Case Name: Klein v. Bernardo, et al.

Case No.: 21SMCV01577 Complaint Filed: 9-27-21

Hearing Date: 3-15-22 Discovery C/O: None
Calendar No.: 15 Discover Motion C/O: None
POS: OK Trial Date: None
SUBJECT: SLAPP MOTION
MOVING PARTY: Defendants The Regents of the University of California and Antonio
Bernardo
RESP. PARTY: Plaintiff Gordon Klein

TENTATIVE RULING
Defendants The Regents of the University of California and Antonio Bernardo’s SLAPP
Motion is GRANTED in part and DENIED in part. Defendant is to submit a proposed order
consistent with the ruling that specifically identifies by page and line and quotes the allegations
of protected conduct the Court orders stricken.

With the exception of the 2nd and 3rd causes of action for public disclosure and false light,
Plaintiff’s causes of action are based on mixed protected and unprotected conduct.
The only protected conduct successfully identified by Defendants for purposes of the 1st prong of
SLAPP is the June 4, 2020 email by Bernardo and the Public Attacks alleged in the FAC.

Defendants’ SLAPP is GRANTED as to the allegations of the transmittal of the June 4,

2020 email and the “Public Attacks” (i.e. public disclosure of the Confidential Personal Action
and “publicly attacking Plaintiff”) as alleged in the 2nd cause of action for public disclosure of
private facts (only Bernardo named), 4th cause of action for retaliatory discrimination in violation
of Labor Code §1102.5 as to both Defendants, 5th cause of action for common law retaliation as
to both Defendants, 6th cause of action for negligent interference with prospective economic
advantage as to Defendant Regents, the 6th cause of action for negligent interference against
Bernardo to the extent based on the Public Attacks, 7th cause of action for breach of employer’s
duty under Labor Code §1102 (only Regents named). Plaintiff failed to make a prima facie
showing that these allegations would support a judgment in his favor arising from the June 4,
2020 email and Public Attacks as to each of these claims. The allegations regarding the June 4,
2020 email and the Public Attacks are stricken from these causes of action. Because the 2nd
cause of action for public disclosure is based solely on the public disclosure of the Confidential
Personnel Action in the June 4, 2020 email, that entire cause of action is dismissed per SLAPP.

Defendants’ SLAPP is DENIED as to the June 4, 2020 email and the Public Attacks as
alleged in the 1st cause of action for breach of contract (alleged against Regents only), the 3rd
cause of action for false light (against Bernardo only), and the 6th cause of action for negligent
interference against Bernardo as to the June 4, 2020 email. Plaintiff makes a prima facie
showing that would support judgment in his favor as to each of these claims. Defendants fail to
establish that any of these causes of action are barred as an issue of law by the plethora of
affirmative defenses raised.

Plaintiff’s RJN is GRANTED. Defendants’ evidentiary objections to the Plaintiff’s

1 March 29, 2022
evidence are OVERRULED.

REASONING
“Litigation of an anti-SLAPP motion involves a two-step process. First, the moving
defendant bears the burden of establishing that the challenged allegations or claims arise from
protected activity in which the defendant has engaged. Second, for each claim that does arise
from protected activity, the plaintiff must show the claim has “at least minimal merit. If the
plaintiff cannot make this showing, the court will strike the claim.” Bonni v. St. Joseph Health
System (2021) 11 Cal.5th 995, 1009.

I. 1st Step

On the 1st stepg, “courts are to consider the elements of the challenged claim and what
actions by the defendant supply those elements and consequently form the basis for liability.
The defendant's burden is to identify what acts each challenged claim rests on and to show how
those acts are protected under a statutorily defined category of protected activity.” Bonni, supra,
11 Cal.5th at 1009.

Where the plaintiff alleges multiple factual bases for a particular cause of action and the
defendant moves to strike the entire cause of action, the defendant must demonstrate that each
factual basis qualifies as protected activity and supplies an element of the challenged claim, as
opposed to being merely contextual or incidental. Bonni, supra, 11 Cal.5th at 1011-1012. If a
defendant seeks to strike an entire cause of action with multiple factual bases, it is defendant’s
burden to address each factual basis. Id. at 1011. If the defendant fails to address a particular
subpart or factual basis, the defendant fails to carry its first prong burden as to that subpart or
claim. Id. “If a cause of action contains multiple claims and a moving party fails to identify how
the speech or conduct underlying some of those claims is protected activity, it will not carry its
first-step burden as to those claims. The nonmovant is not faced with the burden of having to
make the moving party's case for it.” Id.

Defendant argues the entire complaint “arises from” conduct protected under SLAPP
based on the disapproved “principle thrust” gravamen test. The Supreme Court in Bonni clearly
and unambiguously rejected the so called “principle thrust” - “essence” gravamen test. See
Bonni, supra, 11 Cal.5th at 1010-1012 and . Instead, a moving party must present a “claim-by-
claim” approach to meet their burden under the first step of the SLAPP analysis: (1) the moving
defendant must identify the acts alleged in the complaint that it asserts are protected; (2) the
moving defendant must then identify what claims for relief are predicated on these allegedly
protected acts; and (3) identify how that speech or conduct underlying activity is protected
activity that supply the basis for any claims. Id. at 1010-1011.

Where a cause of action “rests on allegations of multiple acts, some of which constitute
protected activity and some of which do not,” the defendant must establish that each of the acts is
protected. Id. If the defendant fails to identify how a specific act is protected activity, it fails to
carry its first-step burden as to those acts and those acts are “disregarded.” Id.

2 March 29, 2022

 A. SLAPP is only brought as to Bernardo’s June 4, 2020 email and Defendants’
“publicly attacking Plaintiff for having challenged the Student’s request…”

Plaintiff has clearly alleged multiple factual bases in his complaint, including
clearly unprotected conduct, such as denial of a merit raise. Under Bonni, to the extent
Defendant maintains the causes of action are not mixed, it was required to demonstrate
that they are not mixed. Defendant failed to do so.

However, Defendant clearly identified two of the factual bases alleged by Plaintiff
as protected conduct under CCP §425.16(e)(2) and (e)(4)—Bernardo’s June 4, 2020
email and Defendants’ public attacks on Plaintiff for having challenged the Student’s
request. See Defendants’ MP&As, 14:23-28-15:1-7. Defendant also identifies the
element of the causes of action supplied by these two factual bases. Id. at 14:26-28-15:1-
7. The June 4, 2020 email publicly disclosing the Confidential Personnel Action supplies
the elements for each of the seven causes of action, and Defendants’ public attacks
supplies the elements for the 4th cause of action and 5th causes of action for retaliation, 6th
cause of action for negligent interference and the 7th cause of action for breach of duty of
neutrality. Id.

Plaintiff concedes that the public disclosure of his Confidential Personnel Action
supplies an element of each of his seven causes of action. See Plaintiff’s Opposition,
10:23. Plaintiff also concedes that Defendants’ public attacks on him for challenging the
student’s request supplies an element of the 4th through 7th causes of action.

