discrimination and retaliation 354.) California courts look to pertinent federal precedent when applying our own statutes.” ( (1989) Corp Watch Am. North v. Flait Corrections ( discrimination. necessarythe and retaliation prove establish needed to link causal can events” of “[t]iming the words, decision.’[Citation.]” ( ‘ from an employer’s actions were caused by an employee’s engagement in protected activities may be inferred PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP TO IN OPPOSITION AUTHORITIES & POINTS OF MEMORANDUM PLAINTIFF’S Significantly,delaythe protected activitybetween adverse actdoesnotevenhaveto the the and be In To prove his allegations, Mr. Clausen can rely on the temporal proximity of his termination. “That relytermination. proximityhistemporal of the on can allegations,Clausen Mr. his prove To Ramirezv.Dependable Highway Express, Inc. (2016) 2Cal.App.5th 1028, a ” rm hc spotn ifrne cud e rw. ( drawn. be could inferences supporting which from ,” 214Cal.App.3d590,615.) proximity in time time in proximity th Flores v. City of Westminster 12 Cir.2000), “Because of the similarity between state and federal employment discrimination laws, (2006) 142Cal.App.4th377, 388; (2009) 179 Cal.App.4th 1475, a delay of four month was described as “ oaos v Ct U Inc. US Coty v. Colarossi 12 the Ninth Circuit concluded that “evidence based on timing can be sufficient to let Ray v. Henderson even in the face of alternative reasons proffered by the defendant ewe te rtce ato ad h algdy eaitr employment retaliatory allegedly the and action protected the between , 320 F.3d 968, (9 968, F.3d 320 ,
Deadline Cal.App.4 3 (1992) . , 873 F.3d 739, 750, Ibid , 217 F.3d 1234, 1244 (9 tgl v Ctdl racsig Co. Broadcasting Citadel v. Stegall , at 1049.) In1049.) at Passantinov.J&J, ConsumerProd. 20) 7 a.p.t 14, 1153; 1142, Cal.App.4th 97 (2002) th Morgan v. U.C. Regents Cir. 2003), the Ninth Circuit declined to adopt “any adopt to declined Circuit Ninth the 2003), Cir. 13. th 467, 479; 467, fn 5, (9 th th Cir.2000).) (Emphasis added.) In other Ibid Fisher v. San Pedro Peninsula Hosp. Peninsula Pedro San v. Fisher Cir. 2017). In strong evidence a 19. (mhss de. In added.) (Emphasis 1492.) at , (2000) 88 Cal.App.4th 52, 69; George v. Cal. Unemp. 30 .d 01 (9 1061, F.3d 350 , of retaliation.” ( prima facie prima ca v Dp. of Dept. v. McRae Guz .” ( relatively close , 24 Cal.4th at Ibid , 212F.3d , at 507.) .” ( case for Ibid Ibid th , , Livingston • Bakhtiar 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 and deceit. ( principle.” ( doesnotpreventoperationoftherule... [since]... [it] [t]he knowledge is, added.) Evenif“theknowledge acquired by theagent wasnotactually communicated totheprincipal Brotherhood ofElec.Workers and agent (1955) 44Cal.2d533,538.)Californialawhaslong against heldthat,“[a]s aprincipal,bothprincipal her principal, a conclusive presumption arises that the agent has performed that duty ( to capture the showrunners’ delegateto composition ofmusictohisteam;wasallegedlythe supposed not was Clausen Mr. unable to a singular proposition: Mr. Clausen was fired for performance deficiencies. Defendants contend that v. RegentsofU.C. reprieve process interactive the in engaging or accommodation reasonable providing of lieu in employment employee’s perceived-as-disabled a of termination pretextual “a engage and failure to accommodate causes of action are accommodations. reasonable for need and perceived that Mr. Clausen’s physical state was only going to deteriorate, dictating his inevitable request Clausen’s employment wasabruptly terminateddespitehis27years ofstellarperformance. condition. his to as doubt no leaving thereby Farhat, to diagnosis Parkinson’s his confirmed Clausen Mr. 2017, 30, June Consequently,on ( noticeable. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP TO IN OPPOSITION AUTHORITIES & POINTS OF MEMORANDUM PLAINTIFF’S Defendants’ unlawful motives are further highlighted by their efforts to escape liability through lies These factsgive risetoareasonableinference after confirmingsoon that hisdiagnosis, Defendants The evidence here shows that Mr. Clausen’s physical symptoms were increasing and becoming more .D 2. 14 13 from claims for failure to accommodate and failure to engage in the interactive process.” ( It is widely known that Parkinson’s disease is degenerative and terminal, with no known cure. Where an agent has acquired knowledge which he or she had a duty to communicate to his or are deemedtohavenotice ofwhatevereitherhasnotice Cloud v. Casey Id. A.Clausen Decl. ¶¶ Decl. A.Clausen A R E ) (Emphasisadded.) STABLISH THE EFENDANTS CCOMMODATE ETALIATION (2016) 248Cal.App.4th216,244.)(Emphasisadded.) (1999) 76 Cal.App.4th 895, 911-912.) Defendants’ arguments all boil down vision ’
L (1971)16Cal.App.3d686, 695; , IES M
C INIMAL ; and purportedly, was W LAIMS 66-69 DeadlineA BOUT THE RONGFUL RONGFUL 13 ( , . Soria M 71-72 14 ERIT OF While Defendants contend that Mr. Clausen’s failure to failure Clausen’s Mr. that contend Defendants While R , 5 Cal.App.5th at 593 and 599.) A month later, Mr. later, month A 599.) and 593 at Cal.App.5th 5 , ; EASON FOR 40-50 10, ¶¶ S.Clausen D 14. ISCHARGE AND AND ISCHARGE H IS time-barred incompetent D ISABILITY P LAINTIFF Civil Code , California law explicitly holds that with regard to synth and rap music. os not does ....” ( D ’ ISCRIMINATION S F T IUE TO AILURE ; Davis v.Inter’l. in law ERMINATION § 2332.)(Emphasis Bush Decl. Bush provide an employer an provide , imputedtothe Freeman v.Sup.Ct ,
¶¶ 14-16 ¶¶ Moore , , 18 a . ) Livingston • Bakhtiar 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 l en n Mt Sla ruiey kpe te eodn ssin sget hw uh at and faith much how confidence they had inMr.Clausen delivering their suggests sessions recording the skipped routinely Selman Matt and Jean Al record 23 Emmy nominations for his work on a amassinghistory, Emmy in composer nominated most the became and Awards Annie five Emmys, orchestration entourage feeling about confession 2016 December Selman’s aside Pulling of tardiness, after it learned she was disabled, established pretext. ( Cal.4th at 1061-1062.) In employee were known employer’s proffered reasons for termination were pretextual when the alleged complaints about the intellectually dishonest in light of the obvious limitations imposed by musicthe short that deadlines.went into every episode. ( Clausen was in charge of each episode had to be written in less than a week. ( 26, 46-63 wherein discussions about Scott Clausen and others composing cues are undeniable.FOX’Sown cuesheets, butemails between Matt Selman, AlJean, Carol Farhat andeven James Brooks, will U.S. 502, 511.) (Emphasis added.) In such an event, the “rejection of the defendant’s proffered reasons case, facie accompanied byis of disbelief if suspicion a accord, holding that “[t]he factfinder’s disbelief of the reasons put forward by the defendant (particularly unlawful was reason forreal itsactions,andthisinturnmayconceal the to supportaninferencethat Decl. ¶¶ 24-26 FOX had known he regularly delegated the composition of music to members of his team. rejection, ‘[n]o additionalproofofdiscriminationis PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP TO IN OPPOSITION AUTHORITIES & POINTS OF MEMORANDUM PLAINTIFF’S The notion that Mr. Clausen was unable to capture the showrunners’ the capture to unable was Clausen Mr. that notion The “[E]vidence “[E]vidence that the employer’s claimed reason is false ... will tend to suggest that the employer seeks Mr. Clausen’s evidence—which must now be accepted as true—demonstrates that, since at least 2008, permit 16 15 In Each episode could contain 30 or more cues. ( ; S.Clausen Decl.