1 THOMAS V. GIRARDI, ESQ. (SBN: 36603) 2 1126 WILSHIRE BLVD. LOS ANGELES CALIFORNIA 90017 TEL: (213) 977-0211 FAX: (213) 481-1554 3 4 5 6 7 8 9 GIRARDI * KEESE EBBY S. BAKHTIAR, ESQ. (SBN: 215032) Livingston • Bakhtiar 3435 WILSHIRE BLVD., SUITE 1669 LOS ANGELES, CALIFORNIA 90010 TEL: (213) 632-1550 FAX: (213) 632-3100 Attorneys for Plaintiff: ALF CLAUSEN SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES – CENTRAL DISTRICT 10 CASE No.: 11 12 13 14 15 16 17 18 19 20 21 ) ) PLAINTIFF, ) ) vs. ) ) TWENTIETH CENTURY FOX ) TELEVISION, a Corporation headquartered in ) Los Angeles County; TWENTIETH ) CENTURY FOX FILM, a Corporation ) headquartered in Los Angeles County; ) TWENTY-FIRST CENTURY FOX, INC., a ) Corporation headquartered in Los Angeles ) County; FOX MUSIC, INC., a Corporation ) headquartered in Los Angeles County; ) GRACIE FILMS, a California Corporation; ) THE WALT DISNEY CO., a Corporation ) headquartered in Los Angeles County; and ) DOES 1 to 150, Inclusive, ) ) DEFENDANTS. ) 19STCV27373 ALF CLAUSEN, an Individual, PLAINTIFF’S OPPOSITION TO D E FE N D A N T S ’ A N T I - S L A PP SPECIAL MOTION TO STRIKE; MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT THEREOF; AND SUPPORTING DECLARATIONS [Filed Concurrently With Declarations of Ebby S. Bakhtiar, Scott Clausen, Alf Clausen and Birdie Bush; Plaintiff’s Separate Volume of Exhibits; and Plaintiff’s Evidentiary Objections.] Date Time Dept. Trial Date : : : : August 5, 2020 10:00a.m. 62 TBD [THE HON. JUDGE MICHAEL L. STERN, PRESIDING] 22 23 24 25 26 TO THIS HONORABLE COURT, DEFENDANTS AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD: 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 Plaintiff was a W-2 Employee, which gives rise to a r) 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 Plaintiffs termination does not bear a sufficiently substantial 2) 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 Plaintiff s job neither bestowed upon him the ultimate authority to 3) it afford him the ability to 10 determine Defendants' speech nor did 11 speak on Defendants' behalf as required by the anti-SLAPP statute F :E V 12 (Wilson v. C.N.N., Inc. (2019)7 Cal.5th 871,896); and co 14 ¿. 13 Plaintiff can easily demonstrate that his causes of action against 3) a z cF Defendants all have minimal merits. 15 U) 16 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, 20 Plaintiff s Evidentiary Objections; and all other matters that may 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. U Alf Clausen and Roberta "Birdie" Bush; Plaintiff s Separate Volume of Exhibits, be judicially noticed 23 Crn nn or er Kprsg 24 ANo 25 KHTIAR 26 2l DATED 2ò By EBBY S. BAKHTIAR, ATTORNEY FOR ALF CLAUS 28 2 PLAINTIFF'S OPPOSITION TO DBFENDANTS' ANTI-SLAPP MOTION as well as 1 TABLE OF CONTENTS PAGE 2 I. INTRODUCTION :................................01 II. STATEMENT OF RELEVANT FACTS :................................02 III. LEGAL ARGUMENTS :................................07 3 4 5 A. 6 DEFENDANTS HAVE NOT MET THEIR INITIAL BURDEN OF SHOWING THAT THE ADVERSE ACT WAS A SLAPP–PROTECTED ACTIVITY. :................................07 PLAINTIFF BURDEN AT THE SECOND STAGE OF THE ANALYSIS IS LOW. :................................10 7 8 B. 9 10 1. Livingston • Bakhtiar 11 12 THE TIMING OF PLAINTIFF’S TERMINATION ESTABLISHES THE MINIMAL MERIT OF HIS DISABILITY DISCRIMINATION, RETALIATION, WRONGFUL DISCHARGE AND FAILURE TO ACCOMMODATE CLAIMS. :................................11 DEFENDANTS’ LIES ABOUT THE REASON FOR PLAINTIFF’S TERMINATION ESTABLISH THE MINIMAL MERIT OF HIS DISABILITY DISCRIMINATION, RETALIATION, WRONGFUL DISCHARGE AND FAILURE TO ACCOMMODATE CLAIMS. :................................14 DEFENDANTS’ LIES ABOUT THE REASON FOR PLAINTIFF’S TERMINATION ESTABLISH THE MINIMAL MERIT OF HIS AGE DISCRIMINATION CLAIMS. :................................17 THE CONTINUING VIOLATION DOCTRINE WILL SAVE ANY FEHA CLAIM THAT MIGHT BE UNTIMELY. :................................19 PLAINTIFF’S REMAINING CAUSES OF ACTION ARE DERIVATIVE OF HIS FEHA CLAIMS AND SURVIVE FOR THE SAME REASONS. :................................21 13 2. 14 15 16 17 3. 18 19 20 4. 21 22 23 5. 24 25 IV. CONCLUSION :................................21 26 27 28 i. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP 1 TABLE OF AUTHORITIES 2 UNITED STATES SUPREME COURT DECISIONS 3 TITLE 4 Price Waterhouse v. Hopkins (1989) 490 U.S. 228 :............................................18 St. Mary’s Honor Center v. Hicks (1993) 509 U.S. 502 :............................................15 PAGE 5 6 7 NINTH CIRCUIT COURT OF APPEAL DECISION 8 TITLE 9 Coszalter v. City of Salem, 320 F.3d 968, (9th Cir. 2003) :............................................13 11 Flores v. City of Westminster, 873 F.3d 739, (9th Cir. 2017) :............................................13 12 Passantino v. J&J Consumer Prod., 212 F.3d 493, (9th Cir.2000) :............................................13 14 Ray v. Henderson, 217 F.3d 1234, (9th Cir.2000) :............................................13 15 Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, (9th Cir.2003) :............................................13 PAGE Livingston • Bakhtiar 10 13 16 CALIFORNIA SUPREME COURT DECISIONS 17 TITLE PAGE 18 19 FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133 :............................................09 20 Freeman v. Sup.Ct. (1955) 44 Cal.2d 533 :............................................14 22 Gantt v. Sentry Ins. (1992) 1 Cal.4th 1083 :............................................11 23 Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317 :....................................11, 13 25 Jeffra v. Cal. State Lottery (2019) 39 Cal.App.5th 471 :..............................02, 10, 21 26 Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057 :............................................02 Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798 :..............................03, 19, 20 21 24 27 28 ii. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP 1 TITLE 2 Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260 :............................................02 4 Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931 :....................................02, 10 5 Wilson v. C.N.N., Inc. (2019) 7 Cal.5th 871 :..................02, 07, 08, 09, 10 Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028 :..............................11, 15, 19 PAGE 3 6 7 8 9 CALIFORNIA APPELLATE COURT DECISIONS TITLE PAGE A.M. v. Albertsons (2009) 178 Cal.App.4th 455 :....................................12, 20 12 Begnal v. Canfield & Assoc., Inc. (2000) 78 Cal.App.4th 66 :............................................19 13 Brundage v. Hahn (1997) 57 Cal.App.4th 228 :............................................11 15 Cheal v. El Camino Hosp. (2014) 223 Cal.App.4th 736 :............................................18 16 Cloud v. Casey (1999) 76 Cal.App.4th 895 :............................................14 18 Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142 :............................................13 19 Davis v. Inter’l. Brotherhood of Elec. Workers (1971) 16 Cal.App.3d 686 :............................................14 21 Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d 590 :............................................13 22 Flait v. North Am. Watch Corp. (1992) 3 Cal.App.4th 467 :............................................13 24 Gelfo v. Lockheed Martin (2006) 140 Cal.App.4th 34 :....................................11, 12 25 George v. Cal. Unemp. Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475 :............................................13 27 Hernandez v. Rancho Santiago Cmty. College Dist. (2018) 22 Cal.App.5th 1187 :............................................11 28 Herr v. Nestle U.S.A., Inc. (2003) 109 Cal.App.4th 779 :............................................21 10 Livingston • Bakhtiar 11 14 17 20 23 26 iii. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP 1 TITLE 2 Hunter v. CBS (2013) 221 Cal.App.4th 1510 :............................................09 4 Jensen v. Wells Fargo (2000) 85 Cal.App.4th 245 :............................................11 5 Mamoui v. Trendwest Resort (2008) 165 Cal.App.4th 686 :....................................01, 15 7 Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174 :............................................03 8 McRae v. Dept. of Corrections (2006) 142 Cal.App.4th 377 :............................................13 10 Moore v. Regents of U.C. (2016) 248 Cal.App.4th 216 :............................................14 11 Morgan v. U.C. Regents (2000) 88 Cal.App.4th 52 :....................................13, 19 13 Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935 :....................................12, 20 14 Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028 :............................................13 16 Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297 :....................................17, 18 17 Schaffer v. San Francisco (2008) 168 Cal.App.4th 992 :............................................02 19 Soria v. Univision Radio (2016) 5 Cal.App.5th 570 :........................12, 14, 15, 20 20 Steele v. YOPB (2008) 162 Cal.App.4th 1241 :............................................12 Symmonds v. Mahoney (2019) 31 Cal.App.5th 1096 :............................................09 PAGE 3 6 Livingston • Bakhtiar 9 12 15 18 21 22 23 CALIFORNIA STATUTES & REGULATIONS TITLE PAGE 24 Cal. Civil Code § 2332 :............................................14 Cal. Govt. Code § 12926(m)(1)(B)(ii) :............................................11 Cal. Govt. Code § 12928 :............................................03 Cal. Govt. Code § 12940(a) :............................................17 25 26 27 28 iv. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP 1 TITLE 2 Cal. Govt. Code § 12940(m) :............................................12 3 Cal. Govt. Code § 12940(m)(2) :............................................12 4 Cal. Govt. Code § 12941 :............................................17 5 2 C.C.R. § 11065(l)(3) :............................................11 6 2 C.C.R. § 11068(a) :....................................12, 20 PAGE 7 8 9 10 Livingston • Bakhtiar 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. 3 INTRODUCTION 4 At the time of his termination, Alf Clausen had been a musician for nearly 60 years—50 of which 5 were spent as a composer in the film and television industries. During the last 27 years of his career, Mr. 6 Clausen was the composer for The Simpsons cartoon series, where he scored numerous episodes, 7 spanning every possible style of music ranging from classical to rap. (A.Clausen Decl. ¶¶ 6, 44-45) Recognized as one of the most accomplished, prolific and respected composers in the industry, Mr. 9 Clausen’s work on The Simpsons garnered a record 23 Emmy nominations, two Emmy wins, five Annie 10 awards and other honors. Not only was Mr. Clausen never criticized by any of the Defendants at any time 11 for anything, Matt Selman—who now swears under penalty of perjury that Mr. Clausen had routinely Livingston • Bakhtiar 8 12 failed to fulfill “[his] and others’ creative vision”—had this to say in December 2016: 13 14 15 (Exh. 6) 16 The above email is just the tip of the proverbial mountain of evidence showing that the alleged reasons 17 for Mr. Clausen’s termination are nothing but pretexts based on demonstrable lies.1 This poses a problem 18 for Defendants because “evidence that the employer’s claimed reason is false ... will tend to suggest that 19 the employer seeks to conceal the real reason for its actions, and this in turn may support an inference 20 that the real reason was unlawful.” (Mamoui v. Trendwest Resort (2008) 165 Cal.App.4th 686, 715.) 21 (Emphasis added.) When the foregoing principle is paired with the timing of Mr. Clausen’s 22 termination—a month after telling FOX he had Parkinson’s disease—the truth begins to emerge. 23 24 1 25 26 27 28 While Defendants contend otherwise, Mr. Clausen was not an independent contractor, but a W-2 employee of Twentieth Century Fox (“FOX”) (A.Clausen Decl. ¶¶ 11-12; Exh. 4); FOX’S own records and emails prove that it knew and allowed Mr. Clausen to regularly delegate the composition of music to other members of his team (A.Clausen Decl. ¶¶ 24-26, 46-63; S.Clausen ¶¶ 8-9, 16-18, 25-37; Exhs. 13); the producers also knew the music for each episode was “mocked-up” using computer software so that it could be reviewed and modified days before being recorded with an orchestra (A.Clausen Decl. ¶¶ 2931; S.Clausen Decl. ¶¶ 16-18, 51-53; Exh. 3, pp. 8, 14-17, 21; Exh. 5, pp. 1, 3, 6, 9-17); and, not only did Mr. Clausen have nothing to do with the decision to use an orchestra, he was amply able to create “synth” music of all kinds, including rap or hip hop, just as he had done on countless occasions in the past. (A.Clausen Decl. ¶¶ 2-6, 36-45; Exh. 6; S.Clausen Decl. ¶¶ 38-39) 1. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP 1 While Defendants loathe to admit it, the anti-SLAPP procedure was created “to insulate [defendants] 2 from having to litigate plainly unmeritorious lawsuits....” (Schaffer v. San Francisco (2008) 168 3 Cal.App.4th 992, 1004, italics in original, other emphasis added; Sweetwater Union High School Dist. 4 v. Gilbane Building Co. (2019) 6 Cal.5th 931, 945.) Therefore, to overcome Defendants’ Motion, all Mr. 5 Clausen need do is show that his “claims have at least ‘minimal merit.’” (Park v. Board of Trustees of 6 California State University (2017) 2 Cal.5th 1057, 1061.) (Emphasis added.) 7 As acknowledged by the California Supreme Court, “the bar sits lower, at a demonstration of 8 ‘minimal merit.’” (Wilson v. C.N.N., Inc. (2019) 7 Cal.5th 871, 891.) Only causes of action that arise 9 directly from protected speech and lacks minimal merit are subject to being stricken under the SLAPP 10 Livingston • Bakhtiar 11 statute. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278-279.) However, through Defendants’ own documents and subterfuge of lies, Mr. Clausen can demonstrate 12 that the decision to terminate his lengthy employment was not only unrelated to the furtherance of free 13 speech, but motivated by discriminatory animus, in an effort to avoid having to accommodate an old, 14 ailing employee. Since the lenient anti-SLAPP standards now require this Court to accept Mr. Clausen’s 15 evidence as true and draw all reasonable inferences therefrom in his favor, Defendants’ Motion must be 16 denied. (Wilson, 7 Cal.5th at 891; Jeffra v. Cal. State Lottery (2019) 39 Cal.App.5th 471, 485.) 17 II. 18 STATEMENT OF RELEVANT FACTS 19 Plaintiff Alf Clausen, now 79, has been a musician for the vast majority of his life. (A.Clausen Decl. 20 ¶ 2) Starting in or about 1967, Mr. Clausen moved to Los Angeles and began his career as a composer 21 and orchestrator in film and television. (A.Clausen Decl. ¶¶ 2-3) 22 Between 1967 and 1990, Mr. Clausen was the composer on a myriad of successful television shows, 23 including The Donny & Marie Show; The Mary Tyler Moore Hour; Fame; Little House on the Prairie; 24 Moonlighting; ALF; and many others. (A.Clausen Decl. ¶¶ 4-5) Mr. Clausen was also the composer of 25 many notable feature films, including Mr. Mom; Splash; Weird Science; Ferris Bueller’s Day Off; and 26 The Naked Gun, just to name a few. (A.Clausen Decl. ¶ 6) By 1990, Mr. Clausen was an established, 27 well-regarded, Emmy nominated composer who had developed an expansive musical palette, 28 encompassing all forms of music, ranging from classical to modern and more. (A.Clausen Decl. ¶ 6) 2. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP 1 In 1990, after the ALF television series ended, Mr. Clausen had a fateful meeting with Matt Groening, 2 the creator of The Simpsons series, during which he agreed to score one episode. (A.Clausen Decl. ¶¶ 3 7-8) That episode marked the beginning of a 27 year career (as a W-2 employee) that ended abruptly and 4 unexpectedly in August 2017.2 (A.Clausen Decl. ¶¶ 7-9, 11-13, 78-81; Exh. 4) During his time as the composer of The Simpsons, Mr. Clausen scored nearly all of the music for each 6 episode, spanning a wide spectrum of styles and genres from rock, R&B, rap/hip hop, electronic, disco, 7 country, big-band, choral, contemporary, etc. (A.Clausen Decl. ¶¶ 9, 44) As such, by 2017, Mr. Clausen 8 had amassed an extensive and comprehensive music library to draw from. (A.Clausen Decl. ¶¶ 9, 44) 9 As the composer for The Simpsons, Mr. Clausen won five Annie Awards; two Emmys in 1997 and 10 1998, both for Outstanding Individual Achievement in Music and Lyrics; and received an astounding 11 23 Emmy nominations. (A.Clausen Decl. ¶ 10) In 2011, after his 30th Emmy nomination, Mr. Clausen Livingston • Bakhtiar 5 12 was named the most-nominated composer in Emmy history. (A.Clausen Decl. ¶ 10) 13 While with the show, Mr. Clausen primarily reported to the producers, Al Jean and Matt Selman, as 14 well as Carol Farhat, the Vice President of Television Music Production & Administration at FOX.3 15 (A.Clausen Decl. ¶¶ 13-14, 15) Two weeks before an episode aired, its “showrunner,” either Al Jean or 16 Matt Selman, would meet with Mr. Clausen to give him very specific, detailed instructions as to every 17 substantive aspect of every piece of music (called a “cue”) that went into the episode, including how the 18 cue had to sound, the style of music, where in the episode the cue went, how the cue started and ended, 19 the subtext, the emotion the cue conveyed, etc. (A.Clausen Decl. ¶¶ 17-23, 29-31, 33-35; Bush Decl. 20 ¶¶ 8-10; S.Clausen Decl. ¶ 7) Each episode could contain 30 or more cues. (A.Clausen Decl. ¶ 19) 21 2 22 23 24 25 26 27 28 While Defendants insist that he was an independent contractor, Mr. Clausen was actually a W-2 employee of FOX. (A.Clausen Decl. ¶¶ 11-13; Exh. 4) Under California law, there exists “a rebuttable presumption that ‘employer,’ as defined by [the FEHA,] includes any person or entity identified as the employer on the employee’s Federal Form W 2 (Wage and Tax Statement)....” (Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 826, internal quotes omitted; Cal. Govt. Code § 12928.) 