Plaintiff and Defendant therefore agree that (1) all causes of action arise from the
June 4, 2020 email publicly disclosing Plaintiff’s Confidential Personnel Action and (2)
the 4th through 7th causes of action arise from Defendants’ public attacks on Plaintiff for
challenging the student’s request. The SLAPP motion may properly proceed as to these
factual bases. All other factual bases are outside the scope of the SLAPP motion and are
disregarded because Defendant failed to address them. See Bonni, supra, 11 Cal.5th at
1010.

On reply, Defendant raised the June 21, 2020 email. New arguments are not
generally permitted on reply, especially without a showing of good cause for failing to
raise those points initially. See Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002,
1010 (points raised on reply will not be considered unless good shown for failure to
present them before); Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538. Plaintiff
also referenced the email in opposition. However, Defendant failed to identify the
element of the cause of action supplied by the June 21, 2020 email, nor does it appear
from the FAC that Plaintiff is including that email as a public disclosure of Confidential
Personnel Action. Defendant was required to identify the element of the cause of action
supplied by the June 21, 2020 email under Bonni; it failed to do so.

B. The June 4, 2020 email and Defendants’ public attacks qualify as protected
conduct under (e)(4)
3 March 29, 2022
 Defendant fails to establish that (e)(2) applies. The anti-SLAPP statute protects
communications “made in connection with an issue under consideration or review by a
legislative, executive, or judicial body, or any other official proceeding authorized by law.” CCP
§ 425.16(e)(2). “[O]ther official proceeding” means a governmental forum, regardless of the
label. Olaes v. Nationwide Mut. Ins. Co. (2006) 135 Cal.App.4th 1501, 1506.

The official proceeding must be “ongoing—or, at the very least, immediately pending”—
at the time of the communication. See Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th
610, 627. “Conversely, if an issue is not presently ‘under consideration or review’ by such
authorized bodies, then no expression—even if related to that issue—could be ‘made in
connection with an issue under consideration or review.’ (§ 425.16, subd. (e)(2).) What our
appellate courts have declined to do is presume speech meets the requirements of section 425.16,
subdivision (e)(2) when no official proceeding was pending at the time of the speech.” Id.
(defendant’s statements were not protected under (e)(2) where they were “not made at the time
or on the eve” of renewal decision but years before issue came under review).

“The statute does not accord anti-SLAPP protection to suits arising from any act having
any connection, however remote, with an official proceeding. The statements or writings in
question must occur in connection with ‘an issue under consideration or review’ in the
proceeding.” Paul v. Friedman (2002) 95 Cal.App.4th 853, 866. A statement is “in connection
with” litigation under CCP § 425.16(e)(2) if it relates to substantive issues in the litigation and is
directed to persons having some interest in the litigation (need not be parties or potential parties.
See Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1055 (email
providing litigation update to nine customers who were involved in litigation between plaintiff
and defendant for defamation and unfair competition qualified as protected conduct under
(e)(2)).

According to Bernardo, he forwarded complaints about Plaintiff to the Title IX office and
the Discrimination Prevention Office on June 2, 2020. See Dec. of A. Bernardo, ¶¶13-14.
Thereafter, Bernardo sent the June 4, 2020 email containing the Confidential Personnel
Disclosures. Id. at 17. Defendant’s evidence fails to clearly establish either an ongoing or
immediately pending official proceeding authorized by law, or that the June 4, 2020 email was
“in connection with an issue under consideration or review” in that proceeding.” Defendant
Bernardo’s email was sent to the “UCLA Anderson Community,” and he testifies that the email
was sent to the Anderson email listserv, which includes Anderson’s current and former students,
faculty and alumni. Bernardo testifies that he sent the email to express his viewpoint on
Plaintiff’s remarks in response to a student’s request for testing, grading and assignment
accommodations for “Black classmates.” Id. at ¶16; Defendant’s Lodged Evidence, Ex. E.
Defendant’s evidence fails to establish that Bernardo’s June 4, 2020 email was a statement in
connection with issues under review in an “official proceeding authorized by law.”

In addition to Bernardo’s June 4, 2020 email, Plaintiff alleges public attacks by

Defendants as follows: (1) a tweet by the Andersons School on June 3, 2020 to the general
public that implied he did not believe in equal treatment for all (FAC, ¶38); (2) Professor Carla
4 March 29, 2022
Hayn’s email on June 8, 2020 to all faculty indicating she was “saddened to learn about the
troubling conduct of one of our instructors” (FAC, ¶48); and (3) an email by the Anderson
School Office of Alumni Relations to alumni on June 16, 2020 referencing Plaintiff by name, the
controversy surrounding him and reaffirming Anderson School’s rejection of racism and
violence (FAC, ¶50) (collectively hereinafter referred to as “the Public Attacks”).

Defendants fail to present any evidence that the Public Attacks were statements made in
connection with an issue under review in an “official proceeding authorized by law.” As with
the June 4, 2020 email, no clear “official proceeding authorized by law” was ongoing or
immediately pending, nor is there evidence establishing that the persons receiving the
communications had some interest in such an official proceeding. For example, the tweet was
sent to the general public. The other emails were sent to all faculty and alumni.

Defendant establishes the June 4, 2020 email and the Public Attacks are protected
conduct under (e)(4). Under (e)(4), protected conduct includes, “any other conduct in
furtherance of the exercise of the constitutional right of petition or the constitutional right of free
speech in connection with a public issue or an issue of public interest.” CCP §425.16(e)(4).
“The inquiry under the catchall provision instead calls for a two-part analysis rooted in the
statute's purpose and internal logic. First, we ask what ‘public issue or issue of public interest’
the speech in question implicates—a question we answer by looking to the content of the speech.
Second, we ask what functional relationship exists between the speech and the public
conversation about some matter of public interest. It is at the latter stage that context proves
useful.” FilmOn.com Inc., supra, 7 Cal.5th at 149-150. The statute “targets…liability premised
on speech or petitioning activity “in connection with a private issue.” Rand Resources, LLC,
supra, 6 Cal.5th at 630.

“Not surprisingly, we have struggled with the question of what makes something an issue
of public interest…We share the consensus view that a matter of concern to the speaker and a
relatively small, specific audience is not a matter of public interest, and that a person cannot turn
otherwise private information into a matter of public interest simply by communicating it to a
large number of people.” Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 621.

“[I]n order to satisfy the public issue/issue of public interest requirement of section
425.16, subdivision (e)(3) and (4) of the anti-SLAPP statute, in cases where the issue is not of
interest to the public at large, but rather to a limited, but definable portion of the public (a private
group, organization, or community), the constitutionally protected activity must, at a minimum,
occur in the context of an ongoing controversy, dispute or discussion, such that it warrants
protection by a statute that embodies the public policy of encouraging participation in matters of
public significance.” Du Charme v. International Brotherhood of Electrical Workers (2003) 110
Cal.App.4th 107, 119 (union trustee’s statement on union’s website that plaintiff had been
terminated for financial mismanagement did not qualify as protected conduct under (e)(4);
statement was “mere informational statement” and granting protection to such statements “would
in no way further the statute’s purpose of encouraging participation in matters of public
significance”).

