Judge: H. Jay Ford, III, Case: 21SMCV01577, Date: 2023-04-04 Tentative Ruling

Case Number: 21SMCV01577    Hearing Date: April 4, 2023    Dept: O

  Case Name:  Klein v. Bernardo, et al.

SUBJECT:                 MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Defendant The Regents of the University of California

RESP. PARTY:         Plaintiff Gordon Klein

TENTATIVE RULING

            Defendant The Regents of the University of California’s Motion for Summary Judgment, or in the alternative, Summary Adjudication is DENIED.  Defendant fails to satisfy its initial burden as moving party. 

Plaintiff’s Evidentiary Objections

To Cato Declaration—

OVERRULE as to Objection Nos. 1-4

To Bernardo Declaration—

            Objection 1:  SUSTAIN as to “As such…collective bargaining agreement” and OVERRULE as to remaining.

            Objection 2-3, 6-9:  SUSTAIN

            Objection 4-5:  OVERRULE

To Simidjian Declaration—

Objection 1, 3, 4, :  SUSTAIN

Objection 2:  OVERRULE

Defendants’ Evidentiary Objections

To Klien Declaration-

            Objection 16-29, 51-52: OVERRULE.

To Madson Declaration:

            Objection 58-78: OVERRULE.

I. 1^st cause of action for breach of contract

            Plaintiff’s 1^st cause of action for breach of contract alleges the following breaches: 

·       Failing to maintain confidentiality in personnel matters, as evidenced by Defendant’s unwarranted, unnecessary and unlawful public disclosure of the “Confidential Personnel Action,” i.e. Berndardo’s decision to place Plaintiff on leave from campus and reassign his teaching duties to other instructors;

·       Failing to communicate the reason for the Confidential Personnel Action to Plaintiff as soon as possible;

·       Failing to timely and properly respond to the grievance filed by Plaintiff pursuant to the Employment Agreement;

·       Failing to honor Plaintiff’s contractual right to academic freedom;

·       Acting unlawfully and pretextually with regard to Plaintiff;

·       Failing to treat Plaintiff fairly and in good faith by depriving Plaintiff of the benefits of the Employment Agreement and by failing to do everything the Employment Agreement.

Defendant argues the undisputed evidence establishes that it did not breach the contract as alleged in ¶77 of the FAC.  In order to obtain summary adjudication of the first cause of action based on the element of breach, Defendant must negate each allegation of breach and fully dispose of the entire cause of action.  CCP §437c(c)(“The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”) and (f)(1)(“ A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”)

Defendant fails to negate each alleged breach.  Defendant fails to establish that the 6-4-20 email from Bernardo did not breach Article 10(B) of the UC-AFT MOU.  Article 10(B) limits “access to confidential and nonconfidential material in personnel files and personnel review records…and other confidential information shall be strictly limited to those representatives and employees who need access to information in the personnel file in the performance of their officially assigned duties, provided that such access is related to the purpose for which the information was acquired.  Members of the public and nongovernmental entities shall not have access to confidential personnel files as required by law.”  See Dec. of M. Simidjian, ¶8, Ex. 24. 

The 6-4-20 email disclosed that Plaintiff was placed on leave and all his courses reassigned to other lecturers.  Defendant submits the declaration of Michael Simidjian, director of UCLA’s Academic Personnel Office, as evidence that Plaintiff’s placement on leave and reassignment of his courses does not qualify as protected information under Article 10(B) of the UC-AFT MOU. 

However, Simidjian only testifies as to the meaning of “personnel review file” under APM-200-30 and that Klein’s administrative leave was not part of the “confidential” personnel review file.  See Dec. of M. Simidjian, ¶9.  Simidjian also testifies, “as aligned with general past practices, and based on my familiarity with the UC-AFT Agreement, it is not a violation of the Agreement to disclose that a lecturer is on leave and administrative leave is not ‘confidential’ in this sense.  Id.  Simidjian also testifies that “under the UC-AFT Agreement, paid administrative leave is not considered a disciplinary action.”  Id. at ¶13. 

Simidjian fails to negate Plaintiff’s allegation that the 6-2-20 email breached Defendant’s contractual duty to maintain the confidentiality of information in the personnel file, personnel review file and “other confidential information.”  Simidjian’s testimony lacks foundation and is an improper expert opinion.  Simidjian offers no foundation for his opinions regarding what the contracting parties defined or understood to be “confidential information,” nor does his testimony establish that the information disclosed by the 6-2-20 email did not qualify as information in Klein’s “personnel files,” as opposed to Klein’s “personal review files.” 

Defendant could only obtain summary adjudication of the breach of contract cause of action if it negated each alleged breach under the MOU.  At minimum, a triable issue of fact remains as to whether Defendant breached its contractual duty of confidentiality under the MOU.  The motion for summary judgment and/or adjudication as to the first cause of action based on the element of breach is DENIED.

Defendant also fails to negate the essential element of damage in the first cause of action for breach of contract.  Defendant relies on SSUMF Nos. 57-60 to negate Plaintiff’s allegation that he suffered damages as a result of the various breaches alleged in ¶77.  None of these facts or the evidence in support thereof negate Plaintiff’s allegation that he suffered damages as a result of the contractual breaches alleged in ¶77. 

Klein’s allegation that he began losing clients of his expert witness practice before Bernardo sent his 6-4-20 email is not irreconcilable with his allegation that Defendant’s breaches caused him damage.  Likewise, Klein’s failure to review analysis regarding the impact of COVID does not negate Klein’s allegation of damage.  Finally, the mere fact that no one explicitly said to him that they were withdrawing their business due to UCLA’s statements does not negate the allegation of damage. 