¶¶25-37 suffice to show intentional discrimination intentional show to suffice the trier of fact to infer the ultimate fact of intentional discrimination ... [and] upon such upon [and] ... discrimination intentional of fact ultimate the infer to fact of trier the Yanowitz .” ( .” , 46-63 Mamou , the California Supreme Court found triable issues of fact as to whether the ; S.Clausen ¶¶ 8-9 prior ( , 165 Cal.App.4th at 715.) (Emphasis added.) The U.S. Supreme Court is in is Court Supreme U.S. The added.) (Emphasis 715.) at Cal.App.4th 165 , overseeing Soria Exh. 6), during his 27 years as the composer of the show, Mr. Clausen won two to the protected activity, but no action had ever been taken. ( , evidence of the employer’s sudden interest in the plaintiff’s long-history Deadline A.Clausen Decl. ¶ the scoring of each episode, not personally writing every piece of ; Exhs. 1-2 , 16-18 mendacity The Simpsons , 25-37 and 15. A.Clausen Decl. ¶ vision required .” ( .” 3, pp.1-4
; A.Clausen Decl. ¶ 25 Exhs. 1-3 ) may, together with the elements of the prima the of elements the with may,) together St. Mary’s Honor Center v. Hicks v. Center Honor Mary’s St. ) Defendants’ contrary position is . ( . ( A.Clausen Decl.¶¶ A.Clausen Decl. ¶ 10) The mere fact that ,’[Citation].” ( ,’[Citation].” , 6-13 Soria ) This fact is confirmed not only through honored
28 , 17-27 , 5 Cal.App.5th at 596.) ) As the show’s composer, Mr.
19 vision to be part of Mr. Clausen’s Mr. of part be to ) Meanwhile, the score for Ibid ) 16 , italicsinoriginal.) 22,37-38 ( is equally ludicrous. equally is A.Clausen Decl. ¶¶ Yanowitz the real reason thereal 15 ( ) (1993) 509 (1993) A.Clausen , 36 Livingston • Bakhtiar 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 creating it, ashehaddonesooncountlesstimes.( evidence of Mr. Clausen ever expressing any opposition to synth music because he was fully capable of ( music. synth only containing 24, ( the synthesizer andelectricpianohehadincludedintheorchestra.( ( even beenrefinedforbroadcast.( S.Clausen Decl. ¶¶ 16-18 recorded.was( wantedbefore it they whatevermusic make the changes to “mocked-up” with computer software before the recording sessions,thereby allowing them to review and producers,The includingmusic. synthBrooks,Jamesknew musictheallforeachfurnish episode was using anorchestra.( producers had him compose the hip hop song “Insane in the Membrane” by the rap group Cypress Hill, includes numerous rap and hip hop cues, including the “Homerpalooza” episode of season 7, where the ( draw. could he which from librarymusic comprehensive and contemporary, etc. ( spectrum of styles and genres, from rock, R&B, rap/hip hop, electronic, disco, country, big-band, choral, composer of incapable of composing modern music, including electronic, rap and/or hip hop. During his time as the message, instantmessage, orinternalmemomentioning itduring his27years withtheshow. text email, one ben have would there contend, disingenuously and shamelessly now Defendants as Decl. ¶ ( time. any at abilities or work his about complaining ever PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP TO IN OPPOSITION AUTHORITIES & POINTS OF MEMORANDUM PLAINTIFF’S ) For instance, in 2007, Mr. Clausen composed a parodyashow composed television Clausen the Mr. of 2007, in 41) Forinstance, ¶ Decl. A.Clausen remove to In43) Clausen early Mr. the producers instructed even the 39, 1990s, ¶¶ Decl. A.Clausen Notwithstanding, Mr.Clausenstillusedsynthesizers, butonly whenscenes or episodesrequiredit. music. the for orchestra live a use to decided had show the of producers and creator the However, There is also no truth to the claim about Mr. Clausen requiring an orchestra or not being able to able being not or orchestra an requiring Clausen Mr. about claim the to truth no also is There Like the rest of their arguments, there is likewise no merit to the proposition that Mr. Clausen was Clausen Mr. that proposition the to merit no arguments,likewise their is there of Likerest the Not only never bythat, Mr.Clausenwasoncecriticized anyone and thereisnoevidenceofanyone 24; Bush Decl. ¶ 13) Surely, if Mr. Clausen was having so much trouble meeting expectations, The Simpsons A.Clausen Decl.