5 March 29, 2022

 “[T]he California cases establish that generally, a public issue is implicated if the subject
of the statement or activity underlying the claim (1) was a person or entity in the public eye; (2)
could affect large numbers of people beyond the direct participants; or (3) involved a topic of
widespread, public interest. And where the issue is of interest to only a private group,
organization, or community, the protected activity must occur in the context of an ongoing
controversy, dispute, or discussion, such that its protection would encourage participation in
matters of public significance.” D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 1226.

Defendant establishes that, when Bernardo sent the June 4, 2020 email, there was an
ongoing controversy over whether Plaintiff would be reprimanded for his June 2, 2020 email.
See Dec. of A. Bernardo, ¶¶8 and 9; Plaintiff’s FAC, ¶¶33-41; Notice of Lodge Exhibits, Ex. G.
Bernardo testifies that Plaintiff’s email was disseminated on social media, “sparking widespread
outrage” and that he received “a multitude of complaints” about Plaintiff’s email. See Dec. of A.
Bernardo, ¶¶8-9; Notice of Lodgement, Ex. E. Defendants submit as Exhibit E to the Notice of
Lodgment approximately 85 emails complaining about Plaintiff’s June 2, 2020 email. See
Notice of Lodgment, Ex. E. These emails demand that Defendant UCLA take action against
Plaintiff, and a number of the emails demand Plaintiff’s resignation or termination. Id.

Bernardo also lists numerous articles reporting on Defendant UCLA’s decision to place
Plaintiff on academic leave. See Notice of Lodgment, Ex. G. However, at least one of the
articles has nothing to do with the controversy at hand. The remaining articles report on
Defendants’ decision to place Plaintiff on leave after it was made. The articles do not establish
that there was an ongoing controversy or public debate regarding Plaintiff’s Confidential
Personnel Action when Bernardo sent his June 4, 2020 email. Nevertheless, the very fact that it
was reported on by numerous outlets demonstrates public interest in UCLA’s response to the
underlying controversy, including whether UCLA would take any action against Plaintiff. In
combination with the 85 complaints, Defendants satisfy their burden of establishing that
Plaintiff’s Confidential Personnel Action was an issue of public interest.

In addition, based on Plaintiff’s FAC allegations, an ongoing public controversy existed

during the relevant period. See FAC, ¶¶33, 34, 36, 38, 47, 51, 53, 84 (alleging Bernardo used the
public punishment to placate the “online mob” that loudly and angrily” demanded “Plaintiff’s
proverbial head.”) Plaintiff testifies that his email exchange with the student went “viral” when
the student posted it on social media. See Dec. of G. Klein ISO of Opposition to SLAPP, ¶13.
Plaintiff also concedes in his opposition brief that there was public interest in Plaintiff’s private
response to the student but argues there was no public interest in the Confidential Personnel
Action. See Plaintiff’s Opposition to SLAPP, 12:5-6.

Defendant’s evidence and Plaintiff’s FAC allegations demonstrate otherwise. There was
public interest in how UCLA would respond to Plaintiff’s exchange with the student, e.g. would
UCLA, a large, public university, reprimand Plaintiff or would it do nothing? Plaintiff’s FAC
acknowledges public demands by online mobs for his head and Bernardo’s use of him as a
sacrificial lamb to placate these mobs.

Protection of Bernardo’s statement would also encourage participation in matters of

6 March 29, 2022
public interest. By reporting to the Anderson Community that Defendants had taken action
against Plaintiff for his June 2, 2020 email, Defendants indicated their responsiveness to the
complainants’ petitioning activity. Defendants therefore establish that Bernardo’s June 4, 2020
email is protected conduct under CCP §425.16(e)(4).

For these same reasons, the Public Attacks are also protected conduct under (e)(4). The
Public Attacks were statements regarding the speaker’s opinions on the public controversy
surrounding Plaintiff’s exchange with the student.

C. It is undisputed that Bernardo’s June 4, 2020 email disclosing Plaintiff’s

Confidential Personnel Action and the Public Attacks supply an element of each of
Plaintiff’s seven causes of action

Under Bonni, the Court must determine whether the June 4, 2020 email supplies an
element of Plaintiff’s causes of action. As discussed in Section I(A), Plaintiff and Defendant
agree that (1) all causes of action arise from the June 4, 2020 email publicly disclosing Plaintiff’s
Confidential Personnel Action and (2) the 4th through 7th causes of action arise from Defendants’
public attacks on Plaintiff for challenging the student’s request.

II. 2nd Step

Once defendant demonstrates that a cause of action arises from protected conduct, the
plaintiff must demonstrate that the complaint is both legally sufficient and supported by a
sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted
by the plaintiff is credited. See Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89. “Precisely
because the statute (1) permits early intervention in lawsuits alleging unmeritorious causes of
action that implicate free speech concerns, and (2) limits opportunity to conduct discovery, the
plaintiff's burden of establishing a probability of prevailing is not high: We do not weigh
credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence
favorable to the plaintiff and assess the defendant's evidence only to determine if it defeats the
plaintiff's submission as a matter of law. Only a cause of action that lacks ‘even minimal merit'
constitutes SLAPP.” See Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151
Cal.App.4th 688, 699; Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th
245, 261.

The “probability of prevailing” is tested by the same standard governing a motion for
summary judgment, nonsuit, or directed verdict. Thus, in opposing a SLAPP motion, it is
plaintiff's burden to make a prima facie showing of facts that would support a judgment in
plaintiff's favor.” Taus v. Loftus (2007) 40 Cal.4th 683, 714 (a “summary-judgment-like
procedure”).

Even if Defendant were to prevail on this SLAPP motion in whole or in part, it

would only result in striking of the June 4, 2020 email and the Public Attacks from the
complaint. See Baral v. Schnitt (2016) 1 Cal.5th 376, 393-394, 398 (SLAPP should be
used like a scalpel, just as an ordinary motion to strike is, excising the protected activity
7 March 29, 2022
from the “mixed cause of action” but leaving the cause of action intact as to the
unprotected activity). If a cause of action is based solely on the June 4, 2020 email
and/or the Public Attacks, the SLAPP will result in dismissal of that entire cause of
action. If a cause of action is based on something other than the June 4, 2020 email
and/or the Public Attacks, only the allegations regarding the June 4, 2020 email will be
stricken.

A. Plaintiff’s 4th cause of action for violation of Labor Code §1102.5(c) as to

Defendant Bernardo, 5th cause of action as to both Defendants, 6th cause of action as to
Defendant Regents and 7th cause of action as to Defendant Regents fail to state a claim and
are legally insufficient

4th cause of action for retaliation in violation of Labor Code §1102.5(c) against
Defendant Bernardo. 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.” Defendant Bernardo is not
Plaintiff’s employer. Defendant Bernardo is the Dean of Anderson School and an employee of
Defendant Regents, who employs them both.