3 Gracie Films co-produces The Simpsons with FOX, and Mr. Clausen was controlled by both Gracie and FOX. (A.Clausen Decl. ¶¶ 13-14) California law recognizes that “[w]here an employer sends an employee to do work for another person, and both have the right to exercise certain powers of control over the employee, that employee may be held to have two employers—his original or ‘general’ employer and a second, the ‘special’ employer.’” (Mathieu v. Norrell Corp. (2004) 115 Cal.App.4th 1174, 1183, internal quotes omitted.) Under such circumstances, the employee may look to either or both employers for enforcement of rights under the FEHA. (Ibid, at 1184.) Regardless, since this Court denied Mr. Clausen’s request to open discovery, he is, at this early stage of the litigation, unable to fully explain the complete nature of the relationships between Gracie, FOX and the other Defendants herein. 3. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP 1 Thereafter, Mr. Clausen determined the time needed to score the episode by its deadline and would 2 divide the work between himself and his team. (A.Clausen Decl. ¶¶ 23-24) Since the score of an episode 3 had to be written within five to six days, Mr. Clausen routinely delegated the composition of some of the 4 music to his team, including his son Scott Clausen. (A.Clausen Decl. ¶¶ 18, 25-28, 46-63; S.Clausen 5 Decl. ¶¶ 9-14) As the composer, Mr. Clausen was responsible for overseeing the scoring of each episode, 6 not personally writing every piece of music that went into every episode. (A.Clausen Decl. ¶ 25) 7 It is undeniable that FOX knew Mr. Clausen delegated cues to his team, as evidenced by the “cue 8 sheets” it prepared for each episode.4 (A.Clausen Decl. ¶¶ 46-51; S.Clausen Decl. ¶¶ 25-31; Exhs. 1-2) 9 The cue sheets show that since at least 2009, hundreds of cues were composed or co-composed by other 10 members of Mr. Clausen’s team. (A.Clausen Decl. ¶¶ 49-63; S.Clausen Decl. ¶¶ 29-37; Exhs. 1-2) Livingston • Bakhtiar 11 Mr. Clausen had also engaged in numerous discussions with Al Jean, Matt Selman and Carol Farhat 12 about who, other than him, had composed or co-composed the cues of various episodes. (A.Clausen 13 Decl. ¶ 26) There are even emails dating back to 2008, showing that Al Jean, Matt Selman and Carol 14 Farhat knew Scott Clausen was composing cues. (S.Clausen Decl. ¶ 35; Exh. 3, pp. 1-4, 6-13, 17-27) 15 Moreover, every piece of music that went into an episode was written with computer software. 16 (A.Clausen Decl. ¶¶ 29-30; S.Clausen Decl. ¶¶ 16-18) The software generated a synthesized preview 17 of each cue called a “mockup.” (A.Clausen Decl. ¶ 29; S.Clausen Decl. ¶¶ 16-18) Mockups gave Mr. 18 Clausen the ability to make changes to any cue, days before the live recording session. (A.Clausen Decl. 19 ¶¶ 29-30; S.Clausen Decl. ¶¶ 16-18) Matt Selman and Al Jean—even James Brooks on 20 occasion—regularly received mockups, which they were able to change before the recorded session. 21 (A.Clausen Decl. ¶¶ 30-31; S.Clausen Decl. ¶¶ 16-18, 51-53; Exh. 3, pp. 5-12, 14-21; Exh. 5, pp. 1, 22 3, 6, 9-17) The showrunners could also make changes in post-production. (A.Clausen Decl. ¶ 35) 23 Notably, mockups could have easily been refined for broadcast, had the producers wanted to go that 24 route. (A.Clausen Decl. ¶ 42) However, the creator and producers of the show, not Mr. Clausen, had 25 originally decided to use a live orchestra for the music. (A.Clausen Decl. ¶¶ 39, 43) In fact, in the early 26 1990s, the producers explicitly instructed Mr. Clausen to remove a synthesizer and an electric piano that 27 he had incorporated into the orchestra. (A.Clausen Decl. ¶¶ 40-43) 28 4 Cue sheets are documents listing every cue in an episode and the cue’s composer or cocomposers. (A.Clausen Decl. ¶¶ 46-51; S.Clausen Decl. ¶¶ 25-31; Exhs. 1-2) Cue sheets are important since they are used to calculate royalties. (A.Clausen Decl. ¶¶ 46-48, 50; S.Clausen Decl. ¶ 26) 4. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP 1 As a result, Mr. Clausen only used synthesizers when a scene or episode required it, or when the 2 source music that was being parodied contained it. (A.Clausen Decl. ¶ 41) For instance, in 2007, Mr. 3 Clausen composed a parody episode of the television show 24, which contained only synth music. 4 (A.Clausen Decl. ¶ 41; S.Clausen Decl. ¶ 39) Therefore, Mr. Clausen never expressed any opposition 5 to synth music and was fully capable of creating it if the show’s hierarchy wanted it. (A.Clausen Decl. 6 ¶¶ 42-43; S.Clausen Decl. ¶ 38) By the same token, Mr. Clausen was equally capable of creating hip hop, rap and any other style of 8 music. (A.Clausen Decl. ¶¶ 6, 36, 44) Mr. Clausen had composed numerous rap and hip hop cues, 9 including the “Homerpalooza” episode of season 7, where the producers had him compose the hip hop 10 song “Insane in the Membrane,” by the rap group Cypress Hill, using an orchestra. (A.Clausen Decl. ¶ 11 45) In sum, after 50 years of composing music for films and television, there was no style of music that Livingston • Bakhtiar 7 12 was foreign to Mr. Clausen or that he was uncomfortable creating. (A.Clausen Decl. ¶¶ 6, 36, 44) 13 Indeed, Mr. Clausen’s awards and accolades underscore his competence, as does his 27 years as the 14 composer of The Simpsons—during which time no one ever criticized or complained about his work 15 performance or capabilities. (A.Clausen Decl. ¶¶ 10, 36-37; S.Clausen Decl. ¶ 24; Bush Decl. ¶ 13) 16 Even Matt Selman, who now attests to something different, expressed feeling honored to be part of Mr. 17 Clausen’s “orchestration entourage” in December 2016. (A.Clausen Decl. ¶¶ 37-38; Exh. 6) 18 Additionally, as the show’s composer, Mr. Clausen managed a budget and a team of music 19 professionals. (A.Clausen Decl. ¶¶ 14-15) Mr. Clausen reported to Carol Farhat, who not only 20 supervised the scoring of The Simpsons, but was in charge of overseeing all budgetary matters relating 21 to the music of the show. (A.Clausen Decl. ¶¶ 14, 16) Mr. Clausen routinely worked with Ms. Farhat 22 to meet all budgetary constraints and was never once criticized or given any negative feedback—by her 23 or anyone—regarding the budget or the cost of the show’s music. (A.Clausen Decl. ¶¶ 16, 36, 80-81) 24 Likewise, Mr. Clausen was never told by anyone that the music budget was too high or that FOX wanted 25 to transition away from an orchestra and into synth music in order to cut costs. (A.Clausen Decl. ¶ 79) 26 In 2013, Mr. Clausen was diagnosed with Parkinson’s disease. (A.Clausen Decl. ¶¶ 64-65) Although 27 he tried keeping his condition a secret, by the start of the 2016/2017 season, some of his symptoms could 28 no longer be concealed. (A.Clausen Decl. ¶¶ 66-69; S.Clausen ¶¶ 10, 40-47) 5. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP 1 In fact, by or about the prior season, between fall 2015 and May 2016,5 Mr. Clausen had begun 2 exhibiting overt signs of his illness. (S.Clausen ¶¶ 41-42) This included tremors in his hands and an 3 increasingly slower, guarded gait when walking. (S.Clausen ¶ 43; Bush Decl. ¶¶ 14-16) 4 Mr. Clausen’s personal assistant, Roberta “Birdie” Bush, also noticed the unmistakable changes in 5 his physical presentation, including a slow, guarded stride and intermittent tremors. (Bush Decl. ¶¶ 14- 6 16) On occasion, Mr. Clausen would was also observed stopping in his tracks—mid stride—as though 7 his legs had stopped cooperating with him. (Bush Decl. ¶ 17) On other occasions, his arm appeared to 8 stiffen and rise in the air outside of his control. (Bush Decl. ¶ 16) Starting in or about 2015, as Mr. Clausen started exhibiting symptoms, Scott Clausen perceived a 10 general sense of concern growing among colleagues and co-workers. (S.Clausen ¶ 46) By 2016, co- 11 workers were asking Scott Clausen if his father was “okay” and by the start of the 2016/2017 season, in Livingston • Bakhtiar 9 12 August 2016, Mr. Clausen was walking with a special cane and taking unusual rest breaks during some 13 of the recording sessions. (A.Clausen Decl. ¶ 68; S.Clausen ¶¶ 43, 45; Bush Decl. ¶ 15) 14 Significantly, in or about or about September 2016, Carol Farhat asked Scott Clausen to work on a 15 special 3D virtual reality project that Google was co-producing for the show, called the “VR Couch Gag.” 16 (S.Clausen ¶ 47) However, because the cost of this special project exceeded the season’s allotted budget, 17 Farhat demanded that Scott Clausen perform the work for a fraction of his normal rate. (S.Clausen ¶ 48) 18 When Scott protested, Farhat threatened him by saying: “with what’s going on with your dad, now’s not 19 the time to piss off the producers....” or words to that effect. (S.Clausen ¶ 48) Scott Clausen interpreted 20 Farhat’s comments to be in reference to the rumors about his father’s illness. (S.Clausen ¶¶ 48-50) 21 On or about December 9, 2016, Mr. Clausen was at a live recording session attended by Matt Selman. 22 (Bush Decl. ¶ 18) During a break, Mr. Clausen rose from his seat in such a manner that Selman asked: 23 “you doing okay Alf?” or words to that effect. (Bush Decl. ¶ 18) Mr. Clausen candidly replied: “I’m 24 doing pretty well given the situation; I’ve been diagnosed with Parkinson’s and it’s just slowing my legs 25 down.” (Bush Decl. ¶ 18; A.Clausen Decl. ¶¶ 71-72; Exh. 6) The following day, Selman emailed Mr. 26 Clausen about his Parkinson’s disease and in response, Mr. Clausen told Selman that he was also 27 experiencing excess fatigue associated with his condition. (A.Clausen Decl. ¶¶ 71-72; Exh. 6) 28 5 The television season began every August and ended in or about May of the following year. (S.Clausen Decl. ¶ 10; Bush Decl. ¶ 21) 6. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP 1 On June 30, 2017, over a month after the 2016/2017 season had ended, Mr. Clausen was scheduled 2 to oversee the recording of the vocals for six episodes that were going to air during the 2017/2018 season. 3 (A.Clausen Decl. ¶¶ 73-74; Exh 7, pp. 1-7) The day before the recording session, on June 29, 2017, Mr. 4 Clausen scheduled a meeting with Carol Farhat to confidentially discuss “something of significant 5 importance” that was unrelated to the show. (A.Clausen Decl. ¶¶ 75-76; Exh 7, p. 8) 6 On June 30, 2017, Mr. Clausen met with Farhat in her office and discussed his diagnosis with her.6 7 (A.Clausen Decl. ¶ 77; Bush Decl. ¶¶ 19-20) Right after, Mr. Clausen told Birdie Bush about his 8 disclosure to Farhat before starting the recording session. (Bush Decl. ¶¶ 19-20) Following his meeting with Farhat, Mr. Clausen expected to continue being the composer of the show. 10 (A.Clausen Decl. ¶ 77) While the physical manifestations of his illness were starting to show, Mr. 11 Clausen was still able to perform his job and intended to stay. (A.Clausen Decl. ¶¶ 69-70, 75, 82, 84) Livingston • Bakhtiar 9 12 However, on August 16, 2017, Richard Sakai of Gracie Films, notified Mr. Clausen that his 13 employment was terminated because FOX had decided to go in a “different direction.” (A.Clausen Decl. 14 ¶¶ 13, 78; S.Clausen Decl. ¶¶ 56-59; Bush Decl. ¶ 22) Mr. Clausen’s termination came just over a 15 month after he disclosed his diagnosis to Farhat. Worse yet, the show’s direction never changed.7 16 III. 17 LEGAL ARGUMENTS 18 19 A. DEFENDANTS HAVE NOT MET THEIR INITIAL BURDEN OF SHOWING THAT THE ADVERSE ACT WAS A SLAPP–PROTECTED ACTIVITY. 20 To meet the first of their two-step SLAPP burden, Defendants “must show that the complained-of 21 adverse action, in and of itself, is an act in furtherance of its speech or petitioning rights.” (Wilson, 7 22 Cal.5th at 890.) (Emphasis added.) The nexus between the adverse action and the protected activity 23 cannot be tangential. Rather, it must “bear[] a sufficiently substantial relationship to the organization’s 24 ability to speak....” (Ibid, at 894.) (Emphasis added) As the California Supreme Court in Wilson observed, 25 “[c]ases that fit that description are the exception, not the rule.” (Id., at 890.) 26 27 28 6 While Mr. Clausen did need some minor accommodations for his condition, after learning about his condition, Defendants neither engaged Mr. Clausen in the timely, good faith interactive process as required by the FEHA nor did they ever offer him any accommodations. (A.Clausen Decl. ¶¶ 82-83) 7 Mr. Clausen has watched The Simpsons since his termination and despite Sakai’s representation, the show’s music is still the exact same style and type as before. (A.Clausen Decl. ¶ 84) 7. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP 1 Nonetheless, in an effort to shoehorn Mr. Clausen’s action into meeting the limited scope of their 2 initial burden, Defendants mischaracterize his claims as being predicated upon “the show’s use of 3 Bleeding Fingers.” (See Motion, p. 14:21.) This is wrong. The core predicate for Mr. Clausen’s damages 4 is the termination of his employment. (See FAC at Exh. 8, ¶¶ 25-28) 5 In Wilson, a journalist who wrote and produced stories of public importance was fired by CNN after 6 an editor concluded that parts of an article he had drafted for publication were plagiarized. (Wilson, 7 7 Cal.5th at 882.) The plaintiff sued under the FEHA and CNN filed an anti-SLAPP Motion, arguing—as 8 Defendants do here—that all of its hiring and firing decisions were protected given the connection 9 between its news business and free speech. (Ibid, at 894.) However, the California Supreme Court rejected this proposition as untenably broad. (Id., at 894-895 11 and 896-897.) While Wilson ultimately found that CNN’s interest in combating plagiarism to preserve Livingston • Bakhtiar 10 12 the integrity of its reputation as a news agency was a protected activity for the purposes of its initial 13 SLAPP burden, it emphasized that “[n]ot every staffing decision a news organization makes—even with 14 respect to those who write, edit, or otherwise produce content—enjoys constitutional protection.” (Id., 15 at 896.) (Emphasis added.) 16 Wilson then went on to narrow the ambit of SLAPP-protected employment decisions made by media 17 organizations to just those involving the hiring or firing of “on-air” employees who speak “on behalf of” 18 the organization, as well as employees “who [are] vested with ultimate authority to determine a news 19 organization’s message....” (Id., at 896.) (Emphasis added.) Wilson reasoned that these employees 20 “might well have a substantial effect on the organization’s ability to speak on public issues, which is the 21 anti-SLAPP statute’s concern.” (Id.) (Emphasis added.) 22 23 24 25 26 27 Wilson further explained that: “[l]awsuits directed at influencing the selection of individuals who wield that type of ultimate authority could chill participation in the discussion of public issues, as surely as suits targeting the act of speaking itself. But not so with other employees in a newsroom who may contribute to, but lack ultimate say over, their employer’s speech.” 28 (Id.) (Emphasis added.) This is a critical distinction that Defendants overlook. 8. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP 1 Wilson thus embraces the rationale underlying Symmonds v. Mahoney (2019) 31 Cal.App.5th 1096 2 and Hunter v. CBS (2013) 221 Cal.App.4th 1510, but only because the employees at issue had sufficient 3 authority to either speak on behalf of their employer, or substantially effect their employer’s speech.8 4 While Defendants ignore the limitations imposed by Wilson, they are undeniable and must be applied. 5 Under the narrow substantial effect standard promulgated by Wilson, the termination of Mr. Clausen 6 can not be considered a SLAPP-protected activity. Like the plaintiff in Wilson, Mr. Clausen merely 7 contributed to Defendants’ speech, but lacked the ultimate authority to determine the speech. By contrast, all of the decision-making authority in connection with every aspect of an episode’s 9 music was held by the episode’s showrunner. (A.Clausen Decl. ¶¶ 17-23, 29-31, 33-35; Bush Decl. ¶¶ 10 8-10; S.Clausen Decl. ¶ 7) The showrunner dictated to Mr. Clausen exactly what the music had to sound 11 like, where it began and ended, how it began and ended, what style it had to be, its emotion, etc. Livingston • Bakhtiar 8 12 (A.Clausen Decl. ¶¶ 17-23, 29-31, 33-35; Bush Decl. ¶¶ 8-10; S.Clausen Decl. ¶ 7; see Jean Decl. ¶¶ 13 3-4; Selman Decl. ¶¶ 14) The showrunner received mockups of the music for approval days before the 14 recording session and would also make changes to the music during the post production “dub” session, 15 after it had been recorded. (A.Clausen Decl. ¶¶ 29-31, 35; S.Clausen Decl. ¶¶ 16-18, 51-53; Exh. 3, 16 pp. 8, 14-17, 21; Exh. 5, pp. 1, 3, 6, 9-17; see also Ledesma Decl. ¶ 5; Selman Decl. ¶¶ 16-18) 17 Furthermore, unlike the plaintiffs in Hunter and Symmonds, Mr. Clausen was neither an on-air 18 personality nor a live musician in a rock band. There is also no evidence that The Simpsons’ popularity 19 is attributable to its music the way that Eddie Money’s popularity is. Nor is there any evidence that 20 viewers watch The Simpsons for the content of its music—again, like Eddie Money’s fans do. Simply 21 said, the music accompanying The Simpsons is just “too tenuously tethered to the issues of public interest 22 ... and thus too remotely connected to the public conversation about those issues to merit protection ....” 