¶45 A.Clausen Decl. ¶¶ , 51 , Mr. Clausen scored nearly all of the music for each episode, spanning a wide - 53 ; Exh. 3 DeadlineA.Clausen Decl.¶42 A.Clausen Decl. ¶ 41; ¶ Decl. A.Clausen , pp. 8 6, 9, ) , 14-17 36, 44) By 2017, Mr. Clausen had amassed an extensive 16. A.Clausen Decl.¶¶42-43 , 21 ) ; Exh. 5 S.Clausen Decl. ¶ Decl. S.Clausen A.Clausen Decl. ¶¶ Decl. A.Clausen ¶¶ Decl. A.Clausen , pp. 1 A.Clausen Decl.¶¶40-43 , 3 , 6 , A.Clausen29-31¶¶Decl. 9-17 ; S.Clausen Decl.¶ ) There is simply no simply is There 39) ) Mockups could have 10, 36-37 10, 6, 9, 6, ) This 44) 36, ; S.Clausen ) 38) ; Livingston • Bakhtiar 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 genres, suchasrap,electronic,etc.—eventhough theevidenceandhisworkhistory proveotherwise. at goodonly was Clausen Mr. that beliefs ageist discriminatory their unveiled have Selman and Brooks because is This bias. age an of claims Clausen’s Mr. support came tocomposing rapmusic.(Brooks Decl.¶3.) it when choice” “right the not was Clausen Mr. that concluded having to admits inexplicably Brooks “comfort zone” that did not include modern music, including rap. (Selman Decl. ¶ 19) Likewise, James v. Taylor-Listug,Inc. evidence that the plaintiff i.e. discrimination, unlawful of inference an to rise give that circumstances under action adverse the employment action; plaintiff the that evidence present must plaintiff a FEHA, under discrimination age of casefacie prima a out make to order “In discrimination. age of §§ 12940(a),12941.) workers who are over the age of 40 and these laws are interpreted “broadly and vigorously.” ( the laterphasesoftheircareers.”( in workers as individuals, but also of protecting older workers as a group, since they face unique obstacles synth musicinordertotransitionaway fromtheorchestraandsavemoney. ( use to FOXwanted that or high too budgetwas music the that anyone by never told also was Clausen by anyone about the budget or the cost of the show’s music. ( Carol Farhat to meet all budgetary limits and was never once orgivencriticized any negative feedback ( manage. to had he that budget a received PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP TO IN OPPOSITION AUTHORITIES & POINTS OF MEMORANDUM PLAINTIFF’S Aside from his sudden termination and younger replacement, these telling statements additionally statements telling these youngerreplacement, and termination sudden his from Aside a had Clausen Mr. that asserts Selman Matt whatsoever, support evidentiary any without Here, Under the FEHA, a plaintiff need only offer circumstantial evidence supporting a reasonable California’s age discrimination statutes are to be enforced “with the goal of not only protecting older Finally, the evidence shows that Defendants’ claims about the budget are also untrue. Mr. Clausen Mr. untrue. budgetare also the about Finally,Defendants’ claims that evidence the shows .D 3. E STABLISH THE EFENDANTS (3) (2010)188Cal.App.4th297,321.)(Emphasisadded.) was performing satisfactorily at the time of the adverse action; and was replacedbysomeonesignificantlyyounger ’
L M IES INIMAL