Plaintiff fails to cite any Legislative history or case authority interpreting Labor Code
§1102.5(c) to apply to supervisors. FEHA retaliation claims may not be brought against
individuals, despite the statutory language using the word “person.” See Jones v. Lodge at
Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1171. Although not binding, several federal
district courts have concluded that Labor Code §1102.5 does not allow for individual liability,
despite the 2014 amendment adding “or any person acting on behalf of the employer.” See
Unites States ex rel. Lupo v. Quality Assurance Services, Inc. (2017) 242 F.Supp.3d 1020, 1030;
Vera v. Con-Way Freight, Inc. (CD. Cal. 2015) 2015 WL 1546178, at *1. The Court finds the
reasoning of this federal authority persuasive.

Plaintiff’s 4th cause of action for retaliation in violation of Labor Code §1102.5 against
Defendant Bernardo is legally insufficient and fails to state a claim against him. Defendant’s
SLAPP motion is GRANTED as to the public disclosure of the Confidential Personnel Action
and the Public Attacks alleged in the 4th cause of action against Bernardo.

5th cause of action for common law retaliation as to both Defendants. Pursuant to
Government Code §815, all common law liability against a public entity was abolished, which
includes claims for common law retaliation in violation of public policy. See Lloyd v. County of
Los Angeles (2009) 172 Cal.App.4th 320, 329 (plaintiff’s common law wrongful termination and
retaliation claims failed to state a claim based on GC §815)(quoting Miklosy v. Regents of
University of California (2008) 44 Cal.4th 876, 898-899. In addition, while a public entity can
still be liable for torts committed by its employees based on respondeat superior under GC
§§815.2 and 820, the tort of retaliation cannot be stated against an individual supervisor through
whom the employer commits the tort. See Lloyd, supra.

8 March 29, 2022

 “[S]ince all California governmental tort liability flows from the California Government
Claims Act, the plaintiff must plead facts sufficient to show his or her cause of action lies outside
the breadth of any applicable statutory immunity. He or she must plead with particularity, every
fact essential to the existence of statutory liability.” City of Los Angeles v. Superior Court
(2021) 62 Cal.App.5th 129, 148.

Plaintiff cannot demonstrate that the 5th cause of action for common law retaliation is
legally sufficient against Defendants. Defendant Regents is a public entity. Defendant
Bernardo’s alleged conduct was undertaken as an employee of Regents. Plaintiff fails to cite to
any statutory basis for his common law retaliation claim against Defendants.

In his opposition to the demurrer, Plaintiff argues Labor Code §1102.5 provides him with
a statutory basis to hold Defendants liable. However, Plaintiff alleges a separate retaliation claim
based on Labor Code §1102.5 in his 4th cause of action. Labor Code §1102.5 would therefore
not salvage the 5th cause of action for retaliation.

Plaintiff fails to establish that the 5th cause of action for common law retaliation is a
legally sufficient claim as to Defendants. Defendants’ SLAPP motion is GRANTED as to the
allegations of public disclosure of Confidential Personnel Action and Public Attacks in
Plaintiff’s 5th cause of action.

6th cause of action for negligent interference with prospective economic advantage as
to Defendant Regents only. Plaintiff’s common law claim for negligent interference with
prospective economic advantage fails based on GC §815. Plaintiff fails to cite any statutory
basis to impose a duty of care on Defendant Regents. Plaintiff cites to Civil Code §§1708 and
1714.

However, the general negligence statutes are not grounds to impose direct tort liability
against a public entity. A public entity is not liable for an injury “[e]xcept as otherwise provided
by statute.” GC §815 (a). “In other words, direct tort liability of public entities must be based on
a specific statute declaring them to be liable, or at least creating some specific duty of care, and
not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of
immunity for public entities would be largely eroded by the routine application of general tort
principles.” Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183. The
intent of the California Tort Claims Act is to confine the potential for governmental liability to
rigidly delineated circumstances set forth by statute. See Zelig v. County of Los Angeles (2002)
27 Cal.4th 1112, 1127. Accordingly, public entities cannot be found liable for nonstatutory,
common law negligence. See Eastburn, supra, at 1183.

Plaintiff does not cite any statute or other authority that would allow him to state a claim
for negligent interference with prospective economic advantage against Defendant Regents.
Plaintiff therefore fails to establish that the 6th cause of action for negligent interference with
prospective economic advantage states a legally sufficient claim against Defendant Regents.
Defendant Regent’s SLAPP Motion is therefore GRANTED as to allegations regarding the

9 March 29, 2022

public disclosure of the Confidential Personnel Action and the Public Attacks contained in the 6th
cause of action.

7th cause of action for breach of Labor Code §1102. Pursuant to Labor Code §1102,
“[n]o employer shall coerce or influence or attempt to coerce or influence his employees through
or by means of threat of discharge or loss of employment to adopt or follow or refrain from
adopting or following any particular course or line of political action or political activity.” Lab.
Code, §1102. “Employer” is not defined. “However, traditionally, absent express words to the
contrary, governmental agencies are not included within the general words of a statute. The
Legislature has acknowledged that this rule applies to the Labor Code… Generally, however,
provisions of the Labor Code apply only to employees in the private sector unless they are
specifically made applicable to public employees.” Johnson v. Arvin-Edison Water Storage
Dist. (2009) 174 Cal.App.4th 729, 736 (quoting Campbell v. Regents of University of California
(2005) 35 Cal.4th 311).

In addition, the Legislature adopted express legislation to include public employees in the
definition of “employee” for purposes of Labor Code §§1102.5, 1102.6, 1102.7, 1102.8, 1104
and 1105. Although it could have included Labor Code §1102 in the list of applicable statutes
under Labor Code §1106, the Legislature refrained from doing so. Plaintiff fails to cite any other
authority that would include public entities as “employers” or public employees as “employees”
for purposes of Labor Code §1102.

Plaintiff’s 7th cause of action for violation of Labor Code §1102 is therefore legally
insufficient and fails to state a claim. Defendants’ SLAPP Motion is GRANTED as to the
allegations of public disclosure of Confidential Personnel Action and the Public Attacks in the
7th cause of action for breach of duty under Labor Code §1102.

B. Plaintiff fails to present prima facie evidence in support of the 2nd cause of action
for public disclosure of private facts

“The claim that a publication has given unwanted publicity to allegedly private aspects of
a person's life is one of the more commonly litigated and well-defined areas of privacy law.”
Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 214. The elements of the public
disclosure tort are: “(1) public disclosure (2) of a private fact (3) which would be offensive and
objectionable to the reasonable person and (4) which is not of legitimate public concern.” Id.
(summary judgment of public disclosure tort properly granted as to plaintiff’s public disclosure
tort; TV broadcast of video footage showing plaintiff’s extraction from car accident, including
her dialogue with rescue workers, was newsworthy as a matter of law and of legitimate public
concern).

“The element critical to this case is the presence or absence of legitimate public interest,
i.e., newsworthiness, in the facts disclosed.” Id. at 214. Lack of newsworthiness is an element
of the “private facts” tort that the plaintiff must plead and prove. Id. at 215. “If the contents of a
broadcast or publication are of legitimate public concern, the plaintiff cannot establish a
necessary element of the tort action, the lack of newsworthiness.” Id. “Although we speak of
10 March 29, 2022
the lack of newsworthiness as an element of the private facts tort, newsworthiness is at the same
time a constitutional defense to, or privilege against, liability for publication of truthful
information.” Id. at 216.

When “a person is involuntarily involved in a newsworthy incident, not all aspects of the
person's life, and not everything the person says or does, is thereby rendered newsworthy.” Id. at
223. “[C]ourts have generally protected the privacy of otherwise private individual involved in
events of public interest by requiring that a logical nexus exist between the complaining
individual and the matter of legitimate public interest. The contents of the publication or
broadcast are protected only if they have some substantial relevant to a matter of legitimate
public interest. Thus, recent decisions have generally tested newsworthiness with regard to such
individuals by assessing the logical relationship or nexus, or the lack thereof, between the events
or activities that brough the person into the public eye and the particular facts disclosed.” Id. at
223-224.

“[A] publication is newsworthy if some reasonable members of the community could

entertain a legitimate interest in it.” Id. at 225. It is plaintiff's burden to prove that the matter
allegedly wrongfully disclosed was not a matter of public concern, i.e., not newsworthy. See
Diaz v. Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118, 130.

“Thus, newsworthiness is not limited to ‘news’ in the narrow sense of reports of current
events. It extends also to the use of names, likenesses or facts in giving information to the public
for purposes of education, amusement or enlightenment, when the public may reasonably be
expected to have a legitimate interest in what is published.” Jackson v. Mayweather (2017) 10
Cal.App.5th 1240, 1257 (SLAPP properly granted as to defendant’s public disclosure of
plaintiff’s pregnancy, termination of pregnancy and plastic surgery, which were issues of
legitimate concern given plaintiff’s and defendant’s celebrity status and plaintiff’s regular
disclosure of personal details on social media; however, defendant’s posting of sonogram of
twins plaintiff was carrying prior to termination and plaintiff’s medical report was not
newsworthy).

“Whether a publication is or is not newsworthy depends upon contemporary community

mores and standards of decency. This is largely a question of fact, which a jury is uniquely well-
suited to decide.” Diaz, supra, 139 Cal.App.3d at 133.

Plaintiff’s 2nd cause of action is based only on the Defendants’ public disclosure of the
Confidential Personnel Action. Plaintiff’s evidence fails to establish that Defendants’ placement
of him on administrative leave was not newsworthy. As discussed in connection with the (e)(4)
analysis of Bernardo’s June 4, 2020 email, Plaintiff’s own allegations and evidence establish that
there was public interest in his email exchange with his student, that in response to the student’s
upload of his email on social media, an “online mob” was calling for his “proverbial head,” that
Bernardo place him on leave in response to overwhelming number of complaints and demands
that he be reprimanded. See FAC, ¶¶33, 34, 36, 38, 47, 51, 53, 84 (alleging Bernardo used the
public punishment to placate the “online mob” that loudly and angrily” demanded “Plaintiff’s
proverbial head”); Dec. of G. Klein ISO of Opposition to SLAPP, ¶13; Plaintiff’s Opposition to
11 March 29, 2022
SLAPP, 12:5-6.

Plaintiff’s own evidence and briefing supports a finding that the initial exchange between
himself and the student became newsworthy after it was uploaded to social media, and what
UCLA’s response would be, if any, to the alleged public outcry also became newsworthy. The
email exchange and UCLA’s response were bound up in the larger context of the murder of
George Floyd and the national turmoil that occurred thereafter, UCLA’s status as a large public
university and the larger debate over whether conduct like Plaintiff’s was subject to reprimand at
that large public university. Defendants’ evidence corroborates Plaintiff’s allegations of a public
controversy over the email exchange and how Defendants would handle the situation. See Dec.
of A. Bernardo, ¶¶8 and 9; Notice of Lodge Exhibits, Exs. E and G.

Plaintiff’s 2nd cause of action is based exclusively on the public disclosure of the
Confidential Personnel Action. Because Plaintiff fails to present any evidence or argument from
which as jury could find the Confidential Personnel Action not newsworthy, Defendants’ SLAPP
motion is GRANTED as to the entirety of the 2nd cause of action for public disclosure of private
facts.

C. Plaintiff fails to submit prima facie evidence in support of its 4th cause of action
for retaliation in violation of Labor Code §1102.5(c) against Defendant Regents

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.” Lab. Code, §1102.5(c). 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 fails to present any evidence that Defendants retaliated against him, because he
refused to grant the student’s request for accommodations for the student’s African-American
classmates, as opposed to the content and tone of Plaintiff’s June 2, 2020 email. Plaintiff
therefore fails to present prima facie evidence of a retaliatory motive in violation of Labor Code
§1102.5.

D. Plaintiff establishes prima facie evidence in support of the 1st cause of action for
breach of contract based on Defendants’ public disclosure of the Confidential Personnel
Action

The elements of breach of contract are “(1) the contract, (2) plaintiff's performance or
excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to plaintiff.”
Reichert v. General Ins. Co. (1968) 68 Cal.2d 822, 830. Plaintiff’s breach of contract is based in
part on the disclosure of Confidential Personnel Action. Plaintiff’s breach of contract is not
based on the Public Attacks.

12 March 29, 2022

 Plaintiff submits evidence from the period of February 29, 2016 to January 31, 2020, his
employment with Defendant Regents was subject to an MOU entered into between his union,
UC American Federation of Teachers and Defendant Regents. See Dec. of M. McIver, ¶4. The
MOU expired on January 31, 2020, and from February 1, 2020 onward, the parties entered into a
status quo period, in which most but not all the provisions of the expired contract remained in
effect. Id. at ¶6. McIver identifies Article 33 of the MOU and confirms that it was one of the
provisions that expired, but McIver does not discuss which other provisions were still in effect
from February 1, 2020 onward.

Plaintiff submits a copy of the MOU in effect as of June 2020, when the public disclosure
of Confidential Personnel Action took place. See Dec. of G. Klein, Ex. 18. The MOU limited
access to Plaintiff’s personnel file, personnel review records and other confidential information
“strictly…to those representatives and employees who need access to information in the
personnel file in the performance of their officially assigned duties…Members of the public and
non-governmental entities shall not have access to confidential personnel files except as required
by law.” Id.