23 (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 144-145.) 24 25 26 27 28 8 In Hunter, the plaintiff sued for age and gender discrimination after an attractive young woman was hired to fill a vacant weather anchor position instead of him. Hunter held that the choice of selecting an on-air weather anchor was akin to a casting decision, made in the furtherance of the organization’s exercise of free speech. (Hunter, 221 Cal.App.4th at 1527; Wilson, 7 Cal.5th at 896.) Similarly, in Symmonds, Eddie Money’s former drummer sued him for FEHA violations and wrongful termination. Eddie Money filed an anti-SLAPP Motion and presented evidence demonstrating that he was a popular musician with hit songs and millions of records sold. (Symmonds, 31 Cal.App.5th 1096, at 1101.) The Symmonds court concluded that a singer’s selection of live musicians who play with him on stage—akin to the casting decision in Hunter—was protected speech. (Ibid, at 1106.) 9. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP 1 B. PLAINTIFF’S BURDEN AT THE SECOND STAGE OF THE ANALYSIS IS LOW. 2 “In the relatively unusual case in which the discrimination or retaliation defendant does meet its 3 first-step burden of showing that its challenged actions qualify as protected activity, the burden shifts to 4 the plaintiff.” (Wilson, 7 Cal.5th 891.) (Emphasis added.) However, “the plaintiff’s second-step burden 5 is a limited one.” (Ibid.) “The plaintiff need not prove her case to the court [Citation]; the bar sits lower, 6 at a demonstration of ‘minimal merit’ [Citation].” (Id.) (Emphasis added.) “At this stage, ‘[t]he court does not weigh evidence or resolve conflicting factual claims.’” (Id., 8 quoting Sweetwater, 6 Cal.5th at 940.) Instead, the court “accepts the plaintiff’s evidence as true, and 9 evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law.’ 10 [Citation].” (Id.) (Emphasis added.) Where a plaintiff fails to directly refute a defendant’s evidence, the 11 court “cannot ignore reasonable inferences that might be drawn from the circumstances plaintiff did Livingston • Bakhtiar 7 12 show, particularly at this stage of the case.” (Jeffra, 39 Cal.App.5th at 485.) (Emphasis added.) 13 Notably, the evidentiary burden is also reduced, as the court must consider any declaration submitted 14 in opposition to the anti-SLAPP Motion. (Sweetwater, 6 Cal.5th at 949.) (Emphasis added.) In this 15 regard, “the written statements themselves need not be admissible at trial, but it must be reasonably 16 possible that the facts asserted in those statements can be established by admissible evidence at trial.” 17 (Ibid, at 948, fn 12, italics in original.) Unless the evidence suffers from “the sort of evidentiary problem 18 a plaintiff will be incapable of curing by the time of trial[,]” all of a plaintiff’s opposing evidence is 19 required to be considered and accepted as true. (Id., at 948, internal quotes omitted.) (Emphasis added.) 20 Courts must therefore “remain mindful that the anti-SLAPP statute was adopted to end meritless suits 21 targeting protected speech, ‘not to abort potentially meritorious claims due to a lack of discovery.’ 22 [Citation.]” (Wilson, 7 Cal.5th at 891.) (Emphasis added.) Accordingly, “[w]here a defendant relies on 23 motive evidence in support of an anti-SLAPP motion, a plaintiff's request for discovery concerning the 24 asserted motive may often present paradigmatic ‘good cause.’ [Citation]” (Ibid, at 891-892.) However, 25 where discovery has been denied, judicial scrutiny of the plaintiff’s evidence is relaxed, rendering the 26 standard even more forgiving than that on summary judgment.9 (See Jeffra, 39 Cal.App.5th at 485.) 27 28 9 This is especially important here, given this Court’s July 13, 2020 decision to deny Mr. Clausen’s Ex-Parte Application to continue the matter so that his Motion to Open Discovery could be considered. As such, greater deference and leniency must now be accorded to Mr. Clausen in assessing whether he has met his burden in establishing minimal merit. (Jeffra, 39 Cal.App.5th at 485.) 10. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP 1 1. THE TIMING OF PLAINTIFF’S TERMINATION ESTABLISHES THE MINIMAL 2 MERIT OF HIS DISABILITY DISCRIMINATION, RETALIATION, WRONGFUL 3 DISCHARGE AND FAILURE TO ACCOMMODATE CLAIMS. For discrimination, the plaintiff must show that he/she was a member of a protected class; was 5 performing the job competently; and suffered an adverse employment action such as termination, or other 6 circumstances suggesting a discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 7 355.) A plaintiff can establishes retaliation by showing that he/she was subjected to an adverse 8 employment action based on an unlawful reason—namely, engaging in a protected activity. (Yanowitz 9 v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.) For wrongful discharge, the plaintiff must show that 10 the termination of his/her employment was in violation of public policy—e.g., discrimination or 11 retaliation in violation of the FEHA. (Gantt v. Sentry Ins. (1992) 1 Cal.4th 1083, 1089-1090.) Livingston • Bakhtiar 4 12 Unlike with discrimination and retaliation, a failure to accommodate cause of action does not require 13 proof that the employee’s disability resulted in an adverse employment action, since the failure to 14 accommodate is a violation of the statute in and of itself. (Jensen v. Wells Fargo (2000) 85 Cal.App.4th 15 245, 256.) A failure to accommodate cause of action thus only requires the plaintiff to show that he/she 16 suffered from a physical or mental condition that made it difficult to participate in at least one major life 17 activity;10 that he/she was able to perform the essential duties of the job, either with or without reasonable 18 accommodations; and the employer failed to reasonably accommodate the plaintiff’s known disability. 19 (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236; Jensen, 85 Cal.App.4th at 254; Hernandez v. 20 Rancho Santiago Cmty. College Dist. (2018) 22 Cal.App.5th 1187, 1193-1194.) 21 The “FEHA’s reference to a ‘known’ disability is read to mean a disability of which the employer has 22 become aware, whether because it is obvious, the employee has brought it to the employer’s attention, 23 it is based on the employer’s own perception–mistaken or not–of the existence of a disabling condition 24 or ... the employer has come upon information indicating the presence of a disability.” (Gelfo v. Lockheed 25 Martin (2006) 140 Cal.App.4th 34, 61, fn 21.) (Emphasis added.) This definition is intended to be 26 expansive in order to defeat any purposeful effort to avoid acquiring knowledge of a disability or 27 potential disability. 28 /// 10 Cal. Govt. Code § 12926(m)(1)(B)(ii); 2 C.C.R. § 11065(l)(3). 11. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP 1 Notably, since 2015, the FEHA has recognized requests for accommodations to be protected activities. 2 (Govt. Code § 12940(m)(2).) However, despite Defendants’ contrary view, Govt. Code § 12940(m) does 3 not require an employee to specifically request an accommodation as a predicate to being engaged in the 4 interactive process and accommodated. This is because a continuing affirmative duty to engage in the 5 interactive process and accommodate automatically arises once an employer knows of an employee’s 6 potential disabilities. (2 C.C.R. § 11068(a); Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 7 935, 949-951; A.M. v. Albertsons (2009) 178 Cal.App.4th 455, 464; Soria v. Univision Radio (2016) 5 8 Cal.App.5th 570, 593 and 599.) Therefore, “[a]n employee is not required to specifically invoke the protections of FEHA or speak any 10 ‘magic words’ in order to effectively request an accommodation under the statute.” (Soria, 5 Cal.App.5th 11 at 599 citing to Prilliman, 53 Cal.App.4th at 954; see Gelfo, 140 Cal.App.4th at 62, fn. 22.) (Emphasis Livingston • Bakhtiar 9 12 added.) Imposing such a requirement upon an employee with a known disability, as Defendants suggest, 13 would only conflict with the employer’s affirmative duties under the FEHA.11 (2 C.C.R. § 11068(a); 14 Prilliman, 53 Cal.App.4th at 949-951; Soria, 5 Cal.App.5th at 599.) 