Deadline A BOUT THE Govt. Code M A.Clausen Decl. ¶¶ Decl. A.Clausen ERIT OF R EASON FOR § 12941.) The age discrimination laws protect those protect laws ageThe discrimination 12941.) § 17. (1) H IS is over the age of 40; 40; of age the over is A GE P A.Clausen Decl. ¶¶ D LAINTIFF ISCRIMINATION 14-15 old styles of music, rather up-to-date rather music, of styles ) Mr. Clausen worked well with well worked Clausen Mr. ) ’ S T ERMINATION than the plaintiff.” ( A.Clausen Decl.¶79 (2) C 14, 16, 36, 80-81 LAIMS suffered an adverse an suffered . (4) Govt. Code inference suffered Sandell ) Mr. ) , Livingston • Bakhtiar 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 (plurality); action— adverse the for reason legitimate a offer to purported employer defendant the where even discrimination, as actionable was ( law. the violation of upon years and only had two positive overall performance reviews. ( an not appropriate oneforsummary judgment andinsteadshouldbeheardby is ajury.” ( case this why “demonstrates deficiencies performance alleged plaintiff’s the to relevant peripheral facts. ( other with context in reviews positive two plaintiff’s the on relied heavily and evidence defendant’s thereafter. fluctuated ( years20 in and time first the for dropped sales Sales, of employmentVP the yearas first plaintiff’s of save for his last year of employment, which was mostly negative. someone just five years younger. The plaintiff’s performance evaluations were largely positive overall, supervisor gave, the statements false the and complaints supervisor’s the of nature subjective history,the performance performance record, was fired for performance deficiencies by a new supervisor. Based on the plaintiff’s Hosp Camino El v. same rationaleappliesheregiven Defendants’baselessconclusionsandassertionsaboutMr.Clausen. her forapartnershipposition,theplaintiffsued,alleging sex/gender discrimination.( wear jewelry.’” ( more femininely, talk more “macho” and “masculine” and told her that “to improve her chances for partnership, ... [she] should ‘walk PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP TO IN OPPOSITION AUTHORITIES & POINTS OF MEMORANDUM PLAINTIFF’S On review, the U.S. Supreme Court concluded that an employer who makes a decision predicated decision a makes employerwho an that concluded Court Supreme U.S. the review, On Sandell reversed summary judgment, in spite of the defendant’s in Similarly, Stereotyping aside, lies, particularly about In Price Waterhouse v.Hopkins preconceived stereotypes preconceived 17 Unlike Mr. Clausen, the see also id. also see Ibid Cheal a 0 erod mlye a frd for fired was employee old year 60 a Sandell, Id ., at 315-317.) (04 23 a.p.t 76 te litf, 6-erod ih n exemplary an with 61-year-old a plaintiff, the 736, Cal.App.4th 223 (2014) . , at 231-232 and 235.) (Emphasis added.) After her employer declined to nominate Id Id , at 258 (White, J., concurring); J., (White, 258 at , reversed, finding sufficientevidenceofpretext. ( ., at 250.) Thus, stereotypingThus, protected 250.) gender-roleat upon based ., characteristics ., at 304-305 and315.) at ., femininely —e.g. i.e. Sandell Sandell Deadline , the plaintiff’s allegedly poor interpersonal skills. ( skills. interpersonal poor allegedly plaintiff’s the , (1989) 490U.S.228,anemployer describeda female employee as , gender, age, race, disability—had acted discriminatorily and in and discriminatorily acted disability—had race, age, gender, , , dress more plaintiff had been with the defendant employer for just three even observed that the parties’ dispute over the factual issues poor performance focused on the multiple inconsistencies in the Sandell focusedonthemultipleinconsistencies in 18. femininely id. , 272-273 (O’Connor, J., concurring).) This concurring).) J., (O’Connor, 272-273 , Sandell , wear make-up , can also demonstrate pretext. In 17 or performance poor ( undisputed , 188 Cal.App.4th at 305-306.) Sandell, 188Cal.App.4that 306.) Ibid , at753-754.) , have her hair styled, and evidence that during the Id ., at319.) Id., at231-233.) n rpae by replaced and Id . at 250-252 at . Cheal Livingston • Bakhtiar 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 /// /// 1059.) ( retaliatory of conduct. course a alleged had plaintiff the because actions time-barred otherwise filed her DFEH complaint over a year after most of the acts occurred, liability was still imposed for the to comply with a discriminatory directive from her manager. ( occurred withinthelimitationsperiod.”