Plaintiff submits evidence, which is undisputed, that Bernardo’s June 4, 2020 email
disclosed Plaintiff’s confidential personnel information—his placement on administrative leave,
which is a personnel issue. While Plaintiff’s name is not expressly mentioned, given
Defendants’ evidence, a jury could find that the email was clearly referring to Plaintiff and his
response to the student’s request for accommodations for African-American students and the
audience would have understood this. Plaintiff therefore presents evidence of UCLA’s breach of
the confidentiality provision of the MOU.

Finally, Plaintiff testifies that he maintains a profitable expert witness consulting practice,
which is his principal source of income. See Dec. of G. Klein, ¶22. During the relevant period,
he was serving as an expert in pending matters. Id. at ¶23. Immediately after Bernardo’s
announcement of the Confidential Personnel Action, Plaintiff was dropped from pending matters
by significant clients and his expert witness work has largely dried up. Id. Plaintiff also submits
a declaration from former client, David Fischer, who testifies that he previously hired Plaintiff as
an expert but would refrain from hiring Plaintiff now due to his public suspension. See Dec. of
D. Fischer, ¶7.

Plaintiff submits evidence in support of each element of the breach of contract claim.
Plaintiff therefore presents prima facie evidence in support of his 1st cause of action for breach of
contract.

In response, Defendant argues a public employee may not sue a public employer for
breach of contract. “[I]t is well settled in California that public employment is not held by
contract but by statute and that, insofar as the duration of such employment is concerned, no
employee has a vested contractual right to continue in employment beyond the time or contrary
to the terms and conditions fixed by law.” Miller v. State of California (1977) 18 Cal.3d 808,
813.

13 March 29, 2022

 However, as explained in Cal Fire Local 2881 v. California Public Employees’
Retirement System (2019) 6 Cal.5th 965, 977, while “contract clause protection of the terms and
conditions of public employment historically has been the exception, rather than the rule,” “the
growing prevalence of collective bargaining by public employees has dramatically increased the
number of employees whose terms and conditions of employment are governed by express
contracts, rather than solely by legislative enactments.” Cal Fire Local 2881, supra, 6 Cal.5th at
977-978. “At least for the term of their collective bargaining agreement, the employment of such
employees is largely a matter of contract, not statute.” Id. at 978.

“Thus, where the employment relationship is governed by contract, a public employee's

breach of contract claim is not simply defeated by his status as a public employee. Indeed, all
modern California decisions treat labor-management agreements whether in public employment
or private as enforceable contracts (see Lab.Code, § 1126) which should be interpreted to
execute the mutual intent and purpose of the parties. This principle has special force in the
context of public employment, inasmuch as the bargaining power of public employees has been
severely limited by statute.” Retired Employees Assn. of Orange County, Inc. v. County of
Orange (2011) 52 Cal.4th 1171, 1182–1183. “When a public employer chooses instead to enter
into a written contract with its employee (assuming the contract is not contrary to public policy),
it cannot later deny the employee the means to enforce that agreement.” Shaw v. Regents of
University of California (1997) 58 Cal.App.4th 44, 55.

Plaintiff has pled and presented evidence of a bilateral agreement governing the terms
and conditions of his employment, specifically an MOU negotiated by Plaintiff’s union with
Defendant Regents. As such, Plaintiff’s breach of contract claim is not defeated by his status as
a public employee.

E. Plaintiff submits prima facie evidence in support of the 3rd cause of action 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
14 March 29, 2022
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
(11th 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’).

Plaintiff’s 3rd cause of action for false light is based on Bernardo’s public disclosure of
the Confidential Personnel Action in the June 4, 2020 email, the failure to provide any context in
the June 4, 2020 email, including the outcome of Plaintiff’s exchange with the student, and the
insinuation in the June 4, 2020 email that Plaintiff was placed on leave because he had engaged
in conduct that violated core principles and policies of the University. To the extent Plaintiff’s
3rd cause of action for false light is based on disclosure of the Confidential Personnel Action
alone, it would fail as a matter of law, because it is undisputed that Plaintiff was in fact placed on
leave. See Jackson, supra, 10 Cal.App.5th at 1264-1265 (defendant’s statements that plaintiff had
undergone extensive plastic surgery could not support a claim for false light where plaintiff
admitted the truth of the statement).

However, Plaintiff alleges Defendants’ announcement of his administrative leave was

juxtaposed within numerous insinuations contained in the June 4, 2020 email, which cast him in
a “false light” and implied false facts. Plaintiff argues the June 4, 2020 email implied that (1) he
was placed on administrative leave because he was guilty of wrongdoing; and (2) the
wrongdoing was the specific code violations cited in the email, e.g. failing to “provid[e] a safe,
respectful and equitable environment,” “abuse of power,” “unfairly treat[ing] or malign[ing]
because of identity.” See FAC, ¶42. Defendant is not denying the content of the June 4, 2020
email.

“[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 defendant
is liable for what is insinuated, as well as for what is stated explicitly. The fact that an applied
defamatory charge or insinuation leaves room for an innocent interpretation as well does not
establish that the defamatory meaning does not appear from the language itself. The language
used may give rise to conflicting inferences as to the meaning intended, but when it is addressed
to the public at large, it is reasonable to assume that at least some of the readers will take it in its
defamatory sense.” O’Connor v. McGraw-Hill, Inc. (1984) 159 Cal.App.3d 478, 485.

A reasonable fact finder could conclude that the June 4, 2020 email implies a provably
false assertion of fact. A reasonable fact finder could determine that the June 4, 2020 email
15 March 29, 2022
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. As Bernardo testifies, 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 ISO of SLAPP
Motion, ¶15.

In fact, UCLA’s Diversity, Equity and Inclusion Bureau chose not to pursue any formal
investigation into Klein’s actions. Id. at ¶21. UCLA’s Discrimination Prevention Office also
declined to pursue any formal investigation into Klein’s actions. Id. at ¶22. UCLA therefore
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 disciplinary action for his June 2, 2020 email exchange.

In addition, a reasonable fact finder could determine that the implications of the June 2,
2020 email would have exposed Plaintiff to hatred, contempt, ridicule, or obloquy. The tone of
the email also assumes the audience will recognize such implications as garnering hatred,
contempt, ridicule, or obloquy.

Moreover, Defendant Bernardo’s failure to identify Plaintiff by name in the June 2, 2020
email does not negate Plaintiff’s showing of false light. A reasonable fact finder could determine
that, given the public furor over Plaintiff’s June 2, 2020 exchange with the student, recipients
would be able to identify the “undergraduate professor” referred to in the June 4, 2020 email as
Plaintiff. See Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 146-147
(reasonable person searching for real estate agents would not have made association between
plaintiffs and defendants’ TV show characters, despite similarities in names, occupations and
general physical appearance, because draft and synopsis did not include biographical references,
specific physical descriptions or unique identifying characteristics).

Finally, a reasonable fact finder could also conclude that, if Plaintiff were considered a
private citizen, Bernardo was “negligent in determining the truth of the information or whether a
false impression would be created by its disclosure.” CACI 1802. A reasonable fact finder
could also conclude that, if Plaintiff were considered a public figure or limited public figure,
Bernardo either “knew the disclosure would create a false impression or acted with reckless
disregard for the truth.” CACI 1802.

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, ¶¶16 and 17. Bernardo he testifies that he personally believed Plaintiff’s email was
“outrageous and inexcusable,” that his conduct was the antithesis of UCLA’s core principles and
that Plaintiff’s June 2, 2020 email was “inappropriate and callous.” Id. at ¶¶6, 7. 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 ¶15.
16 March 29, 2022
 Plaintiff also submits evidence that, on June 3, 2020, the Anderson School’s interim
director informed UCLA’s central Academic Personnel Office that the Anderson School wanted
to impose disciplinary measures against Plaintiff. See Dec. of G. Klein, ¶15. In response, the
central UCLA Academic Personnel Department’s Labor Relations Specialist stated, “The School
cannot take any action against appointment, including any discipline or non-appointment at this
time.” Id. at ¶15, Ex. 8.

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.

As with the breach of contract claim, Plaintiff presents evidence that he was harmed as a
result of the false light in which Bernardo’s email cast him. See Dec. of G. Klein, ¶¶22-23; Dec.
of D. Fischer, , ¶7. Plaintiff also submits evidence that he suffered general damages due to the
false light in which Bernardo case him, “severe emotional distress, trauma, and physical
ailments” for which he received treatment from physicians of various specialities. See Dec. of
G. Klein, ¶23.

Plaintiff presents prima facie evidence of his 3rd cause of action for false light. Plaintiff
satisfies his burden on the 2nd prong of SLAPP as to the 3rd cause of action for false light.

F. Plaintiff presents prima facie evidence to support his 6th cause of action for
negligent interference with prospective economic advantage against Bernardo

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
17 March 29, 2022
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).

Bernardo is the only remaining defendant in Plaintiff’s 6th cause of action for negligent
interference. Regents prevailed on this SLAPP as to the 6th cause of action for negligent
interference based on GC §815 and Plaintiff’s failure to identify a statutory basis to hold
Regents’ liable for Bernardo’s alleged negligent interference arising from the June 4, 2020 email
and the Public Attacks.

Plaintiff alleges independently wrongful, negligent, knowing or reckless conduct against

Bernardo based on his June 4, 2020 email. Plaintiff successfully pleads and submits evidence
that the June 4, 2020 email breached the parties’ employment agreement and qualified as the tort
of false light. As discussed Plaintiff also submits evidence of damages flowing from the
negligent interference caused by the June 4, 2020 email. See Dec. of G. Klein, ¶¶22-23; Dec. of
D. Fischer, ¶7.

However, Plaintiff fails to submit any evidence that the Public Attacks were
independently wrongful or actionable. Based on the evidence submitted, the Public Attacks were
mere statements of opinion, and they are not alleged as the basis for either the breach of contract
action or the false light cause of action.

Plaintiff presents prima facie evidence in support of the 6th cause of action for negligent
interference based on the June 4, 2020 email but not the Public Attacks. As such, Plaintiff
satisfies his burden on the 2nd prong of SLAPP only as to the June 4, 2020 email. Defendant
Bernardo’s SLAPP motion is GRANTED as to the Public Attacks alleged in the 6th cause of
action for negligent interference.

G. Defendants’ asserted affirmative defenses do not defeat Plaintiff’s 1st cause of

action for breach of contract, 3rd cause of action for false light or 6th cause of action for
negligent interference against Bernardo

“Generally, a defendant may defeat a cause of action by showing the plaintiff cannot
establish an element of its cause of action or by showing there is a complete defense to the cause
of action, and there is nothing in the language of section 425.16 or the case law construing it that
suggests one of these avenues is closed to defendants seeking protection from a SLAPP suit. [¶]
However, the defendant also generally bears the burden of proving its affirmative defenses.
Thus, although section 425.16 places on the plaintiff the burden of substantiating its claims, a
18 March 29, 2022
defendant that advances an affirmative defense to such claims properly bears the burden of proof
on the defense.” See Peregrine Funding Inc. v. Sheppard Mullin Richter & Hampton LLP (2005)
133 Cal.App.4th 658, 676 (defendant established that plaintiff investor’s claims were time barred
as a matter of law and plaintiff failed to establish likelihood of prevailing in face of that
showing).

Defendant alleges several affirmative defenses. The Court evaluates these defenses as to
those causes of action for which Plaintiff satisfied his burden on the 2nd prong of SLAPP: the 1st
cause of action for breach of contract, the 3rd cause of action for false light and the 6th cause of
action for negligent interference.

First Amendment. The First Amendment defense does not apply to the 1st cause of
action for breach of contract against Regents. Plaintiff’s 1st cause of action for breach of contract
is based on Defendant Regents’ contractual obligation not to publicly disclose the Confidential
Personnel Action. The First Amendment is waivable. “It is possible to waive even First
Amendment free speech rights by contract.” Sanchez v. County of San Bernardino (2009) 176
Cal.App.4th 516, 528 (First Amendment did not protect County’s disclosure of reasons for
plaintiff’s resignation where plaintiff and defendant entered into a severance agreement
containing a confidentiality provision prohibiting either side from disclosing circumstances of
plaintiff’s resignation)(“[W]e see no way to construe the confidentiality provision except as a
waiver of whatever rights the County would otherwise have had to disclose the circumstances of
Sanchez's resignation.”); ITT Telecom Products Corp. v. Dooley (1989) 214 Cal.App.3d 307,
319 (CC §47(b) did not apply to voluntary disclosure of trade secrets in violation of
confidentiality agreement). Thus, Plaintiff has alleged and presented evidence that Defendant
Regents waived any First Amendment right to disclose Plaintiff’s Confidential Personnel Action.
The Court cannot find that the First Amendment bars the 1st cause of action for breach of
contract as an issue of law.

Defendants fail to establish that the First Amendment Defense bars the 3rd cause of action
for false light against Bernardo as an issue of law. Bernardo was acting as an agent of UCLA
and therefore arguably subject to the MOU’s confidentiality provision and waiver of any First
Amendment right to disclose Plaintiff’s Confidential Personnel Action.

In addition, the First Amendment does not apply to defamatory speech. “The right of
free speech, however, is not unlimited. The First Amendment permits restrictions upon the
content of speech in a few limited areas…These categories include defamatory speech….”
Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129
Cal.App.4th 1228, 1249. Defendant fails to establish that the First Amendment applies to protect
statements that knowingly create a “false impression” or “false light.” See e.g. Solano v.
Playgirl, Inc. (2002) 292 F.3d 1078, 1089 (“Even though the exceptions are to be broadly
construed, the newsworthiness privileges do not apply where a defendant uses a plaintiff's name
and likeness in a knowingly false manner to increase sales of the publication. The First
Amendment does not protect knowingly false speech.”)