15 Here, Mr. Clausen has alleged that Defendants knew about his disabilities, both from their own 16 observations and through his notification to Farhat. (Exh. 8, ¶¶ 14-16, 20) Mr. Clausen has further 17 alleged that soon after notifying Farhat about his condition, his 27 years of employment was terminated 18 in an effort to avoid having to furnish him with reasonable accommodations. (Exh. 8, ¶¶ 20-23, 25) 19 These facts are the benchmarks for Mr. Clausen’s action, since the “FEHA protects employees against 20 preemptive retaliation.” (Steele v. YOPB (2008) 162 Cal.App.4th 1241, 1255.) (Emphasis added.) It is 21 well recognized that an “‘[a]ction taken against an individual in anticipation of that person engaging in 22 protected [activities] is no less retaliatory than action taken after the fact.’ [Citation]” (Ibid, at 1254- 23 1255.) (Emphasis added.) This paradigm encompasses the avoidance of accommodations through the 24 termination of an employee the employer anticipates will require or request accommodations. (Id.) 25 26 27 28 11 In Soria, the plaintiff-employee never made a “request” for accommodations, but did inform her supervisor that she had been diagnosed with a potentially cancerous tumor that her doctors wanted to remove, requiring the partial removal of her stomach and esophagus as well. (Soria, 5 Cal.App.5th at 593.) Soria concluded that “[t]he only reasonable interpretation of this information, if the jury finds [the plaintiff’s] testimony credible, is that [the plaintiff] had a serious condition that would interfere with her ability to work.” (Id.) Accordingly, Soria held that the information conveyed by the plaintiff was sufficient to trigger the employer’s obligations under the FEHA. (Id., at 593 and 599.) 12. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP 1 To prove his allegations, Mr. Clausen can rely on the temporal proximity of his termination. “That 2 an employer’s actions were caused by an employee’s engagement in protected activities may be inferred 3 from ‘proximity in time between the protected action and the allegedly retaliatory employment 4 decision.’[Citation.]” (Ray v. Henderson, 217 F.3d 1234, 1244 (9th Cir.2000).) (Emphasis added.) In other 5 words, the “[t]iming of events” can establish the necessary causal link needed to prove retaliation and 6 discrimination. (Colarossi v. Coty US Inc. (2002) 97 Cal.App.4th 1142, 1153; McRae v. Dept. of 7 Corrections (2006) 142 Cal.App.4th 377, 388; Morgan v. U.C. Regents (2000) 88 Cal.App.4th 52, 69; 8 Flait v. North Am. Watch Corp. (1992) 3 Cal.App.4th 467, 479; Fisher v. San Pedro Peninsula Hosp. 9 (1989) 214 Cal.App.3d 590, 615.) In Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, a prima facie case for 11 retaliation and discrimination was established by the termination of an employee a month after he Livingston • Bakhtiar 10 12 complained about his employer’s refusal to continue affording him the modified work schedule he needed 13 in order to care for his disabled child. (Ibid, at 1049.) In Passantino v. J&J Consumer Prod., 212 F.3d 14 493, (9th Cir.2000),12 the Ninth Circuit concluded that “evidence based on timing can be sufficient to let 15 the issue go to the jury, even in the face of alternative reasons proffered by the defendant.” (Ibid, at 507.) 16 (Emphasis added.) Three years later, in Stegall v. Citadel Broadcasting Co., 350 F.3d 1061, (9th 17 Cir.2003), the Ninth Circuit once again observed that the temporal proximity between an employee’s 18 protected activities and the adverse employment action “can provide strong evidence of retaliation.” (Ibid, 19 at 1069.) (Emphasis added.) 20 Significantly, the delay between the protected activity and the adverse act does not even have to be 21 short. (Flores v. City of Westminster, 873 F.3d 739, 750, fn 5, (9th Cir. 2017). In George v. Cal. Unemp. 22 Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, a delay of four month was described as “relatively close 23 timing,” from which supporting inferences could be drawn. (Ibid, at 1492.) (Emphasis added.) In 24 Coszalter v. City of Salem, 320 F.3d 968, (9th Cir. 2003), the Ninth Circuit declined to adopt “any 25 bright-line rule about the timing of retaliation” and instead held that, “[d]epending on the circumstances, 26 three to eight months is easily within a time range that can support an inference of retaliation.” (Ibid, 27 at 977-978.) (Emphasis added.) 28 12 “Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes.” (Guz, 24 Cal.4th at 354.) 13. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP 1 The evidence here shows that Mr. Clausen’s physical symptoms were increasing and becoming more 2 noticeable. (A.Clausen Decl. ¶¶ 66-69, 71-72; S.Clausen ¶¶ 10, 40-50; Bush Decl. ¶¶ 14-16, 18) 3 Consequently, on June 30, 2017, Mr. Clausen confirmed his Parkinson’s diagnosis to Farhat, thereby 4 leaving no doubt as to his condition.13 (Soria, 5 Cal.App.5th at 593 and 599.) A month later, Mr. 5 Clausen’s employment was abruptly terminated despite his 27 years of stellar performance. These facts give rise to a reasonable inference that soon after confirming his diagnosis, Defendants 7 perceived that Mr. Clausen’s physical state was only going to deteriorate, dictating his inevitable request 8 and need for reasonable accommodations.14 While Defendants contend that Mr. Clausen’s failure to 9 engage and failure to accommodate causes of action are time-barred, California law explicitly holds that 10 “a pretextual termination of a perceived-as-disabled employee’s employment in lieu of providing 11 reasonable accommodation or engaging in the interactive process does not provide an employer a Livingston • Bakhtiar 6 12 reprieve from claims for failure to accommodate and failure to engage in the interactive process.” (Moore 13 v. Regents of U.C. (2016) 248 Cal.App.4th 216, 244.) (Emphasis added.) 14 2. DEFENDANTS’ LIES ABOUT THE REASON FOR PLAINTIFF’S TERMINATION 15 ESTABLISH THE MINIMAL MERIT OF HIS DISABILITY DISCRIMINATION, 16 R ETALIATION , W RONGFUL D ISCHARGE AND F AILURE TO 17 ACCOMMODATE CLAIMS. 18 Defendants’ unlawful motives are further highlighted by their efforts to escape liability through lies 19 and deceit. (Cloud v. Casey (1999) 76 Cal.App.4th 895, 911-912.) Defendants’ arguments all boil down 20 to a singular proposition: Mr. Clausen was fired for performance deficiencies. Defendants contend that 21 Mr. Clausen was not supposed to delegate the composition of music to his team; was allegedly unable 22 to capture the showrunners’ vision; and purportedly, was incompetent with regard to synth and rap music. 23 24 25 26 27 28 13 Where an agent has acquired knowledge which he or she had a duty to communicate to his or her principal, a conclusive presumption arises that the agent has performed that duty (Freeman v. Sup.Ct. (1955) 44 Cal.2d 533, 538.) California law has long held that, “[a]s against a principal, both principal and agent are deemed to have notice of whatever either has notice of....” (Davis v. Inter’l. Brotherhood of Elec. Workers (1971) 16 Cal.App.3d 686, 695; Civil Code § 2332.) (Emphasis added.) Even if “the knowledge acquired by the agent was not actually communicated to the principal ... [it] does not prevent operation of the rule ... [since] [t]he knowledge is, in law, imputed to the principle.” (Id.) (Emphasis added.) 14 It is widely known that Parkinson’s disease is degenerative and terminal, with no known cure. 14. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP 1 “[E]vidence that the employer’s claimed reason is false ... will tend to suggest that the employer seeks 2 to conceal the real reason for its actions, and this in turn may support an inference that the real reason 3 was unlawful.” (Mamou, 165 Cal.App.4th at 715.) (Emphasis added.) The U.S. Supreme Court is in 4 accord, holding that “[t]he factfinder’s disbelief of the reasons put forward by the defendant (particularly 5 if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima 6 facie case, suffice to show intentional discrimination.” (St. Mary’s Honor Center v. Hicks (1993) 509 7 U.S. 502, 511.) (Emphasis added.) In such an event, the “rejection of the defendant’s proffered reasons 8 will permit the trier of fact to infer the ultimate fact of intentional discrimination ... [and] upon such 9 rejection, ‘[n]o additional proof of discrimination is required,’[Citation].” (Ibid, italics in original.) Mr. Clausen’s evidence—which must now be accepted as true—demonstrates that, since at least 2008, 11 FOX had known he regularly delegated the composition of music to members of his team.15 (A.Clausen Livingston • Bakhtiar 10 12 Decl. ¶¶ 24-26, 46-63; S.Clausen ¶¶ 8-9, 16-18, 25-37; Exhs. 1-3) This fact is confirmed not only through 13 FOX’S own cue sheets, but emails between Matt Selman, Al Jean, Carol Farhat and even James Brooks, 14 wherein discussions about Scott Clausen and others composing cues are undeniable.16 (A.Clausen Decl. ¶¶ 15 26, 46-63; S.Clausen Decl. ¶¶ 25-37; Exhs. 1-2 and 3, pp. 1-4, 6-13, 17-27) 16 The notion that Mr. Clausen was unable to capture the showrunners’ vision is equally ludicrous. 17 Pulling aside Selman’s December 2016 confession about feeling honored to be part of Mr. Clausen’s 18 orchestration entourage (Exh. 6), during his 27 years as the composer of the show, Mr. Clausen won two 19 Emmys, five Annie Awards and became the most nominated composer in Emmy history, amassing a 20 record 23 Emmy nominations for his work on The Simpsons. (A.Clausen Decl. ¶ 10) The mere fact that 21 Al Jean and Matt Selman routinely skipped the recording sessions suggests how much faith and 22 confidence they had in Mr. Clausen delivering their vision. (A.Clausen Decl. ¶¶ 22, 37-38) 23 24 25 26 27 28 15 Each episode could contain 30 or more cues. (A.Clausen Decl. ¶ 19) Meanwhile, the score for each episode had to be written in less than a week. (A.Clausen Decl. ¶ 28) As the show’s composer, Mr. Clausen was in charge of overseeing the scoring of each episode, not personally writing every piece of music that went into every episode. (A.Clausen Decl. ¶ 25) Defendants’ contrary position is intellectually dishonest in light of the obvious limitations imposed by the short deadlines. 16 In Yanowitz, the California Supreme Court found triable issues of fact as to whether the employer’s proffered reasons for termination were pretextual when the alleged complaints about the employee were known prior to the protected activity, but no action had ever been taken. (Yanowitz, 36 Cal.4th at 1061-1062.) In Soria, evidence of the employer’s sudden interest in the plaintiff’s long-history of tardiness, after it learned she was disabled, established pretext. (Soria, 5 Cal.App.5th at 596.) 15. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP 1 Not only that, Mr. Clausen was never once criticized by anyone and there is no evidence of anyone 2 ever complaining about his work or abilities at any time. (A.Clausen Decl. ¶¶ 10, 36-37; S.Clausen 3 Decl. ¶ 24; Bush Decl. ¶ 13) Surely, if Mr. Clausen was having so much trouble meeting expectations, 4 as Defendants now shamelessly and disingenuously contend, there would have ben one email, text 5 message, instant message, or internal memo mentioning it during his 27 years with the show. Like the rest of their arguments, there is likewise no merit to the proposition that Mr. Clausen was 7 incapable of composing modern music, including electronic, rap and/or hip hop. During his time as the 8 composer of The Simpsons, Mr. Clausen scored nearly all of the music for each episode, spanning a wide 9 spectrum of styles and genres, from rock, R&B, rap/hip hop, electronic, disco, country, big-band, choral, 10 contemporary, etc. (A.Clausen Decl. ¶¶ 6, 9, 36, 44) By 2017, Mr. Clausen had amassed an extensive 11 and comprehensive music library from which he could draw. (A.Clausen Decl. ¶¶ 6, 9, 36, 44) This Livingston • Bakhtiar 6 12 includes numerous rap and hip hop cues, including the “Homerpalooza” episode of season 7, where the 13 producers had him compose the hip hop song “Insane in the Membrane” by the rap group Cypress Hill, 14 using an orchestra. (A.Clausen Decl. ¶ 45) 15 There is also no truth to the claim about Mr. Clausen requiring an orchestra or not being able to 16 furnish synth music. The producers, including James Brooks, all knew the music for each episode was 17 “mocked-up” with computer software before the recording sessions, thereby allowing them to review and 18 make whatever changes to the music they wanted before it was recorded. (A.Clausen Decl. ¶¶ 29-31; 19 S.Clausen Decl. ¶¶ 16-18, 51-53; Exh. 3, pp. 8, 14-17, 21; Exh. 5, pp. 1, 3, 6, 9-17) Mockups could have 20 even been refined for broadcast. (A.Clausen Decl. ¶ 42) 21 However, the creator and producers of the show had decided to use a live orchestra for the music. 22 (A.Clausen Decl. ¶¶ 39, 43) In the early 1990s, the producers even instructed Mr. Clausen to remove 23 the synthesizer and electric piano he had included in the orchestra. (A.Clausen Decl. ¶¶ 40-43) 24 Notwithstanding, Mr. Clausen still used synthesizers, but only when scenes or episodes required it. 25 (A.Clausen Decl. ¶ 41) For instance, in 2007, Mr. Clausen composed a parody of the television show 26 24, containing only synth music. (A.Clausen Decl. ¶ 41; S.Clausen Decl. ¶ 39) There is simply no 27 evidence of Mr. Clausen ever expressing any opposition to synth music because he was fully capable of 28 creating it, as he had done so on countless times. (A.Clausen Decl. ¶¶ 42-43; S.Clausen Decl. ¶ 38) 16. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP 1 Finally, the evidence shows that Defendants’ claims about the budget are also untrue. Mr. Clausen 2 received a budget that he had to manage. (A.Clausen Decl. ¶¶ 14-15) Mr. Clausen worked well with 3 Carol Farhat to meet all budgetary limits and was never once criticized or given any negative feedback 4 by anyone about the budget or the cost of the show’s music. (A.Clausen Decl. ¶¶ 14, 16, 36, 80-81) Mr. 5 Clausen was also never told by anyone that the music budget was too high or that FOX wanted to use 6 synth music in order to transition away from the orchestra and save money. (A.Clausen Decl. ¶ 79) 7 8 3. DEFENDANTS’ LIES ABOUT THE REASON FOR PLAINTIFF’S TERMINATION ESTABLISH THE MINIMAL MERIT OF HIS AGE DISCRIMINATION CLAIMS. California’s age discrimination statutes are to be enforced “with the goal of not only protecting older 10 workers as individuals, but also of protecting older workers as a group, since they face unique obstacles 11 in the later phases of their careers.” (Govt. Code § 12941.) The age discrimination laws protect those Livingston • Bakhtiar 9 12 workers who are over the age of 40 and these laws are interpreted “broadly and vigorously.” (Govt. Code 13 §§ 12940(a), 12941.) 14 Under the FEHA, a plaintiff need only offer circumstantial evidence supporting a reasonable inference 15 of age discrimination. “In order to make out a prima facie case of age discrimination under FEHA, a 16 plaintiff must present evidence that the plaintiff (1) is over the age of 40; (2) suffered an adverse 17 employment action; (3) was performing satisfactorily at the time of the adverse action; and (4) suffered 18 the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., 19 evidence that the plaintiff was replaced by someone significantly younger than the plaintiff.” (Sandell 20 v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 321.) (Emphasis added.) 21 Here, without any evidentiary support whatsoever, Matt Selman asserts that Mr. Clausen had a 22 “comfort zone” that did not include modern music, including rap. (Selman Decl. ¶ 19) Likewise, James 23 Brooks inexplicably admits to having concluded that Mr. Clausen was not the “right choice” when it 24 came to composing rap music. (Brooks Decl. ¶ 3.) 25 Aside from his sudden termination and younger replacement, these telling statements additionally 26 support Mr. Clausen’s claims of an age bias. This is because Brooks and Selman have unveiled their 27 discriminatory ageist beliefs that Mr. Clausen was only good at old styles of music, rather up-to-date 28 genres, such as rap, electronic, etc.—even though the evidence and his work history prove otherwise. 17. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP 1 In Price Waterhouse v. Hopkins (1989) 490 U.S. 228, an employer described a female employee as 2 “macho” and “masculine” and told her that “to improve her chances for partnership, ... [she] should ‘walk 3 more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and 4 wear jewelry.’” (Ibid, at 231-232 and 235.) (Emphasis added.) After her employer declined to nominate 5 her for a partnership position, the plaintiff sued, alleging sex/gender discrimination. (Id., at 231-233.) On review, the U.S. Supreme Court concluded that an employer who makes a decision predicated 7 upon preconceived stereotypes—e.g., gender, age, race, disability—had acted discriminatorily and in 8 violation of the law. (Id., at 250.) Thus, stereotyping based upon protected gender-role characteristics 9 was actionable as discrimination, even where the defendant employer purported to offer a legitimate 10 reason for the adverse action—i.e., the plaintiff’s allegedly poor interpersonal skills. (Id. at 250-252 11 (plurality); see also id., at 258 (White, J., concurring); id., 272-273 (O’Connor, J., concurring).) This Livingston • Bakhtiar 6 12 same rationale applies here given Defendants’ baseless conclusions and assertions about Mr. Clausen. 