( place ( [Citation].” ( applicable limitationsperiod.’[Citation].” the within falls that time in point a to up rights her or his violates andemployee the against operates its inception occurred prior to the limitations period ...[because] the continuing system of discrimination 1056.) A “‘systematic policy of discrimination is actionable even if to applicable is rule This 823-824.) at Cal.4th 26 FEHA related and violations—provided continuing that of series a in engaged has employer an when period limitations of at 74,internalquotesandcitationomitted.)(Emphasisadded.) personal protected a of basis the on person characteristic a against discriminate to employer an for possible favoring age discrimination. inference ( an supported substantially termination plaintiff’s the for reason stated its of falsification replaced by someone PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP TO IN OPPOSITION AUTHORITIES & POINTS OF MEMORANDUM PLAINTIFF’S In A continuing violation is established through “‘ Though Mr. Clausen’s claims are timely, the continuing violations doctrine tolls the one year statute In Begnal v. Canfield &Canfield v. Inc. Begnal Assoc., outside the limitations the outside Yanowitz .T 4. Ibid despite the fact that the person is replaced by someone with the same characteristic THAT , the plaintiff was subjected to a series of retaliatory acts for over a year, after she refused HE .) (Emphasis added.)Thismeansan employer can be held “liable for actions that take C M ONTINUING older IGHT at least one than her, resulting in a JNOV. In reversing, B Ibid period if these actions are sufficiently linked to unlawful conduct that conduct unlawful to linked sufficiently are actions these if period E U , at 76-77.) V
Deadline NTIMELY IOLATION of the violations occurred within the one-year period. ( (2000) 78 Cal.App.4th 66, an age discrimination plaintiff was ageanplaintiff discrimination 66, Cal.App.4th 78 (2000) Yanowitz . Morgan Begnal D OCTRINE WILL 19. all , 36Cal.4 a seriesofrelatedactsagainstsingle individual recognized that “[i]t is both logically and practically , 88Cal.App.4that64.)(Emphasisadded.) FEHA causes of action. ( action. of causes FEHA th Ibid at1056.)(Emphasisadded.) S AVE ANY , at 1039-1040.) Although the plaintiff some or all Begnal FEHA of the events evidencing held that the employer’s Yanowitz
C LAIM , 36 Cal.4th at Cal.4th 36 , Richards .” ( Id Id., . at . .’ , Livingston • Bakhtiar 28 27 26 25 24 23 22 21 20 19 18 17 16 15 14 13 12 11 10 9 8 7 6 5 4 3 2 1 about allaccommodations thatFOX hadavailable. ( A.M. 11068(a); § C.C.R. (2 arose. accommodate and process interactive disabilityOnce hiswas 2017. 30, June on inquiry,” itisinappropriateforsummary judgment, making italsoinappropriatehere.( be futile.” ( any further efforts at informal conciliation to obtain reasonable accommodation or end harassment will of accommodation of process ongoing disability,” means “that an employer’s an statements and actions make clear to a of reasonable employee that context the in “‘[P]ermanence’ added.) (Emphasis occurred with reasonable frequency; failures to reasonably accommodate disability, may take a number of different forms [Citation]; kind are actions employer’sunlawful the if violation continuing a is ... disability a accommodate reasonably to failure persistent employer’s “an such, As added.) (Emphasis 823.) when the employee is on notice that further efforts to end the unlawful conduct will be in vain.” ( brought toanend, as by the employer’s cessation of such conduct orby theemployee’s resignation, or believes that hisorherrightsmayhavebeenviolated a constructive discharge, the statute of limitations begins to run disabled employee or engaging in disability harassment,andthiscourseofconduct a of accommodation reasonable refusing by FEHA