Klein alleges multiple breaches in ¶77 and SSUMF Nos. 57-60 only address the allegation that Defendant breached its contractual duty of confidentiality.  SSUMF Nos. 57-60 do not address whether the other breaches may have caused Klein’s alleged damages.

In addition, even if Klein’s damages were attributable to other causes, this would not establish that Regents’ alleged breaches did not contribute to those damages.  At best, Defendant submits other potential causes of Klein’s damages.  Triable issues of fact still remain as whether Plaintiff’s damages are attributable in whole or in part to Defendant’s alleged breaches.  Defendant Regent’s Motion for Summary Judgment or in the alternative, Summary Adjudication of the 1^st cause of action for breach of contract is DENIED.

II.  4^th cause of action for retaliation under Labor Code §1102.5(c)

Pursuant to Labor Code §1102.5(c), “[a]n employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.” 

A.  Plaintiff’s allegations of retaliation per Labor Code §1102.5(c), the prior ruling on SLAPP and Defendant’s burden on summary judgment

Plaintiff alleges Defendants retaliated against him, because Plaintiff refused to discriminate or grant preferential treatment to his students on the basis of race, which violates Article 1, Section 31(a) of the California Constitution and the rules and regulations of UCLA.  See FAC, ¶97.  Plaintiff’s remaining allegations of retaliation after Regents’ SLAPP motion are (1) “placing Plaintiff on administrative leave and relieving Plaintiff of his teaching duties in bad faith without any legal basis and prior to a thorough investigation”; (2) “by designating an administrator to monitor and censor Plaintiff’s outbound emails”; and (3) “by denying Plaintiff a merit pay raise for the Academic Year Ending June 2022, among other actions.”  Id. at 98.

Plaintiff incorrectly states that the Court previously found in connection with Defendants’ SLAPP motion that he submitted prima facie evidence in support of his Labor Code §1102.5(c) cause of action.  The Court did not make such a finding. The Court granted both Regents and Bernardo’s SLAPP Motion based on Plaintiff’s (1) failure to state a legally sufficient claim against Bernardo and (2) failure to submit any evidence that Regents retaliated against him because of his refusal to grant accommodations to African-American students, as opposed to the content and tone of Plaintiff’s June 2, 2020 email. 

On the second step of SLAPP, Plaintiff failed to establish each and every element of a Labor Code §1102.5(c) claim, including a showing that the Protected Conduct was an adverse employment action.  Plaintiff also failed to cite to Labor Code §1102.6 or Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718, which was issued in January 2022, two months before Plaintiff filed his opposition to the SLAPP.  Lawson clarified the respective burdens of an employee and an employer on a Labor Code §1102.5 claim and held that the McDonnel Douglas test applicable to FEHA retaliation claims does not apply to Labor Code §1102.5 claims. 

Here, as the moving party on summary judgment, Defendant Regents has the initial burden of negating an essential element of Plaintiff’s Labor Code §1102.5(c) claim or presenting an affirmative defense that bars Plaintiff’s cause of action as a matter of law.  Unless Defendant satisfies this initial burden, the burden does not shift to Plaintiff to raise a triable issue of fact.  Mosley v. Pacific Specialty Insurance Company (2020) 49 Cal.App.5th 417, 434–435 (landlord’s failure to address issue of whether they were aware of their tenant’s marijuana growing operation was not grounds to grant summary judgment where moving party failed to satisfy its initial burden as to the issue); Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086-1087 (court cannot grant summary judgment based merely on lack of opposition; court must first determine if the moving party has satisfied its burden).  

            In addition, the evidence and affidavits of the moving party are construed strictly, while those of the opponent are liberally read.  See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 100.  “All doubts as to the propriety of granting the motion (whether there is any issue of material fact [Code of Civil Procedure] § 437c) are to be resolved in favor of the party opposing the motion (i.e., a denial of summary judgment).”  Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.  

B.  Defendant fails to establish affirmative defense based on failure to exhaust administrative remedies

Defendant moves for summary adjudication of the 4^th cause of action for retaliation based on Plaintiff’s failure to exhaust administrative remedies.  Defendant relies on Campbell v. Regents of Univ. of Ca. (2005) 35 Cal.4^th 311, 321 as support for this argument.  Campbell held a complainant under Labor Code §1102.5 was required to exhaust administrative remedies prior to filing a civil suit, because the Labor Code was silent as to whether an employee had to exhaust administrative remedies before filing a lawsuit for violation of Labor Code §1102.5.  See Campbell, supra, 35 Cal.4^th at 333 (no “clear indication of legislative intent” to infer an exemption from the exhaustion rule).  However, in 2014, after Campbell was decided, the Legislature passed Labor Code §244, which states “An individual is not required to exhaust administrative remedies or procedures in order to bring a civil action under any provision of this code, unless that section under which the action is brought expressly requires exhaustion of an administrative remedy.” Lab. Code, § 244.  Based on Labor Code §244, Plaintiff is not required to exhaust administrative remedies prior to filing suit.  Defendant does not address the impact of Labor Code §244. 

More importantly, Defendant fails to establish UCLA’s Whistleblower Protection Policy (“WPP”) applies to Plaintiff’s claim of retaliation under Labor Code §1102.5(c).  The Whistleblower Protection Policy describes a complaint resolution process available to employees who believe they have been subject to an Adverse Personnel Action as a result of having made a Protected Disclosure.  See Defendant’s SSUMF No. 101, Dec. of Krause, 2:19-28, 3:1; Regents’ Exhibits, v. 9, Ex. 27. 

Defendant fails to establish that Plaintiff’s Labor Code §1102.5(c) claim is based on a “protected disclosure” under the WPP.  Plaintiff’s cause of action is based on Labor Code §1102.5(c)—refusal to engage in activity that violates state or federal law—not Labor Code §1102.5(b)—disclosure of an employer’s illegal or wrongful activity.  Plaintiff’s alleged protected conduct did not involve any disclosure of UCLA’s illegal or wrongful activity.  Plaintiff’s refusal to grant the request for race-based testing and grading accommodations does not satisfy the definition of “protected disclosure” under the WPP, nor does Defendant argue that it does.  “Protected disclosure” under the WPP is “a good faith communication...that discloses or demonstrates an intention to disclose information that may evidence (1) an improper governmental activity or (2) a condition that may significantly threaten the health and safety of employees or the public if the disclosure or intention to disclose was made for the purpose of remedying that condition.”  Regents’ Exhibits, v. 9, Ex. 27, WPP, Section II(C), p. 3. 

Defendant fails to establish that Plaintiff’s cause of action is barred by his failure to exhaust administrative remedies.  Defendant’s motion for summary judgment or adjudication of the 4^th cause of action for violation of Labor Code §1102.5(c) based on failure to exhaust administrative remedies is DENIED. 

C.  Defendant Regents fails to establish that its decision to place Plaintiff on paid administrative leave does not qualify as “retaliation” under Labor Code §1102.5(c) as an issue of law

Defendant argues Plaintiff’s placement on paid administrative leave is not considered disciplinary action under the MOU and therefore cannot qualify as a “contested action” under Labor Code §1102.5(c).  See Defendants’ Exhibits, v. 9, Ex. 20, Art. 30A.1, 13.  However, Labor Code §1102.5(c) prohibits an employer from retaliating against an employee for refusing to participate in unlawful activity.  Labor Code §1102.5(c) does not reference “contested action,” nor does it limit its application to instances where the employer’s actions against the employee qualify as “disciplinary action” under the employment agreement. 

Regents fails to cite any authority holding that retaliation for purposes of Labor Code §1102.5(c) must also meet the contractual definition of “disciplinary action” under the MOU, nor does Regents present any argument in support of such a requirement.  Applicable law requires a plaintiff alleging retaliation under Labor Code 1102.5 to establish that plaintiff suffered an “adverse employment action.”  See Francis v. City of Los Angeles (2022) 81 Cal.App.5^th 532, 540-541 (“To prove a claim of retaliation under this statute [Labor Code §1102(b)], the plaintiff must demonstrate that he or she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment.”); Nejadian v. County of Los Angeles (2019) 40 Cal.App.5^th 703, 719 (“the jury must then determine whether the plaintiff refused to participate in that activity and, if so, whether that refusal was a contributing factor in the defendant's decision to impose an adverse employment action on the plaintiff”)(emphasis added); BAJI 11.49.01, Labor Code §1102.5(c) Retaliation (2016) (“4. Defendant…retaliated by subjecting [plaintiff] to an adverse employment action”; “The term, ‘adverse employment action’ means action by the employer [[and] [or] by the person acting on behalf of the employer] that causes a substantial and material adverse effect on the terms, conditions or privileges of the plaintiff's employment”).  Regents does not address whether placing Klein on paid administrative leave qualifies as “adverse employment action” under applicable law. 

D. Defendant Regents fails to establish that Plaintiff did not engage in protected activity merely because it was a student who requested his participation in an unlawful activity

Regents argues that Plaintiff cannot state a claim under Labor Code §1102.5(c), because it was a student who requested that Plaintiff engage in unlawful activity (race-based accommodations in violation of the California Constitution), not Regents.  Because the allegedly illegal request was by a student, Regents maintains Plaintiff’s refusal to agree to the request cannot be protected conduct under Labor Code §1102.5(c).  As Plaintiff argues, there is no language in subsection (c) limiting its application to instances where the employer is the person who requests the employee’s participation in unlawful activity.  Defendant Regents also fails to cite any authority interpreting subsection (c) in that way.

E. Regents fails to establish Plaintiff’s inability to establish by a preponderance of the evidence that his refusal to grant the race-based accommodations was a “contributing factor” to his placement on administrative leave

            i.  Law governing burdens on Labor Code §1102.5(c) claim

“In a civil action or administrative proceeding brought pursuant to Section 1102.5, once it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.”  Lab. C. §1102.6. 

“Section 1102.6 provides the governing framework for the presentation and evaluation of whistleblower retaliation claims brought under section 1102.5. First, it places the burden on the plaintiff to establish, by a preponderance of the evidence, that retaliation for an employee's protected activities was a contributing factor in a contested employment action. The plaintiff need not satisfy McDonnell Douglas in order to discharge this burden. Once the plaintiff has made the required showing, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity.”  Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718.

Section 1102.6 “explicitly imposes a higher burden of production, clear and convincing,” on the employer to establish that “it would have taken the action in question for legitimate, independent reasons even had plaintiff not engaged in the protected activity.”  Vataro v. County of Sacramento (2022) 79 Cal.App.5^th 367, 379.  “It is not enough…that an employer shows it had a legitimate, nondiscriminatory reason for the adverse employment action. Were that the standard, then an employer could satisfy its burden simply by showing it had one legitimate reason for its action, even if several illegitimate reasons principally motivated its decision.  But that is not the applicable standard here. Under section 1102.6, the employer must instead show ‘the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.’”  Id. 

Under Labor Code §1102.6, an employee need not show that the employer’s nonretaliatory reason for the employment action was pretextual.  See Lawson, supra, 12 Cal.5^th at 715-716.  “Even if the employer had a genuine, nonretaliatory reason for its adverse action, the plaintiff still carries the burden assigned by [Labor Code §1102.6] if it is shown that the employer also had at least one retaliatory reason that was a contributing factor in the action.”  Id.

An employer satisfies its burden on a defense summary judgment if it presents evidence that would “require a reasonable factfinder to find it highly probable’” that the employment action would have occurred for legitimate, independent reasons even if the employee had not engaged in the protected conduct under Labor Code §1102.5.  See Vataro, supra, 79 Cal.App.5^th at 386 (employer satisfied its burden on summary judgment of Labor Code §1102.5(b) claim with undisputed evidence that employee had been insubordinate, disrespectful and dishonest, including employee’s own concession that she was “difficult to work with, distant and unwilling to cooperate”)

ii.  Regents fails to establish as an issue of law that Plaintiff’s refusal to grant race-based grading and testing accommodations was not a “contributing factor” to his placement on administrative leave

Regents argues that Plaintiff cannot establish that his refusal to grant race-based grading and testing accommodations was a contributing factor to his placement on administrative leave.  Regents argues Plaintiff cannot establish this because “there was a legitimate, nonretaliatory reason for the contested employment action—Klein was placed on leave because of the inappropriate tone and racially insensitive remarks in his June 2 Email Exchange and the pending reviews of DPO and the Title IX Office, not because of his alleged refusal to grade Black students more favorably.”  See Memo of Points and Authorities ISO of Regents’ MSJ, 23:6-8. 

Regents’ presentation of legitimate, nonretaliatory reasons for placing Klein on administrative leave does not negate Plaintiff’s ability to demonstrate that his protected conduct was a “contributing factor” to the decision to place him on leave.  Under the “contributing factor” standard, Plaintiff is not required to demonstrate that the protected conduct was the only motivating factor in the alleged retaliatory conduct.  As explained in Lawson, “[e]ven if the employer had a genuine, nonretaliatory reason for its adverse action, the plaintiff still carries the burden assigned by [Labor Code §1102.6] if it is shown that the employer also had at least one retaliatory reason that was a contributing factor in the action.”  Id.  The mere fact that Regents may have had legitimate reasons to place Plaintiff on leave does not establish Plaintiff’s inability to establish that the protected conduct was a “contributing factor.” 

Regents fails to provide any briefing on how “contributing factor” is defined or weighed under Labor Code §1102.5(c).  It is clear, however, that the jury ordinarily determines whether the employee’s refusal to participate in unlawful activity was a contributing factor in the defendant employer’s decision to impose an adverse employment action on the employee.  See Nejadian v. County of Los Angeles (2019) 40 Cal.App.5^th 703, 719 (whether requested activity “actually would result in a violation or noncompliance with a statute, rule or regulation” is “quintessentially a legal question,” but once that question is determined by the court, “the jury must then determine whether the plaintiff refused to participate in that activity and, if so, whether that refusal was a contributing factor in the defendant's decision to impose an adverse employment action on the plaintiff”).  It is also clear that “contributing factor” is distinct and less demanding than “sole reason or factor” or “significant factor.” 

Reasonable minds could conclude based on the Regents’ evidence that Plaintiff’s refusal to grant the requested race-based accommodations was a contributing factor to Berndardo’s decision to place him on administrative leave.  Bernardo admits that he placed Plaintiff on leave because of Plaintiff’s 6-2-20 Response Email to student Giovanny, although he maintains his decision was based solely on the tone of the email and not the refusal to grant the request.  See Dec. of A. Bernardo, ¶¶8-9, 16; see also Defendants’ Ex. 11, UCLA’s Letter to FIRE dated 6-19-20.  Bernardo made the decision to place Klein on leave on 6-3-20, the day after the offending email was sent.  Id. at ¶17.  The entire purpose and subject matter of the email was rejection of Giovanny’s request for race-based accommodations during the final exam period.  A reasonable trier of fact could infer that the purpose of the email—rejecting the request—was a contributing factor to Bernardo’s decision to place Plaintiff on leave.  The timing alone would support a reasonable inference that the email was a contributing factor to Bernardo’s decision to place Plaintiff on leave.  See e.g. Van Asdale v. International Game Tech. (9th Cir. 2009) 577 F3d 989, 1003 (“causation can be inferred from timing alone where an adverse employment action follows on the heels of a protected activity”)(interpreting “contributing factor” element of retaliation claim under 29 CFR §1980.104(e)(1)(iv)).  Regents presents circumstantial evidence supporting a reasonable inference that Plaintiff’s decision to refuse the request for accommodation was a contributing factor in Bernardo’s decision to place him on administrative leave. 

In addition, according to Michael Simidjian, he advised both the Interim Director of Academic Affairs (Susan Murray) and the Faculty Chairman and Deputy Dean of Academic Affairs (Professor Sood) “not to take any action yet on June 3, 2020 because discussions with DPO and Title IX were ongoing.”  See Dec. of M. Simidjian, ¶12.  Simidjian specifically told Sood not to place Klein on administrative leave on 6-3-20 “because the matter remained under review and further discussion was first needed.”  Id. at ¶11.  Simidjian’s testimony that later. “it was deemed that Klein could be placed on temporary leave” is inadmissible as lacking in foundation.  He fails to provide any details as to the discussions that led to this conclusion and when this conclusion was reached or relayed to Bernardo.  Despite the admonition to Sood and Murray that Klein not be placed on leave on 6-3-20, Bernardo issued a notice of leave on that date.  See Dec. of A. Bernardo, ¶17. 

Defendant does not move for summary judgment or adjudication based on a “clear and convincing” showing that “the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.”  None of the issues identified in the notice of motion is based on this language of Section 1102.6, nor does Defendant argue it in the memo of points and authorities. 

However, if Defendant should claim that it was moving for summary judgment on this basis, the evidence presented does not satisfy the very high burden of production placed on an employer under Labor Code §1102.5(c) once an employee establishes that the protected conduct was a contributing factor.  An employer satisfies its burden on a defense summary judgment if it presents evidence that would “require a reasonable factfinder to find it highly probable’” that the employment action would have occurred for legitimate, independent reasons even if the employee had not engaged in the protected conduct under Labor Code §1102.5.  See Vataro, supra, 79 Cal.App.5^th at 386 (employer satisfied its burden on summary judgment of Labor Code §1102.5(b) claim with undisputed evidence that employee had been insubordinate, disrespectful and dishonest, including employee’s own concession that she was “difficult to work with, distant and unwilling to cooperate”).

Defendant Regents’ evidence does not “require” the trier of fact to find that Klein would have been placed on administrative leave even if he had not declined to implement the race-based accommodations.  Id.  At best, Regents’ evidence demonstrates that there may have been legitimate, nonretaliatory reasons cited for the adverse employment action.  Regents was required to demonstrate by clear and convincing evidence that Klein would have been placed on leave “independent” of his refusal to grant the requested accommodation.  Simply presenting legitimate, nonretaliatory reasons for the adverse employment action is “not enough.”  Vataro, supra, 79 Cal.App.5^th at 379. 

According to Defendant Regents, Klein admitted at deposition that he was not placed on leave due to his refusal to implement a race-based accommodation.  See Regents’ SSUMF No. 141; Defendants’ Exhibits, V. 1, Ex. 1, Klein Depo., 346:11-16.  Regents mischaracterize the deposition testimony.  Klein was presented with an exhibit at deposition which stated that he was “not placed on leave due to a refusal to alter final exam schedules or grading policies for black students.”  Id.  Klein responded the statement was “accurate” as a “literal statement,” but he went on the explain that he believed he was “placed on leave for my refusal to adopt policies and agree with policies that violate the California Constitution and favor the giving of preferential treatment.”  Id.  Klein’s testimony is far from an unequivocal admission that Bernardo did not place him on administrative leave for refusing to grant the student’s request for race based accommodations.

Triable issues of fact remain as to whether Klein was placed on administrative leave due to his refusal to grant race-based testing and grading accommodations in response to Giovanny’s request.  Defendant Regent’s Motion for Summary Judgment or Adjudication of the 4^th cause of action for retaliation under Labor Code §1102.5(c) is DENIED. 

            F.  Adverse employment actions based on censoring of emails and denial of merit based pay increase

            Plaintiff also alleges in the 4^th cause of action that he suffered retaliation based on the appointment of a censor of his emails and denial of a merit-based pay raise.  Defendant Regents moves for summary adjudication of the 4^th cause of action based these two adverse employment actions. 

However, Plaintiff’s 4^th cause of action is also based on Regents’ placement of Plaintiff on administrative leave.  Triable issues of fact clearly remain as to that adverse employment action.  Summary adjudication of the 4^th cause of action must therefore be denied, regardless of Regents’ showing on the other two categories of adverse employment action.  Summary adjudication can only be granted as to a cause of action if it would fully dispose of that cause of action.  CCP §437c(f)(1).  The Court therefore does not reach the merits of Defendant’s showing on the 4^th cause of action as to the alleged appointment of a censor over Plaintiff’s emails and denial of the pay raise. 

 Case Name:  Klein v. Bernardo, et al.

SUBJECT:                 MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

MOVING PARTY:   Defendant Antonio Bernardo

RESP. PARTY:         Plaintiff Gordon Klein

TENTATIVE RULING

             Defendant Antonio Bernardo’s Motion for Summary Judgment, or in the alternative, Summary Adjudication is DENIED.  Defendant fails to satisfy its initial burden as moving party. 

Plaintiff’s Evidentiary Objections

To Cato Declaration—

OVERRULE as to Objection Nos. 1-4

To Bernardo Declaration—

            Objection 1:  SUSTAIN as to “As such…collective bargaining agreement” and OVERRULE as to remaining.

            Objection 2-3, 6-9:  SUSTAIN

            Objection 4-5:  OVERRULE

To Simidjian Declaration—

Objection 1, 3, 4, :  SUSTAIN

Objection 2:  OVERRULE

Defendants’ Evidentiary Objections

To Klien Declaration-

            Objection 16-29, 51-52: OVERRULE.

To Madson Declaration:

            Objection 58-78: OVERRULE.

I. Triable issues of fact remain as to the 3^rd c/a for false light

The elements of a false light claim are: (1) defendant publicly disclosed information or material that showed plaintiff in a false light; (2) that the false light created by the disclosure would be highly offensive to a reasonable person in plaintiff’s position; (3) in the case of a private person, defendant was negligent in determining the truth of the information or whether a false impression would be created by its disclosure; (4) that plaintiff was harmed or plaintiff sustained harm to his property, business, profession, or occupation; and (5) that defendant’s conduct .  See CACI 1802. 

“Defamation requires a publication that is false, defamatory, unprivileged, and has a tendency to injure or cause special damage.  To establish a false light invasion of privacy claim, [plaintiff] must meet the same requirements.”  Hawran v. Hixson (2012) 209 Cal.App.4th 256, 277. 

“In many cases to which the rule stated here applies, the publicity given to the plaintiff is defamatory, so that he would have an action for libel or slander.  In such a case the action for invasion of privacy will afford an alternative or additional remedy, and the plaintiff can proceed upon either theory, or both, although he can have but one recovery for a single instance of publicity.  However, it is not necessary that the plaintiff be defamed: It is enough that he is given unreasonable and highly objectionable publicity that attributes to him characteristics, conduct or beliefs that are false, and so is placed before the public in a false position.”  5 Witkin, Summary (11^th ed. 2021), Torts §781.

A “false light” claim, like libel, exposes a person to hatred, contempt, ridicule, or obloquy and assumes the audience will recognize it as such.  See M.G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623, 636.  A “false light” cause of action is in substance equivalent to a libel claim.  See Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1264 (defendant’s statement that he broke off relationship with plaintiff because she had an abortion did not expose plaintiff to ‘hatred, contempt, ridicule, or obloquy’). 

            A. Bernardo fails to negate any essential element of Plaintiff’s 3^rd cause of action for false light

i.  Reasonable trier of fact could find that 6-4-20 email declared or implied provably false assertion of fact

As Klein points out, the Court previously found that, based on the email and the evidence presented in connection with the SLAPP motion, Plaintiff established a prima facie case of false light.  As the Court explained in the prior SLAPP motion, a reasonable trier of fact could find that Bernardo’s 6-4-20 email implied multiple provably false assertions of fact, most significantly that Klein was placed on leave as a disciplinary measure.  “[T]he dispositive question is whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.  See Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385 (discussing defamation).

A reasonable fact finder could determine that the June 4, 2020 email implied that Plaintiff’s placement on administrative leave was disciplinary action for violating the identified “core principles” of UCLA.  Implying that Plaintiff’s administrative leave was a form of disciplinary action for his June 2, 2020 exchange or any alleged violation of UCLA’s core principles was false.  Bernardo testifies that he placed Plaintiff on the administrative leave “to allow UCLA time to review the allegations regarding his behavior and to determine whether Klein’s conduct violated the Faculty Code of Conduct.”  See Dec. of A. Bernardo, ¶17.  Bernardo represents in his MSJ that he did not have unilateral authority to issue discipline.  See Memo of Points and Authorities ISO of Bernardo’s MSJ, 18:13.  Simidjian further confirms that Klein’s administrative leave was not disciplinary action under the MOU.  See Bernardo’s SSUMF No. 50; Dec of Simidjian, 5:5-6. 

In fact, UCLA’s Title IX Office and DPO chose not to pursue any formal investigation into Klein’s actions.  See Dec. of A. Bernardo, ¶¶31-32; Bernardo’s SSUMF NO. 36; Dec. of L. Hsu, 5:9-16, Ex. 18.  Based on Bernardo’s own evidence in support of the SLAPP and the MSJ, UCLA never formally investigated Plaintiff for any wrongdoing or violation of any UCLA codes of conduct or policies, Plaintiff was never found guilty of any violations and Plaintiff never suffered any formal disciplinary action for his June 2, 2020 email exchange. 

Bernardo maintains his email was not false, because Bernardo believed Klein’s 6-2-20 email violated the Faculty Code of Conduct (APM 15).  Bernardo also dedicates a large portion of the background section of his motion to the other complaints and information received about Klein after his 6-2-20 email exchange was posted on social media.  This additional information included a screenshot of an email between Klein and a student dated 3-14-20, in which Klein jokingly refers to the student as his “favorite,” then goes on to indicate that several other students are his “favorite” and even “the guy who washes dishes at your house” was his favorite, postings on Reddit where an individual posted that she recalled Klein referring to one of his students as his favorite and the fact that Klein followed the Instagram page of one of his students.  See Dec. of Cato, ¶¶4-6. 

These allegations were forwarded to the DPO on 6-3-20.  Id. at ¶7. Again, none of this additional information resulted in a formal investigation, nor was Klein ever formally disciplined as a result of these incidents.

According to Bernardo, Klein was placed on leave “while these allegations could be investigated by the appropriate bodies.”  See Dec. of A. Bernardo, ¶16.  However, Bernardo’s 6-4-20 email does not refer to “allegations” or “accusations,” nor does it expressly indicate that the leave was prompted by the desire to allow a proper investigation by appropriate bodies and was not in any way punitive of disciplinary. 

Bernardo’s consideration of information other than Klein’s 6-2-20 email exchange when he placed Klein on administrative leave on 6-3-20 does not establish as an issue of law that the 6-4-20 email did not make or imply a provably false assertions of fact.  Even with evidence of this additional information, reasonable minds could still conclude based on the 6-4-20 email that Klein was placed on leave as a disciplinary or punitive measure for “troubling conduct” he engaged in, that he “unfairly treated or maligned” someone “because of identity” and it was necessary to place him on leave to provide a “safe, respectful and equitable environment in which students [could] effectively learn.”  See Defendant Bernardo’s Exhibits, v. 2, Ex. 9.

Triable issues of fact remain as to whether the 6-4-20 email declared or implied provable false assertions of fact.  Defendant’s Motion for Summary Judgment or Adjudication based on absence of a provably false statement of fact in the 6-4-20 email is DENIED. 

ii.  Reasonable trier of fact could find that Defendant possessed necessary scienter whether Klein is considered a limited public figure or a private individual

In connection with the SLAPP, the Court also found Plaintiff presented prima facie evidence that a reasonable trier of fact could find that Bernardo acted with the requisite scienter, whether Klein were a limited public figure (actual malice) or a private citizen (negligent in determining the truth of the information or whether a false impression would be created by its disclosure).  Bernardo’s evidence in support of summary judgment does not change the Court’s finding on SLAPP. 

Bernardo only testifies that he was genuinely outraged by Klein’s 6-2-20 email.  See Dec. of A. Bernardo, ¶8.  Bernardo admits that the purpose of the email was to “disavow” Plaintiff’s June 2, 2020 email exchange and to express his own personal viewpoint on the exchange.  See Dec. of A. Bernardo, ¶¶18-19.  Bernardo also testifies that the administrative leave was not disciplinary action but “to allow UCLA time to review the allegations regarding his behavior and determine whether Klein’s conduct violated the Faculty Code of Conduct.”  Id. at ¶17. 

Defendant also submits evidence that, on June 3, 2020, UCLA’s central Academic Personnel Office informed the Interim Director of the Academic Affairs Department and the Faculty Chairman and Deputy Dean of the Academic Affairs Department not to take any action yet on 6-3-20, because “the various offices were still trying to figure out what happened.”  See Dec. of M. Simidjian, ¶¶11-12.  Despite this, Bernardo placed Klein on leave on 6-3-20 and sent an email to the entire Anderson Community announcing his placement on leave on 6-4-20.

Despite these facts, Bernardo’s June 4, 2020 email did not indicate the email was motivated by his own personal views, that the email only reflected his personal views, as opposed to the views of UCLA, nor did it indicate that the leave was prompted by the need to investigate the issue before determining whether Plaintiff’s conduct warranted discipline.  Instead, Bernardo’s email juxtaposed announcement of Plaintiff’s leave with statements condemning certain conduct as unacceptable and encouraging anyone who is unfairly treated or maligned due to identity to report it.  Reasonable minds could conclude that Bernardo acted negligently, knowingly or recklessly in creating the false impression that Plaintiff had been disciplined for his June 2, 2020 email exchange, because it violated certain UCLA core principles. 

Moreover, as Klein argues, a reasonable trier of fact could conclude Bernardo’s email was malicious given that Bernardo admittedly placed Klein on leave in a state of anger and outrage in less than 24 hours after receiving the 6-2-20 email exchange.  Klein also persuasively argues that Bernardo’s consideration of tenuous allegations of sexual harassment or impropriety based on the “favorite” email and Reddit posts could itself be construed as evidence of malice.   Reasonable minds could conclude that the favorite email was obviously a joke even without context.  See Dec. of G. Klein, ¶14; Klein Exhibits, Ex. 180, Email from E. Volokh to Academic Freedom Committee dated 6-16-20; Ex. 69, Depo. of E. Volokh, 100:1-101:5.  Bernardo placed Klein on leave and sent the 6-4-20 email indicating that Klein had unqualifiedly “engaged in troubling conduct” based in part on other complaints, including the “favorite” email and the Reddit posts.  At that point, Bernardo only had accusations and there was no apparent context provided.  See Dec. of A. Bernardo, ¶¶13-14.

Triable issues of fact remain as to whether Bernardo acted with actual malice when he set the 6-4-20 email.  Defendant’s Motion for Summary Judgment or Adjudication based on lack of necessary scienter is DENIED. 

iii.  Triable issues of fact remain as to damages from the 6-4-20 email

The Court also found that Plaintiff submitted sufficient evidence of damage on the SLAPP motion.  Bernardo fails to negate Plaintiff’s allegations of damage or his ability to obtain evidence of such damages.  Bernardo raises the same arguments as the Regents.  For the reasons stated in connection with the Regents’ motion, triable issues of fact remain as to Klein’s damages.  Moreover, Bernardo’s SSUMF Nos. 126-138 on the element of damages do not actually address Klein’s damages or his ability to substantiate them. 

In addition, Klein submits evidence of his damages due to the 6-4-20 email.  Klein’s expert, Eric Madsen, testifies that Plaintiff suffered $17.072 million in economic damages due to Defendants’ Wrongful Acts, which includes Bernardo’s 6-4-20 email.  See Dec. of E. Madsen, ¶10; Plaintiff’s Ex. 361, Tab 63. 

Defendant Bernardo fails to negate any of the essential elements of Plaintiff’s false light claim.  Triable issues of fact therefore remain as to the elements of Plaintiff’s 3^rd cause of action for false light.  Defendant’s Motion for Summary Judgment or Adjudication based on negation of the elements of Plaintiff’s false light claim is DENIED. 

C.  Affirmative defense based on dominant public interest

Defendant Bernardo also moves for summary judgment or adjudication on grounds that the public interest served by his 6-4-20 email outweighs Plaintiff’s privacy interest.  However, Plaintiff’s 3^rd cause of action is for false light, not invasion of privacy.  Defendant’s cited authority applies the competing public interest defense to causes of action for invasion of privacy, not false light.  See Gill v. Curtis Pub. Co. (1952) 38 Cal.2d 273, 281-282 (reversing order granting judgment on pleadings of invasion of privacy claim where public interest in article using plaintiffs’ likenesses, names and information did not outweigh privacy right); Baughman v. State of California (1995) 38 Cal.App.4^th 182, 189-190 (“An invasion of privacy interest is not a violation of the state constitutional right to privacy if the invasion is justified by a competing interest”)(affirming judgment on the pleadings of invasion of privacy cause of action). 

Defendant fails to cite any authority applying a public interest defense to a sufficiently pled and substantiated claim for false light or invasion of privacy by false light.  A “false light” cause of action is in substance equivalent to a libel claim.  See Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1264.  Defendant’s Motion for Summary Judgment or Adjudication of the false light claim based on public interest is DENIED. 