For theses same reasons, Defendants fail to establish that the remaining 6th cause of
19 March 29, 2022
action for negligent interference against Bernardo is barred by the First Amendment defense.
The 6th cause of action for negligent interference is based in part on Bernardo’s public disclosure
of the Confidential Personnel Action, which is also the basis of the 1st cause of action for breach
of contract and 3rd cause of action for false light.

Gov’t Code §§818.8 and 822.2. Defendants argue the 3rd cause of action for false light
against Bernardo is barred by Gov’t Code §§818.8 and 822.2. Section 818.8 provides, “A public
entity is not liable for an injury caused by misrepresentation by an employee of the public entity,
whether or not such misrepresentation be negligent or intentional.” Section 822.2 provides, “A
public employee acting in the scope of his employment is not liable for an injury caused by his
misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is
guilty of actual fraud, corruption or actual malice.”

Defendant Regents is not named in the 3rd cause of action for false light. Section 818.8
therefore does not apply.

As to Defendant Bernardo and the immunity provided to public employees under Section
822.2, the Court cannot find as an issue of law that Bernardo did not act with actual malice for
the reasons stated in connection with the scienter element of false light. In addition, section
822.2 only applies to “forms of the common law tort of deceit (codified in Civ. Code §1709) and
involve interferences with financial or commercial interests. California law generally recognizes
four forms of deceit: intentional misrepresentation, negligent misrepresentation, concealment,
and failure to perform a promise. Courts have assumed the immunities in sections 818.8 and
822.2 apply to all four forms of deceit.” Finch Aerospace Corp. v. City of San Diego (2017) 8
Cal.App.5th 1248, 1252–1253. Slander of title is not included under section 822.2, because it is
“not a form of deceit. It is a form of the separate common law tort of disparagement, also
sometimes referred to as injurious falsehood.” Id. at 1253, fn 3 (distinguishing between torts of
disparagement and deceit).

Civ. Code §47(c). “A privileged publication or broadcast is one made:… In a

communication, without malice, to a person interested therein, (1) by one who is also interested,
or (2) by one who stands in such a relation to the person interested as to afford a reasonable
ground for supposing the motive for the communication to be innocent, or (3) who is requested
by the person interested to give the information.” CC §47(c).

This privilege is “recognized where the communicator and the recipient have a common
interest and the communication is of a kind reasonably calculated to protect or further that
interest.” Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d 841, 846
(employer may publish to his employees the reasons for termination of another employee, the
rationale for the publication being the employer's economic interest in clarifying its policies and
preventing future abuses of those policies). This common interest privilege has been held to
apply to “[c]ommunications made in a commercial setting relating to the conduct of an
employee” (Cuenca v. Safeway San Francisco Employees Fed. Credit Union (1986) 180
Cal.App.3d 985, 995), “statements by management and coworkers to other coworkers explaining
why an employer disciplined an employee” (McGrory v. Applied Signal Technology, Inc. (2013)
20 March 29, 2022
212 Cal.App.4th 1510, 1538), and “uncomplimentary comments” or other statements made about
the qualifications of a former or alleged employee to a prospective employer (Noel v. River Hills
Wilsons, Inc. (2003) 113 Cal.App.4th 1363, 1369).

The “interest” must be something other than mere general or idle curiosity, such as where
the parties to the communication share a contractual, business or similar relationship or the
defendant is protecting his own pecuniary interest. See Rancho La Costa, Inc. v. Superior Court
(1980) 106 Cal.App.3d 646, 664–665 (qualified privilege does not apply “merely because it
relates to a matter which may have general public interest). Rather, it is restricted to “proprietary
or narrow private interests.” Hawran v. Hixson (2012) 209 Cal.App.4th 256, 287.

Defendants fail to establish that the common interest privilege under CC §47(c) bars the
1st cause of action for breach of contract, 3rd cause of action for false light or 6th cause of action
for negligent interference. Defendants do not provide evidence establishing who received the
disclosure of the June 4, 2020 email from Bernardo, or that the entire listserv qualified as persons
with a proprietary or narrow private interest in Plaintiff’s placement on academic leave or
UCLA’s response to Plaintiff’s June 2, 2020 email exchange.

In addition, CC §47(c) applies to communications made without malice. For the reasons
stated in connection with the scienter element of the false light claim, the Court cannot find as an
issue of law that the communication was made without malice.

Statute of Limitations. Defendants argue the 3rd cause of action for false light is barred
by the one-year statute of limitations under CCP §340(c). Defendants fail, however, to apply the
SOL and merely state in a conclusory manner that the action is time barred. Defendants fail to
carry their burden on the affirmative defense of SOL.

Moreover, Bernardo’s email was sent on June 4, 2021. During that time, the Judicial
Council’s Emergency Rules Related to COVID-19 applied and under those rules, the SOL for
any causes of action were tolled for 180 days from April 6, 2020 through October 1, 2020. See
Plaintiff’s RJN ISO Opposition to SLAPP, Ex. 1, Emergency Rule 9(a). Plaintiff’s complaint
was filed on September 27, 2021, within one year after expiration of the tolling period.

Exhaustion of Administrative Remedies. Defendant argues Plaintiff failed to comply

with the administrative remedies required under the MOU prior to filing this lawsuit. Defendant
failed, however, to identify what part of the MOU required such administrative remedies or the
nature of these administrative remedies. Defendant therefore failed to satisfy its initial burden on
the affirmative defense.

On reply, Defendant clarifies that the exhaustion of administrative remedies defense is

based on Article 32 of the MOU provision. Defendant cannot raise Article 32 for the first time
on reply. Doing so deprives Plaintiff of his due process rights, and it also deprives the Court of
the opportunity to properly evaluate the argument.

Even if the Court considered the exhaustion defense based on Article 32, Defendant does
21 March 29, 2022
not establish Plaintiff’s noncompliance therewith as an issue of law. Plaintiff submits evidence
that he complied with Steps 1 and 2 of Article 32 and submitted a request to proceed to Step 3,
but UCLA never responded to his request. See Dec. of G. Klein, ¶27, Exs. 19-20. UCLA was
required to issue some response to Plaintiff’s appeal. Id. at Ex. 20.

Defendant fails to establish that Plaintiff failed to comply with the administrative
remedies required under the MOU prior to filing suit. Defendant’s exhaustion of remedies
defense therefore does not defeat Plaintiff’s prima facie showing as to the 1st cause of action, 3rd
cause of action and 6th cause of action.

GC §821.6. Defendants reference GC §821.6 in footnote 18 as a potential defense if the

Plaintiff’s complaint is not based on Defendants’ “free speech” but the Defendants’ “referral of
the matter for investigatory review…” The SLAPP motion is directed at the June 4, 2020 email
and the Public Attacks, not Defendants’ referral of any matters for investigative review. GC
§821.6 does not defeat Plaintiff’s showing as to the 1st cause of action for breach of contract, 3rd
cause of action for false light or 9th cause of action for negligent interference.

22 March 29, 2022