the under conduct unlawful of course continuing at trial,theplaintiffwasallowedtorecoverdamages forthe plaintiff resigned and nearly a year after that, filed her DFEH complaint and brought suit. ( ( change.” to going was nothing and wall brick a “facing was she Cal.4th at 803-811.) When plaintiff complained about not being fully accommodated, a manager told her span of time, though there was evidence of the employer’s unwillingness to PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP TO IN OPPOSITION AUTHORITIES & POINTS OF MEMORANDUM PLAINTIFF’S Here, Selman knew about Mr. Clausen’s condition on December 9, 2016 and Farhat learned about it a in employerengages an “when that held Court Supreme California the verdict, the upholding In In —recognizing ... that similar kinds of unlawful employer conduct, such as acts of harassment or harassment of acts as such conduct, employer unlawful of kinds similar that ... —recognizing , 178 Cal.App.4th at 464; Richards Ibid , the plaintiff sought and received numerous and extensive accommodations, during a wide , at 823.) (Emphasis added.) Since this analysis relating to permanence is a “fact specific
Soria Deadline , 5 Cal.App.5 (3) and known have not acquired a degree of permanence th , FOX’S , 20. at 600.) This included the duty to inform Mr. Clausen Prilliman, , but rather, , but continuing affirmative duty affirmative continuing entire 53 Cal.App.4that950.) not necessarily when the employee first either Ibid five-year period Prilliman , at 809.) Over a year later, the later, year a Over 809.) at , when the course of conduct is conduct course of the when fully (1) , 53 Cal.App.4th at 950; at Cal.App.4th 53 , comply. ( sufficiently . ( does not Id to engagethe to in ., at811.) .” ( Id., at824.) Id Richards .) However, Id. similar in similar constitute , at 823.) (2) Id have , 26 ., at I Nevertheless, FOX did nothing, never once engaging him in the interactive process and making no
2 efforts to inform him about what accommodations were even available. Instead, FOX abruptly terminated
J Mr. Clausen after 27 years based upon lies and subterfuge.
4 The fact that the season had ended is also of no impoft, as his employment continued. In fact, the day
5 that Mr. Clausen met with Farhat was for the recording of vocals for the upcoming season, after the
6 201612017 season had ended. (A.Clausen Decl. flf| ß-7a; Exh 7, pp. 1-7) Therefore, despite its
7 affirmative duty to act, Defendants chose to do nothing. Defendants' omissions thereby amounted to a
8 pattern of suffrciently similar conduct-the failure to engage in the interactive process and offer
9 accommodations-which did not reach permanence until Mr. Clausen was fired in August 2017.
10 5. Pr,arNunn's RnvIIINING CAUSES oF ACTION ARE DNRIVNUVE OF HIS
11 FEHA Cl¡¡tvts AND SuRvrvE F'oR THE SAME RnlsoNs.
12 Mr. Clausen's declaration amply covers all of Defendants' contentions. Even where a plaintiff fails
13 fo directly refute a defendant's evidence, the court "cannot ignore reasonable inferences that might be
14 drawn from the circumstances plaintiff did show, particularly at this stage of the case." (Jeffra,39 a l5 Cal.App.5th at 485.) (Emphasis added.)
t6 All of Mr. Clausen's remaining causes of action (failure to prevent, UCL and IIED), arise out of the
t7 same core facts underlying his FEHA claims.rs Mr. Clausen also re-submits herein his request for
18 discovery so as to be able to more fully oppose Defendants' Motion. t9 IV.
20 CONCLUSION
21 For the reasons stated herein,Deadline Defendants' instant anti-SLAPP Motion must be denied.
22 Crn nn or e¿ Krgse Ano 23 LrvrNcsroN . Bn 25 DATED: 26 BAKHTIAR, ATTORNEY FOR 27 ALF CLAUSEN 28 18 In Heru v. Nestle U.S.A., Inc. (2003) 109 Cal.App.4th 779, a plaintiff suing for age discrimination could state a UCL claim. (Ibid, at789.) 2 I PLAINTIFF'S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP