Judge: Peter A. Hernandez, Case: 24STCV17382, Date: 2025-06-04 Tentative Ruling
Case Number: 24STCV17382 Hearing Date: June 4, 2025 Dept: 34
Defendant Dr. David Filipp’s Motion to Strike portions
of Plaintiff’s complaint is DENIED.
I.
Background
On July 12,
2024, Plaintiff Mark Malonzo (“Plaintiff”) filed a complaint against Defendants
The Regents of the University of California, Michael Kaduce, and Dr. David Filipp
(“Defendants”) arising from Plaintiff’s employment with Defendants alleging
causes of action for:
1. Discrimination
in Violation of FEHA;
2. Harassment
in Violation of FEHA;
3. Retaliation
in Violation of FEHA;
4.
Failure to Prevent Discrimination, Harassment,
and Retaliation in Violation of FEHA; and
5. Defamation.
On September
3, 2024, Defendant The Regents of the University of California filed an answer.
On October
30, 2024, Defendant Michael Kaduce filed an answer.
On March 26,
2025, Defendant Dr. David Filipp filed this Motion to Strike. On May 21, 2025,
Plaintiff filed an opposition. As of June 27, 2025, no reply has been filed.
II.
Legal Standard
The
court may, upon a motion, or at any time in its discretion, and upon terms it
deems proper, strike any irrelevant, false, or improper matter inserted in any
pleading. (Code Civ. Proc., § 436(a).) The court may also strike all or any
part of any pleading not drawn or filed in conformity with the laws of this
state, a court rule, or an order of the court. (Id., § 436(b).) The
grounds for a motion to strike are that the pleading has irrelevant, false or
improper matter, or has not been drawn or filed in conformity with laws. (Id.,
§ 436.) The grounds for moving to strike must appear on the face of the
pleading or by way of judicial notice. (Id., § 437.) “When the defect
which justifies striking a complaint is capable of cure, the court should allow
leave to amend.” (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761,
768.)
III.
Discussion
Defendant Dr. David Filipp (“Filipp”) moves
to strike the following portions of Plaintiff’s complaint:
1.
Paragraph
8, page 2, lines 21-24: “…. in addition to fostering a generally hostile work
environment. For instance, Dr. Filipp openly speculated about the genitalia of
male students in the Center’s programs, and which female students were the
“most sexual” or “really freaky” in bed.”
2.
Paragraph
68, page 17:3-18:1: “In addition to the complaint of disability discrimination
by Kaduce, Plaintiff is aware of numerous formal complaints against Dr. Filipp.
Faculty members recounted inappropriate conduct including but not limited to:
·
Dr.
Filipp speculated at a faculty gathering about which students had “the biggest dick in the class,” noting
that the complainant could not “say [name omitted] because we all know he has a
big one.”
·
Dr.
Filipp speculated at the same gathering about which of the women in class were
“the most sexual in bed,” noting that he thought one female student “would be
really freaky in bed.”
·
During
a carpool with the faculty member, Dr. Filipp again speculated on male
students’ genitalia, opining that “I think I know who has the biggest dick. [Name
omitted.] It’s the tall, skinny guys for sure.”
·
Dr.
Filipp openly commented on the physical attributes on male and female
applicants for faculty roles, including encouraging comments about the
attractiveness of a female applicant and speculating that a male applicant
“doesn’t have the body [to be a rower],” because he had “small arms, small
pecs, and probably a small
dick.”
·
Dr.
Filipp made “disparaging comments” about a female faculty member’s “appearance,
weight, attire, and demeanor.” This faculty member stated that Dr. Filipp’s
constant criticism of her appearance made her feel unwelcome in the workplace.
Dr. Filipp also referred to this faculty member as “our faculty with special
needs.”
·
Dr.
Filipp complained openly that a faculty member took the day off work when his
wife was admitted to the ICU and placed on a ventilator.
·
When
an administrative staff member scheduled a meeting at a time Dr. Filipp did not
prefer, he stated, “I could have just punched her right in the uterus.””
3.
Paragraph
69, page 18, lines 2-3: "Dr. Filipp was permitted to voluntarily resign
rather than be subjected to discipline in response to the many claims of
harassment against him."
Filipp
argues that these allegations are irrelevant as they concern non-parties and
are not essential to Plaintiff’s claims against Filipp. (Motion, at p. 4.)
Filipp also argues that Plaintiff cannot submit evidence of “me too”
allegations concerning third parties to show the harassment of employees
outside of Plaintiff’s protected class as a disabled person. (Id., at p.
7, citing Pinter-Brown v. Regents of University of California (2020) 48 Cal.App.5th 55, 96.) Moreover, Filipp
argues that such “me too” allegations constitute impermissible character
evidence excluded under Evidence Code section 1101(a). (Id., at p. 8.)
Lastly, Filipp argues that “me too” evidence discovered by Plaintiff through
investigation and not by witnessing is inadmissible and cannot be used to show Defendants’
severe and pervasive conduct against Plaintiff. (Ibid, citing Brennan
v. Townsend & O’Leary Enterprises, Inc. (2011) 199 Cal.App.4th
1336, 1359.)
In
opposition, Plaintiff argues that such allegations describe Filipp’s broader
harassing behavior against others relevant to determine whether Defendant The Regents
of the University of California (“The Regents”) took adequate remedial measures
in response to other complaints regarding Filipp. (Opp., at pp. 4-5.) Plaintiff
contends that such determination is also directly relevant to whether The
Regents failed to address and prevent future harassment to Plaintiff. (Id.,
at p. 5.) Additionally, Plaintiff argues that the admissibility of such
allegations and Filipp’s citied cases do not show that the allegations are
improper or irrelevant on the face of a complaint. (Ibid.)
The court does not find that the
aforementioned allegations are irrelevant or improper. While the allegations
concern third-parties, they also concern The Regents’ awareness of Filipp’s allegedly
discriminating and harassing conduct towards Plaintiff and others. These
allegations, if true, would further support Plaintiff’s cause of action against
The Regents for failure to prevent discrimination, harassment, and retaliation.
Moreover, the court does not find that a determination of the admissibility of
such allegations is proper at this stage. The cases cited by Filipp are not
instructive to determine whether Plaintiff’s allegations are subject to strike.
Accordingly, Filipp’s motion is
denied.
IV.
Conclusion
Defendant Dr. David Filipp’s Motion to Strike portions of Plaintiff’s
complaint is DENIED.