13 Stereotyping aside, lies, particularly about poor performance, can also demonstrate pretext. In Cheal 14 v. El Camino Hosp. (2014) 223 Cal.App.4th 736, the plaintiff, a 61-year-old with an exemplary 15 performance record, was fired for performance deficiencies by a new supervisor. Based on the plaintiff’s 16 performance history, the subjective nature of the supervisor’s complaints and the false statements the 17 supervisor gave, Cheal reversed, finding sufficient evidence of pretext. (Ibid, at 753-754.) 18 Similarly, in Sandell, a 60 year old employee was fired for poor performance and replaced by 19 someone just five years younger. The plaintiff’s performance evaluations were largely positive overall, 20 save for his last year of employment, which was mostly negative.17 (Sandell, 188 Cal.App.4th at 306.) 21 Sandell reversed summary judgment, in spite of the defendant’s undisputed evidence that during the 22 first year of plaintiff’s employment as the VP of Sales, sales dropped for the first time in 20 years and 23 fluctuated thereafter. (Id., at 304-305 and 315.) Sandell focused on the multiple inconsistencies in the 24 defendant’s evidence and heavily relied on the plaintiff’s two positive reviews in context with other 25 peripheral facts. (Id., at 315-317.) Sandell even observed that the parties’ dispute over the factual issues 26 relevant to the plaintiff’s alleged performance deficiencies “demonstrates why this case is not an 27 appropriate one for summary judgment and instead should be heard by a jury.” (Id., at 319.) 28 17 Unlike Mr. Clausen, the Sandell plaintiff had been with the defendant employer for just three years and only had two positive overall performance reviews. (Sandell, 188 Cal.App.4th at 305-306.) 18. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP 1 In Begnal v. Canfield & Assoc., Inc. (2000) 78 Cal.App.4th 66, an age discrimination plaintiff was 2 replaced by someone older than her, resulting in a JNOV. In reversing, Begnal held that the employer’s 3 falsification of its stated reason for the plaintiff’s termination substantially supported an inference 4 favoring age discrimination. (Ibid, at 76-77.) Begnal recognized that “[i]t is both logically and practically 5 possible for an employer to discriminate against a person on the basis of a protected personal 6 characteristic despite the fact that the person is replaced by someone with the same characteristic.” (Id., 7 at 74, internal quotes and citation omitted.) (Emphasis added.) 8 4. 9 THE CONTINUING VIOLATION DOCTRINE WILL SAVE ANY FEHA CLAIM THAT MIGHT BE UNTIMELY. Though Mr. Clausen’s claims are timely, the continuing violations doctrine tolls the one year statute 11 of limitations period when an employer has engaged in a series of continuing and related FEHA Livingston • Bakhtiar 10 12 violations—provided that at least one of the violations occurred within the one-year period. (Richards, 13 26 Cal.4th at 823-824.) This rule is applicable to all FEHA causes of action. (Yanowitz, 36 Cal.4th at 14 1056.) A “‘systematic policy of discrimination is actionable even if some or all of the events evidencing 15 its inception occurred prior to the limitations period ...[because] the continuing system of discrimination 16 operates against the employee and violates his or her rights up to a point in time that falls within the 17 applicable limitations period.’ [Citation].” (Morgan, 88 Cal.App.4th at 64.) (Emphasis added.) 18 A continuing violation is established through “‘a series of related acts against a single individual.’ 19 [Citation].” (Ibid.) (Emphasis added.) This means an employer can be held “liable for actions that take 20 place outside the limitations period if these actions are sufficiently linked to unlawful conduct that 21 occurred within the limitations period.” (Yanowitz, 36 Cal.4th at 1056.) (Emphasis added.) 22 In Yanowitz, the plaintiff was subjected to a series of retaliatory acts for over a year, after she refused 23 to comply with a discriminatory directive from her manager. (Ibid, at 1039-1040.) Although the plaintiff 24 filed her DFEH complaint over a year after most of the acts occurred, liability was still imposed for the 25 otherwise time-barred actions because the plaintiff had alleged a course of retaliatory conduct. (Id. at 26 1059.) 27 /// 28 /// 19. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP 1 In Richards, the plaintiff sought and received numerous and extensive accommodations, during a wide 2 span of time, though there was evidence of the employer’s unwillingness to fully comply. (Richards, 26 3 Cal.4th at 803-811.) When plaintiff complained about not being fully accommodated, a manager told her 4 she was “facing a brick wall and nothing was going to change.” (Ibid, at 809.) Over a year later, the 5 plaintiff resigned and nearly a year after that, filed her DFEH complaint and brought suit. (Id.) However, 6 at trial, the plaintiff was allowed to recover damages for the entire five-year period. (Id., at 811.) In upholding the verdict, the California Supreme Court held that “when an employer engages in a 8 continuing course of unlawful conduct under the FEHA by refusing reasonable accommodation of a 9 disabled employee or engaging in disability harassment, and this course of conduct does not constitute 10 a constructive discharge, the statute of limitations begins to run not necessarily when the employee first 11 believes that his or her rights may have been violated, but rather, either when the course of conduct is Livingston • Bakhtiar 7 12 brought to an end, as by the employer’s cessation of such conduct or by the employee’s resignation, or 13 when the employee is on notice that further efforts to end the unlawful conduct will be in vain.” (Id., at 14 823.) (Emphasis added.) As such, “an employer’s persistent failure to reasonably accommodate a 15 disability ... is a continuing violation if the employer’s unlawful actions are (1) sufficiently similar in 16 kind—recognizing ... that similar kinds of unlawful employer conduct, such as acts of harassment or 17 failures to reasonably accommodate disability, may take a number of different forms [Citation]; (2) have 18 occurred with reasonable frequency; (3) and have not acquired a degree of permanence.” (Id., at 823.) 19 (Emphasis added.) “‘[P]ermanence’ in the context of an ongoing process of accommodation of 20 disability,” means “that an employer’s statements and actions make clear to a reasonable employee that 21 any further efforts at informal conciliation to obtain reasonable accommodation or end harassment will 22 be futile.” (Ibid, at 823.) (Emphasis added.) Since this analysis relating to permanence is a “fact specific 23 inquiry,” it is inappropriate for summary judgment, making it also inappropriate here. (Id., at 824.) 24 Here, Selman knew about Mr. Clausen’s condition on December 9, 2016 and Farhat learned about it 25 on June 30, 2017. Once his disability was known, FOX’S continuing affirmative duty to engage in the 26 interactive process and accommodate arose. (2 C.C.R. § 11068(a); Prilliman, 53 Cal.App.4th at 950; 27 A.M., 178 Cal.App.4th at 464; Soria, 5 Cal.App.5th at 600.) This included the duty to inform Mr. Clausen 28 about all accommodations that FOX had available. (Prilliman, 53 Cal.App.4th at 950.) 20. PLAINTIFF’S MEMORANDUM OF POINTS & AUTHORITIES IN OPPOSITION TO ANTI-SLAPP 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 7 affirmative duty to act, Defendants chose to do nothing. Defendants' omissions thereby amounted to a 8 pattern 9 accommodations-which did not reach permanence until Mr. Clausen was fired in August 2017. 10 of suffrciently similar conduct-the failure to engage in the interactive 5. Pr,arNunn's RnvIIINING CAUSES oF ACTION ARE DNRIVNUVE FEHA Cl¡¡tvts 11 a ß-7a; Exh 7, pp. 1-7) Therefore, despite AND SuRvrvE F'oR THE SAME its process and offer OF HIS 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 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, Defendants' instant anti-SLAPP Motion must be denied. Crn nn or e¿ Krgse Ano LrvrNcsroN . Bn