II.  Triable issues of fact remain as to the 6^th c/a for negligent interference with prospective economic advantage

            Negligent interference with economic advantage requires plaintiff to allege (i) the existence of an economic relationship between the plaintiff and a third party which contained a reasonably probable future economic benefit or advantage to plaintiff and (ii) that defendant's negligent conduct interfered with plaintiff's relationship with that third party.  See Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153 (intentional interference); see North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 786 (negligent interference). 

            The plaintiff must also plead and prove acts that are wrongful, independent of the interference itself.  Id. at 1154, 1158-1159. “To establish a claim for interference with prospective economic advantage, therefore, a plaintiff must plead that the defendant engaged in an independently wrongful act. An act is not independently wrongful merely because defendant acted with an improper motive.” Id. at 1158. “[A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard.” Id. at 1159.

            “The tort of negligent interference with economic relationship arises only when the defendant owes the plaintiff a duty of care.  As Professor Witkin explained, among the criteria for establishing a duty of care is the ‘blameworthiness’ of the defendant's conduct.  For negligent interference, a defendant's conduct is blameworthy only if it was independently wrongful apart from the interference itself.”  Lange v. TIG Ins. Co. (1998) 68 Cal.App.4th 1179, 1185 (reversing judgment after jury trial in plaintiff’s favor on negligent interference with prospective advantage; defendant’s exercise of right to terminate contract was not independently wrongful).

            i.  Triable issues of fact remain as to whether Defendant engaged in independently wrongful conduct

            Defendant fails to establish that his 6-4-20 email does not qualify as independently wrongful conduct.  As discussed above, questions of fact remain as to whether Defendant is liable for false light.  Questions of fact therefore remain as to whether the 6-4-20 email qualifies as independently wrongful conduct.

            ii.  Triable issues of fact remain as to whether Defendant engaged in independently wrongful conduct

            Defendant also fails to negate Plaintiff’s allegation that he knew of Plaintiff’s economic relationships with third parties.  “If a party is otherwise entitled to summary judgment pursuant to this section, summary judgment shall not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the…if a material fact is an individual's state of mind, or lack thereof, and that fact is sought to be established solely by the individual's affirmation thereof.”  CCP §437c(e).  Defendant Bernardo’s only evidence that he lacked knowledge of Plaintiff’s third-party business relationships is his own declaration.  See Dec. of A. Bernardo, ¶34. 

            In addition, Plaintiff Klein submits evidence that Bernardo knew he served as an expert consultant to third parties. Bernardo admitted during deposition that he had a conversation with Klein regarding one of Klein’s expert consultancies.  See Klein’s Exhibits, Ex. 79, p. 975.  Klein also testifies that his biography on the UCLA website indicates he serves in various capacities outside the university, including as an expert witness.  See Dec. of G. Klein, ¶19.  Klein submitted information to UCLA highlighting his expert witness practice.  Id.  Klein also testifies that he had a conversation with Bernardo about his expert witness practice, which was separate from the one Bernardo testified to during deposition.  Id. at ¶20. 

Given these facts, the Court exercises its discretion to deny summary judgment or adjudication based on the element of knowledge on the 6^th cause of action for negligent interference per CCP §437c(e). Plaintiff also raises a triable issue of fact regarding Bernardo’s knowledge of his expert witness practice.

            i.  Triable issues of fact remain as to whether Plaintiff suffered damages as a result of Bernardo’s alleged negligent interference

Finally, Defendant Bernardo fails to negate Plaintiff’s allegations of damage.  Bernardo relies on the same argument and material facts identified in support of the damages element in the false light claim.  For the same reasons stated in connection with the damages element of the false light claim, triable issues of fact remain as to whether Plaintiff suffered damages as result of Bernardo’s negligent interference with his prospective economic advantages. 

Defendant’s Motion for Summary Judgment or Adjudication of the 6^th cause of action for negligent interference with prospective economic damages is DENIED. 

III. Punitive Damages

            “In the usual case, the question of whether the defendant's conduct will support an award of punitive damages is for the trier of fact, since the degree of punishment depends on the peculiar circumstances of each case.  But the issue may be resolved on summary judgment, giving due regard to the higher proof standard. While the clear and convincing evidentiary standard is a stringent one, it does not impose on a plaintiff the obligation to prove a case for punitive damages at summary judgment.  However, where the plaintiff's ultimate burden of proof will be by clear and convincing evidence, the higher standard of proof must be taken into account in ruling on a motion for summary judgment or summary adjudication, since if a plaintiff is to prevail on a claim for punitive damages, it will be necessary that the evidence presented meet the higher evidentiary standard.  Summary judgment on the issue of punitive damages is proper only when no reasonable jury could find the plaintiff's evidence to be clear and convincing proof of malice, fraud or oppression.”  Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th 757, 762; Pacific Gas and Electric Company v. Superior Court (2018) 24 Cal.App.5th 1150, 1158–1159.  The party moving for adjudication of a plaintiff’s punitive damages claim bears the initial burden of production.  See CCP §437c(f)(1) and (2); Johnson & Johnson v. Supr. Ct. (2011) 192 Cal.App.4^th 757, 761. 

            Triable issues of fact remain as to whether Defendant Bernardo acted with malice, fraud or oppression under CC §3294. Defendant failed to obtain adjudication of the false light claim.    Defendant has failed to meet his burden to show that no reasonable jury could find clear and convincing proof of malice, fraud or oppression based on both Defendant’s and Plaintiff’s evidence.  The motion for summary adjudication of the punitive damages claim is DENIED.